Phoenix Newspapers, Inc.

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 47 (N.L.R.B. 1989)

PHOENIX NEWSPAPERS 47
Phoenix Newspapers , Inc. and Phoenix Newspapers
Guild , Local 237, the Newspaper Guild, AFL-
CIO-CLC and New Times , Inc. Cases 28-CA-
5723, 28-CA-5796, 28-CA-5904, and 28-CA-
5904-2
May 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On October 6, 1981, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The Respondent, the General Counsel, the Charg-
ing Party Phoenix Newspapers Guild, Local 237,
The Newspaper Guild, AFL-CIO-CLC (the
Union), and the Charging Party New Times, Inc.
(New Times)' filed exceptions and supporting
briefs The Respondent, the General Counsel, and
the Union filed answering briefs. Additionally, the
American Newspaper Publishers Association filed
an amicus curiae brief 2
By joint motion to withdraw charges dated Sep-
tember 28, 1983, the Union, alleged discriminatee
Bonnie Bartak, and the Respondent jointly moved
that the Board enter an order granting the with-
drawal of that portion of the charges pending
before the Board in Cases 28-CA-5723 and 28-
CA-5796 that "relate to" Bartak because she had
entered into a settlement agreement with the Re-
spondent and no longer desired to pursue the
charges concerning her.3 The General Counsel did
not oppose the motion. By Order dated November
2, 1983, the Board granted the joint motion to
withdraw charges, and dismissed the charges inso-
far as they related to Bartak.
Thereafter, the Board, on March 12, 1984, issued
a notice to parties of opportunity to submit state-
ments of position In this regard, on May 31, 1983,
the United States Supreme Court had issued its
opinion in Bill Johnson's Restaurants v. NLRB, 461
U.S 731, in which the Court addressed the issue of
alleged unfair labor practices based on the filing of
state court lawsuits.4 Because the issue considered
i The Union and New Times have requested oral argument These re-
quests are denied as the record, the exceptions, the briefs, and the posi-
tion statements adequately present the issues and the positions of the par-
ties
2 On February 12, 1982, the American Newspaper Publishers Associa-
tion (ANPA) filed a motion for leave to intervene as amicus curiae On
February 16, the Union filed a motion in opposition thereto, and, on Feb-
ruary 18, New Times also filed a motion in opposition thereto The
motion to intervene as amicus curiae is granted
a In their motion, the parties expressly stated that withdrawal was re-
quested with the reservation that the evidence in Bartak's case could still
be considered by the Board to the extent that it may be found relevant in
connection with the remaining portions of the pending charges
" At the Court's direction, Bill Johnson's was remanded to the Board to
determine whether the filing and prosecution of the employer's state
by the Court in Bill Johnson's was also raised in
this case, the Board afforded the parties an oppor-
tunity to submit statements of position on the issue
in light of the Supreme Court's opinion. Addition-
ally, the Board requested the parties to advise the
Board of the status of the state court lawsuit in-
volved in this case.
Thereafter, the General Counsel, the Union,
New Times, and the Respondent filed statements of
position
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, briefs, and state-
ments of position and has decided to affirm the
judge's rulings,5 findings,6 and conclusions only to
the extent consistent with this Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act by discharging Econom-
ic News Editor Mayne, an admitted supervisor, on
January 15, 1980, because of his failure to partici-
pate or cooperate in the Respondent's unlawful
scheme to discipline and discharge employee
Bartak 7 Subsequent to the issuance of the judge's
court lawsuit violated the Act by examining the lawsuit in terms of the
principles enunciated by the Court in its opinion In its supplemental de-
cision reported at 290 NLRB 29 (1988), the Board concluded that the
employer violated Sec 8(a)(4) and (1) by pursuing the first count of its
lawsuit, referred to as the business interference claims With respect to
the second count of the employer's lawsuit involving a libel claim, the
Board (Chairman Stephens dissenting) found no violation of the Act
s In his decision, the judge denied the Respondent's motion to dismiss
the allegations that the Respondent violated Sec 8(a)(1) of the Act by
disciplining and discharging employee Bartak because she filed charges
with the Equal Employment Opportunity Commission (EEOC) and by
discharging Economic News Editor Mayne because he refused to partici-
pate or cooperate with the Respondent's efforts to discriminate against
Bartak In light of the Board's grant of the parties' motion to withdraw
Bartak's charges, we need not pass on the judge's ruling as it concerns
Bartak However, we affirm his ruling as to Mayne In so doing, we rely
on the judge's finding that the doctrine of collateral estoppel does not
preclude litigation of these allegations before the Board because the deci-
sion of the Federal district court in Equal Employment Opportunity Com-
mission v Phoenix Newspapers, Inc, No CIV 80-404 PHX VAC (D
Ariz , Sept 4, 1980), denying the EEOC's petition for preliminary relief,
was not a final adjudication on the merits of the issues before the Board
We therefore find it unnecessary to pass on the judge's alternative ration-
ale that under Sec 10(a) of the Act the doctrine of collateral estoppel is
inapplicable to Board proceedings as a matter of law
6 The Respondent, the General Counsel, the Union, and New Times
have excepted to some of the judge's credibility findings The Board's es-
tablished policy is not to overrule an administrative law judge's credibil-
ity resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall Products, 91
NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully
examined the record and find no basis for reversing the findings
In sec I,A,1,(g) of his decision, the judge referred to City Editor Arm-
strong as managing editor This error is insufficient to affect the decision
7 During the hearing, counsel for the Respondent moved to dismiss
this allegation on the basis that Mayne and the Respondent had reached a
purported settlement whereby, inter alia, Mayne's discharge had been
converted to a resignation The Respondent's counsel also asserted that
Mayne was not due any backpay and did not desire reinstatement, and
that he no longer wanted to participate in the Board proceedings We
Continued
294 NLRB No. 3
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decision, the Board reaffirmed the well-established
principle that an employer violates the Act by dis-
charging a supervisor for refusing to commit an
unfair labor practice. See Parker-Robb Chevrolet,
262 NLRB 402 (1982), enfd. 711 F.2d 383 (D.C.
Cir 1983). In adopting the judge's finding that
Mayne's discharge violated the Act, it is clear from
the sequence of events as found by the judge that
Mayne was discharged for failing to cooperate
with the Respondent's unlawful scheme to manu-
facture a case against Bartak so as to justify her
discharge.8 In this respect, this case falls within
one of the exceptions enumerated in Parker-Robb to
the general principle that supervisory discharges
are not violative of'the Act.9 See Country Boy
Markets, 283 NLRB 122 fn. 2 (1987), enfd. sub
nom. Delling v. NLRB, 869 F.2d 1397 (10th Cir.
1989).
2. On April 1, 1980, the -Respondent filed a law-
suit for libel, conspiracy, and tortious interference
with business relationships against the Union; its of-
ficers, including John R. Lavelle, Carol J. Sowers,
Bonnie E. Bartak, and Victor A. Vogel II (all em-
ployees of the Respondent); and International
Union Representative Willard Hatch. i 0 In further-
find that the judge properly denied this motion and conclude that it will
not effectuate the purposes and policies of the Act to honor this purport-
ed settlement Significantly lacking is any indication in the record that
this private arrangement takes into account the employee rights that are
the basis of the particular violation alleged or that the arrangement other-
wise meets the various criteria relevant to consideration of such a
motion See, e g, Independent Stave Co, 287 NLRB 740 (1987) With re-
spect to the Respondent 's assertion that Mayne is not due any backpay
and does not desire reinstatement , we follow our normal practice and
leave these matters to be resolved during the compliance stage
Member Cracraft notes that the Respondent did not file an exception
to the judge 's failure to defer to the alleged private settlement agreement
concerning Mayne She therefore expresses no view on this matter
Member Cracraft joins her colleagues in leaving issues of reinstatement
and backpay for compliance
8 As noted , above at in 3, the parties, in settling the charges concern-
ing Bartak , expressly reserved consideration of the evidence on these
charges as its relates to the remaining allegations in this proceeding The
credited evidence establishes that the Respondent placed Bartak on pro-
bation , extended her probation , reassigned her to night police beat report-
er, and discharged her, all because of her protected concerted activities
Although those actions are no longer before us as alleged violations of
Sec 8(a)(1), we adopt the judge's findings that the Respondent 's treat-
ment of Bartak was unlawful insofar as those findings form a necessary
part of his conclusion that Supervisor Mayne's discharge violated the
Act See Meyers industries, 281 NLRB 882 (1986) (Meyers II), enfd sub
nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) We find it unneces-
sary to decide whether the Respondent 's actions against Bartak were un-
lawful on the additional ground that they were motivated by her union
activities
9 Thus, we do not rely on the cases cited at fn 63 of the judge 's deci-
sion , which are distinguishable . from the violation found here and were
specifically overruled by Parker-Robb, supra, at fn 20, to the extent they
were inconsistent with that decision
10 The lawsuit, styled Phoenix Newspapers, Inc v New Times, Inc, et
a!, No C408065, was filed in the Superior Court of the State of' rizona,
in and for the county of Maricopa The suit was also filed against another
local news organization , the New Times and its publisher , editor, and
managing editor With respect to the New Times defendants , we agree
with the judge ' s alternative finding that any remedies to which they
might be entitled as a result of the Respondent's suit against them are not
to be found under the National Labor Relations Act On that ground, we
ance of its suit, the Respondent took depositions of
Hatch, Lavelle,,and Bartak and former union presi-
dent, Jack Swanson, and subpoenaed certain
records from the latter as well. In October 1982
the superior court granted summary judgment in
favor of the union defendants and dismissed the
Respondent's complaint against them without af-
fecting the union defendants' pending counter-
claims Thereafter, in November 1982, the Re-
spondent and the union defendants effectively set-
tled the suit by the Respondent's agreement to
forgo appeal of the grant of summary judgment
and by the union defendants' agreeing to drop their
counterclaims.
The suit, which sought, inter alia, general dam-
ages and $10 million in punitive damages from the
union defendants, was based, in pertinent part, on a
report in the Union's own internal newsletter, a
bulletin titled "Update," describing the basis for an
unfair labor practice charge of unlawful surveil-
lance of, and retaliation against, union supporters,
which the Union had recently filed against the Re-
spondent. That charge, as the Union had explained
in its transmittal letter to the regional office, was
based in part on alleged evidence that the Re-
spondent had made up a "hit list" of union activists
to be targeted for discharge or other retaliatory ac-
tions and that the Respondent had tapped the tele-
phone of at least one union officer. The notice in
"Update" informed bargaining unit members about
the charge and the basis for it and advised them of
an upcoming meeting in which the charge would
be discussed. The notice also requested any mem-
bers who thought their own rights had been violat-
ed by the Respondent to discuss the matter with a
union representative. This bulletin was distributed
on February 22, 1980, through the usual channels
to the members-by deposit in their mailboxes at
the Respondent' s main office for those who
worked at that location, by mailing to the homes of
those who worked in suburban offices, and by
posting on employee bulletin boards in the news-
rooms where the unit employees worked.
According to the Respondent's publisher, Tully,
the Respondent filed its lawsuit because the unfair
labor practice charge filed by the Union did not
itself specifically allege that the Respondent had
engaged in wiretapping, and because the Respond-
ent believed that the "Update" article, indicating
that the Respondent would be or had been charged
by the Union with wiretapping, impugned the
credibility of the Respondent's newspaper in the
eyes of the community and also had the potential
adopt the judge 's dismissal of the 8 (a)(1) allegations with respect to the
New Times
PHOENIX NEWSPAPERS
effect of "drying up" the Respondent's confidential
sources
Considering the merits of the suit to be irrelevant
to this proceeding, the judge found that the suit
had been filed in good faith based on the above-de-
scribed testimony of Tully According to the
judge's analysis, this finding of good faith estab-
lished both a reasonable basis for the Respondent's
filing the suit and a lack of retaliatory motive on
the Respondent's part The judge, therefore, con-
cluded that the Respondent did not violate Section
8(a)(1) of the Act by filing its suit against the union
defendants. We do not adopt the judge's analysis
and conclusion because we find that they are con-
trary to Bill Johnson's Restaurants v. NLRB,11
which issued subsequent'to the judge's decision.
In Bill Johnson's the Supreme Court held that
while it is an enjoinable unfair labor practice to
prosecute a baseless lawsuit with a retaliatory
intent, the filing and prosecution of a well-founded
lawsuit may not be enjoined as an unfair labor
practice, even if the lawsuit was motivated by a
desire to retaliate against employees who had exer-
cised their rights under the Act. The Court stated
that if a pending state lawsuit has a "reasonable
basis" in law or fact, the Board may not enjoin the
suit, but must stay its unfair labor practice proceed-
ing until the state court suit is resolved. 12 If the re-
spondent prevails in state court, i.e., if the state
court finds merit in the suit, then, the Court held,
the respondent should also prevail before the
Board.13 Motive in such a case would therefore be
irrelevant to a determination of whether the re-
spondent had committed an unfair labor practice.
The Court, however, , further stated that where
the state court judgment goes against the respond-
ent, or the suit is "withdrawn or is otherwise
shown to be without merit," the Board may pro-
ceed to resolve the unfair labor practice case.14 In
resolving the case in those circumstances, the
Board may consider the state court lawsuit's lack
of merit as one factor in deciding whether the suit
was motivated by retaliatory purposes.' s
The factual context before us is somewhat differ-
ent from the one faced by the Supreme Court in
Bill Johnson's or by,the judge below, because when
the judge considered this case the libel suit against
the union defendants was still pending in state
court. Since then, however, summary judgment in
favor of the union defendants has been entered and
the Respondent has waived any right to appeal that
11 461 U S, 731 (1983)
12 461 U S at 744-746
461 U S at 747
14 Id
15 Id
49
judgment. Thus, we need not decide here whether
a pending lawsuit constitutes an unfair labor prac-
tice. As the Court stated in Bill Johnson's at 747, in
circumstances in which the employer does not pre-
vail in the state court, once "the employer has had
its day in court, the interest of the State in provid-
ing a forum for its citizens has been vindicated, and
the Board may then proceed to adjudicate the . ., .
unfair labor practice case." Thus, under the analy-
sis 'of Bill Johnson's, we direct our attention to
whether the two prerequisites to finding a violation
of Section 8(a)(l)-a meritless suit and a retaliatory
motive-are present.
We find that both requirements of Bill Johnson's
are satisfied here First, the summary judgment in
favor of the union defendants, which was not dis-
turbed by the parties' subsequent November 1982
settlement, constituted an adjudication establishing
that the suit involving the union defendants lacked
a reasonable basis in law or fact In this regard, we
note that the Supreme Court stated at 461 U.S. at
749 fn. 15 that,
although the Board is not bound in a res judi-
cata sense by such a state-court ruling, we see
no reason why the state court's own judgment
on the question whether the lawsuit presents
triable factual issues should not be entitled to
deference. In any event, such a state-court de-
cision should not be disregarded without a
cogent explanation for doing so.
Thus, although we are cognizant of the fact that
the Respondent here agreed to forgo any right to
appeal the summary judgment in exchange for the
Union's agreement to forgo any counterclaims, by
the same token, the Respondent has presented no
cogent explanation why the state court's determina-
tion on the existence of triable issues should not be
given deference, and, accordingly, we accept the
court's disposition of that issue.16
Second, in pursuing its meritless suit, the Re-
spondent admittedly sought large punitive damages
from the Union and from employee-members solely
because, as union officers, those employees were
16 Cf, Bill Johnson's, 290 NLRB 29 (1988) Chairman Stephens agrees,
for the reasons stated above, that the suit lacked a reasonable basis in fact
and law, and under his separate opinion concurring and dissenting in Bill
Johnson's, supra, he reaches the same conclusion on the merits as well As
the discussion below regarding the Respondent's retaliatory motive
makes clear, the Union and its officers were not acting maliciously, i e ,
with knowledge of the falsity of their statements or with reckless disre-
gard of the truth, when they communicated with their members about
the unfair labor practice charge, they had filed with the Board and what
they believed was the factual basis for that charge Hence, under the
standard of Linn v Plant Guard Workers, 383 U S 53, 61-65 (1966),
which states the applicable Federal standard for libel lawsuits filed
against unions and their officers over matters pertaining to labor disputes,
the Respondent's lawsuit clearly lacked merit See also Letter Carriers Y
Austin, 418 U S 264, 272-273 (1974)
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
responsible for written communications directed to
fellow employees specifically concerning unfair
labor practices' that they believed, in good faith,
had been committed against employees. 17 The law-
suit, therefore, based on that conduct, was in "re-
taliation" for that conduct. In this regard, the
Union's written communication is concerted con-
duct that is directly related to the employees' terms
and conditions of employment. As such, it is pro-
tected under Section 7 of the Act in the absence of
some aspect that would forfeit that protection, and
we find none Thus, the "Update" article discussing
the charges was contained in an internal organ di-
rected at the Union's own membership and the em-
ployees the Union represents. Moreover, even if
the article failed to distinguish precisely between,
on the one hand, the contents of the actual charge
and, on the other, the Union's stated basis for the
charge or in some other manner might be said to
reflect bias or hyperbole, it cannot be said that the
article was so reckless or maliciously untrue as to
lose the Act's protection. 18 In our view then, the
good faith or sincerity of Tully's asserted reasons
for filing the suit cannot alter the essential fact that
the lawsuit and the sizable damages sought were
unequivocally aimed directly at protected concert-
ed activity. 19
Under these circumstances and particularly in
light of the judgment rendered by the state court,
we find that the Respondent's motivation in filing
the suit was retaliatory and thus meets the test
posed by the Supreme Court in Bill Johnson 1S.20
17 Although the Regional Director ultimately did not issue a complaint
on the relevant portion of the Union 's surveillance allegation , it is clear
that the evidence possessed by the Union , as more fully detailed in the
judge 's decision , gave it a good-faith basis for filing its charge and , a.for-
tiori, for discussing with its members the basis for filing the charge
18 See , e g , Professional Porter & Window Cleaning ' Co, 263 NLRB 136,
149 (1982), enfd mem sub nom NLRB v Propoco, Inc, 742 F 2d 1438
(2d Cir 1983 ) (employee letter to the employer ' s main customer that at-
tacked the quality of service the employer performed for that customer
was protected activity), Allied Aviation Service Co of New Jersey, Inc , 248
NLRB 229 ( 1980) (dissemination to the employer's customers letters rais-
ing questions about the safety of the employer 's maintenance procedures
was protected activity ), and Richboro Community Mental Health Council,
242 NLRB 1267, 1268 (1979 ) (employee ' s written criticism of employer's
operations was protected activity ) See also Mitchell Manuals, Inc, 280
NLRB 230 ( 1986), and Emarco , Inc, 284 NLRB 832 (1987 ) We also note
in this regard that the state court specifically found "the publication of
the Update Guild members to be absolutely privileged "
19 See generally NLRB v Burnup & Sims, 379 U S 21 ( 1964) (good-
faith but ' mistaken belief as to the employee 's misconduct not defense to
8(a)(1) allegation ) In this regard we note that in many cases involving
employer sanctions against arguably protected activity that is alleged to
be libelous or disloyal , the employers raise sincere and quite tenable
grounds for the argument that their actions were not motivated by the
mere fact that employees were engaged in protected activities but rather
were induced by alarm at the injurious effects of the protected activity
The Board in these cases did not take issue with the employer's asserted
motives but nonetheless found the alleged violations See Bettcher Mfg
Corp , 76 NLRB 526 ( 1948), and cases cited above at fn 18
20 See American Pacific Concrete Pipe, 292 NLRB 1264, 1265 (1989)
(circumstantial evidence sufficient to establish a retaliatory motive)'
Accordingly, we conclude that the Respondent, by
filing and pursuing the lawsuit against the union
defendants, violated Section 8(a)(1) of the Act 21
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 5.
"3. By filing and pursuing its lawsuit in the Su-
perior Court of the State of Arizona, seeking gen-
eral and punitive damages against the union de-
fendants for the February 22, 1980 `Update' article
that publicized the Union's pending unfair labor
practice charge, the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
"5. The Respondent has not violated the Act in
any other manner alleged in the consolidated com-
plaints."
AMENDED REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. 22
2 i Member Cracraft agrees with the judge that the Respondent did not
violate the Act by filing the state court lawsuit She finds that the suit
was not filed for a retaliatory motive and does not reach the question of
whether the suit lacked merit
As the majority recognizes , the judge found , based on the credited tes-
timony of Publisher Tully, that the Respondent filed the lawsuit because
the unfair labor practice charge in Case 28-CA-5723 did not specifically
allege that the Respondent had engaged in wiretapping and because the
Respondent believed that the published articles, indicating that the Re-
spondent would be or had been charged by the Union with wiretapping,
impugned the credibility of the Respondent's newspaper in the eyes of
the community and also could have an adverse effect on the Respond-
ent's confidential sources of news Relying on Tully' s testimony, the
judge concluded that the Respondent "filed the lawsuit in good faith,
without an intent to retaliate against any of the defendants because they
engaged in activity protected by the Act " Member Cracraft regards the
judge 's credibility resolution as controlling and as the factor that distin-
guishes the instant case from American Pacific Concrete Pipe, supra at fn
20
Her colleagues appear to equate the filing of a lawsuit as a result of
protected activity with filing of a lawsuit in retaliation for protected ac-
tivity The Respondent 's filing of the lawsuit followed the Union's pro-
tected activity and no doubt might not have occurred had the protected
activity not occurred because there might not have been any references
to wiretapping Thus , the lawsuit was "a result of," in layman 's terminol-
ogy, the protected activity, but not , in a legal sense, in retaliation for the
protected activity
Finally, in Member Cracraft 's view, the cases cited in fns 18 and 19,
above , merely illustrate the general rule that motive is not an essential
element of most 8(a)(1) violations Based on her reading of the Supreme
Court' s Bill Johnson 's opinion, however, Member Cracraft does not be-
lieve that this case falls within that general rule
22 Having adopted the judge 's finding that the Respondent unlawfully
discharged Mayne , we shall order the Respondent to take the affirmative
action in the remedy section of the judge' s decision except that interest
shall be computed in accordance with our decision in New Horizons for
the Retarded , 283 NLRB 1173 (1987)
PHOENIX NEWSPAPERS 51
Having found that the Respondent's filing and
pursuit of the lawsuit against the union defendants
violated the Act, we shall order the Respondent to
reimburse the union defendants-the Union; its offi-
cers, including John R. Lavelle, Carol J. Sowers,
Bonnie E. Bartak, and Victor A. Vogel II; and
International Union Representative Willard
Hatch-for all legal and other expenses they in-
curred in defending the Respondent's suit. See La-
borers Northern California Council (Baker Co.), 275
NLRB 278 (1985).
ORDER
The National Labor Relations Board orders that
the Respondent, Phoenix Newspapers, Inc., Phoe-
nix, Arizona, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating
against supervisors for refusing to participate or co-
operate with the Respondent in interfering with
employees' protected concerted activities
(b) Filing or pursuing a baseless lawsuit against
the Phoenix Newspapers Guild, Local 237, the
Newspaper Guild, AFL-CIO-CLC, its officers (all
employees of the Respondent) and an International
union representative in retaliation for employees
engaging in protected concerted activities.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer John Mayne Jr. immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section
of the judge's decision and at footnote 22 of this
decision.
(b) Remove from its files any reference to the
unlawful discharge of John Mayne Jr. and notify
him in writing that this has been done and that the
discharge will not be used against him in any way.
(c) In the manner set forth in the remedy section
of this decision, reimburse Phoenix Newspapers
Guild, Local 237, the Newspaper Guild, AFL-
CIO-CLC, and its officers, John R. Lavelle, Carol
J. Sowers, Bonnie E. Bartak, Victor A. Vogel II,
and International Union Representative Willard
Hatch, for legal and other expenses incurred in de-
fense of the lawsuit styled as Phoenix Newspapers,
Inc. v. New Times, Inc., et al., No. C408065, in the
Superior Court of the State of Arizona, in and for
the county of Maricopa
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Phoenix, Arizona, copies
of the attached notice marked "Appendix."23
Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discrimi-
nate against supervisors for refusing to participate
or cooperate with us in interfering with employees'
protected concerted activities.
WE WILL NOT file or maintain baseless lawsuits
against the Phoenix Newspapers Guild, Local 237,
the Newspaper Guild, AFL-CIO-CLC, its officers
(who were our employees) and an International
union representative in retaliation for our employ-
ees' engaging in protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer John Mayne Jr. immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify John Mayne Jr. that we have
removed from our files any reference to his unlaw-
ful discharge and that the discharge will not be
used against him in any way.
WE WILL reimburse Phoenix Newspapers Guild,
Local 237, the Newspaper Guild, AFL-CIO-CLC,
and its officers, John R. Lavelle, Carol J. Sowers,
Bonnie E. Bartak, Victor A. Vogel II, and Interna-
tional Union Representative Willard Hatch, for
legal and other expenses incurred in defense of our
lawsuit styled, as Phoenix Newspapers, Inc. v. New
Times, Inc., et al., No. C408065, in the Superior
Court of the State of Arizona, in and for the
county of Maricopa.
PHOENIX NEWSPAPERS, INC.
Michael J. Karlson and Jane Goldman, Esqs., for the Gen-
eral Counsel
Daniel F. Gruender, Marshall Anstandig, and Susan Bolton
(Shimmel, Hill, Bishop & Gruender), for the Respond-
ent.
Richard Pattison , for the Charging Party Union.
Ronald A. Lebowitz and Shirley H Frondorf, for the
Charging Party New Times, Inc
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge The
hearing in this consolidated proceeding, which was held
on several days commencing February 23 and ending
March 3, 1981, is based on unfair labor practice charges
filed against Phoenix Newspapers, Inc (Respondent) by
Phoenix Newspapers Guild, Local 237, the Newspaper
Guild, AFL-CIO, CLC (the Union) in Cases 28-CA-
5723, 28-CA-5796, and 28-CA-5904 and by New Times,
Inc. (New Times) in Case 28-CA-5904-2 The charges
in these cases were filed in 1980 on February 20, April 7,
May 29, and June 5, respectively, and the one in Case
28-CA-5723 was amended March 25, 1980 On various
dates in 1980 the Regional Director for Region 28 of the
National Labor Relations Board, on behalf of the Board's
General Counsel, issued complaints in each of the cases
that have been consolidated for hearing The allegations
of the consolidated complaints litigated in this proceed-
ing' allege in substance that Respondent violated Section
' The parties , prior to the hearing , entered into an all party settlement
agreement in Cases 28-CA-5723 and 28-CA-5904 that disposed of cer-
tain alleged violations of Sec 8(a)(5) and (1) of the Act that were with-
drawn from the complaints in those cases
8(a)(3) and (1) of the Act by placing on probation, trans-
ferring, reassigning, and terminating its employee, Bonnie
Bartak , because she complained to the Equal Employ-
ment Opportunity Commission about her own and other
employees' terms and conditions of employment and be-
cause she assisted the Union or engaged in other protect-
ed concerted activity, violated Section 8(a)(1) by termi-
nating its supervisor Jack Mayne Jr , because he refused
to participate or cooperate in Respondent's efforts to dis-
criminate against Bartak and in order to discourage its
employees from supporting the Union or engaging in
other protected concerted activity, and violated Section
8(a)(1) by instituting a lawsuit in state court against the
Union and its officers and against New Times and its
publisher, managing editor, and editor The complaint al-
leges that the filing of the lawsuit tended to interfere
with employees' statutory right "to seek access to the re-
medial processes of the Board and employees' rights to
file unfair labor practice charges with the Board" and
was filed "because [said defendants] engaged in union or
other concerted activities for their mutual aid or protec-
tion." Respondent filed answers to the several complaints
denying the commission of the alleged unfair labor prac-
tices 2
On the entire record,3 from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs submitted by the parties,' I make the
following
FINDINGS OF FACT
The Alleged Unfair Labor Practices
A. Respondent's Conduct Against Bartak and Mayne
1 The evidence
a. Respondent's business; Bartak and Mayne; and
Bartak's alleged union and concerted activities
Respondent publishes two daily newspapers in Phoe-
nix, Arizona, the Arizona Republic and the Phoenix Ga-
zette as well as the Arizona Weekly Gazette This case
concerns primarily the Arizona Republic During the
greater part of the material time the Republic's associate
publisher and general manager was Darrow (Duke)
Tully, its managing editor was Robert Early, its city
editor was Howard Armstrong, and Armstrong' s assist-
ant was Assistant City Editor Paul Schatt
2 In its answers Respondent admits that it is an employer engaged in
commerce within the meaning of Sec 2(6) and (7) of the Act and meets
the Board's applicable jurisdictional standard and that the Union is a
labor organization within the meaning of Sec 2 (5) of the Act
3 The General Counsel's unopposed motion to correct the record is
granted
" Respondent 's motion to strike certain portions of the General Coun-
sel's brief on the ground that the brief misquotes or-misstates the record
has not been considered because it is in the nature of an answering brief
and as , the General Counsel notes in opposition to the motion, the
Board's Rules and Regulations do not provide for such a brief Of course
the parties can be assured that I have read the record and insofar as the
briefs submitted by the parties inadvertently mistate the record I have not
relied on the misstatements
PHOENIX NEWSPAPERS
Bonnie Bartak worked as a reporter in the newsroom
of the Republic She began work there in 1966 as a teen
reporter. While attending school she worked for the
paper as a proofreader, a teen editor, and a summer
intern. In March 1973, following graduation from col-
lege, Bartak became a permanent employee of the paper.
She worked as a teen editor for 3 months, spent 4
months as a general assignment reporter, and in the fall
of 1973 was assigned to cover the minority affairs beat
Bartak then worked as a superior court reporter for 2 or
3 months and in the spring of 1977 was transferred to the
city hall beat At the time several other reporters also
covered this beat but within 6 or 7 months Bartak was
assigned to the beat-alone and continued to cover it by
herself until June 1979 when she was assigned to the
urban affairs beat.
John Mayne Jr began to work for the Arizona Repub-
lic in May 1977 as night editor Mayne had 20 years of
experience as a journalist prior to his employment with
the paper, including jobs as city editor of the Seattle
Post Intelligence and assistant chief of the Associated
Press' New England Bureau Mayne was employed by
Respondent as night editor, then night city editor and
chief of the Arizona Republic's legislative bureau and in
September 1978 was appointed economic news editor
Mayne was considered to be a part of management and
was a supervisor within the meaning of the Act
On February 13, 1978, pursuant to a Board-conducted
representation election, the Union was certified as the ex-
cluive bargaining representative of the full-time and reg-
ular part-time employees employed in the Arizona Re-
public's, the Phoenix Gazette's, and the Arizona Weekly
Gazette's editorial departments, newsrooms, proofrooms,
libraries, and photo laboratories During the material
time Respondent employed about 275 unit employees.
The parties were unable to agree to the terms of a col-
lective-bargaining agreement and immediately after the
end of the certification year a group of workers peti-
tioned for a decertification election that was conducted
on March 17 and 18, 1979. A majority of the voters cast
their ballots for the Union, which was recertified The
parties resumed negotiations that reached an impasse on
or about April 23, 1979, at which point Respondent im-
plemented its last bargaining proposal The parties as of
the dates of the hearing in this case, February through
March 1981, had not reached agreement on the terms of
a collective-bargaining agreement.
Bartak was one of the leading union adherents among
the Respondent's employees She has been the Union's
secretary since 1978 when she was elected to this posi-
tion In the spring of 1979 she actively campaigned on
behalf of the Union in connection with the decertifica-
tion election In addition, during April 1979, starting on
April 22, when the Union picketed Respondent's place of
business for 6 days, Bartak walked the picket line with
40 other employees Bartak appeared on the television
evening news to explain the purpose of the Union's
picket line to the public On about July 1, 1979, Bartak
was elected by the membership to represent the Union at
the International union's convention The notice of her
election was posted for several days on the Company's
bulletin board
53
In January 19795 a substantial number of the Arizona
Republic's women workers employed in the newsroom
concluded that they were not receiving the same treat-
ment as the men employed in similar positions and decid-
ed to complain to management. They designated Bartak
as their spokesperson Bartak arranged a meeting with
Managing Editor Early for February 9 at which time
Bartak, with approximately 20 other women employees,
met with Early who was immediately joined by the Re-
spondent's employee relations director Eldon Case
Bartak spoke from an outline.6 She stated she was
acting as the group's spokesperson and that the group
thought that the women employed by the Republic were
being discriminated against in the areas of hiring, promo-
tions, and wages. She presented evidence to support
these allegations and near the end of her opening state-
ment informed Early and Case that there were several
things management could do immediately about the
women's grievances, especially in the area of hiring and
promotions She stated that women should be hired in at
competitive salaries regardless of their experience and
that women should be considered for promotions for all
positions On the subject of salaries Bartak acknowl-
edged that wages were currently the subject of negotia-
tions between Respondent and the Union and stated that
the women felt that the "ultimate solution" to their
grievance about wages was going to be a collective-bar-
gaining agreement that provided for a minimum wage
with all workers being paid equally for equal work
Bartak ended her opening statement by warning Early
and Case that if the women did not receive satisfaction
they would "not stop short of turning to the federal gov-
ernment for assistance "
The only other employee who spoke was Carol
Sowers who asked one or two questions Case asked
other employees who were present to express their
views. In response he was informed by an employee that
Bartak was their spokesperson
Early and Case, in response to Bartak's presentation,
replied in effect that along with Associate Publisher
Tully they had only recently assumed their current man-
agerial positions and that this, plus the current contract
negotiations with the Union, made it impossible to
remedy certain inequities that had been in existence long
before they assumed their new positions Early assured
them he had never discriminated on the basis of sex and
did not intend to do so in the future, but would not favor
an employee because she was a women He would base
his decisions about wages and promotions on a worker's
competence. Bartak stated that the women expected
action and warned that "if the company does not act, we
will act " Bartak also stated that they were aware of the
negotiating situation and although they could "act inde-
pendent of that," that at that time they just wanted "to
go on record as to where we stand "
Early indicated he was glad that the women had ex-
pressed their grievances. Bartak at this point challenged
Early to treat the women equally with the men in hiring
5 All dates herein unless otherwise stated refer to 1979
6 The description of this meeting set forth here is based on the tran-
script of a tape recording of the meeting
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and promotions and to pay them comparable salaries and
told Early, "we want you to go to the bargaining table
and represent our point of view, because we are a sepa-
rate interest and we want that known ." Case informed
Bartak that Respondent 's position , as illustrated by its
wage proposal to the Union during contract negotiations,
was that employees would be paid not on the basis of
whether they were men or women , but on the basis of
their ability to do the job and that, this was why Re-
spondent was proposing a discretionary wage increase at
the bargaining table in opposition to the Union's pro-
posed across-the -board wage increase . Bartak stated that
the women favored the Union 's across-the-board wage
proposal.
In February , soon after Early's meeting with the
women , Early expressed his unhappiness about the meet-
ing to his supervisors . Early, according to the undisputed
and credible testimony of Mayne,' at a regular supervi-
sory meeting held in February told the supervisors that a
delegation of women reporters had met with him. Early
discussed this meeting for about 20 minutes and stated to
the supervisors that he was personally offended that such
allegations as sex discrimination and other alleged im-
proper activities had been expressed , that he was offend-
ed that the women had brought such complaints against
him because he had fought alongside of them and stated
that he felt "very upset that they would charge him with
such problems."
On February 23, Bartak, with about 40 other employ-
ees from the Arizona Republic and Phoenix Gazette, met
with Respondent 's associate publisher and general man-
ager , Darrow (Duke) Tully.8 Bartak was the spokesper-
son for the Republic's employees. She informed Tully
that the purpose of the meeting was to talk about the
employment problems of the professional women em-
ployed by the Republic and Gazette and that she would
make a presentation on behalf of the Republic's employ-
ees and reporter Linda Kauss would do the same for the
Gazette's workers. Tully, who noticed that Bartak was
speaking with the assistance of an outline and that the
meeting was being tape recorded, stated that he wanted
a copy of Bartak 's outline and the tape . Bartak agreed to
comply with these requests.
Bartak stated that the women who worked for the Re-
public felt that they had been discriminated against in
connection with hiring, promotions , and wages and went
on to describe their grievances at great length . Bartak
then stated that the women felt that the newspaper could
begin to remedy their grievances by instituting an affirm-
ative action plan, a training program for newly hired em-
7 In crediting Mayne 's testimony here and in other instances in this de-
cision , I have taken into account that I have discredited his testimony
about his alleged conversation with Armstrong and Schatt regarding the
"hit list" and the fact that he admittedly lied to management when he
denied responsibility for that rumor . On the other hand, Mayne 's testimo-
ny about other matters , including the matter here, which I have relied on
in this decision , was given in a sincere and straightforward manner and in
presenting his testimony , other than in the case of hii 'conversation with
Armstrong and Schatt about the so-called hit list, Mayne 's manner of tes-
tifying, his demeanor , impressed me favorably.
8 The description of this meeting , which is set forth here, is based on a
transcript of a tape recording of this meeting , which was offered into evi-
dence by all parties.
ployees, and a more formal procedure with respect to
promotions so that the women could be assured that they
were being considered for promotions . On the subject of
wages , Bartak told Tully that the women wanted a
system that would assure them that they were being paid
equally with men for doing equal work and believed the
best way to accomplish this was through a collective-
bargaining agreement . In concluding her opening state-
ment Bartak warned Tully that if the women's griev-
ances were not dealt with by Respondent that the
women would not stop short of turning to the Federal
Government for a solution to their grievances.
Tully replied that he did not respond well to intimida-
tion, did not like being put between the NLRB and the
EEOC, and stated that he had a reputation for fairness
and suggested that the women check out his past record
with the other newspapers for whom he had worked.9
Tully also stated that he was not allowed to discuss a
contract with them because it might be construed as an
unfair labor practice and that in view of the decertifica-
tion petition he had to be very careful about what he
said or did in connection with employees ' terms and con-
ditions of employment . Bartak told him that "this activi-
ty has nothing to do with the [Union ], this is a women's
issue ." Tully answered, "the fact of the matter is that
one mistake on my part in this room will wind up with
an unfair labor practice ." Bartak assured him that the
women were not trying to trap him into committing an
unfair labor practice. Tully stressed that due to the cir-
cumstances of the decertification petition his hands were
tied and he could not do anything at that time to resolve
their grievances but that they should check into his repu-
tation for fairness.
Bartak informed Tully that the women would like to
see some evidence of Tully's reputation for fairness and
that she thought the newspaper could begin an affirma-
tive action plan immediately. Tully replied that the sub-
ject of affirmative action was an issue proposed by the
Union during negotiations and that Tully was unable to
negotiate with the women about this matter . Bartak
stated the women did not want to negotiate with Tully,
but just wanted to tell him that they felt there were cer-
tain things that could be done to remedy their griev-
ances, but did not want to negotiate with Respondent.
Tully stated that due to the circumstances with the
Union and the pendency of the decertification petition
that the women would have to be patient for a while
longer and if they were not willing to wait they could
go to the EEOC and file charges that day, that this was
their privilege, but that the EEOC would not solve their
grievances and Tully was not intimidated by the EEOC.
Bartak assured Tully that the women were willing to
give Respondent some time to show them evidence of
movement and she hoped Tully would accept the chal-
lenge. The meeting ended at this point.
As the meeting broke up Bartak gave Tully a list of
materials that had been prepared by the women in sup-
port of their individual grievances . Tully accepted this
material and told Bartak to give him the tape recording
8 Tully had only been with Respondent for about 6 or 7 months
PHOENIX NEWSPAPERS 55
of the meeting as soon as she could because he wanted
to give it to the Respondent's lawyers 10
When, by early March Bartak had not given Tully her
outline and copy of the tape recording of the February
23 meeting, Tully told Managing Editor Early to speak
to Bartak about the matter because he wanted the Com-
pany's lawyer to listen to the tape and that if necessary
Respondent would have the tape transcribed for Bartak
Early spoke to Bartak about this Bartak told him she
had been busy with work and other personal matters and
because of this had not had the time to make a copy of
the tape recording that she said was of such poor quality
that she was trying to prepare a manuscript for Tully's
use Early told her that Tully wanted the tape so Re-
spondent's lawyer could hear it and told Bartak that
Tully thought a reasonable time had elapsed since the
February 23 meeting and that Tully was "fairly serious"
about wanting the tape Bartak stated she would get to it
when she could, explaining to early that there had been
no agreement between herself and Tully that she had to
submit the tape to him within any fixed period of time i i
Early relayed Bartak's response to Tully. When Bartak
still had not submitted the tape recording or outline by
March 20, on that date, Tully wrote Bartak expressing
his dissatisfaction over her failure to comply with her
promise to furnish him with a copy of the outline and
tape of the February 23 meeting and informed Bartak
that he considered this to be a breach of their agreement
and reprimanded Bartak in this language
I can only find your attitude one of gross and
calculated insubordination I am, therefore, request-
ing for the last time a copy of your original outline
and the tape recording as agreed to. I want this ma-
terial on my desk by [M]onday morning, March 26,
at 9 am or you will be placed on indefinite suspen-
sion without pay.
If you are having difficulties getting the tape re-
produced we will be glad to do it for you
A copy of this letter is being placed in your per-
manent personnel file
On March 23 Bartak complied with Tully's request and,
in a covering letter, explained to him the reasons for the
delay and that she had made known the reasons for the
delay to Early and protested the fact that Tully had even
considered disciplinary action against her and asked that
"TheTh portion of the meeting set out in this paragraph is based on
Tully's credible testimony It does not show up on the tape recording be-
cause the meeting had ended when the conversation took place
11 The description of Early's conversation with Bartak is based on a
composite of their testimony Armstrong testified that he also spoke to
Bartak about the tape recording in early March I have rejected this testi-
mony because Bartak, who denied that Armstrong spoke to her about
this matter, impressed me, in terms of demeanor, as a more credible wit-
ness in crediting Bartak 's testimony in this and in other instances in this
decision , I have taken into account her personal interest in this litigation
and the fact that she lied to management when she denied responsibility
for spreading the hit list rumor However, in the case of her testimony
regarding the above and other matters that I have relied on in this deci-
sion, I was impressed by the sincere and straightforward manner in
which she testified and in terms of demeanor Bartak was a very impre-
sive witness who left me with the impression that, although she felt
wronged by Early's treatment, she took her oath as a witness seriously
and testified truthfully and accurately
Tully's March 20 letter of reprimand be removed from
her personnel file
During the early part of 1979 the Arizona Republic
was in the process of putting together a 5-year plan for
its business operation and appointed a committee of per-
sons employed in the newsroom to work out this plan in-
sofar as it would relate to the newsroom. No women
were appointed to this committee and Bartak, shortly
after her February 23 meeting with Tully, wrote a note
to Early, Armstrong, and Schatt pointing out that no
women had been selected to serve on this committee and
asked if "the women in the newsroom are to interpret
that as an indication that there is no future for them at
the newspaper," and volunteered to serve on the com-
mittee Schatt, who had selected the committee, an-
swered Bartak by memo in which he characterized her
comments as "snide insinuations" and stated she was free
to submit in writing any ideas she thought the committee
should consider and explained the basis that he used to
select the committee Shortly thereafter a woman was
appointed to the committee
On August 7, 1979, Bartak filed a charge of discrimi-
nation against Respondent with the Equal Employment
Opportunity Commission and the Arizona Civil Rights
Division (the EEOC) alleging in substance that Respond-
ent was not paying wages to her comparable to the
wages it paid to similarly situated male reporters and had
promoted a male to the vacant position of assistant city
editor rather than Bartak. The charge further alleged
that the women employed by Respondent as a class were
being denied wages and promotions equal to similarly sit-
uated men and that men were being given perference in
job assignments. i 2
Previously, in about April or May, sex discrimination
charges against Respondent were filed with the EEOC
by Arizona Republic newswomen Ellie Schultz, Carol
Sowers, and Mellisa Jones These charges alleged dis-
crimination as to pay, promotion, and hiring practices by
the Respondent on behalf of each woman personally and
on behalf of the other women employed by Respondent
as a class 13
b The "Hit-List"
The decertification election was conducted on March
16 and 17 Mayne testified that on either March 13 or 14,
while City Editor Armstrong, Assistant City Editor
Schatt, and himself were talking in the newsroom they
observed Bartak using the phone and that Schatt stated
Bartak was probably doing union business and that it
would be good to have the "union matter" over so they
12 Reporter Turco testified that previously in March, Bartak told him
"this company f- me over ever since I've started They owe me some-
thing and I'm going to get them from two directions, the EEOC and the
Union " Bartak denied saying this to Turco I have credited Bartak be-
cause in terms of demeanor she impressed me as a more trustworthy wit-
ness than Turco
13 The record only shows that the above-named employees filed their
EEOC charges sometime after the February 23 meeting but does not give
the exact date or dates or the content of the charges The finding, set
forth in the text, is based on the representations set forth in Respondent's
brief at 6, which I have treated as a motion to take official notice of the
contents and dates of these charges and hereby grant the motion
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could get back to covering the news again. Everyone in-
dicated they agreed with this sentiment Then Arm-
strong, according to Mayne, stated that a number of the
employees had to be redirected in their activities and ex-
plained to Schatt and Mayne that a number of people
had to be kept from standing in the way of management
implementing certain changes in employees' terms and
conditions of employment In response to Mayne's in-
quiry as to whom he was talking about, Mayne testified
that Armstrong named several reporters. The first one he
named was Bartak and then several others. Mayne fur-
ther testified that on the same day he made a note of this
conversation. This note states that during this conversa-
tion Armstrong and Schatt "mentioned the need to
cleanse the staff of the disruptive influence of those who
prevent management from putting into effect its impor-
tant new programs" and that referring to several em-
ployees by name stated, "if they can't be for us, they are
against us and we can only go one way " I have rejected
Mayne's testimony because Armstrong and Schatt specif-
ically denied that the conversation took place and while
testifying about this particular subject they impressed
me, in terms of demeanor, as more credible witnesses
than Mayne. 14
During May, the first part, while Mayne was attending
a seminar in New York City he phoned Bartak to discuss
certain business that they had been working on prior to
his trip to New York pertaining to the Arizona Press
Club After discussing the press club business, Mayne
asked about the newspaper and was informed by Bartak
that, among other happenings, the Union the previous
week had picketed the paper and that there was a big
turnout on the picket line. Mayne cautioned her that
Bartak and the other employees who were union sup-
porters should be careful because he had learned from
Armstrong and Schatt that they were being watched by
management to determine if they were engaging in im-
proper behavior during working time and stated that
Bartak as well as several other employees whom he
named had been mentioned by Schatt and Armstrong as
those employees whose work performances were being
watched Mayne told Bartak that it was possible that the
people he named including Bartak would be discharged
if they were caught doing something inappropriate
Bartak- noted that all the persons he had mentioned ap-
peared to be union adherents. -Mayne agreed with this
observation. 15
14 I recognize that in general I have concluded that Schatt and Arm-
strong were incredible witnesses, but while testifying about this particular
conversation , in sharp contrast to their testimony given in connection
with Bartak's work performance, they spoke with conviction and, in
terms of their demeanor, impressed me as truthful witnesses
I5 The description of this conversation between Mayne and Bartak is
based on Mayne's and Bartak's testimony even though I am persuaded, as
described supra, that Mayne in this conversation attributed false state-
ments to Armstrong and Schatt I have credited Mayne's testimony that
he communicated the above-described message to Bartak because de-
meanorwise he impressed me as a sincere and reliable witness while testi-
fying about this particular conversation and because Bartak, who substan-
tially corroborated his testimony, also was an impressive witness In addi-
tion, employee Kowalec also corroborated Mayne's testimony that be-
sides Bartak he also phoned Kowalec and passed along the same or simi-
lar information
Bartak informed other employees about Mayne's com-
ments and these employees and Bartak apparently told
others This story caused concern among the employees
who were union adherents, particularly those whose
names had been listed as the ones whose work manage-
ment was watching One of the workers who learned
about Mayne's remarks to Bartak was Cecila Goodnow,
the wife of employee Jack Swanson, the Union's presi-
dent In may Goodnow advised City Editor Armstrong
and Assistant Editor Schatt that the employees in the
newsroom were very concerned about a rumor that Re-
spondent was maintaining a list of employees who were
going to be terminated because of their union activities,
that this rumor had originated from Mayne who had
given the information to Bartak, and that Goodnow un-
derstood that Mayne's source was Armstrong. Goodnow
told Armstrong and Schatt that she was worried that she
might be on the list and had been told that she was wor-
ried that she might be on the list and had been told that
her husband and employees Kowalec and Bartak were
on the list Armstrong denied there was such a list and
stated the rumor was false. He immediately notified
Managing Editor Early about the rumor and at the same
time phoned Mayne, who was still out of town attending
a seminar , and told Mayne about the rumor that had
been attributed to him and questioned him about it
Mayne specifically denied having knowledge about the
matter and denied giving such information to Bartak.
On May 29 Early summoned Armstrong, Schatt,
Goodnow, Swanson, Kowalec, Mayne, and Bartak to his
office and spoke to them about the so-called hit-list
rumor. He told them that the rumor was false and had
created divisiveness and discord in the newsroom and
distrust between management and the employees and
stated he would not tolerate such rumors. He also ques-
tioned Mayne and Bartak about their responsibility for
starting and spreading the rumor and even though each
of them in effect denied such responsibility Early indicat-
ed he did not believe them Early stated that he thought
Mayne was responsible for starting a rumor and Bartak
was responsible for spreading it He also stated that be-
cause of Mayne's responsibility for starting the rumor
that his integrity as a member of management was in
doubt because it was very difficult for management to
trust him on account of this Two days later, on May 31,
Early issued written reprimands to both Mayne and
Bartak because of their responsibility for starting and
spreading the so-called hit-list rumor and placed these
reprimands in their personnel files. Bartak refused to ac-
knowledge the receipt of her reprimand by signing it.
c Bartak's May 18 performance evaluation and the
events leading up to her October 5 evaluation
Since the Union's certification in 1978 Respondent had
frozen the wages of the employees who were represent-
ed by the Union because their wages were the subject of
collective bargaining. On April 23 Respondent and the
Union bargained to impasse and Respondent implement-
ed its last bargaining proposal that included an increase
in employee wages. At this time all union-represented
employees had their wages increased so that they would
PHOENIX NEWSPAPERS 57
be earning the minimum wage contained in Respondent's
contract proposal. Bartak's weekly wage was raised from
$270 to $325, which equaled the minimum salary for a
reporter of her tenure
Also, as a part of the contract proposal placed into
effect on April 23, Respondent instituted an evaluation
system for the union-represented employees. t 6 In the
first month following its implementation the supervisory
staff of the Arizona Republic evaluated the employees
represented by the Union who worked under their super-
vision This was the first time ever that a systematic
work performance evaluation was conducted by manage-
ment among these employees, so it was new to the su-
pervisors. However, it is undisputed that prior to institut-
ing the several performance factors that were to be eval-
uated and the standards for evaluating them that manage-
ment held supervisory meetings at which the supervisors,
including Schatt and Armstrong, discussed the perform-
ance factors that were to be evaluated and the standards
to be used in evaluating them so that management was
sure that all employees would be evaluated the same
way. (Tr 1034-1035 )
On May 18 Bartak was evaluated by City Editor Arm-
strong and Assistant City Editor Schatt Prior to this
meeting Armstrong and Schatt discussed Bartak's work
performance and then based on his own and Schatt's ap-
praisal of Bartak's work, Armstrong filled out the stand-
ard performance appraisal form used by the supervisors
to evaluate employees Armstrong rated Bartak "above-
average" for the following performance factors: "Deci-
sion-Making Ability (consider ability to think intelligent-
ly & make logical decisions )", " Initiative (consider tend-
ency to contribute, develop and/or carry out new ideas
or methods)", "Quantity of Work (consider the volume
of work produced)", and "Quality of Work (consider the
extent to which standards are met)." Armstrong rated
her as "average" for the following performance factors-
"Technical Knowledge & Ability (consider job knowl-
edge & ability to learn)", "Carries out assignments"; "At-
tendance & Punctuality", "Degree of Cooperation", and
"Personal Appearance as it relates to the Job " These
performance factors constitute all the factors listed on
the performance appraisal form In the space on the form
entitled "Overall Evaluation-Comments," Armstrong
wrote as follows
Bonnie is a hard worker who frequently works
more hours than expected and who uses many
hours of her personal time gathering information to
apply in her work. She has above average knowl-
edge of the political and behind the scenes working
on beats she has worked. She has a good knowl-
edge of government procedures. She is tireless in
pursuit of a good story. Her writing, while accurate
and complete, lacks flair Her most serious liability
is her inability to either understand the importance
of making deadline or, if understood, to report and
write in time for deadline. I feel one of the reasons
16 Previously in 1978 this evaluation system had been placed into effect
in the departments that were not represented by the Union or by other
unions
for this inability is that she has the difficult task of
covering a large and complex beat alone at the
present time Another reason is her habit of appar-
ently putting off writing while talking and frequent-
ly interrupting her writing to talk to others
During the May 18 evaluation interview Schatt spoke
only once when he apologized for giving Bartak an aver-
age rating on her appearance, explaining to her that the
supervisors had been instructed to rate no one higher
than average for this performance factor Armstrong,
who conducted the interview, initially either showed
Bartak what he had written on,the appraisal form, as de-
scribed above, or read to her what he had written on the
form
Bartak testified that during the interview Armstrong
asked how she would feel about working as an assistant
city editor, which would be a promotion, and that
Bartak replied she might be interested and would consid-
er the matter On the subject of wages Bartak testified
that Armstrong did not state what, if any, raise in pay
she would receive as the result of her evaluation but that
when Bartak stated she thought she deserved an increase
of $75 a week from $325 to $400 that Armstrong replied
he would have to talk to Early about the amount of her
payraise because payraises were set by Early. Finally
Bartak testified that when Armstrong's comments about
her failure to meet deadlines were read from the evalua-
tion or shown to her she objected indicating that she dis-
agreed with Armstrong's assessment of her work in this
respect and that Armstrong in response to her objection
wrote some additional comments on the evaluation In
this respect it is undisputed that during the May 18 inter-
view Armstrong wrote the following addendum to his
previous comments: "(Following remarks added May 18,
1979) Since this appraisal first was written three weeks
ago, Bonnie has made noticeable improvement in making
deadline and I believe there will be further improvement
in future."
Armstrong testified that during the May 18 evaluation
interview he criticized Bartak at length about her failure
to meet deadlines and for talking with other reporters
and that both himself and Schatt criticized her coverage
of the city hall beat and, in this respect, told her that
they thought her coverage was not broad enough and
they wanted her to report about the several city depart-
ments not just about the city council. Armstrong also
testified that he told Bartak he was going to raise her
pay $35 a week from $325 to $360, that Bartak indicated
she was not satisfied with the amount of the payraise,
and that Armstrong told her if she was dissatisfied with
the appraisal or the amount of the payraise that her eval-
uation would be appealed to Early Armstrong specifical-
ly denied saying anything to Bartak about the position of
assistant city editor.
Bartak specifically denied that Armstrong criticized
her for missing deadlines or for talking to other reporters
other than what was stated in the written evaluation
form and specifically denied that Armstrong or Schatt
talked to her about her coverage of city hall or men-
tioned that if she was dissatisfied with her appraisal or
payraise it would be appealed to Early
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Schatt, who testified for Respondent, testified he made
no comments during Bartak's evaluation interview, thus
contradicting Armstrong's testimony that Schatt spoke to
Bartak about her coverage of the city hall beat nor did
he corroborate any of Armstrong's testimony about what
was stated at this meeting other than Armstrong's denial
of having spoken to Bartak about the position of assistant
city editor Also Schatt's testimony that the practice re-
garding employees payraises is for Early to approve the
payraises only after Early was shown the completed
evaluation form supports Bartak's testimony that Arm-
strong did not tell her what her payraise would be but
instead told her he would have to consult with Early
about the matter It is undisputed that Early did not see
Bartak's evaluation until after the evaluation interview
I reject the testimony of Armstrong and Schaff con-
cerning the May 18 evaluation interview insofar as it
conflicts with Bartak's testimony because in terms of de-
meanor Bartak impressed me as a more credible witness.,
Late in May Armstrong informed Bartak that he had
spoken to Early about her payraise and that they had de-
cided to raise it from $325 to $360 a week Bartak indi-
cated she was not satisfied with this amount and felt that
she was entitled to be paid $400 a week because this was
what several of the male reporters had told her they
were earning Bartak asked to speak to Early about her
payraise Armstrong requested that Bartak not speak to
Early but to permit Armstrong to handle the matter.
Bartak agreed Thereafter, early in June Armstrong in-
formed Bartak that Early was not going to change her
salary from $360 and that Early had told him that his
evaluation of Bartak's work had not been tough enough.
Armstrong at this time also told Bartak that there were
other employees besides Bartak, who were not satisfied
with the amount of their payraise and what they were
doing with those other employees was to evaluate their
work sooner than usual in order to give them their next
payraise sooner than usual Bartak asked if they could do
this in her case and Armstrong answered in the affirma-
tive 17
On August 19 Bartak by memo reminded Armstrong
that according to their agreement she was supposed to
have another appraisal and asked that it be scheduled for
the last week of that month When Armstrong did not
do this Bartak on September 7 personally spoke to him
and asked whether he had discussed the matter of her ac-
celerated evaluation with Early Armstrong indicated
that Bartak could be evaluated if she wanted but that
Early had said he would not grant her an additional
payraise Bartak reminded Armstrong that he had prom-
ised her another evaluation and stated she was holding
him to that promise Armstrong agreed to schedule an-
other evaluation. When such an evaluation was not
scheduled Bartak then spoke to Nilsson, her immediate
supervisor, about the evaluation, who in turn talked with
Armstrong, which resulted in Nilsson and Armstrong
agreeing to give Bartak another evaluation the first week
in October That week Bartak asked Nilsson what day
11 The record establishes that supervisors did not request accelerated
evaluations for employees who they did not think warranted an additional
payraise (Tr 1234-1235 )
they were going to meet for her evaluation Nilsson
stated he would check with Armstrong Later that week
Nilsson advised Bartak that Early had asked to talk to
him about Bartak's evaluation On October 4 Armstrong
for the first time informed Bartak that Early had decided
he would conduct Bartak's evaluation as an appeal and
that neither Armstrong nor Nilsson would participate in
evaluating her work t8
On October 5, shortly before meeting with Bartak to
evaluate her work performance, Early discussed Bartak's
work with her immediate supervisor, Assistant City
Editor Joel Nilsson, who had been Bartak's supervisor
since May 1979 19 Early called Nilsson to his office and
asked .him what he thought of Bartak's work perform-
ance Nilsson stated he thought Bartak was a good re-
porter, that although occasionally she missed deadlines
he felt that on the whole she had performed capably
under his supervision and had done everything he had
asked Early disagreed with Nilsson's evaluation and, in
substance, criticized Bartak's performance as follows
She had been badly beaten on a story by the Respond-
ent's afternoon newspaper while on the city hall beat, as
urban affairs reporter she did not produce enough stories
because her coverage was too narrow and she did not
get into the bureaus enough thus did not produce enough
daily stories, her writing was poor particularly her lead
paragraphs; her stories contained numerous omissions
that tended to make them slanted and biased; she talked
too much to other reporters during working time thus
interfering with her own and the work of others, and she
did not meet deadlines Nilsson told Early that he dis-
agreed with his evaluation of Bartak's work perform-
ance In answer to Early's criticism that Bartak was not
producing enough daily stories because her coverage of
the urban affairs beat was too narrow, Nilsson told Early
that Bartak in this respect had been only following Nils-
son's instructions to concentrate on in-depth coverage
rather than daily copy and that Early's criticism in this
respect should be directed toward him, not Bartak 20 In
connection with the disagreement between himself and
Nilsson about Bartak's work performance, Early testified
that because of Nilsson's limited experience as a supervi-
sor Nilsson was not as qualified as Early to evaluate Bar-
tak's work, even though Nilsson had continuous contact
with her work whereas Early had only limited contact
There is no contention or evidence that Early disagreed
with Nilsson's evaluations of the work of anyone other
than Bartak, even though Nilsson submitted for Early's
18 The description of Bartak's conversations with Armstrong and Nils-
son between May 18 and October 5 about her payraise and evaluation is
based on Bartak's testimony Armstrong's sole testimony pertaining to
those conversations is that after Early rejected Bartak's request for more
money Armstrong communicated this information to Bartak, informed
her that Early disagreed with Armstrong's May 18 evaluation and that
Early would talk to her in the "appeal process" about the matter at a
later date t have rejected Armstrong's testimony because in terms of de-
meanor Bartak impressed me as the more credible witness
19 The description of Nilsson's conversation with Early is based on a
composite of their testimony
20 As described infra, Nilsson when he told Bartak about her urban af-
fairs assignment directed her to produce in-depth stories and to write
about issues rather than produce copy about daily events
PHOENIX NEWSPAPERS
signature written performance evaluations of several re-
porters who worked under his supervision
d Respondent's repudiation of Bartak's May 18
performance evaluation
At the time of her May 18 performance evaluation
Bartak had been working the city hall beat since about
the spring of 1977 and continued to work this beat until
June 1979 when she was assigned to the urban affairs
beat The city hall beat is one of the most important
beats for the paper and is a large complex beat When
Bartak was first assigned to this beat she was only one of
three full-time reporters assigned to it, but by the first of
1978 was left to cover it by herself.
As described supra, Bartak's May 18 performance
evaluation indicated that management appreciated her
work performance and was of the opinion that overall
she was a good worker who warranted a merit payraise
of $35 a week 2 i The quantity and quality of her work,
her decision-making ability and initiative were all rated
above average and in all other respects her work per-
formance was rated average The only criticisms either
expressed to Bartak during the evaluation interview or
noted on the evaluation form was that Bartak's supervi-
sors felt her inability to report and write in time for
deadline was created by her habit of putting off writing
while talking to other reporters. However, the evaluation
also noted that one of the reasons for Bartak's failure to
meet deadline was excusable in that "she had the difficult
task of covering a large and complex beat alone at the
present time" and also remarked that during the 3-week
period immediately prior to the evaluation interview
Bartak "has made noticeable improvement in making
deadlines " The evaluation form indicated that Bartak's
work had been appraised by both her immediate supervi-
sor, Assistant City Editor Schatt, and Schatt's boss, City
Editor Armstrong
During the hearing in the instant case Schatt and Arm-
strong repudiated their May 18 evaluation of Bartak's
work and in effect testified that the evaluation over-
praised Bartak's performance and was not an accurate
evaluation of her performance Likewise, Managing
Editor Early testified that the May 18 evaluation was
"badly done" and wrong and that in fact Bartak's work
performance during the period covered by the evaluation
was "terrible " In presenting this testimony Schatt, Arm-
strong, and Early, in terms of their demeanor, seemed to
be insincere witnesses who were attempting to support
Respondent's case even though it meant disregarding the
truth by exaggeration or outright fabrication In addition,
their reasons for repudiating the May 18 evaluation,
when viewed in terms of the whole record, including the
testimony of Bartak who in terms of demeanor impressed
me as an honest witness, bolster the conclusion that their
testimony was a fabrication
In an apparent effort to disassociate himself from the
May 18 evaluation, Schatt testified that he was not con-
sulted by Armstrong in the preparation of this evaluation
and only observed it after it was prepared and thought it
21 The record reveals that during this period Respondent granted merit
payraises only to those reporters who it felt merited such a raise
59
was an "over praising evaluation " That Schatt, who was
Bartak's immediate supervisor, would not have been con-
sulted by Armstrong, who had only limited contact with
Bartak, is inherently implausible It is not surprising that
Armstrong contradicted Schatt and testified that prior to
completing the May 18 evaluation form and in prepara-
tion for the completion of the form that he consulted
with Schatt about Bartak's work performance Arm-
strong further testified that Schatt viewed Bartak's work
performance in the same light as Armstrong and that
Armstrong completed the evaluation form only after
consulting with Schatt
In addition to Bartak's failure to report and write on
time for deadline and her habit of postponing her work
by talking to other reporters, Schatt's only other criti-
cism of Bartak's work performance was her failure to
check into the city desk during the day so that the edi-
tors on the desk, including Schatt, would know her
whereabouts and Bartak's narrow coverage of the city
hall beat Regarding the former, Schatt's testimony is not
corroborated by anyone else No mention of this alleged
failing was expressed to Bartak during the evaluation
interview or in the evaluation report Plainly, at the time
of Bartak's evaluation Schatt did not consider this to be
a significant matter. Regarding the latter Schatt testified
that he reprimanded Bartak several times during the
latter part of 1978 and early 1979 about the narrowness
of her city hall coverage and that Bartak continually re-
plied to him that she did not have enough time to
expand her coverage Schatt further testified that once
early in 1979 when he told Bartak she would have to
stop ignoring the planning and zoning departments and
start covering their activities that Bartak refused to obey
his instructions and did not cover these departments De-
spite this alleged blatant act of insubordination there is
no evidence that Schatt disciplined, let alone reprimand-
ed, Bartak Nor was there any mention in Bartak's May
18 evaluation about Bartak's narrow coverage of city
hall and, as I have found supra, the matter was not men-
tioned to Bartak during the interview itself Under the
circumstances I am of the opinion that Schatt's testimony
that he criticized Bartak about her narrow coverage was
a fabrication Moreover, Bartak credibly testified that
Schatt never spoke to her about this subject Quite the
opposite, Bartak's undenied testimony is that in the
spring of 1979 Schatt told her "she was the best city hall
reporter that they had since he [Schatt] covered the
beat "
Armstrong testified that the reason he gave Bartak
such a good evaluation was that it was one of the first
ones that he had done and had only a few guidelines to
go by, that he felt Bartak had the potential to be a very
good reporter, and that he thought that a good evalua-
tion would make her respond in a positive way 22 An ex-
22 In view of the fact that prior to instituting the evaluation procedure
management conducted several supervisory meetings attended by Arm-
strong where the several performance factors and the standards to be
used in evaluating an employee for each factor were discussed and debat-
ed, Armstrong's attempt to repudiate his evaluation of Bartak on the
ground that he did not know what he was doing is unconvincing, espe-
cially because Armstrong was not a low-echelon supervisor but a high-
Continued
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amination of Armstrong's testimony reveals that his only
criticism of Bartak's work performance during the period
she was assigned to the city hall beat, other than the
criticisms expressed in the evaluation form, was the fact
that Bartak's coverage of city hall was too narrow In
this regard Armstrong testified that during the 12-month
period prior to May 1979 he verbally reprimanded
Bartak three or four times for her narrow coverage.
Armstrong failed to explain why such a serious failing of
Bartak's narrow coverage was not listed as one of Bar-
tak's failings in Bartak's performance evaluation prepared
by Armstrong. Also, as found supra, Armstrong did not
mention this matter to Bartak during Bartak's May 18
evaluation interview. In addition, Bartak credibly testi-
fied that Armstrong never spoke to her critically about
her coverage of the city hall beat Under these circum-
stances, I am of the opinion that Armstrong's testimony
that he had reprimanded Bartak for her narrow coverage
was a fabrication
Managing Editor Early testified that Bartak's work as
a reporter kept improving each year from the date she
began work for Respondent in March 1973, until she was
assigned to the city hall beat early in 1977 when Early
testified that Bartak's work performance hit a "plateau"
and her improvement stopped He further testified that
as of May 18, the date of Bartak's evaluation, "my opin-
ion of her work was that it was terrible, that it was sub-
stantially below what it ought to be," and that Bartak
had "a lot" of deficiencies in her work performance.
Nevertheless, even though he felt the May 18 evaluation
submitted by Armstrong and Schatt was wrong, Early
testified that because it had already been shown to
Bartak prior to his seeing it that he could not counter-
mand it because he had to stand behind his supervisors
In terms of his demeanor Early, as I have already indi-
cated above, when testifying about Bartak's work per-
formance did not impress me as a credible witness and,
under the circumstances, I feel I must view his testimony
about Bartak's work performance with skepticism That
this skepticism is justified is bolstered by a close scrutiny
of the reasons Early advanced to support his testimony
that in addition to the criticism expressed in Bartak's
May 18 evaluation that Bartak's work was deficient in
these respects: her writing was poor, her coverage of the
city hall beat was narrow, and the Respondent's after-
noon paper, the Phoenix Gazette, had beaten the Repub-
lic on three stories that Bartak should have gotten ahead
of the Gazett's reporter.
On the subject of Bartak's writing deficiencies, Early
testified Bartak "always had a writing problem," that she
was "never a very good writer" and further testified
"there were times she could write adequately and with
some editing help, you could get her in the paper okay "
In short, Early would have me believe that for 2 years
Respondent permitted a reporter, who was an unsatisfac-
tory writer, to handle one of its most prestigious and im-
portant beats. His testimony is not corroborated by
ranking member of management As a matter of fact, Armstrong's later
testimony that he knowlingly gave Bartak too good an evaluation in
order to give her an incentive to improve her work performance is incon-
sistent with his testimony that he was ignorant of the proper guideline
used to rate an employee
Schatt or Armstrong.23 Moreover, there is no evidence
that Early, during the time Bartak worked as city hall re-
porter, communicated his dissatisfaction with Bartak's
writing ability to her immediate Supervisor Schatt or to
Schatt's boss Armstrong.
Regarding Early's testimony that Bartak's coverage
was too narrow he testified that he spoke to her in 1977,
shortly after she had been assigned to the city hall beat,
about broadening her coverage but that Bartak ignored
his remarks and continued to limit her coverage to the
city council, the city manager, the budget, and the poli-
tics of city hall and ignored all the city's bureaus. In
view of this, Early testified that in late 1977 he again
spoke to Bartak and told her to expand her coverage
into the parks department and other departments but that
Bartak still continued to disregard his instructions at
which point in 1978, Early testified, he complained to
Armstrong and Schatt about the narrowness of Bartak's
coverage and kept complaining to them periodically
from the spring of 1978 continuously until Bartak, in
June 1979, was reassigned to the urban affairs beat In
short, Early would have me believe that Bartak from the
beginning of her employment on the city hall beat ig-
nored Early's specific instructions that she broaden her
coverage of the beat and that Early ignored this act of
insubordination without any disciplinary action He
would further have me believe that despite the fact that
he had made it abundantly clear to Schatt and Arm-
strong that he viewed Bartak 's failure to broaden her
coverage as an important matter that Schatt and Arm-
strong would neglect to mention this in Bartak 's May 18
evaluation report In short, under the circumstances I be-
lieve Early's testimony that he viewed Bartak's narrow
coverage as a serious matter or that he spoke to Bartak
about the matter is a fabrication. As a matter of fact,
Bartak credibly testified that Early never spoke to her
aobut this matter.
Lastly, Early's testimony that Bartak, prior to her May
18 evaluation had been "scooped" by the afternoon
paper, the Phoenix Gazette, on three different stories is
plainly an afterthought because neither Schatt nor Arm-
strong, when questioned about Bartak's work perform-
ance while on the city hall beat, was critical of Bartak in
this respect and there is no evidence that Early had ever
expressed dissatisfaction about Bartak's work in this re-
spect to either Bartak, Armstrong, or Schatt.
Based on the foregoing, I am of the opinion that as of
Bartak's May 18 work performance evaluation that Re-
spondent, including Early, Armstrong, and Schatt were
in general not dissatisfied with Bartak's work perform-
ance and that the May 18 evaluation was an accurate ap-
praisal of Bartak's work performance In other words,
Respondent was well satisfied with Bartak's work per-
formance as a reporter even though Bartak frequently
23 Neither Armstrong nor Schatt when questioned about Bartak's fail-
ings as a reporter while employed on the city hall beat criticized her
writing ability In his May 18 evaluation of Bartak's work Armstrong
stated that her writing was "accurate and complete " I realize that Arm-
strong also stated that her writing lacked "flair," however, this is hardly
comparable to Early's testimony wherein he inferred that only at times
could Bartak write "adequately" and with the help of editing get her sto-
ries into the paper
PHOENIX NEWSPAPERS 61
had difficulty writing copy in time for deadline, fre-
quently talked to other reporters during working time
rather than attending to business, often failed to notify
the city desk of her whereabouts, and in her coverage of
the city hall did not cover the several city bureaus This
conclusion is not only warranted by Bartak's May 18
evaluation and merit pay raise but is bolstered by the fact
that Managing Editor Early in about June 1978 informed
Night Editor Kowalec that Bartak was a "damn good re-
porter" and during this same period in a management
meeting Early indicated that Bartak had the ability to be
considered for an assistant editor's position 24 Also As-
sistant City Editor Schatt in the spring of 1979 told
Bartak she was "the best city hall reporter that they had
since he covered the beat " Likewise, Managing Editor
Armstrong complimented Bartak's work performance
On March 30 Armstrong wrote a memo to Bartak in
which, while indicating that she could meet her deadline
by writing her copy early in the day rather than talking
with other reporters, he informed Bartak that "I want to
again say that you and your talent and dedication are ap-
preciated and that the [city] desk is aware of your strong
points " And as late as June 18 when Early was remov-
ing Bartak from the city hall beat and transferring her to
the urban affairs beat supposedly due to Bartak's unsatis=
factory work performance-a contention I have rejected
infra-Associate Publisher and General Manager Tully
was writing to Bartak, "congratulations on a fine story, it
is a tribute to good journalism to carry off a story of that
magnitude and length and maintain reader interest
throughout Keep up the good work."
e Bartak is reassigned to the urban affairs beat
Respondent 's urban affairs beat reporter covers the
Central Arizona Systems Agency and the Maricopa As-
sociation of Governments and specializes in news con-
cerning Phoenix's surrounding urban area In May or
June the urban affairs reporter Jack Swanson was pro-
moted to the position of assistant city editor which left
his position vacant
It is undisputed that the urban affairs beat is regarded
by reporters as a some what more prestigious beat than
most of the paper's other beats, including the city hall
beat, because unlike most other beats , including city hall,
the urban affairs reporter also has the title "urban affairs
writer" besides the usual byline.
Late in June Assistant City Editor Nilsson, who in
May had become Bartak ' s immediate supervisor, in-
formed her that he and City Editor Armstrong had de-
cided to transfer her to the urban affairs beat to fill
Swanson's vacancy and that they had done this because,
after reviewing the staff,, they felt Bartak was the only
person qualified to fill the vacancy Nilsson explained to
Bartak the way in which he expected her to cover this
beat Specifically , he told her that she should concentrate
on producing in-depth stories and write about the issues
as opposed to doing daily coverage of breaking stories
such as meetings Nilsson explained he felt that the job of
urban affairs writer was to explore the issues Nilsson
also advised her that as part of her duties as urban affairs
24 Based on the undenied and credible testimony of Kowalec
writer she would be covering the upcoming Papago
Freeway Election that the record reveals was a contro-
versial issue involving the public's support or nonsupport
of a bond issue to build a freeway.
Early testified he made the decision to remove Bartak
from the city hall beat because:
I tried to convince her to cover the [city hall beat]
the way I wanted it covered . . . I tried and the su-
pervisors on the city desk, they tried to get her to
cover the beat the way we wanted it covered .
So, at that point [referring to the time Bartak was
transferred to the urban affairs beat], I just could
not take it any more, and I said, you know, our
readers deserve better than this, get her off [the city
hall beat] and I ordered her off the city hall beat
As I have found supra, Early's testimony that Bartak's
work performance on the city hall beat was unsatisfac-
tory and that he viewed her work with dissatisfaction is
incredible Accordingly, I reject his testimony that he re-
moved Bartak from the city hall beat for this reason.25
Rather, I find Bartak was transferred from the city hall
to the urban affairs beat because of a vacancy there and,
after reviewing its staff, management concluded Bartak
was the only person qualified to fill the vacancy This is
the reason given Bartak by her supervisor when he in-
formed her about the transfer and at no time did supervi-
sion ever inform Bartak that she had been reassigned be-
cause Respondent was dissatisfied with her work as city
hall beat reporter Moreover, the urban affairs beat is a
somewhat more prestigious beat than the city hall beat
and its last occupant had been promoted to the position
of assistant city editor I do not believe that if Bartak's
reassignment had been caused by Early's dissatisfaction
with her work performance on the city hall beat she
would not have been told that this was the reason. Nor
do I believe she would have been rewarded with a more
prestigious beat if Early had viewed her work perform-
ance on the city hall beat with such dissatisfaction
f Schatt's August 27 reprimand of Bartak
On August 27 the personnel on the city desk needed to
reach Bartak in order to ask her some questions about a
potential story and were unable to locate. her because she
did not tell anyone where she could be reached Assist-
ant City Editor Schatt reprimanded her in writing for
this conduct. In her approximately 6-1/2 years with Re-
spondent this was the first written reprimand issued
Bartak concerning her work performance 26 Schatt testi-
25 In concluding that Respondent did not reassign Bartak because it
was dissatisfied with her work as city hall beat reporter, I have consid-
ered the testimony of reporter Turco, a witness for Respbndent who re-
placed Bartak as city hall reporter, who in effect testified that he was
informed by Early, Armstrong, and Schatt that they were not happy
aobut Bartak's work on that beat and wanted him to improve on it Nei-
ther Early nor Armstrong nor Schatt testified about these alleged conver-
sations with Turco and inasmuch as Turco, in terms of demeanor did not
impress me as a credible or reliable witness, I have rejected his testimo-
ny
zs The only written reprimand previously issued Bartak was Early's
June 12, 1978 memo to Bartak explaining the Company's rule regarding
the manner in which employees were to enter their overtime on time-
cards and directing Bartak to follow this procedure
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
feed his reason for issuing the reprimand was that super-
vision was under pressure from General Manager Tully
when he came to work for Respondent to do things cor-
rectly and that Bartak was under probation at that time
and the conduct she had engaged in was serious so he
wanted to impress her with the fact that it was serious.
The record reveals that Tully had become general man-
ager more than 12 months previously and that Bartak
was not placed on probation until October.27
e Early's decision to personally conduct Bartak'c
October 5 evaluation
Early, who signed Bartak's May 18 written evaluation
on May 18, testified that contrary to company policy he
did not see the appraisal until after it had been shown to
Bartak and in view of this he did not change the evalua-
tion even though he disagreed with it Early further tes-
tified that about 2 weeks after the May 18 evaluation
Bartak was notified by Armstrong about her merit pay
raise at which time Armstrong told Early that Bartak
was not satisfied with the amount of the raise and
wanted more money Early further testified that because
he had disagreed with Armstrong's evaluation, he would
not agree to give her more money and told this to Arm-
strong Armstrong informed Early that he, Armstrong,
did not agree with Early's view of Bartak's work per-
formance Thereafter, as I have described supra, Arm-
strong, in order to get Bartak a pay raise sooner than
usual suggested that instead of waiting until her anniver-
sary date to be evaluated for a pay raise that Bartak be
evaluated earlier Bartak agreed In August and Septem-
ber Bartak reminded Armstrong that he had promised to
reevaluate her in connection with her request for more
money At this point, late in September, Armstrong
agreed to reevaluate Bartak and spoke to Early about
this Specifically, as Early testified, Armstrong told him
that Bartak still was not satisfied with her last pay raise
whereupon Early replied, "if that is the way it is going
to be, I will call up a sheet [referring to a work perform-
ance appraisal form used to evaluate employees] and I
will treat that as an appeal from her last review and I
will handle it."28 Bartak at no time prior to October 4
was ever told that Early would be evaluating her and it
is clear from the record that the conversation she had
with Supervisors Nilsson and Armstrong about her eval-
uation were calculated to give her the impression that
27 In the reprimand of August 27 Schatt also stated to Bartak, "I
meant to talk sternly to you this afternoon about wasting the day talking
to people in the news room-but you disappeared before I could " Schatt
did not testify about the basis for this assertion Bartak credibly testified
that other than in her May 18 written evaluation she had not been repri-
manded by supervision previously either in writing or verbally for engag-
ing in this type of conduct
28 I reject Armstrong's testimony, which was inconsistent with Early's,
that Armstrong notified Bartak about the amount of her pay raise at the
May 18 evaluation interview and that it was a few days after the May 18
interview that Armstrong informed Early that Bartak was dissatisfied
with her pay raise at which time Early stated he would consider Bartak's
request for more money as an appeal Rather, I find that it was not until
at least 2 weeks after May 18 that Armstrong indicated to Early that
Bartak was dissatisfied with her pay raise and that it was not for several
months later or as Early testified, until late September, that Early, for the
first time indicated that he intended to treat Bartak's dissatisfaction as an
appeal
either Nilsson or Armstrong or both would be the per-
sons conducting-her October 5 evaluation
Early, the managing editor of the Arizona Republic, is
responsible for the overall operation of the newsroom
The paper is one of the larger metropolitan daily news-
papers in the country, so Early does not have time to
personally supervise the newsroom employees and leaves
this task to his subordinates, except in the case of a few
investigative reporters who report directly to him Other
than in the case of these investigative reporters, Early
does not participate in employees' evaluation interviews
nor does he fill out the appraisal forms used to evaluate
employees These tasks are left for the employees' imme-
diate supervisor or the city editor or both Since the start
of the evaluation program in the newsroom in May 1979
until Early's testimony in this case on February 26, 1981,
the only employee, excluding the investigative reporters
whom he personally supervised, that Early personally
evaluated was Bartak. During this period of almost 2
years other employees in the newsroom besides Bartak
were dissatisfied with the amount of their merit pay
raises and had expressed this dissatisfaction to manage-
ment and like Bartak had been given an accelerated per-
formance evaluation, but unlike Bartak each one of these
evaluations was conducted by the employee's supervisor,
rather than Early. In this regard the record establishes
that if a pay raise granted as the result of an employee's
annual evaluation was not satisfactory to the employee,
that if the employee's supervisor agreed that the employ-
ee deserved more money the supervisor could evaluate
the employee earlier than usual rather than force the em-
ployee to wait until the next regularly scheduled evalua-
tion for another pay raise. -
Early testified that Bartak's work performance on Oc-
tober 5 was evaluated by himself rather than her supervi-
sors because he did not agree with their evaluation of
Bartak's work and testified that in all the other cases of
accelerated evaluations involving employees who were
not satisfied with their pay raises he had agreed with the
supervisors' initial evaluation Of course, this testimony is
self-serving in the sense that its bona fides cannot be
tested by objective- evidence other than evidence that in
those cases where employees were granted an acceler-
ated evaluation due to their dissatisfaction about the
amount of their merit raise that Early had not disagreed
with the supervisors' initial evaluation of the employees'
work No supervisor corroborated Early's testimony in
this respect and contrary to Early's testimony Managing
Editor Armstrong's testimony indicates that employee
Collier who, like Bartak, was dissatisfied with the merit
raise he got after his first evaluation, received an acceler-
ated evaluation from his immediate supervisor, not by
Early, even though Early felt that Collier did not de-
serve the increase But, more significant in assessing the
trustworthiness of Early's testimony explaining his
reason for personally evaluating Bartak's work perform-
ance is the fact that Early, in terms of his demeanor, did
not impress me as a credible witness. Also, I am persuad-
ed that, if Early had a policy of treating the dissatisfac-
tion about a wage increase expressed by an employee in
Bartak's circumstances as an appeal which Early handled
PHOENIX NEWSPAPERS 63
by personally appraising the employee's work perform-
ance, Early would have informed Bartak that he person-
ally would be evaluating her work, rather than her su-
pervisors. Bartak was not advised until the day before
her evaluation that it would be Early, rather than Arm-
strong or Nilsson who would be evaluating her work
Early's justification for his failure to notify Bartak that
he was personally going to evaluate her work is appar-
ently based on his testimony that he felt that he could
not inform Bartak that he disagreed with her supervisor's
May 18 evaluation because this would tend to undermine
the authority of the supervisors in the eyes of the em-
ployees, which is bad personnel policy What Early actu-
ally did in this case elies his concern about how it might
look to the employees if he overruled his supervisors on
personnel matters Thus, less than 5 months after Super-
visors Schatt and Armstrong rated Bartak as a better
than average worker who deserved a merit pay raise,
Early rated her as a worker whose work performance
was so bad she was placed by him on probation, even
though the alleged misconduct that he based his evalua-
tion on existed during the period prior to Bartak's eval-
uation by Schatt and Armstrong Plainly, Early's action
demonstrated to employees that he felt Armstrong and
Schatt had been grossly mistaken in their assessment of
Bartak's work and that Early was overruling their eval-
uation
Based on the foregoing, I find that in personally evalu-
ating Bartak's work performance on October 5 that
Early deviated from the Respondent's normal policy and
that his explanation for doing this was false
h Bartak's October 5 evaluation
On October 5, after talking with Bartak's supervisor,
Nilsson, about Bartak's work, as described supra, Early
summoned Bartak to his office and in the presence of
City Editor Armstrong gave Bartak an appraisal of her
work Previously, Early filled out the standard appraisal
form used by supervision to evaluate employees and sup-
plemented this form with three pages of single-spaced
typewritten material that was an elaboration of his rat-
ings and comments set out on the form itself. He also at-
tached three stories written by Bartak that he criticized
in the written evaluation
Early rated Bartak as "average" in the following per-
formance factors "Initiative", "Decision Making Abili-
ty"; "Carries Out Assignments"; "Attendance and Punc-
tuality", and "Personnel Appearance as it relates to the
Job " He rated her as "marginal" with respect to "Tech-
nical Knowledge & Ability", "Quantity of Work", and
"Quality of Work." He rated her as "unsatisfactory"
with respect to "Degree of Cooperation " In the space
on the evaluation form provided for "overall evaluation
and comments" Early wrote, "see attached [referring to
the sheets which he had attached]-needs to improve re-
porting techniques as outlined, needs to increase quanti-
ty, needs to improve lead writing; needs to improve
speed, needs to meet deadlines constantly, needs to be
more cooperative "
Regarding Bartak's "Technical Knowledge and Abili-
ty," Early wrote that the marginal rating was "primarily
from your failure to grasp the nuts and bolts of beat
work by reporting from the bureaus" and then went on
to explain that while covering the city hall beat Bartak's
coverage was too narrow, that her coverage on the
urban affairs beat was also too narrow, and that the nar-
rowness of her city hall coverage had resulted in the
newspaper being "scooped" by the Phoenix Gazette on
stories that dealt with the city budget and a sewer treat-
ment plant
Regarding Bartak's "Initiative," Early wrote that her
initiative was very good but only in those areas where
she had a special interest and that due to the narrowness
of her coverage while assigned to the city hall and urban
affairs beats her coverage in bureau reporting work was
very poor
Regarding Bartak's "Decision Making Ability," Early
wrote that Bartak's "judgment on stories" was the main
consideration in judging this factor and that he rated her
on the low end of the "average" scale because she
tended to cover a very narrow scope in whatever area
she worked in and as example of this stated, "your urban
affairs coverage of late has been almost entirely limited
to the freeway issue At city hall you rarely reported a
story outside the realm of the actions of the city coun-
cil."
Regarding Bartak's "Quantity of Work," Early wrote
she was on the low end of the "marginal" scale, close to
"unsatisfactory," because Bartak's "file for September
shows [she] had 12 by-line stories in September [and] of
those only 6 were enterprise stories, 4 were events cov-
ered, 1 was an advance and 1 was a routine follow
story " Early wrote that a beat reporter such as Bartak
should be writing at least 20 and closer to 25 byline
pieces a month and commented, "you have never been a
big quantity producer so I think the September file accu-
rately reflects your work output."
Regarding Bartak's "Quality of Work" that Early had
rated "marginal," Early wrote that her writing was
"weak," particularly the leads in her stories Early used
the copies of the three stories that he had attached to the
evaluation as illustrations of her unsatisfactory writing
In addition, Early wrote Bartak was "a very slow writer,
far too slow for a journeyman reporter" and that he had
watched her work for "a number of years" and she did
not compose any quicker now than she had done in the
beginning of her employment
Regarding the performance factor entitled "Carries
Out Assignments," Early wrote that Bartak was at the
low end of the "average" scale because, "you do not
seem to accomplish fully what you are assigned" and ex-
plained that they had to put a number of persons on the
Papago Freeway Election story to supplement her cov-
erage In addition, Early wrote that the narrow coverage
of the beats she was assigned reflected the rating given
her in this category
Regarding Bartak's "Degree of Cooperation" in which
Early rated Bartak as "unsatisfactory," Early wrote,
"you have failed consistently to cooperate with the edi-
tors in all sorts of matters" and then went on to list these
matters as follows. (a) Bartak's "injection of the issue of
sex discrimination in the selection of planning committee
members last February-and the snide manner in which
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
you raised the issue-is certainly an indication that you
have a hostile attitude toward the editors", (b) Bartak's
refusal to acknowledge receipt of Early's May 31 written
reprimand dealing with the subject of the hit list rumor
showed a lack of cooperation; (c) Bartak's "failure to
help quell the spread of rumors in the newsroom-as you
said you would do-is an indication of a lack of coopera-
tion"; (d) Bartak's refusal to fill out her timecard proper-
ly until notified by Early in June 1978 constitutes an-
other indication of noncooperation; (e) Bartak's reluc-
tance to comply with Associate Publisher Tully's request
for the transcript of the tape recording of Tully's meet-
ing with the women, and (f) what Early stated he con-
sidered the most serious evidence of Bartak's lack of co-
operation, her failure to stop talking to people in the
newsroom despite repeated warnings about wasting time
and the time of others.
Early started this evaluation interview by telling
Bartak he was treating this evaluation as Bartak's appeal
from her previous review because Bartak was not satis-
fied with the raise she had gotten and had asked for an-
other review. He stated he disagreed with her previous
review and was going to do a critique of her work and
tell her what was wrong with it and how she could im-
prove, that she had an enormous amount of talent, that
she was hard working, that her work as a beginner had
been good and it had improved, but that she had reached
a plateau and that he felt so strongly about this, in order
to make an impact on her he intended to put her on pro-
bation for 3 months.
Early then gave Bartak a copy of the three typed
pages of attachements and also read to her from the writ-
ten appraisal and the attachements Bartak for the most
part remained silent while Early read, but once or twice
she commented as follows. When Early indicated that
her coverage as urban affairs reporter was too narrow,
Bartak stated she was only complying with the direction
of her supervisor, Assistant City Editor Nilsson. And
with respect to Early's criticism of one of the articles at-
tached to the appraisal, Bartak pointed out that the orga-
nization of the story that Early was critical of was done
according to the specific instruction given to her by As-
sistant City Editors Schatt and Nillson
At the end of the meeting in response to Bartak's ques-
tions, Early admitted that Bartak's immediate supervisor,
Nilsson, did not agree with Early's appraisal of her
work, but Early stated that Nilsson did not have the re-
quired "perspective" about the matter Armstrong, in
commenting about his May 18 evaluation of Bartak's
work, as compared to Early's evaluation, stated that
Bartak had been one of the first employees he had evalu-
ated and that he did not know what the standards were
and that he did not disagree with most of Early's evalua-
tion and that Armstrong had not evaluated Bartak on her
cooperation.
Early concluded the meeting by stating he was placing
Bartak on probation for 3 months not with the idea of
getting rid of her but that he would terminate Bartak if
she did not show "great improvement " Bartak asked
whether Early was disciplining her on account of her
union activity Early emphatically denied this Bartak
asked if she could make some comments and, in sub-
stance, complained to Early that one of her bigest prob-
lems regarding her stories was that no one on the city
desk was willing to work with-her and discuss her sto-
ries Armstrong stated that the persons on the city desk
"dread it" when they observed Bartak coming to the
desk as they did not want to spend time talking as they
did not have more than 2 minutes to give a reporter on
some days Bartak expressed the view that she thought
that producing a story should be a partnership between
the reporter and his or her editor Armstrong and Early
replied that they expected the reporters to get things
done on their own. Bartak informed them that since she
had been assigned to urban affairs no one had told her if
she was expected to cover city planning issues or the
medical end from the Central Arizona Health System
and that she had never gotten an answer from the editors
when she asked what they wanted her to cover Early
stated she should just ask and she would get an answer.
Bartak stated she had asked and had never gotten an
answer
Before leaving Early's office, Bartak, in the space allo-
cated for "Employee Comments" on the form Early used
to evaluate her work performance wrote, "I don't agree
with this assessment as its differs dramatically from the
evaluation conducted 3 months ago, a period during
which little has changed "29
i. Early reprimands Mayne for defending and
complimenting Bartak's work performance
As urban affairs reporter one of the issues that Bartak
covered was the Papago Freeway Election that was
scheduled to be held early in November. In October,
early in the month, management decided that in connec-
tion with her work involving the'Papago Freeway Elec-
tion Bartak would work under the supervision of Eco-
nomic News Editor Jack Mayne Jr. and continue to
work for Assistant City Editor Nilsson in connection
with her other work Bartak was told of this decision
and thereafter Mayne supervised her in connection with
her Papago Freeway Election stories that by the end of
October, as the election approached, constituted the
great majority of her work.
On October 5 after her work evaluation interview
with Early, which ended at about 6 p in, Bartak re-
turned to the newspaper's library and finished research-
ing a story on the Papago Freeway Election and re-
turned to the paper the next day to write the story that
was scheduled to appear in the first edition of the
Sunday paper Mayne had given her a deadline of 6 p.m.
and Bartak started to give the story to Mayne for editing
late that afternoon and did not submit all of it until about
5.30 p.m
On October 10 City Editor Armstrong wrote a memo
to Bartak reprimanding her for missing the first edition
deadline with her Sunday freeway story The memo in
pertinent part read as follows
29 The description of the October 5 meeting described here is based on
Bartak's contemporaneous notes of this meeting that were placed into
evidence by all parties to this proceeding, and Early's testimony that was
not inconsistent with these notes
PHOENIX NEWSPAPERS 65
Although Mayne began getting the story about 4
pm saturday, you still were reporting it at 5 p m
Consequently, the story did not move to the news
desk until 6.30 p.m , too late for the [first] edition
The deadline for all copy to the news desk for
that edition on saturday is 5:15 p.m
The result of missing the deadline was that [ex-
plains the several consequences .].
I see no reason why that story should have been
late, especially one day following your performance
review in which the problem of late copy was dis-
cussed at length.
You simply cannot let this kind of performance
continue You must make deadline.
On October 11 Mayne, who was shown Armstrong's
memo by Bartak, wrote Armstrong as follows
Bonnie Bartak showed me your memo to her
dated Oct 10, 1979, regarding your dissatisfaction
with her for failing to meet the deadline with the
Sunday, Oct 7 history of the Papago freeway story.
She referred the matter to me because I was direct-
ly involved in the preparation and editing of the
story.
I have become aware of the concern that man-
agement has for certain aspects of Bonnie's per-
formance and that the matter has reached a serious
degree It is for that reason that I feel that I should
set the record straight concerning certain specifics I
feel you are not aware of as it pertains to this story
I am as concerned as others with deadline problems,
but feel there are mitigating circumstances here
Consider
-Bonnie worked a four-day week, having taken
off the Jewish religious holiday of Yom Kippur.
-Bonnie covered three daily news stories on the
remaining four days of the regular work week.
Copies are attached. I am, however, aware that the
assignment had been made somewhat in advance
-Researching literally thousands of clips cover-
ing 20 years is a very slow job. I took nine hours
one night reading only one election The material
had to be read and placed in proper order for use in
what I consider to be a well balanced, thorough
background of this subject (we have had comple-
ments from both sides and from general citizenry)
That takes time.
I would have assigned the story in a different
manner, i e, the reporter would have been given
four days to research the story and at least one day
for writing such an incredibly complicated piece.
The reporter would not have had to take two, three
or four hours out of three of the four days for re-
porting, writing and waiting for editing on three
stories Bonnie had about 20 hours for the same re-
search, with 6 hours for writing
-That Bonnie worked until 10 p in on Friday
night after the rather disquieting meeting she had
with you and Bob Early on the evening of Oct. 5
Regardless of the merits of the message you gave
her, any rational person would have been upset at
being placed on probation. That she continued
working, that she subsequently finished the job that
night, that she returned to the office the next morn-
ing to begin her writing, shows a degree of profes-
sionalism unmatched by some reporters I can name.
-I believe you may have misunderstood my
comments concerning the editing of this story-I
was unaware at the time of the gravity of the situa-
tion so did not attempt to be specific Although I
did not begin working Bonnie's story in ernest until
4 p in., much of it was available much earlier I was
tied up with problems on other stories in the ex-
traordinary load of ROP copy that appeared in the
same paper As you know, I believe in personally
editing and handling all of my people's copy, but
had to request assistance from you to update the
tritium story by Grant Smith. I said then that I was
already late in beginning work on the Bartak copy
You also told me on Friday night that we would
have no problem making the paper with the Bartak
story if I moved it around 6 p.m I moved the story
into the "one" file at 6 09 p.m
After a discussion with you and Frank Lopez re-
garding use of the story-and holding the sidebars
Then, Bonnie and I worked on the story some more
and I shortened it further It moved finally to the
"one" file at 623 p.m, though I did call it up a
couple of time [sic] to make minor changes and for
reference
I shall take any responsibility for late copy from
Bonnie during the pendency of her assignment to
my team If I am not able to cure the matter, I shall
report same to you immediately
On Sunday, October 14, a story written by Bartak about
the Papago Freeway Election was published. On Octo-
ber 15 Mayne wrote a memo to Armstrong in which he
was critical of certain changes that had been made in the
story after he had edited it. In addition, Mayne informed
Armstrong in this memo that "[Bartak] did a good job of
reporting and writing. She met the deadline I set" A
copy of this memo was sent to Bartak.
On October 25 a story about the Papago Freeway
Election written jointly by Bartak and Don Lowery, an-
other reporter working under Mayne's supervision, ap-
peared in the paper as the lead story on page 1. The
same day Mayne sent a memo to both Bartak and
Lowery, with a copy to Early and Armstrong, stating
that he was impressed by the story, that he thought they
had done a "fantastic job of reporting and writing," that
the story was "clean, accurate and understandable," and
that it was-being quoted by several of the local TV and
radio stations Mayne also stated that Bartak was "to be
especially congratulated for developing this story from a
vague tip over the weekend" and that he appreciated the
many hours of Bartak's own time that she had spent in
following the story.
Immediately on receipt of Mayne's October 25 memo,
Early, on October 26, summoned Mayne to his office
and, in the presence of Respondent's director of employ-
ee relations Eldon Case, spoke to him about this memo.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Early told Mayne he was concerned about, Mayne's
memos about Bartak's work performance because they
were interfering with Early's effort involving Bartak and
that Early expected that once he made a decision that
the newspaper's editors would carry out the decision
"precisely " Early warned Mayne that he would fire
anyone who did not carry out his decision "precisely."
Mayne pleaded ignorance of the situation involving
Early and Bartak Early responded that Mayne's general
knowledge of Bartak's situation should have been suffi-
cient to put Mayne on notice about the seriousness of the
problem and that it was not necessary for Early to have
briefed Mayne officially. Mayne questioned the practice
of not having been informed of management's wishes
concerning Bartak, but assured Early and Case that he
would not interfere with what Mayne characterized as
Early "accomplishing the unmentionable " Case nodded
Early stated it was essential that other members of man-
agement support his decisions, explaining to Mayne that
it made things difficult for Armstrong and Schatt when
Mayne and other assistant city editors defended Bartak's
work and work habits Mayne asked what Early thought
were Bartak's problems because although Mayne knew
she was on probation he had not been told by her regu-
lar supervisor, Nilsson, what her specific work deficien-
cies were and what, as a supervisor, Mayne should look
out for Early listed Bartak's several deficiencies and as-
sured Mayne that the purpose of Bartak's probation was
not to fire her but to get her to improve her work as he
thought she had the potential to become a leading re-
porter
The description of Mayne's meeting with Early and
Case on October 26 is based on the testimony of Mayne
and his contemporaneous notes of this meeting that were
placed into evidence by the General Counsel without
limitation and without objection. In crediting Mayne I
have taken into account the fact that I have discredited
him on another matter and that in certain aspects his ini-
tial testimony was not consistent with his testimony
given in conjunction with the EEOC action Neverthe-
less, I have credited his testimony and the accuracy of
his contemporaneous notes because when he testified
about this meeting he impressed me, in terms of his de-
meanor, as a sincere and reliable witness, whereas
Early's demeanor was unimpressive Moreover, Eldon
Case was not called on to corroborate Early's testimony,
thus, I can only infer that his testimony would have con-
flicted with Early's and been adverse to Respondent in
significant respects. Lastly, although I have not credited
Early's testimony, I feel constrained to note that certain
significant aspects of it are without substance Early testi-
fied that in reprimanding Mayne, he told Mayne that
Mayne had written two complimentary memos to Bartak
covering two stories that Early had written derogatory
memos about to Bartak (Tr 1100) There is no evidence
that Early ever criticized Bartak about the articles re-
ferred to by Mayne in his two complimentary memos
Moreover, there is no evidence that challenges Mayne's
evaluation of the articles in question and Bartak's contri-
bution to those articles Respondent offered no evidence
that Mayne's compliments about Bartak's work contained
in those articles were not warranted
j Bartak's vacation
As I have indicated supra, from early October through
the first week in November, Bartak worked as urban af-
fairs reporter under the supervision of two different per-
sons Jack Mayne, who supervised her'work in connec-
tion with the Papago Freeway Election, and Joel Nils-
son, who supervised the remainder of her work. The
Papago Freeway Election was held the first week in No-
vember at which time Bartak planned to take a 2-week
vacation In this regard during September and October
she accumulated overtime hours, including company
overtime hours, for which she was not paid Bartak
wanted to take her overtime in the form of compensato-
ry time off and apply it toward her vacation Bartak
thought that her accumulated overtime-both company
and statutory overtime-would amount to a week of
comp time Respondent's personnel manager, Owens, tes-
tified that at the time material to this case employees
were eligible to use unpaid company overtime as comp
time at the discretion of the department manager, but
that the policy was that the department managers would
only permit this type of overtime to be used as comp
time if it was taken in close proximity to when it was
earned. In other words, Bartak was not eligible to take
all the company overtime she had incurred as comp time
inasmuch as it had been earned several weeks prior to
the time she wanted to use it as comp time There is no
evidence that Bartak or other employees were ever in-
formed of this policy Quite the contrary, the manner in
which Supervisors Nilsson and Armstrong handled the
matter of Bartak's comp time indicates that at the time of
the events in this case Nilsson and Armstrong had either
forgotten the policy or had never been told about it
On October 29 Bartak notified Nilsson that she intend-
ed to be absent on vacation from Monday, November 12,
until Monday, November 26. She explained to him that
"one week is comp time built up during the election and
the other is accrued vacation time "30 On November 8
Nilsson asked Bartak to submit a breakdown of the
unpaid overtime she was asking to use as comp time
Bartak complied and the same day submitted a detailed
memo to Nilsson that reveals that of the 27 hours of
comp time that she was claiming, 8 hours were statutory
overtime and 19 company overtime
In the past Nilsson authorized vacation time and comp
time without checking with City Editor Armstrong, but
he had never encountered a situation where someone
was asking for so much comp time. In view of this cir-
cumstance, during the first week of November at a su-
pervisors' meeting, Nilsson told Armstrong that Bartak
wanted to take 2 weeks of vacation and use her comp
time for 1 week. Armstrong stated he had no problem
with Bartak using her accrued vacation time for 1 week,
but with respect to the comp time she wanted to use for
the second week Armstrong stated he knew she had
been paid for some of her overtime work and doubted
whether she had sufficient comp time to justify another
week off Armstrong told Nilsson he wanted to discuss
30 The record establishes that when Bartak worked, this overtime she
notified Nilsson
PHOENIX NEWSPAPERS 67
the question of Bartak's second week of vacation to be
sure she had a sufficient amount of comp time to justify
the second week 31
As a result of Armstrong's comments expressed at the
supervisory meeting, Jack Mayne, who was present at
that meeting, notified Bartak by memo that.
[Armstrong] says that he will not approve comp
time for your second week off He and [Nilsson]
will discuss it further with you Unless you have ad-
ditional vacation time , you will have to return to
work on November 19.
That same day Bartak sent a memo to Mayne informing
him she had 2 weeks of accrued vacation time left and
wanted to take 2 weeks of vacation from November 12
to 26 using her accrued vacation time Mayne verbally
told her he approved this request and initialed her memo
indicating his approval Mayne also verbally informed
Bartak that she must check with Nilsson to see whether
he concurred because now that the Papago Freeway
Election coverage was coming to an end Bartak would
no longer be working for him when she returned from
vacation but would only be working for Nilsson
On Friday, November 10, Bartak spoke to Nilsson
about her request for 2 weeks of vacation from Novem-
ber 12 to 26 Nilsson told her that Armstrong did not
want to grant her comp time for the overtime she
worked and had not been paid for and told her that if
she wanted to take 2 weeks of vacation the second week
would have to be based on her accrued vacation time.
Bartak informed Nilsson that because she had 2 weeks of
accrued vacation she would use it for her vacation and
that she would work out the matter of the comp time
when she returned from vacation Nilsson stated she
should speak to Armstrong about whether she was enti-
tled to the comp time she was claiming 32 Bartak went
over to speak to Armstrong about the matter but because
it was the end of the afternoon and Armstrong was too
busy to speak to her Bartak left on her vacation without
speaking to Armstrong.33
31 The description of the reason Armstrong gave to Nilsson for deny-
ing Bartak 's second week vacation is based on the credible testimony of
Nilsson and Mayne and Armstrong all of whom agree that Armstrong at
no time mentioned a company policy that prohibits an employee from
using his or her comp time for time off, if it was earned too long before
the requested time off
32 The description of Bartak's conversation with Nilsson is based on
Bartak 's and Nilsson 's testimony I recognize Nilsson did not testify about
this-conversation when he testified in the Federal district court EEOC
proceeding Nevertheless, I have found that the conversation took place
as described above because Nilsson's testimony was corroborated by Bar-
tak's Bartak impressed me, as I have already indicated , as a sincere and
reliable witness and, in terms of demeanor , Nilsson impressed me as a
conscientious and sincere witness when he testified before me in the in-
stant proceeding
33 Armstrong testified that he spoke to Bartak prior to the time she left
for vacation and that he told her that Respondent's policy did not allow
her to accumulate comp time based on overtime earned several weeks
previously Bartak , who in terms of her demeanor impressed me as a
more credible witness than Armstrong, specifically denied ever having
such a conversation with Armstrong Moreover, I find it incredible that
Armstrong, who did not give this reason to Nilsson or Mayne at the su-
pervisors meeting , would during the same period of time have given this
reason to Bartak Likewise , I find it incredible that if such a conversation
had taken place Bartak would not have told Armstrong , as she had told
Bartak was absent from work on vacation from
Monday, November 12 to Monday, November 26. On
November 19, as described infra, Bartak was assigned to
a new beat with a new supervisor, Assistant City Editor
Schatt. On November 19 both Schatt and Armstrong
asked where Bartak was as they thought she was due
back to work from her vacation, and Schatt had assigned
her work Nilsson, who had forgotten that Bartak had
previously indicated to him that she was going to use her
accrued vacation time to take a second week of vacation,
told Armstrong and Schatt that he thought Bartak was
supposed to have been back from vacation. Nilsson,
Schatt, and Armstrong all informed Early that they had
no idea where Bartak was and thought she was supposed
to be back from vacation. Mayne, as soon as he heard
that no one knew of Bartak's whereabouts, promptly no-
tified Early that after Armstrong's refusal to allow
Bartak to use her comp time for a second week of vaca-
tion that she had chosen to use vacation time that she
had accrued for the second week and was currently
taking her second week of vacation and that Mayne had
approved her request for the second week and showed
Early Bartak's written request of November 9 that he
had initialed Early questioned Mayne's authority to do
this stating that Bartak had been working under Nilsson's
supervision
On her return from vacation on Monday, November
26, Bartak received the following written reprimand
from Early for being absent without authorization
For two days the week of November 19, you
were considered absent without authorization As it
turns out I found out late Tuesday night that you
were on vacation
Howard Armstrong, Paul Schatt, Joel Nielson
[sic], Clara Toon, and I all expected you to return
from vacation and show up for work the morning
of November 19. There was an assignment waiting
for you on the City Desk when you came to work
on November 19 and as a result of your not show-
ing we had to assign that work to another person
on overtime.
Since none of the people you work for knew you
were taking a second week of vacation it is clear
that you did not follow the procedures As a matter
of fact, you only ordered one week's vacation pay
And then you took two weeks vacation
It was clear that the compensatory time off that
you requested was denied and that is why everyone
expected you to show up for work on November
19
There is a note however, from you to Mayne and
then from Mayne to you in which you requested an
additional week's vacation and Mayne approved it.
The problem with that is that Mayne was not in a
position to authorize you to take a week's vacation
Mayne and Nilsson , that if she could not use the comp time as vacation
time she would use her accrued vacation time for her second week of
vacation
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
since your immediate supervisor at that time was
Paul Schatt and the person who does the vacation
scheduling is Howard Armstrong I want to empha-
sis [sic] that you did not follow the right procedure
and that you compounded that by not telling Clara
Toon that you were going to take a second week of
vacation for our records.
You are well aware of the vacation procedure
around here You have been here a long time and
have worked under those procedures for a long
time. I consider your conduct seriously detrimental
to the good working order of our news room You
have consistently and deliberately ignored the work
rules of the news room for a number of years now.
This is an example of what I am talking about and
your constant failure to the deadline is another ex-
ample of what I am talking about
I want you to know that failure to show up for
work without authorization is an extremely serious
matter, one that could justify immediate dismissal. I
further want you to know that this matter will be
considered during your next performance evalua-
tion.
k Respondent reprimands Bartak during her
probationary period
On November 26 when she returned from vacation
Bartak was notified that she had been reassigned from
the urban affairs beat to a combined general assignment
and urban affairs beat under the direct supervision of As-
sistant City Editor Schatt. There is no contention that
this reassignment was made because Bartak's work was
unsatisfactory or to discipline Bartak or that the change
in job assignment was illegally motivated
During the period of Bartak's first probation, October
5 to January 4, 1980, she received several written repri-
mands as follows
The first one was the October 10 reprimand, already
discussed supra, from City Editor Armstrong for missing
the first edition with a story.
The next one was issued by Early on November 10
that Bartak received when she returned from vacation.
This reprimand commences as follows
Your freeway story on the top line November 10 is
a good example of what I have been talking about
in terms of confusing copy you have been produc-
ing The top of the story is very unclear. I think
this kind of copy is what has contributed to the
great confusion about the freeway issue in this
town Let's go through the story point by point At-
tached is a copy of the story with numerical nota-
tions
Early, at this point, for two single-spaced typed pages
criticized Bartak's writing of this story and ended by
complimenting her "for being on top of that report and
breaking the story first," but then goes on to complain
that this was all for nothing because "the copy is so con-
fusing nobody understands what is happening" and ad-
vised Bartak "this is not the kind of work that we expect
from journeyman reporters."
On December 3 Bartak received another written repri-
mand, this time from Schatt, for leaving an assignment
without telling anyone The circumstances surrounding
this reprimand are as follows. On December 3 Schatt as-
signed her to write the obituaries because the reporter
who normally did this was absent Bartak had previously
scheduled an interview for immediately after lunch that
day, so at about 11.45 a.m she went to Schatt's desk to
tell him She discovered Schatt had already left for
lunch, so she went to lunch and immediately after lunch
went on her interview and did not return until later that
afternoon She did not tell anyone on the city desk that
she would be absent During the period Bartak was
absent from the obituary desk, other personnel had to
staff it and service the public. When Bartak returned
later that afternoon she found a written reprimand from
Schatt criticizing her for an unauthorized absence.
Bartak first finished up all the obituraries for the day and
then explained to Schatt the reason for her absence. That
same day Schatt wrote a second memo to her acknowl-
edging that she had completed all the obituaries "on time
and according to style," and indicated that if she had in-
formed either Schatt or someone else on the city desk
that she had to be absent due to a previously scheduled
interview there would not have been any problem cre-
ated by her absence
On December 11 Early issued a written reprimand to
Bartak criticizing a story she had written that morning in
these terms
Your story on the Papago Freeway this morning is
another example of imprecise writing that leaves the
reader more confused than enlightened I do not un-
derstarid your inability to say clearly and straight
away what you mean
Early then listed for Bartak's benefit, in detail, 14 sepa-
rate instances in the story where imprecise and cumber-
some language was used and concluded the reprimand
with the statement, "it does not seem to me, Bonnie, that
you are making any progress in your writing. Please con-
centrate in your writing on saying straight out and as
simply as possible what you mean to say and use the
words that express exactly the meaning that you are
trying to convey " The reprimand was delivered that
day to Bartak by Schatt, who had edited the story in
question and who had been sent a copy of Bartak's repri-
mand Schatt informed Bartak that he did not agree with
the content of Early's reprimand, that he thought the
story was fine, that it was communicative, and that he
had told this to Early and had given Early a note to that
effect In this regard, on December 11, Schatt sent Early
a memo about Early's criticism of this story stating, "I
did not think the story was that bad, just mediocre I'm
afraid the criticism has to be directed at the editing as
well as the writing, then, because I let it, go that way "
On December 21 Howard Armstrong issued a written
reprimand to Bartak about talking to other workers
during working time, as follows:
PHOENIX NEWSPAPERS
On Tuesday of this week I had to tell you once
again to stop talking to people in the newsroom and
to start working
As you know, I have talked to you about this
several times in the past year You apparently have
chosen to ignore the repeated warnings against this
disruptive practice
On Tuesday morning, while I sat at the city desk,
I watched as you spent one full hour away from
your desk talking to several people in the news-
room You had been talking to Jack Mayne for sev-
eral minutes as he was reading copy at the news-
desk when I told you to get busy on the story you
were supposed to be writing I know that you were
not talking to Mayne about the story you were sup-
posed to be working on or about the one he was
reading on the VDT
I have told you repeatedly in the past year that
you cannot take your time and the time of others in
talk unrelated to your immediate work.
I do not understand why you choose to ignore
my warnings and directives on this. I can only tell
you again to stop this practice It takes time that
neither you nor those you talk with have to waste
A copy of this memo will be placed in your per-
sonal file
On receipt of this reprimand Bartak wrote on the bottom
that "Mayne had called me over to discuss a story with
him on this occasion " Bartak credibly testified that on
the day in question when she arrived at work Mayne
called her over to the news desk where he was working
and talked to her about a national story he was consider-
ing using that involved a topic Bartak had been covering
locally and that during their conversation Armstrong in-
terrupted and called her over to him and asked what she
was working on that day and after Bartak replied, told
her to get back to work. On observing Bartak's comment
on Armstrong's December 21 reprimand, Managing
Editor Early asked Mayne to comment on the reprimand
insofar as it involved Mayne On December 28 Mayne,
in reply, sent this memo to Early
I only vaguely remember the circumstances men-
tioned in Howard's memo of 12-21-79 in re Bonnie
Bartak
I did call Bartak to the news desk where I was
working on computer copy for the Sunday econo-
my section I asked her advice on a downtown re-
development of central cities story from the Chris-
tian Science Monitor service I was considering for
use inside (The copy was then squeezed out of the
paper by the incredibly tight section-but that is an-
other story.)
We did then chat about other things, but I have
no idea what about. I doubt if all of the talk con-
cerned business alone.
I must admit that I was unaware of any admon-
ishment by Howard since there were a number of
people laughing and joking while gathered around
the front of the office It was dust after Howard
came to work at 10 or 10.30 a.m. The place is usual-
ly a bit noisy at that time of the morning.
69
Howard did not inform me that he needed Bartak
to work on something and that I was aiding in
keeping her from work.
It is undisputed that there were several other reporters
and editors talking among themselves during the same
period that Bartak and Mayne were talking Likewise, it
is also undisputed that it is common practice when one
of the editors discusses business with an employee or em-
ployees that when they finish talking about their business
they will talk about nonbusiness matters before returning
to work.34
On December 23 Early issued Bartak a written repri-
mand concerning a story dealing with pornography in
which he states "your story on pornography dis-
plays the same kind of writing and reporting errors that
we have been trying to get you to overcome for some
time now. These kinds of writing and reporting flaws are
becoming a more and more serious problem because of
the upgraded standard of writing that we are beginning
to achieve throughout the paper." Continuing, Early
stated that the most serious writing and reporting flaw in
the story was when, by the sloppy use of language,
Bartak had left the inference that a lawyer who repre-
sented one of the bookstores was a pornographer Also,
Early pointed out several other instances of sloppy re-
porting in the story and imprecise writing and concluded
by stating-
I and others for the past several months have been
pointing out over and over again the deficiencies in
you stories and we also have been pointing out
ways to improve There does not seen to be any
improvement In fact, your work seems to be get-
ting worse This story, which incorrectly identified
[an attorney] as pornographer, certainly is an exam-
ple of regression rather than improvement.
Early considered this story to be so poorly written, in
particular the part of the story that inferred that the
lawyer representing the bookstores was a pornographer,
that he also placed a copy of the reprimand in the per-
sonnel file of Managing Editor Armstrong who was the
person who primarily edited the story and presumably
should not have permitted the article to be published in
this condition. Bartak acknowledged receipt of this repri-
mand by writing the following comment on the repri-
mand that she returned to Early "I am acknowledging
this only as a receipt and not in agreement. If you had
spoken to me about this, you would find that some of
your points are in error. I would be happy to explain fur-
ther should you wish me to do so " Early asked Bartak
what she meant by this notation Bartak told him she
34 I note that on the subject of Bartak talking to other reporters during
working time Armstrong testified that late in 1979 four different report-
ers-Swanson, Collier, Kelly, and West-complained to him that Bartak
was interfering with their work by talking to them As I have indicated
supra, Armstrong, when testifying about Bartak's work performance and
habits, was in general an unimpressive witness in terms of his demeanor
and I received the identical impression when he testified about this sub-
ject I also note that Collier, the only witness whom Respondent called in
an effort to corroborate Armstrong's aforesaid testimony, failed to do so
(Tr 1687-1691) ,
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would rather explain in writing and would get back to
him Bartak never did respond to Early's criticism of this
story nor did she ever respond to any of the other repri-
mands issued by Early concerning her poorly written
stories Instead, Bartak consulted with Union Representa-
tive Hatch about these reprimands and on January 2,
1980, Hatch wrote Eldon Case, the Respondent's em-
ployee relations director, as follows.
This is in response to the current probationary
status of Bonnie Bartak and the recent flood of criti-
cal letters directed at her.
It is clear that all of Bartak's problems' date from
February 9, 1979 when she led a group of women
into a meeting with Managing Editor Early to air
the women's concerns Matters worsened when she
filed an action with the EEOC on August 7, 1979
and since have steadily deteriorated.
The complaints against her, without exception, are
shallow, misleading and/or dust plain inaccurate
I have advised her not to answer further.
In reply by letter dated January 4, 1980, Case emphati-
cally denied that Respondent, in reprimanding Bartak
and placing her on probation, was motivated by the con-
siderations set forth in Hatch's letter.
1 Bartak's January 4, 1980 evaluation
On October 5, as described supra, Bartak's work per-
formance was evaluated by Managing Editor Early and
was found to be so unsatisfactory that he placed her on a
90-day probation, which was scheduled to end January
4, 1980, on which date she would be reevaluated During
the probationary period Bartak at different times worked
under the direct supervision of Editors Nilsson, Mayne,
and Schatt who in turn worked under the supervision of
City Editor Armstrong.
On January 4, 1980, Early met with Bartak and con-
ducted a review of her work performance for the 90
days she had been on probation None of the editors who
directly supervised her work during this period were
present and there is no evidence that Early, prior to for-
mulating his evaluation of Bartak's work performance,
spoke to any of them about her work performance, other
than Mayne, who, as I have found supra, was reprimand-
ed by Early for defending and complimenting Bartak's
work performance Nor is there evidence that Early con-
sulted with Armstrong about Bartak's work performance
during her first 90 days of probation. As a matter of fact
the record establishes that the basis of Early's evaluation
of Bartak's work performance for this period was pri-
marily his own personal observation of Bartak's perform-
ance In this regard, Early testified that he personally did
an in-depth scrutiny of Bartak's work performance
during this 90-day period because he was the person who
placed her on probation, thus he felt obligated to person-
ally evaluate her work Admittedly, as I have previously
found, this was the first and last time that Early ever
personally evaluated the work performance of an em-
ployee who he did not directly supervise
The evaluation form prepared by Early, and signed by
both Early and Armstrong, rated Bartak substantially
worse than Early's October 5 evaluation Early rated
Bartak's performance "unsatisfactory" in "Quality of
Work" and "Degree of Cooperation", " marginal" in
"Technical Knowledge & Ability," "Initiative," and
"Quantity of Work", and "average" in "Decision Making
Ability," "Carries Out assignments ," "attendance and
punctuality," and "personal appearance as it relates to
the fob " In the space on the evaluation form reserved
for "overall evaluation and comments," Early wrote,
"reporting and writing has worsened substantially since
last Review Unreliable and insincere " And, in the space
entitled "what goals and objectives were established for
the employee during the previous review? Were they
achieved?" Early wrote, "Failed to improve reporting
techniques, failed-to increase quantity of work Failed to
improve lead writing Failed to improve speed. Some im-
provement in meeting deadlines Failed to try sincerely
to improve."
Those present at the evaluation interview conducted
on January 4, 1980, in addition to Bartak and Early were
City Editor Armstrong, Union President Swanson, and
Early's secretary, Linda Barnett. Bartak took contempo-
raneous notes of this meeting, which the parties offered
into evidence The description of what was stated during
this meeting is based on those notes plus certain portions
of Early's testimony that are consistent with the notes
Early told Bartak that since her October 5 evaluation
he had paid personal attention to her work and in his
opinion it was worse during these 3 months than ever
before in her approximately 7 years of employment He
stated that her writing had gotten substantially worse be-
cause previously her problem had been in composing
lead paragraphs but after paying daily attention to her
stories Early had concluded that she had a more serious
writing problem, her stories were incomplete in that she
was omitting material, thus leaving the impression that
her stories were biased.35 Early criticized Bartak for
using sloppy language and gave as the most serious ex-
ample of this the story where she had left the impression
that an attorney, who represented a group of bookstores,
who were being sued as distributors of pornography, was
himself a pornographer Early indicated that this was
such a serious matter he had reprimanded the editor of
as Early testified that he had no idea how long this recently discovered
flaw in Bartak 's writing had existed He explained that such a flaw in a
reporter ' s writing is not easy to see because , "unless you really examine it
[referring to Bartak 's stories ] this is something that is not clearly evi-
dence as you read something It's clearly evidence as you begin to ques-
tion how did we get here It's symptomatic of a reporting lack and its
very difficult to uncover, and it's not easy " When asked why is this type
of a flaw in a person's writing difficult to uncover, Early testified, "be-
cause you really have to study it, you really have to know what these
stories are all about Not everybody can do that and the casual
reader , I don't think , would ever notice " He testified that the reason he
had not discovered this flaw in Bartak ' s writing years ago was , "because
I did not look at her work that hard I don't look at anybody's work that
hard That is not my fob " Unexplained in the record is why the several
editors who were directly, responsible for supervising Bartak's work
product had not in all the years she had worked for Respondent never
noticed this alleged flaw in her work
PHOENIX NEWSPAPERS
the story and asked Bartak if she recognized the serious-
ness of this. Bartak answered in the affirmative.
Early told Bartak he was puzzled about the fact that
her work had declined so rapidly because she had "a lot
of talent and ability" that was not reflected in her work
performance and that the reason for this, Early stated,
was that Bartak had an "attitude problem " Early stated
Bartak was "absolutely unreliable" and in support of this
pointed to her difficulty in meeting deadlines that Early
admitted had improved during her probation, her con-
tinuing talking to other reporters during working time,
her failure to inform her supervisors about her vacation
plans; her leaving the obituary desk unattended for 2-3
hours without telling anyone where she had gone and
also noted that while Supervisor Schatt had stated she
had finished all the work on that desk in a timely manner
that Early disagreed with Schatt; her delay in delivery-
ing the transcript of the meeting between Associate Pub-
lisher Tully and the women reporters despite her prom-
ise to do so; and her failure to answer Early's several
reprimands about her work despite her promise to do so
In connection with the last indicia of Bartak's unreliabi-
lity, Early indicated he was angry with Union Repre-
sentative Hatch for communicating with Employee Rela-
tions Director Case, rather than directly with Early,
about Early's reprimands of- Bartak's work and her pro-
bation Early told Bartak that Hatch's letter was written
"as if there is some kind of devious motive here impugn-
ing my motives as if I were trying to get you "
At this point Early informed Bartak that he had no
confidence in her, that by nature he thought she was un-
reliable and that not only was she unreliable but that her
work product was "slipping" and that her insincerity
was demonstrated by the fact that she tape recorded
meetings secretly, that she did not respond to his criti-
cisms despite her promise to do so and that she was ac:
cusing him of harassing her, that she had taken the posi-
tion that there was some kind of devious scheme and
that Early was harassing her because she was a woman.
Early stated he did not engage in such conduct and that
her accusation constituted the same kind of sloppiness
and inaccuracy that was characteristic of the stories she
wrote
Continuing, on the subject that he believed Bartak was
mistaken in her assumption that.Early was harassing her,
Early accused Bartak of engaging in reprehensible con-
duct by making this accusation and compared it to the
accusation she had made during her earlier evaluation
when she accused Early of placing her on probation be-
cause of her union activities At this point Early yelled
at Bartak, stating that he did not think either Early or
the editors could rely on her and that he had reviewed
her work because she had talent and was a good reporter
but that while he had tried to help her she in turn had
impugned his motives Early declared that he felt Bartak
had used all "these devious kinds of things" to cover up
her short comings and commented, "it's as if you are
trying to build yourself up as Joan of Arc for women's
rights " In this last regard Early expressed the opinion
that it was not Bartak who was the leading exponent of
women's rights at the newspaper but that Associate Pub-
lisher Tully had done more for the rights of women than
71
Bartak or anyone else Early then stated that other em-
ployees who had been active in the Union or who had
filed 'charges with the EEOC were 'not being harassed
and that the reason Bartak was being disciplined by
Early, and the others were not being disciplined, was be-
cause of Bartak's work performance
Early stated that he did not care whether Bartak car-
ried out her "causes" but' that her work performance
could not be unsatisfactory and that he had lost patience
with her, thought she was a "personally insincere and
unreliable person," that he was finished trying to help
her as he had lost his respect for her, that the Employer
had 6 years invested in her that was a lot of time and
effort, that ' he thought she had a lot of talent because
there was a time when she was a "rising young star," but
that all that was gone because she lacked "a positive atti-
tude " Early told Bartak he did not feel she could
change because he did not feel her personality would
allow her to change and that because he could not help
her inasmuch as it was obvious that they were not hit-
ting it off right that he was going to turn her over to
someone else who would watch her work and that in
view of. her past seniority with the Company and the
talent she had demonstrated in the past, he would extend
her probation for another 3 months and she would be as-
signed to the night police beat, but that if at any time
one of the editors told him she was not trying he would
immediately terminate her Early stated he did not want
to discharge her because they had a lot of time invested
in her, that she had a lot of talent, but that she was
throwing it away and was not going to improve as long
as she was insincere. The meeting concluded with Early
reading off the several ratings and comments that he had
marked down on Bartak's evaluation form
m Bartak's reassignment to the night police beat and
her discharge
On January 4, 1980, shortly after Bartak's evaluation
that resulted in an extension of her probation and her re-
assignment to the night police beat, Bartak met with City
Editor Armstrong to discuss her new assignment 36
Armstrong started the meeting by saying he agreed
with virtually everything that Early had previously said
to Bartak and agreed with Early's evaluation of her
work performance. Armstrong stated he thought Bartak
had the talent to do anything she wanted to do in the
paper, but told Bartak, "I believe you have made your
work secondary to your cause and I'm not sure what
your cause is but I believe you are pursuing it actively in
the newsroom," and told Bartak he had observed her
pursuing her "cause" in the newsroom during the past
year
Armstrong told Bartak that the reassignment to the
night police, beat was meant to "shock" her into the real-
ization that her work had gone down, that management
thought she could do good work, and that if by assign-
ing her to the night police beat it would break some of
36 The description of this meeting is based on the contemporaneous
notes taken by Bartak that were placed into evidence by the parties to
this proceeding
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her habits and retrain her it would be worth it. Arm-
,strong indicated that Bartak's gregarious personality
probably helped her on her beat but that it was disrup-
tive in the newsroom and that he could get 20 people to
agree with his assessment, and that if Bartak wanted to
continue to work for Respondent she would accept what
he was saying to her and what Early had said as an at-
tempt to rehabilitate her, but that he did not think she
would do that Rather, Armstrong expressed the opinion
that Bartak felt that Armstrong was also part of 'a dark
plot to banish her from the newsroom and asked if she
believed what he was saying Bartak replied, "I think
you are sincere in what you say." Armstrong ended this
topic by stating, "I think you are a valuable reporter
who has her priorities mixed up" and stated that if
Bartak placed her reporting and the reader first instead
of hei' "causes" that he thought Bartak could "turn
around real fast " Armstrong then discussed Bartak's
work schedule and indicated she would work from 3.30
p.m. to midnight and would be given 3 weeks to break in
on the night police beat and would start covering it on
her own either January 20 or 27.
Bartak, after being broken in for 2 weeks by the out-
going night police beat reporter, commenced her night
police beat assignment and worked on this beat until
April 4, 1980, when she was discharged. She worked
Tuesday through Saturdays from 3.30 p.m. until 12 mid-
night. She worked primarily out of the pressroom at the
main police station in Phoenix, Arizona, where there is a
multichannel police radio' Her main responsibility was to
cover 'street crime, which she did by monitoring the
police radio and covering the various newsworthy crime
or fire stories that occurred each night After she gath-
ered the information pertinent to a story she submitted it
to the night rewrite man in the paper's newsroom by
either teletyping it over to him, dictating it to him over
the phone, or hand delivering it. After 6 p in , the staff at
the paper's newsroom usually consisted of the night re-
write man, and the night city editor, although on occa-
sion a photographer or the managing editor was there
Bartak testified that the night police beat was probably
the least desirable beat for, a reporter and was generally
used as a training ground for beginners. Her testimony in
this respect was corroborated by Assistant City Editor
Schatt who testified that most reporters , regarded the
night police beat as an undesirable one.
The person who supervises the night police beat is the
night city editor Jack Kowalec held this position during
Bartak's tenure until the first week in February 1980
when he was reassigned to the position of night rewrite
man. and his place was taken as night city editor by
Susan Augsburger who held the position from early Feb-
ruary until Bartak's discharge Augsburger supervised
Bartak's work 3 days a week and on the 2 days Augs-
burger was off duty, which days Bartak worked, Bar-
tak's work was supervised by Earl Zarbin who acted as
night city editor 2 nights a week
During the period when she was employed on the
night police beat, Bartak received one written reprimand
that was issued to her on February 13, 1980, by Night
City Editor Augsburger under these circumstances On
February 13 Bartak covered a stabbing incident that took
place at a bus station She arrived at the scene about 8.30
p m and interviewed the witnesses to the incident She
then phoned Kowalec, the night rewrite man, and asked
if she should go to the hospital where the victim had
been taken or to the police station in order to wait for
the victim's name to be released Kowalec asked Augs-
burger who instructed him to tell Bartak to go to the
police station and wait there Bartak did this and from
the police station between 9 and 9 30 p.m. phoned in a
description of the events to Kowalec, who drafted the
story himself by typing it into the video display terminal
(VDT), making changes in sentence structure, syntax
etc , and in general polishing it for publication Then at
about 9.45 p in Bartak, still at the police station, learned
the identity of the victim and phoned this information
into the newsroom Augsburger then edited the story
and testified that because it had been submitted so late
that she let it go as is in order to be able to make the
first edition Kowalec testified that in cases of late break-
ing stories such as the instant story he would often take
the notes dictated by the reporter over the phone and,
using the VDT, in effect write the story even though the
reporters would still get credit for the story He further
testified that although Ausburger could have thought
that this particular story was written by Bartak, rather
than by Kowalec, it was highly unlikely due to the late
breaking nature of the story and because Augsburger ob-
served that Kowalec was using the VDT to, take the
story from Bartak.37 Later that evening, after the stab-
bing story was printed in the first edition, Lowalec ob-
served that there was a copy of the story on Augs-
burger's desk and that she was writing a memo. The
memo, which is dated February 13, 1980, was issued by
Augsburger to Bartak and signed by Augsburger. It in-
forms Bartak that the stabbing story had been changed
quite a bit between editions and explains what was
wrong with the story as originally written and ends by
stating that "the art [referring to the photo which was
published with the story] was on the page downstairs
before we had the story in type Speed was lacking If
the art had not been ready, we would have hid the story
until the final edition Please try to work on speed "
In her 8 years of working for the paper this was the
first,critical memo Augsburger wrote to an employee
even though as chief of the copy desk she had super-
vised several employees She testified that the reason she
wrote the memo was that "I felt so strongly about the
story, the way it was written . as her immediate su-
pervisor it was my job to explain to her why it was not a
good story." She testified that she was not prompted by
higher management to write this memo of reprimand and
testified that Managing Editor Early did not speak to her
about writing it But when questioned closely about this
subject, Augsburger seemed to be visibly uncomfortable,
as if she was concealing something, and she evasively
testified that she did not remember for sure whether
37 Augsburger testified that she had no knowledge that Kowalec was
responsible for writing this story I reject her testimony because through-
out the entire time she was testifying Augsburger was an extremely un-
convincing witness whose demeanor left me with the impression she was
not telling the truth
PHOENIX NEWSPAPERS 73
Early had anything to do with the issuance of this repri-
mand Reluctantly Augsburger admitted that before writ-
ing the reprimand she had read the story with Early, but
testified that she did not remember who initiated the
conversation about the story. Early, on the other hand,
specifically testified that it was Early who made the
changes in the stabbing story for the final edition and
that it was Early who suggested that Augsburger write
the February 13 reprimand to Bartak In view of the
foregoing, including my observation that Augsburger
was dissembling when she testified about the preparation
of the reprimand she issued to Bartak, I find that Augs-
burger issued the February 13 reprimand to Bartak be-
cause Early directed her to do so and that but for this
would not have written this reprimand.
As indicated supra, Bartak's probation was extended
by Early on January 4 until April 4, 1980. On April 4
Bartak's performance for the period was reviewed by
Early in the presence of Augsburger and other wit-
nesses 38 After outlining what had taken place previous-
ly in connection with Bartak's probationary status, Early
stated.
I have, in the last couple of days, checked with the
people on the city desk and have heard what they
have to say about [Bartak's work performance], and
in my opinion, after talking to them, that your work
has not improved at all As a matter of fact, that
your enterprise has declined. And for that reason,
on the basis of what I told you before about trust
and unreliability, that unless we get immediate and
substantial improvement . . so that your work
would be that of what we consider to be a compe-
tent journeyman you would be terminated.
And I don't think your work has reached those
levels so that we are going to at this time terminate
you.
Bartak asked what specifically there was in her stories or
other conduct that displeased Early. Early refused to get
into any specifics, stating to Bartak that "other than to
say that in the analysis of your work that nobody consid-
ered that your work has improved at all and that in a lot
of respects it has declined, particularly in the area of en-
terprise reporting." Early stated that Armstrong had told
him that in her last 3 months she had only written, one
enterprise story Bartak asked why, if her work wa un-
satisfactory, she had not been told about it before as in
the last 3 months Augsburger had only spoken to her
once about something that had displeased her Early, in
effect, responded that in his judgment supervision had
previously given her numerous and substantial critiques
to which she had not responded.
n An examination of the reasons that ostensibly
triggered early's decision to discharge Bartak
As described supra, during Bartak's January 4, 1980
performance evaluation, Early notified her that he had
extended her probation for another 3 months and intend-
ed to turn thejob of evaluating her work for this period
to other persons and that Early would stay out of the
evaluation process And, during Bartak's April 4, 1980
termination interview Early informed Bartak that, as he
had previously told her, he had in fact stayed out of the
evaluation process which had resulted in her discharge
and had relied on the recommendations of "the people
on the city desk" in deciding to discharge her I shall
now examine the reasons Early ostensibly relied on for
discharging Bartak
During the time material there were three night city
desk editors who were continuously connected with Bar-
tak's work as a night police beat reporter, Night City
Editor Augsburger who supervised Bartak's work Tues-
day, Wednesday, and Thursday, and Night City Editor
Zarbin who supervised her work Friday and Saturday 39
Augsburger and Zarbin were responsible to City Editor
Armstrong who was in charge of the operations in the
newsroom, but was not present there during the night
time hours when Bartak usually worked.
Early testified that on or about April 1 he spoke to
Augsburger and Armstrong and asked them to give him
memos stating what they thought about Bartak's work
performance and that on April 1 they submitted these
memos to him This testimony is contradicted by Augs-
burger who testified that she did not speak with Early
about Bartak's work during the period she supervised
Bartak and that it was Armstrong, not Early, who asked
her to prepare a written evaluation of Bartak's work
under her supervision and that on April 1 she prepared
such a memo and submitted it to Armstrong, not Early
Early testified he did not ask Zarbin for an evaluation
of Bartak's work performance because he thought Zarbin
did not have sufficient contact with Bartak's work so as
to be in a position to evaluate it. This testimony is inher-
ently implausible because Zarbin supervised Bartak's
work during this period for 40 percent of her working
time and was in a position during part of the 3 days he
was not supervising her to observe some of her work
Zarbin testified that during the period he supervised Bar-
tak's work as night police beat reporter, that she per-
formed satisfactorily, that he found her helpful and
always ready to do the work asked of her and on some
occasions she did more than expected, and that he had
no problems with her work and that her work needed no
more editing than other reporters whose work he edited
during that period
In deciding that Bartak's work during her last 90 days
of probation warranted her discharge, Early testified he
reviewed Bartak's past record of employment that had
resulted in her being placed on probation in the light of
the April 1 memoranda submitted to him by Augsburger
and Armstrong
Augsburgers' April 1 memo that was submitted to
Armstrong, not Early, stated that during the period
Augsburger supervised Bartak that Bartak did not
96 The description of this meeting herein is based on the transcript of a
tape recording of this meeting introduced into evidence by the General
Counsel without objection
a9 Although Zarbin did not supervise Bartak 's work Tuesday through
Thursday, he was, during those 3 days, in a position to observe some of
her work product on those days because he worked at the city desk as an
assistant editor for over 50 percent of the time Bartak worked
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
produce a single enterprise story despite the fact that on
five separate occasions Augsburger spoke to her about
producing such stories, and that once Bartak submitted a
story a half an hour later than the time Augsburger re-
quested that it be submitted This memo was submitted in
response to Armstrong's request that Augsburger draft a
report evaluating Bartak's work performance under her
supervision
In support of her reference in her April 1 memo that
Bartak failed to submit enterprise stories, Augsburger tes-
tified that Bartak did not produce one such story despite
several requests by Augsburger Bartak, on the other
hand, testified that while working on the night police
beat she produced several so-called enterprise type sto-
ries and described them in detail one about a school for
police detectives, two others about the city council's ef-
forts to fill the vacant position of police chief, one about
a newspaper editor who was getting an award, another
about the efforts of the police supervisors to get higher
wages; and three or four about the police slowdown.
Bartak further testified that on only two occasions did
Augsburger speak to her about so-called enterprise sto-
ries Once when Augsburger asked her to do a story
about the use of computers in police cars, Bartak told
her that this story had been done already by the paper
and Augsburger in response told Bartak to look around
for other feature stories. And another time Augsburger
asked her to do a feature about the use of police helicop-
ters but when Bartak tried to do the story she was not
able to get the cooperation of the police. I am of the
opinion that Bartak was the more credible witness be-
cause in terms of demeanor she seemed to be a sincere
witness whereas Augsburger did not. It is for this reason
that I reject Augsburger's testimony that despite several
requests to produce enterprise stories Bartak did not
produce one such story for Augsburger. Rather, I find
that Bartak produced several such stories
Regarding the late submission of copy, as I have indi-
cated supra, Augsburger's April 1 memo mentions only
one such incident where she asked Bartak to submit a
story about the police slowdown by 10 p in and it came
in later During the hearing Augsburger expanded con-
siderably on this She testified that Bartak's copy was
"always" and "consistently" submitted to her late and
testified that on a dialy basis Bartak's copy would show
up at her desk just a few minutes before deadline, and
because of this Augsburger did not have time to careful-
ly edit Bartak's copy but had to run it right on through
I am persuaded that, if Bartak's work performance was
so unsatisfactory in this respect, Augsburger would have
commented on it in her April 1 memo Augsburger failed
to explain this omission She also testified that twice
Bartak submitted copy after the deadline. Once involving
the February 13 stabbing incident, referred to supra, and
another time involving a story about an injured fireman
Neither of these episodes was mentioned in her April 1
memo evaluating Bartak's work performance, nor did
Augsburger explain the reason for the omission Bartak
credibly testified Augsburger did not indicate to her ver-
bally or in writing that she was dissatisfied with Bartak
for missing deadlines, other than the written reprimand
about the missed deadline concerning the stabbing inci-
dent Under all the circumstances including my impres-
sion that based on her demeanor Augsburger was not an
honest witness, I am persuaded that Augsburger's criti-
cism of Bartak for failing to meet deadlines and for tardi-
ness in submitting copy, expressed for the first time at
the hearing, was a fabrication I recognize Bartak's Feb-
ruary 13 stabbing story missed deadline But, as de-
scribed in detail above, the details surrounding the sub-
mission of this story and Augsburger's reaction warrant
the inference that due to the late breaking nature of the
story Augsburger placed no blame on Bartak for missing
the deadline, but only at Early's insistence reprimanded
Bartak Thus, as I have found supra, Augsburger's repri-
mand was written only at Early's direction and, in addi-
tion, Augsburger failed to mention this incident either di-
rectly or even by implication in her April 1 appraisal of
Bartak's work performance Augsburger failed to explain
why this incident was omitted from her April 1 evalua-
tion I am convinced that, when viewed in terms of the
whole record, the reason Augsburger did not mention
the February 13 incident in her April 1 evaluation of
Bartak's work performance was that she realized that
there were extenuating circumstances surrounding this
story and had initially reprimanded Bartak only because
of Early's insistence.
When asked to describe her complaints about Bartak's
work performance, in addition to listing Bartak's alleged
failure to write enterprise stories and her late copy,
Augsburger also testified that "a couple of [Bartak's] sto-
ries were not well put together at all " But, when later
describing why Bartak did not perform competently
under her supervision, Augsburger significantly omitted
to mention unsatisfactory writing Likewise, during the
EEOC Federal district court proceeding Augsburger sig-
nificantly failed to attribute poor composition to Bartak
when enumerating her complaints about Bartak's work
Also, this alleged failing was omitted from Augsburger's
April 1 written evaluation of Bartak's work performance
Under the circumstances, I am convinced that Augs-
burger's criticism of Bartak's writing ability was an after-
thought and was patently false 40 I recognize that on
February 13 Augsburger wrote a memo to Bartak in
which she was extremely critical of Bartak's stabbing
story I have found above, however, that due to the late
breaking nature of this story that the night rewrite man
wrote this story and Augsburger knew it and that but for
40 In addition to her above-mentioned testimony about Bartak's unsatis-
factory writing, Augsburger, who worked as copy editor and then chief
copy editor from 1973 through 1979 testified that during this entire
period, 6 to 7 years, Bartak's stories were always poorly written, that
they were long, hard to follow, and overwritten, and that she was one of
the poorest writers on the paper Based on this it would appear that, on
her transfer from the copy desk to the city desk where she supervised
Bartak directly, Augsburger would continue to have a problem with
what can only be characterized as Bartak's outrageously bad writing
But, not only did Augsburger fail to criticize Bartak's writing ability in
her April I written evaluation of Bartak's work performance, but also
testified that she could only recall two stories that Bartak wrote during
the time she supervised her on the night police beat that she was critical
of the writing Under these circumstances and in view of Augsburger's
poor demeanor that left me with the impression that she was an insincere
and unreliable witness, I have rejected her testimony about Bartak's poor
writing ability
PHOENIX NEWSPAPERS 75
Managing Editor Early's instruction would not have rep-
rimanded Bartak about this. That Augsburgei• did not
hold Bartak responsible for the way in which the stab-
bing story was put together is illustrated by her unex-
plained failure to even mention it directly or by implica-
tion in her April I evaluation of Bartak's work perform-
ance As a matter of fact, Augsburger did not even men-
tion in this evaluation that she was critical of Bartak's
writing
Armstrong's April 1 memo to Early that sets out his
evaluation of Bartak's work performance as night police
beat reporter stated that Bartak had written only one en-
terprise story that was published in January 1980 and
that Augsburger and the other city editors told Arm-
strong on several occasions that Bartak was told to write
enterprise stories, but did not do so and that Armstrong
was also told Bartak missed deadlines on breaking stories
that should not have been missed After setting out these
comments Armstrong's memo stated that this was not
the performance the Employer should expect from a
journeyman reporter and concluded by stating, "for
these reasons, I recommend that [Bartak] be terminated."
As I have previously found supra, Augsburger's and
Armstrong's assertion that Bartak produced no enterprise
stories during the 2-month period in which Augsburger
supervised her is false and that Bartak, as a matter of
fact, produced several such stories.
Regarding the allegation in Armstrong's April 1 memo
that Bartak, so Armstrong had been told, had missed
deadlines on breaking stories, Armstrong testified that
because he was not present in the newsroom at night he
based this assertion on the reports he got' from Augs-
burger that Bartak's copy was often submitted late and
that Augsburger had criticized Bartak for engaging in
this conduct Augsburger contradicted this testimony
When questioned about what she had told Armstrong on
the several occasions that Armstrong asked her about
Bartak's work performance, Augsburger testified that the
only criticism about Bartak that she expressed to Arm-
strong was Bartak's failure to submit enterprise stories
Moreover, Augsburger's April 1 written evaluation of
Bartak's work performance submitted to Armstrong in
effect states that Bartak only missed deadline once
during the period she worked for Augsburger
Although not mentioned in Armstrong's April 1 memo
about Bartak's work performance, Armstrong testified
that when he visited the newsroom on Thursday and
Friday to do the weekend stories that he observed
Bartak talking to other reporters in the newsroom and
disrupting their work Armstrong was unable to give
specific examples of what he observed her doing and
failed to note this in his April 1 memo to Early More-
over, his testimony was not corroborated by Augsburger
who worked on Thursday nights, nor did Augsburger in-
clude this in her April 1 memo to Armstrong I find it
incredible that if Bartak was interfering with the work of
other reporters during working time that' Augsburger
would not have testified about this and that neither Arm-
strong nor Augsburger included this in their April 1
evaluation of Bartak's work performance In view of
these circumstances I find Armstrong concocted this tes-
timony
Early testified that the basis for his decision to termi-
nate Bartak was as follows-
I thought that the last 90 days that she spent on that
newspaper was probably . . the worst work of the
whole seven years that she had been there. Her
work had just-first of all, there was not very much
of it, and what was done was really nothing to
speak of. I thought her work had really declined,
and I thought her attitude was bad I just did not
think there was any opportunity to save her
In support of his assertion that "there was not very
much of [Bartak's work]" during her tenure as night
police beat reporter, Early testified "she just did not do
much work in those last 90 days . . . she did not write
many stories. She'd-go on the police beat, and at night
she would go home There was not much happening in
between." When questioned about the basis for his con-
clusion that Bartak in effect produced very few stories
while on the night police beat Early was vague and eva-
sive (Tr 1260), and his testimony about the quantity of
Bartak's production was not corroborated by either
Augsburger or Armstrong or any other witness nor did
they state in their April 1 evaluations of Bartak's work
performance that her production was poor 41 I cannot
believe that Armstrong and Augsburger would not have
testified about Bartak's poor quantity of work or have
notified Early about this in their April 1 memos evaluat-
ing her work performance if, in fact, Bartak was such a
poor producer as Early would have me believe It is not
surprising that neither Augsburger nor Armstrong com-
plained to Early about Bartak's productivity inasmuch as
it is undisputed that during her tenure as night police
beat reporter Bartak produced more copy than all the
day police beat reporters combined. Under all the cir-
cumstances, I find that Early's testimony concerning
Bartak's low productivity was patently false
In summation, Early, in deciding to discharge Bartak,
relied on the evaluation of Bartak's work performance
submitted to him on April 1 by Bartak's supervisors on
the city desk A close scrutiny reveals, for the reasons
set forth above, that the misconduct attributed to Bartak
in those evaluations submitted to Early were false and
that the additional allegations of misconduct brought up
at the hearing for the first time by Early, Armstrong,
and Augsburger also were a fabrication I therefore find
that the reasons advanced by Early that triggered his de-
cision to discharge Bartak were a fabrication
o. Esquer's conversation with Shover
On December 21 Cecilia Esquer met with Respond-
ent's director of community and corporate affairs, Wil-
liam Shover. Esquer, a lawyer, is a representative of a
community group called Citizens Organized for Unbi-
41 I recognize that in response to a leading question Augsburger testi-
fied she did not get copy from Bartak every day This ambiguous testi-
mony does not warrant the inference that Augsburger was complaining
about Bartak's productivity As a matter of fact both before and after this
testimony, when asked to list her complaints about Bartak's work per-
formance, Augsburger significantly did not complain about the quantity
of her production
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ased Press (COUP), whose purpose is to persuade Re-
spondent by means of either picketing , consumer boy-
cotts, leafleting , and verbal persuasion to employ more
minority workers and to give increased and improved
coverage of issues and events that concern minority
groups
The meeting between . Esquer and Shover on Decem-
ber 21 ' was held for the purpose of talking about the dif-
ferences between COUP and Respondent and to see
whether some or all these differences might be resolved.
During the meeting, according to Esquer 's testimony,
she advised Shover that COUP was considering asking
the EEOC for a commissioner 's charge against Respond-
ent that would involve a review of Respondent's em-
ployment and recruiting practices Esquer testified that
in resposne to this Shover stated , "they had troublemak-
ers like that in the newspapers" and asked Esquer if she
knew Bonnie Bartak and informed Esquer that Bartak
had filed a complaint with the EEOC against the news-
papers but that Respondent was not affraid of the
EEOC
Shover specifically denied making the remarks attrib-
uted to him by Esquer , rather, he testified that during
the meeting he took the position that COUP's claim that
Respondent was unfair to minority groups was based on
conduct engaged in a number of years ago by the former
management at which point of time in the conversation,
Shover testified, Esquer brought up Bartak's name
Esquer, according to Shover , stated that Respondent was
presently treating its female workers unfairly and in par-
ticular had not been fair to Bartak who had been denied
a promotion and that the Employer had been placing a
lot of pressure on her and she had filed a charge with
the EEOC against Respondent Shover testified that he
replied that as far as he was concerned his relations with
Bartak had always been good, that he had even compli-
mented her about certain of her stories , but that he
would rather not discuss the issue of Bartak's EEOC suit
because he did not know that much about it.
Based on my observation of the demeanor of the wit-
nesses, I reject Esquer's testimony and credit Shover
who seemed to be a more credible witness.
p Mayne's discharge
Mayne, who began working for Respondent in May
1977, previously had over 20 years of journalistic experi-
ence Immediately before coming to work for Respond-
ent he was city editor for a large metropolitan daily
newspaper published in Seattle, Washington, and prior to
that was the assistant bureau chief in New England for
the Associated Press. He worked for the Respondent at
the Arizona Republic from May 1977 until Steptember
1978 as night city editor and the chief of the paper's leg-
islative bureau and from September 1978 until his termi-
nation in January 1980 as the paper's economic news
editor In his position as economic news editor he super-
vised the work of several reporters and was admittedly a
supervisor, as that term is defined in the National Labor
Relations Act, who normally would not be afforded the
protection of Section 7 of the Act. Mayne, as economic
news editor, reported to and was supervised by City
Editor Howard Armstrong As I have described supra,
Armstrong's assistant or second in command on the city
desk was Assistant City Editor Paul Schatt
It is undisputed that from almost the start of his em-
ployment with the Arizona Republic Mayne concluded
that the city desk was operating in an inefficient and un-
satisfactory manner and openly expressed these senti-
ments to other members of management And, as early as
June 1977, when Armstrong became city editor, Mayne
submitted a long list of suggestions to Armstrong about
how to perform his job as city editor successfully
In August 1979 Mayne, at his own request, met with
Respondent's recently appointed Associate Publisher/-
General Manager Tully and informed Tully that he
thought the management of the city desk was, in general,
weak and inefficient and felt Tully's appointment would
bring a sense of professionalism to the operation of the
newspaper. Mayne was critical of the way in which
Managing Editor Early and City Editor Armstrong were
operating the city desk and told Tully that he thought he
could do a better job and, went so far as to suggest that
Tully discharge Early. Mayne's criticism about Early's
and Armstrong's work performance was not expressed in
the form of an ad hominem attack but, as Tully testified,
was based on specifics pertaining to the way in which
Early and Armstrong performed their respective jobs
Tully testified he "was quite interested in [Mayne's] ob-
servations" and expressed his appreciation to Mayne for
speaking to him directly about the matter and indicated
he -would keep Mayne's remarks confidential. Tully in
fact kept Mayne's remarks confidential.42
In 1977, 1978, and 1979 Mayne also criticized Early's
and Armstrong's as well as Assistant City Editor Schatt's
work performances in conversations with them. But, in
talking with Early he usually complimented Early's
work performance and degraded Armstrong's - and
Schatt's When talking with Armstrong he usually com-
plimented Armstrong's work performance and degraded
Early's and Schatt's and when talking with Schatt com-
plimented Schatt's work performance and degraded
Early's and Armstrong's
In 1978 Armstrong learned from two or three of,his
assistant editors that Mayne was degrading his work per-
formance behind his back and was stating, among other
things, that Armstrong had no control over his staff, that'
Armstrong did not- know what was going on in the city
room, and that he was not assertive enough and did not
plan the coverage of the department adequately Also,
Schatt testified that in February 1979 Schatt, Early, and
Armstrong met and "compared notes" about what
Mayne was saying to each of them because, as Schatt
further testified, "it had seemed to become a problem[,
we] felt like things were being stirred up." At this meet-
ing Schatt, Armstrong, and Early, after comparing notes,
discovered that Mayne was telling each of them different
things as if he was trying to turn them against one an-
other Armstrong in particular was informed by Schatt
and Early that Mayne was saying that he, thought Arm-
42 Mayne and Tully each testified about the meeting Their testimony
was not inconsistent and each impressed me as a credible witness I there-
fore have relied on a composite of their testimony to describe this meet-
ing
PHOENIX NEWSPAPERS 77
strong was weak and unable to make a decision and did
not know what was going on in the city room and could
not operate the city desk and that Mayne said he thought
he could do a better job of operating the city desk
Armstrong testified that as early as 1977 he had con-
cluded that Mayne would step on any one in order to
advance himself because at this time Armstrong observed
that Mayne had begun to degrade the work performance
of the other editors with whom he worked, in particular,
Paul Schatt, as well as Managing Editor Early, and that
Mayne continued to do this in 1977, 1978, and 1979
On July 31 Mayne received his annual work perform-
ance evaluation from Schatt that was approved by Early
on the same day In the space on the appraisal form that
asks if the supervisor evaluated is "supportive of manage-
ment," Mayne was ranked as "average" and in the space
reserved for comments by the person doing the evaluat-
ing there was no mention directly or indirectly about
Mayne's backstabbing of other members of management.
An examination of the evaluation reveals that overall
Mayne was evaluated as "above-average" and received a
substantial merit pay raise.
During 1978 and 1979 when Mayne, as described
supra, was being critical of the ability of Armstrong and
Schatt to manage the city room, Managing Editor Early
had come to the same conclusion about the competency
of Armstrong, Schatt, and the other assistant city editors
and the only thing that stopped him from making whole-
sale changes during 1979 in that department was the lack
of experienced employees to fill these positions 43 How-
ever, during the latter part of 1979 Early expressed his
disapproval of Armstrong's job performance by placing
him on probation and finally on January 20, 1980, except
for Armstrong, replaced everyone of the assistant editors
employed on the city desk.
During the 10-day period from December 25 through
January 4, 1980, Armstrong and Schatt were absent from
work and Mayne was appointed to be in charge of the
city desk for that period Mayne, when he took over the
operation was, like Early, highly critical of the way in
which Shcatt and Armstrong were operating the city
desk. He was also very cirtical about the condition in
which he found the city desk During this 10-day period
Mayne expressed his dissatisfaction about the poor state
of affairs he found at the city desk and openly criticized
Armstrong and Schatt for operating the desk in what he
felt was an unsatisfactory manner In fact, Mayne told
Early that the city desk was in a state of confusion, that
there was no planning or organization there, that the re-
porters were dissatisfied with the editors, that there was
no leadership or direction, that Armstrong was disliked
by the staff because he was aloof and could not be con-
tacted, and that Mayne thought he could do a better job
as city editor than Armstrong. Mayne also informed
Early that he thought Schatt did not have the ability or
competency to perform his job, and that he had messed
43 Early testified, "I had come to the conclusion that the [city] desk
really needed some overhauling, badly needed over hauling because we
were dust losing it We were losing our dignity" and "had come to the
conclusion the only way I could do that was to get rid of most of the
people that were on it and replace them with people who could bring
some new blood, some new talent, into it "
up the planriin'g on the city desk and was not respected
by the staff
On his return to work on January 5, 1980, Armstrong
learned from other editors that Mayne had been making
derogatory comments about the condition of the city
desk Mayne told Armstrong that he thought the city
desk was in a state of confusion, that it was not orga-
nized, that the desk was missing stories, and that report-
ers were not being kept busy and was generally critical
of Schatt's work as these were areas that SChatt was re-
sponsible for in his capacity as Armstrong's assistant.
On either January 13 or 14, 1980, according to Early's
testimony, Armstrong asked him, "how much longer am
I going to have to endure [Mayne]" and told Early that
he wanted to discharge Mayne because he did not trust
him, and that he felt he could not turn his back on
Mayne because Mayne was always backstabbing and
slashing people and would tell you what a great person
you were while at the same time tell someone else what
a "bumblehead" you were Armstrong stated he could
not trust Mayne and did not want to deal with him any
more and that Mayne was a "rumor-spreader" and a
backstabber. Early further testified that in response to
Armstrong's comments that Early stated "if you want to
fire him fire him" and that ended the matter Armstrong,
on the other hand, testified that after Early had listened
to his reasons for wanting to discharge Mayne that Early
told him, "we'll see if we can do that" and that Early
left and did not speak to him about the matter for an-
other few days at which time he advised Armstrong that
he had discussed the question of Mayne's discharge with
the paper's publisher and associate publisher and that
they had decided to accept Armstrong's recommendation
and that Armstrong could fire Mayne.
On January 15, 1980, Armstrong, in the presence of
Schatt, while reading from a prepared statement, in-
formed Mayne about his discharge The description of
the pertinent part of this meeting follows 44
ARMSTRONG: I have given a lot of serious
thought to this in the past few days and I have
come to the conclusion that you are not trustwor-
thy. I intend to stay at this paper for a long time
and it is an uncomfortable situation to have some-
one you can not trust You do many things well,
but I don't think I can trust you, so I have to termi-
nate you . I have requested this of the manag-
ing editor and the associate publisher and the pub-
lisher and they all agree I believe that is all I have
to say. Do you have any questions?
MAYNE Could you elaborate on some of those
things?
ARMSTRONG' I don't feel I have to give any more
explanation
On January 18, 1980, Armstrong called a meeting of
the several reporters on the economic news staff who
had worked under Mayne's supervision and stated that
the reason for the meeting was so he could explain why
44 Based on a transcription of Mayne's contemporaneous notes of the
meeting that were admitted into evidence without objection
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mayne had been fired. Armstrong stated that he had told
Mayne that Armstrong did not trust hini and did not feel
he could turn his back to him He urged them to listen to
his side and whatever Mayne might say about his dis-
charge and then to check out the facts Armstrong stated
that he had heard that Mayne had told the employees
there was a hit list on the newspaper with the names of
about 12 people Armstrong stated this was false, that he
had not heard Mayne make that statement but if Mayne
was "putting that information out" that is the "very
damn thing that got him fired." Armstrong explained
that "with management, you can't have that kind of
thing " One of the reporters asked what they should say
if there were inquiries about Mayne's discharge Arm-
strong answered, "[Mayne's] inability to get along with
other people in management." Armstrong ended the
meeting by saying that Mayne was a "damn good news-
paper person" and that Armstrong had nothing but re-
spect for his newspaper ability
2 Discussion and ultimate findings
a. Respondent's motion to dismiss
Bartak filed a series of discrimination charges against
Respondent with the EEOC- on August 7 alleging dis-
crimination in terms and conditions of employment
against herself personally and the female employees as a
class; on December 13 alleging having been placed on
probation for having filed the first charge; and on April
8, 1980, alleging that she was discharged for having filed
the previous charges. Mayne filed a discrimination
charge against Respondent with the EEOC on January
23, 1980, alleging that he was discharged for defending
Bartak against discrimination Thereafter, pursuant to
Section 706(f)(2), Title VII, 42 U S C. Section 200e-
5(f)(2), the district director of the EEOC, as authorized
by EEOC Procedural Regulations, 29 CFR Section
1603.23(a), on the basis of a preliminary investigation,
concluded that prompt judicial action was necessary to
carry out the purposes of Title VII Accordingly, the
commission, on May 28, 1980, filed a petition in the
United States District Court for the District of Arizona
for a preliminary injunction. Equal Employment Opportu-
nity Commission v Phoenix Newspapers, Inc, No CIV 8-
404 PHX VAC (D Ariz 1980) The court, by its order
dated September 4, 1980, denied the EEOC's "petition
for preliminary relief in all particulars "
Prior to the hearing in the instant proceeding, Re-
spondent filed a Motion for Partial Summary Judgment
with the Board on the ground that the issues litigated
before the court in the EEOC proceeding have a collat-
eral estoppel effect insofar as the complaints before the
Board allege that Respondent violated Section 8(a)(1) of
the Act by disciplining and discharging Bartak because
she filed charges with the EEOC and discharged Mayne
because he refused to cooperate with Respondent's plan
to retaliate against Bartak for filing the charges. The
Board denied this motion without prejudice to Respond-
ent's right to resubmit it to the administrative law judge
conducting the hearing in this case Respondent renewed
its motion at the outset of the hearing and, with the Re-
spondent's agreement, I treated it as a motion to dismiss
and reserved ruling The motion to dismiss is denied
The doctrine of collateral estoppel has three require-
ments (1) the adjudication must be valid and final, (2)
there must be an identity of issues determined, and (3)
there must be an identity of parties 2 Am Jur 2d, Admin-
istrative Law §§ 500-504, 113 Moore Federal Practice
¶¶ 0.405[3] and ,0 441[2], Cromwell v. County of Sac, 94
US 351 (1876). In the instant case there has been no
final adjudication of the issues on the meri ts.45 The
court's authority in the preliminary injunction proceed-
ing brought by the EEOC terminated with the conclu-
sion of the administrative phase of the EEOC's adminis-
trative process.46 Equal Employment Opportunity Com-
mission v. Pacific Press Publishing Assn , 535 F 2d 1182,
1185 (9th Cir 1976); Hyland v. Kenner Prod. Co, 9
E P D paragraph 10,108 at 7515 (S D Ohio 1974) In
ruling on the petition for preliminary injunction, the
court's findings of fact and conclusions of law were pre-
liminary ones and do not foreclose findings or conclu-
sions to the contrary based on a record developed subse-
quent to the preliminary injunction hearing. Oburn v.
Shapp, 521 F 2d 142, 149 at fn 18 (3d Cir 1975). For, it
is settled that "[w]here the parties do not submit the case
to the trial court on its merits the general rule is
that the decision of either the trail or appellate court in
granting or denying a temporary injunction does not
estop the parties or the court as to the merits of the
case." 7 Part 2 Moore Federal Practice ¶ 65.21 at 65-157
and case cited at fn. 33. Accordingly, in ruling on the
EEOC's petition for preliminary injunction the court's
authority was temporary and its findings of fact and con-
clusions of law do not effect subsequent actions on the
merits and cannot be considered as a final adjudication
for collateral estoppel purposes
45 Although the preliminary injunction proceeding in Federal district
court lasted several days and was apparently litigated at length, the rule
of collateral estoppel is designed to operate only when there has been a
final resolution of an issue in a particular forum and not, as is explained
infra, when the resolution has been less than final no matter how exten-
sively or well litigated
46 The following are the steps which the EEOC must take under Sec
706 of Title VII, 42 U S C §§ 2000-e et seq in the prevention of unlaw-
ful employment practices when a charge is filed by an individual
1) EEOC determines whether preliminary or temporary relief is
necessary and, if so, institutes appropriate judicial action 29 CFR
[Section] 1601 23(a)
2) Where EEOC determines that there is reasonable cause to be-
lieve that an unlawful employment practice has occurred, it attempts
to eliminate the practice by conference, conciliation, and persuasion
29 CFR [Section) 1601 24(a)
3) If such attempts to obtain voluntary compliance fail, the Com-
mission may (but is not required to) bring a civil action against the
respondent 29 CFR [Section] 1601 27
4) After 180 days of the filing of the charge, an aggrieved party
may request from the EEOC a Right to Sue notice EEOC issuance
of such notice terminates any further processing of the charge 29
CFR [Section] 1601 28(a)
5) Where the EEOC has found that a violation exists but decides
not to file suit on its own or where a conciliation agreement has
been reached but does not include the aggrieved party in the settle-
ment, or where no violation has been found, then the EEOC issues a
right to sue notice to the individual complainant Such notice ends
the EEOC administrative disposition of the charge 29 CFR [Sec-
tion] 1601 28(b)
PHOENIX NEWSPAPERS
Respondent argues that the EEOC's petition for a pre-
liminary injunction sought full and complete relief onbe-
half of Bartak and Mayne and that the hearing before the
court was comparable to a trial on the merits, rather
than a hearing on a preliminary injunction Nevertheless,
the fact remains that the relief sought in the preliminary
injunction hearing was temporary and did not provide
for a permanent, final disposition of the EEOC charges.
Furthermore, as Respondent apparently acknowledges,
the results of the preliminary injunction proceeding have
no res judicata effect on subsequent public proceedings
instituted by the EEOC or private proceedings-instituted
by Mayne or Bartak Respondent's contention that the
institution of such proceedings would be futile because
the merits of the case are so weak is mere speculation
and such a decision must be left to that fact finder, in
this case the Board's administrative law judge
Based on the foregoing, I am of the view that because
there was no final determination in Equal Employment
Opportunity Commission v Phoenix Newspapers, Inc, No.
CIV 80-404 PHX VAC (D Ariz, Sept 4, 1980), of the
issues before me in the instant case that the doctrine of
collateral estoppel is inapplicable and for this reason the
motion to dismiss is denied 47
In the alternative, I am of the opinion that the doctrine
of collateral estoppel is inapplicable as a matter of law
because Section 10(a) of the National Labor Relations
Act provides that the Board's authority to decide unfair
labor practice cases is exclusive and is not "affected by
any other means of adjustment or prevention that has
been or may be established by agreement, law, or other-
wise." Here, I have found infra, the activity for which
Bartak and Mayne were allegedly discriminated against
is protected by Section 7 and Section 8(a)(1) of the Act
Recently in Frank Briscoe, Inc v NLRB, 637 F 2d 946,
951-953 (3d Cir 1981), the court held that although em-
ployee activity may be protected under Title VII this
does not preclude the same activity from being protected
by Section 7 of the Act. The court reasoned that the leg-
islative history of Title VII and the judicial interpreta-
tion of both Title VII and the Act establishes that the
remedies provided by Title VII were never intended to
be exclusive, and that jurisdiction under Title VII and
the National Labor Relations Act will be concurrent
where, as in the instant case, as I have found infra, the
activity involved is protected by Section 7
b Bartak's probation, reassignment to the night police
beat, and discharge
The General Counsel takes the position that Bartak's
October 5 probation, her extended probation on January
4, her reassignment to the night police beat on January 4,
and her April 4, 1980 discharge were motivated by Re-
spondent's animus toward her on account of either her
union activities, or her role as spokesperson for the
female employees in their effort to improve their work-
ing conditions by ending allegedly discriminatory em-
ployment practices or because she filed EEOC charges
47 In view of this conclusion, I have not decided whether the doctrine
of collateral estoppel is inapplicable here because of a lack of identity be-
tween the parties to the separate proceedings
79
against Respondent on behalf of herself and the other
female employees or for a combination of all these rea-
sons
I am of the opinion that the General Counsel did not
present a prima facie case that Respondent discriminated
against Bartak on account of her union activities,48 but I
am persuaded that the General Counsel has proven that
Respondent placed Bartak on probation, reassigned her
to the night police beat, and ultimately discharged her
because she was the spokesperson for the women em-
ployees in their efforts to improve their working condi-
tions by ending allegedly discriminatory employment
practices and because she filed an EEOC charge on
behalf of herself and the other women and I am also of
the view that by engaging in this conduct Respondent
violated Section 8(a)(1) of the Act. The basis for this
conclusion follows
(1)
In order for Bartak's activity to qualify as concerted
activity "it must appear at the very least that [the con-
duct has] some relation to group action in the interest of
the employees" (Mushroom Transportation Co. v NLRB,
330 F.2d 683, 685 (3d Cir. 1964)) and that the evidence
shows that Bartak was acting "with or on behalf of other
employees, and not solely by and on behalf of [her-
self] " Pacific Electricord Co v NLRB, 361 F.2d 310, 311
(9th Cir 1966) I am persuaded that this was the situa-
tion
The evidence described in detail above establishes that
the women in the Arizona Republic's newsroom desig-
nated Bartak to be their spokesperson in their concerted
effort to persuade management to eliminate certain alleg-
edly discriminatory employment practices Bartak, as the
women's spokesperson, met with Managing Editor Early
and Associate Editor Tully in February 1979 and in the
presence of the women employees, presented the
women's employment grievances Bartak informed man-
agement the women thought their grievances were the
result of the Company's policy of discrimination against
women in favor of men Bartak warned management that
if these alleged discriminatory practices and the women's
employment grievances were not remedied that the
women would go to the Federal Government for assist-
ance Thereafter, during the spring of 1979, three women
employed in the newsroom filed charges of discrimina-
tion with the EEOC against Respondent alleging dis-
crimination as to pay, hiring practices, and promotions
with respect to themselves personally and all the Re-
spondent's female workers as a class Likewise, on
August 7, 1979, Bartak filed a charge of discrimination
with the EEOC against Respondent alleging discrimina-
tion as to pay and promotion against her personally and
all the Respondent's female employees as a class The
filing of Bartak's August 7 EEOC charge of sex discrimi-
48 This conclusion is based on the lack of evidence that Respondent
was antagonistic toward its employees for supporting the Union, the lack
of any significant relationship timewise between Bartak's union activities
and the disciplinary action against her, and the fact that there were other
employees who were just as active as Bartak in their support of the
Union who were not discriminated against
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nation was inextricably intertwined with,,Bartak's role as
the spokesperson of the women in their concerted effort
to improve their working conditions, for, it was as
spokesperson that Bartak, in effect, warned management
that the women, if necessary, would file charges with the
EEOC in order to remedy their common grievances 49
Clearly, the subsequent filing of these charges by Bartak
and the other three women employees, all of which
charged discrimination against all of the women em-
ployed by Respondent, was an extension of the women
employees' initial concerted activity in February 1979
when they grieved to management about their working
conditions and constitutes an integral part of that activi-
ty. It is for the foregoing reasons that I find that by
acting as spokesperson on behalf of the women employ-
ees and thereafter by filing her EEOC discrimination
charge against Respondent on August 7, 1979, that'
Bartak was acting in concert with the other female em-
ployees and thereby was engaging in concerted activity
(2)
I further find that Bartak's concerted activity was pro-
tected under Section 7 of the Act Section 7 guarantees
employees both the rights to organize and to bargain col-
lectively through their chosen representative, and the
right to engage in "other concerted activities" for their
"mutual aid or protection." Eastex, Inc. v. NLRB, 437
U.S. 556, 565 (1978). "Activities relating to conditions of
employment are for `mutual aid or protection "' Frank
Briscoe, Inc. it. NLRB, 637 F 2d 946, 950 (3d Cir 1981).
Thus, when Bartak, acting in concert with her female
coworkers and speaking on their behalf, grieved directly
to management about allegedly discriminatory employ-
ment practices, her conduct was protected by Section 7
of the Act (NLRB v. Tanner Motor Livery, Ltd, 419 F.2d
216 (9th Cir 1969)), so long as it did not violate the prin-
ciple of exclusive representation for collective-bargaining
purposes Emporium Cap well Co. v. Western Addition
Community Organization, 420 U.S. 50 (1975).50 Likewise,
49 I recognize that in speaking to management on behalf of the other
employees Bartak did not expressly refer to the EEOC but used the term
"federal government " It is plain from the record that everyone in-
volved-Bartak , the employees , and management-knew she was refer-
ring to the EROC
so In Emporium Capwell the Supreme Court held that the self-help ef-
forts of minority employees to achieve employment equality was unpro-
tected where an exclusive representative existed and where the activity
of the minority employees undermined the effectiveness of that represen-
tation The employees there repudiated the governing contractual griev-
ance mechanism that had been invoked by their union and sought instead
through picketing and boycotting to compel their employer to bargain
separately with them This conduct was found to have undermined the
principle of exclusive representation embodied in the Act In the instant
case Respondent has failed to establish that the female employees in seek-
ing to have Respondent remedy the allegedly discriminatory employment
practices sought to undermine their Union 's representative status or en-
gaged in conduct reasonably calculated to do this Quite the opposite
Bartak expressly informed management that the women's purpose in
meeting with management was not to negotiate about their employment
grievances , but only to make management aware of those grievances
And, on the subject of wages, Bartak informed management that the
women favored the Union's wage proposal presented during contract ne-
gotiations Likewise, Bartak indicated that the women desired that the
Company institute an affirmative action program that had also been pro-
posed by the Union during negotiations Admittedly, Bartak threatened
that the women would "act" if the Company failed to remedy its alleged
when Bartak, together with the other female employees,
filed discrimination charges against Respondent with
EEOC, which charges were an integral part of the em-
ployees' concerted effort to persuade the employer to
remedy its allegedly discriminatory employment prac-
tices, this activity was protected by Section 7 of the Act.
For employees who act together to improve their terms
and conditions of employment through channels outside
the immediate employee-employer relationship are en-
gaged in conduct that is protected by Section 7 Eastex,
Inc. v. NLRB, supra, 437 US 556, 565-566 In Eastex,
the Supreme Court stated, "it has been held that the
`mutual aid or protection' clause protects employees
from retaliation by their employers when they seek to
improve working conditions through their resort to ad-
ministrative and judicial forums" 437 US., at 565-566
More specifically, the court in Frank Briscoe, Inc v.
NLRB, supra, 637 F.2d 946, 950, held that employees
acting in concert to ensure their rights under Title VII
by filing charges against their employer with the EEOC
are protected from employer reprisal by Section 7 and
Section 8(a)(1) of the Act, so long as this activity does
not violate another important principle of labor law,
namely, the principle of exclusive representation as em-
bodied in Section 9(a) of the Act.5 t In addition, the
court in Briscoe held that the fact that employees' activi-
ty may be protected under Title VII does not preclude it
from enjoying the protection of Section 7 of the Act.
The court reasoned that the legislative history of Title
VII and the judicial interpretation of both Title VII and
the Act establish that the remedies provided by Title VII
were never intended to be exclusive, and that the juris-
diction under Title VII and the Act will sometimes be
concurrent. (Id at 951-953.)
It is for the foregoing reasons that I find Respondent's
female employees, including Bartak, in their effort to end
Respondent's alleged discriminatory employment prac-
tices, were acting for their mutual aid or protection and
thus their activity was protected under Section 7 when
they met with management and, with Bartak acting as
their spokesperson, presented their grievances, and when
thereafter certain women including Bartak filed discrimi-
nation charges with the EEOC against Respondent alleg-
discriminatory practices , but it is plain that this ambiguous statement,
when viewed in the context of Bartak's other warning that the women
would go to the Federal Government for assistance if the Company
failed to act, can only be construed as a threat that the women would file
charges of discrimination with the Government if the Company did not
act on their grievances Finally , when Bartak's statement to Early, "we
want you to go to the bargaining table and represent our point of view,
because we believe we are a special interest group ," is viewed in the con-
text of all Bartak 's comments , it is plain that Bartak was not asking Re-
spondent to represent the women , but was asking that when Respondent
formulated its contract proposals that it take into consideration the
women's contention that they had been the subject of discriminatory em-
ployment practices
51 It is clear that the filing of a charge with the EEOC does not im-
pinge on the exclusivity principle of Sec 9(a) of the Act because that ac-
tivity lies outside the scope of the collective-bargaining relationship See
Alexander v Gardner-Denver Co, 415 U S 36 (1974) See also Barrentine
v Arkansas-Best Freight Systems, 49 USLW 4347 (Apr 6, 1981) (employ-
ees who have submitted wage claims to arbitration under a collective-
bargaining agreement retain a distinctly separate right to prosecute the
same claim in a court action under the Fair Labor Standards Act)
PHOENIX NEWSPAPERS
ing discriminatory practices against other employees as
well as themselves personally.
(3)
I am persuaded that the General Counsel has estab-
lished a prima facie case that Respondent,on October 5,
1979, placed Bartak on probation because she was the
leader and spokesperson for the Arizona Republic's
female employees in their effort to improve their terms
and conditions of employment by having Respondent
remedy alleged sex discrimination and because, in con-
nection with this concerted effort, Bartak filed a charge
of sex discrimination against Respondent with the
EEOC. This conclusion is-based on these considerations
in their totality
Bartak was the leader and acted as the spokesperson for
the female workers employed in the Arizona Republic's
newsroom when they presented their sex discrimination
grievances to Managing Editor Early and Associate Publish-
er Tully. Asa matter of fact, after Bartak finished speak-
ing at the February 9 meeting to Managing Editor Early
other women were asked by management to express
their sentiments but they refused because, as one of the
women told Early, "[Bartak] really covered it "
In view of Bartak's role as the group's spokesperson and
the zealous and aggressive manner in which she presented
the women's employment grievances to management, there
can be no doubt that Managing Editor Early felt she was
the person responsible for the women's grievance activity.
Early was personally offended and upset because of the
allegations of sexual discrimination expressed by Bartak, on
behalf of the women, and believed that Bartak's remarks
were directed at him personally and felt that, Bartak's con-
duct in this respect indicated that she was hostile and unco-
operative toward him. Early informed the supervisors
about his February 9 meeting with Bartak and the other
women and what had taken place at that meeting and
stated to the supervisors that he was personally offended
that the women had brought such allegations against him
and was "very upset" that they were accusing him of sex
discrimination Also, when Bartak in February protested
Respondent's failure to include a female on its 5-year
planning committee for the newsroom and asked wheth-
er this failure indicated there was no future for women
on the newspaper, Early admittedly felt that by engaging
in this conduct she was exhibiting hostility toward man-
agement and an unwillingness to cooperate with manage-
ment I am persuaded that if Early was hostile toward
Bartak for engaging in this kind of conduct that was
closely related to her speaking out to Early on behalf of
all the women in connection with their sex discrimina-
tion grievances that it is logical to infer Early harboured
the same hostile feelings toward her for speaking out on
behalf of the women.
On October 5, 1979, based on his personal evaluation of
Bartak's work performance, Early placed her on probation
and warned her that she would be terminated if her work
did not show "great improvement, " even though less than 5
months earlier Bartak's immediate supervisors, based on
their personal observation of her work performance over a
period of several years, rated her as a better than average
employee in her annual performance evaluation, informed
81
her she was being considered for a vacant assistant city
editor position, and recommended her for a merit pay raise
that was approved by Early. There is no evidence that Bar-
tak's work performance or work habits between her annual
work evaluation and Early's later evaluation had changed
for the worse. As a matter of fact, in June 1979 Bartak was
reassigned to a more prestigious beat, the urban affairs beat,
and as the urban affairs reporter was assigned to cover one
of the newspaper's most -newsworthy and important stories,
the Papago Freeway Election
In placing Bartak on probation, Early ignored the recom-
mendation of Bartak's immediate supervisors Bartak's im-
mediate supervisor for the period that Early evaluated
her was Assistant City Editor Joel Nilsson, who felt that
Bartak's work performance was above average and that
she had done a good job while working for him On Oc-
tober 5, the day Early evaluated Bartak and placed her
on probation, Nilsson informed Early about his high
regard for Bartak's work performance, but Early ignored
Nilsson's opinion, disregarded the prior evaluation of As-
sistant Editor Schatt and City Editor Armstrong, and
placed Bartak on probation under threat of immediate
discharge if she did not show "great improvement "
There is no evidence that Early disagreed with Nilsson's,
Schatt's, or Armstrong's evaluations of employees other
than Bartak.
In personally evaluating Bartak's work performance on
October 5, 1979, rather than have Bartak's immediate su-
pervisors make this evaluation, Early, as I have found
supra, deviated from Respondent's normal procedure in con-
ducting such evaluations. Normally, the employees' imme-
diate supervisor or supervisors, not Early, conducted
these evaluations. Bartak's was the first and last such
evaluation that Early ever conducted
In the case of Bartak's evaluation Early decided to devi-
ate from Respondent's usual procedure only after Bartak
filed her August 7 EEOC charge of sex discrimination As
I have described in detail supra, when Bartak late in
June, at Armstrong's suggestion, agreed to have an ac-
celerated evaluation performed in order to qualify for an-
other pay raise sooner than usual, there was no indica-
tion, given to her by supervision that Early would per-
sonally evaluate•her work, rather, when Bartak spoke to
Armstrong and Nilsson concerning this evaluation, there
was no mention of the fact that Early, rather than Arm-
strong and/or Nilsson, would be performing the evalua-
tion. In fact, Early testified that it was not until late Sep-
tember that Early notified Armstrong that he would be
personally conducting Bartak's evaluation and it was not
until October 4 that Bartak, for the first time, was in-
formed that Early, not Nilsson or Armstrong, would be
conducting the evaluation
Early seized on the first opportunity to discipline Bartak
following his knowledge that she was the leader of and
spokesperson for the women in connection with their sex dis-
crimination grievances Because Bartak's May 18 evalua-
tion was not shown to Early until after Bartak's supervi-
sors had completed it and shown it to Bartak, Early was
faced with a fait accompli and, pursuant to personnel
policy, was forced to approve the evaluation and because
of the better-than-average evaluation accorded Bartak by
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her supervisors was forced to grant her a merit pay raise
that they had recommended But, when Bartak com-
plained that she deserved a higher pay raise, Early
turned down' this request City Editor Armstrong in-
formed Bartak that Early had rejected her request for
more money on the' ground that Early felt that Arm-
strong's evaluation of Bartak's work performance had
not been tough enough However, neither at this time
nor at any time prior to Early's October 5 evaluation of
Bartak's work performance did anyone from manage-
ment indicate to Bartak'directly or indirectly that Early's
disagreement about Bartak's May 18 evaluation was a
substantial one or that Early regarded Bartak's work per-
formance as unsatisfactory • Quite the opposite, Arm-
strong indicated to Bartak that management did not
regard her work as unsatisfactory. Thus, when Arm-
strong informed Bartak that Early had rejected her re-
quest for more money, Armstrong suggested that rather
than wait another 12 months for her annual performance
evaluation that Bartak permit Armstrong to evaluate her
work performance sooner which would enable Bartak to
get her next pay raise sooner than usual. Bartak agreed
to Armstrong's suggestion. The record reveals that su-
pervisors, did not suggest, as Armstrong had done to
Bartak, that an employee's evaluation be given sooner
than usual unless the supervisor felt that the employee
warranted a pay raise (Tr 1234-1235) Likewise, the
record shows that these accelerated performance evalua-
tions done for the purpose, of granting employees pay
raises sooner than usual were usually conducted by the
employees' immediate supervisors, not Early But, as
soon as Early learned from Armstrong in September that
Bartak had requested an accelerated evaluation in an
effort to get a pay raise sooner than usual, Early person-
ally took over Bartak's evaluation in disregard of Re-
spondent' s usual policy and procedure. As a 'result not
only was Bartak refused a pay raise but much to her sur-
prise learned she had been placed on probation and
would be discharged if her work performance did not
show "great improvement." In short, the above circum-
stances show that Early seized the first opportunity to
discipline Bartak following his knowledge that she was
the leader of and spokesperson for the women in connec-
tion with their sex discrimination grievances 52
Early threatened Supervisor Mayne with discharge for de-
fending and complimenting Bartak's work performance in
order to build up a record against Bartak to justify her dis-
cipline In October 1979, shortly after Bartak's probation,
Economic News Editor Mayne, who at the time was su-
pervising Bartak's work on the Papago Freeway Elec-
tion, wrote memos defending and complimenting Bar-
tak's work. As a result Mayne was summoned to Early's
office and in the presence of Employee Relations Direc-
s2 I am persuaded that all the'circumstances leading up to Bartak being
placed on probation by Early, when viewed in their totality, warrant the
inference that Early, in effect, deliberately "ambushed" Bartak As a
matter of fact, this is exactly how Early characterized his conduct
toward Bartak On the witness stand, while thinking out loud about what
might have happened in Bartak's case if she had acted toward him differ-
ently, Early testified that had Bartak shown a different attitude that "I
would not have tried to sandbag her " Thomas Y Crowell, The Diction-
ary of American Slang (2d Sup ed 1975) at 442 defines "sandbag" as "v t
to ambush and beat up a person
tor Case threatened with discharge if he continued to
write memos in defense of or which complimented Bar-
tak's work performance I realize that Early, while stat-
ing that Mayne's memos were interfering with Early's
plans for Bartak also assured Mayne that the purpose of
Bartak's probation was not to discharge her but to im-
prove her work performance However, Early did not
explain why he forbade Mayne and presumably other su-
pervisors from complimenting Bartak's work when pur-
suant to Respondent's newly instituted work perform-
ance evaluation system, under which Bartak was being
disciplined, it was contemplated that supervisors would
write complimentary as well as critical memos so that
the employees knew where they stood with management
As I have found supra, Respondent presented no evi-
dence that Mayne's memos defending and complimenting
Bartak's work were without substance or were fabricated
by Mayne to help Bartak. As a matter of fact, as I have
found supra, Early, in reprimanding Mayne for writing
these memos about Bartak's work performance, in speak-
ing to Mayne, did not base the reprimand on the fact
that he felt Mayne's memos did not constitute an accu-
rate appraisal of the particular work involved Under the
circumstances Early's threat to discipline Mayne for
writing memos complimenting Bartak's work perform-
ance warrants the inference that Early was not interested
in making an honest evaluation of Bartak's work per-
formance but was simply interested in building up a
record to justify disciplining Bartak.
The aforesaid considerations, in their totality, persuade
me that the General Counsel has established a prima
facie case that Managing Editor Early placed Bartak on
probation on October 5 because she was the leader and
spokesperson of the female employees in their effort to
improve their terms and conditions of employment and
because, in connection with this effort, Bartak filed a
charge of discrimination against Respondent with the
EEOC 53
I shall now evaluate the reasons relied on by Manag-
ing Editor Early for placing Bartak on probation for 90
days on October 5, 1979. In view of the fact that these
reasons are embodied in Early's October 5 written ap-
praisal of Bartak's work performance, I shall scrutinize
this appraisal in the light of the whole record
On October 5 Early rated Bartak's "Technical Knowl-
edge & Ability" "marginal" and her "Initiative" and
"Decision Making Ability" "average" whereas Supervi-
sors Schatt and Armstrong in their May 18 evaluation of
her work, less than 5 months earlier, had rated Bartak
"average" in "Technical Knowledge and Ability" and
"above-average" in "Initiative" and "Decision Making
Ability " As I have described in detail supra, Early's
basis for downgrading Bartak's work performance in
each of these categories was Bartak's narrow coverage
58I recognize that other women besides Bartak participated in this
concerted effort to improve the women employees' terms and conditions
of employment and that none of them were disciplined by management
Bartak's activity, however, differed significantly from the other women
inasmuch as she was the group's leader and spokesperson and it is clear
that the nature of her activity was reasonably calculated to lead Early to
believe that she was responsible for the women having raised their sex
discrimination grievances in the first place
PHOENIX NEWSPAPERS
of her beats Bartak was never criticized for her cover-
age prior to this evaluation and for the majority of the
time after her May 18 evaluation the manner in which
Bartak covered her beat had been dictated by her imme-
diate Supervisor Nilsson who, as described supra, noti-
fied Early that Nilsson was to blame, not Bartak, for
Bartak's narrow coverage of the urban affairs beat De-
spite this knowledge, Early failed to change his evalua-
tion of Bartak's work performance effected by his feeling
that Bartak's coverage was too narrow, and failed to ex-
plain this failure
On October 5 Early rated the quantity of Bartak's
work as marginal He explained to Bartak that in Sep-
tember 1979 she had only produced 12 byline stories,
that as a beat reporter she should have produced at least
20 stories and stated, "you have never been a big quanti-
ty producer so I think the September file accurately re-
flects your work out put." In short Early, in effect, ac-
cused Bartak of always having been a marginal producer
Early's contention that Bartak was a marginal producer
during the period prior to October 5 is completely un-
substantiated by either testimonial or documentary evi-
dence As a matter of fact, less than 5 months earlier Su-
pervisors Armstrong and Schatt, in their May 18 evalua-
tion of Bartak's work, rated the quantity of Bartak's pro-
duction as above-average The number of stories a re-
porter publishes is an objective fact, not subject to differ-
ent interpretations Neither Schatt, Armstrong, nor Early
explained why in May 1979 management regarded
Bartak as an above-average producer of stories whereas
in October Early was taking the position that Bartak had
always been a marginal producer of stories The above-
average rating accorded Bartak by Armstrong and
Schatt is not surprising inasmuch as the record reveals
that out of the approximately 26 full-time reporters
working in the Republic's newsroom only 7 produced
more bylined copy during September than Bartak 54
Moreover, Jack Kowalec who, as night city editor, su-
pervised Bartak 2 nights a week for several years while
she worked on the city hall beat testified that "in
volume, [Bartak] was probably close to being on the top
in the production of stories" and that sometimes she
wrote two or three stories for an edition while other re-
porters would be only writing one story and "[that
Bartak] consistently wrote a lot of copy " Clearly,
Early's contention that Bartak was a marginal producer
is a fabrication
On October 5 Early rated the quality of Bartak's work
as marginal whereas less than 5 months before Supervi-
sors Armstrong and Schatt, in their May 18 evaluation,
had rated her above-average in this category In justify-
ing his marginal rating, Early informed Bartak that her
writing was "weak" particularly in the lead paragraphs
and that she was a "very slow writer," much too slow to
be a journeyman reporter and that in Early's opinion she
was not writing any faster now than when she first start-
54 These statistics are even more impressive when it is considered that
during September Bartak , pursuant to instructions from Supervisor Nils-
son, was writing about the issues in depth rather than concentrating on
daily copy It is undisputed that during September Bartak had not as yet
written many stories about the Papago Freeway Election inasmuch as
that election was not scheduled until November
83
ed working for the paper over 6 years ago I recognize
that matters pertaining to a persons writing ability are in
some respects subjective and different persons may
evaluate the writing ability of the same person quite dif-
ferently But, I am not persuaded that this was the case
with Bartak's writing ability I am convinced that if
Bartak was so slow that she did not measure up to the
standards required of a journeyman reporter and had
been this way for several years, let alone for 1 or 2
years, that somewhere along the line supervision would
have picked this up and would not have rated her above-
average in the category that included her writing ability
Although Armstrong and Schatt did note in their May
18 evaluation that Bartak's writing lacked "flair" they
stated her writing was "accurate and complete" and sig-
nificantly failed to mention anything about her alleged
poor lead paragraphs and slowness Nor during the hear-
ing in this case did either Armstrong or Schatt criticize
Bartak's writing for the period prior to October 5 And,
Joel Nilsson, who was Bartak's immediate supervisor
during the period immediately prior to the October 5
evaluation and who impressed me in terms of his de-
meanor as a more credible witness than Early, testified
that during this period the group of reporters who
worked under his supervision were above-average re-
porters and were regarded as the "cream of the crop" of
the reporters employed by the Arizona Republic and
that Bartak's writing was "on a par with most of the
other reporters" whom he supervised and that he rated
her writing as "average " Nilsson's testimony is corrobo-
rated by the testimony of Jack Kowalec who as night
city editor edited Bartak's copy 2 nights a week during
the period she worked on the city hall beat Kowalec,
who impressed me as a credible witness, testified Bartak
could write leads to stories as well as any other reporter,
explaining that "there was often situations where an
editor would get a story and he might have to change
the lead a little bit, regardless of what reporter it was,
[because] leads are in news stories probably the most dif-
ficult things to write, and the most easy to change," but
that in comparison to the other reporters' work that he
edited, Kowalec testified, Bartak's "was as good as any
other competent reporter on the staff" and estimated that
her work was "in about the upper half of the reporters "
Early's unsatisfactory rating for Bartak's performance
factor entitled "Degree of Cooperation" stands in sharp
contrast to the rating of average that Supervisors Arm-
strong and Schatt gave Bartak less than 5 months earlier
Of the several matters that Early listed to support this
evaluation one occurred almost 2-1/2 years prior to the
evaluation;55 others occurred prior to the May 18 eval-
uation and were not even mentioned in that evaluation
or in the interview that accompanied the evaluation;56
ss Bartak 's failure to fill out her timecard properly in June 1978
56 Bartak 's February 1979 criticism of management for its failure to ap-
point a female to the Employer' s 5-year planning committee and her offer
to serve on that committee , Bartak 's delay in March 1979 in submitting a
copy of the tape recording of Associate Publisher Tully' s meeting with
the women reporters to Tully, and Bartak 's failure in 1978 to properly fill
out her timecard
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
others had nothing to do with Bartak's performance as a
worker,57 and others were not substantiated. 58 And,
with respect to what Early in his October 5 evaluation
of Bartak's work characterized as the most serious evi-
dence of Bartak's alleged lack of cooperation-her wast-
ing her time and the time of others by talking to people
in the newsroom despite repeated warnings about this-
there is no evidence that between Bartak's May 18 eval-
uation and her October 5 evaluation that Bartak's con-
duct in this respect had gotten worse or that during this
period she had engaged in such conduct despite the rep-
rimand regarding this matter set forth in her May 18
evaluation.
Based on the foregoing, I find that Early's October 5
evaluation of Bartak's work performance was in virtually
every respect an inaccurate reflection of Bartak's work
performance, that Early knew this, but nonetheless false-
ly downgraded Bartak's performance. When this conclu-
sion is considered in the light of the fact that manage-
ment less than 5 months earlier gave Bartak's work per-
formance a good appraisal and awarded her a merit pay
raise; that in the period between this favorable evaluation
and Early's unsatisfactory evaluation there is no evidence
that Bartak's work performance deteriorated so as to
warrant Early's evaluation; that Bartak's immediate su-
pervisor during the time material regarded Bartak's work
performance as better than satisfactory and so informed
Early; and that stortly after Early's evaluation Early rep-
rimanded a supervisor for complimenting Bartak's work
even though the work warranted the compliments, I am
persuaded that the reasons advanced by Early for plac-
ing Bartak on probation were a sham in that they did not
exist but were used as pretexts by Early to cover up the
real reason for Bartak's probation.
In summation, I have found that the General Counsel
has established a prima facie case that on October 5 Re-
spondent placed Bartak on probation because she was
the leader and spokesperson for the Arizona Republic's
female employees employed in the newsroom in their
effort to improve their terms and conditions of employ-
ment and because, in connection with this concerted
effort, Bartak filed a charge of sex discrimination against
Respondent with the EEOC I have further found that
Managing Editor Early's asserted economic justification
for placing Bartak on probation was pretextual in the
sense that the justification was a sham having been con-
cocted to justify Bartak's probation. Accordingly, be-
cause no "dual motive" for placing Bartak on probation
has been shown, it is evident that she would not have
been placed on probation on October 5, 1979, in the ab-
57 Bartak 's criticism of management for failing to appoint a female em-
ployee to the planning committee , Bartak's refusal to acknowledge re-
ceipt of Early ' s May 31 memo of reprimand concerning the hit list, Bar-
tak's alleged failure to help stop the spread of the hit list rumor , Bartak's
"reluctance" to comply with Tully's request for a copy of the tape re-
cording of his meeting with Bartak and the other women The rating sec-
tion of the evaluation form is entitled "performance factors" and each of
the other factors is directly related to an employee's work performance
58 No evidence was presented that Bartak ever promised management
that she would "help quell the spread of rumours in the news room" or
that if she made such a promise she did not comply with it
sence of her protected concerted activity 59 I therefore
find that by placing Bartak on probation on October 5,
1979, Respondent violated Section 8(a)(1) of the Act
I further find that Respondent, likewise, violated Sec-
tion 8(a)(1) of the Act when on January 4, 1980, it ex-
tended Bartak's probationary period for another 90 days
and as a part and parcel of this extension reassigned her
to the position of night police beat reporter The conclu-
sion, set forth supra, that Bartak's October 5 probation
was motivated by her protected concerted activity in
violation of Section 8(a)(1) of the Act is sufficient to
constitute a prima facie showing that the January 4, 1980
extension of that probation for another 90 days and the
accompanying reassignment to the night police beat was
similarly illegally motivated. The Respondent has failed
to' rebut this prima facie showing by establishing that it
would have still placed Bartak on probation on January
4, 1980, and reassigned her to the night police beat even
in the absence of her protected concerted activity. In this
regard the record reveals that Managing Editor Early's
January 4, 1980 decision to extend Bartak's probation for
another 90 days and to reassign her to the night police
beat was an integral part of and flowed from the pro-
gressive disciplinary system that Early had used earlier
to place Bartak on probation and was simply an exten-
sion of that initial illegal decision
Lastly, I find that by discharging Bartak on April 4,
1980, Respondent violated Section 8(a)(1) of the Act
The conclusion, set forth supra, that Bartak's probation,
the extension of her probation, and the reassignment of
Bartak to the night police beat was motivated by her
protected concerted activity in violation of Section
8(a)(1) of the Act constitutes a prima facie showing that
Bartak's subsequent discharge was similarly illegally mo-
tivated Respondent has failed to establish that it would
still have discharged Bartak even in the absence of her
protected concerted activity. In this regard the record
establishes that Managing Editor Early's decision to dis-
charge Bartak on April 4, 1980, was an integral part of
and flowed from the progressive disciplinary system that
was being used to discipline Bartak and had resulted in
the previous discrimination against Bartak and that the
discharge was simply an extension of the previous illegal
discrimination. Moreover, for the reasons set forth in
detail supra, the record establishes that the ostensible rea-
sons relied on by Early to justify his decision to dis-
59 Once the General Counsel establishes a prima facie case that disci-
pline is discriminatory, the Respondent may still defend its action by
proving there was a good reason for the discipline and that, "it would
have reached the same decision even in the absence of the protected
conduct " Mt Healthy City Board of Education Y Doyle, 429 U S 274, 287
(1977) See also Wright Line, 251 NLRB 1083 (1980) On the other hand
where , as in the instant case , I have found that Respondent's asserted rea-
sons for placing Bartak on probation are pretextual-that is were non-
existent- it eliminates the necessity for the dual-motive analysis , because
no good motive has been shown See NLRB v Charles Batchelder Co,
646 F 2d 33, 39 (2d Cir 1981) (no need for further analysis "since the
question before the Board [in pretext case] was not the extent to which
the company relied on the valid grounds for its action , but whether the
stated grounds were the reals ones" ), Limestone Apparel Corp , 255 NLRB
722 at 722 (1981) ("a finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not in fact relied
upon , thereby leaving intact the inference of wrongful motive established
by the General Counsel")
PHOENIX NEWSPAPERS 85
charge Bartak were a sham in that they did not exist but
were concocted in order to justify the discharge.
c. Mayne's discharge
The complaint alleges that the discharge of Economic
News Editor John Mayne Jr. on January 15, 1980, vio-
lated Section 8(a)(1) of the Act because it was motivated
by his refusal to participate or cooperate in Respondent's
plan to discriminate against employee Bartak because of
her protected concerted activity As I have found supra,
Mayne was a supervisor within the meaning of the Act
who would ordinarily not be afforded the protection of
Section 8(a)(1) of the Act, inasmuch as the Act, as
amended in 1947, excludes supervisors from the protec-
tion of Section 7 affords to "employees " 60 But it is set-
tled that Congress did not intend, in granting employers
this prerogative, to diminish the protection previously
accorded to ordinary employees,61 so in those cases-
where the discharge of a supervisor has the effect of re-
straining or coercing employees in the exercise of their
Section 7 rights, the discharge violates Section 8(a)(1) of
the Act, and the Board may order reinstatement of the
supervisor with backpay Iron Workers Local 207 v.
Perko, 373 U.S. 701, 707 (1963) Under these principles, it
has been repeatedly held that Section 8(a)(1) proscribes
the discharge of a supervisor for refusing to participate
in the unlawful interference with employees ' Section 7
rights62 or for attempting to protect employees from in-
terference or discrimination proscribed by the Act 63
This supervisory immunity protects the rank-and-file em-
ployees by permitting supervisors to respect the employ-
ees' statutory rights without fear of reprisal Thus, where
as here I have found that Respondent disciplined and dis-
charged employee Bartak because of her protective con-
certed activities in violation of Section 8(a)(1) of the Act,
it follows that if Respondent, as alleged in the complaint,
discharged Supervisor Mayne because of his- failure to
participate or cooperate in Respondent 's illegal plan to
discipline and discharge Bartak, Mayne's discharge like-
wise is proscribed by Section 8(a)(1) of the Act I am of
the opinion that this is what in fact took place. The basis
for this opinion follows.
In October 1979, as I have found supra, Managing
Editor Early, shortly after placing Bartak on probation
in violation of Section 8(a)(1), reprimanded Mayne, who
was supervising Bartak's coverage of the Papago Free-
way Election Early reprimanded Mayne for defending
and complimenting Bartak's work performance and in
effect threatened him with discharge if he continued to
compliment Bartak's work I have also found, supra, that
so Sec 2(3) of the Act provides that "[ t]he term 'employee' shall
not include any individual employed as a supervisor
61 See NLRB v Talladega Cotton Factory, 213 F 2d 209, 217 (5th Cir
1954), and the legislative history cited therein
52 E g , Key West Coca- Cola Bottling Co, 140 NLRB 1359 (1963), enf.
denied on other grounds 341 F 2d 524 (5th Cir 1965), Russell Stover Can-
dies, 223 NLRB 592 (1976), enfd 551 F 2d 204 (8th Cir 1977)
63 E g , Buddies Super Markets, 223 NLRB 950 ( 1976) (supervisor ad-
vised employees that respondent was building a case against him because
of his union activity), Vada of Oklahoma, Inc, 216 NLRB 750 (1975) (su-
pervisor informed employee of planned reprisal against him), Donelson
Packing Co, 220 NLRB 1043 (1975) (supervisor' s discharge motivated in
part by his attempt to prevent discriminatory layoff of union adherent)
Early issued this reprimand to Mayne in order to build a
false employment record against Bartak so he could dis-
cipline and discharge her because of her protected con-
certed activity. Despite Early's threat Mayne again came
to Bartak's defense in November 1979 when he notified
Early that Bartak's absence from work had been ap-
proved by him.64 Then, late in December, as described
in detail supra, in response to Early's inquiry connected
with a written reprimand issued to Bartak by City Editor
Armstrong in which Mayne figured, Mayne defended
Bartak against a charge of alleged misconduct and in
effect corroborated Bartak's version of what happened.
Shortly after this, on January 15, 1980, Mayne was dis-
charged The timing of the discharge, coming as it did
soon after Mayne disregarded Early's warning and de-
fended Bartak against an accusation of misconduct, when
viewed in the context of Early's scheme to manufacture
a case against Bartak so as to justify her illegal scheme
An additional reason to suspect the bona fides of Re-
spondent's decision to discharge Mayne is the sharply
conflicting testimony of Armstrong and Early about the
manner in which the decision to discharge Mayne was
reached. Early, in an apparent effort to insulate himself
from, the decision and make it appear as if the decision
was made solely by City Editor Armstrong, testified that
when Armstrong asked him for permission to fire Mayne
that Early, after Armstrong gave his reasons for this re-
quest, simply approved it Armstrong contradicted Early.
He testified that Early was noncommittal when Arm-
strong asked for permission to discharge Mayne and that
a day or two later Early informed Armstrong that he
had discussed the matter with the publisher and the asso-
ciate publisher and that they-Early, the publisher, and
the associate publisher-had decided to accept Arm-
strong's recommendation that Mayne be discharged I
find it difficult to believe that if Mayne's discharge had
taken place in the normal course of business for a legiti-
mate business reason that there would have been such a
sharp conflict among Respondent 's witnesses concerning
such a significant matter pertaining to the discharge
Likewise, Armstrong's refusal to explain to Mayne the
basis for his discharge decision warrants the inference
that the discharge was not for the reason Armstrong
gave to Mayne but was for some other illegal purpose.
When Armstrong told Mayne he was being discharged
because' Armstrong felt he was not "trustworthy,"
Mayne asked Armstrong for an explanation Armstrong,
without explaining, refused to tell Mayne why he felt
Mayne was untrustworthy. Armstrong's refusal warrants
the inference that Armstrong was concealing a different
improper reason for the discharge because Armstrong
had never previously accused Mayne of being un-
trustworthy and the only time Mayne had been accused
of being untrustworthy was more than 7 months earlier
when Early had accused him of starting the rumor that
Armstrong and Schatt were watching several named
union adherents who would be discharged if they were
caught by management engaging in misconduct Early, at
84 Early testified that but for the fact that Mayne had stated he knew
about and in effect had approved Bartak's request for a second week of
vacation , that he would have discharged Bartak
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that time, questioned Mayne's integrity and • trustworthi-
ness and after concluding that Mayne was lying when he
denied responsibility for this rumor, Early went ahead
and issued a written reprimand to Mayne because of this
incident which was placed in his personnel tile. The
matter was then-dropped and management never again
spoke about it to Mayne or questioned his trustworthi-
ness Quite the contrary, Mayne's subsequent annual
evaluation given on July 31 significantly omitted any
criticism of Mayne's trustworthiness and in the category
that dealt with the subject.of whether Mayne was "sup-
portive of management" Mayne was rated "average " I
can only presume that at the time the July 31 evaluation
was filled out that, notwithstanding the May 31 written
reprimand in Mayne's personnel file, management decid-
ed to forgive and forget that incident 65
The circumstances set forth above persuade me that
the General Counsel has established a prima facie case
that Respondent discharged Mayne because of his failure
to participate or cooperate in Early's illegal scheme to
discipline and discharge Bartak because of her protected
concerted activity 66 I shall now examine the reasons ad-
vanced by Respondent to justify Mayne's discharge The
question for decision is whether Mayne would have been
discharged even in the absence of his refusal to cooper-
ate with Early's illegal scheme to discharge employee
Bartak See Wright Line, 251 NLRB 1083 (1980).
As I have described supra, Early testified that the de-
cision to discharge Mayne was really made by Arm-
strong and that Early, in effect, only rubber stamped
Armstrong's recommendation As a result Early did not
testify about the reasons for Mayne's termination; rather,
Armstrong was Respondent's principle witness concern-
ing this subject Armstrong testified that he discharged
Mayne for the following two reasons (1) in May 1979
Mayne lied when he denied responsibility for the rumor
about the so-called hit list, namely, that Armstrong and
Schatt had stated management was watching several
named union adherents with the object of discharging
them, and (2) Mayne was criticizing Armstrong behind
his back while complimenting him to his face
Regarding Armstrong's testimony that Mayne lied
about the hit list rumor, Armstrong significantly did not
testify when he, Armstrong, reached this conclusion and
there is nothing in the record to indicate that he reached
it at the time of Mayne's discharge or shortly before the
discharge Quite the contrary, the record establishes that
management in May 1979 concluded that Mayne lied
when he denied responsibility for the hit list rumor. In
95 Mayne's evaluation of July 31 indicates he was appraised by Assist-
ant City Editor'Schatt on July 31 and that Early approved the appraisal
on the same date The record reveals that normally these evaluations are
shown to Early for his approval prior to showing them to the person
being appraised There is no evidence that in the case of Mayne's July 31
evaluation that the normal procedure was not followed
66 The fact that on October 5 Supervisor Nilsson defended Bartak's
work performance and that on December 11 Supervisor Schatz informed
Early that he felt Early's criticism of one of Bartak's stories was too
harsh and that neither Nilsson nor Schatt was disciplined does not detract
from this conclusion because the instances involving Nilsson and Schatt
were only isolated ones and did not, as in Mayne' s case , constitute a con-
tinuous course of conduct engaged in by a supervisor despite Mayne's
warning that it should cease
May 1979, as described in detail supra, Managing Editor
Early concluded that Mayne lied about this and, in Arm-
strong's presence, Early told Mayne he lacked integrity
and could not be trusted because of his responsibility for
the hit list rumor and, on May 31, presumably with Arm-
strong's knowledge, issued a written reprimand to Mayne
for this and placed it in his personnel file But, as de-
scribed in detail supra, following this written reprimand
the matter was dropped and management never spoke to
him again about it. Quite the opposite, Mayne's July 31
work performance evaluation, in the space allotted for
"overall evaluation and comments," significantly did not
include any criticism based on this incident and did not
otherwise indicate that this incident had adversely effect-
ed management's appraisal of Mayne's work performance
including his capabilities as a supervisor As a matter of
fact the July 31 evaluation, when viewed in its totality,
rates Mayne as above average and as a result at that time
Mayne was granted a substantial merit pay raise Under
the circumstances, including the fact that in terms of de-
meanor Armstrong did not impress me as an honest wit-
ness when he testified about the reasons that led him to
recommend Mayne's discharge, I reject Armstrong's tes-
timony that in deciding to discharge Mayne he relied in
part on the fact that Mayne had lied to management in
denying responsibility for the hit list rumor and conclude
that this is nothing more than a purely pretextual reason
which does more to detract from the lawfulness of the
discharge than support it
Regarding Armstrong's testimony that Mayne was
criticizing him behind his back while complimenting him
to his face, the record shows that from the very start of
his employment with the Arizona Republic in 1977
Mayne was openly critical of the operation of the news-
room and the manner in which Armstrong and Schatt
were operating the city desk During 1978 and 1979 in
criticizing their work performances, Mayne did not do so
to their faces but instead complimented them when he
spoke to them personally and criticized them behind
their backs For example, when speaking to Armstrong
he complimented Armstrong's work performance and
criticized the work performances of Early and Schatt,
but, when talking to the latter he would compliment
them and criticize Armstrong's performance and suggest
he was better qualified to do Armstrong's job. Mayne's
habit of criticizing Armstrong and other members of
management behind their backs was not kept secret for
long As early as 1978 Armstrong learned that although
Mayne complimented Armstrong's work performance to
his face that behind his back Mayne was speaking to the
assistant editors on the city desk in a derogatory manner
about Armstrong's work performance And, by February
1979 Early, Armstrong, and Schatt had gotten together
and "compared notes" about what Mayne was saying
about each of them behind their backs and discovered
that while complimenting them to their faces he was
very critical of them behind their backs and appeared to
be trying to turn them against one another. In particular,
Armstrong at this time learned from Early and Schatt
that Mayne was saying Armstrong was weak and unable
to make a decision, that he did not know what was
PHOENIX NEWSPAPERS
going on at the city desk, that he could not operate the
city desk, and that Mayne could do a better job than
Armstrong as city editor Despite management's knowl-
edge that Mayne was expressing derogatory comments
about the capabilities of Early, Armstrong, and SChatt
behind their backs while complimenting them to their
faces, there is no contention or evidence that Mayne was
ever reprimanded or even spoken to about this kind of
conduct In addition, Mayne's annual evaluation given on
July 31, 1979, did not include any criticism for this con-
duct and that part of the evaluation that dealt with the
question of whether Mayne was "supportive of manage-
ment" rated him as "average" and overall Mayne was
rated as above average and granted a substantial merit
pay raise This, despite the knowledge of Early, Arm-
strong, and Schatt that Mayne was backstabbing them
while complimenting them to their faces Under the cir-
cumstances, including the fact that in terms of demeanor
Armstrong did not impress me as an honest witness
when testifying about the reasons for terminating Mayne,
I reject Armstrong's testimony that in deciding to dis-
charge Mayne he relied on the fact that Mayne was
backstabbing him while complimenting him to his face I
am of the opinion that this is nothing more than a purely
pretextual reason that does more to detract from the law-
fulness of the discharge than support it In so concluding,
I have considered Armstrong's further testimony that on
January 5, 1980, on returning to work after an absence of
2 weeks he learned that Mayne, who had been in charge
of the city desk in his and Schatt's absence'67 had ex-
pressed derogatory remarks about the state of the city
desk and that Mayne himself personally told Armstrong
that he thought the city desk was in a state of confusion,
that it was not adequately organized, that it was missing
stories, reporters were not being kept busy, and was in
general critical of Schatt's ability to operate as Arm-
strong's assistant. It was this, Armstrong's testimony in-
dicates, which triggered Armstrong's decision to dis-
charge Mayne Unexplained, however, is why manage-
ment, in particular Armstrong, overlooked Mayne's iden-
tical conduct throughout 1978 and 1979, did not even
speak to him about it, let alone criticize him for it, and
awarded him an above average evaluation with a merit
pay raise, but then suddenly in January 1980 abruptly
discharged him for offending Armstrong without even
speaking to him about his conduct in an effort to remedy
the problem short of discharge In view of these circum-
stances, and since it is undisputed that management re-
garded Mayne as a first-rate news editor, Armstrong's
explanation about what triggered Mayne's discharge does
not ring true.
Also, I am extremely skeptical that management, as
Early testified, simply in effect rubber stamped Arm-
strong's recommendation that Mayne be discharged.
Thus, as I have found supra, the type of conduct relied
on by Armstrong to justify the decision to discharge
Mayne predated Mayne's discharge by several months
and even though management knew about it ignored it
"From December 25 through January 4, 1980, Mayne operated the
city desk in the absence of Armstrong and Schatt and other assistant edi-
tors who might normally have substituted for them
87
to the extent Mayne was awarded an above average
evaluation and granted a substantial merit pay raise In
addition, the inference that Armstrong did not make the
decision to discharge Mayne and that the reasons for the
discharge were not the ones which Armstrong advanced
at the hearing is bolstered by Armstrong's testimony,
which sharply contradicts Early's, that Early approved
Mayne's discharge only after discussing the matter with
the paper's publisher and associate publisher and gave his
approvel on the basis of that discussion. Significantly, the
record is silent about Early's discussion with top man-
agement or the basis for the decision of Early and the
publisher and associate publisher to go along with Arm-
strong's alleged recommendation This silence is signifi-
cant because the record, as a whole, makes it extremely
implausible that Early or other members of management
in January 1980 would have been unduly concerned
about Mayne's criticism of Armstrong's work perform-
ance, albeit behind his back Early himself was express-
ing similar criticism about Armstrong's work perform-
ance as Mayne, albeit to Armstrong's face as well as to
others. It is undisputed that Early was very dissatisfied
with the manner in which Armstrong was managing the
city desk and, as Early testified, spoke to Armstrong
"over and over again about this," and told him he was
going to give him one last chance and that if he did not
"make it" intended to replace him with someone else
Early further testified that during late 1979 Armstrong
was placed on probation because of the poor way in
which he was performing his duties as city editor (Tr
1134, 1153). Under these circumstances I find it difficult
to believe that management, including Early, would have
been persuaded to discharge Mayne based on Arm-
strong's complaint that Mayne had been critical of his
work performance behind his back The fact that, as I
have found supra, Early long before January 1980 knew
that Mayne had been backstabbing Armstrong and had
done nothing about it, not even speak to Mayne about it,
but instead had approved his above average performance
evaluation and granted him a substantial merit pay raise,
supports this conclusion
Finally, insofar as Respondent's brief suggests that the
decision to discharge Mayne was a part of Respondent's
reorganization of its city desk, which took place 5 days
after Mayne's discharge, it is without support in the
record. Neither Early nor Armstrong testified that this
was the case. If the timing of Mayne's discharge was in
any way related to the implementation of Early's deci-
sion to reorganize the city desk, I would have expected
Early or someone from management to have so testified
Moreover, throughout this proceeding Respondent has
taken the position that Mayne's discharge was unrelated
to his work performance as a supervisor and Early failed
to mention Mayne's name when he testified about the
several assistant editors on the city desk whose work dis-
satisfied him, nor is there evidence that the position oc-
cupied by Mayne, economic news editor, was included
as a part of reorganization.
On the basis of the foregoing, I am of the view Re-
spondent has failed to meet its burden of overcoming the
General Counsel's prima facie case by establishing that
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mayne would have been discharged, even absent his re-
fusal to participate or cooperate in Respondent's plan to
discriminate against employee Bartak because of her pro-
tected concerted activity I therefore find that by dis-
charging Mayne Respondent interfered with, coerced,
and restrained its employees in the exercise of the rights
guaranteed them by the Act, and for this reason Mayne's
discharge violated Section 8(a)(1) of the Act
B Respondent's Lawsuit
1. The evidence
In April 1979 after receiving a phone call on an exten-
sion assigned to her in the city hall pressroom, Bartak re-
mained on the line after the caller hung up and heard her
phone conversation being played back Thereafter, sever-
al times during the summer of 1979 persons who phoned
her at her newsroom extension informed her they heard
distinct changes in the tone level of her voice during
their conversations and once or twice callers asked
whether she was tape recording the conversation
Bartak, who was not tape recording these phone calls
and had nothing attached to her phone to account for
the change in tone level, reported these comments to the
Employer's switchboard operator who informed Bartak
that nothing appeared to be wrong with her phone but
they would report the matter to the telephone company
Bartak also mentioned what had been happening to her
phone to Mayne, the newspaper's economic news editor.
During the first week of December 1979 Mayne, while
walking past the paper's telephone switchroom, which is
situated just outside the newsroom, noticed its door was
open.68 Mayne went into the room and observed there
was a cylindrical device about 1-1/2 inches in length at-
tached to the telephone panel. The device was attached
by wires where the numbers 8169 were written It was
the only device of its kind in the telephone switchroom.
Line 8169 was Bartak's extension, so Mayne summoned
Bartak and showed her what he had discovered
Prior to the discovery of the cylindrical device at-
tached to Bartak's extension she had informed Willard
Hatch, a representative of the Union's International
union who was assigned to service the Union, that she
thought her phone conversations were being tape record-
ed. In support of this Bartak explained to Hatch about
the conversation which was played back, the comments
of the people that the tone level on her phone line
changed, and that at least one caller asked whether their
phone conversation was being tape recorded When
Bartak discovered the cylindrical device in the switch-
room attached to her extension she promptly informed
Hatch who suggested that they have the device photo-
graphed Bartak arranged for the president of the Union,
Jack Swanson, to photograph the device. In the mean-
time Hatch, who lives in Detroit, Michigan, had gone
home for the holidays and while at home phoned the
International union's general counsel, in Washington,
D C, and asked for advice about what to do about what
Hatch said appeared to be phone tap on Bartak's phone.
"The door to the swttchroom usually was closed but not locked
There was no lock on the door to the switchroom
The International union's general counsel advised him
that when he returned after the holidays to Phoneix to
report the matter to the Federal Bureau of Investigation
On approximately January 11, 1980, Bartak and Hatch
visited the FBI's office in Phoenix and told an agent
about the cylindrical device attached to Bartak's phone
and about her previous unusual experiecnes with her
phone Bartak stated she was asking the FBI's advice be-
cause she was concerned that there might be some kind
of listening device on her extension The FBI agent sug-
gested that she bring him the photographs that Swanson
had taken. A few days later Bartak delivered copies of
the photographs to the office of the FBI agent
On January 14, 1980, Bartak observed that the cylin-
drical device was still attached to her extension phone,
but that there were two persons at work in the switch-
room The next day she discovered that the device had
been removed although two short wires that had been at-
tached to it remained Bartak reported this to both Hatch
and the FBI agent
Late in January 1980 Hatch was informed by a lawyer
assigned by the EEOC to investigate Bartak's charges of
discrimination that the EEOC had shown the pictures of
the cylindrical device attached to Bartak's phone to an
electronic's expert who stated that it could be used as a
"bugging" device or to tap a phone Hatch asked for the
name of this person, explaining to the EEOC lawyer that
he wanted to talk to him. Hatch's request was denied on
the grounds that the EEOC could not identify the expert
because he worked off the record for that agency and
was not available for public proceedings. Shortly thereaf-
ter, Hatch contacted several officials associated with the
International union in an effort to locate a wire tap
expert, but it was not until May 1980 that he was able to
locate one
On February 4 the FBI agent whom Hatch and Bartak
had spoken to about the device attached to Bartak's
phone informed Bartak that the FBI was not authorized
to proceed any further with her wiretapping allegation
He stated, however, that he had spoken to someone em-
ployed by the telephone company who had informed
him that the cylindrical device in the photograph that
Bartak had given him was a "zenor diode" which was
involved in the electrical functioning of the telephone,
that it had many electrical functions, that the device
itself was not a wiretap or bugging device, but that be-
cause of its electrical capabilities it could be used for the
electrical flow on her extension Bartak testified she re-
layed the FBI agent's remarks to Union Representative
Hatch
On February 20, 1980, Hatch, on behalf of the Union,
accompanied by recently elected Union President John
Lavelle, filed the initial charge in Case' 28-CA-5723,
which charged Respondent with violating Section
8(a)(1), (3), and (5) of the Act and in that section of the
charge form which contains the "[b]asis of the charge
(Be specific as to facts, names, addresses, plants involved,
dates, places, etc )" alleged as follows:
Beginning August 20, 1979, and continuing to date,
the employer has failed and refused to bargain in
good faith with the Phoenix Newspaper Guild in
PHOENIX NEWSPAPERS 89
violation of Sec 8(a)(5), has discharged and made
inferior work assignments to employees because of
their support for the union in violation of Sec
8(a)(3), and has engaged in unlawful surveillance and
has intimidated and harassed the employees because
they have engaged in protected and concerted activities
in violation of Sec. 8(a)(1). The Employer has also
placed the Union supporters on probation, has
denied Union requests for information necessary to
carry out its collective bargaining responsibilities,
and has unilaterally subcontracted unit work with-
out bargaining with the Union. [Emphasis added ]
At the same time Hatch filed the aforesaid charge with
the Board's Regional Director, he submitted a letter to
the Regional Director that listed 14 kinds of illegal con-
duct that the Union, in support of its charge, intended to
prove that the Respondent was guilty of and as a basis of
the Union's request for an injunction under Section 100)
of the Act This letter in pertinent part states-
The attached unfair labor practices against [Re-
spondent] include, but are not limited to, the fol-
lowing.
-Tapping of the telephone of at least one union of-
ficer We have photographic and eye witness evi-
dence of this and have reported it to the FBI and
the EEOC.
-Indicating that certain union leaders and activists
are on a list of employees to be purged because
they are part of an "undesirable element "
The Union at the time it filed this charge scheduled a
meeting of its members employed by Respondent for the
purpose of advising them about the charge and to discuss
the charge with the members in detail The membership
was notified about this meeting by pamphlet entitled
UPDATE distributed by the Union on February 22,
1980, to its approximately 160 members who were em-
ployed by Respondent The UPDATE was posted on
the Union's bulletin boards on Respondent's premises,
placed in the mailboxes of the members at work and for
those who worked in the suburban news bureaus was
mailed to their homes The UPDATE read as follows
UNFAIR LABOR PRACTICE CHARGES
On Wednesday , Feb 20, 1980, the Phoenix
Newspaper Guild filed unfair labor practices with
the National Labor Relations Board against Phoenix
Newspapers , Inc, publishers of The Arizona Re-
public, The Phoenix Gazette and the Weekly Ga-
zette
We filed 14 specific charges, but have not limited
ourselves only to those charges, since we continual-
ly are gathering evidence that could indicate the
filing of more charges at a later date
-Harassment of union adherents with false evi-
dence
-The existence of a "hit list" of an "undesireable
element" to be purged from the R&G
-An outright refusal to bargain with PNG
-A schedule of "phantom" minimum salaries
substantially higher than the minimums instituted
unilaterally by the company in the posted condi-
tions
-Placing long-time employees-coincidentally
union supporters-on probation, and the refusal of
the company to deal with union representatives on
the matter
There are other charges. The above represents
highlights, but none of the charges filed was
brought lightly, and we consider all as serious viola-
tions of our rights.
To discuss these charges in more detail with our
membership, we have scheduled a meeting for 11
a m , Sunday, March 2, at the International Hawai-
ian Inn on North Central Avenue.
If you feel the company has violated your rights
in any area, please discuss it further with a union
representative.
New Times published in its February 20-26, 1980 edi-
tion of the New Times Weekly,69 which was distributed
on February 20, an article dealing with the Union's in-
tention to file the aforesaid unfair labor practice charge
The article, which was entitled "WIRETAPPING
CHARGED AGAINST R & G," read as follows.
Wiretapping allegations apparently will be an
issue in unfair labor charges expected to be filed
this week against The Arizona Republic and the
Phoenix Gazette
Sources said the Phoenix Newspaper Guild will
contend, in a complaint to the National Labor Rela-
tions Board, that the two newspapers eavesdropped
on telephones of guild activities and officers The
accusation will be included, the sources said, in a
broader charge that the two newspapers harrassed
guild members with frequent and punitive reassign-
ments.
Wiretapping charges may also figure in pay dis-
crimination suits against the Republic and the Ga-
zette which are pending before the U S. Equal Em-
ployment Opportunity Commission Women report-
ers who contend they were paid less than male
counterparts have added the allegation that their
telephones were tapped The newspapers reportedly
have denied the allegation
The two Pulliam chain newspapers have stood
off the American Newspaper Guild local for two
years despite two certification elections by editorial
employees The management broke off formal nego-
Among the violations we have alleged are-
-Wiretapping of a union officer's telephone
-Transfer of union officers and negotiators to
undesireable shifts and work assignments
"The New Times Weekly is a weekly publication distributed free of
charge on newsstands throughout the Phoenix metropolitan area During
the time material here its circulation was 55,000 and it ranked second in
the Phoenix metropolitan area to Respondent's newspapers that during
this period had a combined circulation of 345,000
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tiations with the guild a year ago and imposed a
unilateral work arrangement that withdrew several
benefits. Sources said the guild will charge the
newspapers with bad faith bargaining
A telephone system installed in the Repub-
lic/Gazette building last year enables operators to
monitor and tape record incoming calls The news-
paper said the monitoring allows crank calls to be
recorded for the police
It was learned that the wiretapping allegation
was also reported to the Federal Bureau of Investi-
gation Sources said the FBI refused to investigate.
This article was published in the normal course of the
New Times Weekly's business as a part of the coverage
it normally gives to the media through its media beat re-
porter.
During the normal course of business the Board agent
assigned by the Regional Office to investigate an unfair
labor practice charge communicates with the charged
party and informs that party of the evidence that the
charging party is relying on to support the allegations
contained in the unfair labor practice charge Here, be-
tween February 26 and March 15, 1980, the Board agent
assigned to investigate the Union's charge in Case 28-
CA-5723 informed Respondent, through its attorneys,
that the allegations contained in the charge were based
in part on evidence of a small cylindrical device attached
to a newsroom employee's phone line which could trig-
ger the operation of a tape recorder at the main switch-
board and that the Union was also contending that there
was a list of union supporters maintained by the Re-
spondent who the Respondent had stated were going to
be purged from its employment
Following publication of the February 20 news story
in the New Times Weekly and the distribution of the
February 22 UPDATE by the Union, several reporters
who read the UPDATE and/or the news article spoke
to management and indicated they were concerned about
the allegation that Respondent was wiretapping employ-
ees' telephones because if that was true it could jeopard-
ize the reporters' current sources of confidential informa-
tion and have a chilling effect on the reporters' efforts to
cultivate these sources in the future
On February 27, 1980, Respondent, through James
Henderson, the lawyer who normally defends it in libel
lawsuits, wrote the New Times that its February 20 news
story was defamatory insofar as it stated. "Wiretapping
charged against R & G", "Wiretapping allegations appar-
ently will be an issue in unfair labor practice charges ex-
pected to be filed this week against [R & G]"; "-the
[Union] will contend, in a complaint to the NLRB, that
the two newspapers eavesdropped on telephones of guild
activists and officers"; "Women reporters who contend
they were paid less than male counterparts, have added
the allegation that their telephones were tapped"; "The
two Pulliam chain newspapers have stood off the
[Union] for 2 years despite two certification elections by
editorial employees", and "The management broke off
formal negotiations with the [Union] a year ago and im-
posed a unilateral work arrangement that withdrew sev-
eral benefits." Henderson demanded that the New Times
Weekly publish a retraction of these libelous statements
within the required statutory period. In reply the New
Times Weekly, in its March 5-11 edition, distributed on
March 5 published a "CLARIFICATION" of its Febru-
ary 20 story in which it stated that on February 20 the
Union had in fact filed charges with the NLRB charging
Respondent with "unlawful surveillance" and "of harass-
ing and intimidating employees" and quoted in haec
verba the language contained in the charge
On March 7, 1980, Respondent, through Daniel
Gruender Jr., the lawyer whose firm normally represents
Respondent in matters involving labor law and related
matters, wrote the Union that its February 22 UPDATE
gave an inaccurate and malicious account of the unfair
labor practice charge that was filed with the NLRB and
asserted that the UPDATE was false and defamatory in-
sofar as it stated that the charges with the Board alleged
"wiretapping of union officer's telephone", "harassment
of union adherents with false evidence", "the existence
of a `hit list' of an `undesireable element' to be purged
from the R & G"; and "a schedule of `phantom' mini-
mum salaries substantially higher than minimums institut-
ed unilaterally by the company in the posted conditions."
Gruender demanded that the Union publish a retraction
of the aforesaid libelous statements and that the retrac-
tion be posted and published in the same manner as the
original UPDATE The Union did not answer
Gruender's letter and otherwise took no action in re-
sponse
On March 25, 1980, the allegation of the unlawful sur-
veillance contained in the Union's charge in Case 28-
CA-5723 was withdrawn presumably when the Union
was notified by the Board's Regional Office that there
was insufficient evidence to warrant further proceedings
on that allegation.
On March 28, 1980, the complaint here issued in Case
28-CA-5723 alleging that Respondent violated Section
8(a)(1), (3), and (5) of the Act by refusing to provide the
Union with information related to collective bargaining,
by discriminatorily placing Bartak on probation and reas-
signing her to a more onerous and less desirable job, and
by unlawfully terminating Mayne
On April 1, 1980, Respondent, by an attorney associat-
ed with Attorney Gruender's firm, filed a civil action in
the Superior Court of the State of Arizona, in and for
the county of Mariciopa, Case No. C408065 , naming as
defendants the Union, its officers all of whom were em-
ployees of Respondent, and Union Representative Hatch
(collectively called union defendants), and the New
Times, its publisher and editors (collectively called New
Times defendants), and certain John and Jane Does.70
The theory of the lawsuit as set forth in the complaint
was grounded on libel, conspiracy, and tortious interfer-
ence In the complaint's first claim for relief, Respondent
alleged that the New Times defendants had libeled it by
70 Reporter Randy Collier testified that on April 1 when employee
Bartak discovered that Respondent had filed the lawsuit she stated she
was happy the suit had been filed and that Managing Editor Early was a
"bastard" and she would be happy to see him in court and would get him
in court Bartak, who specifically denied making this remark, impressed
me as the more credible witness I therefore have credited her denial
PHOENIX NEWSPAPERS 91
publishing the February 20 New Times Weekly article
insofar as "[t]he article published was a false and mali-
cious account of a charge which was subsequently filed
with the National Labor Relations Board [and] the
publication of the article was intended to convey and did
convey to the community at large the impression that
plaintiff has engaged in illegal wiretapping " In the
second claim for relief, Respondent alleged that the
union defendants had libeled Respondent by publishing
the February 22 UPDATE because "[t]he article
was a false and malicious account of an unfair labor
practice charge filed by [the Union] . [and] contained
false and defamatory matter including but not limited to
charges of wiretapping of a union officer's telephone and
the existence of a `hit list' of an `undesirable element' to
be purged from plaintiff " In the third claim for relief,
Respondent alleged that certain John and Jane Does had
communicated the libelous information published by
New Times and/or prepared or assisted in the prepara-
tion of the defamatory February 20 article. In the com-
plaint's fourth claim for relief Respondent alleged that
New Times defendants and the Jane and John Does
"conspired to obtain and publish without plaintiffs con-
sent confidential memoranda which were the property of
the plaintiff' and that all the defendants to the lawsuit
had "conspired to libel and did libel [Respondent] " Fi-
nally, in the fifth claim for relief, Respondent alleged
that all the defendants had tortiously interfered with the
contractual relationship between Respondent and its em-
ployees, customers, and advertisers, by maliciously and
deliberately conspiring to defame and discredit Respond-
ent.7 1 In each of the aforesaid claims for relief Respond-
ent sought general damages in the amount to be proven
at trial, exemplary or punitive damages of at least $10
million, and the costs of the suit
The person responsible for the decision to file Re-
spondent's lawsuit against the Union and the New Times
defendants was its publisher, Tully. He testified that but
for the reference to the wiretapping in the New Times
Weekly article and in the Union's UPDATE, he would
not have decided to file the lawsuit and further testified
that the reason he decided to file the lawsuit was as fol-
lows
because the question of wiretapping impinges
upon the very essence of what a newspaper is . . .
all about, its credibility, and I felt that it had to be
responded to When we demanded the retraction
and the retraction was not given'72 that really left
me no course but to pursue the lawsuit, because
credibility to us is the essence of what the newspa-
per's all about Our credibility is to us like machm-
7 i After argument the court , in response to a motion filed by the New
Times, dismissed the fifth claim for relief involving tortious interference
and Respondent , on July 9 , 1980, deleted this claim from its complaint
pursuant to an amendment
72 Tully testified that the reason the CLARIFICATION published by
the New Times Weekly in response to Respondent 's demand for a retrac-
tion was not satisfactory was that the New Times Weekly did not specifi-
cally state that the Respondent had not been charged with wiretapping
Tully explained that in his mind there was a difference between unlawful
surveillance under the Act as alleged in the charge filed by the Union
and a felony called wiretapping
ery would be to a manufacturer If we had no
credibility, we really have nothing to sell as a news-
paper a great deal of the price that a newspa-
per is sold for is called good will You can not find
it in the machinery . . [or] in the receivables [or]
in the assets It's good will. And good will is our
credibility You can not get witnesses [referring to
confidential sources], you can't get annonymous
sources to even talk to you if there is a question of
your word. If your word is not any good in our
business nothing is any good [Tr 1810-1811 ]
Tully, in connection with his reference to the newspa-
pers' good will, testified that the mention of the wiretap-
ping charge in the UPDATE and the New Times
Weekly article damaged Respondent's reputation in the
community thereby effecting its papers' good will.
On April 28, 1980, the New Times defendant filed and
served on Respondent in the lawsuit a motion to dismiss
and in the alternative for summary judgment and at-
tached a copy of the letter submitted by Union Repre-
sentative Hatch on February 20 to the Board which was
submitted simultaneous with his filing of the charge in
Case 28-CA-5723
On April 28, 1980, Respondent, in the lawsuit, noticed
the depositions of union defendants Hatch, Lavelle, and
Bartak and also of nonparty Guiterrez. These depositions
were continued by court order until the court had an op-
portunity to hear and decide certain motions filed by the
defendants These motions were denied and the four
depositions were rescheduled and were eventually held
in August An examination of the depositions of Hatch,
Lavelle, and Bartak reveal they were questioned in detail
about the several assertions expressed in Hatch's Febru-
ary 20 letter At the start of these depositions the lawyer
for the New Times' defendants objected to the taking of
the depositions on the ground that Respondent was using
the depositions as a means of obtaining the discovery of
information relevant to proceedings currently pending
before the National Labor Relations Board. The lawyer
for the union defendants who were being deposed re-
frained from objecting on this ground but stated that if
he thought counsel for Respondent was going beyond
the confines of the libel lawsuit or was attempting to liti-
gate matters more properly before the Board he would
in effect instruct the witness not to answer Thereafter,
the lawyer for the union defendants felt no need to in-
struct his witnesses not to answer or otherwise object to
Respondent's questioning
On May 12, 1980, the Board's complaint issued in Case
28-CA-5795 alleging in substance that Respondent had
unlawfully fired Bartak.
In June 1980, in connection with the EEOC litigation
involving Mayne and Bartak pending in the United
States district court,73 Respondent engaged in extensive
discovery and took extensive depositions from Bartak,
Mayne, and Supervisor Nilsson and, at the same time, se-
cured copies of the affidavits Bartak had furnished to the
11 The EEOC filed its suit for a temporary injunction against Respond-
ent on May 28 and the trial was held late in June 1980
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board in the Board's investigation of the unfair labor
practice charges
On May 29, 1980, the Union filed its charges in Case
28-CA-5904 alleging, among other things, that Respond-
ent had violated the Act by filing its lawsuit against the
union defendants, by engaging in electronic surveillance
of employees' union activities, by refusing to meet and
bargain with the Union, and by unilaterally changing em-
ployees' wages without notice to the Union.
On June 5, 1980, New Times filed its charge in Case
28-CA-5904-2 alleging that Respondent violated the Act
by filing the lawsuit against New Times
On August 23, 1980, Respondent, in the libel action,
issued a "subpoena duces tecum for deposition" directing
Jack Swanson, one of the defendants who was a former
president of the Union, to be deposed on August 26,
1980, and to produce anything in his possession or con-
trol pertaining to the Union from the time of his election
as president to the present Swanson complied with the
subpoena
Respondent's lawsuit was still pending at the time of
the hearing in the instant case.
2. Discussion and ultimate findings
The General Counsel argues Respondent violated Sec-
tion 8 (a)(1) of the Act by filing its lawsuit against the
union defendants because it filed the suit in order to ac-
complish one or more illegal purposes Specifically, in
order to retaliate against them because of their union ac-
tivities , or for filing the unfair labor practice charge in
Case 28 -CA-5723, or for publicizing the contents of that
charge, or in order to discover the General Counsel's
evidence supporting the complaints issued in Cases 28-
CA-5904 and 28-CA -5904-2. In the alternative, the
General Counsel contends that even absent evidence of
illegal motivation ' the lawsuit against the union defend-
ants violates Section 8(a)(1) because it reasonably tends
to interfere with the employees ' exercise of their Section
7 right of access to the remedial processes of the Board
in that the Union's publication to its membership of its
charge in Case 28 -CA-5723 "is an essential aspect of ef-
fective resort to Board processes." Regarding the portion
of the lawsuit involving the New Times defendants, the
General Counsel and New Times argue that the filing of
the lawsuit violated Section 8 (a)(1) because it was filed
for the improper purpose of retaliating against the New
Times defendants for assisting the Union in publicizing
the Union's filing of the unfair labor practice charge filed
with the Board in Case 28 -CA-5723 and the contents of
that charge. In the alternative they argue that the filing
of the lawsuit against the New Times defendants violated
Section 8 (a)(1) regardless of Respondent ' s motivation be-
cause it reasonably tended to interfere with the statutory
right of the public, including Respondent 's employees, to
be informed through the media about the filing of the
unfair labor practice charge filed with the Board in Case
28-CA-5723 and its contents.
The Board , with the approval of the courts , has long
held that despite the coercive effect on the statutory
rights of employees , unions, or employers caused by the
filing of a lawsuit that, as a matter of policy, the Board
"should accommodate its enforcement of the Act to the
right of all persons to litigate their claims in court, rather
than condemn the exercise of such rights as an unfair
labor practice " Clyde Taylor Co, 127 NLRB 103, 109
(1960) It is where the filing of a lawsuit not only, tends
to foreseeably discourage employees or unions or em-
ployers from exercising their statutory rights, but was
brought for the purpose of accomplishing an unlawful
objective that the Board concludes that the filing of a
lawsuit violates the Act. See generally Associated General
Contractors of North Dakota v. NLRB, 537 F.2d 556 (8th
Cir 1981), enfg. 245 NLRB 328 (1979), and United
Credit Bureau of America v. NLRB, 643 F.2d 1017 (4th
Cir. 1981), enfg 242 NLRB 921 (1979).
As I have described in detail supra, Respondent's pub-
lisher, Tully, testified that he decided to file the lawsuit
here because he believed that the publication of the Feb-
ruary 22, 1980 UPDATE by the Union and the February
20, 1980 article by the New Times Weekly, insofar as
they stated that Respondent had been charged by the
Union with wiretapping, impunged the credibility of Re-
spondent's newspapers in the eyes of the community and
also had the potential effect of drying up Respondent's
confidential sources of news. Tully further testified that
these circumstances, coupled with the fact that the unfair
labor practice charge referred to in the UPDATE and
the newspaper article did not charge Respondent with
wiretapping, prompted him to institute the lawsuit
against the Union and New Times defendants Tully pre-
sented this testimony in a sincere and convincing manner
and in terms of his demeanor impressed me as being an
honest witness This, plus the lack of evidence in the
record as a whole to impung Tully's testimony, has per-
suaded me that Tully filed the lawsuit in good faith,
without an intent to retaliate against any of the defend-
ants because they engaged in activity protected by the
Act I am persuaded that he filed the lawsuit because he
sincerely felt concerned about the impact of the publicity
generated by the UPDATE and the New Times Weekly
article on the reputations of the Arizona Republic and
Phoenix Gazette in the community and on their sources
of confidential information
In crediting Tully's testimony concerning his reasons
for filing the lawsuit, I have considered the following
Tully filed the suit even though the New Times Weekly
clarified the disputed article, Tully filed the suit even
though, based on what a Board agent told Respondent,
he should have realized that the Union was taking the
position that the disputed wiretapping and hit list allega-
tions were included in the Union's charge; even though
Tully testified the lawsuit would not have been filed, but
for the reference in the UPDATE and New Times
Weekly article to the wiretapping, the suit included mat-
ters other than the wiretapping Nevertheless, I have not
discounted Tully's testimony about the reasons that
prompted him to file the lawsuit because his explanation,
supra, for not being satisfied with the "clarification" was
not unreasonable. Nor is it unreasonable that once Re-
spondent decided to file the lawsuit because of the refer-
ence to the wiretapping charge in the Union's UPDATE
that it should then include other matters contained in the
UPDATE that it felt were harmful to Respondent's
PHOENIX NEWSPAPERS 93
image in the community and that like the wiretapping
reference were not included in the Union's charge
Lastly, the fact that Tully knew that the Union was
taking the position that its charge contained the disputed
allegations does not change the fact that the charge did
not contain the disputed allegations
In evaluating Respondent's motivation for filing its
lawsuit against the Union and New Times defendants, I
have taken into account the lack of direct evidence, i e ,
statements' made by management, to support the claim
that the lawsuit was filed for a purpose proscribed by the
Act I have also carefully considered the circumstantial
evidence pointed out by the General Counsel and New
Times which they urge warrants an inference of illegal
motivation They urge that the timing of the filing of the
lawsuit immediately after the issuance of the complaint
in Case 28-CA-5723, the use of Respondent's labor law
lawyer rather than its libel lawyer, the civil suit's lack of
merit, the abuse of the dscovery process, and the lack of
monetary damage, when taken together warrant the in-
ference that Respondent filed the lawsuit against the
Union and New Times defendants for an object or ob-
jects proscribed by the Act I disagree.
The lawsuit was promptly filed after the expiration of
the time for the Union's retraction had passed, as deter-
mined by state law
Respondent employed the law firm which handled its
labor law matters rather than the lawyer who normally
represented it as a defendant in libel actions, only after it
learned that the latter would be too busy dealing with
other matters to represent it Under these circumstances,
Respondent's desire to use the law firm which usually
represents it in matters involving labor law is under-
standable especially because a number of labor law ques-
tions are involved in the lawsuit
The evidence is insufficient to establish that Respond-
ent accelerated the discovery procedure or noticed depo-
sitions other than within the normal statutory deadline
for discovery 74 And, although Respondent deposed
three of the union defendants about a broad range of
manners, all of the matters were potentially relevant to
the civil lawsuit because the questioning pertained to al-
legations contained in Union Representative Hatch's
letter of February 20 which the Union was contending
was a part of the Union's unfair labor practice charge
filed with the Board The union defendants' lawyer ap-
parently recognized the relevancy of this line of ques-
tioning because, while at the outset of the depositions he
indicated he would object to questions which went
beyond the issues posed by the civil action, he did not
thereafter object to the questions posed Nor does the
seemingly overly broad subpoena issued to former Union
President Swanson warrant an inference of improper mo-
tivation In the circumstances of this case, I am not per-
suaded that the breath of this subpoena was no more
than the result of the normal overzealousness of a consci-
entious lawyer in litigating a case
Finally, assuming arguendo, that Respondent's lawsuit
is found to be without merit, it is not relevant to this
proceeding because the issue before me is not the merits
of the lawsuit but whether Respondent had a reasonable
basis for filing it or, stated another way, whether the suit
was filed in good faith For the reasons set forth supra,
Tully's testimony persuades me that the lawsuit was filed
in good faith and there is insufficient evidence in the
record as a whole which warrants the rejection of
Tully's testimony
Based on the foregoing I find the evidence is insuffi-
cient to establish that Respondent filed its lawsuit against
the union defendants and the New Times defendants
without a reasonable basis and for a purpose proscribed
by the Act, rather, it establishes that Respondent filed
the lawsuit in good faith because of its concern about the
impact of the publicity generated by the UPDATE and
New Times Weekly's news article on the credibility of
Respondent's newspapers and on the ability of the news-
papers to maintain their sources of confidential informa-
tion
The General Counsel argues that even absent evidence
of illegal motivation Respondent violated the Act by
filing the lawsuit against the union defendants because
the foreseeable consequences of the suit was to interfere
with employees' exercise of their Section 7 right of
access to the remedial processes of the Board in that the
Union's announcement to its membership contained in
the UPDATE about the contents of the charge it had
filed with the Board " is an essential aspect of effective
resort to Board processes " I disagree Respondent's law-
suit insofar as it was directed against the publication of
the Union's UPDATE only involved that part of the
UPDATE which described the allegations which were
the basis for the Union's charge filed with the Board
The publication by a union of allegations included in a
charge already on file with the Board does not in my
view, as contended by the General Counsel, constitute
"an essential aspect of effective resort to Board processes
for vindication of statutory rights " The General Coun-
sel's contention that the "foreseeable consequences of
Respondent's state court action is to cut off the vital
communications between and among the charging party,
those who might support the charge, and the Board
agents involved in the processing of the charge," is
simply not true insofar as it suggests that the filing of the
lawsuit was calculated to interfere with communication
between the Union and the Board, thereby precluding an
effective investigation of the charge The sole foreseeable
effect of this lawsuit would be to make the Union cau-
tious in the future about publicizing to its members or
the public in general the evidence it intended to rely on
in support of charges- it had already filed with the
Board 75 In any event, assuming the General Counsel is
correct and that the lawsuit here was directed against the
kind of activity which is an essential aspect of a union's
effective resort to the Board's processes for the vindica-
tion of employees' statutory rights or was otherwise pro-
14 The failure of Respondent to depose, as of the time of the instant
hearing, any of the New Times defendants does not warrant an inference
of improper motivation, under the circumstances of this case
'S In view of my ultimate conclusion here I have not decided whether
this conduct, as engaged in by the Union in this case, is protected by Sec
7 of the Act
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tected by Section 7, I am still not persuaded Respod-
nent's lawsuit violated the Act, absent a showing of ille-
gal motivation, for as I have discussed supra, it is only
where the filing of a civil suit is brought for the purpose
of accomplishing an illegal objective that its filing vio-
lates the Act. In the instant case, I have found supra,
that Respondent, in the filing of the lawsuit, acted in
good faith.
The General Counsel and New Times argue that even
absent a showing of illegal motivation Respondent violat-
ed Section 8(a)(1) by filing its lawsuit against the New
Times defendants because the suit reasonably tends to
interfere with the statutory right of employees to be in-
formed through the media about the filing of the unfair
labor practice charge in Case 28-CA-5723 and its con-
tents. I reject this contention because, as I have found
supra, it is only where a civil suit is filed for the purpose
of accomplishing an illegal objective that its filing vio-
lates the Act In any event, regardless of Respondent's
motivation in filing its lawsuit against the New Times de-
fendants, its conduct did not violate the Act because the
New Times article challenged by the lawsuit is not pro-
tected by the Act The New Times, in publishing this ar-
ticle, did not act as an agent of the Union, rather it pub-
lished the article as a part of its regular media beat cov-
erage. As a matter of fact, there is not even evidence
that New Times' source was an officer or representative
of the Union. Under these circumstances the New Times
is not in a position to use Section 7 and Section 8 (a)(1) of
the Act as a shield against Respondent's lawsuit absent a
showing that the lawsuit was filed against it as a part of
a scheme to infringe on employees' Section 7 rights. Cf.
Downslope Industries, 246 NLRB 948 (1979) There is no
such showing in this case Quite the opposite, I have
found supra, that Respondent filed the lawsuit in good
faith not because of any desire to infringe on employees'
statutory rights
Based on the foregoing I conclude that Respondent
did not violate Section 8(a)(1) of the Act by filing its
civil suit against the union defendants and the New
Times defendants and, for this reason, shall recommend
that the complaints issued in Cases 28-CA-5904 and 28-
CA-5904-2 be dismissed in their entirety 76
On the basis of the foregoing findings of fact and the
entire record, I make the following
76 On August 12, 1981, New Times filed a motion to supplement the
record for the purpose of submitting newly discovered evidence and a
memorandum in support thereof The General Counsel and Respondent
filed oppositions In support of its motion New Times submitted a copy
of an interview given by Respondent 's publisher Tully to a reporter from
the "Phoenix Magazine" which was published in the August 1981 edition
of that magazine New Times urges that certain comments attributed to
Tully in this interview constitute evidence that the publication by the
New Times of the article which is the subject of the lawsuit here was the
kind of conduct protected by Sec 7 of the Act and that Respondent filed
this lawsuit for an object proscribed by the Act New Times' motion is
denied because I am of the opinion that this new evidence , if proven by a
competent witness , would not establish that Respondent was illegally mo-
tivated in filing its lawsuit or that in publishing the disputed article the
New Times was engaged in activity protected by the Act
CONCLUSIONS OF LAW
1 The Respondent, Phoenix Newspapers, Inc , is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Union, Phoenix Newspaper Guild, Local 237,
the Newspaper Guild, AFL-CIO, CLC, is a labor orga-
nization within the meaning of Section 2(5) of the Act
3. By placing employee Bonnie Bartak on probation on
october 5, 1979, by extending Bartak's probation and re-
assigning her to the position of night police beat reporter
on January 4, 1980, and by discharging her on April 4,
1980, because of her protected concerted activities, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
4. By discharging Supervisor John G Mayne Jr on
January 15, 1980, because of his failure to participate or
cooperate in Respondent 's unlawful scheme to discipline
employee Bartak because of her protected concerted ac-
tivities, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
5. By filing a civil lawsuit on April 1, 1980, in the Su-
perior Court of the State of Arizona, in and for the
county of Maricopa, Case No. C408065, naming as de-
fendants the Union, its officers, and a union representa-
tive, and the New Times, Inc., its publishers and editors,
the Respondent did not violate Section 8(a)(1) of the
Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) of the Act by its treatment of Bonnie Bartak and
John Mayne Jr., I shall recommend that it cease and
desist therefrom and take certain affirmative action in
order to effectuate the policies of the Act
Having found that Respondent, in violation of the Act,
placed Bonnie Bartak on probation, reassigned her to the
position of night police beat reporter, and discharged
her, I shall recommend that the Respondent offer her im-
mediate and full reinstatement to the position she held
just prior to being reassigned to the night police beat, or
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority and other
rights and privileges and make her whole for any loss of
earnings she may have suffered by reason of such unlaw-
ful conduct, by payment of a sum of money equal to that
which she normally would have earned as wages from
the date of discharge to the date of said offer of rein-
statement, less her net earnings during such period, with
backpay computed on a quarterly basis in the manner es-
tablished by the Board in F. W. Woolworth Co, 90
NLRB 289 (1950), together with interest thereon as com-
puted in the manner prescribed in Florida Steel Corp, 231
NLRB 651 (1977)." Additionally, Respondent shall ex-
punge from its employment records all references to Bar-
tak's probation and discharge
Having found that Respondent interfered with, co-
erced, and restrained its employees in the exercise of
rights guaranteed them by the Act, by the discharge of
77 See generally Isis Plumbing & Heating Co , 136 NLRB 716 (1962)
PHOENIX NEWSPAPERS 95
John Mayne Jr, I shall recommend that Respondent
offer him immediate and full reinstatement to his former
position of economic news editor, or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges, and make him whole for any loss of earnings he
may have suffered by reason of his discharge, by pay-
ment of a sum of money equal to that which he normally
would have earned as wages from the date of discharge
to the date of the offer of reinstatement, less his net earn-
ings during the period, with backpay computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Co, supra, together with interest there-
on as computed in the manner prescribed in Florida Steel
Corp, supra 78 Additionally, Respondent shall expunge
from its employment records all references to Mayne's
discharge.
In fashioning the aforesaid remedy for Mayne's unlaw-
ful discharge, I have considered that Mayne was respon-
vs See generally Isis Plumbing Co, supra
sable for the so-called hit list rumor and lied to manage-
ment when he denied his responsibility However, as I
have found supra, despite its belief that Mayne was re-
sponsible for the hit list rumor and had lied when he
denied responsibility, Respondent merely issued him a
verbal and written reprimand for engaging in this con-
duct and thereafter gave him an above-average job eval-
uation and awarded him a merit pay raise Under these
circumstances I am of the opinion that Respondent has
not established that Mayne's record constitutes a bar to
the usual remedy of reinstatement and backpay I have
also considered that prior to the hearing in this proceed-
ing that Mayne informed the Board's Regional Office
that he wanted the Board's General Counsel to cease and
desist from proceeding on his behalf in this proceeding
and testified only under compulsion of a subpoena Nev-
ertheless, this does not preclude that Board from reme-
dying Mayne's unlawful discharge because in administer-
ing the Act the Board is responsible for the rights of the
public as distinct from Mayne's individual welfare Cf.
Lammert Industries, 229 NLRB 895, 924 (1977)
[Recommended Order omitted from publication ]