The American League of Professional Baseball Clubs

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 541 (N.L.R.B. 1971)

THE AMERICAN LEAGUE
The American League of Professional Baseball Clubs
and The Major League Umpires Association, Inc.
Case 1-CA-6581
March 31, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On November 17, 1970, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in the alleged unfair labor practices and recommend-
ing that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Counsel
filed exceptions to the Trial Examiner's Decision with
supporting briefs, and the Respondent also filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner. Pursuant to a
charge filed on January 8, 1969, by the Association of
National Baseball League Umpires-Independent,' a
complaint issued on March 26, 1970, alleging that on
September 16, 1968, Respondent discharged umpires
Alexander Salerno and William T. Valentine, Jr., because
of their activities on behalf of the Charging Party or other
concerted activities thereby violating Section 8(a)(3) and (1)
I After the filing of the charge the Charging Party changed its name,
and the caption set forth above has been amended to reflect the change
541
of the Act. In its answer Respondent denies the commission
of any unfair labor practices.
A hearing was held before me in Boston, Massachusetts,
on 9 days between July 7 and 24, 1970. At the close of the
hearing the parties waived oral argument and were given
leave to file briefs which have been received from the
General Counsel and Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
During the year 1968 Respondent was a nonprofit
membership association of 10 member baseball clubs
located in eight States and the District of Columbia. In
1969 Respondent expanded to include two additional
baseball clubs located in two additional States. Respondent
maintains its principal office and place of business in
Boston, Massachusetts, and is engaged in the business of
staging baseball exhibitions at the locations of its member
clubs. In the course and conduct of its operations during
the year 1969 as a result of baseball games engaged in by
its members Respondent received revenue in excess of $3
million from national radio and television companies,
revenue in excess of $1 million from gate receipts, and
revenue in excess of $500,000 from concession sales.
During the same period Respondent expended in excess of
$500,000 in connection with the operation of its staff of
umpires, including expenditures for salaries and travel; in
excess of $500,000 for the purchase of equipment and
supplies, a substantial portion of which was made through
interstate commerce; and in excess of $400,000 for
interstate travel. During 1969 Respondent's member clubs
individually derived from local radio and television
contracts an average of $900,000 in revenue, and expended
in excess of $1 million for operating expenses of affiliated
minor league clubs, most of which are located in States
other than the States where the member clubs are located. I
find that Respondent is an employer engaged in commerce
within the meaning of the Act and that assertion of
jurisdiction is herein warranted.2
II. THE LABOR ORGANIZATION INVOLVED
In its answer Respondent denies that the Association of
National Baseball League Umpires---Independent, now
called The Major League Umpires Association, Inc., and
hereinafter referred to as the Association, is a labor
organization within the meaning of Section 2(5) of the Act
on the ground that the umpires who participate in the
Association are supervisors within the meaning of Section
2(11) of the Act. This contention was before the Board in
The American League of Professional Baseball Clubs, 180
NLRB No. 30, in which the Board found that umpires are
not supervisors and that the Association is a labor
organization within the meaning of the Act. Although
Respondent wishes to preserve this point for possible
argument in any later stages of this proceeding, it relies
30
2 The American League of Professional Baseball Clubs, 180 NLRB No
189 NLRB No 85
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principally on the record made in the previous case in
support of its contention, and, in essence, acknowledges
that I am bound by the Board's decision in the earlier case
Accordingly, I find that the umpires who participate in the
Association are employees within the meaning of the Act
and that the Charging Party is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent American League and its counterpart, the
National League, employ separate staffs of men who serve
as umpires at all baseball games played between the
member baseball teams within the two Leagues during the
regular baseball season. Umpiring duties at interleague
games, the All-Star game, and the World Series are shared
equally by umpires from the two staffs upon assignment by
the respective Leagues.
In 1963 the umpires employed by the National League
organized themselves into The Association of National
Baseball League Umpires-Independent. Since late 1963
the National League has recognized and bargained with the
Association as the representative of its umpires. In 1965,
some American League umpires discussed formation of an
association , but the matter was not pursued at that time.
However, in 1966 and 1967, the American League umpires
did engage in some group efforts to secure better wages and
conditions of employment.
During the year 1968, the American League consisted of
10 member clubs, and the League employed 20 umpires
who were assigned to five crews of four men each. In
addition, recently retired umpire John Stevens was
employed by the League on a per diem basis to relieve
regular umpires for brief vacations during the playing
season and for absences due to illness or other personal
reasons. Stevens was not considered a member of the
regular umpiring staff.
Within each crew the members were designated as a crew
chief and number 2,3, and 4 men. During the 1968 season
the five crew chiefs were James Honochick, Henry Soar,
Larry Napp, John Flaherty, and Edward Runge, the five
most senior umpires.3 The remaining umpires at the start of
the season in order of length of service were Nestor Chylak,
Frank Umont, John Rice, Robert Stewart, Cal Drummond,
William Kinnamon, Alexander Salerno, William Valentine,
William Haller, Louis Di Muro, James Odam, Emmett
Ashford, Jerry Neudecker, Martin Springstead, and Russell
Goetz. Salerno and Valentine had been American League
umpires since 1961 and 1963, respectively, and each had a
number of years of experience as a minor league umpire
before elevation to the American League. The assignments
of umpires to crews as number 2, 3, and 4 men followed
overall seniority within the list, except that Salerno was
assigned as a number 2 man, while Kinnamon and
3 Apart from Respondent's general contention that all umpires are
supervisors within the meaning of the Act, there is no contention that the
crew chiefs had any supervisory authority over other crew members
4 Kinnamon, however, had returned to the minor leagues for part of one
season after entering the American League
5 Although Salerno, Valentine, and Cronin, in testifying to their
telephone conversations on September 16, did not indicate that Cronin told
Drummond, who entered the League a year before Salerno,
were assigned as number 3 men.4 The crews traveled
extensively during the course of the playing season,
remaining at a single city for from one to three series of
games between the home team and visiting teams.
During the 1968 season, the umpiring staff was
supervised by Cal Hubbard who reported directly to
American League President Joseph Cronin. Cromn and
Hubbard worked out of the League office in Boston.
At the start of the 1968 season, Salerno was assigned to
Napp's crew, and Valentine was assigned to Honochick's
crew. However, on June 10, upon returning from a 1-week
vacation, Salerno was reassigned to Honochick's crew, and
Umont was transferred from that crew to Napp's crew.
From then until September 2, Salerno and Valentine
remained together on Honochick's crew along with
Ashford, the number 4 man on the crew. On September 2,
Salerno and Ashford were interchanged with Rice and
Odom on Runge's crew and remained with that crew until
September 15.
During the summer at some time after Salerno joined
Honochick's crew, he and Valentine discussed the desirabil-
ity of organizing the umpires for purposes of representa-
tion. Salerno and, to some extent, Valentine spoke with
other umpires about this matter during the course of the
summer In mid-July, Salerno and Valentine met with
Wayne Hooper, a lawyer, in Oakland, California, to discuss
organization and, following their meeting, Hooper sent
letters to the crew chiefs for the purpose of exploring the
interest of the other umpires in organizing. On September
12, Salerno attended a meeting of the Association in
Chicago and requested the Association to admit the
American League umpires to membership and represent
them. The Association agreed to accept the American
League umpires as members on condition that all agreed to
loin. 'On September 13 Salerno obtained blank letters of
intent to join the Association from its attorney, obtained
signatures from Honochick and Ashford, and mailed copies
of the letter to the other crew chiefs to be signed by them
and the members of their crews. Salerno also telephoned
the crew chiefs to tell them that the letters were being sent.
Salerno was scheduled to rejoin Honochick's crew in
Cleveland for a series of games starting there on September
17. However, on the morning of September 16, Cronin
telephoned Salerno and Valentine in Cleveland and
notified them that he had decided not to renew their
contracts as umpires for the next season because they were
not competent or good umpires. Cronin told them that he
would send them the remainder of their salaries and 30
days' severance pay and that he would keep their medical
insurance in force until early the next year. Salerno and
Valentine did not work as American League umpires for
the remaining 2 weeks of the season or thereafter.5
On November 1 the Association attorney wrote Cronin
advising him that a majority of the American League
Salerno and Valentine in so many words that they were not expected to
work out the remainder of the season, it appears that all understood it to
be Cronin's intention that they stop work immediately, and Cronin and
Hubbard made arrangements the same day to replace them with two
umpires whose contracts had been purchased previously from a minor
league and who had been on option to the minor league.
THE AMERICAN LEAGUE
umpires had joined the Association and requesting
negotiations on their behalf. On November 21, after
receiving evidence of the wishes of the umpires from the
Association pursuant to his request, Cronin agreed to meet
with the Association. Since then the Respondent has
recognized and bargained with the Association as repre-
sentative of the umpires.
The General Counsel concedes that there is no direct
evidence that Respondent's officials had knowledge of the
organizing activities of Salerno and Valentine, but contends
that there is substantial circumstantial evidence from which
that knowledge may and should be inferred.
The General Counsel contends that the reasons advanced
for the termination of Salerno and Valentine were pretexts
and that the true reason for their discharge was that they
were instrumental in initiating the organizational activity
among the American League umpires, which culminated in
Salerno's attendance at the Association meeting and his
mailing of the letters of intent only a few days before they
were terminated. In support the General Counsel argues
that outright discharges of umpires during a playing season
was unprecedented, that the discharges occurred precipi-
tately and without warning, that Salerno and Valentine
were qualified, competent, and experienced umpires, so
regarded by their fellow umpires and others in baseball,
and that Respondent had displayed animus against
collective action by the umpires on an earlier occasion in
1967.
Respondent denies that any of its officers or agents had
knowledge of the organizing activity among its umpires
during 1968 until shortly after the discharges when they
read news reports of a press conference held by Salerno and
Valentine on September 17.
Respondent contends that the evidence shows that on the
basis of certain incidents and reports from persons
associated with baseball, Cronin and Hubbard reached the
conclusion that Salerno and Valentine did not have the
proper temperament and attitude while on the playing field,
that Cronin and Hubbard decided in July that Salerno and
Valentine should no longer be retained after Hubbard
visited Oakland in mid-July to observe and talk with them,
that the decision could not be implemented at that time
without causing disruption to the minor league umpiring
staffs, that the intention to discharge Salerno and Valentine
was communicated to owner Tom Yawkey of the Boston
Red Sox in August, and that the decision was implemented
on September 16 because of the need to designate
American League umpires for the World Series for which
Salerno would otherwise have been in line in accord with
his seniority. Respondent also contends that the organizing
activity did not begin until after Hubbard's visit to
Oakland, that Valentine did not play any significant role in
it, and that Respondent entertained no animus against
organization by the umpires.
B Activity of the Umpires Before 1968
During 1965 some of the American League umpires
discussed among themselves the formation of an associa-
6 Neither Salerno nor Valentine was among the five on the committee
r Each year the League and each umpire executed a uniform umpire's
contract in a standard form prepared by the League which set forth terms
543
tion of American League umpires. Hubbard, Respondent's
supervisor of umpires , was informed of these discussions.
Although interest was expressed by some of the umpires, no
association was formed. However, in August 1965, most of
the American League umpires met and appointed a
committee of five senior umpires6 to meet with Respondent
President Cronin to discuss some 19 items that were of
interest to the umpires, including salaries, insurance,
pensions, and expenses. Shortly thereafter the committee
met with Cronin, gave him a copy of the minutes of the
earlier meeting of the umpires , and discussed the list of
items with him. Appearing in the minutes given to Cronin
was the following: "It was agreed that this was not an
organized attempt to form a union-this was merely a get
together by the umpires to better the existing conditions
under which we work." The minutes listed all the items the
umpires wished to discuss and noted that "The National
League now enjoys all the items indicated."
Cronin and the committee discussed all the items on the
list. With respect to requests for a minimum salary of
$7,000 and for an increase in the maximum salary paid
umpires, Cronin took the position that salaries were a
personal matter between him and the individual umpires
and would not be discussed. Cronin told the umpires that
he would take most of the other items under consideration.
The committee did not meet with Cronin again, but, in
January 1966, there was a regular annual meeting of the
umpires with League officials Such meetings are held each
year in advance of the spring training season for discussion
of rule changes and interpretations and instructions for the
umpires for the coming year. At the 1966 meeting Cronin
informed the umpires that a number of their requests had
been acted upon favorably, including those relating to
pensions, insurance, and expense allowances. With respect
to salaries, Cronin adhered to the position he took at his
meeting with the committee.
In January 1967, the annual meeting of the umpires with
League officials was held in Boston. Before this meeting,
the annual umpires' contracts had been sent to them, had
been signed by them, and had been returned to Cronin.7 A
number of the umpires had sent letters to Cronin with their
signed contracts expressing appreciation for salary increas-
es which Cronin had granted them in their new contracts.
During the meeting, Hubbard told Cronin that the
umpires had some matters they wanted to raise. Cronin
assented, and Honochick asked a question about pensions.
Cronin stated that he was not prepared to discuss pensions
at that time and asked what else they wanted to discuss.
Honochick mentioned salaries and called upon Kinnamon
to speak on the subject. Kinnamon told Cronin that the
National League umpires were making more money than
they were and referred to a National League umpire with
less seniority than Kinnamon who was making more
money. Kinnamon claimed to have seen the contract of the
National League umpire. Cronin questioned Kinnamon as
to his length of service and then asked if he had a copy of
the National League umpires contract. Kinnamon said that
he did not. Cronin then told Kinnamon not to tell him what
and conditions of employment, including the umpire's salary for the
coming baseball season
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National League umpires got unless he could prove the
facts to him.8 Cronin become angry, characterized the
umpires with an obscene epithet,9 accused the umpires of
being ungrateful, reiterated his position that salaries were a
personal matter between him and the individual umpires,
and, as Cronin put it, blew off steam.
After a few minutes Cronin apologized for becoming
angry.10 Runge then stated that he would soon reach the
mandatory retirement age of 55 and asked if the mandatory
retirement policy would continue as he would like to start
looking for a job in that event. Cronin told him that he
should look for ajob.
There is no other evidence of any discussion of working
conditions with Cronin by the umpires as a group at their
initiative or of organizational activity by them before the
start of the 1968 playing season.
C. The Efforts To Organize the American League
Umpires During the Summer of 1968
1. The activity of Salerno and Valentine before
July 17
During the summer of 1968, a new effort was started to
organize the American League umpires. There is no
question that Salerno played a central role in the organizing
effort. What is in dispute is the extent of Valentine's role,
the time when the organizing activity began, and the extent
to which the activities of Salerno and Valentine were
communicated to others.
Both Salerno and Valentine testified that they initially
discussed the desirability of organizing between themselves
shortly after Salerno joined Honochick's crew in Cleveland
and that during Salerno's first week with the crew they
made telephone calls to other umpires in other cities to
discuss the matter with them. Although both testified that
they spoke to a number of umpires, it is not entirely clear
from their testimony when they called all the umpires
named or which of them spoke during the calls. But it is
clear that both claimed that during the first week of their
discussions one or both of them called all the other crew
chiefs, and that they called other umpires about organizing
between June 10 and July 17, when they met with Attorney
Hooper in Oakland to discuss organizing with him.
Of the crew chiefs, other than Honochick, Flaherty
testified that the first call he received from Salerno related
to Hooper and occurred in July. Runge testified that he
spoke with Salerno several times during July and August
and was not asked if he spoke to Salerno earlier than that.
He had no recollection of talking to Valentine at all about
8 Although several umpires and Cronin testified to varying versions of
the exchange between Kinnamon and Cronin , Spnngstead , a rebuttal
witness , impressed me as having a more complete and accurate recollection
of what was said than the other witnesses, and I have relied on his
testimony in making these findings
9 Valentine, Salerno, and Napp testified that Cronin used a particular
epithet, and were corroborated by Di Muro and Springstead, who testified
that Cronin used that epithet or one like it Rice testified that Cronin swore
but that he could not remember what term Cronin used although to the
best of his knowledge he did not use the epithet attributed to him by
Valentine, Salerno, and Napp Haller testified that he could not remember
whether Cronin swore or what words he used Runge testified that Cronin
used profanity but could not remember the exact words Cronin testified
that he did not use any obscenities, and that the word attributed to him by
organizing during 1968. Napp, however, testified that
Salerno had told him they wanted to organize before
Hooper's name entered the picture. Soar did not testify.
Of the other umpires on other crews who testified, Haller,
a member of Napp's crew, testified that starting in June he
spoke with Salerno and Valentine about organizing,
although more with Salerno, who was a close friend, than
with Valentine. Rice , a member of Runge's crew, testified
that he spoke to Salerno while in Runge's hotel room, but
described the first call as relating to Hooper.ii Stewart, Di
Muro, and Springstead, all members of Flaherty's crew,
testified. Di Muro and Stewart denied that they received
any calls from Salerno and Valentine, and Stewart denied
that he knew anything of their union activities until after
they were discharged. Spnngstead, a rebuttal witness for
the General Counsel , testified that he received a number of
calls and that there were discussions of the organizing
activity among the members of his crew. However,
Springstead also testified that he did not speak with
Valentine about organizing until after Hooper's name
entered the picture. He also testified that he was a friend of
Valentine's and spoke to him by telephone earlier than July
17, but not about organizing.
Honochick and Ashford, the two remaining members of
the crew in which Salerno and Valentine served, testified
that neither Salerno nor Valentine spoke to them about
organizing during the month of June. Honochick, who was
on vacation during Salerno's first week with the crew,
testified that Salerno first raised the matter with him in
Oakland shortly before Salerno met with Hooper, and that
Honochick never discussed it with Valentine. Ashford
testified that he first heard of it just before Salerno visited
Hooper. Salerno and Valentine both testified that they
purposely refrained from discussing organizing with
Ashford until September, but Valentine also testified that
Hooper might have been discussed with Ashford, and both
testified that they spoke with Honochick about their desire
to organize the umpires.
Without attempting to resolve in detail all of the conflicts
in this testimony, the picture which clearly emerges is that,
until shortly before Salerno and Valentine met with Hooper
in July, discussion of organizing was limited. I am inclined
to credit Salerno and Valentine that they discussed the
matter between themselves , and I credit Salerno's testimo-
ny and that of Haller and Napp that Salerno discussed
organizing with Napp and Haller before he went to
Oakland in July.12 However, I find further that the
evidence fails to show other organizational activity by
Salerno and Valentine before they visited Oakland in July,
Valentine, Salerno , and Napp was not in his vocabulary Although there is
some doubt as to the exact word used by Cronin, I am persuaded by the
testimony as a whole , and particularly that of Di Moro, that Cronin used
the epithet attributed to him by Valentine, Salerno , and Napp, or one
substantially similar to it
io Cronin so testified as did Napp Although Di Muro and Springstead
replied negatively when asked whether Cronin apologized for the language
he used , the testimony that Cronin apologized for becoming angry is not
contradicted and is credited
ii Rice also testified that he met Salerno in Detroit at one point before
this, but it is far from clear from his testimony whether organizing was
mentioned at that time
iz i note in this regard that , before his transfer to Honochick's crew,
Salerno was a member of Napp's crew
THE AMERICAN LEAGUE
as the testimony that Salerno and Valentine spoke to other
umpires during this period is at best unclear, largely
contradicted, and completely uncorroborated.13
2. The activity of Salerno and Valentine from
July 17 through August
The Honochick crew went to Oakland for games played
there from July I I through 18, immediately after a 3-day
break in the schedule for the All-Star game. Hubbard also
went to Oakland following the All-Star game and remained
there until Sunday, July 14. While there, he stayed at the
same hotel as the crew, visited the ball park, and spent some
time with crew members away from the ball park. On the
afternoon of July I I or 12, Hubbard had a conversation
with Salerno and Valentine in the hotel coffee shop.
Ashford joined them toward the end of the conversation.
Although the testimony is in dispute as to whether Hubbard
spoke to them at that time about changing their attitude
and behavior on the playing field, it is undisputed that
during the conversation Salerno and Valentine complained
about Ashford and about their belief Cronin failed to back
up the umpires in their actions on the field, that Hubbard
told them that if they didn't like it they could quit, and that
no mention was made of organizing by the umpires.
On July 17, Valentine and Salerno met attorney Wayne
Hooper at a businessmen's health club to discuss with him
their desire to organize the umpires. Valentine was referred
to Hooper by a local restaurant owner, Boots Erb, whose
restaurant Valentine visited frequently and with whom
Valentine had discussed his interest in the organization of
the umpires. Erb suggested that they see Hooper because he
had represented some professional football players in
contract negotiations, and Erb arranged for the meeting. At
their meeting, Salerno, Valentine, and Hooper decided that
Hooper should send out a letter to the crew chiefs, and they
arranged for Salerno to meet further with Hooper the
following morning. The next morning Salerno and
Honochick, but not Valentine, went to Hooper's office and
discussed further the contents of the letter.14
On July 23, Hooper sent his letter to the crew chiefs in
which he stated that he had been consulted by certain
umpires, without naming them, concerning the advisability
of forming an association of the umpires for purposes of
collective bargaining. He stated further that he had been
asked to contact each crew through one of its members to
assist him in determining if the individual umpires were
interested in such an association. Hooper asked the crew
13 In making this finding, I note Springstead's testimony that, although
he spoke with Valentine as a friend before Valentine went to Oakland in
July, Valentine did not mention organizing to him until Hooper came into
the picture
14 Honochick testified that on the day they visited Hooper a day game
was played and that he believed it was July 15 However, Valentine
testified that his meeting with Hooper was on July 17 and I note that the
schedule called for a day game on July 18 1 have accepted Valentine's
testimony as to the time of the meetings
15 Valentine testified that he participated in these calls Flaherty
answered affirmatively when asked if he received calls from Salerno and
Valentine, but also testified that the first call he received was from Salerno
telling him that Hooper would be in touch with him and asking him to
meet with Hooper Runge testified that he recieved a similar call from
Salerno but that Salerno did not indicate whether anyone else working with
him, and he did not recall talking to Valentine Napp testified that he
545
chiefs to ascertain the interest of the others in their crews
and to advise him, stating that all replies would be kept
confidential. Hooper closed by expressing the hope that the
umpires could meet with him at World Series time to
discuss the proposed organization in detail.
After his meetings with Hooper, Salerno telephoned the
crew chiefs to inform them of what had happened, to tell
them they would receive a letter from Hooper, and to ask
them to meet with Hooper when they next visited
Oakland.i5
Napp and the others in his crew met with Hooper when
they were next in Oakland. According to Napp, Hooper
mentioned that Salerno and Valentine had contacted him.
Flaherty did not meet with Hooper, but telephoned Hooper
when he was in Oakland. Flaherty also read the letter from
Hooper to the other members in his crew.is It is not clear
whether Runge and Soar, the other crew chiefs, met with or
contacted Hooper, but Runge showed Hooper's letter to the
others in his crew.
During the remainder of July and August, Salerno, and to
some extent Valentine, from time to time spoke further with
other umpires about the formation of an association. Most
of the umpires who testified agreed that Salerno had spoken
with them or others in their crews about the matter. With
respect to Valentine, there is conflict as to the extent to
which he made calls to other umpires. Flaherty testified
that he received only two calls, both of which were from
Salerno.17 Runge did not recall talking to Valentine, and
testified that he recalled no one other than Salerno who
called him about organizing. He testified that Salerno did
not indicate to him whether anyone else was working with
him. Rice testified that he only spoke with Salerno and
Valentine during calls made by them to Runge, and his
testimony is less than certain as to Valentine's participation
in the calls. Stewart denied receiving calls from either man,
as did Di Muro, although Di Muro testified that Flaherty
told him of receiving calls from Salerno after Salerno met
with Hooper and after Salerno attended the National
League umpires meeting. Springstead, who along with Di
Muro and Stewart constituted Flaherty's crew, testified that
on four or five occasions during July and August he spoke
with Valentine about organizing. He testified that the
formation of an association was also a frequent topic of
discussion among the others in his crew and that others in
the crew expressed annoyance at Salerno and Valentine for
taking it upon themselves to get things started without
consulting others. Haller and Napp testified that they spoke
recieved a letter from Salerno concerning the meeting with Hooper Rice,
who was on Runge's crew, testified that he was in Runge's room when
Salerno and Valentine called Runge to tell him about Hooper Rice spoke
on the phone during the call He could not recall whether he spoke to both
Salerno and Valentine but recalled speaking with Salerno While Valentine
may have been present when Salerno called the crew chiefs, I find the
evidence insufficient to establish that he spoke with the crew chiefs during
the calls
Is Although Stewart denied any knowledge of attempts to form an
association until after the discharges, he conceded that Flaherty had read
Hooper's letter to the crew
17 While Flaherty initially testified that the second call came from
Salerno or Valentine , he later indentified the caller as Salerno, and it is
clear that he was referring to a call made by Salerno on September 13 after
he attended the National League umpires meeting
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to both Salerno and Valentine about organizing during this
period.
I find that, after the meeting with Hooper, Valentine
spoke with Napp and Haller about organizing, and I am
more impressed with Springstead's testimony than that of
Stewart, whose denial of knowledge of any organizational
activity was incredible in the face of his awareness of the
Hooper letter. I find, as Springstead testified, that Valentine
called him about the formation of an association and that
the members of his crew discussed the role of Salerno and
Valentine in initiating the organizational effort. Despite
Honochick's denial that he discussed organizing with
Valentine at any time, I also find it highly unlikely that he
did not at least learn that Valentine had joined Salerno in
meeting Hooper on the night before Honochick and
Salerno met with Hooper.
3. Salerno's attendance at the Association meeting
and his activities thereafter
The Association of National Baseball League
Umpires-Independent was scheduled to hold an annual
meeting in Chicago on September 12 Before that meeting,
Salerno contacted a member of its board of directors and
its attorney and received permission to attend. Salerno
informed other umpires of his plans and inquired of them
whether they wanted him to proceed. They indicated their
support, and Salerno went to the meeting.
According to Salerno and Valentine, at the time Salerno
made his plans, they were working together and both
planned to attend the meeting. However, Salerno was then
reassigned to Runge's crew and they were separated.
Because Valentine was scheduled to umpire a night game in
Anaheim, California, on the day before the meeting, it
would have been necessary for him to travel all night to
attend the meeting, and he decided not to go.18 Salerno
then asked Drummond to accompany him, but Drummond
became ill and could not go. Salerno also suggested that
Napp accompany him, but Napp declined, and Salerno
attended the meeting unaccompanied by any other
American League umpire.
At the meeting Salerno told the National League umpires
that he was there on behalf of the American League
umpires who wanted to join the Association and be
represented by their attorney, Reynolds. The National
League umpires unanimously agreed to admit the Amen-
can League umpires to the Association on the condition
that all the American League umpires indicate their intent
to join the Association.
On September 13, the following day, Reynolds prepared
blank letters of intent for the American League umpires to
sign. Salerno, who remained in Chicago to umpire a three-
game series as a member of Runge's crew, obtained letters
from Reynolds during the afternoon. That evening Salerno
18 There is no evidence that any umpire, other than Salerno, knew of
Valentine's plans to attend the Association meeting with Salerno However,
Springstead's testimony indicates that the members of his crew attributed
the initiative in approaching the Association to Salerno and Valentine
19 Although Stevens placed this conversation 2 days later, he conceded
that, during his stay in Chicago and before the discharges, Runge spoke to
him about the organizational activity I have credited Salerno and Runge
as to the time of Runge's conversation with Stevens Among other things, it
seems likely that it occurred on the same day that Salerno brought the
took two copies of the letter to the ball park where a night
game was to be played. Before the game in the dressing
room, Salerno gave them to Runge and Ashford, who was
also temporarily with Runge's crew, and asked them to
sign. Both signed letters although they postdated them,
stating that they did not want it to appear that they had
been the first to sign. The fourth member of the crew that
night was Stevens, who was substituting for Drummond.
Salerno did not ask him to sign a letter because he did not
consider Stevens a regular umpire. However, during the
course of the game, between innings, Salerno suggested to
Runge that he give Stevens some idea of what was going on
so that he wouldn't feel left out. Runge spoke to Stevens,
and reported back to Salerno that he had filled Stevens in.19
Runge's testimony is not specific as to what he said to
Stevens, and Stevens' testimony is uncontradicted that in a
brief conversation between innings Runge merely men-
tioned that the American League umpires were going to
join the National League umpires' Association and did not
name Salerno or Valentine. However, Stevens also
conceded that he learned that Salerno attended the
Association meeting.
Following the game on the night of September 13,
Salerno returned to his hotel and made arrangements to
transmit the letters of intent to the other umpires. As
Flaherty's crew was scheduled to follow Runge's crew into
Chicago for a series starting on September 17, Salerno put
four letters in an envelope addressed to Di Muro, a member
of Flaherty's crew, and left it for Di Muro at the desk of the
Pick-Congress Hotel, where Salerno was staying.20 Salerno
mailed the other letters to the remaining crew chiefs,
finishing his work on them some time in the early hours of
the morning of September 14 and depositing them in the
mail at that time. In addition, Salerno contacted the
remaining crew chiefs or members of their crews by
telephone and told them that the letters were on the way
and were to be signed by the umpires and returned to
Reynolds as soon as possible 21
On Sunday, September 15, after a day game, Salerno left
Chicago to rejoin the Honochick crew in Cleveland.
Stevens testified that Salerno shared a cab with him to the
airport and that they flew together as far as Cleveland
where Salerno left the plane with Stevens continuing to
Philadelphia. According to Stevens while they were
together Salerno asked him if Runge had talked to him
about joining the Association. Stevens said that Runge had
but that he didn't think it would involve him. He testified
that Salerno replied "The way they talk it will," and that
they did not talk further about the matter. Salerno did not
testify concerning this conversation, and there is no
evidence that any mention was made of the role of
Valentine in the organizational activity.
On the following morning, Cronin telephoned Salerno
letters to the ball park, and, despite the fact that the letters signed by
Runge and Ashford were postdated, Runge concurred in the date testified
to by Salerno, and Ashford , a witness for Respondent, did not dispute it
20 Salerno left the letters in Di Muro's name because Flaherty stayed at
another hotel
21 There is some conflict between the testimony of Salerno, Di Muro,
and Flaherty as to whom Salerno contacted in the Flaherty crew, but it is
clear that he telephoned someone on the Flaherty crew
THE AMERICAN LEAGUE 547
and Valentine, both of whom were in Cleveland, and
notified them of their terminations.
D. Respondent's Knowledge of the Organizing
Activity
None of the umpires who appeared as witnesses testified
that they mentioned the organizational activities to Cronin,
Hubbard, or any American League official. Salerno and
Valentine testified that they attempted to keep their
activities from coming to the notice of League officials, and
that, in addition, until September 13 they did not mention
their activities to Ashford, who was a member of the
Honochick crew, in furtherance of that attempt. Other
umpires indicated they also sought to keep knowledge of
the organizational activity from League officials.22
Salerno and Valentine testified that in addition to other
umpires, they spoke with a number of persons not
connected with organized baseball about their desire to
organize the umpires. These persons included attorneys,
personal friends, a broadcaster, and a sportswriter. None of
them appeared as witnesses before me, and there is no
evidence that any of them ever communicated what Salerno
and Valentine told them to any League official or any one
else. There is also no evidence that the broadcaster or
sportswriter broadcast or published any information
concerning the organizational activity of the umpires
before Salerno and Valentine were discharged.
Valentine also testified that he spoke about the organiza-
tional activities to various persons associated with Ameri-
can League baseball clubs. Valentine named I I players and
coaches and I manager, Eddie Stanky, then manager of the
Chicago White Sox.23 Of those named by Valentine, only
Stanky appeared as a witness, and he was not questioned
about whether Valentine spoke to him or whether he spoke
to anyone else about the activities of the umpires. There is
no evidence that any of the persons named by Valentine
transmitted any information to League officials or anyone
else.
Stevens who concededly learned of Salerno's attendance
at the Association meeting testified that he did not talk with
Cronin or Hubbard or anyone else in the American League
office between the time he gained that information and the
time of the terminations of Salerno and Valentine.
Cronin and Hubbard testified that they first heard of the
efforts to organize the American League umpires a few
days after the terminations of Salerno and Valentine when
they read reports of a press conference held by Salerno and
Valentine at that time. They denied any knowledge of
organizational activity in general or of activity by Salerno
and Valentine in particular before that time.
Cronin conceded that from time to time he received
reports concerning umpires from various persons in and out
of baseball and had discussions about baseball with many
people. However, he testified that the matter of union
22 Napp testified that he "wouldn't let any cat out of the bag," and
others indicated a similar desire by the firm manner in which they denied
giving League officials information concerning the organizational activity
23 On cross-examination, Valentine was questioned as to his failure to
name any of these persons in a depostion he gave in connection with
another proceeding Valentine explained that he had not understood the
question asked him at that time as relating to persons associated with
baseball
activities never came up in the reports and discussions
before Salerno and Valentine were terminated . Cronin also
conceded that from time to time Respondent engaged paid
operatives to keep an eye on umpires. Cronin testified that
this had been done to check out reports received
concerning places frequented by umpires or associations
maintained by them. He denied, however, that anyone had
ever been employed to watch union activities of umpires,
and testified that, during 1968, no one had been employed
by Respondent to watch umpires for any purpose.
After initially testifying that he could not recall his
whereabouts on September 12, Cronin thereafter testified
that he had gone to the Sheraton O'Hare Inn, near O'Hare
Airport, in Chicago on the afternoon of September I1 and
remained there through September 12 for meetings of the
television and executive committees of baseball. These
meetings were attended by officials of the National League,
representatives of some clubs in both Leagues, and the
Commissioner and Secretary of Baseball . Cronin denied
that any mention of the meeting of the Association, which
was held in Chicago on the same day, was made to him or
that there was any discussion of the organization of
Amencan League umpires while he was there. Cronin
testified that he believed compensation of umpires for the
World Series was discussed during the executive committee
metings, but that he recalled no other discussion of umpires
while he was there.24
Apart from testimony of Napp next described, there is no
evidence that Cronin, Hubbard, or any other League
official questioned any umpire about union activities or
made any attempt to learn of them. On cross-examination
by Respondent, Napp testified as follows:
Q. Mr. Napp, during the year 1968 did you have
any discussions with Mr. Cronin or Mr. Hubbard or
anyone else in the Amencan League office concerning
the organization of an umpires association?
A. No, I don't think so.
Q. Well, you are certain so, aren't you?
A. Yuh. I don't know.
Q. You are certain you had no discussions , aren't
you, with Mr. Cromn or Mr. Hubbard or Mr. Holbrook
or Mr. Sullivan or anyone who is in the Amencan
League Office in Boston?
A. Saying that we were going to organize?
Q. Right.
A. Well, there is lots of times.
Q. Did you have any discussions? I want a yes or no
answer.
MR. KELLEHER: I object. I think the witness
should be allowed to answer the question.
MR. KARCH: The question is one phrased for a
yes or no answer. If he wants to make an explanation,
he can do so later.
TRIAL EXAMINER: The question does ask for a
24 Cronin testified that he did not discuss with Charles Segar, the
Secretary of Baseball , the assignment of Amencan League umpires for the
World Series, although he testified otherwise that before the Chicago
meetings Segar had twice requested the names of the umpires assigned to
the World Series by Cronin and that the timing of the terminations of
Salerno and Valentine on September 16 was governed by the need to make
the World Series assignments for which Salerno would otherwise have been
in line.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yes or no answer. I will permit the witness to explain
after he has answered it. There are a number of people
covered by this.
THE WITNESS: He was going to ask me-you said
Hubbard and Cronin? Hubbard, yes. Quite often
Hubbard asked me about it before 1967.
Q. (By Mr. Karch) I mean in 1968.
A. It is pretty hard for me to remember back two
years what specific time he was talking to me about.
Hubbard used to ask me quite a bit if we were going to
organize. Hubbard, yes. He would ask me are we going
to organize or have a meeting. Yes, he did ask me about
that.
Q. Did you say anything in 1968 about Mr. Salerno
or Valentine being involved in wanting to organize an
umpires association to Mr. Cronin or Hubbard?
A. I never said that to them, No. I wouldn't let any
cat out of the bag.
Hubbard denied that he questioned any umpire about
organizational activity at any time from 1965 through 1968
or at any other time. Although conceding that he knew of
the umpires' meeting in 1965, he testified that he did not
understand that those meetings concerned organizing a
union.
Apart from the uniform denials that anyone mentioned
organizing activity to League officials, the evidence also
fails to show that any organizing activity or discussion took
place in the presence of Hubbard, Cronin, or any other
League official. The evidence also fails to show more than
casual contacts between the umpires and League officials
other than Hubbard during the course of the playing
season. As for Hubbard, when the Boston team was playing
at home, he usually remained in Boston, and made it a
practive to go to the ball park each day. While there he
visited the umpires' dressing room before and sometimes
after games and watched the games from the stands. When
the Boston team was not at home, Hubbard traveled to
other cities where games were played and paid similar
attention to the games and umpires When away from
Boston, Hubbard at least at times stayed in the same hotels
as some or all of the umpires and spent time with them
away from the ball park.
E. Conclusions as to Respondent's Knowledge of the
Organizing Activity
The General Counsel concedes that there is no direct
evidence that Respondent had knowledge of the organizing
activity of Salerno and Valentine, but contends that there is
substantial circumstantial evidence from which such
knowledge can be properly inferred. In particular, the
General Counsel contends that a number of circumstances
in this case make it analogous to cases in which the Board
has inferred an employer's knowledge of union activities
from the small size of his plant. The General Counsel
contends further that an inference of knowledge is further
supported by evidence that Cronin admitted that he
employed paid informants to maintain surveillance over
25 Mook Weiss Meat Packing Company, 160 NLRB 546, 549 See also
Kayser-Rosh Hosiery Co, Inc, 166 NLRB 372
25 Wiese Plow Welding Co, Inc, 123 NLRB 616, 618
21 358 F 2d at 882
umpires, that he normally received reports from others in
and out of baseball about umpires, that Hubbard
interrogated Napp about the umpires' union activities, that
Cronin, after first denying it, admitted his presence in
Chicago on the day of the National League umpires'
meeting attended by Salerno, that Cronin had the
opportunity to learn of the union activities from Stevens
and other umpires, and that Salerno and Valentine were
simultaneously and abruptly discharged without prior
warning and for reasons that were pretexts.
It is well settled that knowledge by the Respondent of the
dischargees' union activity "is a prerequisite to a finding
that the discharges were made for that reason, and the
General Counsel has the burden of proving this knowledge
beyond mere suspicion or surmise ." 25 It is also well settled
that an employer's knowledge of union activities may be
inferred in appropriate circumstances in the absence of any
direct evidence of knowledge.26
Whether or not the umpires may be deemed similar to the
employees of a small plant, the so-called small plant
doctrine cases provide a point of departure for discovering
the standards against which to measure the evidence in
determining whether an inference of knowledge may be
drawn.
In considering two applications of the small plant
doctrine in N.LR B. v. Joseph Antell, Inc., consolidated
with N.L.R.B v. Malone Knitting Company, 358 F.2d 880,
the Court of Appeals for the First Circuit stated: 27
[W ]e recognize [the small plant doctrine], to the extent
that we do, not as a rubric, but only insofar as it
furnishes a logical basis for an inference. It could not be
inferred, that because of the small number of employees
in Antell's store it was more likely that there was an
undetected informer present. If anything, the inference
should be the other way. The Board may have thought
here that the leader of the decertification movement
had reported to the employer, but this should have been
a matter of inquiry, which was not made, not of
suspicion. . . . Actually, the term small plant doctrine
is quite misleading. The smallness of the plant, or staff,
may be material, but only to the extent that it may be
shown to have made it likely that the employer had
observed the activity in question. . . . This can have no
application to an off-hour, off-the-premises, meeting,
which was all that was proved in Antell.... To apply a
small plant rule in such circumstances would in effect
put an entirely arbitrary burden on operators of small
establishments-a burden that we could not support.
[Emphasis supplied and citations omitted.]
Thus, to the court, the key was not the size of the plant
but whether the circumstances, including the size of the
plant, made it likely that the employer had observed union
activity of a discharged employee. 28 Decisions of the Board
contemporaneous with and after Antell establish that the
Board has accepted the view of the First Circuit and
28 See also N L R B v Ace Comb Co, 342 F 2d 841, 848 (C A 8),
Dubin-Haskell Lining Corp v N LR B 375 F.2d 568 (C A 4), cert denied
393 U S 824, N LR B v Mid-State Sportswear, Inc, 412 F 2d 537 (C A 5)
THE AMERICAN LEAGUE
declines to infer knowledge of union activity from the size
of a plant alone.29 Instead, the Board looks further to
determine whether the union activities took place at times
and places which created an opportunity for the employer
to observe them or whether the employer made statements
or engaged in conduct which made it likely that the
employer had gained knowledge of the union activities.30
Examples of the latter are interrogation aimed at discover-
ing the identity of union adherents, statements against
interest after the discharge, and statements by employer
representatives indicating knowledge of union activities.
Specifically rejected by the court in Antell as a basis for
finding knowledge is an inference that an employee
informed the employer concerning the union activities.
That, said the court, must be established through direct
inquiry and not by inference. Although in two cases,31 the
Board inferred that an informer identified union adherents
to employers, in both cases there was direct evidence that
informers who knew the identity of union adherents told
the employer that his employees were engaged in union
activities. In both cases the Board discredited denials that
the informers had identified adherents, and inferred from
the fact that they notified the employers of the union
activities that they did not stop short of identifying the
union activists. In no case since Antell has the Board
inferred the presence of an informer without some evidence
that someone did in fact inform the employer at least as to
the existence of union activity among his employees
generally
Here , as the General Counsel acknowledges, apart from
the size of the complement of umpires and the existence of
a single supervisor, the situation differs from the usual
small plant. The umpires work in cities scattered across the
United States. Although one or another of the crews is
located in Boston for approximately half of the playing
season, it does not work at the League office, and visits of
the umpires to the office are not routine. While Hubbard
observes umpires and is in contact with them both in
Boston and on the road, of necessity he can be with only
one crew at a time , and the other four crews function
without supervision present. Although Hubbard's contacts
with umpires on the road iinclude contacts at hotels and
restaurants away from the ball park as well as during visits
to the umpires' dressing rooms, there is no evidence that
any organizational activity took place at any time when
Hubbard was present. While there is some variation in the
testimony of the umpires as to their knowledge of the
efforts of Salerno and Valentine, their testimony is uniform
that they told no American League official of the
organizing activity and it is apparent that all of them,
including Salerno and Valentine, desired that information
concerning their organizing activity be kept from League
officials
29 Saxon Paint Stores, Inc, et a!, 160 NLRB 1757, Ralston Purina
Company, 166 NLRB 566, 570, Lakes Concrete Industries, Inc, eta!, 172
NLRB No 94, M S Plastics of Ohio, 181 NLRB No 104, TXD at fn 3 See
also Hadley Manufacturing Corporation, 108 NLRB 1641, 1650
30 Hesmer Foods, Inc, 161 NLRB 485, enfd 68 LRRM 2097 (C A 7),
cert denied 391 U S 905, East Bay Rambler, Inc, 168 NLRB 1000, The
Circle K Corporation, 173 NLRB No 107, Howard Knit Products, Inc, 174
NLRB No 68, Ballard Motors, Inc, 179 NLRB No 48, and Santa Fe
Drilling Company, 180 NLRB No 160 and 183 NLRB No 44 In some
cases, unlike the instant case, there is direct evidence of the employer's
549
Apart from the evidence of discussion of organizing
among the umpires, there is some evidence in the testimony
of Salerno and Valentine that they spoke to persons other
than umpires about their organizational activity. Both
testified to conversations with attorneys and others not
cconnected with baseball, and Valentine testified to
conversations with players and others associated with
member teams in the League concerning the umpires'
desire to organize. However, there is no evidence to
establish that any of the persons to whom they spoke
transmitted any information to League officials or
publicized the information in any way.
While the General Counsel characterizes the activities of
Salerno and Valentine as "open and notorious," the
evidence establishes that their activities, although not
entirely clandestine, were far from open and notorious. The
evidence does not establish that their activities were carried
on at times and places when they were likely to be observed
by any League official or that information concerning their
activities was spread to so large a group of persons that it
could be said to have become general knowledge within the
baseball world or beyond.
In support of his contention, the General Counsel points
to the testimony of Cronin concerning the practice of
placing umpires under surveillance and the flow of reports
concerning umpires from persons in and out of baseball.
But Cronin testified that there was no paid surveillance of
umpires during the 1968 season and that he received no
reports concerning organizational activity from anyone. It
is true that in his answers to questions by the General
Counsel concerning these matters Cronin took pains to
disclaim any connection between paid surveillance or the
reports he received and union activities no matter what the
question asked him. However, I cannot regard his responses
as the kind of excessive protesting which warrants the
drawing of an inference opposite to that which the answers
seek to establish. Although Cronin was never asked
whether umpires were watched for the purpose of
determining whether they were engaged in union activity or
whether the reports he received concerned that matter, it
took little imagination for him to foresee the purpose of the
questions asked him, and Cronin's responses were little
different from what one might expect from one in Cronin's
position of responsibility.
Nor do I draw any inference of guilty purpose from the
fact that Cronin introduced the word "surveillance" in his
testimony. Surveillance is a term with special significance in
the administration of the National Labor Relations Act,
but it still retains a normal usage in conjunction with
private investigations without any connotation of spying
upon union activity. While the nature of the surveillance
carried on at the League's direction was not spelled out in
any detail, it is obvious from the nature of an umpires' work
knowledge of organizational activity among his employees and the
inference drawn is that he learned or had reason to suspect the identity of
the union activists In such cases the narrower inference is more easily
drawn and additional grounds for that inference may lie in factors such as
the employer's knowledge of a prior union affiliation of an employee See
e g The Pembek Oil Corporation, 165 NLRB 367, 373, enfd as modified
404 F 2d 105 (C A 2), vacated on other grounds 395 U S 828, Wiese Plow
Welding Co, inc, 123 NLRB 616
31 Mose Franck Heating and Air Conditioning, Inc, 150 NLRB 850, 857,
FMC Corporation, 181 NLRB No 127
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the role of professional sports in society that the
League has legitimate interests unrelated to union activities
in seeking to learn of the associations maintained by
umpires and the places they frequented. Similarly, it is
apparent that there are numerous reasons unrelated to
union activities for persons working in professional
baseball and others to report to Cronin concerning
umpires.
This is not to say that if there had been paid surveillance
of umpires during the critical period their union activities
might not also have been observed and reported to Cronin.
But there is no evidence of any paid surveillance of umpires
during the critical portion of the 1968 season. Likewise, one
cannot exclude the possibility that Cronin could have
learned of the union activities through reports concerning
umpires. However, absent any direct evidence that anyone
reported the union activities to Cronin and absent any
evidence that he received reports from persons who knew of
the union activities, I cannot conclude that knowledge of
the umpires' activities was so widespread that it can be
inferred that reports which came to Cronin included reports
of the umpires' union activities. Even assuming that I were
to reject all or much of Cronin's testimony as unworthy of
belief, I would not find that Cronin's testimony concerning
surveillance and reports about umpires constitutes evidence
from which an affirmative inference of knowledge can be
drawn 32
The General Counsel points further to the testimony of
Napp, set forth above, that Hubbard had questioned him
about umpire union activity to establish that the League
was actively seeking to learn of the umpires' union
activities. If in fact Hubbard interrogated Napp concerning
union activities of the umpires during the 1968 season, there
might be some basis for inferring that Hubbard's inquiries
were not pure coincidence but reflected the receipt of
information from some other source and efforts by
Respondent to confirm what it had heard or learn more.
However, viewing Napp's testimony and the record as a
whole, I cannot conclude that Hubbard interrogated Napp
during the critical period. When the umpires met together
in 1966 and sent a committee to meet with Cronin, Hub-
bard was made aware of their meeting and at least some
of their plans Again in 1967 before the annual January
umpires' meeting called by the League, Hubbard was made
aware that the umpires wanted to raise some matters with
Cronin. Napp first stated that Hubbard asked him about
the organization "before 1967," with apparent reference to
these earlier events. Although he was then questioned
specifically about 1968, Napp commenced his answer by
stating that it was difficult for him to remember back 2
years, and then affirmed that Hubbard asked him about
that Given the way in which this evidence developed,
Napp's initial response, his first qualification that Hubbard
11 The surveillance by private investigators in Rust Sales Company, 157
NLRB 1681 , which the General Counsel cites , unlike that in this case, was
carried on during the period of the union activities under circumstances
which led the Board to conclude that its purpose was to discover the
identity of union adherents There was other evidence in that case to
establish that the employer was generally aware of union activity in his
plant at the time of the surveillance and the employer had made threats of
reprisal for union activities The surveillance in Rust Sales is clearly
distinguishable from that in this case With respect to the reports received
questioned him about union activity before 1967, his
admitted difficulties in recalling the time Hubbard
questioned him, and the absence of any other evidence of
similar activity by Hubbard in connection with any other
umpire, I cannot conclude that Napp's recollection was
sufficiently focused or certain for me to find that Hubbard
interrogated Napp during the 1968 season before the
terminations occurred.
The General Counsel also calls attention to the fact that
Cronin was present in Chicago on September 12, the day
that Salerno attended the National League umpires'
meeting, and that he did not disclose that fact when initially
questioned about it. It is true that Cronin first indicated
that he did not recall whether he was in Chicago on that day
and later testified concerning his trip to Chicago only after
an opportunity to refresh his recollection. However,
whatever the reason for his initial testimony, and even
assuming that the subject of umpires and World Series
assignments of umpires must have come up at the
meeting,33 the question still remains whether it is likely that
the subject of the organizing activity came to Cronin's
attention at that meeting. It may well have been that the
National League officials who were present were aware that
the Association was meeting that day, but it is stipulated
that the Association did not inform National League
officials that Salerno was to attend that meeting, and there
is no evidence to indicate that the National League officials
who met with Cronin had any knowledge of Salerno's
attendance at the Association meeting when they met with
Cronin or thereafter. Although Cronin was in Metropolitan
Chicago, the two meetings were not held at the same
location, and there is nothing to indicate that Cronin was
more likely to have learned of Salerno's activities because
both meetings were held in Chicago than if the two
meetings were held in completely separate cities. Again I
need not affirmatively accept all of Cronin's testimony to
find that his presence in Chicago on September 12 does not
warrant an inference that he learned of the union activities
at that time. For even if I were to reject all of his testimony
save that favorable to the General Counsel, the evidence
fails to establish that during his visit to Chicago Cronin was
in contact with anyone who had knowledge of the union
activities.
Of like character is evidence to which the General
Counsel points concerning the possibility that the crew of
umpires assigned to Boston starting on September 16 may
have visited Cronin's office on September 16 to talk to
Cronin and Hubbard. That crew consisted of Runge, Rice,
Odom, and Stevens who was filling in for Drummond. Of
the four, Runge and Rice testified for the General Counsel.
They were not questioned about visiting Cronin's office on
September 16, but they testified that they did not tell
Cronin or Hubbard about the organizing activity. Stevens
by Cronin otherwise, I note that unlike Mose Franck Heating and Air
Conditioning, supra, and FMC Corporation, supra, here there is no evidence
that the reports concerned union activity among the umpires in any way, or
that any of those who reported to Cronin had any knowledge of the union
activities or the participation of Salerno and Valentine in them
33 Cronin was late in submitting to Baseball Secretary Segar the names
of the American League umpires assigned to the World Series, and Segar
was present at the O'Hare Sheraton Inn meeting
THE AMERICAN LEAGUE
testified for Respondent that he did not arrive in Boston
until the afternoon of September 16 and that he did not talk
to Cronin or Hubbard about the organizing activity. It is
also significant that Stevens, who was retired and only
worked on special assignment, insofar as all testimony
indicates, knew at that time only of Salerno's activities and
not of Valentine's. Odom was not called as a witness for
either side.
The evidence thus far considered does not establish that
organizational activity took place at times and places where
it was likely to have been observed by American League
officials nor does it establish conduct or statements by
Respondent's officials or others indicating that the
organizational activity had come to the attention of League
officials from any source What the evidence does show is
that there were a number of possible ways that Cronin and
Hubbard might have learned of the union activities if any
one of a number of persons communicated information
they had to Cronin, Hubbard, or other League officials.
Thus, some umpires knew of the roles of both Valentine
and Salerno in the organizational activities, and a larger
number` of umpires knew of Salerno's role in both the early
activities and the later effort to bring the American League
umpires into the Association. Any of these umpires could
have reported what they knew to Hubbard or Cronin while
concealing that fact in his testimony. It is also possible that
National League officials became aware of Salerno's
attendance at the Association meeting and reported their
knowledge to Cronin. It is even possible that Cronin was
informed by more than a single source, first as to the early
activities of Salerno and Valentine, and then as to the later
attendance of Salerno and the Association meeting. All
these are possibilities but all depend upon acceptance as
fact that one or more persons reported to Cronin or some
other League official their knowledge of the union
activities. However, as set forth above, N L R.B. v. Joseph
Antell, supra, holds that an inference of knowledge may not
be drawn from the possibility that someone may have been
an informer.34 Although the Board has has not expressed
itself squarely with respect to this holding since Antell, its
reliance on other factors where it has inferred knowledge
and its rejections of inferences of knowledge in cases where
an informer could have been present lead me to conclude
that it accepts and follows the holding of Antell, at least in
the absence of evidence that anyone informed as to any
aspect of the union activities. Here the testimony is uniform
that no one informed Respondent as to any aspect of the
union activities. Even if I were to have cause to suspect the
truth of some of this testimony, I would still be faced with
the absence of any affirmative evidence that any of the
possible informers in fact played that role.
There remains for consideration the General Counsel's
contention that an inference of knowledge may be drawn
34 There is no more reason here than in Antell to draw such an
inference There the sponsor of a petition to decertify the union was
present at the meeting where the alleged discriminatee expressed himself as
strongly favoring the union, and there was strong reason to suspect him as
the source of information to the employer
35 Wiese Plow Welding Co, Inc, 123 NLRB 616, Ambox, Incorporated,
146 NLRB 1520, enfd as modified 357 F 2d 138 (C A 5), Mose Franck
Heating and Air Conditioning, Inc, 150 NLRB 850, Hesmer Foods, Inc, 161
NLRB 485, enfd 68 LRRM 2097 (CA 7), cert denied 391 U S 905, The
551
from the evidence already considered in conjunction with
the facts that the discharges occurred only a few days after
Salerno attended the National League umpires' meeting,
that both dischargees were the leaders of the move to
organize, that the discharges were precipitous, without
precedent, and without prior warning, that the reasons for
the discharges were pretextual, and that Respondent
displayed hostility to joint action by the umpires to secure
higher salaries. For purposes of considering this argument,
I will assume the validity of its underlying premises. Thus,
despite the fact that Respondent challenges the assertion
that Valentine was a leader of the move to organize,
vigorously disputes the contention that the reasons
advanced to explain the discharges were not the true
reasons, and attacks other of the premises of this argument,
I will assume arguendo that the evidence upon analysis
would support conclusions favoring the General Counsel
with respect to all the premises of the argument.
While it is true that the Board has at times relied on
similar factors to support a conclusion that knowledge
should be inferred, in the cases cited by the General
Counsel and others I have found there has also been other
evidence present, such as evidence that the employer had
an opportunity to observe the union activity, or that the
employer engaged in some conduct which made it likely
that he gained knowledge of the union activity, which
furnished an independent basis for the inference 35 On the
other hand, the Board has declined to draw an inference of
knowledge although finding union animus, suspicious
timing, and false reasons advanced to justify a discharge,
where the evidence otherwise was insufficient to show an
independent basis for inferring knowledge.36 These hold-
ings can be reconciled only by concluding that factors of
animus, timing, and pretext may support the conclusion
that an inference of knowledge should be drawn in a
particular case once other evidence permitting the inference
is shown, but that these factors are not sufficient to permit
the inference to be drawn in the absence of an independent
basis for it in the evidence. I am mindful of the fact that the
Circuit Court of Appeals for the Ninth Circuit has stated in
Shattuck Denn Mining Corp. v. N.L.R.B.: 37
If [the Trial Examiner] finds that the stated motive for a
discharge is false , he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal- an
unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.
But in Shattuck Denn, the surrounding facts left no question
as to the employer's knowledge of the union activities on
which it was found the discharges were based. While there
is strong temptation to reach the same result even where the
record shows no independent basis to infer knowledge, I
conclude from the decisions cited above that evidence of
Pembek Oil Corporation, 165 NLRB 367, enfd as modified 404 F 2d 105
(C A 2), vacated on other grounds 395 U S 828, East Bay Rambler, Inc,
168 NLRB 1000, 1005--06, The Circle K Corporation, 173 NLRB No 107,
Ballard Motors, Inc, 179 NLRB No 48
36 Imperial Laundry and Cleaners, Inc, 165 NLRB 327, 329, Ralston
Purina Company, 166 NLRB 566, Lakes Concrete Industries, Inc et at, 172
NLRB No 94, McKinnon Services, Inc, 174 NLRB No 169, Merritt Motor
Company, 181 NLRB No 172
37 362 F 2d 466, 470
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
animus, suspicious timing, and pretext are not adequate
substitutes for independent evidence from which an
inference of knowledge may be drawn.
In sum, the evidence in this case indicates that Cronin
and Hubbard could have learned of the activities of Salerno
and Valentine before they were discharged. Indeed, it may
even leave strong suspicion that they did. But even
assuming I were to reject the denials of Cronin and
Hubbard in this regard, the affirmative evidence is not
sufficient to permit the inference that Cronin and Hubbard
knew of the organizational activities of Salerno and
Valentine before their contracts were terminated. Thus, I
conclude that the General Counsel has failed by affirmative
evidence to establish that Respondent had knowledge of
the union activities of Salerno and Valentine beyond mere
suspicion or surmise and that the complaint must be
dismissed for failure to establish an essential prerequisite to
a finding that the discharges were caused by union
activities.
As stated above, I have assumed arguendo in this
discussion the validity of some of the premises of the
General Counsel's argument. As I have found that even
with that assumption the evidence of knowledge is
insufficient to support a conclusion that the discharges
were discriminatory, little purpose would be served by
extending this decision for further consideration of the
evidence and the various contentions of both parties
relating to the cause of the discharges and the other issues
which I have not reached . Accordingly, I shall recommend
that the complaint be dismissed.
Upon the basis of the above findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The American League of Professional Baseball Clubs
in an employer engaged in commerce within the meaning of
Section 2(2) and (6) of the Act.
2. The Major League Umpires Association, Inc., is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The General Counsel has failed to establish that
Respondent discharged Alexander Salerno and William T.
Valentine, Jr., because of their union or other concerted
activities in violation of Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.