The Independent, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1974

212 N.L.R.B. 808 (N.L.R.B. 1974)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Progress-Index, Petersburg Division of The Inde-
pendent, Inc. and Warren B. Crowder. Case 5-
CA-6404
August 9, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On April 30, 1974, Administrative Law Judge Jen-
nie M. Sarrica issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. General Counsel filed a mem-
orandum in support of the Administrative Law
Judge's Decision and in reply to Respondent's excep-
tions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
on January 3, 1974, presenting allegations that, The Pro-
gress-Index, Petersburg Division of The Independent, Inc.,
hereinafter referred to as the Respondent, committed unfair
labor practices within the meaning of Sections 8(a)(1), (3),
and (4) and 2(6) and (7) of the Act. The Respondent filed
an answer denying that it committed the violations of the
Act alleged. Upon due notice, the case lWas tried before me
at Petersburg, Virginia, on February 19 through 21 and on
February 25. Representatives of the Respondent and the
General Counsel were present and participated in the hear-
ing. The Charging Party was present throughout1he hear-
ing.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs, I make
the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent, a Virginia corporation, is engaged in the
business of publishing and distributing newspapers in and
around Petersburg, Virginia. During the preceding 12
months, a representative period, Respondent derived from
such operations gross revenues in excess of $200,000 and
purchased and received materials and supplies valued at
more than $20,000, in interstate commerce, from points
located outside the Commonwealth of Virginia.
Respondent admits, and I find, that it is now, and at all
times material herein has been, an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the'National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, The Progress-Index, Peters-
burg Division of The Independent, Inc., Petersburg,
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (CA. 3, 1951) We have carefully examined the
record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended (29 U.S.C. 151, el seq.), hereinafter
referred to as the Act. Based on charges filed on November
5, 1973,' and amended on December 20, a complaint issued
II. THE LABOR ORGANIZATION
Respondent admits, and I find , that Petersburg Typo-
graphical Union No. 26, International Typographical
Union , AFL-CIO, herein called the Union , is now , and has
been during all times material herein, a labor organization
within the meaning of Section 2 (5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent interrogated and/or threatened
employees with loss or reprisals for union activity.
2. Whether the Charging Party was given notice of termi-
nation because of his concerted activity-efforts to secure
payment for overtime worked by him and other employees,
or for union activity.
3. Whether the Charging Party's termination date was
accelerated because he filed a charge against Respondent.
B. Background
Respondent publishes a daily newspaper in Petersburg,
Virginia. Employees in the composing room and pressroom
Unless otherwise indicated, all dates are in 1973.
212 NLRB No. 126
THE PROGRESS-INDEX 809
have been represented by the Union for a number of years.
Newsroom employees, including news reporters, sports-
writers, and photographer-technicians, have not been repre-
sented by any union. There has been intermittent discussion
among newsroom employees about seeking union represen-
tation and several contacts were made by various employees
trying to interest the Newspaper Guild in organizing and
representing them. Reporter Martha Hendricks dates her
knowledge of such discussions among newsroom employees
from the summer of 1970, with specific reference to the
Guild in the spring of 1973. Other witnesses, all hired subse-
quent to Hendricks, testified that they became aware of
discussions among employees about unions or with refer-
ence to the Guild, shortly after the respective employment
date of each. Sometime in March 1972, before Harry L.
Marsh, Jr., became sports editor, he attended a meeting
related to activity on behalf of the Guild, with Warren B.
Crowder and three 'reporters who have since left the
Respondent's employ. None of the reporters who were
known by witnesses to have contacted the Guild are cur-
rently employed by Respondent, but there is no specific
evidence that their leaving Respondent's employ and their
union activity were `related.
Concurrent with the filing of the original charge herein,
the Union filed a representation petition, and has since been
certified after a consent election.
C. The Alleged 8(a)(1) Conduct
The General Counsel asserts that in the latter part of May
the publisher, Rufus Josey, interrogated and threatened re-
porter Martha Hendricks concerning union organizational
activities. Hendricks testified that she had been told by the
managing editor, James B. Anderson, that she was to re-
ceive a raise in pay. Assuming it would be the usual $5 a
week generally given by Respondent, Hendricks asked An-
derson if they would make it a $10 raise. Several days later
she was told she was wanted in Josey's office. When she
arrived around 2:30 p.m., Anderson was there also. Josey
and Anderson said they wanted to discuss her "attitude"
which they considered bad. Josey reviewed her employment
history throughout which she had received raises regularly,
which she acknowledged.
After Anderson left for an appointment, Hendricks and
Josey continued their conversation which lasted until 4:30
p.m. During this latter period, according to Hendricks, Jo-
sey asked her if she had heard of any efforts to organize a
union in the newsroom. Hendricks told Josey she had not.
Although she had, Hendricks testified she did not reveal this
to Josey because from the time she was employed she had
been warned by fellow employees not to talk about unions
where management could hear it. When Josey raised the
question, Hendricks recalled that shortly before Marsh had
warned her to mention union only to people she knew she
could trust because management was against unions? After
her reply, Josey stated that he would like to get his hands
on the ring leader.3
Josey recalled the conversation with Hendricks. He testi-
fied that Anderson "came'>to him saying that Hendricks had
great potential but Anderson was concerned about her atti-
tude. Neither Josey nor Anderson denied Hendricks' testi-
rnonylthat the indicator of "attitude" was her request for a
larger raise. Josey acknowledged that after Anderson left
the subject of union activity came up in his conversation
with Hendricks. Josey identified the context as follows: He
asked Hendricks about morale in the news department. She
reported it was good, although there was some griping. He
then commented that some 18 months or 2 years previous
a reporter had been discharged for incompetence and there
was some unrest on the staff. He told Hendricks that some
6 or 8 months later he heard that this reporter had shown
some interest in organizing the news department and he,
Josey, hoped that at the present time there was no feeling
in the news department that they needed a union to look
after their interests. Josey did not recall what precipitated
the subject of "staff morale," and further testified that, to
the best of his memory, this was all that was said regarding
a union.
Hendricks further testified that she was disturbed by
being called to Josey's office for criticism of her attitude
because she had asked for a larger raise and told her family
and several other persons about this encounter. She testified
that she related the incident to reporter Arthur Gary Sulli-
van as late as October as a warning to him when he came
to her and asked how she felt about unions. At that time,
because Sullivan was new on the staff, she told him that
management was against unions and related to him warn-
ings she had received from other employees, recounting her
conversation with Josey as substantiation of her belief in the
truth of those warnings. Sullivan corroborated this conver-
sation stating that Hendricks told him that her conversation
with Josey left her with the impression that persons associat-
ed with organizing a union would be discharged.
Hendricks' demeanor was open and sincere. She dis-
played no inclination to venture beyond her specific recol-
lection, stating only that there were a few other things said
by Josey leaving her with the impression that Josey had
heard rumors about union activity, but she could not recall
them. Hendricks, presently on a temporary leave of ab-
sence, is still employed by Respondent and testified pur-
suant to a subpena. There is nothing in the record that
would suggest any personal motive that might affect her
testimony. Testimony of Sullivan regarding their October
conversation lends support to Hendricks' testimony as to
what occurred in her conversation with Josey, and Josey's
testimony does not directly contradict that of Hendricks.
His version of what was said ,by him with respect to unions
appears more likely to be the part he happens to remember.
The fact that Hendricks was upset by this incident and
related the experience to other persons over a period of time
would tend to imprint the conversation in her memory. I do
not regard their separate versions of this lengthy conversa-
tion as mutually exclusive, and credit Hendricks that Josey
made the statements regarding unions related by.her, as well
son questioned the inclusion as it brought her hours for the week into over-
2 At that tune Marsh was sports editor, a supervisory position. time for pay purposes. Later Anderson reported to Hendricks he had had a
9
Hendricks further testified, without contradiction, that she included the conversation with Josey about this time and that Josey was furious and said
time spent in Josey's office as working time on her weekly timecard. Ander- this was an example of her bad attitude
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as those statements Josey testified to.
On the basis of the credited testimony, I find that Josey
interrogated Hendricks concerning the union interest and
activity of her fellow employees, and conveyed an implied
threat that anyone trying to organize a union would be
discharged. I further find that this occurred in the latter part
of May 1973, and that Respondent thereby violated Section
8(a)(1) of the Act.'
On June 12, a number of newsroom staff members, to-
gether with their supervisor, City Editor William E. Eng-
land, worked late tabulating the election returns for the
Petersburg City Council. Between 11:30 and midnight, after
most of the returns were in and their work was substantially
completed, the group engaged in social drinking and discus-
sion on topical subjects in the course of'which reporters
began questioning England about policies of the Thompson
newspaper chain, of which the Respondent is one.
According to reporter William A. Eby, he asked England
if there were any unionized news staffs at other Thompson
newspapers. England informed the group that to his knowl-
edge there was only one organized news staff of the chain
in the United States and that it was already represented by
a union when Thompson purchased the paper. Eby asked,
"What if we tried organizing a union here?" and England
replied: "There will be no organizing or no union" in a
Thompson newspaper.
Reporter Cynthia Mae Wornom, who was also present,
testified that in response to a question "what about unions,"
England told them that where newsrooms had tried to orga-
nize, at at least two other Thompson newspapers, the news
staff had been discharged but he did not say which newspa-
pers were involved. She further testified that one of the
reporters, and she believed it was Eby, then asked, "what
about a union here," and England replied that if they at-
tempted to organize a union they would all be fired, and so
would Anderson for allowing it.
Sullivan who was also present in this session, and who
was a witness in this case, did not testify concerning what
was said by England on this occasion.
England testified that on the occasion referred to he was
fielding questions from the reporters about the Thompson
chain policies, and that the subject of unions was mentioned
when one of the reporters asked him about his personal
plans. In response to this question he told the group of a
possible opening for managing editor at the chain's Adri-
4 The initial charge herein was filed on November 5, 1973 The allegation
in the complaint reads: "on or about the latter part of May 1973, the exact
date being presently unknown . . " The Respondent 's answer enters a
general denial of'this section of the complaint . In his opening statement, the
General Counsel referred to this incident only as having occurred in "May,
1973" and failed to establish the date more precisely through the witnesses.
Nor was a more definite date suggested by testimony elicited by the Respon-
dent or by documentary evidence suggested by the testimony. Although in
his opening statement Respondent's attorney referred to all of the 8(a)(l)
allegations with regard to preserving a position taken on the basis of Sec.
10(b) in preliminary motions, he specifically stated in that connection that
"It is true that they occurred within the 6 month of the charge .. " I accept
this statement, in light of Respondent's failure to present documentary evi-
dence-the overtime record-presumably in its possession , and the failure
to raise the matter in its brief, as a concession that the first incident subject
of an 8(a)(l) allegation did occur "in the latter part of May, 1973," and that
it is not time-barred by Sec. 10(b), despite the General Counsel's failure to
establish this affirmatively.
enne, Michigan, paper. In this connection, England asserted
he related the problems current at that paper involving a
strike during which the company brought in new equipment
and was hiring new people instead of trying to negotiate a
strike settlement. England recalled that it was Wornom who
asked what would happen if the reporters at The Progress-
Index formed a union, and that he said "We won't even talk
about that. . . . There is no need to have a union here when
reporters negotiate their own salaries. I don't see any reason
to pay union dues to have somebody else do something you
can do for yourself." England testified that this was the
extent of his comments about a union. Although on cross-
examination England testified that Wornom's question
came out of the blue, he later corrected this to conform with
his testimony on direct examination that Wornom's ques-
tion followed his discussion of the Adrienne situation. Eng-
land added that he told her he did not think they needed to
consider that, stating, "I believe that is what I said," and
that she made no reply.
Josey testified that he was aware of two Thompson chain
newspapers in the United States where newsrooms were
organized and knew that the one in Pennsylvania was orga-
nized after it was under Thompson ownership but he did not
know if this was true of the other which he identified as
located in Ohio. He did not mention the Adrienne, Michi-
gan, paper, nor does it appear whether the newsroom em-
ployees at Adrienne were already organized when they
struck or were attempting to organize. In this respect Eng-
land testified that he learned of the Adrienne situation
through Josey and by talking with an official of Thompson
in Chicago. England was not asked whether he knew of any
Thompson chain newspaper where newsroom employees
tried and failed in their organizing efforts.
Eby and Wornom both identify the reporter raising ques-
tions about unionization as Eby. The recollection with re-
spect to their own participation in presenting these
questions to their supervisor is more likely to be specific in
this respect and, therefore, more accurate than that of the
supervisor who was responding to' such questions from a
group of five reporters in an informal gathering. I find that
England was mistaken in his testimony that it was Wornom
who raised the questions. There is also the impression left
from England's testimony indicating that he tended to con-
fuse this conversation as to what he had said about the
Adrienne, Michigan, situation with a later, more private,
discussion involving Eby and Sullivan.
England's own version of his statements to the group of
employees discloses' that he used this question-and-answer
session to convey a firm official attitude against reporters
organizing and toward negotiating with union representa-
tives. Other testimony, including that of Josey indicates how
difficult it was for employees to come by information con-
cerning the representative status of newsroom employees at
other chain newspapers.
Both Eby and Wornom are still employed by Respondent
and testified under subpena. Neither was in the hearing
room for any significant period other than during their own
testimony, and therefore testified from their independent
recollection without stimulation from the recounting of
others. The evident level of intelligence of both is such that
it is doubtful either misunderstood what was said by Eng-
THE PROGRESS -INDEX 811
land, and I am convinced that differences in their testimony
is the result of variance in the clarity of their memory:
Wornom displayed a more ready recall and her demeanor
was sincere and matter of fact . I credit her testimony.
Accordingly, I find that England told the group of news-
room employees on June 12 that attempts to organize a
union by news staffs at two related newspapers had resulted
in discharge and that if they attempted to organize a union
they would all be fired . Respondent thereby engaged in
threats of discharge violative of Section 8(a)(1) of the Act.
Eby and Sullivan went with England to the Playboy Pizza
Den after work on or about July 26 where they were togeth-
er for about 3 hours having pizza and beer and talking about
a wide range of subjects . In the course of their discussion
concerning mechanical changes being made at some of the
other Thompson chain newspapers , and concerning work-
mg conditions at The Progress-Index-mcluding such mat-
ters as mileage and overtime-Eby testified that he asked
"what if" there were to be a unionization attempt at The
Progress -Index. England replied that any attempt to union-
ize would result in getting fired . Eby did not recall that
England said anything to indicate that he would do the
firing, or that he would cause those persons organizing a
union to be , fired.
Sullivan testified that he was the one who broached the
union topic at the July 26 gathering at the Playboy Pizza
Den and that England said it was something they should not
talk about, but anyone organizing a union would be fired.
It was Sullivan's recollection that Eby encouraged him not
to pursue the subject. -
England recalled that the subject of unionizing at the
Progress-Index came up at the Playboy Pizza Den, and that
it was raised again in the context of his own career plans.
He told Sullivan and Eby he had received a couple of offers
within the Thompson organization , one at Adrienne , Michi-
gan, and another in Lafayette, Louisiana, and he told them
about the strike situation and trouble at Adrienne , restating
much the same thing he had told the group on June 12.
England asserted that is was Eby who asked what would
happen if they formed a union at the Progress-Index and
that he replied he did not know. Eby persisted, "What do
you think might happen?" and he replied, "I couldn't say.
I don't think we even ought to get into that." Whereupon
Sullivan laughingly , said, "We will probably all be fired,"
and they all laughed and went on to other subjects.
The conversation which Eby related as having occurred
over pizza and beer, and his participation as the questioner
on matters regarding unionization , is significantly similar to
what Wornom placed as occurring on June 12 . Since Wor-
nom was not a participant at the Pizza Den, I am forced to
conclude that Eby, too, confused the two similar conversa-
tions with England, at both of which he was present. Eby,
several times , stated his recollection with caution and some
uncertainty with respect to details. England places in this
conversation the comment that they would probably all be
fired, but attributes this to a joke made by Sullivan. On the
other hand , Sullivan's recollection that it was he who asked
the question about organizing , and that after England's re-
ply Eby discouraged him from pursuing the subject, has the
ring of truth. I credit Sullivan's testimony as the accurate
reportage of this incident and find that England again
threatened discharge as the price of any union organizing
effort. Respondent thereby violated Section 8 (a)(1) of the
Act.
Around 10 am. in early November, after Respondent had
received the Union's demand for recognition as representa-
tive of the news staff, Anderson called photographer Robert
E. Kennedy into his office and asked him directly, "Have
you joined in with the union?" Kennedy replied "yes." After
some other conversation Anderson returned to the union
subject stating he was sorry to hear about "this thing" be-
cause they were "just forming a real good staff at the news-
paper"; they were working smoothly as a team; they had a
good group all the way through the reporters; the paper was
getting out with good , pictures, good reporting , and good
story count; all this could change and they could not have
the close liaison if the Union came in that they then had.
At a later point in a 20-minute conversation, Anderson
asked Kennedy whether he felt that Anderson was harass-
ing him . At the end of the conversation , Anderson stated
again he was sorry for the things that had happened because
he had plans for the staff and now "this" changes ev-
erything. Anderson gave no testimony concerning this con-
versation.
Asking an employee whether he has joined the Union in
circumstances where employees are organizing, and a recog-
nition demand has just been made, is unlawful interrogation
absent special reasons and safeguards not present here. I
find that the other statements made by Anderson in this
conversation were not unlawful. In my opinion, they do not
constitute threats to make changes in retaliation for union
activity but rather are an expression of disappointment on
the part of Anderson that he may have to deal with or
through the Union and of his fear that this would affect the
smooth working operation of his staff. This, however, does
not excuse the unlawful interrogation, and I find that Re-
spondent thereby violated Section 8(a)(1) of the Act.
D. The Discharge of Warren B. Crowder
The General Counsel alleges that the notice of termina-
tion given Crowder on October 30, effective November 30,
was because Crowder had engaged in protected concerted
and/or union activity and the termination of Crowder of
November 9, effective immediately, was because he filed the
charges in this case with the National Labor Relations
Board, and that Respondent thereby violated Section
8(a)(1), (3), and (4) of the Act. The General Counsel asserts
that the reasons given by Respondent for Crowder's dis-
charge, namely, his poor attitude and inadequate work per-
formance are pretextual, relying primarily on Crowder's
employment record and the timing of the notice and final
discharge in relation to the Union's request for recognition
and Crowder's filing of the charges with the National Labor
Relations Board, respectively. For animus, the General
Counsel relies upon the separate instances of unlawful inter-
rogation and threats alleged as independent violations of
Section 8(a)(1) of the Act.
Specific examples of Crowder's attitude and work perfor-
mance cited by Respondent were his attire, his failure to
learn additional job skills on his own in order to qualify
himself for higher positions , his lack of qualifications or
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient experience to fill the position of assistant sports
editor, his claiming overtime worked which had not been
approved in advance, his claiming mileage for use of his
own private automobile to go on assignments without first
attempting to secure a company car, and his slowness in
completing writing assignments.
Crowder was employed by Respondent 5 in May 1972 as
a sports writer-photographer. His entrance salary was $90
for a 40-hour week. Crowder received one $5-a-week raise
after 3 months and another at the end of 1972. In April or
May 1973 he received a $7.50 increase, and in August he
was given a $17.50-a-week increase bringing his salary to
$1'25 which was his salary as a sports writer when his em-
ployment was ended on November 9.
When he was hired, Crowder took the place of two part-
time employees in the sports department. He covered sports
events during weekdays and went on photographer assign-
ments on weekends. In August 1972, weekend photography
work was reassigned so that Crowder could be utilized more
fully as a sports writer. In August 1973, Crowder was as-
signed additional duties generally performed by the assis-
tant sports editor of layout work, headline writing, regular
desk duties, and relieving Marsh on the latter's days off.
From the time Crowder was employed, Marsh directly
supervised his work, at first as assistant sports editor and for
the most part as sports editor. Marsh testified that he had
been very surprised during the first few months of
Crowder's employment because Crowder had displayed
ability far exceeding that of a beginner and superior to that
of any part-time sports writer they had employed. Marsh
stated that within a few weeks Crowder's work was equiva-
lent to one who had been in the job 4 to 6 months. When
Marsh became sports editor in July 1972, Crowder, who had
been employed for only 2 months, asked Marsh to recom-
mend him for the assistant sports editor position. Marsh
declined, explaining that the job of assistant editor was
entirely different from the sports writer-photographer work
Crowder had been doing. He told Crowder the job required
knowledge and ability to perform such skills as picture crop-
ping, page layout, copy editing, copy measuring, headline
writing, and writing cut-lines with pictures. Marsh told
Crowder he did not believe Crowder was yet ready for such
work, but if he wanted to advance Crowder would have to
take the initiative and learn all those elements of dummying
a newspaper page. Shortly thereafter Crowder came to
Marsh and asked to be shown the various procedures and
to learn the basic principles involved in editor work. Marsh
continued for some time instructing Crowder in those skills
so that Crowder, according to Marsh, needed only practice
to improve his speed in performing such work.
5 Crowder and Marsh had known one another as children in school and
for some time Crowder had been attending games with Marsh, using press
credentials and performing miscellaneous services , as well as calling in re-
ports on minor sports events even though he was not employed by Respon-
dent. Crowder had made known to Marsh his interest in employment in the
sports department of Respondent and was with Marsh when the latter
learned that there would be an opening for which Crowder could apply
Marsh coached Crowder on what to say on an interview with Managing
Editor Anderson which the sports editor would arrange. Thus, despite his
protestation to the contrary, Marsh was instrumental in Crowder's employ-
ment.
In July 1973, Crowder learned that Richards, who had
been hired the preceding July as assistant sports editor, was
leaving. He again came to Marsh seeking opportunities to
perform the various tasks of the assistant editor work, ob-
taining any needed instruction from Marsh in performing
such duties. Marsh observed that during August Crowder
appeared to be putting forth a real effort to gain skill in
these various procedures.' In September when Marsh spoke
to Anderson about a replacement for Richards, who left in
August, Marsh told Anderson that Crowder had been trying
hard and been picking up in his work. Anderson, however,
decided to hire Clark, an applicant who had a degree in
journalism, with the intention of moving him to the news
department when an opening occurred, and to divide the
salaries of Richards and Crowder between Crowder and
Clark, thus enabling him to hire Clark at a rate below'the
entrance salary for news reporters, and to give Crowder a
$17.50 raise along with the added duties. Crowder was told
that he and Clark would be equals and the one that showed
the greater ability would become the assistant sports editor.
All newsroom employees keep their own time records and
fill in d report of their time for the preceding week each
Monday at 7 a.m. These are submitted to Anderson, who
must approve them before they are sent to payroll. Ander-
son kept a close watch on cost items, and overtime in partic-
ular, frequently disallowing such claims for various reasons.
As a result dissatisfaction with Respondent's overtime poli-
cy as applied by Anderson was frequently expressed and
discussed among employees. Marsh testified that he had
heard complaints about overtime and that the employees
were working but not claiming overtime worked simply be-
cause they realized it would be too much trouble to claim
and would probably be disallowed anyway.
Anderson had been disallowing any claim for time re-
quired in traveling to and from an assignment even when
the reporters were using the company cars. He told Crowder
that he had checked with the Wage Hour Board and he did
not have to pay reporters for the time required to go to the
locations of events they were covering even though he had
assigned them to go. This was the basis for most of
Crowder's overtime disallowances. On October 3 or 4,
Crowder called the Wage Hour Board, explained the situa-
tion, and was told that under the circumstances described
the Company was liable for compensation for driving time.
Crowder did not confront Anderson with this information
but, thereafter, told Clark and Sullivan of his conversation
with the Wage Hour representative. The three also dis-
cussed the overtime problem generally and decided that in
the future when they worked overtime they were going to
claim it.
Marsh left for his vacation on October 13, leaving Crow-
der and Clark to put out the Saturday afternoon and Sun-
day papers and cover the weekend sports events. On
Monday, October 15, both Crowder and Clark claimed ov-
ertime on their time reports. Anderson immediately chal-
lenged their claims and disallowed time from the cards of
both. Anderson testified he called the two into the sports
cubicle and stated that he was not accusing them of any-
6 Crowder worked the sports editing by himself the last week of August and
the second and third weekends in September when March had to be away.
THE PROGRESS-INDEX 813
thing but that there was a marked similarity on their over- -
time claims and that they had not received advance approv-
al for overtime as Marsh had not requested it before he left
on vacation. According to Anderson, he also told them that
he could not understand their not being able to do the work
they were assigned within the allotted hours, that the pro-
ductivity of the department was low, and that if they could
not do the work there would be some changes made.
Later that morning Crowder went to Anderson's office to
go over the planned feature events for the ensuing week and
asked for Anderson's approval for overtime. Anderson told
Crowder that when it became necessary he would assign
overtime and then they would get it. Crowder expressed the
opinion that Anderson had been unfair with respect to
Clark 's overtime claim since Marsh had been gone , necessi-
tating extra work by both of them .7 Crowder also pointed
out that the overtime matter could have been discussed after
the 10 a.m. deadline for sports copy instead of during the
early morning when they were rushed. Anderson replied
that perhaps he had overreacted.
On Wednesday, October 17, in accordance with the cus-
tom in the sports department, Crowder conferred with An-
derson with respect to the schedule for the following week.
Anderson eliminated most of the proposed attendance of
events, requiring the sports department to take their stories
from the wire services. Marsh called Crowder by telephone
that day and Crowder told him of Anderson's reaction to
their overtime claim and that both he and Clark were think-
ing of quitting. Marsh asked Crowder not to do anything
foolish and to wait until he returned. Crowder told Marsh
of the information he had received from the Wage Hour
representative, both with respect to the travel time Ander-
son had been disallowing and concerning another matter on
which he had made inquiry on Marsh's behalf. Crowder also
stated that Anderson had been very hostile and that he,
Crowder, had started to prepare a resume for the purpose
of making inquiries for another job. He asked Marsh to
assist him in this respect . Marsh indicated he would do so
upon his return. After this conversation with Marsh, Crow-
der began placing phone calls to acquaintances at other
newspapers inquiring of job vacancies.
On October 22, Anderson summoned Crowder into his
office to discuss Crowder's claim for 10 hours of overtime
which Crowder had reported that morning, for the previous
week's work during which he had been unable to take a day
off because of Marsh's absence.8 Anderson told Crowder
7 With respect to Clark's claimed time , Crowder recalled that Anderson
had taken away the travel time to and from the game Clark covered and a
half hour because Clark admitted he had eaten a sandwich in the pressbox
while he was reviewing statistics Crowder 's recollection failed with respect
to any time disallowed on his claim until he was shown the card He then
recalled that he had not agreed with Anderson but regarded the amount of
time questioned ( 1-1/2 hours) too insignificant to argue about
8 Employees in the sports department generally work 5 days a week with
Sunday and 1 day off Marsh usually took Saturday, and either Clark or
Crowder would take Monday with the other choosing another day In dis-
cussing Crowder's overtime , Anderson stated that from 7 a . m. to 12 noon was
too long to get out a newspaper Crowder reminded him that the deadline
was 10 a in. and that after that he opened mail, handled calls, planned future
stories , and performed general routine and back shop work , that this was
what they had always done , and that it was Anderson 's directive that they
stay "on the desk" until noon . Anderson retorted they did not have to spend
so much time in the'back shop Crowder stated that this was the way it had
that he thought there was a conspiracy to turn in overtime
claims, that he regarded Crowder's attitude as bad, and that
Crowder should be willing to do whatever work there was
to be done without regard to how long it takes-concluding
that those were the people who get promotions and get
ahead.- Crowder told Anderson they did not consider ,it a
conspiracy but that several of the employees had decided'
that from then on when they were required to work overtime
they would turn in their claim and expect to be paid for it.
Anderson replied that this conspiracy was obviously more
serious than he thought , and that this was something he
would have to think about. He told Crowder he would speak
to Crowder further about it in a couple of weeks and, in the
meantime, Crowder had better behave himself or he might
be looking for another job.
Marsh testified that when he arrived at the office on
October 22 Anderson told him there had been trouble while
he was away about overtime and he told Anderson that
Crowder reported he and Clark had been accused of getting
together on the timecards. Anderson then stated he had
decided, even though it was football season, to call Crowder
in and fire him. Marsh further testified that when Crowder
emerged from Anderson's office around noon Crowder told
Marsh he wanted Marsh's help in getting another job.
Anderson testified that on the morning of October 22, he
told Marsh he was going to give Crowder notice and Marsh
protested it was a bad time because the sports department
was busy, but if that was Anderson's decision he would
prefer that Anderson pay the man off rather than have him
remain on the job after receiving notice. With respect to the
conference with Crowder, Anderson testified he closed the
door for privacy and then told Crowder he did not believe
Crowder had a future in the newspaper business, particular-
ly with the Respondent; that the sports department was
hurting and that Crowder was being given a month's notice.
Crowder asked him to extend the time because Crowder had
a chance for a job around the first of the year. Anderson
told Crowder he knew Crowder was thinking of the year-
end bonus and that he could make no decision on this and
"would have to check on that." He then told Crowder that
in about 2 weeks he would reevaluate the situation and
make a determination whether or not Crowder could stay
longer than a month. Anderson stated that he always gave
employees a month's notice, but he remembered what
Marsh had said about an employee becoming worthless
after he received notice and he felt that if in 2 weeks Crow-
der showed he would make an attempt, then Anderson
would give him longer, which together with his vacation
time would bring him closer to the time Crowder would be
going on the other job. Anderson denied that he discussed
the subject of conspiracy although he did recall that he
referred to the overtime Crowder had just turned in for the
preceding week as an example of what he called Crowder's
bad attitude.
After Crowder left his office, according to Anderson, he
called Publisher Josey because Josey keeps records in his
always been done . Anderson then turned to the subject of attitude, which
embraced accusations of clock watching with insufficient concern about
doing things for the Company. Crowder expressed his willingness to work
and his expectation to be paid for it At this point Anderson raised the
conspiracy accusation
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office of all the people in Anderson's department. When he
received no answer, Anderson assertedly "jotted a memo to
Josey," then took it to Josey's office. In this memo, Ander-
son inquired for authority to pay Crowder a year-end bo-
nus. The next morning Anderson spoke to Josey in person
and Josey approved, placing a notation and date of October
23 on the bottom of Anderson's memo and handing it back
to Anderson. The memo, so noted, was received into evi-
dence.
There had been talk about union representation among
the newsroom staff from the time Crowder was first em-
ployed. Crowder had discussed with Marsh the subject of
seeking union representation and had attended a meeting
with him and a group of employees for that purpose, before
Marsh became a supervisor. Sometime in April or May
1973, prompted by another such conversation with Marsh,
Crowder called the Newspaper Guild in Washington, and
was told that someone would contact him later because at
that time they were involved with a strike at an Alexandria,
Virginia, paper. Crowder did not hear from the Guild and
did not have sufficient information on which to proceed.
Thus, early in October, in another such discussion, Marsh
suggested to Crowder that he call the Guild office again and
obtain information as to the procedures employees would
be required to follow to bring the Guild in as their represen-
tative in the newsroom of Progress-Index. Crowder made
several such calls and was given to understand that because
of the small size of the newsroom the Guild would not be
interested in representing them unless they would organize
the rest of the newspaper, i.e., the business office, advertis-
ing, mailroom, and circulation department, as well as the
newsroom. Crowder discussed this with Marsh and together
they concluded there would not be sufficient support among
the more comprehensive group, and that they should look
for a union that would be willing to represent only the
newsroom. In the course of these conversations Marsh sug-
gested that Crowder might go to the "back shop," where the
employees were represented by Local 26, ITU, and ask the
local president, Manley Drumheller, if that Union would
help them organize. As an alternative to the Guild had not
yet been located, Crowder did not act on this suggestion
until October 25, on which date he spoke to Drumheller
while he was in the shop in connection with the sports page
layout.
Crowder asked Drumheller whether the ITU would be
sympathetic and help in any way they could if the news-
room employees were to try to organize a union. In the
course of this conversation, Drumheller learned that they
had no particular union and mentioned that the ITU was
in the process of opening a new associate membership ar-
rangement which would cover newsroom employees. Con-
sequently, Jimmy Woad, International representative of the
ITU, contacted Crowder that night and a meeting with
newsroom employees of Respondent was set for the follow-
ing afternoon at Crowder's apartment. The entire news
staff, the sports staff, and the photographer attended and all
signed membership applications. The meeting lasted about
3 hours. In the middle of the meeting, Marsh called Crowder
to inquire how things were going. Crowder told Marsh they
were still in the middle of the meeting and he would tell
Marsh about it later.9 When he returned to the group, Crow-
-der reported that the call had been from Marsh. There
followed discussions of whether Marsh should be told any-
thing further about their activity and a discussion of wheth-
er Marsh and several others would be eligible for inclusion
or would be excluded as supervisors. Many of the employ-
ees present already knew of Marsh's interest and that he
knew of their activities. Later that evening Crowder told
Marsh that the employees had signed to join the ITU and
that the Union would be sending a letter to the publisher
either Saturday or Monday.
On October 29, the Union's recognition demand was
mailed to Respondent and the latter sent its response on
October 30, suggesting that the Union pursue the Board
certification procedure. That morning Crowder told Marsh
that Mr. Josey had received a bombshell in the mail, the
Union's demand letter.
At about 10 a.m. on October 30, Anderson summoned
Crowder and Marsh to his office. When they entered, An-
derson asked Crowder what was his understanding of their
previous conversation of October 22. Crowder told Ander-
son it was understood that Anderson was going to take
several weeks to think over the conspiracy matter and then
talk to him about it. Anderson said that was not correct, and
asked Crowder if he did not remember that Anderson had
given him notice on October 22. When Crowder indicated
he had no such understanding, Anderson turned to Marsh
and said, "I should have had somebody else in here to
witness that. I just knew he wouldn't understand." Ander-
son then turned to Crowder and said, "Well, I am giving you
notice. Your attitude is bad." Anderson went on to tell
Crowder he was too worried about the clock, about over-
time, he was not interested in the job, that his main concern
was money. A discussion followed in which Crowder de-
fended the necessity for his concern for compensation and
reminded Anderson of incidents when he had been re-
proached by Anderson for doing stories and taking pho-
tographs on his own. Anderson° told Crowder he had talked
to Marsh who told him that the sports department needed
an assistant sports editor and he did not think Crowder was
ready to do that job. Crowder reminded Anderson that late
in August when Richards left and Anderson hired Clark he
had called Crowder into his office and told Crowder that he
would be getting a raise and that in 2 or 3 months he
(Anderson) would decide which of them should get the
number twojob, indicating that it would go to whichever
one showed more ability. Crowder questioned Anderson
why, if in August he considered Crowder's 18 months of
experience and Clark with no experience a sufficient prereq-
uisite for the job, he now suddenly decided upon the neces-
sity for so much experience. Anderson stated he just
changed his mind and it was going to be that way. Crowder
then reminded Anderson that he was not hired as an assis-
tant sports editor and asked why he was being fired because
he did not now qualify to receive that job. Anderson replied,
"Well, I just don't like your attitude."
9 Marsh admitted making the phone call to Crowder's apartment on Octo-
ber 26, but asserted it was merely to leave a message for Sullivan, the nature
of which he could not recall. Marsh denied that he knew there was a union
meeting in progress, or that he had been involved in the conversations with
Crowder concerning the Guild I do not credit Marsh in this respect
THE PROGRESS-INDEX 815
Anderson then pulled out his calander and asked when
Crowder could find another job. Crowder, who had been
looking since the October 15 encounter with Anderson, re-
plied it would be around the first of the year . Anderson
protested that this would be too long and stated he could
let Crowder stay until November 30, and at that time, with
his vacation time he would get about 4 weeks of pay. Then
Anderson added : "This is not a threat , but you are going to
need a reference from us to get a job , and if you go back
out there and stir up any more trouble with those people
before November 16, I am going to give you 2 weeks notice
.... " Crowder testified he did not understand this to
mean that he would still have 2 weeks after November 16.
Crowder testified that Marsh did not participate in the con-
versation except at one point when Anderson asked him
what he thought and Marsh said, "Well naturally Crowder
did not have as much experience as somebody that had been
in the business for 10 years like Dad did , or somebody who
had been in the business 5 or 6 years." Crowder further
testified that after this meeting he and Marsh went to lunch
together at which time they discussed the meeting with An-
derson . Marsh said that it was a shame ; everything had been
going very well, they had been getting a lot of compliments,
and were not having problems. Marsh also stated that An-
derson had tried to get him to "put the screws " on Crowder
to say some critical thing about Crowder 's work, but he was
not doing so because he was not going to get caught in the
middle.
Marsh quoted Anderson as opening the meeting with the
statement : "Harry, I have gotten the two of you together to
work out the date when Warren will be leaving," he then
turned to Crowder and said, "You understand, we will try
to work with you and then you will be gone." Crowder
protested he had no such understanding, that he had under-
stood Anderson to have given him a warning on October 22.
Anderson stated, "I gave you notice and told you that we
were going to work out the dates, and that is what we are
going to do now." There followed a 45 -minute discussion on
why Crowder was being fired. Finally, Anderson refused to
discuss it further , stating they were not there to argue but
to set up a date. He told Crowder the date would be around
the first of December and, if Crowder was worried about his
Christmas bonus, Anderson thought he could get Crowder
his Christmas bonus and Crowder would be paid through
the first of the year. Anderson asked Marsh if this was all
right with him and Marsh replied that it was if Crowder
would work. Anderson told Crowder that if he refused to do
his work or caused any problems then he would be terminat-
ed on the spot with a 2-week notice but that he would pay
him for those other weeks that he had due. After Crowder
left, Marsh remained and told Anderson he did not approve
of what Anderson was doing and did not like the idea of
firing somebody then allowing them to remain for a long
period of time; it was his experience that this did not work.
Anderson stated that if Marsh had any problems and if
Crowder refused to do his work to let him know and he
would end it right there.
Anderson testified that he opened the October meeting
with the statement : "Now, I said that within a couple of
weeks I would make the decision whether Warren would
stay longer or not, and I want to come down to make the
decision right now as to what we are going to do and what
date we are going to set," and it was at this point that
Crowder differed with him as to what had occurred on
October 22 . Anderson gave Crowder notice of termination
effective November 30. Then they discussed what vacation
time Crowder had coming and Marsh stated it was 3 weeks
because Crowder had not taken a vacation. There was dis-
cussion calculating that with vacation time and the bonus
the pay would take Crowder into January when he had a job
possibility. Then, thinking Crowder might "lay down on the
job," Anderson added he was specifying that he still could
give Crowder a 2-week termination any time prior to the
middle of November.
On Monday, November 5, Crowder accompanied the
union officials to the Regional Office of the Board to file the
representation petition and while there filed the charge
herein. Crowder received in the mail on Thursday, Novem-
ber 8, his copy of the Board's letter notifying Respondent
of the charge. Early Friday morning, November 9, Ander-
son came to the desk where Crowder was writing sports
page headlines for that day's issue of the newspaper and
said he wished to speak to Crowder when the latter was
finished with what he was doing. When Crowder entered
Anderson's office, Anderson handed him the written notice
of discharge and told him to fill out a timecard for the week.
When he did so, Anderson gave Crowder a check. By this
letter Crowder was terminated effective November 24 but
not to report to work after November 9. The check was for
$742.46. It is not clear whether this included the year-end
bonus.
Clark testified that after Crowder received his 30-day
notice Clark made known his concern that his job, too,
might be in jeopardy because he had been involved in the
overtime claim and had been called "on the carpet" along
with Crowder. Marsh invited him to lunch and assured him
that he was not in the same category as Crowder; that he
was in reasonably good standing with the Company; and
that the matter with Crowder had been building up over a
long period of time and had'nothing to do with overtime or
the Union. Clark stated this took place after the activity
with the ITU commenced and after the letter was sent to the
Respondent by the ITU.
According to Marsh, during their mid-week conference
following the October 22 conversation between Anderson
and Crowder, Anderson told Marsh that he had given
Crowder a couple of weeks and had made a decision to
reevaluate him. Anderson later told him Crowder had come
to work several days "real sloppy," and Anderson felt they
would have to get together and determine exactly when
Crowder would be leaving. On Monday, October 29, Ander-
son approached Marsh stating he wanted to get together
with Crowder to set the date Crowder would leave and
Marsh told him Crowder was not working that day.
Anderson testified that after Crowder was given notice on
October 30 Marsh reported that Crowder was being sarcas-
tic, and had disappeared from the office for a time. After
Crowder had appeared at the office wearing a jersey which
Anderson had requested him not to wear to the office over
a year before, Anderson decided to request from Josey per-
mission to discharge Crowder immediately. He did so on
November 7. Josey told Anderson to wait and they would
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss the matter with the industrial relations representa-
tive of the parent company who was arriving the next day
to advise them in connection with the representation claim
of the Union. On November 8, Anderson was told to have
the accountant draw up a check for Crowder when he ar-
rived the next morning and for Anderson to write a dismiss-
al letter and give both to Crowder as soon as he arrived the
next morning. Anderson obtained the check from the ac-
countant at about 8:30 the next morning and thereafter
delivered both to Crowder. Anderson acknowleged his mis-
take as to date of dismissal notice stated in the letter and
that his failure to sign the notice was an oversight.
On November 9, an official notice was given the news
staff stating that all overtime would have to' be cleared in
advance.-Marsh testified that such notice was merely a re-
minder of the existing policy.
Crowder testified that in each conversation with Ander-
son wherein money was involved, whether it was when he
asked for a promotion or a raise which he did on several
occasions or when discussing his claims for overtime or
mileage, Anderson always raised the question of attitude.
Marsh asserted in his testimony that Crowder would at-
tempt to gain added skills and put forth effort when a job
opening was in sight but between times would revert to just
doing his job rather than practicing to gain skill and speed
in work required of an assistant sports editor.
Anderson testified, with respect to Crowder's attitude,
that when Richards was hired in 1972 he told Crowder
about the dedication that was required in the newspaper
field. Anderson stated he had a similar conversation with
Crowder when the latter had approached him for a raise. In
July 1972 and on one prior occasion, he had spoken to
Crowder about his attire and told him to wear a shirt and
tie to work. Again in the spring of 1973, he talked to Crow-
der about applying himself to become more important to his
editor and learn to do more tasks to help his editor. At that
time Anderson pointed out to Crowder that his was not
really a job in which one could make enough money to
support himself or in which there was a future, and suggest-
ed that Crowder get a moonlighting job. In June 1973, and
again in August, Anderson questioned Crowder's mileage
claim for use of his personal car and was told by Marsh that
company automobiles were not readily available and
Crowder's car was air-conditioned whereas the company
cars were not. Anderson spoke to Crowder and told him he
would have to first request a company car before mileage
would be allowed.
Except for areas in which the facts might tend to reveal
a certain duplicity on his part, Marsh appeared to attempt
an accurate recollection of events and statements made on
specific occasions. Thus, he clearly did not wish to be asso-
ciated with Crowder's initial employment and with recom-
mending Crowder for promotion and, above all, he did not
want to be revealed as having encouraged, been interested
in, or even possessed knowledge of the union organizational
interests and activities of the employees.
Anderson, on the other hand, impressed me as a particu-
larly unreliable witness, substantially unable to separate his
own attitudes, reasoning, and thinking processes from what
actually happened and what was stated. He seemed con-
cerned with casting everything in a light most favorable to
him in order to justify his own conduct. I am convinced that
Anderson purposefully encompassed in his recital of the
October 22 conversation with Crowder statements and
events that were related to the October 30 conference in
order to establish that he gave notice to Crowder at the
earlier date before Crowder's contact with the ITU and
before the Union organized the employees.
Both Marsh and Anderson related alleged conversations
between themselves in an attempt to establish Anderson's
version of the timing of the initial discharge notice to Crow-
der and as proof of his inadequacies. Such conversations, I
find, are of little, value to serve these purposes as they were
private communications between management officials
which were clearly self-serving in character. This testimony
did, however, reveal by the extent of their inconsistencies
that much of such testimony was not based on actual events.
Anderson's memo to Josey and the dating of the latter's
notation thereon gives me great pause. On its face it would
appear to be documentary verification of Anderson's ver-
sion of his conversation with Crowder on October 22. How-
ever, the authenticity of at least the dates on the document
is suspect. The testimony is that Respondent does not make
written records of evaluations, recommendations, or similar
personnel matters, and that the few written communications
which occur because of inability immediately to make per-
sonal or telephonic contact ,are as a ,rule thrown in the
wastebasket after communication is established. If this was
the circumstances which brought about the Anderson mem-
orandum to Josey dated October 22 concerning Crowder's
year-end bonus, as Anderson asserts, there is no explana-
tion as to why it was found necessary to date it as if it were
to establish a record for posterity, or why, after Josey spoke
to Anderson in person about the question raised and gave
his verbal approval, he also found it necessary to-write his
approval at the bottom of the memo, date and initial it, and
then return the memo to Anderson, who then kept it. Of
course, no copy was provided Crowder although he was the
person most involved. I am also mindful that no records, not
even this document, were submitted to the General Counsel
pursuant to the latter's subpena for such documents, and
that the representation was made to him that Respondent
kept no such records. All of these circumstances cast doubt
upon the authenticity of the document in question. This
doubt is strengthened by Respondent's own witness, for
Marsh, who was not present at the October 22 conference,
in relating the contents of the October 30 conference places
that date as the one in which Anderson mentioned the year-
end bonus and stated he "thought" he could get this for
Crowder. If the matter had been brought up at the October
22 meeting and Anderson acted on it as promptly as his
memorandum and Josey's initialed note would suggest,
there is no explanation for Anderson's uncertainty at this
late date. In all the circumstances, I find the Anderson
memorandum regarding the bonus of no value in determin-
ing the issues involved in this case, and no support for
Anderson's credibility.
Accordingly, I accept Anderson's testimony only where
it reveals information against his own interest or where it is
consistent with the weight of credible testimony. I discredit
Marsh specifically with respect to those areas identified
above, and otherwise weigh his testimony in the light of the
THE PROGRESS-INDEX 817
credited testimony of other witnesses and the probabilities
inherent in the entire record.
On the basis of his demeanor and substantial corrobora-
tion by other credited witnesses, as well as the probabilities
when all the credited testimony is considered, I find Crow-
der a credible witness, and that, for the most part, he pre-
sented an accurate and straightforward account of the
relevant events.
I accept Crowder's version of the October 22 conference
with Anderson and find that the statements made by Ander-
son to Crowder at the end of that meeting constituted
threats of job jeopardy for Crowder's part in engaging in a
suspected conspiracy to claim overtime, which I find was
protected concerted activity. Accordingly, I hold that Re-
spondent thereby violated Section 8(a)(1) of the Act.
The Respondent's asserted reasons for giving Crowder a
notice of discharge do not withstand scrutiny. Except for
the so-called overtime conspiracy, the matters alleged ex-
isted concurrent with Crowder's advance iii wages and re-
sponsibilities. The wearing of a casual shirt had occurred at
least twice before over Crowder's 18 months of employment
and Respondent admittedly did not have a set rule gov-
erning attire. Perhaps Crowder approached Anderson more
frequently for a raise, which the evidence discloses was, to
Anderson, the equivalent of a bad attitude, but there is no
indication that he did so since his last raise of $17.50, which
was an amount far in excess of any raise Anderson had ever
given an employee in the sports department. Moreover,
there is no indication that Respondent regarded asking for
a raise as a dischargeable offense. The matter of Crowder's
having used his personal car and claiming the mileage was
something that had been dealt with in the summer and had
become past history as it too preceded Crowder's $17.50
raise. So far as Crowder's alleged failure to take the initia-
tive and learn new skills is concerned, the record indicates
the contrary to be the case. When, after 2 months on the job,
he learned that this was expected of him he promptly
learned such skills from Marsh. That he possessed them is
demonstrated by the fact that even before such additional
duties were assigned to him along with the $17.50 raise,
Crowder handled the entire sports department alone for a
full week in August and for 2 weekends in September. Even
for the week preceding his discharge, he not only was per-
forming the assistant sports editor's duties but had taken on
those of the editor as well. Attempts to show that he was
deficient in this respect revealed that with his meager experi-
ence he was making no more, and no more serious, errors
as the sports editor than his counterpart and predecessors
had made. Thus, allegations as to his lack of qualifications
for the assistant editor's job also fall on the basis of the same
evidence. 10 Moreover, Clark who was supposedly in compe-
tition with him for assistant editor was retained even though
he had no knowledge or skill in this area. The fact that
Marsh had reported Clark's writing ability superior to
Crowder's is of little relevance since Anderson intended
from the beginning to place Clark on the news staff . Finally,
it is asserted that he was too slow, yet there is no showing
that he was unable to meet the established deadline. Ac-
cordingly, I must conclude that the reasons advanced by
Respondent for Crowder's discharge were pretextual.
Respondent's union animus is demonstrated by the vari-
ous conduct found above to constitute violations of Section
8(a)(1). With respect to knowledge, at first Anderson denied
he had any suspicion of union organizing activity in the
newsroom' at any time prior to Crowder's termination on
November 9. He later testified that he first learned of union
organizing activity 'shortly after the October 30 conference
with Crowder and Marsh. He relates this to a call from
Josey on the direct line just before they finished, their con-
ference, and testified that when they finished he went to
Josey's office at which time Josey handed him the letter
demanding recognition and stated, "Your reporters are or-
ganizing."
There is no question of Marsh's knowledge of the employ-
ee activity from the very beginning, and the fact that Crow-
der not only told him the letter from the Union was
forthcoming but also announced to him that morning that
Josey had received the letter. I attribute Marsh's knowledge
to Respondent. He not only is an admitted supervisor but,
by his own testimony and that of Anderson, was prone to
discuss with Anderson every minute detail, even such mat-
ters as when Crowder took 5 minutes to get a picture from
the file for him and when Crowder used sarcastic language.
The inference is that he likewise informed Anderson of what
he learned concerning the union activity.
Although it would appear that Anderson did have a real
antipathy to Crowder, I find that the decision to discharge
him grew out of Respondent's knowledge that Crowder was
instrumental in organizing the newsroom employees on the
preceding Friday. That Anderson may not have known that
the demand letter had actually arrived is immaterial. Marsh,
and presumably Anderson, knew it was coming if Crowder
could be believed in his reports to Marsh. Accordingly, I
find that the verbal notice of discharge was given to Crow-
der on October 30, effective November 30, not on October
22, and was because of his union activity, in violation of
Section 8(a)(3) and (1) of the Act.1[
Crowder's accelerated immediate discharge on Novem-
ber 9 followed the very next day after Crowder received his
copy of the National Labor Relations Board letter covering
his unfair labor practice charge. I find no warrant for ac-
cepting Respondent's assertion that it did not receive the
National Labor Relations Board letter on the same day,
particularly in view of the fact that the post office is across
the street from Respondent's building. The assertion that
Anderson decided to take such a drastic and precipitous
action on the basis of Marsh's flimsy and petty complaints,
and the fact that Crowder wore a sport shirt to the office one
ie
The asserted anxiety of Anderson and Marsh to hire a more experienced
person for this job because of the pressures of work during the football
season, and Marsh's repeated complaints that he needed more experienced
help, hardly bear mention in light of the fact that, although Marsh denied
Crowder the request for vacation time because of the football season, Marsh
himself took a vacation as well as some weekends, leaving the work to
Crowder and Clark
11 My conviction that the union activity was the real motive is based in part
on the fact that both Crowder and Clark had been identified by Anderson
as involved in the overtime conspiracy, yet Marsh could assure Clark that his
job was not in jeopardy. Even were it to be found that the overtime incident
was the real cause, the discharge for that reason would have been for protect-
ed concerted activity in violation of Sec. 8(a)(1) and would require the same
remedy.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, variously identified as while Marsh was on vacation
and as after October 30, are viewed as pretextual particular-
ly in light of Anderson's repeated assertions that he always
gave a 30-day notice and that he really wanted to give
Crowder the year-end bonus because he wanted to be fair
to Crowder. Significantly, although initially the discharge
decision and the date of release were assertedly Anderson's,
he now purportedly found it necessary to consult with Jo-
sey.
I believe the record supports the inference that it was
Crowder's having filed the charge and thus caused more
trouble, something Anderson had warned him against at the
October 30 conference, that caused Respondent to advance
the discharge date to November 9. Accordingly, I find that
Respondent advanced the discharge date on November 9 in
violation of Section 8(a)(4) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Progress-Index, Petersburg Division of the Inde-
pendent, Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Petersburg Typographical Union No. 26, Internation-
al Typographical Union; AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By coercive interrogation of employees and threats of
reprisals for union activity and for protected concerted ac-
tivity, found above, Respondent has committed unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By discriminating in regard to the tenure of employ-
ment of Warren B. Crowder because of his concerted and
union activity, Respondent has violated Section 8(a)(1) and
(3) of the Act.
5. By discriminating in regard to the tenure of employ-
ment of Warren B. Crowder because he filed a charge
against the Respondent with the National Labor Relations
Board, Respondent has engaged in unfair labor practices
proscribed by Section 8(a)(4) of the Act.
6. The above-designated unfair labor practices affect
commerce within the contemplation of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent illegally discriminated
against Warren B. Crowder in violation of Section 8(a)(1),
(3), and (4) of the Act, I shall recommend that Respondent
be ordered to offer him immediate and full reinstatement to
his former position or, if such position no longer exists, to
one which is substantially equivalent thereto, without preju-
dice to any seniority or other rights and privileges, and that
he be compensated for any loss of earnings he may have
suffered by reason of the discrimination against him. Back-
pay shall be computed in accordance with the formula and
methods prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and payment of 6-percent inter-
est per annum shall be computed in the manner prescribed
by the Board in Isis Plumbing & Heating Co., 138 NLRB 176
(1962). In view of the nature of the unfair labor practices
herein found, which clearly demonstrates a proclivity to
violate the Act, Respondent shall be further ordered to
cease and desist from "in any manner" infringing upon the
rights guaranteed its employees by Section 7 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:
ORDER12
Respondent, The Progress-Index, Petersburg Division of
the Independent, Inc., Petersburg, Virginia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership, activities, and desires, or those of fellow
employees.
(b) Threatening employees with discharge for engaging
in union organizing activities and for engaging in protected
concerted activities.
(c) Discouraging membership in the Union by discharg-
ing employees or otherwise discriminating in any manner in
respect to their tenure of employment or any term or condi-
tion of employment for engaging in protected concerted
activity or union activity.
(d) Discharging or otherwise discriminating against em-
ployees who have filed charges under the Act.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Warren B. Crowder immediate and full rein-
statement to his former position or, if such position no
longer exists, to one which is substantially equivalent there-
to, without prejudice to any seniority or other rights and
privileges, and make him whole for any loss of pay he may
have suffered by reason of the discrimination against him
with interest at the rate of 6 percent, as provided in the
section above, entitled "The Remedy."
(b) Post at its premises at Petersburg, Virginia, copies of
the notice marked "Appendix."13 Copies of said notice, to
be furnished by the Regional Director for Region 5, shall,
after being duly signed by an authorized representative of
Respondent, be posted immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings , conclusions , recommendations,
and recommended Order herein shall, as provided in Sec 102.48 of said
Rules and Regulations, be adopted by the Board and become its findings,
conclusions, and Order, and all objections thereto shall be deemed waived
for all purposes
13 In the event that 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
National 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 "
THE PROGRESS -INDEX 819
employees are customarily posted . Respondent shall take
reasonable steps to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Preserve and, upon request , make available to the
Board or its agents, for examining and copying, all payroll
records and reports and all other records necessary to ascer-
tain and compute the amount , if any, of backpay due under
the terms of this Order.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order , what steps have
been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Warren B . Crowder immediate and full
reinstatement to his former position or its equivalent
without prejudice to his seniority or other rights and
privileges , and compensate him for any loss of pay
suffered by reason of his termination , with interest
thereon at 6 percent per annum.
WE WILL _NOT discharge or otherwise discriminate
against our employees because of their concerted or
union activity or because they file charges with the
National Labor Relations Board.
WE WILL NOT coercively interrogate our employees
concerning their union membership , activities , and de-
sires or that of their fellow employees.
WE WILL NOT threaten employees with discharge for
engaging in union activities or for engaging in protect-
ed concerted activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of rights
guaranteed to them in Section 7 of the National Labor
Relations Act.
All our employees are free to become, remain, or refrain
from becoming or remaining members of Petersburg Typo-
graphical Union No. 26, International Typographical
Union, AFL-CIO, or any other labor organization.
Dated By
THE PROGRESS INDEX, PETERS-
BURG, DIVISION OF THE INDE-
PENDENT, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Charles Center , Federal Building,
Room 1019 , Baltimore , Maryland 21201 , Telephone 301-
962-2822.