The Methodist Publishing House

National Labor Relations Board - Board Decisions

Jan 25, 1961

129 N.L.R.B. 1420 (N.L.R.B. 1961)

1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause that unit is the one most recently certified but because, as we
view it, the parties have, in fact, continued to bargain on a two-unit
basis following their consent to an election in one of the two. The
contract entered into with the two unions after the 19,58 consent elec-
tion provides for a chief steward "for each signatory unit," and lists
the various employee classifications by union jurisdiction. The record
contains no evidence as to how the actual bargaining has been carried
on, whether by joint-bargaining sessions or in what manner. In the
circumstances we would find that the contract entered into in 1958
after the consent election actually sets up separate units rather than
an overall production and maintenance unit jointly represented by
the two unions to the contract. Thus the unit here sought for de-
certification, which is one of the separate units under the contract as
well as the last unit certified, is the appropriate unit for an election .4
4 Compare The Langenau Manufacturing Company , 115 NLRB 971 , 973, where the
Board ordered decertification in the overall unit based upon its finding that the employees
had actually been jointly represented by the two unions there involved and the bargain-
ing contract clearly covered a single unit.
Board of Publication of the Methodist Church d /b/a The Meth-
odist Publishing House and Office and Professional Employees
International Union , Local No. 3, AFL-CIO and Warehouse
Union, Local No. 860 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America. Case No.
20-CA-1811. January 25, 1961
DECISION AND ORDER
On August 11, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and the Respondent and the
Charging Party filed briefs.'
'Respondent ' s request for oral argument is denied as, in our opinion , the record , excep-
tions , and briefs adequately present the position of the parties.
In its brief, Respondent moved to reopen the record to allow Respondent (1) "to in-
quire into the possibility that the union testimony was fabricated in view of the time
elapsed between the discharges and the filing of the charges , and in view of the uncer-
tainty as to the result of the impending election," and (2) to inquire into the arrest of
William Butler , a discriminatee herein, for "an alleged violation " of the -California Penal
Code. At the hearing , the Trial Examiner excluded evidence concerning these matters.
The Respondent contends that the exclusion of such evidence constituted bias on the part
of the Trial Examiner . As to ( 1), the fact that the charges might have been filed to
stave off possible defeat in the impending election , as the Respondent asserts, is not
relevant to the question of whether an unfair labor practice has actually been committed
129 NLRB No. 176.
THE METHODIST PUBLISHING HOUSE 1421
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings,2 conclusions, and recommenda-
tions 3 of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Board of Publication of the
Methodist Church d/b/a The Methodist Publishing House, San Fran-
cisco, California, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the Unions, or in any other labor
organization of its employees, by discriminating in regard to hire or
tenure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the Unions or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such rights may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment in the manner and to the extent
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
by Respondent . With respect to (2),- testimony concerning arrests as distinguished from
Convictions is inadmissible . See Martel Mills Cciporateon , 118 NLRB 618, 632 Accord-
ingly, we conclude that the Trial Examiner did not exhibit bias in excluding the fore-
going evidence , and we deny the motion to reopen
2 In adopting the Trial Examiner 's finding that the Respondent violated Section
8(a) (3) of the Act by discriminatorily discharging William Paul , William Butler, and
Barth Austin , Member Rodgers relies exclusively upon the credited testimony of Clinton
Swain that he overheard Respondent ' s regional manager , J E Bain , state that three men
were discharged because of their suspected involvement with the Unions, and does not rely
upon the inferences of company knowledge of their union activity drawn by the Trial
Examiner.
3 Respondent excepted to the Trial Examiner 's recommended broad cease-and - desist
order. As discriminatory discharges , such as are involved herein, "go to the very heart
of the Act," we overrule the exception thereto See Ideal Baking Baking Company, Inc„
123 NLRB 1799, 1800, footnote 1.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to William Paul, William Butler, and Barth Austin im-
mediate and full reinstatement each to his former or substantially
equivalent position and make each whole for any loss of earnings in
the manner set forth in the section, of the Intermediate Report entitled
"The Remedy."
(b) Make available, upon request, to the Board or its agents all
social security payment records, payroll records, personnel records
and reports, and all other data convenient for a computation of back-
pay due.
(c) Post at its offices in San Francisco, California, copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by the Respondent, be posted by it im-
mediately upon receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are posted. Reasonable steps shall betaken
by the Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EIKPLOYEEs
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that :
WE WILL offer, to William Paul, William Butler, and Barth
Austin, immediate and full reinstatement each to his former or
substantially equivalent position without prejudice to seniority or
other rights and privileges and make each of them whole for any
loss of earnings sustained by reason of the discrimination against
them.
WE WILL NOT by means of discharge or in any other manner
interfere with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form, join, or assist Office
and Professional Employees International Union, Local No. 3,
AFL-CIO or Warehouse Union, Local No. 860, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
THE METHODIST PUBLISHING HOUSE 1423
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection , and to refrain from any or all
such activities except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of
the Act, as modified by the Labor -Management Reporting and
Disclosure Act of 1959.
All our employees are free to become or remain , or refrain from be-
coming or remaining , members of the above -named Unions or any
other labor organization . We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment
against any employee because of membership in or activity in behalf
of any labor organization.
BOARD OF PUBLICATION OF THE METHODIST
CHURCH d/b/a THE METHODIST PUBLISH-
ING HOUSE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried before me in San Francisco, California, on May 25 and 27,
1960. At issue is whether Board of Publication of the Methodist Church d/b/a The
Methodist Publishing House, herein the Respondent, discharged William Paul, Wil-
liam Butler, and Barth Austin because they joined or assisted Office and Professional
Employees International Union, Local No. 3, AFL-CIO, or Warehouse Union,
Local No. 860, International Brotherhood of Chauffeurs, Teamsters, Warehousemen,
and Helpers of America, herein the Unions, or engaged in other concerted protected
activity. The complaint of the General Counsel upon a charge filed by the Unions
alleges that the Respondent has thus engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein the Act.
Briefs have been received from all counsel. The unopposed motion of counsel
for the Respondent to correct the transcript in certain particulars is granted except
as to the correction on page 61. The transcript is accurate at that point.
Upon the entire record in the case, and from my observations of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Tennessee corporation with its headquarters office in Nash-
ville, Tennessee. It operates retail stores, places of business, warehouses, and other
facilities at several points in the United States including a retail store and warehouse
in San Francisco, California, where the unfair labor practices are alleged to have
occurred. The Respondent prints, publishes, sells, and distributes, books, magazines,
motion pictures, and other products of an informational character. During the
past year, the Respondent in its San Francisco operations, manufactured, sold, and
distributed products valued in excess of $500,000 and shipped such products having
a value in excess of $50,000 from San Francisco to points outside of the State of
California. I find that Respondent's operations affect commerce within the meaning
of Section 2(6) and (7) of the Act.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Unions are labor organizations admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
In early February 1960, some of the approximately 65 employees working for the
Respondent in San Francisco pondered the question of having a union to represent
them in dealings with their employer. In consequence on February 12 Henry Fernley,
William Butler, and Clinton Swain met with and spoke to John Owens , a representa-
tive of the American Federation of Labor and the Congress of Industrial Organiza-
tions, herein the AFL-CIO. Owens supplied the three with designation cards so that
employees interested in selecting a bargaining representative could indicate such a
.desire by signing a card . In the following several days Fernley, Butler , Swain, and
.then William Paul spoke to a number of employees in this connection . Thirty to
,thirty-three signatures were obtained . Some refused to sign . On February 16 Owens
met with a group of about 30 employees . Butler , Paul, Swain , Fernley, and Dorothy
Bayless were chosen to constitute a liaison committee to keep interested employees
informed as to the plans of the AFL-CIO and to answer questions in regard to the
organizing movement.
Owens immediately filed a petition with the Regional Office of the Board looking
toward certification of the AFL-CIO as bargaining representative of Respondent's
employees.
A copy of the petition arrived at Respondent 's premises on the morning of
February 18 and came to the attention of Charles Custer, Respondent 's sales manager.
A little later that morning, and after Custer had brought the petition to the office
of J. E. Bain, Respondent 's regional manager , Owens, came to the office . Speaking
first to Custer, Owens said that he had come in connection with the petition. Custer
took him to Bain 's office. After a short talk with Bain, Owens left that office and
stopping in an open office area adjacent spoke for a few moments with William
Paul. Custer observed this incident. In about a week Owens withdrew the original
petition and filed another seeking the same result but designating the Unions as the
proposed bargaining representative.
The Respondent wrote to all its employees commenting in a series of letters about
the Unions and the proposed election. The first letter, dated February 26, said
little more than that the Respondent was as zealous for its employees' welfare as
any union possibly could be. Later letters adverted to the fact that one of the
Unions was an affiliate of the International Brotherhood of Teamsters and called to
the employees' attention certain unfavorable publicity attaching to that labor or-
ganization and some of its officers in recent years. The complaint does not allege
that any of these communications constitute a violation of the Act. They do reveal,
however, that the Respondent strongly desired its employees to reject the overtures
of the Unions.
William Butler and Barth Austin are young men who, in December 1959, came
to the Respondent's employ in minor jobs. On an occasion in late January or early
February, Austin in the company of Butler was standing at an elevator door on
Respondent 's premises . Judy White, a young woman in Respondent 's employ, was
,standing in the same location. Austin leaned over and kissed White on the back of
the neck. At this point the elevator arrived and White entered it. White made no
report of this incident to anyone but was disturbed and annoyed by it A day or two
later, Austin and Butler entered an elevator in which White was a passenger. They
stood close to her and Austin in particular, according to White, tried to crowd her
into a corner and to kiss her. The elevator stopped, discharged its passengers and
nothing further took place on this occasion. Judy White, a gentle, attractive, and
seemingly timid young lady, testified that she was frightened by the conduct described
and spoke to a coworker, Rowena Lewis, about it. Accompanied by Lewis, White
went to Custer's office, Bain being out of town, and reported to him what had hap-
pened. Custer then called Butler and Austin with their supervisor Hulbert Fisher
to his office. Custer reproached the young men for their conduct, told them that
they must stop bothering White and, according to Austin and Butler, said that the
matter was closed. Fisher, Austin and Butler testified, said that White might need
psychiatric treatment but that it was not the responsibility of either of them to
supply it. Both returned to their jobs and thereafter ceased their attentions to White.
On February 8, Bain returned to his office and for a period of about a week, he
testified, was almost wholly engrossed in consultations with a contractor who was
then making alterations in the offices. On February 16, according to Bain, he first
learned from Custer about the involvement of Austin and Butler in the White in-
THE METHODIST PUBLISHING HOUSE 1425
cident.l Bain asked Custer, he testified, why he had not fired the two men at once
and told Custer that the Respondent could not afford to keep employees "with moral
questions of that type." Bain then decided, according to his testimony, to discharge
the two at the end of the current pay period, February 23. The receipt of the
petition on February 18 caused him to speculate whether in the circumstances it
would be wise or lawful to make the terminations so he consulted counsel in the
matter. Telling counsel that he did not know whether Butler or Austin were in
anywise concerned in the organizing movement, he was told that he was free to
make the discharges. Bain testified that he then decided to let the two men go at
the end of the work day on Saturday, February 27 but, finding them gone at the
closing hour, he had them brought to his office on the morning of February 29. Bain
told them that they were being discharged for "molesting" Judy White and that they
were fortunate that her parents had not pressed charges against them. Bain added,
according to Butler and Austin, that neither of them was a satisfactory worker.
William Paul came to the Respondent's employ in January 1959, as a biller and
typist. He worked in a small department with an experienced employee, Nancy
Washington. The Respondent concedes that for the first several months of his em-
ployment Paul gave satisfaction. Beginning in the summer of fall of 1959, Paul
became habitually tardy and occasionally was absent without first gaining permission.
At sometime in the fall of that year, Custer spoke critically to Paul concerning his
absences and tardiness. In January 1960, as is Respondent's practice, Custer spoke
at length with Paul concerning his job performance. On a form designed for that
purpose Custer then recorded that on nine rating factors, Paul was below an accept-
able standard in four, and no more than adequate in three, and satisfactory in only
two. On the form Custer commented, "Mr. Paul has a very poor record of being at
work on time. He also is absent quite often with no excuse. He has been told that he
will lose his job if he did not improve." At about the same time Custer asked Nancy
Washington to provide him with an evaluation of Paul's work. Washington's report
indicates that she had a somewhat higher opinion of Paul as an employee than
Custer's evaluation reflects but also indicates a sharp awareness of Paul's proclivity
for tardiness.
For the last 6 months of his employment no week passed in which Paul was not
tardy in reporting for work on at least one day. Often his lateness was merely a
matter of 2 or 3 minutes. Occasionally he came in 10 or 15 minutes past the start-
ing time and on a few occasions was late an hour or two. Paul testified that in June
1959 Manager Bain told all employees that they would not be considered to be tardy
if they came to work no more than 6 minutes past the starting time. I do not think
that Paul or any employee could reasonably have interpreted this to mean that office
hours were being changed and in any event the occasions upon which Paul was late
more than 6 minutes were many.
On February 16, according to Bain and Custer, it was decided that Paul was not
giving an adequate performance in his job and that this, coupled with his persistent
tardiness required his discharge. Because of the filing of the petition, it was decided,
Mn said, to postpone any discharges until counsel could be consulted. On February
27, Bain told Paul that because there had been no improvement in his work he was
terminated. Both Custer and Bain testified that they had no knowledge that Paul was
in any way involved in the Unions' organizing campaign. Bain testified that he was
equally uninformed about Butler and Austin.
The General Counsel argues that the Respondent was motivated in making these
discharges by a fear that the Unions would succeed in gaining status as bargaining
representative and that the discharges were made in the belief that at least some
support for that movement would disappear if Paul, Austin, and Butler were no
longer employees.
As to Paul I am convinced that the Respondent knew on February 18 that he had
some identification with the Unions' movement. On that day, it may be recalled, a
petition in behalf of the AFL-CIO came to the attention of Custer. Custer testified
that although he saw this petition he did not trouble to read it and was unaware of
its content. This I do not believe. His name appears on the petition as "employer
representative to contact." I think it unlikely that Custer could have looked at the
petition without seeing his name and thus be moved to study it. Custer's testimony
that he gathered enough from what he saw of the petition to realize that it was some-
thing of concern to Bain rather than to him suggests something more than a cursory
glance. I find that when Custer saw the petition on the morning of February 18 he
understood it well enough to gather its general import. On that same morning Cus-
ter met Owens, learned that he was calling in connection with the petition, and saw
Custer 's testimony corroborates that of Bain as to the February 16 date.
586439-61-vol. 129-91
1 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him in conversation with Paul. It would be an obtuse person indeed, and this does
not describe Custer, who would fail to suspect that Paul was one of those participat-
ing in organizing the employees.
Respondent 's counsel argues in his brief there is no "direct" evidence that the identi,
fication of Butler and Austin with AFL-CIO or the Unions ever came to the attention
of any representative of the Respondent . It is also true that the circularization of
designation cards was covert. Those engaged in that activity seemed to think it un-
wise to let their employer know what they were about . But one would be naive to
believe that after a week or two of this campaigning the Respondent would remain in
ignorance of it . About half of the approximately 65 employees signed cards. Others
who were invited to do so refused . That some of those unwilling to favor the
Unions and possibly some who were, would report the developments to some super-
visor is a strong likelihood . I do not credit Bain's testimony that he was quite unaware
until February 18 that any activity was going on in connection with the AFL-CIO
or that he did not learn until after February 29 that Butler and Paul were concerned
in it. I find that at the time the discharges were made effective Bain knew or believed
that Paul and Butler were leaders in organizing the employees and he knew, of course,
through the White incident if in no other fashion that Butler and Austin were
associates.
Henry Fernley , whose employment began in September 1957 and whose participa-
tion in the organizing has been mentioned, did not work the week of February 22.
Upon his return on February 29 he asked Custer where he was to work. After con-
sulting with someone Custer took him to the basement where he was placed on a job
which he had held a year or two before and from which he considered he had been
promoted . A little later that morning, according to the undenied and credited testi-
mony of Fernley , Bain came to the basement and found Fernley making a telephone
call. Bain told him to go back to his desk ; that if he did not like his employment he
could pick up his check at once . Turning then to other employees Bain said that his
advice went for anyone there and that he was "just fed up with this whole business."
A moment later, according to Gay Swain whose husband was on the employee liaison
committee , Bain told Fisher , the supervisor of the employees in the basement, to
watch Fernley and to report if he left his work station except for a coffee break.
Bain said something further to Fisher, Swain testified, about "this whole union mess."
Swain said that another employee, Bernice Willis, was standing nearby and I conclude
on the basis of Swain's testimony that Willis was in as good a position as Swain to
overhear what passed between Bain and Fisher . Willis called as a witness by the
Respondent testified that she did not hear Bain say "I am sick and tired of this whole
union mess ." Bain and Fisher denied that anything was said about a "union mess."
Clinton Swain testified that on the morning of February 29 while at work in his
office adjacent to that of the store manager, Ernest Chandler, he heard Bain in a
telephone conversation mention the word, "union." Thus alerted, Swain stopped the
machine he was operating and from a point on his side of a partition within a few
feet of the speaker, heard Bain tell someone that he had discharged three men who,
he thought, "were mixed up with this union mess ;" had transferred another to work
in the basement ; and that the last would be terminated if he took a step away from his
desk for any reason other than a coffee break 2 Swain reported what he had over-
heard to others . The next day Bain told Swain that the latter should stop spreading
rumors to the effect that employees had been discharged for union activity, denied
that this was so, and offered to prove to Swain through some records that the dis-
charges were made for lawful cause.
Also on February 29, Fernley went to Bain 's office, asked why he had been sent to
the basement , and voiced his thought that Paul, Austin , and Butler had been dis-
charged because of activity in behalf of the Unions . Fernley told Bain that if he had
been transferred in order to induce him to quit he would not do so. Bain answered
that the transfer had nothing to do with the Unions . Custer came in. Fernley said
it seemed odd to him that two of those discharged were on the employee liaison com-
mittee and the third had been active in the Unions . Bain said that they were not
discharged because of any such consideration ; that Paul's work had been unsatis-
factory and that Austin and Butler had "molested a girl " Custer interjected that Bain
had just learned of that incident . In the conversation which followed , according to
Fernley, Bain said that if the Respondent had to pay the wage rates that the Unions
2On cross -examination Swain was asked if it was possible that Bain had said , " I have,
already been accused of firing three men because of union activitie, " He answered at
first that he did not know and finally that it was Recnznition by a witness of the
possibility of error does not destroy his testimony On the other hand it is a concession
that the inventive witness would be unlikely to snake -
THE METHODIST PUBLISHING HOUSE 1427
would want, it would be necessary to replace a number of the present employees
with more experienced workers. Bain and Custer dewed that this was said .3 Bain
told Fernley that he was sent to the basement because he was needed there and
commented that Fernley was on "shaky ground" in that his work in the retail store
had not been satisfactory. Fernley retorted that Chandler, the manager of the store,
had told him in the preceding month that his work was very satisfactory. When
called as a witness by the Respondent, Chandler conceded that he had told Fernley
that the latter seemed to be doing a satisfactory job.
In early March from his post of vantage Clinton Swain heard another telephone
conversation in which he listened to Chandler inquire if an employee named Everett
had been at any time a member of a union. Chandler testified that this telephone
call was to a former employer of Everett and that it was made in order to learn how
Everett might be expected to vote in a representation election
The discharge of Paul coming as it did at a time when the work of the small
department in which he had been employed was heavy, resulted in Bain arranging
for another employee of the Respondent whose work was not directly connected
with the San Francisco operation to be brought to San Francisco from Los Angeles
and to be maintained at the expense of the Respondent for a period of about a
month. The essence of Bain's testimony in respect to this importation is that it
may not have been really necessary but that he gave in to the strongly expressed
desires of Nancy Washington to provide her with assistance. According to Bain the
transferred employee did not find enough work to keep her wholly occupied.
The Respondent's defense is primarily that the discharges were made for valid and
lawful cause and that no responsible representative was aware at the time the dis-
charges were decided upon or at the time they were made effective that any one of
the three men affected were active in any respect in promoting the Unions' interest.
As to Paul I have found that Custer must have recognized Paul to have had some
acquaintance with the AFL-CIO Representative Owens when he saw the two of
them in conversation on February 18. As to Butler and Austin I have found it to
be a reasonable inference that knowledge of their participation in the organizing
campaign must have come to the Respondent's ears. The testimony of Fernley and
Gay Swain that on the morning of February 29 Bain said that any employee who
did not like his work could pick up his check stands undenied. I think it to be true
that it is not usual for the manager of an enterprise to speak so to a group of
employees without provocation. The only conduct on the part of anyone in the
group which arguably could have moved Bain so to express himself is that Fernley
made a telephone call, presumably during work time. Bain may well have frowned
upon such a practice but it is unlikely that this normally would have evoked such a
fretful outburst as the one that followed. I am convinced that he was "sick of the
union mess" on that morning and that he said so. Neither Bain nor Fisher denied
the instruction to keep Fernley closely at work upon some penalty if he left it even
briefly Bain denied that he made any telephone conversation, saying that he had
discharged three men and transferred anothei because of involvement with the
Unions and Chandler testified that he could recall no such conversation
Both Swains have quit Respondent's employ. Although each signed a designa-
tion card and although Clinton Swain was a member of the employee liaison com-
mittee there is no evidence of any ill feeling on the part of the Swains toward the
Respondent and I do not believe that any part of the testimony of either was con-
trived or is the production of imagination. I credit them fully- and find that Bain
spoke on the occasions set forth in the testimony of each as they said on the stand.
If Gay Swain had a design to testify falsely, I think it unlikely that she would have
provided Respondent's counsel with the name of a witness, Bernice Willis, who was
present and in an apparent position to hear what Swain says she heard. Willis, of
course, testified that she did not hear some of the words testified to by Swain. Thus
the possibility exists either that Swain was mistaken in what she said she heard or
that she was testifying falsely. From my observation of her on the stand I am
convinced that she testified truthfully. Willis' failure to corroborate her is attribut-
able, perhaps, to inattention on Willis' part. Clinton Swain had good reason to feel
a debt of gratitude to the Respondent for a favor done him at a time when he was
threatened with arrest over an accumulation of parking tickets. In any event, I
thought him to be a truthful witness as he testified, and a review and contemplation
of the record has not changed that impression. His further testimony in respect to
Chandler is admittedly true in its essentials and is credited
31 credit Fernley here, and on other points where his testimony conflicts with that of
Rain or Custer However, there is no allegation that this remark constitutes a violation
of the Act,
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The remark by Bain to Butler and Austin on the occasion of their discharges
that neither was a satisfactory worker is somewhat puzzling. I find that Bain did
offer this as one reason for discharge . He did not deny saying so, Custer remem-
bered such a remark, and I can see no reason for Butler or Austin inventively to
have embellished his words in that particular. There is no evidence that the work
of either was in fact unsatisfactory. Their supervisor, Fisher, who it may be
assumed was competent to form a judgment about their work performance did not
testify to the point and said that he was not consulted by Bain before the dis-
charges were made. Why then did Bain assign this as a cause? I believe that he
did so for the same reason that he characterized the teasing or hazing of Judy White
as "molesting a girl" and as "immoral ." The extravagance of these exaggerations
bespeaks consciousness of a necessity to divert attention from the operative motiva-
tion for the discharges. Bain's attitude of shock that such an incident had occurred
in the Respondent's building was assumed. This is not to say that Judy White had
no cause to complain, for she had. Austin of course had no right to bother her
as he did and if Butler be regarded as an accessory, he, too, was wrong. Custer
handled the complaint sensibly and effectively. He told Butler and Austin to leave
White alone and they did so. It seems not improbable that after reproving the
two he would say that the matter was "closed." I find, crediting the testimony of
Butler and Austin as against that of Custer on the point, that he did so.
Bain testified that the White incident was not reported to him on his return to
San Francisco on February 8 because he was preoccupied. I strongly doubt that
this is the true explanation and I do not believe that the matter was raised in any
discussion between Custer and Bain on February 16. There is no reason why it
should have been. Custer had said that it was "closed," it was little more than a
trifling problem at any time, and there had been no recurrence of the offense.
The Respondent strongly and earnestly sought to persuade its employees of the
unwisdom of endowing the Unions with representative status. Chandler sought to
learn whether Everett had a prior union affiliation in order to judge whether he
would vote for the Unions in an election. This suggests, of course, that Respond-
ent's management was discussing the probable response of its employees to the
Unions' appeal. In such a discussion it is probable that Paul, Butler, and Austin,
for reasons already discussed, would be viewed as supporters of the Unions. A
tempting opportunity was presented to deprive the Unions of three probable votes
by discharging the three men and colorable reasons for doing so existed. The
Respondent could discharge Butler and Austin because of the complaint of White
and could discharge Paul because of persistent tardiness and a disinterested work
attitude. I find that it did not do so. I have little doubt but that the Respondent
was not satisfied with Paul if for no other reason than tardiness. After the warn-
ing given him in January he persisted in this habit which had its beginning many
months before. But Paul was performing work in his job which to the other em-
ployee in the department, Nancy Washington, seemed adequate, or nearly so, and
the discharge came at a time when the workload was reaching its cyclic peak.
Bain was convinced that it was necessary to have a replacement for Paul, at least
for a time, and on Sunday, February 28, hastily made arrangements by telephone
for a person to come from Los Angeles to fill Paul's place. On Monday, Febru-
ary 29, speaking to Bain of her need for assistance because of Paul's discharge,
Nancy Washington was told that it would be forthcoming. Discussing Paul, Bain
said that his work was unsatisfactory and added (I credit the testimony of Nancy
Washington, a seemingly disinterested witness, on this point, and thus disbelieve
Bain's denial that he so expressed himself) "because of this other business" the dis-
charge had to be made at once. I find that the "other business" had reference to
the Unions' organizing campaign.
Finally, the testimony of Clinton Swain that he overheard Bain say on February
29 that three men had been discharged for suspected involvement with the Unions
convinces me that the complaint is supported by a preponderance of the evidence
and that the Respondent has committed the unfair labor practices there alleged
I find that the Respondent discharged William Paul on February 27 and William
Butler and Barth Austin on February 29 because of a belief that each of them was
active in behalf of the Unions and that each would support ,the Unions in a repre-
sentation election. I do not believe that Paul was discharged because of tardiness
or poor work attitude or that Butler or Austin was discharged because of the White
incident.
By the discharges the Respondent has discriminated in regard to the tenure of
these employees to discourage membership in nand activity in behalf of the Unions
and has thereby violated and is violating Section 8 (a) (3) of the Act. By the same
discharges , the Respondent has interfered with, restrained , and coerced employees
THE LEAGUE OF NEW YORK THEATRES, INC. 1429
in the exercise of rights guaranteed in Section 7 of the Act, and has thereby violated
and is violating Section 8 (a)( I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the tenure of
employment of William Paul, William Butler, and Barth Austin it will be recom-
mended that it offer to each of them immediate and full reinstatement to his former
or substantially equivalent position without prejudice to seniority and other rights
and privileges previously enjoyed. Each shall be made whole for any loss of earn-
ings sustained by reason of the discrimination by payment to him of a sum of money
equal to the amount he would have earned from the date of his discharge to the date
of offer of reinstatement less his net earnings during that period. Backpay shall be
computed in accordance with the Board's Woolworth formula.4 Loss of pay shall be
determined by deducting from a sum equal to that which he would have earned for
each quarter or portion thereof, his net earnings in other employment during that
period. Earnings in one particular quarter shall have no effect upon backpay liability
for any other quarter.
Upon the basis of .the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Unions are labor organizations within the meaning of Section 2(5) of the
Act.
2. By discharging William Paul, William Butler, and Barth Austin, the Respondent
has discouraged membership in and activity in behalf of a labor organization and
thus has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of .the Act.
3. By the discharges, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within .the meaning of Section
8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
' F. W. Woolworth Company, 90 NLRB 289.
The League of New York Theatres , Inc. and Society of Stage
Directors and Choreographers, Inc. Case No. AO-11. Janu-
ary °26, 1961
ADVISORY OPINION
This case is before the Board upon a petition filed by the League of
New York Theatres, Inc., hereinafter called the Employer or League,
pursuant to Section 102.98 of the Board's Rules and Regulations,
Series 8, praying for an advisory opinion as to whether the Board
would assert jurisdiction over the operations of the Employer. There-
after, the Society of Stage Directors and Choreographers, Inc., herein-
129 NLRB No. 179.