The Times-Picayune Publishing Co.

National Labor Relations Board - Board Decisions

Jun 7, 1941

32 N.L.R.B. 387 (N.L.R.B. 1941)

In the Matter of THE TIDIES-PICAYUNE PUBLISHING COMPANY and
INTERNATIONAL TYPOGRAPHICAL UNION, UNAFFILIATED
Case No. C-1781.-Decided June 7, 1941
Jurisdiction : newspaper publishing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: discouraging attempts of employees to or-
ganize ; urging employees to vote against the union ; financing a party to cele-
brate union's defeat in election ; action of vice president in publicly making
scurrilous remarks about the leader of the union ; action of foremen in prepar-
ing lists of employees suspected of having voted for the union and thereafter
submitting them to superintendent; urging employees to sever their connection
.with the union ; discriminatory application of rule against talking in plant ;
threatening the discharge of union leaders ; threatening to discontinue publica-
tion of afternoon paper if the composing room became organized.
Discrimination: discharge of an employee because of his leadership and activity on
behalf of the union ; charges of, dismissed as to one person.
Remedial Orders : reinstatement and back pay awarded.
Mr. Warren Woods and - Mr. C. Paul Barker, for the Board.
Mr. Esmond Phelps, of New Orleans , La., for the respondent.
Mr. J. B . Sparkman and Mr. John J. Conley, of New Orleans, La..
for the Union.
Miss Marcia Hertzmark , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
A charge having been duly filed by International Photo-Engravers
Union, Local x$42, affiliated with the A. F. of L., herein called the
Photo-Engravers, and a charge and amended charges having been
duly filed by International Typographical Union, unaffiliated, herein
called the Union,' the cases were, by order of the National Labor
Relations Board, herein called the Board, duly consolidated on
September 11, 1940, pursuant to Article II, Section 36 (b), of National
'The Photo-Engravers Union and the International Typographical Union ate herein
referred to collectively as the unions.
32 N. L. R. B., No. 82.
387
448032-42-vol 32--20
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board Rules and Regulations-Series 2, as amended.
Thereafter, upon amended charges filed by the Photo-Engravers on
October 11, 1940, and on the third amended charge filed by the Union
:)n October 11, 1940, the Board, by its Regional Director for the
Fifteenth Region (New Orleans, Louisiana) issued its complaint dated
October 12, 1940, against The Times-Picayune Publishing Company,
New Orleans, Louisiana, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. The complaint, together with
a notice of hearing thereon, was duly served on the respondent, the
Photo-Engravers and the Union.
Thecomplaint alleged, in substance, that the respondent had- dis-
criminated in regard to the hire and tenure of employment of John
L. Richards because of his membership in and activities on behalf of
the Photo-Engravers and that the respondent had discriminated in
regard to the hire and tenure of employment of Albert P. Stoddard
and Thomas I. O'Connor because of their membership in and activi-
ties on behalf of the Union. The complaint further alleged that the
respondent had otherwise interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the
Act: (a) by permitting a former superintendent, while acting as
such, to recruit strikebreakers from among the respondent's employees,
to serve in strike-bound plants; (b) by urging its employees to vote
against the unions in two consent elections held on May 20, 1940, for
the determination of collective bargaining representatives in two ap-
propriate units of the respondent's employees; (c) by holding a cele-
bration following the election in which the unions were defeated, at
which celebration representatives of the respondent made abusive
and scurrilous remarks concerning the unions; (d) by prohibiting
conversations between employees during working hours and there-
after rigidly applying the rule to members of the unions but not apply-
ing it to persons who were active in opposition to the unions; and (e)
by threatening employees that continued membership in the unions
would result in their discharge.
The respondent thereafter filed its answer, dated October 21, 1940,
denying the commission of the unfair labor practices alleged in the
complaint. The respondent admitted the discharge of the employees
whose discharges are subjects of complaint herein and affirmatively
alleged that such discharges were made for cause, but generally denied
that it had engaged in any practices which constituted unfair labor
practices within the meaning of the Act.
Pursuant to notice, a hearing was held in New Orleans, Louisiana,
from November 4 through 9, 1940, before R. N. Denham, the Trial
THE TIMES-PICAYUNE PUBLISHING COMPANY 389
Examiner duly designated by the Chief Trial Examiner. All parties
were represented either by counsel or by official representatives and
tin opportunity was afforded all parties to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. In the course of the hearing, representatives of the Photo-
Engravers entered into a stipulation with the respondent and counsel
for the Board disposing of all the issues involved in the amended
charge constituting the basis of that portion of the complaint per-
taining to the Photo-Engravers. After such stipulation had been
duly filed as part of the record in the consolidated cases, all parties
to the stipulation joined in a motion to sever that case from the case
involving the Union. The Trial Examiner, subject to confirmation
by the Board, granted the motion and thereafter received no further
testimony on the issues involved in the Photo-Engravers' case 2 At
the close of the hearing, a motion by counsel for the Board to amend
the complaint to conform to the evidence as to names and dates was
granted, to be applicable without further motion, to both the com-
plaint and the answer. During the course of the hearing the Trial
Examiner made rulings on other motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. 'Briefs were filed with the Trial
Examiner by the respondent and by the Union.
Thereafter, the Trial Examiner issued his Intermediate Report,
dated January 3, 1941, copies of which were duly served upon all
the parties, finding that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act, and
recommending that it cease and desist therefrom. He also recom-
mended that the respondent offer, to A. P. Stoddard immediate and
full reinstatement to his former' position and make him whole for any
loss of pay he may have suffered by reason of the respondent's dis-
crimination against him. He recommended further that the com-
plaint be dismissed in so far as it alleged that O'Connor had been
discriminatorily discharged. The Union and the respondent filed
exceptions to the Intermediate Report and briefs in support thereof.
The respondent requested permission to argue orally before the Board.
Pursuant to notice, a hearing a was held before the Board in Wash-
ington, D. C., on March 6, 1941, for the purpose of oral argument.
The respondent and the Union were represented by counsel. The
Board has considered the exceptions to the Intermediate Report and
'After the conclusion of the hearing, the respondent , the Photo-Engravers and counsel
tor the Board entered into a supplemental stipulation . On December 10, 1940, the Board
issued an order approving the stipulations and severing the cases . IOn December 17, 1940,
the Board entered a Decision and Order in the Photo-Engravers ' case . Matter of The
Times-Picayune Publishing Company and International Photo -Engravers Union Local #y2,
eililiated with the A. F of L, 28 N L. R. B 651.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the briefs and oral argument in support thereof and, in so far as the
exceptions are inconsistent with the findings , conclusions and order
set forth below , finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a corporation existing under and by virtue of the
laws of the State of Louisiana , with its principal place of business in
the city of New Orleans , Louisiana . Since 1914, the respondent has
been engaged in the publication of a morning newspaper known as
"The Times -Picayune" and since 1933 has been engaged in the pub-
lication of an afternoon newspaper known as the "New Orleans
States." Circulation of these newspapers is in excess of 125,000 copies
per day and 50,000 copies per day respectively. Both papers are pub-
lished and distributed from the plant of the respondent in the city of
New Orleans. In addition to the foregoing, the respondent also pub-
lishes a Sunday newspaper under the name "New Orleans Times-
Picayune -States" which is distributed from its plant in New Orleans
and has a circulation in excess of 180,000 copies. Approximately 20
per cent of the respondent 's circulation represents papers distributed
cutside of the State of Louisiana . In the year 1939, the gross income
of the respondent was in excess of $1,500,000.
Raw materials consisting of news print , news ink, mats , machinery,
and other supplies of the average annual value of more than $1,000,000
are used by the respondent. Approximately 90 per cent of this amount
represents purchases of news print which are delivered to the respond-
ent in the State of Louisiana from foreign countries . Approximately
5 per cent in value of the raw materials used by the respondent are
purchased within the State of Louisiana.
In the operation of its business , the respondent employs approxi-
mately 700 persons, of whom 214 are employed in the mechanical de-
partment, consisting of the composing room, the press room, the stereo-
type department, the photo-engraving department, and the mainte-
nance department . One hundred and six are employed in the com-
posing room.
The respondent utilizes the services of the Associated Press, the
United Press , feature services , and news syndicates , all of which are
of national coverage , and the services of special correspondents lo-
cated in States of the United States other than the State of Louisiana,
in connection with which services it uses in its newspapers from
100,000 to 150,000 words of news stories per day. It likewise fur-
nishes news stories to the Associated Press for distribution and
transmittal to cities in States other than the State of Louisiana.
THE TIMES-PICAYUNE PUBLISHING COMPANY 391
II. THE ORGANIZATION INVOLVED
International Typographical Union, unaffiliated, is a national labor
organization admitting to membership the composing room employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background: interference, restraint, and coercion
Although the respondent has for 30 years had a union contract with
the stereotypers' union in connection with the operation of its stereo-
typing department,3 its operations have otherwise been consistently
conducted on a non-union basis. In the past, when one Forstall was
superintendent of the composing room, the respondent, on several oc-
casions supplied or offered to supply non-union printers to act as
strikebreakers in strike-bound plants of other publications in various
parts of the United States. These strikebreakers were supplied par-
tially from the composing room force of the respondent and partially
from among unemployed printers, all of whom, however, were cleared
for strikebreaking purposes through Forstall, with the knowledge of
the respondent's higher executive officials. On one occasion in 1933,
H. Watson Washburn, who had previously been sent by Forstall to
work in a struck plant in California, applied to Forstall for a job with
the respondent. Forstall refused to employ Washburn until the lat-
ter stated that he had been one of the strikebreakers, after which
Forstall employed him. Forstall was relieved as superintendent in
1937, since which time, so far as the record reveals, such activities
have not been repeated by the respondent or under its sponsorship.
The above incidents are not being made the basis of findings as to
unfair labor practices herein. Such facts are significant,' however,
in appraising the respondent's attitude toward the attempts of its
employees to form a labor organization.
In about October 1937 A. P. Stoddard and others discussed plans
for organizing the composing room and scheduled a meeting of em-
ployees to consider such plans. A day or two prior to the scheduled
date, Foreman James Powers and employee Clarence Robeson circu-
lated a request that the meeting be postponed because an important
announcement was to be made on the following Monday. At that
time the respondent announced that Forstall was to be replaced by
Claude L. Baker. The plans for organization were thereupon
dropped.
, Tims. the respondent 's vice president , testified that he did not know of any available
sterotypists in New Orleans who were not members of the stereotypers ' union.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOAR])
Frederick R. Zeller had been employed by the respondent until
October 1937, when he and another employee were discharged and two
others transferred, due to the discontinuance of one edition. After
Baker became superintendent of the composing room, Zeller applied
for a job on several occasions and, according to Zeller's testimony, was
-told that if he kept coming around Baker would see what he could do.
One night Zeller told Baker he had been working on the "Progress."
Baker replied, "Well, the Progress is a union newspaper . . . do
you belong to the union?" Zeller replied that he did, where-
upon Baker stated, "I am sorry, if you got a card, you can't work
here . . . I am here to keep the union out of here . . . I
don't say that you will, but you may do something to stir those fellows
up . . . If they get an organization, where will I be?"
Baker denied Zeller's testimony and explained that although he
asked Zeller how he happened to be working on the Progress since
it was a closed shop, he had told Zeller that there was no opening
for him because there were two operators who had priority over
him. We do not credit Baker's denial. We find that Baker made
the statements attributed to him by Zeller, and that he thereby
interfered with the exercise of the rights guaranteed the employees
in Section 7 of the Act.
Aside from the stereotypers union and the attempt by Stoddard
in 1937, no concerted effort had ever been made to organize any
portion of the mechanical department of the respondent's plant
until the early part of 1940. On February 12, 1940, J. B. Spark-
man, an official representative of the Union, in company with the
officials of the New Orleans local of that organization, called on
John F. Tims, Jr., vice president and business manager of the re-
spondent, for the purpose of discussing with Tims the general policy
of the respondent toward employees who became members of the
Union. He told Tims that some of the men had indicated a fear
of joining because of possible reprisals. Tims assured him that this
was not true but asked Sparkman to write him a letter on the sub-
ject, which Sparkman did. This letter, dated February •12, 1940,
was in effect a request from Sparkman that the respondent give
the Union a letter of assurance that the company would recognize
and abide by the provisions of the National Labor Relations Act.
Tims' replied on the following day, stating that, {
The Times-Picayune Publishing Company fully recognizes the
right of its employees to form or join labor organizations of
their own choosing and The Times-Picayune Publishing' Com-
pany has not, and will not, interfere with, restrain or coerce
any of its members in their exercise of such rights.
THE TIMES-PICAYUNE PUBLISHING COMPANY 39'3
After receiving Tims' reply, Sparkman left New Orleans but re-
turned in about 2 weeks, when he began an active campaign for
membership among the employees in the composing room of the
respondent.
During the interim between Sparkman's call on Tims and his
return to New Orleans, Stoddard, a linotype operator and former
member of the Union, who had been employed by the respondent
since August 1933, went unsolicited to the headquarters of the local,
in New Orleans and reinstated his membership to good standing.
At that time he had not met Sparkman and had not canvassed the
composing room employees to determine how many, if any, were
members of the Union. However, as soon as he reestablished him-
self, Stoddard began active solicitation among his coworkers. After
Sparkman returned to New Orleans and officially- opened his cam-
paign for memberships, Stoddard became the Union's outstanding
leader and exponent in the composing room. He was Sparkman's
chief assistant and took direct charge of the organizational activity
on those occasions when Sparkman was away. About the middle
of ,March 1940, Stoddard composed and had printed two leaflets
concerning the attitude of the respondent toward the Union, urging
the composing room employees to join. These were distributed by
mail to each employee in the composing room and gave rise to so
much discussion during working hours that on or about March 20,
Claude Baker, the superintendent of the composing room, complained
to Tims about it. Tims reported Baker's complaint to L. K. Nichol-
son; the respondent's president, who immediately called •in Esmond
Phelps, the respondent's attorney, and held a meeting that afternoon
attended by Nicholson, Phelps, Tims, and Baker. Phelps explained
the Act in detail and cautioned Baker to instruct each of the super-
visory employees working under him to observe all the provisions
of the Act. After the meeting, Baker told each of his foremen
not to interfere with the union activities of any of the employees
and in no event to discriminate between union and non-union men.
On March 21, 1940, the Regional Director for the Board wrote the
respondent stating that complaints had been informally made to his
office by the Union, because of alleged acts of intimidation wid coercion
by foremen and others. This letter resulted in a visit to the Regional
Director's office by Tims and Phelps, and later a letter from Tims to the
Regional Director, dated March .28, 1940, stating that he had inves-
tigated the complaints and found them baseless, and repeating the
statement in his February 13 letter to Sparkman, concerning the re-
spondent's recognition of the rights guaranteed in Section 7 of the Act.
On April 9, 1940, Sparkman, on behalf of the Union, filed a petition
with the Regional Director, seeking an election to determine the bar-
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining representative of the composing room employees and on April
10, notwithstanding the March 28 letter of the respondent to the Re-
gional Director, filed a charge alleging that the respondent had inter-
fered with, restrained and coerced the composing room employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
Shortly after the filing of the petition and charge, negotiations
'kere opened to work out a plan for a consent election. On May 7,
1940, a stipulation was entered into providing for a consent election
to be held on May 20, 1940, and containing a provision that the com-
pany would
not interfere, by foremen or other supervisory or executive em-
ployees, or in any manner whatever, with the employees' union
or organizational activities, and will not seek to influence them,
by innuendo or otherwise, as to,how they should vote in the election.
Upon receiving these assurances, and upon the agreement of the re-
spondent to post a notice advising its employees
that they are free to become members or refrain from becoming
Members of the International Typographical Union and no em-
ployee will be discriminated against because of membership or
activity in that organization,
which notice was duly signed by Tims and posted in the composing
room, Sparkman requested that the charges be withdrawn, without
prejudice. -
Nothwithstanding the. assurances of the respondent that there would
be no interference, Rudolph Garcia, foreman of the ad room, called
at the homes of several composing room employees on the day of the
election and urged them to vote against the Union in the election.
Although Garcia denied at the hearing that he had called upon the
employees, he later signed an affidavit stating that he had perjured
himself.
On May 9, 1940, Sparkman again called on Tims and complained
that the men in the composing room who were opposed to the Union
were spending too much time during working hours talking about and
against it and that unless Tims took steps to stop this soliciting against
the Union during working hours, he would be compelled to authorize
the union men to carry on their solicitation in the same manner. He
pointed out that such a situation would seriously affect the work of
the composing room and requested Tims to post.a notice prohibiting
discussion of the Union during working hours. Tims agreed and on
the same day posted a notice in the composing room reading :
All employees of the composing room must cease discussing union
or non-union membership while on'duty in our plant.
THE TIMES-PICAYUNE PUBLISHING COMPANY 395
This notice failed to have the desired effect; whereupon, after re-
ceiving complaints from the composing room foremen that the work
in that department was still being demoralized by the dissension
among the men on the union issue, Tims, on May 18, 1940, conferred
by telephone with the Regional Attorney for the Board in New Orleans
and, with his approval, drafted and posted the following notice :
All employees of the composing room must immediately discon-
tinue carrying on conversations during working hours, which have
nothing to do with the work assigned them in the composing room.
Any violation of this rule will result in dismissal.
The election was duly held on May 20, 1940. All eligible voters
cast their ballots, resulting in 46 votes for the Union and 60 votes
against it. The result of the election was known by the time the after-
noon shift had finished work and, by the time the regular workday
had ended, a number of the operators and foremen who had opposed
the Union had assembled at a nearby bar where they indulged in nu-
merous drinks of hard liquor. About 5: 30 p. in., Tims, together with
Baker, the composing room superintendent, Harve J. Robinson, a
former ad room foreman then working as an operator on a foreman's
pay scale, who became foreman of the composing room shortly after
the election, and Robeson, an old employee, joined the others at the
bar and thereafter Tims and Baker bought the drinks for the entire
crowd. As the drinking continued, other foremen and anti-union
employees joined the group, at least one of the foremen (John Fon-
taine) being accompanied by his wife.
At about 7: 30 p. in., Tims invited the entire group to adjourn to
Arnauds, one of New Orleans' well known restaurants, for dinner.
Here the drinking continued and still more of the foremen and others
known to have opposed the Union, joined the party. On instructions
from Baker, Hendricks, the night foreman in the composing room, left
his work to join the celebration.
What took place at this celebration, aside from the eating and drink-
ing, is not disclosed, except that when the party was about to break
up as midnight approached, someone suggested that they drink a toast
to Stoddard. Tims responded by raising his glass and proposing
the following :
A man may kiss his wife goodnight,
A rose may kiss the butterfly,
The sparkling wine may touch the glass,
Stoddard ... goodnight,
whereupon Tims signed the checks for the evening's entertainment.
charging them to the respondent, and the party disbanded.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is apparent from the evidence that both union and non-union
employees violated the rule against talking in the plant. Stoddard
and Ommond T. Johnson testified concerning numerous conversations
engaged in by non-union employees between May 18 and June 7, 1940,
but both admitted that they did not concern themselves with observ-
ing violations by union members. However, there is no evidence that
any non-union employee was ever reprimanded for violating the rule
whereas the evidence shows that several union members were so rep-
rimanded. Foreman Powers testified that he told Tims that Mike
Ford and Henry Maurin, characterized by Board witnesses as being
active against the Union, were the "worst agitators" in,the plant, but
there is no showing that any action was ever taken against them.
On June 3 Albert M. Katz, a member of the Union, was reprimanded
by Garcia for holding a short conversation with another employee
concerning the repayment of a small loan. Katz was told by Garcia
that it would be necessary for him to report to Baker before he could
return to work. That evening Katz mentioned the incident to Hen-
dricks, a foreman in the composing room, who told him that, although
Baker would probably take no action, Katz would be in a much bet-
ter position if he would volunteer to Baker to give up his union affilia-
tion. Hendricks stated, according to the testimony of Katz which
was undenied :
That is strictly up to you. If you feel that you want to go up
to Mr. Baker, if you feel that you want to talk to him about
severing your affiliations with the Union, that is strictly up to
you, but I thought perhaps that would strengthen your chances,
if anything would come of this incident that happened last
night, which I don't think it would be.
When Katz and Garcia "appeared before Baker the following day,
Baker stated that he had no complaint against Katz' work and "In
the future, let's try not to speak to anyone."
Stoddard testified without contradiction that on May 21 Foreman
Hendricks give him a "confidential tip" that he had been seen talking
and warned him that all talking must be reported. On May 22
Thomas O'Connor was warned orally against talking by Foreman
Downes and a written notice; which he received on July 19 and which
is discussed below, also contained such a warning.
We find that, in the application of the rule against talking in
the plant, the respondent discriminated against employees who were
members of the Union.
Following the election the union controversy continued and, in
addition to the discriminatory reprimands of union members for
violating the rule against talking, several of the composing room
foremen prepared lists for Baker, showing the men who were sus-
THE TIMES-PICAYUNE PUBLISHING COMPANY 397
petted of having voted for the Union, and indicated that employees
who had voted for the Union had incurred disfavor with the manage-
ment. Foreman Powers denied that he had been asked to prepare
such a list and stated, "I just told him [Baker], like everybody else,
figuring out how the men were talking, so I just did the same thing
one morning." Stoddard testified without contradiction, concerning
a conversation with another foreman, W. D. Power, that Power
"mentioned . . . he could not truthfully say whether a man was
union or non-union, and he didn't know how to put him on, liis
list that he had to submit." On the night of the election Foreman
Hendricks told Albert Lewis that Baker thought-Lewis had voted
for the Union but Hendricks did not think so, that Hendricks was
going to make up a list for Tims and put Lewis down as voting "for
the office" rather than for the Union. He also advised Lewis to
"talk with Mr. Baker and get straightened out," and stated that
Tims had said "whether it went union or non-union ... the Picayune
would still not sign a union contract." Hendricks did not testify.
Tims denied the statement attributed to him. We credit the testi-
mony of Lewis as above set forth. H. C. Spragins, a floorman in
the ad room, testified that Foreman Garcia told him to watch his
step-"the pressure is on"-, when Spragins informed Garcia that
he had voted for the Union. Garcia appeared as a witness at the
hearing but did not deny the testimony of Spragins. On July 7,
1940, John Fontaine, a foreman in the ad room, was discussing the
personnel of the composing room with Joseph Le Greca, whom he
knew as a close friend of one Verde, who was associated with Stod-
dard in promoting the Union. The subject of Stoddard's discharge 4
was mentioned and in connection with that, Fontaine mentioned that
he and Verde were friends but that when Verde voted "against the
company," he had voted against him (Fontaine) and that "if he
(Verde) don't watch his step he'will be the next one to leave there."
This conversation was likewise undenied.
The respondent's attitude toward the Union was further demon-
strated by threats to close down its afternoon paper if the composing
room was organized. H. Watson Washburn, an employee of the
respondent until 1935, who had since visited the plant on numerous
occasions prior to the early part of 1940, testified concerning a con-
-versation with Foreman Powers on May 28, 1940, at a baseball park.
He stated that Powers told him of a conversation with Tims in which
Tims had said that "rather than the composing room going union
he would close down the `States"'; that Powers expressed a desire
to see Stoddard, Verde, and Johnson and tell them "what was what" ;
4 Discussed in Section B, infra.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Powers explained that his demotion from foreman, which
was to take effect shortly thereafter , was caused by his refusal to
"go around and round up anyone for the office."
Powers admitted having the conversation with Washburn but ex-
plained that Tims had told him there was too much dissension, that
the "States" was losing money and that if all the talking did not cease
"they would or could stop the `States.' " He added that he told Wash-
burn this and that he wanted to repeat it to Stoddard, Verde and
Johnson "in an effort-to try to save their jobs . . . and to make
peace and harmony." Powers was asked whether the three employees
mentioned by him were the ones singled out by Tims in his conversa-
tion with Powers . He replied , "not necessarily ." In response to the
question, "Stoddard was, wasn't he?" he stated, "Stoddard was sup-
posed to be one of the leaders in the union activities around there.
I think everybody knew that." Tims did not testify concerning
the conversation with Powers.
Powers denied telling Washburn that his ( Powers' ) demotion was
for the reason stated by Washburn and testified that he had asked
to be demoted because lie thought Baker had lost confidence in him
as an executive. In view of all the circumstances we credit Wash-
burn's recital of what occurred.
From the foregoing and from the entire record in the case, we
find that the respondent, by discouraging attempts of its employees
to organize, by urging employees to vote against the Union, by financ-
ing a party to celebrate the Union's defeat, by the action of its vice
president in publicly making scurrilous remarks about the leader
of the Union, by the action of its foremen in preparing lists of em-
ployees suspected of having voted for the Union under the circum-
stances set forth above, and thereafter submitting them to the
superintendent, by urging employees to sever their connection with
the Union, by the discriminatory application of the rule against
talking in the plant, by threatening the discharge of union leaders,
and by threatening to discontinue publication of its afternoon news-
paper if the composing room became organized , has interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
B. The discharges
Thomas O'Connor, age 21, was first employed by the respondent
in 1936 as a galley boy. After about 4 months of such employment,
he was laid off and in 1937 was reemployed at the same job. Some
time after this employment , he became a machinist 's helper at a salary
of $18 per week and remained in that employment until his discharge
on July 20, 1940 . In March 1940 , he applied for membership in the
Union and thereafter became one of its most enthusiastic exponents.
THE TIMES-PICAYUNE PUBLISHING COMPANY 399
He made appointments with the various employees to meet Sparkman
at the latter's hotel room, and was well known throughout the plant
as a union supporter who was close to Stoddard in carrying on the
union activity. O'Connor testified that he had talked to about 80
employees concerning the Union, especially during the "graveyard"
shift, on which he worked, and that prior to the election he had often
come to work early to talk to men about the organization. Stoddard
testified that O'Connor assisted him in contacting the younger men
and that O'Connor was more active than most of the applicants for
membership in the Union. Although there is no direct evidence
that the respondent had knowledge of O'Connor's union activities, it
may be inferred from the evidence that it was aware thereof.
On May 22, O'Connor's foreman, Downes, called his attention to
the May 18 notice, told him that his work had iiot'been good lately and
warned him that if he did not do better, he would be let out. O'Connor
promised to do better.
During June or July 1940, the respondent, on advice of Phelps, its
attorney, adopted the policy of giving written warnings to employees
who committed violations of the rules or who failed to live up to the
usual standards of performance, before discharging them, as a pre-
cautionary measure to cover instances where employees might claim to
have been discharged without warning. Under this procedure, the
employee so warned was required to acknowledge receipt of such notice
in writing, on a carbon copy thereof. On July 19, 1940, Baker
addressed such a warning to O'Connor, reading as follows :
I have a report from Mr. Downes, head machinist, that on July
17th, 1940, at 3: 00 A. M., you took your lunch time and then went
to sleep and slept thirty minutes beyond your lunch hour, thereby
neglecting your work. Also at 7: 55 A. M., same date, you spent
approximately one hour in conversation with several employees
during which time you were further neglecting the duties assigned
to you.
Mr. Downes has reprimanded you verbally in the past about neg-
lecting your work, and any further neglect of your duties in
this plant will result in your immediate dismissal.
CLAUDE L. BAKER,
Supt., Composing Room.
CLB/G.
This notice, in duplicate, was handed to Downes to be delivered to
O'Connor, and to take a receipt from O'Connor on the carbon copy.
Downes showed O'Connor the notice but would not permit him to read
it unless he would first sign a receipt for it, on the copy. This O'Con-
nor refused to do and insisted on knowing what he was being asked to
sign. Downes thereupon directed O'Connor to see Baker the next
morning and, in the meantime, reported the incident to Baker.
400 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
The following morning, July 20, 1940, O'Connor went to Baker as
directed and complained that Downes had asked him to sign some-
thing he did not have an opportunity to read. Baker then showed
him the notice, read it to him and- asked O'Connor to keep the original
and acknowledge its receipt on the carbon copy. In making this re-
quest, Baker wrote at the botttom of the carbon copy, "Receipt acknowl-
edged" and asked O'Connor to sign it. O'Connor refused to do so
and challenged the accuracy of the statements contained in the notice.
Baker attempted to explain to O'Connor that the notice was only a
warning that he had been neglecting his work, but O'Connor's reply
was to pound on Baker's desk and demand proof of the truth of the
statements in the notice . At this stage, Baker told O'Connor that other
complaints had been received about him; that he ( Baker ) did not like
his conduct in pounding the desk and that he would see him (O'Connor)
a little later . Baker immediately reported the incident to Tims who,
in turn, took counsel with Phelps and on the latter's advice ; instructed
Baker to discharge O'Connor. Baker did so, gave O'Connor 9, weeks'
pay and told him not to come back into the shop.
One other such notice had been given to an employee in the com-
posing room who is still employed there . There is no evidence that
such notices were adopted for application solely to union men.
We find that O'Connor was discharged because of his refusal to
acknowledge receipt of the warning and because of his insubordinate
conduct toward Baker when the warning notice was tendered to him,
and not because of his union affiliation or activities.
Albert P. Stoddard is a linotype operator who had been contin-
uously employed by the respondent from August 1933 up to the date
of his discharge on June 3, 1940 . His average annual earnings at the
time of his discharge were between $3,000 and $3 ,200, and his ability
to perform the work required of him is not questioned . In the heated
controversy over union organization of the composing room, Stod-
dard was the outstanding leader of the union forces and, as has been
noted, was the target at whom gibes intended for the Union were
directed. Stoddard had joined the Union in 1926 but a year later
allowed his membership to lapse. In 1937 he attempted to organize
the composing room and on February 19, 1940, he voluntarily re-
instated his membership in the Union . He wrote and circulated two
leaflets urging employees to join the Union. His foreman, Powers.
testified, "Stoddard was supposed to be one of the leaders in the
union activities around there. I think everybody knew that." As
we have noted above, Powers at one time felt impelled to warn Stod-
dard and other union leaders that Tims had threatened to cease
publishing the "States" if union activity continued.
In the early stages of the Union's organizational campaign , Robert
Fox, a composing room employee, became an applicant for mem-
THE TIMES-PICAYUNE PUBLISHING COMPANY 401
bership. Fox had become heavily involved in "small loan" borrow-
ings and during the union activities induced Stoddard to endorse some
of his notes. Shortly before the election, Fox repudiated his union
application and also announced that the intended to go into bank-
ruptcy to rid himself of his obligations. Stoddard had been trying
to work out an arrangement among the various endorsers of Fox's
notes to pool the obligations and liquidate them by periodic payments
to which the endorsers would contribute. Nothing came of this,
however, and Fox's announced intention of "getting out from under"
and leaving Stoddard (and the other endorsers) primarily liable on
the notes, together with Fox's, abandonment of the Union, gave rise
to a strong feeling of resentment on Stoddard's part. When, on or
about May 30, 1940, the company holding Fox's notes brought suit
on them and joined Stoddard as a party, an open breach had
developed between the two men.
On the night of Friday, May 31, 1940, Stoddard, with Albert J.
Lewis and several other composing room employees, engaged in a
drinking party after they had finished work at about 10: 30 p. m. The
.drinking continued throughout the night and at about 6 a. m., Stod-
dard and Lewis went to the former's apartment. Stoddard had be-
come highly intoxicated and, in that state, became progressively more
resentful of Fox and of what he considered to be mistreatment of
the union men in the composing room. He was due to report for work
at 10: 15 a. m. At about 9 a. m., in the presence of Lewis and Mrs.
Stoddard, he telephoned to James Powers, his foreman. Powers'
testimony concerning what was said during the conversation was
not questioned by Stoddard, who admitted that he had only a vague
recollection of what occurred. Powers testified that Stoddard stated
that he was not coming to work, that Stoddard was apparently drunk,
and that in-response to Powers' question as to why he was not com-
ing to work Stoddard said, "You know how things are around there.
I am so damned mad I am just not coming to work." Powers there-
upon asked, "Why don't you just call in sick . '. . and ask to get
off, or just ask to get off? We don't have a lot of copy, and you could
get off." Stoddard refused and stated that "he wanted to stay off,
and he wanted to make an issue out of it." Stoddard also made a
statement to the effect that since the election the "office was putting
so much heat on the union members that he was just trying to give
the other boys an example of courage." During the conversation
Powers mentioned Baker and Stoddard replied, "You know how I
feel about that `S. B.' I am fed up with things, and I am not com-
ing to work." After speaking with Stoddard, Powers spoke with
Lewis and with Mrs. Stoddard and, according to his testimony,
"pleaded with them not to do it that way ... because I felt some-
thing was going to happen." As a part of the same telephone call,
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stoddard asked to be allowed to speak to Fox. When Fox took the
telephone, Stoddard abused him over the fact that he had allowed
Stoddard to be dragged into litigation and threatened to "beat him
up." Fox, whose financial entanglements were well known to the
composing room employees and who was made the butt of joking
remarks concerning them, called several other men to listen to Stod-
dard or to talk with him. Each of them recognized Stoddard's in-
toxication and made something of a joke of his threats to beat up
Fox. About half an hour later, Powers reported to Baker that
Stoddard would not be in. According to Baker's testimony he asked
Powers, "Well, what else did he say, Jimmy? Tell me the whole
conversation in detail." Powers told him of the conversation, ex-
plaining that Stoddard was very drunk and had refused to ask for
time off. He also told Baker that Stoddard had cursed him (Baker)
during the course of his conversation. Within a few minutes Robeson
and Primeaux, both of whom were actively anti-union and who had
listened to the conversation between Stoddard and Fox, reported
to Baker what they had heard. Baker called Fox and questioned
him about his talk with Stoddard. Baker immediately reported the
incident to Tims, who in turn reported it to Phelps. A meeting of
Tims, Baker, and Phelps was held and, on, Phelps' advice; Baker
determined to discharge Stoddard, but did not so inform Powers.
At about 11 o'clock in the morning of the same day, Mrs. Stoddard
telephoned to Baker to announce that Stoddard was unable to be in.
Baker told her that Stoddard had already been in communication
with the office, but that in any event, Mrs. Stoddard's call was pretty
late since Stoddard's starting time was 10: 15 a. in. He did not
mention his intention to discharge Stoddard at that time. In the
late afternoon or evening, after Stoddard had awakened from a sleep,
Mrs. Stoddard told him he had been rude in his conversation with
Powers and suggested that he telephone Powers and apologize for
what had been said. Stoddard did this and in the course of that
conversation, asked Powers whether he should come in at the regular
time on Monday morning, this being Saturday afternoon. Powers
told him to do so. He reported for work Monday morning, June 3,
1940, and was told by Baker that he was discharged, no reason for
the discharge being given. Since the discharge, the respondent has
continuously refused to reinstate Stoddard in any employment and has
advised Stoddard that he must at all times remain away from the
composing room at the respondent's plant. Stoddard is now employed
at Dallas, Texas, away from his home and family in New Orleans,
and desires to return to his employment with the respcnder.t.
The complaint alleged that Stoddard was discharged because of his
membership in and activity on behalf of the Union. The respondent
contended that Stoddard was discharged because of his refusal to re-
THE TIMES-PICAYUNE PUBLISHING COMPANY 403
quest tilne off. In this connection Baker testified, "No, I did not testify
that he was fired because he did not report on time for work, and I did
not testify that he was fired because he cursed me. That was not the
whole reason. The reason that Stoddard was discharged was because
he refused to request to get off." 6
The evidence shows, and it is not seriously questioned that a substan-
tial proportion (admittedly between 25 and 75 per cent) of the opera-
tors in the respondent's composing room are heavy drinkers who fre-
quently incapacitate themselves for work by becoming drunk; that on
such occasions they telephone to their respective superiors prior to the
hour for going on shift and are excused for the day. No penalty is
attached to such absences except loss of pay for the time out. Baker
and Powers admitted that Powers had authority to excuse Stoddard
and Powers admitted that he had on other occasions "covered up" for
employees who had called in while drunk to say they were not coming
to work. Intoxication of composing room employees and the accom-
panying profanity, abusive conversation and similar conduct so fre-
quently indulged in by drunken persons is not a new experience to the
respondent's composing room foremen and superintendents and has
been habitually overlooked by them as an incident of employment in
the composing room of the respondent. Both foremen and non-super-
visory employees have, at times, appeared there in an intoxicated con-
dition and indulged in abusive language and attempted to provoke
fights in the presence of those in charge, without suffering any dis-
cipline., Some examples of such occurrences will serve to throw light
upon the action of the respondent in discharging Stoddard.
Stoddard testified that on one occasion Fox came into the office while
drunk and sat at Baker's desk in the latter's absence, that although
Foreman Hendricks asked him to leave he did not do so and that later
when O'Connor asked Fox for 25 cents which Fox owed him, Fox
threatened O'Connor, whereupon Hendricks again told Fox to leave.
Fox denied that he had ever come into the plant drunk. We do not
credit his testimony.
Stoddard further testified, and Foreman Powers admitted, that dur-
ing the height of the Christmas rush in 1939 Harry Smith, a non-
union employee, called Powers and asked permission to get off work;
when Powers refused, Smith said, "Let me speak to that son-of-a-bitch
Baker. I am going to tell him I am drunk and I am not coming to
work." Powers explained that Smith "meant no offense" and that it
was "funny."
6 Tims testified , "Mr. Stoddard was fired for calling up and speaking to Mr. Powers and
saying he was not coming to work, and he did not want to be reported as not coming to
work , because he wanted to take the pressure off the other boys , and he used profane
words in talking of his superior , Mr. Baker."
448692-42-vol. 32-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Fisher related an incident which occurred shortly after
Robinson became a foreman. He testified that Robinson returned to
the plant after his working hours, that he appeared to have been drink-
ing and that he cursed Fisher so loudly that Foreman Hendricks, "who
is practically deaf," heard him at a distance of 40 feet and came over
and led Robinson away. Robinson denied that he was drunk and in
this was corroborated by Lewis. However, Robinson did not deny
that he created a scene in the plant.
In February or March 1940 Foreman Powers told Johnson "to go
back into the ad room, that Eddie Huber was teed up and in no condi-
tion to work." Huber is not a union member and is still working.
Baker was questioned about an occasion when one Jack Siebert left
the composing room to go to lunch and failed to return, but instead
went to a saloon, where he stayed all night, and the next morning
came in, put on his street clothes and "publicly stated that-he abdicated
his job." Baker testified, "I remember something about that, but my
recollection is that he called up and said he wanted to take the rest of
the night off, and he got into a poker game and stayed there drinking
all night, and he came up the next day and got his clothes." Baker
was asked, "He did not ask you to get off?" He replied, "He might
have asked the head of his department."
The reasons given by the respondent for Stoddard's discharge do
not convince us that, in the absence of other circumstances, Stoddard,
after 7 years of satisfactory service, would have been discharged for
the drunken statements made by him to Powers. The customs and
practices in the respondent's composing room reflect the exact con-
trary, especially since there is no evidence that Stoddard had, at any
previous time, done similar things. On the other hand, the antipathy
of the respondent's foremen to the Union in general, and Tims' atti-
tude toward Stoddard in particular, as reflected in his toast given at
the celebration on the night of the election, point to the conclusion
that Stoddard's conduct on June 1, while drunk, was the excuse and
not the reason for his discharge. The reason that gave rise to seizing
this incident as an excuse was his leadership and activity on behalf
of the Union. We find, as did the Trial Examiner, that the respondent
discharged Stoddard and thereafter refused to reinstate him because
of his membership in and activity on behalf of the Union and that
it thereby discouraged membership in the Union and interfered with,
restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 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 connection with the operations of the respondent de-
THE TIMES -PICAYUNE PUBLISHING COMPANY 405
scribed 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
We have found that the respondent by varying methods has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7. This course of conduct discloses
a purpose to defeat self-organization and its objects. Because of the
respondent's unlawful conduct and its- underlying purpose, -we are
convinced that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed and that danger
of their commission in the future is to be anticipated from the course
of the respondent's conduct in the pasta The preventive purpose of
the Act will be thwarted unless our order is coextensive with the
threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby to minimize industrial strife which burdens and
obstructs commerce,,and thus effectuate the policies of the Act, we will
order the respondent to cease and desist from in any manner
infringing the rights guaranteed in Section 7 of the Act.
Since we have found that the respondent discharged Albert P.
Stoddard because of his activity on behalf of the Union, we shall
order it to cease and desist from such practices and to take certain
affirmative action which we deem necessary to effectuate the policies
of the Act. We shall order that he be reinstated to his former or
substantially equivalent position without prejudice to his seniority
and other rights and privileges, and that he be made whole for any
loss of pay he has suffered by reason of the respondent's discrimina-
tion against him by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from the
date of his discharge to the date of the offer of reinstatement, less
his net earnings ' during-such period.
Since we have found that the respondent did not discriminate
against O'Connor, we shall order that the complaint be dismissed as
to him.
See N L R B v Express Pubttshing Company, 312 U. S. 426
' By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incuiied by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for the unlawful
discrimination and the consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. National Labor
Relations Board, 311 U. S. 7.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, and upon the, entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Typographical Union, unaffiliated, is a labor
organization within the meaning of Section 2(5) of the Act.
2..By interfering with, restraining, and coercing its employees
in the exercise of, the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Albert P. Stoddard, thereby discouraging membership in
the Union, the respondent has engaged in and,is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act with respect to
Thomas J. O'Connor. '
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor. Relations Board hereby orders that
the respondent, The Times-Picayune Publishing Company, New
Orleans, Louisiana, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in the International Typograph-
ical Union, unaffiliated, or any other labor organization of its em-
ployees by discharging and refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their
hire an tenure of employment or any term or condition thereof;
(b) In any other manner interfering with, restraining or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to A. P. Stoddard immediate and full reinstatement to
his former position without prejudice to his seniority or other rights
or privileges;
THE TIMES -PICAYUNE PUBLISHING COMPANY 407
(b) Make whole A. P. Stoddard for any loss of pay he may
have suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he normally
would have earned as wages from June 3, 1940, to the date of the
offer of reinstatement, less his net earnings during such period;
(c) Post immediately in conspicuous places throughout its plant
in New Orleans, Louisiana, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a) and (b) of this Order;
and (3) that the respondent's employees are free to become or remain
members of the International Typographical Union, unaffiliated, and
that the respondent will not discriminate against any employee be-
cause of membership or activity in that organization;
(d) Notify the Regional Director for the Fifteenth Region, in
xyriting, within ten (10) days from the receipt of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act by discharging and refusing to
reinstate Thomas J. O'Connor be, and it hereby is, dismissed.
MR. EDWIN S. SMITH, dissenting in part :
I disagree with the finding of the majority that the respondent has
not discriminated with respect to the hire and tenure of employment
of Thomas O'Connor.
O'Connor was the most active proponent of the Union among the
younger men. He assisted Stoddard in organizing the composing
room and became conspicuous because of his many conversations with
other employees concerning the Union. As the majority finds, the
respondent was aware of O'Connor's union activity. On June 3, 1940,
the respondent discharged Stoddard, admittedly the leader of the
Union in the plant. On July 20 it eliminated the most active union
member among the younger employees by discharging O'Connor. The
respondent contended that O'Connor was discharged because he refused
to acknowledge receipt of a warning notice and was guilty of insubordi-
nate conduct toward his superior, Baker. I cannot agree with the
finding that the respondent dismissed O'Connor for these reasons.
O'Connor was first presented with the notice by Downes, his fore-
man, who refused to allow him to read it before acknowledging its
receipt. O'Connor was justified in becoming suspicious of such pro-
cedure. On the following day he was again asked to sign the warning
notice by Superintendent Baker. O'Connor insisted that the state-
ments contained therein were not true, refused to acknowledge its
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt and demanded proof of its accuracy. Baker thereupon told
O'Connor that other conipla nits had been made against him by Downes
and shortly thereafter discharged him. I think it is significant that
Downes, who is alleged to have reported O'Connor's shortcomings,
did not testify at the hearing. Moreover, O'Connor testified that
Downes did not work nights and therefore did not have an opportunity
to observe O'Connor. Baker had no direct knowledge of O'Connor's
work or habits but he refused to consider O'Connor's contention that
the statements made in the notice were not true. O'Connor's reaction
to this refusal must be viewed in the light of the respondent's attitude
toward the Union, of which O'Connor was a prominent member, at
this time.
The respondent, jubilant over the defeat of the Union in the election
on May 20, was determined that this result should remain permanent:
The celebration of that defeat and its advice to employees to withdraw
from the Union left no room for doubt as to the respondent's wishes
in the matter. It made a rule prohibiting conversation among em-
ployees and thereafter enforced it only against those sympathetic to the
Union. The notice given O'Connor contained a reprimand for talking
while on duty, which was merely another example of the discrimina-
tory application of the rule. Furthermore, only two such notices have
ever been given by the respondent-both to members of the Union.
Stoddard's discharge shortly after the election added to the impression
gained by employees that, the respondent was attempting to stifle the
Union completely. O'Connor's attitude toward Baker is not surpris-
ing when these factors are considered. O'Connor alleged insubordina-
tion was provoked by Baker's refusal to substantiate the charges
against O'Connor and by its attitude of discrimination against mem-
bers of the Union.
The majority decision cites a number of examples of misconduct
condoned by the respondent, and there are other examples in the record,
which make it difficult to believe that O'Connor's action in pounding on
Baker's desk was considered such insubordination as to merit dismissal.
The respondent took no^action against employees for insubordination,
drunkenness,- cursing, and fighting in the plant but contended that
because O'Connor pounded on Baker's desk he was considered guilty of
insubordination requiring dismissal. The history of the respondent's
relations with its employees as disclosed in the entire record belies
that contention. I think that it is abundantly clear that the true reason
for O'Connor's discharge was his membership in and activity on behalf
of the Union and that his asserted insubordination was simply a pretext
seized upon by the respondent to justify a discriminatory discharge.
Under all the circumstances, I would find that the respondent has
discriminated with ,regard to the, hire and tenure of employment of
Thomas O'Connor.