Wichita Eagle & Beacon Publishing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 360 (N.L.R.B. 1972)

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wichita Eagle & Beacon Publishing Co., Inc. and
Wichita Newspaper Guild , affiliated with The News-
paper Guild, AFL-CIO. Case 17-CA-4800
September 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On May 8, 1972, Trial Examiner Ramey Dono-
van issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Wichita Eagle & Beacon Publishing
Co., Inc., Wichita, Kansas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RAMEY DoNOVAN, Trial Examiner : A charge and an
amended charge were filed on August 18, 1971, and on
January 10, 1972 , respectively, by Wichita Newspaper
Guild , affiliated with The Newspaper Guild, AFL-CIO,
herein the Union , against Wichita Eagle & Beacon Pub-
lishing Co ., Inc., herein the Respondent, the Company, or
the Employer. The complaint, issued on January 11, 1972,
was amended at the instant hearing pursuant to a notice of
intention to amend . As amended, the complaint alleged
threats of reprisal against employees because of union mem-
bership and activity and that Respondent had transferred
employee Dorothy Wood from its editorial department to
its Sunday magazine department because of her member-
ship and activity in the Union, all in violation of Section
8(a)(1) and (3) of the National Labor Relations Act, herein
the Act. Respondent in its answer has denied the commis-
sion of the alleged unfair labor practices . It has also, in its
answer, invoked specified constitutional provisions and
amendments to support its affirmative contention that
Wood and other editorial writers are not "employees" with-
in the meaning of the Act and that the National Labor
Relations Board, herein the Board, has no jurisdiction "as
to the employment relationship of such persons." The case
was tried in Wichita, Kansas , on March 2 and 3, 1972.1
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent is engaged in the publishing, sale, and dis-
tribution of daily newspapers and has its main office and
principal place of business in Wichita, Kansas. In the course
of its newspaper operations, Respondent has an annual
gross volume of business in excess of $200,000. Respondent
holds membership in, or subscribes to, interstate news serv-
ices, publishes nationally syndicated features, and advertis-
es nationally sold products.
At all times material, Respondent has been and is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The Union has been and is, at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent employs approximately 667 full-time and
127 part-time employees. From Monday to Friday Respon-
dent publishes the Wichita Eagle, a morning paper, and the
Wichita Beacon, an evening paper. A combined edition, the
Wichita Eagle & Beacon, is published on Saturday and on
Sunday. There were approximately 143 persons employed
in the news and editorial department. The Eagle employed
55 employees and the Beacon 36; 53 employees were em-
ployed in sections that served both papers.
In the spring of 1970, the Union commenced organiza-
tional activities among Respondent's employees. A petition
for certification was filed with the Board by the Union in
August 1970. Thereafter, in September 1970, the Board con-
ducted a hearing on the petition. All parties participated in
the hearing. On November 30, 1970, the Board, through its
Regional Director, issued a Decision and Direction of Elec-
tion.
The aforementioned decision found that the following
was an appropriate bargaining unit:
All employees of the news and editorial department of
the Wichita Eagle & Beacon Publishing Co., Inc., in
Wichita, Hutchinson, and Topeka, Kansas, excluding
professional employees, guards and supervisors as de-
fined in the Act, and excluding all other employees.
As disclosed in the decision, the parties had stipulated
in accordance with the record, and it was found, that the fol-
lowing positions within the news and editorial department
would be excluded as supervisors, confidential secretaries,
or as persons allied with management : (Eagle & Bea-
The General Counsel's motion to correct the transcript of testimony is
unopposed and is granted , including p . 259, 1 22, change "have waived" to
"have not waived."
199 NLRB No. 50
WICHITA EAGLE & BEACON PUBLISHING CO. 361
con)-editor and publisher, executive editor, secretary to
executive editor, state news editor, associate editor of public
affairs, editorial page editor, head librarian, chief photogra-
pher, and women's editor; (Eagle)-managing editor, night
managing editor, city editor, executive sports editor, sports
production editor; and (Beacon)-- managing editor, secre-
tary to managing editor, assistant managing editor, and
sports editor.
In addition to the foregoing exclusions from the unit,
the Board excluded, as supervisors, two assistant city editors
(Eagle) as contended for by the Company. Contrary to the
Company's position, the assistant chief photographer was
found not to be a supervisor and was included in the unit.
Although the women's editor was excluded as a supervisor,
it was found on the evidence in the record that the women's
news editor was not a supervisor and she was included in
the unit. The Company had contended that two editorial
writers, Dorothy Wood and Theodore Blankenship, were
supervisors and should be excluded from the unit. The
Board found, however, that the two editorial writers were
not supervisors and that they did not possess the mdicia of
managerial employees. Their positions, therefore, were in-
cluded in the unit?
Following the aforedescribed Decision and Direction
of Election, the Employer filed with the Board a request for
review of the Decision and Direction of Election.3 The re-
quest for review was limited to the matter of the inclusion
in the unit of the two editorial employees. About December
31, 1971, the Board denied the request for review on the
ground that "it raises no substantial issues warranting re-
view."
An election was conducted by the Board on January 6,
1971, in the unit that it had determined was appropriate.
Thereafter, in January 1971, the Union was certified as the
collective-bargaining agent. The Company and the Union
commenced contract negotiations in March 1971. At the
time of the instant hearing, agreement on a contract had not
yet been achieved.
Dorothy Wood
Wood commenced work on the copy desk of the "old"
Wichita Beacon in 1957. After about a year she became an
assistant to the editor of the editorial page of that paper.
When the Eagle purchased the Beacon in 1960, Wood was
offered a position with the Eagle, the Beacon having been
discontinued as such. She worked for the Eagle for several
months as the education writer. In December 1960, Wood
2 Inter aha, the Board decision , is referring to the two editorial writers,
stated:
Record testimony reflects that neither Blankenship nor Wood possess
any indicia of statutory supervisory authority. All three writers [Blank-
enship and Wood and Pearson , editor of the editorial page; Pearson was
excluded from the unit in view of his supervisory status over Blanken-
ship and Wood ], including the editor , have individual offices, and are
under the direct supervision of the editor and publisher [Colburn] and
major stockholders of the Company , with respect to questions of editori-
al policy. There is nothing in the evidence to indicate that the two
editorial writers , in any way, possess indicia of managerial em-
ployees. .
3 The Decision and Direction were by the Board 's Regional Director act-
ing pursuant to duly delegated authority of the Board. As provided, the
Employer's request for review had been directed to the Board itself.
left the paper to become assistant editor of a magazine. She
returned to the newspaper in October 1963. The newspaper
was then publishing as the Wichita Eagle & Beacon. At the
time of her return Wood had been asked to work in the
editorial page department. However, Colburn, editor and
publisher, had then asked her, when she returned, if, instead
of the foregoing editorial page work, she would be editor of
the paper's Sunday's magazine. Wood held the latter posi-
tion until about February 1965. Apparently because of
some change in the nature of the Sunday magazine, Wood
decided that she did not wish to continue working in that
section of the paper. She applied for and received a transfer
to the editorial page department in February 1965.1 Wood
continued as a writer in the editorial page department until
August 16, 1971, when she was involuntarily transferred to
the position of editor of the Sunday magazine.
As the Board found in the representation case, previously
described, and as the evidence in the instant case shows, the
editorial page department of Respondent consists of three
people. Pearson, editor of the editorial page, was an ac-
knowledged supervisor of the two employees in the editorial
page department, Wood and Blankenship. The two latter
persons were writers in the editorial page department. In a
real but perhaps ex officio sense , Colburn, editor and pub-
lisher, was also part of the editorial page department. Pear-
son reported directly to Colburn and no editorial, whether
written by Pearson, Wood, or Blankenship, was published
without prior submission to, and clearance by, Colburn.
Insofar as the two writers were concerned, editorials written
by them were initially subject to Pearson's scrutiny, review,
and clearance, and they were subject to his direction and
supervision.
The foregoing organizational structure of the editorial
page department discloses that the two writers, Wood and
Blankenship, are indians rather than chiefs. The two man-
agement supervisors are quite clearly Colburn and Pearson.
Wood and Blankenship are the editorial page people who
are supervised. They themselves possess no indicia of a
supervisor as the term is defined in the Act, broad though
the definition is .5 The two writers supervise no one in their
own department or in any other department.
In the relationship of the Employer (management) to its
employees regarding wages, hours, and working conditions,
the two writers have no management role nor any other role
distinguishing them from other employees. The area of an
employer's relationship to its employees regarding the
latter's wages, hours, and working conditions is the crux and
the ambit of the Act. Congress has recognized that those
who represent and act for management in the employer-
employee arena are management's agents and are not em-
ployees. They are excluded from alignment or inclusion
with employees when the latter deal with management
through a labor organization.
In addition to having no management role or participa-
tion in employer-employee relations, there is no evidence or
contention that Wood or Blankenship were participants in
or privy to basic ownership and management policies in the
Referring to the Sunday magazine , Wood, in her testimony stated that
she thought "it was abominable and I didn't want to edit it any longer and
I asked if I could go back to the job that I originally applied for and had been
asked to apply for" (i e ., editorial page writer).
3 Sec 2(11)
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area of profit and loss, capitalization, stock issuance, stock
distribution or ownership, acquisition or disposition of real
or other property or expansion or contention of the enter-
prise, or related management policy. Management policy or
views that were expressed in editorials were determined by
Colburn, the editor and publisher, or perhaps, ultimately, by
the owners of the newspapers.
We now examine the normal day-to-day operations and
activities of the editorial page department and of its person-
nel, including certain of their outside activities and
Respondent's rules relating thereto.
Although almost all descriptive terms are relative, we can
appropriately describe the editorial page people as creative
writers. They are craftsmen (and women) of the written
word and they are professional writers. They deal with
events and ideas in an intermeshed context. As individuals,
they are aware of and participate as members of the com-
munity in world, national, and local affairs; they read and
they ruminate; they discuss and confer, and they write.
Every witness in this case, including Wood, agrees that
the editorials of the newspaper function as the voice of
Respondent's ownership and management. What appears
in an editorial is the subjective viewpoint of management.
An editorial prepared by Wood or Blankenship must have
the approval of Pearson and Colburn before it is published,
with Colburn having the ultimate determination. Whether
the personal views of an editorial writer coincide or differ,
in whole or in part, from what management wishes to say
in an editorial, the editorial is written to reflect
management's views. Neither Wood nor anyone else has
disputed the foregoing standard either in theory or in prac-
tice. In any event, as aforementioned, no editorial is ap-
proved or published without Colburn's and Pearson's
clearance and approval.
Normal day-to-day procedure, in the editorial page de-
partment, was the holding of a midmorning conference,
with Colburn, Pearson, Wood, and Blankenship participat-
ing. In turn, at the conference, Pearson, Wood, and Blank-
enship would be asked what he or she had in mind for an
editorial. Wood, for instance, when thus asked, might say
that she had in mind writing a piece on ecology. Colburn or
Pearson might say that we had an editorial on air and water
pollution last week so we will not go on ecology again at this
time. That would dispose of Wood's proposal. Or, for in-
stance, Colburn might have responded to Wood's proposal
in the following vein: what particular aspect of ecology do
you have in mind; Wood would respond, with some details
and elaboration; the matter would then be discussed by
those present; Colbum might then say to Wood, "all right,
give it a try." On some other subject thus raised, Colbum
might make it clear that there were certain specific things
that he wished to be stated in the particular proposed edito-
rial; e.g., the theme of the editorial should be that, on bal-
ance, after weighing the arguments pro and con, the
Government should proceed with the development of the
supersonic transport plane because of the need to maintain
leadership in the field of air transportation and because of
the need to maintain a viable aerospace industry and the
tens of thousand of jobs involved in that and in satellite
industries .6 The editorial writer would follow such a direc-
6 The Trial Examiner is, of course , stating a supposititious case in order
tive.
Following the foregoing type of daily conference with
Colburn, Pearson, Wood, and Blankenship would return to
their offices.? They would then get together in Pearson's
office and discuss at greater length topics that had received
tentative approval at the conference with Colburn. Views
and possibly conflicting contentions would be exchanged
and argued. In most instances it would be at this tripartite
conference that definitive editorial topics would be assigned
by Pearson, to Wood, Blankenship, or himself.
After a writer drafted or wrote an editorial, it was then
submitted to Pearson. He might approve it, disapprove it,
or prescribe changes or revision. If the editorial cleared
Pearson, it would then go to Colburn. Again, the editorial
might be approved, rejected, or rejected subject to some
particular revision being made.
Wood testified that in her more than 6 years as an editori-
al writer for Respondent there had been occasions when she
or another writer, at one of the aforedescribed editorial
conferences, might be assigned to a topic that was distinctly
unpalatable to that particular writer or concerning which
she believed she could not write with reasonably good con-
viction. In such situations, Wood, or whoever else might
find himself in a similar position, would ask to be excused
from the assignment. Management would customarily hon-
or such a request and would assign the topic to someone
else. However, there is no contention or instance in this
record where management, Colburn, or Pearson, told Wood
that, despite your feelings, we want you to write this editori-
al and she refused to do so or, where, under such circum-
stances, she failed to perform with professional competence.
As Wood credibly testified: if her request to be excused
from a particular topic was not honored, she, "like any other
employee [would have obeyed management's order]. I
would have put it [the topic] into writing for them because,
as he had said, that is our job to write out what
management's view is." Confirmation that Wood per-
formed her job as a professional writer in the manner that
Respondent prescribed is admitted by both Colburn and
Pearson. Colburn, for instance, was asked if it was not a fact
that Wood had "received her salary increases and you
found no fault and always thought she was a good employ-
ee?" He replied: "Obviously, or we wouldn't have kept her
on." This was true despite the fact that at times Colburn and
Pearson state that, in their view, Wood became "emotional"
about certain contentions or points of view. At various
times Colburn had complimented Wood on a particular
editorial that she had written.
In addition to writing editorials, the editorial page people
each had a column that appeared on the editorial page.
Unlike the editorials, the writers of the respective columns
were identified. Thus, Wood had a column called, "Ladies
Day" that appeared with her name and picture in the Wed-
to flesh out the clear import of testimony in the record describing the nature
of the editorial page conferences with Colbum.
7 The offices are on the third floor rear. The president or owner of the
Company occupies an office in the extreme southeast comer. Pearson 's office
is north of the president's, separated by a reception room and the office of
the president's secretary. The offices of the two editorial writers are next to
Pearson's. From this area, and on the same floor , there are, in turn , geograph-
ically, the library, the women 's section, the sports department , and then the
newsroom.
WICHITA EAGLE & BEACON PUBLISHING CO.
nesday night Beacon. The column was a personal opinion
type of thing where Wood could write about subjects that
interested her; e.g., a snow storm, a sermon she had heard,
women 's rights, and so forth .8 Generally, as contrasted with
the editorials, the writers did not discuss their column ideas
with Colbum or Pearson beforehand. However, carbon
copies of the proposed column were submitted to Pearson
prior to publication and he, in turn, would submit the car-
bon to Colburn. The column was not published without the
approval of Pearson and Colburn.
To complete the foregoing picture of Wood as an editori-
al page employee of Respondent since February 1965, the
type of subjects on which she customarily drafted editorials
and her outside activities are relevant. She focused on urban
topics and frequently wrote about schools and their prob-
lems." Welfare and women's rights were also within her ken.
Labor-management matters were not her topic. Indeed, ac-
cording to Wood's uncontroverted testimony, labor-man-
agement was an infrequent topic on Respondent's editorial
page.
Wood was, at all times during her employment, active in
various groups and organizations. She was active in the
National Conference of Christians and Jews; she was on the
board of KPTS, a public television station; she was a mem-
ber of Presswomen of the National Organization for Wom-
en; she had appeared publicly on television with the
aforementioned Presswomen ; she was a member of Fair
(Forum to Assure Individual Rights), an organization con-
cerned with the problems of welfare recipients; she was a
church member; a member of the board of the Heart Asso-
ciation. Wood had made no secret of her many outside
activities and frequently discussed matters with Pearson
that had arisen at meetings of these organizations. She had
neither sought nor received clearance from Respondent be-
fore joining or becoming active in these various outside
organizations and had never been admonished regarding
such activities.
Other persons working for Respondent also engaged in
outside activities. A city editor and a reporter serve as pre-
cinct committeemen for political parties.10 Colbum testified
that Respondent had granted permission for the foregoing
activity. In the last city election, both Pearson and Wood
were active in the selection and support of some candidates
for the city commission ." Colbum testified that during
some campaign Pearson had erected a sign in his yard for
a named congressman . Colburn states that he had ordered
Pearson to take down the sign but "it was not removed as
far as I [Colburn] know."
There were also other outside activities of persons em-
ployed by Respondent that had been discontinued at
Respondent's request. Colburn apparently came with the
paper in 1962 or 1963. At that time Perry was editor of the
editorial page . He was on the board of the Urban League.
According to Pearson, Colbum gave Perry the choice of
8 Pearson's column was entitled "Vagaries" and Blankenship's was called
"It's Not Serious"
9 At one time Wood had taught school.
tO The record is not clear whether they are both precinct committeemen
for the same political party (Democrat or Republican) or whether each is a
committeeman for a different party.
11 Wood and Pearson, as appears from the record , were good friends and
apparently shared a number of common viewpoints.
363
resigning from the board of the league or of severing his
employment with Respondent. Perry resigned from the
league's board. Colbum testified that when he joined
Respondent's staff, Mac Martin was writing pieces "for
politicians and specials and so on ... he did it rather notori-
ously and he worked both sides of the fence politically."
Also, Colbum states that he found that some sports writers
"were writing for certain promoters." The foregoing activi-
ties ceased with Colburn's advent and the issuance of a
handbook on Respondent's policies and rules."
In April 1971, a publication or paper called the Central
Standard Times appeared with a fairly long article head-
ed: '3
Newsman Make Payola Pay
Subtle Blatant Bribes Exist
On Every Paper in Country
After a few introductory comments, e.g., "Newsmen are
nothing without their scruples, their ethics and their inde-
pendence. Based on that statement, many newsmen are
nothing. `Prostitution' it's called on a more base level; payo-
la is the legal term. . ." and a quotation from a university
professor, the balance of the article castigates, by name,
Respondent's paper and various editors, writers, and de-
partments thereof. Disporportionateicoverage by the paper
of the local professional baseball team is ascribed to the
executive editor's personal financial investment in the team
and his baseball role in the chamber of commerce. Next, the
executive sports editor is alleged to have received and to be
receiving money from teams and sports organizations. The
article then asserts that "a situation unique to Wichita is the
relationship between the aerospace writer and the city's
aircraft company managers." This theme is developed by
mentioning perquisites allegedly received by the aerospace
editor; it is stated that recently it was virtually impossible
to have the newspaper's aerospace writer "gather facts for
a story unpalatable" to the aircraft company management.
Other departments and writers on the paper are similarly
accused of venality or corruption, including "incredibly bi-
ased editorial accounts"' regarding aspects of the prisoner of
war issue in Vietnam.
Colburn, upon learning of the foregoing article in the
Central Standard Times, wrote to each of the seven Wichita
Eagle and Beacon reporters because of their "connection
with some of the material that appeared in the April edition
of Central Standard Times ... [the] article infers through
deceptive reporting and writing that corruption prevails in
the newsroom ... other inferences were made ... that reflect
a lack of professionalism and a disrespect for your employer
[the Eagle and Beacon]." The letter cited provisions in
Respondent's Employee Handbook regarding employee
conduct. Colbum in the letter, then informed the seven
recipients that they had the choice to either disassociate
themselves from the Central Standard Times or to resign as
employees of Respondent.
TheEmployeeHandbook,thatemployeesof Respondent
received, described the paper's history and the rules, bene-
fits, and related matters that applied to employees. With
12 The relevant portions of the handbook are described, infra
13 From limited evidence in the instant record , the Central Standard Times
was evidently an "underground press" type of publication.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to editorial policy, the handbook stated, inter alia,
Label as editorial its [the paper's] own views or expres-
sions of opinion .... Stimulate and vigorously support
public officials, private groups and individuals to in-
crease the good works and eliminate the bad in the
community.
Serve as a constructive critic of government at all lev-
els, providing leadership for necessary reforms or inno-
vations ....
Under "Public Relations" the handbook declared,
You, as an employee, represent the Company in your
contacts with the public. Your conduct will have some
effect on the image others have of the newspapers. For
those who deal directly with the public in the course of
their work ... courtesy is required at all times ....
Telephone requests for information should be handled
politely ...
The next heading in the handbook is "Outside Jobs." It is
there stated:
Under certain circumstances, a company employee
may do limited outside work for pay if it does not
interfere with his duties to the company or impair his
efficiency. Such outside jobs must be approved by the
department head in advance.
Editorial and News Department employees are forbid-
den to serve as public relations writers for political
candidates or parties, or any group seeking to influence
news or editorial policy.
In the Trial Examiner's opinion the above "Public Rela-
tions" rules deal with employee "conduct" vis-a-vis the pub-
lic. That is, the employee should be polite, courteous, and
so forth since "your conduct will have some effect on the
image others have of the newspapers" and, in that sense, the
employee "represent[s] the Company in [his or her] contacts
with the public." The section does not purport to deal with
what kind of outside job, work, affiliations, or associations
are permitted or proscribed. By the same token, the section
on "Outside Jobs" is the guideline and the extent of the
guideline on outside activities or affiliations by employees.
The import of the caption, Outside Jobs, is borne out by the
text which speaks of "outside work for pay"; and the con-
cern about such "outside work for pay" is in terms of im-
pairment of efficiency or interference with the employee's
performance of his duties with the papers. As to editorial
and news department employees, who are subject to the
general rules of the sections dealing with "Public Relations"
and "Outside Jobs," there is an additional specific prohibi-
tion. They are not to serve "as public relations writer for
political candidates or parties" nor are they to serve as
public relations writers for "any group seeking to influence
news or editorial policy."
Having seen the manner in which the editorial page
department and its editors and writers operated, as well as
their outside activities, and the rules of Respondent's Em-
ployee Handbook, we come to Wood's activities which are
the crux of the instant case.
When the Union began organization activities among
Respondent's employees in the spring of 1970, Wood signed
a union card. She states that thereafter there was consider-
able talk or "whispering" going around about which em-
ployees had signed cards and which had not."'
Wood and Pearson were good friends. Soon after Wood
joined the Union she told Pearson of this fact at his home.
Pearson "became very grave" at this intelligence but said it
was Wood's choice and that he would do nothing to inter-
fere with her choice. However, he said that he wanted to
warn Wood as a friend "that consequences were likely to be
real severe." Without describing the consequences , Pearson
told Wood that the Company "would not like" the fact that
she had signed a card and that she "should be prepared for
any consequences."
As previously mentioned, the Union filed a petition for
certification with the Board in August 1970. A hearing on
the petition was held in September 1970, at which the Com-
pany, inter alia, opposed the inclusion of editorial writers in
the unit. In November 1970, but evidently prior to the Deci-
sion and Direction of Election dated November 30, 1971,15
Wood told Pearson that she had been invited to attend a
meeting in Chicago of women members of the Union. The
meeting was to be held on Saturday and Sunday. Wood
proposed to leave on Friday and work Monday of the fol-
lowing week instead of the Saturday of the meeting. In
short, she proposed a "swap" or trade of days off. 16 Pearson
said that he would ask Colburn. Pearson returned and said
that, although Colburn was not at all pleased, Wood would
be allowed to trade her day off. This was done and Wood
attended the meeting.
The Board election was held on January 6, 1971. Wood
was the union observor at the election.17 Thereafter, in the
same month, the Union was certified as the bargaining
agent for the unit. The local union has a president, vice
president, secretary, and treasurer. They and three other
union members comprise the executive committee or board.
On January 23, 1971, Wood was elected as one of the nonof-
ficer members of the executive committee.
In January 1971, after the Union was certified, the
four-party (Colburn, Pearson, Wood, and Blankenship) edi-
tonal conferences were discontinued. There was no an-
nouncement or proclamation but the conferences were no
longer held. The tri-party conferences of Pearson, Wood,
and Blankenship continued to be held as before and
Pearson's daily contacts with Colburn continued. For a
brief period Colburn and one or two other executives did
not speak directly to Wood but this situation did not contin-
ue. Colburn did resume calling and speaking to Wood about
this or that aspect of the work as had been the case previous-
ly. However, the four-party conferences were never resumed
while Wood continued as a, writer in the editorial page
department.
14 The other editorial writer, Blankenship, did not join the Union. Since
Wood was aware of this fact, it is quite possible that others were aware, at
least to some degree , of the union supporters and opponents. Blankenship
testified that, personally , he was opposed to the Union and felt that as an
editorial writer he "had the confidence of management" and that it was not
proper for him to join the Union.
1 It is probable that the parties did not receive the decision until December
1, 1970.
16 The Chicago meeting was evidently one called by the Union at the
request of its female members who wished to discuss the problems of their
sex as employees in the newspaper field
17 At Board elections , in addition to the Board agent, each party, the
WICHITA EAGLE & BEACON PUBLISHING CO.
In the period after' the editorial conferences with Col-
bum had been discontinued, Wood discussed the fact with
Pearson on several occasions in January 1971. Pearson told
her, "It is quite obvious that it is because the Company did
not want you to be in the Guild [the Union] and Mr. Col-
burn does not want to have editorial conferences with us
any longer. They made it a point that you are affiliated with
the Guild.""
Preparatory to beginning contract negotiations with
Respondent, the Union, in February 1971, elected members
to its negotiating committee. Wood was one of those elected
to serve on the committee.19 She participated in negotiations
thereafter 20
Colbum testified that in "late January or early Feb-
ruary, [1971]" and "after the Guild won the [Board] bargain-
ing election and Mrs. Wood became an officer of the Guild,
I advised Mr. Pearson that Mrs. Wood should not be per-
mitted to write any editorials regarding labor affairs."21
Pearson substantially confirms Colburn on this aspect.
Pearson informed Wood that Colbum had decided she was
not to write any more editorials on labor matters. Wood
asked Pearson the reason for this decision. Pearson replied
that Colbum considered that, as a member of the Union
and as a union negotiator, she was biased on labor matters
and therefore should not write editorials on that subject.
Wood protested that as a professional writer she could be
fair and unbiased no matter what her affiliations. Pearson
said he agreed with that and had so informed Colbum but
the latter had adhered to his desision.22
Although Wood testifed that she believed the above
edict regarding her not writing on labor subjects occurred
in May 1971, the evidence persuades us that this occurred
in late January or early February. However, there was an
incident around May 1971 that merits description.
From April into May 1971 the local public school
teachers, represented by the NEA, and the Wichita board
of education had been in negotiations regarding pay in-
creases for teachers. The evidence reveals no strike or threat
of strike. Apparently and predictably, the community
would be and was concerned about the failure of the parties
to resolve their differences in this important public sector.
In one of the intramural editorial conferences of the
type previously described, Wood proposed writing an edito-
rial on the above dispute.23 She outlined the substance of the
employer and the Union, has an observor that each selects. The observor
monitors the eligibility of voters and the conduct of the election
18 Wood was the only person in the editonal page department who was a
member of the Union
19 Negotiations began in March 1971.
20 Although Colburn was not one of the company representatives in nego-
tiations, he was in close contact with the company representatives regarding
various management proposals and bargaining positions
21 As we have seen, Wood became a member of the executive committee
of the local union (the Guild) after the Union was certified . She then was also
elected to be a member of the local union's negotiating committee. As the
term is customarily used , she was not an officer of the Union although, in
our view , this is not a determining factor one way or the other.
22 Pearson testified that Wood was a good employee and a good editorial
writer He said that as far as he knew she had never written anything exploit-
ing any prior activity that she was engaged in. Pearson also testified.
I believe I expressed to Mr Colburn that I had confidence in her compe-
tence and that I thought that she was a professional writer and that she
could write on these subjects.
23 Wood testified that she regarded the dispute as primarily a public school
problem involving the whole community rather than as a labor- management
confrontation.
365
editorial she had in mind. Pearson told her to go ahead and
prepare the editorial as outlined. Wood did so and submit-
ted the editorial to Pearson. This was around the middle of
May. Pearson read it and said that it looked all right to him.
Pearson took the proposed editorial to Colbum. The next
occurrence was a call from Colburn to Wood. Colbum
made it clear that he was not satisfied with the proposed
editorial. Colbum said to Wood that she had not been thor-
ough enough and that she should have talked to Darrell
Kellogg."' While Wood testified that she personally did not
think that contacting Kellogg was necessary, she did call
him as suggested by Colbum 25 Using some material fur-
nished to her by Kellogg, she drafted a second editorial. The
record does not show whether she had turned in this latter
editorial or was still working on it when Respondent did
publish an editorial on the school dispute.
The published editorial was written by Pearson. It was
quite apparently written at Colbum's direction after his
disapproval of Wood's proposed editorial. Since Pearson
had approved Wood's editorial, it is fairly evident that, in
addition to being directed to write a substitute editorial,
Pearson had received some kind of instruction from Col-
bum as to the tenor or direction of the desired editorial.
It is no concern of the Trial Examiner what Respon-
dent says or does not say in its editorial about the school
dispute. Our involvement in the matter of these particular
editorials is necessitated by Respondent's contention in its
brief that Wood's inability to write without bias on labor-
management is demonstrated by the episode of the school
dispute. Thus, Respondent asserts that "the salient facts
favorable to the school board" were not present in Wood's
proposed editorial as contrasted to the published editorial.
Although Wood admits her sympathies lay--with the
teachers, her editorial was brief and said nothing about the
merits of the issue in dispute or indicated a position on the
ments26 The sole theme and import of the editorial was that
"in the interest of the schools, the teachers and the public,
it looks like the time has come to ask for mediation in the
teacher contract negotiations." 27 Elsewhere, the editorial
stated:
Apparently the main difficulties came in interpretation
of facts, particularly whether there is money available
for salary increases on the scale asked by the teachers.
NEA-Wichita has figures showing the board has mon-
ey on hand; the board contends that it doesn't. Obvi-
ously, some outside person or persons is needed to
assess the facts.
The editorial published by Respondent also endorsed
and had the theme of mediation. In fact, as published, the
caption was "Why Not Mediation." The editorial stated:
The big dispute at the moment is over how much mon-
ey is really available for teacher salary increases. The
board uses one set of figures, the teachers another.
The editorial said that the board had done a better job in
24 Kellogg is not identified in the record but Respondent 's brief indicates
that Kellogg was a representative of the board of education , also referred to
as the "school board."
25 There is no claim or evidence that originally or later Wood had contact-
ed a representative of the NEA before writing her proposed editorial.
26 G C. Exh. 7.
27 A mediator's role is to attempt to help and persuade the parties to reach
agreement . Unlike an arbitrator or a court he cannot decide the issue or
impose a settlement or a decision.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explaining its figures than the NEA. It was then stated that
the board had a budget of a named figure; the board had
allocated increases it deemed necessary to transportation,
food service, equipment, administrators, etc., and, if the
raises asked by the teachers were given, this would be a
named figure over the budget total; budget increases of
more than 5 percent over the existing budget figure would
require a vote of the people. The editorial, however, again
endorsed mediation as a possibility offering hope of a "com-
promise or a reordering of priorities," that would resolve the
dispute.
We do not purport to know all the salient facts in the
school dispute and we would not express an opinion on
them in any event. The position of the Respondent, whether
pro school board or pro teachers or pro public or whatever,
does not concern us. Respondent at no time prior to her
writing the proposed editorial indicated to Wood that its
position was that the school board's position was more tena-
ble than that of the teachers and that this should be indica-
ted or stated in the editorial. Indeed, Wood's immediate
supervisor, Pearson, had approved her editorial. It is a dubi-
ous proposition that Wood should have known that Re-
spondent desired a tilt in the direction of the school board's
position. There was probably a great deal to be said on each
side of the contending parties. Wood's editorial did not
assay the merits of the dispute since she was sponsoring the
theme of mediation. Generally, if, for instance, the Govern-
ment, or a citizens' group, or a newspaper, is going to urge
mediation of a dispute, say, between the Longshoremen's
Union and the Shipowners, it, as the sponsor, does not in
the same breath indicate that it believes that one party to
the dispute has the more tenable position. Even a party
disposed toward mediation may have some second thoughts
if, in sponsoring the mediation, the sponsor has expressed
an opinion on the merits unfavorable to the aforesaid party.
Moreover, even after Colburn rejected Wood's editorial, he
gave no clear indication of what he wanted in the editorial
or whether he wanted the editorial to be down the middle
or in one rather than in another direction. Such directive as
he gave, i.e., to talk to Darrell Kellogg, was carried through
by Wood. In any event, we do not perceive in this episode
of the school editorial, evidence of Wood's bias on labor
matters or evidence of incompetence as a professional writ-
er. More importantly, we have difficulty in believing that a
person of Colbum's intelligence and experience in the news-
paper field believed that, despite his failure to approve
Wood's editorial, the proposed school editorial showed that
Wood was incapable of writing professionally and without
bias on labor matters.
Around August 5, 1971, Wood and some other women
in the community met together on two occasions. Their pur-
pose was to form a women's political caucus. They invited
women in the community tojoin the movement or organiza-
tion. On August 10 or 11, the Political Caucus of Wichita
Women was organized and temporary officers were elected.
Wood was elected coordinator, equivalent to chairwoman.
An executive committee was also selected. On the commit-
tee were women who were, respectively, teachers, writers,
computer programmers, production manager for a punting
and advertising company, a former chairman (woman) of
the Governor's Commission on the Status of Women, and
a member of the Wichita board of education.
A story describing the formation of the Women's Cau-
cus appeared in the Respondent's Eagle on August 11, 1971.
It was written under the byline of Respondent's women's
news editor, Diane Lewis. As described, the organization
sought to have women elected to public office and' have
them involved "in the mainstream of Wichita and Kansas
politics" and to bring women' s interests to the attention of
present elected officials. Represented were women from the
Democratic and Republican parties as well as Indepen-
dents. "Dorothy Wood, editorial writer for the Wichita Ea-
gle and the Beacon was named coordinator of the group."
Wood was quoted as stating:
We have become very concerned that although Kansas
women have been franchised for more than 50 years,
very few women have been elected to responsible of-
fices or hold high posts within the political organiza-
tions. This hampers all of society because 53 percent of
the population-women-is not adequately repre-
sented.
Also on August 10 or 11, Wood was interviewed briefly
for I or 2 minutes on a 6 o'clock news type televison show.
Wood explained what the Women's Caucus was and what
its goals were. She had been introduced as the coordinator
of the Caucus and, apparently, as is customary on such
programs, she was asked what her occupation was. The
answer of course was that she was an editorial writer with
the Eagle and Beacon 28
Neither with respect to the newspaper story about the
Caucus nor in the brief television news interview had Wood
written any press release or script. No effort was made to
convey and no impression was conveyed, in our opinion,
that Wood, and the other women officers and committee-
women were participating in the Caucus as official repre-
sentatives of their employers. They were participating as
individual women and came from all political parties and a
variety of occupations. The teachers' participation, for in-
stance, did not indicate that the city of Wichita was spon-
soring or was officially identified with the Caucus. Wood
and the other women officials were all identified by name
and occupation since such information is part of normal
identification and description in a newspaper or television
presentation. If Wood had been held up and robbed in
downtown Wichita, the news story, in print and on the air,
would no doubt state that last night, at the comer of X and
Y streets, Dorothy Wood, an editorial writer of the Eagle
and Beacon, was held up and robbed.
At no time after the August 11 newspaper report or
story about the Political Caucus of Wichita Women or after
28 About a month before the actual formation of the Caucus, Respondent's
Beacon had published an editorial entitled "Women 's Caucus " The editorial
was written by Wood. The editorial described a meeting of the National
Women 's Political Caucus and its goals, as well as a suggestion from that
organization that local women in Wichita and elsewhere form their own
caucuses . The editorial then spoke of the desirability of Kansas women
becoming interested in assuming a more active and prominent role in politics
and thus correct the unbalance in their political status. The editorial was
completely supportive of the idea of a Women's Political Caucus and with
particular focus on the participation of Kansas women in active and respon-
sible political roles Colbum testified that he does not take issue with what
the Women 's Political Caucus stands for and that he subscribes to many of
its ideals and policies In fact, there is no claim or evidence that Colburn or
Respondent was opposed to any of the goals or methods of the Caucus
WICHITA EAGLE & BEACON PUBLISHING CO.
the television news interview thereon, did Respondent re-
ceive mail or oral expression from its readers indicating
disapproval of the fact that one of its editorial employees,
Wood, was coordinator of the Political Caucus of Wichita
Women 29
On August 16,1971, Wood was summoned to Colburn's
office 30 When she presented herself, Colburn said that he
had something that was going to upset her and he preferred
that she simply read it and then they would discuss it later.
He handed her a letter or memorandum addressed to Wood
from Colbum. She read this memorandum:
As you are aware, the Company has had a long-stand-
ing practice that employees considering any type of
outside work must consult their department head to
make sure there is no possible conflict of interest or
that their position with the paper is not exploited by
other groups. On August 11, we carried a news story
reporting that you had become coordinator of A Politi-
cal Caucus of Wichita Women. Similar reports were
carried on radio and television and you made at least
one television appearance.
Charles Pearson advises me that he was not consulted
as to your accepting such a position nor was I consulted
in his absence. This is a violation of company policy.
Further, your leadership in such a movement dimin-
ishes further your value and performance as a member
of the Eagle-Beacon editorial staff. Your present in-
volvement with the Wichita Newspaper Guild has made
it necessary to prohibit your writing editorial commen-
tary on labor matters. [Emphasis supplied.]
Your leadership role in the Political Caucus is a conflict
of interest because you have been publicly identified as
an editorial writer and the public can question the cred-
ibility of the newspapers as to any comment we may
make, regardless of the merits of the program outlined
by the caucus or any future caucus projects that cannot
be forseen at this time. This is possible, even though
you have no hand in the commentary.
Therefore, because of the restrictions we must impose
on the subjects you can handle for editorial comment
and because of the limitations of the size of the editori-
al page staff, effective August 23 you are being trans-
ferred temporarily to the Sunday department with no
change in salary and with comparable working hours
until the executive editor works out a regular assign-
ment for you.
After making reference to the newspaper and television
publicity on the Women's Caucus and her role therein,
Wood asked Colbum why he had not said anything to her
before about the matter. He said that he first had wanted
to check with Pearson as to whether Wood had discussed
the subject with him.31 Wood then asked why Colbum had
29 In the Trial Examiner 's opinion, if the average citizen and newspaper
reader and television viewer learned or was told that this or that woman
writer, reporter, photographer, doctor, lawyer, saleswoman , or secretary was
active and prominent in a movement for women 's rights and equality in the
political field , he or she would be neither surprised nor concerned. By the
same token, there would be an equal lack of surprise and concern if it was
learned that this or that woman writer, saleswoman, or whatever was not a
member of or not active and prominent in a woman 's rights organization.
30 Pearson was on vacation in Minnesota during the entire month of Au-
gust
31 Colburn had telephoned Pearson in Minnesota and, as was the fact,
367
not told her that he objected to her being coordinator of the
Caucus. He replied that she should have known how he felt
about it. Wood said that if she had known how he felt and
that he objected so strongly she might have considered re-
signing as coordinator. Colbum repeated that she should
have known how he felt. He did not then give her the option
of resignation and, as we shall see from his testimony, he at
no time entertained the idea of affording Wood the option
of resignation of her position in the Caucus.
Wood was transferred to the Sunday department where
she served as editor of the Sunday magazine and a Sunday
TV supplement. Sparks, who had held the Sunday magazine
editorship until Wood's transfer, took her place in the edito-
rial department.
Wood states that, when she was still in the editorial
department, the fact that Sparks was not a member of the
Union was made known to Pearson in the course of office
conversation. Although Pearson denies knowledge of
Sparks' status vis-a-vis the Union, Colbum did not testify on
this aspect. In our opinion, it is highly improbable that
Colbum transferred Sparks to the editorial department
without being aware of and considering his union status.
Respondent and Colbum have consistently held the view
that editorial writers were part of management and should
not be in the Union. As the evidence shows, and as con-
firmed by Colbum's letter to Wood on August 16, 1971, her
"involvement with the Wichita Newspaper Guild" was con-
sidered a major disability in her employment as an editorial
writer and was at least one of two major factors in her
removal from that position. Under such circumstances, it
strains credulity to believe that Sparks' membership or non-
membership in the Union was not known, or ascertained
and considered before he was appointed as an editorial
writer in place of Wood.
Wood's duties as editor in the Sunday department were
more or less mechanical and involved little, if any, creative
writing. She handled copy, wrote headings, saw to the page
layout and makeup, and assigned some articles . At some
later point the Sunday magazine was discontinued and com-
bined with a section called "Modem Living." Wood wrote
half of Modem Living. She no longer edits TV week but,
since February 1972, she writes a television column. She
also edits the entertainment section for the Friday edition
of the Beacon . Wood testified that she considered her trans-
fer to be a demotion despite the fact that her salary re-
mained the same . The principal reason why she felt this way
was her interest in creative writing. Although management
scrutinized and cleared the work of the editorial writers,
Wood regarded the work as basically creative and certainly
more so than in the position to which she was transferred.
Colbum testified that Wood's transfer "was based on
the diminution of her talents as an editorial writer because
of her involvement in outside activities."
Q. And what was the outside activity?
A. One was the outside activity dealing as a labor
negotiator; two, coordinator of the Women's Caucus.
The Act which governs this proceeding does not as
such protect activities other than employees' union and con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection.32 Consequently, if the only
Pearson said that Wood had not consulted him.
32 Sec. 7 of the Act
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this case were that an employee named Wood was trans-
ferred from her job because of activities or role in the
Women's Political Caucus, the matter would not be cogniz-
able under the Act. But such is not the instant case. If we
accept the above-quoted explanation for Wood's transfer as
testified to by Colburn, one of the two reasons for
Respondent's action was Wood's union activities. Discrun-
ination against an employee for such a reason is illegal and
a violation of Section 8(a)(3) and (1) of the Act. This is true,
if, in addition to the illegal reason, the discrimination is also
due to another reason or two reasons, only one of which is
proscribed by the Act 33
But, Respondent apparently argues, Wood's union ac-
tivity is not protected by the Act because she was not simply
a member of the Union but was also on the Union's nego-
tiating committee and on its executive board. The Act, how-
ever, does not make the distinction that Respondent seeks
to make. In our opinion, the Act protects the right of an
employee not only to join a union but to assume an active
role therein. This includes the protected right to serve on
union committees whether the committees are contract ne-
gotiating committees, grievance committees, or whatever;
although Wood was not a union officer, an employee has
the protected right to be an officer in the Union. At such
time as an employee becomes a paid employee of a union
(or any other employer), e.g., if Wood had become a full-
or part-time paid representative or business agent of the
Union, she would be an employee of the Union. Her orig-
inal employer would no longer be obliged to retain her as
an employee and her employee rights under the Act would
relate to her union employer.34
Respondent then contends that while one of the two
reasons for Wood's transfer was her union activity,
Respondent's action was due to the fact that such union
activity impaired and undermined both her status and her
usefulness as an editorial writer. The record reveals the
factors used by Respondent in producing this proposition.
In the representation case and in the instant case,
Respondent's consistently held proposition and premise is
that editorial page writers such as Wood are part of manage-
33 "Even though part of the motivation for Weber's discharge might have
been a needed cutting of expenses, such circumstances could not be legally
used to effectuate a companion motive to rid the company of a union protag-
onist." NLRB. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A
6).
"We have repeatedly held `that if the discharge is because of union activity
it is a violation of the Act even though a valid ground for dismissal might
exist."' NLRB. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A. 5).
See also N LR.B v. Nachman Corp., 337 F.2d 421, 423-424 (CA 7)
34 There are a number of cases where unions, as employers, have been
involved in NLRB cases where their employees charged them with unfair
labor practices . In Retail Clerks International Association, AFL-CIO [Agents
& Organizers Assn.J v. N.LR.B., 366 F.2d 642 (C A.D.C), cert denied 386
U.S. 1017, the full-time paid International representatives of the Union had
joined another union in their status of employees of the International Union.
Among other grounds, their employer (the Union) vigorously contended that
the representatives were managerial people and not employees. In support
of this position it was pointed out that the International representatives were
the agents of their employer, the Union, and that the relationship was not
only confidential but possessed certain internal political aspects in addition
to the managerial role of International representatives in dealing with the
local unions and in dealing with employers . The Board and the Court rejected
these contentions and held that the representatives were employees under the
Act.
ment and are not employees. From such a premise it fol-
lows, as Respondent saw it and does now contend, that
editorial writers, since they are management people, cannot
and should not engage in union activities or be in a union,
because they cannot perform their management role since
their ability, effectiveness, and integrity as management
people writers is destroyed by their union association and
activity.35
The difficulty with the foregoing is that the all impor-
tant premise is without support. The Board has found, after
litigation of the issue, that editorial writers are employees
and Wood, as an editorial writer, is an employee in the
bargaining unit and is protected by the Act's provisions.
Further, the evidence in the instant case, in our opinion,
fully confirms that the editorial writers are employees.
While some employers have believed and others have
asserted the belief that an employee's affiliation with or
activity in a union impairs his loyalty, effectiveness, produc-
tivity, integrity, and so forth, such beliefs cannot negate the
policies and provisions of the Act. An employer's fiat of
belief cannot change an employee into a part of manage-
ment or remove the employee from the Act's protection.
On the sole basis of the legally untenable permise and
the syllogistic type reasoning flowing therefrom and de-
scribed in the second paragraph above, Respondent decided
that, because Wood was a union member and a union com-
mitteewoman, her effectiveness and integrity as an editorial
writer was impaired. Without any evidence that Wood, as
an admittedly competent professional editorial writer, had
not, or would not, or could not, write, as directed, editorials
expressing management's views, Respondent, after discon-
tinuing all full-scale editorial conferences for the quite ap-
parent reason that it was displeased that Wood was a union
member and activist, then barred Wood from writing any
editorials on labor subjects. Respondent now asserts that
since Wood's effectiveness and integrity as an editorial writ-
er was thus impaired by Respondent's fiat, this impairment
was one of the reasons for her transfer.
In important respects Respondent's position and con-
tentions in this case have been dealt with before. Thus, in
A. S. Abell Co., 81 NLRB 82, the Board stated:
The Employer states that it has carefully selected and
instructed its editorial writers, and that it insists that
they keep themselves free from outside commitments
which might impair their judgment or divide their loy-
alties. It contends that to ask such men to participate
in a union election is to ask them to compromise them-
selves, to yield part of their loyalty to an outside organi-
zation. The Board rejects this contention. We cannot
subscribe to the suggestion that participation in a union
election or membership in a labor organization "com-
promises" integrity or freedom of thought. The Su-
preme Court dismissed a similar argument, saying:
The order of the Board in nowise circumscribes
the full freedom and liberty of the Petitioner to
publish the news as it desires it published or to
enforce policies of its own choosing ... and ...
35 Wood was not an employee of the Union. In important respects, the
Union is the agent of the employees . It becomes the collective -bargaining
agent of the latter by the choice or vote of the latter. By a similar process a
union can be decertified by the employees and thus lose its status as bargain-
mg agent.
WICHITA EAGLE & BEACON PUBLISHING CO. 369
to discharge ... any editorial employee who fails
to comply with the policies it may adopt. (Associat-
ed Press v. N.L.R.B., 301 U.S. 103)
The above cited Associated Press case covers many matters
raised by Respondent in the instant case.
In the preceding paragraphs, we have accepted, arguen-
do, Respondent's contention that Wood's activities in the
Union and her activities in the Women's Caucus were the
reasons why her ability and effectiveness as an editorial
writer were impaired and thus led to her transfer. In that
context, we have concluded that Respondent's position is
legally untenable for the reasons cited above. We find that
Respondent has violated Section 8(a)(1) and (3) of the Act
by its transfer of Wood from the editorial department.
An additional approach to the issues in this case is
afforded by the fact that the evidence casts doubt on the
authenticity of Respondent's contention that Wood's activi-
ties in the Women's Caucus was one of the two causes of
her transfer. There is substantial indication that Wood's
union activities were the basic reason for the transfer and
that her Caucus activities were pretextually added as a rea-
son so that the transfer might not appear to be based solely
on her union activities.
After Wood joined the Union and informed her super-
visor, Pearson, of the fact, he warned her as a friend that
Respondent's reaction might be severe. When, thereafter,
Wood became active in the Union, Respondent discontin-
ued its customary full editorial conferences . Pearson, at that
juncture, told Wood that the situation was due to
Respondent's anger at her union activity. Next, Respondent
barred Wood from writing on labor subjects.36
Although Respondent had published an editorial fa-
vorable to the idea and objective of the Women's Caucus,
it later cited failure to secure prior clearance from Respon-
dent before becoming active in that organization as a reason
for her transfer. Respondent in its letter notifying Wood of
her transfer stated that on the Women's Caucus matter she
had violated company rules and policy. But a reading of
company rules as to outside activites, as set forth earlier in
our Decision, persuades the Trial Examiner that Wood vio-
lated no company rule on the subject of employee conduct
generally or on employee engagement in outside activity. As
to policy and practice, we have earlier described the variety
and types of outside activities in which Wood and others
had engaged in previously. In some instance prior clearance
had been secured from Respondent and, in other instances,
not.
Regarding those outside activities of which Respon-
dent had disapproved, the maximum action taken by Re-
spondent was to afford the employee or individual the op-
tion of resigning from the outside activity if he wished to
remain in Respondents employ. Thus, a former editor of the
editorial page who was a member of the board of the Urban
36 Respondent cites the fact that in the period after Wood became a union
member she received a pay raise and had also been allowed to attend a union
conference in Chicago. Both of these events occurred in 1970 before the
Union was certified and before Respondent was faced with the actuality of
having to recognize the Union. This was also before Wood was elected a
committeewoman in the Union. The pay raise of $25, raising her salary to
$225, was in August 1970, pursuant to a regular periodic review of perform-
ance of Wood in August . Since Respondent had no fault to find with her
work , it presumably had no reason to deny her a periodic raise at that time.
League was told to resign from the League or cease to be
in Respondent's employ 37 Seven of Respondent's reporters
were involved in writing an extremely strong and bare
knuckle attack on newspapers in general and upon Respon-
dent, its departments, and its editors, specifically. The arti-
cle, described above in some detail, appeared in the Central
Standard Times and its substance was that newspapers gen-
erally and Respondent, as a fairly typical example, were
flagrantly venal and corrupt. If venality and corruption are
not the worst accusations that can be made against a free
press in a democratic country, the Trial Examiner must
plead ignorance of greater sins. But even in this instance,
and in every other instance where Respondent disapproved
of outside activities, it took no greater action than to require
the seven reporters to resign either from the outside Stan-
dard Times or from Respondent. Wood was the only em-
ployee who was not afforded the option of resigning from
the disapproved outside activity (in this case, coordinator of
the Women's Caucus) as the price of continuing in the job
of editorial writer that she then occupied with Respon-
dent. Nor had Colburn ever entertained the idea of offering
Wood the option of resigning as coordinator of the Cau-
cus.38
The most reasonable, if not the only apparent, explana-
tion for Respondent's failure to tell Wood that she had the
option of resigning as coordinator if she wished to continue
as an editorial writer was that Respondent was so intent on
removing Wood from the editorial department because of
her union status that it did not wish to give her an option
or an "out" regarding the Caucus. In short, if Respondent
had given Wood the option of resigning as coordinator of
the Caucus and she did resign, she would still be in the
editorial department. And, as contrasted with Wood's role
in the caucus, Respondent could not legally give Wood the
option of resigning her union role or of forfeiting her job.
Her union role, being protected under the Act, was not one
that she need forsake as the price of continued employment
by Respondent. In this situation, therefore, in order to use
Wood's role in the Caucus as an ostensibly legitimate rea-
son, unconnected with union activities, for transferring her,
Respondent avoided affording Wood the opportunity to
resign as coordinator of the Caucus. Resignation would
have left Respondent with only one arrow in its bow and
that arrow was union activities, a risky course because of the
protection of the Act.
It is the Trial Examiner's opinion, therefore, that the
evidence supports either of the following conclusions and in
either case Respondent's action violated Section 8(a)(1) and
(3) of the Act: Respondent transferred Wood because of her
union activities and her Caucus activities; Respondent
transferred Wood because of her union activities; and the
37 Although it is of minor importance, Wood testified credibly and without
contravention that she was unaware that the former editor was a member of
the Urban League or that Respondent had told him to resign therefrom if
he wished to remain with Respondent.
3s Colbum testified:
A .. It came to me later that she could have resigned if I had brought
that question up.
Q Well, if she had said it [I will resign as coordinator ] right then, what
effect would that have been?
A None
Q. You had already made up your mind?
A. Yes, there was nothing else I could do.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caucus activities, from which she could have been asked to
resign but on which she was not given the opportunity to do
so, were used to color and diffuse the basic motivation
against her union activities.
Statements of Pearson to Wood to the effect that con-
sequences to her were likely to be severe because she had
become a union member and that she should be prepared
for any consequences since management was angry about
her union activities are found to be violative of Section
8(a)(1) of the Act. While it is true that Pearson spoke as a
friend and wished to help Wood by speaking to her along
the above lines, the statements conveyed a threat and thus
constituted interference , restraint, and coercion of an em-
ployee in the exercise of her statutory rights to join a union
and to engage in union activity. The impact of the state-
ments, coming as they did from a friend who was part of
management, was probably greater in view of the authentic-
ity and credibility of the source.
CONCLUSIONS OF LAW
Respondent has violated Section 8(a)(3) and (1) of the
Act by transferring employee Dorothy Wood, against her
will, from the editorial page department to the Sunday mag-
azine department because of the said Wood's union activi-
ties.
Respondent has violated Section 8(a)(1) of the Act by
telling employee Wood that consequences of her union
membership and activity might be severe because manage-
ment was angry about her aforesaid membership and activi-
ty -
Having found that Respondent has violated the Act, it
will be recommended that Respondent cease and desist
therefrom and take appropriate remedial action to remedy
its unfair labor practices.
Accordingly, Wood should be offered her former job
as a writer in the editorial page department, displacing, if
necessary, any present incumbent in her former job. She
should receive, upon restoration to her former job, her for-
mer salary at the time of her transfer on August 16, 1971,
plus any increase she would have received, absent her trans-
fer, since her last pay increase in August 1970, to the time
of the offer of reinstatement 39
Upon reinstatement to her formerjob Wood will enjoy
the status of any other writer in the editorial page depart-
ment without discrimination because of her union member-
ship or activity. By the same token, Wood will be subject to
the same lawful standards and requirements that Respon-
dent, as an employer, applies or may apply to its employees.
Inability or unwillingness of any employee to perform as
lawfully required by his or her employer subjects the em-
ployee to the employer's full power as an employer.
RECOMMENDED ORDER 40
Wichita Eagle & Beacon Publishing Co., Inc., its offi-
cers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activity in Wichita
Newspaper Guild, affiliated with The Newspaper Guild,
AFL-CIO, or in any other labor organization, by transferring
employee Dorothy Wood from her position as a writer in the
editorial page department because of her union membership
and activities.
(b) Interfering with, restraining, or coercing Dorothy
Wood or any other employee by statements that conse-
quences to Wood could be severe because of her union mem-
bership and activities in view of management's anger because
of such membership and activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer to Dorothy Wood immediate and full rein-
statement to her formerjob, without prejudice to her seniority
and other rights and privileges and make her whole, with inter-
est at 6 percent, for any loss of pay increases that she would
have received absent her discriminatory transfer on or about
August 16, as more fully described in the section of this
Decision entitled "The Remedy."
(b) Post at the office or offices of its newspapers in
Wichita, Kansas, copies of the attached notice marked "Ap-
pendix." 41 Copies of said notice, on forms provided by the
Regional Director for Region 17, after being duly signed by
Respondent's representatives, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to en-
sure that such notices are not altered, defaced, or covered
by other material.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all records
necessary to analyze the amount of backpay raises, if any, that
Wood would have received absent her discriminatory trans-
fer in August, 1971, including payroll records and
personnel memorandums and records.
(c) Notify the Regional Director for Region 17, in wnt-
ing, within 20 days from receipt of this Decision, what steps
have been taken to comply herewith.42
39 August 1971 was the periodic time for Respondent's review of Wood's
salary . Before leaving on vacation for the month of August 1971, Pearson,
Wood's immediate supervisor, had written a memorandum to Colburn.
Therein he reminded Colburn that it was time for review of Wood's salary
and that Pearson recommended an increase for Wood
40 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
41 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgement of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board"
42 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 17, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
WICHITA EAGLE & BEACON PUBLISHING CO. 371
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties participated and were
represented by attorneys, it has been found that we have viola-
ted the National Labor Relations Act in certain respects. To
remedy these violations, we advise you that:
WE WILL NOT discourage membership and activity in
Wichita Newspaper Guild, affiliated with The Newspa-
per Guild, AFL-CIO, or in any other labor organiza-
tion by transfering employee Dorothy Wood from her
position as a writer in the editorial page department
because of her union membership and activity.
WE WILL offer Dorothy Wood immediate rein-
statement to her former position as a writer in the
editorial page department and WE WILL pay her any
wage increases that she would have received in that
position if she had not been transferred in August 1971.
WEWILLNOT interfere with, restrain, or coerce Doro-
thy Wood or any other employee by statements to
Wood that consequences could be severe because of
her union membership and activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed by Section 7 of the National Labor
Relations Act.
Dated By
WICHITA EAGLE & BEACON PUB-
LISHING CO, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 610 Federal Building, 601 East
12th Street, Kansas City, Missouri 64106 Telephone 816-
374-5181.