Dailey News Tribune

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD many of whom, like themselves, have no direct contact with guests Their function in the operation of the hotel is not markedly different from that of housekeeping and custodial employees Both groups are engaged in maintaining the hotel premises and facilities in clean and serviceable condition, to the end that the Employer may successfully cater to the needs and desires of its guests, and both groups work throughout the hotel In some instances the work performed by maintenance employees and housemen is identical , and there is some interchange between them On the basis of the foregoing , we find that the employment interests of hotel maintenance employees are not, normally, sufficiently distinct from those of other employees as to com- pel their establishment in a separate bargaining unit Accordingly, as the Employer's repair and maintenance employees do not meet the Board's test for grouping as a separate craft, and as there is neither a history of bargaining in support of the requested unit, or an agree- ment between the Employer and the unions involved as to its appro- priateness, factors which we would consider as indicative of the prac- ticality and feasibility of such a unit and as warranting an exception to this general rule as to maintenance units in the hotel industry, we find that the unit requested by the Operating Engineers is inappropri- ate for purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act VNe shall, therefore, dismiss the petition in Case No 12-RC-461 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act All employees at the Employer's Miami Beach, Florida, hotel, in- cluding the housekeeping department , laundry, dining room, kitchen department, bar department (including food checkers and cashiers), telephone department, front service department, and repair and main- tenance department, but excluding all office and clerical employees, guards, and supervisors as defined in the Act [The Board dismissed the petition in Case No 12-RC-461 ] [Text of Direction of Election omitted from publication ] Fullerton Publishing Company d/b/a Daily News Tribune and Los Angeles Newspaper Guild, Local No. 69, American News- paper Guild, AFL-CIO. Case No 21-CA.-3296 November 23, 1959 DECISION AND ORDER On June 9, 1959, Trial Examiner Martin S Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the 125 NLRB No 30 DAILY NEWS TRIBUNE 261 Respondent had engaged in certain unfair labor practices alleged in the complaint to be in violation of Section 8 (a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and find's that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations 1 of the Trial Examiner. Like the Trial Examiner, we find that Fuller's discharge was discriminatorily motivated. On October 20, 1958, Fuller attended a union meeting and signed a union card. On October 27, 1958, Man- aging Editor Johnson of the Respondent, having heard a rumor of union activity among the employees, questioned Fuller concerning the union activities of himself and of other employees. Fuller admitted he had joined the Union but refused to divulge the names and activities of other employees. On October 27 and 28, Johnson system- atically questioned other employees as to their -knowledge of union activities; lie questioned employee Hardy specifically about Fullers participation in such activities. Johnson learned from his investiga- tion that Fuller alone had signed a union card. On October 29, in the middle of a pay period, and just before the impending November 4 election which he was scheduled to cover, Fuller was summarily discharged. While the Respondent claims that the discharge was motivated by economic considerations and points to circulation, advertising lineage, and mechanical costs figures, the record shows that, at the time of Fuller's discharge, both circulation and advertising lineage were on the increase and mechanical costs were decreasing. Also, almost simultaneously with Fuller's discharge, a substantial number of the employees in Fuller's department were given wage increases. A secondary reason given by Respondent for Fuller's discharge was the quality of Fuller's work. Suffice it to note, however, that only 2 weeks before the discharge, Fuller was granted a $25 a month raise, to be effective November 1, 1958. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and other unfair labor practices may be anticipated. The remedy which we utilize in this case should be coextensive with the threat. It will there- fore be ordered that the Respondent cease and desist from infringing in any manner oR the rights guaranteed in Section 7 of the Act. 535828-60-Vol. 125-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, and upon the entire record, we find that Fuller was discharged because of his union activities and that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Fullerton Publishing Company d/b/a Daily News Tribune, Fullerton, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild. AFL-CIO, or in any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition thereof, except to the extent permitted under Section 8(a) (3) of the Act. (b) Asking employees to inform Respondent as to progress of union organization, or interrogating employees concerning their union activities and questioning employees as to the identity of union adherents, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Andrew Fuller immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts of back pay due under the terms of this Order. DAILY NEWS TRIBUNE 263 (c) Post at its plant at Fullerton, California, copies of the notice Copies of said notice, to be attached hereto marked "Appendix A." 2 furnished by the Regional Director for the Twenty-first Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-first Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in or activity on behalf of Los Angeles Newspaper Guild, Local No. 69, American News- paper Guild, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner in regard to hire or tenure of employment, except to the extent permitted under Sec- tion 8 (a) (3) of the Act. WE WILL offer Andrew Fuller immediate and full reinstate- md'nt to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges, and we -will make him whole for any loss of pay suffered as a result of our discrimination against him. WE WILL NOT ask employees to inform us as to the progress of union organization or interrogate employees concerning their union activities and question employees as to the identity of union adherents in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form, join, or assist Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild, AFL-CIO, to bargain, collectively through representatives of their own choosing, to en- gage in concerted activities for the purpose of collective bargain- 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become or remain, or refrain from be- coming or remaining, members of the above-named or any other labor organization, except as provided under Section 8(a) (3) of the Act. FULLERTON PUBLISHING COMPANY d/b/a DAILY NEWS TRIBUNE, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof,. and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard at Los Angeles, California,. on March 23, 24, and 25, 1959, pursuant to a complaint of the General Counsel and an answer by Respondent, Fullerton Publishing Company d/b/a Daily News- Tribune. The issues litigated were whether Respondent engaged in certain conduct violative of Section 8(a)(1) and (3) of the Act. The parties waived oral argument. and have duly submitted briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Fullerton Publishing Company d/b/a Daily News Tribune is a California corpora- tion with its principal office at Fullerton, California, where it is engaged in the publishing of a daily newspaper. During the year 1958, Respondent's gross volume of business was in excess of $200,000, and I find that its operations affect commerce. Belleville Employing Printers, 122 NLRB 350. H. THE LABOR ORGANIZATION INVOLVED Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild, AFL- CIO, is a labor organization admitting to membership the employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The issues; interference, restraint, and coercion In October 1958 the Guild commenced organizational activities among the previ- ously unorganized employees of Respondent's news department. This department is headed by Managing Editor Leif Johnson, who then had 12 employees under his general supervision; not directly involved herein were the other departments of' the newspaper such as the composing room, pressroom, business office, and circula- tion and advertising departments. These other departments are headed by super- visory officials substantially on a par with Johnson. The 12 employees on Johnson's staff included two general assignment reporters, a telegraph or wire editor, a feature writer, a sports editor, a reporter assigned to the sports editor, and two women's department editors. Also included was complainant Andrew Fuller, the county editor, and two reporters attached to him. An issue herein is whether Fuller was a supervisory employee under the Act, specifically in, his relationship with the two county reporters. DAILY NEWS TRIBUNE 265 A primary issue is the discharge of Fuller by Respondent on October 29, 1958. The General Counsel contends that the discharge resulted from his union activities, whereas Respondent alleges that Fuller was released primarily for economic consid- erations and secondarily for work which in part was unsatisfactory. The complaint further alleges that Johnson engaged in unlawful interrogation of employees and solicited information on union activities during the period from October 27 through 30, 1958. During October, Fuller was approached by one of his coworkers, Margaret Burrell, and was informed that the Union was interested in organizing the employees of Respondent. He attended several meetings including one on October 20. This last meeting was also attended by Burrell, by another employee, Sports Editor Stan Jones, and by Sidney Meenes, an organizer for the Guild. Fuller signed a card and paid his initiation fee on this occasion and those employees present agreed to consider the organization of a unit at Respondent. Managing Editor Johnson testified that in the latter part of October, Business Manager Long mentioned that he had heard a rumor to the effect that there was discussion of the Union among the employees. In an attempt to verify the rumor, Johnson proceeded to interrogate a number of the male employees of his depart- ment during the next few days. He admittedly continued from one to the next in this manner because, as he put it, some had heard of the Union and some had not. Johnson testified that Fuller was the only one in the office at the time Long passed on this information to him and as a result he spoke initially with Fuller. As this talk with Fuller took place during the afternoon of October 27, 3 find that Johnson learned of the union activity at that time. Johnson summoned Fuller to an area where it was feasible to hold an undisturbed conversation. He then stated, according to Fuller, and I find, "Andy, I want an honest answer from you. We have heard some reports about the Guild being after you." Fuller admitted that he was a mem- ber of the Guild. Johnson asked when this had come about and Fuller replied, "Just recently." Johnson asked why he had joined and Fuller stated that he ad- mired what the Guild "stands for and think it is a good thing." Johnson asked whether someone on the staff of Respondent or an outsider was trying to organize the staff. He also asked when Fuller had joined and who else on the staff was involved. Fuller uniformly replied that he ought not to discuss this matter with Johnson. Johnson then suggested that in loyalty to Respondent Fuller should supply this information instead of displaying loyalty to the Guild. Fuller responded that he was not disloyal to the paper but that he did not feel free to divulge this information to Respondent. Johnson then stated that Respondent did not "like the idea of the Guild being there" because it created dissension between Respondent and its employees, particularly so at a time when Respondent was planning construction of a new plant as well as the giving of pay raises to the staff. He expressed regret that Fuller could not give him more information and thanked him for that which he had furnished.' Sports Editor Stan Jones then entered the office and Johnson spoke with him ,directly after his talk with Fuller. He testified that he told Jones there had been talk about the Guild and asked if he had heard any discussion on the topic. Jones admitted that he had heard some of the employees discussing the Guild. Johnson originally testified that he did not ask Jones to name those who were discussing the Guild although he did admit that several names were mentioned. He later testified that he "may have" asked Jones who had been discussing the Union but believed that Jones had volunteered the names. Still later, Johnson admitted that "I asked him who had been talking of the Guild," and that Jones then submitted four 1 Johnson's briefer version of the talk was not in substantial conflict with that of Fuller. He admitted asking Fuller if he had heard any discussion of the Guild. Fuller allegedly admitted having a card but stated that he knew of no organizational activity and that he had nothing against the paper. Johnson asked how he happened to join the Guild and what was wrong. Fuller replied that lie was sympathetic to labor unions. Some discussion followed which Johnson did not specifically recall except that he In- quired whether Fuller was displeased with office facilities or with a pay raise he had been promised on or about October 17, effective November 1. The conversation ended with Johnson telling Fuller that union membership was an individual's prerogative. Significant here, as in the other talks described below, is the fact that Johnson admittedly was somewhat uncertain as to precisely what he said to each employee. Furthermore, his testimony, particularly when testifying initially for the General Counsel, was marked by vagueness and a poor recollection. He frequently prefaced his remarks by a statement that he might have made a particular statement. Accordingly, Fuller's testimony has been credited herein as a more reliable reflection of what was actually said. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD names, namely Fuller and three others, Keller, Portley, and Burrell. I find that Johnson did ask Jones for the names on this occasion. Jones also told Johnson that a representative of the Guild had spoken with him. Johnson asked Jones what the difficulty was and Jones replied that it would be pleasant to receive "$122 a week." This was manifestly -a reference to the Guild scale and Johnson so construed it. Jones also referred to inadequate facilities in the office and Johnson replied that Respondent had plans for a new building. The meeting ended and, according to Johnson, "I may have mentioned to Stan [Jones] if the heard anything, to let me know.. .. " On the evening of the same day, Johnson telephoned Reporter Donald Keller at his home. He admittedly asked if Keller had heard of any Guild activities at the office and Keller replied that he had not. Keller testified, and I find, that at the end of the conversation Johnson asked him to advise him of any developments in this area and that he, Keller, agreed to do so. As will appear, Keller did precisely that several days later. On the following day, October 28, Johnson engaged Reporter Dave Roque in a conversation. He told Roque that a rumor was prevalent of union discussions in the shop and asked if Roque had heard anything about them. Roque replied in the negative. Johnson spoke in identical fashion that day with John Mihalaros, a reporter in the newsroom. In response to Johnson's query, Mihalaros stated that he had heard about the union activities and that there was some Guild talk. According to Johnson, Mihalaros might have stated that he, Mihalaros, had been approached about the Guild. On October 27 or 28, Johnson had a conversation with Donald Hardy, wire editor in the newsroom. According to Hardy, and I so find, Johnson stopped him in the shop and asked him if he "had heard anything about Andy [Fuller] and the Guild." Hardy replied that Fuller had told him he had joined the Guild and that this was the extent of his, Hardy's, knowledge.2 On October 28, Union Organizer Meenes and Stanley Jones, the sports editor, came to the home of Keller. Meenes explained the benefits of union organization and Keller agreed to consider the matter. On October 30, Keller, as he testified, and proceeding in accordance with Johnson's request of October 27 that he keep him posted, informed Johnson of the visit by the Guild representative and said that literature had been left at his home. Johnson made no reply on this occasion. Jones, according to Johnson. telephoned within ia couple of days after October 29, referred to a union meeting scheduled for that evening, and asked whether he should attend. Johnson told him to use his own judgment. As noted, Johnson admitted that he might have previously told Jones to let him know if he heard anything further. Mihalaros also reported to Johnson at about this time that he had attended a meet- ing with union representatives but further that he was not interested in joining. B. The discharge of Andrew Fuller 1. The facts Andrew Fuller entered the employ of Respondent in October 1957 as county editor, a position he held until his discharge on October 29, 1958. About 2 weeks before his discharge he requested a pay raise from Managing Editor Johnson. The latter replied that he would think it over and 2 or 3 days later informed Fuller that he was granted a $25 a month raise effective on November 1, 1958. As set forth, Fuller signed a union card and paid an initiation fee on or about October 20. He, as well as other employees, was questioned by Johnson concerning this topic, as detailed above. Respondent normally holds a staff meeting of department heads on Friday morn- ings. The meeting during the week commencing Monday, October 27, was held on Wednesday morning, October 29, 1958, because, according to Johnson, Editor and Publisher Edgar Elfstrom was scheduled to be out of town on that Friday. At this 2 Johnson claimed that this was a telephone conversation , that he asked Hardy if he had heard anything of union activities in the plant , and that Hardy volunteered that Fuller had told him several weeks earlier he had a card . This being after his talk with Fuller, Johnson conceded that he might have mentioned to Hardy that Fuller had previ- ously told him, Johnson , that he had a card and that he might have had other talks with Hardy. The testimony of Hardy, who is still in Respondent's employ , impresses me as the more reliable , in view of considerations previously expressed herein , and has therefore been credited. DAILY NEWS TRIBUNE 267 meeting, inter alia, Elfstrom allegedly instructed Johnson to reduce the staff of the news department by two persons because the news department payroll was too high. No names were used and it does not appear that Johnson was instructed to reduce the payroll by any specific figure in terms of dollars. Elfstrom left the choice of the two employees to Johnson who decided shortly after the meeting that Fuller and Margaret Burrell, a feature writer who originally introduced Fuller to the Union, could best be spared. Johnson then conveyed his decision to Fuller and Burrell separately. According to Johnson, the two employees knew of their selection for discharge before Elfstrom did. Fuller and Johnson are in substantial agreement that Johnson told Fuller that the paper's economic position was bad because of a drop in advertising revenue and that the payrolls were higher than ever. This was set forth as the primary reason for the reduction in force. He also told Fuller that although his performance was good in most respects, it had not been up to par in some. However he stressed the fact then, as does Respondent herein, that this was not the primary reason for the termination of Fuller. It is clear and I find, that according to Respondent, Fuller was terminated primarily for economic reasons. Hence it becomes unnecessary to consider in detail the purported secondary reason for his termination because it is clear, on Respon- dent's theory of the case, that but for the economic crisis Fuller would not have been terminated. 2. Alleged supervisory status Respondent has contended that Fuller was a supervisor and therefore not pro- tected under Section 8(a) (3) of the Act. A preponderance of the evidence discloses that Fuller did not possess the attributes of a supervisor within the meaning of Sec- tion 2 (11) of the Act. Respondent's news department headed by Johnson consisted of 12 persons. Those designated as editors included a wire or telegraph editor, a sports editor, two women's editors, one of whom was also known as the club editor, and the county editor, Fuller. With the exception of the women's editors, all members of the news de- partment operated from desks located within a few feet of each other and of Johnson. As county editor, Fuller's duties included the reporting of news, in the same man- ner as the other reporters; the writing of a column; preparation of a women's feature; editing; and processing the news copy of two suburban reporters in the department. He also coordinated coverage by these two reporters and himself of local news in surrounding towns. His responsibility as county editor was primarily to prepare news stories for use on the county page, an interior page devoted to local rather than State, National, or World news. Almost all of these stories were considered routine by Respondent. When a local story appeared to be of particular interest, Fuller would notify Johnson and the latter would then decide whether it merited treatment on the front page. If he so decided, Johnson proceeded to edit the story and would then submit it to the wire editor who handled the front page for headline writing and for position on the page. At the time material herein, two suburban reporters were assigned to Fuller. They had certain routine beats to cover, such as police records and city council meetings. When special events or activities came up in their geographic territory, Fuller was responsible for insuring that a reporter covered the event. Fuller ad- mitted herein .that if one of the two reporters fell down on an assignment he, Fuller, would point out the error of his ways to the offender; on occasions Johnson would also instruct Fuller to do so. It is uncontroverted that Fuller never hired, laid off, discharged, or disciplined any employees, nor did he recommend such action. In fact, during Fuller's tenure on the paper Respondent on three occasions hired suburban reporters to work with Fuller. These employees were interviewed and hired by Johnson and in no case was Fuller even consulted. His first knowledge of the hiring came when Johnson introduced him to the newly hired employee. A similar pattern was followed when Respondent terminated a suburban reporter who worked with Fuller. Fuller was not consulted prior to the termination and he learned of the fact from the reporter as well as from Johnson at about the time that the reporter was leaving. While there is evidence that on one occasion Fuller gave an employee some time off, the facts are that a suburban reporter informed Fuller one afternoon that he was ill; that Johnson was not in the office at the time; and that Fuller told him he might as well go home. This involved approximately I hour's absence. Fuller uncontrovertedly testified that had Johnson been present he, Fuller, would have referred the employee to Johnson. As is apparent, this is at best an isolated and minor incident. See The Daily Review, Inc., 111 NLRB 763. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, slightly over one-half of Fuller's duties or time involved the gathering of news just like any other reporter. The remainder of the time was spent at his desk reading copy and rewriting it. His duties as county editor involved the handling of routine country news and anything potentially other than routine was referred to Johnson who decided whether it was routine or not and then handled it personally if he decided the story so warranted.3 Fuller's alleged direction of the two suburban reporters involved responsibility for seeing that stories were covered and at the most may be likened to the duties of a leadman. See The Peoria Journal Star, Inc., 117 NLRB 708, 709-712, and Greens- boro News Company, Inc., 85 NLRB 54, 55. This department of 12 was divided between 6 who had the title of editor and 6 who did not. While the respective editors were not all paid in the same manner , there is evidence that the sports editor, Jones, received more money than Fuller and that a reporter , included among the 12, was assigned to Jones. The wire editor, Hardy, received more than Fuller did and the feature writer, Burrell, received the same pay as Fuller. Respondent makes no contention as to the supervisory status of these other editors, but if Fuller was a supervisor it would logically follow that the other editors also were , in view of the pay scales . This would leave the department with two groups of employees, six supervisors and six rank-and-file employees, hardly a ten- able result with one supervisor for every rank-and-file employee, and a departure from the customary supervisor-employee numerical ratio. See Westinghouse Air Brake Company, Union Switch & Signal Division (Supplemental Decision), 123 NLRB 859; Pennsylvania Power & Light Company, 122 NLRB 293; American Radiator & Standard Sanitary Corporation, 119 NLRB 1715, 1718; Saginaw Furniture Shops, Inc., 118 NLRB 421; United States Gypsum Company, 116 NLRB 1140, 1144; and Girdler Co., et al., 115 NLRB 726, 729. I find in view of all the fore- going considerations that Andrew Fuller was an employee and not a supervisor within the meaning of the Act . N.L.R.B. v. Swift & Company, 240 F. 2d 65 (C.A. 9); and Precision Fabricators v. N.L.R.B., 204 F. 2d 567 (C.A. 2). C. Analysis and conclusions As set forth, Fuller signed a union card and attended a meeting of union sympa- thizers on or about October 20, 1958. On October 27, Managing Editor Johnson asked Fuller if reports that he was involved with the Guild were true, and Fuller ad- mitted that he had recently joined. Fuller then refused to comply with Johnson's request that he advise him who on the staff of the paper was involved. Johnson immediately thereafter queried Sports Editor Jones as to who on the paper was interested in the Guild. Jones furnished him with four names, including that of Fuller. Johnson also proceeded on October 27 and 28 to question employees Keller, Roque, and Mihalaros of the news department concerning Guild discussions among employees of the paper. Finally Johnson specifically asked Wire Editor Donald Hardy if he had heard anything about Fuller and the Guild, and Hardy replied that he had heard Fuller had joined. All of these discussions took place on October 27 and 28, and on the following day, October 29, Fuller was discharged. Respondent has introduced considerable evidence in support of its claim that Fuller was discharged on October 29 as the result of a decision to reduce salary costs in the news department. This testimony may be summarized as follows. According to Publisher Edgar Elfstrom, the rate of growth of Respondent's circulation had slowed down considerably in 1958. The record supports this claim as well as the claim that circulation had slumped during the summer months as it customarily did. It is to be noted, however, that the September 1958 circulation increased slightly over that of the previous month and that the October 1958 circulation increased, in turn, over that of September. It is further to be noted that September and October 1958 circulation figures were substantially in excess of the figures for the corresponding months of the previous year. Elfstrom also testified that advertising lineage in 1958 was decreasing. He claimed that the figures for the first 9 months in 1958 were less than the figures for the corre- sponding period in 1957, and that this indicated the need for action on his part to either increase lineage or reduce costs. This resulted from a drop in advertising starting approximately in February 1958 caused by several reasons, including mergers of retail food stores, less advertising, and either the discontinuance or reduction of advertisements by accounts. While the figures introduced in evidence support 3In one statement given prior to the hearing Fuller stated that an employee was under his "supervision." Not only was this Fuller's conclusion, but the pertinent facts with respect thereto, as set forth herein, are consistent with the conclusions reached below. DAILY NEWS TRIBUNE 269 this claim by Elfstrom, it is to be noted that the figures on advertising lineage are available to Respondent at the end of each month and that the September 1958 line- age increased over the August figures in contrast to those months in 1957. In June and July 1958 Respondent took steps to reduce its mechanical costs. This economy was accomplished by reducing the hours worked by part-time employ- ees in the mechanical department; no full-time employees were eliminated, however. Paradoxically, as will appear below, it was during this same summer period that Elfstrom discussed with Johnson and approved a plan to give wage increases to the news department employees later that year. The record discloses that all policy decisions are made by Elfstrom who testified that the matter concerning economy in the news department came to a head on Wednesday, October 29. Normally staff meetings of department heads are held by Elfstrom on Fridays. Because he was scheduled to be absent on Friday, October 31, and, after considering the matter over the previous weekend, Elfstrom decided to set up the next meeting for Wednesday, October 29. He referred to the rising cost situation and directed Managing Editor Johnson to eliminate two employees from his department. Elfstrom did not specify anyone by name; nor did he make reference to any salary figure that was to be saved. He merely referred to two jobs and left the selection of personnel to Johnson. He also directed that the advertising depart- ment be reduced by two employees; here as well he did not name anyone. Elfstrom conceded that during previous months he and Johnson had regularly discussed personnel by name,and the record warrants an inference that he was substantially familiar with the personnel of this small newspaper. After the conclusion of this meeting, Johnson promptly spoke separately with Fuller and feature writer, Margaret Burrell. He testified that he told Fuller certain economies were necessary and the news staff was to be reduced by two people. Because Johnson had handled the county editor's job in the past, he, Johnson, felt that this post could be eliminated without any great impact on the paper. While referring to certain deficiencies in Fuller's work, he stressed that the principal reason was the economy move and offered to help Fuller relocate with another paper. Burrell was discharged for substantially the same reasons relating to economy. Johnson testified that the Fuller position had not been filled, that the vacancy still exists, and that he still fills the job. There are a number of factors which support the position of the General Counsel herein, that this discharge of Fuller was discriminatorily motivated: (1) Despite the alleged economy drive Elfstrom and Johnson made plans during: the summer to grant wage increases to a substantial number of news department employees. (2) Fuller had requested a wage increase about 2 weeks before his discharge and was told several days later, on or about October 17, that he would be given a wage increase on November 1. Johnson, at the time of the request, had told Fuller he wanted several days to think it over and then after this interval announced the favorable result to Fuller. Presumably this was given due consideration by Johnson if not by Elfstrom, and further, this was hardly a move consistent with an economy drive. (3) Even more significant is the fact that Respondent proceeded almost simul- taneously with the discharge of Fuller and the others, to grant wage increases to 7 of the 12 members of the news department. Fuller and one other employee were promised raises about 2 weeks prior to the Fuller discharge, and five others were given raises at the time of Fuller's discharge or within several days thereafter. Obvi- ously this is a rather large percentage for a department of 12 which had been designated for some months for a reduction in payroll costs. This is highlighted by the fact that there is no evidence that the five recipients requested these raises. (4) Discharged along with Fuller was feature writer Burrell who received ap- proximately $400 monthly. A portion of her duties included the writing of an advice column. Johnson proceeded to handle the column for 2 or 3 weeks and then hired a former employee who had previously handled this column to handle it at $100 a month, apparently on a part-time basis. Again, this is hardly consistent with an economy drive, and more particularly there is no evidence that the part-time work was offered to Burrell. (5) Respondent conceded that Fuller was an excellent reporter but claimed that it did not offer him work as a reporter because this would involve an appreciable reduction in pay and would have created a morale problem for him and possibly for other staff members. I fail to see the possible morale problem for other staff members, but the fact is that Fuller was not given the opportunity to accept or reject the other work. Moreover one of the suburban reporters junior to Fuller received $375 a month just $25 less than Fuller's salary, hardly an appreciable differ- 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence. And there is no evidence that Respondent hesitated because of morale con- sideration to reduce the hours and pay of several mechanical department employees in the summer of 1958 when its economy drive allegedly started. (6) It is deemed unnecessary to dwell on the second reason for Fuller's selection, his alleged inefficiency in certain respects, because the fact is that he was promised a raise effective November 1. More significantly, on the very day before the discharge, Johnson held a meeting of the news department staff and discussed coverage of the impending November 4 election. This election, as Johnson conceded, required use of the entire male news staff, and they discussed the work to be performed by Fuller and the others. Again, this is hardly an indication that Fuller's discharge was under consideration for unsatisfactory performance. (7) The impending election and the heavy burden imposed upon the staff thereby, presumably with the knowledge of the editor and publisher, only serves to highlight the haste with which the discharge was undertaken. Economy moves had allegedly been underway and partly carried out for many months. Yet at this critical time a key employee, in fact one claimed by Respondent to have held a key supervisorial post, was terminated without notice, although he was given 2 weeks' vacation pay. This also is marked by the curious fact that, according to Johnson, two employees of the news department were discharged and were notified thereof by Johnson before Elfstrom even knew their identities. And although Elfstrom never rejected Johnson's personnel recommendations, according to Johnson, the record is silent as to John- son's taking up with Elfstrom the problem that Fuller's termination posed with re- spect to the imminent election. (8) As for the two employees allegedly eliminated from the advertising depart- ment, one of the two, Hood, was discharged for cause earlier on the morning of October 29, specifically for reporting to work late on the previous day. According to Elfstrom, he did not know this on October 29 when he announced his decision to his staff of supervisors. The other, a Mrs. Coombs, was kept for several days to wind up some work and then released. No claim is made that Coombs' work was of a more serious nature than the contemplated election coverage on November 4 by Fuller. Moreover, Coombs was later rehired in another post to replace an employee who had resigned. There is no evidence that this created any morale considerations as that envisaged had Fuller been transferred to the post of reporter. (9) One notes the haste with which Fuller was terminated in midweek and paid off the same day. Payday was customarily every other Friday for the pay period ending the previous Wednesday. The only nondiscriminatory reason readily apparent for such haste would appear to be an economic one and this is belied by the many contemporaneous raises as well as the fact that Coombs was kept on for several days to finish some work, not claimed to be more vital than coverage of the election. Also noted is the fact that page costs, a factor relied upon by Respondent, dropped sub- stantially in October from September and September costs were lower than those of the previous month. In view of all the foregoing considerations and the lack of substance to Respondent's reasons for the discharge, I am persuaded that a preponderance of the evidence supports the position of General Counsel herein, that the alleged economy motive for the discharge of Fuller was a pretext and was not the true reason for his discharge. As for the true motive, one is immediately struck by the fact that Fuller's discharge occurred but 2 days after Respondent's managing editor had systematically interro- gated most of the employees of his department to ascertain the extent of Guild organization and the names of those discussing the Guild and had heard that Fuller alone had signed a card, although the names of several were given as interested in union organization. Indeed Johnson singled out Fuller for special attention by asking him about his Guild activities and by questioning Hardy as to whether he had heard anything about Fuller and the Guild. This is not to say that it was not Respondent's prerogative to eliminate the position of county editor for nondiscriminatory reasons. It is to say that on this record the evidence preponderates that Fuller was discharged as county editor because of his union activities. I find that by discharging Andrew Fuller on October 29, 1958, Respondent has discriminated with respect to the hire and tenure of employees within the meaning of Section 8(a)(3) of the Act and that by such conduct Respondent has interfered with, restrained, and coerced its employees within the meaning of Section 8 (a) (1) of the Act. I further find that in the context of this case Johnson's statements to his employees would logically tend to coerce them in their union activities, particularly where they were promptly followed by the discharge of an employee whose name was divulged in these incidents. I find that by questioning employees as to whether they were F. C. HUYCK & SONS 271 interested in the Guild, asking employees who was interested in or discussing the Guild, asking employees if they had joined the Guild and by asking employees to keep Respondent posted on the progress of union organization, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act within the meaning of Section 8(a) (1) thereof. N.L.R.B. v. Midwestern Instruments, Inc., 264 F. 2d 829 (C.A. 10), decided March 6, 1959; N.L.R.B. v. Syracuse Color Press, Inc., 209 F. 2d 596 (C.A. 2), cert. -denied 347 U.S. 966; Edmont Manufacturing Company, 120 NLRB 525; California Textile Mills, 120 NLRB 1245; and Emma Gilbert, et al., d/b/a A. L. Gilbert Company, 110 NLRB 2067, 2071. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its operations set forth in section 1, 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 thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has discriminated with respect to the hire and tenure of employment of Andrew Fuller. I shall , therefore , recommend that Respondent offer Fuller immediate and full reinstatement to his former position without prejudice to seniority or other rights and privileges. See The Chase Na- tional Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827.4 I shall further recommend that Respondent make him whole for any loss of pay suffered by reason of the discrimination against him. Said loss of pay, based upon earnings which he normally would have earned from the date of the discrimina- tion to the date of the offer of reinstatement, less net earnings, shall be computed in the manner established by the Board in F. W. Woolworth Company , 90 NLRB 289. See N.L.R.B. v. Seven -Up Bottling Company of Miami, Inc., 344 U.S. 344. On the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild, AFL-CIO, is a labor organization within the meaning of Section 2 ( 5) of the Act. 2. Fullerton Publishing Company d/b/a Daily News Tribune, is an employer within the meaning of Section 2(2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Andrew Fuller, thereby discouraging membership in a labor organization , Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By interfering with , restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act , Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] I The sense of this order is that Fuller be offered his job as county editor , if it still exists, and, if not , a substantially equivalent position. F. C. Huyck & Sons and United Textile `Yorkers of America, AFL-CIO. Case No. 10-CA-3746. November 23, 1959 DECISION AND ORDER On June 25,1959, Trial Examiner W. Gerard Ryan issued his Inter- mediate Report in the above-entitled proceeding, finding that F. C. Huyck & Sons, herein referred to as Respondent, had engaged in and 125 NLRB No. 34.