The Brunswick News Publishing Co.

THE BRUNSWICK NEWS PUBLISHING CO. 943 The Brunswick News Publishing Co. and Thomas J. Barbarie The Brunswick News Publishing Co. and Dona W. Barbarie. Cases 10-CA-9157-1 and 10-CA-9157-2 August 16, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of hearing, timely briefs were filed by counsel for the General Counsel and the Respondent. Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B. 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT On April 14, 1972, Trial Examiner Wellington A. Gillis issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 briefs 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 Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that The Brunswick News Publishing Co., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: This case was tried before me on November 18 and 19, 1971, at Brunswick, Georgia, and is based upon separate charges filed by Thomas J Barbane and Dona W. Barbarie on August 20, 1971; upon the complaint, issued on September 30, 1971, by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against the Brunswick News Publishing Co., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(l) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practice. At the hearing, the Charging Parties and the Respondent were represented by counsel, and were afforded full opportunity to examine and cross-examine witnesses, to The Brunswick News Publishing Co. is a Georgia corporation with its office and place of business located at Brunswick, Georgia, where it is engaged in the publication and sale of a newspaper. During the calendar year 1970, the Respondent held a membership in, or subscribed to, interstate news services, advertised nationally sold prod- ucts, and realized an annual gross volume of business in excess of $200,000. The parties admit, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, and I find, that the American Newspaper Guild is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues 1. Whether, on or about June 30, 1971, managing editor Ben Payne interrogated its employees concerning their union membership and activities in violation of Section 8(a)(1) of the Act. 2. Whether, on July 30, 1971, in discharging Dona W. Barbarie the Respondent did so for reasons relating to union activities in violation of Section 8(a)(3) of the Act. 3. Whether, on or about August 13, 1971, in discharg- ing Thomas J. Barbarie, the Respondent did so for reasons relating to his union activities in violation of Section 8(a)(3) of the Act. B. Facts Thomas Barbarie first went to work for the Respondent on October 10, 1970, as a general assignment reporter, which includes any and all news in the Brunswick, Glynn County Costal Area. During his ensuing employment as such, like other reporters, from time to time he was assigned in addition various "beats," areas of responsibility for making specific checks, including the police beat, the city hall beat, the county courthouse, and the county commission. Within a few weeks after commencing his employment, during a conversation with Benjamin Payne, managing editor, who had hired him, Barbarie mentioned the fact that earlier with another newspaper he had been a member 198 NLRB No. 142 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the American Newspaper Guild. Payne, according to Barbarie, made the retort that, "well, thank goodness we don't have that here." 1 Barbarie first took an overt step looking into the possibility of unionizing the Respondent's editorial depart- ment employees,2 when, on or about March 20, 1971,3 he wrote a letter to the American Newspaper Guild. After an exchange of correspondence, Barbarie was notified on May 28, that, because of the small size of the Brunswick News, the Guild was not in a position to assist in organizing the staff of the News. Barbarie subsequently contacted Owens Amos locally, who was associated with the Chemical Workers Union, and who suggested that he talk with a Brunswick lawyer. This Barbarie did, and was counseled against forming an independent union, as it would have been too weak. In June, Barbarie got in touch with Robert Owens, former president of the Communication Workers of America local and a county commissioner in Brunswick. Owens, whom Barbarie saw quite regularly at the court- house, advised Barbarie to speak with Charles Leath, current president of the Communications Workers, which he did telephonically around the middle of June. Barbarie first met Leath in person, however, in July. Around the last week in July, early one morning before working hours, Leath gave Barbarie a supply of showing of interest cards for those employees interested in joining the Union. Barbarie commenced soliciting employee signatures by making telephone calls at night, and passing out cards away from the plant after working hours. Barbane was successful in getting "several" of the cards signed. While none of this activity occurred on the Respondent's premises and although Barbarie "was quite careful not to initiate discussion," he did discuss the Union with employees on occasion while at the plant. 1. Discharge of Dona Barbarie Some time in January, when employee Ralph Heath left the Respondent's employ, the position of Wire Editor became open, and remained open until the following May, with the functions of the wire editor rotating from day to day among the staff in the newsroom. The primary function of a wire editor is to take the news off the AP wire as it comes in, decide which should be used, collating it with the tapes used with the linotype machines, to waste headlines for the stories, and to lay out pages for the composing room to follow, referred to in the trade as "dummying up the page." Along about the first part of May, Tom Barbarie approached Howard Leavy, III, the associate editor, about giving his wife, Dona, a try at the job. Leavy suggested to Barbarie that she come in for a day and see what the job involved, and that if she were willing to give it a try it would be all right with him. On Friday, May 7, Dona Barbarie came in, observed the operation, and decided to try it. The following Monday, May 10, she was hired by Leavy and commenced her duties as wire editor. That afternoon, Ben Payne, who had not known of the hiring of Dona Barbarie, and, upon learning of it, had registered certain objections with Leavy, discussed the matter with Tom Barbane and Leavy in the latter's office. Despite Payne's objections to husband and wife working together in the same office, because the commitment had been made it was agreed that Dona would be tried as wire editor on a trial basis to see if she could do the job. When Tom Barbarie raised the problem of Dona's not having a driver's license4 and the fact that her workday would be 7 a.m. to 3:30 p.m., and his, at the regular 8:30 to 5 p.m. hours, it was agreed, at Barbarie's suggestion, that he would drive his wife to work mornings and start his day early, writing the news he gather the day before. At the close of the day, he would drive her home and return to the office. As can be seen, Tom Barbarie was the spokesman for his wife on her employment, Dona not taking any part in the agreement. Dona Barbarie worked the wire editor's job until her July 30 termination. Admittedly, Dona, although a college graduate, had had no prior experience in this work, and it appears that she had difficulty performing the job. Thus, former linotype operator, Tom Watson, who at the time of the hearing had voluntarily quit his 8-year employ with the Respondent, testified that, in putting her work into type down in the composing room, he found errors, consisting of copy not matching tape, and vice versa, requiring correction, and that this occurred between 50 and 65 percent of the time, with no noticeable improvement during her employment. Make-up man, 10-year employee Luther Porter, whose responsibility consisted of putting the type in the pages, testified that, at the direction of Payne or Leavy, Dona's front page layout work had to be redone "most of the time." Robert Long, a Ludlow operator whose function it was to set headlines, testified that he could recall but I day during Dona's employment that he did not have to reset some of the work coming down from her. Quite often this was found to be necessary because the headline did not correspond with the story.5 During her trial period with the Company, Dona Barbarie received a lot of assistance from her husband who knew the job well, so much so that Barbane was admonished by Payne to not do her work for her. She also received considerable direction on the job by both Payne and Leavy. At least part of her trouble, the mechanical aspect of thejob, it would appear, may be attributed to her defective eyesight, which was caused by a hereditary disease not correctable by lenses. In a reading test from the witness stand it was obvious that Dona Barbarie had considerable trouble reading material only 9 or 10 inches away. Finally, on July 30, Payne talked with Dona Barbarie in the wire room, telling her that he was sorry but that they Although Payne did not recall having said this, "certainly not at the time of Mr. Barbane's employment," Payne was, at least, made aware of Barbane's former association with a union 2 Other departments are, and have been for some time, covered by union contracts with the International Typographical Union and the Printers and Pressmen's Union 3 Unless otherwise noted, all dates hereinafter set forth refer to the year 1971 + Dona Barbarie had extremely poor eyesight, a fact hereinafter discussed 5 Testimony elicited from James Rogers, a proofreader. placed on the witness stand by counsel for the Respondent, is totally discredited and, in no way, relied upon in this proceeding THE BRUNSWICK NEWS PUBLISHING CO. were going to have to let her go, citing as a reason the fact that she did not have a "news sense." Dona asked Payne if he thought that she could ever develop one, to which he replied in the affirmative but stating that it would take 5 or 6 years. In reply to her further question as to whether she had been doing the mechanical end of the job, according to Dona, Payne said that she had. Her termmnation slip stated that she was discharged for incompetence. Dona Barbaric has not since been replaced, with the Respondent appar- ently having gone back to the system of rotating among the newsroom staff the wire editor functions. Concerning the Respondent's decision to terminate Dona Barbaric, Payne testified that, in his judgment, she did not have a sense of news values, specifically a sense of the relative importance of various news items, particularly for use on the front page of a small town, Georgia, newspaper. Payne testified that, in addition, Dona had difficulty in writing a headline which would give the gist of the story, that would reflect exactly what was in the news item, and that, notwithstanding his efforts and those of Leavy's to train Dona as to what was wanted on the front page in the way of a large number of short stories each day, she would not send down to the composing room one- column headlines necessary for the short stones to complete the make-up. Because of this, Payne and Leavy repeatedly had to remake the page, rewriting headlines and occasionally actually changing the story sent down because it did not belong on the front page of the newspaper. While my appraisal of Dona Barbaric was that of a very fine person and an honest witness, the record reveals that she was employed on a trial basis and that after 12 weeks she just was not able to perform satisfactorily. Under the above circumstances, coupled with the fact that she engaged in no overt union activity at any time,6 I must find that the Counsel for the General Counsel has not carried his burden of proving by a preponderance of the credible evidence that Dona Barbane's discharge on July 30 was for discriminatory reasons. 2. Discharge of Thomas Barbaric Thomas Barbaric continued in the Respondent's employ until August 13, at which time he was told by Payne in Leavy's office with the latter present that the quantity of his work had been deteriorating, that he had not been producing enough, and that, although an unpleasant thing, the Company was going to have to let him go. Payne said that they would give him 2 weeks' severance pay. Barbaric, with little to say, left. The record discloses, and it is acknowledged by all, that at no time right up to his discharge did the Respondent have any quarrel with the quality of Barbarie's work. In fact, on at least two occasions, in January and April, he received praise from the Associate Editor Leavy for his editorial work on Senator Russell and Viet Nam, and, sometime in March, was told by Leavy that, in 30 years with the paper, he had never been as impressed with anybody as he had with Barbaric. It is also acknowledged by all that, at least until early 6 Dona Barbarie testified that she supported her husband's efforts to unionize the employees, which I take to mean that she sympathized with them, for she very frankly testified that she at no time initiated a union 945 May, the Respondent was completely satisfied also with the quantity of work put out by Barbaric. Thus, the Respondent's sole basis for terminating Barbaric is premised upon the assertion that, commencing around May 10, when his wife was hired, until his discharge on August 13, the quantity of his work fell way off, and that, in assisting Dona in the office when he should have been on assignment covering the town, in the words of Respondent's counsel, he "practically deserted his outside reporting and the number of stories fell off." There is no question but that Barbane spent time attempting to help his wife break into the wire editor's position, but whether during this period his work product fell way off is another matter. Payne testified that around this time, simultaneous with the closing of superior court, Barbaric "seemed to be slacking off" on the amount of material he had been producing, that on many occasions he got stories that Barbaric "possibly should have gotten," and that other reporters covered some of the things Barbaric "probably should have gotten." While Payne's testimony stands unrefuted that over a period of time on three specific instances Barbaric failed to get a story, the remainder of the evidence relating to Barbaric's asserted drop in production fails, I find, to sustain Respondent's position in this regard. Thus, during Barbaric's employment with the Company, on a daily average, he wrote one fairly good-sized article, and rewrote a couple of press releases or other smaller news items that did not require "leg work." This, according to Barbaric's unrefuted testimony, constituted his pro- duction norm from the time of his initial employment and is the only evidence of the quantity of Barbaric's work before early May. The Respondent, in an attempt to substantiate its position as to Barbaric's diminished production, compiled from its office files a chronological list based upon the recollection and knowledge of Payne, of all the stones that Barbaric had written during the period from May 6 to August 13, excluding small items that merely required editing and headings. When cross-examined with respect to this list, which made reference to 55 articles, Payne either admitted that Barbaric had written additional articles or would not deny that he could have written certain specific additional articles that were not included on this list. On rebuttal, Barbaric identified an additional 25 major articles which he testified he had written during this period. On surrebuttal, with time to check these over, Payne conceded that Barbaric had written at least four of them, and that he could not say who wrote the others, that Barbaric was one of three reporters who could have been the author. Accordingly, Barbaric's credited testimony as to the 25 stories stands unrefuted, the record evidence thus crediting him with some 80 major articles during this period, which, excluding Sundays, contained approximately 85 days. Apart from the adverse impact of the bare statistics on the Respondent's defense, the fact that at the hearing it became evident that Payne did not know for certain what Barbaric had written and what he had not written during conversation with anyone and only once, while riding home with another employee. Judy Gillis, did she ever try to convince another to favor the Union 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this period, and, accordingly, could not have been aware of it at the time that he made the determination to discharge, militates against a finding of cause . In addition to the fact that the Respondent's sole defense in this matter lacks substance, the record reveals that at no time pnor to the August 13 discharge did Barbarie receive any word critical of his production or indication that it was anything less than satisfactory. Contrary to the Respondent's position concerning the decision to terminate, these facts certainly do not support the assertion that, immediately prior to the discharge, Barbane had deserted his outside reporting. That the Respondent, and in particular, Ben Payne, had at some point in June and July become aware of the fact that Barbane had been overtly interested in bringing in a union is apparent. Thus, Donald Gottschalk, employed by the Glynn County Council in human relations, irritated by the News' attack on a Crispus project? on which he was working, called Ben Payne at his home on Saturday evening, June 19, to inquire into the matter. Gottschalk asked Payne who, on the paper, was responsible for the witchhunt that was going on. Payne told him that he had authorized the article and that Barbane was the reporter assigned to the matter. At this point, Gottschalk, who had been a good friend of Barbarie in the past, asked Payne to have it stopped, and then, because he "wanted to get back at Tom ..." volunteered the fact that Barbarie was attempting to unionize the Brunswick News. He added that Barbarie's wife and employee Judy Gillis were also involved.8 Payne suggested that Gottschalk come down to the office on Monday morning if he had anything further to say, with which suggestion Gottschalk did not conform. Payne also volunteered the fact that around July 16, he had a telephone call from a Reverend E. C. Tillman, human relations director for the Coastal Area Planning and Development Commission, concerning the Crispus project, during which, he, too, apprised Payne of Barbarie's attempt to unionize the Brunswick News. It would also appear that Payne was interested in the extent of union activity among his editorial employees, for, at some point around the end of June, according to William Poole, sports editor for the News, Payne asked him if anyone had approached him about joining the Guild. Poole, who, in fact, had been asked briefly by Barbarie a couple of weeks earlier if he had been interested in joining the Union, told Payne that no one had really sat down and talked to him at length about it. Payne, in leaving, said that that was all he wanted to know, that it was probably just a rumor. Payne's version of the incident varies slightly from that given by Poole, in that the question to Poole was whether he had heard anything of a union being organized in the editorial department, and Payne's answer, to the effect that he had heard nothing other than a few times when it was mentioned to him in the composing room by the printers who told him they should form a union upstairs. I find the former to have been the case and also find, under all the circumstances herein, that it constitutes unlawful interrogation, and, as such, restraint and coercion within the proscription of Section 8(a)(1) of the Act. On the record as a whole , I am of the opinion, and so find, that, in discharging Thomas Barbarie on August 13, 1971, the Respondent did so for discriminatory reasons in violation of Section 8(a)(3) of the Act. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Brunswick News Publishing Co., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Newspaper Guild is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Thomas J. Barbarie, thereby discouraging membership in and activity on behalf of a labor union, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in, and is engaging 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 within the meaning of Section 2(6) and (7) of the Act. 6. Other than as found, the Respondent has committed no violations of the Act. IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operation of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices , it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent discrinunato- nly discharged Thomas Barbarie on August 13, 1971, thereby violating Section 8(a)(1) and (3) of the Act, it is recommended that the Respondent offer the above-named individual immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to any rights and privileges to which he is entitled , and make him whole for any loss of pay he may have suffered by reason of the discrimination against him , by making payment to him of a sum of money equal to the amount he would have earned College Students' Community Program Gottschalk admitted that since then he and Barbarie had again become good friends THE BRUNSWICK NEWS PUBLISHING CO. from the earliest date of the discrimination to the date of the offer of reinstatement, less net earnings during said period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In this regard, it is further recommended that the Respondent preserve, and upon request, make available to the Board or its agents for examination and copying, all payroll records and reports, timecards, and all other records necessary to compute the amount of backpay. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:9 ORDER Respondent, The Brunswick News Publishing Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activity on behalf of the American Newspaper Guild, or any other labor organization, by discharging or refusing to reinstate any of its employees, or in any like manner discriminating in regard to the hire or tenure of employment, or any term or condition of employment, in violation of Section 8(a)(3) and (1) of the Act. (b) Interrogating its employees concerning union activity in the plant. (c) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the American Newspaper Guild, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Thomas J. Barbarie immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to any rights and privileges to which he is entitled, and make him whole in the manner in accordance with the method set forth in the section entitled "The Remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records and reports, timecards, and all other records necessary to compute the amount of backpay due under the terms of this recommended Order. (d) Post in conspicuous places at its Brunswick, Georgia, newspaper, including all places where notices to employees 947 are customarily posted, copies of the attached notice marked "Appendix." 10 Copies of the notice, on forms provided by the Regional Director for Region 10, shall, after being duly signed by the authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. i i IT is ALSO ORDERED that the complaint herein be dismissed insofar as it alleges that Dona Barbane was unlawfully discharged or that the Respondent committed any other violations of the Act not specifically found. 9 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 iO 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 Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " ii 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 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees concerning union activity in the plant. WE WILL NOT in any like manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL NOT discharge and refuse to reemploy, or otherwise discriminate against employees in order to discourage membership in or support of The American Newspaper Guild, or any other labor organization, or infringe in any like manner upon the rights guaranteed in Section 7 of the Act. WE WILL offer Thomas J. Barbarie immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to any rights and privileges to which he is entitled, and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining, members of The American Newspaper Guild, or any other labor organiza- tion. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE BRUNSWICK NEWS the Selective Service Act and the Universal Military PUBLISHING Co. Training and Service Act. (Employer) This is an official notice and must not be defaced by anyone. Dated By This notice must remain posted for 60 consecutive days (Representative) (Title) from the date of posting and must not be altered, defaced, or covered by any other material. WE WILL notify immediately the above-named individual, Any questions concerning this notice or compliance with if presently serving in the Armed Forces of the United its provisions may be directed to the Board's Office, States, of the right to full reinstatement, upon application Peachtree Building, Room 701 , 730 Peachtree Street, N.E., after discharge from the Armed Forces , in accordance with Atlanta, Georgia 30308, Telephone 404-526-5760.