Wichita Eagle & Beacon Publishing Co., Inc.

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- ishesfurther 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.