Capital Times Co.

The Capital Times Company and Newspaper Guild of Madison, Local 64. Case 30-CA-3639 January 19, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On April 26, 1977, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and support- ing briefs.' Respondent filed cross-exceptions and an answering brief and a brief in support of its cross- 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 attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as modified herein, and to adopt his recommended Order. We agree with the Administrative Law Judge's Decision to dismiss the complaint herein. Contrary to the Administrative Law Judge, however, we find that employee David Wagner was not engaged in protected concerted activity when he refused to cross a picket line to perform an assignment. Accordingly, Respondent's imposition of discipline by suspending Wagner from work without pay did not violate the Act.2 The essential facts are not in dispute. Respondent, engaged in the newspaper business, employs David Wagner, a member of the Newspaper Guild of Madison, as an art reviewer and critic. In this capacity, Wagner attends various cultural events in the area and writes reviews thereof. In April 1976, 3 Wagner was assigned to cover and write a review of an opera to be performed at the University of Wisconsin Memorial Union on May 12, 14, and 15. A picket line had been established at the Memorial Union by the Memorial Union Labor Organization (MULO). MULO represents employees who are employed by the University and who work at the Memorial Union. The parties stipulated that the employees represented by MULO are not employees I After the issuance of the Administrative Law Judge's Decision, the Charging Party filed a motion to withdraw its charges. By telegraphic order dated June 7, 1977, the Charging Party was informed that the Board would not at that time rule on its motion. An extension of time was granted for the Charging Party to file exceptions and a supporting brief However, we find it 234 NLRB No. 62 THE CAPITAL TIMES COMPANY within the meaning of the Act as they are employed by a political subdivision of the State of Wisconsin. Wagner proceeded alone to the Memorial Union on May 12, but he did not cross the MULO picket line to cover the opera. In lieu of writing a review, he wrote an article dealing with the MULO strike. However, Respondent's editor did not publish this article, as he did not consider it to be a review of the opera. Wagner was subsequently suspended from work for 3 days without pay for not fulfilling his assignment. Respondent was charged with violating Section 8(a)(1) of the Act by suspending Wagner because of his refusal to cross the MULO picket line to complete his assignment. The Administrative Law Judge found that Wagner was engaged in activity protected by the Act when he honored the picket line, rejecting Respondent's contention that Wag- ner's conduct was unprotected inasmuch as he had engaged in activity with persons who are not employ- ees within the meaning of the Act. The Administra- tive Law Judge determined that "it is not material that his activities were in concert with employees of an employer outside the scope of the National Labor Relations Act." In its exceptions, Respondent argues that an employee comes under the protection of Section 7 of the Act only if that employee engages in activity with other employees as defined in the Act. Respondent asserts that an employee cannot engage in concerted activities within the meaning of Section 7 with nonemployees who themselves are not entitled to the protection of the Act. We find merit in Respondent's exceptions and find that the rationale of Ursula Cervantes, et al., d/b/a Panaderia Sucesion Alonso4 is controlling and dispos- itive of the issue herein. In that case, an employee intervened with his employer on behalf of an agricultural laborer also employed by the employer. The employee was subsequently discharged. The complaint issued by the General Counsel alleged that the discharge was the result of the employee's concerted activities. The Board initially noted that agricultural laborers are not employees as defined in Section 2(3) of the Act and therefore they are not entitled to the benefits and protections of Section 7. The Board then concluded that the activities engaged in by the employee and the agricultural laborer were not concerted, stating at pages 880-881: unnecessary to pass on the motion, as the Charging Party has indicated in its brief in support of its exceptions that it has withdrawn its motion. 2 The Administrative Law Judge found that the suspension was warrant- ed because of Wagner's failure to give timely notice to Respondent of his intention not to carry out his assignment. 3 All dates are in 1976 unless otherwise indicated. 4 87 NLRB 877 (1949). 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because Section 7 grants rights exclusively to "employees," any concerted activity must be that of more than one "employee" in order to obtain the protection of Section 7. We do not believe that one "employee" and nonemployees together may engage in protected concerted activities within the meaning of the Act. In this case, because all Gutierrez' [the employee] associates in his union activities were agricultural laborers and were not "employees," there was no concerted activity as envisaged by Section 7 of the Act. In the present case, Wagner's solo activities on behalf of nonemployees do not constitute concerted activities which are entitled to the protection of Section 7 of the Act. Therefore, his suspension by Respondent for engaging in such activities is not a violation of the Act. Accordingly, we agree with the Administrative Law Judge's dismissal of the com- plaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: This case came on to be heard before me at Madison, Wisconsin, on March 15, 1977, upon a complaint' issued by the General Counsel of the National Labor Relations Board and an answer filed by The Capital Times Compa- ny, hereinafter sometimes called the Respondent. The issues raised by the pleadings relate to whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by suspending David C. Wagner for 3 days because he refused, in the course of his employment, to cross a picket line of a labor organization other than that of which he is a member. Briefs have been received from the General Counsel, the Respondent and the Charging Union, and the briefs have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following: I The complaint in this proceeding was issued on December 17, 1976, upon a charge filed on May 20, 1976, and duly served on the Respondent. FINDINGS OF FACT I. PRELIMINARY MAT-ERS (COMMERCE, JURISDICTION, AND LABOR ORGANIZATION) The complaint alleges, the answer admits, and I find that (1) the Respondent is engaged at Madison, Wisconsin, in providing editorial services for Madison Newspapers, Inc.; (2) its annual gross revenues and purchases in interstate commerce are sufficient to satisfy the Board's standards for the assertion of jurisdiction; and (3) the Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the answer admits, and I find that Newspaper Guild of Madison, Local 64, hereinafter sometimes called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 1. THE UNFAIR LABOR PRACTICES ALLEGED The General Counsel alleges that the Respondent violat- ed Section 8(aX)(1) of the Act when it suspended employee David C. Wagner because he refused to cross a picket line maintained by the Memorial Union Labor Organization (MULO) at the University of Wisconsin Memorial Union. The record is clear that on May 13, 1976,2 the Respondent, through its Executive Editor Elliott Maraniss, suspended Wagner for 3 days because he failed to carry out an assignment to review an opera which was conducted at the Memorial Union on the evening of May 12. The Respon- dent defends the suspension on grounds that (1) Wagner's activity was not concerted because the MULO strikers are not employees within the meaning of the National Labor Relations Act; (2) that the MULO strike was illegal and Wagner's rights were no greater than those whose cause he joined; and (3) the protections of Section 7 do not extend to an employee who performs a unique service and cannot be replaced by a substitute. As further defenses the Respondent contends that Wagner's dominant motive in honoring the MULO picket line was fear, not common cause with the strikers; that Section 7 of the Act is unconstitutional if interpreted to prohibit a newspaper from disciplining an employee who exhibits bias in the performance of his newsgathering duties; and, finally, that Wagner was suspended for failure to give notice, and not by reason that he honored the MULO picket line. As a part of this record all parties entered into a written stipulation which reflects that the Memorial Union is a part of the University of Wisconsin system, governed by the board of regents, an agency of the State of Wisconsin. At times material to this case there were approximately 450 employees of the Memorial Union who performed food service and related functions, and some of whom, but not all, were students at the University. The parties have further stipulated that the employees of the Memorial Union, by reason that they are employed by a political subdivision of the State of Wisconsin, are not employees within the meaning of Section 2(3) of the Act, and have "limited term" appointments as defined in section 16.21 of the Wisconsin Statutes (1975). 2 All dates hereinafter are in 1976, unless specified to the contrary. 310 THE CAPITAL TIMES COMPANY With respect to the MULO strike, the record reveals that it began on or about April 30, was attended by picket lines at the Memorial Union, the strike ended on May 25, and on May 27 the board of regents and MULO entered into a collective-bargaining agreement. The record also reveals that no individual or agency of the State of Wisconsin instituted legal proceedings or sought to enjoin the MULO strike and/or the attendant picketing. At times material to this case David C. Wagner was employed by the Respondent as an art reviewer and critic, and was a member of the Newspaper Guild of Madison, Local 64. In accordance with established practice, Wagner met with Marie Pulvermacher, the subeditor of the Re- spondent's PM or feature section, in late April to determine a calendar of art and cultural events which would require coverage during the month of May. As a result, Wagner was selected to cover and review the Puccini opera "The Girl of the Golden West," which was scheduled at the Memorial Union on May 12, 14, and 15. At the time the schedule was arranged, both Wagner and Pulvermacher made note that there was a picket line at the Memorial Union because of a labor dispute which had not been resolved. Wagner testified that on May 7 he had a telephone conversation with Pulvermacher concerning the assign- ment calendar, and Wagner asked Pulvermacher to keep her ears open concerning management's attitude toward the picket line at the Memorial Union. Pulvermacher agreed that she would, but the record reveals no further discussion about the picket line, or Wagner's assignment until May 12. Early on the morning of May 12, Wagner received a call from Pulvermacher, who asked if she could quote Wagner to the effect that he did not want to cross the MULO picket line. Wagner replied in the affirmative, and Pulvermacher stated that she wanted to pass the informa- tion on directly to Editor Elliott Maraniss. About 6 o'clock of the same day Wagner received a second call from Pulvermacher who informed him that she had talked with Maraniss and told him she would not order Wagner to do what she would not do herself. Pulvermacher also told Wagner that Maraniss had ordered him to cover the opera, and suggested it would be wise for Wagner to get in touch with Maraniss. Wagner did not immediately call Maraniss, but visited the picket line at the Memorial Union to look over the situation. Wagner engaged in conversations with some of the pickets, received some of their pamphlets and con- versed with the director of the University Symphony. About 7:45 p.m. Wagner called Maraniss, reported that the picket line was still up, and stated that he did not want to cross the picket line. Maraniss urged him to perform his assignment, Wagner argued what he considered to be a related case in Canada, and Maraniss continued to urge him to continue his assignment. Wagner inquired what action would be taken against him if he refused to cross the picket line and Maraniss replied that he would be suspend- ed for at least 3 days, or maybe a week. Wagner asked if the discipline could be limited to a day's pay, Maraniss replied that this would not be possible and Wagner would be suspended for at least 3 days or longer. Wagner terminated the conversation and returned to the picket line. After his return to the picket line at the Memorial Union, Wagner had further conversations with the pickets and also talked to John Hunter, the Respondent's associate editor. In a give and take between the two employees, Wagner asked Hunter if the Respondent's publisher, McMillan, would take personel affront if Wagner refused to cross the picket line to carry out his assignment. Hunter replied in the negative, and at this juncture Wagner determined that he would honor the picket line. Wagner did not cover his assignment to review and write a critique on "The Girl of the Golden West," but after returning to the Respondent's office after 8 p.m. Wagner wrote a newspaper article in which he reported both the MULO strike and its consequences, as well as limited references to Puccini's opera. Wagner left the article on Pulvermacher's desk when he departed the office, but Maraniss and other management officials subsequently determined not to publish the article on grounds that it was a "hard news" story, not a review, and Wagner's references to the conduct of the opera were sans the benefit of personal observation. The record further reveals that Associate Editor John Hunter attended the Puccini opera as a guest, and later, at the request of management, wrote a review which appeared in the Respondent's newspaper on May 14. While at home on the morning of May 13, Wagner received the letter from Elliott Maraniss notifying him of the 3-day suspension. In a later telephone conversation Maraniss expressed regret that it was necessary to disci- pline Wagner. In part, Maraniss' letter to Wagner of May 13, included the following statements: The discipline I am imposing is a three-day suspension without pay starting Friday and continuing through your next two scheduled work days. What was especially dismaying about your decision was its timing. Had you advised us in advance, we could have understood your position, even if we did not approve of it, and could have assigned another member of the staff. But you chose to wait to call me until the last minute when a substitution could not be made. By so doing you not only failed in your responsibility to your readers but caused management also to fail in its responsibility. Marie Pulvermacher testified in this proceeding and verified that Wagner was scheduled to cover and review "The Girl of the Golden West" at the initial performance on May 12. Pulvermacher testified that on a date she could not recall, probably a week or 10 days before the opera was scheduled, she told Maraniss that there was a strike at the Memorial Union and asked what would be done about coverage of the opera. Maraniss replied that Pulvermacher need not concern herself with the issue, that the City Desk would handle it. It is clear from Pulvermacher's testimony, as it is from Maraniss' testimony, that Wagner's name was not mentioned during the course of the conversation. Pulvermacher further testified that on the morning of May 12 she again approached Maraniss about the coverage 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the opera. Pulvermacher was not sure, but seemed to recall that she mentioned Wagner's name and expressed her reluctance to order him to cover the assignment. Maraniss agreed that he would order Wagner to continue with his assignment, and apparently instructed Pulver- macher to contact Wagner. Pulvermacher, however, did not contact Wagner until the evening of May 12. At that time, according to Pulvermacher, Wagner was still not sure whether he would carry out his assignment or honor the picket line, and she instructed him to be sure to notify Maraniss if he decided not to cover the opera. On cross-examination Pulvermacher related that she had two conversations with Maraniss on May 12 regarding coverage of the opera. Her testimony is not clear in which of these conversations Wagner's name was mentioned, if mentioned at all. What is clear, however, is that Pulver- macher herself was unsure whether Wagner would cover his assignment, and, accordingly, she did not give Maraniss any definite indication of Wagner's intentions. It is Maraniss' testimony that he first learned that the coverage of the opera presented a problem shortly after noon on May 12. Pulvermacher came to his office and, in the presence of Managing Editor Robert Meloon, stated that there were some difficulties in covering "The Girl of the Golden West." Pulvermacher told the management representatives that Wagner was reluctant to go through a picket line, and as a good union member Pulvermacher did not want to order him to do what she would not do herself. Maraniss asked whether the opera was an event which should be covered, whether it was a matter the Respon- dent's readers would expect to be covered, and Pulver- macher replied affirmatively to both questions. Maraniss stated that he could see no reason the event should not be covered but, when Pulvermacher again insisted that she could not order Wagner to cover the assignment, Maraniss agreed that he would take responsibility for the order. Maraniss directed that Pulvermacher inform Wagner of this decision, and that if Wagner had any questions he was to call Maraniss. To the extent there are differences in the testimony adduced from Pulvermacher and Maraniss, I credit the latter. Much of Pulvermacher's testimony was attended by an inability to recall any of the pertinent specifics of her conversations with Maraniss. Moreover, an equally great part of her testimony consisted of a recount of her own mental deliberations concerning Wagner's dilemma over the MULO picket line, at the expense of testimony of what was actually said in her conversations with Maraniss and Wagner. Accordingly, I find that the first notice to Maraniss that Wagner had some reluctance to cross the MULO picket line was on the afternoon of May 12. Even at this late date no definite notice was given to Maraniss that Wagner had decided not to carry out his assignment. Maraniss instructed Pulvermacher to notify Wagner that it was his order to cover the opera, and that Wagner was to contact him if there was any problem. Pulvermacher, however, chose to wait until 6 p.m. before she relayed the 3 The Cooper Thermometer Company, 154 NLRB 502, 504 (1965). 4 Virginia Stage Lines, Inc., 182 NLRB 717, 719-720 (1970). Overnrte Transportation Company, 212 NLRB 515. 521 (1974), and cases cited therein. information to Wagner, and Wagner made no contact with Maraniss until shortly before curtain call. Maraniss confirmed in his testimony that he received a call from Wagner about 7:30 p.m. on May 12. Wagner explained that there was a picket line at the Memorial Union and he was reluctant to cross the picket line to carry out his assignment. A lengthy conversation ensued about the picket line and Wagner's reluctance to cross. Wagner suggested that it was a free press issue, not a labor issue and Maraniss agreed. Wagner expressed that his reluctance to go through the picket line was a matter of conscience, but also expressed concern that reporters from the Daily Cardinal would crucify him if he did cross. Wagner finally asked what would happen if he didn't cross the picket line. Maraniss replied that if Wagner did not complete his assignment some discipline would be imposed, such as a suspension for 3 days to a week. Wagner, however, did not notify Maraniss with any definitiveness of what he intend- ed to do, and Maraniss was not aware until the following morning that Wagner had not completed his assignment. Upon the whole of the record, I find no merit in the Respondent's defense that Wagner's conduct was unpro- tected by Section 7 of the Act by reason that he acted out of fear of repercussions from fellow reporters if he failed to honor the MULO picket line. I credit Maraniss' testimony that in the conversation on the evening of May 12, Wagner did express some concern that he would be criticized by other reporters if he failed to honor the MULO picket line. There is, however, ample evidence in the record to support the conclusion that Wagner acted out of conscience and made common cause with the MULO strikers in support of their labor dispute with the University of Wisconsin. The focal point of the inquiry as to whether Wagner's conduct was protected, is the nature of the activity itself, not Wagner's motive.3 Even if, contrary to the facts, Wagner had acted totally out of concern that he would incur the criticism of his peers, that evidence would not support the Respondent's contention that his activities were unprotect- ed or unconcerted.4 Wagner was making common cause with the MULO strikers, plighting his troth with other employees for mutual aid and protection, and his conduct was protected and concerted under Section 7 of the Act.5 Nor do I find merit in the Respondent's defense that Wagner's conduct was unprotected by reason that he honored the picket line of strikers who are not employees within the meaning of Section 2(3) of the Act, who were engaged in an illegal strike under the law of the State of Wisconsin. The record will not, in the first instance, support the Respondent's contention that the MULO strike was illegal. It was stipulated by all parties that the employees of the Memorial Union are "limited term" employees, thus exempt from the provision of the Wiscon- sin statute concerning collective bargaining for state employees. 6 The Respondent contends, nevertheless, that the MULO strike was illegal under the common law of Wisconsin, and in support of this contention cites a 1970 6 111.80, wis. Stats. (1975) 312 THE CAPITAL TIMES COMPANY decision of the Circuit Court of Dane County, State of Wisconsin.7 It is clear that the board of regents of the University of Wisconsin never sought to enjoin the MULO strike, undertook no legal action to determine its supposed illegality, but did subsequently recognize and bargain collectively with the employees represented by MULO. There is nothing in this record, accordingly, to support a finding that the MULO strike was illegal under Wisconsin statutory or common law, and certainly no evidence to suggest that Wagner knew, or had reason to believe he was engaging in unlawful conduct when he made common cause with the MULO strikers. As to the 1970 decision of the Circuit Court for Dane County, it was an adjudication of a completely different strike by a court of general jurisdiction, and in my view is not depositive of the issues here in question. The essential issue in this proceeding is Wagner's right to exercise the rights guaranteed him by Section 7 of the Act, not the legality or illegality of the strike by MULO members against an agency of the State of Wisconsin. Wagner is an employee under Section 2(3) of the Act, employed by an employer defined in Section 2(2) of the Act, and it is not material that his activities were in concert with employees of an employer outside the scope of the National Labor Relations Act.8 I have also considered the Respondent's defenses that Wagner's conduct was unprotected because he performed a unique service for the Respondent, and that Section 7 of the Act is unconstitutional if interpreted to prohibit a newspaper from disciplining an employee who fails to carry out a newsgathering assignment. As a point of departure, it has always been the Board's position, and certainly binding on me, that the constitutionality of the Act is assumed in the absence of a binding court decision to the contrary. 9 There is no court determination with which I am familiar which precludes employees of a newspaper from exercising the rights guaranteed them by Section 7 of the Act, and it was long since established that the right of newspaper employees to bargain collectively and to engage in other activities protected by Section 7 of the Act is not an invalid invasion of the freedom of the press guaranteed by the first amendment.' 0 Nor does the fact that Wagner performs a unique service for the Respondent provide a ground for negating his Section 7 rights. To be sure, Wagner is an expert critic, more capable than any of the Respondent's other employees to perform the editorial function to which he was assigned on the evening of May 12. This fact does not, however, support the Respondent's contention that Section 7 of the Act does not extend to Wagner's activities. In a series of recent decisions the Board has held that editorial writers, notwith- standing the functions they perform in presenting an unbiased account of the news in their employer's publica- tion, are eligible to participate in the process of collective bargaining." If newspaper employees, whether editorialists or critics, have the right to bargain collectively, a fortiori, I The Regents of the University of Wisconsin v. The Teaching Assistants Association, etc., No. 130-095. 8 General Electric Company, 169 NLRB 1101, 1103 (1968), citing N.LR.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F.2d 503 (C.A. 2, 1942). 9 Amalgamated Lithographers ofAmerica, etc. (Employing Lithographers of Greater Miami). 130 NLRB 968, 991 (1961). they have the same right to exercise all of the guarantees which are specified conjunctively in Section 7 of the Act. Nor can greater merit be found in the Respondent's argument, similarly based on the first amendment, that the extension of Section 7 rights to Wagner would prohibit the newspaper from disciplining an employee who exhibits a bias in gathering and presenting the news. It is agreed that there is nothing in the scope of the National Labor Relations Act to deprive the Respondent of its right to discipline Wagner for a display of bias in his newsgathering and reporting activities, but bias has not been proved here because Wagner chose to exercise the rights accorded to him by the statute. 2 The Fourth Estate enjoys no immuni- ty from the application of the law, and the constitutional guarantee of freedom of the press creates no special privilege to invade the rights of others as established by law.13 There remains for consideration the Respondent's de- fense that Wagner was suspended for 3 days because he failed to give notice of his intent not to cover the assignment given him for May 12, and not for the reason that he engaged in protected concerted activity. In this defense I find merit. Wagner was fully aware, when the tentative calendar of events was arranged at the end of April or the beginning of May, that a picket line existed at the Memorial Union. Both Wagner and Pulvermacher took note of this fact when the assignments were made, and Pulvermacher subsequently brought this fact to Maraniss' attention, albeit without notice that Wagner was suffering conscience problems over the possibility that he would have to cross the MULO picket line to review the Puccini opera. On May 7, Wagner had a subsequent conversation with Pulver- macher, which was followed by a further conversation on the morning of May 12. In these conversations Wagner continued to express his reservations about crossing the MULO picket line, but it is clear from Wagner's testimony, as it is from Pulvermacher's, that Wagner had not then made up his mind which course of action he would follow. Wagner again talked to Pulvermacher about 6 p.m. on May 12, and the testimony of both conversants reflects that Wagner was still undecided. Instructed by Pulvermacher to call Maraniss if he decided he had a problem about carrying out his assignment, Wagner stalled until shortly before the opera was to begin. When Wagner finally called Maraniss, he engaged in a long harangue but returned to the Memorial Union without giving Maraniss any definite indication as to whether he would review the opera or honor the MULO picket line. Wagner's testimony is, in fact, that he made no definite decision to honor the picket line until after he had discussed the matter with John Hunter, and was assured by Hunter that Publisher McMil- lan would not take it as a personal matter if he complied with the dictates of his conscience. On the basis of all this evidence it is patently clear that Wagner never gave notice to the Respondent of his intent to honor the MULO picket io Associated Press v. N.LR.B., 301 U.S. 103 (1937). II The Express News Corp., 223 NLRB 627 (1976). 12 Associated Press v. N. L R.B., supra at 132. 13 Associated Press v. N. L R.B., supra, 132-133. 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line, and the Respondent had no opportunity to select a substitute to cover the May 12 performance of "'The Girl of the Golden West." Wagner had the right to engage in protected activity by not crossing the MULO picket line, but Wagner's exercise of that right must be balanced against the Respondent's right to conduct its business despite Wagner's sympathetic activities.14 Put otherwise, Wagner's right to engage in protected activity did not absolve him from the obligation to give his Employer timely notice of his intentions, and the Respondent's obligation to recognize Wagner's protected rights did not entail the obligation to condone his breach of the employment relationship.' 5 In determining an employ- er's claim of "business necessity" in cases where discipline is imposed on an employee who has engaged in similar protected activities, the Board customarily considers the availability of other employees who can cover the assign- ment.'6 There is some evidence here that the Respondent had other employees who were capable of carrying out Wagner's assignment, but the Respondent cannot be charged with the failure to utilize one of these employees where the evidence is clear that Wagner chose to exercise his Section 7 rights at the last possible moment. Upon all of the relevant and material evidence in this record, including the contents of the suspension letter given to Wagner on May 13, I find that Wagner was disciplined for failure to give his Employer timely notice that he would not carry out his assignment to review and write a critique of "The Girl of the Golden West." Nor do I consider the evidence that John Hunter attended the opera and wrote a review as a reason to negate this finding. Hunter is an associate editor, not an art reviewer and critic, and he was 14 Redwing Carriers, Inc., et al, 137 NLRB 1545, 1547 (1962). '5 N.L.R.B. v. Winn-Dixie Stores, Inc., 410 F.2d 1119(C.A. 5, 1969). "6 Braswell Motor Freight Line, 189 NLRB 503 (1971). " 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. not assigned to cover the Puccini opera. Insofar as the record reflects, Hunter's attendance at the opera on the evening of May 12 was pure happenstance, and there is no evidence that his attendance or ability to write a review was known to the Respondent when the suspension was meted out to Wagner on the morning of May 13. Accord- ingly, I find and conclude that, contrary to the allegation of the complaint, Wagner was not disciplined by the Respon- dent because he engaged in concerted protected activities. CONCLUSIONS OF LAW 1. The Respondent, The Capital Times Company, is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Newspaper Guild of Madison, Local 64, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent violated Section 8(aX)(l) of the National Labor Relations Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' 7 The complaint herein should be, and it hereby is, dismissed in its entirety. 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. 314