The Ogden Newspapers, Inc.

THE OGDEN NEWSPAPERS 957 The Ogden Newspapers, Inc. and The Newspaper Guild, AFL-CIO. Case 6-CA-8540 August 18, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On May 14, 1976, Administrative Law Judge Rus- sell M. King, Jr., issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which we were found to have vio- lated certain provisions of the National Labor Rela- tions Act, the National Labor Relations Board has ordered us to post this notice. WE WILL NOT discharge or otherwise discrimi- nate against our employees because of their pro- tected, concerted activities in supporting or join- ing The Newspaper Guild, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights protected by Section 7 of the National Labor Relations Act. WE WILL offer reinstatement to David Gossett to his former position or, if it no longer exists, to substantially equivalent employment, without prejudice to his seniority or other rights and privileges, and make him whole for any loss he may have suffered as a result of our discrimina- tion against him. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, The Ogden Newspapers, Inc., Wheeling, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(c): "(a) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 In view of the direct and circumstantial evidence of Respondent's knowledge of employee Gossett's union activity, we find it unnecessary to rely on the Administrative Law Judge's assertion as to Thomas Briley's presumed knowledge of Gossett's activity as set forth in In 37 2 In the absence of exceptions, the Board adopts, pro forma, the Adminis- trative Law Judge's recommendation that all other allegations of the com- plaint be dismissed THE OGDEN NEWSPAPERS, INC. DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge: This case was heard by me in Wheeling, West Virginia, on Janu- ary 7 and 8, 1976. The complaint alleges a series of viola- tions of Section 8(a)(1) and a single violation of Section 8(a)(3) of the National Labor Relations Act (the Act) oc- curring in the early spring and summer of 1975,' during which period an organizational campaign on behalf of The Guild (the Union) was in progress. The complaint alleges improper interrogation, surveillance, threats, and the un- lawful discharge of news reporter David Gossett because of his protected, concerted activities in supporting and campaigning for and on behalf of the Union.' Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: 1 All dates are in 1975 unless otherwise stated 2 The terms "Union" and "Guild" are used interchangeably herein 225 NLRB No. 134 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION The Company, a West Virginia corporation, is engaged in the printing, publication, and distribution of newspapers in several States. It so publishes a morning daily newspa- per, "The Intelligencer," in Wheeling, West Virginia. Dur- ing the 12-month period immediately preceding the is- suance of the complaint and notice of hearing herein, the Respondent had a gross income in excess of $200,000. Dur- ing the same period, the Respondent has held membership in and subscribed to various interstate news services, pub- lishing nationally syndicated features, and has and is ad- vertising nationally sold products. The Respondent sub- mits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find, as admitted, that the Union is a labor organization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Specific Allegations The Respondent company owns, operates, and publishes a morning and an afternoon newspaper in Wheeling, West Virginia. The morning newspaper is entitled "The Intelli- gencer" and is the subject of most of the evidence in the case. The afternoon newspaper is entitled "The News Reg- ister." 3 The two papers share the same physical facility and the same departments with the exception of their edi- torial staffs (including reporters), which are separate.' "The Intelligencer" editorial staff is divided into four sections or "sides," namely, Ohio, City, Moundsville, and Steuben- ville-Weirton. The combined staffs employ approximately 15 to 18 reporters, each with responsibility in and over the geographic area attached or assigned to the individual staff. The area covered by each staff is roughly designated in staff name. The Guild had been attempting to organize Respondent's Wheeling, West Virginia, papers for several years. Organizational activities intensified in 1975, aided by reporter David Gossett who was hired February 10. The complaint alleges first that in late March Regional Editor Robert DeFrancis unlawfully threatened employees with discharge because of union activities. The next allegation is that in late July City Editor Thomas Sterling engaged in improper interrogation and "creat[ed] the impression among employees that their [Union] activities . . . were being kept under surveillance." Gossett's alleged unlawful discharge occurred on August 11, followed by Editor Briley's alleged improper instructions to employees "to en- gage in surveillance and act as informers concerning the union activities . . . of their fellow employees," in late Au- gust. 3 The names of both papers and the term "Respondent" are used inter- changeably herein Unless otherwise stated, all individuals mentioned or referred to herein are employed by or connected with the morning paper, "The Intelligencer" B. Summary of Testimony and Evidence David M. Gossett was hired by the Respondent on Feb- ruary 10 as a reporter on the Respondent's "Ohio" staff. His employment was terminated by the alleged discrimina- tory discharge on August 11. Gossett's time was equally divided between office and field work consisting of obtain- ing news and covering stories. Gossett's home was Steubenville, Ohio, approximately 40 minutes from Respondent's offices. Prior to his employment with Re- spondent, Gossett has worked on the news staff of a Steu- benville newspaper for 6 months. Prior to his job in Steu- benville, Gossett had been attending college although he had not graduated. He was pursuing a course in journalism and, during college, he had worked on the school paper for approximately 3-1/2 years. Gossett was interviewed and hired by Francis Hollin- donner, Respondent's editor at the time.5 During Gossett's earlier employment with the Steubenville newspaper, he had been active in a current Guild organizational cam- paign and as such, he had worked closely with one Hannah Jo Rayl, a Guild representative who, at the same time, was also active in an organizational campaign at Respondent's newspaper. Several weeks after reporting to work for the Respondent, Gossett became involved in the organiza- tional campaign of the Guild at "The Intelligencer." He soon became one of the main organizers and continued to work closely with Rayl.6 The Guild's organizational cam- paign also involved Respondent's afternoon newspaper and to some extent Gossett involved himself in this cam- paign, although the majority of his activities involved his colleagues on the editorial staff of "The Intelligencer." During his employment with Respondent, Gossett, togeth- er with other employees, solicited support and attended "meetings" in the home of Tom Corrigan, who worked on the copy desk. The Guild's organizational activities, involv- ing both the morning and afternoon newspapers of Re- spondent, was directed towards all employees not other- wise represented and generally included the editorial, advertising, business, clerical, and circulation staffs. Gossett's activities would, on occasion, branch out in the form of direct contacts with employees of all of these staffs on both papers. During July and August, Gossett's imme- diate supervisor was Regional Editor Robert DeFrancis. Sometime in July, Briley called Gossett into his office and, according to Gossett, indicated that he was doing good work and that he could expect a raise at the end of 6 months of employment. Gossett also related that approxi- mately 2 weeks prior to his discharge he asked Briley for a transfer to the Steubenville-Weirton staff Briley's reply, according to Gossett, was that there were no openings at that time and Briley again commended him for his current good work on a coal strike story which he had been cover- 5 Editor Briley replaced Hollindonner in mid-April 6 Employee John Reichertz testified that he became familiar with the Guild's organizational campaign in the spring and in April was approached by Gossett who solicited his feelings regarding the Union Reichertz was also familiar with the fact that employee meetings were taking place and he numbers these meetings at between 5 and 10 , all of which he stated were either at the residence of employee Sharon Gibbs or employee Tom Corri- gan THE OGDEN NEWSPAPERS 959 ing I Gossett replied that he thought that he could still cov- er the strike from Steubenville but Briley apparently mere- ly took the requested transfer under advisement. During the last 2 weeks of Gossett's employment his im- mediate supervisor, Regional Editor DeFrancis, was on va- cation. During the first of these 2 weeks, Gossett was su- pervised by employee John Waiter, who was made acting regional editor during that period. During the second week, Gossett was supervised by City Editor Tom Sterling. On Sunday evening, August 10, Gossett testified that he telephoned the home of his vacationing permanent supervi- sor, Regional Editor DeFrancis, and informed DeFrancis that the Guild had "filed its petition" 8 on the previous Friday. The reason Gossett gave for this phone call was to inform DeFrancis not only that the "petition" had been filed but that he had overheard City Editor Sterling ques- tioning another employee regarding the organizational campaign, at which time (and according to Gossett) Ster- ling mentioned DeFranics' name as a possible participant in the campaign. Other than this telephone conversation with DeFrancis on August 10, Gossett testified that he did not personally inform or advise any other member of man- agement or any other supervisor of his organizational ac- tivities on behalf of the Guild. On August 11, Gossett reported for work as usual a little before 2 p.m. and was immediately called into Briley's of- fice and was discharged.' According to Gossett, Briley's reasons for the discharge were incompetency, a lack of ini- tiative, and the fact that Gossett confined most of his work in the areas of his own interest. Gossett testified that he inquired of Briley as to whether or not the decision to dis- charge him was his own or came from a higher source at the newspaper, and, according to Gossett, Briley refused to answer the inquiry. Gossett further testified that, up to the point of his discharge, his work had never been criticized and he had no prior warning that his discharge was immi- nent, although he did relate that on the previous Thursday night (August 7) his temporary supervisor, Sterling, was angry with him because "he thought I hadn't done enough work." This topic apparently came up during the discharge conference with Briley on August 11, as Gossett testified that he solicited Briley's attention to the Friday addition (of August 8) wherein Gossett maintained that he had more copy than any other reporter in the office According 7 Gossett maintained throughout that he received no criticism whatever for his coverage and news articles about the strike Editor Briley, on the other hand, denies this contention , alleging the "imbalance" in Gossett's strike articles as one of the reasons for Gossett's discharge 8 The term "petition" used here by Gossett in fact did not refer to a formal petition by the Guild but in reality referred to a letter from Union Representative Rayl to Respondent's president advising him of the organi- zational campaign and complaining of "intimidation " The letter was dated August 7 and on Friday, August 8, Rayl, together with Gossett, drove to Respondent's offices whereupon Rayl, alone and in person, delivered a copy of the letter to Respondent's president, G Ogden Nutting 9 Upon being discharged , Gossett was also handed a termination letter, signed by Briley and stating in part as follows . I am sorry to say that your work has not been of the caliber we like to see in a young newsman You have frequently shown a lack of initiative in digging up stories , both news and features, in your area More disturbing, you have been less than aggressive in pursuing stories other than those in which you seem interested I paid particular atten- tion to your work the past two weeks, and it was not up to the stan- dards I expect to Gossett, Briley's reply was that he hadn't talked to Ster- ling since Thursday afternoon and that he was unfamiliar with Friday's paper Gossett also testified that he had been informed by em- ployee Tim Holton that the "bosses" had indicated that he (Gossett) was "involved with it" and that Gossett "would be taken care of, once the Guild took some action." 10 Margaret Beltz, presently working for the afternoon newspaper, had been employed by "The Intelligencer" since 1969. She had changed to the afternoon paper in De- cember 1975. Beltz was familiar with the organizational activity which occurred in 1975 and was further familiar with Gossett's union support. In late June or early July, she attended a union organiza- tional meeting after which she testified that City Editor Sterling approached her and asked her "why he wouldn't be invited to union organizing meetings," to which she re- plied, jokingly, that it was probably because he was "mid- dle management," and that "he might tell it to higher up." Also during this conversation, Beltz testified that Sterling mentioned Gossett's name and the name of Sharon Gibbs, indicating that they were union organizers . She further tes- tified that Sterling then asked her whether or not employee Tom Corrigan was involved, to which she replied that she was uncertain as to just who was involved and to what extent. At the time of this conversation with Sterling, Beltz had apparently been having "certain problems in [her] relation- ship to people in the news room," thus causing her a "prob- lem" with Editor Briley. During this period, Sterling had been counseling Beltz periodically in an attempt to solve the existing problems. On cross-examination and when asked whether or not Sterling attempted to interrogate her regarding union activity, Beltz replied "no." Beltz also testified that the union campaign was "pretty much widespread knowledge in the office" and that "it was not very subtly conducted." The term "widespread knowl- edge" was elaborated upon by Beltz in cross-examination when the following question elicited the following answer: Q. When you say widespread knowledge, you mean widespread knowledge among the management em- ployees9 A. Yes. Lawrence Crofford was employed as a reporter for "The Intelligencer" in September Prior to that and since 1973 he was employed by the afternoon newspaper. Crofford testi- fied that on August 28 he went to Briley's office to seek a transfer from the staff of the afternoon paper to the morn- ing newspaper, whereupon the two engaged in conversa- tion concerning various topics. Crofford related that Briley asked him if he "knew that there was union activity going on in `The Intelligencer,' " to which Crofford replied "yes." Crofford went on to testify that Briley stated "that there was deviseness [sic] in his staff, and that whether or not I (meaning Crofford) would join a union would be my deci- sion, but that he didn't want me to be pressured either by 10 Holton, in his testimony, refers to a conversation that he had with City Editor Sterling, apparently during the first week of August Holton was about ready to leave for his vacation and he testified that Sterling advised him not to be "surprised" if Gossett was not at the paper when he returned 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management or by union people, and that if I felt that anyone was pressuring me, I should come to him and tell him about it." Although Crofford knew Gossett "only slightly," he testified that he did see Gossett at a meeting of the organizing committee for the Guild held at employee Dick Cameron's home. At that time, Cameron was a re- porter for the afternoon newspaper. Myron Simms has been employed as a printer with the Respondent for 29 years. He is also president of the Local International Typographical Union (ITU) which repre- sents a unit of approximately 20 employees at Respon- dent's newspaper. Simms testified that the ITU members have been working for the Respondent for approximately 3 years without a contract. Sometime in November or De- cember 1975, Simms was summoned to President Nutting's office and a conversation regarding unions ensued." Simms testified that during the discussion , Nutting indi- cated that he was antiunion, that he had trouble with unions trying to organize a paper which he owned in Par- kersburg, and "that the Guild was trying to organize the newsroom in Wheeling." Further and according to Simms, Nutting accused him of "helping the Guild," stating that he (Simms) "would be happier some place else, and we would be a lot happier here without you, so why don't you quit." 12 Simms' response to Nutting's admonition was es- sentially that he did not intend to quit until after the first of the year and further until he received some information regarding a pension." Timothy R. Holton is a high school student who has been employed, part-time, by "The Intelligencer" since De- cember 1973. He had been approached by Gossett in June regarding his feelings about a union. He has also attended union meetings. Holton testified that in late July he was approached by City Editor Sterling who asked him if he "knew anything about a union being brought down here, or was there union activity going on." Holton also testified regarding a telephone conversation he had with Sterling during the week of August 4 and wherein, according to Holton, Sterling inquired as to whether Robert DeFrancis was involved in union activity. Additionally, Holton testi- fied that Sterling asked him "if the major problem was coming from the back of the room." 14 Holton further tes- tiifed that, prior to his departure for a vacation, Sterling ii Simms was allowed to testify regarding this discussion over the strong objections of Respondent's counsel The thrust of the testimony is suppor- tive of the alleged union animosity on the part of the Respondent in this case In the main, Respondent's counsel , in support of the objection , argued relevancy in light of the fact that the discussion took place after formal notification to the Respondent by the Guild on August 8 Later and in testimony , Nutting, without objection , refers to the conversation and in effect admits all essential elements objected to here 12 The General Counsel does not herein allege any violation of the Act as a result of these remarks 13 The cold words from the transcript regarding the discussion could easi- ly and surely lead one to conclude that only animosity toward the Respon- dent was created in Simms as a result of Nutting 's admonition On the contrary, and as unusual as it may seem , I detected only slight (if any) ill feelings on the part of Simms who in fact gave the impression of one who had lived and worked hard and long and was not easily impressed or shaken by any such remarks I also credit his testimony entirely 14 The evidence establishes that Sharon Gibbs and Gossett occupied desks in the back of the newsroom at Respondent 's facility, and that both Gibbs and Gossett were active in the Guild 's organizational campaign had advised him not to be "surprised " if he returned and found Gossett no longer employed . 1i On cross-examina- tion, Holton admitted that he was "not positive" that Ster- ling had mentioned Gossett 's name in the conversation but he was certain that the name of employee Russell Stefill was definitely mentioned . Stefill, according to Holton, was also hired in December 1973 and worked in the newsroom as a reporter . Stefill was also discharged at the same time as Gossett and after Briley took over the editorship of the newspaper from Hollindonner.16 Hannah Jo Rayl is currently the Human Rights coordi- nator for the Guild. She assumed that position in Septem- ber 1975. For a year prior thereto, she was an international representative of the Guild, with the primary function of "organizing." Rayl became involved in an organizational campaign in Steubenville, Ohio, in December 1974, when she met Gossett. Rayl and Gossett worked together in Steubenville and when Gossett left his employment in Steubenville and went to work for the Respondent on Feb- ruary 10, the two continued to work together in an organi- zational effort at Respondent's newspaper. Rayl had start- ed an "organizational probe" of Respondent 's newspaper before Gossett arrived . During the spring and part of the summer, Rayl continued to work personally with Gossett and Sharon Gibbs, together with other employees of Re- spondent, in their organizational efforts. On Thursday, Au- gust 7, Rayl drafted and mailed a letter to President Nut- ting, informing him of the organizational intents of the Guild and complaining that certain employees had been "subjected to questioning by [Nutting or his] agents con- cerning their Guild interest and activities ." On Friday, Au- gust 8, Rayl went to Nutting 's office and conferred with him personally and additionally delivered to him a copy of the August 7 letter. Their meeting was apparently very short and Rayl testified that Nutting merely stated "that he did not believe that his employees were serious about join- ing any kind of a union." Prior to August 7, Rayl testified that she had conferred with Gossett on August 5, and that as a result of that conversation she concluded that Gossett might be discharged. This possiblity was a motivating fac- tor for the August 7 letter. Sharon Gibbs has worked for the Respondent for 3 years, first as a copy editor and thereafter as a reporter, a position which she assumed in July and presently holds. Her union interest and activities began before Gossett was hired by the Respondent and after Gossett came to the newspaper, the two worked closely in the organizational campaign. Gibbs and Gossett appeared to have been prime movers in the campaign and the most active employees in the organizational attempt . Gibbs testified that sometime in late March 1975, she, Gossett, and Regional Editor De- Francis 17 were having lunch together when DeFrancis stated that "he did not think that a union would bring any benefit to the Company, and if anybody did come into the 15 According to Gossett, Holton related this remark to him prior to his discharge See In 10, supra 16 The Stefill discharge is not mentioned in the complaint herein and is not a subject of this case 17 DeFrancis, according to Gibbs and to her knowledge, did not have any authority to hire or terminate employees , notwithstanding his title and posi- tion as a regional editor THE OGDEN NEWSPAPERS 961 newspaper to organize it, that he would tell them to pack their bags and leave." 18 On cross-examination, Gibbs indi- cated that she took DeFrancis' remarks as an expression of his personal views given during a "philosophical discussion of unions." Thomas Corrigan has been employed by the Respondent as a copy editor for 4 years. In addition to editing copy he also writes headlines, works on page layouts, and occasion- ally on Sundays he acts as the "Sunday editor," in charge of the reporting staff. The two Sundays prior to Gossett's discharge were days that Corrigan worked in the capacity of Sunday editor, a position with responsibilities equivalent to those of a "City editor." Gossett apparently had worked on both Sundays.19 Corrigan testified that in his opinion Gossett's copy "was better than average." 20 Corrigan fur- ther testified that although he was familiar with complaints about some reporters, he could not remember any com- plaints regarding Gossett. G. Ogden Nutting is the president and general manager of Respondent. Nutting, in testimony, confirmed the meet- ing with Rayl on August 8, and further indicated that he "had over the last 3 or 4 years, reports .. . that the Guild was organizing our newspaper in Wheeling." Nutting's feelings regarding the Guild were clearly stated by him as follows: My feelings last year, my feeling today, my feeling three or four years ago is the same, I don't think that the Guild is an appropriate, nor necessary unit or union to be representing our employees. Nutting further testified that the week following receipt of Rayl's letter (the week beginning on August 11, the date of Gossett's discharge) he conferred with "department heads" and "management people" about the Guild's effort. He further indicated, however, that he spoke to no one about the Rayl letter on its delivery date (Friday, August 8), and that he left the office early that day and shortly after Rayl's visit.21 Frances Hollindonner became publisher of a newspaper in Parkersburg, West Virginia, which is also owned and operated by Respondent. He assumed that post on May I and prior thereto he had been the editor of Respondent's morning newspaper in Wheeling since November 1970. As editor, Hollindonner had the responsibility of the entire news gathering operation, including the hiring and firing of personnel and directing the paper's various editorial poli- cies. Hollindonner interviewed and hired Gossett on Feb- ruary 10 as a "general assignment reporter." Hollindonner testified that it had been his employment policy to evaluate the performance of new employees "no sooner than 3 months, and no later than 6 months after their employ- ment " He further testified that this employment policy was related to Gossett when he was hired. is DeFrancis testified that he had "no recollection" of the conversation 19 Although the record is not definite on this fact, it is undisputed that Corrigan had an opportunity to observe Gossett and review his copy 20 This testimony was allowed over the objection of Respondent's coun- sel, who argued Corrigan's lack of qualifications to give such an opinion 2i Before leaving, however, Nutting met with City Editor Sterling, who complained about Gossett's departure the previous evening contrary to his (Sterling's) instructions According to Nutting, he told Sterling ', take the matter up with Editor Briley Thomas Briley became editor of the Respondent's morn- ing newspaper in mid-April 1975. Prior thereto he worked with the Associated Press in various cities for 12 years after having initially worked for a newspaper in Nashville, Ten- nessee, for 25 years. As editor, Briley was in charge of the entire newsroom and its employees , and he was further responsible for the editorial contents of the newspaper. Bri- ley felt that accuracy and fairness, including balance, were important principles . He also felt that reporters should be aggressive and create feature ideas. Briley testified that he initiated an informal 6-month probationary period for new reporters.22 Sometime in the spring and after Briley's arrival, a num- ber of "merit" increases in salary were awarded to employ- ees of the newsroom . Gossett had not received the increase which was given to certain employees who had been with the Respondent for a longer period of time. Briley testified that in late June or early July, he conferred with Gossett regarding his work and informed him that he would be evaluated at the end of 6 months . At the conference, Briley testified that he pointed out both good qualities and bad qualities of Gossett's work. Prior to the conference , Briley testified that he had conferred with DeFrancis (Gossett's immediate supervisor), who gave Gossett a "mixed re- view." Briley further defined "mixed review" as that in- cluding "some criticism" and "some praise." However, during Briley's conference with Gossett in late June or ear- ly July, he did not mention his views regarding Gossett's coverage of the coal company strike , testifying that he "talked in more general terms." He did , however, mention to Gossett that, in his opinion, Gossett had been "disdain- ful" of a mayor in a neighboring town . Briley indicated that his criticism went beyond one single mayor and that he felt that Gossett failed to properly handle several small town mayors An additional criticism Briley had regarding Gossett involved Gossett's alleged dislike and sometimes failure to do "rewrites ." Briley further reiterated on cross- examination that he both "praised" and "criticized" Gossett's work during the conference.23 In testimony , Briley also complained that Gossett had failed to follow up a "lead" that had been given to De- Francis who had thereafter passed the same on to Gossett. This allegedly occurred sometime during the summer and, according to Briley, Gossett failed to write a story regard- ing the lead. Briley further and in his testimony criticized Gossett for what he characterized as "gross imbalance" in some of his news stories. Gossett had been covering a par- ticular story concerning a strike involving coal companies 22 There is some conflict in the record as to whether or not such a proba- tionary period was in existence prior to Briley's arrival in April 1975, and as to whether or not Briley actively implemented the policy The policy was virtually unknown to most of the employees who testified, including Gos- sett, Reichertz, Beltz, and Crofford 23 1 can only conclude here, from the demeanor and manner of Briley's testimony, that the conference with Gossett in late June or early July was a normal or routine conference with an employee, prompted by Briley's re- cent arrival and the fact that Gossett had not yet received a merit increase. The general tenor of Briley's testimony lead me to conclude that his remarks to Gossett were not admonishments but more in the vein of a "pep talk," indicating to Gossett that he too would get his normal merit increase at the appropriate time but that he should be aware of some deficiences and at- tempt to improve himself in these areas 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to his discharge . Briley indicated that he found fault with some of Gossett's stories involving the strike and that he, on occasion, would mention his views to DeFrancis (Gossett's supervisor). Briley's main complaint regarding these stories involved what he characterized as a lack of adequate comment from the companies or in effect, man- agement, thus resulting in imbalance. Briley further testified that in connection with his 6- month evaluation of Gossett and during the 2 -week period prior to Gossett's discharge, he conferred with employee Waiter, a temporary supervisor of Gossett during DeFran- cis' vacation. Waiter complained to Briley that Gossett was "spending a lot of time on the telephone ." Briley confront- ed Gossett with this complaint approximately 1 week prior to his discharge , and Gossett replied that he was merely talking to "contacts." Also sometime during the last 2 weeks of Gossett's employment, Briley testified that he conferred with Sterling, who, during 1 of the last 2 weeks, had been another one of Gossett 's temporary supervisors in DeFrancis' absence. According to Briley, Sterling indi- cated that Gossett's attitude was not particularly good about doing assignments from his editors. Briley also testified that he "actively . . . started" think- ing about Gossett's discharge the week of July 28 "because that was when [he] started to concern [himself] with [Gos- sett's] 6-month review." According to Briley, his actual de- cision was made during Gossett's last week of employment (the week of August 4), at which time he testified that he was unaware of Gossett's organizational activities on be- half of the Guild. On Thursday, August 7, Briley left to visit relatives in Tennessee , returning on the morning of Monday, August 11 . He further indicated that upon his departure Thursday , he had already decided to discharge Gossett and another employee but that he decided to wait until the following Monday so there would be no disrup- tion in the newsroom in his absence . Briley also testified that he did not confer with President Nutting 24 about his decision to discharge Gossett and told only his wife of the decision . He further testified that he found out about union representative Rayl's letter "sometime late in the week of ... August 10." 5 On Monday , August 11, Briley called Gossett into his office and handed him a letter of termina- tion.26 Briley's overall reason for discharging Gossett was that he failed to "measure up" to his (Briley's) standards. Briley denied instructing employee Crofford on August 28 to engage in surveillance and inform him regarding union activities, further stating that "my years of experi- ence dealing with the Guild in particular , had taught me what I can say and what I can't say, and that certainly would have been outside that province." Robert DeFrancis is a regional editor with Respondent's morning newspaper and was Gossett's immediate supervi- sor during his employment . DeFrancis' supervisor was Edi- tor Briley. DeFrancis testified that sometime in June he conferred with Briley regarding pay raises and at that time commented to Briley that he was "concerned that [Gossett] had made judgments a little too quickly on stories that he had handled." However, he further testiifed that the reason for not recommending Gossett for a pay raise was "be- cause of the short period of time that he had been em- ployed." DeFrancis also testified that sometime after the June meeting with Briley , he mentioned to Briley, in the form of a complaint, that Gossett was not doing rewrites, characterized by DeFrancis as "rudimentary routine work." DeFrancis, in testimony, also indicated that at one point he received a lead from Briley regarding a weigh sta- tion on a interstate highway, which he turned over to Gos- sett. He thereafter received no copy from Gossett regarding the lead. DeFrancis' overall evaluation of Gossett , in testimony, was "that he was coming along okay , in certain aspects of his job . . . [but] overall I was not totally pleased with his work." Further and regarding Gossett's working habits, DeFrancis testified that Gossett had "leveled off" in June and that thereafter "he didn't show much in initiative work to me." In DeFrancis' prehearing affidavit executed on Oc- tober 24, he indicated that Gossett was "basically .. . coming along okay . . . [s]ubsequent to June." When cross-examined as to the apparent discrepancy , DeFrancis testified that "I apparently didn't read [the affidavit] close- ly enough when I signed it." DeFrancis also testified that he was not aware of an organization effort by the Guild prior to Sunday, August 10, when he was notified at his home by telephone of such activities by Gossett , who also complained in that conversation of treatment by a tempo- rary supervisor during DeFrancis' military leave.27 Thomas Sterling has been city editor of Respondent's morning paper since March 1972 . He acknowledged re- ceiving a phone call one evening from employee Holten sometime in the summer . Holten had telephoned Sterling to explain to him that although he had been involved in the union campaign, he was no longer involved . Sterling testi- fied that he named the employees working under him and asked Holten if any of them were involved . Sterling further testified that the reason he questioned Holten was to "find out if any of my people were involved, and if this was the cause of what was causing the disturbance at the paper." Sterling also testified that he had "heard rumors" that Gossett was involved in the union organizational cam- paign. He related an incident occurring during the evening hours of Thursday , August 7, involving Gossett , indicating that he had told Gossett earlier in the evening to remain at the paper before departing in order to check a story that Gossett had handed in. After checking the story he discov- ered that Gossett had left without notice.28 Sterling further testified that the following day, Friday, August 8, he met with President Nutting at approximately 12 noon or shortly thereafter to discuss a particular news story and at the end of that conversation he had told Nutting about the Gossett incident of the previous evening. He denied discussing Gossett's union involvement with Nutting.29 24 Nutting also indicated in his testimony that he never discussed 27 During the last week of July and the first week of August , DeFrancis Gossett's discharge with Briley went on military leave and upon his return Gossett had been discharged 25 That letter was dated August 7 and a copy of the same was hand - 28 Gossett, in testimony, denied the incident delivered to President Nutting on August 8 29 Nutting testified that the August 8 conference with Sterling occurred 26 See fn 9, supra, for the significant portions of the letter after his meeting with union representative Rayl THE OGDEN NEWSPAPERS 963 Sterling also related that sometime in late July, he con- ferred with employee Beltz, who, at that time, had been having some "emotional . . . and ... personal problems" with various members of the staff. According to Sterling, the only conversation he had with Beltz about the Union involved his statement to her that he "didn't get invited to meetings." Sterling denied interrogating employees con- cerning their union activities for the purpose of obstructing or hindering union organizational activity. He indicated that there was a "tenseness" among the staff of the newspa- per during the summer and that he felt that it could have been caused by the Union. III. EVALUATION OF LAW AND EVIDENCE The first allegation in the complaint, in time of occur- rence, concerns a statement made by Regional Editor De- Francis to employee Sharon Gibbs while at lunch together in late March. Gossett was also present. The complaint characterizes the remarks as "threatening employees with discharge if they engaged in union activity." I disagree, and do not find any violation here. According to Gibbs, whose testimony I credit, DeFrancis stated "he did not think that a union would bring any benefit to the Company, and if anybody did come into the newspaper to organize it, that he would tell them to pack their bags and leave." 30 The remark itself is subject to several interpretations. However, even taking the cold words in their worst light, thereby construing them to include or apply solely to employees, I am considerably influenced by Gibbs' characterization of the remark as DeFrancis' personal views given during an informal lunch and during a "philosophical" discussion of unions. Of further significance is the apparent and contin- ued good relationship between Gibbs and Gossett (who were active organizers), and DeFrancis, at least up to the time of Gossett's discharge on August 11. The next allegation in the complaint concerns the ac- tions of City Editor Thomas Sterling in late July and on or about August 8. They involve remarks to employees Mar- garet Beltz and Tim Holton, allegedly constituting improp- er interrogation and creating the impression that union ac- tivities were under surveillance. Beltz attended an organizational meeting in late June or early July. During this time, she was also having some "problems in [her] rela- tionship to people in the news room." Sterling was periodi- cally counseling Beltz about the "problems" and sometime after the union meeting and in conversation the subject of the Union came up. Sterling knew about Beltz' attendance and also mentioned that he knew that Gossett and Gibbs 30 DeFrancis testified that he had "no recollection" of the conversation I do not consider this comment as a denial and if so intended, I do not credit it as such I subject DeFrancis' testimony herein to close scrutiny and credit it only in some minor areas DeFrancis was Gossett 's immediate supervisor and, I conclude from the record as a whole, Gossett considered DeFrancis as a friend It was Gossett who called DeFrancis at home the day before his discharge to warn DeFrancis, in effect, that his name had been mentioned as a union supporter DeFrancis , I conclude , later turned on Gossett His preheating affidavit indicated that Gossett was "progressing" while his actu- al testimony was to the contrary The discrepancy, in my opinion, is too significant to excuse or understand by and through DeFrancis' explanation that he "apparently didn't read [the affidavit] closely enough" when he signed it were union organizers. He then asked Beltz whether or not employee Tom Corrigan was involved, to which Beltz re- plied that she was uncertain as to just who was involved 31 Sterling also approached employee Tim Holton in late July and asked Holton if he knew anything about a union or if there was any union activity going on.32 In a telephone conversation sometime during the week of August 4, Ster- ling also asked Holton if Regional Editor Robert DeFran- cis was involved in union activity and whether or not "the major problem was coming from the back of the [news]- room," where the desks of Gossett and Gibbs were placed Sterling denied the interrogation by Beltz but essentially admitted the interrogation of Holton over the phone in August. He was not asked (nor did he testify) about the July conversation with Holton. I credit the testimony of Beltz 33 and Holton over that of Sterling where conflicts exist. The complaint charges City Editor Sterling 34 with both improper interrogation and "creating the impression among employees that their [union] activities . . . were being kept under surveillance." 35 I find that in this case there is only a fine line (if any at all) between the two allegations. Accordingly, I find Sterling's conduct to be more accurately described as "interrogation" alone which I further find (in all instances discussed above) to be beyond the permissible limits of free speech protected by Section 8(c) of the Act, and thus violative of Section 8(a)(1) of the Act The complaint also alleges that Editor Briley, on or about August 28, improperly instructed employees to "en- gage in surveillance and act as informers." The only evi- dence in the record which could possibly support this alle- gation is found in the testimony of reporter Lawrence Crofford, who, at the time, worked for Respondent's af- ternoon paper. Crofford spoke to Briley on August 28 to seek a transfer to the staff of the morning paper, "The Intelligencer." 36 During the conversation, and according to Crofford, whose testimony I credit, Briley asked him whether or not he "knew that there was union activity going on in "The Intelligences."' to which Crofford replied "yes." Further and according to Crofford, Briley went on to comment as follows: 31 On cross-examination , Beltz was asked outright whether or not Sterling attempted to "interrogate" her regarding union activity, to which she replied "no" In my findings and conclusions in this case , I have placed little or no weight on this reply I consider that in these matters , the term "interrogate" is a word of art bearing legal ramifications far beyond the knowledge and comprehension of an employee such as Beltz 32 Beltz testified that the union campaign was not subtly conducted and "pretty much wide spread knowledge," even among management employ- ees, a fact readily admitted in general terms herein by Editor Briley and President Nutting As Nutting put it, he "had over the last 3 or 4 years, reports that the Guild was organizing our newspaper in Wheeling" I can only conclude that Sterling also knew about the union activity and thus I further conclude here that , in asking Holton whether or not "there was any union activity going on," he was seeking more specific information 33 My impressions of Beltz' testimony and her demeanor were that she, in fact, was attempting to place Sterling in the best light possible 34 The complaint alleges and the Respondent admits that City Editor Sterling, Regional Editor DeFrancis, and Editor ("in-Chief") Briley are su- pervisors within the meaning of Sec 2(l1) of the Act I accordingly so find and note here that no issue or claim to the contrary was made during the hearing or in the briefs submitted herein 35 Regarding Sterling, the two allegations are in separate and individually lettered paragraphs in the complaint (6(a) and (b) ) 36 In September, Crofford was transferred to the morning paper 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... there was deviseness [sic] in his staff, and that whether or not I [meaning Crofford] would join a union would be my decision, but that he didn't want me to be pressured either by management or by union people, and that if I felt that anyone was pressuring me, I should come to him and tell him about it. Proof of the allegation rests solely on the above remark, as related by Crofford in his testimony. Briley denied in- structing Crofford to "engage in surveillance and act as informer," further stating as follows: My years of experience dealing with the Guild in par- ticular, had taught me what I can say and what I can't say, and that certainly would have been outside the province Notwithstanding having credited Crofford's testimony, I cannot conclude (and thus do not find) that Briley's re- mark to Crofford constituted instructions to engage in sur- veillance and be an informer. Crofford came to Briley, in effect, for a job, and was soon thereafter hired Briley knew about the union campaign and simply told Crofford that the choice of joining would be his. Briley's only request of Crofford was to report to him in the event of pressure. I conclude and find that the remark was made (and accept- ed) merely and solely as guidance that the extent (if any) of Crofford's future involvement with the Union should and would be Crofford's choice alone. I further and according- ly find that Briley's remark constituted free speech protect- ed by Section 8(c) of the Act. I now turn to the discharge of reporter David Gossett, which I find to be motivated (at least in part) by his union and concerted activities. Gossett was employed on Febru- ary 10 and discharged on August I1 by Briley, who had arrived as editor in mid-Apnl. He was the most active em- ployee in support of the Union, which the Respondent was against. He also worked closely with Rayl, the Union's out- side representative, who officially and personally informed President Nutting of the campaign on August 8. City Edi- tor Sterling knew about Gossett's involvement and, I con- clude, was well aware of the Respondent's overall position regarding the Union. Briley also, I conclude (and contrary to his testimony), knew of Gossett's union activities. He had "years of experience dealing with the Guild" and had remarked to Crofford that there was "deviseness [sic] in his staff." 37 Of significance here is the meeting that City Edi- tor Sterling had with President Nutting Friday, August 8, after Union Representative Rayl had personally delivered her letter to Nutting. Sterling lodged a complaint about Gossett at the time and Nutting indicated that Sterling should take the matter up with Briley. However, they both indicated, in testimony, that the union organization and campaign and Rayl's letter were not mentioned. I do not credit this testimony. Rayl's visit and letter would normally have been in the nature of at least a small bombshell, and 37 This statement was made to Crofford on August 28 , some 17 days after Gossett's discharge However, as overall editor of the paper and in light of the knowledge and feelings of its president and general manager (Nutting), it is inconceivable that Briley was not aware of the extent of and main participants in the union campaign , which was gaining steam upon his arriv- al at the paper a matter of great and immediate concern to Respondent's entire management. I conclude and find that in fact the visit and letter were discussed and were known to Briley upon his return Monday morning, August 11, a few hours after which Gossett was discharged. Consistent with this conclusion, I further do not credit Briley's testimony that he decided to discharge Gossett the week of August 4 sole- ly because Gossett did not "measure up" 38 and he was due his "6-month review." Briley's 6-month review policy was admittedly informal and virtually unknown among the em- ployees. I choose not to speculate or conclude when and whether it was formulated and actually put into effect at the paper I do, however, conclude and find that it was used in this case, at least partially, as an excuse or pretext on which Briley relied in testimony for the timing of Gossett's discharge. Regional Editor Robert DeFrancis was Gossett' s imme- diate supervisor throughout Gossett's employment with the Respondent. I find unusual and suspicious the fact that Briley failed to discuss Gossett's discharge with DeFran- cis.39 Briley had received a "mixed review" from DeFrancis regarding Gossett's work approximately a month before the discharge. Briley himself conferred with Gossett in July and although there is conflicting testimony as to what Bri- ley said, I conclude that the tenor and result of the confer- ence was far from indicative of any vulnerability Gossett may have had to discharge During Gossett's last 2 weeks of employment and in the absence of DeFrancis, he was supervised by Waiter and Sterling. According to Briley, both Waiter and Sterling had complained to him regarding incidents involving Gossett. Briley indicated that these complaints influenced his deci- sion to discharge Gossett. Waiter and Sterling were Gossett's temporary supervisors, each for only 1 week. The record reflects that Briley, as editor, and in his dealings with reporters throughout, had followed a chain of com- mand, with little or no direct and daily contact. It thus appears to me highly questionable that Briley should (or did) give more than minor (if any) weight to the complaints of Waiter and Sterling.40 The Respondent's purported sole reasons for discharging Gossett do not withstand careful scrutiny. I conclude and find that the preponderance of credible evidence presented in this case establishes that Gossett's organizational and union activities were a motivating factor in Gossett's dis- charge. Upon the foregoing findings of fact and upon the entire record, I hereby make the following: 38 In using this term here and as used by Briley, I take it to include all of Briley's specific testimonial criticisms of Gossett's work and abilities 39 1 am mindful of the fact that DeFrancis was on military leave the last 2 weeks of Gossett's employment, and that Briley left to visit relatives in Tennessee on August 7 However, Gossett himself reached DeFrancis at home by phone on Sunday, August 10, and DeFrancis returned to work the next day (August 11, the date of the discharge) Briley had ample opportuni- ty to discuss the matter with DeFrancis 40 Sterling was, however, privy to either Briley's intentions or, in some way, to Gossett's vulnerability , as he indicated to employee Holton in the first week of August and upon Holton's departure for vacation that he should not be "surprised" if Gossett was gone upon his return In this con- versation , Sterling also questioned Holton about union activities and asked Holton "if the major problem was coming from the back of the room," referring to where Gossett and Gibbs sat THE OGDEN NEWSPAPERS 965 FURTHER FINDINGS AND CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act.41 3. The Respondent, in July 1975 and on or about Au- gust 8, 1975, engaged in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by interrogating employees concerning their union activities and concerning the union activities and sympathies of their fellow employees. 4. The Respondent, on August 11, 1975, engaged in un- fair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act by discharging David Gossett because of his participation in union and protected, concerted activities. 5. That the Respondent has not otherwise violated the Act. THE REMEDY The recommended Order will contain the conventional provisions in cases involving findings of interference, re- straint, coercion and unlawful discharges, in violation of Section 8(a)(1) and (3) of the Act. This will require the Respondent to cease and desist from the unfair labor prac- tices found, to offer reinstatement with backpay to David Gossett, and to post a notice to that effect. In accordance with the usual requirements, reinstatement shall be to the employee's former position or substantially equivalent po- sition, without prejudice to his seniority and other rights and privileges. The discrimmatee shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of his discharge to the date he is offered reinstatement by the Respondent, less net earnings, if any, during such period, to be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER42 The Respondent, The Ogden Newspapers, Inc., Wheel- ing, West Virginia, its officers, agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in, support for, or activi- ties on behalf of the Newspaper Guild, AFL-CIO, or any other labor organization, by discriminating in any manner against any of its employees in regard to their hire and tenure of employment, or any term or condition of employ- ment, because of their union membership or sympathies, or activities. (b) Interrogating employees concerning their union ac- tivities and concerning the union activities and sympathies of their fellow employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer David Gossett immediate and full reinstate- ment to his former job, or if said position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for such loss of pay he may have suffered as a result of Respondent's discrimination against him, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful to an analysis of the amount of backpay due under the terms of this Order. (c) Post at its facilities in Wheeling, West Virginia, cop- ies of the attached notice marked "Appendix." 43 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by an authorized rep- resentative of the Respondent, shall be posted immediately upon receipt thereof and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. The Respondent shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges unfair labor practices not found herein. 4i Both I and 2, above, were admitted in Respondent's answer 42 In the event no exceptions are filed as provided by Sec 10246 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 43 In the event 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "