Waggener-Walker Newspapers, Inc.

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waggener-Walker Newspapers, Inc. and Daniel B. Goldberg. Case 9-CA-22716 15 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 18 September 1986 Administrative Law Judge Walter J. Alprin issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the Charging Parties and the General Counsel each filed briefs in response to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Waggener- Walker Newspapers, Inc., Columbia, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Vyrone Alex Cravanas, Esq., for the General Counsel. James D. Zornes, Esq., of Columbia, Kentucky, for Re- spondent. Daniel B. Goldberg, Esq., of Columbia, Kentucky, Charg- ing Party, for Appalachian Reserve and Defense Fund of Kentucky, Inc. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. This case was tried at Columbia, Kentucky, on 29 April 1986, and briefs were timely filed by 3 June 1986. The charge was filed on 30 December 19851 and a complaint issued 6 February 1986. The ultimate issue to be determined is whether Respondent violated Section 8(a)(1) of the Na- tional Labor Relations Act (the Act) by discharging the 11 alleged discriminatees, Greg Brock, Timothy Curry, Mark Harris, Raymond Huckaby, Ricky Huckaby, 1 All dates are in 1985 unless otherwise indicated. Rodney Huckaby, Godfrey Jackson, Brad Keltner, Ricky Keltner, David Pendleton, and Mike Withers on 2 August because they engaged in concerted protected ac- tivity, to wit: complaining to Respondent regarding con- ditions of employment. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed on behalf of the General Counsel, Respond- ent, and Charging Party, I make the following FINDINGS OF FACT 1. JURISDICTION Waggener-Walker Newspapers, Inc. (Respondent) prints and publishes newspapers, magazines, and other matter. It is stipulated and I fmd that Respondent is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. BACKGROUND As a result of matters not pertinent to this proceeding, Edward Waggener gave up operational control of Re- spondent on 1 January, and hired Richard Evans, a re- tired executive, previously employed by an unrelated entity, to direct Respondent's operations as general man- ager. The alleged discriminatees were all employed in the pressroom, full time or part-time, in producing the Respondent's printed material. Brenda Huckaby, former wife of Ricky, and sister-in-law of Raymond and Rodney Huckaby, all three alleged discriminatees, had worked for Respondent since 1974, and was job shop supervisor at the time in issue. Phyllis Curry, the mother of alleged discriminatee Timothy Curry, was employed by Re- spondent since 1975 and at the time in issue was vice president of operations and Brenda Huckaby's supervi- sor. About the middle of June, because of alleged problems with the night-shift pressroom employees, Evans ap- pointed Wayne Smith as pressroom night-shift supervi- sor. Smith, who at that time had been employed by Re- spondent for 6 or 8 months first as a driver and then as a maintenance man, testified that his area of primary re- sponsibility was the part-time "stuffer" employees who were all high school students from 16 to 18 years of age, that he was "in charge" of the press crew as a "middle- man to go back and forth between Mr. Evans and them.... I was down there just to-as the supervisor, to make sure-let him know what was going on." Though Evans testified that Smith reported to Mrs. Curry, Smith testified that he reported directly to Evans, and consulted Mrs. Curry only about anything needed for the pressroom, because she had previously handled that fimction. Evans prepared a manual of work rules, which includ- ed the following problem-solving procedure: Step 1: See your immediate supervisor first. He or she is the person who directs your work assign- ments and is responsible to help you in getting your job done. Your supervisor is in the best position to help you. Your supervisor will treat your problem 282 NLRB No. 70 WAGGENER-WALKER NEWSPAPERS 455 with dignity and respect and,hus author} teastake action to correct your problem in most cases. Step 2; If for ANY reason you fail to get satisfac- tion from your supervisor, or if you believe that you can't discuss the matter with your supervisor for whatever reason, take the problem directly to the General Manager. He will help you with any matter you take to him. While you should not expect him to undermine your supervisor, you can expect he will objectively investigate the matter and do his level best to sec a fair solution is brought about. Of course, the General Manager is the final authority responsible for administering the compa- ny's policy of treating employees fairly. Remember, this problem solving procedure is available for your use without fear of retaliation or retribution. It cannot function properly, however, without your participation. We cannot, settle or adjust a misunderstanding unless you tell us about it. We urge you not to nurse a complaint in silence or only grouse about it with fellow employees. It is better to raise the problem into the open and get it solved so that we can all get on with the job at hand of publishing'the best papers we know how. We assure you that, your use of the problem proce- dure will never be held against you.' Evans intended the use of the pronoun "you" to refer ex- clusively to the singular, and never to the plural. He tes- tified that he "had never, had never met with a group and that if they had a problem with their supervisor or their working conditions, that I would meet them on an individual basis ...." All. ALLEGED UNLAWFUL LABOR PRACTICES In addition to continuing problems with malfunction- ing air conditioning in the pressroom, conflicts arose be- tween the other employees and Smith. The pressroom employees had apparently brought up these concerns with Curry, and as she left work at 7 or 8 p.m. on 1 August a group asked her whether she,had had any suc- cess in getting operational air conditioning or doing something about the conflicts, with Smith. Curry told the pressroom employees to report the next day earlier than their normal 4 p.m., and that she would arrange a meet- ing with Evans at which they could discuss their com- plaints. On 2 August Curry told Evans during the regular staff meeting of the desired employee meeting. Evans re- sponded that, as noted in the quotation above, he would meet with the employees singly but not as a group. When Curry reported this to the employees they asked her to point out to Evans that their complaints were common to all, so that they desired to all meet with Evans together. When she did so, Evans again refused, stating that it would be too much like a union meeting. The pressroom employees'then asked Curry whether, bg- cause Evans did not want them all to come to his office together, he would meet with them all together in the pressroom. Again, Evans refused a joint meeting. The employees then decided to all go to Evans' office anyway, and passing Curry's work station asked her to -join, them. "There js ,some question whether Evans, in dis- gust, fmally agreed to a joint meeting or whether the employees all just walked into his office but the point is irrelevant. The relevant and disputed issue is what tran- spired in Evans' office, and thereafter. Evans testified that after the 11 pressroom employees and Curry had rushed into his small office, Raymond Huckaby said that they wanted something done with Smith, and the air conditioning fixed, "or" and Evans asked, "Or what?" and Raymond Huckaby answered, "Or we quit." Evans testified that he then said, "Well, I guess, whatever." Raymond Huckaby then said that they wanted their paychecks, and Evans responded that they would get them on their normal payday. Raymond Huckaby said, "Well then, we will get an attorney" and Evans responded, "Well, fine, you know there's one next door and there's several uptown" and he "pointed to the door and they left." Evans prepared a written memorandum shortly after the meeting, used in the later unemployment board hear- ing, in which he stated that Raymond Huckaby had said, "We want Wayne Smith, the Supervisor, removed and the air conditioning fixed or" at that Evans said, "or what." Raymond Huckaby said "or we quit." At that point Evans said, "O.K., I accept, you've quit." The memorandum by Evans continues with the state- ments: In conclusion, the gentlemen walked off their jobs, quit, without notice knowing that we were prepar- ing for our busiest week of the year. Though Curry was described as being present at the meeting, Evans' memorandum concludes: After the aforedescribed meetings [sic], Richard Evans proceeded to Phyllis Curry's office to bring her up to date on what had happened. Curry and Raymond, Ricky, and Rodney Huckaby each testified that 'it was Ricky, not Raymond Huckaby who spoke for the group, that he said, "We just need some air conditioners and we need something done about Wayne Smith" and "At that point Mr. Evans interjected and said, `I am not going -to do anything about Wayne Smith and if you don't like it, there's the door, walk."'2 Evans testified that after the employees left he called Ed Waggener on the intercom and told him that the em- ployees had come to his office as a group, against his wishes, and had left the office area but that Evans did not know "whether they had quit, what, they were 2 This was the testimony of Curry. Raymond Huckaby testified that Ricky "told him that he had a problem with Wayne Smith and a problem with the air conditioning and Mr. Evans just more or less stopped him right then and said he wasn't doing anything about Wayne and if we didn't like it there was the door." Ricky Huckaby testified that Evans had responded that "there wasn't nothing going to be done with Wayne Smith and if we didn't like what was going on , there was the door." Rodney Huckaby testified that Evans responded that "he'd put Wayne down there for a reason and he told us that if we didn't like what was going on, there was the door." 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing, but they had all left the premises."3 Waggener told him not to be concerned, that Waggener had had that problem with the employees once before. This con- versation was not verified by Waggener who, though questioned, was unable to recall whether he had been called by Evans or not. Waggener did testify that he had heard a large group going upstairs to the office area, and that "After they went upstairs, Phyllis [Curry] came back by the office and told me that the press crew had walked out" after Evans had not met their demands. Curry testified that she did not have any conversation with Waggener, that she saw him only as she gave him a copy of her resigna- tion later that evening, as later discussed, and that she did not tell him that the employees had walked out. The pressroom employees did not leave the business premises after leaving Evans' office, but alleging not to know whether they had been fired, went to the press- room area. Curry testified that a few minutes after re- turning to work Evans came in and told her that the pressroom employees were "all fired, they've worked their last day here, they'll never work here again, I'll go up to Louisville and get some workers to replace them." She asked whether she was included, and Evans re- sponded that it was up to her, to which she replied that she would resign. Curry then went down to the press- room and told the employees who were there, or outside the building near their cars, that Evans had fired them and that she was resigning. She then returned to the office area, typed a letter of resignation, and gave copies to Waggener and Evans. Evans' testimony, contrary to that of Curry, is that after speaking with Waggener he left his office. Seeing Curry, and that she was upset, he went with her to her office, where he commented that in relation to the press- room employees, "it doesn't make good sense that people, in mass like that, over something just walk off their job ...." She responded that they had not, over the years, been treated very nicely, and Evans noted he had not been aware of that. Curry said that she felt that she, too, had to leave her employment, and Evans cau- tioned her to give it a lot of thought first. Evans testified that he then entered the pressroom, where he observed the pressroom employees leaving the building. He re- turned to his office, where he called a staff meeting, spoke with Waggener, and started searching for replace- ment pressroom workers. In all his testimony Evans denies ever telling Curry that the pressroom employees were fired or that he would go to Louisville to find re- placements. Brenda Huckaby, however, testified that she overheard the conversation while she was in her office (which was separted only by a thin panel that did not extend to the ceiling) and that Evans had said that the employees were fired and that he would replace them from Louisville.4 a When Evans referred to "the premises" he meant his office and the general office area of the plant. 4 Brenda Huckaby later resigned , and still later filed for unemployment benefits on the grounds of having been effectively fired because the other people she worked with had been terminated The balance of Waggener's testimony is also of inter- est. He testified that after the disputed appearance of Curry to tell him that the pressroom employees had quit, he does not recall hearing from Evans, but waited to see what Evans would do and did not see Evans until about 5:30 p.m. Waggener hedged on this later, testifying, "Unless he called me and confirmed what [Curry] said, I don't remember whether he did or not." He also testified that several of the composition employees left with the pressroom employees, though they neither quit nor were fired, and that it was a frightening situation. Joan Keltner, Respondent's comptroller, verified that Smith was hired specifically to supervise the high school part-time stuffers, and that on 2 August Evans had con- sistently held the position that he would meet with em- ployees singly but not in a group. Rebecca Pedigo, Re- spondent's director of sales, testified that Smith had been hired to oversee conditions and that had led to an in- crease in production costs. She also confirmed Evans' re- fusal to meet with more than a single employee at a time, and that some time after the meeting Evans told her that Curry had resigned and that the press room employees had "walked out." She was unable to tell whether the employees had quit or were fired, and assumed that they had merely absented themselves from the plant. Additional evidence was presented by the parties con- cerning discussions of rehiring Curry and Brenda Huck- aby, and other matters, all of which I find to be irrele- vant to the issues except for the fact that an exceptional- ly large and important amount of work was scheduled for printing on the night and week of 2 August. IV. ANALYSIS AND DISCUSSION There can be no doubt that the questions of air condi- tioning the pressroom and the, quality of Smith's supervi- sion constitute issues of the conditions of employment, and that the joint action of the pressroom employees was concerted. Section 7 of the Act guarantees the rights of employees to engage in concerted activities for mutual aid or protection, and Section 8(a)(1) declares it to be, a prohibited unfair labor practice for an employer to inter- fere with, restrain, or coerce employees in the exercise of those rights. The issue of this case is simply whether the employees voluntarily resigned when Respondent re- fused to consider their concerted complaint, or whether the employees were summarily fired for making a con- certed , complaint. This question in turn rests on the credibility of witnesses whose testimony is mutually ex- clusive. I credit the testimony of Curry and of the Huckabys, that the pressroom employees were summarily dis- charged on making a concerted complaint. I do not credit Evans' testimony that the employees resigned when he refused to hear complaints about a supervisor. In the first instance, I do not accept that Evans could have deceived himself into thinking that he was support- ing some concept of maintaining chain of command by refusing to even hear complaints about Smith's activities, as he would have us believe. There is no question that Smith was not a supervisor within any meaning of the term. Smith certainly did not fit within that term as de- WAGGENER-WALKER NEWSPAPERS 457 fined by Section 2(11). Contrary to the impression sought to be conveyed by Evans, Smith was admittedly no more than a clerk, whose function was to report any night-shift-misbehavior by the younger part-time employ- ees. Second, I-do not credit Evans' testimony that Wag- gener told him he previously had encountered a similar experience with the pressroom employees walking out. Waggener did not affirm that he ever made such state- ment and, though he later amended his testimony that the conversation "might have" occurred earlier, first tes- tified that he had no conversation with Evans until about 5:30 p.m., which I would believe was the conversation in which Evans finally told him that they had to get re- placement pressroom workers quickly. I believe the story of the first conversation was fabricated to support the theory that Evans had not discharged the employees but that they had quit or walked off the job. Third, I do not credit Evans' testimony that he did no more than accept the employees' offer to quit if some- thing were not done. His testimony is of an immediate acceptance, but because Evans was aware of the heavy and important night's and week's work that lay ahead, and even if he were not the mature, experienced execu- tive that he appears to be, he could not have been so foolish as to help push the employees out the door with- out making some attempt to delay any, action until quiet- er times. Fourth, I believe that Evans' admitted refusal to meet with more than a single employee at a time was, as stated to Curry, a worry that joint meetings were too much like union meetings, revealing an animus toward organization of employees for self-protection. I believe that Evans' reaction to being forced into such a meeting, as occurred here, would and did lead him to a decision to immediately` discharge all involved employees and re- place them from distant labor sources even though seri- ous disruption of operations would result. Finally, I do not credit Evans' testimony generally be- cause I find it contrary to other of his own statements. For example, his memorandum stated that Curry had to be notified of the results of the meeting, but his testimo- ny was that she was at the meeting; and, he testified before the unemployment board that when the employ- ees left his office after the meeting on 2 August he still considered them to be in the employment of the Compa- ny, but he testified at the hearing that the employees not only quit but demanded immediate payment of salary before leaving. In reaching these findings I recognize that the testimo- ny credited is all from persons having an adverse interest in Respondent. On the other hand, all of those witnesses whose testimony is not credited have an equal or greater interest in favor of Respondent. I also recognize that of the 12 individuals at the disputed meeting, other than Evans, the General Counsel has only called 4. However, the testimony of the other eight would presumably merely have been repetitions. Finally, I realize that no motive was proven for Respondent to follow this course of action, and indeed some loss can be assumed, but while motive proved may be an evidentiary gain, failure to prove a motive is not an evidentiary loss. CONCLUSIONS OF LAW By discriminatorily discharging Greg Brock, Timothy Curry, Mark Harris, Raymond Huckaby , Ricky Huck- aby, Rodney Huckaby, Godfrey Jackson, Brad Keltner, Ricky Keltner, David Pendleton, and Mike Withers on 2 August 1985, because they engaged in concerted and pro- tected activity, Waggener-Walker Newspapers, Inc. en- gaged in unfair labor practices affecting commerce within the meaning of -Section 8(a)(1) and ' Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent, has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act, Respondent having unlawfully discharged Greg Brock, Timothy Curry, Mark Harris, Raymond Huck- aby, Ricky Huckaby, Rodney Huckaby, Godfrey Jack- son, Brad Keltner, Ricky Keltner, David Pendleton, and Mike Withers, I find it necessary to order it to offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions without prejudice to ' their seniority and other rights and privileges, and to make them whole for any loss of earnings that they may have suffered by reason of the discrimination against them by'payment to them of a sum of money equal to that which they nor- mally would have earned from the date of their dis- charge to the date of a bona fide offer of reinstatement, less net interim earnings during such period. Backpay shall be computed on a quarterly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in accordance with Florida Steel Corp., 231 NLRB 657 (1977).5 Moreover, consistent with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respondent be required to expunge from its records any references to the unlaw- ful discharge of these employees, and provide written notice to them of such action, and inform them that Re- spondent's unlawful conduct will not be used as a basis for future disciplinary action against them. The General Counsel has requested a visitatorial clause authorizing the Board to engage, in discovery under the Federal Rules of Civil Procedure. Under the circumstances of this case, however, I find no grounds for the imposition of such requirement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- s See generally Isis Plumbing Cio., 138 NLRB 716 (1962). ' If no exceptions are filed as provided by Sec. 102:46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER APPENDIX The Respondent, Waggener-Walker Newspapers, Inc., Columbia, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise disciplining employees for engaging in concerted activity protected under the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Greg Brock, Timothy Curry, Mark Harris, Raymond Huckaby, Ricky Huckaby, Rodney Huckaby, Godfrey Jackson, Brad Keltner, Ricky Keltner, David Pendleton, and Mike Withers immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without preju- dice to their seniority or any other rights or privileges previously .enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Columbia, Kentucky, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered'by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. NoTIcE To EMPLOYEES POSTED BY ORDER OP THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has ` found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively , through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in concerted activity protected under the Act: WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the 'rights guaranteed you by Section 7 of the Act. WE WILL offer Greg Brock , Timothy Curry, Mark Harris, Raymond Huckaby, Ricky Huckaby, Rodney Huckaby, Godfrey Jackson, Brad Keltner, Ricky Keltner, David Pendleton, and Mike Withers immediate and full reinstatement to their former ' jobs or, if their jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earn- ings, plus interest. WE WILL notify them that we have removed from our files any reference to their discharges and that their , dis- charges will not be used against them in any way. WAGGENER-WALKER NEWSPAPERS ' If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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."