Phoenix Newspapers, Inc.

PHOENIX NEWSPAPERS 47 Phoenix Newspapers , Inc. and Phoenix Newspapers Guild, Local 237, the Newspaper Guild, AFL- CIO-CLC and New Times, Inc. Cases 28-CA- 5723, 28-CA-5796, 28-CA-5904, and 28-CA- 5904-2 May 23, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 6, 1981, Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The Respondent, the General Counsel, the Charg- ing Party Phoenix Newspapers Guild, Local 237, The Newspaper Guild, AFL-CIO-CLC (the Union), and the Charging Party New Times, Inc. (New Times)' filed exceptions and supporting briefs The Respondent, the General Counsel, and the Union filed answering briefs. Additionally, the American Newspaper Publishers Association filed an amicus curiae brief 2 By joint motion to withdraw charges dated Sep- tember 28, 1983, the Union, alleged discriminatee Bonnie Bartak, and the Respondent jointly moved that the Board enter an order granting the with- drawal of that portion of the charges pending before the Board in Cases 28-CA-5723 and 28- CA-5796 that "relate to" Bartak because she had entered into a settlement agreement with the Re- spondent and no longer desired to pursue the charges concerning her.3 The General Counsel did not oppose the motion. By Order dated November 2, 1983, the Board granted the joint motion to withdraw charges, and dismissed the charges inso- far as they related to Bartak. Thereafter, the Board, on March 12, 1984, issued a notice to parties of opportunity to submit state- ments of position In this regard, on May 31, 1983, the United States Supreme Court had issued its opinion in Bill Johnson's Restaurants v. NLRB, 461 U.S 731, in which the Court addressed the issue of alleged unfair labor practices based on the filing of state court lawsuits.4 Because the issue considered i The Union and New Times have requested oral argument These re- quests are denied as the record, the exceptions, the briefs, and the posi- tion statements adequately present the issues and the positions of the par- ties 2 On February 12, 1982, the American Newspaper Publishers Associa- tion (ANPA) filed a motion for leave to intervene as amicus curiae On February 16, the Union filed a motion in opposition thereto, and, on Feb- ruary 18, New Times also filed a motion in opposition thereto The motion to intervene as amicus curiae is granted a In their motion, the parties expressly stated that withdrawal was re- quested with the reservation that the evidence in Bartak's case could still be considered by the Board to the extent that it may be found relevant in connection with the remaining portions of the pending charges " At the Court's direction, Bill Johnson's was remanded to the Board to determine whether the filing and prosecution of the employer's state by the Court in Bill Johnson's was also raised in this case, the Board afforded the parties an oppor- tunity to submit statements of position on the issue in light of the Supreme Court's opinion. Addition- ally, the Board requested the parties to advise the Board of the status of the state court lawsuit in- volved in this case. Thereafter, the General Counsel, the Union, New Times, and the Respondent filed statements of position 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, briefs, and state- ments of position and has decided to affirm the judge's rulings,5 findings,6 and conclusions only to the extent consistent with this Decision and Order. 1. The judge found that the Respondent violated Section 8(a)(1) of the Act by discharging Econom- ic News Editor Mayne, an admitted supervisor, on January 15, 1980, because of his failure to partici- pate or cooperate in the Respondent's unlawful scheme to discipline and discharge employee Bartak 7 Subsequent to the issuance of the judge's court lawsuit violated the Act by examining the lawsuit in terms of the principles enunciated by the Court in its opinion In its supplemental de- cision reported at 290 NLRB 29 (1988), the Board concluded that the employer violated Sec 8(a)(4) and (1) by pursuing the first count of its lawsuit, referred to as the business interference claims With respect to the second count of the employer's lawsuit involving a libel claim, the Board (Chairman Stephens dissenting) found no violation of the Act s In his decision, the judge denied the Respondent's motion to dismiss the allegations that the Respondent violated Sec 8(a)(1) of the Act by disciplining and discharging employee Bartak because she filed charges with the Equal Employment Opportunity Commission (EEOC) and by discharging Economic News Editor Mayne because he refused to partici- pate or cooperate with the Respondent's efforts to discriminate against Bartak In light of the Board's grant of the parties' motion to withdraw Bartak's charges, we need not pass on the judge's ruling as it concerns Bartak However, we affirm his ruling as to Mayne In so doing, we rely on the judge's finding that the doctrine of collateral estoppel does not preclude litigation of these allegations before the Board because the deci- sion of the Federal district court in Equal Employment Opportunity Com- mission v Phoenix Newspapers, Inc, No CIV 80-404 PHX VAC (D Ariz , Sept 4, 1980), denying the EEOC's petition for preliminary relief, was not a final adjudication on the merits of the issues before the Board We therefore find it unnecessary to pass on the judge's alternative ration- ale that under Sec 10(a) of the Act the doctrine of collateral estoppel is inapplicable to Board proceedings as a matter of law 6 The Respondent, the General Counsel, the Union, and New Times have excepted to some of the judge's credibility findings The Board's es- tablished policy is not to overrule an administrative law judge's credibil- ity 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 In sec I,A,1,(g) of his decision, the judge referred to City Editor Arm- strong as managing editor This error is insufficient to affect the decision 7 During the hearing, counsel for the Respondent moved to dismiss this allegation on the basis that Mayne and the Respondent had reached a purported settlement whereby, inter alia, Mayne's discharge had been converted to a resignation The Respondent's counsel also asserted that Mayne was not due any backpay and did not desire reinstatement, and that he no longer wanted to participate in the Board proceedings We Continued 294 NLRB No. 3 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD decision, the Board reaffirmed the well-established principle that an employer violates the Act by dis- charging a supervisor for refusing to commit an unfair labor practice. See Parker-Robb Chevrolet, 262 NLRB 402 (1982), enfd. 711 F.2d 383 (D.C. Cir 1983). In adopting the judge's finding that Mayne's discharge violated the Act, it is clear from the sequence of events as found by the judge that Mayne was discharged for failing to cooperate with the Respondent's unlawful scheme to manu- facture a case against Bartak so as to justify her discharge.8 In this respect, this case falls within one of the exceptions enumerated in Parker-Robb to the general principle that supervisory discharges are not violative of'the Act.9 See Country Boy Markets, 283 NLRB 122 fn. 2 (1987), enfd. sub nom. Delling v. NLRB, 869 F.2d 1397 (10th Cir. 1989). 2. On April 1, 1980, the -Respondent filed a law- suit for libel, conspiracy, and tortious interference with business relationships against the Union; its of- ficers, including John R. Lavelle, Carol J. Sowers, Bonnie E. Bartak, and Victor A. Vogel II (all em- ployees of the Respondent); and International Union Representative Willard Hatch. i 0 In further- find that the judge properly denied this motion and conclude that it will not effectuate the purposes and policies of the Act to honor this purport- ed settlement Significantly lacking is any indication in the record that this private arrangement takes into account the employee rights that are the basis of the particular violation alleged or that the arrangement other- wise meets the various criteria relevant to consideration of such a motion See, e g, Independent Stave Co, 287 NLRB 740 (1987) With re- spect to the Respondent 's assertion that Mayne is not due any backpay and does not desire reinstatement , we follow our normal practice and leave these matters to be resolved during the compliance stage Member Cracraft notes that the Respondent did not file an exception to the judge 's failure to defer to the alleged private settlement agreement concerning Mayne She therefore expresses no view on this matter Member Cracraft joins her colleagues in leaving issues of reinstatement and backpay for compliance 8 As noted , above at in 3, the parties, in settling the charges concern- ing Bartak, expressly reserved consideration of the evidence on these charges as its relates to the remaining allegations in this proceeding The credited evidence establishes that the Respondent placed Bartak on pro- bation , extended her probation , reassigned her to night police beat report- er, and discharged her, all because of her protected concerted activities Although those actions are no longer before us as alleged violations of Sec 8(a)(1), we adopt the judge's findings that the Respondent 's treat- ment of Bartak was unlawful insofar as those findings form a necessary part of his conclusion that Supervisor Mayne's discharge violated the Act See Meyers industries, 281 NLRB 882 (1986) (Meyers II), enfd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) We find it unneces- sary to decide whether the Respondent 's actions against Bartak were un- lawful on the additional ground that they were motivated by her union activities 9 Thus, we do not rely on the cases cited at fn 63 of the judge's deci- sion , which are distinguishable . from the violation found here and were specifically overruled by Parker-Robb, supra, at fn 20, to the extent they were inconsistent with that decision 10 The lawsuit, styled Phoenix Newspapers, Inc v New Times, Inc, et a!, No C408065, was filed in the Superior Court of the State of' rizona, in and for the county of Maricopa The suit was also filed against another local news organization , the New Times and its publisher, editor, and managing editor With respect to the New Times defendants , we agree with the judge's alternative finding that any remedies to which they might be entitled as a result of the Respondent's suit against them are not to be found under the National Labor Relations Act On that ground, we ance of its suit, the Respondent took depositions of Hatch, Lavelle,,and Bartak and former union presi- dent, Jack Swanson, and subpoenaed certain records from the latter as well. In October 1982 the superior court granted summary judgment in favor of the union defendants and dismissed the Respondent's complaint against them without af- fecting the union defendants' pending counter- claims Thereafter, in November 1982, the Re- spondent and the union defendants effectively set- tled the suit by the Respondent's agreement to forgo appeal of the grant of summary judgment and by the union defendants' agreeing to drop their counterclaims. The suit, which sought, inter alia, general dam- ages and $10 million in punitive damages from the union defendants, was based, in pertinent part, on a report in the Union's own internal newsletter, a bulletin titled "Update," describing the basis for an unfair labor practice charge of unlawful surveil- lance of, and retaliation against, union supporters, which the Union had recently filed against the Re- spondent. That charge, as the Union had explained in its transmittal letter to the regional office, was based in part on alleged evidence that the Re- spondent had made up a "hit list" of union activists to be targeted for discharge or other retaliatory ac- tions and that the Respondent had tapped the tele- phone of at least one union officer. The notice in "Update" informed bargaining unit members about the charge and the basis for it and advised them of an upcoming meeting in which the charge would be discussed. The notice also requested any mem- bers who thought their own rights had been violat- ed by the Respondent to discuss the matter with a union representative. This bulletin was distributed on February 22, 1980, through the usual channels to the members-by deposit in their mailboxes at the Respondent's main office for those who worked at that location, by mailing to the homes of those who worked in suburban offices, and by posting on employee bulletin boards in the news- rooms where the unit employees worked. According to the Respondent's publisher, Tully, the Respondent filed its lawsuit because the unfair labor practice charge filed by the Union did not itself specifically allege that the Respondent had engaged in wiretapping, and because the Respond- ent believed that the "Update" article, indicating that the Respondent would be or had been charged by the Union with wiretapping, impugned the credibility of the Respondent's newspaper in the eyes of the community and also had the potential adopt the judge's dismissal of the 8 (a)(1) allegations with respect to the New Times PHOENIX NEWSPAPERS effect of "drying up" the Respondent's confidential sources Considering the merits of the suit to be irrelevant to this proceeding, the judge found that the suit had been filed in good faith based on the above-de- scribed testimony of Tully According to the judge's analysis, this finding of good faith estab- lished both a reasonable basis for the Respondent's filing the suit and a lack of retaliatory motive on the Respondent's part The judge, therefore, con- cluded that the Respondent did not violate Section 8(a)(1) of the Act by filing its suit against the union defendants. We do not adopt the judge's analysis and conclusion because we find that they are con- trary to Bill Johnson's Restaurants v. NLRB,11 which issued subsequent'to the judge's decision. In Bill Johnson's the Supreme Court held that while it is an enjoinable unfair labor practice to prosecute a baseless lawsuit with a retaliatory intent, the filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if the lawsuit was motivated by a desire to retaliate against employees who had exer- cised their rights under the Act. The Court stated that if a pending state lawsuit has a "reasonable basis" in law or fact, the Board may not enjoin the suit, but must stay its unfair labor practice proceed- ing until the state court suit is resolved. 12 If the re- spondent prevails in state court, i.e., if the state court finds merit in the suit, then, the Court held, the respondent should also prevail before the Board.13 Motive in such a case would therefore be irrelevant to a determination of whether the re- spondent had committed an unfair labor practice. The Court, however, , further stated that where the state court judgment goes against the respond- ent, or the suit is "withdrawn or is otherwise shown to be without merit," the Board may pro- ceed to resolve the unfair labor practice case.14 In resolving the case in those circumstances, the Board may consider the state court lawsuit's lack of merit as one factor in deciding whether the suit was motivated by retaliatory purposes.' s The factual context before us is somewhat differ- ent from the one faced by the Supreme Court in Bill Johnson's or by,the judge below, because when the judge considered this case the libel suit against the union defendants was still pending in state court. Since then, however, summary judgment in favor of the union defendants has been entered and the Respondent has waived any right to appeal that 11 461 U S, 731 (1983) 12 461 U S at 744-746 461 U S at 747 14 Id 15 Id 49 judgment. Thus, we need not decide here whether a pending lawsuit constitutes an unfair labor prac- tice. As the Court stated in Bill Johnson's at 747, in circumstances in which the employer does not pre- vail in the state court, once "the employer has had its day in court, the interest of the State in provid- ing a forum for its citizens has been vindicated, and the Board may then proceed to adjudicate the . ., . unfair labor practice case." Thus, under the analy- sis 'of Bill Johnson's, we direct our attention to whether the two prerequisites to finding a violation of Section 8(a)(l)-a meritless suit and a retaliatory motive-are present. We find that both requirements of Bill Johnson's are satisfied here First, the summary judgment in favor of the union defendants, which was not dis- turbed by the parties' subsequent November 1982 settlement, constituted an adjudication establishing that the suit involving the union defendants lacked a reasonable basis in law or fact In this regard, we note that the Supreme Court stated at 461 U.S. at 749 fn. 15 that, although the Board is not bound in a res judi- cata sense by such a state-court ruling, we see no reason why the state court's own judgment on the question whether the lawsuit presents triable factual issues should not be entitled to deference. In any event, such a state-court de- cision should not be disregarded without a cogent explanation for doing so. Thus, although we are cognizant of the fact that the Respondent here agreed to forgo any right to appeal the summary judgment in exchange for the Union's agreement to forgo any counterclaims, by the same token, the Respondent has presented no cogent explanation why the state court's determina- tion on the existence of triable issues should not be given deference, and, accordingly, we accept the court's disposition of that issue.16 Second, in pursuing its meritless suit, the Re- spondent admittedly sought large punitive damages from the Union and from employee-members solely because, as union officers, those employees were 16 Cf, Bill Johnson's, 290 NLRB 29 (1988) Chairman Stephens agrees, for the reasons stated above, that the suit lacked a reasonable basis in fact and law, and under his separate opinion concurring and dissenting in Bill Johnson's, supra, he reaches the same conclusion on the merits as well As the discussion below regarding the Respondent's retaliatory motive makes clear, the Union and its officers were not acting maliciously, i e , with knowledge of the falsity of their statements or with reckless disre- gard of the truth, when they communicated with their members about the unfair labor practice charge, they had filed with the Board and what they believed was the factual basis for that charge Hence, under the standard of Linn v Plant Guard Workers, 383 U S 53, 61-65 (1966), which states the applicable Federal standard for libel lawsuits filed against unions and their officers over matters pertaining to labor disputes, the Respondent's lawsuit clearly lacked merit See also Letter Carriers Y Austin, 418 U S 264, 272-273 (1974) 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD responsible for written communications directed to fellow employees specifically concerning unfair labor practices' that they believed, in good faith, had been committed against employees. 17 The law- suit, therefore, based on that conduct, was in "re- taliation" for that conduct. In this regard, the Union's written communication is concerted con- duct that is directly related to the employees' terms and conditions of employment. As such, it is pro- tected under Section 7 of the Act in the absence of some aspect that would forfeit that protection, and we find none Thus, the "Update" article discussing the charges was contained in an internal organ di- rected at the Union's own membership and the em- ployees the Union represents. Moreover, even if the article failed to distinguish precisely between, on the one hand, the contents of the actual charge and, on the other, the Union's stated basis for the charge or in some other manner might be said to reflect bias or hyperbole, it cannot be said that the article was so reckless or maliciously untrue as to lose the Act's protection. 18 In our view then, the good faith or sincerity of Tully's asserted reasons for filing the suit cannot alter the essential fact that the lawsuit and the sizable damages sought were unequivocally aimed directly at protected concert- ed activity. 19 Under these circumstances and particularly in light of the judgment rendered by the state court, we find that the Respondent's motivation in filing the suit was retaliatory and thus meets the test posed by the Supreme Court in Bill Johnson 1S.20 17 Although the Regional Director ultimately did not issue a complaint on the relevant portion of the Union 's surveillance allegation , it is clear that the evidence possessed by the Union , as more fully detailed in the judge's decision , gave it a good-faith basis for filing its charge and , a.for- tiori, for discussing with its members the basis for filing the charge 18 See , e g , Professional Porter & Window Cleaning' Co, 263 NLRB 136, 149 (1982), enfd mem sub nom NLRB v Propoco, Inc, 742 F 2d 1438 (2d Cir 1983) (employee letter to the employer 's main customer that at- tacked the quality of service the employer performed for that customer was protected activity), Allied Aviation Service Co of New Jersey, Inc , 248 NLRB 229 ( 1980) (dissemination to the employer's customers letters rais- ing questions about the safety of the employer's maintenance procedures was protected activity), and Richboro Community Mental Health Council, 242 NLRB 1267, 1268 (1979 ) (employee's written criticism of employer's operations was protected activity) See also Mitchell Manuals, Inc, 280 NLRB 230 ( 1986), and Emarco, Inc, 284 NLRB 832 (1987 ) We also note in this regard that the state court specifically found "the publication of the Update Guild members to be absolutely privileged " 19 See generally NLRB v Burnup & Sims, 379 U S 21 ( 1964) (good- faith but ' mistaken belief as to the employee's misconduct not defense to 8(a)(1) allegation) In this regard we note that in many cases involving employer sanctions against arguably protected activity that is alleged to be libelous or disloyal , the employers raise sincere and quite tenable grounds for the argument that their actions were not motivated by the mere fact that employees were engaged in protected activities but rather were induced by alarm at the injurious effects of the protected activity The Board in these cases did not take issue with the employer's asserted motives but nonetheless found the alleged violations See Bettcher Mfg Corp , 76 NLRB 526 ( 1948), and cases cited above at fn 18 20 See American Pacific Concrete Pipe, 292 NLRB 1264, 1265 (1989) (circumstantial evidence sufficient to establish a retaliatory motive)' Accordingly, we conclude that the Respondent, by filing and pursuing the lawsuit against the union defendants, violated Section 8(a)(1) of the Act 21 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 3 and 5. "3. By filing and pursuing its lawsuit in the Su- perior Court of the State of Arizona, seeking gen- eral and punitive damages against the union de- fendants for the February 22, 1980 `Update' article that publicized the Union's pending unfair labor practice charge, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. "5. The Respondent has not violated the Act in any other manner alleged in the consolidated com- plaints." AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. 22 2 i Member Cracraft agrees with the judge that the Respondent did not violate the Act by filing the state court lawsuit She finds that the suit was not filed for a retaliatory motive and does not reach the question of whether the suit lacked merit As the majority recognizes, the judge found , based on the credited tes- timony of Publisher Tully, that the Respondent filed the lawsuit because the unfair labor practice charge in Case 28-CA-5723 did not specifically allege that the Respondent had engaged in wiretapping and because the Respondent believed that the published articles, indicating that the Re- spondent would be or had been charged by the Union with wiretapping, impugned the credibility of the Respondent's newspaper in the eyes of the community and also could have an adverse effect on the Respond- ent's confidential sources of news Relying on Tully's testimony, the judge concluded that the Respondent "filed the lawsuit in good faith, without an intent to retaliate against any of the defendants because they engaged in activity protected by the Act " Member Cracraft regards the judge's credibility resolution as controlling and as the factor that distin- guishes the instant case from American Pacific Concrete Pipe, supra at fn 20 Her colleagues appear to equate the filing of a lawsuit as a result of protected activity with filing of a lawsuit in retaliation for protected ac- tivity The Respondent's filing of the lawsuit followed the Union's pro- tected activity and no doubt might not have occurred had the protected activity not occurred because there might not have been any references to wiretapping Thus, the lawsuit was "a result of," in layman 's terminol- ogy, the protected activity, but not , in a legal sense, in retaliation for the protected activity Finally, in Member Cracraft 's view, the cases cited in fns 18 and 19, above, merely illustrate the general rule that motive is not an essential element of most 8(a)(1) violations Based on her reading of the Supreme Court's Bill Johnson 's opinion, however, Member Cracraft does not be- lieve that this case falls within that general rule 22 Having adopted the judge's finding that the Respondent unlawfully discharged Mayne , we shall order the Respondent to take the affirmative action in the remedy section of the judge' s decision except that interest shall be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) PHOENIX NEWSPAPERS 51 Having found that the Respondent's filing and pursuit of the lawsuit against the union defendants violated the Act, we shall order the Respondent to reimburse the union defendants-the Union; its offi- cers, including John R. Lavelle, Carol J. Sowers, Bonnie E. Bartak, and Victor A. Vogel II; and International Union Representative Willard Hatch-for all legal and other expenses they in- curred in defending the Respondent's suit. See La- borers Northern California Council (Baker Co.), 275 NLRB 278 (1985). ORDER The National Labor Relations Board orders that the Respondent, Phoenix Newspapers, Inc., Phoe- nix, Arizona, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against supervisors for refusing to participate or co- operate with the Respondent in interfering with employees' protected concerted activities (b) Filing or pursuing a baseless lawsuit against the Phoenix Newspapers Guild, Local 237, the Newspaper Guild, AFL-CIO-CLC, its officers (all employees of the Respondent) and an International union representative in retaliation for employees engaging in protected concerted activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer John Mayne Jr. immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge's decision and at footnote 22 of this decision. (b) Remove from its files any reference to the unlawful discharge of John Mayne Jr. and notify him in writing that this has been done and that the discharge will not be used against him in any way. (c) In the manner set forth in the remedy section of this decision, reimburse Phoenix Newspapers Guild, Local 237, the Newspaper Guild, AFL- CIO-CLC, and its officers, John R. Lavelle, Carol J. Sowers, Bonnie E. Bartak, Victor A. Vogel II, and International Union Representative Willard Hatch, for legal and other expenses incurred in de- fense of the lawsuit styled as Phoenix Newspapers, Inc. v. New Times, Inc., et al., No. C408065, in the Superior Court of the State of Arizona, in and for the county of Maricopa (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in Phoenix, Arizona, copies of the attached notice marked "Appendix."23 Copies of the notice, on forms provided by the Re- gional Director for Region 28, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 23 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF 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 ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against supervisors for refusing to participate or cooperate with us in interfering with employees' protected concerted activities. WE WILL NOT file or maintain baseless lawsuits against the Phoenix Newspapers Guild, Local 237, the Newspaper Guild, AFL-CIO-CLC, its officers (who were our employees) and an International union representative in retaliation for our employ- ees' engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer John Mayne Jr. immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify John Mayne Jr. that we have removed from our files any reference to his unlaw- ful discharge and that the discharge will not be used against him in any way. WE WILL reimburse Phoenix Newspapers Guild, Local 237, the Newspaper Guild, AFL-CIO-CLC, and its officers, John R. Lavelle, Carol J. Sowers, Bonnie E. Bartak, Victor A. Vogel II, and Interna- tional Union Representative Willard Hatch, for legal and other expenses incurred in defense of our lawsuit styled, as Phoenix Newspapers, Inc. v. New Times, Inc., et al., No. C408065, in the Superior Court of the State of Arizona, in and for the county of Maricopa. PHOENIX NEWSPAPERS, INC. Michael J. Karlson and Jane Goldman, Esqs., for the Gen- eral Counsel Daniel F. Gruender, Marshall Anstandig, and Susan Bolton (Shimmel, Hill, Bishop & Gruender), for the Respond- ent. Richard Pattison , for the Charging Party Union. Ronald A. Lebowitz and Shirley H Frondorf, for the Charging Party New Times, Inc DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge The hearing in this consolidated proceeding, which was held on several days commencing February 23 and ending March 3, 1981, is based on unfair labor practice charges filed against Phoenix Newspapers, Inc (Respondent) by Phoenix Newspapers Guild, Local 237, the Newspaper Guild, AFL-CIO, CLC (the Union) in Cases 28-CA- 5723, 28-CA-5796, and 28-CA-5904 and by New Times, Inc. (New Times) in Case 28-CA-5904-2 The charges in these cases were filed in 1980 on February 20, April 7, May 29, and June 5, respectively, and the one in Case 28-CA-5723 was amended March 25, 1980 On various dates in 1980 the Regional Director for Region 28 of the National Labor Relations Board, on behalf of the Board's General Counsel, issued complaints in each of the cases that have been consolidated for hearing The allegations of the consolidated complaints litigated in this proceed- ing' allege in substance that Respondent violated Section ' The parties, prior to the hearing , entered into an all party settlement agreement in Cases 28-CA-5723 and 28-CA-5904 that disposed of cer- tain alleged violations of Sec 8(a)(5) and (1) of the Act that were with- drawn from the complaints in those cases 8(a)(3) and (1) of the Act by placing on probation, trans- ferring, reassigning, and terminating its employee, Bonnie Bartak, because she complained to the Equal Employ- ment Opportunity Commission about her own and other employees' terms and conditions of employment and be- cause she assisted the Union or engaged in other protect- ed concerted activity, violated Section 8(a)(1) by termi- nating its supervisor Jack Mayne Jr , because he refused to participate or cooperate in Respondent's efforts to dis- criminate against Bartak and in order to discourage its employees from supporting the Union or engaging in other protected concerted activity, and violated Section 8(a)(1) by instituting a lawsuit in state court against the Union and its officers and against New Times and its publisher, managing editor, and editor The complaint al- leges that the filing of the lawsuit tended to interfere with employees' statutory right "to seek access to the re- medial processes of the Board and employees' rights to file unfair labor practice charges with the Board" and was filed "because [said defendants] engaged in union or other concerted activities for their mutual aid or protec- tion." Respondent filed answers to the several complaints denying the commission of the alleged unfair labor prac- tices 2 On the entire record,3 from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs submitted by the parties,' I make the following FINDINGS OF FACT The Alleged Unfair Labor Practices A. Respondent's Conduct Against Bartak and Mayne 1 The evidence a. Respondent's business; Bartak and Mayne; and Bartak's alleged union and concerted activities Respondent publishes two daily newspapers in Phoe- nix, Arizona, the Arizona Republic and the Phoenix Ga- zette as well as the Arizona Weekly Gazette This case concerns primarily the Arizona Republic During the greater part of the material time the Republic's associate publisher and general manager was Darrow (Duke) Tully, its managing editor was Robert Early, its city editor was Howard Armstrong, and Armstrong' s assist- ant was Assistant City Editor Paul Schatt 2 In its answers Respondent admits that it is an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act and meets the Board's applicable jurisdictional standard and that the Union is a labor organization within the meaning of Sec 2 (5) of the Act 3 The General Counsel's unopposed motion to correct the record is granted " Respondent 's motion to strike certain portions of the General Coun- sel's brief on the ground that the brief misquotes or-misstates the record has not been considered because it is in the nature of an answering brief and as, the General Counsel notes in opposition to the motion, the Board's Rules and Regulations do not provide for such a brief Of course the parties can be assured that I have read the record and insofar as the briefs submitted by the parties inadvertently mistate the record I have not relied on the misstatements PHOENIX NEWSPAPERS Bonnie Bartak worked as a reporter in the newsroom of the Republic She began work there in 1966 as a teen reporter. While attending school she worked for the paper as a proofreader, a teen editor, and a summer intern. In March 1973, following graduation from col- lege, Bartak became a permanent employee of the paper. She worked as a teen editor for 3 months, spent 4 months as a general assignment reporter, and in the fall of 1973 was assigned to cover the minority affairs beat Bartak then worked as a superior court reporter for 2 or 3 months and in the spring of 1977 was transferred to the city hall beat At the time several other reporters also covered this beat but within 6 or 7 months Bartak was assigned to the beat-alone and continued to cover it by herself until June 1979 when she was assigned to the urban affairs beat. John Mayne Jr began to work for the Arizona Repub- lic in May 1977 as night editor Mayne had 20 years of experience as a journalist prior to his employment with the paper, including jobs as city editor of the Seattle Post Intelligence and assistant chief of the Associated Press' New England Bureau Mayne was employed by Respondent as night editor, then night city editor and chief of the Arizona Republic's legislative bureau and in September 1978 was appointed economic news editor Mayne was considered to be a part of management and was a supervisor within the meaning of the Act On February 13, 1978, pursuant to a Board-conducted representation election, the Union was certified as the ex- cluive bargaining representative of the full-time and reg- ular part-time employees employed in the Arizona Re- public's, the Phoenix Gazette's, and the Arizona Weekly Gazette's editorial departments, newsrooms, proofrooms, libraries, and photo laboratories During the material time Respondent employed about 275 unit employees. The parties were unable to agree to the terms of a col- lective-bargaining agreement and immediately after the end of the certification year a group of workers peti- tioned for a decertification election that was conducted on March 17 and 18, 1979. A majority of the voters cast their ballots for the Union, which was recertified The parties resumed negotiations that reached an impasse on or about April 23, 1979, at which point Respondent im- plemented its last bargaining proposal The parties as of the dates of the hearing in this case, February through March 1981, had not reached agreement on the terms of a collective-bargaining agreement. Bartak was one of the leading union adherents among the Respondent's employees She has been the Union's secretary since 1978 when she was elected to this posi- tion In the spring of 1979 she actively campaigned on behalf of the Union in connection with the decertifica- tion election In addition, during April 1979, starting on April 22, when the Union picketed Respondent's place of business for 6 days, Bartak walked the picket line with 40 other employees Bartak appeared on the television evening news to explain the purpose of the Union's picket line to the public On about July 1, 1979, Bartak was elected by the membership to represent the Union at the International union's convention The notice of her election was posted for several days on the Company's bulletin board 53 In January 19795 a substantial number of the Arizona Republic's women workers employed in the newsroom concluded that they were not receiving the same treat- ment as the men employed in similar positions and decid- ed to complain to management. They designated Bartak as their spokesperson Bartak arranged a meeting with Managing Editor Early for February 9 at which time Bartak, with approximately 20 other women employees, met with Early who was immediately joined by the Re- spondent's employee relations director Eldon Case Bartak spoke from an outline.6 She stated she was acting as the group's spokesperson and that the group thought that the women employed by the Republic were being discriminated against in the areas of hiring, promo- tions, and wages. She presented evidence to support these allegations and near the end of her opening state- ment informed Early and Case that there were several things management could do immediately about the women's grievances, especially in the area of hiring and promotions She stated that women should be hired in at competitive salaries regardless of their experience and that women should be considered for promotions for all positions On the subject of salaries Bartak acknowl- edged that wages were currently the subject of negotia- tions between Respondent and the Union and stated that the women felt that the "ultimate solution" to their grievance about wages was going to be a collective-bar- gaining agreement that provided for a minimum wage with all workers being paid equally for equal work Bartak ended her opening statement by warning Early and Case that if the women did not receive satisfaction they would "not stop short of turning to the federal gov- ernment for assistance " The only other employee who spoke was Carol Sowers who asked one or two questions Case asked other employees who were present to express their views. In response he was informed by an employee that Bartak was their spokesperson Early and Case, in response to Bartak's presentation, replied in effect that along with Associate Publisher Tully they had only recently assumed their current man- agerial positions and that this, plus the current contract negotiations with the Union, made it impossible to remedy certain inequities that had been in existence long before they assumed their new positions Early assured them he had never discriminated on the basis of sex and did not intend to do so in the future, but would not favor an employee because she was a women He would base his decisions about wages and promotions on a worker's competence. Bartak stated that the women expected action and warned that "if the company does not act, we will act " Bartak also stated that they were aware of the negotiating situation and although they could "act inde- pendent of that," that at that time they just wanted "to go on record as to where we stand " Early indicated he was glad that the women had ex- pressed their grievances. Bartak at this point challenged Early to treat the women equally with the men in hiring 5 All dates herein unless otherwise stated refer to 1979 6 The description of this meeting set forth here is based on the tran- script of a tape recording of the meeting 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and promotions and to pay them comparable salaries and told Early, "we want you to go to the bargaining table and represent our point of view, because we are a sepa- rate interest and we want that known." Case informed Bartak that Respondent's position, as illustrated by its wage proposal to the Union during contract negotiations, was that employees would be paid not on the basis of whether they were men or women , but on the basis of their ability to do the job and that, this was why Re- spondent was proposing a discretionary wage increase at the bargaining table in opposition to the Union's pro- posed across-the-board wage increase . Bartak stated that the women favored the Union's across-the-board wage proposal. In February, soon after Early's meeting with the women, Early expressed his unhappiness about the meet- ing to his supervisors . Early, according to the undisputed and credible testimony of Mayne,' at a regular supervi- sory meeting held in February told the supervisors that a delegation of women reporters had met with him. Early discussed this meeting for about 20 minutes and stated to the supervisors that he was personally offended that such allegations as sex discrimination and other alleged im- proper activities had been expressed , that he was offend- ed that the women had brought such complaints against him because he had fought alongside of them and stated that he felt "very upset that they would charge him with such problems." On February 23, Bartak, with about 40 other employ- ees from the Arizona Republic and Phoenix Gazette, met with Respondent 's associate publisher and general man- ager, Darrow (Duke) Tully.8 Bartak was the spokesper- son for the Republic's employees. She informed Tully that the purpose of the meeting was to talk about the employment problems of the professional women em- ployed by the Republic and Gazette and that she would make a presentation on behalf of the Republic's employ- ees and reporter Linda Kauss would do the same for the Gazette's workers. Tully, who noticed that Bartak was speaking with the assistance of an outline and that the meeting was being tape recorded, stated that he wanted a copy of Bartak's outline and the tape . Bartak agreed to comply with these requests. Bartak stated that the women who worked for the Re- public felt that they had been discriminated against in connection with hiring, promotions , and wages and went on to describe their grievances at great length . Bartak then stated that the women felt that the newspaper could begin to remedy their grievances by instituting an affirm- ative action plan, a training program for newly hired em- 7 In crediting Mayne's testimony here and in other instances in this de- cision, I have taken into account that I have discredited his testimony about his alleged conversation with Armstrong and Schatt regarding the "hit list" and the fact that he admittedly lied to management when he denied responsibility for that rumor . On the other hand, Mayne's testimo- ny about other matters, including the matter here, which I have relied on in this decision, was given in a sincere and straightforward manner and in presenting his testimony, other than in the case of hii 'conversation with Armstrong and Schatt about the so-called hit list, Mayne 's manner of tes- tifying, his demeanor , impressed me favorably. 8 The description of this meeting, which is set forth here, is based on a transcript of a tape recording of this meeting , which was offered into evi- dence by all parties. ployees, and a more formal procedure with respect to promotions so that the women could be assured that they were being considered for promotions . On the subject of wages, Bartak told Tully that the women wanted a system that would assure them that they were being paid equally with men for doing equal work and believed the best way to accomplish this was through a collective- bargaining agreement. In concluding her opening state- ment Bartak warned Tully that if the women's griev- ances were not dealt with by Respondent that the women would not stop short of turning to the Federal Government for a solution to their grievances. Tully replied that he did not respond well to intimida- tion, did not like being put between the NLRB and the EEOC, and stated that he had a reputation for fairness and suggested that the women check out his past record with the other newspapers for whom he had worked.9 Tully also stated that he was not allowed to discuss a contract with them because it might be construed as an unfair labor practice and that in view of the decertifica- tion petition he had to be very careful about what he said or did in connection with employees ' terms and con- ditions of employment . Bartak told him that "this activi- ty has nothing to do with the [Union ], this is a women's issue." Tully answered, "the fact of the matter is that one mistake on my part in this room will wind up with an unfair labor practice ." Bartak assured him that the women were not trying to trap him into committing an unfair labor practice. Tully stressed that due to the cir- cumstances of the decertification petition his hands were tied and he could not do anything at that time to resolve their grievances but that they should check into his repu- tation for fairness. Bartak informed Tully that the women would like to see some evidence of Tully's reputation for fairness and that she thought the newspaper could begin an affirma- tive action plan immediately. Tully replied that the sub- ject of affirmative action was an issue proposed by the Union during negotiations and that Tully was unable to negotiate with the women about this matter . Bartak stated the women did not want to negotiate with Tully, but just wanted to tell him that they felt there were cer- tain things that could be done to remedy their griev- ances, but did not want to negotiate with Respondent. Tully stated that due to the circumstances with the Union and the pendency of the decertification petition that the women would have to be patient for a while longer and if they were not willing to wait they could go to the EEOC and file charges that day, that this was their privilege, but that the EEOC would not solve their grievances and Tully was not intimidated by the EEOC. Bartak assured Tully that the women were willing to give Respondent some time to show them evidence of movement and she hoped Tully would accept the chal- lenge. The meeting ended at this point. As the meeting broke up Bartak gave Tully a list of materials that had been prepared by the women in sup- port of their individual grievances . Tully accepted this material and told Bartak to give him the tape recording 8 Tully had only been with Respondent for about 6 or 7 months PHOENIX NEWSPAPERS 55 of the meeting as soon as she could because he wanted to give it to the Respondent's lawyers 10 When, by early March Bartak had not given Tully her outline and copy of the tape recording of the February 23 meeting, Tully told Managing Editor Early to speak to Bartak about the matter because he wanted the Com- pany's lawyer to listen to the tape and that if necessary Respondent would have the tape transcribed for Bartak Early spoke to Bartak about this Bartak told him she had been busy with work and other personal matters and because of this had not had the time to make a copy of the tape recording that she said was of such poor quality that she was trying to prepare a manuscript for Tully's use Early told her that Tully wanted the tape so Re- spondent's lawyer could hear it and told Bartak that Tully thought a reasonable time had elapsed since the February 23 meeting and that Tully was "fairly serious" about wanting the tape Bartak stated she would get to it when she could, explaining to early that there had been no agreement between herself and Tully that she had to submit the tape to him within any fixed period of time i i Early relayed Bartak's response to Tully. When Bartak still had not submitted the tape recording or outline by March 20, on that date, Tully wrote Bartak expressing his dissatisfaction over her failure to comply with her promise to furnish him with a copy of the outline and tape of the February 23 meeting and informed Bartak that he considered this to be a breach of their agreement and reprimanded Bartak in this language I can only find your attitude one of gross and calculated insubordination I am, therefore, request- ing for the last time a copy of your original outline and the tape recording as agreed to. I want this ma- terial on my desk by [M]onday morning, March 26, at 9 am or you will be placed on indefinite suspen- sion without pay. If you are having difficulties getting the tape re- produced we will be glad to do it for you A copy of this letter is being placed in your per- manent personnel file On March 23 Bartak complied with Tully's request and, in a covering letter, explained to him the reasons for the delay and that she had made known the reasons for the delay to Early and protested the fact that Tully had even considered disciplinary action against her and asked that "The The portion of the meeting set out in this paragraph is based on Tully's credible testimony It does not show up on the tape recording be- cause the meeting had ended when the conversation took place 11 The description of Early's conversation with Bartak is based on a composite of their testimony Armstrong testified that he also spoke to Bartak about the tape recording in early March I have rejected this testi- mony because Bartak, who denied that Armstrong spoke to her about this matter, impressed me, in terms of demeanor, as a more credible wit- ness in crediting Bartak 's testimony in this and in other instances in this decision, I have taken into account her personal interest in this litigation and the fact that she lied to management when she denied responsibility for spreading the hit list rumor However, in the case of her testimony regarding the above and other matters that I have relied on in this deci- sion, I was impressed by the sincere and straightforward manner in which she testified and in terms of demeanor Bartak was a very impre- sive witness who left me with the impression that, although she felt wronged by Early's treatment, she took her oath as a witness seriously and testified truthfully and accurately Tully's March 20 letter of reprimand be removed from her personnel file During the early part of 1979 the Arizona Republic was in the process of putting together a 5-year plan for its business operation and appointed a committee of per- sons employed in the newsroom to work out this plan in- sofar as it would relate to the newsroom. No women were appointed to this committee and Bartak, shortly after her February 23 meeting with Tully, wrote a note to Early, Armstrong, and Schatt pointing out that no women had been selected to serve on this committee and asked if "the women in the newsroom are to interpret that as an indication that there is no future for them at the newspaper," and volunteered to serve on the com- mittee Schatt, who had selected the committee, an- swered Bartak by memo in which he characterized her comments as "snide insinuations" and stated she was free to submit in writing any ideas she thought the committee should consider and explained the basis that he used to select the committee Shortly thereafter a woman was appointed to the committee On August 7, 1979, Bartak filed a charge of discrimi- nation against Respondent with the Equal Employment Opportunity Commission and the Arizona Civil Rights Division (the EEOC) alleging in substance that Respond- ent was not paying wages to her comparable to the wages it paid to similarly situated male reporters and had promoted a male to the vacant position of assistant city editor rather than Bartak. The charge further alleged that the women employed by Respondent as a class were being denied wages and promotions equal to similarly sit- uated men and that men were being given perference in job assignments. i 2 Previously, in about April or May, sex discrimination charges against Respondent were filed with the EEOC by Arizona Republic newswomen Ellie Schultz, Carol Sowers, and Mellisa Jones These charges alleged dis- crimination as to pay, promotion, and hiring practices by the Respondent on behalf of each woman personally and on behalf of the other women employed by Respondent as a class 13 b The "Hit-List" The decertification election was conducted on March 16 and 17 Mayne testified that on either March 13 or 14, while City Editor Armstrong, Assistant City Editor Schatt, and himself were talking in the newsroom they observed Bartak using the phone and that Schatt stated Bartak was probably doing union business and that it would be good to have the "union matter" over so they 12 Reporter Turco testified that previously in March, Bartak told him "this company f- me over ever since I've started They owe me some- thing and I'm going to get them from two directions, the EEOC and the Union " Bartak denied saying this to Turco I have credited Bartak be- cause in terms of demeanor she impressed me as a more trustworthy wit- ness than Turco 13 The record only shows that the above-named employees filed their EEOC charges sometime after the February 23 meeting but does not give the exact date or dates or the content of the charges The finding, set forth in the text, is based on the representations set forth in Respondent's brief at 6, which I have treated as a motion to take official notice of the contents and dates of these charges and hereby grant the motion 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could get back to covering the news again. Everyone in- dicated they agreed with this sentiment Then Arm- strong, according to Mayne, stated that a number of the employees had to be redirected in their activities and ex- plained to Schatt and Mayne that a number of people had to be kept from standing in the way of management implementing certain changes in employees' terms and conditions of employment In response to Mayne's in- quiry as to whom he was talking about, Mayne testified that Armstrong named several reporters. The first one he named was Bartak and then several others. Mayne fur- ther testified that on the same day he made a note of this conversation. This note states that during this conversa- tion Armstrong and Schatt "mentioned the need to cleanse the staff of the disruptive influence of those who prevent management from putting into effect its impor- tant new programs" and that referring to several em- ployees by name stated, "if they can't be for us, they are against us and we can only go one way " I have rejected Mayne's testimony because Armstrong and Schatt specif- ically denied that the conversation took place and while testifying about this particular subject they impressed me, in terms of demeanor, as more credible witnesses than Mayne. 14 During May, the first part, while Mayne was attending a seminar in New York City he phoned Bartak to discuss certain business that they had been working on prior to his trip to New York pertaining to the Arizona Press Club After discussing the press club business, Mayne asked about the newspaper and was informed by Bartak that, among other happenings, the Union the previous week had picketed the paper and that there was a big turnout on the picket line. Mayne cautioned her that Bartak and the other employees who were union sup- porters should be careful because he had learned from Armstrong and Schatt that they were being watched by management to determine if they were engaging in im- proper behavior during working time and stated that Bartak as well as several other employees whom he named had been mentioned by Schatt and Armstrong as those employees whose work performances were being watched Mayne told Bartak that it was possible that the people he named including Bartak would be discharged if they were caught doing something inappropriate Bartak- noted that all the persons he had mentioned ap- peared to be union adherents. -Mayne agreed with this observation. 15 14 I recognize that in general I have concluded that Schatt and Arm- strong were incredible witnesses, but while testifying about this particular conversation , in sharp contrast to their testimony given in connection with Bartak's work performance, they spoke with conviction and, in terms of their demeanor, impressed me as truthful witnesses I5 The description of this conversation between Mayne and Bartak is based on Mayne's and Bartak's testimony even though I am persuaded, as described supra, that Mayne in this conversation attributed false state- ments to Armstrong and Schatt I have credited Mayne's testimony that he communicated the above-described message to Bartak because de- meanorwise he impressed me as a sincere and reliable witness while testi- fying about this particular conversation and because Bartak, who substan- tially corroborated his testimony, also was an impressive witness In addi- tion, employee Kowalec also corroborated Mayne's testimony that be- sides Bartak he also phoned Kowalec and passed along the same or simi- lar information Bartak informed other employees about Mayne's com- ments and these employees and Bartak apparently told others This story caused concern among the employees who were union adherents, particularly those whose names had been listed as the ones whose work manage- ment was watching One of the workers who learned about Mayne's remarks to Bartak was Cecila Goodnow, the wife of employee Jack Swanson, the Union's presi- dent In may Goodnow advised City Editor Armstrong and Assistant Editor Schatt that the employees in the newsroom were very concerned about a rumor that Re- spondent was maintaining a list of employees who were going to be terminated because of their union activities, that this rumor had originated from Mayne who had given the information to Bartak, and that Goodnow un- derstood that Mayne's source was Armstrong. Goodnow told Armstrong and Schatt that she was worried that she might be on the list and had been told that she was wor- ried that she might be on the list and had been told that her husband and employees Kowalec and Bartak were on the list Armstrong denied there was such a list and stated the rumor was false. He immediately notified Managing Editor Early about the rumor and at the same time phoned Mayne, who was still out of town attending a seminar, and told Mayne about the rumor that had been attributed to him and questioned him about it Mayne specifically denied having knowledge about the matter and denied giving such information to Bartak. On May 29 Early summoned Armstrong, Schatt, Goodnow, Swanson, Kowalec, Mayne, and Bartak to his office and spoke to them about the so-called hit-list rumor. He told them that the rumor was false and had created divisiveness and discord in the newsroom and distrust between management and the employees and stated he would not tolerate such rumors. He also ques- tioned Mayne and Bartak about their responsibility for starting and spreading the rumor and even though each of them in effect denied such responsibility Early indicat- ed he did not believe them Early stated that he thought Mayne was responsible for starting a rumor and Bartak was responsible for spreading it He also stated that be- cause of Mayne's responsibility for starting the rumor that his integrity as a member of management was in doubt because it was very difficult for management to trust him on account of this Two days later, on May 31, Early issued written reprimands to both Mayne and Bartak because of their responsibility for starting and spreading the so-called hit-list rumor and placed these reprimands in their personnel files. Bartak refused to ac- knowledge the receipt of her reprimand by signing it. c Bartak's May 18 performance evaluation and the events leading up to her October 5 evaluation Since the Union's certification in 1978 Respondent had frozen the wages of the employees who were represent- ed by the Union because their wages were the subject of collective bargaining. On April 23 Respondent and the Union bargained to impasse and Respondent implement- ed its last bargaining proposal that included an increase in employee wages. At this time all union-represented employees had their wages increased so that they would PHOENIX NEWSPAPERS 57 be earning the minimum wage contained in Respondent's contract proposal. Bartak's weekly wage was raised from $270 to $325, which equaled the minimum salary for a reporter of her tenure Also, as a part of the contract proposal placed into effect on April 23, Respondent instituted an evaluation system for the union-represented employees. t 6 In the first month following its implementation the supervisory staff of the Arizona Republic evaluated the employees represented by the Union who worked under their super- vision This was the first time ever that a systematic work performance evaluation was conducted by manage- ment among these employees, so it was new to the su- pervisors. However, it is undisputed that prior to institut- ing the several performance factors that were to be eval- uated and the standards for evaluating them that manage- ment held supervisory meetings at which the supervisors, including Schatt and Armstrong, discussed the perform- ance factors that were to be evaluated and the standards to be used in evaluating them so that management was sure that all employees would be evaluated the same way. (Tr 1034-1035 ) On May 18 Bartak was evaluated by City Editor Arm- strong and Assistant City Editor Schatt Prior to this meeting Armstrong and Schatt discussed Bartak's work performance and then based on his own and Schatt's ap- praisal of Bartak's work, Armstrong filled out the stand- ard performance appraisal form used by the supervisors to evaluate employees Armstrong rated Bartak "above- average" for the following performance factors: "Deci- sion-Making Ability (consider ability to think intelligent- ly & make logical decisions)", "Initiative (consider tend- ency to contribute, develop and/or carry out new ideas or methods)", "Quantity of Work (consider the volume of work produced)", and "Quality of Work (consider the extent to which standards are met)." Armstrong rated her as "average" for the following performance factors- "Technical Knowledge & Ability (consider job knowl- edge & ability to learn)", "Carries out assignments"; "At- tendance & Punctuality", "Degree of Cooperation", and "Personal Appearance as it relates to the Job " These performance factors constitute all the factors listed on the performance appraisal form In the space on the form entitled "Overall Evaluation-Comments," Armstrong wrote as follows Bonnie is a hard worker who frequently works more hours than expected and who uses many hours of her personal time gathering information to apply in her work. She has above average knowl- edge of the political and behind the scenes working on beats she has worked. She has a good knowl- edge of government procedures. She is tireless in pursuit of a good story. Her writing, while accurate and complete, lacks flair Her most serious liability is her inability to either understand the importance of making deadline or, if understood, to report and write in time for deadline. I feel one of the reasons 16 Previously in 1978 this evaluation system had been placed into effect in the departments that were not represented by the Union or by other unions for this inability is that she has the difficult task of covering a large and complex beat alone at the present time Another reason is her habit of appar- ently putting off writing while talking and frequent- ly interrupting her writing to talk to others During the May 18 evaluation interview Schatt spoke only once when he apologized for giving Bartak an aver- age rating on her appearance, explaining to her that the supervisors had been instructed to rate no one higher than average for this performance factor Armstrong, who conducted the interview, initially either showed Bartak what he had written on,the appraisal form, as de- scribed above, or read to her what he had written on the form Bartak testified that during the interview Armstrong asked how she would feel about working as an assistant city editor, which would be a promotion, and that Bartak replied she might be interested and would consid- er the matter On the subject of wages Bartak testified that Armstrong did not state what, if any, raise in pay she would receive as the result of her evaluation but that when Bartak stated she thought she deserved an increase of $75 a week from $325 to $400 that Armstrong replied he would have to talk to Early about the amount of her payraise because payraises were set by Early. Finally Bartak testified that when Armstrong's comments about her failure to meet deadlines were read from the evalua- tion or shown to her she objected indicating that she dis- agreed with Armstrong's assessment of her work in this respect and that Armstrong in response to her objection wrote some additional comments on the evaluation In this respect it is undisputed that during the May 18 inter- view Armstrong wrote the following addendum to his previous comments: "(Following remarks added May 18, 1979) Since this appraisal first was written three weeks ago, Bonnie has made noticeable improvement in making deadline and I believe there will be further improvement in future." Armstrong testified that during the May 18 evaluation interview he criticized Bartak at length about her failure to meet deadlines and for talking with other reporters and that both himself and Schatt criticized her coverage of the city hall beat and, in this respect, told her that they thought her coverage was not broad enough and they wanted her to report about the several city depart- ments not just about the city council. Armstrong also testified that he told Bartak he was going to raise her pay $35 a week from $325 to $360, that Bartak indicated she was not satisfied with the amount of the payraise, and that Armstrong told her if she was dissatisfied with the appraisal or the amount of the payraise that her eval- uation would be appealed to Early Armstrong specifical- ly denied saying anything to Bartak about the position of assistant city editor. Bartak specifically denied that Armstrong criticized her for missing deadlines or for talking to other reporters other than what was stated in the written evaluation form and specifically denied that Armstrong or Schatt talked to her about her coverage of city hall or men- tioned that if she was dissatisfied with her appraisal or payraise it would be appealed to Early 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schatt, who testified for Respondent, testified he made no comments during Bartak's evaluation interview, thus contradicting Armstrong's testimony that Schatt spoke to Bartak about her coverage of the city hall beat nor did he corroborate any of Armstrong's testimony about what was stated at this meeting other than Armstrong's denial of having spoken to Bartak about the position of assistant city editor Also Schatt's testimony that the practice re- garding employees payraises is for Early to approve the payraises only after Early was shown the completed evaluation form supports Bartak's testimony that Arm- strong did not tell her what her payraise would be but instead told her he would have to consult with Early about the matter It is undisputed that Early did not see Bartak's evaluation until after the evaluation interview I reject the testimony of Armstrong and Schaff con- cerning the May 18 evaluation interview insofar as it conflicts with Bartak's testimony because in terms of de- meanor Bartak impressed me as a more credible witness., Late in May Armstrong informed Bartak that he had spoken to Early about her payraise and that they had de- cided to raise it from $325 to $360 a week Bartak indi- cated she was not satisfied with this amount and felt that she was entitled to be paid $400 a week because this was what several of the male reporters had told her they were earning Bartak asked to speak to Early about her payraise Armstrong requested that Bartak not speak to Early but to permit Armstrong to handle the matter. Bartak agreed Thereafter, early in June Armstrong in- formed Bartak that Early was not going to change her salary from $360 and that Early had told him that his evaluation of Bartak's work had not been tough enough. Armstrong at this time also told Bartak that there were other employees besides Bartak, who were not satisfied with the amount of their payraise and what they were doing with those other employees was to evaluate their work sooner than usual in order to give them their next payraise sooner than usual Bartak asked if they could do this in her case and Armstrong answered in the affirma- tive 17 On August 19 Bartak by memo reminded Armstrong that according to their agreement she was supposed to have another appraisal and asked that it be scheduled for the last week of that month When Armstrong did not do this Bartak on September 7 personally spoke to him and asked whether he had discussed the matter of her ac- celerated evaluation with Early Armstrong indicated that Bartak could be evaluated if she wanted but that Early had said he would not grant her an additional payraise Bartak reminded Armstrong that he had prom- ised her another evaluation and stated she was holding him to that promise Armstrong agreed to schedule an- other evaluation. When such an evaluation was not scheduled Bartak then spoke to Nilsson, her immediate supervisor, about the evaluation, who in turn talked with Armstrong, which resulted in Nilsson and Armstrong agreeing to give Bartak another evaluation the first week in October That week Bartak asked Nilsson what day 11 The record establishes that supervisors did not request accelerated evaluations for employees who they did not think warranted an additional payraise (Tr 1234-1235 ) they were going to meet for her evaluation Nilsson stated he would check with Armstrong Later that week Nilsson advised Bartak that Early had asked to talk to him about Bartak's evaluation On October 4 Armstrong for the first time informed Bartak that Early had decided he would conduct Bartak's evaluation as an appeal and that neither Armstrong nor Nilsson would participate in evaluating her work t8 On October 5, shortly before meeting with Bartak to evaluate her work performance, Early discussed Bartak's work with her immediate supervisor, Assistant City Editor Joel Nilsson, who had been Bartak's supervisor since May 1979 19 Early called Nilsson to his office and asked .him what he thought of Bartak's work perform- ance Nilsson stated he thought Bartak was a good re- porter, that although occasionally she missed deadlines he felt that on the whole she had performed capably under his supervision and had done everything he had asked Early disagreed with Nilsson's evaluation and, in substance, criticized Bartak's performance as follows She had been badly beaten on a story by the Respond- ent's afternoon newspaper while on the city hall beat, as urban affairs reporter she did not produce enough stories because her coverage was too narrow and she did not get into the bureaus enough thus did not produce enough daily stories, her writing was poor particularly her lead paragraphs; her stories contained numerous omissions that tended to make them slanted and biased; she talked too much to other reporters during working time thus interfering with her own and the work of others, and she did not meet deadlines Nilsson told Early that he dis- agreed with his evaluation of Bartak's work perform- ance In answer to Early's criticism that Bartak was not producing enough daily stories because her coverage of the urban affairs beat was too narrow, Nilsson told Early that Bartak in this respect had been only following Nils- son's instructions to concentrate on in-depth coverage rather than daily copy and that Early's criticism in this respect should be directed toward him, not Bartak 20 In connection with the disagreement between himself and Nilsson about Bartak's work performance, Early testified that because of Nilsson's limited experience as a supervi- sor Nilsson was not as qualified as Early to evaluate Bar- tak's work, even though Nilsson had continuous contact with her work whereas Early had only limited contact There is no contention or evidence that Early disagreed with Nilsson's evaluations of the work of anyone other than Bartak, even though Nilsson submitted for Early's 18 The description of Bartak's conversations with Armstrong and Nils- son between May 18 and October 5 about her payraise and evaluation is based on Bartak's testimony Armstrong's sole testimony pertaining to those conversations is that after Early rejected Bartak's request for more money Armstrong communicated this information to Bartak, informed her that Early disagreed with Armstrong's May 18 evaluation and that Early would talk to her in the "appeal process" about the matter at a later date t have rejected Armstrong's testimony because in terms of de- meanor Bartak impressed me as the more credible witness 19 The description of Nilsson's conversation with Early is based on a composite of their testimony 20 As described infra, Nilsson when he told Bartak about her urban af- fairs assignment directed her to produce in-depth stories and to write about issues rather than produce copy about daily events PHOENIX NEWSPAPERS signature written performance evaluations of several re- porters who worked under his supervision d Respondent's repudiation of Bartak's May 18 performance evaluation At the time of her May 18 performance evaluation Bartak had been working the city hall beat since about the spring of 1977 and continued to work this beat until June 1979 when she was assigned to the urban affairs beat The city hall beat is one of the most important beats for the paper and is a large complex beat When Bartak was first assigned to this beat she was only one of three full-time reporters assigned to it, but by the first of 1978 was left to cover it by herself. As described supra, Bartak's May 18 performance evaluation indicated that management appreciated her work performance and was of the opinion that overall she was a good worker who warranted a merit payraise of $35 a week 2 i The quantity and quality of her work, her decision-making ability and initiative were all rated above average and in all other respects her work per- formance was rated average The only criticisms either expressed to Bartak during the evaluation interview or noted on the evaluation form was that Bartak's supervi- sors felt her inability to report and write in time for deadline was created by her habit of putting off writing while talking to other reporters. However, the evaluation also noted that one of the reasons for Bartak's failure to meet deadline was excusable in that "she had the difficult task of covering a large and complex beat alone at the present time" and also remarked that during the 3-week period immediately prior to the evaluation interview Bartak "has made noticeable improvement in making deadlines " The evaluation form indicated that Bartak's work had been appraised by both her immediate supervi- sor, Assistant City Editor Schatt, and Schatt's boss, City Editor Armstrong During the hearing in the instant case Schatt and Arm- strong repudiated their May 18 evaluation of Bartak's work and in effect testified that the evaluation over- praised Bartak's performance and was not an accurate evaluation of her performance Likewise, Managing Editor Early testified that the May 18 evaluation was "badly done" and wrong and that in fact Bartak's work performance during the period covered by the evaluation was "terrible " In presenting this testimony Schatt, Arm- strong, and Early, in terms of their demeanor, seemed to be insincere witnesses who were attempting to support Respondent's case even though it meant disregarding the truth by exaggeration or outright fabrication In addition, their reasons for repudiating the May 18 evaluation, when viewed in terms of the whole record, including the testimony of Bartak who in terms of demeanor impressed me as an honest witness, bolster the conclusion that their testimony was a fabrication In an apparent effort to disassociate himself from the May 18 evaluation, Schatt testified that he was not con- sulted by Armstrong in the preparation of this evaluation and only observed it after it was prepared and thought it 21 The record reveals that during this period Respondent granted merit payraises only to those reporters who it felt merited such a raise 59 was an "over praising evaluation " That Schatt, who was Bartak's immediate supervisor, would not have been con- sulted by Armstrong, who had only limited contact with Bartak, is inherently implausible It is not surprising that Armstrong contradicted Schatt and testified that prior to completing the May 18 evaluation form and in prepara- tion for the completion of the form that he consulted with Schatt about Bartak's work performance Arm- strong further testified that Schatt viewed Bartak's work performance in the same light as Armstrong and that Armstrong completed the evaluation form only after consulting with Schatt In addition to Bartak's failure to report and write on time for deadline and her habit of postponing her work by talking to other reporters, Schatt's only other criti- cism of Bartak's work performance was her failure to check into the city desk during the day so that the edi- tors on the desk, including Schatt, would know her whereabouts and Bartak's narrow coverage of the city hall beat Regarding the former, Schatt's testimony is not corroborated by anyone else No mention of this alleged failing was expressed to Bartak during the evaluation interview or in the evaluation report Plainly, at the time of Bartak's evaluation Schatt did not consider this to be a significant matter. Regarding the latter Schatt testified that he reprimanded Bartak several times during the latter part of 1978 and early 1979 about the narrowness of her city hall coverage and that Bartak continually re- plied to him that she did not have enough time to expand her coverage Schatt further testified that once early in 1979 when he told Bartak she would have to stop ignoring the planning and zoning departments and start covering their activities that Bartak refused to obey his instructions and did not cover these departments De- spite this alleged blatant act of insubordination there is no evidence that Schatt disciplined, let alone reprimand- ed, Bartak Nor was there any mention in Bartak's May 18 evaluation about Bartak's narrow coverage of city hall and, as I have found supra, the matter was not men- tioned to Bartak during the interview itself Under the circumstances I am of the opinion that Schatt's testimony that he criticized Bartak about her narrow coverage was a fabrication Moreover, Bartak credibly testified that Schatt never spoke to her about this subject Quite the opposite, Bartak's undenied testimony is that in the spring of 1979 Schatt told her "she was the best city hall reporter that they had since he [Schatt] covered the beat " Armstrong testified that the reason he gave Bartak such a good evaluation was that it was one of the first ones that he had done and had only a few guidelines to go by, that he felt Bartak had the potential to be a very good reporter, and that he thought that a good evalua- tion would make her respond in a positive way 22 An ex- 22 In view of the fact that prior to instituting the evaluation procedure management conducted several supervisory meetings attended by Arm- strong where the several performance factors and the standards to be used in evaluating an employee for each factor were discussed and debat- ed, Armstrong's attempt to repudiate his evaluation of Bartak on the ground that he did not know what he was doing is unconvincing, espe- cially because Armstrong was not a low-echelon supervisor but a high- Continued 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD amination of Armstrong's testimony reveals that his only criticism of Bartak's work performance during the period she was assigned to the city hall beat, other than the criticisms expressed in the evaluation form, was the fact that Bartak's coverage of city hall was too narrow In this regard Armstrong testified that during the 12-month period prior to May 1979 he verbally reprimanded Bartak three or four times for her narrow coverage. Armstrong failed to explain why such a serious failing of Bartak's narrow coverage was not listed as one of Bar- tak's failings in Bartak's performance evaluation prepared by Armstrong. Also, as found supra, Armstrong did not mention this matter to Bartak during Bartak's May 18 evaluation interview. In addition, Bartak credibly testi- fied that Armstrong never spoke to her critically about her coverage of the city hall beat Under these circum- stances, I am of the opinion that Armstrong's testimony that he had reprimanded Bartak for her narrow coverage was a fabrication Managing Editor Early testified that Bartak's work as a reporter kept improving each year from the date she began work for Respondent in March 1973, until she was assigned to the city hall beat early in 1977 when Early testified that Bartak's work performance hit a "plateau" and her improvement stopped He further testified that as of May 18, the date of Bartak's evaluation, "my opin- ion of her work was that it was terrible, that it was sub- stantially below what it ought to be," and that Bartak had "a lot" of deficiencies in her work performance. Nevertheless, even though he felt the May 18 evaluation submitted by Armstrong and Schatt was wrong, Early testified that because it had already been shown to Bartak prior to his seeing it that he could not counter- mand it because he had to stand behind his supervisors In terms of his demeanor Early, as I have already indi- cated above, when testifying about Bartak's work per- formance did not impress me as a credible witness and, under the circumstances, I feel I must view his testimony about Bartak's work performance with skepticism That this skepticism is justified is bolstered by a close scrutiny of the reasons Early advanced to support his testimony that in addition to the criticism expressed in Bartak's May 18 evaluation that Bartak's work was deficient in these respects: her writing was poor, her coverage of the city hall beat was narrow, and the Respondent's after- noon paper, the Phoenix Gazette, had beaten the Repub- lic on three stories that Bartak should have gotten ahead of the Gazett's reporter. On the subject of Bartak's writing deficiencies, Early testified Bartak "always had a writing problem," that she was "never a very good writer" and further testified "there were times she could write adequately and with some editing help, you could get her in the paper okay " In short, Early would have me believe that for 2 years Respondent permitted a reporter, who was an unsatisfac- tory writer, to handle one of its most prestigious and im- portant beats. His testimony is not corroborated by ranking member of management As a matter of fact, Armstrong's later testimony that he knowlingly gave Bartak too good an evaluation in order to give her an incentive to improve her work performance is incon- sistent with his testimony that he was ignorant of the proper guideline used to rate an employee Schatt or Armstrong.23 Moreover, there is no evidence that Early, during the time Bartak worked as city hall re- porter, communicated his dissatisfaction with Bartak's writing ability to her immediate Supervisor Schatt or to Schatt's boss Armstrong. Regarding Early's testimony that Bartak's coverage was too narrow he testified that he spoke to her in 1977, shortly after she had been assigned to the city hall beat, about broadening her coverage but that Bartak ignored his remarks and continued to limit her coverage to the city council, the city manager, the budget, and the poli- tics of city hall and ignored all the city's bureaus. In view of this, Early testified that in late 1977 he again spoke to Bartak and told her to expand her coverage into the parks department and other departments but that Bartak still continued to disregard his instructions at which point in 1978, Early testified, he complained to Armstrong and Schatt about the narrowness of Bartak's coverage and kept complaining to them periodically from the spring of 1978 continuously until Bartak, in June 1979, was reassigned to the urban affairs beat In short, Early would have me believe that Bartak from the beginning of her employment on the city hall beat ig- nored Early's specific instructions that she broaden her coverage of the beat and that Early ignored this act of insubordination without any disciplinary action He would further have me believe that despite the fact that he had made it abundantly clear to Schatt and Arm- strong that he viewed Bartak's failure to broaden her coverage as an important matter that Schatt and Arm- strong would neglect to mention this in Bartak's May 18 evaluation report In short, under the circumstances I be- lieve Early's testimony that he viewed Bartak's narrow coverage as a serious matter or that he spoke to Bartak about the matter is a fabrication. As a matter of fact, Bartak credibly testified that Early never spoke to her aobut this matter. Lastly, Early's testimony that Bartak, prior to her May 18 evaluation had been "scooped" by the afternoon paper, the Phoenix Gazette, on three different stories is plainly an afterthought because neither Schatt nor Arm- strong, when questioned about Bartak's work perform- ance while on the city hall beat, was critical of Bartak in this respect and there is no evidence that Early had ever expressed dissatisfaction about Bartak's work in this re- spect to either Bartak, Armstrong, or Schatt. Based on the foregoing, I am of the opinion that as of Bartak's May 18 work performance evaluation that Re- spondent, including Early, Armstrong, and Schatt were in general not dissatisfied with Bartak's work perform- ance and that the May 18 evaluation was an accurate ap- praisal of Bartak's work performance In other words, Respondent was well satisfied with Bartak's work per- formance as a reporter even though Bartak frequently 23 Neither Armstrong nor Schatt when questioned about Bartak's fail- ings as a reporter while employed on the city hall beat criticized her writing ability In his May 18 evaluation of Bartak's work Armstrong stated that her writing was "accurate and complete " I realize that Arm- strong also stated that her writing lacked "flair," however, this is hardly comparable to Early's testimony wherein he inferred that only at times could Bartak write "adequately" and with the help of editing get her sto- ries into the paper PHOENIX NEWSPAPERS 61 had difficulty writing copy in time for deadline, fre- quently talked to other reporters during working time rather than attending to business, often failed to notify the city desk of her whereabouts, and in her coverage of the city hall did not cover the several city bureaus This conclusion is not only warranted by Bartak's May 18 evaluation and merit pay raise but is bolstered by the fact that Managing Editor Early in about June 1978 informed Night Editor Kowalec that Bartak was a "damn good re- porter" and during this same period in a management meeting Early indicated that Bartak had the ability to be considered for an assistant editor's position 24 Also As- sistant City Editor Schatt in the spring of 1979 told Bartak she was "the best city hall reporter that they had since he covered the beat " Likewise, Managing Editor Armstrong complimented Bartak's work performance On March 30 Armstrong wrote a memo to Bartak in which, while indicating that she could meet her deadline by writing her copy early in the day rather than talking with other reporters, he informed Bartak that "I want to again say that you and your talent and dedication are ap- preciated and that the [city] desk is aware of your strong points " And as late as June 18 when Early was remov- ing Bartak from the city hall beat and transferring her to the urban affairs beat supposedly due to Bartak's unsatis= factory work performance-a contention I have rejected infra-Associate Publisher and General Manager Tully was writing to Bartak, "congratulations on a fine story, it is a tribute to good journalism to carry off a story of that magnitude and length and maintain reader interest throughout Keep up the good work." e Bartak is reassigned to the urban affairs beat Respondent's urban affairs beat reporter covers the Central Arizona Systems Agency and the Maricopa As- sociation of Governments and specializes in news con- cerning Phoenix's surrounding urban area In May or June the urban affairs reporter Jack Swanson was pro- moted to the position of assistant city editor which left his position vacant It is undisputed that the urban affairs beat is regarded by reporters as a some what more prestigious beat than most of the paper's other beats, including the city hall beat, because unlike most other beats , including city hall, the urban affairs reporter also has the title "urban affairs writer" besides the usual byline. Late in June Assistant City Editor Nilsson, who in May had become Bartak 's immediate supervisor, in- formed her that he and City Editor Armstrong had de- cided to transfer her to the urban affairs beat to fill Swanson's vacancy and that they had done this because, after reviewing the staff,, they felt Bartak was the only person qualified to fill the vacancy Nilsson explained to Bartak the way in which he expected her to cover this beat Specifically , he told her that she should concentrate on producing in-depth stories and write about the issues as opposed to doing daily coverage of breaking stories such as meetings Nilsson explained he felt that the job of urban affairs writer was to explore the issues Nilsson also advised her that as part of her duties as urban affairs 24 Based on the undenied and credible testimony of Kowalec writer she would be covering the upcoming Papago Freeway Election that the record reveals was a contro- versial issue involving the public's support or nonsupport of a bond issue to build a freeway. Early testified he made the decision to remove Bartak from the city hall beat because: I tried to convince her to cover the [city hall beat] the way I wanted it covered . . . I tried and the su- pervisors on the city desk, they tried to get her to cover the beat the way we wanted it covered . So, at that point [referring to the time Bartak was transferred to the urban affairs beat], I just could not take it any more, and I said, you know, our readers deserve better than this, get her off [the city hall beat] and I ordered her off the city hall beat As I have found supra, Early's testimony that Bartak's work performance on the city hall beat was unsatisfac- tory and that he viewed her work with dissatisfaction is incredible Accordingly, I reject his testimony that he re- moved Bartak from the city hall beat for this reason.25 Rather, I find Bartak was transferred from the city hall to the urban affairs beat because of a vacancy there and, after reviewing its staff, management concluded Bartak was the only person qualified to fill the vacancy This is the reason given Bartak by her supervisor when he in- formed her about the transfer and at no time did supervi- sion ever inform Bartak that she had been reassigned be- cause Respondent was dissatisfied with her work as city hall beat reporter Moreover, the urban affairs beat is a somewhat more prestigious beat than the city hall beat and its last occupant had been promoted to the position of assistant city editor I do not believe that if Bartak's reassignment had been caused by Early's dissatisfaction with her work performance on the city hall beat she would not have been told that this was the reason. Nor do I believe she would have been rewarded with a more prestigious beat if Early had viewed her work perform- ance on the city hall beat with such dissatisfaction f Schatt's August 27 reprimand of Bartak On August 27 the personnel on the city desk needed to reach Bartak in order to ask her some questions about a potential story and were unable to locate. her because she did not tell anyone where she could be reached Assist- ant City Editor Schatt reprimanded her in writing for this conduct. In her approximately 6-1/2 years with Re- spondent this was the first written reprimand issued Bartak concerning her work performance 26 Schatt testi- 25 In concluding that Respondent did not reassign Bartak because it was dissatisfied with her work as city hall beat reporter, I have consid- ered the testimony of reporter Turco, a witness for Respbndent who re- placed Bartak as city hall reporter, who in effect testified that he was informed by Early, Armstrong, and Schatt that they were not happy aobut Bartak's work on that beat and wanted him to improve on it Nei- ther Early nor Armstrong nor Schatt testified about these alleged conver- sations with Turco and inasmuch as Turco, in terms of demeanor did not impress me as a credible or reliable witness, I have rejected his testimo- ny zs The only written reprimand previously issued Bartak was Early's June 12, 1978 memo to Bartak explaining the Company's rule regarding the manner in which employees were to enter their overtime on time- cards and directing Bartak to follow this procedure 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD feed his reason for issuing the reprimand was that super- vision was under pressure from General Manager Tully when he came to work for Respondent to do things cor- rectly and that Bartak was under probation at that time and the conduct she had engaged in was serious so he wanted to impress her with the fact that it was serious. The record reveals that Tully had become general man- ager more than 12 months previously and that Bartak was not placed on probation until October.27 e Early's decision to personally conduct Bartak'c October 5 evaluation Early, who signed Bartak's May 18 written evaluation on May 18, testified that contrary to company policy he did not see the appraisal until after it had been shown to Bartak and in view of this he did not change the evalua- tion even though he disagreed with it Early further tes- tified that about 2 weeks after the May 18 evaluation Bartak was notified by Armstrong about her merit pay raise at which time Armstrong told Early that Bartak was not satisfied with the amount of the raise and wanted more money Early further testified that because he had disagreed with Armstrong's evaluation, he would not agree to give her more money and told this to Arm- strong Armstrong informed Early that he, Armstrong, did not agree with Early's view of Bartak's work per- formance Thereafter, as I have described supra, Arm- strong, in order to get Bartak a pay raise sooner than usual suggested that instead of waiting until her anniver- sary date to be evaluated for a pay raise that Bartak be evaluated earlier Bartak agreed In August and Septem- ber Bartak reminded Armstrong that he had promised to reevaluate her in connection with her request for more money At this point, late in September, Armstrong agreed to reevaluate Bartak and spoke to Early about this Specifically, as Early testified, Armstrong told him that Bartak still was not satisfied with her last pay raise whereupon Early replied, "if that is the way it is going to be, I will call up a sheet [referring to a work perform- ance appraisal form used to evaluate employees] and I will treat that as an appeal from her last review and I will handle it."28 Bartak at no time prior to October 4 was ever told that Early would be evaluating her and it is clear from the record that the conversation she had with Supervisors Nilsson and Armstrong about her eval- uation were calculated to give her the impression that 27 In the reprimand of August 27 Schatt also stated to Bartak, "I meant to talk sternly to you this afternoon about wasting the day talking to people in the news room-but you disappeared before I could " Schatt did not testify about the basis for this assertion Bartak credibly testified that other than in her May 18 written evaluation she had not been repri- manded by supervision previously either in writing or verbally for engag- ing in this type of conduct 28 I reject Armstrong's testimony, which was inconsistent with Early's, that Armstrong notified Bartak about the amount of her pay raise at the May 18 evaluation interview and that it was a few days after the May 18 interview that Armstrong informed Early that Bartak was dissatisfied with her pay raise at which time Early stated he would consider Bartak's request for more money as an appeal Rather, I find that it was not until at least 2 weeks after May 18 that Armstrong indicated to Early that Bartak was dissatisfied with her pay raise and that it was not for several months later or as Early testified, until late September, that Early, for the first time indicated that he intended to treat Bartak's dissatisfaction as an appeal either Nilsson or Armstrong or both would be the per- sons conducting-her October 5 evaluation Early, the managing editor of the Arizona Republic, is responsible for the overall operation of the newsroom The paper is one of the larger metropolitan daily news- papers in the country, so Early does not have time to personally supervise the newsroom employees and leaves this task to his subordinates, except in the case of a few investigative reporters who report directly to him Other than in the case of these investigative reporters, Early does not participate in employees' evaluation interviews nor does he fill out the appraisal forms used to evaluate employees These tasks are left for the employees' imme- diate supervisor or the city editor or both Since the start of the evaluation program in the newsroom in May 1979 until Early's testimony in this case on February 26, 1981, the only employee, excluding the investigative reporters whom he personally supervised, that Early personally evaluated was Bartak. During this period of almost 2 years other employees in the newsroom besides Bartak were dissatisfied with the amount of their merit pay raises and had expressed this dissatisfaction to manage- ment and like Bartak had been given an accelerated per- formance evaluation, but unlike Bartak each one of these evaluations was conducted by the employee's supervisor, rather than Early. In this regard the record establishes that if a pay raise granted as the result of an employee's annual evaluation was not satisfactory to the employee, that if the employee's supervisor agreed that the employ- ee deserved more money the supervisor could evaluate the employee earlier than usual rather than force the em- ployee to wait until the next regularly scheduled evalua- tion for another pay raise. - Early testified that Bartak's work performance on Oc- tober 5 was evaluated by himself rather than her supervi- sors because he did not agree with their evaluation of Bartak's work and testified that in all the other cases of accelerated evaluations involving employees who were not satisfied with their pay raises he had agreed with the supervisors' initial evaluation Of course, this testimony is self-serving in the sense that its bona fides cannot be tested by objective- evidence other than evidence that in those cases where employees were granted an acceler- ated evaluation due to their dissatisfaction about the amount of their merit raise that Early had not disagreed with the supervisors' initial evaluation of the employees' work No supervisor corroborated Early's testimony in this respect and contrary to Early's testimony Managing Editor Armstrong's testimony indicates that employee Collier who, like Bartak, was dissatisfied with the merit raise he got after his first evaluation, received an acceler- ated evaluation from his immediate supervisor, not by Early, even though Early felt that Collier did not de- serve the increase But, more significant in assessing the trustworthiness of Early's testimony explaining his reason for personally evaluating Bartak's work perform- ance is the fact that Early, in terms of his demeanor, did not impress me as a credible witness. Also, I am persuad- ed that, if Early had a policy of treating the dissatisfac- tion about a wage increase expressed by an employee in Bartak's circumstances as an appeal which Early handled PHOENIX NEWSPAPERS 63 by personally appraising the employee's work perform- ance, Early would have informed Bartak that he person- ally would be evaluating her work, rather than her su- pervisors. Bartak was not advised until the day before her evaluation that it would be Early, rather than Arm- strong or Nilsson who would be evaluating her work Early's justification for his failure to notify Bartak that he was personally going to evaluate her work is appar- ently based on his testimony that he felt that he could not inform Bartak that he disagreed with her supervisor's May 18 evaluation because this would tend to undermine the authority of the supervisors in the eyes of the em- ployees, which is bad personnel policy What Early actu- ally did in this case elies his concern about how it might look to the employees if he overruled his supervisors on personnel matters Thus, less than 5 months after Super- visors Schatt and Armstrong rated Bartak as a better than average worker who deserved a merit pay raise, Early rated her as a worker whose work performance was so bad she was placed by him on probation, even though the alleged misconduct that he based his evalua- tion on existed during the period prior to Bartak's eval- uation by Schatt and Armstrong Plainly, Early's action demonstrated to employees that he felt Armstrong and Schatt had been grossly mistaken in their assessment of Bartak's work and that Early was overruling their eval- uation Based on the foregoing, I find that in personally evalu- ating Bartak's work performance on October 5 that Early deviated from the Respondent's normal policy and that his explanation for doing this was false h Bartak's October 5 evaluation On October 5, after talking with Bartak's supervisor, Nilsson, about Bartak's work, as described supra, Early summoned Bartak to his office and in the presence of City Editor Armstrong gave Bartak an appraisal of her work Previously, Early filled out the standard appraisal form used by supervision to evaluate employees and sup- plemented this form with three pages of single-spaced typewritten material that was an elaboration of his rat- ings and comments set out on the form itself. He also at- tached three stories written by Bartak that he criticized in the written evaluation Early rated Bartak as "average" in the following per- formance factors "Initiative", "Decision Making Abili- ty"; "Carries Out Assignments"; "Attendance and Punc- tuality", and "Personnel Appearance as it relates to the Job " He rated her as "marginal" with respect to "Tech- nical Knowledge & Ability", "Quantity of Work", and "Quality of Work." He rated her as "unsatisfactory" with respect to "Degree of Cooperation " In the space on the evaluation form provided for "overall evaluation and comments" Early wrote, "see attached [referring to the sheets which he had attached]-needs to improve re- porting techniques as outlined, needs to increase quanti- ty, needs to improve lead writing; needs to improve speed, needs to meet deadlines constantly, needs to be more cooperative " Regarding Bartak's "Technical Knowledge and Abili- ty," Early wrote that the marginal rating was "primarily from your failure to grasp the nuts and bolts of beat work by reporting from the bureaus" and then went on to explain that while covering the city hall beat Bartak's coverage was too narrow, that her coverage on the urban affairs beat was also too narrow, and that the nar- rowness of her city hall coverage had resulted in the newspaper being "scooped" by the Phoenix Gazette on stories that dealt with the city budget and a sewer treat- ment plant Regarding Bartak's "Initiative," Early wrote that her initiative was very good but only in those areas where she had a special interest and that due to the narrowness of her coverage while assigned to the city hall and urban affairs beats her coverage in bureau reporting work was very poor Regarding Bartak's "Decision Making Ability," Early wrote that Bartak's "judgment on stories" was the main consideration in judging this factor and that he rated her on the low end of the "average" scale because she tended to cover a very narrow scope in whatever area she worked in and as example of this stated, "your urban affairs coverage of late has been almost entirely limited to the freeway issue At city hall you rarely reported a story outside the realm of the actions of the city coun- cil." Regarding Bartak's "Quantity of Work," Early wrote she was on the low end of the "marginal" scale, close to "unsatisfactory," because Bartak's "file for September shows [she] had 12 by-line stories in September [and] of those only 6 were enterprise stories, 4 were events cov- ered, 1 was an advance and 1 was a routine follow story " Early wrote that a beat reporter such as Bartak should be writing at least 20 and closer to 25 byline pieces a month and commented, "you have never been a big quantity producer so I think the September file accu- rately reflects your work output." Regarding Bartak's "Quality of Work" that Early had rated "marginal," Early wrote that her writing was "weak," particularly the leads in her stories Early used the copies of the three stories that he had attached to the evaluation as illustrations of her unsatisfactory writing In addition, Early wrote Bartak was "a very slow writer, far too slow for a journeyman reporter" and that he had watched her work for "a number of years" and she did not compose any quicker now than she had done in the beginning of her employment Regarding the performance factor entitled "Carries Out Assignments," Early wrote that Bartak was at the low end of the "average" scale because, "you do not seem to accomplish fully what you are assigned" and ex- plained that they had to put a number of persons on the Papago Freeway Election story to supplement her cov- erage In addition, Early wrote that the narrow coverage of the beats she was assigned reflected the rating given her in this category Regarding Bartak's "Degree of Cooperation" in which Early rated Bartak as "unsatisfactory," Early wrote, "you have failed consistently to cooperate with the edi- tors in all sorts of matters" and then went on to list these matters as follows. (a) Bartak's "injection of the issue of sex discrimination in the selection of planning committee members last February-and the snide manner in which 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD you raised the issue-is certainly an indication that you have a hostile attitude toward the editors", (b) Bartak's refusal to acknowledge receipt of Early's May 31 written reprimand dealing with the subject of the hit list rumor showed a lack of cooperation; (c) Bartak's "failure to help quell the spread of rumors in the newsroom-as you said you would do-is an indication of a lack of coopera- tion"; (d) Bartak's refusal to fill out her timecard proper- ly until notified by Early in June 1978 constitutes an- other indication of noncooperation; (e) Bartak's reluc- tance to comply with Associate Publisher Tully's request for the transcript of the tape recording of Tully's meet- ing with the women, and (f) what Early stated he con- sidered the most serious evidence of Bartak's lack of co- operation, her failure to stop talking to people in the newsroom despite repeated warnings about wasting time and the time of others. Early started this evaluation interview by telling Bartak he was treating this evaluation as Bartak's appeal from her previous review because Bartak was not satis- fied with the raise she had gotten and had asked for an- other review. He stated he disagreed with her previous review and was going to do a critique of her work and tell her what was wrong with it and how she could im- prove, that she had an enormous amount of talent, that she was hard working, that her work as a beginner had been good and it had improved, but that she had reached a plateau and that he felt so strongly about this, in order to make an impact on her he intended to put her on pro- bation for 3 months. Early then gave Bartak a copy of the three typed pages of attachements and also read to her from the writ- ten appraisal and the attachements Bartak for the most part remained silent while Early read, but once or twice she commented as follows. When Early indicated that her coverage as urban affairs reporter was too narrow, Bartak stated she was only complying with the direction of her supervisor, Assistant City Editor Nilsson. And with respect to Early's criticism of one of the articles at- tached to the appraisal, Bartak pointed out that the orga- nization of the story that Early was critical of was done according to the specific instruction given to her by As- sistant City Editors Schatt and Nillson At the end of the meeting in response to Bartak's ques- tions, Early admitted that Bartak's immediate supervisor, Nilsson, did not agree with Early's appraisal of her work, but Early stated that Nilsson did not have the re- quired "perspective" about the matter Armstrong, in commenting about his May 18 evaluation of Bartak's work, as compared to Early's evaluation, stated that Bartak had been one of the first employees he had evalu- ated and that he did not know what the standards were and that he did not disagree with most of Early's evalua- tion and that Armstrong had not evaluated Bartak on her cooperation. Early concluded the meeting by stating he was placing Bartak on probation for 3 months not with the idea of getting rid of her but that he would terminate Bartak if she did not show "great improvement " Bartak asked whether Early was disciplining her on account of her union activity Early emphatically denied this Bartak asked if she could make some comments and, in sub- stance, complained to Early that one of her bigest prob- lems regarding her stories was that no one on the city desk was willing to work with-her and discuss her sto- ries Armstrong stated that the persons on the city desk "dread it" when they observed Bartak coming to the desk as they did not want to spend time talking as they did not have more than 2 minutes to give a reporter on some days Bartak expressed the view that she thought that producing a story should be a partnership between the reporter and his or her editor Armstrong and Early replied that they expected the reporters to get things done on their own. Bartak informed them that since she had been assigned to urban affairs no one had told her if she was expected to cover city planning issues or the medical end from the Central Arizona Health System and that she had never gotten an answer from the editors when she asked what they wanted her to cover Early stated she should just ask and she would get an answer. Bartak stated she had asked and had never gotten an answer Before leaving Early's office, Bartak, in the space allo- cated for "Employee Comments" on the form Early used to evaluate her work performance wrote, "I don't agree with this assessment as its differs dramatically from the evaluation conducted 3 months ago, a period during which little has changed "29 i. Early reprimands Mayne for defending and complimenting Bartak's work performance As urban affairs reporter one of the issues that Bartak covered was the Papago Freeway Election that was scheduled to be held early in November. In October, early in the month, management decided that in connec- tion with her work involving the'Papago Freeway Elec- tion Bartak would work under the supervision of Eco- nomic News Editor Jack Mayne Jr. and continue to work for Assistant City Editor Nilsson in connection with her other work Bartak was told of this decision and thereafter Mayne supervised her in connection with her Papago Freeway Election stories that by the end of October, as the election approached, constituted the great majority of her work. On October 5 after her work evaluation interview with Early, which ended at about 6 p in, Bartak re- turned to the newspaper's library and finished research- ing a story on the Papago Freeway Election and re- turned to the paper the next day to write the story that was scheduled to appear in the first edition of the Sunday paper Mayne had given her a deadline of 6 p.m. and Bartak started to give the story to Mayne for editing late that afternoon and did not submit all of it until about 5.30 p.m On October 10 City Editor Armstrong wrote a memo to Bartak reprimanding her for missing the first edition deadline with her Sunday freeway story The memo in pertinent part read as follows 29 The description of the October 5 meeting described here is based on Bartak's contemporaneous notes of this meeting that were placed into evidence by all parties to this proceeding, and Early's testimony that was not inconsistent with these notes PHOENIX NEWSPAPERS 65 Although Mayne began getting the story about 4 pm saturday, you still were reporting it at 5 p m Consequently, the story did not move to the news desk until 6.30 p.m , too late for the [first] edition The deadline for all copy to the news desk for that edition on saturday is 5:15 p.m The result of missing the deadline was that [ex- plains the several consequences .]. I see no reason why that story should have been late, especially one day following your performance review in which the problem of late copy was dis- cussed at length. You simply cannot let this kind of performance continue You must make deadline. On October 11 Mayne, who was shown Armstrong's memo by Bartak, wrote Armstrong as follows Bonnie Bartak showed me your memo to her dated Oct 10, 1979, regarding your dissatisfaction with her for failing to meet the deadline with the Sunday, Oct 7 history of the Papago freeway story. She referred the matter to me because I was direct- ly involved in the preparation and editing of the story. I have become aware of the concern that man- agement has for certain aspects of Bonnie's per- formance and that the matter has reached a serious degree It is for that reason that I feel that I should set the record straight concerning certain specifics I feel you are not aware of as it pertains to this story I am as concerned as others with deadline problems, but feel there are mitigating circumstances here Consider -Bonnie worked a four-day week, having taken off the Jewish religious holiday of Yom Kippur. -Bonnie covered three daily news stories on the remaining four days of the regular work week. Copies are attached. I am, however, aware that the assignment had been made somewhat in advance -Researching literally thousands of clips cover- ing 20 years is a very slow job. I took nine hours one night reading only one election The material had to be read and placed in proper order for use in what I consider to be a well balanced, thorough background of this subject (we have had comple- ments from both sides and from general citizenry) That takes time. I would have assigned the story in a different manner, i e, the reporter would have been given four days to research the story and at least one day for writing such an incredibly complicated piece. The reporter would not have had to take two, three or four hours out of three of the four days for re- porting, writing and waiting for editing on three stories Bonnie had about 20 hours for the same re- search, with 6 hours for writing -That Bonnie worked until 10 p in on Friday night after the rather disquieting meeting she had with you and Bob Early on the evening of Oct. 5 Regardless of the merits of the message you gave her, any rational person would have been upset at being placed on probation. That she continued working, that she subsequently finished the job that night, that she returned to the office the next morn- ing to begin her writing, shows a degree of profes- sionalism unmatched by some reporters I can name. -I believe you may have misunderstood my comments concerning the editing of this story-I was unaware at the time of the gravity of the situa- tion so did not attempt to be specific Although I did not begin working Bonnie's story in ernest until 4 p in., much of it was available much earlier I was tied up with problems on other stories in the ex- traordinary load of ROP copy that appeared in the same paper As you know, I believe in personally editing and handling all of my people's copy, but had to request assistance from you to update the tritium story by Grant Smith. I said then that I was already late in beginning work on the Bartak copy You also told me on Friday night that we would have no problem making the paper with the Bartak story if I moved it around 6 p.m I moved the story into the "one" file at 6 09 p.m After a discussion with you and Frank Lopez re- garding use of the story-and holding the sidebars Then, Bonnie and I worked on the story some more and I shortened it further It moved finally to the "one" file at 623 p.m, though I did call it up a couple of time [sic] to make minor changes and for reference I shall take any responsibility for late copy from Bonnie during the pendency of her assignment to my team If I am not able to cure the matter, I shall report same to you immediately On Sunday, October 14, a story written by Bartak about the Papago Freeway Election was published. On Octo- ber 15 Mayne wrote a memo to Armstrong in which he was critical of certain changes that had been made in the story after he had edited it. In addition, Mayne informed Armstrong in this memo that "[Bartak] did a good job of reporting and writing. She met the deadline I set" A copy of this memo was sent to Bartak. On October 25 a story about the Papago Freeway Election written jointly by Bartak and Don Lowery, an- other reporter working under Mayne's supervision, ap- peared in the paper as the lead story on page 1. The same day Mayne sent a memo to both Bartak and Lowery, with a copy to Early and Armstrong, stating that he was impressed by the story, that he thought they had done a "fantastic job of reporting and writing," that the story was "clean, accurate and understandable," and that it was-being quoted by several of the local TV and radio stations Mayne also stated that Bartak was "to be especially congratulated for developing this story from a vague tip over the weekend" and that he appreciated the many hours of Bartak's own time that she had spent in following the story. Immediately on receipt of Mayne's October 25 memo, Early, on October 26, summoned Mayne to his office and, in the presence of Respondent's director of employ- ee relations Eldon Case, spoke to him about this memo. 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Early told Mayne he was concerned about, Mayne's memos about Bartak's work performance because they were interfering with Early's effort involving Bartak and that Early expected that once he made a decision that the newspaper's editors would carry out the decision "precisely " Early warned Mayne that he would fire anyone who did not carry out his decision "precisely." Mayne pleaded ignorance of the situation involving Early and Bartak Early responded that Mayne's general knowledge of Bartak's situation should have been suffi- cient to put Mayne on notice about the seriousness of the problem and that it was not necessary for Early to have briefed Mayne officially. Mayne questioned the practice of not having been informed of management's wishes concerning Bartak, but assured Early and Case that he would not interfere with what Mayne characterized as Early "accomplishing the unmentionable " Case nodded Early stated it was essential that other members of man- agement support his decisions, explaining to Mayne that it made things difficult for Armstrong and Schatt when Mayne and other assistant city editors defended Bartak's work and work habits Mayne asked what Early thought were Bartak's problems because although Mayne knew she was on probation he had not been told by her regu- lar supervisor, Nilsson, what her specific work deficien- cies were and what, as a supervisor, Mayne should look out for Early listed Bartak's several deficiencies and as- sured Mayne that the purpose of Bartak's probation was not to fire her but to get her to improve her work as he thought she had the potential to become a leading re- porter The description of Mayne's meeting with Early and Case on October 26 is based on the testimony of Mayne and his contemporaneous notes of this meeting that were placed into evidence by the General Counsel without limitation and without objection. In crediting Mayne I have taken into account the fact that I have discredited him on another matter and that in certain aspects his ini- tial testimony was not consistent with his testimony given in conjunction with the EEOC action Neverthe- less, I have credited his testimony and the accuracy of his contemporaneous notes because when he testified about this meeting he impressed me, in terms of his de- meanor, as a sincere and reliable witness, whereas Early's demeanor was unimpressive Moreover, Eldon Case was not called on to corroborate Early's testimony, thus, I can only infer that his testimony would have con- flicted with Early's and been adverse to Respondent in significant respects. Lastly, although I have not credited Early's testimony, I feel constrained to note that certain significant aspects of it are without substance Early testi- fied that in reprimanding Mayne, he told Mayne that Mayne had written two complimentary memos to Bartak covering two stories that Early had written derogatory memos about to Bartak (Tr 1100) There is no evidence that Early ever criticized Bartak about the articles re- ferred to by Mayne in his two complimentary memos Moreover, there is no evidence that challenges Mayne's evaluation of the articles in question and Bartak's contri- bution to those articles Respondent offered no evidence that Mayne's compliments about Bartak's work contained in those articles were not warranted j Bartak's vacation As I have indicated supra, from early October through the first week in November, Bartak worked as urban af- fairs reporter under the supervision of two different per- sons Jack Mayne, who supervised her'work in connec- tion with the Papago Freeway Election, and Joel Nils- son, who supervised the remainder of her work. The Papago Freeway Election was held the first week in No- vember at which time Bartak planned to take a 2-week vacation In this regard during September and October she accumulated overtime hours, including company overtime hours, for which she was not paid Bartak wanted to take her overtime in the form of compensato- ry time off and apply it toward her vacation Bartak thought that her accumulated overtime-both company and statutory overtime-would amount to a week of comp time Respondent's personnel manager, Owens, tes- tified that at the time material to this case employees were eligible to use unpaid company overtime as comp time at the discretion of the department manager, but that the policy was that the department managers would only permit this type of overtime to be used as comp time if it was taken in close proximity to when it was earned. In other words, Bartak was not eligible to take all the company overtime she had incurred as comp time inasmuch as it had been earned several weeks prior to the time she wanted to use it as comp time There is no evidence that Bartak or other employees were ever in- formed of this policy Quite the contrary, the manner in which Supervisors Nilsson and Armstrong handled the matter of Bartak's comp time indicates that at the time of the events in this case Nilsson and Armstrong had either forgotten the policy or had never been told about it On October 29 Bartak notified Nilsson that she intend- ed to be absent on vacation from Monday, November 12, until Monday, November 26. She explained to him that "one week is comp time built up during the election and the other is accrued vacation time "30 On November 8 Nilsson asked Bartak to submit a breakdown of the unpaid overtime she was asking to use as comp time Bartak complied and the same day submitted a detailed memo to Nilsson that reveals that of the 27 hours of comp time that she was claiming, 8 hours were statutory overtime and 19 company overtime In the past Nilsson authorized vacation time and comp time without checking with City Editor Armstrong, but he had never encountered a situation where someone was asking for so much comp time. In view of this cir- cumstance, during the first week of November at a su- pervisors' meeting, Nilsson told Armstrong that Bartak wanted to take 2 weeks of vacation and use her comp time for 1 week. Armstrong stated he had no problem with Bartak using her accrued vacation time for 1 week, but with respect to the comp time she wanted to use for the second week Armstrong stated he knew she had been paid for some of her overtime work and doubted whether she had sufficient comp time to justify another week off Armstrong told Nilsson he wanted to discuss 30 The record establishes that when Bartak worked, this overtime she notified Nilsson PHOENIX NEWSPAPERS 67 the question of Bartak's second week of vacation to be sure she had a sufficient amount of comp time to justify the second week 31 As a result of Armstrong's comments expressed at the supervisory meeting, Jack Mayne, who was present at that meeting, notified Bartak by memo that. [Armstrong] says that he will not approve comp time for your second week off He and [Nilsson] will discuss it further with you Unless you have ad- ditional vacation time, you will have to return to work on November 19. That same day Bartak sent a memo to Mayne informing him she had 2 weeks of accrued vacation time left and wanted to take 2 weeks of vacation from November 12 to 26 using her accrued vacation time Mayne verbally told her he approved this request and initialed her memo indicating his approval Mayne also verbally informed Bartak that she must check with Nilsson to see whether he concurred because now that the Papago Freeway Election coverage was coming to an end Bartak would no longer be working for him when she returned from vacation but would only be working for Nilsson On Friday, November 10, Bartak spoke to Nilsson about her request for 2 weeks of vacation from Novem- ber 12 to 26 Nilsson told her that Armstrong did not want to grant her comp time for the overtime she worked and had not been paid for and told her that if she wanted to take 2 weeks of vacation the second week would have to be based on her accrued vacation time. Bartak informed Nilsson that because she had 2 weeks of accrued vacation she would use it for her vacation and that she would work out the matter of the comp time when she returned from vacation Nilsson stated she should speak to Armstrong about whether she was enti- tled to the comp time she was claiming 32 Bartak went over to speak to Armstrong about the matter but because it was the end of the afternoon and Armstrong was too busy to speak to her Bartak left on her vacation without speaking to Armstrong.33 31 The description of the reason Armstrong gave to Nilsson for deny- ing Bartak 's second week vacation is based on the credible testimony of Nilsson and Mayne and Armstrong all of whom agree that Armstrong at no time mentioned a company policy that prohibits an employee from using his or her comp time for time off, if it was earned too long before the requested time off 32 The description of Bartak's conversation with Nilsson is based on Bartak's and Nilsson's testimony I recognize Nilsson did not testify about this-conversation when he testified in the Federal district court EEOC proceeding Nevertheless, I have found that the conversation took place as described above because Nilsson's testimony was corroborated by Bar- tak's Bartak impressed me, as I have already indicated , as a sincere and reliable witness and, in terms of demeanor , Nilsson impressed me as a conscientious and sincere witness when he testified before me in the in- stant proceeding 33 Armstrong testified that he spoke to Bartak prior to the time she left for vacation and that he told her that Respondent's policy did not allow her to accumulate comp time based on overtime earned several weeks previously Bartak, who in terms of her demeanor impressed me as a more credible witness than Armstrong, specifically denied ever having such a conversation with Armstrong Moreover, I find it incredible that Armstrong, who did not give this reason to Nilsson or Mayne at the su- pervisors meeting , would during the same period of time have given this reason to Bartak Likewise , I find it incredible that if such a conversation had taken place Bartak would not have told Armstrong , as she had told Bartak was absent from work on vacation from Monday, November 12 to Monday, November 26. On November 19, as described infra, Bartak was assigned to a new beat with a new supervisor, Assistant City Editor Schatt. On November 19 both Schatt and Armstrong asked where Bartak was as they thought she was due back to work from her vacation, and Schatt had assigned her work Nilsson, who had forgotten that Bartak had previously indicated to him that she was going to use her accrued vacation time to take a second week of vacation, told Armstrong and Schatt that he thought Bartak was supposed to have been back from vacation. Nilsson, Schatt, and Armstrong all informed Early that they had no idea where Bartak was and thought she was supposed to be back from vacation. Mayne, as soon as he heard that no one knew of Bartak's whereabouts, promptly no- tified Early that after Armstrong's refusal to allow Bartak to use her comp time for a second week of vaca- tion that she had chosen to use vacation time that she had accrued for the second week and was currently taking her second week of vacation and that Mayne had approved her request for the second week and showed Early Bartak's written request of November 9 that he had initialed Early questioned Mayne's authority to do this stating that Bartak had been working under Nilsson's supervision On her return from vacation on Monday, November 26, Bartak received the following written reprimand from Early for being absent without authorization For two days the week of November 19, you were considered absent without authorization As it turns out I found out late Tuesday night that you were on vacation Howard Armstrong, Paul Schatt, Joel Nielson [sic], Clara Toon, and I all expected you to return from vacation and show up for work the morning of November 19. There was an assignment waiting for you on the City Desk when you came to work on November 19 and as a result of your not show- ing we had to assign that work to another person on overtime. Since none of the people you work for knew you were taking a second week of vacation it is clear that you did not follow the procedures As a matter of fact, you only ordered one week's vacation pay And then you took two weeks vacation It was clear that the compensatory time off that you requested was denied and that is why everyone expected you to show up for work on November 19 There is a note however, from you to Mayne and then from Mayne to you in which you requested an additional week's vacation and Mayne approved it. The problem with that is that Mayne was not in a position to authorize you to take a week's vacation Mayne and Nilsson , that if she could not use the comp time as vacation time she would use her accrued vacation time for her second week of vacation 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD since your immediate supervisor at that time was Paul Schatt and the person who does the vacation scheduling is Howard Armstrong I want to empha- sis [sic] that you did not follow the right procedure and that you compounded that by not telling Clara Toon that you were going to take a second week of vacation for our records. You are well aware of the vacation procedure around here You have been here a long time and have worked under those procedures for a long time. I consider your conduct seriously detrimental to the good working order of our news room You have consistently and deliberately ignored the work rules of the news room for a number of years now. This is an example of what I am talking about and your constant failure to the deadline is another ex- ample of what I am talking about I want you to know that failure to show up for work without authorization is an extremely serious matter, one that could justify immediate dismissal. I further want you to know that this matter will be considered during your next performance evalua- tion. k Respondent reprimands Bartak during her probationary period On November 26 when she returned from vacation Bartak was notified that she had been reassigned from the urban affairs beat to a combined general assignment and urban affairs beat under the direct supervision of As- sistant City Editor Schatt. There is no contention that this reassignment was made because Bartak's work was unsatisfactory or to discipline Bartak or that the change in job assignment was illegally motivated During the period of Bartak's first probation, October 5 to January 4, 1980, she received several written repri- mands as follows The first one was the October 10 reprimand, already discussed supra, from City Editor Armstrong for missing the first edition with a story. The next one was issued by Early on November 10 that Bartak received when she returned from vacation. This reprimand commences as follows Your freeway story on the top line November 10 is a good example of what I have been talking about in terms of confusing copy you have been produc- ing The top of the story is very unclear. I think this kind of copy is what has contributed to the great confusion about the freeway issue in this town Let's go through the story point by point At- tached is a copy of the story with numerical nota- tions Early, at this point, for two single-spaced typed pages criticized Bartak's writing of this story and ended by complimenting her "for being on top of that report and breaking the story first," but then goes on to complain that this was all for nothing because "the copy is so con- fusing nobody understands what is happening" and ad- vised Bartak "this is not the kind of work that we expect from journeyman reporters." On December 3 Bartak received another written repri- mand, this time from Schatt, for leaving an assignment without telling anyone The circumstances surrounding this reprimand are as follows. On December 3 Schatt as- signed her to write the obituaries because the reporter who normally did this was absent Bartak had previously scheduled an interview for immediately after lunch that day, so at about 11.45 a.m she went to Schatt's desk to tell him She discovered Schatt had already left for lunch, so she went to lunch and immediately after lunch went on her interview and did not return until later that afternoon She did not tell anyone on the city desk that she would be absent During the period Bartak was absent from the obituary desk, other personnel had to staff it and service the public. When Bartak returned later that afternoon she found a written reprimand from Schatt criticizing her for an unauthorized absence. Bartak first finished up all the obituraries for the day and then explained to Schatt the reason for her absence. That same day Schatt wrote a second memo to her acknowl- edging that she had completed all the obituaries "on time and according to style," and indicated that if she had in- formed either Schatt or someone else on the city desk that she had to be absent due to a previously scheduled interview there would not have been any problem cre- ated by her absence On December 11 Early issued a written reprimand to Bartak criticizing a story she had written that morning in these terms Your story on the Papago Freeway this morning is another example of imprecise writing that leaves the reader more confused than enlightened I do not un- derstarid your inability to say clearly and straight away what you mean Early then listed for Bartak's benefit, in detail, 14 sepa- rate instances in the story where imprecise and cumber- some language was used and concluded the reprimand with the statement, "it does not seem to me, Bonnie, that you are making any progress in your writing. Please con- centrate in your writing on saying straight out and as simply as possible what you mean to say and use the words that express exactly the meaning that you are trying to convey " The reprimand was delivered that day to Bartak by Schatt, who had edited the story in question and who had been sent a copy of Bartak's repri- mand Schatt informed Bartak that he did not agree with the content of Early's reprimand, that he thought the story was fine, that it was communicative, and that he had told this to Early and had given Early a note to that effect In this regard, on December 11, Schatt sent Early a memo about Early's criticism of this story stating, "I did not think the story was that bad, just mediocre I'm afraid the criticism has to be directed at the editing as well as the writing, then, because I let it, go that way " On December 21 Howard Armstrong issued a written reprimand to Bartak about talking to other workers during working time, as follows: PHOENIX NEWSPAPERS On Tuesday of this week I had to tell you once again to stop talking to people in the newsroom and to start working As you know, I have talked to you about this several times in the past year You apparently have chosen to ignore the repeated warnings against this disruptive practice On Tuesday morning, while I sat at the city desk, I watched as you spent one full hour away from your desk talking to several people in the news- room You had been talking to Jack Mayne for sev- eral minutes as he was reading copy at the news- desk when I told you to get busy on the story you were supposed to be writing I know that you were not talking to Mayne about the story you were sup- posed to be working on or about the one he was reading on the VDT I have told you repeatedly in the past year that you cannot take your time and the time of others in talk unrelated to your immediate work. I do not understand why you choose to ignore my warnings and directives on this. I can only tell you again to stop this practice It takes time that neither you nor those you talk with have to waste A copy of this memo will be placed in your per- sonal file On receipt of this reprimand Bartak wrote on the bottom that "Mayne had called me over to discuss a story with him on this occasion " Bartak credibly testified that on the day in question when she arrived at work Mayne called her over to the news desk where he was working and talked to her about a national story he was consider- ing using that involved a topic Bartak had been covering locally and that during their conversation Armstrong in- terrupted and called her over to him and asked what she was working on that day and after Bartak replied, told her to get back to work. On observing Bartak's comment on Armstrong's December 21 reprimand, Managing Editor Early asked Mayne to comment on the reprimand insofar as it involved Mayne On December 28 Mayne, in reply, sent this memo to Early I only vaguely remember the circumstances men- tioned in Howard's memo of 12-21-79 in re Bonnie Bartak I did call Bartak to the news desk where I was working on computer copy for the Sunday econo- my section I asked her advice on a downtown re- development of central cities story from the Chris- tian Science Monitor service I was considering for use inside (The copy was then squeezed out of the paper by the incredibly tight section-but that is an- other story.) We did then chat about other things, but I have no idea what about. I doubt if all of the talk con- cerned business alone. I must admit that I was unaware of any admon- ishment by Howard since there were a number of people laughing and joking while gathered around the front of the office It was dust after Howard came to work at 10 or 10.30 a.m. The place is usual- ly a bit noisy at that time of the morning. 69 Howard did not inform me that he needed Bartak to work on something and that I was aiding in keeping her from work. It is undisputed that there were several other reporters and editors talking among themselves during the same period that Bartak and Mayne were talking Likewise, it is also undisputed that it is common practice when one of the editors discusses business with an employee or em- ployees that when they finish talking about their business they will talk about nonbusiness matters before returning to work.34 On December 23 Early issued Bartak a written repri- mand concerning a story dealing with pornography in which he states "your story on pornography dis- plays the same kind of writing and reporting errors that we have been trying to get you to overcome for some time now. These kinds of writing and reporting flaws are becoming a more and more serious problem because of the upgraded standard of writing that we are beginning to achieve throughout the paper." Continuing, Early stated that the most serious writing and reporting flaw in the story was when, by the sloppy use of language, Bartak had left the inference that a lawyer who repre- sented one of the bookstores was a pornographer Also, Early pointed out several other instances of sloppy re- porting in the story and imprecise writing and concluded by stating- I and others for the past several months have been pointing out over and over again the deficiencies in you stories and we also have been pointing out ways to improve There does not seen to be any improvement In fact, your work seems to be get- ting worse This story, which incorrectly identified [an attorney] as pornographer, certainly is an exam- ple of regression rather than improvement. Early considered this story to be so poorly written, in particular the part of the story that inferred that the lawyer representing the bookstores was a pornographer, that he also placed a copy of the reprimand in the per- sonnel file of Managing Editor Armstrong who was the person who primarily edited the story and presumably should not have permitted the article to be published in this condition. Bartak acknowledged receipt of this repri- mand by writing the following comment on the repri- mand that she returned to Early "I am acknowledging this only as a receipt and not in agreement. If you had spoken to me about this, you would find that some of your points are in error. I would be happy to explain fur- ther should you wish me to do so " Early asked Bartak what she meant by this notation Bartak told him she 34 I note that on the subject of Bartak talking to other reporters during working time Armstrong testified that late in 1979 four different report- ers-Swanson, Collier, Kelly, and West-complained to him that Bartak was interfering with their work by talking to them As I have indicated supra, Armstrong, when testifying about Bartak's work performance and habits, was in general an unimpressive witness in terms of his demeanor and I received the identical impression when he testified about this sub- ject I also note that Collier, the only witness whom Respondent called in an effort to corroborate Armstrong's aforesaid testimony, failed to do so (Tr 1687-1691) , 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would rather explain in writing and would get back to him Bartak never did respond to Early's criticism of this story nor did she ever respond to any of the other repri- mands issued by Early concerning her poorly written stories Instead, Bartak consulted with Union Representa- tive Hatch about these reprimands and on January 2, 1980, Hatch wrote Eldon Case, the Respondent's em- ployee relations director, as follows. This is in response to the current probationary status of Bonnie Bartak and the recent flood of criti- cal letters directed at her. It is clear that all of Bartak's problems' date from February 9, 1979 when she led a group of women into a meeting with Managing Editor Early to air the women's concerns Matters worsened when she filed an action with the EEOC on August 7, 1979 and since have steadily deteriorated. The complaints against her, without exception, are shallow, misleading and/or dust plain inaccurate I have advised her not to answer further. In reply by letter dated January 4, 1980, Case emphati- cally denied that Respondent, in reprimanding Bartak and placing her on probation, was motivated by the con- siderations set forth in Hatch's letter. 1 Bartak's January 4, 1980 evaluation On October 5, as described supra, Bartak's work per- formance was evaluated by Managing Editor Early and was found to be so unsatisfactory that he placed her on a 90-day probation, which was scheduled to end January 4, 1980, on which date she would be reevaluated During the probationary period Bartak at different times worked under the direct supervision of Editors Nilsson, Mayne, and Schatt who in turn worked under the supervision of City Editor Armstrong. On January 4, 1980, Early met with Bartak and con- ducted a review of her work performance for the 90 days she had been on probation None of the editors who directly supervised her work during this period were present and there is no evidence that Early, prior to for- mulating his evaluation of Bartak's work performance, spoke to any of them about her work performance, other than Mayne, who, as I have found supra, was reprimand- ed by Early for defending and complimenting Bartak's work performance Nor is there evidence that Early con- sulted with Armstrong about Bartak's work performance during her first 90 days of probation. As a matter of fact the record establishes that the basis of Early's evaluation of Bartak's work performance for this period was pri- marily his own personal observation of Bartak's perform- ance In this regard, Early testified that he personally did an in-depth scrutiny of Bartak's work performance during this 90-day period because he was the person who placed her on probation, thus he felt obligated to person- ally evaluate her work Admittedly, as I have previously found, this was the first and last time that Early ever personally evaluated the work performance of an em- ployee who he did not directly supervise The evaluation form prepared by Early, and signed by both Early and Armstrong, rated Bartak substantially worse than Early's October 5 evaluation Early rated Bartak's performance "unsatisfactory" in "Quality of Work" and "Degree of Cooperation", " marginal" in "Technical Knowledge & Ability," "Initiative," and "Quantity of Work", and "average" in "Decision Making Ability," "Carries Out assignments," "attendance and punctuality," and "personal appearance as it relates to the fob " In the space on the evaluation form reserved for "overall evaluation and comments," Early wrote, "reporting and writing has worsened substantially since last Review Unreliable and insincere " And, in the space entitled "what goals and objectives were established for the employee during the previous review? Were they achieved?" Early wrote, "Failed to improve reporting techniques, failed-to increase quantity of work Failed to improve lead writing Failed to improve speed. Some im- provement in meeting deadlines Failed to try sincerely to improve." Those present at the evaluation interview conducted on January 4, 1980, in addition to Bartak and Early were City Editor Armstrong, Union President Swanson, and Early's secretary, Linda Barnett. Bartak took contempo- raneous notes of this meeting, which the parties offered into evidence The description of what was stated during this meeting is based on those notes plus certain portions of Early's testimony that are consistent with the notes Early told Bartak that since her October 5 evaluation he had paid personal attention to her work and in his opinion it was worse during these 3 months than ever before in her approximately 7 years of employment He stated that her writing had gotten substantially worse be- cause previously her problem had been in composing lead paragraphs but after paying daily attention to her stories Early had concluded that she had a more serious writing problem, her stories were incomplete in that she was omitting material, thus leaving the impression that her stories were biased.35 Early criticized Bartak for using sloppy language and gave as the most serious ex- ample of this the story where she had left the impression that an attorney, who represented a group of bookstores, who were being sued as distributors of pornography, was himself a pornographer Early indicated that this was such a serious matter he had reprimanded the editor of as Early testified that he had no idea how long this recently discovered flaw in Bartak's writing had existed He explained that such a flaw in a reporter's writing is not easy to see because , "unless you really examine it [referring to Bartak 's stories] this is something that is not clearly evi- dence as you read something It's clearly evidence as you begin to ques- tion how did we get here It's symptomatic of a reporting lack and its very difficult to uncover, and it's not easy " When asked why is this type of a flaw in a person's writing difficult to uncover, Early testified, "be- cause you really have to study it, you really have to know what these stories are all about Not everybody can do that and the casual reader, I don't think , would ever notice " He testified that the reason he had not discovered this flaw in Bartak 's writing years ago was , "because I did not look at her work that hard I don't look at anybody's work that hard That is not my fob " Unexplained in the record is why the several editors who were directly, responsible for supervising Bartak's work product had not in all the years she had worked for Respondent never noticed this alleged flaw in her work PHOENIX NEWSPAPERS the story and asked Bartak if she recognized the serious- ness of this. Bartak answered in the affirmative. Early told Bartak he was puzzled about the fact that her work had declined so rapidly because she had "a lot of talent and ability" that was not reflected in her work performance and that the reason for this, Early stated, was that Bartak had an "attitude problem " Early stated Bartak was "absolutely unreliable" and in support of this pointed to her difficulty in meeting deadlines that Early admitted had improved during her probation, her con- tinuing talking to other reporters during working time, her failure to inform her supervisors about her vacation plans; her leaving the obituary desk unattended for 2-3 hours without telling anyone where she had gone and also noted that while Supervisor Schatt had stated she had finished all the work on that desk in a timely manner that Early disagreed with Schatt; her delay in delivery- ing the transcript of the meeting between Associate Pub- lisher Tully and the women reporters despite her prom- ise to do so; and her failure to answer Early's several reprimands about her work despite her promise to do so In connection with the last indicia of Bartak's unreliabi- lity, Early indicated he was angry with Union Repre- sentative Hatch for communicating with Employee Rela- tions Director Case, rather than directly with Early, about Early's reprimands of- Bartak's work and her pro- bation Early told Bartak that Hatch's letter was written "as if there is some kind of devious motive here impugn- ing my motives as if I were trying to get you " At this point Early informed Bartak that he had no confidence in her, that by nature he thought she was un- reliable and that not only was she unreliable but that her work product was "slipping" and that her insincerity was demonstrated by the fact that she tape recorded meetings secretly, that she did not respond to his criti- cisms despite her promise to do so and that she was ac: cusing him of harassing her, that she had taken the posi- tion that there was some kind of devious scheme and that Early was harassing her because she was a woman. Early stated he did not engage in such conduct and that her accusation constituted the same kind of sloppiness and inaccuracy that was characteristic of the stories she wrote Continuing, on the subject that he believed Bartak was mistaken in her assumption that.Early was harassing her, Early accused Bartak of engaging in reprehensible con- duct by making this accusation and compared it to the accusation she had made during her earlier evaluation when she accused Early of placing her on probation be- cause of her union activities At this point Early yelled at Bartak, stating that he did not think either Early or the editors could rely on her and that he had reviewed her work because she had talent and was a good reporter but that while he had tried to help her she in turn had impugned his motives Early declared that he felt Bartak had used all "these devious kinds of things" to cover up her short comings and commented, "it's as if you are trying to build yourself up as Joan of Arc for women's rights " In this last regard Early expressed the opinion that it was not Bartak who was the leading exponent of women's rights at the newspaper but that Associate Pub- lisher Tully had done more for the rights of women than 71 Bartak or anyone else Early then stated that other em- ployees who had been active in the Union or who had filed 'charges with the EEOC were 'not being harassed and that the reason Bartak was being disciplined by Early, and the others were not being disciplined, was be- cause of Bartak's work performance Early stated that he did not care whether Bartak car- ried out her "causes" but' that her work performance could not be unsatisfactory and that he had lost patience with her, thought she was a "personally insincere and unreliable person," that he was finished trying to help her as he had lost his respect for her, that the Employer had 6 years invested in her that was a lot of time and effort, that ' he thought she had a lot of talent because there was a time when she was a "rising young star," but that all that was gone because she lacked "a positive atti- tude " Early told Bartak he did not feel she could change because he did not feel her personality would allow her to change and that because he could not help her inasmuch as it was obvious that they were not hit- ting it off right that he was going to turn her over to someone else who would watch her work and that in view of. her past seniority with the Company and the talent she had demonstrated in the past, he would extend her probation for another 3 months and she would be as- signed to the night police beat, but that if at any time one of the editors told him she was not trying he would immediately terminate her Early stated he did not want to discharge her because they had a lot of time invested in her, that she had a lot of talent, but that she was throwing it away and was not going to improve as long as she was insincere. The meeting concluded with Early reading off the several ratings and comments that he had marked down on Bartak's evaluation form m Bartak's reassignment to the night police beat and her discharge On January 4, 1980, shortly after Bartak's evaluation that resulted in an extension of her probation and her re- assignment to the night police beat, Bartak met with City Editor Armstrong to discuss her new assignment 36 Armstrong started the meeting by saying he agreed with virtually everything that Early had previously said to Bartak and agreed with Early's evaluation of her work performance. Armstrong stated he thought Bartak had the talent to do anything she wanted to do in the paper, but told Bartak, "I believe you have made your work secondary to your cause and I'm not sure what your cause is but I believe you are pursuing it actively in the newsroom," and told Bartak he had observed her pursuing her "cause" in the newsroom during the past year Armstrong told Bartak that the reassignment to the night police, beat was meant to "shock" her into the real- ization that her work had gone down, that management thought she could do good work, and that if by assign- ing her to the night police beat it would break some of 36 The description of this meeting is based on the contemporaneous notes taken by Bartak that were placed into evidence by the parties to this proceeding 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her habits and retrain her it would be worth it. Arm- ,strong indicated that Bartak's gregarious personality probably helped her on her beat but that it was disrup- tive in the newsroom and that he could get 20 people to agree with his assessment, and that if Bartak wanted to continue to work for Respondent she would accept what he was saying to her and what Early had said as an at- tempt to rehabilitate her, but that he did not think she would do that Rather, Armstrong expressed the opinion that Bartak felt that Armstrong was also part of 'a dark plot to banish her from the newsroom and asked if she believed what he was saying Bartak replied, "I think you are sincere in what you say." Armstrong ended this topic by stating, "I think you are a valuable reporter who has her priorities mixed up" and stated that if Bartak placed her reporting and the reader first instead of hei' "causes" that he thought Bartak could "turn around real fast " Armstrong then discussed Bartak's work schedule and indicated she would work from 3.30 p.m. to midnight and would be given 3 weeks to break in on the night police beat and would start covering it on her own either January 20 or 27. Bartak, after being broken in for 2 weeks by the out- going night police beat reporter, commenced her night police beat assignment and worked on this beat until April 4, 1980, when she was discharged. She worked Tuesday through Saturdays from 3.30 p.m. until 12 mid- night. She worked primarily out of the pressroom at the main police station in Phoenix, Arizona, where there is a multichannel police radio' Her main responsibility was to cover 'street crime, which she did by monitoring the police radio and covering the various newsworthy crime or fire stories that occurred each night After she gath- ered the information pertinent to a story she submitted it to the night rewrite man in the paper's newsroom by either teletyping it over to him, dictating it to him over the phone, or hand delivering it. After 6 p in , the staff at the paper's newsroom usually consisted of the night re- write man, and the night city editor, although on occa- sion a photographer or the managing editor was there Bartak testified that the night police beat was probably the least desirable beat for, a reporter and was generally used as a training ground for beginners. Her testimony in this respect was corroborated by Assistant City Editor Schatt who testified that most reporters , regarded the night police beat as an undesirable one. The person who supervises the night police beat is the night city editor Jack Kowalec held this position during Bartak's tenure until the first week in February 1980 when he was reassigned to the position of night rewrite man. and his place was taken as night city editor by Susan Augsburger who held the position from early Feb- ruary until Bartak's discharge Augsburger supervised Bartak's work 3 days a week and on the 2 days Augs- burger was off duty, which days Bartak worked, Bar- tak's work was supervised by Earl Zarbin who acted as night city editor 2 nights a week During the period when she was employed on the night police beat, Bartak received one written reprimand that was issued to her on February 13, 1980, by Night City Editor Augsburger under these circumstances On February 13 Bartak covered a stabbing incident that took place at a bus station She arrived at the scene about 8.30 p m and interviewed the witnesses to the incident She then phoned Kowalec, the night rewrite man, and asked if she should go to the hospital where the victim had been taken or to the police station in order to wait for the victim's name to be released Kowalec asked Augs- burger who instructed him to tell Bartak to go to the police station and wait there Bartak did this and from the police station between 9 and 9 30 p.m. phoned in a description of the events to Kowalec, who drafted the story himself by typing it into the video display terminal (VDT), making changes in sentence structure, syntax etc , and in general polishing it for publication Then at about 9.45 p in Bartak, still at the police station, learned the identity of the victim and phoned this information into the newsroom Augsburger then edited the story and testified that because it had been submitted so late that she let it go as is in order to be able to make the first edition Kowalec testified that in cases of late break- ing stories such as the instant story he would often take the notes dictated by the reporter over the phone and, using the VDT, in effect write the story even though the reporters would still get credit for the story He further testified that although Ausburger could have thought that this particular story was written by Bartak, rather than by Kowalec, it was highly unlikely due to the late breaking nature of the story and because Augsburger ob- served that Kowalec was using the VDT to, take the story from Bartak.37 Later that evening, after the stab- bing story was printed in the first edition, Lowalec ob- served that there was a copy of the story on Augs- burger's desk and that she was writing a memo. The memo, which is dated February 13, 1980, was issued by Augsburger to Bartak and signed by Augsburger. It in- forms Bartak that the stabbing story had been changed quite a bit between editions and explains what was wrong with the story as originally written and ends by stating that "the art [referring to the photo which was published with the story] was on the page downstairs before we had the story in type Speed was lacking If the art had not been ready, we would have hid the story until the final edition Please try to work on speed " In her 8 years of working for the paper this was the first,critical memo Augsburger wrote to an employee even though as chief of the copy desk she had super- vised several employees She testified that the reason she wrote the memo was that "I felt so strongly about the story, the way it was written . as her immediate su- pervisor it was my job to explain to her why it was not a good story." She testified that she was not prompted by higher management to write this memo of reprimand and testified that Managing Editor Early did not speak to her about writing it But when questioned closely about this subject, Augsburger seemed to be visibly uncomfortable, as if she was concealing something, and she evasively testified that she did not remember for sure whether 37 Augsburger testified that she had no knowledge that Kowalec was responsible for writing this story I reject her testimony because through- out the entire time she was testifying Augsburger was an extremely un- convincing witness whose demeanor left me with the impression she was not telling the truth PHOENIX NEWSPAPERS 73 Early had anything to do with the issuance of this repri- mand Reluctantly Augsburger admitted that before writ- ing the reprimand she had read the story with Early, but testified that she did not remember who initiated the conversation about the story. Early, on the other hand, specifically testified that it was Early who made the changes in the stabbing story for the final edition and that it was Early who suggested that Augsburger write the February 13 reprimand to Bartak In view of the foregoing, including my observation that Augsburger was dissembling when she testified about the preparation of the reprimand she issued to Bartak, I find that Augs- burger issued the February 13 reprimand to Bartak be- cause Early directed her to do so and that but for this would not have written this reprimand. As indicated supra, Bartak's probation was extended by Early on January 4 until April 4, 1980. On April 4 Bartak's performance for the period was reviewed by Early in the presence of Augsburger and other wit- nesses 38 After outlining what had taken place previous- ly in connection with Bartak's probationary status, Early stated. I have, in the last couple of days, checked with the people on the city desk and have heard what they have to say about [Bartak's work performance], and in my opinion, after talking to them, that your work has not improved at all As a matter of fact, that your enterprise has declined. And for that reason, on the basis of what I told you before about trust and unreliability, that unless we get immediate and substantial improvement . . so that your work would be that of what we consider to be a compe- tent journeyman you would be terminated. And I don't think your work has reached those levels so that we are going to at this time terminate you. Bartak asked what specifically there was in her stories or other conduct that displeased Early. Early refused to get into any specifics, stating to Bartak that "other than to say that in the analysis of your work that nobody consid- ered that your work has improved at all and that in a lot of respects it has declined, particularly in the area of en- terprise reporting." Early stated that Armstrong had told him that in her last 3 months she had only written, one enterprise story Bartak asked why, if her work wa un- satisfactory, she had not been told about it before as in the last 3 months Augsburger had only spoken to her once about something that had displeased her Early, in effect, responded that in his judgment supervision had previously given her numerous and substantial critiques to which she had not responded. n An examination of the reasons that ostensibly triggered early's decision to discharge Bartak As described supra, during Bartak's January 4, 1980 performance evaluation, Early notified her that he had extended her probation for another 3 months and intend- ed to turn thejob of evaluating her work for this period to other persons and that Early would stay out of the evaluation process And, during Bartak's April 4, 1980 termination interview Early informed Bartak that, as he had previously told her, he had in fact stayed out of the evaluation process which had resulted in her discharge and had relied on the recommendations of "the people on the city desk" in deciding to discharge her I shall now examine the reasons Early ostensibly relied on for discharging Bartak During the time material there were three night city desk editors who were continuously connected with Bar- tak's work as a night police beat reporter, Night City Editor Augsburger who supervised Bartak's work Tues- day, Wednesday, and Thursday, and Night City Editor Zarbin who supervised her work Friday and Saturday 39 Augsburger and Zarbin were responsible to City Editor Armstrong who was in charge of the operations in the newsroom, but was not present there during the night time hours when Bartak usually worked. Early testified that on or about April 1 he spoke to Augsburger and Armstrong and asked them to give him memos stating what they thought about Bartak's work performance and that on April 1 they submitted these memos to him This testimony is contradicted by Augs- burger who testified that she did not speak with Early about Bartak's work during the period she supervised Bartak and that it was Armstrong, not Early, who asked her to prepare a written evaluation of Bartak's work under her supervision and that on April 1 she prepared such a memo and submitted it to Armstrong, not Early Early testified he did not ask Zarbin for an evaluation of Bartak's work performance because he thought Zarbin did not have sufficient contact with Bartak's work so as to be in a position to evaluate it. This testimony is inher- ently implausible because Zarbin supervised Bartak's work during this period for 40 percent of her working time and was in a position during part of the 3 days he was not supervising her to observe some of her work Zarbin testified that during the period he supervised Bar- tak's work as night police beat reporter, that she per- formed satisfactorily, that he found her helpful and always ready to do the work asked of her and on some occasions she did more than expected, and that he had no problems with her work and that her work needed no more editing than other reporters whose work he edited during that period In deciding that Bartak's work during her last 90 days of probation warranted her discharge, Early testified he reviewed Bartak's past record of employment that had resulted in her being placed on probation in the light of the April 1 memoranda submitted to him by Augsburger and Armstrong Augsburgers' April 1 memo that was submitted to Armstrong, not Early, stated that during the period Augsburger supervised Bartak that Bartak did not 96 The description of this meeting herein is based on the transcript of a tape recording of this meeting introduced into evidence by the General Counsel without objection a9 Although Zarbin did not supervise Bartak 's work Tuesday through Thursday, he was, during those 3 days, in a position to observe some of her work product on those days because he worked at the city desk as an assistant editor for over 50 percent of the time Bartak worked 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD produce a single enterprise story despite the fact that on five separate occasions Augsburger spoke to her about producing such stories, and that once Bartak submitted a story a half an hour later than the time Augsburger re- quested that it be submitted This memo was submitted in response to Armstrong's request that Augsburger draft a report evaluating Bartak's work performance under her supervision In support of her reference in her April 1 memo that Bartak failed to submit enterprise stories, Augsburger tes- tified that Bartak did not produce one such story despite several requests by Augsburger Bartak, on the other hand, testified that while working on the night police beat she produced several so-called enterprise type sto- ries and described them in detail one about a school for police detectives, two others about the city council's ef- forts to fill the vacant position of police chief, one about a newspaper editor who was getting an award, another about the efforts of the police supervisors to get higher wages; and three or four about the police slowdown. Bartak further testified that on only two occasions did Augsburger speak to her about so-called enterprise sto- ries Once when Augsburger asked her to do a story about the use of computers in police cars, Bartak told her that this story had been done already by the paper and Augsburger in response told Bartak to look around for other feature stories. And another time Augsburger asked her to do a feature about the use of police helicop- ters but when Bartak tried to do the story she was not able to get the cooperation of the police. I am of the opinion that Bartak was the more credible witness be- cause in terms of demeanor she seemed to be a sincere witness whereas Augsburger did not. It is for this reason that I reject Augsburger's testimony that despite several requests to produce enterprise stories Bartak did not produce one such story for Augsburger. Rather, I find that Bartak produced several such stories Regarding the late submission of copy, as I have indi- cated supra, Augsburger's April 1 memo mentions only one such incident where she asked Bartak to submit a story about the police slowdown by 10 p in and it came in later During the hearing Augsburger expanded con- siderably on this She testified that Bartak's copy was "always" and "consistently" submitted to her late and testified that on a dialy basis Bartak's copy would show up at her desk just a few minutes before deadline, and because of this Augsburger did not have time to careful- ly edit Bartak's copy but had to run it right on through I am persuaded that, if Bartak's work performance was so unsatisfactory in this respect, Augsburger would have commented on it in her April 1 memo Augsburger failed to explain this omission She also testified that twice Bartak submitted copy after the deadline. Once involving the February 13 stabbing incident, referred to supra, and another time involving a story about an injured fireman Neither of these episodes was mentioned in her April 1 memo evaluating Bartak's work performance, nor did Augsburger explain the reason for the omission Bartak credibly testified Augsburger did not indicate to her ver- bally or in writing that she was dissatisfied with Bartak for missing deadlines, other than the written reprimand about the missed deadline concerning the stabbing inci- dent Under all the circumstances including my impres- sion that based on her demeanor Augsburger was not an honest witness, I am persuaded that Augsburger's criti- cism of Bartak for failing to meet deadlines and for tardi- ness in submitting copy, expressed for the first time at the hearing, was a fabrication I recognize Bartak's Feb- ruary 13 stabbing story missed deadline But, as de- scribed in detail above, the details surrounding the sub- mission of this story and Augsburger's reaction warrant the inference that due to the late breaking nature of the story Augsburger placed no blame on Bartak for missing the deadline, but only at Early's insistence reprimanded Bartak Thus, as I have found supra, Augsburger's repri- mand was written only at Early's direction and, in addi- tion, Augsburger failed to mention this incident either di- rectly or even by implication in her April 1 appraisal of Bartak's work performance Augsburger failed to explain why this incident was omitted from her April 1 evalua- tion I am convinced that, when viewed in terms of the whole record, the reason Augsburger did not mention the February 13 incident in her April 1 evaluation of Bartak's work performance was that she realized that there were extenuating circumstances surrounding this story and had initially reprimanded Bartak only because of Early's insistence. When asked to describe her complaints about Bartak's work performance, in addition to listing Bartak's alleged failure to write enterprise stories and her late copy, Augsburger also testified that "a couple of [Bartak's] sto- ries were not well put together at all " But, when later describing why Bartak did not perform competently under her supervision, Augsburger significantly omitted to mention unsatisfactory writing Likewise, during the EEOC Federal district court proceeding Augsburger sig- nificantly failed to attribute poor composition to Bartak when enumerating her complaints about Bartak's work Also, this alleged failing was omitted from Augsburger's April 1 written evaluation of Bartak's work performance Under the circumstances, I am convinced that Augs- burger's criticism of Bartak's writing ability was an after- thought and was patently false 40 I recognize that on February 13 Augsburger wrote a memo to Bartak in which she was extremely critical of Bartak's stabbing story I have found above, however, that due to the late breaking nature of this story that the night rewrite man wrote this story and Augsburger knew it and that but for 40 In addition to her above-mentioned testimony about Bartak's unsatis- factory writing, Augsburger, who worked as copy editor and then chief copy editor from 1973 through 1979 testified that during this entire period, 6 to 7 years, Bartak's stories were always poorly written, that they were long, hard to follow, and overwritten, and that she was one of the poorest writers on the paper Based on this it would appear that, on her transfer from the copy desk to the city desk where she supervised Bartak directly, Augsburger would continue to have a problem with what can only be characterized as Bartak's outrageously bad writing But, not only did Augsburger fail to criticize Bartak's writing ability in her April I written evaluation of Bartak's work performance, but also testified that she could only recall two stories that Bartak wrote during the time she supervised her on the night police beat that she was critical of the writing Under these circumstances and in view of Augsburger's poor demeanor that left me with the impression that she was an insincere and unreliable witness, I have rejected her testimony about Bartak's poor writing ability PHOENIX NEWSPAPERS 75 Managing Editor Early's instruction would not have rep- rimanded Bartak about this. That Augsburgei• did not hold Bartak responsible for the way in which the stab- bing story was put together is illustrated by her unex- plained failure to even mention it directly or by implica- tion in her April I evaluation of Bartak's work perform- ance As a matter of fact, Augsburger did not even men- tion in this evaluation that she was critical of Bartak's writing Armstrong's April 1 memo to Early that sets out his evaluation of Bartak's work performance as night police beat reporter stated that Bartak had written only one en- terprise story that was published in January 1980 and that Augsburger and the other city editors told Arm- strong on several occasions that Bartak was told to write enterprise stories, but did not do so and that Armstrong was also told Bartak missed deadlines on breaking stories that should not have been missed After setting out these comments Armstrong's memo stated that this was not the performance the Employer should expect from a journeyman reporter and concluded by stating, "for these reasons, I recommend that [Bartak] be terminated." As I have previously found supra, Augsburger's and Armstrong's assertion that Bartak produced no enterprise stories during the 2-month period in which Augsburger supervised her is false and that Bartak, as a matter of fact, produced several such stories. Regarding the allegation in Armstrong's April 1 memo that Bartak, so Armstrong had been told, had missed deadlines on breaking stories, Armstrong testified that because he was not present in the newsroom at night he based this assertion on the reports he got' from Augs- burger that Bartak's copy was often submitted late and that Augsburger had criticized Bartak for engaging in this conduct Augsburger contradicted this testimony When questioned about what she had told Armstrong on the several occasions that Armstrong asked her about Bartak's work performance, Augsburger testified that the only criticism about Bartak that she expressed to Arm- strong was Bartak's failure to submit enterprise stories Moreover, Augsburger's April 1 written evaluation of Bartak's work performance submitted to Armstrong in effect states that Bartak only missed deadline once during the period she worked for Augsburger Although not mentioned in Armstrong's April 1 memo about Bartak's work performance, Armstrong testified that when he visited the newsroom on Thursday and Friday to do the weekend stories that he observed Bartak talking to other reporters in the newsroom and disrupting their work Armstrong was unable to give specific examples of what he observed her doing and failed to note this in his April 1 memo to Early More- over, his testimony was not corroborated by Augsburger who worked on Thursday nights, nor did Augsburger in- clude this in her April 1 memo to Armstrong I find it incredible that if Bartak was interfering with the work of other reporters during working time that' Augsburger would not have testified about this and that neither Arm- strong nor Augsburger included this in their April 1 evaluation of Bartak's work performance In view of these circumstances I find Armstrong concocted this tes- timony Early testified that the basis for his decision to termi- nate Bartak was as follows- I thought that the last 90 days that she spent on that newspaper was probably . . the worst work of the whole seven years that she had been there. Her work had just-first of all, there was not very much of it, and what was done was really nothing to speak of. I thought her work had really declined, and I thought her attitude was bad I just did not think there was any opportunity to save her In support of his assertion that "there was not very much of [Bartak's work]" during her tenure as night police beat reporter, Early testified "she just did not do much work in those last 90 days . . . she did not write many stories. She'd-go on the police beat, and at night she would go home There was not much happening in between." When questioned about the basis for his con- clusion that Bartak in effect produced very few stories while on the night police beat Early was vague and eva- sive (Tr 1260), and his testimony about the quantity of Bartak's production was not corroborated by either Augsburger or Armstrong or any other witness nor did they state in their April 1 evaluations of Bartak's work performance that her production was poor 41 I cannot believe that Armstrong and Augsburger would not have testified about Bartak's poor quantity of work or have notified Early about this in their April 1 memos evaluat- ing her work performance if, in fact, Bartak was such a poor producer as Early would have me believe It is not surprising that neither Augsburger nor Armstrong com- plained to Early about Bartak's productivity inasmuch as it is undisputed that during her tenure as night police beat reporter Bartak produced more copy than all the day police beat reporters combined. Under all the cir- cumstances, I find that Early's testimony concerning Bartak's low productivity was patently false In summation, Early, in deciding to discharge Bartak, relied on the evaluation of Bartak's work performance submitted to him on April 1 by Bartak's supervisors on the city desk A close scrutiny reveals, for the reasons set forth above, that the misconduct attributed to Bartak in those evaluations submitted to Early were false and that the additional allegations of misconduct brought up at the hearing for the first time by Early, Armstrong, and Augsburger also were a fabrication I therefore find that the reasons advanced by Early that triggered his de- cision to discharge Bartak were a fabrication o. Esquer's conversation with Shover On December 21 Cecilia Esquer met with Respond- ent's director of community and corporate affairs, Wil- liam Shover. Esquer, a lawyer, is a representative of a community group called Citizens Organized for Unbi- 41 I recognize that in response to a leading question Augsburger testi- fied she did not get copy from Bartak every day This ambiguous testi- mony does not warrant the inference that Augsburger was complaining about Bartak's productivity As a matter of fact both before and after this testimony, when asked to list her complaints about Bartak's work per- formance, Augsburger significantly did not complain about the quantity of her production 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ased Press (COUP), whose purpose is to persuade Re- spondent by means of either picketing , consumer boy- cotts, leafleting , and verbal persuasion to employ more minority workers and to give increased and improved coverage of issues and events that concern minority groups The meeting between . Esquer and Shover on Decem- ber 21 ' was held for the purpose of talking about the dif- ferences between COUP and Respondent and to see whether some or all these differences might be resolved. During the meeting, according to Esquer's testimony, she advised Shover that COUP was considering asking the EEOC for a commissioner's charge against Respond- ent that would involve a review of Respondent's em- ployment and recruiting practices Esquer testified that in resposne to this Shover stated , "they had troublemak- ers like that in the newspapers" and asked Esquer if she knew Bonnie Bartak and informed Esquer that Bartak had filed a complaint with the EEOC against the news- papers but that Respondent was not affraid of the EEOC Shover specifically denied making the remarks attrib- uted to him by Esquer , rather, he testified that during the meeting he took the position that COUP's claim that Respondent was unfair to minority groups was based on conduct engaged in a number of years ago by the former management at which point of time in the conversation, Shover testified, Esquer brought up Bartak's name Esquer, according to Shover, stated that Respondent was presently treating its female workers unfairly and in par- ticular had not been fair to Bartak who had been denied a promotion and that the Employer had been placing a lot of pressure on her and she had filed a charge with the EEOC against Respondent Shover testified that he replied that as far as he was concerned his relations with Bartak had always been good, that he had even compli- mented her about certain of her stories , but that he would rather not discuss the issue of Bartak's EEOC suit because he did not know that much about it. Based on my observation of the demeanor of the wit- nesses, I reject Esquer's testimony and credit Shover who seemed to be a more credible witness. p Mayne's discharge Mayne, who began working for Respondent in May 1977, previously had over 20 years of journalistic experi- ence Immediately before coming to work for Respond- ent he was city editor for a large metropolitan daily newspaper published in Seattle, Washington, and prior to that was the assistant bureau chief in New England for the Associated Press. He worked for the Respondent at the Arizona Republic from May 1977 until Steptember 1978 as night city editor and the chief of the paper's leg- islative bureau and from September 1978 until his termi- nation in January 1980 as the paper's economic news editor In his position as economic news editor he super- vised the work of several reporters and was admittedly a supervisor, as that term is defined in the National Labor Relations Act, who normally would not be afforded the protection of Section 7 of the Act. Mayne, as economic news editor, reported to and was supervised by City Editor Howard Armstrong As I have described supra, Armstrong's assistant or second in command on the city desk was Assistant City Editor Paul Schatt It is undisputed that from almost the start of his em- ployment with the Arizona Republic Mayne concluded that the city desk was operating in an inefficient and un- satisfactory manner and openly expressed these senti- ments to other members of management And, as early as June 1977, when Armstrong became city editor, Mayne submitted a long list of suggestions to Armstrong about how to perform his job as city editor successfully In August 1979 Mayne, at his own request, met with Respondent's recently appointed Associate Publisher/- General Manager Tully and informed Tully that he thought the management of the city desk was, in general, weak and inefficient and felt Tully's appointment would bring a sense of professionalism to the operation of the newspaper. Mayne was critical of the way in which Managing Editor Early and City Editor Armstrong were operating the city desk and told Tully that he thought he could do a better job and, went so far as to suggest that Tully discharge Early. Mayne's criticism about Early's and Armstrong's work performance was not expressed in the form of an ad hominem attack but, as Tully testified, was based on specifics pertaining to the way in which Early and Armstrong performed their respective jobs Tully testified he "was quite interested in [Mayne's] ob- servations" and expressed his appreciation to Mayne for speaking to him directly about the matter and indicated he -would keep Mayne's remarks confidential. Tully in fact kept Mayne's remarks confidential.42 In 1977, 1978, and 1979 Mayne also criticized Early's and Armstrong's as well as Assistant City Editor Schatt's work performances in conversations with them. But, in talking with Early he usually complimented Early's work performance and degraded Armstrong's - and Schatt's When talking with Armstrong he usually com- plimented Armstrong's work performance and degraded Early's and Schatt's and when talking with Schatt com- plimented Schatt's work performance and degraded Early's and Armstrong's In 1978 Armstrong learned from two or three of,his assistant editors that Mayne was degrading his work per- formance behind his back and was stating, among other things, that Armstrong had no control over his staff, that' Armstrong did not- know what was going on in the city room, and that he was not assertive enough and did not plan the coverage of the department adequately Also, Schatt testified that in February 1979 Schatt, Early, and Armstrong met and "compared notes" about what Mayne was saying to each of them because, as Schatt further testified, "it had seemed to become a problem[, we] felt like things were being stirred up." At this meet- ing Schatt, Armstrong, and Early, after comparing notes, discovered that Mayne was telling each of them different things as if he was trying to turn them against one an- other Armstrong in particular was informed by Schatt and Early that Mayne was saying that he, thought Arm- 42 Mayne and Tully each testified about the meeting Their testimony was not inconsistent and each impressed me as a credible witness I there- fore have relied on a composite of their testimony to describe this meet- ing PHOENIX NEWSPAPERS 77 strong was weak and unable to make a decision and did not know what was going on in the city room and could not operate the city desk and that Mayne said he thought he could do a better job of operating the city desk Armstrong testified that as early as 1977 he had con- cluded that Mayne would step on any one in order to advance himself because at this time Armstrong observed that Mayne had begun to degrade the work performance of the other editors with whom he worked, in particular, Paul Schatt, as well as Managing Editor Early, and that Mayne continued to do this in 1977, 1978, and 1979 On July 31 Mayne received his annual work perform- ance evaluation from Schatt that was approved by Early on the same day In the space on the appraisal form that asks if the supervisor evaluated is "supportive of manage- ment," Mayne was ranked as "average" and in the space reserved for comments by the person doing the evaluat- ing there was no mention directly or indirectly about Mayne's backstabbing of other members of management. An examination of the evaluation reveals that overall Mayne was evaluated as "above-average" and received a substantial merit pay raise. During 1978 and 1979 when Mayne, as described supra, was being critical of the ability of Armstrong and Schatt to manage the city room, Managing Editor Early had come to the same conclusion about the competency of Armstrong, Schatt, and the other assistant city editors and the only thing that stopped him from making whole- sale changes during 1979 in that department was the lack of experienced employees to fill these positions 43 How- ever, during the latter part of 1979 Early expressed his disapproval of Armstrong's job performance by placing him on probation and finally on January 20, 1980, except for Armstrong, replaced everyone of the assistant editors employed on the city desk. During the 10-day period from December 25 through January 4, 1980, Armstrong and Schatt were absent from work and Mayne was appointed to be in charge of the city desk for that period Mayne, when he took over the operation was, like Early, highly critical of the way in which Shcatt and Armstrong were operating the city desk. He was also very cirtical about the condition in which he found the city desk During this 10-day period Mayne expressed his dissatisfaction about the poor state of affairs he found at the city desk and openly criticized Armstrong and Schatt for operating the desk in what he felt was an unsatisfactory manner In fact, Mayne told Early that the city desk was in a state of confusion, that there was no planning or organization there, that the re- porters were dissatisfied with the editors, that there was no leadership or direction, that Armstrong was disliked by the staff because he was aloof and could not be con- tacted, and that Mayne thought he could do a better job as city editor than Armstrong. Mayne also informed Early that he thought Schatt did not have the ability or competency to perform his job, and that he had messed 43 Early testified, "I had come to the conclusion that the [city] desk really needed some overhauling, badly needed over hauling because we were dust losing it We were losing our dignity" and "had come to the conclusion the only way I could do that was to get rid of most of the people that were on it and replace them with people who could bring some new blood, some new talent, into it " up the planriin'g on the city desk and was not respected by the staff On his return to work on January 5, 1980, Armstrong learned from other editors that Mayne had been making derogatory comments about the condition of the city desk Mayne told Armstrong that he thought the city desk was in a state of confusion, that it was not orga- nized, that the desk was missing stories, and that report- ers were not being kept busy and was generally critical of Schatt's work as these were areas that SChatt was re- sponsible for in his capacity as Armstrong's assistant. On either January 13 or 14, 1980, according to Early's testimony, Armstrong asked him, "how much longer am I going to have to endure [Mayne]" and told Early that he wanted to discharge Mayne because he did not trust him, and that he felt he could not turn his back on Mayne because Mayne was always backstabbing and slashing people and would tell you what a great person you were while at the same time tell someone else what a "bumblehead" you were Armstrong stated he could not trust Mayne and did not want to deal with him any more and that Mayne was a "rumor-spreader" and a backstabber. Early further testified that in response to Armstrong's comments that Early stated "if you want to fire him fire him" and that ended the matter Armstrong, on the other hand, testified that after Early had listened to his reasons for wanting to discharge Mayne that Early told him, "we'll see if we can do that" and that Early left and did not speak to him about the matter for an- other few days at which time he advised Armstrong that he had discussed the question of Mayne's discharge with the paper's publisher and associate publisher and that they had decided to accept Armstrong's recommendation and that Armstrong could fire Mayne. On January 15, 1980, Armstrong, in the presence of Schatt, while reading from a prepared statement, in- formed Mayne about his discharge The description of the pertinent part of this meeting follows 44 ARMSTRONG: I have given a lot of serious thought to this in the past few days and I have come to the conclusion that you are not trustwor- thy. I intend to stay at this paper for a long time and it is an uncomfortable situation to have some- one you can not trust You do many things well, but I don't think I can trust you, so I have to termi- nate you . I have requested this of the manag- ing editor and the associate publisher and the pub- lisher and they all agree I believe that is all I have to say. Do you have any questions? MAYNE Could you elaborate on some of those things? ARMSTRONG' I don't feel I have to give any more explanation On January 18, 1980, Armstrong called a meeting of the several reporters on the economic news staff who had worked under Mayne's supervision and stated that the reason for the meeting was so he could explain why 44 Based on a transcription of Mayne's contemporaneous notes of the meeting that were admitted into evidence without objection 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mayne had been fired. Armstrong stated that he had told Mayne that Armstrong did not trust hini and did not feel he could turn his back to him He urged them to listen to his side and whatever Mayne might say about his dis- charge and then to check out the facts Armstrong stated that he had heard that Mayne had told the employees there was a hit list on the newspaper with the names of about 12 people Armstrong stated this was false, that he had not heard Mayne make that statement but if Mayne was "putting that information out" that is the "very damn thing that got him fired." Armstrong explained that "with management, you can't have that kind of thing " One of the reporters asked what they should say if there were inquiries about Mayne's discharge Arm- strong answered, "[Mayne's] inability to get along with other people in management." Armstrong ended the meeting by saying that Mayne was a "damn good news- paper person" and that Armstrong had nothing but re- spect for his newspaper ability 2 Discussion and ultimate findings a. Respondent's motion to dismiss Bartak filed a series of discrimination charges against Respondent with the EEOC- on August 7 alleging dis- crimination in terms and conditions of employment against herself personally and the female employees as a class; on December 13 alleging having been placed on probation for having filed the first charge; and on April 8, 1980, alleging that she was discharged for having filed the previous charges. Mayne filed a discrimination charge against Respondent with the EEOC on January 23, 1980, alleging that he was discharged for defending Bartak against discrimination Thereafter, pursuant to Section 706(f)(2), Title VII, 42 U S C. Section 200e- 5(f)(2), the district director of the EEOC, as authorized by EEOC Procedural Regulations, 29 CFR Section 1603.23(a), on the basis of a preliminary investigation, concluded that prompt judicial action was necessary to carry out the purposes of Title VII Accordingly, the commission, on May 28, 1980, filed a petition in the United States District Court for the District of Arizona for a preliminary injunction. Equal Employment Opportu- nity Commission v Phoenix Newspapers, Inc, No CIV 8- 404 PHX VAC (D Ariz 1980) The court, by its order dated September 4, 1980, denied the EEOC's "petition for preliminary relief in all particulars " Prior to the hearing in the instant proceeding, Re- spondent filed a Motion for Partial Summary Judgment with the Board on the ground that the issues litigated before the court in the EEOC proceeding have a collat- eral estoppel effect insofar as the complaints before the Board allege that Respondent violated Section 8(a)(1) of the Act by disciplining and discharging Bartak because she filed charges with the EEOC and discharged Mayne because he refused to cooperate with Respondent's plan to retaliate against Bartak for filing the charges. The Board denied this motion without prejudice to Respond- ent's right to resubmit it to the administrative law judge conducting the hearing in this case Respondent renewed its motion at the outset of the hearing and, with the Re- spondent's agreement, I treated it as a motion to dismiss and reserved ruling The motion to dismiss is denied The doctrine of collateral estoppel has three require- ments (1) the adjudication must be valid and final, (2) there must be an identity of issues determined, and (3) there must be an identity of parties 2 Am Jur 2d, Admin- istrative Law §§ 500-504, 113 Moore Federal Practice ¶¶ 0.405[3] and ,0 441[2], Cromwell v. County of Sac, 94 US 351 (1876). In the instant case there has been no final adjudication of the issues on the meri ts.45 The court's authority in the preliminary injunction proceed- ing brought by the EEOC terminated with the conclu- sion of the administrative phase of the EEOC's adminis- trative process.46 Equal Employment Opportunity Com- mission v. Pacific Press Publishing Assn , 535 F 2d 1182, 1185 (9th Cir 1976); Hyland v. Kenner Prod. Co, 9 E P D paragraph 10,108 at 7515 (S D Ohio 1974) In ruling on the petition for preliminary injunction, the court's findings of fact and conclusions of law were pre- liminary ones and do not foreclose findings or conclu- sions to the contrary based on a record developed subse- quent to the preliminary injunction hearing. Oburn v. Shapp, 521 F 2d 142, 149 at fn 18 (3d Cir 1975). For, it is settled that "[w]here the parties do not submit the case to the trial court on its merits the general rule is that the decision of either the trail or appellate court in granting or denying a temporary injunction does not estop the parties or the court as to the merits of the case." 7 Part 2 Moore Federal Practice ¶ 65.21 at 65-157 and case cited at fn. 33. Accordingly, in ruling on the EEOC's petition for preliminary injunction the court's authority was temporary and its findings of fact and con- clusions of law do not effect subsequent actions on the merits and cannot be considered as a final adjudication for collateral estoppel purposes 45 Although the preliminary injunction proceeding in Federal district court lasted several days and was apparently litigated at length, the rule of collateral estoppel is designed to operate only when there has been a final resolution of an issue in a particular forum and not, as is explained infra, when the resolution has been less than final no matter how exten- sively or well litigated 46 The following are the steps which the EEOC must take under Sec 706 of Title VII, 42 U S C §§ 2000-e et seq in the prevention of unlaw- ful employment practices when a charge is filed by an individual 1) EEOC determines whether preliminary or temporary relief is necessary and, if so, institutes appropriate judicial action 29 CFR [Section] 1601 23(a) 2) Where EEOC determines that there is reasonable cause to be- lieve that an unlawful employment practice has occurred, it attempts to eliminate the practice by conference, conciliation, and persuasion 29 CFR [Section) 1601 24(a) 3) If such attempts to obtain voluntary compliance fail, the Com- mission may (but is not required to) bring a civil action against the respondent 29 CFR [Section] 1601 27 4) After 180 days of the filing of the charge, an aggrieved party may request from the EEOC a Right to Sue notice EEOC issuance of such notice terminates any further processing of the charge 29 CFR [Section] 1601 28(a) 5) Where the EEOC has found that a violation exists but decides not to file suit on its own or where a conciliation agreement has been reached but does not include the aggrieved party in the settle- ment, or where no violation has been found, then the EEOC issues a right to sue notice to the individual complainant Such notice ends the EEOC administrative disposition of the charge 29 CFR [Sec- tion] 1601 28(b) PHOENIX NEWSPAPERS Respondent argues that the EEOC's petition for a pre- liminary injunction sought full and complete relief onbe- half of Bartak and Mayne and that the hearing before the court was comparable to a trial on the merits, rather than a hearing on a preliminary injunction Nevertheless, the fact remains that the relief sought in the preliminary injunction hearing was temporary and did not provide for a permanent, final disposition of the EEOC charges. Furthermore, as Respondent apparently acknowledges, the results of the preliminary injunction proceeding have no res judicata effect on subsequent public proceedings instituted by the EEOC or private proceedings-instituted by Mayne or Bartak Respondent's contention that the institution of such proceedings would be futile because the merits of the case are so weak is mere speculation and such a decision must be left to that fact finder, in this case the Board's administrative law judge Based on the foregoing, I am of the view that because there was no final determination in Equal Employment Opportunity Commission v Phoenix Newspapers, Inc, No. CIV 80-404 PHX VAC (D Ariz, Sept 4, 1980), of the issues before me in the instant case that the doctrine of collateral estoppel is inapplicable and for this reason the motion to dismiss is denied 47 In the alternative, I am of the opinion that the doctrine of collateral estoppel is inapplicable as a matter of law because Section 10(a) of the National Labor Relations Act provides that the Board's authority to decide unfair labor practice cases is exclusive and is not "affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or other- wise." Here, I have found infra, the activity for which Bartak and Mayne were allegedly discriminated against is protected by Section 7 and Section 8(a)(1) of the Act Recently in Frank Briscoe, Inc v NLRB, 637 F 2d 946, 951-953 (3d Cir 1981), the court held that although em- ployee activity may be protected under Title VII this does not preclude the same activity from being protected by Section 7 of the Act. The court reasoned that the leg- islative history of Title VII and the judicial interpreta- tion of both Title VII and the Act establishes that the remedies provided by Title VII were never intended to be exclusive, and that jurisdiction under Title VII and the National Labor Relations Act will be concurrent where, as in the instant case, as I have found infra, the activity involved is protected by Section 7 b Bartak's probation, reassignment to the night police beat, and discharge The General Counsel takes the position that Bartak's October 5 probation, her extended probation on January 4, her reassignment to the night police beat on January 4, and her April 4, 1980 discharge were motivated by Re- spondent's animus toward her on account of either her union activities, or her role as spokesperson for the female employees in their effort to improve their work- ing conditions by ending allegedly discriminatory em- ployment practices or because she filed EEOC charges 47 In view of this conclusion, I have not decided whether the doctrine of collateral estoppel is inapplicable here because of a lack of identity be- tween the parties to the separate proceedings 79 against Respondent on behalf of herself and the other female employees or for a combination of all these rea- sons I am of the opinion that the General Counsel did not present a prima facie case that Respondent discriminated against Bartak on account of her union activities,48 but I am persuaded that the General Counsel has proven that Respondent placed Bartak on probation, reassigned her to the night police beat, and ultimately discharged her because she was the spokesperson for the women em- ployees in their efforts to improve their working condi- tions by ending allegedly discriminatory employment practices and because she filed an EEOC charge on behalf of herself and the other women and I am also of the view that by engaging in this conduct Respondent violated Section 8(a)(1) of the Act. The basis for this conclusion follows (1) In order for Bartak's activity to qualify as concerted activity "it must appear at the very least that [the con- duct has] some relation to group action in the interest of the employees" (Mushroom Transportation Co. v NLRB, 330 F.2d 683, 685 (3d Cir. 1964)) and that the evidence shows that Bartak was acting "with or on behalf of other employees, and not solely by and on behalf of [her- self] " Pacific Electricord Co v NLRB, 361 F.2d 310, 311 (9th Cir 1966) I am persuaded that this was the situa- tion The evidence described in detail above establishes that the women in the Arizona Republic's newsroom desig- nated Bartak to be their spokesperson in their concerted effort to persuade management to eliminate certain alleg- edly discriminatory employment practices Bartak, as the women's spokesperson, met with Managing Editor Early and Associate Editor Tully in February 1979 and in the presence of the women employees, presented the women's employment grievances Bartak informed man- agement the women thought their grievances were the result of the Company's policy of discrimination against women in favor of men Bartak warned management that if these alleged discriminatory practices and the women's employment grievances were not remedied that the women would go to the Federal Government for assist- ance Thereafter, during the spring of 1979, three women employed in the newsroom filed charges of discrimina- tion with the EEOC against Respondent alleging dis- crimination as to pay, hiring practices, and promotions with respect to themselves personally and all the Re- spondent's female workers as a class Likewise, on August 7, 1979, Bartak filed a charge of discrimination with the EEOC against Respondent alleging discrimina- tion as to pay and promotion against her personally and all the Respondent's female employees as a class The filing of Bartak's August 7 EEOC charge of sex discrimi- 48 This conclusion is based on the lack of evidence that Respondent was antagonistic toward its employees for supporting the Union, the lack of any significant relationship timewise between Bartak's union activities and the disciplinary action against her, and the fact that there were other employees who were just as active as Bartak in their support of the Union who were not discriminated against 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nation was inextricably intertwined with,,Bartak's role as the spokesperson of the women in their concerted effort to improve their working conditions, for, it was as spokesperson that Bartak, in effect, warned management that the women, if necessary, would file charges with the EEOC in order to remedy their common grievances 49 Clearly, the subsequent filing of these charges by Bartak and the other three women employees, all of which charged discrimination against all of the women em- ployed by Respondent, was an extension of the women employees' initial concerted activity in February 1979 when they grieved to management about their working conditions and constitutes an integral part of that activi- ty. It is for the foregoing reasons that I find that by acting as spokesperson on behalf of the women employ- ees and thereafter by filing her EEOC discrimination charge against Respondent on August 7, 1979, that' Bartak was acting in concert with the other female em- ployees and thereby was engaging in concerted activity (2) I further find that Bartak's concerted activity was pro- tected under Section 7 of the Act Section 7 guarantees employees both the rights to organize and to bargain col- lectively through their chosen representative, and the right to engage in "other concerted activities" for their "mutual aid or protection." Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). "Activities relating to conditions of employment are for `mutual aid or protection "' Frank Briscoe, Inc. it. NLRB, 637 F 2d 946, 950 (3d Cir 1981). Thus, when Bartak, acting in concert with her female coworkers and speaking on their behalf, grieved directly to management about allegedly discriminatory employ- ment practices, her conduct was protected by Section 7 of the Act (NLRB v. Tanner Motor Livery, Ltd, 419 F.2d 216 (9th Cir 1969)), so long as it did not violate the prin- ciple of exclusive representation for collective-bargaining purposes Emporium Cap well Co. v. Western Addition Community Organization, 420 U.S. 50 (1975).50 Likewise, 49 I recognize that in speaking to management on behalf of the other employees Bartak did not expressly refer to the EEOC but used the term "federal government " It is plain from the record that everyone in- volved-Bartak, the employees, and management-knew she was refer- ring to the EROC so In Emporium Capwell the Supreme Court held that the self-help ef- forts of minority employees to achieve employment equality was unpro- tected where an exclusive representative existed and where the activity of the minority employees undermined the effectiveness of that represen- tation The employees there repudiated the governing contractual griev- ance mechanism that had been invoked by their union and sought instead through picketing and boycotting to compel their employer to bargain separately with them This conduct was found to have undermined the principle of exclusive representation embodied in the Act In the instant case Respondent has failed to establish that the female employees in seek- ing to have Respondent remedy the allegedly discriminatory employment practices sought to undermine their Union 's representative status or en- gaged in conduct reasonably calculated to do this Quite the opposite Bartak expressly informed management that the women's purpose in meeting with management was not to negotiate about their employment grievances, but only to make management aware of those grievances And, on the subject of wages, Bartak informed management that the women favored the Union's wage proposal presented during contract ne- gotiations Likewise, Bartak indicated that the women desired that the Company institute an affirmative action program that had also been pro- posed by the Union during negotiations Admittedly, Bartak threatened that the women would "act" if the Company failed to remedy its alleged when Bartak, together with the other female employees, filed discrimination charges against Respondent with EEOC, which charges were an integral part of the em- ployees' concerted effort to persuade the employer to remedy its allegedly discriminatory employment prac- tices, this activity was protected by Section 7 of the Act. For employees who act together to improve their terms and conditions of employment through channels outside the immediate employee-employer relationship are en- gaged in conduct that is protected by Section 7 Eastex, Inc. v. NLRB, supra, 437 US 556, 565-566 In Eastex, the Supreme Court stated, "it has been held that the `mutual aid or protection' clause protects employees from retaliation by their employers when they seek to improve working conditions through their resort to ad- ministrative and judicial forums" 437 US., at 565-566 More specifically, the court in Frank Briscoe, Inc v. NLRB, supra, 637 F.2d 946, 950, held that employees acting in concert to ensure their rights under Title VII by filing charges against their employer with the EEOC are protected from employer reprisal by Section 7 and Section 8(a)(1) of the Act, so long as this activity does not violate another important principle of labor law, namely, the principle of exclusive representation as em- bodied in Section 9(a) of the Act.5 t In addition, the court in Briscoe held that the fact that employees' activi- ty may be protected under Title VII does not preclude it from enjoying the protection of Section 7 of the Act. The court reasoned that the legislative history of Title VII and the judicial interpretation of both Title VII and the Act establish that the remedies provided by Title VII were never intended to be exclusive, and that the juris- diction under Title VII and the Act will sometimes be concurrent. (Id at 951-953.) It is for the foregoing reasons that I find Respondent's female employees, including Bartak, in their effort to end Respondent's alleged discriminatory employment prac- tices, were acting for their mutual aid or protection and thus their activity was protected under Section 7 when they met with management and, with Bartak acting as their spokesperson, presented their grievances, and when thereafter certain women including Bartak filed discrimi- nation charges with the EEOC against Respondent alleg- discriminatory practices , but it is plain that this ambiguous statement, when viewed in the context of Bartak's other warning that the women would go to the Federal Government for assistance if the Company failed to act, can only be construed as a threat that the women would file charges of discrimination with the Government if the Company did not act on their grievances Finally , when Bartak's statement to Early, "we want you to go to the bargaining table and represent our point of view, because we believe we are a special interest group ," is viewed in the con- text of all Bartak 's comments, it is plain that Bartak was not asking Re- spondent to represent the women , but was asking that when Respondent formulated its contract proposals that it take into consideration the women's contention that they had been the subject of discriminatory em- ployment practices 51 It is clear that the filing of a charge with the EEOC does not im- pinge on the exclusivity principle of Sec 9(a) of the Act because that ac- tivity lies outside the scope of the collective-bargaining relationship See Alexander v Gardner-Denver Co, 415 U S 36 (1974) See also Barrentine v Arkansas-Best Freight Systems, 49 USLW 4347 (Apr 6, 1981) (employ- ees who have submitted wage claims to arbitration under a collective- bargaining agreement retain a distinctly separate right to prosecute the same claim in a court action under the Fair Labor Standards Act) PHOENIX NEWSPAPERS ing discriminatory practices against other employees as well as themselves personally. (3) I am persuaded that the General Counsel has estab- lished a prima facie case that Respondent,on October 5, 1979, placed Bartak on probation because she was the leader and spokesperson for the Arizona Republic's female employees in their effort to improve their terms and conditions of employment by having Respondent remedy alleged sex discrimination and because, in con- nection with this concerted effort, Bartak filed a charge of sex discrimination against Respondent with the EEOC. This conclusion is-based on these considerations in their totality Bartak was the leader and acted as the spokesperson for the female workers employed in the Arizona Republic's newsroom when they presented their sex discrimination grievances to Managing Editor Early and Associate Publish- er Tully. Asa matter of fact, after Bartak finished speak- ing at the February 9 meeting to Managing Editor Early other women were asked by management to express their sentiments but they refused because, as one of the women told Early, "[Bartak] really covered it " In view of Bartak's role as the group's spokesperson and the zealous and aggressive manner in which she presented the women's employment grievances to management, there can be no doubt that Managing Editor Early felt she was the person responsible for the women's grievance activity. Early was personally offended and upset because of the allegations of sexual discrimination expressed by Bartak, on behalf of the women, and believed that Bartak's remarks were directed at him personally and felt that, Bartak's con- duct in this respect indicated that she was hostile and unco- operative toward him. Early informed the supervisors about his February 9 meeting with Bartak and the other women and what had taken place at that meeting and stated to the supervisors that he was personally offended that the women had brought such allegations against him and was "very upset" that they were accusing him of sex discrimination Also, when Bartak in February protested Respondent's failure to include a female on its 5-year planning committee for the newsroom and asked wheth- er this failure indicated there was no future for women on the newspaper, Early admittedly felt that by engaging in this conduct she was exhibiting hostility toward man- agement and an unwillingness to cooperate with manage- ment I am persuaded that if Early was hostile toward Bartak for engaging in this kind of conduct that was closely related to her speaking out to Early on behalf of all the women in connection with their sex discrimina- tion grievances that it is logical to infer Early harboured the same hostile feelings toward her for speaking out on behalf of the women. On October 5, 1979, based on his personal evaluation of Bartak's work performance, Early placed her on probation and warned her that she would be terminated if her work did not show "great improvement, " even though less than 5 months earlier Bartak's immediate supervisors, based on their personal observation of her work performance over a period of several years, rated her as a better than average employee in her annual performance evaluation, informed 81 her she was being considered for a vacant assistant city editor position, and recommended her for a merit pay raise that was approved by Early. There is no evidence that Bar- tak's work performance or work habits between her annual work evaluation and Early's later evaluation had changed for the worse. As a matter of fact, in June 1979 Bartak was reassigned to a more prestigious beat, the urban affairs beat, and as the urban affairs reporter was assigned to cover one of the newspaper's most -newsworthy and important stories, the Papago Freeway Election In placing Bartak on probation, Early ignored the recom- mendation of Bartak's immediate supervisors Bartak's im- mediate supervisor for the period that Early evaluated her was Assistant City Editor Joel Nilsson, who felt that Bartak's work performance was above average and that she had done a good job while working for him On Oc- tober 5, the day Early evaluated Bartak and placed her on probation, Nilsson informed Early about his high regard for Bartak's work performance, but Early ignored Nilsson's opinion, disregarded the prior evaluation of As- sistant Editor Schatt and City Editor Armstrong, and placed Bartak on probation under threat of immediate discharge if she did not show "great improvement " There is no evidence that Early disagreed with Nilsson's, Schatt's, or Armstrong's evaluations of employees other than Bartak. In personally evaluating Bartak's work performance on October 5, 1979, rather than have Bartak's immediate su- pervisors make this evaluation, Early, as I have found supra, deviated from Respondent's normal procedure in con- ducting such evaluations. Normally, the employees' imme- diate supervisor or supervisors, not Early, conducted these evaluations. Bartak's was the first and last such evaluation that Early ever conducted In the case of Bartak's evaluation Early decided to devi- ate from Respondent's usual procedure only after Bartak filed her August 7 EEOC charge of sex discrimination As I have described in detail supra, when Bartak late in June, at Armstrong's suggestion, agreed to have an ac- celerated evaluation performed in order to qualify for an- other pay raise sooner than usual, there was no indica- tion, given to her by supervision that Early would per- sonally evaluate•her work, rather, when Bartak spoke to Armstrong and Nilsson concerning this evaluation, there was no mention of the fact that Early, rather than Arm- strong and/or Nilsson, would be performing the evalua- tion. In fact, Early testified that it was not until late Sep- tember that Early notified Armstrong that he would be personally conducting Bartak's evaluation and it was not until October 4 that Bartak, for the first time, was in- formed that Early, not Nilsson or Armstrong, would be conducting the evaluation Early seized on the first opportunity to discipline Bartak following his knowledge that she was the leader of and spokesperson for the women in connection with their sex dis- crimination grievances Because Bartak's May 18 evalua- tion was not shown to Early until after Bartak's supervi- sors had completed it and shown it to Bartak, Early was faced with a fait accompli and, pursuant to personnel policy, was forced to approve the evaluation and because of the better-than-average evaluation accorded Bartak by 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD her supervisors was forced to grant her a merit pay raise that they had recommended But, when Bartak com- plained that she deserved a higher pay raise, Early turned down' this request City Editor Armstrong in- formed Bartak that Early had rejected her request for more money on the' ground that Early felt that Arm- strong's evaluation of Bartak's work performance had not been tough enough However, neither at this time nor at any time prior to Early's October 5 evaluation of Bartak's work performance did anyone from manage- ment indicate to Bartak'directly or indirectly that Early's disagreement about Bartak's May 18 evaluation was a substantial one or that Early regarded Bartak's work per- formance as unsatisfactory • Quite the opposite, Arm- strong indicated to Bartak that management did not regard her work as unsatisfactory. Thus, when Arm- strong informed Bartak that Early had rejected her re- quest for more money, Armstrong suggested that rather than wait another 12 months for her annual performance evaluation that Bartak permit Armstrong to evaluate her work performance sooner which would enable Bartak to get her next pay raise sooner than usual. Bartak agreed to Armstrong's suggestion. The record reveals that su- pervisors, did not suggest, as Armstrong had done to Bartak, that an employee's evaluation be given sooner than usual unless the supervisor felt that the employee warranted a pay raise (Tr 1234-1235) Likewise, the record shows that these accelerated performance evalua- tions done for the purpose, of granting employees pay raises sooner than usual were usually conducted by the employees' immediate supervisors, not Early But, as soon as Early learned from Armstrong in September that Bartak had requested an accelerated evaluation in an effort to get a pay raise sooner than usual, Early person- ally took over Bartak's evaluation in disregard of Re- spondent's usual policy and procedure. As a 'result not only was Bartak refused a pay raise but much to her sur- prise learned she had been placed on probation and would be discharged if her work performance did not show "great improvement." In short, the above circum- stances show that Early seized the first opportunity to discipline Bartak following his knowledge that she was the leader of and spokesperson for the women in connec- tion with their sex discrimination grievances 52 Early threatened Supervisor Mayne with discharge for de- fending and complimenting Bartak's work performance in order to build up a record against Bartak to justify her dis- cipline In October 1979, shortly after Bartak's probation, Economic News Editor Mayne, who at the time was su- pervising Bartak's work on the Papago Freeway Elec- tion, wrote memos defending and complimenting Bar- tak's work. As a result Mayne was summoned to Early's office and in the presence of Employee Relations Direc- s2 I am persuaded that all the'circumstances leading up to Bartak being placed on probation by Early, when viewed in their totality, warrant the inference that Early, in effect, deliberately "ambushed" Bartak As a matter of fact, this is exactly how Early characterized his conduct toward Bartak On the witness stand, while thinking out loud about what might have happened in Bartak's case if she had acted toward him differ- ently, Early testified that had Bartak shown a different attitude that "I would not have tried to sandbag her " Thomas Y Crowell, The Diction- ary of American Slang (2d Sup ed 1975) at 442 defines "sandbag" as "v t to ambush and beat up a person tor Case threatened with discharge if he continued to write memos in defense of or which complimented Bar- tak's work performance I realize that Early, while stat- ing that Mayne's memos were interfering with Early's plans for Bartak also assured Mayne that the purpose of Bartak's probation was not to discharge her but to im- prove her work performance However, Early did not explain why he forbade Mayne and presumably other su- pervisors from complimenting Bartak's work when pur- suant to Respondent's newly instituted work perform- ance evaluation system, under which Bartak was being disciplined, it was contemplated that supervisors would write complimentary as well as critical memos so that the employees knew where they stood with management As I have found supra, Respondent presented no evi- dence that Mayne's memos defending and complimenting Bartak's work were without substance or were fabricated by Mayne to help Bartak. As a matter of fact, as I have found supra, Early, in reprimanding Mayne for writing these memos about Bartak's work performance, in speak- ing to Mayne, did not base the reprimand on the fact that he felt Mayne's memos did not constitute an accu- rate appraisal of the particular work involved Under the circumstances Early's threat to discipline Mayne for writing memos complimenting Bartak's work perform- ance warrants the inference that Early was not interested in making an honest evaluation of Bartak's work per- formance but was simply interested in building up a record to justify disciplining Bartak. The aforesaid considerations, in their totality, persuade me that the General Counsel has established a prima facie case that Managing Editor Early placed Bartak on probation on October 5 because she was the leader and spokesperson of the female employees in their effort to improve their terms and conditions of employment and because, in connection with this effort, Bartak filed a charge of discrimination against Respondent with the EEOC 53 I shall now evaluate the reasons relied on by Manag- ing Editor Early for placing Bartak on probation for 90 days on October 5, 1979. In view of the fact that these reasons are embodied in Early's October 5 written ap- praisal of Bartak's work performance, I shall scrutinize this appraisal in the light of the whole record On October 5 Early rated Bartak's "Technical Knowl- edge & Ability" "marginal" and her "Initiative" and "Decision Making Ability" "average" whereas Supervi- sors Schatt and Armstrong in their May 18 evaluation of her work, less than 5 months earlier, had rated Bartak "average" in "Technical Knowledge and Ability" and "above-average" in "Initiative" and "Decision Making Ability " As I have described in detail supra, Early's basis for downgrading Bartak's work performance in each of these categories was Bartak's narrow coverage 58I recognize that other women besides Bartak participated in this concerted effort to improve the women employees' terms and conditions of employment and that none of them were disciplined by management Bartak's activity, however, differed significantly from the other women inasmuch as she was the group's leader and spokesperson and it is clear that the nature of her activity was reasonably calculated to lead Early to believe that she was responsible for the women having raised their sex discrimination grievances in the first place PHOENIX NEWSPAPERS of her beats Bartak was never criticized for her cover- age prior to this evaluation and for the majority of the time after her May 18 evaluation the manner in which Bartak covered her beat had been dictated by her imme- diate Supervisor Nilsson who, as described supra, noti- fied Early that Nilsson was to blame, not Bartak, for Bartak's narrow coverage of the urban affairs beat De- spite this knowledge, Early failed to change his evalua- tion of Bartak's work performance effected by his feeling that Bartak's coverage was too narrow, and failed to ex- plain this failure On October 5 Early rated the quantity of Bartak's work as marginal He explained to Bartak that in Sep- tember 1979 she had only produced 12 byline stories, that as a beat reporter she should have produced at least 20 stories and stated, "you have never been a big quanti- ty producer so I think the September file accurately re- flects your work out put." In short Early, in effect, ac- cused Bartak of always having been a marginal producer Early's contention that Bartak was a marginal producer during the period prior to October 5 is completely un- substantiated by either testimonial or documentary evi- dence As a matter of fact, less than 5 months earlier Su- pervisors Armstrong and Schatt, in their May 18 evalua- tion of Bartak's work, rated the quantity of Bartak's pro- duction as above-average The number of stories a re- porter publishes is an objective fact, not subject to differ- ent interpretations Neither Schatt, Armstrong, nor Early explained why in May 1979 management regarded Bartak as an above-average producer of stories whereas in October Early was taking the position that Bartak had always been a marginal producer of stories The above- average rating accorded Bartak by Armstrong and Schatt is not surprising inasmuch as the record reveals that out of the approximately 26 full-time reporters working in the Republic's newsroom only 7 produced more bylined copy during September than Bartak 54 Moreover, Jack Kowalec who, as night city editor, su- pervised Bartak 2 nights a week for several years while she worked on the city hall beat testified that "in volume, [Bartak] was probably close to being on the top in the production of stories" and that sometimes she wrote two or three stories for an edition while other re- porters would be only writing one story and "[that Bartak] consistently wrote a lot of copy " Clearly, Early's contention that Bartak was a marginal producer is a fabrication On October 5 Early rated the quality of Bartak's work as marginal whereas less than 5 months before Supervi- sors Armstrong and Schatt, in their May 18 evaluation, had rated her above-average in this category In justify- ing his marginal rating, Early informed Bartak that her writing was "weak" particularly in the lead paragraphs and that she was a "very slow writer," much too slow to be a journeyman reporter and that in Early's opinion she was not writing any faster now than when she first start- 54 These statistics are even more impressive when it is considered that during September Bartak , pursuant to instructions from Supervisor Nils- son, was writing about the issues in depth rather than concentrating on daily copy It is undisputed that during September Bartak had not as yet written many stories about the Papago Freeway Election inasmuch as that election was not scheduled until November 83 ed working for the paper over 6 years ago I recognize that matters pertaining to a persons writing ability are in some respects subjective and different persons may evaluate the writing ability of the same person quite dif- ferently But, I am not persuaded that this was the case with Bartak's writing ability I am convinced that if Bartak was so slow that she did not measure up to the standards required of a journeyman reporter and had been this way for several years, let alone for 1 or 2 years, that somewhere along the line supervision would have picked this up and would not have rated her above- average in the category that included her writing ability Although Armstrong and Schatt did note in their May 18 evaluation that Bartak's writing lacked "flair" they stated her writing was "accurate and complete" and sig- nificantly failed to mention anything about her alleged poor lead paragraphs and slowness Nor during the hear- ing in this case did either Armstrong or Schatt criticize Bartak's writing for the period prior to October 5 And, Joel Nilsson, who was Bartak's immediate supervisor during the period immediately prior to the October 5 evaluation and who impressed me in terms of his de- meanor as a more credible witness than Early, testified that during this period the group of reporters who worked under his supervision were above-average re- porters and were regarded as the "cream of the crop" of the reporters employed by the Arizona Republic and that Bartak's writing was "on a par with most of the other reporters" whom he supervised and that he rated her writing as "average " Nilsson's testimony is corrobo- rated by the testimony of Jack Kowalec who as night city editor edited Bartak's copy 2 nights a week during the period she worked on the city hall beat Kowalec, who impressed me as a credible witness, testified Bartak could write leads to stories as well as any other reporter, explaining that "there was often situations where an editor would get a story and he might have to change the lead a little bit, regardless of what reporter it was, [because] leads are in news stories probably the most dif- ficult things to write, and the most easy to change," but that in comparison to the other reporters' work that he edited, Kowalec testified, Bartak's "was as good as any other competent reporter on the staff" and estimated that her work was "in about the upper half of the reporters " Early's unsatisfactory rating for Bartak's performance factor entitled "Degree of Cooperation" stands in sharp contrast to the rating of average that Supervisors Arm- strong and Schatt gave Bartak less than 5 months earlier Of the several matters that Early listed to support this evaluation one occurred almost 2-1/2 years prior to the evaluation;55 others occurred prior to the May 18 eval- uation and were not even mentioned in that evaluation or in the interview that accompanied the evaluation;56 ss Bartak 's failure to fill out her timecard properly in June 1978 56 Bartak 's February 1979 criticism of management for its failure to ap- point a female to the Employer' s 5-year planning committee and her offer to serve on that committee, Bartak 's delay in March 1979 in submitting a copy of the tape recording of Associate Publisher Tully's meeting with the women reporters to Tully, and Bartak 's failure in 1978 to properly fill out her timecard 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD others had nothing to do with Bartak's performance as a worker,57 and others were not substantiated. 58 And, with respect to what Early in his October 5 evaluation of Bartak's work characterized as the most serious evi- dence of Bartak's alleged lack of cooperation-her wast- ing her time and the time of others by talking to people in the newsroom despite repeated warnings about this- there is no evidence that between Bartak's May 18 eval- uation and her October 5 evaluation that Bartak's con- duct in this respect had gotten worse or that during this period she had engaged in such conduct despite the rep- rimand regarding this matter set forth in her May 18 evaluation. Based on the foregoing, I find that Early's October 5 evaluation of Bartak's work performance was in virtually every respect an inaccurate reflection of Bartak's work performance, that Early knew this, but nonetheless false- ly downgraded Bartak's performance. When this conclu- sion is considered in the light of the fact that manage- ment less than 5 months earlier gave Bartak's work per- formance a good appraisal and awarded her a merit pay raise; that in the period between this favorable evaluation and Early's unsatisfactory evaluation there is no evidence that Bartak's work performance deteriorated so as to warrant Early's evaluation; that Bartak's immediate su- pervisor during the time material regarded Bartak's work performance as better than satisfactory and so informed Early; and that stortly after Early's evaluation Early rep- rimanded a supervisor for complimenting Bartak's work even though the work warranted the compliments, I am persuaded that the reasons advanced by Early for plac- ing Bartak on probation were a sham in that they did not exist but were used as pretexts by Early to cover up the real reason for Bartak's probation. In summation, I have found that the General Counsel has established a prima facie case that on October 5 Re- spondent placed Bartak on probation because she was the leader and spokesperson for the Arizona Republic's female employees employed in the newsroom in their effort to improve their terms and conditions of employ- ment and because, in connection with this concerted effort, Bartak filed a charge of sex discrimination against Respondent with the EEOC I have further found that Managing Editor Early's asserted economic justification for placing Bartak on probation was pretextual in the sense that the justification was a sham having been con- cocted to justify Bartak's probation. Accordingly, be- cause no "dual motive" for placing Bartak on probation has been shown, it is evident that she would not have been placed on probation on October 5, 1979, in the ab- 57 Bartak 's criticism of management for failing to appoint a female em- ployee to the planning committee , Bartak's refusal to acknowledge re- ceipt of Early 's May 31 memo of reprimand concerning the hit list, Bar- tak's alleged failure to help stop the spread of the hit list rumor, Bartak's "reluctance" to comply with Tully's request for a copy of the tape re- cording of his meeting with Bartak and the other women The rating sec- tion of the evaluation form is entitled "performance factors" and each of the other factors is directly related to an employee's work performance 58 No evidence was presented that Bartak ever promised management that she would "help quell the spread of rumours in the news room" or that if she made such a promise she did not comply with it sence of her protected concerted activity 59 I therefore find that by placing Bartak on probation on October 5, 1979, Respondent violated Section 8(a)(1) of the Act I further find that Respondent, likewise, violated Sec- tion 8(a)(1) of the Act when on January 4, 1980, it ex- tended Bartak's probationary period for another 90 days and as a part and parcel of this extension reassigned her to the position of night police beat reporter The conclu- sion, set forth supra, that Bartak's October 5 probation was motivated by her protected concerted activity in violation of Section 8(a)(1) of the Act is sufficient to constitute a prima facie showing that the January 4, 1980 extension of that probation for another 90 days and the accompanying reassignment to the night police beat was similarly illegally motivated. The Respondent has failed to' rebut this prima facie showing by establishing that it would have still placed Bartak on probation on January 4, 1980, and reassigned her to the night police beat even in the absence of her protected concerted activity. In this regard the record reveals that Managing Editor Early's January 4, 1980 decision to extend Bartak's probation for another 90 days and to reassign her to the night police beat was an integral part of and flowed from the pro- gressive disciplinary system that Early had used earlier to place Bartak on probation and was simply an exten- sion of that initial illegal decision Lastly, I find that by discharging Bartak on April 4, 1980, Respondent violated Section 8(a)(1) of the Act The conclusion, set forth supra, that Bartak's probation, the extension of her probation, and the reassignment of Bartak to the night police beat was motivated by her protected concerted activity in violation of Section 8(a)(1) of the Act constitutes a prima facie showing that Bartak's subsequent discharge was similarly illegally mo- tivated Respondent has failed to establish that it would still have discharged Bartak even in the absence of her protected concerted activity. In this regard the record establishes that Managing Editor Early's decision to dis- charge Bartak on April 4, 1980, was an integral part of and flowed from the progressive disciplinary system that was being used to discipline Bartak and had resulted in the previous discrimination against Bartak and that the discharge was simply an extension of the previous illegal discrimination. Moreover, for the reasons set forth in detail supra, the record establishes that the ostensible rea- sons relied on by Early to justify his decision to dis- 59 Once the General Counsel establishes a prima facie case that disci- pline is discriminatory, the Respondent may still defend its action by proving there was a good reason for the discipline and that, "it would have reached the same decision even in the absence of the protected conduct " Mt Healthy City Board of Education Y Doyle, 429 U S 274, 287 (1977) See also Wright Line, 251 NLRB 1083 (1980) On the other hand where , as in the instant case , I have found that Respondent's asserted rea- sons for placing Bartak on probation are pretextual-that is were non- existent-it eliminates the necessity for the dual-motive analysis, because no good motive has been shown See NLRB v Charles Batchelder Co, 646 F 2d 33, 39 (2d Cir 1981) (no need for further analysis "since the question before the Board [in pretext case] was not the extent to which the company relied on the valid grounds for its action , but whether the stated grounds were the reals ones" ), Limestone Apparel Corp , 255 NLRB 722 at 722 (1981) ("a finding of pretext necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon , thereby leaving intact the inference of wrongful motive established by the General Counsel") PHOENIX NEWSPAPERS 85 charge Bartak were a sham in that they did not exist but were concocted in order to justify the discharge. c. Mayne's discharge The complaint alleges that the discharge of Economic News Editor John Mayne Jr. on January 15, 1980, vio- lated Section 8(a)(1) of the Act because it was motivated by his refusal to participate or cooperate in Respondent's plan to discriminate against employee Bartak because of her protected concerted activity As I have found supra, Mayne was a supervisor within the meaning of the Act who would ordinarily not be afforded the protection of Section 8(a)(1) of the Act, inasmuch as the Act, as amended in 1947, excludes supervisors from the protec- tion of Section 7 affords to "employees " 60 But it is set- tled that Congress did not intend, in granting employers this prerogative, to diminish the protection previously accorded to ordinary employees,61 so in those cases- where the discharge of a supervisor has the effect of re- straining or coercing employees in the exercise of their Section 7 rights, the discharge violates Section 8(a)(1) of the Act, and the Board may order reinstatement of the supervisor with backpay Iron Workers Local 207 v. Perko, 373 U.S. 701, 707 (1963) Under these principles, it has been repeatedly held that Section 8(a)(1) proscribes the discharge of a supervisor for refusing to participate in the unlawful interference with employees ' Section 7 rights62 or for attempting to protect employees from in- terference or discrimination proscribed by the Act 63 This supervisory immunity protects the rank-and-file em- ployees by permitting supervisors to respect the employ- ees' statutory rights without fear of reprisal Thus, where as here I have found that Respondent disciplined and dis- charged employee Bartak because of her protective con- certed activities in violation of Section 8(a)(1) of the Act, it follows that if Respondent, as alleged in the complaint, discharged Supervisor Mayne because of his- failure to participate or cooperate in Respondent 's illegal plan to discipline and discharge Bartak, Mayne's discharge like- wise is proscribed by Section 8(a)(1) of the Act I am of the opinion that this is what in fact took place. The basis for this opinion follows. In October 1979, as I have found supra, Managing Editor Early, shortly after placing Bartak on probation in violation of Section 8(a)(1), reprimanded Mayne, who was supervising Bartak's coverage of the Papago Free- way Election Early reprimanded Mayne for defending and complimenting Bartak's work performance and in effect threatened him with discharge if he continued to compliment Bartak's work I have also found, supra, that so Sec 2(3) of the Act provides that "[t]he term 'employee' shall not include any individual employed as a supervisor 61 See NLRB v Talladega Cotton Factory, 213 F 2d 209, 217 (5th Cir 1954), and the legislative history cited therein 52 E g , Key West Coca- Cola Bottling Co, 140 NLRB 1359 (1963), enf. denied on other grounds 341 F 2d 524 (5th Cir 1965), Russell Stover Can- dies, 223 NLRB 592 (1976), enfd 551 F 2d 204 (8th Cir 1977) 63 E g , Buddies Super Markets, 223 NLRB 950 ( 1976) (supervisor ad- vised employees that respondent was building a case against him because of his union activity), Vada of Oklahoma, Inc, 216 NLRB 750 (1975) (su- pervisor informed employee of planned reprisal against him), Donelson Packing Co, 220 NLRB 1043 (1975) (supervisor's discharge motivated in part by his attempt to prevent discriminatory layoff of union adherent) Early issued this reprimand to Mayne in order to build a false employment record against Bartak so he could dis- cipline and discharge her because of her protected con- certed activity. Despite Early's threat Mayne again came to Bartak's defense in November 1979 when he notified Early that Bartak's absence from work had been ap- proved by him.64 Then, late in December, as described in detail supra, in response to Early's inquiry connected with a written reprimand issued to Bartak by City Editor Armstrong in which Mayne figured, Mayne defended Bartak against a charge of alleged misconduct and in effect corroborated Bartak's version of what happened. Shortly after this, on January 15, 1980, Mayne was dis- charged The timing of the discharge, coming as it did soon after Mayne disregarded Early's warning and de- fended Bartak against an accusation of misconduct, when viewed in the context of Early's scheme to manufacture a case against Bartak so as to justify her illegal scheme An additional reason to suspect the bona fides of Re- spondent's decision to discharge Mayne is the sharply conflicting testimony of Armstrong and Early about the manner in which the decision to discharge Mayne was reached. Early, in an apparent effort to insulate himself from, the decision and make it appear as if the decision was made solely by City Editor Armstrong, testified that when Armstrong asked him for permission to fire Mayne that Early, after Armstrong gave his reasons for this re- quest, simply approved it Armstrong contradicted Early. He testified that Early was noncommittal when Arm- strong asked for permission to discharge Mayne and that a day or two later Early informed Armstrong that he had discussed the matter with the publisher and the asso- ciate publisher and that they-Early, the publisher, and the associate publisher-had decided to accept Arm- strong's recommendation that Mayne be discharged I find it difficult to believe that if Mayne's discharge had taken place in the normal course of business for a legiti- mate business reason that there would have been such a sharp conflict among Respondent 's witnesses concerning such a significant matter pertaining to the discharge Likewise, Armstrong's refusal to explain to Mayne the basis for his discharge decision warrants the inference that the discharge was not for the reason Armstrong gave to Mayne but was for some other illegal purpose. When Armstrong told Mayne he was being discharged because' Armstrong felt he was not "trustworthy," Mayne asked Armstrong for an explanation Armstrong, without explaining, refused to tell Mayne why he felt Mayne was untrustworthy. Armstrong's refusal warrants the inference that Armstrong was concealing a different improper reason for the discharge because Armstrong had never previously accused Mayne of being un- trustworthy and the only time Mayne had been accused of being untrustworthy was more than 7 months earlier when Early had accused him of starting the rumor that Armstrong and Schatt were watching several named union adherents who would be discharged if they were caught by management engaging in misconduct Early, at 84 Early testified that but for the fact that Mayne had stated he knew about and in effect had approved Bartak's request for a second week of vacation , that he would have discharged Bartak 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that time, questioned Mayne's integrity and • trustworthi- ness and after concluding that Mayne was lying when he denied responsibility for this rumor, Early went ahead and issued a written reprimand to Mayne because of this incident which was placed in his personnel tile. The matter was then-dropped and management never again spoke about it to Mayne or questioned his trustworthi- ness Quite the contrary, Mayne's subsequent annual evaluation given on July 31 significantly omitted any criticism of Mayne's trustworthiness and in the category that dealt with the subject.of whether Mayne was "sup- portive of management" Mayne was rated "average " I can only presume that at the time the July 31 evaluation was filled out that, notwithstanding the May 31 written reprimand in Mayne's personnel file, management decid- ed to forgive and forget that incident 65 The circumstances set forth above persuade me that the General Counsel has established a prima facie case that Respondent discharged Mayne because of his failure to participate or cooperate in Early's illegal scheme to discipline and discharge Bartak because of her protected concerted activity 66 I shall now examine the reasons ad- vanced by Respondent to justify Mayne's discharge The question for decision is whether Mayne would have been discharged even in the absence of his refusal to cooper- ate with Early's illegal scheme to discharge employee Bartak See Wright Line, 251 NLRB 1083 (1980). As I have described supra, Early testified that the de- cision to discharge Mayne was really made by Arm- strong and that Early, in effect, only rubber stamped Armstrong's recommendation As a result Early did not testify about the reasons for Mayne's termination; rather, Armstrong was Respondent's principle witness concern- ing this subject Armstrong testified that he discharged Mayne for the following two reasons (1) in May 1979 Mayne lied when he denied responsibility for the rumor about the so-called hit list, namely, that Armstrong and Schatt had stated management was watching several named union adherents with the object of discharging them, and (2) Mayne was criticizing Armstrong behind his back while complimenting him to his face Regarding Armstrong's testimony that Mayne lied about the hit list rumor, Armstrong significantly did not testify when he, Armstrong, reached this conclusion and there is nothing in the record to indicate that he reached it at the time of Mayne's discharge or shortly before the discharge Quite the contrary, the record establishes that management in May 1979 concluded that Mayne lied when he denied responsibility for the hit list rumor. In 95 Mayne's evaluation of July 31 indicates he was appraised by Assist- ant City Editor'Schatt on July 31 and that Early approved the appraisal on the same date The record reveals that normally these evaluations are shown to Early for his approval prior to showing them to the person being appraised There is no evidence that in the case of Mayne's July 31 evaluation that the normal procedure was not followed 66 The fact that on October 5 Supervisor Nilsson defended Bartak's work performance and that on December 11 Supervisor Schatz informed Early that he felt Early's criticism of one of Bartak's stories was too harsh and that neither Nilsson nor Schatt was disciplined does not detract from this conclusion because the instances involving Nilsson and Schatt were only isolated ones and did not, as in Mayne' s case , constitute a con- tinuous course of conduct engaged in by a supervisor despite Mayne's warning that it should cease May 1979, as described in detail supra, Managing Editor Early concluded that Mayne lied about this and, in Arm- strong's presence, Early told Mayne he lacked integrity and could not be trusted because of his responsibility for the hit list rumor and, on May 31, presumably with Arm- strong's knowledge, issued a written reprimand to Mayne for this and placed it in his personnel file But, as de- scribed in detail supra, following this written reprimand the matter was dropped and management never spoke to him again about it. Quite the opposite, Mayne's July 31 work performance evaluation, in the space allotted for "overall evaluation and comments," significantly did not include any criticism based on this incident and did not otherwise indicate that this incident had adversely effect- ed management's appraisal of Mayne's work performance including his capabilities as a supervisor As a matter of fact the July 31 evaluation, when viewed in its totality, rates Mayne as above average and as a result at that time Mayne was granted a substantial merit pay raise Under the circumstances, including the fact that in terms of de- meanor Armstrong did not impress me as an honest wit- ness when he testified about the reasons that led him to recommend Mayne's discharge, I reject Armstrong's tes- timony that in deciding to discharge Mayne he relied in part on the fact that Mayne had lied to management in denying responsibility for the hit list rumor and conclude that this is nothing more than a purely pretextual reason which does more to detract from the lawfulness of the discharge than support it Regarding Armstrong's testimony that Mayne was criticizing him behind his back while complimenting him to his face, the record shows that from the very start of his employment with the Arizona Republic in 1977 Mayne was openly critical of the operation of the news- room and the manner in which Armstrong and Schatt were operating the city desk During 1978 and 1979 in criticizing their work performances, Mayne did not do so to their faces but instead complimented them when he spoke to them personally and criticized them behind their backs For example, when speaking to Armstrong he complimented Armstrong's work performance and criticized the work performances of Early and Schatt, but, when talking to the latter he would compliment them and criticize Armstrong's performance and suggest he was better qualified to do Armstrong's job. Mayne's habit of criticizing Armstrong and other members of management behind their backs was not kept secret for long As early as 1978 Armstrong learned that although Mayne complimented Armstrong's work performance to his face that behind his back Mayne was speaking to the assistant editors on the city desk in a derogatory manner about Armstrong's work performance And, by February 1979 Early, Armstrong, and Schatt had gotten together and "compared notes" about what Mayne was saying about each of them behind their backs and discovered that while complimenting them to their faces he was very critical of them behind their backs and appeared to be trying to turn them against one another. In particular, Armstrong at this time learned from Early and Schatt that Mayne was saying Armstrong was weak and unable to make a decision, that he did not know what was PHOENIX NEWSPAPERS going on at the city desk, that he could not operate the city desk, and that Mayne could do a better job than Armstrong as city editor Despite management's knowl- edge that Mayne was expressing derogatory comments about the capabilities of Early, Armstrong, and SChatt behind their backs while complimenting them to their faces, there is no contention or evidence that Mayne was ever reprimanded or even spoken to about this kind of conduct In addition, Mayne's annual evaluation given on July 31, 1979, did not include any criticism for this con- duct and that part of the evaluation that dealt with the question of whether Mayne was "supportive of manage- ment" rated him as "average" and overall Mayne was rated as above average and granted a substantial merit pay raise This, despite the knowledge of Early, Arm- strong, and Schatt that Mayne was backstabbing them while complimenting them to their faces Under the cir- cumstances, including the fact that in terms of demeanor Armstrong did not impress me as an honest witness when testifying about the reasons for terminating Mayne, I reject Armstrong's testimony that in deciding to dis- charge Mayne he relied on the fact that Mayne was backstabbing him while complimenting him to his face I am of the opinion that this is nothing more than a purely pretextual reason that does more to detract from the law- fulness of the discharge than support it In so concluding, I have considered Armstrong's further testimony that on January 5, 1980, on returning to work after an absence of 2 weeks he learned that Mayne, who had been in charge of the city desk in his and Schatt's absence'67 had ex- pressed derogatory remarks about the state of the city desk and that Mayne himself personally told Armstrong that he thought the city desk was in a state of confusion, that it was not adequately organized, that it was missing stories, reporters were not being kept busy, and was in general critical of Schatt's ability to operate as Arm- strong's assistant. It was this, Armstrong's testimony in- dicates, which triggered Armstrong's decision to dis- charge Mayne Unexplained, however, is why manage- ment, in particular Armstrong, overlooked Mayne's iden- tical conduct throughout 1978 and 1979, did not even speak to him about it, let alone criticize him for it, and awarded him an above average evaluation with a merit pay raise, but then suddenly in January 1980 abruptly discharged him for offending Armstrong without even speaking to him about his conduct in an effort to remedy the problem short of discharge In view of these circum- stances, and since it is undisputed that management re- garded Mayne as a first-rate news editor, Armstrong's explanation about what triggered Mayne's discharge does not ring true. Also, I am extremely skeptical that management, as Early testified, simply in effect rubber stamped Arm- strong's recommendation that Mayne be discharged. Thus, as I have found supra, the type of conduct relied on by Armstrong to justify the decision to discharge Mayne predated Mayne's discharge by several months and even though management knew about it ignored it "From December 25 through January 4, 1980, Mayne operated the city desk in the absence of Armstrong and Schatt and other assistant edi- tors who might normally have substituted for them 87 to the extent Mayne was awarded an above average evaluation and granted a substantial merit pay raise In addition, the inference that Armstrong did not make the decision to discharge Mayne and that the reasons for the discharge were not the ones which Armstrong advanced at the hearing is bolstered by Armstrong's testimony, which sharply contradicts Early's, that Early approved Mayne's discharge only after discussing the matter with the paper's publisher and associate publisher and gave his approvel on the basis of that discussion. Significantly, the record is silent about Early's discussion with top man- agement or the basis for the decision of Early and the publisher and associate publisher to go along with Arm- strong's alleged recommendation This silence is signifi- cant because the record, as a whole, makes it extremely implausible that Early or other members of management in January 1980 would have been unduly concerned about Mayne's criticism of Armstrong's work perform- ance, albeit behind his back Early himself was express- ing similar criticism about Armstrong's work perform- ance as Mayne, albeit to Armstrong's face as well as to others. It is undisputed that Early was very dissatisfied with the manner in which Armstrong was managing the city desk and, as Early testified, spoke to Armstrong "over and over again about this," and told him he was going to give him one last chance and that if he did not "make it" intended to replace him with someone else Early further testified that during late 1979 Armstrong was placed on probation because of the poor way in which he was performing his duties as city editor (Tr 1134, 1153). Under these circumstances I find it difficult to believe that management, including Early, would have been persuaded to discharge Mayne based on Arm- strong's complaint that Mayne had been critical of his work performance behind his back The fact that, as I have found supra, Early long before January 1980 knew that Mayne had been backstabbing Armstrong and had done nothing about it, not even speak to Mayne about it, but instead had approved his above average performance evaluation and granted him a substantial merit pay raise, supports this conclusion Finally, insofar as Respondent's brief suggests that the decision to discharge Mayne was a part of Respondent's reorganization of its city desk, which took place 5 days after Mayne's discharge, it is without support in the record. Neither Early nor Armstrong testified that this was the case. If the timing of Mayne's discharge was in any way related to the implementation of Early's deci- sion to reorganize the city desk, I would have expected Early or someone from management to have so testified Moreover, throughout this proceeding Respondent has taken the position that Mayne's discharge was unrelated to his work performance as a supervisor and Early failed to mention Mayne's name when he testified about the several assistant editors on the city desk whose work dis- satisfied him, nor is there evidence that the position oc- cupied by Mayne, economic news editor, was included as a part of reorganization. On the basis of the foregoing, I am of the view Re- spondent has failed to meet its burden of overcoming the General Counsel's prima facie case by establishing that 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mayne would have been discharged, even absent his re- fusal to participate or cooperate in Respondent's plan to discriminate against employee Bartak because of her pro- tected concerted activity I therefore find that by dis- charging Mayne Respondent interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed them by the Act, and for this reason Mayne's discharge violated Section 8(a)(1) of the Act B Respondent's Lawsuit 1. The evidence In April 1979 after receiving a phone call on an exten- sion assigned to her in the city hall pressroom, Bartak re- mained on the line after the caller hung up and heard her phone conversation being played back Thereafter, sever- al times during the summer of 1979 persons who phoned her at her newsroom extension informed her they heard distinct changes in the tone level of her voice during their conversations and once or twice callers asked whether she was tape recording the conversation Bartak, who was not tape recording these phone calls and had nothing attached to her phone to account for the change in tone level, reported these comments to the Employer's switchboard operator who informed Bartak that nothing appeared to be wrong with her phone but they would report the matter to the telephone company Bartak also mentioned what had been happening to her phone to Mayne, the newspaper's economic news editor. During the first week of December 1979 Mayne, while walking past the paper's telephone switchroom, which is situated just outside the newsroom, noticed its door was open.68 Mayne went into the room and observed there was a cylindrical device about 1-1/2 inches in length at- tached to the telephone panel. The device was attached by wires where the numbers 8169 were written It was the only device of its kind in the telephone switchroom. Line 8169 was Bartak's extension, so Mayne summoned Bartak and showed her what he had discovered Prior to the discovery of the cylindrical device at- tached to Bartak's extension she had informed Willard Hatch, a representative of the Union's International union who was assigned to service the Union, that she thought her phone conversations were being tape record- ed. In support of this Bartak explained to Hatch about the conversation which was played back, the comments of the people that the tone level on her phone line changed, and that at least one caller asked whether their phone conversation was being tape recorded When Bartak discovered the cylindrical device in the switch- room attached to her extension she promptly informed Hatch who suggested that they have the device photo- graphed Bartak arranged for the president of the Union, Jack Swanson, to photograph the device. In the mean- time Hatch, who lives in Detroit, Michigan, had gone home for the holidays and while at home phoned the International union's general counsel, in Washington, D C, and asked for advice about what to do about what Hatch said appeared to be phone tap on Bartak's phone. "The door to the swttchroom usually was closed but not locked There was no lock on the door to the switchroom The International union's general counsel advised him that when he returned after the holidays to Phoneix to report the matter to the Federal Bureau of Investigation On approximately January 11, 1980, Bartak and Hatch visited the FBI's office in Phoenix and told an agent about the cylindrical device attached to Bartak's phone and about her previous unusual experiecnes with her phone Bartak stated she was asking the FBI's advice be- cause she was concerned that there might be some kind of listening device on her extension The FBI agent sug- gested that she bring him the photographs that Swanson had taken. A few days later Bartak delivered copies of the photographs to the office of the FBI agent On January 14, 1980, Bartak observed that the cylin- drical device was still attached to her extension phone, but that there were two persons at work in the switch- room The next day she discovered that the device had been removed although two short wires that had been at- tached to it remained Bartak reported this to both Hatch and the FBI agent Late in January 1980 Hatch was informed by a lawyer assigned by the EEOC to investigate Bartak's charges of discrimination that the EEOC had shown the pictures of the cylindrical device attached to Bartak's phone to an electronic's expert who stated that it could be used as a "bugging" device or to tap a phone Hatch asked for the name of this person, explaining to the EEOC lawyer that he wanted to talk to him. Hatch's request was denied on the grounds that the EEOC could not identify the expert because he worked off the record for that agency and was not available for public proceedings. Shortly thereaf- ter, Hatch contacted several officials associated with the International union in an effort to locate a wire tap expert, but it was not until May 1980 that he was able to locate one On February 4 the FBI agent whom Hatch and Bartak had spoken to about the device attached to Bartak's phone informed Bartak that the FBI was not authorized to proceed any further with her wiretapping allegation He stated, however, that he had spoken to someone em- ployed by the telephone company who had informed him that the cylindrical device in the photograph that Bartak had given him was a "zenor diode" which was involved in the electrical functioning of the telephone, that it had many electrical functions, that the device itself was not a wiretap or bugging device, but that be- cause of its electrical capabilities it could be used for the electrical flow on her extension Bartak testified she re- layed the FBI agent's remarks to Union Representative Hatch On February 20, 1980, Hatch, on behalf of the Union, accompanied by recently elected Union President John Lavelle, filed the initial charge in Case' 28-CA-5723, which charged Respondent with violating Section 8(a)(1), (3), and (5) of the Act and in that section of the charge form which contains the "[b]asis of the charge (Be specific as to facts, names, addresses, plants involved, dates, places, etc )" alleged as follows: Beginning August 20, 1979, and continuing to date, the employer has failed and refused to bargain in good faith with the Phoenix Newspaper Guild in PHOENIX NEWSPAPERS 89 violation of Sec 8(a)(5), has discharged and made inferior work assignments to employees because of their support for the union in violation of Sec 8(a)(3), and has engaged in unlawful surveillance and has intimidated and harassed the employees because they have engaged in protected and concerted activities in violation of Sec. 8(a)(1). The Employer has also placed the Union supporters on probation, has denied Union requests for information necessary to carry out its collective bargaining responsibilities, and has unilaterally subcontracted unit work with- out bargaining with the Union. [Emphasis added ] At the same time Hatch filed the aforesaid charge with the Board's Regional Director, he submitted a letter to the Regional Director that listed 14 kinds of illegal con- duct that the Union, in support of its charge, intended to prove that the Respondent was guilty of and as a basis of the Union's request for an injunction under Section 100) of the Act This letter in pertinent part states- The attached unfair labor practices against [Re- spondent] include, but are not limited to, the fol- lowing. -Tapping of the telephone of at least one union of- ficer We have photographic and eye witness evi- dence of this and have reported it to the FBI and the EEOC. -Indicating that certain union leaders and activists are on a list of employees to be purged because they are part of an "undesirable element " The Union at the time it filed this charge scheduled a meeting of its members employed by Respondent for the purpose of advising them about the charge and to discuss the charge with the members in detail The membership was notified about this meeting by pamphlet entitled UPDATE distributed by the Union on February 22, 1980, to its approximately 160 members who were em- ployed by Respondent The UPDATE was posted on the Union's bulletin boards on Respondent's premises, placed in the mailboxes of the members at work and for those who worked in the suburban news bureaus was mailed to their homes The UPDATE read as follows UNFAIR LABOR PRACTICE CHARGES On Wednesday , Feb 20, 1980, the Phoenix Newspaper Guild filed unfair labor practices with the National Labor Relations Board against Phoenix Newspapers , Inc, publishers of The Arizona Re- public, The Phoenix Gazette and the Weekly Ga- zette We filed 14 specific charges, but have not limited ourselves only to those charges, since we continual- ly are gathering evidence that could indicate the filing of more charges at a later date -Harassment of union adherents with false evi- dence -The existence of a "hit list" of an "undesireable element" to be purged from the R&G -An outright refusal to bargain with PNG -A schedule of "phantom" minimum salaries substantially higher than the minimums instituted unilaterally by the company in the posted condi- tions -Placing long-time employees-coincidentally union supporters-on probation, and the refusal of the company to deal with union representatives on the matter There are other charges. The above represents highlights, but none of the charges filed was brought lightly, and we consider all as serious viola- tions of our rights. To discuss these charges in more detail with our membership, we have scheduled a meeting for 11 a m , Sunday, March 2, at the International Hawai- ian Inn on North Central Avenue. If you feel the company has violated your rights in any area, please discuss it further with a union representative. New Times published in its February 20-26, 1980 edi- tion of the New Times Weekly,69 which was distributed on February 20, an article dealing with the Union's in- tention to file the aforesaid unfair labor practice charge The article, which was entitled "WIRETAPPING CHARGED AGAINST R & G," read as follows. Wiretapping allegations apparently will be an issue in unfair labor charges expected to be filed this week against The Arizona Republic and the Phoenix Gazette Sources said the Phoenix Newspaper Guild will contend, in a complaint to the National Labor Rela- tions Board, that the two newspapers eavesdropped on telephones of guild activities and officers The accusation will be included, the sources said, in a broader charge that the two newspapers harrassed guild members with frequent and punitive reassign- ments. Wiretapping charges may also figure in pay dis- crimination suits against the Republic and the Ga- zette which are pending before the U S. Equal Em- ployment Opportunity Commission Women report- ers who contend they were paid less than male counterparts have added the allegation that their telephones were tapped The newspapers reportedly have denied the allegation The two Pulliam chain newspapers have stood off the American Newspaper Guild local for two years despite two certification elections by editorial employees The management broke off formal nego- Among the violations we have alleged are- -Wiretapping of a union officer's telephone -Transfer of union officers and negotiators to undesireable shifts and work assignments "The New Times Weekly is a weekly publication distributed free of charge on newsstands throughout the Phoenix metropolitan area During the time material here its circulation was 55,000 and it ranked second in the Phoenix metropolitan area to Respondent's newspapers that during this period had a combined circulation of 345,000 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tiations with the guild a year ago and imposed a unilateral work arrangement that withdrew several benefits. Sources said the guild will charge the newspapers with bad faith bargaining A telephone system installed in the Repub- lic/Gazette building last year enables operators to monitor and tape record incoming calls The news- paper said the monitoring allows crank calls to be recorded for the police It was learned that the wiretapping allegation was also reported to the Federal Bureau of Investi- gation Sources said the FBI refused to investigate. This article was published in the normal course of the New Times Weekly's business as a part of the coverage it normally gives to the media through its media beat re- porter. During the normal course of business the Board agent assigned by the Regional Office to investigate an unfair labor practice charge communicates with the charged party and informs that party of the evidence that the charging party is relying on to support the allegations contained in the unfair labor practice charge Here, be- tween February 26 and March 15, 1980, the Board agent assigned to investigate the Union's charge in Case 28- CA-5723 informed Respondent, through its attorneys, that the allegations contained in the charge were based in part on evidence of a small cylindrical device attached to a newsroom employee's phone line which could trig- ger the operation of a tape recorder at the main switch- board and that the Union was also contending that there was a list of union supporters maintained by the Re- spondent who the Respondent had stated were going to be purged from its employment Following publication of the February 20 news story in the New Times Weekly and the distribution of the February 22 UPDATE by the Union, several reporters who read the UPDATE and/or the news article spoke to management and indicated they were concerned about the allegation that Respondent was wiretapping employ- ees' telephones because if that was true it could jeopard- ize the reporters' current sources of confidential informa- tion and have a chilling effect on the reporters' efforts to cultivate these sources in the future On February 27, 1980, Respondent, through James Henderson, the lawyer who normally defends it in libel lawsuits, wrote the New Times that its February 20 news story was defamatory insofar as it stated. "Wiretapping charged against R & G", "Wiretapping allegations appar- ently will be an issue in unfair labor practice charges ex- pected to be filed this week against [R & G]"; "-the [Union] will contend, in a complaint to the NLRB, that the two newspapers eavesdropped on telephones of guild activists and officers"; "Women reporters who contend they were paid less than male counterparts, have added the allegation that their telephones were tapped"; "The two Pulliam chain newspapers have stood off the [Union] for 2 years despite two certification elections by editorial employees", and "The management broke off formal negotiations with the [Union] a year ago and im- posed a unilateral work arrangement that withdrew sev- eral benefits." Henderson demanded that the New Times Weekly publish a retraction of these libelous statements within the required statutory period. In reply the New Times Weekly, in its March 5-11 edition, distributed on March 5 published a "CLARIFICATION" of its Febru- ary 20 story in which it stated that on February 20 the Union had in fact filed charges with the NLRB charging Respondent with "unlawful surveillance" and "of harass- ing and intimidating employees" and quoted in haec verba the language contained in the charge On March 7, 1980, Respondent, through Daniel Gruender Jr., the lawyer whose firm normally represents Respondent in matters involving labor law and related matters, wrote the Union that its February 22 UPDATE gave an inaccurate and malicious account of the unfair labor practice charge that was filed with the NLRB and asserted that the UPDATE was false and defamatory in- sofar as it stated that the charges with the Board alleged "wiretapping of union officer's telephone", "harassment of union adherents with false evidence", "the existence of a `hit list' of an `undesireable element' to be purged from the R & G"; and "a schedule of `phantom' mini- mum salaries substantially higher than minimums institut- ed unilaterally by the company in the posted conditions." Gruender demanded that the Union publish a retraction of the aforesaid libelous statements and that the retrac- tion be posted and published in the same manner as the original UPDATE The Union did not answer Gruender's letter and otherwise took no action in re- sponse On March 25, 1980, the allegation of the unlawful sur- veillance contained in the Union's charge in Case 28- CA-5723 was withdrawn presumably when the Union was notified by the Board's Regional Office that there was insufficient evidence to warrant further proceedings on that allegation. On March 28, 1980, the complaint here issued in Case 28-CA-5723 alleging that Respondent violated Section 8(a)(1), (3), and (5) of the Act by refusing to provide the Union with information related to collective bargaining, by discriminatorily placing Bartak on probation and reas- signing her to a more onerous and less desirable job, and by unlawfully terminating Mayne On April 1, 1980, Respondent, by an attorney associat- ed with Attorney Gruender's firm, filed a civil action in the Superior Court of the State of Arizona, in and for the county of Mariciopa, Case No. C408065 , naming as defendants the Union, its officers all of whom were em- ployees of Respondent, and Union Representative Hatch (collectively called union defendants), and the New Times, its publisher and editors (collectively called New Times defendants), and certain John and Jane Does.70 The theory of the lawsuit as set forth in the complaint was grounded on libel, conspiracy, and tortious interfer- ence In the complaint's first claim for relief, Respondent alleged that the New Times defendants had libeled it by 70 Reporter Randy Collier testified that on April 1 when employee Bartak discovered that Respondent had filed the lawsuit she stated she was happy the suit had been filed and that Managing Editor Early was a "bastard" and she would be happy to see him in court and would get him in court Bartak, who specifically denied making this remark, impressed me as the more credible witness I therefore have credited her denial PHOENIX NEWSPAPERS 91 publishing the February 20 New Times Weekly article insofar as "[t]he article published was a false and mali- cious account of a charge which was subsequently filed with the National Labor Relations Board [and] the publication of the article was intended to convey and did convey to the community at large the impression that plaintiff has engaged in illegal wiretapping " In the second claim for relief, Respondent alleged that the union defendants had libeled Respondent by publishing the February 22 UPDATE because "[t]he article was a false and malicious account of an unfair labor practice charge filed by [the Union] . [and] contained false and defamatory matter including but not limited to charges of wiretapping of a union officer's telephone and the existence of a `hit list' of an `undesirable element' to be purged from plaintiff " In the third claim for relief, Respondent alleged that certain John and Jane Does had communicated the libelous information published by New Times and/or prepared or assisted in the prepara- tion of the defamatory February 20 article. In the com- plaint's fourth claim for relief Respondent alleged that New Times defendants and the Jane and John Does "conspired to obtain and publish without plaintiffs con- sent confidential memoranda which were the property of the plaintiff' and that all the defendants to the lawsuit had "conspired to libel and did libel [Respondent] " Fi- nally, in the fifth claim for relief, Respondent alleged that all the defendants had tortiously interfered with the contractual relationship between Respondent and its em- ployees, customers, and advertisers, by maliciously and deliberately conspiring to defame and discredit Respond- ent.7 1 In each of the aforesaid claims for relief Respond- ent sought general damages in the amount to be proven at trial, exemplary or punitive damages of at least $10 million, and the costs of the suit The person responsible for the decision to file Re- spondent's lawsuit against the Union and the New Times defendants was its publisher, Tully. He testified that but for the reference to the wiretapping in the New Times Weekly article and in the Union's UPDATE, he would not have decided to file the lawsuit and further testified that the reason he decided to file the lawsuit was as fol- lows because the question of wiretapping impinges upon the very essence of what a newspaper is . . . all about, its credibility, and I felt that it had to be responded to When we demanded the retraction and the retraction was not given'72 that really left me no course but to pursue the lawsuit, because credibility to us is the essence of what the newspa- per's all about Our credibility is to us like machm- 7 i After argument the court , in response to a motion filed by the New Times, dismissed the fifth claim for relief involving tortious interference and Respondent , on July 9 , 1980, deleted this claim from its complaint pursuant to an amendment 72 Tully testified that the reason the CLARIFICATION published by the New Times Weekly in response to Respondent 's demand for a retrac- tion was not satisfactory was that the New Times Weekly did not specifi- cally state that the Respondent had not been charged with wiretapping Tully explained that in his mind there was a difference between unlawful surveillance under the Act as alleged in the charge filed by the Union and a felony called wiretapping ery would be to a manufacturer If we had no credibility, we really have nothing to sell as a news- paper a great deal of the price that a newspa- per is sold for is called good will You can not find it in the machinery . . [or] in the receivables [or] in the assets It's good will. And good will is our credibility You can not get witnesses [referring to confidential sources], you can't get annonymous sources to even talk to you if there is a question of your word. If your word is not any good in our business nothing is any good [Tr 1810-1811 ] Tully, in connection with his reference to the newspa- pers' good will, testified that the mention of the wiretap- ping charge in the UPDATE and the New Times Weekly article damaged Respondent's reputation in the community thereby effecting its papers' good will. On April 28, 1980, the New Times defendant filed and served on Respondent in the lawsuit a motion to dismiss and in the alternative for summary judgment and at- tached a copy of the letter submitted by Union Repre- sentative Hatch on February 20 to the Board which was submitted simultaneous with his filing of the charge in Case 28-CA-5723 On April 28, 1980, Respondent, in the lawsuit, noticed the depositions of union defendants Hatch, Lavelle, and Bartak and also of nonparty Guiterrez. These depositions were continued by court order until the court had an op- portunity to hear and decide certain motions filed by the defendants These motions were denied and the four depositions were rescheduled and were eventually held in August An examination of the depositions of Hatch, Lavelle, and Bartak reveal they were questioned in detail about the several assertions expressed in Hatch's Febru- ary 20 letter At the start of these depositions the lawyer for the New Times' defendants objected to the taking of the depositions on the ground that Respondent was using the depositions as a means of obtaining the discovery of information relevant to proceedings currently pending before the National Labor Relations Board. The lawyer for the union defendants who were being deposed re- frained from objecting on this ground but stated that if he thought counsel for Respondent was going beyond the confines of the libel lawsuit or was attempting to liti- gate matters more properly before the Board he would in effect instruct the witness not to answer Thereafter, the lawyer for the union defendants felt no need to in- struct his witnesses not to answer or otherwise object to Respondent's questioning On May 12, 1980, the Board's complaint issued in Case 28-CA-5795 alleging in substance that Respondent had unlawfully fired Bartak. In June 1980, in connection with the EEOC litigation involving Mayne and Bartak pending in the United States district court,73 Respondent engaged in extensive discovery and took extensive depositions from Bartak, Mayne, and Supervisor Nilsson and, at the same time, se- cured copies of the affidavits Bartak had furnished to the 11 The EEOC filed its suit for a temporary injunction against Respond- ent on May 28 and the trial was held late in June 1980 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board in the Board's investigation of the unfair labor practice charges On May 29, 1980, the Union filed its charges in Case 28-CA-5904 alleging, among other things, that Respond- ent had violated the Act by filing its lawsuit against the union defendants, by engaging in electronic surveillance of employees' union activities, by refusing to meet and bargain with the Union, and by unilaterally changing em- ployees' wages without notice to the Union. On June 5, 1980, New Times filed its charge in Case 28-CA-5904-2 alleging that Respondent violated the Act by filing the lawsuit against New Times On August 23, 1980, Respondent, in the libel action, issued a "subpoena duces tecum for deposition" directing Jack Swanson, one of the defendants who was a former president of the Union, to be deposed on August 26, 1980, and to produce anything in his possession or con- trol pertaining to the Union from the time of his election as president to the present Swanson complied with the subpoena Respondent's lawsuit was still pending at the time of the hearing in the instant case. 2. Discussion and ultimate findings The General Counsel argues Respondent violated Sec- tion 8 (a)(1) of the Act by filing its lawsuit against the union defendants because it filed the suit in order to ac- complish one or more illegal purposes Specifically, in order to retaliate against them because of their union ac- tivities, or for filing the unfair labor practice charge in Case 28-CA-5723, or for publicizing the contents of that charge, or in order to discover the General Counsel's evidence supporting the complaints issued in Cases 28- CA-5904 and 28-CA-5904-2. In the alternative, the General Counsel contends that even absent evidence of illegal motivation ' the lawsuit against the union defend- ants violates Section 8(a)(1) because it reasonably tends to interfere with the employees ' exercise of their Section 7 right of access to the remedial processes of the Board in that the Union's publication to its membership of its charge in Case 28-CA-5723 "is an essential aspect of ef- fective resort to Board processes." Regarding the portion of the lawsuit involving the New Times defendants, the General Counsel and New Times argue that the filing of the lawsuit violated Section 8 (a)(1) because it was filed for the improper purpose of retaliating against the New Times defendants for assisting the Union in publicizing the Union's filing of the unfair labor practice charge filed with the Board in Case 28 -CA-5723 and the contents of that charge. In the alternative they argue that the filing of the lawsuit against the New Times defendants violated Section 8(a)(1) regardless of Respondent's motivation be- cause it reasonably tended to interfere with the statutory right of the public, including Respondent 's employees, to be informed through the media about the filing of the unfair labor practice charge filed with the Board in Case 28-CA-5723 and its contents. The Board , with the approval of the courts , has long held that despite the coercive effect on the statutory rights of employees, unions, or employers caused by the filing of a lawsuit that, as a matter of policy, the Board "should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such rights as an unfair labor practice " Clyde Taylor Co, 127 NLRB 103, 109 (1960) It is where the filing of a lawsuit not only, tends to foreseeably discourage employees or unions or em- ployers from exercising their statutory rights, but was brought for the purpose of accomplishing an unlawful objective that the Board concludes that the filing of a lawsuit violates the Act. See generally Associated General Contractors of North Dakota v. NLRB, 537 F.2d 556 (8th Cir 1981), enfg. 245 NLRB 328 (1979), and United Credit Bureau of America v. NLRB, 643 F.2d 1017 (4th Cir. 1981), enfg 242 NLRB 921 (1979). As I have described in detail supra, Respondent's pub- lisher, Tully, testified that he decided to file the lawsuit here because he believed that the publication of the Feb- ruary 22, 1980 UPDATE by the Union and the February 20, 1980 article by the New Times Weekly, insofar as they stated that Respondent had been charged by the Union with wiretapping, impunged the credibility of Re- spondent's newspapers in the eyes of the community and also had the potential effect of drying up Respondent's confidential sources of news. Tully further testified that these circumstances, coupled with the fact that the unfair labor practice charge referred to in the UPDATE and the newspaper article did not charge Respondent with wiretapping, prompted him to institute the lawsuit against the Union and New Times defendants Tully pre- sented this testimony in a sincere and convincing manner and in terms of his demeanor impressed me as being an honest witness This, plus the lack of evidence in the record as a whole to impung Tully's testimony, has per- suaded me that Tully filed the lawsuit in good faith, without an intent to retaliate against any of the defend- ants because they engaged in activity protected by the Act I am persuaded that he filed the lawsuit because he sincerely felt concerned about the impact of the publicity generated by the UPDATE and the New Times Weekly article on the reputations of the Arizona Republic and Phoenix Gazette in the community and on their sources of confidential information In crediting Tully's testimony concerning his reasons for filing the lawsuit, I have considered the following Tully filed the suit even though the New Times Weekly clarified the disputed article, Tully filed the suit even though, based on what a Board agent told Respondent, he should have realized that the Union was taking the position that the disputed wiretapping and hit list allega- tions were included in the Union's charge; even though Tully testified the lawsuit would not have been filed, but for the reference in the UPDATE and New Times Weekly article to the wiretapping, the suit included mat- ters other than the wiretapping Nevertheless, I have not discounted Tully's testimony about the reasons that prompted him to file the lawsuit because his explanation, supra, for not being satisfied with the "clarification" was not unreasonable. Nor is it unreasonable that once Re- spondent decided to file the lawsuit because of the refer- ence to the wiretapping charge in the Union's UPDATE that it should then include other matters contained in the UPDATE that it felt were harmful to Respondent's PHOENIX NEWSPAPERS 93 image in the community and that like the wiretapping reference were not included in the Union's charge Lastly, the fact that Tully knew that the Union was taking the position that its charge contained the disputed allegations does not change the fact that the charge did not contain the disputed allegations In evaluating Respondent's motivation for filing its lawsuit against the Union and New Times defendants, I have taken into account the lack of direct evidence, i e , statements' made by management, to support the claim that the lawsuit was filed for a purpose proscribed by the Act I have also carefully considered the circumstantial evidence pointed out by the General Counsel and New Times which they urge warrants an inference of illegal motivation They urge that the timing of the filing of the lawsuit immediately after the issuance of the complaint in Case 28-CA-5723, the use of Respondent's labor law lawyer rather than its libel lawyer, the civil suit's lack of merit, the abuse of the dscovery process, and the lack of monetary damage, when taken together warrant the in- ference that Respondent filed the lawsuit against the Union and New Times defendants for an object or ob- jects proscribed by the Act I disagree. The lawsuit was promptly filed after the expiration of the time for the Union's retraction had passed, as deter- mined by state law Respondent employed the law firm which handled its labor law matters rather than the lawyer who normally represented it as a defendant in libel actions, only after it learned that the latter would be too busy dealing with other matters to represent it Under these circumstances, Respondent's desire to use the law firm which usually represents it in matters involving labor law is under- standable especially because a number of labor law ques- tions are involved in the lawsuit The evidence is insufficient to establish that Respond- ent accelerated the discovery procedure or noticed depo- sitions other than within the normal statutory deadline for discovery 74 And, although Respondent deposed three of the union defendants about a broad range of manners, all of the matters were potentially relevant to the civil lawsuit because the questioning pertained to al- legations contained in Union Representative Hatch's letter of February 20 which the Union was contending was a part of the Union's unfair labor practice charge filed with the Board The union defendants' lawyer ap- parently recognized the relevancy of this line of ques- tioning because, while at the outset of the depositions he indicated he would object to questions which went beyond the issues posed by the civil action, he did not thereafter object to the questions posed Nor does the seemingly overly broad subpoena issued to former Union President Swanson warrant an inference of improper mo- tivation In the circumstances of this case, I am not per- suaded that the breath of this subpoena was no more than the result of the normal overzealousness of a consci- entious lawyer in litigating a case Finally, assuming arguendo, that Respondent's lawsuit is found to be without merit, it is not relevant to this proceeding because the issue before me is not the merits of the lawsuit but whether Respondent had a reasonable basis for filing it or, stated another way, whether the suit was filed in good faith For the reasons set forth supra, Tully's testimony persuades me that the lawsuit was filed in good faith and there is insufficient evidence in the record as a whole which warrants the rejection of Tully's testimony Based on the foregoing I find the evidence is insuffi- cient to establish that Respondent filed its lawsuit against the union defendants and the New Times defendants without a reasonable basis and for a purpose proscribed by the Act, rather, it establishes that Respondent filed the lawsuit in good faith because of its concern about the impact of the publicity generated by the UPDATE and New Times Weekly's news article on the credibility of Respondent's newspapers and on the ability of the news- papers to maintain their sources of confidential informa- tion The General Counsel argues that even absent evidence of illegal motivation Respondent violated the Act by filing the lawsuit against the union defendants because the foreseeable consequences of the suit was to interfere with employees' exercise of their Section 7 right of access to the remedial processes of the Board in that the Union's announcement to its membership contained in the UPDATE about the contents of the charge it had filed with the Board "is an essential aspect of effective resort to Board processes " I disagree Respondent's law- suit insofar as it was directed against the publication of the Union's UPDATE only involved that part of the UPDATE which described the allegations which were the basis for the Union's charge filed with the Board The publication by a union of allegations included in a charge already on file with the Board does not in my view, as contended by the General Counsel, constitute "an essential aspect of effective resort to Board processes for vindication of statutory rights " The General Coun- sel's contention that the "foreseeable consequences of Respondent's state court action is to cut off the vital communications between and among the charging party, those who might support the charge, and the Board agents involved in the processing of the charge," is simply not true insofar as it suggests that the filing of the lawsuit was calculated to interfere with communication between the Union and the Board, thereby precluding an effective investigation of the charge The sole foreseeable effect of this lawsuit would be to make the Union cau- tious in the future about publicizing to its members or the public in general the evidence it intended to rely on in support of charges- it had already filed with the Board 75 In any event, assuming the General Counsel is correct and that the lawsuit here was directed against the kind of activity which is an essential aspect of a union's effective resort to the Board's processes for the vindica- tion of employees' statutory rights or was otherwise pro- 14 The failure of Respondent to depose, as of the time of the instant hearing, any of the New Times defendants does not warrant an inference of improper motivation, under the circumstances of this case 'S In view of my ultimate conclusion here I have not decided whether this conduct, as engaged in by the Union in this case, is protected by Sec 7 of the Act 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tected by Section 7, I am still not persuaded Respod- nent's lawsuit violated the Act, absent a showing of ille- gal motivation, for as I have discussed supra, it is only where the filing of a civil suit is brought for the purpose of accomplishing an illegal objective that its filing vio- lates the Act. In the instant case, I have found supra, that Respondent, in the filing of the lawsuit, acted in good faith. The General Counsel and New Times argue that even absent a showing of illegal motivation Respondent violat- ed Section 8(a)(1) by filing its lawsuit against the New Times defendants because the suit reasonably tends to interfere with the statutory right of employees to be in- formed through the media about the filing of the unfair labor practice charge in Case 28-CA-5723 and its con- tents. I reject this contention because, as I have found supra, it is only where a civil suit is filed for the purpose of accomplishing an illegal objective that its filing vio- lates the Act In any event, regardless of Respondent's motivation in filing its lawsuit against the New Times de- fendants, its conduct did not violate the Act because the New Times article challenged by the lawsuit is not pro- tected by the Act The New Times, in publishing this ar- ticle, did not act as an agent of the Union, rather it pub- lished the article as a part of its regular media beat cov- erage. As a matter of fact, there is not even evidence that New Times' source was an officer or representative of the Union. Under these circumstances the New Times is not in a position to use Section 7 and Section 8(a)(1) of the Act as a shield against Respondent's lawsuit absent a showing that the lawsuit was filed against it as a part of a scheme to infringe on employees' Section 7 rights. Cf. Downslope Industries, 246 NLRB 948 (1979) There is no such showing in this case Quite the opposite, I have found supra, that Respondent filed the lawsuit in good faith not because of any desire to infringe on employees' statutory rights Based on the foregoing I conclude that Respondent did not violate Section 8(a)(1) of the Act by filing its civil suit against the union defendants and the New Times defendants and, for this reason, shall recommend that the complaints issued in Cases 28-CA-5904 and 28- CA-5904-2 be dismissed in their entirety 76 On the basis of the foregoing findings of fact and the entire record, I make the following 76 On August 12, 1981, New Times filed a motion to supplement the record for the purpose of submitting newly discovered evidence and a memorandum in support thereof The General Counsel and Respondent filed oppositions In support of its motion New Times submitted a copy of an interview given by Respondent 's publisher Tully to a reporter from the "Phoenix Magazine" which was published in the August 1981 edition of that magazine New Times urges that certain comments attributed to Tully in this interview constitute evidence that the publication by the New Times of the article which is the subject of the lawsuit here was the kind of conduct protected by Sec 7 of the Act and that Respondent filed this lawsuit for an object proscribed by the Act New Times' motion is denied because I am of the opinion that this new evidence , if proven by a competent witness , would not establish that Respondent was illegally mo- tivated in filing its lawsuit or that in publishing the disputed article the New Times was engaged in activity protected by the Act CONCLUSIONS OF LAW 1 The Respondent, Phoenix Newspapers, Inc , is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union, Phoenix Newspaper Guild, Local 237, the Newspaper Guild, AFL-CIO, CLC, is a labor orga- nization within the meaning of Section 2(5) of the Act 3. By placing employee Bonnie Bartak on probation on october 5, 1979, by extending Bartak's probation and re- assigning her to the position of night police beat reporter on January 4, 1980, and by discharging her on April 4, 1980, because of her protected concerted activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4. By discharging Supervisor John G Mayne Jr on January 15, 1980, because of his failure to participate or cooperate in Respondent 's unlawful scheme to discipline employee Bartak because of her protected concerted ac- tivities, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act 5. By filing a civil lawsuit on April 1, 1980, in the Su- perior Court of the State of Arizona, in and for the county of Maricopa, Case No. C408065, naming as de- fendants the Union, its officers, and a union representa- tive, and the New Times, Inc., its publishers and editors, the Respondent did not violate Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(1) of the Act by its treatment of Bonnie Bartak and John Mayne Jr., I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act Having found that Respondent, in violation of the Act, placed Bonnie Bartak on probation, reassigned her to the position of night police beat reporter, and discharged her, I shall recommend that the Respondent offer her im- mediate and full reinstatement to the position she held just prior to being reassigned to the night police beat, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges and make her whole for any loss of earnings she may have suffered by reason of such unlaw- ful conduct, by payment of a sum of money equal to that which she normally would have earned as wages from the date of discharge to the date of said offer of rein- statement, less her net earnings during such period, with backpay computed on a quarterly basis in the manner es- tablished by the Board in F. W. Woolworth Co, 90 NLRB 289 (1950), together with interest thereon as com- puted in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977)." Additionally, Respondent shall ex- punge from its employment records all references to Bar- tak's probation and discharge Having found that Respondent interfered with, co- erced, and restrained its employees in the exercise of rights guaranteed them by the Act, by the discharge of 77 See generally Isis Plumbing & Heating Co , 136 NLRB 716 (1962) PHOENIX NEWSPAPERS 95 John Mayne Jr, I shall recommend that Respondent offer him immediate and full reinstatement to his former position of economic news editor, or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to his seniority and other rights and privi- leges, and make him whole for any loss of earnings he may have suffered by reason of his discharge, by pay- ment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of the offer of reinstatement, less his net earn- ings during the period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co, supra, together with interest there- on as computed in the manner prescribed in Florida Steel Corp, supra 78 Additionally, Respondent shall expunge from its employment records all references to Mayne's discharge. In fashioning the aforesaid remedy for Mayne's unlaw- ful discharge, I have considered that Mayne was respon- vs See generally Isis Plumbing Co, supra sable for the so-called hit list rumor and lied to manage- ment when he denied his responsibility However, as I have found supra, despite its belief that Mayne was re- sponsible for the hit list rumor and had lied when he denied responsibility, Respondent merely issued him a verbal and written reprimand for engaging in this con- duct and thereafter gave him an above-average job eval- uation and awarded him a merit pay raise Under these circumstances I am of the opinion that Respondent has not established that Mayne's record constitutes a bar to the usual remedy of reinstatement and backpay I have also considered that prior to the hearing in this proceed- ing that Mayne informed the Board's Regional Office that he wanted the Board's General Counsel to cease and desist from proceeding on his behalf in this proceeding and testified only under compulsion of a subpoena Nev- ertheless, this does not preclude that Board from reme- dying Mayne's unlawful discharge because in administer- ing the Act the Board is responsible for the rights of the public as distinct from Mayne's individual welfare Cf. Lammert Industries, 229 NLRB 895, 924 (1977) [Recommended Order omitted from publication ]