Rockford Newspapers, Inc.

National Labor Relations Board - Board Decisions

May 3, 1977

229 N.L.R.B. 429 (N.L.R.B. 1977)

ROCKFORD NEWSPAPERS, INC.
Rockford Newspapers, Inc. and Mary Sue Traynor.
Case 38-CA-2862
May 3, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 31, 1977, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings,'
findings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Rockford News-
papers, Inc., Rockford, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
We find no merit in Respondent's contention that the Administrative
Law Judge committed prejudicial error either in any of her rulings or in her
conduct of the hearing.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard at Rockford, Illinois, on November 15 and
16, 1976, pursuant to a charge filed on August 10, 1976,
and a complaint issued on September 30, 1976. The issue
presented is whether Respondent Rockford Newspapers,
Inc., violated Section 8(aXI) of the National Labor
Relations Act (the Act), as amended, by threatening on
August 25, 1976, to discharge or otherwise discipline
employee Mary Sue Traynor because she engaged in
protected and/or concerted activities.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and by counsel for the General Counsel, I
make the following:
229 NLRB No. 69
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with office and
place of business located at Rockford, Illinois, where it is
engaged in the business of newspaper publication and sale.
During the year preceding the issuance of the complaint, a
representative period, Respondent had a gross volume of
sales exceeding $200,000 and purchased more than $50,000
worth of goods and materials which were shipped to it
directly from points outside Illinois. I find that, as
Respondent admits, Respondent is engaged in commerce
within the meaning of the Act, and that assertion of
jurisdiction over its operations will effectuate the policies
of the Act.
II. THE UNION'S STATUS AS A LABOR ORGANIZATION
The complaint alleges, Respondent admitted at the
hearing, and I find that the International Typographical
Union, Local No. 213 (herein the Union) is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Traynor was hired by Respondent in September 1972. At
all times relevant here, and at the time of the November
1976 hearing, she was a T.T.S. (teletype setter) puncher
under the immediate supervision of the night composing
room foreman, James O'Connell, whom Respondent
admits to be a supervisor. Traynor was in a unit
represented by the Union, and was a member of that
organization. At all times relevant here, that unit was
covered by a contract, between Respondent and the
Union, which contained a formal grievance and arbitration
procedure "limited exclusively and specifically to differ-
ences in the interpretation and enforcement of the terms of
this contract." The contract provides that an "aggrieved
party," including the Union, can raise an issue under this
procedure by directing to Respondent a written statement
of the matters in question. Under the contract, the matter is
then to be submitted to a joint standing committee
consisting of two representatives named by the Union and
two named by Respondent.
Once or twice a month, the union president and the
union committee meet with Personnel Director Gordon
Wolfley and other members of management in what
Wolfley described as an "executive committee meeting"
and Union President H. Lawrence Warne described as an
"informal meeting." The purpose of these meetings is to
iron out problems; problems which are not resolved go to
the grievance procedure set forth in the contract.
B. Events Preceding the August 25, 1976,
Evaluation Given to Traynor
About June 28, 1975, Traynor sent Union Chapel
Chairman Ray Murray a document headed "Grievance."
Under the heading "Re: James O'Connell, Morning Star
Foreman," Traynor alleged, inter alia, that O'Connell had
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfairly accused her of making intentional errors, had
made malicious insinuations about her past or present
mental health, and was, perhaps, making these statements
in order to increase her errors by means of upsetting her. In
July 1975, Union President Warne and an unidentified
union committeeman had an executive committee meeting
with Personnel Director Wolfley and/or Production
Manager Jack Hall, and then Editor-Publisher Cole
Hoover. The Union told management that Traynor was
making efforts, by seeing a doctor for counseling, to correct
her nervousness or state of mind, and asked management
to "put some sort of a restraint on the supervisory
personnel so as to permit this individual to get it all
together." Management offered to "take this under
advisement and to make efforts to see that things would
tranquilize," and asked the Union to keep its members in
check on such issues.
Beginning in late 1975, Traynor frequently if not usually
used the wrong number of ems in setting the last story she
set on her shift. When Respondent drew the error to her
attention in April or May 1976,1 she stopped it. Then, she
started to set certain items in the wrong typeface. When
O'Connell drew the error to her attention in May 1976, she
stopped it.
On January 9, 1976, Traynor testified at the Union's
behest in an arbitration proceeding brought by the Union
against Respondent. On March 1, the arbitrator issued a
decision substantially sustaining the grievance, and direct-
ing the reinstatement of the grievant with backpay.
About May 25, Traynor sent a memorandum to Union
President Warne alleging, among other things, that Fore-
man O'Connell was requiring her to "cover" for a "Harris
1100" operator without letting her operate this machine,
and was discriminating against her, because of her sex,
with respect to use of and retraining on that machine. In
late May or early June, Warne and Union Committeeman
Floyd Bowers had an executive committee meeting with
Personnel Director Wolfley and Production Director
Charles R. Blevins. The union representatives informally
inquired about the possibility of opening up a little broader
area for Traynor, whom they mentioned by name, so as to
move her around into other work areas and promote better
working relationships between her and Respondent. Re-
spondent replied that "it would be considered, but
[Respondent] would take the designated action they felt
necessary for the production of the paper." Foreman
O'Connell testified that, on an unspecified date, Traynor
was retrained to operate the "Harris 1100" machine.
Traynor testified that in April or May 1976 she wrote a
letter, of which she kept no copy, to Production Manager
Blevins about the working conditions on her machine. I
accept Blevins' testimony that he never received such a
letter.
O'Connell credibly testified that, about the spring of
1976, Respondent had moved new equipment into a
remodeled room which Respondent had tried to make "as
pleasant as possible for improved working conditions." He
further testified that during the summer "the air condition-
er was on. I had had some people that were saying that we
All dates hereafter are in 1976 unless otherwise stated.
didn't have enough air movement in the room, and I had
other people that were saying that the room was too drafty.
And I felt that there was just no way that I could resolve
the situation as to the air conditioner. If I turned the air
conditioner off, I had one group of people saying it was too
hot. If I turned the air conditioner on, I had another group
of people saying that it was too cold. So I decided that we
would set the air conditioner in as comfortable a position
as possible and leave the air conditioner on." I credit his
testimony in this respect. Accordingly, and for demeanor
reasons, I do not credit his testimony that Traynor was the
only employee who complained about a draft. For similar
reasons, and in view of his testimony that Traynor
complained about the air-conditioning in her and other
women's work areas, I do not credit his testimony that
Traynor never complained on behalf of other women, as
well as herself, that the area was cold. Rather, I credit
Traynor's testimony that during most of the summer, and
in particular about June 25, she complained about cold and
drafty working conditions for herself and other employees.
In this connection, I note O'Connell's testimony that the
machines were eventually moved.2
About June 24, Traynor, who worked on the night shift,
used masking tape to fasten a big piece of cardboard onto
the side of her machine. The cardboard was removed
during the next shift. At the start of her ensuing shift,
Traynor started to tape cardboard on her machine again,
and told O'Connell that she was doing this because it was
drafty. O'Connell concluded that there was no draft on her
machine (infra, fn. 10). He told her that Respondent did
not want cardboard pasted onto the machines. Traynor
said that, in that case, O'Connell was going to have to
move her machine. O'Connell replied that he would not do
this. Traynor talked to Acting Chapel Chairman Paul
Erickson about the matter, and then went to work.
Erickson came to O'Connell's office and told him that
Traynor was complaining about not putting up the
cardboard. O'Connell replied that Respondent did not
want cardboard pasted on the machines, that Traynor
wanted her machine moved, and that he did not feel that it
was necessary to be moving equipment around.
O'Connell and Erickson then left the office, whereupon
O'Connell saw that Traynor had relocated her machine by
pulling it out from the wall and turning it around.
O'Connell said that he did not want the machine in that
position, that he would turn the machine around, and that
she could operate it in either that or the original position.
Traynor said that she was not going to operate the machine
in that position. Traynor said that the only reason
O'Connell wanted the machine turned around was so he
could see what she was doing. He replied, "yes, that is
right." She said she was sick and was going home. He said
that she had not been sick when she came to work and, if
she left, he was going to consider her absence unautho-
rized. She went home. On June 26, O'Connell gave to
Traynor, and inserted in her personnel file, a memorandum
stating, "This is to inform you that your actions on the
night of June 25 constitute unacceptable behavior and
2 He testified that 15 to 18 machines were in Traynor's area.
430
ROCKFORD NEWSPAPERS, INC.
neglect of duty. If this happens again you may be
discharged."
Traynor testified that, in late June 1976, she wrote a
letter, of which she kept no copy, to Production Manager
Hall complaining about allegedly cold and drafty condi-
tions in the shop. Traynor further testified that, about a
week later, Hall came down to the shop, stood or sat by her
machine, and said there was indeed a draft there (infra, fn.
3). Hall denied receiving a letter from Traynor, testified
that the conversation occurred because she stopped him as
he was passing through the shop, and further testified that
he told her he felt no draft but offered to move the
machine. 3 As to the matters described in the last three
sentences, I credit Traynor, in view of O'Connell's
testimony that the machines were in fact eventually moved
notwithstanding his prior refusal. Hall credibly testified
that his wife worked in the same area as Traynor and
sometimes used the same machine, and had never com-
plained to him about the draft situation. Hall also credibly
testified that, during the summer of 1976, other employees
never complained to him about the drafty situation or
about the air-conditioning.
No grievance filed by Traynor was ever processed
through the formal grievance-arbitration procedure set
forth in the bargaining agreement.
On August 4, O'Connell had a meeting with Traynor.
The record fails to show the subject discussed there.
During this meeting, O'Connell did not threaten to
discharge or discipline her because she might file com-
plaints or grievances or file charges with the Board. That
same day, O'Connell gave to Traynor, and inserted in her
personnel folder, a memorandum stating, "This is to
inform you that your conduct has again been unacceptable
and any future acts of this type may lead to your
discharge."
Also on August 4, Traynor filed a charge with the Equal
Employment Opportunity Commission, alleging that the
women in Respondent's shop were being forced to stay in
keyboard positions. By letter to Traynor dated August 5,
the EEOC stated that, pursuant to section 706(b) of Title
VII of the Civil Rights Act, "the matter has been deferred
for 60 days to the State of Illinois, Fair Employment
Practices Commission . . . we will automatically assert
jurisdiction over your charge on the 61st day after [its]
receipt . . . of your charge." Traynor and the General
Counsel were unable to obtain a copy of this charge. The
EEOC's procedural regulations require a charge to contain,
inter alia, the full name and address of the person making
the charge, and a "clear and concise statement of the facts,
including pertinent dates, constituting the alleged unlawful
employment practice." Section 1601.11, 29 CFR 1601.11. 1
infer that Traynor's charge contained such information. At
all times relevant here, section 1601.13 of these procedural
rules required the Commission to serve on the respondent,
within 10 days after filing of the charge, either a copy
thereof or a notice that it had been filed (see infra, fn. 4).
3 In view of his confirmation of Traynor's initial testimony that they had
a conversation about this matter, I do not believe that her testimony about
its content is impeached by her subsequent denial that she had a
conversation with him. Rather, I conclude that she became somewhat
confused.
4 Before August 11, 1976, sec. 1601.13 provided, "Unless otherwise
Respondent's counsel stated on the record that Respon-
dent had never received a copy of this charge; and there is
no evidence that Respondent ever saw a copy of the
Commission's August 5 letter to Traynor. Counsel further
stated on the record that Respondent had received "a copy
of the Equal Employment Opportunity Commission person
filing charge document, which is EEOC form 131." This
document is not in the record. After showing it to the
General Counsel pursuant to subpena, Respondent's
counsel stated on the record that the document was dated
October 4. 1 infer that, notwithstanding the Commission's
10-day rule (which the Commission may regard as
inoperative until after its assertion ofjurisdiction), Respon-
dent received this document well after August 25, the date
of the alleged unlawful discharge threat. Accordingly, I
find it unnecessary to determine whether it named Traynor
as the person filing the charge.4
On August 10, Traynor filed the 8(a)(1) and (3) charge
which gave rise to the instant case. Respondent received
this charge on August 11. The charge set forth a number of
alleged acts by O'Connell, including an allegation that he
discriminated against her in her last job evaluation because
Traynor testified "against him" in a "January 9" arbitra-
tion hearing; on June 25 "by his manner of intimidation,
threats, coercion and discrimination [which] caused [her]
to become so ill [she] was unable to continue working"; in
job assignments; in "assigning the retraining"; and in
"begging off because of my health." This charge also
alleged that O'Connell required her to "cover" for a
"Harris 1100" operator although this was not her job
classification. In addition, this charge alleged that, on an
unspecified date, O'Connell forbade her to use the
restroom during working hours except during breaks.
O'Connell testified that, on a date which he could not
recall, Traynor began to take restroom breaks which he
believed (according to his credible testimony) were too
frequent and too long, and were motivated by a desire to
avoid doing work. Assistant Night Foreman Richard F.
Scott credibly testified that O'Connell later told her that
she had stopped doing this when, on an undisclosed date
before August 25, he spoke to her about it.
About August 15, Traynor sat in the composing room
with an Indian blanket wrapped over her shoulders.
On August 16, Assistant Foreman Scott reproached
Traynor for setting, on the preceding Friday, copy which
was totally useless. She replied that she was having trouble
with her T.T.S. machine. Scott asked whether she had
asked for a machinist or told Scott that she was having
trouble with the machine. Traynor replied, no, "that
wouldn't do much good, the equipment is nothing but a
bunch of goddamnedjunk. It should be thrown in the river.
We don't have machinists who are capable of fixing it
anyway and they won't fix it." Scott said that Respondent
would not accept that type of work. Later, Scott saw
Traynor go to the chapel chairman. He asked her what she
was doing. She said, "I am showing the chairman what you
determined by the Commission, the notice shall not identify the person
filing the charge." 37 FR 9217. Thereafter, sec. 1601.13 required that the
respondent be served with either a copy of the charge itself, or with a notice
naming, inter alia, the person who filed it. 41 FR 34745. 1 take judicial notice
that EEOC Form 131 contains a blank for the naming of the "Person Filing
Charge."
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jumped me about." Scott asked, "did I jump you or did I
discuss it with you?" She said, "well, you were criticizing
my work." Scott replied that "this has gone far enough,"
and told her to go back to work.
C. Traynor's August 25 Evaluation Report
On or shortly before August 25, O'Connell prepared
Traynor's 6-month evaluation report. The report rated her
job attendance as "Poor"; 5 stated that she was "General-
ly" on time; rated her present job performance, on a I to 5
scale with 5 as the top, as 1.5 and "barely passable," with
the comment, "[Traynor] is now using the ability and
knowledge she has in the performance of her work"; rated
her present job attitude as I and unsatisfactory with the
comment that her "attitude has continued to decline"; and
rated her efficiency on job as I and "unsatisfactory" with
the comment, "I am using this rating report to inform
[Traynor] that this is her final warning. Her performance
must improve or she will be discharged."
On August 25, O'Connell called Traynor into his office
to give her this report. As was her right under the
collective-bargaining agreement, Traynor brought with her
the acting nightside chapel chairman, Paul Erickson. When
Traynor and Erickson came into the office, O'Connell
asked her if she felt that it was necessary for her to have a
union representative with her for her rating report. She said
"Yes," whereupon O'Connell said that, in that case, he
wanted another company representative as a witness, and
called in Assistant Night Foreman Scott. 6
O'Connell then gave the evaluation report to Traynor.
After it had been read by Traynor, Erickson, and Scott,
O'Connell told her that he had rated her attendance poor
because she had had too many absences from work; that
she was being late too often and would have to improve in
this area; that her present work performance was barely
passable, she was not making the effort necessary to work
up to her ability, and she would have to improve in this
area; that she had temper tantrums and her "conduct
hadn't been acceptable"; and that he had rated her present
job attitude as unsatisfactory. Traynor said "yes, especially
now that I have filed charges against you with the NLRB."
O'Connell said that her work attitude had been unaccept-
able in connection with her prior practice of setting type
with the wrong number of ems and in the wrong typeface,
her prior practice of visits to the restroom which manage-
ment believed were too frequent and too long,7 and her
poor copy to which Scott had drawn her attention a few
days earlier. Further, O'Connell told Traynor that, after
being reproved for this copy, she had told Scott, "that's
what you got the 1100's for." 8 Traynor said that she was
' During the 6-month period covered by this report (February-July,
inclusive), Traynor took 4 days' paid sick leave and left early, claiming
illness, on 4 additional days. She also took 2 days' paid sick leave in
January. During 1975, she was out sick about 29 days (including I paid sick
day and about 18 consecutive working days in January 1975 during which
she was paid $120 weekly disability pay); left early, claiming illness, on 4
additional days; and was absent for unexplained reasons on 2 days,
including I day just before 2 "off' days. The record fails to show how her
attendance record compared with that of others.
R O'Connell testified at the hearing, "I felt that the evaluation was going
to be of such a serious nature that if [Traynor ] felt it was necessary to have a
union representative . . .... I would be wise to have another representative
present.'
being "picked on," and denied excessive use of the
restroom with the comment that "since I got that way on
Company time, ... I would have to use the [restroom] on
Company time." Also, Traynor denied using to Scott the
language attributed to her in connection with her com-
plaints about the T.T.S. machine. O'Connell said that she
"kept the shop in a turmoil," that she was a "constant
complainer" about drafts and the air-conditioning, that she
had been causing too much trouble lately, that she had had
two written warnings in the past few weeks, and that if she
caused any more trouble or filed any more complaints,
O'Connell would fire her. Traynor started to cry, denied
that she was creating "turmoil," and asked whether
O'Connell was referring to the "complaints [she] had filed
in the last couple of weeks." O'Connell said yes, and
further told her, "your attitude must improve and your
performance must improve or you will be discharged."
He then asked her to sign the report, which contains a
blank for the employee's signature. She said that she would
not. O'Connell told her that, by signing the report, she
would be neither approving it nor disapproving it, but
would only be recognizing the fact that she and O'Connell
had been over the report. She again said that she would not
sign it. He said that her signature was not really necessary
because Erickson and Scott could verify the fact that she
and O'Connell had been over the report. She said that she
would not sign it, but would make some comments on it.
He told her to feel free to do so. She then wrote the
following, in a space on the form for the employee's
comments. "Mr. O'Connell is an unfit person to evaluate
me because of his bias and suspiciousness as to any errors
on my part. I will not sign this report." O'Connell then told
her that "she should consider this rating report as her final
warning; that I had in the past talked to her about her
conduct and her attitude and it hadn't done any good. And
I had given her written warnings and they had done no
good. And so, that I was using this rating report as a final
warning that her attitude must improve and her perfor-
mance must improve or she would be discharged."
O'Connell testified at the hearing that Traynor's com-
plaints about the cold figured into his whole position as to
her attitude, and were part of the reason why he warned
her about her future conduct in regards to her attitude. He
further testified that her complaints about the T.T.S.
machine, the lunchroom, and the air conditioner system
contributed to his view of her attitude. Also, he testified
that his belief that her complaint about a draft at her
T O'Connell and Scott both testified that, during this interview,
O'Connell said that, at management's request. Traynor had discontinued
her erroneous typesetting practices. Scott gave similar testimony regarding
her restroom practices.
8 There'is no direct evidence about whether she in fact made this remark
(see infra, fn. 9). The "Harris 1100" is an editing and correcting machine
with a scanning device which makes it easier to find typographical errors on
the T.T.S. machine.
9 However, at the hearing she did not deny management's version of
these incidents.
432
ROCKFORD NEWSPAPERS, INC.
machine was unfounded formed part of his appraisal of her
attitude.10
My findings about the interview during which Traynor
received her evaluation report are based on a composite of
her and Chapel Chairman Erickson's testimony and on
credible portions of the testimony of O'Connell and Scott.
For demeanor reasons, I do not credit O'Connell's
testimony that he recounted everything that was said
during the interview, his testimony that Traynor said
nothing after referring to her NLRB charge, and his
testimony that Traynor said nothing after O'Connell
referred to the restroom matter. For demeanor reasons, I
credit O'Connell's testimony that Traynor said during the
interview that she had filed "charges with the NLRB," and
discredit Scott's testimony, in effect, that she did not
mention the Board. For demeanor reasons, I credit only to
the extent previously indicated Scott's equivocal testimony
about Traynor's alleged denials of the alleged instances of
improper conduct described by O'Connell during the
interview. I discuss infra O'Connell's testimony that during
this interview he did not threaten to discharge or discipline
Traynor because she had filed charges with the NLRB, or
tell her that she would be discharged if she filed any
complaints or grievances. I also discuss infra Scott's
testimony that during this interview management said
nothing to the effect that she would be discharged or
otherwise disciplined if she either filed grievances or
adhered to the grievance procedure under the collective-
bargaining agreement.
D. Analysis and Conclusions
O'Connell and Scott both credibly testified that, during
the August 25 interview, O'Connell told Traynor that she
would be discharged unless her "attitude" improved.
Moreover, the August 25 evaluation report prepared by
O'Connell stated that her "attitude" was "unsatisfactory,"
and that the report was "her final warning. Her perfor-
mance must improve or she will be discharged." Further,
O'Connell testified at the hearing that Traynor's com-
plaints about the cold figured into his whole position as to
her attitude, and were part of the reason why he warned
her about her future conduct in regards to her attitude.
O'Connell also testified that her complaints about the air-
conditioning contributed to his view of her attitude, and
that his belief that her complaint about a draft at her
machine was unfounded formed part of his appraisal of her
attitude. Finally, he conceded that Traynor's complaints
about the alleged draft on her machine were processed at
least partly through the Union's acting chapel chairman.
In short, O'Connell conceded that he threatened to
discharge Traynor partly because of a complaint, on the
subject of alleged drafts, which she advances through her
union representative. I conclude that the presentation of
such a complaint through Traynor's union representative
'0 He explained that, when he came to her machine, he himself felt no
draft there, and smoke from a cigarette in her ashtray beside the machine
went straight up in the air.
" Indeed, it is by no means clear that Traynor's complaints were covered
by the formal grievance-arbitration procedure, which is limited to "differ-
ences in the interpretation and enforcement of the terms of this contract."
Apart from the grievance-arbitration clause. the contract is not in evidence.
No contention is made that the U nion purported to or did waive
constituted an activity protected by Section 7 of the Act,
notwithstanding any belief by O'Connell that her com-
plaint was unfounded. Nissan Motor Corporation in U.S.A.,
226 NLRB 397 (1976); Dreis & Krump Manufacturing
Company, Inc., 221 NLRB 309, 314 (1975), enfd. 544 F.2d
320 (C.A. 7, 1976). Accordingly, O'Connell's own testimo-
ny establishes that Respondent violated Section 8(a)(1) of
the Act by threatening to discharge her if she continued,
among other things, to exercise her statutory right to press,
through her union representative, complaints about work-
ing conditions. Gateway Transportation Company, 190
NLRB 199 (1971). Further, I conclude that her complaints
directly to O'Connell about the air-conditioning and drafts,
which complaints admittedly played a part in his threat to
discharge her unless her attitude improved, constituted
Section 7 protected activity because of the credited
testimony that such complaints were made on behalf of
others as well as herself. Dreis & Krump, supra. According-
ly, the discharge threat was unlawful for this additional
reason.
I find unmeritorious Respondent's apparent contention
that such complaints were not protected activity because
they were never processed through the formal grievance
and arbitration procedure. Traynor's presentation of her
complaints orally to O'Connell and through her union
representative aided the functioning of the formal proce-
dure by encouraging mutually satisfactory disposition of a
problem without invoking that procedure and, thus, by not
overburdening it with matters that could be handled
without it. Cf. N.LR.B. v. Acme Industrial Co., 385 U.S.
432, 438-439 (1967); Dreis & Krump, supra' Wabash
Asphalt Company, Inc., 224 NLRB 820 (1976); Morrison-
Knudsen Company, Inc., 213 NLRB 280, 287 (1974), enfd.
521 F.2d 1404 (C.A. 8, 1975).1t
I conclude that O'Connell's August 25 discharge threat
was unlawful for the further reason that it was based partly
on Traynor's action in filing her August 10 charge with the
NLRB, conduct which Section 7 likewise protects.
N. L R.B. v. Industrial Union of Marine & Shipbuilding
Workers of America and its Local 22, 391 U.S. 418 (1968). 1
base this conclusion on O'Connell's admission to Traynor
that his "turmoil" allegation referred to the "complaints
[she] had filed in the last couple of weeks" (the charge
having been filed 10 days earlier); on the inclusion, in
Traynor's charge, of allegations partly comprised of
complaints which by O'Connell's own testimony partly
motivated his discharge threat; 12 and on the additional
inclusion of Traynor's retraining complaint which the
Union had discussed with Respondent in a May or June
"executive committee meeting." While there is no direct
evidence that O'Connell knew about Traynor's NLRB
charge, I infer such knowledge from his admission, in
effect, that he expressed no surprise or curiosity when she
mentioned it during the August 25 interview; from the
Respondent's statutory duty to entertain complaints about the matters
raised by Traynor.
12 The charge contained allegations of illness caused by O'Connell's
alleged coercion and discrimination on the June 25 occasion when he
rejected her complaints, partly through her union representative. about the
alleged drafts and she thereupon left early on a claim of illness. See also
infra, fn. 13.
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inherent likelihood that Respondent had asked him about
it, since the charge largely alleged improper conduct by
O'Connell; and from his failure to testify that he did not
know about it, even though the complaint alleged in terms
that his August 25 conduct was motivated partly by that
charge. Similarly, while there is no direct evidence as to
whether he knew about the retraining complaint discussed
at the "executive committee" meeting, I infer such
knowledge in view of his testimony that Traynor was in
fact retrained, of management's promise to the Union at
that meeting that the retraining complaint would be
considered, and of the fact that O'Connell was Traynor's
immediate supervisor.
As previously noted, O'Connell testified that during the
August 25 interview he did not threaten to discharge or
discipline Traynor because she had filed charges with the
NLRB, or tell her that she would be discharged if she filed
any complaints or grievances. Also, as previously noted,
Scott testified that, during this interview, management said
nothing to the effect that she would be discharged or
otherwise disciplined if she either filed grievances or
adhered to the grievance procedure under the collective-
bargaining agreement. I accept their testimony that during
this interview O'Connell did not in terms ascribe to such
conduct his admitted threats to discharge her. However, as
found supra, such threats were in fact motivated partly by
her filing of an NLRB charge and by her presentation of
grievances and, moreover, during this interview
O'Connell's explanations for his threats consisted in part of
references to incidents (e.g., "constant complainer," creat-
ing "turmoil" and too much trouble, her "attitude") which
in fact consisted at least in part of her protected
presentation of grievances and filing of a charge. To that
extent, I discredit the testimony of O'Connell and Scott set
forth in the first two sentences of this paragraphs
As the record fails to show that Respondent knew on
August 25 that Traynor had filed an EEOC charge on
August 4, I conclude that the evidence fails to show that on
August 25 she was threatened with discharge or discipline
partly because she had filed that charge. Further, I find
nothing in the record to support the General Counsel's
contention that Traynor was threatened with discharge
partly because of her testimony at the arbitration hearing,
or his apparent contention that she was so threatened
partly because of her August 25 request for the presence of
her union representative during the discussion of her
evaluation report. Nor do I see anything in the record to
support the General Counsel's contention that Traynor was
threatened with discipline partly because she asserted a
claim or right under the bargaining agreement; there is no
13 In view of my finding that O'Connell's August 25 threats to Traynor
were unlawful because based partly on her complaints about alleged drafts
and the air-conditioning and on her having filed a charge with the Board, I
find it unnecessary to determine whether his threats were unlawful for the
additional reason that they were admittedly based partly on her complaint
about the T.T.S. machine. Traynor consulted with her union representative
about Assistant Night Foreman Scott's criticism of the work defects which
she attributed to the condition of the T.T.S. machine. Moreover, manage-
ment's disposition of her complaint about the machine would affect the
other employees who worked on it, although there is no evidence that any of
the others was dissatisfied with it. Cf. Aro, Inc.. 227 NLRB 243 (1976).
Furthermore, Traynor's complaint about the T.T.S. machine may have been
related to the job-assignment discrimination allegation in her NLRB charge,
evidence that Respondent's complained-of conduct consti-
tuted arguable breaches of the agreement, or that she ever
claimed it did (see supra, fn. 11).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(l) of the Act
by threatening to discharge employee Mary Sue Traynor
partly because of her exercise of rights protected by Section
7 of the Act.
4. This unfair labor practice affects commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom, and from like or
related conduct. In addition, I shall recommend that
Respondent be required to withdraw and to expunge from
its personnel records the evaluation report given to
Traynor on August 25, 1976. While the adverse comments
in this report were based partly on conduct by Traynor
which was not protected by Section 7 of the Act, doubts
about what the report would have said absent Respon-
dent's reliance on her Section 7 conduct must be resolved
against Respondent, whose unlawful conduct created such
doubts. N.LR.B. v. The Barrett Company and R. W.
Morton, 135 F.2d 959, %1-962 (C.A. 7, 1943); N.LR.B. v.
Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7, 1971);
Television Wisconsin, Inc., 224 NLRB 722 (1976). I shall
also recommend that Respondent be required to post
appropriate notices.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 14
The Respondent, Rockford Newspapers, Inc., Rockford,
Illinois, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening to discharge employees because they
have engaged in activities protected by Section 7 of the
Act.
and to the retraining complaints, partly if not wholly involving the "Harris
1100" machine, set forth in her NLRB charge and discussed in a union-
management "executive committee" meeting in late May or early June.
O'Connell also testified that his August 25 threats were based partly on
Traynor's complaints about the lunchroom, but he testified that she had
never complained to him about it, and there is no other evidence about this
matter.
i4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
434
ROCKFORD NEWSPAPERS, INC.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and expunge from its personnel records the
evaluation report given to Mary Sue Traynor on August 25,
1976.
(b) Post at its Rockford, Illinois, facility copies of the
attached notice marked "Appendix." '5 Copies of said
notice, on forms provided by the Officer-in-Charge of
Subregion 38, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Officer-in-Charge of Subregion 38, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall 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
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we broke
the law in certain ways. We have been ordered to post this
notice. We intend to carry out the order of the Board and
abide by the following:
WE WILL NOT threaten to discharge employees
because they have exercised rights given by the
National Labor Relations Act. These rights include,
among other things, (I) the right to complain about
working conditions through a union representative; (2)
the right to complain about working conditions with or
on behalf of other employees; and (3) the right to file
charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights given them by the National Labor Relations Act.
WE WILL withdraw and expunge from our personnel
records the evaluation report given to Mary Sue
Traynor on August 25, 1976.
ROCKFORD NEWSPAPERS,
INC.
435