Tampa Times Co.

National Labor Relations Board - Board Decisions

Feb 14, 1951

93 N.L.R.B. 224 (N.L.R.B. 1951)

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is frequently assisted in his duties by one of the two shop helpers
whom the parties agree are within the unit. Although the service-
man works under separate immediate supervision and on different
equipment, we are of the opinion that his interests are closely related
to those of the other repair and service employees and we shall in-
clude him in the unit."
We find, therefore, that all repair and service employees of the
Employer at its Petaluma, California, operation, including the re-
frigeration and dairy equipment serviceman, but excluding salesmen,
office employees, parts man, guards, shop foreman, and all other super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 See Coca-Cola Bottling Company of Southeast Arkansas , 90 NLRB No. 125.
TAMPA TIMES COMPANY and INTERNATIONAL MAILERS UNION. Case
No. 10-CA-1035. February 14, 1051.
Decision and Order
On November 22, 1950, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, together with a support-
ing brief, and a motion to reopen the record.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
and exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as indicated below.2
i Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Reynolds,
and Styles].
2 The Respondent ' s request for oral argument is hereby denied as the record , including
the brief filed by the Respondent, in our opinion , adequately presents the issues and the
positions of the parties.
The Respondent 's motion to reopen the record is denied , as the matters which the Re-
spondent proposes to introduce in evidence at the reopened hearing are not, in our opinion,
relevant to the decision of the issues in this case.
93 NLRB No. 39.
,TAMPA TIMES COMPANY 225•
1. Like the Trial Examiner, we find that the Respondent is engaged
in commerce and activities which affect commerce. We find further
that it would effectuate the policies of the Act to assert jurisdiction in
this case.3
2. Like the Trial Examiner, we find, that the Respondent on April
29, 1950, discharged Charles C. Wilford, Sr., for union activity,
thereby violating Section 8 (a) (3) and (1) of the Act. We find that,
in replacing Wilford with Philip Moore, a former employee, the Re-
spondent was not motivated by a desire'to honor its promise to Moore
on July 11, 1949, that he would be rehired when available,4 but was
motivated by a desire to rid itself of Wilford, the leader of the union
movement in the mail room.
Order
Upon the entire record in this case, and pursuant to Section 10 (c),
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Tampa Times
Company, of Tampa, Florida, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Mailers Union or in
any other labor organization of its employees by discriminatorily dis-
charging any of them, or by discriminating in any other manner in
regard to their hire, or tenure of employment, or any term or condition
of employment.
(b) By interrogation, threats of reprisal for union activity, or in
any other manner, interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor
organizations, to join or assist International Mailers Union or any
other labor organization, to bargain collectively through representa-
3Ilowevei in asserting juris diction , we do not rely as did the Trial Examinei , solely
on the dollar volume of purchases and sales bN the Respondent but also on the fact that,
in view of its membership in Inteistate news services , we regard the Respondent as an
instrumentality or channel of interstate commerce Press. Incorporated, 91 NLRB No.
204
The Respondent excepts to the Examiner ' s faduie to find that such a promise was
made in 1949 ( as well as in 1946 ) There is uncontradicted evidence in the record of
such a promise in July 1949 and no reason appeals for the Examiner ' s failure so to find.
Accordingly , we do not agree with the Examiner 's reasoning insofar as he assumes that no
such promise was made
There is, moreover , no evidence to support the Examiner's finding that Philip Moore was
rehir ed by Royer in 1947 The only evidence on this point is that on that occasion lie was
rehired by Hartung For that reason , unlike the Examiner , we attach no significance to
the fact that Roier iefra fined from hu t tug Moore in April 1950 until after consulting
ILirtung The Taal Examiner inadvertently states at one point in his Report that Moore
wit, hired 11/, bouts after Wilford was dischaigod As indicated elsewhere in the Report,
Moore was in fact lured 1% hours before R'ilford s discharge however , the loregom^
inaccuracies in the Examiner ' s findings do not affect our ultimate conclusion herein
943732-51-i G
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives of their own choosing, and to engage in collective bargaining
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act, as
guaranteed in Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Charles C. Wilford, Sr., immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges.
(b) Make whole Charles C. Wilford, Sr., in the manner set forth in
the Section of the Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due.
(d) Post at its plant in Tampa, Florida, copies of the notice
attached hereto as Appendix A.5 Copies of such notice, to be fur-
nished by the Regional Director for the Tenth Region, shall, after
being duly signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees customarily are posted.
Reasonable steps shall be taken,by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region, Atlanta,
Georgia, in writing within ten (10) days from the date of this Order,
what steps Respondent has taken in compliance herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE %N I:I,. NOT discourage membership in INTERNATIONAL MAIL-
ERS UNION, or discourage activity in support of that organization
or any other labor organization, or discourage any employee from
exercising the rights secured to him under the National Labor
Relations Act by means of discriminatory discharge or discrim-
s If this Order is enforced by a decree of a .United states Court of Appeals these shall
be inserted in the notice before the words `A Decision and Order- the «ord. `A Deciee
of the United States Count of Appeals Enforcing '
TAMPA TIMES COMPANY 227
mating in any other manner in regard to hire, or tenure of em-
ployment, or any term or condition of employment.
WE WILL NOT by interrogation, threats or reprisal for union
activity, or in any other manner, interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist INTERNATIONAL MAIL-
ERS UNION, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act, as guaranteed in Section 7
thereof.
WE WILL offer to Charles C. Wilford, Sr., immediate and full
reinstatement to his former position and make him whole for any
loss of pay suffered as a result of the discrimination against him.
TAMPA TIMES COMPANY,
Employer.
By ----------------------------
(Representative (Title)
Dated --------------------
This notice must remain posted 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
William J. Rains, L'sq, for the General Counsel
Hugh C itacl'am Mile, i:sq, and George 11' Erickson, Esq, for the Respondent.
Mr. Alvin V. Wheat, for the Union
STATEMENT OF TILE CASE
Upon a charge filed by International Mailers Union, herein called the Union,
on May 2, 1950, the General Counsel of the National Labor Relations Board
herein called the General Counsel and the Board Iespectively, through the Re-
gional Director for the Tenth Region (Atlanta, Georgia), issued a complaint
dated October 5, 1950, against Tampa Times Company, of Tampa, Florida, herein
called the Respondent, alleging that Respondent had engaged in and was engag-
ing in certain unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
charge, the complaint, and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged that on or
about April 20, 1950, Respondent discharged its employee, Charles C. Wilford, Sr.,
and thereafter failed to reinstate him because of his membership in and activities
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on behalf of the Union and because he engaged in concerted activities with other
employees for the purpose of collective bargaining and other mutual aid and pro-
tection, that on certain dates Respondent, through named officers, agents, and
representatives, interrogated its employees concerning their union membership,
activities, and sympathies and that on certain dates Respondent, through the
same named officers, representatives, and employees, threatened to discharge its
employees and to effect other economic reprisal upon them, if they joined or
retained membership in the Union, or engaged upon activities in behalf of the
Union.
In its duly filed answer, Respondent admitted that on or about April 29, 1950,
it discharged employee Charles C Wilford, Sr , and thereafter failed and refused
to reinstate him, denied that said discharge and failure to reinstate were because
of reasons alleged, denied that it interrogated and threatened its employees as
alleged, and denied it had engaged in or was engaging in any unfair labor
practices.
Pursuant to notice, a hearing was held in Tainpa, Florida, on October 19 and
20, 1950, before Stephen S. Bean, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner The General Counsel and Respondent were repre-
sented by Counsel, the Union by its representative All parties participated in
the hearing and were given full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertinent to the issues. At the
conclusion of the hearing a motion made by the General Counsel to conform
the pleadings to the proof was granted without objection. Opportunity to argue
orally on the record was afforded but no argument was had. A brief has been
received from the Respondent.
Upon the entire record of the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a Florida corporation with its office and principal place of
business at Tampa, Florida, where it is engaged in the business of publishing a
daily newspaper known as the Tampa Daily Times and operating Radio Station
1VDAE, licensed by the Federal Communications Commission and affiliated
with the Columbia Broadcasting System. This station broadcasts news and
intelligence and advertises products on a Nation-wide basis. During the past
fiscal year Respondent sold newspapers and advertising valued at approximately
$1,300,000 It is a member of the Associated Press which, for a fee, furnishes
Respondent with national and international news and to which Respondent
furnishes local news. The Associated Press is a national organization engaged
in the purchase, collection, dissemination, and transmission of news and intelli-
gence. Respondent's business, in relation to its newspaper, is the buying, selling,
transmitting, and receiving of news and intelligence. Respondent purchases
syndicated matter, such as news articles, feature articles, cartoons, and photo-
graphs from firms maintaining their offices outside the State of Floiida. These
purchases are transmitted to Respondent's office in Florida by means of inter-
state or foreign commerce. by regular mail, air mail, parcel post, and teletype
networks For the fiscal year ending June 30. 1950, the amount of advertising,
comprising all forms of national, local, classified, and legal advertising carried
TAMPA TIMES COMPANY 229
in Respondent's newspaper totalled $897,383.40 of which national advertising'
was in the amount of $167,083.73. During the same period, Respondent's
purchases of newsprint, ink, and miscellaneous supplies approximated $285,000,
approximately 90 percent of which in value came from points outside the Stafe
of Florida.
I find that Respondent is engaged in commerce and that its operations affect
commerce within the meaning of the Act.2
II. THE ORGANIZATION INVOLVED
International Mailers Union is a labor organization which admits to member-
ship employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The two main issues requiring resolution are. (1) Whether Respondent dis-
charged Charles C. Wilford because of his membership in and activities on behalf
of the Union, as alleged by the General Counsel, or because, as Respondent asserts,
it considered his discharge was required to make place for another employee;
and (2) whether Respondent interrogated and threatened employees and if so
was such conduct violative of the Act.
A preliminary issue is whether Charles Peeler was a supervisor within the
meaning of the Act On this point, there is very little conflict in the evidence.
Peeler was foreman of the mailroom. Under him at the time involved in these
proceedings were four men, Charles C. Wilford, alleged to have been discrimina-
torily discharged, Charles J. Moore, Kenneth Hughes, and Herbert E. Packer,
Jr., and one woman, Dola Nims The four men became members of the Union on
April 19, 1950. Over Peeler, were Circulation Manager L. W. Hartung and
Assistant Circulation Manager Oliver H. Royer. Peeler instructed his subordi-
nates in the manner in which they should accomplish their duties. He hired
mailroom workers occasionally and was empowered to discharge for cause.
Peeler was free to allow employees time off if he felt in the exercise of independent
judgment it would not cause inconvenience. Royer or Peeler customarily hired
and discharged. It is clear that Peeler had, and exercised, authority effectively
to recommend the hiring and firing of employees.
I conclude and find Peeler was a supervisor within the meaning of Section
2 (11) of the Act.
B The evidence
In February 1950, while still in military service from which he was discharged
on March 23 , 1950 , Wilford approached Alvin V. Wheat, vice president of Tampa
Mailers Union # 71, affiliated with the charging party of which he is a represent-
ative Wheat is employed as a mailer by Tampa Morning Tribune where the
^ From August 1949 to August 1950 Respondent was paid for national advertising by :
Studebaker Corporation, $1,998 07 , Buick Corporation, $7,739 25 ; Hadacol Corporation,
$3,358 72 ; Blueplate, $7,181 26 , Ford Motor Company, $9,566 95 , Camel Cigarettes, $3,-
323.84; Chevrolet Company, $6,288 98, William Wrigley Chewing Gum, $3,361 18, East-
ern Airlines. $2,2S0 57 . Grapette, $910 51 . Florida Greyhound Lines, $3,078 55 . and
Sunshine Park Racing Association. $1.292 64 These receipts alone, for direct or indirect
sales by Respondent to firms outside the State of Florida are in excess of $50,000 (See
Hollow Tree Lumber Company, 91 NLRB 635). In addition to these receipts, Re-
spondent was paid amounts by other in ins for national advertising, which brought its total
receipts for this type of sales up to the named $167,083 73.
2 Cf. Press Incorporated, 91 NLRB 1360.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mailers are represented by Tampa Mailers Union #71. Wilford, who had S
years' experience as a mailer, asked Wheat if there were a vacancy in the Tribune.
Wheat informed him he did not believe so and in any event the foreman did the
hiring. He also pointed out that it was not the policy of the Union to accept into
membership persons who were not employed About a month later Wilford
found a job with Respondent. He was hired as a mailer by Assistant Circulation
Manager Royer on March 23, 1950, at $35 a week, wages higher than most if not
all of Respondent's four other mailers These mailers were unorganized.
Wilford told Royer he was not a union member. Royer told Wilford conditions
in the mailroom were unsatisfactory, that he would appreciate Wilford giving
him information concerning friction or whatever it was that was going on in
the mailroom and observing, out of his experience, things and reporting to him
anything that went on. which would be of benefit to Royer and help improve
conditions. Wilford came to be regarded by his foreman as it very proficient
journeyman mailer. Two or three weeks later Wilford made certain suggestions
to Royer about changes near the loading platform at the entrance of the mailroom,
and disparagingly discussed with Royer his estimate of the capabilities of other
employees in the mailroom. At this time Wilford also asked Royer if he had
any objections to his trying to learn something about unionization Up until
this time there had been no union activity among the mailers although four
other classifications of Respondent's employees were represented by unions.
Upon Royer stating he had no objection, Wilford telephoned Union Representative
Wheat on April 12, 1950, that Respondent's mailers were interested in looking into
the matter of forming a union.
Two meetings attended by Respondent's four male mailroom employees were
addressed by Wheat on April 14 and 18. At the second meeting the four men
informed Wheat they had decided to apply for membership in the Union They
then signed union-application forms and paid their initiation fees On April 19,
the Union voted to grant memberships to Wilford, Charles J. Moore, Hughes, and
Parker.
James A. Delaney, president of Tampa Mailers Union #71, with the approval
of Moore, Hughes, and Parker, named Wilford chairman of Tampa Times Chapel.
On the same day, a committee consisting of President Delaney, E J Becker,
secretary of Tampa Mailers Union #71, and Wheat presented Respondent's
Business Manager Edward W Sisson a proposed contract. Sisson informed
the committee that only Joseph F Smiley, Respondent's secretary, assistant
publisher, and assistant editor, who would be out of town for 10 days, could
negotiate with the Union. On April 20 the committee reported its doings to the
members of Tampa Times Chapel. On Friday. April 21, Wilford, having told
Foreman Peeler be had been appointed chapel chairman of the Union, asked
Peeler permission to hold a chapel meeting. Hughes, Parker, and Moore were
present and raised their hands to let Peeler see they were in favor of the Union.
Peeler replied, "Well so you are trying to take over" and said that others had
tried organization around there and lost their jobs.
About 4:30 p. in. Saturday, April 29, Assistant Circulation Manager Royer
told Wilford he would not need him any more because he had promised to let a
former employee return to work. He then immediately discharged Wilford with
I. week's pay in advance, in lieu of notice. Acting upon Wheat's advice, Wilford
on the morning of Monday, May 1, sought to procure from Royer a written reason
for his discharge so that he could give it to the Union and seek employment in
another chapel. Wilford was told to return at 2 p. in. When he went back at
that hour, Royer told him anybody wanting to know the reason for Wilford's
TAMPA TIMES COMPANY 231
discharge could telephone him. Neither at the time he was hired nor at any time
thereafter until the day of his discharge had anything been said to Wilford about
an employee having been promised his job back
On May 4, Wheat went to see Assistant Publisher Smiley who informed- him
Respondent was waiting to decide whether it wanted a Board election before
offering a counterproposal on contract negotiations. Subsequently, upon Re-
spondent's request the Union filed a petition for certification which was granted
June 27, 1950
Philip J. Moore, a brother of employee Charles J Moore, had worked as a mailer
for Respondent from October 1942 until September 16, 1946, when he quit because
of illness . He returned to wofk February 10, 1947, and remained until July 11,
1949, when he again left because of illness. In 1946, Circulation Manager
Hartung told Moore that when he was physically able to return, if possible he
would be given his job back. Moore was in New Mexico during the last 6 months
of 1949, returning to Tampa December 20. He was sent for to do work, and did
work, for Respondent during Gasparilla week (the week of February 6, 1950),
when extra help was required. During this week no mention was made con-
cerning his returning permanently and Moore did not apply for steady work.
Moore had been caring for his ill mother, a duty performed by an older brother
during Gasparilla week. This brother visited his mother occasionally thereafter
but apart from his caring for her Gasparilla week, it appears that the mother,
who died about July 1950, was attended by Philip J. Moore, his wife, and his
daughter.
About April 26-between April 21 when Wilford announced to Foreman Peeler
he was chapel chairman of the Union, had shown Peeler by calling for a raising
of hands that Hughes, Parker, and Charles J. Moore were union adherents, and
Peeler had stated that others had tried organization and lost their jobs, and April
29, when Wilford was discharged-Assistant Circulation Manager Royer asked
employee Charles J. Moore to request Philip J. Moore to come and see him about
a fill-in vacation job. For several summers up to and including 1948, Respondent
had hired an extra hand to work in the mailroom substituting for mailers on
vacation. In 1949 the vacation work was covered by shifting truck drivers
around and having a mechanic working part time in the mailroom On or about
April 27 Moore, having made arrangements for someone to help his wife and
daughter look after his mother, went to see Royer and told him he was available
for fill-in vacation work. Royer asked Moore 3 what he thought about the Union.
3 Philip T Moore's testimony is credited although in part brought into question by testi-
money adduced by Respondent I do not credit Royer's testimony that Moore told him
he would join a union Moore has little or no concern in the outcome of the case. He
has slight, if any, interest in the Union, and none whatsoever in discliargee Wilford whom
he had never known or seen He is still in Respondent's employ Rather than having
any reason for being unfriendly with Respondent he is mole probably grateful to the
Company for its having given him work, despite his precaiions physical condition His
demeanor on the witness stand during both direct and cross -examination led me to the
belief he is a truthful, albeit, slow-witted person Certain wording in a notarized state-
ment signed by Moore tends to contradict part of his testimony The circumstances sur-
rounding the taking of this statement are, that Moore, after he became employed, was
escorted by Assistant Circulation Manager Royer to Respondent's counsel's office There,
in the presence of Royer , counsel dictated a statement , asking Moore to tell hint if lie were
wrong. The statement was tiaiiscribed and Moore signed it at Royer's or counsel's re-
quest. Although I am satisfied no deliberate attempt was made by counsel to pervert
the truth , I am convinced that in view of his and Royer ' s natural partisanship , the circum-
stances under which it was taken and Moore 's obviously sluggish mentality , the statement
does not iefiect the facts with complete accuracy I am more impressed by Philip J.
Moore's testimony in open bearing than by the implications of such an ex parte statement.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore replied he did not know anything much about the Union, he had never
belonged to one. Royer stated he could not-understand why Charles J Moore did
not go to him if he were not satisfied, in place of calling on outsiders Royer
informed Philip J. Moore he had not decided whether Respondent would hire an
extra man for vacations and during the course of the conversation asked Moore
if he was going to work permanently. Moore answered that he had to work
permanently somewhere soon if he could. During this conversation Royer did
not say anything about a permanent job. He stated he had to check the matter
of vacation work with Circulation Manager Hartung and requested Moore to
,communicate with him later. Moore telephoned Royer April 28 and was told
Royer had not had a chance to talk to Hartung. -Moore again telephoned Royer
about 3 p. in. Saturday, April 29. In the meantime Hartung had conferred with
Assistant Publisher Smiley. Moore was then told he was to be given a permanent
job and to report for work Monday, May 1.
After April 21 and before April 29, Assistant Circulation Manager Royer
asked employee Hughes what he thought he was going to gain by joining a
union, and whether he had a union card, and said he heard the boys were going
to have a union and asked, when Hughes stated he was not dissatisfied with
his employment, "well, then so you want a union on top of it'"; Royer asked
employee Parker what (he knew or thought) about this union business, if
temployee Spivey had signed 'a card, whether Parker was going to loin the
Union, what was his reason for joining the Union, and why he wanted to join
the Union; Royer asked employee Charles J. Moore what (he knew or thought)
about this union or racket, whether he was going to join or had joined the
Union, and what Moore was going to get out of it.
In addition to the statement made by Foreman Peeler in the presence of
employees Wilford, Hughes, Parker, and Charles J. Moore, he subsequently
told the latter in the presence of employee Nims that people could lose their
jobs monkeying around with the Union.
C. Conclusions
Wilford was hired to replace a mailer who had been discharged for intoxica-
tion. Neither at the time Philip J. Moore worked during Gasparilla week, nor
when this mailer was discharged for cause, nor when Wilford was hired, did
Respondent say anything to Moore about working permanently. Not until the
height of union activities in which Wilford took the leading part, did Re-
spondent communicate with Moore and then only with respect to his availa-
bility as a fill-in during vacations. Although Philip J. Moore had been rehired
by Royer, on February 10, 1947, upon his return from his first illness, without
ado or consultation with high management, Royer, in 1950 went to the pains
of consulting Circulation Manager Hartung, who in turn consulted Smiley
(treasurer, assistant editor, and assistant publisher) before hiring Moore on
,April 29, 1949. During a period of at least 3 days before April 29, Royer had
been considering the idea of getting Moore back to work, as is evidenced by his
requesting Moore's brother Charles to have Philip get in touch with him and
the two talks he had with Moore, before telling him to report for work on
May 1, 1950. Finally on April 29, Respondent discharged Wilford and an hour
and a half later the same day informed Moore he had been given a permanent
position. Significantly, Moore never applied for permanent work. Had he done
so, there would be more plausibility to Respondent's contention that it em-
ployed him to fulfill what it conceived to be a moral obligation. Certainly
hiring the handicapped is to be encouraged. But under the circumstances of
TAMPA TIMES COMPANY 233,
this case, I do not believe Respondent was actuated by any such worthy or
charitable motive. It is likewise significant that not until after Wilford was
discharged did Moore even know he was being considered for, or to be given,
a steady job
True, in conversation earlier in the week, when Royer had asked Moore if
he was going to work permanently, the latter replied he had to work somewhere
soon if he could. Respondent seizes upon this statement and argues that it
constitutes the first information it had that Moore was available for full-time
employment. The real import of Moore's statement, however, is that he needed
and would have to procure some sort of employment before long if he were able.
The fact that Moore did not ask Respondent for work, effectively negatives the
idea that he felt, as was the case after his absence between September 16, 1946,
and February 10, 1947, that Respondent had promised him employment were
he to seek it after quitting on July 11, 1949, or that the Respondent was there-
after under obligation to rehire him. Indeed, even in 1946, Respondent made
no unequivocal promise to reemploy Moore should he return. As testified by
Foreman Royer and Assistant Publisher Smiley, Moore was then told only that
he would be rehired if possible and that Respondent would make every effort
to return him to his work. It is most doubtful that after Moore had once
returned, again lost some time because of illness, and finally became obliged to
quit a third time, Respondent still anew gave him even as much assurance that he
could once more return to work as it had at the time of his first illness. By April
1949, it must have been apparent to Respondent that a person who had suffered
so many seriously disabling and recurrent illnesses could not be depended upor,
for lasting employment. Substantial proof of Moore's lack of physical ability
to engage in permanent work when he was rehired on April 29, lies in the fact
that he shortly thereafter-for a fourth time unfortunately was obliged to.
quit for 2 or 3 weeks on account of illness. I am convinced that had it not
been for Respondent's desire to find an excuse to get rid of Wilford, Respondent
would no more have sought out Moore for permanent employment the latter part
of April 1950 than it did when there occurred the vacancy which was filled by
Wilford If Respondent were sincere in its avowed belief that it owed any
obligation, it can hardly be that in March, it had completely forgotten the exist-
ence of its old employee, Philip J. Moore, who had temporarily worked for a,
week during the preceding month.
Both Assistant Circulation Manager Royer, despite his denial, as well as
Foreman Peeler knew that Wilford's activities were the prime factor in the
establishment of the Union among the mailers. This is sufficient to impute
knowledge to Respondent. Furthermore, I am convinced that these activities
were also known to Hartung and Smiley who made the ultimate decision to fire
Wilford. Although there is no direct testimony of this fact, Hartung had been
consulted by Royer, and Smiley, then in Washington, had been notified of the
union movement. Many circumstances surrounding Wilford's discharge point
to the interference of knowledge of his union activities : `
Having arrived at this stage, a backward glance at the mise en scene is
illuminative.
1. Friday, Wilford informs Foreman Peeler he is chapel chairman of the
Union.
IN L R B v Austin Co, 165 F. 2d 592 (C A 7), Standard Service Bureau, 87 NLRB
1405, El Paso-Ysleta Bus Line Inc, 85 NLRB 1149 and cases cited at p . 1159. Jackson
Daily News, 90 NLRB 565
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Saturday, Assistant Publisher Smiley learns of the union activity.
3. Monday and Tuesday, or within a day or so, Assistant Circulation Manager
Royer interrogates Hughes, Parker, and Charles J. Morris.
4. Wednesday, Royer sends for Philip J. Moore.
5 Thursday, Moore reports his availability for fill-in vacation work ; Smiley
,returns to town.
6. Friday, Royer informs Moore no decision reached.
7. Saturday, Royer consults Circulation Manager Hartung, Hartung consults
Smiley.
8. Saturday 3 p in, Royer hires Moore "permanently "
9. Saturday, 4: 30 p in, Royer fires Wilford.
I am satisfied, that having assured itself Philip J. Moore did not know much
-about and did not belong to the Union and having learned of and considered Wil-
ford's activity in introducing the Union to the hitherto unorganized mailroom,
Respondent laid a rather especial plot, which took 8 days in the hatching, to
recall Moore in order that it would have a pretext to get rid of Wilford and that
the real reason for the latter's discharge was his union activity.'
Foreman Peeler expressed resentment when he was informed of his subordi-
nate's union affiliation and both he and Assistant Circulation Manager Royer
-made clear their opposition to the Union by such conduct as asking employees
why "outsiders" were called in and referring to the Union as a "racket." They
engaged in threats and warnings to desist from union activity. On its own testi-
mony, Respondent admittedly interrogated Hughes, Charles J. Moore, and
Parker concerning their apparent union predilections. Warnings to refrain
from union activity,° and interrogation of employees concerning their own or
their fellow employees' union membership and sympathies,' all have been uni-
formly condemned as unlawful intrusions upon the employees' guaranteed right
:to uncoerced self-organization The interrogations in this case, followed
promptly by the discharge of the leader of union activities, is a pointed illustra-
tion of the Board's experience "that, by and large, employers who engage in this
-practice are not motivated by idle curiosity, but rather by a desire to rid them-
-selves of union adherents. In prohibiting interrogation, therefore, we are not
only preserving the employees' right to privacy in their union affairs ; we are
not only removing a subtle but effective psychological restraint on employees'
-concerted activities ; but we are also seeking to prevent the commission of the
-further unfair labor practice of discrimination by condemning one of the first
steps leading to such discrimination." Standard-Coosa-Thatcher Co., 85 NLRB
1358.
Respondent, while virtually admitting that employees were told the advent of
a union could be inimical to their jobs, takes the position that some of the mailers
5 Cf. N L R B v Bird Machine Company, 161 F. 2d 589 (C A 1) ; N L R B. v Ford
Bros , 170 F. 2d 735 (C A 6) ; N. L R B v. Geraldine Novelty Co , 173 F 2d 14 (C. A 2) ;
"Victor Mfg and Gasket Co v N L R B, 174 F 2d 867 (C A 7) ; N. L R B v Dixie
Bhart Co., 176 F 2d 969 (C A 4) , N L R B v Electric City Dyeing Co, 178 F 2d 980
(C. A. 3) ; N L R B v Greensboro Coca Cola Bottling Co. 180 F. 2d 840 (C. A 4) , and
Eastman Cotton Mills, 90 NLRB 31.
CE. g N. L. It. B. v. Fruehauf Ti ailer Co, 301 U S 49, 55. N. L R. B v. West Texas
Utilities Co , 119 F 2d 683, 684 (C A 5) ; A' L R B v. Brotan Paper Mill Co , 133 F 2d
988, 989 (C A 5)
7 E. g H. J. Hein-- Co v N L. R. B., 311 U S. 514, 518 ; N. L. R B. v East Texas Motor
Freight Lines , 140 F 2d 404, 405 (C. A 5) , N L R B v Seioell Iffy Co, 172 F 2d 459
^C. A 5)
TAMPA TIMES COMPANY 235
,might lose their jobs by virtue of the Union's downgrading them from journey-
men to apprentices and that accordingly, supervisory conduct in asserting that
others had tried organization around there and lost their jobs and that people
could lose their jobs monkeying mound with the Union, was exculpatory.
This position is untenable. Briefly, Respondent's supervisor assumed before
making the threats, the established fact that his auditors already had been
accepted as journeymen mailers by the Union 8 In the face of this settled fact
employees are not required or expected to look behind, the plain meaning of
coercive words to discover some abstruse or even unexpressed reason for their
utterance. Likewise the fact that Respondent had lived in amity with four
other unions does not disprove opposition to this Union Many a fond parent
of four resists the arrival of a fifth.
This case is a vivid example of discrimination. A union is organized. Recog-
nition is asked and deferred. There follow threats, interrogations, and then
the discharge, without previous notice, of the Union's outstanding protagonist.
The ostensi le reason given by management for the discharge is demonstrably
artificial and tenuous.' Thereafter Respondent requests, as is its right," a
Board election. Its hope is to forestall the success of an organization toward
which it has manifested its antipathy, by interrogating and threatening em-
ployees, waining them of untoward results of unionization and by setting
before them, as an example of the consequence of union activity, the fate of the
leader of their cause.
I conclude and find that: (a) A real reason for the discharge of Charles C.
Wilford, Sr, was his interest in and activity on behalf of the Union and that by
such discriminatory discharge, Respondent interfered with the hire and tenure
of employment of its employees, restrained, and coerced them in the exercise of
rights guaranteed by Section 7 of the Act, and thereby violated Section 8 (a)
(1) and (3) of the Act ; and (b) by threatening employees and interrogating them
concerning their interest in or activity on behalf of the Union and thereafter
discharging one of them, Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE$ UPON COMMERCE
The activities of the Respondent, as set forth in Section III, above, occurring
in connection with its operations described in Section 'I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
8 Respondent seems to question the Union 's right of making its own decision in classi-
fying Respondent 's mailers as journeymen . There stands unrefuted Wheat's testimony
that once a company has accepted an employee as a mailer he is acceptable for membership
in the Union ; when mailers are already doing the work prescribed by their employers the
Union regards them as journeymen ; under the contract that was presented to Respondent
all five mailers would be regarded as jouineymen and Respondent could employ an addi-
tional worker as an apprentice if it so desired , and the Union has tried to get Respondent
to hire a sixth employee as an apprentice but Respondent has refused
9N L R B. v Bird Machine Co, 161 F 2d 589, 592 (C. A 1) , N L R. B. v Condenser
Corp, 128 F. 2d 67, 75 (C. A 3).
30 (In the absence of proof Respondent took advantage of the Act's election provisions
as a procedural device by which it might secure the time necessary to defeat organizational
efforts )
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
action which I find will effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire
and tenure of employment of Charles C. Wilford, Sr , it will be recommended that
Respondent offer to him immediate and full reinstatement to his former or a
substantially equivalent position and make him whole for any loss of pay he
may have suffered as a result of the discrimination against him by payment
to him of a sum of money equal to that which he would have earned as wages
from May 6, 1950;1 to the date of the offer of reinstatement. Loss of pay shall
be computed on the basis of each separate calendar quarter or portion thereof
during the period from the Respondent's discriminatory action to the date of a
proper offer of reinstatement. The quarterly periods, herein called quarters,
shall begin with the first day of January, April, July, and October. Loss of pay
shall be determined by deducting from a sum equal to which he would normally
have earned for each such quarter or portion thereof, his net earnings, if any,
in other employment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. In
accordance with the Woolworth decision," it will be recommended that Respond-
ent, upon reasonable request, make available to the Board and its agents all
records pertinent to an analysis of the amount due as back pay.
The unfair labor practices found reveal on the part of the Respondent such
a fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless Respondent is required
to take some affirmative action to dispel the threat. It will be recommended,
therefore, that Respondent cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of rights guaranteed by
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. International Mailers Union is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating against Charles C. Wilford, Sr., in regard to hire and
tenure of employment, Respondent has engaged in and is engaging in unfair
labor practices Within the meaning of Section 8 (a) (3) of the Act.
3 By such discrimination and by interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
11 Wilford was paid 1 week in advance on April 29
12 F ti 7. Woolworth Co , 90 NLRB 289.