Times-Herald, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1980

253 N.L.R.B. 524 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Times-Herald, Inc. and San Francisco-Oakland
Newspaper Guild, Local 52, Newspaper Guild,
AFL-CIO. Case 20-CA-14708
November 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBEIRS
JENKINS AND PENEI.LO
On July 17, 1980, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Contrary to our dissenting colleague, we agree
with the Administrative Law Judge that the Re-
spondent did not violate Section 8(a)(1) of the Act
when, in response to a question asked by a supervi-
sory member of the unit, it told him there was a
way the employees could end the strike and re-
ferred him to the Regional Office of the Board.
The facts are undisputed. Under the terms of the
last collective-bargaining agreement the position of
sports editor was included in the bargaining unit.
During the negotiations for a new agreement, the
Respondent proposed that the position be excluded
from the unit. The Respondent continues to main-
tain this position but its proposal has not been ac-
cepted by the Union. On June 20, 1978, the Union
struck the Respondent. Shortly thereafter, the Re-
spondent hired permanent replacements for the
striking employees. Waters was hired as a replace-
ment for the striking sports editor.
On June 18, 1979, Waters initiated a conversation
with Langeliers, the Respondent's business man-
ager. He asked if there was any way to end the
yearlong strike. Langeliers indicated that there was
and gave Waters the phone number of the Region-
al Office of the Board. Thereafter, Waters received
a decertification petition from the Board which he
filed on June 25.1
The Administrative Law Judge found that while
Waters was a supervisor he was also a member of
the unit. Citing Montgomery Ward & Co., Incorpo-
We note, as did the Administrative Law Judge, that the filing of a
decertification petition by a statutory supervisor renders the petition in-
valid. Clyde J Merris, 77 NLRB 1375 (1948)
253 NLRB No. 66
rated, 115 NLRB 645 (1956), the Administrative
Law Judge found that the Respondent was not re-
sponsible for Waters' antiunion conduct absent evi-
dence that the Respondent encouraged, authorized,
or ratified the conduct or that the supervisor acted
in such a manner as to lead the employees to rea-
sonably believe that he was acting on behalf of
management. The Administrative Law Judge found
that there was no evidence of unlawful involve-
ment by the Respondent nor any evidence of the
employees' beliefs and dismissed the complaint.
Our dissenting colleague would not apply Mont-
gomery Ward & Co., because, inter alia, there was
no evidence that Waters, a replacement for his
striking predecessor, ever joined the Union or
"made common cause with the unit members."
However, Montgomery Ward & Co. does not re-
quire this evidence, and the Board has long held
that strike replacements-like Waters-are pre-
sumed to support the Union in the same ratio as
those they replace. The Board has also held that a
strike replacement is not presumed to reject the
union as his bargaining representative. 2
Nor do we share our dissenting colleague's belief
that the information Langeliers conveyed to
Waters constituted express authorization for his ac-
tions. Indeed, the test is whether the Respondent's
conduct constitutes more than ministerial aid. Con-
sequently, the Board found in Consolidated Rebuild-
ers, Inc.,3 that the employer's providing a list of
employee names and addresses to an attorney rep-
resenting a decertification committee was not a
violation. The Board has also refused to find a vio-
lation when an employer advised two union em-
ployees who desired to cross a picket line and
return to work to see an attorney. The Board
adopted the Administrative Law Judge's finding
that "[i]t appears that the lawyer merely answered
questions voiced by the employees, pointed out the
various legal activities they could engage in, and
left the decision up to them." 4 Finally, there is ab-
solutely no evidence that any employee reasonably
believed Waters was acting on behalf of manage-
ment. As found by the Administrative Law Judge,
the General Counsel failed to present any evidence
relating to the circumstances in which the solicita-
tions were made. We therefore cannot agree with
our dissenting colleague that Waters' conduct vio-
lated Section 8(a)(1) of the Act, and we affirm the
Administrative Law Judge's findings and dismiss
the complaint in its entirety.
See Pennco. Inc., 250 NL.RI No. 93 (1980). and cases cited therein
:' 171 NLRB 1415 at 1417 (1968).
4Solar .tircraji Company, 10() NLRB 130 at 134 (1954)
524
TIMES-HERAL.D, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
I dissent from my colleagues' affirmance of the
Administrative Law Judge's dismissal of the 8(a)(l)
violation based on Supervisor Waters' solicitation
of employee signatures on a decertification petition.
The facts show that the Union commenced to
strike on June 20, 1978, in support of its bargaining
demands for a successor contract to its prior col-
lective-bargaining agreement which had expired on
December 31, 1976. Waters was hired as permanent
striker replacement on July 17, 1978, into the posi-
tion of sports editor, a supervisory position and one
which was included in the contractual bargaining
unit description. In that position Waters exercised
supervisory authority, including effectively recom-
mending the hire of two sports reporters to replace
striking employees. On June 18, 1979, Waters asked
the Respondent's business manager, Langeliers,
how the employees could end the year-old strike.
Langeliers told Waters that he could not, on advice
of counsel, discuss such matters, but he responded
to Waters' question by describing in name or con-
cept the decertification process. He also furnished
Waters with the telephone number of the Board's
Regional Office. Waters thereupon obtained a de-
certification petition from the Board by mail, solic-
ited employee support therefor, and filed the peti-
tion with the Board's Regional Office on June 25,
1979.
From the foregoing, my colleagues have con-
cluded, in agreement with the Administrative Law
Judge, that Waters' solicitation of employee sup-
port is not unlawful under the principle of Mont-
gomery Ward & Co., Incorporated,5 which presumes
that a supervisor-bargaining unit member is not
considered by employees to be a representative of
management. Contrary to the majority, I find
Waters' de jure inclusion in the unit during the
strike to be an insufficient basis for application of
Montgomery Ward, supra. Certainly, there is no evi-
dence that Waters either joined the Union or in
any other manner made common cause with the
unit members. Moreover, the bare fact of inclusion
of the sports editor classification in the contractual
unit description, particularly here in the absence of
any agreement for almost 3 years, holds more sig-
s 115 NLRB 645 1956), enfd 242 F 2d 497 (2d Cir 1957), cert denied
355 U.S 829.
nificance as an historical fact than as a current in-
dustrial reality. On the contrary, the fact that
Waters was brought in as a strikebreaker hardly
could have been overlooked by the Respondent's
employees. In addition, Waters' employment in a
supervisory capacity during the strike, including
his part in hiring other strikebreakers, amply
served to distinguish him from the rank-and-file
employees, in their eyes.6 In sum, whether or not
Langeliers' assistance to Waters constitutes express
authority for attribution to the Respondent for
Waters' actions, which I believe to be the case, or
merely whether the employees reasonably believed
that Waters was acting on management's behalf, I
find that the instant facts clearly make out a viola-
tion of Section 8(a)(l) of the Act, and I would so
find. 7
s See Duo-Bed Corporation, 172 NLRB 1581, fn I (1968)
7 Assuning, rguiendo, as my colleagues contend, that Langeliers
merely gave ministerial aid rather than express authorl7atiorn or encour-
agement to the circulation of the decertification petition, their refusal to
hold the Respondent responsible for this concededl unlawful conduct s
a statutory supervisor, in reliance upon Montgomery HWard & Co., supra, is
clearly erroneous The Board, in Montgomery Ward, refused to attribute
to an employer otherwise unlawful threats and interrogation b a super-
visor-bargaining unit member based on a finding that the employees in-
volved regarded him as one of themselves and would not therefore con-
sider his statements or actions as those of management The Board's find-
ing therein was predicated on evidence of the union's agreement to that
individual's voting eligibility for inclusion in the bargaining unit, and had
the effect of carving out an exception to the principle of respondeat supe-
rior Here, the Respondent has failed to carry its burden of establishing
some evidentiary basis for concluding that the employees regarded
Waters, rather than Waters' predecessor, as one of themselves On the
contrary. the edence f Waters as a strikebreaker, statutory supervisor,
and circulator of an antiunion petition demonstrably identifies his inter-
ests as aligned with management rather than with those of rank-and-file
employees, and accordingly renders the .tonrtgomerr 4rd doctrine inap-
plicable herein.
DECISION
STATEMENT 01 T-HI CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This case was heard before me at Vallejo, California, on
May 1, 1980, pursuant to a complaint issued by the Re-
gional Director of the National Labor Relations Board
for Region 20 on December 17, 1979, based on a charge
against the Times-Herald, Inc. (hereinafter called Re-
spondent) filed by the San Francisco Oakland News-
paper Guild, Local 52, Newspaper Guild, AFL-CIO
(hereinafter the Guild or the Union), on July 12, 1979.
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the National Labor Relations Act (herein-
after called the Act) by circulating a petition among em-
ployees seeking to decertify the Union.
Respondent filed an answer to the complaint dated
December 28, 1979, and filed a Motion for Summary
Judgment with the Board on February 6, 1980. The Gen-
eral Counsel filed an opposition to Respondent's motion
dated February 15, 1980. On February 20, 1980, the
Board issued an order transferring the case to the Board
and an Order to Show Cause why Respondent's motion
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should not be granted. The General Counsel filed a
motion for reconsideration on February 26, 1980, and
Respondent filed a reply in opposition dated March 4,
1980. The General Counsel then filed a March 21, 1980,
motion to strike and motion for leave to reply to Re-
spondent's response. On April 7, 1980, the Board issued
an order denying Motion for Summary Judgment and re-
manding proceeding to Regional Director. Thereafter,
following issuance of notice of hearing, the case was
heard.
All parties were given full opportunity to participate
at the hearing, to examine and cross-examine witnesses,
to introduce other evidence, to argue orally, and to file
post-hearing briefs. Timely post-hearing briefs were re-
ceived from the General Counsel and Respondent.
Upon the entire record herein, including the motions
and supporting memoranda filed with the Board,' and
from my observation of the witnesses and their demea-
nor, I make the following:
FINDINGS OF FACT 2
I. JURISDICTION
Respondent is a newspaper publisher with an office
and place of business in Vallejo, California. It is there en-
gaged in the publication, circulation and distribution of
the Times-Herald, a daily newspaper, in the general area
of the city of Vallejo and Sonoma and Napa counties.
Annually Respondent receives in excess of $200,000 from
these operations. Further, it holds membership in or sub-
scribes to various interstate news services, including the
Associated Press, publishes various nationally syndicated
features, including the Jack Anderson column and adver-
tises nationally sold products, including items offered for
sale by Safeway Stores.
II. I.ABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
IIll. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Basic Issues
The General Counsel contends that Respondent,
through its alleged supervisor, Sports Editor Richard L.
Waters, solicited employees to sign a petition opposing
continued union representation. The General Counsel
contends the conduct of Waters is attributable to Re-
spondent as its agent and thereby violates Section 8(a)(l)
of the Act. Respondent admits neither the supervisory
status of Waters nor the conduct attributed to him. It
further avers that Waters was a member of a bargaining
unit which the Union represented. This fact, Respondent
argues, saves Respondent from responsibility or account-
The General Counsel objected to the receipt into evidence of the
motions and supporting memoranda filed by the parties with the Board I
consider these documents to constitute a necessary portion of the formal
papers laying the basis for the hearing in the case.
2 The record evidence was substantially undisputed. Except where spe-
cifically noted, there was no factual dispute as a result of the pleadings,
stipulations or the uncontested testimony of credible witnesses.
ability for any otherwise wrongful actions alleged to
have been committed by Waters.
B. Facts
1. Background
The Guild has represented Respondent's editorial and
advertising employees for some period. The last collec-
tive-bargaining agreement between the parties expired on
December 31, 1976. The Guild began a strike against Re-
spondent on June 20, 1978, in support of its bargaining
demands. The strike continued as of the time of the hear-
ing.
The editorial department of Respondent has approxi-
mately 29 employees. The department staff consists of
the Editor, the Managing Editor, four subeditors-the
sports, panorama, city, and news editors, and other news
employees. The sports department in turn is staffed by
the sports editor and three sports reporters. Under the
terms of the most recent contract, the sports editor was
included in the bargaining unit. Respondent in late 1976
sought in contract negotiations with the Guild to exclude
the panorama and sports editor positions from the bar-
gaining unit as supervisory positions. While the proposal
concerning the panorama editor was subsequently with-
drawn, Respondent maintained its position with respect
to the sports editor after the commencement of the
strike. There is no evidence in the record to indicate that
the Guild has at any time accepted the proposal to
remove the sports editor from the unit or that Respond-
ent unilaterally implemented its proposal. Presumably the
unit remains as described in the most recent contract.
When the strike commenced, the then sports editor, a
member of the Guild, the other sports department em-
ployees, and other employees in the bargaining unit
ceased work and struck in support of the Guild. It ap-
pears that soon thereafter all the striking employees were
permanently replaced and, so far as the record reflects,
none of the striking employees have returned to work.
2. The hiring and duties of Sports Editor Richard
L. Waters
With all the employees in the sports department and
other employees supporting the strike, Respondent began
to hire permanent replacements in June 1978. Approxi-
mately 28 employees were hired within a short period of
time. Waters was hired on July 17, 1978, as the sports
editor and remained in that position as of the time of the
hearing. One sports department employee, sports report-
er Jeff Rubin, had been hired just before Waters had
been hired. Sports reporters, Cary Rubin and Ken Rich-
ardson, were hired within a few weeks after Waters.
Waters was hired at a time when the strike replace-
ment hiring program was underway. At the time of his
hire he was informed that he would have a role in hiring
sports reporters for the two remaining vacancies caused
by the strike. Waters interviewed prospective applicants
and did not bring to higher management's attention those
applicants he felt were not satisfactory. Waters recom-
mended the hire of Richardson to Editor Jimmy Jones
after interviewing him. Based on Waters' recommenda-
526
TIMES-HERALD. INC.
tion, Jones authorized Waters to hire Richardson as a
sports reporter and Waters hired him. Gary Rubin, too,
was interviewed and recommended for hire by Waters.
The sports editor functions as a sports reporter along
with the three sports reporters in the department. He is
also responsible for scheduling and coordinating the ac-
tivities of the sports reporter and has authority to make
and shift their assignments as necessary. He has responsi-
bility for the quality and form of new articles in the
sports department. While better paid than his reporters,
the sports editor was at all times a bargaining unit or
contract position. Waters was told at the time of his hire
that he would be paid pursuant to the contract. There is
no record evidence that the sports editor classification
ever ceased to be treated as a unit or contract position.
Waters at no time became a member of the Guild.
3. June 1979
In early June 1979, Waters and other employees noted
that the strike was approaching its anniversary. On June
18, 1979, Waters initiated a conversation with Business
Manager Duane Langeliers, an admitted supervisor, in
Langeliers' office.
Waters raised the subject of the strike. He noted that
the strike was soon to be a year old and asked if that fact
meant that the strike would then end. Langeliers said the
strike would not end and also noted that, on advice of
counsel, he could not discuss the matter with Waters.
Langeliers added however that he could answer ques-
tions put to him by Waters. Waters asked if there was
any means whereby the employees could end the strike.
Exactly what was said next is somewhat unclear. In any
case, Langeliers described by name or concept the decer-
tification process available to employees covered by the
Act. Langeliers did not elaborate, but referred Waters to
the Regional Office of the Board proffering the Board's
telephone number. At the time of this conversation
Waters had been unaware of the decertification proce-
dure.
Waters contacted the Board office and ultimately re-
ceived a decertification petition in the mail from the
Board. He solicited employee signatures in support of the
petition during the interim period and filed it on June 25,
1979.
The petition, docketed as Case 20-RD-1574, is
blocked by the instant case.
There was no evidence introduced of other employer
unfair labor practices or union animus generally.
C. Analysis and Conclusions
1. The supervisory status of Waters
Waters clearly effectively recommended the hire of
employee Richardson and played a role in the hiring of
Gary Rubin. The exercise of this authority alone is suffi-
cient to render him a supervisor within the meaning of
the Act. Further his duties generally as the sports editor
in coordinating and reviewing the work flow and work
quality within the sports department coupled with his re-
sponsibilites to interview and screen job applicants aug-
ment this finding. While he was clearly a low-level su-
pervisor, there is no doubt, and I find, that Waters, as
sports editor, was at all relevant times a supervisor
within the meaning of Section 2(11) of the Act.
2. The unit status of Waters
The previous sports editor was a member of the Guild
and a striker on its behalf. The most recent contract
clearly covered the sports editor position both by its lan-
guage and the practice of the parties. When Waters was
hired he was told the contract applied to his position.
There is no evidence that his inclusion in the unit was
ever changed. These facts clearly indicate that the posi-
tion of sports editor was a unit position and that Waters
as sports editor was in the unit.
During negotiations both before and after the strike's
commencement, Respondent sought to exclude the sports
editor position from the bargaining unit as supervisory.
There is no evidence however that Respondent imple-
mented its proposal unilaterally or that the Guild agreed
to delete the sports editor position from the unit. I am
unable to find that Respondent's proposal changed the
scope of the unit without evidence of a change in inter-
pretation or application of the contract by the parties.
Accordingly, I conclude that at all times relevant the po-
sition of sports editor was a unit position and that Waters
was a unit member.
3. Whether Respondent initiated, encouraged, or
ratified Waters' conduct in soliciting employee
support for the decertification petition
The General Counsel argues that Respondent bears lia-
bility for Waters' actions, in part, because it initiated or
encouraged them. The record shows that Waters came
to Business Manager Langaliers' office on his own
motion and inquired concerning the effect of the upcom-
ing anniversary of the strike. In that meeting Waters
learned from Langeliers that a method of decertification
existed. Waters left this meeting with the phone number
of the Regional Office of the Board supplied to him by
Langeliers. He then commenced the decertification proc-
ess including his solicitation of employees.
I have examined the Langeliers-Waters conversation to
determine if Langeliers' question-answer limitation was
designed to be a Socratic dialogue or other coded com-
munication intended to induce Waters to file a decertifi-
cation petition. I do not find that the conversation was
so intended or had that effect. Waters raised the issue of
the strike. Langeliers correctly noted it would not end
by mere passage of time. Waters then inquired if there
was any means of ending the strike; i.e., removing the
Union. Langeliers replied with information either specific
or general about the existence of the decertification proc-
ess.3 While it is true that until this moment Waters did
not know about the possibility of decertification, I
cannot say that telling an individual who is seeking to
remove the union that a decertification procedure exists
is encouraging or inducing him to undertake such a
course of conduct. Nor was it improper to supply
3 It is unnecessary to resolve the variance in the versions f the con-
versation Were it necessary I would credit Langeliers who it seemed to
mc had a better memory of the events
527
DECISIONS OF NATIONAL. LABOR REI.ATIO()NS 13)ARD
Waters with the Board's telephone number. This is the
sole conversation in evidence supporting the General
Counsel's inducement theory.4 1 cannot find that this evi-
dence is sufficient to sustain the General Counsel's
burden of proof with respect to this aspect of its case.
Based on all of the above, I find that Respondent at no
time induced, encouraged, authorized, or ratified Waters'
actions in seeking employee support of the decertifica-
tion petition.
4. Is Respondent liable for the acts of Waters in
soliciting employee support for a decertification
petition? 5
The resolution of the threshold issues, supra, leaves but
a single narrow question remaining: Is an employer liable
for the conduct of its low-level supervisor who is also a
member of the bargaining unit if the supervisor seeks em-
ployee support for a decertification petition?6 While
narrow, the question presented requires a step by step ex-
plication of applicable principles.
Correctly, all parties accept the proposition that an
agent of management cannot become involved in procur-
ing employee support for an antiunion petition without
violating Section 8(a)(l) of the Act. The parties further
agree that, while generally an employer is liable for the
conduct of its supervisors, the situation where a supervi-
sor is also a bargaining unit member presents a special
case. The oft-cited case in the area, Montgomery Ward &
Co.. Incorporated,7 sets the following standard:
Statements made by such a [unit member] supervi-
sor are not considered by employees to be the rep-
resentations of management, but of a fellow employ-
ee. Thus they do not tend to intimidate employees.
For that reason, the Board has generally refused to
hold an employer responsible for the antiunion con-
duct of a supervisor included in the unit, in the ab-
sence of evidence that the employer encouraged,
authorized, or ratified the supervisor's activities or
acted in such manner as to lead employees reason-
4 There is o evidence ill the record of any contact with employees by
any supervisor save Waters concerning the Union. As noted, nfra, the
only evidence concerning Waters' contact with employees is that he so-
licited support for the petition from unnumbered and unidentified em-
ployees between June 18 and June 25, 1979.
' The General Counsel has not alleged the actual filing of the decertifi-
cation petition as a violation of the Act. Nor is the validity of the petition
dependent on a finding of a violation in the instant case. It would seem,
unlike the unfair labor practice issue heiin, that a per se' rule exists under
Sec. 9 of the Act rendering any decertification petition filed by a statu-
tory supervisor invalid. Clyde J Merris, 77 NLRB 1375 (1948); Modern
Hard Chrome, etc., 124 NLRB 1235 (1959); Morganton Full Fashioned Ho-
siery Co., 102 NLRB 134 (1953) cf. Star Brush Manufacturing Co., Inc.,
100 NLRB 679 (1952)
6 The question presented must be resolved without consideration of the
circumstances of the solicitation or the identity of the employees solicit-
ed. The sole evidence in the record concerning Waters' actions is his bare
assertion that he solicited employee signatures as part of a showing of
interest in support of a decertification petitionl which he subsequently
filed with the Board. There is no evidence concerning the number of m-
ployees who were solicited, what the circumstances of the solicitations
were, what was said to the employees. or if Waters supervised the em-
ployees he solicited
' 115 NLRB 645, 647 (1956), enfd. 242 F.2d 497 (2d Cir. 1957). cert.
denied 355 U.S 829 (1957).
ably to believe that the supervisor was acting for
and on behalf of management.
The General Counsel established a prima facie viola-
tion of Section 8(a)(l) of the Act when it proved that a
supervisor in Respondent's employ solicited employee
support for a union decertification petition. Respondent,
however, has established, by way of an affirmative de-
fense, that the supervisor was also a unit member. In my
view, Montgomery Ward and its progeny" estabish a
burden on the General Counsel in such circumstances to
produce evidence either (1) of Respondent's encourage-
ment, authorization, or ratification of the conduct which
I have found, supra, did not occur or (2) of conduct
which might lead employees reasonably to believe that
the supervisor was acting for and on behalf of manage-
ment. Since the record is totally devoid of evidence con-
cerning the solicitations,9 or indeed any Respondent-em-
ployee contact other than the solicitations by Waters, it
follows that the General Counsel has failed to meet its
burden and the complaint must be dismissed. This is so
because Montgomery Ward requires affirmative evidence
by the General Counsel lacking on this record.
The General Counsel argues in its memoranda to the
Board and on brief to me that the force of Montgomery
Ward has been lessened if not reversed, sub silentio, by
the Board in Roman Catholic Diocese of Brooklyn, Henry
Hald High School Association, Nazareth Regional High
School, 222 NLRB 1052 (1976), reversed in relevant part
sub nom. Nazareth Regional High School v. N.L.R.B., 549
F.2d 873 (2d Cir. 1977). There the Board, reversing the
administrative law judge, found both the filing of a de-
certification petition and the solicitation of employee sig-
natures in support thereof by statutory supervisors violat-
ed Section 8(a)(l) of the Act. This was so, even though
the supervisors were within the bargaining unit. While
the factual basis of the case when compared to its ulti-
mate holding does raise certain questions concerning the
continued vitality of Montgomary Ward, I note that the
Board did not overrule Montgomery Ward or directly ad-
dress the Montgomery Ward line of cases in its deci-
sion.'° Accordingly I find that Roman Catholic Diocese
of Brooklyn has not reversed or modified Montgomery
E.g., Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174
(1957); Dayton Blueprint Company, Inc.. 193 NLRB 1100 (1971) C
Markus lHardware, Inc., 243 NLRB 903 (1979); Breckenridge Gasoline
Company, 127 NLRB 1462 (1960).
9 In his brief the General Counsel notes the relationship of the sports
reporters to the sports editor in arguing that the solicitations were viola-
tive of the Act. There is no record evidence identifying who among Re
spondent's employees ssas solicited by Waters. Therefore I cannot con-
elude that sports reporters were solicited. Nor can I make assumptions
that solicited employees would have been implicitly or expressly aware
of Waters' s,servisory status because of Waters' conduct or otherwise.
The record is simply devoiJ of any evidence on which to make such a
finding. The relationship of the sports department and the sports editor to
solicited employees is totally unknown in this record.
'o While the decision of the U S. Court of Appeals for the Second Cir-
cuit in Nazarelh is not binding on me, it was on the basis of a Montgomer
Ward analysis that the court reversed the Board Presumably, were the
Board to have abandoned or overruled Montgorery Ward, its counsel
would have made such an argument to the circuit court in the enforce-
merit litigation in Nazareth.
528
TIMES-HERALD, INC.
Ward and accordingly that the latter's teachings must
control this case.
The General Counsel also argues that the relationship
of Waters to the other employees must be viewed in the
context of the year-old strike and the fact that the strik-
ing employees had been permanently replaced. The fact
that the entire current sports department staff was hired
after the commencement of the strike by the Guild and
the fact that the strike continued during the events in
issue are relevant factors in considering if employees
viewed Waters as a fellow employee or as a supervisor.
What defeats the General Counsel's argument, in my
view, is the complete paucity of evidence concerning the
identity and circumstances of the solicitations or what, if
anything, was done by Respondent to make employees
reasonably believe Waters was acting for and on behalf
of management when soliciting support for the antiunion
petition. I agree that the strike and other circumstances
are proper factors to be considered as part of the context
of events. I am unable to consider them sufficient, stand-
ing alone, to support a finding that employees viewed
Waters' conduct herein as "supervisory."
Board law in this area, in my view, requires a case-by-
case analysis of the solicitations with consideration of all
relevant factors which could affect employee perception
of the role of the supervisor-unit member. I believe the
General Counsel, by not adducing evidence of the solici-
tations or of how employees perceived Waters, is seeking
to apply a per se rule in effect, reversing Montgomery
Ward. I reject any such per se rule as contrary to long-
standing Board law. I do not find such a per se rule con-
tained in the Roman Catholic Diocese of Brooklyn case.
Accordingly I find that the General Counsel has failed to
sustain his burden of proof concerning the allegation.
5. Summary and conclusions
I have found Sports Editor Waters to be a statutory
supervisor and a member of the bargaining unit. I further
found that between June 18 and 25, 1979, he solicited
certain unidentified employees of Respondent to support
a petition seeking to decertify the Guild as representative
of Respondent's employees.
I have found that the holding of Montgomery 1 Ward as
applied to this case was unmodified by the Board's deci-
sion in Roman Catholic Diocese of Brooklyn. Accordingly
the instant case requires an examination of the circum-
stances of the solicitation and the actions of the Re-
spondent in identifying Waters as its agent to determine
if the employees solicited could have reasonably believed
Waters was acting for management in soliciting support
for the decertification petition. There being no evidence
of the circumstances of the employee solicitation or Re-
spondent's holding out to employees the authority of the
sports editor, I find that the General Counsel has not met
his burden of proof in the case. Accordingly, I shall dis-
miss the complaint.
CONCUSIONS OF LA"W
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent bears no responsibility for the conduct
of its statutory supervisor, Sports Editor Waters, in solic-
iting employee support for a petition to decertify the
Union.
4. For the reasons specified in paragraph 3, above, Re-
spondent did not violate Section 8(a)(l) of the Act as al-
leged in the complaint.
(Recommended Order for dismissal omitted from pub-
lication.]
529