Extract
Phoenix Newspapers, Inc., 827 (1963)
DECISION AND ORDER
On April 4, 1962, Trial Examiner Herman Marx 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 attached Intermedi142 NLRB No. 97.ate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' 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 [Chairman McCulloch and Members Rodgers and Leedom].The Board has reviewed the Trial Examiner's rulings made at the hearing and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in certain of Respondent's exceptions. Accordingly it hereby adopts the Trial Examiner's findings, conclusions, and recommendations only insofar as they are consistent with the following.Respondent is the publisher of a newspaper in Phoenix, Arizona.It has 40 employees in its maintenance department. Dissatisfied with the operation of the department, Respondent hired John McMullen as its new superintendent to reestablish discipline among employees in the department and improve their work performance. In an effort to bring up the standards of the janitorial work force and fulfill this assignment, between May and August 1961, McMullen found it necessary to discharge nine employees, or almost one-fourth of his entire work force. There is no allegation that any of these discharges were based upon union or other concerted activity. In addition to these 9,McMullen discharged Melvin Moore on August 19 and Othel a Walton on August 25, 1961. The General Counsel alleged, and the Trial Examiner found,, that the Moore and Walton discharges, unlike the previous nine discharges, were for discriminatory reasons. We disagree.In order to justify a finding that the discharges were discriminatory in this case, the General Counsel had to prove, among other things, either that Moore and Walton had actively engaged in union activities and that Respondent had knowledge thereof, or that Respondent believed they had engaged in such activity. The record shows that the Teamsters Union began organizational activities among the maintenance employees in July 1961 and filed a representation petition with the Board on August 7, 1961, which was dismissed by the Board on December 20, 1961, for the reason that the unit sought was inappropriate.2 Neither Moore nor Walton was a leader of, or especially active in, organizational activities. Moore's only participation in such activities was to distribute on July 27 typewritten announcements of the first union meeting to be held on July 30 and attendance at this and a few other union meetings. He also signed a union authorization card on July 30. Walton merely attended the July 30 meeting, at The Respondent's request for oral argument is denied , as the record , including the exceptions and briefs, adequately presents the issues and positions of the parties.2In 1959, the Board had also held that a unit of maintenance department employees was inappropriate and that only a residual unit would be appropriate.PHOENIX NEWSPAPERS, INC. 829 which he also signed an authorization card, and two subsequent meetings.The only support offered by the General Counsel to prove knowledge by Respondent of Moore's and Walton's union activity was the evidence of employee Theodore Williams who testified that 'about the 14th, 15th, or 16th of July [1961], somewhere along in there,' Superintendent McMullen summoned him and asked him what he knew 'about the union.' Williams truthfully replied that he knew nothing about it. McMullen then allegedly said, 'If you don't know anything about it, you can ask ... Melvin Moore or Othela Walton or one of these union guys.' McMullen categorically denied Williams' testimony. The Trial Examiner, in part, placed his own interpretation upon this testimony and credited Williams despite McMullen's denial that such a conversation occurred because McMullen, as a supervisor, allegedly was an interested witness, whereas Williams was not affirmatively shown to have any such interest or to have any prounion sentiment.There is, however, an inherent weakness in Williams' foregoing testimony which militates against its acceptance. Williams said the conversation with McMullen took place in the middle of July. The evidence is undisputed that Moore and Walton did, not engage in any kind of union activity until the end of July. Accordingly, if Willialns' own date for the conversation is accepted, it could not have occurred since McMullen could not have had the knowledge necessary to take part in it. To surmount this difficulty, the Tri...See the full content of this document
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