NLRB v. Lowell Sun Publishing Company
| Decision Date | 11 June 1963 |
| Docket Number | No. 6030.,6030. |
| Citation | 320 F.2d 835 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOWELL SUN PUBLISHING COMPANY, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
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Warren M. Davison, Atty., N. L. R. B., Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Harold B. Shore, Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner.
Robert H. Goldman, Lowell, Mass., with whom Frank Goldman and Goldman, Goldman & Curtis, Lowell, Mass., were on brief, for respondent.
Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.
This is a petition of the National Labor Relations Board for enforcement of its order issued on March 12, 1962, against respondent, Lowell Sun Publishing Company, following the usual proceedings under the Act. The Board, in adopting the opinion of its trial examiner found that respondent violated Section 8(a) (1) of the Act by interrogating and threatening an employee concerning his Union activity and by increasing the salary of another employee upon the latter's assurance that he would not support the Union. The Board further found that respondent violated Section 8(a) (3) and (1) by discriminating in regard to the tenure and terms of employment of certain of its employees. The evidence upon which the Board's findings are based may be summarized as follows.
Respondent is engaged in the publication of a daily and Sunday newspaper in Lowell, Massachusetts. In January 1961 the Union1 began an organizational campaign among respondent's employees and on January 15 conducted an organizational meeting. Shortly after these initial organizational efforts the events which form the basis of the instant charges took place.
Events relating to employee Dudley.
One Fred W. Dudley had been employed by respondent since 1934 and became a member of the reportorial staff in 1943. Dudley signed an application card to join the Union on January 4, 1961, and thereafter actively solicited support for the Union among respondent's employees. He was a member of the Union's organizing committee and known as such to respondent. During the week of January 23, Charles Harrington, editor of respondent's Sunday edition (and concededly a "supervisor" within the meaning of the Act) had a conversation with Dudley. Harrington asked Dudley how he "felt about the guild," to which Dudley responded that he "was for it 100 percent." Harrington then said that the Union had attempted to organize respondent's employees some years earlier and that "it threw him back five years." He then suggested that Dudley remove his name from the list of Union organizers and become a "secret member." However, Dudley replied that he had signed with the Union and would "stick with it." During the course of this conversation concerning the Union, Harrington also mentioned that "someone could be hurt."
On February 4, without prior notice and apparently without explanation, Dudley was notified by Harrington of his transfer from the Sunday paper to an assignment as Dracut County Reporter. Dudley remained on this daytime assignment until February 19, when City Editor Woodies told him that, effective the next day, he was being transferred to the night shift and ordered him to report at 11:30 p. m.
Events relating to employee Francis F. Breen, Jr.
Breen was employed as a sports writer by respondent in July 1948 and served continuously in that capacity, except for a period of military service, until discharged by respondent on March 20, 1961. His professional progress with the paper was apparently steady though unspectacular, and he was selected for several specialized assignments including that of respondent's television critic. In May 1958 Breen applied for and was given the assignment of Dracut County correspondent and in April 1960 he was given the additional assignment of writing a sports column. At this time he was given a $10 weekly pay increase.
On January 11, 1961, Breen signed a Union card, attended the meeting of January 15 and became known to respondent as a member of the Union organizing committee. The record indicates that he was an active Union booster among his co-workers.
On or about January 23, County Editor Killeen informed Breen that on orders from Managing Editor Connors, Breen was being replaced as Dracut County correspondent. When Breen inquired as to the reason, Killeen replied that Connors had mentioned "Complaints about his coverage of the Dracut news." The trial examiner credited Breen's testimony that he had received only one complaint from Connors relative to his coverage of the Dracut County news and that this had occurred one and one-half years earlier, in the summer of 1959.
The events leading up to Breen's ultimate discharge from the paper were as follows. On Saturday morning, March 11, Breen was assigned the duties of "desk man" in the sports department. Although the precise duties of a desk man and his responsibilities are somewhat in dispute, it is apparently the desk man's function to edit local and wire copy, to write headlines and to aid in the completion of the layout work prior to the copy going to the composing room. Once the first edition of the paper has been printed (at about noon), it is the desk man's duty to check the sports section of that edition for typographical errors, so that they might be corrected in the following edition. On March 11, Breen apparently performed most of his pre-printing duties and brought the copy to the composing room. Shortly thereafter, at about 9:45 a. m., he informed a fellow sports writer — Owen Flynn — who was also working in the sports department on the morning of the 11th, that he was leaving the paper early to attend a town meeting in Dracut. He requested Flynn to proofread the first edition for him, which Flynn did.
Breen attended the town meeting on March 11. This meeting was continued until the next Saturday, March 18 — a fact duly noted in the respondent's paper. Moreover, in the issue of Tuesday, March 14, Breen's sports column carried an extensive report on the March 11th Dracut town meeting. Shortly thereafter Breen received a memo from one of the respondent's owners to the effect that Breen should restrict his sports column to sports.
On Saturday, March 18, Breen was again assigned to the job of desk man in the sports department. Breen followed the same pattern as that of the preceding Saturday, leaving his post early, at approximately 9:45 a. m., after again asking Flynn to fill in for him. He told Flynn that he was going to the Dracut town meeting which, as noted previously, had been continued from the preceding week. Flynn told Breen that he thought he was "sticking his neck out." Breen "shrugged it off" with a vile and obscene remark and left for the town meeting.
At about 10:30 that morning, managing editor Connors called and asked for Breen. Flynn replied that he was not there, and that he (Flynn) did not know where he was or whether he was going to return that day. In fact Breen did not return to the office during the remainder of the day. At the hearing Connors testified that he knew that the Dracut town meeting had been adjourned to March 18th and that he had a suspicion that Breen might have gone there.
The following Monday, March 20, Breen was called into Connors' office. In response to Connors' questions, Breen stated that he had left the office early the previous Saturday, leaving Flynn to check the paper at noon. Connors then stated that Breen was discharged for "dereliction of duty."
Events relating to employee Weisberg.
During the week of July 10, one Samuel Weisberg, another of the employees who had identified himself as a member of the Union organizing committee during the previous January, was called into the office of Connors to get his paycheck. Weisberg was asked if he "was on Connors' side," to which he replied in the affirmative. Connors then said "You'll get a raise next week." The following Tuesday he received a $10.00 pay increase.
Based on the foregoing facts, the Board found that respondent violated Section 8(a) (1) of the Act by interrogating Dudley concerning his Union membership and by threatening him with reprisals therefor, and by granting a wage increase to Weisberg in order to dissuade him from supporting the Union. The Board further found that respondent violated Section 8(a) (3) and (1) of the Act by transferring Dudley because of his Union membership, to a less desirable work shift than he had previously enjoyed, by discriminatorily providing Breen with less employment than he would normally have had, and by discriminatorily discharging Breen on March 20, 1961.
At the outset, as the trial examiner pointed out, there is evidence in the record which indicates that respondent was opposed to the entry of the Union into the plant. Following the organizational meeting of the workers, twenty-six employees of the respondent designating themselves as "members of the committee to organize a Lowell Sun Unit of the Newspaper Guild of Greater Boston, AFL-CIO", on three separate occasions sent telegrams to Frank A. Lawlor, general manager of respondent asking that representatives of the Guild be given an opportunity to negotiate salary adjustments with respondent. Respondent made no reply to these telegrams but did put a photostatic copy of one of the telegrams on a bulletin board, together with a memorandum initialed by Lawlor. The memorandum stated that Lawlor had "no desire, inclination, or present intention to have any discussion with any other than fellow workers." Thereafter, a notice was posted on respondent's editorial room bulletin board, bearing Lawlor's signature, in which he cautioned the workers, inter alia, that they would gain more by independent action than by "believing...
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