Chronicle Publishing Co., Inc.

CHRONICLE PUBLISHING COMPANY, INC. 519 ber constitute separate appropriate units. The record reveals that since 1945 the Intervenor and the Association have continued the bargaining pattern found by the Board to warrant establishing a single Association multiemployer bargaining unit for members in the Peabody, Salem, and Danvers area. It has been the practice, both before and after the Board's decision, for the Association to bargain jointly on behalf of these Members and for each employer-member individually to sign without change identical bargaining contracts negotiated in their behalf by the Association. We find, therefore, that a multiemployer unit rather than the separate member-employer units urged by the Intervenor is appropriate.10 Accordingly, we find a single unit consisting of the above-described employees of Association Members in the Peabody, Salem, and Dan- vers area, is appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Elections omitted from publication.] 10 See Tin ted Productions of America, Ill NLRB 390; Block Cut Manufacturers, Ino., 111 NLRP, 26th The Intervenor alternatively urged at the hearing that if a multiemployer unit is found appropuate, it should include five member-companies which are located outside the Pea- body, Salem, and Danvers area and which were excluded from the area unit previously found appropriate by the Board in 1945 The record reveals that the Association has at times and in vaayuag degrees, assisted these five members in bargaining for their respec- tive units of has bargained on their behalf, and at times such bargaining has occurred concuirently with the area bargaining However, this was likewise the practice before the Board's unit determination in 1945, and the present record clearly reflects an intent by the pasties to the area bargaining, as well as those members excluded therefrom, to pursue a course of b.ngaining in conformity with the Board's area unit determination. In view of the teiegoing, we find no persuasive ieason foi distuibing the successful history of multiemployer bargaining confined to Dlembeis in the Peabody, Salem, and Danvers area See Ars Conditioning Company of Southern Calafornea, 81 NLP.B 946, 952. Chronicle Publishing Company, Inc. and Lynn E. Boyd. Case No. 35-CA-531. April 39, 1955 DECISION AND ORDER On October 29, 1954, Trial Examiner Lee J. Best issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, the Respondent Com- pany filed exceptions and brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record 112 NLRB No. 69. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications : Chronicle Publishing Company, Inc., Respondent herein, is an In- diana corporation engaging in the publication of newspapers and the operation of a radio station. During the year 1953, the Respondent's gross revenue from the publication of the Marion Leader Tribune, Marion Chronicle, and Marion Chronicle Tribune was in excess of $1,000,000. We find, as did the Trial Examiner, that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.' 1. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act by discharging Lynn E. Boyd because he engaged in concerted activities with other employees for the purpose of col- lective bargaining, or other mutual aid or protection, and thereby in- terfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. We agree with this finding. In addition, the Trial Examiner found that the record did not contain substantial evidence showing that Boyd's discharge was intended to or had the effect of encouraging or discouraging membership in a labor organization, and he found no violation of Section 8 (a) (3) of the Act. We disagree with the Trial Examiner's failure to find that Boyd's discharge also violated Section 8 (a) (3) of the Act. The Respondent and Marion Typographical Union No. 286, Inter- national Typographical Union, AFL, hereinafter called the Union, had been bargaining over a profit-sharing plan. The plan, as urged by the Respondent had been accepted by other employees, but had been rejected by the Union which represented the employees in the composing room. In January 1953, the Respondent, represented by President Thomas and Vice-President Edward W. Camp, held a meet- ing at the radio station with the employees of the composing room, all of whom were members of the Union, to discuss the profit-sharing plan. During the course of the meeting, Boyd, who "had led the opposition to the plan" in the Union, interposed objections to the plan, and expressed doubts as to whether it would be equitably ad- ministered by the Respondent. In reply to his queries, Thomas as- serted that "The Chronicle Publishing Company always does things on the up and up." Boyd credibly testified, on this point, that Thomas accused him of questioning his integrity and then stated, "If you think we are that kind of bastards, you oughtn't to work for us." 2 Thomas also told Boyd during a discussion of wages that if he "wanted other kinds of wages to go to other towns." 1 The Daily Review, Inc, 111 NLRB 763; The Dash Press, Incorporated, 110 NLRB 573 2 Although Boyd originally attributed these remarks to Camp , as the Trial Examiner finds, he later corrected his testimony and testified that these remarks were made by Thomas CHRONICLE PUBLISHING COMPANY, INC. 521 At a negotiating meeting in January 1954, attended by Thomas and Camp, Boyd, who was at that time president of the Union and mem- ber of the Union's scale committee, expressed doubts concerning Thomas' explanation of a past wage increase. At this point, ac- cording to Boyd, Thomas said, "Are you questioning my integrity?" 8 Thereafter he abruptly closed the drawer of his desk, and the meeting came to a temporary halt. On the following day, Thomas told the chairman of the union scale committee that lie intended to charge Boyd with insubordination. It appears that sometime later, Boyd, as president of the Union, initiated a proposal to withdraw the use of a union label appearing on the editorial page of the Respondent's newspapers. International Representative John Pilch concurred in the proposal and attempted to persuade the local Pressmen's Union to do likewise. On March 3, 1954, President Thomas approached Boyd at work in the composing room and said, "I understand that you are attempting to withdraw the label." When Boyd replied that this was true, Thomas retorted "Well, that's the kind of game you are playing," and, according to Boyd, Thomas added, "I'm glad to hear this, I'll start making prep- arations immediately." On Monday, March 8, 1954, Boyd, as president of the Union, caused a letter dated February 22, 1954, from C. F. Pauley & Co., Inc., to, Harold Winchell, secretary of the Union, to be posted on the bulletin board in the composing room 4 On March 7, 1954, Boyd was reelected as president of the Union for another term, and on the evening of March 8, 1954, he was dis- charged by Camp, under the circumstances which are completely set forth in the Intermediate Report. It is clear from the foregoing that Boyd, Respondent's "best" and "most efficient" linotype operator, made himself obnoxious to the Respondent through his union activities. This resentment by the Respondent and Camp of Boyd's union activities became clear when Camp told Boyd, at the time of Boyd's discharge, that "I [Camp] don't care what any other man does, you're the guy I'm after, you are the trouble maker here," and "You are just leading these men into a bunch of trouble."' Moreover, Prail testified that at a negoti- ating meeting in March 1954 Thomas stated that Boyd was a "trou- 3 Thomas admits that he told Boyd, "It's a good idea , I believe, for you not to stick your chin out," or words to that effect 4 The union membership had agreed at a union meeting on March 7 that such letter should be posted This letter indicated that C E Pauley & Co , Inc , wished to employ one or more linotype operators , and requested the name and address of a linotype operator who might wish to make a change and join the forces of its printing plant in Indianapolis 6 The Respondent contends that Camp was not motivated by Boyd 's "concerted activities" or "union activities" and they were unrelated to Camp. However , Camp is the Respondent's vice president and was present at those meetings which produced certain differences between Thomas and Boyd , and it appears, as set forth herein, that Camp , as well as President Thomas, resented Boyd for his method of conducting his union activities. ,522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD blemaker." In addition, Thomas, while referring to Boyd's discharge, indicated that Boyd had questioned his integrity at two past meet- ings. It further appears that another of Boyd's union activities also came in for criticism by Camp and Thomas. Thus Thomas stated, sometime after the discharge, that he did not like the method that was used in pulling the union label. Camp, during a meeting with the Union also expressed resentment that the label had been withdrawn by the Union and stated that if the Respondent "lost one dime" over the Union pulling the label from the paper, he [Camp] would "sue the Union for everything they had." As noted elsewhere, Boyd had admitted to Thomas, shortly before his discharge, that he was endeavoring to have the label pulled. All of the foregoing, as emphasized by Thomas' statement to Boyd in a telephone conversation after his discharge that he [Boyd] was not with them now because he had questioned his [Thomas'] integ- rity and that Thomas hoped Boyd had learned his lesson,6 clearly points to the conclusion that the motivating factor for Boyd's dis- charge was the Respondent's resentment of Boyd's union activities and his zealous and outspoken efforts in dealing with the Respondent as an active union member or as its president. In view of the circumstances surrounding Boyd's discharge which, in ,our opinion, were directly related to his activities as active union ad- herent and later president of the Local, we find that the discrimination in regard to his tenure of employment had the effect of discouraging membership in a labor organization in violation of Section 8 (a) (3) of the Act. Unlike the Trial Examiner, we cannot, in the face of these facts which unquestionably stein out of Boyd's union activities, limit our finding solely on a violation of Section 8 (a) (1). The situation here under consideration is uniquely illustrative of discrimination in violation of Section 8 (a) (3) which discourages membership and activity in a labor organization. Accordingly, we find that Boyd's discharge was violative of Section 8 (a) (3) and8 (a) (1) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act the National Labor Relations Board hereby orders that Chronicle Publishing Company, Inc., Marion, Indi- ana, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Marion Typographical Union No. 286, International Typographical Union, AFL, or any other labor or- 6 Indeed , Thomas admits that he told Boyd that "this should teach him a lesson ; ques- tioning my integrity out at the radio station back there in February or the latter part of Januaiy was enough and I should have fired him then, and I believe I should have " CHRONICLE PUBLISHING COMPANY, INC. 523 ganization of its employees by discriminating in regard to the hire and tenure of their employment or any term or condition of employ- ment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form,. join, or assist Marion Typographical Union No. 286, International Ty- pographical Union, AFL, or any other organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Offer to Lynn E. Boyd immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; and make him whole for any loss of pay suffered by reason of the discrimination found herein against him, in the manner and to the extent set forth in section V of the Intermediate Report, entitled "The Remedy." (b) Post at its printing plant in Marion, Indiana, copies of the notice attached to the Intermediate Report marked "Appendix."' Copies of said notice to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by Respondent's rep- resentative, be posted by it immediately upon receipt thereof, and main- tained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Upon request, make available to the Board and its agents all books, payrolls, and other records, necessary to analyze, compute, and determine the back pay and other emoluments to which Lynn E. Boyd maybe entitled under the requirements of this Order. (d) Notify the Regional Director for the Ninth Region (Cincinnati, Ohio), in writing, within ten (10) days from the date of this Order,. what steps the Respondent has taken to comply herewith. MEnn1ru LEEDOM took no part in the consideration of the above Decision and Order. 7 This notice shall be amended by substituting for the words " The Recommendations of a Trial Examiner" the words "A Decision and Older" In the event that this Order is enforced by deciee of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Corn t of Appeals, Enforcing an Order." Z24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These proceedings authorized by Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136 , herein called the Act, were initiated pursuant to a charge filed on March 29 , 1954, by Lynn E. Boyd, an individual , against Chronicle Publishing Company, Inc., herein called the Respondent . The General Counsel of the National Labor Relations Board, herein separately designated as General Counsel and the Board, on June 22, 1954 , issued a complaint alleging that the Respondent en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) of the Act, affecting commerce within the meaning of Section 2 (6) and (7) of the Act . Copies of the charge and the complaint were duly served upon the Respondent, who in due course filed an answer denying that it was engaged in com- merce within the meaning of the Act , and denying all allegations of unfair labor practices. With respect to unfair labor practices , the complaint particularly alleges in sub- stance that on or about March 8, 1954 , the Respondent by and through its agent, Edward W. Camp, discharged Lynn E. Boyd (employee) by reason of his member- ship in and efforts on behalf of Marion Typographical Union No. 286 , affiliated with the International Typographical Union, AFL , herein called the Union, thereby dis- criminating in regard to hire or tenure of employment or other terms or conditions of employment to discourage membership in a labor organization in violation of Sec- tion 8 (a) (3) and ( 1) of the Act. Notice of hearing was duly served upon all parties, and a hearing was conducted at Marion, Indiana, on July 20-22, 1954 , before the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented and participated in the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues involved. When all evi- dence had been introduced , a motion by General Counsel to conform the pleadings to the proof as to minor matters such as spelling of names, dates , etc., was granted with- out objection . Oral argument on the record was waived by all parties . All parties were given time to file written briefs and/or proposed findings and conclusions. In due course written briefs were filed by counsel for the General Counsel and the Re- spondent, which have been given due consideration. Motion filed by Respondent to dismiss the complaint for failure to allege facts constituting an unfair labor practice within the jurisdiction of the National Labor Relations Board was deferred, and is now denied, for reasons hereinafter set forth in this report. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Chronicle Publishing Company, Inc., is an Indiana corporation with its principal ,office and place of business at Marion , Indiana, where it engages in the publication of newspapers and operates a radio station for commercial purposes . It publishes the Marion Leader Tribune, a morning daily newspaper having a circulation of approxi- mately 8,600 copies, the Marion Chronicle, an evening daily newspaper having a cir- culation of approximately 12,300 copies , and the Marion Chronicle Tribune, a Sun- day newspaper having a circulation of approximately 19,800 copies . Both daily newspapers are published 5 days per week. During the year 1953 , Respondent received from the sale of newspapers revenues in the sum of approximately $240,000. Seventy-five percent of the total circulation was sold to carriers for home deliveries, 20 percent was delivered to subscribers by mail, including 157 copies ($ 1,500) to vacationers or residents in other States, and approximately 5 percent was sold to wholesalers for distribution from a newsstand. During the same period, Respondent collected revenues for advertising in the sum of approximately $800,000 from individuals, local enterprises , public utilities, and manufacturers. Approximately $85,000 was paid to Respondent by nonresident manufacturers, and of that amount approximately $45,000 was paid by manufacturers whose individual annual shipments in commerce exceeded $50,000. The sum of $1,863 was paid by local manufacturers . The sum of $895 was paid by Pennsylvania Greyhound Company, Indiana Motor Truck Company, and New York Central Rail- road, each of whom is engaged in the interstate carriage of goods and passengers for hire. Approximately $8,000 was paid by Indiana-Michigan Electric Company, Central Indiana Gas Company , and Indiana Bell Telephone Company, each of which CHRONICLE PUBLISHING COMPANY, INC . 525 is a public utility collecting annual revenues in excess of $3,000,000. Revenues of Respondent from printed circulars, typesetting for job printers, political advertising, etc., amounted to approximately $6,500. During the year 1953, Respondent purchased newsprint, inks, and other material valued at $140,000, which were shipped to its plant in Marion, Indiana, from sources outside the State. It subscribed to the news services of Associated Press, International News Service, and United Press, which were transmitted over the wires of American Telephone & Telegraph Company. To Associated Press it paid approximately $13,000; to International News Service approximately $6,000; and to United Press approximately $4,000. From King Features, Wilkes-Barre, Pennsylvania, it pur- chased comic supplements valued at approximately $11,000. From other enter- prises outside the State of Indiana, including NEA, King Features, Register Tribune, Bell Syndicate, United Features, and McNaught Syndicate, it purchased news services valued at approximately $6,500. From its independently operated radio station (WMRI-FM) in 1953 the Respond- ent received additional revenues for advertising in the sum of approximately $25,000. For that operation it purchased records and transcriptions valued at $2,112 from sources outside the State of Indiana. Supervisors of Respondent involved herein include President Gardner Thomas, Vice-President and General Manager Edward W. Camp, Secretary-Treasurer Richard Lindsay, Composing Room Superintendent Paul G. Bell, and Night Foreman Harold Winchell. Both the superintendent and foreman were members of the Union. I find, therefore, that Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and that its operations are within the jurisdictional standards announced by the Board on July 15, 1954. II. THE LABOR ORGANIZATION INVOLVED Marion Typographical Union No. 286 is a local union affiliated with International Typographical Union, AFL, and is a labor organization within the meaning of Section 2 (5) of the Act. It is not in compliance with Section 9 (f), (g), and (h) of the Act, but admits to membership printers employed in the composing room of Respondent, including linotype operators, machinists, ludlow operators, and com- positors. Respondent has for many years voluntarily recognized the Union as ex- clusive bargaining representative of its composing room employees. III. THE UNFAIR LABOR PRACTICES A. History of labor relations For many years prior to and including 1947, Respondent and the Union entered into written contracts approved by the International Typographical Union, AFL. All written contracts provided that printers employed in the composing room of Respondent, including foremen, must be members of the Union. The foreman in charge exercised authority to hire and fire employees, and in the event of discharge aggrieved parties had the privilege of successive appeals under union laws to the chapel, the local Union as a body, and the executive board of International Typo- graphical Union, AFL. Amendments to the Act in 1947 outlawed the closed shop, and thereafter Respondent and the Union continued a contractual relationship from year to year by verbal negotiations, but did not incorporate such agreements into a written contract. President Gardner Thomas credibly testified in substance that about September of each year since 1946 he received a letter from the Union requesting negotiation of a conract for the ensuing year. Each year Respondent reached an agreement with the Union on a wage scale and general working conditions, but never agreed on a written contract. Respondent agreed to continue the provisions of the last written contract (1947) insofar as the men were concerned, priorities, vacations, holidays, and general working conditions, because it was good policy to do so, but was under no obligation to do so, and could make changes at any time. Although not required to do so, Respondent continued to employ only union members in the composing room. In January 1953, Respondent held a meeting at the radio station with all printers of the composing room to discuss a profit-sharing plan, which had previously been accepted by other employees, but had been rejected by the Union. At that meeting Lynn E. Boyd (linotype operator) interposed objections to the plan, and expressed doubts as to whether it would be equitably administered by the Respondent. In reply to his questions, President Gardner Thomas asserted that "The Chronicle Publishing Company always does things on the up and up," or words to that effect. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lynn E. Boyd credibly testified that he said: "Now, these profits could be one thing and you could tell us something else, there is no way on earth for us to know what the profits are"; and thereupon Vice-President Camp accused him of questioning his integrity. Boyd quoted Camp as saying on that occasion . "If you think we are that kind of bastards , you oughtn't to work for us." At a negotiating meeting in January 1954 , the union scale committee insisted upon a cost-of-living increase in wages, which the Respondent resisted . President Gardner Thomas explained that in 1948 Respondent had voluntarily reduced working hours in the composing room from 40 to 37 1/2 hours a week, granted a wage increase of $2.50 per week, and thereupon adopted an escalator provision for the future under which the printers would receive automatic wage increases of $2 50 per week whenever the Bureau of Labor Statistics announced a rise of 5 points in the cost of living When Lynn E. Boyd, as a member of the union negotiating committee, expressed doubts concerning his statements , President Thomas abruptly closed the drawer of his desk, and said: "It's a good idea , I believe, for you not to stick your chin out," or words to that effect . No agreement was reached, and on the following day President Thomas told the chairman of the union scale committee ( Alfred G. Brett), that he intended to charge Lynn E. Boyd with insubordination . Boyd was at that time president of Marion Typographical Union No. 286 , and on March 7, 1954, was reelected to that office for an additional term of 6 months. As president of the Union, he appointed the scale committee , and was himself a member of the com- mittee ex officio. On or about March 1, 1954 , Lynn E. Boyd, as president of the Union, initiated a proposal to withdraw from Respondent the use of a union label as a masthead in the editorial columns of its newspapers . The proposal was based upon a refusal of Respondent to recognize jurisdiction of the Union over teletype operators, and because it was employing women in that capacity, who were not members of the Union. International Representative John Pilch concurred in the proposal, and attempted to persuade the local Pressmen's Union to do likewise . On March 3, 1954, President Gardner Thomas approached Boyd at work in the composing room and said: "I understand that you are attempting to withdraw the label," or words to that effect. Boyd admitted the accusation, and President Thomas retorted : "Well, that's the kind of game you are playing," and left the composing room . The union label was withdrawn on March 18 , 1954, by Chapel Chairman Paul G. Prail upon in- structions from the union president ( Boyd). On Monday, March 8, 1954, Lynn E. Boyd, as president of the Union, caused to be posted on the bulletin board in the composing room a letter dated February 22, 1954, from C E. Pauley & Co ., Inc (contract printers ) of Indianapolis, Indiana, to Harold Winchell as secretary of the Union , which reads, as follows: As secretary of Marion Union, No. 286 you will be more familiar with the membership than any one else in your community , and therefore , would be in position to contact the person in whom we are interested. We wish to get in touch with one or more linotype operators who might wish to make a change and join the force of a printing plant in Indianapolis where employment is steady, wages and working conditions are the best , and sur- roundings are most pleasant. This plant needs operators and now is an excellent time to get in with one of the large book publishing plants of the country. We are contract printers for the State of Indiana , Purdue University, and also handle an extensive line of work for Indiana University and many publications for private concerns. The diversified character of our work insures a steady flow through the plant and minimizes any chance of lay-offs. Just a brief outline of the plant and what we have to offer- Fourteen linotype machines operating 16 hours daily-5 days-40 hour week. The scale here is $102 .60 days and $107 .60 nights, but to competent opera- tors we are paying $109 .00 days and $ 114.00 nights. We have paid holidays, two weeks paid vacation and paid hospital insurance. If you know of any one in your jurisdiction interested in making a change, we would appreciate it if you would pass this letter along. Or, if you would not care to contact any one personally , would you send us the name and address so we could make the contact direct? A self-addressed envelope is enclosed. The writer can be contacted Monday through Friday at the office , (Market 5312) from 7 : 00 a. m. to 4:00 p. m., and at any other time at home (IRvington 6402). CHRONICLE PUBLISHING COMPANY, INC. 527 B. Discharge of Lynn E. Boyd The Respondent has traditionally permitted employees at their own expense and at a definite time on both its day and night shifts in the composing room to partake of refreshments without a formal cessation of operations . Smoking is permitted at all times and there is no restriction on employees going to the water fountain and restroom , so long as such privileges are not abused by unreasonable neglect of their work . In accordance with the traditional custom at approximately 7 o'clock on the night of March 8, 1954, Everett McClelland (junior apprentice ) procured and distributed refreshments to employees of the composing room at their places of work. Each employee ordered and paid for the type of refreshments desired without restriction . Lynn E. Boyd ordered and received a paper carton of ice cream, which was delivered to him at linotype machine #5 , where he was at work. Shortly after 7 o'clock that night Edward W. Camp, vice president and general manager of Respondent , entered the composing room by the front door , walked to the rear and told Foreman Harold Winchell to meet him in the main office up- stairs, and then went into the adjoining mail room to make a routine inspection for fire hazards. Winchell immediately went outside to wait for Camp . According to Camp's own testimony , he saw Lynn E. Boyd sitting at his linotype machine with the cup of ice cream in his hand , and gave him a dirty look in passing Upon return from the mail room , Camp approached Boyd, who was then standing up at his machine #5 with the cup of ice cream in hand talking to an adjacent linotype oper- ator (Moore ). Camp said to Boyd. "Are you working here?" Boyd said: "Yes, I like to work here." Camp said- "Well, get down and get to work then. " There- upon, Boyd sat down at his linotype machine , and Camp stood there watching him. Boyd then turned around and said "You get away from here , I can't work with you looking over my shoulder ." Camp continued : "I don't think you want to work here. Why don't you get out? You don't act like you like it here. I noticed that there are a couple of situations up there posted on your bulletin board, so if you don't like the work here , you won't be without a job very long." Boyd inquired: "Are you firing me9" and stood up and said "I know why you're firing me, it's for my union activities." Camp became incensed at this accusation , got madder and madder, and loudly said "if you say that again to me, I'll knock you on your ass; get out, get out" ; and may have also said. "you are just leading these men into a bunch of trouble." Boyd said : "Give me a little time to get my coat or jacket"; and proceeded to the locker room, followed by Camp. At the locker room, Boyd said to Camp. "If you were ten years younger, I'd knock your block off," or words to that effect . Then Camp left the composing room, and went to his office upstairs accompanied by Night Foreman Harold Winchell and Superintendent Paul G. Bell. The testimony of Lynn E. Boyd was not substantially different or in conflict with that of Vice-President Camp. In addition , Boyd credibly testified that when he mentioned the fact that other employees were also eating ice cream , Camp said: "I don't care what any other man does , you're the guy I'm after, you are the trouble maker here"; i and that Camp called him a "son-of-a-bitch" several times. Boyd denied saying to Camp . "If you were ten years younger, I 'd knock your block off," but admitted that he said . "Ed, if you were ten years younger, I'd give you an invita- tion." 2 Boyd credibly testified further that Foreman Harold Winchell returned to the composing room a few minutes after his discharge, and requested him to leave the building quickly, because Camp was calling the police . On that occasion, Winchell said: "I had nothing to do with this , Slim, I don't understand it, but you better go to avoid trouble ." On the next day Boyd called Superintendent Paul G. Bell by telephone and requested a written explanation of his discharge With minor variations , additions, and omissions other employees at work in the composing room testified substantially the same as to what occurred at the time Boyd was discharged John H. Fleenor, printer , credibly testified that Camp talked loudly and that Boyd never raised his voice He heard Boyd say: "I don't want to leave here , I like it here, when I don't I'll leave " He heard Camp say. "You say that again and I'll knock you on the floor"; Camp was swearing , and repeated several times : "Get out of here, God damn it, get out of here , God damn it " He also heard Camp say- "I don't care what the others have , you are the one we're after. You are just leading these men into a bunch of trouble " I Camp denied mviking such it statement and testified that Boyd was not a troublemaker 9 At the hearing, the Tnal Examiner observed that Lynn Boyd '( 39 years old) was greatly superior in physical stature and stiength to Edward W Camp ( 62 yeais old) 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raymond Miller, printer, credibly testified that he did not hear Boyd say anything, but heard Camp in a loud voice tell Boyd to "Get out." Charles B. Fields, linotype operator, credibly testified that Camp approached Boyd and questioned him about having ice cream; that Boyd sat down at his machine with Camp standing behind him; that Boyd asked Camp to move because he could not work with him looking over his shoulder; that Camp referred to a letter posted on the bulletin board and suggested that Boyd was not happy in his work there and could go to Indianapolis; that Camp said Boyd was nothing but a troublemaker and accused him of loafing in the restroom; that Camp swore frequently in a loud voice and threatened to knock Boyd down when he asserted that the trouble stemmed from negotiations upstairs; that when Boyd protested that others were also having refresh- ments, Camp said: "Well, I don't care what the rest of the men are doing, I'm after you"; that when Boyd went to the locker room, Camp said: "If you say that again, I'll knock you down"; that Boyd said: "If you were ten years younger I might take you up on that"; that Camp swore frequently, calling Boyd a "s. o. b." and telling him to "get the Hell out" several times; and that Boyd did not raise his voice. Everett McClelland, apprentice, credibly testified that he distributed refreshments to the men in the presence of Vice-President Camp and Boyd was one of the last served; that Camp approached Boyd (while preparing to eat his ice cream) and said: "What are you going to do with that?" and Boyd replied: "I'm going to eat it"; that Camp pointed to linotype machine #5, and said: "Well, there's your machine there. Well, you are nothing but a God damn troublemaker. You don't do any work around here. You are just leading these men into a bunch of trouble"; and that Camp told Boyd to "get out, and don't come back." Richard A. Miller, markup man, credibly testified that he overheard a part of the conversation between Vice-President Camp and Lynn E. Boyd, he could not hear any- thing that was said by Boyd, but observed that Camp was very angry and was using profanity. He heard Camp say: "Get out, get out." Donald Porter, employee, credibly testified that he witnessed a part of the conver- sation between Vice-President Camp and Lynn E. Boyd. First he heard Camp say: 11 * . . you're a damn troublemaker, get out." Next he heard Camp say: "You say that again and I'll knock you down." About that time Foreman Winchell came into the composing room and Camp said to him: "If you don't like it, you can get out too." 3 C. Events after the discharge Immediately following the discharge of Lynn E. Boyd, Vice-President Camp held a conference with Night Foreman Winchell and Superintendent Paul G. Bell in the course of which Winchell returned briefly to the composing room and requested Boyd to leave in order to avoid further trouble. Boyd said: "I was waiting for you to say so," and departed; and on the following day requested Superintendent Bell by tele- phone to furnish a written explanation of the discharge. Vice-President Camp ex- plained to Bell and Winchell that Boyd had been discharged for abusing the refresh- ment hour, but they contended that according to contract only the foreman in charge had authority to discharge members of the Union and that the Union would not recognize Boyd's discharge unless Night Foreman Winchell signed and delivered a letter of explanation. On March 9, 1954, Vice-President Camp presented such a letter stating that Boyd was "discharged for neglect of duty at this and other times " Winchell revised the letter to read "neglect of duty at this specified time " Thereupon, Respondent sent to Lynn Boyd by registered mail a letter dated March 9, 1954, signed by Harold Winchell, night foreman, as follows: Mr. Bell has informed me that you desire in writing reasons for your discharge as of Monday, March 8. The reason for your discharge was neglect of duty at this specified time. Harold Winchell testified as a witness for the Respondent. When asked whether Lynn E. Boyd neglected his duty on the night of March 8, 1954, Winchell said- "He was neglecting his duty according to Mr. Camp"; that he accepted Mr Camp's word for it, and didn't have the least idea what the reason was for discharging Boyd other than what Mr. Camp told him. Winchell said that he was standing outside the com- posing room, and did not fully realize what was going on; that he heard both men talking loudly, and observed that Mr. Camp was very angry. He heard Boyd say something about knocking Camp down, if he was a few years younger. Then Camp came out and said- "Come on, lets go upstairs"; that Superintendent Paul G. Bell was entering the building and went with them. Foreman Winchell testified that Lynn E. Boyd had been employed by Respondent for approximately 7 years, and since 3 The latter statement was denied by Camp. CHRONICLE PUBLISHING COMPANY, INC. 529 October 1953 had worked under his supervision on the night shift in the composing room; that Boyd was the best and most efficient linotype operator at the plant, could get a job done faster than any of the others, and that his work was very good. On occasion he had seen Boyd loaf on the job, but had never reprimanded him or dis- cussed his efficiency with the Respondent. Superintendent Paul G. Bell testified that Lynn E. Boyd had worked under his supervision and was a very competent operator, that he is what would be considered a fast operator and his work was very good; and that Respondent had never made any complaint about his work. Without avail the Union endeavored to persuade Respondent to reinstate Lynn E. Boyd. At a negotiating meeting on March 26, 1954, International Representative John Pilch requested that Boyd's discharge be considered under the grievance pro- cedures provided by union laws. Vice-President Camp was present and made the statement: "We have no contract with this local union, and, therefore, there is no procedure to follow." President Gardner Thomas disclaimed any prior knowledge- that Vice-President Camp was going to discharge Boyd, but made it clear that Re- spondent would support the action taken. In his testimony at the hearing, President Thomas admitted that in a telephone conversation with Lynn E. Boyd on or about April 5, 1954, he told Boyd "that this should teach him a lesson; questioning my integrity out at the radio station back there in February or the latter part of January was enough and I should have fired him then, and I believe I should have." Thomas further testified, however, that in this conversation he did not in any way say or indi- cate that Boyd's discharge was in any way connected with the questioning of his integrity. Concluding Findings The record in this case does not sustain the contention of Respondent that Lynn E. Boyd was discharged for abusing traditional refreshment privileges or neglecting his work. The record likewise fails to show that Respondent was motivated by antiunion animus or a desire to discourage membership in the Union. For many years the Re- spondent has voluntarily recognized and bargained with the Union as exclusive bar- gaining representative of its employees in the composing room, despite the fact that the Union has failed to comply with Section 9 (f), (g), and (h) of the Act and has never been certified by the Board as such bargaining representative. It is clear from all the evidence that Lynn E. Boyd became personally obnoxious to the Respondent in January 1953 when he opposed a profit-sharing plan and ex- pressed doubts that such a plan would be equitably administered by the Respondent. Both President Thomas and Vice-President Camp expressed disapproval of his con- duct at that time. At a negotiating meeting in January 1954, President Thomas again expressed resentment towards Boyd for questioning his veracity and good faith; and thereafter threatened to discipline him for insubordination. The mounting resent- ment of Respondent was accelerated when on or about March 1, 1954, Lynn E. Boyd, as president of the Union, promoted a movement to withdraw use of the allied union label as a masthead in its newspapers, and on March 8, 1954, posted the letter of a competitor on the union bulletin board soliciting employees of Respondent for em- ployment at Indianapolis, Indiana. From a preponderance of the evidence and the entire record in the case, I am constrained to find that the foregoing conduct of Lynn E. Boyd constituted protected concerted activities with other employees for the pur- pose of collective bargaining, or other mutual aid or protection, within the meaning of Section 7 of the Act.4 Respondent does not now contend that Boyd was discharged for insubordination. On the occasion of his discharge, Vice-President Camp in the heat of anger accused Lynn E. Boyd of leading his fellow employees "into a bunch of trouble," and invited him to accept employment with C. E. Pauley & Co., Inc., whose letter was posted on the bulletin board. I am, therefore, constrained to find that Vice-President Camp was motivated by his resentment against Boyd because of his concerted activities. Thereafter, President Gardner Thomas ratified the action taken by Vice-President Camp by denying reinstatement or further consideration. I find, therefore, that Respondent discriminated in regard to the tenure of employment of Lynn E. Boyd because he engaged in concerted activities with other employees for the purpose of collective bargaining, or other mutual aid or protection, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. In the absence of substantial evidence that the discharge was in- tended or had the effect of encouraging or discouraging membership in a labor organi- zation, I find no violation of Section 8 (a) (3) of the Act, and shall limit the finding 4 Atlantic Toaornq Company, et at, 75 NLRB 1169 ; The Bettcher Manufacturing Co , et at, 76 NLRB 526 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a violation of Section 8 (a) (1) of the Act; but, in any event, the remedy will be the same. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent 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. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices by ,discriminatorily discharging Lynn E. Boyd (employee) because he engaged in con- certed activities for the purpose of collective bargaining, or other mutual aid or pro- tection, thereby interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that on or about March 8, 1954, Respondent discriminatorily dis- charged and refused to reinstate Lynn E. Boyd (employee), because he engaged in protected concerted activities with other employees for the purpose of collective bar- gaining, or other mutual aid or protection, it will be recommended that Respondent offer to said employee immediate and full reinstatement in his former or substantially equivalent position,5 without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him by the payment to him of a sum of money equal to that which he would normally have earned since the date of his discharge on March 8, 1954, to the date when a proper offer of reinstatement is made by the Respondent, less his net earn- ings 6 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will be further recommended that Respondent make available to the Board and its agents, upon request, all payroll and other records necessary to compute the back pay herein awarded. 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. Respondent, Chronicle Publishing Company, Inc., is engaged in commerce with- in the meaning of Section 2 (6) and (7) of the Act. 2. Marion Typographical Union No. 286, affiliated with International Typographi- cal Union, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent. 3. By discriminatorily discharging Lynn E. Boyd (employee) because he engaged in concerted activities with other employees for the purpose of collective bargaining, or other mutual aid or protection, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent, Chronicle Publishing Company, Inc., engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] s Sec The Chase National Bank of the City of New YorL, San Juan, Puerto Rico , Branch, 65 NLRB 827 6 See Crossett Luinbei Company, 8 NLRB 440, 497-8. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees: WE WILL NOT discharge or refuse to reinstate any of our employees because they engage in or have engaged in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. AMERICAN STEEL FOUNDRIES 531 WE WILL NOT in any other manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining 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 authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Lynn E. Boyd immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed; and make him whole for any loss of pay suffered as a result of the discrimination against him. CHRONICLE PUBLISHING COMPANY, INC., Employer. Dated ---------------- By---------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. American Steel Foundries, Cast Armor Division and Interna- tional Guards Union of America, Independent. Case No. 13- CA-167. April 29,1955 DECISION AND ORDER On June 29, 1954, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings and conclusions of the Trial Examiner, only insofar as they are consistent with this Decision and Order.' We do not agree with the conclusion of the Trial Examiner that the Respondent had not engaged in a refusal to bargain in violation of i In adopting the Trial Examiner's findings as to jurisdiction , Chairman Farmer and Members Peterson and Rodgers rely only on that portion of his findings that pertain to the Respondent's multistate operations , and on the data with respect to the Respondent's multistate operations as contained in a stipulation of the parties dated September 1, 1954. Member Murdock disagrees with the rejection of the Trial Examiner 's reliance on national defense as the ground for assertion of jurisdiction , which is the ground he would use In Member 'Murdock's opinion, the reliance by his colleagues on the ground that this Gov- ernment-owned 'moth-balled" plant, which is being maintained by the Respondent in a standby condition , is to be considered an integral part of the Respondent 's own multistate steel manufacturing operations, appears to be a doubtful extension of the concept of what may be regarded as an integral part of a multistate enterprise. 112 NLRB No 66. 369028-56-vol 112-35