Herald Publishing Co. of Bellflower

4 HERALD PUBLISHING COMPANY OF BELLFLOWER 71 Herald Publishing Company of Bellflower and American News- paper Guild, CIO. Case No. 21-CA-2044. September 16,1955- DECISION AND ORDER On March 29, 1955, Trial Examiner Herman Marx 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions.' 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 Intermedi- ate- Report, the Respondent's exceptions and brief, and the entire record in the case, and adopts the Trial Examiner's findings, conclu- sions, and recommendations as modified below. For the reasons indicated in the Intermediate Report, 2 we agree with the Trial Examiner that the Respondent's operations affect inter- state commerce and that the Board has jurisdiction in the statutory sense in this proceeding. The Trial Examiner was of the further opin- ion, which we share, that the Respondent's operations fall within the Board's current plan for the assertion of jurisdiction over newspaper enterprises because the Respondent's gross'value of its newspaper busi- ness amounted to at least $500,000 per annum and the Respondent sub- scribed to an interstate news service and advertised nationally sold automobiles, including Ford, Chevrolet, Studebaker, and Packard cars.' Moreover, we rely on the additional fact that the Respondent advertised many other products which, because they are commonly 'known to be nationally sold products, we officially notice to be nation- ally sold products. Among these are household appliances, electric shavers, canned vegetable and meat products, watches, and women's wear, marketed by such well-known manufacturers as Radio Corpo- ration of America, Bendix, General Electric, Sunbeam, Ronson, Schick, Westinghouse, Elgin, Chrysler, Libby, Gerber, and Playtex. In view of the foregoing, we find that the Board has jurisdiction and 1 The Respondent filed no specific exceptions to the Trial Examiner's findings that the Respondent unlawfully discharged Raymond J. Ross and granted a wage increase to em- ployees to deter union organization , as more fully set forth in the Intermediate Report. Apart from the reasons therefor indicated in the Intermediate Report, which we regard as adequate, we adopt the Trial Examiner 's findings , conclusions , and recommendations as to Ross' discharge and the wage increase in view of the absence of exceptions thereto. 2 The Trial Examiner correctly reported that the Respondent' s annual gross income from the publication of its newspaper exceeds $500,000, but that the evidence did not disclose the extent of the excess We find, as stated in the Respondent's brief, that its gross rev- enue for 1954 amounted to $1,714,377 68. 3 The Daily Press, inc., 110 NLRB 573. 114 NLRB No. 23. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Herald Publish- ing Company of Bellflower, Compton, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in American Newspaper Guild, CIO, or in any other labor organization, by discriminating in any manner in regard to the hire or tenure of employment or any term or con- dition of employment of any of its employees. (b) Engaging or attempting to engage in surveillance of any meet- ing of American Newspaper Guild, CIO, or any other labor organiza- tion, which the Respondent believes or has reason to believe will be at- tended by,any person in its employ; interrogating any employees con- cerning their membership in, or activities on behalf of, American Newspaper Guild, CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation, of Section 8 (a) (1) of the Act; stating to employees that it will discharge any employee because of his affiliation with, or activities on behalf of, American Newspaper Guild, CIO, or any other labor organization, or that any employee has been discharged because of such affiliation or activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to join or assist Ameri- can Newspaper Guild, CIO, to bargain collectively through represent- atives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities, except to the ex- tent that such right may be affected by an agreement requiring mem- bership 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, which the Board finds will effectuate the policies of the Act : (a), Offer to Sol London, Doris Farley, Raymond J. Ross, and Gloria Hickey immediate and full reinstatement to their respective former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and make each of the said employees whole in the manner set forth in section V of the Inter- mediate Report, entitled "The Remedy..', HERALD PUBLISHING COMPANY OF BELLFLOWER - 73 (b) Post at its principal place of business in Compton, California, and at each of its other places of business in Los Angeles County, California, copies of the notice attached to the Intermediate Report and marked "Appendix A."' Copies of such notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's representative, be posted by the Re- spondent, immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 This notice is hereby amended by substituting the words "A Decision and Order" for the words "The Recommendations of a Trial Examiner." In the event that this Order is enforced by a decree 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 Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On July 21, 1954, American Newspaper Guild, CIO (also described herein as the Guild), filed a charge with the National Labor Relations Board (also referred to below as the Board) against the Respondent, Herald Publishing Company of Bell- flower.' The Guild filed an amendment to the charge on August 19, 1954. Based upon the charge, as amended, the General Counsel of the Board issued a complaint on October 14, 1954, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended (61 Stat. 136-163), also referred to herein as the Act. Copies of the charge, the amendment thereof, and the complaint have been duly served upon the Respondent. With respect to the claimed unfair labor practices, the complaint, as amended at the hearing in this proceeding, alleges in substance that on various occasions during a period beginning on or about July 1, 1954, the Respondent, in violation of Section 8 (a) (1) of the Act, engaged in conduct constituting interference with, restraint, and coercion of its employees in the exercise of rights guaranteed to them by Section 7 of the Act; and that the Respondent, in violation of Section 8 (a) (1) and (3) of the Act, discriminatorily discharged four employees, Sol London (on July 17, 1954), Raymond J. Ross (on August 17, 1954), and Gloria Hickey and Doris Farley (both on August 18, 1954), because the said employees had exercised rights guaranteed them by the Act. i The name of the Respondent is stated in the charge and in the complaint, as originally issued, as Herald Publishing Company. The Respondent's correct name is Herald Publish- ing Company of Bellflower. Upon the General Counsel's motion at the bearing in this proceeding, the complaint was amended to reflect the Respondent's correct name. Point- ing to Section 102.12 of the Board's Rules and Regulations, which requires that a charge set forth the "full name" of the party charged, the Respondent took the position at the hearing, in effect, that the misnomer is a bar to this proceeding. The view misconceives the function-of a charge.' It is not a pleading, and "simply sets in motion the investiga- tive machinery of the Board " N. L. R B. v. Waterfront Employers of Washington, et at., 211 F.'2d 946 (C A. 9). For that purpose, precision in the charge is not essential N. L. R B. v. Kingston Cake Co., 191 F. 2d 563, 567 (C. A. 3). Moreover, the Respondent filed an answer addressed to the merits of the complaint, and it is thus evident that it has been in no way prejudiced or, misled by the misnomer The Respondent's position lacks merit See De Luxe Motor Stages, 93 NLRB 1425, enfd. 196 F. 2d 499 (C A. 6). 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent filed an answer which, as amended at the hearing, in effect denies the commission of the alleged unfair labor practices attributed to it, and asserts in substance that London "was discharged for unsatisfactory services," and that Ross, Hickey, and Farley were terminated "solely for economy reasons." Pursuant to notice duly served upon all parties, a hearing was held before me, as duly designated Trial Examiner, at Los Angeles, California, on December 6, 7, 8, 9, and 10, 1954. All parties were represented by counsel, participated in the hearing, and were given a full opportunity to be heard, to examine, and cross-examine wit- nesses, to adduce evidence, to submit oral argument, and to file briefs and proposed findings of fact and conclusions of law. Of the various motions made at the hearing, reference need be made here only to one, as the record adequately reflects the dis- position of the others. Decision was reserved on a motion by the Respondent, after the close of the evidence, to dismiss the complbint on the ground that the Board has no jurisdiction over this proceeding, and that it would not effectuate the policies of the Act to assert such jurisdiction. The motion is hereby denied for reasons set out below. The General Counsel and the Respondent submitted oral argument after the close of the evidence. No briefs have been filed. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. NATURE OF THE RESPONDENT' S BUSINESS ; JURISDICTION The Respondent is a California corporation; maintains its principal place of busi- ness in Compton, Los Angeles County, California; and is engaged in the business of printing, publishing, distributing, and selling a newspaper known as the Herald American. The newspaper, a semiweekly publication, is published each,Thursday and Sunday. A weekly supplement to the paper, known as "Garden and Home Magazine," is also published each Sunday. The Thursday issue appears in nine editions. Seven editions are issued on Sunday. Each edition is associated or identified with one or more communities in Los Angeles County. For example, there are separate editions for the communities of North Long Beach, Compton, and Bellflower, among others. The newspaper is printed in Compton where the Re- spondent' operates two printing establishments for that purpose, but it also maintains separate offices in various of the other communities where it stations such personnel as advertising and editorial employees. The combined circulation of the Thursday editions is approximately 142,000; the circulation of the Sunday issue is slightly smaller. The Respondent sends no copies of its newspaper to any points outside the State of California. Circulation of the paper is apparently confined to the Los Angeles County communities for which the respective editions are named. The record is lacking in specificity concerning the amount of the Respondent's annual gross income, and what portions of the revenue are derived from advertising and circulation, respectively. One may, however, spell out enough from the evidence to determine whether the Board has jurisdiction and whether its assertion will ef- fectuate the policies of the Act. The Respondent's annual gross income from the publication of the newspaper exceeds $500,000 (how much in excess does not appear). Although the record contains no figures for the amount of revenue derived from advertising, it is fairly inferable from the evidence as a whole that the volume of advertising is considerable, and that the newspaper's revenue from advertisements accounts for a substantial portion of its gross income.2 The newspaper advertises a variety of products, including what one witness termed "practically every make of popular cars." Automobile advertisements appear in the Herald American every week, but the heaviest concentration of such advertising occurs each year when the automobile manufacturers bring out their new models. Some of the advertisements are placed by advertising agencies, and others by local automobile dealers. The offices of the agencies which place the automobile adver- The record reflects only two sources of income, advertising and circulation. Circula- tion revenue may be roughly approximated. The newspaper sells for 10 cents a copy. About 30 to 40 percent of the copies distributed are paid for. Payment at 10 cents per copy for 30 percent of 142,000 copies issued 104 times in a year would yield annual gross receipts of $443,040 for the given year. As the evidence does not establish by how much the annual gross income exceeds $500,000, it is impossible to determine from the record what proportion of the revenue is derived from advertising. One may safely conclude, however, from the figures given that the advertising income is substantial . Other features of the record which support that conclusion will appear later. HERALD PUBLISHING COMPANY OF BELLFLOWER 75 tisements are all located in California.3 Copy for automobile advertising, such as mats used to reproduce pictures of automobiles, is supplied to the newspaper by dealers and advertising agencies, as the case may be. The record does not establish whether any of the copy originates outside the State of California. When an agency places the advertisement, the newspaper usually secures approval of the copy from a local dealer because the latter pays for the advertisement (and, perhaps, although the record is not clear on the point, because the dealer's name appears in the ad- vertising). The evidence, however, does not establish that the dealers are actually the agencies' principals, nor can it be determined in the state of the record whether the authority for the agencies' activities comes either from automobile manufacturers or distributors? The Herald American is not a member of any interstate news agency, but it subscribes to, and receives in the mail each week, a newsletter issued by the United Press which, it is common knowledge, is engaged in the distribution of news to newspapers throughout the United States. The weekly letters contain "news from various parts of the country." C. S. Smith, president of the Respondent and publisher of the-Herald American, denied that the newspaper has actually used the newsletters, and he explained the subscription with testimony that the paper had at one time used the wire service of the news agency; that the service was discontinued in or about 1946; and that the Respondent subscribes to the newsletters in order to retain some right (not otherwise elaborated in the record) to resume the wire service. Smith also asserted that the newspaper does not publish "anything but local news." However, the "Garden and Home Magazine" supplement to the issue of September 12, 1954, contains a substantial number of items dealing with events that occurred, or places that are located, outside the State of California. The initials U. P. are appended to the bottom of a substantial number of such items on pages 15 and 19 of the supplement (General Counsel's Exhibit No. 3). The issue for October 21, 1954, contains an article entitled "College Coeds Discuss Campus Fashion." The item is datelined Berkeley, California, and Austin, Texas, with the legend at the bottom: "Written for U. P. by Joyce Williams, University of California, and Patricia Strum, University of Texas." Smith was interrogated about the source of some of the articles in question, and notwithstanding his prior assertion that the paper publishes only "local news," he speculated that one article dealing with tourist information, attributed to U. P., and datelined Ottawa "could be out of canned information which is sent to us by some travel bureau." He endeavored to account for the initials with the statement that "that [the item and the initials] could be out of any daily newspaper." With respect to another item attributed to U. P., and captioned "Make Low Bid Pocket Papers on Ohio Town," he testified that the source of the story would be a "rank guess" on his part. When asked whether it would be "consistent" for a newspaper to credit "something to U. P. if it comes from another source," Smith gave the somewhat unresponsive reply: "This is a magazine [the supplement] which is headed by a girl who has practically carte blanche on it. She doesn't have service [sic] to these various [news] letters and wherever she picks the stuff, we have let her go on it because she gets it locally or everything is sent to her by some local agent. There is no policy on it except interesting reading." Smith's testimony as to where the U. P. stories "could" have originated is obviously speculative, and I am unable to accord any probative weight either to such speculation or the assertion that an employee with "carte blanche" authority secured the stories "locally" or from "some local agent" (not otherwise identified). Similarly, I am unable to give any operative weight to his claim in effect that the "girl who has practically carte blanche" in the preparation of the magazine has not used the United Press newsletters. Sol London, one of the dischargees involved in this proceeding, testified that he was stationed at the newspaper's Compton head- quarters prior to July 1953; that while employed there he used to open the mail; that "material from United Press" came to his desk in the mail; that he asked either Jack Cleland, city editor, or W. W. Butler, managing editor, what disposition should be made of the material, and was instructed by one or the other to turn it over to 8It is not unlikely, and the record suggests, that at least one or more of the agencies have offices in other States, but the evidence on the subject has insufficient substance to warrant a finding in the premises. ' There is testimony in the record that advertisements placed by the dealers are financed from funds "allotted" to them. The sources of the allotments, whether from manufac- turers or distributors, are not identified in the record. The testimony in question is lack- ing in specificity and concrete detail, and may be of hearsay origin. I base no finding on it. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Home and Garden." 5 While London stated that he could not recall whether it was Cleland or Butler who gave him that instruction, it may be noted that the record contains no denial by either Cleland (who did not testify) or Butler (who did) that the instruction described by London was given to him. Moreover, various facets of Smith's testimony substantially detract from the force of his claim that the person in charge of "Home and Garden Magazine" has not used the newsletters. In the first place, as already noted, Smith was unable to give the actual source of any of the stories credited to U. P. Second, he operates other enterprises, and he testi- fied at more than one point that prior to September 1, 1954, his participation in the active management of the newspaper was "on a very small part-time basis." According to his testimony, he is now active as general manager, but he has no "regular office" at the headquarters of the newspaper in Compton and transacts most of his business at his home. Thus, it may be asked, how may one conclude from Smith's testimony that the person in charge of the magazine had no access to the newsletters and did not use them? A negative answer is required not only by the features of his evidence pointed out above but by other aspects of his testimony. When questioned about recent news stories (appearing- after he assumed the title of general manager) pertaining to new automobile models, he replied that he did not have "the slightest idea" as to the source of the articles or as to the identity of the individual in his organization who "would know where these news items come from." He explained his lack of personal knowledge with the statement, "I have one hundred and eighty people in the organization." In sum, it seems to me that this explanation by Smith applies with equal force to his claim that the individual in charge of the "Home and Garden" supplement has not used the United Press newsletters in preparing the news items attributed to U. P., initials which obviously are abbreviations for United Press. The fact that the newsletters are not in evidence does not preclude an inference that the U. P. stories came from the newsletters. The basic facts are that the Re- spondent subscribes to United Press weekly newsletters which contain "news from various parts of the country"; publishes news stories concerning events occurring, and places located, outside California; and attributes items of that nature to U. P. or, in other words, to United Press, as the source. Moreover, London's testimony described above is uncontroverted and contributes weight to the conclusion that the newsletters have been used as the source of stories in the supplement. In short, there is evidence which reasonably warrants an inference that the stories credited to United Press came from the newsletters. To escape such an inference, it seems to me that some duty devolved upon the Respondent to go forward with probative evidence negating it, particularly as information shedding light on the matter is within its special knowledge. The Respondent produced no such evidence, nor has it explained its failure to do so. Certainly, Smith's speculations as to the possible sources of the U. P. stories, his inaccurate assertion that the Herald American prints only "local news," and his generalization that the person in charge of the supplement "doesn't have service to these letters," do not probatively negate the inference. The weight of the evidence supporting the inference is enhanced by the failure of the Respondent to present any probative evidence, peculiarly within its knowledge, as to the source of the U. P. items. See N. L. R. B. v. Ohio Calcium Co., 133 F. 2d 721 (C. A. 6). Accordingly, I find that such news items were fur- nished to the Respondent by United Press and were based upon, or taken from, one or another of that organization's weekly newsletters .6 In August 1954 the Respondent purchased publication rights to three cartoon fea- tures, each of which is issued by a different syndicate. Two of the syndicates are located in New York and the third in Chicago. The publication rights were pur- chased from "a Glendale, California broker," who in turn ordered the features for the Herald American from the syndicates. Publication of cartoons received from one or the other of the syndicates was begun by the Respondent on August 25, 1954, and discontinued on December 8, 1954, while the hearing in this proceeding was s Unlike Butler Cleland, as will appear, is not a supervisor within the meaning of the Act. However, when London was hired, Butler told him that he "would be working under" Cleland, and, while London was stationed in Compton, Cleland exercised some authority over him from time to time At the least. Cleland was vested with apparent authority over London in the Compton office. Therefore, London's description of an instruction from Cleland regarding the disposition of the United Press material is competent evidence. G The Respondent also subscribes to and receives from United Press another weekly newsletter which deals with events in Sacramento California's State capital Smith de- nied that the newpsaper uses this letter, and there is no evidence to the contrary. Juris- dictional findings made below are not based on the Sacramento newsletters. HERALD PUBLISHING COMPANY OF BELLFLOWER 77 in progress . The Herald American customarily used one or another of the features as "filler" material in 1 or 2 of the community editions of each issue? The Respondent contends in effect that its operations do not affect interstate commerce, and that the Board is thus without jurisdiction over this proceeding. An alternative contention is that the assertion of jurisdiction, if the Board has it, would not effectuate the policies of the Act. The Board has recently adopted criteria (to be described later) by which it intends to be governed in its assertion of jurisdic- tion over newspapers. It may be noted' that the alleged unfair labor practices at- tributed to the Respondent antedated this expression of Board policy. For that reason, as well as the fact that the relevant criteria are of recent origin, I think it appropriate to refer not only to the applicable current policies but to some aspects of criteria in effect prior thereto. In 1950, in a series of decisions, the Board announced certain criteria by which it would be governed in its assertion of jurisdiction. The criteria, some but not all prescribing dollar volume standards, were respectively applicable to different situations or types of enterprises and need not be described in detail.8 It need only be noted that in one of the policy decisions the Board announced that it would con- tinue to take jurisdiction "over instrumentalities and channels of interstate . commerce" (WBSR, Inc., 91 NLRB 630, involving a radio station); and that shortly thereafter this standard was applied to a newspaper because of "its membership in interstate news services" (Press, Incorporated, 91 NLRB 1360). As evidenced by the Press decision, the assertion of jurisdiction over newspapers after the announce- ment of the 1950 policy standards (and, as will appear, prior to 1954) was based not upon standards particularly applicable to newspapers, as such, but upon find- ings that criteria announced in one or another of the 1950 decisions were applicable .9 The issues for October 14 and December 2, 1954, are typical of the use of the cartoons. On the first date, of the 9 editions, only the Downey-Riviera and Paramount-Hollydale editions contained cartoons, the latter publishing 2. The December 2 issue published two cartoons, both appearing only in the Norwalk community edition The fact that the car- toons were used as "filler" is immaterial. The point to bear in mind is that they were used frequently during the period of the subscription 9 For the criteria see* WBSR, Inc., 91 NLRB 630; W. C King d/b/a Local Transit Lines, 91 NLRB 623; The Boiden Company, Southern Division, 91 NLRB 628, Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618; Hollow Tree Lumber Com- pany, 91 NLRB 635; Federal Daii y Co, Inc, 91 NLRB 638; Dorn's House of Miracles, Inc. 91 NLRB 632; The Rutledge Paper Products, Inc., 91 NLRB 625; Westport Moving & Storage Co., 91 NLRB 902 9In the recent case of The Daily Press, Incorporated, 110 NLRB 573, the Board appears to hays assumed that in 1950 it adopted criteria specially applicable to newspapers, as such. That case, citing Press, Incorporated, supra, and apparently relying on it, con- tains the following statement • "Among the standards adopted in 1950 was the so-called 'newspaper' standard Pursuant to this standard, the Board asserted jurisdiction over all newspaper companies which bold membership in or subscribe to interstate news serv- ices , or publish nationally syndicated features, or advertise nationally sold prod- ucts .. [Emphasis supplied ] It may be respectfully pointed out the 1950 Press decision did not establish policy standards in quite those terms. Although the Board made commerce findings in the Press case based, in part, on the newspaper's advertising and its publication of syndicated features, a careful reading of the decision requires the conclusion that the governing factor for the assertion of jurisdiction was not a policy standard particularly applicable to newspapers, as such. For its basic holding in the Press case that the assertion of jurisdiction would effectuate the policies of the Act, the Board, citing and applying a case involving a radio station (WBSR, Inc., 91 NLRB 630), invoked its previously announced policy of taking jurisdiction over instrumentalities or channels of interstate commerce, pointing out that the newspaper involved was such an instrumentality or channel because of "its membership in interstate news services." More- over, that advertising of "nationally sold products" was not of itself a criterion (before 1954) for the assertion of jurisdiction is made manifest by Wave Publications, Inc., 106 NLRB 1064. There the Board declined to assert jurisdiction, although finding that the newspaper advertised "national products" and received "syndicated cartoons" from out- side the State. In taking that position, the Board pointed out in some detail that the newspaper met none of the dollar volume or other criteria announced in 1950, thus imply-' ing that at the time of the Wave decision there was no separate "'newspaper' standard' and that the assertion of jurisdiction over newspapers turned on whether they met any of the standards announced in the 1950 policy decisions. To the same general effect, see, also, Mutual Newspaper Publishing Company, et al., 107 NLRB 642, and J. Weiss Printers, 92 NLRB 993. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Wave Publications, Inc., 106 NLRB 1064, the Board had occasion to pass oni the applicability of the 1950 standards to a California newspaper of a type somewhat -similar to the Herald American. Like the latter, the publication in the Wave case had an annual gross income in excess of $500,000, much of it derived from ad- vertising revenue; held no membership in "any interstate wire service"; subscribed to "syndicated cartoons" which were sent to it from points outside California; and, among various types of advertising, carried advertisements of "national products" placed both by advertising agencies and "local merchants." Unlike the evidence in this proceeding, the record in the Wave case establishes concretely that advertise- ments of "national products" were placed by "national advertising agencies located, outside California"; and that "local merchants" who placed advertisements of "na- tional products" were "reimbursed, in part, for the expense involved in advertising the national product[s], by the national manufacturer." Also, unlike this proceed- ing, the record in the Wave case contained concrete evidence of the value of goods or services purchased by the employer outside California. The Board found that for a given annual period, the publication "purchased materials and supplies valued at $225,000, of which approximately 70 percent was shipped directly to the Com- pany from outside California"; and that "in addition, the Company paid out about $3,000 annually for syndicated cartoons, columns, and advertising mat services dis- tributed from outside California." The Board held that, although it has jurisdiction, it would not assert it because the facts did not establish "that the Company's oper- ations meet any of the announced requirements for the assertion of jurisdiction." lo, The Respondent relies upon the Wave decision for support of its position. Al- though the commerce facts relating to advertising and syndicated features afforded' a stranger basis for the assertion of jurisdiction in the Wave case than do comparable facts in this proceeding, it may be noted that the newspaper involved in the Wave decision, unlike the Herald American, did not subscribe to an interstate news service. In any' event, for reasons that will appear the Wave decision is not decisive of the jurisdictional issues presented here.1' In 1954, the Board, in a series of decisions, announced new criteria for the asser- tion of jurisdiction. In the main, these were revisions of the preexisting policies. With one exception, detailed reference need not be made to the new policy de- cisions,12 for only one of them is pertinent here. The case in question is The Daily Press, Incorporated, 110 NLRB 573. There the Board announced ". . . that in future cases the Board will assert jurisdiction over newspaper companies which hold membership in or subscribe to interstate news services, or publish nationally syndicated features, or advertise nationally sold products, if the gross value of the business of the particular enterprise involved amounts to $500,000 or more per annum." [Emphasis supplied.] Several features of the quoted language may be noted. First, apart from the monetary standard, the other criteria are stated in the disjunctive. Thus, for example, a newspaper with a gross annual income of at least $500,000, meets the standards if it advertises "nationally sold products" whether or not it also holds membership in or subscribes to interstate news services, or pub- lishes "nationally syndicate$ features." Second, the assertion of jurisdiction is not conditioned upon any dollar volume of advertising income or of payments for nationally syndicated features, nor upon the regularity or frequency with which such features are used. Third, the application of the advertising criterion does not hinge upon the location of the advertiser or the source of the advertising. In other words, the criterion is applicable irrespective of whether the advertiser is the producer of the "nationally sold products," an advertising agency, or a "local merchant," or whether the person or firm placing the advertisement is located in the same State as the newspaper. The advertising standard requires only that the commodities advertised be "nationally sold products." Finally, it is evident that although The Daily Press decision did not expressly overrule the Wave case, the policy announce- 10 The Board's holding in the Wave case should be distinguished from a prior decertifi- cation proceeding involving the same employer, reported at 90 NLRB 274. There the Board asserted jurisdiction , but in its second decision , the Board pointed out that its earlier decision antedated the adoption of the 1950 criteria. 11 For the same reasons, Mutual Newspaper Publishvng Company, et al., 107 NLRB 642, and J. Weiss Printers, 92 NLRB 993 , both cited by the Respondent , are not controlling. v For announcements of new criteria see : Breeding Transfer Company, 110 NLRB 493; The Greenwich Gas Company and Fuels, Incorporated, 110 NLRB 564; Hogue and Knott Supermarkets, 110 NLRB 543; McKinney Avenue Realty Company (City National Bank), 110 NLRB 547; The Daily Press, Incorporated, 110 NLRB 573; Maytag Aircraft Corp., 110 NLRB 594; Insulation Contractors of Southern California , Inc., et al, 110 NLRB 688; Wilson-Oldsmobile, 110 NLRB 534; Jonesboro Grain Drying Cooperative, 110 NLRB 481. HERALD PUBLISHING COMPANY OF BELLFLOWER 79 ment in the former supersedes the holding of the Wave decision and must be held, by implication, to overrule the holding relating to advertising of what the Board in the Wave case termed "national products" (a phrase which apparently means the same as the term "nationally sold products" used in The Daily Press decision). It seems clear that had the standards announced in The Daily Press case been in effect at the time of the Wave decision, the Board would have concluded in the latter case that the assertion of jurisdiction would effectuate the policies of the Act, if for no other reason than that the newspaper met the monetary and advertising criteria of The Daily Press case. Applying the criteria of The Daily Press case to the evidence in this proceeding, it may be noted initially that the Respondent's annual gross income meets the monetary standard. The only question is whether any one of the other criteria is met. On that score, the subscription to the United Press weekly newsletters "containing news from various parts of the country" is of itself a sufficient basis for the assertion of juris- diction.13 But that is not the only ground established by the evidence. The Herald American advertises many types of commodities, but, with one exception, it is un- necessary to consider which of these are "nationally sold products." 14 Whether any other types of products mentioned in the record qualify for the term, the controlling facts are that the advertisements include those of "practically every make of popular cars," and that such automobiles are, without a doubt, "nationally sold products." 15 As already noted, evidence that the advertising of such products comes from, or is financed by, sources without the State is not a precondition of the application of the standard. Thus the question of jurisdiction is unaffected by the fact that the auto- mobile advertisements are placed by local dealers or advertising agencies located within the State (although it may be noted that Ralph J. Brewer, formerly general manager and now vice president of the Respondent, testified that agencies "perhaps" act "for the manufacturer," and in other instances, "for the local dealers association"). The evidence does not establish the amount of income derived by the Respondent from automobile advertising, nor the volume of the advertisements, but the absence of such evidence does not affect the assertion of jurisdiction here, for the applicable criterion requires no such precision in proof. Brewer testified that the newspaper receives automobile advertising from one agency or another every week; that such advertising is heaviest each year at the time when the new automobile models are introduced; and that "we have been very heavy recently in that type of advertising." He also stated that new models were being introduced at the time of the hearing, and indicated that "a lot of money" was being spent for their advertisement. From such testimony, the conclusion is unavoidable that a substantial, even though unspecified, portion of the newspaper's advertising volume and revenue is derived from advertise- ments of "nationally sold products." Thus the Herald American meets the advertis- ing standard announced in The Daily Press case. 13 The evidence does not establish from what location the newsletters are mailed, but that is immaterial 1' As this may be one of the earlier cases involving the new newspaper criteria to come before the Board, I take the liberty to set out some questions which the advertising stand- ard suggests, so that the Board may address itself to the questions, if it deems some clari- fication of the standard to be appropriate. To be considered as "nationally sold products" must the goods be sold throughout the Nation, or is it enough that they are sold in a sub- stantial number of States? To what extent may one infer that goods are sold "nation- ally" from the fact that they are so-called standard brands. If such an inference may be drawn, what products may be regarded as standard brands? What products are so well known to the American public that one may take judicial notice that they are "nationally sold," and how extensive must such knowledge be before the doctrine of judicial notice becomes applicable? These are not idle questions, for at least some of them are suggested by evidence the General Counsel presented in this proceeding He appears to assume, and to seek a finding, that various commodities such as Cinch cakemix, Burgermeister beer, Luzianne coffee, Norway sardines, Hills Brothers coffee, Playtex brassieres, and Lucky Lager beer, all advertised in the Herald American, are "nationally sold products" even though no evidence was adduced that they are sold "nationally." Perhaps one may take judicial notice that one or more of these products are sold "nationally." I find it unneces- sary to do so, nor to make any findings concerning any of the enumerated products, in view of the conclusion reached herein with respect to the automobile advertising 11 It is common knowledge that what are termed in the testimony as "popular cars" (for example, Chevrolets, Fords, and Packards) are sold throughout the United States. Thus, I take judicial notice that these are "nationally sold products." Cf. N. L. R B. v. M. L. Townsend, 185 F. 2d 378 (C. A. 9), cert. denied 341 U. S. 909, N. L R B. v Howell Chev- rolet Co, 204 F 2d 79 (C. A. 9), affd. 346 U. S. 482 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turning to the cartoon features, one may exclude them from consideration and, on the basis of facts meeting the other criteria, still emerge with the conclusion that the Respondent's operations affect interstate commerce and that the assertion of jurisdiction will effectuate the policies of the Act. However, as the parties dealt with the cartoons at the hearing as relevant to the question of jurisdiction, findings relating to the syndicated features are appropriate. The Respondent received the cartoons published between August 25 and December 8, 1954, from sourced outside the State, and by reason of that fact was, during the period in question, engaged in interstate commerce, notwithstanding the circumstance that the purchase of the publication rights was made either from or through a broker in California.18 A question arises, however, whether the evidence establishes that the cartoons are "nationally syndicated features." Only one of the cartoon features published by the Herald American is clearly identified. It bears the name "Angel." There is no evidence that it is published in any other newspaper. There is also no basis for judicial notice of such publication. This applies with even greater force to the other two features, for these are not even identified by name in, the record. From the nature of the evidence the General Counsel adduced, even if not from• any explicit statement made by him, I gather that his position is that a feature is syndicated "nationally" if it is distributed by a syndicate of national scope, even if the feature itself is not distributed "nationally." There may be good reason for grounding the assertion of jurisdiction over a newspaper upon such a theory, but a literal reading of the criterion does not support such a construction. I read the standard embodied in the phrase "nationally syndicated features" to mean that the "features" must be distributed "nationally," and not that there need only be a showing that they are distributed by a syndicate operating "nationally," however limited the distribution of the particular "features" may be. Thus I hold that the evidence in this proceeding does not establish that the cartoons published in the Herald American are "nationally syndicated features." 17 With respect to the jurisdictional issue, one additional matter requires comment, and that is whether the date (October 26, 1954) of The Daily Press decision pre- cludes the application of the criteria announced therein to a case involving claimed unfair labor practices alleged to have occurred prior to the announcement. There have been cases where the Board declined to assert jurisdiction over an employer charged with unfair labor practices allegedly committed before the announcement of applicable criteria. But these were situations where the employer was involved in a prior proceeding in which a position had been taken by the Board, or ex- pressed by one of its representatives, to the effect that jurisdiction would not be asserted on the basis of policies then in effect.18 This is not such a case. Nor '"The fact that the publication of cartoons was discontinued during the hearing does not affect the Board's jurisdiction. Nor is it material that the publication began after the discharges and other conduct alleged in the complaint as unfair labor practices, for jurisdiction is not conditioned upon a coincidence in time between the commerce facts and the alleged unfair labor practices, but is based upon the "over-all operations of the em- ployer" (Paul W. Speer, Inc, 94 NLRB 317). 17 It was stipulated at the hearing that the three cartoon features were ordered, respec- tively, from Harry Cook Syndicate (also known as Bell Syndicate), of New York; the Chicago Sun Times, of Chicago ; and McNaught Syndicate, of New York. Quite apart from my interpretation of the criterion, as set out above, it may be noted that the evidence bearing on the scope of the operations of the three syndicates is scant. "Angel" Is at- tributed to none of the three in the evidence but to an organization named Field Enter- prise, Inc., which also supplies features to the Chicago Sun Times, a newspaper. It may be that Field Enterprise, Inc., and the Chicago Sun Times are one and the same, but the evidence does not establish that fact The General Counsel presented no evidence that the Chicago Sun Times and McNaught Syndicate have distributed features to any news- paper other than the Herald American. Whatever moral conviction one may have about the matter, the fact-finder may not substitute mere opinion for proof. There is evidence that the Herald American published two Bell Syndicate cartoons on September 16, 1954, and no proof that it did so on any other day. The only evidence of publication in any other paper of Bell Syndicate features consists of proof that two cartoons (not identified by name in the record) attributed to that concern appeared in a New York newspaper on November 30, 1954 1Yellow Cab Co. of California, 93 NLRB 766; Screw Machine Products Co., 94 NLRB 1609; 4lmeida Bus Service, 99 NLRB 498; Tom Thumb Stores, Inc., 95 NLRB 57. The Screw Machine case left open the question whether a complaint would be dismissed "solely because the alleged unfair labor practices occurred at a time when the Board would not have asserted jurisdiction over the particular employer involved." HERALD PUBLISHING COMPANY OF BELLFLOWER 81 does the holding in the Wave decision preclude the assertion of jurisdiction. To be sure, the Board declined to assert jurisdiction there on the basis of advertisements of "national products." But assuming, without agreeing, that the advertising criterion should not be applied to this proceeding, there is still a vital distinction between the newspaper in the Wave case and the Herald American.19 Unlike the former, the Respondent subscribes to an interstate news service and publishes news supplied to it by the agency. Such a subscription is clearly analogous to "membership in interstate news services," on the basis of which the Board held in the Press case in 1950 that the policies of the Act would be effectuated by the assertion of jurisdiction, grounding the holding on the fact that such membership constituted a newspaper an instrumentality or channel of interstate commerce. I think that one can hold with equal logic that subscription to and use of newsletters of an interstate news agency such as United Press constitutes the subscribing publication an instrumentality or channel of interstate commerce.20 It is thus evident that at the times when it is alleged unfair labor practices were committed, the Respondent's operations met a standard prescribed by the Board for the assertion of jurisdiction?' Couched in different terms for specific application to newspapers, that standard has been in effect made part of the current criteria announced in The Daily Press case. Viewing the evidence as a whole, I find that the Respondent's operations affect interstate commerce; that the Board has jurisdiction of this proceeding; and that the assertion of jurisdiction will effectuate the policies of the Act. H. THE LABOR ORGANIZATION INVOLVED American Newspaper Guild, CIO, admits persons employed by the Respondent to membership and is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement The Respondent employs approximately 180 persons. These are distributed among the various establishments maintained by the Respondent, and include cash- iers, editorial employees, PBX (switchboard) operators, classified advertising per- sonnel, and advertising salesmen. (The newspaper is printed by mechanical de- partment employees. They are not involved in the allegations of unfair labor practices.) As stated earlier, C. S. Smith is president of the Respondent and publisher of the newspaper. He has complete control over its policies and operations. Ralph J. Brewer was general manager of the newspaper for many years prior to September 1954, and, in that capacity, subject to Smith's authority, exercised general' supervision over the newspaper's affairs. Because of ill health, Brewer relinquished the post of general manager in September. In that month he was made vice president of the Respondent, and Smith assumed the title and role of general manager. Other supervisors function on a departmental or otherwise specialized basis. Thus supervision over editorial personnel is vested in W. W. Butler who holds the title of managing editor. He has, and exercises, authority to hire and discharge editorial personnel. Direction of the newspaper's classified advertising is vested in Leonard Lugoff. Lugoff supervises the work of employees in his department, and has author- ity to hire and discharge classified advertising personnel. Another departmental supervisor is named Louis M. Murray. He has the title of sales manager and func- tions as "head salesman." 22 Murray is vested with, and exercises, authority to make recommendations for the hiring and discharge of sales personnel. Smith testified 19 In passing, it may be noted that no claim is advanced here, nor is there any evidence, that the Respondent has in any way been misled by, the Wave decision or by any of the other cases it cites. It is palpably not the Respondent's position that it engaged in con- duct alleged to be unfair labor practices because it assumed, on the basis of the Wave or any other decision, that the Board would not assert jurisdiction. 20 The concluding paragraph of the separate opinion of Board Members Murdock and Peterson in The Dally Press case suggests a similar view. With respect to such a posi- tion, the majority opinion in the case is not to the contrary. 21 For this reason alone, without regard to other factors, N. L. R. H. v. Guy F. Atkinson Company, 195 F. 2d 141 (C. A. 9), is distinguishable. 22 Smith initially described Murray's title as "salesman " He later referred to Murray as "head salesman," but asserted that "he isn't the sales manager though " The fact is that Murray's name is listed on the Respondent's printed letterhead with the title of "sales manager" (see General Counsel's Exhibit No. 1-J). 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at one point that on some occasions he accepted Murray's recommendations, and rejected them on others . However, the fact that Murray's recommendations carry particular weight is evidenced by Smith's later testimony that he has found Murray to be a "very good judge of people" and that ' he has approved "practically everyone that he [Murray ] has wanted to employ when he had vacancies." Smith, Butler, Brewer, Murray, and Lugoff are, and have been at all times ma- terial to this proceeding, supervisors within the meaning of the Act. The General Counsel contends that two employees , Robert Clark and Jack Cleland, were, during relevant periods, supervisors within the purview of the Act; and that for that reason certain statements made by these individuals are imputable to the Respondent . The Respondent took the position at the hearing that Clark and Cleland have no such supervisory status. Although both are still in the Respondent 's employ, neither was called as a witness. Clark is stationed in the newpaper's Lakewood office, and has the title of general manager of the Lakewood-Los Altos edition of the Herald American . In addition to Clark, there are four other employees stationed in the Lakewood office. These consist of two sales people, a "circulation man," and a classified advertising employee. There is observable in Smith's testimony an effort to water down the facts per- taining to Clark's status in order to negate an inference that the latter was a super- visor- during the period of alleged unfair labor practices . The way Smith put it at one point, Clark "calls himself the general manager of the Lakewood Herald Ameri- can." [Emphasis supplied.] But later Smith testified that Clark "was elected a member of the Chamber of Commerce out there so we gave him a higher sounding title." [Emphasis supplied. ] Moreover, that Clark's title is not merely self-imposed is suggested by the fact that the masthead of the Lakewood -Los Altos edition for Oc- tober 21 , 1954, lists Clark as "general manager." Smith attempted to minimize that with the assertion that "there is a line between Mr. Butler and Clark" (in the list of names in the masthead ). However, the masthead for the edition of September 16, 1954, which is somewhat different in composition from the October 21 edition, list- ing Clark as "local manager," contains no line separating any of the names. As to that, Smith offered the vague statement that "that was the line up [presumably the names on the masthead] at that time but it changed after that," and that "Mr. Brewer was on vacation and he had just taken off." The suggestion is not made here that Clark's title is decisive of his status or that the presence or absence of a line between names listed in the masthead is significant . ( It was Smith who sought to make a significant point of the line.) The features of Smith's testimony, set out above, are mentioned because they reflect on Smith 's credibility as a witness. They are reminiscent of his assertion , contrary to the documentary facts, that the news- paper does'not publish "anything but local news," and his claim, not important of itself but symptomatic of a pattern in his testimony , that Murray "isn't the sales manager," although the Respondent's letterhead lists that title for Murray. According to Smith , Clark was "manager of the Lakewood Herald American" be- fore he was given the title of general manager about 3 weeks before the hearing. While ."manager," Smith testified, Clark "had no authority ever to watch their work" (the work of the other four employees ). If that is so, then one may ask why Clark had the title of "manager." Be that as it may, at a later point, he stated that before Clark was made general manager, the latter had the responsibility of directing the two sales employees in the Lakewood office to perform given functions. Smith vol- unteered, however, that Clark "was only exercising his responsibility in a perfunc- tory manner." Here, too, I am persuaded that this statement is part of a pattern in Smith's testimony of attempting to dilute the real nature of Clark's status. In any event, whether Clark performed his supervisory work in a "perfunctory" manner or not is beside the point . Mere neglect by a supervisor of his duties does not constitute him any the less a supervisor within the purview of the Act. The statutory test is whether he is vested with authority to perform various acts, among them , "responsibility to direct" the work of others. Even if one agrees with Smith that Clark, while "manager," had authority only over the two salespeople, that is not a controlling factor. The important question is whether the authority he was sup- posed to exercise was not merely of a "routine or clerical nature, but require[d] the use of independent judgment." That it was not of a "routine or clerical nature" is manifested by some testimony Smith gave, signifying that the Respondent regards Clark's authority as having substantial importance Smith testified that Clark , as "top salesman," was "so busy himself that he was neglecting to outline the work for the other salesmen." Then, according to Smith , about a week before the hearing, "we called him in and made complete lists of all customers in that district and told him to allocate certain customers to certain salesmen and them [sic] he was responsible HERALD PUBLISHING COMPANY OF BELLFLOWER 83 for seeing that those customers were called on." The circumstance that a more effi- cient and formalized system of direction of the other salesmen was set up only re- cently does not alter the fact that Clark had similar supervisory responsibility prior thereto, for, as Smith also testified, "up until last week, . all he did was he was supposed to supervise them and would make out lists of certain customers and he allocated certain customers to certain salesmen." Moreover, with respect to the period before the "complete lists" were prepared, Smith's own testimony indicates that the Respondent looked to Clark for something more than the allocation of "certain cus- tomers to certain salesmen," for Smith testified with respect to a given sales venture: "He [Clark] had one man take over when he could not handle it. That is the only specific case that I know of where he actually paid attention to the man who worked with him, whose work he was responsible for." [Emphasis supplied.] Here, too, this may indicate that Clark was remiss in his attention to his supervisory duties prior to the preparation of the "complete lists," but the important point is that it also indicates that he was "responsible for" the work of others and was vested with, and exercised, authority to use selective discretion in the assignment of tasks. Notwithstanding the infirmities in Smith's evidence, I draw the inference from his testimony as a whole that Clark had such authority and was "responsible for" the work of others when he had the title of "manager," as distinguished from that of "general manager." In sum, Clark is now, and was at all relevant times, a supervisor within the meaning of the Act. Although Smith at one point described Cleland as "editor or head newsman" of the Lynwood edition, also terming Cleland "city editor of the Compton paper," the publisher denied that any reporters "work under" Cleland and that the latter has authority to give instructions to any other employee. However, it is undisputed that Butler told London, when hiring the latter in July 1950, that he "would be working under" Cleland, and instructed Cleland to assign London to "some stories" during the coming week. London, who was transferred from the Compton headquarters to the North Long Beach office in July 1953, testified that prior to his transfer, editorial employees received assignments to cover news events from Cleland, as well as Butler; and that on occasions when Butler was absent, Cleland performed the former's func- tions. Butler testified in effect that his absences were infrequent and usually of short duration; that "no one" was in charge during such absences, but that on such occa- sions he would call by telephone and give "instructions on various things" to "various people"; that during his vacations it was usually Brewer "who took over"; and that Cleland's "only activity" other than reporting, "was coordination of news." Butler agreed that he "sometimes" used Cleland "as a contact man" and "probably" more so than he did anyone else. Butler's testimony contains no specific denial that Cleland distributed reportorial assignments from time to time, nor does it elaborate on the instructions he gave by telephone to "various people." Bearing in mind Cleland's function as coordinator of news and as Butler's "contact man," it is not improbable that Cleland, upon specific instructions from Butler, performed supervisory functions from time to time as a substitute for Butler while the latter was absent. On the other hand, it is quite likely that such occasions were infrequent and of short duration. Upon close examination, there is no inevitable major inconsistency between London's version of Cleland's duties and that given by Butler, for the latter's testimony does not quite exclude the possibility that Cleland acted for him from time to time, while London's account contains no concrete measure of the extent to which Cleland acted as a substitute for Butler. Against the background of the infirmities in Smith's testi- mony, mentioned above, and others to be noted later, London's undisputed version of his conversation with Butler in 1950, London's description of Cleland's duties, and Butler's testimony on the subject, I am persuaded, contrary to Smith's claim, that Cleland, at least from time to time, exercises some authority over other employees, and gives them instructions in the form of work assignments. Moreover, it would seem- that Smith's own description of Cleland as "head newsman" implies the existence of newsmen subordinate to the "head." The evidence, however, is insufficient to sup- port a finding that Cleland's authority and functions are of such a nature as to con- stitute him a supervisor within the purview of the Act. There is good reason to believe that Cleland has substituted for Butler from time to time, as London claims, but I draw the inference that such occasions have been relatively infrequent and that Cleland has spent only a small portion of his time substituting for Butler. An em- ployee does not acquire a supervisory status within the meaning of the Act simply because he spends a small percentage of his time supervising others during occasional absences by his superior. N. L. R. B. v. Quincy Steel Casting Co., 200 F. 2d 293 (C. A. 1). The fact that London and others have received work assignments from Cleland is not of itself decisive, for, unlike the evidence pertaining to Clark, one is un- able.to determine from the record whether Cleland's functions in that regard were of a 387644-56-vol. 114-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD routine character or whether he was vested with responsibility for seeing that the as- signments were properly carried out. Thus I hold that the evidence does not establish that Cleland is a supervisor within the contemplation of the Act. The Guild made efforts to organize employees of the Respondent in the spring and' summer of 1954. As will appear in more detail later, Sol London, Doris Farley, Raymond J. Ross, and Gloria Hickey either engaged in union activity or manifested, their interest in the Guild at one point or another during that period. It is undisputed that London was discharged in July 1954- and Hickey; Ross,, and Farley in the following month. The General Counsel contends, and the Respondent denies, that they were dismissed because of their union activities or affiliation: ' The' General Counsel also contends that the Respondent interfered with, restrained, and coerced employees during the month of July in the exercise of rights guaranteed" them by Section 7 of the Act, by various statements and acts of supervisors, including an attempt to engage in surveillance of what it believed to be a union meeting, threats to discharge employees who engaged in union activities; and the granting of wage increases to employees in order to dilute their interest in unionization. There is no dispute that the wage increases were given, but the Respondent denies that any unlawful motive was behind them. With some exception to be noted later, the supervisors to whom the General Counsel imputes acts or statements constituting- interference, restraint, and coercion deny that they engaged in such conduct: Evidence bearing on the allegations of interference, restraint, and coercion will be considered first below, and will be followed by a consideration of the motivation for the discharges. B. Evidence of interference, restraint, and coercion Turning first to the alleged attempt at surveillance, the allegation rests upon the, testimony of William L. Sheets, who is employed in one of the community offices of the Herald American. Sheets testified that when he came home from work one afternoon shortly after London's discharge (either on the same day or the next, according to Sheets' estimate), he found Murray there, and that Murray told him that he had come to see if a union meeting was in progress at the house: Then, Sheets testified, he asked the reason for such an assumption, and Murray-replied that he had heard Sheets inviting Ross to his home "to pitch horseshoes", had assumed that "horseshoes was the code word to signify the intention of calling a union meeting"; and had called on Sheets "to verify it." According to Sheets, Murray then "apologized for his misapprehensions." - Murray, called by the Respondent, agreed that he visited Sheets' home on the, occasion in question, but described a different motive for his visit. Stating that he has known Sheets for several years and that the latter "has had a liquor problem," Murray asserted that he had heard Sheets "make a remark [in the office] that he was going to play horseshoes"; that to him (Murray) that meant "opening a keg of nails" (or to "get drunk," as Murray later explained); that Sheets' "lives in the' same general neighborhood" as he; and that on his way home, as he was convinced that Sheets meant that he was going to get drunk, he stopped at Sheets' house "to- see if everything was 0. K." Murray stated that Sheets was not there when he arrived; that he talked to Sheets' wife, discovering during his talk with her that Sheets had a "horseshoe pitch" in his home; that Sheets came in about 20 minutes after his arrival; and that he "kidded [Sheets] about the horseshoe incident," explaining, "Bill, I got your remark on the horseshoes and I thought perhaps there was something I missed, so I came over." Murray denied that he visited Sheets'- home in order to see if a union meeting was in progress or that he had been instructed by any of his superiors to go there for that purpose. If it be asserted that there is some implausibility in Sheets' claim that Murray said that he took the former's reference in the office to horseshoes as a "code word," the fact is that Murray's testimony; too, indicates that he gave a euphemistic inter- pretation to the remark. Thus the testimony of both witnesses would indicate,that Murray did not accord a literal meaning to the remark he claims he heard Sheets' make in the office: - - Be that as'it may, on'the credibility issue presented, one matter, among others; to. keep in mind is that there is no evidence that Sheets has any interest in the outcome of.this proceeding. He is currently in the Respondent's employ. ' -What ,is more;' he' appears to have a position of some responsibility, since, his- name ' and, title of. "division editor" are listed in the masthead of the Lakewood-Los Altos edition of the Herald American; and the evidence indicates that he is the second highest paid nonsupervisory editorial employee (see General Counsel's Exhibit No..16). Against that background, no reason appears why he should give testimony contrary to his HERALD PUBLISHING COMPANY OF BELLFLOWER 85 Employer's interest without a valid basis . In short, Sheets impressed me as a truth- ful and disinterested witness. In contrast, Murray's testimony reflects some uncon- vincing features not only with respect to the incident under consideration , but, as will appear later, in connection with Farley's discharge. Why he should not have given a remark about pitching horseshoes a literal construction , rather than inter- preting it to mean that Sheets meant to "open a keg of nails" (also a euphemism) does not plausibly appear. Murray offered the explanation that Sheets had been addicted to alcoholism , stating, also, that he "knew that [Sheets] did not play horseshoes." (Admittedly, he found a "horseshoe pitch " at Sheets' home, although claiming to be unaware of its existence before his visit .) However, he agreed that he had not seen Sheets in an intoxicated state for about a year prior to the alleged remark about pitching horseshoes. Moreover, Murray's description of the setting in which he claims the remark was made has a note of vagueness. He professed not to be able to remember to whom the remark was made, although agreeing that Sheets "was talking to someone else" whom he (Murray ) did not "associate with drinking." At one point, Murray testified that the remark, "Let us go and pitch some horseshoes," could "have been directed" at him, but he admitted that he did not go to Sheets' home by invitation , also stating that he does not recall whether the statement was in fact made to him. The sum of the matter is that I find Murray's explanation of his visit to Sheets' home to be unconvincing, and I credit Sheets' version of the incident at his home. Although Murray asserted that he received no instructions from any of his superiors to call at Sheets' home, it may be borne in mind that his attempted sur- veillance of what he believed was to be a union meeting was closely related in time to other unfair labor practices, 'to be described later, and the inference is warranted that Murray's visit was part of a pattern by the Respondent of countering or discouraging union activity among its nonmechanical employees. In any event, whether or not Murray acted under instructions from any superior, the fact is that he was a supervisor and represented management in the eyes of the employees, and his conduct is thus imputable to the Respondent The tact that no union meeting was actually in progress does not affect the conclusion that Murray's attempt to engage in surveillance violated the Act. The attempted surveillance and Murray's statement to Sheets of the purpose of his visit contravened Section 8 (a) (1) of the Act. Sheets also testified that on one occasion Smith telephoned him at one of the community offices and told him that "he had learned of a movement to organize a Guild in the Herald American, and that he would rather close his papers down than sign up with the Guild." Sheets stated that he could not recall the date of the call or whether it occurred before or after London's discharge, but he estimated that the call was made "probably [in] June or July " Smith denied making the state- ment, asserting: "No such conversation occurred It would have been ridiculous on my part to make any statement at all to Mr. Sheets. It did not concern his de- partment " Smith also stated that he "hardly knew Mr Sheets by sight" at the time in question. Whether Smith "hardly knew" Sheets by sight is not decisive, although it may be noted that Smith's title was then, as it is now, division editor, and that he was then, as he is now, the second highest paid among the nonsupervisory editorial employees. Nor may one find guidance to the facts in Smith's inaccurate state- ment that the Guild's organizational activities "did not concern" the editorial de- partment. As in the case of Sheets' description of Murray's visit, no reason appears why Sheets should fabricate a story contrary to his Employer's interest He is a disinterested witness. Smith is not. and, as pointed out earlier, other portions of Smith's testimony reflect a substantial number of infirmities. These militate against acceptance of his denial that he made the statement Sheets attributes to him. I credit Sheets. The evidence of Smith's statement is undoubtedly relevant to the question of the Respondent's attitude toward organizational activities by its employees, and as background for an appraisal of its motivation for the discharges The question arises whether a finding should be made that Smith's statement violated Section 8 (a) (1) of the Act. I do not make such a finding for reasons set out below. The complaint in effect alleges that the acts of interference, restraint, and coercion con- sist of specific statements or conduct by named supervisors. Smith's statement to Sheets is not alleged. I do not hold that a finding of violation of Section 8 (a) (1) can be made only if the conduct in question is specifically detailed in the complaint and attributed there to a named individual What I do hold is that there should be, some appropriate allegation to support the finding. .This appears to be subject to some' exception (to be described below) which may be spelled out from a number of cases. But to lose sight of the function,of a:complaint as staking out the boun- daries of the issues, and as the instrument for informing a•respondent of•the charges 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made against him, is to invite an attrition of procedural machinery designed by the law to promote fair play and clarity in statement of the issues The exception noted above is suggested by cases holding in effect that a finding of violation of the Act is appropriate, although the conduct in question is not al- leged in the complaint, if the issue leading to the finding was "fully litigated at the hearing" (Olin Industries, Inc, 86 NLRB 203, 206, footnote 10, enfd. 191 F 2d 613 (C. A. 5), cert. denied 343 U. S. 919) 23 However, 1 do not read these cases as requiring a finding that Smith's statement violated the Act The disputed factual issue of whether he made the statement was "fully litigated" in the sense that both sides adduced relevant evidence bearing on the subject As pointed out earlier, the statement imputed to Smith bears on issues raised by the pleadings. But that does not mean that the evidence adduced with respect to the disputed factual point raised an issue, in turn, whether Smith's statement constituted a separate violation. Such an issue was not raised, and, therefore, could not have been "fully litigated," for the simple reason that the Respondent has nowhere been put on notice, whether in the complaint or otherwise, that Smith's statement, relevant though it may be to various issues presented by the pleadings, is also subject to a finding that it was of itself violative of the Act. Hickey and Farley, who were employed in the Bellflower office prior to their dis- charge, impute statements of a coercive nature to Lugoff Hickey worked under Lugoff's supervision. According to Hickey and Farley, the statements were made on one occasion during the first half of July 1954 in the course of a conversation between Lugoff and Hickey in the Bellflower office. Hickey's version, under di- rect examination, was that Lugoff asked her if she had any connection with the Guild; that she replied that she had none; that he then said that he hoped she had no connection with the organization because employees connected with it would be dismissed immediately; that he then stated that he knew that there were Guild activities going on, "possibly centered in the North Long Beach and Bellflower offices," and that Smith had told him "to find out who was responsible" and to dis- charge all those in the classified department if necessary. Under cross-examination, Hickey gave substantially the same version, except that she omitted any reference to Smith's alleged instructions to Lugoff. Farley's account of the conversation is less detailed. She stated in effect that she did not hear all of the discussion be- cause she was attending to some duties, and that she "didn't pay too much atten- tion" to it. Her description of, the interrogation of Hickey by Lugoff is that he asked Hickey "did she know anything about it, and who was involved." Farley, also stated, in substance, that she heard Lugoff say that he was glad that Hickey was not involved, and that Smith was going to discharge all those in the classified de- partment if he did not find out who was involved in the union activities. Lugoff testified that Smith did not give him any instructions to discharge anyone "because of union activities," and in effect denied that he made the remarks imputed to him. In resolving the credibility issue, I have given consideration to variances between the Hickey and Farley accounts, and to differences between Hickey's initial version and the one she gave under cross-examination. These factors are not decisive. The testimony of the 2 women deals with details of a conversation that occurred, according to their account, about 5 months earlier. Indeed it would be strange, and perhaps a reflection on their credibility, if they were in complete accord on all details of the incident. Upon observation of both, I formed the opinion that they endeavored to give their best recollection and my impression was that they were both forthright witnesses. Moreover, although they differ in details, they are broadly in accord with respect to two significant features: (1) That Lugoff inter- rogated Hickey on the subject of union activities; and (2) that in substantial effect, if not in precise terms, Lugoff imputed an intention to Smith of finding out who was responsible for union activities, and of discharging all employees in the classified department if that were necessary to eliminate union sentiment there. This is reminiscent of Smith's statement, quoted by Sheets, that he "would rather close his papers down than sign up with the Guild." The testimony of Sheets, a disin- terested witness, contributes corroborative weight to that of Hickey and Farley. Moreover, as indicated by the testimony of Hickey and Farley, there is good reason to conclude from evidence of a conversation between Ross and Butler on July 12, 1954, that the Respondent was in fact endeavoring to find out which of its employees were engaged in union activities. The conversation will be described in detail later in connection with Ross' discharge, but one may note here that on the occasion in 23 See, also , American Newspaper Publishers v. N L JR B.. 193 F. 2d 782 (C A. 7), affd. 345 U. S. 100; United Biscuit Company of America, 101 NLRB 1552, 1568 , footndte 27, enfd . 208 F. 2d 52 (C. A. 8), cert. denied 347 U. S. 934. HERALD PUBLISHING COMPANY OF BELLFLOWER 87 question Butler sought to find out from Ross if the latter had any connection with the Guild. Lugoff's interrogation of Hickey, it seems to me, was cut from the same cloth. Finally, as will appear later, Lugoff gave some implausible testimony on the subject of Hickey's discharge, and this weighs against acceptance of his denial ,that he made the remarks attributed to him by Hickey. I find that on the occasion in question, he asked Hickey whether she was con- nected with the Guild; stated that employees so affiliated would be dismissed im- mediately; and, in substance, quoted Smith as telling him to find out who was re- sponsible for union activities in the classified department and to discharge all em- ployees in the department if that were necessary to eliminate any sentiment there for unionization. As a consequence of such interrogation and statements by Lug- off, the Respondent violated Section 8 (a) (1) of the Act 24 On July 18, 1954, the Respondent increased the weekly wages of all but two of the nonsupervisory employees on its editorial staff.25 In all, the wages of 12 em- ployees were raised The increases were not uniform, some amounting to $5, others to $10, and several to $15 per week. Both Smith and Butler described the Respondent's purported reasons for the in- creases. Smith testified that he became aware in or about March 1954 that the economic condition of the newspaper was deteriorating; that he held a meeting of department heads in March and told them that the newspaper was "losing con- siderable money," and that they should "cut down" on expenses as much as they could; that at the meeting discussions were also held concerning "more efficiency in the job," prospects for "additional business," and the "possibility of trying to raise rates"; that prior thereto, he had felt that wages of editorial personnel had lagged behind those of employees in other departments, and that he and Brewer had discussed that matter prior. to March; that in that month (or in April), subse- quent to the supervisors' meeting described above, taking a "more active interest" than previously, he brought the matter of wage scales up "rather forcibly" at a meet- ing with Brewer and Butler, telling them that he "didn't want cheap people" and "would rather have one high priced man than three cheap ones"; that Butler ex- pressed his belief that the Herald American was "paying more than other news- papers in the neighborhood"; that at that time, he (Smith) "wasn't engaged actively in handling the paper and . didn't want to step in and take over arbitrarily"; that he raised the question of wages again later and "insisted on a survey" of wage rates paid by such newspapers; and that in June or July Butler reported the re- sults of such a survey to the effect that the other newspapers "were either paying about the same prices that we were or less." (At one point in his testimony, Smith stated that he requested the survey in July or August. Elsewhere he testified that the survey results were reported to him in June or July. The increases, as noted earlier, went into effect on July 18.) Putting an evaluation of Smith's testimony aside for the time being, it is diffi- cult to determine from Butler's testimony when definitive discussions were held be- tween him and Smith on the subject of increases for the editorial employees. Stat- ing (in some contrast to Smith) "I think there was a little conversation about wages- it didn't amount to much-around March," Butler testified that he and Smith had discussed the subject over a period of 4 or 5 months preceding the increases; that "at least as early as May, perhaps earlier," Smith took the position that wages of editorial employees should be increased; and that he (Butler) replied that he hoped that the Respondent's financial position would warrant the increases in the fall, but that he was fearful that it would be difficult to publish the newspaper "if we had to pay more and then cut down on the number of people." At another point in his testimony, Butler agreed to a suggestion that the "first significant con- versation which eventually resulted in the wage increase" took place in May, but when asked to describe what was said, he replied, "That is difficult to remember because we had several conversations." Later, agreeing that he had a "specific con- versation" (with Smith) relating to the increases, he testified that it "would be very difficult to say" when it occurred. Additional questioning on the subject of such a conversation brought the reply, "I am not sure of my recollection, but if I were trying to place it, I would say it was probably in June." On that occasion. according to Butler, Smith told him that the wages of the editorial employees "should be 21 That conclusion is not affected by Smith's denial that he eves ordered anyone "to fire any employee for union activities." The fact is, as will appear, that employees were dis- charged for such activities. In any event, notwithstanding Smith's denial, Lugoff's state- ments to Hickey are imputable to the Respondent. As nearly as can be determined from the evidence, those who did not receive increases on that date were Donald Desfors and Marion Mattison. The latter's weekly wages were raised by $10 about 10 days before the general increase 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD higher," and he replied that perhaps Smith "was right and that I would look into it and bring a report back to him as to what I thought it should be." Butler stated that he made a survey and reported orally to Smith "somewhere around the middle of July" that Smith "was correct, that we needed some wage increases." According to Butler, his survey took the form of inquiries concerning wages paid by four nearby newspapers-one in Bellflower, another in Norwalk, a third in Hunt- ington Park, and the fourth in Downey. He stated that he could not recall the name of the Downey newspaper, and that his information concerning wages paid by the Bellflower newspaper came from an interview he had with a former employee of the paper, but testified, "Now, whether that [the interview] was at that time or not, 1 am not positive " From the interview, Butler stated, he gathered that the Bellflower paper paid "between $5.00 and $10 00 a week higher" than the Herald American. Concerning his inquiry about the Huntington Park paper, he testified: " I believe I looked it up, as fat as I could find, the record of what was being paid in Huntington Park and I remember discussions [sic] wages with one of the reporters of the Hunt- ington Park papers, who came in to see me." Butler described the information from the reporter as "a little bit uncertain " As nearly as he "could understand it," Butler stated, he learned that the rate for beginners was lower on the Huntington Park paper than for comparable personnel on the Herald American, but that the former's wage rates "for the long time people would be a bit higher." Butler did not describe the form his inquiries took with respect to the Norwalk and Downey papers, but he stated that wages on the former were about $5 to $10 higher than those paid editorial employees by the Herald American. A number of factors support the General Counsel's claim concerning the wage increases. Of these, the timing stands out in significance I have no doubt that in the month of July, the Respondent was considerably concerned over union activities by or on behalf of the Guild. Evidence of this may be found in Smith' s statement to Sheets, Butler 's interrogation of Ross on July 12, Lugoff's conversation with Hickey during the first half of July, and Murray's visit to Sheets' home about July 17 or 18 There is good reason to believe that by July 17, the date of London's dis- charge, the Respondent suspected that the editorial department was a center of union activities in the person of London. He was employed in the North Long Beach office, and in that connection it will be recalled that some days before London's discharge , Lugoff told Hickey that Guild activities were "possibly centered in the North Long Beach and Bellflower offices." The circumstances of London's discharge will be discussed later, but the conclusion may be noted here, supported by reasons to be set out in another section of this report, that he was discharged for union activities on July 17 The wage increases were put into effect on the following day. The conclusion that this was no mere coincidence is bolstered by factors in the testimony of Smith and Butler, as well as the quality of evidence they gave. According to Smith , the Respondent was not only "losing considerable money" early in the year, but its "profit and loss figures for the year . . . were very bad" in midsummer, showing a loss of about $5,400 by the middle of August. Yet at about the very time when the financial condition was allegedly "very bad," the Re- spondent gave increases totaling $125 per week, increasing its financial outlay at the •rate of $6,500 per year. There is no evidence that any employees had requested that their wages be raised, and in the absence of such evidence, it is pertinent to inquire why the Respondent should select the time, of all others, when it is claimed that the "profit and loss figures . . were very bad," to raise the wages of all but two of the Respondent's nonsupervisory editorial employees To be sure, there are gen- eralizations in the testimony of both Smith and Butler to the effect that it was Smith's policy to effect efficiency and economy by paying higher wages to a reduced staff, but if that is so, it seems strange indeed that the policy was not put into effect in March when the newspaper was, according to Smith, "losing considerable money," but was deferred until a period, months later, when the Respondent was manifestly concerned over sentiment among its employees for the Guild. Smith endeavored to explain away the delay by stating that he was not "engaged actively in handling the paper" in March and "didn't want to step in and take over arbitrarily which I did do in July and August." In the light of my impression of Smith, the explanation has a tenuous cast During his testimony, he was emphatic and positive in demeanor and assertion , impressing me as an individual who is disposed to seek domination over a situation with which he, is concerned. He had complete control over the newspaper in March, notwithstanding his claimed abstention from active direction of its affairs, when, as he asserts, he raised the wage question "rather forcibly" with Brewer and Butler, and one may well entertain a substantial doubt that the alleged delay was merely the product of his forbearance. As against The subjective claim of such-forbearance advanced now, there is the objective fact that the increases HERALD PUBLISHING COMPANY OF BELLFLOWER 89 were granted to editorial employees in a setting of unfair labor practices, following by 1 day the discharge of London, an editorial employee, because of his union activi- ties. I think that the objective facts are a sounder guide to an appraisal of the Respondent's motivation for the increases than the claim that they were delayed because Smith did not wish previously to intrude himself "arbitrarily" into effectua- tion of management policy. Moreover, it is difficult to see why it would be arbitrary for an individual having complete control over an enterprise, which is manifestly -his in fact if not in form, to require his subordinates to put a given policy into effect which'he believes to be right as a good business practice. There is an additional, and important, reason for questioning the Respondent's claim that the increases were dissociated from the union .sentiment among the em- ployees. Implicit in Butler's testimony, at least, is the claim that the increases were ,given.to bring the wages of editorial employees into line with those paid by neigh- =boring newspapers. The results of the alleged survey, as Butler described them, would indicate that he learned that editorial personnel of two of the papers were paid .higher wages than the employees of the Respondent, and that wages paid by a third were higher for some employees and lower for others. (Butler did not specify what he learned with respect to the fourth newspaper allegedly surveyed.) Also implicit in Butler's testimony is a claim that he reported his findings to Smith. Yet, in contrast to the alleged findings, it is a striking fact that Smith testified that Butler re- ported "that they [the other papers] were paying about the same prices or less." [Emphasis supplied.] The discrepancy is such that it leads to a substantial doubt, to say the least, either that the survey was made or that Butler made a report to Smith. I find myself unable to view either the alleged survey or the report as a reliable basis for findings. Finally, before setting down a definitive conclusion concerning the increases, some comment on the quality of Butler's testimony is appropriate not only as a basis for evaluating the motive for the increases, but because such an evaluation has a bearing on the evidence pertaining to London's discharge, which will be discussed later. A pattern of evasiveness runs through Butler's testimony. He gave his evidence with cautious demeanor, but I concluded that the caution was the product of an intention to avoid committing himself rather than of a desire to testify accurately in areas where the Respondent's interest could be adversely affected. Even with respect to so basic and undisputed a matter as the fact that the increases were grant- ed-a fact obviously within his personal knowledge-when asked whether increases were granted to editorial employees in July 1954, he replied, with cautious de- meanor : "Yes, my understanding is there were, yes." [Emphasis supplied.] He seemed careful to avoid commitment when efforts were made during his examina- tion to determine concretely when the question of granting the increases first be- gan to take crystallized form-an important question if one bears in mind the setting in which the wages were raised. The pattern of evasiveness was quite pronounced when inquiry focused on details of his alleged survey. He professed a loss of trecollection as to the name of the Downey newspaper, although he has worked in the area for many years, and little more appears in his description of his inquiries than that he spoke to an employee of one paper and to a former employee of another- a somewhat casual approach to the survey which Smith claims he "insisted" upon. The type of caution described above was manifested in his references to the infor- mation he claims he received from the former employee. In that connection, he testified : "I believe I talked to a former employee if I remember correctly. I am not certain however. . . . The thing I am not quite clear on-at one time I heard that the society editor on the Herald Enterprise ^(a neighboring newspaper in Bellflower) was disengaged and I interviewed her about wages. Now, whether that was at that time or not, I am not positive." Thus his testimony even leaves open the question whether the alleged conversation with the former employee of the Herald Enter- prise was part of his alleged survey, and if the survey was made, one may ask whether it consisted of anything more than a chat with an unidentified reporter for a Huntington Park paper, who, according to Butler, gave him information that was "a little bit uncertain." Butler's testimony offers no safe guide to an answer to the question. It is unnecessary to pursue other details of Butler's testimony, for what has been said sufficiently exemplifies my conclusion that he was not a' forthright witness. The sum of the matter is that the testimony of Smith and Butler, and its quality, contribute to the conclusion that the wage increases were timed to act as a deterrent to organizational activities among the Respondent's employees, thus interfering with rights guaranteed the employees by Section 7 of the Act. I find that by putting the wage increases into effect the Respondent violated Section 8 (a) (1) of the Act. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. London's discharge London entered the Respondent's employ as a reporter in July 1950. His salary at that time was $50 per week. He was employed m the Compton office until July 1953, when he was transferred to the North Long Beach office, remaining at the latter place until his discharge on July 17, 1954. He was the only editorial employee stationed in the North Long Beach office. The other personnel there consisted of a classified advertising employee, 2 or 3 salesmen , and a circulation manager. Dur- ing London's employment, he received a number of increases, the last of them in March 1954, when his wages were raised $5 per week. At the time of his discharge his weekly salary was $75. While employed in Compton, London and other editorial employees stationed there customarily worked until about 7 or 7:30 p. m. each Tuesday and Wednesday. This was necessitated by the fact that the Thursday issue of the newspaper went to press on Wednesday, which is known as a "make-up" day, that is, a day when the news- paper is made up for printing. Mondays and Thursdays were relatively slack periods for the Compton editorial personnel , and they were given an afternoon off on either one of those 2 days to compensate for the extra time worked on Tuesdays and Wednesdays . Following that practice , London was given Thursday afternoon off. The Compton office was open each Saturday (which is also a "make-up" day in preparation for the Sunday issue). While in Compton, London worked a full day on Saturdays. After his transfer to North Long Beach, London customarily worked late on Tues- day nights, spending a varying number of hours at the Compton office , sometimes until midnight or later. The time there was devoted to preparing and turning in copy and in "make-up" work. For some time after his transfer, it was London's practice to come to the Compton office from North Long Beach about 6 : 30 p. m. and spend the remaining late work hours in Compton . At one point or another, he altered this practice to the extent that he usually came to Compton about 10 p. m. for the purpose of turning in his copy and performing related "make-up" work, re- maining at the Compton office for varying periods of time, sometimes finishing his work as early as about 11 p. in. and at other times at midnight or later. On 6 or 7 occasions during his year at North Long Beach , he left "the office" (whether North Long Beach or Compton is not made clear in the record) at about 8 p. m. on Tues- day, worked at home after that hour typing stories, and brought the copy to the Compton office on the following morning. The North Long Beach office was closed on Saturdays, and London did not work there on those days. He nevertheless worked Saturday mornings, proceeding di- rectly to the Compton office to turn in copy and perform "make-up" work, and usually arriving there at about 6:30 a m 26 On such days, he usually finished his work before noon (sometimes, the record indicates, by or before 11 a. m.). depending "on conditions in the back shop" (presumably meaning conditions in the press shop). He did not work on Saturday afternoons while attached to the North Long Beach office. While stationed there, he took Thursday afternoons off, commencing to do so shortly after his transfer and continuing the practice until his discharge. (The question whether he had permission to do so will be considered at a later point.) London began to engage in organizational activity among the Respondent's em- ployees on behalf of the Guild about the end of April or early in May 1954, soliciting memberships for the Guild and securing some signatures on applications for member- ship. That he was active in July is evidenced by the fact that he solicited Cleland to join the Guild on July 10, pointing out what he regarded as advantages of unioni- zation, and giving Cleland an application card?7 20 London testified that on Saturdays he "usually got there [Compton] at 6: 30," with- out specifying "a. in " or "p m." From the context of his testimony as a whole, it is evi- dent that he meant that he usually arrived in Compton on Saturdays at 6 • 30 a. in 24 London gave a detailed (and undisputed) account of the conversation. Reference need be made to only some of its aspects . On the occasion in question , before London re- vealed that he was active on behalf of the Guild, Cleland asked him whether he knew any- thing about a "Guild drive" at the paper. The General Counsel apparently seeks a finding that Cleland's inquiry violated Section 8 (a) (1). As stated earlier, the evidence does not establish that Cleland was a supervisor within the meaning of the Act It need not be decided whether the finding sought may be based on the fact that Cleland exercised some authority over-others, and that when London was hired he was told by Butler that he "would be working under" Cleland A finding that Cleland's inquiry violated the Act would'neither add to, nor detract from, the remedy to be recommended below. The evi- HERALD PUBLISHING COMPANY OF BELLFLOWER 91 There is no doubt that Butler was aware that London engaged in union activities. Butler himself conceded as much, although putting it in this fashion: "I had only a vague report which was only indirectly that he had been spendiing working time down there, soliciting membership for the union." Then he stated, "I believe it was Mr. Brewer [who gave him the report] but it was indirect." In any event, it is evident from the whole record, including the testimony (to be described later) of Oney A. Fleener, one of the Respondent's employees, that Butler knew at the time he discharged London that the latter had engaged in organizational activities on behalf of the Guild. Butler discharged London shortly after the latter had completed his "make-up" work in Compton on Saturday, July 17. The managing editor denied that he dis- missed London because the latter engaged in union activities. Butler testified that he had once warned London "about leaving early on Thursday"; and that thereafter, he had come to the North Long Beach office shortly before noon on a Thursday (about a week before the dismissal , according to Butler's estimate), had found London absent, and had been informed by others in the office that London had gone for the day. The sense of Butler's testimony, taken as a whole, is that he dis- charged London because the latter took the afternoon off on the Thursday in ques- tion in disregard of a previous warning not to follow that practice. The alleged justification does not stand up under scrutiny in the light of factors set out below. London testified that in or about August or September 1953, he told Butler that he "had been taking off on Thursday afternoons" because he "had been working late on Tuesday nights"; and that Butler replied, "I know that as well as you and as long as you turn in your copy, that is all we require " Butler's testimony con- tains no express denial of the quoted statements. But quite apart from that circum- stance, there are factors which render plausible London 's assertion that Butler knew and approved the former's practice. As Butler himself put it, he "recognized the right of the employee, if he had some duties that were out of the working hours, he might go home a little earlier." Although Butler also asserted that such a practice is different from London's custom, the fact is that there appears to have been a policy, in general, under which editorial employees took compensatory leave for extra working hours. This conclusion finds additional support in the undisputed evidence that editorial personnel in the Compton office were given an afternoon off on Mondays and Thursdays to compensate for evening work on Tuesdays and Wednesdays. As London worked late on Tuesday nights, while stationed in North Long Beach, it is not implausible that Butler should recognize that it was equitable for London to take compensatory time off each Thursday afternoon, even if London, in contrast to his practice while stationed in Compton, was not required to work on Saturday afternoon. More to the point, it may be borne in mind that London followed the practice of taking Thursday afternoons off substantially throughout the entire year that he was stationed in North Long Beach; and that Butler, in the course of his duties, customarily visited that office on Thursdays at varying times between 10.30 a. m. and 2 p. in. Yet Butler, here also manifesting the vagueness which characterizes so much of his testimony, stated that "it was quite some time" after London's trans- fer that he became aware that London was not at work on a Thursday afternoon; that he could not recall when that was; that he "couldn't swear" whether it was in 1953 or 1954; and, finally, that it was "probably" in the spring of 1954 that he first became aware of the matter. Bearing in,mind that Butler called at the office each week on the very day that London absented himself, I think it improbable that Butler would,not become aware of London's practice much sooner than the man- aging editor's testimony suggests. Moreover, Butler's claim that he warned Lon- don about the practice is also cloaked in vagueness. The managing editor testi- fied that "at least four or five times," when he called at the office, he noticed that London was absent in the afternoon; that on 1 or 2 occasions, he inquired of others in the office as to London's whereabouts, and was told that-the employee had gone for the day; that as a result of the latter's absences, he became "suspicious of what [London] was doing"; and that he warned London about the practice- As to the terms of the alleged warning, Butler stated that his "memory of the conversation is very vague as to what actually was said," but he nevertheless testified that he dence will not support a holding, apparently also sought by the General Counsel, that Cleland informed the Respondent of London's organizational activities, and I make no such finding Nor do I base findings of unfair labor practices made herein on,the theory that any statements by Cleland are imputable to the Respondent. However, the conversa- tion between London and Cleland is admissible as establishing, the fact of London's or- ganizational activities during a period relevant to issues in this proceeding. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called London's attention to the fact that he had Saturday afternoons off, and that he told London that "we were supposed to be on the job five and a half days in the week," and that "he [London] should not be leaving early on Thursday any more." Asked to fix the time of the alleged warning in relation to the last occasion when he states that he found that London had gone for the day, Butler stated, "If I were guessing, I would say it would be between one and two months, but I couldn't swear to it," and followed this with a statement that his "recollection is very vague on the point." Thus, according to the estimated time of the alleged warning, if one may term Butler's guess an estimate, one is in effect asked to believe that London was able to take each Thursday afternoon off, without permission, for almost an entire year before Butler got around to warning him to stop the practice. A reasonable regard for probability militates against such a belief. Moreover, as will appear, at the time of the discharge, Butler said nothing about London's practice of taking Thursday afternoons off, and this contributes support to the conclusion that Butler was aware of, and had'approved, London's absences. In sum, I conclude that Lon- don's account of his conversation with Butler in or about August or September 1953 is credible; that thenceforth London took such afternoons off with Butler's knowl- edge and permission; and that Butler did not thereafter warn him to stop the practice. What is more, there are additional indications in the record, stemming from un- disputed testimony, that the justification for the discharge now put forward by But- ler is no more than an afterthought As a preface to what follows, it may be borne in mind that London worked for the Respondent for about 4 years; and that dur- ing that period he received increases totaling 50 percent of his starting salary, the last increase being given to him only a few months before his dismissal. When Butler-discharged'L'ondon, the latter asked for an explanation, stating that he did not- think, it right that he should be discharged "without notice or explanation." Butler replied, "I cannot tell you why," and when London continued to press for an explanation, Butler stated, "All I can say is that you thought more about other things than you did of the paper." London stated that he was not "satisfied with that." to which Butler replied that if London wanted anything else, he would have to see Smith. London asserted that he would do so and left. (London's account of this conversation with Butler is undisputed. When Butler was asked during his exam- ination whether he recalled what he said to London, he replied; "Not clearly, no, I don't think so.") Shortly thereafter, that same day, London went to Smith's home and talked to the publisher. Butler was present. London asked Smith for an ex- planation for the dismissal, and the latter replied that the reason was that he had not been satisfied with London's "political reporting." Then, when requested by London to specify "what reporting," Smith answered, "Oh, well, just generally speaking." Thereupon London asked Butler why that had not been mentioned to him during the past 2 weeks, and Butler answered that "there had been a general deterioration." In response to a complaint by London that he had been dismissed "without notice, after working on the paper for four years," Smith stated that he would give London "two weeks' pay instead of notice." London left after some additional conversation during which he remarked that both he and Smith knew the "real reason" for the discharge, to which Smith replied, "Well what is it then?" (London testified that he could not recall what answer he gave to that.) 28 It will be observed that at no point was London told either by Smith or Butler that he was dismissed because he had taken time off without permission. The sense of Butler's testimony is that that was the reason for the dismissal; yet Smith told London that the cause was the latter's "political reporting." Why, it may be asked, this disparity? This shifting about of reasons bespeaks a search for a pretext to justify the dismissal and to conceal its real motivation. It is also well to recall that when London initially asked Butler for a reason for the discharge, the latter replied, "I cannot tell you why," and later referred London to Smith, thus in effect telling London that he (Butler) had been forbidden to give London the reason. Now, why should Butler follow such a course unless it was the Respondent's purpose to hide from London the real basis for his dismissal? I am impelled to the conclusion not only, as found above, that London had Butler's permission to fe London's account of the conversaton at Smith's home is essentially undisputed. Butler gave no version of the discussion, and about all that appears in Smith's testimony on the subject is a denial that London told him that he had been "discharged for union activities" or that the employee asked whether these had been "the cause of the ; discharge." Thetim- portant point_to bear in mind is that it is undisputed that Smith told London that the latter's "political reporting" was the cause of the discharge, for this differs from the rea- son given by Butler in his testimony i HERALD PUBLISHING COMPANY OF BELLFLOWER 93 take Thursday afternoons off, but that the justification advanced by Butler for the dismissal is no more than an afterthought. One of the Respondent's employees, Oney A. Fleener, had a conversation with Butler about an hour after London's discharge. Fleener and Butler gave differing versions of their talk. According to Fleener, he remarked to Butler that London had told him that he had been discharged because he belonged to the Guild. Describing Butler's reply, Fleener testified: "Mr. Butler said he (London) was discharged because he was working for the union instead of working for the news- paper. That is as near as I can remember although it isn't the exact quotes." From other testimony Fleener gave, it appears that he construed Butler's statement as meaning that London had been neglecting his duties by devoting time when he should have been working to organizational activities . (The question at issue here, however, is not the interpretation that Fleener placed on Butler's remarks but what Butler said.) Butler's version of the conversation is that Fleener asked him whether London had been dismissed and if the "union (had) anything to do with it"; that he replied, "Well, no, not as to the dismissal"; that Fleener then asked whether London was "mixed up with the union"; and that he (Butler) said, "I don't know anything about it other than I had some reports that he was soliciting membership in the office during the time that he should have been working." Fleener appeared to me to be, like Sheets, a disinterested witness. While he initially reflected a disposition to interpret Butler's remarks, rather than to quote Butler, when the matter was brought into focus by a request that he state what Butler had said, Fleener gave what is, in my judgment, his best objective recollec- tion of Butler's language . In contrast , Butler's testimony, taken as a whole, reflects, a substantial amount of evasiveness . Apart from my appraisal -of both witnesses, upon close examination , what Butler told London only about an hour earlier tends to support Fleener. It will be recalled that Butler told London: "All I can say is that you thought more of other things than you thought of the newspaper " Although couched in obscure terms, it is evident that what Butler meant was that London thought more of union activities ("other things") than he thought of the newspaper. Such an attitude is closely kindred in spirit to a statement that London "was discharged because he was working for the union instead of working for 'the newspaper." In the light of my impression of Fleener, and against the background of the whole record , including the evasive content of significant portions of Butl`er's testimony, I find that Butler made a statement to Fleener to that effect 29 If one looks at the record in the whole, the true motivation for London's discharge appears. Butler's statement to Fleener supports the conclusion that London was dis- charged because of his adherence to the Guild and his union activities . But there is far more than that in the record to guide one to decision . From the tenor of Lugoff's statements to Hickey within a period of about 2 weeks prior to the discharge, it is evident that the Respondent suspected that the North Long Beach office, London's place of employment , was a center of union activity, and that the Respondent was seeking to identify any employee so engaged and to dismiss him. The fact that 29 From the tenor of the Respondent's cross-examination of London, I gather an iinplica- tion by it that London was discharged because he solicited the membership of other em- ployees in the Guild during working time It is unnecessary to canvass details of Lon- don's cross-examination, but several matters may be noted First, the evidence does not establish that London neglected his duties for organizational work Second, the Respond- ent had no rule prohibiting discussion by its employees of union matters during working time. Employees engaged in "social talk" during business hours, and it is obvious that the Respondent did not prohibit such conversations Plainly, in that setting, it would be discriminatory to penalize London merely for solicitation of memberships during work- ing time Third, for the Respondent to claim that London was discharged because lie devoted working time to organizational activities would he but another shift in its posi- tion concerning the reason for the dismissal. Butler advanced no such claim. On the contrary, he testified in effect that he told Fleener that London's discharge was unrelated to the lattei's union activity Moreover, it is undisputed that Smith told London that the dismissal was based on the quality of the employee's "political reporting" The Re- spondent also makes the point that it had a rule prohibiting use of its telephone by em- ployees for personal business , and that London , who testified that he was unaware of the rule, used the telephone on a number of occasions to make appointments with other em- ployees in relation to organizational activities If the Respondent now contends that London was discharged for violation of the rule, that , too, is a shifting position, and reflects on the reliability of the claim that London was discharged for lawful cause If anything is clear, it is that London was not discharged for unauthorized use of the telephone I, 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD London was discharged so soon after this expression of the Respondent's attitude and intention is no mere coincidence. Supporting this conclusion is not only Butler's, remark to Fleener, but his statement to London only about an hour earlier that London was being dismissed because he "thought more about other things than . . of the paper." Standing alone, this statement is obscure, but in the light of the whole record, I am unable to view it as anything more than a veiled allusion to London's union activities and to the fact that he was being discharged because of them. What is more, strong indicia (perhaps the weightiest) of the real motivation for the dis- charge are to be found in the very fact that the Respondent has endeavored to conceal it. This policy of concealment is clear in the light of the evidence that Butler refused to give London an explanation for the discharge, instead referring him to Smith; that Smith then told London his dismissal was due to the quality of his "political report- ing"; and that Butler gave a different reason in his testimony, which, I am convinced, is now advanced post hoc, ergo propter hoc as a pretext for the dismissal. These tangled justifications, the one given by Smith to London, and the other by Butler at the hearing, compel the conclusion not only that the Respondent has cloaked the real motivation for the dismissal, but that the reason was London's adherence to the Guild and his participation in organizational activities on its behalf. Thus I find that in dis- charging London, the Respondent violated Section 8 (a) (1) and (3) of the Act. I also find that Butler's statement to Fleener violated Section 8 (a) (1) of the Act so D. The discharge of Ross, Hickey, and Farley Ross entered the Respondent's employ as city editor of the Lakewood edition on or about March 22, 1954. Butler was his supervisor. On July 12, 1954, Butler and Ross attended a meeting of the chamber of commerce in Lakewood. Shortly after they left the meeting, upon their return to the parking lot where they had left their respective cars, Butler engaged Ross in conversation about the Guild. Ross had applied for membership in the organization toward the end of April or the beginning of May, but he had not as yet been notified of his acceptance at the time Butler spoke to him. On the occasion in question, Butler said to Ross: "I hope you haven't been sucked into this Guild, have you?" Ross asked Butler, "Guild-what do you mean?" Butler replied that "it was a newspaper Guild," took a Guild membership application from his pocket, showed it to Ross, and said, "One of my boys was approached with this and of course, he brought it to me right away and I just wondered if you had been connected with it." Ross replied, "No, I guess I am too new. I guess they do not trust me." Butler then observed that he had always associated the Guild "with the Leftist movement," and particularly so since a certain individual had appeared on the picket line during a strike at a newspaper in Hunting- ton Park. (Ross' account of the conversation is undisputed.) Butler's characterization of the Guild as "Leftist" did not, of course, violate the Act, since the managing editor's observation in that regard is protected comment within the meaning of Section 8 (c). This is not true of what was in effect an inquiry by Butler of Ross whether the latter was a member of the Guild. The interrogation should not be viewed in isolated context, for it was part of a pattern of unfair labor practices during the month of July, reflecting a policy, evidenced by the attempted surveillance by Murray and Lugoff's statements to Hickey, of prying into the organi- zational sentiments of the employees and of endeavoring to identify members of the Guild in order to discharge them. Butler's interrogation of Ross violated Section 8 (a) (1) of the Act. Tuesday was the busiest day of the week for Ross. His situation in that regard was not significantly different from that of London. It was Ross' custom to carry his copy from the Lakewood to the Compton office at one point or another each Tuesday, and to remain in Compton until his work was completed, usually between 2 and 4 a. in. on Wednesday. Ross did not wear a jacket to work on Tuesday, August 17, 1954. His upper outer garment was a sport shirt of light buff color. Before he left for business that day he wore a Guild button which was pinned to the upper portion of the pocket located on 30 This conclusion is unaffected by the fact that Fleener construed Butler's statement as meaning that he had discharged London because the latter had neglected his duties to engage in union activities Even if one ignores the whole record, one may reasonably con- strue Butler's statement as meaning that London was dismissed because he was more devoted to the Union than to the newspaper. Be that as it may, Fleener's construction, is not controlling on the question of the legality of Butler's statement. One should look to the words themselves for an appraisal of their legality. In any event, they do not stand in isolated context, for they follow a pattern of inhibiting expressions by the Respondent's supervisors on the subject of union activities. HERALD PUBLISHING COMPANY OF BELLFLOWER 95 the left half of the front of his shirt. Judging by a button of the "same design and construction" in evidence, the one Ross wore was about an inch in diameter and bore an insignia and the name "The American Newspaper Guild" in black lettering on a white field. Ross arrived at the Lakewood office at approximately 10:30 a. in. that day and wore the button throughout the day at his work. The button was not hidden from view. This was the first time that Ross wore a Guild button while ar work. Butler came to the Lakewood office at about 4 or 4.30 p. in. on August 17. Ross was busy with some work at the time. Butler stood by for about 10 or 15 minutes and then asked Ross to step into the street. Both men went outside, and there Butler dis- charged Ross, assigning as the reason that Smith had directed that the payroll be cut for reasons of economy. Indicating the Guild button,31 Ross replied that both he and Butler knew that he was being dismissed because he was wearing it. Butler repeated that he had been told that an economy drive had gone into effect, and said that Ross could interpret that any way he wished. Ross asked Butler whether he should "finish out the rest of the edition" (which would require him to work that night and the early morning hours of Wednesday) and the managing editor said that that was a matter Ross should discuss with Smith 32 Ross telephoned Smith and asked the latter why he was being discharged Smith replied that an "economy drive" was under way, stemming from his insistence 3 or 4 weeks earlier "on a retrenchment"; that 3 or 4 persons had been laid off; that he had directed an additional retrenchment; that that was the reason Ross was being laid off; that he thought it only fair that Ross "should be let go first" because the latter "was the newest employee in the department"; and that Ross "would be re- hired if business warranted it." Ross asked Smith whether he should "finish up that edition," stating that Butler had told him to take the matter up with Smith. The latter told Ross to use his own judgment Ross finished his tasks, working, as had been his custom, into the early hours of Wednesday morning. On the following Friday or Saturday Ross was paid for the full week, although he had worked only part of it, and was given an additional week's pay. Ross' salary at the time of his dismissal was $75 per week. He has never been called back to work by the Respondent. Denying that he discharged Ross because the latter engaged in union activities, Butler testified in substance that he did not notice the union button until Ross directed his attention to it, as described above. Smith denied that he was aware at the time of Ross' discharge that the employee had engaged in union activities. Both Smith and Butler testified in substance that Ross was discharged as part of a program of reducing staff because of economic considerations. As this is the reason in effect given by the Respondent for the discharge of Hickey and Farley, repetition in analysis of evidence will be avoided by setting down some prefatory findings per- taining to Hickey and Farley prior to a discussion of the claim of economic neces- sity and of the question of the motivation for the discharge of the three employees. Hickey entered the Respondent's employ in March 1954. She worked in classi- fied advertising and was stationed in the Bellflower office. Lugoff was her supervisor. Brewer hired Farley on June 28, 1954. She was employed as a cashier and PBX operator in the Bellflower office. Farley does not appear to have had any immediate supervisor below the rank of Brewer, who at that time was general manager. Hickey wore a Guild button at work on the afternoon of August 16. Farley also had such a button in her possession but refrained from wearing it on that date. There was a union meeting at Hickey's house that night. Farley attended. The evidence suggests that there was some discussion at the meeting relating to the wear- ing of Guild buttons, but there is no concrete elaboration of the matter in the rec- ord. In any event, on August 17, both Hickey and Farley wore their respective buttons, while at work, throughout the day They were the only employees in the Bellflower office who did so. The evidence does not establish on what part of "Ross testified that he pointed to his button, according to Butler, Ross "pulled his shirt out so as to show it." As the button was not hidden and was worn in view on the upper left portion of Ross' chest, it does not quite appear why Ross should have to pull out his shirt "so as to show" the button. In any event, the subsidiary issue of the manner in which Ross indicated the button need not be resolved, since a resolution either way would not affect the conclusion reached with respect to the legality of the discharge a2 Both Butler and Ross described the conversation. Their versions are not in signifi- cant conflict. In resolving several variances, all of a minor nature, I have adopted the version which appears to me to be the more probable. For example, Butler testified that he told Ross to use his own judgment with respect to completion of his work for the day. However, it is undisputed that Ross called Smith and discussed the matter with the latter. This tends to corroborate Ross' testimony that Butler referred him to Smith. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her person Hickey wore the button, but it is reasonably inferable from the context of surrounding circumstances that the button was exposed to view. Farley wore her button exposed on her belt. At about 6 p. m. that day, following her daily custom, Hickey telephoned Lugoff, who was at the Compton office, in order to report her business volume for the day. Lugoff asked if she would remain at the Bellflower office until he came there, as he wished to talk to her. She replied that she was unable to do so, but offered to come to the Compton office later that night. Lugoff told her not to come, stating that he would see her in the morning. Lugoff came to the Bellflower office at about 9 a. m on August 18 and spoke to Hickey who was wearing a Guild button at the time. Farley, who was also wearing a union button, was in the vicinity, hearing only part of the conversation because she had duties which required her attention. Lugoff gave Hickey a paycheck covering her full salary for that week, although she had worked only part of the week, and told her that Smith had "ordered" her discharged as an economy measure. Hickey stated that her discharge was due to the fact that she was wearing a Guild button, and that she was not so "stupid" as to believe the reason given for her dismissal. Lugoff said that he was sorry that he had to discharge her, that her work had been satisfactory as far as he was concerned; that "there wasn't any personal feeling" but "was sorry if [Hickey] was mixed up in the Guild because that [sic] they would not be able to do anything" for her. Hickey expressed the view that she could not be discharged because of "Guild activities," and Lugoff replied that he had "had a situation like that some fifteen years ago" in connection with a Hollywood newspaper, that "nothing ever came of it," and that "they can't do anything for you " At one point or another while Lugoff was in the office, Farley told him that she was wearing a Guild button, and in effect asked him whether he was going to discharge her also. He replied that he was not her supervisor. After that he asked Farley to give him a line through the switchboard she operated. Hickey heard him mention Murray's name on the telephone, and say. "Come over. I am waiting for you." Murray arrived about 15 or 20 minutes later.33 Murray gave Farley a closing paycheck and stated in effect that she was being terminated for economic reasons. She replied that she did not believe that that was the case. Murray then asserted, "If economic measures doesn't hold up, we will go into the efficiency of your work." 34 In his testimony, Lugoff denied that he discharged Hickey for union activity or that he noticed her union button prior to her dismissal. He asserted that toward the end of the week preceding the discharge, Brewer directed him "to cut down one em- ployee" for reasons of economy; and that he selected Hickey because there had been friction between them According to Lugoff, the friction stemmed from re- sentment by Hickey on occasions when he criticized her work. Brewer testified that it was he who dismissed Farley He denied that he knew that she was interested in the Guild at the time of the selection, and that her union activity was the cause of her discharge. He stated that her dismissal was part of a reduction in force for reasons of economy, and that Farley was selected because she was junior in point of service to the other PBX operators. Brewer also testified that the reduction in staff had been under discussion by management officials for many months; and that either on August 12 or 13 Smith issued a "flat ultimatum" at a meeting of department heads to reduce the staff by at least 12 employees during the following week. (Smith testified that he instructed the department heads to re- duce the staff by "ten to twelve people.") Putting aside for the time being the question of the motivation for the dismissal of Ross, Hickey, and Farley, the Respondent's claim that there was a reduction in force for economic reasons finds support in undisputed testimony by Brewer that the Respondent laid off six other employees during the week in which Ross, Hickey, and Farley were dismissed 35 On the other hand, the evidence reflects a number of in- firmities in the Respondent's position that all of the employees discharged during the week in question were dismissed solely as the product of an "economy drive." .,- 33 Hickey's account of her conversation with Lugoit is undisputed Much of it is cor- • roborated by Farley Lugoff gave no version of the discussion i Parley's account of her conversation with Murray is undisputed Murray gave no version of the conversation ab In addition to naming the six, Brewer intimated that "a lot of them in the back shop" (employees in mechanical occupations) were laid off, but he stated that he was unable to give their names and his testimony on the subject is quite vague. It does not affect the results reached below, but it may be noted that Brewer's allusion to the "back shop',' em- ployees is too vague to support a finding that there was a reduction in the number of mechanical employees for economic reasons. HERALD PUBLISHING COMPANY OF BELLFLOWER' 97 The Respondent produced no records to show the state of its financial- condition at any time in 1954, and its position with respect to the scope and purpose of the staff reduction rests principally on the testimony of Brewer and Smith. According to Brewer, at the meeting of supervisory personnel, Smith left it to each department head to determine how many should be laid off in his department in order to achieve compliance with the directive that the staff be reduced by a "minimum of twelve." (In passing, it may be noted that Brewer could name only nine who were laid off, and that at a later point in his testimony, the "flat ultimatum" to reduce staff by a "minimum of twelve" became "a matter of cutting down nine to twelve in the personnel.") Brewer also testified that at the meeting the department heads had a discussion "as to which departments were to let so many go." He was then asked in effect what decision was reached on the subject of "how many were to be let go in each department," and he replied, "I cannot answer that. The record speaks for itself. . When the matter was pressed, he described the decision in this language: "One or more from each department; 1 will put it this way." At another point, asked whether,he knew at the time he left the meeting how many employees who were under his "direct supervision" he would have to dismiss, he gave no figure, avoiding the question, in my judgment, by saying that all personnel were "indirectly" under his supervision (although he had previously testified that he laid off the indi- viduals over whom he had "direct supervision"). Both in demeanor and in the text of his quoted testimony, Brewer was evasive, leaving a substantial doubt with me that the Respondent's program of reducing the staff was what he described it to be. This doubt is compounded by the fact that Brewer's account of the decision to reduce the staff does not quite jibe with testimony given by Butler. In contrast to Brewer's description of the alleged directive by Smith to reduce the staff by at least 12 persons, Butler, apparently referring to the same meeting, de- scribed the decision reached there as a "general conclusion that we would have to cut the payroll." Asked whether "anything specific" was decided in order to imple- ment the conclusion, Butler testified: "No, I don't recall that there was anything definite. I think Mr Smith called me later and said, 'Well, we will just have to do something about this.' " This also contrasts with a claim by Brewer that Smith issued a directive at the meeting that each department head reduce his staff by at least one employee. The sense of Butler's testimony is that it was the telephone call from Smith which crystallized for him the "general conclusion" reached at the meeting, and that it was the call which led to Ross ' termination . Brewer's testimony appears to go off in a different direction, for he stated that Butler acted "after he talked to me," testifying, also, "I was the supervisor who, made up the list on the 'instructions of Mr. Smith," thus implying that it was he, Brewer, who decided which employees should be discharged. (At a subsequent point, Brewer stated that he and Butler discussed the names of employees to be laid off, buf that Butler "chose the persons.") Significantly, also, although Lugoff is a department head, in referring to directions he received to reduce his staff, he mentioned no instructions by Smith at a meeting. Describing his alleged instructions, Lugoff testified that Brewer told him of an "economy measure" instituted by Smith, and directed him "to cut down one employee " The sum of the matter is that descriptions in the record of the set- ting for the decision to reduce staff take such different directions that one is unable to reach a definitive conclusion that there was in fact a meeting of department heads at which Smith issued a "flat ultimatum" to reduce the force by a specified number of employees for economic reasons alone, with a direction by Smith to each department head to lay off at least one employee. .Other features of the record contribute substantially to a doubt that the alleged program for staff reduction was what the Respondent contends it was. Except for an assertion by Smith that "profit and loss figures," which he stated he saw in August, reflected a loss of about $5,400 for the year, the claim of financial necessity rests on generalizations. 36 According to Smith,- the Respondent was "losing considerable money" as far back as March 1954; yet it granted wage increases to almost all the nonsupervisory editorial employees to a total of $6,500 per year on July 17, only about a month before Smith allegedly issued the "flat ultimatum." Moreover, in the light of Smith's testimony that the Respondent was losing a great deal of money early in the year, it seems strange that the Respondent did not undertake its alleged "economy drive" much sooner than the middle of August, but, on the contrary, in- creased its wage bill materially while it was allegedly suffering financial losses. For 39-The General Counsel objected to Smith's testimony concerning the $5,400 figure, pre- sumably on the ground that the profit and loss statement is the best evidence of its con- tents The objection came late, that is, after Smith had already testified to the figure, and I have permitted the testimony to remain 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons already stated, Smith's explanation that the wage increases and the staff re- duction did not come earlier in the year because he did not participate actively in the business strikes an implausible note. The sense of Smith's testimony is that both the increases and the reduction were the common product of his policy of securing efficiency by weeding out inefficient employees and paying higher wages to those re- tained. Yet the evidence falls far short of establishing, at least in any credible fashion , that such a policy was actually followed . For one thing, as already found, the purpose of the wage increases was to discourage union activity . For another, the credible evidence will not support a finding that relative efficiency was a factor in determining which employees should be laid off. Putting the cases of Ross, Hickey, and Farley aside , there is no evidence at all that the Respondent took efficiency into account in selecting for layoff the other six employees named by Brewer. If Brewer's account of the meeting is credible, each department head was left to his own devices in deciding how many in his depart- ment should be laid off, and upon what basis , as long as he dismissed at least one. So loose a directive strikes one as somewhat odd, for it does not appear to take into account some definite method of coordinating the personnel needs of the newspaper or of achieving a specific dollar volume of savings . (For all that appears in the testimony of Smith, Brewer, and Butler, there was no discussion at the alleged meet- ing of any specific amount of money to be saved by the reduction in staff.) More- over, when Ross spoke to Smith, the latter did not tell the employee that he had been selected on the basis of an appraisal of the relative efficiency of employees. Smith put the selection on the basis of seniority in the department (although it may be noted that another editorial employee, Donald Desfors, whose employment terminated more than 2 weeks after Ross was dismissed, had less seniority than Ross ). More- over, notwithstanding Lugoff's claim that he selected Hickey because of friction be- tween them, there is undisputed testimony that Lugoff complimented Hickey on her performance in July, and that when he dismissed her about a month later, he ex- pressed regret for his action , stating that her work had been satisfactory as far as he was concerned . In the face of this uncontroverted evidence , as well as other cir- cumstances to be discussed later, I find unpersuasive the claim advanced by Lugoff now that the quality of Hickey's performance was a factor in her selection . Another circumstance which results in a substantial doubt that the program of reducing the staff was what the Respondent claims it was is the fact that two editorial employees were hired soon after the reduction in force. One of these, Don (or Carl ) Widener, was hired on September 2, 1954, and the other, Earl Griswold, on October 11, 1954.37 (Widener's salary was $5 less, and that of Griswold $5 more, than the weekly wage paid Ross.) Moreover, on October 21, 1954, the Respondent advertised in its news- paper that it had an opening in its Lakewood office for a classified advertising solic- itor (Hickey's occupation ), setting forth inducements in pay and working hours and requesting applicants to telephone Lugoff. As there is no substantial evidence that the Respondent's financial condition was significantly better in October than the Respondent claims it was in August , one is led to wonder why the Respondent should seek to employ a classified advertising solicitor so soon after Hickey's discharge if she was in fact dismissed as an economy measure. Smith advanced no claim that the Respondent's financial position had improved to a point where it warranted the hiring of another solicitor . He did offer an explanation but his testimony in that re- gard took an illuminating turn. He explained that "a girl quit in the [Lakewood] office and we had to replace her." By any reasonable construction this means that a classified advertising solicitor had quit and that the advertisement sought a re- placement.38 Yet the evidence establishes (see General Counsel 's Exhibit No. 6, prepared by the Respondent itself ) that Hickey is the only classified advertising solicitor whose employment was terminated after August 1, 1954 . I am convinced that Smith became aware at one point of the untenable position in which his testimony had placed him, for when he was asked to give the name of the employee who had 87 According to Smith, he transferred an editorial employee from North Long Beach to another office because of unsatisfactory performance and hired Griswold for the North Long Beach office because Griswold had had considerable experience in working for a com- peting paper. Be that as it may, the fact is that the hiring of Widener and Griswold serves to weaken the claim that Smith had issued a directive that at least 12 persons be laid off for economic reasons. 38 This may be compared with Lugoff's claim that after Hickey 's discharge , he combined the Lakewood and Bellflower areas for the purposes of soliciting classified advertising, transferring the Lakewood solicitor to Bellflower , from which she served both sections, adding Hickey's former functions to her Lakewood duties. HERALD PUBLISHING COMPANY OF BELLFLOWER ` 99 quit, he displayed hostility toward the question, protesting that the "question carried a string to it so that there could be no answer." When the matter was pressed, still refraining from giving the name, he conceded, with reluctant demeanor, "that no classified ad girl quit." At a subsequent point, when asked again for the name, he stated that the first name of the girl who had left was Marion. In that connection, it may be noted that the Respondent's records reflect the employment of two persons bearing the first name Marion, one Marion Mattison, an editorial employee, and the other Marion Cronk, a cashier and PBX operator; and that, according to an exhibit (General Counsel's Exhibit No. 6) prepared by the Respondent itself, neither em- ployee has left the Respondent's employ. Be that as it may, it is testimony such as Smith gave which militates against acceptance of the Respondent's claim that the dismissal of Ross, Hickey, and Farley was but part of a program to reduce the staff solely for economic reasons. I think it unnecessary to dwell on other factors in the record which, in my judgment, run counter to a conclusion that the program for staff reduction was all that the Respondent claims. The fact that some employees,- in addition to Ross, Hickey, and Farley, were laid off during the week in question might warrant a belief that there was some program for a staff reduction based on economic reasons, but upon the basis of the record as a whole, particularly in the light of what has been said above and the circumstances surrounding the dismissal of Ross, Hickey, and Farley, I am unable to conclude that the program was in all material respects what the Respondent claims. Moreover, even if it be assumed that the Respondent decided, whether at a meeting of department heads or otherwise, to reduce its staff for reasons of economy, that would not be decisive on the issue of the legality of the discharge of Ross, Hickey, and Farley, for the question would still remain whether they were selected for the staff reduction because of their union activities Turning specifically to the motivation for the Ross discharge, Butler, as in other phases of his testimony, was evasive on the subject of his knowledge of Ross' mem- bership in the Guild. Questioned whether he had such knowledge prior to the dis- charge, Butler testified: "Well, at that time there were all sorts of rumors floating around. I don't know, other than I heard it some time, previous to that he [Ross] informed me that he not only was not a member of the union but that he had no use for the union and did not want to work under union conditions." What Butler meant by "all sorts of rumors" about Ross' membership in the Guild does not con- cretely appear, but it was evident to me that his response was guarded and something less than frank, following the pattern, described earlier, of avoiding commitment to a fact which might bear adversely on the Respondent's interest. I am also persuaded, in the light of all surrounding circumstances, that Butler's denial that he noticed Ross' button before the discharge lacks plausibility. For articles of its type, the button appears to be substantial in size. It was worn by Ross chest-high and fully exposed on a shirt of contrasting color. Obviously, the button was readily visible to Butler during the 10 or 15 minutes he spent in the Lakewood office before he asked Ross to step into the street. Under these circumstances, I think it implausible that Butler would not notice the button before he discharged Ross, particularly if it be borne in mind that Butler had previously interrogated Ross on the subject of the latter's attitude toward the Guild, an inquiry which was mani- festly part of a pattern of sensitivity by the Respondent toward participation by its employees in Guild activities. The sum of the matter is that the discharge of Ross on the very first day he wore the button at work was no mere coincidence. The dismissal has the earmarks of precipitate and hasty action spurred by the fact that Ross wore the button while at work. The discharge came on a Tuesday, and that day was the busiest of the week for Ross, so busy that he customarily "worked late into the night, as did other editorial employees, judging from London's similar custom. Why, it may be asked, did the Respondent select a point in the middle of the workweek, when Ross was busiest and had not yet completed his duties in connection with "make-up" day, to discharge the employee? The evidence yields no satisfactory answer to that question, unless it is that the Respondent wished to rid itself speedily of Ross because he had manifested an interest in the Guild. In so doing, the Respondent would be but carrying out the threat that Lugoff had made to Hickey about a month earlier to the effect that participation by an employee in Guild activities "would mean immediate dismissal." The precipitate nature of the discharge, and its under- lying reason, are illuminated by some evidence relating to Clark who, it will be recalled, is one of the Respondent's supervisors, and, at the time of Ross' discharge, had a supervisory status, with the title of manager, in the Lakewood office where Ross was stationed, although not Ross' supervisor. About a week or two after Ross' 387644-56-vol. 114-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination, Clark discussed the dismissal with Maxine Galt, who was then, but is no longer, in the Respondent's employ. Clark told Galt that Ross had worn a union button while at work, and then stated that he had telephoned Smith and told the latter that he "would not work with any union member," and that he would quit if Smith did not discharge Ross. (Galt's account of this conversation is undis- puted. Clark was not produced as a witness.) In view of Clark's status, I take his remarks to Galt as an admission, imputable to the Respondent, that he did in fact inform Smith of Ross' manifestation of interest in unionization , and threaten to quit unless Smith discharged Ross. As Ross wore the button only for 1 day, one may reasonably conclude that Clark called Smith at some point during the day, and told Smith of Ross' interest in unionization , and that this led to Butler 's appear- ance at the Lakewood office toward the end of the day and to Ross' discharge. Viewing the whole record, I find that the Respondent discharged Ross because the latter manifested an interest in the Guild ; and that, therefore, the Respondent violated Section 8 (a) (1) and (3) of the Act. I also find that the Respondent violated Section 8 (a) (1) of the Act as a result of Clark's statement to Galt that he had telephoned Smith and told the latter that he would not work with a union member and would quit if Smith did not discharge Ross. Hickey and Farley were, like Ross, discharged soon after they appeared at work wearing Guild buttons. But this is not the only common denominator of all three dismissals. Another is that the respective discharges of Hickey and Farley also have the earmarks of precipitate haste. In that connection, at least in the case of Hickey, the content and quality of testimony by Lugoff is revealing. As described earlier, Hickey was discharged on Wednesday morning, August 18. According to Lugoff's account, he received his instructions from Brewer to reduce the staff by one employee either on the preceding Friday or Saturday, August 13 or 14. Lugoff also testified that Brewer gave him a "deadline" of 1 week to effect the cut in staff; that he reached a decision to dismiss Hickey "over the week-end," that is, prior to Monday, August 16, that he was in the Bellflower office, where Hickey was stationed, on Monday; and that he spoke to her on the telephone on a number of occasions on Tuesday. Thus Lugoff's testimony would make it appear that, having reached a decision to discharge Hickey, he passed over opportunities to do so on Monday and Tuesday, waiting practically 2 full workdays before he made a move to effect the dismissal at almost 6 p. m. on Tuesday ; and that it was mere coincidence that the dismissal of both Hickey and Farley followed hard upon the fact that they both wore Guild buttons throughout the day on Tuesday. Lugoff gave an explanation for the timing of Hickey's dismissal, but the quality of his testimony in that regard detracts from the force of his explanation . Asserting at one point that she was paid for the full week, although discharged several days before the end of the workweek, in order to give her "time to look for another job," he later summarized his alleged reasons for the timing of the dismissal as follows: " .. I wanted to give her a break to look for another job but I did not want to hurt the company in the meantime. Monday and Tuesday are very busy days and if she had been let go on Monday, I would have had to put a new girl on that particular job, which would cut the [advertising] lineage and so forth." I do not rule out, as improbable, a claim that a firm which had been "losing considerable money" for much of the year and had just embarked on an "economy drive" would pay an employee a full' week's wages, upon her dismissal during the middle of the week, in order to facilitate her search for another position. Business practices in that regard would obviously depend upon a number of variables. However, there is reason to question Lugoff's assertion that a motivating factor in the delay in notifying Hickey of her dismissal was concern' over placing "a new girl" in Hickey's position on "very busy days." The fact is, as Lugoff conceded at a subsequent point, that Hickey's replace- ment was not at all "new . . on that particular job." The "new girl" had previous- ly worked in the Bellflower office before Hickey was hired, performing the very duties to which Hickey succeeded when she was hired. Upon Hickey's employment, her predecessor was transferred to another office; and upon Hickey's discharge, ac- cording to Lugoff, the same girl assumed Hickey's functions in addition to her own. This combination of duties in the replacement would make for plausibility in Lug- off's explanation that he deferred discharging Hickey until the "very busy days" had passed were it not for the course his testimony on the subject took. After- it de- veloped that the "new girl" was in fact a woman who was then in the Respondent's employ and had' been 'Hickey's predecessor in the Bellflower office, there was some shift in emphasis in Lugoff's explanation, for he testified that his primary reason for 'deferring the dismissal for 2 days was because he-"wanted to keep Gloria Hickey on HERALD PUBLISHING COMPANY, OF BELLFLOWER 101 and give her a break." It was evident to me, upon observation of Lugoff, that at one point he placed substantial emphasis on his alleged concern over the replace- ment of Hickey by a "new girl" on 2 busy days, but when further examination de- veloped that the replacement was actually an old hand , familiar with Hickey's duties, he attempted to minimize any adverse effect that that development might have upon the plausibility of his explanation by shifting away from his expression of concern over placing a "new girl on that particular job" to primary emphasis upon an ex- planation that he deferred Hickey's dismissal for 2 days because he "wanted to keep Gloria Hickey on and give her a break." But the quality of Lugoff's testimony concerning the timing of Hickey 's discharge is not the only reason for rejection of his explanation . In my judgment, it follows the pattern of afterthought justifications exemplified by Smith's untenable explanation of the reason for the advertisement of October 21. In the light of the whole record, a far more plausible explanation for the timing of Hickey's discharge, as well as that of Farley, is to be found in the conclusion that the Respondent moved expeditiously, as in the case of Ross, to discharge Hickey and Farley soon after they showed an in- terest in the Guild by wearing that organization's buttons. That conclusion is sup- ported by the undisputed evidence of what occurred on the morning when the women were discharged . On the very occasion when he dismissed Hickey , Lugoff expressed regret for his action and stated that her work had been satisfactory as far as he was concerned . (There is also undisputed evidence that he complimented Hickey for her work during the previous month .) In the face of this evidence, I am unable to accord any weight to the claim Lugoff advances now that he selected Hickey for the reduction in staff because there had been friction between them, nor to another claim he makes to the effect that, although Hickey's production did not enter into his de- cision "on a big scale," it played something of a role because he "figured" that the friction between them had been "hurting her production." Moreover, after Lugoff's initial explanation to Hickey that she was being discharged as an economy measure, there was practically tacit recognition by him, during later phases of their conversa- tion, that her dismissal was attributable to her interest in the Guild. Thus, after she expressed dissent from the reason he gave her and stated that she was being dis- charged because she was wearing a Guild button, he replied that he was sorry she "was mixed up in the Guild -because . . . they would not be able to do anything" for her. When she protested that she could not be discharged for Guild activities, he recalled that he had been involved in "a situation like that some fifteen years ago" in connection with another newspaper and that "nothing ever came of it." The circumstances of Farley's discharge add weight to the conclusion that both her'dismissal and that of Hickey were no more than the product of a hasty decision to carry out the policy expressed about a month earlier by Lugoff that participation by an employee in Guild activities would result in that individual's "immediate dis- missal.". Lugoff's call to Murray was no more than a part of the setting in which the former discharged Hickey. Why Lugoff should be "waiting" for Murray is nowhere explained by the Respondent, but the whole setting suggests a hastily formu- lated purpose to tie into one package the discharge of the two employees who had worn Guild buttons in the Bellflower office on the previous day. Murray's testimony concerning his role in the matter reflects vagueness. It should be borne in mind that he is a supervisor, with the title of sales manager. Yet according to his account, he acted as no more than a messenger in delivering Farley's check, coming from Compton, some 8 miles from Bellflower, to do so. He stated that he-was not "clear" as to who asked him to deliver the check, and, in that connection, his testimony took an odd turn at a later point, for when the subject of his recollection of who gave him the check was raised again, he testified: "Presumably the girl that types the checks up. It could have been one of the three girls." He also stated that it was at the request of one of the office girls that he delivered the check. It seems strange that a supervisor should run an errand for an unidentified office girl, but stranger yet that he should do so in a situation where, as Murray testified, "a regular messenger run" was available for delivery of the check, and that it "could have gone by that method." I believe that Murray was less than frank in his account of his knowledge of the circumstances of Farley's discharge. Significantly, on that score, when Farley expressed disbelief that she was being discharged for economic reasons, he replied, "If economic measures don't hold up, we will go into the efficiency of your work." This of itself indicates that Murray's role was something more than to run an errand for some office clerk, but apart from that, it is evident that Murray was the voice of management, and that when it spoke it evinced a disposition to search for reasons to cloak an unlawful motivation for Farley's dismissal. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Hickey's discharge, she applied for unemployment compensation to the California Department of Employment. She filled out a required form which in- cludes a space for the listing of the reasons for the termination of the applicant's employment. In the space so provided, she wrote the words, "Economy cut-back" as the reason. Hickey testified that she told the person who interviewed her at the State office that the reason given her by the Respondent was "an economic cutback," but that she "felt fairly certain" that she had been discharged because she had joined the Guild. She also testified that she inserted "Economy cut-back" in the form because she "thought it fair to use" the reason given her by the Respondent. The Respondent appears to regard the insertion in the form as compelling support for its position I am unable to agree. It seems to me that it is not unnatural that an employee, in filling out a required form for her unemployment compensation, should list as the reason for termination the one given to her by her employer, even if she disbelieves the reason. In any event, as in other cases of this type,39 one must appraise the motivation for the discharge on the basis of the whole record. So- considered, to accord compelling significance to the insertion in the form is to blind oneself to the substantial evidence in this record that the reason given Hickey for her discharge was untrue One other feature of the evidence requires mention. Hickey testified that she remained in the Bellflower office about 30 minutes after she was given her paycheck, that after Murray arrived and gave Farley her check, she (Hickey) gave her Guild button to an employee named Fitzgerald, and that the latter wore it in "plain view" while Lugoff was in the office. Murray testified that after he delivered the check he saw 3 employees wearing union buttons, but he later stated that he did not see 3 wearing them at the same time The evidence relating to Fitzgerald is quite frag- mentary. Murray's testimony does not even identify Fitzgerald by name as one whom he saw wearing a union button, and Lugoff's evidence contains no reference to her. The record neither describes Fitzgerald's duties nor identifies her immediate supervisor. There is no evidence of her employment history either before or after the discharge of Hickey and Farley 40 Put another way, one is unable to determine such relevant matters as the length of time Fitzgerald wore the button, whether she is still employed by the Respondent, whether she was discharged, or, for that matter, whether she left voluntarily at one point or another. Against that background, I am unable to view the fact that Fitzgerald wore a union button during a brief period while Hickey, Farley, Lugoff, and Murray were all together in the office as negating an inference that Hickey and Farley were discharged because they wore Guild buttons. In the light of the evidence as a whole, I find that Hickey and Farley were dis- charged because they manifested an interest in the Guild, and that by discharging them, the Respondent violated Section 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent 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 com- merce and the free flow of commerce V. THE REMEDY As it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designated to effectuate the policies of the Act As it has been found that the Respondent has interfered with, restrained, and coerced its employees in the exercise by them of rights guaranteed by Section 7 of the Act, it will be recommended that the Respondent cease and desist therefrom. 90 See, for example, Western Fishing Lines Company, 103 NLRB 1408, 1463, footnote 52, enfd. 215 F. 2d 453 (C A 9). 40 General Counsel's Exhibit No . 6 lists all editorial employees , cashiers , PBX operators, and classified advertising solicitors on the Respondent 's payroll after March 1, 1954 Also listed are all those in such classifications who were terminated after August 1, 1954. Fitz- gerald appears in neither list From the fact that she is not listed under the caption "Classified," in the exhibit it is probable that Lugoff was not her supervisor In any event, as General Counsel's Exhibit No 6 apparently does not set forth all of the Respondent's personnel classifications , in the absence of evidence establishing Fitzgerald 's classification, no conclusions can be drawn from the exhibit concerning Fitzgerald 's employment history after the discharge of Hickey and Farley HERALD PUBLISHING COMPANY OF BELLFLOWER 103 As it has been found that the Respondent has discriminated in regard to the tenure of employment of Sol London, Doris Farley, Raymond J. Ross, and Gloria Hickey, it will be recommended that the Respondent offer to them immediate and full rein- statement to their respective former or substantially equivalent positions 41 without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to the amount of wages such employee would have earned from the date of said employee's discharge, as found above, to the date of a proper offer of reinstatement to such employee. Loss of pay for each employee shall be computed on the basis of each separate quarter or portion thereof during the period from the date of discharge of such employee to the date of a proper offer of reinstatement. The quarterly periods shall begin with the respective first days of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which the employee normally would have earned in each such quarter or portion thereof, his or her net earnings,42 if any, in any other employment during that period. Earnings in one quarter shall have no effect upon the back-pay liability for any other quarter. The Respondent shall be required, upon reasonable request, to make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay and to the offer of reinstatement recommended herein. Upon the basis of the foregoing findings of fact, and upon the entire record in these proceedings, I make the following. CONCLUSIONS OF LAW 1. American Newspaper Guild, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing employees, as found above, in the exercise of rights guaranteed them by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (I) of the Act. 3. By discriminating in regard to the tenure of employment of Sol London, Doris Farley, Raymond J. Ross, and Gloria Hickey, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.1 41 In accordance with the Board's previous interpretation of the term, the expression "former or substantially equivalent position" means "former position whenever possible and if such position is no longer in existence, then to it substantially equivalent position " See The Chase National Bank of the City of New Fork, San Juan, Puerto Rico, Branch, 65 NLRB 827. 42The construction of "net earnings" in Crossett Lumber Company, 8 NLRB 440, is applicable here APPENDIX A 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 Rela- tions Act, we hereby notify our employees that: WE WILL NOT discourage membership in American Newspaper Guild, CIO, or any other labor organization, by discriminating in any manner in regard to the hire or tenure of employment, or any term or condition of employment of any of our employees. WE WILL offer to said Sol London, Doris Farley, Raymond J. Ross, and Gloria Hickey immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered as a result of our discrimination against such employees. WE WILL NOT engage, or attempt to engage, in surveillance of any meeting of American Newspaper Guild, CIO, or any other labor organization, which we believe, or have reason to believe, will be attended by any person in our employ; interrogate our employees concerning their membership in, or activi- 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties on behalf of, American Newspaper Guild, CIO, or any other labor organ- ization, in a manner constituting interference, restraint , or coercion in violation of Section 8 (a) (1) of the National Labor Relations Act; state to our em- ployees that we will discharge any employee because of his affiliation with, or activities on behalf of, American Newspaper Guild, CIO, or any other labor organization , or that any employee has been discharged because of any such affiliation or activity. WE WILL NOT In any other manner interfere with, restrain , or coerce our employees in the exercise of their nght to self-organization , to form , join, or assist any labor organization , to join or assist American Newspaper Guild, CIO, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of American News- paper Guild, CIO, or any other labor organization HERALD PUBLISHING COMPANY OF BELLFLOWER, 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. Tung-Sol Electric, Inc. and Triangle Radio Tubes, Inc. and United Electrical , Radio and Machine Workers of America, (UE), Local 433 and Local 433, Independent , Petitioners and International Union of Electrical, Radio & Machine Workers, CIO and International Brotherhood of Electrical Workers, AFL. Cases Nos. 2-RC-6817 and 2-RC-6907. September 16, 1955 DECISION AND ORDER DENYING MOTION Pursuant to the Decision and Direction of Election issued by the Board on September 29, 1954,1 an election and a runoff election were conducted in this proceeding. In the runoff election 1,241 votes were cast for Local 433, Independent, herein called Independent; 893 votes were cast for International Union of Electrical, Radio & Machine Workers, CIO, herein called the IUE-CIO; and 29 ballots were chal- lenged . On November 15, 1954, the IUE-CIO filed timely objections to conduct affecting the results of the runoff election. On April 1, 1955, following an investigation, the Regional Director issued his report on objections wherein he found that the IUE-CIO's objections did not raise substantial or material issues with respect to the conduct of the election, or to conduct affecting the results of the election. He therefore recommended that the objections be dismissed and that the Independent be certified. I Not reported In printed volumes of Board Decisions and Orders. 114 NLRB No. 22.