John Day Jackson

In the Matter Of JOHN DA Y JACKSON . THE C ARRINGTON PUBLISHING COMPANY, THE CARRINGTON COMPANY and NE\v HAS EN NEWSPAPER GUILD, AFFIi,I 1TED WI'i II AMERICAN NEw Sr SPCA GUILD Case No C-1918 -Pec?ded July 1 3,194f2 Jurisdiction . new spapet pnbl ish i ng industt N Unfair Labor Practices Intetfeieme Resfiuntt oold Coetumi watai ng eoalo%ee, against engaging in union actii itl , i efucnng to pet twit non-eniplovees to appeal oil behalt of union , questuiwing eniplolees concetntng membet,hip ni union accusing union and membeis of illegal actti ity D,scrtniniat,on chaiges of, disnnssed as to allegation that emplo^ei iefu-ed to make pay lane peunaneit bec.nise of union nnenibei Jiip , sustained a, to charge that ennplmen depitied of newspapet l -lute because of union meni- heishtp and actiltty and dischaigod because of such activty and because she gate testimony raider the Act Remedial Orders tennstatenront and hack pan otdeied Iestoiatton of p1i'ilege of having signed tea to t e scot nes and book i e'. news in new spapet in manner and to extent which would obtain absent untati labor practices, scope oidei issued against all i espondents who me totted to he emploN el s w ithui the nte.m- ing of the Act, aftumalive cider with ie,pect to discharged et iploie0 dnected solely to the iespondetit who emploj ed such pet son Mr Chizstopher IV Hoey, for the Board Mr Elisha Hanson, of Washington. D C , and Mr Ai non D Thomas, of New Haven, Conn , for the iesponclent I Mr Nelson Harris, of New Haven, Conn , and Mr Abi ahanr J Isser- m an, of Newark, N J, for the Guild Miss Marcia Hertzmaik, of counsel to the Board DECISION AND ORDER STATEMENT OF THE CASE Upon c11ai ges and amended charges dilly filed by New Haven N ens s- paper Guild, herein called the Guild, affiliated with Ameiican News- paper Guild, the National Labor Relations Board, herein called the Board, by the Regional Dnectot for the Second Region (New loik City), issued its complaint dated Match 24, 1941, against John Dav Jackson, The Cat i tngton Publishing Coii-ipany, and The Carrington 42NLRB,No83 356 JOHN DAY JACKSON '357 `Conipanv,'betem collectively called the respondents, alleging that the -respondent .John Day Jackson had engaged tin and was engaging In unfair labor practices affecting commerce vv ithm the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein :galled the Act, and that the re- spondents The Carrington Publishing Company and The Carrington Company had engaged in and w eie engaging nn unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act Copies of the complaint, accompanied by 'notice of hearing, were duly served upon the respondents and the Guild With respect to the unf.un labor pi actnces, the complaint alleged in. substance that from about March 15, 1940. the iespondents urged, per- suaded, and warned then employees to jefnam from aiding, becoming, on iemaning members of the Guild, expressed hostility toward the Guild, and threatened their employees witli dmschaige or other ie- prrsals if they aided the Guild or its membeis The complaint fur- thei alleged that the respondent Jackson disctinunated in respect to the terms and conditions of employment of Gladys Al Solomon by educing her pay on of ,about Apiil 1, 1940, and by depriving her of the pnrvilege of having signed aiticles in the Sunday edition of the New Haven Registei, said discrnnuiations being because of her Guild affiliation, and that the iespondent Jackson has since refused and refuses to iennstate Solomon to hei formes salary and piivileges On Apt rl 15, 1941, the iespondents filed ur answer denying the ma- teiial allegations of the complaint, denying the jurisdiction of the Board, and setting forth ceitam afflimative defenses At the same time the respondents filed a motion to dmsnuss the complaint upon the ground, inter aha, that they are not engaged in commerce, within the meaning of the Act Pit siiant to notice, a heating was held on May 5, 6, 13, and 14, 1941, at New Haven, Connecticut, before Samuel H Jaffee, the Trial Ex- amnner duly designated by the Chief Taal Examiner The Board, the respondents, and the Guild were represented by counsel and par- ticipated in the heating Full opportunity to be head, to examine and cross-examine witnesses, and to introduce evidence hearing upon the issues was afforded all parties At the beginning of the hear mg, the Ti man Examiner denied the pending motion of the respondents to dismiss the complaint and a motion by counsel for the Board to strike designated portions of the respondents' answer During the hearing the respondents, on two occasions, moved to dismiss the complaint on the ground that they had been denied due process because of certain statements published in periodicals in New Haven, Connecticut, prior to and following the 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issuance of the complaint in this case. The Trial Examiner denied the motions. At various times during the hearing, counsel for the re- spondents moved 'to dismiss; the motions were denied except as to a motion by The Carrington Company, ruling on which was reserved. At the conclusion of the hearing, the Boaid's motion to conform the pleadings to the proof was allowed without objection. During the course of the hearing the Trial Examiner made various rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prej- udicial errors were committed. The rulings are hereby affirmed. The respondents filed a brief with the Trial Examiner following the hearing. On June 21, 1941, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the parties, finding that the respondent Jackson had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act and that the respondents The Carrington Publishing Company and The Carrington Company had engaged in unfan labor practices within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act. He denied all pending motions of the respondents to dismiss the complaint The Trial Examiner's rulings are hereby affirmed. The respondents thereafter filed exceptions to the Intermediate Report and a brief in support of the exceptions. They also requested oral argument before the Board. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on August 14, 1941, in Washington, D C. The respondents and the Guild appeared by counsel and participated in the argument. The Board has considered the exceptions of the respond- ents and insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them On August 6, 1941, the Guild filed a further charge which was desig- nated as Case No II-C-3917. On September 16, 1941, the Board ordered that Case No. II-0-3917 be consolidated with and made a part of the prior case, No. C-1918, that the recoid in Case No. C-1918 be reopened, that a further hearing be held, and that the Regional Director be authorized to issue a supplemental complaint in the pro- ceeding Upon an amended charge by the Guild, filed on October 9, 1941, the Board issued a supplemental complaint, dated the same day, alleging that the respondent Jackson had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act. Copies of the supplemental complaint and notice of hear- ing were duly served upon all parties. Concerning the unfair labor practices, the supplemental complaint alleged in substance that the respondent Jackson discharged Gladys Solomon on August 2, 1941, I JOHN DAY JACKSON 359 because she joined or assisted the Guild and because she gave testi- mony at the Board hearing in May 1941. The respondents thereafter filed an answer to the supplemental complaint, denying the commis- sion of the -unfair labor practices therein alleged Pursuant to notice, a hearing was held on October 22'and 23, 1941, - at New Haven, Connecticut, before Martin Raphael, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Board-, the respondents, and the Guild were represented by counsel and partici- 41 pated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties At the conclusion of the Board's case the respondents moved to dismiss the supplemental complaint for failure of proof and also moved that it be dismissed as to The Carring- ton Publishing Company and The Carrington Company. The Trial Examiner reserved ruling on these motions. The motions were re- newed at the conclusion of the, hearing and the Trial Examiner re- -served ruling thereon. The motions are hereby denied.' The Trial Examiner granted a motion by counsel for the Board to conform the pleadings to the proof. During the course of the hearing the Trial Examiner made various rulings on other motions and on objections -to the admission of evidence The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitteed The rulings are hereby affirmed. On November 7, 1941, the Board issued an order directing that no Intermediate Report be issued in the further hearing, and, acting pur- suant to Article II, Section 37 (c), of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered the issuance of proposed findings of fact, proposed conclusions of law, and pro- posed order, and that, pursuant to Article II, Section 37, of said Rules and Regulations, the parties would have the right to file excep- tions and briefs within 30 days and to request oral argument within 20 days from the date of said proposed findings, conclusions, and order. The respondents and the Guild thereafter filed briefs,' on November 13 and 24 respectively, which the Board has considered. On March 27, 1942, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, copies of which were duly served upon all parties. Exceptions thereto were filed by the respondents on April 25, 1942, and by the Guild on April 27, 1942. The respondents also filed a brief in support of their exceptions and requested permission to argue orally before the Board. 1 In connection with the motion to dismiss as to The Carrington Publishing Company and The Carrington Company, it should be noted that the supplemental complaint alleges violations of the Act by the respondent John Day Jackson only and is issued against him alone Our order with respect to the allegations in the supplemental complaint will run against John Day Jackson only 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a heating for the purpose of oral argument was held before the Board on May 5, 1942, in Washington, D C The ie- spondents and the Guild appeared by counsel and participated in the argument The Board has considered the exceptions to the Pro- posed Finding of'Fact, Proposed Conclusions of Law, and Proposed Order and insofar as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them Upon the entii e record in the case, the Board mikes the following FINDINGS or FACT I THE BUSINESS OF TIIE ItESI'O\DEN'TS John Day Jackson is the owner and publisher of a duly newspaper in New Haven, Connecticut. known as the New Haven Register The Carrington Publishing Company is a Connecticut coipotatiou which owns and publishes at New Haven a daily newspaper known as the New Haven Joui real-Coulter , it is a subsidiar' of The Cait ulgtoli Company, also a Connecticut corporation ' Both corporations have their principal offices and places of business in New Haven in a build- ing owned by Jackson Of the 2,100 shares of preferred stock of The Carrington Publish- ing Company, The Gurington Company owns 1,989 shares, of the 2,675 shares of common, it owns 2,665 shares Of the 40 shales of preferred stock of The Caiiington Company, 1 stockholder owus 28 shares and the remainder is distributed among 4 other persons, of the 2,665 shares of common (which is votulg stock) Jackson owns 1,865 shales, and his wife owns the iemainclel Thus, Jackson, who owns, controls, and publishes the Register, is the owner of a large majority of the stock of another corporation owning and publishing the Journal-Courier Jackson thus controls both the Register and the Jouunal-Courier The evidence clearly indicates, and we find that this contl of i5 an active one, extending, inter' alia, to the labor policy of both newspapeis - The Register is published each weekday evening and Sunday morn- ing The Journal-Conn icr is a moi ung newspaper pubhshel every clay except Sunday They are the only daily newspapers published 2 The complaint alleged and the iespondenl5 ' answei admitted that The Caiiinton inbliahuig Lomnpiii is wholly owned ind controlled by The Carimgton Compin' , as indicated below, howesei , a small peicentage of the ahaies aie not owned by the holding companl 3U A L R IC N 11 blliani Randolph Item t, et at , 102 F (2d) 638 (C C A 9) enf g 1s mod Matte) of 11 ill ant Randolph Hearst, et (R , and American lcu,spaye) G'add Seattle Chapte,, 2 N I B B 330 , The Pies Co, Inc and The Gannett Company N N L R B , 118 F (2d) 937 (App D C ), enfg Afatter of The Press Go, Inc and The Gannett Com- pany and ii City Newspaper Guild of Albano, Tioy and Schenectady, N<W Ymk, 11 L It 11 610 JOHN DAY JACKSON 361 in New Haven During the year ending September 30, 1940, the aver- age daily circulation of the Registei was 69,619 copies, of which the out-of-State distribution was 232 Foi the same peiiod the Journal- Couriei had an average daily cnculation of 23,124 copies, of which 120 weie distributed outside the State During the calendar yeas 1940 the Register purchased $300,000 woi th ofnewsprnit and the Jour- n al-Courier $55,000 woi th, all fi om outside Connecticut Other sup- plies shipped from outside Connecticut were $7,000 worth of ink to the Register and $1,000 worth to the Journal-Courier, type metal val- ved at $2,000 to the Register° and at $1,000 to the Journal-Courier, pinnting-press pacts valued at $1,300 to the Register and at $400 to the Journal-Couirei, and $135 worth of steieotype-machine pacts to the Journal-Cotuiei Both the Register and the Journal-Courier are members of the Asso- ciated Piess Undei the chaitei and bylaws of the Associated Piess, its members axe under obligation pi omptly to furnish it all the news of then iespective districts Both the Registei and the Journal- Coniner submit mateiial to it in compliance with said obligation The main Connecticut office of the Associated Piess, known as the State Bureau, is in the Register building, it also has a night room in the Journal-Courier building In these two places it maintains telegraph punting machines "tied in" to its Boston cncuit, from which the ma- chines ieceive an average of 150,000 words every 24 hours On mi- poitaut stoiies, Registei and Jotnnal-Courier employees take the mate- rial fiom these machines as it comes in, on other stoiies Associated Piess messages are sent to the Register and Journal-Courier tele- graph desks On Connecticut items, the Associated Piess does not re- qun e that the Registei of Jouinal-Couuei wait for the stoiies to come from the machines, but supplies these papers with carbon copies of each story As to out-going mateiial on Connecticut items, the Asso- ciated Pies,, either covets the stories itself, or rewrites copy obtained from the Register of Journal-Courier When a story has national interest, the Associated Press requests and ieceives a carbon copy of the story From the Register or Jopmnal-Courier as it is turned in The evidence discloses that more than half of the non-advei tising matter appearing in the Register and Journal-Couriei, consisting of out-of- State news featui es, comics, and other syndicated material, conies from outside the State of Connecticut, Both papem s have the same national advertising representative, located in New York City All contracts fom advertising are, however, made in Connecticut During the year 1940 national advei tising con- stituted 15 1 percent of the total advertising mattem in the Register and 11 9 percent of that in the Journal-Courier 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED New Haven Newspaper Guild, a chapter of the American Newspaper Guild, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Register and the Journal-Courier. III. THE UNFAIR LABOR PRACTICES A Interference, restraint, and coercion Early in March 1940, several employees of the Register and of the Journal-Courier, particularly George D. Bronson and Richard W. Owen, advertising solicitors for the Journal-Courier, became interested in forming a local chapter of the American Newspaper Guild. Bron- son and Owen signed up a number of employees and, about the end of March, a meeting was held which was attended by employees of both newspapers One of the persons who attended was Raymond C. Kilduff, a copy desk man at thL Register. A day or two later, on April 1, according to Kilduff's uncontra- dicted testimony which we credit, as did the Trial Examiner, Managing Editor Roger Connolly, of the Register, told Kilduff that he under- stood that Kilduff was organizing the Guild in the plant, that he did not think Kilduff should do it, that the Guild would only bring trouble and "broken heads," and that he was sorry to hear about it. Kilduff replied that he had not been organizing the Guild, that he had attended the meeting and had been invited to join, that he had an application card in his pocket, and that if Connolly wanted to join he could also sign up. Connolly replied that he wanted to discourage the Guild movement as much as possible. On April 3 or 4, a meeting of the Guild was held at which Kilduff was elected temporary president, and Owen temporary secretary. These two, Bronson, and John Innes, another employee, constituted the Guild's bargaining committee. On Apri1,29, the Guild sent a letter to John Day Jackson requesting a conference "for the purpose of acquainting [him] with the formation of the local Guild organi- zation." About 9:30 a. m. on May 2, Bronson and Owen, on behalf of the Guild, went to see Jackson to ask for a conference to discuss alleged interference, restraint, and coercion by the respondents. No answer had yet been sent by Jackson to the Guild's letter of April 29. Jack- son told them that he was witting a letter granting an interview to the Guild committee, and told Bronson that he (Jackson) would see Bronson at the offices of the Journal-Courier later that morning. The same day, Jackson wrote to the Guild that he would meet its commit- JOHN DAY JACKSON 363 tee on May 6. About 11 a in, on May 2, Jackson, Journal-Cour- ier Advertising Manager Michael H Wren, and Bronson met at the Journal-Courier office. Jackson told Bronson, according to the lat- ter's uncontradicted testimony, that his work was suffering from his "outside activities," and that unless his production improved he would have to terminate his connection with the Journal-Courier Jackson then told Wren to give Bronson a "serious warning," and to instruct Bronson "to cease his outside activities because his production is fall- ing down and if he wishes to maintain his connection with the Journal- Courier he must cease his outside activities " We interpret Jackson's statement to mean that Bronson would have to cease his Guild activi- ties or he would lose his job. In accordance with Jackson's letter of May 2, a conference was held on May 6 at the offices of the Register. In addition to Innes, Kilduff, Owen, and Bronson, two non-employees, an official of the Labor Non- Partisan League and the secretary of the New Haven C I 0 Council, also attended on behalf of the Guild. Jackson immediately told the committee that he would not allow these two to remain since they were not his employees, and that he had not invited them to attend. He stated that they had no right to be there. After some discussion, it was agreed that the two should leave, and they did so Thereafter, most of the meeting was taken up by Jackson in complaining of the work of Owen and Kilduff and of certain conduct of Owen and Bron- son. To Owen, Jackson stated in substance that if his salary had been paid on a commission basis Owen would have earned considerably less than the salary paid him According to the undenied testimony of Bronson, which the Trial Examiner credited, as do we, Jackson "made some further iemarks to Mr Owen about disturbing the staffs of the newspapeis . . " Jackson told Kilduff that he had saved Kilduff's job for lum by interceding with Connolly in his behalf despite Kilduff's numerous mistakes in the past. Jackson also criti- cized Owen and Bionson, saying that they had "gone beyond the pale" in their approach to him on May 2; that they should have written him a letter.4 During the conversation Innes asked Jackson to order his department heads to cease interfering with and question- ing Guild members concerning Guild activity. Jackson denied that there had been any such conduct. Innes then asked that notices be posted warning against any such interference Jackson made no reply to this request, nor to Innes' question as to whether the em- ployees had a right to join the Guild. +In a letter dated September 12, 1040, requesting a conference for collective bargaining, the Guild stated, "The Guild wishes also to express the hope that since its' early days in April-when unfamiliarity with praci ices and procedures resulted in some minor breaches of negotiatoiy etiquette- its activities have sewed to you, as to it, sincere and dignified " .3C4 DECISIONS OF NATIONAL LABOR RELA1IONS BOARD About the middle of September. while one Alphonse Migliaro was being hued as a ieportei, Alfred J Sloane, managing editor of the Journal-Couiiet, asked hum, according to Migliato's uncontradicted testimony, if he was a member of any otgatnzation "which would in- terfeie with [his] work on the paper " Mighato assured him that lie was not Sloane then added that Miglrato would be approached "by ceitain people to join an organization." and that lie should "watch out for certain elements on the paper and in the city " Sloane said that lie was talking to Mighaio "as a father would talk to his son," and that he was tiving to tell hum these things "as candidly as possible Migiiaro indicated that he fully under stood what Sloane meant A e find, as did the Trial Examiner, that Sloane i efei red to the Guild and its members, and that Migliaio so understood him On September 26, Kilduff was called into John Day Jackson's office where, after ieprrmandmrg Kilduff for making too many errors in his work and stating that Kilduff- had too many outside activities, Jackson accused him of "illegal acts" in and outside the office When Kilduff asked what these acts were, Jackson replied that Kilduff knew, and in that connection mqu fed whether Kilduff had not had a con- ference with the printers, and said that he believed the Guild had made an agreement with the printers concerning the crossing of a picket line in case the Guild called a strike Kilduff denied the ex1st- ence of such an agi Bement On October 3 a Guild committee, consisting entnely of persons who were not employees of the respondents, met with Jackson pursuant to a request made by the Guild for a baigainmrg conference Jackson immediately announced that lie had expected to have his own em- ployees present at the meeting rather than "outsclets ' There was then some discussion touter mug alleged interference with Guild activi- ties, which Jackson denied had occurred The above recital discloses that the respondents have engaged in a persistent campaign to frustrate self-organization among then em- ployees At the outset of organizational activity, early in April 1940, Managing Editor Connolly advised Kilduff not to organize the Guild, warned him that the Guild would cause trouble, and stated that it was his purpose to disconiagge the Guild inovement as much as possible On May 2. a few how s a ftet Bronson and Owen had requested a con- Icience on behalf of the Guild; John Day Jackson undertook to i epii- mand Bronson for engaging in ' outside activities" to the alleged detri- ment of his work and instructed Bionson's immediate supeiioi Advertising Manager Wien, to give Bronson a "sec rows warning" to the effect that unless he ceased his Guild activities he would lose his job hour days later, on the occasion of the first meeting between John Day Jackson and a Guild Committee. Jackson i e f used to permit two i JOHN DAY JACKSON - 365 non-ennplo3 ees. who w ere appeal ing on behalf of the Guild, to remain After these "outsiders" left the meeting, Jackson consumed most of the remainder of the conference in complannng of the work and con- duct of three of the four remaining Guild representatives, all of whom were employees of the i espondents Jackson plainly intimated that Owen and Kilduff were in danger of losing their jobs and farther ax- pi essed resentment towwar d Ow en and Bi oiison because they had per son- ally asked him for a conference on May 2 In September, Sloane, man- ging editor of the Journal-Courier, questioned Migharo, a new em- ployee, with respect to Guild membership and, referring to the Guild and its members, w ainecl him to "watch out for certain ele nients on the paper and in the city " Later in Septenibei John Day Jackson accused Kilduff of engaging in "illegal acts," and sought to leaiii whether the Guild had enlisted the cooperation of the respondents' printers in the event the Guild called a stn ike When the Guild in October attempted to initiate negotiations with Jackson, the latter again objected to the presence of the Guild's repiesentatrves, on the ground that they were not employees The respondents, in effect, contend that the reprimands given Bron- son,_Owen and Kilduff were no moia than legitimate criticism war- ranted by reason of then deficiencies as employees Then qualifications as employees are not in issue here and we do not determine whether such r epi mr arcs were desei i ed However, the nature and timing of the reprimands show that they were intended to discourage Guild mem- bership and activity Thus, Jackson's warning to Bronson on May 2 followed immediately after Bronson had requested a conference and was not confined to Bionson's work, but included a proscription of all "outside activities" without regal cl to w hetlrer they chcl or did not inter fen e w itli Bi orison's w of k Tlrer e is no evidence that the quantity or quality of Bronson's work had in any way been impaired by his interest in the Guild It is apparent, and w e find, that Bronson's re- quest for a conference prompted the iepninands Again on May 6, when a Guild committee had its first conference with Jackson, the latter, after having succeeded iii barring the "outsiders," subjected the employee members of the committee to a barrage of criticism respecting their work and conduct We find that Jackson's reprimands on this occasion were calculated to impress upon the employees the fact that by engaging in Guild activity they were making then positions even more precarious We find that the w airings and ciiticisni directed at these employees on May 2 and 6, 1940, were designed to discourage membership inand activity on behalf of the Guild We find that the acts of the respondents, in warning employees against and, in effect, threatening them with discharge for engaging in Guild activity, in refusing to permit non-employees to appear at the 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conference of May 6, 1940, on behalf of the Guild and the members thereof, and in objecting to the presence of non-employees at the October 3 meeting,5 in questioning employees conceiving their mem- bership in the Guild, and in accusing the Guild and its members of illegal activity, constituted a persistent and consistent pattern of hos- tility to the Guild, and that by all the aforesaid acts the respondents, and each of them, have interfered with, iestrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination against Gladys M. Solomon The complaint alleged that the respondent John Day Jackson dis- criminated with respect to the terms and conditions of employment of Gladys M Solomon by reducing her pay on or about April 1, 1940, and by depriving her of the privilege of having signed articles in the Sunday editions of the New Haven Register from about Septem- ber 29, 1940. The supplemental complaint alleged that the respondent Jackson, on August 2, 1941, discharged Solomon because she joined or assisted the Guild, and because she gave testimony in the hearing conducted by the Board in May 1941. Solomon had been employed on the regular staff of the Sunday de- partment of the Register since 1936 and had done free-lance writing for it 2 years prior to that time. Her duties consisted of feature writ- ing, editing copy for the art and drama pages, doing "make-up" work, handling the "shore section" during the summer, and writing book re- views. Originally she wrote book reviews on her own time and re- ceived by voucher $5 a week therefor, in addition to her regular salary of $20 a week. In 1938 she was instructed to write such reviews as pait of her regular work on office time and was permitted to keep the review copies of books in lieu of the additional $5. Solomon had asked Managing Editor Connolly for a raise in pay several times. In February 1940, when she learned that Henry Jack- son, Sunday editor, was to be away for a 6-week vacation, she again re- quested an increase in pay. On February 17 Connolly told her that he had decided to give her an additional $7 50 a week by voucher while Henry Jackson was away and that he "would see what he could do about making it permanent when Mr. Jackson returned " Solomon We have frequently held that an employer, by refusing to deal with non-employees selected as representatives by his employees , or by otherwise limiting the designation of his employees' representatives , has thereby engaged in an unfair labor practice See Matter of Illinois Electric Porcelain Company and Illinois Electric Porcelain Workers of Macomb, Federal Labor Union No 21787, affiliated with the American Federation of Labor, 31 N L R B 101, footnote 29, Matter of Oregon Worsted Company and United Textile Workers of America, Local 2435, 1 N L R B 916, enf'd N L R B v Oregon Worsted Company, 96 F (2d) 193 (C C A 9) , Matter of Wallace Manufacturing Company, Ino and Local 2237, United Textile Workers of America, 2 N L R B 1081, enf'd N L R B v. fVallace Mfg. Co, Inc, 95 F ( 2d) 818 (C C A 4). JOHN DAY JACKSON 367 received the additional $7 50 a week for the next 6 weeks: In the mean- time the Guild was organized and Solomon became a member on April 1. Jackson returned to the office shortly thereafter. On April 6, Solomon received only $20, and when she asked Connolly for a voucher for the additional sum he replied, according to Solomon's uncontradicted testimony which the Trial Examiner credited, as do we, that he could not give her a raise, "that he had the good of his entire organization to think of, that several newspapers had gotten into trouble because they had given raises to people when the Guild was being oigamzed in their papers" Solomon replied, "The raise you promised vas before there was any talk of the Guild," to which Connolly answered, "Yes, but there has been talk and you have listened." The Trial Examiner found that Solomon would have continued to received the increase in pay had her Guild membership and activity not intervened We do not agree with this finding. We are unable to find that she would have received the extra compensation after Jack-` son's return, even if she had not joined the Guild. The $7 50 was paid her by special voucher, which indicated that it was not part of her regular salary, nor to be considered as an increase, but merely as extra pay for the period of Jackson's absence, during which Solomon was to perform more work than usual. Connolly had told Solomon that he would "see what he could do about making it permanent when Mr. Jackson returned" but had not promised that she would receive a raise. In view of these circumstances, we do not -find that, had Solomon not joined the Guild, she would have continued to receive $7.50 per week more than her previous salary after Jackson's return to the office. Solomon's "by-line" ordinarily appeared on book reviews, as well as on feature articles which she wrote. On September 12, 1940, she sent to John Day Jackson a letter from the Guild, signed by her as secre- tary, requesting that the respondents bargain with the Guild. On September 29, 1940, her by-line did not appear on book reviews in the Register and Henry Jackson informed her that she was no longer to write reviews, that the Register was going to use syndicated material thereafter. No reason for the change was given Solomon. She wrote only three or four book reviews thereafter, upon special assignment. Her name continued to appear on feature stories until November 17, 1940, after which date it was no longer used in connection with any- thing she wrote. The Trial Examiner found that the respondent Jack- son discriminated in respect to the terms and conditions of Solomon's employment by depriving her of the privilege of having signed ar- ticles in the Sunday edition of the Register because of her Guild affiliation. The respondent Jackson offered no witnesses at the first hearing to explain the above change of policy, but introduced in evidence certain 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Solomon's book reviews and reviews of the same books taken from Sunday editions of The New York Times of prior dates Jackson's position, as it appeared from cross-exannnation of Solomon and from the respondents' exceptions and brief, is that Solomon had appro- priated copyrighted material from The New York Times and other publications in writing her book reviews, and that Jackson therefore decided to use syndicated book reviews instead of having Solomon write them No reason was given for depriving her of her by-line on feature stories Solomon testified without contradiction that when she began w iit- ing book reviews she was told by hey superiors "to do not too much on the plot, but a little aiticle to try to interest the readers in getting the book " She also testified that because of the amount of work she was required to perform she was not always able to read the books thor- oughly and completely; that she sometimes read material in The New York Times and other newspapers and periodicals while writing her reviews in order to secure certain facts as to plot and characters; but that she exercised independent judgment in writing her opinions of the books She denied that she ever copied a review verbatim A comparison of Solomon's reviews with those she is alleged to have "pirated" shows that the reviews are substantially different and that only occasional phrases are similar From her uncontradicted testi- mony as to her duties, which consisted of feature writing, editing copy, doing make-up work, and handling a shore section during the summer months, as well as wrrtrng four to eight reviews a week, it is clear that she lacked the time necessary for a more thorough treat- ment of this task In addition, Solomon testified without contradic- tion that she had for many years utilized reviews from other news- papers in writing hers and insisted that'the editors of the Register were aware of the practice because of the proximity of then desks to hers Although she admitted that she had not informed them of the practice it is apparent from the record that the respondent Jackson was aware of it for some time prior to the date upon which lie dis- continued the use of leer reviews However, he attempted to imply that such was not the case. The respondents stated in their brief No publisher upon learning of such illegal and unethical con- duct as Miss Solomon admitted on the stand could afford to place himself in further jeopardy by permitting her continued employ- ment if it must result in continued risk of violation of the Copy- right Act and continued risk of damage to the paper's reputation through its unwitting publication of purloined material, sub- mitted to it by one of its employees as that employee's work The wonder is that respondent John Day Jackson did not cause her discharge on the spot when lie learned of her illegal and unethical conduct I JOHN DAY JACKSON 369, The above quotation from the respondents ' brief is particulaily per- tment in view of evidence discussed hereinafter , which was brought out during the second hearing in this case upon the allegation in the supplemental complaint that Solomon's discharge on August 2, 1941; vas in violation of the Act Since Jackson contended also that Solo- mon was discharged because of her appropriation of material as dis- cussed above, we shall consider the deprivation of her by-lie in connection with the issue of her discharge Solomon was discharged on Augnst-2,1941, by letter reading , in part,, as follows. You are discharged because in the colnse of your employment you have deliberately and bodily appropriated in substantial measure many words and phrases of copyrighted book review material from The New York Times, and have used it as your own in book reviews signed by you which appeared in The Sunday Registei You have publicly admitted that you did this You have thereby not only subjected this newspaper to damage to its reputation for integrity among its readers, but you have also left it vulnerable to possible damage suits for large sums of money for violation of the copyright laws. Witnesses for the respondent Jackson at the second hearing testified without contradiction substantially as follows In the fall of 1939 , Henry Jackson, Sunday editor of the Register, commenced a study of the book reviews in the Register because of his desne to enlarge the space allotted thereto and with a view to publish- ing more reviews He considered Solomon's work to see if it merited a return to the system followed in previous years whereby she received an additional $5 voucher for book-review work Jackson noticed, during the course of his study , that Solomon's book reviews were of highei calibre than her feature witting and he suspected that she was using the jackets or fly leaves of the books in nwritmg reviews An inspection of numerous books for several months thereafter disclosed that this was not the case, nor was there any similarity between Solo- mon's reviews and those of the New York Herald-Tnbune and The Hartford Times, which Jackson also checked In January 1940, how- ever , Jackson noticed a similarity between a review Solomon had written and one which lie had read in The New York Times several weeks earlier He could not recall, at the hearing, the name of the, book in question or its subject matter, and he testified that he was not then able to secure a copy of The New York Tines by which to make acomparison Since he was leaving on a vacation on February 12,- and since, according to his testimony, "if it was being done then, it probably would continue," he made no further attempt to verify his 472814-42--,of 42--24 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belief However, Jackson testified that in January 1940 he concluded that his suspicions regarding Solomon were "absolutely sound." Upon Jackson's return to the office, about April 1, he learned of the formation of the Guild during his absence During May and June 1940, Henry Jackson collected copies of The New York Times and compared the book reviews with those written by Solomon. On June 27 when, according to his testimony, he "had collected, evidence," Henry Jackson for the first time reported to anyone the similarity between Solomon's work and that in The New York Times. At that time he told Richard Jackson, his brother and assistant to Publisher John Day Jackson, of his discovery. Richard told Henry not to mention, the fact to anyone, including Solomon, and to arrange his clippings in "intelligible" form. On the following day Richard in- formed John Day Jackson of the matter but the latter was leaving for a vacation and replied that he would consider it upon his return. Richard also told Connolly, who said that Solomon should be dis- charged Richard replied that the management considered the matter important, that Henry had assembled conclusive proof against Solo- mon, but that the management was not yet ready to make a decision as to what should be done. Although Connolly ordinarily had author- ity to discharge employees, this power had, at that time, been assumed entirely by John Day Jackson because of the labor situation, and no action was then taken. Solomon was not informed of what was occur- ring and continued to perform her work as usual In the meantime, on May 13, 1940, the Guild-had filed charges with the Board alleging that the respondents were interfering with, re- straining, and coercing their employees, and had discriminatorily dis- charged an employee not involved herein. Maxwell Feller, a Field Examiner for the Board, who was investigating these charges, con- ferred with John Day Jackson and Richard Jackson on July 10, 1940. To a,suggestion by Feller, during this conference, that a consent elec- tion be held,-John Day Jackson replied that there were two other em- ployees, whom he did not name, in addition to the one named in the charges, whose conduct warranted dismissal. Feller thereupon re- quested that these employees not be discharged because such action would "complicate the case." During the following months Board agents met with the respondents' officers on several occasions in an effort to settle the pending charges. On September 12, Solomon signed a letter for the Guild as secretary thereof ; and 2 weeks later the re- spondent Jackson, after knowing for 9 months the method Solomon used to write reviews, changed his policy and relieved Solomon of her book-review duties On December 2, 1940, at a meeting in the office of the Regional Di- rector, the respondents were informed for the first time of the spe- JOHN DAY JACKSON 371 cific charges agamst them and Solomon's name was mentioned as one of the persons who claimed to have been intimidated. Richard Jack- son thereupon stated that -Solomon was "worthy of dismissal," that she would have been discharged previously had it not been for Feller's request on July 10, and that the respondents did not want to act until they "knew where [they] stood before these other proceedings before the Board" The first formal charge nivolving•Solomon-was filed by the Guild on January 29, 1941 On Febiuary 21, 1941, the final con- ference between the Regional Attorney, John Day Jackson, Richard Jackson, and Hanson, the respondents' attorney, was held. Attempts made by the Regional Attorney for the Board to settle the case proved unsuccessful and John Day Jackson stated again that Solomon would be discharged. He testified at the second hearing that at the con- clusion of this meeting he knew that, there was no further possibility' of settling the pending charges and that the Board intended to pro- ceed with the case. The first hearing in this case occurred on May 5-14,1941. Richard Jackson testified that in about the middle of July 1941 both of the respondents' attorneys, John Day Jackson, and Richard Jack- son were, for the first time, in unanimous agreement that "the time had arrived to make the dismissal" of Solomon As stated above, she was notified on August 2, 1941, that she was discharged The unconti adicted testimony of the respondents' witnesses demon- strates that the respondent Jackson neither deprived Solomon of her by-line nor discharged her for the reason given by him. As we have found above, a comparison of the book reviews written by Solomon with those in evidence from other newspapers shows that her reviews are substantially different from those from which she is alleged to have appropriated material. Henry Jackson, Sunday editor of the Register, knew in January 1940, according to his own testimony at the second hearing, that Solomon was following a practice which, according to the respondents, made them liable to law suits for un- lawfully using copyrighted material. But, since Henry Jackson was going on vacation and since "if it was being done then, it probably would continue," he-did nothing about it Apparently he did not consider the matter serious enough to call to Solomon's attention. Upon his return from vacation, and after learning of the organization of the Guild and Solomon's membership therein, he spent about 2 months carefully gathering "evidence" against Solomon who, unaware of the fact that her conduct was considered improper by her editor, continued to perform her work as usual. We do not believe that Henry Jackson would have subjected the publisher to the added risk during this period had he then been as concerned over the possibility of law suits as the respondent Jackson appeared to be at the time of 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing in this case. Moreover, when Richard Jackson was finally informed of Solomon's acts, he told Henry not to say anything to anyone, including Solomon, about the matter No ieason is given for this secrecy, when, if the situation were as grave as the respondents claimed, the obvious reaction of any employer would have been to wain the employee against a continuation of the offending practice It will be recalled that it was not until 3 months later, on September 29, 1940, that Solomon's by-line was removed and she was told to dis continue the book-review work And even then, she was not informed of the reason for the change in policy It is obvious that John Day Jackson was not greatly concerned with'the ethics of effect of Solo- mon's alleged "piracy" for a period of 9 months after it \i as discov- ered, and that the collection of evidence against her was for the pur- pose of supplying a defense if it should become necessai y to have one As noted above, the respondents stated in their beef filed following the first hearing in this case, "No publisher, upon learning of such illegal and unethical conduct . . could afford to place himself in fuither° jeopardy .. " It appears from the testimony of the witnesses at the second hearing, however, that the respondent Jackson's alleged feai. had no substance in fact and that he did not object to placing himself "in further jeopardy," since he waited 9 months to remove the cause of such risk - The respondent Jackson's defense as to the discharge of Solomon is equally without merit when viewed in the light of the entice record He contended that he would have discharged Solomon sooner than lie did had it not been'for the request of Field Examrnei Feller Fellei's request was made on July 10, 1940 Almost 6 months before that date Henry Jackson was convinced that his suspicions were sound, and nothing was done Moreover, Jackson offered no explanation for the delay in ridding himself of an allegedly unsatisfactory employee dur- ing the 5 months following February 21, 1941, when, according to his own testimony, he knew that there was no further chance of settling the pending'charges, and that lie no longer needed to delay his action to know where he "stood [in] these other proceedings before the Board " Obviously, Jackson still did not think that Solomon's actions required her dismissal However, after she had testified-at the Board hearing in May 1941, during which testimony she admitted that she used reviews from other sources in writing her book Ieviews, Jackson finally discharged her The letter discharging Solomon, after setting forth the alleged reason for her dismissal, states, "You have publicly admitted that you did this " In view of the fact that Jackson had known for months of her procedure in writing reviews and had not discharged her, we conclude that it was her act of testifying at the hearing which finally caused Jackson to dismiss Solomon. JOHN DAY JACKSON 373 We are coin inced and find that Gladys M Solomon was deprived ,of hei by -line because of her, membership and activity in the Guild, and that she was thereafter discllaiged because . of hei membership and activity in the Guild, and because she gave testimony under the Act The respondent John Day Jackson theieby discrinnnated in repaid to the hue and tenure and terms and conditions of hei employment and by such condhict intei fei ed with, iestiained, and coerced his employees in the exeiclse of the tights guaranteed in Section 7 of the Act IV THE FFFE(,T OF `1 HE UNFAIR LABOR PRACTICES UPON COIIMERGE We find that the activities of the respondents described in Section III above, occurs ing in connection with the operations of the respond- ents clesci ibed in Section I above, have a close, intimate, andFsubstantial i elation to ti ale, traffic, and commerce among the several States, and tend to lead to labor disputes buidenuig and obstructing commerce and the flee flop- of commerce V THE REMEDY We have found that the iespondents have engaged in and are en- gaging in ceitain unfair labor piactices We shall order that they cease and desist therefrom, and that they take certain affirmative action which we find necessary to effectuate the policies of the Act We have found that the iespondent John Day Jackson, by depriving Gladys N1 Solomon of the privilege of attaching her name to articles and book i eI sews in the Sunday editions of the New Haven Register because site joined and assisted the Guild, and by discharging her on August 2. 1941, because she joined and assisted the Guild and gave testimony under the Act, has disciimnlatecl in regard to her hire and tenure and ter ins and conditions of employment WTTe shall oiler the iespondeiit Jackson to offer hei ieinstatement to her formes or sub- stantially equivalent emplovinent without piejudice to her seniority anti other i iglus and pi ivileges and to make her whole foi any loss of pay she may have suffei ed by reason of the discrimination against her by payment to her of a sum of money equal to the amount she would have earned as w ages hom the date of hen dischaige to the date of the offei of Ieinstrtenent, less her net earnings e dining said period; and that she be per hutted to use lrei by-lute on feature stories and on any 'BS "net e,unia,,,' is 1110, 1111 earnings 1e,s expenses such as foi trui^poitition, room, quit boas d, incur ! l d III an empiov ee in connection with obtaining woil, and w of Slug else- w'iele thaa for the iespondent, which would not halve been mcuiied but foi his unlawful clschRi,e 1,10 tho umwryuerit necessity of his seeking employment elsewhere See 11atte? or G9 osscit T,umbei Compauu and United Its otheihood of Car pentei c and Ianrei c of I mei ica, Lumber and Sgnonnill I6ovl, cic Union I ocal 2;e0 S N I, It B 440 Moores ierened foi. w m 5 per ton red upmi i' edei al SI ato county nnuuapnl of other w oik-i eiief pi oleetc shall be consideied as eirnmgs Sep Republic Stecl Gbipoialion v it L R R 311 U S 7 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD book reviews which she may be assigned to write in the manner and to the extent which would obtain absent the unfair labor practices 7 So fax as a remedy against The Carrington Company is concerned, the following facts are pertinent • This respondent almost wholly owns, and wholly controls, The Carrington Publishing Company which pub- lishes the Journal-Couiier The respondent Jackson's owneiship and domination of both is practically complete. The holding company, through Jackson dominates and controls the operating company, and the domination and control is an active one and includes all major policies including labor policy Jackson, in turn, was most prominent in the commission of the unfair labor practices herein found The "cease and desist" order hereinafter made thus properly includes all the respondents They were all all "employers" within the meaning of the Act. But neither corporation employed Solomon, and the order below as to affirmative action concerning her is there directed solely to the respondent Jackson who owned, published, and directed the Reg- ister. Moreover, the unfair labor practices concerning Solomon, within the meaning of Section 8 (3) and (4) of the Act, are alleged in the complaint and supplemental complaint to be unfair labor prac- tices only of the respondent Jackson. Upon the basis of the for egoing findings of fact and upon the entire record in the case, the Board makes the following CONCLUSIONS OF LAW 1. New Haven Newspaper Guild, a chapter of the American Ne-,,%s- paper Guild, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 2 By discriminating in regard to the hire and tenure and terms and conditions of employment of Gladys M. Solomon, thereby discouraging membership in the Guild, the iespondent John Day Jackson has en- gaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. - 3. By dischaiging Gladys M Solomon because she gave testimony under the Act, the respondent John Day Jackson has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 4. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7 Nothing in our Order, however, shall require the respondent Jackson to engage in any practices which he deems unethical In fully restoring Solomon to her employment JOHN DAY JACKSON 375 6 The respondent John Day Jackson, by refusing after April 6, 1940, to continue the payment of an additional $7 50 per week to Gladys M. Solomon, has not engaged in unfair labor practices within the mean- ing of Section 8 (3) of the Act ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders as follows A. That the respondents, The Carrington Publishing Company and The Carrington Company, New Haven, Connecticut, their officers, agents, successors, and assigns, shall - 1. Cease and desist from interfering with, restraining, or coercing their employees in the eiercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act 2 Take the following affirmative action which the Board finds will effectuate the policies of the Act (a) Post immediately in conspicuous places throughout the offices of the New Haven Journal-Courier, and maintain for a period of.-at least sixty (60) consecutive days from the date of posting, notices to the employees of the Journal-Courier stating that they will not engage in the conduct from which they are ordered to cease and desist in para- graph Al of this Order; (b) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps they have taken to comply herewith. B. That the respondent John Day Jackson, New Haven, Connecti- cut, and his agents, successors, and assigns shall: 1. Cease and desist from (a) Discouraging membership in New Haven Newspaper Guild, affiliated with American Newspaper Guild, or any other labor organi- zation of his employees by discriminating against his employees in regard to hire and tenure and terms and conditions of employment; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Gladys M Solomon mrmechate`"and full ienistatenient to her former or substantially equivalent position without piejudice to her seniority and other Lights and privileges, (b) Restore to Gladys M Solomon the pi ivilege of haA ing signed feature stories and book reviews in Sunday editions of the NeNi Haven Register in the manner and to the extent indicated in the section entitled "The remedy" above, (c) Make whole Gladys M Solomon for any loss she may have suf- fered by season of the respondent Jackson's disci nnination against her by payment to her of a sung equal to the amount which she normally would have earned as wages during the period fronr the date of her discharge to the date of the offer of iemstatement, less lie] net earn- ings during said period , (d) Post immediately in conspicuous places thi oughout the ofhces of the New Haven Registei, and maintain tot a period of at least sixty (60) consecutive clays fiom the date of said post.ng, notices to his employees stating (1) that the iespondent Jackson will not engage in the conduct ftom which he is of dei ed to cease and desist in paiagi aplis B 1 (a) and (b) of this Order, (2) that the Iespondent Jackson will take the affiunative action set forth in pai agiaphs B 2 (a), (b), and (c) of this Order , and (3) that the Iespondent Jackson's employees are free to become oI remain members of Nevi Haven Newcpapet Guild, afh11- ated with American New spapei Guild, and that the respondent Jackson \w ill not discriminate against any employee because of Dienibem slop or activity in that of g nnzation , (e) Notify the Regional Duectoi foi the Second Region iii witting, within ten (10) d,iys from the date of this Oidei, what steps the Iespondent Jackson has taken to comply herewith AND IT IS FURTHER OIIDLIM'D that the cc;-uplaint, uisofai as it alleges that the Iespondent, John Day Jackson, by Ieducing the pay of Gladys M Solomon on of about Api it 1, 1940, engaged in unfali labor pt actices within the meaning of Section 8 (3) of the Act, be, and it lieteby is, dismissed i