The Afro-American Co.

In the Matter of THE AFRO-AMERICAN COMPANY and BALTIMORE NEWSPAPER GUILD AND OFFICE AND PROFESSIONAL WORKERS LOCAL No. 271 Case No. C-904.-Decided March 16, 1939 Newspaper Publishing Industry-Settlement : stipulation providing for com- pliance with Act, back pay in specified amounts to two employees not desiring reinstatement, and dismissal of complaint as to one employee-Order: entered on stipulation. Mr. Jacob Blum, Mr. Sarmuel M. Spencer, and Mr. Robert W. Knadler, for the Board. Mr. Harry 0. Levin, of Baltimore, Md., for the respondent. Mr. William S. Wilson, Jr., of Baltimore, Md., for the Guild. Mr. Victor A. Pascal, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the Baltimore Newspaper Guild, herein called the Guild, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Fifth Region (Baltimore, Maryland), issued a complaint dated February 16, 1938, against The Afro-American Company, Baltimore, Maryland, herein called the respondent, 'alleging that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Guild. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance: (1) that the respond- ent discharged William P. Milner, Wilbur 0. Stewart, and Constance 1 This follows the title of the case as set forth in the amended complaint , although Office and Professional Workers Local No. 27 does not appear in the title of the case on the other papers filed in the proceeding. 11 N. L. R. B., No. 107. 1185 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. H. Daniel,- and notified George B. Murphy, Jr. that his services would be terminated on March 1, 1938, because each of said employees had joined and assisted the Guild and also Office and Professional Workers Local No. 27; and (2) that by the above and other acts and conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 26, 1938, the respondent filed an answer deny- ing that it had engaged in the unfair labor practices alleged in the complaint. Pursuant to the notice, a hearing was held at Baltimore, Mary- land, on February 28, March 1, 2, 4, and 5, 1938,. before Conn Cohalan, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Guild were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. At the commencement of the hearing the Trial Examiner granted a motion by counsel for the Board to dismiss the complaint as to Stewart. At the close of the Board's case the Trial Examiner granted a motion by counsel for the Board to amend the pleadings to conform to the evidence. During the course of the hearing the Trial Examiner made several 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 committed. The rulings are hereby affirmed. On September 13, 1938, the Trial Examiner filed an Intermediate Report, copies of which were served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act: (a) by discrimi- nating in regard to the hire and tenure of employment of Constance E. H. Daniel and William P. Milner, thereby discouraging member- ship in a labor organization, and (b) by interfering with, restrain- ing, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act. He recommended that the respond- ent cease and desist from its unfair labor practices and, affirmatively, offer full reinstatement with back pay to Constance E. H. Daniel and William P. Milner. He further recommended that the allegations of the complaint with reference to the discharge of George B. Murphy, Jr., be dismissed. On September 20, 1938, the respondent filed exceptions to the Inter- mediate Report and requested oral argument before the Board. On December 28, 1938, the Board served upon the parties notice of oral argument to be held on January 31, 1939, and, at the request of the THE AFRO-AMERICAN COMPANY ET AL. 1187 respondent, on January 30, 1939, served notices upon the parties post- poning the oral argument until February 28, 1939. Neither the re- spondent nor the Guild appeared to participate in the oral argument before the Board. On February 28, 1939, counsel for the Board, the respondent, and the Guild entered into a stipulation for the purpose of settling the case, subject to approval by the Board. The stipulation reads as follows : It is hereby stipulated and agreed by and between the Afro- American Company (hereinafter called the Respondent), by its attorney, Harry O. Levin, the Baltimore Newspaper Guild (here- inafter called the Union), by its Secretary, George H. Engeman, and Jacob Blum, Regional Attorney for the Fifth Region of the National Labor Relations Board, as follows : 1. That on or about September 3, 1938, Conn Cohalan, Trial Examiner, designated to conduct the hearing in the above cause, duly rendered his Intermediate Report, the same having been served upon all parties to said proceeding. That on September 19, 19381 the Respondent filed Exceptions to the said Intermediate Report, which Exceptions are hereby withdrawn, except as stated in paragraph 4 of this Stipulation. 2. That the aforesaid Intermediate Report provided among other things that the charge and complaint with respect to George B. Murphy, Jr. was not sustained, by the evidence, and that the complaint therefor was dismissed as to the said George B. Murphy, Jr., and it is agreed by and between the parties hereto that the finding of the Trial Examiner in this respect be sustained, and that the Order of the Board herein provided for shall also dismiss the complaint as to George B. Murphy, Jr. 3. All the parties hereto agree that the Respondent shall pay to Constance E. H. Daniel, whose reinstatement with back pay was recommended by the Trial Examiner, the sum of $520.00 in full settlement for any loss of earnings that she may have suffered by reason of her discharge by the Respondent. It is further understood and agreed that the Respondent has offered to rein- state the said Constance E. H. Daniel in accordance with the terms of the Intermediate Report, but that she refused to accept this offer of reinstatement. 4. All the parties hereto agree that the Respondent shall pay to William P. Milner, whose reinstatement with back pay was recommended by the Trial Examiner, the sum of $1000.00 in full settlement for any loss of earnings that he may have suffered by reason of his discharge by the Respondent. It is further under- stood and agreed that the Respondent has offered to reinstate the 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said William P. Milner in accordance with the terms of the Inter- mediate Report, but that he has refused to accept this offer of reinstatement. 5. The parties hereto agree that upon the record, the Inter- mediate Report and this Stipulation, the Board may make find- ings of fact and conclusions of law and enter an Order as follows : ORDER Upon the basis of the record, the Intermediate Report and this Stipulation, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, its officers, agents, successors, and assigns shall : 1. Cease and desist : (a) From in any manner discouraging membership in the Baltimore Newspaper Guild, or any other labor organization, by laying off, discharging or refusing to reinstate, or otherwise dis- criminating against its employees in regard to hire or tenure of employment, or any term or condition of employment; (b) From in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organi- zation, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Make whole Constance E. H. Daniel for any loss of pay she has suffered by reason of the Respondent's discrimination in regard to the terms and conditions or hire and tenure of her em- ployment, by payment to her a sum of money equal to that which she would normally have earned as wages from the date of her discharge to the date of such offer of reinstatement, less her net earnings during said period, which net amount due Constance E. H. Daniel amounts to the sum of $520.00, the said Constance E. H. Daniel having heretofore been offered reinstatement to her former position by the Respondent, and she having refused the same; (b) Make whole William P. Milner for any loss of pay he has suffered by reason of the Respondent's discrimination in regard tg the terms and conditions or hire and tenure of his employment, by payment to him a sum of money equal to that which he would normally have earned as wages from the date of his discharge to THE AFRO-AMERICAN COMPANY ET AL. 1189 the date of such offer of reinstatement, less his net earnings during said period, which net amount due William P. Milner amounts to the sum of $1000.00, the said William P. Milner having hereto- fore been offered reinstatement to his former position by the Respondent, and he having refused the same; (c) Immediately post notices in conspicuous places throughout its plants in Baltimore, Maryland, and Washington, D. C., and maintain such notices for a period of sixty (60) consecutive days from the date of such posting, stating that Respondent will cease and desist in the manner aforesaid; (d) Notify the Regional Director for the 5th Region, in writ- ing, within ten (10) days from the date of this order what steps the Respondent has taken to comply therewith; (e) That the complaint be and is hereby dismissed as to George B. Murphy, Jr. 6. The Respondent hereby consents to the entry by an appro- priate Circuit Court of Appeals of the United States of a decree enforcing an order of the Board in the form above, and expressly waives its right to receive notice of the filing of an application for the entry of such decree. 7. All of the foregoing shall be subject to the approval of the National Labor Relations Board. The Board hereby approves the above stipulation and orders that it be, and it hereby is, made a part of the record in this proceeding. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, The Afro-American Company, is a Maryland cor- poration with its principal place of business in Baltimore, Maryland. It also maintains branch offices in Washington, D. C., and Philadel- phia, Pennsylvania. The respondent's capital stock consists of 700 shares, all but 6 of which are owned by its directors, Carl Murphy, D. Arnett Murphy, John H. Murphy, Jr., George B. Murphy, and Eva S. Purdy. The respondent is engaged in publishing The Afro- American, a newspaper which is printed at its plant in Baltimore. The Baltimore edition of The Afro-American is published semi- weekly and weekly, editions are published in other cities. In its answer, the respondent stated that "the large part of the raw materials used in the publication of its newspaper, namely, paper, is purchased in the Dominion of Canada, and not in the United States." Adver- tising is solicited by employees of the respondent and national news- paper representatives in Baltimore and in other cities of the United 164275-39-vol xi-76 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD States. At least 25 to 331/3 per cent of the advertising comes from outside the State of Maryland.2 The respondent subscribes to the Associated Negro Press and the National News Service. The circula- tion of The Afro-American amounts to approximately 85,000 copies, of which 65,000 are shipped to destinations outside the State of Maryland. We find that the above-described operations of the respondent con- stitute and at all times herein mentioned have constituted a continuous flow of trade, traffic, and commerce among the several States and with the Dominion of Canada. ORDER On the basis of the above stipulation and findings of fact, and upon the entire record in the case, and' pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Afro-American Com- pany, Baltimore, Maryland, its officers, agents, successors, and assigns, shall : 1. Cease and desist : (a) From in any manner discouraging membership in the Balti- more Newspaper Guild, or any other labor organization, by laying off, discharging or refusing to reinstate, or otherwise discriminating against its employees in regard to hire or tenure of employment, or any term or condition of employment; (b) From in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Make whole Constance E. H. Daniel for any loss of pay she has suffered by reason of the respondent's discrimination in regard to the terms and conditions or hire and tenure of her employment, by payment to her of a sum of money equal to that which she would normally have earned as wages from the date of her discharge to the date of the offer of reinstatement, less her net earnings during said period, which net amount due Constance E. H. Daniel amounts to the 2 In Matter of The Afro-American Company and Baltimore Newspaper Guild, Case No. C-1207, decided this day, the respondent stipulated that approximately one-half of the advertising comes from States other than Maryland and also that it is engaged in interstate commerce within the meaning of Section 2 (6) of the Act. THE AFRO-AMERICAN COMPANY ET AL. 1191 sum of $520.00, the said Constance E. H. Daniel having heretofore been offered reinstatement to her former position by the respondent, and she having refused the same; (b) Make whole William P. Milner for any loss of pay he has suf- fered by reason of the respondent's discrimination in regard to the terms and conditions or hire and tenure of his employment, by pay- ment to him of a sum of money equal to that which he would nor- mally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, which net amount due William P. Milner amounts to the sum of $1000.00, the said William P. Milner having heretofore been offered reinstatement to his former position by the respondent, and he having refused the same; (c) Immediately post notices in conspicuous places throughout its plants in Baltimore, Maryland, and Washington, D. C., and main- tain such notices for a period of sixty (60) consecutive days from the date of such posting, stating that respondent will cease and desist in the manner aforesaid; (d) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days from the date of this order what steps the respondent has taken to comply therewith; AND IT IS FURTHER ORDERED that the allegations of the complaint, as amended, that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act by discharg- ing and thereafter refusing to employ George B. Murphy, Jr., and Wilbur 0. Stewart, be, and they hereby are, dismissed.