Knoxville Publishing Company

In the Matter of KNOXVILLE PUBLISHING COMPANY and AMERICAN NEWSPAPER Guxu, THE KNOXVILLE NEWSPAPER GUILD Case No. C-523.-Decided May 26, 1939 Newspaper Printing and Publishing BusinessInterference, Restraint, or Coercion: expressed opposition to labor organization, threats of retaliatory ac- tion ; engendering fear of loss of employment for union membership or activity ; disclosure of identity of union members , efforts to secure ; union affiliation and activity, questioning employees regarding-Employee Status : employed person having contract to be employed by another employer, employee of other employer upon terminating then employment and reporting for work-Discrimination: discharges of, sustained as to three employees, dismissed as to one-Reinstate- ment Ordered: for employees discriminated against-Back Pay: awarded to employees discriminatorily discharged-Unit Appropriate for Collective Bar- gaining: employees who devoted all or a substantial portion of their time to editorial or reportorial work, excluding clerical and supervisory employees ; no controversy as to-Representatives : proof of choice : membership list compiled from official union records-Collective Bargaining: meeting with representatives but with no bona fide intent to reach an agreement; counterproposals , failure or refusal to make; alleged bad faith of labor organization and conspiracy of labor organization with others, not proved. Mr. John 7'. Mahoney and Mr. Maurice J. Nicoson, for the Board. Frantz, McConnell d Seymour, by Mr. R. M. McConnell and Mr. T. G. McConnell, of Knoxville, Tenn., for the respondent. Mr. Herbert G. B. King, of Chattanooga, Tenn., and Mr. Abraham. J. Isserman, of Newark, N. J., for the Guild. Mr. Arnold R. Cutler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by American News- -paper Guild, acting in behalf of its affiliate, The Knoxville Newspaper Guild, herein called the Guild, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint, dated January 11, 1938, against Knoxville Publishing Company, Knoxville, Tennessee, herein called the respondent, alleging that the respondent had engaged 12 N.L. R.B.,No.119. 1209 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and upon the Guild. On January 29, 1938, the respondent filed its answer to the complaint. At the hearing the complaint and the answer were duly amended. The complaint, as amended, alleged in substance, so far as here material, that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; that it discharged Kenneth Harrison on or about May 31, 1937, Harry Human on or about June 1, 1937, Lucia Brown on September 4, 1937, and Lula Hubbell 1 on October 23, 1937, because they joined and assisted a labor organization; and that the respondent refused to bargain collectively with the Guild as the exclusive repre- sentative of its employees within an appropriate unit. The answer, as amended, denied the material allegations of the complaint, as amended, alleged affirmatively that the respondent was not engaged in interstate commerce, and requested that the complaint be dismissed by reason of the allegations contained' in such answer, as amended. Pursuant to the notice a hearing was held at Knoxville, Tennessee, on February 3 to 5, 7 to 12, and 14 to 16, 1938, before Albert L. Lohm, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Guild were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all the parties. At the close of the hearing, counsel for the Board moved that the pleadings be conformed to the proof. This motion was granted by the Trial Examiner. Also counsel for the respondent moved to dismiss the complaint, and requested leave to file thereafter a written specification of the grounds therefor. The Trial Examiner granted the request but reserved his decision on the motion. During the course of the hearing, the Trial Examiner made various other rulings on motions and objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 16, 1938, the respondent filed its written motion to dis- miss the complaint, stating as grounds thereof that the relation be- tween the respondent and its editorial employees is not interstate or foreign commerce, does not affect, burden, or obstruct the flow thereof, nor tend to do so, and is not subject to Federal control ; and that the record fails to sustain the alleged unfair labor practices t Also referred to in the record as Lola Hubbell. KNOXVILLE PUBLISHING COMPANY 1211 averred in the complaint. On April 8, 1938, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist from its unfair labor practices and take certain specified affirmative action to remedy the situation brought about by the practices. The Trial Examiner likewise denied the motion of the respondent to dis- miss the complaint. For reasons hereinafter set forth, this ruling is hereby affirmed. On April 18, 1938, the respondent filed exceptions to the Inter- mediate Report and on June 20 submitted a brief in support thereof. Pursuant to notice a hearing for the purpose of oral argument on the exceptions and record was held before the Board on June 21, 1938, in Washington, D. C. The respondent and the Guild were represented by counsel and participated in the argument. On June 30, 1938, the respondent submitted a supplemental brief. The Board has reviewed the exceptions to the Intermediate Report, and in so far as they are inconsistent with the findings, conclusions of law, and order below finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Tennessee corporation with its principal place of business and plant at Knoxville, Tennessee, is engaged in the business of publishing, selling, and distributing The Knoxville Journal, herein called the Journal, a morning newspaper. The average net paid daily circulation of the Journal during the 12-month period ending March 31, 1937, was 50,308 newspapers on weekdays and 54,271 on Sundays. The Journal is published at the Knoxville plant. Ninety-five per cent of the materials and supplies used by the respondent in the course of publication are purchased and brought to its plant from without the State of Tennessee. Paper is obtained from Canada, ink from Missouri, type material from Ohio, linotype machines from New York, and the repair parts for these machines from Louisiana. Dur- ing the year 1937 the cost of such materials and supplies was approxi- mately $165,000. Seven and one-half per cent of the weekday circula- tion of the Journal and 7.4 per cent of the Sunday circulation are delivered to destinations outside the State of Tennessee. The re- spondent for the year ending March 31, 1937, printed in the aggregate approximately 15,746,404 copies of the weekday edition, of which 1,180,980 copies went into interstate commerce, and 2,822,092 copies 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Sunday edition, of which 208,835 copies became part of sucht commerce. The respondent is a member of the Associated Press.2 The respond- ent as a member of the Associated Press is furnished a full-lease night wire service of approximately 60,000 words of news per day, of which, about 20,000 words are regularly published in the Journal. About 70,000 words of local news are gathered each day by the respondent, of which the Associated Press has the exclusive right of republication. It uses daily approximately 500 words of this news. About 15 per cent of the space in each edition of the Journal is- devoted to syndicated features and cartoons, all of which are obtained' from New York, Connecticut, and Iowa. In addition, about 10 per- cent of the advertising appearing in each edition is obtained from, without the State. In this connection the respondent employs adver- tising representatives with offices in a number of States.3 H. THE UNION The Knoxville Newspaper Guild is a labor organization affiliated with the American Newspaper Guild, a labor organization, which in turn is affiliated with the Committee for Industrial Organization. The Knoxville Newspaper Guild admits to membership all editorial and reportorial employees 4 in the city of Knoxville. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Guild was organized at Knoxville in May 1936. It comprised two branches, one branch consisting of editorial employees of the respondent,® the so-called "Knoxville Journal Unit," the other, of editorial employees of the Knoxville News-Sentinel, the publisher- of an afternoon newspaper at Knoxville. In April 1937 the Guild and' its branches were reorganized. Shortly after the formation of the Guild in 1936, Claggett, the- respondent's general manager in charge of all departments, began 8 We take notice, as a matter of common knowledge , that the Associated Press is an, agency engaged in the collection and dissemination of news on a Nation-wide and inter- national basis ; that it collects news from various sources throughout the United States and foreign countries , and compiles and distributes the same to newspapers 8 National Labor Relations Board v. The A. S. Abell Company, 97 F. (2d ) 951; National Labor Relations Board v. Star Publishing Company, 97 F (2d ) 465 aff'g 4 N. L. R. B. 498; The Associated Press v. National Labor Relations Board, 301 U. S. 103; Santa Cruz Fruit Packiny Company v. National Labor Relations Board, 303 U S. 453. 4 "Editorial employees" or sometime "editorial" as used herein at times includes persons engaged in reporting. 5 At that time , and until on or about July 16, 1936, the business of the respondent was, administered in receivership . The nature of the receivership is not disclosed by the record. KNOXVILLE PUBLISHING COMPANY 1213 to express open opposition to the Guild in statements to employees of the editorial department. These statements continued after ter- mination of the receivership in July." Claggett told the employees in substance that the Guild had "no place" in the editorial department of a newspaper, that a labor organization among editorial employees violated "freedom of the press," 7 and that any member of the staff who joined the Guild could expect no increase in salary and would forfeit any expectancy of promotion. He announced three principles which the editorial staff was to follow : loyalty, no drinking, and disapproval of the Guild. In August 1936 the managing editor in charge of the editorial department, one McNitt, informed an employee who requested an increase in salary, "Well, I told a number of people out there in the editorial department about it, and I thought that we would get around to you before this. No one who is connected with the Guild can get a raise or promotion on the Journal." At the hearing McNitt testified that he could not remember making such a statement. In view of the positive evidence that he had so stated, and the record as a whole, we are satisfied that the statement was made. In the early part of September 1936 Claggett in the course of hiring two editorial employees, informed each that there were two things which were prohibited, drink and Guild affiliation. This was said in the presence of McNitt. One of the employees also was told that the respondent was attempting to rid its organization as promptly as it could of all employees who joined the Guild. Both employees were hired only after they had indicated that they were neither affiliated with nor interested in the Guild. At the hearing McNitt denied that Claggett made the above statements. Claggett did not testify. We have no doubt that Claggett did make the statements. A few days after the incident Claggett cautioned one of the new employees not to expect an increase in salary or promotion if he joined the Guild. Other persons seeking or obtaining employment with the respond- ent during the period under review encountered similar experiences. One applicant was interrogated by McNitt concerning his opinion of the Guild, and then told, "We are opposed to the Guild here. Of course you may join the Guild, but if you do you won't be promoted or be given a raise in salary." Another was informed by McNitt that 9 See footnote 5. 1In The Associated Press v. National Labor Relations Board, 301 U. S. 103, the United States Supreme Court stated : "Does the statute [the Act ] as applied to the petitioner [Associated Press], abridge the freedom of speech or of the press safeguarded by the First Amendment ? We hold that it does not . . . So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press. We think the contention . . . an unsound generalization." 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the management was not in favor of union labor in its editorial de- partment, that if he proposed joining a labor organization he had better seek employment elsewhere. While McNitt denied these in- quiries and statements at the hearing, we attach no weight thereto. We already have indicated our disbelief of his denials. The intent and subject of McNitt's statements are consistent with similar state- ments made during the period by other managerial employees and officials of the respondent. The record plainly shows that the re- spondent was following a planned course of discrimination in its employment of persons for the editorial staff. In August 1937 the president of the respondent stated to an applicant that membership in the Guild was a hindrance to self-advancement "in the writing end of newspaper work." Upon being told that the applicant already was a member of the Guild, the president advised his considering re- signing from that organization and stated that when the applicant had resigned a position would be available. The applicant did not resign, and never was hired. The respondent called as a witness one employee who testified that on July 19, 1937, he was employed by the respondent although they respondent then knew that he was a member of the American News- paper Guild, the labor organization with which the Guild is affiliated. The record shows that this employee joined the American News- paper Guild before coming to Knoxville, that he never disclosed his affiliation to any of the editorial employees, save one who termi- nated his employment with the respondent shortly after the employee was hired, that he never was active in the local Guild, and that he did not attend any of its meetings. We see nothing in these circum- stances which warrant a conclusion that the respondent's policy in hiring editorial employees was not one of interest concerning their membership in the Guild. The editorial department conducts regular staff meetings from time, to time for the purpose of discussing work problems. In August 1936, shortly after McNitt was employed as managing editor, a staff meeting was held in the course of which McNitt stated that he "thought I could do more for members of the staff than a union could do." At the hearing McNitt was asked : Q. What did you think you could do for the staff that the union could not do? A. [By McNitt] Well, I was not sure whether I could do anything. Q. What made you think you could do more for the staff than the union could do? A. I had no very good reason for thinking that; I just knew that I was on the ground and in constant touch with other mem- KNOXVILLE PUBLISHING COMPANY 1215 bers of the management, and that they, I hoped, would have respect for my judgment on conditions in the department, and would abide by recommendations I might make for increases in pay and so on .. . In April 1937, after the decisions of the United States Supreme Court were handed down in the Jones & Laughlin 8 and related cases, McNitt stated at a staff meeting that the employees could either belong to the Guild or not, as they saw fit, but that he "knew then what the management was going to do for its employees without regard for the union, independently of the union," that the respondent would increase salaries as soon as business warranted." At another staff meeting held about the same time the respondent's president stated that there was "no place in the newspaper business for organi- zation." He dilated in the same vein at still another meeting, stating that there was considerable "unrest" prevailing and the employees should remain "free and independent men," that when working as a shoe clerk he had refused to join a union and those who had joined only recently came to him for assistance because of their impoverished state, that John L. Lewis was an objectionable person.'" As stated below, in May and June 1937 the Guild sought to bargain collectively with the respondent for the purposes of reaching an agreement covering wages, hours of service, and other working con- ditions of persons employed in the. editorial department. During, this period McNitt stated at a meeting of the editorial staff that if the Guild succeeded in its organization at least five employees who were present would lose their positions. McNitt testified that "to the best of [his] remembrance" what he had said was, "if the proposed con- tract should be put into effect it would increase the expense of the department to the point where it would be necessary to lay off or dismiss five members of the editorial staff." We are satisfied in the light of the respondent's hostility to the Guild, its increase of the salaries of 11 editorial employees, as hereinafter mentioned, when the negotiations with the Guild collapsed, and the entire record, that McNitt's statement was intended and understood as a threat, not as 8 National Labor Relations Board v. Jones d Laughlin Steel Corporation, 301 U. S. 1 8In Virginia By Co v System Federation No. 40, Railway Employees Department of the American Federation of Labor, et at ., 84 F. (2d ) 641, 643, ( C. C. A. 4th) aff'd 300 U S 515 , the Circuit Court commented : "any sort of influence exerted by an em- ployer upon an employee , dependent upon his employment for means of livelihood, may very easily become undue , . . . and it is a violation of the terms, as well as the spirit of the act [ Railway Labor Act] for the employer to address arguments to the employee couched in such terms , or presented in such manner, as to teach the employee to fear that be may suffer from the action of the employer if he does not follow the wishes of the latter in making his choice of representatives " See also National -Labor Relations Board v. The Falk Corporation, 102 F (2d) 383 (C C. A 7th) ; Virginia Ferry Corpora-, tion V. National Labor Relations Board, 101 F. (2d) 103 , 105-106 (C. C. A. 4th). w John L. Lewis was the chairman of the Committee for Industrial Organization 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an objective statement of possible consequences. About the same time, McNitt said to one employee that he thought the president of the respondent would close the business rather than enter into a contract with the Guild." The respondent also sought to utilize employees for purposes of gathering information concerning union membership and affairs. McNitt called one employee to his office and stated that he was happy to learn that the employee had not joined the Guild. Thereafter, at various times, McNitt asked this employee whether he knew of any employees who had recently joined the Guild. McNitt testified that he could not remember such conversations, but admitted inquiring of one employee if he belonged to the Guild, because he was "curious to find out who belongs and who does not." We have no doubt that McNitt went further in satisfying his "curiosity," and deliberately attempted to make use of the employee for eliciting such information. At one of the staff meetings in late 1936 McNitt requested the editorial employees to become each a "committee of one" and to report to him any "acts of disloyalty." At the hearing evidence was introduced showing that McNitt, in giving an instruction sometime in July 1937 about the writing of a news item dealing with one Moutoux, then president of the Guild, and Moutoux' involvement in a strike disturbance at Alcoa, Tennessee, expressly directed that the incident be written in such fashion as "to bring out emphatically the connection with the Guild, and also ... to put him [Moutoux] in the worst light ... governed by the facts." Subsequent publication in the Journal of this news item, written as McNitt had instructed, occasioned considerable local comment. While it is true that the publication of this news item, under the facts here presented, raises a strong suspicion that the respondent in so doing was motivated solely by an intent to interfere with and coerce its employees in the exercise of their right to organize, still, we are not entirely satisfied that despite its bias, the news item was not intended for regular news consumption. Accordingly, we shall not consider the foregoing evidence in determining the issues herein. It is manifest that, from the very inception of the Guild, the re- spondent has interfered with, restrained, and coerced its editorial employees regarding their becoming members of and their member- ship in the Guild. Through Claggett, McNitt, and the respondent's president, the respondent repeatedly voiced to the editorial employees its general opposition to the Guild and to their joining that organiza- tion. Considered in the light of the respondent's economic power 11 Matter of Dunbar Glass Corporation and Committee for Industrial Organization, 6 N. L. R. B 789, 792; Matter of McNeely cE Price Company and National Leather Workers Association, Local No. 30 of the 0. I. 0., 6 N. L. R. B. 800, 804. KNOXVILLE PUBLISHING COMPANY 1217 over its employees, a power which the respondent itself adverted to, these anti-union statements necessarily did intimidate the editorial ,employees in the enjoyment of their right to self-organization.12 Equally coercive and an interference were other acts of the respond- ent. Its threats to both old and new employees to withhold promo- tion of and not to increase the salaries of those who joined the Guild,13 its statements to new employees that it was attempting to rid itself of Guild members, its requirement of disinterest in the Guild as a condition or desideratum in hiring new employees for the editorial department, its assertion that the management could do more for the employees than the Guild would be able to accomplish and that salaries would be increased without regard to the Guild, thereby implying that the employees would derive no benefits from Guild affiliation, its interrogation of employees about the names of those who joined the Guild and its request of employees for similar information concerning "acts of disloyalty," all constituted interfer- ence, restraint, and coercion, within the meaning of the Act. The statement of McNitt at the time negotiations for a contract were pend- ing, to the effect that five employees would have to be discharged if the Guild succeeded in obtaining a contract, and his further statement that operation of the respondent's business probably would 'be discontinued in such an eventuality were especially intolerable. Not only were these statements an interference with and restraint upon self-organization, but they plainly were designed to "undercut" the authority and effective action of the collective bargaining repre- sentatives which a majority of the editorial employees in an ap- propriate unit had designated to represent them. It is precisely such interferences with the right to bargain collectively which the Act in guaranteeing that right sought to obviate. We find that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. B. The discriminatory discharges and allegedly discriminatory discharge Harry Human was employed prior to May 28, 1937, by a newspaper publisher in B,ichmond, Virginia. On May 28 he received a tele- graphic -communication from McNitt concerning a position with the respondent for Which Human shortly theretofore had made applica- tion. This communication stated, "Glad to talk to you about job. 12 See cases-cited indfootnote'9. 32 Matter of William 1Randolph Hearst, at al. and American Newspaper Guild, Seattle ,Chapter, 2 N. L. R B . 530, 542 modified in part National Labor Relations Board v. William Randolph Hearst at .al., 102 F. ( 2d) 658 (C. C. A 9). 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Have vacancy now. When do you plan to be in Knoxville ?" Human replied by telegram saying that he could come to Knoxville the fol- lowing Monday, May 31. Later in the day Human received a tele- phone call from McNitt. In the conversation which followed McNitt inquired into Human's capacity to fill the vacant position, his age, the nature of the work Human had been performing at Richmond, and the reasons for his seeking employment with the respondent. Human testified that McNitt asked him when he, Human, "would want to come" to Knoxville and then offered him employment in the position which was available at a monthly salary of $200. Human further testified that he accepted the offer as satisfactory and told McNitt that he would arrange with his employer to leave.l" McNitt's version of this portion of the conversation is in substance that he informed Human that the position of assistant news editor was available, i. e., copy reader at the copy desk ; that Human expressed a desire to go to Knoxville and discuss the matter with McNitt; that McNitt replied : "No . . . I think that this talk I have had with you will be sufficient for now. What I am going to do is get in touch with some of your former employers"; that McNitt told Human "that if I should decide to have him I would let him know. He (Human) said that his home was here and he had been planning to come down anyway, and I said `Well, if you are going to anyway I shall be glad to see you, but don't come down on my account', and he agreed to come down on his own." Following this conversation, Human proceeded to terminate forth- with his employment at Richmond. He notified his employer of his resignation, explaining that "the Journal wanted a man in a hurry and I would like to get away as soon as possible." His employer agreed to release him Monday night, May 31; however, it was under- stood that Human would work all day Saturday and Sunday, May 29 and 30, although these were not his workdays. On either Saturday or Sunday Human sent a telegram to McNitt stating that he would arrive in Knoxville on Tuesday, June 1. On Monday night, May 31, Human left Richmond for Knoxville. We are satisfied and find that the respondent through McNitt on May 28, 1937, promised Human to employ him as a copy reader at the copy desk of the respondent at a salary of $200 a month, it being un- derstood that Human would promptly terminate his employment at Richmond and report for work with the respondent during the week of May 31; that Human on May 28 undertook such employment with 14 In response to interrogation by the respondent's counsel , Human testified : A (Human ) ' I took It that I had been definitely promised a job when I was offered $200 a month to take a specific job Q In other words, your testimony is you thought you had a contract of employment? A. Yes, sir. KNOXVILLE PUBLISHING COMPANY 1218 the respondent and in reliance upon the respondent's promise termi- nated his employment in Richmond. The making by McNitt of his long-distance telephone call of May 28, as well as the nature of his inquiry, demonstrate that McNitt then proposed something more than a mere gathering of information respecting Human. The respondent needed someone to fill the vacant position and in that connection, prior to the exchange of telegrams on May 28, Claggett had mentioned to, McNitt that Human sought employment with the respondent. It was not unusual for McNitt to employ persons out of his presence. He testified : "That is the way I hired probably 90 per cent of the persons I hired, either by telephone or letter." And Human testified, "I have hired men that way; I have been hired that way before." Human had had about 16 years' experience in the newspaper business and was competent to fill the position which was available. We find it impossible to believe that he would have terminated his employment in Richmond had McNitt not promised him employment as a copy- reader. Human reached Knoxville on June 1 and telephoned McNitt of his arrival. McNitt told Human to come to McNitt's office, which, Human did about 4 p. m. There McNitt discussed with Human var- ious matters, including the operation of the copy desk. McNitt in- vited Human to meet and become acquainted with the respondent's- president, its vice president, and its general manager; and to have- the respondent's president explain "the situation" in Knoxville. A conversation between Human, McNitt, and these three officials there- after ensued. The discussion centered about newspapers in general, with the respondent's president commenting on what progress the- Journal was making in Knoxville. He told Human that he "wanted: a fine newspaper out of" the Journal. Some of the conversation touched upon Human's "personal views about things, whether I was. conservative or liberal." Toward what proved to be the end of the conversation, the respondent's president asked Human what his "at- titude" was toward the "Guild." Human replied that he was "a member of the Guild,'5 and had been up East," that the newspapers- there accorded recognition to that labor organization. The conver- sation then concluded with McNitt's instructing Human to await him in McNitt's office. About 15 minutes later Human was joined by- McNitt and told that McNitt was not ready to have Human begin, work, that Human should return the following day at the same time. The next day Human returned, intending to commence work, and was told by McNitt that McNitt still "was not ready" to announce the change, and that Human should return the succeeding day. McNitt did mention, however, that Human's work at the copy desk would Human's ref?rence was to the American Newspaper Guild. 169134-39-vol. 12-78 1220 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD :be the 'late shift from 6 p. m. until the daily final edition was pub- lished. Although Human made several attempts thereafter to be -placed at work, the respondent refused to do so. Another employee, one Hart, was hired for the position. Human testified that he knew nothing of Hart's obtaining the position until Hart in fact was put to work. Hart was not a member of the Guild ' or the American Newspaper Guild. McNitt testified for the respondent with respect to the conversa- tions had with Human, and other matters, following Human's arrival -at Knoxville. The meeting of June 1 between Human and McNitt, -as described by McNitt, was merely an investigation into Human's -qualifications for the position of copy reader, concluding with Mc- Nitt's informing Human that he would "have to wait before I could definitely give him a decision." Similarly, according to McNitt, "sub- stantially all that transpired" at the meeting in the office of the re- Ispondent's president was a further investigation into Human's qualifi- cations. McNitt did not "remember" whether the respondent's presi- =dent interrogated Human about Human's Guild affiliation. McNitt further testified that on June 1, 1937, Hart, the individual ,employed as copy reader by the respondent, made personal applica- tion of McNitt for a position. Whether Hart's visit preceded or fol- lowed McNitt's meeting of that day with Human is not satisfactorily set forth. McNitt stated that he was "not sure which was the first of the two to come to my office, whether it was Hart or whether it was Human," that Hart came "about the time" of Human's telephone call -to him. Nevertheless, McNitt also testified that the reason he was hesitating about putting Human to work on June 1 was because "I -had another man I was also considering." McNitt testified that he -did not believe he informed Human on June 1 about Hart. Thereafter -on June 1, apparently following his meeting with Human, McNitt, according to his testimony, hired Hart for the position of copy reader. McNitt stated that Hart "looked to me like a more capable and a more promising man for the position" than Human, that information given him by a former employer of Human, one Harris, disclosed that Hu- man "was a good average newspaper man," but no better, and "had .established a poor [indebtedness] record." However, whether McNitt -spoke with Harris before or after Human departed from Richmond for Knoxville is not clear. On direct examination McNitt stated, "I believe it was at that time [his meeting with Human on June 1], I believe I excused Human from my office and called Harris." On cross- -examination, he stated "he [Human] came in the office [on June 1] ... I had previously phoned Julian Harris"; again, "I am not en- tirely sure about that. It was after I had first seen Human, after he Thad come into the office, and it was also after I had seen Hart." McNitt KNOXVILLE PUBLISHING COMPANY 1221 testified that one day, "it may have been two days" after June 1, he told Human of Hart's employment. He further testified that he had Human come back the succeeeding days because he, McNitt, thought another position would become available, but that no such vacancy appeared. There can be no doubt of the unyielding hostility and opposition which the respondent entertained , during the period in which Human made his application , toward affiliation by members of its editorial staff with the Guild or with the American Newspaper Guild. The facts heretofore set forth show that McNitt, as head of the editorial department, played a leading role in the effort of the respondent to discourage Guild affiliation and to avoid employing Guild members. As stated above, McNitt made anti-union statements at editorial-staff meetings, told employees that Guild members would not be promoted or given a salary increase, and informed at least one applicant for a position on the staff that the respondent was not in favor of union labor in its editorial department and that if the applicant proposed joining a labor organization he would not be hired . As heretofore set forth, the respondent's president assumed a similar position at edi- torial-staff meetings and with regard to the qualifications of appli- cants. In May and June 1937, while negotiations between the Guild and the respondent were taking place, McNitt made his threat, to dismiss employees if the Guild succeeded in obtaining a contract. We are convinced that the respondent, in furtherance of its anti- Guild policy, in effect discharged Human on June 1, 1937, because of his membership in the American Newspaper Guild. It is plain that when Human reported to McNitt for work on that day, McNitt re- •ceived and treated him as an employee and fully intended to put him to work. Human then held the status of an employee . The men -discussed, among other things, the operation of the copy desk. We ,do not believe that McNitt was then concerned either with Human's -qualifications, or with the relative capacities of Human and Hart. No mention was made to Human of the pending application of Hart. Indeed, as stated above, McNitt was not sure at the hearing whether it was Hart or Human who came first to his office on June 1. We believe that the meeting with the respondent's officials on June 1 had as its purpose acquainting Human in a friendly way with his superiors, not a further inquiring into his qualifications . McNitt testified, "I made it a point each time I hired a man-I may have overlooked some, but in most cases when a new man came to work I made it a point to have him meet [the respondent's president] as soon as possible." We are satisfied that Human's disclosure of his membership in the Ameri- can Newspaper Guild, upon inquiry by the respondent's president, led directly and proximately to the respondent 's unwillingness to place 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him at work, thereby occasioning his dismissal. We have no doubt that neither McNitt, the respondent's president, nor any other of the respondent's officials theretofore knew of Human's affiliation. We do not believe that McNitt in asking Human to return on successive days after June 1 was motivated by an expectancy that another position would become available. McNitt was simply delaying informing Human of his loss of position. At their second meeting, McNitt men- tioned that Human's work at the copy desk would be the late shift; yet Hart, according to McNitt, already had been employed for the position. Hart's employment, we feel, was merely a substitution of another employee for Human after it became apparent that Human would not be retained. While we have found that Human held the status of an employee when the respondent discriminated against him, it is plain that even were this not so the respondent nevertheless discriminated against him, within the meaning of Section 8 (3) of the Act. We have stated, "It is not essential in all cases to a finding of unfair labor practice under this section of the statute that the status of an employee be held by the person against whom the alleged discrimination has been directed, for the provision thereof has express application to a discrimination as to hire." 16 We find that the respondent discharged and refused employment to Harry Human on June 1, 1937, because of his membership in the American Newspaper Guild, thereby discriminating in regard to the hire and tenure of said employee and discouraging membership in a labor organization; that by said discharge and refusal of employment the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act. Since June 1, 1937, Human has not had employment which was or is regular or substantially equivalent to the position of copy reader for which he had been employed. He has earned $280 since that date. Lucia Brown and Lola Hubbell, following the spring of 1937, com- prised the "society division" of the respondent's editorial department. They wrote various news items and features appearing in the "society columns" of the Journal. As part of their work they attended and reported various social affairs, such as "Junior League meetings and cotillion, sorority, [and] debut parties." Hubbell held the title of "society editor"; Brown was her assistant and the person in charge of the "woman's page" office. The two women were members of the Knoxville Journal unit of the Guild from the time of its reorganization in April 1937. Hub- 16 Matter of The Kelly-Springfield Tire Companj and United Rubber Workers of America, Local No. 26 and James M Reed and Minnie Rank , 6 N L R. B 325, 337 , order enforced (C. C A 4) C. C. H. Labor Law Service, par. 18196. KNOXVILLE PUBLISHING COMPANY 1223 bell had previously been a member when the Guild was first formed in May 1936. Both were active in Guild affairs, and quite apparently were firm believers in the desirability of unionization for editorial workers. Brown was elected a delegate to represent the Guild at meetings of the Central Labor Union, an organization of various labor unions located in Knoxville and affiliated with the American Feder- ation of Labor. When the Guild became associated with the Com- mittee for Industrial Organization, Brown- became its delegate to the Knoxville Industrial Council, the local central organization of unions affiliated with the Committee for Industrial Organization. Hubbell engaged in active solicitation of fellow employees to join the Guild. She testified that she "asked all those who didn't belong to join." It is plain that the respondent's management had knowl- edge of Brown and Hubbell's membership and activities in the Guild. Brown's election as a delegate to the central labor organiza- tions was given publicity in Knoxville newspapers, and McNitt testi- fied that he ascertained the fact of her membership "late in April." Hubbell, shortly after the formation of the Knoxville Journal unit, was visited in her office by Claggett, the respondent's general manager, who inquired whether she, "too," was a Guild member. Hubbell re- plied affirmatively, saying, "I believe in it, I think it is the right thing." Claggett, at that time, stated, "I don't think there is any place in the editorial department for a union organization. I think you will find it is all wrong." Brown was discharged by McNitt on September 4, 1937. McNitt informed her, as she was preparing to leave for a short vacation, that unfavorable business conditions required him to reduce depart- mental expenses and that, accordingly, he would have to discharge her. Brown was earning $100 a month. She asked McNitt whether any other editorial employee was being dismissed. McNitt replied that she was the only one at that time. He gave her a letter of recom- mendation stating in part, "I cannot speak too highly of her general character and qualifications for newspaper work." He also promised that "if an opening should occur . . . [the respondent] would get in touch with her"; however, while the respondent has since had vacant positions which it filled-indeed, in late October 1937 it substantially renewed the position Brown had occupied and promoted another em- ployee to it at $60 a month, it never inquired into the matter of reemploying Brown. There is no question of the competency of Brown's work. It is clear that she was a very capable employee. The respondent urges, however, that her discharge occurred solely for business reasons. Its general manager, Page, testified that he and McNitt jointly reached a decision sometime in September that expenses in the editorial department 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have to be cut, and McNitt testified that in pursuance of such decision he determined on the afternoon of September 4 to dismiss Brown. The record shows that on July 1, 1937, at a time when the respondent contends its business was losing money, the salaries of 11 editorial employees and 4 advertising employees were voluntarily in- creased by the respondent; that between July 1 and the date of the hearing increases were granted to employees in all the departments of the respondent; and that in November or December 1937 the re- spondent's business concededly was on a profitable basis. In this con- nection McNitt testified that "about September [the respondent] be- gan making some real progress"; and that in "November or December"' it was "making money." At the hearing Page testified that Brown was discharged for the additional reason that "she was not needed," that "there was no need for her at all." The record, however, leaves no doubt of the real neces- sity which existed for someone to perform the work which Brown, was doing. This was especially true of the period when Brown would have returned from her vacation. The middle of September marks the commencement of the regular fall season of social activities, and a consequent notable increase in the amount of reporting and writing required of the society division. Upon Brown's departure, Hubbell was instructed to perform the work previously done by herself and Brown. With the advent of the social season the amount of this work was altogether more than Hub- bell reasonably could have been expected to accomplish. She was re- quired to work 7 days each week during September, "working every minute just as hard as I could work, with no time to draw my breath hardly." About the second week in October one Smith, the personal secretary of the general manager, Page, was assigned to work part of the time in the society division. On October 23, 1937, Hubbell was discharged. She was summoned to Page's office and told that her employment was terminated, for "lack of interest" in her work. Hub- bell pointed out that she had been so overworked she would have had to quit and rest. At the hearing Page testified that Hubbell "admitted that she had lost interest," and contended that this alleged change in attitude had affected Hubbell's ability as society editor, that she was discharged in consequence. Hubbell denied in her testimony that she had lost interest, or that she had so admitted. The evidence is clear, as noted above, that Hubbell worked long and intensive hours after Brown was discharged, and one Moorefield, the respondent's city editor until August 1937, testified that Hubbell's work was always very satis- factory when he knew it, that she had many good ideas, was a hard worker, and that she never showed any lack of interest in her work. KNOXVILLE PUBLISHING COMPANY 12257, Under the circumstances involved, and in view of our discussion below,. we are unable to give credence to the testimony of Page. Page also, testified elsewhere in the record that he discharged Hubbell, "Prin- cipally for economy, with several contributing factors." Following Hubbell's discharge, Page's secretary, Smith, was given, Hubbell's position and another employee, one Caldwell, who appar- ently had not theretofore worked the full workweek, was promoted to be her assistant. Caldwell also performed what work she formerly had done as well as that of one other employee, apparently also a part-- time worker. Neither Smith nor Caldwell were or are members of the Guild. We are convinced that the discharges of Brown on September 4 and of Hubbell on October 23, 1937, were in furtherance of the same anti- Guild policy which the respondent has followed and which was mani- fest in its discharge of Human. The respondent's president stated' this policy some time previously when he said that there was "no placer- in the newspaper business for organization," that those who "weren't loyal . . . should not be working for the" respondent. Brown was an, outstanding member of the Guild; her union activities were the object of local newspaper publicity. We have no doubt that these considera- tions directed-the respondent in its resolve to be rid of her. It is appar- ent that the respondent was concerned with something more than sav- ing the $100 paid her monthly, for the advent of the social season and' the consequent necessity of securing someone to perform Brown's work- made it unlikely that such a saving would accrue. The respondent must have known prior to its discharge of Brown, that Hubbell alone- could not perform the work and that another person would have to be- obtained in her stead in the society division. The reason given by McNitt to Brown as to why she was discharged was nothing more than' a pretext. Hubbell's above-mentioned conversation with Claggett bespeaks her firm belief in the Guild and in unionization for newspaper edi- torial workers. We find that it was this adherence which finally- brought about her discharge. The evidence does not establish that- she lacked interest or initiative in her work; on the contrary, she assumed with all of her strength and capacity the additional work burden occasioned by Brown's discharge. Nor are we impressed with Page's testimony that it was "principally for economy" that Hubbell was discharged. The saving to which Page adverted did not result directly from Hubbell's dismissal. Hubbell received a monthly salary of $100, whereas her successor, Smith, was paid $125 a month. We find that the respondent discharged Lucia Brown on September 4, 1937, and Lola Hubbell on October 23, 1937, and each of theme be- 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -cause of their membership and activities in the Guild, thereby discrimi- nating in regard to the hire and tenure of said employees and dis- ,couraging membership in a labor organization; that by said discharges, and each of them, the respondent has interfered with, restrained, and -coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. Since their respective discharges, neither of these employees has had -employment which was or is regular or substantially equivalent to her former employment with the respondent. Since her respective dis- .charge, Brown has earned $277; Hubbell, nothing. Kenneth Harrison was discharged by the respondent on May 27, 1937. We are satisfied from an examination of the record that this discharge was brought about by Harrison's inability to perform the new work to which he was assigned. We find that the respondent has not discriminated against Harrison in regard to his hire or tenure of -employment, or any term or condition of employment, as alleged in the complaint, as amended. C. Refusal to bargain collectively 1. The appropriate unit The Guild contends that all of the respondent's employees who de- vote all or a substantial portion of their time in editorial or repor- torial work, excluding clerical and supervisory employees, constitute the unit appropriate for collective bargaining purposes. The respond- ent does not contend that this unit is inappropriate, and we see no rea- son for not finding it to be appropriate. Accordingly, we find that all of the respondent's employees wha devote all or a substantial portion ,of their time to editorial or reportorial work, excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that such a unit insures to the employees the full benefit of their right to self- ^organization and to collective bargaining, and otherwise effectuates the policies of the Act. 2. Representation by the Guild of the majority in the appropriate unit It was agreed at the hearing by the parties that during May and June 1937 the respondent employed 34 editorial and reportorial em- ployees, the names of these employees appearing in a certain list furnished by the respondent and introduced in evidence. Eleven of these employees, however, were not within the appropriate unit found, either because they worked less than a substantial portion of the time as editorial or reportorial employees, or because they were clerical KNOXVILLE PUBLISHING COMPANY 1227 or supervisory employees, or were no longer employed by the re- spondent. Upon the foregoing evidence and the entire record, we find that in May and June 1937 the respondent employed 23 employees 17 within the unit found appropriate. At the hearing the Guild did not have available for introduction in evidence the original membership application cards of its members, showing which of the respondent's employees were its members. How- ever, it submitted for the examination of counsel for the respondent, the receipt books of its treasurer, and based on such books introduced in evidence a statement setting forth the names of its members, the- date each respectively paid his initiation fee, and the date of his payment of dues. A comparison of this list with the names of the 23 employees found to be within the unit establishes that as of May 8, 1937, there were 15 employees within the unit found appropriate who were then members in good standing in the Guild. At the hear- ing for oral argument before the Board, counsel for the respondent stated that the respondent has never questioned the fact that the Guild represented a majority of the respondent's employees in the appropriate unit. We find that on May 8, 1937, and at all times thereafter the Guild was the duly designated representative of the majority of the re- spondent's employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment. 3. The refusal to bargain About the beginning of May 1937, the Guild, as collective bargain- ing representative of the respondent's employees in the unit found ap- propriate, communicated with the respondent for the purpose of arranging a conference between it and the respondent concerning wages, hours of employment, and other working conditions of the employees. On May 15, 1937, the parties held their first meeting. The Guild was represented by one Marks and a so-called negotiating committee; the respondent, by Page, McNitt, and its vice president, Charles Smith, Jr." After preliminaries, Marks submitted to the respondent's rep- resentatives for consideration copies of a proposed draft contract be- 11 Hubbell was listed among the 23. Although Page testified that the society editor was a supervisory employee, counsel for the respondent did not contend that Hubbell should, be excluded from the appropriate unit. Where, as here, only one union is involved, and' it desires the inclusion of a supervisory employee who does not perform major supervisory functions, the desires of the labor organization are determinative Matter of Shell Petroleum Corporation and Oil Workers International Union, Local No. 367, 9 N. L. R. B. 831. "With some variations the persons who attended the subsequent conferences were the same as those who were present at the conference of May 15. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween the Guild and the respondent providing for wages, hours of employment, and other working conditions of the respondent's edi- torial and reportorial employees. Page read hurriedly through the draft contract, observed some of its major provisions, and then stated that the respondent was unable financially to assume the obligations which the proposed agreement imposed. He asserted that since the receivership the respondent had encountered difficulty in making its business profitable and that its condition "still was not prosperous." Marks replied that the Guild was prepared in reaching an agreement to consider the respondent's financial condition and suggested that the parties should obtain the relevant data. In this connection he inquired whether the respondent would be willing to have an audit of its books made, stating that the Guild probably would pay the cost thereof. Page refused, giving as his reason that some members of the Guild negotiating committee were employed by a competitor, the Knoxville News-Sentinel. He added that the respondent "would stand or fall on last year's balance sheet." Marks, however, declined to have the negotiations based upon the respondent's 1936 financial statement to which Page had adverted, contending that the statement did not reflect what improvement had occurred in the respondent's financial condition since the preparation of that statement. He pointed out that financial ability was a matter on which reasonable men might differ, and that for the parties to be able to bargain collectively they should know precisely what the true facts were.19 Marks then suggested that the parties consider the various provi- sions of the proposed draft contract, in order to discover what their actual differences were. This occurred after considerable discussion had ensued as to what duty the Act imposed upon employers to bar- gain collectively. The parties considered a few of the terms in the draft contract. McNitt stated with respect to a provision that "No employee writing over his signature shall . . . be required to conform to the paper's editorial policy at the expense of his personal convictions," that "that merely reflected the present policy of the paper." When the Guild representatives questioned the truth of McNitt's statement, one of the respondent's representatives stated that the provision was objectionable because it would "prohibit the management from making assignments to particular employees." When it was explained that the provision merely proposed to protect editorial employees against the use of their names in connection with the authorship of articles which did not express their views, Page and McNitt stated that in any event the respondent must reserve to itself its right to determine what use was to be made of any em- 10 Cf. Matter of Pioneer Pearl Button Company and Button Workers' Union, Federal Local 200t6, 1 N. L. R. B. 837, 843. KNOXVILLE PUBLISHING COMPANY 1229 ployee's name involving articles written by him, "regardless of whether he agreed with it." The conference concluded with an un- -derstanding that the parties would'meet again after the respondent's representatives had considered further the draft contract. On May 20 a second conference between the representatives of the Guild and of the respondent was held. Page stated that the manage- ment, in the interim, had given the proposed contract full considera- tion and found it "a financial impossibility," that the respondent was incurring large expenditures for plant and other improvements and could not afford to operate on the terms of the proposed contract. However, he offered no particularization of the facts concerning the respondent's financial condition and refused to have them ascertained through an audit or otherwise. Marks asked Page if the respondent would make a counterproposal to the offer of the Guild as contained in its draft contract, in order that the parties could have "some basis on which to judge the merits . . . of the contract" proposed by the Guild. Page refused to do this. Finally, Marks determined to take up separately each of the provisions of the draft contract to ascertain in that fashion which of the provisions were and which were not objectionable to the respondent. As he proceeded to make inquiry seriatim concerning each of the provisions, the single reply which he elicited from the respondent's representatives was that the respondent "could not afford to enter into the contract in whole or in part." No counterproposals were made by the respondent's repre- sentatives. The conference thus concluded. On the following day the Guild wrote a letter to the respondent reviewing the events of the two conferences, stating in effect that it was the earnest and sincere desire of the Guild as the representative of the respondent's editorial and reportorial employees, to meet and bargain collectively with the respondent in regard to the terms of the employees' industrial rela- tions, and pointing out that the attitude and conduct of the respond- ent at the conferences had "so far prevented such collective bar- gaining." A third meeting of the parties followed on May 27. At this con- ference, as well as at the succeeding conferences set forth below, the respondent was represented by two attorneys-at-law, one McConnell and one Harton, in addition to the managerial officials who thereto- fore had represented it. McConnell stated as the position of the respondent that the respondent "wanted to do everything it could ... for its employees as soon as it could but the financial con- -dition of the paper would not permit it to do anything then." He repeated what Page had stated at the first two conferences concern- ing the alleged financial condition of the respondent. To the sugges- tion that an audit be made to determine the asserted facts thereof, 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McConnell stated that the respondent would not consent thereto "under any condition." Marks pointed out as bearing on the subject of the respondent's financial condition that the respondent admittedly was making substantial expenditures for plant and other improve- ments, that it appeared from certain publicity given by the respond- ent that both circulation of the Journal and the amount of advertis- ing it carried had substantially increased. However, the respondent's representatives made no counteroffers or proposals. Some time then was spent by McConnell and Marks in discussing the meaning of collective bargaining. Marks asked that the proposed contract be considered in detail to determine whether or not "by a process, of compromise and counter-proposals" an agreement between the re- spondent and its employees could be reached. McConnell then stated that he had had no opportunity to study the contract, and desired time to do so. The parties accordingly decided to adjourn and made arrangements for another meeting. On June 1 the representatives of the Guild and of the respondent again met. McConnell said that he had considered the proposed con- tract and "that the provisions were such" that the respondent could not, in view of its financial condition, execute the agreement. How- ever, specific terms of the draft contract were discussed by the parties. With respect to the provision for a so-called "Guild shop," 20 McCon- nell stated that the respondent was opposed to it "in any form."? Marks replied that in so far as the respondent's editorial and rep- ortorial employees were concerned, the provision was not indis- pensable to an agreement with the respondent and that he would ask the Guild to modify the proposed contract in that respect. The position of the respondent on the subject of the use of employees' names in connection with articles or other writings, remained un- changed from that which the respondent had assumed at the first conference. McConnell stated that the respondent would not accept the provision in question even though it was restated to make clear that no limitation was intended upon the respondent's authority to assign what work it wished to particular employees. He contended that the mere existence of such a provision "could lead to abuses." McNitt added that while the respondent in fact had followed the practice thus provided for, and while he was sure that there would not be any occasion for dispute in the future about its continuing the practice, he doubted that the respondent "as a matter of prin- ciple . . . would agree to such a rule written into a signed contract." 20 The "Guild shop " provision of the proposed contract read as follows : The manage- ment shall be free to choose members of the editorial staff ; provided that all editorial employees shall become members of the Guild within thirty (30) days after their employ- ment, or after this contract goes into effect, whichever is later, and provided , further, that no person once expelled from any chapter of the Guild shall be eligible for employment. KNOXVILLE PUBLISHING COMPANY 1231 As to the provision for a workweek of 5 days, 40 hours, McConnell said that the respondent was financially unable to put into effect such a plan. However, after some discussion with the Guild representa- tives, he promised that McNitt would obtain for their next meeting data showing to what extent the performance of such a provision would increase the respondent's operating costs. McConnell repeated, concerning the item of wages, that the respondent was "not financially able" to agree to a wage scale such as the proposed contract con- templated. He then was asked, expressly, to make in behalf of the respondent a "counter proposal . . . by way of a compromise." He was told that it was probable that if an agreement for wages could slot be reached at the scale provided in the proposed contract another wage scale might be found acceptable to the parties. McConnell's answer was that the respondent "was.going to give the best wages it possibly could, as soon as conditions permit, and that is all [the respondent] could do." Witnesses for the respondent testified that the respondent's representatives then undertook to furnish informa- tion to the Guild representatives at the next conference relating to the amount of increase in expense which the institution of the pro- posed wage scale would entail. While not determinative of the issues here presented, we are convinced from all the testimony, in the light of the foregoing facts and circumstances, that the promise of the respondent's representatives to submit data at the succeeding con- ference concerned only the matter of increased costs, if any, attending the adoption of the proposed workweek, not of any cost increase involved in an acceptance of the proposed wage scale. The position of the respondent in regard to the proposed provisions for employee vacations, sick leave, "severance indemnity," and the docking of em- ployee salaries was that it was unnecessary for the parties to negotiate as to such matters because the respondent already was complying or substantially complying as a matter of practice with the terms thereof.21 Although some of the members of the Guild negotiating committee disputed this fact, McConnell insisted that it was unneces- sary "to have it in the contract if we . . . [are] already doing it." The final conference took place on June 25. After mentioning that the Guild was considering omitting from the proposed contract the provision for a "Guild shop", Marks asked whether the respond- ent's representatives would submit the data which had been promised .concerning the respondent's cost under the proposed workweek. No data was offered. Instead, McConnell stated, "You know it would be more expensive," and McNitt, after making a similar comment, added that the respondent was planning to reduce its workweek to 21 McConnell also stated that the "severance provision" would require some modification to cover certain contingencies. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 days, 42 hours in the fall. Marks observed that if such were the case "perhaps [the parties] were not so far apart after all", and offered to compromise the issue. To this, the representatives of the respondent merely replied that the respondent would improve the working conditions of its employees "as soon as it could and as soon as conditions warranted." Unable, thus, to obtain any counter- offer from the respondent as to hours, the Guild representatives turned to a consideration of the "severance indemnity" provision. Although, as stated above, the respondent's representatives at the previous conference were in accord with the principle of this pro- vision, McConnell refused to agree to it, on the ground that drafting a satisfactory statement thereof was impossible .22 He adhered to this position although Marks offered to have the provision rewritten. Marks then stated that in view of the course which the respondent had pursued throughout the negotiations the only conclusion open to the Guild was that the respondent had never intended to bargain collectively in good faith with it, that the respondent proposed never to enter into an agreement with the Guild, and that this conclusion was supported by the persistence of the respondent's anti-union acti- vities after negotiations had commenced. McConnell said that Marks "was just making trouble, stirring up our employees, that he was an outsider and did not understand the conditions." As the Guild representatives rose to depart, McConnell further asked that they "remain and talk things over." Marks answered that the respondent should first show that it intended to bargain collectively in good faith and give assurance that its anti-union activities would cease. To this McConnell replied, "Sit down and talk, we will listen to you forever." The Guild representatives thereupon departed and no negotiations were thereafter held by the parties. As above men- tioned, on July 1 the respondent increased the salaries of 11 editorial employees.23 At the hearing the respondent contended that its representatives had available with them at the June 25 conference the data which had been promised the Guild, that such data had not been submitted at the meeting because the parties "didn't get around to that." The evidence shows, however, that the meeting was of at least 1 hour's duration and the subject of workhours had been considered early in the conference. Irrespective of whether the respondent's representa- tives had this data with them, it is plain, and we find, that the re- spondent had no intention of divulging this information at that time to the Guild representatives. 21 See footnote 21. 23 Cf. National Labor Relations Board v. American Potash and Chemical Corporation, 98 P. (2d ) 488 (C. C. A. 9) cert. den. 59 S. Ct. 582. KNOXVILLE PUBLISHING COMPANY 1233: The position and attitude taken by the respondent's representatives throughout the afore-mentioned conferences with the Guild clearly establish that the respondent never had a sincere desire to explore the possibility of reaching an agreement with the representatives of its employees concerning wages, hours, and other working conditions. It was altogether unwilling to attempt in good faith a reconciliation of differences and an agreement on terms. Its participation in the conferences was limited to a setting aside of each and every proposal advanced by the Guild. Even unobjectionable provisions were dis- regarded as "unnecessary." This is not collective bargaining as required by the Act 24 It has been repeatedly held that Section 8 (5) imposes upon the employer a duty to negotiate in good faith with the employees' representa- tives.25 Mere meeting with the employees' representatives does not fulfill the obligation under the Act if there is no sincere desire to reach an agreement. As was recently stated : 2e ... there is a duty . . . to enter into discussion with an opert and fair mind, and a sincere purpose to find a basis of agree- ment touching wages and hours and conditions of labor, and if found to embody it in a contract as specific as possible, which shall stand as a mutual guaranty of conduct, and as a guide for the adjustment of grievances. The respondent at the hearing, and in its oral argument before the- Board, contended that the Guild had not in good faith entered upon its negotiations with the respondent, that the negotiations were un- dertaken as part of a conspiracy between the Guild, the Tennessee- Valley Authority, and the Knoxville News-Sentinel for the purpose- of causing a strike at the respondent's place of business and destroy- ing the respondent. The respondent alleges that the Authority was hostile to it because of an unfavorable editorial policy concerning- the Authority pursued in the Journal, that the Knoxville News- Sentinel was hostile because it was a competitor, and that these two had, through the Guild, made use of the desires of the respondent's employees to advance their own ulterior purposes. It is difficult to- believe, upon the record before us, that the respondent is in earnest in its contention. The record establishes no such conspiracy, let alone the asserted complicity of the Authority or the Knoxville News- Sentinel therein. The record shows that following the June 25 con- 24 Globe Cotton Mills v National Labor Relations Board, 103 F. (2d) 91 (C C. A. 5) ; National Labor Relations Boatd v. Biles-Coleman Lumber Company, 98 F (2d) 18 (C. C. A. 9) ; Matter of S. L. Allen & Company, Inc., a Corporation and Federal Labor Union Local No. 18526, 1 N. L. R. B. 714, order enforced (C. C. A. 3) C. C. H. Labor Law Service. par 18989. 25 See cases cited in footnote 24. 0 Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5). 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference a union composed of employees of the Authority engaged in certain activities, among other things, in giving publicity to the re- fusal of the respondent to bargain collectively with the Guild. There is no proof that these activities were at the instance of the Authority. Nor were these activities themselves demonstrated to be unlawful. We find the contention of the respondent to be wholly without merit. We find that the respondent on May 15, 1937, and at all times since, refused to bargain collectively with the. Guild as the repre- sentative of its employees in regard to rates of pay, wages, hours of employment, and other conditions of employment, and thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial 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 It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from certain activities and practices in which we have found it to have engaged, and in aid of such order and as a means for removing and avoiding the consequences of such activities and practices , that the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent discharged Harry Human,27 Lucia Brown, and Lola Hubbell because of their affiliation with and/or their activities in behalf of a labor organization. Accord- ingly, we shall order the respondent to offer each of these employees immediate and full reinstatement to his or her former position with the respondent, or if such position be abolished, then to a substan- tially equivalent position, without prejudice to their seniority and other rights and privileges; and to make said employees whole for any loss of pay they have suffered by reason of the respondent's illegal acts against them by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date of his or her discharge to the date of 'In Human's case the position referred to is copy reader at the copy desk, in which Hart was subsequently employed. KNOXVILLE PUBLISHING COMPANY 1235 the offer of reinstatement, less his or her net earnings 28 during said period. We shall also order the respondent to bargain collectively with the Guild as the representative of all the respondent's employees who devote all or a substantial portion of their time in editorial or rep- ortorial work, excluding clerical and supervisory employees, and to take certain other action more particularly set forth in the Order. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The Knoxville Newspaper Guild is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to hire and tenure of employment of Harry Human, Lucia Brown, and Lola Hubbell thereby discourag- ing membership in The Knoxville Newspaper Guild, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. All of the respondent's employees who devote all or a substantial portion of their time in editorial or reportorial work, excluding cler- ical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. The Knoxville Newspaper Guild was on May 8, 1937, and at all times thereafter has been, the exclusive representative of all employ- ees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with The Knoxville News- paper Guild, as the exclusive representative of the employees in the above stated unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 21 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Hatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B' 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects aie not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal , or other government or governments which supplied the funds for said work -relief projects. 169134-39-vol. 12--79 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. By discharging Kenneth Harrison the respondent did not dis- criminate in regard to hire and tenure of employment of said em- ployee, or in regard to any term or condition of his employment, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the 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 that Knoxville Pub- lishing Company, Knoxville, Tennessee, and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in The Knoxville Newspaper Guild or any other organization of its employees by discriminating in re- gard to hire or tenure of employment or any term or condition of employment; (b) Refusing to bargain collectively with The Knoxville News- paper Guild, as the exclusive representative of all the respondent's employees who devote all or a substantial portion of their time to editorial or reportorial work, excluding clerical and supervisory employees ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed 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) Offer to Harry Human, Lucia Brown, and Lola Hubbell, and each of them immediate and full reinstatement to their respective former positions, or if such positions are abolished, then to substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges; and make them whole for any loss of pay they have suffered by reason of their respective discharges by the re- spondent by payment to each of them a sum of money equal to the amount each would normally have earned as wages from the date of his or her discharge to the date of the offer of reinstatement, less his or her net earnings during that period, deducting, however, from the amount otherwise due to each of such employees, monies received by KNOXVILLE PUBLISHING COMPANY 1237 him during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amounts, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (b) Upon request bargain collectively with The Knoxville News- paper Guild, as the exclusive representative of all the respondent's employees who devote all or a substantial portion of their time to editorial or reportorial work, excluding clerical and supervisory em- ployees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Post immediately in conspicuous places throughout its plant where it publishes The Knoxville Journal, and maintain for a period of at least thirty (30) consecutive days, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c), and that it will take the affirmative action set forth in 2 (a) and (b), of this Order; (d) Notify the Regional Director of the Tenth Region within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Kenneth Harrison, be, and it hereby is, dismissed.