Decatur Newspapers, Inc.

In the Matter of DECATUR NEWSPAPERS, INC. and DECATUR NEWS- PAPER GUILD, AFFILIATED WITH AMERICAN NEWSPAPER GUILD, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-760.-Decided October 06, 1939 Newspaper Publishing Industry-Interference, Restraint, and Coercion: .anti-union statements by supervisory employees ; discriminatory demotion for union activities-Discrimination: charges of , not sustained-Unit Appropriate for Collective Bargaining: full-time editorial employees exclusive of supervisory employees ; no controversy as to-Representatives: proof of choice : member- ship in union-Collective Bargaining : charges of failure to bargain collectively dismissed-Strike: involved ; not caused or prolonged by unfair labor practices of the respondent. Mr. Robert R. Rissman, for the Board. Vail, Mills & Armstrong, by Mr. Robert R. Vail, of Decatur, Ill., for the respondent. Mr. Allan Lind, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Decatur News- paper Guild, herein called the Guild, the National Labor Relations Board, herein called the Board, by the Regional Director for the 'Thirteenth Region (Chicago, Illinois), issued its complaint, dated April 8, 1938, against Decatur Newspapers, Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices 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 the Guild. The complaint alleges in substance that (1) on and after June 16, 1937, the respondent refused to bargain collectively in good faith 16 N. L. R. B., No. 52. 489 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Guild, the duly designated exclusive representative of em- ployees of the respondent in an appropriate unit; (2) the respond- ent's refusal to bargain in good faith with the Guild caused its editorial employees to go on strike on July 10, 1937; (3) on August 5, 1937, the respondent discouraged membership in the Guild by refusing to reinstate Harley Lewis and Charles Swart because they engaged in union activity; and (4) by the above acts and conduct, by interrogation and threats, and by other statements and acts the re- spondent interfered with, restrained, and coerced its employees in the exercise of the right to self-organization and to engage in con- certed activities for their mutual aid and protection as guaranteed in Section 7 of the Act. On April 14, 1938, and on April 18, 1938, the respondent filed an answer and amended answer, respectively, in which it denied that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at Decatur, Illinois, from April 18 to 22, 1938, before Charles W. Whittemore, the Trial Ex- aminer duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to produce evidence bearing upon the issues was afforded all parties. During the course of the hearing counsel for the respondent moved to dismiss the complaint on the grounds that the Board was without jurisdiction and that the evidence did not sustain the allegations of the complaint. The Trial Examiner denied the motions. At the close of the hea ring counsel for the Board moved to amend the complaint to ' conform to the proof. The Trial Examiner granted the motion. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evidence. ' The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 13, 1938, the Trial Examiner filed his Intermediate Re- port. He found that the respondent had engaged in and was engag- inin unfair labor practices affecting commerce within the meaning of-Section 8 (1), (3)', and (5) and Section 2 (6) and (7) of the Act, by refusing to bargain collectively and in good faith with the Guild ; by discharging and refusing to reinstate Charles Swart and Harley Lewis; and by' interfering with, restraining, and coercing its em- ployees in the rights guaranteed in Section 7 of the Act. He recom- mended that the respondent cease and desist from engaging in the unfair labor practices, and; affirmatively, offer full reinstatement with back pay to Charles Swart and Harley Lewis, and upon request bar- gain collectively in good faith with the Guild. i I DECATUR NEWSPAPERS, INCORPORATED 491 On July 21, 1938, the respondent filed exceptions to the Interme- diate Report and on August 8, 1938, the respondent filed a brief. On December 20, 1938, pursuant to permission granted by the Board, the respondent presented oral argument before the Board in Wash- ington, D. C., in support of its contentions. The Board has reviewed the exceptions and the brief and finds the exceptions to be without merit, except as they are consistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE 13USINESS OF THE RESPONDENT Decatur Newspapers, Inc., a Delaware corporation, having its principal office and place of business in Decatur, Illinois, prints, edits, publishes, and distributes the Decatur Herald, .a daily news- paper; the Decatur Daily Review, a daily newspaper; the Sunday Herald and Review, a weekly newspaper, at Decatur, Illinois; and the Evening Courier, a daily newspaper, at Urbana, Illinois. The respondent also owns the controlling stock of East Shores News- papers, Inc., a corporation engaged in publishing, editing, printing, and distributing the East St. Louis Journal, a daily newspaper, at East St. Louis, Illinois. . The present controversy involves only the respondent's Decatur newspapers. The average daily circulation of the papers published at the Decatur plant for the period from March 1, .19375* to, Marc] 1. 311 1938, was 45,698 copies; the average Sunday circulation. of the Sun- day Herald and Review for the same period was 40,379 copies. The average distribution of such newspapers to points, outside the State of Illinois was approximately 224 copies daily and 238 copies on Sundays. The respondent is a member of the Associated Press and subscribes to and receives news, features, and photographic services by teletype and mail from International News Service, Associated Press, King Features Syndicate, Inc., and Wide World Photos. These agencies collect their materials from all parts of the country and the world. During the period from March 1, 1937, to ' March 31, 1938, the re- spondent received and published 74,781 inches of advertisements from advertising agencies located outside the State of Illinois. Such advertisements included those of such advertisers as Liggett and Myers Tobacco Company, American Tobacco Company, National Distillers Products, General Motors Corporation, Old Quaker Com- pany, the Wilken Family, Incorporated, Seagram Distillers Corpora- tion, Ford Motor Company, and the. Chrysler Corporation. For the 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same period it published 500,337 niches of local advertisements. From March 1, 1937, to March 31, 1938, it purchased approximately $121,000 worth of newsprint, most of which was shipped to the Decatur plant from Canada. During the same period the respondent purchased repair parts for its composing room valued at approxi- mately $1,600. The respondent obtained 50 per cent of this material from outside the State of Illinois. II. THE ORGANIZATION INVOLVED Decatur Newspaper Guild is a labor organization affiliated with the American Newspaper Guild, which in turn is affiliated with the Committee for Industrial Organization,' herein called the C. I. O. The Guild admits to membership full-time editorial employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The complaint alleges, and the answer denies, that on and after May 5, 1937, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Prior to 1937 some employees of the respondent were members of the Guild. The Guild did not, however, seek to negotiate with the respondent on their behalf until that year. During the early part of. May, 1937 the parent organization of the Guild, the American News- paper Guild, sought bargaining relationships with the respondent on behalf of the full-time editorial employees engaged on the re- spondent's newspapers in Decatur, Urbana, and East St. Louis, Illi- nois. The credible and, in some instances, undisputed testimony con- vinces us that following the demand of the American Newspaper Guild the respondent sought to discourage the employees at its De- catur plant from becoming or remaining affiliated with the Guild. There can be no doubt of the respondent's hostility toward the American Newspaper Guild and its affiliates. Thus as early as 1935 Edward Lindsay, editor of the Decatur Herald and of the Daily Review, a supervisory employee of the respondent, stated to Charles Swart, then employed by the respondent on its East St. Louis news- paper, in a conversation about the American Newspaper Guild, that "he didn't want any organization coming between him and the mem- bers•of his staff and that no organization was going to tell him how to run the news room." In December 1936 Lindsay stated to Swart that Ray Kringle, then president of the Guild, and Karl Pretshold, a 1 Now the Congress of Industrial Organizations. DECATUR NEWSPAPERS, INCORPORATED 493 member, were ungrateful to Lindsay in that they engaged in Guild activity. The respondent's hostility toward the Guild is further revealed by Lindsay's testimony in this case. Thus he asserted at the hearing that the American Newspaper Guild "was a dangerous thing in newspaper offices" and he attributed such danger to its affiliation with the C. I. 0. Lindsay admitted on the witness stand that he had made substantially similar statements to employees at Decatur and that he had advised new employees at this.plant to delay joining the Guild for at least 6 months. The record contains other evidence showing .'that the respondent. sought, by anti-union statements to employees and by other coercive action, to thwart the Guild. Shortly after the American Newspaper Guild presented its request for collective bargaining in May 1937, a staff meeting of the re- spondent's Decatur employees was called. At this meeting Sam Tucker, editor and director of the respondent and its representative at subsequent negotiations with the Guild, gave a talk. In substance he informed the assembled employees that membership in the Guild was incompatible with their individual and professional interests and that a union member "could not be a good newspaper man." Shortly thereafter, Lindsay learned that Swart, employed at the Decatur plant by this time, was president of the Guild. Lindsay summoned Swart to his office and stated that Swart's interest lay with the respondent rather than with the Guild, and further that the respondent could not retain an active Guild member in Swart's posi- tion of confidence and privilege. Within a short time thereafter the respondent transferred Swart from his position of roving reporter to the less desirable City Hall "beat," allegedly so that Swart could give instruction to another re- porter assigned to the City Hall. The evidence shows that Swart remained on this "beat" until July 10, 1937, the day he and other employees went on strike. In view of Lindsay's threat to Swart, it is clear and we find that by the transfer the respondent sought to discourage activity on behalf of the Guild. Harley Lewis, the respondent's photographer at Decatur and chairman of the Guild membership committee, testified that in May or June 1937 Lindsay offered Lewis' activity on behalf of the Guild as a reason for denying him a wage increase. Shortly thereafter, according to Lewis, Lindsay came to him and said : You have insisted on sticking your neck out .on this Guild business in spite of the precautions I have given you, it would be better- if you look around and see if you can find another job because I can't go through with the various promises I have made and your future just no longer exists with this paper. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing Lindsay denied having made these statements to Lewis. In view, of Lindsay's statements to Swart and his own testi- mony, hereinabove set forth, we credit the substance of Lewis' testimony and find that Lindsay sought to coerce Lewis into aban- doning the Guild by threats with respect to the terms and tenure of his employment. We find that by the above-mentioned acts, including the state- ments of Sam Tucker and Edward Lindsay, and the transfer of Charles Swart, the respondent has interfered with, restrained, and coerced 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, as guaranteed in Section 7 of the Act. B. The alleged refusal to bargain 1. The appropriate unit The Guild claims that the full-time editorial employees of the respondent at Decatur, exclusive of supervisory employees, con- stitute an appropriate unit. The respondent interposed no objections to this unit. We find that the full-time editorial employees of the respondent on the Decatur. Herald, the Decatur Daily Review, and the Sunday Decatur Herald and Review, exclusive of supervisory employees, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to employees of the respondent the full benefit of the right to self-organization and collective bargaining and will otherwise effectuate the policies of the Act. 2. Representation by the Guild of the majority in the appropriate unit The complaint alleges, and the answer -denies, that on various dates between June 16 and July 22, 1937, the respondent refused, and at all times thereafter has refused, to bargain collectively with the Guild. During the period between June 16 and July 22, 1937, inclusive, the respondent employed a maximum of 31 employees within the appropriate unit.2 The undisputed evidence shows that 2 The respondent's pay roll introduced into evidence shows that it employed 38 editorial employees at Decatur, as of June 16, 1937. Of these, two were pensioned employees, seven were supervisory employees , while three were part-time employees . Thus it appears that, as of June 16,• there were 26 employees within the appropriate unit. On June 21, 1937, the respondent hired 4 full -time editorial employees and on June 28 an additional full- time editorial employee , making a total of 31 employees within the appropriate unit. DECATUR NEWSPAPERS, INCORPORATED 495, during this period a minimum of 16 employees in the appropriate unit had designated the Guild as their collective bargaining agent.3 Accordingly, we find that between June 16 and July 22, 1937, inclu- sive, the Guild was the duly designated representative of the majority of the respondent's employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. 3. The alleged refusal to bargain On June 13, 1937, the Guild requested the respondent to enter into collective bargaining negotiations. The respondent agreed to meet with the Guild. Accordingly several conferences were held between June 22 and July 22, 1937. . At the first conference held on June 22, the Guild submitted ti proposed contract embodying some 21 terms. The Guild's demands included, among other things, the Guild shop.' The respondent rejected this demand and stated : In regard to your first point, a closed shop is out of the question. There is no chance to talk to us about that . . No one can sell me on the day when the editorial department would be made up of C. I. O. members. I cannot see how it can be done.5 The other demands were also discussed but no meeting of the minds was reached as to any item. At subsequent conferences held on June 25, June 29, and July 1, the respondent and the Guild dis= cussed the 21 terms in detail without arriving at an understanding. 3 Prior to June 16, 15 employees within the appropriate unit were dues-paying members of the Guild , one employee had applied for membership therein, and another had applied and paid an initiation fee in December 1936, but had paid no dues thereafter . On July 15, 1937, four newly hired full-time editorial employees applied for membership in the Guild. 4 The Guild shop is defined on this record as a plant in which membership in the Guild becomes a condition of continued employment within 30 days from the date of hiring of a new employee. 5 The respondent made similar statements at subsequent conferences when discussing the Guild shop . Thus on June 29 the respondent objected to the Guild shop, stating that the freedom of editorial expression was involved . Notwithstanding the Guild's objection that the freedom of editorial expression was not involved , the respondent expressed its position on this point as follows : Notwithstanding protestations , the freedom of editorial expression is involved . . . where a man is not a newspaper man but primarily a labor agitator first and a newspaper man second [ his] value as a newspaper man is seriously impaired . . . I think . . . the newspaper . . . demands first of all [that] it can face the subscriber with a confident statement that it is presenting news and opinions that are not subject to any loyalty and bias that could compete with the loyalty of the newspaper to those customers . . . I would say that we cannot tolerate a writer who has allegiance or pre-commitment to the Farmer -Labor Party, trade union , or anything like that. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent had submitted a counterproposal with respect to wages at the conference of June 25, but the Guild rejected it at the conference of June 29. On July 8 the respondent submitted a broader counterproposal dealing with several, subjects covered by the Guild's proposed agreement. The committee representing the Guild expressed its disapproval of the respondent's counterproposal but agreed to submit it to the -general membership of the Giiild. On July 9 the Guild rejected the respondent's counter-offer and author- ized its executive committee to call a strike at a date to be set by the executive committee, On the morning of July 10 Julius Klytlian, vice president of the American Newspaper Guild, and H. C, Schaub, president of the respondent, met in an effort to prevent the strike. They reached an apparent agreement on a proposal to be submitted to the nego- tiating committees of the respondent and the Guild. The two coin- mittees met in conference that afternoon. At this conference the respondent' and the Guild could not, agree- on the terms of the-- under- standing reached by Klyman and Schaub. The respondent took the position that the Guild had consented to the respondent's counter- proposal of July 8, as modified by a so-called security clause 6 The Guild took the position that further changes were to be made in the counterproposal. The respondent offered the Guild the choice of consenting to the counterproposal of July 8 and the security clause or of continuing negotiations without advance commitment by the respondent to the security clause 7 The respondent and the Guild discussed their respective contentions but no agreement was reached and the meeting ended at 7 p. in. Within an hour there- after the executive committee of the Guild declared the strike in operation. Sixteen editorial employees went on strike. The plant remained closed for several days. On July 15, pursuant to a request of press- men and typographical unions and of the Illinois State Department of Labor, the respondent and the Guild resumed their conferences. The Guild submitted its original proposal. The respondent again rejected the Guild shop. It also rejected the 5-day 40-hour demand of the Guild but agreed to obviate the Guild's objections to a 6-day 40-hour week. Other terms were discussed at length but no meeting of the minds was reached. At the close of the conference the re- , The security clause provided as follows : no discharges of editorial employees except for gross misconduct or insubordination ; no intimidation because of Guild membership ; no economy lay-offs during the first 6-month period ; thereafter economy lay-offs to be limited to two employees for the succeeding 6 months ; no person with more than 2 years' service with respondent to be laid off for reasons of economy and any employee laid off for reasons of economy to be given preference over new employees. 4 The evidence is in conflict as to whether the respondent gave the Guild this second alternative. We are satisfied from the record that both alternatives were presented. DECATUR NEWSPAPERS, INCORPORATED 497 spondent agreed to submit a counterproposal at a meeting to be held the following day. At the July 16 conference the respondent submitted in substance its counterproposal of July 8. The Guild inquired whether the respondent would accept the security clause. The respondent i e- jected this clause on the asserted ground that the Guild had filed charges with the Board and that therefore the employees were "going to have all the security in the world." The Guild rejected the re- spondent's counterproposal and offered to submit a modified pro- posal at the following conference. The respondent and the Guild met again on July 17. The Guild .deleted seven of its orignal demands, substituted the security clause for the Guild-shop provision, and made various other changes in its proposals. The respondent stated, however, that the counterpro- posal of July 8 represented its final offer. A further meeting was held on July 19, but the position of the parties remained unchanged. The respondent offered to submit the dispute to arbitration. The Guild, however, declined this offer. The respondent and the Guild held their final conference on July 22. At this meeting the respondent detailed its reasons for rejecting the proposals of the Guild,' as modified on July 17. The respondent persisted in rejecting the security clause on the asserted ground that it might be the cause of "some misunderstanding." The Guild took the position that there were a number of differences between the respondent and the Guild but that it was "useless , to discuss other clauses," since agreement was impossible so long as "we haven't got security." The meeting closed without any understanding having been reached. While under the circumstances recited above we entertain doubts of the respondent's bona fides," nevertheless we are not convinced of the respondent's bad faith, since the respondent engaged in numerous conferences and extended discussions with the Guild with respect to the Guild's demands, presented counterproposals and made conces- -ions, and finally offered to settle the labor dispute by arbitration. Upon the basis of this record we are unable to conclude that the respondent did not strive to reach an understanding with the Guild or that the respondent refused to embody any understandings reached in a signed agreement. Accordingly, we find that the respondent did not refuse to bargain collectively with the Guild. We find fur- 8 The Trial Examiner , in finding that the respondent had not negotiated in good faith, laid stress on the fact that the respondent published its counterproposal of July 8 on the plant bulletin board . Upon this record it is clear that the respondent, by such posting, did not seek to "undercut" the representative authority of the Guild. Cf. National Labor Relations Board V. Remington-Rand, Inc., 94 F. (2d ) 862 (C. C. A. 2d ), cert. den. 58 S. Ct. 1046. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ther that the strike was not caused or prolonged by unfair labor practices of the respondent. C. The refusals to reinstate We have noted above that 16 employees went on strike on July 10, 1937, following the failure of the respondent and the Guild to. reach an understanding with respect to wages, hours of work, and other conditions of employment. We have also found that this strike: was not caused or prolonged by unfair labor practices of the re- spondent. On or about July 27, 1937, three striking employees applied for, and received reinstatement, one striking employee left Decatur to secure employment elsewhere , and it appears from the record that one other striking employee abandoned the strike, although the record does not reveal the circumstances of such abandonment. On August 5, 1937, the Guild notified the respondent of the ter- mination of the strike and inquired whether or not the remaining striking employees could obtain reinstatement . The respondent agreed to and did reemploy these striking employees with the excep- tion of Charles Swart, president of the Guild, and Harley Lewis, chairman of the Guild membership committee and otherwise active therein. The complaint alleges and the answer denies that the failure to reinstate Swart and Lewis was discriminatory . The Trial Examiner so found,and. the respondent takes exception thereto. The record establishes the following. On July 19 and 22, 1937, the respondent expressed its willingness to reinstate all the striking employees without exception. On July 29, 1937, Swart and Lewis were arrested and charged with having that day attacked James Patton, one of the striking employees who had returned to work on or about July 27. On July 29, 1937, the respondent investigated the charge against Swart and Lewis and concluded that they had in fact assaulted Patton. The respondent's board of directors thereupon resolved not to reemploy Swart and Lewis. The respondent's above-mentioned interference, restraint , and co- ercion with respect to Swart, Lewis , and its other employees, prior to the strike, raises some doubt that the respondent refused to rein- state Swart and Lewis because of their alleged assault upon Patton. Nevertheless in view of the respondent's expressed willingness to reinstate these two striking employees shortly before the alleged attack, and all the circumstances surrounding this incident, we con- clude that the respondent did refuse to reinstate Swart and Lewis for that reason. , We also find that the respondent had reasonable grounds for believing that Swart and Lewis engaged in the assault. i DECATUR NEWSPAPERS, INCORPORATED 499 Under the, circumstances of this case we hold that such refusal did not constitute a violation of Section 8 (1) or (3) 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 Having found that the respondent, has interfered with,'restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, we shall order it to cease and desist therefrom and take certain affirmative action. We shall dismiss the complaint as to alleged unfair labor practices within Section . 8 (3) and (5) of the Act. 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. Decatur Newspaper Guild is a labor organization within the meaning of Section 2 (5) of the Act. 2. 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. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. The respondent has not engaged in unfair labor practices with- in the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Decatur Newspapers , Inc., Decatur, Illinois, and its officers, agents, successors, and assigns shall: 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from in any manner interfering with, re- straining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose 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) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees in conspicuous places throughout the editorial depart- ment, stating that the respondent will cease and desist as aforesaid; (b) Notify the Regional Director for the Thirteenth Region (Chicago, Illinois) in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FUTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair' labor practices within the meaning of Section 8 (3) and (5) of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.