Newark Morning Ledger Co.

In the Matter of NEWARK MORNING ' LEDGER COMPANY and AMERICAN NEWSPAPER GUILD Case No. C-1033.-Decided March 23, 194+0 Newspaper Publishing Inadusttil-Discriniinnatioa• discharge for union leader- ship and activity; (Leiserson dissents) complaint should not have issued In- itially in view of collective bargaining agreement between employer and union, and while discharge involved occurred after signing of contract it grew out of internal differences in union antedating contract-Retnstatenrent Ordered-Back Pay: awarded-Evidence: background : conduct otherwise constituting unfair labor practices but not alleged in complaint, properly ruled admissible by Trial Examiner as "background" to discriminatory discharge; ( Leiserson dissents) acts otherwise constituting unfair labor practices but unsupported by allegations of complaint should not be considered as background in decision where acts occurred prior to date when collective bargaining agreement between union and employer was signed Mr. Daniel Baker, for the Board. Mr. Charles Goldman, Mr. Burton Pike, and Mr. Sidney Cutler, of New York City, for the respondent. Isserman, Isserman, & Kapelsohin, by Mr. Abraham J. Isserman, of Newark, N. J., for the Guild. Mr. Harry Brownstein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by American Newspaper Guild, herein called the Guild,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued a complaint, dated March 17, 1938, against Newark Morning Ledger Company, Newark, New Jersey, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. IAmerican Newspaper Guild, Newark Newspaper Guild, and the Ledger Unit thereof are at times hereinafter collectively referred to as the Guild. See Section II, infra. 21 N. L. R. B , No. 95. 988 NEWARK MORNING LEDGER COMPANY 989, A copy of the complaint accompanied by notice of hearing thereon was duly served upon the respondent and upon the Guild. With respect to the unfair labor practices the complaint alleged in substance that the respondent discharged and refused to reinstate Agnes Fahy, an employee of the respondent, because she joined and assisted the Newark Newspaper Guild, a local of the Guild herein called either the Guild Local or the Local, and participated in con- certed activities for the purpose of collective bargaining and other mutual aid and protection, thereby discriminating in regard to the hire and tenure of employment of said employee within the meaning of Section 8 (3) of the Act, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Sec- tion 7. The complaint further set forth in paragraph 6 thereof, and in related allegations of paragraphs 8 and 9, that the respondent urged, persuaded, and warned its employees from and after July 1937 to re- frain from becoming or remaining members of the Guild Local, and kept raider surveillance the meetings and meeting places of members of said labor organization in its employ, thereby and by other acts, interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. On March 31, 1938, the respondent filed its answer admitting that it discharged Fahy, but denying generally that it had engaged in any of the unfair labor practices alleged in the complaint. The answer averred as a separate defense that the charge upon which the complaint issued was insufficient for failure to state facts as required by the Act and by National Labor Relations Board Rules and Regulations-Series 1, as amended, herein called the Rules and Regulations, and, therefore, thq complaint was insufficient. Prior thereto, on March 21, 1938, the re- spondent made request of the Regional Director for a copy of a certain affidavit of Fahy, the employee mentioned in the complaint, which affidavit had been referred to in the charge, and also made application for a bill of particulars with respect to the allegations of the complaint. The affidavit in question was incorporated by reference into the charge, and set forth in detail various facts relating to the unfair labor prac- tices charged. On April 16, 1938, a copy of the affidavit was furnished the respondent. On July 15, 1938, the respondent was informed by the Regional Director that if it wished to urge its application for a bill of particulars, it should do so before the Trial Examiner at the hear- ing mentioned below. Pursuant to notice a hearing was held at Newark, New Jersey, from July 22 to September 2, 1938, both inclusive, before Waldo C. Holden, 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 introduce evidence bearing upon the 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues was afforded all parties. At the beginning of the hearing the respondent moved that the proceedings be dismissed, for want of a sufficient charge and complaint, as set forth in its answer, and also moved that the hearing be continued. It based these motions pri- marily upon its failure to, receive the bill of particulars previously requested, which it further moved be granted to it. Counsel for the Board stated for the record that the respondent had been furnished the affidavit of Fahy setting forth "all the facts . . . that . . . [the respondent] could possibly have achieved or gained by virtue of a bill of particulars." 2 The Trial Examiner granted a continuance of the hearing until July 25, 1938, and otherwise denied these motions. We hereby affirm these rulings of the Trial Examiners The respond- ent further moved that the Trial Examiner be disqualified from con- ducting the hearing and that the Board or a specially designated Trial Examiner hear the case in his stead, on the ground that Fahy, the employee involved, is a sister of the general counsel to the Board. The Trial Examiner denied this motion. We think the Trial Exam- iner properly ruled in effect that the proceedings herein should be conducted in accordance With the Rules and Regulations. At the close of the Board's proof the Trial Examiner granted a motion by the respondent to strike all allegations of the complaint, particularly those of paragraphs 6, 8, and 9 in so far as they related to unfair labor practices, within the meaning of Section 8 (1) of the Act, other than the allegedly discriminatory discharge of Fahy. He denied a motion of the respondent to strike from the record, for want of alle- gation in the complaint, all evidence adduced with respect to acts and conduct of the respondent through its officers and agents occurring prior to July 1937 which might be held to constitute unfair labor practices under the Act, and ruled that such evidence properly was admissible as background in the case. He denied other motions of the respondent to strike other paragraphs of the complaint and to dismiss the complaint. At the close of the hearing counsel for the Board moved that the pleadings be conformed to the proof in regard to names, dates, and similar matters. This motion was granted. During the hearing the Trial Examiner refused to admit to the record certain documentary proof offered in evidence by the respondent as 2 In arguing the respondent's motion for a bill of particulars and for a continuance counsel for the respondent indicated that if Board's counsel would "state for the record that . . [the affidavit of Fahy] represents the confines of this case," the respondent would not press these motions Counsel also said that he would be satisfied if the information which he requested in the bill of particulars were given the respondent "either in the form of a charge, complaint, or bill of paiticulais." We are of the opinion that the charge and incorporated affidavit of Fahy and the complaint, gave the respondent ample notice of the unfair labor practices of which it stood charged. Moreover, there is no showing wherein the respondent was prejudiced by the rulings of the Trial Examiner 3 See Hatter of National Supply Company and Steel Workers Organizing Committee, 16 N. L R. B 304 Moreover, the charge incorporated by reference Fahy's affidavit, here- tofore mentioned NEWARK MORNING LEDGER COMPANY 991 Respondent's Exhibits for identification 13, 39, 72, 74, and 77, and certain oral testimony by a witness, one Winn; whom the respond- ent called, as well as a certain document offered by counsel for the Board at the hearing as Board's Exhibit 55 for identification. On March 8, 1940, notice was given to the parties that the Board would admit to the record and consider in evidence the aforesaid exhibits, unless cause to the contrary should appear. The parties were given leave until March 15, 1940, to file written objections and written argu- ment in support thereof to the admission of said exhibits. On March 14, 1940, the Guild filed written objections to the admission to record of the above-mentioned exhibits offered by the respondent, together with w`writteii argument in support thereof. We have considered these objections and hereby overrule them. We hereby admit Re- spondent's Exhibits for identification 13, 39, 72, 74, and 77, and Board's Exhibit, 55 for identification to the record and shall consider them as admitted to the record and in evidence. Also, the testimony of the witness Winn which was proffered but rejected will be treated and considered as testimony admitted in accordance with the offer. 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 Examiner and finds that no prejudicial errors were committed. These rulings are hereby affirmed. On September 6, 1938, pursuant to agreement of the parties at the hearing, a deposition was taken of one Newhouse, a witness for the respondent. The Board and the respondent were represented by coun- sel and participated in the taking of the deposition. The deposition has been made a part of the record herein. On November 10, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on all parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act; and recommended that the respond- ent cease and desist from such practices, and that it take certain affirm- ative action including the reinstatement of Fahy with back pay, in order to remedy the situation brought about by the unfair labor prac- tices which he found. On December 22, 1938, the respondent filed exceptions to the Intermediate Report and to the record, and requested oral argument thereon before the Board. On November 16, 1939, pursuant to notice a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The Guild and the respondent were represented by counsel, presented oral argument to the Board, and otherwise participated in the hearing At the hearing the respondent moved that the record be set aside and a new hearing had upon the complaint and answer. This motion is 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hereby denied. The respondent and the Guild have submitted briefs in support of their respective positions. The Board has considered the exceptions to the Intermediate Report and to the record and, in so far as they are inconsistent with the find- ings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Newark Morning Ledger Company, is a New Jersey corporation, having its principal office and place of business in Newark, New Jersey. It is engaged in the publication, sale, and distribution of a daily morning newspaper known as the Newark Ledger, herein called the Ledger. It employs about 160 employees. During 1937 the total average weekday circulation of the Ledger was 52,251 copies, and the total average Sunday circulation was 56,392 copies. Of this, an average of 105 copies each day of the week, or 38,325 copies for the year, were sent from the plant to points outside of the State of New Jersey. The weight of copies of the Ledger sent outside the State of New Jersey through the United States mail amounted to not less than 10,731 pounds in 1937.4 For the year ending April 30, 1937, the respondent purchased and caused to be shipped to its plant from the Dominion of Canada about 3,000 tons of newsprint costing $147,612. The respondent receives the international news services of United Press and Associated Press. The news so furnished to the respondent is obtained by these agencies from sources throughout the world, and is daily transmitted by wire from New York City directly and through branches to the respondent's plant in Newark. About 20 per cent of the news which the respondent regularly prints in the Ledger is re- ceived by it through these services. The respondent also daily fur- nishes news to the Associated Press, of which the respondent is a member, which in turn distributes by wire such portion of this news as it desires to recipients in various parts of the United States. The respondent further utilizes the services of General Press Association, a news agency located in Washington, D. C., for obtaining news reports of events in the Capital having particular interest to New Jersey resi- dents. These reports are transmitted from Washington to the re- spondent by means of telephone, telegraph, and the United States mail. The respondent, in addition to the foregoing, subscribes to and regularly receives at its plant, news, features, photographs, and * This is derived from Board Exhibit 3. NEWARK MORNING LEDGER COMPANY 993 related material which are sent to it by special messenger, express, and the United States mail from agencies rendering news features and photographic services located in Washington, D. C., New York, Penn- sylvania, Illinois, Iowa, and Ohio. Comic-strip supplements to the Sunday edition of the Ledger are obtained in printed form from Pennsylvania, whence they are regularly shipped directly to the plant in Newark. Seven or eight per cent of the total amount of space devoted in the Ledger to advertising is so-called national advertising, that is, ad- vertising placed with the respondent by advertisers located outside the State of New Jersey. For the year ending April 30, 1937, the Ledger printed 21,755 inches of national advertising. For the year ending April 30, 1938, the total income derived from such advertising was $22,565. The respondent and two other newspaper-publishing com- panies in which the respondent's publisher has a controlling stock interest, jointly operate a business agency in New York City for the, solicitation of national advertising to be placed in their respective publications. The advertising so obtained by this agency for the Ledger is regularly transmitted to the respondent from New York City over special telephone line and by messenger. H. THE ORGANIZATION INVOLVED American Newspaper Guild is a labor organization admitting to membership persons employed in newspaper work in an editorial or reportorial capacity. Newark Newspaper Guild is a local of Amer- ican Newspaper Guild composed of members of the Guild employed in Essex County, New Jersey. The Guild Local is divided into a number of "units," each consisting of members employed by a par- ticular newspaper publisher or news-service agency. The unit of the Guild Local comprising employees of the respondent is herein called the Ledger Unit or the Unit. American Newspaper Guild, Newark Ne',%vspAper Guild, and the Ledger Unit thereof are at times herein- after collectively referred to as the Guild. Each unit of a local of the Guild has its own presiding officers and elects representatives to an executive committee of the local. The purpose of the unit is to afford its constituent members an organiza- tional means for expressing their collective views and instructions to the executive committee of the local and to the local. No independent action can be taken by the unit without the approval of the executive committee of the local. The executive committee of the local is the governing body of the local and consists of the representatives elected by the constituent units of the local and of the officers of the local. The officers are elected by the membership at large of the local. Col- lective bargaining or other action in behalf of the employees of a 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particular newspaper publisher or news-service agency is not per- formed by the respective unit but by the local of winch the milt is a part, acting through the executive committee of the local. However, action by the local executive committee iii behalf of the unit is subject to direction of the unit and to ratification by the unit before becoming final. Thus the Guild Local acting through the local executive com- mittee has sole authority to act as collective bargaining representative for members of the Ledger Unit, but action of the Guild Local in this respect is subject to direction and approval of the Unit. III. THE UNFAIR LABOR PRACTICES A. Background In the latter part of 1933 the Guild Local was established as a labor organization comprising and admitting to membership editorial employees 5 of the respondent and of three other newspaper publishers at Newark. The Ledger Unit was formed at the same time. In May 1935 one Newhouse acquired a controlling stock interest, in the respondent corporation and became publisher of the Ledger. In June 1935 the Guild Local, at the direction of the Ledger Unit and acting through a negotiations comnlittee, instituted negotiations with the respondent for a collective contract covernig wages, hours of service, and other working conditions of the respondent's editorial employees. As above stated; finder the constitution of the Guild sole authority to bargain collectively in behalf of these employees was vested in the Local, although the Local had no power to bind the Unit or members thereof to a collective agreement without the Unit's consent. Upon the request of the respondent, negotiations were postponed until October 1935. About the time in June that negotiations were initiated the man- aging, editor of the respondent, one Hochstein, had a conversation concerning the Guild with one of the editorial employees who was a leading member of the Ledger Unit.° This appears to be the first As used herein the expression "editorial employees" refers to persons engaged in reportorial and editorial work. 6 At the hearing, the respondent moved, as above mentioned , to strike from the record, for want of allegation in the complaint, evidence adduced regarding acts and conduct of the respondent during this period and subsequently which might be held to constitute unfair labor practices under the Act, except the respondent s discharge of Fahy The Trial Examiner ruled that this evidence properly was admissible as "background" to the discharge and we have affirmed this ruling Although no determination or finding is 'made herein that such acts or conduct constitute unfair labor practices , nor is any order issued- herein predicated upon such determination or finding , nevertheless , these acts and conduct are considered herein to the extent to which they are material as circumstances explaining and bearing upon the discharge of Fahy. In International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with the International Association of Machinists, and Production Lodge No. 1200, affiliated with the International Association of Machinists v. N. L. R. B., 110 F (2d) 29 (C. A. D C.), enf'g Matter of The Serrick 1 orporation and International Union, United Automobile Workers of America, Local NEWARK MORNING LEDGER COMPANY 995 occasion, so far as the record shows, that Hochstein expressed himself on the subject of the respondent's employees joining the Guild. In that conversation he questioned the competency of a trade-union form of organization such as the Guild to represent editorial employees saying, "It would be a difficult matter to apply the strict measure- ments in newspaper work that are applied to crafts and trades." In September 1935 and thereafter throughout the period in which the Guild Local sought to obtain and conclude a collective agreement with the respondent, as mentioned below, Hochstein made it a prac- tice to speak from time to time with individual editorial employees about the Guild, membership in it, and its leadership. He told em- ployees that the Guild was an "unstable and radical organization" which "could not succeed"; that "it had no place in the newspaper business because of the relationship of editor and reporter"; and that it would not "last for 2 years." With respect to membership in the Guild, lie remarked to one employee that he, the employee, was a "bright young fellow" with a "future," and advised him not to become "mixed up" with the Guild. He told another employee to "forget" the Guild, another that he was "holding himself back" as a reporter by being a member of it. To one other employee Hoclistein suggested that while it might not be "wise" for the employee to with- draw from affiliation with the Guild the employee would enjoy a "good standing" with Publisher Newhouse if lie remained inactive in its affairs, became a "silent member without participating in the Guild activities." In these conversations Hoclistein singled out for personal characterization various leaders of the Guild, its president, the president of the Guild Local, members of the local executive com- mittee and members of the negotiations committee. He alluded to them as "radicals," "troublemakers," "racketeer influence," and as having "personal axes to grind." At the hearing Hochstein denied having made these statements. However, in view, on the one hand, of the consistency and forthrightness of the testimony of the numer- ous witnesses who testified to the making of these statements by Hochstein and, on the other, of the vagueness and uncertainty of Hochstein's own testimony in important particulars, as well as the opinion of the Guild which he admittedly entertained, we are unable No 459, 8 N L. R B. 621, the Circuit Court of Appeals said ( see footnote 14 of court ,opinion) • ' The Board , consistently and with judicial approval , has considered "background" evidence in unfair practice cases , particularly when , as here, it discloses a prior hostile attitude of the employer Pennsylvania Greyhound Lines, Inc, 1 N L R B 1, 23 (1935), aff d, 303 U S 261 (1938) ; Wheeling Steel Corp, 1 N. L R. B 699, 709 (1936), enforced, 94 F (2d) (1021) (C C A 6th, 1938) , National Motor Bearing Co v N. L. B B, 105 F. (2d) 652 (C C A. 9th, 1939) ; Hamilton-Brown Shoe Co. -v N L B B , 104 F (2d) 49. 52 (C C A. SO, 1939) Subsequent occurrences similarly have been taken into account National Motor Bearing Co . '. N L. R B., supra [105F (2db 6i2 (C C A 9) ] 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to give credence to his denial. We agree with the findings of the Trial Examiner in his Intermediate Report that Hochstein made these statements. We also are satisfied and find that the respondent, through Rothstein, by thus derogating the labor organization through which its employees were then engaged in collective bargaining, by suggesting to employees that success in their work was not related to their joining or being active in that union, and by defaming the union leaders, intended that its employees refrain from supporting or withdraw support from that union and sought to raise a doubt in their minds as to the trustworthiness of these leaders. We think it immaterial from the viewpoint of the relevance of this conduct to a determination of the issues involved that newspaper publishers gen- erally, as the respondent contends, then engaged in similar conduct. On October 1, 1935, the Guild Local resumed negotiations with the respondent for a collective contract to deal with wages and other working conditions of the respondent's editorial employees. At that time a majority of these employees were members of the Guild and had designated the Guild Local their exclusive collective bargaining representative. Under Section 9 (a) of the Act the Local was the statu- tory representative of all the respondent's editorial employees.', Con- ferences between the parties extended through October, November, and December, 1935. In December all the terms of the proposed contract except one relating to recognition of the Guild Local as bargaining representative were tentatively agreed upon.' The Local T The Guild Local and accordingly the Ledger Unit admitted and admit to membership all editorial employees of the respondent , excluding executives. We have found that employees within such classifications constitute an appropriate collective baigaining unit under Section 9 (a) of the Act See Matter of lllilicaulee Publishing Company and Milwaul ee Newspaper Guild (C. 1 0 ), 10 N L R B 381), Hattei of II'eelly Publicattion', Inc and Newspaper Guild of New York, 8 N L R B 76: Ct Matter of Boston Daily Record (New England Newspaper Publishing Co ) and Newspaper Guild of Boston (Ameri- can Newspaper Guild), et at , 9 N L R B 25 ; Matter of Cleveland Company, Publishes of the Cleveland News and Cleveland Newspaper Guild, Local Z (C 1 0 ) 19 N L R B , 435; N L. R B 798 On November 13, 1935, 36 of the respondent 's 51 editorial employees excluding executives , were members of the Guild, and thereby had designated the'-Local their exclusive bargaining agency . We find that all persons employed by the respondent as editorial employees , excluding executives , constituted on November 13, 1935, and thereafter, a unit appropriate for the purposes of collective bargaining , and that such unit assured to these employees the full benefit of their right to self -organization and to collective bargaining and otherwise effectuated the policies of the Act. Hence, the Guild Local was on November 13, 1935, and thereafter, the exclusive bargaining agent of all employees within such unit See N L. R B v. Piqua Munising Wood Products Co, 109 F ( 2d) 552 (C C. A 6), enf'g Matter of Piqua Munising Wood Products Company and Federal Labor Union Local 18787, 7 N L It B 782 , N L R B v Iighland Park Manu- facturing Company, 110 F ( 2d) 632 (C C A 4). enf'g Matter of Highland Park Manufac- turing Co and Textile Workers Organizing Committee, 12 N. L. R. B. 1238; N L. R B v National Motor Bearing Company, 105 F (2d) 652 (C. C A. 9), enf'g as mod Matter of National Motor Bearing Company and International Union , United Automobile Workers of Anteiica, Local No 7 a N L R. B. 409 8 The agreement as tentatively reached was for a period of 1 year . It provided that wages of the editorial employees would not be reduced or woiking houis increased; that employees would receive vacations with pay, that no editorial employee would be dis- charged except for "gross " incompetency , "flagrant" violation of professional ethics, or NEWARK MORNING LEDGER COMPANY 997 proposed that the contract expressly contain an undertaking by the respondent recognizing the Local as the sole collective bargaining representative of its employees who were members of the Guild. The respondent refused to agree to this, and stated that recognition of the Local should merely appear as a recital in the preamble of the contract.' The respondent offered by way of a counterproposal to have the proposed provision included as a term of the contract if the contract also provided that such provision should "not be con- strued to imply that either party [the respondent or the Guild Local] has the right to bargain or negotiate further during the term of this agreement, but if there shall be any bargaining, the publisher shall conduct the same with no person or agency other than the Guild [Local]." The Local refused to acquiesce in this and reported the controversy to the Ledger Unit. Thereafter the Unit approved the respondent's counterproposal and communicated its approval to the Local. However, the Local considered it unwise to proceed with negotiations on that basis. In a letter to the Unit on December 20 it stated : The clause which Mr. Charles Goldman [the respondent's attorney during negotiations] proposed to insert in a contract, qualifying the recognition clause, and which your resolution favors inserting therein, is not consonant with Guild policy, because it would not grant unqualified recognition. The Com- mittee holds that nothing short of unqualified recognition is satisfactory. The Guild cannot bind itself under a contract not to call upon the management of the Ledger, in case the interests of a member or members employed by the Ledger should at some time in the future make such a call necessary ... The Executive Committee [of the Local] has decided to sus- pend contract negotiations with the Newark Morning Ledger "extreme " insubordination ; that editorial employees discharged would be paid a dismissal indemnity"; that the respondent would interpose no objection to its editorial employees being members of the Guild and would not influence them against it ; and that the re- spondent would not enter into an individual contract of employment with any of its editorial employees 9In its brief to the Board the respondent adverts to a conference between Publisher Newhouse and its counsel regarding the inclusion of the provision for recognition of the Local in the proposed contract, as follows Accordingly, Mr Goldman [the respondent' s counsel ] consulted lir Newhouse with regard to the draft Mr Newhouse expressed some hesitancy concerning the Guild recognition clause with respect to whether , under the recognition clause , the Guild could attempt to conduct further negotiations after the contract was signed. Re- spondent's counsel then made the suggestion that the recognition clause be taken from the body of the agreement and instead be placed in the preamble among the recitations To this Air Newhouse assented . . To meet this situation. Goldman. after several telephone talks with \Ir, Newhouse, expressed his willingness to have the recognition clause placed in the body of the agreement if it were modified in such way as to clearly indicate that neither party would bargain or negotiate further during the terns of the agreement 283032-41-vol 21-64 '998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until such time as the Ledger unit decides to insist upon terns which will not violate Guild principles . . .1e Five days later Publisher Newhouse, in a speech at a staff meeting of the respondent's editorial employees, discussed the Guild Local and the respondent's negotiations with it. The record shows, and we find, that during the period of negotiations as well as thereafter the respondent at all times was fully cognizant of affairs and hap- penings within the Ledger Unit and of the business of the Guild Local relating to its editorial employees." Newhouse stated that for 3 months he had "been endeavoring to reach an agreement with the negotiations committee [of the Local] to stabilize conditions"; that when negotiations began he had been "optimistic for a speedy and happy result" and had been assured by officials of the Guild that their organization "was solely concerned with improving the economic status and assuring the economic security of its members"; that negotiations had been suspended "not because of any difference be- tween us as to economic status or economic security of the Guild inenibers," but "the belief or opinion of the Guild officials that the contract as drawn does not embrace aclniowledgnlent by the Ledger that the Guild is the sole bargaining agency for its members"; and that 4'any thought ... that under the contract as drawn the management will decline to meet with representatives of the Guild ... is either feigned or unfounded." 12 Newhouse then declared that lie would confirm "in the presence of the entire staff" the Guild's status as collective bargaining agency of its members. He continued, "Since October 1 we have been negotiating, yet we are apart on an issue that does not relate in any way to the economic advancement or economic security of the staff. Since so much time has elapsed without progress in the final stages of the negotiations, I do not 10 See footnote 13, infra none Mogelever, then a member of the Guild and the respondent's cite editor, tiatet- niced with his superior, Managing Editor Hochstein, and regularly consulted with him about matters - relating to the editorial staff Mogelevei himself occupied a supervisory position on the staff. He assigned work to the editoiial emplovees , often determined their working hours, and otherwise supervised their work Ile had authority to recom- mend persons for employment with the respondent , and was consulted on matters of discharge Mogelever testified that in his conversations with Iiochstem lie mentioned matters relating to the Guild Other of the respondent 's editorial employees also dis- cussed such matters with Hochstein The evidence establishes that meetings of the Unit were generally open and without any effort at secrecy The respondent concededly knew of the prevailing "schools of thought" within the Unit with reference to the substantive provisions of the proposed contract . Publications of the Guild regularly were brought to the respondent 's attention Hochstein admitted at the hearing that it "seemed to have been" the practice of "someone" to place on his desk The Gnald Reportci, the official publication of the Guild containing news of its locals, and "occasionally notices relating to Guild business " Newhouse and the respondent 's attorney , Goldman , both of whom participated in the negotiations , were also familiar with The Guild Reporter Hochsteni testified that he read the publication "whenevei Mr Goldman or Mi Newhouse would call my attention to something in it " 12 See footnote 9, 8 epia NEWARK MORNING LEDGER COMPANY 999 wish the staff to suffer from any uncertainty as to the question of economic security or Guild recognition." Newhouse then stated that the respondent would "guarantee" to the employees that for a period of 1 year it would abide by all the terms of the proposed contract on which the Guild and the respondent had tentatively agreed when negotiations were suspended. Among the "guarantees" was one pro- viding that the respondent would make no "individual contracts" of employment with employee members of the Guild or with non- member employees of its editorial staff whoin the Guild would admit to membership; another that it would interpose no objection to mem- bership in the Guild by any present or future employee in the edi- torial department, and would in no wise influence any present or future employee to refrain from Guild membership; and another that the respondent would discharge no editorial employee for any reason except "gross" incompetency. "flagrant" violation of profes- sional 'ethics, or "extreme" insubordination. The guarantees, New- house declared, would "hold good" whether or not a contract was consummated with the Guild Local; that "the point" lie wished "to emphasize is that your minds may be at rest; that from now until January 1, 1937, you may stand on all the guarantees . . ." He con- cluded with a statement that at no time had the respondent had "the slightest reluctance" of entering into a contract with the Guild Local. On December 27 the Ledger Unit adopted a resolution, a copy of which was sent to the executive committee of the Local, stating that in view of the assurances made in Newhouse's speech the Unit desired that all negotiations iii its behalf by the Local with the respondent be suspended for 1 year until January 1, 1937. There- after, throughout 1936, no negotiations for a collective contract were had by the Local with the respondent. We entertain no doubt that the respondent during the negotiations in December with the Guild Local sought to obtain for and reserve in itself for the period of the proposed contract, once that contract was signed. an immunity against treating with the Local as collective bargaining representative unless the respondent in its sole discretion was willing to do so.13 This proposal if accepted and adhered to necessarily would have subjected the Local to the risk of serious impairment if not destruction of itself as an effective agency for "In N L. R. B i National Licorice Company, 104 F. (2d) 655 (C C. A. 2), enf'g as mod Mattel of National Licorice Company and Ba/ery and Confectionery Workers International Union of America, Local Union 105, Greater New Yoik and Vicinity, 7 N L It B 537, at1'd as mod National Licorice Company v. N L R B, 303 U S 350, the Circuit Couit of Appeals held unlawful under the Act a provision of an employment con- tract whereby employees bound themselves to their employer not to propose any changes in the terms of the contract for the period of the agreement The court stated A party to a contract does not break it, when he proposes to the other party that conditions have so far changed as to make desirable a change of the contract. There is nothing uulawtul in that so long as it is not a masque for threatening to violate 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective action of the respondent's employees. While Newhouse in his speech characterized the understanding of the Guild Local re- garding the respondent's counterproposal as "feigned and un- founded" it is significant that the respondent did not communicate, directly with the representatives of its employees to remove the alleged misunderstanding and permit the proposed contract to be consummated. Instead, it ignored the collective bargaining repre- sentative and through Newhouse utilized the occasion of suspended negotiations pending settlement by the Local and the Unit of the internal dispute over union policy, to deal directly with the employee members of the Guild and other employees in respect to the very subject matter of the negotiations. Such action plainly was de- signed to "undercut" the authority of the bargaining representative to act for the employees and to strike a blow at its prestige and services.14 The technique of treating directly with employees who have designated a union to represent them and, here, to do so on a basis of noncontractual "guaranties," is a contradiction of any pro- fessed willingness of the employer to recognize and make a collective agreement with the union. In the spring of 1936 one of the respondent's editorial employees who was a member of the local executive committee requested of Hochstein a raise in salary. In the course of conversation the em- ployee remarked that he thought it was a "cruel and vicious" prac- the existing contract . Perhaps in labor disputes it ordinarily 'N111 be, but the iuiht to propose the change is secured by statute as part of the i fight to negotiate (Italics added In N. L . R B v The Sands Manufacturing Conipany, 306 U S 332, the Supreme Court said The legislative history of the Act goes far to indicate that the purpose of the stat- ute was to compel employers to bargain collectively with their employees to the end that employment contracts binding on both parties should be made But we assume that the Act imposes on the employer the further obligation to meet and bargain with his employes ' representatives respecting proposed changes of an existing con- tract and also to discuss with them its true interpretation , if there is any doubt as to its meaning. See also N . L R. B v American Manufacturing Conipany and Nu-Art Employees, Inc. 106 F ( 2d) 61 (C. C. A. 2), enf'g Matter of American Manufacturing Company ; Company Union of the American Manufacturing Company , The Collectii,e Bargaining Committee of the Brooklyn Plant of The American Manufacturing Company and Textile Workers' Organ- izing Committee, C. 1. 0., 5 N I. It B. 443, aff'd as mod 309 U S. 629. 14 In Matter of National Labor Relations Board v Remington Rand, Inc , 94 F (2d) 862 (C C A 2), enf'g Matter of Remington Rand, Inc and Remington Rand Joint Pro- tective Board of the District Council Office Equipment Workers, 2 N. L R B 626, the court stated of analogous action by the employer : It is plain , we tbinlc, that after an exclusive bargaining unit has taken a strike vote, it is an active interference with the exercise of its right to "bargain collectively" for the employer to undercut its authority by a vote of his own .; it is to go over the heads of the representatives to their constituents; to discredit them as repre- sentatives, to destroy their power to bargain as such See also Matter of Hopwood Retinning Company, Inc and Monarch Retnnnnig Coinpany, Inc and Metal Polishers, Buffers, Platers and Helpers International Union Local No S, and Teamsters Union, Local No 581,, 4 N L R B 922, enf'd as mod. N. L R B. v Hopwood Retinning Co , 98 F (2d) 97 (C. C A 2) ; Matter of Riles-Coleman Lnniber Company and- Puget Sound District Council of Lumber and Sanoinill Workers, 4 N L R B 679 enfd N L R B. v Biles- Coleinan Lumber Co . 98 F. (2d) 18 (C. C A 9). NEWARK MORNING LEDGER COMPANY 1001 tice for newspaper publishers to discharge employees because of their affiliation or activity in the Guild. Hochstein replied that the employee was "naive" that "leaders in the labor movement had to be resigned to losing their jobs and losing personal advancement if they insisted on fighting for the members of their organization." The employee was refused a salary increase. While Hochstein at the hearing denied making this statement, his previous anti-union statements above mentioned, as well as the circumstances mentioned below in which his anti-union attitude was further shown, convince us that his denial in this regard warrants no credence. About April 21, 1936, in a period of 1 or 2 days, the respondent tendered for execution to each of its editorial employees, except those whom it (lid not intend to retain in its employment, a so-called "individual contract" of employment. Hochstein made the tenders, either presenting the contracts to the employees at their working places or summoning them to his office for such purpose. The re- spondent did not inform or consult with the Guild Local or the Ledger Unit about this procedure., The draft contracts each recited that it constituted an agreement of the respondent with the respective individual employee, and provided for a 1-year period of employ- ment subject to termination on 2 weeks' notice, for stated compensa- tion, a 48-hour working week, and a 2-week vacation with pay. Except in six or seven instances the compensation provided was the salve as that winch the respective employees were then receiving. The workweek and vacation provisions likewise continued the exist- ing practice. The six or seven employees whose contracts provided for salary increases were informed that the rise was dependent upon their signing the contracts, and others were told they would receive an increase in the future provided they signed. The contracts con- tained no provision assuring the individual employee that the re- spondent would interpose no objection to his membership in the Guild and would not influence him to withdraw from such membership, nor any assurance against discharge except in cases of gross incompetency, flagrant violation of professional ethics, or extreme insubordination, all as contained in the tentative agreement which Newhouse had "guaranteed." Hochstein told at least one employee that by signing the contract the employee would "evidence" his "willingness to play ball with the management; would give the management assurance there would be no trouble connected with [his] ... working for the paper during the life of the contract," and frankly informed another "that the purpose of the contract was to keep the Guild from coming in; that by signing up each individual it would be obviously im- 3° Fahy the employee hen em involved, was among those not offered a contract This circumstance is considered hereinafter 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possible for the Guild to continue negotiations." Substantially all the employees who were requested to sign the contract did so. On May 4 and 7, 1936, the Ledger Unit met for the purpose of discussing the situation which had arisen as a result of the respond- ent's action in initiating and requesting execution of the individual contracts of employment. Dissatisfaction with the respondent's con- duct was expressed by the employees. It was stated by individuals present that the respondent by its acts had repudiated the "guaran- tee" it had made "not [to] enter into any individual contracts with the present or future employees in the editorial department"; that the execution of such contracts was contrary to one of the "funda- mentals" of all unions and organizations; and that the contracts in question would hinder the Guild in its future course of action to obtain an amelioration of working conditions. It also was pointed out that the respondent's action amounted to a disclaimer of New- house's assurances of "Guild protection" and of continued tenure of employment for 1 year save in the exceptional instances heretofore mentioned. The Unit unanimously resolved to request the Guild Local to discuss the matter with Newhouse through the local negotia- tion committee. On May 19, 1936, the local committee conferred with Newhouse. They told him that employee members of the Ledger Unit were dis- turbed by the general institution of individual contracts in violation of assurances which had been made. Newhouse replied that some employees on the editorial staff who were not members of the Guild had asked the respondent for an individual contract, that the re- spondent determined to grant these requests since "these employees would not be included in any contract the Guild might make after January 1," and that the respondent had decided "to offer the con- tracts, generally, because there might be others who would want them." At the hearing Newhouse testified chat he told the committee "the contract was for the benefit of the employee, not for the benefit of the management, and for the necessity of management." The committee asked Newhouse whether the respondent would cancel an individual contract upon request of the employee signer. Newhouse replied that he would not discuss the matter at that time with the Guild. The committee then inquired whether the respondent would cancel all contracts if all employee signers requested that that be done. Newhouse's answer was the same. He was asked if the indi- vidual contracts would be superseded by any collective contract which the respondent might make with the Guild Local after January 1, 1937. His answer was merely, "Any advantage in the Guild contract will go to the others." At the time the respondent requested its editorial employees to execute the individual contracts of employment, and thereafter, the NEWARK MORNING LEDGER COMPANY 1003: Guild Local was the duly constituted statutory representative of all these employees for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.16 There is no showing that the contracts of employees whom the respondent retained in its employment after April 1936, were in any manner terminated prior to the expiration date therefor 1 year later. At the hearing the respondent contended that it dis- tributed the individual contracts in pursuance of an understanding with one of its large stockholders that this would be done as a condi- tion to increasing the salaries of some six or seven employees at that time. We think it plain that the respondent's inauguration of a system of individual employment contracts for its entire editorial staff was designed to weaken unionization among these employees, to undermine the authority of the Guild Local as their exclusive collec- tive bargaining agency under the Act, and to strengthen at the same- time the vantage it had achieved the previous December in regard to. collective bargaining with the Local. By requesting individual con-- tracts of members of the Ledger Unit, among others, the respondent, struck at the essence of their organization, vii, that all matters per- taining to basic terms and conditions of employment be resolved solely through collective bargaining by the Local. In so far as the Guild_ Local was the statutory representative under Section 9 (a) of all editorial employees, the making of individual contracts by direct- dealing with these employees "undercut" the authority of the Local to act within the sphere of representation, and established a prece- dent hostile to its future action.17 Finally, by endeavoring to bind contractually each employee until April 1937 to the basic terms of- his employment the respondent manifested to its editorial staff a determination to render difficult if not wholly impossible during that period any negotiations with the Guild Local for a collective agree- ment covering such matters.18 That negotiations for such an agree- 16 See footnote 7, supra 17 In Matter of Williams Coal Company and United Mine iVoriers of America, D,ct,met No 23, 11 N. L. R B 579 , 644, an employer sought to change the terms of an outstanding- collective agreement by negotiation with individual employees , although these employees were then represented by a statutory representative Concerning such conduct the Board' said : Such a practice by an employer is completely destructive of the principles of collective bargaining, for it not only "undercuts " the authority of the chosen repre- sentative to act within the sphere of representation in regard to the modification of a collective bargaining agreement but subjects the individual employee to the very pressures which collective bargaining would obviate Senator Wagner stated , Hearing on Sen Bill 1958 , 74th Cong, 1st sess , pt 1, p 43, "To attempt to deal with his men otherwise than through representatives they have named for such purposes would be the clearest interference with the right to bargain collectively." See also footnote 14, supra. '6 We need not consider the validity of the individual contracts under the Act, nor to what extent if valid they would have precluded collective bargaining . It is of conse- quence , however , that the respondent intended in foisting these contracts upon its edi- torial staff to raise an obstacle to their bargaining through the Guild Local Employee 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment had been suspended by the Ledger Unit until January 1937 is of no particular significance. When in December 1935 the employee members of the Unit decided upon that course they did so only after Newhouse had "guaranteed" that the respondent would enter into no individual contracts with editorial employees during 1936. They assumed that this specific assurance would safeguard the integrity of the Guild as their union and as the statutory representative. Indeed other assurances which Newhouse had given were reasonably Inter- preted as directed to this end. He represented that the respondent would not object to its editorial employees being members of the Guild and would discharge no one except in certain specified cases. The making of the individual contracts violated both representations, for it manifested a hostility to the Guild and removed any restriction upon discharge except the giving of prior notice thereof. During the life of the individual contracts the Ledger Unit re- f rained from directing the Guild Local to resume negotiations with the respondent for a collective agreement. In April 1937, however, as the individual contracts were about to expire, editorial employees of the respondent discussed the institution of collective bargaining for a collective agreement which would supersede the individual contracts. As these conversations were occurring the respondent announced generally to its editorial staff that within the following '6 months the regular working week would be shortened to 5 days. The Guild had not solicited this improvement in working conditions; as stated, negotiations had not been begun. That the respondent believed that there existed sentiment among the editorial employees for a shorter working week is manifest from the remarks on that subject made by Hochstein during a speech to the editorial staff in the previous December. We are impressed with the fact, and find, that this grant in futwro of what would constitute a notable gain for the editorial employees, coming as it did when they were delib- crating whether to call upon the union to negotiate in their behalf after 11/2 years of dormancy in that respect, constituted another tactical step of the employer calculated to "head off" the necessity for its treating with the union and to emphasize its desire for direct dealing with the editorial employees.79 However, on April 26, 1937, members of the Ledger Unit so interpreted the respondent's action Negotiations for a 'collective agreement with the respondent were not resumed by the Guild Local until the individual contracts terminated 10 Concessions b^ an employer to employees under circumstances disclosing the grant as designed to undermine collective action through a legitimate union . have been observed as such in the decisions of the courts as well as of the Board In N L R B v American Potash and Chemical Corporation, 98 P (2d) 488 (C C A 9 ), cert den , 306 U S. 643, the court adverted to concessions made by the employer through grants to a company- -dominated Association at a time when the legitimate union was organizing the employees in anticipation of collective bargaining , saying For mole than a near following passage of the Act, the [emplover-dominated] Associa- tion made some attempts to gain better wages and to ieheve the unsatisfactory NEWARK MORNING LEDGER COMPANY 1005 the publisher of another newspaper in Newark reached and signed a collective agreement with the Guild Local covering working condi- tions of its editorial employees, and thereupon the Ledger Unit decided to request the Guild Local to open negotiations with the respond'ent' for a similar collective contract in its behalf. The Unit determined that the respondent should be approached on the basis that another Newark publisher had signed a collective contract with the Guild Local. Negotiations accordingly were resumed, and on August 12, 1937, the Guild Local succeeded in obtaining a collective contract. The contract recited in the preamble thereof that the Local had acted on the premises "for itself and on behalf of the editorial department employees," and provided, among other things, for a 5-day working week, minimum wages, and a prohibition against employer discrimination for membership or activity in the Guild_ There is no showing that thereafter the respondent attempted to enter into individual contracts of employment with its editorial, employees. Beginning in October 1935 and continuing throughout the entire period under review the Ledger Unit was seriously concerned with the so-called Mogelever incident. Mogelever became the respondent's city editor in September 1935 and was a, member of the Unit. As city editor he supervised the work of editorial employees, assigned work to them, and made recommendations to the respondent regard- ing their employment and discharge. In October 1935 he was in- formally -asked to resign from the Guild because of the conflict in his interests as city editor and as a loyal union member. Mogelever re- fused to do this, claiming that the request was motivated by personal reasons. In November and December 1935 while negotiations were being carried on for a collective agreement with the respondent, Mogelever bitterly castigated various members of the local negotia- tions committee and members of the local executive committee about matters then in negotiation. During that period, he, together with one Hammerslag, an employee of the respondent, led what the re- spondent in its brief describes as the "conservative" faction of the Ledger Unit. In January 1936, following discontinuance of negotia- tions with the respondent, eight employee members of the Ledger Unit formally petitioned the Guild Local to expel Mogelever as well as Hammerslag from membership in the union, on the ground that housing situation in Trona These moves were for the most part fruitless until concessions on both matters were made by iespandent in April 1936, the high point of the Borax and Potash Workers ' Union organization campaign The Board justly in- ferred that such success , coming after a long period of chronic inability to bargain suc- cessfully, was due to respondent's desire to head off the American Federation of Labor union rather than to any pressure from the Association See also N. L R B. v Falk Corporation, 102 F (2d) 383 (C C A 7), enf'g Matter of The Falk Corporation and Amalgamated Association of Lion, Steel and Tin Workers of- North America, Lodge 1528, 6 N L R B 654. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the "interests" of these individuals were "definitely with the publisher against the American Newspaper Guild." 211 The written petition stated that "the record of [Mogelever's and Hammerslag's] .. . actions during the period ending with the suspension of negotiations with S. I. Newhouse 21 . .. furnishes ample proof of this charge." A signed statement particularizing the respects in which the two men allegedly had allied themselves with the respondent and against -their union was submitted to the local executive committee .21 The statement charged the men with having engaged in acts designed to prevent the Guild Local from obtaining any contract with the re- spondent which would confer substantial benefits upon employee -members, having caused the suspension of negotiations and disunity in the ranks of the Ledger Unit, and with constituting themselves agents of the respondent to thwart the purposes and aims of the Guild and to deprive the respondent's employees of the benefits of collective action . A written answer to the petition was filed by Mogelever and Hammerslag with the local executive committee . On January 15, 1936, the local executive committee sustained the charges and directed that Mogelever and Hammerslag tender their resignations from the Guild.23 The two men refused to do this , and a "trial board" con- sisting of five persons elected by and from the membership at large 'of the Local was then constituted to hear and determine the charges against them in accordance with the constitution of the union. From February to May 1936 hearings were held before the trial board and in December 1936 a decision was reached . The trial board dismissed the petition against Hammerslag, but found that Mogelever 's inter- est,, in the Guild lay with the respondent -employer and against the union, that certain of his actions in the Guild were motivated, as charged, by a desire to favor the respondent's interests and not those of the employee members. The trial board accordingly ruled that -Mogelever be expelled from membership. Mogelever appealed to the membership at large of the Local, and it confirmed the action of the trial board . Without exhausting his right of further appeal in the organization as provided in the constitution of the Guild '24 Mogelever in January 1937 filed a bill of complaint in the Court of Chancery of New Jersey praying for an injunction to restrain the Guild Local 21 The constitution of the Guild provided : ` No member whose interests are deemed by -the Unit or by the Executive - Committee of the Guild to lie with the employer shall be allowed to remain a member 21 Publisher of the Ledger 2= Board Exhibit 21• 23 Membei s of the local executive committee who wet e employees of the iespondeut cast no vote on the matter of expelling the two men 24 The constitution of the Guild , introduced in evidence , provides that "in the event -of dissatisfaction with the decision of the trial board appeal may be carried to the D C [District Council] of the I E B [International Executive Board] which shall make a -final finding , subject in the case of a D C to review by the I E B the decisions 'of the I E B may be appealed to the next ensuing national convention [of the Guild] " NEWARK MORNING LEDGER COMPANY 1007 from expelling hini.25 On September 15, 1937, the court adjudicated that Mogelever "after a fair trial, i\ as expelled from the defendant Guild in accordance with the constitution" and, accordingly, entered its decree dismissing the bill of complaint, with costs including coun- sel fees.26 The respondent learned of the decision the following day. The record shows that the respondent knew from the outset of the steps taken within the Guild to expel its city editor from the union, and assisted him in his attempt to defeat expulsion. After the petition for ouster was submitted to the local executive com- mittee Hochstein in a conversation with one of the editorial em- ployees inquired whether the employee intended to participate in any union trial upon the charges , which Hochstein characterized as "ridiculous." Hochstein was furnished , and discussed with Mogelever shortly after it was written, a statement prepared on January 29 , 1936, by Mogelever and Hammerslag for circulation among members of the Guild setting forth in detail their defense to the charges. Hochstein loaned Mogelever $700 to defray expenses arising in connection with Mogelever's appeal in the Guild and his action before the court to prevent his ouster. In January 1937 the respondent itself loaned $300 to Mogelever to meet court expenses incident to his ouster after being fully apprised of the circumstances of the expulsion and of Mogelever 's intention and purpose in seek- ing an injunction.27 On the morning of September 22, 1937, a week after the decree of the Court of Chancery of New Jersey in the Mogelever suit and about 1 month after the execution of the collective agreement With the Guild Local, the respondent published on the editorial page of the Ledger am open letter to William Green, president of the Ameri- can Federation of Labor, written by Hochstein , prominently fea- tured, and dealing in part with the respondent's labor relations Mogelever v Newark Newspaper Guild, 122 N J . Eq 316, 194 Atl 6; aff'd 124 N. J Eq 60 , 199 AtI 56 26 Upon an appeal by Mogelever to the New Jersey Couit of Errois and Appeals, that court on May 11, 1938, affirmed the decree dismissing the bill, Mogele-er v Newark News- paper Guild, 124 N J. Eq . 60, 199, Atl. 56. In its opinion the appellate court said : We find no justification for the flouting of the tribunal set up with the society [the Guild] for the adjudication of a controversy such as this-one that involves a funda- mental policy of the subordinate body , i e , whether the interests of the member lay with the employer -publisher as against the Guild and its members, and therefore peculiarly for the cognizance of the organization itself in the first instance The date when the loan was made to Mogelever by Hochstein does not appear from the record , but it is clear that it was made sometime during the course of the ouster proceeding and for the purpose above mentioned The loan was indefinite In character, no provision being made for repayment , and apparently no security od any written evidence of indebtedness was offered or demanded Mogelevei testified that in March or April 1938 he repaid $200 of this debt , and in September 1938 paid $275 for counsel fees assessed against hint to the court, both payments being made not by check but by cash with money kept in his home which he had saved In so far as the respondent was con- cerned, the respondent appears to have made loans to other employees as well , although the purpose of said advances is not shown . The loan of $300 which it made to Mogelever, above mentioned , had not been repaid at the time of the hearing 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Guild, the contract that had been signed, and the Mogelever incident. The letter stated in part as follows : We see by the papers that you [Green] are planning a new union of news writers in opposition to the Newspaper Guild, which is affiliated with Mr. John L. Lewis' C. I. 0.28 Your an- nouncement, we confess, is somewhat disturbing to us, inasmuch as we have a collective bargaining contract with the Newspaper Guild, which was arrived at after two years of arduous-if not always patient negotiation. We would like to tell someone how we feel about all this organization and counter-organization that is going on in our midst. Under the Wagner Labor Relations Act, which you suc- cessfully sponsored, we believe it is illegal for us to discuss this matter with our employees . . . Now, Mr. Green, as we have already stated, we have a col- lective bargaining agreement in our office with the Newspaper Guild . . . This agreement applies trade union standards such as have been applied in the past to manual and mechanical workers to news reporters, writers and editors. Our editorial employes once upon a time were professional workers, but the law changed that and we, of course, want to be law-abiding- even though the law makes it much more difficult to create the daily news report for our readers. . . . As we have already told you, the Guild numbers about 20 members in our office. A little more than that number seem to be possessed of a stubborn streak and have failed to march with Mr. Lewis... . Among the unorganized members of our office, there has been a growing feeling that they need an organization to protect themselves against organization.. . . ... Under your Wagner Act, we are commanded to be an ostrich, so far as the class struggle in our office is concerned. We are not to encourage unionism and we are not to discourage unionism. We are not to be interested in the opinions of the members of our staff and we are not to encourage any trend or tendency in their thinking. Sometimes this injunction to be an ostrich is embarrassing. ... We confess, however, that we have not yet acquired this perfect and legal neutrality. We have just learned that one of our employes, who was a member of the Guild and who failed to express adequate dislike for us as a class enemy, has' been ' This refers to John L Lewis, president of the Congress of Industrial Organizations with which the Guild is affiliated. NEWARK MORNING LEDGER COMPANY 1009 expelled front membership because of his wayward state of mind. We evidently failed to earn his class hatred. Now, Mr. Green, we do not want you to think that we are complaining. . . . We are having a fairly good time of it and are intrigued by the problem of creating an etiquette for dealing between class enemies... . ... Now, we are concerned with the possibility that the 25 or so non-Guild members of our editorial department and pos- sibly a few of the Guild members may join your union because of its reputation for moderation. . . . ... Now, Mr. Green, friendliness may be a virtue quite de- sirable. Enmity may be very unpleasant. Under the circum- stances, however, we prefer a legalized and therefore orderly enmity, such as exists under our Guild contract, to a strife-torn friendliness such as would come to us if you organized our em- ployees.. . . . . . We appreciate your emotive and thank you, but at the same time ask you to PLEASE desist from your kindly min- istrations and let bad enough alone. . . . This is not a time, Mr. Green, for friendly and temperate relations. They are too trying on the nerves. This is a time for armed truces. We do not mind the bayonet staring us in the face, when we know that it won't strike at least until a certain specified date. Also on September 22, 1937, Fahy, the employee mentioned in the complaint, was discharged under circumstances more particularly hereinafter set forth. B. The discriminatory discharge Agnes Fatty was discharged by the respondent on September 22, 1937. She had been on its editorial staff for over 8 years and at the time of her dismissal was the third oldest employee in point of serv- ice. She then was employed principally on "rewrite" work. Fahy became affiliated with the Guild in 1933 when the union en- rolled?its first members in Newark. She was active in the affairs of the Guild Local, and shortly after the time that Newhouse acquired control. of the respondent corporation rapidly rose through various official positions in the Local until in August 1937 she assumed its presidency. In the same month she was appointed by the mayor of Newark to membership on the Newark Labor Relations Board. Within the Ledger Unit Fahy consistently adhered to a militant trade-union point of view. When on December 27, 1935, the Unit deliberated the question of suspending negotiations with the respond- ,ent for a period of a year and relying on the."guarantees" announced 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Newhouse, the effect of which action would be to accord the re- spondent the .-ery immunity against treating with the Guild Local for a year which we found lay at the bottom of the dispute over the recog- nition clause, Fahy urged upon the Unit that the negotiations be suspended only "indefinitely" and not for any such fixed duration. She was one of the eight employee members of the Unit who a few days later signed and submitted to the Local the petition for Mogel- ever's and Hammerslag's expulsion from membership, for the reason, already mentioned, that the interests of these men in the Guild were to favor the respondent's and not the employees' advantage. At a meeting of the Ledger Unit in February 1936 she proposed that an inquiry be made of the respondent through the Local concerning the termination of employment of certain editorial employees .21 The evi- dence shows that within the preceding 21/., months there was a sever- ance of the employment of 10 employees who had represented in the Unit counsels the same point of view which Fahy entertained 11 The respondent early became aware of Fahy's individual militancy and views on union matters.31 In April 1936 it refrained from request- ing her to sign an individual employment contract although as above mentioned all editorial employees except those whom the respondent did not intend to retain in its employ were asked to do so. Fahy was the only employee singled out for such preferred treatment. Some time later Hoclistein informed her that no contract had been requested be- cause he "did not think she would sign it." At the hearing he stated that there was "no reason for the respondent's action] that I now know of." We think it plain that the respondent tendered her no contract because it recognized that her loyalty to the Guild and her consistent adherence to its principles would render a rejection inevitable and any tender futile. Nor was Fahy's devotion thereafter to her chosen course of aggressive trade-unionism within the Guild unknown to the re- spondent. In September 1936 about the time of her elevation to the position of secretary-treasurer of the Guild Local Fahy approached the respondent on a personal natter involving an increase in her salary. Some weeks later Hochstein told her that the respondent would grant the increase provided she wrote a letter stating that she "would do no more bargaining for a year." Fahy refused because she considered the signing of such a statement the equivalent of executing one of the ^ This proposal was tabled upon a vote taken so At the hearing evidence was introduced on the matter whether these and certain other employees were discharged by the respondent because of their militancy in the Ledger Unit. The Trial Examiner in his Intermediate Report indicated that this had occurred. No specific allegation of the complaint alleged such discrimination to be in violation of the Act and the affidavit furnished the respondent as a statement of particulars did not specifically aver the discharges as constituting unfair labor practices In any event we find it unnecessary to consider the matter, and, therefore, make no findings in that respect "Reference has heretofore been had to Mogelever's close association with Hochstein as well as to the respondent being generally well informed iegarding the affairs and business of the Ledger Unit. See footnote 11, supra. NEWARK MORNING LEDGER COMPANY 1011 respondent's individual employment contracts. Although at the hear- ing Hochstein sought to explain that the respondent merely had wished a letter of Fahy stating facts for granting an increase to be submitted to one of the respondent 's important stockholders for ap- proval, we have no doubt, and we find, that the respondent in fact attempted to utilize the occasion and the device of the letter to elicit from Fahy a written expression of willingness to subordinate her future position on union action to the transaction at hand. Six months later, as the individual employment contracts were about to, expire and discussion was being had among the respondent 's editorial em- ployees concerning the advisability of negotiating a collective agree- ment with the respondent, Fahy prompted the calling of a meeting of the Ledger Unit to consider the question. However, at a subsequent meeting of the Unit in May she recommended that it stay the begin- ning of negotiations pending the outcome of two strikes then being carried on, one by a mailers' union against the respondent and another by the Guild against the Long Island Press, a newspaper publishing company controlled by Newhouse. While the Unit did not believe that negotiations should be stayed , it adopted a resolution offered by Fahy to go on record as supporting the strike against the Long Island Press, and directed that the Guild Local be instructed to notify New- house of its position in this respect and that it demanded that the strnke,be settled. Both strikes thereafter ended and in August 1937 while negotiations for a collective agreement between the Guild Local and the respondent were proceeding, Fahy became president of the Local, as above stated, and chairman of its executive committee. While she was serving in that capacity, the first collective agreement which the Local succeeded in negotiating with the respondent was signed. Paralleling this sequence of events was the sustained prominence in connection with the Mogelever incident to which Fahy's union interests carried her. Although Mogelever was her superior on the respondent's editorial staff, she left little doubt at union meetings and deliberations that she consideed Mogelever's acts in the Guild as designed to further the respondent 's interests and not that of the employees. She felt that his ouster was essential, and firmly adhered to that position even after all others within the Ledger Unit of similar mind had had their employment with the respondent termi- nated, for one reason or another. 3' On January 15, 1936, she testified against Mogelever at the meeting held by the local executive coin- mittee to consider the charges against him and Hammerslag . During the hearing before the trial board from February to May 1936 she again appeared as a witness in support of Mogelever's ouster. In June 1937, after Mogelever applied to the Court of Chancery of New 12 See footnote 30 °upra 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jersey for an injunction to restrain his expulsion from membership in the Guild, she appeared at a hearing on the bill and presented testimony in support of the Guild's opposition to the application. As already stated, on September 15, 1937, the Guild was successful in its opposition, for the court then denied the application and assessed against Mogelever counsel fees and costs of approximately $500. Prior to May 18, 1937, Fahy's duties on the Ledger consisted partly of special reportorial and editorial work relating to religious and church affairs and women's political activities. She also performed a substantial amount of general reportorial work and so-called "re- write," that is, rewriting in news-story form various reports and other items of information gathered from different sources. On May 18 the respondent discontinued the "church" page of the Ledger, in which religious and church news had been presented and also ended its special handling of news about women's political activities. Thereafter news of this character was treated as ordinary news, reported and written only when of sufficient general interest and by the editorial staff at large. On May 19 Fahy was transferred to perform "rewrite" work almost exclusively, and the hours of her working day were changed to from 4 p. in. to 12 p. m.` At the hearing the respondent claimed that because a substantial portion of Fahy's work was thus no longer required of her, Hochstein had then proposed that the respondent discharge her, but upon Mogelever's suggestion that he, Mogelever, "try" her "in all kinds of tasks, all kinds of assignments and duties" consented to her transfer. In any event, until her dismissal in September 1937 Fahy continued at this work. According to Mogelever's testimony Fahy in May and June 1937 .was regularly assigned "hand-outs"- and other items to rewrite, but in July was permitted to rewrite items of only "lesser impor- tance," and thereafter the amount of her work "tapered off a bit." Fahy testified that she was assigned hand-outs for rewriting but their number gradually diminished, that while she also wrote a short series of biographical sketches and a few stories "on general assignment" 15 no substantial amount of work was given her. The record shows, and we find, that after May 18, 1937, no news story or item of any importance was assigned to Fahy for editorial or reportorial work; that the work assigned to her progressively diminished in significance and amount, and that by the time of her discharge she had been relegated to a position of unimportant tasks and comparative idleness. 3^ Rewriting on the respondent's paper is noimally carried on at night Upon Fahy's iequest her working hours originally set to end a little later were reset to end at midnight. +A "hand-out" is a news report issued by a news source "General assignment " consists of initial investigation and repotting on a matter of news interest , and writing a news story regarding the same NEWARK MORNING LEDGER COMPANY 1013 In the period between May 18 and September 22, 1937, while Fahy's position on the Ledger was undergoing these changes, the Guild Local, as already mentioned, in the early part of August elected her its president and chairman of the executive committee, on August 12 under her leadership brought its 3 months' negotiations with the respondent for a collective agreement to a successful conclusion, and on September 15 won its case iii. court against the attempt of Mogelever to enjoin his expulsion. On September 20 Fahy approached Hoclistein for the purpose of obtaining his permission to attend a prospective meeting of the Local which was to be held during her working hours. She, pre- sented her request and suggested that the respondent could make an appropriate deduction from her pay. At the hearing Hochstein stated that lie resented the suggestion about the deduction because lie never before had docked her pay for time taken to attend such meetings. However, the evidence shows that with the exception of two occasions when Fahy obtained Mogelever's permission to par- ticipate in conferences of the Guild with the respondent, all union conferences and meetings attended had been outside of working poufs. Hochstein's reply to the request was inconclusive. Accord- ing to Fahy's testimony Hochstein then commented upon her being "iuihappy"; according to Hochstein's testimony Fahy initiated the discussion which followed- about her "unhappiness." In any event Hochstein in that connection alluded to her idleness, saying that Fahy had not been sufficiently productive, had been "parading"'10 in the office, and "seemed" to be "busy about [her] . . . own affairs." Fahy replied that the volume of her productivity was controlled by Mogelever, and denied making personal use of the respondent's time. Hochstein stated that in view of her "unhappiness" he would ask for her resignation. Fahy did not reply. Two days later Hochstein summoned Fahy to his office and discharged her. He stated as the reason therefor 'that-the respondent's institution of a 5-day working week on September 17 necessitated its econoinizing and accordingly it had determined to dismiss her 3, At the hearing the respondent contended that it discharged Fahy for business reasons, that its inauguration of the shorter working week emphasized a need for economy in its editorial department and Fahy's asserted incompetence made her readily dispensable.s It is 99 At the hearing Fahy explained that because of her idleness she had on occasion walked about the office to break the monotony We are satisfied that she had not thereby dis- tui bed any one No complaint about the matter had eves been made to her. 3T As previously stated , the respondent in Api it 1937 announced the institution within 6 month., of a shoitet «oiking week The contract of August 12 provided for the 5-day working week. 18 In its brief to the Board the respondent took the following position as to the reasons for Faby 's discharge We want to make the respondent's position clear, namely , that although the neces- sity for economies contributed to Miss Fahy's discharge, it was not the sole reason 283032-41-vol. 21-65 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apparent that the respondent followed no seniority principle in the dismissal, for as mentioned above Fahy had been on the editorial staff of the Ledger for more than 8 years and was the third oldest employee in length of service. Essentially the respondent's position narrows itself to the prop- osition that the cause of Fahy's discharge was her alleged incom- petence. There is no persuasive showing that need for economy in the editorial department was either the moving cause or a factor in the discharge.39 Five of the respondent's witnesses testified con- cerning Fahy's asserted incompetence, Hochstein; MDgelever; one Webster, its news editor; one Winn, head of the copy desk; and one Menagh, a former employee who had been acting city editor and head of the copy desk between 1927 and 1934. Hochstein's testimony was vague and in parts self-contradictory. He was un- certain as to the nature of Fahy's work when he asked her to resign. We have heretofore commented on the credibility of this witness. He testified that her work was "just .. , matter of fact," and that his opinion of it was not "very high." He stated that while Fahy was able to discern items having news interest, she was in- capable, except in certain respects, to write the news in readable therefor. As the record discloses, it was the necessity for economy plus other con- siderations, including Miss Fahy's inability to handle the work assigned to her, her mental attitude, the fact that she had no dependents, and all the other matters referred to at the hearing in relation to her discharge The reasons other than business conditions thus urged by the respondent plainly are without support in the record and require no consideration here The respondent offered in evidence a portion of an article published in The Guild Reporter, official publication of the Guild, dated September 27, 1937, which we have admitted to the record and which suggested a "possible political angle" as the reason for Fahy's discharge we find that this was not a factor in Fairy's discharge The story in question is patently opinion matter and speculative in character, and there is no evidence apart from it to warrant a finding that political considerations played any part in Fahy's discharge o In so far as the alleged need for economy in the editorial department may be sail to be evidenced by the respondent's general financial condition, that condition was not one newly arisen when Fahy was discharged During the fiscal yeai s ending April 30 1936, and, April 30, 1937, the respondent sustained operating deficits of $62,000 and $73,000, respectively Newhouse acquired his controlling interest iin 1935 when the re- 'spondent corporation was in receivership Further, it is not clear that the financial position of the respondent after April 30, 1937. and piipr to the discharge had not improved Compared with an operating loss of $9,000 for May. Tune, and Tuly 1936 the respondent during the same months in 1937 showed a profit of $800 While in August 1937 the respondent had a loss of $19,000 and in September a profit of $5 000 the corre- sponding figures for 1936 were not offered by the respondent Finally, it is not altogether certain that the remedy for the respondent's financial condition did not rest elsewhei e than in a dismissal of an editorial employee Newhouse in his annual speech to the editorial staff in December 1935 told the employees that the respondent did not propose to discharge any editorial employee for economy reasons Hochstein stated in a similai address in December 1936, that the respondent's financial difficulty was dice to a loss in advertising revenue, and, as regards the status of its employees, the respondent's "problem" was not one of discharging editoiial employees From May 1937 until the tmio of Fahy's discharge the respondent hired nine additional editorial employees six of whom were still in the respondent's employ in September In April 1937 the respondent an- nounced, as heretofore mentioned, the institution of a shorter working week, although such a, change would increase editorial expenses -Indeed in' December 1936 the i espgndent had informed its editoiial staff that it would shorten the working, week when it was "econdmically'possible" to do so NEWARK MORNING LEDGER COMPANY 1015, form. He admitted that he never complained to Fahy about her work; indeed the only news story which he recalled as having been written by her was one which had met with his praise in respect to a certain phase of it. Mogelever testified that Fahy's writing after May 18, 1937, was "stilted," "dull," and lacking in "original- ity," and not suitable for a tabloid newspaper like the Ledger ; that between May 18 and September 22 he complained about this to Fahy on at least six occasions and to Winn and Webster approxi- mately 10 times; that in "most instances" the items involved required rewriting. However, while Mogelever had been city editor since September 1935 and while Fahy prior to May 18, 1937, had performed a substantial amount of work at rewrite and "on general assign- ment" apart from her special editorial and reportorial work, it was not until 1937 that Mogelever "discovered" the unsuitability of her style. He recalled specifically only two news stories which he iden- tified as having been written by Fahy and of which he had com- plained, one of which, supposedly very poor in draftsmanship, in fact had not been written by Fahy. In view of the Mogelever incident and Fahy's participation therein we do not feel that Mo- rgelever was an unbiased witness. Webster testified that Fahy's work after May 18 was "average, not outstanding, in many respects . .. inferior"; that he "repeatedly" complained to Mogelever about it However, none of these complaints was made to Fahy. On cross-examination Webster admitted that "many times," "nightly," he directed editorial employees other than Fahy to rewrite news stories ; that her stories required no more rewriting than those of other editorial employees; that the other employees had been retained by the respondent; and that he was "rather hard to please." Winn testified that Fahy was a "very mediocre" writer and her stories were "foggy"; that since 1935 he complained of Fahy's writing to Hochstein and Mogelever. Elsewhere he testified that these con- versations with Mogelever occurred in 1936 and in the summer of 1937. His testimony, as it relates to Fahy's special editorial and reportorial work, contradicted other of the respondent's witnesses. Winn was not authorized to make criticisms to Fahy about her work, but stated that he "naturally" discussed her work with her and occasionally asked her to make revisions. He was unable to identify the stories involved, and Fahy denied that Winn had ever so cor- rected her in her writing. Winn's principal duty at the copy desk was to edit copy and write headlines after necessary revisions had been made. He did not read completely the news stories which he received. Menagh testified that while he believed that Fahy's writing, considered from the viewpoint of a tabloid newspaper was conservative, he had a high regard for the quality of her writing and for her capacity as an editorial employee. He considered her ability 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to write on general assignment and rewrite as competent, and her work that of an "intelligent, capable writer." When interrogated as to whether Fahy's work was as proficient as that of another editorial employee of acknowledged skill, Menagh stated that such employee's work dealt with a "different subject matter" but Fahy's work was "superior." We are not satisfied either by the testimony and proffered testi- mony of the foregoing witnesses or by the record as a whole that Fahy at the time of her discharge was an incompetent editorial employee. Nor are we persuaded that the respondent actually then so regarded her. It is evident, and we find, that prior to Fahy's transfer on May 18, 1937, to perform rewrite almost exclusively, her work both in connection with church and religious news and wo- men's political activities, and in connection with general reportorial assignment and rewrite was competent and well-considered by the respondent. It is difficult for us to believe that if this had not been true Fahy would have been retained by Newhouse in the 2 years preceding May 18. With the exception of Winn the respondent's witnesses, in so far as they expressed dissatisfaction with Fahy's work, referred to the period of her employment after May 18. Whin not only differed with Menaglyand with other witnesses who testified to the good quality of Fahy's editorial work, but went further than his superiors and, as above stated, his unfavorable appraisal of her work included the special editorial and reportorial work. With re- spect to Fahy's capacity after May 18 to perform rewrite, to work on general assignment, and to discharge other duties required gen- erally of the respondent's editorial employees, we also are convinced and find that she was possessed of the requisite competence. As more particularly set forth hereinafter her failure to obtain adequate and congenial editorial work subsequent to that date did not result from any deficiency in her ability to handle editorial work, but from a planned course of action whicli the respondent was pursuing de- signed to rid itself of an employee whose union activities made her undesirable to the respondent. We do not believe that on or after May 18 Fahy lost the capacity which was hers to do rewrite, general assignment, or reportorial work. As above mentioned, prior to that date she had performed this kind of work in addition to her so-called specialties in church and religious news and women's political activ- ities. Fahy' estimated that one-half of her time had been devoted to such work, and it is clear that a substantial portion had been so spent. In that connection several of her news stories had been given prominence in the Ledger under her byline, both before and after Newhouse became publisher.40 *a She al-o received 'by-lines" in connection with her specialties NEWARK MORNING LEDGER COMPANY 1017 We are convinced that the respondent discharged Fahy on Sep- tember 22 because of her leadership and activities in the Guild and because the direct conflict with her employer's interests to which her firm adherence to. union principles had led her made Fahy persona non grata to the respondent. Throughout the period under review the respondent was opposed to the Guild. Pressing a philosophy which found formulation in Hochstein's statements about trade- unions, but motivated essentially by economic considerations, the re- spondent engaged during this period in a series of acts aimed to undermine and weaken the union and defeat its functioning as a collective bargaining representative. Thus, as heretofore mentioned, in the latter part of 1935 when the Guild Local as the statutory rep- resentative sought a collective agreement, with the, respondent in behalf of the editorial employees, an agreement, three of whose seven terms concerned protection of the union against employer attack," the respondent through its managing editor derogated the union to these employees, defamed the union leaders, and by other statements atten?apted to induce a withdrawal of the employees' support from the union they had chosen to represent them. When in December 1935 these negotiations were temporarily suspended because of a disagreement between the Local and the Ledger Unit over granting the respondent an immunity for a year against treating with the Guild, the respondent through its publisher promptly interposed itself into the situation, spoke in detraction of the union, and by direct overtures proceeded to undercut the union's authority. To- ward the end of April 1936, indifferent, to the assurances of the previous December upon which the editorial employees had relied as safeguarding their union and action through it, the respondent inaugurated the system of individual contracts of employment, there- by again ignoring and undercutting the authority of the chosen rep- resentative and manifesting a determination to deal on an individual basis in regard to the terms and conditions of employment of its editorial employees. While in the year following April 1936 and pending expiration of the individual contracts of employment the union initiated no negotiations for a collective 'agreement with the respondent, the attitude of the respondent toward the Guild did not change. In September 1936, when Fahy was first assuming impor- tant leadership in the Guild Local, the respondent through Hochstein was not averse to seizing upon her request for an increase in salary as a basis for inviting a renunciation of union principles. In Janu- ary 1937 the respondent again interposed itself in union affairs by financing Afogelever's attempt to obtain court aid in a situation which challenged the respondent's entire attitude toward the Guild. 41 See footnote 8, supra 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In April 1937 as the individual contracts of employment were about to terminate and the matter of instituting collective bargaining with the respondent was being discussed by the editorial employees, the respondent made its announcement about shortening the working week. Consistent with its policy of opposition to the Guild and in further- ance of its attempt to weaken the union, the respondent soon after May 18, 1937, took active steps against the single employee who, probably more than any other of its editorial employees , had stead- fastly sought throughout 1936 and in 1937 to strengthen the union as an effective instrument for advancing the employees ' economic interests. We already have stated the nature of Fahy's activities in the Ledger Unit and in the Guild Local , her insistence upon aggressive trade -unionism, her participation in the proceedings against Mogelever , and her rise to the presidency of the Local. We have no doubt, and, we find, that once the change in handling Fahy's specialties afforded it a ready opportunity the respondent proceeded to relegate Fahy to unimportant assignments and enforced idleness in the expectancy that her distaste of and unhappiness with her condition would quickly lead to riddance of the employee whom it had come to consider so undesirable because of her union activities and leadership . When this strategy failed grid instead, following May 18, Fahy rose still higher in the Guild Local and the Local under her leadership won its first collective agreement from the respondent and defeated Mogelever in court, the respondent then firmly set about to discharge her. On September 22 it did so, and through the dismissal , the clear meaning of which was stressed by publication on that day of the Hochstein letter to Green, served a warning upon all other editorial employees of the hazards of militant trade-unionism . As Hochstein a year and a half previous had remarked to an editorial employee, "Leaders in the labor movement had to be resigned to losing their jobs and losing personal advance- ment if they insisted on fighting for the members of their organization." We find that the respondent discharged Agnes Fahy on September 22, 1937, and thereafter refused to reinstate her because she joined and assisted the Guild and engaged in other concerted activities for the purpose of collective bargaining and other mutual aid and pro- tection, thereby discriminating in regard to hire and tenure of em- ployment and discouraging membership in a labor organization; that by said discrimination the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. NEWARK MORNING LEDGER COMPANY,, , 101;9 At the time of her discharge, Fahy's salary was $50 weekly. Sjnce her discharge she has had no employment. She desires to be, rein- stated to the editorial staff of the respondent. , I • - IV. THE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection. with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- coerce and the free flow of commerce. V. THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondent be ordered to cease and desist from the unfair labor practices in which we have found it to have engaged, and, in aid of such order and as a means of removing and avoiding the consequences of such practices, that the respondent be ordered to take certain action more particularly described below. We have found that the respondent discharged Agnes Fahy on September 22, 1937, because she joined and assisted the Guild and engaged in other concerted activities for the purpose of collective bargaining,and other mutual aid and protection, thereby discriminat- ing in regard to hire and tenure of employment and discouraging membership in a labor organization. We also have found that by its discharge of Fahy, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. Accordingly, we shall order the respondent to cease and desist from engaging in such unfair labor practices. Fur- ther to effectuate the policies of the Act we shall order the respond- ent to offer to Agnes Fahy immediate and full reinstatement to a position on the editorial staff of the Ledger without discrimination in regard to the nature or amount of her work or any term or condition of her employment because of union affiliation or activities, and with- out prejudice to her seniority and other rights and privileges, and to make her whole for any loss of pay she has suffered by reason of her discharge by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of such dis- charge to the date of the offer of reinstatement, less her net earnings 42 41 By • "net earnings" is meant nings less expenses, such as for transportation, room, and board incurred by the employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for her un- lawful discharge and the consequent necessity of her seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440. Monies 1020 DECISIONS OF NATIONAL LABOR RELATION S BOARD We shall also order other affirmative action which we consider necessary to remedy the situation. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following: CONOi.usIONs OF LAW 1. American Newspaper Guild and Newark Newspaper Guild are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of eniploy- ment of Agnes Fahy and thereby discouraging membership in Amer- ican Newspaper Guild and Newark Newspaper Guild, and in the Ledger Unit thereof, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in their 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) 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, Newark Morning Ledger Company, Newark, New Jersey, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in American Newspaper Guild, in Newark Newspaper Guild, and in the Ledger Unit thereof, or in any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment because of membership in or activity on behalf of any such labor organization; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in received for work performed upon Federal, State, county, municipal. or other work-relief projects are 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 govern- ment or governments which supplied the funds for said work -relief projects. NEWARK MORNING LEDGER COMPANY' 1021 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) Offer to Agnes Fahy immediate and full reinstatement to a position on its editorial staff of the Newark Ledger without dis- crimination in regard to the nature or amount of her work or to any term or condition of her employment because of union affiliation or activity, and without prejudice to her seniority and other rights and privileges ; (b) Make whole Agnes Fahy for any loss of pay she may have suffered by reason of her discharge, by payment to her of a sum of money equal to the amount which she normally would have earned as wages from September 22, 1937, to the date of the offer of rein- statement, less her net earnings 4, during said period; deducting, however, from the amount otherwise due said employee, monies received by her during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post and keep posted for a period of at least sixty (60) days from the date of posting, in conspicuous places at the respondent's plant and offices, notices stating that the respondent will cease and desist as provided in paragraphs 1 (a) and (b) and will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; that the respondent's employees are free to become or remain members of American Newspaper Guild, Newark Newspaper Guild, and the Ledger Unit thereof, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Second Region, in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. MR. WILLIAM M. LEISERSON, dissenting : I am of the opinion that the complaint in this case should be dismissed. After the Board's proof was presented the Trial Ex- aminer granted a motion by the respondent to strike the allegations of the complaint relating to the unfair labor practices within the meaning of Section 8 (1) of the Act. This ruling was approved by the Board, and therefore the recital of the alleged unfair labor s See footnote 42 8u1» u 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices that occurred prior to August 12, 1937, when a collective bargaining agreement was signed, should not be included in the Decision. The alleged discriminatory discharge of Fahy occurred after the agreement was signed, but it grew out of internal differences in the union, and under the circumstances no complaint should have been issued.