Clarksburg Publishing Co.

In the Matter of CLARKSRURO PUBLISHING Co. AND CECI7. B. HIGH- LAND, GEIiTRUDE M. HIGHLAND, AND A. F. McCdE (DIRECTORS REP- RESENTING CLASS A STOCK), AND JOHN A. KENNEDY, BRUCE LEE KENNEDY, AND 111. Guy TETRiCK, (DIRECTORS REPRESENTING CLASS B STOCK) and THE NEwsPAPER GUILD OF CLARKsnuaG No. 118, OF THE AIIERICA\ NE\vSI'Al'ER GUILD (AFFILIATED WITH THE CONGRESS Ol' INDUSTRIAL ORGANIZATIONS) Case No. C-J493.-Deeded July 15, 19x0 Jurisdiction : news publishing industry Unfair Labor Practices In ge^teial: responsibility of employer for activities of super Isoiy employees without anthoiity to hire or discharge. lateifereuce, Restraint, and Coeicioii: biihe,y, anti-union statements; inter- rogation (onceriung union membership Securing resignations of union members by stressing "loyalty" held 8 (1) D,.sc,m+utation: dischaige of one employee because of her union membership and netIvity Collective BargaDinrg. designation of majority by membership in union; effect of withdrawal of designation as result of employer's unfair labor practices, i equest for, by i epi esentatives of employees. refusal to meet and negotiate, failure to reply to communications Refusal to deal with union representatives because employed by news- paper managed by separate directors of same corporation, held S (5). Remedial Orders : order to bargain based on majority on date of refusal to bargain, reinstatement and back pay awarded to employee discriminatorily discharged Unit Appropriate for Collective Bargaining : editorial employees of two news- papei s owned by the same corporation including proofi caders and copy holders, but excluding editors-in-chief. Mr. 7V. G. Stuart Sherman, for the Board. Mo'. Chorles V. Louchery, of Clarksburg, W. Va., for the Publish- ing Company. Hoff'heimer cC Ho tier, by Mr. George M. Hofrhei'ier, of Clarks- burg, W. Va., for Cecil B. Highland and Gertrude M. Highland. Steptoe cC Johnson by Mr. James N. Guiher, of Clarksburg, W. Va., for Joint A. Kennedy, Bruce Lee Kennedy, and W. Guy Tetrick. 25 N L R. B, No 57 456 CLARKSBURG PUBLISHING CO. 457 Isserm,an, Isserman cfi Kapelsohn -by Mr. Abraham J. Isservian, of Newark, N. J., and Mr. Bernard Gainer, of Clarksburg, W. Va., for the Guild. Miss Marcia FJert2mar/c, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE: CASE Upon charges and amended charges duly filed by The Newspaper Guild of Clarksburg, No. 118,E of the American Newspaper Guild, herein called the Guild, the National Labor Relations Board, heroin called the Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued its complaint dated June 16, 1939, against Clarksburg Publishing Company, and Cecil B. High- land, Gertrude M. Highland '2 and A. F. McCue (Directors repre- senting Class A Stock) and John A. Kennedy, Bruce Lee Kennedy,-' and W. Guy Tetrick (Directors representing Class B Stock), Clarks- burg, West Virginia, herein called respectively the Publishing Com- pany, Class A Directors, and Class B Directors, and collectively called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondents and the Guild. Concerning the unfair labor practices, the complaint alleged, in substance, (1) that on or about December 7 and 15, 1938, and at all times thereafter, the respondents refused to bargain collectively with the Guild as the exclusive representative of their employees in the appropriate unit; (2) that the respondents discharged Helen Post on or about February 7, 1939, and discharged Margaret Tucker on or about February 20, 1939, because of their membership in and ac- tivity on behalf of the Guild, and for the purpose of reducing the majority representation of the Guild among the respondent's em- ployees; and (3) that the respondents demonstrated to their em- ployees their hostility to the Guild and attempted by threats and coercion to reduce the majority representation of the Guild among the employees. 1 Incorrectly designated in the complaint as the Clarksburg Newspaper Guild, Unit # 118. B Incorrectly designated in the complaint as Mrs. Virgil L Highland. 8 Incorrectly designated in the complaint as Mrs. John A. Kennedy. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 5 Cecil B. Highland and Gertrude M. Highland, two of the Class A Directors, filed their answer to the complaint, admitting their refusal to meet or bargain collectively with the committee of the Guild but denying the commission of the other unfair labor practices alleged. On July 6, 1939, the Class B Directors filed their answer to the complaint denying that they had engaged in the unfair labor practices alleged. On July 25, 1939, the Publishing Company filed its answer denying that it in any way refused to meet with the Guild or a committee thereof for the purpose of collective bargaining, "except insofar as failure to meet persons claimed by the president of the Union to be representatives, of the authority of which alleged representatives Respondent had and has no evidence, may be re- garded as refusal to meet as aforesaid," and otherwise denying the commission of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held at Clarksburg, .Nest Vir- ginia, on September 22, 25, and 26 and November 7, 8, 9, 10, 13, and 14, 1939, before Guy Van Schaick, the Trial Examiner duly designated by the Board. The Board and each of the respondents, except A. F. McCue, who did not appear, were represented by counsel and participated in the hearing. The Guild was represented by its presi- dent. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. At the commencement of the hearing, and at the conclusion thereof, counsel representing the two Class A Directors who appeared and counsel for the Publishing Company moved to dismiss the complaint. 'The Trial Examiner denied the motions in the first instance and reserved ruling in the latter instance. During the hearing and at its conclusion the Class,B Directors moved to dismiss the complaint as to them. The Trial Examiner reserved ruling upon the motions, and in his Intermediate Report denied them. The Trial Examiner granted several motions of counsel for the Board to conform the pleadings to the proof. He also granted a motion of counsel for the Board to dismiss the complaint as to Margaret Tucker. During the course of the hearing the Trial Exam- iner made a number of 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 com- mitted. The rulings are hereby affirmed. The Class B Directors thereafter submitted a brief in support of their motion to dismiss the complaint. On February 9, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, finding that the respondents had engaged in and were engaging in unfair labor practices, within the meaning of Section 8 (1) and (3) of CLARKSBURG PUBLISHING CO. 459, the Act, and that the Publishing Company and the Class A Directors- had engaged in and were engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. He recommended that. the respondents be ordered to cease and desist from engaging in such unfair labor practices. He also recommended that the Publish- ing Company be ordered to bargain collectively with the Guild and that the allegation that the Class B Directors refused to bargain col- lectively with the Guild be dismissed. The Guild, the Publishing- Company, and the two Class A Directors who appeared, filed excep- tions to the Intermediate Report. The Guild requested permission to- argue orally before the Board. Pursuant to notice , a hearing was held before the Board in Wash- ington, D. C., on May 7, 1940, for the purpose of oral argument. The Publishing Company, Cecil -B. Highland and Gertrude M. Highland, and the Guild were represented by counsel and presented their arguments. The Board has considered the exceptions to the- Intermediate Report, and the oral argument in support thereof, and,. in so far as the, exceptions are inconsistent with the findings , conclu- sions, and order set forth below , finds no merit in them. Upon the entire record in the case, the Board makes the following r FINDINGS OF ]FACT I. THE BUSINESS OF THE RESPONDENTS Clarksburg Publishing Company was incorporated on July 1, 1927,. and is engaged in the publication of the Clarksburg Exponent, a Democratic morning newspaper, The Clarksburg Telegram , a Repub- lican evening newspaper, and the Sunday Exponent -Telegram, a non- partisan, newspaper, at Clarksburg, West Virginia. Its incorporation followed a merger of The Clarksburg Telegram Company and The- Exponent Company which was effected through a voting trust arrangement under which , for purposes of identification , the voting stock of the Publishing Company is divided into Class A' Stock and Class B Stock. Certificates for the voting stock are held by Cecil B._ Highland and John A. Kennedy, as trustees. The equitable owner-- ship of Class A Stock is in the Clarksburg Telegram Company and that of Class B Stock is in the The Exponent Company. The Pub- lishing Company is managed and controlled by a board of six di- rectors, three of whom are designated by the holders' of the Class A Stock and three of whom are chosen by the holders of the Class- , B Stock. While the editorial policy of the Telegram is determined by the Class A Directors and that of the Exponent by the Class B- Directors , authority to hire, discharge, and regulate terms and condi-- 460 DECISIONS 01 NATIONAL LABOR RBLAT 1ONS BOARD tions of employment rests with the six directors of the Publishing Company. The voting trust provides that the affirmative vote of at least four of the directors is necessary to constitute any corporate act. On February 7, 1937, Cecil B. Highland was elected president of the Publishing Company, John A. Kennedy, vice president and treas- urer, and W. W. Powell, secretary and assistant treasurer, for a one- -year term. Under the bylaws of the Publishing Company the officers cannot hold over upon the expiration of their terms, unless they are reelected. At annual meetings of the directors since 1937 they have been unable to agree upon officers and none have been elected. High- land has continued to act as president, although the Class B Directors contend that there have been no officers of the Publishing Company since January 1938. The operations of the Publishing Company are carried on in a single plant but each of the daily papers has its own editorial staff and the Sunday paper is issued as a joint enterprise by both staffs. The daily average circulation of the Exponent for the 6 months ending March 31, 1939, was 16,916, of which approximately 1.2 per cent was sent outside the State of West Virginia. During the same period the Telegram sent outside the State approximately .9 per cent of its daily average circulation of 18,640. Approximately 1.1 per cent of the cir- culation of the Sunday Exponent-Telegram was shipped outside the 'State. Its average circulation during that period was 35,653. The Publishing Company employs approximately 160 persons. The raw and other materials purchased by the Publishing Company include newsprint and other papers, ink, metal, cardboard, binders board, paste, glue, cover stock, buckram, canvas, imitation leather, gold leaf, book binders supplies, dry mats, and packing felt. Approxi- nmately 90 per cent of all the raw and other materials purchased in 1938, the total cost of which was $84,880.51, originated outside the State of West Virginia. Each of the newspapers carries local, State, National, and foreign news, local and National display and classified and legal advertising, comic strips, photographs, cartoons, and feature articles. In 1938 the Publishing Company paid $58,005.29 for special features and association services. These services originated outside the State of West Virginia .4 This amount represented 10.18 per cent ,of the entire expenses of the Publishing Company. All out-of-State -news is transmitted to the Publishing Company by Associated Press leased wires, Western Union, or Postal Telegraph. National advertis- ing is obtained through a National representative, and in 1938 the sum ,Of $63,156.31 received therefor represented 11.16 per cent of the total The Publishing Company uses syndicated columns originating in Ne ss York and eisewheie CLARIiSBURG PUBLISHING CO. 461_ income of the Publishing Company. Local news printed in the three newspapers may be, and is, reprinted only by the Associated Press to whom the news is sent over Associated Press leased wires. II. THE ORGANIZATION INVOLVED The Newspaper Guild of Clarksburg, No. 118, of the American Newspaper Guild, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership editorial em- ployees of the Publishing Company, excluding editors-in-chief. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Guild was organized in May 1937 and was granted a charter by the American Federation of Labor on June 6, 1937. In July the American Newspaper Guild became affiliated with the Congress of Industrial Organizations • and about 60 days. later the Clarksburg Guild also voted to affiliate with that organization. By August 1937 a majority of the 18 eligible editorial employees- of the Telegram and the Exponent had joined the Guild, most of them upon the solicitation of Frank Carpenter, a police reporter on the Telegram, who was the most active organizer of the local Guild. Its activities became known as early as the fall of 1937 and the Publishing Company promptly took steps to discourage the organization. About September of that year, when Herbert Welch, who was called as a witness by the Publishing Company and the Class A Directors, applied for a position as sports editor, Wilbur M. Swiger,5 editor-in-chief of the Telegram, asked him how he "felt about the C. I. 0." When Welch. replied that he did not approve of some of its tactics, Swiger replied that he was glad to hear it because he knew that Highland felt the same way. At about the sane time S^viger informed Arthur Wright, State editor of the Telegram, that Highland had instructed Swiger to talk to new employees against the Guild. Swiger warned Wright "that it wasn't particularly healthy" for his job to be "lined up with this Guild organization." While Highland denied generally that he- had attempted to discourage membership in the Guild, he did not deny that he instructed Swiger to talk to employees against the Guild and we find that he did so. For about a year following its inception the Guild kept as secret as possible its efforts to secure members among the editorial employees of the Publishing Company. No request was made of the Publishing s Swiger died prior to the hearing in this case 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company to bargain collectively, or for any concessions. Leo F. King, -city editor of the Telegram and a witness for the Publishing Company and the Class A Directors, testified that prior to August 1938 he informed Highland that he had joined the Guild and that Highland inquired of him which of the other employees were members of the Guild. King refused to divulge the information. In the fall of 1938 Highland told Wright and King, according to Wright's testimony, "that we were wrong by belonging to the Guild" and "that there were a lot of things about it that we didn't understand ; then talked about loyalty, which King and I agreed meant that we could not be members of the Newspaper Guild, as long as we were members of the Newspaper Guild, why, we weren't loyal to Mr. Highland. And he indicated or lie told us that he intended to find out who was loyal to him and who was not loyal to him, still, of course, on the subject of the Newspaper -Guild." Highland admitted that he frequently stressed "loyalty" in speaking to his employees but denied that he used the term in opposi- tion to Guild membership. The Trial Examiner found, as do we, that Highland indicated that Guild membership was inconsistent with loyalty. The activities of Frank Carpenter are particularly noteworthy in -connection with Highland's efforts to destroy the Guild. In June 1938, while he was absent from Clarksburg, Carpenter was elected president of the Guild. Shortly thereafter, he suggested to King that they could "sell the Guild out to the profit to the two of us" and "use them for our gain." King refused to agree to Carpenter's plan. :Some time later Carpenter informed King that King had mistaken the meaning of his proposal; that the idea he meant to convey was that Carpenter could use his influence as president of the Guild to obtain wage increases for himself and King, regardless of whether the other members obtained benefits. King refused to consider such a. plan and told certain other members of the Guild about it. A num- ber of them, particularly Arthur Wright and Gene Collett, ceased to 'be friendly with Carpenter thereafter. Carpenter resigned from the Guild early in August, but King and other members of the Guild to whom he had reported Carpenter's .suggestion suspected that Carpenter had gone ahead with his plan -to "sell out" the Guild "on his own accord." Carpenter and Highland denied that the former had ever received any money from Highland in his personal capacity or in connection with reporting Guild activi- ties and denied further that Carpenter had given Highland any infor- mation about the Guild prior to December 1938. Highland testified -that after that time Carpenter "talked about it a little" but gave him no definite information. Carpenter admitted that upon his resignation CLARKSBURG PUBLISHING CO. 463 as president of the Guild he set out to break up the organization by convincing its members that they should resign therefrom. Although Carpenter was a police reporter until his appointment on April 1, 1939, as acting editor-in-chief of the Telegram, it is clear from the record that he was considered by Highland as a confidential and supervisory employee 'and that, especially after about Thanks- giving of 1938 when Swiger became ill, and after Carpenter's resig- nation from the Guild, he was consulted on many matters of policy, wrote some editorials, and with Leo F. King was in authority in the editorial department. In fact, one of the reasons Carpenter assigned for his resignation from the Guild was that the Guild made it iinpos- sible for Highland to discharge employees whom Carpenter had asked to have discharged. Beginning about the end of November 1938 Swiger was away from the office a great deal of the time until his death in April 1939, and Carpenter was, according to Highland's testimony, "as much in charge as anyone else." As a matter of fact, it appears that Carpenter occupied an especially favored position, and that he actually occupied a confidential relationship to Highland. 'The circumstance that at that time Carpenter and Highland were of ,one mind and purpose in regard to the elimination of the Guild -strengthens our belief that Carpenter was acting in the interest of the respondents, if not at their suggestion. Also, it is evident that in addition to Carpenter's actual supervisory powers after November 1938 his relation to the management was such as reasonably to convey to other employees that he voiced the policy and wishes of Highlancl.e Carpenter stated that he resigned from the Guild because it had become affiliated with the C. I. 0., and that he was opposed to that organization because it was communistic. He also stated that he objected to the requirement of the American Newspaper Guild that negotiations must be conducted by representatives who were not mem- bers of the Guild.7 However, grave doubt is cast upon the validity of these reasons when it is remembered that Carpenter did not resign until about a year after the Guild's affiliation with the C. I. 0. and that the conditions to which he objected were as obvious in July 1937 as they were,a year later. While Carpenter's resignation from the Guild may have been prompted by his own desires, we find that his subsequent activities were the direct result of his efforts to conform with Highland's desires as to the Guild. This conclusion is greatly fortified by an abundance of evidence in the record that, after the first attempt by the Guild to bargain See Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of Avnem ica, Locals 259 and 3711, 18 N L. R. B. 837, and cases cited therein. 4 This was one of the reasons advanced by the Publishing Company and Highland for refusing to bargain with the Guild in December 1939 'See Section III B, 3, infra 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively with the respondents on December 6, 1938, Carpenter acted openly in concert with Highland in an effort to induce editorial employees to resign from the Guild. We find that after December 1, 1938, Carpenter performed the duties of a supervisory employee, that he occupied a confidential relation 8 to Highland, and that the Pub- lishing Company was responsible for his actions. In early December Highland told King that the Class B Stock- holders were attempting to use the Guild as a means of controlling the Telegram, and he asked King to resign from the Guild because of his position as city editor and because he was doing most of the work of editor-in-chief during Swiger's absence. He also informed King that he could not be loyal to the Guild and to Highland at the same time. In the meantime, Carpenter had intensified his efforts to in- duce editorial employees, especially Welch and Wright, to resign from the Guild. He admitted that he talked to each of them about resigning. On December 28 W. Guy Tetrick, general manager of the Publish- ing Company and a Class B Director, called King to his office and inquired of him whether he was worried about his job. When King replied in the affirmative, Tetrick told him not to worry because he and Kennedy would not permit Highland to discharge King: King testified that ".. . when I was called up that afternoon and told that Mr. Highland could not fire nze, when I felt that I was working for him and knew that I was, that rather angered me." King re- signed from the Guild on December 29, and on the same day Herbert Welch also tendered his resignation. Both letters of resignation con- tained statements that withdrawal from the Guild "is made of my own free will and without coercion or intimidation on the part of any person or persons." Carpenter's resignation from the Guild had contained similar languages Welch's letter of resignation was written by Carpenter in an office adjoining Highland's office and in the presence of King and Highland. Welch assigned as one of his reasons for wvithclrawing from the Guild the fact that King had reported to' him Tetrick's assurance of the previous day and that this occurrence confirmed a rumor as to the Exponent's attempts to foster the Guild. In addition, Welch admitted that he had reason to believe that Highland preferred not to have the members of the Telegram staff belong to the Guild, that he had the impression that Highland did not consider loyal those employees who did belong, and that King's resignation was 8 See Hatter of American Oil Company, Inc (Cammtis Bay Plant ) and Oil Workers Inter- national Union, Local No 411, 14 N L R B 990. 9 Since, at the time of his resignation from the Guild , King was acting primarily in the capacity of editor-in-chief and was not eligible to membership in the Guild , we do not find that Highland 's action in urging him to resign is an unfair labor practice CLARKSBURG PUBLISHING CO 465 a persuasive influence upon his own membership since King was his superior. Welch gave as an additional reason for his resignation the fact that, with the resignations of Carpenter and King, the working majority on the Telegram, was no longer powerful. Highland denied having talked to Welch about resigning from -the Guild; but Carpenter admitted having clone so, and it is not denied that Welch's letter of resignation was- written in Highland's office and in his presence. We find that the resignation of Welch from the Guild was due to the actions of Highland, Carpenter, and King, for which the Publishing Company is responsible. - On the afternoon of December 31, Carpenter, who was in High- land's office, in a building about two blocks from the one in which the Publishing Company, is housed, called Arthur Wright on the tele- phone and informed him that Highland wished to see him. Upon Wrig ht's arrival at Highland's office, and after Highland, Carpenter, and Wright had each had a drink of whiskey, Highland broached the subject of Wright's membership in the Guild. He informed Wright that he "had" Welch, King, and Dean H. Smith 10 and continued, "now I want to know what you are going to do. Are you going to.'be loyal to ine or aren't you? I am going to find out now who is loyal and who isn't loyal." Shortly thereafter, Carpenter took front ]its pocket a letter which he laid on Highland's desk, say- ing, "I don't know whether Art [Wright] wants to sign this or not." After Highland inspected the letter he turned it over to Wright who found that it was a letter of resignation from the Guild, pre- pared for his signature. When Wright protested that he was thus being confronted with an important decision to make offhand and needed time to decide, Highland urged him to sign the letter imme- diately, stating that Wright knew as much then as he would later and that "I want to get all these things off my mind. I want to start the year with a clean slate. I want to know who is loyal to me and who is not loyal to me." Wright refused to resign at the time but promised to inform Highland of his decision on the following Monday. Later in the day, while Highland was in another room, Carpenter urged Wright to sign the letter, telling Wright that Highland "was a nice fellow" and- that Wright "would be taken care of" if he withdrew from the Guild, that he "would be on the right side of,the page." During the remainder of the afternoon Highland continued to press Wright for an answer- and, when Wright insisted at 5 o'clock that lie had to go home; Highland exacted his promise to return at 7 o'clock. Wright came back in the evening, he and Highland had another drink, and Highland resumed the attempt to convince Wright that he should 10 Smith did not actually resign from the Guild until February 1939. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then resign from the Guild. Wright stated, shortly before 10 o'clock, that he had to leave the office and, in answer to Highland's question_ as to what he had decided, replied that he was not going to sign the- letter of resignation. An argument thereupon ensued during which Highland informed Wright that he was discharged. Wright advised Highland to wait until Monday to discharge him, and left the office. When Wright came to work on Monday no reference was made t& the events of the preceding Saturday, and he continued to work until June 1939 when lie resigned to take another position. Although Highland denied having requested Wright to resign from the Guild, he admitted that lie told Wright that if he intended to resign he- should do so at once, and did not deny the conversations with Wright described above. Carpenter admitted he had talked to Wright about resigning, that he prepared the letter of resignation for- Wright's signature, and that he told Highland that Wright was going to resign although Wright had refused to sign the letter. In view of all the circumstances, we do not credit Highland's denial. We find, as did the Trial Examiner, that, Highland, as well as Carpenter, urged Wright to resign from the Guild. The foregoing recitation of the events which occurred after the existence of the Guild became known to the respondents leaves no doubt of the Publishing Company's-effort to discourage membership in the Guild and reduce its majority representation. Cecil B. High- land, in person and through the editor-in-chief of the Telegram, in- formed editorial employees that it was unwise to belong to the Guild and Highland continually stressed his belief that membership in the Guild was inconsistent with loyalty to the Telegram. After the Guild had made its first formal request for collective bargaining, which we shall discuss hereinafter, Highland, Carpenter, and later King, for whose actions the Publishing Company is responsible, combined forces in an attempt to secure resignations from the Guild. We find that the respondents, by urging, warning, and persuading their employees to withdraw from membership in the Guild, have interferred with, restrained, and coerced their employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit The complaint alleges, and the Guild contends , that the editorial employees of the respondents , including proofreaders and copy hold- ers, but excluding editors-in -chief, constitute an appropriate unit for purposes of collective bargaining . There ' is no dispute as to the classifications of employees who should comprise the appropriate CLARKSBURG PUBLISHING CO. 467 - unit. However, there is complete disagreement by the respondents 11 with the Guild's contention that the appropriate unit should con- sist of the editorial staffs of both the Telegram and the Exponent- The Trial Examiner 'found that two units, one composed of the edi- torial employees of the Exponent and another composed of the edi- torial employees of the Telegram, would insure to the employees the• full benefits of their rights to self-organization and collective bar- gaining and otherwise effectuate the policies of the Act. The ex- ceptions filed by the respondents to the Trial Examiner's Inter- mediate Report state their position as follows: . .. that one unit is inappropriate and that any unit or units of editorial employees would be inappropriate and detrimental to said Telegram and Exponent, but that if there must be union or other organization of editorial employees, then and in that event there should be separate unions, organizations or units of the editorial employees of said respective newspapers. They except to the Trial Examiner's statement that the respondents contend that two separate units are appropriate for the purposes of collective bargaining. Although the words "anion" and "unit" are used interchangeably in certain instances in the respondents' pleadings, it is clear' that their position is, first, that there should be no union among their employees, since unionization unconstitutionally limits the "freedom of the press"; and, second, that if there must be organization of the employees there should be separate unions- for the Exponent and the Telegram. There is no merit m the first contention.' As to the second position, it is urged that because of the valiance in political and economic policies of the newspapers a single unit would be detri- Inental to both; that if a majority of the Guild members were em-_ ployees of one paper it would be possible' for ' that group to dominate the editorial policies of the other by exerting pressure on the minority. There is no evidence to support the probability of such an occurrence. The Constitution of the American Newspaper Guild contains a pro- vision stating that no member shall be "penalized by reason of .. . religious or political convictions, or because of anything he writes for publication." 13 We find no merit in the respondent's second position. The Act guarantees to employees the right to self-organization for the purpose of collective bargaining. In the present instance the employees have seen fit to organize in a particular manner, that is, 11 The Class B Directors took no position on the question and filed no exceptions to the Intermediate Repoit. 12 Matter of The Associated Press and American Newspaper Guild, 1 N. L R B 788, enf'd Associated Press Y N L R B, 85 F (2d) 56 (C. C. A 2), aff'd Associated Press v. N L. , R B,, 301 U S 103 ' "Article II, Section 6 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in one unit. The appropriateness of such organization is demon- strated by the fact that the editorial employees of both newspapers work in the same plant, using the same equipment, and being jointly responsible for the publication of the Sunday paper. No corporate act may be performed on behalf of the Publishing Company, by whom the editorial employees of both papers are employed, without the concurrence of four directors, and any contract dealing with wages, hours, and conditions of employment would necessarily have to be entered into by the Publishing Company. We find that the editorial employees of the Clarksburg Publishing Company, including proofreaders and copy holders, but excluding editor s-in-chief, at all times material herein, constituted and that they now constitute a unit appropriate for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to the employees of the respondents the full benefit of their right to self-. organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Guild of the majority in the appropriate unit The Publishing Company has had 18 employees in the appropriate unit at all times since December 6, 1938. Prior to that date 16 of these employees had joined the Guild. On December 6 and 15, 1938, .and on January 1, 1939, when the Guild made its requests for col- lective bargaining, a majority of the 18 eligible editorial employees were members of the Guild. We find that on December 6, 1938, the Guild was, and at all times thereafter pertinent to this Decision has been, the duly designated vepresentative of a majority of the employees of the Publishing Coin- pany in the. appropriate unit, and that by virtue of Section 9 (a) of the Act it was the exclusive representative of all the employees in said unit for the purpose of collective bargaining with the respondents in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain (a) The Guild's efforts to meet with the respondents On 'December 6, 1938, Lee Garrett, president of the Guild;, ad- dressed letters to Cecil B. Highland and John A. Kennedy stating that the Guild represented a majority of the editorial employees of the Telegram and Exponent and requesting that Highland and Kennedy, or their agents, meet with representatives of the Guild CLARKSBURG PUBLISHING CO. 469 for the purposes of collective bargaining. The letters further stated that the negotiators representing the Guild, whose own members would sit in at the meeting.-as observers, would be the president of District 31, United Mine Workers of America, a member of the Cut- ters League of America, and a representative of the Clarksburg Local of the International Typographical Union. Highland did not re- ply to the letter. Kennedy was out of town, ill, and his secretary ac- knowledged the letter to him. Upon his return, a week later, Kennedy had Garrett come to his [Kennedy's] home. He told Garrett that ,the employees had a right to form the Guild; that no action would be taken against "them; and that the Publishing Company would negotiate with the Guild. He inquired what the Guild proposed in its contract; and he suggested that Garrett send a letter to the Publishing Company explaining why others than Guild members were to negotiate for the Guild. , He also advised Garrett that a meeting of the directors was to be held on the following Saturday. On December 15 Garrett sent to the Publishing Company, with copies to each of its directors, a letter setting December 28 as a tentative date for a meeting, and explaining that "the American Newspaper Guild constitution . . . prohibits our negotiating for ourselves." 14 Shortly thereafter, Highland called Wright and King, who were both members of the Guild at the time, into his office, showed them the letter of December 6, and stated that he would not meet with a "bunch of coal miners and glass workers." On about December 21 Kennedy again called Garrett to his home and informed him that a motion to name negotiators to meet with the Guild, made by him at a meeting of the directors on December 17, had been voted down by the Class A Directors, but that a motion to refer the question to counsel for the Publishing Company was passed when McCue, a Class A Director, 'voted with the Class B Directors. Kennedy stated that the opinion of the attorneys should be forthcoming by December 28, when the meeting was scheduled to be held. Before that date Garrett was informed by Tetrick, a Class B Director, that no opinion had been received and arrangements for the meeting were thereupon can- celled. A day or two later Tetrick told Garrett of a letter which Highland had instructed W. W. Powell, business manager of the Publishing Company, to write to Garrett but which was not sent because Kennedy had seen a copy and had halted its mailing on the ground that the questions asked therein were unfair to the Guild. The letter, a copy of which was shown Garrett a few days later, was 14 Article XVIII, Section 3, of the Constitution of the American Newspaper Guild reads as follows • "Not fewer than three persons shall participate in any collective bargaining on behalf of the ANG. The negotiators shall not be members of the unit involved, but the unit shall be entitled to choose observers from its members." 283036-42-vol 25--31 470 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD dated December 28, 1938, and requested the names of editorial em- ployees who were members of the Guild or, as to those who were not members, the basis for their representation by the Guild; inquired as to the terms of the bylaw prohibiting the Guild from negotiating directly; and asked as to what specific grievances the Guild sought to negotiate. It concluded by stating that the information was sought in order to enable the Publishing Company to determine its position and whether it could participate in a meeting with the Guild. On January 1, 1939, after the resignations of King and Welch had been received by the Guild, Garrett addressed another letter to the Publishing Company, mentioning the resignations, stating that a request had been made to the International Executive Board of the Guild for permission to file charges with the National Labor Rela- tions Board, and urging that the Publishing Company fix a date for a meeting. On the same day Garrett sent a letter to Highland per- sonally, informing him of the Guild's contemplated action. Highland did not answer these letters, but on January 8, Kennedy, who was ill in Florida, telephoned Garrett, inquired what had occurred, and promised that no one would be discharged for union activity. When Kennedy returned to Clarksburg, he attempted to call a meeting of the directors to consider the matter of dealing with the Guild. However, at meetings called for March 18 and for April 1, 4, and 11, no Class A Directors appeared and no business could be trans- acted for lack of a quorum. On April 1 Kennedy wrote-Highland and told him that he intended to offer at the next meeting a resolution appointing Highland and Kennedy as a committee to meet the Guild, but, as stated above, the Class A Directors did not appear at the fol- lowing meetings. On April 3 Wright and Gene Collett, called on Highland and, among other things, asked about the letter of De- cember 28 which had not been sent. They were shown a copy of the letter and, although they expressed the opinion that the letter made inquiries which the Publishing Company had no right to make before opening negotiations, they offered to furnish the information if High- land would promise to start negotiations. Highland replied "that the letter did not say that he planned to begin negotiations; that be, was only asking for information." He refused to agree to meet with the Guild and stated that he did not want to attend any directors' meetings called by Kennedy and would not call a meeting himself. The meeting of the directors which was called for April 11 had been postponed until April 19. On April 18; pursuant to a special call by Highland, a meeting was held at which four directors were present. After the transaction of the special business, Highland moved to ad- journ but Kennedy and Bruce Lee Kennedy voted "No." Kennedy then offered the resolution providing for appointment of a committee CLARI{SBURG, PUBLISHING CO. 471 to meet with the Guild. Highland refused to consider the resolution, on the ground that it was not mentioned in the, special notice, and left the room. No action was then possible for lack of a quorum. No further attempt was made by the Guild or any of the directors to meet for bargaining negotiations. (b) Conclusions with respect to the refusal to bargain The facts set forth above show that the respondents have not ful- filled the obligation imposed by the Act to bargain collectively with the Guild as the representative designated by a majority of their employees within an appropriate unit. At no time were they.willing to recognize the Guild as the bargaining representative of the em- ployees or to meet with the committee representing the Guild, and the only affirmative acts in response to the Guild's efforts to secure a meeting were to refer the matter to counsel for an opinion and write to the Guild a letter which was never sent.- In fact, the answer of Cecil B. Highland and Gertrude M. Highland admits their refusal to meet and bargain collectively with the committee designated by the Guild, and the answer of the Publishing Company, while denying that it has refused to meet for the purpose of collective bargaining, iii effect admits such refusal, by stating, following the denial, " . . . except insofar as failure to meet persons claimed by the president of the Union to be representatives, of, the authority of which alleged representatives Respondent had and has no evidence, may be regarded as refusal to meet as aforesaid." The respondents' position with respect to collective bargaining with the Guild is evidenced by Highland's testimony that "I did not consider that they represented The Clarksburg Telegram edi- torial force and I did not see any particular reason why I should meet with the editorial force of The Clarksburg Exponent sepa- rately," and by Highland's statement that he considered the Guild controlled by the editorial employees of the Exponent. He also testified tbat'lie took no action in response to the Guild's requests because Garrett, the Guild's president, was not an employee of the Telegram, and he felt that he had no duty to reply to his letters. Highland's reasons for refusing to meet with or recognize the Guild can furnish no defense to the charge that the respondents have engaged in unfair labor practices by refusing to bargain with the Guild. The duty of an employer to bargain with the duly selected representatives of his employees may not be qualified by a requirement that such representatives be employees of a certain division of the company or, in fact,, that they be employees at all. Highland was, at least, the de facto president of the Publishing 472 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD Company- with which the Guild- requested negotiations, and as such he was under a duty to bargain with respect to its employees. - The respondents contend also that the unit 'sought' by the Guild was inappropriate and that therefore they were under no duty to bargain with it. We have disposed of this contention by our finding above that the unit sought by the Guild at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining. Moreover, Highland did not at any time inform the Guild that he thought that the unit it sought was inap- propriate or that he was basing his refusal to bargain upon that fact The Publishing Company excepts to certain findings of the Trial Examiner's Intermediate Report relating to the Guild's majority representation for the reason that the evidence shows that the Guild refused to reply to the questions in the letter of December 28 unless Highland would promise to negotiate with the Guild. There is no merit in the contention that the Publishing Company was relieved of the obligation to bargain upon these facts. The Guild had no official notice of the requests for information until April 3, 1939, when its committee called upon Highland and asked to be shown the letter of December 28, 1938. No other request for proof of majority was ever made. Highland definitely declined the Guild's offer to prove its majority on April 3, 1939, when he refused to agree to recognize the Guild or negotiate with it, even though it was shown to represent a majority. Moreover, it is clear that his reasons for refusing to recognize the Guild and bargain with it were not based upon any failure of the Guild to prove its majority and that he was not actually in doubt as to the Guild's representation of a majority of the editorial employees. The record contains ample justification for our conclusion that the respondents, represented by Highland, were determined not to recognize the Guild or have any dealings with it. Whether or not this attitude was due to internal conflict within the organization of the Publishing Company is immaterial for our purposes. The fact remains that the respondents, when confronted with their statutory duty to bargain collectively with the Guild, failed to assume that duty in any manner. We find that on December 6, 1938, and at all times thereafter, the respondents have refused to bargain collectively with the Guild as the exclusive representative of the employees within an appropriate unit, and that the respondents have thereby interfered with, re- strained,, and coerced their employees in the exercise of 'rights guaranteed by Section 7 of the Act. CLARKSBURG PUBLISHING CO. 473 C. The discriminatory discharge' Helen Post was employed as an assistant proofreader or copy holder on the Telegram on November 19, 1936. She joined the Guild on August 16, 1937, at the request of Carpenter, and thereafter attended its meetings regularly. About November or December 1938, High- land told Post and Dorothy Hindman, Post's superior, that they were doing their work very well and that they probably would re- ceive a present after the first of the year. Post and Hindman re- ceived a wage increase of $2.50 per week on the first pay day in January 1939. On February 7, 1939, Post was given written notice of her dismissal by W. W. Powell, business manager of the Publishing Company, who made no statement orally but merely handed her the letter. After working hours on that date Post called on Powell who said he knew nothing about the letter, that he had been told to write it, and that he would be glad to give Post a letter of recommendation. On the following day Post inquired of Highland the reason for her discharge. Highland asked if a reason was necessary and, when Post replied that she would appreciate knowing why she had been dismissed, Highland told her, among other things, that "every one had their own reasons for doing things, and they didn't have to tell anyone what they were"; that "it made him feel bad when people had meetings and said things against him"; and that his. advice to Post was, that when she obtained another job, she should "look out" for herself and "not get mixed up in other people's affairs" and she would "get along better." Post testified that he also recounted to her a story concerning Chernoff, a former advertising manager, who had attempted to organize the employees in the stereotype room and who had tried to tell Highland "how to run his business, and he fixed that and made changes just as he was going to do in the editorial room." Highland testified that his reason for telling Post about Chernoff was that he "wanted her to tend to the proof reading business ... and did not want her to look after anything else." He explained that the changes referred to in his talk with Post had to do with "men hanging around the proof desk, not getting out the paper ...," and that he "wanted her to stay out of the composing room." In view of our finding below that Post did not leave her desk unnecessarily, we do not credit Highland's explanation of the state= ments made to Post, but find that Highland told Post about Chernoff for the purpose of informing Post that she, like Chernoff, was being dismissed because of her onion activities. On February 9 a grievance committee of the Guild called upon Tetriclk_to discuss Post's discharge but Tetrick informed them that no reason had been assigned, that Highland had stated at a meeting 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the directors that he wanted to replace Post, and that Kennedy and the other Class B Directors had voted with Highland to dis- charge her. On February 11 there was attached to the assignment sheet posted in the editorial office a notice reading as follows : Memo To All Staff Members: In the future no conferences must be held in the editorial department or in the composing room during working hours. If you must discuss labor prob- lems or the like, the discussing must be done after 3 p. in. and outside this office or the composing room. These orders are from Mr. Cecil B. Highland, publisher, and must be obeyed. No such notice had ever been posted before and its significance in connection with Post's discharge becomes apparent when considered in the light of Highland's testimony that most of the confusion in the editorial room during November and December had centered around the proofreader's desk where Post worked. Whether or not such confusion was actually due to discussions of "labor problems or the like," it is evident that Highland believed that it was and that lie felt that Post was the hub of the disturbance. On February 13 letters were written by Garrett to Highland and Kennedy requesting a conference on February 18 to inquire as to the reason for Post's dismissal. Highland did not reply and Kennedy an- swered by letter stating that he would be out of town until the follow- ing-week. A' committee of the Guild met at the time and place ap- pointed for the conference but Highland did not appear. No further effort was made to discuss Post's discharge until April 3 when Arthur Wright and Gene Collett conferred with Highland who'told them that Post was incompetent and that he had received complaints that she was "running out to the composing room and talking to the lino- type operators and creating a disturbance about the office." He re- fused to reinstate Post and said that he would not vote for her reinstatement. The respondents 11 contend that Post was discharged because she was inefficient and because she spent too much time away from her desk and permitted other employees to gather at her desk. Although Carpenter testified that in the 6 months prior to Post's discharge she had made more than 100 errors in proofreading, only one example was introduced in evidence and this error occurred on August 29, 1938, over 5 months before she was dismissed. We deem it significant 15 Kennedy testified that he voted with the Class A Directors to discharge Post upon Highland's statement that she .was inefficient; that it was the practice for each group of directors to follow the other's recommendation in such matters ; and that he knew nothing of Post's work or that she was a member of the Guild CLARKSBURG PUBLISHING ' Co. 475 that Carpenter, who admitted his efforts to break up the Guild, was the person who reported this error to Highland and who called to Highland's attention a letter sent to Swiger by a subscriber pointing out errors in the newspaper. Although Highland testified that he did not know that Post belonged to the Guild, Carpenter, who had induced her to join, was aware of that fact. In view of the joint efforts of Highland and Carpenter to secure resignations from the Guild, we find that Highland had knowledge of Post's membership in the Guild. Hindman, who was Post's superior, testified that she had read and checked the article of August 29 in which the error appeared, and Ralph Layfield, then president of the typographical union, testified that on the morning following the appearance of the error the foreman of the composing room accused an employee of that department of having made the error. It is apparent, and we find, that responsi- bility for the error was not then placed upon Post and that only be- cause of the nature of the mistake was it remembered at all. Cer- tainly it was not considered serious, since 5 months were allowed to elapse thereafter before her discharge. The record shows that Post's fellow employees, as'well as the re- spondents. considered her to be efficient, and that she left her desk only when necessary in the course of her duties. Hindman testified without contradiction that only once during Post's employment had Swiger, editor-in-chief of the Telegram, corrected Post. Highland explained the increase given Post in January by saying that Kennedy wanted to raise the salary of the copy holder on the Exponent and that he therefore raised Post's salary. He stated that the salaries paid were based upon the position, rather than upon the ability of the employee. That this was not Highland's - general policy, however, is shown by the fact that Hindman, the Telegram's proofreader, received a salary of $22.50 per week whereas Arthur Cox, who occupied the same position on the Exponent, was being paid considerably more than that sum. We find that Helen Post was discharged and refused reinstatement because of her union membership and activity. By discharging Post the respondents discriminated in regard to her hire and tenure of em- ployment, thereby discouraging membership in a labor organization, and by such actions have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section V of the Act. At the time, of the hearing Post had worked 2 or 3 weeks since her discharge. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents de- scribed in Section I above, have a close,'intimate, and substantial re- lation to trade, traffic, and commerce among the several States, and tend to lead,to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order them to cease and desist from such practices. We have also found that the respondents have refused to bargain collectively with the Guild as the exclusive representative of the em- ployees within the appropriate unit. This finding was based, in part, upon the fact that on December 6, 1938, and thereafter, the Guild rep- resented a majority of the employees in the appropriate unit. The respondents' unfair labor practices in refusing to bargain with the Guild, discharging Post, and securing resignations from the Guild can- not operate to change or nullify the bargaining representatives pre- viously selected by the untrammeled will of the majority. Nor can this principle be subverted by the fact that, as of the date of the hearing, the composition of the unit had been altered by the resignations from their positions of two employees and the discharge of a third who were re- placed by new employees. Upon reinstatement of Post, the Guild will represent 7 of the 18 employees in the Unit. If the respondents had not engaged in the aforesaid unfair labor practices it is highly likely that the Guild would represent a majority in the unit, since the resigna- tion of Welch was caused by such practices, and since it appears that new employees have not been requested to join the Guild because of the respondents' unfair labor practices. In any event, it does not lie in the mouth of the respondents to argue to the contrary, since their own un- lawful acts have prevented the Guild from increasing its membership from among the ranks of the new employees. To permit,the respond- ents, by securing resignations from the Guild, by discharging Post, and by refusing to bargain collectively with the Guild, to preclude the Guild from the very real probability of obtaining as members at least some CLARKSBURG PUBLISHING CO. 477 of the newly hired employees would permit the respondents to evade their duty under Section 8 (5) of the Act by the supple expedient of violating other provisions of the Act. In order to effectuate the policies of the Act, we must restore, as nearly as possible, the status quo before the unfair labor practices were committed and secure to the employees their right to bargain through representatives they have selected with full freedom of choice. We will, therefore, base our order upon the majority obtaining upon the dates of the refusals to bargain, and re- quire the respondents to bargain with the Guild, upon request, in respect to rates of pay, wages, hours of employment, and other conditions of employment le We have further found that the respondents have discriminated in regard to the hire and tenure of employment of Helen Post, by discharg- ing and refusing to reinstate her. We shall order the respondents to offer her reinstatement to her former or substantially equivalent posi- tion and to make her whole for any loss of pay she has suffered by reason of such discrimination by payment to her of a sum of money equal to the amount which she would normally have earned as wages from February 18, 1939,17 to the date of the offer of reinstatement, less her net earnings 18 during said period. The Trial Examiner recommended that the complaint be dismissed in so far'as it alleges that John A. Kennedy, Bruce Lee Kennedy and W. Guy Tetrick, the Class B Directors, refused to bargain col- lectively with the Guild. Although it is true that the, record. con- tains no evidence of a refusal to bargain by the individuals named, their responsibility for a violation of the Act cannot be separated from that of the Publishing Company and the other directors. Our order will issue against the Publishing Company and its directors, officers, agents, successors, and assigns. 16 See Matter of Bloomfield Manufacturing Company, a corporation, and Samuel Bloom- field, Harold Bloomfield and Daniel Bloomfield, doing business as Bloomfield Mfg. Co , a partnership and Metal Polishers, Buffers, Platers and Helpers International Union, Local -t± 6, affiliated with American Federation of Labor, 22 N L R B 83. 1'1 Post received salary to that date 18 By "net earnings" is meant earnings less expenses , such as for tiansportation, room, and board , incurred by an employee in connection with , obtaining work and working elsewhere than for the respondent , which would not have been incurred but for, his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R . B. 440. Monies received for work performed upon Federal, State, county , municipal , or other work-relief projects 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 government or governments which" supplied the funds for said work-relief projects. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L .R B 219 , enf'd as modified as to other issues , Republic Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A 3), cert granted as to this issue May 20, 1940. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The Newspaper Guild of Clarksburg, No. 118, is a labor organi- zation, within the meaning of Section 2 (5) of the Act. 2. The, editorial employees of the respondents, including proof- readers and copy holders, but excluding editors-in-chief, have at all times material herein constituted and now constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3.- The Newspaper Guild of Clarksburg, No. 118, was on December 6, 1938, and at all times material to this Decision has been, the exclu- sive representative of all the employees within such unit for the purpose of collective bargaining, within the meaning of Section 9 (a) ofthe Act. 4. By refusing to bargain collectively with The Newspaper Guild of Clarksburg, No. 118, as the exclusive representative of their employees in an appropriate unit, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Helen Post, thereby discouraging membership in the Guild, the respondents have engaged in and are engaging in unfair labor practices, within they meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair practices are unfair labor practices affect- ing commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 'Board hereby orders that the respondent Clarksburg Publishing CLARKSBURG PUBLISHING CO. 479 Company, and its directors , officers, agents, successors, and assigns, shall:. 1. Cease and desist from (a) Refusing to bargain collectively with The Newspaper Guild of Clarksburg , No. 118, of the American Newspaper Guild, affiliated with the Congress of Industrial Organizations , as the exclusive repre- sentative of the editorial employees, including proofreaders and copy holders, but excluding editors-in-chief, employed by Clarksburg Pub- lishing Company, Clarksburg, West Virginia; (b) Discouraging membership in The Newspaper Guild of Clarks- burg, No. 118 , of the American Newspaper Guild, affiliated with the Congress of Industrial Organizations , or in any other labor organi- zation of the employees, by discharging or refusing to reinstate any of the employees or in any. other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (c)• Iu^ any other manner interfering with, restraining, and coer- cing, its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid and protection , as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the'policies of the Act : (a) Upon request, bargain collectively with The Newspaper Guild of Clarksburg, No. 118, of the American Newspaper Guild, affiliated with the Congress of Industrial Organizations , as the exclusive repre- sentative of the editorial employees, including proofreaders and copy- holders, but excluding editors-in-chief, employed by Clarksburg Publishing Company at Clarksburg, West Virginia, in respect to rates of pay, wages , hours of work , and other conditions of employment; (b) Offer to Helen Post immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges ; and make her whole for any loss of pay she may have suffered by reason of the .discrimination against her by payment to her of a sum of money equal to that which she normally would have earned as wages from February 18, 1939, until the date of the offer of reinstatement , less her net earnings 19 during said period; deducting, however, from the amount otherwise due-her, monies received by her during said^period for work performed upon Federal , State, county, municipal , or other work-relief projects; 10 See footnote 18, supra. 480 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD and-pay-over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous p1-ices at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that it will not en- gage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) t1bat it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that its employees are free to become or remain members of The Newspaper Guild of Clarksburg, No. 118, of the American News- paper Guild, affiliated with the Congress of Industrial Organizations, and that it will not discriminate against any employee because of membership or activity in that organization. MR. WILLIAM M. LEISERSON, dissenting in part : I dissent from the holding of the majority with respect to the ap- propriate unit and the refusal to bargain. I am of the opinion that the Trial Examiner correctly understood and decided these questions. I would, therefore, find two appropriate units, one composed of the employees on the Exponent and one composed of employees on the Telegram: However, since the Guild represented a majority of the employees in each unit at the, time of the refusal to bargain, and since the refusal was in no way predicated upon the inappropriateness of the unit proposed by the Guild, I would find a refusal to bargain on the part of the Class A Directors and the Publishing Company. I think the Trial Examiner correctly decided that the Class B Directors had not been guilty of a refusal to bargain. I