American Newspapers, Inc.

In the Matter of AMERICAN NEWSPAPERS , INC., ILLINOIS PUBLISHING AND PRINTING COMPANY, EVENING AMERICAN PUBLISHING COMPANY and CHICAGO NEwSPAPEI GUILD, LOCAL 71 or THE AMERICAN NEWS- PAPER GUILD In the Matter of AMERICAN NEWSPAPERS, INC., ILLINOIS PUBLISHING AND PRINTING COMPANY, EVENING AMERICAN PUBLISHING COMPANY and CHICAGO NEWSPAPER GUILD, LOCAL 71 OF THE AMERICAN NEWS- PAPER GUILD In the Matter of AMERICAN NEWSPAPERS, INC., ILLINOIS PUBLISHING AND PRINTING COMPANY and CHICAGO NEWSPAPER GUILD, LOCAL 71 OF THE AMERICAN NEWSPAPER GUILD In the Matter Of ILLINOIS PUBLISHING AND PRINTING COMPANY and CHICAGO EDITORIAL ASSOCIATION, LOCAL No. 21690, AFFILIATED WITH THE A. F. or L. In the Matter of EVENING AMERICAN PUBLISHING COMPANY and CHI- CAGO EDITORIAL ASSOCIATION, LOCAL No. 21690, AFFILIATED WITH THE A. F. OF L. Cases Nos. R-839, C-1118, C-1119, R-1544 and R-1545, respec- tively.-Decided April 12, 1940 Newspaper Publishing Industry-Interference , Restraint , and Coercion: pay ment of dues by supervisory officials to enable union members to vote against strike ; vilifying union members ; surveillance of union meeting ; attempt to discern which of employees were members of union and sufficiently sym- pathetic with union and its objectives to strike ; company-favored union: super- visory promotion of rival affiliated union ; successor to employee committees set up with supervisory encouragement ; charges of, dismissed as to company assistance to another rival affiliated union ; ordered to withhold recognition from assisted rival affiliated union unless similar recognition accorded charge- ing union or unless and until it is certified by the Board-Employee Status: supervisory : employee considered by others as their superior, as-Employer: responsibility of, for activities of minor supervisory employees-Discrimination: discharges for union membership and activity ; charges of , sustained as to two employees ; charges of, and for testifying under Act, dismissed as to one- Reinstatement Ordered: employees discriminated against upon application ; grounds for refusal of : offer of reinstatement after Intermediate Report and refusal to accept while strike current-Back Pay: as to one employee from date of discrimination to offer of reinstatement and thereafter upon refusal to reinstate upon application ; as to second employee from date of discrimina- tion to date of Intermediate Report and thereafter from date of refusal to rein- state upon application-Remedial Order: to run against holding company as 11 22 N. L R B, No. 66 899 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well as against the other respondents-Investigation of Representatives: con- troversy concerning representation of employees : rival organizations ; dispute as to unit and majority ; contracts for members only executed while proceed- ings were pending, no bar to-Unit Appropriate for Collective Bargaining: desires of employees Qf editorial and commercial departments to determine whether they desire to ' be' combined within a single unit or to ' constitute sepa= rate units-Representatives : eligibility to participate in choice : strikers; per- sons taking places of striking employees during currency of strike not eligible to vote-Elections Ordered: at such time as the Board shall in the future direct. Mr. Hyman Schulson, Mr. Herbert Shenkin, and Mr. Stephen M. Reynolds, for the Board. Mr. Edward G. Woods and Mr. E. D. Salinger, of Chicago, Ill., for the respondents. Meyers and Meyers, by Mr. Ben Meyers, of Chicago, Ill., and Isserm an, Isserman & Kapelsohn, by Mr. Morris Isserman and Mr. Abraham J. Isserman, of Newark, N. J., for the Guild. Mr. Joseph J. Berzin, of Chicago, Ill., for the intervenors, Chicago Allied Printing Trades Council, Chicago Web Printing Pressmen's Union No. 7, and Chicago Paper Handlers Union No. 2. Mr. Francis D. O'Mara, of Chicago, Ill., for the intervenors, Chicago Mailers Union No. 2, and Newspaper Delivery Drivers Union, Local No. 706. Mr. Irwin Bloom, of Chicago, Ill., for the intervenor, Chicago Photo Engravers Union No. 5. Mr. Joseph A. Ricker, of Chicago, Ill., for the intervenor, Chicago Window Washers Union Local No. 34. Mr. Joseph A. Padway, of Washington, D. C., and Mr. Daniel D. Carmell, of Chicago, Ill., for the intervenors, American Federation of Labor, Illinois Federation of Labor, Chicago Federation of Labor and their affiliated organizations, including Newspaper Commercial Associates, Local No. 21662, and Chicago Editorial Association, Local No. 21690. Mr. Irving Braveman, of Chicago, Ill., for the intervenor, com- mittee representing employees of the advertising department, Illinois Publishing and Printing Company and Evening American Publish- ing Company. Mr. Charles W. Fisher, of Chicago, Ill., for the intervenor, com- mittee representing employees of the circulation department, Illinois Publishing and Printing Company and Evening American Publish- ing Company. Mr. Andre Ferdiniand, of Chicago, Ill., for the intervenor, com- mittee representing employees of the business administration depart- ment, Illinois Publishing and Printing Company and Evening American Publishing Company. Miss Carol Agger, of counsel to the Board- AMERICAN NEWSPAPERS, INC. DECISION* ORDER AND DIRECTION OF ELECTIONS 901 STATEMENT OF THE CASE On March 30, 1938, a petition was filed by the Chicago Newspaper Guild, Local 71, American Newspaper Guild, herein called the Guild, with the Regional Director for the ,Thirteenth Region (Chicago, Illi- nois ), alleging that a question affecting commerce had arisen con- cerning the representation of employees of the Illinois Publishing and Printing Company and Evening American Publishing Company, herein called the respondents, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 26, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, ordered an investigation and hearing and authorized the Regional Direc- tor to conduct the investigation and to provide for an appro- priate hearing upon due notice. Thereafter, notice of the hear- ing and notices of the continuance and postponement of the hear- ing were duly served upon the respondents, the Guild, and upon Local 706, International Brotherhood of Teamsters. On May 13, 1938, the Guild filed an amended petition for investigation and certi- fication of representatives. On May 14, 1938, an amended notice of hearing was issued and on May 19, 1938, a continuance of hearing was ordered upon the motion of the Illinois Federation of Labor, Chicago Federation of Labor, and 23 labor organizations affiliated with the American Federation of Labor. On May 20, 1938, a second 'amended petition was filed by the Guild and a second amended notice of hear- ing was issued by the Regional Director. American Newspapers, Inc., was made a party by the second amended petition, as well as the Illinois Publishing and Printing Company and the Evening American Publishing Company. The second amended petition and notice of hearing were duly served upon the Chicago Federation of Labor, Illinois Federation of Labor, American Federation of Labor, 23 labor organizations affiliated with the American Federation of La- bor, the Guild, and the respondents. Thereafter, the Chicago Feder- ation of Labor, Illinois Federation of Labor, American Federation of *This Decision , Order and Direction of Elections was vacated May 8 , 1940, by an Order Vacating Order and Substituting Modified Order and Amendment to Di rection of Elections, 23 N L R B, No 57 283033-41-vol 22-58 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor, and all their affiliated organizations involved petitioned to intervene in the proceedings. The petition was granted. Pursuant to notice, a hearing was held from May 26 to June 15, 1938, at Chicago, Illinois, before George Bokat, the Trial Examiner duly designated by the Board. A third amended petition for in- vestigation and certification of representatives was filed by the Guild during the hearing. At the beginning of the hearing, Irving Brave- man, Charles Fisher, and Andre Ferdinand, respectively, represent- ing three committees which had been designated as collective bargaining representatives by certain employees of the respondents' advertising, circulation, and business-administration departments, petitioned to and were allowed to intervene in the proceedings. Their petitions were later withdrawn and the three committees with- drew from the proceedings. The Board, the Guild, the respondents, and the intervenors were represented by counsel or by union officials and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. During the hearing, as has been stated, the Guild moved to amend its petition, and the motion was granted by the Trial Examiner. During the course of the hearing, the Trial Examiner made various 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. The rulings are hereby affirmed. Oral argument with respect to the petition and issues raised thereby was subsequently scheduled and then indefinitely postponed because of the consolidation order discussed below. Charges and amended charges having been duly filed by the Guild, the Board, on July 29, 1938, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regula- tions-Series 1, as amended, ordered Case No. R-839, in which the hearing had been held, consolidated with Case No. XIII-C-703 (herein numbered C-1118) in which the charges had been filed. The respondents objected to the consolidation of the cases on various grounds. On August 12, 1938, the Board overruled the objections and exceptions to the order of consolidation. On September 10, 1938, the Board, by the Regional Director, issued its complaint; on Sep- tember 16, 1938, it issued its amended complaint; and on September 23, 1938, it issued its second amended complaint 1 against American Newspapers, Inc., Illinois Printing and Publishing Company, and Evening American Publishing Company, Chicago, Illinois, alleging that they had engaged in and were engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and 'A third amended and consolidated complaint was issued during the hearing and is discussed below. AMERICAN NEWSPAPERS, INC. 903 (3) of the Act. Copies of the second amended complaint, accom- panied by notice of hearing, were duly served upon the respondents and the Guild. Newspaper Commercial Associates, Local No. 21662, herein called the Commercial Associates, and Chicago Editorial Association, Local No. 21690, herein called the Editorial Association, petitioned to intervene in the proceedings. The petitions of the two organizations were granted by the Regional Director. In respect to the unfair labor practices, the second amended com- plaint alleged in substance that on or about certain specified dates the respondent Evening American Publishing Company discharged Harold Sullivan, lone Cross, and Howard Mayhew because they had joined and assisted the Guild; that the respondents, from on or about May 25, 1938, suggested, advised, urged, and warned their employees to join Commercial Associates and/or its predecessor committees; that the respondents, from on or about June 15, 1938, suggested, advised, urged, and warned their employees to join the Editorial Association; and that from on or about January 1, 1937, the respond- ents urged, advised, and warned their employees to refrain from joining the Guild, warned their employees that they would cease publishing newspapers in Chicago if the Guild continued in existence at the plant, spied on Guild meetings, and in other ways discouraged membership in the Guild. On September 17, 1938, the respondents filed an answer admitting certain allegations in the second amended complaint concerning the corporate structure of the respondents and denying that they had committed the unfair labor practices alleged. Pursuant to notices of postponement duly served upon the parties, the hearing on the consolidated cases opened in Chicago, Illinois, on September 29, 1938, before Henry W. Schmidt, the Trial Exami- ner duly designated by the Board. The hearing was closed on November 18, 1938. During the hearing the Guild filed further charges alleging that the respondents American Newspapers, Inc., and Illinois Publishing and Printing Company had engaged in un- fair labor practices within the meaning of Section 8 (3) and (4) of the Act, in that they had discharged Harry Read on October 3, 1938, because he gave testimony in- the consolidated cases and be- cause he ,was active in behalf of the Guild. The case based upon these charges is referred to herein as Case No. C-1119. On October 15, 1938, the Board, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations- Series 1, as amended, ordered Cases Nos. R-839, C-1118, and C-1119 consolidated. On October 17, 1938, the Board by its Regional Direc- tor issued its third amended and consolidated complaint,- including therein, in addition to substantially the same matters alleged in the second amended complaint, the allegations that the respondents, Illi- 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nois Publishing and Printing Company and American Newspapers, Inc., discharged Harry C. Read, an employee, because he had joined and assisted the Guild and because he gave testimony on September 30 and October 3, 1938, in Cases Nos. R-839 and C-1118. Attached to the third amended and consolidated complaint was a notice of hearing to commence in 5 days from the date of the complaint and giving the respondents 5 days in which to answer. Copies of the third amended and consolidated complaint were duly served upon the parties. The respondents thereafter amended their answer to meet the new allegations. The respondents thereafter filed objections, dated October 17, 1938, to the Board's order of consolidation of October 15, 1938. On Octo- ber 18, 1938, the Board overruled the respondents' objections. The Board, the respondents, the Guild, Commercial Associates, and the Editorial Association 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 on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and objections to the admission and exclusion of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 7, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondents, the Guild, Commercial Associates, and the Editorial Association. The Trial Examiner found that the respondents 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 respondents cease and desist therefrom and offer to Howard Mayhew immediate and full reinstatement with back pay. He also found that the evidence failed to sustain the allegations that Harry Read and Harold Sullivan were discharged because of their affilia- tion with and activity in behalf of the Guild and recommended that the complaint, so far as it dealt with them, be dismissed.2 The Trial Examiner further found that the evidence failed to sustain the charge concerning unfair labor practices of the respondents with respect to the Editorial Association and recommended that the alle- gations in the complaint relating thereto, be dismissed. Thereafter, the respondent, American Newspapers, Inc., and the Guild filed exceptions to the Intermediate Report. Pursuant to notice, a hearing for the purpose of oral argument was held on March 2, 1939, before the Board in Washington, D. C. The respondents, 2 The allegation in the complaint that lone Cross was discharged because of her Guild activity was dismissed at the hearing upon motion of counsel for the Board. AMERICAN NEWSPAPERS, INC. 905 the Guild, and the intervenors were represented by counsel or by union officials and participated in the argument. The Board has considered the exceptions of the Guild and American Newspapers,. Inc., and, save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. At the oral argument the Guild filed a motion 3 requesting, inter alia, that the proceedings in Case No. R-839 be reopened for the taking of further testimony; that any decision or alternatively, any election ordered, in such proceedings, be deferred until all charges of unfair labor practices should be disposed of and until effectual remedial measures should have been fully consummated ; and that remedial measures, other than those based upon the Intermediate Report and the Guild's exceptions thereto, deemed necessary by the Board, be deferred until additional charges of unfair labor practices then pend- ing should be disposed of and until the Board should have considered the effect of a strike then being conducted against the respondents by the Guild. In support of its motion, the Guild urged, inter alia, that conditions in the respondents' plant had changed since the Guild had filed its petition for investigation and certification of representa- tives, in that its contract with the respondents as exclusive representa- tive of the' employees in the editorial departments of the two newspapers published by two of th'e respondents had expired, that therefore a unit other than that originally alleged was appropriate; that a petition for investigation and certification of representatives had been filed on December 7, 1938, by the Editorial Association and was then pending; that by reason of the respondents' unfair labor practices, the Guild had called a strike on December 5, 1938, which strike was still in effect; and that the respondents had executed a collective bargaining contract with the Editorial Association. On May 17, 1939,4 the Board issued and served upon the parties an order granting in part the Guild's motion of March 2, 1939, reopen- ing the record to allow the taking of further testimony in Case No. R-839, directing an investigation of and hearing upon the petition filed by the Editorial Association on December 7, 1938,5 and ordering that the proceedings upon the Editorial Association's petition be consolidated with the pending cases. 3 This motion was in effect a renewal of a motion theretofore filed by the Guild with the Board, which was opposed by,tbe respondents and by certain of the intervenors, upon which the Board had made no ruling we consider that the objections made to the orig- inal motion, go to the Guild's renewed or supplemental motion of March 2, 1939, in so far as they are applicable. to-the renewed or supplemental motion. 4 There was some indication at the hearing on March 2, 1939, that the new matters which the Guild desired to have included in the record of Case No. R-839 might be inserted into the record by means of a stipulation between the parties By about April 26, 1939, however, it became apparent that the parties were unable to agree upon such a stipula- tion Case No. R-1544 The petition relates to the employees in the editorial department' of the Chicago Herald and Examiner. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 25, 1939, the Editorial Association filed another petition for investigation and certification of representatives, relating to the employees in the editorial department of the Chicago Evening Amer- ican and on July 6, 1939, the Board ordered an investigation and hearing upon the petition 6 and its consolidation with 'the pending cases. Pursuant to notice, a hearing was held from September 1, 1939, to September 20, 1939, in Chicago, Illinois, before Henry W. Schmidt, the Trial Examiner duly designated by the Board, at which further testimony was taken in the representation cases. The Board, the respondents, the Editorial Association, and certain of the intervenors were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings upon motions and objections to the admission and exclusion of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner reserved decision upon the respondents' mo- tion that American Newspapers, Inc., be dismissed as a party respond- ent in these proceedings. For the reasons discussed below, the motion is denied. Pursuant to notice, a hearing for the purpose of oral argument was held on November 14, 1939, before the Board in Washington, D. C. The respondents, the Guild, the Editorial Association, and Commercial Associates were represented by counsel and participated in the argument. At this hearing, the Guild urged that disposition of the representation proceedings be delayed on the ground, inter alia, that new charges had been filed by the Guild with the Regional Director for the Thirteenth Region, alleging that the respondents had engaged in new unfair labor practices within the meaning of Section 8 (1), (3), and (4) of the Act. Any further delay was opposed by the other parties represented at the hearing. Under the circum- stances, the Board feels that there should be no further delay in disposing of the cases. Upon the entire record in the cases, the Board makes the following:- FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS The business of the respondents will first be described as it was at the time of the first-and. second .hearings held -in,-the consolidated Case No. R-1545. AMERICAN NEWSPAPERS, INC. 907 cases. Changes made since that time are discussed separately below. Illinois Publishing and Printing Company was incorporated under the laws of the State of Illinois in 1904 and published the Chicago Herald and Examiner, a daily and Sunday newspaper, herein called the Examiner. Evening American Publishing Company was in- corporated under the laws of the State of Illinois in 1900 and pub- lished the Chicago Evening American, a daily newspaper, herein called the American. Both the respondents, Illinois Publishing and Printing Company and the Evening American Publishing Company were owned directly or indirectly by the respondent, American Newspapers, Inc., in the manner described below : All the stock of the Illinois Publishing and Printing Company, the owner and publisher of the Chicago Herald and Examiner, was owned by the respondent, American Newspapers, Inc., a Delaware corporation, which itself or through corporate subsidiaries wholly owned or controlled by it, publishes other newspapers in Albany, New York, Boston, Massachusetts, and Syracuse, New York. Amer- ican Newspapers, Inc., is a part of the Hearst organization of publi- cations and press, radio, and film services, and was a respondent in the matter of William Randolph Hearst, et al. Case No. C-136, 2 N. L. R. B. 530. The beneficial interest of all of the common stock and 85 per cent of the preferred stock of American Newspapers, Inc., was owned by William Randolph Hearst. All the stock of Evening American Publishing Company, the owner and publisher of the Chicago Evening American, was owned by Hearst Publications, Inc., a California corporation, which pub- lishes papers in cities in California and Washington. Hearst Pub- lications, Inc., is a part of the Hearst organization of publications and press, radio, and film services, and was a respondent in the case mentioned above. All the stock of Hearst Publications, Inc., is owned by Hearst Consolidated Corporation, Inc., a Delaware corporation. All the common stock of Hearst Consolidated Corporation, Inc., is owned by the Hearst Corporation, a California corporation. All the stock of the Hearst Corporation is owned by the respondent, American Newspapers, Inc. The operations connected with the printing and publishing of the two newspapers were conducted principally in one building located at 326 West Madison Street, Chicago, Illinois. A portion of the color printing is performed at the Color Plant located at 27th and LaSalle Street, Chicago, Illinois. All of the newsprint used in the two pub- lications was shipped to the companies' Chicago plant from points outside- the State of Illinois,, principally from Canada. The two newspapers used approximately 95,000 tons of newsprint during the 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year 1937. The respondents have purchased only a negligible quan- tity of equipment and machinery from without the State of Illinois during the past 5 years, such purchases consisting mainly of replace- ments. Roughly 50 per cent of all other supplies used by the companies in their operations are purchased outside the State of Illinois. The Chicago Evening American had an average daily circulation of approximately 400,000 copies, of which approximately 61/4 per cent were circulated and distributed outside the State of Illinois, prin- cipally in the middle-western States. The Chicago Herald and Examiner had an average Sunday circulation of approximately 925,000 copies and an average daily circulation of approximately 325,000 copies, of which approximately 151/2 per cent were circulated and distributed outside the State of Illinois, principally in the middle-western States. Both papers subscribed to and received material from news, fea- tures, and photographic services which collect news, features, and photographs in all parts of the United States and the world, and transmit their products to the two papers. Both papers were mem- bers of the Associated Press and subscribed to the International News Service. The two papers received advertising which originated outside the State of Illinois.' Between the second and third hearing on the consolidated cases, changes took place in the respondents' corporate structure and in its method of doing business. On August 26, 1939, the directors of the Illinois Publishing and Printing Company and of the Evening American Publishing Company voted to merge the two corporations. The Illinois Publishing and Printing Company, the survivor cor- poration, acquired all the stock of the Evening American Publishing Company. It further appears that the relationship between the various corporations and holding companies was somewhat altered during this period. In September 1939 the Illinois Publishing and Printing Company, which had become the owner of the stock of the American Evening Publishing Company, became in turn the wholly owned subsidiary of Hearst Publications, Incorporated, which is the wholly owned subsidiary of Hearst Consolidated Publications, 4 The information upon the business of the respondents is taken from a stipulation entered into between the attorneys for the Board and for the respondents, which con- tains the following statement , "American Newspapers, Inc, Illinois Publishing and Printing Company, solely for the purpose of this proceeding, do hereby concede that the above described operations affect commerce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, and agree not to contest the jurisdiction of the National Labor Relations Board in said respect, at this time or at any subsequent stage of this proceeding or in any court, but in all other respects do not waive the right to contest the legality and validity of any order or finding which may be made by the National Labor Relations Board on this matter ." The respondents fur- ther agreed in the September 1938 hearing on the consolidated cases that the stipulation could be made a part of the consolidated proceedings. AMERICAN NEWSPAPERS, INC. 909 Inc. All the common stock of Hearst Consolidated Publications, Inc., is held by the Hearst Corporation which is a wholly owned subsidiary of American Newspapers, Inc. All the common stock and 85 per cent of the preferred stock of American Newspapers, Inc., is held by Clarence J. Shearn, in trust for William Randolph Hearst. The remaining 15 per cent of the preferred stock is similarly held in trust for other persons. The directors of the Illinois Publishing and Printing Company then determined to discontinue publishing the daily Examiner and to continue to publish only the Sunday morning paper. They also decided to continue to publish a daily afternoon paper. The paper now published daily in the afternoon and on Sunday morning is called the Herald-American. M. C. Meigs, formerly the publisher of the American, has become publisher of the new newspaper, and H. A. Hoehler, formerly the publisher of the Examiner, has become the assistant publisher of the Herald-American. The record does not disclose that the respondents' business has changed in other respects here material. II. THE ORGANIZATIONS INVOLVED Chicago Newspaper Guild, Local 71 of the American Newspaper Guild, is a labor organization affiliated with the Congress of In- dustrial Organizations through the American Newspaper Guild. It admits to membership any person devoting the major part of his time to an editorial, business, circulation, promotion, or advertising department of a news publication in Chicago, except persons whose interests are deemed to lie with the employer as opposed to those of the employees. Newspaper Commercial Associates, Local No. 21662, is a labor organization affiliated with the American Federation of Labor, as a federal labor union. While the record is not entirely clear as to the eligibility rules of the Commercial Associates, it appears that it ad- mits to membership the respondents' employees employed in the cir- culation, advertising, and business-management departments, except employees with the authority to hire and discharge. Chicago Editorial Association, Local No. 21690, is a labor organ- ization affiliated with the American Federation of Labor, as a federal labor union. It admits to membership all employees of the editorial departments of Chicago newspapers. III. THE UNFAIR LABOR PRACTICES The employees of both papers, as we have said, worked in the same building. The two papers adopted uniform labor policies; the boards of directors of the Illinois Publishing and Printing Com- 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .piny and of the Evening American Publishing Company met jointly to determine such policies. Some departments performed work for both papers and for some months all departments of both .papers except the editorial departments were consolidated . There- fore, for the purposes of discussing the alleged unfair labor practices, the two papers will be considered jointly. A. 1936-January 20, 1938 The Guild began organizing the editorial employees of the Exam- iner and of ' the American in 1936. In the late spring of 1937 the Guild commenced work on proposed contracts to present to the ,managements of the papers . In July 1937 , before any proposals were made , the respondents dismissed a large number of employees, and the Guild postponed the submission of the proposed contracts. At that time there was, considerable discussion among the employees As to whether or not the Guild would call a strike . A number of Guild meetings were held on the subject and a conditional strike vote was taken at one of them on or about July 7, 1937 . At about this time, in the course of a conversation with Lee Auld, a pho- tographer and the treasurer of the Hearst unit of the Guild, Maut- ner, the head of the photographic department , said that the em- ployees had been discharged because the papers were in the red and that if a strike vote were taken, it might induce the management to `cease publishing one or both papers. Prior to the meeting when the strike vote was taken , Mautner, knowing Auld was the Guild treas- urer, asked him if there were any members whose dues were not paid 'up and who would, therefore be ineligible to vote at the meeting. Mautner, not a Guild member, also inquired as to the rule upon eligibility to vote and Auld gave him a list of those who were in- eligible. The names of 15 or 20 persons were on the list. Mautner left the room with the list and returned about 30 minutes later. During the 30 minutes while Mautner was away, 8 or 10 Guild mem- bers came in and paid their dues to Auld and restored themselves to 'voting status . A few more came in shortly after Mautner's return and paid their dues. It is a reasonable inference from this evidence, and we find, that Mautner induced at least some of those who came in and paid dues, to do so. The correctness of the inference is further demonstrated by a similar incident which occurred on September 28,1937 , when rumors that the Guild would take a strike vote were again circulating. On the evening of September 28,1937, when Auld came in to work shortly before 6 o'clock, Mautner asked if a conditional strike vote would be taken at the meeting that night. Auld replied that it probably would AMERICAN NEWSPAPERS, INC. 911 be taken. Mautner repeated his observation that thei papers' financial condition was so bad that a conditional strike vote might have the effect of wrecking the papers and throwing the entire staff out of work. Auld told him not to worry, that the Guild would probably not vote to strike. Mautner said that it was up to the members to see that a strike was not voted and inquired whether all the Guild members in the photographic department were paid up and eligible to vote. Auld informed Mautner that five individuals were in arrears in their dues. These were on the day shift and had already left the office. Mautner then volunteered to pay the dues of those who were more than 60 days in arrears, so that the men could vote. He paid $16 to Auld, remarking that he would get it back from the men on pay day. The receipts for the dues were made out to Mautner and given to him in order that he might collect from the men. Later at the meeting, Auld informed one Barclay that Mautner had paid,his (Barclay's) dues. Barclay did not know until then of Mautner's .action and was angry, since he had deliberately stopped paying dues. Whether or not Mautner was repaid does not appear in the record.8 We find, therefore, that in July 1937 Mautner induced some Guild members to pay their dues in order that they might vote in the conditional strike vote, and that in September 1937 Mautner paid dues of certain Guild members with the same purpose in view. This constituted interference with the concerted activities of employees render his supervision. Mautner's statements that it was up to the members to see that the strike vote did not carry and that a strike vote would induce the management to cease publishing the papers, indicate clearly that he hoped to influence Guild action in a way which he conceived to be favorable to the respondents. Mautner, as we have said, was the head of the Examiner photo- graphic staff, and was sometimes referred to as the manager of the photographic department. Mautner assigned work to the photog- raphers, supervised the work in the studio, and but rarely covered an assignment himself. Mautner had authority to make recommenda- tions upon salary increases and to hire and discharge the photog- raphers under his supervision.9 We find that Mautner was the repre- sentative of the management in the photographic department and 8 A strike vote was apparently not taken at the meeting. The Guild voted to turn down a counterproposal made by the respondents 9 The finding that Mautner had authority to hire and discharge is based upon testimony at the third hearing to this effect. Mautner at this time bore the same title as at the time of the second hearing. The record at the second hearing discloses that Mautner had at least authority to make recommendations concerning the hire and discharge of em- ployees but is not completely clear as to whether' he could hire and discharge. The record in the third hearing clarifies the matter. Mautner is not-included in the unit herein found appropriate by reason of his supervisory position. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondents stand responsible for his activities, in the above- described incidents.10 In September 1937 the Guild undertook the organization of the employees in the commercial departments (advertising, circulation, and business management) of the papers and on or about October 1, 1937, presented proposed contracts to the publishers in behalf of the editorial employees. A series of meetings between representa- tives of the papers and of the Guild started at that time and lasted for several months. While these negotiations were going on, the Guild continued its organizational activities among the employees in the commercial departments. On about November 10, 1937, it sent out its first cir- cular in the classified-advertising department. At that time Gold- enberg was manager of the classified-advertising department of the American, and as such he had authority to hire and discharge the employees in the department. Immediately under Goldenberg were lesser supervisory officials called division managers, who were in charge of the four divisions of the ch,ssified-advertising department. After the Guild circular was distributed, Goldenberg called in Clarke, one of the division managers and, referring to the circular, inquired whether Clarke had received the "comic valentine." Miss LaRue, Goldenberg's secretary, was also present. Clarke testified that Goldenberg then asked Clarke whether he would be busy the next night and if not whether he, Clarke, could attend a Guild meeting and find out for Goldenberg if anyone in the department, other than Harold Sullivan,ll was active in the Guild. Clarke further testified that Miss LaRue then stated that she thought Clarke was a more logical person to send to the meeting than some person Goldenberg had previously mentioned. Goldenberg's version of the incident is as follows : When the first Guild communications were sent to the employees of the classified-advertising department, the four division managers came in to see Goldenberg about them and suggested that they attend the meeting. Goldenberg said that it would be a good idea to find out, what the Guild had to offer. Clarke said that he would go and then Goldenberg made a notation as to the time of the meeting. That night Sullivan, who was on night duty, in looking for a piece of paper on which to write a telephone message for Goldenberg, discovered a memorandum on Goldenberg's desk in Goldenberg's handwriting. The memorandum read in part, "Have someone go to 10 Our conclusion is not modified by the fact that Mautner might have been eligible to Guild membership. He was not a Guild member and was clearly acting in his capacity as a representative of the respondents. 11 One of the employees alleged in the complaint to have been discriminatorily dis- charged. AMERICAN NEWSPAPERS, INC. 913 Ashland Block [the place where the Guild meeting was held] Mon- day November 15, 7:30 p. m. . . ." The wording of the memorandum throws doubt upon the accuracy of Goldenberg's testimony. The words "have someone go" are not harmonious with the statement that the original suggestion came from the division managers nor do they bear out Goldenberg's state- ment that Clarke volunteered to go before Goldenberg made the nota- tion. Goldenberg, at a later point in the record, testified that he had told the division managers that he did not know anything about the Guild and that it might be a good idea for them to attend the meeting and see what it was all about. Goldenberg's second state- ment of the incident indicates that the original suggestion came from him. We find that Clarke's version of the incident is substan- tially correct and that Goldenberg induced Clarke to attend the Guild meeting. Goldenberg had authority to hire and discharge. We find that Goldenberg was acting in behalf of the respondents, and that they are responsible for his activities. Clarke testified that between 2 and 4 weeks after the above con- versation, Goldenberg, at the regular meeting with the division man- agers, asked each of them if he knew of any members of his staff who were Guild members, said that it was imperative that he know because a strike vote was pending, and requested the division man- agers to circulate among the men and without arousing fears and suspicions, to try to find out. Clarke testified that Goldenberg fur- ther stated that he felt sure that no one in the classified-advertising department, other than Harold Sullivan, whom he termed "a little rat," would go on a sympathetic strike with the editorial department, but that he wanted to verify that conclusion. Goldenberg's only testimony ,on this incident was that he had called the division managers into his office, told them that he felt that a strike was imminent, and asked them which of the employees would work if a strike was called, regardless of whether or not they belonged to the Guild. He averred that he was not interested in which employees were Guild members. We find that Goldenberg instructed the division managers to discover which of the employees were members of the Guild and sufficiently sympathetic with the Guild and its objectives to go on strike. On the evening of the day when the above meeting with the divi- sion managers was held, Goldenberg rode home with Clarke. Clarke testified that during the ride Goldenberg stated that Shlay, Lackey, and Reynolds were the only employees of the department, other than Harold Sullivan, whom Goldenberg knew to be members of the Guild; that Goldenberg called Reynolds "a little bastard" who 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showed his gratitude for a promotion by joining the Guild; and that Goldenberg further said that he was sending a Miss Sabath to a. Guild meeting to report the proceedings to him on the following morning.1a Clarke further testified that on the following morning he passed Goldenberg's office and looked through the glass partition and saw Miss Sabath in the office, with the door closed. It was un- usual for the door to be closed. Goldenberg's only testimony bearing upon this matter was that he had not sent Miss Sabath to a Guild meeting but that on one occa- sion she came into his office and told him that she had attended a. Guild meeting the night before and that a strike vote had been de- feated. We find that Goldenberg induced Miss Sabath to attend the Guild meeting and report the proceedings to him. Goldenberg testified that he had repeatedly told employees of the department, including the division managers, that they were free to join the Guild if they liked, and that they would not thereby jeop- ardize their jobs. Such general statements do not carry much re- assurance to employees when they are accompanied by overt acts of hostility toward the Guild such as we have found above. As Golden- berg himself testified, he told Clarke that he was disappointed to hear that so many employees of the department had joined the Guild, he felt that it was "sort of a lack of loyalty or confidence in me that they had done that," that it meant that the men thought that he, Goldenberg, was "not in there trying to champion for them." We find that the respondents, through Goldenberg, interfered with, restrained, and coerced their employees in the exercise of their rights guaran- teed by Section 7 of the Act. As we have stated above, negotiations for contracts governing the wages, hours, and working conditions of editorial employees contin- ued throughout the fall of 1937 but no agreement was reached. On about the first of January 1938, all departments of the two papers except the editorial departments 13 were consolidated. As a result of the consolidation a number of employees were discharged. On Janu- ary 16, 1938, the Guild membership, disturbed by the discharges and by the slow progress of negotiations, voted to strike unless specified conditions were met. A few days after the strike vote, a notice appeared upon the bul- letin board in the editorial department, signed by about 18 persons. The signers pledged themselves to work even if a strike became ef- fective. The notice was signed, among others, by a number of the respondents' executives, including Geldhof, night editor of the Ex- 12 Clarke was not at this time a Guild member although he later became one. 13 Although the photographers are a part of the editorial departments, the photographic staffs of both papers were also consolidated. AMERICAN NEWSPAPERS, INC. 915 aminer; Mautner, manager of the photographic division; Blakesby, head of the day copy desk; Barner, news editor; Rachlin, day ed- itor; Williams, Sunday editor; Romanoff, night city editor; and Dav- enport, head of the night copy desk. None of the signers were Guild members. At the same time another notice appeared upon the bul- letin board, signed by about 40 persons, of whom 3 or 4 were Guild members, urging the Guild to reconsider its strike vote. No strike was actually called, however, and on January 20, 1938, contracts governing the editorial departments were entered into between the respondents and the Guild. At the same time the re- spondents posted a statement of the policy referred to in the record as the "90 day freeze." This policy affected the consolidated com- mercial departments and guaranteed that there would be no dis- missals or wage cuts for a period of 90 days. B. January 00, 1938, to the hearing beginning on September 7, 1939 On March 25, 1938, the Guild held its first organizational meet- ing for the branch managers in the circulation department. On the following day another meeting was held for the branch managers by the International Brotherhood of Teamsters, Chauffeurs, Stable- men, and Helpers of North America, herein called the Teamsters Union. The meeting held by the Teamsters Union was first an- nounced by Sabin, then promotion manager in the circulation department, to the district managers at a routine daily meeting in the Hearst Building. The district managers are the immediate supervisors of the branch managers. The city is divided into districts which are headed by district managers; each district contains a number of branches cared for by branch managers who sell papers to the boys who deliver them to the homes of subscribers; the branch managers also collect money from the boys, assist in circulation promotion, and generally supervise the boys. The district man- agers were at that time under the general supervision of one Clay Smith, who was manager of home delivery, and also received orders from Sabin on the production aspects of their work. Sabin was regarded as Smith's "right hand man" and was "in and out" of Smith's office. The district managers considered Sabin their supe- rior and themselves bound to carry out the orders he gave them. We find, therefore, that Sabin was a supervisory official and that the respondents were responsible for his activities. 14 1; District Manager Fisher testified that vOien Sabin instructed him not to allow the branch managers under him to attend Guild meetings, he understood that it was an order by Sabin Sabin also gave orders on circulation promotion to branch managers. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was customary for the district managers, whose headquarters were scattered around the city, to have daily meetings in the Hearst Building with Clay Smith and Sabin. At one of these meetings, as we have said , Sabin told the district managers that the Team- sters Union was holding a meeting to organize the branch man- agers. Sabin told Joseph Cole, a district manager, to "be sure and have your men down there, because if the C. I. O. ever goes over, you will be out of a job and all your branch managers and me too." Sabin instructed the district managers to be sure that all branch managers attended the Teamsters Union meeting and suggested that the district managers arrange to meet the branch managers at dis- trict headquarters and all go to the meeting together in order to -insure the branch managers' attendance. This plan was carried out by some of the district managers. One told the men under him to go if they wanted to continue working, and another told his branch managers that "the office" wanted him to have the men attend. Sabin was at the entrance to the meeting hall when some of the branch managers arrived and explained to at least one group of them that representatives of the branch managers were to be elected at the meeting and named Charles Fisher, Ray Kimberlin, and Paul Anderson as the men who were to be elected as representatives of the Examiner branch managers. John Weisbecker, the office man- ager in the circulation department, was also present at the meeting. The meeting was addressed by officials of the Teamsters Union,; the branch managers discussed some of their problems; Fisher, Kimber- lin, and Anderson were nominated and elected as representatives; and membership application cards were passed out and signed. After the meeting held by the Teamsters Union, Sabin asked the district managers which men had signed Teamsters Union applications. Cole, a district manager, informed, Sabin that all his men had signed up with the Teamsters Union except Collins and Pierce. • Thereafter, Sabin told Cole several times that Collins would make a lot of trouble and advised Cole to make a note of everything Collins did, so that when the time came to "dump" him, Cole would have "the goods on him." No further meetings were held and the Teamsters Union engaged in no further activity with respect to the branch managers. At about this time Sabin told one district manager, A. K. Fisher, that if he were a loyal employee, he would see that his branch mana: gers did not attend Guild meetings and that he could prevent them from attending by holding poker and beer parties which could be financed out of the district manager's expense account. That the suggested method was employed is shown by the experiences of Richard Lee, a branch manager. District Manager Fisher advised Lee not to attend Guild meetings and said, "Lee, you should know i AMERICAN NEWSPAPERS, INC. 917 better than to go to the Guild meeting, because don't you know they are a bunch of Reds, and if this Guild goes in the paper will close their doors." Lee made no reply. Someone suggested a poker game and Fisher bought the branch managers some beer and called an informal meeting of the branch managers under his supervision in the back of a saloon. Fisher asked at the meeting why some branch managers were so insistent on going to Guild meetings. He stated that he was not a "bad fellow" and would try to play along with the branch managers but that he was on the spot because he was the only district manager almost all of whose branch managers had attended the last Guild meeting and everyone was laughing at him. He further stated that he would not fire men for attending the meeting but they could "bet their necks" that he would find some other reason to fire them. Fisher then asked Branch Manager Rus- sell whether he was going to the Guild meeting and Russell replied that if Fisher put the matter to him in that way, he would like to keep his job and would not go. Fisher then told Lee that all the branch managers except Lee and Cain had promised not to go to the Guild meeting. Lee then promised not to attend. Sabin instructed another district manager to attend Guild meet- ings and find out how many of his branch managers were present and to report the information to Sabin. The district manager attended meetings and reported to Sabin on several occasions between March and May 1938. We find that by the above-described activities of Sabin and Fisher, the respondents interfered with, restrained, and coerced their em- ployees in the exercise of their rights guaranteed by Section 7 of the Act. During April and May 1938, the Guild had frequent conferences with the management of the papers, primarily directed to the ex- tension of the "90 day freeze" for another 120 days. The respondents insisted that they could not deal with the Guild in behalf of em- ployees other than those engaged in editorial work since they did not know whether the Guild represented a majority of the employees in an appropriate unit, and took the position that they could not nego- tiate with the Guild in behalf of its members under the provisions of the Act. The respondents were also unwilling to extend the "90 day freeze" by a declaration of policy. The petitions for investigation and cer- tification above referred to were, therefore, filed by the Guild. After the expiration of the "90 day freeze" a number of employees were discharged. Thereafter the Guild distributed numerous circulars to the respondents' employees, both with reference to the respondents' refusal to extend the "90 day freeze" and to the discharges. Appar- 283033-41-vol. 22-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ently at that time there was also some discussion of a,strike among some Guild members. About May 19, 1938, shortly before the first hearing opened, the Guild distributed a circular announcing a pro- posed policy of economic. pressure against the management to en- force its demands. The Guild proposed to urge subscribers to can- cel their subscriptions and to bring pressure upon advertisers .not to advertise in the papers. The record is not clear as to how exten- sively this policy was carried out but it is apparent that some at- tempts were made in that direction. This policy of economic pres- sure disturbed some of the employees in the commercial departments. A group of such employees held a meeting and discussed the Guild's policy. This group did not like the Guild's tactics and thought that they should have some other organization to bargain for them. Pe- titions were prepared to be passed in the circulation, advertising, and business-administration departments. The group of employees asked certain persons to allow their names to be used on the petitions as representatives designated by the signers of the petitions.15 The record does not disclose who prepared the petitions, nor, in most cases, how their circulation was initiated. However, in the case of the circulation of the petition among the branch managers of the circulation department, there is some relevant testimony by Joseph Cole, a district manager on the Examiner. One Thursday near May 20, 1938, Cole received a telephone call from Sabin, who told Cole to have all of his men meet at Cole's headquarters the follow- ing day, Friday. Sabin did not tell Cole what the purpose of the meeting was. On Friday morning when Cole made his routine call at the office, Sabin told him to wait, that he had something for him which would be ready shortly. All the other district managers were also waiting in Sabin's office, he having instructed them to do so. About noon a boy brought in a pile of the petitions about a foot high. Sabin passed out the petitions to the district managers and told them to have the branch managers read and sign them and to return them to his office not later than that evening. Sabin said that "we" wanted to get them in and down to the Board hearing which was to begin within a few days. This testimony was not rebutted, and we find that the events occurred as related above. Sometime in May, apparently prior to this time, Sabin had been made office manager. The change appears to have been 'a promo- advertising 15 The petitions read : "We the undersigned members of the circulation i business administration department of the Chicago Evening American and The Chicago Herald. and Examiner do hereby delegate the following four individuals [different names appear in the petition of each apartment], to act as a committee to represent us in all labor negotiations with the management of these properties." AMERICAN NEWSPAPERS, INC. 919 tion. As office manager his duties were more directly concerned with the inside circulation division than with the outside circulation division. However, in spite of the change in his position, Sabin continued to go around to the branches and give orders, criticize the way the branches were run, and make suggestions for improvement. It therefore appears, and we find, that Sabin was a supervisory of- ficial after the change in his duties as well as before, and that for his actions in requiring the district managers to wait for the petitions and in telling them to have the petitions signed by the branch man- agers, the respondents were responsible. Cole, the district manager, told his branch managers that he had gotten the petitions "from the office" and that they could use their own judgment about signing them. All the branch managers but one signed and Cole returned the petitions to Sabin who put them in his desk drawer. Other district managers returned their petitions to Sabin the next morning. Another district manager, Ross, pre- sented the petition at his regular meeting with the branch managers and said that "we" wanted it signed 100 per cent. No one signed the petition at first and Ross urged the branch managers to sign saying, "We are going to beat the C. I. 0." Another district man- ager, Kemp, told the branch managers that if they were satisfied with their jobs they would sign the petition and if they were not satisfied they should go elsewhere. Some district managers put no pressure upon the branch managers to sign the petition but allowed them to do so if they liked. The respondents objected to some of the testimony concerning the activities of the district managers on the ground that they were such minor supervisory employees that their actions could not be imputed to the management. We find no merit in this contention. The dis- trict managers were, as to the branch managers under them, manage- ment representatives. Their effective power to exercise a coercive influence over the branch managers is plainly illustrated by the inci- dent discussed above, in which District Manager Fisher, by threat- ening to discharge the branch managers under him, succeeded in inducing them not to attend a Guild meeting. In addition, the district managers were acting on Sabin's instructions. Both Sabin and the district managers were using their positions of authority in the instances we have described, and the respondents must bear the responsibility. We find that through the actions of Sabin and the district managers in connection with the petitions, the respondents interfered with, restrained, and coerced their employees in the exer- cise of their rights guaranteed by Section 7 of the Act. There is also evidence of management assistance in the circulation of the petitions in other departments. The insurance, mail-subscrip- 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, and Pollard-Alling departments, subdepartments -of the circula- tion department of the American, were located on one floor, and were under the supervision of one Larson. On about May 20, 1938, Rose Boghasen, an employee in the mail-subscription department, saw a man whom she had seen around the plant but whose name she did not know, in Larson's office talking to him. The man came out of Larson's office shortly thereafter and approached various groups of employees accompanied by Strauch, the head of the insurance sub- department. Strauch called Boghasen over to him and the unidenti- fied man told her that if the plant "went C. I. 0." the employees would have to fight through picket lines, the plant would shut down, the papers would fold up, and there would be no jobs. Strauch was present during the conversation. The man then asked Boghasen to sign the petition and urged that she sign even though she wanted no organization to represent her, because if she did not sign the Guild would represent her anyway. Boghasen signed the petition and the man went on to the other persons. Larson was in his office during part of the time this man was passing the petition. This office was partitioned off from the rest of the room by glass and he could easily see what was going on on the outside. We find that Larson knew what this man was doing and the evi- dence clearly shows that Strauch not only knew of the man's activi- ties but that he gave his assistance and support to them. It further appears that Larson has authority to hire employees since Alice Leoni, an employee in the insurance subdepartment of the circulation department, was hired by Larson. Leoni received general instruc- tions and orders about her work from Strauch. We therefore find that the petition was circulated in these subdepartments with the assistance of supervisory employees. The petition was passed in the business-administration depaitinent by La Favre, the assistant to the manager of the pay-roll department. Beach and Abraham, division managers in the classified-advertising department, who had authority to recommend that employees be hired and discharged, passed the petition in that department. These petitions were made the basis of petitions to intervene in the proceedings at the hearing in May 1938, filed by the committee desig- nated to represent the employees of the several departments by means of the petitions. The intervention of these committees in the pro- ceedings was allowed by the Trial Examiner but they subsequently withdrew in favor of the Commercial Associates. The committees as such are no longer in existence. In the latter part of May 1938, shortly after the petitions discussed above were circulated, Drey, Morrison, and Braveman,16 employees ie Morrison and Braveman were named as representatives of the signers of the petitions passed in the advertising department. AMERICAN NEWSPAPERS, INC. 921 in the, advertising department, met together and discussed the Guild campaign of economic pressure. Morrison and Braveman were two of the individuals who were active in having the above-discussed petitions circulated. On the day following this discussion, the three men held a luncheon which was attended by Cook and Ferdinand, among others, from the commercial departments, both of whom had taken part in the petition circulation. At the luncheon, the Guild campaign was again discussed. Someone present suggested that a similar problem had been met in New York. Drey, then a retail advertising salesman serving certain department-store accounts and later the retail advertising manager for the American, volunteered that he was planning to go to New York in about 3 weeks and that he would investigate what action had been taken in New York. The conferees requested Drey to go immediately. Drey returned to his office late that afternoon and received a message from Beck, a sales- man in the national-advertising department. Beck asked Drey if he could catch the 6 o'clock plane to New York, and Drey went to his superior and told him that he felt sick and would not be in the next day. Drey then went home where he found that a telephone message had been left with the maid advising him that if he would call at the airplane office before 8 o'clock, there would be a pass to New York there for him. Drey did not know who had arranged for the pass, nor did he later make any attempt to find out. When Drey arrived in New York on the following morning, May 31, 1938,.he telephoned. one Finneran, the classified-advertising manager of the New York Journal-American, a Hearst paper in New York. Morrison had told Drey at the luncheon to get in touch with Finneran, who could perhaps give him some information. Drey saw Finneran in his office and told him that he represented several hundred employees (those who had signed the petitions), that they were faced with a difficult labor situation, and that he understood that a similar situation had been met in New York. Finneran at first would not say anything but after considerable urging by Drey, Finneran said that there was 'one person whom Drey could go and see, and that that person was Harvey Kelley. Harvey Kelley was labor relations counsellor for all the Hearst papers 17 and he repre- sented the management in the negotiations leading up to the Guild contracts in the editorial departments of the two Chicago papers. Drey attempted to see Kelley but he was out of town. Drey tele- phoned Finneran twice thereafter but Finneran "would not talk." Drey telephoned a third time and told Finneran that he felt that he 17 Kelley is subject to call by any of the papers and all contribute to his remuneration. His salary is paid by Hearst Enterprises, Inc, whose stock is directly or indirectly con- trolled ' by the.- respondent, American, Newspapers, Inc. Reimbursement is then made to this corporation. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was on a merry-go-round and that he did not like it. Finneran replied, "have you ever tried a ferris wheel?" Drey asked what that meant and Finneran said to think it out for himself. Drey then • called the American Federation of Labor offices, asked for Mr. Ferris and was referred to Vincent Ferris, head of the Allied Printing Trades Council in New York. Drey told Ferris of the situation in Chicago and Ferris said that the person Drey should see was one Marsh, organizer for the American Federation of Labor. Just before Drey saw Ferris he received the following telegram : See Molley Bickel and Tommy King. Also contact Rock at- torney with Broadway office. If all else fails, go Gen man and snoop. BUTCH. Drey testified that he knew no one called "Butch" nor could he ex- plain the "Rock attorney with Broadway office." However, Drey met with Bickel and King, employees in the commercial departments of the Journal-American, and they explained to him that they were working with Marsh in organizing a federal labor union affiliated with the American Federation of Labor, called the American Ad- vertising Associates. He then returned to Chicago. Beck, the man who called Drey and told him about the airplane pass, testified that he had been requested to make the arrangements for the pass by one Hecht. Prior to the consolidation of the papers, Hecht was advertising promotion manager on the Examiner, and after the consolidation of the departments he was assistant to Gould who was the manager of the combined departments 18 The record does not disclose how Hecht became interested in the matter or how he knew that Drey contemplated the trip to New York. Acting upon Hecht's request, Beck told Caesar, the travel editor of the combined papers, that the request had been made and asked him to procure the pass.19 Beck testified that his work was primarily con- cerned with travel advertising and that if a pass were to be obtained he was the best person to get it. Beck further stated at the hearing that he had never been told to get passes for anyone before and that although he had at other times requested Caesar to procure passes for him, the requests had not been honored. "The respondents' counsel described Hecht's duties as follows. he handled promotion matters and copy and had responsibilities approximately equal to Gould's He plans, writes, and executes promotion campaigns and promotes contests, chiefly for advertising purposes. He does not hire or fire. At the heaiing in September 1939 it was stipulated that the promotion manager should be excluded because he was an executive. It appears that Hecht was an executive and a part of the management 19 The travel editor, Caesar, at that time edited the travel pages of both papers, wrote stories on vacation places and saw that this page was properly laid out. He had two assistants. AMERICAN NEWSPAPERS, INC. 923 From the above we find that Drey was assisted in making his trip to New York by the respondents through the activity of Hecht, who was then assistant advertising promotion manager and an execu- tive, of Beck, who solicited advertising for the travel page, and of Caesar, who edited the news which went into the travel page. It is extremely unlikely that the airplane company would have honored Caesar's request except for his official connection with the respondents and it is noted that Caesar had not in the past honored Beck's re- quests when they had come from non-official sources.2° On June 1, 1938, bulletins were passed out to the respondents' em- ployees announcing a mass meeting for all unorganized workers on the following day. The bulletin did not disclose who had called the meeting but it appears from the record that the same employees re- sponsible for the passage of the petitions and for Drey's trip to New York were generally the organizers of the meeting. On the same day, Sabin told Cole, a district manager, and other district managers in Cole's presence, that such a meeting was being held and that the dis- trict managers should get all branch managers to attend the meeting. Sabin asked Cole how many men he could induce to attend and told him that he would have trouble with two individuals.-1 Sabin then gave out tickets to the district managers to pass on to the branch managers. Cole then told the branch managers that he had received information on the meeting from "the office" and that it would be a good idea to go and listen to both sides of the story. Another district manager, Ross, told several branch managers that he wanted them to be sure and attend the meeting and that the purpose of the meeting was to beat the C. I. O. He arranged to have the branch managers meet him at headquarters and go down to the meeting together. Miss Boghasen was told about the meeting by her imme- diate superior, Gildea,22 who asked Boghasen to go, saying it was im- portant and that Larson (Gildea's immediate superior) would like the employees to go. We find that the respondents, through Sabin, certain of the dis- trict managers, and Gildea, attempted to induce their employees to attend the meeting of June 2, 1938. Morrison acted as chairman of the meeting, Cook as secretary. Morrison addressed the meeting and discussed the economic pressure policy of the Guild, saying that if it were allowed to continue it 20 Drey was reimbursed for the other expenses of his trip ' by Newspaper Commercial Associates , a labor organization discussed below. 21 The two men were Collins and Pierce who had been reported to Sabin as persons who attended Guild meetings 22 Gildea has authority to make recommendations concerning the hire and discharge of empldyees under his supervision 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might jeopardize the employees' jobs. Other speeches were made and Drey recounted the story of his trip to New York. Representa- tives from the various departments were elected to a committee which would investigate the various types of labor organizations and make recommendations thereon. When it was time for the branch man- agers to select their representatives, Sabin took the chair and con- ducted the election. The name, "Emergency Committee for a Uni- fied Front," was adopted for the organization. The next morning, June 3, 1938, Sabin asked the district managers which branch managers had attended the meeting and which had not. Cole reported that Branch Manager Collins had not attended the meeting. Shortly thereafter Clay Smith, manager of home cir- culation, who has authority to hire and discharge the employees work- ing under him, inquired from Cole whether Collins was doing a good job. Cole replied that Collins was not doing so well he "guessed." Cole testified that he made the reply he did because he felt that it was the desired reply in view of Sabin's past conversations with him concern- ing Collins.23 Also on the morning following the June 2 meeting one district manager, Kemp, acting on instructions from Sabin, told three of his branch managers to go to the Hearst Building and meet Sabin. They met Sabin at the door and he instructed them to pass out cir- culars to the people entering the building. The circulars were signed by the Emergency Committee for a Unified Front and re- ported on the meeting of June 2, 1938. The representatives elected at the June 2 meeting thereafter held meetings to decide whether the organization should, remain inde- pendent or whether it should affiliate with a national organization. They consulted with a university professor who advised against an independent union. Certain of the representatives also had discus- sions with officials of the American Federation of Labor and on June 8, 1938, Victor Olander, an official of the Illinois Federation of Labor, addressed the representatives concerning the advantages of affiliation with the A. F. of L. The representatives then determined to recommend to the group that they affiliate with the A. F. of L. Accordingly a second mass meeting was held on June 13, 1938. Ad- mittance to the meeting was again by ticket only, the names of each individual being written on the ticket. The tickets, in some in- 23 As noted above, Sabin had advised Cole on several occasions to watch everything Collins did in order to have "the goods on him" after the Teamsters Union meeting He was also one of the employees who was reported to Sabin as having attended Guild meetings. Collins was discharged immediately after Cole 's interview with Smith. He is not one of the employees whom the complaint alleges to have been discriminated against by reason of his union activities , and we therefore find it unnecessary to determine whether or not Collins was in fact discharged because of his failure to attend the meeting. AMERICAN NEWSPAPERS, INC. 925 stances, were given to the branch managers by the district managers. Tickets were also given out to employees by Strauch, head of the insurance department, and by Gildea, head of the mail-circulation department. Gildea told one employee, who said she could not go to the meeting, that she should go if she wanted to keep her job. Strauch told one employee that she ought to go to the meeting since Larson wanted the whole department to go. It was explained at the meeting that the petitions to intervene which had been filed in the Board hearing then in progress would be withdrawn in the event that those who had designated a committee to represent them merged into one group and affiliated with the A. F. of L. The group pres- ent at the meeting voted to affiliate with the A. F. of L. and the name Newspaper Commercial Associates was adopted. Membership ap- plication cards in the A. F. of L. were distributed. Strauch, head of the insurance department, handed one of the application cards to Alice Leoni, an employee under his supervision, and when asked by Leoni what benefits she would receive from the A. F. of L., stated that it was important to join because the Guild was working against the papers and attempting to wreck them and since they were not making money they would have to close their doors. He further told 'her that the Guild was ruthless and radical and the employees would eventually be without jobs because of the Guild. Within a day or two after the June 13 meeting the three inter- vening petitions were withdrawn from Case No. R-839 and the re- quest was made that the Commercial Associates be considered as intervenors under the intervention of the A. F. of L. The Com- mercial Associates are intervenors in the consolidated cases. At about the time the organization of the Commercial Associates was completed in June 1938, organizational activity which resulted in the organization of the Editorial Association was initiated by a number of editorial-department employees of the Examiner. The factors which influenced the employees to take this action appear to have been a dissatisfaction with the Guild's abandonment of the craft form of organization and its policy of economic pressure. A charter was granted to the Editorial Association on July 11, 1938, by the A. F. of L. As noted above, a hearing was held commencing on September 29, 1938, upon charges filed by the Guild alleging inter alia, that the respondents had encouraged and urged their employees to join the Commercial Associates and the Editorial Association. On December 5, 1938, the Guild called a strike against the respond- ents and the Guild contracts expired about January 21, 1939. Shortly after the expiration of the Guild contracts, the respondents entered into separate collective bargaining agreements with the Edi- torial Association in behalf of their members employed in the edi- 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD torial departments of the two papers, such contracts being made expressly subject to the "terms and conditions" of the Act and to "proceedings taken in accordance therewith." On May 25, 1939, the respondents also entered into separate contracts with the Com- mercial Associates in behalf of its members employed in the, com- mercial departments of the two papers, which contracts were also made expressly subject to the Act and proceedings taken thereunder. On August 28, 1939, articles of merger were filed completing the above-mentioned merger between the respondents, Evening American Publishing Company and Illinois Publishing and Printing Company, in which the latter was the surviving corporation. As we have also stated above, the directors of the surviving corporation decided to publish only one newspaper, the Herald-American, daily in the afternoon and on Sunday morning. C. Conclusions in respect to the Commercial Associates The complaint alleged that from on or about May 26, 1938, the respondents suggested, advised, urged, and warned their employees to join the Commercial Associates and its predecessor committees, permitted representatives of Commercial Associates and its prede- cessor committees to solicit membership during working hours, and in other ways encouraged and urged their employees to join the Commercial Associates and its predecessor committees ; and that such activities constituted interference with, restraint, and coercion of their employees within the meaning of Section 8 (1) of the Act. It is clear that the three committees designated by the petitions passed around in the three commercial departments, and the organi- zation which bore, for a period of 11 days, the name of Emergency Committee for a Unified Front were, in fact, predecessors of the Commercial Associates. The representatives designated at the June 2, 1938, meeting of the Emergency Committee for a Unified Front investigated possible forms of labor organizations and reported their recommendations at the mass meeting of June 13, 1938, at which those present voted to adopt the name of Newspaper Commercial Associates and to affiliate with the A. F. of L. At the meeting of June 13, 1938, it was stated that if those present voted to affiliate with the A. F. of L. the three employee committees would withdraw their intervention in the proceedings then pending. The three com- mittees thereafter did withdraw from the proceedings. We consider the three employee committees and the Emergency Committee for a Unified Front as successive stages in the organization of the Com- mercial Associates and any evidence relating to the formation and administration of these committees relates, in fact, to the organization- of the Commercial Associates. AMERICAN NEWSPAPERS, INC. 927 , The respondents and the Commercial Associates contended that any evidence that the respondents had interfered with the formation or administration of the Commercial Associates by urging and en- couraging the employees to join it was inadmissible under the alle- gations of the complaint and that such evidence would have been admissible only if the complaint had alleged that the respondent had dominated and interfered with the formation and administration of the Commercial Associates and had contributed support thereto within the meaning of Section 8 (2) of the Act. We find no merit in this contention. We have summarized above the history of the Guild's attempt to organize the commercial departments of the two papers. From the beginning of this attempt, the Guild was met with the respond- ents' resistance to the extension of Guild membership into those departments. The activities of Goldenberg, the manager of the classi- fied-advertising department, made the respondents' attitude abun- dantly clear. He not only referred to persons who joined the Guild as "little rats" and "bastards" within the hearing of other employees, but he also attempted to send one employee to a Guild meeting to find out who attended it, did send another employee to report to him who attended a Guild meeting, and requested the division man- agers to find out which of the employees were sufficiently interested in the Guild to go out on strike. That employees other than the division managers were aware of Goldenberg's activities is shown by Sullivan's conversation with him in December 1937, when Sullivan told Goldenberg he should not inquire of persons whether or not they were Guild members and Goldenberg's reply that he had not "directly" done so. Sullivan was the person who discovered Golden- berg's notation to send some one to a Guild meeting. In the circulation department, as soon as the Guild attempted to organize the branch managers, the respondents, through the activi- ties of Sabin, gave vigorous assistance to the attempt of a rival organization, the Teamsters Union, to organize the branch managers. As stated above, pressure was put upon the branch managers to attend the Teamsters Union meeting and Sabin subsequently checked with their supervisors to see which branch managers did not sign application cards.24 Sabin also sent an employee to Guild meetings to report to him upon which employees attended them and advised one of the district managers to use the respondents' funds to finance parties in order to prevent the branch managers from attending Guild meetings. 24 For reasons which do not appear in the record , the Teamsters Union did nothing more than hold the one meeting 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These activities of the respondents' agents were carried on in an atmosphere of great insecurity. The respondents had found it nec- essary, from time to time during the preceding months, to discharge a substantial number of employees, and it was feared by the em- ployees that there would be further discharges in the future. Vari- ous supervisory officials warned that the papers were not making money and knowledge of this fact appears to have been rather wide- spread among the employees. Under these circumstances the em- ployees, dependent upon the respondents for their livelihood, were peculiarly sensitive to any wish that the respondents or their super- visory agents might express or convey to them. In May 1938, when petitions were passed in the commercial depart- ments designating the employee committees as representatives, this atmosphere of insecurity had increased rather than abated because of the termination of the "90 day freeze" arrangement. Under these circumstances, when branch managers were told by district man- agers that the petitions had come from "the office" and were thereby in effect informed that the respondents desired that the petitions be signed, they were quick to accede to the respondents' desire. One. district manager made the threat to their economic security, if they failed to sign, more explicit by telling the branch managers that they would sign the petitions if they were satisfied with their jobs. In the circulation department Strauch warned at least one employee that if the employees designated the Guild to represent them the papers would "fold up." Strauch, a supervisor, was at that time assisting a person to circulate the petition, under circumstances which indicated that his own superior, Larson, was aware of what was going on. Similarly, in the advertising department, the petitions were circulated by division managers who had authority to make recommendations concerning the hire and discharge of employees. From the foregoing, we find that from the very beginning the organization of the Commercial Associates was assisted in a sub- stantial manner by the activities of supervisory agents of the respondents .15 We have found that the respondents contributed assistance to the organization of the Commercial Associates by procuring an airplane pass for Drey to New York. The whole incident of Drey's trip to New York, his conversation with Finneran concerning "ferris wheels," his subsequent telephone call to the A. F. of L., and the telegram from an unknown "Butch," is so incredible that we are ¢a There is some evidence that notices were posted by the management stating that the employees were free to Join any organization they desired , although the notices them- selves are not in evidence. We have considered this evidence and find it insufficient to affect our findings that the employees ' free exercise of their rights under the Act was interefered with in a substantial manner. AMERICAN NEWSPAPERS, INC. 929 convinced that the record does not contain a full account of what actually transpired. However, the record does establish that the respondents assisted Drey to go to New York, and that this trip was one of the steps leading to the final organization of the Com- mercial Associates. The interest of the respondents in and their interference with the organization of, the Commercial Associates is further disclosed by the activities of Sabin and other supervisors in inducing em- ployees to attend the mass meeting of June 2, 1938, by Sabin's use of his official position to have branch managers sent to the Hearst Building by their district managers to pass out a circular to em- ployees; and by Sabin's questioning of district managers as to which branch managers had not attended the June 2, 1938, meeting. While the Guild campaign of economic pressure upon the re- spondents was probably a factor contributing to the organization of the Commercial Associates, we find that it was not the principal one. The Guild's campaign provided supervisory employees, who were interested in keeping the Guild out of the commercial depart- ments, with a convenient argument in favor of the organization of the Commercial Associates and a means of frightening the em- ployees into taking action to defeat the Guild. We find, therefore, that the respondents encouraged and urged -their employees to join the Commercial Associates and thereby in- terfered with, restrained, and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act. D. Conclusions in respect to the Editorial Association The complaint alleged inter alia that the respondents suggested, advised, urged, and warned their employees to join the Editorial Association, solicited membership in the Editorial Association, and in other ways encouraged and urged their employees to join the Edi- torial Association. The Trial Examiner found that the evidence was insufficient to support these allegations in the complaint. We have reviewed the evidence and agree with the Trial Examiner. We shall dismiss the complaint in this regard. E. The discharges The third amended and consolidated complaint alleged that the respondent, Evening American Publishing Company, on or about January 15, 1938, discharged Harold Sullivan and on or about May 6, 1938, discharged Howard L. Mayhew, both of whom worked on the American, for the reason that they joined and assisted the Guild. The complaint also alleged that the respondents, Illinois 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Publishing and Printing Company and 'American Newspapers, Inc., discharged Harry C. Read on October 3, 1938, because he joined and assisted the Guild and because he gave testimony on September 30 and October 3, 1938, at the Board hearings in this case. In his Intermediate Report, the Trial Examiner found that the allegations of the complaint as to Mayhew were sustained by the evidence, but that those as to Sullivan and Read were not. The Guild has filed exceptions to the Intermediate Report as to Sullivan and Read. We shall discuss each individual case separately. Harold Sullivan, started working in the classified-advertising de- partment of the American in 1929 when he was about 15 years old. During the last year and one-half of his employment , Sullivan occu- pied the position of night man on the classified -advertising copy desk. On about November 10, 1937, Sullivan came to work and found letters from the Guild on the desks of all the employees in the de- partment . Goldenberg, the manager of the department, whose activities have been discussed above, called Sullivan in and asked him whether he had joined the Guild. Sullivan replied that he had not joined and Goldenberg remarked that he could if he liked and then inquired whether Sullivan had furnished the Guild with the names of the employees in the department . Sullivan denied that he had furnished the Guild with such a list. Sullivan signed a Guild application on that day or the next. A few weeks later Goldenberg inquired from his division managers whether any of the employees had joined the Guild and one of the division managers remarked that Sullivan had been "snooping " around one member of the staff and might have been soliciting him to join . Goldenberg said that he thought no one in the department would go on strike with the edi- torial department except Sullivan , to whom he referred as a "little rat." Goldenberg did not deny that he had so referred to Sullivan. We find that Goldenberg at this time knew that Sullivan was inter- ested in the Guild and active in its behalf. Sullivan, together with Mayhew, became very active in organiza- tional work immediately after he joined the Guild, soliciting membership among the employees of the commercial department. Sullivan succeeded in signing up a substantial number of Guild members. He was appointed to the organization committee and rep- resented the commercial -department workers in the Guild's represent- ative assembly. On December 24, 1937, at a Christmas party held at the office, Sullivan told Goldenberg that he was a Guild member, said that he had heard that Goldenberg was asking persons whether they were Guild members, and stated that Goldenberg should cease making such inquiries. Goldenberg told Sullivan that he could join anything he AMERICAN NEWSPAPERS, INC. 931 liked and averred that he had not "directly" asked anyone whether lie was a Guild member. As we have stated above, many of the operations of the two papers were consolidated beginning in January 1938. The classified-adver- tising departments were consolidated on January 14, 1938. Sulli- van was discharged at that time along with 45 other persons, about 22 being from one paper and 23 from the other. A larger percentage of American than Examiner employees were discharged. The de- cision as to who was to go was made in discussions between Golden- berg and Robert Shless, the classified-advertising manager of the Ex- aminer. Shless, who became the manager of the consolidated departments, testified that he and Goldenberg chose the most effi- cient and best trained men for positions in the consolidated depart- ments and that they did not consider the question of Guild affiliation. Goldenberg testified that seniority had some weight with them and that they sometimes kept an older employee who was less efficient than some who were dismissed, although there was no fixed seniority rule. Shless testified that they took seniority into consideration only when persons were of equal ability. As a result of the discussions it was determined that one Bianci, who had been at the copy desk on the Examiner 26 since October 1937, would have the same position in the consolidated departments and that Sullivan should be discharged. It is the respondents' position that the work at the copy desk on the Examiner was considerably heavier than that on the American be- cause the Examiner carried more classified advertising; that the work on the Examiner had included several operations which had not been performed on the American; that the work on the Examiner had re- quired more training and experience than that on the American ; that the consolidated operation, which would run the same advertisements in both papers, would be run according to the methods previously used on the Examiner; and that it would probably have taken Sulli- van several months to have learned the new routine. There is con- vincing evidence in the record to support the respondents' contention concerning the difficulty of the copy-desk job and their contention that Sullivan could not have run it as well as Bianci without some preliminary training, and we so find. There is some disputed evi- dence in the record concerning Sullivan's alleged tendency to be late for work. However, since the respondents do not suggest that this was in any way responsible for the discharge, we do not consider it as having any bearing on the issue. Because of the larger amount of work involved in the consolidated operation of the department, a number of employees did the various types of work formerly done by Sullivan on the American. One of 26 Bianci was not a Guild member. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these was the assistant to Bianci on the copy desk of the consolidated departments, one Scott. She had been hired as a mail clerk in De- cember 1936, and on November 23, 1937, she was made assistant on the copy desk of the Examiner. Sullivan had been employed for about 7 years longer than Scott. Shless testified that seniority would not have governed as between Scott and Sullivan, because Scott was more experienced. However, Scott had been the assistant on the copy desk for less than two months at the time of Sullivan's dis- charge, as compared with Sullivan's year and a half of service as nightmare on the American copy desk. She therefore had very little more experience than Sullivan with the larger volume of advertising formerly carried by the Examiner and thereafter by the consolidated operation. We are not persuaded that Goldenberg and Shless pre- ferred Scott to Sullivan because of her allegedly greater experience. Scott was not a Guild member. Shless denied that he knew Sul- livan was active in the Guild before the consolidation was completed. However, the fact that Sullivan was very active in the Guild appears to have been generally known about the plant and Goldenberg knew that Sullivan was an active Guild member. Sullivan testified that he made no attempt to conceal his activities. We do not, therefore, find Shless' statement persuasive, and in any event Goldenberg, who jointly with Shless determined which employees were to remain, knew of Sullivan's Guild membership. It is also apparent from the record that Goldenberg, in spite of his general statements that employees were free to join the Guild if they liked, was extremely hostile to the Guild. His hostility extended to the point of sending employees to spy upon meetings. In view of Goldenberg's knowledge of Sullivan's Guild affiliation and his hostility to the Guild, we find that Goldenberg took advan- tage of the opportunity offered by the consolidation to get rid of an active Guild member, and that Scott was retained rather than Sulli- van as assistant on the copy desk because of Sullivan's membership in and activity in behalf of the Guild.2T Prior to his discharge, Sullivan was earning $18 'a week. He worked on W. P. A. projects from March 14, 1938, until the time of the hearing. He earned $65 a month from March 14, 1938, until August 1, 1938, and $85 a month from that date until the time of the hearing. He desires to return to his job with the respondents. Howard Mayhew worked in the merchandising department, which is part of the Hearst International Advertising Service, sometimes I n The Trial Examiner, in recommending dismissal of the complaint as to Sullivan , did not make any findings regarding the retention of Scott rather than Sullivan as assistant on the copy desk. His findings were restricted to the validity of the respondents ' preference of Bianci over Sullivan. AMERICAN NEWSPAPERS, INC. 933 referred to as the "Rodney Boone Organization." The respond- ent Evening American Publishing Company finances the merchan- dising department of Hearst International Advertising Service in Chicago. There is some question on the `record-as to whether May- hew should be considered an employee of the respondent American Newspapers, Inc., or the respondent Evening American Publishing Company. Mayhew deemed himself an employee of the latter, and the respondents make no particular issue of the matter. We have considered the evidence on the point and find that Mayhew was an employee of the respondent Evening American Publishing Company. Mayhew started work in the merchandising department in 1928. His work consisted of the preparation of plans, charts, graphs, summaries of field work, and advertising solicitation material, and making calls with solicitors of national advertising. No one else in the department did the same type of work until one William Hoote was employed in October or November 1937. Brink, who was then the manager of the department, told Mayhew that he wanted him to teach Hoote, Mayhew's duties as quickly as possible. Brink testified that he had employed Hoote at that time because Mayhew had been trying to find a job as a salesman for some time and since the department was undertaking a rather lengthy study, he did not want to be left in the middle of it without the assistance of someone who understood the work. Hoote had done rather similar work be- fore, but never in connection with a newspaper, and Mayhew "broke him in" to the work. Mayhew and Hoote worked together until Mayhew was discharged on May 7, 1938. Mayhew joined the Guild on November 2, 1937, and was the first member in his department. As soon as he had joined, Mayhew, with Harold Sullivan and two others, formed themselves into an organiz- ing committee to procure members. The committee's efforts were directed primarily to the commercial departments where they all worked. The committee was successful in getting a substantial number of members. Mayhew was made acting controller of the Guild in the advertising department in November 1937, and elected to that office in January 1938. He was the chairman of the emer- gency committee set up in January 1938 to deal with the many discharges which occurred at that time. As such his name frequently appeared on Guild bulletins distributed at the plant. Mayhew also attended, as an observer, some of the meetings which were being held between the Guild and the respondents to negotiate a contract. Some time prior to January 20, 1938, Guild circulars were distributed in the department and Brink called Mayhew and another employee aside and asked them if they knew of any Guild members in the department. Mayhew replied that he, himself, was a Guild member. 283033-41-vol 22-60 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brink replied that it was "nothing" to him and asked Mayhewtdwhat he expected to get out of the organization. Brink then expressed the opinion that the Guild would not amount to anything. In March- 1938 the merchandising departments of the American and the Examiner were consolidated. Brink testified that when the consolidation took place it was necessary to increase the field work since more calls had to be made, but that the planning work, which was Mayhew's, was not increased since one plan would do for both papers. He also testified that operating costs then went up but that the budget was not increased, and that it became necessary to cut costs by $100 a week, which represented the cost of the extra field work. On May 7, 1938, Brink discharged Mayhew,_ who was earn- ing $45 a week, and Mueller, former head of the Examiner mer- chandising department, who was earning $50 a week, making a sav- ing of $95 a week. Brink explained' at the hearing that he had discharged Mayhew, who had been employed by the respondents for 10 years, instead of Hoote, who had been employed for a few months, because Hoote's salary was $30 a week and that if he had discharged Hoote and Mueller the saving would have been only $80 a week. To bring the savings up to the desired $100 a week, a field man would have also had to go; field men's salaries were $20 to $25 a week. Brink testified that he could not have done that since he needed man power in the field work. However, as appears below, Brink later retained an extra field man who was not needed. The consolidation of the merchandising departments of the two papers did not last very long and they were again separated into two departments in August or September 1938. After the decon- solidation, the department no longer did work for the Examiner and no longer needed so large a field staff. Brink testified that at this time the revenues of the department were lower than in May 1938, prior to the consolidation. In spite of the lower revenue, the de- partment kept on an extra field man. Brink admitted that there was no present need for this extra field man, although he might be needed if sufficient work came in. The Trial Examiner found that "to discharge a capable employee with 10 years of admittedly outstanding service in preference to one with less than 1 year's service, and less actual experience, on grounds of economy and then subsequently when income is less, retain an- other employee for whom the need is problematical is not only incon- sistent but contrary to normal business acumen: The defense is not convincing." We agree with the Trial Examiner in this regard. We are satis- fied that the normal course for the respondent to have followed in May 1938 would have been to dismiss Hoote rather than Mayhew. AMERICAN NEWSPAPERS, INC. 935 Brink did not claim that Hoote was more capable than Mayhew. The assertion that the $15 weekly difference in their salaries was the motivating factor in Hoote's favor seems implausible in view of the subsequent retention of the unnecessary field man at a time when revenues were even lower. We find that the respondent, Evening American Publishing Company, availed itself of the opportunity offered by the consolidation and the necessity therein entailed of cutting down the force, to rid itself of a very active Guild member. We find that in choosing Mayhew as the person to be discharged, the respondent was motivated by considerations of Mayhew's Guild mem- bership and activity. Mayhew was unemployed from the time of his discharge until June 8, 1938, and earned nothing during that period. From June 8, 1938, he was employed by Advertising Distributors of America, earning $35 a week .211 Harry C. Read had worked for the respondents in various capaci- ties since 1921, except for a brief period in 1935. At the time of his discharge, he was a reporter on the Examiner. His discharge fol- lowed immediately after his testimony at the Board hearing on October 3, 1938. The respondents' position is that Read was dis- charged because he had taken certain pictures from the Examiner's reference room and supplied them to the "True Detective" magazine to illustrate a story he had written for that publication. It appears that the respondents had received from the magazine the prints sup- plied to it by Read, and had ascertained that the prints bore the file numbers of envelopes in the Examiner's reference room containing pictures relating to the same subject matter. Read was discharged promptly after this information was uncovered. Read was an active Guild member and this fact was known to the management. The Trial Examiner found that the evidence failed to sustain the allegations of the complaint in regard to Read's discharge. We do not deem it necessary to detail all the evidence relating to the allegedly stolen pictures. We have reviewed it, and are satisfied that the respondents discharged Read because they believed he had stolen the pictures from the Examiner files, and not because of his Guild activity or his testimony at the Board hearing. The 'allegations of the complaint regarding Read's discharge will be dismissed. We find that the respondent, Evening American Publishing Com- pany, by discharging Harold Sullivan and Howard Mayhew, has discriminated in regard to their hire and tenure of employment, 28 It appears from the record that the respondent, Evening American Publishing Com- pany, has offered Mayhew reinstatement and back pay pursuant to the Intermediate Report. This is discussed below under "The remedy." 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby discouraging membership in the Guild and interfering ' with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the respondent, Evening American Publishing Company, has not discriminated in regard to the hire and tenure of employment of Harry C. Read. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III above, occurring in connection with the operations of the respond- ents described in Section I above, have a close, intimate, and sub- stantial relation 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. V. THE REMEDY We have found that the respondents have engaged in certain unfair labor practices. We shall, therefore, follow our usual practice and order the respondents to cease and desist their unfair labor prac- tices and to take certain affirmative action designed to effectuate the policies of the Act and to restore, as nearly as possible, the situation which existed prior to the commission of the unfair labor practices. We have found that the respondent, Evening American Publishing Company, by discharging Harold Sullivan and Howard Mayhew, engaged in unfair labor practices. As indicated above, counsel for the Guild and for the respondents stated at both oral arguments that the respondent, Evening American Publishing Company, had offered reinstatement to Mayhew following issuance of the Intermediate Report. Counsel for the Guild attacked the adequacy of such an offer since the Guild strike was current at the time and Mayhew could not have accepted the offer without repudiating the strike.' We agree that Mayhew's right to reinstatement should not be prejudiced by his inability to accept the respondents' offer without repudiating the strike. So far as the record shows, the strike may still be in progress. As to both Mayhew and Sullivan, we will order the respondents to offer them reinstatement upon application by them. However, the respondents should not be required to reimburse them with back pay for any period during which they are unwilling to accept reinstatement because of the strike. As to Mayhew, his back pay shall stop as of the date of the respondents' prior offer of rein- statement, following the Intermediate Report, and will only start again upon any refusal to reinstate him' upon his application. As to Sullivan, since the Trial Examiner recommended dismissal of the AMERICAN NEWSPAPERS, INC. 937 complaint as to him, we shall follow our usual practice and stop his back pay as of the date of the Intermediate Report. As in Mayhew's case, back pay for Sullivan will start again upon any refusal to reinstate him upon his application. In each case, the back pay shall be equal to the amount he normally would have earned as wages during the period in question, less his net earnings 20 during that period, and also less the separation indemnity paid to him by the respondent Evening American Publishing Company. We have found that the respondents urged and warned the employ- ees to join the Commercial Associates and assisted in its formation. The difference in the respondents' treatment of the two organizations and the resulting effect upon the employees' freedom of choice of representatives will not be remedied merely by an order to cease and desist from such practices in the future. The effect of acts of the respondents will continue without future acts unless affirmative action is taken to put the parties in status quo. Under these circumstances, we shall order the respondents to withhold recognition from the Com- mercial Associates unless similar recognition is granted to the Guild as the representative of its members, or unless and until the Com- mercial Associates is certified by the Board as the exclusive bargaining representative in an appropriate unit 30 After the issuance of the Intermediate Report, the respondents posted cease and desist notices in the plant, as recommended in the Intermediate Report. The Guild has urged that such posting was ineffective, since it did not reach the strikers outside the plant. Under all the circumstances of the case, we will order the respondents to supply the Guild with four copies of the notice described in our Order below, for posting by the Guild in places accessible to the strikers. The respondents have moved that American Newspapers, Inc., be dismissed as a party respondent since it was not directly concerned with the alleged unfair labor practices. We find no merit in this 29 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, 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 30 Matter of Eagle-Picker Mining & Smelting Company , a corporation, and International Union of Mine, Mill & Smelter Workers, Locals Nos 15, 17, 107, 108, and 111, 16 N. L R. B. 727. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request. Our order will run against American Newspapers. Inc., as well as against. the other respondents.31 VI. THE QUESTION CONCERNING REPRESENTATION As indicated below, there is dispute concerning the ' appropriate unit or units and also concerning representation within such unit or units. Since the contracts entered into by the respondents with the Edi- torial Association and the Commercial Associates in behalf of their members, were executed while these proceedings were pending and were, in recognition of this fact, made expressly subject to proceed- ings taken pursuant to the provisions of the Act, they constitute no bar to these proceedings. We find that a question has arisen con- cerning the representation of the respondents' employees.32 VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondents described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 31 In National Labor Relations Board v. William Randolph Hearst et at., 102 F. (2d) 658 (C. C A. 9), where the contention was made that American Newspapers, Inc, and certain other holding companies should not be parties to the proceedings, the court stated : In so far as the order commands all respondents to cease and desist the coercion of employees, we think the order should be enforced Because of the unified control, the only way of effective prevention of the unfair labor practices, is to compel all respond- ents to cease and desist the unfair labor practices. All act "directly or indirectly" for Hearst Publications, Inc, the nominal employer here, which brings them within the definition of "employer" which is included in the term "person" [as found in the Act ]. As stated above, both the Illinois Publishing and Printing Company and Evening Ameri- can Publishing Company were and are directly or indirectly controlled by American Newspapers, Inc The situation here presented is like that presented in the above-quoted Hearst case and American Newspapers, Inc., is a proper party 32 It appears from the record that the respondent has a number of contracts with various American Federation of Labor craft unions in the mechanical departments and elsewhere but these contracts are In no way affected by the present proceedings None of these unions, all of which intervened in the proceedings, and some of which subsequently with- drew, claim that any of the employees included in the units sought by the Guild, Commer- cial Associates, or the Editorial Association, were covered by their contracts with the respondents or that their jurisdiction was invaded. We find that the employees included in the units urged are not presently covered by contract other than those of the Editorial Association and the Commercial Associates. AMERICAN NEWSPAPERS, INC. ,rv VIII. THE APPROPRIATE UNIT 939 These proceedings have necessarily continued over a long period of time. During this period the several parties have from time to time changed. their contentions as,to the unit or units claimed to be appro- priate, largely because of changes which have taken place in the respondents' operations and corporate structure during this period, the organization of new labor organizations, and the expiration of contracts. It serves no good purpose to set out the contentions of the parties as to the appropriate unit or units at the various stages of these proceedings. We shall, therefore, merely state what we under- stand to be the present contentions of the parties. The Guild's contention The Guild contends that the appropriate unit consists of all the employees, including regularly employed part-time employees and road-men supervisors, employed in the editorial, business and admin- istration,33 circulation, and advertising 34 departments of the sur- viving newspaper, the Herald-American, except : major executives transportation clerks building-maintenance employees circulation department division bill posters supervisors and division men mail-room clerks district managers return clerks at Sangamon Street truck drivers suburban and county mailers magazine-agency employees Canadian roadmen boy builders watchmen and guards Canadian point supervisors job-press employees employees under personal-serv- Sangamon Street employees ice contracts 35 color-plant employees temporary employees 36 manager and clerks in the Pollard-Alling Department It is not entirely clear from the record whether the Guild contends that space writers in the editorial department should be included in the unit. In general, the unit claimed to be appropriate by the Guild may be described as an industrial unit including almost all the a3 This includes the clerks and stenographers who work in the mechanical departments and in connection with the management of the Hearst Building 14 This includes the merchandising department. 85 Provided that they were under such contracts on September 11, 1939, and are still under such contracts at the time of any election ordered by the Board. 86 Temporary employees hired to do work in connection with entertainments , contests, and similar enterprises , to collect or tabulate election returns, and for similar transient and oEcasionanpurgoses. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical and semi-clerical, or so-called "white collar" employees, who are not bargained for by some craft organization. The Commercial Aissociates' contention While the record is not entirely clear, we believe that the following is a substantially correct statement of the position of the Commercial Associates with respect to the appropriate unit: all employees in the business and administration, circulation, and advertising depart- ments, with certain exceptions. In general, the Commercial As- sociates would exclude from the unit, in addition to editorial employees, those employees in the commercial departments excluded by the Guild, except district managers, whom the Commercial As- sociates would include.37 The Commercial Associates also contended that return clerks, whether working full time at the main plant or part time at the Sangamon Street plant, should all be either included in the unit of commercial-department employees or should all be bargained for by Chicago Mailers Union No. 2. The Guild, ap- parently by agreement with the Chicago Mailers Union No. 2, seeks to include in the general industrial unit the full-time return clerks in the main plant, whom the Mailers Union does not claim to repre- sent, and to exclude the Sangamon Street return clerks, since they were bargained for by the Mailers Union. It further appears that the Commercial Associates desires the inclusion of suburban roadmen in the unit. Its counsel stated on the record that the Guild desired them excluded, although this does not appear from the Guild's state- ment of its contention. The Editorial Association's contention The Editorial Association contends that the employees in the editorial department are a separate craft and should be in a separate unit. This unit would include all employees in the editorial depart- ment except major executives. The respondents' contention The respondent contends that there should be two units, one con- sisting generally of the employees in the editorial department, and one of the employees in the commercial departments. The respond- ents also contend that there should be excluded the confidential secre- taries of T. J. White, president of the Illinois Publishing and Print- 97 Counsel for the Commercial Associates , in stating its contention, stated that he would have to advise ' the Trial Examiner later about the exclusion of persons holding personal service contracts and magazine agency employees , that he was not sure. He did not subse- quently clarify the record on the point. AMERICAN NEWSPAPERS, INC. 941 ing Company; John Malloy, managing editor of the Herald-Ameri- can and vice president of the corporation; Earl Fulton, business manager of the Herald-American and secretary and treasurer of the corporation; H. A. Koehler, assistant to the president of the corpora- tion; W. J. Parker, circulation director of the Herald-American; and W. N. McNamee, advertising director of the Herald-American. General considerations We shall first consider generally whether one or two units are appropriate for the employees here involved. The respondents' operations correspond generally to those of other newspaper publica- tions which we have considered. In other representation cases which have arisen in the newspaper-publishing industry, the question of combining the editorial and commercial departments into one unit for the purposes of collective bargaining has been presented. In support of the broad unit we have pointed to the functional co- herence and interdependence of the editorial and commercial de- partments, considerations which are equally present here. Where no rival claimant has sought separate representation for commercial- department employees, and where there has been no substantial showing of opposition by the employees in the commercial depart- ment to inclusion within the broader unit, we have found a unit, substantially similar to that here proposed by the Guild, to be appropriate.38 On the other hand, where another labor organization has claimed to represent the commercial-department employees in a separate unit, we have concluded that the inclusion of commercial- department employees in the broad unit should depend upon the desires of the employees involved.3° As indicated above, the Guild in this case had exclusive bargain- ing contracts with the respondents from January 1938 to January 1939, covering employees in the editorial departments of the two papers then being published, and the Guild's efforts to bargain for the commercial-department employees were consistently unsuccessful. 38 Matter of Daily Mirror, Inc. and Newspaper Guild of New York, 5 N. L. R. B. 362; Matter of Seattle Post-Intelligencer Department of Hearst Publications, Inc and Seattle Newspaper Guild, Local No 82, 9 N L. R B. 1263; Matter of New York Evening Journal, Inc. and Newspaper Guild of New York, 10 N L. R. B. 197; Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, 13 N. L R B 974 ; Matter of New York Post, Inc., and Publishers Service, Inc and Newspaper Guild of New York, 14 N L R. B 1008; Matter of Globe Newspaper Company and Newspaper Guild of Boston, 15 N. L_ R. B. 953. 'Matter of Milwaukee Publishing Company and Milwaukee Newspaper Guild (CIO), 10 N. L. R. B. 389; cf. Matter of Boston Daily Record ( New England Newspaper Publishing Co.) and Newspaper Guild of Boston (American Newspaper Guild ), 8 N. L. R. B. 694. And see Matter of Indianapolis Times Publishing Company and The Indianapolis News- paper Guild, 8 N. L. R. B. 1256; Matter of News Syndicate Co., Inc. and Newspaper Guild of New York, 4 N. L. R. B. 1071. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We do not consider the subsequent contracts between the respondents and the Editorial Association and Commercial Associates as having much weight in the determination of the unit or units, since they were for members only and were executed during and expressly subject to these proceedings. In addition, in the case of the Com- mercial Associates, the contract was made with an employer-assisted organization. The history of collective bargaining in the newspaper industry for editorial- and commercial-department employees, as shown by the record, is inconclusive on the question before us. To grant the Guild's request for a single unit comprising both editorial- and commercial-department employees, would be to reject the contention of the Editorial Association for a separate unit of editorial-department employees, which unit has in the past been covered by Guild contracts in this plant. The Editorial Association, unlike the Commercial Associates, has not been the recipient of the respondents' illegal favoritism and support. Under these circum- stances, we think that application of the principles heretofore adopted by us in newspaper cases requires giving the editorial-de- partment employees the choice of constituting a separate unit or being combined with the commercial departments in a single unit. We find that the purposes of the Act can best be effectuated by allowing the employees in the editorial and commercial departments, with the exceptions set forth below, to determine for themselves whether they desire to be combined within a single unit or to con- stitute separate units. As set forth below, elections by secret ballot are necessary to determine the desires of the employees. We shall direct separate elections in the editorial and commercial departments, with the Guild appearing on each ballot, the Editorial Association on the ballot in the editorial department, and Commercial Associates on the ballot in the commercial departments.40 If a majority of the employees in each election choose the Guild, the editorial and com- mercial departments will be combined in a single unit; -if the Edi- torial Association and the Commercial Associates are selected, there will be separate units. There remain certain questions concerning exclusions from either the single unit or the two units, whichever shall be finally designated. The Guild, the Commercial Associates, and the Editorial Associa- tion agreed that the employees who occupied certain positions of authority and responsibility should be excluded from any unit. 4° As set forth below , we will hold up the elections pending a report by the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondents' unfair labor practices. AMERICAN NEWSPAPERS, INC. 943 These positions and their present occupants are listed below and we find that they or others who may occupy these positions in the future should be excluded from the unit or units by reason of their being executives 41 In addition, there are a number of employees whom the Guild contends should be excluded from the unit or units as execu- tives and whom the Editorial Association and the Commercial Asso- ciates would include in the unit or units. Nine of these employees 42 have authority to hire and discharge the employees working under their supervision and we find they should be excluded from the unit or units as executives. W. W. Brown, sports columnist, and W. N. Newman, solicitor and manager of the American Home Journal are in effect one-man depart- ments. Brown has no employees working under him and Newman has only his personal secretary. We find that they should be included in the unit or units. J. C. Fogarty is the assistant manager of the merchandising de- partment, where there are six men under the direction of the man- ager. Fogarty does not assign work to the men except when the manager is away. Although the record is not entirely clear, he does not appear to have sufficient supervisory authority to warrant his exclusion from the unit. We therefore find that he should be in- cluded in the unit or units. John Dienhart is one of the two assistant executive editors of the Herald-American. Assistant executive editors assist the managing editor. The other assistant executive editor, Shainmark, is excluded 41 J. J Karpf, editorial executive E Shainmark , assistant editorial execu- tive R. N. Williams , Sunday editor J. G. Robert, night editor E W Cochians, sports editor R P Vanderpoel, financial editor H. N Bundesen , health writer. H R Brink , advertising manager. W N McNamee, advertising director Wm Bloom, advertising service man- ager C. A. L. Moore, chief accountant. M. C. Meigs, publisher. H A. Koehler, assistant publisher. 42 Edstorial department: H F Reutlinger, city editor. E D Fulton, business manager. F, C Hudson, mechanical superintend- ent J J Riley, assistant superintendent W J Parker and C N. Guelzo, circula- tion directors J. J. Stoffels, city circulator. E J Parent, home delivery manager. D Maisure, suburban and country circu- lation manager R L Shless , classified advertising man- ager. C H Holmes, assistant classified adver- tising manager Patricia Dougherty, women's page editor Paul Cupan, chief reference room clerk. J J Shenoha, art manager. S. Mautner, manager of photographic department. Brenton, manager of photographic department. Commercial departments: E. J. Meyer, purchasing agent. Mary McLane, chief telephone operator Nathan,Klaskin, manager of dispatch department 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the unit by agreement. Dienhart will be excluded from the unit or units. The other employees whom the Guild would exclude from and the Commercial associates would include in the unit or units are super- visory employees in the commercial departments who do not' have authority to hire and discharge but have power to direct the work of others, assign work to them, and see that they do the work 43 Where, as here, there is intense rivalry between the labor organizations claiming to represent the employees, and particularly when there is evidence that the employer has favored and assisted one of the organizations, it is important that employees identified with the management be excluded from the unit or units in order that the employer's position of neutrality between the two may not be impaired. We shall there- fore follow our usual practice and exclude these supervisory em- ployees, or other employees who may in the future occupy these positions, from the unit or units 44 In addition to those employees whom the Guild desires to exclude, there are three roadmen supervisors '45 whom the Guild would include and concerning whom the other parties make no contention, who have some degree of supervisory authority over country roadmen. While they had no authority to hire or discharge or to make recommenda- tions concerning the hire and discharge of the employees under their supervision, they reported on the work of the roadmen to the country circulation manager. They also transmitted orders to the roadmen from the circulation manager and the country circulation manager and criticized their work when necessary. Their authority over em- ployees is generally comparable to that of some of the employees, such as Daisy Reed, whom the Guild would exclude. We find that the roadmen supervisors are supervisory employees who should be 43 These employees are : Adolph Drey, local advertising manager. J. W Cardall, office manager , circulation department. A A. Black, assistant to country and suburban circulation manager. Daisy Reed , supervisor of telephone solicitors , classified advertising. Klein, head of rental and real estate section, classified advertising. R B. Coply, head of automobile section , classified advertising. Leo Hardy, head of general staff, classified advertising. O. E. Shenk, amusement manager. Other employees who in the future may hold the above positions are excluded by the Guild. Shenk was originally upon the list of executives agreed to be excluded . Commercial Associates withdrew from the stipulation as to him . It is not clear whether or not he has the power to hire and discharge but it is clear that he is a supervisory employee with approximately the same authority as others In the list. He is therefore excluded from the unit or units. P. A. Plaschke, cartoonist , whom the Guild listed as an employee to be excluded is under a personal-service contract and is excluded by reason of this fact. See Matter of The Connor Lumber f Land Co and International Woodworkers of America, Local No. 125 (C. I. 0.), 11 N. L. R. B. 776, and cases cited therein. 15 Also known as State circulation managers. AMERICAN NEWSPAPERS, INC. 945 excluded from the unit or units, under the circumstances here presented. Building maintenance employees Building maintenance employees include janitors, stationary engi- neers, scrubwomen, elevatormen, electricians, machinists, carpenters, plumbers, window washers, and steam fitters. The work of such employees is obviously considerably different from those included in the units urged since they are not clerical or semi-clerical em- ployees. Both the Guild and Commercial Associates desire their exclusion. We shall exclude them from the unit or units. Employees who are members of and bargained for by various craft unions Bill posters, mail-room clerks, suburban and county mailers, job- press employees, manager and clerks in the Pollard-Alling depart- ment, transportation clerks, circulation-department division super- visors and division men, and truck drivers are members of and are bargained for by various craft unions. Both the Guild and Com- mercial Associates desire their exclusion. We shall exclude them from the unit or units. Return clerks at Sangamon Street and other Sangamon Street employees Commercial Associates contends that the return clerks who work at the Sangamon Street plant should either be included in the general unit of the employees of the commercial departments, as are the return clerks in the main plant, or all return clerks should be bar- gained for by the Chicago Mailers Union No. 2. While the exclusion by the Guild of the Sangamon Street return clerks appears to be the result of an agreement between the Guild and the Mailers Union, this is not the only basis for their exclusion. It is noted that all employees at Sangamon Street are sought to be excluded by the Guild from the unit, and the Commercial Associates makes no objec- tion to the exclusion of any except the return clerks. Since the parties-agree that employees other than return clerks at Sangamon Street should be excluded, and since Chicago Mailers Union No. 2, which has the primary interest in the return clerks, ,has made no objection to the division sought by the Guild in this respect, we will exclude all employees at Sangamon Street from the unit or units. Canadian and country roadmen These employees are in the circulation department and their function is generally to increase and maintain circulation out- 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lets in Canada and outside of Chicago, as their titles indicate. )They very seldom go to the plant or have any contact with fellow em- ployees, and do not appear to have problems in common with them. We shall exclude them from the unit or units. Such exclusion does not extend to suburban roadmen who have much more frequent contact at the plant with their fellow employees and who are included in the unit or units. Watchmen and guards, color-plant employees, boy builders, Canadian point supervisors, and temporary employees The parties are agreed that these employees should be excluded from the unit or units. We see no reason to reject the wishes of the parties in this regard. We find that watchmen and guards, color- plant employees, boy builders, Canadian point supervisors, and tem- porary employees should be excluded from the unit or units. Magazine agency employees As stated above, the Commercial Associates did not clarify its con- tention with respect to these employees. The Guild would exclude them. The record does not disclose the nature of their duties except as indicated by their titles. In this state of the record, since one labor organization desires their exclusion, we shall exclude them from the unit or units. Employees under personal-service contracts These employees are few in number and since their tenure and con- ditions of employment are fixed by existing contract, we shall exclude them from the unit or units. District managers The status of these circulation-department employees gives rise to the most important point of difference between the Guild and the Commercial Associates, the former desiring to exclude them and the latter desiring to include them. The basis of the Guild's contention is, apparently, that they are supervisory employees. While there is some contradiction in the evidence, it does not appear that they have authority to hire or discharge the branch managers who work under them. However, it does appear that they give orders to the branch managers, supervise their work, and are the immediate superiors of the branch managers. We are therefore of the opinion that under the circumstances of this case, the considerations set forth above with re- AMERICAN NEWSPAPERS, INC. 947 spect to other supervisory employees are equally applicable to district managers and we shall exclude them from the unit or units.46 Space writers - While neither labor organization made specific reference to space writers, we shall exclude them from the unit or units. They do their work in various cities near Chicago and are paid for what they write. Some are guaranteed a small monthly minimum payment ranging from $5 to $15 a month. They seldom go to the plant and would ap- pear to have little in common with the other employees. Con ful ' ential secretaries The respondents urge that the confidential secretaries of certain officials and executives be excluded from whatever unit may be found appropriate on the ground that these officials deal with the respond- ents' confidential business and conduct negotiations with various labor organizations. White, Malloy, Meigs, Fulton, and Koehler are offi- cials of the Illinois Publishing and Printing Company. Parker and McNamee are not. Parker, however, is a member of the committee which negotiates with the Teamsters Union and the Commercial As- sociates. McNamee attends meetings with the other officers of the corporation involving financial matters, advertising campaigns, and labor matters. All these officials, who are the corporation officers and the top officials of the various departments into which the plant is divided, dictate to their secretaries concerning important corporate affairs including labor relations. We take notice of the fact that in negotiating and in other dealings concerning grievances, the interests of the labor organizations and the management may be adverse. We shall therefore, exclude the confidential secretary of each of the above officials from the unit or units.44 IX. THE DETERMINATION OF REPRESENTATIVES The Guild, the Editorial Association, and the Commercial Asso- ciates all claim to represent a majority of the employees in the unit claimed- by them to be appropriate. No membership cards were submitted at the hearing. Under all the circumstances, the question concerning representation which has arisen can best be resolved by elections by secret ballot. Since the respondents have, by engaging in various unfair labor practices, interfered with the exercise by their employees of the rights guaranteed them by the Act, we shall not '8 See Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, supra 47 See Matter of Brooklyn Daily Eagle and Newspaper Guild of New York, supra. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD now set the date for the elections. We shall hold the elections, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaf- fected by the respondents' unlawful acts. There remains the question as to which employees shall be eligible to vote in the elections. The question is complicated in this case by the fact that the consolidation of the papers, which took place on August 26, 1939, while a number of the employees were on strike, resulted in it contraction in the number of jobs available and the discharge of a large number of employees. While it appears that most of the employees discharged were attached to the Herald- Examiner, not all the employees of the Herald-Examiner were dis- charged, and some employees of the American were discharged. It is impossible to determine which of the striking employees would have appeared upon the pay roll of the combined paper, the Herald- American, had they not been out on strike, except as to the branch managers formerly employed by the Herald-Examiner. The latter clearly would not have been employed as of the date of the consolida- tion, since their jobs were abolished and the work formerly done by them was turned over completely to another corporation in January 1939. Accordingly, the Herald-Examiner branch managers are not entitled to vote in the elections.48 As to the rest of the strikers, they remain employees under the terms of the Act, since the record shows, and we find, that the strike is a current labor dispute, and since it is impossible to determine which of them would have lost their jobs upon the consolidation if they were at work at that time. Under these circumstances we shall permit all the strikers, except the Herald-Examiner branch managers, to vote.49 Those employees hired after December 5, 1938, to take the place of strikers, will not be eligible to vote, under our usual practice in such cases.50 Except for these replacements, all employees in the appropriate unit or units whose names appear on 19 These branch managers are : W. W. Albin Louis Ferraganeo A. H. Fischer E. W. Graviss S T. Sandell A B. Fisher L. D Kallin W F. Wilson J. J. Sohn J. J. Roman P. G. Anderson W. R. Vaugh N. E. Scott Norman Weiner C. E. Elliot Sol Warmser N. A Belilees W. B. Robbins J. J. Chinn R. F. Berg E A Brender C. L. Traugott A. C. Daniel Albert Du Caine M. W. Weaver Samuel Dykstra LeRoy Marconi H. F Barritt Abe Goldfarb J. C. Pierce H. M. Butz W McNichall D. C. Evans L. S Veenstra 99 The list of persons who went out on strike on December 5, 1938, and who are eligible to vote, is attached hereto as Appendix A. Matter of A. Sartorius & Co., Inc. and United Mine Workers of America , 10 N. L. R. B. 493. AMERICAN NEWSPAPERS, INC. 949 the pay roll immediately preceding our subsequent Direction setting the date for, the election, will be eligible to vote. 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. Chicago Newspaper Guild, Local No. 71 of the American News- paper Guild, Chicago Editorial Association, Local No. 21690, and Newspaper Commercial Association, Local No. 21662, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondents, by interfering with, restraining, and coercing their employees in the exercise of their rights guaranteed in Section 7 of the Act, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The respondent, Evening American Publishing Company, by discriminating with regard to the hire and tenure of employment of Harold Sullivan and Howard Mayhew and thereby discouraging membership in Chicago Newspaper Guild, Local No. 71 of the Ameri- can Newspaper Guild, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) 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. 5. The strike of certain of the respondents' employees, which began on December 5, 1938, is a current labor dispute, within the meaning of Section 2 (3) and (9) of the Act. 6. The respondent, Illinois Publishing and Printing Company, has not engaged in unfair labor practices within the meaning of Section 8 (3) and (4) of the Act by discharging Harry Read. 7. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondents, within the meaning of Section 9 (c) and 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 respondents, American Newspapers Inc., Illinois Publishing and Printing Company, and Evening American Publishing Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interfering with the activities of Chicago Newspaper Guild, Local 71 of the American Newspaper Guild, by discouraging their 283033-41-vol. 22-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees from attending meetings of the Guild, by paying delin- quent dues of Guild members to render them eligible to vote on Guild matters, or. by seeking to ascertain the names of Guild members or the action :taken at Guild meetings, through the use of spies or. otherwise ; (b) Discouraging membership in Chicago Newspaper Guild, Local No. 71 of the American Newspaper Guild, or any other labor organiza- tion of their employees, by discharging or in any other manner discriminating in. regard to their hire and tenure of employment or any term or condition of their employment because of membership in or activity in connection with any such labor organization; (c) Encouraging membership in and activities in behalf of the Newspaper Commercial Associates, or any other labor organization; (d) Recognizing or in any manner dealing with the Newspaper Commercial Associates as representative of any of their employees for the purpose of dealing with the respondents concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless similar recognition is granted to Chicago Newspaper Guild, Local No. 71 of the American Newspaper Guild, or unless and until said Commercial Associates is certified by the Board as exclusive representative of their employees in an appropriate unit; (e) In any other manner interfering with, restraining, or coercing their 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 con- certed activities for the purposes of collective bargaining and other mutual aid and 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) Withhold recognition from the Newspaper Commercial Asso- ciates as exclusive representative of their employees in an appropriate unit, unless and until such labor organization is certified by the Board as such exclusive representative; (b) Unless and until said Newspaper Commercial Associates is certified by the Board as such exclusive representative, withhold recognition from said Newspaper Commercial Associates as repre- sentative of any of their employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless similar recognition is granted to Chicago Newspaper Guild, Local No. 71 of the American Newspaper Guild; (c) Upon application, offer to Howard Mayhew and Harold Sul- livan, full reinstatement to their former or substantially equivalent AMERICAN NEWSPAPERS, INC . 951• positions without prejudice to their seniority or other rights and privileges ; (d) Make whole Howard Mayhew and Harold Sullivan for any loss of pay they have suffered by reason of their respective dis- charges, by payment to Mayhew of a sum equal to that which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement made to him following the issuance of the Intermediate Report, and from the date of any refusal by the respondents to reinstate him upon application after the issu- ance of this Order to the date of reinstatement; and by payment to Sullivan of a sum equal to that which he would normally have earned as wages from the date of his discharge to the date of the Inter- mediate Report, and from the date of any refusal to reinstate him upon application after the issuance of this Order to the date of reinstatement; less, in each case, net earnings during such periods and less the discharge indemnity paid to them by the respondents at the time of their discharge; deducting, further, from the amount otherwise due to each of them, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (e) Post immediately in conspicuous places in their plant and maintain for a period of at least sixty (60) consecutive days, notices to their employees stating that the respondents will cease and desist as provided in Section 1 (a), (b), (c), (d), and (e) of this Order, and that the respondents will take the affirmative action described in Section 2 (a), (b), (c), and (d) of this Order; and further stating that the respondents' employees are free to become or remain mem- bers of Chicago Newspaper Guild, Local No. 71 of the American News- paper Guild, and that the respondents will not discriminate against any employee because of membership or activity in that organization; (f) If the strike of the Chicago Newspaper Guild, Local No. 71 of the American Newspaper Guild, is still in progress, furnish four (4) copies of the above notice to the said Chicago Newspaper Guild, for posting by the Guild in places accessible to the strikers; (g) Notify the Regional Director for the Thirteenth Region in writing-within ten (10) days from the date of this Order what steps, the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that'the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent, Illinois Pub- lishing and Printing Company, :discharged Harry Read by reason 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his membership in and activities in behalf of the Chicago News- paper Guild and because of his testimony in a hearing before a Trial Examiner designated by the Board; and in so far as it alleges that the respondents suggested, advised, urged, and warned their em- ployees to become members of the Chicago Editorial Association. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as a part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bar- gaining with the respondents, American Newspapers Inc., Evening American Publishing Company, and Illinois Publishing and Print- ing Company, Chicago, Illinois, elections by secret ballot shall be conducted, at such time as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Thir- teenth Region, acting in this matter as agent for the Board, and sub- ject to Article III, Section 9, of said Rules and Regulations, within the groups described below who are on the pay roll immediately preceding the date of the Board's Direction setting the date for the election, excluding employees employed after December 5, 1938, to take the place of strikers, including the strikers appearing in Appendix A hereof, and including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have at the time of the elections been temporarily laid off, but excluding those who have at the time of the elections quit or been discharged for cause: (a) Employees in the editorial department, excluding space writers, executives and supervisory employees as defined above, John Dienhart, employees under personal-service contracts, and the per- sonal secretaries of corporate officials White, Meigs, Koehler, and Malloy, to determine whether they desire to be represented for pur- poses of collective bargaining by Chicago Newspaper Guild, Chicago Editorial Association, or by neither; (b) Employees in the commercial departments, excluding execu- tives and supervisory employees as defined above, roadmen supervisors Hunt, Jardine, and Karper, building-maintenance employees, em- ployees who are members of and are bargained for by craft unions, all Sangamon Street employees, Canadian and country roadmen, AMERICAN NEWSPAPERS, INC. 953 watchmen, guards, color-plant employees, boy builders, Canadian point supervisors, temporary employees, magazine agency employees, employees under personal-service contracts, district managers, and the confidential secretaries of Business Manager Fulton, Circulation Di- rector Parker, and Advertising Director McNamee, to determine whether they desire to be represented for-purposes of collective bar- gaining by Chicago Newspaper Guild, Newspaper Commercial Asso- ciates or by neither. APPENDIX A LIST OF STRIKERS EDITORIAL DIVISION EMPLOYEES, D. B. Nelson R: S. Terrell R. A. Vingi Martin Welden Joseph Basco R. D. Bradley W. A. Davies A. C. Hainke D. A. Hay Don Chilcote C. A. Biorn Paul Caster A. W. Czech H. M. Knight B. C. Kopriva J. B. Korn Fred Lee W. L. MacArthur R. A. Schultz R. B. Sharp Emil Zlatos J. J. Adams W. A. Knefel J. G. Neve F. T. Hollingsworth Burke Meade ELIGIBLE TO VOTE 1 Herald-Examiner and American : Anthony Beradi V. M. Knitter William Sturm Otto J. Judt J. L. Zajicek J. P. Bara G. C. Spencer Tom Wilhelm Robert Greenock H. H. Hartung Hazel MacDonald W. J. Maslowe Maribelle Samen A. R. Smith W. H. Stromberg Esther Shultz O. D. Burge H. D. Wohl Harry Hertz M. E. H. Pyle Milton Woodard D. L. Sparr R. H. Kipp W. G. Margolis Harry Kanehl E. H. Partridge IL. K. Fink and Quayle Mumford are not included since they are either temporary employees or space writers , both of which are excluded from the unit or units. J. J. Has- sett is not included because his pay-roll status does not appear in the record. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A-2 E. M. J. Randoef J. E. Wolfsohn Bernard Fegart E. J. Auld Ralph Frost Clyde Hodges David Mann J. B. Quinn A. P. Risser E. J. Tanker Katherine Franklin W. R. Franklin J. J. McPhaul G. M. Sessions T. P. Mescall J. G. Morris R. T. Sanford Kirk Earnshaw C. H. Frady E. W. Lysen Nathan Aleskovsky W. C. Forman H. F. Rissler Henry Simmons R. J. Stack J. A. Moeper L. M. Johnson F. T. Dowling J. J. Ingrassia G. H. James Evans Jones P. J. Moceri D. M. O'Niel Jack Sapoznik J. C. Kordick Nazareth D'Agostino J. J. Morris Geo. Staube W. H. Becker Leo Fried Martin Resser H. J. Wineberg R. A. McGrath D. H. Keniston R. A. Lennon C. B. Carey APPENDIX A-3 COMMERCIAL DEPARTMENT EMPLOYEES, Herald-Examiner and American:' , Rose E. Boghasen Alice Leoni C. T. Frecker M. V. Fusello T. E. Geniesse G. T. Shaw T. D. Smith Lester Tholl George Erickson H. S. Peel E. J. Coughlin R. L. Marchfield Alex Meisinger Jerry Allegretti Wm. Axelson Albert Feltman Emanuel Price J. J. Stein Ben Feldman H. C. Gottfried K. E. Hartman S. A. Raia Guido Alfonsi Cornelius Galvin i R. K. Hunt, W. H. Jardine, and H. A. Karpen are not included since they are excluded from the unit as supervisory employees. AMERICAN NEWSPAPERS, INC. 955 Frank Meneghine J. A. Quinn S. M. Waxman H. J. Eisner H. A. Harmon C. R. Miehle Marcel Davidson Lucille Jennings E. W. Wendland H. McGinnis G. F. Heine G. A. Suess W. S. Markiewicz P. J. Benedetti E. E. DeLaby L. V Gottrich F. P. Krezel C. L. Lavezzi G. B. Meyers Leo Wingert I. N. DeYong D. E. Day O. A. Stark J. T. Van Huele B. S. Goldman APPENDIX A-4 G. C. Gunderson D. F. Gustafson V. H. Johnson M. E. Milewski Philip Orloff F. C. Rotecki Ann Tonchick Grace L. Boos Ida S. Fishman Dorothy Lambert Edna M. Steen Wilma E. Wehe J. W. Lynn J. E. McCabe Henry Vandermolen H. J. Coedesman Joseph Cooke Harry Garduk E. E. Clarke B. A. Sanders Jack Romanoff B. D. Hartnett R. E. Johnstone J. E. Schact E. M. Silverton Howard Mayhew 2 Harold Sullivan 2 MR. WILLIAM M. LEISERSON.took no part in the consideration of the above Decision, Order, and Direction of Elections. " Howard Mayhew and Harold Sullivan are included among those eligible to vote since we have ordered their reinstatement herein.