Westchester Newspapers, Inc.

In the Matter Of WESTCHESTER NEWSPAPERS, INC. WESTCHESTER COUNTY PUBLISHERS, INC. and WESTCHESTER NEWSPAPER GUILD, CHARTERED BY AMERICAN NEWSPAPER GUILD, C. I. O. In the -Matter of HERALD STATESMAN, INC. WESTCHESTER COUNTY PUBLISHERS, INC. and WESTCHESTER NEWSPAPER GUILD, CHAR- TERED BY AMERICAN NEWSPAPER GUILD, C. I. O. Cases Nos. C-1542 and C-1548.-Decided August 15, 1940 Jurisdiction : newspaper publishing industry. Unfair Labor Practices. Interference, Restraint, and Coercion. Charges of, dismissed. Discrimination: discharge, charges of, dismissed. Collective Bargaining: charges of refusal to bargain collectively, dismissed. Issuance by the respondent of a notice changing the basis of pay, occa- sioned by the Wages and Hours Law, without consultation with the Union, during a period when the Union had suspended negotiations, was found not to constitute a refusal to bargain in good faith in view of the suspension of negotiations by the Union, the subsequent embodiment by the respondent of the provisions of the notice in its counterproposals, and the absence of evidence indicating that the respondent by this action sought to undermine the Union. Where during a conference between union negotiators and the respondent the union negotiators acting under the assumption that matters discussed at a prior conference had been finally agreed upon, read to the respondent the terms of a new contract not previously seen by him, and including matters not specifically agreed to by him at the prior conference, a state- ment by the respondent at the termination of the conference concerning said contract "just because I have not dsiscussed some points as you have read them that does not mean that I agree with them" was held not made in bad faith. Practice and Procedure : complaint dismissed. Mr. Daniel Baker, for the Board. Mr. Elisha Hanson, of Washington, D. C., for the respondents. Isserman, Isserman, cf^ Kapelsohn, by Mr. Sol D. Kapelsohn, of Newark, N. J., for the Union. Miss Mary Metlay, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Westchester Newspaper Guild, chartered by American Newspaper Guild, affiliated 26 N. L. R. B., No. 65. 630 WESTCHESTER NEWSPAPERS, INC . 631 with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaints and amended complaints dated June 21, 1939, and Novem- ber 1, 1939, against Westchester Newspapers, Inc., Herald Statesman, Inc., and Westchester County Publishers, Inc., herein called the respondents, alleging that the respondents, Westchester Newspapers, Inc., and Westchester County Publishers, Inc., had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein. called the Act, and that the respondents, Herald Statesman, Inc., and West- chester -County Publishers, Inc., had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. Copies of the complaints and amended complaints, together with notice of hearing thereon were duly served upon the respondents and the Union. On June 24, 1939, the Board, acting pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations- Series 1, as amended, issued an order consolidating the cases. In respect to the unfair labor practices the complaints alleged in substance (1) that the respondents since March 1938, and at all times thereafter, refused to bargain collectively with the Union, the duly designated representative of all the editorial employees, exclusive of executives, of the New Rochelle Standard Star, 'the Mt. Vernon Daily Argus, and the Yonkers Herald Statesman; (2) that since July 1937 and at all times thereafter the respondents urged, persuaded, and warned the editorial employees of said Standard Star, Daily Argus, and Herald Statesman to refrain from engaging in concerted activities for the purposes of collective bargaining, and otherwise interfered with, restrained, and coerced them in the exercise of the rights guaranteed in Section 7 of the Act; and (3) that the respondents, Westchester Newspapers, Inc., and Westchester County Publishers, Inc., on Decem- ber 31, 1938, discharged George Rance, an employee, from the circu- lation department of the Standard Star because of his union member- ship and activities. On July -7, 1939, the respondents filed answers to the original complaints, which by stipulation, filed November 16, 1939, stand as answers to the amended complaints, denying that they had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at New York City, from November 27 to December 5, and from December 18 to 22, 1939, in- clusive, before Josef Hektoen, the Trial Examiner duly designated by the Board. The Board, the respondents, and the Union were repre- sented by counsel; all participated in the hearing. Full 'opportunity to be heard, to examine and cross-examine witnesses, and to introduce 632 DECISIONS` OF NATIONAL LABOR', RELATIONS BOARD evidence bearing on, the issues was - afforded ,all parties .. - During the course • of alie "hearing -,the, 'respondeiits •'moved to , dismiss" the' pro- -deedings because of alleged' violations of^the due process; 61hAse -of the -Fifth' Ainend'meut to the Constitution . This 'motion was denied by the, Trial Examiner.'-,At the close, of the Board'scase ,.th'e rdspondeiits movedito dismiss for failure of 'proof. The Trial , Exam' ine^,, reserved .his ruling on.this motioh•aild - granted it in his Interihediate:Report. ;At-the' close of•theEearing the Board moved to conform -the complaints 'to^the proof• with respect to formal 'matte'rs. -:The motion was granted by the Trial Examiner.' During the course of thehearingl the .Trial 'Examiner-made other ruling's on- motions •and• on objections to the -admission of, evidence. • The iBoar'd has, reviewed the'riilings of the Trial Examiner and finds that no •prejudicial'errors were committed. The rulings ai•e hereby affirmed.," . - ' • • •' •' Oi Jariuhry;6', 1,944, the respofdents ,filed a,.brief in, support of their' ,motions to 1 dismiss _the . complaints . ' •• Thereafter , •, on April' 13, 1940, the Trial' Examinei • issued his :Intermediate ; Report; copies of which were ' duly. served =upon 'the -respondents and The Union. The Trial Examiner fdund'that ' tlie operations,,ofIthe respondents are an inte- grated enterprise 'and occur in commerce within the meaning of, Sec- tion 2 '(6) and'(7)^ of the;Act.' The Trial 'Examiner,further•found that -the' respondents 'have, hot -engaged in and, are not engaging -in unfair lalior '•practices within 'the meaning of Section 8 (1),.(3)',. and' (5) of•.the Act and 'recommended that ; the complaints be dismissed. Exceptions to the Intermediate' Report were filed by th0 respondents on May 7, 1940,-.and by'the' Union on May 18, 1940.'' ' On -July '2 -,,1940, pursuantAo. notice a hearing, for the purpose -of oral argument was held before :the Board in•Washington , D: C. , The- respondeiits" 'and the Union 'were^represehted by counsel and partici- pated-in- the: argument .;- • 'At 'the' hearing counsel for the 'Union aiioved 'to.arnend the exceptions filed by the Union 'by - substituting in"para-- graph' nuriiber :23''"section :81(1)" 1 instead of "section 9 (1);", and•by 'striking out r^fereiic to racial. comments made•in-,that-paragraph. The' motion- ' •is -hereby granted. ' , The Board • has 'considered ' the respondents ' .brief and the exceptions filed by the respondents and -the, Union Ito -the , Intermediate Report and 'in so far, as the :exceptiohs are 1 inconsistent , with 'the finding's, 'conclusions', and 'order set forth elow .finds'them to ' be ^vitbou't'merit.' ' Upon the entire record inithe, case,, the Board makes the-following: FINDINGS OF FACT ' I. ' THE BUSINESS OF 'THE I RESPONDENTS Westchester ester County Publishers , Inc , is a New York corporation having it principal " office and place of. business in Yonkers, New York,' and is the'parent corporation of a group of eight daily and five "`;ir , •WESTCHESTER"NEWSPAPERS, :INC:%' „•" ,.''; 633; weekly newspapers all published 'iri .Westchester County,; New YorkJ It 'directly publishes -three daily papers, 1116 Evening Dispatch;: White` Plains; the Citizens Register, Ossining,;'and the Daily News,-Tarry= town:'' It, owns ,and, controls Herald, 'Statesman; Inc.;'. a, New -York do'rporatioh, which 'publishes'lthe'Herald Statesman;: a daily and: one, of, three' herein ' involved; 'Harrison Publishing Corp:, rwhich; publishes, the' Citizens Observer,'Ha'rrison,' a weekly; and Item Publishers; .Inc.,, which publishes the .Daily. Item, Port Chester, a daily,: r Westchester. County ;Publishers; Inc.,' also owns and controls Westchester News- paper-Securities' Corporation; which in turn owns-and controls West-: chesterrNewspapers, Inc.,, a New York corporation' which,, publishes the Standard Star, New:Rochelle; and the Daily.Argus,, Mount Vernon; both daily, papers and ,the two.' remaining' herein involved. -; West; chester Newspaper' Secu'rities' Corporation' also '.oivns , and controls North Westchester Publishers, . Inc which 'publishes : three weekly paper's: the Tribune; New 'Qastle'; the 'North Westchester,•,Times;,Mt. Kisco;'and 'the 'Pleasantville Journal;l Pleasantville; andr•.Mamoroneck- Larchmont Publishing Co.,'which publishes the-Times, . Larchmont; i a' weekly, and the Daily Times; Mamoroneck,, a daily.,,!! - I •- Jr Noel -Macy, !president and director,of, .the respondents, i owns 10;750 of f2,000 outstanding shares of common, stock of ' Westchester County 'Publishers, "Inc. ' Of, 28,850 outstanding shar'es' of preferred- stock',2'J. Noel Macy'owns '2,975;'Valentine,E. Macy; 'Jr."I,his.brother,' 2,725; Edytha M. Michels, his sister, 1;950:;,the E. R.,'Trust, 3,100; the J. R. Trust, 2,325; and the -Hudson,, Company;' '13,450.;-.•,The Hudson' Company. is, it r holding company ' of which J:. Noel Macy, is vice' president and --in, which he has d direct stock interest; of) 1,242 shares and an indirect "interest of 1,7'801shares of a' total 9;219•iout- staiiding. ' He has contingent interests in the,E. R'. iand',V: R:Trusts and is life beneficiary of 'the J. R-: Trust." 1 ,Westchester- County; Pub- lishers; Inc.,,is indebted to J..Noel'Maly-in:the, amduiit"of $760,000 on'aR'open,account. " ' • ' • • r ,': ', o,;, ',-i... , 1, J. 'Noel Macy, and his"brother, Valentine' E.: Macy,l•Jr•.', own, undi- vided,,half interests -in• the:capital stock'of Westchestei'.Broadcastmg' Corporation;, which owns and. ioperates' radio .sta'tion i-WFAS; 'White Plains, 'New York. J t is under the supervision of J. Noel, 'Macy and 1 ne'is president and director of. - Westchester County •Publisliers, Inc ,!' W t h t N S t C es er ewspaper ecuri c es ies orp W h N In t te p e ews es c es r ap rs, c. Herald Statesman, Inc.' • t i' i i Harrison Publishing Co. Item Publishers, Inc 'f 1 He is-vice president'and director of i I • j i , i , 1 North Westchester Publishers, Inc 7 ., , ' - „ t ti r si r ii; :, ::I. lI •I, 1, , ^;. "Mamaroneck-Larchmont tPublishing Co , Inc 2 The preferred stock now has control by provision of the by-laws of the corporation , no di,,'idenc's having . been paid on such stock for a required length of time , . . . ,r .i i 634 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD broadcasts on a frequency of 1,210 kilocycles. All employees of Westchester County Publishers, Inc., and its subsidiaries and publica- tions are available to supply news for broadcast from said station. Westchester County Publishers, Inc., maintains a printer circuit and a county news bureau at White. Plains for the benefit of the eight dailies. The bureau is operated by an editor and two perforator operators employed by the corporation. Local news is circulated over the circuit from and to the papers and business and editorial communications, are likewise sent over it. News from the papers to the Associated Press in New York City is sent over the White Plains wire or may be telephoned by individual papers. The papers pay for the maintenance of the • bureau by Westchester County Publishers, Inc., by means of a proportionate charge based on their circulations: they are not paid by it for news furnished by them. The bureau furnishes news for broadcast,to station WFAS. The papers have identical real estate pages, radio columns, "advice" columns and other material which is matted for their use at Yonkers. The mechanical processes, including the printing of some of the dailies, are performed for them by the other dailies. William L. Fanning, treasurer and director of all the corporations, is business manager of the group and is employed by Westchester County Publishers, Inc. That corporation maintains a circulation bureau for all the papers at Mount Vernon to which each contributes its proportionate share of expense. It also does bookkeeping for all the papers except the Times on the same basis. The letterhead of Westchester County Publishers, Inc., lists the eight dailies and five weeklies hereinabove discussed. Macy, in con- nection with an application filed before the Federal Communications Commission for the transfer of station WFAS to him and his brother, stated under oath that all, the papers herein discussed 3 were published and controlled through subsidiaries of Westchester County Publishers, Inc. Advertisements in Editor and Publisher, trade paper of the newspaper business, by "Westchester-Macy Newspapers" were re- ceived in evidence. The Evening Dispatch carries the device "A Macy Westchester Newspaper" on its masthead. A promotion sheet, the Westchester Beverage News, published by Westchester County Publishers, Inc., carries an advertisement showing "consistent adver- tisers in the Macy-Westchester Newspapers." The Editor and Pub- lisher Year Books for 1938 and 1939 list Westchester County Pub- lishers, Inc., and the papers herein referred to under the category, "Principal Newspaper Chains of United States and Canada." The 1939 Year Book under "Editor and Publisher Promotion Awards of 1937" carries this item: "The best all-round promotion done by a 3 Including the Evening Dispatch , White Plains, which began publication March 1, 1939 , and has there- after been in the game ca'egory WESTCHESTER NEWSPAPERS, INC. 635 group of papers under common ownership was the Westchester County Newspapers' campaign in trade journals . . ." Editor and Publisher refers to the papers as "Westchester County Macy Group" in giving certain lineage statistics for the leading cities. The first edition of the Evening Dispatch, March 1, 1939, carried a news article about itself and the group, referring to "local Macy Westchester paper," stating that "for the present, the paper is being printed in the plant of the group's New Rochelle paper, the Standard Star," and that the paper "increases the number' of Macy Westchester dailies to eight.'' The assistant general manager of the Associated Press testified that the papers were referred to as the Westchester-Macy or Macy-Westchester group. Macy customarily hires the editors and business managers of all the papers and his decisions are final. Budgets are fixed in consultation with him and not substantially deviated from without further consul- tation with him. He negotiates labor contracts for the plants pub- lishing dailies. Transfers of employees from one paper to another are common and are made by him. When the Evening Dispatch began publication he appointed the editor, advertising manager, and circulation manager thereof, transferring them from other papers in the group. Employees work for and are hired by the group rather than individual papers.4 Westchester County Publishers, Inc., acting as a group purchasing agent for the eight dailies, annually buys approximately 5,000 tons of newsprint with a value of between $240,000 and $250,000. All newsprint comes from outside the State of New York. Ink valued at $3,000 to $4,000 is annually shipped from within and without the State of New York under the same arrangement. All publications circulate solely within the State of New York with the exception of the Daily Item, Port Chester, which has a circulation of about 1,400 without the State of New York out of total circulation of 7,000. This paper maintains' a correspondent in Connecticut who gathers news for it and the other publications in the group. , Item Publishers, Inc., also owns and operates an engraving plant which in October 1939 had a total income of $4,815.93, about 12j2 per cent of which was received from sales without the State of New York. The combined circulation of the dailies is approximately 70,000. Each of the eight dailies is a member of the Associated Press. There are no other Associated Press members in Westchester County. The service of the Associated Press, amounting to about 42,000 words a day, comes from its New York City office. Of this news, about 90 4 On June 8, 1939, Macy wrote the Union, ".. I do not think that I have ever had an application to work on any one newspaper, ... so far as I know in all the transfers which have been made in this organza. tion involving many men over a period of several years it has always been considered continuous employ- ment as regards vacations and everything else " 1636 DECISIONS-'OF NATIONAL LABOR RELATIONS BOARD per,cent'originates outside the State of New York. About. 10,, per cent''of"the i news,'in the, dailies is ;Associated Press matter: -The •amount1 of 1 news from thet:ptipers, used -by the Associated .Press is small, the best estimate being, an average, ,of 500 words a week., T, -, , i 3''Each', of, the papers publishes' various cartoon strips, news -features 'and other syndicated material obtained from sources both within, and without 'the State of .New -York. , • , , , ' , , , _ , %, Genertil, advertising 5,:received .'from' advertising.' agencies „both within and, without Ahe ,State of New. York ,is, handled- for the group und'er'contract' with 'Westchester, County Publishers, Inc.,,by.Kelly;- Smith ,Co.,- Inc.; advertising representativesr,in, ,New York ',City. Kelly-Smith Co., Inc., has offices in large cities over the country and "sells": the papers 'singly- or in:combil atiohs of two.or•more.. Lineage figures, indicate that-about 5' ^ per cent,, of- general advertising -comes -through agencies. with'•principal offices outside the State of New, ,York. General advertising constitutes I approximately! 20. per cent of, ,all advertising lineage and' about r 12 ,per cent of 'the gross income of ,the papers' , For',the monthi'of' October; 1938', $25,000'.out of; a. total 'advertising, +'revenue:'foi .the,dailies' of $125,000 :'came.'from:igenera'1 advertising,,' . i,'„ :, , , . •_ . . ,, ,ir' ., , "News ibroadcastsr from; WFAS credit the,specific paper of the group originating the news. WFAS broadcasts material, by the group women's' feature editor.: , She ' is r employed' by ' Westchester Co'tthty -Publishers, 'Inc., and use of her material is paid for by the 'papers to it in proportion" to 'their circulation. Thet station' is admittedly in interstate.comme'rce. • i ^:,: ' + ' , ',^, II. THE ORGANIZATION INVOLVED 'Westchester Newspaper Guild,'chtir'tered by American Newspaper 'Giiildj,' affiliated with"the 'C6ngress1'of' Industrial' Organizations,, is 'a l'abor'"rorgan'izatioil admitting'to• membership -all.' editorial, business', 'ci'reulati'on,'rprodmotidh; 'arnd:ad'vertising employees of the respondent, who` devote 'the major f part' of'their'' time' to such work; excluding ,'i•r !' , "_ .I,.'. i . •'ri , , , 1 °i(1 It ,; it, ( ,. .' III. THE ALLEGED ,UNFAIR LABOR PRACTICES A: The; alleged'refusal ie' bargain tThe complaints, allege that,,the respondents . refused to,, bargain collectively_with the Union in and after•March;1938.,,,On July 6,.,1937, +the, jJnion. sought' to; bargain, one behalf of .the editorial employees, of the 7 dailies owned and controlled by the respondents at that time and submitted a proposed, contract . ,to ,J., Noel Macy, president of the respondent's. 'Macy declared, that he- would, not bargain with, the 6 General advertising is sometimes known as "national " advertising and is distinct from " local" advertising. WESTCHESTER NEWSPAPERS, INC. 637 Union as long as it demanded a guild shop. The negotiators ,for the Union met again with Macy on July 9, 1937. Macy reiterated his, refusal to bargain until the Union withdrew its demand for a guild shop.: No further meetings were held until March 5, 1938, when pursuant, to the Union's request, made on February 12, 1938, Macy met with the Union. At this meeting the union negotiators read a contract which was substantially similar to that submitted in 1937 except that, the guild shop clause appeared further down in the body of, the con; tract. Macy again stated that as long as the guild shop clause: was in the contract he would not bargain or sign a contract and further stated that he could see, no reason why his "gang" needed the Union The meeting adjourned without further results. On April 2, 1938, another meeting was held., The union negotiator read a resolution to Macy requiring him to answer -yes or,no to the question, "Do you refuse to bargain on the other nine points in, the proposed contract submitted to you by the Westchester Newspaper. Guild in behalf of its membership in the Yonkers, New Rochelle, and Mount Vernon units until the Guild Shop .Clause is eliminated?" Macy answered in the affirmative and though the Union sought to discuss other points, Macy persisted in his refusal to do so until the guild shop clause was removed. Thereafter charges were filed with the-Board by the Union. ^ , ' ' I . The parties next met before Frederick Cromwell, Board Field,. Examiner, on September 9, 1938, and a further conference was ar- ranged for the following day, September 10, at Macy's office., At,-.that, meeting after some discussion of the contract proposed by the Union, Macy upon being urged to submit counter, proposals, asked, "Do you want me to sit down and write you something silly?" He neverthe- less agreed to submit such proposals to the next meeting. The following meeting was held on September 24, and Macy sub- mitted his promised counter proposals-in the form of a contract. The union proposals had, asked for a wage scale ranging from $25 a week for inexperienced employees to $45 a week for those with 2 years' expe- rience, and a level increase of 10 percent for all editorial employees. The Macy scale was $18 per week for inexperienced employees during their first year and ran to $40.50 per week for those with more than 5' years' experience, with "no guarantee of employment at the end of the 5-year training period." The Union asked for a- 5-clay, 40-hour week and Macy proposed a 6-day. 44-hour week with exceptions in' the matter of hours in the cases of managing editors, sports and society reporters, and news and city editors. The Union also proposed severance pay, vacations with pay, sick leave with pay, the limitation of inexperienced employees to 10,per cent of the total, the abolition of space-writing, no decreases in pay as a consequence of signing the, contract, and various other provisions usually found in this type of 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, including the guild shop clause 6 and a standing committee to consider interpretations of the contract and other matters affecting the employees' relations with the publisher. Macy's proposals in no case met the union proposals and were particularly unsatisfactory to the Union for the following reasons: (1) they did not provide for job security; (2) they provided for the management to be sole judge of competency in the matter of discharges, thus depriving the Union's standing committee of a large part of its functions; and (3) the pro- posed wage scale without the proviso that the publisher would not decrease salaries, indicated to the Union that wage cuts would in- evitably ensue upon the signing of the contract. For these reasons the Union said that Macy was not bargaining in good faith and that therefore it would ask the Board to press the union charges. The parties next met at the Board regional offices on October 1, 1938, with Field Examiner Frederick Cromwell. The meeting lasted about 5 hours and the various contract clauses were discussed at length, the Union having agreed to postpone discussion of the guild shop until all other proposals had been disposed of. Differing versions of the concrete results of the conference were given by Henry Paynter, union negotiator, and Albert Floersheimer, Jr., union secretary who took notes and the record is therefore confused. Macy, at a sub- sequent meeting, said that he agreed with the Floersheimer minutes and that they were "9932 per cent correct." The meeting opened. with a discussion of the wage demands of the Union which, according to Macy, would have increased his $78,000 payroll by another $23,000. The entire question of pay increases was left undecided. Paynter's version of the hour question was that a '6-day, 40-hour week was agreed upon, while Floersheimer's indicated indecision between a 6-day, 40- or 44-hour week. Still other union people present thought 42 hours had been agreed upon. A differential for the night shift was tentatively agreed upon as was a principle whereby vacation pay was to be added to the minimum wage scale over a period of 50 weeks. Many other clauses were agreed upon, subject, however, to further exploration and consideration by both the Union and Macy, among them being the matter of arbitration of disputes arising out of the contract, space-writing, the term of the contract, discharge causes, salary decreases, and dismissals. No decision was reached on the, guild shop. Thus the vital questions of pay scale, hours, and guild shop were left undetermined. The meeting adjourned to convene again in Macy's office on October 7, 1938. 6 The contract provided " 1 The publisher shall require as a condition of employment of any employee that he be and remain a member of the Guild in good standing at the time of his employment If any employee be not a Guild member at the time of signing this agreement, or at the time of his acceptance of employment, he shall become a member -of the Guild within 30 days of his becoming an employee of the publisher. , "2. The Guild agrees that it will admit to membership and retain in membership any employee subject to the constitution of the American Newspaper Guild and bylaws of the Guild " WESTCHESTER NEWSPAPERS, INC. 639 The Union had meanwhile sent Macy a copy of the Floersheimer minutes. At the meeting of October 7, 1938, Macy agreed to their substantial accuracy. The union representative expressed himself as pleased with the progress that had been made- at the October 1 conference and said that the thing to do now was to discuss wages, hours, and the guild shop. Macy, however, said that he was un- aware that lie had agreed on all the items, that all he had done at' the October 1 meeting was to assent to certain principles, and that clauses covering them were to be worked out. The union negotiator read from a new contract prepared in the light of the October 1 developments. Macy had not at that time seen a copy of the new contract, and did not, until the Union mailed one to him on October 9.7 The discussion at this meeting disclosed that Macy agreed to the night shift 10-per cent differential provision as rewritten; he considered that a 42-hour week might be possible; he agreed split- shift schedules would be posted a week in advance; the outside work and space-writing clauses were satisfactory; and he agreed in principle to the Union's proposal for remuneration for the use of automobiles. Macy made no comments on some of the clauses of the new contract that were read to him and the union negotiators evidently took his silence as acceptance. After about two or three hours' discussion the conference broke up rather precipitately because of an appointment that Macy had to keep. At the conclusion of the meeting Macy stated, "Just because I have not discussed some points as you have read them, that does not mean that I agree with them." The Union interpreted Macy's concluding statement as an indication of his bad faith. Thereafter the revised copy of the union proposed contract was mailed to Macy and the parties again met in his office on October 11. The Union opened the meeting by reading to Macy a 'resolution stating that it considered that Macy's alleged repudiation of certain agreements reached at the October 1 meeting was a display of bad faith, calling upon him for a demonstration of good faith before further negotiations took place, and meanwhile retracting any union concessions that had been made, Macy resisted the imputation of bad faith, saying that lie still accepted the "principles established at the October 1 meeting." The union negotiator asked if Macy would submit counter offers to the union proposals regarding minimum salaries and a guild shop. Macy refused, stating that he saw no use in doing so "If negotiations are to be broken off." The meeting adjourned upon Macy's being informed that the Union would await "his indication of good faith." The Union wrote to Macy on October 16, enclosing a copy of a resolution adopted by it on October 15 in connection with the neogtia- I It, at that time, contained certain corrections and additions made as the result of the October 7 meeting. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bons, `charging Macy with having bargained in,bad faith and with= 'drawing all concessions it had made until Macy indicated his good faith. On October 17; 1939, the Union again wrote to Macy outlining the matters pending on October 11, including "sick insurance" and the remuneration for the use of automobiles, the figures for which' were to be submitted by Macy; inviting suggestions.from him as to how best to cooperate with the editors in working out hours and the provision regarding split-shifts; asking for the conditions under which a union committ'ee'might inspect his books; stating that the Union was to submit a definition "of gross misconduct" and indicate its position with reference to leaves of absence in connection with severance. Thesc'corrimunications were acknowledged by Macy's letter of Octo- ber 25 in which he denied that he had promised an inspection of his books by other than a in satisfactory' third party, "such as Mr. Cromwell" and added that "since the Guild has ruled that the ability to pay or meet it demand has no bearing upon the insistence .that I' agree to such a demand, I assume that the Guild does not feel that any useful purpose toward arriving at a mutually satisfactory proposal in this respect would be served by such an inspection."' On October 26, 1938, the respondents, without consulting the Union, attached to their employees' pay checks the following notice: While the best opinions we have been able to obtain are unani- mous that this paper does not come under the provisions of the Federal Wages and Hours Act we contemplate the passage in the near future of a State law with similar provisions. Looking forward to the passage of such a law the salaries of all employees will hereafter be computed on the -basis of an hourly rate. Your hourly rate is . . . ($.48) The service which this paper is rendering the public requires that you hold yourself available for duty . . . (55) hours . . . per week. ,,,Prior to, the-notice the employees had been paid on a weekly basis without definite hours. By consultation with his editor, Edward Schlesinger, an employee of, the Herald Statesman and at that time .acting president of the Union, found that the new hourly wage multi- 'plied by 40 hours plus 15 hours overtime at time and a half resulted in each case in the weekly rate hitherto received by the employees. The overtime, he was informed, would be credited whether actually worked or not but the employees would, of course, have to be, avail- able for the hours stated. Simultaneously with the distribution of the notices a new set of rules was posted without notice at the Standard 8 At a discussion between Macy and the union negotiator at an early conference where minimum salaries were discussed , the Union took the position that salary demands could not be influenced by Macy's finan- cial condition However, the negotiator subsequently offered to cooperate with Macy to show him how be could increase the minimum .WESTCHESTER NEWSPAPERS, INC. 641 Star, and inferentially at the two other papers, changing conditions of work in that employees would in the future be compelled to sign, time'-sheets and keep records of time spent. On October 27,the Union wrote to Macy expressing its doubts as to the meaning-of the notice and, pointing out to him that it might well be interpreted as cutting, salaries. In the same letter, however, the Union called upon Macy to comply with the provisions of the Wage and Hour Law, which, it stated, applied to the three papers under discussion. , A further conference between the parties was held at the Board's regional offices on November 4, 1938, with Field Examiner Maxwell Feller. A stenographic record of the meeting taken at Macy's instance indicated that the Union attributed lack of good faith in bargaining to Macy on the grounds that (1) he had failed -to stand by the results reached at the October 1 meeting, (2) he had without notice, to the Union changed the pay schedules, hours, and incidents of employ- ment by the October 26 notice and new rules, and (3) he desired to conceal any vacations with pay that he might agree to by.not,spe7 cifically providing for them in a contract, to the end that the, Inter-, national Typographical Union, with which the respondents had con- tracts not providing for vacations with pay, might be deceived. As a result of the meeting Macy undertook, to produce counter proposals, to the union proposed contract of October 7, 1938, as, amended October 9, 1938. - ' Such counter proposals, in the form of a contract, were submitted by Macy on November S. The pay scale offered in this contract was substantially the same as that offered in the original counter proposals of September 24. , The November 8 contract indicated, concessions by Macy from his original stand in respect to an increase in pay, for night workers, limitation of split-shifts, severance pay, no arbitration of contract renewal, compensation for use of automobiles and the, freedom to engage in outside fiction and non-fiction writing.. The, contract, however, provided in several respects for terms less desirable to the Union than those which vIacy, had agreed to on October 1, 1938. The provision for apprentices and space-writers, the definition of night workers, and the failure to provide for sick- leave and, vacations with pay, indicated, recessions from the,position taken by Macy at the October 1 and 7 conferences. In respect to the provisions for sick leave and vacation, apprentices and space writers, the November 8 counter proposals were less favorable to,the respond- ents' employees than the practice then prevailing in regard thereto. On November 28 a second meeting was had with Feller. It was similarly reported, the transcript indicating that no agreement was reached on any point except that the use of automobiles was to be compensated for at the rate of five cents per mile; With this excep-' 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, the meeting adjourned unproductively. No further conferences were had. The history of the conferences indicates that though at first Macy was unwilling to bargain unless the guild-shop clause was eliminated from the Union's demands, he nevertheless did bargain, make counter proposals, and •meet with the union negotiators on October 1, 1938, and several times thereafter. The Union evidently took a view of the purported 'accomplishments of the October 1, 1938, meeting not warranted by the facts. Wages and hours, the most important ele- ment in the contract proposals, were obviously not agreed upon. It proceeded at the October 7, 1938, meeting upon the assumption that the matters discussed at the October 1 conference had been deter- mined finally, and read to Macy from a new contract which he had not seen, and a copy of which he did not have before him. More- over, it included matters in this contract which had not been specifi- cally agreed to by Macy. Under these circumstances we find that Macy's statement made at the termination of the October 7 meeting was not made in bad faith. As a result of this statement however, the Union, impugning Macy's good faith, withdrew any concessions it had made and stated that it would await an indication of his good faith. The negotiations, though not abrogated, were certainly in suspension. This was the situation when the October 26 notice, changing the basis of pay, was given the employees and new rules governing their employment in certain minor respects were issued without previous consultation with the Union and while the negotiations were still pending. ' There is nothing in the record to indicate that the respondents by this action, occasioned by the Wages and Hours Law, sought to undermine the Union. Under the circumstances of this case, including the fact that after the resumption of the conferences Macy embodied the provisions of the notice in the counter proposals submitted by him on November 8, we do not find that his action in issuing the notice without prior consultation constituted a refusal to bargain in good faith.' While under the circumstances in this case we entertain some doubt, we are not convinced of the respondents' bad faith, since the respond- ents engaged in conferences and extended discussions with the Union with respect to the Union's demands, presented counter proposals, and made concessions. Upon the basis of this record, we find that' the respondent did not refuse to bargain collectively with the Union. Y Cf Matter of John J, Charles T, Bertram E and Robert B Oughton, trading as the Windsor Mfg. Co , and Textile Workers Organizing Committee , 20 N L R B 301, Matter of Wilson and Co and United Packing- house Workers, 19 N L R B 990 , National Labor Relations Board v Whittier Mills Company, Silver Lake Company , and Scottdale Malls, corporation , 111 F. (2d) 474 (C C A 5), enf'g Matter of Whittier Mills Company and Silver Lake Company and Textile Workers Organizing Committee, Scottdale Mills and Textile Workers Organizing Committee , 15 N L R B 457, Matter of Dallas Cartage Company and Int'l Brotherhood of Team- sters, Chauffeurs, Stablemen & Helpers of America, Local 745, Interstate Fireproof Storage and Transfer Com- pany and Int'l Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers, Local 745, 14 N. L R. B 411 WESTCHESTER NEWSPAPERS, INC. 643 Since we find that the respondents did not refuse to bargain collec- tively with the Union , it is not necessary to discuss either the appro- priateness of the unit alleged in the complaint to be appropriate or the Union 's representation of.a majority within that unit. B. The alleged interference , restraint , coercion and discrimination George Rance was discharged on December 31, 1938, by the respond- ents, Westchester County Publishers, Inc., and Westchester News- papers, Inc. He had been employed in the circulation departments of various papers in the group over a long period and had received a number of promotions and increases in salary . He had been employed as district manager in the circulation department of the Standard Star for 3 years prior to his discharge . His job as district manager involved the supervision of 30 to 33 'delivery` boys and the responsi- bility for their weekly collections amounting to approximately $9 per boy. At the time of his discharge he was earning $34.50 per week plus a car allowance and certain bonus payments averaging about $6 weekly. His standing in comparison to other district managers was good. He was second on the Standard Star and among the first ten of the district managers of all the papers. On December 8, 1938, a meeting of about 20 advertising and other business department employees of the Standard Star was held in the front office of that paper at about 5 p. in. The customary quitting time was between 5:30 and 6 p . in. Rance and several other circula- tion department employees, including Almuth Strait and R . Wilkin- son, attended . The meeting was presided over by one Dougherty,10- a classified advertising salesman, who was a close friend of Charles H. Griffin, general manager of the paper . Dougherty stated that a com- pany union was to be formed to combat the Guild and unless such company union was formed , " New York people would come up and tell us how to run our business," and a strike called by the Guild would occur the following Monday. A statement in the form of a loyalty pledge , containing an undertaking not to join the Guild, was passed around and signed by most of those present. Rance and the other district managers attending with him did not sign . Strait stated that he thought they should attend the meeting of the "outside group" before deciding on what to do.11 The display manager and the classified advertising manager, of the Standard Star, were present and the latter voiced approval of the proposed company union and apparently signed the pledge. The evidence indicates that both these men were accustomed to giving orders and that one of them had three or four employees under his supervision . There is no further indica- tion in the record of the scope of their powers and authority. The 10 Also spelled Doherty in the record. Ii The Guild had announced a meeting that was to be hold December 10. 1938 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting terminated about 5:45 p. in., and shortly thereafter Paul Wendt; circulation manager of the paper, appeared in the business office. Except for the fact that Dougherty sought to obtain signa- tures to the loyalty pledge among the people in the society department of the Standard Star the following Saturday, December 10, nothing further with reference' to the company union appears in the record. Rance attended 'the union meeting held on December 10, 1938. Wendt was present, having been invited to attend by the union sccre- .tary, Albert Floersheimer, Jr. Wendt saw Rance and two other dis- trict managers at, the meeting, addressed the',mceting without per- mission, and expressed anti-union views. After this meeting Rance ,joined the Union and was thereafter active in soliciting members, speaking to several circulation and mail room employees. He also attended one or two union meetings in New Rochelle at which two or .,three Mount Vernon circulation department people were present. ,-Delivery boys worked under contract with the Standard Star and were.required to post bonds covering two weeks' collections with it. District managers were given receipt books for use in connection with ,bond payments and were instructed to turn in not less than the, full amount of the bond so as to save bookkeeping expenses. The record indicates, however, that on occasion half payments were accepted. Edward Fahey, one of the boys under the jurisdiction of Rance, who had a $15 bond posted with the paper, decided in September 1938 to give up his, route and was willing that John Lennon, Jr. take it over and act for him under the bond until such time as Lennon could him- -self supply one. John Lennon, Sr., father of the boy, and a chain .tore manager, had refused to advance the funds because of difficulty with,the, bond of another\and older son who had also worked under Rance. In order for. the Lennon boy to save money with which to ,pay the bond from the profits made on his route and to prevent, its ,being disbursed for casual expenses at his home, it was arranged with the, consent of the Lennon family that Rance would personally receive and save The money the Lennon boy gave him until the,required amount should be accumulated.. Rance accepted and held payments on account of the Lennon bond, amounting to $10 on November-19 and at the time of his discharge. He gave the boy personal receipts from time to time, the route reports continuing to be made in the name of the Fahey boy.. Wendt was evidently aware of the substitution, having, seen the ,Lennon boy at the "paper point", several times and 'having called him by name. Substitutes on routes were not unusual but were customarily for, only brief periods during the summer vaca- tion period. It appears that the,arrangement whereby Rance under- took to personally hold Lennon' s savings until the bond money was accumulated was unique. 'WESTCHESTER NEWSPAPERS' INC.''' '645 On December 31 Rance was informed by Wendt that he was -dis- charged for withholding company money in connection with s the Lennon 'bond.' Rance insisted. that , it;, was not company money, became 'angry , land left without further ' discussion : 'Rance thereafter -returned the $10 he' had collected' toLennon, ' Sr:,, and .took'his receipt -therefor . ''Rance had never before been criticized ' by the management nor had any complaint been made concerning him. oHe , was given,the customary severance pay, less $10 , 2 weeks after his discharge. Four days later the $10 was returned 'to hun. After the discharge, Fahey requested,,and received from the , management his bond money,, and thereafter: Lennon. posted , his own r ;bond; , his. fatherrfurnishing;;the money,12, and, took over the, route.l .: Wendt, and 1 Winger' ,visited.'M.rs. -Lennon,,, the-boy,'s' mother, on. the morning of. December 31, and,ob- ,tained, One,, or „two , of, ,Rance's! personal receipts from 'he "r. t , After having been told of the discharge , she visited , thel.Standardi.Star office the following Tuesday and urged Wendt to reinstate Rance. He refused and thereafter again 'calhid''on lien 'acid'told''-her'iiot to 'accept any money frolli'Rance:'' ` About a 'w'ee*k 'afterithis', both Wendt grid 'Winger ` "again eam'e' to the L'enfloli ' house ' and talke'd` to' 1Mr'. and Mrs''Lennon '. ' They discussed " soiiie receipt" and sai'd' Rance shiouia have' turned ' the money ' into' the 'office. ' Mr. -Lennon told them' that the money''wasi paid "to''him''o'n'' the 'date'indicated' by the' receipt' and that''he had app 'ro`ved of the arrangement . 'There is 'ho evidence whatever 'that Rance had ahy'improper' thbtive in -holding' Leliiloii's"'money; amounting to '$10 ' over " a' period 6f`3 months. Although 'it'is clear' that'no imputation "of''dishoriesty' call be made, it is not -clear whether Rance ,.by'his actions, violated the company's 'rules m respect , to bond payments. ',,While we ' enter'tain doubts of the bona fides of the discharge , nevertheless upon the entire record, we are not convinced that the respondent singled Rance out for discriminatory treatment. We find that the respondents , Westchester Newspapers , Inc., and Westchester County Publishers , Inc., have not discriminated in regard to the hire and tenure of employment of George Rance , thereby discouraging membership in a labor organization. From all the evidence, we do not find that the respondents inter- fered with, restrained, or coerced their employees in 'the exercise of the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. The operations of the respondents, Westchester County Pub- lishers, Inc ., Westchester Newspapers , Inc., and Herald Statesman, 12 There is evidence indicating that Lennon's father was persuaded by both Wendt and one Winger, cir- culation manager of all the dailies, to furnish the money 323429-42-voi. 26-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARB -Inc., occur in commerce within the meaning of Section 2 (6) of the Act. 2. Westchester Newspaper Guild, chartered by American News- paper Guild, affiliated with the Congress of Industrial Organizations, is-a labor' organization within the meaning of Section 2 (5) of the Act. 3: The • respondents have not, engaged in unfair labor practices within the meaning of Section 8 (1), (3), and- (5), 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 complaints -against the respondents, Westchester County Publishers,, Inc:, West- chester Newspapers, Inc., and Herald Statesman, Inc., be, and they hereby are, dismissed. ' MR. EDWIN S. SMITH, concurring: I concur in, the Decision and Order. I am of, the opinion that where the Board, dismisses allegations of a refusal,to bargain collec- tively for reasons not related to the status of the collective bargaining agency,as the statutory representative, the Board should nevertheless make findings and conclusions regarding the appropriate collective bargaining unit and representation within such unit.," , In view, of the,fact that the majority of the Board has committed- itself to the contrary practice, however, I shall not hereafter consider it necessary in individual cases to register any dissent to that policy.. 13 See my opinions in Matter •of Joseph Levy, etc , and Children's Dress , Infants Wear, housedress . and Bath- robe Workers Union, etc , 2a N. L R B 786, Matter of The Triplex Screw Company and Amalgamated Asso- eiation of Iron, Steel and Tin Workers of North America , etc , 25 N L . R B. 1126 .I1 - , 1 - 3 ',