The New York Times Co.

In the' Matter of THE 'NEW YORK TIMES COMPANY, A CORPORATION and NEWSPAPER GUILD OF NEW YORK Case No. C-775.-Decided August 211, 1940 Jurisdiction :, newspaper industry. Unfair Labor Practices In General Employer cannot fulfill its duties under Act merely by issuing instructions requiring, compliance; it must make such instructions effective. Interference, Restraint, and Coercion: anti-union statements; distribution of loyalty petitions; interference with collective bargaining; interrogation concern- ing union activities; implied threats of interference with conditions of employ- ment; inducing employees to refrain from acting as union officers by offering better jobs; instructing employee to refrain from conversation with other employ- ees on office time contrary to general custom. Employer's refusal to meet with union on grievances not unfair labor practice unless such union is exclusive representative of employees in an appropriate unit or manner and circumstances of the refusal in themselves coerce employees. Discrimination: discharges and transfer of employees for union membership and activities; allegations of discrimination dismissed as to two employees. Remedial Orders : reinstatement and back pay. Employee not fitted for job he held at time of discharge ordered reinstated to some position for which he is qualified having same salary and dignity as the one from which he was discharged. Reinstatement but no back pay to employee who filed charges three years after discrimination. . Mr. Lester M. Levin, for the Board. Cook, Nathan, Lehman ct Greenman, by Mr. Emil Goldmark and Mr. Louis M. Loeb, of New York City, for the respondent. Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Isserman, of Newark, N. J., for the Guild. Mr. Joseph Forer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Newspaper Guild of New York, herein called the Guild,' the National Labor Relations I Charges and amended charges were filed by the Guild on November 12, 1937, December 31, 1937, May 20, 1938, and July 9, 1938, with the Regional Director for the Second Region (New York City). On July 25, 1938, in accordance with Article II, Section 37, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, the National Labor Relations Board ordered that the proceeding be trans- ferred to and continued before it for action pursuant to Article II, Section 37 (a), of said Rules and Regulations. Amended charges were subsequently filed by the Guild with the Board at Washington, D. C. 26 N. L. R. B., No. 112. 1094 THE NEW YORK TIMES COMPANY 1095 Board at Washington, D. C., herein called the Board , issued its com- plaint, dated December 17 , 1938, against-The New York Times Com- pany, New York City, herein called the respondent , alleging that the respondent had engaged . in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and ' (7)' of the National Labor Relations Act, 49 Stat. 449 , herein called the Act. Copies of 'the complaint and notices of hearing and postponement of hearing were duly served upon the respondent and the Guild. Concerning the unfair labor practices , the complaint alleged, im substance , that the respondent (1) discharged and refused to rein- state Fred Jaeger and Leonard H . Goldsmith ? on account of their membership and activity in labor organizations ; thereby discriminat- ing in regard to the hire and tenure of employment of these-individuals, and discouraging membership in labor organizations ; (2) transferred I. Gilbert and Jane Schwartz from their regular positions to inferior positions which they were not by training or experience qualified to perform, on account of their membership and activity in labor organ- izations ; (3) discouraged activity in labor organizations by warnings, threats, and transfers ; and (4) by these and other acts interfered with, restrained, and coerced its employees in the exercise of the- rights guaranteed in Section 7 of the Act. The respondent filed an answer dated January 6 , 1939, denying the unfair labor practices and alleging , in substance , that Goldsmith and Jaeger were discharged for cause and that Gilbert and Schwartz were transferred in the normal course of business. On January 14, 1939, counsel for the Board duly served upon the Guild and the respondent notice that at the hearing he would move to amend the complaint by-adding thereto allegations that the' respond- ent had discharged and refused to reinstate Grace Porter on account of her activity in a labor organization , thereby discriminating in regard to her hire and tenure of employment and discouraging mem- bership in labor organizations , in violation of Section 8 (3) of theAct. Pursuant to notice, a hearing was held from January 30 to May 2, 1939 , at New York City, before Tilford E. Dudley, the Trial Examiner duly designated by the Board. The Board , the respondent , and, the Guild 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. At the opening of the hearing the Board 's counsel moved to amend the complaint ' to include , the allegations of 'discrimination against Grace Porter. Counsel for the respondent raised no objection and the Trial Examiner granted the motion to amend . The ruling of 3 Erroneously named in the complaint as Leonard W. Goldsmith. At the close of the hearing the com- plaint was amended to conform to the proof. 1096 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner is hereby affirmed. The respondent filed an answer to the allegations added by the amendment of the complaint, wherein it denied the alleged unfair labor practices and alleged that Grace Porter was discharged for good cause and for the best interests of the respondent. During the course of the hearing the Trial Examiner made numer- ous rulings on other 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. After the close of the hearing counsel for the Board, the respondent, and the Guild participated in oral argument before the Trial Examiner, after which counsel for the respondent filed two memoranda for the consideration of the Trial Examiner. On March 22, 1940, the Trial Examiner, having been directed by the Board on March 1, 1939, to prepare an Intermediate Report, filed such Intermediate Report, copies of which were duly served upon the parties. Therein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the un- fair labor practices so found and take certain affirmative action. of remedial nature, including reinstatement of Grace Porter, Isaac Gil- bert, and Jane Schwartz to the positions from which they had been discharged or transferred. He also recommended that the complaint be dismissed in so far as it alleged discrimination against Fred Jaeger and Leonard H. Goldsmith, and ordered that the transcript of the oral argument before the Trial Examiner be made part of the record in the case. Exceptions to the 'Intermediate Report were filed by the respondent and the Guild. Thereafter, the respondent filed a brief, which has been considered by the Board. The Guild filed no brief but advised the Board under date of May 28, 1940, that- it relied upon the oral argument before the Trial Examiner in lieu of a brief. The Board has considered the transcript of such argument. Pursuant to notice duly served upon all the parties, a hearing was held before the Board at Washington, D.'C., on June 11, 1.940, for the purpose of oral argument. The respondent and the Guild were represented by counsel and participated in the argument. Thereafter, counsel for the Guild addressed to the Board a letter dated June 14, 1940, citing authority in support of one of the Guild's contentions. Counsel' for the respondent, who received a copy of the above letter, then addressed to the Board a letter dated June 19, 1940, discussing the authority cited by counsel for the Guild. Although these letters were received after expiration of the time THE NEW YORK TIMES COMPANY 1097 allowed for filing briefs, the Board has considered such letters in the nature of supplemental briefs. The Board has considered the exceptions filed by the respondent and the Guild and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT3 The New York Times Company is a New York corporation having its principal office and place of business in New York City, where it is engaged in a general newspaper, news service, and publishing business. It prints and publishes a daily newspaper known as "The New York Times," it weekly business review known as "The Annalist," and a periodical known as "The New York Times Index." - The respondent sells and distributes these publications in a large number of States and in some foreign countries. In 1937, a repre- sentative year, the net paid circulation of the daily edition of The New York Times, amounted to 5.13,593; of which approximately 22 per cent consisted of sales in States other than New York and in foreign countries. The net paid circulation for 1937 of the Sunday edition of The New York Times amounted to 764,277, of which ap- proximately 46 percent consisted of sales in States other than New York and in foreign countries. The respondent purchases almost all of its newsprint from a com- pany, of which it is a joint owner, located in the Province of Ontario, Canada. For the year ending April 30, 1937, the shipments Of news- print from the Ontario company to the respondent's plant in the State of New York amounted in value to approximately $3,500,000. The respondent purchases certain other supplies, including a substantial amount of machinery, type and stereotype metal, ink, and office equip- ment, from States other than New York. The total advertising in The New York Times for 1937 exceeded $10,000,000, of which approximately 24 per cent was national advertis- ing, including automotive advertising. For the purpose of soliciting such national advertising, the respondent maintains offices in several States and employs several advertising salesmen to travel throughout the United States. The respondent buys, sells, collects, transmits, and receives news, photographs, and 'other intelligence in the State of New York and, to a substantial extent, in other States and foreign countries. From its. New York offices it sells and transmits news and other intelligence 3 The findings set forth in this section are based on a stipulation entered into 'by counsel for the Board and the respondent. 1098 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD to newspapers located in Illinois, California, Massachusetts, Missouri, Wisconsin, Mexico, Argentina, Japan, and Australia. The respondent is a'member of. the Associated Press and purchases the news service of, the North American Newspaper Alliance. It directs and controls. the operations of Wide World Photos, Inc., a wholly owned subsidiary, which supplies news photographs to The New. York Times and other papers in the United States and Canada. The respondent owns and operates at its New York plant a wireless 'sending and receiving station for the transmission of news and mes- sages to and from points. outside of the State of New York, including foreign countries. It maintains offices, agents, and representatives in 7 cities of the United States' outside of New York State, in cities in 21 foreign countries, and in the Philippine Islands and the Canal Zone: . II. THE ORGANIZATIONS INVOLVED Newspaper Guild of New York is a labor organization affiliated with the American Newspaper Guild, which is, in turn, affiliated with the Congress. of Industrial Organizations. The American Newspaper Guild represents employees, chiefly in the news and commercial departments, of newspapers, news publications, and news syndicates, in the United States. The jurisdiction of Newspaper Guild of New York extends to employees of such concerns within the vicinity of New York City. and Long Island. Newspaper Office Guild of New York, herein called the Office Guild, was a labor organization formed in the spring of 1937, for the purpose of organizing and representing unorganized workers in the newspaper field, who consisted largely of commercial employees. The Office Guild had over 2,000 members from the New York metropolitan area by' the late summer or early fall of 1937, at which time it was absorbed by the Newspaper Guild of New York. Bookkeepers, Stenographers and Accountants Union, Local 12646, herein called the B.-S. A. U., was in 1935 and 1936 a labor organization affiliated with the American Federation of Labor, admitting to mem- bership office workers in the New York area. III.: THE UNFAIR LABOR PRACTICES A. Negotiations between' the 'respondent and the Guild; interference, restraint, and coercion; background Beginning with the summer of 1934, the Guild has at intervals negotiated with the respondent concerning the creation of a contrac- tual relationship and the establishment of a grievance procedure. Conferences on one or both of these subjects were held on July 17, 1934, August 21, 1935, August 3, 1936, March 17 and 24, June 25, THE NEW YORK TIMES COMPANY 1099 and July 16, 1937, and on a later occasion subsequently discussed. Between meetings various correspondence passed between the respond- ent and the Guild. However, the parties at no time reached agreement. The chief subjects of disagreement were the Guild shop and the question of whether the respondent would meet .with the grievance committee of the Guild. The Guild shop is an arrangement providing that employees who are members of the Guild must remain members during the period of the contract providing for the Guild shop, and that newly hired employees must become members of the Guild within a stated time after their employment. Arthur Hays Sulzberger, president of the respondent and publisher of The New York Times, consistently informed the Guild that the respondent would not accept a Guild shop for its news and editorial employees. He based his position on the theory that a uniformity of opinion would arise if all such employees were members of a labor union, which in turn would lead to biased journalism., Sulzberger testified at length in explanation of this view. He also testified, in substance, that the Guild shop for news and editorial employees was "the only issue that has been in my mind, and the only thing that I ever objected to"; that he had no objection to such•emplbyees joining a union; and that he did not oppose the existence of preferential or closed shops for employees outside of the news and editorial departments. The respondent also refused, in the course of, the conferences, to meet with a grievance committee of the Guild; however,,fora short time it met with a group of members of the. Guild without according it recognition as a union committee. This refusal was first based on an announced objection to a "uniformity of viewpoint on the part of those persons who are entrusted with the responsibility of securing, writing and editing the news." Subsequently two other reasons-were assigned: (1) that the establishing of a grievance procedure was pre- mature until the Guild and the respondent had entered into a contract which would in part provide therefor; (2) that a grievance committee was unnecessary because aggrieved individuals had. free access to Sulzberger and Edwin L. James, managing editor of, The New York Times. At several of the conferences Sulzberger 'assured the representa- tives of the Guild that the respondent would not discriminate against any employees because of their. membership in the Guild. These representations were publicized by the Guild in bulletins which were widely distributed among the respondent's employees, including its executives. One such assurance was made by Sulzberger at the con- ference of July 16, 1937. At this time the representatives of the Guild referred to reports they had received from office workers that the 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD latter were "meeting difficulties in organization because of the attitude of subordinate officials in. the business offices." Sulzberger replied, "There has never been any act of Guild activity that has counted against any man on the Times, and there never will be." He also stated that any of the respondent's executives who should be found engaging in actions contrary to this policy would be discharged. On August 11, 1937, Sulzberger and representatives of the Guild resumed a discussion of a 1.4-point program presented by the Guild. The first four points had already been discussed at the meeting of July 16, 1937, and the conference therefore opened with consideration of point 5, the proposal for a Guild shop. The conferees spoke on this subject at length, with Sulzberger again asserting that a Guild shop covering news and editorial employees was unacceptable because it would cause bias in the reporting and editing of the news. Finally, the Guild representatives asked Sulzberger.to skip the fifth proposal and pass on. to the remainder of the Guild's program. Sulzberger agreed to do so. At this point Milton Kaufman, exectuive secretary of the Guild, remarked that the Guild represented a majority of the respondent's news and editorial workers. Sulzberger asked for the relevant sta- tistics, but this information was not furnished. After some further discussion of representation, Sulzberger said, in the words of his own testimony: I was sorry, but I would have to change what I had previously told him, that instead of talking informally as I had, as I had thought we were with a group who were interested in improving working conditions for newspaper men, that if now they were present in my office technically under the Wagner Act, represent- ing a majority of the newspaper workers from the New York Times-news department workers-that if they took that tech- nical position that I would be driven also into a technical posi- tion, that I would tell them that I was sorry I could not do what they suggested, and skip point 5, but . . . rather that we had reached an impasse on point 5, and that we had no meeting of minds on it, and that until we did we could not proceed. The representatives of the Guild argued that Sulzberger was taking an unfair position. Sulzberger again reviewed his concern "with re- spect to the closed shop for news department workers," and said that he could not depart from his position until the "threat" of a closed shop for the news department was removed. The discussion then continued as stated in the following excerpt from Sulzberger's testimony: They [the representatives of the Guild] told me that the Herald-Tribune was insisting that they waive the question of the THE NEW YORK TIMES COMPANY 1101 Guild or closed shop before they sat down to negotiate with them, and I said: Well, gentlemen, we are going to require more than that. We are going to insist upon an affirmative statement for the open shop before we can proceed in the signing of any contract, because so long as the requirement of a closed shop stands in your constitution,4 I can only assume that you would waive the ques- tion now in order to gain strength, and come back- later on, and I am not willing to take that first step. Kaufman testified as follows as to the position taken by Sulzberger: "Mr. Sulzberger then made the proposal that he would not consider a contract with the Guild unless not only was there no Guild shop but that we would have to assert in any contract that we were against the Guild shop and that we would never ask for a Guild shop, even beyond the period of the contract." It is unimportant whether Sulzberger so elaborated on his statements quoted above, or whether Kaufman's testimony merely represents his own construction of these statements. By whatever he said Sulzberger meant to communicate, and did com- municate, the following proposition: So long as the Guild retained its constitutional provision relating to the Guild shop in contracts, the respondent would consider that there existed an impasse to formal negotiations with the Guild, removable only by the Guild's declaring that it was opposed to the Guild shop for news and editorial workers and agreeing that it would never in the future demand a Guild shop for such employees. This finding is based on (1) Sulzberger's testi- mony on the conference; (2) Kaufman's testimony indicating what the Guild understood Sulzberger to mean; (3) other portions of Sulz- berger's testimony indicating his general position.5 After Sulzberger had thus presented his views, one of the Guild representatives inquired as to the kind of a contract which the re- spondent would be willing to write if the parties agreed on a statement concerning the Guild shop. Sulzberger then replied as stated in the following excerpt from his testimony: To the best of my recollection I replied that there were a couple of stumbling blocks. To begin with, there were a group of men 4 The American Newspaper Guild had 2 months previously adopted a revised constitution , of which one article stated : "No contract shall fail to provide for the Guild Shop and the five-day forty-hour week unless the [International Executive Board] gives specific permission." 5In connection with the last point we quote the following from Sulzberger's testimony on cross-examination: Q. It is your position, is it not, that you require of the Guild to give up the advocacy of the closed shop or the Guild shop, not only at the present time but for all time; isn't that so? ' So far as the New York Times is concerned? A. My attorneys tell me I cannot do that . Otherwise, that would be. Q. In other words, that it is your position now that you do not require as part of reaching an agreement with the Guild that they forever agree not ask for a Guild shop? A. I want to get that to extend as far into the future as it can be legally extended. Q. What is your position- A. If I could ask for it forever and it could be legal , and it could be agreed to, I would ask for it. I would have to ask the attorneys if it could be accomplished legally. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that I knew of who had no wish to be represented by the Guild, and that I had to take their point of view into consideration. Second, that we might find it necessary during the course of the negotiations to challenge the appropriateness of the bar- gaining unit. Third, that if those stumbling blocks were passed that we would then be prepared to write a contract which incorporated'the lowest scale which the Guild had accepted in any of its contracts in New York City. It is clear that Sulzberger did not consult his attorneys on the subject prior to its arising spontaneously at, the conference now under dis- cussion. I pointed out that we had no desire whatsoever to pull our scale of wages which was good, down to that level, but unionism means uniformity, and we saw no basis whatsoever in agreeing to pay more than the Guild was willing to accept elsewhere. The conference ended without the reaching of a common understanding. Sulzberger's reference at the conference to "a group of men that I knew of who had no wish to be represented by the Guild" was based on a declaration, referred to in the record as a "loyalty petition," which had been circulated among the respondent's 'employees for signature some time before the conference. This declaration read as follows: WE, the undersigned members of the News, Editorial and Sunday Departments of The New York Times, engaged in the gathering, writing, editing and make-up of material for publica- tion, oppose efforts by any group to force from the publisher of this newspaper a contract governing salaries and working con- ditions which would be binding upon all so employed. WE concede the right of the Newspaper Guild to attempt to bargain collectively for its own members. However, we main- tain that any organization which includes in its membership others than those employed in the confidential relationship which exists between the publisher and his reporters, editors, rewrite and make-up men cannot speak authoritatively for the news and editorial departments. WE hold also that newspapermen's organizations which com- mit their members to one side or another of social, economic, and political issues tend to undermine public confidence in the impartiality of the press. As for The Times, we point out that the publisher and the managing editor have shown a disposition in the past to hear individual grievances and to make individual adjustments. THEREFORE, we feel that we, who by a community of thought are bound together without, formal organization, should make THE- NEW YORE TIMES COMPANY 1103 known our position and stand ready to affirm it publicly if and when the necessity arises. The "loyalty 'petition" was signed by approximately 80 of the respondent's employees, including the following executives: Clarence Howell, assistant night managing editor; Neil MacNeil, first assistant to the managing editor; R. H. McCaw, night managing editor; and Harvey W. Getzloe, night city editor. On September 2, 1937, the Guild adopted a resolution protesting the respondent's discharge of Leonard H. Goldsmith and alleging that Goldsmith had been discharged on account of his union activity and that other employees had been subjected to intimidation and dis- crimiuation. Soon afterwards Sulzberger called a meeting which was attended by about 20 or 30 of the executives and subexecutives of the respondent's business offices. Sulzberger told these individuals that lie had called them together because of the charges made by the Guild, that he wanted to assure them that the charges were without foundation, that he had perfect confidence in them, but that at the same time he wanted to caution them. Sulzberger added that if any executive was "found guilty of discrimination" he would be promptly dismissed. Sulzberger also said that the respondent had never had any quarrel with the Guild and that its only concern in its relations with the Guild was the matter of the Guild shop in the news depart- ment. He likewise explained. his views on the latter subject. On September 23, 1937, Sulzberger addressed an open letter to the respondent's staff alleging that the charges made in the Guild's resolu- tions were false. The letter also stated: The New York Times has never either intimidated its employees or discharged them arbitrarily. When some weeks ago a state- ment to the contrary was made to me by Guild representatives, I then advised them that any executive guilty of such practice would be instantly dismissed. That rule has been in operation and will continue to operate. We have never opposed the Newspaper Guild on economic issues. We have consistently refused, however, and will con- tinue to refuse, to enter into any agreement with it that provides for a Guild shop, preferential shop, or any other kind of closed shop, for news and editorial workers. The management has never sought to know whether this or that person was affiliated with the Guild, any more than it has inquired into the individual's church membership or political party adherence. Our only interest has been whether or not each worker here was a good newspaper man and whether he honestly and competently performed the tasks for which he was employed. That will continue to be our attitude. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later in September 1937, Sulzberger informed the Guild that lie was willing to continue contract negotiations. He did not, however, retract any part of his previous statement of position. The Guild did not accept the invitation to resume the discussions, and no further negotiations were held between the respondent and the Guild.' Upon the basis of the foregoing facts we are of the opinion that the respondent engaged in certain unfair labor practices at the conference of August 11, 1937, and in connection with the "loyalty petition." At the conference of August 11 Sulzberger served notice on the re- spondent's employees that so long as the Guild's constitution con- tained the Guild shop proviso the respondent would not bargain with the Guild unless that organization first made a declaration and promise in contravention of the spirit of its constitution. The respondent would, of course, have had no right to exact this condition as a, prerequisite to bargaining, once the Guild was designated as collective bargaining agent by the majority of the employees in an appropriate unit. Accordingly, the effect of the respondent's position was to remove from its employees one of the major incentives of continued organization,-the hope that by acquiring sufficient union member- ship they would be able to bargain collectively with their employer. In addition, by causing its employees to understand that a contract with the Union would probably be more to their detriment than to -their advantage in the all-important matter of wages, the respondent eliminated still another incentive to organization,--the hope of obtain- ing a favorable contract defining the terms and conditions of employ- men t. The implication that union organization would have a negative or unsatisfactory effect on wages was made more pointed by the respondent's assertion. that such a result would flow from some quality supposedly inherent in unionism. We find that the respondent, through the actions of its president, Sulzberger, at the conference of August 11, 1937, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In signing the "loyalty petition," four of the respondent's executives openly participated in a severe attack on the Guild and its policies. The action of the executives who thus discredited the Guild is, because of their position, attributable to the respondent. We find that by such action of its executives the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in. Section 7 of the Act. In his Intermediate Report the Trial Examiner found that the respondent's refusal to meet with the grievance committee of the 6 Subsequently there were negotiations between the Guild and wide world Photos , Inc., a subsidiary of the respondent. THE NEW YORK TIMES COMPANY 1105 Guild constituted a violation of Section 8 (1) of the Act. It is our opinion, however, that an employer's refusal to meet with a union on grievances is not an unfair labor practice unless such union is the exclusive representative of the employees in an appropriate unit 7 or unless the manner and circumstances of the refusal in themselves coerce employees in the exercise of their right to self-organization.' Since the evidence does not establish either of the prerequisites indi- cated, we find that the respondent has not committed an unfair labor practice in this respect. The finding of the Trial Examiner to the effect stated is, therefore, hereby reversed. The preceding discussion serves not only as an analysis of certain practices engaged in by the respondent, but also as background to matters subsequently considered. We have indicated that Sulzberger on several occasions declared that it was the respondent's policy not to discriminate against members of the Guild and that it would dismiss executives who violated this policy. Since these declarations were communicated, directly or indirectly, to the respondent's employees and executives, we accord them consideration in assessing the signifi- cance of or motivation for various actions. Their value for this purpose is, however, weakened by several factors of which one is the fact that Sulzberger, who made the declarations, himself participated in the respondent's interference with, and restraint and coercion. of, its employees. Another is the circumstance that the record shows that Sulzberger persistently adhered to a flat disbelief, based on faith and not on investigation, of any allegations that his subordinate executives had harassed or discriminated against employees on account of their union membership, even while expressing a desire to stop any such conduct by the executives if it should occur. It is also abundantly clear from the record that in any case where an ordinary employee alleged unfair treatment it was the policy of the respondent's major executives to affirm the actions and contentions of the minor executive involved, either without investigation or after an investigation merely designed to corroborate the executive's position. It is also of service for future purposes to review certain general contentions made by the respondent and by the Guild. Sulzberger testified: 7 Cf. Matter of Mooresville Cotton Mills and Local No.1221, United Textile Workers ofAmerica, 2 N. L. R. B. 952, enf'd as mod ., Mooresville Cotton Mills v. IV. L. R. B., 110 F. (2d) 179 (C. C. A. 4); Matter of Corn Products Refining Company and United Cannery , Agricultural, Packing & Allied Workers of America, Local 169, 22 N. L. R. B., 824. 8 Thus, where a sudden termination of dealings with a minority union was motivated by an employer's determination to drive the union from the plant and was part of a continuing course of unfair labor practices, we held that the termination of dealings was itself an unfair labor practice . Matter of Berkshire Knitting Mills and American Federation of Hosiery Workers, Branch #10, 17 N. L. R. B. 239 . Likewise, we have, held. that an employer's coercive refusal to meet with union representatives because of their affiliation with a national union is an unfair labor practice. Matter of The Niles Fire Brick Company and United Brick Workers' L. 1. U. No. 198, 18 N . L. R. B. 883; Matter of R. C. Mahon Company and Steel Workers Organizing Committee (Affiliated with the C. I. 0.), 23 N. L. R. B. 1084. - 1 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have never been prejudiced against the Guild. We have never been prejudiced against unionism. Our building is full of unions 9 . Long before the Wagner Act, we recognized the unions' right to bargain collectively. We did not need any instructions along those lines. Sulzberger also testified that because of a concern for objective jour- nalism he had always attempted to avoid "issues" with 'the Guild; that "to have created an issue would mean that there would be a violence of feeling" detrimental to his desire for impartial reporting. The respondent claims that because of this professed desire to avoid "issues" it has actually overlooked misconduct on the part of members or officials of the Guild solely because the infliction of discipline might have provoked a controversy with that organization. Sulzberger testified: "I was guilty of Guild discrimination in favor of the Guild." On the other hand, the Guild maintains that the respondent's expres- sions as to its policy are "merely a thin smoke screen for a determined, unrelenting opposition to the Guild. which appears wherever the surface of management's official attitude is scratched," and that "there are basic contradictions between Times' action and Times' official policy." The Guild also urges that the respondent's actions conform to a pattern of active animosity toward the Guild. In considering the evidence we have borne in mind the conflicting contentions sum- marized in this paragraph. In certain instances the respondent relies on Sulzberger's utterances as relieving the respondent of responsibility for some of the actions of its executives or supervisors; it urges in these cases that if such executives or supervisors interfered with the organization of their employees, they acted beyond the scope of their authority. This contention is without merit. The respondent cannot fulfill its duties under the Act merely by issuing instructions requiring compliance with the Act. Its obligation extends to making any such instructions effective. u B. The discharge of Grace Porter Since April 1, 1910, Harry H. Weinstock has been the respondent's auditor and as such has had supervision and control of the auditing department. . In September 1935 Sally Lazare had been Weinstock's secretary for about 3 years, and Mrs. Lucy T. Pingel had been his file clerk for about 9 years. Pingel and Lazare collaborated closely in performing the secretarial, clerical, and miscellaneous work of Wein- Y The respondent's mechanical departments are completely unionized and in some instances operate under closed-shop contracts . It does not follow, however , that the respondent's attitude toward the Guild is analgous to that shown by it to the long-established mechanical unions. 10 Swift & Company v. N. L. R. B., 106 F. (2d) 87 (C. C. A. 10), enf'g as mod. Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America , etc., 7 N. L. R. B. 269; Matter of The Niles Fire Brick Company and United Brick Workers' L. I. U. No. 198, 18 N. L. R. B. 883. THE NEW YORK TIMES COMPANY 1107 stock's immediate office, and worked, facing each other, at desks placed together in an outer office. Early in the fall of 1935 Lazare was planning to quit the respond- dent's employ in order to leave for England. At this time she met Grace Porter through the offices of a mutual friend and recommended Porter to Weinstock as her successor. Weinstock interviewed Porter on September 17, 1935, spoke to her about the confidential nature of the post she was seeking, and hired her as his secretary at $30 a week. Porter began work on September 30, 1935, but Lazare remained until October 16, in order to familiarize Porter with the position. Porter was quick to learn and performed her work efficiently and to Weinstock's satisfaction. Her duties gave her access to information considered confidential by the respondent, including the respondent's daily profit and loss statement and items relating to its expenditures, pay rolls, and other financial matters. About the second week in October 1935, Lazare arranged a meeting between Porter and three other employees of the auditing department, Una Lissemore, Isaac Gilbert, and Louis Berg, to discuss the possibility of organizing their fellow employees in a union. The meeting, attended by the four individuals last named, was held late in October or in November 1935 in a private office procured by Porter. The next week the same persons met at the same place with a union organizer, who advised them to join the B. S. A. U. as soon as they were ready. Sometime in November 1935 Pingel saw on Weinstock's desk a handbill urging "Fellow Workers of the New York Times" to vote the Communist Party ticket. At the lower right-hand corner of the flyer was the legend: "(ISSUED BY COMMUNIST PARTY UNIT IN THE NEW YORK TIMES)." At the lower left appeared: "(TECHNICAL WORK DONE BY MEMBER OF B. S. & A. U. 12646)." Attached to the handbill was a memorandum from Managing Editor James to Sulz- berger, which read: "The spies report that some of the auditing people are back of this. Maybe it will amuse Mr. Weinstock to try to find out who." Pingel told Porter about the handbill and attached memorandum, and Porter in turn examined the paper. James' reference to "spies" was facetiously intended; Porter and Pingel, however, inferred there- from that the respondent in fact employed professional spies. Pingel filed the communist dodger and James' memorandum in a file designated as "labor-miscel," concerning which she testified: "I put all miscellaneous matters pertaining to labor, whether it came from the Department of Labor, whether it came from the United States Department of Labor, until I had enough material of one kind to make a special folder and everything went into that miscellaneous folder." 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 12, 1935, Porter, Gilbert, Berg, Lissemore, and an- other employee, Flinker, met in the office of the B. S. A. U. with two representatives of that union. Each of the employees filed an application for membership in the B. S. A. U. and paid an. initiation fee. Later in December 1.935 Porter, Berg, Lissemore, and Gilbert again met in the B. S. A. U. office. They discussed methods of interesting others in union organization and took some union literature. At this meeting Porter told about-the "spy" memorandum attached to the communist leaflet, which she had seen on Weinstock's desk, and certain measures designed to insure the privacy of their membership cards were taken. The group also decided to meet biweekly thereafter. Berg subsequently distributed some of the B. S. A. U. literature to other employees of the respondent, and Lissemore distributed one or two leaflets. The others did not distribute any union literature. Porter testified that on several occasions during the course of the nascent union activity above described she told Pingel of-the meetings of the group interested in organizing, invited Pingel to attend 'a meeting and to join the B. S. A. U., and discussed with Pingel a leaflet of the B. S. A. U. sent to the latter by Lissemore. According to Porter, Pingel refused to attend the meeting, saying that she believed in unions and might have attended if she were 20 years younger but would not do so in view of the "spy" memorandum. Lissemore testified. that she spoke to Pingel about joining the union group and that she sent Pingel one of the B. S. A. U. leaflets. Berg's testimony of certain conversations with Pingel also indicates that Pingel had knowledge of the union activity. Pingel testified, however, that she knew nothing whatever of the formation of the B. S. A. U. and denied that she had received a B. S. A. U. leaflet or had been informed of any union activity. Pingel further testified that in November or December 1935 Porter informed her that Lazare was "active in Communist matters" and had acted as a secretary to the Communist Party at a salary of $25 a week. According to Pingel, Portec also said that she had met Lazare at communist meetings, and that she had been introduced by Lazare to other active Communists in the auditing department, namely, Lisse- more, Gilbert, and Berg. Porter contradicted Pingel's testimony in this respect and also denied any communistic affiliation or participa- tion. On January 2, 1936, Pingel had a conversation with Weinstock concerning Porter. Both Pingel and Weinstock testified, in sub- stance, that Pingel told Weinstock that Porter was a Communist and informed him of what Porter had allegedly said concerning the communist involvements of Porter, Lazare, Gilbert, and Berg. They THE NEW YORK TIMES COMPANY 1109 also testified that Pingel made no mention of any union movement.11 Later that same day Weinstock called in Porter. He asked her if she was a Communist. She said she was not. Weinstock then said he had information that she was a member of the Communist Party and was associating with a small group of persons in the auditing department who were also inclined toward communism. Porter de- nied- both charges, and asked him to reveal the source of his informa- tion. He refused on the grounds that it would cause needless ani- mosity. Weinstock stated that Porter had been frequently seen with a "well-known Communist." Porter replied that she was not acquainted with any Communists and suggested the possibility of a mistake in identity. Weinstock inquired about a trip which Porter had made abroad, asked whether she thought someone was trying to make trouble for her, and asked who were her friends in the office. She named Pingel, Lissemore, Berg, Gilbert, and Solomon Lask, the office boy. Weinstock also referred to the confidential nature of Porter's position, and stated: "Of course, we have no objection to the affiliations of. any of the people in the Times. We have Commu- nists, Socialists, Republicans and Democrats. You know The New York Times is a liberal newspaper." Our recapitulation of the conversation up to this point is based on the testimony of both Porter and Weinstock, who agreed on the account so far stated with the-exception of such minor variations as may be expected to arise where two witnesses testify some time after the event they' describe.12 Porter further testified, however, that Weinstock also asked if she was a member of the "bookkeepers union" and if she had "spoken to anybody about a union," and that she replied in the negative to both questions. Thereupon, she testified, Weinstock said that he knew she was trying to organize and that he wished she would tell him the whole truth; "anyway, to think it over." Weinstock denied asking these questions or accusing Porter of organ- izing, and testified that at the time he knew nothing about union It Pingel testified that before speaking to Weinstock she told her husband of Porter 's alleged revelations concerning Communism and that he advised her that it was her duty to inform Weinstock . Counsel for the respondent called Mr. Pingel , but the Trial Examiner sustained an objection to questioning of the witness as to what'Mrs. Pingel had said to him. Testimony by the witness on this subject would be inadmissible in the courts under the ordinary rules of evidence . If offered for the purpose of establishing what Porter told Mrs. Pingel it would be inadmissible hearsay . The only other relevance of such testimony would seem to be to support Mrs. Pingel 's credibility. But as there had been no attempt to impeach Mrs. Pingel, the testimony would be inadmissible under the rule that a party may not introduce prior consistent state- ments for the purpose of supporting the credibility of an unimpeached witness . 3 Jones, The Law of Evi- dence in Civil Cases (1938), sees. 868, 869; 2 Wigmore , Evidence (1923), sec. 1124; Anaran v. Mel ken, 230 Mass. 322, 119 N . E. 767; Dunn v. Busehmann , 169 Wash . 395, 13 P. (2d) 69; Judd v. Letts, 158 Cal. 359, 111 Pac. 12. The Board, however, is not bound by the rules of evidence , and we are of the opinion that under all the circumstances the Trial Examiner might well have permitted Mr. Pingel to testify on the subject indi- cated . However, we do not consider that the exclusion of the offered testimony was of sufficient importance to warrant a reopening of the case. 12 We shall, for the purpose of convenience , employ a similar method with respect to certain of the other conversations subsequently described herein. That is, we shall state our findings without troubling to indicate the existence of conflicts in testimony where such conflicts are not on material points. 323429-42-71 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization or membership in his department. He also testified that he asked Porter to tell the truth as to her communist associations only and said that if she did so they could come to a mutually satis- factory conclusion. The conference ended without any admission or final statement having been made by either party. Porter then returned to the outer office and spoke to Pingel. Porter testified that she said at this time that Weinstock had accused her of being a Communist and of attempting to organize a union, that she had denied both accusations, and that she had untruthfully denied union membership because of her fear that an admission would cause the discharge of herself and the other union employees. Pingel testified that Porter said she had been questioned by' Weinstock about her communist activity and had not told him the truth in order to avoid trouble for herself and others in the department. Shortly after the conversation with Pingel, and in Pingel's presence, Porter dialed to the editorial auditing section on the house telephone and spoke to Lissemore. According to the testimony of Lissemore and Porter, the latter said over the telephone that she had been questioned about the union and told Lissemore to "deny everything." Pingel testified that Porter said she had been questioned about her communist activities, after which she told her listener to "deny everything." Pingel then went into Weinstock's office. Both Pingel and Wein- stock testified that she reported that Porter had called someone in the editorial auditing division and had advised her listener to "deny everything" if questioned on communism." Weinstock then summoned his subordinate, Edwin LeRoy Finch, the respondent's editorial auditor and himself a supervisor, and asked Finch to ascertain whether Lissemore had just previously received a call from someone on Weinstock's immediate staff. Finch returned to his own office, requested Lissemore to step outside into the corridor, and asked if she had received such a telephone call. ' Lissemore said she had not. Finch believed Lissemore and reported her denial to Weinstock. According to his own testimony, Weinstock felt that Pingel''s story needed to be verified or disproved. He therefore instructed Finch to make further inquiries of Lissemore and Gilbert. Weinstock and Finch both testified that the instructions were that Finch should ask Lissemore and Gilbert if they were Communists. Finch again re- turned to his office and spoke separately to Lissemore and Gilbert. Finch testified that he asked them if they were members of the Com- munist Party or if they were Communists and that he did not refer to unions. Lissemore testified that Finch asked her if she knew any- 13 The record does not indicate how Pingel was aware that Porter had dialed the editorial auditing divi- sion . Nor is it clear why Weinstock subsequently assumed, correctly enough, that Porter had spoken to Lissemore rather than to Gilbert, also employed in that division, or to some third person. THE NEW YORK TIMES COMPANY 1111 thing about, or belonged to, a union, that he said nothing about communism and that he remarked that Weinstock could ask for her resignation if she attended union meetings. Gilbert, testified that Finch asked him if he was a Communist and that Finch also inquired if he had approached anyone or had himself been approached with respect to joining any sort of an office workers' union. Although the testimony is therefore conflicting as to the nature of Finch's inquiries, there is agreement, and we find, that Lissemore and Gilbert entered denials to whatever questions were asked. Finch reported the denials to Weinstock. Charlotte Fischbach, also an employee in the editorial auditing division, testified that in January 1936 Finch asked her if she had heard anything about a union being formed "in the Times" and that she replied that she knew of no union other than the Guild, which at that time did not admit to its membership employees in commercial departments. Fischbach's testimony was contradicted by Finch, who asserted that no such conversation occurred. On Friday morning, January 3, 1936, Weinstock asked Porter in his office if she was ready to discuss "more frankly" the " Communistic question." She replied affirmatively. Weinstock told her he had been informed of her telephone call to the editorial auditing division, again accused her of being a Communist, asked her to tell him the truth, and said he could forgive almost anything except untruthful- ness. Porter denied having made the telephone call, reiterated that she was not a Communist, and said she was telling the truth. Porter testified that she also told Weinstock that she had been a member of the Office Workers Union while.elsewhere employed and that she mentioned that a union leaflet had been brought over at one time to Pingel and herself. She further testified that Weinstock then ques- tioned her, and she entered denials, as to whether she had joined or tried to get others to join a union and whether others had spoken to her about joining. Weinstock denied so questioning Porter. He testified, however, that Porter had volunteered information concern- ing her earlier membership in the Office Workers Union during their conversation of the preceding day and that he had then told her that there was no objection to unionism either on his part or, so far as he knew, on that of anyone else in the respondent's plant. On Saturday, January 4, 1936, Porter entered Weinstock's office, told him she was very much upset over .the situation, and wept. Weinstock again urged her to tell the truth, and said, "If you would tell me 50 per cent of the truth, or you would tell me that 50 per cent is true or 75 per cent is true we could come to some understanding." Porter insisted that she had told the truth. Porter testified that Weinstock asked her if she was dissatisfied with her job, and said, "You know that there are unions in The New York Times.'; Wein- 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stock, however, testified that his only reference to unions had been made in their conversation of January 2, 1.936, as already described in our preceding statement of his testimony. On the following Monday Weinstock again asked Porter to tell him the truth; she maintained that she had clone so. He again refused her request to name his informant and said he had not yet decided on what action to take. Sometime during the first week in January 1936 Weinstock called in Louis Berg and asked Berg if he was a Communist or associating with Communists. Berg replied that he. was not. Berg testified that, in addition, Weinstock "told me that he had been informed that there was a movement for organization, but what the nature of the organiza- tion was, he didn't say. He wanted to know if I had heard of anything on it, or anybody had approached me on. the subject, and I denied any knowledge of it at all. . . . I believe he used the word `union,' but I am not sure of that." Weinstock contradicted Berg's quoted testimony. The conversation ended when Weinstock told Berg to thin, over what had been said. Later that same day or the next day Weinstock recalled Berg and asked him if he had any other answers to give. Berg said he had not'. During this same period Weinstock- asked Clifford H. Pyle, office manager of the auditing department and a supervisory official, to speak to Lask. Weinstock testified that he instructed. Pyle to ascer- tain whether Lask was a member of the Communist Party or was engaging in any communistic activities in the department or, was associating with others so engaged. Pyle corroborated this testimony in substance. Pyle further testified that he questioned Lask accord- ingly, that Lask denied being a Communist or knowing any Commu- nists, and that he reported the denials to Weinstock. Lask, however, gave the following account of their conversation: . . . lie [Pyle] asked me if anybody had asked me to join a union, or proselytize, that was his word, or talk about the union in any way. I said they never had. . . . He added, "Why the Times didn't care whether anybody belonged or not," and they were entitled to their own views, but that anybody occupying a semi- executive position and handling matters of a confidential nature might violate any confidence that was imposed upon them. . . . He . . asked. whether I had any suspicions, or whether I could name anybody who might have done any proselytizing, anything I would say to him would be entirely confidential' and he would not violate anything I said to him or give my name out. I said I did not know of anybody and consequently I could not give him the names. Pyle denied that anything was said about unions in his conversation with Lask. THE NEW YORK TIMES COMPANY 1113 On or about January 10, 1936, Weinstock told Porter that he had decided to discontinue her services as of January 25, and that in the interim she would be transferred to the pay-roll and typing section of the auditing department. The next day Porter was transferred to that section as a typist, and the girl whom she there replaced took Porter's former position. Porter then worked for the respondent through January 25, 1936, at which time her discharge became effective. Her removal slip, made for the respondent's records on January 27, 1936, gave as the reason for her removal: "Competent and intelligent but otherwise not satisfactory." After the events described above, the employees who had joined the B. S. A. U. discontinued any efforts towards organization, attended no more meetings, and paid no further union dues. Conclusions as to Porter Weinstock testified that he discharged Porter for. two reasons: First, his suspicion that she was a Communist and engaged in. com- munistic activities; second, his conviction that she had not told him the truth. He testified that while he had no interest in whether per- sons employed in non-confidential positions were Communists, he "could not reconcile Communistic activities with the duties of the confidential secretary of the auditor of the New York Times." He testified further that he "would have no confidence in a Communist in a confidential position" because he believed that Communists would have no scruples against divulging confidential information. He stated that Porter could not remain as his secretary because of his suspicion of her communism, but that she probably would have been transferred to a non-confidential position had it not been. for his con- viction that she was being untruthful. It is our opinion, however, as it was that of the Trial Examiner, that Weinstock's testimony lacks credibility. Both Lissemore and Gilbert were employed in positions which were admittedly confidential in nature. Weinstock had as much reason to believe that they were Communists as he had to believe that Porter was a Communist. Yet lie permitted Gilbert to remain in his post for some 2 years longer. Lissemore continued to perform work of a confidential nature through- out 1936 and 1937, and the volume of such work assigned to hr was increased in July 1937 with Weinstock's approval. Similarly, Weinstock had as much basis for believing in the untruthfulness of Gilbert, Lissemore, and Berg as for believing in the untruthfulness of Porter. In fact, Weinstock testified that he concluded that Lisse- more, Gilbert, Berg, and Lask had each lied. Yet he discharged only Porter. 1114 DECISIONS OP NATIONAL LABOR RELATIONS BOARD On the other hand, a hypothesis that Weinstock's true concern was the eradication of incipient unionism explains his failure to remove persons other than. Porter either from confidential posts or from the respondent's employment altogether. After the discharge of Porter and the interrogations of Gilbert, Lissemore, Lask, and Berg, all steps toward organization of the employees in the auditing depart- ment ceased. If such was the intended result, then Weinstock's purposes, having been fulfilled, required no further implementation. Likewise, Weinstock's method of investigation-to ask suspects if they were Communists-was ill adapted to the purpose of discover- ing whether the questioned employees were Communists. But if his purpose was not to ascertain facts but to frighten his employees from taking further organizational action, then interrogation was obviously an apt device. The very fact that union activity ceased lends credence to the testimony that it was the subject of Weinstock's reproaches and search. So too does the coincidence between such activity and Wein- stock's investigation. Weinstock's credibility is also seriously impaired by the contra- dictory nature of his testimony, hereafter discussed, regarding the transfer of Gilbert. Finally, Weinstock's claimed belief in Pingel's supposed revelations concerning communism is beyond our credulity, in view of the circumstances that certain elements in Pingel's story were obviously implausible and that the investigation which Wein- stock felt impelled to make can have served only to disprove Pingel's account. The emphasis allegedly placed on the significance of Porter's claimed untruthfulness presupposes also a lack of sophistication on Weinstock's part which is inconsistent with other parts of his testimony. Thus he testified: I should say that truthfulness is one of the very desirable requirements of an employe in the auditing department, as it is elsewhere, but I am afraid that if all of our employees were judged on such a basis, we would. have a hard time keeping a staff. Truthfulness is a question of degree, and, as a matter of fact, I don't think anybody is one hundred per cent truthful. I think you could write rather a large digest on that subject. As regards the character of Porter's testimony, the Trial Examiner made the following statements in his Intermediate Report: Although Porter admitted at the hearing that she had not told the truth to Weinstock in January 1936 when she denied union membership, nevertheless, those statements were made in re- sponse to an unwarranted inquiry and were prompted by the fear of an undeserved discharge if the truth were known." Untruth- '4 It might also be added that Porter was prompted as well by the fear of an unjust discharge of other employees. THE NEW YORK TIMES COMPANY 1115 fulness in such a circumstance does not necessarily indicate a general lack of veracity. The frankness of Porter's evidence, her excellent memory, and her demeanor on the stand, indicate her sworn testimony to be both truthful and accurate. We accept the Trial Examiner's observation of Porter's demeanor and concur in his other comments concerning her credibility. On the basis of the testimony of Porter, Lissemore and Berg, we find, as did the Trial Examiner, that Pingel was informed of the union group's meetings and actions. We do not credit the contrary testi- mony of. Pingel, obviously a garrulous and emotional person, nor do we credit her testimony that Porter gave her the claimed information concerning communist affiliation and activity. In the other described conflicts between. Porter's testimony and that given by Pingel, we credit Porter's testimony. We also credit Porter's denials of com- munist membership or activity. We believe that Pingel transmitted to Weinstock her knowledge of the union group's action and probably also, through the same confusion of thought which led her to file the communist leaflet tinder "labor miscellaneous," advised him that the members of the group were Communists. We find, as did the Trial Examiner, that Weinstock motivated by a desire to stop employee organization, questioned Porter and Berg on both communism and unionism and caused Finch to question Lissemore and Gilbert similarly and to indicate to them Weinstock's hostility toward unions. We likewise credit the testimony of Lask as opposed to that of Pyle and the testimony of Fischbach as opposed to that of Finch. Upon the entire record in the case we find that the respondent discharged Grace Porter because of her membership and activity in the B. S. A. U. We find that the respondent. thereby discriminated in regard to her hire and tenure of employment, discouraged union membership, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the respondent, through the action.of its supervisory officials in interrogating and coercing Gilbert, Lissemore, Berg, Lask, Porter, and Fischbach with respect to union. activities, at a time critical in employee organization, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. . After her discharge by the respondent Porter was unemployed until the end of May 1936, at which time she became secretary to the head of the technical department of a travel organization. Subsequently, she was transferred to the position of secretary-assistant to the head of the selling department of that organization. For 2 months Porter received a salary of $25 a week from the travel agency, after which she received an increase to $27.50 and, at the end of the year, a 1116 DECISIONS Or NATIONAL LABOR RELATIONS BOARD further increase to $32.50. Porter first testified on January 30, 1939, at which time she was receiving a salary of $37.50. In April 1939, while the hearing was still pending, Porter was put on half time, with a reduction in salary to $22.50: Shortly afterward she was notified of her dismissal,- effective May 26, 1939. Porter wishes to be reinstated to her former position with the respondent and had this desire even before she was put on half time. C. The discharge of Fred Jaeger In February 1920 Fred Jaeger was employed by the respondent as a part-time reporter for the Arrival of Buyers column published in The New York Times. Jaeger also did work on the outside for some time as a cartoonist and until at least as late as 1932 conducted a real estate business. Jaeger engaged in these outside ventures with the knowledge and consent of the respondent. In 1928 Jaeger made arrangements with David H. Joseph, the respondent's city editor, to cover miscellaneous night reportorial assignments on an hourly paid basis. This additional work continued until May 1932, when the respondent dropped all such special assignments as an economy measure. In 1928 or 1929 Jaeger. was put on full time in his work for the Arrival of Buyers column. Jaeger's initial salary was $20 a week. As a result of various pay increases, he was, in November 1929, drawing a weekly wage of $45. In December 1929 the reporters on the Arrival of Buyers column were given additional clerical work and were each awarded an increase in pay of $3 per week. This raise brought Jaeger's salary to $48. in 1.932 Jaeger's salary was reduced to $43.20 by the application of a general 10-per cent pay, cut. It stayed at that figure for the remainder of his employment with the respondent. The Arrival of Buyers column is published every day except Sun- days as part of the business news section of The New York Times. The column lists the names of out-of-town buyers visiting New York City, the name and location of the store represented by each buyer, his field of merchandise, and his headquarters in New York City. These data are obtained by a staff. of five men, of whom three obtain their information by visiting resident buying offices and two procure the names of buyers from hotel registers. From 1920 to October 20, 1936, the hotel men were Edward J. Stewart and Bernard F. Mulligan, while the men covering the resident buying offices were Fred Jaeger and Joseph Waters. James Holland became a reporter on the buying office side in •1928, replacing an employee whose identity is not revealed in the record. For some time prior to October 20, 1936, ill will existed between Jaeger on the one hand and Waters and Stewart on the other. The men covering the resident buying offices are required to call THE NEW YORK TIMES COMPANY 1117 personally at the offices assigned to them, gather the names of :visiting buyers, return to the respondent's offices, type up lists of the buyers' names, merchandise, and so forth, and turn such lists in to Waters. Waters assembles this copy into a master list which is sent to the composing room. Waters usually leaves the office at about 9 p. m., and Stewart is then in charge of copy. From 1933 on, the deadline for submission of such copy to the composing room has been 7:30 p. m.; in prior years the deadline was.8:30 p. m: or 9 p. in. The hotel men make two rounds, reporting to. the office after the first at about 6:15 p. m. and after the second at about 11:30 p. in. Names obtained by the hotel men on their first round are checked with the copy of the office men. The combined copy appears, barring delays for any reason, in the first edition of the respondent's news- paper. The buyers' forms for the first edition are locked up at 10:15 p. in., and the entire edition goes to press at 10:45. Proofs on the buyers'. copy for the first edition come to the business news depart- ment from 8:30 to 9:30 p.. m. Any additional names procured by the hotel men on their second round are added to the Arrival of Buyers column in time for the late city (or third) edition, which goes to press at 1:45 a. in. Since the first edition is primarily' a mailing issue, while the late city edition is that. usually sold on the news stands in mid-town New York, the latter edition is more important than the former so far as the Arrival `of Buyers column is concerned. The business news department maintains a set of loose-leaf books in which are listed the names of buyers and other information of the same character as that appearing in the Arrival of Buyers column. These books are used as reference sources, particularly by the hotel men, who must check many of the names they obtain from the hotel registers. Since December 1929 each of the five men' working on the column has been required to keep four of the books up to date by add- ing new names or making other necessary changes. The men are also, required to retype individual pages as they become too crowded or worn out, and an effort is made to retype the books as a whole once a year. The size of the Arrival of Buyers column and the amount of work it requires vary at different seasons and on different days of the week. January and February, the spring buying season, and July and August, the fall buying season, are ordinarily the busiest months, while the earlier days of the week require more work than the later days. On a heavy day in one of the busy seasons the listing of buyers may occupy five newspaper columns; on a Saturday during a slack season the list may take up one-tenth of a column or less. These variations in the requirements of the work mean that the reporters are very busy on some days and comparatively free on others. Part of the time not employed in obtaining the buyers' names and 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preparing copy is used for work on the file books or on miscellaneous clerical tasks, but this can be done at the convenience of the men themselves. In their unoccupied time the buyers' reporters, like the other men on the respondent's news and editorial staffs, may do as they please. Thus they may converse with other employees, visit in other departments, and engage in various forms of recreation on the respondent's premises. This liberty of action is subject only to the general understanding that employees at leisure must not disturb employees at work. In 1927 Charles F. Hughes became the respondent's business news editor. As such he was head of the business news department and exercised supervision over, among others, the buyers' reporters. In 1931 or 1932 Hughes reprimanded Jaeger for permitting his real estate interests to cause interruptions in his work. In order to impress the criticism, Hughes required Jaeger to make a check on buying offices for a time.16 In 1932 or 1933 Stewart complained to Hughes that- Jaeger was turning in his copy late. Hughes again spoke to Jaeger and this time required him to report at the office at 1 p. in. before starting on his rounds; normally, the men began their rounds between 1:00 and 1:30 p. m. without first coming to the office. This measure stayed in effect for 2 or 3 months. - Beginning with the summer of 1934 Jaeger became very active in the Guild. At that time he took a prominent part in a strike called by the Guild against a publication known as the Staten Island Advance. In the fall of 1934 Jaeger became one of the four persons most active in reorganizing The New York Times Unit of the Guild from a "pseudo-professional organization basis" to a "labor union organization basis" and was elected a member of the council of that unit. Jaeger also became the unit's deputy comptroller and organizer for the respondent's sports department, an alternate delegate to the Representative Assembly of the Guild, and, at a later time, a delegate to the Representative Assembly. Jaeger did editorial work for the unit's Fortnightly News Letter and helped distribute that periodical. In general, Jaeger was one of the three or four most energetic and prominent members of the Guild in the respondent's employ and was recognized as such by his fellow employees and by the respondent's officials. Jaeger engaged in a large portion of his activity on behalf of the Guild during working hours and on the respondent's premises. Thus he visited the city room possibly once an evening and the sports department about 4 times a week, almost always on union business, 15 Our findings in this paragraph are based on Hughes' testimony. Jaeger denied that he was ever re- proved for having his real estate activities interfere with his work , but did testify that he was once disciplined by Hughes. Since Jaeger did not recall the delinquencies which occasioned the discipline or the nature of the discipline itself, we conclude that Hughes' circumstantial testimony represents a better recollection of these events than Jaeger's. THE NEW YORK TIMES COMPANY 1119 and conferred from time to time on such matters with employees who came to see him in the business news department. As we have seen, conduct of this sort was permissible so long as it did not interfere either with Jaeger's own work or with the work of other employees. The respondent contends that Jaeger's actions transgressed both of these limitations. Hughes testified that from the beginning of 1935 until October 1936 he found it necessary to speak to Jaeger a dozen or more times about the lateness of his copy or about his neglect of his file books, and that on these occasions he made it clear to Jaeger that there was no objection to Jaeger's carrying on union activities if Jaeger did his work on time. Hughes also testified that he was informed of Jaeger's lateness in submitting copy by Stewart and Waters, and that these reports were confirmed by his personal observations. He testified that Jaeger would return to the office from his rounds at about 5:45 p. in. whereas the other reporters on buying offices would return between 5:00 and 5:15 p. m.; and that Jaeger would then constantly interrupt the preparation of his lists by leaving the office. Hughes testified that on half a dozen occasions during this period the repre- sentative of a buying office telephoned the business news department at about 5 p. in. and said that Jaeger had not yet called on it. Stewart testified that Jaeger would frequently turn in copy before the dead- line, disappear from the office, then return and type up additional copy, which he sometimes sent direct to the composing room. Stewart also testified that Jaeger would make additions, running as high as half a column, to the proofs. Stewart further testified that on 25 or 30 occasions between the fall of 1934 and October 20, 1936, he found, after returning from his late hotel round at 11:30 p. in., some of Jaeger's copy in his (Stewart's) basket. Jaeger testified that during busy seasons he got his copy in at 7:30 or 8:00 p. in. and occasionally as late as 8:30 p. in. He testified that he was often delayed, by the necessity of waiting at some of the buying offices which did not have their lists available until after 5:30. Louis Bistrong, Jaeger's vacation substitute, contradicted Jaeger as to the number of buying offices which delayed their lists and also testified that it was not necessary to wait for late lists because the buying offices would telephone in lists which had not been ready when the reporter called. Jaeger also testified that Hughes com- plained to him of late copy only once or twice; that he brought copy to the composing room on one or two occasions only; that he added names to the proofs very seldom; that these additions were few in number; and that he kept his file books in "pretty good shape." At the hearing evidence was introduced in the nature of a sampling of the Arrival of Buyers column as it appeared in the first and third editions of various issues of The New York Times. Counsel for the 1120 DECISION'S OF NATIONAL LABOR RELATIONS BOARD Board apparently contended that this evidence indicated that other reporters beside Jaeger submitted late copy, that late copy did not, as claimed by the respondent, result in numerous duplications appear- ing in the column, and that a general disinterest in the column as it appeared in the first edition was shown by. carelessness and omissions. Counsel for the respondent contended that the sampling showed Jaeger's frequent failure to have his copy ready in time for the first edition. The sampling can be so interpreted as to lend support to either view; we consider it to be lacking in any serious evidentiary weight because of its fragmentary character and the indefiniteness arising from the lack of any evaluation and explanation of various relevant factors. On several occasions in 1.935 or 1.936 Curtis, assistant sports editor, complained to Hughes and James that Jaeger was disturbing the men iil the sports department. Curtis himself died before the hearing, and the only employee of the sports department who testified in substan- tiation of these complaints was James Robbins, a yachting reporter. Robbins testified, however, to only two conversations begun by Jaeger while Robbins was' at his typewriter, of which the first occupied 30 seconds to a minute and the second 2 or 3 minutes. It is clear from the record that these insignificant interruptions were within the normal practices of the respondent's employees. Raymond H. McCaw, the respondent's night managing editor, com- plained to James on several occasions in the same period that Jaeger was interfering with men working in the city room. McCaw testified to the same effect. However, he named William L. Laurence, Her- man H. Dinsmore, and an employee named Freeman, as the only persons in the city room whom he saw Jaeger visit. Freeman did not testify, but Laurence and Dinsmore both testified that Jaeger never interfered with their work. During -1935 and 1936 Hughes frequently complained to James con- cerning Jaeger. James, however, told Hughes that he wished to avoid creating any issue with the Guild. James testified to like effect in explanation of the respondent's delay in taking action against an employee against whom delinquencies were charged. James and Hughes both spoke at various times to Laurence, chairman of The New York Times Unit of the Guild,, about their alleged difficulties with Jaeger. As a result, Laurence on several occasions cautioned Jaeger not to let his union activities interfere with his own work or with that of other employees. On the record as a whole we are of the opinion that Jaeger did in fact submit late copy with unwarranted frequency and that he did sometimes bring to the composing room, at other times add to the proofs, material he.should have earlier turned in to Waters. We are also of the opinion that Jaeger was, as Hughes testified,, far behind in THE NEW YORK TIMES COMPANY 1121 work on his file books in November 1935; we arrive at this belief in part because Hughes' testimony is substantiated by a contemporane- ous memorandum. On the other hand, we are of the opinion that Jaeger did not disturb employees in the sports and city departments beyond permissible limitations and that he did keep his file books reasonably current during 1936. We have in the foregoing surveyed certain general complaints of Jaeger's work during 1935 and 1936. We now turn to a consideration of specific episodes which occurred in those years. In the spring of 1935 Stewart and Waters complained to Hughes that Jaeger was not meeting the deadline, and Curtis told Hughes that Jaeger was disturbing men at work in the sports department.. Hughes himself observed that Jaeger was returning late to the office from his rounds and was interrupting the preparation of his lists. Hughes also found a 2-week accumulation of material which Jaeger had not yet posted in the file books. Hughes then spoke to Jaeger and said that he noticed that Jaeger was engaging in outside activities. Jaeger expressed surprise at the comment and pointed out that he had always done outside work, particularly in connection with his real estate business. Nevertheless,. Hughes ordered Jaeger to report each day at the office at 1:00 p.m. before going out to get his news-a practice not normally required-and, as a disciplinary measure, to conduct a check of the smaller buying offices. Hughes also directed Jaeger to give his complete attention to his work until 9 o'clock at night and com- mented that these measures would stop Jaeger's "Guild activities." lB These penalties continued in existence for about 6 weeks, at the end of which time Jaeger said to Hughes, "I have learned my lesson." In July 1935 Stewart again. complained to Hughes of Jaeger's late copy. Hughes thereupon questioned Jaeger on the subject. Jaeger said that he had more work to do than the other reporters and marked in the newspaper's current issue the names of the buyers which he had submitted; these names accounted for approximately half of the entire list." Jaeger also said that he employed a more useful system of listing than the other men. Hughes testified that he was skeptical of Jaeger's explanation. Nevertheless, he authorized Jaeger to turn 2 of his offices over to Stewart, to be covered by the latter on Mondays and Tuesdays, the 2 busy days of the week. Jaeger than^put a note in Stewart's mail box to the effect that Stewart should take 5 of IA Jaeger testified that these restrictions were imposed in August 1935 . We accept Hughes' testimony as to the chronology of this and certain subsequent events, as did the Trial Examiner . Our findings as to Hughes' remark concerning stopping Jaeger 's union activities is based on the testimony of Jaeger. Hughes denied making such a remark, but owing to the confusion as to the time of various conversations , caused by the discrepancies between his testimony and that given by Jaeger , Hughes' denial related to a subse- quent conversation. We assume that Hughes ' denial was equally applicable to the conversation now dis- cussed, but follow the findings of the Trial Examiner both as to the making of the remark and as to the conversation with which it was associated. 17 Jaeger consistently had the most buyers listed . On the other hand , the buying offices he covered were within a smaller area, and hence more quickly visited, than those assigned to the other reporters. 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jaeger's offices; among the offices added by Jaeger on his own initiative were 2 of the largest on his list. On the following Monday, Stewart received this note, protested to Hughes, and complained bitterly against Jaeger. Stewart said that Bistrong, when substituting for Jaeger, was able to get his copy in not later than 7:15 p. m.; that Jaeger continued to get late copy to the composing room and to make insertions on proofs ; that on the previous Monday night he had found at 11:30 p. in. 2 or 3 sticks of Jaeger's buyer's copy that should have gone up to the composing room before 7:30 p. m.; and that if Jaeger "would cut out his Guild activities during working hours, the hotel men would not have to go out and do his work." Hughes told Stewart to cover all 5 offices on that day and said he would later return 3 of them to Jaeger. That evening Hughes reprimanded Jaeger for increasing the number of offices to be turned over to Stewart and for the delinquencies which Stewart had alleged. After a discussion of hours of work, Hughes ordered Jaeger to adhere to a strict schedule of 1.:00 to 9:00 p. m.; not to converse during working hours with persons not employed in the business news department, and not to leave the confines of the department, except to go to the toilet, without special permission.18 These instructions had the effect of restricting Jaeger's activities on behalf of the Guild almost to the point of utter prevention. A few weeks later Hughes changed Jaeger's hours at the latter's request so as to allow Jaeger one-half hour, for supper. Thereafter Jaeger worked from 1:00 p. in. to 9:30 p. in. Within a week or two Hughes told Jaeger that he noticed that Jaeger was again carrying on his activities in the sports department. Jaeger said that he was carrying on legitimate union activities during his supper period, but Hughes nevertheless ordered him to stay out of the sports depart- ment.19 Jaeger did not obey these instructions. In August 1935 the Guild was preparing for negotiations with the respondent concerning numerous items, including that of wages. The latter point included in particular the question of the general 10-per cent wage cut and the discontinuance of special assignments . Employ- ees who had lost the special assignments had also been subjected to the 10-per cent pay cut, with the result that their total compensation had been reduced more than 10 per cent. The Guild felt that this situation was unjust and decided to bring it to the management's attention. The Guild's negotiators conferred with Jaeger, who was one of the employees subjected to the claimed unfairness , and acquired an exaggerated notion of the amount that he had earned on special 18 Jaeger testified that Hughes also said : "The Times' management would like to see the Guild start some- thing . The Times ' management is just waiting for the opportunity to wipe out the God damned Guild." Hughes denied making these statements . We credit the denial , as did the Trial Examiner. 19 Hughes did not recall any reference to a supper period or "legitimate union activities " in a conversation with Jaeger. Our findings, based on Jaeger's testimony, follow those made by the Trial Examiner. THE NEW YORK TIMES COMPANY 1123 assignment work.20 Accordingly, they decided to present Jaeger's case to the respondent as a special illustration of their thesis. Laurence, chairman of The New York Times Unit of the Guild, spoke to Hughes about Jaeger's case, stating that Jaeger's total income from his salary and special remuneration had in 1, week gone as high as $84, and that as a result of the wage cut and the stopping of special assignments Jaeger had suffered a great injustice. Sub- sequently, the Guild presented the issue to Sulzberger, claiming that Jaeger had averaged from $65 to $70 a week and had received $84 in 1 week. Sulzberger asked James to investigate. In' the mean- time, Hughes had checked with the editorial auditor and had found that Jaeger's extra earnings had averaged only approximately $9 a week, which, with his regular salary, made his total average income about $57 a week. He had also found that while Jaeger had received on several occasions checks for $84, these had lumped the earnings from special assignments for several weeks. Hughes gave this data to James, who in turn transmitted the information to Laurence. Hughes also spoke to Laurence directly, and the latter indicated his perturbation over the Guild's error. Sometime later in August 1935 Hughes called Jaeger to his desk and began a conversation by recalling to Jaeger the friendly terms which had existed between them some years back. Jaeger inter- rupted and told Hughes to "get to the point." This remark angered Hughes, who then "read the riot act" to Jaeger. Hughes told Jaeger he would have "to cut out his nonsense," do his work in the same fashion as the other men, and eliminate "the organization activities that interfered with his work." Hughes added that Jaeger was not doing the Guild any good; that Jaeger had wiped out a possible benefit for other employees by giving the Guild "a bum steer" on the wage negotiations; and that Jaeger had been made out "a God damn liar." Hughes also chided Jaeger for going over Hughes' head in placing the question of his salary adjustment in the hands of the Guild.21 Early in November 1935 Hughes checked on the buyers' file books and found that Jaeger was far behind on the four books assigned to him. On the evening of Friday, November 15, 1935, The New York Times Unit of the Guild distributed its first issue of the Fortnightly News Letter. The mimeographed copies of this publication were folded in and distributed from the business news department by Jaeger and union members from other departments. This first bulletin carried a number of items concerning Jaeger's activity in the 20 There is some confusion in the record as to whether Jaeger or the negotiators or both were responsible for the misapprehension . The allocation of the fault for the mistake is, however, not material. 21 Hughes testified that he did not recall making any statement to this effect. Our conclusion. that it was made is based on the testimony of Jaeger and the findings of the Trial Examiner. 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Guild, including a report of his election as a delegate to the Guild's Representative Assembly.' Jaeger testified that about 10 minutes after 9:00 that evening his wife and son came to the respondent's outer office; that Hughes was then away from the office; and that he went to the outer office, stayed 10 or 15 minutes, and then returned to his desk. Hughes testified that he and his wife went out for dinner at 7:00 p. m.; that Jaeger was not then in the office; and that on his way out he saw Mrs. Jaeger and her son in the outer office. Hughes further testified that he returned. to the business news department at 8:00 p. in. and left for the city room at 9:00 p. m.; that Jaeger was absent in the interval; and that he returned from the city room at about 9:15 p. in., and found .Jaeger at work. We do not find it necessary to resolve the conflicting elements or implications of this testimony. When Hughes saw Jaeger, he asked Jaeger where he had been. Jaeger testified that he explained to Hughes that he had been to see his .wife and son for a few minutes. Hughes testified that Jaeger said he had been giving news leads to James and to Cohn, the photograph editor. Whichever the correct version-and we do not find it neces- sary to resolve the conflict-both men became angry. A heated altercation ensued, in the course of which Jaeger said that Hughes was only a "foreman" and could not discharge him. On Monday, November 18, 1935, Hughes addressed a memorandum to James in which he restated an oral recommendation that Jaeger be removed from the business news department. The memorandum summarized, Hughes' views of Jaeger's alleged delinquencies and com- plained, with supporting details, that Jaeger failed to get his copy in promptly, neglected his file books, gave trivial and false excuses for ignoring instructions, and was guilty of insubordination. It stated that Jaeger's work. was interrupted by his activities for the Guild and. concluded: I may add that this is likely to be a "martyr" case for the Guild but it looks very weak indeed. In any transfer I would advise a job keeping him strictly to a desk on regular routine. Otherwise, The Times might as well pay salary to a paid organizer of the Guild. James discussed Hughes' recommendation with Sulzberger, who instructed James to avoid creating an issue with the Guild over Jaeger. Some time later Sulzberger called in Hughes, and told him in the words of Sulzberger's testimony, "as distasteful as Mr. Jaeger might be to him personally, I did not want him to take any action with respect to him because I did not want an issue." James informed Hughes that the request for Jaeger's transfer was denied. However, under insistence from Hughes, James agreed that Hughes might place Jaeger on probation for 30 days, and that Hughes THE NEW YORK TIMES COMPANY 1125 might drop Jaeger from the department if Jaeger 's work . during that; period was not satisfactory. Hughes notified Jaeger of his probationary status. The next day. Jaeger apologized to Hughes for some of the statements lie had made on the previous Friday night. As a result of being placed on probation , Jaeger dropped all Guild activity . ' His work and conduct during the probationary period was satisfactory to Hughes. At the end of December 1935 or in January 1936 , Jaeger asked Hughes what was the result of the probation . Hughes replied,.that Jaeger "had done very nicely," that his conduct had been perfectly satisfactory inasmuch as he had. stopped his outside interests , and that there would be no further trouble if he kept up " the good .work." Hughes also told Jaeger to " go ahead as before, " a statement which Jaeger understood to mean that the special restrictions were lifted.. Although Jaeger did not thereafter consider himself subject to restric- tions, nevertheless , he still refrained from engaging in union activity until February or March 1936. At that time Jaeger resumed his work for the Guild in the sports. department, at the request of Laurence . Shortly thereafter Jaeger spoke to James Robbins on two different occasions while Robbins was at work in the sports department , in an effort to interest the latter in, joining the Guild. Although, as we have already - indicated, these episodes were inconsequential in nature , Robbins spoke to Hughes about Jaeger's "pestering him." Curtis , the assistant sports editor, who had been informed by Robbins of the first conversation and was nearby when the second occurred , also complained to Hughes that J,neger was annoying his men. Jaeger testified : " During this period I was very careful and watched my step in every way not to give offense , only carrying on this work in the sports department strictly on my own time, and when Mr. Hughes was not around ." We accept the correctness of this „testi- mony, as did the Trial Examiner . However, after Hughes received the complaints from Robbins and Curtis, he ordered Jaeger to. stay out of the sports department . Jaeger replied that he was carrying on- legal union activities on his own time and intended to continue to:do so. Jaeger testified that the restrictions on his movements and rela Lions with others were then reimposed . Hughes testified : " These restrictions were never removed. They were never imposed beyond attending to his work." In either case , the effect was the same: Jaeger thereafter regarded the restrictions as being again in force. In March or April 1936 Hughes instituted a particular regulation for Jaeger, allegedly because Jaeger's work in maintaining the file books was falling behind , whereby Jaeger was required to put in. Hughes' desk at the end of each day the pages he had prepared for 323429-42-72 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the file books during that day. Hughes found that on some days Jaeger would turn in 2 pages; on other days, when Jaeger was "jacked up a bit," his production would go up to 25 or 30 pages. However, such variations were not unusual; the reporters did this work whenever they thought best, and the amount of time they had free from their non-clerical work was subject to considerable fluctuations. During the spring and early summer of 1936, Hughes 'received further complaints from Stewart and Waters that Jaeger was turning in his copy later than the deadline of 7:30 p. in. For typographical reasons it was particularly important at this time that buyers' copy should not be delayed in reaching the composing room. Also about this time Stewart and Mulligan complained to Hughes that Jaeger was using ditto marks in the file books, a system which led to confusion in entries because interpolations were constantly made. Bistrong, then substituting for Waters, told Hughes that Jaeger was refusing to follow the prescribed course of listing cities in alphabetical order under the names of the buying offices. In September 1936 Stewart complained to Hughes that Jaeger and other employees active in the distribution of the Guild bulletin were con- ferring in the business news office at night, practically taking it over, and. disturbing the hotel men at work on copy for the late edition. Hughes warned Jaeger that he and his associates would have to be more quiet. In October 1936 Hughes stopped distribution of the bulletin from the business news office allegedly because of Jaeger's disregard of the warning. On the night of October 19, 1936, Stewart learned that Jaeger had brought to the composing room at about 10:30 p. in. a, half column of buyers' copy. The next afternoon Stewart informed Hughes of his discovery and said that this represented a practice of Jaeger's which had been going on for about 2 years and should be stopped. `In the evening of the same day Jaeger came into the office at about 8 o'clock. Hughes asked him where he had been and Jaeger said that he had been at supper. After a brief discussion as to the length of time Jaeger had taken for supper, 22 Hughes told him, "You are through." Jaeger said: "Do you mean on the Times?" Hughes replied: "You are through so far as this department is concerned. Report to Mr. James in the morning." Jaeger asked for the reasons, and Hughes said there were a number of reasons: "his copy had been late; he had sent up a half column of proof to the composing room; his production on the file books was very meager; on the previous Friday he had been away from his desk more than half the time." The two men then became involved in an argument which culminated 79 Hughes testified that when Jaeger said he had been at supper, Hughes asked : "For 2 hours?", to which Jaeger responded : "Yes, what are you going to do about it?" 'Jaeger denied making this remark . we adopt the findings of the Trial Examiner that Jaeger did not make this statement. THE NEW YORK TIMES COMPANY 1127 in Hughes' summoning the door attendant to escort Jaeger from the room. Jaeger then left. On the next morning James told Sulzberger of what had occurred. Sulzberger testified that lie was very angry about the incident because of Hughes' disregard of instructions, but that he realized that it would be impossible for Jaeger to remain in Hughes' department. James and Sulzberger discussed transferring Jaeger. James said that there was no room for Jaeger on the city, Wall Street, or sports staffs. .He pointed out that Jaeger had been working in the wholesale garment district and said: "Maybe we could get a job for him in the advertising department just to avoid firing him out-and-out." Sulzberger approved of this suggestion and said he would arrange the matter with Colonel Julius Ochs Adler, the respondent's vice president and general manager. Sulzberger subsequently asked Adler to accept this plan in order to avoid an issue with the Guild. Adler objected at first but finally agreed to put Jaeger on soliciting advertisements, preferably for the business page. Adler then instructed Charles C. Lane, in charge of the advertising and business departments, and Don Bridge, the ad- vertising director, of the respondent's intention to transfer Jaeger. Bridge told Adler that he would rather not take Jaeger; he testified that his reluctance was due to his understanding that-Jaeger was a troublemaker. Lane told Adler that he doubted that Jaeger was fitted by his previous work to sell advertising. At that time, Louis S. Berger, manager of the display classified division of the advertising department, was anxious to employ a sales- man to solicit advertising for the business page.' He had already been authorized to employ such a man and was then in the process of in- terviewing candidates for the job. Bridge told Berger that he did not need to interview any more persons; that Jaeger, who had been on the staff of the business news department and had some knowledge of the business page, was to be transferred into advertising; and that Berger could try Jaeger in the business page opening. In the afternoon of October 21, 1936, Jaeger-conferred with James and David H. Joseph, the respondent's city editor. Jaeger. criticized Hughes severely. James said that the question had become one of keeping either Hughes or Jaeger in the business news department and that Hughes was the more valuable employee. Jaeger asked to be transferred to the city staff and suggested that the reporter he would there displace should be assigned to the business news department to observe Hughes' conduct. Joseph indignantly rejected this suggestion. James told Jaeger that he was being transferred to the advertising department to solicit advertisements from wholesale clothing manu- facturers, a field of advertising which the respondent was attempting to reestablish as a source of revenue. Jaeger protested that he was 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not qualified for the work, that the field was difficult , and that his supposed contacts in the garment area would not be useful. He asked what would happen if he was unable to sell such advertising. "James said that was not a good attitude and that this bridge would be ,crossed when they came to it: Soon after this conversation Jaeger had a brief conference with Sulzberger and James. Sulzberger told Jaeger that "in a large busi- ness organization as ours was , the executives had to be supported" and that Jaeger would ' be moved to the advertising department. Jaeger asked what would happen if he did not "make good" there. Sulzberger assured him that "being moved to the business office did not mean- the skids were under him, and that he would be given a per- fectly fair trial, but that of course we could not give him any guarantee of employment ." Jaeger testified that Sulzberger said that if Jaeger did not succeed in the advertising department he would then be transferred to the news staff. Sulzberger denied making any such promise. We credit this denial but are of the opinion that Jaeger honestly, though erroneously ., interpreted some of Sulzberger 's assur- ances as equivalent to such a guarantee. Soon after this conversation with Sulzberger , Jaeger was introduced to his new work, the transfer becoming formally effective on October 26, 1936. Bistrong took the position vacated by Jaeger. By virtue of his transfer to a commercial department , Jaeger was unable to remain a member of the Guild under the then existing eligibility rules of that organization. For 3 weeks after his transfer to the display classified division, Jaeger was given training for his new work. Thereafter , he solicited wholesale business page advertising of women's apparel and allied merchandise . The classification, formerly a substantial one, had for some time past been a poor source of linage, and the obtaining of business in that field was admittedly a very difficult task. Two other solicitors also, devoted part of their time to the classification, but until February 1937 Jaeger was the only salesman to allot to it the principal part of his time. On a few special occasions , however, Jaeger was assigned for short periods to assist in soliciting advertising for other- classifications. Jaeger worked at his new job with great diligence , but was unable to obtain a satisfactory volulne of business . During the period of approximately 7% months in which he solicited advertising , Jaeger obtained a total of $645.09 in advertising. During the same period his salary remained $43 .20 a week, and he also drew about $300 extra 'from bonuses distributed among the employees of the display classi- fied division . In fact, Jaeger was transferred to that division just in time to become eligible for a bonus of $120 , paid to him in December 1936.' THE NEW YORK TIMES. COMPANY 1129, On February 4, 1937, Berger addressed it memorandum. -to Don Bridge, the respondent's advertising director. The_.memorandum read: Mr. Jaeger came to this department October 23, 1936!- He- was given preliminary training until November 9. After that he was sent out with other salesmen, or on his own. He brought in no orders in November. In. December, he brought in a total of 188 lines. In January, no. orders. In other words, during the last 12 weeks, he has brought' ,in business equivalent to about 3 of his salary. This would not be. very serious if I felt that Jaeger were making progress so -that eventually he might be a good sales representative. But that. is .not likely. While he has gone whole-heartedly into the busi- ness of trying to learn to be a salesman, has cooperated fully, has given no possible cause for complaint about his actions and atti- tude towards his department head or fellow-salesmen, he lacks the instinct, personality, quick-wit and resourcefulness that must be a prerequisite for real sales success. I believe now that we can never make an advertising man out of him. We are not only marking time, but wasting it by continuing to keep Mr. Jaeger on the job. The attention given to him might be better spent on other members of the staff. . ' , In fairness to Mr. Jaeger, then, and to The New York•Times and to this department, some other- disposition of his service's' should be made. If we want to continue to keep him, I think- we ought to assign him to some other kind of work, perhaps in the Circulation Department. I should like to go ahead with the hiring of a Business Page representative who can do the job that. I feel needs to be done. On February 5, 1937, Bridge sent to Adler a copy of Berg'er's' recommendation, together with a covering memorandum of his own endorsing Berger's analysis. Adler replied to Bridge on February 8, 1937, as follows: If, in your opinion, the Display Classified Department requires an additional staff member for the Business Page, please arrange, to employ someone. This is not to be contingent, in any way., upon the release or transfer of Mr. Jaeger-from these duties. I do not consider that three months' is an adequate test, in accordance with our assurance to Mr. Jaeger.. I prefer not, to have the matter renewed until he has had a full six months' trial. As a result of the stand taken by Adler, the respondent- hired.. Philip Kaplon on February 23, 1937, to solicit advertising for-'the, business page. Kaplon, a salesman of long and varied experience,? was more successful than Jaeger; nevertheless, his production was, 1130 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD considered poor, and he was discharged for "lack of productiveness" on September 30, 1937. On April 15, 1937, Jaeger and Leonard H. Goldsmith, another advertising solicitor in the display classified division, agreed that since the Supreme Court of the United States had 3 days earlier upheld the constitutionality of the Act, there was a good opportunity to form a union for employees of the respondent's commercial departments. On the same day they communicated this idea to Jane Schwartz, Leo Collins, and Land, all employed in the display classified division, and Climenko, employed in the national advertising division of the advertising department. Jaeger and Goldsmith also conferred briefly with Jonathan Eddy, executive vice president of the Guild. On the evening of April 16, 1937, Goldsmith, Schwartz, Land, Donnet, and probably another employee named Blair, met at Climenko's house. They discussed organizing and decided to meet with representatives of the Guild and of the B. S. A. U. On April 19, 1937, Jaeger, Goldsmith, Schwartz, Blair, Climenko, and either.Land or Donnet met in the offices of the Guild with repre- sentatives of that organization and a. representative of the B. S. A. U. It was decided to establish an independent labor organization, spon- sored jointly by the Guild and the B. S. A. U., for commercial em- ployees of newspapers in New York City. On April 21, 1937, 17 or 18 of the respondent's employees met at the Times Square Hotel, selected for themselves the name of "News- paper Office Guild of New York," and made plans to distribute leaflets for a mass meeting about a week later. This meeting was held about May 1, 1937-, in the Lincoln Hotel. It was attended by 30 or 40 employees from various New York newspapers who elected temporary officers; the latter thereafter served until the dissolution of the Office Guild. On May 17, 1937, a second mass meeting of the Office Guild, held at the Hotel Astor, was attended by about 1000 persons. Units corresponding to various newspapers were 'set up in the Office Guild, The New York Times Unit being established early in May 1937. At the end of May or beginning of June 1937, the Office Guild adopted a resolution urging the American Newspaper Guild to broaden its eligibility requirements so as to accept for membership newspaper employees from departments other than news and editorial departments. Later in June 1937 the American Newspaper Guild voted in convention to extend its jurisdiction to employees in com- mercial and allied departments of newspapers, wire services, and press associations. A few days afterward the Office Guild adopted a resolution to merge with or seek membership in the Guild and to disestablish the Office Guild. Within 2 or 3 days the Guild opened its membership rolls to members. of the Office Guild... Beginning THE NEW YORK TIMES COMPANY 1131 July 10, 1937, a referendum was held by the American Newspaper Guild on its convention's decision. The referendum was completed by late summer or early fall of 1937 and resulted in an affirmation of the convention action. In addition to being one of the originators of the Office Guild, Jaeger attended its organizational meetings, helped compose leaflets distributed before the mass meeting at the Hotel Astor, nominated the successful candidates for its president and vice president, and became chairman of the Office Guild's organizational and educational committee and editor of its official publication. The respondent knew generally of Jaeger's activity and prominence in the Office Guild. In fact, Berger and James knew that Jaeger was organizing the office workers almost simultaneously with his first efforts in that direction. About April 21, 1937, Berger told Jaeger that his. work was un- satisfactory, inasmuch as he was not bringing in any substantial amount of advertising. When Jaeger explained that the type of advertising was difficult to sell, Berger told him to "go out and see what you can bring in." On May 22, 1937, Berger compiled Jaeger's attendance record; he testified that he did so because approximately 6 months had elapsed since Jaeger had been in the display classified department. At this time also he called to the attention of Bridge the lack of improvement in Jaeger's sales record, spoke of the number of Jaeger's latenesses, and again recommended Jaeger's release. This recommendation, as well as several others to the same effect made by Berger between February and June 15, 1937, was not approved. On May 21, 1937, Richard M. McDowell, a salesman in the display classified. division, compiled for Berger, at the latter's request, a report of the advertising linage procured by Jaeger and Kaplon, respectively. A few days later Berger told Jaeger that he noticed that Jaeger's linage had not improved and asked Jaeger if he kept a. record of his linage. Jaeger said he did. not, whereupon Berger suggested that he keep a record similar to that kept by another salesman. On the morning of Monday, June 1, 1937, Jaeger went to solicit business without first calling at the office. The salesmen were per- mitted to make direct calls in this fashion, but were supposed to give advance notice of their intentions to Berger or to Lillian Meerloo, his secretary. Jaeger thought that he had left a note for Meerloo on Friday, May 29-the preceding working day because of the interpo- sition of Decoration Day and the week end-apprising her of his plans. He had, however, not done so. While still away from the office on the morning of June 1, Jaeger began to entertain doubts as to the accuracy of his recollection and finally telephoned Meerloo. When !1 132 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD Jaeger returned to the office, Berger reprimanded him for his failure to notify the office in advance. Jaeger explained the situation, and Berger said, "That could happen to anybody, but the powers that be are on my neck and I have got to make a report." 2. Either at this time or, a few days -later Berger ordered Jaeger not to make early calls before arriving at the office unless he first obtained specific approval from Berger in advance: This oral instruction was later confirmed by a memorandum written by Berger to Jaeger on June 7, 1937. Berger testified that, he instituted this requirement because he had 'observed that Jaeger "was going out into the field much too often," and he did' not see 'any reason for Jaeger's "frequently going to busi- ness' before he reported to the office." In view of the nature of Ber- 'ger's testimony on other matters, subsequently discussed, and of certain of his actions which will also be later reviewed, we do not accept this explanation as being in accord with the facts or sincerely made. Also in the first week of June 1937, Berger ordered Jaeger to submit each evening before leaving the office reports of the calls he had made that day on prospective advertisers; all the salesmen made reports on 'calls, but the requirement of daily submission was limited to Jaeger, even' though his reports had been submitted with reasonable promptness.24 On the morning of June 8, 1937, Jaeger was delayed in arriving in New York City from his home in Dobbs Ferry, New York, because of a flat tire on his automobile. When he reached the city he telephoned the respondent's office and told Donnet-Berger and Meerloo were at the time out of the office-that he was going directly to an appoint- ment. ' 'Donnet wrote a note to Meerloo giving the substance of Jaeger's' call. Berger then sent Donnet's note to Bridge with a memo- randum of his own, in which he-mentioned that he had written Jaeger on the previous day not to make calls before arriving at the office without advance approval. When Jaeger arrived at the office later-in the day, Berger admon- ished him for having gone to his appointment directly without per- mission and told him to get a more reliable mode of transportation. Berger also said that "It was all right" with him, but that "the powers that be" were watching every move that Jaeger made and that Jaeger should be very careful in the future.25 On June 15 Jaeger again had a flat tire. This time he arrived in New York City later than before, telephoned to the office at about 9:25 a. m.; and arrived at work at about 10:20 a. m. The working 23 Berger denied making this statement, which was testified to by Jaeger. We credit Jaeger's testimony. 24 Berger denied making any special requirement regarding Jaeger's reports and testified that Jaeger's reports "were in fairly promptly by comparison with some of the others." We credit Jaeger's testimony that the requirement was in fact imposed. 26 Berger denied making these latter statements, which were testified to by Jaeger. We credit Jaeger's testimony in this respect. THE NEW YORK TIMES COMPANY 1133 day began at 9 a. m.' After Jaeger had telephoned, Berger went to Bridge and told him of Jaeger's phone call. Berger also complained to Bridge of Jaeger's latenesses and of Jaeger's having gone directly to make a call on June 8 in violation of instructions. He told Bridge that Jaeger did not produce much business and that "the least we could do was to expect a man who was not producing a great deal, to come in on time and obey routine." Berger then renewed his recom- mendation that Jaeger be discharged. Bridge said he wished to with- hold decision and asked Berger to supply a memorandum on the subject. Berger then addressed a memorandum to Bridge, as follows: Mr. Fred Jaeger came to this department on October 23, 1936. His record since then has been very bad. He has produced very little business, so little that I am sure it does not justify any hope that he will become a useful salesman on the force. The record shows that he brought in less than one-third of the amount we paid him in salary. That is bad enough, but to make matters worse his attendance is the worst in the department. He has been absent 22 days. He has been late .40 times, in spite of several reminders that we expect him to report at 9 o'clock. On occasion, Mr. Jaeger would report to Miss Meerloo that he was going to make a call the first thing the next morning before coming into the office. When that became too frequent, about two weeks ago, I told him I did not wish him to do that any more unless he got specific approval from me in advance. The next day, he telephoned; Miss Donnet received the call, reporting that. Mr. Jaeger said he was caught "with a couple of flat tires," and as he had a call to make on Mr. William Ewart on. Franklin Street, lie would make the call first. I admonished him for it that evening. Since then, he was late on June 9; he was late yesterday; this morning, he telephoned to Miss Meerloo at 9:30 to say he had car trouble, and that he was then near the subway station at 238th Street and would come in by subway. He arrived at 10:20. I think Mr. Jaeger has had ample warning and I shall therefore, with your approval, dismiss him when he returns to the office tonight. He is scheduled to go on vacation the last two weeks in. August. I propose to give him his vacation effective tomorrow, and tell hire that he need not return. After Bridge received this memorandum lie spoke to Adler in sup- port of Berger's recommendation to release Jaeger. Adler approved the recommendation, and Bridge then notified Berger to discharge Jaeger. Berger told McDowell he was planning to do so and asked him to be present at the conversation. Berger also instructed Meerloo 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to listen to what.was said. Berger then called Jaeger to his desk and notified him of his discharge. Jaeger asked the reasons, and Berger said they were non-productivity, lack of effort, and repeated lateness. Jaeger attempted to justify himself on all three grounds. Jaeger then saw Bridge and repeated his contentions, but to no avail. On June 17, 1937, Jaeger saw Sulzberger and Lane. Sulzberger referred to Jaeger's lack of production. Jaeger replied that he had been working hard, but Sulzberger questioned this statement because of the number of Jaeger's latenesses . Jaeger said that he had not understood that lateness was regarded seriously, that he had worked after hours, that Berger had referred to his tardinesses jocularly only, and that Berger had expressed. unconcern as to the actions of the salesmen provided they brought in business. After some further dis- cussion, Sulzberger said that he would investigate the questions Jaeger had raised and that future action would depend on the outcome of the investigation. Jaeger then left. Sulzberger then asked Lane "to make certain that Berger and not Jaeger was correct, and that Jaeger had been misstating the case when he told of the manner in which he had been warned with respect to his lateness, etc., etc." 26 Sulzberger also told Lane that "if he was satisfied that Mr. Berger was correct, there was no reason whatsoever for not proceeding with Mr. Jaeger's dismissal." Lane's investigation consisted of asking Bridge whether the latter thought there had been any injustice and of telling Berger that "if he had any doubt in his mind as to the justice of dismissing Mr. Jaeger on the basis of his violations of office rules, I wanted him to tell me so frankly because it might be very embarrassing if he had any doubts and they did not appear until later." 27 Berger said that he thought Jaeger's discharge was justified and repeated the various charges he had made to Bridge. Lane directed Berger to state his position in writing. Berger did so in a memorandum to Lane dated June 17, 1937, of which Lane sent a copy to Sulzberger. This memorandum stated that Jaeger's lateness had been called to his attention "in routine fashion on many occasions," repeated the substance of Berger's memorandum of June 15, 1937, and stated that "consistent lapses [from routine], particularly on the part of a salesman whose record of productiveness is bad or who has a great deal still to learn about his job, cannot be condoned." Also on June 1.7, 1937, Berger dictated for the files a memorandum concerning Jaeger. This memorandum stated that Jaeger had seemed at the outset, to apply himself well to learning his new job, that he had been assisted in various ways, and that nevertheless his . 26 This and the following quotation are derived from a memorandum account of the conversation written by Sulzberger on June 18, 1937. 27 The quotation is taken from a report Lane wrote to Sulzberger on June 18, 1937, describing the steps be had taken. THE NEW YORK TIMES COMPANY 1135 record of productiveness remained exceptionally low. It also stated that it became obvious that Jaeger's "personality and approach militated too much against his success as an advertising sales repre- sentative"; that Berger therefore recommended that Jaeger be dis- missed or transferred ; and that Bridge tabled the recommendations in order to give Jaeger "more time . to assure his being given every possible opportunity to make good ." The memorandum con- cluded as follows: About three months ago , I began to observe that Mr. Jaeger seemed to have outside interests which, obviously, were taking his time during business hours. Although I had spoken to Mr. Jaeger earlier during his stay in this department about his tardi- ness, there was no marked improvement in that situation. He was also absent very frequently for a day or two at a time , except- ing for one illness during which he was absent for about ten days. His outside interests obviously took time that might better have been spent learning more about selling or seeing more clients. In view of : his lack of productiveness ; the fact that he seemed to show no improvement in his personality which was obviously one that militated against his success as a sales representative; his seemingly bad approach to the problem of learning how to sell; his being himself not sold on the superiority of The Times so that he could better tell our story ; his disregard of my requests that he report on time, and his detrimental influence on the morale of my staff-I finally decided that my department would be better off without him. In connection with the above quotation , it should be observed that there is nothing in the record to support Berger's reference to Jaeger's having "outside interests which, obviously , were taking his time dur- ing business hours." On the contrary , Jaeger was very conscientious while in the display classified division and even did much work after hours. It is also apparent that Berger had in mind Jaeger's connec- tions with the Office Guild in referring to "outside interests ." There is nothing to indicate other " outside interests" on Jaeger's part and the time reference to "about three months ago " is consistent with this view. Bridge also testified , in effect, that although Berger did not explain the nature of the "outside interests," he (Bridge) probably though at the time that the reference was to Jaeger's union activity. It also appears from the testimony of Bridge and Lane that they had no knowledge and had received no complaints concerning Jaeger's using business time for union activity. A "removal form " concerning Jaeger was prepared for the respond- ent's files on June 17, 1937 . This form stated as the reason. for Jaeger's discharge : " Unproductiveness and chronically late, indicating lack of application." 1136'- DECISIONS OF NATIONAL LABOR RELATIONS BOARD After his conversation with Sulzberger, Jaeger reported 'to' work for the next few days, awaiting word as to the results of the promised investigation. On June 22, 1937, Lane sent for Jaeger and told him that the investigation had disclosed no reason for retracting his dis- charge. Lane also told Jaeger that he would receive no dismissal pay because he had been guilty of serious violations of the respondent's rules. During the conversation Jaeger charged that he had been dis- missed because of his union activity. Lane reported to Adler his refusal to give Jaeger dismissal pay, and on the. following day Adler told Lane that it had been decided to allow such pay. Lane then sent for Jaeger and told him he could have dismissal pay. Jaeger refused to take it on the grounds that his doing so might prejudice his con- tention that his discharge was discriminatory. Lane told Jaeger either that there were "no strings to this payment" or that "we are not trying to buy you off." 28 A few days later Jaeger accepted the dismissal pay on advice of counsel for the Guild and informed Sulz- berger in writing that he. did not intend thereby to waive, or settle his claim of au illegal discharge. The amount of dismissal pay was calculated by allowing the equivalent of salary, for a week and a half multiplied by the number of years of service with the respondent; it totaled approximately $1100. In June 1937 Berger gave Jaeger ratings on a standard form used in the respondent's advertising department. Such ratings, on a scale of A, the highest grade, to E, the lowest, were given to employees in that department in January of each year and on termination of their employment. The ratings given to Jaeger by Berger in January and June, 1937, were as follows: Characteristics: January 1937 Productiveness_____ E Sales Knowledge ------------------------------- D' Personal Appearance ---------------------------- E Attention to Duty ---- ------------ B Cooperation and.loyalty----------------------- __B June 1967 E 1) E, Initiative-ability to take appropriate action --- - _ __E E Punctuality Leadership-ability to direct others----- --------- E E Tact ______________D D On July 14, 1937, Berger filled out a form leaving notice for Jaeger, wherein he stated as the reason for Jaeger's discharge: "Unproduc- tiveness, excessive tardiness, and failure' to 'obey instructions in routine matters." Two questions were asked in ; the form: "Would you re-employ"; "Would you recommend for another Times depart- ment." Berger answered "no" to each. 28 Lane testified to the version first stated above, Jaeger to that stated second. It is unnecessaryto resolve the conflict in testimony since the meaning of the two versions is"essentially the same: Jaeger's acceptance of dismissal pay would not be considered by the respondent a waiver of his claim of discrimination. THE NEW YORK TIMES COMPANY 1137 At the end of July 1937 Berger rated all the employees in the dis- play classified division; this special rating was made because Berger was about to be displaced as manager of that division.. In each of the categories of "Attention to duty" and "Cooperation and loy- alty" Berger gave 21 A's, 2 B's, no C's, 1 D, and 1 E. The E's for both characteristics were given to the same employee, Leonard H. Goldsmith. In none of the other categories were as many as 21 A's given, the next highest number of A's being 14 in each of "Produc- tiveness" and "Tact." In January 1938 Sulzberger directed . preparation of reports on Jaeger for submission to the Board's Regional Director in connection with the latter's investigation of charges filed by the Guild. Bridge prepared such a report summarizing, from his point of view, the cir- cumstances of Jaeger's discharge., This report stated, in part: "Reasons for removal were (1) unproductiveness and (2) chronically late arrival for duty." . Lane forwarded Bridge's report to Sulz- berger together with a covering memorandum. Therein Lane stated in part: The direct cause of Mr. Jaeger's dismissal was his repeated violation of office rules. He was late an unusually [sic) number of times and in spite of directions to notify the office when un- avoidably detained, he failed to do so. In addition he showed an apparent inability to adapt himself to the requirements of a salesman's work. His record of production, due largely I think to these two characteristics, was lamentably weak, the total advertising which he brought in representing about one-third of the payments to him as salary. The record contains a statement of Jaeger's absences and late- nesses during the period he was in the display classified division. A compilation of this statement follows: October 1936: no absences or latenesses. November 1936: no absences; 7 latenesses. December 1936: one morning absence; 10 latenesses. January 1937: one absence for illness; 8 latenesses. February 1937: two absences for illness; 5 latenesses. March 1937: 1 absence for illness; 3 latenesses. April 1937: ill April 1 through 14, and 1.6, 1.7, 22; 2 latenesses. May 1937; excused one day; one lateness. June 1937: no absences; 4 latenesses. The record also shows that lateness was fairly prevalent among the employees in the classified display division. Thus in 1937 the six employees with the worst late records were marked late 75, 67, 57, 56, 48, and 43 times, respectively. In 1938 six employees were marked 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, late 99, 91, 70, 65, 60, and 37 times, respectively.29 It is apparent also from the record that Berger did not regard lateness as a serious fault and that he communicated this opinion to his staff. Some of Berger's testimony is to a contrary effect, but we do not credit it as against other evidence. In this connection, we call particular attention to the fact that although Berger had in January 1937 rated Jaeger E in punctuality, he wrote on February 4, 1937, that Jaeger "has given no possible cause for complaint. about his actions and attitude." On cross-examination Berger testified, and we find, that in May 1937 when he recommended that Jaeger be discharged, Jaeger's punctuality record had "improved considerably" and that Jaeger's punctuality record for May and June 1937 was as good as that of anyone else in the classified display division. Conclusions as to Jaeger The Guild contends that the transfer of Jaeger from the business news department and his subsequent discharge were both acts of dis- crimination. The respondent contends that it was justified in dis- charging Jaeger for cause at the time the transfer was made, that it would have then discharged him except for its desire to avoid an "issue" with the Guild, and that the ultimate discharge was for cause. We cannot accept any theory that the respondent's transfer of Jaeger is indicative of its good faith, in view of the fact that Jaeger was transferred to a job at which he could not possibly succeed. The respondent's officials claimed that by assigning him to another position they were giving him "another chance"; actually, they were sending him to certain failure. This fact is demonstrated by the following observations made by, the Trial Examiner in his Inter- mediate Report: The undersigned was convinced from his observation of Jaeger at the hearing that he did not have either the ability or the aptitude to be a salesman. His appearance, his mannerisms, his speech, his personality, and the impression he made on other people indicated that he was not the type of a man who could sell-no matter how hard he tried. His work on the business page had involved the routine collecting of easily available news and the clerical work of typing and assembling the lists. It developed neither the salesmanship nor the contacts required in the un- usually difficult field to which he was assigned. Corroboration of the Trial Examiner's analysis is supplied by Berger's above-quoted memorandum of February 4, 1937, giving the appraisal of an expert in salesmanship. Jaeger's inaptitude for his new duties 29 There was considerable dispute at the hearing as to the degree of accuracy of the late records . We do not find it necessary to resolve the controversy. THE NEW YORK TIMES COMPANY 1139 must have been, and we find that it was, apparent to the respondent's officials. In fact, Lane and Bridge both expressed to Adler a reluctance to take Jaeger in their department, and Berger's memorandum of February 4, 1937, explained Jaeger's inability to become a successful salesman. James' suggestion to Sulzberger that they transfer Jaeger "just to avoid firing him out-and-out" carries the implication that he was aware that the transfer would accomplish with deviousness the same result as an "out-and-out" discharge. The lack of opportunity accorded to Jaeger appears also from the fact that he was assigned to an exceptionally difficult classification. Finally, any claim that the respondent treated Jaeger with graciousness is rebutted by the un- fairness shown in Sulzberger's instructions to Lane concerning the promised investigation of Jaeger's contentions of June 17, 1937, and in the "investigation" itself. The bad faith attendant upon Jaeger's transfer is in itself an indica- tion that the transfer was made on account of Jaeger's union activities. Other. considerations point in the same direction. For over 14 years prior to his having become active in the Guild Jaeger was employed in the same position. That his work during this time was satisfactory is shown by the rise in his salary. Then Jaeger became active in the Guild. Almost simultaneously, he encountered rebukes and restraints from his supervisor on account of alleged delinquenesci in his work. It was complained that he was permitting his activities for the Guild to interfere with the execution of his duties, and the restraints were of a nature to impede his union actions. Yet Jaeger had engaged in vari- ous outside activities during all or almost all of his preceding employ- ment, and only a few, inconsequential difficulties had resulted there- from. Eventually, Jaeger was transferred to a job he could not fill. The transfer removed him from his membership in the Guild. His production record in his new position was disappointing to his superior, who recommended that Jaeger be transferred to another department. At the same time, this superior praised Jaeger's efforts and attitude, saying that "he has gone whole-heartedly into the business of trying to learn to be a salesman, has cooperated fully, has -given no possible cause for complaint about his actions and attitude towards his department head or fellow-salesmen." Then Jaeger became active in organizing the Office Guild. Thereupon, his superior discovered that Jaeger was guilty of all sorts of delinquencies, subjected him to various reprimands and restraints, and recommended not his transfer but his discharge. Eventually, Jaeger was discharged, and his activity in organizing the respondent's employees was thereby terminated. The correlation in time between Jaeger's union activities and his difficulties with Hughes, together with the shown similarity in pattern between the events in the business news department and those in the 1140 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD advertising department raise a considerable suspicion that his transfer was discriminatory. On the other hand, some of the complaints made of Jaeger's work in the business news department* were clearly justified Jaeger on several occasions showed towards Hughes an extremely provocative attitude; there undoubtedly arose a serious personal friction between Hughes and Jaeger; and Hughes had been informed that his superior, Sulzberger, wished to avoid an "issue" with the .Guild over Jaeger. It is, however, unnecessary to resolve the. difficult issue as to the motive for Jaeger's transfer, since the evidence demonstrates that his discharge from the display classified division was discriminatory. It is apparent that Berger's attitude toward Jaeger changed markedly after the latter had commenced his activity for the Office Guild. Whereas Berger had on February 4, 1937, expressed satisfaction with Jaeger's industry and conduct, he began in May to complain that .Jaeger violated office routine. He also imposed on Jaeger restrictions which, as we have seen, had no justification in Jaeger's actions. The complaints of Jaeger's misconduct on which Berger based, in part, his recommendation for Jaeger's discharge were largely spurious. We have already seen that there was no substance in his assertion that Jaeger "was going out into the field too much." Berger's major complaint of misconduct-Jaeger's latenesses-was even more obvi- ously manufactured, as shown by the prevalence of lateness in Berger's division and Berger's habitual indifference towards unpunctuality. In addition, Jaeger was late more frequently before February 4, 1937, than afterward. Yet on February 4, 1937, Berger informed Bridge that there was no "possible cause for complaint" against Jaeger. When Berger did start complaining to Bridge of Jaeger's latenesses, there was, by Berger's own admission, no basis for complaint. It has, also, already been observed that Berger's statement of June 17, 1937, that "about three months ago, I began to observe that Mr. Jaeger seemed to have outside interests which, obviously, were taking his time during business hours," referred to Jaeger's union interests and was not founded in fact. The statement reveals, therefore, that Jaeger's union interests were objectionable to Berger per se. In June 1937 Berger rated Jaeger E in "attention to duty" and "cooperation and loyalty," whereas he had in January 1937 rated Jaeger B in each characteristic. Since there appears no basis in Jaeger's attitude towards his work for such a drastic drop in rating, and since Berger was generous with high ratings in these categories except in the case of Goldsmith, who was also one of the organizers of the Office Guild, we conclude that Berger's June ratings were based on a distaste for Jaeger's union activity. Obviously, the vague contours .of the characteristics selected easily lent themselves to an expression of such a prejudice. -Berger's attitude, when Jaeger was delayed by flat tires also seems false and THE NEW YORK TIMES COMPANY 1141 disproportionate to the degree of Jaeger's offense, particularly in view of the degree of discretion normally allowed to the advertising sales- men in regulating their own actions and timing their calls on pros- pective advertisers. In view of the considerations stated and of the further circumstances that, as will subsequently appear, Berger was extremely hostile towards the Office Guild and translated this hostility into action in other instances, we find that Berger, motivated by animus towards Jaeger's union activity, built a misleading record unfairly charging Jaeger with violations of the respondent's rules. The evidence demonstrates that this record was the cause of Jaeger's discharge. Berger testified that he recommended Jaeger's discharge for two reasons: "his failure to produce and his violation of routine regula- tions, particularly in view of that failure." When Berger first recom- mended Jaeger's removal from his division on account of lack of productivity he indicated a belief that Jaeger should be transferred elsewhere. However, when he filled out Jaeger's leaving notice, .he stated that he would not "recommend for another Times department." Bridge's report of January 1938 stated that the reasons for Jaeger's removal were "(1) unproductiveness and (2) chronically late arrival for duty." Lane's memorandum of January 1938 stated: "The direct cause of Mr. Jaeger's dismissal was his repeated violation of office rules." When Jaeger conferred with Sulzberger on June 17, 1937, the latter felt impelled to investigate Jaeger's contentions that he had not been guilty of neglecting his work and that he had not been seriously warned on his latenesses. Lane, who conducted the investigation for Sulzberger, asked. Berger to state "if he had any doubt in his mind as to the justice of dismissing Mr. Jaeger on the basis of his violations of office rules." Sulzberger testified that Jaeger was discharged "not because he did not turn in business, but because he did not try, in our judgment." Sulzberger also testified that if he had been convinced that Jaeger had "tried and made an honest effort" the latter would not have been discharged in June 1937. It is clear from the above that Jaeger was discharged in June 1937 because of the record of alleged misconduct built by Berger for anti- union reasons. It is also clear that absent this record Jaeger would probably have been transferred to another position. The Trial Examiner concluded in his Intermediate Report that the evidence did not support a finding of discrimination against Jaeger. The Trial Examiner did not, however, analyze the events which occurred after Jaeger's transfer, apparently on the basis that the transfer was tantamount to a discharge. In fact, however, Jaeger was not discharged at the time of his transfer but continued in the respondent's employment. Even assuming that the respondent had good cause to discharge Jaeger in October 1936, it does not follow 323429-42-73 1142 DECISIONS '0F NATIONAL LABOR RELATIONS BOARD that the respondent's forbearance at that time gave it carte blanche to violate the Act in the future.. And while an employer does not commit an unfair labor practice in discharging an employee because of his unfitness for his position, it may not legally dismiss even an unfit employee if its purpose is not to eliminate incompetence but to discourage union activity. Having found that Jaeger's discharge was caused by the record built by Berger because of his hostility to the Office Guild, we find that the respondent in discharging Jaeger discriminated in regard to Jaeger's hire and tenure of employment, discouraged membership in the Office Guild, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharge of Leonard H. Goldsmith" Leonard H. Goldsmith was first employed by the respondent on January 2, 1934, to solicit advertisements by telephone on a commis- sion basis. On March 10, 1934, Goldsmith was appointed a solicitor in the classified advertising division of the advertising department at a salary of $15 a week. On January 3, 1935, he was transferred to the display classified division and assigned to the classification of restaurant advertising. On May 22, 1935, Goldsmith was assigned to the classification of boats and accessories. Thereafter, and until August 1937, Goldsmith served continuously on the latter classifica- tion with the exception of 13 days in September 1935. After August 6, 1935, Goldsmith also solicited advertisements for the seeds and nurseries classification. From time to time Goldsmith also worked on other classifications when needed. Goldsmith received several raises in salary. The last of these was given on March 15, 1937, and brought his weekly wage to $32.50. We have already described the initial steps in the organization of the Office Guild taken by Goldsmith and Jaeger. Among the em- ployees to whom Goldsmith first spoke of organizing a union for office workers was Irving Taubkin, copy chief in the respondent's promotion office. Ta.ubkin told Ivan Veit, the respondent's promotion manager, that an "office guild of some kind" was being organized in the adver- tising department and. that Goldsmith, Collins, and Jaeger were particularly interested in the movement. Veit passed this informa- tion on to Berger. Soon afterwards-before the end of April 1937 and possibly as early as April 16-Berger called Goldsmith into the conference room. Goldsmith testified that Berger said: "I hear some talk around about organization, and that you are involved in it. I think you are making a very bad mistake." Goldsmith also testified that he denied "having any part in the activity," and that Berger 'then said that Goldsmith was making a very bad mistake; that having a union would be a very THE NEW YORK TIMES COMPANY 1143 bad mistake; that the idea of a union for advertising solicitors was ridiculous; that solicitors were artists and their work could be measured only by their production and not by the number of hours they worked ; and that "you just can't walk off in the middle of a solicitation because the five o'clock bell rings and tell the man `I will be back tomorrow morning when my union hours start again.' " Goldsmith also quoted Berger as saying further: It just won't work out for solicitors; in addition unions are just for people who are mediocre or who are incompetent, and need the weight of all these people to pull them along; they can't pull their own weight. You have a good future here on the Times, you have got a very good record in the past, and you should not get involved in a thing like this. The management certainly won't like activities like this, and I like you, and I am speaking to you as a father, or a friend, and I want you to, for your own good, don't jeopardize your future on the Times, don't jeopardize your career, because you have a career here, by getting involved in anything like this. Goldsmith testified that he then said lie "would not" and that Berger replied: "Well, that is fine. You won't regret it." Berger contradicted Goldsmith's testimony as recited above and testified as follows to what was said in their conversation: Well, I introduced the conversation by telling Goldsmith that I heard a rumor to the effect that he was one of the organizers of the Guild, and I wanted to talk to him about it man to man, informally, and off the record. I told him I believed that, I was not instructed officially, and that officially I had nothing to say, that I had had no instructions from anybody, from none of my superiors, and that so far as I knew, the New York Times was not interested, pro or con. I believe I went on to say that what anybody did outside of office hours was no concern of mine, either, officially or personally, but what they did during office hours concerned me very much. I expressed the hope that nothing was being done to indicate that office time was being used for other than office purposes. I pointed out to Goldsmith the need. for not using business time for outside activities. Then I went on to say that if he wanted my opinion as a friend rather than as department head, if he wanted my, personal opinion rather than official ones, I would be glad. to give it to him, but if he did not want to talk to me about it, I would think none the less of him. Then, I believe Mr. Goldsmith spoke up, and said that he would be very glad to talk to me. He understood perfectly the basis. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I believe I asked him if he was sure he understood that this was a chat between friend to friend, and not official business . He did. He went on to say that, to the best of my recollection, he was not an organizer of the Guild ; that he was merely interested in ,possibly joining it , and what did I think. Well, my own opinion was not very definitely crystallized, and I discussed rather the functions and problems of a salesman. I pointed out the difference between salesmen of commodities, and a salesman of advertising, selling such an intangible as adver- tising space, and in that sense, I pointed out to him that to a very large extent, an advertising salesman's work is creative effort. I pointed out that in the last analysis , the value of a salesman to a sales manager depended upon his ability to sell , and that in turn depended upon certain factors or qualities such as native intelligence, and sales knowledge , initiative, perseverance, and so forth. There did not seem to be very much else to say. I reminded him there that I wanted him not to construe anything I said as an urge to either action or inaction , and that our relations would be affected only by his accomplishments. Berger testified that his talk with Goldsmith was occasioned by.the facts that he had found that Goldsmith " organized himself fairly badly" and that he "wanted an opportunity [to] tell Mr. Goldsmith that since he was careless of detail, since he was having a hard time keeping up with the routine of his work, that he had better pay attention to business during business hours." Berger also testified to a conversation he had at about the same time with Collins on the subject of unions ; the account he gave of this con- versation was substantially the same as his account of his talk to Goldsmith. Collins did not testify . Berger testified that he spoke to Collins because the latter was "a slow, methodical but faithful kind of worker" and "I thought that it would be a good thing to suggest to Mr. Collins that during business hours he. had better stick to business." . As will subsequently appear, Berger at a later time spoke to Jane Schwartz about the Office Guild . He testified , in substance , that this conversation was inspired by curiosity. A resolution of the conflict between the testimony of Goldsmith and that of Berger is particularly difficult because , in our opinion, the credibility of each was seriously impaired at the hearing. The record discloses that certain portions of Goldsmith's testimony are inaccurate and unreliable and that at times he was guilty of exagger- ation. On the other hand , Berger's testimony concerning his con- versations with Goldsmith and Collins and his motivations impresses us, as does much of his testimony generally, as being disingenuous. THE NEW YORK TIMES COMPANY 1145 We note also the superfluity of protestations appearing in his version of the conversations, the feebleness of the excuse offered for his speak- ing to Schwartz, and. the fact that his claimed remarks went far beyond his asserted purposes., We take into consideration, as well, an explan- ation given by Berger to Lane. In June 1937 Goldsmith mentioned to Lane that he had discussed his union activities with Berger. Lane then sent for Berger and asked him what he had said. Berger replied that Goldsmith "came to me for advice and I advised him as a friend that there wasn't any particular point in an advertising salesman joining a labor union." Berger, therefore, did not explain to Lane his alleged motive for speaking to Goldsmith; nor did he adviseLane that he had told Goldsmith not to use business time for outside activities. While thus omitting to inform his superior of his supposed reasons for the conversation and of its supposedly most important element, Berger also managed to insinuate falsely that Goldsmith had initiated the conversation. Finally, we take into consideration the fact that certain testimony of Jane Schwartz, subsequently discussed, describes statements allegedly made to her by Berger of the same nature as those allegedly made by him to Goldsmith. This testimony was also contradicted by Berger, but Schwartz was, in our opinion, a highly reliable witness. On the whole, we credit Goldsmith's version of the conversation with Berger. We find that the respondent, by the action of its super- visor, Berger, in discouraging Goldsmith and Collins from engaging in union activity, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about May 1, 1937, Goldsmith presided at the Lincoln Hotel meeting of the Office Guild and was there elected president of that organization. A report of the election was carried the next day in two New York newspapers. Goldsmith testified that a day or two later Berger again called him into the conference room. The substance of Goldsmith's testimony as to the conversation which then allegedly occurred is as follows: Berger taxed Goldsmith with having violated his' "promise" by becoming president of the Office Guild. Berger also said, "This certainly is a reflection on me, that all this activity should start . . . in my department." Goldsmith replied that he had not made a definite promise and that Berger had no right to speak to him about his union activity. Berger said that he was not speaking to Gold- smith as "a boss" and that Goldsmith had spoiled his chances for a brilliant career. Berger also criticized Goldsmith for associating with Jaeger ("a trouble maker") and Jane Schwartz ("a nice girl, but she is a youngster; she is married; she does not need her job"), and again delivered a lecture on the subject of unions not being suitable for advertising solicitors. Goldsmith protested once more, and Berger 1146 DECISIONS OP NATIONAL LABOR RELATIONS BOARD replied that he was speaking "purely on a personal basis." Berger pointed to his efforts on Goldsmith's behalf. Goldsmith said that Berger's good intentions were not enough and that a union was "the answer." Berger said, "Well, when you are young you are radical. Being radical is fine if you can afford it." Goldsmith denied being a radical, and the conversation ended. Berger contradicted Goldsmith's testimony in full and testified that the second time be spoke to Goldsmith about the Office Guild was on May 17,1937, at which time he merely asked Goldsmith if the latter was responsible for putting a union notice on the office bulletin board. We find that a conversation occurred between Goldsmith and Berger as testified to by Goldsmith, and that by the statements made therein by its supervisor, Berger, the. respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 1, 1937, Max Falk displaced Berger as manager of the display classified division. One of Falk's first actions was to survey the personnel files of each of the employees in that division. When he came to Goldsmith's file, he noticed a number of critical memoranda and the presence of low ratings. Falk spoke to several of the senior salesmen about Goldsmith, and they commented adversely on Gold- smith's work. Falk then asked one of these senior salesmen, Walter J. Skelly, to prepare a report giving the basis for his opinion of Goldsmith. Skelly, who was on bad personal terms with Goldsmith, submitted such a report to Falk on August 18, 1937. In our opinion the evidence shows that this report was biased and unfair in its substance and in its omission of factors favorable to Goldsmith. The manner of its preparation was also unfair, since Skelly gave Goldsmith no opportunity to explain some of the matters referred to in the report and accepted statements made by other salesmen without giving Goldsmith an opportunity to defend himself. After receiving the report, Falk, without confronting Goldsmith with the report and with no more than a negligible further investigation, recommended that Goldsmith be discharged. On August 31, 1937, the respondent discharged Goldsmith on the basis of Falk's recommendation. The respondent contends that it discharged Goldsmith on account of numerous violations of its rules and various other delinquencies. The Guild contends that the respondent built a false record of criti- cisms against Goldsmith in order to conceal the fact that the motive for his discharge arose from his union activities. The record contains voluminous and frequently contradictory evidence of the faults charged against Goldsmith and of the degree of concern with which the respondent regarded such faults. The alleged delinquencies related chiefly to customers' disputes of advertisements reported by THE NEW YORK TIMES COMPANY 1147 Goldsmith, allegedly improper selling methods employed by him, his use of business time for outside purposes, his method of reporting on the status of advertising he had solicited, and his alleged non- observance of office routine. The record also contains evidence designed, on the one hand, to show a claimed purity of the respondent's intentions toward Goldsmith and, on the' other, to demonstrate a claimed hypocrisy. The evidence is inconclusive on both scores. The record also establishes beyond reasonable dispute that Goldsmith made a highly successful record of production. No useful purpose would be served by recapitulating in detail this evidence. We are, on the whole, of the opinion that the truth lies between the blamelessness claimed by Goldsmith and the extreme misconduct alleged by the respondent. Goldsmith was undoubtedly careless, inattentive to routine requirements, and involved in a large number of disputed advertisements. At the same time, we believe that Berger, at least, did not demand, or obtain, of the salesman a high standard of compliance with formalities, particularly in the case of men with good records of production. Furthermore, the impor- tance of many of the complaints is negatived by the fact that they were based on occurrences which antedated increases in Goldsmith's pay. We believe, also, that Goldsmith was treated unfairly both in the circumstances of his discharge and as respects some of the reprimands to which he was subjected. This unfair treatment, together with Berger's anti-union conduct and Goldsmith's union prominence, raises a definite suspicion that Goldsmith was discharged because of his union activity. On the other hand, Goldsmith's discharge was instigated not by Berger but by Falk, concerning whom there is no evidence to indicate hostility toward the self-organization of the respondent's employees. Many of the complaints made against Goldsmith were, also, fully justified. The unfairness shown toward Goldsmith arose chiefly from Falk's uncritical acceptance of Skelly's misleading and biased report. The evidence does not support a, finding that Skelly was actuated by hostility toward Goldsmith's union activities or that he was instructed to weight his report so as to aid the respondent to discourage the organization of its employees. Falk's attitude in recommending Goldsmith's discharge on the basis of Skelly's report is explained by the following observations made in the Trial Examiner's Intermediate Report, which we adopt: . . . the undersigned observed Falk on the stand for some time. He was a man who apparently engaged in no unnecessary words or action. Although his procedure in procuring the dismissal of Goldsmith without giving the latter a chance to defend himself appears heartless and therefore suspicious, nevertheless, the record 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicates that the information coming to Falk in August 1937 was such that it might have moved him to seek an immediate dismissal without believing an investigation of Goldsmith's contentions was necessary . From his observation of the witness and his examination of the record , the undersigned believes that this is what happened ; that the one-sided nature of the investiga- tion was not caused by a desire to end union activities but rather by a desire to dispose of an employee whose record of productive- ness was marred by repeated complaints.. .We find, as did the Trial Examiner, that the entire record does not support a conclusion that Goldsmith 's discharge was discriminatory. We shall, therefore, dismiss the allegations of the complaint to that effect. E. The transfer of Isaac Gilbert Isaac Gilbert was first employed by the respondent on August 24' 1927, as an auditing clerk of telegrams , cables, and radio messages sent by the respondent to and from its New York offices. In this capacity Gilbert would each day receive copies of the messages of the preceding day in order that he might determine whether the tolls charged were proper and fix the price which the respondent should pay. In the course of his duties Gilbert had access to information considered confidential by the respondent . . His job required considera- ble geographical knowledge , detailed familiarity with cable and wireless rates and routes, and some acquaintance with foreign exchange. Gilbert had ample opportunity to exercise intelligence and ingenuity, and the record discloses that he applied both characteristics to his duties. By suggesting new channels for messages and. by other meth- ods, Gilbert was able to effect for the respondent savings of consider- able magnitude. While on the cable desk Gilbert had one assistant and sometimes two assistants. Gilbert's initial salary was $30 a week, but by the end of 1929 he was earning $39 as a result of successive increases of $3 each. In May 1932 Gilbert 's salary was reduced by a general 10-per cent wage cut and thus continued at $35.10 per week until September 1932. At that time he resigned and, moved to London, England. There he received temporary employment in the respondent's London office. Subsequently, Gilbert returned to New York and in December 1932 was reinstated to his former position . In January 1937 Gilbert's salary was raised to $40 per week, a level at which it has since remained. Gilbert's activities in connection with the B. S. A. U. and his questioning in January 1936 by Finch , his superior, have already been described . In the spring of 1937 Gilbert was active in the Office Guild, then in the process of formation, and became deputy controller of its THE NEW YORK TIMES COMPANY 1149 New York Times Unit. Subsequently, Gilbert became a prominent member of the Guild. In July 1937 he was nominated for the position of alternate delegate from The New York Times Unit of the.Guild to the Guild's Representative Assembly, and about September 1937 he was elected first vice chairman of that unit. Gilbert's occupancy of the latter position was publicized through the Guild's news letter and was known to Weinstock, his superior. At the beginning of December 1937, Licater, then a supervisor in the auditing department, said to William Steinle, an employee in that department: "I have a question to ask of you. You may answer or not, as you wish." Steinle'said he would decide after he heard the question. Licater then said, "Did Mr. Gilbert just finish talking to you about Guild activities?" Steinle replied in the negative, where- upon Licater said: "We do not like Guild activities around here. Are you it member of the Guild?" Steinle answered that he was going to join the Guild. We find that by these coercive statements and questions on the part of Licater, a supervisory employee, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In February 1938, Weinstock, Finch, and Licater held a conference in which they discussed transferring Gilbert to another position. On direct examination Weinstock's explanation of what occasioned the conference was as follows: In view of the various outbreaks of confidential or intimate information that were occurring 'at that time, I wished to safe- guard the confidential information which Mr. Gilbert would have in his position, knowing, or having in mind, rather, my suspicion of his Communistic activities, and I wished to take such action as would lock the stable door before the horse was stolen. According to the testimony of Weinstock and Finch, Weinstock spoke at the conference essentially along the lines of his quoted testimony, and Licater added that it was desirable, also, to train another employee in Gilbert's work because no one else in the depart- ment was thoroughly familiar with the duties involved. The con- ferees decided to transfer Gilbert to another position and, on Licater's recommendation, to put Ress in his post. Ress was not a member of the Guild. Weinstock instructed Licater to find a position for Gilbert commensurate with his position and salary.' They decided, also, to tell Gilbert that the transfer was being made because they were desirous of securing a "new viewpoint" in the position and of training another man in the work. Weinstock testified that "we did not wish to tell Mr. Gilbert about the question of Communism as we did not want to open that issue again in the auditing department." A 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggestion by Licater that Ress should write a manual of the duties of the position was also adopted. At some time after the conference, but in the same month, Licater told Gilbert that "we" wanted a new man on his job, and that Gilbert would break in Ress and himself be transferred to the invoice auditing section. Licater added that Gilbert "need not be afraid" for his job. Gilbert then asked Finch why he was being transferred. Finch explained that it was desired to acquaint someone else with the position in case something happened to Gilbert and also to have his successor write a manual of the duties involved. Gilbert expressed surprise at an apprehension suddenly arising after his 10-year service, and asked why his place was not being taken by his assistant, Michael J. Lawrence. Finch replied that Lawrence was not capable of han- dling the job. Ress was thereafter placed on the cable desk, received training from Gilbert and Lawrence, and wrote a manual of the position's duties. On April' 18, 1938, Gilbert assumed his new position in the invoice auditing section, and has since continued at the same work. His duties now consist of auditing invoices of the respondent's purchases of supplies other than paper. Gilbert checks the computations of the invoices, assembles the supporting papers, and passes them on to another department. He also attaches to the invoices little slips of paper used in connection with the business machines. Gilbert's duties do not give him access to confidential information. His work is not related to and makes no use of the knowledge and experience acquired in his previous position, except that on occasion he makes minor calculations involving foreign exchange. Although the sums involved in Gilbert's present duties are greater in the aggregate than those he dealt with on the cable desk, his present opportunities for effecting savings are stereotyped and negligible as compared to his previous opportunities. Mann is the head of the three-man invoice auditing section. Jesse Spitzer, who used to be Gilbert's assistant on the cable desk, is at least on a par with Gilbert in the section and, although not officially. considered Gilbert's superior, may, perhaps, outrank him. Despite testimony by Weinstock to the contrary, it appears.from the record that Gilbert's new job is inferior to his old. It is less difficult and stimulating, affords less chance for Gilbert to demonstrate his worth, requires less knowledge is more routinized, and does not. involve supervision of an assistant. Wein- stock also testified that Gilbert had reached the "top rung of the ladder" on the cable desk, whereas in his new position he would have improved chances for promotion. Weinstock based his latter con- clusion on two premises: first, that Gilbert might be advanced to the supervisor's position in the event of a vacancy; second, that the training and experience obtained in his new post would fit him for THE NEW YORK TIMES COMPANY 1151 other positions in the auditing department. The first of these premises, however, is clearly too speculative to be regarded as a reasonable offset to the immediate disadvantages incurred by the transfer. The second premise cannot be seriously considered; the additional experience acquired by Gilbert is trivial, as appears from the facts that he easily learned his new duties in a week and that they are repetitive in character. The circumstances of Gilbert's transfer as so far explored establish, in our opinion, a prima facie showing that the respondent's motivation was union hostility. For some 10 years Gilbert did satisfactory work in the same position. During this time he acquired and used special- ized knowledge. He was then transferred to a position which did not employ this knowledge and which did not require an equal capability. The decision to make the transfer was arrived at within 6 months of Gilbert's election to the office of vice chairman of the Guild. Wein- stock, who ordered the transfer, was hostile to union organization in his department, as seen in connection with Grace Porter's discharge. Finch, present, at the conference in which it was decided to transfer Gilbert, had earlier been used by Weinstock to defeat the B. S. A. U. Licater, the third person at the conference, entertained animosity to the Guild and to Gilbert as an active union member, as shown by his described conversation with Steinle. Weinstock's claim of a sus- picion of communism and a desire to remove a Communist from a confidential position follows the pattern of discrimination against Grace Porter. Finally, the reason given to Gilbert-that the manage- ment had become apprehensive of a sudden loss of his services-was so palpably inadequate that it could well serve a purpose of making Gilbert and other employees believe that the true and unstated reason was his union activity.30 An explanation is, therefore, called for, and we turn now to a consideration of that offered by the respondent. We have already seen that Weinstock testified that his suspicion that Gilbert was engaged in communistic activities, together with a series of disclosures of confidential information, led to Gilbert's transfer. Weinstock's alleged desire to "lock the stable door before the horse was stolen" seems, however, to be belated, and is conse- quently unconvincing, since it was supposedly based on information acquired two years before its conception. Nor were the "outbreaks" of disclosures such as reasonably to stimulate fears which had so long been quiescent. Weinstock identified the disclosures at the hearing. Of these, the first was an article which appeared in the December 1937 issue of Better Times, a newspaper "published by the Communist Party Units of The New York Times." This article described the institution of an alleged "speedup" system and "sweatshop condi- 30 Indeed , Ross, G ilbert's successor , came to just this conclusion . The evidence is uncontradicted that Ress told his assistant , Lawrence, that the nature of his work as Gilbert 's successor was so complicated and required so much experience that he could see no reason for Gilbert 's transfer except union activity. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions" in the auditing department. Its writing obviously required only such familiarity with that department as any of its employees would normally have. Although of a character to arouse resentment in Weinstock, the article cannot, in all reasonableness, be regarded as disclosing "confidential" information. The second disclosure appeared in a squib in the same issue of Better Times as follows: Night managing editor McCaw complained to Mr. James that the office boys were not paid for their extra work election night. Said Mr. McCaw's note: "It's things like this that make them join the Guild." Truer words have never been spoken. The third disclosure was of a "Confidential Memo to Advertising Staff" from Don Bridge, a facsimile of which appeared in the Decem- ber 6, 1937., issue of The Guild Reporter, a' publication of the Guild. In short, the first "disclosure" was nothing of the kind. The second was of the contents of a note which passed between two edi- torial executives and was out of the range of an employee in the auditing department. The third was of a communication which reached a number of persons in the advertising department, had no connection with the auditing staff, and was published not in a Communist Party organ, but in a union newspaper. Weinstock admitted that "there was no evidence of anything that would reflect on Mr. Gilbert's work." The case for Gilbert's integrity, however, goes beyond this negative; the only items which were actually disclosures indicate affirmatively by their nature that the breaches of confidence involved were almost surely perpetrated by persons in departments other than the auditing department. If, in the face of this fact, Weinstock was inspired by the disclosures to transfer Gilbert, then he exhibited a degree of caution and suspiciousness wholly incompatible with his failure to remove Gilbert from confidential work in January 1936, with his delay until February 1938 to decide on Gilbert's transfer although the disclosures had appeared in December 1937, and with the sub- sequent delay from February to April 18, 1938, at which time Gilbert's transfer was effectuated. Weinstock's testimony and the respondent's defense are further discredited by other factors. On July 23, 1938, during the prelim- inary investigation of the charges filed by the Guild regarding Gilbert, the Board's Regional Director requested the respondent to supply .its "answer on the charge with respect to I. Gilbert." On or about July 25, 1938, Adler conferred with Weinstock about the charge of the Guild and the reasons for Gi]bert's transfer. Weinstock testified that he gave to Adler the same reasons for the transfer that had been given to Gilbert. On July 26 Finch, acting at the request of Weinstock, addressed to THE NEW YORK TIMES COMPANY 1153 ' him a memorandum giving reasons for Gilbert's transfer. Finch wrote: In the reorganization of our department, it was discovered that the nature of duties performed by him [Gilbert] were very involved, and that no other member of the staff had sufficient knowledge of the work to carry on for an extended period in the event of his illness or absence. It was finally decided that another person should be assigned and thoroughly trained in his work, and also obliged to write a complete manual of the duties. By this method we could determine whether all the work was essential, or if certain details could be eliminated. His transfer is only one of numerous changes that have been effected in the reorganization of the Auditing Department. The next day, Weinstock in turn reported to the publisher, Sulz- berger, and gave him a memorandum explaining Gilbert's transfer as follows: The transfer of Isaac Gilbert from the position of cable clerk to the position of invoice clerk resulted from the installation of mechanical bookkeeping machinery and the consequent reorgan- ization of the department. Forty-two transfers of positions were made in the Auditing Department and fourteen persons were removed from employment from January 1, 1937 to May 1, 1938, and Mr. Gilbert was included among those transferred. Mr. Gilbert continued [as cable clerk from the time of his re- employment in December 1932] until the period of office re- organization in the latter part of 1937 and the early part of 1938, when it was determined that it would be desirable to have a new viewpoint- in the cable checking position occupied by Mr. Gilbert. On July 28,,1938, Sulzberger answered the inquiry of the Board's Regional Director regarding Gilbert by a letter stating: Mr. Gilbert was employed by the auditing department audit- ing cable charges. As a result of the addition of a number of bookkeeping machines, which required a substantial reorganiza- tion of the personnel of this department, in April this year Mr. Gilbert was transferred. Since January 1937 there have been 42 transfers in the auditing department alone-resulting in a net reduction of seven em- ployees. Mr. Gilbert, whose services were retained, was trans- ferred in the course of business without reduction in salary, or loss of employee benefits. 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Weinstock testified that the reasons for Gilbert's transfer were (1) recollection of previous suspicion of Gil- bert's "communistic activity," and (2). the outbreaks of confidential information from the Times. Weinstock testified that he did not recall any other reasons, that lie was directly responsible for the trans- fer, and that he would have known of other reasons if there had been any. He further 'testified: "I was transferring Mr. Gilbert in order to protect the confidential information which Mr. Gilbert's duties brought him into contact with, and because . . . I had lost con- fidence in him as a Communist, or as one suspected of being a Com- munist." It was thereupon pointed out to Weinstock that according to his own testimony he had given Adler an entirely different explanation for the transfer. Weinstock then changed his testimony so as to say that "there were a number of reasons" for Gilbert's transfer; that the reason given Gilbert and Adler "was not the basic reason"; and that "the important reason was the question of Communism." He then summarized his new position by testifying: "There were incidental reasons, such as putting anew viewpoint in the position, and breaking a new man in on the job, but I would say the important reasons were still the reasons of Communism." The witness was then asked why he had failed to give the respond- ent's vice president and general manager the "basic reason" for Gilbert's transfer. He paused. When asked if he understood the question, he replied: I understand your question quite perfectly. I am trying to determine the.answer for it. The reason is, at that time it did not seem necessary to give the Communistic angle to Colonel Adler, and I gave him the other reasons. The witness was then shown Sulzberger's letter to the Board's Regional Director, dated July 28, 1938, stating that Gilbert's transfer was "the result of the addition of a number of bookkeeping machines which required a substantial reorganization" of the departmental personnel. He testified that although he had rendered Sulzberger a report on the entire reorganization of the department, nevertheless, he did "not recall at the moment" what was the source for Sulzberger's statement that the reason for Gilbert's transfer was the reorganization. Weinstock was then shown his own memorandum to Sulzberger, dated July 27, 1938, stating that the transfer "resulted from the installation of mechanical bookkeeping machinery and from the consequent reorganization of the department." He was asked if he had made that statement. The transcript then proceeds: A. That is correct. THE NEW YORK TIMES COMPANY 1155 Q. You gave no other affirmative reason for his transfer, did you? A. Unless it is stated there. Q. Well, examine it. . (Witness examines document.) The WITNESS. I have indicated here that forty-two transfers of positions were made in the auditing department at that time and Mr. Gilbert was included among those transfers. Q. (By Mr. Levin.) That is the only additional reason which you gave; is that right, other than the one I have read? A. There are seven paragraphs in that letter in addition to that, all on the subject of Gilbert. The memorandum so prepared and examined by Weinstock makes the direct statement that Gilbert's transfer was caused by the installa- tion of mechanical bookkeeping machinery. It also states that his transfer came at a time "when it was determined that it would be desirable to have a new viewpoint in the cable checking position." It does not say anything about the desirability of having a substitute capable of performing Gilbert's "very involved" duties, or about communism, or about the release of confidential information. The following day at the hearing, Weinstock testified further on redirect examination by the respondent's counsel. This time he stated that he personally presented his memorandum of July 27, 1938, to Sulzberger, at which time he indicated "that the transfer of Mr. Gilbert was made for the reasons stated therein, which were on account of the reorganization of the auditing department." He testified that he called Sulzberger's attention to Finch's memorandum, that he told Sulzberger that Finch's statements gave "the reasons," and that "in addition to that, I told Mr. Sulzberger that there was one reason which was not stated in those notes, _and that was our suspicions of communism in relation to Mr. Gilbert." He testified further that he explained the omission by telling Sulzberger that "we" had not wished to "raise any issue" concerning communism in the auditing depart- ment. Sulzberger likewise testified that Weinstock gave him the memo- randum and "told me that in addition to that, there was another reason which he had not included in the memorandum, and that was his suspicion that Mr. Gilbert was 'a communist, and that that was the reason he had moved him." However, Sulzberger, acting pursuant to advice from his attorneys, determined that the communist sus- picions should not be mentioned in his letter to the Board's Regional Director; "that there was ample reason for moving Gilbert in the normal course of the business, and that in answering the specific charges, we could certainly show that his membership in the Guild 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had absolutely nothing to do with it." The letter was accordingly written on July 28, 1938 , as set forth above. The record thus shows Weinstock's effort to adjust his testimony. to the cross-examination , his concealing from Adler of the reason advanced as the principal basis for the transfer , and his mentioning of that reason to Sulzberger almost as an afterthought . It also shows that the respondent 's officials have advanced a number of reasons for Gilbert's transfer , of which only those relating to com- munism were originally offered by Weinstock's testimony. The latter circumstance alone indicates that the alternative reasons were false; other factors point in the same direction . The purported wish to have another employee familiar with Gilbert's duties cannot be taken seriously ; Gilbert's assistant , Lawrence, was already familiar with these duties and substituted for Gilbert when the latter was ill or on vacation . Furthermore, no such desire seems to . have been previously experienced , and was certainly not acted on, during the decade in which Gilbert held the same position. The desire to have a manual of duties written in order to see if certain details could be eliminated does not explain why Gilbert was not told to write the manual .31 Although the auditing department was reorganized to a large extent because of the installation of business machines, the cable clerk position and duties were in no way affected thereby. The desirability of a "new viewpoint " was not elaborated upon at the hearing and is meaningless . We conclude, therefore , that all of the explanations advanced by the respondent for Gilbert 's transfer are baseless and insincere. For the reasons already stated, which are in no way rebutted by the equivocal and untrustworthy character of the respondent 's defense, and on the entire record in the case , we find, as did the Trial Examiner, that the respondent transferred Isaac Gilbert on April 18, 1938, because of his membership and activity in the Guild, and that it thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act . Gilbert desires reinstatement to his former position. F. The transfer of Jane Schwartz Jane Schwartz (also known as Mrs. Willard Bleyer) began working for the respondent on September 24, 1935, as an advertising solicitor in the display classified division of the advertising department. Schwartz had previously done editorial and exhibition work for a publication known as Art News and had also handled publicity and advertising copy for several antique firms and art galleries. She 31 In this connection it should , perhaps, be explained that incumbents of other positions were also instructed to write manuals of their duties. Hence it is clear that the respondent could not have considered manuals to be worthwhile only if written by persons comparatively new to the positions surveyed or to be capable of being written only in the free time of employees in training. THE NEW YORK TIMES COMPANY 1157 had additional connections in the art field arising from the circum- stance that her father was an art dealer. Schwartz was assigned by the respondent to the arts and decorations classification , her duties consisting of soliciting advertising from art galleries , antique shops, advertising agencies , and similar sources of advertisements of arts and antiques . Schwartz soon handled practically all the accounts of this nature. Schwartz was originally employed on a probationary status at $20 a week. After about 3 months, the period of probation was con- sidered ended , and her salary was increased to $25. On July 27, 1937, she received an additional increase to $28, and thereafter con- tinued to receive that salary- so long as she was employed by the respondent. Statistics of record show that Schwartz was highly successful as an advertising solicitor and that the advertising linage in her classifica- tion increased greatly as compared to both the linage previously carried by the respondent and that carried by other newspapers of New York City . At the hearing counsel for the respondent conceded, and we find, that Schwartz had done "excellent work in the arts and antiques department." As has already been seen , Schwartz was active in the formation of the Office Guild; she, Jaeger, and Goldsmith were the real leaders of the organization. Goldsmith approached her on April 15, 1937, with reference to organizing the respondent's office workers , and she in turn spoke to employees Land and Donnet about organizing. She attended the first organizational meeting held at Climenko 's home on April 16, 1937 , and subsequent meetings of the same character. Schwartz was elected secretary of the Office Guild on or about May 1, 1937. She was also on the organizational committee of the Office Guild and on a special committee of that organization formed to investigate a situation involving the New York Post . The first issue of the News Letter, published on June 11, 1937, by The New York Times Unit of the Office Guild, featured a signed article by Schwartz in which she urged all newspaper workers to join the Office Guild. This was circulated throughout the respondent 's offices. Schwartz also served on a committee to arrange for the election of officers for The New York Times Unit of the Guild. On August 31, 1937, she was elected secretary of this unit , and in October 1937 she became third vice president of the Guild itself. She was, variously, a delegate and an alternate delegate to the Representative Assembly of the Guild , and later became vice chairman of the Unit , instead of secretary . Schwartz 's union activities were generally known to the respondent's officials. About the second week in May 1937 , Berger, manager of the display classified section, called Schwartz to his desk . Berger reminded her 323429-42-74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about a request for a salary raise she had made about 6 weeks before and said, "It has come to the attention of the management that you are interested and involved in these recent union activities." Schwartz remarked that she could not see how her competence as an advertising solicitor could possibly be affected by her union activities. Berger disclaimed the existence of any connection between the two matters. Schwartz then pressed him as to the reasons for his having referred to her union activities on the heels of mentioning her request for a raise. Berger avoided a direct answer. Instead, he said that he was speak- ing to Schwartz as a friend and that he' thought her career would be jeopardized it she became "interested and active in union activities." The remainder of the conversation continued as follows: He [Berger] tried to prove to me [Schwartz] that union activities on the part of advertising solicitors just would not go on the New York Times. He said that there was plenty of dead wood in the way of solicitors, who were not bringing in business on the advertising staff, and that if there was a contractual agreement between the Guild or any other union, with the New York Times, the New York Times would have to get rid of these solicitors, because of the increase in wages. He also said that if there were any contractural agreement, if you were to come in late in the morning or if you would go out to your locker room for a smoke, you would consequently have to be docked. He said that advertising solicitors were creative artists; and their work could not be measured in terms of pay and hours, and he couldn't see how any union could possibly help the ad- vertising solicitors of the New York Times. I said to him that he didn't have any right to speak to me in that fashion, because what he was doing was a violation of the Wagner Act', because he had no right to speak to me, in the first place, about union activities, and, secondly, he should not have tried to dissuade me from joining the Guild, and being active in the Guild. I asked him if he knew anything about the Wagner Act and he replied that he didn't.32 We find that the respondent, by the above statements of its super- visory official, Berger, interfered with, restrained, and coerced its 32 Our findings as to the conversation described are based on the detailed and convincing testimony of Schwartz. Berger contradicted Schwartz's version, testifying that he told her he was personally curious about her interest in the Office Guild; that she should answer him only if she pleased ; and that the manage- ment had "expressed no interest and given no instructions." He testified that she explained that she was interested in the principles of unionism , and that he then closed the discussion with some non- committal remark. For the reasons expressed in our discussion of Goldsmith's discharge, we do not credit Berger 's testimony in this respect. THE NEW YORK TIMES COMPANY 1159 employees in the exercise of the rights guaranteed in Section 7 of the Act. On July 30, 1937, Berger, who had already been informed that he would be succeeded as head of the display classified department, by Max Falk, placed in Schwartz's personnel file a memorandum sum- marizing his opinion of her. The memorandum praised Schwartz's ability, production, and sales efforts, and spoke well of her attention to business and of her knowledge of her classification. It also stated: Within the last six months, [Schwartz] has seemed perhaps less cooperative but has nevertheless taken care of her assignments in adequate fashion. Has also developed a tendency toward lateness and must be brought up sharply before it becomes a bad habit. Falk became manager of the display classified department on August 1, 1937. In September, October, and early November, he repeatedly and severely criticized Schwartz for lateness. Falk also complained of Schwartz's latenesses to Bridge, who in turn complained to Adler. At some later time, apparently in 1938, Sulzberger was informed, probably by Adler, that Schwartz had a bad late record. Although other employees in the classified display division had late records almost as bad as that of Schwartz for 1937 and worse for 1938, no complaints as to such employees were made to Adler or Sulzberger. In May 1938, Howard Stewart, manager of the respondent's retail advertising division, had a conversation with Falk. Stewart and Falk both testified that the former suggested that Falk assume responsi- bility for the classification of building supplies and contractors, then in the retail division, on the grounds that it was closely related to the real estate classification, handled in Falk's division. They further testified that Falk in turn suggested that the arts and decorations classification should be taken over by Stewart because it was allied to the furniture classification, handled in the retail division. The two men agreed to seek Bridge's approval of an exchange of the classi- fications and made a recommendation to Bridge accordingly. Bridge took the matter up with Adler, who recalled, because of Schwartz's prominence in the Guild, that she was the employee who handled the arts and decorations classification. Adler told Bridge that he had no objection to the transfer, provided it in no way affected Schwartz's employment. On May 18, 1938, Bridge addressed a memorandum to Falk and Stewart, notifying them that the exchange of classifications would become immediately effective. The memorandum also stated: This exchange of classifications appears to be for the best interests of the Times. The Arts & Antiques classification is essentially Retail store advertising so logically should be handled 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the' department responsible for other Retail store advertising. Conversely,. the advertising of Retail Building Supplies and Contractors is more nearly allied with the Real Estate classifica- tion than it is with Retail stores. Also on May 18, Falk asked Stewart if he would take Schwartz with the classification . Stewart refused on the grounds that lie was already overstaffed . Falk and Bridge then canvassed the classifica- tions available for Schwartz and decided to assign her the apartment directory. Both Falk and Bridge testified, in effect, that they decided on this classification because they considered it suitable for a woman. Falk told Schwartz of the exchange of classifications , whereupon she expressed a desire to be transferred to the retail division with the arts and decorations ' classification . Falk explained that Stewart did not want additional help. Schwartz then saw Stewart, who said there was no chance for her to be transferred; that the matter had not been provided for or even discussed; and that he already had two more persons on his staff than were needed. During the summer months Schwartz had been accustomed to solicit school advertising because of inactivity in arts and antiques. After Schwartz learned of the proposed change in her work, she asked Miss Gow, in charge of school advertising, for permission to solicit for. that classification . Gow expressed a desire to use Schwartz because of a shortage in staff caused by vacations and because of Schwartz's previous success in the school field. Gow then said she would speak to Falk about the possibility of keeping Schwartz on arts and antiques and, failing success on those lines , would ask him if she might have Schwartz. Gow did speak to Falk, but he refused her requests. . On May 19, 1938 , Schwartz protested the change in her duties to Falk and Bridge. They explained that they considered the exchange of classifications a logical step and - one to the best interests of the respondent. Schwartz agreed, but argued that she should be trans-' ferred with the arts and antiques ,classification as a sensible business procedure. On May 20, 1938 , Schwartz sent a memorandum to Falk and Bridge arguing against her separation from the arts and antiques classification and her transfer to the apartment directory , which she described as being "known to the staff as the `graveyard of good solicitors.' " Schwartz alleged that the transfer of accounts could have easily been accompanied by a transfer of personnel , and stated that she could ascribe the move only to discrimination on account of union activities. She further charged that she was being placed on the apartment directory at the time of "the Summer lull in apartment renting." THE NEW YORK TIMES COMPANY 1161 Bridge took Schwartz's memorandum to Adler, who advised him to put his reply in writing and to send for Schwartz and give her an explanation in the presence of a witness. Accordingly, on May 21 Bridge sent for Schwartz and Falk and read a point-by-point reply. In effect Bridge said that the transfer of classifications was justified and logical; that Schwartz's efficiency was not the primary consider- ation, although the linage trend in her classification was unfavorable; that the apartment directory was a good classification, which was then being handled by senior real estate salesmen; that it would complicate the plans of two division managers to transfer personnel with the classifications; that the retail department was already adequately staffed; that Schwartz's union activities had no bearing on the transfer; and that the best weeks for the apartment directory ware immediately ahead, whereas in the same period arts and antiques would be relatively less active. Thereafter Schwartz solicited advertising for the apartment di- rectory until early in October 1938, when, because of a seasonal lull in that category, she was put to soliciting accounts from real estate brokers for a "Stores for Rent" column. Because of the necessity of breaking into a new field in which she did not have preestablished acquaintances and of calling on strange accounts, Schwartz found her new duties less pleasant and more taxing than her old duties. Never- theless, Schwartz did satisfactory work on the apartment directory and as a result received commendations from her superiors. The apartment directory itself was a smaller classification in linage than arts and decoration. On the other hand, the directory showed a substantial gain in linage for 1938 as compared to 1937, whereas arts and antiques showed a loss for 1938, the downward trend having begun before the exchange of classifications. The exchange was made, also, just prior to the seasonal decline in arts and antiques linage, and at a time when the apartment directory was beginning a seasonal climb. About June 20, 1938, Schwartz had a dispute with Falk concerning the source of leads she was using for the apartment directory. The difference was adjusted when Falk, at Bridge's suggestion, instructed two other solicitors to turn over some of their accounts to Schwartz. At some later time Bridge. inquired of Falk as to Schwartz's progress. Falk said that Schwartz was doing "all right," and "showing quite definite interest." During the period when Schwartz was soliciting advertising for the apartment directory, Sulzberger asked Lane about her work on the new classification. Lane replied that she was doing fairly well. Sulzberger then said: Mr. Lane, she has to make good. We are not going to have a case. If necessary, give her the accounts that will make it positive that she makes good. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In November 1938 Schwartz was offered a position by an advertising agency to solicit accounts for it at a weekly salary of $25, with a bonus arrangement contingent on her securing a certain amount of monthly business. Schwartz untruthfully told Falk that she had an offer of a position which would pay a salary $10 higher than that she drew from the respondent ($28). Schwartz also told Falk that she would stay in the respondent's employ if the respondent met the offer, as reported by her. Schwartz testified that she did not expect the respondent to raise her salary and that her statement was inspired by a desire to avoid giving the respondent "the satisfaction of knowing that they had driven me out from their treatment of me." Falk took the matter up with Bridge, who in turn reported to Adler. It was decided that the respondent would not meet the supposed offer, and Falk so informed Schwartz. Schwartz then resigned from the employment of the re- spondent, effective December 2, 1938, and accepted the post with the advertising agency. Schwartz testified that she resigned "volun- tarily under pressure" and that she would not have resigned if she had been permitted ,to remain on the arts and antiques classification. In her position with the advertising agency Schwartz devoted the ma- jority of her time to soliciting arts and antique accounts. The circumstances of Schwartz's separation from the arts and decoration classification lend considerable support to the Trial Examiner's finding that the separation was caused by Schwartz's union activities . Schwartz was exceedingly active in both the Office Guild and the Guild. Berger, when manager of the classified display department, attempted by intimidation to influence her away from union membership and activity . The respondent 's explanation of the transfer of the classification from Schwartz is one based on a kind of academic logic, summarized in the quoted portion of Bridge's mem- orandum of May 18, 1938 , rather than on more obvious and compelling business reasons. The arts and decoration classification had originally been in the retail division and had been transferred therefrom to the classified display division in about 1933. Hence it appears that there was no absolute jurisdictional appropriateness to dictate another shift. A transfer of the account without a corresponding transfer of Schwartz disregarded Schwartz 's unusual knowledge of and connections in. the arts and antiques field, the experience she had acquired, and her good, record of production. Stewart testified that the retail division gave advertisers more "servicing" (such as the preparation of advertising copy) than did the display classified division and stated: "We have found definitely that the arts and antiques classification is not a matter of advertising selling. We have found it is a matter of servic- ing." Bridge testified, however, that he believed that differences in amount of "servicing" would depend on the needs of the particular advertiser and not on the division handling the account, and Stewart's THE NEW YORK TIMES COMPANY 1163 theory that "servicing" is an essential in the arts field is inconsistent with his own testimony that "a child 12 years old." -could write the necessary copy. The lack of business reason for the transfer is also emphasized by the subsequent history of the arts and decoration classification. After the transfer, the classification was handled by two junior salesmen, one of whom subsequently left, under the super- vision of a star senior salesman, who personally took the three principal accounts. Stewart testified that "we probably spend more on it.than we take out of it, but• we are giving a very generous service." In view of the lack of profit, it seems unimportant that, as Stewart testified, the respondent has obtained a larger percentage of the adver- tising in the field.33 Nor can we accept the emphasis placed by counsel for the respondent on the fact that at the time of the transfer the arts and decoration classification was entering a period of seasonal decline, whereas the apartment directory was entering a period of incline. The argument that this circumstance shows a favorable treatment of Schwartz carries some weight, but its force is largely spent if it be recalled that Schwartz had been accustomed to solicit school adver- tising during the summer months. There are also certain factors which tend to support the Guild's view that there exists a pattern of discrimination against the employees named in the complaint and an attempt to "build a record" against them. It is a fact that of the three employees most instrumental in forming and promoting the Office Guild, all of whom were in the dis- play classified division, two were eventually discharged and the third transferred to other work. It is also a fact that the late record of Schwartz, a minor employee, was called. to the attention of the respond- ent's two top executives, Sulzberger and Adler, whereas late records of other employees in the same division were not so reported, even though such records were worse over the period of 1937 and 1938 than. Schwartz's record. On the other hand, there is no evidence to link Berger's antiunion bias with Stewart or Falk, who were the moving agents in the exchange of classifications. Transfers of 'advertising classifications are also fairly common in the respondent's advertising department, and there is no fixed practice of making corresponding shifts in personnel, the evidence indicating that the solicitors sometimes go with the classifi- cation and sometimes do not. Furthermore, before Schwartz was assigned to the apartment directory, that classification had been handled by senior salesmen, although these had not, apparently, 33 Stewart's testimony on this point is not entirely clear. The linage in the classification for 1938 was less than for 1936 and 1937. We interpret Stewart's testimony as meaning that the respondent carried-an increased proportion of the total advertising in the category carried by itself and its competitors. We concur in Stewart's view that such an increase affords a more accurate business valuation than uncompared changes in linage. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD devoted their full time to it. Although Schwartz's separation from arts and antiques proved to be, to the detriment of that classification as a source of profit, her subsequent work was to the advantage of the apartment directory, which broke its previous linage records. The inconvenience experienced by Schwartz because of the change in her duties arose, essentially, from the necessity of calling on unfamiliar accounts, and was, therefore, within the normal routine of a salesman. The assignment to her by Bridge and Falk of extra accounts contra- dicts an assumption of a desire on their part to see her fail. In addi- tion, Adler and Sulzberger both expressed concern for her future to her more immediate superiors. That Schwartz's latenesses were reported to Adler and Sulzberger was not inconsistent with what appears to be the respondent's explanation-that the subordinate executives hesitated to take direct disciplinary action against Schwartz on their own initiative because of her-union prominence. Finally, Schwartz's offer to stay in the respondent's employ if it raised her salary militates somewhat against the alleged distastefulness of her new duties. After weighing the various considerations, we are of the opinion that on the whole the evidence does not sustain the contention that Schwartz's work was changed for union reasons. We shall, therefore, dismiss the allegations of the complaint concerning Schwartz. G. Coercion of Michael J. Lawrence In 1937 Michael J. Lawrence was assistant to Isaac Gilbert in the auditing of cable and telegraphic charges. In May of that year Lawrence became a member of the Office Guild. On May 28, 1937, he was elected second vice chairman of The New York Times Unit of the Office Guild. This fact was reported in the June 11, 1937, issue of the Office Guild's News Letter, which was freely distributed in the respondent's auditing department. Weinstock, the respondent's auditor, saw the News Letter and the item concerning Lawrence's election to office. On June 14, 1937, Lawrence began his annual 2 weeks' vacation. At about the same time, Gertrude Burrell, another employee in the auditing department, notified the respondent of her intended resigna- tion. The impending vacancy made necessary some shifts in person- nel. Finch, head of the editorial auditing division of the auditing department, spoke to Weinstock on the subject and suggested that Lawrence be transferred to doing pay-roll work. Weinstock told Finch that he had seen that Lawrence had been elected to an office in the Office Guild and said that he would like to talk to Lawrence before turning over to the latter any confidential pay-roll work. He asked Finch to call Lawrence in for a conference. - THE NEW YORK TIMES COMPANY 1165 Lawrence conferred with Weinstock on June 25, 1937, as requested by Finch. Weinstock told Lawrence that a vacancy was to occur which he thought Lawrence might fill. Weinstock said that he did not feel that it would be fair to the respondent to have Lawrence. placed in the position, which was of a confidential nature, because Lawrence might be called upon as a union officer to divulge some of the confiden- tial information involved. Weinstock also said that he did not object to Lawrence's being a member of the Office Guild and that if Lawrence remained as active in that organization as theretofore, he might, nevertheless, in time be advanced to positions other than the position then in question. Lawrence replied that at a meeting held the night before the Office Guild had voted to merge with the Guild, and that as a result his position as an officer no longer existed.34 Weinstock said, "How do I know that you will no longer be an officer?" Lawrence replied, "If my name comes up for nomination, I will not accept it." 35 After this conference Weinstock told Finch that he was satisfied to have Lawrence assume the contemplated new duties. Finch then left for his vacation. On Finch's return, Lawrence was, in July 1937, transferred to duties involving the handling of pay rolls. On or about October 1, 1937, Lawrence was transferred back to his old position on the cable desk with an increase in salary from $25 to $28 a week. During.the period in which Lawrence was working on pay rolls, he was nominated for membership on a committee of the Guild, but withdrew on the plea that he had too much work in the evenings. We credit Lawrence's testimony that this withdrawal was caused by his apprehension that Weinstock might, otherwise, have felt that Law- rence had violated his pledge. In 1938, however, some time after his transfer back to the cable desk, Lawrence accepted a position as member of the organizing committee of The New York Times Unit of the Guild. In our opinion, Weinstock's conversation with Lawrence was intended to induce Lawrence to relinquish his union office and activity. We cannot accept a view that Weinstock's true concern was to insure the fidelity of an employee and to safeguard confidential records. Weinstock testified that he would not have called Lawrence in if Lawrence had not been an officer of the Office Guild. We see no reasonable basis for a reluctance to trust a union officer combined with 88 Lawrence subsequently learned that he was mistaken and that his position was to continue until the merger actually took effect. +8 Our account of this conversation is based on Lawrence 's testimony . Weinstock contradicted Lawrence's version. He testified that he told Lawrence that a confidential position was open and that he had no objec- tion to any of the employees being a member or officer of the Office Guild. Weinstock further testified that he asked Lawrence if he would not divulge confidential information if called on to do so as a union officer, and that Lawrence assured him he would keep the confidence of the respondent. In accordance with the find- ings of the Trial Examiner and in view of the unconvincing nature of Weinstock's testimony in connection with the discharge of Grace Porter and the transfer of Isaac Gilbert , we credit Lawrence 's testimony. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . a willingness to trust the same person as an ordinary union member. Furthermore, the job Lawrence held before his conversation with Weinstock was of a confidential nature. Finally, we take into con- sideration the similarity between the respondent's conduct toward Lawrence and that shown toward Lissemore, as subsequently de- scribed herein. On the entire record we find that the respondent,,by means of the described statements of its executive, Weinstock, to Lawrence, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. H. Coercion of Una Lissemore Une Lissemore was employed by the respondent in December 1926. After working 4 months as a typist in the personnel department, she was transferred to the editorial auditing department, where she com- bined typing with clerical work on the respondent's personnel and pay-roll records. Her work was confidential in nature. When Gertrude Burrell left her position with the respondent on July 15, 1937, a substantial amount of Burrell's work, also connected with pay rolls, was distributed to Lissemore. The duties so reassigned were more important than Lissemore's previous duties and gave her access to a greater quantity of confidential information. Lissemore's activities in connection with the B. S. A. U. have already been described. She also joined the Office Guild when it started and became secretary of The New York Times Unit of that organization. On July 16, 1937, the Fortnightly News Letter, published by The New York Times Unit of the Guild, reported that Lissemore, along with others, had been nominated for delegate to the Representative Assembly of the Guild. Some time later, Weinstock called in Finch and said he had noticed the report. Finch testified that Weinstock commented' on some recent complaints from various editors of leaks of pay-roll information and asked Finch if he was quite sure of Lisse- more's honesty. Finch further testified that he replied that he was certain of Lissemore's honesty, but would confirm his belief by having a talk with her. Weinstock's testimony as, to this conversation is in general accord with Finch's version. Weinstock further testified that he spoke to Finch, after reading of Lissemore's election to office, because he wished "to find out whether the operations of our pay roll department were going to be considered confidential, in spite of the active work in the Guild"; also, that he explained to Finch that "we had no objection to any person in the auditing department being a member of the Newspaper Office Workers' Guild and . . . we had no objection to any member of the auditing department being an officer' of the Newspaper Guild Workers' Guild .. . . our only concern was THE NEW YORK TIMES COMPANY 1167 to see that persons that held confidential positions should realize that . . . the confidence imposed in them in that position should not be violated." Finch spoke to Lissemore after his conference with Weinstock.38 Lissemore testified as follows regarding the conversation between Finch and herself: Mr. Finch said he wanted to speak: to me, that lie had been told not to speak to me about it, but he did want to let me know how things were; that he had seen my name on this list and he wanted me to know that in my position, working on the pay roll, and such, that Mr. Weinstock did not want anyone in the audit- ing department to hold a position in the Newspaper Guild. So I told him it did not make any difference to me. It made no difference what work I was doing with the Times; that my position was entirely apart from any connection with the Guild. He said he understood it, but perhaps the fourteenth floor 37 would not, perhaps, understand it that way. He said that they took these lists and went over them and found out where they worked, and they could see to it that I was taken off this payroll work. So I said that I did not see what difference it made, and, he said, "Well, put yourself in Mr. Sulzberger's position. Would you employ anybody that was a member of the Guild?" I said I could not very,well do that. I was not Mr. Sulzberger. He said I should imagine I was. I said that the two things were so far apart to me that I just could not do it. So he said, "Well," he said, "anyway Mr. Weinstock did not mind anyone being in the Guild." He said that he was not opposed to anyone being in the Guild, but he did not want anyone in the auditing department to hold an office, and I said that was sort of silly, and he went on to say could I say that I would not be active, and f said no. Q. What was that? A. That I would not be active, could he say to Mr. Weinstock or someone that r would not be active in the Guild. I said I did not think so. And then I said, "It would not be right for me to belong, and then just become inactive, just because I was told to," and that is how we left it, how it ended. I could not promise not to be active. 36 The record does not establish the dates of these conferences, except as being between July 16 and No- vember 22,1937. Finch set the time in July 1937. Lissemore testified that Finch spoke to her in September 1937. Weinstock testified that his conversation with Finch occurred in the fall of 1937. 67 The reference is to the respondent's major executives, who have their offices on the 14th floor of the respondent's building. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finch contradicted Lissemore's account in its entirety and testified as follows to what was said: I told Miss Lissemore that I had noted the notice in the bulle- tin of her nomination to office, and I asked her if she felt that her obligations to the Guild as an officer would conflict in any way with her obligations to the Times to keep all matters confi- dential. She assured me that there. would be no conflict, and that there was nothing for me to be concerned over. After his conversation with Lissemore, Finch reported to Wein- stock.' Finch and Weinstock' testified that Finch said he had inter- viewed Lissemore and was convinced from her assurances that there was no basis for a fear that she would divulge confidential information. On October 1, 1937, Lissemore's salary was raised from $30.60 to $34. On November 10, 1937, Lissemore was elected a delegate's alternate or reserve alternate to the Representative Assembly of the Guild. On November 22, 1937, Lissemore wrote as follows to a Mr. French, who was connected with the Guild: Please do not have my name appear in any news letters or release. It is most important that under no circumstances must my name show for any election of office. I will explain this when I see you. Will you please drop me a note so that I'll know you have received this. After her conversation with Finch, Lissemore went to meetings of the Guild less frequently than before. When the respondent's counsel pointed out that she had been elected a delegate's alternate or reserve alternate at a time placed by her testimony as subsequent to the conversation, Lissemore testified: "Yes, but that is because I was up for the office at that time. I could not back out then." In the described conflict between the testimony of Lissemore and that of Finch, we credit the account given by Lissemore. In doing so, we take into consideration the findings of the Trial Examiner; the similarity of this episode in pattern and attempted justification with that involving Michael J. Lawrence; the hostility to. unions shown by Weinstock in other connections; his earlier use of Finch for anti-union purposes; and the fact that Lissemore's letter to French and her lessened attendance at union meetings were natural products of intimidation. We are of- the opinion that Finch's remarks to Lisse- more were in accordance with expressed or implied instructions from Weinstock. In view of the tenor of these remarks and for reasons similar to those advanced in our discussion of Weinstock's coercion of Lawrence, we are also of the opinion that Weinstock and Finch were interested in discouraging Lissemore from holding office and being active in the Guild, rather than in safeguarding the respondent's confidences. THE NEW YORK TIMES COMPANY 1169 Upon the entire record we find that the respondent, by the action of its supervisory official, Finch, in intimidating Una Lissemore on the instructions of its executive, Weinstock, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the hearing counsel for the Board contended that a transfer of Lissemore in 1938 and certain transfers of Louis Berg resulted from discrimination for union activity. The Trial Examiner found in his Intermediate Report that such transfers were caused by changes required by the reorganization of the auditing department. No exceptions to these findings have been filed. We have reviewed the evidence as to the transfers and concur in the Trial Examiner's findings. Since no exceptions to these findings were filed, we affirm them without detailed discussion.38 1. Coercion of David D. Goldstein David D. Goldstein was employed by the respondent in September 1933, since which time he has worked in the school promotion depart- ment, a unit of the respondent's circulation department. Goldstein's duties consist of interviewing high school principals and teachers for the purpose of having them order copies of The New York Times for classroom uses, obtaining the appointment of student representatives to handle circulation in their respective schools, addressing students, and otherwise endeavoring to encourage use of The New York Times in schools. Goldstein's appointment, originally on a trial basis but subsequently made permanent, was at a salary of $20 a week. At the end of 2 or 3 months his salary was increased to $25. In December 1936 or January 1937, he received a raise to $30 a week and has since continued to receive this compensation. Goldstein has easily the outstanding record for productivity in his department, being the leader for each year for which statistics were placed in evidence. The statistics showing the total school circulation, the amount obtained by Goldstein, and that obtained by the next highest employee are given below: Year Total circu- Goldstein's Next highest lation circulation 1935 --------------------------------------------------------- 1,215,520 287, 214 255,668 1936--------------- ---------------------------- 1,674,995 521, 694 290, 304 1937-------------------------------------------------------- 1,809,580 573, 846 353, 595 1938 2,277,659 753, 327 534, 526 1939--------------------------------------------------------- 1,197,819 359, 598 39 310, 327 39 Of. Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity, Local #133, 11 N. L. R. B. 1397 ; Matter of Mike Bierner , doing business as Bierner & Son and United Flatters. Cap and Millinery Workers ' International Union, Local .57, 20 N. L. R. B. 673. 39 The figures are for the school years ending in June of the respective calendar years shown and beginning in the previous September , except that the 1939 figure relates to a period ending January 31 , 1939 . Statistics for the 1934 school year do not appear in the record. 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goldstein also introduced several new promotional ideas which proved highly successful, and received various commendations from his superiors . At the time of the hearing Goldstein had the most seniority in his department. In April 1937 Goldstein joined the Office Guild, being the first member of that organization from his department . Subsequently he was elected first vice chairman of The New York Times Unit of the Office Guild. Goldstein also secured five or six members for the Office Guild from his department and other units of the .circulation depart- ment. After the Office Guild merged with the Guild, Goldstein was, in August or September of 1937, elected a delegate to the Guild's Representative Assembly. Goldstein also periodically distributed Guild literature in his department . His union activity was known to Schleigh, manager of the circulation department. In September 1937 the school promotion department was merged with the smaller college promotion department. Alice H. Palmer, formerly head of the college department , became manager of the merged departments, and F. Harry Anspacher, previously the manager of the school department, left the employment of the respondent. About 2 weeks after this merger, Goldstein told Schleigh that he thought he was the logical successor to Anspacher. Schleigh replied, "I make all the decisions around here, and if you don't like it, you can quit." Goldstein then asked if he could be placed in some kind of an advisory capacity to Palmer. Schleigh refused the request. Goldstein then asked for a raise, which Schleigh refused A few days after this conversation Goldstein saw Sulzberger, alleged that he had been 'done an injustice by Schleigh in being overlooked for the position of manager of the school department , and asked for an investigation. Sulzberger referred him to Harold Hall, Adler's assistant . Hall told Goldstein that he would investigate and let Goldstein know. Goldstein did not thereafter bear from Hall. On October 28, 1937, Palmer sent Goldstein a memorandum reading: I have taken your request for an increase in salary up with Mr. Schleigh. We sincerely appreciate the excellent piece of work you are doing, but regret at this time that no increase can be put through. As I have told you formerly, if any do go through at Christmas time, you will certainly be the first one to be considered. Despite the tenor of this note, Goldstein did not subsequently receive any raise in salary, although others in his department did. Thus Alice H. Raynor received an increase of $5 to $35, coincident with her transfer from school to college work ; Miss K. Sheenan was raised $5 to $30 when she was similarly transferred; Miss Seddon, a member of the Guild, was raised $5 to $30; John S. Booth was raised $10 to THE NEW YORK TIMES COMPANY 1171 $40. At the time of the hearing, however, no one doing the same 'kind of work as Goldstein was receiving more than a salary of $30. In April 1938 Alice H. Palmer was dismissed, and the school and college departments were separated as before. This time Patrick J. Reynolds was appointed head of the school department. Reynolds, who was not a member of the Guild, had at one time worked in the school department for about 5 or 6 months; just previously, however, he had been head of the respondent's home delivery department and had, for 4 months before Palmer's dismissal, also helped in the school department. When Reynolds learned of this appointment, he told Goldstein: I know it must be a bitter blow to you. I know damned well you deserve the job, everybody does. I will try to do the best I can. If anybody can get an increase for you through Schleigh. I can. Goldstein then attempted to see Adler, but was told by the latter's secretary that Adler thought he should see Schleigh first. Schleigh was away at the time, but Goldstein saw him on his return 4 weeks later and asked him why Reynolds had been appointed manager. Schleigh told Goldstein that he did not give a "God damn if Mr. Ochs 40 hired you or not," and said he knew all about Goldstein's visits to Sulzberger and Hall. He added: "You have done a good job, but there are two damned good reasons why Reynolds is head of the school department and not you. Number one is that Reynolds has been here longer than you, be has seniority; two, he has had greater school experience, that is, greater experience in my department than you." Goldstein replied that both of these reasons were false, and Schleigh called him "a God damned liar." Goldstein finally charged that he had been discriminated against because of his membership in the Guild, whereupon Schleigh said, You know God damned well you have not been discriminated against for Guild activity, and besides, when I talk Guild, I talk Guild with the publisher, Mr. Sulzberger, and no one else." That week Goldstein saw Adler, complained that the reasons given by Schleigh for preferring Reynolds as the department head were untrue, and asked Adler to investigate. Adler conceded that Gold- stein might have been done an injustice, but said: "This is a big business, son. I appointed Mr. Schleigh to an important position as circulation manager, and I cannot overrule his appointments; I cannot overrule his decisions." Adler then told Goldstein that he was still a young man and that some day he would be glad he worked for the respondent and would be able to capitalize on his position "on the 10 The reference is to Sulzberger's predecessor as head of the respondent. The significance of the statement is obscure and is not clarified in the record. 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside." He then advised Goldstein to "forget about it" and promised to investigate Goldstein's claims and let him "know." However, Goldstein did not at any subsequent time hear from Adler. In August 1938 Reynolds informed Goldstein that Schleigh had requested that Goldstein should not speak to other members of the school staff on office time, allegedly because it was not good for the morale of the department. It was, however, a general custom, of which Reynolds had earlier indicated his approval to Goldstein, for members of the department to converse with each other in the office about their work and to exchange ideas. Goldstein had never before received such instructions, and there is no evidence that similar orders were given to the other employees. In fact, so far as Goldstein knew, no others were so limited at this time. Goldstein himself did not comply with the order when other employees approached him for information and gradually resumed talking to such others without further objection from Reynolds. We find that Goldstein was the only employee in the department placed under the described restric- tions. In November 1938 Goldstein asked Reynolds to make an appoint- ment for him with Schleigh so that he could ask for a raise in salary. Reynolds said he would arrange an appointment but asked Goldstein to write a memorandum explaining why he deserved an increase. Reynolds also said, "Dave, would you like me to give you a neutral opinion of why you are not sitting in my chair as' head of the school department?" Goldstein expressed anxiety to hear this opinion, and Reynolds continued: The trouble with you, Dave, is that you have been in too much activity. 'It has changed your personality. The struggle has changed your personality. You don't smile enough. You don't laugh enough. My God, when I came to The Times here in 1934, you were looked up to as-. the best man in the department. Everyone came to you for advice, and it was recognized that you would be the head of the department some day. I know that the activity which has changed your whole personal set up is respon- sible for management not appointing you to the position which I now hold. Goldstein then told Reynolds that "you have heard of the Wagner .Act" and pointed out that his production had increased each year. Reynolds admitted the increases in production, and the conversa- tion ended. 41 41 Our account of this conversation , as well as of others described in this section, is based on Goldstein's uncontradicted testimony. THE NEW YORK TIMES COMPANY 1173 On November 30, 1938, Goldstein addressed to Reynolds a mem- orandum citing his achievements in the department. The next day he saw Schleigh. Schleigh said that he was getting tired of hearing about Goldstein's " plight" and of Goldstein's asking for wage increases that Goldstein would "never, never" get a raise, that anybody could do Goldstein's job, that instead of selling the Times Goldstein was selling himself, and that if Goldstein had done good work, it was appreciated. Schleigh added: If I have to give you an in crease, somebody else is going to ask for an increase. I might as well close up the department. This department is of no damned use to us. It costs us a lot of money, and that is all you are going to get, thirty dollars a week. Schleigh also remarked during this conversation that the school department was a luxury , and that "we are doing the teachers a favor and not the Times." The Guild maintains that Goldstein's failure to obtain promotion or further increases in salary was the result of discrimination against him because of his union activities . Unquestionably , the evidence raises a strong suspicion to this effect . However, there . is no showing of any rule or custom by which the respondent bases promotions to supervisory positions on seniority or on success as a salesman. Nor is the evidence inconsistent with a theory that Goldstein had reached the salary roof for his duties, regardless of his superiority to other employees who also reached that roof. Finally, the Trial Examiner, who observed Goldstein on the witness stand, referred in his Inter- mediate Report to Goldstein 's "youthfulness and his self-assurance" and expressed the opinion that the respondent might have believed Goldstein to be "lacking in executive qualifications considered neces- sary in a department head." For these reasons we are of the opinion that the evidence does not support a finding that Goldstein was not promoted in salary or position for union reasons. However, no explanation appears for the respondent's instructions in August 1938, requiring Goldstein to refrain from conversation with other employees on office time. In view of Goldstein 's outstanding success as a salesman, his prominence and activity in the Office Guild and the Guild, Reynolds' hostility to the Guild, and the fact that the respondent addressed these instructions to Goldstein alone, we find, as did the Trial Examiner, that such instructions were inspired by a desire to discourage Goldstein 's union activity . It is also apparent that Reynold 's lecture to Goldstein in November 1938 was •a thinly veiled and coercive attempt to intimidate Goldstein into giving up union activity and to warn him that such activity was prejudicial to his chances of advancement . We find, therefore, that by the dis- 323429-42-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminatory instructions referred to and by the described conduct of its supervisory employee, Reynolds, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above,' occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among" the several States and with foreign countries and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. We have found that the respondent has discriminated in regard to Grace Porter's. hire and tenure of employment. We shall, therefore, order the respondent to offer to Grace Porter immediate and full rein- statement to her former or a substantially equivalent position, with- out prejudice to her seniority and other rights and privileges. The respondent contends that Porter is barred from reinstatement because of lathes arising from the length of time elapsing between the date of her discharge and the date on which the charge naming her was filed. This contention is without merit.42 The respondent also contends that Porter may not be reinstated, on the basis that Porter obtained regular employment substantially equivalent to her employment with the respondent. We find, however, that Porter did not obtain such employment. Moreover, even if she had done so, she would not thereby be barred from reinstatement.3 Although, as we have seen, the delay in filing the charge naming Porter does not bar her reinstatement, nevertheless, in view of the fact that 3 years elapsed after her discharge until such charge was filed, we shall not direct the payment of back pay to her in our usual manner, but shall order the respondent to make her whole by payment to her of an amount equal to that which she would have earned as wages from January 14, 1939, the date on which the charge was filed,44 to the date of the offer of reinstatement, less her net earnings during such period.41 42 Matter of Colorado Milling & Elevator Company and Denver Trades and Labor Assembly , 11 N. L. R. B. 66; Matter of Charles Banks Stout , et at. and Federal Labor Union No. 20028, affiliated with the American Federation of Labor, 15 N. L. R. B. 541. +3 Matter of Eagle-Picher Mining & Smelting Company, a corporation , and Eagle-Picher Lead Company, a corporation, and International Union of Mine, Mill & Smelter . Workers, Local Nos. 15, 17, 107 , 108, and 111. 16 N. L. R. B. 727. THE NEW YORK TIMES COMPANY 1175 We have found that the respondent has discriminated in regard to the hire and tenure of employment of Fred Jaeger. We have seen, however, that Jaeger was not fitted for the position from which he was discharged. It would not effectuate the policies of the Act to order Jaeger's reinstatement to such a position. We have also seen that Berger's efforts to eliminate union activity resulted in the destruc- tion of the probability that Jaeger would be transferred to another post. Accordingly, we shall order the respondent to offer Jaeger employment, without prejudice to his seniority or other rights and privileges, in a position which he is qualified to perform, which affords the same salary as that from which he was unlawfully discharged, and which corresponds in dignity to other positions affording such salary. We shall, likewise, order the respondent to make Jaeger whole for any loss of pay be may have suffered by reason of his dis- charge. Since the Trial Examiner found that the respondent had not discriminatorily discharged Jaeger, we shall order the respondent to make Jaeger whole for such loss by payment to him of a sum equal to the amount he would normally have earned as wages from the date of his discharge until the date of the Intermediate Report, and from the date of our order to the date of the offer of reinstatement, deducting first his dismissal pay and then his net earnings during such periods.41 We have found that the respondent engaged in unfair labor prac- tices by transferring Isaac Gilbert to an inferior position. We shall, therefore, order the respondent to offer Gilbert immediate and full reinstatement to the position from which he was unlawfully trans- ferred, without prejudice to his seniority and other rights and priv- ileges. Since Gilbert was transferred at the same salary and since it appears that the respondent did not discriminate against Gilbert in the matter of wages, we shall not enter an order of back pay for Gilbert. Finally, we shall order the respondent to take certain other action necessary to effectuate the policies of the Act. Since we have found that the respondent did not engage in unfair labor practices by its discharge of Leonard H.' Goldsmith, or by its 44 Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No. 259, 8 N . L. R. B. 944 ; Matter of Washougal Woolen Mills and Local 147, Textile Workers Union of America, 23 N. L. R. B. 1. 15 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 elsewhere than for the respondent, which would not have been incurred but for the unlawful discrimination and the consequent necessity of the employee's seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brother- hood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Locai 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 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. 45 Matter of E. R. Hafelfinger Company , Inc. and United Wall Paper Crafts of North America , Local No. 6, IN. L. R. B. 760. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transfer of Jane Schwartz ,- we shall dismiss the allegations of the complaint to that effect. 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. Newspaper Guild of New York is a labor organization, and Newspaper Office Guild of New York and Bookkeepers, Stenographers and Accountants Union, Local 12646 , were labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Grace Porter and Fred Jaeger, and each of them, thereby dis- couraging membership in labor organizations , the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 3. By transferring Isaac Gilbert on April 18, 1938, for his union membership and activity, and by otherwise interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 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 respondent has not-engaged in unfair labor practices , within the meaning of Section 8 (3) of the Act, by discharging Leonard H. Goldsmith, or within she meaning of Section 8 (1) of the Act by trans- ferring Jane Schwartz to new duties on May 18, 1938. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The New York Times Company , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of its employees by in any manner discriminating in regard to the hire, tenure of employment, or terms and conditions of employment of any of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. TIE NEW YORK TIMES COMPANY 1177 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Grace Porter immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority and other rights and privileges; (b) Offer to Fred Jaeger immediate employment without prejudice to his seniority and other rights and privileges, in a position which he is qualified to perform, which affords the same salary as that from which he was discharged, and which corresponds in dignity to other positions affording such salary; (c) Offer to Isaac Gilbert immediate and full reinstatement to the position from which he was transferred on April 18, 1938, without prejudice to his seniority and other rights and privileges; (d) Make whole Grace Porter for any loss of pay she may have suffered by reason of her discriminatory discharge, by payment to her of a sum of money equal to that which she would normally have earned as wages from January 14, 1939, to the date of the respondent's offer of reinstatement pursuant to this Order, less her net earnings47 during such period; deducting, however, from the amount otherwise due said Grace Porter monies received by her for work performed during such period upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments, which supplied the funds for said work-relief projects; (e) Make whole Fred Jaeger for any loss of pay he may have suffered by reason of his discriminatory discharge by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to March 22, 1940, the date of the Trial Examiner's Intermediate Report, and from the date of the Order herein to the date of the respondent's offer of em- ployment pursuant to this Order, deducting first his dismissal pay and then his net earnings 48 during such periods; and deducting, further from the amount otherwise due said Fred Jaeger monies received by him for work performed during such periods upon. Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal. State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (f) Post immediately in conspicuous places at its plant and offices in New York City, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from 47 See footnote 45, supra. 48 See footnote 45, supra. 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; (3) that the respondent 's employees are free to become or remain members of Newspaper Guild of New York and the respondent will not dis- criminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Second 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 engaged in unfair labor practices by discharging Leonard H. Goldsmith and by transferring Jane Schwartz. MR. EDWIN S. SMITH, concurring in part and dissenting in part. The principal opinion avoids making any finding as to whether Jaeger's transfer to the advertising department was discriminatory. It is my belief that the evidence establishes that the transfer was itself an unfair labor practice , and I would make a finding to that effect even though I also believe that Jaeger's discharge was dis- criminatory . The basis for this belief rests largely on matters analyzed in the principal opinion itself, namely: the respondent's bad faith in transferring Jaeger to a job at which he could not possibly succeed; the circumstances that although Jaeger had for many years served in the same position and engaged in various outside activities his serious difficulties with his superior arose only when he became active in the Guild; the fact that the disciplines imposed by Hughes upon Jaeger were of a nature to impede his union actions ; and the "shown similarity in pattern between the events in the business news depart- ment and those in the advertising department ." In addition, the unjustified nature of the complaints that Jaeger disturbed men at work in the city room and the sports department indicates that the respondent was predisposed to attribute fault to Jaeger merely because he engaged in union activity . It is true that Jaeger was guilty of certain delinquencies while he was in the - business news department . This fact, however, does not resolve the issue involved, which is whether Jaeger's transfer was the outgrowth of these delin- quencies or of a desire to discourage membership in the Guild. The weight of the evidence establishes , I believe, that such a desire existed and that it was the fundamental cause of Jaeger's difficulties with Hughes and of Jaeger 's transfer . It would follow from a finding of this nature that the Board should require the respondent not merely to offer Jaeger employment of the nature described in the Order but to offer him reinstatement to the position from which he was trans- ferred in October 1936 or to a substantially equivalent position. THE NEW YORK TIMES COMPANY 1179 I am also of the opinion that the respondent violated Section 8 (3) of the Act by discharging Leonard H. Goldsmith. Goldsmith, though careless in his work, was extremely successful in obtaining business. That the latter circumstance far outweighed the former before Goldsmith became active in the Office Guild is shown by the fact that the rate of Goldsmith's salary increase was, as Berger testified, greater than that of almost any other salesman in the display classified division. These increases were recommended by Berger. Yet, after Goldsmith became active in organizing the office workers, Berger recommended Goldsmith's discharge, thereby shifting emphasis from Goldsmith's productivity to alleged violations of office rules. . Berger's actions thus afford an obvious parallel to his change in attitude toward Jaeger. Still another parallel exists in the low ratings which Berger gave to Goldsmith in "cooperation and loyalty" and "attention to duty" after Goldsmith became active in the Office Guild. The record demonstrates, in my opinion, that Berger attempted to build up in the case of Goldsmith, as he did in the case of Jaeger, and for the same anti-union reasons, a misleading record of delinquencies. The falsity of Berger's ratings of Goldsmith finds particular emphasis at one point. In January 1937, Berger gave Goldsmith a B in "produc- tiveness." On July 28, 1937, Berger rated Goldsmith C in the same category. Yet the evidence establishes that Goldsmith's linage in the boats and accessories classification for the first 7 months of 1937 exceeded his linage for the comparable period of 1936 and increased the respondent's leadership over its two principal competitors in the field. Berger's testimony attempted to justify the drop in rating on the basis that boat linage had dropped in June and July of 1937 both as compared to those 2 months in the previous years and as compared to the linage of the respondent's competitors. However, the drop in linage was due to exceptional circumstances over which Goldsmith had no control, for which he was not at fault, and which he had explained to Berger. Furthermore, the ratings made in July.1937 obviously were intended to cover the entire period beginning with January of that year. In view of Berger's anti-union, activities and of the absence of any other reasonable explanation, I conclude that the lowering of Goldsmith's rating is attributable to Goldsmith's beginning of his union activity in April 1937. Berger was demoted from his position as manager of the display classified division before he was able to bring to fruition his plans to get rid of Goldsmith on the basis of the misleading record. However, Berger left behind him in Goldsmith's personnel record the written indicia of the false record. These caused Falk, Berger's successor, to "investigate" Goldsmith, according to Falk's own testimony. Since the "investigation" led to Goldsmith's discharge, Berger's anti-union 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efforts were a direct cause of the discharge. Furthermore, Skelly's memorandum, on which Falk heavily relied, incorporated some of Berger's critical memoranda which were part of the false record. Also, Berger had by addressing criticisms of Goldsmith to higher executives of the respondent prepared the latter to accept an unfavor- able estimate of Goldsmith. Thus, even conceding that Falk acted in good faith-and the unobjective nature of his "investigation" might well lead to another conclusion-it appears. that Goldsmith's discharge was caused by Berger's hostility to employee organization. For these reasons it appears to me that the respondent discriminated in regard to Goldsmith's hire and tenure of employment. In all respects other than those indicated I concur in the foregoing findings, conclusions; and order. In view of the position of the other members of the Board with respect to Jaeger's transfer, I also concur in that part of the order relating to the reinstatement of Jaeger. MR. WM. M. LEISERSON, concurring in. part and dissenting in part: I am in agreement with, that part of the decision holding that "the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, by discharging Leonard H. Gold- smith, or within the meaning of Section 8 (1) of the Act by transferring Jane Schwartz to new duties on May 18, 1938." I also agree that supervisory officers of the respondent made state- ment to employees which had the effect of interfering with, restrain- ing, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act and that the respondent has thereby engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. I do not agree that the respondent was guilty of any unfair labor practices in connection with its negotiations with the Guild as found in Section III A of the decision. I do not agree that the transfer of Gilbert on April 18, 1938, was due to his union membership and activity. He is getting the same salary in the work to which he was transferred as lie did at his previous job, and I am not convinced that the change was a demotion. The Trial Examiner in his Intermediate Report recommended that the complaint pertaining to Jaeger's transfer and discharge by the respondent should be dismissed. I would so order. I think the complaint should not have been amended to include Grace Porter among those alleged to have been discriminatorily dis- charged. Porter was a. confidential secretary, and she was dismissed in January 1.936. The charge in the present case was filed in Novem- ber 1937, and there were four amended charged filed subsequent to this date. None of them included Porter. The complaint was issued in December 1938, and Porter was .not included in this. It was not until January 1939, 3 years after Porter's dismissal that the com- plaint and the charge were amended to include Porter. She was THE NEW YORK TIMES COMPANY 1181 employed at the time at wages higher than she had received on the Times. Her employer suspected her of having some connection. with a communist unit on the Times. I am of the opinion that the National Labor Relations Act does not prevent an employer from discharging a confidential secretary whom lie does not want to keep because he suspects her of communist connections.'