Express Publishing Company

National Labor Relations Board - Board Decisions

Jul 28, 1939

13 N.L.R.B. 1213 (N.L.R.B. 1939)

In the Matter of EXPRESS PUBLISHING COMPANY and SAN ANTONIO
NEWSPAPER GUILD
Case No. C-1071.-Decided July 28, 1939
Newspaper IndustaU-Interference , Restraint. or Coercion : misrepresenting
terms and purposes of the Act to employees-Unit Appropriate for Collective
Bargaining: city editors , reporters , copy-desk men and rewrite men, artists,
photographers , copy boys and librarians , society editors and writers, and
sports editors and writers employed by respondent in the editorial departments
of both its newspapers ; stipulation as to-Representatives : stipulations as to-
Collective Bargaanng : meaning of ; negotiations in good faith ; meeting with
representatives but with no bona fide intent to reach an agreement ; counter-
proposals , failure or refusal to make.
Mr. L. N. D. Wells, Jr., for the Board.
Mr. Leroy G. Denman, of San Antonio, Tex., for the respondent.
Mr. Frank G. Ragsdale, of San Antonio, Tex., for the Guild.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by San Antonio
Newspaper Guild, herein called the Guild, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Sixteenth Region (Fort Worth, Texas), issued its complaint
dated September 22, 1938, against Express Publishing Company,
San Antonio, Texas, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. A copy of the complaint, accompanied by notice of
hearing, was duly served upon the respondent and the Guild.
The complaint alleged in substance that the respondent had made
certain statements to its employees for the purpose of discouraging
membership in the Guild and had refused to bargain collectively with
the Guild as the exclusive representative of its employees in an ap-
propriate unit although the Guild had been designated by a majority
13 N. L. R. B., No. 115.
1213
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such employees as their representative for the purpose of collective
bargaining. On October 3, 1938, the respondent filed its answer,
denying that it had engaged in the unfair labor practices alleged
in the complaint and denying that its business affects commerce
within the meaning of the Act.
Pursuant to notice, a hearing was held at San Antonio, Texas,
on October 6, 1938, before William P. Webb, the Trial Examiner duly
designated by the Board. The Board and the respondent were
represented by counsel and the Guild by its president and all par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. During the hearing the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Trial Examiner reserved de-
cision on certain other rulings for his Intermediate Report.
On October 18, 1938, the respondent filed a brief with the Trial
Examiner in support of its case. On November 25, 1938, the Trial
Examiner filed his Intermediate Report, finding that the respondent
had engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
Act, and recommending that the respondent cease and desist there-
from and take certain specified affirmative action. The Trial Exam-
iner also made rulings on motions upon which he had reserved deci-
sion during the hearing. The Board has reviewed these rulings and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On December 5, 1938, the respondent filed Exceptions to the
Intermediate Report. On March 21, 1939, pursuant to notice, a
hearing for the purposes of oral argument on the exceptions and on
the record was held before the Board in Washington, D. C. The
respondent was represented by counsel and participated in the argu-
ment. The Guild did not appear. The Board has considered the
respondent's exceptions and finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Texas corporation engaged in the publication
of the San Antonio Express and the San Antonio News, daily morn-
ing and evening newspapers respectively, in the city of San Antonio,
Texas. The average combined daily circulation of these newspapers
EXPRESS PUBLISHING COMPANY 1215
is in excess of 90,000, practically all of which is confined to the State
of Texas. The respondent's newspapers carry news of local, national,
and foreign affairs, local and national advertising matter, special
features, cartoons, and comic strips. Out-of-State news is supplied
by the United Press, to which the respondent is a subscriber, and by
the Associated Press, of which the respondent is a member. The
news dispatches are delivered by these organizations to the respond-
ent's place of business by means of their facilities and employees
located in the respondent's building. Local news of importance
which is gathered by the respondent' s reporters is sent out daily by
the local representative of the Associated Press. The respondent also
has an arrangement with a newspaper correspondent in Washington,
D. C., who transmits to the respondent news items from Washington.
The national advertising carried by the respondent's newspapers and
procured for it by an agent having offices in New York, Chicago,
St. Louis, Dallas, San Francisco, and Los Angeles accounts for
approximately 16 per cent of the respondent's total income, or about
$225,000.
Approximately 35 per cent of the respondent's total expenses are
incurred in the purchase of goods and services originating outside
the State of Texas. The cost of special features and the Associated
Press and United Press services in 1937 amounted to about $80,633.
The respondent purchases all of its newsprint and lead outside the
State at a yearly cost of $295,600. It also annually purchases out-
side of the State about $2,900 worth of ink and $1,850 worth of parts
used in maintaining and repairing its machinery. These raw ma-
terials are shipped to the respondent from points outside the State
of Texas.
II. THE ORGANIZATION INVOLVED
San Antonio Newspaper Guild is a labor organization affiliated
with the American Newspaper Guild, which is in turn affiliated with
the Committee for Industrial Organization. The Guild admits to
its membership editorial, advertising, carrier, office, and circulation-
department employees of the newspapers located in San Antonio,
Texas.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
It was stipulated by the parties that "all the employees of respond-
ent engaged in the editorial department, both of the NEWS and
EXPRESS namely, city editors, reporters, copy desk men and
rewrite men, artists, photographers, copy boys and librarians, society
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
editors and writers, and sports editors and writers, constitute a unit
appropriate for the purpose of collective bargaining within the mean-
ing of Section 9 (b) of the National Labor Relations Act."
We find that the city editors, reporters, copy-desk men and rewrite
men, artists, photographers, copy boys and librarians, society editors
and writers, and sports editors and writers employed by the respond-
ent in the editorial departments of the San Antonio News and the
San Antonio Express constitute a unit appropriate for the purposes
of collective bargaining and that said unit insures to employees of
the respondent the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuates the policies
of the Act.
2. Representation by the Guild of a majority in the appropriate unit
It was further stipulated by the parties that at all times referred
to in the complaint the Guild was the representative of a majority
of the employees of the respondent in the appropriate unit for col-
lective bargaining purposes.
We find that on February 15, 1938, the Guild had been designated
and selected by a majority, of the employees in the appropriate unit
as their representative for the purposes of collective bargaining, and
that pursuant to Section 9 (a) of the Act, was on that date and at
all times thereafter the exclusive representative of all the employees
in such unit for the purposes of collective bargaining with the re-
spondent in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
3. The refusal to bargain ; interference, restraint, and coercion
On March 14, 1938, after the Guild had twice requested the re-
spondent to enter into negotiations with it, the first conference
between the representatives of the Guild and the respondent was
held. At this conference the Guild was represented by Frank G.
Ragsdale, president of the Guild, Sidney Berkowitz, an employee
of a San Antonio department store, and Henry Dielmann, attorney.
The respondent was represented by Frank G. Huntress, president of
the respondent, Thornton Hall, secretary of the respondent, and
A. W. Walliser and A. W. Grant, also officials of the respondent.
Dielmann opened the conference by stating that the Guild had given
its representatives a proposed contract which it desired to be used as
a basis of negotiation between its representatives and those of the
respondent! Huntress then read a prepared statement to the effect
that the respondent had always maintained a just and impartial rela-
s The minutes of this conference as well as those that followed were transcribed and
appear in evidence as Board Exhibit 3 E, H, 0, and U.
EXPRESS PUBLISHING COMPANY 1217
tionship with its editorial-department employees regardless of union
affiliation, and that it intended to continue this policy. He also de-
scribed generally certain benefits which he claimed the respondent
had given its employees since 1902. At the conclusion of his state-
ment Huntress announced "While we see no reason to change our just
and impartial policy in the news and editorial departments of our
newspapers which has been maintained up to the present time, every
consideration will be given to the Guild members and any other
employee in those departments of our newspapers."
The Guild representatives then presented the written draft of the
proposed contract which contained various provisions for (1) the es-
tablishment of a "Guild Shop"; 2 (2) preferential hiring of Guild
candidates to fill vacancies; (3) the classifications of employees; (4)
minimum salaries; (5) at least it 10-per cent increase in pay to all em-
ployees; (6) an 8-hour day and a 40-hour week with time and one-half
pay for overtime; (7) written notice to discharged employees stating
cause therefor and a cash severance payment equal to 4 weeks' pay;
(8) vacations with pay; (9) sick leave with pay; and (10) limitations
on the employment of apprentices. The proposed contract also pro-
vided inter alia that (1) employees be reimbursed for expenses in-
curred in line of duty; (2) the respondent would not enter into any
agreement with any other publisher not to offer to give employment
to any employees of the publisher; (3) neither reporters should be
required to act as photographers nor photographers as reporters; (4)
bulletin-board space would be made available for Guild notices; and
(5) no employee would be required to publish under his name any
material containing an expression of opinion not in conformity with
his opinion.
Ragsdale then set forth the general aim of the Guild and stated
that the Guild representatives "would like to sit down around a table
and discuss these things [provisions of the contract] and see why
they are necessary and why we want them, and why we think we
ought to have them. That is one of the reasons why I would like
to see us sit down and take this thing [contract] up clause by clause
and see what it means to us, as well as what it means to you."
z The provision in the proposed contract for a "Guild Shop" read as follows :
1. The Publisher shall require as a condition of employment of any employee
that he be and remain a member of the Guild in good standing during the term
of his employment If any employee be not a member of the Guild at the time
of signing of this agreement or at the time of his acceptance of employment, he
shall become a member of the Guild within thirty days of the date of signature
of this agreement or within thirty days of his becoming an employee of the
Publisher
2. The Guild agrees that it will admit to membership and retain in membership
any employee , subject to the Constitution of the American Newspaper Guild and
bylaws of the Guild
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huntress agreed to consider the proposed contract and to notify the
Guild as soon as possible and the meeting adjourned.
On March 30, 1938, a second conference was held. Huntress
opened the meeting by reading the following prepared statement :
We have thoroughly considered the provisions of the con-
tract submitted to us by the negotiators in behalf of San
Antonio Newspaper Guild on March 14, 1938. We find the
terms of this proposed contract unreasonable and unacceptable.
The proposed requirement that the publisher set up and
maintain a "Guild Shop" with employment conditioned upon
the applicant's Guild membership is contrary to the letter and
intent of the National Labor Relations Act. That statute
provides that an employee is not required to join a labor union,
or to pay dues or assessments, to any organization, unless he
chooses to do so of his own free will. Existing independent
employment relations may be continued by the individual
employee, or by employees as a group.
The proposed contract calls for unreasonable restrictions
upon the publisher's right of both employment and discharge
in the conduct of the news department., It also would under-
take to tie the publisher's hands as regards salary scales in
relation to the condition and conduct of business. Further-
more, in several instances it would require pay for employees,
without working.
The proposed requirement of written notice stating cause
of an employee's dismissal from the publisher's employ is
contrary to rights accorded by the Texas Constitution, as de-
cided by the Supreme Court of this State. The proposed pro-
visions as to sick leave and pay therewith are unreasonable
on several grounds, and particularly in consideration of the
fact that Texas law requires an employer to carry employee-
compensation insurance, and that Federal law requires the
employer to pay social security tax, so that he cannot afford
to bear this obligation personally.
The proposed restrictions upon the nature and character of
services to be rendered by photographers and reporters are
unreasonable and unwarranted.
The proposed restriction upon the source and authorship of
news and feature matter for these newspapers is utterly un-
reasonable and impracticable upon its face. Certainly no pub-
lisher should consent to any such censorship from any source.
The classifications proposed to employees in the applica-
tion of the contract are unreasonable, unwarranted and un-
acceptable to the Company. .
EXPRESS PUBLISHING COMPANY 1219
A discussion of the "Guild Shop" provision ensued during which
Ragsdale, referring to the fact that prior to this time the respondent
had entered into a closed-shop agreement with the representatives of
certain of its employees not in the editorial department, asked Hunt-
ress why he desired to follow one procedure with regard to those
employees and another with regard to its editorial-department em-
ployees. Huntress replied, "As a matter of fact, we don't intend to
have the Guild or any other union tell us how to run our Editorial
Department. We have the right to run our business the way we think
is best so that Nye can make it possible for the stockholders to receive
something." After some argument Dielmann sought to discuss fur-
ther the "Guild Shop" provisions, to which Huntress replied, "I think,
as I said before, I have made it plain that the contract submitted was
unreasonable, unwarranted and unacceptable to us." He stated that
the Guild could submit another contract if it so desired. Ragsdale
then stated, "Mr. Huntress, we have only taken up this first clause
and apparently are not getting anywhere on that. The Guild has
submitted a proposition which it feels is a fair contract. As I stated
at the last conference, the Guild is not trying to put anybody on the
spot, but is perfectly willing to listen to reason." Ragsdale then
asked, "Would you be willing to submit a counter proposition?" to
which Huntress replied, "I think it is up to you all to submit a
contract if you so desire." Dielmann then suggested that they discuss
the various provisions of the proposed contract in order that a tenta-
tive agreement could be reached. He added that the manner in which
the respondent's objections to the proposed contract were worded was
such that the Guild representatives had no way "of finding out what
paragraphs are acceptable or what changes would make them accept-
able," and that they were therefore at a loss to know what type of a
contract would be acceptable to the respondent. Huntress replied that
he did not have anything further to say. During the ensuing discus-
sion the Guild representatives repeatedly urged the respondent's rep-
resentatives to go over each clause in the proposed contract with them
in order that a tentative) agreement could be drawn up but Huntress
refused to change his position. The respondent's representatives re-
verted to the objections stated in the proposed statement read by
Huntress at the beginning of the meeting and the conference
terminated soon thereafter.
On April 4, 1938, the respondent's secretary with the permission
of its president, assembled the editorial-department employees and
read the following statement :
We have called you to this meeting for the purpose of offering
you further explanation and interpretation than perhaps you
have received to date of a matter which vitally concerns each of
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you as well as ourselves. We have reference to the National
Labor Relations Act, known as the Wagner Act. The first
thought we wish to leave with you is this : Under the provi-
sions of the Wagner Act an employee is not required to join a
labor union, or to pay dues or assessments to any organization
unless he chooses to do so of his own free will. Existing inde-
pendent employment relations may be continued by the indi-
vidual employee, or by employees as a group. In other words,
while the Act provides employees with the right to self-organ-
ization, to form, join or assist labor organization and further
provides employees with the right to bargain collectively through
representation of their own choosing, the Act does not require
nor force an employee to join any labor organization. The
employee has the right to join or refuse to join any organization
and is to be guided only by the dictates of his own free will.
Whether the employee joins or refuses to join any organization
will have no effect whatever on his employment.
No one can compel you to join any organization and no one
can prevent you from joining any organization.
The second thought we wish to leave with you is this : An
employer may hire or discharge or transfer employees to any
task he may see fit, discharge an employee in the interest of
efficiency or even from personal animosity or sheer caprice, but
employees cannot be discharged or hired for the purpose of
influencing their right under this Act.
In other words, membership in any organization does not
guarantee an employee that he cannot be discharged. He can
be discharged just as readily if he has organization member-
ship as he can if he does not have the membership. The only
protection an employee has ever had or ever will have against
discharge is to perform his work in a satisfactory manner and
to conduct himself in accordance with the general rules and
requirements of his employer.
The third thought we would like to leave with you is this :
It has always been and always will be a policy of this company
to provide as agreeable and comfortable working conditions as
possible for our employees. Each of you has been in our employ
a number of years and each of you know that we have always
endeavored to make your association with us as pleasant as
possible and that we have always been interested in your wel-
fare. As an illustration, each of you know we carried you
through the depression rather than throw you out of employ-
ment, although our business did not justify us in doing so.
Further, you know that we have carried some of you through
sickness. Further, each of you know that it is our policy to
EXPRESS PUBLISHING COMPANY 1221
give each one a vacation with full pay. All of this is done
because of our interest in your welfare and to promote pleasant
relationship between you and our company. Each of you know
we were not forced to do this by any labor organization and no
labor organization can force us to do these things.
Summing up, an4 employee cannot be forced to join a labor
organization but it is a matter of exercising his own free will;
membership in a labor organization does not guarantee an
employee employment; and, membership in a labor organiza-
tion does not guarantee an employee the interest in his welfare
by his employer.
We intend to give every consideration to Guild members and
we want it understood that non-Guild members will also receive
every consideration.
We hope we have given you some beneficial information and
we appreciate your coming here for this meeting.
On April 21, 1938, the third conference was held with Huntress
absent. Ragsdale opened the conference by reading a lengthy letter
addressed to the respondent by the Guild in which the Guild stated
that the respondent had rejected the proposed contract as unreason-
able and unacceptable even as a basis of negotiations, and requested
the respondent "to go over the previously proposed contract with
our negotiators, item by item, thereby demonstrating to his employes
his sincerity in collective bargaining." The letter also set forth the
general policy and aims of the Guild and a lengthy reply to the
respondent's objections to the proposed contract. The Guild offered
to set aside the "Guild Shop" provision in the contract, which the
respondent objected to, until the other provisions were discussed and
pleaded "that negotiations be continued in a friendly spirit until the
contract is thoroughly discussed, with the end in view that a contract
mutually acceptable to the publisher and to the Guild will ultimately
result." Hall accepted the letter, promised to give it to Huntress for
his consideration and after some discussion during which Denman
reiterated the objections stated in the prepared statement read by
Huntress at the beginning of the March 30 conference and quoted in
full above, the meeting adjourned.
On May 23, 1938, the fourth conference was held at the request of
the Guild. The meeting was opened by Hall who read a statement
prepared by Huntress which reiterated the respondent's former
position that the contract was "unreasonable and unacceptable." The
respondent's attitude appeared in the following conversations engaged
in by Dielmann, Denman, and Huntress during this conference :
Mr. DIELMANN. The original contract as proposed has been re-
jected as being unsatisfactory and unacceptable. The Guild
187930-39-col 13-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comes back and discusses the various objections in this communi-
cation, inviting an open discussion on those disputed questions
regarding the original contract. What I want to know is, the
negotiators here either can or either cannot discuss the objections
made by the Publisher and the reply made by the Guild, one or
the other. In other words, are we at the end of what we can
do? What is the next step for us as negotiators?
Mr. DENMAN. You are free to discuss anything you wish, or
say anything you want to say. Discussion means something said
by somebody. Now, Mr. Huntress has said item by item what his
objections were to the contract, and anything you want to say I
am sure Mr. Huntress will be glad to hear.
Mr. HUNTRESS. You cannot reasonably expect us to continue
this resultless discussion when you insist upon keeping that con-
tract before us which has already been rejected as unreasonable
and unacceptable. You have not given us anything to go by.
All you say here is that you want us to discuss it. In other
words, conversation based upon such an attitude can get us
nowhere.
Mr. DIELMANN. Well, all we can do-is to take some proposal as,
the basis of discussion, even though it may on its face be
unacceptable to you, yet it may be the basis of a discussion. In
other words, you say here that a certain wage is an unreasonable
wage and you do not accept that. Now, the only way we can find
out what a reasonable wage is, according to your interpretation,
is to discuss that wage or that particular classification. Now, I
am merely inquiring as a negotiator whether we can do that, or
is it your idea that we must submit to you an entirely new con-
tract for your approval or disapproval.
Mr. HUNTRESS. That is a matter entirely with the Guild. If
you will look through the conversations that we have had so, far
you will find that you have at no time made it plain to us, other
than submitting and resubmitting a proposed contract that we
rejected.
Mr. DIELMANN. Merely as a basis of discussion.
Mr. HUNTRESS . I think we have made our objections to that
contract very clear to you in writing.
Mr. DIELMANN. Well, the Guild has answered your objections
and there is, of course, a difference of opinion between the two
of you. Our only purpose here is to see whether or not we can
act as mediators between the Guild and you as the Publisher, in
trying to arrive at what would be the basis of a fair contract to
both.
EXPRESS PUBLISHING COMPANY 1223
The Guild representatives then urged the respondent's represent-
atives "to sit around a table and take that contract which you
have rejected and discuss it, and see if we can arrive at what ought
to be eliminated and what might be acceptable, what rates might be
considered reasonable by you." The respondent's representatives,
however, refused to respond to this proposal. Finally, a Guild
representative stated in effect that apparently further attempts to
negotiate would be futile because of Huntress' attitude and the meet-
ing ended.
A conference scheduled for August 4 failed to materialize because
of a misunderstanding as to who had requested the meeting.
B. Conclusions
From the foregoing facts and upon the entire record, it is appar-
ent that on March 14, 1938, and at all times thereafter, the respondent
had no intention of negotiating in good faith with the Guild nor of
entering into a collective bargaining agreement with it.
"Collective bargaining, as contemplated by the Act, is a procedure
looking toward the making of a collective agreement by the employer
with the accredited representatives of its employees touching wages,
hours of service, and other working conditions of the employees. The
duty to bargain collectively, which the Act imposes upon employers,
has as its objective the establishment of such a contractual relation-
ship. We have held that this duty is not limited to recognition of
the employees' representatives qua representatives, or to a meeting
and discussion of terms with them. The duty encompasses an obli-
gation to enter into discussion and negotiation with an open and
fair mind and with a sincere,purpose to find a basis of agreement
concerning the issues presented, to make contractually binding the
understanding upon terms that are reached, and, under ordinary
circumstances, to reduce that obligation to the form of a signed writ-
ten agreement if requested to do so by the employees' representa-
tives." 3 Although the respondent was willing to meet with the
Guild representatives and to receive the Guild's proposals, its objec-
tions to the proposed contract which the Guild submitted as a basis
of negotiations amounted to nothing more than a flat rejection of
the entire proposal and, like the statements of its representatives at
all the conferences, were worded in such a manner that the respondent
carefully avoided any affirmative indication of possible terms upon
which it would be willing to agree. The Guild representatives re-
peatedly requested and urged the respondent's representatives to dis-
3Matter of Highland Park Manufacturing Co and Textile Worksrs Organizing Conn
niattee, 12 N L R B 1238 ; see also Matter of S L Allen & Company. Inc, a Coipoiation
and Federal Labor Union Local No 18526, 1 N L R B. 714
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuss each of the provisions in the proposed contract with them so.
that an understanding could be reached on each provision and a
tentative agreement acceptable to both parties drawn up. However,
Huntress, who was the spokesman for the respondent, would at no.
time change his position that the entire contract was "unreasonable
and unacceptable"; that he was unwilling to submit a counter prop-
osition; and that it was incumbent upon the Guild to submit another
proposal, for his "due consideration," if the Guild cared to do so.
Clearly an employer is not required under the Act to agree to what-
ever proposals a labor organization submits to him. It is obvious,.
however, that the technique employed by the respondent in this case
was calculated to and did make any productive negotiations.
impossible.
The respondent's action in assembling its editorial-department
employees on April 4 and reading the statement set forth above
amounted to a direct interference with the Guild's efforts to negotiate
and constituted an invasion of the employees' rights under the Act.
The statement which purported to inform the employees of their-
rights under the Act emphasized the fact that the employees were not
required to avail themselves of such rights, that the existing labor-
policy was satisfactory to the respondent, that the benefits accorded
to the employees flowed solely from the respondent's interest in their-
welfare, and that collective bargaining was in effect unnecessary.
It is apparent that the statement which in no part described the pur-
poses and policies of the Act presented a distorted concept of em-
ployees' rights thereunder.4
Counsel for the respondent contended at the oral argument that
Huntress, by making clear during the conferences that he desired the
then existing working conditions in the editorial department to con-
tinue, in effect had submitted a counterproposal. We find this con-
tention to be without merit. Huntress did not at any time during the
conferences affirmatively offer or indicate that he was willing to enter
into an agreement of any kind with the Guild.
An employer's tactics in evading his obligation to bargain col-
lectively under the Act similarly appeared in Matter of Globe Cotton
Mills and Textile Workers Organizing Committee 6 in which we said:
The respondent's tactics in readily participating in discussions
in which its agents carefully avoided any semblance of agree-
ment to proposed terms and offered no suggestions for changes-
' Cf Matter of Mansfield Mills, Inc and Textile Workers Organizing Committee, 3
N L R B 901; Matter of Mock-Judson-Voehiinger Company of North Carolina, Incor-
porated and American Federation of Hosiery Workers, North Carolina Distract, 8-N. L -R.-B.
133 ; Matter of Tatmus Optical Company and Optical Workers Union,. Local No. 20682,
9 N L R B 1026
'6 N L R B 461
EXPRESS PUBLISHING COMPANY 1225
acceptable to them convince us that the respondent only sought
to give the appearance of obedience to the Act without entering
into genuine collective bargaining.
In sustaining the Board's Decision ordering the employer therein
to bargain collectively with the representative of its employees, the
Circuit Court of Appeals for the Fifth Circuit said : 6
We believe there is a duty on both sides, though difficult of
legal enforcement, to enter into discussion with an open and fair
mind, and a sincere purpose to find a basis of agreement touch-
ing wages and hours and conditions of labor, and if found to
embody it in a contract as specific as possible, which shall stand
as a mutual guaranty of conduct, and as a guide for adjustment
of grievances. . . . the duty is on the Mills [employer] to join in
formulating one [a contract] to which both [the Union and the
Employer] can agree, fixing as definitely as possible, and for such
time as may be agreed on, wages, hours, and conditions of employ-
ment, whether on the present basis or a new one. . . . when a
counter-proposal is directly asked for, [by the Union] it ought to
be made [by the employer] for the resistance in discussion may
have been only strategy and not a fixed final intention.
We-find that the respondent at all times since March 14, 1938, has
refused to bargain collectively with the Guild as the exclusive repre-
sentative of its employees in an appropriate unit and that it has
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act. We fur-
ther find that the respondent by reading the above-described state-
ment to its employees on April 4, 1938, 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
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent refused to bargain collectively
with the Guild, we shall order it, upon request, to bargain collec-
e Globe Cotton Mills v National Labor Relations Board, 103 F. (2d) 91.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively with the Guild as the exclusive representative of the city
editors, reporters, copy-desk men and rewrite men, artists, photog-
raphers, copy boys and librarians, society editors and writers, and
sports editors and writers employed by the respondent in the
editorial departments of the San Antonio News and the San Antonio
Express, and if understandings are reached, to embody such under-
standings in a signed agreement, if requested to do so by the Guild.
We shall further order the respondent to cease and desist from
its unfair labor practices.
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. San Antonio Newspaper Guild is a labor organization within
the meaning of Section 2 (5) of the Act.
2. The city editors, reporters, copy-desk men and rewrite men,
artists, photographers, copy boys and librarians, society editors and
writers, and sports editors and writers employed by the respondent
in the editorial departments of the San Antonio News and the San
Antonio Express constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the
Act.
3. San Antonio Newspaper Guild was on February 15, 1938, and
at all times thereafter has been, the exclusive representative of all
the employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
4. By refusing and continuing to refuse to bargain collectively
with San Antonio Newspaper Guild as the exclusive representative
of the employees in the above-stated unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
5. By interfering with, restraining, 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.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
]awl and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that Express
Publishing Company, San Antonio, Texas, and its officers, agents,
successors, and assigns shall:
EXPRESS PUBLISHING COMPANY 1227
1. Cease and desist from :
(a) Refusing to bargaining collectively with San Antonio News-
paper Guild as the exclusive representative of the city editors,
reporters, copy-desk men and rewrite men, artists, photographers,,
copy boys and librarians, society editors and writers, and sports
editors and writers in the editorial departments of both the San
Antonio Express and San Antonio News;
(b) In any 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 purposes of collective bargaining or other mutual
aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will,
effectuate the policies of the Act :
(a) Upon request bargain collectively with the San Antonio News-
paper Guild as the exclusive representative of the city editors, re-
porters, copy-desk men and rewrite men, artists, photographers, copy-
boys and librarians, society editors and writers, and sports editors
and writers in the editorial departments of both the San Antonio.
Express and San Antonio News, with respect to rates of pay, hours.
of employment, and other conditions of employment, and if an under-
standing is reached on any such matters, embody said understand-
ing in a signed agreement, if requested to do so by the Guild;
(b) Post immediately notices to its employees in conspicuous places
within the plant, and maintain such notices for a period of at least
sixty (60) consecutive days from the date of posting; stating (1)
that respondent will cease and desist as aforesaid, and (2) that the
respondent will bargain collectively with San Antonio Newspaper-
Guild as the representative of its city editors, reporters, copy-desk
men and rewrite men, artists, photographers, copy boys and librar-
ians, society editors and writers, and sports editors and writers in
the editorial departments of the San Antonio News and San Antonio-
Express, with respect to rates of pay, hours of employment, and other-
conditions of employment and that if an understanding is reached
on any such matters the respondent will embody said understanding-
in a signed agreement, if requested to do so by the Guild ;
(c) Notify the Regional Director for the Sixteenth Region in-
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
MR. WILLIAM M. LEISExsoN took no part in the consideration of
the above Decision and Order.