Hearst Consolidated Publications, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1939

10 N.L.R.B. 1299 (N.L.R.B. 1939)

In the Matter Of HEARST CONSOLIDATED PUBLICATIONS, INC. and BALTI- MORE NEWSPAPER GUILD Case No. C-559.-Decided January 19, 1939 Newspaper Publishing Industry Interference, Restraint, and Coercion-Dis- cr2mmation: discharge : for union membership and activity-Reinstatement Ordered-Bach; Pay: awarded; monies received by employee for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Jacob Blum and Mr. Samuel Spencer, for the Board. Mr. E. D. Salinger and Mr. Edward G. Woods, of New York City, for the respondent. Mr. William, Wilson, Jr., of Baltimore, Md., for the Guild. Mr. Louis Newman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Baltimore Newspaper Guild, herein called the Guild, the National Labor Relations Board, herein called the Board, by Bennet F. Schauffler, Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated February 8, 1938, against Hearst Consolidated Publications, Inc., Baltimore, Maryland, herein called the respondent, alleging 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Guild. The complaint alleged in substance that on or about August 6, 1937, the respondent discharged Frederick H. Houck, an employee, because he joined and assisted the Guild, thereby discriminating in regard to hire and tenure of employment and discouraging member- ship in the Guild, and further that the respondent intimidated, re- strained and coerced its employees and in other ways attempted to prevent them from joining a labor organization of their own choos- 10 N. L. R. B., No. 114. 1299 1300 NATIONAL LABOR RELATIONS BOARD ing. On February 14, 1938, the respondent filed an answer reserving its right to contest the jurisdiction of the Board, admitting the dis- charge, denying the other material allegations of the complaint, and alleging affirmatively that Houck had been discharged for cause. Pursuant to notice, a hearing was held in Baltimore, Maryland, on February 17 and 18, 1938, before Hugh C. McCarthy, the Trial Examiner duly designated by the Board. All parties were repre- sented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bear- ing on the issues. At the close of the Board's case, the Trial Examiner granted a motion by counsel for the Board to amend the complaint to con- form to the proof, and reserved decision on a motion by the respondent to dismiss the complaint. On April 8, 1938, the Trial Examiner filed an Intermediate Report finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and, affirmatively, reinstate Houck with back pay. Copies of the Intermediate Report, which in effect denied the respondent's motion to dismiss upon which the Trial Examiner had reserved decision at the hearing, were duly served on the respondent and the Guild. Thereafter, the respondent filed exceptions to the Intermediate Report. Pursuant to notice, oral argument was had before the Board at Washington, D. C., on Sep- tember 20, 1938. The respondent and the Guild were represented by counsel and participated in the argument. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has also considered the exceptions of the respondent to the Intermediate Report, and finds them without merit except in so far as appears in the findings, conclusions and order set forth below. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized and existing under the laws of the State of Delaware. It owns and publishes six news- papers in various parts of the United States, and owns and controls two other corporations, each of which publishes a newspaper. In the State of Maryland, in which the respondent is qualified to do business, it owns and publishes The Baltimore News-Post, a daily evening paper, and The Baltimore Sunday American. DECISIONS AND ORDERS 1301 The average daily circulation of The Baltimore News-Post during the year 1937 was 206,000 copies, and the average circulation of The Baltimore Sunday American during the same period was 235,000 copies. Approximately 2 per cent of the daily circulation and ap- proximately 14 per cent of the Sunday circulation is outside the State of Maryland. The principal materials used by the respondent in its Baltimore plant are newsprint and ink, all of which is shipped to the respond- ent from outside the State of Maryland. The major part of the newsprint is obtained from sources in Canada, and all of the ink is purchased in Massachusetts. While no substantial purchases of machinery have been made by the respondent within the last 5 years, occasional replacement parts and some other equipment are furnished by the manufacturer in Chicago, Illinois. The respondent is a member of the Associated Press, and uses the wire services of the United Press and International News Service. All of these organizations maintain and operate teletype machines in the respondent's Baltimore plant. Advertising appearing in the respondent's Baltimore newspapers is chiefly local in nature, but some national advertising is obtained through Hearst International Advertising Service, which has offices throughout the country. Puck's Comic Weekly, an advertising medium distributed through Hearst newspapers, including The Balti- more Sunday American, solicits advertising on a national scale. The respondent is part of the elaborate corporate structure owned and maintained by William Randolph Hearst, an organization Nation-wide in its scope and activities., For the purposes of this proceeding the respondent concedes the jurisdiction of the Board. II. THE LABOR ORGANIZATION INVOLVED Baltimore Newspaper Guild is a labor organization admitting to membership employees of the respondent at its Baltimore plant. It is a branch of The American Newspaper Guild, which is affiliated with the Committee for Industrial Organization. III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices Organization of Baltimore Newspaper Guild was begun in 1933. At that time and until June 1937, only editorial employees were eligible for membership. By the fall of 1936, a substantial number 'The Board has already had occasion to consider this corporate structure and its rela- tion to commerce Matter of William Randolph Hearst, Hearst Publications , Inc., Hearst Consolidated Publications , Inc., Hearst Corporation, American Newspapers , Inc., and King Features Syndicate , Inc. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B 530 147841-89-vol 10-83 1302 NATIONAL LABOR RELATIONS BOARD of employees in the editorial room of the respondent's Baltimore plant had joined the News-Post unit of the Guild. In December 1936, the News-Post unit elected as its chairman Frederick H. Houck, one of the respondent's copy editors. One of Houck's first acts as chairman was the appointment of a committee consisting of himself and two other men for the purpose of meeting with the paper's managing editor, William M. Baskervill, to inform him of the action which had been taken by the editorial employees and to notify him of their intention to deal with the man- agement through the Guild. The meeting with Baskervill took place shortly before Christmas of 1936. Informed of what had taken place, Baskervill stated to the committee, according to Houck's testimony, that ". . . in forming a labor organization and becoming mem- bers of a labor organization, we faced the possibility of sacrificing the more or less close personal relationship that had theretofore existed . . ." Houck further testified that Baskervill then reminded each of the three members of the committee of an error or lapse in work theretofore presumably committed by him and over- looked by the respondent, and said that in the future, "under a union," such occurrences might not be overlooked. At the hearing, Basker- vill testified generally that he had said nothing to Houck or the com- mittee which ".. . could reasonably be construed as a warning against union organization . . . ," but he did not specifically deny the statements attributed to him by Houck nor did he explain whether he would regard such statements, if made, as a warning against union organization. During December 1936, , Houck actively engaged in soliciting Guild members among the respondent's employees, one of his talk- ing points being that the management favored rapid organization of the Guild in order that a contract might be negotiated as quickly as possible. When Baskervill heard of this, he arranged a conference between Houck and the local Hearst manager or publisher in charge of the News-Post, A. B. Chivers. This conference was held in Chivers' office the Saturday before Christmas, shortly after the com- mittee meeting with Baskervill described above. Upon being ques- tioned by Chivers, Houck explained that his statements to prospec- tive Guild members were based on information given him by two other employees, Ballard and Werking. Houck's good faith in thus representing the management's attitude toward organization of the Guild was apparently not questioned, but Chivers told Houck that the management had given no such indication of attitude to any one and requested that Houck stop his representations. Houck testified at the hearing that Chivers then inquired as to the reason for Houck's interest in the Guild and charged Houck with retaining for himself DECISIONS AND ORDERS 1303 part of the initiation fees and dues being collected by him. Bas- kervill, who was present at the conference, testified upon cross-ex- amination that he had no recollection of Chivers' making any such accusation, but refused to deny that it had been made; I-Iouck's ex- planation that Baskervill might not have heard everything Chivers said, because Baskervill stood some distance away at the window of the room during part of the interview, was not controverted on behalf of the respondent. The interview with Chivers was followed for a time by increasing activity on the part of the Guild. Two members of the American Newspaper Guild, not employed in Baltimore nor members of the Baltimore chapter, negotiated with the News-Post management in= an attempt to obtain a contract. The attempt was unsuccessful, but. the negotiations led to the posting by the respondent in its editoriat room on or about April 11, 1937, of a "statement of the employment. policy of the Baltimore News-Post & Sunday American in the news and feature departments," over the signature of A. B. Chivers. This statement of policy did not recognize the Guild as a collective bar- gaining agency, but provided in part that "The management will con- tinue to welcome discussion of grievances with its employees or their representatives." Houck accordingly appointed a grievance commit- tee of which he was a member and which thereafter conferred with the management from time to time, singly or in groups, with respect to grievances of various employees. The record shows that all the requests made through this committee were granted, but that only one of these requests was made after June 1937, a date the significance of which will appear later. Some time during the spring of 1937, after Houck had been seen on a Sunday temporarily taking care of a tavern owned by an ac- quaintance in Halethorpe, Maryland, the respondent's sports editor, Roger Pippen, posted a notice on the Guild's bulletin board in the News-Post office, referring to Houck as the great union leader of the News-Post and stating that Houck was taking a union bartend- er's job on Sundays. There is some question as to whether this notice, in view of Pippen's reputation as a practical joker, was not meant to be humorous, but Pippen's supervisory position and his feel- ing toward Guild activities as otherwise evidenced make it impos- sible for us to regard the bartender incident as entirely without mean- ing in the minds of other employees. In various conversations with Houck, Pippen made it clear, as Houck testified, that he "considered a Guild member a Red and a Communist of the worst sort; that they were not doing themselves any good and certainly were not doing the Hearst organization any good." At one time in the latter part of April or in May of 1937, after Pippen learned that he, had 1304 NATIONAL LABOR RELATIONS BOARD been criticized at a Guild meeting, he forbade the men in the sports department from speaking to Houck at the office,-an edict that was observed for a short time at least in Pippen's presence. Pippen, himself, did not like being seen by the managing editor, Baskervill, talking to Houck, and on one occasion abruptly terminated a conver- sation with Houck for that reason. In June 1937, the Guild, which had theretofore been affiliated with the American Federation of Labor, became affiliated with the Com- mittee for Industrial Organization. One result of this change was that eligibility for membership was extended by the Guild to non- editorial employees, who had theretofore been excluded from mem- bership. The change was known to the management, and Houck informed the managing editor, Baskervill, that the Guild was plan- ning to request a contract and that departments other than the edi- torial room would be represented in the negotiations. Houck also posted a notice on the bulletin board apprising the respondent's em- ployees of the change and inviting non-editorial employees to join the Guild, which a number of them did. Shortly afterwards, on July 19, 1937, an employee on the copy desk, Myer Trupp, was discharged. Trupp had first been employed by the respondent in March 1932, as a district reporter, and contin- ued in that capacity until June 1937. He joined the Guild at the first organization meeting in Baltimore in 1933, and continued as an active member both before and after the formation of the News- Post unit. In June 1937, at the request of the city editor, Andrew Banks, Trupp went to work on the copy desk to fill in, as he under- stood it, during the summer vacation period. A schedule of copy- desk assignments was made up by the head copy editor, Perkins, on Saturday of each week, and on Saturday, July 17, after having been on the desk about a month or six weeks, Trupp noticed that his name did not appear on the weekly schedule. Believing it an oversight, he communicated with Perkins, who confirmed the fact that Trupp's name had been omitted from the schedule and suggested that Trupp see the news editor, Clark, the following Monday. When Trupp asked whether he was "fired," Perkins said he did not know. On Monday, July 19, Trupp came in and saw both Clark and Perkins, each of whom said he did not know whether Trupp had been "fired." Shortly after the managing editor came in the same morning, Per- kins handed Trupp a voucher for 2 weeks' vacation pay and 4 weeks' severance pay. Nothing was said to Trupp as to whether or when he would be reinstated. At the time of his discharge, Trupp had been with the paper longer than most of the men who stayed on as district reporters or as copy editors. Just after his transfer to the copy desk in June, Trupp received his last expense voucher as a district reporter and went to the pay DECISIONS AND ORDERS 1305 window to cash it. At the window he met and had a conversation with the assistant make-up editor, Henry Bien, who at the time of the hearing had become make-up editor. Trupp remarked to Bien that this was his last expense account, to which Bien replied, "Well, what do you boys want? You are drawing big pay now and you are going to have to do big work." Later, about a week before his discharge, Trupp was discussing the Guild generally with Bien, in Houck's presence. Bien indicated that, since the Guild did not ad- mit executives to membership or attempt to speak for them, it was not "any good at all." After his discharge; Trupp at one time learned that there were vacancies on the copy desk, and spoke to Perkins and Baskervill' sep- arately about his securing one of them. Perkins told him that the vacancy had already been filled; Baskervill told him that he could not be considered for the vacancy because the period for which he had received severance pay had not yet expired. Apparently at the time Trupp came in to inquire as to the vacancy, Bien called him in and asked how he was "making out." When told that Trupp was not doing very well, Bien said, "Well, you can only work on a union paper, can't you?" Trupp denied it, and asked why Bien thought, so. Bien replied, "Well, you don't think any paper is going to hire you when you fellows are trying to shove the publishers' back up against the wall." The remainder of the conversation at the time, as reported by Trupp at the' hearing, follows : Tnupr. Well, we certainly are not trying to shove any one's back up against the wall. BIEN. Well, you fellows are always hollering for more money. TRUPP. Mr. Bien, are you firing any one around here on ac- count of Guild activities? BIEN. Oh, they are fired for other reasons around here. Some time afterwards, in September of 1937, Trupp had a tele- phone conversation with one of the respondent's employees, Ballard, who told him that Bien had been "bothering" Ballard because Bien had heard that Trupp contemplated filing charges with the National Labor Relations Board. At Ballard's request, Trupp then spoke to Bien over the telephone; his testimony as to that conversation follows : Mr. Bien then spoke to me and told me, among other things, that if I valued my connection with the newspaper field I had better keep my nose clean, and what I was doing right now "is liable to affect your whole career." Trupp later learned that Bien's part of that telephone conversation was heard by the entire office. 1306 NATIONAL LABOR RELATIONS BOARD Trupp was subsequently rehired by the respondent, at first for part-time work on Saturdays. At the time of the hearing, he was working full time on what he understood was a permanent basis, and no charge has been filed with the Board on his behalf. Trupp was part of a group of some 10 or 11 editorial employees who were discharged at the same time and of whom 4 in addition to him- self were named by Trupp as being Guild members. It appears from the record that most, if not all, of the men in this group had been employed by the respondent longer than other men doing similar work who were not discharged at the same time. The seniority status of the discharged men was not questioned by the respondent's manag- ing editor, Baskervill, when called to the stand; he explained that they were laid off in July 1937 because it was necessary for the paper to economize, and that the men in question were chosen as those best able to afford the loss of work. In Trupp's case, for example, Basker- vill stated that when Trupp came to work for the News-Post in 1932 he had said that he wanted experience and that salary was of no -consequence. We do not believe that this stock remark by an applicant seeking his first paid position furnishes a convincing basis for a be- lief on Baskervill's part more than 5 years afterwards that Trupp -could spare his salary more easily than other editorial employees. On August 5, 1937, the chairman of the Guild's News-Post unit, Houck, was discharged by the respondent. The circumstances under which his discharge took place are considered below in detail, but this section of our decision would be incomplete if it did not include a statement of Houck's discharge and of the status of the News-Post unit of the Guild. The Guild's high point in membership among News-Post employees apparently was reached in April 1937, at the time the respondent's statement of employment policy was posted as a result of meetings between the management and Guild negotiators. Thereafter, Guild membership declined until the time of the hearing in this proceeding, when the then chairman of the News-Post unit, Edward Ballard,2 who succeeded Houck in August 1937 in that posi- tion, testified that he knew of only two or three dues-paying members. In addition, it appears from the record that in November or Decem- ber of 1937, there was organized among the employees of the respond- ent a labor organization independent of the Guild. Besides being chairman of the News-Post unit of the Guild, Ballard also became, and at the time of the hearing still was, president of the independent organization. Testimony as to the circumstances under which this in- dependent organization was formed and as to the connection between it and the respondent's supervisory employees was excluded by, the Trial Examiner, upon objection by counsel for the respondent, on 2 Ballard 's full name is Isaac Edward Ballard Jr ., but he is apparently generally known and referred to as Edward Ballard. DECISIONS AND ORDERS 1307 the ground that no charge had been filed and no allegation had been included in the complaint of any unfair labor practices within the meaning of Section 8 (2) of the Act. Under the circumstances of the present proceeding and in view of the acquiescence by counsel for the Board in the Trial Examiner's ruling, we hold that the exclusion of this testimony does not constitute reversible error. We do not now express any opinion as to the admissibility of such evidence under other circumstances.3 B. The discharge of Frederick H. Houck Houck has been almost continuously employed in newspaper work since 1921, when he began as a district reporter for the Baltimore Sun. Of his 17 years of newspaper experience, more than 12 have been spent with Hearst newspapers in various parts of the country, in- cluding the New York Daily Mirror, the Chicago Herald & Examiner, the Chicago American, and the Baltimore newspapers published by the respondent. Ile has acted from time to time as district reporter, copy editor, make-up editor, telegraph editor, and picture editor. He first became a copy editor when working for the Worcester Tele- graph in Worcester, Massachusetts, during 1926. Not once during this entire period prior to August 1937 was Houck discharged because of unsatisfactory work. In the fall of 1932, Houck was employed by the respondent as copy editor on the staff of The Baltimore News-Post and The Baltimore Sunday American. In addition to the regular duties of a copy editor, Houck also handled incoming wire messages received through the Associated Press, the United Press, and other news services, it being his job to cull from these messages all news items regarded as meriting publication by the respondent. During the major part of the period during which he was employed by the respondent, Houck had the early trick from 5:15 a. in. until noon without any break for lunch. Houck hazarded a guess at the hearing that the man on the early trick handled approximately eight or ten thousand telegraphic items in the course of a day's work. Since a substantial number of these dispatches came through in duplicate or even trip- licate, it was not necessary to read all of them carefully, but each one required at least a cursory examination. In November of 1936, Houck became a member of the Guild and immediately began taking an active part in its affairs. He was elected chairman of the News-Post unit of the Guild in December 1936, and shortly afterwards a letter was sent to the respondent's managing editor, Baskervill, informing him of the formation of the 8Cf Matter of Atlanta Woolen Mills and Local No. 2307, United Textile Workers of America, 1 N. L. It. B. 316, 328 ff.; Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No. 259, 8 N L R B 944, 1308 NATIONAL LA13OR RELATIONS BOARD unit. Houck had one abortive conference with the respondent 's local publisher, A. B. Chivers, after the News-Post unit had determined to attempt to obtain a contract with the respondent, and he was chair- man of a committee of three Guild members who called on Baskervill in December 1936. Houck was also actively engaged in soliciting mem- bers for the Guild both during and after business hours, and such solicitation by him and by other Guild officers and members was known to the respondent's supervisory employees and was permitted to continue without objection. After the posting by the respondent on April 11, 1937, of its statement of employment policy, Houck appointed and became a member of the grievance committee which has already been described in Section III A above. In connection with his work on this committee, Houck conferred from time to time with the managing editor and other department heads of the respondent with respect to grievances of various employees. These activities made Houck's interest and position in the Guild and his work in its behalf known to the respondent practically from the start. In June 1937, as set forth above, the Guild changed its affiliation from the American Federation of Labor to the Committee for In- dustrial Organization, at the same time extending its jurisdiction to include employees outside of the editorial department. Houck there- upon posted notices on the bulletin board stating what had happened and inviting newly eligible employees to join the Guild. He also informed Baskervill that the Guild contemplated requesting a con- tract covering non-editorial as well as editorial employees, and began personally soliciting members in non-editorial departments. Four- teen of the men employed in the composing room responded to Houck's efforts and joined the Guild, and the circulation supervisors had indicated their willingness and intention to become members when Houck was discharged. Following his discharge, the circula- tion supervisors refused to sign membership cards and to pay their dues. The discharge took place Thursday, August 5, 1937. On the morn- ing of that day, Houck reported for work as usual , at 5: 15 a. m. The next copy editor scheduled to come in, Thomas Murphy, reported for work between 6: 00 and 6: 15 a. m. Apparently Murphy had been drinking, for he appeared at the copy desk that morning with what Houck described at the hearing as a bad "hang -over." Houck took Murphy to task for appearing in that condition, particularly be- cause Murphy had been suffering from a similar disability on the preceding Monday and Tuesday and had been off the day before, Wednesday, August 4. On Monday and Tuesday, however, Murphy had been able to discharge his duties efficiently enough not to attract the attention of the head copy editor, Perkins. Houck thereupon DECISIONS AND ORDERS 1309 proceeded with his work, which included giving Murphy, copy to be prepared for publication. At about 7 o'clock, Perkins and another copy reader arrived at the office, and thereafter the other readers reported for work as scheduled. Houck testified that some time between 8: 30 and 9: 00 a. in. Perkins left his desk, from which he could observe the copy readers at work, in order to confer with the news editor, Clark. Murphy seized this opportunity to leave his post at the copy desk and to inquire over Houck's shoulder whether the latter thought Murphy was "getting by" or whether the "old man," meaning Perkins, had noticed anything. At the moment, Houck had in his hand a sheaf of Associated Press copy. Irritated by Murphy's interruption, Houck told Murphy to "leave me alone" and put the entire sheaf of copy in his hand on the "spike" in front of him. Wire copy regarded as un- suitable for publication is "spiked" by the copy editor assigned to telegraph work. Included in the sheaf of copy thus "spiked" by Houck when approached by Murphy was an Associated Press dis- patch containing the story of a robbery which had occurred 2 or 3 days before in Paris, France, in which three Baltimore women had been involved. Perkins testified that the time-stamp on the dispatch in question, as he remembered it, showed that it had been received by the respond- ent not later than 8: 30 a. in. that morning. Houck's testimony placed his receipt of the story at some time between 8: 30 and 9: 00 a. in. Houck further testified that, about 15 minutes after he had "spiked" the story, a duplicate of the dispatch was seen by the news editor, Clark, among the copies sent to him as a matter of office rou- tine. This testimony would fix the time of discovery of the duplicate as not later than 9: 15 a. in., after a delay of approximately 15 minutes. Perkins, however, testified that the duplicate came to Clark's attention at or shortly after 10: 00 a. in., and his testimony tends to establish a delay of an hour and a half. The copy dead-line for the first edition of the News-Post, known as the Night Race Spe- cial edition, was 10: 20 a. in. Perkins testified that the first page of that edition had already been made up when Clark first saw the duplicate dispatch, and that the importance of the story made it necessary to remake the entire first page very quickly. The story nevertheless appeared on the first page of the first edition of the News-Post that day, without delaying its time of publication. The respondent takes the position that the Paris story was obviously front-page material for a Baltimore newspaper, and that Houck's failure to catch it resulted not only in requiring the rearrangement of the entire first page of the News-Post's first edition, but also in the printing of the story without its being rewritten to give local "angles" 1310 NATIONAL LABOR RELATIONS BOARD and without an accompanying photograph. It was also testified for the respondent that, had it not been for the discovery of the story by Clark, the News-Post would not have printed the news item in ques- tion at all. Houck, on the other hand, pointed out that it was not unlikely that the same story would have been received through one of the other news services . There is also evidence in the record tend- ing to show that the respondent would in any case have been unable to obtain a suitable photograph in time for reproduction in its first edition of the day. Contrary to the testimony introduced on behalf of the respondent, a photostatic copy of the first page of the News- Post's first edition on August 5, 1937,4 shows that the story of the Paris robbery had a 2-inch "shirt tail" giving information of local interest with reference to the Baltimore residents involved in the robbery. The respondent, nevertheless, stresses the absence of a suitable photograph to accompany the story as it appeared in the first edition, and also points out that the first edition of its rival, the Baltimore Sun, not only printed a photograph of one of the women concerned, but also rewrote the Associated Press dispatch. Counsel for the Board attempted to establish the fact that the first edition of the Baltimore Sun reaches the streets approximately 15 minutes after the first edition of the News-Post, thereby giving the Sun additional time in which to make up its paper; but the respondent's head copy editor, Perkins, who has been in the newspaper business in Baltimore for approxi- mately 17 years, was either unable or unwilling to testify on that score. In addition, Perkins admitted on cross-examination that the same story appeared on the first page of the 7-Star Home Final edition 5 of the News-Post on August 5, 1937, an edition with a copy dead-line approximately an hour and a half later than that for the first edition, in precisely the same form in which it appeared in the first edition. The story was not rewritten for the later edition. When the news editor, Clark, saw the duplicate of the Paris dis- patch, he immediately brought it to the attention of Perkins, who in turn inquired of Houck why he had not caught the story. Houck first replied that it was an old story, implying that he had seen and rejected it. Later that morning it appeared that Houck had not seen the dispatch, and he so testified at the hearing. Sometime between 10: 30 and 11 o'clock, after work on the first edition of the paper had been completed, Perkins removed Houck from the telegraph position and directed him to take a seat on the "rim" of the desk along with the ordinary copy readers. This entailed no reduction in pay, but was nevertheless a demotion in that an ordinary copy reader has less ' Respondent Exhibit No. 3. 5 Respondent Exhibit No. 5. DECISIONS AND ORDERS 1311 responsibility and is not as eligible for promotion as the man on the, early trick. As Houck was changing his position in accordance with Perkins' directions, he told Perkins that he was "tired of taking the rap for drunks," thereby indicating that he regarded his oversight as having been due at least in part to Murphy's condition that morning. After Houck had left for the day at noon, Perkins conferred with Clark for the purpose of determining what disciplinary action should be taken. Clark then consulted by telephone with the managing editor, Baskervill, who was in Washington, D. C., that day. Basker- vill testified at the hearing that, when he was informed by Clark on August 5, 1937, of what had happened that morning, he requested a recommendation from the "desk", meaning Perkins, as to what dis- ciplinary action should be taken, that he was told Perkins recom- mended dismissal of Houck, and that Baskervill merely approved the recommendation. Houck testified that when he came to the News- Post office on Friday, August 6, Clark told him that Baskervill had ordered his dismissal over the telephone. In any event, Perkins tele- phoned Houck during the afternoon of August 5 to tell him he was discharged. When Houck came in the following day for his dismissal or sever- ance pay, he was given a voucher for 5 weeks' pay. Houck protested that he had been with Hearst newspapers for 13 years, and that under the respondent's statement of employment policy of April 11, 1937, he was entitled to 10 weeks' severance pay. The clause of the state- ment of policy to which Houck referred provided that an employee dismissed "for causes beyond his control" was to receive "one week's pay for each year of service in the Hearst organization, up to a maxi- mum of 10 weeks' pay." With Baskervill's approval, Houck's sever- ance voucher was increased to give him 10 weeks' pay. At the hearing, witnesses for the respondent stressed Houck's fail- ure to discipline Murphy when the latter appeared for work on Thurs- day, August 5, 1937, with a bad "hang-over," and the respondent's managing editor, Baskervill, criticized Houck's conduct in connection with Murphy as "shirking authority." Houck, on the other hand, stated that when Murphy came in that morning Houck "took him to task" and then put him to work. The record also shows that on the preceding Monday and Tuesday, August 2 and 3, Murphy had re- ported for work in much the same condition and had, nevertheless, been able to discharge his duties sufficiently well to provoke no un- favorable attention from the head copy editor, Perkins. On cross- examination at the hearing, Perkins admitted that Houck had no power to discharge another copy reader and had, in fact, never been instructed that he could take disciplinary action of any kind. Perkins further admitted that in his 17 years with the News-Post, of which 7 1312 NATIONAL LABOR RELATIONS BOARD or 8 were spent on the copy desk, he had heard of no instance in which a copy editor occupying Houck's position had disciplined one of the other men on the desk. The respondent also took the position that Houck's work had been recurrently bad and that the events of August 5, 1937, served only to confirm Perkins' determination to discharge Houck. Perkins testified generally and vaguely to the unsatisfactory nature of Houck's work, and Baskervill testified that he had from time to time received reports to the same effect from Perkins and from his predecessor in the "slot," Davis. Perkins testified more specifically that Houck's work was particularly and continuously unsatisfactory during June and July 1937, the 2 months immediately preceding his discharge, and that Perkins had had occasion to reprimand Houck only the day before lie was discharged. When pressed for details, Perkins first could not remember the reason for the alleged reprimand, then explained that his statement was an assumption based on the fact that Perkins had had to admonish Houck practically every day that summer, and finally admitted that Houck had not even been in to work on Wednesday, August 4, 1937. It does appear that Houck was twice removed from the early trick and demoted to the "rim" of the desk, once in August 1936, and again in February 1937. As to the first of these two demotions, neither of which carried with it a decrease in pay, Perkins himself testified that the reason for it was Houck's preoccupation at the time with a political campaign in Baltimore. Houck was restored to the early trick in September 1936. The second demotion was caused by Houck's carelessness in failing properly to "trim" or edit a story, and in April 1937, Houck was again restored to the early trick. That occurrences of this nature have not been uncommon and have not ordinarily led to discharge is demonstrated by Perkins' own ex- perience on the copy desk. On one occasion, Perkins wrote the wrong kind of headline for a story of the death of a well-known jockey, and on another occasion he incorrectly labeled a death a sui- cide. Minor disciplinary action was taken each time, but Perkins was not only not discharged but was subsequently promoted to the "slot" position on the copy desk. The record also shows that, apparently some time during 1936, there occurred an incident somewhat similar to that of August 5, 1937. A politically prominent person well known in Baltimore had filed suit for divorce, and the story had come to Houck on the News- Post copy desk. It was handed to a copy boy to take to the city editor, but never reached him, and the News-Post was completely "scooped" on the story by the Baltimore Sun, its rival, just as it would have been "scooped" on the Paris story of August 5, 1937, if the duplicate dispatch had not been seen by Clark. Despite the DECISIONS AND ORDERS 1313 local importance of. the divorce story and its complete failure to ap- pear in the News-Post, no one was discharged and Houck was not even removed from the early trick, receiving only a reprimand for having failed to follow up the story after it was given to the copy boy. After Houck's discharge, he was succeeded in the post of chair- man of the Guild's News-Post unit by Edward Ballard, a News-Post rewrite man who occasionally fills in for the assistant city editor and other assistant editors. On Monday, August 23, 1937, Ballard wrote a letter 6 to counsel for the Guild, William Wilson, Esq., in which he gave the names and status of News-Post members of the Guild who had been discharged between July 19, 1937, and the date of the letter. With respect to the Houck case, Ballard wrote as follows: Of the other two men dismissed, Fred Houck, chairman of the News-Post unit, was fired for cause. Houck missed a story while working on the copy desk. Although another man got the story and made it in the first addition (sic) we were late in getting a picture to go with it, so he was fired. There is no doubt in my mind that he was fired for his activity in the Guild. Still he was fired for a just reason, although a number of non-Guild members have made equally bad mistakes and are still working here.7 In the latter part of November or the beginning of December 1937, Ballard also became president of the independent labor organization which was then formed among the respondent's employees, and at the hearing his testimony tended to minimize the force of what he had written in his letter of August 23 as to Houck's discharge. On cross-examination, however, he conceded that on August 23 his honest conclusion was that the reason for Houck's discharge had been the latter's activity in the Guild. At the time of his discharge, Houck's salary was $41 per week, and he received severance or dismissal pay covering 10 weeks. He did not seek reinstatement because he believed it would be useless. In addition, it appears that the respondent's policy was not to reemploy discharged employees until after the expiration of the period for which severance or dismissal pay had been given. On Thanksgiving Eve of 1937, however, at a conference held at the Regional Office of the Board and attended by Baskervill for the respondent, Houck's reinstatement was requested. Since his discharge, Houck has had only 3 weeks' employment. On August 9, 1937, the Monday following his discharge, he was employed as managing editor of the Baltimore Journal. For his first week in U Board Exhibit No 4 7 Italics supplied. 1314 NATIONAL LABOR RELATIONS BOARD that position he received $35, and for each of the following 2 weeks lie received $50. At the end of the 3-week period, the Baltimore Journal suspended publication and Houck has since been unemployed. In addition to the total earnings of $135 during his 3 weeks' em- ployment by the Journal, Houck has been receiving some income from a poultry farm operated by him and his wife at their home. This was not a new activity, the poultry farm having been operated by Houck while he was employed by the respondent and having been ,one of the reasons for his preferring the early trick on the copy desk. The income from the poultry farm increased approximately •$15 a month subsequent to Houck's discharge, but the uncontradicted testi- mony is that this increase was due not to additional time and effort expended by Houck while otherwise unemployed, but to the enlarge- ment of the poultry farm itself. It is our conclusion that Houck's discharge was due to the respond- ent's desire to rid itself of the most prominent and active Guild member and officer among its employees, the incident of the Paris story serving only as the occasion for the discharge. At the very beginning of Guild activity at the News-Post, Baskervill indicated that Guild organization and membership would change the relation- ship between the employees and the management. This was presum- ably especially true with respect to employees such as Houck whose activity in Guild affairs was outstanding. As Guild organization progressed, the opposition of the respondent's supervisory personnel appeared unmistakably in the attitude of and expressions by the assistant make-up editor, Bien, the sports editor, Pippen, and the head copy editor, Perkins. The cumulative effect of incidents sepa- rately trivial may not be disregarded. The Guild's decision in June 1937 to affiliate with the C. I. 0. and to extend its jurisdiction to non-editorial employees, followed by Houck's organizing drive in the non-editorial departments, precipitated action by the respondent. Illuminated as it is by Bien's remarks, the selection of the editorial personnel discharged in July 1937 for reasons of "economy" must be attributed at least in part to the Guild's change in affiliation and policy. We are led to this conclusion by Baskervill's tacit admission at the hearing that the alleged necessity to economize resulted in discharges in the editorial department only; by the fact that Guild membership at the time was limited to that department by reason of the Guild's jurisdictional policy prior to June 1937, and that extension of Guild membership to other departments was therefore dependent primarily upon the efforts of editorial employees who were already Guild members; and by the respondent's disregard of considerations of, seniority and ability, in selection of the men to be discharged, coupled with the number of Guild members included among them. DECISIONS AND ORDERS 1315 Houck escaped the July discharges, but was retained for less than a month afterwards, a period of time during which he actively solicited non-editorial Guild memberships. Before coming to the News-Post, he had had a long and somewhat varied newspaper career which included a substantial period of service on other Hearst papers. He had never been discharged because of unsatisfactory work; and his assignment to the early trick on the News-Post copy desk, carrying with it the responsibility of supervising the desk for almost 2 hours each morning and the further responsibility of handling the wire work, was a recognition of his experience and ability. Of Houck's two demotions from the early trick, one ad- mittedly had no connection with the calibre of his work; and on both occasions he was subsequently reinstated without further pen- altyr If Houck's version of the events of August 5, 1937, is accurate and his oversight resulted in only a 15-minute delay in discovery of the Associated Press dispatch from Paris, we cannot believe that the incident in question was the real reason for his discharge. Nor does the respondent's version of the events of that day, if true, alter our belief. Perkins had on at least one other occasion discharged an employee for cause without first consulting Baskervill, and would certainly have been justified in taking similar action in Houck's case, either at the time the error was discovered or when Houck left for the, day, if the latter's offense was as serious as the respondent would now have us believe. Our belief that Houck's overlooking the Paris story was not the motivating cause for his discharge finds further support in the fact that prior similar errors on the copy desk had not been punished by discharge. Houck's failure to report Murphy's condition the morning of August 5, in view of Murphy's satisfactory performance of, his duties the preceding Monday and Tuesday, seems to us to have been not unreasonable. No effort was made by Houck to conceal Murphy's condition from Perkins, and it is clear that Houck had no reason to believe that he could discipline Murphy, himself, beyond taking him to task as he did. The emphasis which the respondent now places upon Houck's conduct with respect to Murphy must be regarded as an afterthought intended to bolster the position that Houck was discharged because he was derelict in his duty. That Houck's discharge was followed by the almost complete dis- appearance of Guild membership among the respondent's employees is hardly a coincidence. The refusal of the circulation supervisors, after Houck had been discharged, to sign Guild membership cards and to pay dues is specific evidence supporting the conclusion to which we would in any case have been led by our experience with such events, namely, that the decline in Guild membership was the effect of Houck's discharge. 1316 NATIONAL LABOR RELATIONS BOARD We find that the respondent has discriminated in regard to the tenure of employment of Frederick H. Houck because of his mem- bership and activity in the Guild, thereby discouraging member- ship in the Guild, and that by such discrimination it 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 with respect to Frederick H. Houck, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow of commerce. V. THE REMEDY We have found that the respondent discharged Frederick H. Houck because of his membership and activity in the Guild, thereby dis- couraging membership in the Guild and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act. We shall, therefore, order the respondent to cease and desist from such unfair labor practices. In order to effectuate the policies of the Act, we shall further order the respondent to offer Frederick H. Houck immediate and full reinstatement without prejudice to his seniority and other rights and privileges, and to make him; whole for any loss of pay he has suffered by reason of his discharge, by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstate- ment, less his net earnings 8 during said period, including the 10 weeks' severance pay received by him at the time he was discharged. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : '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 his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, S N L R B 440 Monies received for work performed upon Federal , State, county, municipal , or other work -relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other government or governments which supplied the funds for said work-relief projects DECISIONS AND ORDERS CONCLUSIONS OF LAW 1317 1. The Baltimore Newspaper Guild is a labor organization within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the tenure of employment of Frederick H. Houck and thereby discouraging mem- bership in a labor organization, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, 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. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Hearst Consolidated Publications, Inc., and its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the Baltimore Newspaper Guild, affiliated with the Committee for Industrial Organization, or any other labor organization of its employees at the respondent's plant in Baltimore, Maryland, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; (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 con- certed activities for the purpose of collective bargaining or other mutual aid or 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) Offer to Frederick H. Houck immediate and full reinstate- ment to his former position without prejudice to his seniority and other rights and privileges; (b) Make Frederick H. Houck whole for any loss of pay he has suffered by reason of his discharge by paying to him a sum of money equal to that which he would normally have earned as wages during 147841-30-vol 10-84 1318 NATIONAL LABOR RELATIONS BOARD the period from the date of his discharge to the date of such offer of reinstatement , less his net earnings during said period, including the 10 weeks' severance pay received by him at the time of his discharge; deducting , however, from the amount otherwise due him, monies re- ceived by him during said period for work performed upon Federal, State , county, municipal , or other work-relief projects, and pay over the amount, so deducted , to the appropriate fiscal agency of the Fed- eral, State , county, municipal , or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post and keep posted in conspicuous places throughout its plant at Baltimore , Maryland , for a period of at least sixty (60) consecutive days, copies of this Order together with a statement that the respondent will abide by and comply with the provisions of the Order; (d) Notify the Regional Director for the Fifth Region in writing within ten ( 10) days from the date of this Order what steps respond- ent has taken to comply therewith.