Knoxville Publishing Company

National Labor Relations Board - Board Decisions

May 26, 1939

12 N.L.R.B. 1209 (N.L.R.B. 1939)

In the Matter of KNOXVILLE PUBLI SHING COMPANY and AMERICAN
NEWSPAPER Guxu, THE KNOXVILLE NEWSPAPER GUILD
Case No. C-523.-Decided May 26, 1939
Newspaper Printing and Publishing BusinessInterference, Restraint, or
Coercion: expressed opposition to labor organization , threats of retaliatory ac-
tion ; engendering fear of loss of employment for union membership or activity ;
disclosure of identity of union members , efforts to secure ; union affiliation and
activity, questioning employees regarding-Employee Status : employed person
having contract to be employed by another employer, employee of other employer
upon terminating then employment and reporting for work-Discrimination:
discharges of, sustained as to three employees, dismissed as to one-Reinstate-
ment Ordered : for employees discriminated against-Back Pay: awarded to
employees discriminatorily discharged-Unit Appropriate for Collective Bar-
gaining: employees who devoted all or a substantial portion of their time to
editorial or reportorial work, excluding clerical and supervisory employees ; no
controversy as to-Representatives : proof of choice : membership list compiled
from official union records-Collective Bargaining: meeting with representatives
but with no bona fide intent to reach an agreement; counterproposals , failure
or refusal to make; alleged bad faith of labor organization and conspiracy of
labor organization with others, not proved.
Mr. John 7'. Mahoney and Mr. Maurice J. Nicoson, for the Board.
Frantz, McConnell d Seymour, by Mr. R. M. McConnell and Mr.
T. G. McConnell, of Knoxville, Tenn., for the respondent.
Mr. Herbert G. B. King, of Chattanooga, Tenn., and Mr. Abraham.
J. Isserman, of Newark, N. J., for the Guild.
Mr. Arnold R. Cutler, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American News-
-paper Guild, acting in behalf of its affiliate, The Knoxville Newspaper
Guild, herein called the Guild, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued its complaint, dated January 11,
1938, against Knoxville Publishing Company, Knoxville, Tennessee,
herein called the respondent, alleging that the respondent had engaged
12 N.L. R.B.,No.119.
1209
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. A copy of the complaint, accompanied by notice of
hearing, was duly served upon the respondent and upon the Guild.
On January 29, 1938, the respondent filed its answer to the complaint.
At the hearing the complaint and the answer were duly amended.
The complaint, as amended, alleged in substance, so far as here
material, that the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act; that it discharged Kenneth Harrison on or about May
31, 1937, Harry Human on or about June 1, 1937, Lucia Brown on
September 4, 1937, and Lula Hubbell 1 on October 23, 1937, because
they joined and assisted a labor organization; and that the respondent
refused to bargain collectively with the Guild as the exclusive repre-
sentative of its employees within an appropriate unit. The answer,
as amended, denied the material allegations of the complaint, as
amended, alleged affirmatively that the respondent was not engaged
in interstate commerce, and requested that the complaint be dismissed
by reason of the allegations contained' in such answer, as amended.
Pursuant to the notice a hearing was held at Knoxville, Tennessee,
on February 3 to 5, 7 to 12, and 14 to 16, 1938, before Albert L. Lohm,
the Trial Examiner duly designated by the Board. The Board, the
respondent, and the Guild were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to produce evidence bearing upon the
issues was afforded all the parties. At the close of the hearing, counsel
for the Board moved that the pleadings be conformed to the proof.
This motion was granted by the Trial Examiner. Also counsel for
the respondent moved to dismiss the complaint, and requested leave
to file thereafter a written specification of the grounds therefor. The
Trial Examiner granted the request but reserved his decision on the
motion. During the course of the hearing, the Trial Examiner made
various other rulings on motions and objections to the admission of
evidence. The Board has reviewed these rulings and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On March 16, 1938, the respondent filed its written motion to dis-
miss the complaint, stating as grounds thereof that the relation be-
tween the respondent and its editorial employees is not interstate
or foreign commerce, does not affect, burden, or obstruct the flow
thereof, nor tend to do so, and is not subject to Federal control ; and
that the record fails to sustain the alleged unfair labor practices
t Also referred to in the record as Lola Hubbell.
KNOXVILLE PUBLISHING COMPANY 1211
averred in the complaint. On April 8, 1938, the Trial Examiner filed
his Intermediate Report, finding that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the Act, and recommending that the respondent cease and desist
from its unfair labor practices and take certain specified affirmative
action to remedy the situation brought about by the practices. The
Trial Examiner likewise denied the motion of the respondent to dis-
miss the complaint. For reasons hereinafter set forth, this ruling is
hereby affirmed.
On April 18, 1938, the respondent filed exceptions to the Inter-
mediate Report and on June 20 submitted a brief in support thereof.
Pursuant to notice a hearing for the purpose of oral argument on
the exceptions and record was held before the Board on June 21, 1938,
in Washington, D. C. The respondent and the Guild were represented
by counsel and participated in the argument. On June 30, 1938, the
respondent submitted a supplemental brief.
The Board has reviewed the exceptions to the Intermediate Report,
and in so far as they are inconsistent with the findings, conclusions
of law, and order below finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Tennessee corporation with its principal place of
business and plant at Knoxville, Tennessee, is engaged in the business
of publishing, selling, and distributing The Knoxville Journal, herein
called the Journal, a morning newspaper. The average net paid daily
circulation of the Journal during the 12-month period ending March
31, 1937, was 50,308 newspapers on weekdays and 54,271 on Sundays.
The Journal is published at the Knoxville plant. Ninety-five per
cent of the materials and supplies used by the respondent in the
course of publication are purchased and brought to its plant from
without the State of Tennessee. Paper is obtained from Canada, ink
from Missouri, type material from Ohio, linotype machines from New
York, and the repair parts for these machines from Louisiana. Dur-
ing the year 1937 the cost of such materials and supplies was approxi-
mately $165,000. Seven and one-half per cent of the weekday circula-
tion of the Journal and 7.4 per cent of the Sunday circulation are
delivered to destinations outside the State of Tennessee. The re-
spondent for the year ending March 31, 1937, printed in the aggregate
approximately 15,746,404 copies of the weekday edition, of which
1,180,980 copies went into interstate commerce, and 2,822,092 copies
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Sunday edition, of which 208,835 copies became part of sucht
commerce.
The respondent is a member of the Associated Press.2 The respond-
ent as a member of the Associated Press is furnished a full-lease night
wire service of approximately 60,000 words of news per day, of which,
about 20,000 words are regularly published in the Journal. About
70,000 words of local news are gathered each day by the respondent,
of which the Associated Press has the exclusive right of republication.
It uses daily approximately 500 words of this news.
About 15 per cent of the space in each edition of the Journal is-
devoted to syndicated features and cartoons, all of which are obtained'
from New York, Connecticut, and Iowa. In addition, about 10 per-
cent of the advertising appearing in each edition is obtained from,
without the State. In this connection the respondent employs adver-
tising representatives with offices in a number of States.3
H. THE UNION
The Knoxville Newspaper Guild is a labor organization affiliated
with the American Newspaper Guild, a labor organization, which in
turn is affiliated with the Committee for Industrial Organization. The
Knoxville Newspaper Guild admits to membership all editorial and
reportorial employees 4 in the city of Knoxville.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Guild was organized at Knoxville in May 1936. It comprised
two branches, one branch consisting of editorial employees of the
respondent,® the so-called "Knoxville Journal Unit," the other, of
editorial employees of the Knoxville News-Sentinel, the publisher-
of an afternoon newspaper at Knoxville. In April 1937 the Guild and'
its branches were reorganized.
Shortly after the formation of the Guild in 1936, Claggett, the-
respondent's general manager in charge of all departments, began
8 We take notice , as a matter of common knowledge , that the Associated Press is an,
agency engaged in the collection and dissemination of news on a Nation-wide and inter-
national basis ; that it collects news from various sources throughout the United States
and foreign countries , and compiles and distributes the same to newspapers
8 National Labor Relations Board v. The A. S. Abell Company, 97 F. (2d ) 951; National
Labor Relations Board v. Star Publishing Company, 97 F (2d ) 465 aff'g 4 N. L. R. B. 498;
The Associated Press v. National Labor Relations Board, 301 U. S. 103; Santa Cruz Fruit
Packiny Company v. National Labor Relations Board, 303 U S. 453.
4 "Editorial employees" or sometime "editorial" as used herein at times includes persons
engaged in reporting.
5 At that time , and until on or about July 16, 1936, the business of the respondent was,
administered in receivership . The nature of the receivership is not disclosed by the
record.
KNOXVILLE PUBLISHING COMPANY 1213
to express open opposition to the Guild in statements to employees
of the editorial department. These statements continued after ter-
mination of the receivership in July." Claggett told the employees
in substance that the Guild had "no place" in the editorial department
of a newspaper, that a labor organization among editorial employees
violated "freedom of the press," 7 and that any member of the staff
who joined the Guild could expect no increase in salary and would
forfeit any expectancy of promotion. He announced three principles
which the editorial staff was to follow : loyalty, no drinking, and
disapproval of the Guild.
In August 1936 the managing editor in charge of the editorial
department, one McNitt, informed an employee who requested an
increase in salary, "Well, I told a number of people out there in the
editorial department about it, and I thought that we would get
around to you before this. No one who is connected with the Guild
can get a raise or promotion on the Journal." At the hearing McNitt
testified that he could not remember making such a statement. In
view of the positive evidence that he had so stated, and the record as
a whole, we are satisfied that the statement was made.
In the early part of September 1936 Claggett in the course of
hiring two editorial employees, informed each that there were two
things which were prohibited, drink and Guild affiliation. This was
said in the presence of McNitt. One of the employees also was told
that the respondent was attempting to rid its organization as promptly
as it could of all employees who joined the Guild. Both employees
were hired only after they had indicated that they were neither
affiliated with nor interested in the Guild. At the hearing McNitt
denied that Claggett made the above statements. Claggett did not
testify. We have no doubt that Claggett did make the statements.
A few days after the incident Claggett cautioned one of the new
employees not to expect an increase in salary or promotion if he
joined the Guild.
Other persons seeking or obtaining employment with the respond-
ent during the period under review encountered similar experiences.
One applicant was interrogated by McNitt concerning his opinion
of the Guild, and then told, "We are opposed to the Guild here. Of
course you may join the Guild, but if you do you won't be promoted
or be given a raise in salary." Another was informed by McNitt that
9 See footnote 5.
1In The Associated Press v. National Labor Relations Board, 301 U. S. 103, the United
States Supreme Court stated : "Does the statute [ the Act ] as applied to the petitioner
[Associated Press], abridge the freedom of speech or of the press safeguarded by the
First Amendment ? We hold that it does not . . . So it is said that any regulation
protective of union activities , or the right collectively to bargain on the part of such
employees , is necessarily an invalid invasion of the freedom of the press. We think the
contention . . . an unsound generalization."
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the management was not in favor of union labor in its editorial de-
partment, that if he proposed joining a labor organization he had
better seek employment elsewhere. While McNitt denied these in-
quiries and statements at the hearing, we attach no weight thereto.
We already have indicated our disbelief of his denials. The intent
and subject of McNitt's statements are consistent with similar state-
ments made during the period by other managerial employees and
officials of the respondent. The record plainly shows that the re-
spondent was following a planned course of discrimination in its
employment of persons for the editorial staff. In August 1937 the
president of the respondent stated to an applicant that membership
in the Guild was a hindrance to self-advancement "in the writing end
of newspaper work." Upon being told that the applicant already
was a member of the Guild, the president advised his considering re-
signing from that organization and stated that when the applicant
had resigned a position would be available. The applicant did not
resign, and never was hired.
The respondent called as a witness one employee who testified that
on July 19, 1937, he was employed by the respondent although they
respondent then knew that he was a member of the American News-
paper Guild, the labor organization with which the Guild is affiliated.
The record shows that this employee joined the American News-
paper Guild before coming to Knoxville, that he never disclosed
his affiliation to any of the editorial employees, save one who termi-
nated his employment with the respondent shortly after the employee
was hired, that he never was active in the local Guild, and that he
did not attend any of its meetings. We see nothing in these circum-
stances which warrant a conclusion that the respondent's policy in
hiring editorial employees was not one of interest concerning their
membership in the Guild.
The editorial department conducts regular staff meetings from time,
to time for the purpose of discussing work problems. In August
1936, shortly after McNitt was employed as managing editor, a staff
meeting was held in the course of which McNitt stated that he
"thought I could do more for members of the staff than a union
could do." At the hearing McNitt was asked :
Q. What did you think you could do for the staff that the
union could not do?
A. [By McNitt] Well, I was not sure whether I could do
anything.
Q. What made you think you could do more for the staff than
the union could do?
A. I had no very good reason for thinking that; I just knew
that I was on the ground and in constant touch with other mem-
KNOXVILLE PUBLISHING COMPANY 1215
bers of the management, and that they, I hoped, would have
respect for my judgment on conditions in the department, and
would abide by recommendations I might make for increases in
pay and so on .. .
In April 1937, after the decisions of the United States Supreme Court
were handed down in the Jones & Laughlin 8 and related cases,
McNitt stated at a staff meeting that the employees could either
belong to the Guild or not, as they saw fit, but that he "knew then
what the management was going to do for its employees without
regard for the union, independently of the union," that the respondent
would increase salaries as soon as business warranted." At another
staff meeting held about the same time the respondent's president
stated that there was "no place in the newspaper business for organi-
zation." He dilated in the same vein at still another meeting, stating
that there was considerable "unrest" prevailing and the employees
should remain "free and independent men," that when working as a
shoe clerk he had refused to join a union and those who had joined
only recently came to him for assistance because of their impoverished
state, that John L. Lewis was an objectionable person.'"
As stated below, in May and June 1937 the Guild sought to bargain
collectively with the respondent for the purposes of reaching an
agreement covering wages, hours of service, and other working con-
ditions of persons employed in the. editorial department. During, this
period McNitt stated at a meeting of the editorial staff that if the
Guild succeeded in its organization at least five employees who were
present would lose their positions. McNitt testified that "to the best
of [his] remembrance" what he had said was, "if the proposed con-
tract should be put into effect it would increase the expense of the
department to the point where it would be necessary to lay off or
dismiss five members of the editorial staff." We are satisfied in the
light of the respondent's hostility to the Guild, its increase of the
salaries of 11 editorial employees, as hereinafter mentioned, when
the negotiations with the Guild collapsed, and the entire record, that
McNitt's statement was intended and understood as a threat, not as
8 National Labor Relations Board v. Jones d Laughlin Steel Corporation , 301 U. S. 1
8In Virginia By Co v System Federation No. 40, Railway Employees Department
of the American Federation of Labor, et at ., 84 F. (2d ) 641, 643, ( C. C. A. 4th) aff'd
300 U S 515 , the Circuit Court commented : "any sort of influence exerted by an em-
ployer upon an employee , dependent upon his employment for means of livelihood, may
very easily become undue , . . . and it is a violation of the terms, as well as the spirit
of the act [ Railway Labor Act] for the employer to address arguments to the employee
couched in such terms , or presented in such manner, as to teach the employee to fear
that be may suffer from the action of the employer if he does not follow the wishes of
the latter in making his choice of representatives " See also National - Labor Relations
Board v. The Falk Corporation , 102 F ( 2d) 383 (C C. A 7th) ; Virginia Ferry Corpora-,
tion V. National Labor Relations Board, 101 F. (2d) 103 , 105-106 (C. C. A. 4th).
w John L. Lewis was the chairman of the Committee for Industrial Organization
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an objective statement of possible consequences. About the same
time, McNitt said to one employee that he thought the president of
the respondent would close the business rather than enter into a
contract with the Guild."
The respondent also sought to utilize employees for purposes of
gathering information concerning union membership and affairs.
McNitt called one employee to his office and stated that he was happy
to learn that the employee had not joined the Guild. Thereafter, at
various times, McNitt asked this employee whether he knew of any
employees who had recently joined the Guild. McNitt testified that
he could not remember such conversations, but admitted inquiring of
one employee if he belonged to the Guild, because he was "curious to
find out who belongs and who does not." We have no doubt that
McNitt went further in satisfying his "curiosity," and deliberately
attempted to make use of the employee for eliciting such information.
At one of the staff meetings in late 1936 McNitt requested the editorial
employees to become each a "committee of one" and to report to him
any "acts of disloyalty."
At the hearing evidence was introduced showing that McNitt, in
giving an instruction sometime in July 1937 about the writing of a
news item dealing with one Moutoux, then president of the Guild, and
Moutoux' involvement in a strike disturbance at Alcoa, Tennessee,
expressly directed that the incident be written in such fashion as
"to bring out emphatically the connection with the Guild, and also ...
to put him [Moutoux] in the worst light ... governed by the facts."
Subsequent publication in the Journal of this news item, written as
McNitt had instructed, occasioned considerable local comment. While
it is true that the publication of this news item, under the facts here
presented, raises a strong suspicion that the respondent in so doing
was motivated solely by an intent to interfere with and coerce its
employees in the exercise of their right to organize, still, we are not
entirely satisfied that despite its bias, the news item was not intended
for regular news consumption. Accordingly, we shall not consider
the foregoing evidence in determining the issues herein.
It is manifest that, from the very inception of the Guild, the re-
spondent has interfered with, restrained, and coerced its editorial
employees regarding their becoming members of and their member-
ship in the Guild. Through Claggett, McNitt, and the respondent's
president, the respondent repeatedly voiced to the editorial employees
its general opposition to the Guild and to their joining that organiza-
tion. Considered in the light of the respondent's economic power
11 Matter of Dunbar Glass Corporation and Committee for Industrial Organization,
6 N. L. R . B 789, 792; Matter of McNeely cE Price Company and National Leather
Workers Association, Local No. 30 of the 0. I. 0., 6 N . L. R. B. 800, 804.
KNOXVILLE PUBLISHING COMPANY 1217
over its employees, a power which the respondent itself adverted to,
these anti-union statements necessarily did intimidate the editorial
,employees in the enjoyment of their right to self-organization.12
Equally coercive and an interference were other acts of the respond-
ent. Its threats to both old and new employees to withhold promo-
tion of and not to increase the salaries of those who joined the
Guild,13 its statements to new employees that it was attempting to
rid itself of Guild members, its requirement of disinterest in the
Guild as a condition or desideratum in hiring new employees for
the editorial department, its assertion that the management could
do more for the employees than the Guild would be able to accomplish
and that salaries would be increased without regard to the Guild,
thereby implying that the employees would derive no benefits from
Guild affiliation, its interrogation of employees about the names of
those who joined the Guild and its request of employees for similar
information concerning "acts of disloyalty," all constituted interfer-
ence, restraint, and coercion, within the meaning of the Act. The
statement of McNitt at the time negotiations for a contract were pend-
ing, to the effect that five employees would have to be discharged
if the Guild succeeded in obtaining a contract, and his further
statement that operation of the respondent's business probably would
'be discontinued in such an eventuality were especially intolerable.
Not only were these statements an interference with and restraint
upon self-organization, but they plainly were designed to "undercut"
the authority and effective action of the collective bargaining repre-
sentatives which a majority of the editorial employees in an ap-
propriate unit had designated to represent them. It is precisely such
interferences with the right to bargain collectively which the Act in
guaranteeing that right sought to obviate.
We find that the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act.
B. The discriminatory discharges and allegedly discriminatory
discharge
Harry Human was employed prior to May 28, 1937, by a newspaper
publisher in B,ichmond, Virginia. On May 28 he received a tele-
graphic -communication from McNitt concerning a position with the
respondent for Which Human shortly theretofore had made applica-
tion. This communication stated, "Glad to talk to you about job.
12 See cases-cited indfootnote'9.
32 Matter of William 1Randolph Hearst, at al. and American Newspaper Guild, Seattle
,Chapter , 2 N. L. R B . 530, 542 modified in part National Labor Relations Board v.
William Randolph Hearst at . al., 102 F. ( 2d) 658 (C. C. A 9).
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Have vacancy now. When do you plan to be in Knoxville ?" Human
replied by telegram saying that he could come to Knoxville the fol-
lowing Monday, May 31. Later in the day Human received a tele-
phone call from McNitt. In the conversation which followed McNitt
inquired into Human's capacity to fill the vacant position, his age,
the nature of the work Human had been performing at Richmond,
and the reasons for his seeking employment with the respondent.
Human testified that McNitt asked him when he, Human, "would
want to come" to Knoxville and then offered him employment in the
position which was available at a monthly salary of $200. Human
further testified that he accepted the offer as satisfactory and told
McNitt that he would arrange with his employer to leave.l" McNitt's
version of this portion of the conversation is in substance that he
informed Human that the position of assistant news editor was
available, i. e., copy reader at the copy desk ; that Human expressed
a desire to go to Knoxville and discuss the matter with McNitt; that
McNitt replied : "No . . . I think that this talk I have had with you
will be sufficient for now. What I am going to do is get in touch
with some of your former employers"; that McNitt told Human "that
if I should decide to have him I would let him know. He (Human)
said that his home was here and he had been planning to come down
anyway, and I said `Well, if you are going to anyway I shall be glad
to see you, but don't come down on my account', and he agreed to
come down on his own."
Following this conversation, Human proceeded to terminate forth-
with his employment at Richmond. He notified his employer of his
resignation, explaining that "the Journal wanted a man in a hurry
and I would like to get away as soon as possible." His employer
agreed to release him Monday night, May 31; however, it was under-
stood that Human would work all day Saturday and Sunday, May
29 and 30, although these were not his workdays. On either Saturday
or Sunday Human sent a telegram to McNitt stating that he would
arrive in Knoxville on Tuesday, June 1. On Monday night, May 31,
Human left Richmond for Knoxville.
We are satisfied and find that the respondent through McNitt on
May 28, 1937, promised Human to employ him as a copy reader at the
copy desk of the respondent at a salary of $200 a month, it being un-
derstood that Human would promptly terminate his employment at
Richmond and report for work with the respondent during the week
of May 31; that Human on May 28 undertook such employment with
14 In response to interrogation by the respondent ' s counsel , Human testified :
A (Human ) ' I took It that I had been definitely promised a job when I was offered
$200 a month to take a specific job
Q In other words, your testimony is you thought you had a contract of employment?
A. Yes, sir.
KNOXVILLE PUBLISHING COMPANY 1218
the respondent and in reliance upon the respondent's promise termi-
nated his employment in Richmond. The making by McNitt of his
long-distance telephone call of May 28, as well as the nature of his
inquiry, demonstrate that McNitt then proposed something more than
a mere gathering of information respecting Human. The respondent
needed someone to fill the vacant position and in that connection, prior
to the exchange of telegrams on May 28, Claggett had mentioned to,
McNitt that Human sought employment with the respondent. It
was not unusual for McNitt to employ persons out of his presence.
He testified : "That is the way I hired probably 90 per cent of the
persons I hired, either by telephone or letter." And Human testified,
"I have hired men that way; I have been hired that way before."
Human had had about 16 years' experience in the newspaper business
and was competent to fill the position which was available. We find
it impossible to believe that he would have terminated his employment
in Richmond had McNitt not promised him employment as a copy-
reader.
Human reached Knoxville on June 1 and telephoned McNitt of
his arrival. McNitt told Human to come to McNitt's office, which,
Human did about 4 p. m. There McNitt discussed with Human var-
ious matters, including the operation of the copy desk. McNitt in-
vited Human to meet and become acquainted with the respondent's-
president, its vice president, and its general manager; and to have-
the respondent's president explain "the situation" in Knoxville. A
conversation between Human, McNitt, and these three officials there-
after ensued. The discussion centered about newspapers in general,
with the respondent's president commenting on what progress the-
Journal was making in Knoxville. He told Human that he "wanted:
a fine newspaper out of" the Journal. Some of the conversation
touched upon Human's "personal views about things, whether I was.
conservative or liberal." Toward what proved to be the end of the
conversation, the respondent's president asked Human what his "at-
titude" was toward the "Guild." Human replied that he was "a
member of the Guild,'5 and had been up East," that the newspapers-
there accorded recognition to that labor organization. The conver-
sation then concluded with McNitt's instructing Human to await him
in McNitt's office. About 15 minutes later Human was joined by-
McNitt and told that McNitt was not ready to have Human begin,
work, that Human should return the following day at the same time.
The next day Human returned, intending to commence work, and was
told by McNitt that McNitt still "was not ready" to announce the
change, and that Human should return the succeeding day. McNitt
did mention, however, that Human's work at the copy desk would
Human's ref?rence was to the American Newspaper Guild.
169134-39-vol. 12-78
1220 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:be the 'late shift from 6 p. m. until the daily final edition was pub-
lished. Although Human made several attempts thereafter to be
-placed at work, the respondent refused to do so. Another employee,
one Hart, was hired for the position. Human testified that he knew
nothing of Hart's obtaining the position until Hart in fact was put
to work. Hart was not a member of the Guild ' or the American
Newspaper Guild.
McNitt testified for the respondent with respect to the conversa-
tions had with Human, and other matters, following Human's arrival
-at Knoxville. The meeting of June 1 between Human and McNitt,
-as described by McNitt, was merely an investigation into Human's
-qualifications for the position of copy reader, concluding with Mc-
Nitt's informing Human that he would "have to wait before I could
definitely give him a decision." Similarly, according to McNitt, "sub-
stantially all that transpired" at the meeting in the office of the re-
Ispondent's president was a further investigation into Human's qualifi-
cations. McNitt did not "remember" whether the respondent's presi-
=dent interrogated Human about Human's Guild affiliation.
McNitt further testified that on June 1, 1937, Hart, the individual
,employed as copy reader by the respondent, made personal applica-
tion of McNitt for a position. Whether Hart's visit preceded or fol-
lowed McNitt's meeting of that day with Human is not satisfactorily
set forth. McNitt stated that he was "not sure which was the first of
the two to come to my office, whether it was Hart or whether it was
Human," that Hart came "about the time" of Human's telephone call
-to him. Nevertheless, McNitt also testified that the reason he was
hesitating about putting Human to work on June 1 was because "I
-had another man I was also considering." McNitt testified that he
-did not believe he informed Human on June 1 about Hart. Thereafter
-on June 1, apparently following his meeting with Human, McNitt,
according to his testimony, hired Hart for the position of copy reader.
McNitt stated that Hart "looked to me like a more capable and a more
promising man for the position" than Human, that information given
him by a former employer of Human, one Harris, disclosed that Hu-
man "was a good average newspaper man," but no better, and "had
.established a poor [indebtedness] record." However, whether McNitt
-spoke with Harris before or after Human departed from Richmond
for Knoxville is not clear. On direct examination McNitt stated, "I
believe it was at that time [his meeting with Human on June 1], I
believe I excused Human from my office and called Harris." On cross-
-examination, he stated "he [Human] came in the office [on June 1]
... I had previously phoned Julian Harris"; again, "I am not en-
tirely sure about that. It was after I had first seen Human, after he
Thad come into the office, and it was also after I had seen Hart." McNitt
KNOXVILLE PUBLISHING COMPANY 1221
testified that one day, "it may have been two days" after June 1, he
told Human of Hart 's employment . He further testified that he had
Human come back the succeeeding days because he, McNitt, thought
another position would become available , but that no such vacancy
appeared.
There can be no doubt of the unyielding hostility and opposition
which the respondent entertained , during the period in which Human
made his application , toward affiliation by members of its editorial
staff with the Guild or with the American Newspaper Guild. The
facts heretofore set forth show that McNitt, as head of the editorial
department , played a leading role in the effort of the respondent to
discourage Guild affiliation and to avoid employing Guild members.
As stated above, McNitt made anti-union statements at editorial-staff
meetings, told employees that Guild members would not be promoted
or given a salary increase , and informed at least one applicant for a
position on the staff that the respondent was not in favor of union
labor in its editorial department and that if the applicant proposed
joining a labor organization he would not be hired . As heretofore set
forth, the respondent 's president assumed a similar position at edi-
torial -staff meetings and with regard to the qualifications of appli-
cants . In May and June 1937, while negotiations between the Guild
and the respondent were taking place, McNitt made his threat, to
dismiss employees if the Guild succeeded in obtaining a contract.
We are convinced that the respondent , in furtherance of its anti-
Guild policy, in effect discharged Human on June 1, 1937, because of
his membership in the American Newspaper Guild. It is plain that
when Human reported to McNitt for work on that day, McNitt re-
•ceived and treated him as an employee and fully intended to put him
to work. Human then held the status of an employee . The men
-discussed , among other things, the operation of the copy desk. We
,do not believe that McNitt was then concerned either with Human's
-qualifications, or with the relative capacities of Human and Hart. No
mention was made to Human of the pending application of Hart.
Indeed, as stated above , McNitt was not sure at the hearing whether
it was Hart or Human who came first to his office on June 1. We
believe that the meeting with the respondent's officials on June 1 had
as its purpose acquainting Human in a friendly way with his superiors,
not a further inquiring into his qualifications . McNitt testified, "I
made it a point each time I hired a man-I may have overlooked some,
but in most cases when a new man came to work I made it a point to
have him meet [the respondent 's president] as soon as possible." We
are satisfied that Human's disclosure of his membership in the Ameri-
can Newspaper Guild, upon inquiry by the respondent 's president, led
directly and proximately to the respondent 's unwillingness to place
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him at work, thereby occasioning his dismissal. We have no doubt
that neither McNitt, the respondent's president, nor any other of the
respondent's officials theretofore knew of Human's affiliation. We do
not believe that McNitt in asking Human to return on successive days
after June 1 was motivated by an expectancy that another position
would become available. McNitt was simply delaying informing
Human of his loss of position. At their second meeting, McNitt men-
tioned that Human's work at the copy desk would be the late shift;
yet Hart, according to McNitt, already had been employed for the
position. Hart's employment, we feel, was merely a substitution of
another employee for Human after it became apparent that Human
would not be retained.
While we have found that Human held the status of an employee
when the respondent discriminated against him, it is plain that even
were this not so the respondent nevertheless discriminated against
him, within the meaning of Section 8 (3) of the Act. We have stated,
"It is not essential in all cases to a finding of unfair labor practice
under this section of the statute that the status of an employee be held
by the person against whom the alleged discrimination has been
directed, for the provision thereof has express application to a
discrimination as to hire." 16
We find that the respondent discharged and refused employment
to Harry Human on June 1, 1937, because of his membership in the
American Newspaper Guild, thereby discriminating in regard to the
hire and tenure of said employee and discouraging membership in a
labor organization; that by said discharge and refusal of employment
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
Since June 1, 1937, Human has not had employment which was or
is regular or substantially equivalent to the position of copy reader
for which he had been employed. He has earned $280 since that date.
Lucia Brown and Lola Hubbell, following the spring of 1937, com-
prised the "society division" of the respondent's editorial department.
They wrote various news items and features appearing in the "society
columns" of the Journal. As part of their work they attended and
reported various social affairs, such as "Junior League meetings and
cotillion, sorority, [and] debut parties." Hubbell held the title of
"society editor"; Brown was her assistant and the person in charge
of the "woman's page" office.
The two women were members of the Knoxville Journal unit
of the Guild from the time of its reorganization in April 1937. Hub-
16 Matter of The Kelly -Springfield Tire Companj and United Rubber Workers of America,
Local No. 26 and James M Reed and Minnie Rank , 6 N L R . B 325, 337 , order enforced
(C. C A 4) C. C. H. Labor Law Service, par . 18196.
KNOXVILLE PUBLISHING COMPANY 1223
bell had previously been a member when the Guild was first formed
in May 1936. Both were active in Guild affairs, and quite apparently
were firm believers in the desirability of unionization for editorial
workers. Brown was elected a delegate to represent the Guild at
meetings of the Central Labor Union, an organization of various labor
unions located in Knoxville and affiliated with the American Feder-
ation of Labor. When the Guild became associated with the Com-
mittee for Industrial Organization, Brown- became its delegate to
the Knoxville Industrial Council, the local central organization of
unions affiliated with the Committee for Industrial Organization.
Hubbell engaged in active solicitation of fellow employees to join
the Guild. She testified that she "asked all those who didn't belong
to join." It is plain that the respondent's management had knowl-
edge of Brown and Hubbell's membership and activities in the
Guild. Brown's election as a delegate to the central labor organiza-
tions was given publicity in Knoxville newspapers, and McNitt testi-
fied that he ascertained the fact of her membership "late in April."
Hubbell, shortly after the formation of the Knoxville Journal unit,
was visited in her office by Claggett, the respondent's general manager,
who inquired whether she, "too," was a Guild member. Hubbell re-
plied affirmatively, saying, "I believe in it, I think it is the right
thing." Claggett, at that time, stated, "I don't think there is any
place in the editorial department for a union organization. I think
you will find it is all wrong."
Brown was discharged by McNitt on September 4, 1937. McNitt
informed her, as she was preparing to leave for a short vacation,
that unfavorable business conditions required him to reduce depart-
mental expenses and that, accordingly, he would have to discharge
her. Brown was earning $100 a month. She asked McNitt whether
any other editorial employee was being dismissed. McNitt replied
that she was the only one at that time. He gave her a letter of recom-
mendation stating in part, "I cannot speak too highly of her general
character and qualifications for newspaper work." He also promised
that "if an opening should occur . . . [the respondent] would get
in touch with her"; however, while the respondent has since had vacant
positions which it filled-indeed, in late October 1937 it substantially
renewed the position Brown had occupied and promoted another em-
ployee to it at $60 a month, it never inquired into the matter of
reemploying Brown.
There is no question of the competency of Brown's work. It is clear
that she was a very capable employee. The respondent urges, however,
that her discharge occurred solely for business reasons. Its general
manager, Page, testified that he and McNitt jointly reached a decision
sometime in September that expenses in the editorial department
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have to be cut, and McNitt testified that in pursuance of such
decision he determined on the afternoon of September 4 to dismiss
Brown. The record shows that on July 1, 1937, at a time when the
respondent contends its business was losing money, the salaries of 11
editorial employees and 4 advertising employees were voluntarily in-
creased by the respondent; that between July 1 and the date of the
hearing increases were granted to employees in all the departments of
the respondent; and that in November or December 1937 the re-
spondent's business concededly was on a profitable basis. In this con-
nection McNitt testified that "about September [the respondent] be-
gan making some real progress"; and that in "November or December"'
it was "making money."
At the hearing Page testified that Brown was discharged for the
additional reason that "she was not needed," that "there was no need
for her at all." The record, however, leaves no doubt of the real neces-
sity which existed for someone to perform the work which Brown,
was doing. This was especially true of the period when Brown would
have returned from her vacation. The middle of September marks
the commencement of the regular fall season of social activities, and a
consequent notable increase in the amount of reporting and writing
required of the society division.
Upon Brown's departure, Hubbell was instructed to perform the
work previously done by herself and Brown. With the advent of the
social season the amount of this work was altogether more than Hub-
bell reasonably could have been expected to accomplish. She was re-
quired to work 7 days each week during September, "working every
minute just as hard as I could work, with no time to draw my breath
hardly." About the second week in October one Smith, the personal
secretary of the general manager, Page, was assigned to work part
of the time in the society division. On October 23, 1937, Hubbell was
discharged. She was summoned to Page's office and told that her
employment was terminated, for "lack of interest" in her work. Hub-
bell pointed out that she had been so overworked she would have had
to quit and rest. At the hearing Page testified that Hubbell "admitted
that she had lost interest," and contended that this alleged change in
attitude had affected Hubbell's ability as society editor, that she was
discharged in consequence. Hubbell denied in her testimony that she
had lost interest, or that she had so admitted. The evidence is clear,
as noted above, that Hubbell worked long and intensive hours after
Brown was discharged, and one Moorefield, the respondent's city editor
until August 1937, testified that Hubbell's work was always very satis-
factory when he knew it, that she had many good ideas, was a hard
worker, and that she never showed any lack of interest in her work.
KNOXVILLE PUBLISHING COMPANY 12257,
Under the circumstances involved, and in view of our discussion below,.
we are unable to give credence to the testimony of Page. Page also,
testified elsewhere in the record that he discharged Hubbell, "Prin-
cipally for economy, with several contributing factors."
Following Hubbell's discharge, Page's secretary, Smith, was given,
Hubbell's position and another employee, one Caldwell, who appar-
ently had not theretofore worked the full workweek, was promoted
to be her assistant. Caldwell also performed what work she formerly
had done as well as that of one other employee, apparently also a part--
time worker. Neither Smith nor Caldwell were or are members of the
Guild.
We are convinced that the discharges of Brown on September 4 and
of Hubbell on October 23, 1937, were in furtherance of the same anti-
Guild policy which the respondent has followed and which was mani-
fest in its discharge of Human. The respondent's president stated'
this policy some time previously when he said that there was "no placer-
in the newspaper business for organization," that those who "weren't
loyal . . . should not be working for the" respondent. Brown was an,
outstanding member of the Guild; her union activities were the object
of local newspaper publicity. We have no doubt that these considera-
tions directed-the respondent in its resolve to be rid of her. It is appar-
ent that the respondent was concerned with something more than sav-
ing the $100 paid her monthly, for the advent of the social season and'
the consequent necessity of securing someone to perform Brown's work-
made it unlikely that such a saving would accrue. The respondent
must have known prior to its discharge of Brown, that Hubbell alone-
could not perform the work and that another person would have to be-
obtained in her stead in the society division. The reason given by
McNitt to Brown as to why she was discharged was nothing more than'
a pretext.
Hubbell's above-mentioned conversation with Claggett bespeaks
her firm belief in the Guild and in unionization for newspaper edi-
torial workers. We find that it was this adherence which finally-
brought about her discharge. The evidence does not establish that-
she lacked interest or initiative in her work; on the contrary, she
assumed with all of her strength and capacity the additional work
burden occasioned by Brown's discharge. Nor are we impressed with
Page's testimony that it was "principally for economy" that Hubbell
was discharged. The saving to which Page adverted did not result
directly from Hubbell's dismissal. Hubbell received a monthly salary
of $100, whereas her successor, Smith, was paid $125 a month.
We find that the respondent discharged Lucia Brown on September
4, 1937, and Lola Hubbell on October 23, 1937, and each of theme be-
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-cause of their membership and activities in the Guild, thereby discrimi-
nating in regard to the hire and tenure of said employees and dis-
,couraging membership in a labor organization; that by said discharges,
and each of them, the respondent has interfered with, restrained, and
-coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
Since their respective discharges, neither of these employees has had
-employment which was or is regular or substantially equivalent to her
former employment with the respondent. Since her respective dis-
.charge, Brown has earned $277; Hubbell, nothing.
Kenneth Harrison was discharged by the respondent on May 27,
1937. We are satisfied from an examination of the record that this
discharge was brought about by Harrison's inability to perform the
new work to which he was assigned. We find that the respondent has
not discriminated against Harrison in regard to his hire or tenure of
-employment, or any term or condition of employment, as alleged in the
complaint, as amended.
C. Refusal to bargain collectively
1. The appropriate unit
The Guild contends that all of the respondent's employees who de-
vote all or a substantial portion of their time in editorial or repor-
torial work, excluding clerical and supervisory employees, constitute
the unit appropriate for collective bargaining purposes. The respond-
ent does not contend that this unit is inappropriate, and we see no rea-
son for not finding it to be appropriate. Accordingly, we find that all
of the respondent's employees wha devote all or a substantial portion
,of their time to editorial or reportorial work, excluding clerical and
supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and that such a
unit insures to the employees 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 the majority in the appropriate unit
It was agreed at the hearing by the parties that during May and
June 1937 the respondent employed 34 editorial and reportorial em-
ployees, the names of these employees appearing in a certain list
furnished by the respondent and introduced in evidence. Eleven of
these employees, however, were not within the appropriate unit found,
either because they worked less than a substantial portion of the time
as editorial or reportorial employees, or because they were clerical
KNOXVILLE PUBLISHING COMPANY 1227
or supervisory employees, or were no longer employed by the re-
spondent. Upon the foregoing evidence and the entire record, we find
that in May and June 1937 the respondent employed 23 employees 17
within the unit found appropriate.
At the hearing the Guild did not have available for introduction
in evidence the original membership application cards of its members,
showing which of the respondent's employees were its members. How-
ever, it submitted for the examination of counsel for the respondent,
the receipt books of its treasurer, and based on such books introduced
in evidence a statement setting forth the names of its members, the-
date each respectively paid his initiation fee, and the date of his
payment of dues. A comparison of this list with the names of the
23 employees found to be within the unit establishes that as of May
8, 1937, there were 15 employees within the unit found appropriate
who were then members in good standing in the Guild. At the hear-
ing for oral argument before the Board, counsel for the respondent
stated that the respondent has never questioned the fact that the
Guild represented a majority of the respondent's employees in the
appropriate unit.
We find that on May 8, 1937, and at all times thereafter the Guild
was the duly designated representative of the majority of the re-
spondent's employees in the appropriate unit, and pursuant to Section
9 (a) of the Act, was the exclusive representative of all the employees
in such unit for purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment.
3. The refusal to bargain
About the beginning of May 1937, the Guild, as collective bargain-
ing representative of the respondent's employees in the unit found ap-
propriate, communicated with the respondent for the purpose of
arranging a conference between it and the respondent concerning wages,
hours of employment, and other working conditions of the employees.
On May 15, 1937, the parties held their first meeting. The Guild was
represented by one Marks and a so-called negotiating committee; the
respondent, by Page, McNitt, and its vice president, Charles Smith,
Jr." After preliminaries, Marks submitted to the respondent's rep-
resentatives for consideration copies of a proposed draft contract be-
11 Hubbell was listed among the 23. Although Page testified that the society editor was
a supervisory employee, counsel for the respondent did not contend that Hubbell should,
be excluded from the appropriate unit. Where, as here, only one union is involved, and'
it desires the inclusion of a supervisory employee who does not perform major supervisory
functions, the desires of the labor organization are determinative Matter of Shell
Petroleum Corporation and Oil Workers International Union, Local No. 367, 9 N. L. R. B.
831.
"With some variations the persons who attended the subsequent conferences were the
same as those who were present at the conference of May 15.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween the Guild and the respondent providing for wages, hours of
employment, and other working conditions of the respondent's edi-
torial and reportorial employees. Page read hurriedly through the
draft contract, observed some of its major provisions, and then stated
that the respondent was unable financially to assume the obligations
which the proposed agreement imposed. He asserted that since the
receivership the respondent had encountered difficulty in making its
business profitable and that its condition "still was not prosperous."
Marks replied that the Guild was prepared in reaching an agreement
to consider the respondent's financial condition and suggested that
the parties should obtain the relevant data. In this connection he
inquired whether the respondent would be willing to have an audit
of its books made, stating that the Guild probably would pay the
cost thereof. Page refused, giving as his reason that some members
of the Guild negotiating committee were employed by a competitor,
the Knoxville News-Sentinel. He added that the respondent "would
stand or fall on last year's balance sheet." Marks, however, declined
to have the negotiations based upon the respondent's 1936 financial
statement to which Page had adverted, contending that the statement
did not reflect what improvement had occurred in the respondent's
financial condition since the preparation of that statement. He
pointed out that financial ability was a matter on which reasonable
men might differ, and that for the parties to be able to bargain
collectively they should know precisely what the true facts were.19
Marks then suggested that the parties consider the various provi-
sions of the proposed draft contract, in order to discover what their
actual differences were. This occurred after considerable discussion
had ensued as to what duty the Act imposed upon employers to bar-
gain collectively. The parties considered a few of the terms in the
draft contract. McNitt stated with respect to a provision that "No
employee writing over his signature shall . . . be required to
conform to the paper's editorial policy at the expense of his personal
convictions," that "that merely reflected the present policy of the
paper." When the Guild representatives questioned the truth of
McNitt's statement, one of the respondent's representatives stated
that the provision was objectionable because it would "prohibit the
management from making assignments to particular employees."
When it was explained that the provision merely proposed to protect
editorial employees against the use of their names in connection with
the authorship of articles which did not express their views, Page
and McNitt stated that in any event the respondent must reserve to
itself its right to determine what use was to be made of any em-
10 Cf. Matter of Pioneer Pearl Button Company and Button Workers' Union, Federal
Local 200t6, 1 N. L. R . B. 837, 843.
KNOXVILLE PUBLISHING COMPANY 1229
ployee's name involving articles written by him, "regardless of
whether he agreed with it." The conference concluded with an un-
-derstanding that the parties would'meet again after the respondent's
representatives had considered further the draft contract.
On May 20 a second conference between the representatives of the
Guild and of the respondent was held. Page stated that the manage-
ment, in the interim, had given the proposed contract full considera-
tion and found it "a financial impossibility," that the respondent was
incurring large expenditures for plant and other improvements and
could not afford to operate on the terms of the proposed contract.
However, he offered no particularization of the facts concerning the
respondent's financial condition and refused to have them ascertained
through an audit or otherwise. Marks asked Page if the respondent
would make a counterproposal to the offer of the Guild as contained
in its draft contract, in order that the parties could have "some basis
on which to judge the merits . . . of the contract" proposed by
the Guild. Page refused to do this. Finally, Marks determined to
take up separately each of the provisions of the draft contract to
ascertain in that fashion which of the provisions were and which
were not objectionable to the respondent. As he proceeded to make
inquiry seriatim concerning each of the provisions, the single reply
which he elicited from the respondent's representatives was that the
respondent "could not afford to enter into the contract in whole or
in part." No counterproposals were made by the respondent's repre-
sentatives. The conference thus concluded. On the following day
the Guild wrote a letter to the respondent reviewing the events of the
two conferences, stating in effect that it was the earnest and sincere
desire of the Guild as the representative of the respondent's editorial
and reportorial employees, to meet and bargain collectively with the
respondent in regard to the terms of the employees' industrial rela-
tions, and pointing out that the attitude and conduct of the respond-
ent at the conferences had "so far prevented such collective bar-
gaining."
A third meeting of the parties followed on May 27. At this con-
ference, as well as at the succeeding conferences set forth below, the
respondent was represented by two attorneys-at-law, one McConnell
and one Harton, in addition to the managerial officials who thereto-
fore had represented it. McConnell stated as the position of the
respondent that the respondent "wanted to do everything it could
... for its employees as soon as it could but the financial con-
-dition of the paper would not permit it to do anything then." He
repeated what Page had stated at the first two conferences concern-
ing the alleged financial condition of the respondent. To the sugges-
tion that an audit be made to determine the asserted facts thereof,
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McConnell stated that the respondent would not consent thereto
"under any condition." Marks pointed out as bearing on the subject
of the respondent's financial condition that the respondent admittedly
was making substantial expenditures for plant and other improve-
ments, that it appeared from certain publicity given by the respond-
ent that both circulation of the Journal and the amount of advertis-
ing it carried had substantially increased. However, the respondent's
representatives made no counteroffers or proposals. Some time
then was spent by McConnell and Marks in discussing the meaning
of collective bargaining. Marks asked that the proposed contract be
considered in detail to determine whether or not "by a process, of
compromise and counter-proposals" an agreement between the re-
spondent and its employees could be reached. McConnell then stated
that he had had no opportunity to study the contract, and desired
time to do so. The parties accordingly decided to adjourn and made
arrangements for another meeting.
On June 1 the representatives of the Guild and of the respondent
again met. McConnell said that he had considered the proposed con-
tract and "that the provisions were such" that the respondent could
not, in view of its financial condition, execute the agreement. How-
ever, specific terms of the draft contract were discussed by the parties.
With respect to the provision for a so-called "Guild shop," 20 McCon-
nell stated that the respondent was opposed to it "in any form."?
Marks replied that in so far as the respondent's editorial and rep-
ortorial employees were concerned, the provision was not indis-
pensable to an agreement with the respondent and that he would ask
the Guild to modify the proposed contract in that respect. The
position of the respondent on the subject of the use of employees'
names in connection with articles or other writings, remained un-
changed from that which the respondent had assumed at the first
conference. McConnell stated that the respondent would not accept
the provision in question even though it was restated to make clear
that no limitation was intended upon the respondent's authority to
assign what work it wished to particular employees. He contended
that the mere existence of such a provision "could lead to abuses."
McNitt added that while the respondent in fact had followed the
practice thus provided for, and while he was sure that there would
not be any occasion for dispute in the future about its continuing the
practice, he doubted that the respondent "as a matter of prin-
ciple . . . would agree to such a rule written into a signed contract."
20 The "Guild shop " provision of the proposed contract read as follows : The manage-
ment shall be free to choose members of the editorial staff ; provided that all editorial
employees shall become members of the Guild within thirty ( 30) days after their employ-
ment, or after this contract goes into effect, whichever is later, and provided , further,
that no person once expelled from any chapter of the Guild shall be eligible for employment.
KNOXVILLE PUBLISHING COMPANY 1231
As to the provision for a workweek of 5 days, 40 hours, McConnell
said that the respondent was financially unable to put into effect such
a plan. However, after some discussion with the Guild representa-
tives, he promised that McNitt would obtain for their next meeting
data showing to what extent the performance of such a provision
would increase the respondent's operating costs. McConnell repeated,
concerning the item of wages, that the respondent was "not financially
able" to agree to a wage scale such as the proposed contract con-
templated. He then was asked, expressly, to make in behalf of the
respondent a "counter proposal . . . by way of a compromise." He
was told that it was probable that if an agreement for wages could
slot be reached at the scale provided in the proposed contract another
wage scale might be found acceptable to the parties. McConnell's
answer was that the respondent "was.going to give the best wages it
possibly could, as soon as conditions permit, and that is all [the
respondent] could do." Witnesses for the respondent testified that
the respondent's representatives then undertook to furnish informa-
tion to the Guild representatives at the next conference relating to
the amount of increase in expense which the institution of the pro-
posed wage scale would entail. While not determinative of the issues
here presented, we are convinced from all the testimony, in the light
of the foregoing facts and circumstances, that the promise of the
respondent's representatives to submit data at the succeeding con-
ference concerned only the matter of increased costs, if any, attending
the adoption of the proposed workweek, not of any cost increase
involved in an acceptance of the proposed wage scale. The position
of the respondent in regard to the proposed provisions for employee
vacations, sick leave, "severance indemnity," and the docking of em-
ployee salaries was that it was unnecessary for the parties to negotiate
as to such matters because the respondent already was complying or
substantially complying as a matter of practice with the terms
thereof.21 Although some of the members of the Guild negotiating
committee disputed this fact, McConnell insisted that it was unneces-
sary "to have it in the contract if we . . . [are] already doing it."
The final conference took place on June 25. After mentioning
that the Guild was considering omitting from the proposed contract
the provision for a "Guild shop", Marks asked whether the respond-
ent's representatives would submit the data which had been promised
.concerning the respondent's cost under the proposed workweek.
No data was offered. Instead, McConnell stated, "You know it would
be more expensive," and McNitt, after making a similar comment,
added that the respondent was planning to reduce its workweek to
21 McConnell also stated that the "severance provision" would require some modification
to cover certain contingencies.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 days, 42 hours in the fall. Marks observed that if such were
the case "perhaps [the parties] were not so far apart after all",
and offered to compromise the issue. To this, the representatives
of the respondent merely replied that the respondent would improve
the working conditions of its employees "as soon as it could and as
soon as conditions warranted." Unable, thus, to obtain any counter-
offer from the respondent as to hours, the Guild representatives
turned to a consideration of the "severance indemnity" provision.
Although, as stated above, the respondent's representatives at the
previous conference were in accord with the principle of this pro-
vision, McConnell refused to agree to it, on the ground that drafting
a satisfactory statement thereof was impossible .22 He adhered to
this position although Marks offered to have the provision rewritten.
Marks then stated that in view of the course which the respondent
had pursued throughout the negotiations the only conclusion open
to the Guild was that the respondent had never intended to bargain
collectively in good faith with it, that the respondent proposed never
to enter into an agreement with the Guild, and that this conclusion
was supported by the persistence of the respondent's anti-union acti-
vities after negotiations had commenced. McConnell said that Marks
"was just making trouble, stirring up our employees, that he was
an outsider and did not understand the conditions." As the Guild
representatives rose to depart, McConnell further asked that they
"remain and talk things over." Marks answered that the respondent
should first show that it intended to bargain collectively in good
faith and give assurance that its anti-union activities would cease.
To this McConnell replied, "Sit down and talk, we will listen to you
forever." The Guild representatives thereupon departed and no
negotiations were thereafter held by the parties. As above men-
tioned, on July 1 the respondent increased the salaries of 11 editorial
employees.23
At the hearing the respondent contended that its representatives
had available with them at the June 25 conference the data which
had been promised the Guild, that such data had not been submitted
at the meeting because the parties "didn't get around to that." The
evidence shows, however, that the meeting was of at least 1 hour's
duration and the subject of workhours had been considered early in
the conference. Irrespective of whether the respondent's representa-
tives had this data with them, it is plain, and we find, that the re-
spondent had no intention of divulging this information at that time
to the Guild representatives.
21 See footnote 21.
23 Cf. National Labor Relations Board v. American Potash and Chemical Corporation,
98 P. (2d ) 488 (C. C. A. 9) cert. den . 59 S. Ct. 582.
KNOXVILLE PUBLISHING COMPANY 1233:
The position and attitude taken by the respondent's representatives
throughout the afore-mentioned conferences with the Guild clearly
establish that the respondent never had a sincere desire to explore the
possibility of reaching an agreement with the representatives of its
employees concerning wages, hours, and other working conditions.
It was altogether unwilling to attempt in good faith a reconciliation
of differences and an agreement on terms. Its participation in the
conferences was limited to a setting aside of each and every proposal
advanced by the Guild. Even unobjectionable provisions were dis-
regarded as "unnecessary."
This is not collective bargaining as required by the Act 24 It has
been repeatedly held that Section 8 (5) imposes upon the employer
a duty to negotiate in good faith with the employees' representa-
tives.25 Mere meeting with the employees' representatives does not
fulfill the obligation under the Act if there is no sincere desire to
reach an agreement. As was recently stated : 2e
... there is a duty . . . to enter into discussion with an opert
and fair mind, and a sincere purpose to find a basis of agree-
ment touching 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
the adjustment of grievances.
The respondent at the hearing, and in its oral argument before the-
Board, contended that the Guild had not in good faith entered upon
its negotiations with the respondent, that the negotiations were un-
dertaken as part of a conspiracy between the Guild, the Tennessee-
Valley Authority, and the Knoxville News-Sentinel for the purpose-
of causing a strike at the respondent's place of business and destroy-
ing the respondent. The respondent alleges that the Authority was
hostile to it because of an unfavorable editorial policy concerning-
the Authority pursued in the Journal, that the Knoxville News-
Sentinel was hostile because it was a competitor, and that these two
had, through the Guild, made use of the desires of the respondent's
employees to advance their own ulterior purposes. It is difficult to-
believe, upon the record before us, that the respondent is in earnest
in its contention. The record establishes no such conspiracy, let
alone the asserted complicity of the Authority or the Knoxville News-
Sentinel therein. The record shows that following the June 25 con-
24 Globe Cotton Mills v National Labor Relations Board, 103 F . ( 2d) 91 (C C. A. 5) ;
National Labor Relations Boatd v. Biles-Coleman Lumber Company, 98 F (2d) 18 (C. C. A.
9) ; Matter of S. L. Allen & Company, Inc., a Corporation and Federal Labor Union Local
No. 18526, 1 N. L. R. B. 714, order enforced (C. C. A. 3) C. C. H. Labor Law Service.
par 18989.
25 See cases cited in footnote 24.
0 Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5).
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference a union composed of employees of the Authority engaged in
certain activities, among other things, in giving publicity to the re-
fusal of the respondent to bargain collectively with the Guild. There
is no proof that these activities were at the instance of the Authority.
Nor were these activities themselves demonstrated to be unlawful.
We find the contention of the respondent to be wholly without merit.
We find that the respondent on May 15, 1937, and at all times
since, refused to bargain collectively with the. Guild as the repre-
sentative of its employees in regard to rates of pay, wages, hours of
employment, and other conditions of employment, and thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed by 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 respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It is essential in order to effectuate the purposes and policies of the
Act that the respondent be ordered to cease and desist from certain
activities and practices in which we have found it to have engaged,
and in aid of such order and as a means for removing and avoiding
the consequences of such activities and practices , that the respondent
be directed to take certain affirmative action, more particularly
described below.
We have found that the respondent discharged Harry Human,27
Lucia Brown, and Lola Hubbell because of their affiliation with
and/or their activities in behalf of a labor organization . Accord-
ingly, we shall order the respondent to offer each of these employees
immediate and full reinstatement to his or her former position with
the respondent , or if such position be abolished , then to a substan-
tially equivalent position , without prejudice to their seniority and
other rights and privileges; and to make said employees whole for
any loss of pay they have suffered by reason of the respondent's
illegal acts against them by payment to each of them of a sum of
money equal to the amount which he or she normally would have
earned as wages from the date of his or her discharge to the date of
'In Human 's case the position referred to is copy reader at the copy desk , in which
Hart was subsequently employed.
KNOXVILLE PUBLISHING COMPANY 1235
the offer of reinstatement, less his or her net earnings 28 during said
period.
We shall also order the respondent to bargain collectively with
the Guild as the representative of all the respondent's employees who
devote all or a substantial portion of their time in editorial or rep-
ortorial work, excluding clerical and supervisory employees, and to
take certain other action more particularly set forth in the Order.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The Knoxville Newspaper Guild is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to hire and tenure of employment
of Harry Human, Lucia Brown, and Lola Hubbell thereby discourag-
ing membership in The Knoxville Newspaper Guild, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. All of the respondent's employees who devote all or a substantial
portion of their time in editorial or reportorial work, excluding cler-
ical and supervisory employees, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
4. The Knoxville Newspaper Guild was on May 8, 1937, and at all
times thereafter has been, the exclusive representative of all employ-
ees in such unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with The Knoxville News-
paper 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.
6. 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.
21 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Hatter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B' 440 Monies
received for work performed upon Federal , State, county , municipal, or other work-relief
projects aie 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.
169134-39-vol. 12--79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
8. By discharging Kenneth Harrison the respondent did not dis-
criminate in regard to hire and tenure of employment of said em-
ployee, or in regard to any term or condition of his employment,
within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that Knoxville Pub-
lishing Company, Knoxville, Tennessee, and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in The Knoxville Newspaper Guild
or any other organization of its employees by discriminating in re-
gard to hire or tenure of employment or any term or condition of
employment;
(b) Refusing to bargain collectively with The Knoxville News-
paper Guild, as the exclusive representative of all the respondent's
employees who devote all or a substantial portion of their time to
editorial or reportorial work, excluding clerical and supervisory
employees ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purposes of collective bargaining 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 Harry Human, Lucia Brown, and Lola Hubbell, and
each of them immediate and full reinstatement to their respective
former positions, or if such positions are abolished, then to substan-
tially equivalent positions, without prejudice to their seniority and
other rights and privileges; and make them whole for any loss of pay
they have suffered by reason of their respective discharges by the re-
spondent by payment to each of them a sum of money equal to the
amount each would normally have earned as wages from the date of
his or her discharge to the date of the offer of reinstatement, less his
or her net earnings during that period, deducting, however, from the
amount otherwise due to each of such employees, monies received by
KNOXVILLE PUBLISHING COMPANY 1237
him during said periods for work performed upon Federal, State,
county, municipal, or other work-relief projects; and pay over the
amounts, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(b) Upon request bargain collectively with The Knoxville News-
paper Guild, as the exclusive representative of all the respondent's
employees who devote all or a substantial portion of their time to
editorial or reportorial work, excluding clerical and supervisory em-
ployees, in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(c) Post immediately in conspicuous places throughout its plant
where it publishes The Knoxville Journal, and maintain for a period
of at least thirty (30) consecutive days, notices to its employees stating
that the respondent will cease and desist in the manner set forth in
1 (a), (b), and (c), and that it will take the affirmative action set
forth in 2 (a) and (b), of this Order;
(d) Notify the Regional Director of the Tenth Region within ten
(10) days from the date of this Order what steps the respondent has
taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has discriminated in regard to the hire and tenure
of employment of Kenneth Harrison, be, and it hereby is, dismissed.