Newark Morning Ledger Co.

National Labor Relations Board - Board Decisions

Mar 23, 1940

21 N.L.R.B. 988 (N.L.R.B. 1940)

In the Matter of NEWARK MORNING ' LEDGER COMPANY and AMERICAN
NEWSPAPER GUILD
Case No. C-1033.-Decided March 23, 194+0
Newspaper Publishing Inadusttil-Discriniinnatioa• discharge for union leader-
ship and activity; (Leiserson dissents) complaint should not have issued In-
itially in view of collective bargaining agreement between employer and union,
and while discharge involved occurred after signing of contract it grew out of
internal differences in union antedating contract-Retnstatenrent Ordered-Back
Pay: awarded-Evidence: background : conduct otherwise constituting unfair
labor practices but not alleged in complaint, properly ruled admissible by Trial
Examiner as "background" to discriminatory discharge; ( Leiserson dissents)
acts otherwise constituting unfair labor practices but unsupported by allegations
of complaint should not be considered as background in decision where acts
occurred prior to date when collective bargaining agreement between union and
employer was signed
Mr. Daniel Baker, for the Board.
Mr. Charles Goldman, Mr. Burton Pike, and Mr. Sidney Cutler, of
New York City, for the respondent.
Isserman, Isserman, & Kapelsohin, by Mr. Abraham J. Isserman, of
Newark, N. J., for the Guild.
Mr. Harry Brownstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by American Newspaper Guild, herein called
the Guild,' the National Labor Relations Board, herein called the
Board, by the Regional Director for the Second Region (New York
City), issued a complaint, dated March 17, 1938, against Newark
Morning Ledger Company, Newark, New Jersey, 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.
IAmerican Newspaper Guild, Newark Newspaper Guild, and the Ledger Unit thereof are
at times hereinafter collectively referred to as the Guild. See Section II, infra.
21 N. L. R. B , No. 95.
988
NEWARK MORNING LEDGER COMPANY 989,
A copy of the complaint accompanied by notice of hearing thereon
was duly served upon the respondent and upon the Guild.
With respect to the unfair labor practices the complaint alleged in
substance that the respondent discharged and refused to reinstate
Agnes Fahy, an employee of the respondent, because she joined and
assisted the Newark Newspaper Guild, a local of the Guild herein
called either the Guild Local or the Local, and participated in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection, thereby discriminating in regard to the
hire and tenure of employment of said employee within the meaning
of Section 8 (3) of the Act, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7. The complaint further set forth in paragraph 6 thereof, and
in related allegations of paragraphs 8 and 9, that the respondent urged,
persuaded, and warned its employees from and after July 1937 to re-
frain from becoming or remaining members of the Guild Local, and
kept raider surveillance the meetings and meeting places of members
of said labor organization in its employ, thereby and by other acts,
interfering with, restraining, and coercing its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act. On March 31,
1938, the respondent filed its answer admitting that it discharged
Fahy, but denying generally that it had engaged in any of the unfair
labor practices alleged in the complaint. The answer averred as a
separate defense that the charge upon which the complaint issued was
insufficient for failure to state facts as required by the Act and by
National Labor Relations Board Rules and Regulations-Series 1, as
amended, herein called the Rules and Regulations, and, therefore, thq
complaint was insufficient. Prior thereto, on March 21, 1938, the re-
spondent made request of the Regional Director for a copy of a certain
affidavit of Fahy, the employee mentioned in the complaint, which
affidavit had been referred to in the charge, and also made application
for a bill of particulars with respect to the allegations of the complaint.
The affidavit in question was incorporated by reference into the charge,
and set forth in detail various facts relating to the unfair labor prac-
tices charged. On April 16, 1938, a copy of the affidavit was furnished
the respondent. On July 15, 1938, the respondent was informed by the
Regional Director that if it wished to urge its application for a bill
of particulars, it should do so before the Trial Examiner at the hear-
ing mentioned below.
Pursuant to notice a hearing was held at Newark, New Jersey, from
July 22 to September 2, 1938, both inclusive, before Waldo C. Holden,
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 introduce evidence bearing upon the
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues was afforded all parties. At the beginning of the hearing the
respondent moved that the proceedings be dismissed, for want of a
sufficient charge and complaint, as set forth in its answer, and also
moved that the hearing be continued. It based these motions pri-
marily upon its failure to, receive the bill of particulars previously
requested, which it further moved be granted to it. Counsel for the
Board stated for the record that the respondent had been furnished
the affidavit of Fahy setting forth "all the facts . . . that . . . [the
respondent] could possibly have achieved or gained by virtue of a
bill of particulars." 2 The Trial Examiner granted a continuance of
the hearing until July 25, 1938, and otherwise denied these motions.
We hereby affirm these rulings of the Trial Examiners The respond-
ent further moved that the Trial Examiner be disqualified from con-
ducting the hearing and that the Board or a specially designated Trial
Examiner hear the case in his stead, on the ground that Fahy, the
employee involved, is a sister of the general counsel to the Board.
The Trial Examiner denied this motion. We think the Trial Exam-
iner properly ruled in effect that the proceedings herein should be
conducted in accordance With the Rules and Regulations. At the
close of the Board's proof the Trial Examiner granted a motion by the
respondent to strike all allegations of the complaint, particularly
those of paragraphs 6, 8, and 9 in so far as they related to unfair
labor practices, within the meaning of Section 8 (1) of the Act, other
than the allegedly discriminatory discharge of Fahy. He denied a
motion of the respondent to strike from the record, for want of alle-
gation in the complaint, all evidence adduced with respect to acts and
conduct of the respondent through its officers and agents occurring
prior to July 1937 which might be held to constitute unfair labor
practices under the Act, and ruled that such evidence properly was
admissible as background in the case. He denied other motions of
the respondent to strike other paragraphs of the complaint and to
dismiss the complaint. At the close of the hearing counsel for the
Board moved that the pleadings be conformed to the proof in regard
to names, dates, and similar matters. This motion was granted.
During the hearing the Trial Examiner refused to admit to the record
certain documentary proof offered in evidence by the respondent as
2 In arguing the respondent's motion for a bill of particulars and for a continuance
counsel for the respondent indicated that if Board's counsel would "state for the record
that . . [the affidavit of Fahy] represents the confines of this case," the respondent
would not press these motions Counsel also said that he would be satisfied if the
information which he requested in the bill of particulars were given the respondent
"either in the form of a charge, complaint, or bill of paiticulais." We are of the opinion
that the charge and incorporated affidavit of Fahy and the complaint, gave the respondent
ample notice of the unfair labor practices of which it stood charged. Moreover, there is
no showing wherein the respondent was prejudiced by the rulings of the Trial Examiner
3 See Hatter of National Supply Company and Steel Workers Organizing Committee, 16
N. L R. B 304 Moreover, the charge incorporated by reference Fahy's affidavit, here-
tofore mentioned
NEWARK MORNING LEDGER COMPANY 991
Respondent's Exhibits for identification 13, 39, 72, 74, and 77, and
certain oral testimony by a witness, one Winn; whom the respond-
ent called, as well as a certain document offered by counsel for the
Board at the hearing as Board's Exhibit 55 for identification. On
March 8, 1940, notice was given to the parties that the Board would
admit to the record and consider in evidence the aforesaid exhibits,
unless cause to the contrary should appear. The parties were given
leave until March 15, 1940, to file written objections and written argu-
ment in support thereof to the admission of said exhibits. On March
14, 1940, the Guild filed written objections to the admission to record
of the above-mentioned exhibits offered by the respondent, together
with w`writteii argument in support thereof. We have considered
these objections and hereby overrule them. We hereby admit Re-
spondent's Exhibits for identification 13, 39, 72, 74, and 77, and
Board's Exhibit, 55 for identification to the record and shall consider
them as admitted to the record and in evidence. Also, the testimony
of the witness Winn which was proffered but rejected will be treated
and considered as testimony admitted in accordance with the offer.
During the course of the hearing the Trial Examiner made other
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. These rulings are hereby
affirmed.
On September 6, 1938, pursuant to agreement of the parties at the
hearing, a deposition was taken of one Newhouse, a witness for the
respondent. The Board and the respondent were represented by coun-
sel and participated in the taking of the deposition. The deposition
has been made a part of the record herein.
On November 10, 1938, the Trial Examiner filed his Intermediate
Report, a copy of which was duly served on all parties, in which he
found that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act; and recommended that the respond-
ent cease and desist from such practices, and that it take certain affirm-
ative action including the reinstatement of Fahy with back pay, in
order to remedy the situation brought about by the unfair labor prac-
tices which he found. On December 22, 1938, the respondent filed
exceptions to the Intermediate Report and to the record, and requested
oral argument thereon before the Board.
On November 16, 1939, pursuant to notice a hearing was held before
the Board in Washington, D. C., for the purpose of oral argument.
The Guild and the respondent were represented by counsel, presented
oral argument to the Board, and otherwise participated in the hearing
At the hearing the respondent moved that the record be set aside and
a new hearing had upon the complaint and answer. This motion is
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby denied. The respondent and the Guild have submitted briefs
in support of their respective positions.
The Board has considered the exceptions to the Intermediate Report
and to the record and, in so far as they are inconsistent with the find-
ings, conclusions, and order set forth below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Newark Morning Ledger Company, is a New Jersey
corporation, having its principal office and place of business in Newark,
New Jersey. It is engaged in the publication, sale, and distribution
of a daily morning newspaper known as the Newark Ledger, herein
called the Ledger. It employs about 160 employees. During 1937
the total average weekday circulation of the Ledger was 52,251 copies,
and the total average Sunday circulation was 56,392 copies. Of this,
an average of 105 copies each day of the week, or 38,325 copies for the
year, were sent from the plant to points outside of the State of New
Jersey. The weight of copies of the Ledger sent outside the State of
New Jersey through the United States mail amounted to not less than
10,731 pounds in 1937.4
For the year ending April 30, 1937, the respondent purchased and
caused to be shipped to its plant from the Dominion of Canada about
3,000 tons of newsprint costing $147,612.
The respondent receives the international news services of United
Press and Associated Press. The news so furnished to the respondent
is obtained by these agencies from sources throughout the world, and
is daily transmitted by wire from New York City directly and through
branches to the respondent's plant in Newark. About 20 per cent of
the news which the respondent regularly prints in the Ledger is re-
ceived by it through these services. The respondent also daily fur-
nishes news to the Associated Press, of which the respondent is a
member, which in turn distributes by wire such portion of this news
as it desires to recipients in various parts of the United States. The
respondent further utilizes the services of General Press Association,
a news agency located in Washington, D. C., for obtaining news reports
of events in the Capital having particular interest to New Jersey resi-
dents. These reports are transmitted from Washington to the re-
spondent by means of telephone, telegraph, and the United States mail.
The respondent, in addition to the foregoing, subscribes to and
regularly receives at its plant, news, features, photographs, and
* This is derived from Board Exhibit 3.
NEWARK MORNING LEDGER COMPANY 993
related material which are sent to it by special messenger, express,
and the United States mail from agencies rendering news features and
photographic services located in Washington, D. C., New York, Penn-
sylvania, Illinois, Iowa, and Ohio. Comic-strip supplements to the
Sunday edition of the Ledger are obtained in printed form from
Pennsylvania, whence they are regularly shipped directly to the
plant in Newark.
Seven or eight per cent of the total amount of space devoted in the
Ledger to advertising is so-called national advertising, that is, ad-
vertising placed with the respondent by advertisers located outside the
State of New Jersey. For the year ending April 30, 1937, the Ledger
printed 21,755 inches of national advertising. For the year ending
April 30, 1938, the total income derived from such advertising was
$22,565. The respondent and two other newspaper-publishing com-
panies in which the respondent's publisher has a controlling stock
interest, jointly operate a business agency in New York City for the,
solicitation of national advertising to be placed in their respective
publications. The advertising so obtained by this agency for the
Ledger is regularly transmitted to the respondent from New York
City over special telephone line and by messenger.
H. THE ORGANIZATION INVOLVED
American Newspaper Guild is a labor organization admitting to
membership persons employed in newspaper work in an editorial or
reportorial capacity. Newark Newspaper Guild is a local of Amer-
ican Newspaper Guild composed of members of the Guild employed
in Essex County, New Jersey. The Guild Local is divided into a
number of "units," each consisting of members employed by a par-
ticular newspaper publisher or news-service agency. The unit of the
Guild Local comprising employees of the respondent is herein called
the Ledger Unit or the Unit. American Newspaper Guild, Newark
Ne',%vspAper Guild, and the Ledger Unit thereof are at times herein-
after collectively referred to as the Guild.
Each unit of a local of the Guild has its own presiding officers and
elects representatives to an executive committee of the local. The
purpose of the unit is to afford its constituent members an organiza-
tional means for expressing their collective views and instructions to
the executive committee of the local and to the local. No independent
action can be taken by the unit without the approval of the executive
committee of the local. The executive committee of the local is the
governing body of the local and consists of the representatives elected
by the constituent units of the local and of the officers of the local.
The officers are elected by the membership at large of the local. Col-
lective bargaining or other action in behalf of the employees of a
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular newspaper publisher or news-service agency is not per-
formed by the respective unit but by the local of winch the milt is a
part, acting through the executive committee of the local. However,
action by the local executive committee iii behalf of the unit is subject
to direction of the unit and to ratification by the unit before becoming
final. Thus the Guild Local acting through the local executive com-
mittee has sole authority to act as collective bargaining representative
for members of the Ledger Unit, but action of the Guild Local in this
respect is subject to direction and approval of the Unit.
III. THE UNFAIR LABOR PRACTICES
A. Background
In the latter part of 1933 the Guild Local was established as a
labor organization comprising and admitting to membership editorial
employees 5 of the respondent and of three other newspaper publishers
at Newark. The Ledger Unit was formed at the same time. In May
1935 one Newhouse acquired a controlling stock interest, in the
respondent corporation and became publisher of the Ledger. In June
1935 the Guild Local, at the direction of the Ledger Unit and acting
through a negotiations comnlittee, instituted negotiations with the
respondent for a collective contract covernig wages, hours of service,
and other working conditions of the respondent's editorial employees.
As above stated; finder the constitution of the Guild sole authority to
bargain collectively in behalf of these employees was vested in the
Local, although the Local had no power to bind the Unit or members
thereof to a collective agreement without the Unit's consent. Upon
the request of the respondent, negotiations were postponed until
October 1935.
About the time in June that negotiations were initiated the man-
aging, editor of the respondent, one Hochstein, had a conversation
concerning the Guild with one of the editorial employees who was a
leading member of the Ledger Unit.° This appears to be the first
As used herein the expression "editorial employees" refers to persons engaged in
reportorial and editorial work.
6 At the hearing, the respondent moved, as above mentioned , to strike from the record,
for want of allegation in the complaint, evidence adduced regarding acts and conduct of
the respondent during this period and subsequently which might be held to constitute
unfair labor practices under the Act, except the respondent s discharge of Fahy The
Trial Examiner ruled that this evidence properly was admissible as "background" to the
discharge and we have affirmed this ruling Although no determination or finding is
'made herein that such acts or conduct constitute unfair labor practices , nor is any order
issued- herein predicated upon such determination or finding , nevertheless , these acts and
conduct are considered herein to the extent to which they are material as circumstances
explaining and bearing upon the discharge of Fahy. In International Association of
Machinists, Tool and Die Makers Lodge No. 35, affiliated with the International Association
of Machinists, and Production Lodge No. 1200 , affiliated with the International Association
of Machinists v. N. L. R. B., 110 F (2d) 29 (C. A. D C.), enf'g Matter of The Serrick
1 orporation and International Union, United Automobile Workers of America, Local
NEWARK MORNING LEDGER COMPANY 995
occasion, so far as the record shows, that Hochstein expressed himself
on the subject of the respondent's employees joining the Guild. In
that conversation he questioned the competency of a trade-union form
of organization such as the Guild to represent editorial employees
saying, "It would be a difficult matter to apply the strict measure-
ments in newspaper work that are applied to crafts and trades." In
September 1935 and thereafter throughout the period in which the
Guild Local sought to obtain and conclude a collective agreement
with the respondent, as mentioned below, Hochstein made it a prac-
tice to speak from time to time with individual editorial employees
about the Guild, membership in it, and its leadership. He told em-
ployees that the Guild was an "unstable and radical organization"
which "could not succeed"; that "it had no place in the newspaper
business because of the relationship of editor and reporter"; and
that it would not "last for 2 years." With respect to membership in
the Guild, lie remarked to one employee that he, the employee, was
a "bright young fellow" with a "future," and advised him not to
become "mixed up" with the Guild. He told another employee to
"forget" the Guild, another that he was "holding himself back" as a
reporter by being a member of it. To one other employee Hoclistein
suggested that while it might not be "wise" for the employee to with-
draw from affiliation with the Guild the employee would enjoy a
"good standing" with Publisher Newhouse if lie remained inactive
in its affairs, became a "silent member without participating in the
Guild activities." In these conversations Hoclistein singled out for
personal characterization various leaders of the Guild, its president,
the president of the Guild Local, members of the local executive com-
mittee and members of the negotiations committee. He alluded to
them as "radicals," "troublemakers," "racketeer influence," and as
having "personal axes to grind." At the hearing Hochstein denied
having made these statements. However, in view, on the one hand,
of the consistency and forthrightness of the testimony of the numer-
ous witnesses who testified to the making of these statements by
Hochstein and, on the other, of the vagueness and uncertainty of
Hochstein's own testimony in important particulars, as well as the
opinion of the Guild which he admittedly entertained, we are unable
No 459, 8 N L. R B. 621, the Circuit Court of Appeals said ( see footnote 14 of court
,opinion) • '
The Board , consistently and with judicial approval , has considered "background"
evidence in unfair practice cases , particularly when , as here, it discloses a prior
hostile attitude of the employer Pennsylvania Greyhound Lines, Inc, 1 N L R B
1, 23 (1935), aff d, 303 U S 261 (1938) ; Wheeling Steel Corp, 1 N. L R. B 699,
709 (1936), enforced, 94 F (2d) (1021) (C C A 6th, 1938) , National Motor Bearing
Co v N. L. B B, 105 F. (2d) 652 (C C A. 9th, 1939) ; Hamilton -Brown Shoe Co.
-v N L B B , 104 F (2d) 49. 52 (C C A. SO, 1939) Subsequent occurrences
similarly have been taken into account National Motor Bearing Co . '. N L. R B.,
supra [105F (2db 6i2 (C C A 9) ]
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to give credence to his denial. We agree with the findings of the
Trial Examiner in his Intermediate Report that Hochstein made these
statements. We also are satisfied and find that the respondent,
through Rothstein, by thus derogating the labor organization through
which its employees were then engaged in collective bargaining, by
suggesting to employees that success in their work was not related to
their joining or being active in that union, and by defaming the
union leaders, intended that its employees refrain from supporting
or withdraw support from that union and sought to raise a doubt in
their minds as to the trustworthiness of these leaders. We think it
immaterial from the viewpoint of the relevance of this conduct to a
determination of the issues involved that newspaper publishers gen-
erally, as the respondent contends, then engaged in similar conduct.
On October 1, 1935, the Guild Local resumed negotiations with
the respondent for a collective contract to deal with wages and other
working conditions of the respondent's editorial employees. At that
time a majority of these employees were members of the Guild and
had designated the Guild Local their exclusive collective bargaining
representative. Under Section 9 (a) of the Act the Local was the statu-
tory representative of all the respondent's editorial employees.', Con-
ferences between the parties extended through October, November,
and December, 1935. In December all the terms of the proposed
contract except one relating to recognition of the Guild Local as
bargaining representative were tentatively agreed upon.' The Local
T The Guild Local and accordingly the Ledger Unit admitted and admit to membership
all editorial employees of the respondent , excluding executives . We have found that
employees within such classifications constitute an appropriate collective baigaining unit
under Section 9 (a) of the Act See Matter of lllilicaulee Publishing Company and
Milwaul ee Newspaper Guild (C. 1 0 ), 10 N L R B 381), Hattei of II'eelly Publicattion',
Inc and Newspaper Guild of New York, 8 N L R B 76: Ct Matter of Boston Daily
Record ( New England Newspaper Publishing Co ) and Newspaper Guild of Boston ( Ameri-
can Newspaper Guild ), et at , 9 N L R B 25 ; Matter of Cleveland Company, Publishes
of the Cleveland News and Cleveland Newspaper Guild, Local Z (C 1 0 ) 19 N L R B ,
435; N L. R B 798 On November 13, 1935, 36 of the respondent 's 51 editorial employees
excluding executives , were members of the Guild, and thereby had designated the'-Local
their exclusive bargaining agency . We find that all persons employed by the respondent
as editorial employees , excluding executives , constituted on November 13, 1935, and
thereafter , a unit appropriate for the purposes of collective bargaining , and that such
unit assured to these employees the full benefit of their right to self -organization and
to collective bargaining and otherwise effectuated the policies of the Act. Hence, the
Guild Local was on November 13, 1935, and thereafter , the exclusive bargaining agent
of all employees within such unit See N L. R B v. Piqua Munising Wood Products Co,
109 F ( 2d) 552 (C C. A 6), enf'g Matter of Piqua Munising Wood Products Company and
Federal Labor Union Local 18787, 7 N L It B 782 , N L R B v Iighland Park Manu-
facturing Company, 110 F ( 2d) 632 (C C A 4). enf'g Matter of Highland Park Manufac-
turing Co and Textile Workers Organizing Committee, 12 N. L. R. B. 1238; N L. R B v
National Motor Bearing Company, 105 F (2d) 652 (C. C A. 9), enf'g as mod Matter
of National Motor Bearing Company and International Union , United Automobile Workers
of Anteiica, Local No 7 a N L R. B. 409
8 The agreement as tentatively reached was for a period of 1 year . It provided that
wages of the editorial employees would not be reduced or woiking houis increased; that
employees would receive vacations with pay, that no editorial employee would be dis-
charged except for "gross " incompetency , "flagrant" violation of professional ethics, or
NEWARK MORNING LEDGER COMPANY 997
proposed that the contract expressly contain an undertaking by the
respondent recognizing the Local as the sole collective bargaining
representative of its employees who were members of the Guild.
The respondent refused to agree to this, and stated that recognition
of the Local should merely appear as a recital in the preamble of
the contract.' The respondent offered by way of a counterproposal
to have the proposed provision included as a term of the contract if
the contract also provided that such provision should "not be con-
strued to imply that either party [the respondent or the Guild Local]
has the right to bargain or negotiate further during the term of this
agreement, but if there shall be any bargaining, the publisher shall
conduct the same with no person or agency other than the Guild
[Local]." The Local refused to acquiesce in this and reported the
controversy to the Ledger Unit. Thereafter the Unit approved the
respondent's counterproposal and communicated its approval to the
Local. However, the Local considered it unwise to proceed with
negotiations on that basis. In a letter to the Unit on December 20
it stated :
The clause which Mr. Charles Goldman [the respondent's
attorney during negotiations] proposed to insert in a contract,
qualifying the recognition clause, and which your resolution
favors inserting therein, is not consonant with Guild policy,
because it would not grant unqualified recognition. The Com-
mittee holds that nothing short of unqualified recognition is
satisfactory.
The Guild cannot bind itself under a contract not to call upon
the management of the Ledger, in case the interests of a member
or members employed by the Ledger should at some time in the
future make such a call necessary ...
The Executive Committee [of the Local] has decided to sus-
pend contract negotiations with the Newark Morning Ledger
"extreme " insubordination ; that editorial employees discharged would be paid a dismissal
indemnity"; that the respondent would interpose no objection to its editorial employees
being members of the Guild and would not influence them against it ; and that the re-
spondent would not enter into an individual contract of employment with any of its
editorial employees
9In its brief to the Board the respondent adverts to a conference between Publisher
Newhouse and its counsel regarding the inclusion of the provision for recognition of the
Local in the proposed contract, as follows
Accordingly, Mr Goldman [the respondent' s counsel ] consulted lir Newhouse with
regard to the draft Mr Newhouse expressed some hesitancy concerning the Guild
recognition clause with respect to whether , under the recognition clause , the Guild
could attempt to conduct further negotiations after the contract was signed. Re-
spondent's counsel then made the suggestion that the recognition clause be taken
from the body of the agreement and instead be placed in the preamble among the
recitations To this Air Newhouse assented . . To meet this situation. Goldman.
after several telephone talks with \Ir, Newhouse, expressed his willingness to have
the recognition clause placed in the body of the agreement if it were modified in
such way as to clearly indicate that neither party would bargain or negotiate further
during the terns of the agreement
283032-41-vol 21-64
'998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until such time as the Ledger unit decides to insist upon terns
which will not violate Guild principles . . .1e
Five days later Publisher Newhouse, in a speech at a staff meeting
of the respondent's editorial employees, discussed the Guild Local
and the respondent's negotiations with it. The record shows, and
we find, that during the period of negotiations as well as thereafter
the respondent at all times was fully cognizant of affairs and hap-
penings within the Ledger Unit and of the business of the Guild
Local relating to its editorial employees." Newhouse stated that for
3 months he had "been endeavoring to reach an agreement with the
negotiations committee [of the Local] to stabilize conditions"; that
when negotiations began he had been "optimistic for a speedy and
happy result" and had been assured by officials of the Guild that
their organization "was solely concerned with improving the economic
status and assuring the economic security of its members"; that
negotiations had been suspended "not because of any difference be-
tween us as to economic status or economic security of the Guild
inenibers," but "the belief or opinion of the Guild officials that the
contract as drawn does not embrace aclniowledgnlent by the Ledger
that the Guild is the sole bargaining agency for its members"; and that
4'any thought ... that under the contract as drawn the management
will decline to meet with representatives of the Guild ... is either
feigned or unfounded." 12 Newhouse then declared that lie would
confirm "in the presence of the entire staff" the Guild's status as
collective bargaining agency of its members. He continued, "Since
October 1 we have been negotiating, yet we are apart on an issue
that does not relate in any way to the economic advancement or
economic security of the staff. Since so much time has elapsed
without progress in the final stages of the negotiations, I do not
10 See footnote 13, infra
none Mogelever, then a member of the Guild and the respondent's cite editor, tiatet-
niced with his superior, Managing Editor Hochstein, and regularly consulted with him
about matters - relating to the editorial staff Mogelevei himself occupied a supervisory
position on the staff. He assigned work to the editoiial emplovees , often determined
their working hours, and otherwise supervised their work Ile had authority to recom-
mend persons for employment with the respondent , and was consulted on matters of
discharge Mogelever testified that in his conversations with Iiochstem lie mentioned
matters relating to the Guild Other of the respondent 's editorial employees also dis-
cussed such matters with Hochstein The evidence establishes that meetings of the Unit
were generally open and without any effort at secrecy The respondent concededly knew
of the prevailing "schools of thought" within the Unit with reference to the substantive
provisions of the proposed contract . Publications of the Guild regularly were brought
to the respondent ' s attention Hochstein admitted at the hearing that it "seemed to
have been" the practice of "someone" to place on his desk The Gnald Reportci, the official
publication of the Guild containing news of its locals, and "occasionally notices relating
to Guild business " Newhouse and the respondent 's attorney , Goldman , both of whom
participated in the negotiations , were also familiar with The Guild Reporter Hochsteni
testified that he read the publication "whenevei Mr Goldman or Mi Newhouse would
call my attention to something in it "
12 See footnote 9, 8 epia
NEWARK MORNING LEDGER COMPANY 999
wish the staff to suffer from any uncertainty as to the question of
economic security or Guild recognition." Newhouse then stated that
the respondent would "guarantee" to the employees that for a period
of 1 year it would abide by all the terms of the proposed contract
on which the Guild and the respondent had tentatively agreed when
negotiations were suspended. Among the "guarantees" was one pro-
viding that the respondent would make no "individual contracts"
of employment with employee members of the Guild or with non-
member employees of its editorial staff whoin the Guild would admit
to membership; another that it would interpose no objection to mem-
bership in the Guild by any present or future employee in the edi-
torial department, and would in no wise influence any present or
future employee to refrain from Guild membership; and another
that the respondent would discharge no editorial employee for any
reason except "gross" incompetency. "flagrant" violation of profes-
sional 'ethics, or "extreme" insubordination. The guarantees, New-
house declared, would "hold good" whether or not a contract was
consummated with the Guild Local; that "the point" lie wished "to
emphasize is that your minds may be at rest; that from now until
January 1, 1937, you may stand on all the guarantees . . ." He con-
cluded with a statement that at no time had the respondent had "the
slightest reluctance" of entering into a contract with the Guild Local.
On December 27 the Ledger Unit adopted a resolution, a copy of
which was sent to the executive committee of the Local, stating that
in view of the assurances made in Newhouse's speech the Unit
desired that all negotiations iii its behalf by the Local with the
respondent be suspended for 1 year until January 1, 1937. There-
after, throughout 1936, no negotiations for a collective contract
were had by the Local with the respondent.
We entertain no doubt that the respondent during the negotiations
in December with the Guild Local sought to obtain for and reserve
in itself for the period of the proposed contract, once that contract
was signed. an immunity against treating with the Local as collective
bargaining representative unless the respondent in its sole discretion
was willing to do so.13 This proposal if accepted and adhered to
necessarily would have subjected the Local to the risk of serious
impairment if not destruction of itself as an effective agency for
"In N L. R. B i National Licorice Company, 104 F. (2d) 655 (C C. A. 2), enf'g
as mod Mattel of National Licorice Company and Ba/ery and Confectionery Workers
International Union of America , Local Union 105, Greater New Yoik and Vicinity, 7
N L It B 537, at1'd as mod National Licorice Company v. N L R B, 303 U S 350, the
Circuit Couit of Appeals held unlawful under the Act a provision of an employment con-
tract whereby employees bound themselves to their employer not to propose any changes in
the terms of the contract for the period of the agreement The court stated
A party to a contract does not break it, when he proposes to the other party that
conditions have so far changed as to make desirable a change of the contract. There
is nothing uulawtul in that so long as it is not a masque for threatening to violate
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective action of the respondent's employees. While Newhouse in
his speech characterized the understanding of the Guild Local re-
garding the respondent's counterproposal as "feigned and un-
founded" it is significant that the respondent did not communicate,
directly with the representatives of its employees to remove the
alleged misunderstanding and permit the proposed contract to be
consummated. Instead, it ignored the collective bargaining repre-
sentative and through Newhouse utilized the occasion of suspended
negotiations pending settlement by the Local and the Unit of the
internal dispute over union policy, to deal directly with the employee
members of the Guild and other employees in respect to the very
subject matter of the negotiations. Such action plainly was de-
signed to "undercut" the authority of the bargaining representative
to act for the employees and to strike a blow at its prestige and
services.14 The technique of treating directly with employees who
have designated a union to represent them and, here, to do so on a
basis of noncontractual "guaranties," is a contradiction of any pro-
fessed willingness of the employer to recognize and make a collective
agreement with the union.
In the spring of 1936 one of the respondent's editorial employees
who was a member of the local executive committee requested of
Hochstein a raise in salary. In the course of conversation the em-
ployee remarked that he thought it was a "cruel and vicious" prac-
the existing contract . Perhaps in labor disputes it ordinarily 'N111 be, but the iuiht
to propose the change is secured by statute as part of the i fight to negotiate (Italics
added
In N. L . R B v The Sands Manufacturing Conipany, 306 U S 332, the Supreme Court
said
The legislative history of the Act goes far to indicate that the purpose of the stat-
ute was to compel employers to bargain collectively with their employees to the end
that employment contracts binding on both parties should be made But we assume
that the Act imposes on the employer the further obligation to meet and bargain
with his employes ' representatives respecting proposed changes of an existing con-
tract and also to discuss with them its true interpretation , if there is any doubt
as to its meaning.
See also N . L R. B v American Manufacturing Conipany and Nu-Art Employees, Inc.
106 F ( 2d) 61 (C. C. A. 2), enf'g Matter of American Manufacturing Company ; Company
Union of the American Manufacturing Company , The Collectii,e Bargaining Committee of
the Brooklyn Plant of The American Manufacturing Company and Textile Workers' Organ-
izing Committee , C. 1. 0., 5 N I. It B. 443, aff'd as mod 309 U S. 629.
14 In Matter of National Labor Relations Board v Remington Rand, Inc , 94 F (2d) 862
(C C A 2), enf'g Matter of Remington Rand, Inc and Remington Rand Joint Pro-
tective Board of the District Council Office Equipment Workers, 2 N. L R B 626, the
court stated of analogous action by the employer :
It is plain , we tbinlc, that after an exclusive bargaining unit has taken a strike vote,
it is an active interference with the exercise of its right to "bargain collectively"
for the employer to undercut its authority by a vote of his own .; it is to go over
the heads of the representatives to their constituents; to discredit them as repre-
sentatives, to destroy their power to bargain as such
See also Matter of Hopwood Retinning Company, Inc and Monarch Retnnnnig Coinpany,
Inc and Metal Polishers, Buffers, Platers and Helpers International Union Local No S,
and Teamsters Union, Local No 581,, 4 N L R B 922, enf'd as mod. N. L R B. v Hopwood
Retinning Co , 98 F (2d) 97 (C. C A 2) ; Matter of Riles - Coleman Lnniber Company and-
Puget Sound District Council of Lumber and Sanoinill Workers, 4 N L R B 679 enfd
N L R B. v Biles-Coleinan Lumber Co . 98 F. (2d) 18 (C. C A 9).
NEWARK MORNING LEDGER COMPANY 1001
tice for newspaper publishers to discharge employees because of
their affiliation or activity in the Guild. Hochstein replied that the
employee was "naive" that "leaders in the labor movement had to
be resigned to losing their jobs and losing personal advancement
if they insisted on fighting for the members of their organization."
The employee was refused a salary increase. While Hochstein at
the hearing denied making this statement, his previous anti-union
statements above mentioned, as well as the circumstances mentioned
below in which his anti-union attitude was further shown, convince
us that his denial in this regard warrants no credence.
About April 21, 1936, in a period of 1 or 2 days, the respondent
tendered for execution to each of its editorial employees, except
those whom it (lid not intend to retain in its employment, a so-called
"individual contract" of employment. Hochstein made the tenders,
either presenting the contracts to the employees at their working
places or summoning them to his office for such purpose. The re-
spondent did not inform or consult with the Guild Local or the
Ledger Unit about this procedure., The draft contracts each recited
that it constituted an agreement of the respondent with the respective
individual employee, and provided for a 1-year period of employ-
ment subject to termination on 2 weeks' notice, for stated compensa-
tion, a 48-hour working week, and a 2-week vacation with pay.
Except in six or seven instances the compensation provided was the
salve as that winch the respective employees were then receiving.
The workweek and vacation provisions likewise continued the exist-
ing practice. The six or seven employees whose contracts provided
for salary increases were informed that the rise was dependent upon
their signing the contracts, and others were told they would receive
an increase in the future provided they signed. The contracts con-
tained no provision assuring the individual employee that the re-
spondent would interpose no objection to his membership in the Guild
and would not influence him to withdraw from such membership, nor
any assurance against discharge except in cases of gross incompetency,
flagrant violation of professional ethics, or extreme insubordination,
all as contained in the tentative agreement which Newhouse had
"guaranteed." Hochstein told at least one employee that by signing
the contract the employee would "evidence" his "willingness to play
ball with the management; would give the management assurance
there would be no trouble connected with [his] ... working for the
paper during the life of the contract," and frankly informed another
"that the purpose of the contract was to keep the Guild from coming
in; that by signing up each individual it would be obviously im-
3° Fahy the employee hen em involved, was among those not offered a contract This
circumstance is considered hereinafter
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible for the Guild to continue negotiations." Substantially all
the employees who were requested to sign the contract did so.
On May 4 and 7, 1936, the Ledger Unit met for the purpose of
discussing the situation which had arisen as a result of the respond-
ent's action in initiating and requesting execution of the individual
contracts of employment. Dissatisfaction with the respondent's con-
duct was expressed by the employees. It was stated by individuals
present that the respondent by its acts had repudiated the "guaran-
tee" it had made "not [to] enter into any individual contracts with
the present or future employees in the editorial department"; that
the execution of such contracts was contrary to one of the "funda-
mentals" of all unions and organizations; and that the contracts in
question would hinder the Guild in its future course of action to
obtain an amelioration of working conditions. It also was pointed
out that the respondent's action amounted to a disclaimer of New-
house's assurances of "Guild protection" and of continued tenure of
employment for 1 year save in the exceptional instances heretofore
mentioned. The Unit unanimously resolved to request the Guild
Local to discuss the matter with Newhouse through the local negotia-
tion committee.
On May 19, 1936, the local committee conferred with Newhouse.
They told him that employee members of the Ledger Unit were dis-
turbed by the general institution of individual contracts in violation
of assurances which had been made. Newhouse replied that some
employees on the editorial staff who were not members of the Guild
had asked the respondent for an individual contract, that the re-
spondent determined to grant these requests since "these employees
would not be included in any contract the Guild might make after
January 1," and that the respondent had decided "to offer the con-
tracts, generally, because there might be others who would want
them." At the hearing Newhouse testified chat he told the committee
"the contract was for the benefit of the employee, not for the benefit
of the management, and for the necessity of management." The
committee asked Newhouse whether the respondent would cancel an
individual contract upon request of the employee signer. Newhouse
replied that he would not discuss the matter at that time with the
Guild. The committee then inquired whether the respondent would
cancel all contracts if all employee signers requested that that be
done. Newhouse's answer was the same. He was asked if the indi-
vidual contracts would be superseded by any collective contract which
the respondent might make with the Guild Local after January 1,
1937. His answer was merely, "Any advantage in the Guild contract
will go to the others."
At the time the respondent requested its editorial employees to
execute the individual contracts of employment, and thereafter, the
NEWARK MORNING LEDGER COMPANY 1003:
Guild Local was the duly constituted statutory representative of all
these employees for purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment.16 There is no showing that the contracts of employees
whom the respondent retained in its employment after April 1936,
were in any manner terminated prior to the expiration date therefor
1 year later. At the hearing the respondent contended that it dis-
tributed the individual contracts in pursuance of an understanding
with one of its large stockholders that this would be done as a condi-
tion to increasing the salaries of some six or seven employees at that
time. We think it plain that the respondent's inauguration of a
system of individual employment contracts for its entire editorial
staff was designed to weaken unionization among these employees, to
undermine the authority of the Guild Local as their exclusive collec-
tive bargaining agency under the Act, and to strengthen at the same-
time the vantage it had achieved the previous December in regard to.
collective bargaining with the Local. By requesting individual con--
tracts of members of the Ledger Unit, among others, the respondent,
struck at the essence of their organization, vii, that all matters per-
taining to basic terms and conditions of employment be resolved solely
through collective bargaining by the Local. In so far as the Guild_
Local was the statutory representative under Section 9 (a) of all
editorial employees, the making of individual contracts by direct-
dealing with these employees "undercut" the authority of the Local
to act within the sphere of representation, and established a prece-
dent hostile to its future action.17 Finally, by endeavoring to bind
contractually each employee until April 1937 to the basic terms of-
his employment the respondent manifested to its editorial staff a
determination to render difficult if not wholly impossible during that
period any negotiations with the Guild Local for a collective agree-
ment covering such matters.18 That negotiations for such an agree-
16 See footnote 7, supra
17 In Matter of Williams Coal Company and United Mine iVoriers of America, D,ct,met
No 23, 11 N . L. R B 579 , 644, an employer sought to change the terms of an outstanding-
collective agreement by negotiation with individual employees , although these employees
were then represented by a statutory representative Concerning such conduct the Board'
said :
Such a practice by an employer is completely destructive of the principles of
collective bargaining, for it not only "undercuts " the authority of the chosen repre-
sentative to act within the sphere of representation in regard to the modification of
a collective bargaining agreement but subjects the individual employee to the very
pressures which collective bargaining would obviate
Senator Wagner stated , Hearing on Sen Bill 1958 , 74th Cong, 1st sess , pt 1, p 43,
"To attempt to deal with his men otherwise than through representatives they have
named for such purposes would be the clearest interference with the right to bargain
collectively ." See also footnote 14, supra.
'6 We need not consider the validity of the individual contracts under the Act, nor to
what extent if valid they would have precluded collective bargaining . It is of conse-
quence , however , that the respondent intended in foisting these contracts upon its edi-
torial staff to raise an obstacle to their bargaining through the Guild Local Employee
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment had been suspended by the Ledger Unit until January 1937 is
of no particular significance. When in December 1935 the employee
members of the Unit decided upon that course they did so only after
Newhouse had "guaranteed" that the respondent would enter into no
individual contracts with editorial employees during 1936. They
assumed that this specific assurance would safeguard the integrity of
the Guild as their union and as the statutory representative. Indeed
other assurances which Newhouse had given were reasonably Inter-
preted as directed to this end. He represented that the respondent
would not object to its editorial employees being members of the Guild
and would discharge no one except in certain specified cases. The
making of the individual contracts violated both representations, for
it manifested a hostility to the Guild and removed any restriction
upon discharge except the giving of prior notice thereof.
During the life of the individual contracts the Ledger Unit re-
f rained from directing the Guild Local to resume negotiations with
the respondent for a collective agreement. In April 1937, however,
as the individual contracts were about to expire, editorial employees
of the respondent discussed the institution of collective bargaining
for a collective agreement which would supersede the individual
contracts. As these conversations were occurring the respondent
announced generally to its editorial staff that within the following
'6 months the regular working week would be shortened to 5 days.
The Guild had not solicited this improvement in working conditions;
as stated, negotiations had not been begun. That the respondent
believed that there existed sentiment among the editorial employees
for a shorter working week is manifest from the remarks on that
subject made by Hochstein during a speech to the editorial staff in
the previous December. We are impressed with the fact, and find,
that this grant in futwro of what would constitute a notable gain
for the editorial employees, coming as it did when they were delib-
crating whether to call upon the union to negotiate in their behalf
after 11/2 years of dormancy in that respect, constituted another
tactical step of the employer calculated to "head off" the necessity for
its treating with the union and to emphasize its desire for direct
dealing with the editorial employees.79 However, on April 26, 1937,
members of the Ledger Unit so interpreted the respondent's action Negotiations for a
'collective agreement with the respondent were not resumed by the Guild Local until the
individual contracts terminated
10 Concessions b^ an employer to employees under circumstances disclosing the grant
as designed to undermine collective action through a legitimate union . have been observed
as such in the decisions of the courts as well as of the Board In N L R B v American
Potash and Chemical Corporation , 98 P (2d) 488 (C C A 9 ), cert den , 306 U S. 643,
the court adverted to concessions made by the employer through grants to a company-
-dominated Association at a time when the legitimate union was organizing the employees
in anticipation of collective bargaining , saying
For mole than a near following passage of the Act, the [emplover-dominated] Associa-
tion made some attempts to gain better wages and to ieheve the unsatisfactory
NEWARK MORNING LEDGER COMPANY 1005
the publisher of another newspaper in Newark reached and signed
a collective agreement with the Guild Local covering working condi-
tions of its editorial employees, and thereupon the Ledger Unit
decided to request the Guild Local to open negotiations with the
respond'ent' for a similar collective contract in its behalf. The Unit
determined that the respondent should be approached on the basis
that another Newark publisher had signed a collective contract with
the Guild Local. Negotiations accordingly were resumed, and on
August 12, 1937, the Guild Local succeeded in obtaining a collective
contract. The contract recited in the preamble thereof that the Local
had acted on the premises "for itself and on behalf of the editorial
department employees," and provided, among other things, for a
5-day working week, minimum wages, and a prohibition against
employer discrimination for membership or activity in the Guild_
There is no showing that thereafter the respondent attempted to
enter into individual contracts of employment with its editorial,
employees.
Beginning in October 1935 and continuing throughout the entire
period under review the Ledger Unit was seriously concerned with
the so-called Mogelever incident. Mogelever became the respondent's
city editor in September 1935 and was a, member of the Unit. As
city editor he supervised the work of editorial employees, assigned
work to them, and made recommendations to the respondent regard-
ing their employment and discharge. In October 1935 he was in-
formally -asked to resign from the Guild because of the conflict in his
interests as city editor and as a loyal union member. Mogelever re-
fused to do this, claiming that the request was motivated by personal
reasons. In November and December 1935 while negotiations were
being carried on for a collective agreement with the respondent,
Mogelever bitterly castigated various members of the local negotia-
tions committee and members of the local executive committee about
matters then in negotiation. During that period, he, together with
one Hammerslag, an employee of the respondent, led what the re-
spondent in its brief describes as the "conservative" faction of the
Ledger Unit. In January 1936, following discontinuance of negotia-
tions with the respondent, eight employee members of the Ledger
Unit formally petitioned the Guild Local to expel Mogelever as well
as Hammerslag from membership in the union, on the ground that
housing situation in Trona These moves were for the most part fruitless until
concessions on both matters were made by iespandent in April 1936 , the high point of
the Borax and Potash Workers ' Union organization campaign The Board justly in-
ferred that such success , coming after a long period of chronic inability to bargain suc-
cessfully , was due to respondent 's desire to head off the American Federation of Labor
union rather than to any pressure from the Association
See also N. L R B. v Falk Corporation, 102 F (2d) 383 (C C A 7), enf'g Matter of
The Falk Corporation and Amalgamated Association of Lion, Steel and Tin Workers of-
North America, Lodge 1528, 6 N L R B 654.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "interests" of these individuals were "definitely with the publisher
against the American Newspaper Guild." 211 The written petition
stated that "the record of [Mogelever 's and Hammerslag's] .. .
actions during the period ending with the suspension of negotiations
with S. I. Newhouse 21 . .. furnishes ample proof of this charge."
A signed statement particularizing the respects in which the two
men allegedly had allied themselves with the respondent and against
-their union was submitted to the local executive committee .21 The
statement charged the men with having engaged in acts designed to
prevent the Guild Local from obtaining any contract with the re-
spondent which would confer substantial benefits upon employee
-members, having caused the suspension of negotiations and disunity
in the ranks of the Ledger Unit, and with constituting themselves
agents of the respondent to thwart the purposes and aims of the Guild
and to deprive the respondent 's employees of the benefits of collective
action . A written answer to the petition was filed by Mogelever and
Hammerslag with the local executive committee . On January 15,
1936, the local executive committee sustained the charges and directed
that Mogelever and Hammerslag tender their resignations from the
Guild.23 The two men refused to do this , and a "trial board" con-
sisting of five persons elected by and from the membership at large
'of the Local was then constituted to hear and determine the charges
against them in accordance with the constitution of the union. From
February to May 1936 hearings were held before the trial board and
in December 1936 a decision was reached . The trial board dismissed
the petition against Hammerslag, but found that Mogelever 's inter-
est,, in the Guild lay with the respondent -employer and against the
union, that certain of his actions in the Guild were motivated, as
charged, by a desire to favor the respondent 's interests and not those
of the employee members. The trial board accordingly ruled that
-Mogelever be expelled from membership . Mogelever appealed to the
membership at large of the Local, and it confirmed the action of the
trial board . Without exhausting his right of further appeal in the
organization as provided in the constitution of the Guild '24 Mogelever
in January 1937 filed a bill of complaint in the Court of Chancery
of New Jersey praying for an injunction to restrain the Guild Local
21 The constitution of the Guild provided : ` No member whose interests are deemed by
-the Unit or by the Executive - Committee of the Guild to lie with the employer shall be
allowed to remain a member
21 Publisher of the Ledger
2= Board Exhibit 21•
23 Membei s of the local executive committee who wet e employees of the iespondeut cast
no vote on the matter of expelling the two men
24 The constitution of the Guild , introduced in evidence , provides that " in the event
-of dissatisfaction with the decision of the trial board appeal may be carried to the D C
[District Council] of the I E B [International Executive Board] which shall make a
-final finding , subject in the case of a D C to review by the I E B the decisions
'of the I E B may be appealed to the next ensuing national convention [of the Guild] "
NEWARK MORNING LEDGER COMPANY 1007
from expelling hini.25 On September 15, 1937, the court adjudicated
that Mogelever "after a fair trial, i\ as expelled from the defendant
Guild in accordance with the constitution " and, accordingly , entered
its decree dismissing the bill of complaint , with costs including coun-
sel fees.26 The respondent learned of the decision the following day.
The record shows that the respondent knew from the outset of
the steps taken within the Guild to expel its city editor from the
union , and assisted him in his attempt to defeat expulsion. After
the petition for ouster was submitted to the local executive com-
mittee Hochstein in a conversation with one of the editorial em-
ployees inquired whether the employee intended to participate in
any union trial upon the charges , which Hochstein characterized
as "ridiculous ." Hochstein was furnished , and discussed with
Mogelever shortly after it was written, a statement prepared on
January 29 , 1936, by Mogelever and Hammerslag for circulation
among members of the Guild setting forth in detail their defense to
the charges. Hochstein loaned Mogelever $700 to defray expenses
arising in connection with Mogelever 's appeal in the Guild and his
action before the court to prevent his ouster . In January 1937 the
respondent itself loaned $300 to Mogelever to meet court expenses
incident to his ouster after being fully apprised of the circumstances
of the expulsion and of Mogelever 's intention and purpose in seek-
ing an injunction.27
On the morning of September 22, 1937, a week after the decree
of the Court of Chancery of New Jersey in the Mogelever suit and
about 1 month after the execution of the collective agreement With
the Guild Local, the respondent published on the editorial page of
the Ledger am open letter to William Green, president of the Ameri-
can Federation of Labor, written by Hochstein , prominently fea-
tured, and dealing in part with the respondent 's labor relations
Mogelever v Newark Newspaper Guild, 122 N J . Eq 316, 194 Atl 6; aff'd 124 N. J
Eq 60 , 199 AtI 56
26 Upon an appeal by Mogelever to the New Jersey Couit of Errois and Appeals, that
court on May 11, 1938, affirmed the decree dismissing the bill, Mogele-er v Newark News-
paper Guild, 124 N J. Eq . 60, 199, Atl . 56. In its opinion the appellate court said :
We find no justification for the flouting of the tribunal set up with the society [the
Guild] for the adjudication of a controversy such as this-one that involves a funda-
mental policy of the subordinate body , i e , whether the interests of the member lay
with the employer -publisher as against the Guild and its members , and therefore
peculiarly for the cognizance of the organization itself in the first instance
The date when the loan was made to Mogelever by Hochstein does not appear from
the record , but it is clear that it was made sometime during the course of the ouster
proceeding and for the purpose above mentioned The loan was indefinite In character,
no provision being made for repayment , and apparently no security od any written evidence
of indebtedness was offered or demanded Mogelevei testified that in March or April
1938 he repaid $ 200 of this debt , and in September 1938 paid $275 for counsel fees
assessed against hint to the court , both payments being made not by check but by cash
with money kept in his home which he had saved In so far as the respondent was con-
cerned , the respondent appears to have made loans to other employees as well , although
the purpose of said advances is not shown . The loan of $300 which it made to Mogelever,
above mentioned , had not been repaid at the time of the hearing
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Guild, the contract that had been signed, and the Mogelever
incident. The letter stated in part as follows :
We see by the papers that you [Green] are planning a new
union of news writers in opposition to the Newspaper Guild,
which is affiliated with Mr. John L. Lewis' C. I. 0.28 Your an-
nouncement, we confess, is somewhat disturbing to us, inasmuch
as we have a collective bargaining contract with the Newspaper
Guild, which was arrived at after two years of arduous-if not
always patient negotiation.
We would like to tell someone how we feel about all this
organization and counter-organization that is going on in our
midst. Under the Wagner Labor Relations Act, which you suc-
cessfully sponsored, we believe it is illegal for us to discuss this
matter with our employees . . .
Now, Mr. Green, as we have already stated, we have a col-
lective bargaining agreement in our office with the Newspaper
Guild . . . This agreement applies trade union standards such
as have been applied in the past to manual and mechanical
workers to news reporters, writers and editors. Our editorial
employes once upon a time were professional workers, but the
law changed that and we, of course, want to be law-abiding-
even though the law makes it much more difficult to create the
daily news report for our readers. . . .
As we have already told you, the Guild numbers about 20
members in our office. A little more than that number seem to
be possessed of a stubborn streak and have failed to march with
Mr. Lewis... .
Among the unorganized members of our office, there has been
a growing feeling that they need an organization to protect
themselves against organization.. . .
... Under your Wagner Act, we are commanded to be an
ostrich, so far as the class struggle in our office is concerned.
We are not to encourage unionism and we are not to discourage
unionism. We are not to be interested in the opinions of the
members of our staff and we are not to encourage any trend
or tendency in their thinking. Sometimes this injunction to be
an ostrich is embarrassing.
... We confess, however, that we have not yet acquired this
perfect and legal neutrality. We have just learned that one of
our employes, who was a member of the Guild and who failed
to express adequate dislike for us as a class enemy, has' been
' This refers to John L Lewis, president of the Congress of Industrial Organizations
with which the Guild is affiliated.
NEWARK MORNING LEDGER COMPANY 1009
expelled front membership because of his wayward state of mind.
We evidently failed to earn his class hatred.
Now, Mr. Green, we do not want you to think that we are
complaining. . . . We are having a fairly good time of it and
are intrigued by the problem of creating an etiquette for dealing
between class enemies... .
... Now, we are concerned with the possibility that the 25
or so non-Guild members of our editorial department and pos-
sibly a few of the Guild members may join your union because
of its reputation for moderation. . . .
... Now, Mr. Green, friendliness may be a virtue quite de-
sirable. Enmity may be very unpleasant. Under the circum-
stances, however, we prefer a legalized and therefore orderly
enmity, such as exists under our Guild contract, to a strife-torn
friendliness such as would come to us if you organized our em-
ployees.. . .
. . . We appreciate your emotive and thank you, but at the
same time ask you to PLEASE desist from your kindly min-
istrations and let bad enough alone. . . .
This is not a time, Mr. Green, for friendly and temperate
relations. They are too trying on the nerves. This is a time
for armed truces. We do not mind the bayonet staring us in
the face, when we know that it won't strike at least until a
certain specified date.
Also on September 22, 1937, Fahy, the employee mentioned in the
complaint, was discharged under circumstances more particularly
hereinafter set forth.
B. The discriminatory discharge
Agnes Fatty was discharged by the respondent on September 22,
1937. She had been on its editorial staff for over 8 years and at the
time of her dismissal was the third oldest employee in point of serv-
ice. She then was employed principally on "rewrite" work.
Fahy became affiliated with the Guild in 1933 when the union en-
rolled?its first members in Newark. She was active in the affairs of
the Guild Local, and shortly after the time that Newhouse acquired
control. of the respondent corporation rapidly rose through various
official positions in the Local until in August 1937 she assumed its
presidency. In the same month she was appointed by the mayor of
Newark to membership on the Newark Labor Relations Board.
Within the Ledger Unit Fahy consistently adhered to a militant
trade-union point of view. When on December 27, 1935, the Unit
deliberated the question of suspending negotiations with the respond-
,ent for a period of a year and relying on the."guarantees" announced
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Newhouse, the effect of which action would be to accord the re-
spondent the .-ery immunity against treating with the Guild Local for
a year which we found lay at the bottom of the dispute over the recog-
nition clause, Fahy urged upon the Unit that the negotiations be
suspended only "indefinitely" and not for any such fixed duration.
She was one of the eight employee members of the Unit who a few
days later signed and submitted to the Local the petition for Mogel-
ever's and Hammerslag's expulsion from membership, for the reason,
already mentioned, that the interests of these men in the Guild were
to favor the respondent's and not the employees' advantage. At a
meeting of the Ledger Unit in February 1936 she proposed that an
inquiry be made of the respondent through the Local concerning the
termination of employment of certain editorial employees .21 The evi-
dence shows that within the preceding 21/., months there was a sever-
ance of the employment of 10 employees who had represented in the
Unit counsels the same point of view which Fahy entertained 11
The respondent early became aware of Fahy's individual militancy
and views on union matters.31 In April 1936 it refrained from request-
ing her to sign an individual employment contract although as above
mentioned all editorial employees except those whom the respondent
did not intend to retain in its employ were asked to do so. Fahy was the
only employee singled out for such preferred treatment. Some time
later Hoclistein informed her that no contract had been requested be-
cause he "did not think she would sign it." At the hearing he stated that
there was "no reason for the respondent's action] that I now know
of." We think it plain that the respondent tendered her no contract
because it recognized that her loyalty to the Guild and her consistent
adherence to its principles would render a rejection inevitable and any
tender futile. Nor was Fahy's devotion thereafter to her chosen course
of aggressive trade-unionism within the Guild unknown to the re-
spondent. In September 1936 about the time of her elevation to the
position of secretary-treasurer of the Guild Local Fahy approached
the respondent on a personal natter involving an increase in her salary.
Some weeks later Hochstein told her that the respondent would grant
the increase provided she wrote a letter stating that she "would do no
more bargaining for a year." Fahy refused because she considered
the signing of such a statement the equivalent of executing one of the
^ This proposal was tabled upon a vote taken
so At the hearing evidence was introduced on the matter whether these and certain other
employees were discharged by the respondent because of their militancy in the Ledger
Unit. The Trial Examiner in his Intermediate Report indicated that this had occurred.
No specific allegation of the complaint alleged such discrimination to be in violation of the
Act and the affidavit furnished the respondent as a statement of particulars did not
specifically aver the discharges as constituting unfair labor practices In any event we
find it unnecessary to consider the matter, and, therefore, make no findings in that respect
"Reference has heretofore been had to Mogelever's close association with Hochstein
as well as to the respondent being generally well informed iegarding the affairs and
business of the Ledger Unit. See footnote 11, supra.
NEWARK MORNING LEDGER COMPANY 1011
respondent 's individual employment contracts . Although at the hear-
ing Hochstein sought to explain that the respondent merely had
wished a letter of Fahy stating facts for granting an increase to be
submitted to one of the respondent 's important stockholders for ap-
proval, we have no doubt, and we find, that the respondent in fact
attempted to utilize the occasion and the device of the letter to elicit
from Fahy a written expression of willingness to subordinate her
future position on union action to the transaction at hand. Six months
later , as the individual employment contracts were about to, expire
and discussion was being had among the respondent 's editorial em-
ployees concerning the advisability of negotiating a collective agree-
ment with the respondent, Fahy prompted the calling of a meeting of
the Ledger Unit to consider the question. However, at a subsequent
meeting of the Unit in May she recommended that it stay the begin-
ning of negotiations pending the outcome of two strikes then being
carried on, one by a mailers' union against the respondent and another
by the Guild against the Long Island Press, a newspaper publishing
company controlled by Newhouse. While the Unit did not believe
that negotiations should be stayed , it adopted a resolution offered by
Fahy to go on record as supporting the strike against the Long Island
Press, and directed that the Guild Local be instructed to notify New-
house of its position in this respect and that it demanded that the
strnke,be settled. Both strikes thereafter ended and in August 1937
while negotiations for a collective agreement between the Guild Local
and the respondent were proceeding, Fahy became president of the
Local, as above stated, and chairman of its executive committee. While
she was serving in that capacity , the first collective agreement which
the Local succeeded in negotiating with the respondent was signed.
Paralleling this sequence of events was the sustained prominence
in connection with the Mogelever incident to which Fahy's union
interests carried her. Although Mogelever was her superior on the
respondent's editorial staff, she left little doubt at union meetings and
deliberations that she consideed Mogelever's acts in the Guild as
designed to further the respondent 's interests and not that of the
employees. She felt that his ouster was essential, and firmly adhered
to that position even after all others within the Ledger Unit of
similar mind had had their employment with the respondent termi-
nated, for one reason or another. 3' On January 15, 1936, she testified
against Mogelever at the meeting held by the local executive coin-
mittee to consider the charges against him and Hammerslag . During
the hearing before the trial board from February to May 1936 she
again appeared as a witness in support of Mogelever 's ouster. In
June 1937, after Mogelever applied to the Court of Chancery of New
12 See footnote 30 °upra
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jersey for an injunction to restrain his expulsion from membership
in the Guild, she appeared at a hearing on the bill and presented
testimony in support of the Guild's opposition to the application. As
already stated, on September 15, 1937, the Guild was successful in its
opposition, for the court then denied the application and assessed
against Mogelever counsel fees and costs of approximately $500.
Prior to May 18, 1937, Fahy's duties on the Ledger consisted partly
of special reportorial and editorial work relating to religious and
church affairs and women's political activities. She also performed
a substantial amount of general reportorial work and so-called "re-
write," that is, rewriting in news-story form various reports and
other items of information gathered from different sources. On May
18 the respondent discontinued the "church" page of the Ledger, in
which religious and church news had been presented and also ended
its special handling of news about women's political activities.
Thereafter news of this character was treated as ordinary news,
reported and written only when of sufficient general interest and by
the editorial staff at large. On May 19 Fahy was transferred to
perform "rewrite" work almost exclusively, and the hours of her
working day were changed to from 4 p. in. to 12 p. m.` At the
hearing the respondent claimed that because a substantial portion of
Fahy's work was thus no longer required of her, Hochstein had then
proposed that the respondent discharge her, but upon Mogelever's
suggestion that he, Mogelever, "try" her "in all kinds of tasks, all
kinds of assignments and duties" consented to her transfer. In any
event, until her dismissal in September 1937 Fahy continued at this
work. According to Mogelever's testimony Fahy in May and June
1937 .was regularly assigned "hand-outs"- and other items to rewrite,
but in July was permitted to rewrite items of only "lesser impor-
tance," and thereafter the amount of her work "tapered off a bit."
Fahy testified that she was assigned hand-outs for rewriting but their
number gradually diminished, that while she also wrote a short series
of biographical sketches and a few stories "on general assignment" 15
no substantial amount of work was given her. The record shows,
and we find, that after May 18, 1937, no news story or item of any
importance was assigned to Fahy for editorial or reportorial work;
that the work assigned to her progressively diminished in significance
and amount, and that by the time of her discharge she had been
relegated to a position of unimportant tasks and comparative idleness.
3^ Rewriting on the respondent's paper is noimally carried on at night Upon Fahy's
iequest her working hours originally set to end a little later were reset to end at
midnight.
+A "hand-out" is a news report issued by a news source
"General assignment " consists of initial investigation and repotting on a matter
of news interest , and writing a news story regarding the same
NEWARK MORNING LEDGER COMPANY 1013
In the period between May 18 and September 22, 1937, while Fahy's
position on the Ledger was undergoing these changes, the Guild
Local, as already mentioned, in the early part of August elected her
its president and chairman of the executive committee, on August
12 under her leadership brought its 3 months' negotiations with the
respondent for a collective agreement to a successful conclusion, and
on September 15 won its case iii. court against the attempt of
Mogelever to enjoin his expulsion.
On September 20 Fahy approached Hoclistein for the purpose of
obtaining his permission to attend a prospective meeting of the
Local which was to be held during her working hours. She, pre-
sented her request and suggested that the respondent could make an
appropriate deduction from her pay. At the hearing Hochstein
stated that lie resented the suggestion about the deduction because
lie never before had docked her pay for time taken to attend such
meetings. However, the evidence shows that with the exception of
two occasions when Fahy obtained Mogelever's permission to par-
ticipate in conferences of the Guild with the respondent, all union
conferences and meetings attended had been outside of working
poufs. Hochstein's reply to the request was inconclusive. Accord-
ing to Fahy's testimony Hochstein then commented upon her being
"iuihappy"; according to Hochstein's testimony Fahy initiated the
discussion which followed- about her "unhappiness." In any event
Hochstein in that connection alluded to her idleness, saying that Fahy
had not been sufficiently productive, had been "parading"'10 in the
office, and "seemed" to be "busy about [her] . . . own affairs."
Fahy replied that the volume of her productivity was controlled
by Mogelever, and denied making personal use of the respondent's
time. Hochstein stated that in view of her "unhappiness" he would
ask for her resignation. Fahy did not reply. Two days later
Hochstein summoned Fahy to his office and discharged her. He
stated as the reason therefor 'that-the respondent's institution of a
5-day working week on September 17 necessitated its econoinizing
and accordingly it had determined to dismiss her 3,
At the hearing the respondent contended that it discharged Fahy
for business reasons, that its inauguration of the shorter working
week emphasized a need for economy in its editorial department and
Fahy's asserted incompetence made her readily dispensable.s It is
99 At the hearing Fahy explained that because of her idleness she had on occasion walked
about the office to break the monotony We are satisfied that she had not thereby dis-
tui bed any one No complaint about the matter had eves been made to her.
3T As previously stated , the respondent in Api it 1937 announced the institution within
6 month., of a shoitet «oiking week The contract of August 12 provided for the 5-day
working week.
18 In its brief to the Board the respondent took the following position as to the reasons
for Faby 's discharge
We want to make the respondent's position clear, namely , that although the neces-
sity for economies contributed to Miss Fahy 's discharge, it was not the sole reason
283032-41-vol. 21-65
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparent that the respondent followed no seniority principle in the
dismissal, for as mentioned above Fahy had been on the editorial
staff of the Ledger for more than 8 years and was the third oldest
employee in length of service.
Essentially the respondent's position narrows itself to the prop-
osition that the cause of Fahy's discharge was her alleged incom-
petence. There is no persuasive showing that need for economy in
the editorial department was either the moving cause or a factor
in the discharge.39 Five of the respondent's witnesses testified con-
cerning Fahy's asserted incompetence, Hochstein; MDgelever; one
Webster, its news editor; one Winn, head of the copy desk; and
one Menagh, a former employee who had been acting city editor
and head of the copy desk between 1927 and 1934. Hochstein's
testimony was vague and in parts self-contradictory. He was un-
certain as to the nature of Fahy's work when he asked her to resign.
We have heretofore commented on the credibility of this witness.
He testified that her work was "just .. , matter of fact," and
that his opinion of it was not "very high." He stated that while
Fahy was able to discern items having news interest, she was in-
capable, except in certain respects, to write the news in readable
therefor. As the record discloses, it was the necessity for economy plus other con-
siderations, including Miss Fahy's inability to handle the work assigned to her, her
mental attitude, the fact that she had no dependents, and all the other matters
referred to at the hearing in relation to her discharge
The reasons other than business conditions thus urged by the respondent plainly are
without support in the record and require no consideration here The respondent offered
in evidence a portion of an article published in The Guild Reporter, official publication
of the Guild, dated September 27, 1937, which we have admitted to the record and which
suggested a "possible political angle" as the reason for Fahy's discharge we find that
this was not a factor in Fairy's discharge The story in question is patently opinion
matter and speculative in character, and there is no evidence apart from it to warrant
a finding that political considerations played any part in Fahy's discharge
o In so far as the alleged need for economy in the editorial department may be sail
to be evidenced by the respondent's general financial condition, that condition was not
one newly arisen when Fahy was discharged During the fiscal yeai s ending April 30
1936, and, April 30, 1937, the respondent sustained operating deficits of $62,000 and
$73,000, respectively Newhouse acquired his controlling interest iin 1935 when the re-
'spondent corporation was in receivership Further, it is not clear that the financial
position of the respondent after April 30, 1937. and piipr to the discharge had not
improved Compared with an operating loss of $9,000 for May. Tune, and Tuly 1936
the respondent during the same months in 1937 showed a profit of $800 While in August
1937 the respondent had a loss of $19,000 and in September a profit of $5 000 the corre-
sponding figures for 1936 were not offered by the respondent Finally, it is not altogether
certain that the remedy for the respondent's financial condition did not rest elsewhei e
than in a dismissal of an editorial employee Newhouse in his annual speech to the
editorial staff in December 1935 told the employees that the respondent did not propose
to discharge any editorial employee for economy reasons Hochstein stated in a similai
address in December 1936, that the respondent's financial difficulty was dice to a loss in
advertising revenue, and, as regards the status of its employees, the respondent's
"problem" was not one of discharging editoiial employees From May 1937 until the tmio
of Fahy's discharge the respondent hired nine additional editorial employees six of whom
were still in the respondent's employ in September In April 1937 the respondent an-
nounced, as heretofore mentioned, the institution of a shorter working week, although such
a, change would increase editorial expenses -Indeed in' December 1936 the i espgndent
had informed its editoiial staff that it would shorten the working, week when it was
"econdmically'possible" to do so
NEWARK MORNING LEDGER COMPANY 1015,
form. He admitted that he never complained to Fahy about her
work; indeed the only news story which he recalled as having been
written by her was one which had met with his praise in respect
to a certain phase of it. Mogelever testified that Fahy's writing
after May 18, 1937, was "stilted," "dull," and lacking in "original-
ity," and not suitable for a tabloid newspaper like the Ledger ; that
between May 18 and September 22 he complained about this to
Fahy on at least six occasions and to Winn and Webster approxi-
mately 10 times; that in "most instances" the items involved required
rewriting. However, while Mogelever had been city editor since
September 1935 and while Fahy prior to May 18, 1937, had performed
a substantial amount of work at rewrite and "on general assign-
ment" apart from her special editorial and reportorial work, it was
not until 1937 that Mogelever "discovered" the unsuitability of her
style. He recalled specifically only two news stories which he iden-
tified as having been written by Fahy and of which he had com-
plained, one of which, supposedly very poor in draftsmanship, in
fact had not been written by Fahy. In view of the Mogelever
incident and Fahy's participation therein we do not feel that Mo-
rgelever was an unbiased witness. Webster testified that Fahy's
work after May 18 was "average, not outstanding, in many respects
. .. inferior"; that he "repeatedly" complained to Mogelever about
it However, none of these complaints was made to Fahy. On
cross-examination Webster admitted that "many times," "nightly,"
he directed editorial employees other than Fahy to rewrite news
stories ; that her stories required no more rewriting than those of
other editorial employees; that the other employees had been retained
by the respondent; and that he was "rather hard to please." Winn
testified that Fahy was a "very mediocre" writer and her stories
were "foggy"; that since 1935 he complained of Fahy's writing to
Hochstein and Mogelever. Elsewhere he testified that these con-
versations with Mogelever occurred in 1936 and in the summer of
1937. His testimony, as it relates to Fahy's special editorial and
reportorial work, contradicted other of the respondent's witnesses.
Winn was not authorized to make criticisms to Fahy about her work,
but stated that he "naturally" discussed her work with her and
occasionally asked her to make revisions. He was unable to identify
the stories involved, and Fahy denied that Winn had ever so cor-
rected her in her writing. Winn's principal duty at the copy desk
was to edit copy and write headlines after necessary revisions had
been made. He did not read completely the news stories which he
received. Menagh testified that while he believed that Fahy's
writing, considered from the viewpoint of a tabloid newspaper was
conservative, he had a high regard for the quality of her writing and
for her capacity as an editorial employee. He considered her ability
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to write on general assignment and rewrite as competent, and her
work that of an "intelligent, capable writer." When interrogated
as to whether Fahy's work was as proficient as that of another
editorial employee of acknowledged skill, Menagh stated that such
employee's work dealt with a "different subject matter" but Fahy's
work was "superior."
We are not satisfied either by the testimony and proffered testi-
mony of the foregoing witnesses or by the record as a whole that
Fahy at the time of her discharge was an incompetent editorial
employee. Nor are we persuaded that the respondent actually then
so regarded her. It is evident, and we find, that prior to Fahy's
transfer on May 18, 1937, to perform rewrite almost exclusively,
her work both in connection with church and religious news and wo-
men's political activities, and in connection with general reportorial
assignment and rewrite was competent and well-considered by the
respondent. It is difficult for us to believe that if this had not been
true Fahy would have been retained by Newhouse in the 2 years
preceding May 18. With the exception of Winn the respondent's
witnesses, in so far as they expressed dissatisfaction with Fahy's
work, referred to the period of her employment after May 18. Whin
not only differed with Menaglyand with other witnesses who testified
to the good quality of Fahy's editorial work, but went further than
his superiors and, as above stated, his unfavorable appraisal of her
work included the special editorial and reportorial work. With re-
spect to Fahy's capacity after May 18 to perform rewrite, to work
on general assignment, and to discharge other duties required gen-
erally of the respondent's editorial employees, we also are convinced
and find that she was possessed of the requisite competence. As
more particularly set forth hereinafter her failure to obtain adequate
and congenial editorial work subsequent to that date did not result
from any deficiency in her ability to handle editorial work, but from
a planned course of action whicli the respondent was pursuing de-
signed to rid itself of an employee whose union activities made her
undesirable to the respondent. We do not believe that on or after
May 18 Fahy lost the capacity which was hers to do rewrite, general
assignment, or reportorial work. As above mentioned, prior to that
date she had performed this kind of work in addition to her so-called
specialties in church and religious news and women's political activ-
ities. Fahy' estimated that one-half of her time had been devoted
to such work, and it is clear that a substantial portion had been so
spent. In that connection several of her news stories had been given
prominence in the Ledger under her byline, both before and after
Newhouse became publisher.40
*a She al-o received 'by-lines" in connection with her specialties
NEWARK MORNING LEDGER COMPANY 1017
We are convinced that the respondent discharged Fahy on Sep-
tember 22 because of her leadership and activities in the Guild and
because the direct conflict with her employer's interests to which her
firm adherence to. union principles had led her made Fahy persona
non grata to the respondent. Throughout the period under review
the respondent was opposed to the Guild. Pressing a philosophy
which found formulation in Hochstein's statements about trade-
unions, but motivated essentially by economic considerations, the re-
spondent engaged during this period in a series of acts aimed to
undermine and weaken the union and defeat its functioning as a
collective bargaining representative. Thus, as heretofore mentioned,
in the latter part of 1935 when the Guild Local as the statutory rep-
resentative sought a collective agreement, with the, respondent in
behalf of the editorial employees, an agreement, three of whose seven
terms concerned protection of the union against employer attack,"
the respondent through its managing editor derogated the union to
these employees, defamed the union leaders, and by other statements
atten?apted to induce a withdrawal of the employees' support from
the union they had chosen to represent them. When in December
1935 these negotiations were temporarily suspended because of a
disagreement between the Local and the Ledger Unit over granting
the respondent an immunity for a year against treating with the
Guild, the respondent through its publisher promptly interposed
itself into the situation, spoke in detraction of the union, and by
direct overtures proceeded to undercut the union's authority. To-
ward the end of April 1936, indifferent, to the assurances of the
previous December upon which the editorial employees had relied
as safeguarding their union and action through it, the respondent
inaugurated the system of individual contracts of employment, there-
by again ignoring and undercutting the authority of the chosen rep-
resentative and manifesting a determination to deal on an individual
basis in regard to the terms and conditions of employment of its
editorial employees. While in the year following April 1936 and
pending expiration of the individual contracts of employment the
union initiated no negotiations for a collective 'agreement with the
respondent, the attitude of the respondent toward the Guild did not
change. In September 1936, when Fahy was first assuming impor-
tant leadership in the Guild Local, the respondent through Hochstein
was not averse to seizing upon her request for an increase in salary
as a basis for inviting a renunciation of union principles. In Janu-
ary 1937 the respondent again interposed itself in union affairs by
financing Afogelever's attempt to obtain court aid in a situation
which challenged the respondent's entire attitude toward the Guild.
41 See footnote 8, supra
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In April 1937 as the individual contracts of employment were about
to terminate and the matter of instituting collective bargaining with
the respondent was being discussed by the editorial employees, the
respondent made its announcement about shortening the working
week.
Consistent with its policy of opposition to the Guild and in further-
ance of its attempt to weaken the union , the respondent soon after
May 18, 1937, took active steps against the single employee who,
probably more than any other of its editorial employees , had stead-
fastly sought throughout 1936 and in 1937 to strengthen the union
as an effective instrument for advancing the employees ' economic
interests . We already have stated the nature of Fahy's activities
in the Ledger Unit and in the Guild Local , her insistence upon
aggressive trade -unionism, her participation in the proceedings
against Mogelever , and her rise to the presidency of the Local. We
have no doubt , and, we find, that once the change in handling Fahy's
specialties afforded it a ready opportunity the respondent proceeded
to relegate Fahy to unimportant assignments and enforced idleness
in the expectancy that her distaste of and unhappiness with her
condition would quickly lead to riddance of the employee whom it
had come to consider so undesirable because of her union activities
and leadership . When this strategy failed grid instead, following
May 18, Fahy rose still higher in the Guild Local and the Local
under her leadership won its first collective agreement from the
respondent and defeated Mogelever in court, the respondent then
firmly set about to discharge her. On September 22 it did so, and
through the dismissal , the clear meaning of which was stressed by
publication on that day of the Hochstein letter to Green, served a
warning upon all other editorial employees of the hazards of militant
trade-unionism . As Hochstein a year and a half previous had
remarked to an editorial employee, "Leaders in the labor movement
had to be resigned to losing their jobs and losing personal advance-
ment if they insisted on fighting for the members of their
organization."
We find that the respondent discharged Agnes Fahy on September
22, 1937 , and thereafter refused to reinstate her because she joined
and assisted the Guild and engaged in other concerted activities for
the purpose of collective bargaining and other mutual aid and pro-
tection, thereby discriminating in regard to hire and tenure of em-
ployment and discouraging membership in a labor organization; that
by said discrimination the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
NEWARK MORNING LEDGER COMPANY,, , 101;9
At the time of her discharge, Fahy's salary was $50 weekly. Sjnce
her discharge she has had no employment. She desires to be, rein-
stated to the editorial staff of the respondent. , I • -
IV. THE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection. with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
coerce and the free flow of commerce.
V. THE REMEDY
It is essential to an effectuation of the purposes and policies of
the Act that the respondent be ordered to cease and desist from the
unfair labor practices in which we have found it to have engaged,
and, in aid of such order and as a means of removing and avoiding
the consequences of such practices, that the respondent be ordered
to take certain action more particularly described below.
We have found that the respondent discharged Agnes Fahy on
September 22, 1937, because she joined and assisted the Guild and
engaged in other concerted activities for the purpose of collective
bargaining,and other mutual aid and protection, thereby discriminat-
ing in regard to hire and tenure of employment and discouraging
membership in a labor organization. We also have found that by
its discharge of Fahy, the respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act. Accordingly, we shall order the respondent to
cease and desist from engaging in such unfair labor practices. Fur-
ther to effectuate the policies of the Act we shall order the respond-
ent to offer to Agnes Fahy immediate and full reinstatement to a
position on the editorial staff of the Ledger without discrimination in
regard to the nature or amount of her work or any term or condition
of her employment because of union affiliation or activities, and with-
out prejudice to her seniority and other rights and privileges, and to
make her whole for any loss of pay she has suffered by reason of her
discharge by payment to her of a sum of money equal to that which
she normally would have earned as wages from the date of such dis-
charge to the date of the offer of reinstatement, less her net earnings 42
41 By • "net earnings" is meant nings less expenses, such as for transportation, room,
and board incurred by the employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for her un-
lawful discharge and the consequent necessity of her 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, 8 N. L. It. B. 440. Monies
1020 DECISIONS OF NATIONAL LABOR RELATION S BOARD
We shall also order other affirmative action which we consider
necessary to remedy the situation.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following:
CONOi.usIONs OF LAW
1. American Newspaper Guild and Newark Newspaper Guild are
labor organizations, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of eniploy-
ment of Agnes Fahy and thereby discouraging membership in Amer-
ican Newspaper Guild and Newark Newspaper Guild, and in the
Ledger Unit thereof, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
3. By interfering with, restraining, and coercing its employees in
their exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Newark Morning Ledger Company, Newark, New Jersey,
and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in American Newspaper Guild, in
Newark Newspaper Guild, and in the Ledger Unit thereof, or in any
other labor organization of its employees, by discriminating in
regard to hire or tenure of employment or any term or condition of
employment because of membership in or activity on behalf of any
such labor organization;
(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
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 govern-
ment or governments which supplied the funds for said work -relief projects.
NEWARK MORNING LEDGER COMPANY' 1021
concerted 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 Agnes Fahy immediate and full reinstatement to a
position on its editorial staff of the Newark Ledger without dis-
crimination in regard to the nature or amount of her work or to any
term or condition of her employment because of union affiliation or
activity, and without prejudice to her seniority and other rights and
privileges ;
(b) Make whole Agnes Fahy for any loss of pay she may have
suffered by reason of her discharge, by payment to her of a sum of
money equal to the amount which she normally would have earned
as wages from September 22, 1937, to the date of the offer of rein-
statement, less her net earnings 4, during said period; deducting,
however, from the amount otherwise due said employee, monies
received by her 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 for a period of at least
sixty (60) days from the date of posting, in conspicuous places at the
respondent's plant and offices, notices stating that the respondent will
cease and desist as provided in paragraphs 1 (a) and (b) and will
take the affirmative action set forth in paragraphs 2 (a) and (b) of
this Order; that the respondent's employees are free to become or
remain members of American Newspaper Guild, Newark Newspaper
Guild, and the Ledger Unit thereof, and that the respondent will not
discriminate against any employee because of membership or activity
in that organization ;
(d) Notify the Regional Director for the Second Region, in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
MR. WILLIAM M. LEISERSON, dissenting :
I am of the opinion that the complaint in this case should be
dismissed. After the Board's proof was presented the Trial Ex-
aminer granted a motion by the respondent to strike the allegations
of the complaint relating to the unfair labor practices within the
meaning of Section 8 (1) of the Act. This ruling was approved by
the Board, and therefore the recital of the alleged unfair labor
s See footnote 42 8u1» u
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices that occurred prior to August 12, 1937, when a collective
bargaining agreement was signed, should not be included in the
Decision. The alleged discriminatory discharge of Fahy occurred
after the agreement was signed, but it grew out of internal differences
in the union, and under the circumstances no complaint should have
been issued.