The Advertiser Co., Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1951

97 N.L.R.B. 604 (N.L.R.B. 1951)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer, the Regional Director for the Twenty-first Region shall,
pursuant to National Labor Relations Board Rules and Regulations,
within ten (10) days from the date of this Direction, open and count
the ballots of Norman Burbank, Joseph Sanchez, Bert Stuart, John
McCormick, Robert Philipp, Joseph Prulitzky, Jessie Wagner, Em-
mett Allen, Eugene Young, and Carl W. Raggio, Jr.; and thereafter
prepare and cause to be served upon the parties a supplemental tally of
ballots, including therein the count of the challenged ballots.
Order
IT IS HEREBY ORDERED that, in the event the ballots of Norman Bur-
bank, Joseph Sanchez, Bert Stuart, John McCormick, Robert Philipp,
Joseph Prulitzky, Jessie Wagner, Emmett Allen, Eugene Young, and
Carl W. Raggio, Jr., when opened and counted, do not determine the
results of the election, a hearing be held to determine whether or not
William Kennoy, whose ballot was challenged in the aforesaid election,
was a supervisor at the time of the election.
IT IS FURTHER ORDERED that, in the event a hearing is held, the hearing
officer designated for the purpose of conducting the hearing shall pre-
pare and cause to be served upon the parties a report containing resolu-
tions of the credibility of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of the said challenge. Within
ten (10) days of receipt of such report, any party may file with the
Board in Washington, D. C., an original and six copies of exceptions
thereto. Immediately upon the filing of such exceptions, the party
filing shall serve a copy thereof upon each of the other parties, and shall
file a copy with the Regional Director. If no exceptions are filed
thereto, the Board will adopt the recommendation of the hearing
officer.
IT IS FURTHER ORDERED that, in the event a hearing is held, the above-
entitled matter be, and it hereby is, referred to the said Regional
Director for the purposes of such hearing, and that the aforesaid
Regional Director be, and he hereby is, authorized to issue early notice
thereof.
THE ADVERTISER COMPANY, INC. and AMERICAN NEWSPAPER GUILD,
C.I.O. Cases Nos. 15-CA-232 and 15-CA-244. December OO,1951
Decision and Order
On February 19, 1951, Trial Examiner John Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
97 NLRB No. 9e.
THE ADVERTISER COMPANY, INC. 605
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged unfair labor
practices. Thereafter the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in the
case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications.
1. The Trial Examiner found that the Respondent unlawfully dis-
criminated against McAllister, Cumming, Brown, Calhoun, and
William Smith by giving them extra assignments without extra com-
pensation. We cannot agree. Aside from Cumming, the extra as-
signments in question involved, in the main, assisting the sports
department in handling sports scores after the discharge of Walter
Miles on December 17, 1949. The record establishes that Calhoun and
William Smith did similar work in the sports department, without
extra compensation, in the summer of 1949, before any of the Respond-
ent's employees joined the Union, and that making such extra assign-
ments for reporters without extra compensation had been the
Respondent's usual practice during the seasons of extensive sports
coverage. Further, it appears that the extra work in the sports
department was entirely routine. On the other hand, the extra edi-
torial work assigned Azbell, and the extra humorous-column produced
by Harbin, for which they received extra compensation, impress us
as items requiring more initiative and individual skill than the
compilation of box scores of baseball and basketball games.
With regard to Cumming, the record establishes that her salary
was not cut when she was demoted on December 4, 1949, from society
editor to reporter, nor was it raised when 3 weeks later she was given
the extra assignment of church editor. If the record established that
Cumming's work as church editor had required that she put in exten-
sive overtime to complete her duties, we might be disposed to find that
the extra assignment without extra compensation was discriminatory.
However, this was not the case. Indeed, in the first 34 weeks of 1950
she worked a total of only 81/2 hours overtime. Moreover, it appears
I The Respondent 's request for oral argument is denied, because the record and brief, in
our opinion , adequately present the issues and positions of the parties.
On April 27, 1951, the General Counsel moved that the brief which he filed with the Trial
Examiner be considered by the Board in support of the findings , conclusions , and recom-
mendations contained in the Intermediate Report. That motion, which was made almost
2 weeks after the final date for filing exceptions and briefs , and without showing reasonable
ground why it should be granted , is hereby denied as untimely.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Cumming's church work, unlike the extra assignments given
Azbell and Harbin, was generally routine, consisting primarily of
editing prepared material furnished the Respondent by members of
the clergy and vestry of the local churches.
In view of the foregoing, we do not believe that McAllister, Cum-
ming, Brown, Calhoun, and William Smith were discriminatorily
assigned extra work without extra compensation. We shall therefore
dismiss the complaint in this respect.
2. The Trial Examiner found that the Respondent discharged
Walter Miles on December 17, 1949, because of his membership in and
activities on behalf of the Union. We cannot agree with this finding.
Aside from the 1-year period during which Miles was on the
Respondent's payroll, neither the Advertiser nor the Journal ever
employed more than two men in their sports department. Miles was
hired in January 1949 and was notified on December 3, 1949, that he
would be discharged December 17, 1949. On the latter date the
Respondent began the consolidation of the staffs of its two newspapers,
as a necessary economic move. Further, the record establishes that
Miles had no regular newspaper experience before he was employed by
the Advertiser, and that he had considerably less seniority than any of
the other four men who were retained in the sports departments of the
two papers when they were consolidated. In these circumstances
and because it appears that the Respondent has not hired anyone to
take his place, we conclude that Miles was discharged for legitimate
economic reasons. We shall therefore dismiss the complaint insofar as
it alleges that his discharge was violative of the Act.
3. The Trial Examiner found that the Respondent refused to bar-
gain with the Union in violation of Section 8 (a) (5) of the Act. We
cannot agree, for the reasons indicated below, although Respondent's
conduct would normally, on the merits, justify that conclusion.
On November 10, 1949, the Respondent and the Union, which at all
relevant times has been affiliated with the CIO, entered into a consent-
election agreement covering the Respondent's editorial employees.
On November 30, 1949, the election was held, and the Union secured
a majority. The Board certified the Union on December 8, 1949.
Accepting the Board's certification as valid, the Trial Examiner
found that certain of the Respondent's conduct on December 4, 1949,
and thereafter constituted a refusal to bargain with the Union in
violation of Section 8 (a) (5) of the Act. In so ruling the Trial
Examiner presumably relied upon the Board's then current holding
that compliance by the CIO was not required, so long as the affiliated
labor organization seeking certification had itself complied with the
filing requirements of the Act .2 The CIO, the parent organization
2 Northern Virginia Broadcasters, Inc., 75 NLRB 11.
THE ADVERTISER COMPANY, INC. 607
of the Union herein, did not come into compliance with Section 9 (h)
of the Act until December 22, 1949, or 2 weeks after the Union was
certified.
After the Trial Examiner issued his Intermediate Report, the
Supreme Court of the United States ruled in the Highland Park case 11
that Section 9 (h) of the Act applied to the parent CIO itself as well
as to its affiliates or constituent parts. It follows therefore that the
Board's 1949 certification of the Union herein was invalid 4
After the Highland Park decision, the Congress enacted an amend-
ment to the Act,5 in part to validate such elections as in the present
case. In so doing, however, the Congress inserted the following
language in the amending statute :
Provided, That no liability shall be imposed under any provi-
sion of this Act upon any person for failure to honor any election
or certificate referred to above, prior to the effective date of this
amendment.
Recently the Board, in a case involving another CIO affiliate, held
that this proviso was a defense to a refusal-to-bargain allegation
where the employer, at the time of its refusal to bargain, took the
position that the union's certification was invalid because of the CIO's
noncompliance at the time of the representation proceeding.° In that
case, the labor organization involved made no showing, independent
of the Board's certification, that it represented a majority of the
employer's employees.
In the instant case the Union demonstrated at the unfair labor prac-
tice hearing, by signed membership cards, that it had represented a
substantial majority of the employees in the bargaining unit almost a
month before the election. Nevertheless, the Board believes that the
quoted language of the proviso precludes a finding that there was an
unlawful refusal to bargain before the amendment's effective date,
.the charging union having been certified pursuant to a Board pro-
ceeding rendered invalid under the Highland Park decision.
True, the Respondent never questioned the Union's majority status,
so there would have been no impediment to a refusal-to-bargain find-
ing, were it not for the invalidity of the Board election upon whose
results the Respondent then relied and from which this proceeding
stemmed. Yet we cannot discover in the congressional language any
license for the Board to impose "liability" in the face of its own in-
8 N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322; 71 S. Ct. 758.
See Reynolds & Manley Lumber Company, Inc ., 97 NLRB 188.
' Public Law 189, 82d Congress , 1st Sess., approved October 22 , 1951. ( Section 18 of the
Act )
' Reynolds & Manley Lumber Company, Inc, supra.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valid certification, even though Union's majority status at the time
of the alleged refusal to bargain could now be proved independently
of that certification.
In view of the foregoing, and without looking further into the
merits of the refusal-to-bargain allegation, we are compelled to reverse
the Trial Examiner's finding that the Respondent's conduct consti-
tuted a violation of Section 8 (a) (5) of the Act. Accordingly we
-shall dismiss that allegation of the complaint. I
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Advertiser
Company, Inc., Montgomery, Alabama, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Newspaper Guild,
C. I. 0., or any other labor organization of its employees, by dis-
criminatorily demoting any of them to less desirable positions, by
discriminatorily changing their hours of work, or by discriminating
in any other manner in regard to their hire or tenure of employment
or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in collective bargaining or
other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Rhea Cumming immediate and full reinstatement to
her former position as society editor or to a substantially equivalent
position, without prejudice to her seniority or other rights and priv-
ileges.
(b) Post at its plant in Montgomery, Alabama, copies of the notice
attached hereto as Appendix A. Copies of such notice, to be fur-
nished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and
maintained in conspicuous places, including all places where notices
THE ADVERTISER COMPANY, INC. 609
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material?
(c) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
IT IS YURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent: (a) violated
Section 8 (a) (3) of the Act by assigning extra work without extra
compensation to McAllister, Brown, Calhoun, Cumming, and William
Smith; (b) violated Section 8 (a) (3) of the Act by discharging and
thereafter refusing to reinstate Walter Miles; and (c) violated Sec-
tion 8 (a) (5) of the Act by refusing to bargain collectively with the
Union.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in AMERICAN NEWSPAPER
GUILD, C. I. 0., or any other labor organization, by discrimi-
natorily demoting any employee to a less desirable position, or by
discriminatorily changing the hours of work of any employee, or
by discriminating in any other manner in regard to his hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist AMERICAN
NEWSPAPER GUILD, C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by the Act.
* In the event this Order is enforced by a United States Court of Appeals , there shall be
inserted before the words "A Decision and Order," the words , "A Decree of the United
States Court of Appeals Enforcing."
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE wn,T. offer to Rhea Cumming immediate and full reinstate-
ment to her former position as society editor, or a substantially
equivalent position.
THE ADVERTISER COMPANY, INC.,
Employer.
By --------------------------------
(Representative ) (Title)
Dated ---------------------
This notice must remain posted for sixty ( 60) days from the date
hereof , and must not be, altered , defaced, or covered by any other
material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by American Newspaper Guild, C. I. 0., herein called
the Union, the General Counsel of the National Labor Relations Board, called
herein, respectively, the General Counsel and the Board, by the Regional Director
for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated
August 11, 1950, against The Advertiser Company, Inc., herein called the Re-
spondent, alleging that the Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of Section 8 (a) (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the complaint and
charges, together with notice of hearing thereon, were duly served on all the
parties.
With respect to the unfair labor practices, the complaint alleged (1) that the
Respondent violated Section 8 (a) (3) of the Act by discharging Gerald J. Mc-
Allister, Foster A. Haley, Clinton G. McCarty, Luman N. Wells, William H.
McDonald, Nancy W. McDonald, Rhea Cumming, and Walter Miles, and by dis-
criminating against certain employees by increasing customary hours of work,
transferring employees to less desirable positions and hours of work, demoting
employees from their former positions, withdrawing duties for which employees
had received extra compensation, and abolishing jobs; (2) that the Respondent
violated Section 8 (a) (1) of the Act by certain acts of interference, restraint,
and coercion; (3) that at all times since November 30, 1949, the Union repre-
sented a majority of employees in an appropriate unit; and (4) that the Re-
spondent since on or about November 30, 1949, violated Section 8 (a) (5) of
the Act by refusing to bargain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit and by unilaterally increasing
wages and changing hours and conditions of employment in derogation of the
Union's representative status.
The Respondent thereafter filed an answer denying the commission of the
alleged unfair labor practices.
Pursuant to notice, a hearing was held at Montgomery, Alabama, from Sep-
tember 12 to September 23, 1950, inclusive, before the undersigned Trial Ex-
aminer. The General Counsel and the Respondent were represented by counsel,
and the Union by its representative. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the beginning of the hearing the Respondent made
motions to dismiss the complaint and to strike certain allegations of the com-
THE AbVERTISER COMPANY, INC. 611
plaint. The motions were denied . The Respondent renewed its motions to
dismiss and to strike at the close of the General Counsel's.case, and at the close
of the whole case. The motions were denied . The Respondent also moved to
"strike from the complaint and from the bill of particulars the names of those
persons as to whom no proof has been introduced ." Ruling was reserved on the
motion. It is disposed of as hereinafter indicated. The General Counsel moved
to conform the record to the proof , as to names, dates , and other minor variances.
The motion was granted without objection.
The parties waived their right to present oral argument at the conclusion of
the case. However, the General Counsel and the Respondent have filed briefs
with the Trial Examiner. Since the hearing the General Counsel has filed with
the Trial Examiner a motion "to amend complaint and introduce additional
evidence." The motion, dated November 15, 1950, is supported by a "certificate
of service" and a stipulation signed by counsel for the General Counsel and the
Respondent. The motion to amend the complaint is hereby granted. The mo-
tion, the certificate, and the stipulation are received in evidence as Trial Exam-
iner's Exhibits Nos. la, 1b , and 1c, respectively.
Upon the entire record in the case and from observation of the witnesses, I
make the following:
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under and existing by virtue of the
laws of the State of Alabama, with its principal office and place of business located
in Montgomery, Alabama. The Respondent is engaged in the publishing of a
daily morning newspaper, the Advertiser, a daily afternoon newspaper, the
Journal, and a Sunday newspaper, The Advertiser-Journal.
Respondent, in the course and conduct of its business operations during the
calendar year 1949, which period is representative of all times material herein,
sold and distributed The Advertiser-Journal with a circulation of 74,400 copies
per day, of which circulation approximately 740 copies, or a total of 1 percent,
was distributed in States outside the State of Alabama. During the same period
Respondent's newspapers carried news releases originated by the Associated
Press in the amount of $35,616, and by the United Press in the amount of $6,287;
carried advertising of national organizations in the approximate amount of
$378,000; purchased newsprint of a value of $515,405; purchased ink of the value
of $10,234; purchased metal of the value of $2,400; and purchased comic and
feature sections of the value of $57,208; approximately 90 percent of which were
purchased and were received from States outside the State of Alabama.
It is found that the Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Newspaper Guild, C. I. 0., is a labor organization which admits to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background ; sequence of events
The Union began organizing the Respondent's editorial and news department
employees shortly before October 30 , 1949. The first meeting of the Union was
held on October 30 at the apartment of Rhea Cumming , society editor of the
Journal . About 20 employees were present at the meeting , including Cumming,
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerald McAllister, Foster Haley, Clinton McCarty, Luman Wells, William
McDonald, and Nancy 'McDonald. During the meeting, all of the employees who
were present joined the Union and officers were elected. On November 5 the
Respondent discharged the above-named seven employees because of their mem-
bership in and activities on behalf of the Union. The Union filed an unfair labor
practice charge with the Board on November 8 and an amended charge on
November 10.
Following investigation of the charges by Mr. George Slyer, a field examiner
of the Board, the Union and the Respondent executed a settlement agreement
on November 10, in which the Respondent agreed to reinstate the seven employees
named above. The agreement was approved by the Board's Regional Director
on November 14. The Respondent and the Union also entered into an agreement
for a consent election to be conducted by the Board among the employees on
November 30. Mr. R. F. Hudson, Sr., president of the Respondent, and Mr. R. F.
Hudson, Jr., vice president of the Respondent, represented the Respondent during
negotiations for the above agreements. During one of their conferences with
Slyer, Hudson, Sr., stated that there was a 48-hour workweek in the news room
of the Advertiser ; that in the past there had been some lax administration, since
a number of employees worked a full 8 hours and others did not ; and that since
the Respondent paid for 48 hours of work, it was going "to arrange precise
schedules [of working time based on a 48-hour week] for every one in the depart-
ment and insist that they be followed." Slyer replied, "That is perfectly your
right to do so. If it is your habit and custom to pay for forty-eight hours, it is
your perfect right to require forty-eight hours of work; but understand this,
Mr. Hudson, it must be done to everyone, impartially, not just selectively."
Pursuant to the settlement agreement, on November 11 the Respondent rein-
stated the seven employees who had been discharged. On that same day the
Respondent changed the working hours of five of the seven employees reinstated,
so that the actual hours of work were increased for some of them who previously
had not been required to work a full day of 8 hours and others were required
to work split shifts.' By letter to the Respondent, dated November 14, 1949,
W. A. Copeland, international representative of the Union, protested the changes
in working hours. The Respondent did not reply to the Union's letter. How-
ever, the Respondent sent the Board the following letter dated November 16,
1949:
We received today via registered mail a letter from Mr. W. A. Copeland who
signs as International Representative American Newspaper Guild, and on
this letter he makes notation that carbon copy mailed to you. This letter
was dated November 14th, and he makes certain complaints therein.
The writer has interviewed each of the seven employees mentioned and
they deny making any direct charge as outlined in his letter, and with the
exception of one of the seven, whom we have not been able to interview,
they have indicated their acceptance of the hours assigned them and made
the definite statement that they were not substantially different from those
prevailing previous to the original discharge.
We are not answering Mr. Copeland's letter, preferring to give you a
statement of facts which, of course, your field examiner, Mr. Slyer can
verify on his trip to this city when the election is held, or the appropriate
unit discussed.
1 The hours of work were changed for Haley, McCarty, Cumming, William McDonald, and
Nancy McDonald. This change in hours will be discussed more fully hereinafter.
THE ADVERTISER COMPANY, INC. 613
In accordance with the agreement, an election was conducted by the Board
on November 30. Approximately 35 employees were eligible to vote. Of this
number, 20 voted for the Union and 14 against it. The Board certified the
Union as the exclusive bargaining representative of the employees on December
8, 1949.2
During December McAllister and Cumming were demoted or transferred to
less desirable jobs. Walter Miles, Jr., an adherent of the Union and a reporter
in the sports department of the Advertiser, was discharged on December 17,
having received notice thereof on December 3.
On December 16 the Union sent a proposed contract to the Respondent. The
first bargaining conference between the Respondent and the Union took place
on December 28, 1949. On January 3, 1950, the Union filed another unfair labor
practice charge with the Board. Between January 5 and June 27, 1950, inclusive,
13 other bargaining conferences were held. The Respondent and the Union
were unable to reach an agreement.
B. The discharges on November 5, 1949
At the hearing the Respondent stipulated that McAllister, Haley, McCarty,
Wells, Cumming, William McDonald and his wife, Nancy McDonald, were dis-
criminatorily discharged on November 5, 1949. However, the Respondent pleads
the settlement agreement of November 10, 1949, as a defense ; and contends, in
substance, that the General Counsel is estopped by reason thereof from proving
the violations. In this connection the Respondent moved at the hearing to
dismiss and to strike the pertinent allegations of the complaint. As related
above, the motions were denied.
It is undisputed that the seven above employees were reinstated to their jobs
and thereafter were not discharged discriminatorily. The General Counsel con-
tends that the settlement agreement does not constitute a defense by reason
of unfair labor practices committed by the Respondent on and after November
11, 1949. He urges that the Trial Examiner and the Board can go behind the
settlement agreement and find violations of the Act in this respect, as though
the issues were presented de novo. Under the circumstances of the case, and
especially in view of the unfair labor practices hereinafter found, I believe that
the facts concerning the discharges of the seven above employees should be
found and considered as background evidence.' However, the General Counsel's
contention that the discharges should be found to be separate and distinct viola-
tions of the Act is rejected. In my opinion, such a finding is not warranted
and would not serve to effectuate the purposes of the Act. Accordingly, it will
be recommended that the complaint be dismissed with respect to the discharges
on November 5, 1949.
C. Changes in hours of work on and after November 11, 1949
As related above, McAllister , Haley, McCarty, William and Nancy McDonald,
Cumming, and Wells were reinstated by the Respondent on November 11, 1949.
On that same day, Haley was told by William Mahoney, Sr., Respondent's
managing editor , that he was "rehired without prejudice" but that he would
work a "split shift." Before his discharge on November 5, Haley's hours had
been from 10 a. in . to 6: 30 p. in., with a half hour off for lunch . His new hours
were from 10: 30 a. in. to noon , off until 2: 30 p. in., on duty until 6 p. m., off
until 7 p. in., and then on duty until 10 p. in ., or 8 hours of work within 11%
2 The Advertiser Company, Case No. 15-RC-333.
8 The Wallace Corp. V. N. L. R. B., 323 U. S. 248.
986209-52-vol. 97-40
614 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
hours. Except for his hours his job remained the same. On November 12 his
hours were changed again to the following schedule : 10 a. in. to 1 P. in., off
until 3 p. in., and then on duty_ until 8:30 p. in., with an unspecified half hour
period for lunch. On about Novemmber 14, Haley's hours were further changed
as follows : 10 a. in. to noon, off until 2 p. in., work until 5 p. in., off until 5: 45
p. in., and then on duty until 8: 45 p. in., or 8 hours of work within 10% hours.`
William McDonald also was required to work a split shift when he was
reinstated. Before November 5 he worked from 10 a. in. until 7 p. in. with an
hour off for lunch. Under the changed schedule he worked 8 hours within
111/2 hours, starting at 10 a. in. and lasting until 9: 30 p. m'
Before their discharge on November 5, McCarty, Cumming, and Nancy
McDonald worked less than 8 hours per day. However, McCarty and Cumming
were paid for 48 hours, and McDonald for 46. When they were reinstated on
November 11, their hours of work were increased so that they thereafter were
required to work the full number of hours for which they were paid. For
example, before November 5 Cumming's hours were from 8 a. in. until 1: 30
p. in., Monday through Friday, and from 8 a. in. until about 10 a. in. on Satur-
day. After reinstatement she was required to work from 7 a. in. until 3: 30
p. in., with a half hour off for lunch, or a total of 48 hours for a 6-day week.
It appears that these employees when first hired were instructed to fill out
their time cards for 48 hours, or 46 hours in the case of McDonald, but that
they were only required to work until the "deadline" or until their work was
finished. When McCarty was hired, he was instructed to this effect by E. A.
Shelnutt, a city editor at the time."
On November 16 the seven employees who had been discharged on November
5 were called one at a time to the office of Hudson, Sr. In addition to Hudson,
Sr., Hudson, Jr., Mahoney, Shelnutt, and A. F. Mahan, Jr., assistant managing
editor of the Advertiser, were present! In substance, Hudson, Sr., told each
,employee that there had been a complaint about his or her hours and asked
them to sign statements which showed their hours before and after reinstate-
ment and contained a short statement to the effect that the hours were "satis-
factory" or "as agreed." All of the employees signed such statements. Haley,
however, did not sign one until on about November 18 and after he had con-
sulted an attorney.' Hudson, Sr., asked Cumming, Nancy McDonald, and
Haley if they had instigated or filed complaints or charges of discrimination
with respect to the hour changes.
It is found that such interrogation by Hudson, Sr., of Cumming, McDonald,
and Haley constitutes interference, restraint, and coercion.
4 It appears that Haley's hours were changed again on November 18 so that he worked
8 hours in a 91/2-hour period, or from 11 a. in. until 8: 30 p. in.
5 McDonald's hours were changed again about the middle of December so that he worked
8 hours within a 9-hour period, or from 8 a. in. to 5 p. in. with an hour for lunch.
8 At all other times mentioned herein Shelnutt was assistant managing editor of the
Journal.
I It appears that Shelnutt and Mahan were present only when employees from their
respective papers were present.
8 There is a conflict in the evidence as to whether or not Haley was present in the
office of Hudson, Sr., on November 16. Haley and Mahan testified that he was present.
Hudson, Sr., and Hudson, Jr., testified otherwise. I credit the testimony of Haley and
Mahan in this respect. Haley testified that he could not remember if he consulted an
attorney before or after being called to the office of Hudson, Sr., and that if the latter
was the case , he asked for a delay during the November 16 meeting and did not sign the
statement until later Haley's signed statement was received in evidence . It refers to
hours which were assigned to him on November 18. In my opinion, it does not serve to
discredit Haley ' s testimony in this connection, including his testimony concerning the
schedule of hours assigned him on and after November 11.
THE ADVERTISER COMPANY, INC. 615
It is also found that the Respondent discriminated against Haley and Wil-
liam McDonald within the meaning of Section 8 (a) (3) of the Act by assign-
ing them split shifts on and after November 11. There is no evidence in the
case that any other employees were assigned split shifts at that time. Hudson,
Jr., testified that Joe Azbell (a reporter on the Advertiser and a known anti-
union employee) was assigned hours that "took him just about as long to com-
plete his eight-hour trick" as Haley. However, Azbell, a witness called by the
Respondent, testified to the effect that before November 1 he worked 8 hours
within a 10-hour period and that at some time before November 30 his hours
were changed so that he was able to complete 8 hours of work within an 81/2-
liour period. The Respondent points out in its brief that the General Counsel
bad the burden of proving that the hour changes were discriminatory. In this
connection Respondent states, "a showing must be made that members of, or
those interested in, union activities or organization have received prejudicial
treatment. Where in this record is there such proof!" Taking into considera-
tion the fact that McDonald and Haley were discharged discriminatorily, I
believe that the General Counsel made out a prima facie case by proving that
their hours were changed immediately upon their reinstatement. Moreover,
there is some evidence in the case which tends to show that McDonald and
Haley were the only employees who were assigned split shifts on or about
November 11. Concerning the reason for the hour changes, Hudson , Jr., testi-
fied to the effect that the staffs of the two newspapers were consolidated for
economic reasons and that such a program had been under consideration since
about August 1949. However, the evidence conclusively shows that consolida-
tion of the staffs did not take place until after the middle of December and
indicates that the hours of the other employees affected were not changed until
about that time.
It is further found that the Respondent by increasing the hours of actual work
of McCarty, Cumming, and Nancy McDonald on November 11, 1949, discriminated
against them within the meaning of Section 8 (a) (3) of the Act. The evidence
conclusively shows that the hours set up on the Respondent's payroll records, 48
for both McCarty and Cumming and 46 for McDonald, were fictions. Actually,
before November 5 they were required to work considerably less hours per week.
For example, Cumming worked about 30 hours per week. The record indicates
that if and when they were required to work past their normal or customary
hours, they were not paid anything additional, unless their hours of work ex-
ceeded the hours for which they were paid ; and that such employees were sup-
posed to use the difference in time between the hours actually worked at the
Respondent's establishment and those paid for on specific assignments and in
working upon or obtaining material for at least one feature each week. There is
no definite evidence in this connection. From all the evidence and the record
as a whole, I believe that the Respondent did not require more actual hours of
work from these employees in view of the low salaries paid to them, and that
the Respondent set up the fictitious hours on its payroll records in order to com-
ply with the requirements of the Fair Labor Standards Act when rare emergen-
cies required such employees to work in excess of 40 hours per week. I am
unable to find any other reasonable conclusion for the practice. The testimony
of Hudson, Jr., concerning increased hours of work is vague. He testified to
the effect that on or about November 16, or perhaps before, each employee who
previously had not been "accustomed" to working a full day of 8 hours "was
assigned a full 8-hour day'and definite hours to be there were assigned." In
this connection he mentioned the names of Phyllis Kraus, society editor of the
Advertiser, and "her assistant." The record reveals that the assistant to Kraus
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was Nancy McDonald and that Kraus signed a membership card of the Union
on November 2.8 The hours of William O. Smith, Jr., Keith Ozmore, Hugh Mor-
ris, and Jessie MacGuire Brayles were increased in a like manner. However,
Smith's and Ozmore's hours were not increased until sometime after November
11, and those of Morris and Broyles until sometime during December or when
consolidation of the staffs took place. These four employees also were adherents
of the Union. The record does not disclose any other hour increases. There-
fore, it appears that McCarty, Cumming, and Nancy McDonald were the only
employees whose hours were increased on November 11, the date of their rein-
statement after being discriminatorily discharged.
D. Interference, restraint, and coercion
1. Robert Hugger and Max Moseley
The complaint, as amended, alleges that city and sports editors are super-
visory employees.10 From the pleadings, the evidence, and the Respondent's
brief, the Respondent's contentions in this respect are not clear. It appears that
Respondent has taken a negative position, leaving the General Counsel to his
proof. From all the evidence I find that city editors and sports editors are
supervisory employees within the meaning of the Act. The record discloses that
they assigned the work and hours to employees under them ; that they had the
authority to reprimand employees and to release them from work for personal
reasons ; and that they had the power to hire or recommend the hiring of em-
ployees. Foster Haley and William Smith, Jr., testified without contradiction
that they were hired by Robert Hugger, city editor for the Advertiser. The
testimony of both Walter Miles, Jr., and Max Moseley, sports editor for the
Advertiser, discloses that Miles was hired upon the recommendation of Moseley.
Witnesses for the General Counsel testified credibly that both Hugger and
Moseley interrogated them or made certain statements which ordinarily would
constitute interference, restraint, and coercion. However, in my opinion, the
equities in the case favor the Respondent in this connection. The unit agreed
upon by the Union and the Respondent for the consent election included city and
sports editors. The evidence indicates that all of such employees voted in the
election. Moseley was solicited by some of the employees to join the Union ; and
Sam Adams, sports editor of the Journal, attended at least one of the union
meetings. Accordingly, I do not find that the statements made by Hugger and
Moseley were violative of Section 8 (a) (1). Certain of Moseley's statements,
however, will be related and considered hereinafter in connection with other
issues.
0 The evidence indicates that at some time shortly after the above date Kraus became
an antiunion employee and that Hudson had an informant who kept him advised concern-
ing union activities.
10 Originally the complaint did not allege specifically that city editors were supervisory
employees , excepting that the unit alleged to be appropriate excluded "other supervisors
as defined in the Act." At the hearing the General Counsel moved to amend the complaint
so as to exclude city editors from the unit. The motion was granted . The Respondent's
answer admitted the appropriateness of the unit . The Respondent , however, moved to
strike part of its answer . The motion , in effect , amended the answer so as to deny the
appropriateness of the unit . The motion was granted . As amended , the answer avers
that the unit, which was agreed upon for the consent election and which included city
and sports editors, was not appropriate "because the inclusions of said unit embraced
supervisory employees as defined in the Labor Management Relations Act, 1947." The
answer did not specify which supervisory employees had been included in the unit.
THE ADVERTISER COMPANY , INC . 617
2. E. A. Shelnutt
As related above, the first meeting of the Union was held at Cumming's apart-
ment on October 30, 1949. On about November 2, employees Clinton McCarty,
Keith Ozmore , and Edward Mohr went to lunch with Burns Bennett and Shelnutt,
city editor and assistant managing editor of the Journal , respectively . Although
Bennett and S'helnutt sat at a separate table, it was only about 18 inches away
from that of the three employees . Speaking ostensibly to Bennett but so that
the employees could hear, Shelnutt remarked , "I am afraid the boys have started
something that is going to get them in trouble ." At the same time he asked
Bennett if the employees had "contacted union representatives ." It is found
that Shelnutt was referring to the union activities of the employees and that his
statement constitutes interference , restraint , and coercion.
On November 5 Shelnutt Said to employee Hugh Morris , "Hugh , I hope you are
not mixed up in this mess . . . I am surprised at Clint McCarty ." Morris made
a noncommittal answer. As related above, McCarty and six other employees
were discharged discriminatorily on November 5. It is found that Shelnutt was
referring to the Union in his statement and that such interrogation constitutes
interference.
Concerning a conversation with Shelnutt on November 6, Jessie MacGuire
Broyles testified credibly as follows :
Mr. Shelnutt-I didn't know that the people had been fired. They had
been fired the night before, I think, and that morning , and I didn 't know it,
and he said , "You didn 't have anything to do with this that is going on up
here, did you?" This is to the best of my knowledge ; I am not, certainly
not quoting exactly. And I said "With what?" And he said "You know
that seven people had been fired ?" And I said "No, I didn't." And he named
several of the people . He named Clint and Foster and Bill and Nancy, I
think, are the ones he named , Rhea, and I said that I didn't know, and he
said "Well, I understand there has been a lot of union talk around here."
He said "I don't know too much about it, but I just want to know if you
had anything to do with it." And I believe I just more or less evaded the
question . I just walked on at the time.
It is found that the above interrogation of Broyles by Shelnutt constitutes
interference.
On about November 13 McCarty was talking to Ruth Ohannell , an employee
in the Respondent 's advertising department . Shelnutt walked over to them and
asked McCarty if he had anything to do. When McCarty answered that he
was not busy at the time , Shelnutt said , "Well , get over to your desk and sit
down and stay there ." Shelnutt then stated to employee Jerry Carter that the
prounion employees were trying "to get the union started downstairs [in the
advertising department ]." The above action of Shelnutt is found to be violative
of Section 8 (a) (1) of the Act. The Respondent did not have any rule against
talking or union solicitations . In fact, the record reveals that Joe Azbell solicited
employees during working hours to sign a decertification petition , and such
solicitation took place in the presence of at least three supervisors . Under all
of the circumstances it is clear that Shelnutt's treatment of McCarty was dis-
criminatory.
On about November 20, Shelnutt had a conversation with employee Edward
Brown . Concerning this conversation , Brown testified credibly and without
contradiction as follows :
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well , Mr. Shelnutt came up to me and said , "Ed, you weren 't mixed up
in this union business , were you?"
I said , "Yes."
He stopped a minute and said, "Well , which side are you on?"
I said, "I am with the boys on this."
He said, "You mean the union?"
I said, "Yes."
He stopped for a minute and coughed and said, "What do you expect to get
out of this?"
I said , "Well , I hope to get five days a week out of it, a five-day week."
He said , "It will be a long, long time before you get a five-day week out of
the old man [Hudson, Sr.]."
It is found that the above interrogation of Brown by Shelnutt constitutes
interference , restraint , and coercion.
At about 2 : 30 p. in. on November 25, Shelnutt told employee Keith Ozmore to
take off the rest of the day. Shelnutt then said, "Ozzie, I just want to tip you
off. Starting . . . next Thursday , I am going to be the toughest s- of b- you
ever had to work for . . . It is nothing personal , you understand , but they asked
for union treatment and they are going to get union treatment" As related
above, the election was held on November 30, a Wednesday . It is found that
Shelnutt's remarks contain a threat of - reprisal and accordingly constitute
interference.
Ozmore attended a union meeting on Sunday , November 27. Sam Adams,
sports editor of the Journal , also was present . During the meeting Ozmore
stated, in substance , that Shelnutt had told some employees that he (Ozmore)
was against the Union , and that he had not made any such statement to Shelnutt.
At about 2 : 30 p. in. on November 29, Ozmore asked Shelnutt if he could leave
work early in order to see his daughter 's teacher . Shelnutt replied, "G- d-
it, Ozzie, I ain't got no authority to let you off early . . . you all asked for
union treatment and you are going to get union treatment ." This remark of
She]nutt is found to be interference.
Concerning a conversation with Shelnutt on about November 29, Broyles was
questioned and testified credibly as follows :
Q. Will you tell us what was said between you and Mr . Shelnutt at that
time?
.
A. Well, it was a long conversation.
Q. Well, tell us, as best you can recall, what went on.
A. Well, the main idea, I called him in there to tell him that at the
Guild meeting some people had said some things about him , but we held
nothing against him. It was more or less to straighten out anything, if he
had heard that I had said anything about him , and he started talking about
the Guild , and the chief thing he said was that it was started by a bunch
of drunkards , and they would never get a job with any other newspaper in
the United States, and that there weren't many Guilds, newspaper Guilds
in the United States, but they were just-hs far as newspaper reporting
was concerned , they were dead ducks. That is the-
Q. Those seven people?
A. That is the general impression , that is the idea he got across, and
that I was a fool for being tricked by them or something.
It is found that the above statements of Shelnutt to Broyles contain a threat
of reprisal and therefore constitute interference.
THE ADVERTISER COMPANY, INC . 619
Broyles testified credibly concerning another incident involving Shelnutt on
about December 1. She was questioned and testified in this connection as
follows :
Q. Now, will you tell us about this conversation on or about December
1, 1949, with Mr. Shelnutt?
A. The day after the election?
Q. Yes.
A. I was standing over by Jerry Me-Allister' s desk talking to him about
the church page. Both of us worked on the church page and we were
discussing what we were going to write for Saturday.
Jerry said something and I laughed. Mr. Shelnutt hollered. It was
around 2: 30 in the afternoon . It was really after the paper had gone to
press.
Trial Examiner EADIE. After the paper had gone to press?
The WITNESS. Yes . The work had been done on the paper.
He said, "Jessie , come," he hollered . He really hollered at me. "Jessie
come over here and sit down and go to work."
It kind of startled me and I went over to him and I said , "Mr. Shelnutt,
am I to understand that I am not supposed to talk to people in the office?"
He said, "I told you that this was going to be a business office and you
are supposed to work like it is a business office."
I said, "I understand that and I want to cooperate with you. All I want
to know is if you want me to talk to people in the office or not."
He said, "You folks asked for union treatment and you are going to get it."
I walked away and left.
The above actions and statements of Shelnutt are found to be violative of
Section 8 (a) (1) of the Act.
3. The decertification petition
At some time about May 1950, Joe Azbell, a reporter for the Advertiser, con-
sulted with Morris Burkett, a Montgomery attorney, concerning the possibility of
having the Union decertified as the collective bargaining agent of the Respondent's
employees. Thereafter and until about July 1950, Azbell solicited the Respond-
ent's employees during working hours to sign a decertification petition which had
been prepared by Burkett. The petition was signed by 15 employees, including
the city and sports editors of both newspapers. On or about July 10, Carl E.
Watson, Burkett's law partner, went to the Respondent's offices on some 2 or 3
occasions in order to obtain acknowledgements of the signatures of the employees
who had signed the petition. He went to the desks or places of work of the
employees involved for this purpose, and in some instances he was accompanied by
Azbell who introduced him to the employees
Azbell solicited several employees to sign the petition while supervisory em-
ployees were present. He asked Jessie Broyles to sign while Jerry Carter, city
editor of the Journal at the time, and Shelnutt were present. Azbell also
solicited Walter Moseley, assistant sports editor of the Advertiser, while Max
Moseley was present. Azbell told several of the employees whom he solicited
that he, Atticus Mullin, and Max Moseley had instigated the petition "
The General Counsel in his brief concedes that the proof fails to show that the
Respondent conceived or instigated the petition. I agree. Atticus Mullin, a
11 William Calhoun, Jr, and Hugh Morris testified credibly to the above statement of
Azbell. Azbell denied that he mentioned Moseley in this connection . His denial is not
credited as he did not impress the undersigned as a reliable or credible witness.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
columnist for the Advertiser, testified credibly to the effect that he first suggested
decertification of the Union to Azbell and that he (Mullin) had not talked about
it with Max Moseley or any other supervisor or official of the Respondent.
Azbell's statements to employees concerning Moseley's connection with the peti-
tion are insufficient, standing alone, to warrant a finding that Azbell acted as the
Respondent's agent or that the Respondent instigated the petition"
The General Counsel contends that the facts show a violation of the Act because
the Respondent allowed a known antiunion employee to pass the petition around
and have it notarized during working hours, and allowed "supervisors to watch
and condone while it was being passed around." This contention is rejected.
The Respondent did not have any rule against such employee activities during
working hours. The evidence indicates that the union adherents also engaged
in activities on behalf of the Union during working hours ; and that the Respond-
ent did not attempt to restrict such activity, except in the one isolated instance
involving Shelnutt and McCarty, related above. In my opinion, while Shelnutt's
action was discriminatory, it is not sufficient to ascribe an illegal course of
conduct to the Respondent. Accordingly, I find that the General Counsel failed
to prove by substantial evidence any violations of the Act by the Respondent in
connection with the petition.
E. The transfer of employees to less desirable positions
1. Keith Ozmore
Ozmore began his employment with Respondent in September 1946, as State
editor for the Advertiser. He was promoted to telegraph editor for the Adver-
tiser, and his hours on this job were from 4 p. in. to 2 a. in. In April 1949, Ozmore
had a nervous breakdown. At his doctor's suggestion, the Respondent changed
Ozniore to a day job. He was made a copy reader on the Journal with hours
from 7 a. m. to 2:30 p. m. with one-half hour for lunch. Although his new job
was not as important as his former job, and under the Respondent's scale paid
less money, Ozmore's pay was not decreased.
Ozmore joined the Union at a meeting on October 30, 1949. As related above,
he attended another meeting of the Union on November 27. At that meeting
he denied statements emanating from Shelnutt to the effect that he (Ozmore)
was against the Union. Sam Adams, sports editor of the Journal, also was pres-
ent at the meeting. As found above, before and after the meeting of November
27, Ozmore had conversations with Shelnutt during which the latter made threats
of reprisal.
On about November 29, Luman Wells, telegraph editor for the Advertiser
at the time, was discharged for cause. Shortly thereafter Mahoney called
Oznlore into his office and inquired about his health. Ozmore replied that it was
"pretty good." Mahoney then told him that since he had the most experience
on the telegraph desk, he was being transferred back to his old job ; and that if
the job was too hard on him, he (Mahoney) would try to "work something out."
Ozmore did not make any protest to Mahoney at the time. As telegraph editor,
Ozmore's hours on this job at first were from 4 p. in. until 12: 30 a. m. About
4 or 5 days after the transfer, his hours were changed so as to omit overtime
work. Under the changed schedule he worked from 5 p. in. until 2 a. in. with 1
hour for lunch.
I do not find that Ozmore's transfer during December 1949 was discriminatory.
The job was vacant after Wells' discharge; and Ozmore was receiving $80 per
week at the time, or pay commensurate with that of telegraph operator for the
12 Moseley denied any connection with the petition other than signing it.
THE ADVERTISER COMPANY, INC. 621
Advertiser . The evidence discloses that the Respondent's scale of pay for copy
reader ranged from $45 to $55 at that time. Moreover , the transfer was not
made until about 7 months after Ozmore's illness, and it is undisputed that
Mahoney first inquired about his health.
2. Gerald McAllister
McAllister was hired by the Respondent in August 1948 as State editor for the
Advertiser . He was elected president of the Union at the meeting held on
October 30, 1949. As related above, he was one of the seven employees discharged
on November 5, and was reinstated by the Respondent on November 11.
McAllister also was one of the seven employees called to the office of Hudson, Sr.,
on November 16, although his hours had not been changed.
As related above, Ozmore was transferred from the copy desk of the Journal
to the job of telegraph editor of the Advertiser shortly after the discharge of
Wells. On about December 12, McAllister was called to Mahoney 's office.
Mahoney told him that on December 14 he would be transferred to the copy
desk of the Journal. McAllister protested the transfer by stating that he pre-
ferred his job as State editor of the Advertiser and that "being kicked over
to the Journal on a copy desk wasn 't in line with what I would like to do."
Mahoney replied , "We have to balance the desks. We have to equalize them,
and that is necessary ." McAllister 's salary of $75 per week was not reduced in
the transfer.
At or about the same time as McAllister 's transfer , Burns Bennett was trans-
ferred from Journal city editor to Advertiser State editor , a job desired by
Bennett ; and Jerry Carter was transferred from Journal telegraph editor to
Journal city editor , a promotion with an increase of $8 per-week . The evidence
discloses that neither Bennett nor Carter were members of the Union. On or
about April 1, 1950 , Edward Mohr was transferred from the Journal copy desk
to the position of Journal telegraph editor with a pay increase of about $10
per week . Mohr did not attend the union meeting on October 30 , but signed a
union membership card on or about that date. At some undisclosed tine shortly
thereafter he renounced the Union and made his position clear to other employees.
Bennett resigned from the position as Advertiser State editor on February
11, 1950, and McAllister was reinstated to his old job on or about that date.
As State editor , McAllister 's hours were from 2 until 11 p. in. On the
Journal copy desk his hours were from 6 a. m. until 2 p. in.
Concerning the difference between the two jobs, McAllister was questioned
and testified as follows :
Q. (By Mr . Carter ) Is there a difference in being copy desk man, and
state editor?
A. Yes sir.
Q. Will you please tell us the difference?
A. As state editor you are required to make decisions on how you display
your story. You also acquire news, direct coverage of the news, through
state correspondence . You have a certain administrative quality to your
work as state editor . However, on the copy desk of the Journal, it's
almost a robot job ; you get up , tear copy off the machines , give it to the
assistant managing editor of the Journal , he throws a piece to you, you
put that head on it , hand it back to him, he approves your work-some-
thing that wasn't done as state editor-approves your work and it goes to
the composer . It requires absolutely no thinking whatever ; you bring it
from the wire room , put a head on it.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Are you freer to exercise your own ingenuity as state editor, than
you are as copy desk man?
A. Oh, absolutely.
Q. Does it take a more able newspaper man to be state editor than to
be copy desk man?
A I think that 's very obvious.
Q. Would you consider going from state editor to copy desk, a demotion?
A. I certainly do consider it a demotion.
Hudson, Jr ., testified to the effect that Burns Bennett "had always wanted to
have a writing job of some sort on the Advertiser . . . to be perhaps state editor."
Concerning his reasons for McAllister 's transfer , Hudson, Jr., testified as follows :
I must say right here, I did not make any great explanation to Mr. McAl-
lister about his change . I did not think at the time it was right to Burns
or to Mr. Shelnutt to say anything about it. I must give you my reasoning :
Mr. McAllister had handled the state desk, and he writes a bit , but he is
not the state editor I have always wanted . Now, I must point this up-I
hate to bring it up in the record again-but Mr. McAllister happens to be
what is commonly known as an overtime hog. He will seek every means
possible of adding to his time to increase his pay. I have no objection to
a person wanting more pay, but I think he ought to get it on the basis of just
a straight raise, and of course if they are forced to work overtime , go ahead.
Mr. McAllister had not shown the degree of reliability , to allow me to trust
him with an automobile , and go about over the state , and represent The
Advertiser. '
So I transferred Mr. McAllister to the copy desk of the Journal , where he
could do good copy work , and it was daytime work , presumably better hours,
where be wouldn 't have quite as harassing a situation , and I thought he
would be very happy to be on the day side, where he had a better job, with
no cut in pay.
From all the evidence I conclude and find that the Respondent 's action in trans-
ferring McAllister on or about December 14, 1949, was violative of Section
8 (a) (3) of the Act. No reasonable explanation for the transfer was offered
McAllister at the time of the transfer . The record discloses that he received 2
raises while he was State editor and before October 1949 . Therefore , it would
appear that his performance as State editor was satisfactory , at least until the
advent of the Union . While McAllister did not receive a cut in pay , his transfer
was in fact a demotion , taking - into consideration the apparent differences
in importance and opportunity for advancement between the 2 jobs . McAllister's
testimony in this respect stands uncontradicted . As related above, the Respond-
ent's scale of pay for copy reader before December 1949, ranged from $45 to $55
per week. As State editor McAllister was paid a salary of $75 per week. More-
over, the Advertiser had a circulation of about 50 ,000 and that of the Journal
amounted to only 17,000.
In my opinion , the Respondent 's action in the job transfers discloses a deliber-
ate course of conduct , designed to punish the union adherents and to reward anti-
union employees by giving them more desirable positions or promotions. The
undisputed evidence shows that the Respondent was aware of its employees'
attitude toward the Union. In this manner both Bennett and Carter , who were
not adherents of the Union , were rewarded ; and Mohr, who joined but later
renounced the Union, was likewise rewarded.
THE ADVERTISER COMPANY, INC . 623
3. Rhea Cumming
Cumming was hired by the Respondent in September 1947 as a reporter. In
December 1948, she was promoted to society editor of the Journal. As related
above, the union meeting of October 30, 1949, was held at Cumming's apartment.
She was one of the seven employees discharged on November 5 and reinstated on
November 11.
On December 4, 1949, Cumming was demoted to the job of reporter. On that
day she was told by Shelnutt that she was being demoted because she had
called him a "s- of a b-," because she had refused to print a correction
of a story, because she had lied about him to Jessie Broyles, and because she had
`gone over [his]. head" to Mahoney to run a three-column headline on the
society page.13 Cumming's salary was not decreased in the job transfer.
About 3 weeks after her transfer, Cumming was assigned extra work as church
editor for both newspapers. She did not receive any additional compensation
for this work. -
On December 4, Katherine Tyson, an employee who had not joined the Union,
was promoted from reporter to society editor for the Journal. Tyson's salary
was increased at the time from $30 to $50 per week, or $5 per week more than
Cumming had received for the same job.
Hudson, Jr., testified at length concerning the reasons for the job transfers
of Cumming and Tyson. With respect to Cumming, he testified, in substance,
that she was not fitted for the position and that complaints had been made about
her work during the whole period of time that she was society editor. When
questioned by the Trial Examiner as to the reason for Cumming's transfer,
Hudson, Jr., testified, "It was because of her work being deficient and also
because of the disturbances which had taken place in the society department
of a nature which should not occur in the society department, because of her
rebellious attitude toward everything in general at the time. 'She had not been
for two or three weeks, though complaints had been made about it, performing an
adequate job. We felt that by putting her back in a reportorial job on a general
assignment she would find her feet again and do her job, which she did."
I find that the Respondent on December 4, 1949, demoted Cumming from
society editor to reporter in violation of Section 8 (a) (3) of the Act. The
conclusions reached in McAllister's transfer also apply to Cumming's case.
By ousting Cumming from her job, the Respondent was in position to reward
Tyson, an antiunion employee, with a promotion and an increase in salary.
Cumming admitted that Shelnutt at times complained about her work. In
this connection she testified to the effect that he did not like to have employees
display initiative. However, if the complaints against her work were as serious
as the testimony of Hudson, Jr., would lead one to suppose, it would appear that
the Respondent would not have kept her in the position for about a year without
replacing her. Further, I believe that the reasons for the transfer, as stated
by Shelnutt, were pretexts. Cumming's remark concerning Shelnutt could not
have been taken too seriously by the Respondent, taking into consideration that
she later was made church editor. Also, it is undisputed that .Shelnutt used
the same language during conversations with Ozmore, as related above.
i$ Cumming testified credibly and without contradiction that Shelnutt made the above
statement. Shelnutt did npt appear at the hearing as a witness. Cumming also testified
credibly that she had called Shelnutt a "s. o. b." on two occasions, but not to his face ;
that the nearest occasion to December 4 was when he had "yelled " at Broyles as she was
talking to McAllister ( as related above, this incident took place on about .December 1) ;
that the other occasion was on November 11 after Shelnutt had notified her that her hours
of actual work had been increased; and that the other charges made by Shelnutt against
her were not true.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Extra assignments
About August 1949,Miss Basenach, an employee who worked on church news,
resigned. McAllister discussed the work with Mahoney and offered to do the
church news "for a little raise." Mahoney agreed to pay McAllister $7.50
extra per week for the work and instructed him to enter on his pay card as
overtime the necessary number of hours to equal that amount. Broyles also
performed extra work on church news, for which she received a salary increase
of about $5 per week. About December 24, McAllister and Broyles were
relieved of this extra work. McAllister no longer was paid the extra $7.50,
but Broyles' salary was not cut. Cumming thereafter was assigned to the
church work, but without additional compensation.
As will be hereinafter related, Walter Miles, a sports assistant under Max
Moseley, was discharged on December 17, 1949. Following his discharge, Mc-
Allister, Brown, Calhoun, and William Smith, Jr., all adherents of the Union,
were given extra assignments in the Advertiser sports department without
receiving additional compensation. Together with Rubye Smith, a part-time
employee of Respondent, they performed approximately 80 percent of the sports
work formerly covered by Miles. On April 15, 1950, the hours of both McAllister
and Brown were changed by Mahoney so that they could cover late sports
events." Both were required,to report for work at 3 p. m. rather than at
2 p. m.
Rubye Smith was an employee of the Associated Press. She also tabulated
stocks and performed various other jobs as a part-time employee of the
Respondent. She worked on the stocks for about 2% hours per day and
was paid 50 cents an hour for the work. On about January 1, 1950, the
the stock work was taken from Smith and given to Broyles. Broyles, who
was a reporter, did not receive an increase in pay for this extra work"
The evidence shows that it was the Respondent's custom before November 1949,
to pay for extra assignments which were outside of an employee's usual
and normal duties. It appears from the record that the only exception to
this practice was in the case of William Smith. Smith did some voluntary
work on sports during 1949 for which he was not paid anything extra. In
every instance related above, the extra work assigned was foreign to the
employee's regular work. All of the employees involved were adherents of
the Union; and the record does not reveal that any antiunion employees were
assigned extra work without additional compensation. In fact, it is undisputed
that Azbell and Charles Harbin received wage increases for work outside of
their usual duties. Both Azbell and Harbin were antiunion employees. Harbin
wrote a short column entitled, "Harb's Barbs" ; Azbell performed some editorial
work. It may be claimed that these extra services of Azbell and Harbin were
specialized and not comparable to the extra work assigned to the union adherents.
This appears to be true of stock tabulations and possibly the sports work,
but not of the church work. The record indicates that church work involved
preparation of the church page, including the writing necessary- thereto.
In my opinion, the matter of extra assignments is another example of
the Respondent's policy to punish the union adherents and reward those employees
who were antiunion. Thus, it appears that extra work for which additional
compensation was not paid was assigned to union adherents exclusively ; and
antiunion employees were rewarded with wage increases when they performed
• i* As related-above, McAllister was reinstated as State editor in February 1950.
As related above, Broyles' salary was not cut when she was relieved of the church work.
THE ADVERTISER COMPANY, INC. 625
extra work, even though it apparently was on a voluntary basis. As Shelnutt
expressed it, they were receiving "union treatment." Accordingly, it is found
that- the Respondent by its assignments of extra work and by taking away
extra pay for such assignments discriminated against McAllister, Cumming,
Brown, Calhoun, and William Smith because of their membership in and
activities on behalf of the Union. It is not found that Broyles' assignment
to stock work without extra compensation was discriminatory. She received
a wage increase for church work, and her salary was not cut when she was
relieved of that work.
G. Wage increases
The evidence discloses that the Respondent granted wage increases to 15 of
its nonsupervisory employees after November 30, 1949, the date of the election
conducted by the Board.16 Included in this number were 7 employees who
signed membership cards of the Union, namely, Walter Moseley, Phyllis Kraus,
Mohr, Haley, Broyles, Nancy McDonald, and William McDonald. Moseley,
Kraus, and Mohr, however, signed the petition to decertify the Union.
The General Counsel contends that in the handling of wage increases the
Respondent discriminated against employees who were members of the Union.
In this connection he points out that the Respondent was forced to increase the
salaries of Broyles and Nancy McDonald in order to meet the amended min-
imum wage requirements of the Fair Labor Standards Act ; and that Haley and
McDonald did not receive increases in May, but replacements of benefits lost
under the training program of the Veterans Administration 17
The evidence discloses that the Respondent was forced to grant wage increases
to Broyles and Nancy McDonald in order to comply with the new minimum
wage requirements. Therefore, their raises are not relevant to the question
under consideration.
With respect to Mohr and Kraus, the evidence indicates that they renounced
the Union shortly after they signed membership cards. Mohr openly made it
known that he was against the Union. They did not attend the union meeting
held on October 30, 1949, or any other meetings ; and, except for signing mem-
bership cards, it does not appear that they at any time engaged in union activi-
ties. Kraus testified to the effect that she did not intend to join the Union
when she signed a card. Mohr testified that he did not know that he was join-
ing a labor organization .18 Accordingly, it is clear from the record that these
two employees at no time openly espoused the Union. Excepting that the evi-
dence conclusively shows that the Respondent maintained a close check on
the attitude of its employees toward the Union, there is no proof in the case
that the Respondent had knowledge of Kraus' and Mohr's union membership.
However, if knowledge is inferred, it also follows that the Respondent learned
18 Azbell , Mohr , and Harbin each received two raises. Increases for employees Carter
and J. Fred Thornton involved promotions to supervisory positions. Adams and Max
Moseley, sports editors, also received wage increases but are not included in the number
stated above
17 Considerable evidence concerning the training program was adduced by both the
General Counsel and the Respondent . Most of this evidence related to Haley and involved
his credibility. However, all findings herein, which are based in whole or in part on
Haley's testimony, are supported by the testimony of other witnesses. Accordingly, I
believe that a full discussion of this evidence would unduly burden this Report.
18 While the undersigned does not credit the above testimony of Kraus and Mohr, it
serves as an indication of their early defections from the Union.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their early defections from the Union. Therefore, insofar as Kraus and
Mohr are concerned , I believe that the General Counsel has sustained the
burden of proof.
Walter Moseley was a known adherent of the Union. He attended several
meetings of the Union, including the one held on October 30. Further evidence
conclusively shows that the Respondent was aware of his union activities.39
As related above, he signed the petition for decertification of the Union. How-
ever, the petition was not circulated until May or June 1950; and Moseley
received a salary increase in February. There is no evidence in the case of his
defection from the Union before receiving the raise.
On about February 7, 1950 , Hudson, Jr., amended the Respondent 's agreement
under the training program of the Veterans Administration by lowering the
rates of pay for reporters . The "journeyman rate" was lowered from $70 to
$52 per week. This revised rate caused Haley to be cut off from his benefits
under the program. Haley immediately protested to Hudson, Sr. Azbell and
William McDonald also had been under the training program. However, Azbell
had withdrawn from it; and McDonald's benefits had expired. On February 12,
the Respondent raised Azbell,20 Haley, and McDonald in amounts equivalent to.
the benefits lost under the program. Apart from the Respondent's motive for
revising the training agreement, which will be discussed hereinafter, it is clear
from the record that the Respondent was not obligated to grant any of the
increases . The question of whether or not the increases were replacements of lost
benefits is not material. Therefore, the General Counsel's contention with re-
spect to Haley and McDonald is rejected.
In summary, the above facts show that 3 kalown adherents of the Union,
Moseley, Haley, and William McDonald, received wage increases. As against
this number , there are 10 employees who either were neutral or antiunion.
Three of these employees received 2 raises each. While to some extent these
facts indicate disparate treatment, nevertheless I conclude and find that the
General Counsel failed to establish by the preponderance of the evidence that the
Respondent in the handling of wage increases discriminated against employees
because of their membership in or activities on behalf of the Union.
H. The discharge of Walter Miles
Miles was hired by the Respondent in January 1949 as a reporter in the Ad-
vertiser sports department under Max Moseley. His starting salary was $40 per
week and was raised after about 6 weeks to $45 per week. On at least one occa-
sion he did a general news reporting job which was placed on the first page of
the Advertiser. 'During October 1949, Miles and several other employees dis-
cussed the idea of forming a union. Thereafter , Miles was active in organizing
the Union . He did not attend the union meeting at Cumming's apartment on
October 30, but signed a membership card on November 1.
On about November 2, Max Moseley asked Miles if he was "messed up" with
the Union. Miles replied, "I certainly was. I was right in the middle of it in
19 Walter Moseley testified credibly that after the discharge of Walter Miles and about
the middle of December 1949, he had a conversation with Max Moseley ; that during the
day of the conversation he (Walter Moseley ) had attended a union meeting ; that Max
asked him if he had attended the meeting ; that he replied that he had ; and that Max
then told him that he should "watch Phis] step " or he also would be discharged, that
"the front office" knew he had not been "too active in the Guild" and had "not taken any
voice in things ," and that the "front office" would "play along" with him if he "played
along with them." Walter and Max Moseley are not related.
11 The above increase in pay was the second for Azbell
THE ADVERTISER COMPANY, INC. 627
fact." Moseley then said , "Well, you know they can't get away with organizing
the union. They tried it once before and Mr. Hudson got rid of every one of
them." zz
As related above, McAllister and six other employees were discharged dis-
criminatorily on November 5 and were reinstated on November 11. On Novem-
ber 12, McAllister and Walter Moseley had a conversation with Max Moseley.
McAllister remarked that he was glad to get back to work. Max Moseley then
said, "You know, I was talking to Bill Mahoney, and he said that Walter Miles
that works in your department has certainly been active in the union. If I had
known that at the time, he would have been fired, too, along with the other
seven."
On about November 15, Miles and Max Moseley discussed the reinstatement of
the seven employees who had been discharged. Miles stated that in his opinion
the incident was closed since the employees had been rehired. Moseley replied
that he did not "think so," and that the Respondent "would run them off .. .
would get rid of each one if them, one way or another." Miles remarked that
since "the Government had stepped in," the Respondent would have to obey the
law and "cut out that business." Moseley then said, "Well, I don't know about
that. Shelnutt has already asked to have McAllister transferred under him";
and that Shelnutt had told him, "I'll run the s- of a b- [McAllister] off in
two weeks."
On December 3, 1949, Mahoney notified Miles of his discharge, effective Decem-
ber 17. As the reason for the discharge, Mahoney stated, "Mr. Hudson had
decided to cut down on expenses in the sports department " That same night
when Mahan, assistant managing editor of the Advertiser, learned of Miles' dis-
charge, he had a conversation with Mahoney. Mahan protested that Mahoney
should inform him before discharging employees. Mahoney stated that the
Advertiser had "too much sports staff." Mahan argued that this was not true.
During the conversation Mahoney remarked that Miles was "one of the organ-
izers" of the Union.
The Respondent contends that Miles was discharged for economic reasons.
In this connection, Hudson, Jr., testified, in substance, that before the consolida-
tion program was put into effect each sports staff wrote and reported only for
its own particular paper ; that under the program it was contemplated that each
staff would perform this work for both papers ; that it was apparent from such
coordination of the work that one member of the Advertiser's sports staff was
not needed ; and that he decided that Miles should be dismissed, taking into
consideration that Miles was the last sports reporter employed. Hudson, Jr.,
also testified that during negotiations for reinstatement of the seven employees
who had been discharged on November 5, Hudson, Sr., told Field Examiner Slyer
that it might be necessary to dismiss some employees ; and that Slyer replied that
if such was the case, consideration should be given to employees who had seniority
in length of service.
The Respondent's contention is rejected. The evidence shows that Miles was
notified of his discharge at least about 2 weeks before consolidation was put into
effect. Therefore, it would appear that the Respondent was excessively hasty
to dispense with his services. In fact, the record discloses that consolidation did
21 Miles testified credibly to the above conversation . Moseley, who did not impress the
undersigned as a reliable or credible witness, denied the statement attributed to him by
Miles:
22 As related above, Shelnutt was assistant managing editor of the Journal ; and
McAllister was transferred on December 12 from the Advertiser to the copy desk of the
Journal.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not eliminate the need for a third reporter on the Advertiser's sports staff. As
related and found above, McAllister, Calhoun, Brown, and William Smith were
given extra assignments in the sports department. Together with Rubye Smith,
they performed about 80 percent of Miles' work after his discharge. Also, it Is
undisputed that Max and Walter Moseley were required to work harder, and that
the latter worked more overtime. For these reasons and also taking into con-
sideration that the extra assignments were made for discriminatory purposes, I
do not believe that the fact that Miles has never been replaced is conclusive.
The Respondent's motive for the discharge becomes clear from the statements of
Max Moseley and Mahoney.
Accordingly, I find that the Respondent discharged Walter Miles on December
17, 1949, because of his membership in and activities on behalf of the Union.
1. The refusal to bargain
1. The appropriate unit and representation of a majority therein
The complaint, as amended, alleges that "all editorial and news department
employees, including staff writers, State editors, telegraph editors, copy readers,
reporters, assistant sports editors, society editors, file clerks and copy boys ; and
excluding editor, assistant to the editor, managing editor, assistant managing
editor, sports editors, city editors and other supervisors as defined in the Act,
and part-time and temporary employees," constitute a unit appropriate for the
purposes of collective bargaining. The main difference between this unit and
the one agreed upon for the consent election is that sports editors and city editors
are excluded in the former but included in the latter. As has been discussed and
found above, sports editors and city editors are supervisors within the meaning
of the Act. No evidence was adduced at the hearing which would conflict with
the unit alleged to be appropriate in the complaint.
Accordingly, the undersigned finds that the unit alleged in the complaint, as
amended, has at all times material herein constituted and does now constitute an
appropriate unit within the meaning of the Act ; he finds that said unit will insure
to the employees of the Respondent the full benefit of their rights to self-organiza-
tion and collective bargaining,'and otherwise effectuate the purposes of the Act.
The record discloses that as of November 30, 1949, there were 31 employees in
the unit alleged to be appropriate in the amended complaint. On or before
November 2, 1949, 20 of these employees designated the Union as their collective
bargaining agent. In the unit used for the consent election there were 35 em-
ployees, including the 4 sports editors and city editors. Of 34 votes cast at the
election on November 30, the Union won by a vote of 20 to 14.
Accordingly, I find that the Union on and after November 30, 1949, represented
a majority of the employees in the appropriate unit for the purposes of collective
bargaining. There is evidence in the case of defections from the Union. I find
that said defections were caused by the Respondent's unfair labor practices,
found above.
2. Unilateral wage increases
During a period from December 4, 1949, through May 7, 1950, the Respondent
granted wage increases to a number of employees in the appropriate unit. As
discussed above, these increases were on the basis of merit with few exceptions,
and three employees each received two increases. Except as hereinafter related
the Respondent did not notify the Union of these increases or make them the
subject of any bargaining conference.
THE ADVERTISER COMPANY, INC. 629
The first bargaining conference between the Respondent and the Union was held
on December 28, 1949. At that meeting Copeland, international representative
of the Union, told Hudson, Sr., that before entering into a discussion of contract
proposals he wanted to talk about "some unilateral wage increases which had
been granted after the November 30th election" and "the discriminatory change in
the hours" of several employees. Hudson, Sr., replied, "Copeland . . . you have
presented us with a contract proposal. We have presented you with a contract
proposal. We will talk about anything in either one of those proposals. We are
not compelled to talk about anything else until we sign an agreement governing
the working conditions and other things on the newspaper." Copeland persisted,
explaining that the Union was the certified collective bargaining agent and that it
had "the right at any time to discuss working conditions, changes of hours, or
salary increases." Copeland also stated that the Respondent's position was "not
within the interpretation of the Act." Hudson, Sr., replied, "When we had the
election on November 30th, you people won the election, but management did not
give up any of its managerial rights. We are still running this newspaper. Now,
if I have violated any rule or regulation, you take it up with the proper federal
agency."
McAllister, Haley, and William McDonald were on the Union's bargaining com-
mittee. At some time during the latter part of January or early February 1950,
they were called to the office of Hudson, Sr." He told them that he wanted to
discuss some wage increases that already had been granted and some that were
contemplated. The names of the employees involved were mentioned by Hudson,
and he asked the committee for approval of the increases. With one possible
exception,24 all employees named were nonunion. With respect to the increases
which had been granted, the committee members refused to ratify them by stating
they "could hardly approve anything that had already been done." As for the
proposed increases, the committee protested them by stating that there were other
employees who were more deserving. The committee indicated, however, that it
would approve the proposed increases if the Respondent also increased the wages
of Morris and William Smith. In this connection McAllister stated, in substance,
that the Union did not wish to take the position of opposing wage increases since
its purpose was to get more benefits for all employees, but that acceptance of the
proposed increases was conditional. The Respondent refused to raise Morris and
Smith and_gave reasons for its refusal 26 -
During the early part of May 1950, the Union's bargaining committee again was
summoned to a conference by Hudson, Jr. He requested the committee to give its
approval to a proposed increase for Charles Harbin. When the committee pointed
out that this was the second raise in a short period for Harbin, Hudson asked if
there was any objection to the increase. The committee replied, "Not if you will
raise Billy Smith and Hugh Morris." The committee also stated that it wished to
23 McAllister, McDonald, and Haley testified to only one meeting on or about February 10
Hudson , Jr., testified to two separate meetings, the first of which was held on about Janu-
ary 22. This conflict is not resolved as it is not considered material.
24 Walter Moseley was mentioned as an employee whom the Respondent proposed to
increase. As discussed above, the time of Moseley's defection from the Union before be
signed the petition for its decertification is not indicated in the record
26 The above facts concerning this meeting are based upon the credited testimony of
McAllister, Haley, and McDonald Hudson, Jr., who was present at the meeting, testified
to the effect that the committee indicated approval of all of the wage increases and that the
approval of the proposed increases was not conditional His testimony in this connection
appears to be based upon his own conclusions rather than fact. For example, he testified
that the committee did not object to the increases on the grounds that they were "discrim-
inatory " He admitted that Haley stated, "We can't ratify something that you have
already done ," and that the committee brought up the names of Morris and Smith.
986209-52-vol 97-41
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss raises for some other employees 28 Hudson answered that he had rejected
raises for Morris and Smith at the previous meeting and that he was not prepared
to discuss any additional employees at that time. Haley then remarked, "I don't
think that is bargaining, Mr. Hudson." Hudson replied to the effect that the
Union did not have any "veto power" over the increases, and that his only
obligation was to "discuss" them.
I find that the Respondent violated Section 8 (a) (5) of the Act by unilaterally
granting wage increases on the basis of merit on and after December 4, 1949.
It is undisputed that the Union did not ratify or approve the wage increases
which were granted during December. During the time that the other increases
were put into effect, the Union and the Respondent held a number of scheduled
bargaining conferences. As related above, at the first conference the Respondent
refused Copeland's request to discuss the unilateral wage increases. None of
these increases were brought up by the Respondent as a subject for discussion at
such conferences thereafter. However, the Respondent sought to obtain the
Union's approval of proposed wage increases. It called some two or three
unscheduled meetings of the employees' bargaining committee. It notified the
committee of most, but not all,' of the intended raises, and permitted the com-
mittee to voice its objections. It is clear from the record that the Respondent's
attitude at these meetings was one of "take it or leave it." Although the commit-
tee did not approve or agree to the increases, the Respondent put them into effect.
By such course of conduct the Respondent did not bargain collectively within the
meaning of the Act.
I further find that the Respondent's refusal on December 28, 1949, to discuss
with Copeland the changed hours and unilateral wage increases constitutes a
refusal to bargain.
3. The negotiations
On about December 16, 1949, the Union sent its proposed contract to the Re-
spondent. The Respondent's counterproposal was given to the Union at the first
bargaining conference on December 28. Thereafter, 13 bargaining conferences
were scheduled and held on various dates starting on January 5, 1950, and ending
on June 27, 1950. Stenographic transcripts were made of all conferences except
the one held on December 28, 1949. The Respondent and the Union were unable
to reach agreement on a contract. -
The Union's proposed contract contained a salary schedule for "Journalists,
Photographers and Artists" which started at $50 per week and automatically
progressed $10 per week until a total of $100 per week was reached after 5 years of
service." The Union's proposal also specified a 5-day week of 7 hours per day, or
a total of 35 hours per week.
The Respondent's first counter proposal contained five salary classifications
without any automatic progression. The classifications covered all employees
in the unit and called for the following weekly wages: "A"-$50; "B"--445;
"C"-$40, "D"-$35; and "E"-$30. The proposal did not specify a normal
workweek covering these wages. However, it did provide that time and one-half
the regular hourly rate would be paid for all hours worked over 40 within 1 week ;
and that "Each employee under wage and hour regulations will be advised on
26 It appears that employees Brown, Calhoun, Broyles, and Cumming were mentioned In
this connection
The committee was not notified of at least one increase, namely, Mohr's second.
£6 The 'proposal also contained lower rates of pay for employees in such classifications as
"file clerk" and "copy boy "
THE ADVERTISER COMPANY, INC . 631
date of employment or advancement his hourly rate which shall be not less than
75 cents per hoer with as above stated time and one-half for all hours authorized
over the 40 hours in any financial week."
At a meeting on January 23, 1950, the Respondent increased its salary pro-
posal by $10 and $5 per week on classifications A and B, respectively, but did
not increase the lower classifications.2B At the next meeting on February 3,
the Respondent for the first time advised the Union that its wage offers werj
based upon a week of 48 hours. While explaining the rates on this basis, Hudson,
Sr., stated, "Class E and D, I don't know how we can figure them." 3° Later in
the meeting when Copeland pointed out the discrepancy between Respondent's
classifications D and E and the 75 cents minimum wage, the Respondent stated
that employees in those classifications could be worked less hours per day so as to
comply with the minimum wage. At the same meeting the Union lowered its
wage proposal from $100 to $80 on the total classification and decreased all
other classifications proportionately, based on a 40-hour week rather than the
35 hours in its original proposal. In support of the Union's wage proposal,
Copeland referred to the rates in the Respondent's agreement under the training
program of the Veterans Administration 81
On about February 7, Hudson, Jr., revised the Respondent's agreement under
the training program by lowering the weekly rates. As revised, the rates started
at $30 and progressed to $52, and were based upon progressive weekly hours,
starting at 40 and ending at 48.
At the next meeting on February 15, Respondent made new wage proposals
based on a differential in hours between classifications, as follows : A-$60.32;
D-$50.44; C-$40.04; D--$34.50; and E-$30. A, B, and C rates each were
based on 48 hours per week, D on 44 hours and E on 40 hours.32 This was the
Respondent's last wage offer.
The Respondent's second counterproposal was presented to the Union at a
meeting on March 8. Section 10 of the proposal states in part, "during the
term of this agreement, the compensation being presently paid to each employee
in the unit shall not be reduced." However, section 5 of the proposal provides
as follows :
The regular work week of classification A, B and C, employees shall con-
sist of 48 hours served by working consecutive hours for 6 days each week
exclusive of a daily luncheon period of not to exceed 1 hour each day, at being
understood that the regular work week is not a guaranteed Work week.
(Emphasis supplied.)
The Respondent's third and last counterproposal, given to the Union at a meet-
ing on June 27, changed the guaranteed compensation provision, as follows :
"During the remainder of the term of this Agreement; 3 the hourly rates of the
"The new minimum wage of 75 cents per hour under the Fair Labor Standards Act
became effective on January 25.
80 The above classifications complied with the 75 cents minimum wage on the basis of a
40-hour week, but not on 48 hours
11 The agreement in effect at the time provided for progressive weekly salaries, starting at
$36 and ending at the "journeyman rate" of $70. The agreement did not specify the weekly
hours. However, as related above, before the advent of the Union the Respondent's payroll
records were based upon a week of 48 hours with few exceptions
82 It will be noted from the above that classifications A, B, and C were increased slightly,
and that D was reduced by 50 cents per week, not taking into consideration the reduction of
hours from 48 to 44.
33 Respondent 's third proposal specified the term of the contract as running from December
15, 1949 , until December 15, 1950.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees ... shall not be reduced" (emphasis supplird). Tls proposal also
did not provide for a guaranteed workweek.
Conclusions
As related above, the Respondent's first proposed contract provided for five
wage classifications with weekly salaries ranging from $30 to $50, but did not
specify the hours upon which such rates were based. Considering the imminence
of the new minimum wage under the Fair Labor Standards Act, it is reasonable
to assume that the rates were based upon a week of 40 hours. Otherwise clas-
sifications D and E would be below the prescribed minimum wage. The Respond-
ent increased its salary proposals for the higher classifications at the meeting
of January 23. Again no hours were specified. At the February 3 meeting the
Union was advised for the first time that the Respondent's proposals were based
upon a week of 48 hours. When the Union called attention to the fact that on
that basis the rates for classifications D and E were not in compliance with the
new minimum wage, the Respondent manipulated its later proposals so as to
take care of the defect. However, this was not accomplished by increasing the
weekly wages, but by decreasing the hours !
When the Union called the Respondent's attention to the fact that its proposed
rates also were not in accord with its agreement under the training program
of the Veterans' Administration, the Respondent again repaired the defect. The
agreement was revised by lowering the journeyman rate from $70 to $52 and
other rates proportionately, and by specifying the weekly hours. However, the
Respondent has not taken care of other defects in its armor. While it was
conducting negotiations with the Union, it was granting merit increases to its
employees, almost all of whom were not adherents of the Union. The evidence
shows that during the period of the negotiations there were eight e" employees
whose weekly salaries ranged from $72.50 to $95, four with salaries from $60
to $67.08, five with salaries from $50 to $57.52, and five with salaries from $36.75
to $45. With the exception of two employees whose alleged weekly hours ex-
ceeded 48, all of the above salaries were based upon a week of 48 hours. Never-
theless, during the negotiations the Respondent failed and refused to incorporate
these existing weekly rates into its wage proposals.
Actually, the Respondent's wage proposals were meaningless since it refused
to guarantee a workweek of 48 hours. In my opinion, the guaranteed "com-
pensation" clause in the Respondent's second proposal is subject to interpretation
in view of a previous clause which stated that the workweek of 48 hours was
not guaranteed. However, the Respondent's third proposal is not subject to
misinterpretation in this respect since it only provided that "hourly rates"
would not be reduced. Under this proposal, an employee had no safeguard.
Without a breach of the contract, his salary could be reduced substantially by
cutting down his hours.
Upon all the evidence I conclude and find that the Respondent did not bargain
with the Union in good faith. There is other undisputed evidence in the case
which indicates bad faith on Respondent's part during negotiations with the
Union. I do not believe that a discussion of such facts would serve any purpose
in view of the above findings and particularly in view of the finding that the
Respondent refused to bargain collectively on December 28, 1949.
u The above figure excludes all supervisory employees, including State editors and city
editors ; as related above such supervisory employees were included in the unit used for the
consent election.
THE ADVERTISER COMPANY, , INC. 633
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring in
connection with the operations of the Respondent described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has discriminated against Gerald J.
McAllister , Foster A. Haley, William H. McDonald , Nancy W. McDonald, Rhea
Cumming , Clinton G . McCarty, William 0. Smith , Jr., William 0. Calhoun, Ed-
ward O . Brown , and Walter Miles because of their membership in and activities
on behalf of the Union . McAllister and Cumming were demoted to less desirable
positions . Since McAllister already has been reinstated to his former position,
no recommendation will be made in his case . However , it will be recommended
that the Respondent immediately offer to restore Cumming to her former position
as society editor or to a substantially equivalent position.
McAllister , Cumming, Smith , Calhoun, and Brown were discriminated against
in that extra duties were assigned without extra compensation . McAllister also
was discriminated against in that extra duties for which he had received com-
pensation in the form of overtime were withdrawn . These violations present
difficulties insofar as the remedy is concerned . The extra assignments were per-
formed during hours for which the employees were paid . However, it does not
appear that such assignments were made to any employees who were not adher-
ents of the Union , with the exception of Azbell and Harbin . These two employees
performed extra work , apparently on a voluntary basis at the start , for which
they were given increases in salary . While this weakens the Respondent's eco-
nomic defense , it will not be recommended that the above employees be made
whole. It will be recommended that the Respondent cease discriminating against
adherents of the Union ( 1) by assigning them exclusively to extra work for which
additional compensation is not paid, and (2) by discriminatorily not according to
them wage increases for extra work.
It has been found that the Respondent discriminated against Haley, William H.
McDonald , Nancy W . McDonald , Cumming , and McCarty by changing their hours
of work on November 11, 1949. It will be recommended that the Respondent
cease and desist therefrom . No other recommendation will be made in this con-
nection, since the record indicates that the hours of all employees likewise were
changed during December 1949, when the Respondent 's program of consolidation
was put into effect.
It has been found that the Respondent discriminatorily discharged Miles on
December 17, 1949. It will not be recommended that the Respondent offer Miles
reinstatement since he testified at the hearing that he did not desire it at the
same salary he received when discharged . It will be recommended that the
Respondent make whole Miles for any loss of pay he may have suffered by
reason of Respondent 's discrimination by payment of a sum of money equal
to that which he would have earned as wages from the date of the discrimina-
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to September 18,1950 ," 5 less his net earnings during said period. Loss of
pay shall be computed on the basis of each separate calendar quarter or portion
thereof during the period from the Respondent's discriminatory action to the
date of a proper offer of reinstatement. The quarterly periods, herein called
quarters, shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which he
would normally have earned for each such quarter or portion thereof, his net
earnings, if any, in other employment during that period. Earnings in any one
particular quarter shall have no effect upon the back-pay liability for any
other quarter. In accordance with the Woolworth decision," it will be recom-
mended that Respondent, upon reasonable request, make available to the Board
and its agents all records pertinent to an analysis of the amount due as back
pay.
It further has been found that the Respondent by its course of conduct on
and after December 4, 1949, refused to bargain collectively with the Union as
the exclusive representative of its employees in a unit appropriate for the
purposes of collective bargaining. Accordingly, it will be recommended that
the Respondent bargain collectively, upon request, with the Union as the-
exclusive representative of its employees in the aforesaid appropriate unit, and
that it embody any understanding reached in the course of such collective
bargaining, upon request, in a written agreement, signed by the parties
affected thereby.
The unfair labor practices found reveal on the part of the Respondent such a
fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless Respondent is required
to take some affirmative action to dispel the threat. It will be recommended,
therefore, that Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees in the exercise of rights guaranteed
by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS or LAW
1. American Newspaper Guild, C. I. 0., is a labor organization within the
meaning of Section 2 (5) of the Act.
- 2. By discriminating in regard to the hours of employment, extra job assign-
ments, and other conditions of employment of Gerald J. McAllister, Foster A.
Haley, Clinton G. McCarty, William H. McDonald, Nancy W. McDonald, Rhea
Cumming, William O. Smith, Jr., William O. Calhoun, and Edward O. Brown,
the Respondent has engaged and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
3. By demoting to less desirable positions Gerald J. McAllister and Rhea
Cumming, the Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Walter
Miles, the Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
- It is presumed that Miles made up his mind that he did not desire reinstatement on
September 18, 1950, the date he appeared as a witness . This presumed date hereafter
may be ascertained more accurately by a past enforcement proceeding or agreement.
36 F, W. Woolworth Co., 90 NLRB 289.
SAMUEL STAMPING AND ENAMELING COMPANY 635
5. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
6. All editorial and news department employees, including staff writers, State
editors, telegraph editors, copy readers, reporters, assistant sports editors, society
editors, file clerks, and copy boys ; and excluding editor, assistant to the editor,
managing editor, assistant managing editor, sports editors, city editors, and other
supervisors as defined in the Act, and part-time and temporary employees, con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
7. American Newspaper Guild, C. I. 0., was on November 30, 1949, and at all
times since has been, the exclusive representative within the meaning of Section
9 (a) of the Act of all employees in the aforesaid unit for the purposes of
collective bargaining.
8. By refusing to bargain collectively with the aforesaid Union as the exclusive
representative of the employees in the appropriate unit, the Respondent has
engaged and is engaging in unfair labor practices within the meaning of Section
S (a) (5) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
SAMUEL STAMPING AND ENAMELING COMPANY and UNITED STEEL-
WORKERS OF AMERICA, CIO, PETITIONER . Case No. 10-RC-1570.
December 20, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Paul L. Harper,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Reynolds and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.,
3. The Intervenor has represented the employees of the Employer
under the terms of a contract executed on October 10, 1942, for 1
I Local No. 31, Stove Mounters International Union of North America, AFL, was allowed
to intervene on the basis of an existing collective bargaining agreement with the Employer.
97 NLRB No. 82.