The Citizen-News Co.

National Labor Relations Board - Board Decisions

Jul 16, 1941

33 N.L.R.B. 511 (N.L.R.B. 1941)

In the Matter of THE CITIZEN-NEWS COMPANY and Los ANGELES
NEWSPAPER GUILD
Case No. C-1790.-Decided July 16, 1941
Jurisdiction : newspaper publishing industry.
Unfair Labor Practices
Interference, Restraint, and Co ercion: anti-union statements ; depriving editorial
employees of bylines because of participation in strike.
Discrimination: charges alleging the discharge of two employees because of
union activity dismissed as to one employee, sustained as to other.
Remedial Orders : reinstatement and back pay; bylines ordered restored to
employees in the event the employer has not already done so.
Mr. David Sokol, for the Board.
Mr. Willis Sargent, of Los Angeles, Calif., and Mr. Harlan G.
Palmer, of Hollywood, Calif., for the respondent.
Miss Urcel Daniel and Mr. Charles J. Katz, of Los Angeles, Calif.,,
and Mr. Abraham J. Isserman, of Newark, N. J., for the Guild.
Mr. William T. Little, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly, filed by Los Angeles
Newspaper Guild, herein called the Guild, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Twenty-first Region (Los Angeles, California), issued its com-
plaint dated October 11, 1940, against The Citizen-News Company,
Hollywood, California, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and notice of hearing thereon were duly served upon the respondent
and the Guild.
In substance the complaint alleged that the respondent (1) dis-
charged and refused to reinstate Karl Schlichter and Leonard Lugoff
because of their union membership and activity; and (2) interfered
33 N. L. R. B., No. 100.
511
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act by (a) making known to
them its disapproval of and hostility to the Guild and its opposition
to their membership in or assistance to the Guild, (b) making
speeches and distributing propaganda calculated to force its em-
ployees to withdraw from the Guild and to interfere with their free
choice of collective bargaining representatives, (c) spreading rumors
that its employees would lose their jobs by joining the Guild, (d)
making derogatory statements in disparagement of the Guild, its
leaders, and members, (e) disparaging the work of and imposing
onerous conditions of work on Guild members solely because of their
Guild membership or activity, (f) harassing Guild members solely
because of their Guild membership by forcing them to assume menial
and undignified tasks to and for which they were unaccustomed and
untrained, and (g) refusing to adjust grievances with the Guild as
a representative of its employees. In its answer dated November 9,
1940, the respondent denied that it had engaged in or was engaging
in the alleged unfair labor practices or that its activities affected
.commerce within the meaning of the Act. .
Pursuant to notice duly served on the parties, a hearing was held
at Los Angeles, California, on November 12, 13, 14, 15, 16, 18, and
19, 1940, before C. W. Whittemore, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel and the Guild by an administrative
officer. All parties participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Guild filed a brief with the Trial Examiner subsequent to the
hearing. Thereafter the Trial Examiner filed his Intermediate Re-
port, dated January 13, 1941, copies of which were duly served upon
the parties. The Trial Examiner found therein that the respondent
had engaged in and was engaging in unfair labor practices, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the Act and recommended that the respondent cease and desist
therefrom, reinstate Leonard Lugoff with back pay, and take certain
other action designed to effectuate- the policies of the Act. He
further found that the respondent had not discriminated against
Karl Schlichter within the meaning of Section 8 (3) of the Act
and recommended that the complaint be dismissed as to Schlichter.
On February 17 and 27, 1941, the respondent and the Guild filed
THE CITIZEN-NEWS OOMPANY 513
their respective exceptions to the Intermediate Report. Pursuant
to notice duly served upon the respondent and the Guild, a hearing
was held before the Board in Washington, D. C., on March 25, 1941,
for the purpose of oral argument. The Guild was represented by
counsel and participated in the oral argument. The respondent did
not appear.
The Board has reviewed the exceptions of the respondent and the
Guild to the Intermediate Report, and in so far as they are inconsistent
with the findings, conclusions, and order set forth below, finds them
to ' be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation, having its principal
office and place of business in Hollywood, California. It owns and
publishes the Hollywood- Citizen-News, a daily newspaper, and the
Hollywood Advertiser, a weekly free-circulation newspaper. The
respondent also engages in commercial printing and operates a retail
stationery store.
The respondent sells and distributes more than 26,000 copies of
the daily Hollywood Citizen-News throughout the State of Cali-
fornia. About .5 per cent of the total copies published are shipped
daily outside the State of California to other States of the United
States. Both the Associated Press and the United Press maintain
teletype machines at the respondent's plant, and approximately 21
per cent of the reading matter in the Hollywood Citizen-News is
comprised of news collected outside the State of California and trans-
mitted by these news services through offices in California to the re-
spondent. The Associated Press has the privilege of using items of
news and intelligence collected and edited by the respondent's em-
ployees and transmitting such news and intelligence through its Cali-
fornia office to points outside the State. The respondent also sub-
scribes to numerous syndicated services which supply material origi-
nating outside the State of California amounting to approximately 17
per cent of the reading matter in the Hollywood Citizen-News.
About 10 per cent of the total advertising revenue of the said news-
paper and more than 5 per cent of the respondent's total revenue is
derived from advertising originating outside the State of California
and appearing in its columns.
In addition to large quantities of other raw materials which it
causes to be transported to it from sources outside the State, the re-
spondent uses about 350 tons of newsprint per month, all of which is
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipped to it from points outside the State of California. The pur-
chase of newsprint constitutes 20 per cent of the total expenses of
all the respondent's publications.
H. THE ORGANIZATION INVOLVED
Los Angeles Newspaper Guild, Local 69 of the American News-
paper Guild, is a labor organization affiliated with the Congress of
Industrial Organizations. The Guild admits to membership, among
employees of the Hollywood Citizen-News, all employees in the edi-
torial, display-advertising, classified-advertising, circulation, and
business- administrative departments, with certain exceptions.'.
III. THE UNFAIR LABOR PRACTICES
A. Background
On June 27, 1938, in a prior proceeding instituted upon charges
filed by the Guild, the Board issued a -complaint alleging that the
respondent had engaged in unfair labor practices within the meaning
of Section 8 (1), (3), and (5) of the Act by discharging five em-
ployees, by refusing to bargain collectively with the Guild, and by in
other ways interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act. At
the time of the hearing in that case a strike was current at the re-
spondent's plant. On July 30, 1938, subsequent to the hearing, the
respondent and the Guild entered into a strike settlement agreement
which provided for the "immediate restoration to the pay roll" of all
the striking employees, including the five discharged employees, upon
the following terms:
In the event it is finally determined that the five discharged em-
ployees, or any of them, were lawfully discharged, those so
affected by such determination shall promptly resign or be sub-
ject to discharge.
"Final determination" was thus defined in the agreement :
... either the acceptance by both sides of the determination by
National Labor Relations Board or the final determination there-
of by any court or courts to which any of the parties to said
proceedings may take such matter.
On March 26, 1940, the Board issued a Decision and Order 2 in the
above-mentioned case, herein called the earlier case, in which it found
that the respondent interfered with, restrained, and coerced its em-
1 A Guild representative testified that under the constitution employees whose "interests
lie with the management as against those of the employees " are not eligible to membership.
2 Matter of The Citizen-News Company, a corporation and Los Angeles Newspaper Gwald,
21 N L R B. 1112
THE CITIZEN-NEWS COMPANY 515
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, but that it had not refused to bargain with the Guild and had not
unlawfully discharged the five employees named in the complaint. In
order to remedy the effects of the respondent's interference, restraint,
and coercion, the Board ordered the respondent to post notices stating
that it would cease and desist from such conduct. The respondent
has not complied with this order. Harlan G. Palmer, president of
the respondent, stated at the hearing in the instant proceeding, "We
have no intention to do so until the Court orders us to do so." Nor
has the respondent complied with the Board's order in another case,3
decided September 1, 1938, in which the Board concluded that the
respondent had engaged in unfair labor practices in violation of Sec-
tion 8 (1) and (2) of the Act.
B. Interference, restraint, and coercion
The complaint alleged that the respondent imposed onerous work-
ing conditions on and assigned menial tasks to Guild members because
of their Guild membership. These charges relate primarily to the
assignments given Roger Johnson, Mellier Scott, and Karl Schlichter 4
following their reinstatement in August 1938. Johnson, Scott,
Schlichter, and two other employees were discharged in May 1938.5
In August 1938, they were reinstated pending the Board's decision.
The Board has since dismissed charges that they were discrimina-
torily discharged and found that their discharge resulted from
economy measures which required to some extent the reorganization
of the respondent's departments.6 Thus, under the strike settlement
agreement, the respondent had reinstated five employees whose services
it did not require. Reinstatement of these employees resulted in con-
fusion, transfers, and assignments to reportorial work not previously
performed by them. No editorial salary was reduced. Roger John-
son, one of the five employees reinstated, testified that when the Guild
protested these departmental changes, the grievance committee was
told by Palmer that the respondent was "trying their best to fit the
returned people into positions which in reality didn't exist and that
because they had been required to take these, people back it would
naturally create some disturbance." It is clear that an unusual situa-
tion existed. Accordingly, we find, as did the Trial Examiner, that
the record contains insufficient evidence to support a finding that any
assignment or transfer of these three employees was motivated by
3 Matter of Citizen-News Company, a corporation, and Los Angeles Typographical Union,
Local No 174, 8 N. L R B. 997.
4 The facts concerning the alleged discrimination against Schlichter are set forth in
greater detail in Section III D, infra.
5 The discharge of these five employees was alleged to have been discriminatory in
the earlier case.
9 See footnote 2, supra
450122-42-vol 33--34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their membership in or activities in behalf of the Guild or was made
for the purpose of discouraging membership in the Guild.
Immediately after the editorial employees returned to work, how-
ever, they were deprived of their bylines because, in the words of
Swisher, the city editor, "the ill will created during the strike made
it difficult for readers, particularly advertisers, to see the names of
various former strikers without becoming alarmed at the name, re-
calling old feelings from the strike." 7 We find that the strikers were
deprived of their bylines because of their participation in the strike.
Some time after the strike, according to the uncontradicted testi-
mony of Patricia Killoran, when she sought to explain her failure to
cover _ an assignment, T. Harwood Young, the respondent's business
manager, inquired "How could I believe anything after all the things
that you have done?" When asked to whom he referred, Young
replied, "all of you." Killoran thereupon accused him of referring
to the Guild and Young replied, "Well, as a matter of fact, I can't
talk about those things because I am not allowed to," and after
Killoran replied "Well, I can talk about them," Young added that
"his brother had been a, very active union man, that he knew more
about unions than I would ever know, and he knew about good
unions, like the Brotherhood, but that I was just not to be trusted,
after the things that we had done." 8
Killoran also testified that at a time when she was posting a notice
on the Guild bulletin board, she was told by Swisher that "the Guild
was not a reputable organization," and that soon after her partici-
pation in the strike, Herbert Sternberg, classified-advertising man-
ager, told her, in substance, "what a fool I was, and what a monkey I
made of myself, and how terrible the C. I. 0. was and the Guild
was and the strikers were." Killoran's testimony as to the remarks
of Young, Swisher, and Sternberg was uncontradicted and we find it
to be true, as did the Trial Examiner.
We find that by the statements of Young, Swisher, and Sternberg,
and by its action in depriving the strikers of their bylines, the re-
spondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
fC. The discharge of Lugo #
Leonard Lugoff was first employed in November 1931 on the Holly-
wood Citizen-News, and left in September 1932. Prior to that-em-
7 The record discloses the name of only one advertiser who voiced such objection, which
was directed against one employee.
8 The respondent contends that Killoran's reply to Young 's assertion that he could
not discuss Guild matters I relieves it of rosponsibility for his action. However, Young's
statement that he could not discuss Guild matters came only after he had clearly stated
that he could not trust the Guild members because of their past activities and in the
light of the preceding conversation , served only to remove any doubt Killoran might
possibly have entertained as to the import of his prior statement.
THE OITIZEN-NEWS 00MPAN'Y 517
ployment he had worked for both the Hollywood News and the
Hollywood Citizen, the papers which merged to form the present
Hollywood Citizen-News. After leaving the Hollywood Citizen-
News, Lugoff worked for several other newspapers. In January
1934, Lugoff was reemployed by the respondent as a circulation
solicitor. In August 1934, he was transferred to the position of clas-
sified-advertising solicitor, a position he retained until the time of
his discharge in March 1940.
Lugoff joined the Guild in October 1937. He did not take part
in the strike of 1938 and was expelled from the Guild for that reason.
On August 19, 1938, Lugoff was discharged by Tobin, classified-
advertising manager, because of "low production" or inadequate
sales .9
On August 22, 3 days later, Lugoff protested his discharge to
Palmer who reinstated him and placed him on probation until Jan-,
nary 1, 1939. Lugoff was not discharged in January 1939, nor was
he informed that his probation was continued.
In February 1939, Lugoff rejoined the Guild. At that time there
was but one other Guild member in his department, Helen Brichoux,
who had taken part in the strike. Lugoff became active in attempt-
ing to organize the employees in the classified advertising section.
In May he openly circulated a petition authorizing the Guild to
represent this group of employees. From the testimony of Tobin,
who admitted having ,heard "rumors" of Lugoff's petition, we are
convinced and find, as did the Trial Examiner, that by May 1939,
the respondent was aware of Lugoff's union activity. In June 1939,
accompanied by another salesman, Lugoff asked Young, the re-
spondent's business manager, for the establishment of guaranteed
weekly wages. Lugoff's testimony is uncontradicted that, in urging
their point, both he and his companion argued that dissatisfaction
with wages led to the growth of unions and guilds. Young granted
their request. On July 19, and frequently thereafter, Lugoff par-
ticipated in conferences with management as a Guild committee
member. At about the same time (in August) Lugoff engaged in
an argument with another employee whom he accused of spreading
a rumor that "the management was going to close down the plant
if the Guild in its negotiations for a new contract didn't act reason-
able." During this argument George Palmer, son of one of the
respondent's owners, interposed and declared, according to Lugoff's
testimony, that he "knew that (the rumor) was a fact and he was
9 Lugoff claimed that Tobin told him that he was discharged because "they had to cut
expenses." Tobin claimed that Lugoff was discharged "because his production had been
so low." Since Lugoff's subsequent reinstatement was "probationary ," we find, as did
the Trial Examiner , that Lugoff 's discharge was motivated by "low production" or
inefficiency.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willing to gamble on it ." We credit Lugoff 's testimony , as did the
Trial Examiner . In March 1940, Lugoff circulated - another petition
among employees in his department . At the time of his discharge
Lugoff was the only Guild member among the outside salesmen.
On March 26 , 1940, the Board issued its decision in the earlier
case, in which it found that the respondent had not discriminated
against the employees involved therein. On March 30 , Palmer dis-
charged Schlichter and Yeaman , the only employees reinstated under
the strike settlement agreement who remained in the respondent's
employ. At the same time , he sent Lugoff the following letter of
dismissal : '
MARCH 30, 1940.
DEAR MR. LUGOFF :
This notice is to terminate your services with us effective this
day. Your production does not justify your employment.
In its answer the respondent asserts that Lugoff was discharged
because ( 1) he was reinstated in 1938 "on the same ground as the
other employees who were reinstated pursuant to the Strike Settle-
ment Agreement" and that after the Board decision in the earlier
case, Lugoff was discharged "pursuant to the agreement under which
he had been reinstated"; and (2 ) "his services continued to be unsatis-
factory . . . during the period of his reinstatement."
In support of the respondent 's contention that Lugoff was dis-
charged "pursuant to the agreement under which he had been re-
instated ," Palmer testified that when Lugoff protested his discharge
in August 1938, he complained that "the strikers had been returned
to their jobs, that five people we had discharged for economy were
being reinstated until the end of the National Labor Relations Board
case and that he, Lugoff, had not gone on strike and he did not
believe that he should receive any less treatment than those who had
been on strike ." Palmer further testified that "since . . . by virtue of
our agreement we were taking other people pending decision, we saw
no reason why Mr. Lugoff shouldn 't be given equal consideration,"
and Lugoff was accordingly reinstated. After the Board decision
and the discharge of Schlichter and Yeaman, Lugoff was discharged,
Palmer stated , "because he had been reinstated because these other
people were being reinstated . They were now being let out and Mr.
Lugoff was in the same position as to unsatisfactory production as
he was and he should also be let out, for that reason he was let
go: Our obligation to Mr. Lugoff , to be fair with him on the basis
of dealing with the others, had ceased. The others were let off."
Lugoff denied that he had urged his reinstatement on the ground
that the respondent had reinstated , tthe strikers and the employees
whose discharge had precipitated the strike . Instead, he asserted
TffE CITIZEN-NEWS ooaVIPANY 519
that 3 weeks before his discharge he had told Tobin that he was
contemplating making a loan and inquired if his job was secure.
Tobin, Lugoff averred, assured him that it was and he proceeded to
make the loan. When he was discharged less than a month later,
Lugoff testified, he protested to both Tobin and Palmer against the
unfairness of the discharge after he had been induced to go into debt
on the respondent's assurance that his job was secure. It was on the
basis of this protest, according to Lugoff, that Palmer ordered his
reinstatement.'°
The terms of Lugoff's reinstatement are clearly set forth in the
letter notifying him of his reinstatement which provided :
AUGUST 22, 1938.
To : Mr. LUGOFF :
You will be retained in your present position, with final deci-
sion to be made on January 1, 1939. The intervening period will
be probationary.
T. H. Youxo,l1
Business Manager.
The respondent made no effort to explain why terms of reinstatement
opposed to those upon which it asserts Lugoff was reinstated should
be set forth in the letter.
In view of all the facts, we find that Lugoff's reinstatement in 1938
was not conditioned on, or connected with, the reinstatement of the
other employees or the Board decision in the earlier case, but instead
was conditioned solely upon his satisfactory work during the proba-
tionary period established by the letter of August 22, 1938. The
respondent's claim that Lugoff was discharged "pursuant to the agree-
ment under which he was reinstated" must be rejected.
In explaining the respondent's claim that Lugoff was discharged
because his "services continued. to be unsatisfactory . . . during the
period of his reinstatement," Palmer testified that if his work had
been satisfactory, the respondent would have retained Lugoff regard-
less of the alleged agreement under which he was reinstated. Accord-
ingly, Palmer stated, he ordered Young to investigate Lugoff's work
10 The surrounding circumstances support Lugoff 's version of the conference with Palmer.
Thus Tobin admitted that shortly before his discharge , Lugoff asked for assurance that
his job was secure, stating "that he owed some money or was going to incur a debt."
Athough Tobin denied giving Lugoff any assurance, it is significant that Lugoff proceeded
to make the loan. Furthermore, Lugoff claimed that when he was discharged , he pro-
tested to Tobin on the same ground on which be claims that he appealed to Palmer.
Supporting this claim is Tobin's twice repeated admission that Lugoff mentioned his
indebtedness at the time of his discharge . Although Tobin retracted that admission,
we do not credit the retraction . The fact that Lugoff protested his discharge to Tobin
on the ground that Tobin was violating his promise lends credence to Lugoff's claim
that he protested to Palmer on the same ground.
"Young was present during the conference between Palmer and Lugoff , and conferred
with Palmer on the advisability of reinstating • Lugoff.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the Board issued its decision in the earlier case, and upon receiv-
ing an unfavorable report, discharged Lugoff.
The respondent's claim that Lugoff's services were unsatisfactory,
like its alternative assertion that Lugoff was discharged "pursuant
to the agreement under which he was reinstated," is not supported
by the record.12 Lugoff was reinstated in August 1938 on probation.
At the conclusion of his probationary period, the respondent did not
discharge him or inform him that he was continued on probation.
Furthermore, although in the normal course of business it was the
duty of Tobin and Young to recommend discharges to Palmer and
after obtaining his approval make discharges, such practice was not
followed with respect to Lugoff. According to Palmer's own testi-
mony, Lugoff's discharge was occasioned by Palmer's departing from
his own customary business practice of leaving personnel matters
to subordinates and personally ordering an investigation of Lugoff's
work and personally discharging him on the basis thereof. More-
over, at no time during the 19 months following Lugoff's reinstate-
ment did Tobin and Young recommend Lugoff's discharge, although
it was their duty to do so if his work was unsatisfactory. Nor was
Palmer able to cite a single complaint he had received concerning
Lugoff's work during the period of his reinstatement. That Tobin
and Young were fully cognizant of the nature of Lugoff's work ap-
pears from their own testimony that they studied his record on three
or four occasions during the period of his reinstatement 13 Nor
could they have thought that their power to recommend Lugoff's
discharge was abrogated by Palmer's reinstatement of Lugoff in
1938. Lugoff's reinstatement was expressly made "probationary."
Furthermore as noted above, Tobin and Young testified that they
held several conferences about Lugoff's work during the period of
his reinstatement.
In support of its claim that Lugoff was inefficient, the respondent
relies primarily on Lugoff's alleged inadequate sales production.
However, only one of the respondent's four salesmen sold more adver-
tising than 'Lugoff. The respondent claims, nevertheless, that the
records of the salesmen are not comparable because the territories'
they serve furnish different problems and for this reason salesmen in
the different territories are paid at different- rates. The respondent
urges that Lugoff's record shows a more pronounced decrease from
' The respondent to support its claim that Lugoff was inefficient asserted that Lugoff
was once discharged by the Hollywood Citizen. There is no evidence that such discharge,
which occurred in September 1930, was for inefficiency. Furthermore, the respondent
twice hired Lugoff thereafter, including the one occasion when the Hollywood Citizen and
the Hollywood News merged and Lugoff, who had been working for the Hollywood News,
was employed by the Hollywood Citizen-News despite Palmer's admission that very few
of the Hollywood News employees were retained at that time.
13 In January, April, and August 1939 and possibly January 1940.
THD CITIZEN-NEWS COMPANY 521
its 1937 level than that of the other salesmen . Lugoff testified that
the decrease in his production was due primarily to the loss of three
accounts, two of which subsequently moved out of his territory.
Lugoff's production records, which showed that in April and May of
1938 his sales declined precipitately, support his assertion as well
as the respondent's contention of his inefficiency. It is thus apparent
that the production records, which admittedly were prepared after
Lugoff's discharge, are not conclusive. More significant, pn our
judgment, is the fact that although Tobin and Young were fully
aware of the nature of Lugoff's work for a period of 19 months, they
did not see fit to recommend his discharge 14
As further evidence of Lugoff's inefficiency, the respondent points
to the fact that Sellers, an inexperienced salesman, who' succeeded
Lugoff, sold as much advertising as Lugoff.15 Tobin, himself, depre-
cated the need for experience in selling advertising, stating that it
"required 90 per cent work and 10 per cent ability." Furthermore,
it is to be noted that when Sellers approximated Lugoff's production
record, he was given a raise in salary to that previously paid Lugoff,
which the respondent claims Lugoff did not earn.
The respondent also asserts that Lugoff was discharged because
his commissions failed to cover his guaranteed weekly minimum
salary. It is clear from the record, however, that other employees
frequently failed to earn their guaranteed salaries . Indeed the salary
of Sellers, Lugoff's successor, was raised to $24 per week, although
his commissions amounted to that sum on only three occasions 16
In addition the respondent asserts that Lugoff slept during work-
ing hours, failed to call upon prospective clients when requested to,
and played pin ball games during working hours. The evidence
:u In its exceptions the respondent urges that under an agreement with the Guild, it
refrained from making "economy discharges" during the 19 months Lugoff was retained
after his original discharge . The term "discharge . . . for economy reasons" is found
in the strike settlement agreement and the contract entered into at the time of the strike
settlement agreement The term obviously refers to a dismissal for economy , such as the
discharges involved in the earlier case, and does not refer to discharges for inefficiency.
Furthermore, it is clear from the record that other employees , both Guild members and
non-members , were discharged during the 19 months the respondent retained Lugoff. The
agreement to refrain from "economy discharges " accordingly fails to explain the respond-
ent's action in retaining Lugoff for 19 months if he was inefficient.
15 During his employment prior to the hearing Sellers' average sale of advertising
amounted to 620 lines per week, exactly the amount sold by Lugoff during the last 9
months of his employment and slightly less than the amount sold by Lugoff during the
corresponding period of the preceding year. Although Sellers' average constitutes an
increase over the average maintained by Lugoff during the first 3 months of 1940, two
of the respondent ' s three other outside salesmen showed greater increases in their terri-
tories than Sellers showed in Lugoff's during the same period
16 In its exceptions the respondent points out that Young testified that he had warned
Lugoff that he would have to maintain earnings commensurate with his guaranteed salary.
Lugoff denied this. Since the respondent did not require its other employees to earn the
guaranteed salary, and since the notice that the respondent posted announcing the terms
and conditions of the respondent 's guaranteed salary policy made no mention of the neces-
sity of earning the guaranteed salary, we credit Lugoff 's denial.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduced plainly discloses that the events in question occurred some
time before Lugoff's discharge and were either known to Tobin and
Young at the time . they considered his record and decided that it did
not merit discharge, or were not known to them until after Lugoff's
discharge in March 1940.
As noted above, in ordering Young to investigate Lugoff's work
and in personally discharging Lugoff in 1940, Palmer departed from
his long-standing business practice of delegating to subordinates per-
sonnel problems involving the discharge of employees. Palmer ex-
plained his failure to follow his normal business practice on the
ground that he "had been . . . carrying the brunt of the National
Labor Relations Board activities ... and I was the logical one to
give the decision . . . when the Board handed down its decision."
Palmer's explanation would be applicable had Lugoff been reinstated
on the same terms as the employees reinstated under the strike set-
tlement agreement and thereby been impliedly protected against\dis-
charge during the pendency of the Board's decision . However, the
letter of August 22, 1938, clearly shows, and we have found, that such
was not the case. Lugoff was most active in organizing the respond-
ent's unorganized employees and at the very time of his discharge
was engaged in circulating a petition to that end. We have found
above that the respondent had clearly revealed its hostility toward
the Guild. Under such circumstances , Palmer's participation in the
field of personnel problems and his selection for discharge of Lugoff,
the employee most active in organizing the respondent 's unorganized
employees, takes on added significance . Under the circumstances we
are impelled to the conclusion , as was the Trial Examiner, that Lu-
goff was discharged not because of the reasons advanced by the
respondent but because of his activities in behalf of the Guild.
We find that the respondent , by discharging Leonard Lugoff on
March 30, 1940, discriminated in regard to his hire and tenure of
employment , thereby discouraging membership in the Guild and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
D. The discharge of Karl Schlichter
Pursuant to the strike settlement agreement referred to in Section
III A , above, the five discharged employees were . restored to the
respondent's pay roll . Prior to March 30, 1940, three of these five
employees voluntarily left the respondent 's employ and on that day
Elizabeth Yeaman and Karl Schlichter were notified by letter that
their employment was terminated. Yeaman's discharge is not in
issue.
THD CITIZEN-NEWS COMPAINTY 523
Notification to Schlichter read as follows :
This notice is to terminate your services with us effective this
day. We consider you incapable of the type of production we
desire from a man in your post.
The complaint in the instant case alleges that Schlichter was dis-
charged on March 30, 1940, because of his union activities. The
respondent denies this allegation but alleges that Schlichter was dis-
charged (1) in accordance with the agreement of July 30, 1938, and
(2) because his services continued to be unsatisfactory to the re-
spondent during the period of his reinstatement.
Palmer testified that he received notification of the Board decision,
above referred to, on March 28, and that when no resignation from
Schlichter had been received by March 30, he was discharged.
Palmer further testified :
... my interpretation of the Board's decision was that "the
Board dismissed the action so far as the question of the regu-
larity of the discharge of these five people was concerned. That
was the order, as I read the order, dismissing that action.
Therefore, there was no action pending, 'the Board had held it
was legal and dismissed the action, and the day the Board signed
the order there was no action then, nothing in existence charging
us with the unlawful discharge of the five employees.
Palmer admitted that he did not communicate with the Guild prior
to the actual discharge of Schlichter or attempt to find out if the
Guild would accept the Board's Decision and Order. At the hearing
and in its brief, the Guild contended, in effect, that the respondent
acted in bad faith by taking summary action with respect to
Schlichter before the Board decision had been accepted by the Guild.
We do not consider that the dispute as to whether the respondent's
discharge of Schlichter was consistent with or in violation of the
terms of the strike settlement is an issue for our determination.
Since we found that the discharge in 1938 was not in violation of
the Act, it is clear that the respondent was under no obligation to
reinstate Schlichter thereafter.
It is plain, however, from the answer to the complaint and the
testimony of Palmer, that the respondent's position with respect to
Schlichter's discharge does not rest solely upon its contention that
the Board decision absolved it from obligations incurred under the
agreement. Palmer testified :
... if Schlichter's services were satisfactory ... he would have
been kept.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within a few days after discharging Schlichter , the respondent in-
formed the Guild not only that he had been dismissed under terms
of the agreement but that "his services were not satisfactory."
In the earlier case the Board found that "There is no evidence that
Schlichter was a particularly active member of the Guild. " ' In 1938,
however, following his reemployment , he became treasurer and in
1939, chairman of the Citizen -News unit of the Guild. He par-
ticipated in a number of grievance meetings with the management.
Upon his return to the respondent 's pay roll, Schlichter did not
resume his previous duties as promotion manager . He was assigned
to assist Sternberg , who was in charge of the national -advertising
department . In many respects Schlichter 's new work differed from,
that which he had previously performed . However , the record con-
tains no convincing evidence that this assignment to new tasks was
discriminatory in character . All the new tasks fell within the usual
requirements of the department . We, like the Trial Examiner, are
not persuaded that any of his assignments were onerous , menial, or
imposed upon him because of his union membership.
It is clear from the testimony of both Sternberg and Schlichter
that the latter was dissatisfied with his new work. Sternberg's
testimony is uncontradicted that , when he suggested to Schlichter
that "he get out and call on some accounts and do some selling,"
Schlichter replied that , "he wasn't interested in selling or learning
to sell ." Sternberg complained to Business Manager Young , accord-
ing to his testimony , that he would "like to have a man working
with me that was interested in the department and in getting along,
going somewhere in there." Sternberg testified that when Schlichter
was first assigned to the national department , he advised him, "The
thing (the strike ) is all over now and there is plenty of work for
both of us , lots of it, and if we just forget all about it and get
in and dig that he would be able to accomplish quite a lot," but that
Schlichter replied, "'It wouldn't be of any use because if the Guild
loses the case I will be out of here anyway ."' Schlichter denied
making this statement. After observing the two witnesses on the
stand, the Trial Examiner failed to credit Schlichter 's denial. We
find, as did the Trial Examiner, that the conversation occurred
substantially as Sternberg testified.
Neither during the strike nor thereafter did the respondent assign
anyone to the position of promotion manager . Promotion work
has been variously distributed among department heads and for a
period in 1939 and early 1940 certain special features were prepared
by a free-lance publicist . The Board found in the earlier case that
the discharge of Schlichter "whose job was a newly created one and
whose work was not immediately productive in a concrete way, was
THE OITIZEN-NEW9 OOMPAN'Y 525
not an unreasonable move for an employer to make when faced with
losses and the need for retrenchment." There is no evidence in the
record of these proceedings to support a finding that the respondent
discriminated against Schlichter by not reopening the position from
which the Board found he was justifiably discharged in 1938.
We find, as did the Trial Examiner, that the evidence does not
support the allegation in the complaint that Schlichter's discharge
in March 1940 was because of his union membership and activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B and C, 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 certain unfair
labor practices, we shall order that it cease and desist therefrom,
and that it take certain affirmative action which we find will effectuate
the policies of the Act.
We have found that the respondent discriminatorily deprived the
strikers of their bylines, after the strike. It is not clear from the
record whether or not the respondent has restored their bylines to
the strikers. We shall order the respondent to restore their bylines
to these employees in the event that it has not already done so. We
have found that the respondent discriminatorily discharged Leonard
Lugoff. We shall order the respondent to offer him immediate and
full reinstatement to his former or a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and privileges,
and to make him whole for any loss of pay suffered as a result of the
respondent's discrimination, by paying to him a sum of money equal
to the amount he would normally have earned as wages from
March 30, 1940, the date of the discrimination against him, to the
date of the offer of reinstatement, less his net earnings during such
- period 17 and the severance indemnity he received at the time of his
discharge."'
17 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. R B 440. Monies
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing "findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Los Angeles Newspaper Guild is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment and terms of employment of Leonard Lugoff, thereby discourag-
ing membership in the Guild, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8.
(3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated in regard to the hire or
tenure of employment of Karl Schlichter, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact aiid conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor 'Relations Board hereby orders that
the respondent, The Citizen News Company, Hollywood, California,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Los Angeles Newspaper Guild,
or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining or other mutual
aid and protection, as guaranteed in Section 7 of the Act.
received for work performed upon Federal , State, county , municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
1 An employee upon discharge is entitled to severance indemnity , a sum of money which
varies in accordance with length of service. Lugoff received such severance indemnity
upon his discharge.
THE CITIZEN-NEWSI COMPANY 527
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Leonard Lugoff immediate and full reinstatement to
his former or a substantially equivalent position without prejudice
to his seniority and other rights and privileges;
(b) Make whole Leonard Lugoff for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to that which he normally
would have earned as wages from the date of his discharge to the
date of the offer of reinstatement, less his net earnings during said
period and the severance indemnity received at the time of his
discharge;
(c) Restore to the strikers the bylines of which they were deprived
following the strike of May 1938;
(d) Post immediately in conspicuous places throughout its plant
in Hollywood, California, and maintain for a period of sixty (60)
days from the date of the posting, notices to its employees stating
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a), (h), and (c) of this Order; and (3)
that the respondent's employees are free to become or remain mem-
bers of the Los Angeles Newspaper Guild, and that the respondent
will not discriminate against any employee because of membership
or activity in that organization;
(e) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent engaged in unfair labor practices with respect
to the hire and tenure of employment of Karl Schlichter, be, and
it hereby is, dismissed.