The Houston Chronicle Publishing Co.

National Labor Relations Board - Board Decisions

Dec 19, 1952

101 N.L.R.B. 1208 (N.L.R.B. 1952)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are interested." In recommending such order I am mindful of the fact
that each of the Stargels had long service in the Respondent's employ and that
Leppard testified he would have hired them at the time of their application had
vacancies existed.
In view of the nature of the unfair labor practices committed, I shall also
recommend that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
PI N. L. R. B. v. J. G . BOawell Co., supra ; South Carolina Granite Company, 58, NLRB
1448, 1468-1469 , enforced 152 F. 2d 25 (C. A. 4).
THE HOUSTON CHRONICLE PUBLISHING COMPANY and AMERICAN
NEWSPAPER GUILD, CIO, AND ITS LOCAL 113 . Case No. 39-CA-157.
December 19,1952
Decision and Order
On December 11, 1951, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed a
statement of exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.' The Board has considered the Intermediate Report,' the
Respondent's statement of exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following additions and modifications.
1 At the hearing the Trial Examiner correctly overruled the Respondent 's objection to
the receipt of evidence on the ground that the record does not show the charging Union's
compliance with the filing requirements of Section 9 (f), (g), and ( h) of the amended Act.
Moreover , we are administratively advised that the local Union , its parent Union , and the
International Union with which it is affiliated were, at all pertinent times, in compliance
with the filing requirements of the amended Act. N. L. R. B. v. Red Rock Co., 178 F. 2d
76 (C. A. 5), certiorari denied 341 U. S. 950.
1 The Trial Examiner referred inaccurately to the Respondent 's average daily out-of-
State circulation . The record shows that the Respondent sells out of State approximately
1,294 daily, and 2,000 Sunday, newspapers . This correction does not affect our con-
currence in the Trial Examiner 's finding that the. Respondent is engaged in commerce
within the meaning of the Act.
101 NLRB No. 198.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1209
1. This case arose out of certain events occurring within a 2-week
period in October 1950 , affecting employees of the Respondent 's news-
paper, The Houston Chronicle. At that time the Respondent changed
its method of city distribution from a direct employee system to an
independent contractor system. The gravamen of the complaint is
that the Respondent made this change for the purpose of defeating
its employees ' organizational activities . Specific consequences of the
change, including coercion and interference with the employees' right
of self-organization, mass discharge of the city circulation department
employees, and a refusal to bargain with the employees' majority rep-
resentative , are alleged in the complaint as the unfair labor practices
sought to be remedied.
Before the change of system, the Respondent distributed news-
papers in the city through its city circulation department, in which it
employed approximately 90 employees. This distribution function
depended largely on 48 district managers, who delivered the news-
papers to carrier boys for delivery to subscribers, assumed responsi-
bility for collections, and assisted the carriers in soliciting new ac-
counts. Eleven crew managers assisted the district managers and
also worked as carrier boys. Three regular dockboys loaded the
newspapers on the Respondent's trucks. Other employees, who prin-
cipally delivered newspapers to various parts of the city, included
5 rackmen, distributing to street racks and newsdealers, 2 street sales-
men, distributing to street vendors , and 2 dealer boys, distributing to
news dealers, newsstands, and business establishments. Fourteen office
clerks maintained records, answered telephones, and received new sub-
scriptions, cancellations, and complaints. All these nonsupervisory
employees were paid on a regular weekly salary basis and received a
yearly bonus, a Christmas bonus, pension plan benefits, and paid va-
cations. Rackmen received, in addition, a car allowance and a com-
mission from the sale of newspapers from the racks they serviced.
On October 20, 1950, the Respondent abolished the city circulation
department , discharged all nonsupervisory employees , and started
distributing city newspapers through independent contractors. The
basic functions of the department were thereafter carried out by 49
such contractors, of whom 43 were former district managers, and 6
were former supervisors . The Company "assigned" its individual
agreements with the many delivery carrier boys to the now independent
contractors for each city area. It also arranged for the services of a
trucking company , Blue Bonnet Express , to load and haul its news-
papers . Some of the clerical work , such as the receipt of complaints,
was still performed at the Respondent 's office.
The first step in the district managers ' concerted activity had pre-
viously occurred on October 9, 1950, when they requested Anderson,
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the department manager, to meet with them as a group to discuss a
wage increase. Anderson immediately reported to Vice-President
Butler, who told him to meet with the men but to make no wage com-
mitment. The next day, October 10, Butler forwarded a memorandum
to Anderson, in which he referred generally to increased operating
costs, said that the newspaper had "not done so well" in home-deliv-
ered circulation, suggested that they explore the relative values of
the contractor and district manager systems, and asked for an analysis
and early report "because it might be, that the time is approaching that
we will be forced into changing our system." Anderson read the mem-
orandum to the men at their scheduled meeting with him on October
11. He told them that their total income, including vacations, salary,
and bonuses, was more than that received by the employees of the
Houston Press (a unionized newspaper). He added that he would
report to Butler and keep the men informed, but that he did not think
they would get any raise. Immediately the employees telephoned the
Union's international representative, Hieken, and met with him the
same evening. That night, and at subsequent union meetings on
October 13, 16, and 18, a number of city circulation department em-
ployees signed up with the Union. On October 16, Anderson an-
nounced the Respondent's decision to change to the contractor system
"as quickly as possible"; he read to the men a memorandum from
Butler directing Anderson to make the changeover by November 1
if possible, but not later than November 15.
The record is replete with evidence showing that the Respondent
knew of its employees' organizational activities before October 16,
when this initial decision was announced. On October 11 Supervisor
Bales told Brien that if the men organized, the Chronicle would "go
independent"; Supervisor Harrell on October 12 said to a group of
employees that he did not think the Union could do any good, "that
the Chronicle could go independent and it would kill the Union";
Supervisor Brockman on October 13 said to Hagg, "Of course, you
boys are not going to make it. You know what is going to happen.
Mr. Anderson is going to bring the independent contractor system
into effect." Brockman added that efforts to organize were "like
knocking your head against a stone wall, not going to do any good."
On October 15 Supervisor Bales told a group of employees that Butler
would not allow the employees to organize into a union and that the
Chronicle would go independent before such organization took place.$
• Further proof of earlier knowledge by the Respondent is shown by more detailed
evidence fully reported in the Intermediate Report , but which need not be repeated here.
For example , Bales asked Brien on October 11 whether he was going to join the Union
and whether the men were going to organize ; Manager Anderson on October 11 ques-
tioned Ottis Kyle as to whether he was going to the union meeting; Brockman on October
13 asked Hagg whether the men were really going over to the Guild this time ; and
Anderson again on October 13 told Weeks that the Company usually had a different attitude
toward employees after they became unionized.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1211
As soon as it learned of the proposed change-on October 16 the
Union wrote to the Respondent claiming recognition as majority rep-
resentative and asked to bargain concerning any change. In reply
Butler said only that the change was necessary for economic reasons;
he ignored the request to bargain. The Union renewed its demand on
the 19th; in two telephone conversations with Butler, Hieken reas-
serted the Union's majority status among the city circulation depart-
ment employees, offered to prove it by showing Butler the union
membership cards, and requested a bargaining conference on that day,
particularly with respect to the change of system. Butler put off any
conference with Hieken until October 21 on the ground that he was
too busy before then. However, immediately after the second tele-
phone conversation on the 19th, and on the advice of his attorney,
Butler decided to accelerate the changeover date because, as he testified
at the hearing, with Hieken demanding that no further steps be taken
toward the change, the Respondent would be forced to refuse to bar-
gain with him on a unit basis that included the district managers.
"And therefore," added Butler, "I felt very definitely there would be
some interference from the union, in now making the switchover, and
I didn't feel we should have the interference from the union or any-
body else." On the next day, October 20, the Respondent discharged
all employees of the city circulation department 4 As he had promised,
Butler met with the union representatives on the 21st, and rejected
the Union's request for recognition and bargaining on the ground
that any unit which included the former district managers was
inappropriate.
If the record contained nothing more than the bare sequence of
events set forth here, it would lead strongly to the conclusion, alleged
in the complaint, that the Respondent's reason for changing the system
was to frustrate its employees' attempts to exercise the right of self-
organization guaranteed by the Act. Although its officers had con-
sidered and talked about the contractor system, they took no steps
whatsoever toward instituting it until after the district managers took
their first concerted action. At first, Butler told Anderson only to
study the advisability of changing the system, and authorized him
to make the employees aware of what might happen. As the employees
persisted in their resolve, and as their activities progressed to a more
formal union stage, the Respondent, in turn, announced a definite
decision to abolish their jobs, albeit at a later date. And then, when
the union activities reached a final step-demand for bargaining with
' Seven district managers , enjoying a trip to a Texas State Fair in Dallas , as winners
of a Chronicle circulation contest , were given termination notices when they returned
on October 28.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrable majority status-the Respondent accelerated the change-
over and forthwith rendered any further union activity futile.
The conclusion of illegal motivation does not, however, rest only
upon the inference arising from the concomitant variations in the re-
spective acts of the employees and the Respondent. During the very
period when the Respondent, as it asserts, was evaluating the economic
advantages of the contractor system, its supervisors were unequivo-
cally telling the employees that a change of system would indeed be
the Respondent's reaction to their union demands. The Trial Ex-
aminer found, and we agree, that each of these warnings, as well as
the numerous instances of interrogation of employees concerning their
union activities and sympathies listed in the Intermediate Report, con-
stituted a separate violation of the basic proscription contained in
Section 8 (a) (1) of the Act. They therefore stand as direct evidence
of the Respondent's unlawful purpose. Moreover, the uniformity, as
well as the widespread incidence of these coercive statements, belie
any suggestion that each might have been the idle speculation of any
particular supervisor.
Our finding of a causal relationship between the union activities
and the changeover also finds support in the precipitate manner in
which it was accomplished. The Respondent's haste, and its conse-
quent neglect of important aspects of the new system, show something
less in execution than a long-considered and carefully evolved busi-
ness plan would normally require. The contractors started work under
quickly drawn agreements which left the critical element of their pay
rates entirely open because, as Anderson testified, "that took quite a
bit of calculations." He merely assured the men that while he could
not tell what their rate would be, they would get "a fair shake." It
is difficult to perceive how cost savings could have have been an im-
portant factor when the Respondent did not even know, when it made
the change, exactly how much the independent contractors were to be
paid. Blue Bonnet Express Company, which was to haul the news-
papers in place of the discharged employees, was pressed into service
with the Respondent's trucks on lease. It furnished services under an
oral "gentlemen's agreement," and no written contract was made until
about 10 days later. During the first month after the change, the
Respondent continued to issue carrier and dealer bills, cutting its name
from old bill forms. For the remainder of October, the contractors
were permitted to keep the money collected from the newsboy carriers,
in addition to the newly established contractor payments.
Against this clear and substantial evidence showing that the Re-
spondent changed its distribution method for the purpose of defeating
the employees' concerted activity, the Respondent insists that the
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1213
change was made only for economic reasons. In support of this
defense it asserts, in substance, that the economic considerations were
increased operating costs under the old system and the reduction in
its lead of city home-delivered circulation over two other Houston
newspapers, the Post and the Press.
As to the first of the economic aspects of the two systems-operating
costs-no factual evidence was offered, although the hearing took
place 8 months after October 1950. On this most important element
of the Respondent's defense, the record therefore contains only the
unsupported assertion of its officers that operating costs were rising
under the old system. We believe that documentary evidence in sup-
port of this assertion was vital and was clearly within Respondent's
power to produce. In the absence of any comparative cost figures, we
are left with no frame of reference in which to evaluate the merits of
this defense. The considerable monthly payments to Blue Bonnet Ex-
press Company for trucking services are meaningless, if they cannot be
compared to the expense for the same functions under the old system.
As to direct labor costs, first for the district managers and now for
the independent contractors, no facts were offered to show any saving
under the new system. Rather, the record does show that the Respond-
ent calculated the contractor rates to include the old salary of the
district managers, the yearly bonuses, car allowance, pension benefits,
and Christmas bonuses, plus an additional sum, all intended to yield
the contractor a total income in excess of that earned by him as a
district manager. We also note that the Respondent did not divest
itself entirely of incidental distribution expenses, for it still bears such
costs as complaint and carrier bill forms, subscription contests, trips
and other prizes awarded to both contractors and carrier boys, and
clerical expense in receiving subscriber complaints. Nor did the
Respondent attempt to show, with respect to any of the foregoing cost
items, a comparison between its costs under the old direct employee
system and the comparable costs of other newspapers then using the
contractor system.
As to the Respondent's second alleged economic consideration-de-
cline of its lead position among the local newspapers in city home
delivery-the record is likewise barren of any persuasive evidence.
In support of his assertion that the changeover was made to increase
circulation, Butler's testimony shows that with respect to city home
deliveries for the 6-month period ending March 31, 1950, the
Chronicle's leadership had been reduced by approximately 2,500 daily
over the Houston Post and by approximately 4,500 over the Houston
Press. He also said that in October 1950 he knew that the figures for
the 6-month period ending September 30, 1950, would show a further
loss in the Chronicle's leadership by an additional 1,000 daily or more
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over each of these newspapers.5 But nowhere in the record was any
showing made of how the new system was calculated to remedy the
problem of the Respondent's reduced lead. For aught that appears
here, the comparative gains of other newspapers may have been at-
tributable to factors entirely apart from the method of distribution.
Particularly may this have been true because the Press, which was
making the best progress, was using the very district manager system
which the Respondent discarded s Moreover, the Houston Post, a
morning newspaper, is not a direct competitor of the Chronicle, which
is distributed in the afternoon; therefore a comparison with its cir-
culation may not be entirely apt.
Anderson testified that an earlier talk with the circulation manager
of the Port Arthur News, which used the contractor system, had in
part also influenced the decision. However, the record shows that the
circulation of the Port Arthur News declined somewhat between Sep-
tember 30, 1949, and September 30, 1950, and that, oddly enough, this
fact was not offered to Anderson, nor did he solicit it. Further, the
Respondent used the contractor system for its country circulation.
The figures for various subdivisions of this activity are not clear or
precisely reconcilable on the record. They do show, however, that
while in some places there was an increase in circulation, in others
circulation either was static or in decline. And finally, the average
daily city home deliveries for the period ending March 31, shows
a decline of about 1,000 from the preceding 6-month period.
In sum, the record does not support the Respondent's contention that
it changed its city circulation system for reasons of good business
practice, nor indeed that the contractor system was economically more
desirable for the Houston Chronicle. It is true that Anderson made
general inquiries before October 1950, and reported to Butler that
several other newspapers in the area were "extremely happy" with the
contractor system. However, he never gave Butler any comparative
cost figures or other factual information, nor did Butler request any.
According to Butler, "The only comparison we were seeking was how
well they liked the system, compared with the system they used to
have, . . . whether or not it was more productive and economical
5 Butler gave the following figures for daily circulation average of home deliveries for
the 3 Houston newspapers z
Chronicle Post Press
a-mo. period ending Sept . 30, 1949_______________________ 108, 904 87 , 751 52, 186
March 31 , 1950------------- ------- 108, 435 89, 663 56, 180
Sept . 30, 1950__-__-__----- ------- 111, 875 94, 442 60, 190
March 31 , 1951______________________ 110, 703
• Other figures in evidence , which must have been available to the Respondent in 1950,
point more strongly to possible economic advantages of the district manager system.
Between 1947 and 1950, the Chronicle 's daily city circulation increased from 102,265 to
124,157 , or about 21 percent . During the same period the circulation of the Press rose
from 59,826 to 79 ,407, an increase of 35 percent.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1215
all-around, ..." We cannot view these conclusory statements as
substantial evidence on the principal issue of the case.
Of course, we do not presume to substitute this Board's judgment for
that of the Respondent in matters of business practice, and it may well
be that the contractor distribution system has advantages, for it does
appear that some other newspaper companies use it. The sole ques-
tion here is whether, on the record before us, the complaint allega-
tion of discriminatory motivation has been proved. We have care-
fully considered all the evidence, and we conclude, in view of the
direct and substantial evidence pointing clearly to an illegal purpose,
and the absence of persuasive proof of any contrary explanation, that
the Respondent changed the system because its city circulation de-
partment employees chose to bargain collectively, and in order to avoid
its statutory obligation to deal with them as a group. Accordingly,
we find that on October 20, 1950, by discharging the city circulation
department employees named in the complaint-48 district managers
and 11 other employees-the Respondent violated Section 8 (a) (3)
and 8 (a) (1) of the Act as to each employee.?
2. We agree with the Trial Examiner's finding that the Respondent
committed a further unfair labor practice in refusing to bargain with
the Union. As stated briefly above, and as set forth in greater detail
in the Intermediate Report, on October 17 the Respondent refused the
Union's request to discuss the proposed change on the ground that the
decision had already been made and that it was purely an economic
matter. Four days later, on the 21st, after it had discharged the
employees, it again refused to bargain, this time because the Union
still considered the district managers as part of the bargaining unit.
We have found that in this case the Respondent contracted out the
city circulation work as a countermeasure to defeat the employees'
efforts to form a union. The Board has consistently held that an
employer may not, in these circumstances, divest itself of the statutory
duty to discuss intended business changes.8
Equally without merit is the Respondent's contention that it was not
required to bargain on the 21st because the unit in which the Union
demanded recognition included persons who were no longer its em-
'+ As the remaining employees of the city circulation department were not named in the
complaint , we make no finding as to them.
The complaint alleges , and the Trial Examiner found , that the Respondent discrimina-
torily selected 5 employees among the district managers as those who would not be given
contracts , and thereby committed further violations of Section 8 (a) (3). In view of our
finding that all 48 district managers were discriminatorily discharged , we find it unneces-
sary to consider this allegation of the complaint . Even assuming that the Respondent
violated the Act by denying contracts to certain district managers because of their out-
standing union activities, our remedial order would be the same as to all of them. We
therefore do not adopt the Trial Examiner 's findings , conclusions, and recommendations
as to this portion of the complaint.
8N. L R. B. v The Salley Plywood Company, Inc., 199 F . 2d 319 ( C. A. 4), enforcing
as modified 94 NLRB 932, 969.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. This argument is predicated on the assumption that the
discharge of the city circulation department employees was lawful
in the first instance. The argument falls, of course, in the light of
our finding that all the employees were discriminatorily discharged
and therefore never lost their status as employees .9 After discrimi-
natorily ousting the employees comprising the heart of a bargaining
unit, the Respondent can hardly be heard to say that it is not required
to bargain because it has no employees. To sanction its refusal to
bargain in these circumstances, would permit the Respondent "to
profit from a stubborn refusal to abide by the law." 10 Accordingly, we
find that on and after October 19, the Respondent unlawfully refused
to bargain with Union as the majority representative of the employees
in the city circulation department and thereby violated Section 8
(a) (5) of theAct.11
The Remedy
The unfair labor practices found are, clear, and therefore no question
arises as to the proper remedy required to dissipate the coercive effect
of the prohibited conduct. In accordance with established Board
policy, we shall order that the Respondent cease and desist from com-
mitting such violations of the Act, reinstate the 59 discriminatorily
discharged employees, make them whole for any loss of pay
they may have suffered, and bargain with the Union on request.
These extensive violations of the Act convince us that the Respondent
has been so opposed to the principles of the Act that there is danger
of recurrence of violations in the future. In order to make effective
the interdependent guaranties of Section 7, therefore, we shall order
the Respondent to cease and desist from in any other manner inter-
fering with , restraining , or coercing its employees in their exercise
of the rights guaranteed by the statute.
9 N. L R. B. v. Sifers , 171 F . 2d 63 ( C. A. 10) ; N. L. R. B. v. Cape County Milling Co.,
140 F. 2d 543 ( C A. 8) ; see also Section 2 (3) of the Act which reads, in pertinent part:
"The term `employee ' . .. shall include any individual whose work has ceased .. .
because of an unfair labor practice . . . ' ; N. L. R. B . v. Eva-Ray Dress Mfg . Co., 191 F.
2d 850 ( C. A. 5), enforcing 88 NLRB 361.
10 Franks Bros. Company v. N. L. R. B., 321 U. S. 702, 705.
11 We find it unnecessary to decide whether the Union represented a majority of the
employees in the city circulation department at any time before October 19 . On October
19 and 21, the Respondent refused to accept the Union 's offer to prove its majority by a
showing of union membership application cards. This refusal occurred despite the fact
that Respondent had no doubt of the representative status of the Union . Anderson testi-
fied that when he saw Hieken's letter requesting bargaining ( on October 17), his first
thought was that possibly practically all the district managers had joined the Union. The
record shows , and we find , that on the 19th the Union filed a representation petition with
the Board and, in support of the petition , submitted union membership application cards
signed by 57 employees in the unit of 86 employees. The Union's majority was clear on
that date. We therefore do not adopt the Trial Examiner 's findings that the Respondent
Also violated Section 8 ( a) (5) before October 19.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1217
The Respondent suggests that because a great majority of the dis-
charged employees are gainfully occupied by arrangement with the
Houston Chronicle, the Board ought not order their reinstatement to
the "employee" status as district managers which they formerly held.
It also contends strongly that as establishment of the independent
contractor system of distribution was an operational change in its
business methods, the Respondent may not now be compelled to set
up the city circulation department anew. In the circumstances of
this case, these arguments are but restatements of the assertions urged
as defenses to the very unfair labor practices charged. The change
of system was not a step in the ordinary conduct of the Respondent's
business, but rather, as we have found, a device used to deny to the
employees the right of self-organization. It was precisely the aboli-
tion of the old department, and the consequent change in the status
of the district managers from employees to independent contractors,
that is the heart of the unlawful conduct here. What the Respondent
urges as a remedy issue, therefore, is that the Board permit it to con-
tinue to profit from the unlawful objective which its illegal conduct
was intended to achieve. In effect, it suggested that no remedial
order be issued.
We are not unmindful of the practical aspects incident to restora-
tion of the old department, and have considered possible other means
of accommodation that would effectuate the objectives of the Act 2
The change will be no more cumbersome than it was in October 1950.
It does not appear that reinstatement to employee status of the great
number of employees here involved would be possible except by re-
storing the old system.ls Certainly, continued extinction of the bar-
gaining unit would only assure the success of the Respondent's refusal
to deal with the Union and render any order to bargain an empty
gesture. The status quo in this case can only be restored by reestab-
lishment of the old system 14 We must, therefore, follow the Trial
1 0 See, for example , Newton Chevrolet , Inc., 37 NLRB 334, and Watlick tf Schwalm Co.,
95 NLRB 1262 , enforced 198 F . 2d 477 ( C. A. 3), providing alternative methods of
compliance.
" See N. L. R. B. v Bank of America, 130 F . 2d 624 ( C. A. 9), enforcing 26 NLRB
198, requiring reinstatement of employees to one department of the employer 's business
which the employer had converted to a contractor system in order to undermine its
employees ' union activities
See also Ford Motor Company, 31 NLRB 995, 1099-1100 , setting forth the Board's long-
established reinstatement policy. ". . . the purpose of the order to offer reinstatement
is not only to restore the victim of discrimination to the position from which he was
unlawfully excluded , but also, and more significantly , to dissipate the deeply coercive effects
upon other employees who may desire self-organization , but have been discouraged there-
from by the threat to them implicit in the discrimination."
Ad General Motors Corporation , 59 NLRB 1143 , enforced 150 F. 2d 201 ( C. A. 3), ordering
the return of hourly paid employees to their salary classification from which they had
been transferred in violation of the Act ; Butler Brothers, 41 NLRB 843, enforced 134 F. 2d
981 (C. A. 7), certiorari denied 320 U S 789 , ordering the employer to take "whatever
steps may be necessary , including modification or cancellation " of its contract with a
business concern under which the employer 's employees were transferred.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's recommendation and order the Respondent to revert to its
direct employee method of city distribution's
Order
Upon the entire record in the 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 Houston
Chronicle Publishing Company, Houston, Texas, its officers, agents,
successors, and assigns shall :
1. Cease and desist from:
(a) Questioning employees concerning their union membership or
activities.
(b) Threatening employees with the loss of their jobs if the union
organization is successful.
(c) Discouraging membership in American Newspaper Guild, CIO,
and its Local 113, or any other labor organization of its employees
by discharging or refusing to reinstate any of its employees or by
discriminating in any other manner in regard to their hire and tenure
of employment or any term or condition of employment.
(d) Refusing to bargain collectively with American Newspaper
Guild, CIO, and its Local 113, as the exclusive bargaining represen-
tative of the Respondent's employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment.
(e) 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 American Newspaper Guild,
CIO, and its Local 113, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of 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 condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Reestablish within sixty (60) days from the date of this Order
the district manager system of city circulation.
(b) Offer to those employees listed on Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially
equivalent positions and make them whole for any loss of pay they
may have suffered by reason of the Respondent's discrimination
15 Phelps Dodge Corporation v. N. L. it. B., 819 U. S. 177, 194.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1219
against them in the manner described in the Intermediate Report en-
titled "The Remedy." 16
(c) Upon request, bargain collectively with American Newspaper
Guild, CIO, and its Local 113, as the exclusive bargaining agent of
all its employees in the bargaining unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and
if an understanding is reached, embody such understanding in a signed
agreement.
(d) Post at its building in Houston, Texas, specifically in the city
circulation department, copies of the notice attached hereto as Ap-
pendix B 17 Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being signed by the
Respondent's representative, be posted by the Respondent and main-
tained by it for sixty (60) days thereafter in conspicuous places,
including all places where notices 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 ma-
terial.
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
Charles M. Averyt
Edward J. Berry
Rohan W. Bonham
D. R. Brandt
A. H. Breitkreuz, Jr.
Harry Brien
Nathan Brien
William U. Brynum
Byron E. Conley, Jr.
C. M. Culver
Lewis I. Duke
Norman L. Eaton
John E. Graham
Charlie Gullo
Hubert A. Hagg
Appendix A
Clifton L. Harrell
Deckard L. Hibbs
Russel H. Hibbs
Arthur E. Hodde
Robert E. Holcomb
Robert Lee Holt
Robert J. Hughes
Gerald W. James
Cecil L. Johnson
Ottis W. Kyle
Raymond C. Lacy
Larry F. Little
Jack D. Loftin
William McCall
George W. Melton, Jr.
is F. W. Woolworth Company, 90 NLRB 289 . With great respect for the opinion of the
Court of Appeals for the Fifth Circuit in N. L. R. B. v. Seven- Up Bottling Co. of Miami,
Inc., 196 F. 2d 424 , certiorari granted October 13, 1952, the Board is constrained to adhere
to its views in the Woolworth and Seven -Up cases until the Supreme Court of the United
States has had an opportunity to pass on the question.
17 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the
words "A Decree of the United States Court of Appeals , Enforcing an Order."
242305-53-78
1220 DECISIONS OF NATIONAL
Malon Henry Meyer
Norman Chas. Meyer
Alfred Miles, Jr.
Leo S. Nelson
Keith F. Palmer
Johnnie J. Patterson
Ralph F. Peterson
Bernard L. Phillips
Herman D. Robbins
Errett A. Rogers
Erich N. Rosenthal
Robert M. Schrader
J. Edward Scott
Frank M. Sheffield, Jr.
Buck J. Shuler
LABOR RELATIONS BOARD
Homer D. Skinner, Jr.
Jas. O. Stewart
Floyd W. Weeks
W. R. Suber
A. N. Morgan
Preston Gullo
Melford J. Miller
L. E. Derrington
Austin L. Minton
Roland C. Lambert, Jr.
LeRoy Clifford
Louis C. Martinez
George A. Farquhar
John A. Rhode
Appendix B
NOTICE TO ALL EMPLorE s
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist AMERICAN NEws-
PAPER GumD , CIO, and its Local 113, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1221
Charles M. Averyt Malon Henry Meyer
Edward J. Berry Norman Chas. Meyer
Rohan W. Bonham Alfred Miles, Jr.
D. R. Brandt Leo S. Nelson
A. H. Breitkreuz, Jr. Keith F. Palmer
Harry Brien Johnnie J. Patterson
Nathan Brien Ralph F. Peterson
William U. Bynum Bernard L. Phillips
Byron E. Conley, Jr. Herman D. Robbins
C. M. Culver Errett A. Rogers
Lewis I. Duke Erich N. Rosenthal
Norman L. Eaton Robert M. Schrader
John E. Graham J. Edward Scott
Charlie Gullo Frank M. Sheffield, Jr.
Hubert A. Hagg Buck J. Shuler
Clifton L. Harrell Homer D. Skinner, Jr.
Deckard L. Hibbs Jas. O. Stewart
Russel H. Hibbs Floyd W. Weeks
Arthur E. Hodde W. R. Suber
Robert E. Holcomb A. N. Morgan
Robert Lee Holt Preston Gullo
Robert J. Hughes Melford J. Miller
Gerald W. James L. E. Derrington
Cecil L. Johnson Austin L. Minton
'Ottis W. Kyle Roland C. Lambert, Jr.
Raymond C. Lacy LeRoy Clifford
Larry F. Little Louis C. Martinez
Jack D. Loftin George A. Farquhar
William McCall John A. Rhode
George W. Melton, Jr.
WE WILL bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is :
All employees of the city circulation department includ-
ing district managers , rackmen, crew managers , regular dock-
boys, clerks, part-time clerks, dealer boys, street salesmen,
and the stenographer , but excluding all supervisors as defined
in Section 2 (11) of the National Labor Relations Act.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the-
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or-
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
THE HOUSTON CHRONICLE PUBLISHING COMPANY,
Employer.
By --------------------------------------------------
(Representative ) ( Title)
Dated---------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On October 23, 1950, a charge of violation of Section 8 (a) (1), (3), and (5)
of the National Labor Relations Act, 61 Stat. 136, was filed on behalf of the
American Newspaper Guild, CIO, and its Local 113,1 herein called the Union,
against The Houston Chronicle Publishing Company of Houston, Texas, herein
called the Respondent. Upon this charge the General Counsel of the National
Labor Relations Board caused his complaint dated June 4, 1951, to be issued
alleging the commission by the Respondent of the aforesaid unfair labor prac-
tices. A first amended charge was filed by the Union on June 12, 1951. Copies
of the charges, complaint, and notice of hearing were duly served upon the
Respondent and the Union.
With respect to unfair labor practices the complaint as amended at the hear-
ing alleges in substance that the Respondent:
1. On or about October 17, 1950, and at all times thereafter, refused to bargain,
collectively with the Union, the designated representative of its employees in an
appropriate unit.
2. On or about October 19, 1950, to date, discriminated against all employees
formerly classified as district managers by abolishing the said classifications and
positions and requiring all such employees to execute individual contracts pro-
viding for the performance of the same duties the district managers had per-
formed before the above-mentioned change, thereby depriving the said employees-
of certain benefits incident to employee status.
3. Discharged 16 named employees.' and has since refused to reinstate them
because of their affiliation with and activity on behalf of the Union and to dis-
courage membership in and avoid bargaining with the Union.
As amended at the hearing.
' The employees , all of whom were allegedly discharged on or about October 20, 1950, are
listed in the complaint as amended at the hearing , as follows : Hubert A . Hagg, Ottis W.
Kyle, F. W. Weeks, Nathan L. Brien . E A. Rogers , W. R. Suber , A. M. Morgan , Preston
Gullo, Melford J. Miller , L. E. Derrington , Austin L. Minton , Rolland C . Lambert, Jr.,.
LeRoy Clifford, Louis C. Martinez , George A. Farquhar , and John A. Rhode.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1223
4w Since on or about October 1, 1950, to date, by its officers, agents, and em-
ployees has interfered with, restrained, and coerced its employees in the exer-
else of the rights under the Act by various enumerated acts.
The Respondent's answer duly filed, in part admitted certain allegations of the
'complaint but denied the commission of any unfair labor practices. It affirm-
atively alleged that on or about October 20, 1950, it changed its system of city
circulation from that of an employer-employee district manager system of city
circulation to that which is commonly known as an "Independent Contractor"
system of distribution ; that such change was not made for the purpose of
thwarting and avoiding bargaining with the Union and precluding its employees
from exercising their rights under Section 7 of the Act, but was made solely
because in the judgment of Respondent's officials it was felt that the "Independ-
ent Contractor" system of distribution as compared with the district man-
ager system of city circulation would be more efficient, more economical, and
more productive.
Pursuant to notice, a hearing was held in Houston, Texas, from June 19 to
June 28, 1951, inclusive, before the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner . All parties were represented by counsel,
participated in the hearing, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses , to introduce relevant evidence, to argue
the issues orally upon the record, and to file briefs and proposed findings and
conclusions . Briefs and proposed findings and conclusions were received from
the Union and the Respondent on August 20, 1951, and have been duly
-considered.
During the course of the hearing, various motions were made by counsel for
the Respondent to dismiss the complaint on the merits . There motions, where not
denied or granted at the hearing, are disposed of by the following findings and
recommendations.
Among other procedural contentions raised by the Respondent at the hearing
is one attacking this proceeding on the grounds that the record being silent as
to compliance of the Union with Section 9 (f), (g), and (h) of the Act and in
the absence of a positive showing of compliance by the Union with the filing
requirements of such section of the Act, there is no basis for the issuance of
a formal charge by the Board. There is no merit to this contention. See
McComb Manufacturing Company, 95 NLRB 596, and cases cited therein.
Neither the Supreme Court nor any court of appeals which has considered the
question has ever held that the filing provisions of Section 9 (f), (g), and (h) go
to the Board's jurisdiction. On the contrary, the courts of appeals which have
considered this issue have squarely held "that the Board was not required to allege
and prove compliance, and that compliance with such provisions was not jnris-
dictional." N. L. R. B. v. Red Rock Co., 187 F. 2d 76, 78 (C. A. 5), certiorari
-denied , 341 U. S. 950; N. L. R. B. v. Wiltse, 188 F. 2d 917, 924 (C. A. 6) ; N. L. R. B.
v. I. F. Sales Co., 188 F. 2d 931; N. L. R. B. v. Greensboro Coca-Cola Bottling Co.,
180 F. 2d 840, 844-845 (C. A. 4) ; E. B. Law and Son v. N. L. R. B., (C. A. 10)
decided October 25, 1951. The Respondent also objected to the General Counsel's
motion to amend the complaint to include 11 additional employees allegedly
discriminatorily terminated on or about October 20, 1950, and to the receipt
in evidence of the amended charge filed with the Board on June 12, 1951, on the
grounds of Section 10 (b) of the Act. The objections were overruled, the
General Counsel's motion to amend granted, and the amended charge received
in evidence. See Cathey Lumber Company, 86 NLRB 157, 158-163; enforced
185 F. 2d 1021, vacated and set aside on grounds immaterial here 189 F. 2d 428,
(C. A. 5). The General Counsel moved to amend the complaint in several other
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respects, the motions were granted over the objections of Respondent's counsel.-
A motion by the General Counsel, made at the end of the hearing, to conform,
the pleadings to the proof with respect to formal matters such as dates, the
spelling of names and the like, was granted without objection. At the close of
the hearing the General Counsel and counsel for the Respondent presented oral
argument to the Trial Examiner. Subsequent to the close of the hearing, a
motion was received from counsel for the Respondent to correct the record in
certain respects. Copies of the motion were served on the other parties. No
objections having been received, the motion is granted.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
The Houston Chronicle Publishing Company is a Texas corporation having
its principal office and place of business in Houston, Texas, where it is engaged
in the publication, sale, and distribution of a newspaper, called the Houston.
Chronicle. The Houston Chronicle is a daily and Sunday newspaper and has
an average daily circulation of approximately 183,000, of which approximately
17,000 are shipped to points located outside the State of Texas, and a Sunday
circulation of approximately 201,000, of which approximately 2,000 are shipped
to points located outside the State of Texas. The Respondent in the course and
conduct of its business operations, purchases various raw materials in excess
of $500,000 annually that are shipped from points located outside the State of
Texas, to its plant in Houston. The Respondent uses news and feature services
such as AP, INS, New York Times, Chicago Tribune, Reuters, The New York
Daily News, The Chicago Daily News, and Kings Features which collect their
material in all parts of the country and transmit it to the Respondent in Houston,
Texas. It receives annually in excess of $250,000 in advertising fees from
national advertisers, which advertisements originate from points outside the
State of Texas. Radio Station KTRH, a separate corporate entity is wholly
owned by the Respondent. It is licensed by the Federal Communications Com-
mission and is an affiliated station of the Columbia Broadcasting System. It
utilizes and purchases programs from the Columbia Broadcasting System and
sells national and local advertising. The undersigned finds that the Respondent
is engaged in interstate commerce within the meaning of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
American Newspaper Guild, CIO, and its constituent Local 113, are labor
organizations within the meaning of the Act, admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background events
In October 1948, the Respondent's city circulation department district man-
agers met at the Auditorium Hotel in Houston to discuss means to obtain a
pay raise. Floyd W. Weeks, district manager in the Respondent's employ since
1946, testified that the employees discussed the question of organizing into a
union. He was called upon to speak at the meeting and answered questions re-
garding this subject because he had previously worked at the Houston Press''
8 The city circulation department employees at the Houston Press were represented by
a union.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1225
Weeks also testified that at about the time of the October 1948 meeting, Edgar
Anderson , the Respondent 's city circulation manager , talked to him about a union
representing the Respondent 's city circulation department employees remarking
that he did not see how a union could help them because of the "good conditions"
at the Respondent 's plant. Anderson also told Weeks that he had a very happy
organization and would like to see it remain that way-"sort of a loose knit
organization."
Nathan Brien commenced his employment with the Respondent in 1938. He
was promoted to district manager in 1941 . He left the Respondent 's employ
in 1947 , and subsequently worked for the Houston Press in a similar position.
In August 1948 he returned to the Respondent 's employ . Brien testified that
at the time the men were attempting to organize a union in October 1948, Ander-
son inquired if he had gone to the meeting and if he was going to join the group.
Although Brien told Anderson that he was not participating in the union affairs
at that time , Anderson questioned him regarding the amount of the raise the
men wanted and how much they thought they could get. Brien also testified
that shortly after his conversation with Anderson , he discussed the advantages
and disadvantages of union organization among the Respondent 's employees with
Harold Bales , a city circulation department supervisor . Bales, according to
Brien , stated the Respondent would go "independent" and not allow a union
to be organized among the city circulation department employees . Brien further
testified that about the same time he talked with Wenton Little, another of Re-
spondent 's city circulation department supervisors , regarding the Union and
the latter said the Respondent would put the "Independent Contractor " system
of distribution into effect just as the Houston Post had done previously.
Hubert Hagg , a district manager since 1947, testified that the morning following
the October 1948 meeting his supervisor , D. B. Brockman , stated he understood
the men had met but there was no point in the men joining the Union because
Anderson would not allow it ; that Anderson would install the independent
contractor system and the men were "just knocking their heads against a stone
wall." 4
Errett A. Rogers, a district manager in the Respondent 's employ since 1945,
another of the alleged discriminatorily discharged district managers, spoke in
favor of the unionization of employees ( district managers) at the 1948 meeting
in the Auditorium Hotel.
4 It is the Respondent 's contention that its city circulation department supervisors of
whom there were six and who carried the said title on the Respondent 's payroll were not
supervisors within the meaning of the Act, that therefore the Respondent cannot be
charged with any statements made by them violating the Act. As hereinafter found, the
details of which will be discussed more fully, the Respondent 's city circulation department
supervisors were supervisors within the meaning of the Act at all times material herein.
Little denied telling Brien in the fall of 1948 that if the district managers continued to
attempt to organize into a union , the Respondent would go independent the same way
as the Post had done . Bales categorically denied the statement attributed to him by
Brien in the fall of 1948, to the effect that if the union efforts continued the Respondent
would go independent . Although Brockman denied having a conversation with Brien in the
fall of 1948 In which he asked Brien what the men had decided at the meeting at the
Auditorium Hotel and denied further that he told Brien that Anderson would install the in-
dependent system before he would allow the men to organize into the Guild , the under-
signed is certain that this was an inadvertence on the part of Respondent 's counsel and
that the questions to Brockman were with respect to Hagg 's testimony regarding con-
versations with Brockman in 1948. The undersigned will consider that Brockman's
denials were with respect to Hagg's testimony as above set forth . Anderson testified
that be was not aware of the meeting of the district managers at the Auditorium Hotel
at the time it was held and specifically denied Brien 's testimony attributed to him. Weeks,
Brien , and Hagg impressed the undersigned as the more credible witnesses and their
version of the events and statements hereinabove set forth are credited.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the October 1948 meeting, the district managers were given an
increase in pay and their organizational activities ceased .5
The events described in this section occurred during a period of time prior to
that covered by the complaint. Consequently, no findings of unfair labor prac-
tices will be made with respect to them. However, the Respondent's conduct
in relation to these events is indicative of its attitude towards the organizational
activities of its employees and toward the Union herein involved. The aforesaid
conduct is therefore summarized for the purpose of shedding some light as it does
upon the activities of the Respondent which do fall within the allegations of
the complaint. Of. N. L. R. B. v. May Dept. Stores Co., 154 F. 2d 533 (C. A. 8),
enforcing May Dept. Stores Co., 59 NLRB 976, certiorari denied 329 U. S. 725;
N. L. R. B. v. Link Belt Co., 311 U. S. 584, 588; Marlin Rockwell Corp. v.
N. L. R. B., 133 F. 2d 258, 259-60 (C. A. 2) ; N. L. R. B. v. National Seal Corp.
127 F. 2d 776, 778 (C. A. 2) ; N. L. R. B. v. Trojan Powder Co., 135 F. 2d
337, 338 (C. A. 3). certiorari denied 320 U. S. 768; N. L. R. B. v. Eclipse
Moulded Products Co., 126 F. 2d 576. 579 (C. A. 7).
B. Events in October 1950
While there is some evidence in the record that the Respondent's district
managers began to talk about union organization early in 1950, because the
Houston Press employees had been given a raise, there is nothing to indicate
that they took any other affirmative steps toward unionization until October
1950.
Brien testified that on October 9, he and Lewis Duke, another district manager,
discussed the possibility of arranging a meeting between the district managers
and Anderson, where they could talk about an increase in pay. Duke saw
Anderson, and the latter agreed to hold such a meeting with the district man-
agers on the morning of October 11.
Anderson met with the district managers at about 11 a. in. on October 11. The
meeting lasted about an hour. Brien testified he and several other district man-
agers spoke about an increase in pay. Brien mentioned that the district man-
agers at the Houston Press were making more money than the Respondent's
employees. Anderson, according to Brien, told him that if he was not satisfied
with the salary he was receiving he could go back to the Press! Brien also tes-
tified that Anderson said he would talk to Butler about a raise for the district
managers and keep them informed, remarking that he did not think one would
be forthcoming but he would let them know and would hold another meeting
to discuss developments regarding the pay raise. Anderson read to the gathered
district managers a memorandum he had received the day previously from
Butler, to which was attached a story from the publication , Editor and Pub-
lisher, of October 7. The memorandum noted the fact that the Racine Wisconsin
Journal Times employed only 3 district managers to supervise the servicing of
271 carrier routes ; that the salary paid district managers was between 50 and
P J. H. Butler , executive vice president of the Respondent, testified that increases in
pay were given the Respondent 's district managers in 1948 , 1947 , and 1948 . /rhe latter
increase in pay , he stated , was given without knowledge of the meeting held in the
Auditorium Hotel and he stated further the said meeting had nothing to do with the raise.
Anderson did not specifically deny making the statements attributed to him by Brien,
as above set forth, at the meeting on October 11 . Anderson admitted that he sometimes
used a pet phrase, "You'd better go back to the Press for a post-graduate course" when
talking with district managers who were former Houston Press employees , but denied that
he used such a phrase at any time during the month of October 1950 , or about the time
union activities started.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1227
65 dollars a week ; that they did not receive bonuses ; and the car allowance was
about one-third of the car allowance granted Respondent's district managers.
Butler's memorandum further called to Anderson's attention the fact that in
the past several months they had had a number of conversations regarding the
increased operating costs of the city circulation department and posed the ques-
tion whether it would be more efficient and more economical to consider the
individual contractor system which the Houston Post inaugurated some years
ago. It noted there were 2 schools of thought along this line, but because of the
tremendous increase in the operating costs of the Respondent's city circulation
department and also because it had not done too well in home-delivered cir-
culation during the past year, Butler thought it might be well to explore in detail
the relative values of the 2 systems. Butler closed his memorandum with a
request to Anderson for a complete analysis and an early report, because as he
stated : "It might be that the time is approaching that we will be forced into
changing our system." Anderson, according to Brien, advised the meeting that
he did not care for the independent contractor system of distribution, that he
was proud of the organization he had, that he had spent years building it up and
wanted to keep it intact if it was at all possible. Anderson also stated that
the district managers were making a nice salary, received vacations, bonuses
every 3 months, a Christmas bonus, and when all these items were taken into
consideration their total income was more than the district managers at the
Press were receiving? The Respondent in an effort to impeach Brien's credi-
bility adduced evidence to show that he left the Respondent's employ without
warning in September 1947, apparently in good health. He, shortly thereafter,
applied at the Beeville branch of the Texas Unemployment Compensation Com-
mission for an unemployment allowance under the Servicemen's Readjustment
Act of 1944, setting forth that he resigned from his last place of employment
"because of health being bad." Brien, while admitting that his health was good
when he left the job, explained that he was under terrific nervous tension at the
time and had visited a doctor who prescribed for this condition. He thought it
would help him to leave Houston and look for something in a smaller town which
was not as fast moving as the district manager's job. It was under these cir-
cumstances that he gave the above reason to the Compensation Commission.
Brien received allowances, but registered for a job and actually received em-
ployment, which he accepted. The undersigned accepts Brien's explanation.
Brien impressed the undersigned as a reliable witness. He testified in a forth-
right manner and in considerable detail. The undersigned finds him to be a
credible witness. Anderson's denial of Brien's testimony hereinabove set forth
is not credited.
At the conclusion of the meeting with Anderson, a group of district managers
left the Respondent's office and went across the street to the Magic Chef Cafe,
a coffee shop, where they usually gathered before going out on their respective
routes. Included in this group were Weeks and Brien. A discussion ensued
about the advisability of organizing into a union . Brien told the men he had
the telephone number of Alexander Hieken, the international representative
of the Union, and inquired of Weeks if he should call Hieken to arrange for a
meeting. Upon Weeks' affirmative reply, Brien called Hieken, who scheduled
a meeting for that night to be held at the courthouse in Houston . Word of this
was passed around among the district managers.
Brien testified that after the meeting in the coffee shop he returned to the
loading dock at about 1 : 30 p. m . and while in the process of loading newspapers
on his truck, Harold Bales , his supervisor , asked what Anderson had said at
I The Press employees were operating under a union contract at that time.
1228 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
the meeting about an increase in pay for the men. Bales also inquired if the
men were going to organize and if Brien was going to join the Union. Brien
replied he did not know, whereupon Bales said if the men organized the Respond-
ent would go independent. Bales testified he did not know of any union activi-
ties among the city circulation department employees during the period October
1 to October 16, 1950. He categorically denied making the statement attributed
to him by Brien on October 11. Brien impressed the undersigned as the more
reliable witness. Bales' denials are not credited and it is found that the con-
versation between Brien and Bales on October 11 on the loading dock took place
substantially as testified by Brien.
Just before 8 p. in. on October 11, District Manager Ottis Kyle returned to
the office from his district to place some collection money in a box and proceed
to the union meeting. Kyle testified that Anderson was leaving the circulation
department office as he entered and inquired if he was going to the meeting.
Kyle answered "Yes" Anderson categorically denied Kyle's testimony. He
testified he did not know of any meeting and only learned of a later union meet-
ing when he saw a notice posted on a bulletin board in the office. The under-
signed does not credit Anderson's denial or his testimony regarding his knowl-
edge of union meetings and finds that the inquiry was made as testified to by
Kyle.
Of the 24 district managers who attended the first union meeting, 22 signed
membership application cards. A committee of 6 was elected,' 1 from each
of the then existing zones to keep the district managers in their particular zone
informed on the current union activities.
On the morning after the first union meeting, District Managers Robert Hol-
comb, Russell Hibbs, Clifton Harrell, and Buck Shuler, and their supervisor,
William Harrell, were in their office when a discussion started about the Union.
Supervisor Harrell, according to the undenied , credited testimony of Holcomb,
stated be did not think the Union could do any good for the reason "that the
Chronicle could go independent and it would kill the Union." He also remarked
that Anderson never wanted a union in the city circulation department and
he (Supervisor Harrell) knew Anderson did not want a union.
On the morning of October 13, before District Manager Hubert Hagg obtained
his newspapers for delivery, he met Supervisor D. L. Brockman on the stair-
way in the circulation department section of the Respondent's building. Brock-
man inquired if the men were really going to go over to the Guild this time.
Hagg replied that it look "pretty strongly that way." Brockman, according to
Hagg , remarked, "Of course, you boys are not going to make it. You know what
is going to happen. Mr. Anderson is going to bring the independent contractor
system into effect." Brockman stated further that it would not do the men any
good to continue their efforts toward union organization as it was "like knocking
your head against a stone wall, not going to do any good." Brockman denied
Hagg 's testimony. The undersigned does not credit Brockman's denial and
finds that the conversation between Hagg and Brockman took place substantially
as set forth hereinabove.
Brien testified that on October 13, he returned to the office from his district
to lock up some collection money and stopped by Anderson's office to say "Hello."
Anderson invited Brien into the office. Brien told Anderson he was concerned
about his participation in union activities, mentioning that he had been elected
to the union committee and was endeavoring to enlist other employees to member-
ship . He inquired what Anderson thought of his activities and what the Re-
a The committee men elected were Weeks as chairman , Brien, Kyle, Hagg , Sheffield, and
Bynum.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1229
spondent would do if the men organized into a union. Anderson, according to
Brien, said he did not know what would happen and did not know "what
Jesse Jones would do if the Chronicle went union." Brien also testified that
Anderson inquired if he had any union membership application cards in his
pocket and upon his affirmative reply, Anderson asked how many cards he had
signed up and Brien answered he did not know. Anderson also told Brien
that he probably would be "hurt" by his activities in the Union. The conversa-
tion ended with Anderson telling Brien that he was a good district manager and
Anderson was satisfied with his work. Anderson denied Brien's testimony and
in fact testified he did not know "a thing in the world" about the union activity.
He stated he never asked any of the employees about their union activities.
The undersigned does not credit Anderson's testimony, and finds that the events
and conversation on the evening of October 13 took place substantially as testi-
fied to by Brien.
A couple of days after the first union meeting, Weeks and his supervisor,
Harrell, were in Anderson's office to discuss business! Weeks testified that
after they talked about their business matter Anderson said, "We might as
well talk about this other thing" and the discussion got around to unions.
Anderson asked Weeks why he favored a union and what benefits he thought
he might derive from a union organization. He told Weeks that the Respond-
ent's district managers were being paid as well as the district managers on
other newspapers and compared the pay with the salaries received by the dis-
trict managers at the Houston Press. Anderson, according to Weeks, said he
did not want the city circulation department to go union and commented that
it just couldn't work very well on a time clock, adding that if the employees
-organized it would be necessary for them to punch a time clock. When asked
what he hoped to gain by going union, Weeks replied that they would be able
to negotiate for raises and he felt that unions were responsible for the higher
standard of living that the employees were then enjoying. Anderson asked
Weeks why he did not return to work at the Houston Press. In reply, Weeks
stated that he believed he could, but that he liked the Chronicle much better.
Anderson thereupon commented "Well, there you are." Anderson also stated
that the Respondent usually had a different attitude toward employees after
they became unionized.
Anderson did not deny that a conversation took place in his office with Weeks
and Supervisor Harrell. He testified that be never made the statement that he
did not want the city circulation department to go union and that if the de-
partment went union the attitude of the Respondent toward the men would
be changed.
Weeks testified under subpena of the General Counsel. Although he had
several lapses of memory during his testimony and at times was hesitant in
answering questions, his testimony on the whole was in detail and convincing
to the undersigned and is credited.1°
® The exact date of this discussion is not clear in the record. At one point Weeks
testified the conversation took place sometime between October 11 and 20. At another
point he stated it was a couple of days after the first union meeting was called. When
Weeks was asked if anything was said about an independent contractor system at this
meeting he stated there wasn't anything understood about it at this time. Since the
announcement of the independent contractor system was made on October 16, it appears
obvious that the meeting Weeks testified about was prior to October 16, and must have
taken place either on the 13th or 14th of October, and the undersigned so finds.
ne Although Harrell testfied as a Respondent witness he was not questioned regarding
the October 13 conversation in Anderson' s office when he and Weeks were present. His
only testimony regarding Weeks was that he was a good district manager.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A second union meeting was held on the night of October 13 at the Union's
headquarters , with an increased attendance over the first meeting . On Sunday,
October 15 , District Managers Lloyd Johnson , Herman Robbins , and Nathan
Brien were seated with Supervisor Harold Bales in the Magic Chef Cafe dis-
cussing generally the Union 's campaign progress and how many employees had
signed up for membership when Bales, according to Brien , said that Mr. Butler
would not allow the employees to organize into a union and that the Respondent
would go independent before such organization took place . Bales categorically
denied Brien 's testimony herein . He also testified that he never mentioned,
Butler's name in the conversation of October 15, at the Magic Chef Cafe. The
undersigned does not credit Bales ' testimony regarding the conversation of
October 15.
On October 16, Anderson received the following memorandum from Butler,
which he in turn transmitted to the district managers at their regular meeting:
Re: THE INDEPENDENT CONTRACTOR DISTRIBUTION SYSTEM
In further reference to our previous exchange of memos and viewpoints
and following your report of your latest investigation of the Independent
Contractor System as it is operated on other newspapers, I am convinced
that it is more economical and also offers more opportunity for an efficient
and more productive service than we are using at the present time.
Therefore, I think we should change over to the Independent Contractor
System as quickly as possible. I suggest you make every effort to effect
this changeover as of November 1 if possible, but if you cannot quite get
ready by that time, make the change by November 15.
The primary considerations in working out a contract with an independ-
ent contractor should be his reliability, his experience, efficiency , and senior-
ity in service. I do not think we should take any one of these considerations
as a guide in selecting the contractors, but you should consider all four
of these qualifications as a whole.
I am sure you have quite a few men who now are acting as district man-
agers who could fill the requirements , and if so, I think you should give
them the first opportunity for an independent contractor's contract.
I am having contracts prepared and as soon as they are in final form,
I will furnish you with a supply.
At about noon on October 18, Brien testified, he was talking with employee
Culver and Supervisors Brockman and Bales when Anderson approached the
group and , addressing Brien , said , "Well, Moses , I guess you will have to go
back to the Press for a postgraduate course." ' Brien replied "Yes, Sir, I will."
As previously noted, Anderson admitted the use on occasion of his pet expression
regarding the postgraduate course at the Press for former Press employees. He
denied, however, making the statement attributed to him by Brien on October 18.
His denial is not credited.
Shortly before the union meeting scheduled for the night of October 18, Brien,
was in the city circulation department offices discussing economic conditions
generally with Anderson , the latter 's assistant , Allen Joiner , and Supervisors
Harrell and Wenton Little, when the conversation veered to the union meeting
scheduled to be held that night . Brien testified that Supervisor Harrell inquired
if everyone was going to attend. Brien answered he thought they would.
Supervisor Little, according to Brien, wanted to know if the men would go,
31 Moses was a nickname for Brien.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1231
union . Brien replied he did not know but that the discussions at the meeting
that night would be a determining factor . During the course of the conversation
Brien testified he was "kidded" several times about having to go back to the
Houston Press for a postgraduate course. When the conversation broke up
Brien stated he walked to the front door with Anderson and asked the latter
if he would like to know the results of the meeting. Anderson, according to
Brien, replied that he did not care whether anyone told him anything since he
would know the results anyway. Anderson denied telling Brien that he would
know the results of the October 18 meeting. Supervisor Harrell remembered the
conversation in the city circulation department offices shortly before the October
18 union meeting and admitted that the Union was discussed . He testified
however that he did not recall Anderson stating to Brien he would know the
results of the meeting. It should be noted in this regard that Brien testified
Anderson made the remark to him while they both were walking through the
front door. Under the circumstances it is most likely that Harrell did not hear
that part of the conversation between Anderson and Brien. Anderson's denials
are not credited. Neither Supervisor Harrell nor Supervisor Little denied
Brien's testimony regarding their inquiries. Brien's testimony is credited and
it is found that the conversation between Brien, Anderson, and Supervisors
Harrell and Little took place substantially as testified to by Brien.
During the course of the day on October 18, the Respondent distributed forms
to its city circulation supervisors and district managers upon which they were
to indicate whether or not they desired a contract on an independent con-
tractor basis. The form noted that the changeover was contemplated for No-
vember 1, and since considerable bookkeeping mechanics would be involved it
was requested that all those who wished to be considered for independent con-
tractor contracts turn in the form to Anderson by 6 p. in. on October 18.
About 100 persons attended the October 18 union meeting held at the court-
house in Houston. Among these were city circulation and editorial employees as
well as 5 of the 6 city circulation supervisors. Although the complaint does
not specifically allege that the attendance of the Respondent's city circulation
supervisors constituted surveillance, evidence was adduced by the General
Counsel regarding this and the matter was fully litigated at the hearing. Weeks
admitted that he invited the supervisors to attend the union meeting. No evi-
dence was adduced by the General Counsel to show that the Respondent re-
quested its supervisors to attend or that it received reports of the meeting. The
undersigned finds therefore that the attendance of the city circulation super-
visors did not constitute surveillance of the meeting. See Mellin-Quincy Mfg.
Co., Inc., 53 NLRB 366.
On October 19 Supervisor Bales was seated at the zone table in the city
circulation department office with District Managers Gullo, Hughes, Graham,
Duke, Culver, and Brien when, according to Brien, Supervisor Bales asked if
he knew the employees who had not yet signed union cards. Brien replied that
he did not. With the assistance of several other district managers they de-
termined by a process of elimination that eight employees had not yet signed
cards and Brien wrote the names on a slip of paper. Bales asked Brien for
the list which Brien handed him. Brien further testified that no regular busi-
ness of the Respondent was carried on during this meeting. Bales denied that
he ever asked Brien or any other employee who had not signed union cards.
Bales' denial is not credited.
On October 19, Butler and Anderson met with the Respondent's attorney, Mr.
Huggens, and it was decided to accelerate the changeover to independent con-
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor system of distribution from November 1 to October 21. As of the close of`
business on October 20, the Respondent terminated the services of its district
managers ,12 as well as the rackmen, dockboys, and a crew manager.
On the morning of October 21, the Respondent installed the independent con--
tractor system. Contracts as independent contractors were given to 43 of the-
Respondent 's district managers and to the 6 supervisors.13
Weeks testified that in an endeavor to find out his future status with the
Respondent he attempted to see Anderson at about 6 p. in. on October 20, but
was told to return at 8 p. in. Weeks told Anderson that if he was "going to get
the ax" he wanted to know it and that it was pretty "nerve racking" to have to-
wait. Anderson replied that what the boys were doing to him was also nerve-
racking.
Brien had an appointment to see Anderson at 5 p. m. on October 20, to discuss
his future status. Because Anderson was busy and Brien had to go out to his
district to meet some of the carrier boys, be left without seeing Anderson but
returned to the office later that evening. Brien testified he then saw Anderson
and inquired if he was one of the men who was going to be let out. Anderson
replied that he was and added "It had to be that way." Brien told Anderson
he did not think it was right for the Respondent to treat him in that manner.
Anderson, according to Brien, said that he did not think so either but there was-
no alternative, that Brien had brought it on himself and that was all there was
to it. Anderson testifying regarding his version of this conversation admitted
he spoke with Brien late in the evening on October 20, after he distributed the-
termination notices to the men. He denied he made the statements attributed to
him by Brien. He explained that he told Brien there was a simple arithmetic
problem involved, that he had 49 contracts to offer and there were 54 men to
choose from, thus making it necessary for the Respondent to let out 5 men. He
stated further that he might have added that he was sorry that it had to happen
to Brien. Brien admitted that the arithmetic problem was mentioned to him by
Anderson. The undersigned does not credit Anderson' testimony in this regard
and finds that the conversation took place as testified to by Brien.
On October 21, Weeks saw Anderson and pleaded for his Job. When he asked
Anderson why he was not given an independent contractor contract, he was
told that he was a fine district manager, that Anderson liked him, but he could
not tell him why he was not given a contract.
In addition to Weeks and Brien, the Respondent did not offer independent
contractor contracts to District Managers Kyle, Hagg, and Rogers.
The foregoing instances of interrogation and threats made simultaneously
with the employees' efforts to organize into a union during October 1950, reveal
2 Anderson testified that 41 district managers received termination notices on October
20, and 7 who were in Dallas, Texas, attending the Texas State Fair at the expense of
the Respondent, having won new subscription contests, did not receive their termination
notices until the close of business on October 23. Included in the 7 were Kyle and
Rogers who did not receive contracts as independent contractors.
" The contract provided for the sale by Respondent to the independent contractor of
daily and Sunday copies of the Houston Chronicle to be paid for by the independent con-
tractor on or before the tenth day of the next succeeding month . irhe independent
contractor agreed to regularly and promptly deliver the newspaper to all of his customers;
and to use his best efforts to promote and establish the circulation of the Houston
Chronicle. The contracts specifically provided that the mode, manner, methods, and means
employed by the independent contractor in the performance of a contract shall be of his own
selection and under his sole control and direction. Both parties reserved the right to,
terminate the contract upon 30 days' written notice to the other party.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1233
clearly that Respondent followed the same pattern which it used to thwart its
employees concerted activities several years before.14
On the basis of the record as a whole, the undersigned concludes and finds
that by the following enumerated acts the Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7
of the Act, in violation of Section 8 (a) (1) thereof :
(a) Supervisor Bales' interrogation of Brien on October 11 as to whether
the district managers were going to organize into a union and his inquiry re-
garding Brien's joining the Union.
(b) Supervisor Bales' statement to Brien on October 11 that the Respondent
would go independent if the employees organized.
(c) Anderson's inquiry of Kyle on October 11 if he was going to the union
meeting.
(d) Supervisor Harrell's threat to employees Holcomb, Hibbs, Clifton Harrell,
and Shuler "that the Chronicle could go independent and it would kill the
Union."
(e) Supervisor Brockman's inquiry of Hagg if the district managers were
really going to go over to the Guild this time and his statement that organiza-
tion would never be achieved because Anderson would install the independent
contractor system.
(f) Supervisor Brockman's remark to Hagg that the continued efforts of
the district managers toward union organization was "like knocking your head
against a stone wall, not going to do any good."
(g) Anderson's interrogation of Brien on Octob(;r 13 as to whether he had
union membership application cards in his possession and the number of em-
ployees he had signed up.
(h) Anderson's statement to Brien that he would probably be hurt because
of his union activities.
(i) Anderson's statement to Weeks that if the employees organized it would
be necessary for them to punch a time clock.
(j) Anderson's statement to Weeks that Respondent usually had a different
attitude toward employees after they became unionized.
(k) Supervisor Bales' threatening statement to Brien on October 13 that
Respondent would go independent before it would allow the employees to organize.
(1) Anderson's remark to Brien "Well, Moses, I guess you will have to go
back to the Press for a post-graduate course."
(m) Supervisor Harrell's interrogation of Brien on October 18 if everyone
was going to attend the union meeting scheduled for that night.
(n) Supervisor Little's inquiry of Brien if the men were going union.
(o) Anderson's remark to Brien that he would know the results of the union
meeting.'6
14 The Respondent in its effort to show that it dealt with unions on an open and above-
board basis, adduced evidence that it was in contractual relationships with six other unions
over a long period and as a matter of fact within the past 2 years agreed to a consent elec-
tion when approached by the Paperhandlers Union with a request to bargain . 111owever
this may be, the fact is as is shown by the details set forth hereinabove that it did not
pursue a neutral course with the Union herein . Indeed, it frankly admitted that the
primary reason for accelerating the date of the changeover to the independent contractor
system was to avoid interference from the Union and , as hereinafter found, to evade
bargaining with the Union.
1a Such expression is sufficient to foster the impression that the Respondent did engage
In surveillance and hence was as intimidatory in character as surveillance itself.
Harold W. Baker Co., 71 NLRB 44; S. W. Evans d Son, 81 NLRB 161 , partially reversed
on grounds not here material 181 F. 2d 427 (C. A. 3).
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(p) Supervisor Bales' inquiry of several district managers, on October 19,
if it was known which employees had not yet signed union cards.
(q) Supervisor Bales' acceptance of a list of names of employees who had
not signed union cards.
C. The refusal to bargain
1. The appropriate unit
The complaint alleges that all employees in the city circulation department
of Respondent employed at its Houston plant exclusive of all supervisory em-
ployees constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act. The Respondent's answer
generally denies this allegation of the complaint. The Respondent, among
other contentions raised at the hearing as well as in its proposed findings and
conclusions and brief, contends there was no appropriate unit since the Union
sought to bargain for a unit which included district managers who were ter-
minated on October 20, 1951. In addition, the Respondent contends that its
supervisors in the city circulation department were employees within the defini-
tion of the Act. The General Counsel, despite the allegation in the complaint
regarding the appropriate unit above set forth, argued at the hearing that crew
managers should not be included. In view of the disagreement of the parties re-
garding an appropriate unit, it becomes incumbent upon the undersigned to
hereinafter set forth in detail the complement of employees in the Respondent's
city circulation department, their duties, rates of pay, method of payment,
benefits, etc., in order to define the appropriate unit.
On October 17, 1950, the date when the Union advised the Respondent that it
had been designated by a majority of the employees in the city circulation de-
partment to represent them as their collective bargaining representative and re-
quested the Respondent to meet with it for collective bargaining purposes, the
city circulation department consisted of the following : 1 city circulation mana-
ger, 1 assistant city circulation manager, 1 chief clerk, 1 dock foreman, 6 super-
visors, 48 district managers, 5 rackmen, 11 crew managers, 3 regular dockboys,
S full-time clerks, 6 part-time clerks, 2 dealer boys, and 2 street salesmen. The
Respondent agreed that the city circulation manager, his assistant, the chief
clerk, and the dock foreman were all supervisors within the definition of the Act.
It contends, however, that the 6 supervisors did not have authority to hire or
fire and therefore were employees within the definition of the Act, and should
be included in any unit found appropriate herein.
For purposes of delivering the Respondent's newspaper to home subscribers,
there were established in the city circulation department 6 zones each headed
by a supervisor. Under each supervisor there were from 7 to 10 district man-
agers and in 5 of the zones a rackman, the sixth zone did not have a rackman
attached to it. The supervisors met 3 times weekly with Anderson where they
discussed zone problems and received instructions from Anderson which they in
turn passed on to the district managers. The supervisors instructed the district
managers in the proper operation of their districts, handled all of the detail
work in the zone, went out on the districts to observe the work of district man-
agers and rackmen, and made reports to Anderson concerning their observa-
tions. Another important function of the supervisor was to check on complaints
involving the district managers in his zone. Anderson testified that where a
Is In addition to the regular dockboys the Respondent employed casual dockboys,
particularly for week-end work. They were for the most part itinerants who were hired
from the street.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1235
district showed an abnormal dropoff in circulation, it was the responsibility of
the supervisor to investigate and determine the reasons for such loss. A report
was then made to Anderson which might include recommendations regarding the
district manager. Should the recommendation be one for discharge of the dis-
trict manager, then Anderson met either with the district manager individually
or with both the district manager and supervisor and the matter fully thrashed
out. While Anderson had the final say in determining whether a district man-
ager should be discharged, he admitted that any decision he reached would
include a consideration of the report and recommendations of the supervisor.
Thus, it seems clear that the supervisor's function included the power to effec-
tively recommend the discharge of district managers in his zone.
With respect to the hiring of rackmen, Anderson testified that the supervisors
made recommendations to him but before any individual so recommended was
placed on the payroll, final approval had to be obtained from Anderson. Melford
J. Miller, rackman in the Respondent's employ from sometime in August 1950,
until his termination on October 20, 19.30, testified credibly that he talked with
Supervisor Castor about a job and was sent out on a route by the latter for
breaking-in purposes. After he had been on the route for 1 or 2 days and was
actually working, he was introduced to Anderson by Castor. They talked for
several minutes, Anderson asking Miller if Castor had explained the duties of
the job to him, without himself going into any of the details of the job. Anderson
did not participate in any other regard in the hiring of Miller. Vacancies in
the district manager positions were usually filled by promoting a rackman.
Anderson testified that the supervisor would recommend a rackman to him to fill
the district manager vacancy but before final approval Anderson would discuss
the man's abilities thoroughly with the supervisor and determine his fitness for
the district manager's job. Usually the supervisor's recommendation was
accepted.
District Manager's weekly time sheets were turned in to their immediate super-
visor. In cases where overtime appeared on the time sheet it had to be apps owed
by the supervisor before the district manager was paid. In fact, Brien testified
that occasionally Supervisor Bales permitted him to work overtime for which he
was paid. Brien also testified that there were instances when he turned in time
sheets, including overtime to Supervisor Bales which item was disapproved
because the extra duty had not been assigned by the supervisor before it was
performed. Hagg corroborated the testimony of Brien regarding the turning in
of time sheets by district managers to their supervisors and the approval of over-
time payments by supervisors. On one occasion Ilagg delivered the route of
another district manager for 3 (lays, which extra duty he included as overtime
on his time sheet. Supervisor Bales, who was substituting for flagg's supervisor,
refused to approve the overtime. They took the matter up with Anderson who
told the disputing parties to await Supervisor Brockman's return from his vaca-
tion, stating that it was Brockman's decision to make.
Hagg testified without contradiction that on occasion when he was unable to
report to work on time, he would call his supervisor, Brockman. When he did
not call, Brockman reprimanded him for reporting late.
The district managers met daily with their supervisors before they went
out on their respective routes. At these meetings they were handed instruc-
tions, discussed among other things contests that were going on, and their
progress in collections. Hagg testified that his supervisor, Brockman, regularly
checked his collection sheets to see the progress he was making. With respect
to contests, it appears from the record that the contest rules were altered
somewhat by the supervisor in charge of a particular zone to fit the particular
242305-53 ---79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances present in his zone . The supervisor 's position was a promotion
from the ranks of district manager . The district's manager 's rate of pay started
at $50 and went up to $75 per week . The base pay for supervisors was from
$85 to $90 per week.
Upon the basis of the foregoing , the undersigned finds that the supervisors in
the city circulation department had authority to effectively recommend the hir-
ing and discharge of employees and in fact did hire employees; they also re-
sponsibly directed the work of the district managers and rackmen in their par-
ticular zone and were thus supervisors within the meaning of the Act and shall
be excluded from the unit hereinafter found appropriate.
The district managers were assigned to a particular district within a zone.
It was the district manager 's function to deliver bundles of newspapers to car-
rier boys who in turn made daily deliveries to subscribers ." The district man-
agers maintained regular contact with the carrier boys, saw to it that proper
delivery of, and collections for, newspapers were made to the subscriber in their
respective districts , all of which were located in the Houston metropolitan area,
made collections from the carrier boys and assisted in their solicitation of new
subscribers . The district manager worked under the supervision of city circu-
lation supervisors and among other clerical duties made up draw sheets show-
ing the number of newspapers they delivered daily. They received a regular
weekly salary and other employee benefits such as a yearly bonus, a Christmas
bonus, participated in a pension plan, and were granted paid vacations.
Rackmen worked under the supervision of city circulation supervisors. It
was their function to deliver newspapers to street racks as well as news dealers
within a particular zone. In addition it was the rackman 's duty to call the city
circulation supervisor on night duty and obtain the complaints of nondelivery
of newspapers in his zone . The rackmen then delivered the newspapers to
the complaining subscribers . Rackmen received a regular weekly salary, a
car allowance , as well as commission from the sale of papers from the racks
serviced by them. They also received the same employee benefits as district
managers.
The clerks were assigned to the regular clerical work of the city circulation
department . They answered the telephones , took new subscriptions , and were
advised when subscribers no longer wanted the newspaper delivered to their
homes. These starts and stops , as they were called , were written out on reg-
ular forms by the clerks and submitted to the district managers involved. They
received regular weekly salaries and employee benefits as hereinabove de-
scribed . Their clerical work is confined exclusively to the city circulation de-
partment . In addition to the regular clerks there were part -time clerks , usually
schoolgirls who came in between the hours of 5 p . in. and 8:30 p . in., and worked
regularly approximately 31/2 hours per day. The part-time clerks performed
the same function as the regular clerks except that since most of the com-
plaints regarding the nondelivery of the newspaper were telephoned in during
the evening hours most of their work was confined to receiving complaints over
the telephone , making memoranda of the same and transmitting them to the
district managers or the supervisors involved . The part-time clerks reported
for work after the regular clerks went off duty at 5 p. in.
Dockboys were under the supervision of Floyd Starr . Their duties were to
take the newspapers as they came through the chutes from the mail room and
place them on the trucks to be carried out to the routes by the district man-
17 In 29 NLRB 1043, the Board found that the carrier boys at the Houston Chronicle
Publishing Company were independent contractors. No contention is made herein as to
Iheir inclusion In the unit.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1237
agers. They were paid a regular weekly salary and received the employee
benefits hereinabove described. In addition to the full-time dockboys Starr
occasionally, particularly over weekends, would hire itinerant dockboys who
were usually hired from the street. They did not work regular hours nor did
they receive any regular salary. It does not appear from the record that they
received or were entitled to any employee benefits. There does not appear to be
any community of interest between the part-time itinerant dockboys and the
other employees of the city circulation department and under all the circum-
stances the undersigned finds that they should be excluded from the unit herein-
after found appropriate.
Street salesmen, of whom there were two, distributed the newspaper to street
vendors. One of the street salesmen was stationed in the Respondent's build-
ing and sold the newspapers to the street vendors who came to the building to
purchase them. The other street salesman distributed the newspapers to street
vendors in the residential areas. In performing his duty he used a vehicle be-
longing to the Respondent. The street salesmen were paid a regular weekly
salary and received the usual employee benefits.
Crew managers were part-time employees who worked on a regular part-
time basis, approximately 12 to 14 hours a week. Usually they were school-
boys who in addition to their job as crew manager were carrier boys. In
carrying out the function of crew manager their duty was to assist and
work with the district manager in areas where the turnover in carrier boys
was heavy or the collections were difficult. They were paid a regular weekly
salary for their crew manager functions, and also received employee benefits.
Dealer boys delivered newspapers to news dealers and newsstands, as well
as business establishments, located in the downtown business area. They used
Respondent's vehicles to make such deliveries. During periods of the day when
they were not driving the Respondent's trucks to deliver papers, they served
as part-time clerks in the office. They were regular weekly salaried employees
and received all employee benefits. They were under the direct supervision of
Anderson.
The record reveals also that there is one stenographer employed in the city
circulation department. There is no evidence in the record, however, describ-
ing the nature of the stenographer's duties. Since therefore it cannot be said
that she does confidential work, there is no valid reason for excluding her from
the unit.
It is thus clear that the above-enumerated employees have worked together as
a cohesive unit in the circulation of the Respondent's newspaper within the
metropolitan area of Houston. So far as the part-time employees are.concerned,
they work together side by side with the other employees and as a matter of fact,
in the case of the part-time clerks, they actually take the place of the regular
clerks after their tour of duty is finished. The Board has held that all employees
working regularly at jobs within the ambit of the unit are necessarily included
and entitled to representation irrespective of the number of hours of employment.
See Evening News Publishing Company, 93 NLRB 1355.
Upon the basis of the foregoing and upon the entire record, the undersigned
concludes and finds that at all times material herein all the employees in the
city circulation department of the Respondent's newspaper, including district
managers, rackmen, crew managers, regular dockboys, clerks, part-time clerks,
dealer boys, street salesmen, and the stenographer, but excluding all supervisors
as defined in the Act constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Representation by the Union of a majority in the appropriate unit
As of the period October 16 through October 20, 1950, there were listed on the
Respondent 's payrolls the names of 86 employees within the appropriate unit 1°
There was introduced in evidence 57 original signed union -application member-
ship cards bearing the dates October 11, 12, 13, 14, 16, 17, and 18, 1950. There
is no dispute regarding the signatures on the cards . The Respondent endeavored
to prove, however , that orders were issued by Hieken to predate some of the
cards. Thus Weeks testified that at one of the later union meetings instructions
were given to predate the cards . At another point in his testimony , however,
he stated that he was not sure but he believed that Hieken told the men to predate
the cards. Weeks did not testify that he predated any cards or that he knew
of any that were predated . Hieken testified that all of the signed cards were
turned in to him, that he did in some instances insert the dates on the card
where the date was left blank , but the date he inserted was the day on which
the cards were received by him. He at no time gave instructions to predate any
signed cards. Hieken's testimony is credited. No testimony was adduced by
the Respondent to prove that the dates on the cards were tampered with or had
been predated . In any event , the Union filed its representation petition with
the Board on October 19, 1950, at which time Hieken turned over the 57 signed
union-application membership cards which he had in his possession.
As found hereinabove , there were 86 employees in the appropriate unit during
the period October 16 through October 20, 1950. Of the 57 signed application
membership cards in evidence, 51 cards were signed during the period October
11 to 16 inclusive. The remaining 6 cards were signed on October 17 and 18.
Thus, on October 16 the Union had been designated by 51 of the 86 employees
in the appropriate unit.
The undersigned finds that on October 16. 1950, and at all times material
thereafter, the Union was and now is the duly designated representative of a
majority of the employees in the aforesaid appropriate unit and that by virtue of
Section 9 (a) of the Act, the Union at all such times was and now is the exclusive
representative of all its employees in such unit for the purposes of collective
bargaining.
3. Sequence of events with respect to the Union 's attempt to bargain with
the Respondent
By letter dated October 16, received by the Respondent on October 17, the
Union advised that it had been designated by a majority of the employees in the
city circulation department as their collective bargaining representative 1° The
letter went on to state that the Union had been informed of the Respondent's
contemplated move to the independent contractor system of distribution, and de-
manded that before any change in the status of employees in the city circulation
department take place that such change be the subject of collective bargaining
between the Union and the Respondent. Hieken also mentioned that the dis-
trict managers' status as employees was being terminated and they were being
forced into a so-called individual contractor arrangement as a move on the part
of the Respondent to evade collective bargaining with the Union.
Butler, in a letter dated October 17, replied to the Union's letter and, referring
to the Union's statement that the move to independent contractor system was for
18This number is broken down as follows : 48 district managers, 5 rackmen, 11 crew
managers, 3 regular dockboys, 8 clerks, 6 part -time clerks , 2 dealer boys, 2 street salesmen,
and 1 stenocrapher.
w The letter also mentioned that an overwhelming majority of the district managers
had designated the Union to represent them.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1239
the purpose of evading collective bargaining , stated that the Respondent had
been considering the advisability of changing over to the independent contractor
system of distribution for many months past. That their investigation had
revealed that the independent contractor system was not only more economical
but more productive and efficient than the present district manager system of
city circulation, and that it was the feeling of the Respondent that such a change
was necessary in order that its circulation keep pace with the other two Houston
daily newspapers. Butler also noted that increased operating costs made it
mandatory that a more efficient operation be conducted and only these con-
siderations entered into the Respondent's decision to change over to the inde-
pendent contractor system of distribution to become effective November 1, 1950.
The move, he stated, was not made for the purpose of evading collective bargain-
ing as evidenced by the further fact that only after this decision was announced
was the Respondent approached by the Union with respect to collective bar-
gaining for the district managers.
On October 18, as heretofore noted, the Respondent distributed to all its
city circulation supervisors and district managers a form with a request to the
said employees to indicate in the space provided therefor whether or not they
were interested in being considered for an independent contractor contract.
The said forms had to be returned to the Respondent by 6 p. in. the same day.
On October 19 Hieken talked with Butler on the telephone. Hieken identified
himself and told Butler that the Union represented a majority of the employees in
the city circulation department and requested a bargaining conference for that
day. Hieken offered to show Butler the union membership application cards in
order to prove its majority. Hieken stated that if it was the Respondent' s inten-
tion to make any change in the status of district managers the Union wanted
to be consulted and bargained with before any change was made. Butler told
Hieken that he was busy, that he expected a visitor from Beaumont, Texas, who
was coining in to see him about the purchase of some equipment and machinery
and that he would call Hieken back. In a later conversation Butler told Hieken
he just could not manage to see him that day because he was too busy and he
did not think he could see him before Saturday, October 21. Reference was made
by Hieken in this second conversation about the fact that the changeover to
the independent contractor system was a method of "stopping the Union," to
which Butler replied that the Respondent had been considering this system for
a number of years, that it was their decision and it was not going to be changed.
With respect to the meeting set for October 21, Hieken told Butler if that was
the earliest date he could see the Union's representatives, Hieken would be there
on that day and an arrangement was made for a meeting at 10 a. in. on
October 21.20
Butler testified that when he spoke with Hieken the second time on October 19,
the Respondent's attorney, Huggins, happened to be in his office. Butler testi-
fied he told Huggins that since the Union was demanding no further steps be
taken to effect the changeover and since the Respondent had already made its
decision, if the Union insisted in its Saturday meeting on bargaining for a unit
that included district manager, the Respondent would be forced to refuse to
bargain. Butler testified further he told Huggins he (Butler) "felt very defi-
nitely there would be some interference from the Union, in now making the
switchover, and [I] didn't feel we should have the interference from the Union,
or anybody else." Butler asked Huggins if under the circumstances the Re-
spondent would be within its rights if it accelerated the date of the changeover
20 Butler, in all material respects , corroborated Hieken's testimony regarding this
telephone conversation.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to independent contractor system of distribution.' Huggins' advice was that
the Respondent could accelerate the changeover date.
In the course of working out the mechanics involved in the changeover, a col-
lection problem developed in that if the Respondent did not have on its payroll
district managers (employees) during the month of November it would be unable
to make collections from the carrier boys for papers delivered to them during
the month of October." Anderson testified he discussed this problem with
Butler on October 19, and during their conversation Butler told Anderson of the
telephone call he had received from Hiekin requesting a bargaining meeting with
the Respondent. Quite a lengthy conversation ensued when Butler asked Ander-
son "can you change this system immediately?" Anderson replied, "yes, we can
change it, do it tomorrow, make the changeover tomorrow." To which Butler
said, "Well, I expect we had better do it, because it looks like from the tone
of this letter we got, letter of the 17, I am a little afraid that we might have a
little interference with the distribution of our papers, because we don't think
that Mr. Hiekin represented an appropriate unit of circulation employees
including the district managers. And we don't want to bargain with him."
Later that day a meeting was held to discuss the problem of delivering the
newspapers from the Respondent's dock to the various locations where they
would be handled by the independent contractor. One Mr. Kirby of the Blue
Bonnett Express Company" was invited to the meeting held in Butler's office
and a discussion ensued as to the period of time necessary for Blue Bonnett
to ready itself to handle the distribution of the city circulation newspapers.
Kirby advised the Respondent that he could handle the transaction by Saturday
morning, October 21, and the parties agreed tentatively on the rate to be paid
Blue Bonnett for the delivery of its newspapers for the balance of the month
and then for a yearly contract thereafter.
Butler testified that he then ascertained from Anderson that he could make
the changeover by the following day whereupon Butler instructed Anderson to
effect the changeover by taking all of the employees, that is district managers,
rackmen, crew managers, and dockboys, off the payroll as of the finish of busi-
ness October 20, so that Blue Bonnett could take over the distribution of the
newspapers starting with the morning of October 21.
In accordance with Butler 's instructions , termination notices dated October 20
were issued to the district managers " advising them that they were to be taken
off the payroll as of the close of business October 20, 1950. The five district man-
agers who were not offered independent contractor contracts were told that
they would receive their regular pay as if they had remained in the employ of the
Respondent for the payroll period ending November 15. All of the other district
managers were paid up until October 31. The other employees who were termi-
21 It will be recalled that Butler's reply letter to Hieken noted that the changeover date
would be November 1.
22 Anderson testified that Respondent's solution to this problem was to pay the district
managers their regular salaries for the balance of the month of October even though they
were terminated as of the finish of business on October 20 and, in addition , to regard the
independent contractor contract as having commenced on October 1, thus enabling the
Respondent to collect from the independent contractors for papers delivered to carrier
boys during October, and the independent contractor in turn made a profit in addition to
his regular salary, of the difference between the rate the Respondent charged him for
the newspaper and the rate he charged the carrier boy from whom he collected for the
month.
23 The Blue Bonnett Express Company had been hauling the Respondent 's country
circulation newspapers for the past several years.
24 As previously noted 7 of the district managers were in Dallas , Texas, attending the
State fair on October 20. Upon their return on October 23, they were issued similar
termination notices.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1241
nated on October 20 were paid until October 31. The carrier boys were advised
by letter dated October 20 that the Respondent was changing its method of
city circulation distribution beginning October 21, at which time the Respondent
would sell its newspapers to independent contractors. The Respondent advised
the carrier boy that its contract was being terminated as of October 31, and
all rights thereunder were being assigned to a named independent contractor
effective October 21. The letter closed with the statement that on and after
October 31 any contract made for the purchase and distribution of the Chronicle
would have to be made with an independent contractor and not with the Respond-
ent. At or about the same time that the independent contractor entered into his
contract with the Respondent a rate agreement was entered into between the
parties whereby the rate per copy of newspaper, both daily and Sunday, to be
paid the Respondent by the independent contractor was established and made
it part of the original contract. Anderson testified that he met with each con-
tractor individually and by the use of a basic formula u to which was added the
figure of $100 to take care of anything else that might happen to come up, the
rate was arrived at. Anderson admitted that when they started figuring rates
the Respondent had the thought in mind that it was going to place the independent
contractor in a position where he would earn more than he did previously as a
district manager or supervisor.
25 THE HOUSTON CHRONICLE
INDEPENDENT CONTRACTOR's RATE AGREEMENT
Name ------------------------------- Address ---------------------------------
PRESENT INCOME-9 MONTHS 1950
$------------------------------------------ Total Salary Income-9 Months 1950
$------------------------------------------ Salary Income per Month
$------------------------------------------ 5,7o Yearly Bonus per Month
$------------------------------------------ Car Allowance per Month
$------------------------------------------ Pennon Benefits per Month
$------------------------------------------ Christmas Bonus per Mouth
$------------------------------------------ -----------------------------------
$-----------------------------------I------- -----------------------------------
$------------------------------------------ Total Average Income per Month, 1950
• s • • • • •
ESTIMATED ADDITIONAL EXPENSE AS INDEPENDENT CONTRACTOR
$-------------- ----------------------- --------------------------------------
$-------------------------------------- --------------------------------------
$-------------------------------------- --------------------------------------
$-------------------------------------- --------------------------------------
$--------------------------------------. --------------------------------------
$-------------------------------------- --------------------------------------
$-------------------------------------- --------------------------------------
Old Rate per copy calculated on basis for first nine ( 9) Months 1950, ------ f per copy.
NEW RATE CALCULATED ON BASIS AS FIGURED ABOVE ON ------ COPIES PER DAY AVERAGE:
Carrier Delivery ------¢ Daily ------¢ Sunday ; ------# Sunday Extras.
Dealers and Street Sales ------¢ Daily; -- ----¢ Sunday ; ------f Sunday Extras
SPECIAL ARRANGEMENTS:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
------------------------------^------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Approved---------------------------------- -----------------------------------
Independent Contractor City Circulation Manager,
Date ---------------------------- 19----
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The independent contractor system was inaugurated on the morning of Oc-
tober 21. The Blue Bonnet Express Company delivered newspapers from the
Respondent's dock to the various parts of the city, using some of its own trucks,
as well as some of the Respondent's trucks which were leased to Blue Bonnet.
The meeting between the Union and the Respondent took place as scheduled
in Butler's office on October 21. Present were Butler, Anderson, and Huggins for
the Respondent and Hieken, Brien, Weeks, and Derrington,26 and the president
of the Local of the Union, J. W. Aycock,27 for the Union. Hieken testified that
he told the Respondent's representatives that the Union was there to present
its claim for recognition and to have the Respondent bargain with it. He stated
that the Union was ready to prove its majority and offered to do so. Hieken
testified, without contradiction, that Huggins said the only proof the Respondent
would accept would be a certification by the Board in an appropriate unit, noting
that the Union had not asked for recognition in an appropriate unit. Thereupon
Hieken asked Huggins what he considered an appropriate unit, to which Hug-
gins replied, "there is no appropriate unit." Hieken then requested a statement
to include the names of employees terminated and the reasons for the termina-
tions, which was refused. Butler, in answer to a question, said that the Re-
spondent made its decision to put the independent contractor system of distribu-
tion into effect on October 16, on the basis of a report which Anderson made to
Butler the previous week. Toward the conclusion of the meeting Hieken told
the Respondent's representatives that the Union came there with a view toward
settling their problems by collective bargaining procedures, but that the attitude
taken by the Respondent in refusing to bargain left the Union no alternative but
to file an unfair labor practice charge. Hieken asked Huggins for an explana-
tion of the Respondent's position, to which Huggins replied, "he would not make
any explanations to the guild." Weeks inquired why he had been terminated and
Anderson explained that it was a matter of simple arithmetic, the supervisors
had to be taken care of in the changeover and therefore, five district managers
had to be let go and Weeks was one of the five. After some further conversa-
tion the meeting broke up.
4. Concluding findings with respect to the Respondent's refusal to bargain
It was the Respondent's position, taken during the hearing and in oral argu-
ment, that on October 16, when its decision was announced to the district man-
agers to make the changeover to the independent contractor system of distri-
bution, it had no knowledge of union activity and, having made its decision,
whatever occurred thereafter by way of. union activity could not prejudice it in
its lawful right to effect the changeover. In its brief, as well as during the hear-
ing, the Respondent urged that it was motivated by economic reasons and not by
any desire to thwart union activities or avoid bargaining with the Union.
The undersigned cannot agree that the Respondent did not have knowledge of
its employees' union activities and membership. The maximum number of city
circulation department employees at any one time during the activities described
herein was about 90. All of the said employees were housed on the first floor
of the Respondent's building There they met and transacted their business
daily and were in constant contact with each other. As previously found, talk
about the Union during its 10 days of activity prior to the changeover was gen-
eral and frequent among the Respondent's employees and supervisors. It has
also been found that during such talks the supervisors engaged in acts of inter-
Derrington was a rackman who was terminated on October 20.
^+ Aycock was not an employee of the Respondent.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1243
rogation and threats. Moreover, in a place of business so limited in size as was
the Respondent's city circulation department, the employees' union activities be-
come generally known by management and knowledge of the employees' union
activities may be inferred. When, in addition, the precipitate nature of the de-
cision to effect the changeover which coincided with the employees' concerted
and union activities is considered ; the inclusion of four union committeemen
in the group of five district managers not offered independent contractor con-
tracts, the conclusion that the Respondents had knowledge of or believed that
their employees were engaging in concerted activities, is apparent. It is found
from all of the surrounding circumstances that the Respondent had knowledge
of its employees' union activities and membership. See N. L. R. B. v. Abbott Wor-
sted Mills, 127 F. 2d 438, 440 (C. A. 1) ; The Firestone Tire and Rubber Company,
62 NLRB 1316; Quest-Shon Mark Brassiere Co., Inc., 80 NLRB, enfd. 185
F. 2d 285 (C. A. 2) ; Jasper National Mattress Company, 89 NLRB 75.
It is undisputed that the Respondent's officials concerned with the circulation
of its newspaper discussed the independent contractor system of distribution
periodically from 1941 until 1950 28 In 1950 these discussions became more
frequent. Thus, Anderson testified that in August 1950 he met with Harold
Nogle, circulation manager of the Port Arthur (Texas) News, to discuss the
independent contractor system of distribution and was advised by Nogle, among
other things, that it was the economic method of distribution of newspapers be-
cause it took so few men. There is also undisputed evidence that Anderson
told Butler that with the installation of the independent contractor system of
distribution the Respondent would be enabled to eliminate some 93 personnel,
eliminate the clerical work entailed in maintaining such personnel on its payroll,
eliminate considerable equipment and also free capital which the Respondent
had tied up in its city circulation department. It was admitted, however,
that at no time during these discussions did Anderson give Butler any figures
concerning savings nor was any comparative analysis made on a cost ac-
counting basis of the different systems of distribution. While there was some
statistical evidence adduced concerning the circulation figures of the Houston
Chronicle as compared with the other Houston newspapers, as well as Texas
newspapers generally, which tend to show that the Respondent's newspaper
did not gain in circulation proportionately with the other Houston newspapers,
the undersigned deems it unnecessary to further burden this Report with a
discussion of the same in view of the findings hereinafter made.
It is unnecessary to discuss herein whether subcontracting work previously
done by employees is a proper subject for collective bargaining. It has so been
held by the Board and the courts. Timken Roller Bearing Company v.
N. L. R. B., 161 F. 2d 949, 955 (C. A. 6) ; Rome Products Co., 77 NLRB 1217. Cf.
Eva-Ray Dress Mfg. Co., Inc., 88 NLRB 361. While the Respondent is not com-
pelled to reach an agreement with the Union on the issue of contracting out its
work, the requirement is that it consult with the Union and explore in good
faith the possibility of reaching an agreement so that in conformity with the
purposes of the Act the matter may be removed so far as is possible as a cause of
industrial strife. This the Respondent failed to do. On the contrary and by
its own admission, the Respondent felt "that bargaining with the union would
result only in interference." Here instead of bargaining with the Union upon
its original demand, when it represented a majority of the employees in the ap-
propriate unit and when the changeover had not yet become an accomplished
2,1 Butler testified that the Houston Post installed the independent contractor system of
distribution in 1941 and it was shortly thereafter that such discussions among the
Respondent 's supervisors took place.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact, the Respondent accelerated the changeover date, unilaterally severed a
group of employees from the bargaining unit represented by the Union , and re-
sorted to this fact as one of its reasons for refusing to bargain.
The question concerning the issue as to whether the Respondent rightfully
refused to bargain with the Union in its meeting on October 21, because as it
contended the Union was attempting to bargain for a unit which included dis-
trict managers who had already been severed from the Respondent's employ and
therefore there could be no appropriate unit, remains to be resolved. The prin-
ciple is so well established as to require no citation of authority that an em-
ployer need not bargain with the purported representative of his employees if
he entertains a reasonable and honest doubt regarding the appropriateness of
the unit until such time as the doubt is dispelled. So it is true here that if
Respondent in good faith believed that the unit which the Union sought to repre-
sent did not constitute one appropriate for bargaining purposes, it was under
no compulsion to extend recognition or to enter into bargaining negotiations. In
the instant case, the Respondent took the adamant position that there was no
appropriate unit because the district managers were included. As has been
found hereinabove, the situation whereby the district managers lost their status
as employees and were severed from the unit was brought about solely by the
Respondent's unilateral action at a time when it had a duty to bargain with
the Union concerning such matters. Can it be said therefore that the Respondent
in good faith questioned the appropriateness of the unit? The undersigned
thinks not. Furthermore, the Respondent did not offer to cooperate in the unit
determination, or indeed, to explain when requested by the Union just which
employees the claimed unit would embrace.
Quite apart from the foregoing and assuming as has been found that the
Respondent had under consideration for some time the changeover to independent
contractor system of distribution, the only explanation in the record as to why
the changeover was accelerated and instituted at the time the Union requested
the Respondent to bargain concerning the same was because of its fear of inter-
ference from the Union if it engaged in bargaining , its duty under the Act. In
view of the Respondent's opposition to the Union as revealed by the interroga-
tion regarding the employees' union activities, by its threats to go independent if
the union drive was successful, by its unilateral action in terminating the em-
ployee status of district managers, rackmen, dockboys at a time when it was
required to bargain with the Union concerning such matters vital to employees,
and in its refusal to offer independent contractor contracts to four union com-
mitteemen as hereinafter found , the undersigned is persuaded and therefore
finds that the Respondent effected the changeover on October 20, for the purpose
of abolishing what it conceived to be a part of the appropriate bargaining unit
to avoid bargaining and to rid itself of the foremost adherents of the Union. It
is further found that the unilateral changeover was completed with such great
haste and on the basis of a mere oral and apparently incomplete arrangement"
that thereby the Union was also unlawfully deprived of the opportunity to bar-
gain with the Respondent about the future status of the employees affected by
the changeover.
It is settled law that an employer is obligated to bargain upon demand with the
duly designated representative of his employees regarding changes in the tenure
or working conditions of his employees before putting the changes into effect in
order to afford the bargaining representative an opportunity to discuss with the
-1 The record reveals that the independent contractor contracts were not completely
executed until sometime shortly after October 20, and the contract with Blue Bonnet
Express Company was not signed until after the actual changeover took place.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1245
employer such questions, e. g., as whether or not the changes (if adverse to the
employees) can be avoided, the manner in which the changes should be effected,
and the policy with respect to contracting out work generally. It follows that,
when a duly designated bargaining agent is in the picture, unilateral action by
the employer in regard to such changes is in derogation of the bargaining agent's
status as such, and violates an "essential principle of collective bargaining.170
In view of the foregoing, the undersigned finds that the Respondent on October
17, October 19, and October 21, 1950, and all times thereafter refused to bargain
collectively with the Union as the exclusive representative of its employees in the
unit herein found to be appropriate.
D. The terminations of employment
The amended complaint alleges that on or about October 19, 1950, to date, the
Respondent discriminated against all employees formerly classified as district
managers employed at its Houston plant in regard to their terms or conditions
of employment by abolishing such positions and requiring such employees to
execute individual contracts with the Respondent providing for the performance
of the same duties the district managers had performed before the said change
and that such change deprived the above-mentioned employees of certain benefits
incident to employee status for the purpose of thwarting and avoiding bargaining
with the Union and precluding its employees from exercising their rights under
Section 7 of the Act. It further alleges that on or about October 20, 1950, the
Respondent discharged 16 named employees 81 and has failed or refused to
reinstate the said employees for the reasons that they joined or assisted the
Union or engaged in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection and to discourage membership in
and avoid bargaining with the Union.
Insofar as the effectuation of the independent contractor system of distribution
on October 21, 1950 (and that appears from the record to be the primary reason
for the reduction of the city circulation distribution staff), led to the termination
of the employment of the 16 employees named in the statement of the case herein,
the said terminations of employment were in violation of the Act. It has been
found above and the basis for that finding pointed out that the effectuation of
the independent contractor system of distribution on October 21, at the height of
the union organizing campaign and at the time when the Union requested the
Respondent to bargain with it among other matters, on this very subject involving
the termination of employees, was for the purpose of severing a substantial group
of the Respondent's employees from the unit represented by the Union and for
the further purpose of avoiding bargaining with the Union. But even aside
from this, the selection of Brien, Weeks, Hagg, Kyle, and Rogers from among
the 48 district managers as the employees not to be offered independent contractor
contracts appears to have been discriminatory. At the hearing Anderson testified
that the selection of employees for independent contractor contracts resolved
itself primarily into a simple arithmetical problem, there being 54 men available
for 49 jobs. Further the Respondent argues in its brief that-Anderson was solely
responsible for the selections which were based on the following considerations :
To make the selection with as little disruption as possible in service to the ulti-
31 May Department Stores v. N. L. R. B., 326 U. S. 376, 384. See also : Rome Products
Co., 77 NLRB 1217, 1219-1220; Hagy, Harrington and Marsh, 74 NLRB 1455, 1468-1471;
J. H. Allison & Company, 70 NLRB 377; C. Pappas Co., Inc., 82 NLRB 984; Crompton
Highland Mills, 70 NLRB 206, sustained , 69 S. Ct. 960; General Motors Corp ., 81 NLRB
779; Bergen Point Iron Works, 79 NLRB 1073; Franklin Hosiery Mills, Inc., 83 NLRB 276.
31 The names of the discharged employees are set forth in the statement of the case.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mate reader ; in every instance possible, the men were offered contracts covering
areas adjacent to their homes ; that some other person was better qualified to
carry out the terms of the contract than Brien, Weeks, Hagg, Kyle, and Rogers ;
and that Anderson was in no way influenced by the union activities of any of the
said employees. It will be recalled, however, that Butler's memorandum of
October 16 to Anderson mentioned reliability, experience, efficiency, and seniority
in service as the criteria to be considered in the selections for independent
contractor contracts.
Brien first became employed by the Respondent in 1938 as a complaint boy in
the city circulation office. Prior thereto he delivered the Chronicle to home sub-
scribers as a carrier boy. He was advanced to other jobs until in 1941 he was
promoted to the district manager's job. Brien served in the Armed Forces from
October 1942 to November 1945, and upon his return to Houston was reinstated
as a district manager. He worked regularly until September 1947, when he
quit on his own volition. He returned to the Respondent's employ again in Octo-
ber 1948, at which time he was reemployed by Anderson and remained as a dis-
trict manager until his termination on October 20, 1950. As found hereinabove,
Anderson told Brien on October 13 that he was a good district manager and
Anderson was satisfied with his work. It is also noted that Brien was never
told directly by Anderson why he was discharged.
It will be recalled that at the October 11 meeting held between the district
managers and Anderson, Brien spoke up for a pay raise mentioning that the
Houston Press employees were making more money than Respondent's employees.
At that time Anderson told Brien that if he was not satisfied with his salary
he could go back to the Press. That same day Brien became one of the initiators
of the union movement in the Respondent's city circulation department by call-
ing Hieken and arranging for a union meeting. Brien signed a union membership
application card at the first meeting and was elected to the union committee to
represent his zone. As previously found, his union activities became the subject
of interrogation and threats by the Respondent's supervisors.
The record reveals that in rearranging the districts for independent con-
tractors, Supervisor Wenton Little took over the territory formerly serviced by
District Manager Larry Little and the latter was assigned to the territory for-
merly handled by Brien. Anderson testified that Supervisor Wenton Little had
priority and he chose Larry Little's territory. Wenton Little testifying on cross-
examination regarding his choice of a territory stated that Larry Little's territory
was not his first choice, that he "had another choice but the man that wanted
that territory had been here a good many years longer than either one of us
so naturally I bowed to him." 32
Anderson also testified that in choosing employees for independent contractor
contracts he "figured" that Brien would be too unreliable without supervision and
his credit was bad. On the matter of unreliability, evidence was adduced regard-
ing Brien's application for unemployment compensation referred to and resolved
hereinabove. Brien also testified without contradiction that in September 1947,
when he left his job, he spoke to the supervisor about quitting and gave him 2
weeks' notice. Brien offered to break in a new district manager during the
2-week period but was told it was not necessary, and he was given his check the
same day. With respect to the handling of his personal affairs which resulted
in his credit being bad, Brien explained that there was considerable illness in his
family during 1950 and he was unable to pay some doctor bills which were called
to the attention of the office. During all the years of Brien's employment when
02 In view of Wenton Little's testimony it seems clear that seniority in service was taken
into consideration when the choice of districts was made.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1247
he was entrusted with considerable sums of the Respondent's money it does not
appear from the record that he was warned or disciplined with respect to his
handling of the same. Certainly if Brien was as unreliable and his credit as bad
as Respondent painted it during the hearing, the Respondent acted in bad faith
when it recommended him for a job with the Houston Press in 1948. It appears
also that Respondent did not consider these matters too seriously when it rehired
Brien in September 1948 as a district manager and again entrusted him with
making collections of its monies.
The seniority list of district managers reveals that even considering Brien's
latest period of employment dating from September 1948 he had more service
as a district manager than at least eight other district managers, all of whom
were offered independent contractor contracts. On the basis of all the above and
taking into consideration the Respondent's demonstrated hostility against the
Union and the many other unfair labor practices in which it engaged, the under-
signed concludes and finds that Brien's employment status was terminated on or
about October 20, 1950, at which time he was not offered an independent con-
tractor contract because of his active membership in the Union and as explained
by Anderson he "brought it on himself."
Weeks started his employment with the Respondent in December 1945 as a
solicitor for new accounts and collector from news dealers. He had previously
worked as a district manager for the Houston Press for 10 years. Weeks was
promoted to district manager in March 1946 and was assigned to the downtown
district where he remained until his termination on October 20, 1950. Weeks
participated in the 1948 meeting of the Respondent's district managers in the
Auditorium Hotel and was one of the initiators of the union organizing effort in
October 1950. Weeks was elected chairman of the union committee and repre-
sented his zone. He was also active in signing up other employees to union
membership. As set forth hereinabove, practically simultaneously with the in-
ception of his union activities, Weeks became the target of supervisory inter-
rogations and threats. Other than Anderson's testimony that he talked to
Weeks about 2 or 3 weeks prior to his termination regarding a loss of circulation
in his district, there is no evidence that Weeks' work was unsatisfactory.
In assigning a reason for Weeks' termination, Anderson explained that it was
"another one of those switch deals." Supervisor Barry bumped District Man-
ager Keith Palmer and the latter in turn bumped District Manager Norman
Eaton. Eaton was then brought in from one of the outlying areas to service the
downtown area previously held by Weeks. Anderson admitted that he did not
consider offering Weeks a contract in any other district even though there were
at least five district managers who had less than 5 months' service in this
position at the time the independent contractor system was installed. It is note-
worthy that, subsequent to his termination, Weeks had several interviews with
Anderson in an effort to obtain an independent contractor contract and had
advised Anderson that he no longer had anything to do with the Union. At the
time of the hearing herein, Weeks was soliciting new subscriptions for the
Respondent and was being paid $1 for each new subscription. In view of the
above, together with the disproportionate selection of four union committeemen
for termination out of the total of five district managers terminated and refused
independent contractor contracts and by the unsatisfactory and unsupported
explanations offered for Weeks' termination, the undersigned concludes and
finds that Weeks' known union activities was the determining factor in selecting
him for termination.
Hagq started his employment with the Respondent in January 1947 as a
rackinan In October 1947 he was promoted to district manager and continued
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the said job until his termination on October 23, 1950. There is no evidence
in the record to indicate that Hagg's performance was other than satisfactory.
In fact, at the time of his termination Hagg was in Dallas, Texas, attending a
State fair. This trip was an award for his good work in increasing circulation
in his district. Hagg was elected to the union committee to represent his zone.
Hagg testified credibly that on October 12, his day off, he spent several hours
in the Respondent's office getting union cards signed up. Anderson testifying
regarding the reason for Hagg's termination stated that he did not know too
much about Hagg's ability but that he was "a nice chap." Anderson explained
that Hagg's termination came about because Supervisor Harrell selected the
territory formerly handled by District Manager Shuler. Since Shuler lived close
to the district formerly handled by Hagg, Shuler in Anderson's opinion was a
"natural for that area" and therefore placed in it. No explanation was offered
by the Respondent for not considering Hagg for any of the districts where men
with less seniority were placed. It was also admitted by Anderson that prior to
October 20 he never considered transferring Shuler to a territory nearer his home,
his only explanation was that under the independent contractor system of
distribution it was advisable for the contractor to live close to the territory
which lie services. The undersigned does not credit Anderson's explanation for
the termination of Hagg.
On the basis of the above, the fact that seniority, although not a decisive
factor, was considered in choosing employees for termination and the offer of
independent contractor contracts and Hagg was not considered for the same,
the further fact that the quality of his work according to the record had never
been criticized but on the contrary he received an award for increasing circula-
tion in his district, the conclusion is inescapable and the undersigned finds that
Hagg was terminated and not offered an independent contractor contract
because of his union activities.
Kyle was employed by the Respondent in June 1949 and became a district
manager in April 1950. He served in the latter capacity until his termination
on October 20, 1950. Kyle attended the first union meeting where he signed a-
union membership application card and was elected to the union committee to
represent his zone. Anderson testified that the reason Kyle was terminated
was that Supervisor Brockman had expressed a desire to service the district
formerly handled by Kyle. Kyle, according to Anderson, had worked for the
Respondent on a previous occasion while he was a student at the University of
Houston, and Anderson thought that Kyle's job with the Respondent was only
"a temporary proposition" while attending school, therefore, since he did not
think Kyle would make this job his "life's work" he decided to replace Kyle with
Brockman. There is nothing in the record to show that Anderson at any time
gave expression to his thoughts by speaking to Kyle in an attempt to verify
whether the job was only temporary with him. Even though Kyle had been a
district manager only since April 1950 at the time he was terminated, he was
senior to at least four other employees (district managers) who were offered
independent contractor contracts. In view of this fact, as well as Anderson's
unsatisfactory explanation for Kyle's termination which was based primarily
on his thoughts, the further fact that Kyle was a union committeeman, four of
whom were included in the group of five district managers terminated, and taking
Into consideration the Respondent's demonstrated hostility against the Union,
the undersigned concludes and finds that Kyle was terminated by the Respondent
on October 20, 1950, and not offered an independent contractor contract because
of his active membership in the Union.
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1249
Rogers started his employment with the Respondent in 1945 as a solicitor.
That same year he was promoted to district manager and remained in the
Respondent's employ as such until his termination on October 20, 1950. Rogers
became a union member early in the campaign. The record does not reveal
that he participated in any other union activity. He did, however, take part
in the employees concerted activities in 1948. Anderson testifying regarding
Rogers' termination stated at first that a choice developed between Rogers and
District Manager Bynum. Supervisor Bales had displaced Bynum by selecting
the territory formerly serviced by Bynum and since Bynum lived close to the
River Oaks section (Rogers' district) Bynum was offered the independent con-
tractor contract to service that district. Anderson also testified that whereas
he did not have any complaint about Rogers' performance he was not completely
satisfied with his service to the subscribers. Anderson then changed his testi-
mony and stated that he had a vast series of serious complaints concerning
Rogers but was unable to substantiate such testimony with statistics 9S Ander-
son also testified that the serious complaints in Rogers' district had been a
commonplace thing ever since Rogers was assigned there. In spite of this the
record does not reveal that any disciplinary action was taken against Rogers
or that he was transferred from the district at any time. Anderson finally
testified that the deciding factor in terminating Rogers and not offering him
an independent contractor contract was that he wanted to place Bynum in that
district. The undersigned does not credit Anderson's testimony regarding the
complaints against Rogers.
Weeks and Brien testified that on October 21 they told Anderson that the
Respondent made a mistake in terminating Rogers and not offering him an
independent contractor contract because Rogers had not been active in the
union campaign. Anderson answered that things happened pretty fast at
about this time and admitted making some mistakes in choosing the employees
offered independent contractor contracts and it was impossible for him not to
have made a few mistakes in his choice of the men.' Upon all of the foregoing
and the record as a whole, the undersigned concludes and finds that Rogers
was terminated and not offered an independent contractor contract because of
his union membership and to discourage membership in the Union.
The Respondent has submitted a number of proposed findings and conclusions.
Of these the following are accepted ; 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 21, 22, and 25 of the proposed findings and proposed conclusion 3. The
remaining requested findings and conclusions are rejected either because con-
trary to the findings and conclusions made in the Report herein, omnibus in
nature, immaterial to the issues, or so phrased that granting of them will confuse
the findings and conclusions.
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
= It should be noted that prior to October 20, the Respondent kept a record of individual
complaints received by them for a 30iday period after which time they were destroyed.
Anderson did not remember whether such complaints were retabulated on other sheets
for record keeping purposes after the 30-day period
s' This finding is based upon a reconciliation of the testimony of Weeks and Brien, which
the undersigned credits. While Anderson did not remember any conversation along this
line be did not deny that there was such a conversation and in fact admitted the statement
that ho made some mistakes.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
In the opinion of the undersigned the evidence reveals an underlying opposition
by the Respondent to the policies and objectives of the Act. The undersigned
finds that the unfair labor practices disclosed by the record are closely related
to other unfair labor practices proscribed by the statute and that a danger of
their commission in the future is to be anticipated from the conduct of the
Respondent in the past. In order to make effective the interdependent guar-
antees of Section 7 it is necessary therefore that the undersigned recommend to
the Board that its order be made coextensive with the threat of future disregard
by the Respondent of its statutory obligations.
Having found that the Respondent has engaged in unfair labor practices vio-
lative of Section 8 (a) (1), (3), and (5) of the Act, the undersigned will rec-
ommend 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 (late of the changeover to the independent contractor
system of distribution was accelerated by the Respondent and put into effect
on October 21, 1950, for the purpose of severing a substantial group of employees
from the unit represented by the Union, of ridding itself of several prominent
union adherents, and of avoiding bargaining with the Union. Under the circum-
stances herein set forth, the changeover on October 21 constituted an unfair
labor practice. Effectuation of the policies of the Act is achieved by restoration
insofar as possible of the status quo existing before the commission of the unfair
labor practices. The Respondent argues, however, that as it abolished an entire
department and sold all its equipment that it previously used in connection with
that department, therefore to require it now to reinstate the terminated
employees would have the effect of requiring it to reestablish its city circulation
department and thus create new jobs. The Respondent analogizes its changeover
from district manager system of city circulation to independent contractor
system of distribution to the situation where a company wholly discontinues a
business and cites in support of its argument the decision of the court of appeals
in the Grace Company case, 184 F 2d 126 (C. A. 8). The undersigned is of the
opinion that the decision in the Grace Company case is inapposite. There the
court remanded the matter to the Board, to determine if one of the company's
plants had been permanently closed subsequent to the entry of the Board order.
It was not contended that the plant closing was for illegal motives. The question
before the court was the propriety of a court order which might be impossible of
enforcement. The court distinguished the situation in the Grace Company case
from the cases in which although, after the Board's order, the employer has gone
out of business, the order is in part possible of enforcement, citing N. L. R. B. v.
National Garment Co., 166 F. 2d 233, 239 (C. A. 8) ; Southport Petroleum Co. v.
N. L. R. B., 315 U. S. 100. In the same decision the court also referred to the
decision in N. L. R. B. v. Caroline Mills Inc., 167 F. 2d 212 (C. A. 5), where an
order of enforcement was granted although the company had gone out of business.
While it is true that the Respondent has been operating from October 21, 1950,
to the date of the hearing herein and undoubtedly up to the present date under
the independent contractor system of distribution and indicates that it is satisfied
with the said system which has also brought about an increase in its city circu-
lation, the changeover on October 21 was illegally made in had faith ; therefore,
THE HOUSTON CHRONICLE PUBLISHING COMPANY 1251
to allow the independent contractor system of distribution to continue would be to
condone the Respondent's unfair labor practices As to hardships which may re-
sult if the Respondent must revert back to its district manager system of city
circulation, it can only be said that the Respondent by its own admission acceler-
ated the changeover date to avoid interference from the Union, in other words
to evade bargaining with the Union It is now up to the Respondent "to disen-
tangle the consequences for which it was responsible." ac The only feasible
means of restoring the status quo would be to require the Respondent to reinstate
the district manager system of city circulation, since as has been found, the Re-
spondent accomplished its illegal ends by changing over from such system to the
independent contractor system of distribution, and the undersigned so recom-
mends. See Schieber Millinery Co., 26 NLRB 937; Bank of America, National
Trust & Savings Association, 26 NLRB 198; Butler Brothers, 41 NLRB 843;
Rome Products Company, 77 NLRB 1217.
It has been found that the Respondent refused unlawfully to bargain collec-
tively with the Union as the exclusive representative of its employees in an ap-
propriate unit and unilaterally instituted the independent contractor system
of distribution to evade its duty to bargain, it will be recommended that Re-
spondent cease and desist from such conduct and upon request bargain with the
Union in respect to wages, hours, and other terms and conditions of employ-
ment.
Having found that the Respondent discriminated with respect to the hire and
tenure of the following named employees because of their adherence to or ac-
tivity on behalf of the Union and to discourage union membership:
Hubert A. Hagg
Ottis W. Kyle
F. W. Weeks
Nathan L. Brien
E. A. Rogers
W. It. Suber
A. N. Morgan
Preston Gullo
Melford J. Miller
L. P. Derrington
Austin L Minton
Roland C. Lambert, Jr.
LeRoy Clifford
Louis C. Martinez
George A. Farquhar
John A. Rhode
the undersigned recommends that the Respondent offer to each of these em-
ployees immediate and fall reinstatement to his former or to a substantially
equivalent position ' without prejudice to his seniority and other rights and
privileges. The undersigned also recommends that each of the employees dis-
criminated against be made whole by the Respondent for any loss of pay he
may have suffered by reason of the Respondent's discrimination against him.
It will be recommended that the loss of pay for each such employee 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, hereinafter 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 each employee
35 N L. R. B. v. Remington Rand, Inc., 94 F 2d 862 (C. A 2), cert denied, 304 U. S 5741
81 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, and if such position is no longer in existence, then to a substantially equivalent
position " See The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827
242305-53-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would normally have earned for each quarter or portion thereof his net earn-
ings," if any, in other employment during that period. Earnings in one par-
ticular quarter shall have no effect upon the back-pay liability for any other
quarter as It will also be recommended that the Respondent, upon reasonable
request, make available to the Board and its agents all payroll and other records
pertinent to an analysis of the amounts due as back pay.
It has also been found that the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them by the Act
by threatening reprisals against employees who exercised those rights and by
interrogations. It will be recommended that the Respondent cease and desist
from interfering with, restraining, or coercing its employees in any manner in
the exercise of their right to self-organization, to form, join, or assist labor
organizations, to join or assist American Newspaper Guild, CIO, and its Local 113,
to bargain collectively through representatives of their own choosing and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as authorized in Section 8 (a) (3) of the Act.
On the basis of the above findings of fact and upon the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAw
1. American Newspaper Guild, CIO, and its Local 113, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. All employees of the Respondent's city circulation department, including
district managers, rackmen, crew managers, regular dockboys, clerks, part-time
clerks, dealer boys, street salesmen, and the stenographer, but excluding all
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. American Newspaper Guild, CIO and its Local 113, were, on October 16,
1950, and at all times thereafter have been the exclusive representatives of
all the employees in the above-mentioned appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the aforesaid Union the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of some
of its employees, thereby discouraging membership in the aforesaid Union, the
Respondent has engaged and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By the above unfair labor practices and by otherwise 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 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
a' See Crossett Lumber Co., 8 NLRB 440.
28 F W. Woolworth Company, 90 NLRB 289.