E. Anthony & Sons, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 717 (N.L.R.B. 1946)

In the Matter of E. ANTHONY & SONS, INC. and AMERICAN NEWSPAPER
GUILD, C. I. O.
Case No. 1-C-2050O.Decided August 9'6, 1946
Mr. Robert E. Greens, for the Board.
Isserman, Isserman d Kapelsohn, by Mr. Morris Isserman, of
Newark, N. J., for the Union.
Mr. Elisha Hanson, of Washington, D. C., and Messrs. T. F. O'Brien
and S. Emory Bentley, of New Bedford, Mass., for the respondent.
Mr. Angelo Fiumara, of counsel to the Board.
DECISION
AND
ORDER
On February 25, 1946, Trial Examiner Gates issued his Inter-
mediate Report in the above' entitled proceeding, finding that the re-
spondent 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
exceptions to the Intermediate Report and a supporting brief. On
May 9, 1946, the Board at Washington, D. C., heard oral argument in
which the respondent and the Union participated? On May 10, 1946,
the Board accepted a brief previously filed by the Union and allowed
the respondent to file a reply thereto.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs of the parties, the conten-
tions advanced at the oral argument, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the modifications and additions herein-
after set forth.
1. The Trial Examiner found that the organization of the Associa-
tion was not undertaken by the respondent's business manager, Max
'Chairman Herzog, who was not present at the oral argument, has read the official
transcript thereof
70 N. L. R. B., No. 57.
717
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kramer, until after he was discharged on January 27, 1945. The
respondent excepted to this finding. - We have carefully reviewed the
record and, from all the evidence, it appears that this' finding is not
completely accurate. It does not reflect the uncontradicted testimony
of employee John Silveira that, in a conversation with Kramer about
the time of the latter's discharge, Kramer told him that he had had
printed applications for membership in the Association "for a long
time." To the extent that Kramer had applications printed prior to,
his discharge, he may be said to have undertaken organization of the
Association prior to his discharge, but the record does not show that
he took any other steps until after his discharge. Although employee
Silveira and Mary J. Harden signed individual applications for mem-
bership in the Association on the very day that Kramer's employment
ceased, it does not appear that the signing preceded the discharge.
2. The respondent has argued that there is no basis- for finding
independent violations of Section 8 (1) of the Act under the circum-
staxces of the case. It asserts that the Association was an "illegal"
organization because of the activity of supervisory employees therein,
and states in its brief that it "admits that it made inquiries as to the
extent of the activities of this Association in order to protect itself"
(emphasis supplied). This position less accurately describes the re-
spondent's activities than that taken by the respondent's counsel at
the hearing before the Trial Examiner, where he urged that the re-
spondent was entitled to "destroy" the Association.
While, as we have held, supervisors have the right under the Act
to join any labor organization of their choice and to designate such
labor organization as their representative, whether or not it is com-
posed exclusively of supervisory employees, they do not have the right
to engage in activities on behalf of or against labor organizations
which may tend to coerce subordinates in the exercise of their organi- -
zational rights. Matter of Climax Engineering Company, 66 N. L.
R. B. 1157. '
Since activity of supervisory employees which may have such coer-
cive effect is imputable to the employer under the Act, it is of course
proper for the employer to take appropriate steps to protect himself
against the consequences of such conduct. In the instant case, for
example, the respondent would have been entitled to require those of
its supervisors, who took an active part in the formation of the Asso-
ciation and who solicited membership therein among the rank and
file, to refrain from such activity. • The respondent would even have
been justified, assuming that the activity of the supervisors consti-
tuted illegal support or domination within the meaning of Section 8
(1), or (2), in refusing recognition to the Association and announcing
that it would not, absent Board approval, deal with that organiza-
E. ANTHONY & SONS, INC. 719
tion. But, by engaging merely in organizational activities of a char-
acter which the respondent was entitled to stop, the supervisory em-
ployees did not forfeit their right to join and be represented by any
labor organization of their choice; nor did they sacrifice the protection
of Section 8 (3) of the Act which shields their exercise of that right
from employer reprisal.' And certainly, the conduct of the super-
visors could not sacrifice that right of the rank and file employees to
full protection in the exercise of their rights under Section 7, and
thereby license the respondent to engage in conduct calculated to dis-
courage their exercise of those rights. The Act does not commission
or license employers to destroy labor organizations by discharging
members for any reason, and certainly not merely because supervisory
employees have been active therein.
By its course of conduct in connection with its attempt to "destroy"
the Association, the respondent infringed the rights of both super-
visory and rank and file employees. The respondent's conduct, which
we, like the Trial Examiner, find to constitute a violation of Section 8
(1) of the Act, cannot be justified as legitimate "inquiries" made for
the purpose of stopping activities of supervisory personnel in connec-
tion with the Association so as to protect the respondent's neutrality.
Plainly, the respondent was not engaged in making "inquiries" to this
end when Business Manager Mahoney told Paczewicz, a non-super-
visory employee, that he had been hired because he was expected to stay
out of the Association, and directed him to stay away from a meeting;
nor was the respondent making such "inquiries" when Circulation
Manager Kelleher stopped Paczewicz outside the meeting and told him
not to go in; nor was it making such "inquiries" when Gaylord and
Houser who were in charge of the Hyannis office told Boff, a non-
supervisory employee, that "the union * * * is really.like a couple
of racketeers living off the profits of youngsters."
Nor were these statements calculated merely to convince the em-
ployees that the respondent did not support the Association or dis-
avowed it, but rather were intended, and did tend, to convince the
employees that the respondent was opposed to any exercise by its em-
ployees, both supervisory and rank and file, of their right to self-
organization. The respondent was not motivated at any point by a
desire to protect its neutrality. As the Trial Examiner observed, the
respondent never told supervisory employees to refrain from activity
in behalf of the Association because it felt that their connection with
it endangered the respondent's neutrality; nor does it contend that
any of the supervisory employees whom it discharged wem discharged
2 To the extent that the Intermediate Report of the Trial Examiner in Matter of Ecusta
Paper Mill Oorpo2 at2on , et at, 66 N. L. R. B. 1204, contains language inconsistent here-
with, such language is hereby disapproved.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they had jeopardized its neutrality. And clearly it could not
have been motivated by any desire to protect its neutrality in its dis-
criminatory discharges of several non-supervisory employees. As the
Trial Examiner found, the motivating factor in respondent's conduct
was its opposition to its employees exercising those rights guaranteed
to them under the Act.
3. We agree with the findings and conclusions of the Trial Examiner
that the respondent discriminated in respect to the hire and tenure
of employment of Silveira, Harden, Buff, Ellison, Thompson, Ains-
worth, and Simas. It is noteworthy that, with a single minor excep-
tion, the respondent adduced no evidence to support its assertions that
the employees were discharged for cause. In further support of the
Trial Examiner's finding, that the fact that Silveira and Ellison op-
erated "kittys" was only a pretext for their discharges, we note that
the respondent did not discharge three other employees who also
maintained "kittys," two of whom were still in its employ at the time
of the hearing.
Supervisory employees Silveira and Ellison are, like non-super-
visory employees, entitled to protection against discrimination tend-
ing to discourage them and other supervisors from joining and bar-
gaining collectively through labor organizations. We have held above
that they did not lose that right by engaging in the type of organiza-
tional activities which the respondent was entitled to require them to
stops The respondent did not discharge them as a necessary step to
put a stop to such activities, but to discourage the exercise by them of
their rights under the Act.
Moreover, by discharging them because of its hostility to self-
organization as such, the respondent discouraged union membership
among the rank and, file. We have held on prior occasions that the
prohibition of Section 8 (3) of the Act extends to any discriminatory
discharge which is intended, or the purpose and effect of which is,
to discourage membership in a labor organization .4 The discharge
of supervisory employees under circumstances which suggest no mo-,
tivation other than hostility to any union activity, as such, operates
as a warning to all employeees of the danger attached to adherence
3 We are not confronted with the question of whether Silveira ' s and Ellison's discharges
would have been justified if the respondent had discharged them because their activities
in behalf of a rank and file union were improper or to protect the respondent ' s neutrality.
It (lid not assign such activities as a reason for their discharges at the time they occurred.
Mom eover , the respondent ' s brief expressly denies that any of the discharges were made
because of employees ' activity in Behalf of the Association It may also be noted that
Silveira and Ellison were eligible for Guild membership.
4 Matter of Ai)'Associates , Inc, 20 N. L. It . B. 356, 275, enf ' d as mod., 121 F. (2d) 586
(C. C. A. 2) ; Matter. of Skinner & Kennedy Stationery Company, 13 N. L. R. B. 1186,
enf'd 113 F ( 2d) 667 (C. C. A. 8 ), where we found that the discharge of Foreman Eckert
reflected "an intention on the part of the employer to discourage its employees from atign-
ing themselves with the Union" , Matter of Wells , Inc, 68 N. L R . B. 545 , cf Matter of
Reliance Manufacturing Company, 60 N L It . B 946, Matter of Vail Manufacturing Com-
pany , 61 N. L. It. B. 181 , and Matter of Climax Engineering Company , 66 N. L It . B. 1157
E. ANTHONY & SONS, INC. 7211 1,
to a union, and hence generally discourages union membership. The
effect of the discharges of Silveira and Ellison was to discourage
union membership among all employees.
4. The respondent has excepted to the Trial Examiner's refusal at
the hearing to grant its application for a subpoena directing the ap-
pearance of Dr. A. Howard Myers, the Board's former Regional
Director for the First Region, and to instruct the Board's Attorney
herein to produce certain Board records. The respondent's brief
contains a partial offer of proof in which it indicates that it wished
to show from the testimony of Dr. Myers and the Board' s records,
(1) that the Association had no status as a bona fide labor organiza-
tion, and (2) that the respondent's circulation manager, William H.
Cooper, participated in the organization of the respondent's em-
ployees while he was a supervisory employee prior to his resignation . 5
Neither the character of the Association as an unlawfully dominated,
labor organization, nor alleged activity of Cooper in behalf of the
Association while he was a supervisory employee (which relates only
to the character of the Association), are issues raised by the pleadings,
in this proceeding, nor is such evidence material to any issues in the,
case.' Other matters about which the respondent sought information
from Board records, such as the transfer of the membership from
the Association to the Guild, the substitution of the Guild for the
Association as charging party herein, etc., are likewise irrelevant to,
the issues herein. Accordingly, under all the circumstances, we con-
clude that the Trial Examiner's rulings were within the exercise of
his discretion proper.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations.
Board hereby orders that the respondent, E. Anthony & Sons, Inc.,,
New Bedford and Hyannis, Massachusetts, and its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in American Newspaper Guild,
C. I. 0., or any other labor organization of its employees, by discharg-
ing or refusing to reinstate any of its employees, or by discriminating-
in any other manner in regard to their hire or tenure of employment,.
or any term or condition of their employment;
5 The respondent asserts that in a conference in the Regional Office, Dr. Myers ascer-
tained from Cooper that Cooper had ibeen active in organizing the Association prior to his.
resignation from the respondent's employ
6 The charge and complaint did not allege a violation of Section 8 (2) of the Act
Moreover , even if the matters the respondent sought to prove had any relevancy , there was,
no showing that Kramer and Cooper , who could furnish the most direct evidence as to,
their activity in the Association , were unavailable as witnesses
'722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist American Newspaper Guild,
,C. 1. 0., or any other labor organization to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities, for the purpose of collective bargaining, or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to John Silveira, Sylvester Boff, William Thompson,
Bilsborrow Ainsworth, and Manuel M. Simas immediate and full re-
instatement to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges;
(b) Make whole John Silveira, Sylvester Boff, William Thompson,
Bilsborrow Ainsworth, and Manuel M. Simas for any loss of pay they
may have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum of money equal to the
amount he normally would have earned as wages during the period
from the date of his discharge to the date of the respondent's offer of
reinstatement, less his net earnings during such period; make whole
Mary J. Harden for any loss of pay she may have suffered by reason
of the respondent's discrimination against her, by payment to her of
a sum of money equal to the amount she normally would have earned as
wages from February 13, 1945, to October 22, 1945, less her net earn-
ings during that period; and make whole Edmund B. Ellison for any
loss of pay he may have suffered by reason of the respondent's dis-
crimination against him, by payment to him of a sum of money equal
to the amount he normally would have earned as wages from February
15,1945, to September 1, 1945, less his net earnings during that period;
(c) Post at its newspaper plants at New Bedford and Hyannis,
Massachusetts, and at all branch offices which it maintains in its busi-
ness, copies of the notice attached to the Intermediate Report herein,
marked "Appendix A." 7 Copies of said notice, to be furnished by
the Regional Director for the First Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent
immediately upon receipt thereof, and maintained by it for sixty (60)
-consecutive 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 material;
' Said notice, however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner," and substituting In lieu
thereof the words "A Decision and Order."
E. ANTHONY & SONS, INC. 723
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY, dissenting :
In my opinion this case should be remanded, for as the record now
stands the Association possesses all the indicia of a company-domi-
nated union. Inasmuch as the charging union concededly is its suc-
cessor, the Board has failed to establish a case for discrimination in
violation of Subsection 8 (3),8 since it would be absurd to assume that
this 'subsection was intended to prevent an employer from discouraging
membership in organizations made illegal by the preceding subsection.9
It has been the historic position of this Board that any inside organ-
ization of rank and file employees and supervisors, which has been
formed by supervisory employees, is subject to disestablishment irre-
spective of whether the activities of the supervisors have been insti-
gated or ratified by higher management. The evidence received by
the Trial Examiner would seem to indicate that the Association falls
into this category.
In the first place, as my colleagues concede, the plan for having such
an organization apparently originated with one of the respondent's
highest officials-one, Max Kramer, the business manager of this news-
paper. Prior to his discharge, according to uncontradicted testimony
of one of the witnesses produced by the Board, Kramer informed him.
that he had had applications for membership in the Association printed
"for a long time." Moreover,, both this witness, John Silveira, an
acknowledged supervisor, and Mary Harden, chief bookkeeper and
secretary (her titles would seem to show that she was both a super-
visory and confidential employee), signed applications on the very day
that Kramer's employment was terminated. It may also be inferred
that Kramer had already broached this plan to Cooper, the circulation
manager and hence another high ranking supervisor, for a few days
later Cooper and Kramer convened an organizational meeting of the
8 Subsection 8 (3) (By discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any labor
organization Provided, That nothing in this Act, or in the National Industrial Recovery
Act (U S C , Supp VII, Title 15, sees 701-712 ), as amended from time to time, or in any
code or agreement approved or prescribed thereunder , or in any other statute of the United
States, shall preclude an employer from making an agreement with a labor organization
(not established , maintained , or assisted by any action defined in this Act as an unfair labor
practice ) to require , as a condition of employment , membership therein, if such labor organi-
zation is the repiesentative of the employees as provided in section 9 (a), in the appro-
priate collective bargaining unit covered by such agreement when made "
0 Subsection 8 (2) • "To dominate or interfere with the formation or administration of
any labor oiganization or contribute financial of other support to it • Provided, That subject
to rules and regulations made and published by the Board pursuant to section 6 (a), an
employer shall not be prohibited from permitting employees to confer with him during
working hours without loss of time or pay."
712344-47-vol. 70-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association at which both were elected officers. Although it is claimed
that Cooper filed a telegram of resignation before this meeting began,-
it is undisputed that the respondent did not know of this until later,
nor was this fact announced to any of the subordinates who attended at
Cooper's request. The organization- founded was the nucleus of the
group to which the charging union (the American Newspaper Guild,
CIO) subsequently issued a charter, and although Kramer and Cooper
were excluded from membership in the CIO, Silveira, a supervisor
who was elected vice president at the Association meeting, became
president of the Guild local, and Ellison, another branch manager,
was active in both the Guild and the Association. Moreover, both
Silveira and Ellison, the respective supervisors of the New Bedford
and Hyannis news carriers, sought to enlist their subordinates for
membership in the organization.
The respondent contends that, when the Association attempted to
file a petition under the Act in the Boston regional office, Howard
Myers, Regional Director, discovered that the Union was company
dominated and intimated as much to respondent's counsel. In order
to prove this contention, counsel for respondent sought to have the
Trial Examiner issue a subpoena directing Dr. Myers to testify. Re-
spondent's brief states : "Dr. Myers . . . ascertained from Cooper
that Cooper had been active in organizing these Associations before
he resigned as respondent's Circulation Director, whereupon Dr.
"Myers informed him that he could withdraw the two petitions for
certification and designation as bargaining representative or the Re-
gional Director would dismiss them." The foregoing "would have been
testified to by Dr. Myers." Since the subpoena was denied by the Trial
Examiner, we must assume, on this state of the record, that this was
true. As such testimony would have shown conclusively that the
Association was illegal, it seems to me that the Trial Examiner's ruling
was prejudicial error and that the case should be remanded."
10 Although the Trial Examiner fixes the date of this meeting as occurring on February 1,
there are some references in the record to indicate that it took place on January 30,
2 days before Cooper had sent his telegram.
"The sane comment is applicable to the Trial Examiner 's ruling refusing to order,
counsel for the Board to produce certain papers relating to Cases 1-R-2296, 1-R-2310,
and 1-C-2512 , together with all records concerning interviews about representations made_
by Kramer or Cooper in connection therewith
The following is it brief desciiption of what these cases consist of
(a) 1-R-2296-A petition filed on February 6, 1945, by the Association seeking to
represent the respondent 's employees in its circulation department-petition
was withdrawn on March 9, 1945 ;
(b) 1-R-2310-Petition filed by the Newspaper Carneis Association of South-
eastern Massachusetts , seeking to represent all newspaper carriers employed by
the respondent-petition was withdrawn on March 9, 1945 ;
(c) 1-C-2512-A charge filed by the Association on February 13, 1945 , alleging the
respondent ' s violations of Section 8 (1) and 8 ( 3)-charge was withdrawn on
April 5, 1945.
The Board ' s attorney was also requested to produce all records relating to the Guild's
taking over the Association and the entry of the Guild in this proceeding, together with
the petition and all correspondence with officials of the Guild in Case No . 1-R-2351,
E. ANTHONY & SONS, INC. 725
Since the issue of the bona fides of the Association and its successor
was therefore raised in the course of the hearing by the respondent,
it is difficult for me to follow the majority's reasoning that this aspect
of the matter does not go to the heart of the case. The fact that the
respondent also sought to justify these discharges on other grounds-
for example, incompetence and improper use of trust funds-has no
bearing on the merits, even though the facts do not support the re-
spondent, until it is established that the employees in question held
membership in an organization which the Act was meant to protect.
Even though the majority reversed the rule of the Maryland Dry-
dock case 12 in the Packard 13 and Jones cC Laughlin 14 decisions, these
cases have not been viewed as overruling the doctrine that "inside"
labor organizations formed by supervisors among the rank and,file
employees were illegal. Indeed, the decision in the case of the Brown
Company,15 decided by my colleagues a few days before the Jones cf
Laughlin decision was issued, would seem evidence to the contrary,
for the organization disestablished in that instance had far less taint
of supervisory activity than is the case with either the Association or
its successor.
INTERMEDIATE REPORT
Mr. Robert E. Greene, for the Board.
Isserman, Isserman & Kapelsohn, of Newark, N. J., by Mr. Morris Isserma4l„
for the Union.
Mr. Elisha Hanson, of Washington, D. C., and Messrs T. F. O'Brien and S.
Emory Bentley, of New Bedford , Mass., for the respondent.
STATEMENT OF THE CASE
Upon a second amended charge duly filed by American Newspaper Guild,
C. I. 0., herein called the Union , the National Labor Relations Board , herein
called the Board, by its Regional Director for the First Region ( Boston, Massa-
chusetts ), issued its complaint dated August 25 , 1945, against E. Anthony &
Sons , Inc., herein called the respondent , alleging that the respondent had engaged
in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8 ( 1) and ( 3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint and notice of hearing were duly served upon the respondent and the
Union.
With respect to the unfair labor practices , the complaint alleged in substance
that the respondent : ( 1) from on or about January 1, 1945, interrogated its
filed by the Guild on March 8, 1945, seeking to represent employees in the respondent's
circulation department ; that petition was withdrawn on April 5, 1945.
Request was also made for files in reference to Case No. 1-C-2517, respecting the
charge filed by Ellison on February 23, 1945, alleging the respondent 's violations of Sec-
tions 8 (1) and (3) ; this charge was withdrawn on April 21, 1945.
12 Matter of Maryland Drydock Company, 49 N. L. R. B 733.
is Matter of Packard Motor Car Company, 61 N L. R B. 4.
14 Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopan Coal Divtision, 66
N. L. R B. 386.
16 Matter of Brown Company, 65 N. L. R. B 208
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees concerning their union affiliations, urged them to refrain from joining
or assisting the Union, and/or the Newspaper and Radio Workers' Protective
Association of Southeastern Massachusetts, herein called the Association, and
kept under surveillance their concerted activities; and (2) on specified dates in
February and March, 1945, discharged, and thereafter refused to reinstate cer-
t: ni named employees 1 because they joined and assisted the Union, and/or the
Association, and engaged in other concerted activities for the purpose of collec-
tive bargaining and other mutual aid or protection.
On August 31, 1945, the respondent filed an answer admitting some of the
allegations of the complaint concerning the nature and the interstate character
of its business, but denying that it had engaged in, or was engaging in, the
alleged unfair labor practices.
Pursuant to notice, a hearing was held in New Bedford, Massachusetts, on
October 22, 23, and 24, 1945, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent, and the
Union were represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all, parties. At the close of the
Board's case, the respondent moved to dismiss the complaint for lack of proof.
Decision was reserved. The motion is hereby denied. The parties did not
argue orally at the end of the hearing, nor were any briefs filed with the under-
signed thereafter.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT 2
I. THE BUSINESS OF THE RESPONDENT
E. Anthony & Sons, Inc., is a Massachusetts corporation, engaged at New Bed-
ford and Hyannis, Massachusetts, in the publication, distribution, and sale of
newspapers known as the "New Bedford Standard-Times" and the "Cape Cod
Standard-Times," respectively. In the course of such operations the respondent
purchases raw materials, such as newsprint, zinc, type metal, and ink for the
use of both newspapers. For the calendar year of 1944, its purchases of such
materials exceeded $137,000 in value, the larger part of which materials was
purchased and transported in interstate and foreign commerce from and through
the States of the United States other than the Commonwealth of Massachusetts,
and foreign countries, to its place of business in the Commonwealth of Massa-
chusetts. The respondent stipulated that it is engaged in commerce within
the meaning of the Act.
If. THE ORGANIZATIONS INVOLVED
American Newspaper Guild, affiliated with the Congress of Industrial Organ-
izations, is, and Newspaper and Radio Workers' Protective Association of South-
eastern Massachusetts, unaffiliated, was, a labor organization admitting to mem-
bership employees of the respondent.
I John Silveira, Mary J. Harden, Sylvester Boff, Edmund B. Ellison, William Thomp-
son. Bilsborrow Ainsworth, and Manuel Simas.
2 The following findings are based on admitted facts, or credible testimony which,
except where otherwise indicated, was substantially uncontradicted, and which the
undersigned credits.
E. ANTHONY & ' SONS, INC. 727
M. THE UNFAIR LABOR PRACTICES
A Interference , rests aint , and coercion
1. Introduction
The events hereinafter related occurred within the framework of the following
facts :
Prior to January 27 , 1945, Max Kramer was the business manager of the
respondent . He was discharged on that day. He immediately got in touch with
several of the respondent 's employees . He gave them application cards for
membership in an organization to be known as the Newspaper and Radio Workers'
Protective Association of Southeastern Massachusetts. Mary J. Harden, secre-
tary of William H. Cooper, respondent 's circulation manager, participated in the
distribution of the cards . A meeting of the new organization was called for
February 1, 1945. A few minutes before the meeting began, Cooper notified the
respondent , by telegram , that he was resigning from his job as circulation
manager. Officers were elected at this meeting , Kramer becoming president,
John Silveira vice-president , Harden secretary , and Cooper business agent and
treasurer . There was no constitution or bylaws . Although the membership of
the Association consisted for the most part of employees in the respondent's
circulation department , at least one employee of the advertising department
joined the Association , and the Association also endeavored to recruit carrier
boys and newsdealers into membership.
On February 13, the respondent discharged Silveira , Harden , and Sylvester
Boff; on February 14, it discharged Edmund B. Ellison ; on February 15, it
discharged William Thompson ; on February 21, it discharged Bilsborrow
Ainsworth ; and on March 20, it discharged Manuel Simas. These discharges
are discussed below in greater detail.
On February 18, 1945, the Association met again . It was unanimously voted
by the members present that the Association be dissolved and that the members
join the American Newspaper Guild, C. I. O. The local union thus formed
became known as the Newspaper Guild of New Bedford . Neither Kramer nor
Cooper was admitted to membership in the new organization , because they
were no longer "working newspapermen."
It was during February and March , 1945, that the respondent is alleged to
have engaged in the unfair labor practices herein discussed.
2. The coal bin incident
Stanislaus Paczewicz was hired as an extra truck driver for the respondent
by Nicholas J. Mahoney , who had replaced Kramer as respondent 's business
manager. Paczewicz began work late in January, 1945, and worked until
March or April. At the time of his hiring Mahoney told him that "Someone
is trying to organize a union . . . Just watch your step." On February 17,
Paczewicz was working near a coal bin in the respondent 's plant when Mahoney
approached him and asked him to accompany him into the coal bin. Mahoney
said : "I don't expect to see you at the meeting tomorrow." He told Paczewicz
that one of the reasons he had been hired was that he was expected to stay
out of the Association.
3. Surveillance
Paczewicz attended the meeting of the Association held on February 18, 1945.
as Paczewicz approached the meeting place, an office on Union Street in New
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bedford, he saw Jeremiah J. Kelleher, who had replaced Cooper as circulation
manager for the respondent, sitting in a car parked a few feet from the entrance.
Kelleher said to Paczewicz, "What are you doing here?" Paczewicz replied, "I
want to go upstairs and find what this is about." Kelleher said, "I don't want
you to go up there." Kelleher told Paczewicz to get into the car. Paczewicz
complied and Kelleher again told Paczewicz that he did not want him to attend
the meeting. Finally Paczewicz left the car, saying "I am going to go up anyway
and find what it is all about." Kelleher remained parked in the same spot for
at least an - hour and a half watching respondent's employees entering and
leaving the meeting.
B. Other interference , restraint , and coercion; the discriminatory discharges'
1. John Silveira
' John Silveira began work for the respondent in 1930 or 1931. He started as
branch manager and in approximately six years became city circulation
manager.' On January 27, he joined the Association at the solicitation of
Kramer and Harden. He thereupon became active in soliciting membership for
the Association, approaching approximately 15 of the respondent's employees
for this purpose.' On February 2, the day after the Association's first meeting,
Silveira was called in by Mahoney who asked him what he knew about Cooper's
resignation. Silveira said that he was "in no position to tell him." Mahoney
told Silveira that he was making a mistake, and that he should look out for him-
self and not think about others. A day or two later, Mahoney asked Silveira
about-a so-called "kitty." Silveira explained the operation of the "kitty" to him.'
On February 5, Mahoney took away Silveira's keys to the gasoline pump, the
garage, and the office and turned them over to Kelleher, the circulation manager.
Silveira was discharged on February 13, 1945, for the alleged reason that he
had been collecting moneys for the "kitty" without the respondent's knowledge,
and for which no accounting was made.
Shortly after his discharge Silveira had another interview with Mahoney, at
which time he offered to bring in receipts indicating how he (Silveira) had spent
the "kitty" money. Towards the end of February Silveira brought the receipts
to Mahoney, who did not look at them, stating that there was no question in his
mind as to Silveira's honesty. Mahoney, at this interview, asked Silveira to
"break away from . . . the union." Shortly thereafter Silveira resigned from
the Guild, and again saw Mahoney. Present at this meeting were all dis-
' The Board alleges that these discharges are discriminatory. The merits of this alle-
gation will be discussed in detail in a later section of this report.
{ This job is not to be confused with that held by Cooper and later by Kelleher. The
latter job consisted of the supervision of the entire circulation machinery of the respond-
ent, while Silveira supervised the circulation department for the city of New Bedford.
' John A. Ullman, an International Representative of the American Newspaper Guild,
a Board witness, testified that the employees holding jobs similar to that of Silveira and
Ellison (hereinafter referred to) are eligible to Guild membership and have been in-
cluded in appropriate bargaining units in the newspaper business in Portland , Maine,
and Boston, Massachusetts, among other places. On this, and other evidence, the under-
signed finds that both Silveira and Ellison were eligible for membership in the Guild.
' The "kitty" was a fund created for the purpose of reimbursing the respondent for
losses incurred because carriers left the respondent's employment without paying it for
papers which they had received from the respondent, and which had been delivered to,
and paid for by, respondent' s customers . These losses were known as "dead balances."
In addition the fund was used to pay for broken windows, damaged bicycles , and for other
damage done by the carriers
The "kitty" was created by withholding from the carriers, during their first week of
employment, a portion of their pay, which was turned over to the circulation manager
to be used as indicated.
E. ANTHONY & SONS, INC. 729
trict managers as well as Mahoney. Silveira told the group that he had been
cleared by Mahoney of all charges of dishonesty. Mahoney did not dispute the
statement. Silveira was not rehired, however.
2. Mary J. Harden
Mary J. Harden was first employed by the respondent on August 8, 1931, as a
bookkeeper. Thereafter she became Cooper's secretary and head bookkeeper. On
approximately January 27, 1945, shortly after Kramer's discharge, she met
Kramer and told him, according to her testimony, which is credited, that "we
were very much interested in starting a union in the department, that the whole
department seemed to want one." Kramer had some application blanks for
membership in the Association and gave her approximately 100 of them. Harden
then signed her own application and distributed the rest to Silveira and other
employees. She was elected secretary at the first meeting of the Association.
The following day she was called in by Mahoney, who asked her what she knew
about Cooper's resignation. She refused to discuss the matter. Mahoney said:
"I understand there is some kind of an organization starting in the circulation
department." . . . "Just as a matter of curiosity what does an intelligent girl
like you expect to get out of a union?" Harden testified that she told him that
she expected to get "job security," since "apparently no one had security on the
Standard-Times." "Kramer", she said, "had been there a number of years and
had been responsible for a great part of their'success,"and if he was fired, ... the
rest of us could expect the same treatment." Mahoney argued with Harden
"pro and con" as to what a union could get her, telling her that her work was
"very satisfactory" and that she was one of the "most intelligent" girls working
for the Standard-Times.
On or about February 7, Mahoney told Harden in a "threatening manner" that
you are on that side of the fence and I am on this side." At about the same time
Harden's duties were cut. She was no longer permitted to take care of the mail
and she was given no dictation. About the dame time Mahoney brought back to
the office a Mrs. Barney, who had resigned some two years before after her work
had been found unsatisfactory, and Harden was told to instruct her in her new
duties. At approximately the same time, Kelleher, the circulation manager, took
away Harden's keys to the office, the safe, and the stock room. He asked her for
the combination to the safe, which he turned over to Mahoney's secretary, and
thereafter Harden was not permitted to open it.
On February 1, Mahoney rehired a Jessie Caton to replace a girl who had
joined the union. Caton had previously resigned because of inability to do a
galley clerk's work. There was apparently some friction between Harden and
Caton as a result of Caton's new position. About February 6, Caton made a
sneering remark to Harden, and'Harden replied by calling her a "son-of-a-bitch."
Caton seemed unaffected by this exchange.
On February 13, Mahoney discharged Harden, giving her a letter which read :
"You are hereby discharged for neglect of your work, disregard of instructions
and interfering with the work of others of the department."
3. Sylvester Boff
Sylvester Boff had been hired by the respondent on September 1, 1944, as an
advertising salesman and collector in its Hyannis office, working under Dan B.
Gaylord and Halford R. Houser. Gaylord was the business manager and Houser
was in general charge of the Cape Cod Standard-Times office at Hyannis. Early
in February, Gaylord and Houser asked Boff if he knew anything about the
union. Boff said he had heard some rumors about it. Gaylord and Houser told
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boff they would like to enlighten him on the subject . They said that "the
union ... is really like a couple of racketeers living off the profits of youngsters".
Boff signed a union card on February 13 after having obtained it from Ellison,
who was discharged on February 15, and whose case will be discussed below.
About February 14, Houser told Boff that "We have knowledge to the effect that
you have joined the [ union]" and "that you have solicited membership in the
Union, of other members of the advertising department ." Boff denied that he
had joined , or solicited in behalf of the Union , but Houser told him that he
was in possession of evidence which proved the contrary . Houser then told-
Boff "your work is not as efficient as it should have been. In other words, we
are going to let you go for inefficiency ." Boff was then discharged.
Boff testified that he had been complimented on his work by Gaylord, Houser,
and Stiles 7 from the second week that he had been employed by the respondent
until his termination . He testified that he had tripled the respondent 's busi-
ness in the area which he serviced . The respondent called Eleanor Scudder,
one of its bookkeepers , as a witness . She testified that she did not have an ac-
curate record of the amount of new business produced by Boff as compared to
his predecessor , and could not tell which of the two had secured more. The
undersigned credits Boff ' s testimony.
4. Edmund B. Ellison
Edmund B. Ellison was first employed by the respondent on February 4, 1928,
as a subscription solicitor. He later became circulation manager 8 of the Cape
Cod Standard-Times. He joined the Association on January 29, 1945, at the
solicitation of Harden and Silveira. On February 2, Gaylord, business manager
of the Standard-Times, told Ellison that Mahoney wanted to talk to him. At
Mahoney's request,'Ellison drove to New Bedford that evening and met Mahoney
at his home. Mahoney said, "Of course, you know what you are here for?" El-
lison said that he knew no reason why Mahoney wanted to see him. Mahoney
said : "Let me put it to you this way ; do you belong to the union?" Ellison
said "Yes." "Well, that makes it easier," responded Mahoney. He asked Elli-
son why a man of his intelligence and ability had decided it was necessary to
join a union, and told Ellison that since he was obviously considered an under-
study for Cooper who had resigned, his future was being jeopardized by joining
a union. The interview continued for approximately four hours at the end of
which time Mahoney said, "Well, young fellow, apparently you have a lot of
heavy thinking to do ... If I were in your shoes I would do a lot of thinking."
About February 5 or 6, Houser, in the presence of Gaylord, told Ellison that
he had proof that Ellison was discussing union activities on company time. El-
lison denied the charge. Houser went on to ask whether Ellison was collecting
money from new carriers in advance for the privilege of carrying a paper route.
Ellison denied this as well.
On the morning of February 14, Ellison was called in by Gaylord and Houser.
They asked him if he had a "kitty." Gaylord had been aware of the fact that
Ellison had maintained a "kitty" for, at least the previous six months. Also
present at this meeting was S. Emory Bentley, attorney for the respondent.
Bentley questioned Ellison as to the operation of the "kitty." A statement was
then prepared, with Ellison's cooperation, outlining how the "kitty" operated.
Ellison signed it. At 7: 15 that night he was discharged by Houser who gave
him a letter stating that he was being discharged because he had engaged in
7 Paul Stiles was the manager of the advertising department of the Cape Cod Standard-
Times.
8 See footnote No. 5, supra.
E. ANTHONY & SONS, INC. 731
o'dtivities directed toward inducing the carriers of the company to break their
,contracts; collecting moneys for which no accounting was made ; and that he had
participated in outside business activities on company time.
Ellison admitted that he had had a part-time job which he had left eight or
nine months before his discharge. He testified that he had taken the job with
the permission of Cooper, who was then in charge of his work, and that Houser
had been aware of it for at least a month prior to his discharge. Houser did not
criticize Ellison at the time he first learned of this outside employment. There
was no rule of the respondent forbidding its employees to have outside employ-
ment. Ellison testified that he had never been asked to make an accounting of
the "kitty" funds ; that lie had run the "kitty" with the permission of his superiors ;
and that the respondent had full knowledge of the existence and the purposes of
the "kitty." He denied actively participating in signing up the carrier boys. His
testimony is credited.
5. William Thompson
William Thompson was first employed by the respondent on July 22, 1944, as a
truck driver. FIe became a district circulation manager in the Hyannis office in
January 1945, and joined the Association later the same month. On a Sunday,
early in February, Thompson attended a meeting of the Association. During that
day Houser and Gaylord called at his home three times. Thompson's wife refused
to tell them where he was and they became "quite insulting." Two or three days
later, Houser and Gaylord called Thompson to their office. They told him that
they thought the organizers of the Association "were a bunch of racketeers."
They asked him if he was in favor of a union. Thompson said he favored a union.
On February 15, Thompson was told by Houser that he was discharged, and given
a letter stating that he "was terminated for soliciting carrier boys to break their
contracts." °
Thompson credibly testified that he had asked the carrier boys to become mem-
bers of the Association so that the Association might become their bargaining rep-
resentative, and thus secure better contracts for them He credibly denied having
asked them to break their present contracts.
6. Bilsborrow Ainsworth
Bilsborrow Ainsworth began to work for the respondent shortly before Christ-
mas 1942 as foreman of the respondent 's garage. He received a pay raise about
December 1944. He joined the Association on January 29, 1945, and attended the
February 18 meeting where he saw Kelleher watching the meeting place. Ains-
worth was discharged on February 21 allegedly for the following reasons : he had
neglected his work ; taken company time to discuss outside matters ; interfered
with the work of others while on duty ; and disloyalty to the management.
Ainsworth testified that on February 10, 11, 12 , and 13 he had had difficulty with
a certain truck which had gone nearly 200,000 miles , and on which he had made
repairs and that Kelleher had spoken to him about the repairs, but did not
criticize his work. He denied that he had in any respect interfered with the
work of others , that he had neglected his work, or that he had discussed outside
matters on company time . He testified that he did not know what respondent
meant by the phrase "disloyalty to the management " but that as far as he knew
° On February 15 the respondent filed a Bill of Complaint in the Superior Court of
Massachusetts, in which it asked that an injunction issue against Kramer, Cooper, and
the Association, restraining them from "interfering with the existing contracts between
it [the present respondent] and the carrier boys." On March 7, 1945, the court issued
a temporary injunction granting the respondent ' s petition . The evidence does not indi-
cate whether the injunction was ever made permanent.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had never been disloyal in any way. He testified further that both,Kramer
and Cooper had congratulated him on his work when they had been in charge of it.
His testimony is credited.
7. Manuel M. Simas
Manual M. Simas was employed as a part-time track driver for the respondent
on March 16, 1944. He joined the Union on January 29, 1945, and regularly
attended all meetings, including the February 18 meeting where he saw Kelleher
watching those who attended the meeting. Early in March, 1945, Simas asked
Mahoney for an increase in pay. Mahoney said : "I am glad you came in. We
were afraid of you because you belong to the Guild." Simas asked Mahoney
whether, if he joined the AFL Truck Drivers' Union, Local 59, he would receive
an increase in pay. Mahoney told him that his Guild membership would bar his
joining the AFL. Mahoney later told Simas that the AFL would not accept his
application at that time.
Simas was discharged on March 20, 1945, by Mahoney who told him that he
was being discharged because he had had "wet bundles every week ," for "telling
the carriers at Branch C and Branch A was on strike," and for "causing a
riot at Branch C." Simas testified without contradiction that he had never had
any complaints about wet bundles, or that he had in fact had any wet bundles,'
that he had not told the employees at Branch C that Branch A was on strike,
that he had never refused to unload the truck at Branch A, and that he had
never caused a riot at Branch C.10 His testimony is credited.
C. Respondent's contentions
1. In general
The respondent did not call any witnesses except Eleanor Scudder, whose testi-
mony related exclusively to the amount of Sylvester Boff's production. The re-
spondent denies having committed any unfair labor practices . As to the dis-
charges, it contends that they were made for cause and not because of the em-
ployees' union activities ; as to'the other alleged unfair labor practices it denies
their existence, because it asserts that it was required to preserve its neutrality.
These contentions will now be discussed.
2. The discharges
The respondent contends that the basic reason for the discharge of Ellison and
Silveira' was that they ran "kittys," and had collected monies for which they
had made no accounting. The uncontradicted testimony indicates that the re-
spondent never requested nor required an accounting of these funds , although
it had full knowledge of the existence and operation of the "kittys." In addition,
the testimony is uncontradicted that none of this money was misappropriated.
It is found that Ellison and Silveira appropriated none of these funds for their
own purposes , and that the respondent was aware of this fact.
11 Simas testified that, on an unspecified date, as he was about to leave the main plant
in New Bedford , one of the paper carriers told him in the hearing of Mahoney and
Kelleher, that carriers at Branches A and C were out on strike The same carrier asked
Simas not to deliver papers to these branches , but Simas refused to accede to this request
and delivered the papers to Branch A. At Mahoney's request he unloaded the truck there
although this was not part of his duties. When Simas later arrived at Branch C with
additional papers a carrier boy jumped on his truck and asked him if the carrier boys
at Branch A were on strike . Simas answered "Yes." When Simas entered Branch C
he found that some windows had been broken and a railing torn down . He further testi-
fied that instead of inciting the carrier boys at Branch C as alleged by the respondent,
he tried to quiet them . His testimony is credited.
E. ANTHONY & SONS, INC. 733
There is no showing made by the respondent that it believed in good faith that
either Silveira or Ellison were dishonest in their handling of the "kitty" funds
Mahoney refused to look at the receipts which Silveira offered to produce after lie
had been discharged and, in effect, cleared him of any dishonesty at the meeting
with the district managers referred to above. The respondent took no steps to
advise either Silveira or Ellison that it frowned on the operation of a "kitty"
other than to notify them that they had been discharged for that reason.
Prior thereto, the respondent, through its general manager, Mahoney, had
made it quite clear to both Silveira and Ellison that it was opposed to their union
activity. Shortly after the first Association meeting, Mahoney asked Silveira
"what it was all about," told him that he was making a mistake, and that he
should look out for himself and not think about others. It was only after this that
Mahoney took away Silveira's keys and asked him about the operation of the
"kitty." In the case of Ellison, it was not until after Mahoney had asked him
whether he belonged to the union, and told him that his future was being jeopard-
ized by belonging to the union, and that he should do "a lot of heavy thinking,"
that the question of the "kitty" was raised Lest there be doubt as to the re-
spondent's intentions, Mahoney asked Silveira, after his discharge, to "break
away" from the Union. None of this testimony was denied.
The undersigned finds the respondent's arguments as to Silveira and Ellison
to be without merit, and on all the testimony and from his observation of the
witnesses, concludes and finds that they were discharged for union activity in
N iolation of the Act.
The respondent's argument as to Mary J. Harden consists essentially of the
statement that it was justified in discharging her because she refused to cooper-
ate with her fellow employees and swore at one of them. The undersigned finds
that Harden was not discharged for these reasons. Harden had been employed
by the respondent for 14 years and during that time, so far as the record shows,
there was no charge of any kind brought against her. If it were true that Harden
had suddenly changed and had refused to cooperate with her fellow employees
and had begun to use abusive language in the respondent's office, the respondent's
reasons for discharging Harden might have some merit. But Harden testified,
and the respondent did not controvert her testimony, that she had cooperated
with her fellow employees, and that she had done her work well. Furthermore
Harden's discharge occurred after certain other conduct of the respondent which
has been described above. She became secretary of the Association ion February
1. On the following day she was called in by Mahoney and questioned about
the meeting. She was told that her work was good, but that she was too intelli-
gent to join a union. A reasonable interpretation of the latter statement seems
to the undersigned to be that she was being warned that she would endanger
her job if she persisted in belonging to the Association. Shortly after this her
duties were changed to the point where she had very little left to do. When
viewed against the background of the other discriminatory discharges and un-
fair labor practices of the respondent herein discussed, it seems clear that when
the respondent, 12 days prior to her discharge, admitted to Harden that she was
a very capable employee, immediately thereafter threatened her, took away her
work, and then discharged her, the respondent was motivated by anti-union
purposes. The undersigned finds that Harden was discharged by the respond-
ent for her union activities and in violation of the Act.
The respondent's argument as to Sylvester Boff was based on the claim that it
discharged him because his work was unsatisfactory. This argument is with-
out merit. Boff testified that he had tripled the space sold by his predecessor,
and the one witness called by the respondent in the entire case, did not deny this,
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but stated , on the contrary , that she did not have an accurate record of the
amount of business produced by Boff as compared to his predecessor.
In Bog's case, the respondent did not hesitate to tell him that it had evidence
that he had joined the Association , on the day after he had joined . It was no
coincidence that immediately after Boff denied that he joined the Association,
Houser for the first time told him that he was inefficient , and was discharging
him for that reason. The pattern of events clearly indicates that Boff was dis-
charged because he joined the Association . The undersigned is convinced and
finds that the respondent discharged Boff for engaging in union activity.
The respondent argues that William Thompson was discharged for soliciting
the carrier boys to break the contracts which they had already signed with
the respondent . The undersigned credit, the uncontradicted testimony of Thomp-
son which indicates that he was solicit i ng the carriers to become members of
the Association , so that the Association might thereafter negotiate with the
respondent for new contracts . The undersigned is convinced and finds that
the respondent discharged Thompson for engaging in union activities.
Bilsborrow Ainsworth , the respondent argues, was discharged because of
neglect of his work, discussing outside matters on company time, interfering
with the work of others , and "disloyalty to the management ." As in the case
of the other discharges discussed herein, the respondent produced no witnesses
who testified as to the truth of the respondent's allegations . Ainsworth testified
that he had never interfered with others , neglected his work, discussed outside
matters on company time , or had he ever been disloyal to the management.
The undersigned credits his testimony . No effort was made by the respondent
to explain the phrase "disloyalty to management ," and the undersigned finds
that this phrase referred to the fact that Ainsworth had joined the Association.
In view of the foregoing , and upon the entire record , the undersigned is con-
vinced and finds that the respondent discharged Ainsworth for engaging in
union activities.
The respondent's argument that Simas was discharged for having "wet
bundles," and for the incidents at Branch A and C, is without merit. Simas
testified without contradiction that the phrase "wet bundles" referred to the
bundles of newspapers which were delivered by the respondent 's truck drivers
and which were usually protected by used newspaper mats from inclement
weather. He also testified without contradiction that there had been no rain
for at least 2 weeks prior to his discharge , that he had never been charged
with having "wet bundles" previously, and that, in fact he had never had
"wet bundles."
As to the incidents at Branches A and C, Simas testified , again without
contradiction , that he had not told the carriers at Branch C that Branch A
was on strike ( beyond answering a question ) and that lie had caused a riot at
Branch C.
The respondent did not attempt to deny Simas ' testimony that Mahoney had
told him that "we are afraid of you because you belong to the Guild ." , This
testimony clearly indicates that the respondent showed no hesitation in openly
expressing its bias against the Union as well as against the Association. It is
clear that the respondent did not discharge Simas for things which, it is
uncontradicted , he did not do. It is equally clear that the real reason for Simas'
discharge was that he engaged in union activity . The undersigned is convinced
and finds that the respondent discharged Simas for engaging in union activity.
E. ANTHONY & SONS, INC . 735
3. Interference, restraint, and coercion
The respondent contends that the Association was a "dominated organiza-
tion" and had to be destroyed or else the respondent would be liable to charges
under Section 8 (2) of the Act.
As hereinbefore indicated, the organization of the Association was undertaken
by Kramer, after he had been discharged by the respondent. Cooper, who
became business manager of the Association, resigned from the respondent's
employment a few minutes before the Association held its first meeting but 4
days after Association activity had begun. Both Silveira and Ellison were
eligible to membership in the Union.
Cooper did not engage in any active solicitation for membership in the organi-
zation while still in the respondent's employment. There is some testimony to
the effect that Silveira had told Cooper that the employees were getting into a
union, to which Cooper replied "Go ahead" and that he was "with" them. But
this statement does not indicate that Cooper was doing anything else than
expressing personal sympathy for the employees' efforts to organize, and does
not warrant the inference that the employees considered this as an expression of
management policy. The undersigned is convinced and finds that Cooper was
not acting on behalf of the respondent when he made this statement and that his
conduct did not constitute interference with respect to the organization of the
Association.
The respondent introduced no evidence denying that Kelleher had participated
in surveillance, nor did it deny that the testimony of Paczewicz as to Mahoney's
attempts to dissuade him from attending the union meeting. Mahoney and
Kelleher did not testify. It is found that Mahoney and Kelleher were acting on
behalf of the respondent at the time of their activities recited herein. These
activities were in violation of the Act u
The respondent's argument that it was forced to destroy the Association to
protect its neutrality, is without merit on other grounds. The discharges were
not defended by the respondent on the ground that these employees were en-
dangering its neutrality. Reasons given for the discharges were based on alleged
factual grounds but, as has been found above, they were not the real motive for
the discharges. That motive has been found to be the opposition of the respond-
ent to the organizational activities of its employees. The respondent discharged
these employees for their union activities. The repeated use of obvious pretexts
as grounds for the discharges, which occurred during the period of the union
activity, a period during which the respondent indicated its opposition in other
ways to such activity, plus the failure to offer evidence to support its asserted
reasons for the discharges, all strongly support the conclusions herein reached.
13 In the,Christian Board of Publication case, the court said :
The respondent must be held responsible for the acts of its supervisory employees
even though those employees may be included in an appropriate unit for collective
bargaining. If it were otherwise an employer could freely influence his employees'
freedom of choice by this means yet claim immunity . As between respondent and
its foremen the doctrine of respondeat superior applies and the responsibilities of
that relationship are not suspended merely because the foremen chance to be in-
cluded within the appropriate unit for collective bargaining.
N. L R B. v. Christian Board of Publication , 113 F. ( 2d) 678, 682 (C. C. A. 8 ). See also
Swift f Co . v N. L. R B., 106 F . ( 2d) 87, 93 (C. C. A. 10 ) ; N. L. R. B. v American Mfg.
Co, 106 F. ( 2d) 61, 67 (C C. A. 2) ; Virginia Ferry Corp v. N. L. R. B, 101 F. (2d) 103,
106 (C. C. A 4).
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent did not tell its employees to leave the Association because it
felt that its neutrality was being endangered. Not once, in-any of the cases of
discharge described above, did the respondent state to its employees that that
was the reason for its opposition to the Association. The respondent did attempt
to break up the Association but its reason is to be found in the fact that it was
opposed to its employees' exercising those rights guaranteed to them under the
Act. The undersigned finds that by these acts, and all of them, the respondent
has interfered with, restrained, and coerced its employees within the meaning
of Section 7 of the Act.
E. Conclusions
The foregoing findings of fact depict a continuous course of conduct on the
part of the respondent to destroy the Association and the Union.
The respondent by the actions of Kelleher spied upon the activities of the
Association and the Guild . Kelleher called Paczewicz into his car, and tried
to prevent him from attending the meeting . Mahoney, acting as an agent of
the respondent , endeavored to dissuade Paczewicz from attending the Associa-
tion Mahoney asked Silveira to break away from the Union . Harden was
questioned about -the Association by Mahoney . Mahoney told Harden that she
was "on one side of the fence and I am on this side of the fence ." Gaylord
and Houser told Boff that "the union . . . is really like a couple of gangstefs
living off the profits of youngsters." They later told Boff that they had knowl-
edge that he had joined the Union . Mahoney questioned Ellison about his
membership in the Union and endeavored to persuade him to resign by telling
him in effect that he was Cooper 's understudy and that he (Mahoney) could
not therefore understand why he had considered joining a union. Gaylord
and Houser told Thompson that the organizers of the Association were a bunch
of racketeers, and questioned him as to whether he was in favor of it. Manuel
Simas was told by Mahoney that "we were afraid of you , because you belong
to the Guild." By such conduct respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
It has been found that the respondent discharged Silveira , Harden, Boff.
Ellison, Thompson , Ainsworth , and Simas for the reason that they engaged in
concerted union activities , and because they joined and assisted the Association.
These findings are based on the fact that the conduct of the respondent in
connection with the discharges as well as the other activities described above
are of the same pattern of unlawful conduct.
It has been found that the respondent discriminated in respect to the tenure
of employment of Silveira , Harden „ Boff, Ellison , Thompson, Ainsworth, and
Simas, and by other conduct described herein has interfered with , restrained,
and coerced its employees in violation of the rights guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the respondent has engaged in conduct violative
of the Act, it will be recommended that it cease and desist not only from such
conduct, but from in any other manner interfering with , restraining , or coercing
E. ANTHONY & SONS, INC. 737
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent, acting through its agents Mahoney, Kelleher, Gaylord, and
Houser questioned its employees regarding their union affiliation, spied upon
them, endeavored to prevent them from attending union meetings, described
the union as racketeers and gangsters, and in other ways described above en-
deavored to dissuade its-employees from engaging in union activities. The re-
spondent's coercive .course of conduct to defeat self-organization and its objects
among its employees culminated in the discriminatory discharge of employees
Silveira, Harden, Boff, Ellison, Thompson, Ainsworth, and Simus, conduct with
"goes to the very heart of the Act.s 12 Upon the entire record, it is reasonable to
infer, and the undersigned finds, that the respondent has displayed an attitude
of opposition to the purposes of the Act to protect the rights of its employees
generally. Because of the respondent's unlawful conduct, and the underlying
purpose manifested thereby, the undersigned is convinced that the unfair labor
practices found are persuasively related to the other unfair labor practice pro-
scribed by the Act, and that danger of their commission in the future is to be
anticipated from the respondent's conduct in the past.'3 The preventive pur-
poses of the Act will be thwarted unless the remedy is coextensive with the
threat.
It has been found that the discharges of Silveira, Harden, Boff, Ellison, Thomp-
son, Ainsworth, and Simms were unfair labor practices. It will be recommended
that the respondent offer them (except Harden and Ellison) immediate and full
reinstatement to their former or substantially equivalent positions," without
prejudice to their seniority or other rights and privileges, and make each of
them whole for any loss they may have suffered by reason of the respondent's
discrimination against them by payment to each of them of a sum of money
equal to the amount each of them would normally have earned as wages from
the (late of their respective discharges to the date of the respondent's offer of
reinstatement, less their net earnings" during that period.16
12 N L R B v. Entwistle Manufacturing Company, 120 F (2d) 532, 536 (C C. A. 4) ;
see also N L R B V. Automotive Maintenance Machinery Company, 116 F. (2d) 350,
353 (C. C A. 7), where the Court observed. "No more effective form of intimidation nor
one more violative of the N L R Act can be conceived than discharge of an employee
because lie joined the union . . .
13 See May Depai tinent Stores Company v N L R B, 326 U. S. 376 , affirming as
modified 146 F. (2d) 66 (C C A 8), affirming 53 N L. R B. 1366
14 Harden and Ellison testified that they had no intention of returning to the respond-
ent's employ anent. It will therefore be recommended that as to them , the respondent not
be required to offer reinstatement.
13 By "net earnings" is meant earnings- less expenses, such as for transportation, room
and boaid, incurred by an employee in connection wifli obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Crossett
Lumber Company, 8 N L.'R. B 440 Monies received for work performed upon Federal,
State, County, municipal, or other woik-relief projects shall be considered as earnings.
See Republic Steel Corporation v N. L R. B , 311 U. S. 7
16 The undersigned credits Harden's testimony given on October 22, 1945 that she had
found other employment on March 4, 1945 She did not testify as to when she made up
her mind not to return to the respondent's employ. As to her, it will be recommended
that the respondent make her whole for any loss she may have suffered by payment to her
of a sum of money equal to the amount she would have earned as wages from February
13, 1945, the date of her discharge, to October 22, 1945, less her net earnings during that
period Ellison testified that he had made up his mind not to seek reinstatement from
the respondent during the first week of September 1945. It will he recommended that the
respondent make him, whole for any loss he may have suffered, by payment to him of a
sum of money equal to the amount lie would have earned as wages from February 15,
1945, the date of his discharge, to September 1, 1945, less his net earnings during that
period.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. American Newspaper Guild, C. I. 0., is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. Newspaper and Radio Workers' Protective Association of Southeastern
Massachusetts was a labor organization within the meaning of Section 2 (5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of John
Silveira, Mary J. Harden, Sylvester Boff, Edmund B Ellison, William Thomp-
son, Bilsborrow Ainsworth, and Manuel Al. Simas, thereby discouraging mem-
bership in the American Newspaper Guild, C. I. 0., and/or Newspaper and Radio
Workers' Protective Association of Southeastern Massachusetts, the respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent E Anthony & Sons, Inc, of New
Bedford and, Hyannis, Massachusetts, its officers, agents, successors, and as-
signs shall:
1 Cease and desist from :
(a) Discouraging membership in American Newspaper Guild, C. I 0., or any
other labor organization of its employees, by discrinnnatorily discharging or
refusing to reinstate any of its employees, or in any other manner discrimi-
nating in regard to their hire or tenure of employment or any term or condition.
of their employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, assist or
bargain collectively through the American Newspaper Guild, C. I. 0, or any other
labor organization, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the purposes of the Act:
(a) Offer to John Silveira, Sylvester Boff, William Thompson, Bilsborrow
Ainsworth, and Manuel M. Simas immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their seniority
or other rights and privileges ;
(b) Make whole John Silveira, Sylvester Boff, William Thompson, Bilsborrow
Ainsworth, and Manuel M Simas for any loss of pay they may have suffered by
reason of the respondent's discrimination against them, by payment to each of
them of a sum of money equal to the amount each of them normally would have
E. ANTHONY & SONS, INC. 739 '
earned as wages during the period from the date of their discharges to the date
of the respondent ' s offer of reinstatement , less their net earnings during such
period ; make whole Mary J. Harden 14 for any loss of pay she may have suffered
by reason of the respondent's discrimination against her , by payment to her of
a sum of money equal to the amount she would normally have earned as wages
from February 13, 1945 , to October 22, 1945, less her net earnings during that
period ; and make whole Edmund B. Ellison 18 for any loss of pay he may have
suffered by reason of the respondent's discrimination against him , by payment
to him of a , sum of money equal to the amount he would normally have earned as
wages from February 15, 1945, to September 1, 1945, less his net earnings during:
that period ;
(c) Post immediately at its newspaper plants at New Bedford and Hyannis,.
Massachusetts , and at all branch offices which it maintains in its business,
copies of the notice attached hereto,' marked "Appendix A ." Copies of said
notice, to be furnished by the Regional Director for the First Region, shall, after-
being duly signed by the respondent , be posted by it' immediately upon receipt-
thereof, and maintained for sixty (60) consecutive days thereafter , in conspicu-
ous 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 material ;
(d) Notify the Regional Director for the First Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 27,
1945, any party or counsel for the Board may within fifteen (15 ) days from the.
date of the entry of the order transferring the case to the Board , pursuant to.
Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building , Washington 25, D. C, an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon, together with the original and four copies of
a brief in support thereof . Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall,
serve a copy thereof upon each of the other parties and shall ' file a copy with
the Regional Director . As further provided in said Section 33, should any
party desire permission to argue orally before the Board, the request therefor,
must be made in writing within ten ( 10) days from the date of the order trans-
ferring the case to the Board.
ROBERT M. GATES,
Dated February 25, 1946. Trial Vxmn nen.
11 See footnote 16, supra.
18 See footnote 16, supra.
712344--47-vol. 70-48
'740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 organiza-
tions, to join or assist American Newspaper Guild, C. I 0., or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection
We will offer to the employees named below immediate and full reinstate-
ment 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 employees to be reinstated and made whole are : John Silveira, Syl-
vester Boff, William Thompson, Bilsborrow Ainsworth, and Manuel M.
Simas.
The employees to be made whole are Mary J. Harden and Edmund B.
Ellison. -
All our employees are free to, become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membersip in or activity on behalf of any such labor
organization.
E. ANTHONY & SONS, INC.,
Dated-------------------- By ---------------------------
(Representative ) (Title)
NoTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from, the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.