Gazette Publishing Co.

National Labor Relations Board - Board Decisions

Dec 31, 1952

101 N.L.R.B. 1694 (N.L.R.B. 1952)

1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert D. Page
Billie R. Sisson
Gerald L. Smith
Andrew J. Vickers
John H. White
Jessie Alexander
Ernest F. Brown
Alvis O. Campbell
Alton Lee ISeckard
Theodore Gilders
James Jackson
Jessie Lamb
James Lewis
John B. Lewis
Leonard Murray
Willie B. Olford
George H . Overshone
S. K. Sweats
Wookerson Teal
Josle F. Ward
Eddie Williams
WE WILL in the manner described in the section of the Trial Examiner's
Intermediate Report entitled "The Remedy" make each of the above-named
persons (other than Jessie Lamb) and, in addition , Vandy Paulette, whole
for any loss of pay suffered as a result of the discrimination against him.
The bargaining unit is :
All molders, coremakers, and apprentices employed at our Lufkin
plant exclusive of all other employees, watchmen , clerical and pro-
fessional employees, and supervisors as defined in the National Labor
Relations Act, as amended.
All our employees are free to become, remain , or refrain from becoming or
remaining , members of the above-named union , or any other labor organization,
except to the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
Dated----------------------------
TExAS FOUNDRIES, INC.,
Employer.
By--------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
GAZETTE PUBLISHING COMPANY ?Ind AMERICAN NEWSPAPER GUILD,
C. I. O. Case No. 32-CA-118. December 31, 196$
Decision and Order
On April 25, 1952, Trial Examiner Frederic B. Parkes, 2nd , issued
his Intermediate Report in this proceeding, finding, as set forth in the
copy of the Intermediate Report attached hereto, that the Respond-
ent had, in an isolated incident, violated Section 8 (a) (1) of the
Act but that the Respondent had not engaged in any other alleged
unfair labor practices. The Trial Examiner did not deem the isolated
incident sufficient to warrant the recommendation of a remedial order,
and recommended that the complaint be dismissed in its entirety.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report, a memorandum in support of exceptions ( supplementing
original brief to Trial Examiner), and the brief filed before the Trial
Examiner.
101 NLRB No. 251.
GAZETTE PUBLISHING COMPANY 1695
The Respondent's request for oral argument is hereby denied, as
the record and the exceptions, memorandum, and brief, in our opin-
ion, adequately present the issues and the positions of the parties.
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 exceptions, memorandum, and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tion of the Trial Examiner with the exceptions and modifications
noted below.
1. The Trial Examiner found, and we agree, that the Respondent
rejected the Guild's request for recognition as the bargaining repre-
sentative of the circulation department unit and insisted upon a Board
determination because the Respondent, in good faith, doubted not
only the Guild's majority status but also the appropriateness of in-
cluding the district managers in a unit of circulation employees. In
view of this finding, we need not, and do not, decide the merits of
the Respondent's additional defense, first asserted at the hearing,
based on the fact that the CIO, with which the Guild was affiliated,
did not come into compliance until after the time of the alleged
refusal to bargain in the circulation unit.
2. The Trial Examiner found, and we agree, that the circulation
department strikers had been permanently replaced by February 20,
1950, when the Guild for the first time unconditionally requested their
reinstatement. Under this circumstance, we find it unnecessary to
determine whether or not the district managers had engaged in acts
unprotected by the Act. Accordingly, we do not adopt the Trial
Examiner's finding that the conduct of the district managers also
relieved the Respondent from the obligation to grant an unconditional
request for their reinstatement.
Order
IT I8 THEREFORE ORDERED that the complaint in this case be, and it
hereby is, dismissed.
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and Mem-
bers Styles and Peterson].
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by American Newspaper Guild, C. I. 0., herein called
the Guild, the General Counsel of the National Labor Relations Board,' by the
Regional Director of the Fifteenth Region (New Orleans, Louisiana), issued a
complaint dated April 18, 1951, against Gazette Publishing Company, herein
1 The General Counsel and his representatives at the hearing are referred to as the
General Counsel. The National Labor Relations Board is herein called the Board.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the charges, complaint, and
notice of hearing were duly served upon the Respondent and the Guild.
With respect to the unfair labor practices, the complaint, as amended during
the hearing , alleged in substance that (1) the Respondent had refused to bargain
collectively with the Guild as the exclusive bargaining representative of the
Respondent's editorial department employees and circulation department em-
ployees in separate appropriate bargaining units, although a majority of the
employees in each unit had designated and selected the Guild as their statutory
representative; (2) on or about December 17, 1949, certain editorial and cir-
culation employees of the Respondent, named in the complaint, launched a strike
which was caused and prolonged by unfair labor practices of the Respondent
described in the complaint; (3) although the strikers made an unconditional
offer to return to work on December 23, 1949, the Respondent refused and con-
tinues to refuse to reinstate them to their former or substantially equivalent
positions, because the strikers had assisted or become members of the Guild or
had participated in the strike or had refused to work during the strike; and (4)
the Respondent had committed, authorized, instigated, and acquiesced in the
following acts beginning on or about August 21, 1949: ( a) statements and con-
versations interfering with and restraining activity on the part of its employees
for the purpose of collective bargaining and other mutual aid and protection and
interfering with and restraining membership and activity among its employees
in the Guild; (b) inquiring and interrogating its employees about their union
desires, sympathies, activity, and business; (c) warning and threatening em-
ployees against assisting, becoming members of, or remaining members of the
Guild; (d) urging, threatening, coercing, and persuading its employees to
abandon their strike; and (e) urging and attempting to persuade its employees
to "start a union of your own." The complaint further alleged that by the fore-
going conduct, the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of
the Act.
Thereafter, the Respondent duly filed an answer and an amended answer,
admitting certain allegations of the complaint but denying that it had engaged
in the alleged unfair labor practices and setting forth several affirmative de-
fenses. During the course of the hearing, the Respondent's answer was further
amended. On April 30, 1951, the Respondent filed with the Regional Director
a motion to make the complaint more specific, definite, and certain . Upon referral
of the motion to him, Trial Examiner Eugene F. Frey granted the Respondent's
motion in part and denied it in part. In accordance with Trial Examiner Frey's
order, the General Counsel submitted a bill of particulars on June 4, 1951.
Pursuant to notice, a hearing was held from July 9 to 28, 1951, inclusive, at
Little Rock, Arkansas, before Frederic B. Parkes, 2nd, the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. The General Counsel
and the Respondent were represented by counsel and the Guild by official
representatives. Full opportunity to be heard, to examine and cross-examine
the witnesses, and to introduce evidence bearing on the issues was afforded all
parties.
At the outset of the hearing, the Respondent moved for a further bill of par-
ticulars in respect to the complaint's allegations as to independent acts of
interference , restraint, and coercion. The motion was denied at that time, but
GAZETTE PUBLISHING COMPANY 1697
later in the hearing the undersigned withdrew his original ruling and granted
the motion in full. The Respondent also moved for the striking of all allega-
tions of unfair labor practices in the complaint which occurred more than 6
months preceding September 6, 1950, the date on which the first amended charge
was served upon the Respondent. The motion was denied, inasmuch as the
original charge, which was filed by the Guild on February 21, 1950, and served
upon the Respondent on February 25, 1950, tolled the running of the 6-month
period of limitation of Section 10 (b) of the Act .2 During the course of the
hearing, motions of the General Counsel to amend the complaint in certain
respects and of the Respondent to amend its answer were granted. At the
conclusion of the hearing, the undersigned granted a motion by the General
Counsel to conform the pleadings to the proof as to dates, spelling, and minor
variances. Ruling was reserved upon the Respondent's motion to dismiss the
complaint. The motion is disposed of in accordance with the findings of fact
and conclusions of law reached below. Upon the conclusion of the hearing, the
undersigned advised the parties that they might argue before, and file briefs or
proposed findings of fact and conclusions of law, or both, with the Trial Ex-
aminer. The parties waived oral argument. Thereafter, the Respondent and
the General Counsel each filed a brief with the undersigned.
The undersigned has noted that the General Counsel's Exhibits 28A, 28B,
28C, 28D, 28E, and 28F were inadvertently included by the official reporter in
the rejected exhibit file of the General Counsel and were incorrectly marked as
rejected. The Respondent's objection to the introduction of these exhibits into
evidence was originally sustained by the undersigned and the offer of the General
Counsel of these exhibits was rejected. However, when the Respondent later
withdrew its objection, these exhibits were introduced into evidence, as the
record shows. Accordingly, the undersigned has made appropriate notations
on these exhibits and transferred them to the General Counsel's exhibit file.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Gazette Publishing Company, an Arkansas corporation with its office and
principal place of business in Little Rock, Arkansas, is engaged in the printing
and publication of a daily and Sunday newspaper known as the Arkansas
Gazette. In the course and conduct of its business during 1950, a representa-
tive period, the Respondent purchased raw materials consisting principally of
newsprint, ink, metal, and comic and feature sections valued in excess of $800,000,
of which approximately 95 percent was received from outside the State of
Arkansas. The circulation of the Arkansas Gazette, in excess of 60,000, was
approximately 90 percent confined to the State of Arkansas. During the period
above-mentioned, the Respondent's newspapers carried news releases originated
by the Associated Press, an international news gathering organization, and
carried advertising of national organizations engaged in interstate commerce of
a value in excess of $250,000.
The Respondent admits that it is engaged in commerce within the meaning of
the Act.
2 Cathey Lumber Company, 86 NLRB 157 . See also I. B. S. Manufacturing Company,
et at , 96 NLRB 1263 and cases cited therein.
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
American Newspaper Guild is a labor organization affiliated with the Congress
of Industrial Organizations, admitting employees of the Respondent to
membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Organization of the editorial employees ; consent election; strike; alleged
refusal to bargain
By letter, dated August 1, 1949, the Guild requested that the Respondent
recognize it as the statutory representative of the editorial department employees.
After an exchange of correspondence between the Guild and the Respondent,
wherein the latter questioned the majority status of the Guild and stated that
it would not consider discussion of contract terms "until it is clearly deter-
mined by established procedures that a majority of editorial department em-
ployees desire representation by the American Newspaper Guild," and after the
filing of a 9 (c) petition by the Guild in Case No. 32-RC- 165, representatives
of the Guild and the Respondent met on or about August 16, 1949, and reached
an agreement for a consent election to be conducted by the Board. On August
23, 1949, the Guild and the Respondent executed a consent election agreement,
the appropriate unit being "all regular employees of the editorial department of
the Arkansas Gazette in Little Rock, Arkansas, excluding editor, associate
editors, executive editor, news editors, city editor, sports editor, state editor,
secretary to the editor and supervisors as defined in the Act as amended."
On September 2, 1949, the election was conducted and was won by the Guild.
On September 13, 1949, the Regional Director certified the Guild as the statutory
representative of the employees in the editorial unit.
On October 4, 1949, representatives of the Respondent and the Guild com-
menced a series of collective bargaining conferences. During the negotiations
a serious conflict in position of the parties arose over a paragraph in the Guild's
proposal, providing, "There shall be no discharges except for just and sufficient
cause." Various proposals and counterproposals were advanced by the parties
in respect to the clause in dispute, culminating ultimately on December 16, 1949,
with the Respondent's offer to arbitrate all dismissals except those for incom-
petency and offering also to arbitrate the other portions of the contract not
theretofore agreed upon. The Guild declined the offer and on the morning of
December 17, 1949, by vote of the editorial membership, determined to launch a
strike of the editorial employees at noon that day unless the Respondent ac-
cepted 1 of the Guild's 3 proposals in regard to the clause in dispute: (1) There
should be no discharges except for just and sufficient cause, (2) there should be
no reference in the contract to dismissals, or (3) all disputed dismissals should
be submitted to arbitration. When Publisher Hugh Patterson, Jr., was informed
of the Guild's decision, he refused to accept 1 of the Guild's previously announced
proposals and at noon on December 17, 1949, 23 editorial employees of the
Respondent launched a strike.
As mentioned above, the complaint alleged that the Respondent had unlaw-
fully refused to bargain in good faith with the Guild and that the strike was
caused and prolonged by the unfair labor practices of the Respondent. During
the course of the hearing, the Respondent's answer was amended so as "to allege
as additional defense to the complaint that the Congress of Industrial Organiza-
tions, the national organization with which the American Newspaper Guild is
affiliated and with which the Arkansas Newspaper Guild is likewise associated
GAZETTE PUBLISHING COMPANY 1699
or affiliated, was not in compliance with that portion of Section 9 of the Act
which required the filing of anti-Communist affidavits until on or about December
22, 1949, and, therefore, at the time the election was held on September 2, 1949,
and at the time of the certification of September 13, 1949, the Board had no
authority whatsoever to act in connection with any matter involving either the
American Newspaper Guild or the Arkansas Newspaper Guild, and, consequently,
said certification was of no force and effect whatsoever ; that in truth and in
fact, shortly after the strike began , the union involved herein lost a majority
of the employees in the editorial department, and there was no obligation of any
kind or character, legal or otherwise, upon the part of respondent to bargain
collectively or otherwise with the Guild."
In view of the recent Highland Park case,' and a line of decisions of the Board
issued thereafter , this defense of the Respondent has merit. Since the consent
election was conducted and the certification of the Guild was issued prior to
December 22, 1949, the date on which the Congress of Industrial Organizations,
herein called the CIO, with which the Guild was affiliated , came into compliance
with the filing requirements of Section 9 of the Act, it follows that the certi-
fication of the Guild was invalid.
Subsequent to the Highland Park decision and the hearing herein, the Act was
amended, in part to validate such elections as in the instant proceeding.` How-
ever, the following proviso was included in such amendment :
Provided, That no liability shall be imposed under any provisions of this
Act upon any person for failure to honor any election or certificate referred
to above, prior to the effective date of this amendment.
In view of the foregoing, the Respondent cannot be found to have refused
to bargain with the Guild as the statutory representative of the editorial em-
ployees in violation of the Act ; and the undersigned will accordingly recom-
mend that the complaint's allegations of an unlawful refusal to bargain in the
editorial unit be dismissed'
B. Alleged interference, restraint, and coercion as to the editorial employees
There remains for consideration whether the Respondent engaged in inde-
pendent violations of Section 8 (a) (1) of the Act as alleged in the complaint.
For the reasons stated above, certain allegations of the complaint, such as uni-
lateral acts by the Respondent after the Guild's certification, must be dismissed
inasmuch as they would be unlawful only because they would constitute a
"failure to honor" the Guild's certificate ; ° no discussion of such allegations
will be detailed in this Report.
1. Statements attributed to City Editor Sam Harris
The Guild's original charge, filed with the Board on February 21, 1950, was
served upon the Respondent on February 25, 1950. Therefore, Section 10 (b)
of the Act precludes any finding of an unfair labor practice before August 25,
1949, which was 6 months prior to the service of the charge. Accordingly, the
N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322.
Public Law 189, 82nd Cong. Cbapt 534, 1st Sess . Approved October 22, 1951.
The Bowling Green Rubber Company, 97 NLR13 770; Morrison Milling Company, 91
NLRB 875; The Advertiser Company, Inc., 97 NLRB 604; Union Bus Terminal of Dallas,
Inc., 97 NLRB 206; Reynolds d Manley Lumber Company, Inc., 97 NLRB 188.
The Bowling Green Rubber Company , supra.
242305-53-108
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned makes no findings upon the statements which employee Adren
Cooper' attributed to Harris in June 1949, and which Harris denied, or upon the
testimony of employee Walter Damtoft as to statements made by Harris early in
the summer of 1949.
Admittedly, Harris had conversations with employees Ruth Jacquemine,
J. Wiley Hightower, and Clark Ralston, which would be violative of Section 8
(a) (1) of the Act if they occurred after August 25, 1949. On direct examina-
tion Jacquemine fixed the date of her conversation with Harris as about August
27 but on cross-examination admitted that she could not state whether the con-
versation was 4 or 10 days prior to the election on September 2, 1949. High-
tower testified that his conversation with Harris occurred after August 20, but
was unable to fix the date more exactly. Ralston on the other hand insisted
that his conversation with Harris occurred a week or less after Harris returned
from his summer vacation.
Harris testified that he was informed of the Guild's request for recognition
as the statutory representative of the editorial employees early in August 1949,
and that 2 or 3 days later Executive Editor Harry Ashmore cautioned him "not
to say anything, not to discuss the situation with anybody and if any questions
were asked of me, to refer them to" Ashmore. Harris informed Ashmore that
"he was a little late. I had already done some talking." According to Harris,
he had discussions about the Guild with Ralston and all other employees under
his supervision, except Jacquemine, prior to the date Harris started his vacation
on August 6, 1949. Upon his return to work on August 22, he sought out Jac-
quemine as soon as possible and conversed with her about the Guild. Harris
appeared to be a forthright and candid witness, as did Jacquemine and High-
tower, who were frank and admitted their inability to fix the date of their con-
versations with Harris with preciseness. In view of Jacquemine's testimony,
admitted by Harris, it appears that she was the last employee under Harris'
supervision to be interrogated in regard to the Guild. Accordingly, it is found
that the conversations with Ralston and Hightower occurred prior to August 6,
1949, that the conversation between Harris and Jacquemine occurred on August
22 or 23, 1949, and that Section 10 (b) precludes a finding that any of Harris'
statements were violative of the Act'
On October 21, 1949, during the course of the negotiations between the Re-
spondent and the Guild, employee Damtoft was informed by the Respondent
that upon the recommendation of City Editor Harris, Damtoft had received a
promotion and salary increase of $2.50 a week under the operation of the Re-
spondent's pay plan initiated in June 1949. The following note was sent Dam-
toft by Harris :
Effective this week, you get a $2.50 raise. Also-though it is a futile
gesture-you are rated as a reporter (upgraded one grade under the late
7The record contains numerous errors or variations in spelling of several names of
employees, witnesses, and officials of the Respondent and the Guild. It is hoped that the
spellings used in this Report are correct ; when in doubt, the version given in documentary
evidence, such as payroll records and correspondence, has been used. In the interest of
brevity, the various errors in spelling have not been enumerated , since they are not suffi-
ciently serious as to mislead a reader of the record in identifying witnesses or individuals
referred to in testimony.
8 For the purpose of this Report, it is unnecessary to resolve the conflicts in evidence
as to Harris' statements and to set them forth for background purposes. Employee Eugene
Wirges testified and Harris denied that the latter told Wirges in October 1949 that Harris
"thought that the Pay Plan provided all we needed. In other words, that we did not need
a Union." It is unnecessary to resolve this conflict in testimony, for even if Wirges
were credited, it does not appear that the statement attributed by him to Harris was
violative of the Act.
GAZETTE PUBLISHING COMPANY 1701
lamented pay-merit plan .) I suppose that it is the last raise in which I
will ever exercise any discretion for you but congratulations, nevertheless.
Damtoft gave the following testimony, which was in accord with that of
Harris, in respect to a conversation with Harris a week or two later.
.. . I told Sam that I had noticed that he had cooled off in his relations
to me since the Guild had come in, and . . . I said , "I'm awfully sorry about
that, Sam. You've taken my participation in this thing personally, and I
didn't mean it personally." . . . Mr. Harris said, yes, he had taken it per-
sonally. That he thought he had fallen down somewhere along the line ;
he thought he could do more for us than the Guild had or could, and we
apparently thought otherwise.
The undersigned is unable to perceive any promise of benefit or threat of
reprisal on the part of Harris in either his note to or conversation with Damtoft.
It is accordingly found that neither Harris' note nor his statements to Damtoft
were violative of the Act.
2. Statements attributed to News Editor A. R. Nelson
According to employee Jacquemine, News Editor Nelson attempted to hold a
conversation with her in regard to the Guild 2 or 3 days prior to her conversa-
tion with Harris. Since it has been found that Harris' colloquy with Jacquemine
in regard to the Guild occurred on August 22 or 23, it would follow that the
incident with Nelson occurred on or about August 20, 1949, prior to the tolling
of the 6-month period of limitations of Section 10 (b) of the Act. The under-
signed accordingly makes no resolution of the conflicts in testimony as to this
incident.
Employee Preston Stephens also testified that he had a conversation with
Nelson before the election. On direct examination he placed the conversation
as occurring on August 27, but on cross-examination he admitted that he could
not fix the date of the conversation at any particular time in August or state
with certainty that it was prior or subsequent to August 22. In view of Stephens'
inability to fix the date of the alleged conversation with Nelson, the under-
signed makes no resolution of the conflicts in testimony but finds that, in any
event, the conversation fell within the period of the bar of Section 10 (b).
3. Statements attributed to Executive Editor Ashmore
On June 10, 1949, the Respondent inaugurated a new pay plan. On August 6,
1949, the Respondent distributed a "memorandum" under the signature of Ash-
more to the editorial employees and a meeting of such employees was held by
Ashmore. It is unnecessary to consider either the memorandum or statements
made by Ashmore at the meeting since they occurred beyond August 25, 1949,
the cut-off date of Section 10 (b).
At a date in August 1949, estimated variously by the witnesses, Ashmore
consented to meet with a group of about six editorial employees and discuss
questions which they raised in regard to the pay plan. Jacquemine testified on
direct examination that the meeting was held on August 31, 1949, but on cross-
examination she stated that it was held either on August 31 or August 24.
Wirges on direct examination testified that it was held "within two weeks . . . or
maybe possibly a week, before the election" of September 2, 1949; but on cross-
examination he admitted that the meeting he referred to might have been that
held on August 6. Of the General Counsel's witnesses to this meeting, only
Cooper was "positive" as to the date, that is, he was "positive that it occurred
within a week" of the election. Ashmore placed the meeting as occurring during
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the week of August 23, 1949. Since it is possible that the meeting transpired
after August 25, a consideration of the testimony and resolution of the conflicts
will be made.
According to Cooper, Ashmore stated "that if we voted for an election, we
weren't voting for a Union, we were voting for or against the Pay Plan."
Wirges testified that either Ashmore or Publisher Patterson 9 stated that "our
vote in the election, the NLRB election, would not be a vote for the Union,
but rather . . . vote against the Pay Plan."
In respect to the meeting in question, Ashmore gave the following testimony
Substantially, we covered the same ground we had covered at the August
6 meeting except that in this case they had some questions, specific questions,
they wanted to ask me, all of them dealing with the working of the pay
plan. Some hypothetical cases were cited and I tried to answer them as
best I could . I don 't recall that there was any particular new grounds
developed at that meeting.
Q. At that meeting, did you say in substances or effect that a vote for
the Union would be a vote against the pay plan?
A. No, sir, I did not.
Q. Did you make that statement at any other time?
A. No, sir.
Q. Did you at that meeting propose postponing the election?,
A. No, sir , the first I have ever heard of postponing the election was in con-
nection with this hearing. That was never discussed in my presence.
Q. Did you say that you felt that the pay plan had not been given a
fair chance?
A. Yes, sir. I think I did, and explained that it had only been in effect
about seven or eight weeks and that since there was no automatic date on
which pay would be granted other than the anniversary date of employment,
it would take at least six months for anybody to see exactly where we would
be ; that there were various cases under the pay plan at that time that
had been up for consideration because of that mechanical feature of it.
A careful consideration of Jacquemine 's testimony , including the direct , cross,
redirect, and recross examinations, leads to the conclusion that it lent more
support to the testimony of Ashmore than it did to that of Cooper and Wirges ;
in any event, she was unable to state definitely that Ashmore made the state-
ment attributed to him by Cooper and Wirges.
The fact that the pay plan was never abolished by the Respondent following
the election but was continued in effect also lends support to Ashmore's testi-
mony. Upon the foregoing and the fact that Ashmore impressed the under-
signed as a man of singular acuteness and intelligence, as well as a reliable and
convincing witness, the undersigned credits his version of the conference in,
question and finds that he did not utter the statements which were attributed
to him by Cooper and Wirges.
On September 2, 1949, the day of the consent election, Ashmore asked
employee Wirges whether he had voted. On the same day a similar inquiry
was made by Patterson of employees Wirges and Ralston.
At the close of the negotiation session between the Respondent and the Guild
on December 16, 1949, Wienman, president of the Guild local, and Ashmore
agreed to meet later in the evening for a drink at a hotel. When Ashmore-
arrived, Wienman and a group of Guild editorial members were assembled and
9 None of the other witnesses testified that Patterson was present at this meeting.
Patterson's denial that he made such a statement as testified by Wirges is credited.
GAZETTE PUBLISHING COMPANY 1703
Ashmore joined them . During the course of the social and convivial gathering,
the following occurred , according to Wienman 's testimony which was in part
corroborated by that of Damtoft and Stephens and which was reconcilable
with that of Ashmore :
Mr. Ashmore speculated aloud as to what would happen to all the em-
ployees who chose to go out on strike, should there be a strike. He assumed
that such strike could not be successful. He went into the technical and
strategic details as to why.... He said, "The only chance of such a strike
being successful would be in the event that the craft unions chose not to
cross the Guild picket line."
Q. Did he tell you why that was?
A. He considered the craft operations-apparently, he considered the
craft operations something that couldn't be replaced hastily.
Q. All right.
A. He also said that should the editorial employees be supported in this
strike by the Circulation Department, it would cause the Gazette only
minor inconvenience. He said that they did not actually distribute the
,newspapers , consequently , there would be no great loss . He said, and
I quote, "You are waving an empty gun, Alan."
Q. Did you have any answer for that?
A. I said, "You may he wrong."
'Since the above remarks of Ashmore appear to be within the protection of
Section 8 (c) of the Act, it is found that they were not violative of the Act.
Employee Stephens also testified that during the course of the discussion,
Ashmore said that "there were some members of the editorial staff whom he
would like to discharge." According to Stephens, "when he said that, I asked
him if you wanted to fire some of the people, since he had the authority, and
Mr. Ashmore replied in effect that he didn't have the heart to do it." Stephens
was not corroborated in this portion of his testimony by any of the other wit-
nesses of the General Counsel. Ashmore denied that he told Stephens that there
were some editorial employees whom Ashmore desired to discharge . Upon the
entire record and from his impression of the witnesses , the undersigned credits
Ashmore's denials and finds Stephens ' testimony not entitled to credence in
this regard.
Employee Ralston testified that when he turned in his copy to Ashmore about
noon on December 17, 1949, the deadline for the strike, Ralston remarked,
"Well, I better get out of here because I'll be persona non grata here in about
five minutes." Ashmore inquired, according to Ralston, "Well, you boys are
serious about that strike?" When Ralston replied, "Well, we voted to strike,"
Ashmore said, "Well, that's the silliest thing that I ever heard of. I don't
see that you have any reason whatever to strike."
In regard to this incident, Ashmore testified that when Ralston delivered
his copy, "I thanked him for doing it and told him I appreciated it. He was the
only one that came in and I think I probably expressed regret that the strike
was coming off and that was about the extent" of the conversation. Ashmore
denied that he asked Ralston whether the employees were serious about the
strike or said that the strike was silly and unnecessary. As between these two
witnesses, Ashmore appeared to be the more reliable and his version of the
colloquy is accepted.
In late November 1950, some of the editorial employees who participated in
the strike gave a farewell party for Jacquemine, who was leaving Little Rock.
After a few drinks and around 11: 30 or 12 p. in. they decided to invite Ashmore
to the party and Ashmore accepted the invitation. Jacquemine testified that
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Ashmore arrived and the hospitality of the house had been duly extended
to him and other guests, "the subject of the Guild and the strike naturally
developed, and Bob Douglas kept asking Harry, Mr. Ashmore that is, why he
had done us as he had, and Mr. Ashmore was replying in a vein that was one of
justification for himself.... Finally he said that the Guild-that we were just
going to ruin the newspaper business; that the union situation was-Well, some-
thing, but with professional people and unionization it could wreck the profes-
sion, and something along that line." It is found that Ashmore's opinions
were privileged, inter alia, by Section 8 (c) of the Act and consequently were
not violative of the Act.
In conclusion, the undersigned finds that by any of the inquiries or state-
ments above found to have been made by Ashmore, the Respondent has not
engaged in violations of Section 8 (a) (1) of the Act.30
4. The status of Carroll McGaughey
In August and September 1949 McGaughey was a copy reader, was included
in the appropriate unit for the consent election held on September 2, 1949, and
voted in the election without challenge. The Respondent contends that he
was not a managerial employee for whose statements or actions it was respon-
sible. The General Counsel argues that McGaughey's statements were attrib-
utable to the Respondent on the ground "that McGaughey is closely related to
the owner and to the Publisher of the Gazette ; that McGaughey was able to
arrange a meeting with Ashmore for the employees ; that McGaughey was able
to arrange a meeting between his Grand-Uncle, Mr. Heiskell, and Guild Vice-
President Eubanks in January 1950; that McGaughey was being openly groomed
for a managerial post in the Autumn of 1949; and that McGaughey was espousing
the very same argument as the acknowledged management representatives on
the election issues."
In view of the foregoing findings, it is clear that the last ground advanced
in the General Counsel's argument is without foundation. In regard to the first
ground relied upon by the General Counsel, the undersigned cannot agree that
McGaughey was "closely related to the owner and to the Publisher of the
Gazette." McGaughey was a grandnephew of J. N. Heiskell, editor of the
Respondent ; to state the relationship more specifically, McGaughey' s grand-
mother was a sister of Heiskell. McGaughey's relationship to Publisher Pat-
terson was a step or two more remote and not through consanguinity but through
marriage. That is, Publisher Patterson was a son-in-law of Heiskell. In other
words, McGaughey was a first cousin once removed of Mrs. Hugh Patterson, Jr.
It is true that at the request of some editorial employees, McGaughey, fol-
lowing conversations with them, did arrange for them to meet with Ashmore
to discuss the pay plan in August 1949 before the election, as above related.
The record does not disclose any particular necessity for having McGaughey
arrange the meeting. In view of the obvious cordial, friendly, and convivial
relationship existing between Ashmore and his staff, as evidenced by some of
the incidents discussed above, it would appear that any of them could have
arranged the conference with him.
In respect to his role in arranging the meeting between Vice-President Sam
Eubanks and Editor Heiskell, McGaughey testified credibly and without contra-
diction that Charles Gilmore, who was employed on the Toledo Blade and who
as The same conclusion is reached with respect to Patterson's inquiries to wirges and
Ralston on September 2, 1949.
GAZETTE PUBLISHING COMPANY 1705
had been a schoolmate of McGaughey, telephoned McGaughey and stated that
Gilmore had been requested by the Guild to inquire whether McGaughey would
arrange a meeting between Heiskell and representatives of the Guild to discuss
the strike issues. McGaughey replied, that "it seemed a little bit of a round-
about way of handling it, but that I would take it up with Mr. Heiskell and I
felt sure that he would meet with them at any time." The meeting between
Heiskell and Eubanks subsequently occurred in January 1950. The record fails
to disclose any reason for the indirection on the part of the Guild in arranging
such a meeting.
As mentioned above, McGaughey was a copy reader in August and September
1949, the material time in question, having entered the Respondent's employ on
January 6, 1947. In the absence of City Editor Harris, McGaughey, as well as
other employees, substituted in Harris ' stead. For a period, copy reader James
McDaniel assumed Harris' duties 2 days each week. Later in October 1949,
McGaughey substituted for State Editor Harry Young, while the latter was on
vacation. McGaughey testified, respecting his duties at the time in question,
that he had never been informed by any official of the Respondent that he was
a supervisor, that he had any authority to hire or discharge employees or effec-
tively recommend such action, or that he had authority to make changes in the
status of any employee or make effective recommendations thereto. McGaughey
also denied that he had ever assumed such action in respect to any employee.
He further denied that anyone connected with the Respondent had asked him
to take any action in connection with Guild activities, had authorized him to
speak management's views with reference to any matter pertaining to the
Guild, or had confided in him in regard to the views and desires of the Re-
spondent with reference to the Guild. In this regard, Duff, Ashmore, and
Patterson testified similarly concerning McGaughey's authority and status.
Ashmore and Patterson denied that they knew that McGaughey had ever pur-
ported to speak for the Respondent in regard to the pay plan.
At the meeting with the editorial employees before the election in August
1949, Ashmore, in reply to a question from them, told them that the Respondent
had made no commitment to McGaughey in respect to promoting him to a posi-
tion, at that time nonexistent, of managing editor but acknowledged that Mc-
Gaughey was a candidate for the position as were others.
Later in December, as mentioned below, arrangements were made to transfer
State Editor Young to another position and substitute McGaughey in the position
of state editor, late in December. When Young joined the strike on December
17, McGaughey was immediately made State editor. On November 15, 1950,
McGaughey became managing editor of the Respondent, thereby realizing the
hope which he had expressed to Damtoft of someday achieving that position.
In view of the foregoing, the undersigned is unable to agree with the General
Counsel's contentions that at the time in question, August and September 1949,
McGaughey was so closely related to the Respondent's officials and shared such
a community of interests with them or was held out by management to such a
degree as a trainee for a supervisory position that McGaughey's statements and
activities of which, so far as the record shows, the Respondent was unaware,
were attributable to the Respondent. In conclusion, the undersigned finds that
the record fails to establish that McGaughey was a supervisor, representative, or
agent of the Respondent, for whose statements the Respondent was responsible.
Accordingly, it is unnecessary to resolve the conflicts in evidence and determine
the exact nature of the statements respecting the pay plan made by McGaughey
to employees in individual conversations or at a Guild meeting to which he was
invited to express his views on the pay plan.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and the foregoing, the undersigned concludes and finds
that the complaint's allegations in respect to violations of Section 8 (a) (1)
by the Respondent in regard to the editorial employees have not been sustained"
Since the Respondent has engaged in no unfair labor practices, it follows that
the strike of the editorial employees on December 17, 1949, was economic in
nature and was caused by an impasse reached in negotiations over the Guild's
proposal for dismissals, previously discussed.
C. Allegations as to the circulation department tinit
1. Respondent 's special defense as to the alleged refusal to bargain
As mentioned above, the complaint alleged that on or about December 5, 1949,
the Respondent had unlawfully refused to bargain collectively with the Guild
as the exclusive representative of all employees of the Respondent's circulation
department. This unit included, according to the complaint, "specifically district
managers, road representatives, clerks, bookkeepers," and excluded "the circula-
tion manager and assistant circulation manager and all other supervisory
employees."
Following the decision of the Supreme Court of the United States in the
Highland Park case " on May 14, 1951, and the issuance of the Board's decision in
the Ford case l" on July 11, 1951, the Respondent amended its answer 14 during
the course of the hearing so as to assert an additional defense in regard to the
complaint's allegations as to the refusal to bargain in the circulation unit,
namely, that since the CIO, with which the Guild was affiliated, did not come
into compliance with Section 9 (h) of the Act until December 22, 1949, the
Respondent was under no obligation "to bargain with the Guild collectively at
any time with reference to . . . the circulation employees."
Inasmuch as the Guild's majority status as the statutory representative of
the employees in the circulation department unit was based upon application
for membership cards and not upon a certification by the Board, it seems clear
that a literal interpretation of the terms of the proviso contained in the recent
amendment to the Act, discussed above in reference to the complaint's allega-
tions as to the editorial unit, prohibits application of the proviso to the General
Counsel's contentions as to the circulation department unit.
Prior to the recent amendment to the Act, the Board had considered the
general issue posed by the Respondent's defense in the New Jersey Carpet case,"
wherein a majority of the Board held that a union's noncompliance with Sec-
tion 9 (f), (g), and (h) of the Act did not excuse an employer's refusal to bar-
gain with the majority representative of its employees during the period of the
union's noncompliance where the employer never asserted at the time of its
refusal to bargain that it was motivated by the union's noncompliance.
"The General Counsel's bill of particulars set forth a multitudinous number of inde-
pendent violations of Section 8 (a) (1) of the Act by the Respondent in respect to both
editorial and circulation employees. In this Report the recital of the evidence in regard
to such allegations has been limited to those allegations on which the General Counsel
relied in his brief or to those where the possibility of a colorable claim of violations might
exist upon the evidence adduced. No mention will be made of those contentions as to
which no evidence was adduced or as to which the evidence patently was insufficient to
sustain the allegation.
12 N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322.
13 Ford Motor Company (Canton Forge Division), 95 NLRB 127.
1* The Respondent's original answer and amended answer were filed on April 30 and
July 2, 1951, respectively.
116 New Jersey Carpet Mills, Inc., 92 NLRB 604.
GAZETTE PUBLISHING COMPANY 1707
The policy enunciated in this case was in large measure founded upon the views
of the Court of Appeals for the District of Columbia in its opinion in the West
Texas Utilities case .16 Although alternative grounds of the court 's opinion in
that case were reversed by the Supreme Court of the United States in the High-
land Park case, the Supreme Court denied a petition for writ of certiorari upon
that portion of the decision in West Texas Utilities case not overruled by the
Highland Park case.17 On November 2, 1951, subsequent to the effective date
of the recent amendment to the Act, the Board reaffirmed the New Jersey Carpet
doctrine in the I. B. S. Manufacturing case,' finding no merit in the employer's
contention, unasserted until the time of the hearing, that it was under no duty
to bargain, prior to December 22, 1949, because of the CIO's noncompliance with
the filing requirements of Section 9 or the Act.1°
In view of the foregoing, the undersigned finds that the Respondent's defense
in respect to the CIO's noncompliance, unasserted until the time of the hearing,
is to no avail insofar as the complaint's allegations regarding the circulation
unit are concerned.
2. Tentative findings as to appropriate unit of circulation employees
The complaint alleged that "all employees of the Circulation Department of the
Arkansas Gazette, including specifically district managers, road representatives,
clerks, bookkeepers, exclusive of the circulation manager and assistant circulation
manager and all other supervisory employees of the Circulation Department as
defined in the Act," constituted a unit appropriate for the purposes of collective
bargaining. Of the 29 employees on the payroll of December 9, 1949, the parties
are in agreement that the following supervisors should be excluded from the unit :
City circulation manager, circulation director, mail circulation manager, State
circulation manager, and manager of Pine Bluff circulation office. There is no
dispute that the following classifications of employees should be included in the
appropriate unit: City circulation bookkeeper, city circulation clerk, complaint
delivery clerks, complaint clerk, mail circulation clerks, State circulation book-
16 West Texas Utilities Co., Inc. v. N. L. R . B , 184 F . 2d 233 (C. A. D. C ).
11 West Texas Utilities Co , Inc. V. N. L. R. B., 341 U. S. 939. See also, Bethlehem Steel
Co. v. N. L. R. B., 191 F. 2d 341 (C. A. D. C.).
19 I. B. S Manufacturing Company, et al., 96 NLRB 1263.
19 It might be argued that the facts of the instant proceeding give rise to the question
posed by Chairman Herzog in the New Jersey Carpet case-namely, that the invocation by
the employer of the defense of a union 's noncompliance with Section 9 (f), (g), and (h)
at the time of refusal to bargain might excuse a finding of violation of Section 8 (a) (5).
(Cf. Sunbeam Corporation, 98 NLRB 525 .) That is, in the New Jersey Carpet case, the
union was not in compliance with any of the filing provisions of the Act at the time the
employer declined to recognize and bargain with it. In the instant proceeding, however, at
the time of the alleged refusal to bargain in the circulation unit, the Guild was in com-
pliance and although the CIO was not, it might be argued that the raising of the issue of
the latter ' s noncompliance by the Respondent would have been a futile gesture, being
contrary to the then current interpretation of the Act's filing provisions which the Board
deemed did not then require compliance by the parent federations of international unions.
(Northern Virginia Broadcasters , Inc., 76 NLRB 11 .) Here , the Respondent interpolated
its defense of the CIO's noncompliance immediately after the Board issued its decision in
the first Ford case, supra. Cf. N. L. It. B. v. Clark Shoe Co., 189 F. 2d 731 (C A. 1). Al-
though the I . B. S. Manufacturing case was issued subsequent to the recent amendment to
the Act and to the Highland Park decision , it is not certain that the Board has considered
this argument or the relationship between the New Jersey Carpet case and the proviso
to the recent amendment to the Act, these questions not having been posed by the I B. S.
Manufacturing case, where the union's majority status was based upon an election held
in 1946 , prior to the effective date of the present Act. For the purpose of discussion, it
will be assumed that the New Jersey Carpet doctrine is controlling in the instant
proceeding.
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
keeper, and administrative clerk-secretary. The parties were in disagreement
as to the inclusion or exclusion from the unit of the following classifications,
which will be discussed seriatim.
a. District managers
The General Counsel urges the inclusion of district managers in the unit. The
Respondent contends that they should be excluded for alternative reasons, (1) as
supervisors, asserting "although not all district managers . 0 . had supervisory
authority over 'other employees' they did have such authority with respect to the
independent contract carriers, whose functions somewhat parallel those of the
normal employee, so as to properly justify their exclusion under Section 2 (11) of
the Act from a bargaining unit of rank and file employees," or (2) as managerial
employees.
The Respondent divided the city of Little Rock into seven districts for the
purpose of delivering its newspapers to the homes of subscribers. A district man-
ager was assigned to each district and was in charge of the newspaper carriers
who distributed newspapers to subscribers. Each district manager obtained the
papers for his carriers at the Respondent's office around 3 a. in. and transported
them to his substation for distribution to the carriers.
Early in the hearing the General Counsel and the Respondent stipulated that
these "contract carriers" were independent contractors 2D In December 1949,
there were approximately 122 or 125 carriers each of whom had executed a
contract with the Respondent, whereby the Respondent leased to each carrier a
list of subscribers and a paper route, the carrier agreed to deliver regularly and
promptly the Respondent's newspaper to each subscriber at a set wholesale rate
with the understanding that the rate might be varied by the Respondent from
time to time to meet changing conditions on the route, the carrier agreed to pay
each Wednesday for all copies of the Respondent's papers which he had received,
the carrier agreed not to sell or assign the agreement, and the carrier posted a
bond deposit as a guarantee that he would abide by the agreement. The agree-
ment also provided that it might be canceled by either party upon 30 days' notice
and in the event either party violated the agreement, it was terminable immedi-
ately. The carriers under the district managers ranged in number from 17 to 26.
When vacancies arose on routes, the district manager interviewed prospective car-
riers and in effect hired them or, more literally, effectively recommended the ex-
ecution by the Respondent of their contracts. That is, having selected a carrier
for a vacancy, the district manager filled out the contract for the carrier's signa-
20 The parties' attention is directed to a recent decision of the Board issued since the
date of the hearing in the instant proceeding, in Citizen News Company, Inc, 97 NLRB 428,
and cases cited therein, dealing with the question of the status of newspaper carriers as
employees. Insofar as the issue was litigated in the instant proceeding, the undersigned
notes several factors which indicate that the newspaper carriers herein might occupy an
employee rather than an independent contractor status. It may be, however, that because
of the stipulation that the carriers were independent contractors, counsel did not adduce
evidence at the hearing substantiating their stipulation. Nevertheless, in view of the
factors establishing an employee status, relied upon by the Board in the Citizens News
case, and of the fact that similar considerations, in part, are evidenced by the record in
the instant proceeding, the undersigned, frankly, has doubt as to the status of the Respond-
ent's newspaper carriers, and, accordingly, the unit findings herein are made tentatively,
that is, upon the basis of the present record and the stipulation of counsel and for the
purpose of this Report alone. They should not be considered dispositive of the circulation
department unit question in any future proceeding where that might be an issue and in
which the status of carriers should be fully litigated. Upon this reservation and the
findings hereinafter made, the undersigned does not deem it necessary for the purpose
of this Report to reopen the record to take additional evidence in regard to the status of
the carriers.
GAZETTE PUBLISHING COMPANY 1709
tare, and in the event the carrier was a minor, secured the signature of the car-
rier's parent to the contract. With this completed, the contract was submitted to
the Respondent for the signature of the city circulation manager. So far as the
record shows, the city circulation manager in only 1 instance refused to execute
carrier contracts submitted by the district managers.
District managers trained the carriers under them and held meetings of their
carriers twice a week to promote sales and service. Almost continuous contests
for the acquisition of new subscribers were conducted among the carriers. When
the carriers entered the Respondent's service, they were given the option of oper-
ating under the "New Deal Circulation System," which provided for a variation in
the rate charged the carrier for his newspapers dependent upon his ability, or
to accept a flat rate set at the time of the execution of the contract. It appears
that a "tremendous majority of the carrier organization" operated under the
"New Deal Circulation System." The plan was largely administered by the
district managers who gave the carriers merit and demerit points depending upon
various factors of the carrier's work performance. The operation of the plan was
described by M. D. Nicholson, circulation director for the Respondent, as follows :
Under this plan, carriers were given merits and demerits. If they missed
papers, didn't pay their paper bill and a lot of other things, that was wrong
in handling the route, they were given demerits. Boys that had no com-
plaints and learned good salesmanship and applied it effectively and built
their circulation, were given better rates. There were two carriers in each
district that were affected, the two winning carriers [each month] received
a small rate reduction and the two low carriers received a small rate increase.
If a carrier was low three months in succession, he was automatically
replaced.
Thus, under the administration of the new deal system, district managers had
some discretion in the fixing of the rates charged the carriers for their papers.
District managers made spot checks of the performance of carriers on their
routes to determine whether the carriers were fulfilling their duties. When car-
riers were in arrears on the collection of bills on their routes, district managers
reprimanded them and at times went out with them to assist in making collections.
District managers had authority to terminate the contracts of carriers for non-
payment of bills, according to the credible testimony of Circulation Director
Nicholson, and could effectively recommend termination of the contract for other
reasons, such as inefficiency. According to District Manager Ford, when he
wished to replace a carrier, he was "usually able to persuade the contractor to
sign a resignation and submit that resignation to the Company." However, City
Circulation Manager W. D. Godfrey testified that "most of the time [the district
managers] would go ahead and terminate a carrier's contract without saying
anything to me about it."
District managers adjusted complaints as to service, made to the Respondent's
office, determining generally the measures to be followed, and reprimanded
carriers on whose routes the complaints originated. District managers collected
each Wednesday for the number of papers drawn by the carriers for the previous
week ending Friday. The carrier's weekly recompense was the difference between
the 30 cents charged by him to each subscriber for a week's subscription to the
Respondent's paper and the rate charged the carrier by the Respondent, multiplied
by the number of subscribers on the carrier's route.
Turning then to the Respondent's first ground in urging the exclusion of the
district managers, namely, that they were supervisors of the carriers. It is
clear from the foregoing that the district managers in all practical effect hired
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and discharged the newspaper carriers, or effectively recommended such action,
and also assigned , disciplined , and responsibly directed the carriers . The district
managers therefore appear to possess several of the attributes of a supervisor
set forth in Section 2 (11) of the Act. And were the carriers employees, the
undersigned would find that the district managers were supervisors . However,
the carriers were, according to the stipulation of the parties, independent con-
tractors, who are specifically excluded from the definition of "employee" in
Section 2 (3) of the Act. Therefore, the district managers did not supervise
"employees" as defined in Section 2 (3), and the Respondent's contention that
the district managers were supervisors must be rejected.73
The Respondent's alternative argument for the exclusion of the district man-
agers on the ground that they were managerial employees raises the question
whether because of the district managers ' supervision of the independent con-
tractors, the district managers ' interests were more closely allied to management
than with the circulation department employees in the unit . The undersigned
is of the opinion that the Respondent's contention in this regard must be rejected.
Initially, it must be noted that the supervisory nature of the district managers'
duties in regard to the carriers has little, if any, direct effect upon the other
circulation department employees within the unit. The degree to which the
district managers determine or formulate the Respondent's policy is insub-
stantial and although their decisions may commit the Respondent on rates and
income, it does not appear that their settlements with carriers whose contracts
ha%e been terminated or their adjustment of rates charged carriers for papers
involved amounts substantial enough to fulfill the Board's criterion for man-
agerial employees .22
In any event, the Board's recent decision in The Independent, Inc.,2' appears
to be dispositive of the Respondent's contention as to the managerial status of
the district managers . In that case, the Board found that district managers
who procured independent contractors as carriers, terminated their contracts,
and observed their performance records were neither supervisors nor managerial
employees within the meaning of the Act and accordingly included them in the
appropriate unit. However, the Board found another district manager, whose
carriers were not independent contractors but were employees hired and dis-
charged by him, to be a supervisor and excluded him from the unit.
In view of the foregoing, the present record, and the stipulation that the
carriers were independent contractors, the undersigned finds to the extent
limited in the margin above, that the district managers should be included in
the appropriate unit.
b. State circulation representatives
The General Counsel would include and the Respondent exclude six State
circulation representatives u who worked under the State circulation manager.
The representatives met with the State circulation manager each Saturday and
received their assignments for the following week. These assignments re-
quired each of the representatives to spend Monday through Friday traveling.
throughout the State on routes assigned them and returning to Little Rock
at the conclusion of their journey in time for the Saturday conference at the
n Cf. The Independent, Inc., 96 NLRB 192 ; Great Lakes Sugar Company , 92 NLRB'
1408 ; Northwestern Bell Telephone Company , 79 NLRB 549, 555.
"Cf Northwestern Bell Telephone Company, 79 NLRB 549 , 553-5 ; Westinghouse Elec.
tric Corporation . 89 NLRB 8; American Locomotive Company, 92 NLRB 115.
23 96 NLRB 192.
Y4 These employees were also referred to as road representatives.
GAZETTE PUBLISHING COMPANY 1711
Respondent 's office . They were concerned with the sale and distribution of
the Respondent's newspapers outside the city of Little Rock. At numerous
points, the representatives conferred with agents or dealers who, according
to the stipulation of the General Counsel and the Respondent, were independent
contractors, being parties to an agreement with the Respondent whereby the
dealers or agents were granted privileges of distributing the Respondent's news-
paper within a designated geographical area. In some instances, the dealers
were granted, by supplemental agreement, car, gasoline , or milage allowances.
Some dealers or agents employed other individuals, apparently not party to
any agreement with the Respondent, as carriers or helpers.
The State circulation representatives had authority to execute and to terminate
these agreements with the dealers or agents without conferring with the Re-
spondent 's office and to negotiate the best wholesale price for the Respondent's
newspapers, within limits, as well as travel allowances. They exercised discre-
tion to determine the amount of the bond to be posted by the agents or dealers,
to compromise claims of the dealers against the Respondent, and upon termination
of the agreement, to make a final settlement with the dealer and if necessary
to turn the matter over to an attorney for suit. They adjusted complaints with
the dealers and advised them of the Respondent' s policies and of the duties
the Respondent expected them to fulfill. About 75 percent of the road repre-
sentative's time was spent in the company of the dealers soliciting new sub-
scribers.
The Respondent urges the exclusion of the State circulation representatives
from the appropriate unit on the ground that they are either supervisory or
managerial employees. For the reasons set forth in discussing the status of
the district managers , the undersigned finds no merit in the Respondent's con-
tention that the representatives are supervisory employees. Although it appears
that the representatives have authority, to a somewhat greater degree than
the district managers, to enter into agreements with the dealers or agents,
binding upon and affecting financially the Respondent, the undersigned is not
persuaded on the basis of the present record that their authority in this regard
or the amount of their commitments made on behalf of the Respondent is suffi-
ciently substantial to warrant a finding that they are managerial employees.
Although their work is outside Little Rock, it appears, contrary to the Respond-
ent's contention, that there is a sufficient community of interest between the
State circulation representatives and the other circulation department em-
ployees to warrant the inclusion of all employees of the department in a single
unit. The State circulation representatives will accordingly be included in the
appropriate unit with the foregoing reservations.
C. Street sales manager
The General Counsel would include the street sales manager in the unit of
circulation department employees. The Respondent urges the exclusion of
the street sales manager on the ground that he was a managerial employee.
The street sales manager was responsible for all street sales of the Respondent's
newspapers in Little Rock. About 2,500 newspapers per day were charged out
to him and he in turn delivered supplies of the papers to newsdealers about
Little Rock, such as those in hotels and bus and railroad stations. These dealers
apparently were independent contractors or businessmen . In addition, the street
sales manager supplied newspapers to individuals who sold them on the streets.
Some had acquired paper box stands , by purchasing them through a contractual
installment plan from the Respondent. Apparently, there were others who
vended papers at various points about Little Rock on the streets. As to these
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individuals, those having stands and those vending on the streets, the record
is not clear as to their status. Although counsel stipulated that the contract
carriers and the dealers under the State circulation representatives were inde-
pendent contractors, the record contains no stipulation as to the street salesmen,
although in their respective briefs the Respondent implies that the street vendors
were included in the stipulation as to contract carriers and the General Counsel
refers to them as "newsvendors." According to Street Sales Manager Ferguson
the only individual contracts between the street news vendors and the Respond-
ent were those relating to the sale of street newsstands. The street sales man-
ager had authority to "work or hire" the news vendors, and according to Fergu-
son's testimony, he "could advertise for a corner man, and I could hire him,
put him to work selling papers. . . . But I couldn't come right out and tell him
I could fire him, because Mr. Godfrey had instructed me several times not to say
`Fire' a man. If I wanted to get rid of a man, I'd stop selling him papers."
In all, the street sales manager supplied papers to approximately 26 individuals.`
Most of the street salesmen came to the Respondent's plant to obtain their sup-
plies of paper. The street sales manager determined the area or location from
which the street salesmen would operate and moved them from one location to
another when necessary. He handled their complaints on damaged papers or
late deliveries, crediting their bill.
Assuming that the street salesmen and dealers to whom Ferguson, the street
sales manager, supplied papers were independent contractors, the undersigned
finds no merit in the Respondent's contention that the street sales manager was
a managerial employee, for the reasons related in the preceding sections of this,
Report and accordingly concludes that the street sales manager should be included
in the unit of circulation employees.
d. Assistant to city circulation manager
At the time in question J. O. Turner occupied the position of assistant to the
city circulation manager. The General Counsel contends and the Respondent
denies that the assistant to city circulation manager was a supervisory position.
Approximately half of Turner's time was spent in relieving six of the district
managers so as to give each of them a day off. Thus, each day, Turner took the
place of a district manager and worked from 3 a. m. until 6 a. m., delivering the
district manager's papers to his substation and distributing them to carriers
for distribution. In the event a carrier did not appear for work and Turner was
unable to locate him, Turner telephoned the district manager whom he was
relieving, and the district manager delivered the papers for the missing carrier,
inasmuch as Turner did not know the routes of the carriers. Ordinarily, Turner
was off duty from 6 a. m. until 2:30 p. m., at which time he returned to the
Respondent's offices and worked for an hour or so. At that time, he submitted
w The record does not clearly establish the number of street salesmen as contrasted to
the number of newsstand dealers in hotels and bus stations. There may have been 26
dealers and 13 street news vendors.
24 Of course, if the street salesmen, whom the street sales manager in effect hired and
discharged, were in fact employees, it would appear that the manager would be a super.
visory employee and should be excluded from the unit. Cf. the Board's determination as to
District Manager Cox in The Independent, Inc., supra. However, in view of the parties'
stipulation as to the contract carriers and dealers and agents under the State circulation,
representatives, the undersigned has assumed for the purpose of discussion that the street
salesmen were independent contractors and that the parties were of this opinion, althoughr
the record does not affirmatively state.
GAZETTE PUBLISHING COMPANY 1713
to City Circulation Manager Godfrey, who was concededly the supervisor of the
district managers and Turner, a report on the condition of the district manager's
substation and records. This report, made by checking specified items on a
mimeograph form, covered such things as the cleanliness of the office and the
completeness of the route books and other records. If the records were in-
complete, Turner called the attention of the district manager to the matter.
This report was the basis for one out of nine items on which Godfrey graded
the district managers on their work performance pursuant to the regulations
of the new deal circulation system, in a fashion similar and corresponding to
the grading of the carriers by district managers.
Upon assignment from Godfrey, Turner attended periodically the meetings
each district manager held with his carriers and gave the carriers talks or
lectures in relation to sales promotion in the hope of inspiring them to solicit
new subscribers to the Respondent's newspapers. Each week Turner also
attended the meeting of the district managers with Godfrey. At these meetings,
Turner, as well as the district managers , expressed opinions and suggestions.
When he was on duty in the afternoon, Turner was assigned to various tasks
such as assisting district managers collect delinquent bills from carriers or
going out on carriers' routes with the carriers and assisting them in obtaining
their collections. Turner advised district managers concerning problems with
their work and relayed orders and instructions from City Circulation Manager
Godfrey and Circulation Director M. D. Nicholson.
On some occasions when sales promotion contests were held among the district
managers , they were divided into two teams with Turner and Godfrey as
captains. At other times, however, District Manager Bradshaw and Godfrey
served as captains of the teams.
The record establishes that Turner never hired or discharged district managers
or other employees nor possessed authority to do so and that he had no authority
effectively to recommend the hire or discharge of district managers or other
employees" Although City Circulation Manager Godfrey would, in the event
of a vacancy in a district manager position, "sometimes ask Turner if he had
somebody or knew of somebody that he thought would be all right for the job,"
it appears from Godfrey's testimony that he gave no more weight to Turner's
recommendations than to those which district managers made on such occasions.
Godfrey admitted that he discussed the work performance of district managers
with Turner and that the latter expressed his opinion in that regard, but
Godfrey also discussed with District Manager Bradshaw the work performance
of other district managers.
In the absence of Godfrey, Turner assumed Godfrey's position to a limited
extent. According to the undenied testimony of Turner, he had substituted
for Godfrey only on three occasions; once when Godfrey was on vacation and
twice when he took the carrier winners of sales promotion contests on trips.
On those occasions Turner had no authority to discharge employees and con-
sulted with Godfrey's superior, Circulation Director M. D. Nicholson, on any
matters out of the ordinary. In Godfrey's absence from work, the following
"District Manager Ford testified that "Turner told me that he had invited Mr. Godfrey
to replace Mr. Hogan," a district manager. Turner specifically denied Ford's testimony
and testified that in Turner's presence City Circulation Manager Godfrey talked with
Hogan and the latter voluntarily resigned. Godfrey denied that Turner ever recommended
the discharge of any district manager. Upon the entire record and the undersigned's
impression of the witnesses, the undersigned credits the denials and testimony of Turner
and Godfrey and does not accept the testimony of Ford.
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
daily reports, ordinarily given to Godfrey for consideration , were submitted
to Nicholson : Circulation reports, number of newspapers distributed by district
managers , complaints , delinquent accounts , and street sales reports. Nicholson
testified credibly and without contradiction that Turner 's duties in assuming
Godfrey's position on occasions of the latter 's absence were only such duties as
he "marked up the daily charts on the district men's grades and he also gave
the district managers at the meeting the standing of the carriers ' accounts,
delinquent or otherwise , and also special complaint . A special complaint was
different from an ordinary complaint . That was about all he did, that Godfrey
carried on, while he was gone." It also appears that in Godfrey 's absence,
Turner , in behalf of the Respondent , executed the carrier contracts , the other
signatures to which the district managers had previously procured in the manner
set forth above." When Turner assumed Godfrey's duties, Turner continued
his normal routine of relieving each of the six district managers 1 day a week.
On these occasions he worked in Godfrey 's office from 7 to about 10: 30 a. m.
He also conducted the weekly meeting of district managers.
In addition , Turner took over the duties of the street sales manager when
the latter was absent or on vacation . During the vacations of the two city
circulation department clerks, Turner performed part of their duties by taking
complaint calls at the office from 7 a . m. until 1 p. m.
Turner's salary was $5 or $7.50 more per week than the highest paid district
manager .29 Turner 's car allowance was the same as that given six district
managers ; however , District Manager Bradshaw was given a car allowance
which was $22.15 in excess of that of Turner . All district managers submitted
time reports showing the hours worked . Neither Turner nor the street sales
manager was required to maintain such records . Although Turner admitted
that he told a field examiner of the Board that Turner exercised general super-
vision over the district managers and carriers and the testimony of Ford and
other district managers was to the effect that Turner was their supervisor,
this evidence , obviously in the nature of a legal conclusion or opinion , is offset
by equally probative conclusions of other witnesses . Thus, District Manager
Lavon Roetzel testified that Circulation Manager Godfrey was his immediate
supervisor and numerous witnesses for the Respondent testified that Turner
was not deemed to be a supervisor or to possess any more authority than
district managers ; according to Frank Duff, assistant to the publisher , Turner
"in general , was a trouble shooter in the city circulation department."
Upon the entire record, the stipulation as to the status of the newspaper
carriers 30 and the foregoing , the undersigned concludes and finds that Turner
28 The findings in this sentence are based upon the testimony of several district managers
and Turner , who indicated that he customarily signed the carrier contracts in the absence
of Godfrey , except in one instance when he refused to do so and requested the district
manager to hold the matter in abeyance until the return of Godfrey . According to God-
frey, he believed that Turner did not sign the carrier contracts in Godfrey 's absence but
held them until Godfrey returned. Godfrey's testimony is found to be erroneous to the
extent that it was inconsistent with the tesimony of the district managers and Turner
on this issue.
29 The stipulation of counsel places this figure at $7.50, but testimony of witnesses and
documentary evidence show the differential to be $5 in amount.
so Were the carriers employees, Turner , like the district managers , would be found to
be a supervisor.
GAZETTE PUBLISHING COMPANY 1715
was not a supervisor within the meaning of the Act and should be included in
the circulation department unit 91
For the purpose of this Report and upon the reservations heretofore expressed,
it is concluded tentatively that all employees of the Respondent's circulation
department, including district managers, State circulation representatives, clerks,
bookkeepers, street sales manager, and assistant to city circulation manager,
but excluding city circulation manager and all other supervisory employees
of the circulation department as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of the Act.
3. Sequence of events; alleged interference, restraint, and coercion in respect
to the circulation employees
a. Organization of the circulation employees; Godfrey's letter of November 30
As mentioned above, following the consent election, the Guild was certified
on September 13, 1949, by the Regional Director as the statutory representative
of the employees in the editorial department unit and on October 5, 1949, the
Guild and the Respondent commenced a series of collective bargaining con-
ferences. During the course of these negotiations, the Guild mailed campaign
literature to the employees of the circulation department about November
2, 194W-
On November 14, 1949, District Managers Joe Ford and ituel Bradshaw drafted
a letter to the Guild, indicating that the signers were interested in self-organiza-
n Turner's status appears comparable to that of the zone supervisors found by the
Board not to be supervisors within the meaning of the Act in Star Publishing Company,
74 NLRB 120, 123-6. The fact that Turner infrequently substituted for City Circulation
Manager Godfrey does not negate this conclusion. Cf. Florence Stove Company, 94
NLRB 1434. In the opinion of the undersigned, the record does not establish that state-
ments and activities respecting the circulation employees' self-organization attributed
by several witnesses to Turner, and in part admitted by him, are attributable to the
Respondent on the theory that Turner was acting as a representative or agent of the
Respondent. A finding that he was a representative of the Respondent could be based
solely upon the testimony of the circulation employees, attributing statements to Turner
that he purported to be acting in behalf of the Respondent. However, Turner specifically
denied that he made such statements to the circulation employees, holding himself out to
them as a representative of the Respondent. He further denied that any official or
supervisor of the Respondent ever requested him to take action to discourage circulation
employees from joining the Guild or to encourage them to relinquish their membership
therein, promised him any benefits to do so, or gave him instructions to take any action
in regard to the circulation employees' self-organizational activities. Circulation Director
Nicholson, City Circulation Manager Godfrey, Publisher Patterson, and Frank Duff,
assistant to the publisher, similarly denied, in sum and in brief, that Turner was ever
authorized to take any action or make any proposals to discourage the self-organization
of the circulation employees, to discourage their joining the Guild, or to encourage their
disaffiliation from the Guild. Nicholson, Godfrey, and Patterson further denied that
they had any knowledge of Turner's engaging in any such activities or making any state-
ments to circulation employees in respect to their self-organizational activities. None
of Turner's statements and activities in regard to the self-organizational activities of
employees occurred within the presence or hearing of any supervisor or official of the
Respondent . In view of the foregoing , the undersigned concludes that the record fails
to establish that Turner was a representative or agent of the Respondent or that the
latter was responsible for his statements and activities in regard to the Guild activities
of the circulation employees Cf. Mylan-Sparta Company, Inc., 78 NLRB 1144.
32 Upon the receipt of the literature, employee Anne Cowan telephoned City Circulation
Manager Godfrey and asked his opinion of the matter. Even If Cowan's version of the
conversation is accepted none of Godfrey's remarks to Cowan was violative of the Act.
242305-53109
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Upon securing 11 signatures thereto of employees in the circulation depart-
ment, they mailed the letter to the Guild about November 23, 1949.
On November 30, 1949, the following written "Instructions," under the signa-
ture of City Circulation Manager W. D. Godfrey, were given each of the district
managers:
You are to collect and turn in to the Gazette by the 5th of each month
all carriers' paper bills. Every paper bill in your district must be paid in
full by the 5th of each month and no balances on hand at all. You are to
report to me personally on the day of the 5th of each month to see if your
work as a district manager in regard to paper bill accounts is satisfactory
to the Gazette Publishing Company.
On the day he received the letter, District Manager Ford questioned City
Circulation Manager Godfrey about the letter and the latter said, "Well, some-
times drastic situations call for drastic measures." According to Godfrey, he
had no knowledge of the self-organizational movement among the employees
of the circulation department at the time he drafted the instructions set forth
above and the sole reason for the instructions was the delinquency in payment
of accounts by district managers. The record shows that on November 25, 1949,
there were 58 accounts of district managers unpaid, totaling $1,934.14 and that
there were more unpaid accounts with a larger total of arrearage for the 14
weeks prior to December 2, 1949, than for the corresponding period in 1948."
In view of these considerations, as well as his observation of the witnesses,
the undersigned credits Godfrey's testimony in this regard and finds that God-
frey's letter and statements referred to the delinquent accounts and were not
violative of the Act 84
Between December 3 and 5, 1949, 16 employees of the circulation department,
within the unit tentatively found to be appropriate, signed applications for mem-
bership in the Guild. As of December 5, 1949, the Guild thus represented a
majority of the 24 employees within such unit.
On December 3, 1949, the Guild by telegram informed the Respondent that the
Guild represented a majority of the circulation department employees and re-
quested recognition as their statutory representative. Upon receipt of the tele-
gram by the Respondent on December 3, Circulation Director Al. D. Nicholson
informed City Circulation Manager Godfrey of the telegram and the Guild's
request for recognition and instructed Godfrey, according to Nicholson's testi-
mony, "I didn't want him to enter into any discussion along the lines, go right
ahead the way he had always been performing his duties in the past in which
he assured me he would."
b. Conference between Guild and Respondent on December 5, 1949
On December 5, 1949, Alexander Hieken, international representative of the
Guild, and Alan Wienman and James McDaniel, employees of the editorial
83 For the 14 weeks prior to December 2, 1949, there were 671 unpaid accounts making
a total arrearage of $21,447.37. For the same period in 1948, there were 564 unpaid
accounts, totaling $17,113.92 in arrears.
0' Ford also testified that in a meeting of the district managers held by Godfrey on
December 1, 1949, Godfrey said that "he might get up on the wrong side of the bed some
morning and fire us all." District Manager W. L. Rosamond recalled that such a statement
had been made at a meeting of the district managers sometime prior to December 6, 1949
Godfrey admitted that he made the remark, partly in jest, at a meeting of the managers
held in the early part of November. The undersigned finds that this remark of Godfrey,
standing alone, was not violative of the Act.
GAZETTE PUBLISHING COMPANY 1717
department and officers in the Guild local,' met with Publisher Hugh Patterson,
Jr., in the latter's office and requested that the Guild be recognized as the statu-
tory representative of the circulation department employees and referred to
the Guild's telegram of December 3. Patterson admitted the receipt of the tele-
gram and pointed out that the signature of Hieken had been garbled in trans-
mission. Patterson told the Guild representatives, according to his credible
testimony, that he "had no knowledge that they had a majority they claimed
and that I disagreed with the claim that those people appropriately constituted
a unit and said that I would like to have the same process followed for the
determination of that that we followed in the editorial department," and re-
ferred to a number of pending negotiating sessions with several craft unions.'
During the course of the conference, Patterson acceded to Hieken's request that
the Respondent confirm in writing its denial of recognition of the Guild as the
statutory representative of the circulation employees. According to the undenied
testimony of Ilieken, Patterson launched into a discourse on the Guild's organi-
zation of the circulation department employees and stated that it appeared to
be a campaign of strategy, that apparently the Guild was "greedy for members,
or dues," that it would not tend to elevate the standards of journalism, and that
he saw no reason for a union in the circulation department.
The conference concluded as follows, according to the credible testimony of
Patterson :
And Mr. Hieken took a rather militant position of insisting that I recognize
them at once and begin immediately to consider wages and hours and work-
ing conditions, and other matters with them, and said that there were dis-
trict managers who had been threatened with firing and that there were
other conditions that were-and I don't recall at the moment those that he
mentioned-but he stated, I think, something about long hours they worked
and other things and I said to him that I felt that if any of them had the
feeling that they were in jeopardy or danger of being dismissed, that it
could have only resulted, I thought, in anything he might have been doing to
stir them up or from the literature they received and he then repeated the
charges of threat and other conditions that he described as deplorable and
85 Arkansas Newspaper Guild, Local 209.
36 Hieken denied that the question of the appropriateness of the circulation department
unit was raised by Patterson at this time and insisted that it was not raised until a post
strike meeting on December 27, 1949 Upon the entire record and his observation of the
witnesses , the undersigned does not credit Hieken in this regard but accepts Patterson's
testimony This resolution of the conflict in their testimony is supported by the fact that
Patterson mentioned the questionable supervisory status of district managers at a meeting
of such employees the following day and raised the issue in his first letter to the Regional
Office of the Board pursuant to its investigation of a representation petition filed by the
Guild on December 5, 1949, as well as by the fact that the supervisory status of district
managers in the newspaper industry is such a puzzling and complex one that it would
appear most logical for Patterson to be aware of the question and to voice it at the con-
ference with the Guild representatives . However , in reaching these conclusions, the
undersigned has considered the fact that Patterson made no reference to the appropriate-
ness of the unit in his letter to Hieken written on December 6, 1949. That letter read as
follows :
In reference to your telegram dated December 3, 1949, it is advised that we question
the existence of a majority of the employees of our circulation department who favor
representation for collective bargaining purposes by the American Newspaper Guild
Thus we do not deem it proper to enter into discussions with the American Newspaper
Guild with reference to this department unless it is clearly shown by established means
that such a majority does exist.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an expletive of incredulence and disgust, I uttered that scatalogical ex-
pression8
The undersigned finds that since Patterson's statements at the conference con-
tained no promise of benefit or threat of reprisal, they were accordingly not vio-
lative of the Act, being privileged under Section 8 (c) of the Act88
On December 5, 1949, the Guild filed a 9 (c) petition in Case No. 32-RC-191,
covering the employees in the circulation department and it appears that the
Regional Office of the Board processed the petition in the customary fashion.BB
c. Godfrey's interviews with certain district managers on December 5, 1949
On December 5, 1949, Godfrey conferred with certain of the district managers
individually in respect to the status of their accounts, pursuant to the instructions
issued them on November 30, and set forth above. District Manager Lavon
Roetzel testified that after discussing his unpaid accounts with Godfrey, the
latter concluded by saying that Roetzel "was a union man; [he] was on a one-day
stand," and to report the following afternoon on the status of the accounts.
District Manager Ford corroborated Roetzel's testimony; according to Ford,
he was waiting outside Godfrey's office while Roetzel was being interviewed
and overheard Godfrey say to Roetzel, "You are on a one-day stand ; you are
a union man." 41
District Manager Howard Tullos testified that his interview with Godfrey in
regard to unpaid accounts terminated by Godfrey's statement that Tullos "was
on a one-day stand on the remainder of the bills ; for in(, to go out and do the
best-well, get them in; just bring them in to him and report back to hint the
next morning." Tullos denied that Godfrey mentioned the Guild in the inter-
view. According to District Manager C. D. Taliaferro, Godfrey concluded his
interview with Taliaferro concerning unpaid accounts on December 5, 1949, by
saying, "You are a union man now; you are on a one-day stand; report back
tomorrow." Since D. L. Croft had recently become a district manager, Godfrey
87 Hieken's version of this portion of the conference differed in some of the details set
forth above. Upon the entire record and his impression of the witnesses, the undersigned
believes that Patterson's version is the more accurate and complete and accordingly it is
accepted.
^ earns Brick Company, 80 NLRB 389, 390, 402 , Stafford Operating Co., 96 NLRB 1217.
a9 The Respondent was informed of the filing of the petition and an exchange of tele-
phone calls and correspondence ensued between the Regional Office and the Respondent.
On February 1, 1950, the Regional Director issued a notice of hearing on the petition to
be held on February 8, 1950 On February 3, 1950, he issued an order postponing the
hearing until February 10. 1950. On February 8, 1950, the hearing was further post-
poned until February 23, 1950 On February 20, 1950, the (lay before the charges in the
Instant proceeding were filed by the Guild, the Regional Director issued an order with-
drawing and revoking the notice of hearing, having approved the Guild's request for the
withdrawal of its petition. The fact that according to the Highland Park decision, the
Board was not authorized to entertain or investigate this petition, since the CIO was not
in full compliance with the filing sections of the Act, seemingly would not distinguish the
instant proceeding from the New Jersey Carpet case, or bring it within the scope of the
proviso to the recent amendment to the Act, discussed above, even though certain matters
elicited during the investigation of the petition in Case No 32-RC-191 were introduced
in evidence in the instant proceeding.
40 This testimony was given on redirect examination and is semen hat puzzling when
contrasted with Ford's testimony on direct examination that he never conferred with
Godfrey in regard to overdue accounts on December 5 and that Ford "Alas called, but never
got to it." Godfrey was not questioned specifically whether he discussed the matter of
overdue accounts with Ford on December 5.
GAZETTE PUBLISHING COMPANY 1719
told him, according to Croft's testimony, that he "would be excused this month,
but would have to have them in by the 5th day of January." °'
Roetzel related to District Manager Rosamond the details of Roetzei's inter-
view with Godfrey and Rosamond consulted with Alan Wienman, an employee
of the editorial department and president of the Guild local. In this regard,
Weinman gave the following testimony :
Later in the day I was informed that there was a disturbance amongst
the circulation department people; that for some days now they had been on
edge about a letter they had received from a Mr. Godfrey in which they were
informed that they were going to have to comply with some certain condi-
tion or demand, or something, of the company's, and they considered that
there was a threat in this letter if they were unable to meet the terms of
the demand. Then during the day I was informed that Lavon Roetzel, one
of the circulation department people, had, I think he'd been turning in his
receipts or collections or something of that nature-I don't understand the
workings of the circulation department-and . . . [Godfrey] had made
some threat to Roetzel with reference to his union membership, and the
entire circulation department , Guild members , were quite upset.
At this point before relating the results of the action taken by Wienman in
regard to the Roetzel matter, Godfrey's testimony concerning the interviews on
December 5 should be considered. Godfrey specifically disclaimed the utterance
of the assonant lines attributed to him by Roetzel, Ford, and Taliaferro and
also denied that he mentioned the Guild in the interviews or informed any of
the district managers that they were on a "one-day stand" with respect to their
overdue accounts. His version of his conversation with Roetzel was that the
latter "had some accounts that he hadn't collected by the fifth, and I told him
that according to the letter he was to have all of his accounts in and that he
had failed to do that, and that I was going to give him another day to work
on his accounts, and that I wanted him to check in the next day, that it was
serious enough that I wanted a report the next day."
In view of the mutual corroborative nature of the testimony of Roetzel, Ford,
Taliaferro , Rosamond, and Wienman, the undersigned is persuaded that the
testimony of the district managers in regard to their interviews with Godfrey
should be credited and that Godfrey's testimony should be rejected insofar as
it was at variance with that of the district managers . The fact that the district
managers made no protest to the president of the Guild local until after the
interviews, although they were disturbed about the letter initially, lends sup-
port to the conclusion that Godfrey in fact made the statements attributed to
{i District Manager W L Rosamond's accounts were paid on December 5 and he was
not interviewed by Godfrey. Although the latter testified that he had an interview with
District Manager Bradshaw on December 5, the record does not reveal the details of
their conversation as to Bradshaw's unpaid accounts However, Bradshaw testified that
on December 5, apparently after Wienman's protest of the Godfrey letter, hereinafter
detailed, Godfrey told Bradshaw, "I didn't mean that letter like you men took it." When
Bradshaw replied, "How do you expect us to take it I It states what you meant," Godfrey
said, "Brad , I've just been fired I guess I'll even have to leave town." Godfrey denied
that he told Bradshaw that Godfrey was discharged or leaving town. According to God-
frey's recollection , sometime after December 5, Bradshaw said "something about there
had been rumors that I had been fired " Bradshaw impressed the undersigned as an un-
reliable witness whose testimony was given with a verve even more singularly than that
revealed by the printed record. As to this conversation, the undersigned from his observa-
tions of the witnesses credits the denials and testimony of Godfrey.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him by the afore-mentioned district managers . Moreover, Roetzel appeared
to be a more dispassionate witness than some of the other witnesses for the
General Counsel.
Returning to the steps taken by Wienman upon receipt of the complaint of the
district managers as to their interviews with Godfrey, Wienman attempted to
confer with Hugh Patterson, Jr., the Respondent's publisher, but the latter was
not in the office. Wienman turned then to Frank Duff, assistant to the pub-
lisher , and told him , according to Wienman's testimony, that there was "some
trouble in the circulation department which wants to get straightened out.
The district managers are all excited about a threat. One of them is supposed
to have received from Godfrey a threat, and about a letter they had received
from Godfrey." Duff summoned Circulation Director Nicholson. Wienman
explained to Nicholson that the district managers were concerned over God-
frey's letter of November 30 and feared they were to be discharged. Nicholson
replied that no dismissals of district managers were contemplated and that
Godfrey had no authority to discharge district managers without Nicholson's
approval. Godfrey was summoned and was requested to bring a copy of his
letter of November 30. Upon his arrival, his letter was read by Duff and
Nicholson and the latter stated that although he would have worded it dif-
ferently, lie had reprimanded Godfrey because of the status of delinquent
accounts and "told him that something had to be done about it." Godfrey
asserted that he did not intend by the letter to indicate that the district managers
were to be discharged. Upon the assurance that no dismissals were contem-
plated, Wienman left and reported the outcome of the conference to Rosamond,
who in turn informed Roetzel and other district managers .42
It is clear that Godfrey's statement to the district managers that "you are
on a one-day stand ; you are a union man" was coercive and ordinarily would
be found to be violative of the Act. However, when the president of the
Guild, Wienman, at the request of the district managers , discussed the matter
with Godfrey and his supervisors, Duff and Nicholson, Wienman was assured
that no dismissals were contemplated and as set forth below, later in the day,
Publisher Patterson similarly reassured Wienman. Wienman in turn informed
District Manager Rosamond who relayed the information to the district man-
agers. In view of these circumstances, the undersigned finds that the Respond-
ent effectively disavowed and repudiated Godfrey's statement on December 5,
1949, and it is found that the Respondent has not, by such statement of Godfrey,
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in the Act"
d. Meeting of district managers with Patterson on December 6, 1949, including
arrangements therefor
Upon his return to his office later in the afternoon of December 5, Patterson
was informed by Duff of the conference with Wienman in respect to Godfrey's
letter of November 30 and of Wienman 's initial request to confer with Patterson.
Thereupon , Patterson went to Wienman and asked if the latter still desired
to talk with Patterson about the matter. They went to Patterson 's office and
according to the credible testimony of Patterson the following colloquy ensued :
A
When we got there, I first apologized to Wienman for my scatology [at
the earlier meeting that day with Guild representatives when the latter
requested exclusive recognition as the statutory representative of the
d' The findings in htis paragraph are a composite of the mutually reconciliable testimony
of Duff, Nicholson, Godfrey, and Wienman.
53 Graham County Electric Cooperative , Inc., 96 NLRB 684.
GAZETTE PUBLISHING COMPANY 1721
circulation employees] and he expressed regret at the way the union's posi-
tion had been pushed and I am sure I told him that I wanted to confirm
what had been said to him by Duff and Nicholson that the letter simply was
in answer to a pretty deplorable condition of accounts and didn't threaten
discharge, and certainly, nobody was being threatened with discharge and
that I wanted an orderly process followed to determine this matter of
representation. He said, then, that he didn't know what Mr. Hieken had
been doing in the circulation department; that he had been having trouble
over the thing all day, interruptions with it, all day, and that he had
thought of doing it before, but that night he was going to have the Inter-
national to have Mr. Hieken taken out of this case . . . he said that he
didn't agree with the injection of the circulation issue at that time and
he expressed some concern over what effect it might have on our negotiations
on the editorial contract. I said to him that as far as I was concerned, it
would have none; that we seemed to be getting along well with it and I
hoped we were not far from completing it. He said that he thought it
would be very well if I would talk to the circulation men and just give
them my personal assurance that they had complete freedom to exercise
a choice if they were accorded a choice in a unit and he urged me to talk
with them. I told him at that time that I didn't feel I could call a meet-
ing of them ; that I was certainly aware of the law insofar as captive
audiences were concerned; and I asked him how lie suggested that I go
about it and he suggested that I call one of them"
Later that day, Patterson telephoned District Manager Bradshaw, and accord-
ing to the credible testimony of Patterson, the following ensued :
I called him and said that it had been represented to me that some or
all of the district managers wanted to see me and if that was the case, I'd
make myself available to them the next afternoon at 2: 00. "Well," he said,
"I can get them all there." I said, "Well, I am not talking about your
getting them all there. Any of them that you see, let them know I will be
glad to see them if they want to see me." That ended that phone con-
versation. Later on, he called me at home and said that he had been able
to get all of the men together and that they would be there at 2: 00 the
next afternoon and they would have Al Wienman with them and I asked
him the purpose for Wienman being with them and said that he apparently
had misconstrued my invitation. It was simply an invitation to any of
them that wanted to come see me and after finishing that conversation
with him, I called Wienman on the phone and asked him what his objective
was in coming with them and he said he had none. They had just asked
him to come, but if I thought he shouldn't be there, he wouldn't come and
that was the last conversation I had with respect to it 96
44 Wienman could recall no discussion of the Godfrey letter in this conversation with
Patterson. Upon the entire record, and the undersigned's observation of the witnesses,
the undersigned accepts Patterson's version of the colloquy and rejects Wienman's version
to the extent that it was at variance with the credited testimony. In comparison to
Wieninan, Patterson appeared to be the more credible witness. As the record reveals,
Wienman was often an evasive and reluctant witness and changed his testimony on one
vital portion of his testimony, as discussed, infra.
45 For the reasons previously indicated, the testimony of Bradshaw and Wienman is not
credited to the extent that it was at variance with the credible testimony of Patterson.
The undersigned is unable to accord any significance to an undenied detail of Wienman's
testimony, stressed by the General Counsel, to the effect that Patterson "told me that
he had told Bradshaw, in a half-humorous vein, 'This isn't to be a union meeting ; this
is to be a sort of anti -union meeting,' " inasmuch as, even according to Wienman, the
remark was apparently made in jest. Neither Bradshaw nor Patterson was questioned
with regard to this statement attributed to Patterson by Wienman.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These arrangements having been made, the district managers assembled at
the Respondent's office the following afternoon, December 6; however, they were
accompanied by Alexander Hieken, an international representative of the Guild.
The sequence of the principal events and discussion which ensued were as fol-
lows, according to Patterson's credible testimony which was undisputed as to
some details and corroborated by other witnesses as to contested issues :
Before we were seated, I addressed Mr. Hieken and said to him that he
hadn't been invited to my office and he said, "If you are going to take up
affairs with respect to the duties of these people and their condition, I think
I have a right to be here. I represent them."
I said, "Mr. Hieken, you haven't been invited to this meeting and I would
now like to invite you to leave," and he said, in some spirit, "If I leave, I am
going to ask these men to leave with me," and with that they turned and
left. . . . Well, I did a double take on that and started along to overtake
them ... I overtook them in the hallway at the rear of the business office
and said to them that I felt this action was a rather rude one and obviously
had been done for the effect of parading through the office and making some
demonstration and that I had understood they wanted to see me and had
merely made myself available to them for whatever purpose they had in
mind; and that it appeared to me that they just were acting without think-
ing, under leadership that was pretty much like sheep following a leader.
. . . Mr. Ilieken asked me if these men didn't have a right to join the
union and I said that had I had an opportunity in my office to say it to
them, that I would have said that there was no question of whether or not
they had a right to belong to a union ; that the only question was whether
or not they were appropriately in a unit as the Guild was requesting and
that that was the thing that could certainly be determined by legal process
and that there was no question in it with respect to any union activity. . . .
Well, as I recall, Mr. Hieken repeated some of the charges lie had made
about ill treatment of circulation men and was very demanding about it
and I asked him if he wouldn't just leave the premises and not come on
them unless he had some pertinent reason for being there in respect to
negotiation or legitimate representation of the Guild."
At that point, Hieken left the room, as did Patterson.
In addition, it appears from the undenied and mutually reconcilable testimony
of Hieken and the district managers that although Patterson stated that the
employees had a right to join or not to join the Guild, he also said that the
Respondent did not want a union in the circulation department, that his office
was open to any employees at any time to discuss problems, and that the Re-
spondent had instituted a new pay plan for them not too long before and had
installed a soft drink dispensing machine, the profits of which went to the
employee benefit fund."
9e Patterson ' s version of the colloquy , up to and through the sheep simile, was in accord
with the other witnesses ' testimony . Ford and Rosamond did not recall that Patterson
raised the question of whether the district managers were appropriately included in the
bargaining unit The testimony of District Manager Tullos , however , corroborated that
of Patterson in regard to this issue . Patterson specifically denied Ford ' s testimony which
attributed to Patterson the following statement : Perhaps , the Respondent "could have
met the union with force, with considerable force " Upon his observation of the witnesses,
the undersigned credits Patterson 's denial as well as the latter's denial that he mentioned
that he had any new pay plan or future benefits in mind for the district managers or that
he stated that he knew that the district managers were members of the Guild.
47 No findings have been based upon isolated remarks attributed by one witness to
Patterson ; incidental remarks unrelated to the issues of the proceeding have not been
set forth . For the reasons previously mentioned , Bradshaw 's testimony is not credited
except to the extent that it is in accord with the findings made in the text.
GAZETTE PUBLISHING COMPANY 1723
Considering all the circumstances and details of the meeting, including the
fact that it was arranged at the suggestion and with the full knowledge of the
Guild's president, that the district managers were still employees of the Respond-
ent as well as members of the Guild, and that Patterson's statements at this
meeting appear to be privileged under Section 8 (c) of the Act, as they contained
no promise of benefit or threat of reprisal, the undersigned concludes that the
statements of Patterson were not violative of the Act 48
Shortly after the meeting of December 6, Patterson assembled the supervisors
of the circulation department and business office to warn them from expressing
opinions to employees about Guild activity and told them that "as I understood
the law, there was considerable latitude for free speech, but I thought that any
exercise of it would be very dangerous and I would like to ask them to refrain
from any discussions whatsoever and if any questions were raised by an employee,
to refer the question to me."
e. Conference between District Manager Ford and Patterson
A few days after the meeting between Publisher Patterson and the district
managers on December 6, District Manager Ford, at his request, met with
Publisher Patterson and expressed his regret "for the acts of the group" at
the previous meeting. Ford's testimony, which is credited, attributed to Patter-
son the following statement : Patterson stated that he "felt . . . that presently,
the leadership of the American Newspaper Guild was Communist and he stated
without reservation that it had been Communist in the past, if not now." n In
addition, according to Ford's undenied testimony, Patterson stated, in an allegor-
ical fashion, that the choice available to the employees in respect to being
represented by the Guild was either to join the Guild and be represented by the
Guild or to represent themselves, the choice being comparable to two routes
from Little Rock to Pine Bluff, one circuitous and the other direct ; it was for
the employees to decide which route they desired to follow. It is found that
Patterson's statements, being privileged under Section 8 (c) of the Act, were not
violative of the Act 60
f. Conversation between Supervisor Clubb and employee Cowan
Between December 4 and 11, 1949, employee Anne Cowan, according to her
undenied and credible testimony, had the following conversation with Vivian
Clubb, who was mail circulation manager with two clerks under her supervision :
[Clubb] came over to my desk and asked me who the union affected, and
I asked her, "In other words, you want to know if your girls belong to
the union?" And she said, "Yes," and I told her that I knew neither one of
her girls belonged to the union.
4' Accurate Threaded Products Company , 90 NLRB 1364 ; Meier & Frank Company, Inc,
89 NLRB 1016, 10'20, 1039-41 ; Chance Vought Aircraft Division of United Aircraft Cor-
poration , 85 NLRB 183 ; Burns Brick Company , 80 NLRB 389, 390, 402 ; Gray Drug
Stores, Inc , 79 NLRB 1140.
49 Patterson ' s version as to this portion of the conversation was to the effect that Ford
said he "didn ' t know too much about the Guild and 1 don't know how it came up, but I
think in answer to a question about the anti -Communist oath, I said that I wasn't certain
whether or not it had been signed by the officials of the . . . Guild ." Although the mat-
ter is not free from doubt, although Patterson 's testimony has been relied upon as to other
issues, and although Patterson seems to be more reliable as a witness than Ford, the
undersigned has credited Ford's version of this portion of the colloquy since it appears
to the undersigned to be more plausible and consequently to be more nearly in accord
with what was probably said during the colloquy.
11 See footnotes 38 and 48, supra.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that Clubb's initial question, the meaning of which
was clarified by her answer to Cowan's inquiry, was an unlawful interrogation
in respect to the identity of union adherents and accordingly was per se violative
of Section 8 (a) (1) of the Act.
g. Activities of district managers on December 17, 1949, interviews by Patterson
of district managers on December 18
(1) Sequence of events
At this point, before considering the next series of events, it would be helpful
for an understanding of the following issues to recall that, according to the
stipulation of the parties, the newspaper carriers were independent contractors.
The contract between each of the carriers and the Respondent obligated the
carrier to deliver regularly and promptly the Respondent's newspapers to each
subscriber on the carrier's route and to give 30 days' notice prior to resigna-
tion or cancellation of the agreement. The contract also provided for the sig-
natures of sureties and for the posting of a cash bond, varying in amount from
$40 to $110, by the carrier as "a guarantee that he will abide by" the terms
of the agreement.
As previously mentioned the employees of the editorial department launched
a strike, commencing at noon on December 17, 1949. On or about the same
date, pursuant to instructions from the Guild, the district managers held meet-
ings of the carriers under their control or talked to them individually and
discussed action which the carriers should take on the early morning of De-
cember 18, when the district managers distributed newspapers to the carriers
at the substations or other points. The district managers requested the carriers
to respect the Guild's picket lines" and not to deliver the Respondent's news-
papers on December 18, and suggested that if the carriers declined to respect
the picket lines, they should deliver only to subscribers who had paid for their
papers in advance. In addition, in order to circumvent the Respondent from
recovering on the liability of those carriers who respected the picket lines
and refused to deliver their papers, as well as the sureties and cash bonds
of such carriers, the district managers urged the carriers to sign resignations'
which were predated at least 30 days or undated resignations which could
be predated 30 days by the district managers 63 The record affirmatively shows
that District Managers Ford, Roetzel,'4 and Rosamond obtained a number of
such predated resignations from their carriers and affords a basis for an infer-
Si At this time the Guild 's picket lines were confined to the Respondent 's plant but
District Manager Ford testified that he told his carriers they should consider that this
picket line extended to the substations.
7 These resignations were a form which were customarily executed at the direction of
the district managers when one carrier was substituted for another.
63 All district managers engaged in this activity. Although Croft denied that he engaged
in these activities , he admitted that he was present with his carriers at a meeting when
Bradshaw addressed both his carriers and those of Croft and exhorted them to respect
the Guild 's picket lines and to sign undated resignations . Roetzel's testimony in this
regard is discussed in the margin below and is not credited.
R4 Roetzel and Ford held a joint meeting of their carriers at the home of Ford in the
late afternoon and early evening of December 17. Roetzel denied that he made any request
that the carriers not cross picket lines or give undated resignations , but stood by while
Ford made such requests . However, Russell Smith, who was a carrier in Roetzel's dis-
trict, testified with candor and conviction that he signed an undated resignation in order
to protect his bond at Roetzel's request From his observation of the witnesses , the under-
signed credits the testimony of Smith and finds Roetzel 's denials to be unworthy of
credence.
GAZETTE PUBLISHING COMPANY 1725
ence that District Managers Tullos and Taliaferro also obtained them.6° Ac-
cording to Hieken, the district managers were to join the strike of the Guild,
after delivering the papers to the carriers on December 18."
Later on December 17, 1949, certain carriers and, in some instances , parents
of carriers , voluntarily informed the Respondent of the district managers'
exhortation of the carriers to respect the Guild 's picket lines and to sign the
predated resignations, and according to Patterson, Godfrey was instructed to
make "a spot check of carriers that he might know in every district to see
whether or not this was a city-wide proposition."
That evening Patterson telephoned International Representative Hieken and
stated that the Respondent had "reports of actions of the district men to try to
persuade carriers to violate their contracts" and that Patterson believed this
action to be violative of the secondary boycott provision of the Act. Patterson
denied that he told Hieken that he knew or thought the district managers were
going on strike the next day.`
When the district managers reported for work at 3 a. m. on the morning of
December 18, 1949, they were individually interviewed by Publisher Patterson,
in the presence of Circulation Director Nicholson and C. W. Tabb, western
manager of the Southwestern Newspaper Publishers Association. Each of the
interviews was in the same vein . Patterson stated that the Respondent "had
had reports from parents of carriers that certain of the district managers had
attempted to persuade carriers to sign predated termination forms and to not
carry their routes or to carry only the prepaid subscribers on the route," and
asked each district manager whether he had engaged in such activities, stating
that "as I viewed it, ours was a relationship at that point of employer and
employee and I thought that the question I asked him was a proper one ; that we
had a right to know whether he had engaged in such acts as that." Each of the
managers gave an evasive reply. Patterson continued, "You are ostensibly to
perform your work. Now, if tonight you go out and try to get carriers not to
throw the papers, not to accept their papers, or if you attempt to interfere with
them in any way from doing their duty, I feel you will be working against the
Gazette. If on the other hand you take your papers out and attempt as you
do normally, and have in the past, to have all your papers distributed and if
you encourage the carriers in every way you can, wake up any who aren't in the
substation and get them there, then you will be working for the Gazette. Tonight,
do you propose to work for or against the Gazette ?" Each indicated that he
was there "to work for the Gazette." Patterson then read Section 303 (a) (1)
and (b) of the Act to each district manager and stated that in regard to the
reports of the district managers' obtaining and attempting to obtain predated
resignations from the carriers, Patterson "was going to withhold any judgment
or action pending thorough investigation." During District Manager Rosa-
mond's interview, he mentioned that he hoped to be circulation director for the
Respondent some day and Patterson replied if the reports on Rosamond 's activi-
ties were correct, Patterson "thought that was a rather poor start." Each
manager, with the exception of Croft, was asked whether he objected to being
66 Only Bradshaw affirmatively denied the receipt of any predated or undated resigna-
tions from carriers , although he admitted that he urged them to sign such documents
Croft's testimony was to the effect that he did not receive any
66 The testimony of the district managers as to the time they intended to join the
editorial strike was vague, if not evasive. The findings in this paragraph of the text are
a composite of the testimony of the various witnesses.
67 The findings in this paragraph are based upon the testimony of Patterson, who ap-
peared to be a more reliable witness than Hieken. The latter's version of the conversation
is not credited except to the extent that it was in accord with that of Patterson
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accompanied by another individual that morning. None objected, and an in-
dividual from a group who had been assembled earlier by the Respondent "as a
safeguard preparation for alternative district managers if we had to resort
to it," accompanied all the district managers, except Croft, on their rounds
that morning."'
(2) Conclusions
The General Counsel contends that the activities of the district managers
on or about December 17, in seeking and obtaining predated resignations from
the newspaper carriers under their control and in urging them not to distribute
papers when delivered by the district managers on December 18, were protected
concerted activities and that Patterson's interviews with the district managers
on the morning of December 18 were violative of Section 8 (a) (1) of the Act,
inasmuch as the district managers were intimidated "into not carrying out
concerted activities." The General Counsel also argues that since these activi-
ties of the district managers were within the protection of the Act, the Re-
spondent's subsequent refusal to reinstate the district managers after they
ultimately joined the strike, as discussed hereinafter, was also violative of the
Act. The Respondent on the other hand urges that these activities of the
district managers were not protected concerted activities, thereby removing
them from the right of reinstatement, and that Patterson's interviews on De-
cember 18 were not violative of the Act. In this connection, the Respondent
argues, "It is established doctrine that employees cannot both remain at work
and strike. Such action, that is ostensibly performing normal duties while all
the time subverting the employer's interest through unlawful acts, has repeatedly
been held lawful grounds for discharge." In support of its argument, the Re-
spondent cites a number of court decisions, concerned with certain so-called
"partial strike" situations, wherein it was held that it is not illegal for an
employer to discharge employees who, instead of striking in the conventional
manner to support their grievances, persist in remaining on their jobs, while
refusing in defiance of reasonable instructions of their employer to perform
part of their allotted work tasks, and thereby in effect unilaterally attempt to
prescribe their own terms of work."
With respect to the activities of the district managers on or about December
17, 1949, it seems clear to the undersigned that their soliciting and obtaining
predated resignations from the carriers were acts of fraud and accordingly can-
not be said to be protected concerted activities.60 Admittedly, the purpose of
such resignations was an attempt to forestall the Respondent from recovering
upon the bonds and contract guaranties of the carriers who acceded to the dis-
trict managers' requests and plan that the carriers should not deliver their
papers the following day and thereby should violate their contracts with the
"e The quotations and the findings in this paragraph are based upon the credible testi-
mony of Patterson His denial that he read any law relating to fines or imprisonment to
the district managers is credited. The undersigned has carefully considered the testimony
of the district managers To the extent that such testimony was at variance with that
of Patterson, set forth aboN e. the testimony of the district managers is rejected For the
purpose of this Report it is unnecessary to resolve other conflicts between the testimony
of Patterson and the district managers Nicholson corroborated Patterson's testimony.
49 In its brief, the Respondent cites N. L R. B. v Mt. Clements Pottery Company, 147 F.
2d 262 (C A 6) ; C. C. Conn, Ltd. v. N. L R. B., 108 F 2d 390 (C. A. 7) ; Home Beneficial
Life Insurance Company v. N. L R B, 159 F 2d 280 (C A 4) ; N. L R. B v. Montgomery
Ward if Co , 157 F 2d 486 (C A. 8) ; N. L. R. B v Condensor Corp , 128 F 2d 67 (C A.
3) ; International Union, U. A. IV A., A. F. L, Local 232 v. Wisconsin Employment Rela-
tions Board , 336 U . S 245 . In this regard , see also Elk Lumber Company, 91 NLRB 333,
citing and reaching a conclusion in accord with the Conn and Montgomery Ward cases.
60 Cf. Washington National Insurance Co , 64 NLRB 929.
GAZETTE PUBLISHING COMPANY 1727
Respondent. The fact, stressed by the General Counsel, that the district man-
agers never submitted the resignations to the Respondent' s office is immaterial ;
the fraudulent acts were committed upon the solicitation and obtaining of the
resignations . It is therefore found that Patterson' s inquiries addressed to the
district managers in respect to their soliciting and obtaining the fraudulent
resignations from the carriers were not violative of the Act el
The question remains as to whether a portion of the district managers ' actions
in regard to the carriers may be severed from their fraudulent activities so as
to be protected under the Act and whether Patterson' s inquiries as to such sepa-
rable activities were violative of the Act. That is, it may be argued that the
district managers ' exhortation of the carriers to consider that a constructive
picket line extended to the substations, to respect such picket line, and if
they did not respect such picket line, to carry only prepaid subscriptions were
separable from their unlawful actions and were protected concerted activities
on the theory that they were legitimate actions which the district managers
were entitled to pursue either as preparation for their ultimately joining the
then current economic strike of the editorial employees or as support for the
strike of their fellow Guild members.
The undersigned is of the opinion and finds that the fraudulent acts of the
district managers were so enmeshed with their other statements to and requests
of the carriers that it is impossible to draw a distinction between legal and
illegal activities and that Patterson's statements and inquiries into the entire
matter of the district managers' activities as to the carriers were not unlawful.
On the other hand, it would appear that Patterson's interviews of the district
managers were not violative of the Act, even if it be assumed for the purpose
of argument that a portion of the district managers ' attempts to enlist the sup-
port of the carriers in the current economic strike of the Guild was separable
from the district managers' fraudulent activities and was concerted action pro-
tected by Section 7 of the Act, even though such efforts on the part of the district
managers were antipodal to the Respondent' s interests , were in contravention of
their customary duties to insure the prompt distribution of the Respondent's
newspapers by the carriers, and were engaged in at a time when the district
managers were not yet on strike but were still ostensibly working for the Re-
spondent. Under this assumption, the contrast between these activities of the
district managers and their nonperformance of their usual duties brings to mind
a line of related cases, having a similar issue-namely, those involving the dis-
charge of an employee who in the course of his duties was required to cross a
picket line of a labor organization and refused to do so .0 In one of these cases,
the Board observed that contentions and cases similar to those relied upon herein
by the Respondent were inapposite, inasmuch as the failure of the employee to
fulfill his duties because of his refusal to cross a picket line was not a "partial
strike" situation in which the refusal to perform work was a "wilfully con-
trived violation of plant discipline as a means to an end. It was, rather, a
necessary and unavoidable incidental effect of a form of concerted action under-
taken in a conventional and traditional manner." "' The Board has held in
these cases that discharge of an employee for refusing to cross a picket line
was unlawful. The distinguishing feature between the facts of the instant
case and the Rockaway News line of cases, as well as those relied upon by the
'n Indeed, had not the Respondent taken prompt action upon learning of the fraudulent
transaction9 of the district managers, it might have been held to have condoned such
activities and subsequently to be barred from questioning their legality.
62 Rockaway News Supply Company, Inc., 95 NLRB 336, and cases cited therein.
&' Cyril de Cordova & Bro , 91 NLRB 1121.
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, is that here, the Respondent did not discharge the district managers
on December 18 but merely interviewed them with respect to their activities in
regard to the carriers.
In considering this issue, the following quotation from the Board's decision
in the Rockaway News case is illuminating :
Although Waugh's refusal to cross the picket line was a protected activity,
the Respondent, as a normal incident of its right to maintain its operations,
could have required Waugh to elect whether to perform all his duties or,
as a striker, to vacate his job and make way for his replacement by the
Respondent.
Accordingly, even if it be assumed that a portion of the district managers'
actions as to the carriers was protected concerted activities, it seems clear that
Patterson's inquiries and statements to the district managers on December 18,
1949, were within the scope of the quotation above ; in effect, he asked them to
announce their decision of whether they were going to perform all their duties
or to join the strike.0'
In view of the foregoing, the undersigned finds that Patterson's interviews of
and statements to the district managers on December 18, 1949, were not viola-
tive of the Act eb
h. Godfrey's conversations with Cowan and Place
On December 17, Godfrey asked employee Cowan "what was going on around
there. There seemed to be quite a bit of excitement going on."
According to Godfrey, by excitement he referred to the fact that "everybody
[was] standing around talking to each other, not doing their work, running
around there like a bunch of chickens with their heads cut off." Cowan replied
that she and Place "were in a union." 00
About the same time, according to the undenied testimony of employee Place,
Godfrey asked her "what the district men were stirred up about . . . I told
him it was something that had been coming up for a long time."
Godfrey admitted that on December 17 he asked Place whether she would be
at work on the coming Monday, December 19, that she replied that she did not
know, and that he informed her that the "reason I wanted to know was I wanted
to see about carrying on the work." 07
Since Godfrey's questions as to the "excitement" in the office, as to the behavior
of the district managers, and as to whether Place would be at work on December
19, were somewhat obtuse, not necessarily relating to the employees' Guild ac-
tivities, it is not found that such interrogations were violative of the Act 00
i. Strike of the circulation employees
On December 18, 1949, about 10: 30 or 11 p. in., the Guild held a meeting of
the circulation department employees and the latter determined to launch a
81 Cf. Administrative Rulings of NLRB General Counsel , Case No 152 , 28 LRAM 1400
65 The fact that Patterson read some of the secondary boycott sections of the Act, inap-
plicable to the facts of the situation , does not negate this conclusion . Cf. The Texas
Company, 80 NLRB 862; Meier & Frank Co ., Inc., 89 NLRB 1016. In view of the conclu-
sions reached herein, it is unnecessary for the purpose of this Report to detail other con-
tentions and arguments of counsel in regard to this issue.
B8 The quotations are from Godfrey 's testimony ; Cowan was not questioned with regard
to this incident.
®i Place was not questioned at the hearing as to this conversation
08 American Manufacturing Company of Texas, 98 NLRB 226.
GAZETTE PUBLISHING COMPANY 1729
strike. At 3: 31 a. m. on December 19, 1949, the Guild filed the following tele-
gram with a Western Union office addressed to Publisher Patterson :
You are hereby notified that our members in the circulation department of
the Arkansas Gazette are on strike. They demand recognition of their
bargaining agent, the American Newspaper Guild and its local, the Arkansas
Newspaper Guild, and a contract and they fully support their fellow Guild
members of the editorial department in their just demands.
Although the telegram was ready for delivery at the Western Union's office
at 4: 21 a. m., December 19, 1949, the Respondent did not receive the telegram
until about 5: 30 a. in. that day when it was read to Publisher Patterson in a
telephone call from the Western Union office, according to the credible testimony
of Patterson.
Meanwhile, prior to notification of the strike of the circulation department em-
ployees, Publisher Patterson shortly before 3 a. in. December 19, 1949, observed
District Manager Rosamond handling some picket signs near the Respondent's
plant and asked Rosamond whether he was going to work that morning. When
Rosamond replied that he did not know, Patterson said, according to Rosamond's
testimony which was in accord with that of Patterson, "Well, I've got to know so
I can prepare if you . . . are not here."
When the district managers did not report for work at their customary time
around 3 a. in. on December 19, temporary replacements were sent out about 4
a. m. to distribute the Respondent's newspapers to the carriers. Shortly there-
after, about 4:15 a. m., Publisher Patterson and Executive Editor Harry Ashmore
made a tour of the five districts or substations of the Respondent in Little Rock
to determine whether the district managers were going to work. They ascer-
tained that each of the district managers was picketing his substation. Accord-
ing to District Manager Tullos, Patterson said to him, "I'm sorry you didn't report
for work this morning ; your job was there for you." 69 According to the mutually
reconcilable testimony of Rosamond, 'o Ford, and Patterson, the latter inquired of
Rosamond and Ford whether they had terminated their employment with the
Respondent and they replied that they were on strike. Patterson then said, "I
am sorry . . . but I will have to send someone to do your work." It appears that
Patterson had a similar conversation with District Manager Roetzel.z1
About the same time on December 19, prior to the Guild's notification of the
circulation employee strike, Frank Duff, assistant to the publisher, visited the
Respondent's substation in North Little Rock, where District Manager Bradshaw
was picketing. Duff asked to be given the key to the substation and when
Bradshaw ultimately surrendered it, Duff asked, "Bradshaw, have you resigned
your job?" Bradshaw replied, "I am on strike.""
w Patterson could not recall his conversation with Tullos . The latter 's testimony is
credited.
70 The testimony of Adren Cooper, an editorial striker who was present when Patterson
talked with Rosamond on December 19, was not in accord with that of Rosamond and is
not credited.
71 On direct examination Roetzel testified that Patterson asked him whether he desired
to sign a resignation. Patterson and Ashmore specifically denied that Patterson made
such a request . On cross -examination , Roetzel testified that Patterson asked him whether
he had resigned. Patterson was unable to recall his conversation with Roetzel on
December 19.
72 The findings and quotations in this paragraph are from the testimony of Duff, who
impressed the undersigned as an especially reliable witness. For the reasons previously
indicated, Bradshaw's version of the incident, which varied in certain detail and emphasis
from that of Duff, is not credited.
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including the delay in the Respondent's receipt of the
Guild's formal notification of the circulation employees' determination to join
the strike, the undersigned finds that the above queries and statements of
Patterson and Duff were not violative of the Act and finds no merit in the
General Counsel's contention, not alleged in the complaint, that the Respondent
discharged the district managers on December 19, in violation of Section 8 (a)
(3) of the Act.
J. Incidents involving the street sales manager
Street Sales Manager Ferguson testified that the following occurred on Decem-
ber 17 and 19, 1949: When he came to the Respondent's plant on December 17,
around 11 p. in., he saw a policeman and many of the Respondent officials and
asked City Circulation Manager Godfrey, "What's going on here?" Godfrey
countered, "Are you working?" Ferguson replied, "That was my intention, to
work." Accordingly, Godfrey turned to Donald Douglas, a newspaper carrier
standing nearby, and said to Douglas "Let him work." Ferguson went about his
work, checking out papers to his street salesmen. On December 19, after col-
lecting from the newsstands, Ferguson came to the plant about 10 a. in. and
found Godfrey and Douglas checking in the accounts of the street salesmen.
Again, Ferguson inquired, "What's going on here, Mr. Godfrey?" The latter
asked, "Are you still working?" Ferguson replied, "Yes, I'm still working until
I checked in." Godfrey turned to Douglas and said, "Let him check in." After
turning in his accounts, Ferguson went to Nicholson's office and gave him Fer-
guson's keys and said, "Mr. Godfrey has been trying to check me in for two
days. Now, I'm out on strike. There's the keys. I don't owe the Company
one nickel. I'm clear with the Company." An hour or so later, Godfrey tele-
phoned Ferguson and "asked me what I meant by it . . . I said, `What do you
mean?' Well, he said, 'We took it for granted you was a union man ; that's why
I took that action" of attempting "to put [Douglas] in my place twice." The
conversation concluded by Godfrey's saying, "You are on the losing side," to
which Ferguson replied, "Wait and see."
Douglas testified that 3 or 4 mornings a week he went to the Respondent's plant
in his truck to obtain the papers for his route when he was required to be early
on other employment and that on December 17 and 19, 1949, he was at the plant
for this reason. He denied that he had anything to do with checking in the
street salesmen. Godfrey had no recollection of Douglas' presence at the plant
on the mornings in question and testified that he did not transfer Douglas to
Ferguson's job when the latter joined the strike and never had an intention of
doing so. Godfrey denied that he told Douglas to permit Ferguson to check
in his accounts and that Douglas had anything to do with the turning in of Fer-
guson's or the street salesmen's accounts. Godfrey further specifically denied
Ferguson's testimony with respect to the alleged telephone call and to the 2-day
attempt to replace Ferguson. Godfrey testified that on the evening of December
17, he asked Ferguson whether he was going to work and the latter replied in
the affirmative. On December 19, according to Godfrey, he again asked Ferguson
whether "he was going to continue working ... he said he was a union man
and said he was going to go out on strike with the other fellows after he got
checked in." Godfrey admitted that he told Ferguson that the latter was on the
losing side and that Ferguson countered, "Wait and see."
Nicholson's version of his conversation with Ferguson on December 19 was
that Ferguson came to Nicholson's office and threw the keys on Nicholson's desk
and said, "Well, that's it. I am through . . . I am joining the strike." Nicholson
replied, something to the effect, "Well good luck to you."
GAZETTE PUBLISHING COMPANY 1731
Upon the entire record and his observation of the witnesses, the undersigned
credits the testimony of Godfrey, Douglas, and Nicholson in respect to the issues
raised by Ferguson's testimony and does not credit the latter's version except
to the extent that it was in accord with the credited testimony. It is found that
the statements and inquires of Godfrey and Nicholson were not violative of the
Act.73
4. Conclusions as to the alleged refusal to bargain in the circulation unit and
as to the status of strikers
In view of the foregoing findings, the status of the circulation strikers at the
time they joined the economic strike of the editorial employees turns upon a
determination of whether the evidence sustains the contentions of the General
Counsel that the Respondent unlawfully refused to bargain with the Guild as
the statutory representative of the employees in the circulation department
unit. The General Counsel contends and the Respondent denies that the Respond-
ent's rejection of the Guild's request for recognition as the bargaining repre-
sentative of the circulation employees and insistence for a Board determination
of the Guild's majority status and of the appropriate unit were based not upon
a bona tide doubt as to these matters but upon "a rejection of the collective
bargaining principle" and "a desire to gain time in which to undermine the union
or detract from its influence."
Upon the entire record, the undersigned cannot agree with the General Coun-
sel's contentions. Although some of the expressions found above to have been
uttered by the Respondent's representatives approached the boundary limits
between free speech and 8 (a) (1) violations, nevertheless there were no inde-
pendent violations of Section 8 (a) (1) prior or subsequent to the Guild's demand
for recognition in the circulation unit except that resulting from the colloquy
between Supervisor Clubb and employee Cowan and that of City Circulation
Manager Godfrey on December 5, 1949, which was promptly and effectively dis-
avowed by the Respondent. The remarks of Clubb, found to be violative of the
Act, are insufficient in the undersigned's opinion to establish that the Respondent
on December 5, 1949, in bad faith questioned the majority status of the Guild
and the appropriateness of the unit sought. In this connection, it is to be recalled
that the Respondent promptly agreed to a consent election in the editorial unit,
where apparently there were no substantial differences between the Guild and
the Respondent as to the appropriateness of the unit. However, in view of the
fact that the question of whether district managers in the newspaper industry
were supervisors has been one which has varied from case to case, depending
upon the particular facts in each instance, and which obviously has given the
Board concern in various cases, it cannot be said that it was unreasonable for
the Respondent to have raised the question of the status of the district managers
and of the appropriateness of including them in a unit of circulation employees
and for suggesting a Board determination as to their status. Indeed, on the
present record, it is by no means certain that the district managers were
employees and not supervisors.
73 The Respondent contends that Street Sales Manager Ferguson engaged in unprotected
concerted activities similar to those of the district managers prior to the time he joined the
strike Ferguson's testimony, though somewhat vague, was to the effect that he did not
urge street news venders to support the Guild's strike until after he had joined it The
testimony of Peter Henrickson, the only news vender to be called as a witness, was
confused as to the date of his conversations with Ferguson about the strike The under-
signed finds that the record does not support the Respondent's contentions as to Ferguson's
attempts to disrupt the distribution of the Respondent's papers prior to the time he joined
the strike.
2423055-53 110
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and the entire record , the undersigned con-
cludes and finds that the Respondent did not refuse to bargain collectively with
the Guild in the circulation unit within the meaning of Section 8 (a) (5) of the
Act."
It follows that since the Respondent engaged in no unfair labor practices
which were a causation for the strike of the circulation employees, the status
of the circulation strikers was that of economic strikers and not unfair labor
practice strikers on December 18, 1949, when they joined the economic strike
of the editorial employees. It is found that the purpose or cause of the strike
of the circulation employees was economic in nature, since they sought thereby
(1) to compel the Respondent to recognize the Guild as their statutory repre-
sentative and (2) to support their fellow Guild members in the editorial
department in their economic strike.
D. Alleged solicitation of strikers to abandon the strike
In the interest of avoiding a break in continuity of this Report between the
section detailing post-strike conferences between the Respondent and the Guild
and that relating conclusions to be drawn therefrom, it would be helpful at this
point to consider the evidence respecting the complaint's allegations of unlawful
solicitation by the Respondent of strikers to abandon the strike.
1. Croft and his route records
At the time of the strike of the circulation employees, some of the district
managers changed the locks on their substations and kept the keys and some,
including Bradshaw and Taliaferro, retained the route books which showed
the lists of subscribers to the Respondent's newspaper in their districts. Aside
from these records of the district managers, the only other list of subscribers
were those in the possession of the newspaper carriers. At the time of the
strike, District Manager Croft was delivering the papers to the subscribers on
one route in his district. When he joined the strike, he turned his records over
to Bradshaw and, as mentioned above, Bradshaw retained the records. As a
consequence, after the strike the Respondent had no list of the subscribers on
the route carried by Croft or on the routes in other districts where the managers
retained such records and the carriers in the initial period of the strike did not
distribute the papers. In those situations, routes were "blanketed" by the
Respondent, that is, papers were left at every residence on the routes where
the records were missing.
Shortly after the strike, Circulation Manager Godfrey asked District Manager
Croft to "teach the route-he had this route that he never had gotten off of.
I asked him to teach the route to somebody or either give us a list so we could
turn it over to a new carrier." 46 According to Croft, he had a similar telephone
conversation with Circulation Director Nicholson and, in addition, two individ-
uals, who presumably were employees of the Respondent, requested Croft to
show them the subscribers not only on the route which Croft had distributed
papers but also on the other routes in his district.
The General Counsel contends that each of these incidents constitutes "a
unilateral offer to Mr. Croft to return to work while Mr. Croft was on strike,
74 Cf Roanoke Public warehouse , 72 NLRB 1281 ; Arteraft Hosiery Company, 78 NLRB
333; Buzza-Cardozo, 97 NLRB 1342
75 The quotation is from, Godfrey 's credible testimony . Croft's testimony as to certain
details was extremely vague ; his testimony is not credited to the extent it was at variance
with that of Godfrey.
GAZETTE PUBLISHING COMPANY 1733
without offering reinstatement to the rest of the striking employees ." In view
of the fact that the records concerning Croft's routes were retained by Bradshaw
and the Respondent had no list of the subscribers on such routes, as well as
the considerations set forth below in conclusion , the undersigned finds that the
General Counsel 's contentions in this regard were wholly without merit and
that the Respondent 's afore-mentioned requests of Croft were not violative of
the Act.
2. Foreman Dodd ' s statements to pickets
Eugene Wirges and Clark Ralston, editorial employees who joined the Guild's
strike on December 17, testified that about December 19 or 20, 1949, while they
were on the picket line, they had conversations with Ernest Dodd, foreman of
the Respondent 's composing room. Although Dodd was a foreman , he was an
active member of the International Typographical Union, herein called the
I. T. U, and was covered by the contract between the I. T. U. and the Respondent.
Admittedly , Dodd had no authority over the editorial and circulation employees
and had never in the past relayed management policy to such employees.
Wirges admitted that the Guild had hoped that the I. T. U. and other craft
unions would support the Guild's strike and not cross its picket lines, that when
the craft unions failed to respect the Guild 's picket lines , the strikers bore some
resentment to the craft employees , and that a certain amount of heckling and
"name-calling," such as scabs and strikebreakers , occurred at the picket lines.
Wirges testified that about December 19, while he was on the picket line,
Foreman Dodd told him "that the strike was lost . . . apparently his chief reason
for his statement was that it was a CIO affiliated union . Ile said he believed
it was mismanaged and so on at that time ." On subsequent occasions , according
to Wirges , Dodd advised him "to go back to work, along with the rest of the
strikers , and the rest of the Union , to forego the strike and go back to work ; if
we had to have a Union , why didn't we join the A. F. of L., and generally
degraded the Guild . Said that they had crossed . . . the ITU picket lines in
several towns."
In similar vein Ralston testified that about December 19 or 20, 1949, while he
was on the picket line, Foreman Dodd said , "You boys . . . were certainly ill
advised to call a strike . You haven 't got a chance to win it. Why don't you go
on back to work while management will take you back?"
Foreman Dodd denied that the Respondent ever authorized him to attempt to
persuade strikers to return to work or that he ever attempted to persuade them
to abandon the strike . He further denied that he told Wirges that the Guild's
strike was lost because the Guild was a CIO affiliate and mismanaged , that he
ever advised Wirges to return to work with other strikers and forget the strike,
and that he ever advised Wirges that he should affiliate with the AFL if he
wanted union representation.
Dodd recalled a discussion with Wirges "over whether there was a Guild in
Springfield , Missouri . The printers were on strike in Springfield . The editorial
went back and worked in the composing room making up the paper. I called it
to his attention and he came back a few days later and said there was no Guild
in Springfield . I said, 'If there isn't, I am mistaken ,' but I did know that they
were working the composing room at the time."
Dodd denied also that he told Ralston or other strikers that the Guild could
not win the strike and that they should return to work. He admitted that he
told them that "they were ill-advised to strike " because "it was a new union.
They had never had a contract."
Although the matter is not free from doubt, the undersigned credits the testi-
mony of Wirges and Ralston in regard to their conversations with Dodd. The
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted argument over action of editorial employees in another strike situation,
the fact that the craft unions continued to work during the Guild strike herein,
and the heckling at the picket line, lend support to Wirges' and Ralston's versions
of their conversations with Dodd. Dodd's testimony is not credited except to the
extent it was in agreement with the credited testimony.
3. "Rembrandt" on the picket line
On a rainy day during the strike, the following conversation between Executive
Editor Ashmore and Harry Obsitnik, a striking photographer whose nickname
was Rembrandt, occurred at the picket line when Ashmore and Publisher Patter-
son approached the Respondent's offices, according to the credible testimony of
Ashmore ; Obsitnik jestingly remarked, "Isn't this a terrible way for a genius
to be spending his time?" Ashmore countered jokingly "that it was a shame for
a man of considerable and marked talents to be walking instead of taking pic-
tures or something to that effect." 16
4. The Respondent 's letter of January 14, 1950
On January 14, 1950, the Respondent sent the letter, set forth below, to each
of the striking editorial employees, and a copy of the letter to the Guild and to
both conciliators. The General Counsel contends that the letter was an un-
lawful solicitation by the Respondent to the strikers to abandon the strike.
The Guild strike against the Gazette is now four weeks old.
A week after the strike began we offered what the union informed us
was an acceptable compromise on the original strike issue-the dismissal
clause. However, the union then took, and has since maintained, the position
that the striking news employees would not return to work without the
circulation employees who had joined them. Our position is and has been
that the attempt of the circulation workers to disrupt our distribution or-
ganization before they walked off their jobs, and before their legal status
as a bargaining unit had been determined, has made their reinstatement a
practical impossibility. Their positions have been filled.
Until now, we have held open the jobs of all news department personnel
on strike. This has placed additional burdens on those employees who chose
to remain on the job. In view of the failure of all efforts to obtain a settle-
ment in the past four weeks, we do not feel that we are justified in asking
these men and women to continue indefinitely under such abnormal working
conditions.
Under the law, we cannot solicit striking employees on an individual and
selective basis to return to work. We have no alternative, therefore, except
to proceed with permanent rebuilding of our news staff. Effective Monday,
January 16, we will begin the permanent filling of such positions as remain
open.
This letter is being sent to each editorial employee now on strike.
5. Conclusions
In view of several recent decisions of the Board in cases having more numer-
ous statements, comparable to those of Dodd above, and containing similar
79 The tesimony of Patterson, Wirges, and Ralston in respect to the Obsitnik incident
was mutually reconcilable with that of Ashmore. Ralston on direct examination stated
that Ashmore or Patterson "kidded" Obsitnik "about the great artist being on the picket
line." On cross-examination, however, Ralston testified that he did not necessarily under-
stand the remarks to have been made in jest. Ashmore's testimony is the most complete
on the incident and is credited.
GAZETTE PUBLISHING COMPANY 1735
letters from employers to economic strikers, it is unnecessary to burden this,
already too lengthy, Report with any extensive rationale for the ultimate con-
clusion, in accord with decisions of the Board in cases having similar fact
situations, that the foregoing incidents and letters were not violative of the Act.
The letter and statements did not fulfill either of the Board's following recently
reiterated criteria in regard to unlawful solicitation of strikers :
For, although the Board has, in the past found individual solicitation of
strikers violative of the Act, in all such cases one or both of the following
two factors has been present: (1) The solicitation has constituted an
integral part of a pattern of illegal opposition to the purposes of the Act
as evidenced by the Respondent's entire course of conduct, or (2) the solici-
tation has been conducted under circumstances and in a manner, reason-
ably calculated to undermine the strikers' collective bargaining representa-
tive and to demonstrate that the Respondent sought individual rather than
collective bargaining."
The undersigned concludes and finds that by the foregoing incidents and by
the letter sent to the editorial strikers, the Guild, and the conciliators, the
Respondent did not engage in violations of the Act.48
E. Post-strike negotiations
1. Sequence of events
On the afternoon of December 23, 1949, representatives of the Guild and the
Respondent met with Kelton Call, labor commissioner for the State of Arkansas,
and C. A. Wheeler, a conciliator of the Federal Mediation and Conciliation
Service, to discuss possibilities of settling the strike. The Guild's representa-
tives were International Representative Hieken, Maxwell Pyle, who at that
time was also an international representative of the Guild, Alan Wienman,
president of the Guild's local, Walter Damtoft, secretary-treasurer of the local,
and possible other strikers. Publisher Patterson, Executive Editor Ashmore,
Frank Duff, assistant to the publisher, and Edward Wright, counsel for the
Respondent, represented the Respondent in the conference.
In the main, the testimony of the witnesses in respect to this conference is
mutually reconcilable, although there is some conflict as to the details. The
undersigned finds that the following occurred at the conference :
During the afternoon session, a tentative discussion was held among the
parties in respect to the dismissal clause, which had been the principal area of
disagreement in the negotiations between the Guild and the Respondent for a
contract in the editorial unit and had led to the strike. The Respondent stated
that it was considering a proposal on the dismissal issue which it wished to
submit to the Guild for consideration after the Respondent had obtained the
approval of J. N. Heiskell, editor of the Respondent ; the Respondent's repre-
sentatives requested a recess until that evening.
When the conference resumed on the evening of December 23, Publisher Pat-
terson read the Respondent's proposal to the following effect, that the Respond-
ent retained the prerogative to determine the size of the editorial staff and to
effect dismissal of employees for misconduct or incompetency, but the Respond-
ent agreed that in the event a dispute arose between the Guild and the Respondent
over any dismissal, the matter should be submitted to arbitration. The
T+ The Teceaa Company, 93 NLRB 1358.
1 See also, Celanese Corporation of America, 95 NLRB 664; Union Bus Terminal of
Dallas, Inc., 97 NLRB 206.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also proposed that the editorial employees should return to work
immediately and negotiations on the editorial contract should resume the first
of the year.
After considering the Respondent's proposal, the Guild submitted the follow-
ing counterproposal : The Guild would agree to accept the Respondent's proposal
on the dismissal clause provided ( 1) the Respondent would reinstate all
strikers , circulation as well as editorial employees , without discrimination or
reprisals for their union or strike activity, (2) the Respondent would recognize
the Guild as the statutory representative of the circulation employees, either
as part of the editorial unit 7B or in a unit separate from the editorial unit,e0
and (3) contract negotiations should be resumed immediately and a contract
applying to both editorial and circulation employees should be agreed upon
prior to the resumption of work by the strikers.
The Respondent rejected the counterproposal of the Guild and declined to
reinstate the circulation department employees for the reasons that (1) some
had been permanently replaced ,8' (2) some had committed illegal acts making
them ineligible for reemployment, (3) the circulation employees "were striking
illegally and unlawfully; they had no right to strike," sz and (4) the Guild had
not been certified as the statutory representative of the circulation employees .s
Hieken stated, "If you mean that you want us to sell out one-third of our
membership as a condition of settling this strike, we'll strike until next Christ-
mas, if necessary." Wienman expostulated, according to Pyle, "If you were
asking us to do the impossible, or the absolutely impossible, we might try to
meet your demands, but you are asking us to do the hopelessly impossible."
The Respondent remained adamant in its refusal to reinstate the circulation
employees. Wienman suggested that the Respondent and the Guild agree to
a consent election in the circulation department unit, defining the appropriate
unit then and there. The Respondent declined the suggestion, reiterating the
reasons previously given in refusing to reinstate the circulation strikers and
stating that it would not "be clubbed into submission on an issue that we had
disagreed with and had proposed orderly settlement of."
79 Wienman , Ashmore, and Duff so testified and their testimony to some extent was
supported by documentary evidence.
80 Pyle and Hieken testified that the Guild 's request was for recognition as the statutory
representative of the circulation employees and Pyle specifically denied that the Guild
requested the Respondent to recognize the Guild as the statutory representative of the
circulation employees as part of the editorial employee unit. Patterson 's testimony was
consonant with that of Pyle and Hieken on this issue For the purpose of this Report, it
is unnecessary to resolve the conflict in the testimony of these witnesses . However, the
undersigned is of the opinion that the probabilities of the situation support the testimony
of Pyle and Hieken and that the statements in negotiation bulletins and other publications
of the Guild to the contrary were the result of a reportable error or misinterpretation of
the statements made at the meeting on December 23, 1949
81 This finding is based upon the testimony of Wienman , Ashmore , Duff, and Patterson
and upon documentary evidence Pyle and Hieken did not recall that the Respondent
advanced this reason for its refusal to reinstate the circulation employees. The under-
signed finds the weight of the credible evidence supports the finding in the text and con-
sequently rejects Pyle's and Hieken's testimony in this regard
81 The quotation is from Pyle's undenied testimony, which was corroborated by the testi-
mony of Hieken and Wienman . The third ground for the Respondent ' s refusal to reinstate
the circulation employees is apparently an elaboration of the fourth reason.
89 This finding is based upon the testimony of Wienman , Ashmore , Duff, and Patterson.
Pyle and Hieken did not recall that the Respondent advanced this reason for its refusal
to reinstate the circulation employees The undersigned finds that the weight of the
credible evidence supports the finding in the text and consequently rejects Pyle's and
Hieken's testimony in this regard.
GAZETTE PUBLISHING COMPANY 1737
According to the testimony of Pyle, the session ended as follows :
At the evening session we had some discussion of an armed truce, brought
about by, I presume the Christmas holidays, the fact that we were in the
Christmas holidays, and the fact that I made the proposal that ....neither
side make a statement publicly ; let the publicity come from the Concilia-
tors ; Mr. Patterson proposed that the Guild cease picketing the Gazette
plant during the Christmas holidays, and my answer to that, as I remember
it, was, "We'll pull off our pickets if you will cease publishing." That sug-
gestion came in the discussion near the close of the conference. Before we
adjourned, I asked Mr. Patterson something to this effect : "I will ask man-
agement once more, if in the light of the Christmas holidays, and in the
light of the Christmas spirit, if you will take back your striking employees,
all your striking employees." Mr. Patterson's answer to that, as I remem-
ber it at this time, was : "I'm sorry, but it is impossible. We can't do it."
Before we left the hall . . . I asked Mr. Patterson to take back that propo-
sition for returning the strikers . . . without discrimination, without re-
prisals, . . . to Mr. Heiskell over the week end and give it some study, and
I expressed the hope that at our next session management would see fit to
change its position. Mr. Patterson, as I recall it, expressed a similar hope
that the Guild would change its position. There was some further dis-
cussion about the Christmas activities."
However, Pyle admitted that at the meeting on December 23 or any other
which he attended, neither he nor any other representative of the Guild stated
that the Guild was withdrawing the conditions contained in its counterproposal
submitted on December 23.
Duff and Ashmore testified that they did not hear Pyle make the above-related
request of Patterson for the reinstatement of all strikers. Patterson denied
that at this meeting any of the Guild representatives advised him that the strike
could be settled on any basis other than a full and complete compliance with the
three conditions enumerated by the Guild ; he further denied that any offer was
made for the return of the strikers except upon compliance with such conditions.
Upon the entire record, including the undersigned's observation of the wit-
nesses, as well as the events, statements, testimony, and documentary evidence
connected with the change in his testimony made by Wienman, the first witness
for the General Counsel to testify with respect to this conference, after the dis-
covery by the General Counsel of a "strike log" issued by the Guild in 1949, the
undersigned credits the testimony of Duff, Ashmore, and Patterson as to the con-
ference on December 23, and rejects the testimony of Pyle and Hieken, who were
not particularly convincing in this portion of their testimony, to the extent that
it varied from the credited testimony.
On December 27, 1949, the same representatives of the Guild and the Re-
spondent met again in a conference with the conciliators. The parties admitted
at the conference that there was no change in their respective positions urged
at the previous conference, and the Respondent was adamant in its refusal to re-
instate the circulation employees, reiterating the reasons previously given. The
Guild questioned the Respondent's assertion that some of the circulation em-
ployees had engaged in unlawful activities in connection with the strike and
countered with charges that nonstrikers had committed unlawful acts in respect
to strikers. The Guild did not affirmatively withdraw any of the conditions
84 Hieken's testimony corroborated that of Pyle in respect to Pyle's request of Patterson.
However, Wienman's testimony, as corrected, did not support that of Pyle and Hieken on
this issue.
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enumerated by it at the previous conference for settling the strike. According
to the credible testimony of Patterson, the Guild did not propose a settlement of
the strike upon any basis other than full compliance with such conditions and
no offer was made that the strikers would return to work except upon compli-
ance with those conditions.'
In late December 1949, the five State circulation representatives who had
earlier affiliated with the Guild signed the following document and mailed copies
thereof to the Guild and the Respondent, who apparently received its copy about
December 31, 1049:
We, the undersigned, make the following statement of our own free will
and accord.
We, the road representatives of the Gazette Publishing Company, after
careful consideration, and discussion of the issues involved in the present
strike, do not feel that we properly presented our cause, because we feel that
we should have waited for a vote to be taken and recognition by the em-
ployer granted before strike action was taken on the part of the circulation
employees ; also, we do not approve the strike methods used in an effort to
secure that which we all wanted.
Therefore, it has been resolved by those of us whose signatures appear be-
low to sever any further relations with the Arkansas Newspaper Guild 89
In late December 1949 or early January 1950, Executive Editor Ashmore and
Damtoft, an editorial striker, conferred at Ashmore's request, admittedly as
individuals and not as official representatives of either the Respondent or Guild,
to discuss the strike situation and ascertain whether they could discover any
basis for settlement which they in turn might bring to the attention of the
Guild and Respondent. Ashmore suggested as a possible basis for settlement,
if it met with the approval of the Guild, that the editorial strikers should return
to work and leave the problems involving the circulation employees for the
Board or an arbitrator to determine. Damtoft suggested that Ashmore speak to
Wienman about the matter 8°
Accordingly, shortly thereafter Ashmore conferred with Wienman in similar
fashion. They discussed the question of settling the issues concerning the cir-
culation strikers through the Board and through arbitration. Wienman agreed
to "sound out" the Guild on the possibility of arbitrating the matter of rein-
statement of circulation strikers and a few days later informed Ashmore that
the membership was opposed to the suggestion88
85 The findings in this paragraph are based upon a synthesis of the testimony of the
various witnesses For the reasons previously stated, the testimony of Pyle and Hieken
is rejected when at variance with the testimony of Patterson, Duff, and Ashmore or with
the findings made in respect to the prior conference.
86 It would appear that , prior to these resignations , the Guild ' s majority status in the
circulation department unit was dissipated on December 23, when the Respondent an-
nounced to the Guild its refusal, hereinafter found to be justifiable and lawful, to reinstate
the district managers who had engaged in unlawful activities before the strike
87 The findings in this paragraph are based upon the mutually reconcilable testimony of
Ashmore and Damtoft. The latter attributed the following statement to Ashmore : "There's
some question now as to whether we'll even take all editorial people back . I don't think
Mr. Heiskell would stand for Spider Rowland coming back." Ashmore denied that he
stated that Heiskell had indicated opposition to the reinstatement of Rowland. Upon
the entire record , including the observations previously made as to Ashmore who appeared
to he a more reliable witness than Damtoft, the undersigned does not credit this portion
of Damtoft's testimony.
88 The findings in this paragraph are a summary of the mutually reconcilable testimony
of Ashmore and Wienman . For the reasons set forth in the first paragraph in section B of
the text , supra, it is not found that Ashmore 's conferring with Wienman and Damtoft
was violative of the Act.
GAZETTE PUBLISHING COMPANY 1739
Meanwhile, the Respondent had been permanently replacing the striking cir-
culation employees , as the following table shows:
Striker Permanently replaced
Circulation Clerk Cowan-------------------------------- 12/19 or 21/4989
Street Sales Manager Ferguson-------------------------------- 12/20/49
District Manager Tullos_______________________________________ 12/21/49
District Manager Croft________________________________________ 12/26/49
District Manager Ford________________________________________ 12/26/49
District Manager Roetzel______________________________________ 12/26/49
District Manager Bradshaw____________________________________ 12/27/49
Circulation Clerk Place________________________________________ 12/29/49
District Manager Taliaferro___________________________________ 12/30/49
District Manager Rosamond___________________________________ 12/31/49
The next conference between the representatives of the Respondent and the
Guild was held on January 23, 1950.00 Among the Guild's representatives was
Sam B. Eubanks, executive vice president of the Guild. After reviewing the
course of events to familiarize Eubanks with the situation, Eubanks inquired
as to the reasons for the Respondent's refusal to reinstate the circulation em-
ployees. Patterson replied that they had been permanently replaced and that
some had engaged in unlawful acts which precluded their reinstatement. Fol-
lowing a discussion of the fraudulent acts attributed to the district managers
by Patterson, Eubanks requested Patterson to meet that evening with the dis-
trict managers and personally "make a statement to them to the effect that"
Patterson had made to Eubanks.
That evening Patterson read the following statement to the assembled striking
district managers :
Mr. Eubanks has asked me to state directly to you the management's
position in regard to you. There are two primary considerations : First, the
legal aspect of your position. The facts as we understand them are these;
the Guild had petitioned the NLRB for recognition of a collective bargaining
unit in the circulation department That petition had not been acted on at
the time of the strike of the editorial employees for whom the Guild had
been determined through an election as their certified collective bargaining
agent.
The Guild has never been certified as bargaining agent for the circulation
department employees, and is not now recognized as such. Therefore, your
status was different from that of the editorial department employees.
Your actions in failing to cover your jobs in our opinion constituted the
abandonment of your positions. Moreover, we feel that the actions of the
district managers and the street sales manager in the interval between the
beginning of the strike of the editorial department employees on Saturday
and your failure to report for work on Monday, made your reinstatement a
practical impossibility.
I don't believe that I need to call to your attention in detail the conversa-
tions I had with each of you district managers on Sunday morning (December
61 The Respondent ' s employment records show that Mildred Nichols assumed the job of
Cowan on December 19 1949 Nichols testified that she commenced to work in the circu-
lation office on that date and was told by Nicholson on December 20 or 21, 1949, that she
was a permanent replacement for Cowan
iD° In the interest of brevity , a conference between Guild representatives and Heiskell,
held earlier on January 2J, has not been detailed since the discussion therein lends little
to the resolution of the issues of the case.
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18th ) or the representations you made to me at that time. I told you then
of the reports we had had on your activities designed to disrupt our distribu-
tion. I told you I would check on them, and I have done so.
On February 8, 1950, representatives of the Respondent met with Wienman and
Leuchter , general counsel of the Guild , to discuss matters concerning a representa-
tion hearing scheduled within a few days upon the petition filed by the Guild for
the circulation employees in Case No . 32-RC-191. The Respondent set forth its
position in respect to the district managers and the reasons they relied upon for
their exclusion from the unit of circulation employees , and the parties discussed
the status of the newspaper carriers . The conference ended , according to the
credible testimony of Robert Lindsay, who was counsel for the Respondent and
participated in the conference and whose testimony was corroborated by that of
Patterson and Ashmore :
The Gazette did not agree to consent to having a unit defined including the
district managers and Mr. Leuchter said, in absence of any agreement, he
would have no alternative but to file the unfair labor practice charges which
he was in the process of preparing and . . . Mr. Patterson said well, that
is their business, of course ; that that had been suggested several times as a
possible solution to settling the circulation department issues by letting the
NLRB determine the question and that lie had been trying for some time to
get a determination in insisting that the Board determine those issues and
would sort of welcome the determination.
On February 20, 1950, the Guild sent the following letter to the Respondent-
The Guild is of the opinion that the negotiations of December 23, 1949,
constituted a demand for reinstatement , without condition , on behalf of
the striking employees of your circulation department . But so that there
can be no doubt about it, you are now advised that each striking employee
of the circulation department now demands reinstatement , and without
conditions attached thereto.
With regard to striking editorial department employees , the Guild is
of the opinion that the negotiations of December 23, 1949, resulted in
agreement in regard to the job security issue for the editorial contract,
by acceptance of your offer , and consequent request for reinstatement for
editorial employees , conditioned only on reinstatement of the circulation
department strikers . Again so that there can be no doubt about it, the
editorial department strikers demand reinstatement , conditioned only on
reinstatement of the circulation department strikers.
At any time that you may be ready to offer reinstatement , the strikers
request that such offer be communicated to them through the Guild.
On February 21, 1950, the Guild filed its original charges in the instant pro-
ceeding, alleging that the Respondent had engaged in unfair labor practices
in respect to the circulation employees within the meaning of Section 8 (a)
(1), (3), and ( 5) of the Act . As mentioned previously , these charges were
served on the Respondent on February 25, 1950.
On February 24, 1950, the Respondent replied to the above letter of the Guild
in the following fashion :
We have your letter of February 20.
At the December 23, 1949, meeting no unconditional offer to return to
work was made in behalf of the former employees of the circulation de-
partment . An offer was made conditioned that the Gazette agree to a
GAZETTE PUBLISHING COMPANY 1741
consent election and further agree that the district managers were prop-
erly within the claimed unit and entitled to vote in such election.
At that time the jobs of the former circulation employees had been filled
and at this time they are all being held by permanent replacements.
The offer of the striking editorial department employees to return to
work was conditioned upon the reinstatement of the former circulation
department employees under the terms outlined above.
At this time some permanent replacements have been made in the editorial
department and some of the jobs are no longer in existence.
On February 24, 1950, representatives of the Guild and the Respondent again
met in an attempt to reach a settlement of the strike. In the main, their
respective positions were unchanged. The Guild still insisted that the rein
statement of all strikers, circulation as well as editorial, was the basic issue.
The Respondent remained adamant in its refusal to reinstate the circulation
strikers for reasons theretofore expressed, including the fact that all had been
permanently replaced, and the Guild again stated that it could not abandon
the circulation strikers The Respondent suggested that a separation of the
issues, those of the editorial strikers from those of the circulation strikers,
might lead to a settlement of the strike. That is, the Respondent suggested
that the parties leave the resolution of the Guild's representation status in
the circulation department unit and the issue of reinstatement of circulation
strikers to the Board for determination and that the parties negotiate with
respect to the issues involving the editorial department unit, including the
reinstatement of editorial strikers. The meeting ended with the parties agree-
ing to meet the following week "
Pursuant to the above understanding, the representatives of the Guild and
the Respondent resumed their discussions on March 3, 1950. At the outset of
the conference, it is clear that the position of the parties was still the same,
the Guild urging reinstatement of all strikers and the Respondent refusing to
accede to such request in respect to the circulation strikers.
In accordance with the contents of a memorandum prepared by one of the
Guild's representatives as to the sequence of events at this conference, used
by witnesses to refresh their recollection, Wienman and Pyle testified that
when the Guild asked for a proposal from the Respondent for settlement of the
strike to be submitted to the Guild membership, the Respondent stated that
before the Respondent would submit a proposal with respect to the editorial
strikers , the Guild would have to agree to abandon its claims to the circulation
department employees, including representation and recognition. To some
extent their testimony was supported by the following letter to the Respondent
from the Guild:
At the instruction of the membership, I am writing to tell you that the
Arkansas Gazette unit of the Arkansas Newspaper Guild, Local 209, ANG-
CIO, in meeting March 3 unanimously rejected management's proposal
that the Guild "abandon any claim to the circulation department" as a
condition of settling the strike.
Ashmore, Patterson, and Wright, who were witnesses for the Respondent,
denied the correctness of the memorandum in question and specifically denied
P' The findings as to this conference are based upon the mutually reconcilable testimony
of the various witnesses . For reasons previously stated, the undersigned does not credit
Hieken's denial that Patterson stated at this meeting that circulation employees had been
replaced . Hieken 's testimony in this regard was in conflict with that of Pyle , Ashmore,
and Patterson.
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony of Wienman and Pyle in regard thereto. According to the Re-
spondent's witnesses, the Respondent reiterated its position previously taken
that "there were established legal methods to determine what, if any status
Guild had in our circulation department," that there should be a separation of
the issues, editorial from circulation, and that "we couldn't discuss the circula-
tion department issues as a part of any contract agreement or arrangement to
end the strike, but that would have to be handled separately." Upon the entire
record and his observation of the witnesses, the undersigned credits the testi-
mony of Ashmore, Patterson, and Wright and rejects that of Wienman and
Pyle, except to the extent it was in accord with the credited testimony. As
previously noted, Patterson and Ashmore appeared to be reliable witnesses and
Wright, who was counsel for the Respondent, was so sincere and impressive as
a witness that the undersigned has complete confidence in the integrity of
Wright's testimony."` As in the case of the documents relating to the meeting of
December 23, discussed above, the undersigned is of the opinion that the docu-
ments relied upon by Wienman and Pyle in respect to the conference on March 3,
did not correctly set forth the Respondent's position, probably being a mis-
interpretation or a too succinct abbreviation of the remarks.
At the request of W. A. Copeland, a regional director for the CIO and repre-
sentative of the Guild, Publisher Patterson, Executive Editor Ashmore, and
Edward Wright, counsel for the Respondent, conferred with Copeland on May 6,
1050, in respect to the strike situation. The credible testimony of Wright, as
corroborated by that of Patterson and Ashmore, shows that the following
occurred at this conference:
We met at 2:00 o'clock in Mr. Patterson's office. Mr. Ashmore and Mr.
Patterson were there when I arrived a few minutes after Mr. Copeland
arrived. I had never met him. He laughingly said he had no objection to a
lawyer but this wasn't the kind of a meeting that required the presence of a
lawyer because this was purely informal. He said that he had been out
of touch with the situation for sometime and that he was in the role of an
ambassador without portfolio ; he had no commission ; he had nothing to
propose ; but he was wondering if while here in connection with other
matters he might be of some useful service in bringing together the two
groups.
There was a thorough congenial, cordial, friendly atmosphere throughout.
Early in the meeting, and I would not undertake to say just when, Mr.
Copeland asked if there was any way of getting this thing settled and Mr.
Patterson smiled and banteringly said, yes, he thought that if the union
packed up and went home and never came back, that would be one fine way,
whereupon everybody laughed. I can speak for myself only, but all that I
can say is that it impressed me as being banteringly and jokingly made.
I received it as such and I thought that everybody else there did. Mr.
Copeland replied in substance, yes, that would be one way of disposing of
the problem.
There followed a discussion. Mr. Copeland said he did not know what
the impasse was between the company and the union, but that he would be
very glad to be brought up to date and was. I suppose I'd say this discussion
92 In resolving the conflicts in testimony as to conferences attended by Wright, the under-
signed has considered the stipulation of counsel that had Wright been interrogated as to
the meetings of December 23 and 27, 1949, and February 24, May 31, and June 5, 1950, his
testimony would be in accord with that of Ashmore and Patterson.
GAZETTE PUBLISHING COMPANY 1743
on this subject of the possibility of getting together took place for thirty
minutes possibly forty. All I know is my notes show that the meeting
lasted an hour and forty minutes all told. He asked Mr. Patterson if Mr.
Patterson had any proposals to make and Mr. Patterson asked if he had.
Mr. Copeland explained that he really was doing this on his own without
the knowledge of the union.
After some thirty to forty minutes of that type of discussion, the meeting
went into a friendly discourse on purely personal matters and Mr. Copeland
explained that he was with the Political Action Committee. He talked at
length to Mr. Ashmore about political matters and that the governor, about
the Gazette's fine, fair and liberal attitude heretofore on labor subjects.
Q. Do you recall whether or not during that meeting Mr. Patterson
made any statement to the effect that one of the difficulties was the insistence
of the Guild that all the strikers return to work and whether or not he gave
the information as to whether all or most of the strikers had by that time
been replaced?
A. Mr. Davis, I recall that Mr. Copeland said he recognized as a very
practical problem the difficulty or impossibility of all coming back, partic-
ularly when there had been permanent replacements for practically all, if not
all, of the jobs at that time. Yes, he thoroughly recognized the difficulty in
that respectB'
The next meeting of the Guild and the Respondent was held on May 31, 1950,
with little if any change in their respective positions theretofore advanced at
earlier conferences. Following a discussion of those positions, reference to the
fact that all circulation strikers and some editorial strikers had been replaced,
and speculation that probably not all strikers would desire reinstatement, the
meeting adjourned until June 5, 1950, at which time it was suggested that both
the Respondent and the Guild submit proposals in an effort to reach a settlement.
93 As mentioned in the text, Wright's testimony was corroborated by that of Patterson
and Ashmore The latter testified that Copeland was informed as to the progress of nego-
tiations, the then current issues, and the difficulty arising from the fact that many of the
strikers had been replaced and that the Guild was insisting upon the reinstatement of all
strikers as a condition for any type of settlement. They denied that Copeland made any
proposals in regard to settling the strike They testified further that Patterson's remark
that the strike might be settled if the Guild left Little Rock was made in jest and accepted
as such On the other hand, Copeland denied that Patterson informed him that the posi-
tion of the Guild was that all strikers should be reinstated and testified that he made
several proposals for the settlement of the strike as follows :
The first . . . was to arbitrate the whole issue, that was rejected. I think Mr
Patterson told me at that time that maybe some of the strikers there that he Nsouldn't
want to take back under any circumstances because of events which happened since
the strike So I advanced the proposal that we try to work out some method of
taking a certain number of the strikers back , and then arbitrate the differences over
the remainder . That suggestion was rejected I made three or four suggestions, and
I don't recall all of them. They all were rejected Finally, I told Mr Patterson, and
this is almost an exact quote , I said : "Mr Patterson , I've exhausted all my sugges-
tions in an attempt to settle the strike , but I will make one more : You make to me the
suggestion that I can make to you which will form the basis for discussion so we can
settle " Mr Patterson's answer was that : "I can make only one proposal." Of course,
I asked what it was. He said, "Take your Guild out of Little Rock, and we can settle
the strike " I said, "On that basis, I'm afraid we can't settle " The meeting ended.
Upon the entire record , including the undersigned 's observation of the witnesses and
the evaluations heretofore made as to the reliability of Wright as a witness, the undersigned
credits the testimony of Wright, Patterson, and Ashmore as to their conversation with
Copeland and rejects the testimony of the latter to the extent that it was at variance with
the credited testimony.
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset of the conference on June 5, 1950, the Guild submitted the
following proposal "as a basis for settling the strike" :
The Gazette to offer reinstatement to all Guild members on strike. In
return, the Guild to call off the strike. Thereafter, if the Gazette manage-
ment has good and sufficient reason for desiring to sever the employment of
any striking personnel, the question of such severance to be submitted to
arbitration binding on both parties prior to any contemplated severance.
The Respondent, after discussing the Guild's proposal, offered the following
counterproposal:
The Gazette will reinstate all Guild editorial department striking em-
ployees whose positions have not been permanently filled. The Gazette will
receive applications for reinstatement of all other editorial department
striking employees to be given priority in event of vacancies.
The Guild stated that its proposal envisioned the reinstatement of all strikers,
circulation as well as editorial, and the Respondent explained that its offer did
not extend to the circulation strikers. The Respondent stated that 19 positions
formerly occupied by the striking editorial strikers had been permanently filled
and that at that time, there were 2 vacancies in the editorial staff. The meeting
adjourned subject to call.
At the request of the Guild, representatives of the Guild and the Respondent
met again on August 12, 1950. At this meeting the Guild stated that it was
acceding to the Respondent's previous requests for a separation of the issues,
editorial apart from circulation, and proposed "to negotiate an agreement to
end the strike which will bind the Guild and the Gazette with reference to the
editorial department . . . to deal with you for the editorial department in terms
of settlement of the strike and a contract to cover the editorial department."
Later in the discussion, the Guild requested the Respondent to reinstate the edi-
torial strikers. Patterson replied that there were no vacancies in the editorial
department; all had been filled or committed, explaining that one vacancy was
not filled but had been "committed." When pressed to name the latter individual,
Patterson declined. The payroll records of the Respondent show that the next
addition to the editorial department following the conference on August 12, 1950,
was Jerry S. Neil, one of the editorial strikers, who returned to work on August
17, 1950. For the purpose of discussion , it will be assumed that Neil was the
employee to whom a commitment had been made for employment 94
The record, considered as a whole, supports the position taken by Patterson
at the meeting on August 12, that the editorial strikers had been permanently
replaced and that there were no vacancies available for the editorial strikers.
On December 17, 1949, 23 editorial employees launched the strike. Photographer
Harry Obsitnik abandoned the strike and returned to work on January 7, 1950,
and prior to August 12, 1950, under the hypothesis above stated, the Respondent
had arranged for the reemployment of Neil. Therefore, on August 12, 1950,
there were presumably 21 editorial strikers. The Respondent's records show
that on August 12, 1950, there were 23 permanent replacements in its editorial
staff hired since the date of the strike, not including Obsitnik or Neil.0 So far
94 Cf. The O ffice Towel Supply Company , Inc., 97 NLRB 449.
95 The findings as to the number of replacements are based upon Respondent 's Exhibits
24, 25, 26, 27, and 29. It appears that copy boys Robertson and Kane, who were listed on
Respondent 's Exhibit 25, were inadvertently omitted from Respondent ' s Exhibit 27. The
General Counsel introduced no evidence to rebut these documents or to show that any
vacancies existed in the editorial department on August 12.
GAZETTE PUBLISHING COMPANY 1745
as one may determine from the records in evidence , it appears that the positions
of the 21 strikers were held by permanent replacements , as the following tabu-
lation shows :
Strikers
1 State editor B0
9 reporters
1 sports reporter
1 junior sports reporter
4 copy readers
1 photographer
1 librarian
2 copy boys
1 columnist
21 editorial strikers
Replacements
1 assistant State editor
9 reporters
1 sports reporter
1 junior sports reporter
6 copy readers
1 photographer
1 librarian
2 copy boys
1 food editor B7
23 permanent replacements
The meeting on August 12, 1950, ended with the Respondent agreeing to the
Guild's request to meet again in an attempt to complete the negotiation of a col-
lective bargaining contract. The succeeding meeting between the Guild and
the Respondent held on August 25, 1950, was devoted chiefly to an exploration
of the Respondent's hiring practices, changes in working conditions and wages,
and employment of replacements since the start of the strike. Near the close
of the meeting, Hieken requested that the Respondent reinstate all editorial
employees then on strike. The Respondent refused for the reason that it had
permanently replaced the strikers. Hieken then asked, "Will you negotiate with
us for these people who are on strike. Will you negotiate with us for the purpose
of reaching an agreement and consummating a contract with the Guild for the
reinstatement of people on strike ?" The Respondent stated that it would
discuss any proposal submitted by the Guild. When Hieken repeated his request
for reinstatement of the editorial strikers, the Respondent averred that no
vacancies existed. The meeting ended with Hieken asking, "When will you
reinstate the people on strike?" Patterson replied, "The time of reinstatement
is a matter of negotiation."
On August 29, 1950, the representatives of the Guild and the Respondent
conferred again. After the Respondent supplied the Guild with some requested
information as to wage rates, the negotiations commenced and Hieken made
the following statement :
Now, in negotiating for a contract covering the Editorial Department
between the Gazette and the Guild, naturally, it will be necessary, it seems
"The status of Harry Young , who at the time of the strike was State editor , is some-
what puzzling . As State editor , he occupied a supervisory position, excluded from the
editorial unit. However , prior to the strike in December , Executive Editor Ashmore
advised Young that after Christmas he would be transferred to a new position of relief
editor and that copy reader Carroll McGaughey would assume the position of State editor.
As relief editor , Young would be a "swing editor," taking the place 2 days each week of
the State editor, news editor , and telegraph editor. All of the latter three were supervisors.
At the inception of the strike , McGaughey assumed permanently the position of State editors
and thereby Young was replaced . The rec-rd does not reveal whether the Respondent
carried out its plan of creating the new position of relief editor or whether such a position,
if created , was supervisory in nature.
91 It is possible that the food editor was not a replacement for the columnist . The record
does not disclose the duties of either , although one may infer that the food editor was a
newly created position , since the title does not appear on prestrike payroll records.
The record does not reveal whether the position held by the columnist was still In
existence.
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to me, for the Guild to be in such a position as to be able to carry out its
part of the contract ; and, if we weren't negotiating on that basis where
each side expected, when they reached a contract, to carry out its terms,
naturally, you wouldn't consider that negotiating in good faith. So, ob-
viously, as we see it, it would be necessary for both the Management and the
Guild to be in such a position that they could carry out the terms of their
contract which they arrived upon. In order to carry out our part of the
contract, as we see it, it will be necessary for us to be in that position of
being and continuing as the bargaining agent of the Editorial Department.
Now, it seems to me the first thing we should try to settle, if possible, is the
matter of re-instating our members, or is it, to their jobs in the Editorial
Department.
Following discussion as to the strikers' status, Hieken made the following
proposal for the reinstatement of the editorial strikers:
All right, we suggest to you that you offer to the employees on strike
thiough their collective bargaining agency reinstatement to their jobs, that
you notify each individual by registered letter of such offer with a date
to be set giving them a reasonable time to return and come back to work.
We can agree on a certain (late, if necessary, by which we will return or be
considered as not desiring to return. That would be step No. 1. Does
that sound satisfactory?
Among other matters discussed, the representatives mentioned the fact that
some editorial strikers had left Little Rock and speculated as to whether all
editorial strikers would desire reinstatement. The Guild was of the opinion
that all would desire to return to the Respondent's employ. In respect to the
replacements hired, Hieken suggested that "if the Management wants to keep
the people that it has hired during the time of the strike, there is no problem,
why it can keep them, and there is no reason why it can't expand the size of
the force to double the amount of what it was on the day of the strike, if
there is no problem there. If there is, then, of course, we will have to settle
the question in negotiating."
The meeting concluded with the Respondent stating that it would consider
the Guild's proposals and give its answer at the next meeting which was
scheduled for September 2, 1950.
At the outset of that meeting, the Respondent presented the following proposal
for the reinstatement of the editorial strikers :
The company agrees that for a period of six months from the date of the
signing of the collective agreement and whenever a new employee is hired
in the Editorial Department to consider first applications for re-employment
filed individually with the company by former employees of the Editorial
Department who were replaced while on strike. Other applications will be
considered only in the event that the company fails to find among such ap-
plicants seeking reemployment a person, who, in the company's opinion,
would be a satisfactory employee for the job to be filled.
The Respondent further explained that it could not accept the Guild's proposal
for the reinstatement of all editorial strikers because it would result in too large
a staff in view of the fact that the strikers had been permanently replaced.
The Guild suggested that all editorial strikers be reinstated and if such rein-
statement resulted in too large a work force, that the staff be reduced to the
size necessary on the basis of seniority. The Guild indicated that it could not
agree to the Respondent's proposal, saying, inter alga,
GAZETTE PUBLISHING COMPANY 1747
We have said to you, Mr. Houston, that we wanted all the strikers to
go back to work, but we didn't say one in October, one in November, two in
January and three in February and eleven next June. That wasn't our
proposal at all, I mean this stretch out, accordion effect there.
Later the following interchange occurred, according to the stenographic report
of the conference:
Mr. HIEKEN 88 All right, but you are not willing to let the strikers come
to work, are you?
Mr. ASHMORE. Perfectly willing, if we have vacancies for them. It is
a matter of record throughout all these negotiations. We have even made
several attempts to get them back.
Mr. PATTERSON. Well, I think the answer to that question is that the
strikers were given the opportunity at the time there were vacancies.
Mr. HIEXEN. But you are not giving them the opportunity now, are you?
Mr. PATTERSON. We haven't the opportunity to offer it now.
Mr. HOUSTON." We are giving them the opportunity to be considered for
these vacancies which occur.
Mr. YOUNa'00 As individuals.
Mr. HOUSTON. We are bargaining with their representative, and certainly
it isn't as individuals.
Mr. PATTERSON. The vacancies occur individually. They don't occur in
groups other than in another abnormal situation such as the Guild posed
for us when you went on strike.
Mr. HIEiEN. Mr. Patterson, when the people went out on strike, they
went out on strike all together in the Editorial Department. We are asking
that they be re-instated all together.
Mr. HOUSTON. Mr. Hieken-
Dir. PATTERSON. We understand what you are asking perfectly.
Mr. HIEKEN. Now, then you say if you do that, you say you are not
going to discriminate against people on the basis of whether they went out
on strike or not, but the only thing that is worrying you is that if you put
them all back you have a work force larger than you desire.
Mr. PATTERSON. I think we are saying that vacancies occur individually
and not as-because when we fill a vacancy, we seek a man qualified to fill
that vacancy. I don't think that our approach to it would be any different
now than it would be at any other time. If we filled positions formerly
occupied by people on strike, they were filled as individual jobs requiring
certain abilities.
Mr. HIEKEN. Will you go over that again?
Mr. PATTERSON. Well, to contrast what you are saying or to consider what
you are saying, we had no opportunity or ability or desire to hire a group of
people, and we filled positions individually as they existed and as they were
left vacant by people who went on strike.
Mr. HIEKEN. Well, now, we have goc to consider that people going out
on strike they don't consider that they are abandoning their jobs. They
are out on strike in protest against certain things that they feel the Manage-
ment has done or refuses to do. Now, in negotiating to solve the problem
created by a strike and the things that led up to the strike, we have got to
08 In quoting these excerpts from the transcript of this session, the misspelling of Hieken's
name has been corrected.
°D Gaines Houston , labor consultant for the Respondent.
300 Harry Young, the editorial striker referred to in footnote 96, supra.
242305-53-111
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider that these people have a right to come back to their jobs. We
can't just say now because they have struck we are not going to give them any
consideration. We can't just turn our backs on them.
Mr. PATTERSON. Nor have we said that.
Mr. HIEKEN. An employer can't turn his back on people who have gone
out on strike.
Mr. PATTERSON. Nor have we said that at any time.
Mr. HIEKEN. He can't refuse to re-instate them because they went out on
strike.
Mr. AsaMORE. Oh, no.
Mr. PATTERSON. No, we understand that perfectly.
Mr. HIEKEN. And we are asking you to sit down with us and negotiate for
the re-instatement of these people, and you are saying to us that if you do
that it will create a problem about the size of your work force, and we are
saying that that problem can be solved in an orderly and fair manner to all
employees on the basis of seniority, and you don't want to consider that.
Mr. HouSTON. Well, I think we have and want to consider everything.
Now, you told me when employees go out on strike, of course, they are still
employees and-but there is always that fact that one day if the business
continues operating those jobs are going to be filled .... The problem is
that the jobs have been filled. Now, the Management comes to you with the
proposal made to you today and says that it will give preferential considera-
tion under certain conditions and for a certain period of time to those
people who apply individually to the company and who have been out on
strike whenever a vacancy in the job occurs.
The meeting closed with the Guild's advancement of the following proposal,
which the Respondent agreed to consider before the next conference:
It is agreed between the Gazette Publishing Company and the American
Newspaper Guild, as follows :
1. All employees will be laid off in the Editorial Department on
____________________ date to be decided.
2. All employees will be given an opportunity to apply for re-instatement
in the Editorial Department within ------------ days prior to such a date
of layoff.
3. The Gazette Publishing Company will re-instate employees to such jobs
in the Editorial Department as are thus open on the basis of seniority of
hire, the first hired by the company in the past to be the first re-instated.
When negotiations resumed on September 7, 1950, the Respondent stated "that
at this time we don't see any way that we can meet or move toward meeting that
suggestion" of the Guild made at the close of the preceding conference but sug-
gested that the parties might be able to compromise their differences on the ques-
tion of reinstatement of editorial strikers if the remaining contractual issues were
agreed upon. Most of the meeting was concerned with a discussion of the pre-
strike contract negotiations to determine which issues were unsettled. The fol-
lowing session held on September 13, 1950, was devoted largely to discussion on
provisions of the contract, with the Guild urging reinstatement of all editorial
strikers and agreement on a collective bargaining contract. The last two confer-
ences held on September 15 and 21, 1950, revolved chiefly around negotiations of
contract provisions until the last conference was terminated by the Respondent's
questioning the Guild's majority status in the editorial department and stating
that the Respondent intended to file a 9 (c) petition and would withdraw from
negotiations with the Guild pending the resolution of the representation issue.
GAZETTE PUBLISHING COMPANY
2. Conclusions as to the alleged 8 (a) (3) violations
1749
Upon the entire record and the foregoing findings of fact, the undersigned con-
cludes that the strike of the editorial employees was economic in nature, as was
the strike of the circulation employees, and that neither strike was caused or pro-
longed by any unfair labor practices on the part of the Respondent. The prin-
ciples governing the replacement of economic strikers and their reinstatment upon
unconditional application are well established. In brief, an employer in an eco-
nomic strike may permanently replace economic strikers with new employees at
any time prior to their unconditional application for reinstatement and is under no
obligation to discharge the replacements in order to create jobs for the eco-
nomic strikers upon their election to return to work. The initial question to be
determined from the foregoing findings of fact is the date the Guild made an
unconditional request for reinstatement of the strikers.
The initial request for reinstatement made on December 23, 1949, was patently
conditional upon the Respondent's recognition of the Guild as the statutory rep-
resentative of the circulation employees and upon the negotiation and execu-
tion of a contract covering both the editorial and circulation employees. Since
these conditions were never withdrawn by the Guild at that meeting or those
immediately following, it is found that the first request by the Guild for the re-
instatement of all strikers without the aforesaid conditions was made in its let-
ter of February 20, 1950. Therein the Guild requested the reinstatement of the
circulation employees "without condition attached thereto" and also of the edi-
torial strikers "conditioned only on reinstatement of the circulation department
strikers." The Guild's position as revealed by this letter and succeeding con-
ferences was that all the strikers, editorial and circulation, should be reinstated
by the Respondent or none would return to work.
The Respondent replied that the circulation employees had been permanently
replaced, as had some of the editorial strikers, and that some positions in the
editorial department were no longer in existence. At previous and succeeding
conferences, the Respondent had taken the position, that because of their acts of
fraud prior to the strike, the district managers had engaged in activities not pro-
tected by the Act, thus obliterating any duty on the part of the Respondent to
reinstate them.101 Since the circulation strikers had all been permanently re-
placed and since the district managers had engaged in acts unprotected by the
Act, the undersigned concludes that the Respondent was under no obligation to
grant the Guild's request for reinstatement of the economic circulation strikers.
Inasmuch as the request for the return of the editorial strikers was con-
ditioned on the "reinstatement of the circulation department strikers" who by
this time had lost any claim to their former positions, it follows that the Guild's
request in the behalf of the editorial strikers was not of an unconditional
nature , being akin to those cases where the request of economic strikers for
reinstatement was coupled with a request for the reemployment of a lawfully
discharged employee and was held by the Board to be a conditional offer to
abandon strike activity and return to work 102 Accordingly, the Respondent did
not act unlawfully in rejecting the conditional offer of the Guild for the return
of the editorial strikers.
101 The undersigned cannot agree with the General Counsel's argument that the Respond-
ent's reliance upon this unprotected activity as a reason for its refusal to reinstate the
district managers was "a pretext and not for cause ." In any event , by the time the Guild
made an unconditional request for the reinstatement of all strikers , the circulation strikers
had been permanently replaced.
102 E . g. Myers Products Corporation, 84 NLRB 32.
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next issue to be determined is when, if ever, the Guild made an uncon-
ditional request for the reinstatement of the editorial strikers. The Guild
maintained its insistence upon the Respondent's agreeing to a return of "all or
none" of the strikers and did not accept the Respondent's offer made on June 5,
1950, to reinstate the editorial strikers whose positions were open and to
give priority to the remainder in the event of future vacancies. The first indi-
cation of relinquishment of the Guild's "all or none" position occurred at the
conference on August 12, 1950. There it announced a desire to complete the
negotiation of a contract for the editorial employees and requested the rein-
statement of the editorial strikers without reference to the circulation strikers.
Although it might be argued that the Guild's application for the return to work
of the editorial strikers was conditional in view of the discussion as to the con-
tinuance of contract negotiations,103 it will be assumed for the purpose of argu-
ment that the Guild's request was unconditional. However, as found above,
no vacancies existed for the editorial strikers. Therefore the Respondent's
refusal to return them to their jobs was not violative of the Act.
Subsequent to the abandonment of the Guild's "all or none" position as to
the reinstatement of the strikers on August 12, 1950, vacancies occurred in the
editorial department by the severance of the employment of 12 employees. All
replacements for these positions were new employees, except Joe Wirges, who
was an editorial striker. There was also a personnel change in the position
formerly held by Anne Cowan in the circulation department after August 12,
1950. The question remains whether the Respondent was obligated to offer
vacancies occurring in these positions to strikers after August 12, 1950. In the
absence of any evidence to show that the Respondent had an established pro-
cedure for the recall of laid-off employees on a seniority basis or otherwise and
in view of the position assumed by the Guild in the post-strike conferences,
demanding a return of all editorial strikers even though they had been re-
placed and rejecting the Respondent's proposals that the strikers be considered
for subsequent vacancies as they occurred, the undersigned concludes that a
preponderance of the evidence in the record does not establish that the
Respondent discriminatorily refused to consider strikers for vacancies which
arose in the months subsequent to August 12, 1950. In conclusion, the under-
signed finds that the Respondent has not engaged in violations of Section 8
(a) (3) of theAct104
It has been found that Supervisor Clubb's statements to employee Cowan
were violative of Section 8 (a) (1) but that the remaining allegations of the
complaint have not been sustained. The undersigned does not deem this
isolated incident sufficient to warrant the recommendation of a remedial order.
The undersigned will therefore recommend that the complaint be dismissed
in its entirety and will conclude below that none of the complaint' s allega-
tions has been sustained.
On the basis of the foregoing and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. Gazette Publishing Company is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
103 Cf V-0 Milling Company, 43 NLRB 348.
104 In view of the conclusions reached, it is unnecessary for the purpose of this Report
to consider other defenses of the Respondent to the complaint ' s allegations of violation
of Section 8 (a) (3) of the Act.
INDIVIDUAL DRINKING CUP CO., INC. 1751
2. American Newspaper Guild, C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
3. Gazette Publishing Company has not engaged in unfair labor practices as
alleged in the complaint within the meaning of Section 8 (a) (1), (3), and (5)
of the Act.
[Recommendations omitted from publication in this volume.]
INDIVIDUAL. DRINKING CUP CO., INC.' and UNITED PAPERWORKERS OF
AMERICA, CIO, PETITIONER. Case No. P21-RC-2780. December 31,
195°3
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Martin Zimring, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a unit of production and maintenance em-
ployees at the Employer's plant in Anaheim, California. The Em-
ployer and the Intervenor, Printing Specialties & Paper Products
Union No. 388, AFL, contend that no election should be directed at
this time as the Anaheim plant, which was acquired by the Employer
in March 1952, has not yet employed a representative complement of
employees.
The Employer, a wholly owned subsidiary of the Dixie Cup Com-
pany, is engaged in the manufacture of assorted paper lids and con-
tainers. At the time of the hearing, the plant was operating at 25
percent of its anticipated potential, and contained 45 percent of the
machinery which the Employer will utilize when full production is
reached. The balance of the machinery has been ordered, and delivery
is expected in about May 1953. Due to the lack of these machines,
and the necessity for training new personnel to perform the various
I The Employer's name appears as amended at the hearing.
101 NLRB No. 252,