Hearst Publications, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1939

13 N.L.R.B. 1262 (N.L.R.B. 1939)

In the Matter Of WILLIAM RANDOLPH HEARST, HEARST PUBLICATIONS,
INC., A CORPORATION , HEARST CONSOLIDATED PUBLICATIONS , INC., A
CORPORATION, HEARST CORPORATION, A CORPORATION, AMERICAN NEWS-
PAPERS, INC., A CORPORATION , AND KING FEATURES SYNDICATE, INC.,
A CORPORATION and SEATTLE NEWSPAPER GUILD, LOCAL No. 82
Case No. C-795.-Decided July 31, 1939
Newspaper Publishing Industry-Interference , Restraint , and Coercion-
Discrimination : discharge : charges of , sustained as to two employees , dismissed
as to a third , one of the former a supervisory employee-Reinstatement
Ordered-Back Pay: awarded-Joinder of Respondents : case dismissed as to
allied companies not directly involved.
Messrs. Daniel Baker and Thomas P. Graham, Jr., for the Board.
Tanner d Garvin, by Mr. Paul P. Ashley, of Seattle, Wash., for the
respondents.
Houghton, Cluck & Coughlin, by Mr. Paul Coughlin, of Seattle,
Wash., and Mr. A. J. Isserman, of Newark, N. J., for the Guild.
Vanderveer c€ Bassett, by Mr. Samuel B. Bassett, of Seattle, Wash.,
for the Drivers Union and for the Advertising Workers.
Mr. Karl P. Heideman, of Seattle, Wash., for the Fraternity and
for the individual intervenors.
Mr. Joseph A. Padzbay, of Washington, D. C., for the American
Federation of Labor.
Mr. David Rein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Seattle Newspaper Guild, Local No. 82,
herein called the Guild, the National Labor Relations Board, by
Charles W. Hope, Regional Director for the Nineteenth Region
(Seattle, Washington), issued a complaint dated February 25, 1938,
against William Randolph Hearst, Hearst Publications, Inc., a cor-
poration, Hearst Consolidated Publications, Inc., a corporation,
Hearst Corporation, a corporation, American Newspapers, Inc., a
13 N. L. R. B., No. 118.
1262
WILLIAM RANDOLPH HEARST 1263
corporation, and King Features Syndicate, Inc., a corporation,' herein
called the respondents, alleging that said respondents had engaged
in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. A copy of the complaint, accompanied by a notice of hear-
ing, was served upon each of said respondents, upon the Guild, and
at the office of the Seattle Post-Intelligencer Department of Hearst
Publications, Inc., herein called the Newspaper.2 On February 23,
1938, the Board, acting pursuant to Article III, Section 10 (c) (2),
and Article II, Section 37 (b), of National Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered that the pro-
ceeding in the present case be consolidated, for the purpose of hear-
ing, with the proceeding in Case No. R-7653 upon a petition for
investigation and certification of representatives for the employees
of the Seattle Post-Intelligencer Department of Hearst Publications,
Inc. On March 5, 1938, the Regional Director issued an order in
each of the proceedings postponing the hearing and setting a date
and place for the hearing in the two cases. A copy of such order
was duly served upon all parties.
The complaint alleged in substance that the respondents on or
about July 29, 1937, discharged Ray Griffith,4 and on or about August
2, 1937, also discharged Ruth Givan, for joining and assisting the
Guild. On or about March 3 the respondent, Hearst Publications,
Inc., herein called the Company, filed an answer to the complaint
denying that it had engaged in the unfair labor practices alleged
therein. On March 9 all of the respondents filed a joint answer to
the complaint and a motion to dismiss as to all respondents except
the Company, upon the ground that none of the persons named in the
complaint were or had been employees of said other respondents and
that at none of the times mentioned in the complaint had the relation
1 The complaint as originally issued set forth the name of the Guild as American News-
paper Guild , Seattle Chapter . The complaint was amended at the bearing to change the
designation of the Guild to Seattle Newspaper Guild, Local No. 82 . The complaint also
included International News Photos, Inc., as a party respondent . At the hearing the
complaint was amended to strike therefrom International News Photos, Inc, upon discovery
that there was no such corporation.
2 Seattle Post-Intelligencer Department , generally referred to In the record as Seattle
Post-Intelligencer, or Post-Intelligencer, Is a department of Hearst Publications , Inc., a
corporation ; at times during the proceeding reference has been made to Hearst Publica-
tions, Inc., by the name of Seattle Post-Intelhgencer, or Post-Intelligencer
8 A Decision , Certification of Representatives , and Direction of Election was issued In
this case on November 30, 1938. 9 N. L. R. B. 1262. A further Certification of Repre-
sentatives was issued on January 28, 1939 10 N. L. R. 13. 1468
4 The name as It appears in the complaint is spelled "Griffiths." The spelling through-
out the record varies, appearing sometimes as "Griffith " and sometimes as "Griffiths."
However, the name appears on the pay roll of the Company as "Griffi'th" and this spelling
will be used throughout the Decision.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employer-employee existed between the persons named in the
complaint and said other respondents.
On March 18, 1938, duly amended charges having been filed, the
complaint was amended to include an allegation of violation of the
Act through the discharge of Helen Hoover for joining and assisting
the Guild. An amended answer filed by the respondents denied this
allegation.
Pursuant to the order postponing the hearing, a hearing was held
in the consolidated proceeding from March 10 to April 1, 1938, before
Charles A. Wood, the Trial Examiner duly designated by the Board.
At the hearing motions to intervene were made respectively on be-
half of Classified and Display Advertising Writers and Workers
Union No. 20721, herein called the Advertising Workers; Stenog-
raphers, Typists, Bookkeepers and Assistants Local No. 16304;5 and
Newspaper Drivers and Helpers Local No. 763, herein called the
Drivers Union. Likewise, a motion to intervene was made jointly
on behalf of The Professional Advertising Fraternity, herein called
the Fraternity, and the following named persons : W. H. Mclnerny,
Fred Marshall, Paul J. Immel, Muriel B. Wells, I. J. Hentschell,
Carl Hege, Fred W. Strauss, Arthur Wichman, Arthur G. Lomax,
Mary Ramsey Reith, Kathleen McClure, N. T. MacNeil, J. J. Atkin-
son, John Taliaferro, Joseph B. Winston, Warren E. Crane, and Roy
Sparke, jointly referred to herein as the individual intervenors.
These motions were allowed by the Trial Examiner. The Board, the
respondents, the Guild, and all the intervenors were represented by
counsel and participated in the hearing." Full opportunity to be
heard, to examine and cross-examine witnesses and to introduce evi-
dence was afforded all parties. During the course of the hearing
a motion by Board counsel to amend the complaint to conform to the
proof in the case was granted by the Trial Examiner but limited
to minor discrepancies. This ruling is hereby affirmed. During the
course of the hearing the Trial Examiner made various other rulings
on motions and on objections to the admission of evidence. The
Board has reviewed these rulings and with the exception of such
rulings as are expressly overruled hereinbelow, they are hereby
affirmed.
On August 5, 1938, the Board, in accordance with Article II, Sec-
tion 37, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, issued an order transferring the proceeding in
5 During the course of the hearing this organization announced that it had changed
its name to Office Workers Union, Local No. 16304. This organization withdrew from the
hearing before its completion.
6 Although the intervenors appeared throughout the bearing , they participated actively
only in that portion of the hearing which was concerned with the issues upon the petition.
WILLIAM RANDOLPH HEARST 1265
this case before the Board for action pursuant to Article II, Section
38, of said Rules and Regulations. On September 15, 1938, the Board
issued an order directing the issuance of Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order in this case. On
October 18, 1938, the Board, pursuant to Article II, Section 37 (b),
and Article III, Section 10 (c), of said Rules and Regulations, issued
an order severing the two cases which had been consolidated for the
purpose of hearing.
On January 6, 1939, the Board issued and duly served on the parties
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order in the case. On January 23, 1939, the Company filed
exceptions to the Proposed Findings of Fact, Proposed Conclusions
of Law, and Proposed Order. On the same day, exceptions were
jointly filed by the Advertising Workers and the Drivers Union.
Thereafter, briefs were submitted by the Company and by the Amer-
ican Federation of Labor on behalf of the Advertising Workers and
the Drivers Union, and on April 14, 1939, oral argument was held
before the Board, at which counsel for the Company and the Guild
appeared and participated. The Board has reviewed the exceptions
and the briefs filed by the Company and the American Federation of
Labor and finds the exceptions to be without merit.
At the commencement of the hearing, the respondents, other than
the Company, renewed their motion to dismiss on the ground that
none of the individuals named in the complaint were or had been em-
ployees of said respondents, and that at none of the times mentioned in
the complaint did the relation of employer-employee exist between
these individuals and the said respondents. This motion was renewed
at other times during the hearing, but each time was denied by the
Trial Examiner. We find, however, that the individuals named in
the complaint are and have been employees only of the Company
and that none of them are or have been employees of any of the other
respondents. The motion to dismiss should have been granted by the
Trial Examiner, and we hereby overrule the ruling of the Trial Ex-
aminer, and will dismiss the complaint as to all the respondents, with
the exception of the Company.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Hearst Publications , Inc., is a California corporation with its prin-
cipal office and place of business at San Francisco , California. It is
engaged in the publication of various daily and Sunday newspapers
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in San Francisco, Oakland, and Los Angeles, California, and the
Seattle Post-Intelligencer in Seattle, Washington. In Matter of Wil-
liam Randolph Hearst, et al. and American Newspaper Guild, Seattle
Chapter,' decided by this Board on January 13, 1937, we considered
the nature of the business and operations of the Company and the
relationship that such business and operations bore to the so-called
Hearst organization." Since the Decision in that case, no change of
substance has occurred in the business or operations of the Company
as regards the publication of the Seattle Post-Intelligencer. The
record shows that the findings of fact there made in that connection
are an accurate statement of the facts as they now exist.9
At the hearing the Company by its counsel conceded that the Com-
pany is engaged in, and its operations occur in, interstate commerce
and that the employees of the Newspaper are engaged in interstate
commerce.
We find that the business and operations of the Company, and of the
Newspaper, constitute a continuous flow of trade, traffic, and com-
merce among the several States.
II. THE ORGANIZATIONS INVOLVED
Seattle Newspaper Guild, Local No. 82, is a labor organization affili-
ated with the American Newspaper Guild, which in turn is affiliated
with the Committee for Industrial Organization. Prior to the fourth
annual convention of the American Newspaper Guild held in St. Louis,
Missouri, from June 7 to 11, 1937, membership in the Seattle News-
paper Guild was limited to persons employed in Seattle in the edi-
torial department of news publications, or other agencies engaged in
the gathering and dissemination of news. However, as a result of ac-
tion taken at this convention, the jurisdiction of the affiliated chapters
or locals of the American Newspaper Guild was enlarged, and in ac-
cordance therewith the Guild now admits to membership all persons
except executives who are employed in the editorial department, classi-
fied-advertising department, display-advertising department, circula-
tion department, business office, and allied departments of the News-
paper.
Newspaper Drivers and Helpers, Local No. 763, is a labor organiza-
tion affiliated with the International Brotherhood of Teamsters,
T Case No. C-136, 2 N . L. R. B. 530.
The Hearst organization Is Nation -wide in its scope and activities , including in Its
structure all the r espondents in this case The Hearst organization is fully described In
Matter of William. Randolph Hearst, et al. and American Newspaper Guild, Seattle
Chapter, 2 N. L. R B. 530.
The business of the Company as regards the publication of the Seattle Post-Intelligences
Is described In the Decision in Case No. R-785, the proceeding upon the petition,
9 N. L. R B. 1262.
WILLIAM RANDOLPH HEARST 1267
Chauffeurs, Stablemen and Helpers of America, which, in turn, is
affiliated with the American Federation of Labor. Newspaper Driv-
ers and Helpers, Local No. 763, admits to membership employees in
the circulation department of the Newspaper excluding clerical office
employees.
Classified and Display Advertising Writers and Workers Union No.
20721' is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees in the classified- and
display-advertising departments of the Newspaper.
III. THE UNFAIR LABOR PRACTICES
A. The background
As a result of the discharge by the Company of two employees
who were members of the Guild, a strike was called by the Guild at the
plant of the Newspaper on August 13, 1936.10 At the time the strike
was called, the jurisdiction of the Guild was limited to employees in
the editorial department of the Newspaper and only these employees
were called out on strike. Nevertheless, the strike resulted in the
suspension of the publication of the paper and the closing of the plant.
However, many of the employees of the Newspaper were kept on the
pay roll. Their work during the period of the strike consisted of
activities directed toward the termination of the strike. These activi-
ties were part of a publicity campaign to bring the Newspaper's case
to the public of Seattle, and align the public on the side of the News-
paper against the Guild.
'During the course of the strike, John Boettiger was made publisher
of the paper. On November 25, 1936, he brought about the termina-
tion of the strike through an agreement of settlement and the News-
paper resumed publication shortly thereafter.-
Upon the resumption of publication, the financial condition of the
Newspaper was poor. Despite a consistent improvement, the News-
paper continued to lose money, and in July of 1937 it was determined
that it was necessary to make a considerable cut in expenses. A mem-
orandum was sent by Boettiger to all department heads asking for
1°A case involving these discharges came before this Board in Matter of William
Randolph Hearst, et al ., Case No. C-136, 2 N. L. R B. 530. We found that these em-
ployees had been discharged in violation of Section 8 (1) and (3) of the Act and ordered
their reinstatement. The Order of the Board was affirmed in National Labor Relations
Board v. Hearst, at al, 102 Fed. (2d) 658 (C. C. A. 9th, 1939).
11 The agreement provided in part that "all striking employees shall be returned to work
without discrimination or prejudice and without reduction of salaries upon resumption of
publication by the Seattle Post-Intelligencer, publication to be resumed within 96 hours
after settlement is reached and the Post-Intelligencer is removed from the 'unfair' list of
the Seattle Central Labor Council." The agreement also provided that "The cases of
Frank Lynch and Philip E. Armstrong will continue in the hands of the National Labor
Relations Board."
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their recommendations for reductions in cost, including the elimina-
tion of personnel. Instructions were given that the employees to be
dismissed were to be selected upon the basis of efficiency, seniority,
and dependents. In the course of this reorganization the Company
discharged, among others, Ruth Givan, Helen Hoover, and Ray
Griffith, who are named in the complaint as having been discrimina-
torily discharged.
B. The discharges
Ruth Givan and Helen Hoover. Since the discharges of both Ruth
Givan and Helen Hoover were on the recommendation of the same
executive of the Newspaper, Russell W. Young, the manager of the
classified-advertising department, we will consider their cases together.
Ruth Givan was employed as the supervisor of the telephone room
of the classified-advertising department. The employees in this di-
vision of the classified-advertising department are engaged in solicit-
ing, by telephone, classified advertisements to be inserted in the paper.
Mrs. Givan had been engaged in this work for the Newspaper since
some time in 1923 and became supervisor of the telephone room in
1929. She left the Newspaper in 1932 to take a position with the
Seattle Times, and returned to her former position in May 1933 at
the request of Young. She continued as supervisor of the telephone
room until her discharge on August 2, 1937.
During the strike of 1936, Mrs. Givan, while not a member of
the Guild, was openly in sympathy with the strikers. Although
Young, who was active in the campaign to win public sympathy for
the Newspaper, invited all other supervisors and many of the em-
ployees working under Mrs. Givan to work with him in this cam-
paign, he did not invite Mrs. Givan to do so. Indeed, Mrs. Givan
was the only supervisor under Young who was not engaged in these
activities during the period of the strike. Upon the resumption of
the publication of the Newspaper her Guild sympathies continued
openly. About April or May 1937, the Guild commenced to organize
affiliate organizations in the other departments of the Newspaper.
Mrs. Givan was one of the first members and a leading spirit in the
organization of the affiliate in the classified-advertising department.
She became a member of the Guild itself immediately after the con-
vention which enlarged the jurisdiction of the Guild. She was active
in soliciting members and in working for the Guild and was a mem-
ber of the Guild Executive Board. Both Young and Boettiger
admitted knowledge of her Guild activities.
Although Mrs. Givan was discharged during the course of the reor-
ganization, the position she held was not eliminated but was there.
after filled jointly by Harold Fackler and Verda Stark. The Com-
WILLIAM RANDOLPH HEARST 1269
pany explained that the dismissal of Mrs. Givan, unlike the other dis-
missals during the reorganization, was due not to elimination of the
position she occupied, but instead to the desire to replace Mrs. Givan
in this position. Russell W. Young, who was responsible for the
discharge of Mrs. Givan, stated that the reorganization presented to
him a favorable opportunity for releasing Mrs. Givan, with whose
work he had been dissatisfied for a number of years.
Numerous records and statistics were introduced into evidence to
establish the unsatisfactory nature of Mrs. Givan's work. In order to
evaluate these records, however, it would be necessary to weigh the
possible effects upon production in the telephone room and in the
classified-advertising department in general that may have resulted
from varying business conditions, from the strike, from a so-called
classified war which took place in 1935, from shifts in credit policy,
from alterations in rate schedules, and from other factors. One very
confusing consideration is introduced by the frequent creation and
elimination of divisions and bureaus in competition with the tele-
phone room and the shifting of functions and jurisdiction as between
the telephone room and these other divisions and bureaus. These
many variable factors make it impossible, as a practical matter, to
judge the nature of Mrs. Givan's work upon the basis of these
records.12
The other evidence as to the unsatisfactory nature of Mrs. Givan's
work lies in the testimony of Young to, some extent corroborated by
that of other witnesses who testified that Young had on occasion
expressed some measure of dissatisfaction with Mrs. Givan's work."
Young admitted that he had praised Mrs. Givan to her staff upon
her return to the Newspaper in 1933, and stated that he did so be-
cause he had found her work to be good during her prior period
with the Newspaper. He testified that he first became dissatisfied
with her work in 1934, and by the spring of 1935, felt that she should
be discharged. He did not, however, raise the question of her dis-
charge until the spring of 1936, when he suggested her dismissal to
Guy Daniel, who had been sent by the Hearst organization to exam-
ine and reorganize the classified-advertising department of the News-
"Among the statistics , which were introduced into evidence weie exhibits comparing
the work of Fackler, Mrs . Givan 's successor , with that of Mrs Givan These exhibits show
the work of Fackler to be considerably better than that of Mrs . Givan It is impossible
to state whether the reason for this difference in work performance is the result of an
extraordinary ability on the part of Fackler , or unsatisfactory work on the part of Mrs.
Givan In all events, this factor is in itself insufficient to demonstrate the unsatisfactory
nature of Mrs. Givan's work
13 There are two incidents in which these statements of dissatisfaction by Young occurred,
one at the time of the reorganization of the Company by Guy Daniel, and another when
Young was securing a raise for Mrs Givan . Both of these incidents are treated in the
course of the discussion
187930-39-vol 13-81
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paper. Daniel instead eliminated various bureaus which had been
set up in competition with the telephone room, placing one or two
of them under Mrs. Givan's supervision, and stated to Mrs. Givan
that she had been very unfairly treated by the creation of these
competing bureaus. This reorganization was followed within a
month or two by the strike. Mrs. Givan resumed her position upon
the termination of the strike.
In January 1937 Mrs. Givan threatened to resign unless her salary
was increased. Young secured a $5 increase for her in March,
although he testified that by this time he believed her work to be
poor and did so only in the hope that the increase would serve as
an incentive to Mrs. Givan to return to her former standard of good
work.14 In May, however, at the time that or shortly after the
Guild started organization of the classified-advertising employees
with Mrs. Givan as a leader in this a'Gtivity,16 Young was once again
convinced that Mrs. Givan should be discharged and brought the
question up with Boettiger, who vetoed the suggestion because of
the difficulties that might result in view of Mrs. Givan's active
participation in the work of the Guild. Finally, in July, when
proposals for reorganization were requested of department heads by
Boettiger, Young convinced Boettiger that the dismissal of Mrs.
Givan was essential for the propor functioning of his department.
Although the decision to discharge Mrs. Givan was arrived at before
July 19, Young permitted her to leave on vacation on that date
without informing her of this decision. The reason for his failure
to do so, as stated by Young, was because he thought it wise to put
Fackler through a trial period at Mrs. Givan's position before he
finally dispensed with her services.
Despite this testimony as to repeated dissatisfaction with Mrs.
Givan's work, on his own evidence Young did not regard her work
as sufficiently unsatisfactory to make a serious attempt to have her
dismissed until May, after her participation in the organization
of the classified-advertising department by the Guild. Although
Young stated that he was first dissatisfied with Mrs. Givan in 1934
and, by the spring of 1935, convinced that she should be discharged,
the question was not raised until the spring of 1936. At that time,
although the record is clear that Young, if he had insisted, could
have secured Mrs. Givan's dismissal in the course of the Daniel
14 Both Boettiger and Lindeman testified that Young at the time of his request for a
raise for Mrs . Givan stated that he believed her work to be poor.
"Mrs Givan testified that she was already a member of the Guild affiliate at the time
she received her salary increase However, she is obviously mistaken in this regard.
Aside from this statement the record is clear that the salary increase was received in
March, and the Guild affiliate organized in May, or at the eaihest, late in April
WILLIAM RANDOLPH HEARST 1271
reorganization, he did not do so.- Nor did he discharge her imme-
dately after Daniel left. In January when she threatened to leave,
Young kept her on, and in March he secured her an increase in
salary, conduct which is surprising on the part of one who had
allegedly been convinced since 1935 that Mrs. Givan should be dis-
charged. On cross-examination, Young explained his failure to dis-
charge Mrs. Givan on these various occasions, on the ground either
that her work was good at the time, or that he hoped her work would
improve. However, admittedly good work by Mrs. Givan during
the entire month immediately preceding the decision to discharge
her was discounted by Young as a mere pre-vacation spurt motivated
by Mrs. Givan's desire to boost her vacation pay."' The vacillations
in judgment that appear from this testimony are unsupported by
any other evidence of the work performance of Mrs. Givan and
serve only to impair the credibility of Young. Moreover, no evi-
dence indicates that Mrs. Givan's work was less satisfactory in May
when Young attempted to have her dismissed, than on the pre-
vious occasions when the question was raised and Young agreed in
the decision to retain her. As against this testimony by Young, Mrs.
Givan testified that the first time Young told her that he con-
sidered her work unsatisfactory was after her discharge 18
The Company contends in its exceptions and in its brief that the
decision to discharge Mrs. Givan did not result from a determination
that she was unsatisfactory in an absolute sense but rather that its
motivation was the desire to replace Givan with an obviously supe-
rior employee in Fackler. In the language of the Company's brief,
the decision to discharge Givan was made, since in the course of a
reorganization involving the elimination of four girls from the tele-
phone room "the management believed that Mr. Fackler would more
nearly maintain production with a reduced staff than would Mrs.
Givan." This contention, however, is not borne out by the record.
Young's original decision to discharge Mrs. Givan was made in May,
before the problem of the reorganization had been presented. Fack-
ler had been in the employ of the Company for some time before the
strike in 1936, and was available to replace Mrs. Givan then, and
19 The Company contends in its brief that it is unrealistic to argue that Young could
have discharged Mrs Givan at this time. However , Young, on the witness stand , insisted
that it was within his power to do so and had no explanation for his failure to cause
Mrs. Givan ' s discharge
"Vacation pay was fixed in accordance with the average earnings for the month pre-
ceding the vacation
'B The Company contends in its brief that Mrs Givan admitted other instances in which
she had been criticized because of her work by Young . We do not believe that this evi-
dence is at all inconsistent with the statement in the text , since in the normal course of
working relations, supervisors will criticize the work of employees under them and suggest
methods of improvement . Such criticisms and suggestions by no means imply that the
work of the employee is considered to be unsatisfactory
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in January, when Mrs. Givan threatened to quit. Yet on both of
these occasions Young decided to retain Mrs. Givan despite the
availability of Fackler. Further, there is no evidence presented in
the record to justify the judgment, prior to the reorganization, that
Fackler was far superior to Givan.19 Indeed, even when Young had
already made the decision to discharge Mrs. Givan, he did not inform
her because he still entertained considerable doubt that Fackler and
Stark jointly could adequately fill the position.
Helen Hoover was employed in the telephone room of the classi-
fied-advertising department and worked under the supervision of
Mrs. Givan. At the time of her discharge on July 27, 1937, she was
in charge of the so-called Miss West territory and her duties in-
volved the solicitation of classified advertisements for rentals and
room and board. She entered the employ of the Company in Janu-
ary 1937 and was promoted to the Miss West territory on March 22.
During the period from March 22 to the date of her discharge she
improved her territory from a relative standing of ninth or tenth
to a position among the five highest territories in the telephone room.
In June, the month preceding her discharge, her territory ranked
fourth in the telephone room. In the same month Miss Hoover won
one of six prizes in a contest for the solicitation of ads in which all
the employees in the classified-advertising department participated.
She was the only prize winner in this contest who was discharged
in the reorganization in July. The record is clear that Miss Hoover
ranked with the best employees in the telephone room.20
Miss Hoover was chairman of the Guild unit in the classified-ad-
vertising department, and was on the shop committee of the Guild.
Her union activities were known to both Young and Boettiger.21
When Young received the memorandum from Boettiger asking
for recommendations for dismissals in accordance with the proposed
reorganization, he asked Mrs. Givan for her suggestions as to persons
working under her. Mrs. Givan presented the names of some four
girls to be dismissed, but Hoover's name was not among them. Mrs.
Givan discussed these people with Young, and Young seemingly
agreed with her that these four would be dismissed, and submitted
10 See footnote 12 for factors occurring after the reorganization upon which such a
judgment might at present be based.
20 Miss Hoover exceeded the production figures of two of her predecessors on the Miss
West territory, Leda Davis and L. Boatsman, both of whom were promoted to a better
post on the basis of their work on this territory . Young, himself, testified that Hoover
"did a very satisfactory job."
21 The Company in its brief contends that this statement is not supported by the record.
However, in addition to Hoover 's appearance on a committee that called on Boettiger,
Boettiger testified that the question of Hoover 's affiliations were discussed with Young
at the time of the decision to discharge her, and that they decided that they "would have
to stop leaning so far over backwards," since "it was a question of the efficiency of the
office entirely."
WILLIANI RANDOLPH HEARST 1273
to Boettiger a memorandum of recommendations containing these
names.22 However, after Mrs. Givan had left on vacation, Young
went to Boettiger and told him that since the work of Mrs. Gregory,
one of the four whose dismissal had been recommended in Young's
memorandum, had improved considerably since the submission of the
memorandum, he thought it would be best to keep her on and dismiss
Hoover instead. Despite his reluctance to discharge anyone who had
been active for the Guild, at Young's insistence, Boettiger acquiesced
in this recommendation. The record, however, shows no such im-
provement in the work of Gregory and shows that Hoover's record
for the month of July was better than that of Gregory.23 Young
mentioned as another factor in his choice of Hoover her short period
of service with the Company. However, although Hoover did not
rank high in seniority, she had a longer period of service than at
least two employees who were not dismissed. Furthermore, the record
is clear that the primary consideration as to who was to be dis-
charged in the reorganization was supposed to be efficiency rather
than seniority.
The Company introduced in evidence a letter from Young to a
Hearst paper in San Francisco listing the employees in his depart-
ment who had been discharged in the course of the reorganization
and inquiring whether they could be taken on in San Francisco.
This letter included Miss Hoover's name among others, although it
warmly recommended two employees on the list, not including Miss
Hoover. The Company argues that this letter indicates a lack of
any intent on Young's part to discriminate against Hoover because
of her Guild activities. Miss Hoover, however, testified that when
she applied for a job at this newspaper , she was at first greeted very
warmly and was told that there probably would be an opening.
When asked for a recommendation, she referred her interviewer to
Young. After sufficient time had elapsed for this reference to be
checked, Miss Hoover returned, and, in contrast to her previous
reception, was treated very coldly and informed that there were no
openings. A similar pattern of events was traced at two other Hearst
newspapers. This change in treatment at all three of the newspapers
is explicable only by Young's failure to respond favorably to in-
quiries as to Miss Hoover's qualifications. At the least, this treat-
22 Young stated that he had not yet come to a definite decision at this time, but was
debating in his mind between Mrs. Gregory, one of the four suggested by Givan, and
Miss Hoover. However, none of these doubts were communicated to Givan, and the
memorandum of recommendations which Young submitted to Boettiger and which con-
tained Givan's name, contained Gregory's name but not Hoover's.
R3 Young explains this by stating that the seasonal trend for Hoover's territory was on
the upgrade, while the trend for Gregory's territory was on the downgrade. However, no
evidence was introduced that would tend to corroborate this statement, and we cannot
accept Young's testimony on this point as convincing in the absence of any support.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment indicates that the dispatch of the letter was not what the
respondent contended it to be, a sincere attempt to find another
position for Miss Hoover.
The motive for the discharge of Mrs. Givan and Hoover is revealed
in Young's hostility toward the Guild and in his favorable disposition
toward its rival, the Advertising Workers. Young was a leading
spirit in the anti-Guild activities during the strike.24 At the hear-
ing, he stated that he was in favor of the proposal regarding hours
of work made by the Advertising Workers while opposed to the stand
taken by the Guild on that issue. He condoned and sanctioned cer-
tain of the activities of Joe Faas, president of the Advertising
Workers, in promoting the Advertising Workers and attacking the
Guild. For example, when, sometime in May of 1937, it was brought
to Young's attention by Mrs. Givan, who supervised Faas' work, that
Faas was devoting a great deal of working time to organization
activities for the Advertising Workers, instead of reprimanding Faas,
Young removed Givan's control over Faas.25 The reading by Faas
of an anti-Guild statement during a broadcast sponsored by the
Newspaper, went unreprimanded by Young, although, according to
his own testimony, he was instructed to do so by Boettiger.26 Further,
Young consented to the holding of the organization meeting of the
Advertising Workers on the premises of the Newspaper'27 and at-
tended a picnic sponsored by the Advertising Workers and to which
only members or prospective members of the Advertising Workers
were invited. Both Fackler and Stark who jointly replaced Mrs.
Givan were members of the Advertising Workers 28 and had been
active with Young in anti-Guild activities during the strike. Young's
"These activities consisted of the preparation and insertion, in other newspapers, of
appeals to the public, of radio broadcasts , and of talks to various clubs and organizations
in Seattle , all attacking the Guild and justifying the position of the Newspaper. In
addition, there was inaugurated a campaign of house-to-house canvassing requesting the
public of Seattle to support the Newspaper in the strike by refusing to use the services
of members of the local chapter of International Brotherhood of Teamsters , Chauffeurs,
Stablemen & Helpers of America, which at that time was supporting the Guild.
Mrs. Givan testified that she was a close filend of Armstrong , one of the two Guild
members whose discharge had precipitated the strike , and that she was told by Young
not to associate with Armstrong because be was a "wild -eyed Bolshevik." She testified
further that Young told her and others not to attend the Board hearing that grew out
of the discharges of Armstrong and Lynch . Young did not deny this testimony of
Mrs. Givan.
"Although there was considerable controversy in the record as to whether Faas was
in fact under Givan's control, Young testified that it was his understanding that Faas was.
2" Faas, however , was reprimanded by Boettiger.
" When the fact that this meeting had been permitted was brought to Boettiger's
attention by the Guild , Boettiger forbade any future meetings of the Advertising Workers
or any other labor organization on the premises of the Newspaper.
m Both Fackler and Stark denied they were members of the Advertising Workers, but
the records of this organization contained their names as members and a petition intro.
duced by the Advertising Workers and purporting to bear the signatures of members of
that organization had been signed by both of them. In addition , Mrs. Stark had assisted
in calling the organization meeting of the Advertising Workers.
WILLIAM RANDOLPH HEARST 1275
suggestion in May that Mrs. Givan be discharged was made during
the height of the rivalry in the classified-advertising department
between the. Guild and the Advertising Workers. It followed within
a few days Mrs. Givan's report to Young that Faas was neglecting
his work to promote the Advertising Workers.
There is no showing in the record that Mrs. Givan's work was
unsatisfactory, and we are satisfied that Young did not regard her
work as unsatisfactory to the point of requiring her discharge. We
are satisfied as well that Young did not regard Fackler's ability as
so superior to Givan's as to necessitate, for the proper functioning
of the Newspaper, Givan's replacement by Fackler. Nor is there
anything in the record of either Gregory or Hoover for the month
of July that would justify the decision to substitute Hoover for
Gregory as the fourth employee in the telephone room to be dis-
missed. We conclude, therefore, that Young was motivated in his
discharge of Mrs. Givan and Hoover by his hostility toward the
Guild and his preference for the Advertising Workers. Although
checked in his desire to dismiss Mrs. Givan in May, Young saw in
the reorganization in July a further opportunity and this time was
successful. The reorganization furnished a similar opportunity
with respect to Hoover.
The discharge of Mrs. Givan and Hoover was followed by a con-
siderable loss by the Guild of membership among the employees in
the classified-advertising department.
At the close of the hearing, for the stated purpose of making its
answer conform to the proof, the Company moved to amend its
answer to include, as a response to the allegation of the discrimi-
natory discharge of Mrs. Givan, the defense that she had been dis-
missed, because as a. supervisor, possessing the power to hire and
discharge, she had dominated employees in the formation and ad-
ministration of the Guild and had interfered with the formation of
the Advertising Workers. This motion was denied by the Trial
Examiner. The Company now charges inconsistency, contending
that Mrs. Givan cannot be found to have been discharged for union
activities, and, at the same time, the Company be denied the oppor-
tunity to plead as a defense the fact that she engaged in union
activities. A similar position was taken in the exceptions, and in
the memorandum brief submitted on behalf of the Advertising
Workers and the Drivers Union.
We believe that this contention is without merit. If an employer
were to prove that its discharge of a supervisor for his union activi-
ties was motivated by a desire to conform with the Act, and permit
a free choice of representatives by its employees, it might well make
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out a valid defense. Particularly might such a defense be raised
if the discharge were effected in a way that made clear to the em-
ployees that the employer's abjection was not to union activity as
such, but to union activity of a supervisor interfering with the
rights of the employees. In such case, the discharge would not dis-
courage the membership of the ordinary employees in the union.
That, however, is not the situation before us. None of the Com-
pany's officers or supervisors testified that the Company's action was
directed against Mrs. Givan's union activities. On the contrary, the
Company officials insisted that the entire' discussion on Givan's dis-
missal revolved about the quality of her work, and that her union
activities were considered only as a factor that would urge her re-
tention rather than her discharge. We may presume that if the
Company was at all motivated in its discharge of Givan by a desire
to prevent her from interfering with the rights of subordinates,
Young, Lindeman, or Boettiger would have so stated. In the ab-
sence of such testimony, we must conclude otherwise. Givan was
discharged not in order to conform with the Act but in order to
discourage membership in the Guild, and the discharge was accom-
plished in such a way that its effect was to discourage membership
therein. The amendment to the answer offered by the Company
was unsupported by the record. For these reasons, we overrule the
exceptions on this matter and affirm the Trial Examiner's ruling.
We find that the Company discriminated because of union activi-
ties in the discharges of Ruth Givan and Helen Hoover, thereby dis-
couraging membership in the Guild.
Mrs. Givan's average weekly earnings were $40. She has not been
employed since her discharge. Hoover's average weekly earnings
were $24. She has been employed as an usher since her discharge, and
her approximate earnings since that date are $140.
Ray Griffith. Ray Griffith was employed as a district- manager in
the circulation department of the Newspaper. There were 13 dis-
trict managers whose chief duties were the delivery of the Seattle
Post-Intelligencer to subscribers within the city limits of the city of
Seattle. When Murphy, the supervisor for the district managers, was
asked for his recommendations in accordance with the proposed plan
of reorganization, he suggested that two district managers, Short and
Griffith, be dismissed. However, since Short was the organizer for
the Guild among the district managers, Boettiger rejected the sug-
gestion that Short be dismissed, stating that he did not wish any
difficulty with the Guild even if Short was the worst among the dis-
trict managers. The name of Jackson was then substituted for that
WILLIAM RANDOLPH HEARST 1277
of Short. Griffith was thereafter discharged on July 29.29 Griffith
has since been returned to the pay roll of the Newspaper, although
in a position poorer than the one he formerly held.
The evidence in the record as to the comparative merit of the dis-
trict managers shows that Griffith was among the poorer four or
five of the district managers. Omitting consideration of Short, a
decision that Griffith was the poorest of the district managers cannot
be said to be arbitrary or unreasonable. Nor does the record show
that Griffith was exceptionally active on behalf of the Guild. All
but one district manager were Guild members, and the work of the
non-member was clearly superior to that of most of the other district
managers. Thus, any district manager discharged would necessarily
have been a Guild member. Seller, the organizer for the Guild, testi-
fied that regardless of which of the district managers had been dis-
charged, the Guild would have filed charges with the Regional
Director.
Despite considerable evidence that Murphy was hostile to the
Guild,so the record does not support the charge that Griffith was dis-
charged because of union activities. Griffith's subsequent reemploy-
ment by the Company tends to corroborate this conclusion. We find
that Ray Griffith was not discharged because of his union activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the Company with respect to Ruth
Givan and Helen Hoover set forth in Section III above, occurring
in connection with its operations described in Section I above, have
a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since we have found that the Company discriminatorily discharged
Ruth Givan and Helen Hoover because of their union activity, we
will order the Company to offer both of said persons full reinstate-
ment to their former or substantially equivalent positions and to make
each of them whole for any loss of pay she may have suffered by
reason of her discharge by payment to each of them of a sum equal
20 Jackson was not discharged during the course of the reorganization The dismissal
of Murphy ( see footnote 30) within a week aftJr the discharge of Griffith left a vacancy
among the district managers, and Jackson was retained.
8D At a breakfast which Murphy requested all district managers to attend, he addressed
them and told them that they should leave the Guild and join the Drivers Union when
the news of this breakfast came to the attention of Boettiger , Murphy was dismissed.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the amount which she normally would have earned as wages from
the date of her discharge to the date of the offer of reinstatement,
less her net earnings Sl during said period.
We will also order the Company to cease and desist from inter-
fering with, restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
We have found that Ray Griffith was not discriminatorily dis-
charged because of union activity. We will, therefore, dismiss the
complaint in so far as it relates to Ray Griffith.
We have found that none of the individuals named in the com-
plaint are or have been employees of the respondents William Ran-
dolph Hearst, Hearst Consolidated Publications, Inc., Hearst Cor-
poration, American Newspapers, Inc., and King Features Syndicate,
Inc. We will, therefore, dismiss the complaint as to these respond-
ents.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Seattle Newspaper Guild, Local No. 82, Newspaper Drivers
and Helpers, Local No. 763, Classified and Display Advertising
Writers and Workers Union are all labor organizations, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Ruth Givan and Helen Hoover and thereby discouraging
membership in the Guild, the Company has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the Company has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
81 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his or her
unlawful discharge and the consequent necessity of seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590 , 8 N L R B 440. Monies
received for work performed upon Federal , State , county, municipal , or other work-relief
projects are not considered as earnings , but as provided below in the Order , shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State, county, municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects.
WILLIAM RANDOLPH HEARST 1279
5. The Company has not discriminated in regard to the hire and
tenure of employment of Ray Griffith, within the meaning of Sec-
tion 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Hearst Publications, Inc., San Francisco, California, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership or activity in Seattle Newspaper
Guild, Local No. 82, or any other labor organization of its employees
by discriminating in regard to hire or tenure of employment or any
term or condition of employment;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Ruth Givan and Helen Hoover immediate and full
reinstatement to their respective positions which each of them held
with the Company on the date of their discharge, or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges;
(b) Make whole Ruth Givan and Helen Hoover for any loss of
pay they have suffered by reason of their discharge by payment
to each of them of a sum of money equal to that which each would
normally have earned as wages during the period from the date
of their respective discharges to the date of the offer of reinstate-
ment, less her net earnings during that period, deducting, however,
from the amount otherwise due to each of said employees, monies
received by said employee during said period for work performed
upon Federal, State, county, municipal, or other work-relief proj-
ects; and pay over the amount, so deducted, to the appropriate fiscal
agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief
projects;
(c) Post immediately and keep posted for a period of at least
sixty (60) consecutive days from the date of posting notices to its
employees in conspicuous places at the office of the Seattle Post-
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intelligencer in Seattle, Washington, stating that the Company will
cease and desist in the manner set forth in paragraph 1 of this
Order;
(d) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the date of this Order what steps
the Company has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent, Hearst Publications, Inc., has discriminatorily
discharged Ray Griffith within the meaning of Section 8 (3) of the
Act, be, and it hereby is, dismissed.
AND IT Is FURTHER ORDERED that the complaint, in so far as it alleges
that the respondents William Randolph Hearst, Hearst Consolidated
Publications, Inc., Hearst Corporation, American Newspapers, Inc.,
and King Features Syndicate, Inc., have engaged in unfair labor
practices within the meaning of the Act, be, and it hereby is, dismissed.
MR. WILLIAM M. LEI5ER.SON took no part in the consideration of the
above Decision and Order.