Hearst Publishing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1955

113 N.L.R.B. 384 (N.L.R.B. 1955)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY ORDERED that, in the event the ballot of Glen Stoddard,
when opened and counted, does not determine the results of the elec-
tion, a hearing be held to determine the issues raised by the objections
and exceptions to conduct affecting the results of the election.
IT IS FURTHER ORDERED that, in the event a hearing is held, the hearing
officer designated for the purpose of conducting the hearing shall pre-
pare and cause to be served upon the parties a report containing resolu-
tions of the credibility of witnesses, findings of fact, and recommenda-
tions to the Board as to the disposition of said objections. Within ten
(10) days of receipt of such report, any party may file with the Board
in Washington, D. C., an original and six copies of exceptions thereto.
Immediately upon the filing of such exceptions, the party filing shall
serve a copy thereof upon each of the other parties, and shall file a
copy with the Regional Director. If no exceptions are filed thereto,
the Board will adopt the recommendations of the hearing officer.
IT IS FURTHER ORDERED that the above-entitled matter be, and it here-
by is, referred to the Regional Director for the Sixteenth Region for
disposition as provided for herein, and in the event a hearing is held,
the Regional Director is hereby authorized to issue early notice thereof.
CHAIRMAN FARMER took no part in the consideration of the above
Supplemental Decision, Direction, and Order.
Hearst Publishing Company, Inc. (Los Angeles Examiner Divi-
sion) and Los Angeles Newspaper Guild , CIO, and Association
of Classified Advertising Employees of the Los Angeles Ex-
aminer. Case No. 21-CA-1702. July 29, 1955
DECISION AND ORDER
On June 3, 1954, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the Union filed
exceptions to the Intermediate Report; the General Counsel filed a
brief in which the Union joined; and the Respondent filed a reply
brief in which the Association joined.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
I The Union also requested oral argument. Because the record and briefs, in our opinion,
adequately present the issues and the positions of the parties, the request is hereby denied.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a 3-member panel. [Chairman Farmer and Mem-
bers Murdock and Peterson.]
113 NLRB No. 40.
HEARST PUBLISHING COMPANY, INC. -385
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except insofar as they are inconsistent with the
findings, conclusions, and order set forth below.
1. We note that, in deciding the issues in this case, the Trial Ex-
aminer has consistently credited the Respondent's witnesses as against
those of the General Counsel. The General Counsel, in excepting to
the Intermediate Report, contends that the Trial Examiner erred in
this respect, and points out numerous inconsistencies and contradic-
tions in the testimony of the Respondent's witnesses to prove that they
are unworthy of belief. We have carefully considered this contention,
and agree that the record raises some question as to the reliability of
these witnesses. We are not convinced, however, that the clear pre-
ponderance of all the relevant evidence shows that the Trial Examin-
er's resolutions of credibility were incorrect. Accordingly, we adopt
the Trial Examiner's credibility findings and his findings of fact
based thereon.3
2. In dismissing the 8 (a) (2) allegation of the complaint, the Trial
Examiner relied in part on his finding that the union-security provi-
sion in the 1951 contract between the Respondent and the Association
did not exceed the permissible bounds of such clauses. We do not agree.
The clause in question was as follows :
No one shall be employed in the Classified Advertising Depart-,
ment of the Publisher's newspaper, the Los Angeles Examiner,
except as hereinafter provided in Section II hereof, who is not
either :
(1) A member of the Association in good standing as deter-
mined by the Membership Committee of the Association, or
(2) A person whose application is pending and which applica-
tion has not been denied, or
(3) A person who shall within one week after employment
make application for membership in the Association.
Under the proviso to Section 8 (a) (3) of the Act, an employer and
a union may, under certain circumstances, enter into an agreement
"to require as a condition of employment membership [in the union]
on or after the thirtieth day following the beginning of such employ-
ment." The union-security provision in this case did not expressly
require new employees to become members of the Association in less
than 30 days. It did, however, require as a condition of employment
that they apply for membership within 1 week after being employed,
and thereby made it possible for the Association, if it desired to do
so, to admit them to membership, and impose on them the obligations
3Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C. A. 3).
386, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of membership, before the expiration of the statutory grace period.
We do not believe that such a requirement falls within the limited
form of union security permitted under the Act.
As the 1951 contract,-containing the unlawful union-security provi-
sion, was entered into more than 6 months before the filing of the
original charge herein, we are precluded, under Section 10 (b) of
the Act, from finding that the execution of the contract was an unfair
labor practice. The provision, however, remained in effect during the
6-month period preceding the filing of the charge and until June 29,
1953, when a new contract was executed. We find that, by maintain-
ing the unlawful provision in effect during this period, the Respondent
contributed support to the Association in violation of Section 8 (a)
(2) 4
3. The complaint alleged that the Respondent discriminatorily dis-
charged 17 employees because of their union or protected concerted
activities. The Trial Examiner found that none of these employees
were discharged for union activities, and we find no clear reason to
reverse these findings. Admittedly, however, one of the reasons given
by the Respondent for the discharge of certain of the employees was
their participation, in an attempt to oust their supervisor. The Trial
Examiner concluded that this was not a form of concerted activity
protected by the Act and that the Respondent was therefore justified
in its action. Under the circumstances of this case, we do not agree
with this conclusion. -
The facts, as found by the Trial Examiner, are substantially as
follows : On April 27, 1953, Sally Hamilton was made supervisor
of the Respondent's telephone salesroom in place of Erma Phinney,
who was given a nonsupervisory position in another division. Hamil-
ton was reluctant to take the position because she believed she would
have trouble with some of the girls who had been given special privi-
leges by Phinney and would resent having them taken away. Man-
ager Horn, however, persuaded her to take the job, after suggesting
that, some of the girls could be discharged and assuring her of his
full cooperation. Shortly thereafter, Hamilton, having encountered
the difficulties she had expected in her attempts to maintain discipline,
asked Horn for her old job. Horn persuaded her to remain as super-
visor, again telling her that she might have to make some changes.
In the meantime, some of the girls in the salesroom had begun com-
plaining among themselves about Hamilton's strict supervision; and
on May 18, Marsland, assistant supervisor under Hamilton as she
had been under Phinney, asked Marie Grewe, president of the Asso-
ciation and steward of the salesroom, to speak to some of the girls.
Crewe, without knowing what they wanted to discuss, agreed, and
made arrangements to have the use of a room for this purpose after
' See Parker Brothers and Company, 101 NLRB 872.
HEARST PUBLISHING COMPANY, INC. 387
work the following day. At noon on the day of the scheduled meet-
ing, a number of the girls met in a drugstore across the street from
the Respondent's place of business, and discussed various grievances
about their working conditions, particularly complaints about Ham-
ilton's supervisory practices. That afternoon Hamilton learned from
some of the girls that a meeting had been held and that another.was
to be held later in the day.
After work, Grewe, who had not been present at the noon meet-
ing, waited for the girls, but none of them appeared. She then asked
Hamilton to go to the drugstore during the coffee break the next morn-
ing so that Grewe could talk to the girls in the salesroom, and Hamil-
ton agreed to do so. Hamilton thereupon went to Horn's office and told
him about Grewe's request and what she had learned about the drug-
store meeting and the meeting that had been planned for that evening.
Immediately thereafter, Horn had a conversation with Grewe, in the
course of which he expressed his displeasure with her for having asked
Hamilton to go across the street so that she could have a meeting with
the girls.
During the next few days, Hamilton talked further with the girls
who had told her about the drugstore meeting, and learned from
them the names of the "ringleaders." They also told her that the
prime purpose of the meeting was to oust her as supervisor, and that
Marsland and her "clique" were at the bottom of the conspiracy. Ham-
ilton then had another conversation with Horn, in which she asked
permission to discharge Florence Cooper, one of the reported ring-
leaders; and Horn gave her permission to discharge anyone who was
not cooperating with her. On Friday evening, May 22, Horn dis-
charged Grewe, and Hamilton discharged Cooper. ' The following
week, Horn discharged Phinney and Marsland, and Hamilton dis-
charged Violet Grimm, Coy Flanagan, Beverly Harris, Joan Barry,
Margaret Naslund, Fay McCleary, and Rita Campo, all of whom had
been reported to her as ringleaders of the drugstore meeting.
Upon these facts the Trial Examiner found that the drugstore
meeting was held primarily for the purpose of removing Hamilton
as supervisor, and that Marsland, who aspired to be supervisor, was
the instigator of the meeting. He therefore concluded on the basis
of Joanna Cotton Mills v. N. L. R. B.,5 that the employees were not
engaged in protected concerted activities. In the Joanna Cotton Mills
case , however, the court, in reversing the Board's finding that the
employer had violated the Act by discharging an employee for cir-
culating a petition asking for the discharge of a secondhand, did so
on the ground that the circulation and presentation of the petition
was not concerted activity of employees for their mutual aid and pro-
tection, but was merely an effort on the part of the employee who
5 176 F. 2d 749 (C. A. 4).
'388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circulated 'the petition to vent his personal spleen upon a supervisor
whose rebuke in the performance of duty had angered hint. We find
nothing in this case to indicate that these employees were similarly
motivated. Rather this appears to have been a case of a group of
employees, all having common grievances against their supervisor,
seeking to bring these grievances to the attention of management. So
far as the record shows, their only idea was to try to do this through
the Association, or, if that failed, through the Union. In our opinion
this was reasonable and temperate conduct by employees who believed
-they had a real cause for compliant, and was therefore within the
scope of concerted activity protected by the Acts _
4. In view of our finding, above, that the concerted, activities center-
ing about the drugstore meeting on May 19 were protected, we dis-
agree with the Trial Examiner's failure to find that the Respondent
violated Section 8 (a) (3) of the Act by discharging employees Barry,
Campo, Cooper, Flanagan, Grimm, Harris, McCleary and Naslund.
Although Hamilton testified, and the Trial Examiner found, that
other considerations, such as habitual tardiness, poor work, low pro-
duction, and a disrespectful or hostile attitude toward Hamilton,
entered into her decision to terminate the employment of these em-
ployees, there is no evidence that they had ever been warned that they
would be discharged for these reasons. This circumstance, together
.with the fact that all of these employees had been reported to Hamil-
ton as ringleaders in the drugstore meeting, and that the discharges
took place within a few days afer she received this information, con-
vinces us that participation in that meeting was the real reason for
the discharges. Accordingly, we find that by discharging Barry,
Campo, Cooper, Flanagan, Grimm, Harris, McCleary, and Naslund
.because of their concerted activities for mutual aid and protection,
the Respondent interfered with, restrained, and coerced its employees
in violation of Section 8 (a) (1). As such conduct also tends to dis-
courage membership in labor organizations, we further find that the
,Respondent thereby violated Section 8 (a) (3).1
5. Unlike the Trial Examiner, we find that the Respondent violated
Section -8 (a) (1) of the Act by questioning employees and applicants
for employment regarding their union affiliation.
As set forth in the Intermediate Report, the record shows that the
Respondent makes use of employment record cards which are filled
°Phoendm Afutval Life Insurance Company , 167 F. 2d 983 (C. A. 7). See also, Wood
Parts, Inc, 101 NLRB 445, and Ace Handle Corporation, 100 NLRB 1279.
7, The Trial Examiner found that one of the reasons tor the discharges of Grewe and
Marsland was Horn's belief that they had participated in the movement to oust Hamilton
-Grewe was reinstated with back pay about 2 weeks after her discharge, so no remedial
order, would be required in her case in the event of an 8 (a) (3) finding. We shall there-
- fore dismiss the complaint as to her without deciding whether her discharge was discrimi-
natory. As Marsland was a supervisor and therefore not within the protection of the Act,
we shall also dismiss the complaint as to her.
HEARST PUBLISHING COMPANY, INC. 389
out several days after the employees start work. These cards are in
2 forms, 1 of which has a space for the employee's union affiliation.
Although Business Manager Mount testified that the form calling for
this information is intended for use only in departments in which the
Respondent has closed-shop contracts and therefore needs such infor-
mation," it appears that in some instances it has also been used in
the classified advertising department, where there is no such reason
for its use. The fact that in these instances it may have been used
inadvertently, as Mount's testimony appears to indicate, does not, in
our opinion, affect the coercive effect of such interrogation. Further-
more, employee Phinney testified without contradiction that while
she was supervisor of the telephone salesroom, she questioned appli-
cants for employment as to whether they belonged or ever had be-
longed to a union. In view of the Respondent's other unfair labor
practices, we disagree with the Trial Examiner's conclusion that
Phinney's conduct in this respect was "an isolated instance of possible
misconduct by a supervisor" not warranting the issuance of a cease
and desist order against the Respondent. Accordingly, we believe and
find that, under the circumstances of this case, both the Respondent's
use of the employment record card calling for information as to the
union membership of new employees and Phinney's interrogation
of applicants for employment as to whether they belonged to a union
reasonably tended to restrain and interfere with employees in the
exercise of rights guaranteed by the Act and therefore constituted
violations of Section 8 (a) (1).9
Upon the basis of the above findings of fact, and the entire record
in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS OF LAW
1. By contributing support to Association of Classified Advertising
Employees of the Los Angeles Examiner, the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (2) and
(1) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Joan Barry, Rita Campo, Florence Cooper, Coy Flanagan, Violet
Grimm, Beverly Harris, Fay McCleary, and Margaret Naslund, be-
cause of their concerted activities for their mutual aid or protection,
thereby discouraging membership in labor organization, the Respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
e Contrary to the Trial Examiner's finding, Mount's testimony was to the effect that the
Respondent still has such closed-shop contracts, "whether it is legal or not " However,
the contracts themselves are not in evidence, and their legality is not in issue in this case.
9 Blue Flash Express, Inc., 109 NLRB 591
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2 (6) and (7) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in section I
of the Intermediate Report, have a close, intimate, and substantial re-
lation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act.
We have found that the Respondent discharged Joan Barry, Rita
Campo, Florence Cooper, Coy Flanagan, Violet ^ Grimm, Beverly
Harris, Fay McCleary, and Margaret Naslund because they engaged in
concerted activities for their mutual aid and protection. Whether the
discharges be deemed violative of Section 8 (a) (1) or (3), we find
that the remedy of reinstatement with back pay is appropriate and
necessary. We shall therefore order the Respondent to offer to these
employees immediate and full reinstatement to their former or substan-
tially equivalent positions,1° without prejudice to their seniority and
other rights and privileges, and make them whole for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them by paying to each of them a sum of money equal to that
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
during said period,ll except that, in accordance with our usual prac-
tice, the period from the date of the Intermediate Report to the date
of the Order herein will be excluded in computing the amount of back
pay due, because of the Trial Examiner's recommendation that the
complaint be dismissed. The back pay shall be computed on a quar-
terly basis in the manner established by the Board in F. W. Woolworth
Company.12 We shall also order the Respondent to make available to
the Board upon request payroll and other records necessary to compute
the amount of back pay due:
10 The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827.
11 Crossett Lumber Company, 8 NLRB 440
22 90 NLRB 289.
HEARST PUBLISHING COMPANY, INC. 391
We have further found that the 1951 contract between the Respond-
ent and the Association contained a provision which unlawfully re-
quired employees to apply for membership in the Association within
1 week after employment, and that, by maintaining this provision in
effect from December 2, 1952, until June 29, 1953, the Respondent
violated Section 8 (a) (2) of the Act. We shall therefore order the
Respondent to refrain from entering into or giving effect to any such
arrangement with the Association. In view of all the circumstances,
however, we shall not order the Respondent to cease giving effect to
it entire contract with the Association, nor shall we order it to with-
draw or withhold recognition from the Association.13
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor prac-
tices may be anticipated. We shall, therefore, make our order herein
coextensive with the threat by ordering the Respondent to cease and
desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Hearst Publishing Com-
pany, Inc. (Los Angeles Examiner Division), Los Angeles, Cali-
fornia, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees or applicants for employment con-
cerning their union membership in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8 (a) (1) of the
Act.
(b) Entering into or giving effect to any arrangement with Asso-
ciation of Classified Advertising Employees of the Los Angeles Ex-
aminer which requires employees to become members of said organ-
ization, or to apply for membership therein, except to the extent
permitted in Section 8 (a) (3) of the Act.
(c) Discouraging employees from engaging in concerted activities,
or joining or assisting labor organizations, by discharging or refus-
ing to reinstate any of its employees, or by discriminating in any
other manner in regard to hire or tenure of employment or any term
or condition of employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
13 Ordinarily the Board requires an employer who has illegally assisted a union to cease
giving effect to any collective -bargaining agreement with said union, and to withhold recog-
nition from it, unless and until certified by the Board . However, the adoption of such an
order is discretionary with the Board , and need not be applied where it would not effectuate
the policies of the Act . Pacific Intermountain Express Company , 107 NLRB 837.
379288-56-vol 113-26
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist Los Angeles Newspaper Guild,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all of such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Joan Barry, Rita Campo, Florence Cooper, Coy
Flanagan, Violet Grimm, Beverly Harris, Fay McCleary, and Mar-
garet Naslund immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for any loss
of pay they may have suffered by reason of the Respondent's dis-
crimination against them, in the manner set forth in the section
entitled "The Remedy."
(b) Upon request make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to compute the amounts of back pay due.
(c) Post at its plant at Los Angeles, California, copies of the notice
attached hereto marked "Appendix.714 Copies of said notice, to be.
furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the Respondent violated Sec-
tion 8 (a) (3) of the Act by discharging Alice Gietz, Marie Grewe,
Mina Marsland, Patsy Matthews, Dorothy Pauline McGuire, Beverly
Parker, Erma Phinney, Eunice Rebenstoff, and Olga Tash, that it
violated Section 8 (a) (4) by discharging McGuire, and that it vio-
14 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
HEARST PUBLISHING COMPANY, INC. 393
lated Section 8 (a) (1) and Section ( a) (2) by conduct other than
that herein found to be violative of the Act.
CHAIRMAN FARMER, dissenting in part :
I dissent from the majority decision in this case insofar as it finds
that the Respondent has engaged in unfair labor practices. In my
opinion, the Trial Examiner has considered the evidence carefully
and resolved the issues correctly, and I would therefore adopt the In-
termediate Report in its entirety.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision an&Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees or applicants for em-
ployment concerning their union membership in a manner con-
stituting interference, restraint, or coercion in violation of Section
8 (a) (1).
WE WILL NOT enter into or give effect to any arrangement with
Association of Classified Advertising Employees of the Los
Angeles Examiner which requires employees to become members
of said organization, or to apply for membership therein, except
to the extent permitted in Section 8 (a) (3) of the Act.
WE WILL NOT discourage concerted activities or membership in
labor organizations by discharging or refusing to reinstate any of
our employees, or by discriminating in any other manner in regard
to hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join, or assist Los Angeles
Newspaper Guild, CIO, or any other labor organization, to bar-.
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges, and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them.
Joan Barry Violet Grimm
Rita Campo Beverly Harris
Florence Cooper Fay McCleary
Coy Flanagan Margaret Naslund
HEARST PUBLISHING COMPANY, INC.
(Los ANGELES EXAMINER DIVISION),
Employer.
Dated---------------- 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by Los Angeles Newspaper Guild,
affiliated with Congress of Industrial Organizations , herein called the Union, the
General Counsel of the National Labor Relations Board , herein called respectively
the General Counsel' and the Board, issued his complaint , dated July 29, 1953,
against Hearst Publishing Company, Inc. (Los Angeles Examiner Division ), herein
called Respondent , alleging that Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1),
(2), and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, as
amended, 61 Stat . 136, herein called the Act. On August 14, the General Counsel
issued an amendment to complaint and on September 2, he issued second amend-
ment to complaint . The last two documents alleged violations of the above-re-
ferred-to sections of the Act as well as, in respect to Dorothy Pauline McGuire, vio-
lation of Section 8 (a) (4).
Copies of the charges and the complaint and two amendments thereto were
duly served upon Respondent, the Union , and upon Association of Classified Ad-
vertising Employees of Los Angeles Examiner, herein called the Association, an
organization alleged in the complaint to be existing in violation of the Act and
which is a party to a collective -bargaining contract with Respondent covering
certain employees of Respondent.
With respect to the unfair labor practices , the complaint , as amended , alleged
in substance that Respondent ( 1) since December 2, 1952 , sponsored , assisted,
dominated , contributed support to , and interfered with the administration of the As-
sociation; (2) on certain stated dates , in violation of Section 8 (a) (3) and (1)
of the Act , discharged 17 named persons, and thereafter refused to reinstate 16
of them , because each of said persons had joined or assisted the Union or had
engaged in other protected concerted activities , or had failed or refused to assist
the Association ; and (3 ) since December 2, 1952 , by means of certain stated
acts and conduct interfered with , restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
Respondent duly filed answers to the complaint and to the two amendments thereof
denying the commission of the alleged unfair labor practices . The Association duly
filed answers to the complaint and to the amendments thereof denying the allega-
tions that it was sponsored , assisted , dominated , or supported by Respondent or
that Respondent interfered with its administration.
Pursuant to due notice, a hearing was held on various days between October 7,
1953, and February 4, 1954 , at Los Angeles , California , before a duly designated
Trial Examiner . The General Counsel , Respondent; the Union , and the Associa-
tion were represented by counsel . Full opportunity was afforded all parties to be
heard , to examine and cross-examine witnesses , to introduce relevant evidence, to
I This term specifically includes counsel for the General Counsel appearing at the
hearing.
HEARST PUBLISHING COMPANY, INC . 395
argue orally, and to file briefs and proposed findings of fact and conclusions of
law. A brief, filed jointly by Respondent and the Association, has been received
and has been carefully considered.2
At the conclusion of the General Counsel's case-in-chief, Respondent's counsel
made numerous motions,to dismiss the complaint, as amended, in its entirety or,
in the alternative, certain portions thereof. Respondent's counsel also moved to
strike certain testimony. Some of these motions, including the allegations that
Alice Gietz was discharged in violation of Section 8 (a) (3) and (1) of the Act
and that McGuire's discharge was violative of Section 8 (a) (4) and (1), were
granted and others denied. The Association's counsel then moved to dismiss the
allegations of the complaints, as amended, with respect to the Association on the
ground, among others, of lack of proof. The motion was denied. The Associa-
tion's counsel also joined in the aforementioned motions of Respondent's counsel.
At the conclusion of the taking of the evidence, the General Counsel's motion to
conform the pleadings to the proof with respect to minor inaccuracies was granted.
Respondent's counsel and counsel for the Association then moved to dismiss the
complaint, as amended. Decisions thereon were reserved. The said motions are
disposed of in accordance with the findings, conclusions, and recommendations
hereinafter set forth.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF RESPONDENT
Hearst Publishing Company, Inc. (Los Angeles Examiner Division), is a Delaware
corporation having its principal office (outside the State of Delaware) in Los Angeles,
California, and is engaged in the publication of various daily and Sunday newspapers
including , among others, Los Angeles Examiner, Los Angeles Herald and Express,
San Francisco Call-Bulletin, Seattle Post-Intelligencer, Chicago American, Pitts-
burgh Sun-Telegraph, and Detroit Times. Respondent also publishes the American
Weekly, a Sunday magazine and comic section which is a supplement and part of
various Sunday newspapers published in certain cities throughout the United States.
The Los Angeles Examiner, certain employees of which are the only ones involved
in this proceeding, is a morning newspaper published daily, including Sunday, at
Respondent's Los Angeles plant. It has a daily average circulation in excess of
300,000 copies and a Sunday average circulation in excess of 700,000 copies. In
excess of 5 percent of the circulated copies is sold and distributed outside the State
of California.
During the 12-month period ending July 29, 1953, all the newsprint used by the
Los Angeles Examiner, consisting of more than 30,000 tons, was obtained from
outside the State of California. During the same period all the mats, numbering
in excess of 50,000, were obtained from outside the State of California.
The Los Angeles Examiner makes use of about 50,000 words obtained from the
wire services of International News Service, Associated Press, and Dow-Jones
Financial Service. It supplies one of the aforesaid wire services, which is engaged
in interstate transmission of news, with local news collected by the staff of the
Los Angeles Examiner.
During the aforementioned 12-month period, the Los Angeles Examiner published
in excess of 50 syndicated feature services, the material of which was prepared and
originated in States other than the State of California; and in excess of 30 percent
of the space in its daily and Sunday issues was devoted to advertisements, about 10
percent of said advertisements originated outside of the State of California, and a
substantial amount of all the advertisements published advertised nationally sold
products.
Upon the above-conceded facts, the Trial Examiner finds that during all times ma-
terial herein the Respondent was, and still is, engaged in commerce within the mean-
ing of the Act.
II. THE ORGANIZATIONS INVOLVED
Los Angeles Newspaper Guild, affiliated with Congress of Industrial Organizations,
and Association of Classified Advertising Employees of the Los Angeles Examiner,
unaffiliated, are labor organizations admitting to membership employees of Re-
spondent.
g The time for filing briefs was extended , at the request of Respondent's counsel, from
February 24 to March 31, 1954.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Association and Respondent 's alleged unlawful connection with it
The Association came into existence in 1938 , after a 5 -month drive spearheaded
by employees Marie F. Grewe and J. D. Richards and about 40 "old timers" then
employed in Respondent 's classified advertising department . At the same time, the
Union was campaigning to organize the same persons, viz , the classified advertising
department employees.
After 2 meetings had been held by said 40 "old timers " at the Miller (now called
Case ) Hotel , which is located across the street from Respondent 's plant, an organiza-
tional meeting was held on July 18 , 1938 , at another local hotel . There , a board of
directors for the newly formed organization was selected and a petition, which Grewe
and Richards previously had prepared , was signed by 140 persons attending said
meeting. Richards , who had been selected chairman of the meeting , then requested
that suggestions be submitted to the Association respecting "collective bargaining
with the management." The following day, because some employees of the depart-
ment involved were unable to attend the July 18 meeting, another meeting was
held. On this occasion, Grewe outlined to those present the purpose of the Associa-
tion after which 29 more employees signed the aforementioned petition. 4
The following day, July 20, the Association presented to Horn and to A . F. Logan,
the then business manager of Los Angeles Examiner, a petition signed by 168 classi-
fied advertising department employees . The petition recited the names of nine em-
ployees who had "been duly elected by us to represent us for the purpose of collec-
tive bargaining and we affix our signatures hereto as evidence of the delegation of
such authority to said committee . Please accept them as our duly authorized repre-
sentatives." -
At the July 25 association meeting, discussion was had relative to suggestions
submitted by the members regarding collective -bargaining matters to be taken up
with management and then a list of the more important suggestions was compiled.
At the August 4 association meeting the constitution and bylaws which had been
prepared by Richards and the committee,5 was approved by 99 of the 100 attending
members. Richards then spoke about the benefits which might be obtained through
collective bargaining . On August 8,_ another meeting was held for those members
who were unable to attend the August 4 meeting .e The proposed constitution and
bylaws were approved by 35 of the 40 attending members . Discussion was then
had regarding "improvements and benefits to be requested for the members."
At the August 10 association meeting the proposed collective -bargaining contract,
which Richards and the committee had prepared , was read , discussed , and approved?
Association officers were then elected.
S Much of the evidence pertaining to the , Associatson adduced by the General Counsel
related to events occurring more than 6 months before the filing and service (June 2, 1953)
of a copy of the original charge herein. At the hearing, Respondent and the Association
objected to the introduction of such evidence. The evidence objected to, however, was
received, not for the purpose of establishing unfair labor practice before December 2, 1952,
but solely for such effect it might have in elucidating and explaining the character and
quality of Respondent's alleged illegal conduct after that date. It is well settled that
Section 10 (b) of the Act allows consideration of related acts prior to the hinitation date
for the purpose of throwing light on the specific conduct within the period in issue. This
is especially so since the General Counsel stated on the record that he was not relying on
this objected-to evidence to establish any violation of the Act. See N. L. R. B. v. Luzerne
Hide & Tallow Co, 188 F 2d 439 (C. A. 3) , Florida Telephone Corporation, 88 NLRB
1429; Sun Oil Company, 89 NLRB 833. It is also well settled that to prove Respondent
had unlawfully dominated, assisted, or supported the Association or had committed any
other unfair labor practices it must be-shown that the acts and conduct relied upon oc-
curred within the 6-month period or extended into said period. Joanna Cotton Mills Co. v.
N. L. R. B., 176 F. 2d 749 (C. A. 4) ; Stewart-TVarner v. N. L. it. B., 194 F. 2d 207 (C.
A. 4) ; Superior Engraving Go, v. N. L. it. B., 183 F. 2d 783 (C. A. 7) ; Universal Oil Prod-
aots Company, 108 NLRB 68
4 The record is silent as to the exact number of persons then employed in the classified
advertising department. According to the credible and undenied testimony of Charles W.
Horn, manager of said department since 1935, the normal complement of nonsupervisory
employees employed therein is between 175 and 200.
5 Presumably , the committee designated in the petition submitted to Horn and Logan
on July 20.
0 Erioneously referred to in the Association 's minutes as the August 1 meeting.
7 The minutes of this meeting state that the proposed contract "was then submitted to"
management . When the submission actually was made is not disclosed by the record.
HEARST PUBLISHING COMPANY, INC. 397
The committee and Richards , who had been elected president at the August 10
meeting, met on ^ September 12, discussed Respondent 's counterproposed contract,
and agreed to meet with management the following day to further discuss the con-
tract submitted by Respondent . At the latter meeting, after discussion had been
had regarding "employee benefits, including tires, severance pay, and sliding scale
of earnings to salaried people, etc .," the committee unanimously agreed to accept
"the contract as finally developed ." Thereupon the parties signed a 1-year collec-
tive-bargaining contract containing a yearly renewal clause unless notice of reopen-
ing is given within a specified time. The agreed-to contract was read and discussed
at the September 26 association meeting and accepted by the members.
The above recital of the pertinent credible evidence clearly disclosed that the
Association was formed and the idea of its formation was conceived by Richards,
Grewe, and 40 "old timers" and that Respondent took no part therein . The only
evidence that Respondent had any connection with the formation of the Associa-
tion is the testimony of employee Hazel Woodland 8 who testified that she attended
the June 29 , 1953, association meeting at which Walter Hare 9 stated, among other
things, "The management and the employees got together and organized the Asso-
ciation." To refute this testimony , the Association called Dorothy Fields, Anna
Sarness,10 Patrick M. Howard , Guy Alexander , and Almon F . Stone. Each testified,
among other things, that he or she attended said meeting, heard Hare address the
meeting, but did not hear Hare make the above -quoted statement . In addition, the
Association points to the testimony of the numerous witnesses called by the General
Counsel who testified in great detail about this meeting but none of them , however,
testified that Hare made the above -quoted statement attributed to him by Woodland.
Upon the entire record in the case , the Trial Examiner is convinced , and finds, that
Hare did not state at the aforesaid meeting, in words or substance , "The management
and the employees got together and organized the Association ." In any event, even
if Hare had made said statement , and such statement had sufficient probative value
to bind Respondent , the Trial Examiner would be precluded , by Section 10 (b)
of the Act, from considering as unlawful any conduct which preceded December 2,
1952, the beginning of the statutory 6-month period of limitation.ii
Respondent and the Association have had collective -bargaining contracts from
September 12, 1938, to date,12 covering the employees here involved . Each of these
contain some form of a union -security clause. The General Counsel does not ques-
tion the validity of the contracts , the execution of which preceded the effective date
of the Taft-Hartley Act (August 22, 1947), for the obvious reason that under the
Wagner Act an employer was free at any time to enter into a contract containing a
union-security clause with any labor organization representing the majority of the
employees involved. The General Counsel, however, does argue that by entering
into the agreements of July 14, 1952,13 and of June 29 , 1953, each of which , he con-
tends, contains an illegal union-security provision , Respondent gave substantial unlaw-
ful assistance to the Association . He bottoms his argument of unlawful assistance
mainly on the facts that prior to the execution of said documents ( 1) no Board-
conducted election had been held authorizing the inclusion of such a provision; (2)
the Union was not in full compliance with the provisions of Section 9 (f), (g), and
(h) of the Act; (3) no real collective bargaining took place between management and
the Association prior to the execution of said contracts for Respondent had definitely
determined , prior to the bargaining conferences , the exact terms to be incorporated
in the agreements and its determinations were carried out without any protest by the
8 Also referred to as Maxine Woodland
0I1are was a member of the Association's board of directors selected at the July 18,
1938, meeting ; was named as a committee member in the petition submitted to Respondent
on July 20, 1938 ; was elected second vice president at the August 10, 1938, meeting ; was
elected first vice president at the September 26, 1938, meeting; was elected president at
the December 14, 1939, meeting and retained that office until lie resigned therefrom on
April 5, 1951 (resignation accepted at the April 9, 1951, meeting).
1o At the time Sarness testified (January 19., 1954) she was a supervisor.
"See Universal Oil Products Company, 108 NLRB 68, and cases cited in footnote 6
thereof
12 The contracts are dated September 12, 1938 ; May 18, 1939, March 22, 1946; April 22,
1947; September 29, 1947 (a letter-agreement changing certain paragraphs of the 1947
contract) , April 10, 1951 ; July 14, 1952 (a letter-agreement changing certain paragraphs
of the 1951 contract and republishing said contract) ; and June 29, 1953.
>s This instrument sets out the changes made in the 1951 contract and then adds, " this'
amendment now becomes an integral part of the original contract . . . dated April 10,
1951... . 11
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association's representatives; and (4) the union-security provisions of certain con-
tracts were violative of the Act.
With respect to (1) : At the time of the execution of the 1951 contract the Act
required that a union-security agreement must be authorized by a majority of the
employees involved in a Board-conducted election. Congress, on October 22, 1951,
eliminated the requirement of majority authorization but left intact (but transferred
from Section 9 (h) to Section 8 (a) (3) of the statute) the requirement that the
employer may enter into a valid union-security agreement with the majority repre-
sentative only if such representative was in full compliance with Section 9 (f), (g),
and (h). Admittedly, no such Board-conducted election had been held authorizing
the execution of the 1951 union-security agreement. Since this conduct took place
prior to the 6-month period of limitation no finding of unfair labor practice can
properly be made with respect thereto and therefore it would serve no useful purpose
to further discuss (I).
As to (2): The certificate of the Regional Director for the Twenty-first Region,
dated November 4, 1953, which was received in evidence as a General Counsel's
exhibit, shows that the Association's initial full compliance was achieved on April 21,
1950 (earliest expiration date for "f" and "g" was November 2, 1950, and for "h"
March 15, 1951); that on April 9, 1951, the Association notified the Board that,
due to the illness of Hare, the then president, new officers were being elected; that
on March 11, 1952, the Association again achieved full compliance (earliest expira-
tion date for "f" and "g" was November 2, 1952, and for "h" April 7, 1952); and that
on July 1, 1953, the Association again came into full compliance (earliest expiration
for "f" and "g" was November 2, 1953, and for "h" June 15, 1954).
By the aforesaid October 22, 1951 amendments, the Act now specifically states
that the labor organization representing the employees involved as their collective-
bargaining representative must secure from the Board at the time it enters into a
union-security agreement, or within the preceding 12 months of the execution of
such an agreement, a notice of compliance with Section 9 (f), (g), and (h).
Obviously, only the 1952 14 and 1953 agreements need discussion with respect to
the aforesaid 1951 congressional amendment. Since the record is manifestly clear
that the Association achieved full compliance on March 12, 1952, clearly within the
12-month period immediately prior to July 12, 1952, the General Counsel's conten-
tion that the Association, when it entered into the 1952 agreement, was not in full
compliance, is without merit or substance. If the 1953 contract was actually executed,
as contended by the General Counsel, on June 29,15 then it is obvious that the union-
security provision therein is repugnate to the mandate contained in Section 8 (a) (3)
of the Act for the Association was on that date out of compliance and did not
reachieve compliance until 2 days later. The record, however, does not define with
any degree of definiteness when said agreement was executed. The most it does show
is that at a lengthy meeting on June 29, which commenced about 15 minutes after
the plant's normal workday had ended, the Association's membership approved the
contract. In fact, counsel for the respective parties themselves, were noncommital
as to when the 1953 agreement was actually signed for at the hearing herein they
stipulated, after some discussion among themselves, that said agreement was signed
"on or about June 29, 1953." It is the opinion of the Trial Examiner that the evi-
dence respecting the date when the 1953 agreement was signed gives rise to no more
than conjecture that it was signed prior to the time the Association reachieved com-
pliance on July 1, 1953. Such evidence does not equal the substantial evidence
necessary to support a finding that by entering into said agreement Respondent gave
the Association support in violation of Section 8 (a) (2) of the Act. The Trial
Examiner finds no merit in the General Counsel's (2) contention.
Regarding (3): The General Counsel contended that the union-security clause in
the 1951 contract, republished in 1952 and in full force and effect at the time of
the filing and service of the original charge herein, exceeded the permissible bounds
of such clauses. He bases his argument on the ground that since the contract pro-
vided that no new employee may remain in Respondent's classified advertising depart-
ment unless and until said person makes "application for membership in the Asso-
14 This agreement was in full force and effect at the time of the filing and service of the
original charge herein:
15 The first paragraph of said instrument reads, "This contract, made * and entered
into . this 13th day of April 1953, by and between" Respondent and the Association,
and the closing paragraph states, "the said parties . . . have hereunto set their hands
and seals this 29th day of June, 1953."
HEARST PUBLISHING COMPANY, INC . 399
ciation" within a week after such employment, said contract is violative of the
proviso of Section 8 (a) (3) of the Act.16
With this contention the Trial Examiner cannot concur. The most the clause in
question does with reference to a new employee is to require him to apply for mem-
bership in the Association within a week of the commencement of his employment.
This does not mean that a new employee must be a member in good standing or
become a dues-paying member to retain his employment in the classified advertising
department. The sole requirement that the agreement imposes upon a new employee
is to apply for membership within a week after being hired. It imposes no other
obligation with respect to the employee's tenure of employment. The Trial Examiner
therefore finds the General Counsel's contention (3) to be without substance.17
Regarding (4) : The General Counsel contended that there were no real bargain-
ing negotiations with respect to any contract entered into between Respondent and
the Association. In effect, his argument runs along these lines: Whenever the Union
at some other local newspaper obtained a wage increase or other employee benefit
or when Respondent, on its own volition, desired to grant its classified advertising
department employees a wage increase or give them other benefits not then in effect,
Respondent would suggest to the Association the making of a new contract embody-
ing certain improved benefits. In support of his contention, the General Counsel
points out that new contracts were entered into by and between Respondent and
the Association even though the then existing contracts, by their terms, had not
expired.
Robert M. Mount, Respondent's business manager since late 1939,18 credibly
testified, and without contradiction, that the first contract entered into between
Respondent and the Association after he became business manager was the 1946
agreement; that the Association's negotiating committee "notified me of the opening
of the contract and we negotiated" a new agreement after discussing the terms thereof
over a period of about 3 or 4 weeks; that the 1947 contract was executed after
negotiations with a 5-man association committee; 19 that the 1947 contract was
amended by letter dated September 29, 1947, after negotiations; that said contract
was extended to April 22, 1950, by letter dated January 4, 1948, after negotiations;
that after negotiations the 1951 contract was executed; 20 and that after meeting with
the Association's negotiating committee "on several occasions" the 1953 contract was
entered into. Mount, without contradiction, credibly testified further:
in every negotiation I can remember, according to the contract the Asso-
ciation notified us they wish[ed] to open the contract. We would set a date
for a meeting, and the first thing we would do in negotiation was to ask them
what they were requesting, and we would get a list of the demands that the
committee was making. We would discuss them, some we would agree on,
some I would refuse to give them. Sometimes , after three or four meetings,
they would get what they asked for, and that was true in this last negotiation,
and the negotiation before. The Guild ( the charging party ) had a provision
in its contract at the Herald Express (a Los Angeles evening newspaper of
Respondent) that provided the week in which a holiday falls would consist of
four days.work and one day not worked. Well, we had always paid overtime
on the holiday, but we hadn't given double time on the holiday. I resisted that
through three or four negotiations , and finally they made me give in on it, be-
cause they had a good argument that the Herald had it.
Our agreement with them has been to meet Herald wage scales and working
hours, if the Herald should get more than we give in negotiations , because both
papers are owned by the same corporation , but on working conditions we have
negotiated those in our own way, but I had to give in to that, for instance.
I think in the negotiations before the last , the thing they had resisted for
quite a while was the dollar supper money , if anybody was going to be required
to work over-time in the evening, and I finally gave in on that.
I6 The pertinent portion of the proviso states, "That nothing in this Act . . . shall pre-
elude an employer from making an agreement with a labor organization . . . to require as
a condition of employment membership therein on or after the thirtieth day following the
beginning of such employment or the effective day of such agreement, whichever is
later. . . ."
17 Cf. G. W. Hume Company, 71 NLRB 533, 554.
18 For about a year prior to becoming the business manager of the Los Angeles Examiner,
Mount was labor counsel for all Respondent's West Coast newspapers.
19 The record shows that under date of March 31, 1947, the Association wrote Mount
requesting "opening" of the then existing contract.
20 By a written instrument , dated July 14, 1952 , this agreement was amended.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then there were lots of things they asked for we would not give in on. They
always asked for more money than we gave them, and we would make as tough
a deal as we could, and then if the Guild negotiated more at the Herald, out of
just common decency, I had to give it to them.
The Trial Examiner finds the General Counsel's contention (4) to be without
merit.
It is the further contention of the General Counsel that Respondent violated Sec-
tion 8 (a) (2) of the Act by permitting Katherine W. Gain 21 and Gladys Bailey
Rowe 22 to become members, and remain members , of the Association although each,
during all times material , was a supervisor within the meaning of the Act . If this
contention is meritorious then the Association must be found to be existing as the
collective-bargaining representative of Respondent 's employees in violation of the
Act.
Section 2 ( 11) of the Act defines a supervisor as:
. .. any individual having authority , in the interest of the employer , to hire,
transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action , if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment . [Emphasis supplied.]
Where the evidence fails to show, as here, that a purported supervisor possesses one
or more of the necessary statutory requisites , such a person cannot be classified as a
supervisor within the meaning of the statutory definition.
The Senate in reporting its amendment to include a definition of a supervisor
clearly showed its intention to be the drawing of a line between supervisors that
are truly management and minor supervisors having no such connections. Senate
Report No. 105 on S. 1126 said:
In drawing an amendment to meet this situation, the committee has not been
unmindful of the fact that certain employees with minor supervisory duties have
problems which may justify their inclusions in that act. It has therefore dis-
tinguished between straw-bosses, leadmen, set-up men, and other minor super-
visory employees on the one hand, and the supervisor vested with genuine
management prerogatives as the right to hire or fire, discipline, or make
EFFECTIVE recommendations with respect to such action. In other words
the committee has adopted the test which the Board itself has made in numerous
cases when it had permitted certain categories of supervisory employees to be
included in the same bargaining unit with the rank and file. Bethlehem Steel Co .
65 NLRB 284 (expediters); Pittsburgh Equitable Meter Co., 61 NLRB 880
(group leaders with authority to give instructions and to lay out the work);
Richard Chemical Works, 65 NLRB 14 (supervisors who are conduits for trans-
mitting orders); Endicott-Johnson Co., 67 NLRB 1342, 1347 (persons having
title of foreman and assistant foreman but with no authority other than to keep
production moving). See also N. L. R. B v Budd Mfg. Co., 169 F. 2d 571
(C. A. 1), Ohio Power Co. v. N. L. R B., 176 F. 2d 385 (C. A. 6); Red Star
Express v. N. L. R. B. 196 F. 2d 78 (C. A. 2); E. B. Law and Son, 92 NLRB 826.
On July 16, 1953, during the investigatory stage of this proceeding, Gain gave the
General Counsel a written sworn statement in which she stated that she has been
employed by Respondent since August 1919; that prior to her transfer in 1938 to the
mail division of the classified advertising department she held various positions includ-
ing being secretary to that department's manager; that when she was assigned to the
mail division, "Mrs. Bailey Rowe was working there. She and I have since that time
shared responsibility for being in charge of the division. We are more or less partners.
Since that time, we have hired the new employees for that division. During this
time only about 4 or 5 people have been hired for this division and we have hired
them. Management has enough confidence in Mrs. Bailey Rowe and me that we have
never had to consult with anyone higher, including Mr. Salm, Mr. Horn, or
-Mr. Mount, before hiring those we thought capable of filling any vacancy which
might exist."
Twelve days later, July 24, Rowe was shown Gain's sworn statement and asked
to subscribe to the statements contained therein. Rowe testified that she would not
21 Gain is, and from its inception was, the Association 's secretary . She also performs
some duties customarily performed by a treasurer.
22 For the past several years Rowe has been the Association's treasurer.
HEARST PUBLISHING COMPANY, INC. 401
subscribe to Gain's statement because Gain had erroneously stated therein that she
and Gain hired new employees.
Rowe admitted giving the General Counsel a written statement on July 24, wherein
she stated:
I and Mrs. Gain are in charge of the Mail Division. Mr. Horn is over us.
We have the job of supervising the work of the girls in the Mail Division. Either
Mrs. Gain or I or both of us have the responsibility of directing the work in this
Division. Those few girls who have been hired since I have been in the Mail
Division have been hired after Mrs. Gain and I recommended to Mr. Horn that
they be hired. It should be understood that Mr. Horn is the boss over all. We
actually run the department but we also do the work ourselves. We assign a
girl in our department to one job or another. We all do the same amount and
type of work.
Rowe testified without contradiction, and the Trial Examiner finds, that neither
she nor Gain is in charge of the mail division; that she and Gain act under the direction
of Horn; that what she meant when she stated in her July 24 statement that she and
Gain supervised the other employees' work is that Gain and she "open the mail and
give the girl who works on 'business opportunities' her ads, and I take my ads, and
Mrs. Gain works on 'real estate' ads; but I wouldn't say it was supervising, it is all
under the direction of Mr. Horn . I have always done routine clerical work;
that is my job"; that by her remark in the July 24 statement, "Those few girls who
had been hired since I have been in the mail division have been hired after Mrs. Gain
and I recommended to Mr. Horn that they be hired," she meant that when a person
applied for a job in her division either she or Gain would "hand the girl an applica-
tion . . . and explain what the work was in our department, and then [the application
is] referred to Mr. Horn, who has done all the hiring in our department"; and that
since her employment in the mail division in 1938, neither she nor Gain ever hired
or fired any employee.
According to the credible and undenied testimony of Horn, neither Gain nor Rowe
ever hired or fired any employee or recommended such action; that neither Gain nor
Rowe had the authorization to hire or fire.
The employee history record cards for all employees who had worked in the mail
'division since 1939 were introduced in evidence. None of these cards was signed
by either Gain or Rowe, although the history record cards received in evidence in
this proceeding of numerous, employees working in other divisions of Horn's depart-
ment each bore the signature of an "employing official."
The record is abundantly clear that neither Gain's nor Rowe's position carried with
it any duties or responsibilities of a supervisor, as defined in the Act. Furthermore,
neither of them was, nor was any other employee, informed by management that
Rowe or Gain held any supervisory status. Even if Gain and Rowe had not qualified
their written statements of July 16 and 24, respectively, wherein they indicated they
possessed supervisory authority, that evidence, standing alone, is insufficient to support
a finding that either was a supervisor within the meaning of the Act for it is axiomatic
that one's own declarations are not sufficient to prove his authority.
The General Counsel relies on a group picture which appeared in the December
1946 issue of "The Junior Examiner," a periodical published 6 to 12 times a year by
-Respondent for its "Carrier-Salesmen," in further support of his contention that Gain
possessed supervisory status. Gain is included in the group photograph. The caption
appearing under the picture reads, "C. W. Horn, Classified Director, confers with his
department heads, about a new classification which he is inaugurating." In describ-
ing the persons in the photograph the caption designates Gain as manager of the mail
division. Regarding the circumstances surrounding the taking of the group picture,
Horn testified credibly, and without contradiction:
Well, one of the photographers came in with one of the men of the Circulation
Department and said , "We would like to take a picture of you folks around
here," and I said, "Well, come on in and take our picture, who do you want?"
He said, "Well, we want some of your department heads. You just sit down
here and we will bring these other folks in for this picture," and they wanted
the department heads, as I-recall, and 1 had Bill Neale, Olga Monroe, and some
of these other folks in. This is my old office, this isn't in the office that I
have at the present time , and there were a lot of folks milling around that wanted
to get in the picture, and I can remember that Dupuy, here, saying, "Let's get
some of the old timers in the picture, too," to the photographer , not to me,
and I said, "Well, anybody that wants to get in the picture come on in and get
in the picture, let 's get it over with ," and as I recall, Kitty Gain was standing
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out with Larry Ryan, here, and he said, "Come on, get in the picture," and I
said, "Come on, everybody get in the picture," and I didn't know what particu-
lar purpose it was going to be used for. They said something about getting out
a Christmas edition, or something of that kind, or this paper, and I didn't pay
too much attention to it.
Q. Did you supply the caption which appears on this picture?
A. I had nothing to do with the caption. That was done by whoever was
authorizing the picture to be taken, probably the representative of this Junior
Examiner. As a matter of fact, they took the picture, and everybody left, and
that is the last I heard of it.
Q. Did you see the caption, or the text of the present caption at any time
before you saw the picture in the publication itself?
A. At no time, absolutely at no time. As a matter of fact, you see my title
here is incorrect. They have me down here as classified director. My title is
classified manager, and I don't use that title in relation to publicity in our own
house organs, or in our own newspaper at all, and Olga Monroe's name is mis-
spelled-it is M-o-n-r-o-e. I knew nothing about it other than the fact they
wanted to take a picture, and whoever wanted to get in the act could get in it.
There is another error in this particular caption, here. It has K. Gain, manager
of the mail division, and she was not at any time manager of the mail division.
As found above, neither Gain nor any employee of Respondent was ever informed
by management that Gain was a supervisor. The mere attachment of the appellation
of "manager" without affirmative proof of the presence of the statutory requisite,
did not convert Gain into a supervisor within the congressional definition.23
Since the amendment to the Act in 1947, it has been consistently and repeatedly
held, in cases dealing with determination of supervisors, that it was of absolute
necessity that the record clearly show that one or more types of authority set forth
in the statute be present in order to prove that a person possessed a supervisory
position. It likewise has been consistently held that the intention of an employer
to confer supervisory authority upon an employee is insufficient absent a clear
announcement by him to said employee of such authority.24
Not only does the record fail to disclose that Gain and Rowe possessed any
statutory requirements of supervisors, but the contrary is cogently revealed. Each
testified without contradiction, and the Trial Examiner finds, that she devoted her full
time to her clerical duties and that whatever requests she made of her coclericals
regarding the performance of certain tasks were of a mere routine nature which
required no independent judgment. It is thus clear that neither Gain nor Rowe
ever possessed or exercised any independent judgment or discretion in the performance
of her duties sufficient to warrant a finding that she responsibly directed the work of
other employees.25 Such directions as they may have given appear to be but mere
routine in nature.
Upon the record as a whole, the Trial Examiner is convinced, and finds, that at
no time during their employment with Respondent were Gain and Rowe supervisors
within the meaning of the Act 25
The General Counsel also contended that Respondent permitted Phil Watkins
to retain his membership in, and remain vice president of, the Association after he
had been elevated to division manager on October 5, 1953, and also permitted Anna
Sarness to retain her membership in the Association after she became supervisor
on January 11, 1954.
The undenied credible evidence shows that Watkins handed Gain a letter resigning
his official position and membership in the Association within an hour after he had
23 For example, Siouan City Brewing Company, 85 NLRB 1164, where it was held that an
employee without authority to hire, discharge, or otherwise affect that status of other
employees of his employer was not a supervisor ; Calumet and Hecla Consolidated Copper
Company, 86 NLRB 126, where It was held that group leaders without the statutory requi-
sites were not supervisors ; and Warren Petroleum Corp, 97 NLRB 1458, where It was
held that gang foremen who do not possess or exercise the power of effective recommenda-
tion or responsible direction over a crew were not supervisors.
u See for example, Continental Oil Company, 95 NLRB 358; George Knight and Co., 93
NLRB 1193; United States Gypsum Company, 91 NLRB 404.
25Bear Brand Hosiery Company, 93 NLRB 95; Weyerhauser Timber Company, 85
NLRB 1170
ae Erma Phinney, a one-time supervisor, testified that Gain attended supervisors' meet-
ings. Gain and Horn each testified that Gain never attended any supervisors' meeting.
The Trial Examiner credits, for reasons hereinafter stated, Horn's and Gain's testimony
and rejects that of Phinney.
HEARST PUBLISHING COMPANY, INC . 403
been informed by Horn on October 5, 1953, that he was to be division manager.
Sarness, the credible documentary evidence shows, handed a letter resigning from
the Association to the president of the Association on the very day she was made
assistant supervisor of the telephone sales department 27 Under the circumstances,
the Trial Examiner finds no merit to the contention of the General Counsel with
respect to Watkins' and Sarness' connection with the Association after they had
become supervisors.
The General Counsel further relies upon June E. Woodward's supervisory status
and association membership to support his contention of Respondent's domination,
support, and interference with the Association. The record, however, clearly dis-
closes that Woodward exercises none of the indicia of supervisory authority set
forth in the Act. Accordingly, the Trial Examiner finds the General Counsel's
contention with respect to Woodward's supervisory status is without substance.
The General Counsel also contended that due to section 16 of the 1938 and 1939
contracts, which reads:
Association resolutions or rules not affecting the interests of the Publisher shall
not be subject to challenge or arbitration by the Publisher; provided, when in
the opinion of the Publisher any association resolution or rule conflicts with
the said interests of the Publisher, such resolution or rule shall not be made
effective without the mutual consent of both parties hereto. Whenever the
terms of constitution, by-laws, regulations or rules of the Association are in
conflict with any portion of this agreement, the terms of this agreement shall
be paramount. [Emphasis supplied.]
the Association was dominated by Respondent because the Association has been
prevented by said section from promulgating any resolution or rule conflicting
with the interests of Respondent without first obtaining Respondent's consent. What-
ever may be said of that argument the fact remains that the emphasized portion of
said section (the objectional portion of the section, as far as the General Counsel's
argument goes) was eliminated in the 1946 contract, and thereafter, and hence
no finding is being made as to whether or not, by executing a contract containing
such a clause, Respondent violated the Act, since the complained-of conduct took
place prior to December 2, 1952, and said conduct has not been extended into the
permissible period.
In support of the contention that Respondent unlawfully supported the Associa-
tion , and otherwise violated the Act, the General Counsel points to the fact that
Respondent permitted the Association (a) to hold meetings on company time and
property; (b) to solicit members, collect dues, and deliver membership cards on
company time and property; and (c) to use, without cost, its facilities for As-
sociation's books and records and to use its equipment (typewriters, mimeograph
and other machines, stationery, etc.).
With respect to (a), the record abounds with credible evidence that the Associa-
tion, from almost its inception, held meetings on company property and ofttimes
vn company time with Respondent's permission. As to this issue, Mount credibly
testified, and without contradiction, that Respondent has, at the establishment here
involved, collective-bargaining contracts with about 15 different unions, 12 of
which are affiliated with American Federation of Labor and 3 are unaffiliated; that
since his employment as business manager in 1939, it has been Respondent's policy,
when requested, to allow any said organizations to hold meetings on company time
and property; that pursuant to the terms of some of the aforesaid contracts Re-
spondent "must allow" the unions to hold meetings on company time provided
said meetings do not interfere with the employees' work; and that other con-
tracts provide that Respondent "must let [the unions] have meetings with the per-
mission of the foreman." It is thus clear, and the Trial Examiner finds, that by
allowing the Association to hold meetings on company time and property Respond-
ent did not violate the Act.
Regarding (b), the evidence is abundant that since the inception of the Associa-
tion, Grewe, Gain, and other association officials solicited members, collected dues,
,and distributed membership cards and other association material on company
time and property. The credible evidence, however, clearly shows that no Re-
sr'The Trial Examiner is not unmindful of the fact that when Sarness was on the wit-
ness stand on January 19, 1954, she testified that she was still an association member.
Since her letter of resignation is dated January 11, 1954, the day she became a super-
visor, and there is no evidence that the date thereof is not the date when Sarness relin-
quished her association membership, the Trial Examiner finds that Sarness'. testimony of
January 19 was not in accordance with the facts and the Trial Examiner further finds
that Sarness ceased all connection with the Association on the day she became a supervisor.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
spondent official had any knowledge of that activity. In fact, Horn, Jack Salm,
Horn's assistant, and Sally May Hamilton, supervisor of the classified advertising
department's telephone salesroom since about April 27, 1953, specifically denied
knowing of such activity. The Trial Examiner credits such denials. Under the
circumstances, the Trial Examiner finds that Respondent cannot properly be charged
with violating the Act because association officials used company time and property
for soliciting members, collecting dues, and distributing association material.
As to (c), Gain testified, and the Trial Examiner finds, that for some years past
she kept certain association books and records in Respondent' s filing cabinets
located in the room in which she worked. The evidence, however, discloses that
no Respondent official knew that Gain used, or gave Gain permission to use, Re-
spondent's property for the storage of association records. Likewise, there is no
substantial evidence that Respondent knew that association officials used its type-
writers and mimeograph and other machines for association business . Insofar as
Respondent's facilities or materials were used in preparing and mailing or distribut-
ing multicopies of association posters or other literature, Respondent billed the
Association for such work and materials at regular rates. Some of these bills have
been paid and undoubtedly the others will also be paid. Under the circumstances,
the Trial Examiner finds that Respondent did not violate the Act because Associa-
tion (1) stored its books and records in Respondent's equipment; (2) used Re.
spondent's machines for association business; and (3) had Respondent perform
certain work for it.
There remains for determination the question whether Respondent violated the
Act by permitting the Association the use of company time and property while
allegedly denying the same privilege to the Union.
Under date of July 6, 1953, counsel for the Union wrote Respondent requesting
permission for the Union "to post notices of its meetings on bulletin boards in
and about the classified advertising department, and that a time and place be fixed
for the [Union's] representatives to address classified advertising employees on
your premises, and during regular working hours." Respondent did not reply.
The credited evidence reveals that all association notices were posted on Asso-
ciation's bulletin board which Respondent was obliged to permit pursuant to the
terms of its contract with the Association. The Association posted no notices
elsewhere on Respondent property. Furthermore, there is no credible evidence
in the record that any Respondent official addressed any association meeting except
concerning matters regarding the operations of Respondent's business.
Clearly the Union did not request permission to hold union meetings. It was
asking only for permission to address all classified advertising employees on com-
pany time and property. Furthermore, when it requested permission to "post
notices of its meetings on bulletin boards in and about the classified advertising
department" it was seeking a privilege not accorded the Association for the latter's
notices were confined to its own boards.
In the recent decision in Wayside Press v. N. L. R. B., 206 F. 2d 862 (C. A. 9),
the court said (p. 866) :
The act of Bailey in setting the type for the ballots without the customary
work order and the fact that no one was docked for holding the meeting in
the plant on company time do not constitute violations of the Act. As was said
in N. L. R. B. V. Brown Co., 1 Cir., 160 F. 2d 449, 454: ". . no ultimate
finding of an unfair labor practice can properly be predicated upon the sub-
sidiary finding that the respondent permitted the (Independent Union) to or-
ganize in its plant, on its time, and with the aid of its telephone and other facili-
ties. The reason for this is that there is no evidence that the (outside)
Union requested and was denied similar privileges." 28
The Trial Examiner concludes and finds that Respondent did not deny the Union
any privilege which it had accorded the Association. Accordingly, the Trial Exam-
iner finds that Respondent did not violate the Act when it did not grant the Union
"the right to post notices of its meetings on bulletin boards in and about the classi-
fied advertising department, and that a time and place be fixed for [the Union's]
representatives to address classified employees on [Respondent' s] premises , and dur-
ing regular working hours."
In view of the above findings and the record as a whole, the Trial Examiner finds
that the allegations of the complaint, as amended, that Respondent violated Section
8 (a) (2) of the Act are not sustained by the credible evidence. Accordingly, the
28 Cf. Detergents, Inc., 107 NLRB 1334.
HEARST PUBLISHING COMPANY, INC. 405
Trial Examiner recommends that the Section 8 (a) (2) allegations of the complaint,
as amended , be dismissed.
B. The discharges
Findings With Respect to the Events Immediately Preceding the Discharges
Sally May Hamilton was first employed by Respondent in 1942. She held vari-
ous positions in its classified advertising department including supervisor , for about
1i/2 or 2 years, of the voluntary salesroom . On or about April 27, 1953, Hamilton
replaced Erma Phinney as supervisor of the telephone sales division . 29 Mina
Marsland had been assistant supervisor of the telephone salesroom under Phinney
and remained in the same position when Hamilton took over.
When Horn requested Hamilton to take over Phinney's supervisory job she
was reluctant to do so because, as she told Horn, she was sure to run into trouble
with the girls employed in that room. Hamilton testified , and the Trial Examiner
finds, that her reluctance was based upon the fact that under Phinney's regime a
certain small group,30 under the leadership of Marsland , "didn 't want a supervisor.
They wanted someone that they could run and do as they pleased"; that under
Phinney, the Marsland group enjoyed many special privileges , that the other girls
in the room resented these privileges , such as reporting for and leaving work early,
being given only to a favored few; and that she feared these favored few would be
antagonistic to her if she became their supervisor for, in order to properly run
the room, she would have to take away the special privileges they had enjoyed under
Phinney. Hamilton further testified , and the Trial Examiner credits her testimony,
that when Horn suggested to her, during his talk with her before she accepted the
telephone salesroom supervisory job, discharging these favored few, she replied,
"I [hate] to cause the girls to lose their jobs, maybe I [can] work it out," adding
that if she could not, she then would discuss with him the advisability of discharging
the intractable employees ; and that she took the proffered supervisory job after Horn
assured her of his full cooperation.
Hamilton 's fears of encountering hostility from the so-called Phinney or Marsland
group became a reality immediately upon her assuming the job as telephone sales-
room supervisor . As Hamilton credibly testified , from almost the very day she took
over Phinney's supervisory job, she "went through `holy hell"' because she imme-
diately denied to all the special privileges Phinney had granted to her "favorites."
The so-called Phinney or Marsland group's hostility to her made her, as Hamilton
credibly testified , "so unhappy that I went [to] Mr. Horn and told him that I
couldn't get the cooperation from the girls in there, that I felt I should have, and I
would like my other job back" and that Horn replied , "Sally, we want you in
there, you are a good supervisor, we want production , we want the girls in on time
and we want them out on time. As we discussed before you went in there, there
would be possibly lots of changes you would have to make." Despite her plea to
be relieved of her supervisory job and to be returned to her former job, Horn, the
record indicates , induced Hamilton to remain as telephone salesroom supervisor.
According to Grewe's credible testimony , Marsland asked her on May 18, 1953, to
speak to a few of the girls; that when she asked Marsland "who the girls were, and
what it was about," the latter replied , "You will find out"; that in response to Mars-
land's inquiry, "Where can they meet you?"-she said, "I will have to find some place,
[but] it will have to be after office hours"; that she then obtained permission from
"the man across the hall" to use the room in the circulation department which the
Association occasionally had used to hold meetings ; that when "the man across the
hall" asked her, "Are you having . . . an Association meeting," she replied, "No
just a [meeting with ] a few of the girls that I want to talk to"; that when Marsland
again called her on the interoffice telephone and inquired if arrangements had been
made "where the girls could talk" to her, she replied in the affirmative.
Grewe specifically denied Marsland 's testimony that Grewe went to Marsland on,
May 19, and stated that she" "had made arrangements to have a meeting that after-
noon at 5:30, that it would be held in a room to which [Grewe ] alone had a key, or
if the girls preferred , it could be held in the drugstore across the street [from
Respondent 's plant] . . . [that ] it would be a good idea if a meeting of the girls,
29 Phinney was appointed supervisor of said division on December 8, 1952. Upon being
replaced as supervisor by Hamilton , Phinney was transferred to the outside salesroom at
the same salary.
iw Namely, Florence Cooper, Coy Flanagan , Beverly Harris , Joan Barry , Margaret Nas-
lund, Fay McCleary , and Rita Campo These seven , Marsland , and Phinney were among
those allegedly discriminatorily discharged.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves, were held previous to that meeting in order to work out a more concrete
agenda that could be presented at the evening meeting so that she (Grewe) could
in turn give it to the grievance committee and to management." Grewe also denied
that Marsland inquired of her on May 18, "if the girls could have an Association
meeting"; that she purportedly replied, "Well, what they want a meeting for?" to
which Marsland allegedly responded, "Well, Marie, you must know by now why the
girls want a meeting, you know they have been unhappy, and they want a meeting
with you to see if we can better conditions in here," to which she supposedly replied,
"Well, I will see what I can do, and I will let you know in the morning." The Trial
Examiner was favorably impressed with the candid, sincere, and frank manner with
which Grewe testified. Marsland did not so impress the Trial Examiner. Accord-
ingly, the Trial Examiner credits Grewe's denials of the statements attributed to
her by Marsland and finds Grewe's version of what was said by and between her
and Marsland on May 18 and 19, 1953, to be substantially in accord with the facts.
Directly across from Respondent's establishment there is a drugstore which is
frequently visited at lunch hour, "coffee breaks," and other times by Respondent's
employees. At about 12:35 p. in. on May 19, about 20 or 25 telephone salesroom
employees gathered at the drugstore in a room about 27 by 19 feet in size. Located
in this room are about 8 or 10 booths along 2 walls. Each booth accommodates a
table for four persons, and each booth is separated by a wooden partition. The
main topic discussed by most of the attending employees centered about Hamilton;
her constant policing of the telephone salesroom, her purported "concentration
camp" method of handling the employees under her supervision, and 'her alleged
gestapo method of patrolling the telephone salesroom 31
The Trial Examiner finds, upon the entire record in the case, that the so-called
drugstore meeting was held primarily for the purpose of arriving at a method to
remove Hamilton as telephone salesroom supervisor; that the other grievances brought
up or discussed thereat were only incidental to this main purpose; and that it was
not, as contended by the General Counsel, an association meeting or a gathering for
the purpose of preparing an agenda for an association meeting to be held later in
the day. These findings are buttressed by the following: Marsland, a supervisor 32
and hence not eligible to be a member of the Association, was the instigator of the
drugstore meeting as well as the meeting which was to be held with Grewe later in
the day; that Marsland never advised, nor, as far as this record reveals; did anyone
else advise the 100 or more persons employed in the other divisions of the classified
advertisement department, the vast majority of whom were association members,
of the proposed drugstore meeting or of the proposed Grewe meeting; 33 that Mars-
land resented Hamilton becoming telephone salesroom supervisor; that Marsland,
herself, aspired to that supervisory position and so expressed herself to Grewe,
according to the latter's undenied and credible testimony; that Grewe was not invited
to the drugstore meeting and did not attend it although at that time she was the
Association's president, that no other officer of the Association was notified that there
was going to be a meeting at the drugstore during the luncheon period on May 19,
or that there was going to be another meeting later that day; that Grewe became
aware of the drugstore meeting, but not its purpose, when she, perchance, went to
the drugstore a few minutes before the end of the luncheon period for "a bromo
;seltzer and a glass of juice."
The drugstore meeting broke up within a few minutes after Grewe appeared at
the entrance of the room in which it was being held. Some witnesses testified that
the meeting concluded when Grewe appeared at the entrance and announced, in
effect, "Let's get back to work, it is almost one o'clock." Grewe testified, and the
Trial Examiner finds, that she was unaware of the meeting; that on the way to pay
81 This meeting has been described by various witnesses as being a gather lug of "a bunch
of women all talking at once" with no one "heading the meeting or gathering" ; and that
it was strictly a "gripe session" concerning Hamilton and her supervision and incidentally
about other grievances such as the unsanitary condition of the ladies' restroom, the unsat-
isfactory ventilation system, new employees' starting pay, the lack of uniformity of line-
age pay, the lack of association activities, and the Association's failure to properly en-
force the terms of its contract with Respondent.
32 The General Counsel contended that Marsland was not a supervisor within the mean-
ing of the Act. This contention is wholly without merit and is in direct conflict with his
contention that Anna Sarness, who became assistant supervisor of the telephone sales-
room on January 11, 1954, the same position formerly held by Marsland, was, in fact, a
supervisor within the statutory definition.
33 The meeting, which Grewe called for 5: 30 p. in. on May 19, was not held because
Grewe was the only person who appeared at the meeting place.
HEARST PUBLISHING COMPANY,' INC. 407
her check she heard Sue Brenner's voice and she "looked into the room," saw a
group of her coworkers, and after being asked where the evening meeting would
be held and after replying "across the hall in the Circulation Room," she walked back
to work alone.
Fay McCleary testified that at about the conclusion of said meeting she heard Coy
Flanagan ask Grewe, "why do we have to hold a meeting here in the drugstore, we
have nothing to hide or be ashamed of, why can't we have our meeting on [Respond-
ent's] premises ... why do we have to come to this drugstore to hold a meeting";
and that Grewe replied, something to the effect, that she "will make arrangements
for the room across the hall." McCleary further testified that Flanagan and Grewe
returned to work together; that she walked directly behind them on her way to the
office; and that she heard Flanagan and Grewe talk about the Association's contract
with Respondent and certain other association matters. Grewe denied walking from
the drugstore with Flanagan or talking to Flanagan en route to the office. Flanagan
did not testify. The credible evidence is manifestly clear that Grewe had made
arrangements to hold the evening meeting prior to the drugstore meeting; that she
had advised Marsland prior to the drugstore meeting that the evening meeting would
be held in the circulation room. Accordingly, the Trial Examiner finds that Grewe
did not tell Flanagan or anyone else at the drugstore meeting she would make ar-
rangements to hold a meeting in the circulation room, but that she told those inquir-
ing that the evening meeting would be held in the circulation room. The Trial
Examiner further finds that Flanagan and Grewe did not engage in any conversation
on their return to work after the drugstore meeting.
Hamilton learned of the drugstore meeting shortly after the luncheon hour when
some of the girls returning to work told her that they had not attended the-noon-
hour meeting and asked its purpose. Hamilton, at that time, did not know the purpose
of the meeting and hence was unable to aid the inquirers.
As found above, the meeting Grewe had scheduled for 5:30 p. in. was not held.
After waiting for about 15 minutes at the appointed place-for the telephone sales-
room employees to appear, and none of them appearing,34 Grewe went to Hamilton
and asked if the latter would go across the street the next morning and have a cup
of coffee so she could talk to the girls. -
Shortly after the aforesaid conversation with Grewe,35 Hamilton went to Horn,
who had just returned to his office after being away therefrom most of that after-
noon, and told him what she had learned that'afternoon about a conspiracy to oust
her as supervisor. According to Horn's credible testimony, which, in the main, is
corroborated by Hamilton, the following ensued: Hamilton, in words or substance,
stated, "I have learned that some of the girls have gotten together in the drugstore
to oust me as supervisor of the telephone room"; that he replied, "This seems to be
part of the pattern of hostility which has been developing here in the department
against you since you took over as supervisor in the telephone room"; that he then
"undoubtedly" asked Hamilton if she knew who was present at the get-together and
what transpired thereat; that Hamilton did not go into detail about the drugstore
meeting, except to state that its purpose was "to get her fired as telephone super-
visor"; that she said she did not know the identity of all attending but did know
that Grewe was present and Grewe was planning another meeting for that evening;.
that according to "his best recollection" Hamilton also stated that the telephone
salesroom employees "were going to try to have a petition signed to have her re-
moved"; that she was "upset and disturbed" because the girls had approached Mrs.
Grewe for another session that evening, "the general purpose" of which "was to do
everything they could do to remove her as telephone supervisor"; that Grewe had
requested that the next day she go across the street for a cup of coffee while Grewe
spoke to the telephone salesroom girls; that Hamilton then demanded to know whether
she or Grewe was to run the telephone salesroom; and that his conversation with
Hamilton concluded when he requested Hamilton to send Grewe to him.
As soon as Grewe came into his office, according to his credible testimony, Horn
told her that her request that Hamilton "go across the street the next morning for
a cup of coffee while she held a meeting with all the girls in the [telephone sales] room
34 Grewe credibly testified that during the course of the afternoon some of the girls told
her that they would not be able to attend the meeting; that she said to them, "You are not
unhappy on your job, then, are you?"; and that when they replied they were not, she'
said, "I am so glad you are not coming" or "Please don't bother to come "
35 Contrary to the General Counsel's contention, the Trial Examiner is convinced that
on the afternoon of May 19. Grewe and Hamilton had two conversations. The conver-
sation related immediately above was the first one.
379288-56--vol. 113-27
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without consulting her supervisor , or with me" had incensed him; and that "every
supervisor we have had around here for [the past] several years has complained [that
you have] . . . taken over some of" the supervisor's authority. Horn credibly testi=,
fled further that Grewe then stated that some of the girls in Hamilton 's department
were very unhappy with Hamilton , that the drugstore meeting was "a sort of culmina-
tion about their bitterness about" Hamilton, that she had advised the girls, rather than
see them go off "half-cocked," they "have a little session" in order to iron out the
matter ; that he thereupon said , "I do not accept that explanation as being within
your province of action , and I am extremely disappointed with you . . ." to which
remark Grewe retorted, "I thought I was being helpful," adding, something to the
effect, "but if that is the way you feel there is nothing much I can do about it"; and
that he then advised Grewe that she had exceeded her authority when she asked
Hamilton to go across the street while she met with the girls and that Grewe 's presi-
dency of the Association did not give her the authority to order Hamilton to leave the
department.
Contrary to Respondent's and the Association's contentions, the Trial Examiner is
convinced, and finds, that 10 telephone salesroom employees, including Rita Campo,36
met at the Campo home on the night of May 19. There after discussion, in which
Campo's husband, Joseph L. Campo, participated, was had regarding the desirability
of joining the Union, the 11 employees signed union membership applications.
Hamilton did not learn the details of the drugstore meeting until the day after it
had been held. Her first informant was Sue Brenner who gave Hamilton the names
of 11 girls,37 who, Brenner stated, were the ringleaders at the meeting. Brenner then
told Hamilton that the prime purpose of the meeting was to oust Hamilton as super-
visor. Brenner also told Hamilton on that occasion that Marsland and her clique
were at the bottom of the conspiracy to oust her as supervisor. On later dates,
Hamilton received similar information from Judy McPeak, Catherine Miller, and
other employees of the telephone salesroom.
Phinney, Grimm, McCleary, Harris, and Campo, using Phinney's home as head-
quarters, spent practically all Saturday and Sunday, May 23 and 24, soliciting mem-
bership for the Union from among the employees in every division of the classified
advertising department. On Sunday, Marsland joined the above-mentioned five per-
sons in their quest for new members.
The complaint, as amended, alleged that Respondent discriminatorily discharged
17 classified advertising department employees.38 Respondent's answer denied the
allegation. The discharges will be discussed seriatim.
Marie F. Grewe had been in Respondent's employ for upwards of 25 years when
she was discharged by Horn on May 22, 1953. The evidence, most of which is undis-
puted, relating to her discharge is as follows:
On May 20, Horn informed his immediate supervisors, Business Manager Mount
and Advertising Director Bartlett. regarding the drugstore meeting, Hamilton's report
of the matter, and Grewe's request that Hamilton leave the telephone salesroom so
Grewe could talk to the girls employed therein. Horn also told Mount and Bartlett
on that occasion he felt that Grewe was implicated in the move to oust Hamilton or
was otherwise engaged in "the general action and attitude against" Hamilton; that
Grewe was not "supporting the supervisor [of the telephone salesroom] as she should"
have; that Grewe "was going with these girls who had a hostile and defiant attitude
toward the supervisor," and he "felt one way we could correct the situation in the
department so far as everyone was concerned" was to "make an example" of Grewe;
that he thought Grewe should be fired 39 because she, over a period of years, "devel-
oped a complex about her importance in the department" which was not advantageous
to management nor was Grewe's conduct , although intended to be helpful to manage-
ment, conducive "to getting the best work and the best effort out of the girls." The
following day, Mount and Bartlett informed Horn that they agreed that Grewe should
be discharged.
3e Namely, Parker, Grimm, Harris, Strong, Flanagan, Cooper, Phinney, Woodland, and,
McCleary
37 Namely , Cooper, Grimm , Phinney, Flanagan, Barry , Naslund, Harris , Rebenstoff, Tash,
McCleary, and Campo
38 The case of Alice Gietz was dismissed at the conclusion of the General Counsel's case-
in-chief.
39 Horn was not required to consult with anyone before discharging any classified adver-
tising department employee. However, in the case of Grewe, because of her long tenure
of employment , he thought it desirable to obtain the opinions of Mount and Bartlett before
taking any disciplinary action,
HEARST PUBLISHING COMPANY, INC. 403
At about the close of business on May 22, Horn'called Grewe to his office and
there, according to' Grewe's credible testimony, which is in substantial accord' with
Horn's version, the following, in part ensued:
Mr. Horn said, "Marie, I think we have come to the parting we have come to
the parting of the ways." I gasped and said, "What are the charges, Mr. Horn?
I tried to be calm because he was so upset. He said, "Well, I am so disappointed'
in you, you have certainly not cooperated with Sally Hamilton, you have assumed'
superior attitudes in there, you have assumed responsibility for things that are-
not your business. Mrs. Hamilton is the supervisor in there; you are not. When
it,comes to giving orders, Mrs. Hamilton will give the orders. You haven't
played the right idea of cooperating with management. I expect Sally Hamilton
to be the manager in there, you have overstepped your bounds. . .. I am
retiring you."
Grewe further testified, and the Trial Examiner finds, that she noticed that the
check which Horn handed her, which included her severance pay,40 had marked
thereon "retired"; that after insisting that she was not being "retired" but being fired,
Horn changed the notation to "released" that she then "scribbled" out her resignation
as president of the Association and Horn, at her request, had the resignation typed;
and that after saying, "I am sorry this had to happen, Mr. Horn," she left Horn's
office, put her letter of resignation in a box on the desk of the Association's first vice
president, and left the building.
The Trial Examiner finds that the credible evidence, as epitomized above, is insuffi-
cient to warrant a finding that Grewe was discharged as alleged in the complaint,
"for the reason that [she] joined or assisted the Union or engaged in other con-
certed activities protected by Section 7 of the Act, or because [she] failed or re-
fused to assist the Association and for the purpose of encouraging and discourag-
ing concerted activities." The Trial Examiner finds that Grewe was discharged on
May 22, 1953, because Horn honestly and sincerely, although erroneously, believed
that Grewe (1) had overstepped her authority in "ordering" Hamilton to go across
the street for coffee while she spoke to telephone salesroom girls; (2) had not co-
operated with Hamilton; (3) was one of the instigators of the movement to have
Hamilton removed as supervisor; and (4) because of the foregoing, was not a good
employee. Accordingly, the Trial Examiner recommends that the allegations of the
complaint, as amended, that Grewe's discharge was violative of the Act be
dismissed 4'
Florence Cooper was first hired as a telephone solicitor on or about May 9, 1951,
and retained that job until her discharge on May 22, 1953.
Cooper attended the drugstore meeting of May 10 and also attended the meeting
at the Campo home that night where she signed a union membership application.
Cooper engaged in no other union activity except for two conversations with a
coworker, Jo Castro, on May 20, 21, or 22 during which she spoke in favor of the
Union and against the Association.
Cooper testified that about 10 minutes before quitting time on May 22, Hamilton
called her to the front of the telephone salesroom and said a few changes were
going to be made "and here is your voucher, run down and cash it before the
cashier's office closes"; that Hamilton's statement "stupefied" her; that when she
asked Hamilton what the latter meant by a "few changes," Hamilton replied, "We
are going to rearrange territories, rush down and cash your voucher"; that after
cashing her voucher, she returned to her desk and when Hamilton came through her
aisle she pushed back her chair and held Hamilton in the aisle, and asked Hamilton
what was the real reason for her discharge, that-she asked that question because
she had noticed on her separation slip there was a notation thereon that she was
being discharged for unsatisfactory work; and that in reply to her question, Hamil-
ton patted her on the shoulder and said, "We are rearranging territories."
Cooper further testified that the following morning, May 23, she telephoned
Grewe, after telling Grewe of her discharge and stating she wanted to protest to
the Association, inquired with whom she should file her grievance; that she made-
this inquiry of Grewe because she had heard the previous night that Grewe also
had been discharged; that Grewe replied that the grievance should be filed with
Phil Watkins, the Association's first vice president, who undoubtedly would become
4a The. check amounted to $4,320 92, after the usual payroll deductions had been made.
S1 About 2 weeks after her discharge, Grewe wrote Respondent seeking reinstatement.
After conferring with, Mount and Horn, Grewe was reinstated on'June 22. On that day,
Horn publicly stated to the employees that he "had been mistaken" about Grewe and was
"glad to have" her back on the job.
410 DECISIONS'- OF NATIONAL LABOR RELATIONS BOARD
president; that when she asked Grewe why Grewe had been fired, Grewe said; to
quote Cooper, "Well I had been told by Mr. Horn that I was too much of a
cushion, that the girls were leaning on me too much and we did not need that sort
of thing around here"; that Grewe also said that the reason she did not report
for work on Wednesday morning, May 22, was due to the fact that Horn on the
evening of May 21, to again quote Cooper's testimony regarding Grewe's remarks
to her, had "used such language as I have never heard used before, and I just
could not return to work that morning"; that she then told Grewe she had already
become a union member and inquired whether Grewe desired to join; that Grewe
said that she did not but would help the cause and then gave her "names of vari-
ous people in the Examiner to contact for further help"; that Grewe further said,
to again give Cooper's versions of Grewe's statements, "I wasn't really surprised that
you were fired, Florence, because while I was in [Horn's office the previous Tuesday
evening] Mr. Horn said . If Florence Cooper and the rest of the girls don't
like Sally May Hamilton, they are going to get it the same way, they will all go
out"', and that when she asked Grewe if Horn, at the Tuesday evening Horn-
Grewe conference had inquired about the purpose of the Tuesday evening 5:30
meeting, Grewe replied in the affirmative, adding that when Grewe said she had
called "a small association meeting," Horn said, "Not without my permission .,. .
I want to know what it is all about before you have a meeting."
Regarding the aforementioned telephone call of May 22, Grewe denied that
she told Cooper, in words or substance, during the telephone conversation, (1) Horn
told her she was "too much of a cushion, that the girls were leaning on me too
much, and that they did not need that sort of thing around there"; or (2) "what
I had gone through in his [Horn's] office you would not have wanted he
just used language such as I have never heard used before, and I just could not
return to work the following morning"; or (3) "1 wasn't really surprised that you
were fired, Florence, because while I was in there, Mr. Horn said, using your name,
if Florence Cooper and the rest of the girls don't like Sally Hamilton, they are
going to get it the same way, they will all go out, so I wasn't surprised that
you were fired since he mentioned your name"; or (4) Horn had asked her the
purpose of the Tuesday meeting and that she told him it was just a little gathering
with the girls, to which Horn retorted, "not without my permission . . . I want to
know what it is all about before you have any meetings."
Crewe testified that Horn, at the May 19 conference, did not use ungentlemanly
language, did not make the statement she was too much of a cushion, did not
ask the purpose of the Tuesday meeting, did not mention Cooper's name or the
name of any other employee, and that she did not tell Horn about any association
meeting.
Regarding the above-referred-to May 23 telephone conversation with Cooper,
Grewe testified that after Cooper had asked if she were shocked when Horn fired
her, the conversation proceeded as follows:
I said, "Yes, I was." She said, "What are you going to do," and I said, "Noth-
ing, I am going to forget it." She said, "I was surprised that I was let out,"
and I said, "Flo, I wasn't surprised that you were let out, you have been pretty
noisy-over there," and she said, "Yes, I guess I did shoot my Irish mouth off
too much, I will just get another job . . . Did you tell Mr. Horn about the
drugstore meeting," and 1 said, "I did not."
Upon the entire record in the case, the Trial Examiner credits Grewe's denials
set forth above and finds her version of said telephone conversation to be in sub-
stantial accord with the facts.
Hamilton testified that she told Horn, either on the night of May 21 or during
the morning of May 22, that her investigation revealed that Cooper and Marsland
were ringleaders of the campaign to oust her as supervisor and therefore she would
like to fire Cooper because by so doing "we would either stop [the oust movement]
or bring more of it" into the open.42 Hamilton further testified that she decided to
u Horn credibly testified that when Hamilton told him on May 20 21, or 22 that Cooper
and 1 or 2 other girls were ringleaders in the ouster movement and then requested per-
mission to immediately discharge Cooper, he told Hamilton "she could dismiss anyone in
the department who was not loyal to her, faithful [in] productive cooperation,-. . and
If there were any individuals in the room which she felt were trying to humiliate her, or
block her work in the telephone room, . [ she could ] dismiss them, or recommend their
dismissal ." Horn also credibly testified that over a period ,of 6 months or -longer he had
been receiving , reports from , 3. of his assistants recommending the, discharge of Cooper but
HEARST, PUBLISHING COMPANY, INC .' ' , . 411
have Cooper discharged because, in addition to being a ringleader -of the ouster
-movement , Cooper was an undesirable employee in that Cooper was discourteous
and hostile to her; that despite the fact that she had spoken to Cooper many times
about disturbing her coworkers , about her unsatisfactory work, and about creating
hurtful conditions in the department which caused her fellow workers to complain
,that they could not do their work properly, Cooper continued this disturbance; 43
that when she gave Cooper some additional "leads," the latter made only a few
telephone calls with respect to them and "then began to play again "; and that on
one occasion she heard Cooper say to some girls that they were "just plain damned
chicken" because they would not join the campaign to oust Hamilton as supervisor.
Upon consideration of the testimony of Cooper , Hamilton, and Grewe, the
Trial Examiner credits the versions of Hamilton and Grewe and rejects that of
Cooper. In crediting the testimony of Grewe and Hamilton, the latter's being sub-
stantially supported by Horn 's credible testimony , the Trial Examiner was particularly
influenced by the fact that their testimony , both on direct and on cross-examination,
was consistent , clear, and definite . Neither attempted at any time to give her
testimony new direction or emphasis to meet situations developed on cross-
examination or as a result of afterthoughts brought to mind by questions of counsel.
The same cannot be said of Cooper.
Upon the record as a whole, coupled with the fact that there is no credible evidence
that Horn , Hamilton, or any other managerial official of Respondent 45 had any
knowledge that Cooper had signed a union membership application or had engaged
in any other activity in support of the Union prior to her discharge , the Trial
Examiner finds that the allegations of the complaint that Florence Cooper's May 22,
1953, discharge was violative of the Act is not supported by substantial evidence.
The General Counsel's contention that Cooper 's discharge was based in whole
or in part on her participation in the drugstore meeting, and that such participation
was protected concerted activity is without merit or substance . As found above,
the sole purpose of the drugstore meeting was to further the campaign which Marsland
and others had started to oust Hamilton as supervisor . The mere fact that other
matters about which the employees had "gripes" were discussed does not bring the
employees ' activities within the scope of statutory protection . Conduct is not neces-
sarily removed from lawful disciplinary action by an employer merely because such
conduct arises in the context of concerted activity.46 The mere fact that an employee
engages or attempts to engage in concerted activity does not, however, in all cases
and under all circumstances afford him absolute protection under the Act. Where
an employee in asserting his right to act in concert with others also engages, as
Cooper did , in other conduct which exceeds the necessary and reasonable bounds
of concerted action, he does not remain immune from disciplinary action therefor.
The test in each case must be whether it is the other conduct or the legitimate
concerted activity which motivates the disciplinary action . Had there been nothing
transacted at the drugstore meeting other than the "gripes " about the unsanitary
conditions of the ladies ' restroom, the varying wage scales, the inadequacy of the
ventilation system , and so forth , the contention of the General Counsel would
possess merit, and a finding would be justified that Respondent had violated the Act
he told each, "Take it easy, see what you can do to change her attitude ," but when Hamil-
ton informed him of Cooper 's participation in the ouster movement he gave Hamilton per-
mission to discharge anyone she felt was not cooperating with her.
"Hamilton described some of Cooper 's antics as follows:
She (Cooper ) would open her desk drawer and set her headset on the side of the
drawer, and sit at her desk and wisecrack , read the paper , talk, laugh or play, and
make remarks about me to the girls loud enough for me to overhear them as I would
go up and down the aisles or around , or she would talk to girls over the telephone
about me, . . loud enough that I could hear.
"The portion of Hamilton ' s testimony respecting Cooper's conduct and unsatisfactory
work , and the like remains undenied except that Cooper testified that at no time during
the 3 days immediately preceding her discharge were complaints made to her about her
work.
's Obviously , Marsland knew of Cooper 's union activity but it is safe to infer, which the
Trial Examiner does, that Marsland did not impart that knowledge to any other official
of Respondent . The Trial Examiner makes the sane inference with respect to any other
employee who engaged in activity in behalf of the Union or who displayed sympathy toward
Its cause.
"See Mackay Radio and Telegraph Company, Inc., 96 NLRB 740; Titan Metal Manu-
faoturing Company, 99 NLRB 872.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discharging Cooper for attending and actively participating in said meeting.
But there is present - in the record of this case other factors which disclose that the
actions of Cooper and others passed beyond the confines of legitimate and protected
concerted activities and became conduct for which Respondent could , with impunity,
punish them 47 Accordingly , the Trial Examiner recommends that the allegations
of the complaint , as amended , with respect to Florence Cooper be dismissed.
Further, the fact that an employee actively participates in a union 's campaign to
organize does not immune him from being discharged for cause.48 -
Erma Phinney was first employed by Respondent in May 1951 , and on December 8,
1952, became telephone salesroom supervisor which position she held until replaced
by Hamilton on or about April 27 , 1953. Phinney then became a telephone solicitor
in the outside salesroom.
Phinney testified that she signed a membership application at the Campo home on
May 19; that on May 22 and 23, in the presence of Violet Grimm , McCleary, Mars-
land, Beverly Harris , and Margaret Naslund, telephoned , from her home, everyone
she "could think of" then employed in the outside sales and inside sales divisions of
the classified advertising department , including Phil Watkins , the then Association's
-first vice president , and asked each to join the Union ; that Watkins refused to join
and ended the conversation saying, "Why don't you just forget you even called me,
kid?"; that she reported for work at about 8:20 or 8:30 on Monday and did not see
Watkins or Jack Salm, Horn's assistant , at their respective desks; that about 5
minutes to 9 she saw Salm come out of Horn's office immediately followed by Watkins
who whisked in the opposite direction from which Salm was walking , go down toward
Katherine Gain 's office, turn , and come back to his desk, "like he was just coming
in to work"; that while "watching Watkins hurry around " she noticed Salm standing
at the little gate which divides Salm 's desk from those of the salesmen; that Salm
then pointed his finger at her and screamed , "Erma Phinney, stand up" and "Come
here"; that when she reached the place where Salm was standing , he said , "Follow
me" and both of them went into Horn's office ; that when they entered Horn's office,
Horn said, "Well , Erma, I hear you have been a very busy little kid over the weekend";
that she said, "That is right, Mr. Horn, but I am always busy," to which Horn re-
marked, "Maybe you were busier than usual this weekend ," and she replied, "Oh, I
don't know"; that then Horn said, "Well , as of this morning , you and I have come
to a parting of the ways ," and then handed her her pay voucher , which had noted
thereon "terminated "; that when she asked the reason for her termination, Horn
said "No production"; and the following then transpired:
I said, "No production ? Why, Mr. Horn, I am 337 lines over the last week."
He looked over at Jack (Salm), and said , "Jack , is that true?" and Jack said,
I don 't know." He looked back at me and said , "How do you know," and I said,
"Because I figured it Friday afternoon , . . . Mr. Horn, that isn't a true state-
ment. I am up over production , you have got to tell me something else, what
is the reason."
Jack spoke up and said , "Well, Erma, you have been very unhappy on your
desk," and I said, "But that isn 't true, . I am divinely happy, I love my desk."
Mr. Horn said , "I suppose you know Florence Cooper is no longer with us,"
and I said I had heard that, and "What about Marie Grewe, you fired her, too,
didn't you? What is going on around here?"
He said, "Well , Miss Cooper is just no longer with us."
I said, "Boy , it sure knocks me for a loop. Miss Cooper is really a good
worker."
He said , "That is right, maybe she , too, worked too hard."
So I said , "Well, I sure feel bad about this, I love my job , and I thought I
was doing a good job, too."
He said, "That is all, that is all, we have got to go; get up."
Regarding the May 25 events testified to by Phinney, Horn testified that upon
arriving at his office that morning at his customary time of shortly before 8:30, he
called in Salm to discuss with him "the reports and plans for the day"; that while they
were so engaged , Watkins came to his door and he invited Watkins to enter; that
Watkins asked if the Association might hold a meeting ; that when he asked "some
question as to what the urgency was" for holding a meeting , Watkins said that he
47 See Joanna Cotton Mills Co. v. N L. R. B., 176 F. 2d 749 (C. A. 4) ; Maryland Drs-
dock Company v. N L R B , 183 F. 2d 538 (C A. 4).
48 N L R B. v. Dixie Terminal Co., 210 F. 2d 538 (C. A. 6) ; West Ohio Gas Co. v.
N. L. R. B., 172 F 2d 685 (C. A. 6) ; Maryland Drydock Company v. N. L. R. B, 183 F: 2d
538 (C. A. 4).
HEARST PUBLISHING COMPANY, INC. 413
wanted such-a meeting "because of Grewe's resignation and officership of the Asso-
ciation" he replied, "Certainly, you go ahead and have your meeting after I have
[my meeting of the sales force], I will have a brief meeting this morning, and as
soon as my meeting is concluded, you can take over and have your meeting," where-
upon Watkins left his office; and that Watkins was only in his office on that occasion
for a minute or two.
Horn further testified that about 10 o'clock that morning, after the sales force
meeting and after the Association had held its meeting, he called Phinney into his
office, or had someone ask her to come in, and in Salm's presence, the following
ensued:
I said, "Erma, we have come to the parting of the ways, and I regret very
much to have to tell you that I am dismissing you this morning."
She said, "For what reason?"
"Well," I said, "I think that you would be happier, and I am sure we would,
if you were no longer in the employ of the Los Angeles Examiner. You have
been not too happy since you were removed as supervisor of the telephone room.
We gave you every opportunity to reconstruct your situation here in the depart-
ment . I did not reduce your salary even though I demoted you as supervisor.
I gave you the best territory in the room so that you would not have to feel to
any degree, ashamed of your position in the department, and ever since you
have been in there, your attitude has been one of antagonism, and lack of
cooperation. So far as your selling work is concerned, it is pretty good. As a
productive sales person, I think you have a lot of capabilities, but I am very much
afraid that you can't get over your antagonism toward me and toward others in
the department, because you are no longer supervisor of the telephone sales
department, and I think for the best interests of the department, and particularly
of the telephone sales department, it would be better if you found employment
elsewhere," and I said, "I regret doing this, I wish you luck, here is your voucher,"
and she started to expostulate a bit about her production, and I told her that
I had no complaint to make about that, but that I felt in my own mind that
she could no longer be part of the Classified Advertising Department because of
her emotional reactions to the changes that had been made in the supervisory
structure of the telephone sales department, and with that she said, "All right,
thank you," and went out of the room in a rather gay fashion.
Horn denied that during the above-mentioned conversation, he said in words or
substance, "Well, Erma, I hear you have been a very busy little kid over the weekend"
or "maybe you were busier than usual this weekend"; that he had any knowledge
that Phinney and others were active in soliciting membership for the Union and
using Phinney's home as headquarters for such activities prior to the hearing herein;
that Cooper's name was mentioned during his May 25 talk with Phinney.
Salm testified that on May 25, as he usually does on Monday mornings, he went to
Horn's office at 8:30, or within 10 minutes thereafter, to confer with Horn; that on
that particular morning, Horn told him upon entering the latter's office, "I am going
to let Mrs. Phinney go"; that when he inquired the reason, Horn said, "I have been
thinking about this thing over the weekend and I have just made up my mind, and
don't try to sell me"; that he said, "Well, I feel rather sheepish, because I have cham-
pioned Phinney ever since she has been here"; that after they had been conferring for
about 10 or 15 minutes about other matters, Watkins knocked on the casing of
Horn's door and Horn invited Watkins in; that Watkins inquired whether there would
be a sales meeting that morning; that when Horn replied in the affirmative, Watkins
asked whether the Association may hold a meeting immediately after the sales meet-
ing, to which request Horn assented; that Watkins then voluntarily said, "Now that
Marie Grewe is no longer here, I do not want to be president of the Association 49
with all the work I have to do, I just won't have the time to spend on it"; and that
Watkins left Horn after Horn had said the sales meeting would start in about 5
minutes and the Association then may have its meeting.
Salm further testified that Watkins left Horn before he did; that shortly after
Watkins had left, the sales meeting which he attended was held; that he did not
scream at Phinney to come into Horn's office; that he never screamed or pointed his
finger at any employee, and never intentionally embarrassed any employees; that if
Phinney had been requested to go to Horn's office the request undoubtedly was
transmitted in the usual fashion through his (Salm's ) secretary; and that he was
present in Horn's office when the latter informed Phinney of her discharge. Salm's
41 At that time, Watkins was the Association's first vice president.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony respecting what then transpired between Horn and Phinney is substantially
the same as Horn's.50
The Trial Examiner is convinced, and finds, Horn's and Salm's versions of what
took place between Horn and Phinney in Horn's office on May 25, including when
it took place, to be substantially in accord with the facts. It is inconceivable to
the Trial Examiner that a man of Horn's wide business acumen and apparent well
breeding would first inform a female employee that she was discharged for engaging
in union activities and then order her to "get out" of his office.
To find, as the General Counsel apparently contended, that Horn was apprised
by Watkins, when the latter was in Horn's office at the time he requested permission
to hold an association meeting, of Phinney's phone call soliciting his membership
in the Union or otherwise informed Horn of Phinney's attempts to unionize the
classified advertising department employees, would, in effect, substitute questionable
evidence, which at best amounted to nothing more than suspicion and surmise, for
necessary substantial evidence.
Upon the entire record in the case, the Trial Examiner finds that Phinney's
dismissal from Respondent's employ was not violative of the Act. This finding is
buttressed by the fact that the record is devoid of any credible evidence that Phinney's
union membership or activity was known to any official of Respondent prior to her
discharge. Nor can it properly be found that, because of the small number of
employees involved, that the weekend union activities of Phinney came to Horn's
attention prior to his decision to fire her for the record discloses (1) that Horn
was absent from the city over that particular weekend and that almost as soon as
he reached his office the following Monday morning he informed Salm of his decision
to fire Phinney; (2) that the reason he gave Salm for Phinney's dismissal was the
same reason he gave Phinney when he fired her; and (3) all union activity took
place off Respondent's premises and all such activity engaged in by the employees,
up to that time, was clothed in secrecy. Accordingly, the Trial Examiner recom-
mends that the allegations of the complaint, as amended, that Erma Phinney's
discharge was violative of the Act be dismissed.
Violet Grimm was a telephone solicitor from about July 9, 1951, until her discharge
on May 26, 1953. Grimm joined the Association about 5 months after the com-
mencement of her employment. The only association meeting she attended was
the May 25, 1953, meeting at which Al Bourne was elected president in the place
and stead of Giewe.
Grimm attended the May 19 drugstore meeting and openly expressed her dissatis-
faction with the practice of hiring girls at varying starting pay. At the meeting at
the L.ampo home she signed a union membership application. On May 20, 21, 22,
or 25, Grimm asked employee June Self, in the presence of employee Charlotte
Rutledge, at an eating place, to join the Union. On May 20, 21, or 22 she solicited
employee Olga Tash's membership. On May 23, Grimm joined Harris, Campo,
and McCleary at Phinney's home and solicited by telephone union memberships from
among her coworkers and, on the same day accompanied by Harris, Campo, and
McCleary, Grimm went to the homes of about six employees and secured the
signatures to union membership applications of some of the persons visited. On
May 24, Grimm returned to Phinney's home and, with McCleary, Phinney, Marsland,
and Harris, solicited by telephone other employees of the classified advertising
departments to join the Union.
Grimm testified that about noon on May 26, Hamilton told her, Coy Flanagan,
and Beverly Harris that they were each discharged and handed them their respective
pay vouchers; that she asked Hamilton why she was discharged and Hamilton gave
as the reason "reorganization of territories"; that she went to her desk, gathered
together her personal belongings, and returned to Hamilton and said, "Sally, I am
very sorry that this had to happen right now, because if some of us had been
allowed to attend the [Association) meeting at the Case Hotel tomorrow night,
Mr. Horn might have found out a little bit of what was wrong with conditions in
this room. Now he will probably never know"; and that when Hamilton replied,
"Well, Vi, what is going on, I don't know anything about this," she said, "Well,
there is no point in going into it now because I am discharged."
6 'Watkins testified at the hearing but was not questioned about his talk with Horn on,
the morning of May 25 nor about his leaving Horn's office and "whisking" in the opposite
direction from that which Salm had taken after the latter had left Horn's office on the
occasion in question. Admittedly, Phinney was unable to see the door of Horn's office
from her desk, where she testified she was sitting on May 25, when she allegedly saw
Balm and Watkins leave Horn's office
HEARST PUBLISHING COMPANY, INC. 415
Hamilton testified that on the day or on the day before she discharged Grimm,
Flanagan, and Harris, she requested Horn to discharge them because she believed
they were conspiring to have her removed as supervisor. Hamilton further testified
that other factors motivated her in requesting Grimm's discharge, such as: (1)
frequently reporting late for work; (2) slowness in performing her tasks; (3)
rejecting and resenting Hamilton's numerous suggestions to allow Marsland or some
other person to aid her in preparing her "proofs"; (4) showing disrespect when
Hamilton made suggestions; and (5) openly exhibiting hostility toward Hamilton
because Hamilton would not permit her to enjoy the privileges of coming to work
late or taking more than the allotted time for lunch and relief periods which Phinney
had permitted her to do.
Grimm denied that she resented Hamilton's suggestions for the improvement of
her work; that she ever exhibited any hostility toward, or ever was discourteous to,
Hamilton; that she "burned up" because Hamilton insisted she report for work on
time; that Hamilton ever suggested that Marsland or anyone aid her in preparing
"proofs."
Grimm admitted on the witness stand , however, that during her employment under
Hamilton's supervision-about a month-she, according to the record she, herself,
kept, was late for work on 6 occasions; that on 2 or 3 occasions Hamilton "called me
to her desk and told me that she wasn't going to stand for people being late, and I
said I was very sorry"; that commencing at the end of the first week after Hamilton
became supervisor of the telephone salesroom, some of the girls employed therein
started to complain about Hamilton and "it was a continuing process" thereafter until
practically all the girls, including herself, complained to one another about Hamilton's
policing the department and checking the individual's work; that several girls stated
that they felt as if "they were in a concentration camp" because of Hamilton's
"gestapo" methods; that she resented Hamilton's "constant patrolling" the room; and
that she "got angry about her work being interfered with" by Hamilton when the
latter, about a week or 10 days before her termination, gave her "checking" to others
,to do.
When viewed in the light that the record in its entirety furnishes, including the
admissions of Grimm referred to immediately above, the Trial Examiner finds that
the reasons given by Hamilton during her examination herein were the sole and
controlling factors which motivated Hamilton to request Horn to discharge Grimm 51
Accordingly, the Trial Examiner finds that Violet Grimm's discharge was not dis-
criminatorily motivated and hence recommends that the allegations of the complaint,
as amended, with respect to Violet Grimm be dismissed.
Coy Flanagan was a telephone solicitor from about August 22, 1951, until her
discharge on May 26, 1953. Flanagan signed a union membership application at the
Campo home on May 19.
According to the undenied and credited testimony of Hamilton,52 Flanagan's em-
ployment was terminated because Flanagan was actively engaged in the ouster move-
ment and because Flanagan reported for work late.
The record is silent as to any credible evidence that Hamilton, Horn (from whom
Hamilton received permission to discharge Flanagan), or any other managerial offi-
cial had any knowledge of Flanagan's union membership or activity prior to Flan-
agan 's discharge. Nor is there any evidence in the record from which it can be in-
ferred that Flanagan's termination was motivated by union animus or by any other
unlawful consideration. The Trial Examiner finds, upon the record as a whole,
that Flanagan was discharged on May 26 for the reasons given by Hamilton in her
testimony at the hearing herein and not for the reasons alleged in the complaint, as
amended. Accordingly, the Trial Examiner recommends that the allegations of the
complaint, as amended, with respect to Coy Flanagan be dismissed.
Beverly Harris was employed by Respondent from December 11, 1952, through
May 26, 1953. For the first 3 months she was a real estate advertisement telephone
solicitor, then an office furniture and equipment telephone solicitor, and shortly after
Hamilton became telephone salesroom supervisor was given the job of replacing any
girl who was ill or then on vacation. Harris joined the Association about 6 or 7
weeks after commencing her employment with Respondent.
Harris attended the aforementioned drugstore meeting. She testified, and the
Trial Examiner finds, that there discussion was had, among other things, regarding
R Hamilton, when she discharged Grimm, Flanagan, and Harris, did not give them the
true reasons for the termination because she disliked telling a girl she was discharging
that the girl had resented and embarrassed her or that the girl had been hostile to her:
62 Flanagan did not testify.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the policing , and the way Hamilton was standing over us all day, [which] some of
the girls said . made them nervous, and they did not feel they could do their work
properly, and there [were] complaints about the fact that [Hamilton took] the
checking . away from the girls in the morning and [gave it] to the switchboard"
operators; that during said drugstore meeting, Brenner repeatedly said, "We are
going to get fired"; that while at the drugstore with Margaret Strong, during that after-
noon 's "coffee break", Rita Campo came over to them and asked if she and Strong
"would be interested in coming out to [the Campo] home and [discuss] the News-
paper Guild [the charging Union] if we can get no help from the Association meeting
this evening"; that she said she would gladly accept the invitation if nothing of any
consequence developed at the Association's meeting; that she went to the Campo
home with Strong, Grimm, and Flanagan and there signed a union membership ap-
plication; that the reason she was interested in becoming a union member was that she
"did not feel too secure in my job . . . [and] felt conditions [at Respondent's plant]
could be improved and [the employees] made happier"; and that on May 23, together
with McCleary, Rita Campo, and Grimm, she went to Campo's home where McCleary
telephoned 7 or 8 coworkers and inquired if they may call upon them; that'she,
Grimm, and McCleary then called on quite a few telephone salesroom employees
and secured the signatures of some of them to union membership applications; that
she and the three persons named above then went to Phinney's home where they
telephoned other employees and requested them to join 'the Union; that during the
time she was at Phinney's home she and her companions solicited memberships from
about 10 or 15 persons; that on May 24, she and others again met at Phinney's home
and telephoned Watkins, At Bourne, and 23 other classified advertising department
employees and solicited their memberships; that on the morning of May 25, she met
Alice Gietz away from Respondent's place of business and secured Gietz' signature
to a union membership application.
Harris further testified that shortly before noon on'May 26, Hamilton told her
that as soon as she had finished the task she was then doing to report to her
(Hamilton's) desk; that shortly after arriving at Hamilton's desk, Hamilton arrived
accompanied by Grimm and Flanagan; that Hamilton announced their discharges,
adding, "Girls, I hate to do this, this is something I don't like to do, but I have to.
I have your vouchers for you, and I want you to leave immediately"; that Grimm
asked Hamilton the reason for the discharges and the latter replied, "Well, we
have to let you go, Vi, because we are changing your territories"; that she then
returned to her desk and about 3 minutes later went to the desk located behind
Flanagan's desk where she kept some of her belongings and while there Hamilton
came to her and Flanagan and said, "I have told you girls to get out now, I
want you to leave immediately"; that when she replied, "All I want to do is
get my things," Hamilton retorted, "Just get out."
The record shows that Harris' transfer to the "vacation girl" job was very ad-
vantageous to her in that, as Hamilton pointed out to her at the time of the
transfer, the job gave her experience in all classifications, which experience en-
hanced her earning power. However, despite the fact that admittedly Hamilton
gave Harris more opportunities to increase her earnings than Phinney had given,
Harris never earned more than her base pay.
Hamilton testified that she discharged Harris after informing Horn that she had
been advised that Harris was one of the group trying to oust her as supervisor;
that other factors also prompted her to discharge Harris, which were (1) Harris
was often late reporting for work, on one occasion as much as I or 11/2 hours
late; (2) on many occasions when Harris reported for work late Harris did not
offer any reason for her lateness; (3) Harris displayed an indifferent attitude when
she remonstrated with Harris about the lateness; (4) while under her supervision
in the telephone salesroom she heard Harris say to some other employees, "If only
Erma Phinney was back in charge, we wouldn't have to put up with this Hamilton
woman"; and (5) Harris carried on whispered conversations with Marsland (Hamil-
ton's then assistant) and worked "more closely" with Marsland than with her.,
Harris denied that she was often late; that she ever said to anyone, "If only Erma
Phinney was back in charge, we wouldn't have to put up with this Hamilton
woman"; or that she was hostile to Hamilton. Harris testified that she could
recall but three occasions when she was late during Hamilton's regime; that she
was late on one occasion because she had a cold and then she telephoned and so
informed Hamilton, that Hamilton told her to report when she felt better, that
she reported about 11/z hours after the usual starting hour; that on another occa-
sion she was late because she was delayed by a traffic tieup and told Hamilton about
the delay when she came to work that morning about 20 minutes late; and that the
HEARST PUBLISHING COMPANY, INC. I " 417
third time her lateness was due to the fact that she had a dentist appointment and
told Hamilton about it upon reporting for work.
The Trial Examiner finds Hamilton's testimony, as summarized above , respecting
Harris' lateness and her attitude toward Hamilton when that matter was called to
her attention to be in accordance with the facts and rejects Harris' denials regarding
such matters . The Trial Examiner further finds the reasons given by Hamilton
in her testimony for discharging Harris to be the sole motivation for said action.
The conclusion that Harris' discharge was not violative of the Act becomes ines-
capable when due consideration is given to (1) Respondent 's lack of knowledge,
prior to May 26, 1953, of Harris' membership or activity in behalf of the Union;
(2) lack of credible evidence that Respondent had, or expressed , any antipathy to
the Charging Union , or any other labor organization ; ( 3) Hamilton was informed
by Brenner on May 20 , and by other persons under her supervision on and after
that day, that Harris was active in the ouster movement ; (4) Hamilton and Horn
honestly and sincerely believed the information furnished by Brenner and the
others to be correct ; and (5 ) their decision to discharge Harris for actively par-
ticipating in the ouster movement was based on such belief.53 Under the circum-
stances, the Trial Examiner recommends that the allegations of the complaint, as
amended, with respect to Beverly Harris be dismissed.
Mina Marsland was a telephone solicitor from the commencement of her employ-
ment with Respondent in December 1940, until she was appointed assistant super-
visor of the telephone salesroom in December 1952. Marsland's employment was
terminated by Horn on May 26, 1953.
Marsland testified 54 that during the May 18 afternoon "coffee break" she and
some of the girls in her department decided that the best thing to do would be to
have a meeting to discuss certain unpleasant conditions then existing in the telephone
salesroom; that they further decided that since she had known Marie Grewe longer
and better than a lot of the other girls she should ask Marie Grewe to call an associa-
tion meeting; that shortly after "the break" she asked Grewe if Grewe would call
an association meeting; that in answer to Grewe's question why the girls wanted such
a meeting she said, "Marie , you must know by now why the girls want a meeting, you
know they have been unhappy, and they want to have a meeting with you to see if
we can better conditions in here"; that Grewe replied that she would see what could
be done and would let her know the following morning; that during the morning of
May 19, Grewe came to her and said, to quote Marsland, "She had made arrangements
to have a meeting that afternoon at 5:30, that it would be held either in a room to
which she alone had a key, or if the girls preferred , it could be held in the drugstore
across the street"; that Grewe then suggested that the girls meet during the day and,
to again quote Marsland, "work out a more concrete agenda that could be presented
at the evening meeting so that she could in turn give it to the grievance committee and
to management"; that she thereupon reported to as many of the girls as she could
contact what Grewe had told her that morning ; that only after the drugstore meeting
had been held did she learn of it ; and that at about 5:25 she learned from some girls,
whose identity she could not recall , that the scheduled 5:30 association meeting would
not be held.
Marsland further testified that about 10 o'clock on Friday night , May 22, Grimm
telephoned and told her that Grewe and Cooper had been fired; that she had no
previous knowledge of said discharges or that Respondent had been contemplating
such action; that during the morning of May 23 she telephone Grewe, and after
extending her sympathies to Grewe, inquired the reasons for the, termination; that
Grewe replied, "Because I called that meeting"; that Grewe then said, to again quote
Marsland, "She said that [the Horn-Grewe May 22 conversation ] had been a very,
very unpleasant session, that Mr. Horn was very, very angry with her, he was very
vehement about it, she said it was something that was most unpleasant to have ex-
perienced . [She then stated ] that Mr. Horn said that quite a few more girls
were going to be fired , that his plans were to get rid of a lot of the older girls, and she
mentioned Gerry Toudoze and myself as being definitely slated , also to be fired .
She [also stated that Horn had said] `Marie Grewe , how dare you have a meeting
without first consulting me' . . [and] I in turn said , `Mr. Horn , you know all the
time I have been president of the Association you have not let me call a meeting!"'
as Th is conclusion also governs the Trial Examiner 's findings respecting the other per-
sons here involved whom Hamilton or Horn testified were discharged for actively partici-
pating in the movement to oust Hamilton as telephone salesroom supervisor.
64 Marsland was called -as a General Counsel 's witness but was not cross -examined by
either Respondent ' s counsel or counsel for,the Association
418 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
Grewe denied certain statements which Marsland testified she had made to the
latter on May 18 and 19 and also denied making statements on May 18 and 19 which
Marsland attributed to her. Since the Trial Examiner has already credited Grewe's
aforesaid denials and found Grewe's version of what was said and done by and
between Grewe and Marsland on May 18 and 19 to be substantially in accordance
with the facts, it would serve no useful purpose to again discuss in detail Grewe's
testimony with respect to the May 18 and 19 incidents. The Trial Examiner further
finds that at no time on either May 18 or 19 did Marsland ask Grewe to call an
association meeting, nor did Grewe suggest that the girls hold a meeting at the
drugstore.
Grewe further denied that during the aforementioned telephone conversation she
had with Marsland on May 23,55 she said to Marsland that Horn had stated, in words
or substance, on the occasion when Horn had fired her that (1) quite a few more
girls were going to be fired; (2) he planned to fire the older girls, including Toudoze
and Marsland; and (3) "Marie Grewe, how dare you have a meeting without first
consulting me." Grewe testified, and the Trial Examiner finds, that Horn did not
make, in either word or substance, the remarks referred to in (1), (2), and (3), above,
on the occasion when Horn fired her nor did she say to Horn, at that time, in words
or substance, "You know all the time I have been president of the Association you
have not let me call a meeting." 56 The Trial Examiner credits Grewe's denials and
finds that she did not make the above-referred-to statements.
Marsland testified, and the Trial Examiner credits this portion of her testimony
because it is uncontradicted and because it is consistent with certain other evidence
credited by the Trial Examiner,57 that she first heard of the Union's drive to organize
the classified advertising department employees when Grimm telephoned her on May
23 and informed her of the drive; that May 24, she signed a union membership appli-
cation; that about midafternoon on May 25, she was called to Horn's office and, in
Salm's presence, the following ensued:
Mr. Horn asked me how I was. I said I was fine, and he said, "How is every-
thing going?" I said, "Everything is going fine." Then Mr. Horn said; "Is
there anything going on in there that I should know about?" I said, "No,
nothing that I could think of at the moment." He said, "In other words, every-
thing is going fine." And I said, "Yes." Then Mr. Horn said, "Well, you
realize if there is anything in there that is going on that I should know about,
it is your duty to come and tell me." And I said, "Yes, I did." And the inter-
view ended.
At about noon on May 26, Horn called Marsland to his office and, after telling her
that her work had been "sluffing off," handed her her final paycheck.
The record is manifestly clear that Marsland was discharged, not for the reasons
alleged in the complaint, as amended, but because Horn honestly and truthfully
believed that Marsland was one of the leaders of the Hamilton ouster movement,
Marsland was antagonistic to Hamilton,58 and because Marsland did not give Horn
an honest or truthful answer when he questioned her on May 25, regarding the con-
ditions and atmosphere in the telephone salesroom. Furthermore, the record is clear
that Respondent's officials had no knowledge of Marsland's union membership and
activity'prior to her discharge. Accordingly, the Trial Examiner recommends that
the allegations of the complaint, as amended, with respect to Mina Marsland be
dismissed:
Joan Barry was employed as a telephone solicitor from October 22, 1952, until
her discharge on May 26, 1953. At the solicitation of Grimm, Campo, McCleary,
and another girl, Barry signed a union membership application at her home on May
15 Grewe testified that it was her recollection that this conversation took place on May
24 Whether it took place on May 23 or May 24 is of no great import and hence it is not
necessary to resolve the conflict of testimony respecting the date of the conversation.
ee Horn likewise denied that Grewe made any such remark on the occasion of her dis-
missal or at any other time.
W The acceptance of part and the rejection of other portions of Marsland's testimony
does not affect the soundness of the findings-thereon, because :
It is no reason for refusing to accept everything that a witness says, because you do
not believe all of it , nothing is more common in all kinds of judicial decisions than
to believe some and not all. N. L. R. B v. Universal Camera Corporation, 179 F. 2d
749, 754 (C. A. 2).
Prior to Marsland's discharge, Hamilton told Horn that Marsland had a band in the
drugstore meeting and that Marsland was hostile to her.
HEARST PUBLISHING COMPANY, INC . - 419
23. On May 25 or 26, she asked McCleary to return her application but the latter
has never done so. Shortly before the close of business on May 26, Hamilton called
Barry and Margaret Naslund to her desk and informed them that their employment
was being terminated because the territories they had were being reorganized.
Barry testified, on direct examination, that she called on Saim at his office err
May 29, seeking reemployment; 59 that she opened the conversation with SaIm by
saying, "I had signed a [Union] card and had changed my mind since that time and
[I] would like my position back"; that Salm replied that she had not been discharged'
for signing such a card; that Salm also said that if she, in fact, had been fired for"
signing a union card and he rehired her, he would get into trouble; that Salm queried
her as to whether certain named employees were union members, to which inquiry
she replied that she did not know; that she gave Salm the false answer because she
did not wish to divulge the names of those whom she knew were union members;
that Salm asked her if Marsland and Phinney had called at her home and she replied
in the negative; that she replied in the affirmative when Salm asked if Grimm and
McCleary had called at home; that when Salm asked if "the little blond girl" had
called at her home she replied that she did not know whom he meant; 60 that in
response to Salm's inquiry as to whether she attended any union meetings she replied
in the negative; and that she told Salm, when he asked if any male salesmen "were
in on it," that she did not know.
On cross-examination, Barry testified that when she informed Salm that she had
changed her mind with respect to being a member of the Union and would like
to be rehired, Salm said she was not fired because she had signed such a union card,
and that he added that he would see what he could do about reinstating her; that
when Salm asked her if her production had been low, she admitted it had been, and'
Saim said that perhaps she was released for that reason; that Salm also asked, to
quote Barry, "me questions concerning the [Union], and who were members, etc.,
and I told him I did not know, that I had never attended any of the meetings. He
asked me if [male salesmen] were involved, and I said I did not know"; that Salm,
asked if Campo and Grimm had been to her home and she said they had, that when
Saim mentioned the names of other employees (including Flanagan and probably
Watkins) and asked whether any of them had been to her home, she replied in' the
negative; and that Salm also stated that he, to again quote Barry, "would try and get
my position back."
Saim testified that when Barry called on him after her termination he did not
know her nor did he know that she had formerly worked in his department; that
she opened the conversation by requesting reinstatement because her job with Re-
spondent was the best job she ever held; that when she said that she had signed a
union card, he stated, "I am not interested in that, that has no bearing on your job'
or anything else"; that Barry then proceeded to tell him that, to quote Saim, "persons
had come to her home, left notes on her door, and come to her home at various
hours of the night and disturbed her mother, that her mother had been crying for
two days and said that she was foolish to have given up her job at the Examiner"'-
that he told Barry he would intercede with Hamilton and try to get Hamilton to re-
employ her; and that he actually did intercede on her behalf; and that Barry also
stated , "I will apologize to Mrs. Hamilton, I will do anything to get my job back."
Salm denied that he queried Barry about her membership and activity in behalf
of the Union, or about the membership of other employees or whether certain
persons, including Marsland , Grimm, Campo, and Phinney, had called at her home,
or whether the male salesmen had supported the Union's drive. He also denied
that Barry told him that she had changed her mind about belonging to-the Union.
He likewise denied that any employees' name was mentioned by him during the
aforesaid conversation with Barry.
The Trial Examiner was favorably impressed with Salm's demeanor while on the
witness stand and with his consistent , clear, definite testimony, both on direct and-
on cross-examination . The same cannot be said of Barry's witness-stand demeanor
or of her testimony. For those reasons, the Trial Examiner credits Salm's aforesai&
denials and finds his version of what transpired during the above-related conversation,
with Barry to be substantially in accord with the facts.
59 Undoubtedly, Barry was mistaken as to the date of this incident for she testified that
she saw Campo and McCleary on, Respondent 's premises on the day she called on Salm.
The record , is clear that the last two named persons were discharged on May 28, hence
Barry must have visited Salm on or before May 28. The date of the incident , however„is
not material.,, ,
00 Barry testified that she thought Salm was;referring,to McCleary.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton testified, and the Trial Examiner finds, that Barry was discharged
because (1) she was an active participant in the movement to oust her as a superior; 61
(2) her production was low; and (3) she resented Hamilton's suggestions, ways,
and means of securing more business.
Upon the entire record in the case, the Trial Examiner finds that Barry was
discharged on May 26, 1953, for cause and not for the reasons alleged in the com-
plaint, as amended. The Trial Examiner further finds that Respondent's officials
had no knowledge of Barry's union membership or activity prior to her termination.
Accordingly, the Trial Examiner recommends that the allegations of the complaint,
as amended, with respect to loan Barry be dismissed.
Margaret Naslund commenced her employment as a telephone solicitor for
Respondent on October 22, 1951, and retained that position until her discharge on
May 26, 1953. About a month after the commencement of her employment
Naslund joined the Association. At the solicitation of Grimm, Campo, McCleary,
and Harris, who called at Naslund's home on May 23, she signed a union member-
ship application. As found above, Barry and Naslund were discharged by Hamilton
at about the close of business on May 26, 1953.
According to Hamilton's testimony, Naslund was discharged because (1) Naslund
actively participated in the movement to oust Hamilton as supervisor; (2) Naslund
always "griped" about the territory assigned to her; (3) Naslund resented Hamilton's
numerous suggestions to improve production, and was otherwise hostile to Hamilton.
The Trial Examiner finds that Naslund attended the drugstore meeting; that the
day following said meeting Brenner told Hamilton that Naslund had attended the
meeting and was a ringleader in the movement to oust Hamilton as telephone sales-
room supervisor; that Hamilton, relying on the truth of Brenner's statement, and
because of Naslund's otherwise unsatisfactory attitude toward her work and toward
Hamilton, discharged Naslund; that prior to Naslund's discharge, neither Hamilton
nor any other official of Respondent knew of Naslund's membership or activity in
behalf of the Union; that Naslund's union membership and activity in behalf of the
Union played no part in Respondent's determination to discharge Naslund; and
that Naslund was not discharged for the reasons alleged in the complaint, as amended,
but was discharged for the reasons stated by Hamilton in her testimony at the hearing
herein. Accordingly, the Trial Examiner recommends that the allegations of the
complaint, as amended, with respect to Margaret Naslund be dismissed.
Fay McCleary was a telephone solicitor from March 10, 1952, until her discharge
on May 28, 1953.
McCleary testified, without contradiction, and the Trial Examiner finds, that prior
to Hamilton's advent as telephone salesroom supervisor the employees of that room
complained about the unsanitary conditions in the restrooms and in the ladies' lounge,
about the transfer of employees, without consultations, from one territory to another,
about the loss of accounts to outside salesmen, about poor ventilation in the telephone
salesroom, about starting new employees at higher rates than that paid to telephone
solicitors presently employed, and about granting varying commission rates; that when
Hamilton became her supervisor, although the above-named complaints still con-
tinued, those complaints became less important for the girls became provoked about
Hamilton's general manager of supervision, Hamilton's instructions to Mary Peel,
secretary of the telephone salesroom, to record as tardy any girl reporting for work
late or not at her desk at the day's starting time; that at a coffee shop during the
May 18 afternoon "coffee break," she, Marsland, Maria Griffin, Cooper, Phinney, and
Jo Castro discussed the holding of a meeting; that about 2 hours later Marsland
informed her that Grewe, at Marsland's request, had agreed to hold a meeting the next
day; that the following morning Marsland advised her that Grewe had suggested that
the girls meet at noon and "map out some sort of agenda of what our grievances were
to be so [Grewe] would have something to present to management . . . ; 62 that Mars-
land told her there would be a meeting in the drugstore during the noon hour and she
transmitted that information to several of the girls working in the vicinity of her
desk; 63 that she attended the drugstore meeting and there "many of the girls rcom-
01 Barry attended the drugstore meeting and the following day Brenner told Hamilton
that Barry was a ringleader in the movement to oust Hamilton as telephone salesroom
supervisor.
62As previously found, Grewe did not make this suggestion to Marsland.
03 Marsland testified that she did not know about the meeting at the drugstore' until
after it had been held. The Trial Examiner finds that Marsland did not tell the truth
when she denied knowing that the telephone salesroom employees planned to meet in the
drugstore during the luncheon period of May 19.
H-EARST PUBLISHING COMPANY, INC. 421
_plained] about the constant policing by Mrs. Hamilton , and what could we do to rectify
it, whereby she [Hamilton] would treat us like adults instead of kindergarten
children."
McCleary signed a union membership application at the Campo home on May 19,
and thereafter became very active in its behalf.
McCleary testified that on the night of May 26, she attended a union meeting held
at the Embassy Hotel; that the following morning, presumably before starting time,
she heard Horn, who was in his private office, talking on the telephone to a Mr.
Hanson; that she heard Horn mention "Embassy Hotel, eight o'clock," and "Thank
you very much, I will check on it." Horn denied having such a conversation; knowing
a man named Hanson; having any knowledge, prior to the time McCleary testified in
this proceeding, of a union meeting at the Embassy Hotel on May 26. The Trial
Examiner credits Horn's denials and finds that he did not participate in the tele-
phone conversation such as testified to by McCleary. But even if such a conversa-
tion had taken place and Horn, in fact, had mentioned the words attributed to him
by McCleary, it would stretch one's imagination to the breaking point to construe
the utterances of those words to mean , as the General Counsel undoubtedly intended
them to mean, that Horn was being advised during said telephone conversation that
the Union had held a meeting on May 26 at the Embassy Hotel. With the General
Counsel's seeming interpretation of Horn's purported words, the Trial Examiner
cannot concur.
McCleary further testified that shortly after 1 p. in. on May 27, she and about 10
or 12 other telephone salesroom girls were called into Horn's office and Salm, in
Horn's absence, opened the meeting by stating that he realized that the telephone
solicitors were quite upset about the many discharges which had taken place and
about the unrest which was then prevailing in the telephone salesroom; that he then
said he called the meeting to assure the telephone solicitors that they had job security,
that since all the troublemakers had been fired there would be no further firings, that
Marsland and Phinney had been fired because they had been troublemakers, that
Phinney (whom he said he went out of his way to make supervisor) turned out to be
a "very irresponsible person and was not capable of handling the telephone salesroom,
so we had to demote her, and we put her on a desk which is the best desk on any
newspaper in the country, but she did not appreciate that," that over the weekend
Phinney got drunk and tried to solicit union memberships, that Respondent did not
want persons like Phinney in its employ, that Marsland would find it difficult finding
another job paying as much as she had been receiving while in Respondent's employ,
and that had Marsland cooperated with management she still would be in its employ.
McCleary further testified that when Anna May Gehrke said "Mr. Salm, you do not
realize what it is to work under Mrs. Hamilton, she is sneaking over you, standing
behind you, she makes me so I can't work," Salm expounded upon Hamilton' s untiring
working qualities and then explained that Hamilton did not expect the girls in her
charge to work as hard as she did; and that Salm ended the meeting with assurances
of job security and with the suggestion that when the girls had complaints or needed
extra money to make certain purchases they consult him or Horn. McCleary also
testified that Salm told the assembled girls that if they got any phone calls about the
Union or about being slated for discharge, they should ignore the calls and "hang up"
on the caller.
Salm testified that one particular day, the date of which he could not recall, he met
with 3 groups of telephone solicitors in Horn's office; that each group comprised about
12 or 14 girls; that the reason he called the meeting was "to sell" Hamilton to the
girls in the telephone salesroom and to dispel the girls' fear_of losing their jobs, which
fear, he testified, he believed to have been generated in them by the telephone calls
they had received at the office and at their homes from persons known and unknown
to the girls; and that at least 8 or 10 girls told him, prior to these group meetings,
they had received telephone calls informing them that they were about to be fired.
Salm denied that he told the group of which McCleary was a member that man-
agement had rid itself of all the troublemakers; that he referred to Marsland and
Phinney as troublemakers; that he stated that Phinney had been calling up people
over the weekend, getting drunk, and trying to solicit union membership; 64 that
be stated management "had cleaned out the [telephone sales ] room"; that he sug-
gested that the girls take their complaints up with him or Horn instead of going
k
a Salm credibly testified that, at the time he held these group meetings, he did not know
that Phinney had solicited anyone to join the Union or that he knew anything of her per-
sonal habits.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'to their supervisor with them; 65 that he stated if anyone should call up pertaining
to a union or- if anyone should call and tell the employee called that she was going
to lose her job, his advice was to hang up and ignore the matter entirely; that he
mentioned the Union or the Association or made any reference to an organizer
during the interviews above referred to.
Upon the record as a whole, coupled with the fact that Salm was, in the opinion
of the Trial Examiner, an unquestionably honest and forthright witness, the Trial
-Examiner credits Salm's denials and finds that he did not make any remarks vio-
lative of the Act or make any statement at the meeting McCleary attended on
May 27, which, in all honesty, could be construed as being antiunion or tending
to prove Respondent's knowledge of the employees' union activities, or indicating
that Marsland, Phinney, or any other person had been unlawfully discharged 66
About 15 minutes before quitting time on May 28, Hamilton informed McCleary
and Campo that they were being discharged for economy reasons and because their
particular territories were being reorganized. When McCleary and Campo' ex-
pressed in very loud voices their dissatisfaction with the notation "terminated"
on their respective pay vouchers, which Hamilton handed to each when she dis-
charged them, Hamilton requested McCleary and Campo to accompany her to
Horn's office. On the way, Hamilton stopped at Salm's office and asked him to
-go with her, Campo, and McCleary. En route to Horn's office, Campo and McCleary
loudly shouted their disapproval of Hamilton in vulgar and profane language. Upon
reaching Horn's office, Salm, in Horn's absence, asked Campo and McCleary what
the trouble was. Either Campo or McCleary replied, "We want to know why we
were fired." When Salm asked if Hamilton had not explained the reason, either
Campo or McCleary said, "Yes, but our vouchers merely say `terminated.' " After
looking at the vouchers Salm instructed Horn's secretary to send the vouchers to
the payroll department and have the notations on them changed from "termi-
nated" to read, "Rearrangement of territories." When the vouchers were returned
from the payroll department with the new notation thereon, Salm handed them
to Hamilton with instructions to give them to Campo and McCleary and he further
advised Hamilton not to permit either Campo or McCleary "to go into the tele-
phone salesroom shouting the way they are."
Upon the record as a whole, the Trial Examiner finds that the allegations of
the complaint, as amended, that McCleary's discharge was violative of the Act is
not supported by substantial evidence. The Trial Examiner further finds' that
the credible evidence establishes that McCleary was discharged because Hamilton
honestly and sincerely believed, as Brenner had reported to her, that McCleary was
a ringleader in the movement to remove her as telephone salesroom supervisor;
that prior to McCleary's discharge, neither Hamilton nor any other official of
Respondent had any knowledge of McCleary's union membership or activity; and
that McCleary's union membership or activity played no part in Respondent's
decision to terminate McCleary's employment. Accordingly, the Trial Examiner
recommends that the allegations of the complaint, as amended, with respect to
Fav McCleary be dismissed.
Rita Campo was a telephone solicitor from April 15, 1952, until her discharge on
May 28, 1953.
Campo actively participated in the May 19 drugstore meeting and while at the
drugstore during that afternoon's "coffee break" she asked Grimm, Tash, Harris,
Strong, Cooper, and several other coworkers to be at her home that evening if
they were interested in discussing the Union. At about the agreed-upon time about
10 telephone solicitors gathered at Campo's home that night and there each signed
05 Salm credibly testified that Respondent's policy was to have the employees take up
all complaints with their immediate supervisor, and if the employee felt the supervisor
had not satisfactorily adjusted the matter then the employee was free to discuss the
grievance with him or Horn.
00 Campo, Tash, and Beverly Parker testified about the particular May 27 meeting each
attended ; each testified that Salm made statements similar to those attributed to him by
McCleary. Salm specifically denied making the statements which Campo, Tash, and
Parker testified he made. For the reasons above stated with reference to his denials of
McCleary's accusations, the Trial Examiner credits Salm's denials of remarks attributed
to him by Campo, Tash, and Parker. The record is clear that Salm knew nothing of the
Union's organizing campaign at the time of the holding of the above-mentioned meetings,
and therefore it is reasonable to assume that the Union was not mentioned by him in any
of the three meetings - -
HEARST PUBLISHING COMPANY, INC. 423
the union membership application which Campo's husband, Joseph,67 had secured
at her request. On May 23 and 24, Campo, in conjunction with Phinney and sev-
eral other telephone solicitors, some of whom had attended the meeting at her home
on May 19, telephoned some girls in her department, and personally called upon
others, soliciting their memberships in the Union.
As found above, Campo and McCleary were notified by Hamilton on May 28,
that they were discharged because their territories were being changed; that Campo
and McCleary were perturbed because the notation on their vouchers read "termi-
nated"; that each used profane language, used vulgar terms in expressing their dis-
like of Hamilton, and otherwise acted unladylike; and that, after Salm's interven-
tion, the vouchers were changed to read as demanded by Campo and McCleary and
then the two dischargees left Respondent's premises.
Upon the entire record in the case, the Trial Examiner finds that the allegations
of the complaint, as amended, that Campo's discharge was violative of the Act
is not supported by substantial evidence. The Trial Examiner further finds that
the credible evidence establishes that Campo was discharged by Hamilton because
Hamilton honestly and sincerely believed, as Brenner had reported to her, that
„Campo was a ringleader in the movement to oust her as telephone salesroom super-
visor; that prior to Campo's discharge, neither Hamilton nor any other managerial
official had any knowledge of Campo's union membership or activity in its behalf;
that no Respondent official, except possibly Marsland, had any knowledge, prior
to Campo's discharge, that Campo's husband actively assisted the Union's organiza-
tional campaign and was in its employ; 68 and that Campo's union membership and
activity played no part in Respondent's decision to discharge Campo. Accordingly,
the Trial Examiner recommends that the allegations of the complaint, as amended,
with respect to Rita Campo be dismissed.
Eunice Rebenstoff 69 was a telephone solicitor from January 1952 until her dis-
charge in June 1953. On May 23, Rebenstoff signed a union membership applica-
tion.
On either June 1 or 8, the last day of Rebenstoff's 1953 vacation, Hamilton tele-
phoned Rebenstoff and informed her that she was discharged because the territories
were being reorganized. About 3 or 4 weeks later Rebenstoff called upon Salm
and inquired why she was discharged. Salm told Rebenstoff that her termination
resulted from the territorial reorganization which had taken place.
About mid-July, Rebenstoff called upon Horn seeking reinstatement. On this
occasion, according to Rebenstoff's uncontradicted testimony, which the Trial Ex-
aminer credits, the following transpired.
He [Horn] asked me how I felt about [Hamilton] as a supervisor, whether I
was hostile toward her, and I said no, I didn't, I thought the Examiner was a
very good place to work, that is why I was back there for my job. . . . We
discussed the fact that people did feel hostile toward [Hamilton] several of
them did, and I told him that I did not, I didn't feel any malice at all toward
her . . . he asked [how] I felt about conditions in general at the Examiner
against [Hamilton], and I told him I had always gotten along with her . . . I
knew that some girls felt malice toward her, and in fact we had a meeting
at the drugstore about that . . . he said . we had to work together, we
couldn't have agitation between the girls and the supervisor. . I told him
that I felt that the girls were not actually trying to oust [Hamilton], most
of them. Some of them probably were. A few of them, not all of them.
they didn't all feel the same about the matter, but the purpose of the drug-
store meeting was, I told him, to air their malice about [Hamilton]... .
It was a gripe session about [Hamilton], . malice toward her, and some
people trying to get rid of her, not every girl that was there.
Rebenstoff further testified, and the Trial Examiner finds, that during the above-
referred-to conversation she told Horn she did not know the identity of the persons
who were attempting to oust Hamilton as supervisor but was sure that some of
the girls were anxious to accomplish that result; that Horn remarked that in an
organization such as Respondent's, an employer must require the employees to be
loyal to their supervisors and Respondent "just couldn't have people in the depart-
6r Joseph Campo began his employment with the Union on May 27, the day before his
wife was fired.
61 It is safe to infer that Marsland, If she knew this fact, did not convey such knowledge
to any managerial official. It is likewise safe to assume that Marsland never told any
other Respondent official who were members of, or active in behalf of, the Union.
69 Also referred to in the record as Judy Rebenstoff.
379288-56-v oI. 113-28
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that felt malice toward the supervisor and couldn't work with her"; that she
told Horn that she belonged to the Union; and that sometime later she was re-
hired.
According to Hamilton's undenied and credited testimony, Rebenstoff' s services
were dispensed with when the territory to which she had been assigned was elimi-
nated during the territorial reorganization which took place when Rebenstoff was
on annual vacation and that Rebenstoff's attendance at the May 19 drugstore meet-
ing played no part in her determination to terminate Rebenstoff's employment.
Upon the basis of the entire record in this case, which clearly reveals that Respond-
ent's officials had no knowledge of Rebenstoff's union membership or activity prior
to her discharge, the Trial Examiner finds that the allegations of the complaint,
as amended, that Rebenstoff's discharge was violative of the Act are not supported
by substantial evidence. Accordingly, the Trial Examiner recommends that the
allegations of the complaint, as amended, with respect to Eunice Rebenstoff be
dismissed.
Olga Tash was a telephone solicitor from January 7, 1953, until she was discharged
on June 12, 1953. Prioi to her discharge Tash joined the Association and also signed
a union membership application.
Tash testified that toward the close of business on June 12, Hamilton came to
her and said, "Look, your lineage is down again that week"; that when she replied,
"I know it," Hamilton stated, "I am going to have to let you go"; and that she then
said, "Certainly not the lines this week, you know why it is down," Hamilton replied,
"Yes, I do, I will have to let you go, I am sorry"; that Hamilton spoke to her several
times about her low production; that her low production was due to the fact that
owners of several large tracts of lands had sold the houses located thereon and
consequently these persons found no need to continue their newspaper advertisements;
and that one particulai Burbank realtor advertiser, who was one of her large accounts,
told her that lie was going to discontinue his advertisements in Respondent's paper,
and would advise other Burbank realtors to do likewise, because a certain special
article about the San Fernando Valley, published in the pictorial section of Respond-
ent's paper, failed to mention the city of Burbank.
Upon the entire record in the case, the Trial Examiner finds that Tash was
discharged, as Hamilton advised her on the day of her release, because of her poor
production. The record fails to show that Respondent had any knowledge of Tash's
union membership or activity prior to her discharge or that Hamilton's motive in
discharging Tash was caused by any reason other than Tash's poor production.
Accordingly, the Trial Examiner recommends that the allegations of the complaint,
as amended, with respect to Olga Tash be dismissed.
Patsy Matthews 70 was hired on April 9, 1951, as a telephone solicitor. Later
she was an operator on the telephone salesroom switchboard taking advertisements
when the telephone solicitors were not available or busy with their own accounts.
About a month or two after starting her employment Matthews joined the Asso-
ciation. At the solicitation of McCleary she went to Phinney's home on May 23,
and signed a union membership application. That afternoon she unsuccessfully
sought to induce Judy McPeak, a telephone solicitor, to join the Union.
Toward the end of her shift on June 16 or 17, Hamilton called Matthews to her
desk and, after stating that Matthews should not have injected the remark, "Isn't
that something," when Hamilton was reprimanding Helen Brown, a telephone
solicitor, that afternoon, advised Matthews that her services were no longer needed.
Matthews thereupon, according to Hamilton's credible testimony,71 returned to her
desk, broke the telephone headset receiver by throwing it on the floor, tore up the
work she had done on the following day's advertisements, threw a box of clips across
the room, broke the point on a fountain pen by throwing the pen on the floor, called
Hamilton a "damn old witch" and then said, "We'll be back and we'll get your job.'.'
Hamilton further testified that Matthews' nasty manner toward her, the above-
mentioned incident involving Helen Brown, and Matthews' general insubordination
were the sole reasons for Matthews' discharge.
Matthews testified that the day following her discharge she called upon Horn
and asked the reason for her termination; that Horn replied that Hamilton advised
him that the reason leading up to the discharge was her remark when Hamilton was
reprimanding Helen Brown; that she told Horn that she did not make any such
remark and requested that 'Hamilton and Brown be, brought into the meeting so
70 Also referred to in the record as Patsy Ann Matthews and as Patricia Matthews.
71 Matthews' version of the incident about to be recited is, In many respects, in accord
with Hamilton's ' Where the versions differ, the Trial Examiner accepts Hamilton's as
being the more reliable. ' `
HEARST PUBLISHING COMPANY, INC. 425
that she could prove to Horn that she was telling him the truth; that Horn stated
that she should return later that day because Hamilton was then at lunch; and that
when she returned after the noon hour, Horn told her to return the following day.
Matthews further testified that she returned the following morning and again asked
Horn, in the presence of Hamilton and Salm, why she was discharged; that Hamilton
assigned as the reasons (1) the above-referred-to Brown incident during which she
remarked, "This is impossible"; and (2) the fact that she "had given [Hamilton]
a dirty look, therefore causing agitation in the office"; that she stated to Horn that
Hamilton's aforesaid statements were not true; that she demanded that Brown be
called into the' meeting; that Horn replied that Brown had nothing to do with the
matter; that when Horn asked if she wanted reinstatement, she replied in the
affirmative and then the meeting concluded.
The next morning about 7 o'clock, according to Matthews' testimony, Salm tele-
phoned and, after asking her to come to the office that morning, said that she should
not seek advice from Marsland, Joseph Campo, or "headquarters," adding, "If you
do, I will know about it , we aren ' t dumb , "either"; that she advised Salm that she
would call at his office later; and that when she arrived at Salm's office about 9 or
9:30 that morning the following took place:
A. Well, he (Salm) first asked if I had called anyone or told anyone that I
was going down to his office to talk to him, and he then said-well, he offered
me my job back. He said, "If you apologize to Mr. Horn and Sally May, and
if you promise that you will not cause any agitation in the office, or try to get
any of the girls to join the union , I will get your job back on the call board."
I told him that I did not have any faith and trust in them after the lies they
said about me, and I refused . He, again stated that if I would apologize to
Sally May, and not cause any agitation in the office, or try to get anyone into
the union, he would give me my job back, and I told him that I did not have any
faith or trust in him, and we went through the same thing twice, more or less.
He said, "Why, you sneak," he said, "don't you realize that the CIO is not
going to help you, the Examiner is not going to help you, you have to help your-
self."
Then he started to write out something on paper , starting with the words,
"My distrust," and I realized he was writing out some kind of a statement, and
I told him I was not going to sign any statements in the office , and with that he
wadded the paper up, through [sic] it away, and he said, "If you go shouting
your head off to the other employees about the union, I will have your neck."
Horn testified that when Matthews called upon him on the morning following her
release he was extremely busy and asked Matthews to return about 1:30 that after-
noon ; that when Matthews returned at the specified time he was preparing certain
data the publisher had requested and he asked Matthews to return the following
morning at 10 o'clock; that Matthews did not arrive until 11 o'clock and when she
did, the following took place in the presence of Hamilton and Salm:
We had a rather lengthy conversation, I would say. We were together about
20 minutes. I asked her to review her situation. She says, "Well, I don't want to
get into the details of this until you call Helen Brown into the office."
I said, "Miss Matthews, we are here this morning to review your whole situa-
tion, and I would like to do it in a very orderly manner. It just so happens Mr.
Salm and Mrs . Hamilton are here in my office . I will bring Miss Brown in later,
but I first want to get over the general details so far as you are concerned, and
listen to what Mrs. Hamilton has to say."
She got up from her chair in a very beligerant [sic) manner-
Q. Who was the "she"?
A. Miss Matthews , and she said , "I didn't come down here to listen to a lot
of lies that you and Mrs. Hamilton have to tell me. You probably . or
words to this effect . . . got up a story here that will satisfy you, but it will not
satisfy me, and I insist that right now before we go any further that you call
Helen Brown into the office."
"Well, now," I said , "Miss Matthews , I know you are a bit upset, but there is
no reason for you taking that attitude . Just don 't be excited, just sit here and
tell me just what you think about the situation ," and I asked her some questions,
and I asked Sally Hamilton some questions , and I was trying to proceed to a
point where Miss Matthews would feel completely satisfied that she was getting
the time and the attention that she had asked for, and I said , "Now, if Miss
Brown has anything to say on ' this situation that will alter the decision that Mrs.
Hamilton has made, we will give it every consideration , but for the time being, I
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would like to discuss it with you and Mrs. Hamilton," and she got vituperative,
and she said "Mrs. Sally Hamilton is a liar, and you are just as bad as she is
and I am just not going to sit around here and listen to all these lies."
I said, "Now, Miss Matthews, we are not getting anywhere at all," and she
said, "Well, I don't have to get anywhere," and kept up that stream of abuse.
She got up and stomped out of the office, and she said, "You will hear from
the union later," or words to that effect.
Regarding the above-referred-to phone conversation between Salm and Matthews,
the former testified that he called Matthews and advised her that he had a job he
thought she could fill; that Matthews, replied, "Are you kidding?" he said "No, I am
not kidding"; that she said, "After the raw deal I got in Mr. Horn's office the other
day, I don't know whether I am interested or not"; that he then said, "Pat, you didn't
get a raw deal . Mr. Horn was perfectly willing to call Helen Brown into the
office and listen to her, but you walked out of the office in an arrogant manner, and
closed the case yourself"; and that when Matthews inquired of the nature of the job,
he told her about it, and she then agreed to be at his office at 9 o'clock that morning.
Salm denied that he suggested during said telephone conversation that Matthews
not seek advice from Marsland, Joseph Campo, or "headquarters"; or that he stated,
in words or substance, "If you do, I will know about it, we aren't dumb, either."
SaIm also denied that during the course of the conversation he had with Matthews in
his office the morning he telephoned to her he said in words or substance, "Why, you
sneak, don't you realize that the CIO is not going to help you, the Examiner is not
going to help you, you have to help yourself" or "if you go shooting your head off to
the other employees about the union, I will have your neck" or said that if Matthews
was reemployed she had to promise not to solicit the other girls to join the Union.
Regarding his meeting with Matthews a few hours after the above-mentioned tele-
phone conversation, Salm testified as follows:
Mrs. Morgan (Salm's secretary) was as close to me, probably closer than you
are right now, Mr. Hall. -
I asked Miss Matthews to be seated at my desk. I told her, I said, "Pat, I
have always liked you, you are an experienced girl, you are trained, I have a
job on the outside sales board which you can fill very nicely."
She said, "I don't want any part of Mrs. Hamilton."
I said, "You will not have any part of Mrs. Hamilton in this capacity, you will
work out here under Mrs. Morgan."
She seemed to be agreeable to that, and I said , "Now, Pat ..." we talked
salary, we talked hours, and she seemed agreeable to that, and I said, "Now, Pat,
it will be embarrassing for you, and it will also be embarrassing for Mrs. Hamil-
ton for you to be around here under the circumstances," because the day previous
to the day she had threatened to slap Mrs. Hamilton's face in Mr. Horn's office,
and called her a liar, with adjectives prefaced.
.I said, "It will be most embarrassing for you to work here with Mrs. Hamilton
and Mr. Horn. Why don't you be a big girl and apologize to those two persons,
and everything will be forgiven."
She said, "I will not apologize."
I said, "Well, Pat, if you don't want to face Mrs. Hamilton, let's write out a
note," and she said, "Well, what will we say," and I said, "Well, let's write it
like this," and I took my scratch pad, and I started to write a note.
At that juncture, she stood up, folded her arms, and within hearing of several
people in the office she says, "I don't want the 'G- D-' job-the Labor Board
will get my job back," and [she] stalked out of the office.
Upon the record as a whole, coupled with the fact that Horn, Hamilton, and Salm
impressed the Trial Examiner as forthright and sincere witnesses, the Trial Examiner
finds their respective versions of what transpired on the day Matthews was discharged
and on the 3 days immediately thereafter to be substantially in accord with the facts.
The Trial Examiner also credits Salm's denials that he made the statements, set forth
above, attributed to him by Matthews 72
The Trial Examiner further finds that Matthews was not discharged for the reasons
alleged in the complaint, as amended, but was discharged for cause; that Respondent's
officials did not know of" Matthews' union membership and activities prior to her
discharge; and that Matthews' union membership and activity played no part in Haniil-,
72 Salm's version of what transpired between him , and Matthews on the, morning, he
offered her reinstatement is substantially 'corroborated by the credited testimony of his
secret M Mr anar ry, a y 0 g .
HEARST PUBLISHING-COMPANY, INC. 427
ton's decision to dispense with Matthews' services. Under the circumstances, the
Trial Examiner recommends that the allegations of the complaint, as amended, that
Patsy Matthews' discharge was violative of the Act be dismissed.
Beverly Parker was first hired by Respondent as a telephone solicitor in March
1950. About 6 months thereafter she was assigned to the telephone salesroom switch-
board taking advertisements when the telephone solicitors were engaged with their
own accounts, which job she held until her discharge on July 20, 1953. Parker joined
the Association about 6 weeks after she commenced her employment with Respondent.
Sometime during the afternoon of May 19, Parker, at Flanagan's request, copied
the names and addresses of all the telephone solicitors then in Respondent's employ
on a piece of paper and handed the list to Flanagan. As Flanagan was leaving the
office for the day, she handed Parker a note requesting the latter to be at the Campo
home that evening. Parker attended the meeting and, like all the other girls there,
signed a union membership application.
Parker testified that on the morning of May 30, she and Salm had a conversation
wherein Salm asked if anyone had telephoned her soliciting her membership in
the Union; that she informed him that she had such a call on May 23, but she did
not recognize the voice of the caller; that Salm then asked, "Was it Erma [Phinney]"
and she said, "I think so"; that Salm then said, "Well, you know Erma has been
calling everyone soliciting people to get into" the Union; that Salm then, to quote
Parker, "went on to tell me that Joan Barry had reported to him that she signed
a card, and that is why he fired her, and Joan Barry also reported that Fay McCleary
and Rita Campo had signed cards, and did I know anything about Rita"; that
Salm then asked if she knew Joseph Campo, to which inquiry she answered in the
negative; that Salm also said he fired "the girls" because they had joined the Union;
that when Salm asked if she knew if any of the girls in the telephone salesroom were
union members, she replied that she did not; that Salm requested her to inform him
if, and when, she became apprised of any girl in the room joining the Union; and
that Salm asked "me if [Phinney] had asked me for any personal things in that
department, in the telephone sales, like the list from the switchboard, and I said
I don't know anything about it."
Parker further testified that the day after Matthews was fired, she telephoned Horn
from her home, was informed that Horn was in a meeting and could not be dis-
turbed, and that she was connected with Salm; that she told Salm that Matthews
had been to her home the previous evening and had phoned Judy McPeak from
there; that McPeak told Matthews that the discharge notice which Matthews was
given was intended for her (Parker) and not for Matthews, she did not intend to
report for work that day; that Salm assured her that her information was erroneous
for he would bet a $1,000 that she would never be fired; that, relying upon Salm's
assurances , she reported for work that day, but 2 hours late; and that 2 hours
after she had been on the job, Salm telephoned her from his office and, after inquiring
if everything was all right, said, "It is just the way I told you, you won't get fired,
and just spit on those girls you call freaks around here waiting for your pink slip."
Parker also testified that no supervisor every found fault with her work; that
about a week or two before she was discharged Hamilton mentioned to her the
taking over or handling the entire switchboard, which is manned by 4 operators,
for a period of about 2 weeks while 1 of the operators was on vacation; and that
on that occasion Hamilton stated she was being offered the job of heading up the
switchboard because she was a proficient employee.
Regarding the conversation she had with Hamilton when she was discharged
on July 20, Parker testified that when Hamilton said she was being fired because,
among other things, she had been receiving personal phone calls during business
hours, because her work was unsatisfactory, and because she had called Horn
vile names, she said, "Just don't tell me that, Sally, give me my pink slip without
all that conversation"; that she also told Hamilton that the latter's accusation that
she called Horn vile names was an untruth; and that she added that she had worked
very hard and efficiently, that Respondent could not get another person who could
do the switchboard job as efficiently as she had done it.
Parker also testified that about 2 days after her discharge she unexpectedly met
Horn outside Respondent's building; that Joseph Campo joined them and then the
3 of them conversed for the next 5 or 6 hours, first at the cocktail lounge in the
Case Hotel and later during dinner at a restaurant, about various matters including
the reasons for her release from Respondent's employ; that Horn mentioned that
she had been seen getting into Joe Campo's car the Thursday night prior to the day
she was fired, that he did not know that she was the type of girl she was, that she
should have earned a higher salary at Respondent's establishment instead of being
a switchboard operator because she had been a very efficient worker with an excellent
428 DECISIONS OF NATIONAL, LABOR RELATIONS -BOARD
attendance record, and that she was discharged because she had not been loyal
to him.
Salm testified that the May 30 conversation he had with Parker pertained solely
to a personal problem of hers and that nothing was said by either him or Parker
about the Union, the employees' union membership, or their union activities. He
specifically denied the statements Parker testified he had made during said conversa-
tion.
Regarding the telephone conversation he had with Parker the day after Matthews
was discharged, Salm testified as follows:
Miss Parker called me about eleven o'clock. I think it was on a Friday morn-
ing, and her words were this: "Jack, shall I come to work," and I said: "Well;
why not?" She said, "People have called me and told me that I am going
to be fired today, and if I am going to be fired today, I want to save myself
the embarrassment of coming in and being fired, just tell me now." I said,
"Well, to the best of my knowledge, you are not going to be fired, Beverly."
She said, "Well, these persons are calling me and telling me that I am going
to get it tonight," and I repeated, "Well, if you are, I know nothing about it."
She said, "Well, I haven't even started to dress, and I won't if I am going
to be fired." I said, "Well, get your clothes on and come on down here, take
a cab and come on down to work, don't be silly." She said, "Thank you, very
much," and that was the extent of the telephone conversation with Miss
Parker.
Saim specifically denied making the remarks which Parker testified he had made
during said telephone conversation. He likewise denied that he and Parker had
any conversation, except the above-mentioned telephone call, the day after Matthews'
termination, save that about 3 o'clock that day Parker came to his desk and said,
"Thanks, honey."
As found above, Salm impressed the Trial Examiner as a credible witness. On
the other hand, Parker did not so impress the Trial Examiner. Under the circum-
stances, the Trial Examiner credits Salm's denials set forth above, and finds his
versions of his conversations with Parker on May 30, and on the day after Matthews'
discharge to be substantially in accord with the facts.
After testifying at great length regarding what was said and what transpired when
Campo, Parker, and he had drinks at the Case Hotel and later had dinner at a
restaurant, Horn was questioned regarding the remarks attributed to him by Parker.
Horn denied that he said on that occasion, in words or substance, that Parker. was
discharged because she was disloyal to him or that he said that Parker had been seen,
on the Thursday immediately preceding the day of her discharge, getting into
Joseph Campo's car. Horn testified, and the Trial Examiner finds, that, except for
the occasion referred to immediately above, he never had any information or knowl-
edge that Parker had ever ridden in Joseph Campo's car.
Since it has been found that Horn was. a credible witness and Parker was not,
the Trial Examiner credits Horn's denials of the statements Parker attributed to him
and finds Horn's testimony with respect to his aforesaid conversation with Joseph
Campo and Parker to be substantially in accord with the facts.73
According to Hamilton's testimony, Parker was discharged because Parker (1) was
rude to or argued with certain named advertisers on the telephone when said
advertisers called on business matters; (2) repeatedly allowed an advertiser calling
about his advertisements "to hold the phone" for an unnecessarily long time while
she continued the conversation with the party with whom she was talking before the
call came in; (3) on several occasions used vile, profane, vulgar and/or other un-
seemly language when describing to the coworkers certain advertisers, who, because
of their origin, did not express themselves in clear and distinct English when they
spoke to her on the phone; (4) devoted a great amount of her working time to
personal telephone calls,74 to the exclusion of company business; (5) unnecessarily
disconcerted the telephone solicitors by "constantly griping and complaining about
being overworked" and about other working conditions; (6) on one occasion re-
ferred to Horn in the most vile terms; (7) spent a lot of time writing personal
letters during business hours; and (8) continued such practices and conduct despite
Hamilton's repeated warnings to desist therefrom. Upon the record as a whole,
especially June Woodward's undenied and credible testimony which, in the main,
corroborates Hamilton's testimony regarding Parker's unsatisfactory conduct, the
Trial Examiner finds that Parker was discharged for the reasons assigned by Hamilton
73 Campo testified but was not- questioned -about the events 'of the aforesaid evening.
74 One such call last-bd an hour.
HEARST PUBLISHING COMPANY, -INC. 429
while on the witness stand in this proceeding and not for reasons alleged in the com-
plaint, as amended. Accordingly, the Trial Examiner recommends that the allega-
tions of the complaint, as amended, with respect to Beverly Parker be dismissed.
Dorothy Pauline McGuire 75 was employed as a telephone solicitor from April 9,
1951, until her discharge on August 28, 1953, except for a certain period of time
when she was ill.
At an association meeting held on June 29, McGuire complained that she was.
being unfairly treated by Respondent because when she returned from her vacation,
on or about May 31, she discovered that her territory had been "busted" so that
instead of making $100 a week, as she did previous to her vacation, she was now
earning $72. Al Bourne, the then Association president, stated that he would look
into McGuire's grievance and if it were found to have merit he would take it up
with management. The next evening,, Bourne, the entire grievance committee, and
McGuire met with Horn, Hamilton, and Salm. There McGuire's grievance was
fully discussed and Horn satisfactorily explained, at least to the satisfaction of the
members of the grievance committee, that McGuire's claim was unfounded. Horn,
Hamilton, and Salm then left the meeting. Bourne, with the announced approval
of the grievance committee, then requested McGuire to advise the association mem-
bers at a meeting to be held the following morning, that her grievance was groundless,
because Respondent did not "bust" her territory nor did it otherwise reduce her
earning power.
Admittedly, McGuire reported for work the next day about 45 minutes late-
Shortly after her arrival, the members of the Association met. During a hectic
session, at which McGuire continued to state that her earning capacity had been
impaired, Bourne and others informed the members that they were satisfied, after
the grievance committee had thoroughly reviewed the matter with Horn at a meeting
the previous evening, McGuire's claims were unfounded. Toward the end of the
meeting, McGuire became ill, left the meeting, and fainted 76
From July 1 until July 6, McGuire was hospitalized and thereafter remained away
from business for about 3 weeks.
On July 31, McGuire called upon Horn to inform him that she was prepared
to return to her job. During the course of the conversation, according to McGuire,
Horn asked, "Do you think that you are prepared to go back to work, do you think
you can work for the Examiner?" that she did not reply because she did not know
what Horn's question meant; that Horn, to quote McGuire, then "went on further to,
explain that . . . a lot of the other girls had gotten mixed up in the wrong crowd,
a lot of them could come back to him, as I had come to him and got their jobs back,
but there was a couple that he could wring their necks"; that Horn asked if she
could "work for the Examiner loyally" and then repeatedly remarked that the em-
ployees must show their "loyalty to the company"; that Horn asked if she was
physically able to return to work on the following Monday, August 3; that she
replied, she had to return to work on Monday because she had no money; that
when she mentioned her impecunious condition , Horn opened his wallet and gave
her $50 inquiring if that would help tide things over; that when she replied,
"anything would help," Horn handed her another $20; that in reply to her ques-
tion whether the $70 would be deducted from her wages, Horn said it would
not because it was a matter "strictly between you and me "; that Horn made some
disparaging comments about Parker; that Horn also said there were "a lot of mixed'
girls getting into the wrong crowd, and actually all that this fellow Campo was
interested in were the girls at $5 a head"; that Horn asked what advantages she
derived from her union membership; and that Horn said if she returned to work she
must, to quote McGuire, "make up my mind, definitely, as to what side of the fence
I would be on, and to work loyally for the Examiner, that there were people that
had worked for the Examiner for a number of years, and they were loyal to the
Examiner . . . no matter what happened, or when it happened, word always got
back to him . . . [for] he had people in the room that would always come to him
and tell him exactly what happened, and when it happened."
About 10 days or 2 weeks prior to August 28, Horn and McGuire again conversed.
According to the latter, Horn, after inquiring about her health, her job, and her
relationship with the other employees, asked if she were being "bothered by any
outside annoyances"; that when she told Horn that she had received telephone calls
'+e Also referred to in the record as Paula McGuire.
re McGuire testified that when she recovered from her fainting spell, in the presence of
Salm she, phoned-'Joseph Campo at the Unions .offices but he was not there Salm denied
that McGuire made any call in his presence The Trial Examiner does not credit this
portion of McGuire's testimony
-430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Joseph Campo and from some of the girls , he asked if the callers wanted her
to go to the Labor Board ; that she replied in the affirmative; that she then stated
that she did not intend going to the Board as long as she was employed and paid
by the Examiner ; that she then requested to be given additional work because if
she were unoccupied she became very nervous ; and that Horn assured her that as
soon as he returned from his vacation he would see what he could do about assigning
her more work.
McGuire further testified that about noon on August 26 she went to the Board's
offices and saw E . Don Wilson , counsel in the instant proceeding for the General
Counsel ; that about 1 p . m. she telephoned Hamilton and told Hamilton that she
would be "held up by a very important appointment and would not be at work that
afternoon"; that Hamilton replied , "All right"; that shortly after reporting for work
,the next day Hamilton demanded to know where she had been the previous after-
noon ; that when she replied that she would rather not supply the information, Hamil-
ton retorted , "I insist on knowing where you were at, I am the boss"; that when
-she told Hamilton that she had been with Wilson , Hamilton 's "mouth flew open";
and that in response to Hamilton 's inquiry as to the purpose of the visit to the Board,
she stated that she went because of the dispute she then was having over the past
week's salary check ; 77 that when Hamilton asked , "What else did you discuss" and
whether she had signed a statement for Wilson , she said , "That is strictly confidential
and my business alone"; and that the conversation ended when Hamilton said , "Well,
Paula, let's go back to our desks and do a good day's work."
McGuire also testified that the following morning, about the time of her "coffee
break," she asked Hamilton if she was going to be fired ; that when Hamilton asked
why, she informed Hamilton that there was some mixup over the loan application
she had placed with the credit union located on Respondent's premises and therefore
she assumed that the credit union was holding up the loan because she was about
to be discharged ; that Hamilton replied , "I know nothing about that, Paula, I just
don't think that you are"; that toward the end of the workday, Hamilton advised her
that Horn wanted to see her; and that she went into Horn's office with Hamilton and
the following then ensued:
Mr. Horn was sitting at his desk . . . He looked up at me and said that he
found it necessary to release me from the company as I hadn 't quit due to my
illness, but he was paying me full severance pay, he knew I needed the money.
He asked me to have a seat and read this letter.78 He gave me a letter, it was
four pages long, as to why I was fired. He asked me to sit down and read it.
In the condition I was in , I couldn 't read a letter with two people staring and
gloating over me. I scanned through the letter, and wanted to get out of there
in a hurry.
After I folded the letter up, Mr. Horn looked at me and said, "Do you under-
stand now why we are firing you?" I nodded and more or less said yes, and he
said, "Well, do you have anything to say for yourself, do you have anything
to say?"
I said, "This makes me very, very happy."
[Hamilton] immediately jumped up and said , "What do you mean by that,
and I said , "This makes me very happy," and [I] turned and walked out of the
door. As I walked out, Mr. Horn said, "Well, good luck, Mac, you will need it."
Horn testified'at considerable length regarding the aforementioned three meetings
he and McGuire had on July 31, August 14 or 18, and on August 28. It would
serve no useful purpose to detail the substance of Horn's version of said meetings.
Suffice it to say that the Trial Examiner is convinced, and finds, his testimony
regarding said three meetings to be substantially in accord with the facts. The
Trial Examiner credits Horn's denials of certain specific statements McGuire testified
Horn made on those occasions.
In crediting Horn 's testimony about the incidents referred to immediately above
and discrediting McGuire's, the Trial Examiner was favorably impressed by Horn's
witness-stand demeanor and with the candid and sincere manner with which he
answered all questions put to him. His testimony , both on direct and on cross-
examination , was not only consistent, clear and definite , but in many instances was
corroborated by other credible witnesses and by documentary evidence. Further-
more, he did not attempt, nor, for that matter, did any other witness for Respondent
or for the Association attempt, at any time to give his testimony new direction or
77 Respondent deducted from the check the time McGuire remained away from work
between August 3 and the date of the check in dispute.
78 This letter was received in evidence and was marked General Counsel's Exhibit No. 71.
HEARST PUBLISHING COMPANY, INC. 431
emphasis to meet situations developed during the course of his examination. The
above credibility findings cannot be applied to McGuire.
Likewise it would serve no useful purpose to set forth here in any detail Hamilton's
version of her various conversations with McGuire and her testimony regarding
McGuire's unsatisfactory work and McGuire's latenesses in reporting for work between-
August 3 and August 28, for the Trial Examiner is convinced, and finds, that most
of McGuire's testimony is replete with concoctions of her own making the sole
purpose of which was to bolster her apparent weak case. This conclusion becomes
inescapable when due consideration is given to the plausible, consistent, and definite
testimony of Hamilton. Under the circumstances, the Trial Examiner finds Hamil-
ton's testimony with respect to McGuire to be substantially in accord with the
facts. The Trial Examiner credits Hamilton's specific denials of the statements
attributed to her by McGuire. The Trial Examiner also finds that Hamilton did
not speak to McGuire on August 26, when McGuire telephoned Hamilton from,
Wilson's office, but that McGuire spoke to Jean Stanlaski, a call board operator,
and told Stanlaski to advise Hamilton that she would not return to the office that
afternoon. The Trial Examiner further finds that McGuire did not tell Hamilton-
on either August 27 or 28, that she had been to Wilson's office on August 26, nor
did she tell Hamilton what transpired thereat.
Upon the record as a whole, the Trial Examiner finds that McGuire was discharged'
for cause and not foi the reasons alleged in the complaint, as amended. Accord-
ingly, the Trial Examiner recommends that the allegations of the complaint, as-
amended, with respect to Dorothy Pauline McGuire be dismissed.
C. Other alleged unfair labor practices
It is the General Counsel's contention that Respondent violated Section 8 (a) (1)'
by questioning applicants for employment about their union or nonunion affiliations.
In support of this contention several witnesses were called and testified that when
they applied for jobs as telephone solicitors the then supervisor of the telephone
salesroom inquired whether or not they were members of a union. One or two of
said witnesses testified that they were also queried as to whether any member of-
their immediate families were union members. Since this testimony concerned
events which took place prior to the cut date (December 2, 1952), as fixed by
Section 10 (b) of the Act, it necessarily follows that no finding of an unfair labor
practice can be found and the Trial Examiner will not discuss the matter any further.
The only testimony, within the 6-month period, with respect to interrogating-
applicants for employment about their union affiliations, was given by Phinney who
testified that while supervisor of the telephone salesroom she hired telephone
solicitors; that when persons applied for jobs, "I asked particularly if they belonged
to a union, if they had had previous newspaper work, and I asked most everyone
if they had ever belonged to a union, or if they belonged to a union at the present
time", that shortly after becoming supervisor, Horn instructed her not to hire anyone
with newspaper experience without first consulting him or Salm; that shortly before
being replaced as supervisor by Hamilton, a former employee of the San Francisco
Examiner 79 applied for a job; that although she considered the applicant fully
qualified, she informed Horn that the applicant previously had worked on the San
Francisco Examiner; and that Horn told her not to hire the applicant because that
newspaper "was union"; and that said applicant was not hired.
Horn testified that the supervisors under his jurisdiction were instructed, "under
no circumstances . to inquire into union affiliations or union history of" an
applicant. Horn further testified that said supervisors were instructed, however, to
ask applicants whethei they had worked on other newspapers, and if they had, not
to employ them without first consulting him or Salm; and that he issued such
instructions solely because
Out of my long experience with classified advertising, I have come to realize
that there are workers on certain newspapers, certain kinds of newspapers that
are not particularly effective on a newspaper such as ours, that there are people
who have worked on monopolistic newspapers, where there was no competition
in the field, and done a pretty good job on such a newspaper under the absence
of competition.
But when they came to a newspaper such as ours, where they ran into resistance
and opposition, they were not effective. I knew that, I know the newspapers
around the country. Many of my supervisors do not, and that was one of the
71 This newspaper is published by Respondent.
-432 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD -
reasons why I said that they should check with me as to what newspapers these
folks may have worked on.
Another reason is that I have a very high opinion of some classified advertising
-managers in their training programs on their newspapers throughout the country.
A lot of those folks I would like to come to work for me, both union and
non-union newspapers.
But there are others where I know that the quality of training, the quality
of direction that they have had, and experience would not possibly qualify
them for work on our newspaper, and that was the reason why I asked that they
be submitted to me for discussion , for clearance.
Upon the entire record in this case , the Trial Examiner concludes and finds
that Phinney 's interrogating prospective employees regarding their past and present
union affiliations , standing naked and alone and not associated with any employer
antipathy toward unions or being a part of a pattern of employer-union hostility,
is insufficient to support a finding of Section 8 ( a) (1).80 Even assuming that this
isolated instance of possible misconduct by a supervisor did constitute an unfair
labor practice the Trial Examiner is of the opinion, upon the state of the record in the
instant proceeding , that it would not warrant the issuance of a cease and desist order
against Respondent.81
The General Counsel also contended that the job application form presented to
prospective employees contains a question pertaining to the applicant 's union af-
filiations and hence, by so doing, Respondent violated the Act. The General Counsel
is in error for the card is not presented to an applicant. However, several days
after an individual is employed and put to work a "history record" card is pre-
pared. There are two forms of such cards presently used by Respondent. They are
substantially similar, except that on one there is a question, "Union Affiliation
____________" and on the other there is no question relating to union affilia-
tions.
Regarding the purpose of the history record cards bearing the question of union
affiliation, Business Manager Mount credibly, and without contradiction, testified that
in the past (presumably prior to the enactment of the Taft-Hartley Act) this card
was used by Respondent solely for the employees of the composing room, the
pressroom, and other such departments so that the identity of the employees' union
affiliations could be noted for Respondent then had closed-shop contracts with
certain unions covering persons working in the above-named departments and.
therefore it was absolutely necessary to obtain such information; that now Respond-
ent has union-shop contracts with some of said unions and the identity of the
union affiliation of each person employed in said departments is as necessary now
as it was in the past; that the card is filled out and the information obtained only
after the individual had been hired and working on the job; and that the union
affiliation information is not, and never was, used for any unlawful purpose. Mount
further testified, and the Trial Examiner finds, that occasionally the person in
charge of the stockroom inadvertently gives the "union affiliation question cards"
to departments for which they are not intended.
The Court of Appeals for the Ninth Circuit recently held, in Wayside Press, Inc.
v. N L. R. B., 206 F. 2d 862, that the use of a form questioning an application for
employment concerning union affiliation was not violative of the Act. The court
said at page 364:
The trial examiner, in a finding that was approved by the Board, ruled that in
using an application blank for employment containing the question, "Are you
a member of Union___________ ___ If so, which one," Wayside had vio-
lated Section 8 (a) (1) of the Act. The only evidence in support of this
finding was the application blank itself . Immediately upon being informed
that the Board objected to the inclusion of the question in its form, Way-
side abandoned the use of it.
There was no evidence of any background of union hostility on the part of
Wayside, nor was any showing made, by credible evidence, that any at-
tempt had been made to use the information so garnered to restrain or coerce
employees in the exercise of their rights under the Act. Thus, the case is
80 See Wayside Press, Inc v. N. L. R. B , 206 F. 2d 862 (C. A. 9) ; N L. R. B. v Brown
Co, 160 F 2d 449 (C. A. 1) ; Tennessee Knitting Mills, 88 NLRB 1103, of N. L. R B. v.
Arthur Winer, Inc, 194 F. 2d 370 (C. A. 7) ; McGraw Construction Co., Inc., 107 NLRB
1043.
81 Cf. Bob Morgan Motor Company, Inc, 106 NLRB 334.
HEARST"PUBLISHING COMPANY, INC. 433
-squarely within the following statement from Sax v. N. L. R. B., 7 Cir., 171
F. 2d 769, 773 "Mere words of interrogation or perfunctory remarks not
threatening or intimidating in themselves made by an employer with no anti-
union background and not associated as a part of a pattern or course of con-
duct hostile to unionism or as part of espionage upon employees cannot, stand-
ing naked and alone, support a finding of a violation of Section 8 (1)."82
Under the circumstances of this particular case ,83 the Trial Examiner finds that
'Respondent's use of the employee history record card containing the question per-
taining to the employee's union affiliation is not violative of the Act.
Former employee Cyril Peel testified that on June 17, 1953, Horn called him
into his office and said, "Cy, you are going to be interrogated by a Labor Re-
lations Board man, and you know that I have no objection to the CIO, you had
a card for the CIO when you came here from the Daily News"; that after some
'discussion about the discharged telephone solicitors he said, "Mr. Horn, if you want
my frank opinion , I think you could have handled this situation very very skill-
fully, regardless of the fact of whether these girls were guilty of insurrection, or
whether they were not . . . In your smooth way, I think you would have satis-
fied these girls had you called them into your office, one by one, and placated them.
My heavens, you are tearing your department apart"; that Horn replied, "I would
just as soon as tear it apart myself as have the CIO tear it apart"; and that the
conversation concluded after he made certain remarks about being "a rugged in-
dividualist," "a free thinker," and the like.
Horn testified that he did not call Peel into his office but that the latter came
in at his own request; that there was no discussion about Peel being interviewed
by a Board representative; that the sole purpose of Peel's visit was to inform him
that Peel's wife, Marie, a secretary in the telephone salesroom, was not mixed up
in the Hamilton ouster movement; that during the conversation Peel suggested that
he call Marie Peel into his office and "ask her some questions" because "she can
tell you more about what is going on in the telephone room than anybody else";
and that after he had thanked Peel for his solicitude the conversation ended.
Upon the entire record in the case, the Trial Examiner finds Horn's version of his
conversation with Peel to be substantially in accord with the facts. This finding is
buttressed by the fact that the record is barren of any substantial or credible evidence
of any union hostility on Respondent's part; that Respondent showed the Board's
field examiner and counsel for the General Counsel to interview its personnel on
company time and property at all times convenient to the interviewers; that Peel was
discharged the day of or the day after the hearing herein opened for assaulting
Bourne; that Peel's testimony did not ring true; and that the improbability of Horn,
a man of wide business experience, denouncing the Union to one whom Horn knew
favored such an organization.
There is some other and further evidence in the record relied upon by the General
Counsel in support of his contention that Respondent violated the Act. It would
serve no useful purpose to resolve the conflict of testimony regarding this evidence
for it relates to events which occurred prior to December 2, 1952. For example, the
association meeting at the Chapman Park Hotel on April 12, 1951, attended by Horn
and other supervisors, and the meal served was paid by Respondent; the serving of
coffee and doughnuts at the Association's July 14, 1952, meeting which was attended
by Salm.
The Trial Examiner did not discuss at length herein the events which took place at
the Association's May 25, 1953, meeting and its meeting at the Case Hotel on May 27,
1953, because the Trial Examiner accepts Bourne's version of what transpired at
said meetings to be substantially in accord with the facts.
Upon the record as a whole, the Trial Examiner finds that the allegations of the
complaint that Respondent engaged in certain acts and conduct violative of Section
8 (a) (1) are not supported by substantial evidence. Accordingly, the Trial Ex-
'aminer recommends that the allegations of the complaint, as amended, that Respond-
ent violated Section 8 (a) (1) of the Act be dismissed.
I
8' See also McGraw Construction Go, Inc., 107 NLRB 1043.
as There being no "background of union hostility on the part of [Respondent] nor was
any showing made, by credible evidence, that any attempt had been made to use the
information so garnered to restrain or coerce employees in the exercise of their rights
under the Act."
434 DECISIONS OF NATIONAL LABOR - RELATIONS -BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in-
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
"1. Hearst Publishing Company, Inc. (Los Angeles Examiner - Division), Los
Angeles, California, is engaged , and at all times material herein was engaged, in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Los Angeles Newspaper Guild, affiliated with Congress of Industrial Organiza-
tions, and Association of Classified Advertising Employees of the Los Angeles Ex-
aminer, unaffiliated, are labor organizations within the meaning of Section 2 (5) of
the Act.
3. The allegations of the complaint , as amended , that Respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (a) (1),
(2), and (3) of the Act have not been sustained by substantial evidence.
[Recommendations omitted from publication.]
T. H. Burns and R. H. Gillespie d/b/a Burns and Gillespie and
Amalgamated Meat Cutters and Butcher Workmen of North
America, A.F.L. Case No. 32-CA-215. July 29,1955
SUPPLEMENTAL DECISION
On December 19, 1952, the National Labor Relations Board, herein
called the Board, issued its Decision and Order in this case,' in which
it found that T. H. Burns and R. H. Gillespie, d/b/a Burns and Gil-
lespie, herein called the Respondents, had engaged in and were en-
gaging in certain unfair labor practices affecting commerce and
ordered them to cease and desist therefrom and take certain affirmative
remedial action designed to effectuate the policies of the Act.
The Board thereafter petitioned the United States Court of Appeals
for the Eighth Circuit to enforce its order against the Respondents.
In an opinion handed down on October 29, 1953 2 and a decree entered
on November 25, 1953, pursuant thereto, the court denied enforcement
of the^Board's Order upon the ground that the Trial Examiner had
erroneously excluded competent and material evidence, but granted
the Board authority "to open the proceedings for further evidence and
a new order, if so advised."
On March 30, 1954, the Board issued its Order reopening the record
for the purpose of receiving and considering the excluded evidence.
On January 10, 1955, a further hearing was held before Trial Ex-
aminer George Downing, replacing Trial Examiner Stephen S. Bean,
who had presided at the original hearing and who, on November 11,-
1954, had disqualified himself. On February 25, 1955, Trial Examiner
George Downing - issued his Supplemental Intermediate Report, in
1101 NLRB 1181.
a 207 F 2d 434, 437
113 NLRB No. 45.