Hudson Dispatch

National Labor Relations Board - Board Decisions

May 20, 1946

68 N.L.R.B. 115 (N.L.R.B. 1946)

In the Matter of HUDSON DISPATCH and HUDSON COUNTY NEWSPAPER
GUILD, AFFILIATED WITH AMERICAN NEWSPAPER GUILD, C. I. O.
Case No. 2-C-5744.-Decided May 20, 1946
DECISION
AND
ORDER
On October 16, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that"it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the respondent filed exceptions to the Intermediate
Report and a supporting brief, and the Union filed a reply brief. On
April 16, 1946, the Board heard oral argument at Washington, D. C.
The respondent and the Union were represented and participated in the
argument.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs filed, the contentions advanced at the oral argu-
ment before the Board, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial Ex-
aminer, with the exceptions, additions, and modifications hereinafter set
forth.
1. We agree with the Trial Examiner that by the anti-union activity
of Editor Mitchell and City Editor Oliver, set forth in detail in the
Intermediate Report, the respondent has interfered with, restrained, and
coerced its employees in violation of Section 8 (1) of the Act.'
2. We agree with the Trial Examiner that the respondent discharged
James Allen on January 19, 1945, in violation of Section 8 (3) of the
'Although the respondent does not except to the Trial Examiner's recommendation that it be
ordered to cease and desist from interefering with, restraining , and coercing its employees, it
does contend that it is not responsible for the activity of Oliver. We accept the Trial
Examiner 's finding that Oliver is a supervisory employee, and find that his activity is
attributable to the respondent.
68 N. L. R. B., No. 17.
115696966-46-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. In so finding we rely upon all the findings of the Trial Examiner,
including in particular the following circumstances: the complimentary
statements concerning Allan's work made by City Editor Oliver and
Managing Editor Cook; the respondent's adverse criticism of Allan's
work immediately after the receipt of the Union's demand for recognition
and Allan's election as chairman of the union group at the respondent's
office ; Allan's outstanding union activity, which was known to the re-
spondent; and the respondent's expressed opposition to the organization
of its employees.
As indicated in the Intermediate Report, Allan made certain exagger-
ated statements concerning his prior journalistic experience when filling
out an application blank at the time he was hired by the respondent.
When first questioned at the hearing concerning the application, Allan
gave testimony supporting the statements he had made on the applica-
tion, but thereafter admitted the exaggeration and corrected his state-
ments. It also appears that while employed by the respondent, Allan
wrote letters to the editor under an assumed name and address contrary
to rules published in the respondent's newspaper requiring persons writ-
ing such letters to give their names and addresses. The respondent does
not contend that Allan's misstatements concerning his prior experience
and his violation of the printed rules of the respondent were reasons
for his discharge, but does contend that these matters affect his veracity
and make him untrustworthy as a witness. We do not agree with this
contention. Some of the facts to which Allan testified are not in dispute;
many of them are corroborated by witnesses whose credibility is not
challenged; none of them are contradicted by other witnesses. The
misstatements made by Allan do not affect a material issue. The Trial
Examiner did not find that Allan was an unreliable witness ; nor do we.
We have given due consideration to Allan's misstatements and violation
of the respondent's printed rules in determining his credibility, and we
conclude that they do not render Allan's testimony unworthy of belief?
3. We do not agree with the Trial Examiner's finding that the re-
spondent has violated Section 8 (5) of the Act.
As indicated above, we accept the Trial Examiner's finding that City
Editor Oliver is a supervisory employee, and we agree that Oliver should
be excluded from the appropriate unit. We cannot concur, however,
with certain of the other unit determinations made by the Trial Examiner.
We do not agree with the inclusion in the unit of Leo J. Hershdorfer,
whose status is not discussed in the Intermediate Report. Hershdorfer,
who received a salary higher than that of City Editor Oliver, was em-
ployed as the respondent's legislative correspondent and political writer
2 See N L. R. B. v. Eclipse Moulded Products Company, 126 F. (2d) 576 (C. G. A. 7),
enf'g 34 N. L. R. B. 785.
HUDSON DISPATCH 117
from 1926 until February 9, 1945. Over a period of several years
Hershdorfer substituted for the managing editor one night a week when
the managing editor was off, during his vacation periods, and when he
on occasion filled the position of editor. While substituting for the
managing editor Hershdorfer had supervision over City Editor Oliver.
We are of the opinion that Hershdorfer, like Oliver, is a representative
of management and should be excluded from the unit.
We do not agree with the Trial Examiner's exclusion of employees
Laura Ivins and Thomas Berry from the unit. Ivins and Berry are
employed on a regular, part-time basis by the respondent. Ivins has
been so employed since 1926, and Berry since 1940. Both of these em-
ployees perform specified duties and receive a fixed weekly salary. Ivins
furnishes daily copy for the respondent's food page; and Berry devotes
approximately 12 to 15 hours each week, covering sports assignments
for the respondent. We are of the opinion that Ivins and Berry have
a substantial interest in the selection of a bargaining agent for the re-
spondent's editorial department employees. We shall include them in
the unit .3
We therefore modify the unit established by the Trial Examiner to
exclude Leo J. Hershdorfer and to include Laura Ivins and Thomas
Berry.
In addition to modifying the Trial Examiner's determination of
the unit, we reject his conclusion with respect to the membership ap-
plication card bearing the name of "Michael Scanlon," which was sub-
mitted by the Union in support of its claim of majority representation.
We believe that the testimony of Edward Michael Scanlon raises grave
loubt as to the card's authenticity and renders it unreliable evidence of
Scanlon's authorization of the Union as his bargaining agent. We shall
not count the Scanlon card in determining the Union's majority status.
On January 26, 1945, the date upon which the Trial Examiner finds
that the respondent refused to bargain with the Union, there were 41
employees in the unit which we find to be appropriate. The Union
has submitted proof of representation for only 20 of these employees.
Since the evidence fails to establish that the Union represented a majority
of the employees in the appropriate unit on January 26, 1945, we find
that the respondent was under no obligation to bargain with it as exclu-
sive representative of the editorial department employees and has not
violated Section 8 (5) of the Act.
3 We agree with the Trial Examiner that employee Carlos Martin should be included in the
unit.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Hudson Dispatch, Union City,
New Jersey, and its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Hudson County Newspaper Guild,
affiliated with American Newspaper Guild, C. I. 0., or in any other
labor organization of its employees, by discharging or refusing to re-
instate any of its employees or by discriminating in any other manner
in regard to the hire and tenure of their employment, or any term or
condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Hudson County Newspaper Guild,
affiliated with American Newspaper Guild, C. I. 0., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to James Allan immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority and other rights and privileges ;
(b) Make whole James Allan for any loss of pay he may have suffered
by reason of the respondent's discrimination against him, by payment to
him of a sum of money equal to the amount which he normally would
have earned as wages from the date of the discrimination to the date
of the respondent's offer of reinstatement, less his net earnings during
said period ;
(c) Post immediately at its office at Union City, New Jersey, copies of
the notice attached hereto, marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Second Region,
after being duly signed by the respondent's representative, shall be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material:
HUDSON DISPATCH 119
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent has refused to bargain within the meaning of Section 8
(5) of the Act, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National. Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations'Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Hudson County News-
paper Guild, affiliated with American Newspaper Guild, C. I. 0., or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of pay suffered
as a result of the discrimination.
JAMES ALLAN
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
HUDSON DISPATCH,
Employer.
Dated ......... ..............
By ............... .......
Representative Title
NOTE. Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement upon
application in accordance with the Selective Service Act after discharge
from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Daniel Baker, for the Board.
Mr. Elisha Hanson, of Washington, D. C., for the respondent.
Mr. Morris Isserman , of Isserman, Isserman , & Kapelsohn, Newark, N. J.,
and Mr. Charles E. Crissey, New York, N. Y., for the Guild.
STATEMENT OF THE CASE
Upon a second amended charge, duly filed by Hudson County Newspaper Guild,
affiliated with American Newspaper Guild, C. 1. 0., herein called the Guild, the
National Labor Relations Board, herein called the Board, by the Regional Director
for the Second Region (New York, New York), issued its complaint dated May
17, 1945, against Hudson Dispatch, Union City, New Jersey, herein called the re-
spondent, alleging that the respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) crf the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, together with notice of hearing thereon, were duly
served upon the respondent and the Guild.
With respect to unfair labor practices, the complaint alleges in substance that
the respondent: (1) from on or about November 1941, to date, has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act; (2) on or about January 19, 1945, did discharge James
Allan and Melvin Greene and did fail and continues to refuse to reinstate them
because of their union activities; and (3) did fail and refuse to bargain in good
faith with the Guild as the designated collective bargaining representative of its
employees in an appropriate unit.
Respondent, prior to the hearing, filed its answer verified May 24, 1945. The
answer, in substance, dcnies the -commission of any unfair labor practices, alleges
that Allan and Greene were discharged for cause, and further alleges that the
Guild never furnished proof that it represented a majority of employees in an
appropriate unit.
Pursuant to notice, a hearing was held at New York, New York, from July 10
through July 18, 1945, before the undersigned Sidney L Feiler, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and respondent were
represented by counsel, and the Guild by counsel and a representative. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties . At the close of the Board's
case, counsel for the respondent made motions to dismiss the allegations of unfair
labor practices contained in the complaint. The motions were denied. After the
close of respondent's case, the motions were renewed. Decision was reserved.
These motions are denied except as hereinafter indicated. After the presentation
• of all the evidence, counsel for the Board moved to amend the complaint as to
formal matters. This motion was granted , without objection, as to all pleadings.
Oral argument then was presented on behalf of all parties . Counsel stated that
no briefs would be filed
HUDSON DISPATCH 121
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New Jersey corporation with its principal office and place of
business in Union City , New Jersey. At all times hereinafter mentioned it has
been the owner and publisher of a daily newspaper known as "Hudson Dispatch "
Respondent annually purchases newsprint valued in excess of $50,000, all of
which is shipped to respondent 's place of business in Union City, New Jersey, from
points outside the State of New Jersey.
Respondent holds a membership in the Associated Press . Associated Press dis-
patches constitute the source of approximately 20 percent of the news stories
published daily in its newspaper . Respondent furnishes the Associated Press at its
Newark, New Jersey, office news stories originating in the area of principal dis-
tribution of the "Hudson Dispatch."
Approximately 10.8 percent of the daily advertising published in the "Hudson
Dispatch" is placed with respondent by advertising agencies located outside the
State of New Jersey. Respondent 's revenue in 1944 from such advertising totalled
$47,482 .46. Approximately 8 percent of all material published originates outside
of New Jersey . Approximately 2 percent of the total daily "Dispatch 's" circula-
tion of 29,905 is distributed outside the State of New Jersey. Respondent concedes
that it is subject to the jurisdiction of the Board.
II. THE ORGANIZATION INVOLVED
Hudson County Newspaper Guild, affiliated with American Newspaper Guild,
C. I. 0., is a labor organization admitting to membership employees of the re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A Interference, restraint, and coercion
The most recent Guild campaign to organize employees of the respondent com-
menced in the fall of 1944 In January, 1945, organizational meetings were held
and Guild members formed a Hudson Dispatch Unit of the Hudson County News-
paper Guild . At a meeting held on January 12, officers were elected and it was
decided that a demand for bargaining rights should be presented to respondent
A letter to this effect, hereinafter discussed, was sent to respondent by the Hudson
County Newspaper Guild on January 13.
John Mitchell was then and still is editor of the "Hudson Dispatch " in charge
of the Editorial Department and with full authority to hire and discharge em-
ployees The Board introduced the testimony of a group of witnesses who had
been employed by respondent during the organizational campaign . They testified
as hereinafter set forth, concerning conversations that they had had with Mitchell
concerning the Guild and their membership therein.
Albert G. Carter testified that he was hired by Mitchell and started work on
November 13, 1944, that Mitchell asked him at that time whether he was a member
of the Guild, and that when he answered in the negative, Mitchell replied, "that is
good." At the end of November 1944, Mitchell again quizzed him concerning his
Guild membership , Carter testified , and also told him that the Guild had caused
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trouble during a prior organizational campaign , that he did not want the Guild,
and that if Carter joined the Guild he should leave the paper because Mitchell
did not want him to work for the paper if he joined Mitchell again quizzed Carter
concerning Guild membership on January 17, 1945, and on a later occasion.
Catherine Jahrling, social editor, testified as follows. In 1939 Mitchell queried
her as to her feelings about the Guild. She replied that she did not know what
it was. Mitchell then asked her whether anyone had approached her Again she
replied in the negative. Miss Jahrling further testified, "He [Mitchell] named
members of the staff who were members of the Guild and those who were not and
he told me that I should associate with the ones that were not and not with
the others."
Miss Jahrling testified that she had further talks with Mitchell concerning the
Guild in January 1945, and that on January 17 Mitchell asked her whether any of
the members of her staff were members of the Guild. When she replied that she
did not know, Mitchell asked her to find out Mitchell later asked her if she had
found out the affiliation of her staff. She replied in the negative and suggested
another method by which Mitchell might obtain the information he desired This
method will be discussed hereinafter.
Miss Jahrling concluded her testimony by stating that on January 19, Mitchell
told her that he had heard that she was no longer "in his corner," that he refused
to believe it, that "There are some people that you just don't believe things like
that about," that if he could not "trust" her and certain other employees, whom
he named, he would lose all faith in humanity. He gave her a salary increase at
that time and promised her more money later on,
Eugene F. Burke testified that on January 17, Mitchell summoned him to his
office and told him that the Guild was beginning organizational activity, that it had
made a similar attempt several years previously, and that "They almost broke up
our family but of course we stopped them" Burke further testified that Mitchell
then told him, "If you wish to join the American Newspaper Guild give me enough
warning and then join it on another newspaper." Mitchell also told him, Burke
declared, that if the Guild became collective bargaining agent for the employees
and obtained a contract the competent employees would have to "carry" the less
competent and that undeserving employees would receive better positions and salary
increases Burke further testified that approximately two months after the
January 17 conversation, Mitchell quizzed him concerning the Guild membership
of another employee.
Eilene Gately testified that when Mitchell hired her in February 1943, he asked
her whether she was a member of the Guild, but dropped the subject when she
indicated that she did not know anything about it
Ora Harvey testified that on January 23, 1945, Mitchell called her into his office
and said to her, "Miss Harvey, I don't want to insult you but I want to know how
I stand I want to know whether you will support me in an election " Miss Harvey
further testified that she told Mitchell that she was not a member of the Guild, that
Mitchell replied that that was good and that he did not want "that type" working
for respondent and that respondent did not want the C I O. telling it what to do.
Edna E. Bell also testified concerning conversations she had with Mitchell. She
testified that when Mitchell hired her in June 1941, he asked her whether she was
a member of the Guild, that when she replied in the negative and asked whether
she should be, Mitchell replied that he would rather she were not and that if
she did join he did not want her to work for the newspaper.
Mrs. Bell further testified that on January 22, 1945, Mitchell told her that he
HUDSON DISPATCH 123
did not want the Guild in the office because it would cause dissension among the
staff and that he wanted an election but did not think the Guild would agree to it.
He concluded by asking her whether she was with him. She indicated that she was.
Mitchell did not testify. The testimony of the witnesses Carter, Jahrling, Burke,
Gately, Harvey, and Bell is credited.
Employees Alfred M. Silberfeld and Eugene F. Burke testified as hereinafter
set forth concerning remarks that City Editor Oliver had made to them concerning
the Guild.'
Silberfeld testified that shortly after the date of Allan's discharge (January 19,
1945), Oliver showed him a blank Guild membership card and asked him whether
he had signed one or been solicited to sign. When Silberfeld replied that he had
been approached, Oliver told him to keep out of it, that respondent had had a lot
of trouble with the Guild during its previous organizational drive, and that it was
"no damn good."
Burke testified that on January 18 Oliver made the same remark to him concern-
ing the Guild and added that he (Oliver) had suffered several years of hell while
a member of that organization.
Oliver testified at the hearing but made no effort to refute the testimony of
Silberfeld and Burke. Their testimony is credited.
The undersigned finds and concludes that by Mitchell's campaign of disparage-
ment of the Guild, his probing into the Guild affiliation of respondent's employees,
his deliberate efforts to make non-membership in the Guild a test of loyalty of the
employees,2 his thinly veiled threats to discharge those who joined the Guild, and
by other activities of Mitchell and Oliver heretofore discussed, respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. Alleged interference, restraint, and coercion : The Tenure Club
The Board and the Guild contended that respondent had made use of the Tenure
Club to halt the organizing drive by the Guild.
The Tenure Club had its antecedents in the Ten-Year Club. The Ten-Year Club
was organized on November 28, 1936. The leader in its organization and its
president during its existence was John Mitchell, then managing editor. The
Ten-Year Club admitted to membership employees in the Editorial Department
of the "Hudson Dispatch" with ten years' service. Later, that requirement was
reduced to five years. The Club acted as a labor and social organization.3
In the spring of 1939, the Ten-Year Club was organized primarily as a result of
complaints that it was a company -dominated labor organization. Managing Editor
I Oliver's supervisory status is in issue. This question is discussed in detail hereinafter. The
undersigned has concluded that Oliver had and still has supervisory status at all times relevant
herein.
2 Reliance Manufacturing Company, 143 F (2d) 761 (C C. A. 7), Republic Aviation Corpora-
tion, 61 N. L. R B. 397.
8 The Ten-Year Club was organized during a Guild campaign to unionize employees of
the respondent. During this campaign , charges of unfair labor practices were filed by the Guild
against respondent . These charges were investigated by the Board, but a complaint was never
issued. Counsel for the Guild stated that the proceedings were dropped at the request of
the Guild.
Counsel for the Board sought to develop in detail the activities of the respondent which
were the subject of the prior charges on the theory that respondent had been guilty of
unfair labor practices and that its activities in that campaign were relevant and material in
the consideration of the present case. The activities on which he sought to enlarge had ended
in 1939 except for the Ten-Year Club and its successor, the Tenure Club. The offer of proof
was rejected except for activities which continued until the present organizational drive
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell resigned. The name of the organization was changed to the Tenure Club
and membership was opened to members of the Editorial Department except the
editor and managing editor. Otherwise, the Club continued to function as a social
and collective bargaining organization. By letter dated August 17, 1939, respondent
informed Bruce Cook, president of the Tenure Club, that respondent could no
longer recognize the Club for bargaining purposes. Thereafter, the Club became a
purely social organization.
The Tenure Club became moribund during the war years. Even its annual dinner
was discontinued. However, in the spring of 1945 a drive was begun for new
members and a dinner was held on May 12, 1945.4 Mitchell took a leading part
in arranging the program and was one of the speakers. He also sought to stimulate
the Club's membership drive during that period.
Counsel for the Board and the Guild contended that the renewed activity on
behalf of the Tenure Club and Mitchell's participation therein evidence an intent
on the part of respondent to use the Tenure Club to fight the Guild and to interfere
with the organizational activity among its employees. In this connection, Catherine
Jahrling, social editor, testified that after Mitchell had repeatedly quizzed her
concerning the Guild affiliation of her staff, she suggested that he ask those
employees whether they were members of the Tenure Club, and that Mitchell
nodded his head in assent.b
The undersigned finds that the evidence is insufficient to sustain the contention
that respondent used the Tenure Club to interfere with the organization of its
employees by the Guild. The activities of the Tenure Club in recent years were
purely social. Guild members took an active part in its activities, particularly
in arranging for the dinner in May 1945. Employees did not have to choose
between membership in the Guild or the Tenure Club. There is abundant evidence
that employees participated in the activities of both organizations with no feeling
of divided loyalties.
C. The discriminatory discharges
James Allan was employed by the respondent from May 1944 until January 19,
1945. He was first assigned to work as a reporter. In June, City Editor Oliver
praised his work and gave him the opportunity of learning the work of various desk
positions. He spent several weeks working at the rewrite desk revising and rewriting
news stories and performing special assignments. He then spent several weeks
learning the work at the telegraph desk, the assistant city editor's desk, and the
assistant Bergen County editor's desk.?
* These findings are based on the testimony of Nannette Spranger, secretary of the Tenure
Club.
0 When the Ten-Year Club and the later Tenure Club sought to act as collective bargaining
agents, the Guild ordered its members to withdraw from membership in those organizations.
There is no evidence that the ban was continued when the Tenure Club changed to a purely
Social Club.
"The findings in this section are based primarily upon the testimony of James Allan which
was corroborated by other witnesses for the Board . Respondent did not present any witnesses
on this phase of the case. Much of the factual backgiound was undisputed.
T At the telegraph desk, Allan's duties were to handle press service material, cut it to size,
and write captions, i.e. "heads" for the stoi ies
At the assistant city editor's desk, Allan's duties were to read and write copy, write heads,
edit readers' letters and write heads for the stories , and give directions to reporters in the
absence of the city editor.
In addition to the regular edition for Hudson County, respondent publishes a special Bergen
County Edition. Allan's duties at the assistant Bergen County editor's desk were substantially
similar to his work at the assistap t city editor's desk.
HUDSON DISPATCH 125
After his training period, Allan regularly spent I or 2 days a week at the tele-
graph desk and divided the rest of his time at work at the assistant city and the
assistant Bergen County desk.8 He was working on this schedule at the date of
the termination of his employment.
There is abundant testimony that Allan's work was praised by his supervisors.
Employee Alfred M Silberfeld testified that in June 1944, he had remarked to City
Editor Oliver that Allan had advanced rapidly and that Oliver had replied
"He is all right; you keep your eye on him; he is a good man." Silberfeld also
testified that during the winter of 1944, Managing Editor Cook had spoken to him
concerning Allan and had praised him. Employee Eugene F. Burke testified that
on several occasions City Editor Oliver had praised Allan's work, especially heads
which he had written. Employee Ora Harvey also testified that Oliver had praised
Allan's work. Former employee Edna Bell testified that in December 1944, Manag-
ing Editor Cook remarked to her that he would rather be training a man like Allan
than ten of "the other type," that Allan was capable. The testimony of witnesses
Silberfeld, Burke, Harvey, and Bell was not contradicted and is credited.
Respondent contends that Allan was discharged for cause and not for any union
activities. Counsel for respondent gave the following itemization of the reasons
for the discharge:
1. That Allan exaggerated his past experience in his application for a position
with respondent.
2. That Allan resented criticism.
3. That Allan slanted stories.
4 That Allan was antagonistic to the editorial policy of respondent and criticized
it in letters to the newspaper under an assumed name.
5. That Allan played down a story instead of playing it up.
6. That Allan made a mistake as to the date of a memorial service for an army
officer and at first denied having made the mistake but later admitted it.
The evidence concerning these grounds indicates the following:
1. Allan's experience
Allan admitted that he had puffed his experience and misstated it in order to
obtain a position with respondent. However, respondent was unaware of these
misstatements until after the discharge. Counsel for respondent stated later in the
hearing that these misstatements were not relied on by respondent as one of the
reasons for the discharge, but maintained that this evidence went to Allan' s veracity
as a witness.
2. Allan's reaction to criticism
The evidence indicates that Allan had a normal reaction to criticism. When his
work was criticized he attempted to justify his actions, but there was nothing
unusual in his attitude.
3. The alleged slanting of stories
This contention of respondent was related to the so-called Hirohito and Stettinius
stories . In December 1944 Allan wrote the following head for a news item con-
cerning the Japanese Emperor : "Saving a 'hot seat' for the 'Son of God'." Mitchell
criticized the reference to Hirohito as "Son of God" as blasphemous. On January
19, 1945, Allan wrote a head "Me too !" for a story concerning the intention of
" In October or November, 1944, Allan acted as Bergen County editor during the vacation
of the regular editor and supervised the work of 5 or 6 reporters and 4 to 6 correspondents.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Secretary of State Stettinius to attend a conference . Mitchell criticized the head
as "too editorial and taking a crack at Stettinius."
4 Allan's attitude toward the editorial policy of the paper
Allan admitted being in disagreement with the editorial policy of the newspaper
with respect to certain aspects of foreign policy. He admitted writing letters to the
editor under the assumed name of Janet O'Keefe. These letters, after having been
approved for publication by Mitchell, were published in the "Dispatch." Allan
never revealed to his superiors the fact that he was writing those letters. However,
the testimony indicates that at least one letter under the O'Keefe name was pub-
lished after Allan's discharge It is clear that respondent did not know that Allan
was the actual author of the letters at the time of his discharge. Therefore, this
activity could not have played a part in respondent's decision to terminate Allan's
employment Counsel for respondent, in his summation , contends that Allan's
conduct affected his veracity as a witness.9
5. The allegation that Allan played down a story instead of playing it up
This refers to Allan's failure to emphasize in a head the fact that a city council
of the New Jersey Governor's own political faith had opposed his stand on a tax
issue and had adopted the position advocated by the respondent. This occurred on
January 17, 1945. Allan's explanation for his treatment of the story was that he
felt that there had been sufficient emphasis of the tax item in other stories appearing
in the newspaper in that same issue and in other issues
6 The story concerning the memorial service
This item appeared in the January 16 issue. An incorrect date had been published
in the newspaper concerning the memorial service for a deceased officer. The
correct information was thereafter printed under the head "correction." According
to Allan's uncontradicted testimony, winch is credited, he had nothing to do with
the original story ; his sole connection with the matter was to write the head
"correction" to the later notice However, after the correction story appeared,
employee Schaefer showed Allan a note from Mitchell stating: "Allan: Did you
handle? Mitchell". Under it the word "No" appeared and below that the words
"Who did? Mitchell." Schaefer said that he had written the word "no" on the
note. Allan thereupon crossed out the word "no" and wrote "yes" and returned it.
He testified that he meant to indicate only that the story had crossed his desk.
Mitchell made no further investigation of the matter
In addition to the matters above mentioned, respondent during the hearing
placed reliance on other matters as justifying the discharge of Allan. One of these
was the treatment of the Haff story. In November 1944, George 0 Haff, president
of the Guild, as the driver of an automobile, had been involved in an accident in
which a man was killed When the story appeared in respondent's newspaper, Haff's
name appeared with no mention of his position in the Guild. It was originally con-
tended on behalf of respondent that this was a deliberate omission, for which Allan
was responsible Allan testified that he did not have any such motive and the
evidence clearly indicates the contrary
L The findings in this section of the report are not based upon Allan's sole testimony.
In many important respects his testimony was corroborated by other witnesses. In many
other respects, the facts are not in dispute. Respondent presented no witnesses to challenge
any of the testimony of the witnesses presented by the Board in support of the allegation
concerning Allan's discharge
HUDSON DISPATCH 127
Another instance occurred in October or November 1944 when Allan substituted
for the Bergen County editor during the latter's vacation. Mitchell informed him
at that time that he had received complaints that Allan slashed copy of the
reporters too much and that he was rude in that he addressed reporters by their
last names. Mitchell asked Allan to ease up on his criticism of copy and to address
reporters in a more formal manner. Allan obeyed these instructions
On January 18, 1945, Allan used the term "G.I." in referring to allied soldiers
who were not members of the Army of the United States This use of the term
was criticized by Mitchell.
At the time of his discharge Allan was taking a leading part in the Guild cam-
paign . He had been a leader in reactivating the Guild and had begun efforts to
reestablish the Hudson Dispatch Unit in the fall of 1944. On January 12, 1945, he
had been elected president of the unit. At that same meeting the unit voted that
a demand for collective bargaining rights be sent to respondent. Such a letter was
sent by the Guild on January 13, and it was received by respondent on January 15,
4 days before Allan's discharge.
Concluding findings
The evidence reveals that Allan was regarded as a highly satisfactory employee
and treated as such until the last week of his employment. He had quickly advanced
from the position of reporter to one involving higher responsibility. He had received
little criticism and this criticism must be evaluated with due consideration of the
fact that Allan's work required him to write 40 to 50 heads each day. Allan
testified, and it was not contradicted, that he was not the only recipient of Mitchell's
criticism and that the latter often found more to criticise in the work of others
This testimony is credited. It is also worthy of note that respondent never clearly
indicated to Allan that his work was unsatisfactory to the extent that he might be
discharged. The discharge itself came without warning.
There was a significant increase in the number of heads singled out for criticism
in the last week of Allan's employment. In fact there were more such cases than
the total of all items previously criticised. This increasing dissatisfaction with
Allan's work occurred immediately after the Guild's demand for bargaining rights
had been received by respondent and after Allan had assumed open leadership in
the Guild unit established at respondent's offices. In view of Mitchell's dislike of
the Guild and his campaign of questioning employees concerning Guild activities
and the membership of employees therein, it is more than likely that Allan's
connection with the Guild had come to his notice. There also is testimony by Allan,
which the undersigned credits, that on Tuesday, January 16, another reporter called
out to Allan, "Hey Jim, Joe Haff of the Newspaper Guild called you and he wants
you to call him back." Allan further testified that Managing Editor Cook was
sitting 10 or 15 feet away from the place where this remark was made and that
he looked up.10
Allan's work only came into real disfavor after the Guild came out into the open
under his leadership. Respondent's charges against Allan in connection with his
puffing of experience and his writing of the O'Keefe letters were matters which
it discovered after his discharge. Its contentions concerning Allan's treatment of the
Haff stories, his reaction to criticism, and his treatment of the memorial service
story were not sustained by evidence. The remaining items for which Allan was
"Allan testified that sometime after his discharge he handed a Guild leaflet to Cook, Cook
criticised the leaflet in a derogatory manner and told Allan "You know, you don't understand
us upstairs, Allan, otherwise you would never have done what you did."
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criticised are minor in character when considered against the background of his
long period of satisfactory, even outstanding, performance. He never received any
warning that respondent was contemplating his discharge nor was he offered any
further employment even though the testimony clearly establishes the fact that
he was a competent reporter and respondent was suffering from a heavy labor
turn-over. In view of these factors and respondent's established antipathy to the
Guild, the undersigned concludes and finds that Allan was discharged because of
his union activities.
D. The alleged discriminatory discharge
Melvin Greene was first employed by respondent on January 31, 1943. He began
working as a general news reporter. After 6 months he was transferred to the
Sports Department where he continued working until the date of his discharge,
January 19, 1945.
There is no dispute as to the character of Greene's work. He was often criticised
by the Sports Editor, Ludwig Shabazian, and much of his material had to be
rewritten either by Shabazian or other employees in the department.
Greene also committed certain acts for which he was severely criticized. During
the football season in the fall of 1944 he overstayed leave without communicating
with Shabazian. Shabazian, who had the right to hire and fire in the Sports
Department, warned Greene he would discharge him for a repetition of this
offense."
At the close of 1944, Greene and another employee were assigned to prepare
an annual sports review. Material for the review was obtained from previous
material published in the sports columns of the "Dispatch." When the review was
published it was discovered that the activities of a boxer of some local prominence
had been completely omitted. Shabazian blamed Greene for this omission although
Greene maintained that the error could have been made by the other employee
who prepared the material with him.
Greene's most serious dereliction occurred in connection with a local basketball
tournament. This tournament took place during the week preceding Greene's dis-
charge. Shabazian assigned Greene to cover the entire tournament. Greene covered
the first game of the tournament on Monday, January 8. Shabazian was dissatisfied
with his report of that game, Greene also wrote a report of the semi-final game
of the tournament on Wednesday, January 10. Shabazian again was dissatisfied
with his work. On Friday, January 12, Greene failed to submit a box score for the
final game in violation of instructions.
The final game of the tournament took place on Saturday, January 13. Greene
testified that he had not been specifically assigned to cover the final game.
Nevertheless, he intended to do so, but was prevented from appearing because of
his wife's illness. Shabazian's testimony that Greene had been assigned to cover
the entire tournament including the final game is credited On Sunday evening,
January 14, Shabazian asked Greene for the story of the game. Greene replied
that he was awaiting a telephone report from a scholastic correspondent whom he
had assigned to make the report. Shabazian then determined to discharge Greene
but did not tell him about his decision. On Friday, January 19, Shabazian dis-
charged Greene and told him that he was doing so because he deliberately did not
cover the assignment. Reporters Victor Lane and Richard Duff, who were present,
testified that Greene said that he expected the discharge and mentioned efforts
" This finding and other findings concerning the events leading up to discharge of Greene
are based primarily on Shabazian 's testimony which the undersigned credits.
HUDSON DISPATCH 129
he had made to obtain a position on another newspaper. Their testimony is
credited.
Counsel for the Board and the Guild did not question Shabazian 's evaluation
of Greene's work, nor did they question the fact that Greene merited discharge.
Their position, in summary, was that Greene had been an unsatisfactory employee,
according to Shabazian, for about a year and a half and that he had been guilty
of serious breaches of duty but had been retained. He was only discharged after
the Guild campaign gained headway. Greene was a member of the Guild. He
testified that he had spoken to quite a few employees about the Guild and that
these conversations had occurred during the course of his employment, particularly
during the period when the Guild was becoming reactivated. This testimony is
credited. It is undenied that Shabazian knew of Greene's affiliation as early as
March, 1944, when Shabazian helped Greene prepare an income tax return in which
his Guild membership was mentioned. Shabazian denied that he had ever informed
Mitchell of Greene's affiliation. He also denied that Mitchell had anything to do
with Greene's discharge and testified that Greene was discharged by him because
of his work and not his Guild activity.
The undersigned has credited Shabazian's testimony. It is clear, straightforward
and detailed. While Shabazian discharged Greene at the height of the Guild cam-
paign, the undersigned concludes that Greene's work in connection with the
basketball tournament plus the general character of his work caused the discharge.
There is no evidence to indicate that Shabazian was actuated by any anti-Guild
bias, nor is there any evidence that Mitchell had any part in effecting the discharge.
The undersigned finds and concludes that Greene was not discharged because of
his Guild affiliation or activities.
E. The-refusal to bargain collectively
1. The appropriate unit
It. was stipulated that all employees of the Editorial Department of the "Hudson
Dispatch," with certain exclusions hereinafter discussed, constitute a unit appro-
priate for the purpose of collective bargaining. It was further stipulated that the
editor, managing editor, sports editor, part-time occasional library clerk, part-time
messenger boy and county correspondents, should be excluded from the unit.
There was disagreement as to the inclusion of 4 employees ; Laura Ivins, Thomas
Berry, Carlos Martin, and Francis Oliver. County correspondents were not included
on the regular pay roll of the Editorial Department.
Laura Ivies. Laura Ivins has been employed by respondent since 1926. She writes
material for the food page. For 5 days of the week her material is less than one
column . On the sixth day she submits sufficient copy to complete a full page with
the addition of advertisements. She receives a salary of $35.00 per week.
Miss Ivins conducts an advertising agency in Jersey City. She does not prepare
her material at respondent's office. Her material is collected by a messenger. She
has no regular hours nor is she required to appear at respondent's office.
Respondent contends that Miss Ivins should be included in the unit. The Board
and the Guild would exclude her. Since her interest and working conditions differ
substantially from those of regular full-time reporters she will be excluded from
the unit.12
Thomas Berry. Thomas Berry is employed as a part-time sports writer. He
receives assignments to cover specific events. He works approximately 12 to 15
10
'" Matter of Worcester Telegram Publishing Company, Inc ., 61 N. L. R. B. 1118.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours each week and receives a fixed salary of $20 00. He also has a full-time
position with an auditing concern. Respondent contends that Berry should be
included in the unit. The Board and the Guild contend that he should be excluded.
Since his interests differ substantially from those of the regular employees and his
main interest is in another field, Berry will be excluded from the unit
Carlos Martin. Martin is employed as a sports writer. He works approximately
30 hours each week and receives a weekly salary of $38.00. He reports to
respondent's office each day In addition to his work for respondent, Martin has a
full-time position with the U. S. Government. Respondent desires that Martin be
included. Counsel for the Guild objected to his inclusion, but later withdrew the
objection. Counsel for the Board did not take a definite stand.
Although Martin has a full-time job elsewhere, his hours constitute a substantial
part of a regular work week His interests are similar to those of the regular
full-time employees He will be included in the unit
Francis Oliver.13 Francis Oliver is employed as city editor. His direct super-
visor is the managing editor. His duties are to review copy, edit it, put appropriate
heads on the copy, instruct reporters as to the fulfillment of assignments ; i. e,
instruct them as to the manner of writing stories and to obtain additional informa-
tion when deemed necessary. Oliver is also in charge of checking the final proof
of the paper to make sure that it is made up properly.
Oliver does not give reporters their original assignments He does, however, issue
supplemental instructions to them. Managing Editor Cook and Editor Mitchell are
his superiors Usually, they have left respondent's offices between 1.00 and 2:00
a. m. From that time until the paper goes to press at 2:15 a. m, Oliver is in charge
of the office and can assign reporters to cover any stories that arise during that
period
Approximately 10 reporters submit copy to Oliver, who edits their work with the
assistance of an assistant city editor. He has no power to hire or discharge
employees. He does make comments on their work to his superiors These comments
have been frequent. Oliver receives a salary substantially in excess of that of
regular reporters, but not in excess of the compensation received by certain
specialty writers employed by respondent,
Oliver's work is closely identified with management. Although he does not have
the power to hire or discharge employees it is clear that he does supervise the
work of reporters and that his directions are obeyed It is also clear that he has
power to make recommendations and suggestions concerning reporters, and that
these are given weight by his supervisors He will be excluded from the unit.14
The undersigned finds that all employees of respondent employed in its Editorial
Department, including employee Carlos Martin, but excluding the part-time
occasional library clerk, part-time messenger boy, county correspondents, employees
Laura Ivins, Francis Oliver, and Thomas Berry, and the editor, managing editor,
sports editor, and other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees or effec-
tively recommend such action, at all times material herein constituted and they do
now constitute a unit appropriate for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours and other conditions of employment, and that
said unit insures to employees of the respondent the full benefit of their right to self-
13 The findings in this section are based upon testimony by Oliver.
14 Matter of East Shore Newspapers, Inc, 55 N L. R B. 993; Matter of The Brooklyn
Citizen, 52 N. L R B. 673.
HUDSON DISPATCH 131
organization and to collective bargaining and otherwise effectuates the policies
of the Act.
2 Representation by the Guild of a majority in the appropriate unit
Respondent's pay roll for the Editorial Department for the week ending January
19, 1945, reveals that as of that date there were 51 names on this pay roll The
deduction of the editor, managing editor, sports editor, part-time occasional library
clerk, part-time messenger boy, Laura Ivins, Francis Oliver and Thomas Berry
reduces the number in the appropriate unit on that date to 43 On that date,
2 employees, James Harrison and William Oriol, resigned; Melvin Greene, whose
case has previously been discussed, was discharged for cause, and James Allan,
whose case also has previously been discussed, was unlawfully discharged
On January 26, the pay roll included the same names as on January 19, with the
exception that Allan, Greene, Harrison and Oriol did not appear thereon Since
Allan was unlawfully discharged his name will be added to those in the appropriate
unit which thus consisted of 40. In support of the contention as to the majority
status of the Guild, counsel for the Board offered signed application cards for
membership in the Guild. They were received in evidence under the following
circumstances :
George Haff, president of the Guild, testified that he personally witnessed the
signatures to the following cards:15
7H-Alice M. Manning-dated 1/9/45
71-Leo J. Hersdorfer-dated 1934 (Hersdorfer later identified his own card
and testified that he had been a member of Guild since the date
indicated.)
7J-Jacob J. Kalter-dated 1934 (Kalter also identified his own signature and
testified that he had been a Guild member in good standing since the date
on his card.)
James Allan testified that he witnessed the signatures of the following em-
ployees 16
7B-Bill Tomforde-dated 1/9/45
7C-Harold Imperatore-dated 1/9/45
7D-Ora Harvey-dated Jan 9, 1945 (Miss Harvey later verified her signature )
7E-Albert G Carter-dated 1/9/45 (Carter also verified his signature )
7G-Joseph G. Kaminski-1/23/44
7P-Jerome Gale-dated 1/9/45
7Q-Irma Africano-dated 1/9/45
7W-Edna E. Bell-dated Jan. 9, 1945 (Mrs. Bell lated identified her card )
Allan had been a member of the New York Newspaper Guild. His membership
transfer card effective as of 2/1/45 is in evidence as 7T. However, it is clear
that he actively participated in the program of the Guild since the "Hudson Dis-
patch" Unit has been reactivated.
Mack L Shiffman verified his signature on card 7N dated 1/15/44. Shiffman
also testified that he witnessed the signatures on the following cards:
7M-Ruth Rosenbluth-dated 4/15/44
7S-Selma Cane-dated 4/15/44
15 Haff also identified card 7 K-Meyer Greenberg (Melvin Greene)-dated Jan 16, 1942
(Greene also verified his signature and testified that at all times relevant he was a member
in good standing in the Guild).
16 Allan also identified card 7 A-William E Oriol-dated 1/9/45.
696966-46-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morton H. Edwards verified his signature on Card 7L dated October 4, 1943, and
stated that he had been a Guild member for two years and was in good standing
in 1945.
William Poet testified that he had signed card 7V dated 1934 and that he had
been a member of the Guild for ten or eleven years. He also testified that he had
signed a card after Allan had been discharged, but he could not fix the exact date.
Kay Jahrling identified her signature on card 70 dated May 1944 and testified
that she had been a Guild member since May 19 of that year
Eugene Burke identified his signature and card 7X dated 10/14/44 and also
testified that he witnessed the signature of Georgina Zeller on card 7Y dated
1/1/1945.
Alfred M. Silberfeld verified his signature on card 7U dated December 3, 1944
Two other cards were received in evidence ; card 7R is the card of Kenneth
Lindsey, dated 5/15/43. Card 7F is the card of Michael Scanlon, which will be
discussed hereinafter.
An examination of the cards submitted reveals that in some instances the person
signing did not fill out the complete card. In some instances the date is not in the
handwriting of the person signing. In other cases, the card bears the date when
employees joined the Guild and not when the card was signed. However, of this
group, witness Haff testified that the cards of Leo Hersdorfer (71) and Jacob
Kalter (7J), both dated 1934, were signed before January 13. Allan testified that
the cards of Oriol (7A), Tomforde (7B), Imperatore (7C), Harvey (7D), Carter
(7E), Gale (7P), Africano (7Q) and Bell (7W) were all signed before January 15.
The testimony of witnesses Haff and Allan is credited. The undersigned con-
cludes from the evidence that all membership cards had been obtained before
January 26, 1945.
The sole controversy concerning the authenticity of any membership card is that
of card 7F, bearing the signature "Michael Scanlon." It bears the date January 12,
1945, and also bears the information that the application was received by Ken
Lindsey. Edward Michael Scanlan testified that he did not sign that card Lindsey
did not testify. George Haff, president of the Guild, testified that Lindsey delivered
the card to him on January 13. George E. Crissey, International Representative
of the American Newspaper Guild, testified that he spoke with Scanlon on January
13 with reference to his joining the Guild, and that at that time Scanlon informed
him that he had joined the Guild the day before.17
Scanlon denied that he had told Crissey that he had joined the Guild He testified
that he had merely indicated to Crissey that he was sympathetic with it and its
aims, but that he had not indicated that he had any immediate intention of joining
He admitted that he became a member. However he was unable clearly to recall
when he had joined He first testified that he joined several weeks after Allan left
respondent's employ, probably in March 1945. When he was shown a typewritten
reaffirmation of membership dated January 31, 1945, bearing his signature, he
testified that he had authorized Lindsey to state that he would join the Guild, that
he was not sure of the date when he had had that conversation with Lindsey, that
it could have been on January 12 or a month later, and that he was not sure of
the date. Scanlon's testimony was vague and confused It is clear that Scanlon
authorized Lindsey to express his adherence to the Guild. The undersigned credits
the testimony of witnesses Haff and Crissey and finds that this expression of loyalty
17 A copy of a letter which Crissey had sent Scanlan dated January 12, 1945, was intro-
duced into evidence. Crissey testified that after he had spoken with Scanlan he had made a
penciled notation appearing on the letter "EMS-Joined Guild Friday eve, January 12. CEJ."
HUDSON DISPATCH 133
was made on or about January 12, 1945, the date indicated on the membership
card. This card will be counted in the determination of the majority strength of
the Guild.
The undersigned finds that on January 26, 1945, the Guild represented 22 em-
ployees in the appropriate unit of 40, a majority.18
3. The refusal to bargain
On January 13, 1945, a letter was sent by the Guild to the respondent stating that
a majority of the employees on the editorial staff were members of the Guild and
requesting recognition of the Guild as bargaining agent. It is stipulated that this
letter was received by the respondent on January 15, and that no answer was
made to it.
On January 20, 1945, the Guild filed with the Board a petition for investigation
and certification of representatives and also an unfair labor practice charge in
connection with the discharge of Allan. A letter dated January 20, 1945, notifying
respondent of the filing of these documents was sent by a representative of the
Board to the respondent. In this letter respondent was requested to appear for a
conference scheduled for January 22. This conference was actually held on
January 26.
On January 23, four labor representatives, including Haff and Crissey, met with
Mr. Rubel, the publisher of the newspaper. They asked for reinstatement of Allan
and Greene and recognition of the Guild. Rubel replied that he could not take any
action because he had placed the matter in the hands of his attorney. He also
stated that he had not had time to answer the letter of January 13 before formal
papers were filed with the Board. No results were attained at this conference
On January 26, a meeting took place at the New York office of the Board It
was attended by Crissey and counsel for the respondent and the Guild.'° The
conference was mainly concerned with the question of the majority status of the
Guild. Counsel for the Guild suggested that the question be resolved by a card
check and produced membership cards. Counsel for respondent stated that he
would not accept a card check but would insist upon an election The parties then
proceeded to discuss the possibility of an election. There was discussion of a
proposed appropriate unit and agreement on some exclusions but disagreement on
others. An impasse was reached over the question of permitting Allan and Greene
to vote in the election. The conference then broke up.20 At the conclusion of the
conference the representative of the Board asked counsel for respondent to supply
pay-roll records and the social security cards of respondent's employees. These
were produced.
18 This computation does not include Greene and Oriol.
"The findings as to what took place at this conference are based upon the statements
of Crissey and the respective counsel. There was no fundamental disagreement among them
as to what transpired
'n Counsel for respondent strongly objected to receipt in evidence of testimony concerning
the conference of January 26, maintaining that this was an informal discussion to explore the
possibility of a settlement and should not be the basis of formal charges later on. The con-
ference was arranged by a representative of the Board as part of the established procedure
in investigating a petition for certification of representatives (Ninth Annual Report, National
Labor Relations Board, page 9) The chief purposes of such a meeting are to permit
the Board agent to obtain relevant information and ascertain the issues in dispute It is not
equivalent to a settlement conference between private litigants in a civil action. To refuse
to adm,t evidence of the transactions at such a conference would be wasteful and a disregard
of its purposes as envisaged by the Board.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •
On January 29, 1945, counsel for respondent addressed a letter to the Board in
which he stated that respondent was willing to enter into a consent election agree-
ment, and he discussed problems connected with the inclusion or exclusion of
certain employees. He also discussed respondent's position concerning the discharges
of Allan and Greene.
Concluding findings
On January 26, 1945, the Guild was in possession of membership cards signed by
a majority of respondent's employees in an appropriate unit. It was under a duty
to submit proof of such majority before respondent could be charged with a refusal
to bargain. Proof of majority may be demonstrated by some reasonable method.
A card check is recognized as such a reasonable method.21 Respondent refused
to submit to a card check but insisted upon an election.
If respondent had bona fide doubts concerning the majority status of the Guild
and was acting in good faith, its stand might not have been improper. However,
the circumstances in this case are entirely different. During the period when the
Guild was attempting to organize respondent's employees, Editor Mitchell was
engaged in a very active campaign to thwart its efforts. He not only disparaged
the Guild and quizzed his employees concerning membership therein, but he also
made it very clear that non-membership in the Guild was a test of loyalty, and
that membership in the Guild would not be tolerated and would lead to discharges.
A sufficient number of witnesses have testified to these remarks by Mitchell to
indicate that he had made his stand clear to most of the members of his relatively
small staff. In addition, the leader of the Guild, James Allan, had been unlawfully
discharged on January 19. Also, respondent, after receiving a communication from
the Guild requesting bargaining rights, made no effort to reply to this letter. To
hold, under these circumstances, that respondent was justified in insisting upon
an election would lead to the result that respondent would be allowed to reap the
benefits of its acts of bad faith and its efforts to dissipate the Guild majority. As
the Board has recently said, "We have frequently held that an employer cannot
be heard to say that he entertains an honest doubt of a union's majority status where
he conducts a campaign to destroy that majority."22
The uniersigned finds that on or about January 26, 1945, and at all times there-
after, the respondent refused to bargain collectively with the Guild as the exclusive
representative of its employees in the aforesaid appropriate unit, thereby interfering
with, restraining, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstruction
commerce and the free flow of commerce
21 International Assn. of Machinists , Tool and Die Makers , Lodge No. 35 v. N L. R. B,
311 U. S. 72; N L. R. B v. Bradford Dyeing Association , et al, 310 U. S. 318, N. L R. B v.
Dahlstrom Metallic Door Company, 112 F. (2d) 756 (C C A 2)
22 The Nubone Company, Inc., 62 N. L. R. B 322, see also Twin City Milk Producers
Association, 61 N. L. it B 69.
HUDSON DISPATCH
V. THE REMEDY
135
Since it has been found that the respondent has engaged in certain unfair labor
practices affecting commerce, the undersigned will recommend that it cease and
desist therefrom and take certain affirmative action to effectuate the policies
of the Act.
It has been found that the respondent has discriminated in regard to hire and
tenure of employment of James Allan. It will therefore be recommended that
the respondent offer him immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other rights
and privileges. It will be further recommended that the respondent make him whole
for any loss of pay that he may have suffered by reason of the respondent's
discrimination against him by payment to him of a sum of money equal to the
amount that he would have earned as wages from the date of the discrimination
against him to the date of the respondent's offer of reinstatement , less his net
earnings during said period.23
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Hudson County Newspaper Guild, affiliated with American Newspaper Guild,
C I 0., is a labor organization within the meaning of Section 2 (5) of the Act.
2 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3 By discriminating in regard to the hire and tenure of employment of James
Allan, thereby discouraging membership in Hudson County Newspaper Guild,
C I O , respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
4. All employees of respondent employed in its Editorial Department, including
employee Carlos Martin, but excluding the part-time occasional library clerk,
part-time messenger boy, county correspondents, employees Laura Ivins, Francis
Oliver, and Thomas Berry, and the editor, managing editor, sports editor, and
other supervisory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
5 Hudson County Newspaper Guild, C I. 0, was on January 26, 1945, and at
all times thereafter has been and now is the exclusive representative of respondent's
employees in such unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act
6 By refusing on January 26, 1945, and at all times thereafter, to bargain collec-
tively with Hudson County Newspaper Guild, C I. 0., as the exclusive represen-
tative of its employees in the appropriate unit, respondent has engaged in and is
$3 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, mcurre^t by an employee in connection with obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere See Matter of Crossett
Lumber Company, 8 N. L. R B 440 Monies received for work performed upon Federal, State
county, municipal, or other work-relief projects shall be considered as earnings . See Republic
Steel Corporation v. N. L. R. B., 311 U. S 7.
136 DECISIONS OF NATIONAL LABOR RELA11ONS BOARD
engaging in unfair labor practices within the meaning of Section 8 (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and (7) of the Act.
8 The respondent by discharging Melvin Greene has not engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that Hudson Dispatch, its officers, agents, successors and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Hudson County Newspaper Guild,
affiliated with American Newspaper Guild, C. I. 0., as the exclusive representative
of its employees in the unit heretofore found appropriate with respect to rates of
pay, wages, hours of employment or other conditions of employment.
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organizations,
to join or assist Hudson County Newspaper Guild, affiliated with American News-
paper Guild, C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the purposes of the Act:
(a) Offer to James Allan immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges.
(b) Make whole James Allan for any loss of pay he may have suffered by
reason of respondent's discrimination against him by payment to him of a stem
of money equal to the amount he would normally have earned as wages from the
date of the discrimination to the date of respondent's offer of reinstatement, less
his net earnings during said period.24
(c) Upon request, bargain collectively with Hudson County Newspaper
Guild, affiliated with American Newspaper Guild, C. I. 0., as the exclusive
representative of all employees of respondent employed in its Editorial Department,
including employee Carlos Martin, but excluding the part-time occasional library
clerk, part-time messenger boy, county correspondents, and employees Laura Ivins,
Francis Oliver and Thomas Berry and the editor, managing editor, sports editor,
and other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effectively
recommend such action, in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
(d) Post immediately at its office at Union City, New Jersey, copies of the
notice attached to the Intermediate Report herein, marked "Appendix A." Copies
of said notice to be furnished by the Regional Director of the Second Region, after
being duly signed by the respondent, shall be posted by the respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to. employees are
customarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material.
=' See footnote 23, supra.
HUDSON DISPATCH 137
(e) Notify the Regional Director of the Second Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply herewith.
It is further recommended that unless the respondent notifies said Regional
Director in writing within ten (10) days from the receipt of this Intermediate
Report that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the complaint, insofar as it alleges that the
respondent discriminated in regard to the hire and tenure of employment of
Melvin Greene, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such a statement of exceptions and/or
brief, the party or counsel for the Board filing same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to argue-
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the Board.
SIDNEY L. FELLER,
Trial Examiner.
Dated October 16, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Hudson County Newspaper Guild, affiliated with American
Newspaper Guild, C. I. 0., or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
We will offer to the employees named below immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to any
seniority or other rights and privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment or other conditions
of employment, and if an understanding is reached, embody such understanding
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a signed agreement. The bargaining unit is all employees of respondent
employed in its Editorial Department, including employee Carlos Martin, but
excluding the part-time occasional library clerk, part-time messenger boy,
county correspondents, employees Laura Ivins, Francis Oliver, and Thomas
Berry, and the editor, managing editor, sports editor, and other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recommend such action
Employee to be reinstated:
James Allan
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
HUDSON DISPATCH
Dated ........ .. . ..............
By....
Employer
Representative Tide
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material