The New York Times Co.

National Labor Relations Board - Board Decisions

Aug 24, 1940

26 N.L.R.B. 1094 (N.L.R.B. 1940)

In the' Matter of THE 'NEW YORK TIMES COMPANY, A CORPORATION
and NEWSPAPER GUILD OF NEW YORK
Case No. C-775.-Decided August 211, 1940
Jurisdiction :, newspaper industry.
Unfair Labor Practices
In General
Employer cannot fulfill its duties under Act merely by issuing instructions
requiring, compliance; it must make such instructions effective.
Interference, Restraint, and Coercion: anti-union statements; distribution of
loyalty petitions; interference with collective bargaining; interrogation concern-
ing union activities; implied threats of interference with conditions of employ-
ment; inducing employees to refrain from acting as union officers by offering
better jobs; instructing employee to refrain from conversation with other employ-
ees on office time contrary to general custom.
Employer's refusal to meet with union on grievances not unfair labor
practice unless such union is exclusive representative of employees in an
appropriate unit or manner and circumstances of the refusal in themselves
coerce employees.
Discrimination: discharges and transfer of employees for union membership and
activities; allegations of discrimination dismissed as to two employees.
Remedial Orders : reinstatement and back pay.
Employee not fitted for job he held at time of discharge ordered reinstated
to some position for which he is qualified having same salary and dignity as
the one from which he was discharged.
Reinstatement but no back pay to employee who filed charges three years
after discrimination. .
Mr. Lester M. Levin, for the Board.
Cook, Nathan, Lehman ct Greenman, by Mr. Emil Goldmark and
Mr. Louis M. Loeb, of New York City, for the respondent.
Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Isserman, of
Newark, N. J., for the Guild.
Mr. Joseph Forer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Newspaper Guild
of New York, herein called the Guild,' the National Labor Relations
I Charges and amended charges were filed by the Guild on November 12, 1937, December 31, 1937, May
20, 1938, and July 9, 1938, with the Regional Director for the Second Region (New York City). On July
25, 1938, in accordance with Article II, Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, the National Labor Relations Board ordered that the proceeding be trans-
ferred to and continued before it for action pursuant to Article II, Section 37 (a), of said Rules and
Regulations. Amended charges were subsequently filed by the Guild with the Board at Washington, D. C.
26 N. L. R. B., No. 112.
1094
THE NEW YORK TIMES COMPANY 1095
Board at Washington , D. C., herein called the Board , issued its com-
plaint, dated December 17 , 1938, against-The New York Times Com-
pany, New York City, herein called the respondent , alleging that the
respondent had engaged . in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and (3)
and Section 2 (6) and ' (7)' of the National Labor Relations Act, 49
Stat. 449 , herein called the Act. Copies of 'the complaint and notices
of hearing and postponement of hearing were duly served upon the
respondent and the Guild.
Concerning the unfair labor practices , the complaint alleged, im
substance , that the respondent ( 1) discharged and refused to rein-
state Fred Jaeger and Leonard H . Goldsmith ? on account of their
membership and activity in labor organizations ; thereby discriminat-
ing in regard to the hire and tenure of employment of these-individuals,
and discouraging membership in labor organizations ; (2) transferred
I. Gilbert and Jane Schwartz from their regular positions to inferior
positions which they were not by training or experience qualified to
perform, on account of their membership and activity in labor organ-
izations ; (3) discouraged activity in labor organizations by warnings,
threats, and transfers ; and (4 ) by these and other acts interfered with,
restrained , and coerced its employees in the exercise of the- rights
guaranteed in Section 7 of the Act.
The respondent filed an answer dated January 6 , 1939, denying
the unfair labor practices and alleging , in substance , that Goldsmith
and Jaeger were discharged for cause and that Gilbert and Schwartz
were transferred in the normal course of business.
On January 14, 1939, counsel for the Board duly served upon the
Guild and the respondent notice that at the hearing he would move to
amend the complaint by-adding thereto allegations that the' respond-
ent had discharged and refused to reinstate Grace Porter on account
of her activity in a labor organization , thereby discriminating in
regard to her hire and tenure of employment and discouraging mem-
bership in labor organizations , in violation of Section 8 (3) of theAct.
Pursuant to notice , a hearing was held from January 30 to May 2,
1939 , at New York City, before Tilford E. Dudley, the Trial Examiner
duly designated by the Board. The Board , the respondent , and, the
Guild were represented by counsel and participated' in the hearing.
Full opportunity to be heard, to examine -and cross-examine witnesses;
and to introduce evidence bearing upon the issues was afforded all
parties. At the opening of the hearing the Board 's counsel moved to
amend the complaint ' to include , the allegations of 'discrimination
against Grace Porter. Counsel for the respondent raised no objection
and the Trial Examiner granted the motion to amend . The ruling of
3 Erroneously named in the complaint as Leonard W. Goldsmith. At the close of the hearing the com-
plaint was amended to conform to the proof.
1096 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner is hereby affirmed. The respondent filed an
answer to the allegations added by the amendment of the complaint,
wherein it denied the alleged unfair labor practices and alleged that
Grace Porter was discharged for good cause and for the best interests
of the respondent.
During the course of the hearing the Trial Examiner made numer-
ous rulings on other motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
After the close of the hearing counsel for the Board, the respondent,
and the Guild participated in oral argument before the Trial Examiner,
after which counsel for the respondent filed two memoranda for the
consideration of the Trial Examiner.
On March 22, 1940, the Trial Examiner, having been directed by
the Board on March 1, 1939, to prepare an Intermediate Report, filed
such Intermediate Report, copies of which were duly served upon the
parties. Therein he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.
He recommended that the respondent cease and desist from the un-
fair labor practices so found and take certain affirmative action. of
remedial nature, including reinstatement of Grace Porter, Isaac Gil-
bert, and Jane Schwartz to the positions from which they had been
discharged or transferred. He also recommended that the complaint
be dismissed in so far as it alleged discrimination against Fred Jaeger
and Leonard H. Goldsmith, and ordered that the transcript of the
oral argument before the Trial Examiner be made part of the record
in the case. Exceptions to the 'Intermediate Report were filed by
the respondent and the Guild. Thereafter, the respondent filed a
brief, which has been considered by the Board. The Guild filed no
brief but advised the Board under date of May 28, 1940, that- it relied
upon the oral argument before the Trial Examiner in lieu of a brief.
The Board has considered the transcript of such argument.
Pursuant to notice duly served upon all the parties, a hearing was
held before the Board at Washington, D.'C., on June 11, 1.940, for the
purpose of oral argument. The respondent and the Guild were
represented by counsel and participated in the argument.
Thereafter, counsel for the Guild addressed to the Board a letter
dated June 14, 1940, citing authority in support of one of the Guild's
contentions. Counsel' for the respondent, who received a copy of
the above letter, then addressed to the Board a letter dated June 19,
1940, discussing the authority cited by counsel for the Guild.
Although these letters were received after expiration of the time
THE NEW YORK TIMES COMPANY 1097
allowed for filing briefs, the Board has considered such letters in the
nature of supplemental briefs.
The Board has considered the exceptions filed by the respondent
and the Guild and, in so far as the exceptions are inconsistent with
the findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT3
The New York Times Company is a New York corporation having
its principal office and place of business in New York City, where it is
engaged in a general newspaper, news service, and publishing business.
It prints and publishes a daily newspaper known as "The New York
Times," it weekly business review known as "The Annalist," and a
periodical known as "The New York Times Index." -
The respondent sells and distributes these publications in a large
number of States and in some foreign countries. In 1937, a repre-
sentative year, the net paid circulation of the daily edition of The
New York Times, amounted to 5.13,593; of which approximately 22
per cent consisted of sales in States other than New York and in
foreign countries. The net paid circulation for 1937 of the Sunday
edition of The New York Times amounted to 764,277, of which ap-
proximately 46 percent consisted of sales in States other than New
York and in foreign countries.
The respondent purchases almost all of its newsprint from a com-
pany, of which it is a joint owner, located in the Province of Ontario,
Canada. For the year ending April 30, 1937, the shipments Of news-
print from the Ontario company to the respondent's plant in the State
of New York amounted in value to approximately $3,500,000. The
respondent purchases certain other supplies, including a substantial
amount of machinery, type and stereotype metal, ink, and office equip-
ment, from States other than New York.
The total advertising in The New York Times for 1937 exceeded
$10,000,000, of which approximately 24 per cent was national advertis-
ing, including automotive advertising. For the purpose of soliciting
such national advertising, the respondent maintains offices in several
States and employs several advertising salesmen to travel throughout
the United States.
The respondent buys, sells, collects, transmits, and receives news,
photographs, and 'other intelligence in the State of New York and,
to a substantial extent, in other States and foreign countries. From
its. New York offices it sells and transmits news and other intelligence
3 The findings set forth in this section are based on a stipulation entered into 'by counsel for the Board and
the respondent.
1098 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
to newspapers located in Illinois, California, Massachusetts, Missouri,
Wisconsin, Mexico, Argentina, Japan, and Australia.
The respondent is a'member of. the Associated Press and purchases
the news service of, the North American Newspaper Alliance. It
directs and controls. the operations of Wide World Photos, Inc., a
wholly owned subsidiary, which supplies news photographs to The
New. York Times and other papers in the United States and Canada.
The respondent owns and operates at its New York plant a wireless
'sending and receiving station for the transmission of news and mes-
sages to and from points. outside of the State of New York, including
foreign countries. It maintains offices, agents, and representatives
in 7 cities of the United States' outside of New York State, in cities
in 21 foreign countries, and in the Philippine Islands and the Canal
Zone:
. II. THE ORGANIZATIONS INVOLVED
Newspaper Guild of New York is a labor organization affiliated
with the American Newspaper Guild, which is, in turn, affiliated with
the Congress. of Industrial Organizations. The American Newspaper
Guild represents employees, chiefly in the news and commercial
departments, of newspapers, news publications, and news syndicates,
in the United States. The jurisdiction of Newspaper Guild of New
York extends to employees of such concerns within the vicinity of
New York City. and Long Island.
Newspaper Office Guild of New York, herein called the Office
Guild, was a labor organization formed in the spring of 1937, for the
purpose of organizing and representing unorganized workers in the
newspaper field, who consisted largely of commercial employees. The
Office Guild had over 2,000 members from the New York metropolitan
area by' the late summer or early fall of 1937, at which time it was
absorbed by the Newspaper Guild of New York.
Bookkeepers, Stenographers and Accountants Union, Local 12646,
herein called the B.-S. A. U., was in 1935 and 1936 a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership office workers in the New York area.
III.: THE UNFAIR LABOR PRACTICES
A. Negotiations between' the 'respondent and the Guild; interference,
restraint, and coercion; background
Beginning with the summer of 1934, the Guild has at intervals
negotiated with the respondent concerning the creation of a contrac-
tual relationship and the establishment of a grievance procedure.
Conferences on one or both of these subjects were held on July 17,
1934, August 21, 1935, August 3, 1936, March 17 and 24, June 25,
THE NEW YORK TIMES COMPANY 1099
and July 16, 1937, and on a later occasion subsequently discussed.
Between meetings various correspondence passed between the respond-
ent and the Guild. However, the parties at no time reached agreement.
The chief subjects of disagreement were the Guild shop and the
question of whether the respondent would meet .with the grievance
committee of the Guild. The Guild shop is an arrangement providing
that employees who are members of the Guild must remain members
during the period of the contract providing for the Guild shop, and
that newly hired employees must become members of the Guild within
a stated time after their employment.
Arthur Hays Sulzberger, president of the respondent and publisher
of The New York Times, consistently informed the Guild that the
respondent would not accept a Guild shop for its news and editorial
employees. He based his position on the theory that a uniformity of
opinion would arise if all such employees were members of a labor
union, which in turn would lead to biased journalism., Sulzberger
testified at length in explanation of this view. He also testified, in
substance, that the Guild shop for news and editorial employees was
"the only issue that has been in my mind, and the only thing that I
ever objected to"; that he had no objection to such•emplbyees joining
a union; and that he did not oppose the existence of preferential
or closed shops for employees outside of the news and editorial
departments.
The respondent also refused, in the course of, the conferences, to
meet with a grievance committee of the Guild; however,,fora short
time it met with a group of members of the. Guild without according
it recognition as a union committee. This refusal was first based on
an announced objection to a "uniformity of viewpoint on the part
of those persons who are entrusted with the responsibility of securing,
writing and editing the news." Subsequently two other reasons-were
assigned: (1) that the establishing of a grievance procedure was pre-
mature until the Guild and the respondent had entered into a contract
which would in part provide therefor; (2) that a grievance committee
was unnecessary because aggrieved individuals had. free access to
Sulzberger and Edwin L. James, managing editor of, The New York
Times.
At several of the conferences Sulzberger 'assured the representa-
tives of the Guild that the respondent would not discriminate against
any employees because of their. membership in the Guild. These
representations were publicized by the Guild in bulletins which were
widely distributed among the respondent's employees, including its
executives. One such assurance was made by Sulzberger at the con-
ference of July 16, 1937. At this time the representatives of the Guild
referred to reports they had received from office workers that the
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter were "meeting difficulties in organization because of the
attitude of subordinate officials in. the business offices." Sulzberger
replied, "There has never been any act of Guild activity that has
counted against any man on the Times, and there never will be." He
also stated that any of the respondent's executives who should be
found engaging in actions contrary to this policy would be discharged.
On August 11, 1937, Sulzberger and representatives of the Guild
resumed a discussion of a 1.4-point program presented by the Guild.
The first four points had already been discussed at the meeting of
July 16, 1937, and the conference therefore opened with consideration
of point 5, the proposal for a Guild shop. The conferees spoke on
this subject at length, with Sulzberger again asserting that a Guild
shop covering news and editorial employees was unacceptable because
it would cause bias in the reporting and editing of the news. Finally,
the Guild representatives asked Sulzberger.to skip the fifth proposal
and pass on. to the remainder of the Guild's program. Sulzberger
agreed to do so.
At this point Milton Kaufman, exectuive secretary of the Guild,
remarked that the Guild represented a majority of the respondent's
news and editorial workers. Sulzberger asked for the relevant sta-
tistics, but this information was not furnished. After some further
discussion of representation, Sulzberger said, in the words of his own
testimony:
I was sorry, but I would have to change what I had previously
told him, that instead of talking informally as I had, as I had
thought we were with a group who were interested in improving
working conditions for newspaper men, that if now they were
present in my office technically under the Wagner Act, represent-
ing a majority of the newspaper workers from the New York
Times-news department workers-that if they took that tech-
nical position that I would be driven also into a technical posi-
tion, that I would tell them that I was sorry I could not do what
they suggested, and skip point 5, but . . . rather that we had
reached an impasse on point 5, and that we had no meeting of
minds on it, and that until we did we could not proceed.
The representatives of the Guild argued that Sulzberger was taking
an unfair position. Sulzberger again reviewed his concern "with re-
spect to the closed shop for news department workers," and said that
he could not depart from his position until the "threat" of a closed
shop for the news department was removed. The discussion then
continued as stated in the following excerpt from Sulzberger's
testimony:
They [the representatives of the Guild] told me that the
Herald-Tribune was insisting that they waive the question of the
THE NEW YORK TIMES COMPANY 1101
Guild or closed shop before they sat down to negotiate with
them, and I said:
Well, gentlemen, we are going to require more than that. We
are going to insist upon an affirmative statement for the open
shop before we can proceed in the signing of any contract,
because so long as the requirement of a closed shop stands in your
constitution,4 I can only assume that you would waive the ques-
tion now in order to gain strength, and come back- later on, and I
am not willing to take that first step.
Kaufman testified as follows as to the position taken by Sulzberger:
"Mr. Sulzberger then made the proposal that he would not consider a
contract with the Guild unless not only was there no Guild shop but
that we would have to assert in any contract that we were against the
Guild shop and that we would never ask for a Guild shop, even beyond
the period of the contract." It is unimportant whether Sulzberger
so elaborated on his statements quoted above, or whether Kaufman's
testimony merely represents his own construction of these statements.
By whatever he said Sulzberger meant to communicate, and did com-
municate, the following proposition: So long as the Guild retained its
constitutional provision relating to the Guild shop in contracts, the
respondent would consider that there existed an impasse to formal
negotiations with the Guild, removable only by the Guild's declaring
that it was opposed to the Guild shop for news and editorial workers
and agreeing that it would never in the future demand a Guild shop
for such employees. This finding is based on (1) Sulzberger's testi-
mony on the conference; (2) Kaufman's testimony indicating what
the Guild understood Sulzberger to mean; (3) other portions of Sulz-
berger's testimony indicating his general position.5
After Sulzberger had thus presented his views, one of the Guild
representatives inquired as to the kind of a contract which the re-
spondent would be willing to write if the parties agreed on a statement
concerning the Guild shop. Sulzberger then replied as stated in the
following excerpt from his testimony:
To the best of my recollection I replied that there were a couple
of stumbling blocks. To begin with, there were a group of men
4 The American Newspaper Guild had 2 months previously adopted a revised constitution , of which one
article stated : "No contract shall fail to provide for the Guild Shop and the five-day forty-hour week unless
the [International Executive Board] gives specific permission."
5In connection with the last point we quote the following from Sulzberger's testimony on cross-examination:
Q. It is your position , is it not, that you require of the Guild to give up the advocacy of the closed
shop or the Guild shop, not only at the present time but for all time; isn't that so? ' So far as the New
York Times is concerned?
A. My attorneys tell me I cannot do that . Otherwise, that would be.
Q. In other words, that it is your position now that you do not require as part of reaching an agreement
with the Guild that they forever agree not ask for a Guild shop?
A. I want to get that to extend as far into the future as it can be legally extended.
Q. What is your position-
A. If I could ask for it forever and it could be legal , and it could be agreed to, I would ask for it. I
would have to ask the attorneys if it could be accomplished legally.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I knew of who had no wish to be represented by the Guild,
and that I had to take their point of view into consideration.
Second, that we might find it necessary during the course of
the negotiations to challenge the appropriateness of the bar-
gaining unit.
Third, that if those stumbling blocks were passed that we would
then be prepared to write a contract which incorporated'the lowest
scale which the Guild had accepted in any of its contracts in
New York City.
It is clear that Sulzberger did not consult his attorneys on the subject
prior to its arising spontaneously at, the conference now under dis-
cussion.
I pointed out that we had no desire whatsoever to pull our
scale of wages which was good, down to that level, but unionism
means uniformity, and we saw no basis whatsoever in agreeing
to pay more than the Guild was willing to accept elsewhere.
The conference ended without the reaching of a common understanding.
Sulzberger's reference at the conference to "a group of men that
I knew of who had no wish to be represented by the Guild" was based
on a declaration, referred to in the record as a "loyalty petition,"
which had been circulated among the respondent's 'employees for
signature some time before the conference. This declaration read as
follows:
WE, the undersigned members of the News, Editorial and
Sunday Departments of The New York Times, engaged in the
gathering, writing, editing and make-up of material for publica-
tion, oppose efforts by any group to force from the publisher of
this newspaper a contract governing salaries and working con-
ditions which would be binding upon all so employed.
WE concede the right of the Newspaper Guild to attempt to
bargain collectively for its own members. However, we main-
tain that any organization which includes in its membership
others than those employed in the confidential relationship
which exists between the publisher and his reporters, editors,
rewrite and make-up men cannot speak authoritatively for the
news and editorial departments.
WE hold also that newspapermen's organizations which com-
mit their members to one side or another of social, economic,
and political issues tend to undermine public confidence in the
impartiality of the press.
As for The Times, we point out that the publisher and the
managing editor have shown a disposition in the past to hear
individual grievances and to make individual adjustments.
THEREFORE, we feel that we, who by a community of thought
are bound together without, formal organization, should make
THE- NEW YORE TIMES COMPANY 1103
known our position and stand ready to affirm it publicly if and
when the necessity arises.
The "loyalty 'petition" was signed by approximately 80 of the
respondent's employees, including the following executives: Clarence
Howell, assistant night managing editor; Neil MacNeil, first assistant
to the managing editor; R. H. McCaw, night managing editor; and
Harvey W. Getzloe, night city editor.
On September 2, 1937, the Guild adopted a resolution protesting
the respondent's discharge of Leonard H. Goldsmith and alleging that
Goldsmith had been discharged on account of his union activity and
that other employees had been subjected to intimidation and dis-
crimiuation. Soon afterwards Sulzberger called a meeting which
was attended by about 20 or 30 of the executives and subexecutives
of the respondent's business offices. Sulzberger told these individuals
that lie had called them together because of the charges made by the
Guild, that he wanted to assure them that the charges were without
foundation, that he had perfect confidence in them, but that at the
same time he wanted to caution them. Sulzberger added that if any
executive was "found guilty of discrimination" he would be promptly
dismissed. Sulzberger also said that the respondent had never had
any quarrel with the Guild and that its only concern in its relations
with the Guild was the matter of the Guild shop in the news depart-
ment. He likewise explained. his views on the latter subject.
On September 23, 1937, Sulzberger addressed an open letter to the
respondent's staff alleging that the charges made in the Guild's resolu-
tions were false. The letter also stated:
The New York Times has never either intimidated its employees
or discharged them arbitrarily. When some weeks ago a state-
ment to the contrary was made to me by Guild representatives,
I then advised them that any executive guilty of such practice
would be instantly dismissed. That rule has been in operation
and will continue to operate.
We have never opposed the Newspaper Guild on economic
issues. We have consistently refused, however, and will con-
tinue to refuse, to enter into any agreement with it that provides
for a Guild shop, preferential shop, or any other kind of closed
shop, for news and editorial workers.
The management has never sought to know whether this or
that person was affiliated with the Guild, any more than it has
inquired into the individual's church membership or political
party adherence. Our only interest has been whether or not each
worker here was a good newspaper man and whether he honestly
and competently performed the tasks for which he was employed.
That will continue to be our attitude.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later in September 1937, Sulzberger informed the Guild that lie
was willing to continue contract negotiations. He did not, however,
retract any part of his previous statement of position. The Guild did
not accept the invitation to resume the discussions, and no further
negotiations were held between the respondent and the Guild.'
Upon the basis of the foregoing facts we are of the opinion that the
respondent engaged in certain unfair labor practices at the conference
of August 11, 1937, and in connection with the "loyalty petition."
At the conference of August 11 Sulzberger served notice on the re-
spondent's employees that so long as the Guild's constitution con-
tained the Guild shop proviso the respondent would not bargain with
the Guild unless that organization first made a declaration and promise
in contravention of the spirit of its constitution. The respondent
would, of course, have had no right to exact this condition as a,
prerequisite to bargaining, once the Guild was designated as collective
bargaining agent by the majority of the employees in an appropriate
unit. Accordingly, the effect of the respondent's position was to
remove from its employees one of the major incentives of continued
organization,-the hope that by acquiring sufficient union member-
ship they would be able to bargain collectively with their employer.
In addition, by causing its employees to understand that a contract
with the Union would probably be more to their detriment than to
-their advantage in the all-important matter of wages, the respondent
eliminated still another incentive to organization,--the hope of obtain-
ing a favorable contract defining the terms and conditions of employ-
men t. The implication that union organization would have a negative
or unsatisfactory effect on wages was made more pointed by the
respondent's assertion. that such a result would flow from some
quality supposedly inherent in unionism.
We find that the respondent, through the actions of its president,
Sulzberger, at the conference of August 11, 1937, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
In signing the "loyalty petition," four of the respondent's executives
openly participated in a severe attack on the Guild and its policies.
The action of the executives who thus discredited the Guild is, because
of their position, attributable to the respondent. We find that by
such action of its executives the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in.
Section 7 of the Act.
In his Intermediate Report the Trial Examiner found that the
respondent's refusal to meet with the grievance committee of the
6 Subsequently there were negotiations between the Guild and wide world Photos , Inc., a subsidiary of
the respondent.
THE NEW YORK TIMES COMPANY 1105
Guild constituted a violation of Section 8 (1) of the Act. It is our
opinion, however, that an employer's refusal to meet with a union on
grievances is not an unfair labor practice unless such union is the
exclusive representative of the employees in an appropriate unit 7 or
unless the manner and circumstances of the refusal in themselves
coerce employees in the exercise of their right to self-organization.'
Since the evidence does not establish either of the prerequisites indi-
cated, we find that the respondent has not committed an unfair labor
practice in this respect. The finding of the Trial Examiner to the
effect stated is, therefore, hereby reversed.
The preceding discussion serves not only as an analysis of certain
practices engaged in by the respondent, but also as background to
matters subsequently considered. We have indicated that Sulzberger
on several occasions declared that it was the respondent's policy not
to discriminate against members of the Guild and that it would dismiss
executives who violated this policy. Since these declarations were
communicated, directly or indirectly, to the respondent's employees
and executives, we accord them consideration in assessing the signifi-
cance of or motivation for various actions. Their value for this
purpose is, however, weakened by several factors of which one is the
fact that Sulzberger, who made the declarations, himself participated
in the respondent's interference with, and restraint and coercion. of,
its employees. Another is the circumstance that the record shows
that Sulzberger persistently adhered to a flat disbelief, based on faith
and not on investigation, of any allegations that his subordinate
executives had harassed or discriminated against employees on account
of their union membership, even while expressing a desire to stop any
such conduct by the executives if it should occur. It is also abundantly
clear from the record that in any case where an ordinary employee
alleged unfair treatment it was the policy of the respondent's major
executives to affirm the actions and contentions of the minor executive
involved, either without investigation or after an investigation merely
designed to corroborate the executive's position.
It is also of service for future purposes to review certain general
contentions made by the respondent and by the Guild. Sulzberger
testified:
7 Cf. Matter of Mooresville Cotton Mills and Local No.1221, United Textile Workers ofAmerica, 2 N. L. R. B.
952, enf' d as mod ., Mooresville Cotton Mills v. IV. L. R. B., 110 F. (2d) 179 (C. C. A. 4 ); Matter of Corn
Products Refining Company and United Cannery , Agricultural , Packing & Allied Workers of America, Local
169, 22 N. L. R. B., 824.
8 Thus , where a sudden termination of dealings with a minority union was motivated by an employer's
determination to drive the union from the plant and was part of a continuing course of unfair labor practices,
we held that the termination of dealings was itself an unfair labor practice . Matter of Berkshire Knitting
Mills and American Federation of Hosiery Workers, Branch #10 , 17 N. L. R. B. 239 . Likewise, we have,
held. that an employer's coercive refusal to meet with union representatives because of their affiliation with
a national union is an unfair labor practice. Matter of The Niles Fire Brick Company and United Brick
Workers ' L. 1. U. No. 198, 18 N . L. R. B. 883; Matter of R. C. Mahon Company and Steel Workers Organizing
Committee (Affiliated with the C. I. 0.), 23 N. L. R. B. 1084. -
1
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have never been prejudiced against the Guild. We have
never been prejudiced against unionism. Our building is full
of unions 9 .
Long before the Wagner Act, we recognized the unions' right
to bargain collectively. We did not need any instructions along
those lines.
Sulzberger also testified that because of a concern for objective jour-
nalism he had always attempted to avoid "issues" with 'the Guild;
that "to have created an issue would mean that there would be a
violence of feeling" detrimental to his desire for impartial reporting.
The respondent claims that because of this professed desire to avoid
"issues" it has actually overlooked misconduct on the part of members
or officials of the Guild solely because the infliction of discipline might
have provoked a controversy with that organization. Sulzberger
testified: "I was guilty of Guild discrimination in favor of the Guild."
On the other hand, the Guild maintains that the respondent's expres-
sions as to its policy are "merely a thin smoke screen for a determined,
unrelenting opposition to the Guild. which appears wherever the
surface of management's official attitude is scratched," and that "there
are basic contradictions between Times' action and Times' official
policy." The Guild also urges that the respondent's actions conform
to a pattern of active animosity toward the Guild. In considering
the evidence we have borne in mind the conflicting contentions sum-
marized in this paragraph.
In certain instances the respondent relies on Sulzberger's utterances
as relieving the respondent of responsibility for some of the actions of
its executives or supervisors; it urges in these cases that if such
executives or supervisors interfered with the organization of their
employees, they acted beyond the scope of their authority. This
contention is without merit. The respondent cannot fulfill its duties
under the Act merely by issuing instructions requiring compliance
with the Act. Its obligation extends to making any such instructions
effective. u
B. The discharge of Grace Porter
Since April 1, 1910, Harry H. Weinstock has been the respondent's
auditor and as such has had supervision and control of the auditing
department. . In September 1935 Sally Lazare had been Weinstock's
secretary for about 3 years, and Mrs. Lucy T. Pingel had been his file
clerk for about 9 years. Pingel and Lazare collaborated closely in
performing the secretarial, clerical, and miscellaneous work of Wein-
Y The respondent 's mechanical departments are completely unionized and in some instances operate
under closed -shop contracts . It does not follow, however , that the respondent's attitude toward the
Guild is analgous to that shown by it to the long-established mechanical unions.
10 Swift & Company v. N. L. R. B., 106 F. (2d) 87 (C. C. A. 10), enf'g as mod. Matter of Swift & Company,
a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America , etc., 7 N. L. R. B. 269;
Matter of The Niles Fire Brick Company and United Brick Workers' L. I. U. No. 198, 18 N. L. R. B. 883.
THE NEW YORK TIMES COMPANY 1107
stock's immediate office, and worked, facing each other, at desks
placed together in an outer office.
Early in the fall of 1935 Lazare was planning to quit the respond-
dent's employ in order to leave for England. At this time she met
Grace Porter through the offices of a mutual friend and recommended
Porter to Weinstock as her successor. Weinstock interviewed Porter
on September 17, 1935, spoke to her about the confidential nature of
the post she was seeking, and hired her as his secretary at $30 a week.
Porter began work on September 30, 1935, but Lazare remained
until October 16, in order to familiarize Porter with the position.
Porter was quick to learn and performed her work efficiently and to
Weinstock's satisfaction. Her duties gave her access to information
considered confidential by the respondent, including the respondent's
daily profit and loss statement and items relating to its expenditures,
pay rolls, and other financial matters.
About the second week in October 1935, Lazare arranged a meeting
between Porter and three other employees of the auditing department,
Una Lissemore, Isaac Gilbert, and Louis Berg, to discuss the possibility
of organizing their fellow employees in a union. The meeting,
attended by the four individuals last named, was held late in October
or in November 1935 in a private office procured by Porter. The next
week the same persons met at the same place with a union organizer,
who advised them to join the B. S. A. U. as soon as they were ready.
Sometime in November 1935 Pingel saw on Weinstock's desk a
handbill urging "Fellow Workers of the New York Times" to vote the
Communist Party ticket. At the lower right-hand corner of the
flyer was the legend: "(ISSUED BY COMMUNIST PARTY UNIT IN THE
NEW YORK TIMES)." At the lower left appeared: "(TECHNICAL
WORK DONE BY MEMBER OF B. S. & A. U. 12646)." Attached to the
handbill was a memorandum from Managing Editor James to Sulz-
berger, which read: "The spies report that some of the auditing people
are back of this. Maybe it will amuse Mr. Weinstock to try to find
out who."
Pingel told Porter about the handbill and attached memorandum,
and Porter in turn examined the paper. James' reference to "spies"
was facetiously intended; Porter and Pingel, however, inferred there-
from that the respondent in fact employed professional spies.
Pingel filed the communist dodger and James' memorandum in a
file designated as "labor-miscel," concerning which she testified: "I
put all miscellaneous matters pertaining to labor, whether it came
from the Department of Labor, whether it came from the United
States Department of Labor, until I had enough material of one kind
to make a special folder and everything went into that miscellaneous
folder."
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 12, 1935, Porter, Gilbert, Berg, Lissemore, and an-
other employee, Flinker, met in the office of the B. S. A. U. with two
representatives of that union. Each of the employees filed an
application for membership in the B. S. A. U. and paid an. initiation
fee.
Later in December 1.935 Porter, Berg, Lissemore, and Gilbert again
met in the B. S. A. U. office. They discussed methods of interesting
others in union organization and took some union literature. At this
meeting Porter told about-the "spy" memorandum attached to the
communist leaflet, which she had seen on Weinstock's desk, and certain
measures designed to insure the privacy of their membership cards
were taken. The group also decided to meet biweekly thereafter.
Berg subsequently distributed some of the B. S. A. U. literature to
other employees of the respondent, and Lissemore distributed one
or two leaflets. The others did not distribute any union literature.
Porter testified that on several occasions during the course of the
nascent union activity above described she told Pingel of-the meetings
of the group interested in organizing, invited Pingel to attend 'a
meeting and to join the B. S. A. U., and discussed with Pingel a leaflet
of the B. S. A. U. sent to the latter by Lissemore. According to
Porter, Pingel refused to attend the meeting, saying that she believed
in unions and might have attended if she were 20 years younger but
would not do so in view of the "spy" memorandum. Lissemore
testified. that she spoke to Pingel about joining the union group and
that she sent Pingel one of the B. S. A. U. leaflets. Berg's testimony
of certain conversations with Pingel also indicates that Pingel had
knowledge of the union activity.
Pingel testified, however, that she knew nothing whatever of the
formation of the B. S. A. U. and denied that she had received a
B. S. A. U. leaflet or had been informed of any union activity. Pingel
further testified that in November or December 1935 Porter informed
her that Lazare was "active in Communist matters" and had acted
as a secretary to the Communist Party at a salary of $25 a week.
According to Pingel, Portec also said that she had met Lazare at
communist meetings, and that she had been introduced by Lazare to
other active Communists in the auditing department, namely, Lisse-
more, Gilbert, and Berg. Porter contradicted Pingel's testimony in
this respect and also denied any communistic affiliation or participa-
tion.
On January 2, 1936, Pingel had a conversation with Weinstock
concerning Porter. Both Pingel and Weinstock testified, in sub-
stance, that Pingel told Weinstock that Porter was a Communist and
informed him of what Porter had allegedly said concerning the
communist involvements of Porter, Lazare, Gilbert, and Berg. They
THE NEW YORK TIMES COMPANY 1109
also testified that Pingel made no mention of any union movement.11
Later that same day Weinstock called in Porter. He asked her if
she was a Communist. She said she was not. Weinstock then said
he had information that she was a member of the Communist Party
and was associating with a small group of persons in the auditing
department who were also inclined toward communism. Porter de-
nied- both charges, and asked him to reveal the source of his informa-
tion. He refused on the grounds that it would cause needless ani-
mosity. Weinstock stated that Porter had been frequently seen
with a "well-known Communist." Porter replied that she was not
acquainted with any Communists and suggested the possibility of a
mistake in identity. Weinstock inquired about a trip which Porter
had made abroad, asked whether she thought someone was trying to
make trouble for her, and asked who were her friends in the office.
She named Pingel, Lissemore, Berg, Gilbert, and Solomon Lask, the
office boy. Weinstock also referred to the confidential nature of
Porter's position, and stated: "Of course, we have no objection to
the affiliations of. any of the people in the Times. We have Commu-
nists, Socialists, Republicans and Democrats. You know The New
York Times is a liberal newspaper."
Our recapitulation of the conversation up to this point is based on
the testimony of both Porter and Weinstock, who agreed on the
account so far stated with the-exception of such minor variations as
may be expected to arise where two witnesses testify some time after
the event they' describe.12 Porter further testified, however, that
Weinstock also asked if she was a member of the "bookkeepers union"
and if she had "spoken to anybody about a union," and that she
replied in the negative to both questions. Thereupon, she testified,
Weinstock said that he knew she was trying to organize and that he
wished she would tell him the whole truth; "anyway, to think it over."
Weinstock denied asking these questions or accusing Porter of organ-
izing, and testified that at the time he knew nothing about union
It Pingel testified that before speaking to Weinstock she told her husband of Porter 's alleged revelations
concerning Communism and that he advised her that it was her duty to inform Weinstock . Counsel for the
respondent called Mr. Pingel , but the Trial Examiner sustained an objection to questioning of the witness
as to what 'Mrs. Pingel had said to him. Testimony by the witness on this subject would be inadmissible
in the courts under the ordinary rules of evidence . If offered for the purpose of establishing what Porter
told Mrs. Pingel it would be inadmissible hearsay . The only other relevance of such testimony would
seem to be to support Mrs. Pingel 's credibility . But as there had been no attempt to impeach Mrs. Pingel,
the testimony would be inadmissible under the rule that a party may not introduce prior consistent state-
ments for the purpose of supporting the credibility of an unimpeached witness . 3 Jones, The Law of Evi-
dence in Civil Cases (1938), sees. 868, 869; 2 Wigmore , Evidence ( 1923), sec. 1124; Anaran v. Mel ken, 230
Mass. 322, 119 N . E. 767; Dunn v. Busehmann , 169 Wash . 395, 13 P. (2d) 69; Judd v. Letts, 158 Cal. 359, 111
Pac. 12. The Board , however, is not bound by the rules of evidence , and we are of the opinion that under all
the circumstances the Trial Examiner might well have permitted Mr. Pingel to testify on the subject indi-
cated . However, we do not consider that the exclusion of the offered testimony was of sufficient importance
to warrant a reopening of the case.
12 We shall, for the purpose of convenience , employ a similar method with respect to certain of the other
conversations subsequently described herein. That is, we shall state our findings without troubling to
indicate the existence of conflicts in testimony where such conflicts are not on material points.
323429-42-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization or membership in his department. He also testified
that he asked Porter to tell the truth as to her communist associations
only and said that if she did so they could come to a mutually satis-
factory conclusion. The conference ended without any admission or
final statement having been made by either party.
Porter then returned to the outer office and spoke to Pingel. Porter
testified that she said at this time that Weinstock had accused her
of being a Communist and of attempting to organize a union, that she
had denied both accusations, and that she had untruthfully denied
union membership because of her fear that an admission would cause
the discharge of herself and the other union employees. Pingel
testified that Porter said she had been questioned by' Weinstock about
her communist activity and had not told him the truth in order to
avoid trouble for herself and others in the department.
Shortly after the conversation with Pingel, and in Pingel's presence,
Porter dialed to the editorial auditing section on the house telephone
and spoke to Lissemore. According to the testimony of Lissemore
and Porter, the latter said over the telephone that she had been
questioned about the union and told Lissemore to "deny everything."
Pingel testified that Porter said she had been questioned about her
communist activities, after which she told her listener to "deny
everything."
Pingel then went into Weinstock's office. Both Pingel and Wein-
stock testified that she reported that Porter had called someone in
the editorial auditing division and had advised her listener to "deny
everything" if questioned on communism."
Weinstock then summoned his subordinate, Edwin LeRoy Finch,
the respondent's editorial auditor and himself a supervisor, and asked
Finch to ascertain whether Lissemore had just previously received a
call from someone on Weinstock's immediate staff. Finch returned
to his own office, requested Lissemore to step outside into the corridor,
and asked if she had received such a telephone call. ' Lissemore said
she had not. Finch believed Lissemore and reported her denial to
Weinstock.
According to his own testimony, Weinstock felt that Pingel''s story
needed to be verified or disproved. He therefore instructed Finch
to make further inquiries of Lissemore and Gilbert. Weinstock and
Finch both testified that the instructions were that Finch should ask
Lissemore and Gilbert if they were Communists. Finch again re-
turned to his office and spoke separately to Lissemore and Gilbert.
Finch testified that he asked them if they were members of the Com-
munist Party or if they were Communists and that he did not refer
to unions. Lissemore testified that Finch asked her if she knew any-
13 The record does not indicate how Pingel was aware that Porter had dialed the editorial auditing divi-
sion . Nor is it clear why Weinstock subsequently assumed, correctly enough, that Porter had spoken to
Lissemore rather than to Gilbert, also employed in that division , or to some third person.
THE NEW YORK TIMES COMPANY 1111
thing about, or belonged to, a union, that he said nothing about
communism and that he remarked that Weinstock could ask for her
resignation if she attended union meetings. Gilbert, testified that
Finch asked him if he was a Communist and that Finch also inquired
if he had approached anyone or had himself been approached with
respect to joining any sort of an office workers' union. Although
the testimony is therefore conflicting as to the nature of Finch's
inquiries, there is agreement, and we find, that Lissemore and
Gilbert entered denials to whatever questions were asked. Finch
reported the denials to Weinstock.
Charlotte Fischbach, also an employee in the editorial auditing
division, testified that in January 1936 Finch asked her if she had
heard anything about a union being formed "in the Times" and that
she replied that she knew of no union other than the Guild, which at
that time did not admit to its membership employees in commercial
departments. Fischbach's testimony was contradicted by Finch, who
asserted that no such conversation occurred.
On Friday morning, January 3, 1936, Weinstock asked Porter in
his office if she was ready to discuss "more frankly" the " Communistic
question." She replied affirmatively. Weinstock told her he had
been informed of her telephone call to the editorial auditing division,
again accused her of being a Communist, asked her to tell him the
truth, and said he could forgive almost anything except untruthful-
ness. Porter denied having made the telephone call, reiterated that
she was not a Communist, and said she was telling the truth. Porter
testified that she also told Weinstock that she had been a member of
the Office Workers Union while.elsewhere employed and that she
mentioned that a union leaflet had been brought over at one time to
Pingel and herself. She further testified that Weinstock then ques-
tioned her, and she entered denials, as to whether she had joined or
tried to get others to join a union and whether others had spoken to
her about joining. Weinstock denied so questioning Porter. He
testified, however, that Porter had volunteered information concern-
ing her earlier membership in the Office Workers Union during their
conversation of the preceding day and that he had then told her that
there was no objection to unionism either on his part or, so far as he
knew, on that of anyone else in the respondent's plant.
On Saturday, January 4, 1936, Porter entered Weinstock's office,
told him she was very much upset over .the situation, and wept.
Weinstock again urged her to tell the truth, and said, "If you would
tell me 50 per cent of the truth, or you would tell me that 50 per cent
is true or 75 per cent is true we could come to some understanding."
Porter insisted that she had told the truth. Porter testified that
Weinstock asked her if she was dissatisfied with her job, and said,
"You know that there are unions in The New York Times.'; Wein-
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stock, however, testified that his only reference to unions had been made
in their conversation of January 2, 1.936, as already described in our
preceding statement of his testimony.
On the following Monday Weinstock again asked Porter to tell him
the truth; she maintained that she had clone so. He again refused her
request to name his informant and said he had not yet decided on what
action to take.
Sometime during the first week in January 1936 Weinstock called in
Louis Berg and asked Berg if he was a Communist or associating with
Communists. Berg replied that he. was not. Berg testified that, in
addition, Weinstock "told me that he had been informed that there
was a movement for organization, but what the nature of the organiza-
tion was, he didn't say. He wanted to know if I had heard of anything
on it, or anybody had approached me on. the subject, and I denied any
knowledge of it at all. . . . I believe he used the word `union,'
but I am not sure of that." Weinstock contradicted Berg's quoted
testimony. The conversation ended when Weinstock told Berg to
thin, over what had been said. Later that same day or the next day
Weinstock recalled Berg and asked him if he had any other answers to
give. Berg said he had not'.
During this same period Weinstock- asked Clifford H. Pyle, office
manager of the auditing department and a supervisory official, to
speak to Lask. Weinstock testified that he instructed. Pyle to ascer-
tain whether Lask was a member of the Communist Party or was
engaging in any communistic activities in the department or, was
associating with others so engaged. Pyle corroborated this testimony
in substance. Pyle further testified that he questioned Lask accord-
ingly, that Lask denied being a Communist or knowing any Commu-
nists, and that he reported the denials to Weinstock. Lask, however,
gave the following account of their conversation:
. . . lie [Pyle] asked me if anybody had asked me to join a union,
or proselytize, that was his word, or talk about the union in any
way. I said they never had. . . . He added, "Why the Times
didn't care whether anybody belonged or not," and they were
entitled to their own views, but that anybody occupying a semi-
executive position and handling matters of a confidential nature
might violate any confidence that was imposed upon them.
. . . He . . asked. whether I had any suspicions, or whether I
could name anybody who might have done any proselytizing,
anything I would say to him would be entirely confidential' and
he would not violate anything I said to him or give my name out.
I said I did not know of anybody and consequently I could
not give him the names.
Pyle denied that anything was said about unions in his conversation
with Lask.
THE NEW YORK TIMES COMPANY 1113
On or about January 10, 1936, Weinstock told Porter that he had
decided to discontinue her services as of January 25, and that in the
interim she would be transferred to the pay-roll and typing section
of the auditing department. The next day Porter was transferred to
that section as a typist, and the girl whom she there replaced took
Porter's former position.
Porter then worked for the respondent through January 25, 1936,
at which time her discharge became effective. Her removal slip,
made for the respondent's records on January 27, 1936, gave as the
reason for her removal: "Competent and intelligent but otherwise
not satisfactory."
After the events described above, the employees who had joined
the B. S. A. U. discontinued any efforts towards organization, attended
no more meetings, and paid no further union dues.
Conclusions as to Porter
Weinstock testified that he discharged Porter for. two reasons:
First, his suspicion that she was a Communist and engaged in. com-
munistic activities; second, his conviction that she had not told him
the truth. He testified that while he had no interest in whether per-
sons employed in non-confidential positions were Communists, he
"could not reconcile Communistic activities with the duties of the
confidential secretary of the auditor of the New York Times." He
testified further that he "would have no confidence in a Communist
in a confidential position" because he believed that Communists
would have no scruples against divulging confidential information.
He stated that Porter could not remain as his secretary because of his
suspicion of her communism, but that she probably would have been
transferred to a non-confidential position had it not been. for his con-
viction that she was being untruthful.
It is our opinion, however, as it was that of the Trial Examiner,
that Weinstock's testimony lacks credibility. Both Lissemore and
Gilbert were employed in positions which were admittedly confidential
in nature. Weinstock had as much reason to believe that they were
Communists as he had to believe that Porter was a Communist.
Yet lie permitted Gilbert to remain in his post for some 2 years longer.
Lissemore continued to perform work of a confidential nature through-
out 1936 and 1937, and the volume of such work assigned to hr was
increased in July 1937 with Weinstock's approval. Similarly,
Weinstock had as much basis for believing in the untruthfulness of
Gilbert, Lissemore, and Berg as for believing in the untruthfulness of
Porter. In fact, Weinstock testified that he concluded that Lisse-
more, Gilbert, Berg, and Lask had each lied. Yet he discharged only
Porter.
1114 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
On the other hand, a hypothesis that Weinstock's true concern
was the eradication of incipient unionism explains his failure to
remove persons other than. Porter either from confidential posts or
from the respondent's employment altogether. After the discharge
of Porter and the interrogations of Gilbert, Lissemore, Lask, and Berg,
all steps toward organization of the employees in the auditing depart-
ment ceased. If such was the intended result, then Weinstock's
purposes, having been fulfilled, required no further implementation.
Likewise, Weinstock's method of investigation-to ask suspects if
they were Communists-was ill adapted to the purpose of discover-
ing whether the questioned employees were Communists. But if
his purpose was not to ascertain facts but to frighten his employees
from taking further organizational action, then interrogation was
obviously an apt device.
The very fact that union activity ceased lends credence to the
testimony that it was the subject of Weinstock's reproaches and
search. So too does the coincidence between such activity and Wein-
stock's investigation.
Weinstock's credibility is also seriously impaired by the contra-
dictory nature of his testimony, hereafter discussed, regarding the
transfer of Gilbert. Finally, Weinstock's claimed belief in Pingel's
supposed revelations concerning communism is beyond our credulity,
in view of the circumstances that certain elements in Pingel's story
were obviously implausible and that the investigation which Wein-
stock felt impelled to make can have served only to disprove Pingel's
account. The emphasis allegedly placed on the significance of Porter's
claimed untruthfulness presupposes also a lack of sophistication on
Weinstock's part which is inconsistent with other parts of his testimony.
Thus he testified:
I should say that truthfulness is one of the very desirable
requirements of an employe in the auditing department, as it is
elsewhere, but I am afraid that if all of our employees were judged
on such a basis, we would. have a hard time keeping a staff.
Truthfulness is a question of degree, and, as a matter of fact, I
don't think anybody is one hundred per cent truthful. I think
you could write rather a large digest on that subject.
As regards the character of Porter's testimony, the Trial Examiner
made the following statements in his Intermediate Report:
Although Porter admitted at the hearing that she had not told
the truth to Weinstock in January 1936 when she denied union
membership, nevertheless, those statements were made in re-
sponse to an unwarranted inquiry and were prompted by the fear
of an undeserved discharge if the truth were known." Untruth-
'4 It might also be added that Porter was prompted as well by the fear of an unjust discharge of other
employees.
THE NEW YORK TIMES COMPANY 1115
fulness in such a circumstance does not necessarily indicate a
general lack of veracity. The frankness of Porter's evidence, her
excellent memory, and her demeanor on the stand, indicate her
sworn testimony to be both truthful and accurate.
We accept the Trial Examiner's observation of Porter's demeanor
and concur in his other comments concerning her credibility.
On the basis of the testimony of Porter, Lissemore and Berg, we
find, as did the Trial Examiner, that Pingel was informed of the union
group's meetings and actions. We do not credit the contrary testi-
mony of. Pingel, obviously a garrulous and emotional person, nor do
we credit her testimony that Porter gave her the claimed information
concerning communist affiliation and activity. In the other described
conflicts between. Porter's testimony and that given by Pingel, we
credit Porter's testimony. We also credit Porter's denials of com-
munist membership or activity. We believe that Pingel transmitted
to Weinstock her knowledge of the union group's action and probably
also, through the same confusion of thought which led her to file the
communist leaflet tinder "labor miscellaneous," advised him that the
members of the group were Communists. We find, as did the Trial
Examiner, that Weinstock motivated by a desire to stop employee
organization, questioned Porter and Berg on both communism and
unionism and caused Finch to question Lissemore and Gilbert similarly
and to indicate to them Weinstock's hostility toward unions. We
likewise credit the testimony of Lask as opposed to that of Pyle and
the testimony of Fischbach as opposed to that of Finch.
Upon the entire record in the case we find that the respondent
discharged Grace Porter because of her membership and activity in
the B. S. A. U. We find that the respondent. thereby discriminated
in regard to her hire and tenure of employment, discouraged union
membership, and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. We
also find that the respondent, through the action.of its supervisory
officials in interrogating and coercing Gilbert, Lissemore, Berg, Lask,
Porter, and Fischbach with respect to union. activities, at a time
critical in employee organization, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
. After her discharge by the respondent Porter was unemployed until
the end of May 1936, at which time she became secretary to the head
of the technical department of a travel organization. Subsequently,
she was transferred to the position of secretary-assistant to the head
of the selling department of that organization. For 2 months Porter
received a salary of $25 a week from the travel agency, after which
she received an increase to $27.50 and, at the end of the year, a
1116 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
further increase to $32.50. Porter first testified on January 30, 1939,
at which time she was receiving a salary of $37.50. In April 1939,
while the hearing was still pending, Porter was put on half time,
with a reduction in salary to $22.50: Shortly afterward she was
notified of her dismissal,- effective May 26, 1939. Porter wishes to
be reinstated to her former position with the respondent and had this
desire even before she was put on half time.
C. The discharge of Fred Jaeger
In February 1920 Fred Jaeger was employed by the respondent as
a part-time reporter for the Arrival of Buyers column published in
The New York Times. Jaeger also did work on the outside for some
time as a cartoonist and until at least as late as 1932 conducted a
real estate business. Jaeger engaged in these outside ventures with
the knowledge and consent of the respondent. In 1928 Jaeger made
arrangements with David H. Joseph, the respondent's city editor, to
cover miscellaneous night reportorial assignments on an hourly
paid basis. This additional work continued until May 1932, when
the respondent dropped all such special assignments as an economy
measure. In 1928 or 1929 Jaeger. was put on full time in his work for
the Arrival of Buyers column.
Jaeger's initial salary was $20 a week. As a result of various pay
increases, he was, in November 1929, drawing a weekly wage of $45.
In December 1929 the reporters on the Arrival of Buyers column
were given additional clerical work and were each awarded an increase
in pay of $3 per week. This raise brought Jaeger's salary to $48.
in 1.932 Jaeger's salary was reduced to $43.20 by the application of a
general 10-per cent pay, cut. It stayed at that figure for the remainder
of his employment with the respondent.
The Arrival of Buyers column is published every day except Sun-
days as part of the business news section of The New York Times.
The column lists the names of out-of-town buyers visiting New York
City, the name and location of the store represented by each buyer,
his field of merchandise, and his headquarters in New York City.
These data are obtained by a staff. of five men, of whom three obtain
their information by visiting resident buying offices and two procure
the names of buyers from hotel registers.
From 1920 to October 20, 1936, the hotel men were Edward J.
Stewart and Bernard F. Mulligan, while the men covering the resident
buying offices were Fred Jaeger and Joseph Waters. James Holland
became a reporter on the buying office side in •1928, replacing an
employee whose identity is not revealed in the record. For some
time prior to October 20, 1936, ill will existed between Jaeger on the
one hand and Waters and Stewart on the other.
The men covering the resident buying offices are required to call
THE NEW YORK TIMES COMPANY 1117
personally at the offices assigned to them, gather the names of :visiting
buyers, return to the respondent's offices, type up lists of the buyers'
names, merchandise, and so forth, and turn such lists in to Waters.
Waters assembles this copy into a master list which is sent to the
composing room. Waters usually leaves the office at about 9 p. m.,
and Stewart is then in charge of copy. From 1933 on, the deadline
for submission of such copy to the composing room has been 7:30
p. m.; in prior years the deadline was.8:30 p. m: or 9 p. in.
The hotel men make two rounds, reporting to. the office after the
first at about 6:15 p. m. and after the second at about 11:30 p. in.
Names obtained by the hotel men on their first round are checked with
the copy of the office men. The combined copy appears, barring
delays for any reason, in the first edition of the respondent's news-
paper. The buyers' forms for the first edition are locked up at
10:15 p. in., and the entire edition goes to press at 10:45. Proofs on
the buyers'. copy for the first edition come to the business news depart-
ment from 8:30 to 9:30 p.. m. Any additional names procured by the
hotel men on their second round are added to the Arrival of Buyers
column in time for the late city (or third) edition, which goes to press
at 1:45 a. in. Since the first edition is primarily' a mailing issue, while
the late city edition is that. usually sold on the news stands in mid-town
New York, the latter edition is more important than the former so far
as the Arrival `of Buyers column is concerned.
The business news department maintains a set of loose-leaf books
in which are listed the names of buyers and other information of the
same character as that appearing in the Arrival of Buyers column.
These books are used as reference sources, particularly by the hotel
men, who must check many of the names they obtain from the hotel
registers. Since December 1929 each of the five men' working on the
column has been required to keep four of the books up to date by add-
ing new names or making other necessary changes. The men are also,
required to retype individual pages as they become too crowded or
worn out, and an effort is made to retype the books as a whole once
a year.
The size of the Arrival of Buyers column and the amount of work
it requires vary at different seasons and on different days of the week.
January and February, the spring buying season, and July and August,
the fall buying season, are ordinarily the busiest months, while the
earlier days of the week require more work than the later days. On a
heavy day in one of the busy seasons the listing of buyers may occupy
five newspaper columns; on a Saturday during a slack season the list
may take up one-tenth of a column or less.
These variations in the requirements of the work mean that the
reporters are very busy on some days and comparatively free on others.
Part of the time not employed in obtaining the buyers' names and
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preparing copy is used for work on the file books or on miscellaneous
clerical tasks, but this can be done at the convenience of the men
themselves. In their unoccupied time the buyers' reporters, like the
other men on the respondent's news and editorial staffs, may do as
they please. Thus they may converse with other employees, visit in
other departments, and engage in various forms of recreation on the
respondent's premises. This liberty of action is subject only to the
general understanding that employees at leisure must not disturb
employees at work.
In 1927 Charles F. Hughes became the respondent's business news
editor. As such he was head of the business news department and
exercised supervision over, among others, the buyers' reporters.
In 1931 or 1932 Hughes reprimanded Jaeger for permitting his real
estate interests to cause interruptions in his work. In order to impress
the criticism, Hughes required Jaeger to make a check on buying
offices for a time.16 In 1932 or 1933 Stewart complained to Hughes
that- Jaeger was turning in his copy late. Hughes again spoke to
Jaeger and this time required him to report at the office at 1 p. in.
before starting on his rounds; normally, the men began their rounds
between 1:00 and 1:30 p. m. without first coming to the office. This
measure stayed in effect for 2 or 3 months. -
Beginning with the summer of 1934 Jaeger became very active in
the Guild. At that time he took a prominent part in a strike called
by the Guild against a publication known as the Staten Island
Advance. In the fall of 1934 Jaeger became one of the four persons
most active in reorganizing The New York Times Unit of the Guild
from a "pseudo-professional organization basis" to a "labor union
organization basis" and was elected a member of the council of that
unit. Jaeger also became the unit's deputy comptroller and organizer
for the respondent's sports department, an alternate delegate to the
Representative Assembly of the Guild, and, at a later time, a delegate
to the Representative Assembly. Jaeger did editorial work for the
unit's Fortnightly News Letter and helped distribute that periodical.
In general, Jaeger was one of the three or four most energetic and
prominent members of the Guild in the respondent's employ and was
recognized as such by his fellow employees and by the respondent's
officials.
Jaeger engaged in a large portion of his activity on behalf of the
Guild during working hours and on the respondent's premises. Thus
he visited the city room possibly once an evening and the sports
department about 4 times a week, almost always on union business,
15 Our findings in this paragraph are based on Hughes ' testimony . Jaeger denied that he was ever re-
proved for having his real estate activities interfere with his work , but did testify that he was once disciplined
by Hughes . Since Jaeger did not recall the delinquencies which occasioned the discipline or the nature of
the discipline itself, we conclude that Hughes' circumstantial testimony represents a better recollection of
these events than Jaeger's.
THE NEW YORK TIMES COMPANY 1119
and conferred from time to time on such matters with employees
who came to see him in the business news department. As we have
seen, conduct of this sort was permissible so long as it did not interfere
either with Jaeger's own work or with the work of other employees.
The respondent contends that Jaeger's actions transgressed both of
these limitations.
Hughes testified that from the beginning of 1935 until October
1936 he found it necessary to speak to Jaeger a dozen or more times
about the lateness of his copy or about his neglect of his file books,
and that on these occasions he made it clear to Jaeger that there was
no objection to Jaeger's carrying on union activities if Jaeger did his
work on time. Hughes also testified that he was informed of Jaeger's
lateness in submitting copy by Stewart and Waters, and that these
reports were confirmed by his personal observations. He testified
that Jaeger would return to the office from his rounds at about
5:45 p. in. whereas the other reporters on buying offices would return
between 5:00 and 5:15 p. m.; and that Jaeger would then constantly
interrupt the preparation of his lists by leaving the office. Hughes
testified that on half a dozen occasions during this period the repre-
sentative of a buying office telephoned the business news department
at about 5 p. in. and said that Jaeger had not yet called on it. Stewart
testified that Jaeger would frequently turn in copy before the dead-
line, disappear from the office, then return and type up additional
copy, which he sometimes sent direct to the composing room. Stewart
also testified that Jaeger would make additions, running as high as
half a column, to the proofs. Stewart further testified that on
25 or 30 occasions between the fall of 1934 and October 20, 1936, he
found, after returning from his late hotel round at 11:30 p. in., some
of Jaeger's copy in his (Stewart's) basket.
Jaeger testified that during busy seasons he got his copy in at
7:30 or 8:00 p. in. and occasionally as late as 8:30 p. in. He testified
that he was often delayed, by the necessity of waiting at some of the
buying offices which did not have their lists available until after
5:30. Louis Bistrong, Jaeger's vacation substitute, contradicted
Jaeger as to the number of buying offices which delayed their lists
and also testified that it was not necessary to wait for late lists because
the buying offices would telephone in lists which had not been ready
when the reporter called. Jaeger also testified that Hughes com-
plained to him of late copy only once or twice; that he brought copy
to the composing room on one or two occasions only; that he added
names to the proofs very seldom; that these additions were few in
number; and that he kept his file books in "pretty good shape."
At the hearing evidence was introduced in the nature of a sampling
of the Arrival of Buyers column as it appeared in the first and third
editions of various issues of The New York Times. Counsel for the
1120 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
Board apparently contended that this evidence indicated that other
reporters beside Jaeger submitted late copy, that late copy did not,
as claimed by the respondent, result in numerous duplications appear-
ing in the column, and that a general disinterest in the column as it
appeared in the first edition was shown by. carelessness and omissions.
Counsel for the respondent contended that the sampling showed
Jaeger's frequent failure to have his copy ready in time for the first
edition. The sampling can be so interpreted as to lend support to
either view; we consider it to be lacking in any serious evidentiary
weight because of its fragmentary character and the indefiniteness
arising from the lack of any evaluation and explanation of various
relevant factors.
On several occasions in 1.935 or 1.936 Curtis, assistant sports editor,
complained to Hughes and James that Jaeger was disturbing the men
iil the sports department. Curtis himself died before the hearing, and
the only employee of the sports department who testified in substan-
tiation of these complaints was James Robbins, a yachting reporter.
Robbins testified, however, to only two conversations begun by Jaeger
while Robbins was' at his typewriter, of which the first occupied 30
seconds to a minute and the second 2 or 3 minutes. It is clear from
the record that these insignificant interruptions were within the normal
practices of the respondent's employees.
Raymond H. McCaw, the respondent's night managing editor, com-
plained to James on several occasions in the same period that Jaeger
was interfering with men working in the city room. McCaw testified
to the same effect. However, he named William L. Laurence, Her-
man H. Dinsmore, and an employee named Freeman, as the only
persons in the city room whom he saw Jaeger visit. Freeman did not
testify, but Laurence and Dinsmore both testified that Jaeger never
interfered with their work.
During -1935 and 1936 Hughes frequently complained to James con-
cerning Jaeger. James, however, told Hughes that he wished to
avoid creating any issue with the Guild. James testified to like effect
in explanation of the respondent's delay in taking action against an
employee against whom delinquencies were charged. James and
Hughes both spoke at various times to Laurence, chairman of The New
York Times Unit of the Guild,, about their alleged difficulties with
Jaeger. As a result, Laurence on several occasions cautioned Jaeger
not to let his union activities interfere with his own work or with that
of other employees.
On the record as a whole we are of the opinion that Jaeger did in
fact submit late copy with unwarranted frequency and that he did
sometimes bring to the composing room, at other times add to the
proofs, material he.should have earlier turned in to Waters. We are
also of the opinion that Jaeger was, as Hughes testified,, far behind in
THE NEW YORK TIMES COMPANY 1121
work on his file books in November 1935; we arrive at this belief in
part because Hughes' testimony is substantiated by a contemporane-
ous memorandum. On the other hand, we are of the opinion that
Jaeger did not disturb employees in the sports and city departments
beyond permissible limitations and that he did keep his file books
reasonably current during 1936.
We have in the foregoing surveyed certain general complaints of
Jaeger's work during 1935 and 1936. We now turn to a consideration
of specific episodes which occurred in those years.
In the spring of 1935 Stewart and Waters complained to Hughes
that Jaeger was not meeting the deadline, and Curtis told Hughes that
Jaeger was disturbing men at work in the sports department.. Hughes
himself observed that Jaeger was returning late to the office from his
rounds and was interrupting the preparation of his lists. Hughes also
found a 2-week accumulation of material which Jaeger had not yet
posted in the file books. Hughes then spoke to Jaeger and said that
he noticed that Jaeger was engaging in outside activities. Jaeger
expressed surprise at the comment and pointed out that he had always
done outside work, particularly in connection with his real estate
business. Nevertheless,. Hughes ordered Jaeger to report each day at
the office at 1:00 p.m. before going out to get his news-a practice not
normally required-and, as a disciplinary measure, to conduct a check
of the smaller buying offices. Hughes also directed Jaeger to give his
complete attention to his work until 9 o'clock at night and com-
mented that these measures would stop Jaeger's "Guild activities." lB
These penalties continued in existence for about 6 weeks, at the end
of which time Jaeger said to Hughes, "I have learned my lesson."
In July 1935 Stewart again. complained to Hughes of Jaeger's late
copy. Hughes thereupon questioned Jaeger on the subject. Jaeger
said that he had more work to do than the other reporters and marked
in the newspaper's current issue the names of the buyers which he
had submitted; these names accounted for approximately half of the
entire list." Jaeger also said that he employed a more useful system
of listing than the other men. Hughes testified that he was skeptical
of Jaeger's explanation. Nevertheless, he authorized Jaeger to turn
2 of his offices over to Stewart, to be covered by the latter on Mondays
and Tuesdays, the 2 busy days of the week. Jaeger than^put a note
in Stewart' s mail box to the effect that Stewart should take 5 of
IA Jaeger testified that these restrictions were imposed in August 1935 . We accept Hughes' testimony as
to the chronology of this and certain subsequent events, as did the Trial Examiner . Our findings as to
Hughes' remark concerning stopping Jaeger 's union activities is based on the testimony of Jaeger. Hughes
denied making such a remark, but owing to the confusion as to the time of various conversations , caused
by the discrepancies between his testimony and that given by Jaeger , Hughes ' denial related to a subse-
quent conversation. We assume that Hughes ' denial was equally applicable to the conversation now dis-
cussed, but follow the findings of the Trial Examiner both as to the making of the remark and as to the
conversation with which it was associated.
17 Jaeger consistently had the most buyers listed . On the other hand , the buying offices he covered were
within a smaller area, and hence more quickly visited, than those assigned to the other reporters.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jaeger's offices; among the offices added by Jaeger on his own initiative
were 2 of the largest on his list. On the following Monday, Stewart
received this note, protested to Hughes, and complained bitterly
against Jaeger. Stewart said that Bistrong, when substituting for
Jaeger, was able to get his copy in not later than 7:15 p. m.; that
Jaeger continued to get late copy to the composing room and to make
insertions on proofs ; that on the previous Monday night he had found
at 11:30 p. in. 2 or 3 sticks of Jaeger's buyer's copy that should have
gone up to the composing room before 7:30 p. m.; and that if Jaeger
"would cut out his Guild activities during working hours, the hotel
men would not have to go out and do his work." Hughes told
Stewart to cover all 5 offices on that day and said he would later
return 3 of them to Jaeger.
That evening Hughes reprimanded Jaeger for increasing the number
of offices to be turned over to Stewart and for the delinquencies which
Stewart had alleged. After a discussion of hours of work, Hughes
ordered Jaeger to adhere to a strict schedule of 1.:00 to 9:00 p. m.;
not to converse during working hours with persons not employed in
the business news department, and not to leave the confines of the
department, except to go to the toilet, without special permission.18
These instructions had the effect of restricting Jaeger's activities on
behalf of the Guild almost to the point of utter prevention.
A few weeks later Hughes changed Jaeger's hours at the latter's
request so as to allow Jaeger one-half hour, for supper. Thereafter
Jaeger worked from 1:00 p. in. to 9:30 p. in. Within a week or two
Hughes told Jaeger that he noticed that Jaeger was again carrying on
his activities in the sports department. Jaeger said that he was
carrying on legitimate union activities during his supper period, but
Hughes nevertheless ordered him to stay out of the sports depart-
ment.19 Jaeger did not obey these instructions.
In August 1935 the Guild was preparing for negotiations with the
respondent concerning numerous items , including that of wages. The
latter point included in particular the question of the general 10-per
cent wage cut and the discontinuance of special assignments . Employ-
ees who had lost the special assignments had also been subjected to
the 10-per cent pay cut, with the result that their total compensation
had been reduced more than 10 per cent. The Guild felt that this
situation was unjust and decided to bring it to the management's
attention. The Guild's negotiators conferred with Jaeger, who was
one of the employees subjected to the claimed unfairness , and acquired
an exaggerated notion of the amount that he had earned on special
18 Jaeger testified that Hughes also said : "The Times' management would like to see the Guild start some-
thing . The Times ' management is just waiting for the opportunity to wipe out the God damned Guild."
Hughes denied making these statements . We credit the denial , as did the Trial Examiner.
19 Hughes did not recall any reference to a supper period or "legitimate union activities " in a conversation
with Jaeger. Our findings , based on Jaeger 's testimony , follow those made by the Trial Examiner.
THE NEW YORK TIMES COMPANY 1123
assignment work.20 Accordingly, they decided to present Jaeger's
case to the respondent as a special illustration of their thesis.
Laurence, chairman of The New York Times Unit of the Guild,
spoke to Hughes about Jaeger's case, stating that Jaeger's total
income from his salary and special remuneration had in 1, week gone
as high as $84, and that as a result of the wage cut and the stopping
of special assignments Jaeger had suffered a great injustice. Sub-
sequently, the Guild presented the issue to Sulzberger, claiming that
Jaeger had averaged from $65 to $70 a week and had received $84
in 1 week. Sulzberger asked James to investigate. In' the mean-
time, Hughes had checked with the editorial auditor and had found
that Jaeger's extra earnings had averaged only approximately $9 a
week, which, with his regular salary, made his total average income
about $57 a week. He had also found that while Jaeger had received
on several occasions checks for $84, these had lumped the earnings
from special assignments for several weeks. Hughes gave this data
to James, who in turn transmitted the information to Laurence.
Hughes also spoke to Laurence directly, and the latter indicated his
perturbation over the Guild's error.
Sometime later in August 1935 Hughes called Jaeger to his desk
and began a conversation by recalling to Jaeger the friendly terms
which had existed between them some years back. Jaeger inter-
rupted and told Hughes to "get to the point." This remark angered
Hughes, who then "read the riot act" to Jaeger. Hughes told Jaeger
he would have "to cut out his nonsense," do his work in the same
fashion as the other men, and eliminate "the organization activities
that interfered with his work." Hughes added that Jaeger was not
doing the Guild any good; that Jaeger had wiped out a possible
benefit for other employees by giving the Guild "a bum steer" on
the wage negotiations; and that Jaeger had been made out "a God
damn liar." Hughes also chided Jaeger for going over Hughes' head
in placing the question of his salary adjustment in the hands of the
Guild.21
Early in November 1935 Hughes checked on the buyers' file books
and found that Jaeger was far behind on the four books assigned to
him. On the evening of Friday, November 15, 1935, The New York
Times Unit of the Guild distributed its first issue of the Fortnightly
News Letter. The mimeographed copies of this publication were
folded in and distributed from the business news department by
Jaeger and union members from other departments. This first
bulletin carried a number of items concerning Jaeger's activity in the
20 There is some confusion in the record as to whether Jaeger or the negotiators or both were responsible
for the misapprehension . The allocation of the fault for the mistake is, however , not material.
21 Hughes testified that he did not recall making any statement to this effect. Our conclusion. that it
was made is based on the testimony of Jaeger and the findings of the Trial Examiner.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guild, including a report of his election as a delegate to the Guild's
Representative Assembly.'
Jaeger testified that about 10 minutes after 9:00 that evening his
wife and son came to the respondent's outer office; that Hughes was
then away from the office; and that he went to the outer office,
stayed 10 or 15 minutes, and then returned to his desk. Hughes
testified that he and his wife went out for dinner at 7:00 p. m.; that
Jaeger was not then in the office; and that on his way out he saw
Mrs. Jaeger and her son in the outer office. Hughes further testified
that he returned. to the business news department at 8:00 p. in. and
left for the city room at 9:00 p. m.; that Jaeger was absent in the
interval; and that he returned from the city room at about 9:15 p. in.,
and found .Jaeger at work. We do not find it necessary to resolve
the conflicting elements or implications of this testimony.
When Hughes saw Jaeger, he asked Jaeger where he had been.
Jaeger testified that he explained to Hughes that he had been to see
his .wife and son for a few minutes. Hughes testified that Jaeger said
he had been giving news leads to James and to Cohn, the photograph
editor. Whichever the correct version-and we do not find it neces-
sary to resolve the conflict-both men became angry. A heated
altercation ensued, in the course of which Jaeger said that Hughes
was only a "foreman" and could not discharge him.
On Monday, November 18, 1935, Hughes addressed a memorandum
to James in which he restated an oral recommendation that Jaeger be
removed from the business news department. The memorandum
summarized, Hughes' views of Jaeger's alleged delinquencies and com-
plained, with supporting details, that Jaeger failed to get his copy in
promptly, neglected his file books, gave trivial and false excuses for
ignoring instructions, and was guilty of insubordination. It stated
that Jaeger's work. was interrupted by his activities for the Guild and.
concluded:
I may add that this is likely to be a "martyr" case for the Guild
but it looks very weak indeed. In any transfer I would advise a
job keeping him strictly to a desk on regular routine. Otherwise,
The Times might as well pay salary to a paid organizer of the
Guild.
James discussed Hughes' recommendation with Sulzberger, who
instructed James to avoid creating an issue with the Guild over Jaeger.
Some time later Sulzberger called in Hughes, and told him in the words
of Sulzberger's testimony, "as distasteful as Mr. Jaeger might be to
him personally, I did not want him to take any action with respect to
him because I did not want an issue."
James informed Hughes that the request for Jaeger's transfer was
denied. However, under insistence from Hughes, James agreed that
Hughes might place Jaeger on probation for 30 days, and that Hughes
THE NEW YORK TIMES COMPANY 1125
might drop Jaeger from the department if Jaeger 's work . during that;
period was not satisfactory.
Hughes notified Jaeger of his probationary status. The next day.
Jaeger apologized to Hughes for some of the statements lie had made
on the previous Friday night.
As a result of being placed on probation , Jaeger dropped all Guild
activity . ' His work and conduct during the probationary period was
satisfactory to Hughes.
At the end of December 1935 or in January 1936 , Jaeger asked
Hughes what was the result of the probation . Hughes replied,.that
Jaeger "had done very nicely ," that his conduct had been perfectly
satisfactory inasmuch as he had. stopped his outside interests , and that
there would be no further trouble if he kept up " the good .work."
Hughes also told Jaeger to " go ahead as before, " a statement which
Jaeger understood to mean that the special restrictions were lifted..
Although Jaeger did not thereafter consider himself subject to restric-
tions, nevertheless , he still refrained from engaging in union activity
until February or March 1936.
At that time Jaeger resumed his work for the Guild in the sports.
department , at the request of Laurence . Shortly thereafter Jaeger
spoke to James Robbins on two different occasions while Robbins was
at work in the sports department , in an effort to interest the latter in,
joining the Guild. Although, as we have already - indicated, these
episodes were inconsequential in nature , Robbins spoke to Hughes
about Jaeger 's "pestering him." Curtis , the assistant sports editor,
who had been informed by Robbins of the first conversation and was
nearby when the second occurred , also complained to Hughes that
J,neger was annoying his men.
Jaeger testified : " During this period I was very careful and watched
my step in every way not to give offense , only carrying on this work
in the sports department strictly on my own time, and when Mr.
Hughes was not around ." We accept the correctness of this „testi-
mony, as did the Trial Examiner . However, after Hughes received
the complaints from Robbins and Curtis , he ordered Jaeger to. stay
out of the sports department . Jaeger replied that he was carrying on-
legal union activities on his own time and intended to continue to:do
so. Jaeger testified that the restrictions on his movements and rela
Lions with others were then reimposed . Hughes testified : " These
restrictions were never removed. They were never imposed beyond
attending to his work ." In either case , the effect was the same:
Jaeger thereafter regarded the restrictions as being again in force.
In March or April 1936 Hughes instituted a particular regulation
for Jaeger, allegedly because Jaeger's work in maintaining the file
books was falling behind , whereby Jaeger was required to put in.
Hughes' desk at the end of each day the pages he had prepared for
323429-42-72
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the file books during that day. Hughes found that on some days
Jaeger would turn in 2 pages; on other days, when Jaeger was "jacked
up a bit," his production would go up to 25 or 30 pages. However,
such variations were not unusual; the reporters did this work whenever
they thought best, and the amount of time they had free from their
non-clerical work was subject to considerable fluctuations.
During the spring and early summer of 1936, Hughes 'received
further complaints from Stewart and Waters that Jaeger was turning
in his copy later than the deadline of 7:30 p. in. For typographical
reasons it was particularly important at this time that buyers' copy
should not be delayed in reaching the composing room. Also about
this time Stewart and Mulligan complained to Hughes that Jaeger
was using ditto marks in the file books, a system which led to confusion
in entries because interpolations were constantly made. Bistrong,
then substituting for Waters, told Hughes that Jaeger was refusing to
follow the prescribed course of listing cities in alphabetical order under
the names of the buying offices.
In September 1936 Stewart complained to Hughes that Jaeger and
other employees active in the distribution of the Guild bulletin were con-
ferring in the business news office at night, practically taking it over, and.
disturbing the hotel men at work on copy for the late edition. Hughes
warned Jaeger that he and his associates would have to be more quiet.
In October 1936 Hughes stopped distribution of the bulletin from the
business news office allegedly because of Jaeger's disregard of the
warning.
On the night of October 19, 1936, Stewart learned that Jaeger had
brought to the composing room at about 10:30 p. in. a, half column of
buyers' copy. The next afternoon Stewart informed Hughes of his
discovery and said that this represented a practice of Jaeger's which
had been going on for about 2 years and should be stopped.
`In the evening of the same day Jaeger came into the office at about
8 o'clock. Hughes asked him where he had been and Jaeger said
that he had been at supper. After a brief discussion as to the length
of time Jaeger had taken for supper, 22 Hughes told him, "You are
through." Jaeger said: "Do you mean on the Times?" Hughes
replied: "You are through so far as this department is concerned.
Report to Mr. James in the morning." Jaeger asked for the reasons,
and Hughes said there were a number of reasons: "his copy had been
late; he had sent up a half column of proof to the composing room;
his production on the file books was very meager; on the previous
Friday he had been away from his desk more than half the time."
The two men then became involved in an argument which culminated
79 Hughes testified that when Jaeger said he had been at supper, Hughes asked : "For 2 hours?", to which
Jaeger responded : "Yes, what are you going to do about it?" 'Jaeger denied making this remark . we adopt
the findings of the Trial Examiner that Jaeger did not make this statement.
THE NEW YORK TIMES COMPANY 1127
in Hughes' summoning the door attendant to escort Jaeger from
the room. Jaeger then left.
On the next morning James told Sulzberger of what had occurred.
Sulzberger testified that lie was very angry about the incident because
of Hughes' disregard of instructions, but that he realized that it would
be impossible for Jaeger to remain in Hughes' department. James
and Sulzberger discussed transferring Jaeger. James said that there
was no room for Jaeger on the city, Wall Street, or sports staffs.
.He pointed out that Jaeger had been working in the wholesale garment
district and said: "Maybe we could get a job for him in the advertising
department just to avoid firing him out-and-out." Sulzberger
approved of this suggestion and said he would arrange the matter with
Colonel Julius Ochs Adler, the respondent's vice president and
general manager.
Sulzberger subsequently asked Adler to accept this plan in order
to avoid an issue with the Guild. Adler objected at first but finally
agreed to put Jaeger on soliciting advertisements, preferably for the
business page. Adler then instructed Charles C. Lane, in charge of
the advertising and business departments, and Don Bridge, the ad-
vertising director, of the respondent's intention to transfer Jaeger.
Bridge told Adler that he would rather not take Jaeger; he testified
that his reluctance was due to his understanding that-Jaeger was a
troublemaker. Lane told Adler that he doubted that Jaeger was
fitted by his previous work to sell advertising.
At that time, Louis S. Berger, manager of the display classified
division of the advertising department, was anxious to employ a sales-
man to solicit advertising for the business page.' He had already been
authorized to employ such a man and was then in the process of in-
terviewing candidates for the job. Bridge told Berger that he did not
need to interview any more persons; that Jaeger, who had been on the
staff of the business news department and had some knowledge of the
business page, was to be transferred into advertising; and that Berger
could try Jaeger in the business page opening.
In the afternoon of October 21, 1936, Jaeger-conferred with James
and David H. Joseph, the respondent's city editor. Jaeger. criticized
Hughes severely. James said that the question had become one of
keeping either Hughes or Jaeger in the business news department and
that Hughes was the more valuable employee. Jaeger asked to be
transferred to the city staff and suggested that the reporter he would
there displace should be assigned to the business news department to
observe Hughes' conduct. Joseph indignantly rejected this suggestion.
James told Jaeger that he was being transferred to the advertising
department to solicit advertisements from wholesale clothing manu-
facturers, a field of advertising which the respondent was attempting
to reestablish as a source of revenue. Jaeger protested that he was
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not qualified for the work , that the field was difficult , and that his
supposed contacts in the garment area would not be useful . He asked
what would happen if he was unable to sell such advertising . "James
said that was not a good attitude and that this bridge would be
,crossed when they came to it:
Soon after this conversation Jaeger had a brief conference with
Sulzberger and James. Sulzberger told Jaeger that "in a large busi-
ness organization as ours was , the executives had to be supported"
and that Jaeger would ' be moved to the advertising department.
Jaeger asked what would happen if he did not "make good" there.
Sulzberger assured him that "being moved to the business office did not
mean- the skids were under him, and that he would be given a per-
fectly fair trial, but that of course we could not give him any guarantee
of employment ." Jaeger testified that Sulzberger said that if Jaeger
did not succeed in the advertising department he would then be
transferred to the news staff. Sulzberger denied making any such
promise. We credit this denial but are of the opinion that Jaeger
honestly, though erroneously ., interpreted some of Sulzberger 's assur-
ances as equivalent to such a guarantee.
Soon after this conversation with Sulzberger , Jaeger was introduced
to his new work, the transfer becoming formally effective on October
26, 1936. Bistrong took the position vacated by Jaeger.
By virtue of his transfer to a commercial department , Jaeger was
unable to remain a member of the Guild under the then existing
eligibility rules of that organization.
For 3 weeks after his transfer to the display classified division,
Jaeger was given training for his new work. Thereafter , he solicited
wholesale business page advertising of women's apparel and allied
merchandise . The classification , formerly a substantial one, had for
some time past been a poor source of linage, and the obtaining of
business in that field was admittedly a very difficult task. Two other
solicitors also, devoted part of their time to the classification, but
until February 1937 Jaeger was the only salesman to allot to it the
principal part of his time. On a few special occasions , however, Jaeger
was assigned for short periods to assist in soliciting advertising for
other- classifications.
Jaeger worked at his new job with great diligence , but was unable
to obtain a satisfactory volulne of business . During the period of
approximately 7% months in which he solicited advertising , Jaeger
obtained a total of $645.09 in advertising . During the same period
his salary remained $43 . 20 a week, and he also drew about $300 extra
'from bonuses distributed among the employees of the display classi-
fied division . In fact, Jaeger was transferred to that division just in
time to become eligible for a bonus of $120 , paid to him in December
1936.'
THE NEW YORK TIMES. COMPANY 1129,
On February 4, 1937, Berger addressed it memorandum. -to Don
Bridge, the respondent's advertising director. The_.memorandum
read:
Mr. Jaeger came to this department October 23, 1936!- He-
was given preliminary training until November 9. After that
he was sent out with other salesmen, or on his own.
He brought in no orders in November. In. December, he
brought in a total of 188 lines. In January, no. orders.
In other words, during the last 12 weeks, he has brought' ,in
business equivalent to about 3 of his salary. This would not be.
very serious if I felt that Jaeger were making progress so -that
eventually he might be a good sales representative. But that.
is .not likely. While he has gone whole-heartedly into the busi-
ness of trying to learn to be a salesman, has cooperated fully, has
given no possible cause for complaint about his actions and atti-
tude towards his department head or fellow-salesmen, he lacks
the instinct, personality, quick-wit and resourcefulness that must
be a prerequisite for real sales success. I believe now that we
can never make an advertising man out of him.
We are not only marking time, but wasting it by continuing
to keep Mr. Jaeger on the job. The attention given to him
might be better spent on other members of the staff. . ' ,
In fairness to Mr. Jaeger, then, and to The New York•Times
and to this department, some other- disposition of his service's'
should be made. If we want to continue to keep him, I think-
we ought to assign him to some other kind of work, perhaps in
the Circulation Department. I should like to go ahead with the
hiring of a Business Page representative who can do the job that.
I feel needs to be done.
On February 5, 1937, Bridge sent to Adler a copy of Berg'er's'
recommendation, together with a covering memorandum of his own
endorsing Berger's analysis. Adler replied to Bridge on February 8,
1937, as follows:
If, in your opinion, the Display Classified Department requires
an additional staff member for the Business Page, please arrange,
to employ someone. This is not to be contingent, in any way.,
upon the release or transfer of Mr. Jaeger-from these duties.
I do not consider that three months' is an adequate test, in
accordance with our assurance to Mr. Jaeger.. I prefer not, to
have the matter renewed until he has had a full six months' trial.
As a result of the stand taken by Adler, the respondent- hired..
Philip Kaplon on February 23, 1937, to solicit advertising for-'the,
business page. Kaplon, a salesman of long and varied experience,?
was more successful than Jaeger; nevertheless, his production was,
1130 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
considered poor, and he was discharged for "lack of productiveness"
on September 30, 1937.
On April 15, 1937, Jaeger and Leonard H. Goldsmith, another
advertising solicitor in the display classified division, agreed that since
the Supreme Court of the United States had 3 days earlier upheld
the constitutionality of the Act, there was a good opportunity to form
a union for employees of the respondent's commercial departments.
On the same day they communicated this idea to Jane Schwartz,
Leo Collins, and Land, all employed in the display classified division,
and Climenko, employed in the national advertising division of the
advertising department. Jaeger and Goldsmith also conferred
briefly with Jonathan Eddy, executive vice president of the Guild.
On the evening of April 16, 1937, Goldsmith, Schwartz, Land,
Donnet, and probably another employee named Blair, met at
Climenko's house. They discussed organizing and decided to meet
with representatives of the Guild and of the B. S. A. U.
On April 19, 1937, Jaeger, Goldsmith, Schwartz, Blair, Climenko,
and either.Land or Donnet met in the offices of the Guild with repre-
sentatives of that organization and a. representative of the B. S. A. U.
It was decided to establish an independent labor organization, spon-
sored jointly by the Guild and the B. S. A. U., for commercial em-
ployees of newspapers in New York City.
On April 21, 1937, 17 or 18 of the respondent's employees met at
the Times Square Hotel, selected for themselves the name of "News-
paper Office Guild of New York," and made plans to distribute
leaflets for a mass meeting about a week later. This meeting was
held about May 1, 1937-, in the Lincoln Hotel. It was attended by
30 or 40 employees from various New York newspapers who elected
temporary officers; the latter thereafter served until the dissolution
of the Office Guild. On May 17, 1937, a second mass meeting of the
Office Guild, held at the Hotel Astor, was attended by about 1000
persons.
Units corresponding to various newspapers were 'set up in the
Office Guild, The New York Times Unit being established early in
May 1937. At the end of May or beginning of June 1937, the Office
Guild adopted a resolution urging the American Newspaper Guild
to broaden its eligibility requirements so as to accept for membership
newspaper employees from departments other than news and editorial
departments. Later in June 1937 the American Newspaper Guild
voted in convention to extend its jurisdiction to employees in com-
mercial and allied departments of newspapers, wire services, and press
associations. A few days afterward the Office Guild adopted a
resolution to merge with or seek membership in the Guild and to
disestablish the Office Guild. Within 2 or 3 days the Guild opened
its membership rolls to members. of the Office Guild... Beginning
THE NEW YORK TIMES COMPANY 1131
July 10, 1937, a referendum was held by the American Newspaper
Guild on its convention's decision. The referendum was completed
by late summer or early fall of 1937 and resulted in an affirmation
of the convention action.
In addition to being one of the originators of the Office Guild,
Jaeger attended its organizational meetings, helped compose leaflets
distributed before the mass meeting at the Hotel Astor, nominated
the successful candidates for its president and vice president, and
became chairman of the Office Guild's organizational and educational
committee and editor of its official publication. The respondent
knew generally of Jaeger's activity and prominence in the Office
Guild. In fact, Berger and James knew that Jaeger was organizing
the office workers almost simultaneously with his first efforts in that
direction.
About April 21, 1937, Berger told Jaeger that his. work was un-
satisfactory, inasmuch as he was not bringing in any substantial
amount of advertising. When Jaeger explained that the type of
advertising was difficult to sell, Berger told him to "go out and see
what you can bring in."
On May 22, 1937, Berger compiled Jaeger's attendance record;
he testified that he did so because approximately 6 months had elapsed
since Jaeger had been in the display classified department. At this
time also he called to the attention of Bridge the lack of improvement
in Jaeger's sales record, spoke of the number of Jaeger's latenesses, and
again recommended Jaeger's release. This recommendation, as well
as several others to the same effect made by Berger between February
and June 15, 1937, was not approved.
On May 21, 1937, Richard M. McDowell, a salesman in the display
classified. division, compiled for Berger, at the latter's request, a report
of the advertising linage procured by Jaeger and Kaplon, respectively.
A few days later Berger told Jaeger that he noticed that Jaeger's
linage had not improved and asked Jaeger if he kept a. record of his
linage. Jaeger said he did. not, whereupon Berger suggested that he
keep a record similar to that kept by another salesman.
On the morning of Monday, June 1, 1937, Jaeger went to solicit
business without first calling at the office. The salesmen were per-
mitted to make direct calls in this fashion, but were supposed to give
advance notice of their intentions to Berger or to Lillian Meerloo, his
secretary. Jaeger thought that he had left a note for Meerloo on
Friday, May 29-the preceding working day because of the interpo-
sition of Decoration Day and the week end-apprising her of his plans.
He had, however, not done so. While still away from the office on
the morning of June 1, Jaeger began to entertain doubts as to the
accuracy of his recollection and finally telephoned Meerloo. When
!1 132 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
Jaeger returned to the office, Berger reprimanded him for his failure
to notify the office in advance. Jaeger explained the situation, and
Berger said, "That could happen to anybody, but the powers that be
are on my neck and I have got to make a report." 2. Either at this
time or, a few days -later Berger ordered Jaeger not to make early calls
before arriving at the office unless he first obtained specific approval
from Berger in advance: This oral instruction was later confirmed
by a memorandum written by Berger to Jaeger on June 7, 1937.
Berger testified that, he instituted this requirement because he had
'observed that Jaeger "was going out into the field much too often,"
and he did' not see 'any reason for Jaeger's "frequently going to busi-
ness' before he reported to the office." In view of the nature of Ber-
'ger's testimony on other matters, subsequently discussed, and of
certain of his actions which will also be later reviewed, we do not
accept this explanation as being in accord with the facts or sincerely
made.
Also in the first week of June 1937, Berger ordered Jaeger to submit
each evening before leaving the office reports of the calls he had made
that day on prospective advertisers; all the salesmen made reports on
'calls, but the requirement of daily submission was limited to Jaeger,
even' though his reports had been submitted with reasonable
promptness.24
On the morning of June 8, 1937, Jaeger was delayed in arriving in
New York City from his home in Dobbs Ferry, New York, because of
a flat tire on his automobile. When he reached the city he telephoned
the respondent's office and told Donnet-Berger and Meerloo were at
the time out of the office-that he was going directly to an appoint-
ment. ' 'Donnet wrote a note to Meerloo giving the substance of
Jaeger's' call. Berger then sent Donnet's note to Bridge with a memo-
randum of his own, in which he-mentioned that he had written Jaeger
on the previous day not to make calls before arriving at the office
without advance approval.
When Jaeger arrived at the office later-in the day, Berger admon-
ished him for having gone to his appointment directly without per-
mission and told him to get a more reliable mode of transportation.
Berger also said that "It was all right" with him, but that "the powers
that be" were watching every move that Jaeger made and that Jaeger
should be very careful in the future.25
On June 15 Jaeger again had a flat tire. This time he arrived in
New York City later than before, telephoned to the office at about
9:25 a. m.; and arrived at work at about 10:20 a. m. The working
23 Berger denied making this statement, which was testified to by Jaeger. We credit Jaeger's testimony.
24 Berger denied making any special requirement regarding Jaeger's reports and testified that Jaeger's
reports "were in fairly promptly by comparison with some of the others." We credit Jaeger's testimony
that the requirement was in fact imposed.
26 Berger denied making these latter statements, which were testified to by Jaeger. We credit Jaeger's
testimony in this respect.
THE NEW YORK TIMES COMPANY 1133
day began at 9 a. m.' After Jaeger had telephoned, Berger went to
Bridge and told him of Jaeger's phone call. Berger also complained
to Bridge of Jaeger's latenesses and of Jaeger's having gone directly
to make a call on June 8 in violation of instructions. He told Bridge
that Jaeger did not produce much business and that "the least we
could do was to expect a man who was not producing a great deal, to
come in on time and obey routine." Berger then renewed his recom-
mendation that Jaeger be discharged. Bridge said he wished to with-
hold decision and asked Berger to supply a memorandum on the
subject. Berger then addressed a memorandum to Bridge, as follows:
Mr. Fred Jaeger came to this department on October 23, 1936.
His record since then has been very bad. He has produced
very little business, so little that I am sure it does not justify
any hope that he will become a useful salesman on the force.
The record shows that he brought in less than one-third of the
amount we paid him in salary. That is bad enough, but to make
matters worse his attendance is the worst in the department.
He has been absent 22 days. He has been late .40 times, in
spite of several reminders that we expect him to report at 9
o'clock.
On occasion, Mr. Jaeger would report to Miss Meerloo that
he was going to make a call the first thing the next morning
before coming into the office. When that became too frequent,
about two weeks ago, I told him I did not wish him to do that
any more unless he got specific approval from me in advance.
The next day, he telephoned; Miss Donnet received the call,
reporting that. Mr. Jaeger said he was caught "with a couple of
flat tires," and as he had a call to make on Mr. William Ewart
on. Franklin Street, lie would make the call first. I admonished
him for it that evening. Since then, he was late on June 9;
he was late yesterday; this morning, he telephoned to Miss
Meerloo at 9:30 to say he had car trouble, and that he was then
near the subway station at 238th Street and would come in by
subway. He arrived at 10:20.
I think Mr. Jaeger has had ample warning and I shall therefore,
with your approval, dismiss him when he returns to the office
tonight.
He is scheduled to go on vacation the last two weeks in. August.
I propose to give him his vacation effective tomorrow, and tell
hire that he need not return.
After Bridge received this memorandum lie spoke to Adler in sup-
port of Berger's recommendation to release Jaeger. Adler approved
the recommendation, and Bridge then notified Berger to discharge
Jaeger. Berger told McDowell he was planning to do so and asked
him to be present at the conversation. Berger also instructed Meerloo
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to listen to what.was said. Berger then called Jaeger to his desk and
notified him of his discharge. Jaeger asked the reasons, and Berger
said they were non-productivity, lack of effort, and repeated lateness.
Jaeger attempted to justify himself on all three grounds. Jaeger then
saw Bridge and repeated his contentions, but to no avail.
On June 17, 1937, Jaeger saw Sulzberger and Lane. Sulzberger
referred to Jaeger's lack of production. Jaeger replied that he had
been working hard, but Sulzberger questioned this statement because
of the number of Jaeger' s latenesses . Jaeger said that he had not
understood that lateness was regarded seriously, that he had worked
after hours, that Berger had referred to his tardinesses jocularly only,
and that Berger had expressed. unconcern as to the actions of the
salesmen provided they brought in business. After some further dis-
cussion, Sulzberger said that he would investigate the questions
Jaeger had raised and that future action would depend on the outcome
of the investigation. Jaeger then left. Sulzberger then asked Lane
"to make certain that Berger and not Jaeger was correct, and that
Jaeger had been misstating the case when he told of the manner in
which he had been warned with respect to his lateness, etc., etc." 26
Sulzberger also told Lane that "if he was satisfied that Mr. Berger
was correct, there was no reason whatsoever for not proceeding with
Mr. Jaeger's dismissal."
Lane's investigation consisted of asking Bridge whether the latter
thought there had been any injustice and of telling Berger that "if
he had any doubt in his mind as to the justice of dismissing Mr. Jaeger
on the basis of his violations of office rules, I wanted him to tell me so
frankly because it might be very embarrassing if he had any doubts
and they did not appear until later." 27 Berger said that he thought
Jaeger's discharge was justified and repeated the various charges he
had made to Bridge. Lane directed Berger to state his position in
writing. Berger did so in a memorandum to Lane dated June 17,
1937, of which Lane sent a copy to Sulzberger. This memorandum
stated that Jaeger's lateness had been called to his attention "in
routine fashion on many occasions," repeated the substance of Berger's
memorandum of June 15, 1937, and stated that "consistent lapses
[from routine], particularly on the part of a salesman whose record of
productiveness is bad or who has a great deal still to learn about his
job, cannot be condoned."
Also on June 1.7, 1937, Berger dictated for the files a memorandum
concerning Jaeger. This memorandum stated that Jaeger had
seemed at the outset, to apply himself well to learning his new job,
that he had been assisted in various ways, and that nevertheless his
. 26 This and the following quotation are derived from a memorandum account of the conversation written
by Sulzberger on June 18, 1937.
27 The quotation is taken from a report Lane wrote to Sulzberger on June 18, 1937, describing the steps
be had taken.
THE NEW YORK TIMES COMPANY 1135
record of productiveness remained exceptionally low. It also stated
that it became obvious that Jaeger's "personality and approach
militated too much against his success as an advertising sales repre-
sentative"; that Berger therefore recommended that Jaeger be dis-
missed or transferred ; and that Bridge tabled the recommendations
in order to give Jaeger "more time . to assure his being given
every possible opportunity to make good ." The memorandum con-
cluded as follows:
About three months ago , I began to observe that Mr. Jaeger
seemed to have outside interests which, obviously , were taking
his time during business hours. Although I had spoken to Mr.
Jaeger earlier during his stay in this department about his tardi-
ness, there was no marked improvement in that situation. He
was also absent very frequently for a day or two at a time , except-
ing for one illness during which he was absent for about ten days.
His outside interests obviously took time that might better have
been spent learning more about selling or seeing more clients.
In view of : his lack of productiveness ; the fact that he seemed
to show no improvement in his personality which was obviously
one that militated against his success as a sales representative;
his seemingly bad approach to the problem of learning how to
sell; his being himself not sold on the superiority of The Times
so that he could better tell our story ; his disregard of my requests
that he report on time, and his detrimental influence on the morale
of my staff-I finally decided that my department would be
better off without him.
In connection with the above quotation , it should be observed that
there is nothing in the record to support Berger's reference to Jaeger's
having "outside interests which, obviously , were taking his time dur-
ing business hours." On the contrary , Jaeger was very conscientious
while in the display classified division and even did much work after
hours. It is also apparent that Berger had in mind Jaeger's connec-
tions with the Office Guild in referring to "outside interests ." There
is nothing to indicate other " outside interests" on Jaeger 's part and
the time reference to "about three months ago " is consistent with this
view. Bridge also testified , in effect, that although Berger did not
explain the nature of the "outside interests ," he (Bridge) probably
though at the time that the reference was to Jaeger's union activity.
It also appears from the testimony of Bridge and Lane that they had
no knowledge and had received no complaints concerning Jaeger's
using business time for union activity.
A "removal form " concerning Jaeger was prepared for the respond-
ent's files on June 17, 1937 . This form stated as the reason. for
Jaeger's discharge : " Unproductiveness and chronically late, indicating
lack of application."
1136'- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After his conversation with Sulzberger, Jaeger reported 'to' work
for the next few days, awaiting word as to the results of the promised
investigation. On June 22, 1937, Lane sent for Jaeger and told him
that the investigation had disclosed no reason for retracting his dis-
charge. Lane also told Jaeger that he would receive no dismissal pay
because he had been guilty of serious violations of the respondent's
rules. During the conversation Jaeger charged that he had been dis-
missed because of his union activity. Lane reported to Adler his
refusal to give Jaeger dismissal pay, and on the. following day Adler
told Lane that it had been decided to allow such pay. Lane then sent
for Jaeger and told him he could have dismissal pay. Jaeger refused
to take it on the grounds that his doing so might prejudice his con-
tention that his discharge was discriminatory. Lane told Jaeger
either that there were "no strings to this payment" or that "we are
not trying to buy you off." 28 A few days later Jaeger accepted the
dismissal pay on advice of counsel for the Guild and informed Sulz-
berger in writing that he. did not intend thereby to waive, or settle
his claim of au illegal discharge. The amount of dismissal pay was
calculated by allowing the equivalent of salary, for a week and a half
multiplied by the number of years of service with the respondent;
it totaled approximately $1100.
In June 1937 Berger gave Jaeger ratings on a standard form used
in the respondent's advertising department. Such ratings, on a scale
of A, the highest grade, to E, the lowest, were given to employees in
that department in January of each year and on termination of their
employment. The ratings given to Jaeger by Berger in January and
June, 1937, were as follows:
Characteristics: January 1937
Productiveness_____ E
Sales Knowledge ------------------------------- D'
Personal Appearance ---------------------------- E
Attention to Duty ---- ------------ B
Cooperation and.loyalty----------------------- __B
June 1967
E
1)
E,
Initiative-ability to take appropriate action --- - _ __E E
Punctuality
Leadership-ability to direct others----- --------- E E
Tact ______________D D
On July 14, 1937, Berger filled out a form leaving notice for Jaeger,
wherein he stated as the reason for Jaeger's discharge: "Unproduc-
tiveness, excessive tardiness, and failure' to 'obey instructions in
routine matters." Two questions were asked in ; the form: "Would
you re-employ"; "Would you recommend for another Times depart-
ment." Berger answered "no" to each.
28 Lane testified to the version first stated above, Jaeger to that stated second. It is unnecessaryto resolve
the conflict in testimony since the meaning of the two versions is"essentially the same: Jaeger's acceptance
of dismissal pay would not be considered by the respondent a waiver of his claim of discrimination.
THE NEW YORK TIMES COMPANY 1137
At the end of July 1937 Berger rated all the employees in the dis-
play classified division; this special rating was made because Berger
was about to be displaced as manager of that division.. In each
of the categories of "Attention to duty" and "Cooperation and loy-
alty" Berger gave 21 A's, 2 B's, no C's, 1 D, and 1 E. The E's for
both characteristics were given to the same employee, Leonard H.
Goldsmith. In none of the other categories were as many as 21 A's
given, the next highest number of A's being 14 in each of "Produc-
tiveness" and "Tact."
In January 1938 Sulzberger directed . preparation of reports on
Jaeger for submission to the Board's Regional Director in connection
with the latter's investigation of charges filed by the Guild. Bridge
prepared such a report summarizing, from his point of view, the cir-
cumstances of Jaeger's discharge., This report stated, in part:
"Reasons for removal were (1) unproductiveness and (2) chronically
late arrival for duty." . Lane forwarded Bridge's report to Sulz-
berger together with a covering memorandum. Therein Lane stated
in part:
The direct cause of Mr. Jaeger's dismissal was his repeated
violation of office rules. He was late an unusually [sic) number
of times and in spite of directions to notify the office when un-
avoidably detained, he failed to do so. In addition he showed
an apparent inability to adapt himself to the requirements of a
salesman's work. His record of production, due largely I think
to these two characteristics, was lamentably weak, the total
advertising which he brought in representing about one-third of
the payments to him as salary.
The record contains a statement of Jaeger's absences and late-
nesses during the period he was in the display classified division. A
compilation of this statement follows:
October 1936: no absences or latenesses.
November 1936: no absences; 7 latenesses.
December 1936: one morning absence; 10 latenesses.
January 1937: one absence for illness; 8 latenesses.
February 1937: two absences for illness; 5 latenesses.
March 1937: 1 absence for illness; 3 latenesses.
April 1937: ill April 1 through 14, and 1.6, 1.7, 22; 2 latenesses.
May 1937; excused one day; one lateness.
June 1937: no absences; 4 latenesses.
The record also shows that lateness was fairly prevalent among the
employees in the classified display division. Thus in 1937 the six
employees with the worst late records were marked late 75, 67, 57,
56, 48, and 43 times, respectively. In 1938 six employees were marked
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
late 99, 91, 70, 65, 60, and 37 times, respectively.29 It is apparent also
from the record that Berger did not regard lateness as a serious fault
and that he communicated this opinion to his staff. Some of Berger's
testimony is to a contrary effect, but we do not credit it as against
other evidence. In this connection, we call particular attention to
the fact that although Berger had in January 1937 rated Jaeger E in
punctuality, he wrote on February 4, 1937, that Jaeger "has given no
possible cause for complaint. about his actions and attitude."
On cross-examination Berger testified, and we find, that in May 1937
when he recommended that Jaeger be discharged, Jaeger's punctuality
record had "improved considerably" and that Jaeger's punctuality
record for May and June 1937 was as good as that of anyone else in the
classified display division.
Conclusions as to Jaeger
The Guild contends that the transfer of Jaeger from the business
news department and his subsequent discharge were both acts of dis-
crimination. The respondent contends that it was justified in dis-
charging Jaeger for cause at the time the transfer was made, that it
would have then discharged him except for its desire to avoid an
"issue" with the Guild, and that the ultimate discharge was for cause.
We cannot accept any theory that the respondent's transfer of
Jaeger is indicative of its good faith, in view of the fact that Jaeger
was transferred to a job at which he could not possibly succeed. The
respondent's officials claimed that by assigning him to another
position they were giving him "another chance"; actually, they were
sending him to certain failure. This fact is demonstrated by the
following observations made by, the Trial Examiner in his Inter-
mediate Report:
The undersigned was convinced from his observation of Jaeger
at the hearing that he did not have either the ability or the
aptitude to be a salesman. His appearance, his mannerisms, his
speech, his personality, and the impression he made on other
people indicated that he was not the type of a man who could
sell-no matter how hard he tried. His work on the business page
had involved the routine collecting of easily available news and
the clerical work of typing and assembling the lists. It developed
neither the salesmanship nor the contacts required in the un-
usually difficult field to which he was assigned.
Corroboration of the Trial Examiner's analysis is supplied by Berger's
above-quoted memorandum of February 4, 1937, giving the appraisal
of an expert in salesmanship. Jaeger's inaptitude for his new duties
29 There was considerable dispute at the hearing as to the degree of accuracy of the late records . We do not
find it necessary to resolve the controversy.
THE NEW YORK TIMES COMPANY 1139
must have been, and we find that it was, apparent to the respondent's
officials. In fact, Lane and Bridge both expressed to Adler a reluctance
to take Jaeger in their department, and Berger's memorandum of
February 4, 1937, explained Jaeger's inability to become a successful
salesman. James' suggestion to Sulzberger that they transfer Jaeger
"just to avoid firing him out-and-out" carries the implication that he
was aware that the transfer would accomplish with deviousness the
same result as an "out-and-out" discharge. The lack of opportunity
accorded to Jaeger appears also from the fact that he was assigned to
an exceptionally difficult classification. Finally, any claim that the
respondent treated Jaeger with graciousness is rebutted by the un-
fairness shown in Sulzberger's instructions to Lane concerning the
promised investigation of Jaeger's contentions of June 17, 1937, and
in the "investigation" itself.
The bad faith attendant upon Jaeger's transfer is in itself an indica-
tion that the transfer was made on account of Jaeger's union activities.
Other. considerations point in the same direction. For over 14 years
prior to his having become active in the Guild Jaeger was employed
in the same position. That his work during this time was satisfactory
is shown by the rise in his salary. Then Jaeger became active in the
Guild. Almost simultaneously, he encountered rebukes and restraints
from his supervisor on account of alleged delinquenesci in his work.
It was complained that he was permitting his activities for the Guild
to interfere with the execution of his duties, and the restraints were of a
nature to impede his union actions. Yet Jaeger had engaged in vari-
ous outside activities during all or almost all of his preceding employ-
ment, and only a few, inconsequential difficulties had resulted there-
from. Eventually, Jaeger was transferred to a job he could not fill.
The transfer removed him from his membership in the Guild. His
production record in his new position was disappointing to his superior,
who recommended that Jaeger be transferred to another department.
At the same time, this superior praised Jaeger's efforts and attitude,
saying that "he has gone whole-heartedly into the business of trying
to learn to be a salesman, has cooperated fully, has -given no possible
cause for complaint about his actions and attitude towards his
department head or fellow-salesmen." Then Jaeger became active
in organizing the Office Guild. Thereupon, his superior discovered
that Jaeger was guilty of all sorts of delinquencies, subjected him to
various reprimands and restraints, and recommended not his transfer
but his discharge. Eventually, Jaeger was discharged, and his
activity in organizing the respondent's employees was thereby
terminated.
The correlation in time between Jaeger's union activities and his
difficulties with Hughes, together with the shown similarity in pattern
between the events in the business news department and those in the
1140 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
advertising department raise a considerable suspicion that his transfer
was discriminatory. On the other hand, some of the complaints made
of Jaeger's work in the business news department* were clearly justified
Jaeger on several occasions showed towards Hughes an extremely
provocative attitude; there undoubtedly arose a serious personal
friction between Hughes and Jaeger; and Hughes had been informed
that his superior, Sulzberger, wished to avoid an "issue" with the
.Guild over Jaeger.
It is, however, unnecessary to resolve the. difficult issue as to the
motive for Jaeger's transfer, since the evidence demonstrates that his
discharge from the display classified division was discriminatory. It
is apparent that Berger's attitude toward Jaeger changed markedly
after the latter had commenced his activity for the Office Guild.
Whereas Berger had on February 4, 1937, expressed satisfaction with
Jaeger's industry and conduct, he began in May to complain that
.Jaeger violated office routine. He also imposed on Jaeger restrictions
which, as we have seen, had no justification in Jaeger's actions. The
complaints of Jaeger's misconduct on which Berger based, in part, his
recommendation for Jaeger's discharge were largely spurious. We
have already seen that there was no substance in his assertion that
Jaeger "was going out into the field too much." Berger's major
complaint of misconduct-Jaeger's latenesses-was even more obvi-
ously manufactured, as shown by the prevalence of lateness in Berger's
division and Berger's habitual indifference towards unpunctuality. In
addition, Jaeger was late more frequently before February 4, 1937,
than afterward. Yet on February 4, 1937, Berger informed Bridge
that there was no "possible cause for complaint" against Jaeger. When
Berger did start complaining to Bridge of Jaeger's latenesses, there
was, by Berger's own admission, no basis for complaint. It has, also,
already been observed that Berger's statement of June 17, 1937, that
"about three months ago, I began to observe that Mr. Jaeger seemed
to have outside interests which, obviously, were taking his time during
business hours," referred to Jaeger's union interests and was not
founded in fact. The statement reveals, therefore, that Jaeger's union
interests were objectionable to Berger per se. In June 1937 Berger
rated Jaeger E in "attention to duty" and "cooperation and loyalty,"
whereas he had in January 1937 rated Jaeger B in each characteristic.
Since there appears no basis in Jaeger's attitude towards his work for
such a drastic drop in rating, and since Berger was generous with high
ratings in these categories except in the case of Goldsmith, who was
also one of the organizers of the Office Guild, we conclude that Berger's
June ratings were based on a distaste for Jaeger's union activity.
Obviously, the vague contours .of the characteristics selected easily
lent themselves to an expression of such a prejudice. -Berger's
attitude, when Jaeger was delayed by flat tires also seems false and
THE NEW YORK TIMES COMPANY 1141
disproportionate to the degree of Jaeger's offense, particularly in view
of the degree of discretion normally allowed to the advertising sales-
men in regulating their own actions and timing their calls on pros-
pective advertisers.
In view of the considerations stated and of the further circumstances
that, as will subsequently appear, Berger was extremely hostile
towards the Office Guild and translated this hostility into action in
other instances, we find that Berger, motivated by animus towards
Jaeger's union activity, built a misleading record unfairly charging
Jaeger with violations of the respondent's rules. The evidence
demonstrates that this record was the cause of Jaeger's discharge.
Berger testified that he recommended Jaeger's discharge for two
reasons: "his failure to produce and his violation of routine regula-
tions, particularly in view of that failure." When Berger first recom-
mended Jaeger's removal from his division on account of lack of
productivity he indicated a belief that Jaeger should be transferred
elsewhere. However, when he filled out Jaeger's leaving notice, .he
stated that he would not "recommend for another Times department."
Bridge's report of January 1938 stated that the reasons for Jaeger's
removal were "(1) unproductiveness and (2) chronically late arrival
for duty." Lane's memorandum of January 1938 stated: "The
direct cause of Mr. Jaeger's dismissal was his repeated violation of
office rules." When Jaeger conferred with Sulzberger on June 17,
1937, the latter felt impelled to investigate Jaeger's contentions that
he had not been guilty of neglecting his work and that he had not
been seriously warned on his latenesses. Lane, who conducted the
investigation for Sulzberger, asked. Berger to state "if he had any
doubt in his mind as to the justice of dismissing Mr. Jaeger on the
basis of his violations of office rules." Sulzberger testified that
Jaeger was discharged "not because he did not turn in business, but
because he did not try, in our judgment." Sulzberger also testified
that if he had been convinced that Jaeger had "tried and made an
honest effort" the latter would not have been discharged in June 1937.
It is clear from the above that Jaeger was discharged in June 1937
because of the record of alleged misconduct built by Berger for anti-
union reasons. It is also clear that absent this record Jaeger would
probably have been transferred to another position.
The Trial Examiner concluded in his Intermediate Report that the
evidence did not support a finding of discrimination against Jaeger.
The Trial Examiner did not, however, analyze the events which
occurred after Jaeger's transfer, apparently on the basis that the
transfer was tantamount to a discharge. In fact, however, Jaeger
was not discharged at the time of his transfer but continued in the
respondent's employment. Even assuming that the respondent had
good cause to discharge Jaeger in October 1936, it does not follow
323429-42-73
1142 DECISIONS '0F NATIONAL LABOR RELATIONS BOARD
that the respondent's forbearance at that time gave it carte blanche to
violate the Act in the future.. And while an employer does not
commit an unfair labor practice in discharging an employee because
of his unfitness for his position, it may not legally dismiss even an
unfit employee if its purpose is not to eliminate incompetence but to
discourage union activity.
Having found that Jaeger's discharge was caused by the record
built by Berger because of his hostility to the Office Guild, we find
that the respondent in discharging Jaeger discriminated in regard to
Jaeger's hire and tenure of employment, discouraged membership in
the Office Guild, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
D. The discharge of Leonard H. Goldsmith"
Leonard H. Goldsmith was first employed by the respondent on
January 2, 1934, to solicit advertisements by telephone on a commis-
sion basis. On March 10, 1934, Goldsmith was appointed a solicitor
in the classified advertising division of the advertising department
at a salary of $15 a week. On January 3, 1935, he was transferred to
the display classified division and assigned to the classification of
restaurant advertising. On May 22, 1935, Goldsmith was assigned
to the classification of boats and accessories. Thereafter, and until
August 1937, Goldsmith served continuously on the latter classifica-
tion with the exception of 13 days in September 1935. After August
6, 1935, Goldsmith also solicited advertisements for the seeds and
nurseries classification. From time to time Goldsmith also worked
on other classifications when needed.
Goldsmith received several raises in salary. The last of these was
given on March 15, 1937, and brought his weekly wage to $32.50.
We have already described the initial steps in the organization of
the Office Guild taken by Goldsmith and Jaeger. Among the em-
ployees to whom Goldsmith first spoke of organizing a union for office
workers was Irving Taubkin, copy chief in the respondent's promotion
office. Ta.ubkin told Ivan Veit, the respondent's promotion manager,
that an "office guild of some kind" was being organized in the adver-
tising department and. that Goldsmith, Collins, and Jaeger were
particularly interested in the movement. Veit passed this informa-
tion on to Berger.
Soon afterwards-before the end of April 1937 and possibly as
early as April 16-Berger called Goldsmith into the conference room.
Goldsmith testified that Berger said: "I hear some talk around about
organization, and that you are involved in it. I think you are making
a very bad mistake." Goldsmith also testified that he denied "having
any part in the activity," and that Berger 'then said that Goldsmith
was making a very bad mistake; that having a union would be a very
THE NEW YORK TIMES COMPANY 1143
bad mistake; that the idea of a union for advertising solicitors was
ridiculous; that solicitors were artists and their work could be measured
only by their production and not by the number of hours they worked ;
and that "you just can't walk off in the middle of a solicitation because
the five o'clock bell rings and tell the man `I will be back tomorrow
morning when my union hours start again.' " Goldsmith also quoted
Berger as saying further:
It just won't work out for solicitors; in addition unions are just
for people who are mediocre or who are incompetent, and need
the weight of all these people to pull them along; they can't pull
their own weight. You have a good future here on the Times,
you have got a very good record in the past, and you should not
get involved in a thing like this. The management certainly
won't like activities like this, and I like you, and I am speaking
to you as a father, or a friend, and I want you to, for your own
good, don't jeopardize your future on the Times, don't jeopardize
your career, because you have a career here, by getting involved
in anything like this.
Goldsmith testified that he then said lie "would not" and that Berger
replied: "Well, that is fine. You won't regret it."
Berger contradicted Goldsmith's testimony as recited above and
testified as follows to what was said in their conversation:
Well, I introduced the conversation by telling Goldsmith that
I heard a rumor to the effect that he was one of the organizers of
the Guild, and I wanted to talk to him about it man to man,
informally, and off the record.
I told him I believed that, I was not instructed officially, and
that officially I had nothing to say, that I had had no instructions
from anybody, from none of my superiors, and that so far as I
knew, the New York Times was not interested, pro or con.
I believe I went on to say that what anybody did outside of
office hours was no concern of mine, either, officially or personally,
but what they did during office hours concerned me very much.
I expressed the hope that nothing was being done to indicate
that office time was being used for other than office purposes.
I pointed out to Goldsmith the need. for not using business
time for outside activities.
Then I went on to say that if he wanted my opinion as a friend
rather than as department head, if he wanted my, personal opinion
rather than official ones, I would be glad. to give it to him, but
if he did not want to talk to me about it, I would think none the
less of him.
Then, I believe Mr. Goldsmith spoke up, and said that he would
be very glad to talk to me. He understood perfectly the basis.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I believe I asked him if he was sure he understood that this was
a chat between friend to friend, and not official business . He did.
He went on to say that , to the best of my recollection, he was
not an organizer of the Guild ; that he was merely interested in
, possibly joining it , and what did I think.
Well, my own opinion was not very definitely crystallized, and
I discussed rather the functions and problems of a salesman.
I pointed out the difference between salesmen of commodities,
and a salesman of advertising , selling such an intangible as adver-
tising space , and in that sense, I pointed out to him that to a very
large extent , an advertising salesman's work is creative effort.
I pointed out that in the last analysis , the value of a salesman
to a sales manager depended upon his ability to sell , and that in
turn depended upon certain factors or qualities such as native
intelligence , and sales knowledge , initiative , perseverance, and so
forth.
There did not seem to be very much else to say. I reminded
him there that I wanted him not to construe anything I said as
an urge to either action or inaction , and that our relations would
be affected only by his accomplishments.
Berger testified that his talk with Goldsmith was occasioned by.the
facts that he had found that Goldsmith " organized himself fairly
badly" and that he "wanted an opportunity [to] tell Mr. Goldsmith
that since he was careless of detail, since he was having a hard time
keeping up with the routine of his work, that he had better pay
attention to business during business hours."
Berger also testified to a conversation he had at about the same time
with Collins on the subject of unions ; the account he gave of this con-
versation was substantially the same as his account of his talk to
Goldsmith. Collins did not testify . Berger testified that he spoke
to Collins because the latter was "a slow, methodical but faithful kind
of worker" and "I thought that it would be a good thing to suggest
to Mr. Collins that during business hours he. had better stick to
business."
. As will subsequently appear, Berger at a later time spoke to Jane
Schwartz about the Office Guild . He testified , in substance , that this
conversation was inspired by curiosity.
A resolution of the conflict between the testimony of Goldsmith
and that of Berger is particularly difficult because , in our opinion,
the credibility of each was seriously impaired at the hearing. The
record discloses that certain portions of Goldsmith 's testimony are
inaccurate and unreliable and that at times he was guilty of exagger-
ation. On the other hand , Berger's testimony concerning his con-
versations with Goldsmith and Collins and his motivations impresses
us, as does much of his testimony generally, as being disingenuous.
THE NEW YORK TIMES COMPANY 1145
We note also the superfluity of protestations appearing in his version
of the conversations, the feebleness of the excuse offered for his speak-
ing to Schwartz, and. the fact that his claimed remarks went far beyond
his asserted purposes., We take into consideration, as well, an explan-
ation given by Berger to Lane. In June 1937 Goldsmith mentioned
to Lane that he had discussed his union activities with Berger. Lane
then sent for Berger and asked him what he had said. Berger replied
that Goldsmith "came to me for advice and I advised him as a friend
that there wasn't any particular point in an advertising salesman
joining a labor union." Berger, therefore, did not explain to Lane his
alleged motive for speaking to Goldsmith; nor did he adviseLane that
he had told Goldsmith not to use business time for outside activities.
While thus omitting to inform his superior of his supposed reasons for
the conversation and of its supposedly most important element,
Berger also managed to insinuate falsely that Goldsmith had initiated
the conversation. Finally, we take into consideration the fact that
certain testimony of Jane Schwartz, subsequently discussed, describes
statements allegedly made to her by Berger of the same nature as
those allegedly made by him to Goldsmith. This testimony was also
contradicted by Berger, but Schwartz was, in our opinion, a highly
reliable witness.
On the whole, we credit Goldsmith's version of the conversation
with Berger. We find that the respondent, by the action of its super-
visor, Berger, in discouraging Goldsmith and Collins from engaging
in union activity, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On or about May 1, 1937, Goldsmith presided at the Lincoln Hotel
meeting of the Office Guild and was there elected president of that
organization. A report of the election was carried the next day in
two New York newspapers.
Goldsmith testified that a day or two later Berger again called him
into the conference room. The substance of Goldsmith's testimony
as to the conversation which then allegedly occurred is as follows:
Berger taxed Goldsmith with having violated his' "promise" by
becoming president of the Office Guild. Berger also said, "This
certainly is a reflection on me, that all this activity should start . . .
in my department." Goldsmith replied that he had not made a
definite promise and that Berger had no right to speak to him about
his union activity. Berger said that he was not speaking to Gold-
smith as "a boss" and that Goldsmith had spoiled his chances for a
brilliant career. Berger also criticized Goldsmith for associating
with Jaeger ("a trouble maker") and Jane Schwartz ("a nice girl,
but she is a youngster; she is married; she does not need her job"),
and again delivered a lecture on the subject of unions not being suitable
for advertising solicitors. Goldsmith protested once more, and Berger
1146 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
replied that he was speaking "purely on a personal basis." Berger
pointed to his efforts on Goldsmith's behalf. Goldsmith said that
Berger's good intentions were not enough and that a union was "the
answer." Berger said, "Well, when you are young you are radical.
Being radical is fine if you can afford it." Goldsmith denied being a
radical, and the conversation ended.
Berger contradicted Goldsmith's testimony in full and testified
that the second time be spoke to Goldsmith about the Office Guild
was on May 17,1937, at which time he merely asked Goldsmith if the
latter was responsible for putting a union notice on the office bulletin
board.
We find that a conversation occurred between Goldsmith and
Berger as testified to by Goldsmith, and that by the statements made
therein by its supervisor, Berger, the. respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On August 1, 1937, Max Falk displaced Berger as manager of the
display classified division. One of Falk's first actions was to survey
the personnel files of each of the employees in that division. When
he came to Goldsmith's file, he noticed a number of critical memoranda
and the presence of low ratings. Falk spoke to several of the senior
salesmen about Goldsmith, and they commented adversely on Gold-
smith's work. Falk then asked one of these senior salesmen, Walter
J. Skelly, to prepare a report giving the basis for his opinion of
Goldsmith. Skelly, who was on bad personal terms with Goldsmith,
submitted such a report to Falk on August 18, 1937. In our opinion
the evidence shows that this report was biased and unfair in its
substance and in its omission of factors favorable to Goldsmith. The
manner of its preparation was also unfair, since Skelly gave Goldsmith
no opportunity to explain some of the matters referred to in the
report and accepted statements made by other salesmen without
giving Goldsmith an opportunity to defend himself. After receiving
the report, Falk, without confronting Goldsmith with the report and
with no more than a negligible further investigation, recommended
that Goldsmith be discharged. On August 31, 1937, the respondent
discharged Goldsmith on the basis of Falk's recommendation.
The respondent contends that it discharged Goldsmith on account
of numerous violations of its rules and various other delinquencies.
The Guild contends that the respondent built a false record of criti-
cisms against Goldsmith in order to conceal the fact that the motive
for his discharge arose from his union activities. The record contains
voluminous and frequently contradictory evidence of the faults
charged against Goldsmith and of the degree of concern with which
the respondent regarded such faults. The alleged delinquencies
related chiefly to customers' disputes of advertisements reported by
THE NEW YORK TIMES COMPANY 1147
Goldsmith, allegedly improper selling methods employed by him,
his use of business time for outside purposes, his method of reporting
on the status of advertising he had solicited, and his alleged non-
observance of office routine. The record also contains evidence
designed, on the one hand, to show a claimed purity of the respondent's
intentions toward Goldsmith and, on the' other, to demonstrate a
claimed hypocrisy. The evidence is inconclusive on both scores.
The record also establishes beyond reasonable dispute that Goldsmith
made a highly successful record of production.
No useful purpose would be served by recapitulating in detail this
evidence. We are, on the whole, of the opinion that the truth lies
between the blamelessness claimed by Goldsmith and the extreme
misconduct alleged by the respondent. Goldsmith was undoubtedly
careless, inattentive to routine requirements, and involved in a large
number of disputed advertisements. At the same time, we believe
that Berger, at least, did not demand, or obtain, of the salesman a
high standard of compliance with formalities, particularly in the case
of men with good records of production. Furthermore, the impor-
tance of many of the complaints is negatived by the fact that they were
based on occurrences which antedated increases in Goldsmith's pay.
We believe, also, that Goldsmith was treated unfairly both in the
circumstances of his discharge and as respects some of the reprimands
to which he was subjected. This unfair treatment, together with
Berger's anti-union conduct and Goldsmith's union prominence,
raises a definite suspicion that Goldsmith was discharged because
of his union activity.
On the other hand, Goldsmith's discharge was instigated not by
Berger but by Falk, concerning whom there is no evidence to indicate
hostility toward the self-organization of the respondent's employees.
Many of the complaints made against Goldsmith were, also, fully
justified. The unfairness shown toward Goldsmith arose chiefly from
Falk's uncritical acceptance of Skelly's misleading and biased report.
The evidence does not support a, finding that Skelly was actuated by
hostility toward Goldsmith's union activities or that he was instructed
to weight his report so as to aid the respondent to discourage the
organization of its employees. Falk's attitude in recommending
Goldsmith's discharge on the basis of Skelly's report is explained by
the following observations made in the Trial Examiner's Intermediate
Report, which we adopt:
. . . the undersigned observed Falk on the stand for some time.
He was a man who apparently engaged in no unnecessary words
or action. Although his procedure in procuring the dismissal
of Goldsmith without giving the latter a chance to defend himself
appears heartless and therefore suspicious, nevertheless, the record
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicates that the information coming to Falk in August 1937
was such that it might have moved him to seek an immediate
dismissal without believing an investigation of Goldsmith's
contentions was necessary . From his observation of the witness
and his examination of the record , the undersigned believes that
this is what happened ; that the one-sided nature of the investiga-
tion was not caused by a desire to end union activities but rather
by a desire to dispose of an employee whose record of productive-
ness was marred by repeated complaints..
.We find, as did the Trial Examiner, that the entire record does not
support a conclusion that Goldsmith 's discharge was discriminatory.
We shall, therefore , dismiss the allegations of the complaint to
that effect.
E. The transfer of Isaac Gilbert
Isaac Gilbert was first employed by the respondent on August 24'
1927, as an auditing clerk of telegrams , cables, and radio messages
sent by the respondent to and from its New York offices. In this
capacity Gilbert would each day receive copies of the messages of the
preceding day in order that he might determine whether the tolls
charged were proper and fix the price which the respondent should
pay. In the course of his duties Gilbert had access to information
considered confidential by the respondent . . His job required considera-
ble geographical knowledge , detailed familiarity with cable and wireless
rates and routes, and some acquaintance with foreign exchange.
Gilbert had ample opportunity to exercise intelligence and ingenuity,
and the record discloses that he applied both characteristics to his
duties. By suggesting new channels for messages and. by other meth-
ods, Gilbert was able to effect for the respondent savings of consider-
able magnitude. While on the cable desk Gilbert had one assistant
and sometimes two assistants.
Gilbert's initial salary was $30 a week, but by the end of 1929 he
was earning $39 as a result of successive increases of $3 each. In
May 1932 Gilbert 's salary was reduced by a general 10-per cent wage
cut and thus continued at $35.10 per week until September 1932.
At that time he resigned and, moved to London, England. There he
received temporary employment in the respondent ' s London office.
Subsequently, Gilbert returned to New York and in December 1932
was reinstated to his former position . In January 1937 Gilbert's
salary was raised to $40 per week , a level at which it has since
remained.
Gilbert's activities in connection with the B. S. A. U. and his
questioning in January 1936 by Finch , his superior , have already been
described . In the spring of 1937 Gilbert was active in the Office Guild,
then in the process of formation , and became deputy controller of its
THE NEW YORK TIMES COMPANY 1149
New York Times Unit. Subsequently, Gilbert became a prominent
member of the Guild. In July 1937 he was nominated for the position
of alternate delegate from The New York Times Unit of the.Guild to
the Guild's Representative Assembly, and about September 1937 he
was elected first vice chairman of that unit. Gilbert's occupancy of
the latter position was publicized through the Guild's news letter and
was known to Weinstock, his superior.
At the beginning of December 1937, Licater, then a supervisor in
the auditing department, said to William Steinle, an employee in that
department: "I have a question to ask of you. You may answer or
not, as you wish." Steinle'said he would decide after he heard the
question. Licater then said, "Did Mr. Gilbert just finish talking to
you about Guild activities?" Steinle replied in the negative, where-
upon Licater said: "We do not like Guild activities around here. Are
you it member of the Guild?" Steinle answered that he was going to
join the Guild.
We find that by these coercive statements and questions on the
part of Licater, a supervisory employee, the respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
In February 1938, Weinstock, Finch, and Licater held a conference
in which they discussed transferring Gilbert to another position.
On direct examination Weinstock's explanation of what occasioned
the conference was as follows:
In view of the various outbreaks of confidential or intimate
information that were occurring 'at that time, I wished to safe-
guard the confidential information which Mr. Gilbert would have
in his position, knowing, or having in mind, rather, my suspicion
of his Communistic activities, and I wished to take such action
as would lock the stable door before the horse was stolen.
According to the testimony of Weinstock and Finch, Weinstock
spoke at the conference essentially along the lines of his quoted
testimony, and Licater added that it was desirable, also, to train
another employee in Gilbert's work because no one else in the depart-
ment was thoroughly familiar with the duties involved. The con-
ferees decided to transfer Gilbert to another position and, on Licater's
recommendation, to put Ress in his post. Ress was not a member of
the Guild. Weinstock instructed Licater to find a position for Gilbert
commensurate with his position and salary.' They decided, also, to
tell Gilbert that the transfer was being made because they were
desirous of securing a "new viewpoint" in the position and of training
another man in the work. Weinstock testified that "we did not wish
to tell Mr. Gilbert about the question of Communism as we did not
want to open that issue again in the auditing department." A
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suggestion by Licater that Ress should write a manual of the duties
of the position was also adopted.
At some time after the conference, but in the same month, Licater
told Gilbert that "we" wanted a new man on his job, and that Gilbert
would break in Ress and himself be transferred to the invoice auditing
section. Licater added that Gilbert "need not be afraid" for his job.
Gilbert then asked Finch why he was being transferred. Finch
explained that it was desired to acquaint someone else with the
position in case something happened to Gilbert and also to have his
successor write a manual of the duties involved. Gilbert expressed
surprise at an apprehension suddenly arising after his 10-year service,
and asked why his place was not being taken by his assistant, Michael
J. Lawrence. Finch replied that Lawrence was not capable of han-
dling the job.
Ress was thereafter placed on the cable desk, received training from
Gilbert and Lawrence, and wrote a manual of the position's duties.
On April' 18, 1938, Gilbert assumed his new position in the invoice
auditing section, and has since continued at the same work. His
duties now consist of auditing invoices of the respondent's purchases
of supplies other than paper. Gilbert checks the computations of
the invoices, assembles the supporting papers, and passes them on
to another department. He also attaches to the invoices little slips
of paper used in connection with the business machines. Gilbert's
duties do not give him access to confidential information. His work
is not related to and makes no use of the knowledge and experience
acquired in his previous position, except that on occasion he makes
minor calculations involving foreign exchange. Although the sums
involved in Gilbert's present duties are greater in the aggregate
than those he dealt with on the cable desk, his present opportunities
for effecting savings are stereotyped and negligible as compared to
his previous opportunities. Mann is the head of the three-man
invoice auditing section. Jesse Spitzer, who used to be Gilbert's
assistant on the cable desk, is at least on a par with Gilbert in the
section and, although not officially. considered Gilbert's superior,
may, perhaps, outrank him. Despite testimony by Weinstock to the
contrary, it appears.from the record that Gilbert's new job is inferior
to his old. It is less difficult and stimulating, affords less chance for
Gilbert to demonstrate his worth, requires less knowledge is more
routinized, and does not. involve supervision of an assistant. Wein-
stock also testified that Gilbert had reached the "top rung of the
ladder" on the cable desk, whereas in his new position he would have
improved chances for promotion. Weinstock based his latter con-
clusion on two premises: first, that Gilbert might be advanced to the
supervisor's position in the event of a vacancy; second, that the
training and experience obtained in his new post would fit him for
THE NEW YORK TIMES COMPANY 1151
other positions in the auditing department. The first of these
premises, however, is clearly too speculative to be regarded as a
reasonable offset to the immediate disadvantages incurred by the
transfer. The second premise cannot be seriously considered; the
additional experience acquired by Gilbert is trivial, as appears from
the facts that he easily learned his new duties in a week and that
they are repetitive in character.
The circumstances of Gilbert's transfer as so far explored establish,
in our opinion, a prima facie showing that the respondent's motivation
was union hostility. For some 10 years Gilbert did satisfactory work
in the same position. During this time he acquired and used special-
ized knowledge. He was then transferred to a position which did not
employ this knowledge and which did not require an equal capability.
The decision to make the transfer was arrived at within 6 months of
Gilbert's election to the office of vice chairman of the Guild. Wein-
stock, who ordered the transfer, was hostile to union organization
in his department, as seen in connection with Grace Porter's discharge.
Finch, present, at the conference in which it was decided to transfer
Gilbert, had earlier been used by Weinstock to defeat the B. S. A. U.
Licater, the third person at the conference, entertained animosity to
the Guild and to Gilbert as an active union member, as shown by his
described conversation with Steinle. Weinstock's claim of a sus-
picion of communism and a desire to remove a Communist from a
confidential position follows the pattern of discrimination against
Grace Porter. Finally, the reason given to Gilbert-that the manage-
ment had become apprehensive of a sudden loss of his services-was
so palpably inadequate that it could well serve a purpose of making
Gilbert and other employees believe that the true and unstated reason
was his union activity.30 An explanation is, therefore, called for, and
we turn now to a consideration of that offered by the respondent.
We have already seen that Weinstock testified that his suspicion
that Gilbert was engaged in communistic activities, together with a
series of disclosures of confidential information, led to Gilbert's
transfer. Weinstock's alleged desire to "lock the stable door before
the horse was stolen" seems, however, to be belated, and is conse-
quently unconvincing, since it was supposedly based on information
acquired two years before its conception. Nor were the "outbreaks"
of disclosures such as reasonably to stimulate fears which had so long
been quiescent. Weinstock identified the disclosures at the hearing.
Of these, the first was an article which appeared in the December 1937
issue of Better Times, a newspaper "published by the Communist
Party Units of The New York Times." This article described the
institution of an alleged "speedup" system and "sweatshop condi-
30 Indeed , Ross, G ilbert's successor , came to just this conclusion . The evidence is uncontradicted that
Ress told his assistant , Lawrence, that the nature of his work as Gilbert 's successor was so complicated and
required so much experience that he could see no reason for Gilbert ' s transfer except union activity.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions" in the auditing department. Its writing obviously required
only such familiarity with that department as any of its employees
would normally have. Although of a character to arouse resentment
in Weinstock, the article cannot, in all reasonableness, be regarded as
disclosing "confidential" information.
The second disclosure appeared in a squib in the same issue of Better
Times as follows:
Night managing editor McCaw complained to Mr. James that
the office boys were not paid for their extra work election night.
Said Mr. McCaw's note: "It's things like this that make them
join the Guild." Truer words have never been spoken.
The third disclosure was of a "Confidential Memo to Advertising
Staff" from Don Bridge, a facsimile of which appeared in the Decem-
ber 6, 1937., issue of The Guild Reporter, a' publication of the Guild.
In short, the first "disclosure" was nothing of the kind. The
second was of the contents of a note which passed between two edi-
torial executives and was out of the range of an employee in the auditing
department. The third was of a communication which reached a
number of persons in the advertising department, had no connection
with the auditing staff, and was published not in a Communist Party
organ, but in a union newspaper. Weinstock admitted that "there
was no evidence of anything that would reflect on Mr. Gilbert's work."
The case for Gilbert's integrity, however, goes beyond this negative;
the only items which were actually disclosures indicate affirmatively
by their nature that the breaches of confidence involved were almost
surely perpetrated by persons in departments other than the auditing
department. If, in the face of this fact, Weinstock was inspired by
the disclosures to transfer Gilbert, then he exhibited a degree of
caution and suspiciousness wholly incompatible with his failure to
remove Gilbert from confidential work in January 1936, with his
delay until February 1938 to decide on Gilbert's transfer although
the disclosures had appeared in December 1937, and with the sub-
sequent delay from February to April 18, 1938, at which time Gilbert's
transfer was effectuated.
Weinstock's testimony and the respondent's defense are further
discredited by other factors. On July 23, 1938, during the prelim-
inary investigation of the charges filed by the Guild regarding Gilbert,
the Board's Regional Director requested the respondent to supply
.its "answer on the charge with respect to I. Gilbert." On or about
July 25, 1938, Adler conferred with Weinstock about the charge of
the Guild and the reasons for Gi]bert's transfer. Weinstock testified
that he gave to Adler the same reasons for the transfer that had been
given to Gilbert.
On July 26 Finch, acting at the request of Weinstock, addressed to
THE NEW YORK TIMES COMPANY 1153 '
him a memorandum giving reasons for Gilbert's transfer. Finch
wrote:
In the reorganization of our department, it was discovered
that the nature of duties performed by him [Gilbert] were very
involved, and that no other member of the staff had sufficient
knowledge of the work to carry on for an extended period in the
event of his illness or absence. It was finally decided that
another person should be assigned and thoroughly trained in
his work, and also obliged to write a complete manual of the
duties. By this method we could determine whether all the
work was essential, or if certain details could be eliminated. His
transfer is only one of numerous changes that have been effected
in the reorganization of the Auditing Department.
The next day, Weinstock in turn reported to the publisher, Sulz-
berger, and gave him a memorandum explaining Gilbert's transfer
as follows:
The transfer of Isaac Gilbert from the position of cable clerk
to the position of invoice clerk resulted from the installation of
mechanical bookkeeping machinery and the consequent reorgan-
ization of the department. Forty-two transfers of positions
were made in the Auditing Department and fourteen persons
were removed from employment from January 1, 1937 to May 1,
1938, and Mr. Gilbert was included among those transferred.
Mr. Gilbert continued [as cable clerk from the time of his re-
employment in December 1932] until the period of office re-
organization in the latter part of 1937 and the early part of 1938,
when it was determined that it would be desirable to have a new
viewpoint- in the cable checking position occupied by Mr.
Gilbert.
On July 28,,1938, Sulzberger answered the inquiry of the Board's
Regional Director regarding Gilbert by a letter stating:
Mr. Gilbert was employed by the auditing department audit-
ing cable charges. As a result of the addition of a number of
bookkeeping machines, which required a substantial reorganiza-
tion of the personnel of this department, in April this year Mr.
Gilbert was transferred.
Since January 1937 there have been 42 transfers in the auditing
department alone-resulting in a net reduction of seven em-
ployees. Mr. Gilbert, whose services were retained, was trans-
ferred in the course of business without reduction in salary,
or loss of employee benefits.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Weinstock testified that the reasons for
Gilbert's transfer were (1) recollection of previous suspicion of Gil-
bert's "communistic activity," and (2). the outbreaks of confidential
information from the Times. Weinstock testified that he did not
recall any other reasons, that lie was directly responsible for the trans-
fer, and that he would have known of other reasons if there had been
any. He further 'testified: "I was transferring Mr. Gilbert in order
to protect the confidential information which Mr. Gilbert's duties
brought him into contact with, and because . . . I had lost con-
fidence in him as a Communist, or as one suspected of being a Com-
munist."
It was thereupon pointed out to Weinstock that according to his
own testimony he had given Adler an entirely different explanation
for the transfer. Weinstock then changed his testimony so as to
say that "there were a number of reasons" for Gilbert's transfer;
that the reason given Gilbert and Adler "was not the basic reason";
and that "the important reason was the question of Communism."
He then summarized his new position by testifying: "There were
incidental reasons, such as putting anew viewpoint in the position,
and breaking a new man in on the job, but I would say the important
reasons were still the reasons of Communism."
The witness was then asked why he had failed to give the respond-
ent's vice president and general manager the "basic reason" for
Gilbert's transfer. He paused. When asked if he understood the
question, he replied:
I understand your question quite perfectly. I am trying to
determine the.answer for it. The reason is, at that time it did
not seem necessary to give the Communistic angle to Colonel
Adler, and I gave him the other reasons.
The witness was then shown Sulzberger's letter to the Board's
Regional Director, dated July 28, 1938, stating that Gilbert's transfer
was "the result of the addition of a number of bookkeeping machines
which required a substantial reorganization" of the departmental
personnel. He testified that although he had rendered Sulzberger a
report on the entire reorganization of the department, nevertheless,
he did "not recall at the moment" what was the source for Sulzberger's
statement that the reason for Gilbert's transfer was the reorganization.
Weinstock was then shown his own memorandum to Sulzberger,
dated July 27, 1938, stating that the transfer "resulted from the
installation of mechanical bookkeeping machinery and from the
consequent reorganization of the department." He was asked if he
had made that statement. The transcript then proceeds:
A. That is correct.
THE NEW YORK TIMES COMPANY 1155
Q. You gave no other affirmative reason for his transfer, did
you?
A. Unless it is stated there.
Q. Well, examine it. .
(Witness examines document.)
The WITNESS. I have indicated here that forty-two transfers
of positions were made in the auditing department at that time
and Mr. Gilbert was included among those transfers.
Q. (By Mr. Levin.) That is the only additional reason which
you gave; is that right, other than the one I have read?
A. There are seven paragraphs in that letter in addition to
that, all on the subject of Gilbert.
The memorandum so prepared and examined by Weinstock makes
the direct statement that Gilbert's transfer was caused by the installa-
tion of mechanical bookkeeping machinery. It also states that his
transfer came at a time "when it was determined that it would be
desirable to have a new viewpoint in the cable checking position."
It does not say anything about the desirability of having a substitute
capable of performing Gilbert's "very involved" duties, or about
communism, or about the release of confidential information.
The following day at the hearing, Weinstock testified further on
redirect examination by the respondent's counsel. This time he stated
that he personally presented his memorandum of July 27, 1938, to
Sulzberger, at which time he indicated "that the transfer of Mr.
Gilbert was made for the reasons stated therein, which were on account
of the reorganization of the auditing department." He testified that
he called Sulzberger's attention to Finch's memorandum, that he told
Sulzberger that Finch's statements gave "the reasons," and that "in
addition to that, I told Mr. Sulzberger that there was one reason
which was not stated in those notes, _and that was our suspicions of
communism in relation to Mr. Gilbert." He testified further that he
explained the omission by telling Sulzberger that "we" had not wished
to "raise any issue" concerning communism in the auditing depart-
ment.
Sulzberger likewise testified that Weinstock gave him the memo-
randum and "told me that in addition to that, there was another
reason which he had not included in the memorandum, and that was
his suspicion that Mr. Gilbert was 'a communist, and that that was
the reason he had moved him." However, Sulzberger, acting pursuant
to advice from his attorneys, determined that the communist sus-
picions should not be mentioned in his letter to the Board's Regional
Director; "that there was ample reason for moving Gilbert in the
normal course of the business, and that in answering the specific
charges, we could certainly show that his membership in the Guild
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had absolutely nothing to do with it." The letter was accordingly
written on July 28, 1938 , as set forth above.
The record thus shows Weinstock 's effort to adjust his testimony.
to the cross-examination , his concealing from Adler of the reason
advanced as the principal basis for the transfer , and his mentioning
of that reason to Sulzberger almost as an afterthought . It also
shows that the respondent 's officials have advanced a number of
reasons for Gilbert's transfer , of which only those relating to com-
munism were originally offered by Weinstock's testimony. The
latter circumstance alone indicates that the alternative reasons were
false; other factors point in the same direction . The purported
wish to have another employee familiar with Gilbert's duties cannot
be taken seriously ; Gilbert's assistant , Lawrence , was already familiar
with these duties and substituted for Gilbert when the latter was ill
or on vacation . Furthermore , no such desire seems to . have been
previously experienced , and was certainly not acted on, during the
decade in which Gilbert held the same position. The desire to have
a manual of duties written in order to see if certain details could be
eliminated does not explain why Gilbert was not told to write the
manual . 31 Although the auditing department was reorganized to a
large extent because of the installation of business machines, the
cable clerk position and duties were in no way affected thereby. The
desirability of a "new viewpoint " was not elaborated upon at the
hearing and is meaningless . We conclude , therefore , that all of the
explanations advanced by the respondent for Gilbert 's transfer are
baseless and insincere.
For the reasons already stated, which are in no way rebutted by the
equivocal and untrustworthy character of the respondent 's defense,
and on the entire record in the case , we find, as did the Trial Examiner,
that the respondent transferred Isaac Gilbert on April 18, 1938,
because of his membership and activity in the Guild, and that it
thereby interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act . Gilbert
desires reinstatement to his former position.
F. The transfer of Jane Schwartz
Jane Schwartz (also known as Mrs. Willard Bleyer ) began working
for the respondent on September 24, 1935, as an advertising solicitor
in the display classified division of the advertising department.
Schwartz had previously done editorial and exhibition work for a
publication known as Art News and had also handled publicity and
advertising copy for several antique firms and art galleries. She
31 In this connection it should , perhaps, be explained that incumbents of other positions were also instructed
to write manuals of their duties. Hence it is clear that the respondent could not have considered manuals
to be worthwhile only if written by persons comparatively new to the positions surveyed or to be capable of
being written only in the free time of employees in training.
THE NEW YORK TIMES COMPANY 1157
had additional connections in the art field arising from the circum-
stance that her father was an art dealer. Schwartz was assigned by
the respondent to the arts and decorations classification , her duties
consisting of soliciting advertising from art galleries , antique shops,
advertising agencies , and similar sources of advertisements of arts
and antiques . Schwartz soon handled practically all the accounts of
this nature.
Schwartz was originally employed on a probationary status at $20
a week. After about 3 months , the period of probation was con-
sidered ended , and her salary was increased to $25. On July 27,
1937, she received an additional increase to $28, and thereafter con-
tinued to receive that salary- so long as she was employed by the
respondent.
Statistics of record show that Schwartz was highly successful as an
advertising solicitor and that the advertising linage in her classifica-
tion increased greatly as compared to both the linage previously
carried by the respondent and that carried by other newspapers of
New York City . At the hearing counsel for the respondent conceded,
and we find, that Schwartz had done "excellent work in the arts and
antiques department."
As has already been seen , Schwartz was active in the formation of
the Office Guild; she, Jaeger, and Goldsmith were the real leaders of
the organization. Goldsmith approached her on April 15, 1937, with
reference to organizing the respondent 's office workers , and she in
turn spoke to employees Land and Donnet about organizing. She
attended the first organizational meeting held at Climenko ' s home on
April 16, 1937 , and subsequent meetings of the same character.
Schwartz was elected secretary of the Office Guild on or about May
1, 1937. She was also on the organizational committee of the Office
Guild and on a special committee of that organization formed to
investigate a situation involving the New York Post . The first issue
of the News Letter, published on June 11, 1937, by The New York
Times Unit of the Office Guild, featured a signed article by Schwartz
in which she urged all newspaper workers to join the Office Guild.
This was circulated throughout the respondent 's offices.
Schwartz also served on a committee to arrange for the election of
officers for The New York Times Unit of the Guild. On August 31,
1937, she was elected secretary of this unit , and in October 1937 she
became third vice president of the Guild itself. She was, variously,
a delegate and an alternate delegate to the Representative Assembly
of the Guild , and later became vice chairman of the Unit , instead of
secretary . Schwartz 's union activities were generally known to the
respondent ' s officials.
About the second week in May 1937 , Berger, manager of the display
classified section, called Schwartz to his desk . Berger reminded her
323429-42-74
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about a request for a salary raise she had made about 6 weeks before
and said, "It has come to the attention of the management that you
are interested and involved in these recent union activities." Schwartz
remarked that she could not see how her competence as an advertising
solicitor could possibly be affected by her union activities. Berger
disclaimed the existence of any connection between the two matters.
Schwartz then pressed him as to the reasons for his having referred
to her union activities on the heels of mentioning her request for a raise.
Berger avoided a direct answer. Instead, he said that he was speak-
ing to Schwartz as a friend and that he' thought her career would be
jeopardized it she became "interested and active in union activities."
The remainder of the conversation continued as follows:
He [Berger] tried to prove to me [Schwartz] that union activities
on the part of advertising solicitors just would not go on the
New York Times. He said that there was plenty of dead wood
in the way of solicitors, who were not bringing in business on the
advertising staff, and that if there was a contractual agreement
between the Guild or any other union, with the New York Times,
the New York Times would have to get rid of these solicitors,
because of the increase in wages.
He also said that if there were any contractural agreement, if
you were to come in late in the morning or if you would go out
to your locker room for a smoke, you would consequently have
to be docked.
He said that advertising solicitors were creative artists; and
their work could not be measured in terms of pay and hours,
and he couldn't see how any union could possibly help the ad-
vertising solicitors of the New York Times.
I said to him that he didn't have any right to speak to me in
that fashion, because what he was doing was a violation of the
Wagner Act', because he had no right to speak to me, in the first
place, about union activities, and, secondly, he should not have
tried to dissuade me from joining the Guild, and being active in
the Guild.
I asked him if he knew anything about the Wagner Act and
he replied that he didn't.32
We find that the respondent, by the above statements of its super-
visory official, Berger, interfered with, restrained, and coerced its
32 Our findings as to the conversation described are based on the detailed and convincing testimony of
Schwartz. Berger contradicted Schwartz's version, testifying that he told her he was personally curious
about her interest in the Office Guild; that she should answer him only if she pleased ; and that the manage-
ment had "expressed no interest and given no instructions." He testified that she explained that she
was interested in the principles of unionism , and that he then closed the discussion with some non-
committal remark. For the reasons expressed in our discussion of Goldsmith's discharge, we do not
credit Berger 's testimony in this respect.
THE NEW YORK TIMES COMPANY 1159
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
On July 30, 1937, Berger, who had already been informed that he
would be succeeded as head of the display classified department, by
Max Falk, placed in Schwartz's personnel file a memorandum sum-
marizing his opinion of her. The memorandum praised Schwartz's
ability, production, and sales efforts, and spoke well of her attention
to business and of her knowledge of her classification. It also stated:
Within the last six months, [Schwartz] has seemed perhaps less
cooperative but has nevertheless taken care of her assignments
in adequate fashion. Has also developed a tendency toward
lateness and must be brought up sharply before it becomes a bad
habit.
Falk became manager of the display classified department on August
1, 1937. In September, October, and early November, he repeatedly
and severely criticized Schwartz for lateness. Falk also complained
of Schwartz's latenesses to Bridge, who in turn complained to Adler.
At some later time, apparently in 1938, Sulzberger was informed,
probably by Adler, that Schwartz had a bad late record. Although
other employees in the classified display division had late records
almost as bad as that of Schwartz for 1937 and worse for 1938, no
complaints as to such employees were made to Adler or Sulzberger.
In May 1938, Howard Stewart, manager of the respondent's retail
advertising division, had a conversation with Falk. Stewart and Falk
both testified that the former suggested that Falk assume responsi-
bility for the classification of building supplies and contractors, then
in the retail division, on the grounds that it was closely related to the
real estate classification, handled in Falk's division. They further
testified that Falk in turn suggested that the arts and decorations
classification should be taken over by Stewart because it was allied
to the furniture classification, handled in the retail division. The
two men agreed to seek Bridge's approval of an exchange of the classi-
fications and made a recommendation to Bridge accordingly. Bridge
took the matter up with Adler, who recalled, because of Schwartz's
prominence in the Guild, that she was the employee who handled the
arts and decorations classification. Adler told Bridge that he had
no objection to the transfer, provided it in no way affected Schwartz's
employment.
On May 18, 1938, Bridge addressed a memorandum to Falk and
Stewart, notifying them that the exchange of classifications would
become immediately effective. The memorandum also stated:
This exchange of classifications appears to be for the best
interests of the Times. The Arts & Antiques classification is
essentially Retail store advertising so logically should be handled
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the' department responsible for other Retail store advertising.
Conversely,. the advertising of Retail Building Supplies and
Contractors is more nearly allied with the Real Estate classifica-
tion than it is with Retail stores.
Also on May 18, Falk asked Stewart if he would take Schwartz
with the classification . Stewart refused on the grounds that lie was
already overstaffed . Falk and Bridge then canvassed the classifica-
tions available for Schwartz and decided to assign her the apartment
directory. Both Falk and Bridge testified, in effect, that they
decided on this classification because they considered it suitable for
a woman.
Falk told Schwartz of the exchange of classifications , whereupon
she expressed a desire to be transferred to the retail division with the
arts and decorations ' classification . Falk explained that Stewart did
not want additional help. Schwartz then saw Stewart, who said there
was no chance for her to be transferred; that the matter had not been
provided for or even discussed; and that he already had two more
persons on his staff than were needed.
During the summer months Schwartz had been accustomed to
solicit school advertising because of inactivity in arts and antiques.
After Schwartz learned of the proposed change in her work, she asked
Miss Gow , in charge of school advertising , for permission to solicit
for. that classification . Gow expressed a desire to use Schwartz
because of a shortage in staff caused by vacations and because of
Schwartz's previous success in the school field. Gow then said she
would speak to Falk about the possibility of keeping Schwartz on
arts and antiques and, failing success on those lines , would ask him
if she might have Schwartz. Gow did speak to Falk, but he refused
her requests. .
On May 19, 1938 , Schwartz protested the change in her duties to
Falk and Bridge. They explained that they considered the exchange
of classifications a logical step and - one to the best interests of the
respondent. Schwartz agreed, but argued that she should be trans-'
ferred with the arts and antiques , classification as a sensible business
procedure.
On May 20, 1938 , Schwartz sent a memorandum to Falk and
Bridge arguing against her separation from the arts and antiques
classification and her transfer to the apartment directory , which she
described as being "known to the staff as the `graveyard of good
solicitors .' " Schwartz alleged that the transfer of accounts could
have easily been accompanied by a transfer of personnel , and stated
that she could ascribe the move only to discrimination on account of
union activities. She further charged that she was being placed on
the apartment directory at the time of "the Summer lull in apartment
renting."
THE NEW YORK TIMES COMPANY 1161
Bridge took Schwartz's memorandum to Adler, who advised him
to put his reply in writing and to send for Schwartz and give her an
explanation in the presence of a witness. Accordingly, on May 21
Bridge sent for Schwartz and Falk and read a point-by-point reply.
In effect Bridge said that the transfer of classifications was justified
and logical; that Schwartz's efficiency was not the primary consider-
ation, although the linage trend in her classification was unfavorable;
that the apartment directory was a good classification, which was then
being handled by senior real estate salesmen; that it would complicate
the plans of two division managers to transfer personnel with the
classifications; that the retail department was already adequately
staffed; that Schwartz's union activities had no bearing on the transfer;
and that the best weeks for the apartment directory ware immediately
ahead, whereas in the same period arts and antiques would be
relatively less active.
Thereafter Schwartz solicited advertising for the apartment di-
rectory until early in October 1938, when, because of a seasonal lull
in that category, she was put to soliciting accounts from real estate
brokers for a "Stores for Rent" column. Because of the necessity of
breaking into a new field in which she did not have preestablished
acquaintances and of calling on strange accounts, Schwartz found her
new duties less pleasant and more taxing than her old duties. Never-
theless, Schwartz did satisfactory work on the apartment directory
and as a result received commendations from her superiors.
The apartment directory itself was a smaller classification in linage
than arts and decoration. On the other hand, the directory showed a
substantial gain in linage for 1938 as compared to 1937, whereas arts
and antiques showed a loss for 1938, the downward trend having begun
before the exchange of classifications. The exchange was made, also,
just prior to the seasonal decline in arts and antiques linage, and at a
time when the apartment directory was beginning a seasonal climb.
About June 20, 1938, Schwartz had a dispute with Falk concerning
the source of leads she was using for the apartment directory. The
difference was adjusted when Falk, at Bridge's suggestion, instructed
two other solicitors to turn over some of their accounts to Schwartz.
At some later time Bridge. inquired of Falk as to Schwartz's progress.
Falk said that Schwartz was doing "all right," and "showing quite
definite interest."
During the period when Schwartz was soliciting advertising for the
apartment directory, Sulzberger asked Lane about her work on the
new classification. Lane replied that she was doing fairly well.
Sulzberger then said:
Mr. Lane, she has to make good. We are not going to have a case.
If necessary, give her the accounts that will make it positive that
she makes good.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In November 1938 Schwartz was offered a position by an advertising
agency to solicit accounts for it at a weekly salary of $25, with a bonus
arrangement contingent on her securing a certain amount of monthly
business. Schwartz untruthfully told Falk that she had an offer of a
position which would pay a salary $10 higher than that she drew from
the respondent ($28). Schwartz also told Falk that she would stay in
the respondent's employ if the respondent met the offer, as reported
by her. Schwartz testified that she did not expect the respondent to
raise her salary and that her statement was inspired by a desire to
avoid giving the respondent "the satisfaction of knowing that they
had driven me out from their treatment of me." Falk took the matter
up with Bridge, who in turn reported to Adler. It was decided that the
respondent would not meet the supposed offer, and Falk so informed
Schwartz. Schwartz then resigned from the employment of the re-
spondent, effective December 2, 1938, and accepted the post with the
advertising agency. Schwartz testified that she resigned "volun-
tarily under pressure" and that she would not have resigned if she had
been permitted ,to remain on the arts and antiques classification. In
her position with the advertising agency Schwartz devoted the ma-
jority of her time to soliciting arts and antique accounts.
The circumstances of Schwartz's separation from the arts and
decoration classification lend considerable support to the Trial
Examiner's finding that the separation was caused by Schwartz's
union activities . Schwartz was exceedingly active in both the Office
Guild and the Guild. Berger, when manager of the classified display
department, attempted by intimidation to influence her away from
union membership and activity . The respondent 's explanation of the
transfer of the classification from Schwartz is one based on a kind of
academic logic, summarized in the quoted portion of Bridge's mem-
orandum of May 18, 1938 , rather than on more obvious and compelling
business reasons. The arts and decoration classification had originally
been in the retail division and had been transferred therefrom to the
classified display division in about 1933. Hence it appears that there
was no absolute jurisdictional appropriateness to dictate another shift.
A transfer of the account without a corresponding transfer of Schwartz
disregarded Schwartz 's unusual knowledge of and connections in. the
arts and antiques field, the experience she had acquired, and her good,
record of production. Stewart testified that the retail division gave
advertisers more "servicing" (such as the preparation of advertising
copy) than did the display classified division and stated: "We have
found definitely that the arts and antiques classification is not a
matter of advertising selling. We have found it is a matter of servic-
ing." Bridge testified, however, that he believed that differences in
amount of "servicing" would depend on the needs of the particular
advertiser and not on the division handling the account, and Stewart's
THE NEW YORK TIMES COMPANY 1163
theory that "servicing" is an essential in the arts field is inconsistent
with his own testimony that "a child 12 years old." -could write the
necessary copy. The lack of business reason for the transfer is also
emphasized by the subsequent history of the arts and decoration
classification. After the transfer, the classification was handled by
two junior salesmen, one of whom subsequently left, under the super-
vision of a star senior salesman, who personally took the three principal
accounts. Stewart testified that "we probably spend more on it.than
we take out of it, but• we are giving a very generous service." In
view of the lack of profit, it seems unimportant that, as Stewart
testified, the respondent has obtained a larger percentage of the adver-
tising in the field.33 Nor can we accept the emphasis placed by counsel
for the respondent on the fact that at the time of the transfer the arts
and decoration classification was entering a period of seasonal decline,
whereas the apartment directory was entering a period of incline.
The argument that this circumstance shows a favorable treatment of
Schwartz carries some weight, but its force is largely spent if it be
recalled that Schwartz had been accustomed to solicit school adver-
tising during the summer months.
There are also certain factors which tend to support the Guild's
view that there exists a pattern of discrimination against the employees
named in the complaint and an attempt to "build a record" against
them. It is a fact that of the three employees most instrumental in
forming and promoting the Office Guild, all of whom were in the dis-
play classified division, two were eventually discharged and the third
transferred to other work. It is also a fact that the late record of
Schwartz, a minor employee, was called. to the attention of the respond-
ent's two top executives, Sulzberger and Adler, whereas late records
of other employees in the same division were not so reported, even
though such records were worse over the period of 1937 and 1938 than.
Schwartz's record.
On the other hand, there is no evidence to link Berger's antiunion
bias with Stewart or Falk, who were the moving agents in the exchange
of classifications. Transfers of 'advertising classifications are also
fairly common in the respondent's advertising department, and there
is no fixed practice of making corresponding shifts in personnel, the
evidence indicating that the solicitors sometimes go with the classifi-
cation and sometimes do not. Furthermore, before Schwartz was
assigned to the apartment directory, that classification had been
handled by senior salesmen, although these had not, apparently,
33 Stewart's testimony on this point is not entirely clear. The linage in the classification for 1938 was less
than for 1936 and 1937. We interpret Stewart's testimony as meaning that the respondent carried-an increased
proportion of the total advertising in the category carried by itself and its competitors. We concur in
Stewart ' s view that such an increase affords a more accurate business valuation than uncompared changes in
linage.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
devoted their full time to it. Although Schwartz's separation from
arts and antiques proved to be, to the detriment of that classification
as a source of profit, her subsequent work was to the advantage of the
apartment directory, which broke its previous linage records. The
inconvenience experienced by Schwartz because of the change in her
duties arose, essentially, from the necessity of calling on unfamiliar
accounts, and was, therefore, within the normal routine of a salesman.
The assignment to her by Bridge and Falk of extra accounts contra-
dicts an assumption of a desire on their part to see her fail. In addi-
tion, Adler and Sulzberger both expressed concern for her future to
her more immediate superiors. That Schwartz's latenesses were
reported to Adler and Sulzberger was not inconsistent with what
appears to be the respondent's explanation-that the subordinate
executives hesitated to take direct disciplinary action against Schwartz
on their own initiative because of her-union prominence. Finally,
Schwartz's offer to stay in the respondent's employ if it raised her
salary militates somewhat against the alleged distastefulness of her
new duties.
After weighing the various considerations, we are of the opinion
that on the whole the evidence does not sustain the contention that
Schwartz's work was changed for union reasons. We shall, therefore,
dismiss the allegations of the complaint concerning Schwartz.
G. Coercion of Michael J. Lawrence
In 1937 Michael J. Lawrence was assistant to Isaac Gilbert in the
auditing of cable and telegraphic charges. In May of that year
Lawrence became a member of the Office Guild. On May 28, 1937, he
was elected second vice chairman of The New York Times Unit of the
Office Guild. This fact was reported in the June 11, 1937, issue of the
Office Guild's News Letter, which was freely distributed in the
respondent's auditing department. Weinstock, the respondent's
auditor, saw the News Letter and the item concerning Lawrence's
election to office.
On June 14, 1937, Lawrence began his annual 2 weeks' vacation.
At about the same time, Gertrude Burrell, another employee in the
auditing department, notified the respondent of her intended resigna-
tion. The impending vacancy made necessary some shifts in person-
nel. Finch, head of the editorial auditing division of the auditing
department, spoke to Weinstock on the subject and suggested that
Lawrence be transferred to doing pay-roll work. Weinstock told
Finch that he had seen that Lawrence had been elected to an office in
the Office Guild and said that he would like to talk to Lawrence before
turning over to the latter any confidential pay-roll work. He asked
Finch to call Lawrence in for a conference.
- THE NEW YORK TIMES COMPANY 1165
Lawrence conferred with Weinstock on June 25, 1937, as requested
by Finch. Weinstock told Lawrence that a vacancy was to occur
which he thought Lawrence might fill. Weinstock said that he did not
feel that it would be fair to the respondent to have Lawrence. placed
in the position, which was of a confidential nature, because Lawrence
might be called upon as a union officer to divulge some of the confiden-
tial information involved. Weinstock also said that he did not object
to Lawrence's being a member of the Office Guild and that if Lawrence
remained as active in that organization as theretofore, he might,
nevertheless, in time be advanced to positions other than the position
then in question. Lawrence replied that at a meeting held the night
before the Office Guild had voted to merge with the Guild, and that as
a result his position as an officer no longer existed.34 Weinstock said,
"How do I know that you will no longer be an officer?" Lawrence
replied, "If my name comes up for nomination, I will not accept it." 35
After this conference Weinstock told Finch that he was satisfied to
have Lawrence assume the contemplated new duties. Finch then
left for his vacation. On Finch's return, Lawrence was, in July
1937, transferred to duties involving the handling of pay rolls. On
or about October 1, 1937, Lawrence was transferred back to his old
position on the cable desk with an increase in salary from $25 to $28
a week.
During.the period in which Lawrence was working on pay rolls, he
was nominated for membership on a committee of the Guild, but
withdrew on the plea that he had too much work in the evenings. We
credit Lawrence's testimony that this withdrawal was caused by his
apprehension that Weinstock might, otherwise, have felt that Law-
rence had violated his pledge. In 1938, however, some time after his
transfer back to the cable desk, Lawrence accepted a position as
member of the organizing committee of The New York Times Unit
of the Guild.
In our opinion, Weinstock's conversation with Lawrence was
intended to induce Lawrence to relinquish his union office and activity.
We cannot accept a view that Weinstock's true concern was to insure
the fidelity of an employee and to safeguard confidential records.
Weinstock testified that he would not have called Lawrence in if
Lawrence had not been an officer of the Office Guild. We see no
reasonable basis for a reluctance to trust a union officer combined with
88 Lawrence subsequently learned that he was mistaken and that his position was to continue until the
merger actually took effect.
+8 Our account of this conversation is based on Lawrence 's testimony . Weinstock contradicted Lawrence's
version. He testified that he told Lawrence that a confidential position was open and that he had no objec-
tion to any of the employees being a member or officer of the Office Guild. Weinstock further testified that
he asked Lawrence if he would not divulge confidential information if called on to do so as a union officer, and
that Lawrence assured him he would keep the confidence of the respondent. In accordance with the find-
ings of the Trial Examiner and in view of the unconvincing nature of Weinstock's testimony in connection
with the discharge of Grace Porter and the transfer of Isaac Gilbert , we credit Lawrence 's testimony.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
a willingness to trust the same person as an ordinary union member.
Furthermore, the job Lawrence held before his conversation with
Weinstock was of a confidential nature. Finally, we take into con-
sideration the similarity between the respondent's conduct toward
Lawrence and that shown toward Lissemore, as subsequently de-
scribed herein.
On the entire record we find that the respondent,,by means of the
described statements of its executive, Weinstock, to Lawrence, inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
H. Coercion of Una Lissemore
Une Lissemore was employed by the respondent in December 1926.
After working 4 months as a typist in the personnel department, she
was transferred to the editorial auditing department, where she com-
bined typing with clerical work on the respondent's personnel and
pay-roll records. Her work was confidential in nature.
When Gertrude Burrell left her position with the respondent on
July 15, 1937, a substantial amount of Burrell's work, also connected
with pay rolls, was distributed to Lissemore. The duties so reassigned
were more important than Lissemore's previous duties and gave her
access to a greater quantity of confidential information.
Lissemore's activities in connection with the B. S. A. U. have
already been described. She also joined the Office Guild when it
started and became secretary of The New York Times Unit of that
organization.
On July 16, 1937, the Fortnightly News Letter, published by The
New York Times Unit of the Guild, reported that Lissemore, along
with others, had been nominated for delegate to the Representative
Assembly of the Guild. Some time later, Weinstock called in Finch
and said he had noticed the report. Finch testified that Weinstock
commented' on some recent complaints from various editors of leaks
of pay-roll information and asked Finch if he was quite sure of Lisse-
more's honesty. Finch further testified that he replied that he was
certain of Lissemore's honesty, but would confirm his belief by having
a talk with her. Weinstock's testimony as, to this conversation is in
general accord with Finch's version. Weinstock further testified that
he spoke to Finch, after reading of Lissemore's election to office,
because he wished "to find out whether the operations of our pay roll
department were going to be considered confidential, in spite of the
active work in the Guild"; also, that he explained to Finch that "we
had no objection to any person in the auditing department being a
member of the Newspaper Office Workers' Guild and . . . we had no
objection to any member of the auditing department being an officer'
of the Newspaper Guild Workers' Guild .. . . our only concern was
THE NEW YORK TIMES COMPANY 1167
to see that persons that held confidential positions should realize
that . . . the confidence imposed in them in that position should not
be violated."
Finch spoke to Lissemore after his conference with Weinstock.38
Lissemore testified as follows regarding the conversation between
Finch and herself:
Mr. Finch said he wanted to speak: to me, that lie had been
told not to speak to me about it, but he did want to let me know
how things were; that he had seen my name on this list and he
wanted me to know that in my position, working on the pay roll,
and such, that Mr. Weinstock did not want anyone in the audit-
ing department to hold a position in the Newspaper Guild. So
I told him it did not make any difference to me. It made no
difference what work I was doing with the Times; that my
position was entirely apart from any connection with the Guild.
He said he understood it, but perhaps the fourteenth floor 37
would not, perhaps, understand it that way. He said that they
took these lists and went over them and found out where they
worked, and they could see to it that I was taken off this payroll
work.
So I said that I did not see what difference it made, and, he
said, "Well, put yourself in Mr. Sulzberger's position. Would
you employ anybody that was a member of the Guild?" I said
I could not very,well do that. I was not Mr. Sulzberger. He
said I should imagine I was. I said that the two things were so
far apart to me that I just could not do it. So he said, "Well,"
he said, "anyway Mr. Weinstock did not mind anyone being in
the Guild."
He said that he was not opposed to anyone being in the Guild,
but he did not want anyone in the auditing department to hold
an office, and I said that was sort of silly, and he went on to say
could I say that I would not be active, and f said no.
Q. What was that?
A. That I would not be active, could he say to Mr. Weinstock
or someone that r would not be active in the Guild. I said I
did not think so. And then I said, "It would not be right for
me to belong, and then just become inactive, just because I was
told to," and that is how we left it, how it ended. I could not
promise not to be active.
36 The record does not establish the dates of these conferences, except as being between July 16 and No-
vember 22,1937. Finch set the time in July 1937. Lissemore testified that Finch spoke to her in September
1937. Weinstock testified that his conversation with Finch occurred in the fall of 1937.
67 The reference is to the respondent's major executives, who have their offices on the 14th floor of the
respondent 's building.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finch contradicted Lissemore's account in its entirety and testified
as follows to what was said:
I told Miss Lissemore that I had noted the notice in the bulle-
tin of her nomination to office, and I asked her if she felt that
her obligations to the Guild as an officer would conflict in any
way with her obligations to the Times to keep all matters confi-
dential. She assured me that there. would be no conflict, and
that there was nothing for me to be concerned over.
After his conversation with Lissemore, Finch reported to Wein-
stock.' Finch and Weinstock' testified that Finch said he had inter-
viewed Lissemore and was convinced from her assurances that there
was no basis for a fear that she would divulge confidential information.
On October 1, 1937, Lissemore's salary was raised from $30.60 to
$34. On November 10, 1937, Lissemore was elected a delegate's
alternate or reserve alternate to the Representative Assembly of the
Guild. On November 22, 1937, Lissemore wrote as follows to a Mr.
French, who was connected with the Guild:
Please do not have my name appear in any news letters or
release. It is most important that under no circumstances must
my name show for any election of office. I will explain this when
I see you. Will you please drop me a note so that I'll know you
have received this.
After her conversation with Finch, Lissemore went to meetings of
the Guild less frequently than before. When the respondent's counsel
pointed out that she had been elected a delegate's alternate or reserve
alternate at a time placed by her testimony as subsequent to the
conversation, Lissemore testified: "Yes, but that is because I was up
for the office at that time. I could not back out then."
In the described conflict between the testimony of Lissemore and
that of Finch, we credit the account given by Lissemore. In doing
so, we take into consideration the findings of the Trial Examiner; the
similarity of this episode in pattern and attempted justification with
that involving Michael J. Lawrence; the hostility to. unions shown by
Weinstock in other connections; his earlier use of Finch for anti-union
purposes; and the fact that Lissemore's letter to French and her
lessened attendance at union meetings were natural products of
intimidation. We are of- the opinion that Finch's remarks to Lisse-
more were in accordance with expressed or implied instructions from
Weinstock. In view of the tenor of these remarks and for reasons
similar to those advanced in our discussion of Weinstock's coercion
of Lawrence, we are also of the opinion that Weinstock and Finch were
interested in discouraging Lissemore from holding office and being
active in the Guild, rather than in safeguarding the respondent's
confidences.
THE NEW YORK TIMES COMPANY 1169
Upon the entire record we find that the respondent, by the action
of its supervisory official, Finch, in intimidating Una Lissemore on
the instructions of its executive, Weinstock, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
At the hearing counsel for the Board contended that a transfer of
Lissemore in 1938 and certain transfers of Louis Berg resulted from
discrimination for union activity. The Trial Examiner found in his
Intermediate Report that such transfers were caused by changes
required by the reorganization of the auditing department. No
exceptions to these findings have been filed. We have reviewed the
evidence as to the transfers and concur in the Trial Examiner's findings.
Since no exceptions to these findings were filed, we affirm them without
detailed discussion.38
1. Coercion of David D. Goldstein
David D. Goldstein was employed by the respondent in September
1933, since which time he has worked in the school promotion depart-
ment, a unit of the respondent's circulation department. Goldstein's
duties consist of interviewing high school principals and teachers for
the purpose of having them order copies of The New York Times for
classroom uses, obtaining the appointment of student representatives
to handle circulation in their respective schools, addressing students,
and otherwise endeavoring to encourage use of The New York Times
in schools.
Goldstein's appointment, originally on a trial basis but subsequently
made permanent, was at a salary of $20 a week. At the end of 2 or 3
months his salary was increased to $25. In December 1936 or January
1937, he received a raise to $30 a week and has since continued to
receive this compensation.
Goldstein has easily the outstanding record for productivity in his
department, being the leader for each year for which statistics were
placed in evidence. The statistics showing the total school circulation,
the amount obtained by Goldstein, and that obtained by the next
highest employee are given below:
Year Total circu-
Goldstein's Next highestlation circulation
1935--------------------------------------------------------- 1,215,520 287, 214 255,6681936--------------- ---------------------------- 1,674,995 521, 694 290, 304
1937-------------------------------------------------------- 1,809,580 573, 846 353, 595
1938 2,277,659 753, 327 534, 526
1939--------------------------------------------------------- 1,197,819 359, 598 39 310, 327
39 Of . Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity,
Local #133, 11 N. L. R. B. 1397 ; Matter of Mike Bierner , doing business as Bierner & Son and United Flatters.
Cap and Millinery Workers ' International Union, Local .57, 20 N. L. R. B. 673.
39 The figures are for the school years ending in June of the respective calendar years shown and beginning
in the previous September , except that the 1939 figure relates to a period ending January 31 , 1939 . Statistics
for the 1934 school year do not appear in the record.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goldstein also introduced several new promotional ideas which
proved highly successful , and received various commendations from
his superiors . At the time of the hearing Goldstein had the most
seniority in his department.
In April 1937 Goldstein joined the Office Guild, being the first
member of that organization from his department . Subsequently he
was elected first vice chairman of The New York Times Unit of the
Office Guild. Goldstein also secured five or six members for the Office
Guild from his department and other units of the .circulation depart-
ment. After the Office Guild merged with the Guild, Goldstein was,
in August or September of 1937, elected a delegate to the Guild's
Representative Assembly. Goldstein also periodically distributed
Guild literature in his department . His union activity was known
to Schleigh, manager of the circulation department.
In September 1937 the school promotion department was merged
with the smaller college promotion department. Alice H. Palmer,
formerly head of the college department , became manager of the
merged departments, and F. Harry Anspacher, previously the manager
of the school department, left the employment of the respondent.
About 2 weeks after this merger, Goldstein told Schleigh that he
thought he was the logical successor to Anspacher. Schleigh replied,
"I make all the decisions around here, and if you don't like it, you
can quit." Goldstein then asked if he could be placed in some kind
of an advisory capacity to Palmer. Schleigh refused the request.
Goldstein then asked for a raise, which Schleigh refused
A few days after this conversation Goldstein saw Sulzberger, alleged
that he had been 'done an injustice by Schleigh in being overlooked
for the position of manager of the school department , and asked for
an investigation. Sulzberger referred him to Harold Hall, Adler's
assistant . Hall told Goldstein that he would investigate and let
Goldstein know. Goldstein did not thereafter bear from Hall.
On October 28, 1937, Palmer sent Goldstein a memorandum reading:
I have taken your request for an increase in salary up with
Mr. Schleigh. We sincerely appreciate the excellent piece of
work you are doing, but regret at this time that no increase can
be put through. As I have told you formerly, if any do go
through at Christmas time, you will certainly be the first one to
be considered.
Despite the tenor of this note, Goldstein did not subsequently receive
any raise in salary, although others in his department did. Thus
Alice H. Raynor received an increase of $5 to $35, coincident with
her transfer from school to college work ; Miss K. Sheenan was raised
$5 to $30 when she was similarly transferred; Miss Seddon, a member
of the Guild , was raised $5 to $30; John S. Booth was raised $10 to
THE NEW YORK TIMES COMPANY 1171
$40. At the time of the hearing, however, no one doing the same
'kind of work as Goldstein was receiving more than a salary of $30.
In April 1938 Alice H. Palmer was dismissed, and the school and
college departments were separated as before. This time Patrick J.
Reynolds was appointed head of the school department. Reynolds,
who was not a member of the Guild, had at one time worked in the
school department for about 5 or 6 months; just previously, however,
he had been head of the respondent's home delivery department and
had, for 4 months before Palmer's dismissal, also helped in the school
department.
When Reynolds learned of this appointment, he told Goldstein:
I know it must be a bitter blow to you. I know damned well
you deserve the job, everybody does. I will try to do the best
I can. If anybody can get an increase for you through Schleigh.
I can.
Goldstein then attempted to see Adler, but was told by the latter's
secretary that Adler thought he should see Schleigh first. Schleigh
was away at the time, but Goldstein saw him on his return 4 weeks
later and asked him why Reynolds had been appointed manager.
Schleigh told Goldstein that he did not give a "God damn if Mr.
Ochs 40 hired you or not," and said he knew all about Goldstein's
visits to Sulzberger and Hall. He added: "You have done a good job,
but there are two damned good reasons why Reynolds is head of the
school department and not you. Number one is that Reynolds has
been here longer than you, be has seniority; two, he has had greater
school experience, that is, greater experience in my department than
you." Goldstein replied that both of these reasons were false, and
Schleigh called him "a God damned liar." Goldstein finally charged
that he had been discriminated against because of his membership in
the Guild, whereupon Schleigh said, You know God damned well
you have not been discriminated against for Guild activity, and
besides, when I talk Guild, I talk Guild with the publisher, Mr.
Sulzberger, and no one else."
That week Goldstein saw Adler, complained that the reasons given
by Schleigh for preferring Reynolds as the department head were
untrue, and asked Adler to investigate. Adler conceded that Gold-
stein might have been done an injustice, but said: "This is a big
business, son. I appointed Mr. Schleigh to an important position as
circulation manager, and I cannot overrule his appointments; I cannot
overrule his decisions." Adler then told Goldstein that he was still a
young man and that some day he would be glad he worked for the
respondent and would be able to capitalize on his position "on the
10 The reference is to Sulzberger's predecessor as head of the respondent. The significance of the statement
is obscure and is not clarified in the record.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside." He then advised Goldstein to "forget about it" and
promised to investigate Goldstein's claims and let him "know."
However, Goldstein did not at any subsequent time hear from Adler.
In August 1938 Reynolds informed Goldstein that Schleigh had
requested that Goldstein should not speak to other members of the
school staff on office time, allegedly because it was not good for the
morale of the department. It was, however, a general custom, of
which Reynolds had earlier indicated his approval to Goldstein, for
members of the department to converse with each other in the office
about their work and to exchange ideas. Goldstein had never before
received such instructions, and there is no evidence that similar orders
were given to the other employees. In fact, so far as Goldstein knew,
no others were so limited at this time. Goldstein himself did not
comply with the order when other employees approached him for
information and gradually resumed talking to such others without
further objection from Reynolds. We find that Goldstein was the
only employee in the department placed under the described restric-
tions.
In November 1938 Goldstein asked Reynolds to make an appoint-
ment for him with Schleigh so that he could ask for a raise in salary.
Reynolds said he would arrange an appointment but asked Goldstein
to write a memorandum explaining why he deserved an increase.
Reynolds also said, "Dave, would you like me to give you a neutral
opinion of why you are not sitting in my chair as' head of the school
department?" Goldstein expressed anxiety to hear this opinion, and
Reynolds continued:
The trouble with you, Dave, is that you have been in too much
activity. 'It has changed your personality. The struggle has
changed your personality. You don't smile enough. You don't
laugh enough. My God, when I came to The Times here in 1934,
you were looked up to as-. the best man in the department.
Everyone came to you for advice, and it was recognized that you
would be the head of the department some day. I know that the
activity which has changed your whole personal set up is respon-
sible for management not appointing you to the position which
I now hold.
Goldstein then told Reynolds that "you have heard of the Wagner
.Act" and pointed out that his production had increased each year.
Reynolds admitted the increases in production, and the conversa-
tion ended. 41
41 Our account of this conversation , as well as of others described in this section, is based on Goldstein's
uncontradicted testimony.
THE NEW YORK TIMES COMPANY 1173
On November 30, 1938, Goldstein addressed to Reynolds a mem-
orandum citing his achievements in the department. The next day
he saw Schleigh. Schleigh said that he was getting tired of hearing
about Goldstein's " plight" and of Goldstein's asking for wage increases
that Goldstein would "never, never" get a raise , that anybody could
do Goldstein's job, that instead of selling the Times Goldstein was
selling himself, and that if Goldstein had done good work, it was
appreciated. Schleigh added:
If I have to give you an in crease, somebody else is going to ask
for an increase. I might as well close up the department. This
department is of no damned use to us. It costs us a lot of money,
and that is all you are going to get, thirty dollars a week.
Schleigh also remarked during this conversation that the school
department was a luxury , and that "we are doing the teachers a favor
and not the Times."
The Guild maintains that Goldstein's failure to obtain promotion
or further increases in salary was the result of discrimination against
him because of his union activities . Unquestionably , the evidence
raises a strong suspicion to this effect . However, there . is no showing
of any rule or custom by which the respondent bases promotions to
supervisory positions on seniority or on success as a salesman. Nor
is the evidence inconsistent with a theory that Goldstein had reached
the salary roof for his duties, regardless of his superiority to other
employees who also reached that roof. Finally, the Trial Examiner,
who observed Goldstein on the witness stand, referred in his Inter-
mediate Report to Goldstein 's "youthfulness and his self -assurance"
and expressed the opinion that the respondent might have believed
Goldstein to be "lacking in executive qualifications considered neces-
sary in a department head." For these reasons we are of the opinion
that the evidence does not support a finding that Goldstein was not
promoted in salary or position for union reasons.
However, no explanation appears for the respondent's instructions
in August 1938, requiring Goldstein to refrain from conversation with
other employees on office time. In view of Goldstein 's outstanding
success as a salesman, his prominence and activity in the Office Guild
and the Guild, Reynolds' hostility to the Guild, and the fact that the
respondent addressed these instructions to Goldstein alone, we find, as
did the Trial Examiner, that such instructions were inspired by a
desire to discourage Goldstein 's union activity . It is also apparent
that Reynold 's lecture to Goldstein in November 1938 was •a thinly
veiled and coercive attempt to intimidate Goldstein into giving up
union activity and to warn him that such activity was prejudicial to
his chances of advancement . We find, therefore , that by the dis-
323429-42-75
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory instructions referred to and by the described conduct of
its supervisory employee, Reynolds, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,'
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among" the several States and
with foreign countries and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair practices,
we shall order it to cease and desist therefrom and to take certain
affirmative action which we find will effectuate the policies of the Act.
We have found that the respondent has discriminated in regard to
Grace Porter's. hire and tenure of employment. We shall, therefore,
order the respondent to offer to Grace Porter immediate and full rein-
statement to her former or a substantially equivalent position, with-
out prejudice to her seniority and other rights and privileges. The
respondent contends that Porter is barred from reinstatement because
of lathes arising from the length of time elapsing between the date of
her discharge and the date on which the charge naming her was filed.
This contention is without merit.42 The respondent also contends
that Porter may not be reinstated, on the basis that Porter obtained
regular employment substantially equivalent to her employment
with the respondent. We find, however, that Porter did not obtain
such employment. Moreover, even if she had done so, she would
not thereby be barred from reinstatement.3 Although, as we have
seen, the delay in filing the charge naming Porter does not bar her
reinstatement, nevertheless, in view of the fact that 3 years elapsed
after her discharge until such charge was filed, we shall not direct the
payment of back pay to her in our usual manner, but shall order the
respondent to make her whole by payment to her of an amount equal
to that which she would have earned as wages from January 14, 1939,
the date on which the charge was filed,44 to the date of the offer of
reinstatement, less her net earnings during such period.41
42 Matter of Colorado Milling & Elevator Company and Denver Trades and Labor Assembly , 11 N. L. R. B.
66; Matter of Charles Banks Stout , et at. and Federal Labor Union No. 20028, affiliated with the American
Federation of Labor, 15 N. L. R. B. 541.
+3 Matter of Eagle-Picher Mining & Smelting Company, a corporation , and Eagle-Picher Lead Company,
a corporation , and International Union of Mine, Mill & Smelter . Workers, Local Nos. 15, 17, 107 , 108, and 111.
16 N. L. R. B. 727.
THE NEW YORK TIMES COMPANY 1175
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of Fred Jaeger. We have seen,
however, that Jaeger was not fitted for the position from which he
was discharged. It would not effectuate the policies of the Act to
order Jaeger's reinstatement to such a position. We have also seen
that Berger's efforts to eliminate union activity resulted in the destruc-
tion of the probability that Jaeger would be transferred to another
post. Accordingly, we shall order the respondent to offer Jaeger
employment, without prejudice to his seniority or other rights and
privileges, in a position which he is qualified to perform, which affords
the same salary as that from which he was unlawfully discharged,
and which corresponds in dignity to other positions affording such
salary. We shall, likewise, order the respondent to make Jaeger
whole for any loss of pay be may have suffered by reason of his dis-
charge. Since the Trial Examiner found that the respondent had
not discriminatorily discharged Jaeger, we shall order the respondent
to make Jaeger whole for such loss by payment to him of a sum equal
to the amount he would normally have earned as wages from the date
of his discharge until the date of the Intermediate Report, and from
the date of our order to the date of the offer of reinstatement, deducting
first his dismissal pay and then his net earnings during such periods.41
We have found that the respondent engaged in unfair labor prac-
tices by transferring Isaac Gilbert to an inferior position. We shall,
therefore, order the respondent to offer Gilbert immediate and full
reinstatement to the position from which he was unlawfully trans-
ferred, without prejudice to his seniority and other rights and priv-
ileges. Since Gilbert was transferred at the same salary and since it
appears that the respondent did not discriminate against Gilbert in the
matter of wages, we shall not enter an order of back pay for Gilbert.
Finally, we shall order the respondent to take certain other action
necessary to effectuate the policies of the Act.
Since we have found that the respondent did not engage in unfair
labor practices by its discharge of Leonard H.' Goldsmith, or by its
44 Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America,
Branch No . 259, 8 N . L. R. B. 944 ; Matter of Washougal Woolen Mills and Local 147, Textile Workers Union
of America, 23 N. L. R. B. 1.
15 By "net earnings" is meant earnings less expenses , such as for transportation, room , and board , incurred
by an employee in connection with obtaining work and working elsewhere than for the respondent, which
would not have been incurred but for the unlawful discrimination and the consequent necessity of the
employee's seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brother-
hood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union , Locai 2590,8 N . L. R. B. 440.
Monies received for work performed upon Federal , State , county, municipal, or other work -relief projects
are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due
the employee , and the amount thereof shall be paid to the appropriate fiscal agency of the Federal , State,
county, municipal , or other government or governments which supplied the funds for said work-relief
projects.
45 Matter of E. R. Hafelfinger Company , Inc. and United Wall Paper Crafts of North America , Local No. 6,
IN. L. R. B. 760.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer of Jane Schwartz ,- we shall dismiss the allegations of the
complaint to that effect.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Newspaper Guild of New York is a labor organization, and
Newspaper Office Guild of New York and Bookkeepers, Stenographers
and Accountants Union, Local 12646 , were labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Grace Porter and Fred Jaeger, and each of them, thereby dis-
couraging membership in labor organizations , the respondent has
engaged in and is engaging in unfair labor practices , within the
meaning of Section 8 (3) of the Act.
3. By transferring Isaac Gilbert on April 18, 1938, for his union
membership and activity, and by otherwise interfering with, restrain-
ing, 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not-engaged in unfair labor practices , within
the meaning of Section 8 (3) of the Act, by discharging Leonard H.
Goldsmith, or within she meaning of Section 8 (1) of the Act by trans-
ferring Jane Schwartz to new duties on May 18, 1938.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
The New York Times Company , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its
employees by in any manner discriminating in regard to the hire,
tenure of employment, or terms and conditions of employment of
any of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
TIE NEW YORK TIMES COMPANY 1177
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Grace Porter immediate and full reinstatement to her
former or a substantially equivalent position, without prejudice to her
seniority and other rights and privileges;
(b) Offer to Fred Jaeger immediate employment without prejudice
to his seniority and other rights and privileges, in a position which he
is qualified to perform, which affords the same salary as that from
which he was discharged, and which corresponds in dignity to other
positions affording such salary;
(c) Offer to Isaac Gilbert immediate and full reinstatement to the
position from which he was transferred on April 18, 1938, without
prejudice to his seniority and other rights and privileges;
(d) Make whole Grace Porter for any loss of pay she may have
suffered by reason of her discriminatory discharge, by payment to
her of a sum of money equal to that which she would normally have
earned as wages from January 14, 1939, to the date of the respondent's
offer of reinstatement pursuant to this Order, less her net earnings47
during such period; deducting, however, from the amount otherwise
due said Grace Porter monies received by her for work performed
during such period upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments, which supplied the funds for said
work-relief projects;
(e) Make whole Fred Jaeger for any loss of pay he may have
suffered by reason of his discriminatory discharge by payment to
him of a sum of money equal to that which he would normally have
earned as wages from the date of his discharge to March 22, 1940,
the date of the Trial Examiner's Intermediate Report, and from the
date of the Order herein to the date of the respondent's offer of em-
ployment pursuant to this Order, deducting first his dismissal pay
and then his net earnings 48 during such periods; and deducting, further
from the amount otherwise due said Fred Jaeger monies received by
him for work performed during such periods upon. Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount so deducted to the appropriate fiscal agency of the Federal.
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(f) Post immediately in conspicuous places at its plant and offices
in New York City, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
47 See footnote 45, supra.
48 See footnote 45, supra.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which it is ordered to cease and desist in paragraphs 1 (a) and (b) of
this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; (3)
that the respondent 's employees are free to become or remain members
of Newspaper Guild of New York and the respondent will not dis-
criminate against any employee because of membership or activity in
that organization;
(g) Notify the Regional Director for the Second 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 in so far as it alleges that the respondent engaged in
unfair labor practices by discharging Leonard H. Goldsmith and by
transferring Jane Schwartz.
MR. EDWIN S. SMITH, concurring in part and dissenting in part.
The principal opinion avoids making any finding as to whether
Jaeger's transfer to the advertising department was discriminatory.
It is my belief that the evidence establishes that the transfer was
itself an unfair labor practice , and I would make a finding to that
effect even though I also believe that Jaeger's discharge was dis-
criminatory . The basis for this belief rests largely on matters analyzed
in the principal opinion itself, namely: the respondent's bad faith in
transferring Jaeger to a job at which he could not possibly succeed;
the circumstances that although Jaeger had for many years served
in the same position and engaged in various outside activities his
serious difficulties with his superior arose only when he became active
in the Guild; the fact that the disciplines imposed by Hughes upon
Jaeger were of a nature to impede his union actions ; and the "shown
similarity in pattern between the events in the business news depart-
ment and those in the advertising department ." In addition, the
unjustified nature of the complaints that Jaeger disturbed men at
work in the city room and the sports department indicates that the
respondent was predisposed to attribute fault to Jaeger merely
because he engaged in union activity . It is true that Jaeger was
guilty of certain delinquencies while he was in the - business news
department . This fact , however, does not resolve the issue involved,
which is whether Jaeger's transfer was the outgrowth of these delin-
quencies or of a desire to discourage membership in the Guild. The
weight of the evidence establishes , I believe, that such a desire existed
and that it was the fundamental cause of Jaeger's difficulties with
Hughes and of Jaeger 's transfer . It would follow from a finding of
this nature that the Board should require the respondent not merely
to offer Jaeger employment of the nature described in the Order but
to offer him reinstatement to the position from which he was trans-
ferred in October 1936 or to a substantially equivalent position.
THE NEW YORK TIMES COMPANY 1179
I am also of the opinion that the respondent violated Section 8 (3) of
the Act by discharging Leonard H. Goldsmith. Goldsmith, though
careless in his work, was extremely successful in obtaining business.
That the latter circumstance far outweighed the former before
Goldsmith became active in the Office Guild is shown by the fact that
the rate of Goldsmith's salary increase was, as Berger testified,
greater than that of almost any other salesman in the display classified
division. These increases were recommended by Berger. Yet, after
Goldsmith became active in organizing the office workers, Berger
recommended Goldsmith's discharge, thereby shifting emphasis from
Goldsmith's productivity to alleged violations of office rules. . Berger's
actions thus afford an obvious parallel to his change in attitude toward
Jaeger. Still another parallel exists in the low ratings which Berger
gave to Goldsmith in "cooperation and loyalty" and "attention to
duty" after Goldsmith became active in the Office Guild. The record
demonstrates, in my opinion, that Berger attempted to build up in
the case of Goldsmith, as he did in the case of Jaeger, and for the
same anti-union reasons, a misleading record of delinquencies. The
falsity of Berger's ratings of Goldsmith finds particular emphasis at
one point. In January 1937, Berger gave Goldsmith a B in "produc-
tiveness." On July 28, 1937, Berger rated Goldsmith C in the same
category. Yet the evidence establishes that Goldsmith's linage in
the boats and accessories classification for the first 7 months of 1937
exceeded his linage for the comparable period of 1936 and increased
the respondent's leadership over its two principal competitors in the
field. Berger's testimony attempted to justify the drop in rating on
the basis that boat linage had dropped in June and July of 1937 both
as compared to those 2 months in the previous years and as compared
to the linage of the respondent's competitors. However, the drop in
linage was due to exceptional circumstances over which Goldsmith
had no control, for which he was not at fault, and which he had
explained to Berger. Furthermore, the ratings made in July.1937
obviously were intended to cover the entire period beginning with
January of that year. In view of Berger's anti-union, activities and
of the absence of any other reasonable explanation, I conclude that
the lowering of Goldsmith's rating is attributable to Goldsmith's
beginning of his union activity in April 1937.
Berger was demoted from his position as manager of the display
classified division before he was able to bring to fruition his plans to
get rid of Goldsmith on the basis of the misleading record. However,
Berger left behind him in Goldsmith's personnel record the written
indicia of the false record. These caused Falk, Berger's successor, to
"investigate" Goldsmith, according to Falk's own testimony. Since
the "investigation" led to Goldsmith's discharge, Berger's anti-union
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
efforts were a direct cause of the discharge. Furthermore, Skelly's
memorandum, on which Falk heavily relied, incorporated some of
Berger's critical memoranda which were part of the false record.
Also, Berger had by addressing criticisms of Goldsmith to higher
executives of the respondent prepared the latter to accept an unfavor-
able estimate of Goldsmith. Thus, even conceding that Falk acted
in good faith-and the unobjective nature of his "investigation"
might well lead to another conclusion-it appears. that Goldsmith's
discharge was caused by Berger's hostility to employee organization.
For these reasons it appears to me that the respondent discriminated
in regard to Goldsmith's hire and tenure of employment.
In all respects other than those indicated I concur in the foregoing
findings, conclusions; and order. In view of the position of the other
members of the Board with respect to Jaeger's transfer, I also concur
in that part of the order relating to the reinstatement of Jaeger.
MR. WM. M. LEISERSON, concurring in. part and dissenting in part:
I am in agreement with, that part of the decision holding that "the
respondent has not engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act, by discharging Leonard H. Gold-
smith, or within the meaning of Section 8 (1) of the Act by transferring
Jane Schwartz to new duties on May 18, 1938."
I also agree that supervisory officers of the respondent made state-
ment to employees which had the effect of interfering with, restrain-
ing, and coercing the employees in the exercise of the rights guaranteed
in Section 7 of the Act and that the respondent has thereby engaged in
unfair labor practices within the meaning of Section 8 (1) of the Act.
I do not agree that the respondent was guilty of any unfair labor
practices in connection with its negotiations with the Guild as found
in Section III A of the decision.
I do not agree that the transfer of Gilbert on April 18, 1938, was due
to his union membership and activity. He is getting the same salary
in the work to which he was transferred as lie did at his previous job,
and I am not convinced that the change was a demotion.
The Trial Examiner in his Intermediate Report recommended that
the complaint pertaining to Jaeger's transfer and discharge by the
respondent should be dismissed. I would so order.
I think the complaint should not have been amended to include
Grace Porter among those alleged to have been discriminatorily dis-
charged. Porter was a. confidential secretary, and she was dismissed
in January 1.936. The charge in the present case was filed in Novem-
ber 1937, and there were four amended charged filed subsequent to
this date. None of them included Porter. The complaint was issued
in December 1938, and Porter was .not included in this. It was not
until January 1939, 3 years after Porter's dismissal that the com-
plaint and the charge were amended to include Porter. She was
THE NEW YORK TIMES COMPANY 1181
employed at the time at wages higher than she had received on the
Times. Her employer suspected her of having some connection. with
a communist unit on the Times. I am of the opinion that the National
Labor Relations Act does not prevent an employer from discharging
a confidential secretary whom lie does not want to keep because he
suspects her of communist connections.'