The Sun Co. of San Bernardino, California

National Labor Relations Board - Board Decisions

Mar 6, 1953

103 N.L.R.B. 359 (N.L.R.B. 1953)

THE SUN COMPANY OF SAN BERNARDINO , CALIFORNIA 359
THD SUN COMPANY OF SAN BERNARDINO , CALIFORNIA and THOMAS L.
MULLINS
THE SUN COMPANY OF SAN BERNARDINO , CALIFORNIA and JOSEPH A.
BENNETT. Cases Nos. 21-CA-1365 and 21-CA-1507. March 6,
1953
Decision and Order
On December 11, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in these cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modifications.
1. On November 18, 1952, subsequent to the close of the hearing, the
Respondent filed a written motion with the Trial Examiner in which
it requested that the record in this proceeding be reopened for the
purpose of adducing evidence (1) with respect to whether the charg-
ing parties, Mullins and Bennett, whose discharges by the Respondent
were found by the Trial Examiner to be discriminatory, were "front-
ing" for the International Typographical Union, herein called the
ITU, a union not in compliance with Section 9 (f), (g), and (h) of
the Act; and (2) to explain or refute any instance of alleged discrimi-
nation in the award of overtime hours between the union and non-
union employees in the Respondent's composing room. In his Inter-
mediate Report, the Trial Examiner denied the motion. The Respond-
ent has filed timely exceptions thereto.
Regarding that portion of the motion addressed to the alleged
fronting by the charging parties, the Trial Examiner concluded that
"the cases hold that questions of that nature are irrelevant where, as
here, the charge is confined to allegations of discrimination against
the charging parties." While we agree with his ultimate disposition
of this allegation, we do not concur in the reasons assigned therefor by
the Trial Examiner.
1 The Respondent 's request for oral argument is hereby denied because the record and
the Respondent 's exceptions and brief, in our opinion , adequately present the issues and
the positions of the parties.
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Members Houston , Styles,
and Peterson].
103 NLRB No. 36.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood Parts, Inc.,3 decided on November 21, 1952, involved facts
paralleling those presented in the instant case. The Board there held
that whether an employee "in filing the charges on behalf of himself
and others, was acting as an individual seeking redress for violations
of the Act by the Respondents directed against him and other em-
ployees, or was acting as a representative of the noncomplying union
so that his charges were merely a device whereby the union could avoid
complying and yet seek by subterfuge to reap the benefits of the Act,"
presented "a question of fact which must be determined by an ap-
praisal of all the evidence in light of the circumstances then existing."
Accordingly, we find, contrary to the Trial Examiner, that evidence
with respect to alleged fronting by Mullins and Bennett was relevant
even though the charges in the instant case were confined to allega-
tions of discrimination against them as charging parties.
However, the Respondent stated in its motion that if the record
were reopened, it would introduce evidence which
"... will consist of proof by or from records of the National
Labor Relations Board that International Typographical Union,
the union mentioned in Paragraph 3 of the Consolidated
Amended Complaint herein . . . has not and had not at any
time mentioned in the Charges, Complaint, Amended Complaint
and the evidence, complied with Section 159 (f), (g) and
(h). . . ." (Emphasis supplied.)
In addition to the offer of proof contained in the motion, the Re-
spondent submitted a memorandum in support of the motion in which
it drew attention to that portion of the record which indicates that
a representative of the ITU
.. . sat with the General Counsel at the counsel table though-
out the hearing and assisted him in the conduct of the proceed-
ings, and that on one occasion, the witness, Thompson, while
under examination by the General Counsel, asked the union
agent from the stand if he, the union agent, wanted him, the
witness, to answer one of the questions asked of him by the Gen-
eral Counsel ! . . . The NLRB Regional Office at Los Angeles
even served the attorneys for the union with copies of the charges,
complaints and notice of hearing at the same time it served re-
spondent's attorneys, and made proof of it at the hearing.
In reply to the Respondent's motion, the General Counsel conceded
that the ITU was not in compliance at any of the times mentioned
therein, and that its representative sat with and assisted him during
the hearing.
Having considered the Respondent's offer of proof contained in its
motion, as well as the portions of the record adverted to in the memo-
8101 NLRB 445. See also N . L. R. B. v. Happ Bros . Co., Inc., 196 F. 2d 195 (C. A. 5).
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 361
randum in support of the motion, we find that, even if all the allega-
tions therein are accepted as true, they would not establish that Mullins
and Bennett were fronting for the ITU.4 Accordingly, the Respond-
ent's exception relating to the Trial Examiner's denial of that part
of its motion addressed to the issue of fronting is hereby overruled.
2. As to the request in the Respondent's motion for an opportunity
to explain or refute any apparent difference in the award of overtime
hours between union and nonunion employees, the Trial Examiner
found that the Respondent had sufficient opportunity during the
course of the hearing to present such evidence and that, in fact, the
Respondent had done so. Accordingly, in his Intermediate Report,
the Trial Examiner found, without any discussion of the issue, that
the Respondent had discriminated against union employees in the
award of overtime hours in violation of Section 8 (a) (1) of the Act.
The Respondent has excepted to this finding.
In an attempt to establish discrimination in this respect, the Gen-
eral Counsel introduced into evidence the payroll records of all em-
ployees in the Respondent's composing room on both the day and the
night shifts for the period from January 1 to September 27, 1952.
These documents disclose that some employees who were not union
adherents received more overtime during that period than did the
union adherents. In rebuttal, the Respondent's composing room me-
chanical foreman testified, without contradiction, that most of the
overtime was awarded to employees on the day shift because of the
necessity for meeting advertising deadlines, that a substantial ma-
jority of union employees were on the night shift, and that at least
one of the union adherents uniformly refused to work overtime hours.
The Board has considered these payrolls and the record as a whole
and finds, contrary to the Trial Examiner, that the General Counsel
failed to establish by a preponderance of the evidence that the Re-
spondent discriminated in the award of overtime against union em-
ployees.
3. During the course of a speech made to the assembled employees,
Guthrie, Respondent's president and editor, stated that "The privi-
lege of conferring in a group or individualy is a priceless one and we
intend to assure you today that we will not be forced into a position
where you members of the Sun family are unable to come to us per-
sonally with your own problems, grievances and difficulties. We in-
tend to continue to deal with you directly." The Trial Examiner
found these remarks violative of Section 8 (a) (1) of the Act, to
which finding the Respondent has excepted. We find merit in this
exception.
4 Cf. W. T. Rawlcigh Co v. N. L R B., 190 F. 2d 832 (C. A. 7).
However , as the ITU was not in compliance with Section 9 (f), (g), and (h) of the Act
at the times material herein, we shall delete its name from the order and notice See
W. T. Rawleigh Co. v. N. L. R. B.. ibid.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has on previous occasions considered statements of sim-
ilar content and found that such remarks did not contain any threats
of reprisal or force or promise of benefit .5 Moreover, Section 9 (a)
of the Act does not proscribe direct handling of grievances as sug-
gested in Guthrie's remarks. Under all the circumstances, therefore,
we do not adopt the Trial Examiner's finding that Guthrie's state-
ments with respect to the direct presentation of grievances violated
Section 8 (a) (1) of the Act.
Order
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
The Sun Publishing Company of San Bernardino, California, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees, by discharging any of its employees or by discriminating
in any manner in regard to their hire or tenure of employment, or
any term or condition of employment.
(b) Advising its employees of the manner in which they can cancel
their membership in any labor organization; interrogating its em-
ployees as to whether they joined a labor organization and what the
labor organization had to offer; threatening its employees because of
their activities on behalf of a labor organization; and stating to its
employees that it would never sign a union contract.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all of such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Thomas L. Mullins and Joseph A. Bennett imme-
diate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights
and privileges.
(b) Make whole Thomas L. Mullins and Joseph A. Bennett for
any loss of pay they may have suffered by reason of the discrimina-
See Accurate Threaded Products Company , 90 NLRB 1364.
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 363
tion against them by payment to each of a sum of money equal to
the amount which he normally would have earned as wages from the
date of his discharge to the date of the Respondent's offer of rein-
statement, less his net earnings during said period, and in the case
of Mullins, less the 2 weeks' salary given him at the time he was
discharged.
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due under the
terms of this Order.
(d) Post at its plant in San Bernardino, California, copies of
the notice attached hereto marked "Appendix A." 6 Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by the Respondent's representa-
tives, be posted for a period of sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employ-
ees customarily are posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist any labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any and all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Thomas L. Mullins and Joseph A. Bennett
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of our discrimination
against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization except
to the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the amended Act. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
THE SUN COMPANY OF SAN BER-
NARDINO, CALIFORNIA,
Dated-------------------- By ---------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Thomas L Mullins (Case
No. 21-CA-1365) and upon a charge duly filed by Joseph A. Bennett (Case No.
21-CA-1507), the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional
Director for the Twenty-first Region (Los Angeles, California), issued his
consolidated amended complaint on August 28, 1952,' against The Sun Company
of San Bernardino, California, herein called Respondent, alleging that Respond-
ent had engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (a) (1) and (3) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the consolidated amended complaint, charges, notice of hearing, and
order of consolidation were duly served upon Respondent, Thomas L. Mullins,
herein called Mullins, and Joseph A. Bennett, herein called Bennett.
With respect to the unfair labor practices, the consolidated amended complaint
alleged in substance that Respondent (1) since in or about December 1951, by
means of certain stated conduct and acts interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the
Act; and (2) on or about March 6, 1952, discharged Mullins and on or about
August 23, 1952, discharged Bennett because each of them had engaged in
protected concerted activities and because of his membership and activities in
behalf of International Typographical Union.
i On the same day, the said Regional Director, pursuant to Section 102.33 (b) of the
Board's Rules and Regulations , Series 6, as amended, issued an order consolidating the
above-numbered cases
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 365
On September 5, 1952, Respondent duly filed an answer denying the commis-
sion of the alleged unfair labor practices.
Pursuant to notice, a hearing was held from September 8 through September
12, and on October 15 and 16, 1952, at San Bernardino, California, before the
undersigned , the duly designated Trial Examiner . The General Counsel and
Respondent were represented by counsel. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence pertinent to the
issues was afforded all parties
At the opening of the hearing, Respondent's counsel moved to dismiss Case
No. 21-CA-1507 upon the grounds that (1) Bennett presented no evidence to the
Regional Director prior to the issuance of the consolidated amended complaint
to support the allegations of the charge that his discharge was violative of the
Act, and (2) the Regional Director, prior to the issuance of the consolidated
amended complaint, made no preliminary investigation to ascertain whether
Bennett's charge had merit nor did he request Respondent to submit a statement
outlining its position with respect to the allegations of the charge filed by Bennett.
The motion was denied. At the conclusion of the taking of the evidence, the
General Counsel moved to conform the pleadings to the proof with respect to
minor inaccuracies. The motion was granted without objection. Respondent's
counsel then moved to dismiss the allegations of the consolidated amended
complaint with respect to Bennett. Decision thereon was reserved. The motion
is hereby denied. The parties were then advised that they might file briefs or
proposed findings of fact and conclusions of law, or both, with the undersigned
on or before November 5, 1952. The General Counsel submitted a brief, and
Respondent's counsel submitted a brief and also proposed findings of fact and
conclusions of law. These documents have been carefully considered by the
undersigned. Respondent's proposed findings and conclusions are disposed of in
accordance with the findings, conclusions, and recommendations hereinafter set
forth.
On November 18, Respondent's counsel filed with the undersigned a written
motion to reopen the record for the purpose of adducing (1) further evidence
with respect to the issue of the alleged discrimination in the award of work at
overtime rates between non-ITU and ITU members, and (2) evidence that Mullins
and Bennett, the charging parties herein, were mere "fronts" or "agents" for ITU,
a noncomplying union. In support of said motion, there were submitted a memo-
randum of law and an affidavit of John B. Lonergan, Esq., Respondent' s counsel,
verified November 17. On November 24, the General Counsel filed a memorandum
in opposition.
The motion is hereby denied. The record does not support the claim of surprise
with respect to the issue involving the alleged discriminatory allocation of over-
time work nor does the record support the contention that Respondent's counsel
was not afforded sufficient opportunity "to refute or explain any instance of
apparent difference in overtime hours worked by" ITU members and by non-ITU
members. Not only was the overtime issue litigated but sufficient opportunity
was granted Respondent's counsel to come forward with whatever evidence he
had "to refute or explain any apparent differences in overtime" allotment. Thus,
the record shows : (1) The pertinent payroll records were furnished the General
Counsel on September 11, 1952, (see page 418 of the stenographic transcript of
the hearing) and were introduced and received in evidence that day as General
Counsel's Exhibits Nos. 14 through 86 (see pages 418-429 of said transcript) ;
(2) at page 426 of said transcript counsel for the General Counsel stated that he
offered the aforesaid payroll records for the purpose of showing "there was dis-
crimination in the awarding of overtime work against union employees"; (3)
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the same day, September 11, the said payroll records were returned to Re-
spondent's counsel so that photostatic copies thereof could be made; (4) on Sep-
tember 12, at Respondent's request, the hearing was adjourned to October 15,
and the aforesaid payroll records remained in Respondent's counsel's possession
or control from September 11 until about a week prior to the reconvening of the
hearing on October 15, when they were redelivered to the General Counsel; (5)
on October 15, the following colloquy took place (see pages 791-2 of the steno-
graphic transcript) :
(Mr. LoNERGAN, Respondelnt's counsel) . . . I think that Mr. Reiner
(counsel for the General Counsel), should specify the individuals whom
[he] claims have been discriminated against.
TRIAL EXAMINER MYERS: He (Mr. Reiner) claims that all the union
men were, or a great majority of them were discriminated against with re-
spect to the overtime ; isn't that right?
Mr. REINER: It is our contention, that is why I put the records in.
Mr. LONERCAN : In order to answer that, I now have to take the records
and go over them. We know who the union members are.
TRIAL EXAMINER MYERS : What is your pleasure?
Mr. LONERGAN : It will take, I suppose, several hours to go over the list.
TRIAL EXAMINER MYERS: Do you want to go over until tomorrow
morning?
Mr. LoNERGAN: Yes, I would like to. . . . (whereupon the hearing was
adjourned at 2 p. in., October 15, until 10 a. in. on October 16) ; and
(6) on October 16, Respondent's counsel offered oral testimony (through Me-
chanical Superintendent Nickelay) and documentary evidence (Respondent's
Exhibits 2 and 3) with respect to the overtime discrimination issue.
Regarding that portion of the motion addressed to the purported "fronting"
by Mullins and Bennett for the ITU, the cases hold that questions of that nature
are irrelevant where, as here, the charge is confined to allegations of discrimi-
nation against the charging parties. Evidence respecting purported "fronting"
becomes relevant only in cases where individuals have filed petitions, under
Section 9 (c) of the Act, seeking to have a noncomplying union certified as the
collective-bargaining representative, or have filed charges alleging that the
employer has refused to bargain with such a union' This is because there, as
against the immediate and direct interest of the union in the relief sought, the
individual's interest in such relief is so remote and unsubstantial as to make it
clear that the real party in interest is the noncomplying union.
In cases like the one here presented the impact of the proceeding upon the
welfare of the individuals involved is direct and substantial, for the stake is
their livelihood while "any benefit occurring to the [ITU] is remote and insub-
stantial."' With the charging parties herein having this vital interest in the
proceeding, it would virtually nullify the rights which the Act guarantees them
as individuals to deny them redress on the theory that they were not seeking
redress on their own behalf but on behalf of a union whose interest in such a
situation was relatively minute. Such a result would indeed "sublimit the agent
above the principal, to make the tail wag the dog."' Accordingly, in cases like
the instant one, where the charging party seeks relief for discrimination allegedly
2 Campbell Soup Co., 76 NLRB 950; Oppenheim Collins c6 Co., 79 NLRB 435; White v,
Herzog, 80 F. Supp. 407 (D. D. C.).
a N. L. R B. v. Clausen, 188 F. 2d 439, 443 (C. A. 3).
N. L. R. B . v. Augusta Chemical Co., 187 F . 2d 63, 64 (C. A. 5).
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 367
practiced against him, it would serve no useful purpose to go into the question
of whether that individual might also be "fronting" for the ITU a
Furthermore, the court in the Augusta Chemical case, recognizing that the
assumption that a discharged employee who filed a charge was seeking to vindicate
his own interest was valid even though the union had aided him. As the court
said at page 64: ". . . granted that the disqualified union was active in assist-
ing, indeed, in directing, the employees in preparing the charges, it does not
follow that the employes, by accepting that assistance, disqualified themselves.
The saying, that a man cannot touch pitch and not be defiled, may not be
applied."
Respondent relies heavily upon the case of N. L. R. B. v. Alside Incorporated,
192 F. 2d 678 (C. A. 6) in support of the "fronting" aspect of its motion. The
factors which the Sixth Circuit regarded as sufficient to differentiate the Alside
case from the Clausen and Augusta Chemical cases and to hold the charging party
in the case before it as a "front" for the noncomplying union were : (1) "The
charges by Worley are not limited to his individual grievance"; (2) by listing
the names of other employes as well as his own, the "basis of the charges were
exactly the same as they would have been if they had been made by the Union
and signed by Worley as its President"; and (3) since Worley was the president
of the noncomplying union, and was its chief, active protagonist before and after
filing of the charge, "it stretches credulity to the breaking point to believe that
Worley did not ... file the charges as the representative of the Union." The
purported "fronting" facts present in the Alside case are not present here and
hence the Alside case is inapposite.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS ACTIVITIES OF RESPONDENT
The Sun Company of San Bernardino, California, is a California corporation
having its principal place of business in San Bernardino, California, where it
publishes and distributes The San Bernardino Daily Sun, The Evening Telegram
and The Evening Index, and The Sun Telegram. The daily circulation of the
aforesaid newspapers is in excess of 43,000 copies.
Respondent avails itself of the United Press and Associated Press services
and it also uses syndicated cartoons and feature columns. A portion of Re-
spondent's annual income is derived from the following : In excess of $2,000
from advertisements placed directly by out-of-State advertisers ; approximately
$1,000 from advertisements of nationally known or nationally advertised prod-
ucts placed by California advertisers ; and approximately $135,000 from adver-
tisements of nationally known products. Respondent's annual overall gross
revenue from advertisements is in excess of $1,000,000.
Upon the above undisputed facts and upon the record as a whole, the under-
signed finds that Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Typographical Union is a labor organization admitting to
membership employees of Respondent.
5 See N. L. R. B. v. Globe Wireless, Ltd., 193 F . 2d 748 (C. A. 9).
Accord : N. L. R. B. v. Globe Wireless, Ltd., supra.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In December 1951, International Typographical Union, herein called ITU,
commenced an organizational drive among Respondent's composing room em-
ployees.' This activity soon came to Respondent's knowledge. Thus, it is
not disputed that sometime during the aforesaid month, Edwin T. Thompson
and Dale Overton' had a discussion regarding the union activities of the em-
ployees. Thompson testified that during the discussion, Overton stated, "This
union business is going to cause you guys a bunch of grief." Overton, on the
other hand, testified that he said, "This union business was going to cause me
a lot of grief, because we would have the two split factors (sic) on the night
side,' and I don't expect the cooperation that I had before." The undersigned
was favorably impressed with the candor and straightforward manner with
which Thompson testified whereas Overton's demeanor while on the witness stand
evidenced to the undersigned that Overton was withholding the true facts re-
garding the matters about which he was being questioned. Under the circum-
stances, the undersigned credits Thompson's version of the aforementioned con-
versation and finds that Overton made the statements which Thompson attributed
to him.
On January 10, 1952, ITU held a meeting at the San Bernardino, California,
Labor Temple which was attended by 14 composing room employees of Respond-
ent, all of whom, either prior to or at said meeting, made application for ITU
membership. At least 10 of said applicants worked on the night shift.
Mechanical Superintendent Ralph O. Nickolay testified, and the undersigned
finds, that sometime between January 10 and January 24, the day Respondent
had a meeting with its composing room employees, the details of which meeting-
are discussed below, he told his stepson, Overton, that in his opinion James A.
Guthrie, Respondent's editor and president, "wouldn't sign a contract with the
Typographical Union" and that Overton should pass on that information to
the employees who inquired as to Respondent's position with respect to the
employees' union activities and that sometime in January, he told employee
Jenkins "the same thing" he had told Overton.
According to the credible and undenied testimony of Harold A. Wright, a
former composing room employee and a nephew by marriage to Nickolay, the
latter asked him, several days prior to January 24, whether he had joined the
ITU and that he replied in the negative; that he then asked Nickolay if Re-
spondent "cared" if the employees carried ITU cards and at the same time
worked at Respondent's plant; and that Nickolay replied that Respondent pre-
ferred that they did not.
Harold I. Holbo credibly testified that on January 21, Overton said to him,
"Holbo, will you tell the boys in the lunchroom that Mr. Guthrie wants them
to know that he would never permit the shop to become organized by the unions
or never sign a union contract" and that he delivered Overton's message to his
fellow workers. Holbo further credibly testified that about 10 or 15 minutes
4 Some years previously, ITU attempted a similar campaign which, for reasons not
disclosed by the record, was unsuccessful.
' Upon the entire record, the undersigned finds, contrary to Respondent 's contention,
that Overton was from about January 1947, when he assumed the duties as night foreman
of the composing room, until on or about August 1, 1952, when he was relieved of those
duties at his own request, a supervisor within the meaning of the Act and that his conduct
during said period was attributable to Respondent.
"Night side" means "night shift."
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 369
after the aforesaid conversation with Overton, Nickolay came to him and, during
the conversation which ensued between them, said ;
Mr. Guthrie wants you boys to know that he won't permit this to become
a union shop, he will never sign a union contract. . . . Furthermore, if
the boys are taking out cards, they had better be mighty careful of them,
because if they do, they can look someplace else for a job.
Charles E. Thomeas credibly testified, and without contradiction, that on
January 21, Overton told him that he had been instructed by Guthrie to inform
the employees that, regardless of the employees' union sympathies, Guthrie
would not sign a union contract.
According to John J. Leland's credible and undenied testimony, Nickolay
asked him, sometime between January 10 and January 24, whether the union
representative had been to see him; that when he replied in the affirmative,
Nickolay inquired what the representative had to offer ; and that when he
replied , "nothing special ," Nickolay walked away.
Lester Waters testified credibly and without contradiction that the night fol-
lowing the aforementioned ITU meeting at the Labor Temple, Overton told
him to be careful about signing an ITU application card because ITU might
call a strike.
Mullins credibly testified that 2 or 3 days prior to the January 24 meeting,
Overton said to him, "Tom, I don't want you to think this is my idea, but
Mr. Guthrie told me to tell all of you . . . that this shop would never be union
under any condition, no matter how many men signed up with the ITU."
At the meeting of January 24, between management and the composing room
employees, Guthrie, in no uncertain terms, expressed his disapproval of the ITU
and of its attempts to unionize Respondent's employees. During the course of
his remarks, Guthrie told the employees that it had been called to his atten-
tion that certain rumors were afloat to the effect that he favored the employees
joining the ITU and that he was negotiating a contract with that Union; that
he wanted the employees to know that such rumors were false ; that the em-
ployees need not join a union in order to have their grievances presented to man-
agement, for management, as in the past, would continue to process grievances
with the individual employee involved or with any group of employees ; and that
those employees who had signed ITU authorization cards could cancel such au-
thorizations by merely writing the ITU or its representative requesting that
such authorizations be canceled. Several times during the course of his re-
marks, Guthrie stated, "I am prohibited by law from telling you that I will
never sign a contract with the Typographical Union."
After he had concluded his preliminary remarks, Guthrie asked those present
to express their views regarding the unionization of the plant. Some employees
spoke for and others spoke against such activity. Nickolay expressed his dis-
like for the ITU by informing the employees that the officers of the ITU were a
"bunch of rats."
According to Bennett's undenied and credible testimony, Nickolay said to
him, about the time of the January 24 meeting, "I don't care how many of you
men join the union ... Don't you know that this will never be a union shop?
... If you don't like it here and you don't like the conditions ... you can quit
and go elsewhere ... this will never be a union shop."
Upon the entire record in the case, the undersigned finds that by (1) Guthrie,
at the January 24 meeting, advising the employees the manner by which they
could cancel their ITU authorizations ; (2) Guthrie's further remarks at that
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting that the employees needed no union to represent them for management
intended to continue its practice of dealing with the employees individually or
with groups of employees concerning grievances; (3) Overton's statements to
Thompson in December 1951; (4) Overton's statements to Holbo on January
21; (5) Overton's January 21 statements to Thomas; (6) Overton's January 24
statements to Mullins; (7) Nickolay's statements to Jenkins; (8) Nickolay's
questioning Wright regarding Wright's ITU membership; (9) Nickolay' s Janu-
ary 21 statements to Holbo; (10) Nickolay's January statements to Leland; and
(11) Nickolay's January statements to Bennett, Respondent violated Section 8
(a) (1) of the Act. In addition to the above-violative conduct, Respondent,
during the first 9 months of 1952, further violated Section 8 (a) (1) of the Act
by discriminating against ITU adherents and sympathizers in the allotment of
work at overtime rates.
B. The discriminatory discharges of Mullins and Bennett
Mullins was first hired by Respondent on September 8, 1947, as an apprentice
under the Veterans Administration's GI training program at the hourly rate
of 65 cents. Because Mullins' work continued satisfactorily he received a wage
increase each 6 months until he became a journeyman on September 8, 1951, at
the rate of $2 56 per hour.
In January 1952, Mullins signed an ITU application card and attended its
January 10 meeting. He also attended the January 24 meeting of management
and composing room employees.
According to Mullins' undenied and credible testimony, he was considering, in
January 1952, making certain substantial purchases of household furniture on a
time-payment plan ; that before committing himself to such purchases, he thought
it advisable to ascertain whether his job with Respondent was secure ; that when
he inquired of Overton, in January, regarding the security of his job, Overton
stated, to quote Mullins, "He told me as long as he was foreman I needn't worry
about a job. My work as far as he was concerned was good" ; and that when, on
several other occasions, he had inquired of Overton whether his work was satis-
factory Overton assured him that it was.
Mullins further credibly and without contradiction testified that about 4 days
after the management-composing room employees January 24 meeting, Ralph
Davis, Sr., Respondent's associate editor and directing head of its editorial and
mechanical departments, came to where he was working in the makeup depart-
ment and said, "Tom, I want to commend you on the job you are doing on the
county pages. They tell me upstairs that you are doing a bang-up job." io
Holbo credibly and without contradiction testified that about 6 weeks or 2
months after Mullins had started his employment with Respondent, Overton
stated to him that Mullins' work was satisfactory because Mullins was getting
the work out in a hurry, despite the fact that Mullins was new on the job; and
that about a year or two before the hearing herein, Overton said to him, "Tom
Mullins is a very fine make-up man. He does his work as well as anybody in the
plant."
Regarding a conversation he had with Overton in the fall of 1951, wherein
Mullins' workmanship was mentioned, Thompson credibly and without contra-
diction testified that Overton asked him, "Do you know who is the best man on
the floor?"; that when he replied that he thought Les Waters was, Overton said,
"No, Tom Mullins [is]. Tom can put more pages together than anybody on that
10 For at least 6 months prior to his discharge, Mullins worked in this department.
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 371
floor" ; and that he had heard Overton "make various statements like that" about
Mullins on other occasions.
Nickolay and Overton each testified at great length respecting Mullins' poor
workmanship ; with respect to the patience with which each tried to teach Mullins
the trade; and to the fact that despite their efforts, and the efforts of Mullins'
coworkers whom they had asked to assist and instruct Mullins, Mullins continued
making serious errors. Nickolay further testified that Mullins made mistakes
"unconsciously" because of his inability to follow the makeup dummies or follow
the instructions written on those dummies. The only errors, however, which
Nickolay or Overton referred to admittedly occurred prior to Mullins becoming
a journeyman on September 8, 1951. The record, in fact, is devoid of any credible
evidence that Mullins committed any error whatsoever from that date until the
night of March 5, when he admittedly placed over a story regarding a proposed
water project plan the heading, "Orange Festival Clarification Told on Water
Project" instead of the heading, "Clarification Told on Water Project." u
Respondent contended at the hearing and in its brief that Mullins was not
discharged for the reasons alleged in the complaint but was discharged because
of the numerous errors he had committed throughout his entire employment
with Respondent and that when he committed the error on March 5, it had no
alternative but to dispense with his services. It further contended that there
is no evidence in the record that it had knowledge of Mullins' ITU activity
or membership at the time of his discharge, and that without such knowledge,
there is no basis for imputing a discriminating motive to its action against
Mullins.
With respect to the second contention, the credible evidence clearly indicates
that at the time of Mullins' discharge Respondent was well aware that he was
an adherent of the ITU. This conclusion becomes inescapable when considera-
tion is given to Thompson's credible and uncontroverted testimony that at the
very moment Nickolay was informing Mullins of his discharge, Overton came
to Thompson and said, "This union business is getting nasty. I'm going to
resign as foreman and take a job as operator, because they are firing a guy right
now," and to Leonard Surdam's credible testimony regarding a conversation he
had with Overton the night Mullins was discharged wherein Surdam quotes Over-
ton as saying, "Sure is too bad about Tom Mullins-Leonard, you guys should
have expected things like this to happen when you st4rted this [union activity]."
Even if the evidence did not support a finding of Respondent's actual knowledge
of Mullins' ITU activity prior to, or at the time of, his discharge, it is reasonable
to conclude from the fact that where union activities occur, as they did here,
among employees in a very small plant and mainly among employees on a shift
with a particularly small number of employees, that information of such activi-
ties and the identity of those participating therein came to the notice of manage-
21 "Orange Festival," which Mullins erroneously placed on the aforesaid heading, was
part of the "head" which should have been used on the "Santa Fe Day" story appearing
on the same page with the aforesaid water project plan story . The "Santa Fe Day" story
"head" thus erroneously read "Santa Fe Railway Day Scheduled at," instead of reading,
"Santa Fe Railway Day at Orange Festival ." While admitting making the error in the
"head" of the proposed water project plan story, Mullins denied making the error in the
"Santa Fe Day " heading. Overton testified that when he questioned Mullins on March 6
about the makeup of the page, Mullins admitted that he made up the entire page and thus
Mullins must have made both errors . Mullins was a credible witness and therefore the
undersigned finds that Mullins did not make both errors ; that Respondent knew on March
6 that Mullins only made the error with respect to the water project plan story ; and that
Respondent took no steps to ascertain who had made the other error nor did it take any
disciplinary or other action against that erroring employee.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment without any undue delay.12 This is especially true where, as here, super-
visors discussed union activities with nonsupervisory employees.
In view of Respondent's unconceded anti-ITU prejudices,' coupled with the
unconvincing and unreliable testimony of Nickolay and Overton for the reasons
for Mullins' discharge, the undersigned is convinced, and finds, that Mullins'
ITU activity was the sole reason for his discharge, and that Respondent seized
upon Mullins ' March 5 mistake as a pretext to rid the plant of an ITU adherent.
This finding is supported by the credible testimony of Mullins who testified that
on March 6, shortly after he had been informed by Nickolay that he had been
discharged , Overton and he had a conversation wherein the following was said :
He (Overton) said, "Tom, I am sorry that this has happened. I didn't
have anything to do with it. It was taken out of my hands. It came from
upstairs. Believe me , I am sorry."
I asked him . . . "What is the reason that I am being fired, Dale? Is
it because of the mistake I made or is it because I belong to the Union?"
He said it was because I was a union member.
r a * a s r s
He told me that if I ever needed a recommendation for anywhere, to
be sure to call him anytime of the day or night, at his home or at work or
wherever he may be, he would give me the highest recommendation that a
man could give another.
The above finding that Mullins' discharge was violative of the Act is further
supported by Overton's March 6 statements to Thompson and Surdam wherein
Overton clearly indicated that Mullins' discharge was due to ITU's activity
in the plant.
Respondent in its effort to show that it had no discriminatory motive when
it terminated Mullins' employment points to the fact that other employees, both
prior to and after Mullins' dismissal , had been discharged for making errors
in their work. In support thereof it relies on the fact that on or about October
10, 1952, J. Carl Griswold, who had been employed in Respondent's employ
for about 4 or 5 weeks, was discharged because he was "not competent to do
the" ad room work to which he had been assigned and to the fact that from 1946
until 1950, about 12 employees had been discharged for various causes including
"making too many mistakes, letting too many mistakes get by, careless work, not
being able to come to work on time [and] drinking." This evidence, based
solely upon Nickolay's conclusive testimony, avails Respondent nought for ad-
mittedly Respondent had in its possession certain records which would have
revealed the number of employees discharged for "making too many mistakes" ;
for "letting too many mistakes get by"; for "careless work" ; for reporting to
work late ; and for drinking. In addition, Respondent's records, if they had
been produced, would have revealed the length of service of each of said dis-
chargees so that a comparison could have been made between their services
with that of Mullins'. Furthermore, the testimony of Nickolay does not over-
come the positive and credible evidence, both documentary and otherwise, which
discloses that prior to and since Mullins' discharge a great many errors appeared
in Respondent's newspapers which were as serious and more ridiculous than
11 See Angwell Curtain Company , Inc. v. N. L. R. B., 28 LRRM 1085 (C. A. 7) ; N. L.
R. B. v. Abbott Worsted Mills, Inc, 127 F. 2d 438 (C. A. 1) ; Quest-Shon Mark Brassiere
Co., 80 NLRB 1149; Kallaher and Mee, Inc., 87 NLRB 410; F. W. Woolworth Company,
90 NLRB 289; N. L R. B. v. Link-Belt, Inc., 311 U. S. 584 ; N. L. R. B. v. United Distillers
of America, Ltd., 188 F. 2d 353 (C. A. 4).
11 The record clearly indicates that Davis , who instructed Nickolay to discharge Mullins,
shared these prejudices.
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 373
those committed by Mullins and that Respondent did not even reprimand the
person or persons making the said errors, except to suggest that the erroring
employee should "watch out" for errors.
Bennett was employed continuously by Respondent as a composing room em-
ployee from about August 28, 1945, until his discharge on August 23, 1952.
Bennett signed an application for ITU membership at the January 10 meeting
in the Labor Temple and became a provisional member on the following March
24. He also attended the January 24 management-composing room employees
meeting. At the latter meeting, Bennett during the so-called discussion period
said, in part :
I [am] in favor of the union and ... I [feel] that the union [offers]
security for me. It [gives] me the right to choose my representative to
represent me in matters and negotiate, and I [feel] that the individual had
that right, that it was granted to us by the laws . . . after all, . . . this
is a democracy . . . as far as the red tinge 14 was concerned , I [am] willing
to compare my war record and my Army record with anybody in the
room....
As found above, about the time of the January 24 meeting, Nickolay said to
Bennett, "I don't care how many of you men join the union . . . Don't you know
that this will never be a union shop? . . . If you don't like it here and you don't
like the conditions . . . you can quit and go elsewhere . . . This will never be
a union shop."
On or about January 28, Davis came to where Bennett was working and,
according to the latter's credible and uncoutroverted testimony, the following
ensued :
He (Davis) said, "What is the matter? What are the fellows mad about?
What seems to be the trouble with you fellows?" I said to him, "Nobody
is mad at anybody. I am not mad at anything or anybody, Mr. Davis." He
said, "Well that is O. K. We ought not to be mad about anything with
anyone."
I said , "I am just looking out for my future security, and that is the way
I feel and the way I see things."
And he wanted to know what this was all about, and I came back and
told him my idea of it .. .
And he said, "I understand the way you feel. I don't want to be mad
with anyone who joined the Union or try to influence anybody." I told him
we had no intention of doing any harm or hurt to anyone. He said, "Well,
I don 't believe you have anything to gain , I don't think they can help you
at all". . . . I said I felt that they had.
During the period that Overton was night foreman of the composing room,
be normally did not work Saturday or Sunday nights. The duty of handling
the copy and the other materials sent to the composing room from the editorial
department normally was handled by Cecil Kirk on Sunday nights and on
Saturday nights by Bennett and Lester Waters. However, when Overton was
replaced on or about August 5, 1952,15 by Ward E. Arthurs, the latter's regular
night off was Monday nights.
During the first week that Arthurs was night foreman , he asked Bennett to
cooperate with him and to give him suggestions so that he could make "the night
14 The "red tinge" comment was in response to a statement made at the meeting that it
bad been rumored that the ITU had a "red tinge" attached to it.
16 Arthurs was made night shift foreman on or about August 1 but did not take over until
August 5.
257965-54-vol 103-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Job a lot easier for the men " and Bennett assured him that he could count on
his full cooperation.
On Monday night, August 11, Bennett and Leo Roach, the day foreman of the
composing room who was "breaking in" Arthurs as foreman , distributed the copy.
The following Monday night, August 18, Arthurs reported at the plant at the
beginning of the night shift and assigned Tom Smith , who had been a composing
room employee with Respondent for only about a year , to handle the copy that
night and then left the plant. Arthurs returned just before the bulk of the copy
came into the composing room at which time Bennett asked Arthurs whether
he had assigned Smith to distribute the copy. When Arthurs replied in the
affirmative , Bennett asked why he had not been informed that Smith was to
do the distributing since he had usually performed that job on the foreman's
night off. Arthurs responded in a "sarcastical " manner, "We wanted to get
this [job ] done" and if Bennett did not like the way the plant was being run
he could quit . Whereupon Bennett stated , "I just wanted to ask you what was
going on because I didn't understand it."
On Friday night, August 22, Bennett informed Arthurs that Charles Waller
had asked him whether he would work for Waller the following night and wanted
to know if Arthurs had any objections to him doing so. In response to Arthurs'
inquiry whether he could operate the teletype, Bennett assured him that he
could. Bennett then asked Arthurs who would be on the makeup job the follow-
ing night and Arthurs "nastily" replied that Dick Coudrey would be assigned
to that job. Bennett then stated that he just wanted to be sure that Arthurs
knew that Harold Wright, who had been working on makeup on Saturday nights,
had quit his job and that Arthurs would have to secure someone to take Wright's
place. A discussion between Arthurs and Bennett then ensued wherein Bennett
maintained that the night-shift men were being discriminated against relative
to overtime work and then he proceeded to tell Arthurs that instead of having
Coudrey, a part-time employee, work the following night a night-shift employee
should have been called in. To which remark Arthurs replied, "I am taking
my orders from Mr. Davis If you don't like it go see him or you can quit."
According to Bennett's credible testimony, the following then took place, after
some discussion was had regarding Bennett's dislike of going to Davis "over
the bead" of Nickolay or anyone else:
He (Arthurs) really got very angry and perturbed at that time and turned
to me and said, "Well, we are going to straighten this night side out. You
fellows have been violating coffee time, you are taking too much time at
lunch. You have been leaving very early. We are going to clamp down
on you fellows and we are going to straighten you out. Mr. Davis is going
to take care of you personally Monday."
I came back to him with, "I am not afraid to talk to Mr. Davis. I can
talk to him just the same as I can talk to you. I mean I haven't any fear
so far of the man."
He said, "Now wait, don't get smart with me. I'll fix you." And
I said, "Just a minute, Ward. Be careful. I served in the Army and
I was overseas . I killed a couple of men in service of my country that
hadn't done any hurt to me, but they were on the other side. Before you
start to fix me, just be careful. Ward, I have always believed in the golden
rule, do unto others as you would have others do unto you , and I have
always lived the rules of live and let live . . . I have never harmed or done
any damage to any man for personal gain or to get ahead myself."
The next day, August 23, when Bennett reported to work Waller's shift,
Nickolay informed Bennett that Davis wanted to see him. The two of them
THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 375
then proceeded to Davis' office. Davis opened the conversation by stating to
Bennett, "I hear that you had a run-in with Ward Arthurs last night." When
Bennett admitted that he and Arthurs had a discussion, Davis said, "What is
this thing about you killing a couple of men?" Bennett replied, "Why, Mr.
Davis, there was an awful lot said before that was said. We had talked quite
a bit before that, and [by] that time the discussion was getting pretty personal."
Then Davis said, "Well, I don't want to hear the rest of that. I just want to
hear what you had to say about you killing a couple of men." Bennett replied,
"Well, Mr. Davis, I think you must have a distorted view of this thing, if that
is all you want to hear. Because there was an awful lot said other than that."
Davis then said, "I have no distorted view. I just want to hear what you said
about killing a couple of men." Then Bennett told Davis that he had stated to
Arthurs, "I was in the Army, that I had fought for my country, and that I had
killed a couple of men when overseas in defense of my country. That before
he started to fix me, that he had better be careful." Whereupon, Davis said,
"Well, your attitude has been wrong for some time now. You are belligerent.
We have leaned over backwards for you. In view of this I am going to have to
let you go." When Bennett inquired, "You mean that I am through right now,"
Davis said, "That is right." To Bennett's entreaty that Davis should hear the
whole story of what took place the night before between him and Arthurs before
discharging him, Davis replied, "Well, I don't want to hear any more."
At the hearing and in its brief, Respondent contended that Bennett was dis-
charged for "threatening his foreman," Arthurs. The credible evidence, as sum-
marized above,16 does not support this contention.
Upon the record as a whole, the undersigned is convinced and finds that
Bennett was discharged because of his ITU membership and activities and not
for the reason advanced by Respondent. Davis' refusal to hear Bennett's version
of the Bennett-Arthurs argument clearly supports this finding for it is inconceiv-
able to the undersigned that Respondent, a publisher of an outstanding newspaper,
absent an anti-ITU antipathy , would have summarily dismissed an experienced
employee of about 7 years' standing without first hearing that employee's version
of the argument. In N. L. R. B. v. May Department Stores Co., 154 F. 2d 533 (C. A.
8), the court said, at page 538, regarding a situation similar to the one presented
here, that there is a "broad scope of inference open . . . on questions of motive
and discrimination, where the evidence indicates a desire to thwart or nullify
unionizing efforts, either generally or as to a particular employee-organization."
And where, as here, the employer has shown strong opposition of its employees'
unionization, "a very convincing case of discharge for cause would have to be
made to make unreasonable a conclusion that [the] discharge was because of
union affiliation." 17
'- The summary of the events of August 22 and 23 are based on Bennett's testimony.
Bennett's demeanor while on the witness stand and the candid manner with which he
testified, both on direct and on cross-examination, indicated that he was a truthful
witness. On the other hand, Arthurs' witness-stand demeanor did not so impress the
undersigned. Moreover, Arthurs' testimony regarding the crucial events of August 22
was adduced through leading questions and therefore little weight has been accorded it.
Davis did not testify because he was critically ill at the time of the hearing. Nickolay's
version of what took place in Davis' office on August 23 is not credited, because his hesi-
tancy before answering the question propounded to him regarding this incident showed
that he was trying to distinguish in his own mind what he had heard Arthurs and Bennett
testify to and the testimony which he had rehearsed prior to taking the witness stand.
The undersigned does not impute that Respondent's counsel or any of Nickolay' s superiors
had anything to do with Nickolay's "rehearsed testimony" for the undersigned has the
highest respect for the honesty and integrity of Respondent's counsel and was favorably
impressed with the sincere and straightforward manner in which Respondent' s president
and editor, James A. Guthrie, testified.
17Dannen Grain and Milling Co v. N. L. R. B., 130 F. 321, 328 (C. A. 8).
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The further contention of Respondent that the General Counsel did not prove
that Respondent had knowledge, prior to Bennett's discharge, that Bennett was
a member or active on behalf of ITU is belied by the record. At the January
24 management-composing room employees meeting, Bennett openly stated, "I
was in favor of the [ITU] and that I felt that the [ITU] offered" me security.
And on or about January 28, in his talk with Davis, Bennett clearly indicated his
adherence to and support of the ITU.
Upon the entire record in the case, the undersigned finds that Respondent dis-
charged Mullins and Bennett in violation of Section 8 (a) (3) and (1) of the
Act, thereby interfering with, restraining, and coercing 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 Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1) and (3) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and
tenure of employment and the terms and conditions of employment of Thomas
L. Mullins and Joseph A. Bennett, the undersigned will recommend that Re-
spondent offer to each of them immediate and full reinstatement to his former or
substantially equivalent position,'s without prejudice to his seniority and other
rights and privileges. The undersigned will also recommend that Respondent
make Mullins and Bennett whole for any loss of pay they may have suffered by
reason of Respondent's discrimination against them, by payment to each of them
a sum of money equal to the amount he normally would have earned as wages
from the date of the discrimination, to the date of the Respondent's offer of
reinstatement, less their net earnings during that period 1° Loss of pay shall be
paid in accordance with the formula enunciated by the Board in F. W. Wool-
worth Company, 90 NLRB 289. At the time Mullins was discharged he was given
2 weeks salary in lieu of notice of termination. Credit for this sum should be
allowed Respondent.
The unfair labor practices found to have been engaged in by Respondent are
of such a character and scope that in order to insure the emloyees here involved
their full rights guaranteed by the Act, it will be recommended that Respondent
cease and desist from in any manner interfering with, restraining, and coercing
its employees in their right to self-organization.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
the undersigned makes the following :
IS See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
19 See Crossett Lumber Co., 8 NLRB 440.
SYRACUSE COLOR PRESS, INC. 377
CONCLUSIONS OF LAw
1. International Typographical Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of Thomas L. Mullins and Joseph A. Ben-
nett, thereby discouraging membership in International Typographical Union,
Respondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (a) (3) of the Act.
3. By interrogating its employees regarding their ITU sympathies, by making
other anti-ITU statements, and engaging in various anti-ITU conduct, thereby
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices, within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
SYRACUSE COLOR PRESS INC. and INTERNATIONAL MAILERS UNION.
Cases Nos. 3-RZ"-565 and 3-RC-117. March 6, 1953
Decision and Order
On June 5, 1952, Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further recom-
mended that the Board set aside the election which was held on March
31, 1951. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
The Respondent's request for oral argument before the Board is
hereby denied, as the record, including the exceptions and briefs ade-
quately present the issues and the positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board ha§ considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
103 NLRB No. 26.