Times Publishing Company

National Labor Relations Board - Board Decisions

Jul 18, 1939

13 N.L.R.B. 652 (N.L.R.B. 1939)

In the Matter of TIMES PIIBUSHING COMPANY and THE NEWSPAPER
GUILD OF DETROIT
Case No. C-746.-Decided July I8, 1939
Newspaper Publishing Industry-Interference , Restraint , and Coercion:
charges of, not sustained-Discrimination : charges of , not sustained-Cam-
plaint: dismissed.
Mr. Charles F. McErlean, for the Board.
Butzel, Levin cC Winston, by Mr. Isadore Levin and Mr. Harry
L. Winston, of Detroit, Mich., for the respondent.
Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Isserman, of
Newark, N. J., for the Guild.
Mr. Richard H. Meigs and Mr. Louis Newman, of counsel to the
Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by The Newspaper
Guild of Detroit, herein called the Guild, the National Labor Rela-
tions Board, herein called the Board, by Frank H. Bowen, Regional
Director for the Seventh Region (Detroit, Michigan), issued its com-
plaint dated April 11, 1938, against The Times Publishing Company,'
Detroit, Michigan, 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, accom-
panied by notice of hearing, were duly served upon the respondent
and the Guild.
The complaint alleged, in substance, that on or about October 5,
1937, the respondent discharged Leon Evarts, an employee, because
he joined and assisted the Guild, thereby discriminating in regard
to his hire and tenure of employment and discouraging membership
in the Guild and, further, that the respondent by various other acts
intimidated, restrained, and coerced its employees in their exercise of
' The respondent was named in the complaint as Times Publishing Company.
13 N. L. R. B., No. 73.
652
TIMES PUBLISHING COMPANY 653
the rights guaranteed in Section 7 of the Act. On April 30, 1938,
the respondent filed with the Regional Director motions to dismiss
the entire complaint and to strike parts thereof on various grounds.
The respondent at the same time filed an answer reserving the objec-
tions raised in the motions to dismiss and to strike, admitting the
purchase of a large part of its raw materials and the distribution
of a portion of its newspapers outside the State of Michigan, and
denying the other material allegations of the complaint except that
Evarts had been discharged on or about October 5, 1937. The
answer also alleged affirmatively that "said Leon Evarts was dis-
charged because of a reduction in business, and because his relative
capacity, qualifications, and efficiency did not warrant his retention."
Pursuant to notice, a hearing was held on May 2, 3, 4, and 6, 1938,
at Detroit, Michigan, before Mapes Davidson, 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 on the issues was afforded all parties.
At the opening of the hearing and again at the close of the Board's
case and at the close of the hearing, the respondent renewed its mo-
tions to dismiss the complaint and to strike certain portions thereof,
adding as a further ground in the last two instances the insufficiency
of the evidence to sustain the allegations in the complaint. The Trial
Examiner denied these motions. During the course of the hearing
the Trial Examiner made several 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 error was
committed. The rulings, including denial of the motions to dismiss,
are hereby affirmed. Regardless of the action subsequently taken by
the Board in its decision, a Trial Examiner may deny a motion to
dismiss made during the course of a hearing or reserve decision thereon
for his Intermediate Report after consideration by him of the entire
record.
On May 16, 1938, the respondent filed a request for specific findings
of fact to be made by the Trial Examiner in his Intermediate Report.
Thereafter, on June 24, 1938, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon the respondent and the
Guild, finding that the respondent had engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act. On July 13,1938, the respondent
filed exceptions to the Intermediate Report and the record. On July
20, 1938, the respondent filed with the Board a motion to take further
evidence in the proceeding. The Board denied this motion. Pursuant
to notice, oral argument was had before the Board at Washington,
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. C., on July 26, 1938. The respondent and the Guild were repre-
sented by counsel and participated in the argument.
By order dated February 8, 1939, the Board directed that the record
be reopened for the taking of further evidence, that a further hearing
be held, and that the proceeding be remanded to the Regional Director
for the Seventh Region for the purpose of conducting such further
hearing. On February 27, 1939, the Guild filed with the Board a
motion to vacate the order of February 8, 1939, or, in the alternative,
to modify the order so as to limit the scope of the further hearing.
This motion was denied by the Board. Subsequently, by order dated
July 11, 1939, the Board on its own motion vacated the order of
February 8, 1939.
The Board has considered the exceptions of the respondent to the
Intermediate Report and hereby sustains them in so far as they
are directed at the Trial Examiner's findings and conclusions that the
respondent engaged in unfair labor practices.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a corporation organized and existing under the
laws of the State of Michigan. It owns and publishes the Detroit
Times, a daily and Sunday newspaper, and has its principal office
and printing plant in Detroit, Michigan.
Substantially all of the newsprint and ink used by the respondent
is shippedi to its plant in Detroit from points outside the State of
Michigan. Equipment and machinery, of which only a negligible
amount has been purchased by the respondent in the past 5 years,
are also obtained from outside the State. The newsprint required
by the respondent in its business varies from 500 to 800 tons per week.
The average daily circulation of the Detroit Times is approximately
308,489 copies, and its average Sunday circulation is approximately
407,199 copies. Approximately 1.3 per cent of the daily editions and
approximately 12.5 per cent of the Sunday editions are distributed out-
side the State of Michigan. Distribution by mail is effected to prac-
tically every part of the country.
The respondent subscribes to and receives material from various news,
feature and photographic services which collect and forward news,
features and photographs from all parts of the country for publica-
tion in the Detroit Times. The respondent, in turn, makes available
to these services, and particularly the International News Service, news
and photographs obtained by its own staff. The International News
Service maintains an office in the respondent's Detroit plant, the Detroit
Times Building, just across from the quarters occupied by the re-
TIMES PUBLISHING COMPANY 655
spondent's editorial department. Comic strips, editorials, cartoons,
feature articles, and the American Weekly supplement to Sunday edi-
tions are prepared outside the State of Michigan and sent to the
respondent for publication in or distribution with the Detroit Times.
News is also obtained outside the State and forwarded directly to the
respondent in Detroit by reporters employed by it. Advertising ma-
terial originating outside the State is published by the respondent,
which in turn advertises the Detroit Times in publications appearing
in other States of the United States and in Canada.
The stock of the respondent is wholly owned by Hearst Publications,
Incorporated, through which the respondent is a part of the Nation-
wide Hearst organization of publications and of press, film, and radio
services. We have already considered this organization and its relation
to commerce.2
II. THE ORGANIZATION INVOLVED
The Newspaper Guild of Detroit is a labor organization admitting
to membership, among others, persons employed by news publications
in the Detroit area. It is a local of the American Newspaper Guild,
which is affiliated with the Committee for Industrial Organization.
The Newspaper Guild of Detroit is organized into employer units, one
of which admits to membership only employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged intimidation, restraint, and coercion
The complaint alleges in part that the respondent has by various
acts, including warning employees not to join the Guild and threaten-
ing them with discharge, attempted to demoralize the Guild and to
induce its employees to abandon the rights guaranteed them in Sec-
tion 7 of the Act. The only significant evidence in the record tend-
ing to support this allegation is that given by Leon A. Evarts with
respect to the Guild activities of Clarice Peterson, secretary to the
respondent's assistant circulation director, Walter Aronoff.- Evarts
testified that in the spring of 1937, after the Guild had obtained sub-
stantial membership among the respondent's editorial employees, he
and Clarice Peterson had a conversation in which he suggested that
she attempt to organize the non-editorial employees. Evarts further
testified that Clarice Peterson began such an organizing attempt, but
that she subsequently came to him and said she could no longer con-
tinue her Guild activities because both Aronoff and his superior, Jack
2In the Matter of William Randolph Hearst, Hearst Publication , Inc., Hearst Con-
solidated Publecatsons , Inc, Hearst Corporatson, American Newspapers , Inc. and King
Features Syndicate, Inc. and American Newspaper Guild, Seattle Chapter, 2 N. L.
R. B. 530.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. Stenbuck, the respondent's circulation manager, had threatened
her with discharge unless her activities ceased. This evidence is in
part corroborated by the testimony of another employee, Doris Comer-
ford, who stated that Clarice Peterson asked her not only to join
the Guild but also to approach a third employee. Doris Comerford
further testified that in July 1937, at a wedding shower attended by
12 or 15 girls employed in the respondent's circulation department,
Clarice Peterson suggested that all those present join the Guild to-
gether. Subsequently, according to Doris Comerford, Clarice Peter-
son's Guild activities "stopped all of a sudden."
On behalf of the respondent, it was testified by Clarice Peterson
that she signed an application for membership in the Guild and gave
it to Evarts, but that she never attempted to persuade and never did
persuade any one else to join. She denied ever having told Evarts
that she would be discharged if her Guild activities continued, and
she also denied that Stenbuck or Aronoff had ever said she would be
discharged if her Guild activities continued. She admitted having
stopped discussing the Guild with Evarts, but stated that this was
entirely voluntary on her part. Stenbuck testified generally that he
never told any employee of the respondent that he or she was not
to join a union or engage in union activities. Aronoff was called to
the stand, but was not questioned on the point.
We are of the opinion that the evidence does not sustain the allega-
tions of the complaint that the respondent attempted to demoralize
the Guild by warning employees not to join, by threatening them
with discharge, and by other acts. Evarts' testimony as to the alleged
statements made by Stenbuck and Aronoff to Clarice Peterson is di-
rectly contradicted by Clarice Peterson's specific denial that she ever
engaged in Guild activities or that Stenbuck and Aronoff ever threat-
ened her with discharge. Doris Comerford's testimony tends to cor-
roborate Evarts, but only in that it contradicts Clarice Peterson's
denial of Guild activities and thereby to some extent impugns the cred-
ibility of the remainder of her testimony. On the other hand, Clarice
Peterson's denial of the threat of discharge is at least partly supported
by Stenbuck's general testimony.
We find that the record does not sustain the allegation of the com-
plaint that the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. Accordingly, we will dismiss the allegations of the complaint
in this respect.
B. The alleged discriminatory discharge of Leon A. Evarts
During the winter of 1936-1937, the Guild conducted a successful
campaign for membership among the respondent's editorial em-
TIMES PUBLISHING COMPANY 657
ployees. Conferences between representatives of the Guild and the
respondent resulted early in 1937 in the respondent's posting on its
bulletin board a "statement of policy" with respect to working con-
ditions of editorial employees. At that time the jurisdiction of the
American Newspaper Guild, and therefore of The Newspaper Guild
of Detroit, extended only to editorial employees of news publications,
press services, and related enterprises. At the fourth annual con-
vention of the national organization, held June 7-11, 1937, it was
voted to affiliate with the Committee for Industrial Organization
and to make non-editorial employees eligible for membership. A
national referendum was then held among the membership of the
American Newspaper Guild, which resulted in ratification early in
September 1937 of the action taken by the convention.
At the time of his discharge on October 2, 1937, Leon A. Evarts
had been employed by the respondent for approximately 9 years as a
commercial artist, first in the advertising-promotion department and
then in the circulation-promotion department. On March 5, 1937,
a Guild membership card had been issued to him, despite the fact
that he was not an editorial employee and despite the then existing
limitation on Guild jurisdiction. Actually, however, it appears that
Evarts had joined the Guild or had at least applied for Guild mem-
bership in November 1936, and that he then began paying member-
ship dues. In the spring of 1937, Evarts began doing "missionary
work" for the Guild among the respondent's non-editorial employees.
After the convention of the American Newspaper Guild in June 1937,
Evarts' efforts turned to obtaining membership applications from
among this group of employees-efforts that were intensified after
ratification by the national membership on or about September 10,
1937, of the convention's action. In all, Evarts persuaded between
20 and 25 non-editorial employees of the respondent to join the
Guild between June 1937 and his discharge on October 2, 1937, most
of them subsequent to the completion early in September of the
Guild referendum. The record shows that Evarts' interest and mem-
bership in the Guild and his activities on its behalf were known to
supervisory employees of the respondent.
The respondent takes the position that Evarts' discharge was part
of an economy program instituted by the respondent during the
summer and fall of 1937 because of a general decrease in business
and particularly in advertising linage in the Detroit Times. It
appears from the record that approximately 56 employees were dis-
charged in the course of a year and that certain other steps were
taken by the respondent to reduce expenses. Evidence supporting
the claim of a decrease in business during the period in question is
uncontradicted.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time that Evarts was discharged, there were four commercial
artists, including Evarts, employed by the respondent in the advertis-
ing-promotion and circulation-promotion departments. Of these four,
Evarts had been employed by the respondent longer than any of the
others; and the respondent's advertising manager, Jess W. Fleck,
testified at the hearing that it was his practice to discharge or lay
off men in the order of their seniority. This necessitates considera-
tion of the explanation given by the respondent for discharging
Evarts while retaining the other three artists on its staff.
Harry Buxton was first employed by the respondent in April 1931.
The respondent's general sales manager of advertising, Louis H.
Burbey, testified that he "took Harry Buxton practically out of high
school and gave him five years experience and training under my
supervision," so that Buxton "was thoroughly familiar with my type
of operation." In December 1936, Buxton left the respondent's em-
ploy and joined the staff of an advertising agency in Detroit. The
evidence on behalf of the respondent is that Buxton was only "loaned"
to the advertising agency, which handled an important advertising
account in the city and which requested the respondent's help in estab-
lishing a Detroit office. Whether Buxton's transfer was actually a
"loan" of his services is at least doubtful on the present record. In
any event, Buxton remained with the advertising agency until shortly
before it closed its Detroit office at the end of September 1937. D^ir-
ing the summer of that year, Burbey assumed the duties of three other
executives who left the respondent's employ, and he testified at the
hearing that the consequent broadening of his duties made it impera-
tive for him to obtain the services of a competent assistant. Burbey
further testified that he knew in August of 1937 that the agency em-
ploying Buxton contemplated closing its Detroit office, and that he
then, with the consent of his superior, Fleck, rehired Buxton with the
understanding that the latter would return to work for the respondent
upon termination of his employment with the agency. The record
leaves at least some doubt as to whether Buxton was hired to act as
Burbey's assistant,^or whether he was hired in anticipation of Evarts'
discharge and to replace Evarts. On the record, however, it must be
found that Buxton has devoted most of his time since his reemploy-
ment by the respondent to advertising sales and lay-out work, and not
more than 10 per cent of his time to art work of the kind which Evarts
did while in the respondent's employ.
Richard Yendall, another of the three artists retained by the re-
spondent at the time Evarts was discharged, was first employed on
April 21, 1936. At the time that Evarts was discharged and for some
time prior thereto, Yendall was and had been spending a substantial
part of his working time at a downtown department store which was
TIMES PUBLISHING COMPANY 659
one of the respondent's major advertising accounts. November and
December were the 2 peak business months of the year for this depart-
ment store, and during these months the volume of its advertising was
correspondingly expanded. At the hearing, Burbey testified for the
respondent that it was he who at the time insisted that Yendall be
retained in preference to Evarts, because Yendall's discharge just prior
to the busy season of the store with which he had been working would
have jeopardized retention by the respondent of the store's advertising
business. About 5 months later, on March 19, 1938, Yendall was
discharged.
On June 28, 1937, about 3 months before Evarts' discharge, the re-
spondent hired a commercial artist, William H. Freyse, the third of
the artists retained by the respondent after October 2, 1937. Since
Evarts' discharge, Freyse has.spent a substantial proportion of his
time working on circulation-promotion work of the kind formerly
done by Evarts. Freyse receives $40 a week as compared with the
$53.50 a week which Evarts was receiving at the time of his discharge,
but counsel for the respondent stated in the course of oral argument
before the Board that this difference in salary was not a factor in the
respondent's decision to retain Freyse in preference to Evarts. The
respondent did, however, contend that there was reason to prefer
Freyse over Evarts, in that the latter was addicted to arguing with
his superiors as to the best method of carrying out advertising ideas,
frequently insisting on adopting his own method and thereby causing
a substantial loss of time because of the necessity for having the work
redone. Freyse, on the other hand, is stated to be not only technically
competent but also wholly amenable to the instructions of his superiors
and, therefore, a more valuable employee.
While the case is by no means free from doubt, it is our conclusion
that the evidence does not sustain the allegations of the complaint
that the respondent discharged Leon A. Evarts because of his
Guild membership and activities.
Since none of the allegations of unfair labor practices contained
in the complaint have been found to be supported by the evidence,
we will dismiss the complaint in its entirety.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS or LAW
1. The operations and business of the respondent constitute trade,
traffic, and commerce among the several States, within the meaning
of Section 2 (6) of the Act.
2. The Newspaper Guild of Detroit is a labor organization, within
the meaning of Section 2 (5) of the Act.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
4. The respondent has not discriminated in regard to the hire or
tenure of employment of Leon A. Evarts, within the meaning of
Section 8 (3) of the Act.
'ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint against the respondent , The Times Publishing Com-
pany, Detroit , Michigan , be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.