Birmingham Post Co.

National Labor Relations Board - Board Decisions

Apr 29, 1943

49 N.L.R.B. 206 (N.L.R.B. 1943)

11
In the Matter of BIRMINGHAM POST COMPANY and BIRMINGHAM NEWS-
PAPER GUILD, AFFILIATED WITH THE AMERICAN NEWSPAPER GUILD
Case No.- C-2519;--Decided-April 29,1943
DECISION
AND
ORDER
On January 27, 1943,' the Trial Examiner issued his Intermediate,
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the*copy of the Intermediate Report
annexed, hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief in support of its exceptions. The
Board has reviewed the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations made by the
Trial Examiner, with the exceptions and additions noted below :
1. The Trial Examiner has found that the strike which began on
September 6, 1941, was both caused and prolonged by the unfair labor
practices of the respondent. While there is evidence that the Guild
shop provision was proposed at least in part because of the Guild's
desire to stop the anti-Guild activities of McCluskey and other man-
agerial employees, the record does not in our opinion clearly show
that these activities were the underlying cause of the strike and that
the ,respondent's refusal. to grant-, a-Guild- shop merely precipitated
the strike. The Trial Examiner's finding that the strike was caused by
the unfair labor practices of the respondent is hereby reversed. How-
ever, we agree with the Trial Examiner's finding that the strike was
prolonged by the unfair labor practices of the respondent during the
strike. As we find below, certain supervisory employees of the re-
spondent improperly instigated and took part in a back-to-work move-
ment starting,on September 9, 1941. This movement led directly to
49 N. L. R. B., No. 29. -
206 .
BIRMINGHAM POST COMPANY 207
the formation of the Independent shortly after the strike had begun.
This interference by the respondent with the formation of the,In-
dependent, the support given to it by McCluskey's and Laney's con-
duct after its formation, and the activities of Laney and Holmes
during the strike inevitably served to prolong the strike on and after
September 9, 1941.
2. The Trial Examiner's finding that the respondent dominated and
interfered with the formation and administration of the Independent
is based in part upon his subsidiary finding that "the activities of
McCluskey, Laney and other employees clearly aligned with the re-
spondent . . . reveal a planned procedure designed to set up an in-
dependent labor organization." We are not convinced thatiMcCluskey,
Laney, and Holmes, in participating in the meetings on September 9
and 10, 1941, had as their purpose the formation of an unaffiliated labor
organization. Although McCluskey, in filling out the application form
for a meeting room on September 9, designated the group which was to
hold the meeting as "Associated Post Employees," he testified that he,
did so at the insistence of the courthouse superintendent that some
name be stated on the form, and that the superintendent suggested the
name thus used. Furthermore, it appears that prior to September 11,
1941, the date on which Rucker consulted an attorney about incorpo
ration, the only purpose in holding meetings of the employees was to
"discuss possibilities of getting back to work." However, we find that
the activities of these clearly supervisory employees in encouraging
and participating in the movement to persuade the respondent's em-
ployees to return to work and abandon the strike and thereby the Guild
constituted an unfair labor practice by the respondent.' It is clear,
moreover, that the back-to-woik movement led directly to the forma-
tion of the Independent, and that the part taken by the respondent's
supervisory employees in the former furnished the impetus for the
latter. Thus, the first meeting on September 9, 1941, which was un-
organized and on the verge of breaking up, was revived by McClus-
key; and Rucker, the nominee of the respondent's purchasing agent,
Holmes, for chairman of the meeting held on the evening of Septem-
ber 9, was elected without opposition to that position and subsequently
became president of the Independent. We find that the respondent
supported and interfered with the formation of the Independent.
We find further that City Editor McCluskey's visits to the office of
the Independent, Foreman Laney's attendance at a meeting, and his
signing of the petition addressed to the respondent constituted sup-
,
ICf.' Matter ' of Chicago Molded Products Corporation ' and National Association of Die
Casting Workers, 38 N. L. R B 1111 ; Matter of Lettie Lee, Inc. and International Ladies'
Garment Workers' Union, Cutters Local No. 84, A. F. L., 45 N. L. R. B. 448; Plymouth
Finishing Co., rue, and Textile Workers Union of America ( C. I. 0.), 48 N. L. R B.
946.
ti
208 DECISIONS OF NATIIONAL LABOR RELATIONS BOARD,
port of the Independent and interference with its administration.
3. Since we have found that the strike which began on September 6,
1941, was not caused by the respondent 's unfair labor practices but was
prolonged thereby on and after September 9, 1941, our order will pro-
vide that all employees hired by the respondent on or after September
9,1941, shall be dismissed if necessary to provide employment for those
to be reinstated . We shall order that the respondent : ( 1) offer to those
employees , if any, who went on strike^on September 6, 1941, or there-
after, and who have since applied for and have , not been offered rein-
statement , immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their seniority and
other rights and privileges ; and (2 ) upon application , offer to those
employees who went on strike on September 6, 1941, and who have not
since applied for reinstatement , full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority.
and other rights and privileges . Reinstatement shall be effected in the
following manner: all new employees hired by the respondent on or
after September 9, 1941, shall , if necessary to provide employment for
those to be offered reinstatement , be dismissed . , If, thereafter , despite
such reduction in force, there is not sufficient ' employment available for
all the employees to be offered reinstatement , all available positions
shall be distributed among such employees without discrimination
against any employee because of his union affiliation or activities, fol-
lowing such system of seniority or other practice as has heretofore
been applied in the conduct of the respondent 's business . Those em-
ployees, if any, remaining after such distribution , for whom no em-
ployment is immediately available , shall he placed upon a 'preferential
list and thereafter offered employment in their former or substan-
tially equivalent positions as such employment becomes available and
before other persons are hired for such work , in the order determined
among them by such system of seniority or other . practice as has
heretofore been followed by the respondent.
We shall also order the respondent to make whole those employees,
if any, who went on strike on September 6, 1941 , or thereafter, and
who have since applied for and have not been offered reinstatement,
for any loss of pay they have suffered by reason of the respondent's
refusal to reinstate them, by payment to each of them of a sum of money
equal to the amount which he would normally have earned as wages
during the period from 5 days after the date on which he applied for
reinstatement to the date of the respondent 's offer of reinstatement
or placement on a• preferential list, less his net earnings during such
period; to make whole those employees who went on strike on Septem-
ber 6, 1941 , or thereafter ; and who have since applied for and have
received reinstatement , for any loss of pay they ' may have suffered
by reason of the respondent 's refusal, if any, to reinstate them within
BIRMINGHAM PGST COMPANY 209
5 days from the date of application, by payment to each of them of a
sum of money equal-to the amount which he would normally have
earned as wages during the period from 5 days after the date upon
which he applied for reinstatement to the date upon which he was
reinstated, less his net earnings during such period; and to make whole
those employees who went on strike on September 6, 1941, or thereafter,
and who have not yet applied for reinstatement, for any loss of pay
they may suffer by reason of the respondent's refusal, if any, to rein-
state them upon application, as provided above, by payment to each
of them of a sum of money equal to the amount which he would nor-
mally earn as wages during the period from 5 days after the date on
which he applies for reinstatement to the date of the respondent's offer
of reinstatement or placement on a preferential list, less his 'net earn-
ings during such period.
ORDER
Upon the basis of the above findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Birmingham Post Company, Birmingham,, Alabama,, and
its officers, agents, successors, and assigns, shall :
1. ' Cease and desist from : ,
(a) Dominating or interfering with the administration of Alabama
Newspaper Employees, Inc., or with the formation or administration
of any other labor organization of its employees, and from contributing
support to Alabama Newspaper Employees, Inc., or to any other labor
organization of its employees;
(b) 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 labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act : >
-(a) Withhold all recognition from Alabama Newspaper Employees,
Inc., as the representative of any of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions -of
employment, and completely disestablish Alabama Newspaper Em-
ployees, Inc., as such representative; -
(b) Offer to those employees, if any, who went on strike on Septem-
ber 6, 1941, or thereafter, and who have since applied for and have
not been offered reinstatement, immediate and full reinstatement to
their former or substantially equivalent' positions, without prejudice
i
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their seniority and other rights and privileges , in the manner set
forth in paragraph 3, above, and place those employees for whom em-
ployment is not immediately available upon a preferential list, in the
manner set forth in said section , and thereafter in said manner offer
them employment as it becomes available;
(c) Upon application, offer to those employees who went on strike
on September 6, 1941, or thereafter, and who have not since applied
for reinstatement, full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges, in the manner set forth in paragraph 3, above,
and place those employees'for whom employment-is not immediately
available upon a preferential list, in the manner set'forth in said sec-
tion , and thereafter in said manner offer them employment as it be-
comes available; t
(d) Make whole those employees, if any, who went on strike on
September 6, 1941, or thereafter, and who have since applied for and
have not been offered reinstatement , for any loss of pay they have
suffered by reason of the respondent's refusal to reinstate them, by
payment to each of them of a sum of money equal to the amount which
he would normally have earned as wages during the period from five
(5) days after the date on which he applied for reinstatement to the
date of the respondent's offer of reinstatement or placement upon a
preferential list as required by paragraph 2 (b) of this Order, less his
net earnings during said period ;
(e) Make whole those employees who went on strike on September
6, 1941, or thereafter, and who have since applied for and have re-
ceived reinstatement, for any loss of pay they may have suffered by
reason of the respondent's refusal, if any, to reinstate them within
five (5) days from the date of application, by payment to each of them
of a sum of money equal to the amount which lie would normally
have earned as wages during the period from five (5) days after the
date on which he applied for reinstatement to the date upon which he
was reinstated, less his net earnings during said period;
(f) Make whole those employees who went on strike on September
6, 1941, or thereafter , and who have not yet applied for reinstatement,
for any loss of pay they may suffer by reason of the respondent's
refusal, if any, to reinstate them upon application, as required by
paragraph 2 (c) of this Order, by payment to each of them of a sum
of money equal to the amount which he would normally earn as wages
during ,'the period from five ( 5) days after the date on. which he ap-
plies for reinstatement to the date of the respondent 's offer of rein-
statement or placement upon a preferential list , less his net earnings
during said period;
(g) Post immediately in ,conspicuous places throughout its plant
at Birmingham , Alabama, and maintain for a period of at least sixty
BIRMINGHAM FOIST COMPANY 211
(60) consecutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (A) and (b) of
this Order; and (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), (d), (e), and (f) of
this Order;
(h) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
31r-Alexander E IVilson., Jr.,,and Mr. James IV. Doisey, for the Board.
Baker, Hostetler, & Patterson, by Mr. Thomas J. Edwards and Mr. Ezra K.
Bryan, of Cleveland, Ohio, for the respondent.
Leader, Hill, & Tenenbaum, by Mr. John D. Hill, of Birmingham, Ala, for the
respondent.
Mr. Abraham J Isserman, of Newark, N. J., land Mr. Yelverton Cowherd, of
Birmingham , Ala , for the Guild.
Mr Richard Had Bi own, of Birmingham, Ala, for the Independent.
STATEMENT OF THE CASE
Upon a charge duly,tiled by Birmingham Newspaper Guild, affiliated with the
American Newspaper Guild, herein called the Guild, the National Labor Relations
Board. herein called the Boil d, by its Regional Director for the Tenth Region
(Atlanta; Georgia), issued its complaint dated October 18, 1941, against Birming-
ham Post Company, herein called the respondent, alleging that the respondent
had'engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the
complaint and the charge, accompanied by a notice of hearing were duly'served
upon the respondent, the Guild, and the Alabama Newspaper Employees, Tile,
herein called the Independent.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) the respondent on or about September 5, 1941, initiated, formed and
sponsored the Independent and has since that date dominated and contributed
to the support of an interfered with the administration of the Independent ; and
(2) on or about September 6, 1941, certain employees of the respondent ceased
work concertedly and went on strike because of the unfair labor practices of the
respondent, and that the strike was prolonged by'its unfair labor practices; and
(3) the respondent by the foregoing acts and by various other described methods,
has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
On or about October 29, 1941, the respondent filed its answer admitting certain
allegations of the complaint concerning the nature of its business, denying that
it had engaged in any unfair labor practices and denying that the strike beginning
on September 6, 1941, was caused or prolonged by its unfair labor practices.
Pursuant to notice, a hearing was held on November 3, 4, 5, 6, 7, and 10, 1941,
at Birmingham, Alabama, before James C Batten,"the undersigned Trial Exam-
iner duly designated by the Chief Trial Examiner of the Board. The Board,
the respondent, the Guild, and the Independent were represented by counsel and
531er47-43-col 49--15
I
212 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated in the hearing Full opportunity to be,heaid, to examine and cross-
examine witnesses, and to produce evidence bearing upon the issues was afforded
all parties. -
At the opening of the hearing., the Independent's motion to intervene in the
proceedings was granted by the undersigned , insofar as its interests were affected
The Independent then filed an answer, denying the alleged unfair labor practices
involving it. A motion by the Independent, made at the commencement of the
hearing, for a bill of particulars was dismissed by the undersigned with the state-
ment that if it later appeared, the interests of the Independent were prejudiced by
-such denial, consideration would then be given to a request for a continuance to
prepare a defense. At the close of the respondent's case, after the undersigned
had denied the Independent's renewal of its motion for a bill of particulars, the
Independent requested a continuance. The undersigned denied the request
During the course of the hearing R. H. Brown and Fred Rucker refused to produce
certain records of the Independent although the Board had duly servediupori
them subpenas cbuces tecum' At the close of the testimony, the Independent
moved to dismiss the, complaint on the ground that there, was no evidence to
support the allegations that the Independent was initiated, formed, sponsored,
and dominated by the respondent. .The undersigned denied the motion. Also
at this time, the undersigned 'granted a motion by counsel for the Board to con-
form the pleadings to the proof. At the close of the testimony, because of the
pendency of an action to enforce the subpenas, the undersigned adjourned the
hearing subject to further order of the Trial Examiner.'
On October 14, 1942, in an order served upon the Board, the respondent, the
Guild, and the Independent, the undersigned closed the hearing and notified the
parties that they had until October 24, 1942, to file briefs. The respondent filed
a brief.
Upon the entire record in the case, the parties having filed no objections to the
order closing the hearing, the undersigned makes the following
FINDINGS OF FACT
I THE RUSIN,ESS OF THE RESPONDENT
The respondent, Birmingham Post Company, an Alabama corporation, with its
office and plant at Birmingham, Alabama, is engaged in the publication and dis-
tribution of a daily newspaper with an average daily circulation of 75,000. The
-respondent is controlled by and functions as an integral part of the, Scripps-
Howard Newspaper Chain
Practically 100'percent of the supplies-newsprint. type metal, ink, mats, photo
supplies, and printed forms-purchased by the respondent were shipped through
the channels of interstate commerce to its plant in Birmingham, Alabama, from
without the State of Alabama. -
'Upon a petition by the Board, the United States District Court for the Northern
District of Alabama on Januaiy 21, 1942, ordered R. H. Brown and Fred Rucker to
appear before a Trial Examiner of the Board and there to produce the records called for
by the subpenas dntces tecum. On February 6, 1942, upon the petition of R. H. Brown
and Fred Rucker, the District Court allowed their appeal to the United States Circuit
Court of Appeals for the Fifth Circuit On October 10, 1942, the Circuit Court, upon a
joint agreement of counsel for the , parties , dismissed the appeal and authorized 'they
District Court to withdraw its order requiring R H. Biown and Fred Rucker to, appear
and answer the subpenas daces tecum.
2 The parties all agreed that they had no further testimony to offer , except upon the
financial tiansactions iefeired to in the subpenas dices tecum above mentioned. It was
further agreed that the undeisigned , upon five days' notice to the parties , might reconvene
the hearing.
-BIR';M1\GHA\-1 POST COMPANY 213
The respondent is served by the United Press Association, a corporation con-
tfrolled by the Scripps-Howard interests, which is engaged in the collection and
interchange of information and intelligence for publication in newspapers in
the Untied States and foreign countries. This service entitles the respondent
to news secured by the United Press from sources throughout the United States
and fotbign countries. The United Press in turn receives the exclusive use for
publication of all local new,,, published in the respondent's paper. In addition
to the United Press service many of the respondent's daily features and comic
strips originated in sources outside the State of Alabama.
't'he respondent through the Scripps-Howard national advertising department
man Itains advertising repiesentati',es in New York, New Ybrk; Philadelphia,
Peuus3li:1111Ir: Chicago, Illinois; Detroit, -Michigan; San Fiancisco, California;
and Mleniphis, Tennessee Of the, total advertising of the Birmingham Post
approximately 15 percent is "national" advertising and paid for by agents ands
advertisers outside the State of Alabama
John IN' Frierson, as business manager, and James E Mills, as editor,` direct
the respondent's operations The dep,irtnients and persons in charge of them are
aS lollows John W. Frierson, :is president and business manager, in charge
of the following departments and personnel: Office âM,inager, It J Ward; Circu-
lation Manager, G. E Peer; Local Display Advertising Manager, W. E Brown;
Classified Advertising Manager, Wiliiot Calloway, National Advertising Man-
ager, B W Lewis, Press Foi eni:un. F 1) Bivins, Stereotype Foreman, H. H,
Keyce,. Maul Foreman, J B Laney, 't'ransportation and Garage Foreman,
E G Latham; Pnichasing Agent. F E Hoboes: Cashier, C. E. Swango, Jr.:
James E Mills. editor, in charge of the editorial department and the composing
tooni These last mentioned departments are under the direct supervision of
H E Glenn, managing editor; and Henry Moiewitz, composing room foreman'
II '1HE ORGANIZATIONS INVOLVED
Birininghnin Newspaper Guild is i labor organization, affiliated with the
Americiin Newwspapei" Guild, admitting to nieinbci'ship employees in the non-
mechanical departments of the respondent
Alabama Newspaper Employees Inc, is :in luiaffiliated labor organization ad-
mitting to membership employees of the respondent ill the editorial, circula-
tion, advertising and clerical departments.
III THE. UNFAIR LABOR PRACIM'S
A B11 omi d
The Call([ was organized anioiig the respondent's employees either nn 1936 or
1937 Sometime in 1937, the respondent entered into a contract with the Guild
:is the representative of the employees in the editorial department. Contrac-
IIn the incidents desciibed ill the following sections sonic of these individuals figured
pionimently The respondent admits they have charge of the work in their departments
and have under their supei vision and control the employees assigned to the respective
depaitiiieuts The testinionv of the respondent's witnesses is clear that they have cony
plete charge of their respective departments The superiisory status of these employees,
pith the exception of ltolnies and Silango, is not in dispute TTolnies' and Swango's
positions arb closely related to the m:ulagenient and of a confidential nature vie undei-
signed concludes and finds that these pci sons i epiesent the nianagenient and then activities,
if '11 13" in connection ti-ith the exercise by the employees of their rights wider the Art
are elmgeable to the respondent
214 DECISIONS OF N"AP..0NAL LABOR RELATIGNMS BOARD
teal relations between the parties covering these editorial employees was main-
tained through the years 1938, 1939, and into September4910. In September 1940
the Guild and the respondent entered into' a contract for' a period of one,year, on
behalf of all the editorial and circulation employees, except certain individuals
,whose positions were expressly exempted by the provisions of the contract.
The exempted positions in the editorial department were as follows: editor,
managing editor, editorial writers, city editor, news editor, editor's confiden-
tial secretary, correspondents, temporary employees; and in the circulation
department, circulation manager. city circulation managers'. county circulation
manager, street sales manager, circulation manager's confidential secretary,
garage foreman, outside solicitors, part time and temporary employees.
Throughout 1937 and until the early part of 1941 the tespondent's relationship
with the Guild was satisfactory, involving at times minor complaints which
apparently were amicably adjusted.
Sometime in February 1941, Edwfird Woods, an organizer for the American
Newspaper Guild, was sent to Birmingham to assist the 13iriningliam cliapter
of the Guild. Woods' activities among the respondent's employees were well
known to the management and to its supervisory employees. He was active in.
attempting to increase the membership, assisting the officers, and helping the
negotiating committee. With the consent of the respondent, Woods had access
For several months prior to September 5, 1941, the expiration (late of the
Guild contract, and patticularly as the time approached'foi contract negotia-
tion with the Guild, the respondent's supervisory employees expressed to the
employees and the members of the Guild their hostility to that organization
Negotiations started in the early part of August for a new contract. After
several conferences, at which little if any progress was made, the Guild called
aastiike, effective September fi, 1941, details of which are filly set forth below.
The strike was at once successful; causing the iespoalent to suspend the pub-
lication of its paper. At the time of the hearing the respondent had not re-
sented publication of its paper, the strike still being in effect
to the employees during working hours. -
B Strpctvisoiieaiploi/ees
In addition to the employees heretofore found to be representatives of the
miuiagement,' certain other employees' alleged supervisory Status must be de-
termined in order to resolve certain other issues in the case Their names
appear in the record in connection with the allegations concerning interference,
restraint. and coercion on the part of the respondent and the formation and
administration of the Independent The respondent contends that it is not
,chargeable with then- activities The undersigned will tlierefoie determine
their status before considering the allegations involving specific unfair labor
practices. -
^dwo,(I D McC1esbey
llcCluskey for 4 years has been the city editor of' the Bmmnigliani Post.
Prior to this period he was for some time assistant city editor of the Columbus
Citizen, Columbus, Ohio, and while in Columbus was a member of the Guild.
From 1937 to 1941 the respondent had contractual relations with the Typographical,
l'ressinens', Stereotype's', and Maileis' unions, all of which were affiliated with the
Anrencan Federation of Labor All of these contracts provided for a closed shop J B.
Laney, mail room foreman, at the time the respondent entered into a contract with tiro
Mailers' union, was exempt from the closed-shop prof ision of that contract.
5 See footnote 3, supra.
BIRMINGHAM POST COMPANY 215
After coming to Birmingham, McCloskey did not affiliate with the Birmingham
chapter of that organization. The respondent's contract with the Guild exempts
the city editor (McCluskey) from its provisions and lie' is not eligible for
membership in the Birmingham Guild. McCInskey's chief duty is to collect
local and state news and to supervise the waiting and preparing of this news
for publication. For this purpose McCluskey has under his supervision and
direction six reporters and two photographers. The assignment of regular
"beats" and special work to this staff was the sole responsibility of McCluskey
He at times recommended the employment and discharge of employees under
his supervision The undersigned finds that McCluskey was a supervisory
employee of the respondent and further finds that the respondent is responsible
for his activities, hereinafter related, in interfering with the respondent's em-
ployees rights under the Act,
Ceatain other enaploatees
Charles W Whaley. who has been continuously in the respondent's employ
since 1921, is the city circulation manager and exempt from the provisions
of the Guild contract. He is in charge of 20, district or branch managers, who
are covered by the terms of the Guild contract. Whaley directs and supervises
the work of these District Managers. Geoige L.Andeison is the respondent's
country circulation manager and' exempt from the provisions of the Guild
contract He has, since 1927, been continuously employed in this capacity;
has uudei his supervision two or three employees and as a part of his duties
negotiates contracts with independent contractors for the sale and distribution
of respondent's paper in the country districts.
Whaley and Anderson hold positions of responsibility, calling for the super-
vision of employees and the transmittal to them of respondent's instructions.
Thus, to the employees they represent the management The undersigned finds
that the above uauned individuals were supervisory employees and as such, the
management is responsible for any of their activities, Hereinafter related, which
denied to the employees the freedom of self-organization guaranteed them in
the Act.
C Intcrterence, aestraont, and coercion. prior to the shi/e of September 6, 1941
Concurrently with the activities of Organizer Woods and the renewed interest
of the employees in the Guild, certain of the respondent's supervisors, made
clear to the employees their hostility to the Guild and its leaders. City Editor
McCluskey, under whose supervision most of the active Guild members worked,
engaged in a course of action which was derogatory to that organization and
its members.
Sometime in the early part,of 1941, according to the testimony of Irving
Beiman, a reporter and officer of the Guild, McCluskey, his supervisor. stated
to him that "if any of you boys go on strike (Editor) Jim Mills will see that
none of you ever get another job on another newspaper." McCluskey denied
having any such conversation with Beaman but for reasons stated below, the
undersigned does not credit his denial. Beiman,also testified, that on another
occasion, as he was passing McCluskey's desk, McCluskey looked at him and
remarked;- "I am going to get rid of all of.these.damned Guildsmen. I am going
to clean house." McCluskey, although he denied that lie made any reference
to Guildsmen in this conversation, admitted that lie stated "everything was
going to hell around here, and if we didn't change it" he was "going to clean
house and start over." Beiman further testified 'that in the spring of 1041
216" , DE 'CISIONS" OF NATIIONAL LABOR RELATIONS BOARD
McCloskey stated to him that "everybody in * the Guild was a conununist "
McCluskey denied referring to "everybody" in the Guild as communists, ad-
mitting, however, that in his remarks he used the' word "communist," but that
lie had reference to a New Yolk communist (Woods).
James Shipley, a reporter, testified without contradiction, that McCluskey
phoned to Dillon, a reporter said officer of the Guild, who was about to enter
the U. S. Army and in a loud voice audible to everyone in the city room told
Dillon. "I want you to tell that son-of-a-bitch Woods,.to stay out of this office
during working hours " Shipley further testified that in this conversation,
McCluskey referred to Dillon's Guild activities and suggested to Dillon that
he could organize a Guild when he got in the Army. It is undenied that Mc-
Cluskey in this conversation accused Dillon of being disloyal to the paper e
Notwithstanding Editor Mill's testimony that on several occasions, upon com-
plaint by Guild representatives that McCluskey was intunidating the reporters,
lie, after reporting to McCluskey the substance of the Guild complaints,' warned
him to "lay off"' The evidence is conclusive that these warnings did not deter
McCloskey. McCloskey admitted conversations involving references to the Guild
and its members, on every occasion, except one, referred to by Beinnan and
Shipley. The circumstances reflected in the record do not lend credence to the
testimony of McCluskey. This is especially true when consideration is given
to McCluskey's entire course of conduct toward'the Guild, including his activities,
hereinafter related, in sponsoring the Independent. The testimony of Beiman
and Shipley is supported by the admissions of McCluskey, and in many respects
by Board and respondent witnesses; accordingly the niidersigned finds that
McCluskey made the statements attributed to hiin by Reiman and Shipley.,
It is plain from the foregoing that the respondent, through McCluskey, its
city editor, interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The record leaves no doubt of the respondent's hostility and,active opposition
to the Guild by other employees occupying supervisory positions. This ;is mani-
fested in the statements of W E Brown, advertising manager, G. E. Peer,
circulation manager, and Charles W. Whaley, city circulation manager, all of
whom have,heretofore been found to be representatives of the management.
Harold Helfer, a reporter and president of the Guild, testified that sometime
in the spring of 1941, at the invitation of W E Brown, lie went for an auto ride
and during the ride Brown, advised Helfer, that he "was a fool to stay in the
Guild."`that Helfer would be better rewarded if he left the Guild and it would
be advantageous for him to do so, pointing out that "the Guild was just for
people who didn't have much on the ball." Brown testified, that this was the
only' occasion that Helfer had ever been in his car. He further testified, that
there was some talk about unions and that lie did tell Helfer that it was his
thought "that mediocre people were helped more by unions than people who had
something on the ball, or had some ability." Brown's invitation to Helfer to
accompany him for a ride, and his admission that the topic of conversation was
unions , convinces the undersigned that Helfer's version of the conversation is
credible. _
i
According to the testimony of Joe Hurlhert, a, district representative in the
circulation department, the day after he joined the Guild, Peer called him to the
a McCluskey admitted making this statement in substance but insisted that it was
"said in a jesting way " In few of McCluske^'s obvious hostility to the Guild, his pre-
vious anti-Guild statements, his reference to Guild iaembeis as communists, and all the
surrounding circumstances , the undersigned is not impressed with McCluskey' s explana-
tion of these statements.
BIRMINGHAM POST COTNIPANY 217
desk and stated, "Joe, I understand you are with us" IIurlbert replied, "No,
Mr Peer , I joined the Guild last night. " Peer then asked, "Does that go for
Gray Cobb also'?" Hnrlbert testified that lie did not answer Peer 's -inquiry
concerning Cobb , but that the night before they had both joined the Guild. The
testimony of IIurlbert is undenied that, Charles W. Whaley, circulation manager
under whom he worked , asked him one morning while he, Hurlbert, was checking
in, "Joe, 'I understand you have joined the Guild." The undersigned finds that
the foregoing statements and inquiries by Brown , Peer , and Whaley are attribut-
able to the respondent and further that the respondent thereby interfered with,
iestrained , nnd coerced its employees in the exercise of the rights guaranteed
them in the Act
D The strike of Sept 6, 1941
Sometime in the early part of August, 1941, the respondent, represented by
Frierson, Mills. and Peer, and the Guild, represented by Helfer, Shipley, Beiman,
McGinnis. and Woods, commenced negotiations for a new contract in place of
the one expiring on September 5, 1941. After unsuccessful negotiations with the
respondent concerning the provisions to be embodied in the contract, extending
over a period of 4 or 5 weeks, the Guild called a strike effective September 6,
1941. The Guild established a picket line and when the pressmen refused to
operate the press, the respondent suspended publication of the paper. The strike
was still in progress at the time of the hearing in this proceeding.
During negotiations between the Guild and the respondent, the Guild proposed
a contract with provisions for a Guild shop and increased wages. The conferees
never reached the point of discussing the contract, provision by provision. At
' There was it considcrablo amount of testimony offered by the Board, for the purpose
of showing discrmunatorv treatment of certain employees, members of the Guild, in the
assignment of work in the editorial department. Irving Beiman, a reporter, delegate to
the Birmingham Industrial Council of C. I. 0 , and a member of its Legislative Committee,
testified that for 4 to G years poor to April, 1941, lie had covered labor news for the
respondent. In about April, he was taken off the "labor beat." Berman testified, in
iesponse to an imluiiv as to why this had been done, that lie was told by Mills, "he
(Mills) didn't want the Birmingham Post to be laid open to criticism, that labor stories
were being written by a member of the C. I 0 , because it might be said that those
stories could not be written fairly because I (Beiman) was a member of the C I. 0
Council " It should be noted, that while Beiman was a member of the Guild, he was
permitted to report labor news It was not until after he became a delegate to the
Birmingham Industrial Council of C I 0 and it member of its Legislative Committee,
that he was taken off the labor assignment Harold Helfer, it reporter and columnist,
and president of the Guild, testified that after lie was made president of the Guild, for
about 2 or 3 months prior to the strike, lie was no longer getting his "by-lute" on stories
which,,ordinarily' cariied it, McCluskey, the city editor, testified that he was not'awaie
that the number of "by-lines" had been reduced, that he had not reduced the number
himself, and that lie thought "he (Helfer) got more by-lines than anybody on the staff."
Helfer, himself, was not very specific about the reduction in the number of "by-lines"
beyond saying "it began to fall off as contract time approached." One further incident
might be mentioned in this connection Helfer testified that 3 or 4 days before'the strike
in September, lie had wi itten a story concerning a rumored strike at Tennessee Coal,
Iron & Railway plant, which lie turned in to McCloskey who "killed" the story, remarking,
"That is nothing but C. 1 0. propaganda." Although Helfer contended that the story
as written purported to give the management's version of the impending strike, McCluskey,
admitting thot he "killed" the story, testified that in his Judgment the story was "pure
propaganda ' and that "mm strike resulted out there" In all the circumstances, the
undersigned is of the opinion that all of the above incidents relate to matters of editorial
and managerial policy properly within the discretion and judgment of those responsible
for formulating the policy of the respondent's newspaper Furthermore, the evidence fails
,to support the contention of the Board that these acts constituted discriminatory treat-
nment of the employees, who were members of and active in behalf of the Guild.
I
C,
218 ' DECISIONS OF NAT]ONAL LABOR RELATIONTIS BOARD
O
the conferences the Guild representatives renewed' their complaints, concerning
McCluskey's activities toward the Guild At the last conference, a , few. , days'
prior to the strike, the Guild protested vigorously l leCluskey's intimidation of the
employees, stating that the Guild shop was necessary, if the Guild was to con-
tinue in_ the respondent's plant. At - this conference the parties reached an
impasse on the Guild shop and wages
On- September 4 the membership voted to strike. At the hearing, Woods, a
representative of the Guild, stated that the demand for a Guild shop was neces-
sary for the preservation of the Guild unit and its right to live on the paper.
Helfer, president of the Guild, testified that at Guild meetings, the officers and
members discussed their grievances and problems with the management. He
further testified, that several of the grievances had, been discussed during the
negotiating conferences, in connection with the demand for a Guild shop The
Guild's position with respect'to the Guild shop was that if a good percentage of
employees belonged to the Guild, and its survival was assured, that then, there
would be no point in the iespondent's trying to. discourage membership in the
organization.
The respondent in its answer contended that the strike was not caused or pro-
longed as alleged in the complaint by any unfair labor practices. The under-
signed does not accept this contention. The evidence is clear that one of the
important causes of disagreement between the respondent and the Guild was the
interference with the employees' rights to self-organization by supervisory em-
ployees During the course of the negotiations, several instances of interference,
heretofore described, were brought to the attention of the respondent, particularly
the activities of McCluskey. There can be no doubt that one of the Guild's prin-
cipal objects in attempting to negotiate a new contract was to terminate such'
-discriminatory activities, as heretofore found to be unfair labor practices. The
Guild' sought to accomplish this purpose by insisting upon a Guild shop which
would provide for its preservation in the respondent's plant The respondent
refused to accept the Guild shop although the reason for such a demand was fully
understood by it and the Guild insisted that without a Guild shop it would not
be able to protect itself and its members from the- interference in which: the
respondent had engaged. While Mills had on more than one occasion warned
McCluskey about his activities, the Guild because of his continued interference
was justified in believing that something more was needed to curb McCluskey,
than repeated warnings.
Thus, while the refusal of the respondent to enter into a contract which would
protect the Guild members from further interference may have precipitated the
strike, its underlying cause was the unfair labor practices which the Guild sought
by contract to prevent The undersigned is satisfied and finds that the strike
of September 6, 1941, is a current labor dispute, caused by the unfair labor
practices of the respondent, which the undersigned found he-inabove to have
occurred. The undersigned further finds that the respondent's continued course
of unfair labor practices, hereinafter related,' were a substantial and motivating
factor in prolonging the strike of September 6, 1941.
E. Respondent's interference with the formation and administration
of the Independent'
1 The formation of the Independent-activities of respondent's supervisory
officials
Within a few days after September 6, 1941, the effective (late of the'strike,
McCluskey and Laney, heretofore found to be representatives of the respondent
continued their interference with the rights of the employees under the Act, and
BIR\IlN GHAMT POST COMPANY 219
with the assistance of other management representatives, sponsored a back-to
work movement, which culminated in the organization of the -Independent.
Prior to September 9, the Guild was the only labor organization among the
respondent's employees, admitting to membership or claiming to represent persons
employed in the editorial, circulation and other ioninechanical departments.
On that date, McCluskey accompanied by Ceravolo and Murray, composing room
employees, went to the Jefferson County Cout thouse, where McCluskey signed an
application for a meeting room, stating that 150 to 200 persons were expected
to attend, and designating the organization sponsoring the meeting as the "Asso-
ciated Post Employes." McCluskey in signing this application gave as the purpose
for the meeting, "To discuss possibilities of getting back to work" After securing
a permit to hold a meeting at 2: 30 p. in, McCluskey, Ceravolo and Murray, went
to the home of Miss Bowman, an office employee, who was familiar with the
names of the respondent's employees, requesting her to telephone the employees.
and notify them of the meeting to be held at the Courthouse that afternoon.10
Martha Leland, who as secretary to the circulation manager was exempt from
the provisions of the Guild contract, also took an active part in notifying em-
ployees of the Courthouse meeting. The purpose of the meeting was two-fold.
One phase was to channelize the desire of the employees to resume publication
of the "Post"; the other phase was to lay the groundwork for an organization=
the Independent.
The meeting held at 2: 30 p m in the Courthouse was attended by employees -
from all departments of the respondent's plant, including, supervisors, foremen,
mechanical employees, and Guild members. The meeting did not open until
Laney, mailroom foreman, '*just walked on up to the chair" and appointed a
chairman. The meeting was somewhat disorderly and when the mechanical
employees and Guild members started to leave the meeting, Laney's motion to
adjourn prevailed McCluskey, who had been delayed, arrived, as the employees
were leaving. He requested "all of those who wanted to go back to work, why,'
stay." When the employees had reassembled, McCluskey "got up and called the
meeting to order", and he was by acclamation selected to preside. A committee
headed^by Laney ,was appointed by McCluskey to meet with a Guild committee
to discuss what steps could be taken to "get the paper open, [and] to see if we
couldn't go back to work." Laney, the other members of the committee, and
Fred Rucker an advertising solicitor, who later became President of the Inde-
pendent, met with the Guild committee, Helfer, Shipley and McGinnis. After a
rather lengthy discussion, without any progress toward a settlement of the strike,
the conference adjourned, with the understanding that the Guild would send a
committee to a general meeting to be held that evening in the Courthouse.
Under the chairmanship of McCloskey the "Associated Post Employees" on
September 9, held an evening meeting in the Courthouse. It is unnecessary
here to discuss at length the details of the meeting. McCluskey after calling the
meeting to order, announced that for reasons he did not care to state it would
be necessary to select someone else as Permanent Chairman. Holmes, respond-
8 See Section E and F, infra.
The facts related in this section, unless otheiwise indicated, are undisputed
10 This finding of fact, rests upon the credible testimony of Ceravolo. He testified that
"We [McCluskev, Ceinvolo, and Mm ray] wont out I think, out to Miss Bowman's house,
to get her, to call up the employees to be tip at the Courthouse at 2 : 30." Although Mc-
Cluskey testified that after leaving the Courthouse, he went down town and met his wife,
,the undersigned does not credit his testimony. Ceravolo's testimony is consistent with
McCluskey's anti-union conduct and it is reasonable to assume that McCluskey was
sufficiently interested in the success of the meeting, to be ceitain that the employees
attended.
220 DECISIONS OF 4N-ATI1O AL LABOR RELATIO\IS BOARD
east's purchasing agent, nominated Rucker for Chairman Nominations were`
then closed. )=tucker took the chair and as McCluskey left the rostrum he'stated
"Well, you know what we are here for, we are here to fight, fight, fight." After
Helfer, Guild committeeman, had talked to the group presenting the Guild's
position, Rucker announced "We are going back to work regardless." At this
point in the meeting the Guild representatives withdrew Shortly thereafter
the meeting adjourned. The following day, September 10, Editor Mills directed
McCluskey not to attend any more meetings, because "he [Mills] didn't want
..,y trouble." McCluskey testified he did not "officially" attend any further
meetings, adding however, that later on the same day he "listened in, up from
the rear."
On September 10, Rucker, designating himself, as president of the "Associated
Post Employees" signed an application for a meeting room in the Courthouse,
-stating thereon that the purpose was "to discuss problem of getting back to
work." The record does not disclose the details of what transpired at this
meeting McCluskey and Laney attended the meeting It is evident that after
ine close of the meeting, Rucker decided to formalize the "Associated.=Post
r uipioyees" organization. -
On September 11, Rucker who was then President of the "Associated Post
Employees" engaged R. H. Brown, an attorney, to incorporate the organization.
under the name of the "Alabama Newspaper Employees, Inc." Brown testified
that at the time of the engagement Rucker was President of an association
which had no corporate status. Brown, during a discussion by counsel , stated
in part, "I might make a statement to at least throw a little light on it. This
thing [the Independent] was gotten up in quite a turmoil, it was fast, and we
were going this way and that way, all in the same direction, and the organization
was completed in a hurry, and I didn't get into the picture until, I think it was,
the 12th, and I had nothing to do at first with any of the receipts and disburse-
ments." Thus , Brown was aware of the existence of an organizatiton , having
Rucker as its president, with funds available, to 'formalize it by incorporation."
The testimony of Alyce Billings Walker, an employee active in behalf of the
Independent, who attended the first meeting' on September 9, supports, the fact,
that on this date, it was agreed by those promoting the meeting, that the back-to-
work movement was the first step, in the formation of the Independent. She
testified, that the first meeting of the Alabama Newspaper Employees, Inc,
was on September 9, and later in explanation of this testimony, stated that it
was "generally understood" that on this date an organization was to be formed,
but that the actual organization was not completed until, a few days later when
Brown was employed
'r Theie was considerable testimony in the record , bearing on the conduct and activities
of Rucker , president of the Independent , and R. IT. Brown , whom he had engaged as its
attorney. This evidence related to events occurring subsequent to the foiniation of the
Independent, and to its financial transactions , including the source and amount of its
income, amount of disbursements and information of a related character . Details "of
these transactions were lacking and the evidence on this phase of the case was incomplete,
due to the refusal on the part of both of these persons , called as witnesses, to disclose
the information sought or to produce documentary evidence bearing on these matters.
The evidence sought was the object of the siibpenas daces tecum pieviously referred to
herein ( See footnote 1, supra ) Evidence was also introduced of the publication, by
the Independent , in a local newspaper , of a full page advertisement , as well as, of an
edition of a paper known as "Fair Play." Both of these were derogatory to the Guild
The undersigned does not consider it necessary to make findings on the inconclusive state
of this evidence, on these natters , in view of the findings , heretofore made, of participa-
tion in, and interference with , the formation of the Independent, by supervisory employees
of the respondent.
BIRMINGHAM POST COMPANY 221
Upon the foregoing facts and on the basis of the record in its entirety, the
undersigned concludes and finds that the Independent stemmed directly from
activities of the management through the organizing efforts, and various support-
ing acts, of supervisory officials and employees.
2 Interference with the Independent-activities of supervisory officials
It has been established above, that McCloskey and other management repre-
sentatives, planned and directed the organization of the Independent. Subse-
quently, certain of these supervisors continued their interest in that organiza-
tion by participating in its activities.
McCluskey lent his assistance to the Independent, by occasionally dropping
in at its office in the Molton Hotel and "sat around and talked to the boys and
girls up there." This practice of McCloskey was notice to the "boys and girls"
that he still wanted them "to fight" the Guild.
On September 20, Laney upon his return from a few, days, vacation, at the
invitation of Alartha Leland, secretary to Peer, the circulation manager, attended
a meeting of the Independent at the Molton Hotel. At this meeting attended
by 50 to 100 employees, Rucker prepared a petition requesting the.respondent to
defuse the demand of the Guild for a Guild shop. Laney in the presence of the
cmployres signed the petition Laney's attendance at this meeting and his
endorsement of the petition interfered with the employees' privilege to freely
and without compulsion from the ,respondent, determine their organization's pro-
grain on matters reserved exclusively to them by the Act.
3. Conclusions as to the Independent
It is evident from the foregoing that the respondent through the activities of
its supervisory, officials has not permuted its employees their free choice of a
bargaining representative and that the Independent is not and never has been
the freely chosen representative of respondent's employees.
The activities of McCluskey, Lane, and other employees clearly aligned with
the respondent led to the formation of the Independent, and reveals a planned
procedure designed to set up an independent labor organization. The Inde-
pendent came into beuiz at the instigation and insistence of McCluskey, as a
means of discouraging membership' in the Guild and defeating its efforts to
neutralize his hostility to that organization. Under the circumstances above
related, particularly in view of respondent's knowledge of its supervisors' activi-
ties, it was incumbent upon the respondent to openly disavow their acts, so as to
leave no doubt in the minds of the employees, that the Independent did not occupy
it favored position as a result of the acts of these supervisors. Not only did the
respondent fail to do this, but it made no other effort to dispel any belief of the
employees that membership in the Independent would evoke its approval or that
tailure to join would incur its displeasure.
The undersigned concludes and find,, that the respondent dominated and inter-
fered with the formation and administration of the Independent and that the
respondent thereby has interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
F. Other acts of niterference, restraint, and coe2cion
During the strike, Laney, mail room foreman, approached J. R. Walker, a
circulation department employee, who was on the picket line and remarked
222 DECISIONS OF NAT,IIONAL -LABOR RELATIONIS BOARD
"I a in surprised you lined tip with such a gang On or about September 22,
Laney, requested Alyce Billings Walker, to accompany him and Hunter Allen.
an employee in the circulation department, to the home of James Henry, another
circulation department employee Walker advised Laney that, she was not
particularly desirous of going, but she consented when Laney replied "Well, we
may be able to get these boys to reconsider the issues and come back to work."
Henry, as Laney and the others entered his home, questioned the purpose of their
visit. Henry told them that if the visit was for the purpose of getting him to
withdraw from the Guild or cutting the boys' throat on the picket line, they
should leave. Laney attempted to convince Henry that the Guild should give up
the demand for a Guild shop and return to work. During the conversation Henry
asked Laney why he wasn't elected president of the Independent Laney replied
that he was an official and not eligible to be president. Laney, as he was leaving,
told Henry that he was on the wrong side of the fence 13
William Bennett, a reporter and photographer, testified, without contradiction,
that during the strike Fred Holmes, respondent's purchasing agent, told him that
"the Guild was organized and controlled by communists: if he was a member of
the Guild he would leave town."
The undersigned finds that by the above activities of Laney and Holmes in
attempting to" discourage membership in the Guild and encoui age membership
in the Independent, 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 rJF'FEC' OF THE UNFAIR LABOR PRACTICES UPON COMMERCE]
The undersigned finds, that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and-substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce
v. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair labor
practices . the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
The undersigned , having found that the respondent has dominated and inter-
fered with the formation and administration of the Independent, in order to
effectuate the policies of the Act and free the employees of the respondent from
such domination and interference and the effects thereof, which constitute a
continuing obstacle to the exercise by the employees of the rights guaranteed
them by the Act , will recommend that the respondent withdraw all recognition
from the Independent as the representative of any of the respondent 's employees
for the purpose of dealing with the respondent concerning grievances, labor
disputes , wages, rates of pay , hours of employment and other conditions of
employment and completely to disestablish it as such representative
The undersigned , has also found that the striking employees ceased work as
a consequence of the respondent 's unfair labor practices and that the strike was
prolonged by other unfair labor practices . In order to effectuate the policies of
the Act, it will be recommended that the respondent offer the striking employees
reinstatement , upon application , to their former or substantially equivalent posi-
tions. without prejudice to then seniority and other rights and privileges. Such
12 This finding of fact is based upon the credible and uadenied testimony of walker.
12 This finding is based upon the credible and uncontiovei ted testimony of Henry
BIR'II^\ GHA1vI POST COMPANY 223
reinstatements shall Abe effected in the following Manuel- All employees hired
by the respondent on of after September 6, 1941, the date of the commencement
of the strike. shall if necessaiy to provide employment for those to be offered
reinstatement, be dismissed. If, thereupon, despite such reduction in torte, there
IS not sufficient employment available for the reniai nig employees, including
those to be offered reinstatement, all available positions shall be,distributed
among such employees without discrimination against any employee because of
his union affiliation o- activities, following such system o1' seniority or other
procedure as has heretofore been applied in the conduct of the respondent's busi-
ness . Any employees remaining after such distribution for whom no employment
is immediately available shall be placed upon a preferential list, with priority
determined among them by such system of seniority or other procedure as has
heretofore been followed by the respondent. and shall thereafter, in accordance
with such list be offered employment in their former or substantially equivalent
positions as such employment becomes available and before other persons are
hired for such work.
The undersigned, will also recommend that the respondent make whole the
employees to be offered reinstatement by reason of the respondent's refusal, if
any, following the receipt of this Intermediate Report; to reinstate them or place
them upon a preferential list, as provided above, by payment to each of them of
a suns of money equal to that which he would noifinally have earned as wages
during the period from five (5) clays after his application for reinstatement to
the date on which he was reinstated or placed upon a preferential list, less his
net earnings," if any, during said period.
The respondent's entire course of conduct„including its many and varied forms
of interference, restraint, and coercion, and its domination and support of the
Independent, discloses a fixed purpose on the part of the respondent to defeat
self-organization and its objects. Because of the respondent's'unl:uvtul conduct
in the past and its underlying' purpose, the undersigned is convinced that there
is a real danger of the respondent engaging in other related unfair labor practices
proscribed by the Act, in the future The preventive purposes of the act will be
thwarted unless the undeisigned's recommendation is co-extensive with the
threat In order, therefore, to make effective the interdependent guarantees of
Section 7 of the Act, to prevent a i ecurrence of unfair labor practices, and thereby-
to minimize the strife which burdens and obstructs commerce, and thus effectuate,
the policies of the Act, the undei signed will recommend that the i espondent cease
and desist from in any manner infringing the rights gu:u'auteed in Section 7
of the Act.
Upon the fotegoiilg findings of tact and upon the entire record in the case, the
undersigned makes the following:
CONCI USrONS or LAW
1 Birmingham Newspaper Guild, affiliated with the American Newspaper Guild,
is a labor organization within the mneaumng of Section 2 (5) of the Act.
14'Ry "net earnings" is meant euungs less expenses, such as for Iianspoitation, ioom,
and board, incurred by an enplonee in connection nvith obtaining nwoik and woilang el e-
where than for the respondents, which would not have been incurred but for has unl.ueful
discharge and the consequent necessity'of his seeking employment elsewhee See Matter
of Crossett' Lumber Company and United Brotherhood of Cmpenters and'Joneis of
Amanica, Lumber and Saii,m ll 11'oit,ers Union, Local 2590, S N L. R. B 440 Moines
received for work pen formed upon Fee al, State, county, municipal, or other rn of k n eliof
projects shall be considered as earnings See Republic Steel Con poiatioi v , latio,ial
Labor `Relatioas Board , 311 U S. 7.
224 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
2. Alabama Newspaper Employees, Inc., unaffiliated, is^a labor organization
within the meaning of Section 2 (5) of the Act.
- 3 By dominating and interfering with the formation and administration of
Alabama Newspaper Employees, Inc., the respondent has engaged in and ' is
eiigitging in unfair labor practices within the meaning of Section 8 (2) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
The aforesaid unfair' labor practices aie unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
. RECOMMENDATIONS
vii the basis of the foregoing findings of fact and conclusions of law, the under-
signed recommends that 'I lie'' respondent,' Birmingham Post Company ( Birming-
ham, Alabama) and its officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) Dominating, interfering with the formation or administration of Alabama
Newspaper Employees, Inc., or the formation or administration of any other labor
organization of its employees:
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights of self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing or to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effeetuate the policy. of the Act:
(a) Withhold all recognition from Alabama Newspaper Employees , Inc., as
the representative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment or other conditions of employment, and 'completely disestablish
Alabama Newspaper Employees, Inc, as such representative;
(b) Upon, application, offer to those employees who went on strike on Septem-
ber 6, 1941, immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges, in the manner set forth in the section entitled "The remedy" above,
and place those employees for whom employment is not immediately available,
if any, upon a preferential list in the manner set forth in said section, and
thereafter, in said manner, offer them employment as it becomes available;
(c) Make whole the employees specified in sub-section (b) above for any loss
of pay they may suffer by reason of the respondent's refusal, if any, following
the receipt of this Intermediate Report, to reinstate them or place them upon a
preferential list, pursuant to sub=section (b) above, in the manner set forth in
the section entitled "The remedy" above ;
(d) Post immediately in conspicuous places on every floor throughout the
respondent's Birmingham plant, and maintain for a period of at least sixty (60)
consecutive days, notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 (a) and (b) hereof; and (2) that it will take the affirmative
action set forth in paragraph 2 (a), (b), and (c) hereof;
(e) Notify the Regional Director for the Tenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
B1RMI\GLIAM POST COMPANY 225
It is further recommended that unless on or before ten (10) clays from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and 1egulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record or
proceeding, (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof., As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days after the (late of the entry of the order transferring the
case to the Board.
JAMES C., BATTEN,
Trial Examiner.
Dated January 27, 1943.