Hearst Corp.

National Labor Relations Board - Board Decisions

Nov 28, 1952

101 N.L.R.B. 643 (N.L.R.B. 1952)

THE HEARST CORPORATION 643
THE HEARST CORPORATION , AND HARRY G. HuBERTH, SR., HARRY G.
HUBERTH , JR., AND MARTIN F. HUBERTH , JR., PARTNERS , DOING BUSI-
NESS AS HUBERTH & HUBERTH and BUILDING SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 32K, A. F. OF L. Case No. 2-CA-
1695. November 28,1952
Decision and Order
On August 15,1951, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in certain unfair labor practices, and recom-
mending that they cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also found that the Respondents
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of the complaint with respect
to such allegations. Thereafter, counsel for the Union filed exceptions
to the Intermediate Report, and a supporting brief, and counsel for
the Respondents filed a brief in opposition to the Union's exceptions.
On September 24, 1951, counsel for the Union filed a motion to reopen
the hearing for the purpose of receiving testimony based upon an
affidavit by Martin J. Baggott, purporting to establish that the five
employees, whose cases were dismissed by the Trial Examiner, were
discriminatorily discharged. Counsel for Respondents filed a brief in
opposition to this motion to reopen the hearing.
On February 11, 1952, the Board issued a notice to show cause why
the record should not be so reopened. On February 21, 1952, counsel
for the Union filed a memorandum in support of the motion to reopen
the hearing, and counsel for Respondents filed a statement in opposi-
tion to the motion.
On March 4, 1952, insufficient cause to the contrary having been
shown, the case was remanded by the Board to the Trial Examining
Division to reopen the record to take additional evidence with respect
to the statements in Baggott's affidavit to the effect that five employees
were discharged in a discriminatory manner.
A reopened hearing was conducted before Trial Examiner David
London on April 17, June 10, and September 3, 1952. On October 6,
1952, the Trial Examiner issued a Supplementary Intermediate Re-
port, attached hereto, finding that the statements in Baggott's affidavit
were not supported by credible testimony, and further finding no oc-
casion to change or amend the findings of fact, conclusions of law,
and recommendations contained in his Intermediate Report of August
15, 1951. Thereafter, counsel for the Union filed exceptions to the
Supplementary Intermediate Report, and a supporting brief, and
101 NLRB No. 139.
242305-53-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for Respondents filed a brief in opposition to the Union's
exceptions.
The Board x has reviewed the rulings made by the Trial Examiner at
both hearings, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Supplementary Intermediate Report, exceptions
and briefs, and the entire record in the case and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
Order
Upon 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 Respondent The Hearst Corpora-
tion, and Respondent Harry G. Huberth, Sr., Harry G. Huberth, Jr.,
and Martin F. Huberth, Jr., Partners, doing business as Huberth and
Huberth, and each of them, their officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in Building Service Employees In-
ternational Union, Local 32K, A. F. of L., or any other labor organiza-
tion of their employees, by discharging, laying off, or in any other
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment.
(b) Interrogating their employees regarding membership in any
labor organization or in any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of the right to
self-organization, to join or assist Building Service Employees Inter-
national Union, Local 32K, A. F. of L., or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain
from any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor or-
ganization 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) Make whole Bryan McSweeney, Chester Milza, and Daniel
McNulty for any loss of pay they may have suffered as a result of
the discrimination against them, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Murdock, Styles,
and Peterson].
THE HEARST CORPORATION 645
(b) Upon request make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, personnel records and reports, and all other records necessary
to analyze the amounts of back pay due.
(c) Respondent Hearst shall post at its Brooklyn plant, in both
the old and the new building, copies of the notice attached to the
Intermediate Report and marked "Appendix A." 2 Respondent
Huberth and Huberth shall post at its general offices in New York
copies of the notice attached to the Intermediate Report and marked
"Appendix B." 2 Copies of said notices, to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by the representatives of the respective Respondents, be posted
immediately by each Respondent upon receipt thereof and maintained
by it for a period of sixty (60) consecutive, days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by each Re-
spondent to insure that notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURThIER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Respondents discriminatorily dis-
charged William Maloney, Albert Cosgrove, Joseph Clark, Robert
Castoro, and Luis Casanova.
3 This notice shall be amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner " In the caption thereof. In 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."
Intermediate Report
STATEMENT OF THE CASE
Upon a charge and an amended charge, duly filed by Building Service Em-
ployees International Union, Local 32K, A. F. of L., hereinafter called the Union,
the General Counsel of the National Labor Relations Board, by the Regional
Director for the Second Region, issued a complaint dated May 10, 1951, against
Respondents The Hearst Corporation, hereinafter called Hearst, and Harry G.
Huberth, Sr., Harry G. Huberth, Jr., and Martin 11 Huberth, Jr., partners, doing
business as Huberth and Huberth, hereinafter called Huberth. The complaint
alleged that Respondents have engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, 29 U. S. C. Supp. I, Sec. 151, et seq., herein called the Act. Copies of
the complaint, charge and amended charge, and notice of hearing were duly
served on both Respondents.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondents : ( 1) On or about November 9, 1950 , jointly and severally,
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatorily discharged the eight employees named in the margin 1 and
have since that date, failed and refused to reinstate them to their former or
substantially equivalent positions or employment; (2) that since November 9,
1950, Respondents interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act by (a) interrogating them
concerning their union affiliations ; (b) warning them to refrain from assisting,
becoming members of, or remaining members of, the Union; (c) threatening
them with discharge or other reprisals if they joined or assisted the Union; (d)
offering and promising improved working conditions to certain of their em-
ployees for the purpose of discouraging membership in, or assistance to, the
Union. By its answer duly filed, Respondents denied each and every allegation
in the complaint'
Pursuant to notice, a hearing was held at New York, New York, on June
21-22, 1951, before the undersigned Trial Examiner. The General Counsel,
Respondents, and the Union were represented by counsel. Full opportunity to
be heard, examine and cross-examine witnesses, and introduce evidence per-
taining to the issues was afforded all parties. Respondents' motion to dismiss
made at the close of the evidence is disposed of in accordance with the findings
that follow. The General Counsel's motion, made at the close of the hearing,
to amend the pleadings to allege that the employees who were discharged at the
behest of the Pressmen's Union were therefore discriminatorily discharged by
virtue of Section 8 (a) (3) of the Act is denied. Since the close of the hear-
ing, a brief has been received from Respondents which has been duly considered.
Upon the entire record in the case and from my observation of the witnesses
at the hearing, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
During the calendar year 1950, the Hearst Corporation, in the course and
conduct of its business operations, caused to be purchased and delivered to its
plant in Brooklyn, New York, newsprint, chemicals, and other materials having
a value in excess of $750,000, of which approximately 90 percent was transported
to said Brooklyn plant in interstate and foreign commerce from States of the
United States other than the State of New York, and from foreign countries.
During the same period, the Hearst Corporation, in the course and conduct of
its operations, caused to be manufactured products having a value in excess of
$1,000,000, of which, products having a value of approximately $250,000 was
transported from said Brooklyn plant in interstate and foreign commerce to
States of the United States other than the State of New York. At all times
from 1937 to January 1951, Huberth and Huberth was continuously engaged as
managing agent of the physical properties of said Brooklyn plant for Respondent
Hearst' I find that Respondent Hearst is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
1 Bryan McSweeney , Chester Milza , William Maloney, Albert Cosgrove , Joseph Clark,
Daniel McNulty, Robert Castoro, and Luis Casanova.
2 At the hearing, Respondents stipulated that Respondent Hearst on or about November
9, 1950, discharged the employees named in footnote 1, supra.
8 Respondents in their brief argue that because there was a failure on the part of the
General Counsel to prove the allegation of his complaint that "during the year 1950
Respondent Huberth and Huberth rendered services to Respondent Hearst valued in excess
of $50,000," that the Board therefore has no jurisdiction over Huberth and Huberth. I con-
clude that the allegation of the complaint referred to is surplusage . No claim was made
either in the complaint , or during the hearing , that Huberth and Hubertb wax other than an
THE HEARST CORPORATION 647
H. THE LABOR ORGANIZATION INVOLVED
Building Service Employees International Union, Local 32K, A. F. of L., is
a labor organization within the meaning of Section 2 (5) of the Act, admitting
to membership employees of Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
As previously indicated, Hearst, since 1937, has maintained a building at 540
Atlantic Avenue, Brooklyn, New York, hereafter called the old building. The
basement and first and second floors of this building were used by Hearst in
connection with the publication of the Daily Mirror, one of its newspapers.
Four large presses occupy most of the basement and first floor , while the second
floor was used as a mail room, storeroom, washroom, etc. The third, fourth,
and fifth floors of this building were rented to various tenants and contain
washrooms maintained by Hearst. Management of the building and responsi-
bility for its maintenance were vested in Huberth until January 1951, when the
task was assumed by Allied Maintenance Company.
In July 1949, Hearst began excavation for, and construction of, another
building, hereinafter called the new building, on a site facing Pacific Avenue,
at the rear of, immediately adjacent to, and ultimately connected with, the old
building. Though construction began in July 1949, the new building had not
been completed at the time of the hearing. Installation of six presses, however,
was commenced in July 1950 and completed in the following October. All the
dischargees involved herein were engaged as porters , maintenance men, or ele-
vator operators in one or both buildings afore-described. According to the tes-
timony of Martin J. Baggott , superintendent of maintenance for Huberth during
all times relevant herein , the porters and maintenance men were engaged in
the following tasks : Waxing of tables in the mailing room ; maintenance of
heating system , elevators , fuel and oil pumps, and other maintenance equipment
in the building ; cleaning of washrooms, including those on the third, fourth, and
fifth floors of the old building , general cleaning of basement and all floors occu-
pied by the Mirror, mopping of pressroom floors, washing down motors, and
washing of walls and ceilings , cleaning up presses , press pans , paper conveyors,
catwalks , and vents , baling of all waste paper, storing of rolled paper, some
painting and necessary repairs, and all other work required for the proper main-
tenance and upkeep of the properties . The workload of the porters was in-
creased with the construction of the new building due to the fact that workmen
engaged in that work were allowed to use the washroom and toilet facilities in
the old building. As the new building became enclosed and required porter work,
it was performed by the same crew.
Sometime in September or October 1950, when the maintenance crew con-
sisted of approximately 24-27 men, all of them, with the exception of 2 or 3,
"got together and decided to join the Union." McSweeney and one Otto Cerny
contacted a representative of the Union and obtained application blanks for
membership in that organization together with a "certification signature form"
designating and authorizing the Union to act as their collective-bargaining agent.
Twelve of the employees signed the "certification" on November 4, 7 signed on
November 6, and 2 on November 8. All of the men alleged to have been dis-
criminatorily discharged had signed the documents.
agent for Respondent Hearst . Under those circumstances , the value of the services
rendered by Huberth and Huberth is immaterial . Its liability herein is that as agent of
Hearst, and not as principal . See Section 2 (2) of the Act.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the morning of Thursday, November 9, Baggott individually questioned
McSweeney, Milza, McNulty, and Otto Cerny as to whether they had joined or
"signed anything" for the Union. All of them replied affirmatively.' During
the afternoon of the same day, Baggott, according to his own testimony, offered
each of the eight alleged dischargees a pay cheek for services to the end of the
week and told each employee he would have to let him go because of lack of
work. The men were usually paid at the end of the week. Milza, McNulty,
Maloney, and Casanova refused to sign a statement tendered them indicating
that they were released for the reason assigned by Baggott, and the latter
therefore declined to give these men their checks. McSweeney and eight other
employees brought action in a magistrate court to recover the amount due them.
About a week later, McSweeney, Milza, Maloney, and Casanova received the
checks previously tendered them by Baggott.
A picket line was established about the premises on November 10 and was
maintained until about January 5, 1951. At approximately that time, manage-
ment of the buildings was assumed by Allied Maintenance Company, and though
Baggott remained on the premises for a short time thereafter, the superin-
tendency of the building was taken over by the representative of Allied Main-
tenance.' Of the approximately 23 or 24 maintenance men who went out on
strike, approximately 21 returned to work on or about January 5. Included in
the returning group were McSweeney, Milza, Maloney, and Casanova.
Concluding Findings
The determinative issue on this phase of the case is whether the eight em-
ployees named in the complaint were discharged for the reasons alleged by the
General Counsel, or were laid off, as claimed by Respondents, for economic rea-
sons. Respondents urge that Baggott reduced the staff without discrimination
because of retrenchment ordered by his superiors and because there was a
substantial reduction in the workload.
From July 1950 to November 1950, some of the maintenance men were engaged,
first, in applying grease to the new presses to avoid rust and corrosion, and later,
preparatory to test runs of the presses, in removing the grease. During that
same period, demands were made on Baggott in behalf of the Pressmen's Union
that the grease operation was work that should be done by members of that
Union and not by maintenance men. Finally, on November 5, he was instructed
by Charles Murphy, "bead boss of the Pressmen" in both the New York and
Brooklyn plants of the Mirror, not to further permit the maintenance men to
clean the presses. According to Baggott, however, at least four porters con-
tinued to do this work until November 9. Thereafter the work was done by
"fly-boys," presumably from the Pressmen's Union.
Baggott also testified that during the week ending October 14, 1950, he had 22
men engaged in maintenance work and that "the work still was piling up."
As a result, by November 9, 27 men, including 3 porters hired after November 1,
were engaged in that work. This increase was brought about notwithstanding
instructions Baggott received late in October from Warren Kelly, general man-
ager of the Mirror, and William Detlef, chief accountant, to economize and "cut
the crew" as soon as possible. By November 9, the bricklayers, plumbers, steam-
4 This finding is based on the credited testimony of the four employees named in the
text. Baggott admitted that at the time in question, he asked McNulty, McSweeney,
Cerny, and John Fitzpatrick whether they had received one of the cards which he
(Baggott) heard were being handed out to be signed by the men.
5 At the time of the hearing, Baggott was employed by the Daily Mirror in uptown New
York.
THE HEARST CORPORATION 649
fitters, sheet metal workers , and carpenters had completed their work in the
new building. While the completion of this work reduced the labor necessary
to keep the old building clean and in operating condition , several of the em-
ployees testified that by reason of the additional maintenance work entailed by
the progressive completion of the new building , which structure they also serv-
iced , there was no diminution in over-all workload at the time of the layoffs on
November 9 or thereafter to the time of the hearing. Maloney testified that 21
men returned to work in January after the strike and that since then the number
has varied "up and down."' At the time of the hearing, the number of main-
tenance employees , whose identity was not disclosed , was 16 . Though the record
does not disclose how long prior to the hearing Allied maintained the 2 buildings
with a staff of 16 men , Cerny testified that after Baggott left in January 1951,
and when the crew numbered approximately 15, Baggott 's successor asked him
to make a survey to determine how many more men were needed to do the work.
Though Cerny reported that it would require 5 more employees , they were not
engaged.
While a composite view of all the testimony raises a suspicion as to the real
motive for the layoffs of November 9, particularly because two new porters were
hired by Baggott on November 6, 1950, and one on November 1, 1950 , on the entire
record I am not persuaded that the reduction of the staff on or about November
9 was without economic justification.
However , notwithstanding the finding just made , and whether or not a re-
duction of the staff was in fact economically justified , the record establishes that
McSweeney , McNulty, and Milza were discriminatorily selected for layoff.
McSweeney was the only fireman employed on the premises during the daytime,
and regardless of the need to otherwise reduce the force, it is apparent that
the building could not be maintained without the services of such a fireman.
When he was reemployed after the strike , he devoted 2 days to help in cleaning
up the building , which "was in awful shape, ... and then went back to [the]
boiler room ." When Baggott was asked why McSweeney was selected for layoff,
he asked to see the company records, and then testified , in most general terms
that McSweeney "was incompetent , wouldn't give [him] a day's work , [which]
wasn 't enough and was unsatisfactory ." McSweeney , however , had never been
warned that his work was unsatisfactory , after the strike was reinstated to
his old job , and was so employed at the time of the hearing.
McNulty, since October 1949 , operated the elevator which served all five
floors in the old building . There was not contention that this service was
eliminated on November 9. He was subsequently returned to that work and
was so engaged at the time of the hearing . Baggott testified that on three
different occasions unidentified tenants of the building told him that McNulty
was intoxicated . Baggott investigated and found this not to be true, although
he did smell liquor on McNulty 's breath . At the time of the layoff on November
9 Baggott gave as the reason , "lack of work , the new presses are finished."
When McNulty remonstrated that he had "no dealings with the presses," Baggott
ignored the protest and remarked that his action was pursuant to orders from
New York . Earlier in the day , after asking McNulty whether he had joined
Though Baggott made use of the Company 's payrolls in testifying as to the number of
men employed during the week ending October 14 , 1950, Respondents did not offer in
evidence its payrolls for any other period so as to establish more clearly the variation In
the number of men employed from July 1950 to the date of hearing . In view of the fact
that Baggott's services as superintendent at the buildings in question were terminated
early In January , his testimony that he hired no replacements for the dischargees of
November 9 cannot be considered as refutation of Maloney's uncontradicted testimony
that since January 5 or 6 the number of maintenance men varied "up and down" from 21.
'650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and having received an affirmative reply, Baggott said to him, "I
hope the Union feeds you."
Milza was employed by Baggott as a porter on April 9, 1949, and continued
in that work until he was laid off with the other men on November 9, 1950.
During the morning of that day, Baggott, upon inquiry, ascertained that Milza
had made application to join the Union. When Baggott laid Milza off in the
afternoon he told him it was due to lack of work. Milza complained that Joseph
McCormack, who had been hired only 3 days earlier, on November 6, was being
retained and said to Baggott : "I can't understand it ; if there is a lack of work,
why should I get laid off." Baggott's only reply was : "That's the way it goes."
At the hearing, Baggott testified he selected Milza for layoff because he "was
a pretty loud sort of fellow" and had engaged in a fight with a machinist
about 2 months prior to November 9. Milza apparently fractured his hand
during the fracas, but Baggott testified he "paid the man in full for the time
be was off" and, though the complaint went to the New York office, Milza was
retained on his job until November 9 and was reengaged after the strike.
On the entire record, I find that McSweeney, McNulty, and Milza were selected
-for termination because they had joined, or made application to join, the Union
and that by such conduct Respondents violated Section 8 (a) (3) and 8 (a) (1)
,of the Act.
Among the factors leading to that conclusion are the following :
1. The interrogation of the men on the morning of the layoff as to whether
or not they were affiliated, or sought affiliation, with the Union and by which
conduct Respondents violated Section 8 (a) (1) of the Act. If these layoffs
were made solely for the reasons assigned by Respondents, there was no need
1 o make the inquiry concerning union membership.
2. The timing of the layoffs, occurring, as they did, within a few hours
after Baggott ascertained that these men had joined the Union, or made
application to do so.
3. The precipitate nature of the layoffs on a Thursday, the day Baggott
ascertained that the men had made application to join the Union, whereas
the prior layoffs were made effective at the end of the pay period on Saturady
With respect to the other five men a alleged to have been discriminatorily
laid off, a different situation exists. Here, the General Counsel has failed to
establish by a preponderance of the evidencte that the layoffs were imposed
for a reason forbidden by the Act. Absent the illegal motive, an employer has
the unfettered right to discharge, layoff, or discipline his employees for, or
without, cause. And before it can be found that the employees were discriminated
against because of their union membership or activity, it must be established
that the employer had knowledge of such affiliation or activity. It is with
respect to this knowledge that the General Counsel has failed to establish
his case insofar as the 5 employees under present consideration are concerned.
'r The finding on the last-quoted remark is made on the credited testimony of McNulty
and that of Milza and Maloney who overheard the remark . Baggott's denial and attempted
explanation of the remark were unconvincing.
8 The finding as to the effective day of previous layoffs Is made on the credited testimony
of Milza, McNulty, Maloney, and Cerny. Baggott, in attempting to refute their testimony,
cited the discharge of George Leary, William Sutton, Sebastian Marino, and Chris Varoumis,
all of whom, Baggott testified , were discharged on days other than Saturday . Baggott
further testified, however, that Leary and Sutton were fired because of drunkenness, Marino
because he was "disorderly." With respect to Varoumls, he testified the midweek dis-
charge was for "a just cause . . . he might have been incompetent , wasn 't giving me a
day's work. Let's put it that way. I think it was." All of these men were paid off by
petty cash, while the men laid off on Thursday, November 9, were tendered checks which
they ordinarily would not have received until the following Saturday.
0 William Maloney, Albert Cosgrove, Joseph /; lark , Robert Castoro, and Luis Casanova.
THE HEARST CORPORATION 651
While it is true that the General Counsel proved that these men made applica-
tion to join the Union on or about November 5, the record does not establish
that Respondents had knowledge of such activity concerning any of them.
Though some evidence was received that prior to a State board election in
December 1949, Baggott questioned Maloney and Casanova concerning their
union membership, I find those incidents too remote and not sufficiently con-
nected with the ouster of the 5 men under consideration, almost a year later,
to supply the necessary link 10
On the entire record, therefore, I find that the General Counsel has not
sustained the burden of proving by a preponderance of the evidence that
Maloney, Cosgrove, Clark, Castoro, and Casanova were laid off on November
9, 1950, for the reasons alleged in the complaint.
Except for the conduct heretofore found to have been violative of the Act,.
I find that the General Counsel has not sustained the burden of proving the
other allegations of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with the operation of Respondent Hearst described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that Respondents discriminatorily laid off Bryan McSweeney,
Chester Milza, and Daniel McNulty on November 9, 1950, until on or about
January 5, 1951. I shall therefore recommend that Respondents make each of
them whole for any loss of pay he may have suffered by reason of such dis-
crimination, by payment to each of a sum of money equal to that which he
normally would have earned as wages during the period of his layoff, less his
net earnings" during said period. The back pay shall be computed in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
Respondents, upon request, shall make available to the Board payroll and other
records to facilitate the checking of the amount due. All three of said last-
named employees having been reinstated on or about January 5, 1951, no order
for reinstatement is required or made. However, the character and scope of the
unfair labor practices committed by Respondents indicate an intent to defeat
self-organization of its employees. It will therefore be recommended that
Respondents cease and desist from in any manner interfering with, restraining,
or coercing their employees in the exercise of the rights guaranteed by the Act 1S
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Respondent Hearst is engaged in commerce within the meaning of Section 2
(6) and (7) of the Act.
10 Of these five, only Maloney and Casanova appeared as witnesses.
11 Crossett Lumber Company, 8 NLRB 440, 497-98.
12 May Department Stores v. N. L. R. B., 326 U. S. 376.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
3. By discriminating in regard to the tenure of employment of Bryan Mc-
Sweeney, Chester Milza, and Daniel McNulty, Respondents have engaged in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interrogating its employees with respect to membership in the Union,
and by the discriminatory conduct afore-mentioned, Respondents interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act, and thereby have engaged in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
(6) Respondents have not engaged in the unfair labor practices otherwise
alleged in the complaint.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in BUILDING SERVICE EMPLOYEES
INTERNATIONAL UNION, LocAL 32K, A. F. OF L., or any other labor organiza-
tion of our employees, by discharging, laying off, or by discriminating in
any other manner in regard to their hire and tenure of employment, or any
term or condition of employment.
WE WILL NOT interrogate our employees concerning membership in the
above union or any other labor organization, or in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION, LocAL 32K, A. F. OF L., or any
other labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection or to refrain from
any or all 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.
WE WILL make whole Bryan McSweeney, Chester Milza, and Daniel Mc-
Nulty for any loss of pay suffered as a result of the discrimination.
All of our employees are free to become or remain members of the above-named
union, or any other labor organization We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment because
of membership in or activity on behalf of any such labor organization.
THE HEARST CORPORATION,
Employer.
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.
THE HEARST CORPORATION 653
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in BurLrnNa SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL' 2K, A. F. OF L., or any other labor organization
of our employees, by discharging, laying off, or by discriminating in any
other manner in regard to their hire and tenure of employment, or any term
or condition of employment.
WE WILL NOT interrogate our employees concerning membership in the
above union or any other labor organization, or in any other manner inter-
fere with, restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32K, A. F. OF L., or any
representatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL make whole Bryan McSweeney, Chester Milza, and Daniel
McNulty for any loss of pay suffered as a result of the discrimination.
All of our employees are free to become or remain members of the above-
named union , or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment because
of membership in or activity on behalf of any such labor organization.
HARRY G. HUBERTH, SR., HARRY G. HUBERTH, JR.
and MARTIN F. HUBERTH, JR., partners, doing
business as HUBEBTH AND HUBERTH,
Employer.
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.
Supplementary Intermediate Report
On August 15, 1951, the undersigned Trial Examiner issued his Intermediate
Report finding, in part, that Respondents had discriminatorily discharged Bryan
McSweeney, Chester Milza, and Daniel McNulty in violation of Section 8 (a) (3)
of the Act, but that the General Counsel had not sustained the burden of proving
the allegations of the complaint with respect to William Maloney, Albert Cos-
grove , Joseph Clark, Robert Castoro, and Luis Casanova.
On September 24, 1951, counsel for the Union filed a motion with the Board
to reopen the hearing and record herein by reason of "newly discovered evidence"
which would "conclusively prove that the other five men, [last named above],
were equally selected for discriminatory discharge." The Union supported its
motion with an affidavit executed on September 4, 1951, by Martin J. Baggott,
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who testified for Respondent at the previous hearing, and which affidavit in
substantial part reads as follows :
On or about November 9, 1950, I received a telephone call from Mr. Ken-
nedy, said manager of Huberth and Huberth , managing agents of the prem-
ises. Mr. Kennedy told me that the men had joined Local 32K once again,
that he was against the union as much now as ever and that he would break
the union in the building again . He authorized me to discharge the ring-
leaders of the union drive . I submitted the names to him , they were:
Chester Milza , William Maloney , Daniel McNulty , Robert Castoro, Luis
Casanova, Bryan McSweeney, Albert Cosgrove, and Joseph Clark. He told
me to say that I was discharging them for lack of work, although I always
resisted the efforts to cut down the staff. At the hearing at the National
Labor Relations Board , questions were asked of me whether any "Daily
Mirror" [Hearst] officers had spoken to me about the efforts of the men
to organize the premises . I truthfully answered , "No." No questions, how-
ever, were asked of me as to whether Mr. Kennedy or anyone else in Huberth
and Huberth had asked me to help break the union drive. In view of the
fact that I was an employee of the company in an executive capacity, I
did not feel constrained to nor would I have been permitted to volunteer the
above information.
After the parties were given an opportunity to show cause why the record
should not be reopened, the Board, on March 4, 1952, ordered that the instant
proceeding be remanded to the Trial Examining Division and that the record
be reopened "for the sole purpose of receiving additional testimony in the light
of the statement of Martin J. Baggott in his affidavit dated September 4, 1951
and to prepare and issue an appropriate Supplementary Intermediate Report."
Pursuant to the order last afore-mentioned, the undersigned was again duly
designated as the Trial Examiner to conduct the reopened hearing. On March
7, 1952, an order was filed and served setting the date for said reopened hearing
on March 24, 1952. Due to the illness of Baggott, the hearing was twice post-
poned on motion of the Union and was not convened until September 3, 1952.
At that time, the General Counsel, Respondent, and the Union appeared and were
represented by counsel. Full opportunity to be heard, examine and cross-
examine witnesses, and introduce evidence pertaining to the matter under con-
sideration was afforded all parties. The General Counsel, however, not only
declined to assume the "initiative" at the reopened hearing, but refrained from
examining or cross-examining Baggott and Kennedy, the only witnesses who
testified, and took no active part in the proceeding. The burden of establish-
ing the truthfulness of the matters set out in Baggott's affidavit was left to, and
assumed by, the Union. Respondents' motion to dismiss the instant proceeding
as not authorized by law was denied. All parties waived oral argument. Since
the close of the hearing, briefs have been received from Respondent and the
Union which have been duly considered.
It was to be expected from the contents of the Union's motion to reopen the
proceedings and Baggott's affidavit, together with the tenor thereof and the
implications inherent therein, that the reopened hearing would present te^ti-
mony by Baggott of such a nature and character as to cast doubt upon, or
require amendment of, the findings made in the Intermediate Report. The
hearing produced no such results. Baggott was a most unsatisfactory witness.
With due regard for the sensibilities of the situation in which Baggott was
placed, I found him to be unduly evasive and his testimony to be, in many respects,
contradictory not only of the statements contained in his affidavit, but contra-
dictory to his testimony at the orig'.nal hearing and not mentioned in his
AMERICAN STEEL FOUNDRIES 655
affidavit. Admittedly, there were portions of his testimony which, standing
alone on the cold record , appear to lend credence to some of the allegations
contained in his affidavit . However, consideration of all his testimony and its
contradictions , coupled with regard for his demeanor on the witness stand, have
brought me to the conclusion that the material allegations in Baggott's affi-
davit are not supported by credible testimony, and I so find.
Accordingly , I find no occasion to change or amend the findings of fact, con-
clusions of law, and recommendations contained in my Intermediate Report of
August 15, 1951.
AMERICAN STEEL FOUNDRIES, ALLIANCE WORKS and INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Case No. 8-RC-
1619. November 08,1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Charles A. Flemming, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act for the following reasons:
The Petitioner requests a unit of machinists, apprentices, and
helpers at the Employer's Alliance Works. It contends that these
employees constitute a craft group to which the Board has customar-
ily granted separate representation, notwithstanding a history of col-
lective bargaining on a broader basis. In addition to challenging the
appropriateness of the requested unit as a true craft group, the Em-
ployer and Intervenor urge that the history of collective bargaining
on a multiplant basis precludes the establishment of the proposed unit.
The Alliance Works is one of 8 plants operated by the Employer.
It is a steel foundry engaged in the production of steel castings used
in various railroad and other equipment. The Employer employs
there some 600 production and maintenance employees, of whom 100
are maintenance employees making up the building and equipment
1 United Steelworkers of America , CIO, was permitted to intervene upon the basis of
its contractual interests.
101 NLRB No. 131.