National Labor Relations Board v. Citizen-News Co., 9995.
| Decision Date | 16 April 1943 |
| Docket Number | No. 9995.,9995. |
| Citation | 134 F.2d 970 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. CITIZEN-NEWS CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, and Joseph B. Robison and Helen F. Humphrey, Attys., N. L. R. B., all of Washington, D. C., and Maurice J. Nicoson, Atty., N. L. R. B., of Los Angeles, Cal., for petitioner.
Willis Sargent, of Los Angeles, Cal., and Harlan G. Palmer, of Hollywood, Cal., for respondent.
John A. Cronin, of Newark, N. J. (Abraham J. Isserman, of Newark, N. J., of counsel; Elliott L. Biskind, of New York City, on the brief), for intervenors, Los Angeles Newspaper Guild and Leonard Lugoff.
Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.
The National Labor Relations Board has petitioned for the enforcement of its order against the Citizen-News Company. Its complaint alleges that the Citizen-News Company of Hollywood, California, is engaged in business affecting interstate commerce and that it "has interfered with the self organization of its employees and with their freedom of choice of representatives for collective bargaining."
Eleven specific acts are alleged to have constituted such interference, and two discharges "and other acts" are alleged to have discriminated in regard to the hire and tenure of employment of its employees and to have discouraged membership in the Los Angeles Newspaper Guild, in violation of § 8(3) and of § 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(3) and (1).
The respondent, Citizen-News Company, the employer, claims that seven of the acts of interference charged were expressions of opinion or arguments which the employer had a right to make under its constitutional right to free speech. The statements of the employer found by the Board to be objectionable as an unfair labor practice, are those by Young, Swisher and Sternberg, to which we now refer.
The Board found that "some time after the strike May and June, 1938, Patricia Killoran, when she sought to explain her failure to cover an assignment, T. Harwood Young, the respondent's business manager, inquired `How could I believe anything after all the things that you have done?' When asked to whom he referred, Young replied, `all of you.' Killoran thereupon accused him of referring to the Guild and Young replied, `Well, as a matter of fact, I can't talk about those things because I am not allowed to,' and after Killoran replied, `Well, I can talk about them,' Young added that `his brother had been a very active union man, that he knew more about unions than I would ever know, and he knew about good unions, like the Brotherhood, but that I was just not to be trusted, after the things that we had done.'
The finding of the Board on the question of foregoing opinion and arguments by the employer are as follows: "By the statements of Young, Swisher and Sternberg, and by its action in depriving the strikers of their bylines, the respondent has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 29 U.S.C.A. § 157."
This decision that the statements above quoted ipso facto "interfered with, restrained and coerced its employees" was rendered by the Board July 16, 1941, prior to the decision of the Supreme Court, December 22, 1941, in the case of National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348.
The Board, at the time of its decision herein, had held in the case of the Virginia Electric and Power Company that advancement of arguments against a labor union or the expression of unfavorable opinion concerning it, or advising the employees against joining, was per se an unfair labor practice, and its above finding was evidently made on that basis.
The Supreme Court, however, in the case of N. L. R. B. v. Virginia, etc., supra, affirmed the right of an employer to freely express his opinion to his employees as one guaranteed to him by the Constitution. The Supreme Court held that the employer had a right to make statements for the express purpose of preventing the employees from joining a particular union so long as the employer did not threaten or take action to prevent or coerce its employees in the exercise of their rights under the National Labor Relations Act. We have in this case the same situation that was considered by the Supreme Court in the Virginia case, namely, a finding by the Board that by certain specific statements of the employer it had been guilty of coercion.
We have nothing more in the finding above quoted except as to bylines, which we will presently consider. Furthermore, it is worthy of note that at the time the statements were made the employees of the respondent were already organized, had negotiated a contract in May 1938, had struck May 13, 1938, and had negotiated and signed a contract settling the strike and fixing the terms of employment. In what way can it be said that the above expressions of opinion coerced or tended to coerce the employee?
It is true that in the proclamation and notice condemned by the Board in the Virginia case there was a statement by the employer of a hands-off policy. The Supreme Court did not base its conclusion upon that fact. Moreover, the case at bar is replete with the employer's statements that it did not intend to interfere.1
The subject of bylines, which appears in this same finding, requires further consideration not only because it is thrown into the above finding as a make-weight but also because the Board ordered that the employer "restore to the strikers the bylines of which they were deprived following the strike in May, 1938." The findings supporting this order are as follows:
The Board, it will be observed, accepts the statement of Swisher (as testified to by Roger Johnson) as to the purpose of respondent in doing away with bylines, namely, that it would antagonize the respondent's advertisers. The finding that the strikers were deprived of their bylines because of their participation in the strike is evidently based upon the proposition that the strike resulted in the determination to do away with bylines. It is not found nor contended that the action was intended to punish the strikers. This is manifest by a consideration of the evidence on the subject of bylines shown in the margin.2
Under the heading , the Board states:
At the time of the order with reference to the bylines all of the editorial employees were members of the Guild and had been for months prior thereto. There was, therefore, no discrimination against Guild members in the deprivation of bylines for all the members of the Guild were treated alike and there were no other employees in that department.3 There is no reason to doubt that the temporary deprivation of bylines was made in good faith to accomplish a business result entirely unobjectionable so far as the purpose of the Labor Act is concerned.
In considering whether or not this court should order bylines restored several factors should be noted. First, they had been restored long before the proceedings were instituted before the Board. Second, the issue of bylines was dealt with by the contract dated July 31, 1940.4 Third, the complaint did not charge discrimination or coercion by reason of depriving the editorial writers of the right to use bylines. Fourth, the findings of the examiner do not deal with the subject of bylines. Consequently, exceptions thereto did not raise the question.
In the absence of such issue and apparently without notice to the employer the Board made its finding and order in regard to bylines. No evidence was introduced by the employer in regard to that subject and the only explanation is that derived from the testimony of Roger C. Johnson, called by the Board, concerning the above explanation made by Mr. Swisher.
The Board found in favor of the respondent on certain allegations of the complaint and these findings dispose of these charges so they need only be mentioned.
The Board found there was no discrimination or unfair labor practice shown by onerous working conditions imposed upon discharged Guild members who were re-employed temporarily pending determination by the Board of the legality of their discharge, or by the subsequent redischarge of Karl Schlichter, one of those employees.
Discharge of Leonard Lugoff.
The findings of fact of the Board contain the following:
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