*1 Board, 305 U.S. Relations National Labor L.Ed. 126. 197, 217, 225, 59 S.Ct. voluntarily ceased employer had There the spies union employment of 230, 59 page 1936, 305 U.S. at November or The Boárd’s L.Ed. 126. S.Ct. practices from such and desist to cease der later, 1937. November year was made 206, 83 page at disposed of Supreme Court 126. The here, 305 contention made 217, 83 page page 230, 59 at in respect stating: “With L.Ed. 126 say that companies espionage, the dustrial investigating ‘outside employment voluntarily had been sort agencies’ of November, prior to discontinued en it was rightly urges Holding sim resumption.” bar titled to D., Steel Calumet ilarly v. are N.L.R.B. 371; Cir., Gas etc., Pueblo Cir., N.L.R.B., 118 F.2d v. Fuel Co. & . 304, 307 un- been considered Because the case has estab- principles so subversive der these decisions lished my opinion that it should Court, it is de novo. considered reheard LABOR RELATIONS BOARD
NATIONAL CO. CITIZEN-NEWS v.
No. 9995. Appeals, Ninth Circuit.
April 2, 1943. April 16, Opinion
Dissenting 1943.
See, also, 134 F.2d *2 Counsel, replied, Watts, you.’ Ernest thereupon B. Gen. ‘all Robert Killoran Gross, Counsel, Gerhard accused referring A. Associate him Gen. to the Guild and Counsel, Young replied, fact, and Arkel, ‘Well, Gen. P. Van Asst. as a matter of Humphrey, I Joseph B. Helen F. can’t I things Robison and talk about those because Washington, D. Attys., B., to,’ am N. L. R. all allowed and Killoran re- C., Nicoson, Atty., plied, N. R. them,’ L. ‘Well, Young and Maurice I can talk about J. , Cal., petitioner. Angeles, B. of for added very Los that ‘his brother had been a man, active union that he knew more about Cal., Angeles, and Sargent, Los Willis unions know, than I would and he ever Cal., Palmer, Hollywood, Piarían G. unions, knew good about like the Brother- respondent. hood, trusted, I just that was not to Cronin, Newark, (Abra- A. N. John J. things after the that we had done.’ Newark, Tsserman, J.,N. ham J. “Killoran also testified a time Biskind, counsel; York of New Elliott L. when she posting a notice on the intervenors, Los City, brief), board, Guild bulletin she was told Newspaper Leonard Angeles Guild and Swisher that reputable ‘the Guild was not a Lugoff. organization,’ par- and soon her WILBUR, ticipation Before Sternberg, Herbert MATHEWS, Judges. Circuit classified-advertising manager, her, told substance, ‘what a fool I and what monkey I myself, made of and how ter- WILBUR, Judge. rible the C. I. O. was and the Guild was Relations Board has The National Labor and the strikers were.’ Killoran’s testi- its order petitioned for enforcement mony as to Young, the remarks of Company. Its the Citizen-News Sternberg was uncontradicted and we alleges Citizen-News true, find to be as did the Trial Ex- California, Plollywood, is en- Company of aminer.” affecting com- gaged interstate business The finding of the ques- Board on the interfered and that “has merce opinion tion of foregoing and arguments employees and with organization of its self employer are “By as follows: representatives of choice of freedom the statements of Young, Swisher and bargaining.” for collective Sternberg, its action in depriving alleged are to have Eleven acts the strikers of their respond- interference, and two dis- constituted such with, ent has interfered restrained and alleged “and are charges other acts” coerced its regard hire have discriminated rights guaranteed in Section 7 employment of its and tenure of U.S.C.A. [29 § 157].” membership discouraged and to have This decision that the statements above Newspaper Guild, Angeles in vio- the Los quoted ipso facto “interfered 8(3) 8(1) lation and of Na- § § strained and coerced its employees” Act, 29 tional Labor Relations U.S.C.A. rendered July 16, Board (1). § to the decision Supreme Company, respondent, Citizen-News Court, December in the case employer, claims that seven the acts of' of National Labor Relations Board v. charged expressions interference Virginia Electric & Power opinion arguments which the' em- right make ployer had under its con- at the time of its right speech. decision to free The state- stitutional herein, had held in the Vir- ments of ginia Electric and Company Power prac- objectionable as an unfair labor to be arguments advancement of against a tice, Young, labor Swisher and union or of unfavorable Sternberg, to which we now refer. it, concerning or advising em- The Board found that “some time after ployees against joining, per se an [May June, 1938], Patricia practice, and its above find- Killoran, sought explain when she her evidently made on that basis. assignment, failure cover an T. Harwood respondent’s Young, manager, business Supreme Court, however, inquired ‘How anything could believe etc., the case of N. L. R. Virginia, B. v. things you after all supra, have done?’ affirmed the of an referred, When asked to he Young freely whom express his opinion to his em- sideration not thrown ployees by the guaranteed to him as one make-weight into the above Constitution. The but also ordered to make had a *3 the the express purpose the “restore to of statements for the bylines deprived fol- joining of which were employees preventing from the The lowing May, em- the in 1938.” as the strike particular a ployer union so as fol- to this order are supporting take action not threaten did or employees the lows : prevent coerce its or Nation- the of their em “Immediately the editorial in this have Relations Act. We al Labor however, work, ployees returned to that was case the same situation bylines because their Supreme in the Vir- Court the sidered editor, city the words of the case, namely, by the Board ginia a during the strike ill will created the the statements certain that readers,, particularly ad it for difficult guilty of coercion. had employer it vertisers, various names of to see the becoming alarmed strikers without former nothing have more We name, feelings from recalling bylines, which at the old quoted as to except above Furthermore, strikers were the strike.’ We find deprived presently we will consider. bylines of their the their worthy the time note that it is employees participation the strike.” the were made statements already organized, respondent the observed, accepts The it bewill May a contract negotiated had to (as statement of Swisher testified the 13, 1938, and had ne- May had struck purpose of by Roger Johnson) as to settling signed a contract gotiated and bylines, away with respondent in doing fixing em- the terms of the strike re namely, antagonize that it would way can it be said In what ployment. finding that spondent’s The advertisers. expressions of above were, by deprived of their the strikers ? tended coerce coerced or to participation of their lines evidently upon proposi is strike based proclamation It true that in the is in the de resulted condemned notice away It to do with :by termination Virginia case there was statement a nor ac contended that policy. a not hands-off The punish to the strikers. tion was intended did not base its conclu- Moreover, This manifest a consideration upon sion that fact. bylines subject of employer’s evidence on the replete with state- at bar is margin.2 intend it did not to interfere.1 shown ments remedy”, appears heading Under the “V. requires finding, further con- the states: have found same “We in this any “Hollywood Citizen-News, Johnson, impor- “Q. North Mr. is there California, by-line Avenue, part Hollywood, tance attached to the on the Wilcox newspaper part Yes, Hollywood 3, 1939, No man? November it A.. pride management professional newspaper of a has not indicated tice. story. it man to his name on a It favors have will indicate authorship ownership. particular part of dicates of action on the course by-lines given joining join “Q. After the strike were toward or not people ing had out who on strike? union.” immediately copy Gossip” No, not after. of “Office under date A. In a following strike, appeared after, April “Q. After anything respect that? Was “Notice”: by-line always recog- people? management eliminated for has “The recognize Yes, it it eliminated. and will continue to A. nized explained join Who that? “Q. Mr. Swish- of its or Well, join er or Mr. Palmer? A. recall Mr. a union.” explanation the ill-will Swisher’s cre- “How about during by-lines stories, people ated the strike made difficult used on their particularly readers, advertisers, to see them? A. Yes. some importance name of various former strikers with- is the of a What “Q. becoming name, newspaper profession? Well, A. out at the recall- feelings pay way publisher cheap the strike.” is a money. you honor instead respondent discriminatorily deprived found there was no dis- bylines practice crimination or their the strikers shown by onerous working imposed clear from the record strike. is not conditions re- whether members who were or re-employed We pending to the strikers. temporarily their deter- stored legality restore mination shall order the Board of the discharge, subsequent their to these Schlichtcr, already so.” has not Karl one of those event employees. ref At oí the order with the time erence to the all of editorial *4 Discharge Lugoff. of Leonard employees of Guild were members findings of fact of Board The con- and had for months thereto. following: tain the therefore, There discrimination no “Under deprivation against in Guild members circumstances we are im- pelled conclusion, to the members of was as all the Trial Examiner, that Lugoff alike Guild were treated and there was discharged not department.3 because of the in that reasons employees by no other advanced is no to doubt but reason because of his ac- tivities temporary bylines was in behalf of the Guild. accomplish busi good in to a made faith respondent, “We find that dis- unobjectionable entirely so ness result charging Lugoff Leonard on March is purpose of the Labor far as the 1940, discriminated regard to his hire concerned. employment, and tenure of thereby dis- couraging court membership or not this considering whether in the In interfering several restraining, coercing should order restored First, rights should be noted. exercise of the factors guaranteed proceed- before the Section 7 been restored Board. before the ings were instituted In considering question this Second, dealt was issue emphasized should be the right to July 31, 1940.4 dated with the contract terminate a employment contract of is a Third, dis- charge complaint did not constitutional the utmost im of de- reason crimination coercion portance. The discharge mere of an em priving the writers of editorial ployee with or without reason is there Fourth, bylines. use fore evidence not intent affect labor deal the examiner do or the unions bylines. Consequently, ject exceptions the National Labor Relations Act. That question. did not thereto raise there must be more than mere discharge ap- In the absence such issue recognized clearly is by the Board in its parently without notice findings concerning of Lug- made its merely quoted off. We the conclusions No evidence regard at which the Board arrived. The con -by regard troduced preceded by clusion is a discussion of the only explanation is argument evidence and an based thereon Roger testimony of derived from the occupies pages thirteen the findings. Board, Johnson, C. called The argument contained in the findings explanation cerning the above proposition based is off, shortly that Lug- Mr. Swisher. discharge, before circu petition lated a for the The Board favor of the inclusion in allegations the Guild of spondent on certain classified ad department. findings dispose vertising It should be and these stated employee discharged need be men- no charges other these so petition although because of it tioned. containing matter, an similar rial on a conformity opinions, own with his was no discrimination. there January any employee nor shall In be the contract publisher agrees provided: his consent.” used without “5. provision required same contained in shall be to have that no July dated published own name mate- under his contract Judge
prepared (dissenting). iby employee who another no sub- very find active in the union. We As stated in dissent to another Board stantial of discrimination evidence proceeding respondent, if the Lugoff. discharge of Circumstances majority opinion’s holdings, hereafter dis- merely suspicion that an em- a raise cussed, circuit, prevail are to this mo- by unlawful ployer may activated be technique will employed have to be a new sufficiently substantial tives are defending counsel clients support finding. in National Labor Relations cases. important A. The decides that a em The fact question law in of federal in labor union ac conflict ployee may engaged Circuit, decision of the National discharge, Second of his tak at the time tivities Labor Relations Mfg. Co., v. Yale Towne & alone, all of dis evidence no en charge cit a case of such activities. the result . ignored opinion ed to That con in its be more than this There must com holds where the Board’s evidence. substantial stitute plaint, charged acts are as the reason employer advanced *5 employer, charges “and also an discharge Lugoff was for the respondent inter these acts and other did employee. He had ibeeri efficient restrain, employ its fere and coerce September company since employ of rights guaranteed in the exercise ees discharged low been He had 1932. Act,” par no bill of by Section 7 of the August department in his production filed, may hear and ticulars is determine another unfair labor respondent had This 1938. practice of with the contract into a entered a like character. 30, 1938. settling the June case, reciting certain strike. Ift the instant on the go out Lugoff did coercion, complaint expelled of restraint and acts charges, he For that reason acts, iby Re- and reemployment “and these and other seeking In Guild. the the with, restrain, he interfere spondent did Lugoff contended respondent the exercise of the strikers off than coerce its be worse should Act, employment. rights guaranteed in Section restored who had He was engaging in and is thereby engage did furnished reemployed and was 1938, 22, mean- practices within the labor August in unfair ing dated statement written pres- retained in the of Section subsection be stating, “You will be made final decision position with ent de- 8(1), 158(1), 29 U.S.C.A. § peri- intervening January practice for unfair labor fines it to be “an probationary.” be od will with, re- interfere (1) To an — strain, coerce or Lugoff In fact that view of guaranteed in Section 30, 1940, May until » ‡ respond- that the claim of Board contends pursuant discharge ent that his made no motion for here respondent under which he was agreement “other of these acts” particulars a bill rejected. if this must be Even instated respondent Nor did coercion. or restraint it not establish the cause does be true rehearing on for a move the unfair justify or surprise. ground of practice. labor holding I therefore dissent from the hold as we there is no Inasmuch is a “factor” to considered in review- it support any of the evidence to stantial order ing the Board’s to restore the practice, fol- of unfair claims complaint charge did not “the discrim- of the the conduct lows depriving or coercion reason of ination inter- to have affecteed cannot be right editorial writers to use meaning of commerce within state Fourth, bylines. the exam- Relations Act. Labor National with the do not deal iner set aside. Order Consequently, exceptions thereto did not question. In the absence such raise the Judge. apparently without notice to issue its dis- for reasons stated in I dissent bylines.” regard to opinion. order senting ma- judgment I also dissent from the failure facts for the power —a Cir- jority to consider Second Congress.” denied cuit case so above. See cited also National Labor Relations Board Co., 1939, v. Waterman S. S. import B. The decides another 208, 209, 226, 493, 84 L.Ed. 704. point ant federal law conflict in Con profession the decision of the journalism, In the the edi- Labor Re solidated Edison Co. v. National torial byline writer’s to a is the lations appear to have his name published over or under the per holding matter gives he has written. tinent that professional the Board orders recognition of the writer’s val- acts on committing desist from public inue the estimation of ad- he past and not acts in the evidence of such existing him having emerged dresses. It marks files accusing when the union anonymity from the of a mere unknown Board. with the Nothing hack. be more could coercive having discriminatory against writer so majority opinion states that “In con- reputation public established his sidering whether or not this court should deprive position than to him of the he has restored several factors profession. earned (cid:127) First, they should be noted. had been re- proceedings stored before the published undisputed It is instituted before the Board.” the editorials of certain of its writers 85 L.Ed. sion substituted its circuit court’s saying, said, “The inferences to be drawn were for holding that hound al Labor Relations Board v. Link-Belt Labor Relations Board v. company exercise of the more porting Ct. straint and tinent proceeding against stitutes its inferences for 8, 1943. sions of lations Labor Relations Board v. Citizen-News the federal No. a similar decision of the ings solidated Edison Co. v. National Labor Re- The decisions so in conflict are National C. The It is not a factor to be noted in determin- Board and bylines 571, 576, 9994, Cir., were instituted before the Board. Con- rational testimony Lines, 1937, Board, supra, “We question S.Ct. reasons discussed in its justification 368, where wrong union would be an Appeals in reaching majority coercion.” had 206, inferences of the Board continued 82 L.Ed. refusal not the 584, 597, employees’ ceased as not in conflict with the deci- 134 F.2d 83 L.Ed. the Court judgment for the Board’s order 305 Court. decides an to enforce courts,” substantial, before petitioner, National “Interference, recognition U.S. majority if not equally obstacle to the Pacific in which, in at reversed the of that conclu Board’s order under the head of rem- the “The and Nation rejects per- filed pages 217, the Court dissent to important I dissent that the disputed proceed- and sub- order, proceeds Grey April 58 S. of a sup- Co., re- findings, 7 of the edy,” the Act.” sion of straining, es, within and of the in the strike. their We find name, recalling respondent has depriving the strikers ployees were strikers difficult for ill will created the words of the in which ers, to see ference, restraint, This is followed “We find that “Immediately after and interference, restraint, authors’ names and that after a strike [*] coerced right. bylines where deprived majority opinion ignores is engaging Boar.d rights law: “3. returned to without contained in a later to treat a mere that the strikers Act, they joined they and [*] readers, meaning coercing *6 held, guaranteed in Section 7 of rights of their interfered with, during names Board states: “We have becoming [*] By and feelings in unfair under guaranteed * * * work, particularly of their participation interfering of their bylines, coercion,” its employees description the editorial em- of various former [*] bylines and coercion, and were Section the title from the strike.’ city editor, however, they portion has the exercise its [*] deprived the finding because restrained, that: action advertis- engaged of these made it practic- Section conclu- “Inter- of the [*] ‘the discriminatorily one objection but one to but advertiser found that the deprived bylines Yet, any evi- writer. of their without substantial strikers support it, record dence to overrules clear from strike. It the. respondent has restored the finding of the Board “that whether or not the bylines shall or- We their bylines the strikers. their were strike,” bylines participation their restore respondent to der the has contrary finding in the event that the court’s stitutes to these ”* * * (cid:127) tem- “There is no reason to doubt already so. bylines was made porary deprivation of depriva- majority then discusses accomplish a result good faith to business “discrimination,” as bylines tion of pur- entirely unobjectionable so far as had found if the Board discrimination in violation pose concerned.” of the Labor 8(3), of Section Ed- attempt overrule Consolidated under coercion of restraint instead National Labor Relations ison Co. v. Act, “At the stating, 8(1) of the Section deny supra, a Board order because by- with reference time of practice ceased unfair labor were the editorial lines all of This dissent commented above. and had of the Guild members addressed to the statement further was, there- prior thereto. months majority opinion, in connection with mem- fore, discrimination no in the restored, that were claim that for all deprivation of bers dealt with “the issue of the alike treated the Guild the members 31, 1940,” quoting July the contract dated employees in other no ”* r paragraph * * following from that contract department. publisher agrees that no “5. The Incidentally, holding1 dissent from this published under required to have shall be that there can be no discrimination containing an any name material his own is, no “discrimination —that conformity opinion not in * * * any regard to term condi- opinions, nor shall the own employment” many where out five without his any employee be used employees are so disrated none of the sent.” rest affected as to term or condition *7 agreement Here is no writers' use the employment. agree Nor could I merely if even if the editorial writers were the way. used will be used in a certain employees, were not discriminated To summarize and in dissent this against by change such a in the conditions companion case, 9994, it No. is that the employment. I take it that opinions majority great industry (1) in the two cases show phrase discrimina- concerns picking from the record among and not discrimination those facts which would lead a refusal employees. prayers enforcing for an of the Board’s Primarily, majority’s I dissent from decree; ignoring (2) testimony, accept the refusal to pressed argument, brief and deprivation of coer- enforcement; require (3) such would restrain cive act to the editorial writers the substitution of the court’s inferences in another evi- joining strike. The equally if not more ra- on which the relies is that dence findings of inferences and tional respondent’s had stated one of attempt establish in Labor and Relations cases employee that the “ill-will cre- to another principles in this circuit during the strike made difficult for ated opposition to the decisions of the direct advertisers, readers, particularly to see the Court, cited to this court and dis- former without name of various becoming opinions. dissenting in the two Cf. cussed name, recalling dissenting in National La- also the feelings from the strike.” Board v. Germain Seed & bor Relations Cir., support decided Feb- is no evidence to Plant this contrary, hearsay. ruary shows On the record really coercion. a mere in view dictum