WILBUR, Circuit Judge.
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 Plollywood, 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.’
“Killoran also testified that at a time when she was posting a notice on the Guild bulletin board, she was told by Swisher that ‘the Guild was not a reputable organization,’ and that soon after her participation in the strike, Herbert Sternberg, classified-advertising manager, told her, in substance, ‘what a fool I was, and what a monkey I made of myself, and how terrible the C. I. O. was and the Guild was and the strikers were.’ Killoran’s testimony as to the remarks of Young, Swisher, and Sternberg was uncontradicted and we find it to be true, as did the Trial Examiner.”
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 em[972] ployees 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 :
“Immediately after the editorial employees returned to work, however, they were deprived of their bylines because in the words of Swisher, the city editor, the ill will created during the strike made it difficult for readers,, particularly advertisers, to see the names of various former strikers without becoming alarmed at the name, recalling old feelings from the strike.’ We find that the strikers were deprived of their bylines because of their participation in the strike.”
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 “V. The remedy”, the Board states: “We have found that [973] the respondent discriminatorily deprived the strikers of their bylines after the strike. It is not clear from the record whether or not the respondent has restored their bylines to the strikers. We shall order the respondent to restore their bylines to these employees in the event that it has not already done so.”
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WILBUR, Circuit Judge.
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 Plollywood, 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.’
“Killoran also testified that at a time when she was posting a notice on the Guild bulletin board, she was told by Swisher that ‘the Guild was not a reputable organization,’ and that soon after her participation in the strike, Herbert Sternberg, classified-advertising manager, told her, in substance, ‘what a fool I was, and what a monkey I made of myself, and how terrible the C. I. O. was and the Guild was and the strikers were.’ Killoran’s testimony as to the remarks of Young, Swisher, and Sternberg was uncontradicted and we find it to be true, as did the Trial Examiner.”
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 em[972] ployees 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 :
“Immediately after the editorial employees returned to work, however, they were deprived of their bylines because in the words of Swisher, the city editor, the ill will created during the strike made it difficult for readers,, particularly advertisers, to see the names of various former strikers without becoming alarmed at the name, recalling old feelings from the strike.’ We find that the strikers were deprived of their bylines because of their participation in the strike.”
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 “V. The remedy”, the Board states: “We have found that [973] the respondent discriminatorily deprived the strikers of their bylines after the strike. It is not clear from the record whether or not the respondent has restored their bylines to the strikers. We shall order the respondent to restore their bylines to these employees in the event that it has not already done so.”
At the time oí 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 re-discharge of Karl Schlichtcr, one of those employees.
Discharge of Leonard Lugoff.
The findings of fact of the Board contain the following:
“Under the circumstances we are impelled to the conclusion, as was the Trial Examiner, that Lugoff was discharged not because of the reasons advanced by the respondent but because of his activities in behalf of the Guild.
“We find that the respondent, by discharging Leonard Lugoff on March 30, 1940, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Guild and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.”
In considering this question it should be emphasized that the right to terminate a contract of employment is a constitutional right of the utmost importance. The mere discharge of an employee with or without reason is therefore not evidence of intent to affect labor unions or the rights of employees under the National Labor Relations Act. That there must be more than mere discharge is clearly recognized by the Board in its findings concerning the discharge of Lug-off. We merely quoted the conclusions at which the Board arrived. The conclusion is preceded by a discussion of the evidence and an argument based thereon occupies thirteen pages of the findings. The argument contained in the findings is based upon the proposition that Lug-off, shortly before his discharge, circulated a petition for the inclusion in the Guild of employees in the classified advertising department. It should be stated that no other employee was discharged because of the petition although it was [974] prepared iby another employee who was very active in the union. We find no substantial evidence of discrimination in the discharge of Lugoff. Circumstances that merely raise a suspicion that an employer may be activated by unlawful motives are not sufficiently substantial to support a finding.
The fact that a discharged employee may be engaged in labor union activities at the time of his discharge, taken alone, is no evidence at all of a discharge as the result of such activities. There must be more than this to constitute substantial evidence.
The employer advanced as the reason for the discharge that Lugoff was an inefficient employee. He had ibeeri in the employ of the company since September 1932. He had been discharged for low production in his department in August 1938. This was after the respondent had entered into a contract with the Guild settling the strike, June 30, 1938.
Lugoff did not go out on the strike. For that reason he was expelled from the Guild. In seeking reemployment iby the respondent Lugoff contended that he should not be worse off than the strikers who had been restored to employment. He was reemployed and was furnished a written statement dated August 22, 1938, stating, “You will be retained in the present position with final decision to be made on January 1, 1939. The intervening period will be probationary.”
In view of the fact that Lugoff was not discharged until May 30, 1940, the Board contends that the claim of respondent that his discharge was pursuant to the agreement under which he was reinstated must be rejected. Even if this be true it does not establish the cause of discharge or justify a finding of unfair labor practice.
Inasmuch as we hold there is no substantial evidence to support any of the claims of unfair labor practice, it follows that the conduct of the respondent cannot be held to have affecteed interstate commerce within the meaning of the National Labor Relations Act.
Order set aside.