Evening News Association

National Labor Relations Board - Board Decisions

Sep 21, 1981

258 N.L.R.B. 88 (N.L.R.B. 1981)

88 DECISIONS OF NATIONAI
The Evening News Association and Local 372, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
7-CA-16526
September 21, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 20, 1981, Administrative Law Judge
Robert A. Gritta issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answer to the General Counsel's
exceptions and a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
Members Jenkins and Zimmerman would not rely, as did the Admin-
istrative Law Judge, on Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), to establish that the General Counsel has the burden
of proving a prima facie case; this burden has been his since the enact-
ment of the statute.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge: This
case was heard on February 7, 1980, in Detroit, Michi-
gan, based on a charge filed by Local 372, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (called herein the Union), on
June 27, 1979, and a complaint issued by the Regional
Director for Region 7 of the National Labor Relations
Board on July 27, 1979.1 The complaint alleges that The
Evening News Association (called herein Respondent)
violated Section 8(a)(1) and (3) by refusing to transfer an
employee to another position within its organization be-
cause of her union activity which resulted in her termi-
I All dates herein are in 1979 unless otherwise specified.
258 NLRB No. 20
- LABOR RELATIONS BOARD
nation. Respondent's timely answer denied the commis-
sion of any unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. A brief was submit-
ted by Respondent and duly considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and upon substantive, reliable evidence con-
sidered along with the consistency and inherent probabil-
ity of testimony, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that The Evening News Association is a Michigan cor-
poration engaged in the printing, publishing, and distri-
bution of a daily newspaper in Detroit, Michigan. Juris-
diction is not in issue. Respondent, in the past 12 months,
in the course and conduct of its business operations had
gross revenues valued in excess of $500,000. Further, Re-
spondent subscribed to various interstate news services,
published nationally syndicated features, and advertised
in its papers various products distributed and sold nation-
ally. I conclude and find that The Evening News Associ-
ation is an employer engaged in commerce and in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
1l. BACKGROUND FACTS
Respondent publishes the daily newspaper known as
The Detroit News. Said publication, at present, is ac-
complished from two locations. One is the historical
office building in Detroit and the second is a facility in
Sterling Heights, Michigan. For several years, various
operations have been in the process of transfer from the
office building to the Sterling Heights facility. Adminis-
tratively, the operations are divided among several de-
partments. One such is the general services department
managed by Jack Brown. Brown's department has the
responsibility of the phone system among other house-
keeping functions. 2 Employee relations for general serv-
ices are handled by the personnel department managed
by Sandra Price. The employee relations of the editorial
department are handled by William Tremblay, the ad-
ministrative editor, subject to the collective-bargaining
agreement with the Newspaper Guild.
The Detroit facility phone system is composed of a
large main switchboard and a smaller city room board in
the editorial department. The main board is of the
modern Centrex variety operated by pushbuttons, where-
as the city board is the classical cord-and-plug type of
2 The Union was unsuccessful in March in an attempt to represent the
general services employees, including the phone operators.
EVENING NEWS ASSOCIATION
old. Prior to July, these two boards were operated by six
full-time employees including a chief operator and an as-
sistant chief operator and a part-time relief operator. P.
D'Haene, with 25 years' service, is the chief operator
and is assisted by G. Brent, who had 8 years' service.
The remaining four operators, in descending order of se-
niority, are: M. LaFaive, 6 years' service; C. Pearce, 3
years' service; Vanessa Carter, 2 years' service; and J.
Ugarte, I year's service. D'Haene and Brent operate ex-
clusively the main board whereas the other four women
alternate on the city board with two one-girl shifts each
day. In addition. M. Retigan, the part-time operator, re-
lieves both boards for lunch and breaks.3
As part of a continuing program to update and mod-
ernize equipment, the city board was changed to a
touchmatic system which increased the line capacity and
at the same time was more efficient. Due to the increased
efficiency of the phone operation, the city board was
combined with several clerical functions resulting in only
three employees needed for the new function. The new
function was labeled clerical and placed within the edito-
rial department under the supervision of Tremblay.
Editor Tremblay had the responsibility for recruiting, in-
terviewing, hiring, firing, and servicing the Guild con-
tract for editorial employees. Pursuant to the contract,
Tremblay interviewed unit employees responding to the
new clerical opening in editorial. Tremblay likewise con-
sidered and interviewed the four operators displaced by
the switchboard changeover. Personnel Manager Price
submitted the four names to Tremblay for his considera-
tion. In all, Tremblay interviewed eight persons for the
three vacancies. Tremblay hired two operators, Pearce
and Ugarte, and an ex-clerical employee named Tania
Boyd. Price offered alternative positions to LaFaive and
Carter who declined and were thereby terminated.4
Ill. THE ALLEGED VIOLATIVE REFUSAL TO TRANSFER
MARY LAFAIVE
LaFaive testified that in August 1978 she contacted
the Union and got cards to distribute among employees.
She and another employee distributed most of the cards
among the telephone operators and cafeteria employees.
During the course of the Union's campaign LaFaive met
the union representative in the lobby of the building on
several occasions to transfer authorization cards. The
Company held several meetings of employees in prepara-
tion for the election. At each of the meetings employees
spoke in favor of the Union and/or made complaints to
management. LaFaive said that she, Brent, Carter, and
Ugarte had all favored the Union in the company meet-
ings and had expressed their favoritism to the Company
at these meetings. All the phone operators also expressed
concern about wages, complaints made against the opera-
tors' message handling, and parking problems. LaFaive
and others received a wage increase in October as a
result of complaints about postponement of the annual
increase and cost-of-living increase. At the last meeting
3 Whereas the main board previously accommodated three operators
daily, a permanent reduction in phone volume occasioned by Respond-
ent's sale of its TV station and the transfer of several operations to the
Sterling Heights location resulted in board work for only two operators.
4 The above facts are from undisputed testimony of several switnesses.
at least one discussion centered around the Union's con-
tract for the circulation department. LaFaive and Vice
President Nelson discussed the Union's promise of allow-
ing news employees to transfer their longevity from the
Respondent's retirement plan to the Union's pension
fund. LaFaive testified that Nelson stated that such a
transfer was not automatic but rather had to be negotiat-
ed. LaFaive asserted that since it (the transfer) would
not cost the paper anything, it should not be subject to
negotiation. Nelson declared (according to LaFaive)
that, even if no cost was involved, it would not mean
that the paper would automatically allow the transfer of
retirement longevity. At the election in March, LaFaive
was the Union's observer in the poll.
In June the Company changed the hours and employ-
ee complement on the main board and began installing
new equipment in the city room. The new operators' job
in editorial was to become a dual function with the
board and clerical duties but with only three positions
available after the change. LaFaive spoke to personnel
and learned that four operators as well as other appli-
cants would vie for the three positions with the choice
to be made by the editorial department. She was told by
Personnel Manager Price that two other positions were
also available-one in the circulation department as a sta-
tion manager and another in the bookkeeping department
at the Sterling Heights facility. LaFaive told Price that
Sterling Heights was too far to travel and not equal in
pay and the station manager job was too hazardous.
Price told her if she was interested in a city board posi-
tion to interview with Editor Tremblay. Several days
later LaFaive did meet with Tremblay who told her the
wage was set by the Guild contract and the hours would
be reduced on Saturday with two positions on the board
at all times. The two girls would share the board and the
clerical duties. LaFaive said Tremblay told her he would
notify her later. The following week the chief operator
told LaFaive that she had recommended LaFaive,
Pearce, and another operator to Tremblay for the city
board positions.
On Friday, July 6, LaFaive was called to personnel
and informed that Pearce and Ugarte had been selected
and that she was disqualified. Price again offered the
bookkeeping and station manager jobs, but LaFaive re-
fused both. Price then told LaFaive that the following
day would be her last day. LaFaive was terminated Sat-
urday, July 7. LaFaive testified that she was concerned
about the robberies and rapes of the station managers in
the inner city and that, if she had no way of getting to
the job in Sterling Heights, there was no point in know-
ing anything about them. She did not inquire about trans-
portation accommodations for employees transferred to
the Sterling Heights facility. The fourth operator, Carter,
was also offered the two positions rather than termina-
tion, but she also refused both and was terminated. La-
Faive knew that Pearce had clerical experience but did
not know Ugarte's clerical experience.
Personnel Manager Price testified that, when the
changes were made in the telephone operation, she told
LaFaive, Carter, Pearce, and Ugarte that only three po-
sitions would be available in editorial and two other po-
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sitions, one in circulation and one in accounting, were
available. Price told each operator what the duties would
be and that the pay level of each was higher with the
exception of the editorial positions. Price only told the
operators that the editorial pay level was set by the
Guild contract. Each of the operators turned down the
circulation and accounting positions, but expressed inter-
est in the editorial position. Price referred each operator
to Administrative Editor Tremblay. Price stated that edi-
torial requested and received the personnel folders of the
four operators prior to the interviews. Later she was in-
formed by Tremblay that he had chosen two of the
former operators, Pearce and Ugarte, and had not select-
ed either LaFaive or Carter. Price contacted LaFaive
and Carter to inform them of editorial's decision and to
reoffer the circulation and accounting vacancies. Both
LaFaive and Carter refused either vacancy and Price in-
formed them of their termination, effective July 7. Price
confirmed the offer of the vacancies, the refusals by
Carter and LaFaive, and the termination of each by
letter to their homes. No further offers of employment
were made to LaFaive or Carter.
Approximately July 9, Price was informed by Tremb-
lay that he had hired a former accounting clerk, Tania
Boyd, to fill the third position as editorial clerk on the
city board. Tremblay had set July 17 as the reporting
date for Boyd.
Administrative Editor Tremblay testified that he had
30 years with the paper in the editorial department. As
editor he recruits, interviews, hires, and fires employees
and is the Respondent's representative vis-a-vis the News-
paper Guild in servicing the contract covering the edito-
rial employees. The change in the city board was under
consideration by editorial for approximately 1-1/2 years
and was effected when equipment became available to
replace the 40-year-old cord board. The replacement was
an automatic pushbutton with unlimited line capability.
Tremblay decided that with the efficiency of the new
push button he could also satisfy a standing desire of edi-
torial for clerical help. He therefore created a new clerk
position in editorial which included the phone function.
The new position would be manned daily by three em-
ployees alternating monthly on a 5-1/2-day week.
Tremblay interviewed eight people for the three posi-
tions. Five were from the general services department-
LaFaive, Carter, Pearce, Ugarte, and Retigan, the old
relief operator. Two were messengers within the editori-
al department-Sawyers and Abraham. The last was
Boyd, an ex-accounting employee who applied for the
position. Tremblay personally knew the employee pros-
pects for the three positions, but he did review the per-
sonnel folders of the prior operators. In addition, he
counseled with the various editors on the paper to get a
consensus on each employee prospect. Tremblay was im-
pressed by the enthusiasm shown by Pearce and Ugarte
and was not impressed by LaFaive's lack of enthusiasm.
LaFaive had expressed a desire to get a position under a
union contract rather than a desire for any particular
type of work whereas Pearce and Ugarte had expected
the new job to be a challenge, more interesting than the
prior operators', job and each asked for serious consider-
ation. By July 7 Tremblay had interviewed the seven
current employees and had selected two, Pearce and
Ugarte, partially because of their interviews and partially
because each had some clerical experience. LaFaive was
not selected because the consensus was that she generat-
ed an excess of complaints as an operator. Tremblay
stated that, although the rejected operators were still in
the running for the one remaining position, he posted on
July 5 a vacancy pursuant to the Guild contract. Such
posting was required before hiring any employees from
the outside. Several days later, about July 9, he inter-
viewed Boyd and consulted her prior supervisor. He
hired her as a result of her interview and because she did
have some clerical experience. Tremblay notified Price
in personnel and Boyd of his selection and told Boyd to
report for work the following week. The remaining pros-
pects including LaFaive were terminated from Respond-
ent's employ.
Analysis and Conclusion
The General Counsel alleges that Respondent refused
and failed to transfer Mary LaFaive to an available oper-
ators position in the editorial department after eliminat-
ing her former position thereby causing her termination.
There is little dispute on the facts but each party has sep-
arate and distinct reasons for its conduct. The General
Counsel contends that Respondent did not transfer La-
Faive because she engaged in union activity. Respondent
asserts that LaFaive was not selected to fill a vacancy
because she was not as qualified as the employees who
were selected. The case therefore turns on employer mo-
tivation. The causality test applied in Wright Line, a Divi-
sion of Wright Line. Inc., 251 NLRB 1083 (1980), is
equally applicable here. The determination is twofold;
first, whether protected activities played a role in the
employer's decision (probative of prohibitive motivation)
and, second, whether Respondent's asserted business
reason is sufficiently proven to be the cause for its action
so as to negate the presence of protected activity in the
discriminatee. The General Counsel must first establish a
prima facie case of discrimination and he must prepon-
derate on the basis of all the evidence to prevail.5
Here the General Counsel must at least show that La-
Faive engaged in protected activity, the Respondent had
knowledge of LaFaives' protected activity, Respondent
displayed animus against unions or LaFaive, and that Re-
spondent's action against LaFaive was triggered by her
protected activity. The General Counsel's evidence
shows that LaFaive as well as other operators engaged
in union activity during the organization campaign of the
union. Likewise, during the company meetings LaFaive
was joined by other operators in supporting the union
and voicing complaints to management. At one such
meeting in October 1978, LaFaive and several other op-
erators complained of the postponement of their annual
wage review and cost-of-living increase, each shortly
thereafter received an increase in pay. The General
Counsel characterized management's action in the meet-
s As the Board noted in Wright Line, the requirement that Respondent
come forward with evidence of its motivation does not undermine the es-
tahlished concept that the General Counsel must establish an unfair labor
practice by a preponderance of the evidence.
90
EVENING NEWS ASSOCIATION
ing as "solicitation of grievances" and the granting of the
pay increases as "a great way to interfere with employ-
ees in the exercise of their free choice as to whether they
do or do not want the union."6 The fact of the election
in March and the changes in the phone system occurring
in June and July is argued by The General Counsel to
show that Respondent took the opportunity to rid itself
of a declared union activist who just recently had ob-
served for the union at the polls.7 Therefore. Respond-
ent's motivation places its action within the proscriptions
of the Act.
The Act imposes no requirement that an employer ex-
ercise good business judgment and exacts no penalty be-
cause he exercises bad business judgment. This is so
whether the nature of the business judgment is real or
imagined, proven or inferred. What the General Counsel
must establish in this case is that Respondent's decision
to not transfer LaFaive to one of the vacancies at the
city board was not motivated by business reasons, but
rather by its determination to visit reprisals upon its em-
ployee, Mary LaFaive, because of her union activities
and sympathies.
It is clear that LaFaive engaged in protected activity
as recent as early March but she was not alone. Al-
though Respondent is charged with the knowledge of
her capacity as observer and such knowledge is imputed
to editor Tremblay, his denial notwithstanding, there is
an absence of evidence that Respondent has in any way
singled out LaFaive. There is no evidence (nor allega-
tion) of coercion, restraint, or interference save the col-
lateral reference to the meetings and pay increases occur-
ring outside the limitation period of 6 months. This same
reference stands alone as evincing Respondent's animus
either toward the union as a whole or LaFaive, individ-
ually.
For the following reasons I conclude and find that the
General Counsel has not sustained his burden of proving
discrimination. What the General Counsel alludes to as
background is unavailable to him, in my view, for sever-
al reasons. First, the events clearly are outside 10(b) limi-
tations. Second, the events, if taken as fact, are subject to
several inferences, none of which constitute an unfair
labor practice nor amplify the character of any later con-
duct of Respondent. Third, the events, even if under
consideration, could only be helpful to the General
Counsel's case by a determination that such events con-
stitute an unfair labor practice, and thereby support the
General Counsel's argument of interference with Section
7 rights and, lastly, such a determination falls squarely
within the proscription found in the standards for use of
"background" evidence set down by the Supreme Court
in the Bryan Manufacturing case.8 Those standards were
stated as follows:
6 No action was initiated by the Charging Party at the time the meet-
ings were held or when the increases were granted and any such action is
now time-barred.
; Neither Respondent's timing of the changes in the phone sslcem ,or
the substance of the phone changes is under attack here
" Local Lodge .\%r 1424, Ilnernatoonal A.fIociaio,, o achimsi, 41L-
CIO lBryan Manufacturing Co,. Inc. .V L.R[. 362 U.S 41 1, 416h417
(1960).
It is doubtless true that §10(b) does not prevent
all use of evidence relating to events transpiring
more than six months before the filing and service
of an unfair labor practice charge. However, in ap-
plying rules of evidence as to the admissibility of
past events, due regard for the purposes of § IO(b) re-
quires that two diffieent kinds of situations be distin-
guished. The first is one where occurrences within the
six-month limitations period in and of themselves may
constitute, as a substantive matter unfair labor prac-
tices. There. earlier events may be utilized to shed
light on the true character of matters occurring
within the limitations period; and for that purpose
§10(b) ordinarily does not bar such evidentiary use
of anterior events. The second situation is that where
conduct occurring within the limitations period can be
charged to be an unfair labor practice only through re-
liance on an earlier unfair labor practice. There the
use of the earlier unfair labor practice is not merely
"evidentiary," since it does not simply lay bare a
putative current unfair labor practice. Rather, it
serves to cloak with illegality that which was other-
wise lawful. And where a complaint based upon
that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a le-
gally defunct unfair labor practice. [Emphasis sup-
plied.]
To paraphrase the Court, albeit there was no finding
that the grant of the wage increase constituted an unfair
labor practice, it is manifest that, were that not in fact
the case, Respondent's failure or refusal to transfer Mary
LaFaive would carry no taint of illegality.
The Board has consistently ruled that Section 10(b) is
exclusionary of evidence in circumstances where only in-
substantial evidence can be marshaled from within the 6-
month period and merit of the complaint is shown only
by reliance on earlier events. Pacific Maritime Association,
194 NLRB 294 (1971); Washington Manor, Inc.. d/b/a
Washington Manor Nursing Center, 211 NLRB 324
(1974), wherein the Board stated, "General Counsel now
seeks to use the notice to find a violation of the act when
he only introduced it as background." This cannot be
done since it goes beyond an attempt to shed light on
matters occurring within the 10(b) period and thus con-
flicts with the Supreme Court.
If there is any evidence of animus or hostility toward
LaFaive based on her union or concerted activity, the
General Counsel might prevail. However, in the absence
of such evidence a discriminatory motive may not be in-
ferred. Further, the record as a whole discloses that all
the operators were treated the same resulting in two of
the operators being transferred to the new position and
two being retained on the main switchboard, including
Brent, who was equally as vocal as LaFaive on wages in
October 1978. Furthermore, Respondent did not summa-
rily dismiss LaFaive or the other operators but instead
offered several vacancies as an alternative. LaFaive
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cavalierly refused to consider either position in spite of
the fact that each would have meant an increase in pay.9
The General Counsel contends, in addition, that the
Respondent's reason for failure to transfer LaFaive is not
supported by the weight of experience and seniority of
the applicants chosen when compared to that of La-
Faive.' ° Suffice it to say that the scrutiny of any "legiti-
mate business reason" as an inquiry in the decisional
process would only follow a successful presentation of a
primafacie case by the General Counsel.
Moreover, lack of any business reason, even if estab-
lished, would not carry the day for the General Counsel.
A meritorious determination of his complaint must be
based on affirmative evidence that the motivation for the
failure to transfer was one proscribed by the Act.
In view of the above, I conclude and find that Re-
spondent has not discriminatorily refused or failed to
9 I discredit LaFaive's testimony that neither of the alternative vacan-
cies were explained to her. Her demeanor and responses were as off
handed as her refusal to accept either.
10 Of particular note is the fact that LaFaive was not alone. Carter
was not selected either. He was offered other employment, but chose to
accept termination, as LaFaive.
transfer Mary LaFaive to a position at the new city
board. It follows therefore that her resultant termination
also was not in violation of the Act.
CONCLUSIONS OF LAW
1. Respondent did not violate Section 8(a)(3) and (1)
of the Act by either failure to transfer employee Mary
LaFaive or her subsequent termination.
2. The General Counsel has failed to sustain his burden
of proof for any allegation in the complaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '
The complaint is dismissed in its entirety.
II In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
92