Newark Morning Ledger

National Labor Relations Board - Board Decisions

Apr 19, 1995

316 N.L.R.B. 1268 (N.L.R.B. 1995)

1268
316 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and Charging Party have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent did not
act unlawfully, we do not rely on his finding that the union chapel
chairman and vice chapel chairman act as agents of both the Union
and the Respondent when they refer substitute employees pursuant
to the parties’ past practice and the terms of the parties’ agreement.
This finding is unnecessary to our conclusion, in agreement with the
judge, that Korines’ conduct in altering the markup sheet and ignor-
ing the general foreman’s denial of permission to book substitute ap-
prentice Flannery was not protected.
1 This contract contains, at sec. 28, a broad grievance/arbitration
clause, pursuant to which ‘‘any dispute arising under this contract’’
may be arbitrated at the instance of either party.
Newark Morning Ledger and Local 8N Graphic
Communications Union. Case 22–CA–18837
April 19, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On September 19, 1994, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel and Charging Party filed exceptions
and supporting briefs. The Respondent filed a brief in
opposition to the exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Greg Alvarez, Esq., for the General Counsel.
Sidney D. Kress, Esq. and Barry N. Steiner, Esq., for the Re-
spondent.
Paul Montalbano, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on December 7, 8, and 9,
1993, and April 14, 1994. The charge was filed on December
7, 1992, and an amended charge was filed on January 28,
1993. The complaint was issued on February 24, 1992, and
alleged that on November 2, 1992, the Respondent by Frank
DeSimone threatened William Korines with discharge be-
cause of his activities on behalf of the Union as an assistant
chapel chairman.
The Respondent essentially concedes the statement alleg-
edly made to Korines, but asserts that under the particular
circumstances of this case, Korines was not engaged in pro-
tected union activity and therefore could have been dis-
ciplined without violating the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New Jersey corporation, admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Company and the Union have had a collective-bar-
gaining relationship for at least 40 years. The Union rep-
resents the employer’s journeymen and apprentice pressroom
employees. The most recent collective-bargaining agreement
between the parties is one which has a term from December
13, 1989, to July 14, 1999.1
At the present time and the time that the events in this
case occurred, the Company operated pressrooms out of two
plants, one located in Piscataway and the other in Montville.
Frank DeSimone was the Respondent’s general foreman.
There is at each plant a group of regularly assigned jour-
neyman and apprentices. These individuals have a set sched-
ule (except for a group called floaters) and are assured of
work 5 days a week. Journeymen are pressroom employees
who have acquired, by training and experience, the full com-
plement of skills to operate printing presses of the type used
by a newspaper. Apprentices, who are paid less, will work
in that capacity for a period of time until they acquire the
skills necessary to become journeymen. In both cases, the
journeymen and apprentices employed by the Newark Morn-
ing Ledger are regularly employees of the Company with the
full range of benefits called for in the collective-bargaining
agreement.
On a fairly regular basis, other employees will be needed
for various of the shifts either because one or more of the
regular pressroom employees is out sick or on vacation. On
other occasions, when the paper will have more pages than
usual, this will require the services of additional journeymen
and/or apprentices. In those situations, there is a group of
substitute pressroom employees, who have been interviewed
and approved by the Company and who, on an ad hoc basis,
are referred to the Company to work on a particular shift as
needed.
The procedure for referring substitute employees is gov-
erned by section 3 of the collective-bargaining agreement,
and by the ‘‘Mark-Up Agreement’’ set forth at pages 23 to
25 of the contract. In pertinent part, these provisions state:
1269NEWARK MORNING LEDGER
2 William Tuske Jr. was the Union’s vice chapel chairman from
1987 to 1991 and was the chairman in 1992. He testified that he
asked permission from Frank DeSimone before booking a substitute
apprentice to work as a journeyman because this was the standard
practice which preceded his tenure in either position. He testified
that there were occasions when his request to put up a substitute ap-
prentice to a journeyman’s job were denied. He also testified that
DeSimone was uncomfortable with certain apprentices and would
only allow them to work in a journeyman’s spot if he was really
stuck.
3 Korines testified that when he became assistant vice capel chair-
man, he heard from his predecessors in that job that DeSimone re-
quired prior approval before a substitute apprentice could be booked
as a journeyman. He also testified that he was given to understand
that if he didn’t follow this rule, DeSimone would view it as insub-
ordination and could result in discharge.
Section 3: (a) The Union agrees to furnish competent
pressmen in the numbers required by the publisher in
accordance with the terms of this Agreement, it being
understood that notice will be given to the Union of
help required as set forth in the markup agreement.
Once a given number of men have been booked, all
such persons booked shall be guaranteed one shift or
payment of one shift, provided they appear at the press-
room at the designated starting time. If the Union is un-
able to furnish workmen as required above, the pub-
lisher shall have the right to obtain such help from any
source, it being understood that the prevailing rate of
wages shall be paid such help.
Markup Agreement
1. The marked-up operating assumptions of the pub-
lisher shall consist of a guarantee by the publisher to
employ a specified number of journeymen and appren-
tice situation holders for five day or night shifts each
per week. The number of these situation holders re-
quired on each scheduled day or night shift shall be
designated by the publisher.
2. The Union agrees to make every effort to provide
pressmen and apprentices on a straight time basis to
meet the marked-up assumptions of the publisher. Such
marked-up operating assumptions may be changed on
10 days’ notice for such reasons as, for example,
changes in advertising patterns, changes in editorial pol-
icy, seasonal variations, vacations, or reductions in
force. This includes a commitment to make every effort
to provide straight time replacements for vacations, men
taking sick days, death in family, or trip-ups when such
replacements are necessary to meet the manning re-
quirements of the Agreement. The Union also agrees to
make every effort to supply straight-time journeymen
and apprentices as extras.
3. When competent men or substitutes cannot be se-
cured at straight time rates to meet the publisher’s
needs, the publisher may use whatever force is avail-
able in the pressroom at the time in order to issue the
paper without delay.
4. The schedule of each situation holder’s days off
or nights off shall be provided to the office by the
Union (chapel chairman). In order to assist the Union
in providing substitutes or extras in accordance with
this provision, the publisher agrees that the Union
(chapel chairman) shall be notified of the number of
men and starting times required of the next day of pub-
lication.
There are occasions when extra employees are needed to
fill vacancies and when it is impossible for the Union to find
substitute journeymen to replace a journeyman’s position. In
such a circumstance, it may become necessary to place or
‘‘put up’’ a substitute apprentice into a journeyman’s posi-
tion. When this occurs, the Union, through its chapel chair-
man or vice chairman, will seek permission from the press
room general foreman (here Frank DeSimone), to ‘‘book’’ a
person who is designated as a substitute apprentice to work
that particular day as a substitute journeyman. That such per-
mission has to be obtained has been the practice of the par-
ties for many years. This is not in dispute. Further, the evi-
dence shows that the general foreman evaluates the capabili-
ties of the substitute apprentices to determine if they are ca-
pable of being ‘‘booked’’ for journeymen jobs.2 One of the
reasons for this is that these people are working with high
speed presses and if someone is not competent, the situation
can become dangerous.
Korines acknowledges that there has existed a longstand-
ing practice of requiring permission in order to book or ‘‘put
up’’ a substitute apprentice into a journeyman’s spot.3 He
also acknowledges that the Company can refuse to accept
such a booking. He asserts, however, that he interprets the
contract as meaning that if he, as the Union’s vice chapel
chairman, decides to put up a substitute apprentice into a
journeyman’s spot, he can do so despite the Company’s non-
permission and the Company’s only remedy is to send the
booked man home when he shows up for work. To my mind,
this interpretation of the agreement is absurd as it would, in
effect, give the Company no time to obtain a replacement
and would require the Company either to accept an unquali-
fied person or to operate the shift without a full complement
of workers. Such an interpretation would therefore nullify
those provisions of the contract which gives the Company
the right to find a suitable replacement if the Union is unable
to supply a man who, in the company’s opinion, is com-
petent to do the job. In my opinion, such an interpretation
of the agreement is at variance with the parties’ intentions
as expressed in the language of the contract and by their mu-
tual practice in the manner by which it has been imple-
mented.
Sometime in the autumn of 1992, the Company hired five
substitute apprentices to be regular apprentices. These people
were thereupon inducted into union membership. At about
the same time, the Union also gave membership to three of
the substitute apprentices (Deska, Flannery, and Taglia), who
were not hired by the Company as regular apprentices. In
October 1992, DeSimone told William Tuske Jr. (then the
chapel chairman) and Korines (then the vice chapel chair-
man), that because this group had become union members,
did not mean that the chapel chairman could assign them to
journeymen positions without DeSimone’s permission on a
case-by-case basis.
On October 31, 1992, the Piscataway plant foreman, Ste-
ven Leotsakos, told Korines, that because the next day’s
paper was going to require an additional ‘‘roll’’ or ‘‘web’’
a number of substitute men would be required for the night
shift. Korines then started calling people to see if they were
available. Korines states that about an hour later, he told
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 DeSimone, although acknowledging that there had been a few
times in the past when Flannery had worked as a substitute journey-
man, asserted that he did not believe that Flannery was qualified to
do the work in that category. (See R. Exhs. 5–9.)
Leotsakos that he had not been able to get enough men to
cover the shift and suggested that three substitute apprentices
be ‘‘put up’’ as substitute journeymen. According to Korines,
Leotsakos said that he could not O.K. this without first talk-
ing to General Manager Frank DeSimone.
According to Korines, about 15 minutes later, he told
DeSimone that in order to fill the journeymen spots he would
have to put up three substitute apprentices. He states that
DeSimone said that he had no problem with that but that he
wanted to make sure that the booking was done fairly and
indicated that some apprentices were getting more shifts than
others. According to Korines, he then handed the phone to
Billy Neals, the Union’s vice president. Korines states that
at no time during this conversation was there any mention
of an employee named Flannery.
Korines states that he called up the substitutes to confirm
their assignments and put their names onto the markup sheet
which he showed to Leotsakos. Korines states that after
Leotsakos left for the evening, he placed the markup sheet,
with the night’s assignments, on the clipboard in the office
so that the night foreman could see it when he arrived at
work. This markup sheet was designated as both General
Counsel’s Exhibit 8 and Respondent’s Exhibit 4. Examining
both documents indicates that, initially, Flannery was put on
the sheet as an apprentice and that his name was erased and
thereupon placed on the list as a journeyman to substitute for
G. Shown. In short, these documents tend to show that
Korines, after Leotsakos left for the evening, moved Flan-
nery from the apprentice category to the journeyman cat-
egory by altering the markup sheet for that evening’s assign-
ments.
Steve Leotsakos testified that during the afternoon of Oc-
tober 31, 1992, Korines told him that he was having a hard
time finding substitutes. He states that, at some point,
Korines suggested that he wanted to put up substitute ap-
prentices Huey Taglia Jr., Ward Deska, and Robert Flannery
as journeymen for the night shift. According to Leotsakos, he
told Korines that he could not allow these three to be as-
signed to journeymen spots without first talking to Frank
DeSimone. He states that he then spoke to DeSimone on the
phone who approved the proposed assignments for everyone
except Flannery and that he informed Korines of this deci-
sion. He states that Korines asked to speak to DeSimone and
that he heard Korines say that he was stuck for people and
needed to put up Flannery because he couldn’t get anyone.
Leotsakos states that he then heard Korines say: ‘‘This is
bull shit,’’ whereupon Korines came out of the office and
handed the phone back. Leotsakos states that when he got
back on the phone, DeSimone told him that Flannery was not
to be put up. (That is, assigned to a journeyman’s job.)
Leotsakos testified that, about 15 minutes after the phone
call described above, Bill Neals told him that Korines has
exhausted all efforts to fill the journeyman’s spot. Leotsakos
states that he reiterated DeSimone’s position regarding Flan-
nery whereupon Neal asked to be allowed to call DeSimone.
According to Leotsakos, after Neal spoke to DeSimone, he
(Leotsakos) spoke to DeSimone who repeated that Flannery
was not to be put up. Leotsakos was shown General Coun-
sel’s Exhibit 8 and Respondent’s Exhibit 4 and testified that
he wrote Flannery’s name on the markup sheet as being as-
signed to the apprentice and not the journeyman position.
Neals testified that on October 31, 1992, at some point be-
tween 1 and 3:15 p.m., he spoke to DeSimone on the tele-
phone about the subject of hiring minority substitute appren-
tices and that DeSimone said that he was a little upset about
some of the men getting five shifts while others were getting
only two. He testified that nothing was said during this con-
versation about Flannery and that DeSimone did not refuse
permission to book any substitute apprentices.
Frank DeSimone testified that on October 31, 1992, he re-
ceived a call from Leotsakos who told him that Korines was
requesting that certain regular substitute apprentices, includ-
ing Flannery, be assigned as journeymen for the evening
shift. He testified that he told Leotsakos that all of the pro-
posed assignments were O.K. except for Flannery who could
not be put up as a journeyman. According to DeSimone, he
spoke to Korines that afternoon and told him that Flannery
could not be put up. DeSimone testified that later in the
afternoon, Billy Neals called him from Leotsakos’ office and
said that they were still having trouble getting enough jour-
neymen and that they still wanted to use Flannery. DeSimone
testified that he told Neals that he was not going to permit
Flannery to be put up.4 DeSimone also recalls that during the
conversation with Neals, there also was a more general dis-
cussion about making sure that the booking of substitute ap-
prentices was done fairly.
Needless to say, Flannery showed up to work and was, in
accordance with the markup sheet, assigned to work as a
journeyman on the night shift. When informed of this,
DeSimone called William Tuske Jr. and asked what was
going on with the booking in that he had specifically told
Neals that Flannery was not to work as a journeyman. This
is confirmed by Tuske, who at that time was the Union’s
chapel chairman and who testified that DeSimone was upset
when he called. (At the time of the hearing, Tuske was em-
ployed as a foreman employed by the Company.)
According to Korines, on November 2, 1992, he received
a phone call at home from Tuske who told him that his job
was on the line. In this regard, Tuske testified that on Mon-
day or Tuesday, he called Korines and told him that
DeSimone was upset because Korines had booked Flannery
and that he (Korines) had better straighten this out.
Korines testified that after talking with Tuske, he called
Leostakos to find out why his job was being threatened.
Korines states that Leotsakos called back and said that
DeSimone wanted to speak to him whereupon he placed a
call to DeSimone who said that he wanted to know who au-
thorized Flannery to go up as a journeyman. Korines claimed
that during the October 31 conversation, he had not been
prohibited from moving Flannery up as a journeyman and
that the conversation only had to do with the general subject
of booking substitutes in a fair manner. According to
Korines, DeSimone replied that he had told Korines that
Flannery could not be booked as a journeyman and said that
he was sick and tired of the way Korines was doing the
booking. Korines testified that DeSimone further stated, ‘‘I
should fire you.’’
1271NEWARK MORNING LEDGER
5 NLRB v. Interboro Contractors, 388 F.2d 495 (2d Cir. 1967). In
NLRB v. City Disposal Systems, the Court held that a single truck-
driver, who honestly and reasonably believed that the brakes of his
trucks were unsafe, engaged in concerted and protected activity
when he refused to operate the vehicle where the collective-bargain-
ing agreement contained a provision which allowed employees to
refuse to drive unsafe equipment.
DeSimone’s testimony regarding his conversation with
Korines on November 2, 1992, is not substantially different
from the version given by Korines. He asserts that he told
Korines that he had screwed up the booking by putting up
Flannery after being told not to do so. He testified that
Korines claimed that he (DeSimone) had given him permis-
sion to put up Flannery to which he replied that Korines was
‘‘full of shit.’’ DeSimone testified that Korines had engaged
in insubordination and that he could be discharged for this.
On November 4, 1992, Korines and Tuske went to a griev-
ance meeting on an unrelated matter with DeSimone who ob-
jected to Korines being present at this meeting and said that
he should have fired him for booking Flannery. Tuske in-
sisted that Korines remain at the meeting and DeSimone
backed down on this point.
Apart from the oral threats of discharge, Korines never re-
ceived any other form of discipline for the actions of October
31, 1992.
III. ANALYSIS
It seems to me that pursuant to the parties’ past practice
and consistent with the terms of the collective-bargaining
agreement, the Union’s chapel chairman and/or vice chair-
man act as agents of both the Union and the employer when
referring substitute employees in both the journeyman and
apprentice categories. As such, I think that the General
Counsel is incorrect in characterizing this function as being
solely a union function.
On October 31, 1992, Korines as the vice chapel chair-
man, was asked to provide substitutes for the night shift and
after making an effort to find suitable personnel, asked
Leotsakos for permission to ‘‘put up’’ three substitute ap-
prentices to work that evening in journeyman jobs. Foreman
Leotsakos told Korines that DeSimone would have to author-
ize the assignment of the three men in question, these being
Huey Taglia Jr., Ward Deska, and Robert Flannery.
Based on the record as a whole and my observation of the
demeanor of the relevant witnesses, I conclude that
DeSimone approved the assignment of Deska and Taglia to
journeymen jobs but explicitly refused to allow Flannery to
be put up as a journeyman. I further find, for purposes of
this proceeding, that Korines, having been notified of the re-
fusal, decided to take matters into his own hands and phys-
ically modified the markup sheet by changing Flannery’s as-
signment from apprentice to journeyman.
Korines testified that he interpreted the contract as mean-
ing that he could, as vice chapel chairman, ignore the Com-
pany’s refusal to give permission and refer a substitute ap-
prentice to work as a substitute journeyman, with the Com-
pany having the remedy of refusing to allow the referred
man to work the shift. As I have already indicated, this inter-
pretation of the contract would effectively nullify section
3(a) thereof and is inconsistent with the acknowledged long-
standing practice of the parties. In effect, Korines’ interpreta-
tion would put the Company in the position of either accept-
ing the nonapproved substitute or of sending him home and
not having enough time to find a suitable person to man the
job. In short, it is my opinion, that Korines, acting on his
own, was seeking to unilaterally change the agreed-upon
terms and conditions of referring substitutes for employment.
Moreover, I find that in furtherance of this object, he altered
the markup sheet in an effort to avoid the fact that DeSimone
had refused to grant permission to have Flannery put up as
a journeyman on the evening of October 31, 1992.
The actions of a shop steward (or for that matter any em-
ployee) who honestly and reasonably seeks to enforce the
terms of a collective-bargaining agreement constitutes pro-
tected concerted activity within the meaning of Section 7 of
the Act. See NLRB v. City Disposal Systems, 465 U.S. 822
(1984), where the Supreme Court upheld the Board’s
Interboro doctrine.5 See also Howard Electric Co., 285
NLRB 911 (1987), and Freeman Decorating Co., 287 NLRB
1235, 1239–1240 (1988). In the latter case, the administrative
law judge found that the employer violated the Act by dis-
charging a shop steward because of his activities in that role.
The administrative law judge stated that when an employee
is discharged for protected activity, the burden shifts to the
employer to show that it had an honest belief that the em-
ployee engaged in misconduct. As the adminisrtative law
judge concluded that the employee did not engage in any
misconduct (alleged threats), and the employer did not have
an honest belief that he did so, the employer did not meet
its burden of proof.
Although the actions of a shop steward in seeking to en-
force the provisions of a contract (if done in an honest and
reasonable manner) is protected under the Act, this does not
mean that he or she is granted unlimited license. For exam-
ple, even when the General Counsel has made out a prima
facie case that the employer discharged a shop steward be-
cause of his threat to file a large number of grievances, the
actions of the steward may lose the Act’s protection, when
the employer can establish that he or she acted in an insubor-
dinate and overly disruptive manner. Postal Service, 268
NLRB 274 (1983).
In Carolina Freight Carriers Corp., 295 NLRB 1080 fn.
1 (1989), an employee was held to have lost the protection
of the Act when, although asserting a contract right, he per-
sisted in challenging his supervisor’s direct order to clock
out. In this regard, the Board noted that ‘‘the employee was
lawfully discharged as he should have followed his super-
visor’s order to clock out and then invoked the appropriate
collective-bargaining procedures for asserting his claim.’’
In Roadway Express, 271 NLRB 1238 (1984), the Board
held that an employer lawfully discharged an employee
where that employee, in furtherance of his Union’s griev-
ance, surreptitiously obtained business records (bills of lad-
ing), from the employer’s office which he then turned over
to the Union’s shop steward.
In the present case, it is my belief that Korines was not
honestly and reasonably acting to enforce the terms and con-
ditions of the existing collective-bargaining agreement. On
the contrary, I believe that he was acting with the intent of
unilaterally changing the terms of the agreement and the
longstanding practice of the parties with respect to the as-
signment of substitute journeymen and apprentices. To make
matters worse, I believe that the evidence warrants the infer-
ence that after Leotsakos left on the evening of October 31,
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1992, Korines altered a business record, namely, the markup
sheet, which is the document telling the night foreman,
which employees are to be assigned as journeyman and
which are to be assigned as apprentices.
In conclusion, it is my opinion, that Korines was not en-
gaged in protected activity and that the threatened discharge
by DeSimone was not unlawful within the meaning of Sec-
tion 8(a)(1) and Section 7 of the Act.
CONCLUSION OF LAW
The Respondent has not violated the Act in any manner
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint is dismissed.