Newsday, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1969

179 N.L.R.B. 1053 (N.L.R.B. 1969)

NEWSDAY, INC.
Newsday, Inc. and Walter Griffin. Case 29-CA- 1430
December 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND- JENKINS
On June 30, 1969, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, exceptions and supporting briefs were
filed by Respondent and the General Counsel; and
an answering brief was subsequently filed by the
General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made at the
hearing by Trial Examiner David London' and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts
the findings ,: conclusions, and recommendations' of
the Trial Examiner, as modified herein.
'The hearing in this case was held before Trial Examiner David London
Subsequent to the hearing , Trial Examiner London's term of appointment
expired by reason of the retirement requirements of the United States Civil
Service Commission. Thereafter, the Chief Trial Examiner issued an Order
directing the parties herein to show cause why another Trial Examiner
should not be designated to prepare and issue a Trial Examiner's Decision
on the basis of the completed record and briefs. None of the parties
responded to the Chief Trial Examiner 's Order and, thereafter, he
designated Trial Examiner Martin to prepare and issue a Trial Examiner's
Decision Unless otherwise indicated , the use herein of the denomination
"Trial Examiner" refers to Trial Examiner Martin.
'We hereby correct the Trial Examiner 's inadvertent references to the
labor organization involved hereip as "Local 40," when the true
denomination is "Local 406 ." We also note and correct the Trial
Examiner 's inadvertent error in stating that Vincent Bordash , assistant
circulation manager , had complimented Griffin- on doing a better job than
his own son-in-law . In fact, that compliment was made by Bertram
Chernow - Nassau County home delivery manager and the person who
later effected Griffin's discharge . The error does not affect our concurrence
in the Trial Examiner's conclusions.
'Respondent asserts that the Trial Examiner erred , inter atia. in his
recommended remedy when he provided that should employee Griffin
request a transfer to a district manager 's job in another zone , such transfer
be made to a zone "acceptable to Griffin." We agree with Respondent's
contention . Under all the facts and circumstances herein , we find, that
Griffin' s rights with respect to possible zone transfers will be amply
protected by those provisions of the Order which bar Respondent from
effecting discriminatory transfers and require it to offer Griffin
reinstatement to his former or lubstantially^ equivalent position without
prejudice to his seniority or other rights and privileges.
ORDER
1053
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that Respondent,
Newsday, Inc., Garden City, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
L. Delete paragraph 2(c) and substitute the
following:
"(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful in
determining compliance with this Order, and the
computation of the amount of backpay due pursuant
thereto."
2. In both the first and third indented paragraphs
of the notice, delete the final comma, substitute a
period therefore, and delete the remaining words of
the paragraph.
3. In both the sixth indented paragraph and in the
final paragraph of the Appendix, delete the
denomination "Local 40" and substitute "Local
406" therefor.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE PROCEEDING
ALBA B. MARTIN, Trial Examiner: This case' was heard
before Trial Examiner David London in Brooklyn, New
York on January 22, 1969.' The issues litigated were
whether Newsday, Inc. (Respondent herein) interrogated
and threatened employees because of their union activities,
and discriminatorily suspended, transferred, and
discharged Walter Griffin, in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, et seq., herein called the Act. Because
Trial Examiner London has become unavailable to the
Board the case has been assigned to me for preparation of
and issuance of a Trial Examiner's Decision.' After the
hearing the General Counsel and Respondent filed helpful
briefs, which have been duly considered.
Upon the record in the case consisting of the transcript
of the testimony and the exhibits, and upon due
consideration of the briefs I hereby make the following:
'Walter Griffin, an individual , filed the charge on August 20, 1968
'After opening January 21, the case was immediately and without
objection adjourned to January 22
'On April 8, 1969 the Chief Trial Examiner sent the parties an Order
concerning designation of new Trial Examiner to succeed retired Trial
Examiner , calling upon all parties to show cause why he should not
designate another Trial Examiner to prepare and issue a Trial Examiner's
Decision on the basis of the existing completed record and briefs. No
response having been received to the order to show cause, on April 25 the
Chief Trial Examiner sent the parties an Order designating me to prepare
and issue the Decision . On April 28 the Chief Trial Examiner sent an
Order correcting an inadvertent error in the previous Order
179 NLRB No. 168
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Newsday, Inc., a New York corporation with its
principal office and place of business in Garden City, New
York and various other places of business in the State of
New York, is engaged in the publication, sale and
distribution of a daily newspaper known as Newsday.
During the year prior to the issuance of the complaint on
December 17, 1968, a representative period, Respondent
held membership in and subscribed to, various interstate
news services, including, inter alia , the Associated Press
and the United Press International; published various
syndicated features, including, inter alia , Art Buchwald,
Anne Landers, and Josephine Lowman; advertised various
nationally sold products, including, inter alia , Zenith
Products, Heinz Products and Birdseye Products; and
derived gross revenues from said publishing operations in
excess of $200,000 a year. During the same period, a
representative period in this respect also, Respondent
derived annual revenue in excess of $50,000 from sales of
goods, products, and commodities delivered directly to
points outside of New York State, or from services to
firms located outside said State. Respondent admitted and
I find that Respondent is and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Nassau County Printing, Pressmen , and Assistants
Union, Local 40, International Printing Pressmen and
Assistants Union of North America , AFL-CIO , herein
called the Union, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
Ili. THE UNFAIR LABOR PRACTICES
A. The Setting
When Newsday was founded 28 years ago, the owners
"invited all unions to participate . . . and represent the
employees." At the present time Respondent has
collective-bargaining agreements with "The Printing
Pressmen's Union, the compositors, and the Stereotypers
Union." This case involves Respondent's circulation
department. The newspaper is distributed principally in
Nassau and Suffolk Counties, Long Island, New York,
and is about 90 percent "home delivered." The circulation
department has never been organized. Walter Griffin was
a district manager in the circulation department. In the
representation case (171 NLRB No. 184) the Board held
that district managers were employees within the meaning
of the Act. The district managers are responsible for the
distribution of the papers in a given area through the
carrier boys, whom the Board held to be independent
contractors.
The Union started organizing the district managers in
about November 1967. Four organizing meetings were
held in November and about five additional meetings were
held between then and the election on July 16, 1968. The
election, among Respondent's district managers , was lost
by the Union, 75 to 156.
B. Findings Based Upon Uncontroverted Testimony
Many of the facts in this case are undisputed. The
findings in this section are based upon uncontroverted
testimony unless otherwise noted.
Walter Griffin worked for Respondent for about 2
years, from August 22, 1966, until July 24, 1968, the day
he was suspended. All of this time except the first 2
months his supervisor was Joseph Locurto, the supervisor
of zone 18 Up until November 1967 he received six raises
in pay, from $80 per week to $110, all of them but the
first upon the recommendation of Locurto.° The raises
were approved at each level up the line of authority to the
circulation manager. Vincent Bordash, Respondent's
assistant circulation manager , testified it was "unusual"
for a district manager to receive six increases in 15
months and that he would have to be a very good
employee to achieve that; and he complimented him on
doing better than his own son-in-law. When Supervisor
Locurto learned that Griffin was contacting customers on
his own time in the early evening hours Locurto told him
it was a wonderful thing to do on his own time.
Respondent first received "official notification" that the
Union was trying to organize its district managers in
November 1967, and in that month Griffin joined the
Union. He attended four union meetings in November and
five between then and the election.
To Respondent's knowledge, on July 12 Griffin passed
out union literature to the district managers of zone 18 as
they were leaving a company meeting at which
Respondent's circulation manager had given the district
managers the company position concerning the Union 4
days before the election. About 150 district managers
attended the meeting. Also outside the building as the men
were leaving, and presumably handing out union
literature, was one Mayer, who worked for Respondent as
a pressman and held some office and was on the Union's
negotiating committee. Mayer was out front of the
building when an official in the circulation department
suggested to the assembled district managers at the
meeting, including Griffin, that they go out the back door.
The cars were parked nearer the back door than the front.
As the men exited through the rear door both Griffin and
Mayer were there, and another employee, handing out
literature. Respondent could not have failed to know of
this union activity by Griffin.
On July 16 Griffin was an alternate observer at the
election . In a small group of principals near the voting
place before the opening of the polls, Griffin challenged
the right of a company official to be there, thus further
identifying himself to Respondent as allied with and
sympathetic to the Union.
During the organizing period prior to the election
Griffin had four or five discussions with Zone Supervisor
Locurto concerning the Union, usually in or around the
zone office According to Griffin's uncontradicted and
credible evidence, Locurto usually took the position that a
union was not needed, that he had done well with the
41n initiating the last four raises Locurto made the following comments
concerning Griffin On January 27, 1967. "Has been doing a very good job
despite my moving him from district to district. Still learning He is a very
good detail man and North Bellmore District needs one now " On April
24, 1967. "Recommend Walter Griffin for an increase. He is doing
satisfactory work as relief man." On July 7, 1967 "Very cooperative. Does
a good job as relief but I am going to put him in Wontagh District because
of change in personnel Does a thorough job " On November 10, 1967
"Doing nice job in Wontagh. Collection bond. Has quota and attitude is
changing for better Records need improvement which he is trying to do "
NEWSDAY, INC.
Company without a union , that as circulation increased
the zones would be split up and be made smaller and there
would be need for more supervisors. Griffin would
disagree with Locurto, saying that "The Company had
expanded to an extent now that it wasn't likely there was
much room for a promotion, so I felt the men would be
better off at this point with a union." Locurto would
disagree with Griffin, saying that "Other newspapers had
followed ups in the past because of unions, with the strikes
and things like that, that the men would be better off
without a union."
There is no question on this record that Respondent
knew Griffin was adamantly in favor of bringing the
Union into the circulation department.
On June 24, 1968, Griffin requested in writing to be
transferred out of zone 18. This was the "end result of a
discussion" he had with Locurto. Several times before
this, in about January 1968, Griffin had orally asked
Locurto for a transfer from his zone. Respondent took no
action on this request for transfer for 6 weeks, and offered
no explanation for the delay to Griffin or at the hearing.
A few days after the election at the zone office Locurto
asked Griffin what he planned to do, and was he going to
quit his job. Griffin replied that he would rather not quit
because he liked his job. Then Locurto asked him if he
still wanted to transfer. Griffin replied he would like to
stay in zone 18 but that he would like to know how
"things" were "going to be"; that he had asked for a
transfer because he had earlier been told he could forget
about raises in zone 18. This may have referred to earlier
differences with Locurto or to the wage freeze Respondent
instituted from November 1967 to March 1968 in
connection with the pendency of the representation case.
After the election and this conversation with Locurto,
Griffin continued working in zone 18.
Beginning in about November 1967 Griffin and Locurto
began to have differences of opinion concerning the Union
and Griffin's "attitude," and in his own mind Locurto
allegedly began to downgrade his former opinion of
Griffin as a worker. However, although this had allegedly
been going on for months, it was not until July 19, 3 days
after the election and about the time of his postelection
conversation with Griffin related above, that Locurto
wrote any adverse conclusions concerning Griffin.
Respondent maintains a personnel file on each employee
and it was not until this "evaluation" report that anything
basically adverse to Griffin was ever put in it. Locurto's
report of July 19 read as follows:
TO: Mr. E. Wrench c.c. to Mr. B. Chernow
FROM: Mr. Locurto, supervisor Zone 18
SUBJECT: Mr. Walter Griffin (Evaluation)
It would be foolish on my part to say that Mr.
Griffin had never made a favorable impression upon
me. When I first took over this zone Mr. Griffin was
zone relief man and I realized that he had good
potential as a district manager. I brought him along as
evidenced by pay raises he received while with me.
However, I came to realize that Mr. Griffin was not
interested in the incentive raise program and that he
felt that he should only perform at the level of money
he was currently making. He feels that raises should be
granted for time on the job and not a reward for a
good job done. I informed Mr. Griffin that time on the
'The words "followed up" in the transcript of the hearing were probably
a court reporter's error for the words "folded up." In his brief the General
Counsel so considered the matter
1055
job mean nothing if his work was unsatisfactory Raises
were on an incentive basis and if his attitude didn't
change he wouldn't get another raise from me.
Mr. Griffin requested a transfer from my zone and
stated so in writing. This request has been forwarded to
Mr. Chernow Mr. Griffin claims there is a personality
conflict here and that I irritate him. This may be so,
but I would like to point out that he is not looked upon
favorably by his fellow workers because of his sharp
mouth. He has a talent for gettin in sharp barbs and
then backing off with the comment "He was only
kidding." As one of his fellow managers said after an
exchange of words, "You put the nail in the shoe, not
me."
I sincerely believe that Mr Griffins trouble does not
stem from me or his fellow workers, but from Mr.
Griffin himself He always believes that he is, to put it
mildly "getting the short end of the stick" and this has
actually gotten to be an office joke. I don't believe he
could really get along well with anyone on the job. He
will do what he is told to do and then make it seem like
a supreme sacrifice
In conclusion, I believe that Mr. Griffin is a
detriment to the operation of my zone and to the
healthy attitude of my managers. I would like to see his
request for transfer granted but I do not believe it
would solve his problem. This is not the job for him.
He has a record of changing jobs and with the
exception of Grummans he has held this the longest He
has felt that someday he was going to "strike it rich,"
but now he realizes that this is not going to happen
Mr. Griffins problem is Mr. Griffin
Sincerely
Joseph Locurto
Supervisor Zone 18
This report was written to Edgar Wrench, Locurto's
superior, with copy to Bertram Chernow, Wrench's
superior whose title was Nassau County home delivery
manager
As to the subject covered in the first paragraph of this
report, there appears to have developed in Griffin a
question, if not a challenge, to Respondent's )ay-incentive
system During a union organizing campaign it is not
unusual for employees to begin to challenge the existing
way of doing things which they have long accepted.
Respondent's system was to grant raises to district
managers as a reward for increasing the number of
newspapers sold in their district The record did not
suggest the existence in Respondent's mind of any
saturation point The district managers were given quotas
for increased sales and were expected to meet the quotas
For making their quotas they would receive bonuses. At
an unidentified time, but presumably during the union
campaign and the wage freeze, witness McAuliffe
overheard Griffin asking Locurto for a raise and
contending that Locurto should recommend him for a
raise based upon his length of time with Newsday. In
about April or May 1968, McAuliffe heard Griffin tell
Locurto that he was doing $110 worth of work and that
that was all he was doing until he got a raise. Griffin
testified that he did not remember if he ever said that, but
he did not deny saying it
One day in about June 1968 Griffin called in that he
would be 20 minutes late and arrived 3 hours late. This is
the only incident in the record involving Griffin's
reporting late to work. On that occasion Respondent did
not discipline Griffin in any way. Griffin testified that
Respondent had relief men who took over in emergencies
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the papers got distributed. On this occasion
Locurto probably cautioned Griffin about being punctual,
but he imposed no discipline, he made no entry in
Griffin's personnel file, and he made no report to his
superiors concerning it. He "kept that" infraction "within
the zone."
Griffin had off Sunday and Monday, July 21 and 22,
1968. He was due at work Tuesday, July 23, but did not
show up and did not call in that he would be absent. His
papers went out by relief men. He was out on a boat with
some friends and they did not get back to land until
Tuesday afternoon. Griffin testified his friends expected to
get him back Tuesday morning in time to go to work
Tuesday. On Wednesday, back at work, Supervisor
Locurto asked Griffin where he had been and Griffin told
him the story. According to Locurto's uncontradicted
testimony the conversation opened with Griffin's saying,
"You'll never guess what happened." Locurto said, "What
happened, did you resign?" The conversation ended with
Locurto 's suspending Griffin indefinitely. Locurto testified
that Griffin "was very surprised." Without contradiction
Griffin testified that he asked Locurto when he would
know when to return to work and the latter replied that
Griffin would be notified. Later that day Locurto wrote a
report to Bernard Chernow, Nassau County home delivery
manager, reading as follows:
Walter Griffin's day off was Monday. On Tuesday,
July 23, 1968 he failed to report to work. Neither I nor
my key man received any phone call from Mr. or Mrs.
Griffin. Emergency measures had to be taken to get his
district out. On Wednesday, July 24, Mr. Griffin
reported to work. He informed me that the reason he
didn't come to work on Tuesday was that he was out
on a boating trip with friends and that they would not
bring him back in time to get to work. To quote him,
"I was outvoted by my friends."
I informed him of the seriousness of the situation
and put him on indefinite suspension . Upon hearing
this, Mr. Griffin seemed to be pleased at having the
time off.
I recommend that Mr. Griffin be removed from the
job because of his attitude with the job and his fellow
workers.
On the witness stand Locurto characterized Griffin's act
as "neglect of duty" rather than "gross insubordination."
Locurto testified he would call it gross insubordination in
employee Piser ' s case , which occurred in the spring of
1968. For this gross insubordination Locurto suspended
Piser not indefinitely but for 3 days, which Locurto later
commuted to 2 days. In going through Piser's worksheet
Locurto discovered that Piser had some delivery boys with
above-average numbers of papers to distribute. Locurto
told Piser to "cut them down and get new boys for those
routes." Piser asked Locurto "where I was going to get
the boys and all that stuff, and that led to a big
argument ." Piser testified he got up and walked out.
Locurto testified Piser "stormed out of the office."
Shortly thereafter Piser returned and apologized and said
he had done it in a fit of temper. Locurto suspended Piser
for 3 days, telling him that since he had done this in front
of "all" the district managers he would have to suspend
him. After only 2 days had elapsed Locurto called Piser
back to work. The record does not reveal Piser's
sympathy for or against the Union.
Within 2 or 3 days after Locurto suspended Griffin for
an indefinite period, Locurto told employee Piser that
Griffin had quit.
On about the Friday before Respondent notified Griffin
to be in Head Supervisor Wrench's office at a certain time
on Monday morning, August 5, 1968. Griffin reported as
directed and was escorted by Wrench into the office of
Nassau County Home Delivery Manager Bernard
Chernow. After a conversation, the nature of which was in
dispute in the evidence, Chernow discharged Griffin.
Respondent's termination form showed as the reason for
Griffin's termination, "Discharged, Insubordination
(Gross Misconduct)."
C. Findings Based Upon Disputed Testimony
The findings in this section are based upon disputed
testimony in the record.
Many district managers and some supervisors in zones
18 and 8 participated in a bowling league which bowled
once a week in September, October and November 1967
until the bowling place went bankrupt at about the end of
November. Griffin testified that after the district
managers became involved with the Union in November,
as they were talking over drinks after bowling,6 Chernow
would say that:
anybody that got involved with this union was foolish,
because Mr. Guggenheim' would never stand for a
union in the circulation department, the newspaper
would close down.
Griffin testified that once Chernow, looking right at
Griffin and using a vulgar phrase said that "anybody that
would sign a card for the Union is a ....." Chernow
added that,
The fellows would stick with the Company and didn't
get involved in this union business would be a lot better
off because the Company would take care of them .. .
just don't get involved with the Union.
Griffin testified further that
The day of the election a few of us had decided if the
outcome was in our favor that we would meet down
there [at the Garden City Bowl] and celebrate and have
a few drinks. When I got there, to my amazement, my
people weren't there. The people I was involved with
weren't there. Mr Locurto was there and Mr. Chernow
was there and Mr. Soroka was there .... Mr. Locurto
left immediately and I sat down and began speaking
with Mr. Soroka. After a short period of time talking,
Mr. Chernow come over and said, "Well, it's over now
and I'm going to get you now." He said, "You want to
put me out of a job and you want to put my wife and
kids out in the street." He said, "Now it's my turn. I'm
going to get you . If you were smart, you would
quit the job now. Do yourself a favor and quit now.
You can forget about using Newsday as a reference
because you're blackballed ... with any paper that you
go and apply for a job with."
Asked what he replied, Griffin testified,
There wasn't too much I could say. I told him I didn't
plan to quit, that I planned to keep the job, that I liked
the job. I told him, "If you're going to get me, do it
right away, get it over with." I said, "Get me right
away." He said he would do it in his own good time,
when he was ready. He said "I'll be watching for you."
On the witness stand Chernow substantially denied all
of Griffin's above testimony except his alleged promise of
benefit to the effect that the Company would take care of
'Griffin was in error in placing these conversations in April 1968.
'Mr. Guggenheim is the owner of Newsday.
NEWSDAY, INC. 1057
those who didn't get involved with the Union. As on its
face this undenied statement was a promise of benefit to
employees for not exercising Section 7 rights, it would be
a violation of Section 8(a)(1) but for the fact that it is
barred as a violation by Section 10(b). It was admissible
as background evidence, however, and shows Chernow's
bias against the Union. Chernow admitted being at the
Garden City Bowl after the election and asking Griffin to
have a drink along with other "Newsday people" but he
did not recollect discussing the election with Griffin on
that occasion.' Upon the entire record I credit Griffin's
testimony and find that in the fall of 1967 Chernow stated
to employees that Respondent would close down rather
than have a union in the circulation department This was
10(b) evidence properly usable as background evidence.
The record testimony is in dispute concerning the events
during the 11 days between Griffin's suspension on July 24
and his discharge on August 5. Griffin testified, credibly
as it seems to me, that after not hearing from Respondent
for a few days he did two things to find out when he was
to return to work: He called his zone office and he applied
to the proper authority for unemployment compensation.
Griffin testified that he knew Respondent would have to
answer his claim for the latter and that it would therefore
contact him. When he called the zone 18 office he reached
the acting supervisor, McAuliffe, in Locurto's absence,
and asked him when he was to return to work. According
to Griffin, McAuliffe replied that he had heard nothing
about it, that he would find out what he could. Hearing
nothing further, Griffin applied for compensation.
Respondent's testimony concerning this period was
self-contradictory and in disarray. Acting Supervisor
McAuliffe testified that in accordance with his instructions
from Locurto he told Griffin, when the latter called, that
Griffin was to contact Locurto's superior, Head
Supervisor Wrench. Locurto testified nothing about any
such instructions. McAuliffe said he tried repeatedly the
week beginning July 28 to reach Griffin by telephone but
without success. He testified that at a supervisors' meeting
on Friday, August 2, Wrench asked him if he had heard
from Griffin and he replied in the negative, and that
Wrench instructed him to use every means to reach
Griffin. Despite these instructions McAuliffe did not write
or telegraph Griffin, but tried to reach him only by
telephone. Finally he asked Piser to contact Griffin, and
Piser reached Griffin by telephone, apparently without any
difficulty.
Wrench testified nothing about asking McAuliffe to get
in touch with Griffin until Friday, August 2, when Wrench
and McAuliffe were in attendance at a supervisors'
meeting in Garden City. At that time Wrench told
McAuliffe to contact Griffin and tell him to report to
Wrench's office at 9 a.m. Monday, August 5.
In any case, as Respondent had suspended Griffin for
an indefinite period the burden was on Respondent to
contact Griffin and tell him when next to report for work.
It never did so. It could have written him, sent him a
telegram calling him back to work. It never did either.
Concerning the termination interview on August 5,
Griffin testified without contradiction that the first thing
Chernow said was to ask Griffin where he had been the
last 2 weeks. Griffin replied that he was suspended and
'Soroka was in the hearing room under subpoena by the General
Counsel , who announced at the end of his case-in-chief that he was not
going to call him as a witness but that he was available to Respondent.
The latter did not call him either . Under these circumstances I draw no
inference from the failure of either side to use him as a witness
was told to wait until he was called back in. Chernow said
that Griffin should have called the office every day until
he was told to return to work. Griffin repeated that he
had been told he would be notified, which, as has been
seen above, is what Locurto told him. Under these
circumstances I find that Griffin had no duty to call the
office.
Chernow then abandoned that line, and asked Griffin if
he still wanted the job or if he was going to quit. As a
witness Chernow admitted he asked Griffin if he wanted
to resign. Griffin replied that he was not going to quit
Chernow said that then Griffin would be sent to zone 8.'
Griffin replied that before he went there he had some
questions he would like to have answered, that he would
like to know how he stood on getting raises and what his
future was with the Company. According to Griffin's
credited and undenied testimony Chernow replied that
Griffin was not here to ask questions, that Griffin was not
a supervisor, that Griffin was here to do what he was told.
Chernow testified that Griffin demanded an immediate
10-cent raise and wanted the schedule on which he would
get additional raises. Given an opportunity, Head
Supervisor Wrench did not corroborate this testimony
His testimony corroborated Griffin's to the effect that
Griffin asked to know his status with the Company and
that he did not ask for an immediate raise in a specific
amount I credit the testimony of Griffin and Wrench in
this regard.
Then, Chernow told Griffin that he could go to zone 8
or he could quit. Griffin replied that he wasn't quitting,
and that before he went to zone 8 he would like to have
his questions answered. Griffin admitted that he expressed
this view several times. Then Chernow said, "Okay
Griffin, I am going to make it easy for you. You're
fired."
Wrench at first testified that Griffin expressed a refusal
to go to zone 8 by being adamant on wanting to know
what his status was. Then Wrench testified that Griffin
actually said he would not go to zone 8. Chernow testified
that Griffin refused to go to zone 8. Griffin denied that he
refused to go there or ever told Chernow that he was not
going to report to zone 8. Griffin admitted insisting that
he wanted his questions answered first. Under all the
circumstances of this case Griffin's testimony is credible.
D. Analysis and Conclusions
Locurto testified that Griffin was the first employee he
ever recommended for discharge in his 12 years as a
supervisor with Respondent. He recommended this harsh
penalty for what he considered Griffin's "neglect of duty"
whereas a few months before he had merely laid off
employee Piser for 3 days and commuted it to two for
what Locurto considered Piser's "gross insubordination."
Piser had in fact become angry, had a "big argument"
with Locurto, had refused to do what Locurto directed
him to do, according to Locurto's credited testimony, and
had "stormed out of the office." In the Griffin case there
were no angry words, there was no confrontation, and
there were understandable extenuating circumstances; and
although Griffin's papers had been distributed at some
inconvenience to, it was apparently at no additional cost
to, Respondent. Further Locurto's act of suspending
Griffin indefinitely caused Locurto to have to break in a
'The testimony was in dispute as to whether zone 8 was a less desirable
station than other zones from the employees' point of view Griffin
considered it less desirable
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new man in Griffin's place and to delay the beginning of
his own vacation for abour 4 days. To suspend Griffin for
an indefinite period Locurto was evidently willing to delay
the start of his vacation. To have suspended him for 2 or
3 days would have required only a temporary substitute
and probably no delay in the start of Locurto's vacation.
Although Locurto and Griffin had been having
differences of opinion over the Union and Locurto had
talked to Griffin about his "attitude" for many months,
Locurto never wrote any basically adverse report on
Griffin until July 19, 3 days after the election This
coincided in time with Chernow's alleged postelection
threat to "get" Griffin at the first opportunity. The record
contains no explanation for Locurto's failure to report to
higher management earlier Griffin's alleged "improper"
attitude, or for his decision to keep "within the zone"
Griffin's 3 hour tardiness one day in June. Although
Locurto cautioned Griffin about punctuality once or twice,
he never warned or threatened Griffin that unpunctuality
or anything else about his work or attitude might cost him
his job. Griffin testified he did not have a bad attendance
record, and indeed the record shows only the one incident
of Griffin's tardiness and the one incident of his absence
in his 2 years of employment with Respondent.
It is fair to believe on this record that if Locurto had
considered anything about Griffin's work performance or
attitude a sufficient ground for Griffin's discharge he
would have so recorded in writing long before the lapse of
some 7 or 8 months, the period of his alleged unhappiness
with Griffin's performance. The fact that he made his first
adverse report immediately after the election lends
credence to the thought that he was beginning to set the
stage for Griffin's eventual elimination because of his
union activities. This fact also gives credence to Griffin's
testimony that just after the election Chernow urged him
to quit and threatened to "get" him in his own good time.
An additional fact also gives credence to Griffin's
testimony concerning this post-election conversation with
Chernow This is Respondent's other suggestions and
questions to Griffin at about the same time, that he quit.
Thus a few days after the election Locurto asked Griffin if
he was going to quit his job, Griffin replying in the
negative. And the first thing Locurto said to Griffin when
he saw him after the boating party was, "What happened?
Did you resign?" So occupied was Locurto with the
concept that he told Piser that Griffin had quit. Further,
early in the termination interview Chernow asked Griffin
if he was going to quit, Griffin again replying in the
negative. These several admitted implied suggestions by
management to Griffin that he quit strongly suggest to me
the accuracy and credibility of Griffin's testimony that at
the Garden City Bowl the day of and shortly after the
election Chernow urged him to quit and threatened to get
him.
Yet another fact gives credence to Griffin's testimony
concerning this Chernow incident just after the election.
This was Griffin' s expressed concern to Locurto a few
days later and to Chernow in the terminal interview as to
how he stood with the Company, how was his future with
the Company. As Locurto had never threatened Griffin's
job in all of his remarks to Griffin about his attitude, the
source of Griffin's expressed concern about his standing
and his future with the Company must have been
Chernow's alleged threats to him at the Garden City Bowi
on July 16. Griffin testified as much. No other source was
convincingly shown in the record.
Upon the above facts and considerations and upon the
preponderance of the evidence in the entire record
considered as a whole I believe and credit Griffin's
testimony concerning what Chernow told him at the
Garden City Bowl immediately after the election on July
16. I find that on this occasion Chernow threatened to
discharge Griffin and to blackball him in the industry
when he found an appropriate occasion, because of
Griffin's sympathy and activity for the Union, and to
discourage further union activity in the circulation
department. By these threats Respondent further violated
Section 8(a)(1) of the Act.
Quite clearly Chernow had great fear of the Union in
the circulation department. He considered that it would
put him out of his job that he had held for 18 years,
almost since the start of Newsday, and that it would cost
him his home and put his "wife and kids out in the
street ." Also quite clearly Chernow would not take kindly
to collective bargaining or the presence of the Union in
the circulation department; he considered that, at least
upon occasion, employees were not to ask questions (even
about their future with the Company); they were there to
do what he told them to do.
The record does not show how Respondent gets along
with the Union or the other unions with which it has
agreements. The fact that it has a contract with the Union
covering presumably the pressmen is not evidence that it
does not vigorously oppose the Union in its circulation
department. As analysis of the record reveals that Griffin
was telling the truth about the July 16 event and that
Chernow was not, I find that as between the two Griffin
was the more credible witness. Based upon this finding I
credit Griffin's testimony that over drinks after bowling
Chernow would threaten that owner Guggenheim would
never stand for a union in the circulation department and
that, rather, he would close the paper down. Inasmuch as
90 percent of Respondent's circulation depends upon
home delivery, Respondent may well have been concerned
to keep the Union out of that department. Certainly there
was no proof that this was an idle threat or that Chernow
so intended it or Griffin so understood it.
By the depth of his commitment to the Union and his
union activities related above, and his obvious strength of
will which shows clearly throughout this record, Griffin
was clearly a threat to those who wished to keep the
Union out of the circulation department, which certainly
included Chernow and Locurto. It was these two who
effected the suspension, transfer, and discharge of Griffin.
By suspending Griffin for an indefinite period Locurto
meted out the strongest penalty he ever gave an employee
in his 12 years as a zone supervisor. Then he went beyond
that and in his written report addressed directly to
Chernow (by-passing Wrench) he recommended discharge.
Indefinite suspension and discharge were much stronger
penalties than he had dealt Piser for face-to-face
insubordination not connected with a union These
penalties to Griffin, with no previous warning to his job
by Locurto, showed a depth of feeling in Locurto which
was attributable on this record only to their long
differences over the union issue . The fact that Locurto
by-passed Wrench, who was between them in the company
hierarchy , suggests there was an understanding between
Locurto and Chernow concerning the disposing of Griffin.
Chernow's action at the terminal interview were clearly
designed to carry out his July 16 threat to get rid of
Griffin Griffin not having quit even when suspended, and
still not willing to quit while in Chernow's presence, the
latter undertook from the beginning of the interview to
provoke Griffin and to corner him so as to have a pretext
to fire him. First he challenged him as to where he had
NEWSDAY, INC. 1059
been the last 2 weeks and- went so far as to state to Griffin
that he should have called the office every day until he
was called back to work: Then having asked him if he was
going to quit he said he was transferring him to zone 8.
He transferred him even though Griffin had told Locurto
shortly after July 16 that he had changed his mind and did
not want to transfer. Although the record does not
specifically show that Locurto relayed this information to
Chernow, the record does strongly suggest that the two of
them were completely filled in on the Griffin situation.
Upon the preponderance of the evidence in the entire
record considered as a whole I hold that during the
terminal interview Chernow knew Griffin had told
Locurto he no longer wanted to transfer.
Chernow' s repeated refusals to answer Griffin's
questions concerning his status and future is further
evidence of Chernow' s design to provoke Griffin into
something that would give Chernow a pretext on which to
rest his intended dismissal of Griffin. In view of
Chernow's earlier threats to "get" Griffin and to blackball
him, Griffin's insistence upon answers to his questions
before accepting the transfer were completely
understandable and justifiable and did not amount to a
refusal to go to zone 8. Even if Griffin said he would not
transfer until he received answers to his questions, under
all the circumstances this did not amount to
insubordination or refusal of an order. Griffin could sense
what Chernow was trying to do to him and had a right to
try to protect his job.
Finally in desperation Chernow discharged Griffin on
the pretext that Griffin's behavior amounted to
insubordination and gross misconduct . I find on the entire
record that Griffin's behavior was neither, and that the
dismissal was merely the execution of Chernow's intent
expressed on July, 16 to get rid of Griffin when he could
find a good excuse because of Griffin's union sympathy
and activities . By such discharge , as well as Griffin's
indefinite suspension and transfer , all made by
Respondent with the same purpose and for the same
anti-union reasons, Respondent violated Section 8(a)(3)
and (1) of the Act.
This Decision does not say that Respondent could not
have disciplined Griffin for his boating party absence in a
reasonable manner consistent ' with Respondent's past
relations with `its employees. This Decision says that what
Respondent did, instead , was a violation of the Act.
position, without prejudice to his seniority or other rights
and privileges, and to make him whole for any loss of pay
suffered by reason of the discrimination by paying to him
a sum of money equivalent to the amount he normally
would have earned as wages from the date of his indefinite
suspension, July 24, 1968, to the date of the offer of
reinstatement, less his net earnings during such period.
The backpay shall be computed on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6
percent as ascertained by the formula adopted in Isis
Plumbing & Heating Co., 138 NLRB 716. If in
connection with his reinstatement Griffin expresses in
writing to Respondent that he wishes to transfer to some
zone other than Locurto's zone, Respondent will transfer
him to some other zone acceptable to Griffin. In this
connection the record shows there are 22 zones in Nassau
County.
As provided in the Woolworth case, I recommend
further that Respondent make available to the Board,
upon request, payroll and other records in order to
facilitate the checking of the amounts of backpay due.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Newsday, Inc, of Garden City, New York, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Nassau County Printing, Pressmen, and Assistants
Union, Local 40, International Printing Pressmen and
Assistants Union of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By threatening to discharge Walter Griffin and to
blackball him in the newspaper industry, because of his
union sympathy and activity, Respondent violated Section
8(a)(1) of the Act
4. By discriminatorily suspending, transferring, and
discharging Walter Griffin because of his union
sympathies and activities and to discourage further union
activity in the circulation department, Respondent violated
Section 8(a)(3) and (1) of the Act.
5. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent's
operations described in section I, above , have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. -THE REMEDY
I recommend the customary broad cease-and-desist
order and the affirmative relief conventionally ordered in
cases of this nature , where Respondent's unfair labor
practices were of a character which struck at the roots of
employee rights safeguarded by the Act.
To remedy its discriminatory suspension and discharge
of Walter Griffin, Respondent will be required to offer
him reinstatement to his former or substantially equivalent
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the preponderance of the
evidence in the entire record considered as a whole, I
recommend that Newsday, Inc., of Garden City, New
York, its officers, agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Threatening to discharge or otherwise discriminate
against employees and to blackball them in the newspaper
industry, because of their union sympathy and activity.
(b) Discriminatorily suspending, transferring, or
discharging employees because of their union sympathy
and activity and to discourage further union activity in the
circulation department.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist any labor organization, to engage in concerted
activities for the purposes of collective bargaining or other
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual aid or protection, or to refrain from any or all
such activity, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of
1959
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Offer to Walter Griffin reinstatement to his former
or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole in the manner prescribed in the portion of the Trial
Examiner's Decision entitled "The Remedy" for any loss
of earnings suffered by reason of the discrimination
against him.
(b) Notify Walter Griffin if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its main office in Garden City and at each
of its zone offices copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 29 (Brooklyn, New
York), after being duly signed by Respondent' s authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
employees that-
WE WILL offer to Walter Griffin immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other
rights and privileges previously enjoyed , in accordance
with the recommendations of the Trial Examiner's
Decision.
WE WILL notify Walter Griffin if presently serving in
the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
WE WILL make whole Walter Griffin for any loss of
pay suffered by him by reason of the discrimination
practiced against him, in accordance with the
recommendation of the Trial Examiner ' s Decision
WE WILL NOT suspend , transfer, discharge , or in any
other way discriminate against any employee because of
his union membership or activities.
WE WILL NOT threaten to discharge any employee or
to blackball any employee in the newspaper industry,
because of his union sympathy or activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organizations,
to join or assist Nassau County Printing, Pressmen,
and Assistants Union , Local 40, International Printing
Pressmen and Assistants Union of North America,
AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own
choosing , and to engage in other concerted activities for
the purposes of collective bargaining or any other
mutual aid or protection or to refrain from any and all
such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor - Management Reporting and Disclosure Act
of 1959
All our employees are free to become , remain, or
refrain from becoming or remaining, members of Nassau
County Printing , Pressmen , and Assistants Union, Local
40, International Printing Pressmen and Assistants Union
of North America , AFL-CIO, or of any other labor
organization.
Dated By
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
NEWSDAY, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
212-596-5386.
* U $ GOVERNMENT PRINTING OFFICE 1971 0-384-270