Newsday, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1985

274 N.L.R.B. 86 (N.L.R.B. 1985)

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newsday, Inc. and Newspaper and Mail Deliverers
Union of New York and Vicinity . Cases 29-
CA-9041 and 29-RC-53871
14 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 July 1982 Administrative Law Judge
Arthur A. Herman issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed a brief in opposition to those exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint in Case 29-
CA-9041 is dismissed, and the challenges to the
ballots in Case 29-RC-5387 are sustained and the
petition in that case is dismissed.
i Local 406, International Printing and Graphic Communications
Union, AFL-CIO was allowed to intervene in these proceedings.
2 We find no evidence in the record to support the General Counsel's
claim that employees George Schwartz, Mark Fazzio, John Dragon, and
Mike Crecenzo were at any time acting as agents of the Respondent We
also find no merit to the General Counsel's claim that the Respondent,
through Supervisor Terry Ragone, threatened employee Schwartz be-
cause this matter was neither alleged in the complaint nor fully litigated
at the hearing We further note that, while the judge did not specifically
rule on an alleged threat made by Supervisor Kepko to Schwartz, he
nevertheless found Kepko to be a generally reliable witness and discredit-
ed Schwartz' testimony when it conflicted with Kepko's Under these cir-
cumstances , we credit Kepko's denial that he threatened Schwartz
3 In finding that the Respondent did not violate Sec 8 (a)(3) and (4) of
the Act by refusing to rehire Joseph and Jeff Appel, the judge inadvert-
ently stated that he was "constrained to agree with the General Counsel
that Respondent was discriminatorily motivated in refusing to rehire the
Appel brothers " It is apparent from his finding, which we adopt, that
the judge, in fact, found no merit in the General Counsel's contentions
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge
This consolidated proceeding was heard before me in
Brooklyn, New York, on November 16-18, 20, 23, and
25, 1981, and December 7 and 8, 1981.1 The charge
which gave rise to this proceeding was filed on July 22,
by the Newspaper and Mail Deliverers Union of New
York and Vicinity (the Union or NMDU), and culminat-
ed in the issuance of a complaint and notice of hearing in
Case 29-CA-9041 on September 30 Essentially , it is al-
i All events occurred in 1981 unless otherwise indicated
leged that Newsday, Inc. (Respondent or Company) vio-
lated Section 8(a)(1), (3), and (4) of the National Labor
Relations Act by forcing an alleged supervisor, through
threats and promises, to engage in acts of surveillance
and interrogation of employees with respect to their
union activities, by interrogating employees concerning
their sympathies for NMDU, by warning and directing
employees to refrain from joining the NMDU or to give
support to it, by discontinuing its carter and wholesaler
operation and terminating its carters and wholesalers in
order to eliminate a separate bargaining unit , found to be
appropriate by the Regional Director, to avoid the possi-
bility of bargaining with the NMDU, by assigning those
carters and wholesalers who were rehired to work in the
delivery employees unit represented by Local 406, Inter-
national Printing and Graphic Communications Union,
AFL-CIO (Local 406) but assigning them to more oner-
ous routes than they previously serviced, and by refusing
to offer employment to certain named carters and whole-
salers because the employees assisted and gave testimony
favoring the NMDU. Respondent's duly filed answer
denies the commission of unfair labor practices.
The Union is also the Petitioner in Case 29-RC-5387
filed on April 22 In a Decision, Order, and Direction of
Election issued by the Regional Director on July 22, it
was determined that the carters and wholesalers em-
ployed by Newsday constitute a separate appropriate
unit of employees.2 At the subsequent election conduct-
ed on August 20, Respondent challenged the ballots of
all the employees on the eligibility list contending that
they were not in the unit, and the ballots were impound-
ed. On September 30, Regional Director Kaynard issued
a supplemental decision, order consolidating cases and
notice of hearing,3 consolidating Cases 29-CA-9041 and
29-RC-5387 for hearing, inasmuch as a resolution of the
issue of discriminatory discharge would also resolve the
challenge status of the employees
On the entire record,4 including my observation of the
witnesses, and after due consideration of the comprehen-
sive brief filed by Respondent's I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation engaged in the
publication, sale, and distribution of a daily newspaper,
maintains its principal office and place of business in
Melville, New York. In the course and conduct of its
newspaper operations, Respondent has an annual gross
volume of business in excess of $200,000. Respondent
holds membership in, or subscribes to, interstate news
2 Respondent's request for review of this decision was denied by the
Board
3 Inadvertently, Local 406, rather than the NMDU , was named as the
charging party in the caption of that supplemental decision
4 Subsequent to the close of hearing , Respondent filed an unopposed
motion to correct the record in several respects I have reviewed the sug-
gested corrections and grant the motion Accordingly, I receive into evi-
dence Respondent's motion to correct record as R Exh 64
6 I have also considered a memorandum filed by Local 406, and clos-
ing oral arguments urged by the General Counsel and the Union on the
record
274 NLRB No. 19
NEWSDAY, INC
services , publishes nationally syndicated features ; and ad-
vertises nationally sold products . The complaint alleges,
Respondent admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent admits, and I find
that NMDU and Local 406 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE APPROPRIATE UNITS
A. Respondent admits, and I find, that at all times ma-
terial Respondent has employed full-time and regular
part-time newspaper delivery employees consisting of
drivers and helpers in its transportation department, that
said drivers operate trucks to transport Respondent's
newspapers daily to various retail outlets, that said em-
ployees have been and presently are represented by
Local 406 for collective-bargaining purposes, and that
said employees constitute a unit appropriate for collec-
tive bargaining.
B. Respondent admits, and I find, that at all times ma-
terial herein a unit of all full-time and regular part-time
carters and wholesalers employed by Respondent, ex-
cluding newspaper delivery employees represented by
Local 406, constituted a separate appropriate unit for
collective-bargaining purposes.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in publishing a daily and
Sunday newspaper. Its daily circulation exceeds 500,000
copies of which 75 percent is delivered directly to resi-
dences by carrier boys and 25 percent sold via single
copy sales outlets.6 Its major area of distribution is
Nassau, Suffolk, and Queens counties, with additional
sales in parts of Brooklyn and Manhattan. On May 1,
1970, the Times Mirror Company, a California-based or-
ganization, acquired Newsday. At that time, home deliv-
ery of the newspaper constituted 90 percent of its sales,
with single copy sales accounting for the balance; News-
day's penetration of the newspaper market in Nassau and
Suffolk counties, at that time, was approximately 67 per-
cent. Also, at that time, home delivery and the major
portion of single copy sales deliveries were performed by
truckdriver employees, represented by Local 406, using
Newsday trucks, and working out of the Respondent's
transportation department. A small portion of single
copy sales deliveries was accomplished by employees in
Respondent's circulation department, called industrial
plant sales persons, who used their own vehicles to de-
liver papers to industrial plants. These employees were
not represented by Local 406
In 1971, with the influx of small industry in Nassau
and Suffolk counties, a decision was made to concentrate
on expanding Respondent's single copy sales area so as
6 Such outlets include retail stores, vending machines , and industrial
plants
87
to increase total circulation In 1972, Newsday changed
its press time from 7:30 to 5:30 a.m. This improved deliv-
ery to both home subscribers and single copy sales out-
lets. Also, Respondent sought to expand the number of
dealers selling Newsday,' and systematically eliminated
the industrial plant sales persons and replaced them with
wholesalers because it felt that it would enhance the
chance of making additional sales if an incentive were of-
fered.8 This system was initiated in Nassau county in
1973, and then continued on into Suffolk county. How-
ever, since the routes in Suffolk were smaller than
Nassau and more widespread, Respondent devised a
system of using carters,9 rather than wholesalers, so as to
make it more attractive to participants. As the carter's
route increased, the route would be turned over to
wholesalers. The last area developed was Queens county
where the deliverers were principally carters.10
With the advent of these independent wholesalers and
carters, Respondent began receiving complaints from
Local 406 regarding the use of the independents to per-
form deliveries similar to those performed by the drivers
in the transportation department represented by Local
406. During the course of the negotiations in 1974,
which resulted in a 3-year collective-bargaining agree-
ment for the drivers and drivers' helpers in the transpor-
tation department, one of Local 406's proposals demand-
ed that "All newspapers delivered to dealers, bulk drops,
vending machines and circulation employee shall be
solely delivered by employee of transportation dept. cov-
ered by this agreement."" As a result, Respondent
promised to make every effort to give single copy sales
deliveries to employees in the transportation department
when operational needs dictated it. And, in fact, some
dealer transfers were effectuated thereafter However,
Local 406 was not satisfied with what it regarded as an
insubstantial amount of transfers, and renewed its request
at weekly meetings with management. And, when nego-
tiations for a new collective-bargaining agreement took
place in 1977, Local 406 proposed "Only employees cov-
ered by this agreement will deliver to all retail outlets
and home delivery distribution points." 12 This request
was in even stronger terms than previously because of
the steady growth in single copy sales. With that, Re-
spondent renewed its promise made in 1974, and commit-
ted itself that when Respondent's plant gets moved from
Garden City to Melville, which move had been planned
since 1974 and which came to fruition in September and
October 1979, deliveries to single copy sales outlets in
7 Single copy sales representatives were created for this purpose and
they will be discussed, infra
8 Wholesalers purchased newspapers from Newsday at a reduced price
and sold them to single copy dealers, retaining the difference in price as
their profit Some of the industrial plant salespersons became wholesalers
8 Carters were paid a single flat fee which took into account their
hours of work , mileage, and vehicle expenses Both wholesalers and
carters used their own vehicles, and generally, working for Newsday
constituted a part-time activity for them
10 Stanley Asimov, a vice president of Newsday, testified that the
single copy sales went from approximately 45,000 in 1973 to 106,000 in
February 1981 He also stated that the average number of pages in the
newspaper increased as well.
R Exh 51
12 R Exh 52
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Huntington and Bayshore areas would be given over
to Local 406 . 13 In point of fact , these transfers were ac-
complished in October 1979 One other point of friction
was also eliminated after the move to Melville Prior
thereto the wholesalers and carters were picking up their
papers at the plant and that irritated Local 406 ; to allevi-
ate the situation , arrangements were made to have truck-
drivers deliver papers to a depot at Gear Avenue , rather
than the Melville plant, and have the independents pick
them up there . With the continuous growth of single
copy sales outlets, however, there were no longer out-of-
the-way locations involved; in fact , truckdrivers and in-
dependents were finding themselves delivering papers on
the same streets , this, plus the increased size of the paper
itself, was causing distribution problems for both systems
and a solution had to be found . In addition, in the
summer of 1980, Respondent was looking into the possi-
bility of early morning delivery to single copy sales out-
lets so as to increase sales even more in that direction.14
From here on, the record is replete with uncontrovert-
ed testimony by Respondent 's witnesses as to the steps
taken to achieve new circulation gains and assuage Local
406 at the same time. Through Asimov , Respondent in-
troduced 47 exhibits" which depict the various studies,
charts, meetings , and analysis engaged in by Respondent
from early 1980 through the spring of 1981 concerning,
first , the feasibility of an earlier Saturday delivery
system , and then expanding the study to cover deliveries,
Monday through Saturday , in Nassau , Suffolk and
Queens counties . Such an undertaking required thorough
reports from various departments , i.e., transportation,
editorial , circulation , and production , advising top man-
agement of projected costs involved in each of several
possible earlier press starts . Donald Wright , the president
and chief operating officer of Newsday, testified that by
September 1980, while he was examining the figures that
had been provided regarding the cost of the dual deliv-
ery system , the thought came to him that perhaps in ad-
dition to a cost advantage , there were other advantages
that might be gained from' a consolidated delivery
system , i.e , better control, better efficiency , and better
employee relations . And so, by December 1980, it was
decided that Newsday would conduct a pilot program of
delivery to dealers before 7:00 a.m ., using only employee
drivers represented by Local 406 . Wright stated that this
would give Respondent the close control that it needed
over the program , and at the same time, avoid creating
any difficulties with Local 406. Representative dealers in
the three counties were elected and the implementation
date for the commencement of the pilot program was set
for February 23, 1981 . In the meantime , however, Local
406 advised Newsday on January 8 , 1981, that unless
they resolved their dispute, i . e., that all bulk delivery of
newspapers by Newsday shall be performed under the
jurisdiction of the Local 406 collective-bargaining agree-
ment , Local 406 would file, an arbitration demand with
the American Arbitration Association. Whereupon,
Wright authorized Daniel Mannix, Newsday's director of
employee relations , to discuss the ensuing pilot program
with George Tedeschi , president of Local 406 . Mannix
had previously told Tedeschi, off the record, about the
forthcoming pilot program because he felt that good re-
sults with the program would go a long way in solving
the friction that existed between Local 406 and News-
day. And so Mannix now advised Tedeschi officially and
proceeded to discuss with him the details of the pilot
program 16
As scheduled , the pilot program began on February
23, 1981 . Within 1 month 's time, everyone is agreed, the
pilot program proved to be a great success. All of the
departments listed above, i.e., transportation , editorial,
circulation , and production reported favorably on the
pilot program early press time, and the sales figures
showed an increase of 48 percent for the first 4 weeks
because of the earlier delivery time to dealers. Armed
with all of these foreseeable advantages , management de-
cided in March and April to proceed to full implementa-
tion of the program , with a consolidated delivery system,
by July 1, and with an early press start of 3 a .m. Its rea-
sons for choosing July 1 as the desired implementation
date for the project were expressed by Wright : ( 1) Circu-
lation and the amount of advertising in the summer is
less, making for a smaller paper to deliver ; (2) better
weather in the summer makes deliveries easier; (3) an
August advertising rate increase was planned, and in-
creased sales in July would justify the demand for an in-
crease; and (4) the potential for increased sales was so
good that management wanted to get it started as soon
as possible. Wright further stated that no general an-
nouncement of the forthcoming plan was made in March
and April because Newsday did not want to alert its
competition to what was happening , and it did not want
to disrupt its delivery system by announcing , in advance,
the planned consolidation of transportation . Wright's rea-
sons for adopting a consolidated delivery system includ-
ed (1) better control over the 'scheduling of vehicles in
one transportation department ; (2) more economical and
efficient to have a single -integrated system; (3) one
grouping of employees allows for interchangeability
which leads to more efficiency; (4) the transportation de-
partment rate of turnover was less than the turnover rate
of independent drivers and , by eliminating the latter, the
turnover rate would be reduced ; (5) the time spent by
sales department personnel engaged in assisting the inde-
pendents prepare their deliveries would be eliminated
and thereby allow them to concentrate exclusively on
sales; and (6) eliminate the jurisdictional dispute that
Newsday was having with Local 406 once and for all.
15 The 1977 negotiations culminated in the execution of a 5-year col-
lective-bargaining agreement which will expire on July 23, 1982
14 At this point in time , the truckdrivers represented by Local 406
were delivering all of the home delivery newspapers to district depots
from which carrier boys delivered the papers to the homes , and about 50
percent of the newspapers to single copy sales outlets The balance was
being delivered by wholesalers and carters
15 R Exhs 5-51
16 According to Mannix, the major problem confronting Newsday was
the fact that the Local 406 contract did not provide for part-time em-
ployees, and that this problem had to be solved if the pilot program were
to be successful A victory by Local 406 in an arbitration proceeding
would bind Newsday to use only full -time drivers , and Newsday had
hoped to negotiate an arrangement with Local 406 to allow for the em-
ployment of part-time drivers
NEWSDAY, INC
B. The Alleged Unfair Labor Practices Which
Occurred Prior to July 1, 1981
With all of this background we turn now to the orga-
nizing efforts of NMDU. Barry Mark , a former carter
and presently a driver for Newsday, testified that he had
a conversation with George Schwartz , a single copy
sales representative for Newsday , around January 20, 17
in which Schwartz told him that Newsday intended to
cut down the size of the wholesalers' routes and increase
the number of routes . Because of Schwartz ' remark,
Mark sought union representation . During the last week
in January , he contacted NMDU by phone, and met
with union representatives the first week of February. A
meeting with other carters and wholesalers was arranged
for March 20, at a Ramada Inn, and about 30 independ-
ents showed up. Shortly thereafter , Schwartz was called
into Vincent Bordash 's office . 18 According to Schwartz,
Jerry Muro , the circulation manager , and Chuck Law-
rence, the single copy sales manager , were present 19
Schwartz stated that the meeting started with some small
talk, and then:
[Bordash] said he had heard that there was some
talk or grievances that the independents were upset,
and he wanted to find out the reasons why. He
asked me to call Barry Mark, being I was a friend
of his, to ask him if he could find out-if I could
find out what the grievances were with the cartage
drivers and if I could speak with my wife to find
out what the grievances were with the wholesale
drivers.20
Mr. Bordash asked me at that point, "How much
do you depend on your wife's income?"
I told him at that time, being we had just pur-
chased a house, went into contract on a house, that
her income was vital to us and I depended an awful
lot upon it.
Jokingly he said it would be nice if his wife had a
wholesale route.
At that point Jerry Muro asked me how many
hours she had worked on the route, and I had told
him it was approximately 35 hours a week that she
had put into the route.
He asked me how much she made. I told him
about $300 to $325 a week.
He asked me at that point if she would be inter-
ested in working, or maybe some type arrangement
could be made her going to work full-time as a reg-
ular Newsday employee.
I told him at that time I'm not sure she would be
interested; however, I would ask her and get back
to him on it.
Mr. Bordash concluded as far as that part by
saying, "Please don't forget to call Barry and let me
know the results."
11 At first, Mark said he believed this conversation took place in
March, then he said he thought it took place the last week in February,
when the General Counsel showed Mark his affidavit, Mark then recalled
that the conversation took place around January 20
11 Bordash is Newsday's circulation director
19 Lawrence reports to Muro, who in turn reports to Bordash
90 Schwartz' wife, Barbara, was a wholesaler
89
He asked me also at that meeting if I ever heard
of the NMDU, and I told him no.
He explained to me it was the National Mail
Drivers Union, and briefly stated exactly what type
of union it was, that they represented the Daily
News and the Times and the Post in Manhattan,
and they used to be representing the Rockaway
News, which I believe went out of business, and the
Long Island Press; and he said, you know, "I just
wanted to bring you up on it."
I said, "Thank you. I appreciated it."
Basically that was it.
He said, "Please get back to me as soon as you
can with an answer from Barry as well as your
wife"; and the meeting had closed.
Bordash confirms the fact that such a meeting took
place. He states that about 10 days before the meeting he
became aware of rumors that the independents were dis-
contented and organizing and he was concerned about
what their grievances were. He spoke to Lawrence who
told him that Schwartz was a friend of Barry Mark. Bor-
dash does not agree with Schwartz on who was present
at the meeting According to Bordash, Lawrence was
there, but not Muro, Bordash stated that Richie Czark,
Lawrence's assistant, and Drew Kepko,21 were there
According to Bordash,
[A]fter exchanging courtesies and what not, I had
asked George pointedly whether he was a friend of
Barry's, and George at that point says, "no, he was
not a friend of Barry's that he had gone to the
movies on an occasion with Barry."
And I felt at that point George wasn't being open
with me and that sort of terminated our conversa-
tion.
Q. Did you at any time during that meeting ask
Mr Schwartz to go out and find out about com-
plaints of drivers?
A. No, I did not.
Q. Did you ask Mr. Schwartz during that meet-
ing if he had heard of the NMDU?
A. No, I did not.
Q. Did you instruct Mr. Schwartz in any way
during that meeting that he should report to you
anything he learned about Union organizing?
A No, I did not
Q. Did the subject of Mr. Schwartz' wife come
up in any way at all during that meeting?
A No, it did not.
Q. Mr. Bordash, did you meet again with Mr.
Schwartz the next day after this first meeting
you've described?
A. No, I did not.
Q. Did you ever meet again with Mr Schwartz
in your office at Newsday to discuss complaints of
drivers or the Union or anything related to that?
A. No, I did not.
21 Kepko was a single copy sales supervisor at the time of the meeting;
at present, he is a transportation field foreman
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the others alleged to have been present at the meet-
ing, Kepko and Muro were called to testify. After testi-
fying that Muro was not there , Kepko stated:
A. We had walked into the office we sat down
and Vinnie said hello to everybody, you know, a
little how 's it going and what 's new and exciting, I
think we had just come off a bonus drive at that
time, he asked George if he made any bonus money
or whatever and just small talk, you know, and then
he had said that he had heard that there was some
rumblings with the independents and that George
was a friend of Barry's, Barry Mark's, and that
maybe Barry had spoken to him about it and had
told him some things.
And George said that he wasn't a friend of
Barry's that he went to the movies with him once
and a while and that was it
At that point Vinnie dust got up like, "okay,
fine," that was the end of the meeting
Q. Was George Schwartz' wife mentioned at any
point during the course of that meeting?
A No, she was not.
Q During that meeting did Mr. Bordash ever ask
Mr. Schwartz to inquire of other drivers about
grievances?
A No, he did not.
While denying that he had been present at the meeting
discussed above, Muro testified that he attended a sales
meeting in mid-April, along with other circulation sales
supervisors and sales representatives but no independ-
ents, at which meeting Bordash discussed the NMDU.
Subsequent to this meeting around March 20, Bordash
admittedly visited four Newsday depots22 in early April
for the express purpose of speaking to the independents
regarding their involvement with NMDU According to
Bordash, he told the independents that he felt the
NMDU was not the union for them; that NMDU be-
lieved in industrywide seniority, and that that could hurt
the independents at Newsday because employees at other
newspapers with more seniority could "bump" Newsday
personnel; and, that NMDU's president was in prison.
Bordash denied saying that Newsday would go to any
expense to avoid dealing with NMDU, or that Newsday
was violently opposed to NMDU He did not ask any
questions of the independents, nor did he answer any of
their questions. Barry Mark testified that he was present
at the Riverhead meeting and that he heard Bordash
state that NMDU's president was facing a jail term, and
that the independents did not need NMDU representa-
tion because management could take care of them. Mark
then quoted Bordash as saying, "Barry, I hope you know
what you are doing."23 Barbara Schwartz testified that
she attended the Gear Avenue meeting in Lindenhurst
and heard Bordash tell the indpendents that (1) he was
aware that the independents were signing cards for
NMDU; (2) that he-, Bordash, was not against unioniza-
tion but that NMDU was a bad union; (3) that NMDU's
president had been locked up, and that several top offi-
22 Riverhead, Gear Avenue (Lindenhurst), Medford, and Queens
23 Bordash does not recall saying that to Mark
cials were up on charges of embezzlement, and (4) that
in prior dealings with NMDU at Newsday there had
been some violence. Joseph Appel, a wholesaler, testified
that he attended the Lindenhurst meeting and heard Bor-
dash tell the independents that he was aware of their in-
terest in NMDU, that NMDU's president was in jail, and
that Newsday would do all it could to keep NMDU out.
Another wholesaler, Stephen Pulver, confirmed Appel's
testimony, as did Appel's brother Jeff, another wholesal-
er. William Scott Fowlar, a wholesaler, also testified. He
state that he was present at the Lindenhurst meeting and
heard Bordash state that he knew NMDU was attempt-
ing to organize the independents; that NMDU had a his-
tory of corruption and that its president had been con-
victed of extortion; that NMDU is a tough union in-
volved in vandalism, and he did not want the drivers to
get "burned"; and that under NMDU's seniority system,
independents at Newsday could get "bumped" by unem-
ployed NMDU members.
In addition to alleging the above incidents, i e., the
meeting in Bordash's office with George Schwartz and
Bordash's speeches during his visits to the several depots,
as violations of Section 8(a)(1) of the Act, the General
Counsel cites the following incidents as additional 8(a)(1)
conduct.24 Barry Mark testified that in early April he re-
ceived a telephone call from George Schwartz in which
the latter told him that he had been requested by man-
agement to question Mark regarding NMDU's organiz-
ing campaign and what the grievances were that the in-
dependents had against management Mark further testi-
fied that in the middle of May, in the Riverhead office,
Dragon suggested to Mark that he talk to management
to try to work out a settlement to corret the grievances
that existed. Mark also stated that in June he was ap-
proached by Drew Kepko in front of the Riverhead
office who suggested to Mark that he not give the com-
pany any reason to fire him, Mark responded that he
would be careful and the conversation ended.25
Joseph Appel testified that about 3 weeks after Bor-
dash's speech, while Crecenzo was helping him load
newspapers on Appel's truck, Crecenzo told him that "if
the NMDU gets in, all you guys are without jobs."
Appel further stated that while the two of them were
riding Appel's route about 1 week later, Crecenzo
seemed to sympathize with Appel's view that NMDU
might do some good; yet, 2 weeks after that, according
to Appel, Crecenzo ridiculed Appel's position.26
24 Inasmuch as the names of George Schwartz, John Dragon, Mike
Crecenzo , and Mark Fazzio will be used in narration of the incidents, it
should be noted that only Schwartz was alleged to be a supervisor in the
complaint However , the General Counsel amended the complaint at the
hearing to allege that the four named individuals were single copy sales
representatives employed by Newsday, and supervisors within the mean-
ing of Sec 2(11) of the Act Respondent admits their employment status
but denies their supervisory status A discussion of their supervisory
status appears later on in this decision
25 Kepko , an admitted supervisor , denies telling Mark that and states
that he never discussed NMDU with Mark Mark's testimony was shift-
ing and convincing as was his manner in testifying, whereas Kepko im-
pressed me as a frank and honest witness and I credit his dental
26 Crecenzo was not called to testify, nor were Dragon and Fazzio
NEWSDAY, INC
Stephen Pulver testified that on April 6, in the Linden-
hurst parking lot, Crecenzo said to him that if the inde-
pendents voted for NMDU they would lose their jobs
William Scott Fowlar testified that while he was ad-
dressing a group of about 20 independents on NMDU
matters in the Lindenhurst parking lot at the end of
April, Crecenzo, Fazzio, and a third single copy sales
representative (Felton) stood on the fringe of the group
to listen until Fowlar told them to leave Fowlar also re-
lated an incident that took place on April 1 in the same
parking lot. He and his brother George were tying up re-
turns when Crecenzo wandered by and asked if they
knew Barry Mark; when Fowlar and his brother re-
sponded in the negative, Crecenzo volunteered the
remark, "He is a troublemaker and rabblerouser and he
will get in a lot of trouble."27
The General Counsel and NMDU contend that since
Schwartz, Dragon, Crecenzo, and Fazzio are supervisors
of Respondent, all of the incidents related above which
depict acts of interrogation, interference, coercion, or
surveillance by them reflect unlawful conduct on the
part of Respondent. Respondent contends that these indi-
viduals are not supervisors within the meaning of the
Act and therefore cannot bind Respondent by their ac-
tions Of the four named above, only Schwartz testified
at the hearing. He stated that he became a single copy
sales representative in March 1980, and that his duties
"primarily were signing up new dealers, taking care of
problem accounts, doing any collections that were late
due to problems as far as accounts, giving credit when
credit was due; basically that." In addition, Schwartz tes-
tified that he oversaw the independents; he would make
sure they had the correct amount of papers He admitted
that he did not have the authority to hire or fire inde-
pendents, but that on two occasions he recommended the
discharge of independents. On cross-examination, howev-
er, Schwartz admitted that on one of those occasions he
was merely relaying Kepko's instructions, and on the
second occasion, Kepko overruled Schwartz.
Drew Kepko, a single copy sales supervisor and an ad-
mitted supervisor within the meaning of the Act, testified
that he was in charge of five single copy sales represent-
atives in Suffolk county, including George Schwartz.
According to Kepko, Schwartz handled a truck section
which dealt with regular dealers, and Schwartz was in-
volved with their sales, service, and collection, his day
was divided into three parts- one function was to sell
new accounts and establish new outlets; his second func-
tion was collections from dealers who were past due, or
to collect current moneys due from delinquent dealers,
and his third function was to service existing accounts,
i.e., did they need more papers or could the representa-
tive aid them in increasing sales Since Schwartz worked
with truck section 2, he had no direct responsibilities to
the truckdrivers; they dealt directly with the transporta-
tion department. However, on occasion, Schwartz was
assigned to work with an independent section On those
occasions, Schwartz would assist the independents in
loading and unloading bundles from their cars. Acccord-
27 It should be noted that Barry Mark is presently employed by News-
day as a driver and earning more money than he did as an independent
91
ing to Schwartz, when an independent was indisposed he
was supposed to provide a substitute for himself; when
he failed to do so, Schwartz would do the route In addi-
tion, when Schwartz was filling in on an independent
section, he would check the accuracy of the number of
bundles being taken out, and he would see to it that each
independent in the section had his run sheet
C Respondent's Actions Subsequent to July 1, 1981,
and the General Counsel's Allegations Pertaining
Thereto
We come now to the time when Respondent imple-
mented the decision to convert the entire operation to an
early press start of 3 a.m. All departments had been
alerted, all costs had been analyzed, all transfers within
departments had been accomplished, and the plan for re-
routing of drivers in the transportation department to ac-
commodate all dealers, whether by full-time or part-time
drivers, had been completed.28 And so, in late June,
Mannix, Respondent's director of employee relations,
pursuant to instructions from Wright, proceeded to have
discussions with George Tedeschi, president of Local
406, regarding two matters: (1) Mannix sought to get an
agreement which would provide for the consolidation of
the delivery system and which would permit the use of
part-time drivers, since the current contract did not pro-
vide for part-time drivers; and (2) advising Local 406
that Newsday was going to a 3 a.m. start, so that the
pressmen's unit should be made aware. These discussions
resulted in the following agreement, dated July 16, and
signed by Mannix and Tedeschi:
Newsday agrees that the distribution of bulk news-
papers to all dealer accounts and all home delivery
distribution locations shall be within the jurisdiction
of Local 406
It is understood that additional runs for part-time
and/or full-time drivers may be created to deliver
to accounts that require special services, including
supermarkets, vending machine operations, office
building complexes, industrial sites, airports, banks,
municipal buildings, hospitals, seasonal outlets or
other similar special accounts.
Truck drivers shall deliver in bulk to all other
dealer accounts where such special services are not
required and to all home delivery locations.
Part-time drivers shall be paid at the truckdriver's
hourly rate and, if they use their own vehicles, they
shall be paid a car allowance in accordance with
present practices. The normal work week shall con-
sist of five (5) days but not less than two (2) days
per week Work shifts shall be not less than three
(3) hours per day. Overtime shall be paid for any
additional days in excess of five (5) days in one
week and for more than seven (7) hours in any day,
in accordance with the contract The contract pro-
28 See R Exh 63 (memo from Muro and Lawrence to Hirsch and
Bordash, dated June 23, 1981)
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visions for holidays and other benefits applicable to
part-time employment will apply
Mannix further testified that he met with Bordash, also
in June 1981, to discuss with him the preparation of a
letter to the independents advising them that Newsday
was going to an all-employee delivery system, and giving
them the opportunity to become employees by going
through interviews where jobs were available.29 On July
17, the following letter issued over Bordash's signature
and was distributed to the independents:
As you probably know, Newsday has been test-
ing the possibility of early morning delivery to
single copy outlets since February. That test has
produced substantially higher sales, and Newsday is
going ahead with early delivery throughout Nassau,
Suffolk and Queens.
This early delivery will begin Monday, July 27,
when we start our presses two hours earlier. The
most efficient and effective manner to deliver these
newspaper on an early basis will be with our em-
ployee driver work force. Therefore, the services of
independent carters will no longer be required after
Sunday, July 26, and the services of independent
wholesalers will no longer be required after
Sunday, August 2.
However, in consideration of your service to
Newsday, we would like to give you the opportuni-
ty to apply for the employee positions that will be
added to the staff as a result of this change in our
operation The positions that will be open starting
Monday, July 27, will be full-time driver, full-time
truck helper, part-time driver and part-time helper
Enclosed is an application for employment with
Newsday, a supplementary application geared to
those specific jobs and a sheet describing the appli-
cation procedures. A Newsday representative is
ready right now to make an appointment for you
for a job interview Interviews are being scheduled
for Monday, July 20, and Tuesday, July 21 We will
begin to fill these positions later in the week.
If for any reason you do not become an employ-
ee, you will receive a special payment based on the
length of time that you have been delivering News-
day This will amount to $200 if you have been an
independent deliverer for less than one full year,
$400 if you have been delivering between one and
three years, and $600 if you have been delivering
for more than three years. This payment will be
contingent upon fulfillment of your responsibilities
through Sunday, July 26, if you are a carter, and
Sunday, August 2, if you are a wholesaler.
We hope that you will take this opportunity to
apply for employment with Newsday.
Pursuant to this letter, applications were received from
the overwhelming majority of independents, the applica-
tions were reviewed by the employee relations depart-
29 Until the Regional Director issued his decision in Case 20-RC-5387
on July 22, Respondent had always contended that the independent driv-
ers were independent contractors, not employees of Newsday
ment , and interviews were arranged and conducted
during the week of July 20 by the employee relations de-
partment and the transportation department.30 The full-
time positions were filled first and then the part-time po-
sitions. At the conclusion of the interviews approximate-
ly 67 driver positions were filled by independents, and 25
other full-time driver positions were filled by full-time
and part-time helpers that worked in the transportation
department. Some of the independents did not seek em-
ployment, and others who were acceptable refused the
type of position offered them because of distance prob-
lems or time problems. Respondent contends that only
three independents were refused employment by News-
day: Jeffrey Appel, Joseph Appel, and William Richards.
And these, plus Stephen Pulver, are the subject of fur-
ther discussion, infra. On July 26, Newsday terminated
the independent carters, on July 27, Newsday moved its
press time from 5 to 3 a.m. and fully implemented the
new program; on August 2, the last of the independent
wholesalers were terminated.
The General Counsel contends that Newsday engaged
in the above-described conduct in order to eliminate the
unit of independents, so as to avoid the possibility of
being required to recognize and bargain with NMDU as
the unit's representative, should NMDU be successful in
any forthcoming election. Also, the General Counsel
contends that the termination and later hiring of the in-
dependents resulted in their being assigned more onerous
or less desirable routes than they had previously, and
subjected them to less earnings as well. And, finally, the
General Counsel contends that the two Appels, Rich-
ards, and Pulver were not offered employment because
they participated in the representation hearing in Case
29-RC-5387.3 i These actions of Newsday, the General
Counsel contends, were violative of Section 8(a)(1), (3),
and (4) of the Act
The one remaining factual variation involves the four
employees alleged by the General Counsel to have been
denied reemployment as drivers. Jeffrey Appel testified
that he worked for Newsday as an independent whole-
saler from September 1979 until his services were no
longer required as stated in Bordash's letter supra. While
so employed, he attended an NMDU meeting on March
27, and was present on April 3, at a meeting addresed by
Bordash. He also attended, but did not testify at, three
sessions of the representation proceeding before the
NLRB in May and June.32 Appel stated that he imprint-
ed, on T-shirts and bumper stickers, the phrase, "God
bless the NMDU and Artie too," and, along with his
brother Joseph and other independents, distributed them
30 Approximately 86 independents were interviewed for approximately
90 jobs, these jobs consisted of full-time driver positions, 5 days a week,
and 5-day and 2-day part-time driver positions Also invited to apply
were other Newsday employees, including full-time and part-time helpers
in the transportation department Management provided vehicles for full-
time dnvers, whereas part-time dnvers used their own vehicles
31 Respondent admits not offering employment to the two Appels and
Richards, but claims it offered employment to Pulver
32 Eugene Mighomco, an independent carter, was called as a witness
by the General Counsel, and testified that he, too, attended the NLRB
representation hearings along with about 10-15 other drivers.
NEWSDAY, INC
to the drivers 33 When Appel was notified that he was
to be terminated pursuant to Bordash's letter, he filed an
employment application with Newsday and was inter-
viewed by Barbara Sanchez, Respondent's employment
manager On direct examination, the entire extent of
Appel's testimony regarding the interview was that San-
chez asked him what type of vehicle he drove, whether
he had a geographic preference, whether he wanted
weekday or weekend work, and how much money was
made by part-timers. On cross-examination, Appel admit-
ted that he only indicated on the application that he
wanted part-time employment, but that Sanchez told him
that he did not have to limit himself. In fact, on redirect
examination, he admitted that Sanchez raised the issue of
part-time work and told him, "there is full and part-time
available," and she changed it accordingly And, on
cross-examination, Respondent elicited the fact that
Appel had several moving traffic violations on his li-
cense, and introduced Appel's employment application
into evidence (R. Exh 4) on which he listed the viola-
tions, Sanchez stated that when she reviewed Appel's ap-
plication she noted that in addition to his having had
several driving violations, that he had worked previously
for Newsday for less than a month back in 1976. Sanchez
continued as follows.
I was particularly interested in why he left after
two or three weeks and confirmed the reasons for
his leaving.
He did tell me he resigned, and I could ask Pete
Marcau about this, and he said that one of the rea-
sons was poor salary and commissions, and we had
further discussion about it.
It was really unclear in my mind, since he knew
pretty much what the salary commissions were
before he took the job, or at least I assumed he did,
what the reasons were; and he further explained he
didn't like delivering to Roosevelt.
I said to him, "What do you mean, Roosevelt?"
He said, "Well, I don't want to deliver to a town
like that or to a neighborhood like that "
I said, "What do you mean, a neighborhood like
that?"
He said, "A nigger neighborhood like that."34
Joseph Appel's testimony was straightforward. He
stated that he began working for Newsday in the
summer of 1975 as a wholesaler For a brief period in
1977 he became a district manager, but went back to
being a wholesaler in 1978 He attended the NMDU
meeting on March 27, and was present on April 3 when
Bordash addressed the independents in Lindenhurst. Al-
though he was not called to testify, he did attend about a
half a dozen sessions of the NLRB representation hear-
ing He aided his brother, Jeff, in distributing T-shirts
and bumper stickers, and he wore a T-shirt to work and
attached a bumper sticker to his car. At his reemploy-
ment interview, he stated a preference for full-time
weekday work On cross-examination, Appel was shown
33 Appel stated that he wore the T-shirt to work and put the bumper
sticker on his car
3 4 Appel vehemently denied this accusation
93
his employment application (R. Exh. 3), in which he
listed two traffic violations, one for speeding in March
1980, and one for tailgating in March 1981 The latter
violation had been plea-bargained down from a speeding
violation. Also on cross-examination, Appel acknowl-
edged that during the interview he expressed a prefer-
ence not to work in Roosevelt or other black areas. In
his words, "It was not my idea of fun."
William Richards was an independent carter since No-
vember 1978. Beginning in March, he attended six or
seven NMDU meetings, and was present at one session
of the NLRB representation proceeding, but did not tes-
tify. As a carter, Richards took his run out 7 days a
week. However, on July 18, his truck broke down while
he was doing his route and he called into the terminal
for assistance, a single copy sales representative was dis-
patched and helped Richards finish the route. The next
day, Richards' truck was being repaired so the same rep-
resentative picked Richards up at his home and they did
the route together. On July 20, Richards reported to the
terminal without his truck and was told he could not
work. At this point, having received the Bordash letter,
Richards filled out the application for reemployment and
was interviewed by Sanchez who told him that he was
not entitled to the severance pay referred to in Bordash's
letter because he no longer was employed by Newsday
However, that same day management relented and told
him that if he could get a vehicle and make his run for
the week, starting Tuesday, July 21, he would be eligible
for the severance pay. This he did and he received the
severance pay.
Stephen Pulver has been a wholesaler for Respondent
since July 1973 As stated above, Pulver attended the
April 3 company meeting at which Bordash spoke and
his testimony confirms what Bordash admittedly said. On
April 16 Pulver signed an NMDU authorization card at
an NMDU meeting, and subsequent to that wore one of
Appel's T-shirts regularly to work. He states that he
went to several depots speaking out in favor of NMDU
and urging the drivers to come to the hearings. He at-
tended two NLRB representation hearings, and states
that at one time or another as many as 40 independent
drivers from all of the depots were present He also
states that three of the drivers testified and that all three
are presently working for Newsday. After receiving the
Bordash letter on July 20, Pulver filed his application for
reemployment and was interviewed by Gibson and Ray-
mond, both of whom told Pulver that only 5-day and 2-
day part-time jobs were available, and that he would be
contacted in a few days Pulver admits contacting News-
day's employment office on August 3, and being told
that there were still weekend jobs available, but he never
contacted the office after that.
Sanchez testified that she called Pulver's home on
August 5, and spoke with Stephen's brother William.35
She told William that she was looking for Steve and that
it was important that Steve contact her; she left her
name and number but Steve did not call back. Sanchez
as William Pulver had also been a wholesaler for Newsday He also
had applied for reemployment, and was given a job by Newsday The
two Pulvers lived together and had the same phone number
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called again on August 7, and again spoke to William.
She said, "I'm still looking for Steve." William respond-
ed, "I didn't give the message to Steve He's not home."
According to Sanchez, William said that Stephen had
gone away and that he was unavailable for work. How-
ever, Sanchez states that she said, "If you hear from him,
have him call me." By Stephen Pulver's own admission,
supra, he did not contact the employment office after
August 3, and William was not called to testify
Analysis and Conclusions
The primary issue involved in the instant case and the
issue of most concern to the Charging Party is whether
the consolidation of Newsday's delivery operation violat-
ed the Act. The General Counsel contends that the reor-
ganization of the transportation department was an at-
tempt to thwart the efforts of NMDU to organize and
represent the independent drivers. Respondent contends
that long before NMDU appeared on the scene it had
begun a study as to the feasibility of expanding its single
copy dealer sales program by going to an earlier press
time, and of combining its delivery operation to make for
more efficiency and to satisfy the desires of Local 406.
The uncontroverted evidence establishes that such a
study had its beginnings in the summer of 1980, and pro-
gressed throughout the fall and winter into 1981; and, as
the months passed, refinements in the plans were institut-
ed and results were reported by all departments involved
right up to the time of the commencement of the pilot
program on February 23, 1981. While the General Coun-
sel's evidence shows some slight employee interest in the
NMDU in January and February, its own witnesses state
that NMDU's first meeting with the independents did
not take place until March 20, 1981, long after Respond-
ent's study got underway, and almost a month after the
commencement of the pilot program. And so, with abso-
lutely no evidence to show knowledge on the part of Re-
spondent of the very existence of NMDU prior to Feb-
ruary 23, the General Counsel must concede that Re-
spondent's motives in studying a change in its operation
were not grounded in an antiunion attitude. In fact, I
find that, at least up until March 20, 1981, Respondent's
motive was prompted solely by economic and efficiency
reasons. And, by applying the same reasoning , I find that
the employment of Local 406 drivers in the pilot pro-
gram commencing on February 23 was not prompted by
any anti-NMDU posture, since it had no knowledge of
NMDU's presence, but rather was done for two reasons:
It sought more efficiency in a consolidated delivery
system by implementing the program with the proper
personnel in place, and it sought to blunt Local 406's
complaints regarding its claims to all the work in the
transportation department.
And so, we see that the General Counsel 's case actual-
ly starts around March 20, 1981. It is at this point, ac-
cording to the General Counsel, that Respondent, now
aware of NMDU's presence, embarks on a campaign to
vilify NMDU, and to coerce, restrain, and interfere with
its employees' Section 7 rights. The General Counsel al-
leges that Respondent sought to use a supervisor,
George Schwartz, to accomplish its purpose. However,
lined above, I conclude that neither Schwartz, nor any
of the other single copy sales representatives, is a super-
visor within the meaning of Section 2(11) of the Act.
Schwartz does not have the authority to hire or fire em-
ployees, nor can he effectively recommend such actions.
In addition, he does not responsibly direct employees; his
duties are directed primarily to sales to vendors, and his
only contact with drivers is to aid them in getting their
deliveries out on time, not to supervise them. And so,
the allegations which rely on the conclusion that
Schwartz and other single copy sales represenatives are
supervisors of Respondent must fall. Accordingly, all al-
legations relating to acts committed by Schwartz,
Dragon, Crecenzo, and Fazzio shall be dismissed.
However, if in fact Schwartz is not a supervisor, as I
have found, then he is an employee of Respondent enti-
tled to the protection of Section 7 of the Act, and the
allegations relating to Bordash's interrogation of
Schwartz regarding NMDU must be reckoned with. For
while an employer can compel employees to come for-
ward with information during an investigation of miscon-
duct ,36 it cannot compel employees to give information
regarding protected activities. Accordingly, consider-
ation must be given to the evidence surrounding the Bor-
dash-Schwartz meeting to determine whether an employ-
ee's rights have been violated even though not so alleged
in the complaint. Schwartz stated that he had been called
into Bordash's office and that Bordash in the presence of
Muro and Lawrence told him that he had heard talk
about grievances among the independents and that since
Schwartz was a friend of Barry Mark would he please
speak to Mark and to Schwartz' wife to find out what
the grievances were. Also, there was discussion about
Schwartz' wife's job as a wholesaler, and whether
Schwartz had heard of the NMDU Schwartz denied
being a friend of Mark and denied knowledge of
NMDU. Aside from disagreeing on who was present at
the meeting, Bordash did state that he was concerned
about rumors he was hearing regarding grievances and
did ask Schwartz if he was a friend of Mark's, but, when
Schwartz denied the friendship, Bordash saw no point in
continuing the conversation and terminated it. This testi-
mony is confirmed by Kepko. I credit Bordash and
Kepko. While it is clear that Bordash attempted to gain
some knowledge of the independents' grievances from
the Schwartz-Mark friendship, if it existed, Schwartz'
negative response to that question left nothing further to
discuss. It certainly appears unlikely to me that manage-
ment , upon getting such a rebuff, would seek to gain in-
formation from the husband of an independent driver re-
garding the driver's grievances towards management.
And so, I must draw the conclusion that Schwartz, an
admitted cohort of NMDU, expanded on the contents of
the meeting beyond its true confines. Under the circum-
stances, I do not find that Schwartz' Section 7 rights, as
an employee, have been violated.
The General Counsel further contends that on various
dates after March 20, Respondent, through Bordash, ac-
tively engaged in a campaign of interrogation and coer-
from the evidence presented at the hearing and as out- 36 See St Louis Health Center, 248 NLRB 1078
NEWSDAY, INC
cion by going from depot to depot lecturing the inde-
pendents on the faults and dangers of NMDU From the
evidence presented above regarding these meetings, I
find a general agreement exists as to what was said by
Bordash , and I find none of it violative of the Act 37
Bordash impressed me as being a truthful witness and I
credit his version of the meetings . He told the independ-
ents that NMDU was no good for them and that its
president was corrupt No witness was produced by
either the General Counsel or NMDU to refute Bor-
dash 's statements . Accordingly , I find these statements
not only to be expressions of opinion by Bordash and in
this context to be protected by the free speech provisions
of Section 8(c) of the Act,38 but in the absence of evi-
dence to the contrary , truthful as well . And so, I shall
dismiss the allegations relating thereto
Having previously found that Respondent 's actions
prior to March 20 regarding its plan to change to an ear-
lier press time and to consolidate its delivery system was
for economic and efficiency purposes , I am now con-
fronted with the General Counsel's allegation that the
actions engaged to by Respondent about July 20 in
which it notified the independents that it was discontinu-
ing their operation was to eliminate the separate bargain-
ing unit in order to avoid the possibility of being re-
quired to recognize and bargain collectively with the
NMDU . At this point in time, Respondent can no longer
claim that it did not have knowledge of NMDU 's organi-
zational effort, for NMDU had filed its petition on April
22, a hearing had been held in Region 29, and a Regional
Director 's decision was awaited by the parties con-
cerned. However , Respondent contends that the imple-
mentation of its plan in and about July 20 was merely a
culmination of all its efforts in that direction which saw
its beginnings long before NMDU 's organizing efforts
began , and that the timing of the change was based
solely on business factors wholly unrelated to NMDU's
campaign . While I agree that the events as depicted by
the General Counsel raise suspicions about the lawfulness
of Respondent 's conduct , I believe that the evidence pre-
sented by the General Counsel fails to prove that Re-
spondent acted unlawfully . To the contrary , I find that
Respondent 's change in operations was not motivated by
discriminatory reasons, but rather by the economic ex-
igencies of the situation . The uncontroverted evidence
presented by Respondent showed , beyond a doubt, a
compelling economic reason for Respondent to take the
action it did, albeit the timing and the secrecy may have
tinged the move, in the eyes of the NMDU , with a possi-
ble discriminatory motivation Nevertheless , it is my firm
belief that no such discriminatory motive existed. The
evidence clearly established that Respondent contemplat-
ed the elimination of the independent driver operation at
least for several months prior to NMDU 's organizational
37 The only disagreement involved the question of whether Bordash
said that Newsday would go to any expense to avoid dealing with
NMDU Of the six witnesses called by the General Counsel on the issue,
three (Joseph Appel , Stephen Pulver , and Jeff Appel ) attribute said
remark to Bordash , whereas in addition to Bordash's denial , Barbara
Schwartz , Barry Mark , and William Scott Fowlar do not quote Bordash
as having said it
38 See Pennysaver & Ampress, 206 NLRB 497 (1973)
95
effort, and instituted the pilot program with Local 406
drivers, also before the advent of NMDU on the scene.
The success of the pilot program convinced Newsday
that a change had to be made . No longer was there to be
a dual delivery system with its unnecessary double deliv-
ery to depots ; uniformity in its collection and returns
procedure would now be achieved ; greater efficiency in
deliveries would be accomplished , and, above all else,
the bottom line on the balance sheet would reflect a
greater economic return to Newsday. For these reasons,
I am convinced that Newday's action in terminating the
independent driver operation was not motivated by un-
lawful considerations , but was grounded in solid business
acumen . Accordingly, I shall dismiss the allegation
which contends that the elimination of the independent
drivers unit was discriminatorily motivated.
Concomitantly with this ruling , a ruling regarding the
challenged ballots is required . As stated above, pursuant
to the Regional Director 's decision in Case 29-RC-5387,
issued on July 22, which determined that the independ-
ent drivers were employees of Newsday and constituted
a separate appropriate unit, an election was conducted on
August 20 at which Newsday challenged all of the em-
ployees on the list contending that they were not in the
unit ; the ballots were impounded and, in a supplemental
decision , the Regional Director consolidated the repre-
sentation proceeding with the unfair labor practice pro-
ceeding inasmuch as a resolution of the discriminatory
discharge issued would also resolve the challenge status
of the independent drivers. Thus, since I have found that
no discriminatory motivation prompted the dissolution of
the independent driver unit and, in fact , such a unit of
employees no longer exists, it follows that whatever
voting rights the terminated employees may once have
had, have been extinguished and the challenge to their
ballots is sustained . Belatedly, NMDU 's counsel at the
close of the hearing herein put forth the argument that
since an overwhelming majority of the independents had
been rehired , a separate , discernible unit of independents
still existed and that their ballots should be counted to
determine who their collective -bargaining representative
should be, if any. I do not agree with that view . The evi-
dence is quite clear that the rehired employees have been
integrated into one overall delivery system; all are sub-
ject to the same supervision; all perform the same work
subject to the same wage scale ; all work pursuant to the
Local 406 contract which sets forth the hours and work-
ing conditions ; routes have been changed to accommo-
date both drivers and management; and no longer are de-
liveries to single copy sales dealers limited to the former
independent drivers, but are also performed by Local
406 drivers . Under the circumstances , I do not find a
separate unit of independents in existence which would
warrant the counting of their ballots.
One further contention of wrongdoing is alleged by
the General Counsel concerning four former independent
drivers39 who allegedly were not rehired by Respondent
because of their union activity on behalf of NMDU in
violation of Section 8(a)(3), or because , as alleged in
39 Joseph Appel, Jeff Appel, Stephen Pulver, and William Richards
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraph 21 of the complaint, they filed charges and
gave testimony under the Act, in violation of Section
8(a)(4) of the Act As to the latter, the record is com-
pletely void of any evidence to show that any of the
named four did either, i.e, file charges or testify. The
General Counsel did establish that all four attended ses-
sions of the representation hearing, but so did any
number of employees. On that basis, the 8(a)(4) allega-
tion shall be dismissed.
With regard to the 8(a)(3) allegations, I do not find
that the facts as depicted above, and as discussed below,
establish any, discriminatory reason for the Respondent's
failure to rehire the two Appels and Richards As to
Pulver, I am convinced that Sanchez called his home
twice, and that either his brother William did not give
him the messages or Stephen chose to ignore them San-
chez impressed me as a straightforward witness with no
apparent reason to lie; and the General Counsel chose
not to call William Pulver to rebut Sanchez' testimony.
Accordingly, I credit Sanchez and I find that Respond-
ent did attempt to offer Stephen Pulver employment, but
that for one reason or another Pulver declined it.
The only testimony elicited by the General Counsel
from the Appel brothers, other than that referred to
above in my discussion of the 8(a)(4) allegation, that
could possibly show that they supported NMDU, as al-
leged, is the fact that both wore the T-shirts to work
that were designed by Jeff and both distributed them to
other independent drivers. Thus, it can be inferred that
Respondent had knowledge of their support for NMDU,
but by the same token the Respondent had knowledge of
many other independent drivers, who were subsequently
rehired, who also wore the T-shirts and attended the
NLRB representation proceeding. With no more than
that to go on, I am constrained to agree with the Gener-
al Counsel that Respondent was discriminatorily motivat-
ed in refusing to rehire the Appel brothers. I draw this
conclusion again from the testimony of Sanchez, who
credibly testified that the traffic infractions committed by
the Appels, and admitted by them, was a deterring factor
in rehiring them. This, coupled with her testimony re-
garding their racial attitude, which I also credit despite
Jeffrey Appel's denial of the quoted racial slur, forms the
basis for my belief that Respondent gave little or no
thought to their miniscule union activity in determining
not to rehire them. As the Board stated in Wright Line,
251 NLRB 1083, 1089 (1990):
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Even assuming that the General Counsel has made such
a prima facie showing in the instant case, I believe that
the Respondent has more than amply demonstrated that
its paramount concern was the attitudes and abilities of
its employees, and that in light of what the job inter-
views revealed about the Appel brothers, the refusal to
rehire would have occtrred even in the absence of the
protected conduct. I conclude, therefore, that Respond-
ent has not violated the Act by refusing to rehire Jeffrey
and Joseph Appel.
The evidence presented by the General Counsel on
behalf of William Richards to show discriminatory moti-
vation by Respondent in refusing to rehire Richards is so
woefully lacking in content as to have me conclude that
no violation of the Act occurred. It is unrebutted that
Richards attended several sessions of the representation
proceeding but did not testify; that is the sole piece of
evidence that the General Counsel offers and from it ex-
pects me to infer that Respondent thereby knew of Rich-
ards' NMDU leanings and sought'to punish him for it by
refusing to rehire him. The fact that many other inde-
pendents also attended those sessions and were later re-
hired as drivers does not seem to phase the General
Counsel. It is true, and the cases are legion, that if the
General Counsel can show disparate treatment on the
part of the Respondent, unlawful action can be estab-
lished. But why Richards? Respondent contends that
Richards was not rehired because he was not dependa-
ble; he was having troubles with his truck and Respond-
ent felt it could not rely on him. Whatever the reason, it
is not incumbent on Respondent to disprove an ethereal
allegation unless and until the General Counsel has pre-
sented some suitable evidence to establish disparate or
discriminatory treatment. This, I believe, the General
Counsel has failed to do; he has not, in my mind, met his
burden of establishing a prima facie case with regard to
Richards. On that basis, I shall dismiss that allegation in
the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Newspaper and Mail Deliverers Union of New
York and Vicinity, and Local 406, International Printing
and Graphic Communications Union, AFL-CIO are
labor organizations within the meaning of Section 2(5) of
the Act.
3. The allegations of the complaint that the Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (4) of the Act have
not been supported by the evidence
4. The unit of employees designated by the Regional
Director, in conection with the representation election
held on August 20, 1981, as being appropriate for pur-
poses of collective bargaining, ceased to exist prior to
the election day, and the persons so designated were no
longer in the unit on August 20, 1981
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed40
40 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
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 pur-
poses
NEWSDAY, INC 97
ORDER
The complaint is dismissed in its entirety.
IT IS FURTHER ORDERED that the challenges to the bal-
lots cast at the representation election held among Re-
spondent's employees on August 20, 1981, are sustained.