Quebecor Group, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 961 (N.L.R.B. 1981)

QUEHECOR GROUP. INC
Quebecor Group, Inc. Philadelphia Journal Division
and The Newspaper Guild of Greater Philadel-
phia, Local 10, AFL-CIO, CLC. Cases 4-CA-
10821, 4-CA-11119, 4-CA-11342, and 4-CA-
11354
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZI M N ERMAN
On March 12, 1981, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief. On
August 12, 1981, the General Counsel filed a sup-
plemental supporting brief and on September 11,
1981, the Respondent filed a supplemental answer-
ing brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
The Respondent has excepted to certain credibility findings made bh
the Administrative Law Judge. It is the Board's established polie not to
overrule an administra!ive las: judge's resolutions with respect to credi-
bility unless the clear prepolnderance of all of the relesxant evidence con-
vinces us that the resolutions ire inlcorrect Standard Drr Wall Producl.
hi:., 91 NLRB 544 (1950). efd. 18 F.2d 362 (3d Cir 1951). We hase
carefully examined the record and find to basis for reversing his finditgs
We also find no merit in the Respondet's allegationts of bias aid par-
tiality on the part of the Adninistratfse lass Judge aid unethical. unfair.
and had-failh conduct oti the part of the General Counsel.
As part of our examination of the entire record as to the Respotndent's
allegations of misconduct on the part of coulnsel for the General Counsel.
we have considered the issues raised in the supplemental briefs relating to
the Respondent's initiation of disciplinary proceedings against counsel for
the General Counsel before the Disciplinary Board of the Supreme Court
of Pennsylvania, and the Disciplinary rBoards siubsequet dismissaLl of the
matter. Although not bound by the administrative determination of the
Disciplinary Board, we specifically find no merit i anty f the Respond-
ent's allegations of impropriety against counsel for the General Counsel
As to the Respondent's contention that it was prejudicial error for the
Administrative Las. Judge to deny its request for a colltinuance in order
that it could call firmer employee Perry Frank as a svitless, and unfair
for the General Counsel to oppose its request, we cotnclude that it was
not an abuse of discretion to deny the Respondent's request. The record
countains clear evidence shos.ing that the Respondent was on notice that
Frank would he a necessary witness. in that Frank swas named in the
complaint. duly served o the Responldent 13 dos prior to the opening
of the hearing. as a supervisor svsho allegedly committed an unfair labor
practice The Respondent has made no shoss ing that Fraik's whereabouts
were unknown or that Frank was olherw,'ise unaailahle to testify at the
hearing
The Administrative l.au Judge fund that employee David Harris
Shlifer was I of 10 finalists in the 1977 Pulitzer Prize competition i the
field of investigatie reporting. The Respondent attached to its brief ii
support (of its exceptiuon documents, not submitted into eidence at the
hearing, purporting to he letters and lists, dated April 7 and 13. 1981.
from the Pulitzer Prize board indicating that Shlifer %sas not a fitialit ill
the 1977 competition We note that the record clea rl shos that the Re-
258 NLRB No. 125
Judge and to adopt his recommended Order,2 as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Quebecor Group, Inc. Philadelphia Journal Divi-
sion, Philadelphia, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 2(a):
spondent as aare of Shlifer' claim to he a 'ulitzer l)rie nlrillnce
prior to hiring him. the Respondenit presents no evidence that the docu-
meits it tios . seeks to introduce were unavailable during the hearing or
prior to the issuance of the Administratise Lass Judge's Decision. and
the Respondenl failed to cross-examine Shlifer on this issue at the hear-
ing Further. under the pros\ ons of Sec. 102.45(h) of the Board's Rules
and Regulations, Series 8. as amended the post-hearing evidence prof-
fered bh the Respondent is not a part of the record and cannot be con,til-
ered in resolving this matter. We. therefore, as a matter of due process.
cannot consider the Respotndent's exhibits to its exceptions and brief in
res\ ie\ting the Administrative Law Judge's Decision
In its brief the Respondent, for the first time, raises the issue that he
Board lacks jurisdiction oer Donald eventlhal. alleging that le xell hal
stas not an enmployee. but a independent contractor while morkillg for
the Responldent in his capacity as a sports handicapping columnist kno.n tr
as "Diamond Doti." We lote that the Respondent presiousl. failed to
raise this issue in its anssver to the complaint. during the hearing. or in its
post-hearing brief to the Administrative I.av Judge The Respolndenl
offers no explanation for its pronounced departure from Board practice
and procedure and its failure to assert its defense at the proper stagc of
the proceeding. Further. the defense raised h) the Respondent ins role
e.idenlce which wa;s neither ntesly\ discovered nolr unavailable at the tniie
if the hearinig Moreoser. we find that e\en if ue were to corsider the
Respondet's argument ve ould nol upset the result reached hb the
Adminisiratise La\u Judge. The record demonstrates that Leventhal pos-
sessed many indicia of employee status which are wholly iliconistclt
with a finding of independent contractor status. Leventhal received com-
pensalion on a regular basis, was frequently present at the nesspa;per
office and used its facilities. and contributed to the paper o a regular
basis. The Respondent Managing Editor Walter Herring and Controller
Anthoni Tierno testified at the hearing that, in addition to receislitig a
weekly salary of $150. ILeventhal also received fringe beliefits. Such par-
ticipation i the Respondent's fringe benefit package is a significalt faithr
distinguishing aln employee from an independent contractor. Accordingll.
ve specificall5 adopt the Administrati.e aw Judge's findings itlh re-
spect to Donald I.eventhal.
We herein correct three ina;dvertent errors, of the Administrati I ,
Judge First, with respect to the testimony of Managing Editor lerrillg.
the Adminristralise Las Judge ilncorrectl stated in his Deciiron that
Herring denied ever complimenting Herring on his sork the refrclL
should he to employee Terrance Brennian Secolnd. as to a Juls 25. ISi.
statement hy Perry Frank. former night news editor, the Admlinii Iltli
Law Judge meant to sa5 that Frank told Brennan. and inot that Iralnk
told Frank that he (Brennanl) was a good reporter. Third. ih respLe I to
the date appearitug oln the Respondent's formal notice to Shlifer of it de-
cision ot to rehire him. the Administratise law Judge icorrccl stiatld
that the date as July 24. rather than Ja;nuar 24. 198XI These ina;ldcr-
entl errors do nolt affect the conclusions reached herein
In aiccordatce with his partial dissenlt in Olvnpic .edical (C'lrporiiii.
25() NI.R 14I (1980). Menmber Jenkints ,ould awalrd itterest o1i the
backpa de baseh;cd on the formula set forth therein
' We have modified the Administrative La;s% Judge's reconinlided
Order o include the full relstatellent language rad ioallI pros idedl hb
tile Board We also modifN the proposed nolice to coiform i lth the pro-
sioins of Ithe recon mlended Order
6l1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) "Offer David Harris Shlifer, Donald Le-
venthal, and Terrance Brennan immediate and full
reinstatement to their former jobs as general assign-
ment reporters and, in the case of Leventhal, sports
handicapper or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges pre-
viously enjoyed, discharging, if necessary, employ-
ees hired in their places and terminating any and all
agreements which interfere with the reinstatement
of the said employees in those positions; and make
each of them whole for any loss of pay they may
have suffered by virtue of the Respondent's dis-
crimination against them. Backpay shall be comput-
ed in the manner set forth in the section entitled
'The Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILl NOT coercively interrogate our
employees nor will we threaten them with dis-
charge or with closing of our newspaper be-
cause of their membership in, sympathies for,
or activities on behalf of The Newspaper
Guild of Greater Philadelphia, Local 10,
AFL-CIO, CLC, herein called the Guild.
WE WILL NOT discharge or fail to hire or
rehire or otherwise discriminate against any of
our employees, thereby discouraging member-
ship in the Guild or any other labor organiza-
tion, because of their sympathies in, activities
on behalf of, or membership in the Guild or
any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL offer David Harris Shlifer, Ter-
rance Brennan, and Donald Leventhal immedi-
ate and full reinstatement to their former jobs
as general assignment reporters, and, in the
case of Leventhal, sports handicapper or, if
those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previ-
ously enjoyed, discharging, if necessary, em-
ployees hired in their places and terminating
any and all agreements which interfere with
the reinstatement of the said employees in
those positions; and WE WILL make them
whole for any loss of pay they may have suf-
fered by reason of our discrimination against
them, with interest thereon.
QUEBECOR GROUP INC. PHILADEL-
PHIA JOURNAL DIVISION
DECISION
STATEMENT 01: THE CASE
ROBERT W. LEINER, Administrative Law Judge: With
all parties represented by counsel, this consolidated pro-
ceeding was heard in Philadelphia, Pennsylvania, on Oc-
tober 27-29, 1980, upon consolidated amended com-
plaints of July 31 and October 10, 1980, as further
amended at the hearing, filed by the General Counsel of
the National Labor Relations Board, and responsive an-
swers duly filed by Quebecor Group, Inc. Philadelphia
Journal Division, herein called Respondent.
At issue are allegations that Respondent unlawfully
failed to rehire or terminated three employees, David
Harris Shlifer, Don Leventhal, and Terrance Brennan,all
in violation of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended. In addition, the com-
plaint alleges as violations of Section 8(a)(l) of the Act
various threats of discharge of employees because of
union activities, unlawful surveillance, and unlawful co-
ercive interrogation. Subsequent to receipt of the evi-
dence, the parties waived oral argument and submitted
post-hearing briefs, all of which have been considered.
Upon the entire record in this proceeding, including
the briefs, and particularly my observation of the demea-
nor of the witnesses as they testified, I hereby make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent admits, and I find
that Respondent, a Canadian corporation, engages in the
business of publishing daily newspapers, including one in
Philadelphia known as the Philadelphia Journal, with a
place of business at 3010 Market Street, Philadelphia,
Pennsylvania. During the year preceding October 10,
1980, Respondent admits that, in its regular operations of
the Journal, it derived gross revenues in excess of
$200,000 and also purchased and received goods valued
in excess of $50,000 shipped directly from points outside
the Commonwealth of Pennsylvania. Respondent admits,
and I find, that it is an employer engaged in commerce
The docket entries demonstrate a number of severances. consolida-
lions. and withdrawals. It is sufficient for purposes of this consolidated
proceeding however, to note that the charge in the above-captioned
Case 4-CA-10821 was filed and served on the parties on January 29.
1980. by the Newspaper Guild of Greater Philadelphia. Local 10. AFL-
CIO-CLC. herein called the Union or the Guild. with an amended
charge filed and served on February 29. 1980 The charge i Case 4-CA-
11119 was filed on June 2. 1980, and served on June 3. 1980 The charge
in Case 4-CA-1 1342 was filed on August 18. 1980. and served on August
19. 1980. The charge in Case 4-CA-11354 was filed on August 22. 198()0.
and served on August 25. 1980
QUEBECOR GROUIP. INC
within the meaning of Section 2(2). (6). and (7) of the
Act.
1. Hi. I ABOR ORGANIZAllION INVOI VII)
The consolidated complaints allege, it is admitted. and
I find that the Newspaper Guild of Greater Philadelphia,
Local 10, AFL-CIO-CLC. herein called the Guild or
the Union, and Philadelphia Newspaper and Magazine
Chauffeurs and Handlers Local Union 628. a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Teamsters, and each of them, is a labor organization
within the meaning of Section 2(5) of the Act.
Iit. HFI A I. I Gi) UNFAIR ABOR PRACTICES
A. Background
The Philadelphia Journal, a 6-day tabloid, is a subsidi-
ary of Quebecor Group, Inc. Prior to January 26, 1980,
it employed about 43 full-time and 7 part-time editorial
employees. With a 1980 circulation of about 120,000, the
newspaper (whose first day of publication was December
5, 1977) was a consistently losing economic proposition.
Losses in the period of October 1, 1978, through Septem-
ber 30, 1979, allegedly exceeded $4 million: losses i the
fiscal year October 1, 1979, through September 30, 1980,
were also allegedly about $4 million. Commencing with
the expiration of the first year of operations, management
sought either to cut the costs of its operation or at least
not to increase them.
The Journal's supervisory hierarchy starts at the top
with Michael Trudeau as the Journal's editor; Walter
Herring, its managing editor; William H. "Bill" Taylor,
its acting city editor between July and November 1979
and thereafter its city editor; Perry "Skip" Frank, the
night news editor; and Anthony "Tony" Tierno, Re-
spondent's controller and business manager. who also
was its unofficial director of personnel. Respondent had
no formal personnel department. All the above personnel
are admitted by Respondent to be supervisors and agents
within the meaning of the Act. In addition, Respondent
admitted that Martin Weston, now its night desk editor,
a nonsupervisory position, was, in the period mid-July to
August 1980, its acting city editor and, for that 7-week
period, a supervisor within the meaning of the Act. Re-
spondent's publisher, Pierre Peladeau, its chief executive
officer, regularly maintains his offices in Montreal,
Quebec, Canada. 2
At least since 1978, the Teamsters represented four
units among Respondent's employees, including, inter
alia, a unit of newspaper truckdrivers. The 1978 collec-
tive-bargaining agreement between the Teamsters and
Respondent covering the drivers expired on November
1, 1979, and negotiations for its renewal commenced
before that time. Bargaining between the parties contin-
ued through October 1979, during one of which sessions
Publisher Pierre Peladeau threatened to close down the
: Peladeaul as subpeenaed by the General Counsel hut did not appear
at the hearing. Trudeau was alo uhpenaed. failed to appear during the
hearing. but appeared in the hearing room shoirtl5 after the close of the
hearing. Neither the Gelleral Counsel nor counsel for Respondent re-
qucsted hat the hearing be reopened to adduce testimony fronm Trudeau
newspaper if "one more nickel" was required for a labor
agreement. Subsequent bargaining sessions between Oc-
tober 1979 and January 21, 1980, resulted in no agree-
ment. On January 21, 1980. the Teamsters drivers en-
gaged in a strike which lasted until about 6 p.m. on Janu-
ary 24. 1980, when a new agreement was reached.
On January 22, however, Respondent had notified all
employees that, effective January 20, 1980. it was ceasing
publishing the Journal and that they were all terminated.
After the new agreement was reached on January 24. the
supervisors met on January 25. All terminated employees
were treated as new employees for rehiring purposes.
Shlifer was I of 5 employees not rehired, 43 others were
rehired. The decision not to rehire Shlifer. however, was
not based on "economics" but, according to Respondent.
on his "attitude" toward the newspaper and the "qual-
ity" of his work (G.C. Exh. 20). While Managing Editor
Herring. who spoke for Respondent in its failure to
rehire Shlifer, testified that it was at a January 25, 1980,
meeting of Respondent's senior supervisors that they re-
viewed all the employee applications for rehiring includ-
ing Shlifer's; that Peladeau was at the January 24 meet-
ing where agreement with the Teamsters was reached
but was not at the January 25 meeting where rehiring
was decided upon; that Peladeau did not discuss the re-
hiring of individual employees; that the decision to hire
or rehire the terminated employees and, inter alia. to
reject Shlifer was made at the January 25 meeting; yet,
the letter (G.C. Exh. 20) notifying Shilfer that Respond-
ent would not rehire him is not only dated January 24,
but also recites that the decision not to reinstate him on
the above bases was reached by on an agreement "after a
review by the editorial management . . . of your attitude
towards this paper and the quality of your work ....
I conclude, contrary to Herring's testimony, that the
decision to reject Shlifer was made on or before the date
(July 24) appearing on Respondent's formal notice there-
of; that Respondent's January 25 meeting, if any, ostensi-
bly called for the purpose of selection, was irrelevant to
Shlifer's rejection and that this factor demonstrates that
the version of Shlifer's rejection advanced by Herring is
unbelievable. As will be seen hereafter, I infer that it was
false. Moreover, I conclude that Herring's credibility is
adversely affected generally by this circumstance. As
noted hereafter, Shlifer spoke directly to Peladeau on
Guild matters. Peladeau's union animus was explicit and
unreserved. At no time has Respondent suggested the ex-
istence of clerical or other error in the above document.
For instance, City Editor Taylor also testified that the
strike ended at 6 p.m. on January 24 and the meeting to
select rehires was on the next day.
B. The Organizing Drive and Activities of Newspaper
Guild. Local 10
Sometime in or about August 1979, various employees
including David Harris Shlifer. Terrance, Brennan, and
others formed the Philadelphia Journal Health and Wel-
fare Association, an in-house labor organization of edito-
rial employees. In the period August through November
1979, Shlifer discussed the matter on several occasions
with Herring, the managing editor, and asked him if he
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objected to it. In rather colorful language, Herring told
him that he did not care one way or the other.
The Association became moribund by November 1979
and, in or about the first week of November 1979, it
ceased its activities. The editorial employees then con-
tacted Local 10 of the Newspaper Guild. Following a
November 17, 1979, meeting of the editorial employees
with the Guild, the Guild sent a telegram (G.C. Exh. 4)
to the Journal, advising that some 11 employees, includ-
ing Shlifer and Brennan, were "actively organizing on
behalf of the Newspaper Guild." By November 20, in a
letter to Peladeau, the Guild claimed majority status in
the editorial department and requested recognition and
the start of collective bargaining (G.C. Exh. 5). About
one-half of the 39 cards allegedly supporting that status
were procured by Shlifer. Leventhal attended many
Guild meetings. Brennan solicited four or five employees
to sign Guild cards. On November 28, 1979, the Guild
filed a petition for certification in Case 4-RC-13972 and
pursuant thereto, on December 17 and 21, 1979, and
February 12, 13, and 15, 1980, National Labor Relations
Board hearings were held thereon.
On March 31, 1980, the Regional Director for Region
4 issued his Decision and Direction of Election directing
that, in a unit of "all full-time and regular part-time em-
ployees of the Journal editorial department, excluding all
other employees, guards and supervisors," an election be
held for them to select or reject the Guild. Contrary to
Respondent's contention at the representation hearing,
the Regional Director refused to exclude Donald Le-
venthal on the basis that he was an irregular part-time
"odds" clerk and temporary copyboy. The election was
held on May 2 and 5, 1980, with the tally of ballots
(G.C. Exh. 11) showing 45 voters;3 23 votes for the
Guild, 16 against, and 6 challenged ballots. A Guild ob-
server at the election was Terrance Brennan. Thereafter,
on May 9, 1980, Respondent filed timely objections to
the conduct of the election (G.C. Exh. 13) 4 which result-
ed in the Regional Director's decision on July 23, 1980,
that the objections lacked merit and that Local 10 of the
Newspaper Guild be certified (G.C. Exh. 14). Since that
time, the Guild requested Respondent to bargain with it
and, at the time of the present hearing, negotiations were
in progress. On August 4, 1980, following certification,
the Guild notified (G.C. Exh. 15) Respondent that its ne-
gotiating committee would consist of seven persons: two
professional union employees and five unit employees of
Respondent. One of these five was Terrance Brennan,
discharged 9 days later on August 13.
C. Alleged Unlawfjl Surveillance
The complaint alleges that on or about January 26,
1980, Respondent, acting through Walter Herring, un-
lawfully kept under surveillance a meeting during which
employees were engaged in union activities.
:' There were apparently 43 full-time and 7 part-time editorial employ-
ees.
Respondent objected, irfer a/i, to rennan's advising Guild members
that the Guild would seek to replace Trudeau and Herring as unqualified
and for criticizing. at the plls. an anti-Guild management pamphlet.
These objection were rejected.
Pursuant to prior notice, on January 26, 1980, 2 days
after the end of the Teamsters strike when Respondent
asserted it would not rehire five Guild members, the
union members among Respondent's editorial employees
were to attend an II a.m. Guild meeting at its offices on
the ninth floor of an office building on North Broad
Street, Philadelphia. On his way to the meeting, desk as-
sistant Kenneth Szymkowiak said that while he was ap-
proaching the office building, he saw opposite him, some
80 feet away, Walter Herring, whom he had known
since 1973 and with whom he had worked in the period
1979 through 1980. At this point, Herring was some 75
feet distant from the entrance to the building housing the
Philadelphia Inquirer newspaper, which was situated di-
rectly opposite the building housing the Guild office;
their respective entrances are substantially opposite each
other across Broad Street. Szymkowiak described Her-
ring as having a beard. He further described him as
wearing a light green coat, which came slightly below
the hips. He did not note that Herring was carrying any-
thing. He then went upstairs to the meeting and reported
to the assembled group that he saw Herring standing in
front of the Inquirer building. The Inquirer building is
some 30 blocks or more distance from the Journal build-
ing. When Szymkowiak told this to the union agent, Wil-
liam Brown, Brown descended to the lobby of the build-
ing and as he was leaving the elevator he met the Guild
attorney, Warren J. Borish. (Both Borish and Brown had
seen Herring testify in December in the representation
case.) Brown told Borish what Szymkowiak told him
and they crossed Broad Street, and entered the Inquirer
building. As they were crossing Broad Street, however,
they said they both saw Herring going through the re-
volving doors into the Inquirer building. Brown asked
the guard at the entrance of the building whether the
person, whom they saw with a long roll of wrapped
newspapers under his arm, signed in as required by the
Inquirer. The guard told him that the person had not and
they watched the person walk quickly to a nearby back
door. On TV monitors near the guard, they testified that
they saw Herring running through the mailroom and
leaving through a back door. Borish recalled that, as
they entered the Inquirer building, Herring, before exit-
ing through a back door, turned and paused. Borish testi-
fied that Herring was wearing a tan trench coat. There
was no testimony that anyone saw Herring watching the
Guild building.
Herring and his wife testified that, through at least 1
p.m. on January 26, Herring was sleeping in his bed at
home. Whereas Herring testified that he did not leave his
house until 4 p.m., his pre-trial statement stated he was at
home the entire day. Herring testified that an old ac-
quaintance (Howard Shapiro) telephoned him on or
about I p.m. on January 26 and said that he had seen
him at the Inquirer building and wondered why Herring
did not wave to him. The old acquaintance was not
called to testify.
While aspects of the General Counsel's case raise
grave and obvious suspicions and while I was not at all
impressed with Herring's credibility or his wife's alibi
testimony, and was surprised by Respondent's failure to
964
QUEBECOR GROUP. INC.
call Herring's old acquaintance, Shapiro, I conclude that
the General Counsel's witnesses, by their inconsistent
identification of what the person was carrying and wear-
ing-both in color and style-sufficiently undermined
proof of a prinma facie case of the person's identity as to
require my recommendation that this allegation be dis-
missed. In addition, the distances at which recognitions
occurred and use of the TV monitor also lead to the pos-
sibility of misidentification. I do not find, on this record,
that the General Counsel proved identification by a pre-
ponderance of credible evidence even in the light of Re-
spondent's tepid denials and unexplained failure to cor-
roborate by calling Shapiro. Especially in view of my
conclusion that Herring's veracity was virtually eliminat-
ed in this hearing, I reluctantly recommend that the sur-
veillance allegation be dismissed.
D. The Failure To Rehire David Harris Shlifer
Alleged Treats of Discharge
David Harris Shlifer, also known as and using the
byline of David Harris, was employed by Respondent
from July 25, 1978, through on or about January 22.
1980. From January 25, 1978, through March 1979, he
was a general assignment reporter; in the period March
1979 to November 1979, he was court reporter assigned
by the managing editor to cover court proceedings at the
Philadelphia City Hall; and from November 1979
through January 22, 1980, he again was assigned as a
general assignment reporter. On November 15, 1979, he
received a $10-per-week wage increase from $260 to
$270 per week. This pay raise occurred about 3 days
before the Guild notified Respondent of Shlifer being on
its organizing committee and it is unclear whether Shlifer
was returned to the task of being a general assignment
reporter from being a court reporter before or after the
raise and before or after the Union notified Respondent
that he was on the organizing committee. In any event,
Anthony Tierno, Respondent's controller and business
manager, testified that ordinary raises were budgeted and
it appears that this raise was merely a periodic increase
given to Shlifer. Although Managing Editor Herring and
City Editor Taylor testified that well-prepared and
award-winning reporters do not necessarily make good
tabloid reporters, and notwithstanding Taylor's testimo-
ny that he had never heard of Shlifer's journalism
awards, the testimony is uncontradicted, and I credit it,
that Shlifer was I of the 10 "national finalists" in the
United States in his class of newspapers as an investiga-
tive reporter in competition for the Pulitzer Prize. 5
Moreover, Respondent's personnel file discloses (G.C.
Exh. 17) that not only did it know, shortly before it
hired him, that he was a finalist in the Pulitzer Prize
competition, but also that in 1977 he had won the Key-
stone Press Award awarded by Pennsylvania newspaper
publishers and had won national and statewide awards
from the American Legion in 1977 and 1978 with var-
ious other journalism awards in 1974 and 1975. In any
; Cross-examinaltion by Respondent al' aempted to demonstrate hall
because his college degree was in mathematics and compuler system anal-
ysis with merely courses in writing. speaking, and television production,
Shlifer as not basically prepared as a journalist Respondent seas, not
successful on this poMinl
event, in 1978. Herring and Taylor published in the Jour-
nal various letters from the public praising Shlifer's work
(G.C. Exhs. 22(a)-(c)). Although Herring generally
denied ever complimenting Herring on his work, I credit
Shlifer's specific testimony that, at each publication of
one of the complimenting letters from the public, Her-
ring told him that he had done a good job of reporting.
Certainly, if Shlifer's work was considered of poor qual-
ity Respondent would hardly print letters from the
public praising him. Herring's denials are not credited.
The matter of the relationship between Herring and
Shlifer regarding compliments and Shlifer's work "atti-
tude" will be discussed hereafter.
Shlifer, who signed a membership card in the Guild on
November 20, 1979, as above noted, appeared at the De-
cember 1979 representation hearings, distributed Guild
literature, spoke to co-employees in favor of the Guild,
and collected about half of the 39 membership cards
signed by the editorial employees on behalf of the Guild.
In November 1979, Publisher Pierre Peladeau6 met
with the editorial staff and told them that they should
work harder; that the Journal would continue in exist-
ence; that he would not fight against a union but would
rather close down the newspaper: that if he had not
come down to the United States from Canada with mil-
lions of dollars, they would have been out of jobs; that
even though he recognized that it was the American
way to join labor unions, if he was faced with negotia-
tions he would close down the paper. The complaint al-
leges that, in or about November 1979, Peladeau threat-
ened to discharge employees if they supported the
Union. While the specificity of the allegation relates to
the discharge of employees, I find rather that the threat
to close down the newspaper if the employees caused
him to have to negotiate with the Union included the
termination of the employees. Even if that were not so,
the threat to close down is unlawful. General Stencils,
Inc., 195 NLRB 1109 (1972). The matter, in any event,
was fully litigated and neither Peladeau nor anyone else
denied the substance of Shlifer's testimony. Nothing in
the evidence suggests that Peladeau was attempting to
suggest the existence of economic consequences beyond
his control. I conclude that Respondent, by Peladeau, in
violation of Section 8(a)(1) of the Act, threatened to
close down the newspaper, ultimately discharging the
employees, if he was forced to negotiate with the Union.
As above noted, the Teamsters engaged in a strike on
behalf of Respondent's drivers in the period January 21
through January 24, 1980. In the evening of January 20,
1980, the Guild called a meeting of its editorial employ-
ees to decide what their action would be if the Team-
sters did in fact strike, and, in particular. whether the ed-
itorial employees would cross a Teamsters picket line.
Shlifer testified without contradiction that there were
rumors that Peladeau would close the paper if the Team-
sters struck. Sometime after midnight, therefore, on Jan-
uary 20-21, 1980, Shlifer, in Philadelphia, telephoned Pe-
ladeau in Montreal, Canada. Shlifer recognized Pela-
deau's voice and identified himself by name not only as a
I teladc.au did inol te.sif i the instantl hearing, as ahoc noted
965
DECISIONS OF NATIONAL LABOR RELATIONS O()ARD
Journal reporter but as a Guild organizer. Peladeau told
Shlifer that he was not bluffing and would close the
newspaper if the Teamsters struck. The strike began on
January 21.
It is undisputed, as above noted, that on January 22,
1980, Respondent terminated the employment of all of its
employees notifying them that it was ceasing its oper-
ation in Philadelphia (G.C. Exh. 19).
On the morning of January 25, 1980, according to tes-
timony of Herring and Tierno, Respondent's supervisors,
Trudeau, Taylor, Herring, Tierno, and Gauger (sports
editor), held a meeting. At that time the newspaper had
discontinued publication and all the employees had been
already terminated. Herring and Tierno testified that Re-
spondent (which, on the previous evening, at or about 6
p.m. reached agreement with the Teamsters) had already
decided to reengage in the publication of the newspaper.
On January 25, 1980, it held this meeting allegedly to
decide whom it would rehire. The testimony of Taylor
and Herring was that the record of every employee (in-
cluding Shlifer) in the editorial department, entertain-
ment department, and those generally in the news de-
partment (including photographers and supervisors) was
discussed with regard to reemployment. Taylor testified
that in that January 25 meeting they had to decide who
not to rehire in view of the economic trimming that they
had to do. The letter to Shlifer showed, and Respond-
ent's other witnesses testified, that the decision not to
rehire Shlifer was not economic. Respondent's letter
(G.C. Exh. 20) to Shlifer says nothing of economic ne-
cessity. Respondent, at that January 25 meeting, decided
not to rehire five editorial employees (including Shlifer)
and one supervisor. With regard to three of these five
employees not rehired, they were all described by City
Editor Taylor as not good tabloid writers. These persons
were Chris Winans, Barbara Lempert, and David Shlifer.
He said that they were not good tabloid writers because
they were not self-motivated; they were slow in doing
work and did not do the three to four assignments per
day which other reporters did; and they did not write in
the Journal's breezy tabloid style. In particular, Taylor
testified that Shlifer regularly did only one or two as-
signments per day which was a poor output and, in addi-
tion, when he was reassigned from the city court to gen-
eral assignments his output did not improve. He also said
that it was difficult to force Shlifer out of the office and
that he used telephones instead of going out into the
streets and getting the stories. It is clear, nevertheless,
that neither Taylor nor Herring ever warned Shlifer re-
garding the quality or quantity of his work. There was
conflicting testimony whether Herring, in particular, on
numerous occasions, complimented him on his work.
There is no doubt that Respondent printed several letters
praising Shlifer, thereby putting its imprimatur on the
readers' letters. While Shlifer may have been unhappy
and insubordinate, as Taylor testified, when he was re-
moved from his post as court reporter Respondent took
no actions against him. I do not credit Respondent's as-
sertions of his continual poor writing, slowness, and in-
subordination.
In any event, I credit Shlifer's testimony that he was
never told by any one that he did not write in a tabloid
style. Indeed, the record is uncontradicted that, on par-
ticular stories in September 1979, October 1979, and as
late as January 1980, Herring told Shlifer that he had
done a good job. In October 1979, for instance, Shlifer's
testimony is uncontradicted that Herring told him that he
had done a good job in covering a "visit to Washing-
ton." He also testified that Herring and Taylor had told
him that he had done a good reporting job on an alleged
Irish Republic Army terrorist in the Philadelphia area.
Finally, as late as January 14, 1980, Herring told him
that he had done a fine job on a story close to a dead-
line. He told him that it was the kind of story that a tab-
ioid wanted to do.
The termination letter which Shlifer received from
Herring, dated January 24, 1980 (G.C. Exh. 20), states:
After a review by the editorial management of
the Philadelphia Journal of your attitude towards
this paper and the quality of your work, we have
reached an agreement not to reinstate you to your
former position as General Assignment Reporter.
I will advise you later this week as to the amount
of separation pay due you. If you have any ques-
tions, please give me a call.
It should be noted that, although reference was made
to the quality of Shlifer's work, there is no suggestion in
this letter regarding the quantity of his work, a matter
continuously advanced as a reason not to rehire him.
Be that as it may, the evidence, as a whole-particu-
larly the effect of the date of the January 24 letter to
Shlifer compared to the alleged purpose of the January
25 meeting-clearly demonstrates that Respondent's de-
fense to the Shlifer matter is factually spurious and unac-
ceptable.
As noted above, Respondent's termination letter (G.C.
Exh. 20) to Shlifer, dated January 24, 1980, relates the
existence of a review by editorial management. Respond-
ent's witnesses testified that Shlifer was terminated only
after an exhaustive January 25 review by Herring,
Taylor, and other editorial supervisors, of all 43 employ-
ees' qualifications. That alleged meeting and review,
however, did not occur until January 25. Peladeau, ac-
cording to Taylor, was present in Philadelphia until
around 6 p.m. on January 24 to settle the Teamsters
strike but did not participate in the decision not to rehire
Shlifer. Since Respondent wrote to Shlifer on January 24
announcing its refusal to rehire him, the decision was ob-
viously made no later than January 24.
I therefore regard Herring's, Tierno's, and Taylor's
testimony regarding the January 25 review of all the em-
ployee records as the basis of the decision not to rehire
Shlifer as pure invention. The January 25 meeting was a
device to cover a January 24 decision. Whether this
story was concocted to shield Peladeau (who allegedly
was not present at the alleged January 25 meeting) from
having participated in the pre-January 25 decision not to
hire Shlifer (who on January 20-21 had telephoned him
and identified himself as a Guild organizer) is not crucial.
What is evident is that, on this record, and absent other
explanation, Herring, Tierno, and Taylor gave clearly
false testimony regarding at least the mechanics and
966
QUE[ECOR GROUP. INC
method of ridding Respondent of Shlifer. An award-win-
ning journalist. he was publicly complimented by Re-
spondent's publishing, on several occasions. readers' let-
ters praising him. A knoswn Guild activist, he was not re-
hired immediately after the Teamsters strike settlement.
While from time to time he may have not performed
at full capacity. as Respondent asserts I cannot accept its
assertion that he was not rehired because of the "quality
of his work." I infer that what Respondent meant by
Shlifer's allegedly improper "attitude towards this paper"
(G.C. Exh. 20) was his open and known Guild advocacy
including his telephone call to Peladeau on January 20-
21.
In the face of Respondent's Guild animus, direct
knowledge of Shlifer's Guild activities, the timing of Re-
spondent's letter, its printing of letters praising his work,
and its clumsy description of when and how it arrived at
its decision not to rehire Shlifer I conclude that all such
testimony and the reasons it advanced were at best
wholly pretextual, if true. It advanced, in addition, other
reasons at the hearing not found in the January 24 letter
(slow work, insubordination, etc). In short, I recommend
that the Board find that Respondent, on January 24,
1980. refused to rehire Shlifer because. as alleged, of his
Guild membership and sympathies.
Under these circumstances, I see no reason to burden
this Decision with elaborate analysis of whether Re-
spondent proved that it would, in any event, have not re-
hired Shlifer regardless of his Guild activities, Wright
Linc. a Division of Wrighi Line. Inc., 251 NLRB 1083
(1980), or, indeed, which legal precedent applies.7
E. The Discharge of Donald Leventhal and .4lleged
8(a)(l) iolaions
Leventhal was first employed by Respondent in Janu-
ary 1978 as a night copyboy for 2 months. He was there-
after laid off and rehired in April 1978 as a sports handi-
capper wherein he would write up the odds and "point
spreads" in various athletic contests. In addition, in Feb-
ruary 1980, he was hired as a "day copyboy." In June
1980, he relinquished the job of a day copyboy to take
another job outside Respondent's organization but con-
tinued as the sports handicapper doing a daily column
under the name of "Diamond Don." As a copyboy. he
had received $150 per week plus medical benefits, and as
the writer of "Diamond Don" he received $25 per
column on each of 6 days per week for an additional
$150 per week.
Leventhal signed a Guild card on November 29, 1979,
and attended all five Guild organizing meetings. He also
solicited other copyboys to vote for the Guild in the
election.
Respondent's business manager, Tierno at the Board
representation hearings in February 1980, testified that
he would recommend that Leventhal lose one of his
jobs. Tierno described Leventhal's primary job as that of
I ccept h (ict General Counscl', obser;tliol til Ihe Hoar,tl. ill Hlroit
i,,. liiguIlsl,.ld "prctcIxt" caC , Fromn "dl;ll nioli ic" cc Itcrc. ho -
cxer. the faclts supportilg the "prctcxl" , crc IInot C in Clsihliishel I hus.
Rcsponderit's dcfclnsc mi filing to rehire Slifr Idoes lIot ric to l itt 1Ic cI
olf a prccx
preparing the betting charts and his secondary job as
daytime copyboy.
Having discovered the existence of such testimony,
Leventhal sought out Tierno and Herring. In particular.
on or about February 12 or 13. 1980. he spoke to Her-
ring and said that he heard that his name had come up at
the hearing and that he would lose one of his jobs. He
protested that he was doing a good job. Herring first
told him that he did not want to discuss the matter and
then told Leventhal that "because of the f- Guild, you
are going to lose your job." This Herring statement was
not denied and was corroborated by Kevin Mulligan. an
employee currently employed by Respondent.
The consolidated complaint alleges (par. 6(b)) that on
or about February 12, 1980, Herring threatened to dis-
charge an employee if the employee selected the Union
as collective-bargaining representative. In view of
Shlifer's undenied and corroborated testimony I find that
Herring's February 12 or 13 statement did constitute an
unlawful threat to discharge Leventhal in violation of
Section 8(a)(1) of the Act. It is immaterial whether Her-
ring's threat related to either one or both Leventhal jobs.
About 2 weeks later. Leventhal. alone with Herring in
the newsroom, with the door closed, asked Herring to
elaborate on what Herring had told him 10 days before.
Herring did not deny Leventhal's further testimony that
Herring then told him that he would lose his "Diamond
Don" job because, if the Guild came in, the Guild could
dictate to Herring a higher salary for that job than that
which was presently being paid.' Herring told him that
he would not stand for the Guild telling him what to pay
for the job. In addition, Herring failed to deny Leventh-
al's further testimony: That Herring told him at that time
that the copyboys--Leventhal and the others-Cwere
"stabbing him in the back." Rather than permit the Guild
to dictate to Herring the salaries and other conditions
with regard to the Diamond Don job, Herring told Le-
venthal that he would obtain a syndicated handicapper
which would be cheaper; that he did not care who Le-
venthal would tell; and that he would "get rid of all
seven of the part-time copyboys and get two full-time
copyboys."
The consolidated complaint (par. 6(c)) asserts that
Herring, on or about February 20, threatened to dis-
charge employees if they selected the Guild as their col-
lective-bargaining representative. On the basis of the un-
contradicted and credited testimony of Leventhal I con-
elude that Herring threatened to remove Leventhal from
the Diamond Don job and to remove all the part-time
copyboys if the Guild became the bargaining agent. At
that time, whether the Guild could "dictate" a higher
salary was purely academic. I also conclude that Her-
ring's statements-that the copyboys were "stabbing him
in the back," that they could be replaced. and that Le-
venthal would be replaced by a syndicated handicap-
per-all were threats and warnings of discharge. I con-
clude that by those statements. and by each of them.
Herring made unlawful threats and warnings of dis-
charge conditioned upon the Guild becoming the bar-
' ii, COIll c, aillol tlook pLice hctor the i M 181} c1cciIIn Nto (imll
dte ndil t had hcll llri.' o[ R,ponllt .1x l 1 X] l
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agent of employees, thereby violating Section
8(a)(1) of the Act.
Leventhal testified that in early March 1980 he had a
further conversation with Herring when Herring called
him in to his private office. Herring was "upset" and ac-
cused him of having gone to the National Labor Rela-
tions Board, and falsely telling the Board that Herring
had threatened his job. When Leventhal denied doing so,
Herring stated that he could not understand why Le-
venthal had done so and was "stabbing me in the back."
Leventhal replied that he had gone to the Board because
he had spoken to Herring twice; had received no satis-
factionl; and wanted to put his story on the record,
having been threatened that he would lose his job be-
cause "of the f- Guild." At that point Herring said that
what he had told Leventhal was all that he wanted to
say and told Leventhal to "just get out of my office."
Paragraph 6(d) of the complaint alleges that, in mid-
March, Herring unlawfully interrogated an employee re-
garding information provided to the Board. The facts as
stated by Leventhal in his uncontradicted testimony fully
support that allegation notwithstanding that Herring
made accusations rather than asked questions. The natu-
ral consequences of such accusations in a closed door
setting, with Herring being emotional, is to make inquiry
into the accuracy of the report which Herring received
regarding Leventhal's visit to the National Labor Rela-
tions Board. This would constitute coercive interrogation
within the meaning of the Act relating to Leventhal's co-
operation in a Board investigation, and a violation of
Section 8(a)(1). I so find. See Westinghouse Electric Cor-
poration, 237 NLRB 578, 580 (1978).
In the early afternoon of April 22, 1980, while Le-
venthal was helping a secretary perform a stapling oper-
ation, Herring came out of his office yelling at Leventhal
to "take these f- pages over to the Bulletin." Within 5
seconds, Herring yelled, "Now!" Leventhal said to Her-
ring, "What's wrong with you?" When Herring did not
answer, Respondent's news editor, Perry "Skip" Frank,
who was sitting nearby, motioned Leventhal over to
him. Frank told Leventhal: "One of these days, I'll
punch him in the mouth. He had no right to say that."
Leventhal answered: "I can't wait for the Guild vote. I'll
vote twice if I can." City Editor Bill Taylor, standing
about 8 feet away, then yelled at Leventhal, pointing his
finger at him: "Watch yourself."9
In June 1980, Leventhal, as above noted, quit the job
of copyboy in order to take certain outside employment.
He nevertheless continued in the job of writing the
column as "Diamond Don."
On Monday, August 18, 1980, Leventhal was notified
by the assistant sports editor (G.C. Exh. 26) that, effec-
tive immediately, the "Diamond Don" handicapping fea-
ture was being discontinued "for budgetary reasons and
your services will be no longer required by the paper.
This is effective immediately."
At the hearing, counsel for Respondent attempted to
cross-examine Leventhal to show that he was terminated,
in part, for disciplinary reasons. I precluded him from
" Responldent failed to call 'Perr! "Skip" Franlk i rebhut this r other
testimony. At the ime oif he istant hearing rank as no longer in R-
sponrdenll' cnmplh>
such inquiry after inquiring whether Respondent desired
to change its defense or offer additional reasons for the
termination. Respondent asserted that it did not desire to
change its defense. Leventhal, according to Herring, was
the only editorial department employee terminated, and
the only employee Herring knew of who was terminated
because of cost cutting.
F. Respondent s Reasonsfor Terminating Donald
Leventhal
Anthony Tierno, Respondent's comptroller and busi-
ness manager, testified that in mid-1980, around April,
Respondent did a midyear budget analysis and, in a cost-
cutting conference, decided to eliminate certain sports
and entertainment expenses. t Respondent had employed
certain athletic stars in hockey, basketball, baseball, and
football to write articles in the Journal. Tierno testified
that Respondent decided to discontinue these items as
too expensive when the season for each such athletic ac-
tivity ceased. Herring told him that he could get a sports
handicapper to write the column at reduced cost. Tierno
testified at length that, as a matter of fact, the athletic
stars were successfully terminated and handicapping
services were procured at a fraction of the cost of Le-
venthal's column. Tierno also credibly testified that Re-
spondent thereafter renegotiated various contracts which
cut down Respondent's costs in the use of paper, equip-
ment, and syndicated columns (such as Hollywood and
New York Reporters, the UPI service, and the New
York Times Syndicate). According to Tierno, this mid-
year budget analysis was not the first cost-cutting effort.
No records to support such other efforts were produced.
No explanation was offered why the termination oc-
curred in the middle of the pay period or what caused
the delay in implementing the decision from April to
August. "
G. Discussion and Conclusion
As Herring testified, he and Taylor made the recom-
mendations on all terminations and Trudeau, without fur-
ther discussion, made the ultimate decisions. Herring cor-
roborated Tierno's testimony and said Trudeau and
Tierno, in March 1980, told him of the necessity for eco-
nomic cuts in the budget for the final 6 months of the
year; that he thereafter reviewed all of the contracts, in-
cluding syndicated columns and freelance writers, and he
recommended to Tierno that the cost cutting include not
only the discontinuance of the syndicated features but
also include the Diamond Don column. Herring did,
however, testify that, other than Leventhal being termi-
nated in the editorial department, no other employee was
let go in the editorial department because of the April
cost-cutting conference. In addition, he testified, he knew
of no other employee in any department who was termi-
T"' hus, this nlcetilltg arid decishi n tccurred hbets tern accuilnig l.e-
ent1hal of stabbhhing ResprideCnt i tihe hack ard cursing him filr not
acting imedi ale1 ill performing a task which. on this record, did not
call fr instantane ous reaction . t also orccurrcd after the March 31 D)eci-
sion and l)irection tf Flectiin and before tile May 198( electi(n
a I da! is hllihrslas (if each ,elek. c, ering the precedilng Sunda
through :rlda.
QUEBECOR GROUP. INC
nated because of this cost cutting. As above noted there
was no explanation for terminating Leventhal in the
middle of the pay period or why April cost cutting re-
sulted in a mid-August action. It might be noted that the
Guild was certified on July 23, 1980.
It is unnecessary to analyze in particular the merits of
Respondent's defense that Leventhal was let go as a
cost-cutting feature since that defense on the instant facts
is immaterial; nor is it necessary to remark that this cost-
cutting conference occurred between the National Labor
Relations Board hearings in February and the May elec-
tion. It is sufficient to note, in order to decide the lawful-
ness of the Leventhal discharge, that Herring failed to
deny the otherwise credible Leventhal testimony that in
or about February 20, 1980, Herring told Leventhal that
he would lose his Diamond Don job because, if the
Guild appeared, he would refuse to let the Guild dictate
to him a higher salary for that job; that Leventhal and
the other copyboys were stabbing him in the back; and,
particularly, that rather than permit the Diamond Don
column to continue under Guild-dominated economic
circumstances, Herring threatened to get a cheaper syndi-
cated handicapper. I conclude from these undisguised
threats that Herring carried them out under the guise of
economic necessity. The sequential basis for the actual
elimination of the Diamond Don job was the success of
the Guild on July 23, 1980, in becoming the certified col-
lective-bargaining representative of the employees and
Herring's expressed desire to avoid anticipated Guild
dictation. Indeed, he specifically previously threatened to
get a cheaper syndicated handicapper because of the
advent of the Guild. This is what Tierno did. Tierno ob-
tained the services of two handicappers, respectively at
$25 a week and $10 a week, and two other handicappers
at no cost in order to replace Leventhal. Nevertheless,
these economies as a reason for terminating Leventhal
are no more believable than Shifler's incompetence and
bad "attitude." Surely if the cost-cutting conference oc-
curred in March or April, there was little reason to ex-
ecute decisions as late as mid-August. The intervening
factor was the July 23 Board certification of the Guild.
Moreover, since Herring predicted that the advent of the
Guild would trigger his use of cheaper services, the eco-
nomic issue of whether there was "cost-cutting" is "le-
gally" irrelevant. This economic defense, on the uncon-
tracted and credited Leventhal testimony, is an obvious
pretext even if true.
I find and conclude, therefore, that the cost-cutting
and economic bases for the termination of Leventhal (the
only employee on this record so terminated) and the
elimination of his column merely carried out Herring's
prior unlawful threats and was a pretext to mask and
cover the explicit threat by Herring, in February 1980,
to do just that: Elimination based upon the anticipated
advent of the Guild as the editorial department bargain-
ing agent. I therefore conclude that the termination of
Leventhal, on or about August 18, 1980, was a termina-
tion in violation of Section 8(a)(3) and (1) of the Act as
alleged.
H. The Threat To Discharge and the Discharge of
Terrance Brennan
As above noted, although Tierno placed the cost-cut-
ting conference as taking place in April 1980, Herring
stated that it occurred as early as March 1980.
City Editor Taylor, Brennan's supervisor, testified that
the final decision to fire Brennan was Hcrring's and Tru-
deau's and not his own. He testified that he never criti-
cized the quality of Brennan's writing.
Anthony F. Tierno testified with regard to Respond-
ent's policy on the granting of wage increases to employ-
ees, distinguishing two types of pay raises: The ordinary
annual raises which were "budgeted" a;id the "extraordi-
nary" raises based on merit, promotion, or in any case.
an event not planned for or budgeted. With regard to
this second form of increase, the extraordinary raise,
Tierno said that a special form would he entered into the
payroll record to show the change, and, for editorial de-
partment employees, Herring would be required to pre-
pare a supporting memorandum.
Terrance Brennan was employed by Respondent for
the period March 4, 1979, through August 13. 1980. He
had been in journalism since 1973. From March 4, 1979,
through December 15, 1979, he worked on the night
shift as a general assignment reporter where he would
also do rewrite work from the news services. From De-
cember 15, 1979, through May 23, 1980, he was made
the city hall reporter (and also the court reporter until
February 1980). Lastly, in the period May 1980 through
August 13, 1980, like Shlifer, he was removed from the
city hall beat and made a general assignment reporter
and rewrite man. He was discharged on Wednesday.
August 13, 1980, in the middle of the pay period.
The evidence is undisputed that Brennan, whom I ob-
served to be a large, bluff, and apparently uninhibited
person, discovered, in or about the end of February or
the beginning of March 1980, that Herring. in early Feb-
ruary, had hired a new reporter with less experience
than Brennan at a salary of $300 per week. Brennan,
hired in March 1979, had a starting salary of $250 per
week. When he discovered that Herring had hired this
new reporter at $300 per week, about a month before the
cost-cutting conference, he went directly to Chief Editor
Trudeau's office and used violent and extremely abusive
language to him, asserting that Herring's action had
"screwed" Brennan out of his proper pay. He demanded
a $75-per-week increase from Trudeau and told him that
he wanted it that very day. According to Tierno (Tru-
deau did not testify) Trudeau promised him a raise but
told him not to scream at him. Brennan then visited Her-
ring and demanded the same thing. Herring told him he
did not think he could get him a raise but he would look
into it. By on or about March 15, 1980. oddly at or about
the time of commencement of Respondent's alleged cost-
cutting midyear conference (see the Leventhal matter.
above), Respondent nevertheless granted Brennan a $50-
a-week increase to $325 per week as described below.
According to Tierno, Herring failed to prepare a memo
for this extraordinary nonbudgeted pay raise because
Trudeau and Herring had made the decision on an imme-
diate basis and it was too quick for memorialization. I
969
DECISIONS OF NATIONAL. LABOR REL.ATIONS BOARD
neither understand nor credit such an explanation and
draw an adverse inference from the failure to make a
credible explanation for the failure to document this
transaction in accordance with Respondent's practice.
It is uncontested that, in both Herring's and in Tru-
deau's offices, Brennan threatened to quit unless they
gave him the pay increase. It is also undenied that, after
Brennan later returned from a week of vacation, he told
them that he was looking for a job. In March 1980, he
made an appointment with Taylor and Herring in a
saloon where they discussed the matter of the pay raise.
Herring told Brennan that he could get Brennan a raise
of $50 per week (after speaking to Publisher Peladeau)
and that he hoped that if he could get him the raise
Brennan would stay. Herring then offered him the raise
and Brennan said he would later call Herring. When he
called Herring the next night and said that he would stay
with Respondent, Herring said: "Good."
There is no contradiction that Brennan was active in
the formation of the Philadelphia Journal Health and
Welfare Association in August 1979 and that he signed a
card for the Guild on November 17, 1979. He not only
signed the card but he also attended all Guild meetings
before the May election, spoke in favor of the Guild,
was known by Respondent to be on the organizing com-
mittee (G.C. Exh. 4), and, most particularly, was the
Guild observer at the May 2, 1980, election. Around
August 4, Brennan was known to Respondent to be one
of five employees on the Guild negotiating committee
(G.C. Exh. 15).
On July 25, 1980, 2 days after the Guild was certified,
Brennan was working as a general assignment reporter
under the direct supervision of Perry "Skip" Frank, the
night news editor. At or about 12:35 a.m., he saw Super-
visor Frank alone in Herring's office. Frank called Bren-
nan into the office, told him that he was leaving the
Journal to return to Wisconsin; that Herring was "out to
get [him]-to fire [him] because of Guild activities"; and
that Herring wanted Frank to fire Brennan but Frank re-
fused because Brennan was "doing [his] job." Frank told
Brennan that he resented being put in the role of the
"heavy," and was "not that much of a p-" Lastly,
Frank told Brennan that he did not think the Journal
would survive; that Brennan was "good"; and that Bren-
nan should try to get a job at the Miami News where
other former Journal employees were working. "
I find and conclude that Frank's statement to Brennan
that Herring was out to "get" him and wanted to fire
him because of his activities in behalf of the Guild was,
as alleged, an unlawful threat of discharge in violation of
Section 8(a)(l) notwithstanding that it was placed at the
doorstep of Herring rather than Frank. J. W Mayv, Inc.,
147 NLRB 942, 964 (1964), enfd. in pertinent part 356
F.2d 693, 699 (2d Cir. 1966).
' Respondent failed to seek a subpena for Frank's attllendance until the
middle (lf the hearing. Further, although I granted Respondentls applica-
tion fior a suhpena. I denied Respondents application for a continualce to
discover FIranlk's whereabouts and. if neccsary. serve him. P'ar. 6 of the
complaint, dated Octlober 10, 1
9K(I, alleges thalt Frank, on July 25. 1)80,
threaltened employees with discharge because of their activities il behalf
of the Unioll
It is undisputed that by memorandum dated March 8,
1980 (Resp. Exh. 2), City Editor Taylor delivered an of-
ficial notification of misconduct to Brennan wherein it
warned him against repetition of his loud and abusive
treatment of Editor-in-Chief Trudeau when Brennan
burst into his office and shouted obscenities at him in the
presence of other Journal staff members relating to a
"misunderstanding" over his paycheck. Although Bren-
nan denies having been served with a copy or of know-
ing about it, I discredit Brennan and conclude that
Taylor gave him a copy of it even though Taylor testi-
fied that he did not observe Brennan read it when he
gave him a copy of it. Nevertheless, as above noted, and
notwithstanding this March 8 warning, Brennan, pursu-
ant to his abusive ultimatum delivered to Trudeau and
Herring, contemporaneously or immediately thereafter
received the pay raise of $50 per week.
It is undisputed that, about I week after Guild certifi-
cation and Frank's recitation of Herring's unlawful
threat, on July 31, 1980, Herring and Taylor prepared a
discharge notice for Brennan. The discharge notice con-
tained six paragraphs and, according to Herring, was not
served on Brennan on July 31, 1980 (according to its
terms it was to be effective immediately), because, in dis-
cussions with Editor-in-Chief Trudeau, Trudeau wanted
Herring to give Brennan another chance to see if he
could redeem himself. Thereafter, as above noted, the
Guild notified Respondent, by letter dated August 4,
1980, that Brennan was one of five employees on the
Guild negotiating committee.
Brennan was terminated on August 18, 1980, in the
middle of a pay period (Wednesday). There is no evi-
dence that the discharge required haste. On August 18,
1980, Brennan was served with a termination notice (ef-
fective August 13, 1980, the same day of the Leventhal
discharge) with the same six paragraphs appearing in the
July 31 termination notice plus an additional seventh
paragraph. This August 18, 1980, document (G.C. Exh.
28) was served on Brennan by certified mail sometime
after August 18, 1980.
Lastly, there is no dispute that Brennan was suspended
for 2 weeks without pay because of a series of incidents
on May 19, 1980. In the notation accompanying the 2-
week suspension (Resp. Exh. I), Herring makes six asser-
tions in subparagraphs (a)-(f). Respondent asserts in para-
graph (a), on May 19, 1980, contrary to Brennan's denial,
Respondellt could not locate him for a period of 2 hours
during which he was not at his city hall beat. I discredit
Brennan's testimony that he was inspecting his car which
was being repaired during his lunch hour. However, con-
trary to Respondent's assertions i subparagraph (b)
(Resp. Exh. ), that Brennan failed to file stories on May
19, on the basis of the testimony of Kenneth
Szymkowiak, I conclude that Brennan did file two re-
ports relating to his work at the city hall. With regard to
the third assertion that is found in subparagraph (c), I
conclude, as Respondent suggests, that Brennan did
become abusive to Supervisors Frank, Taylor, and Her-
ring, telling them that they did not know what they
were doing and using profane language. Further, I find,
in accordance with Respondent's assertion, that Brennan
970
QUEBECOR GROUP. INC.
told them if they did not like what he was doing that
they could do it themselves. With that remark, on or
about May 23, Herring removed Brennan from his city
hall beat and placed him back on general assignment. I
also conclude that, as Respondent asserts, this was not
the first incident when Brennan insulted and abused Re-
spondent's management personnel with profanity, that he
also reported late for work, and that, on occasion, he
held up the paper's production by filing copy extremely
late.
At the conclusion of the 2-week suspension, when
Brennan returned in June 1980, Herring told Supervisors
Taylor and Frank to document Brennan's continued mis-
conduct. Thus, Frank, on July 9, wrote a memorandum
to Herring to inform him that, in Frank's opinion, Bren-
nan's services were no longer needed because of Bren-
nan's overall sloppiness and unwillingness to get his job
done (on July 25, he told Frank he was a "good" report-
er, supra). He stated that, in particular, he was forced to
rewrite a story submitted by Brennan relating to a freak
accident at Willow Grove Air Base and that, when he
told Brennan to redo it, Brennan did so but required a
lot of work to get it into shape. Frank's memorandum
states that for many reasons, including the above reasons,
Brennan should be dismissed. '
With regard to Brennan's August 18, 1980, termination
notice (G.C. Exh. 28), the first paragraph states that he
had already received a warning letter accompanying his
2-week suspension. I find this to be true. The next allega-
tion is that on July 6, 1980, contrary to Respondent's in-
struction that he type daily column material on July 6,
he failed to do so. Then, apparently noting Supervisor
Frank's July 9 memorandum, above (Resp. Exh. 3),
which was never served on Brennan nor was Brennan
ever notified of its existence, Taylor and Herring in the
termination letter note that Brennan's performance at the
Willow Grove Air Base accident was sloppily executed,
requiring extensive copy editing.
In view of Brennan's uncontradicted and credited testi-
mony that, thereafter, on or about July 25, 1980, Frank
told him that he was a good reporter but that Herring
was out to get him fired for Guild activities and wanted
Frank to do the firing: and in view of Frank's failure to
appear to testify with regard to the substance of his July
9 memo recommending the discharge, I give no weight
to the series of events related therein in view of the fact
that Frank never contacted Brennan or warned him
about his poor writing and in view of the fact that Bren-
nan's report of the matter on July 6 (G.C. Exh. 29) was
good enough to earn him a byline (the accident at the
Willow Grove Air Base). In any event, in view of
Frank's July 25 comments to Brennan, above, I conclude
that the July 9 memo was part of "building a record"
against Brennan.
The August 18 termination notice next states that
Brennan was instructed to prepare a story on the possi-
bility of a gasoline price war and failed to do so, with
": On July 25. 1980. as ahoe noted. Frank told rennan hat Herring
wanted to fire Brennan because of Guild activities I regard this Frank
memorandum to, he part of a scheme It build ia record agililnst t rcniian
This conclusion flosuss from Dtrellnan' s ulcontradilced and credited tesi-
monly that Brennlanl was a "good'" reporter ccordillg to Frank
the assignment being carried out by another reporter.
Brennan testified that, although Taylor gave him the as-
signment on July 8, Supervisor Frank, the night news
editor, told him to forget about the assignment and then
gave him a different assignment. Brennan testified that
Supervisor Taylor was not told of this switch and Bren-
nan never mentioned it to him. Brennan credibly testi-
fied, without contradiction, that it is a common practice
for the night news editor (Skip Frank) to countermand a
prior order by the city editor (Taylor). In view of this
uncontradicted explanation, I conclude that Respondent's
accusation of Brennan's failure to compose the story on
the gasoline price war is unfounded.
In the next paragraph of the termination memoran-
dum, Respondent asserts that Brennan was directed to
type a "zodiac feature" and place it into the computer
for use in the July 14 paper. Respondent asserts that
Brennan failed to do this and that the copy was later
found in the trash pile. I credit Brennan's testimony that
he never refused to do so; never failed to put it into the
computer; actually did so: and that the material from
which he created the disc for the computer was placed
in the wastebasket after the matter was placed on the
disc. Brennan's testimony was in no way undermined and
I credit his explanation. I therefore do not accept the as-
sertion that he failed to type the zodiac feature. The fact
that the preliminary material, after being transcribed for
the computer, was later found in the trash basket is irrel-
evant.
Next, the termination memorandum states that with
regard to a July 1980 series of major news stories, in-
cluding a fire at a nearby brewery (the Publicker Brew-
ery), and the wake for Ann Kilcollum's fiance, Brennan
made no attempt to humanize the story with quotes from
the people involved. This, according to Respondent,
made the stories extremely weak and required that they
be rewitten by an editor. In response to this assertion,
the General Counsel produced a copy of Respondent's
newspaper for July 23 (G.C. Exh. 31) showing that there
was a quote from a police officer. Brennan's uncontra-
dicted testimony is that his story contained the only
quote in any Philadelphia newspaper from a person near
the fire. Similarly, the General Counsel adduced a July
28 copy of the Journal (G.C. Exh. 32) relating to the
death of Ann Kilcollum's fiance which document shows
various quotations. While it is true that Herring may
have "beefed up" the story, Herring never said that the
Brennan submission was inadequate.
Lastly, the termination memorandum asserts that in the
period July 28 through August 8. 1980, despite the
schedule for Brennan to work from 4 p.m. to midnight,
he repeatedly arrived 30 minutes late for work and on
August 6 did not report until 4:45 p.m. The paragraph
asserts that Brennan gave no excuse for this lateness.
The evidence is disputed as to whether Brennan re-
ceived the permission of Frank and Taylor to change his
4 p.m. to midnight shift to 4:30 p.m. to 12:30 a.m. Bren-
nan testified that he had such permission from Frank and
Taylor. Frank was never called as a witness to deny it.
Taylor denied any such private or oral agreement chang-
ing starting time and ending time.
971
DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD
In any event, sometime before August 10, 1980, Martin
Weston (a nonsupervisor when he testified at the hearing
but Brennan's supervisor in the period July and August
1980) testified that he discovered that Brennan had come
in late only because Herring had told him that he had
come in late. When he questioned Brennan about it,
Brennan denied being late and told him that he was out
in the hall at that time. Sometime before August 10,
1980, Weston, as the acting city editor, made up the
schedule of work (G.C. Exh. 33) for the period August
10 to August 22. He placed Brennan's work schedule at
4:30 p.m. to 12:30 a.m. While it is unclear, especially in
view of Frank failing to appear and testify, whether
Brennan had a clear understanding with Frank and
Taylor (despite Taylor's denial) of a right to start at 4:30
p.m. and to end at 12:30 a.m., I credit Brennan rather
than Taylor.
On cross-examination, Respondent sought to elicit
from Weston (on the basis of a statement Weston gave to
the Board in the investigative stage of the case, in the
presence of counsel for Respondent) an admission that
Brennan was "unenthusiastic" and given to "idle conver-
sation." Weston, an employee still in the employ of Re-
spondent, testified that he believed that Brennan was
about as unenthusiastic as other reporters who were, and
are, in Respondent's employ and that he indulged in the
same amount of idle conversation as these present em-
ployees. In short, he was no different from any other re-
porter then in Respondent's employ. I credit this testimo-
ny.
I. Discussion and Conclusion
It is noteworthy that Leventhal was terminated on
August 13, 1980 at the same time Brennan was scheduled
for termination. Leventhal's unlawful. pretextual termina-
tion was based on a cost-cutting decision allegedly made
in or about March or April 1980, at the same time that
Brennan was given a $50-per-week raise, extraordinary in
the amount, circumstance, and timing since he received it
in spite of cost cutting which led to Leventhal's termina-
tion, after threatening, profaning, and abusing Respond-
ent's top management except the publisher in Montreal
who was apparently not readily available to be abused.
Despite Brennan's loud and abusive tone, he not only
received the raise in March but, after acting as the union
observer at the National Labor Relations Board election
on May 2, he also received the 2-week suspension on
May 21 because of alleged misconduct on May 19. It is
unnecessary to decide whether these events were causal
or merely sequential.
What stands clearly uncontradicted in this record is
that on July 25, 1980, Supervisor Frank told Brennan of
Herring's threat to discharge Brennan because of his
Guild activities notwithstanding that Frank was sup-
posed to be Herring's catpaw and refused to act the part.
What is also significant is that, immediately after Bren-
nan's 2-week suspension, Herring clearly ordered Taylor
and Frank to create a paper record of Brennan's malfea-
sance in order to form a basis to discharge him. Frank's
July 9 memorandum recommending Brennan's discharge
is obviously a false document in view of Frank's July 25
description of Brennan as a "good reporter." Frank's
July 9 memorandum is consistent with Frank's warning
to Brennan on July 25, and totally inconsistent with his
praise for Brennan's ability as a reporter.
There may be substance in some of Respondent's
seven paragraphs of Brennan's defects as an employee as
contained in its discharge memorandum (G.C. Exh. 28)
dated August 18. While most of them appear to me to be
groundless and, as Weston testified, common to all em-
ployees, and, indeed, the fabrication of a paper record
never shown to Brennan relating to his misdeeds, I do
not doubt that Brennan was not an ideal employee.
However, the Board rules establish that less than ideal
employees are protected by the Act. Similarly, harsh and
unrelenting employers are protected by the Act in their
discipline of employees provided that the discipline is not
motivated by unlawful considerations. Thus, I conclude
that while Brennan may not have been an ideal employ-
ee, Respondent's motivation in creating a basically
groundless paper record against him, documenting var-
ious acts of his alleged malfeasance, supports the explicit
threat to discharge him because of his Guild activities.
I conclude that, in view of the strong prima Jicie case
adduced by the General Counsel to show Respondent's
unlawful motivation in Brennan's discharge, Respondent
has not only failed to carry its burden of proving that it
would have discharged Brennan without reference to his
union activities, Wright Line, supra, but that, considered
as a whole, its defense regarding the Brennan discharge,
like the Shlifer and Leventhal discharges, also was a con-
coction designed to cover up its illegal motivation. I
conclude, therefore, that, as alleged in the complaint and
in violation of Section 8(a)(3) and (1) of the Act, Ter-
rance Brennan was unlawfully discharged on or about
August 13, 1980.
CONCI.USIONS O1: LAW
1. Respondent, Quebecor Group, Inc. Philadelphia
Journal Division, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Newspaper Guild of Greater Philadelphia,
Local 10, AFL-CIO-CLC, herein called the Guild, and
Local 628, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and each of them is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent is engaging in unfair labor practices in
violation of Section 8(a)(1) of the Act by threatening em-
ployees with discharge, by coercively interrogating them
with regard to their giving statements to the National
Labor Relations Board, and by threatening to close
down its newspaper if the Guild became their collective-
bargaining representative.
4. Respondent is engaging in unfair labor practices in
violation of Section 8(a)(3) and (I) of the Act by dis-
charging or failing to rehire its employees David Harris
Shlifer, Donald Leventhal, and Terrance Brennan, be-
cause of their membership in and activities in behalf of
the Guild thereby discouraging membership in the Guild.
972
QU3EECOR GROU()P. INC.
5. The unfair labor practices found herein burden com-
merce and interstate commerce within the meaning of
the Act.
Till- R Mt IIf
Since it has been found that Respondent has commit-
ted unfair labor practices within the meaning of the Act,
it will be recommended that Respondent be ordered to
cease and desist therefrom and to take certain affirmative
action to effectuate the purposes of the Act. Among the
affirmative actions will be Respondent's obligation to
offer reinstatement or reemployment to employees
Shlifer, Leventhal, and Brennan and to make them whole
by payment to them of all net backpay due them includ-
ing all benefits to which they are entitled. The reinstate-
ment will be to their old jobs (Leventhal as a handicap-
per) or, if those jobs no longer exist, to substantially
equivalent positions with all the rights and privileges, in-
cluding seniority, pertinent thereto. Loss of earnings
shall be computed as prescribed in FC W Woolworth
Company, 90 NLRB 289 (1950), plus interest as set forth
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
and Florida Steel Corporation, 231 NLRB 651 (1977).
Upon the basis of the foregoing findings of fact, con-
clusions of law,. and the entire record, and in accordance
with Section 10(c) of the Act. I hereby issue the follow-
ing recommended:
ORDER 1
The Respondent, Quebecor Group. Inc. Philadelphia
Journal Division, Philadelphia, Pennsylvania, its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with discharge, with
closedown of the paper. or any other reprisal because
they choose to be represented by, or are members or
sympathizers of, or are engaged in activities on behalf of.
the Newspaper Guild of Greater Philadelphia, Local 10,
AFL-CIO-CLC, herein called the Guild, or any other
labor organization.
(b) Coercively interrogating its employees regarding
their membership in, activities on behalf of, or sympathy
for the Guild, or for any other labor organization.
I" 11 the evenll no exceptios ;ire filed as provided by Sec 102 46 of
the Rules and Regulatio(li f the National I.abor Relatiols Board. the
findings. conclusions. and rcommended Order hereil shall. as prorided
in Sec. 10248 olf he Rules and Regulltions. be adopted h tIhe Board and
hecome It, findings, concllusionli a;nd Order, and all objhectlionr Ithreto
shall he deemed waived for all purpoes
(c) Discharging, refusing to hire or rehire, or other-
Nwise discriminating against its employees with regard to
their wages, hours, employment. or any other terms or
condition of employment because of their membership in,
sympathy for, or activities on behalf of the Guild, or any
other labor organization.
(d) In any like or related manner interfering with. re-
straining, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to David Harris Shlifer. Donald Leventhal,
and Terrance Brennan reinstatement to their old jobs as
general assignment reporters, and, in the case of Le-
venthal, sports handicapper, or, if those jobs no longer
exist, to substantially equivalent positions, discharging if
necessary employees hired or employed in their places
and terminating any and all agreements which interfere
with the reinstatement of said employees in those posi-
tions; and make each of them whole for any loss of pay
and wvages each may have suffered by virtue of Respond-
ent's discrimination against them. Backpay shall be com-
puted in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Philadelphia, Penn-
sylvania. copies of the attached notice marked "Appen-
dix." '; Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly signed
by Respondelt'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.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
t" In the eent that this Order is enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "Posted by
Order of the Natlinal Labor Relations Board" shall read "Posted Ptirsul-
ant to a Judgment of the United States Court of Appeals ['nforcinig al
Order f the Nlltional t abor Relations Hoard "
973