The Portsmouth Times

National Labor Relations Board - Board Decisions

Feb 13, 1976

222 N.L.R.B. 908 (N.L.R.B. 1976)

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomson-Brush-Moore Newspapers d/b/a The Ports-
mouth Times and Walter Van Dusen. Case
9-CA-9250
February 13, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
newspaper in Portsmouth, Ohio. In the conduct of its busi-
ness operation, Respondent has an annual gross volume of
business of $200,000, and publishes nationally syndicated
features and advertises nationally sold products. During
the 12 months preceding the issuance of the complaint,
Respondent received a direct inflow of materials, valued in
excess of $50,000, from points outside the State of Ohio.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
On October 30, 1975, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions to the Administrative Law Judge's Decision
and a brief in support thereof, and the Respondent
filed an answering 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, findings, and
conclusion of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: Based on a
charge filed on March 28, 1975, a complaint issued in this
case on May 15, 1975, and a hearing was held in Ports-
mouth, Ohio, on July 1, 1975. The issue presented is wheth-
er Respondent discharged Walter Van Dusen in violation
of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended.
Upon the entire record and my observation of the de-
meanor of the witnesses, and having given careful consid-
eration to the briefs filed by General Counsel and Respon-
dent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent , a Delaware corporation, publishes a daily
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Portsmouth Typographical Union,
Local No. 637, International Typographical Union, AFL-
CIO, has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Relevant Facts
Walter Van Dusen, a man in his early twenties, was
hired as Respondent's sports editor on July 23, 1973. On
February 12, 1975, he was discharged, the assigned reason
for discharge being "chronic lateness."
Van Dusen's job required him to begin work at 6:30
a.m.' The newspaper's production schedule provided that
sports pages were the first to be made up, by the sports
editor; they would then be sent to the composing room and
finally to the pressroom. Other material would then follow,
according to the schedule. If Van Dusen did not arrive on
time, of course, some other member of the staff (who ar-
rived perhaps an hour later) would be required to attend to
the preparation of the sports pages, and there might poten-
tially be consequent delays along the line, not only because
the other staff member was deterred from his own duties,
but also because the sports copy might arrive late in the
composing room.
The following description of Van Dusen's history of tar-
diness is based primarily on the testimony of Editor
George Stowell, Publisher Robert Carl, and Managing Edi-
tor Everette Parker, all of whom appeared to have a better
recollection of the facts (although Van Dusen's testimony
does not differ radically).
On September 3, 1974, Van Dusen was 1 hour and 40
minutes late in arriving at the newsroom. Editor Stowell
put the sports pages together and then admonished Van
Dusen, who said he had "overslept." 2 On the following
day, September 4, he was 45 minutes late, and Editor Sto-
well told him inter alia, that if he could not arrive prompt-
ly, Respondent would have to get someone who could .3 On
1 He shared this starting time only with the wire editor; all of the other
newsroom employees began work about 8 a in. The editor of the paper,
George Stowell, generally arrived between 7-7.30 a in., and the managing
editor, Everette Parker, about 7 30
2 On direct, Van Dusen denied that Stowell had said anything to him, but
he testified on cross that Stowell "may have" spoken to him.
3 Van Dusen initially testified that Stowell told him "more or less just sort
of be careful about this," but conceded, on cross, that Stowell had also
emphasized the importance of the sports editor being on time.
222 NLRB No. 150
PORTSMOUTH TIMES 909
September 4, Stowell also discussed Van Dusen's situation
with Publisher Robert Carl, who told him to chastise Van
Dusen.
Van Dusen again overslept on December 3; Parker
called him at home, and Van Dusen got to the office about
I hour and 15 minutes late. Stowell was out of town that
day, but was told the following day by Managing Editor
Parker that Van Dusen had been late. Stowell spoke to Van
Dusen and told him that "we could not tolerate lateness
... and if he could not come in on time, we would have to
get a replacement for him." 4
On December 21, Van Dusen was nearly 2 hours late.
When he arrived, Parker offered to call Van Dusen at 5:30
each morning; Van Dusen said "no way." Stowell was on
vacation. Parker, on December 21, brought the incident to
the attention of Publisher Carl. Parker also informed Carl
of Van Dusen's "no way" response to Parker's offer to call
Van Dusen at 5:30 each morning. Carl told Parker to "ig-
nore the situation on December 21st hoping that -it would
not happen again, that Mr. Van Dusen had been warned
that he wasn't to be late, but we would hope that it
wouldn't happen again." -
When Stowell returned from vacation on January 1,
1975; Parker informed him that Van Dusen had been late
on December 21, that Parker had assumed the burden of
the sports desk that day, and that he had spoken to Carl
about Van Dusen's tardiness. On January 1, Carl discussed
the Van Dusen problem with Stowell, referred to the-warn-
ings Van Dusen had received in the past, expressed some
hope for "salvaging" Van Dusen, but also told Stowell that
"if it did occur again that I would feel termination would
be necessary." Stowell concurred. Stowell spoke to Van
Dusen about his record, but did not specifically warn him
that his next tardiness would result in discharge.5
On February 12, Van Dusen overslept again and arrived
at work about 8:05 a.m. Stowell, Parker, and a deskman
had put the sports pages together. When Van Dusen ar-
rived, Stowell told him that it would be necessary to take
some action against him, either suspension or termination.
Carl was in Chicago. Stowell called him there, notified him
of this most recent tardiness, and asked Carl for instruc-
tions. Carl ordered that Van Dusen be terminated, with 2
weeks severance pay. The order was executed.
Richard Ralston, a general assignment reporter, was
named to the position of sports editor. He was trained for
the job for about a week by another staff member, Chris
Chamis, who served as sports editor until Ralston took
over the job. The day after Ralston became sports editor,
he was 2 hours late to work. Stowell called him into his
office and gave him a warning. Ralston testified, without
contradiction, that Carl also approached him that day and
"told me that he couldn't keep from laughing" when he
heard that Ralston had been late, in view of Van Dusen's
discharge for that reason. Carl further told Ralston "not to
' Van Dusen admitted, on cross-examination, that Stowell "said at that
time that it was getting to be too much, and they needed someone they
could depend upon, and if I couldn't do the job, they'd have to find some-
one who could."
5 Van Dusen testified -that "to his recollection," Stowell did not speak to
him about the December 21 lateness. I think it likely that Stowell would
have discussed the matter with Van Dusen, given the existing history
worry about it, that it could happen to anyone." About a
month later, however, Ralston was 50 minutes late one
morning, and- Stowell told him that he wanted Ralston "to
get on the ball and be on time" and "gave me another pitch
about someone he could count on." A day or two later,
Stowell presented Ralston with a letter of reprimand,
threatening that continued tardiness could "result in seri-
ous personal consequences."
No replacement has been hired to fill the vacancy in the
newsroom caused by Van Dusen's'departure. Carl testified
that he interviewed an applicant, but then decided, because
of the economic situation in the community, that retrench-
ment was in order. -
Respondent had no published or announced disciplinary
policy on lateness. Three witnesses testified that they had
never known of any employee being discharged by Re-
spondent for tardiness in the past 25 or 30 years. Compos-
ing room employee Eugene Hughes could recall no dis-
charges for lateness in his 18 years of employment.
Employee Billy Graham vaguely referred to "many" em-
ployees who had been consistently late, without conse-
quence, but could name only one; the most recent delin-
quency pattern of this sort to which Graham referred had
occurred about 10 years before, some 7 years before Carl
became the publisher. Reporter Robert Bass could recall
no discharges for tardiness in his 24 years of employment
with Respondent; on the other hand, he noted that he him-
self had been late no more than 15-20 minutes on "several
occasions" in those 24 years, and once, "perhaps five years
ago," when he was 35-40 minutes late, after having worked
late the previous night, he had gone to Stowell and ex-
plained the tardiness to him. Editor Stowell credibly testi-
fied for the Respondent that, in his 18 years with the news-
paper, no employee had matched Van Dusen's record of
tardiness.
In April 1974, Portsmouth Typographical Union, -Local
No. 637, International Typographical Union, AFL-CIO,
which has long represented Respondent's composing and
mailroom employees,6 had been certified as the bargaining
agent of Respondent's 12 newsroom employees. Contract
negotiations had begun in June. An International represen-
tative was the principal union spokesman, but he an-
nounced that Van Dusen would be in charge of the six-
man union negotiating committee in the absence of an In-
ternational representative. Van Dusen testified that he had
played no active role in organizing the newsroom, although
he had assisted in a pending I.T.U. campaign among
Respondent's bookkeeping, advertising, and circulation
employees .7 It is also clear, based upon Van Dusen 's testi-
mony and his demeanor at the hearing, that, although he
occasionally served as the committee chairman, Van Du-
sen was not the primary spokesman for the union side dur-
mg negotiations, nor had he engaged in any hostile con-
frontations with management during the bargaining.
Throughout the contract talks, Respondent had been
proposing a clause which would permit it to discipline em-
6 The Union's representation of the mailroom employees began in 1963,
and of the composing room employees in 1967
7 There is no evidence that the assistance-visiting the homes of pros-
pective voters-was known to Respondent . A second representation elec-
tion in this unit was held on February 5, 1975
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees by suspension as well as discharge; the Union had
steadfastly resisted, apparently taking the position that ter-
mination should be the only permissible form of discipline.
This issue was among the points discussed at a bargaining
session held about a week before Van Dusen's discharge on
February 12.8
After Van Dusen was discharged, two employees dis-
cussed Van Dusen's plight with Carl, and there is some
facial conflict between their testimony and- Carl's. Billy
`Graham testified that he told Carl that this would be a
good time for him to try out Respondent's proposed sus-
pension technique, suggesting that Van Dusen's discharge
be converted to a short term suspension. According to Gra-
ham,--Carl said,,"IWe] can't do that because I'm going to
use him as an example." 9 Graham also conceded that, dur-
ing this conversation, Carl said in effect that, even if they
were- then operating under a clause which permitted sus-
pension, he believed that termination was nonetheless war-
ranted in Van Dusen's case.
. Floyd McGraw, then president of Local 637, also sug-
gested to Carl that Van Dusen merely be given a suspen-
sion, in line with Carl's contract proposal. According to
McGraw, Carl said "he was usinglVan Dusen] as an exam-
ple, and he felt he had been late, you know, too many
times."
Carl testified that he told Graham and McGraw (and, as
well, Jim White, an ITU International representative) that
the paper ",needed more than a part-time sports editor";
that he considered Van Dusen's record "too gross a viola-
tion to even consider suspension"; and that he discussed
"the fact that I had something over 100 employees who
were well aware of what had taken place in the newsroom
and that I could hardly be-hardly expect those employees
to report for work on time if I failed to act on a gross
violation of this type." He expressly denied saying that he
wanted to use Van Dusen "as an example."
B. Concluding Findings
The complaint alleges that Van Dusen was discharged
"because of his activities on behalf of and sympathy for the
Union, and in order to discourage membership in the
Union." In his brief, however, General Counsel does not
argue that the discharge of Van Dusen was a reprisal for
any "activities" by Van Dusen on behalf of the Union. He
contends , rather, that the discharge was intended to be an
"example" to the union negotiating committee in order to
convince it to accept the proposed contractual clause
which would have permitted Respondent to impose the
lesser discipline of suspension ("Van Dusen was used as an
example to demonstrate to the Union why it should accept
Respondent's suspension proposal," G.C. br., p. 5).
8 According to employee Billy Graham, the Union's opposition to a sus-
pension alternative was that such discipline was "unprofessional." Floyd
McGraw, the former president of Local 637, contrarily testified that the
Union objected to the clause because, as drafted, it provided that suspen-
sions would not be subject to the grievance procedure.
9 Graham further testified that, subsequent to Van Dusen's discharge, the
Union continued to be adamantly opposed to a clause which would permit
the lesser discipline of suspension
In addition to arguing that Respondent was not so moti-
vated, Respondent also apparently asserts, arguendo, that
discrimination of such a character would not, in law, vio-
late Section 8(a)(3) of the Act, although it seems to concede
that such conduct might constitute a violation of Section
8(a)(1). I need not reach these issues since I cannot discern,
on this record, sufficient evidentiary support for the
claimed motivation. -
There seems to be no question that Van Dusen's tardi-
ness on five occasions between September 1974 and Febru-
ary 1975 was unprecedented, in both incidence and dura-
tion, in the history of the newsroom. Van Dusen offered his
employer only the excuse of having overslept. The produc-
tion scheduling in the newsroom required that Van
Dusen's work function be accomplished first, and his fail-
ure to perform his duties at the scheduled time posed a
threat to the production flow and required other employees
to divert their attention from their own duties in order to
undertake his. -
I have credited Editor Stowell's testimony, very nearly
admitted by Van Dusen, that, when Van Dusen was late on
September 4, after his tardiness of September 3, Stowell
told him that if he could not commence work on time, "we
would have to get somebody that could get in at the proper
time." Van Dusen himself conceded that, after his third
tardiness, of nearly 2 hours, on December- 3, Stowell told
him that "it was getting to be too much, and they needed
someone they could depend upon, and if I couldn't do the
job they'd have to find someone who could." Thus, at a
time when Respondent was unable to predict that Van Du-
sen would continue to place himself in a position where he
might reasonably be exposed to severe discipline, at a time
when Van Dusen's destiny was in his own hands, Stowell
was already concededly putting him on fair notice that, if
he did not mend his ways, he might be discharged.
Upon Van Dusen's next absence, again of 2 hours'
length, on December 21, Stowell once more warned him
about his pattern of absence. The fact that Stowell did not
expessly tell Van Dusen that he would be discharged in the
event of one more instance of tardiness does not seem par-
ticularly significant. In the post-January I discussion, Sto-
well did tell Van Dusen, for the third time, that continued
lateness would lead to replacement. Having made this
point three times, it might be presumed that the last warn-
ing would carry a certain inescapable impact. In addition,
it seems clear that Carl's January 1 remark to Stowell
about the possibility of termination, in discussing Van
Dusen's December 21 absence, was not uttered as an irre-
versible declaration of intent; this is indicated by the facts
that Stowell admittedly told Van Dusen on February 12
that he would have to take "either suspension or dis-
charge" action against him, and that Stowell thereupon
called Carl to "see what his thinking was on this situation."
It is further unclear in the record whether, in fact, Stowell
delivered his January 1 warning to Van Dusen before or
after his discussion with Carl in which the possibility of
termination was mentioned; although Stowell appeared-to
testify that it had been after the discussion with Carl, his
memory on this point seemed muddled.
Thus, when Van Dusen arrived 1- 1/2 hours late on Feb-
ruary 12, he had been clearly warned three times that his
PORTSMOUTH TIMES 911
job was in peril.10 Considering the nature of that job, I can
scarcely say the fifth decidedly lengthy, instance of tardi-
ness in a 5-month period, after three warnings that the
employee was putting his job in jeopardy, constituted such
a nebulous ground-for discharge as to give rise to a permis-
sible inference of unlawful intent, despite the absence of
any evidence that Van Dusen's latenesses caused a delay in
getting the paper out.I I Nor is there any evidence worthy of
discussion that the treatment of Van Dusen deviated from
past practice. The General Counsel failed to adduce any
cogent evidence that there had been similar employee dere-
lictions in the past, particularly since Carl had become the
publisher, which had received lesser or no discipline; and
there was no evidence at all as to whether other forms of
employee misconduct had been punished by discipline less
strict than discharge.
The only direct evidence in support of General Counsel's
theory that Van Dusen's discharge was intended as an ob-
ject lesson to inspire the Union to agree to Respondent's
contractual demand for the right to suspend as well as dis-
charge is the testimony of employee Graham and McGraw
that Carl had said, in refusing to moderate Van Dusen's
punishment, that he wanted "to make an example" of Van
Dusen. Carl denied using those precise words. Graham and
McGraw did not strike me as dishonest witnesses, and nei-
ther did Carl. It seems possible that Carl might have used
those words, but most likely, I think, as a shorthand way of
expressing the thought that Carl says he conveyed to Gra-
ham and McGraw-that "I'm responsible for well over a
hundred employees, and that I must maintain discipline
with them, and if I expect people to come to work on time,
whether they're union employees or nonumon employees, I
have to act on a gross violation of this kind."
The "example" Carl intended to set, in other words, was
a demonstration that employees could not expect to be
indulged in what Carl considered to be a "gross violation"
of their employment duties, rather than an "example" of
the value of a contract clause which contemplated a lesser
degree of discipline than termination. McGraw's testimony
indicates that the foregoing was the thrust of Carl's expla-
nation to him: "And finally he did tell me that he was
10 I find nothing sinister in the fact that Stowell told an employee on that
morning, about 7:30, not to bother calling Van Dusen at home, on the
ground that he would take care of it As he testified, he knew at the time
that he would have to take action against Van Dusen, and "in the heat
of getting the sports pages out, I probably hadn't determined what course I
would take."
11 While there may have been no important delays in the production
schedule, Van Dusen's tardiness undoubtedly imposed a burden on the
other employees who had to perform his work as well as their own, and
might well have affected the quality of their work.
General Counsel argues that, because Respondent had been expenenc-
ing no problem with tardiness among the other employees, it had no need to
set an "example" of the consequences of continued lateness But the "exam-
ple" was not necessarily, in Carl's mind, limited to the effects of tardiness;
as he put it to International Representative White, he "could hardly expect
[the other employees] to respond to discipline if I failed to take action on a
gross violation of this type." Furthermore, the wisdom or unwisdom of an
employer's personnel policy, standing alone, is not a matter on which the
Board may sit in judgment.
using him as an example, an4 he felt he had been late, you
knows too many times." iz
Apart from the relevant evidence, I- should note that
there is a certain illogical element in General Counsel's
theory which militates against finding the asserted motiva-
tion. The record makes plain -that Respondent was not en-
thralled by the organization of its newsroom employees.
When Van Dusen was discharged in February, the parties
had been in negotiations for 9 months, and they still had
not reached an agreement as of July 1, 1975, the date of the
hearing. Underlying the argument advanced by General
Counsel-that "Van Dusen was used as an example to
demonstrate to the Union why it should accept
Respondent's suspension clause proposal"-must be an as-
sumption that Respondent was so anxious to reach agree-
ment on a collective-bargaining contract that it was willing
to discharge an otherwise "adequate" employee to win the
Union's acquiescence in, and thus resolve, one of the issues
in dispute at the bargaining table (and at the same time run
the risk of potential litigation, surely recognized by Carl, a
veteran of 30 years of dealing with unions, which might be
engendered by discharging a member of the union negoti-
ating committee). I consider the assumption to be a doubt-
ful one.13
All things considered, I do not find that the evidence
preponderates in favor of General Counsel's contention
that Van Dusen was discharged "to demonstrate to the
Union the benefits of allowing Respondent to suspend
rather than discharge employees." 14 And, although Gener-
al Counsel does not argue the point, I also conclude that
the evidence does not warrant a finding of violation on a
more conventional theory, such as that Van Dusen was
discharged for his activities on behalf of the Union or in
reprisal for the Union's opposition to a proposal advanced
by Respondent. Accordingly, I shall recommend dismissal
of the complaint.
CONCLUSIONS OF LAW
1. Respondent Thomson-Brush-Moore Newspapers
d/b/a The Portsmouth Times, Portsmouth, Ohio, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
13 On the other hand, I do not rely upon Respondent's argument that "[ilf
Carl was seeking to use Van Dusen's discharge as a tool to gain inclusion of
a suspension clause in the agreement the parties were negotiating, why
would not Carl have sought to bargain Van Dusen 's reinstatement for such
language:' In another context, Respondent argues that Carl, "a man with 30
years of experience in dealing with unions," would never have told employ-
ees that he intended to "make an example out of Van Dusen." Because of
that selfsame experience , it seems improbable that Carl would consider
openly linking Van Dusen's discharge to the negotiations by suggesting a
trade-off.
14 General Counsel's theory, and at least one of his witnesses, seem to
assume that a suspension , although not a discharge, would have been in
order here. General Counsel's brief does not address the remedial problem
which might conceivably be involved were a violation to be found
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. General Counsel has not established by a preponder-
ance of the evidence that Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the Act as alleged in the complaint.
Upon the basis of the foregoing findings of fact and con-
clusions of law, I hereby issue the following recommended:
ORDER15
The complaint is hereby dismissed.
15 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.