Times-Herald Record

National Labor Relations Board - Board Decisions

Jun 26, 2001

334 N.L.R.B. 350 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
Orange County Publications, an Unincorporated Di-
vision of Ottoway Newspaper, Inc., d/b/a The
Times-Herald Record and Communications
Workers of America, Local 1120, AFL–CIO.
Cases 34–CA–8304 and 34–CA–8517
June 26, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEB-
MAN
AND WALSH
On June 29, 1999, Administrative Law Judge Michael
A. Marcionese issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs, and the Respondent filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
On February 2, 1998,1 the Union filed a petition seek-
ing to represent the Respondent’s drivers. On March 21,
the Respondent’s publisher, James Moss, met with the
drivers to present the Respondent’s position concerning
union representation for the drivers. At that meeting,
which was tape recorded by an employee, Moss spoke at
length about the possible consequences of unionization.
Among other things, Moss told the drivers that the Re-
spondent was smart enough to know that if it gave the
Union more than it gave its unrepresented employees it
would be making the case for the Respondent to organize
the whole Company.
Moss also commented about the Union’s tactics in
pressuring the Respondent in support of its demands,
including the Union’s supposed use of sick outs. Moss
urged the drivers as follows:

Let’s work together to make this company
stronger, not let’s find a way to fight with one an-
other and make the company weaker.
That is what it ends up being. Let’s do some
stuff to try and weaken the company. And if that is
what you want to do, ultimately, you have to realize
that all of that stuff is going to have a negative im-
pact on the company.
If we need to, right now there could be a less ex-
pensive way to deliver the Times-Herald Record
than the distribution system that we’ve got. We have
never availed ourselves of those other mechanisms.
We have out front looked for ways to keep our costs
under control, and where there was not a need for
full-time drivers. The window for our distribution is
between twelve o’clock and four o’clock. That is
when the papers come off the press. Those are not
eight hour jobs, yet we have done some things for
some body of jobs that we have. We have done
some things on the front end and the back end to try
to stretch the jobs into full-time, but we cannot do
that for every job. But what we have tried to do is
keep people employed on a full-time basis where it
made economic sense. Where it doesn’t, we cannot
do that and we won’t do that, even with a union.

1 Unless otherwise noted, all dates are in 1998.

Despite these comments, Moss admitted at the hearing that
preserving full-time driver positions made economic sense
at the time of his March captive audience speech.
Pursuant to a Decision and Direction of Election, from
March 25 to April 6 a mail-ballot election was held
among the Respondent’s drivers. The tally of ballots
showed 45 against and 14 for representation. The Union
filed objections asserting that Moss’ statements set forth
above threatened employees with loss of full-time work
and lesser wages and benefits than nonunion employees,
if they voted for the Union.2 On September 8, while the
objections were pending before the Board, the Respon-
dent announced that, pursuant to a companywide restruc-
turing initiative, it was restructuring its delivery opera-
tions by, among other things, eliminating the full-time
driver classification.
The judge found that the Respondent violated Section
8(a)(1) by threatening employees that they would receive
less benefits than nonunion employees if they voted in
favor of union representation. The judge also found that
the Respondent did not violate Section 8(a)(3) and (1) by
restructuring its delivery operations, and that Moss’
statement about the Respondent’s distribution system, set
forth above, did not violate Section 8(a)(1). According
to the judge, this statement, read in context, was a truth-
ful description of the collective-bargaining process and
the potential impact of unionization on the Respondent’s
practice of stretching part-time jobs into 8-hour jobs in
order to keep the drivers employed full time. The judge
stressed that Moss’ prediction that the Respondent would
not continue this practice if it did not make economic
2 On September 29, the Board issued an unpublished decision sus-
taining the Union’s objections and setting aside the election. In a sec-
ond election held on November 12, a majority voted in favor of the
Union, and it was certified as the representative of the Respondent’s
drivers on November 18. On May 11, 1999, the Board issued a Deci-
sion and Order in Times-Herald Record, 328 NLRB 404, finding that
the Respondent had violated Sec. 8(a)(5) and (1) by refusing to bargain
with the Union.
334 NLRB No. 48
TIMES-HERALD RECORD 351
sense to do so was not a threat of reprisal that would be
taken by the Respondent of its own volition but was in-
stead predicated on economics, including the economics
of dealing with a union.
The judge acknowledged that the Board had previously
found that the same statement constituted objectionable
conduct in its September 29 Decision and Direction of
Second Election. However, the judge discounted the
significance of this finding on the grounds that the Board
applies a different standard to election objections than it
does to unfair labor practices, so that conduct may be
objectionable even if it does not constitute an unfair la-
bor practice.3 The judge also concluded that this state-
ment was “close to the edge of permissible speech, as
evidenced by the split on the Board panel.”4
Contrary to the judge, we find that Moss’ statement,
even when viewed in context, constituted an unlawful
threat of reprisal and therefore violated Section 8(a)(1).5
By linking a possible change in the distribution system,
including the loss of full-time positions, to unionization,
and the Union’s attempts to exert pressure on the Re-
spondent, Moss implicitly threatened employees with

3 The judge cited ADIA Personnel Services, 322 NLRB 994 (1997).
4 Former Member Brame, dissenting, would have found that the Re-
spondent had not engaged in objectionable conduct. See Times-Herald
Record, supra at 406.
5 For the reasons stated in the judge’s decision, we adopt his finding
that the Respondent violated Sec. 8(a)(1) by threatening employees that
they would receive lesser benefits than its nonunion employees if they
voted in favor of the Union.
Despite our finding, for the reasons set forth below, that the Respon-
dent unlawfully threatened to change its distribution system in reprisal
for its drivers’ union activities, we nevertheless find, in agreement with
the judge, that even assuming arguendo that the General Counsel estab-
lished a prima facie case that the Respondent’s restructuring of its
delivery operations was motivated by antiunion animus, the Respon-
dent established that it would have taken the same action even in the
absence of its employees’ union activity. Thus, we also adopt his dis-
missal of the allegation that the restructuring of the distribution depart-
ment, in September, violated Sec. 8(a)(3) and (1). In these circum-
stances, we find it unnecessary to pass on the judge’s finding that the
General Counsel did not establish that the drivers’ union activity was a
motivating factor in the reorganization and the elimination of the full-
time driver classification.
Our conclusion that the Respondent unlawfully threatened employ-
ees with job loss in the course of Moss’ March 21 speech is consistent
with the Board’s prior decision holding that this same statement, to-
gether with Moss’ unlawful threat of lesser benefits, constituted objec-
tionable conduct affecting the outcome of the first election. Accord-
ingly, we find it unnecessary to pass on the judge’s discussion of the
standards under which the Board will evaluate alleged threats such as
those at issue in this case in representation and unfair labor practice
cases, respectively. However, we disavow any implication in the
judge’s decision that the existence of a dissent in the Board’s prior
decision in any way indicates that Moss’ unlawful statements were
“close to the edge.”
loss of their jobs if they voted in favor of the Union.6
This linkage is especially clear in light of Moss’ state-
ment that the Respondent’s options, “right now,” in-
cluded changing its distribution system and his admis-
sion that, at the time he made this statement, preserving
full-time driver positions made economic sense. In these
circumstances, we find that Moss was not describing the
Respondent’s past practices, as the Respondent claims,
nor was he making a lawful prediction of the economic
consequences of unionization “on the basis of objective
fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control or to convey a
management decision already arrived at to close the plant
in the event of unionization.”7 Rather, Moss was at least
implicitly threatening the drivers that, solely on the basis
of unionization, the Respondent would cease its past
practice of finding work for drivers so they could main-
tain their full-time status.
Our dissenting colleague asserts that Moss’ statement
was no more than a statement of economic reality, i.e.,
that any decision it made regarding the elimination of
full-time driver positions would be governed by what
made economic sense and not by whether its employees
chose to be unionized. In reaching this conclusion, the
dissent fails to fully consider the context in which the
statement was made. As set forth above, Moss men-
tioned eliminating the full-time positions in the context
of his discussion of the impact of the Union’s efforts to
weaken the Respondent economically. Moss identified
changing the distribution system as an option available to
the Respondent “right now,” even though by Moss’ own
admission preserving the full-time driver positions made
economic sense at that time. Moreover, our colleague
agrees that these remarks were made in the course of the
same speech in which Moss unlawfully threatened em-
ployees that they would receive less benefits than nonun-
ion employees if they voted in favor of union representa-
tion. In these circumstances, we do not agree that Moss’
statement concerning the distribution system was permis-
sible speech protected by Section 8(c).8 Accordingly, we
6 See, e.g., MK Railway Corp., 319 NLRB 337, 341–342 (1995)
(employer violated Sec. 8(a)(1) by telling employees that if union came
in he would have to look at option of diverting work to Mexico); MPG
Transport, 315 NLRB 489, 490 (1994), enfd. mem. 91 F.3d 144 (6th
Cir. 1996) (statement that “I can’t live with a union contract. I’ll either
close the place down or cancel the trucks, or bring in outsiders and do
away with [employer’s] drivers” violated Sec. 8(a)(1)); Brunswick
Corp., 282 NLRB 794 (1987) (employer’s rhetorical question to em-
ployees, “what would stop [the employer] from picking up and moving
down to Mexico if the union did get in this plant here?” violated Sec.
8(a)(1)).
7 NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
8 See, e.g., Quamco, Inc., 325 NLRB 222–225 (1997) (employer’s
“UAW wall of shame,” listing other UAW-represented plants that had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
find that the Respondent, by threatening its drivers with
the loss of full-time work, has violated Section 8(a)(1) as
alleged in the complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2.
“2. By threatening employees with loss of jobs if they
selected the Union to be their collective-bargaining rep-
resentative, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent, Orange
County Publications, an unincorporated division of Ot-
toway Newspapers, Inc., d/b/a the Times-Herald Record,
Middletown, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph.
“(b) Threatening employees with loss of jobs if they
selected Communications Workers of America, Local
1120, AFL–CIO, or any other labor organization, to be
their collective-bargaining representative.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I agree with the judge’s
finding that the Respondent’s publisher, James Moss, in
remarks to assembled employees, did not violate Section
8(a)(1). In my view, his speech was protected by Section
8(c).
Moss explained that the jobs were basically 4-hour
jobs. He said that the past practice was to stretch part-
time jobs into full-time jobs in order to keep the drivers
employed full time. He acknowledged that, “right now,”
there were less expensive ways to do the work, i.e., con-
vert to part-time. However, he said that he would con-
tinue to do this if “it made economic sense.” If it did not
make economic sense, he would not do it, “even with a
union.”
The quoted phrase “even with a union,” was not tan-
tamount to saying that Respondent would reduce to part-
time if there were a union. Rather, Moss was saying that
any reduction would be because of business considera-

closed and including “tombstone” with employer’s name and a question
mark, and its letter equating vote for union with a vote for job insecu-
rity, violated Sec. 8(a)(1)).
tions and that the presence of a union would not change
that, one way or the other.
My colleagues mischaracterize Moss’ speech. Moss
stated that, “right now,” there were less expensive ways
to deliver the newspaper. Moss did not say that, “right
now,” there was an option to make a change. To the con-
trary, he said that he intended to retain the current system
if that were economically feasible. If it were not, he
would have to change, irrespective of union presence.
Further, although the Respondent also uttered an
8(a)(1) threat in the same speech, that threat did not per-
tain to the future existence of jobs. Thus, the threat did
not taint the otherwise lawful statements set forth above.
Based on the above, I conclude that the statement was
not a threat of retaliatory action, but rather a statement of
economic reality which would not be altered because of
the presence or absence of a union.
Each of the cases relied on by the majority for its posi-
tion involve threats of adverse consequences directly
linked to unionization. Thus, in MK Railroad Corp., 319
NLRB 337 (1995), the employer threatened that “if the
union came in [it] would have to look at one of its other
options,” specifically including “diverting work to Mex-
ico.” In MPG Transport, 315 NLRB 489 (1994), the
employer stated that “I can’t live with a union contract.
I’ll either close the place down or cancel the trucks, or
bring in outsiders and do away with [employer’s] driv-
ers.” Similarly in Brunswick Corp., 282 NLRB 794
(1987), the employer’s rhetorical question (“What would
stop [the company] from picking up and moving to Mex-
ico if the union did get it the plant?”) conveyed the clear
implication that the employer would decide whether to
relocate outside the country solely on the basis of the
union’s success or failure at organizing its employees.
Unlike any of threats cited in the cases relied on by the
majority, the Respondent told employees that any deci-
sion it made would be governed by what made “eco-
nomic sense” and not by whether its employees chose to
be unionized. Accordingly, I find that the Moss state-
ment is permissible speech protected by Section 8(c), and
I would dismiss the 8(a)(1) complaint allegation.1
1 I recognize that the Board has found the statement to be objection-
able. 328 NLRB 404. However, the fact that a statement is objection-
able does not establish that it is an unfair labor practice.
TIMES-HERALD RECORD 353
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten you by telling you that you
will receive less benefits than nonunion employees if you
select Communications Workers of America, Local
1120, AFL–CIO, or any other labor organization, to be
your collective-bargaining representative.
WE WILL NOT threaten you with loss of jobs if you
select Communications Workers of America, Local
1120, AFL–CIO, or any other labor organization, to be
your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

ORANGE COUNTY PUBLICATIONS, AN
UNIN-CORPORATED DIVISION OF OT-
TOWAY NEWS-PAPERS, INC., D/B/A THE
TIMES-HERALD RECORD

Darryl Hale, Esq., for the General Counsel.
Richard A. Perras, Esq. (Edwards & Angell, LLP), for the Re-
spondent.
Jerry Ebert, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge.
This case was tried in Goshen, New York, on March 1 and 2,
1999. The Communications Workers of America, Local 1120,
AFL–CIO (the Union) filed the charge in Case 34–CA–8304 on
March 31 and amended it on November 20, 1998, and filed the
charge in Case 34–CA–8517 on September 8, 1998.1 Based on
the charges, as amended, an order consolidating cases, consoli-
dated complaint and notice of hearing issued on November 23.
The consolidated complaint alleges, inter alia, that Orange

1 All dates are in 1998 unless otherwise indicated.
County Publications, an unincorporated division of Ottoway
Newspaper, Inc., d/b/a Times-Herald Record (the Respondent
or THR) violated Section 8(a)(1) of the Act, on March 21,
through statements made by its president and publisher, James
A. Moss, at a meeting with employees shortly before a mail-
ballot representation election began. The consolidated com-
plaint further alleges that the Respondent violated Section
8(a)(3) and (1) of the Act, since September 8, by announcing
and implementing a reorganization of its distribution depart-
ment which resulted in the elimination of all full-time driver
positions. The Respondent filed its answer to the consolidated
complaint on December 4, admitting that it made changes in its
distribution department, but denying any unlawful motivation,
and denying that it violated Section 8(a)(1) of the Act through
Moss’ statements.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an unincorporated division of a corpora-
tion, engaged in the publication and circulation of a daily com-
munity newspaper from its facilities in Middletown, New York.
The Respondent annually purchases and receives at its New
York facility goods valued in excess of $50,000 directly from
points located outside the State of New York, subscribes to
interstate news services, and derives gross revenues in excess
of $200,000 a year. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
For many years, the Union has represented a unit of ap-
proximately 100 reporters, photographers, copy desk editors,
research staff, and editorial assistants employed by the Respon-
dent. The Respondent’s bulk delivery drivers, employed in the
distribution department, have historically been unrepresented.
Beginning about September 30, 1997, the Union attempted to
organize this group of employees. On that date, approximately
seven drivers attended the first meeting with the Union’s orga-
nizing director, Jerry Ebert. All but one were full-time drivers.
Ebert continued to solicit support for the Union among the
Respondent’s full-time and part-time drivers, by standing out-
side the Respondent’s facility to talk to the drivers as they ar-
rived for work and left to deliver the paper, and by holding
meetings. An organizing committee consisting ultimately of 12
drivers was formed. All but one member of this committee
were full-time employees. Ebert testified that the full-time
drivers formed the core base of support for the Union through-
out the campaign. John Stroppel, a part-time driver who signed
the initial petition and joined the organizing committee, testi-
fied that many part-time drivers also supported the Union be-
cause the Union campaigned on a promise of more full-time
equivalent benefits for them. There were approximately 62
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
drivers employed during the campaign, of which 27 were full-
time employees.
On February 2, the Union filed a petition with the Board
seeking to represent the Respondent’s drivers. Pursuant to a
Decision and Direction of Election, a mail-ballot election was
conducted from March 25 to April 6. The Union lost the elec-
tion, by a 45 to 14 vote, and filed objections on April 14. A
hearing on objections was held on June 4 and the hearing offi-
cer issued her report and recommendation on July 21. On Sep-
tember 29, a majority of the Board’s three-member panel
adopted the hearing officer’s findings and recommendations,
including the recommendation that a new election be held. The
Respondent’s conduct that was found objectionable by the
hearing officer and two members of the Board is the same con-
duct alleged to violate Section 8(a)(1) of the Act here. The
second election was conducted on November 10, resulting in a
union victory and certification as the Section 9(a) representa-
tive of the Respondent’s drivers on November 18. The Re-
spondent thereafter refused to recognize and bargain with the
Union, challenging the validity of the certification. On May 11,
1999, the Board issued an Order, in response to a Motion for
Summary Judgment, requiring the Respondent to recognize and
bargain with the Union. Again, a majority of the Board re-
affirmed its earlier decision ordering a new election on the
basis of the conduct alleged as objectionable in the representa-
tion case and as unlawful here.2 Times-Herald Record, 328
NLRB 404 (1999).
There is no dispute that, on September 8, while exceptions to
the hearing officer’s report were pending before the Board, the
Respondent announced a restructuring of its newspaper distri-
bution system which, inter alia, eliminated the full-time driver
classification. The plan was implemented on October 2. The
General Counsel alleges that the Respondent made these
changes to retaliate against the full-time drivers who were the
main supporters of the Union. The Respondent argues that the
changes were dictated by its corporate parent as part of a cost
reduction plan affecting every department and were not moti-
vated by any union activity on the part of the drivers.
A. The March 21 Meeting
Prior to the first election, the Respondent held a series of
meetings with the drivers at which its president and publisher,
James Moss, spoke about the Union. John Benson, a veteran
driver and leading union activist, attended one of these meet-
ings, on March 21, and surreptitiously tape-recorded the meet-
ing. According to Benson, the meeting lasted about 2-1/2
hours. There were approximately 22 drivers at the meeting,
about half of whom were full-time drivers. At the hearing, I
received into evidence, over the Respondent’s objections, the
original tape and a transcript of it that was prepared for the
Union by a court reporting service. The same tape and tran-
script had also been admitted into evidence at the objections
hearing. The Board has found such tape recordings of employer

2 Member Brame dissented from the direction of a second election
and the bargaining order on the basis that the Respondent’s statements
at issue here were permissible expressions of the probable conse-
quences of unionization under NLRB v. Gissel Packing Co., 395 U.S.
575, 617–618 (1969).
meetings with employees to be admissible as evidence, even
when the surreptitious recording violates State law. See, e.g.,
East Belden Corp., 239 NLRB 776, 782 (1978), enfd. 634 F.2d
635 (9th Cir. 1980). The Board has, at times, even found such
tape recordings to be the best evidence of what transpired at the
meeting. See, e.g., McAllister Bros., 278 NLRB 601 fn. 2
(1986), enfd. 819 F.2d 439 (4th Cir. 1987); Algreco Sportswear
Co., 271 NLRB 499, 505 (1984). Although Respondent had an
opportunity to listen to the tape during the objections proceed-
ing and had received a copy of the transcript at the same time, it
has never disputed the accuracy of the recording. Moreover,
Moss essentially conceded the accuracy of the tape by ac-
knowledging that he made many of the statements attributable
to him in the recording. In making my findings regarding the
meeting, I have relied on the testimony of the witnesses, Ben-
son and Moss, who were basically in agreement as to the key
points, and the transcript to the extent it was corroborative of
this testimony.
Benson testified that Moss spoke about the collective-
bargaining process and the Respondent’s history of dealing
with the Union as representative of the editorial department
employees. Moss read two sections from the collective-
bargaining agreement covering the editorial department that
related to part-time employees. He then said, “[I]f, after 20
years of union representation, that’s all they got . . . what have
you got to lose? Well, I’ll tell you what you’ve got to lose, you
get to pay union dues.” Later in the meeting, Moss told the
employees that if he were to give the union employees more
than he gave his nonunion employees he would make the case
for the whole company to unionize. Benson testified further
that at another point in the meeting Moss discussed the Re-
spondent’s current system for distributing its newspapers and
said: “If we need to, right now, we can find a less expensive
way to deliver this newspaper.”
Moss admitted saying “something to the effect” that the Re-
spondent was smart enough to know that if it sat at the bargain-
ing table and gave the Union more than it gave the rest of its
employees it would be making the case for the Union to union-
ize the whole company. He denied telling the drivers that they
would get less pay if the Union were selected. Instead, Moss
compared the collective-bargaining process to blackjack, the
employees could hold with what they now had in hand, or they
could put it on the table and gamble that they would end up
with more, but they would also risk losing and having less. A
videotape shown at the beginning of the meeting made similar
points about the bargaining process. Moss also admitted dis-
cussing the cost of the Respondent’s current distribution system
and telling the employees that the Respondent had been aware
for some time that there was a less expensive way to distribute
the newspaper, but that the Respondent had not availed itself of
that mechanism because it preferred to achieve savings through
attrition.3 Moss denied saying that this would change, one way
or another, with the Union. According to Moss, this comment
3 Neither Benson nor the tape corroborate Moss’ testimony that he
mentioned attrition at this meeting. Moss conceded that he might have
referred to attrition at one of the other meetings he held with a different
group of employees where the same subjects were discussed.
TIMES-HERALD RECORD 355
came after he had talked about the negativity and cynicism
associated with the Union and referred to union actions, short
of strikes, that had a negative impact on the Company, such as
sick-outs and boycotts. On cross-examination, Moss admitted
further that he told the employees that the driver’s jobs were
not full-time jobs and that the Respondent had done all it could
to make these jobs 8-hour jobs “where it made economic
sense.” Finally, Moss admitted reading the two sections relat-
ing to part-time employees from the Union’s editorial depart-
ment contract.
The tape recording of the meeting shows that Moss’ state-
ment about the Respondent’s current distribution system was as
follows:

If we need to, right now there could be a less expen-
sive way to deliver the Times-Herald Record than the dis-
tribution system that we’ve got. We have never availed
ourselves of those other mechanisms. We have out front
looked for ways to keep our costs under control, and
where there was not a need for full-time drivers. The win-
dow for our distribution is between twelve o’clock and
four o’clock. That is when the papers come off the press.
Those are not eight hour jobs, yet we have done some
things for some body of jobs that we have. We have done
some things on the front end and the back end to try to
stretch the jobs into full-time, but we cannot do that for
every job. But what we have tried to do is to keep people
employed on a full-time basis where it made economic
sense. Where it doesn’t, we cannot do that and we won’t
do that, even with a union.

The tape also shows that these comments were made after Moss
had described actions the Union had taken, short of going on
strike, to put pressure on the Respondent during collective-
bargaining negotiations. Some of these involved sick-outs and
urging consumers to boycott businesses that advertise in the
Respondent’s newspaper, actions that Moss said damage the
Respondent. Immediately before talking about the distribution
system, Moss urged the employees to work together to make
the Company stronger, rather than finding ways to fight with
one another and make the Company weaker. The tape reveals
that, after the above comments about the distribution system,
Moss concluded with the following:

So, these are the realities of the situation, and we all just ought
to go into this thing with our eyes completely wide open. Yes,
maybe they do not strike, but they sure tried to do some things
to hurt us.

There is no dispute that the drivers were assigned nondriving
duties, either at the beginning or at the end of their routes, and
that actual driving time, in good weather, was less than 8 hours.
Thomas Muldoon, one of the drivers who was active in the
Union’s campaign, acknowledged that there had been a trend in
recent years to attrition out full-time driver routes and replace
them with part-time employees. In addition, Benson testified,
without dispute, that the Respondent had in the past subcon-
tracted some bulk delivery routes in an effort to cut costs. The
Respondent’s distribution manager, Ronald Vandermark, who
was the distribution foreman at the time of this meeting, testi-
fied that he was aware that full-time drivers’ concern about job
security was one of the reasons for the Union’s campaign.
The complaint alleges that Moss’ statements about the Re-
spondent’s distribution system threatened employees with loss
of jobs if they selected the Union as their collective-bargaining
representative. The complaint alleges further that Moss’ state-
ment, that paying union employees more than nonunion em-
ployees would “make the case for the whole company to union-
ize,” threatened employees with lesser pay than its nonunion
employees if they selected the Union as their collective-
bargaining representative. The Respondent argues that these
statements, when considered in the context of the entire meet-
ing, were permissible expression of the likely consequences of
unionization and protected by Section 8(c) of the Act.
The standard for evaluating an employer’s preelection state-
ments, such as those at issue here, can be found in the Supreme
Court’s decision in NLRB v. Gissel Packing Co., supra at 618–
619:

[A]n employer is free to communicate to his employees any
of his general views about unionism or any of his specific
views about a particular union, so long as the communications
do not contain a “threat of reprisal or force or promise of
benefit.” He may even make a prediction as to the precise ef-
fect he believes unionization will have on his company. In
such a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an employer’s
belief as to demonstrably probable consequences beyond his
control or to convey a management decision already arrived at
to close the plant in case of unionization. . . . If there is any
implication that an employer may or may not take action
solely on his own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no longer
a reasonable prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion, and as
such without protection of the First Amendment. . . . As stated
elsewhere, an employer is free only to tell “what he reasona-
bly believes will be the likely economic consequences of un-
ionization that are outside his control” and not “threats of
economic reprisal to be taken solely of his own volition.” [Ci-
tations omitted.]

The Court also noted that this analysis of employer statements
“must take into account the economic dependence of the em-
ployees on their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended impli-
cations of the latter that might be more readily dismissed by a
more disinterested ear.” Id. at 617. Finally, in responding to
criticism that the line between permissible and impermissible
speech was too vague, the Court noted that the employer is in
the best position to make his views known without engaging in
“brinksmanship” simply by avoiding conscious overstatements
he has reason to believe will mislead his employees. Id. at 620.
Applying the above test to the Respondent’s statements at is-
sue here, I find that Moss’ statements regarding the Respon-
dent’s distribution system did not cross the line between per-
missible speech and unlawful threat. Moss’ statement must be
considered in the context of the entire speech, and in particular,
his remarks that immediately preceded it. The General Counsel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
concedes that Moss did not directly threaten employees with
loss of employment, arguing that such a threat was implicit in
his statement. However, there is no contention that Moss’ de-
scription of the Respondent’s experience with the Union during
negotiations for the editorial department was not truthful. Nor
is there any contention that his description of the collective-
bargaining process was unlawful.4 When considered in this
context, it is clear that Moss was merely describing for employ-
ees the economic impact of unionization and what that could
mean for Respondent’s continuation of its current practice of
stretching part-time jobs into 8-hour jobs to keep people em-
ployed full time because it “made economic sense.” The pre-
diction that Respondent would not continue to do that if it
didn’t make economic sense, “even with a Union,” is not a
threat of “economic reprisal that would be taken solely of [Re-
spondent’s] own volition.” It is clear from the context of the
statement that any decision made by the Respondent regarding
its distribution system would be based on economics, including
the economics of dealing with a union. Star Fibers, Inc., 299
NLRB 789 (1990); Atlantic Forest Products, 282 NLRB 855
(1987); Rexall Corp., 265 NLRB 121 (1982), enfd. in relevant
part 725 F.2d 74 (8th Cir. 1984).
The cases relied on by the General Counsel are distinguish-
able. In Brunswick Corp., 282 NLRB 794 (1987), the Board
found an unlawful threat in the following rhetorical question,
“what would stop [the company] from picking up and moving
to Mexico if the union did get in the plant?” Clearly, such a
statement, without more, conveys the impression that an em-
ployer will simply pack up and leave solely on the basis of the
union’s success or failure in the election, and not on the basis of
objective economic factors beyond his control. Similarly, in
MK Railway Corp., 319 NLRB 337 (1995), the administrative
law judge, with Board approval, found the employer’s state-
ment, “if the union came in [the Respondent] would have to
look at one of it’s other options . . . diverting work to Mexico,”
was an unlawful threat. The clear implication of this statement
was that any such decision was contingent exclusively on the
union’s success or failure in the election and not on economic
hardships beyond the employer’s control that might result from
unionization. In MPG Transport, 315 NLRB 489 (1994), the
threat was direct, not implied.
In reaching this conclusion, I am mindful of the Board’s de-
cision adopting the hearing officer’s finding that this same
statement was objectionable. However, the Board applies a
different standard to objections than it does to alleged unfair
labor practices. In ruling on election objections, the test is
whether the employer’s conduct during the critical pre-election
period destroyed the “laboratory conditions” necessary to en-
sure that employees have an opportunity to make an uninhibited
choice of bargaining representative. General Shoe Corp., 77
NLRB 124, 127 (1948). While conduct that violates Section
8(a)(1) is “a fortiori” election interference,5 the reverse is not
true. Conduct may be objectionable even if it does not violate
the Act. See ADIA Personnel Services, 322 NLRB 994 (1997).

4 See, e.g., Custom Window Extrusions, 314 NLRB 850 (1994); Fern
Terrace Lodge, 297 NLRB 8 (1989).
5 Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962).
Because the Board goes to great lengths to ensure employees’
free choice in an election, it has held that communications
which hover on the edge of the permissible and the impermissi-
ble are objectionable. Pacific Telephone Co., 256 NLRB 449
(1981). Finally, I note that the statement in the instant case was
close to the edge of permissible speech, as evidenced by the
split on the Board panel.
I reach a different result with respect to Moss’ other state-
ment which is alleged to be unlawful. It is undisputed that
Moss told the employees that the Respondent was smart enough
to know that if it sat at the bargaining table and gave the Union
more than it gave its nonunion employees, it would be making
the case for the Union to organize the whole company. The
clear implication of this statement is that the Respondent would
never agree at the bargaining table to give the drivers more than
they currently had as unrepresented employees, despite its obli-
gation under Section 8(d) of the Act to bargain in good faith
with the bargaining representative chosen by the employees.
The Board has historically found such statements to be unlaw-
ful. Excel DPM of Arkansas, 324 NLRB 880 (1997); American
Telecommunications Corp., 249 NLRB 1135 (1980). The point
Moss was trying to make with this statement was driven home
by the presence at the meeting of a member of the editorial
department bargaining unit, Steve Burr, who told the employ-
ees that, after 20 years, the union employees always get less
than everybody else in the building. The clear implication of
Moss’ statement, when considered in the context of the meet-
ing, is that the employees would have less benefits than they
would if they remained nonunion. Accordingly, I find that the
Respondent, by this statement, violated Section 8(a)(1) of the
Act as alleged in the complaint.
B. The Reorganization of the Distribution Department
The distribution department is operationally part of the Re-
spondent’s production division which prints and delivers the
Respondent’s newspaper. As the newspapers come off the
presses, they are carried via conveyor into the mailroom where
advertising supplements are inserted by machine. The papers
are then stacked and bundled by another machine and carried
by conveyor to the loading area to be loaded on to the Respon-
dent’s vans and trucks driven by the drivers involved in this
proceeding. Prior to the March election, the Respondent em-
ployed more than 160 employees in the mailroom and distribu-
tion department, including the 62 drivers. The remaining em-
ployees are primarily part-time employees who operate the
inserting and stacking machines and prepare the papers for
distribution. Prior to July, John Botti was the Respondent’s
distribution manager in charge of the mailroom and distribution
department and Ronald Vandermark was the distribution fore-
man who supervised the drivers. Vandermark replaced Botti in
July.
The Respondent’s bulk delivery drivers involved in this pro-
ceeding deliver the Respondent’s 85,000 daily and 100,000
Sunday newspapers to stores and other dealers who sell indi-
vidual copies, and to independent carriers and motor route driv-
ers who deliver the paper to individual homes. The carriers and
motor route drivers are independent contractors and are part of
the Respondent’s circulation department. Prior to the March
TIMES-HERALD RECORD 357
election, the Respondent had 34 different bulk delivery routes
making in excess of 1000 individual drops. The drivers were
assigned to specific routes that are posted as they become
available when drivers leave the Respondent’s employ. It ap-
pears that the full-time drivers generally delivered on their as-
signed routes Monday through Friday while the part-time driv-
ers covered the same routes on weekends or when the full-time
drivers were absent. The drivers were required to make their
deliveries between the time the papers came off the press,
around midnight, and 5 a.m., in order for the carriers to make
their deliveries to individual customers before the Respondent’s
6 a.m. guaranteed delivery time.
There is no dispute that deliveries could be delayed by occa-
sional late press runs and bad weather or road conditions. Over
the years, the Respondent had preferred using full-time drivers
who could be relied on to work late in order to make deliveries
because they had no other jobs to go to during the day.6 It is
undisputed that the drivers had various duties, in addition to the
delivery of the paper, assigned to them. Some drivers had du-
ties in the mailroom at the beginning or end of their shift, such
as running sorting machines, sweeping floors, checking for
scrap, and loading trucks, while others were required to remain
in their trucks at the end of the route to cover delivery short-
ages. Shortages occur when, for any number of reasons, a car-
rier finds he does not have enough papers to satisfy his delivery
route. Other drivers filled out their 8 hours by acting as couri-
ers, delivering and picking up documents from the Respon-
dent’s headquarters or one of the bureaus.
As noted above, Publisher Moss reminded the drivers at the
March 21 meeting of the steps the Respondent had taken to
give the drivers full-time hours “when it made economic sense”
to do so. Moss testified at the hearing that it did make economic
sense to employ full-time drivers in March when he made that
statement. In addition, driver Benson testified that, sometime
during the summer of 1997, Vandermark reassured him that
full-time drivers would always have a full-time position with
the Respondent, although the Respondent would eliminate full-
time routes through attrition and put full-time drivers on the
longer routes in Sullivan and Ulster counties. According to
Benson, Vandermark made this statement in response to a ques-
tion from Benson about rumors circulating at the time that the
Respondent was planning to get rid of full-time drivers. Be-
cause Vandermark was not asked about this conversation dur-
ing his testimony, Benson’s testimony is uncontradicted. Mul-
doon also testified that he was aware that the Respondent was
eliminating full-time routes through attrition and Vandermark
acknowledged that he was aware of concerns about job security
among the full-time drivers during the union campaign.
Moss and George McCanless, the Respondent’s director of
administration at the time, testified that they were summoned to
a meeting at the corporate headquarters of the parent, Ottoway
Newspapers, Inc. (ONI), in the first half of May. They were
told that ONI’s parent, the Dow Jones Company, was putting
pressure on its community newspaper division, which included
the Respondent, to perform to the standards of other publicly

6 Many of the Respondent’s part-time drivers also held full-time jobs
with other employers.
traded newspaper publishers. They were told that Dow Jones
expected a profit margin in the 30-percent range. The Respon-
dent was directed to develop a compensation reduction plan
that would allow it to meet this target. Moss and McCanless
testified, without dispute, that similar directives were given to
the other newspapers that comprised ONI. The Respondent is
the largest of the ONI newspapers.
The Respondent notified its employees of ONI’s directive in
a June 29 letter signed by Moss and distributed to all employ-
ees. This letter informed the employees that, in answer to this
corporate directive, the Respondent developed a voluntary
separation plan which employees had until July 17 to accept.
This plan had three elements: (1) incentives to encourage em-
ployees already eligible to retire under the Respondent’s pen-
sion plan to do so, (2) an early retirement plan for employees
close to meeting eligibility requirements for full retirement, and
(3) a voluntary buyout for employees who did not meet the
requirements of the retirement offers. The latter buyouts were
to be offered to certain employees based on the Respondent’s
business needs. Moss informed employees that, if a sufficient
number of employees did not accept these buyout offers, the
Respondent would consider involuntary layoffs to achieve the
goals set by ONI.
On July 16, the day before the deadline to accept a buyout,
Moss informed the drivers and the two fleet mechanics7 in the
distribution department that the Respondent’s restructuring of
the distribution department was incomplete. Moss advised
these employees that the Respondent was continuing to work
on the restructuring plan and that the voluntary buyout would
be offered to drivers and mechanics after the deadline. On July
21, Moss informed all employees by memo that 65 people had
accepted the voluntary buyouts before the deadline. However,
since not all of these individuals were full-time employees, the
total did not equal 65 “full-time equivalents (FTEs).” Never-
theless, according to Moss’ memo, the Respondent was “on
track to accomplish our restructuring in all areas of the com-
pany except distribution.” With respect to the distribution de-
partment, Moss said:

The scope and complexity of our distribution operation did
not lend itself to a restructuring during the allotted window.
We continue to work on a plan for that part of the company
and it will be addressed at a subsequent time.

Moss also informed employees in this memo that the Respon-
dent’s remaining departments were developing operating plans
to account for the reduced staff and that a few involuntary lay-
offs had been necessary, despite the voluntary response to the
buyouts.
Benson testified that, about the time that the Respondent’s
buyout offer was being considered by employees, he and sev-
eral other drivers had a conversation with Production Director
Bill Lieb in the parking lot. According to Benson, Lieb told the
drivers that there was a plan to keep 17 full-time driver posi-
tions and that those would be offered by seniority. Benson con-
ceded that this statement was not contained in his pretrial affi-
7 The fleet mechanics were not included in the unit that voted on un-
ion representation in March.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
davit, claiming that he did not recall this conversation at the
time he gave his affidavit. Muldoon corroborated Benson to
some extent when he testified that drivers were told by Van-
dermark and Lieb, after the buyout was offered in June, that
there would be a certain number of full-time positions available
by seniority even after the compensation reduction plan. Ac-
cording to Muldoon, he and other drivers did not take the buy-
outs when first offered because of these assurances. Lieb did
not testify and Vandermark did not contradict Muldoon’s testi-
mony. The record reveals that, in fact, four full-time and two
part-time drivers were among those employees who accepted
the buyout in July.
Vandermark testified that he was informed by his boss, for-
mer Distribution Manager Botti, in late June, that ONI had
directed the Respondent to “downsize” and that he had to re-
duce staff in the distribution department by 16 FTEs. Accord-
ing to Vandermark, upon receiving these instructions from
Botti, he calculated the total number of hours that would be
available in the department after removing 16 FTEs, then he
looked at trip sheets to determine the average time it took to
make all the deliveries on every route. He then looked at the
hours that would remain after accounting for the deliveries and
determined where those hours could best be used to reconstruct
the department. On July 24, Vandermark sent a memo to Bill
Lieb, the Respondent’s production director, with a copy to
McCanless, outlining his calculations. In this memo, Vander-
mark concluded that the Respondent would need 1024 man
hours a week to distribute the paper using part-time drivers, and
that this number could be further reduced by making other
changes in the way the paper was distributed in Sullivan
County and Port Jervis.
In addition to the analysis that Vandermark was doing, the
record reveals that the Respondent hired an independent con-
sultant to study its distribution system and make recommenda-
tions. There is no dispute that the consultant recommended, in a
July 26 report, that the Respondent outsource its distribution
operation and eliminate all the employees. Although the con-
sultant recommended further analysis, the Respondent rejected
his recommendation and did no further analysis of it. Instead,
from late July through August, according to McCanless, the
Respondent considered various alternative distribution systems,
including Vandermark’s suggestion, in his July 24 memo, of an
all part-time driver system. On August 23, McCanless sent a
memo to Moss and ONI Vice President Beverly Jackson sum-
marizing the additional costs and savings to be realized from
such a delivery system. McCanless predicted more than
$400,000 a year would be saved by implementing Vander-
mark’s recommendation.
The Respondent adopted Vandermark’s recommendation for
restructuring the distribution department and communicated
this decision to the drivers at a meeting on September 8. At the
meeting, the drivers were given a memo from Lieb outlining
the new distribution system. According to this memo, the plan
was “meant to streamline the distribution process by eliminat-
ing nonproductive time and shortening truck run length.” Under
this plan, the Respondent eliminated the full-time driver classi-
fication, established additional single copy independent dis-
tributor routes, and consolidated truck runs with more bulk-
drops locations.8 Full-time drivers whose positions were being
eliminated were offered four options: (1) apply for any open
full-time or part-time job in the company, (2) accept an avail-
able part-time driver position, (3) apply for one of the new
single copy distributorships (or any other independent contrac-
tor opportunities, or (4) take advantage of the separation pack-
age that had been offered June 29.
As part of the restructuring plan, the Respondent also created
seven new salaried exempt positions (transportation managers)
that were also offered to full-time drivers on a seniority basis.
According to Vandermark, he created these positions, along
with two new assistant foreman positions in the mailroom, with
the hours left over after he calculated how many hours would
be needed per week just to drive the delivery routes. Vander-
mark testified that there was a need for additional supervision
in the mailroom/distribution area, which he hoped to fill by this
action. With respect to the transportation managers, each was
assigned a distribution area with six to seven drivers. The
transportation manager would be responsible for hiring and
training new drivers in his area, cross-training drivers so they
could cover any route in the area, ensuring delivery on the
routes within his area by arranging to cover for absent drivers,
and covering shortages.
Benson testified that, after the Respondent announced this
new plan at the September 8 meeting, he asked “when was this
plan hatched” and Vandermark responded “some three years
ago.” Benson recalled that one of the drivers asked about the
assurances they had been given at the time the buyout was first
offered that there would be a certain number of full-time posi-
tions. Vandermark replied that “this was not about numbers,
it’s about a new distribution system.” Benson testified that,
toward the end of the meeting, Moss contradicted Vandermark
by telling the drivers that the plan was “hatched” within the last
week or so. Neither Vandermark nor Moss contradicted this
testimony.
Both Benson and Muldoon accepted the buyout and were
subsequently rehired as part-time drivers. They are driving
routes that were formerly full-time routes. They no longer have
the additional duties in the mailroom nor do they have to re-
main in their trucks at the end of the route to await a call to
cover shortages. The mailroom duties previously performed by
the drivers are now performed by part-time mailroom employ-
ees. Shortages are covered primarily by the carriers themselves
and circulation department district managers, with transporta-
tion managers covering shortages closer to the distribution
facility. As full-time drivers, Benson and Muldoon received
benefits such as health insurance, pension, a 401(K) plan, and
vacation and sick leave. Since becoming part-time, the only
benefits they have are vacation and sick leave, pro rata, that
was restored shortly before the hearing.
The Respondent’s new distribution system went into effect
on October 2. There is no dispute that, since then, some “part-
time” drivers have occasionally worked 40 hours or more. This

8 In the past, drivers delivered the papers to individual carriers at
their home or another location. Under the new system, the papers
would be delivered to a single location and all the carriers in the area
would have to come to that location to pick up their papers.
TIMES-HERALD RECORD 359
is due to delays in hiring new part-time drivers to take over
routes vacated by departing full-time drivers and the willing-
ness of some part-time drivers to work hours in excess of their
assigned schedules to cover these runs. Vandermark testified,
without dispute, that some of the former full-time drivers have
refused to work any hours beyond their new part-time sched-
ules, causing the Respondent to rely on the same group of more
cooperative drivers to meet its delivery needs. It also appears
that other delays in implementing the new distribution system,
caused by delays in the delivering of new vehicles, have caused
some apparent inefficiencies in the distribution system. Such
inefficiencies would not be unexpected during the transition
phase of any reorganization. In any event, McCanless testified,
without dispute, that the Respondent had already realized sav-
ings in excess of $100,000 during the first 5 months under the
new system. Payroll records in evidence show that the Re-
spondent’s biweekly payroll for the distribution department is
approximately $18,000 less than it was before the March 21
election.
Finally, the record establishes that the distribution depart-
ment was not the only part of the Respondent’s operation af-
fected by the compensation reduction plan implemented to
meet ONI’s May directive to increase profit margins. By reduc-
ing the number and length of its delivery routes, the Respon-
dent was able to reduce the size of its fleet and lower mainte-
nance costs, resulting in the reduction of one fleet mechanic
from a full-time to a part-time position. In addition, two full-
time maintenance mechanics in the mailroom, who service the
machines, were reduced to part time. The Respondent also
terminated its separate commercial printing business, resulting
in the elimination of a full-time sales position, five full-time
press positions and four part-time positions in the mailroom
that were associated with this operation. Any remaining com-
mercial printing business is now handled by the Respondent’s
main press and regular crew. The Respondent also eliminated
one full-time and four part-time positions in the library, which
is part of the newsroom, and laid off its janitorial employees,
replacing them with a contractor.
The General Counsel alleges that the Respondent re-
structured it’s distribution department and eliminated the full-
time drivers in retaliation for their support of the Union, in
violation of Section 8(a)(1) and (3) of the Act. The General
Counsel concedes in his brief that there is no direct evidence of
unlawful motivation, relying instead on circumstantial evidence
to prove an illegal motivation. Under the General Counsel’s
theory of the case, the Respondent tolerated inefficiencies in its
full-time driver system for a number of years, informing the
drivers, as recently as March, that it made economic sense to
preserve full-time driver positions. Vandermark’s recommen-
dation to eliminate all full-time drivers and replace some of
them with nonunit transportation managers and independent
distributors was made at precisely the moment that the Board’s
hearing officer recommended that a new election be held be-
cause of the Respondent’s objectionable conduct. That objec-
tionable conduct included an alleged threat to full-time driver’s
job security, a threat allegedly carried out on September 8 when
the Respondent announced its new distribution system. Ac-
cording to the General Counsel, the Respondent was aware that
the Union’s core support was among full-time drivers and, by
eliminating them, it hoped to eliminate any remaining support
for the Union before a new election could be held. The General
Counsel argues that further evidence of the Respondent’s dis-
criminatory motive may be found in the Respondent’s failure to
consider other alternatives to elimination of the full-time driver
classification and its failure to perform the “additional analysis”
recommended by the independent consultant.
The Respondent counters this argument by pointing to the
evidence that the Respondent’s restructuring of its distribution
department occurred in the context of other operational changes
made to reduce costs and increase its profit margins. With
respect to timing, the Respondent argues that the timing was
explained by the directive from ONI in early May, not by the
hearing officer’s report, pointing out that memos from Moss to
the employees which predate the hearing officers recommenda-
tions establish that the Respondent was working on a plan to re-
structure its distribution system before it knew that a new elec-
tion would be held. The Respondent further argues that it
would make no sense for the Respondent to “retaliate” against
full-time drivers, in anticipation of a new election, after the
Union had lost the first election by a 3 to 1 margin. In this
regard, the Respondent points out that it rejected a recommen-
dation from its independent consultant that would have elimi-
nated the entire unit in favor of a plan that retained most of the
unit, but reduced their hours, a plan which might be expected to
alienate the employees and cause them to vote for the Union in
any new election. Finally, the Respondent cites the savings it
in fact achieved as further evidence that the restructuring was
an economically motivated business decision unrelated to the
union organizing campaign.
In cases such as this, where the finding of a violation turns
on motivation, the Board requires the General Counsel to estab-
lish, by a preponderance of the evidence, a prima facie case that
union or protected activity was a motivating factor in the alleg-
edly unlawful conduct. On such a showing, the burden shifts to
the respondent to establish that it would have taken the same
action even in the absence of union or protected activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Accord: Advance
Auto Parts Distribution Center, 322 NLRB 910 (1997). The
Supreme Court approved the Board’s burden-shifting analysis
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). As the General Counsel correctly points out, the Board
frequently relies on circumstantial evidence to find a prima
facie case of unlawful motivation because direct evidence is
seldom available. See, e.g., Hambre Hombre Enterprises v.
NLRB, 581 F.2d 204 (9th Cir. 1978); Trader Horn of New Jer-
sey, 316 NLRB 194, 198 (1995); and Abbey’s Transportation
Services, 284 NLRB 698, 701 (1987), enfd. 837 F.2d 575 (2d
Cir. 1988). With respect to the Respondent’s burden in re-
sponse to a prima facie case, the Board has held that it must do
more than merely show that it had a legitimate reason for taking
the action in dispute. To meet it’s Wright Line burden, a re-
spondent must show by a preponderance of the evidence that it
would have taken the same action even in the absence of union
or protected activity. Hicks Oil & Hicksgas, 293 NLRB 84, 85
(1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
Applying this test to the evidence here, I find that the Gen-
eral Counsel has failed to make out a prima facie case that the
union activity of the Respondent’s employees was a motivating
factor in its decision to eliminate the full-time driver classifica-
tion. There is no question that the Respondent’s drivers were
engaged in union activity and that the Respondent was aware
generally that the Union was seeking to represent this group of
employees. However, the record does not establish that the
Respondent was aware that full-time drivers supported the Un-
ion to any greater extent than part-time drivers when it made
the decision to eliminate their positions. Although Vandermark
admitted that he was aware that the full-time drivers supported
the Union because of concerns about job security, Moss credi-
bly testified that he thought the part-timers would be more in-
terested in the Union because they had the most to gain.9 In
fact, a significant part of Moss’ March 21 speech to the em-
ployees was aimed at convincing part-time employees that this
was not the case. Moreover, the fact that the Union garnered
only 14 votes in the first election, when the Respondent em-
ployed 27 full-time drivers, could hardly have led the Respon-
dent to believe that full-time drivers overwhelmingly supported
the Union.
The Respondent clearly had antiunion animus as demon-
strated by the 8(a)(1) violation found above, as well as by the
Respondent’s preelection campaign aimed at convincing the
employees that union representation was not in their best inter-
est.10 However, Moss’ statements about the cost of the Re-
spondent’s current distribution system and its efforts to pre-
serve full-time jobs, found by the Board to be sufficient to set
aside the results of the first election, does not establish that the
Respondent was motivated by union activity when it made a
decision later to change that system. I have found above that
the Respondent did not threaten employees through these state-
ments, but merely apprised them of the economic realities
facing the Respondent and expressed his opinion how unioniza-
tion might impact the Respondent’s operation. The fact that the
economic reality caused the Respondent to change its distribu-
tion system, even after the Union had lost the election, hardly
proves that fear of unionization motivated the Respondent’s
action. In this regard, I note that Moss credibly testified that,
although it made “economic sense” to preserve full-time jobs
when he spoke to employees in March, it no longer made eco-
nomic sense to do so in July and August, because the Respon-
dent was now operating under a corporate directive to reduce
its cost and increase its profit margin.
Although, as the General Counsel argues, the timing of the
Respondent’s announced change, coming after the hearing
officer recommended a new election, is suggestive of an unlaw-
ful motivation, I find that the record establishes that this was no
more than a coincidence. The changes to the Respondent’s
distribution system, including the elimination of the full-time
driver classification, occurred at the same time that the Re-

9 Stroppel confirmed that this perception was true.
10 In the past, the board has relied on such campaign propaganda to
prove animus, although many courts have rejected this reliance. See
Holo-Krome Co. v. NLRB, 907 F.2d 1343 (2d Cir. 1990); Cf. Lancaster
Fairfield Hospital, 311 NLRB 401 (1993).
spondent was reducing its compensation costs by offering buy-
outs to employees, reorganizing other areas of the business and
laying off employees, all in response to a directive from its
corporate parent to increase its profit margin. While the
changes in the distribution department were announced after
the Respondent had already implemented the other changes,
written communications to employees before there was any
recommendation for a new election establish that the Respon-
dent was working on restructuring the distribution department
since June.11 Vandermark’s credible testimony confirms that
the timing of the Respondent’s decision to achieve its goal of
reducing costs by eliminating full-time drivers was unrelated to
the pending representation case. Thus, it was the ONI directive
that intervened to cause the Respondent to rethink the way it
distributed its product rather than the prospect of a second elec-
tion. See Gem Urethane Corp., 284 NLRB 1349 (1987); Royal
Coach Sprinkler, Inc., 268 NLRB 1019 (1984).
The General Counsel also relies on the assurances allegedly
given by Vandermark and Lieb to Benson, Muldoon and other
drivers, that there would be a certain number of full-time driver
positions remaining after any restructuring of the distribution
department, as proof that the timing of the Respondent’s deci-
sion was related to the hearing officer’s report rather than the
ONI directive. Even assuming such assurances were given,
they occurred at a time when the Respondent had not yet final-
ized its restructuring plan, as shown by Moss’ July 16 memo.
There is no dispute that the Respondent was considering, dur-
ing this period, alternative distribution plans that ranged from
elimination of the entire unit through outsourcing to a plan to
have all full-time drivers. The “assurances” thus fell within the
range of alternatives being considered. The timing of its subse-
quent choice not to retain any full-time drivers does not compel
a finding of unlawful motivation in light of the other evidence
in the record.
In finding that the preponderance of the evidence does not
establish that union activity was a motivating factor in the Re-
spondent’s decision, I have also considered the undisputed
evidence that the ONI directive to reduce costs and increase
profit margins was a corporatewide phenomena and that, even
within the Respondent’s operations, resulted in the elimination
of other job classifications and the reduction of other employ-
ees from full-time to part-time. The fact that employees who
were not involved in the union’s organizing campaign were
adversely affected by the Respondent’s compensation reduction
program is further evidence that the decision to eliminate full-
time drivers was not unlawfully motivated. See Advance Auto
Parts Distribution Center, supra. The fact that the changes
implemented had the desired effect, while not determinative on
the issue of motive, is further support for the conclusion that
11 In fact, the record establishes that the Respondent had been elimi-
nating full-time routes through attrition for several years. Benson him-
self acknowledged that there were rumors before any union activity
commenced that the Respondent was thinking of eliminating full-time
drivers. This is further evidence that the plan announced on September
8 was not something that was hastily crafted together in response to the
possibility of a rerun election, but rather the result of careful considera-
tion of alternatives that had been under consideration for some time to
address inefficiencies in the department.
TIMES-HERALD RECORD 361
the Respondent’s decision was a legitimate business decision
and not motivated by unlawful considerations. Robinson
Furniture, Inc., 286 NLRB 1076 (1987). Finally, although the
Respondent created seven new full-time nonunit transportation
manager positions to perform some of the duties of the elimi-
nated driver positions, this does not establish that the Respon-
dent still had a need for full-time drivers. I found that Vander-
mark’s explanation of the reasons for creating this position was
credible and plausible and note that other supervisory positions
in the mailroom were created at the same time.
Even assuming that the General Counsel had established a
prima facie case of unlawful discrimination, the preponderance
of the evidence here establishes that the Respondent would
have taken the same action even in the absence of union activ-
ity. Thus, contrary to the General Counsel’s arguments, the
record here shows that the Respondent did consider alternatives
to eliminating the full-time drivers and did a substantial analy-
sis before arriving at its decision. In fact, the Respondent con-
sidered and rejected a recommendation to eliminate all its driv-
ers by contracting out its delivery operation. McCanless’ Au-
gust 23 memo detailing the costs and savings associated with
implementation of Vandermark’s recommendation shows that
the Respondent had a valid and reasonable basis for choosing
the plan it did. It is not for the Board to decide whether other
steps might have been equally effective or to substitute its busi-
ness judgment for that of the Respondent. Rather, the crucial
question is whether the business reason advanced by the Re-
spondent was honestly invoked and, in fact, caused the change.
Ryder Distribution Resources, 311 NLRB 814 (1993); Gem
Urethane Corp., supra.
Based on the above and the record as a whole, I find that the
Respondent did not violate Section 8(a)(1) and (3) of the Act by
restructuring its distribution department to eliminate all full-
time driver positions. Accordingly, I shall recommend dis-
missal of this allegation of the complaint.
CONCLUSIONS OF LAW
1. By threatening employees that they would receive less
benefits than nonunion employees if they selected the Union to
be their collective-bargaining representative, the Respondent is
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. The Respondent did not threaten employees with loss of
jobs if they selected the Union to be their collective-bargaining
representative, in violation of Section 8(a)(1) of the Act, by
statements made by President and Publisher James Moss on
March 21.
3. The Respondent did not violate Section 8(a)(1) and (3) of
the Act on September 8 when it eliminated all full-time driver
classifications as part of a restructuring of its distribution de-
partment.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Orange County Publications, an unincorpo-
rated division of Ottoway Newspaper, Inc., d/b/a The Times-
Herald Record, Middletown, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that they would receive less bene-
fits than nonunion employees if they selected Communications
Workers of America, Local 1120, AFL–CIO, or any other labor
organization, to be their collective-bargaining representative.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Middletown, New York, copies of the attached notice
marked “Appendix.”13 Copies of the notice, on forms provided
by the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 21, 1998.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”