Triangle Publications, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 651 (N.L.R.B. 1973)

TRIANGLE PUBLICATIONS, INC.
Triangle Publications , Inc., N.Y.C. and Newspaper
Guild of New York. Case 2-CA-12585
June 29, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On February 28, 1973, Administrative Law Judge
John F. Funke issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs, and
the General Counsel filed a brief in support of the
portions of the Administrative Law Judge's Decision
to which he did not except.
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
,conclusions of the Administrative Law Judge to the
extent consistent herewith.
We agree with the Administrative Law Judge,
based on his credibility findings, that the transfers of
employees Friedlander and Valenti from
Respondent's Hightstown, New Jersey, plant to its
New York City plant violated Section 8(a)(3) of the
Act. Approximately 2 months later the New York
plant closed and neither Friedlander nor Valenti was
returned to work at Hightstown. As we find that ap-
propriate remedy for the unlawful transfers to New
York, in accordance with the usual practice in 8(a)(3)
cases, is restoration of the status quo ante, and as such
remedy encompasses offers of reinstatement of these
employees to their former Hightstown jobs and reim-
bursement of monetary loss, we find it unnecessary to
decide whether Respondent's failure to transfer either
of these employees back to Hightstown after the New
York plant closed constituted independent violations
of Section 8(a)(3).2
For related reasons, we deem it unnecessary to de-
cide whether, in addition to the 8(a)(3) violations, the
transfer of Friedlander from Hightstown to New
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge' s resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
2 We note in this connection that there has been no suggestion that the
Hightstown jobs of these employees have been eliminated . On the contrary,
other employees from the closed New York plant have been transferred to
Hightstown since the closing.
651
York was a unilateral change in a term or condition
of employment, as contained in the collective-bar-
gaining agreement between Respondent and the
Newspaper Guild, constituting a violation of Section
8(a)(5) as found by the Administrative Law Judge_3
The Administrative Law Judge, although he found
a violation of Section 8(a)(5), stated that he would
recommend no affirmative remedy for such violation
beyond the remedy he was recommending for the
8(a)(3) violations. Yet he recommended a cease-and-
desist order against future unilateral action in deroga-
tion of a contractual provision prohibiting the transfer
of any employee without his consent.
In giving his reasons for not recommending an af-
firmative 8(a)(5) remedy, the Administrative Law
Judge noted that the collective-bargaining agreement
was due to expire on March 31, 1973, that the New
York plant where the Guild represented the employ-
ees and where the contract was in operation had
closed and was no longer in existence, and that there
was no contract at the Hightstown plant. For the same
reasons, we think it would be futile to order Respon-
dent to cease and desist from violating the now-ex-
pired contract. Furthermore, to the extent that the
Administrative Law Judge's recommended cease-
and-desist provision purports to enjoin unilateral
changes in the transfer clauses of any other contract,
we do not think it is appropriate at this time. There
is no evidence in the record that Respondent currently
is a party to any contract having a clause of the type
under consideration here. To enjoin Respondent from
making changes in contracts it might enter into in the
future would be an overly broad proscription in the
circumstances of this case. As the Administrative Law
Judge noted in refusing to recommend a broad gener-
al cease-and-desist order, the unfair labor practices
committed by the Respondent were directed to a par-
ticular situation and a particular employee and did
not manifest flagrant disregard for the policies of the
Act. This observation applies equally to the conduct
of Respondent which is alleged to have violated Sec-
tion 8(a)(5).
We deem the remedy we are providing for the viola-
tion of Section 8(a)(3) found in the transfer of Fried-
lander to New York to be the only appropriate
remedy for that transfer whether or not it also consti-
tuted a violation of Section 8(a)(5). Therefore, without
regard for the merits of the Administrative Law
Judge's finding of an 8(a)(5) finding, we hereby dis-
miss the 8(a)(5) allegations of the complaint.
3 The parties have expressly refrained from requesting that the Board defer
to arbitration with respect to the contractual question
204 NLRB No. 108
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
We find merit in certain exceptions filed by the
General Counsel regarding the remedial provisions
recommended by the Administrative Law Judge for
the 8(a)(3) violations.
Backpay or other reimbursement to Friedlander
and Valenti should be awarded from February 8,
1972, the date of their unlawful transfer, rather than
April 2, the date the New York plant closed. It may
well be, as the Administrative Law Judge implicitly
assumes, that no monetary loss was suffered by either
of these employees until their employment was termi-
nated on April 2. Whether or not this is so can more
properly be ascertained in the compliance stages of
this proceeding.
More substantially, we disagree with the Adminis-
trative Law Judge's finding that employee Valenti was
offered reinstatement at the hearing when
Respondent's representatives stated that they had no
objection to his reinstatement. Valenti had previously
inquired about getting back his old job in Hightstown
and was told that he would be called back when an
opening occurred. Respondent therefore never had an
"objection" to reinstating Valenti, but neither at the
hearing nor at any other time did it actually offer him
a job.4 We shall order that Valenti, like Friedlander,
be offered reinstatement and given backpay beyond
the date of the hearing and subject to the usual con-
siderations for determining actual monetary loss.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Triangle Publications,
Inc., Hightstown, New Jersey, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
union activity and threatening reprisals for engaging
in such activity.
(b) Transferring any employee from one of its
plants to another plant to discourage union activity at
either plant, or to make it appear that the transfer of
any other employee was not for the purpose of dis-
couraging union activity.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Jesse Friedlander and Leonard Valenti
full and immediate reinstatement to their former jobs
at Respondent's Hightstown, New Jersey, plant or, if
those jobs no longer exist, to substantially equivalent
jobs without loss of seniority or other rights and privi-
leges and make them whole for any loss of earnings
or other monetary loss they may have suffered by
reason of Respondent's violation of the Act with in-
terest at the rate of 6 percent per annum to be comput-
ed in the manner specified in Isis Plumbing & Heating
Co., 138 NLRB 716, and F. W. Woolworth Company,
90 NLRB 289.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Hightstown, New Jersey, plant copies
of the attached notice marked "Appendix." I Copies
of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by
Respondent's authorized representative, shall be post-
ed by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
° Cf. Ertel Manufacturing Corp, 147 NLRB 312, 334
5 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate any employee con-
cerning his union activity nor threaten him with
reprisal because he engaged in such activity.
WE WILL NOT transfer any employee from one
plant to another plant to discourage union activi-
ty at any plant.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
their exercise of the rights guaranteed by Section
TRIANGLE PUBLICATIONS, INC. 653
7 of the Act.
WE WILL offer Jesse Friedlander and Leonard
Valenti full and immediate reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, at our Hights-
town plant and we will make them whole for any
loss of pay or other monetary loss they may have
suffered. Said loss shall be computed on a quar-
terly basis and shall include interest at a rate of
6 percent per annum.
All of our employees are free to become or remain
members of any labor organization, or to refrain from
becoming or remaining members of any labor organi-
zation, except to the extent that such right may be
affected by a collective-bargaining contract contain-
ing a union-security clause lawful under Section
8(a)(3) of the Act.
TRIANGLE PUBLICATIONS,
INC
(Employer)
Dated By
5. Briefs received from the Respondent on January 17,
1973, from the General Counsel on February 1, and a reply
brief from Respondent on February 16.2
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying, I make the following:
FINDINGS
I THE BUSINESS OF RESPONDENT
Respondent has been engaged for many years in the pub-
lication of two well-known racing information newspapers,
Racing Form and The Morning Telegraph. In publishing
these newspapers, which are national in circulation, it oper-
ates plants at Radnor, Pennsylvania, Hightstown, New Jer-
sey, and had, until April 7, 1972, operated a plant at West
52nd Street, New York City. Its revenues from these publi-
cations exceed $1 million annually. Respondent had re-
ceived raw materials at these plants of substantial value
which were shipped to the plants from States other than the
States in which said plants were located. It is engaged in
commerce.
II LABOR ORGANIZATION INVOLVED
(Representative ) (Title) The Guild is a labor organization within the meaning of
the Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 36th Floor, Federal Building, 26 Fed-
eral Plaza, New York, New York 10007, Telephone
212-264-0300.
DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Administrative Law Judge: This proceed-
ing was brought before the National Labor Relations Board
upon:
1. A charge filed February 22, 1972, by Newspaper Guild
of New York, herein the Guild, against Triangle Publica-
tions, Inc., herein the Respondent, alleging Respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act.
2. A complaint issued by the General Counsel on April
26, 1972, alleging Respondent violated Section 8(a)(1), (3),
and (5) of the Act.
3. An answer filed by Respondent denying the commis-
sion of any unfair labor practices.
4. Hearings held by me at New York, New York, on
October 3 and 13 and November 1, 1972.1
1 The hearing was not closed until December 13 when further documentary
III THE ISSUES
The issues as framed by the pleadings were:
1. Whether Respondent interrogated its employees con-
cerning their union activity and threatened them with repri-
sals for engaging in union activity and remaining union
members, thereby violating Section 8(a)(1) of the Act.
2. Whether Respondent transferred employee Jesse
Friedlander from its Hightstown plant to its New York
plant without his consent and to prevent him from engaging
in union activity at Hightstown in violation of Section
8(a)(3) and (1) of the Act.
3. Whether said transfer of Friedlander unilaterally mod-
ified a collective-bargaining agreement then in existence
between Respondent and Guild in violation of Section
8(a)(5) and (1) of the Act.
4. Whether Respondent has refused to retransfer Fried-
land to its Hightstown plant in violation of Section 8(a)(3)
and (1) of the Act.
5. Whether Respondent transferred Len Valenti, another
employee, from its Hightstown plant to its New York plant
and refused to retransfer him to conceal its true motive for
transferring and refusing to retransfer Friedland, thereby
violating Section 8(a)(3) and (1) of the Act.
evidence was submitted
2 Respondent was granted leave to file a reply brief since the General
Counsel's brief, due to the pendency of certain motions, was not served until
14 days after Respondent's brief had served
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EVIDENCE
A. Background
The Respondent and the Guild had been parties to a
collective-bargaining contract covering the editorial depart-
ment of its New York operation since 1943. The latest con-
tract, General Counsel's Exhibit 2, covered the period from
March 20, 1970, through March 31, 1973. This contract
contained the following clause:
Article XIII-Job Security
Section 8-TRANSFERS
(a) No employee shall be transferred by the Pub-
lisher to work in the same enterprise or in other
enterprises conducted by the Publisher, or by a sub-
sidiary, parent, related, or successor of the company,
without the employee's consent. No employee shall
be penalized for refusing to accept such transfer.
(b) Should the Publisher initiate a transfer of any
employee covered by this Agreement from The
Morning Telegraph in New York City to the Daily
Racing Form in East Windsor Township, New Jer-
sey and should the employee accept such transfer,
the Publisher will pay the cost of moving household
goods and personal effects from the employee's ex-
isting residence to the employee's new residence in
the general area of the East Windsor Township Daily
Racing Form production facility.
(c) Any employee transferred by the Publisher will
have no less favorable working conditions than those
enjoyed prior to said transfer.
B. The Testimony
Most of the issues in this case will be resolved by determi-
nations made on the oral testimony of the witnesses. The
General Counsel's testimony will be reviewed first.
1. Jesse Friedlander
Jesse Friedlander, whose transfer and retransfer consti-
tute the chief issue in the case, was first employed by Re-
spondent in the editorial department of the Morning
Telegraph in 1960. He was employed at its New York City
office and joined the Guild shortly after his employment.3
His ability and experience are not at issue, in fact it was his
expertise and special talent in composing room work which
allegedly led to his transfer from Hightstown to New York
on February 9, 1972,4 the transfer at issue.
Friedlander was first transferred from New York to
Hightstown in June 1971, where he was employed by the
newly established Racing Form plant there. Racing Form
was not regularly published at Hightstown until the Interna-
tional Race at Laurel in November 1971. In September
3 He was a member of the negotiating committee which negotiated the
contract previously referred to herein
Unless otherwise noted all dates refer to 1972
1971, Friedlander first spoke to Jack Deegan, executive vice
president of the Guild, concerning organization of the edi-
torial staff at Hightstown and was told there could be no
organization until the paper was publishing. In January
1972, Friedlander and some of the other writers had a lun-
cheon at which the Guild was again discussed and Friedlan-
der decided to ask Deegan to come down again in the early
part of February when the Respondent's executives would
be on their winter cruise. Deegan's reply was that the proper
way to start organizing was to obtain names so Friedlander
took some blank cards and distributed them among the
editorial staff, including the chartwriters, the handicappers,
and the wire room.5 He collected about 45 names. Later that
day he was called into the office of Fred Grossman, editori-
al assistant to Saul Rosen, national editor, who asked him
why he was collecting names and if he thought it a smart
thing to do. When he told Grossman that Deegan had asked
him to do it, he was told that Jack Flood, production man-
ager , was furious about it, particularly since the executives
were away .6
On Tuesday, February 8, Friedlander and Len Valenti,
an editor, were called into Rosen's office by Grossman who
told them they were being sent to New York the next day
for 2 weeks, 3 weeks, or perhaps longer because the Tele-
graph was having trouble with the printers in the makeup
room and needed an experienced man like Friedlander.
Friedlander asked for a letter stating he was not being trans-
ferred for Guild activity and that the transfer was tempo-
rary, a demand which was refused. He then saw William
Williams, regional manager and director of labor relations
for Racing Form, and he was again refused the letter.
Friedlander then called Deegan and told him he would
file an official protest when he reached New York. At New
York he was met by the grievance committee who told him
they were behind him and would order the slot man, who
distributes work assignments, not to give him any work.
Friedlander then called Grossman at Hightstown to advise
him he was not getting work and also talked with Williams.
The result was that Williams told him he would get work
and if he did not accept it he would not be paid.
(Friedlander's protests were based on the transfer clause of
the contract.) Friedlander then filed his grievance.
Friedlander testified that as to his duties in the makeup
room, which Respondent gave as the reason for his transfer,
his hours were such that he had to leave before the makeup
was completed and that in the 2 months he worked there he
was only in the makeup room three times. His identification
card at Hightstown was picked up and his Blue Cross bene-
fits transferred to New York.
The first grievance discussion was by telephone between
Deegan, Williams, and Stewart Hooker, publisher of Racing
Form. Deegan protested the transfer and said New York
was now overstaffed and it was agreed to hold a meeting on
February 15. Williams and Louis Iverson, business manager
of the Telegraph, were present as were Deegan, Friedlander,
5 The executives were on their cruise when this took place. The date is best
fixed as February 3, a Thursday
6 Friedlander testified that on the following day Grossman called him into
his office where Grossman asked him what he had done Friedlander told
him he had been asked to get names and had gotten them. Grossman then
asked him what he thought would happen to him
TRIANGLE PUBLICATIONS, INC. 655
the grievance committee, and the Guild's attorney. Williams
stated the transfer was made to alleviate the problems with
the printers and when Deegan protested that it violated the
contract clause Williams argued that the clause covered
only conditions relating to hours and wages.
Friedlander then addressed the group and stated the
transfer was on a pretext to get him out of Hightstown, that
this demonstrated the importance of having Guild represen-
tation, and that if he was not transferred back he would be
as aggressive as Jack Flood, former chapel chairman for the
ITU, but that he would not sell out for an executive position
as Flood had done.
Friedlander worked in New York until the printers' strike
on April 2 (the Telegraph did not resume publishing after
the strike) and on the first day of the strike drove to Hights-
town to get his job back. He was denied admittance to the
plant but saw Hooker, by chance, who not only told him he
had no job but also refused him entrance to the plant.
Friedlander was not thereafter employed by Respondent.
2. Saul Rosen
Saul Rosen , a retiree from Racing Form since July 31,
19727 testified that he had been national editor of that
paper at Hightstown at the times material herein . In Janu-
ary 1970 he had been transferred to Hightstown from the
Morning Telegraph in New York and there he was engaged
in preparing the new paper for publication . In early 1971 he
had a conversation with Williams concerning the staffing of
the new paper and requested that Friedlander be transfer-
red. He told Williams that Friedlander had been active in
the Guild in New York but Williams' reply was that they
would have the Guild there anyway and in June Friedlander
was transferred . Sometime after Friedlander arrived Rosen
asked him not to embarrass him by engaging in Guild activi-
ty because he (Rosen) had made a promise to Williams that
Friedlander would not engage in union activity. (Rosen
testified that Friedlander was regarded as "sort of a stormy
petrel.")
On or about January 28 , 1972, the executive cruise left
Port Everglades headed for various Carribean ports.
Abroad were Williams, Iverson , Hooker , Rosen , and Tom
Flood , circulation manager for Respondent , and their
wives.
On the evening of February 3 all were seated for dinner
when Williams was called away , returned, and talked to
Hooker and Hooker then came over to Rosen and told him
Friedlander , Rosen 's man, was trying to organize for the
Guild at Hightstown . (Rosen testified that Hooker appeared
livid .) This news had been received by Williams on a ship-
to-shore telephone conversation with Jack Flood at Hights-
town . Rosen then called Fred Grossman from the ship,
asked him what was going on, and was told that Friedlander
was trying to get some names and that he (Grossman) had
told him to call it off . Rosen then returned to the dining area
and asked Williams for an appointment with him and
Hooker for 9:30 the following morning . At this meeting
Rosen told them he had never "guaranteed " Friedlander
7 Rosen stated his retirement was involuntary and that he was told it was
for his health , although he protested his health was good.
and that, since both Williams and Hooker had at one time
or another admitted that the Guild would eventually get in,
he did not understand the big fuss. Hooker then told him
that "as long as I live, Friedlander would never get back to
Hightstown." He then directed Rosen to write a letter trans-
ferring Friedlander back to New York.
On Rosen's return from the cruise (at Miami) he spoke to
Grossman (either Saturday or Sunday) and on Monday,
February 7, he was told that Grossman was giving Friedlan-
der and Valenti a letter transferring them to New York and
that this was done at the direction of Williams and Hooker,
who had returned directly to Hightstown.8 In April a strike
by the ITU at New York resulted in a closing of that plant
and also resulted in the need for more reporters at Hights-
town, which would presumably fill the circulation gap left
by the demise of the Telegraph. It was decided that Fried-
lander and Valenti would not be taken back but three others
Bud Berns, Jack Geria, and Carroll McBride, were transfer-
red. (The record is not clear but it would appear that none
of these had ever worked at Hightstown.)
On cross-examination it was established that Rosen and
Friedlander enjoyed a friendly relationship, that certain
members of the Rosen family were friendly with certain
members of the Friedlander family, and also that in
Respondent's executive meetings there at times existed an
undercurrent of hostility between Rosen on one hand and
Williams and Hooker on the other. Rosen testified that he
did not give a statement to the Labor Board until after his
involuntary retirement, thinking it improper to do so while
still on Respondent's payroll.
3. Leonard Magnus
Leonard Magnus testified that he worked at the statistical
desk at the Telegraph from August 1, 1971, until April 1,
1972, when it ceased publication. His immediate boss was
Fred Cicero to whom he had been introduced by Friedlan-
der, his friend, and who hired him. On February 8 he had
a conversation with Cicero in the Telegraph office after
another employee told him Friedlander and Valenti were
being transferred back to New York because Respondent
needed "heavyweights" to take care of the printers. He testi-
fied that he was nervous concerning the effect of the Hights-
town operation on New York and also concerning rumors
of a strike and slowdowns by the ITU at New York. He
asked Cicero about this transfer of "heavyweights" and
Cicero said he would find out. About 30 minutes later Cice-
ro told him Friedlander was being sent back because he had
tried to start a union back there (Hightstown).9
According to the witness Friedlander and Valenti worked
Rosen testified that in this conversation relating to the letter Grossman
told him that the other transferee (besides Friedlander) would be Valenti, "to
make i t appear that this is not purely a union situation resulting in the
transfer of Friedlander ." Grossman testified that he and Rosen discussed the
transfers but was not interrogated as to this remark It therefore stands
uncontradicted.
9 Cicero, called by Respondent , denied that he ever told Magnus that
Friedlander was transferred to New York because of union activity He
admitted that when Friedlander arrived in New York rumors were circulated
both to the effect he was to help straighten out the composing room and that
he was returned because of his union activity He also denied having inquired
concerning the reasons for Friedlander's return.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
next to him at the editorial desk until April 1 and did not,
during that period, go to the composing room more than
five times. Whoever laid out the paper would go to the
composing room about 4:45 or 5 and work until the paper
went to bed at 6:30 or 6:45. Valenti never went to the
composing room. Friedlander and Valenti left at 5:45 to
drive to Jersey.
About 2 weeks before his appearance at the hearing Mag-
nus accidently met Cicero and they discussed the closing of
the Telegraph. They also discussed Friedlander's then pend-
ing case and Magnus stated " . . . if they prove that he was
sent to New York because of union activity, and his com-
ment to me was, I still believe they did it that way."
On cross-examination Magnus stated that he had also
observed David Schultz, Carroll McBride, and Charles
Beck doing composition and that, "I saw that they were
doing it with the same control, the same talent, with the
same ability [as Friedlander]."
4. Rocco DeRossa
DeRossa was Cicero's assistant at the chart desk during
his employment with the Telegraph. He testified that about
1 or 2 months after Friedlander was transferred to New
York he had a conversation with Cicero in which he told
him he (DeRossa) had been driving to and from work with
Friedlander, apparently from New Jersey where Friedlan-
der had bought a home. He mentioned to Cicero that it was
too bad Friedlander had been transferred back. Cicero re-
plied that it was Friedlander's own fault because he had
been too open about gathering names for the Guild and that
that was why he was transferred back.10 I credit DeRossa's
testimony despite Cicero's denial. DeRossa impressed me as
a truthful witness who freely admitted that he himself had
requested a transfer to Hightstown which had been rejected.
5. John E. Deegan
Deegan testified that, during January 1972, he received
the names and addresses of employees in the editorial de-
partment at Hightstown from Friedlander. In February,
when Friedlander received notice of his transfer, he called
Deegan who was in Connecticut. The next day, in the pres-
ence of (Guild) unit officers he called either Williams or
Hooker. In any event all parties were hooked in. Deegan
objected to the transfer of both Friedlander and Valenti on
the ground that it would increase the normal complement
of the New York staff (Respondent never alleged that New
York was understaffed) and that the reasons given did not
appear valid." A meeting was set for February 15.
At this meeting Williams and Iverson represented Re-
spondent and Geroge Dale, unit chairman, Pat Grande, first
vice chairman, Thomas Frawley, unit secretary, and Dee-
gan represented the Guild. Friedlander attended as an ob-
server. Deegan's first objection was that Friedlander's
transfer was against his will and therefore violated the con-
10 Cicero denied making this statement to DeRossa.
11 A specific objection of Deegan 's was that the unit chairman in New
York had not been notified , as Deegan claimed the contract required, of any
vacancy in New York
tract. Williams' reply was that the New York contract cov-
ered only wages and hours at Hightstown and not other
benefits or privileges. Further examination of Deegan was
then deferred when the Administrative Law Judge refused
to permit interrogation on the negotiations which led to the
collective-bargaining contract.12
The Respondent's witnesses:
6. William Williams
Respondent's chief witness was William Williams, direc-
tor of labor relations. He testified that at the time of the
hearing Respondent was dealing with the Trenton ITU,
Lithographers No. 1 and had an election pending with the
Mailers . At New York the Telegraph had been dealing with
six unions . When the Hightstown operation was under con-
struction he told Deegan he would have to organize it and
later Williams sent Guild members from New York to
Hightstown, including Friedlander, to perform editorial
work before regular publication started. The Daily Racing
Form, to be published in Hightstown, was a new east coast
edition of Racing Form which was then published only in
Chicago and Los Angeles." During this period of incuba-
tion experienced people in New York were transferred to
Hightstown and persons hired at Hightstown were transfer-
red to New York for training. These transfers, until the
transfer of Friedlander to New York in February 1972, were
voluntary.
Testifying to the cruise Williams stated it left port on
January 29 and returned to Florida on February 5. Jack
Flood was left in charge at Hightstown and Morris Horow-
itz at New York. Flood was to report any unusual develop-
ments and on Thursday, February 3, he talked to Flood,
who had been trying to reach him, by ship-to-shore tele-
phone. Flood told him that the printers in New York (Local
6, ITU) had put a strike vote notice on the bulletin board
and that Bernice Purcell, general foreman at New York, was
having problems and was asking for help and at the same
time told him that Friedlander, at Hightstown, was taking
the names and addresses of employees presumably for orga-
nizational purposes. Williams' reply was to tell Purcell "to
hang tough, we were going to get him help somehow," and
that the report on Friedlander was "very interesting." Wil-
liams then reported this conversation to Hooker in full and
Hooker suggested they talk to Rosen. Both went to Rosen's
table in the dining room where Hooker told Rosen of the
New York problem and also of Friedlander' s organizational
activity at Hightstown. Rosen, according to Williams, ap-
peared dumbfounded and made little reply. The next morn-
ing further discussion took place between the three and
Rosen stated he had been embarrassed at dinner because
Mrs. Rosen was like a godmother to Friedlander. Williams
denied hearing Hooker tell Rosen, in either of these conver-
sations, that Friedlander would never get back to Hights-
town and denied that any second ship-to-shore
12 Deegan also testified that, from their first discussion of the Hightstown
plant in 1970, Williams told him he knew the Guild would eventually attempt
to organize it and that he had been shown around the plant by Williams in
October or November 1971
13 Racing Form had suspended publication on the east coast in the 1950's
TRIANGLE PUBLICATIONS, INC.
conversation took place.14 Hooker did decide that some-
thing had to be done about the New York situation but no
transfers were discussed aboard the ship.
On Monday, February 7, Hooker and Williams returned
to Hightstown where Hooker and Grossman, Rosen's assis-
tant, decided that Friedlander and Valenti would be trans-
ferred and Williams, when informed, agreed with the
decision. Later Hooker decided that Grossman should give
him a letter concerning the transfers, which was done. Both
transfers were intended to be temporary, as were all trans-
fers at this time. Later that day Friedlander came to Wil-
liams and protested the transfer, and asked for a letter
assuring him the transfer would be temporary and also
asked what would happen if he did not go. Williams told
him a letter was unnecessary and that if he did not go he
would not be paid.
Williams was present at the grievance meeting held Feb-
ruary 15 and when Friedlander spoke he took notes. Ac-
cording to these notes Friedlander stated:
You are going to have to deal with me for 19 more years
because I am going to end up either being president of
the Guild unit, or the head of the negotiating commit-
tee, or something, and you are either going to have to
deal with me or face me for 19 more years.
The kind of Jesse Friedlander you have to deal with
depends on whether or not you put me back to Hights-
town now. I demand to be put back to Hightstown
now. I know ways of giving you problems, causing your
paper to be late, if you don't transfer me back down
there you are going to end up paying for it later.
That, according to Williams, was the end of Friedlander's
comments. Williams testified that the reason Friedlander
was not transferred back to Hightstown after the Telegraph
closed was "because of his remarks in a grievance meeting
on February 15th in New York," referring to the above
quotation.
On cross-examination, which consumed 50 pages, Wil-
liams was asked three questions which were directed specifi-
cally to the issues involved. Williams testified that after the
initiation of publication at Hightstown on October 13, 1971,
there were no transfers from Hightstown to New York until
the transfer of Friedlander and Valenti in February and that
none of the previous transfers was made over objection of
the transferee. He also stated that when Friedlander was a
member of the negotiating committee which negotiated the
1970 contract he had attempted to shut down the Telegraph
on Labor Day and that he (Friedlander) was the only mem-
ber of the committee to recommend such action.
7. Stewart Hooker
Stewart Hooker testified that he was publisher of Daily
Racing Form and had been employed by Respondent for 25
years.
Sometime in 1970 Hooker had his first conversation with
14 The reason for the General Counsel's persistence in trying to establish
a second conversation was never made clear
657
Deegan regarding organizing the Hightstown plant and
Deegan later supplied him with a letter from the National
Guild granting the Newspaper Guild of New York jurisdic-
tion over Hightstown. In early 1972 he recollected that Dee-
gan was taken on a tour of the plant by Williams and that
Williams brought him into his office. Hooker never voiced
any opposition to the organization of the plant.
When the executives went on the January-February
cruise in 1972, Jack Flood was left in charge of Hightstown
and Morris Horowitz, office manager, was left in charge in
New York. On Thursday, February 3, Williams received
reports from Flood indicating that a strike vote might be
taken in New York and that there was a further slowdown
in the composing room. Flood also told Williams that Fried-
lander had been visiting various departments at Hightstown
taking names and that Friedlander had used the expression
"while the cat's away the mice will play." After receiving
Williams' report Hooker and Williams went to Rosen's ta-
ble where Hooker told Rosen the New York situation was
further aggravated by a strike meeting notice and that
Friedlander had been visiting various departments at
Hightstown. Hooker reminded Rosen that he (Rosen) had
given his assurances that Friedlander would conduct him-
self as "a normal employee" at Hightstown. Hooker said
this was a quiet conversation. The next morning, however,
Rosen demanded an apology for the conversation of the
previous evening because of the close relationship between
the Rosen and Friedlander families. Why Rosen thought he
was entitled to an apology was never explained and no
apology was given. On Monday, at Hightstown, Hooker
had a conversation with Grossman in which Grossman told
him he was preparing a letter transferring Friedlander and
Valenti. The transfer was intended to be temporary. Hooker
approved both transfers although Deegan protested them in
a telephone call on February 8.
Hooker testified that he had a conversation with Fried-
lander when he returned to the Hightstown plant after the
grievance meeting in New York and that he refused Fried-
lander entrance to the plant because he had been informed
by Williams that Friedlander had told him that he (Fried-
lander) knew how to close a plant and would not hesitate
to do so if not reinstated (at Hightstown). Hooker said the
plant at Hightstown was highly computerized and had "a lot
of glass in it" and that he did not want Friedlander walking
around the plant after that threat.
On cross-examination Hooker testified that after the
grievance meeting of February 15 he thought he should not
sanction the return of Friedlander to Hightstown and that
sometime after the charge herein was filed he spoke to Do-
lores Korman, Respondent's attorney, about it. Subse-
quently Miss Korman wrote a letter to the Regional Office
in reply to notification of the filing of the charge herein and
setting forth Respondent's position. (G.C. Exh. 12.)
8. Fred D. Grossman
Grossman, who was Rosen's assistant during 1971 and
the winter of 1972, testified that the Hightstown operation
represented an entirely new concept in publication of Trian-
gle papers and that the new operation required transfers
from New York to assist in building a new staff and training
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that staff . These transfers necessitated recruiting for the
staff in New York so that there were times when it was
necessary to transfer experienced former New York person-
nel back to New York, particularly for the Sarotoga sales
and the Labor Day special. 15 Grossman testified that in the
late fall of 1971 or in early 1972 the situation was getting
progressively worse in New York for lack of experienced
personnel . (He was not more specific .) Grossman was
scheduled to, take the Boheme cruise but, due to an accident
to his daughter, canceled it. On February 3, while the Bo-
heme was at sea, he had a conversation with Friedlander in
his office and noticed that Friedlander had a foolscap with
names and addresses of employees written on it . Friedlan-
der told him that he was collecting the names for Deegan
but had completed the operation. Grossman corroborated
Williams' testimony that it was expected that sooner or later
the Guild would organize the Hightstown employees. On
Thursday night he received a call from Rosen asking what
the fuss was about Friedlander and what was going on. He
told Rosen that Friedlander had been getting names and
addresses of employees for the Guild and, that ended the
conversation. He next spoke to Rosen in Florida after the
cruise had ended and told him that Purcell, in New York,
had told him they (the New York office) was being clob-
bered because, the printers had taken a strike authorization
vote and the work was not getting out. He suggested to
Rosen that they send help to New York. It was decided to
prepare a letter to Hooker outlining the New York problem
and since Rosen was in Florida , Grossman wrote the • letter.
He also discussed the New York situation with Williams
and Hooker. Williams and Grossman decided that Fried-
lander had to be one of the transferees due to his experience
and that Valenti would go because he could be spared. It
was Grossman 's testimony that although Friedlander's ac-
tivity coincided with his transfer there was no relation be-
tween the two.
Grossman vehemently denied that he had interrogated
Friedlander about his union activity or had directed any
employee to refrain from union activity or threatened them
with discharge for engaging in such activity. He was not
interrogated as to his comment that "Flood was furious." 16
Later Grossman had a conversation with Friedlander and
Valenti in which he told them the situation in New York was
rough and they needed "a couple of guys" and that they
were selected. They were given no choice. Grossman did not
discuss these transfers with either Dave Schultz or Fred
Cicero.
On cross-examination Grossman admitted that a few
days after Friedlander and Valenti were transferred to New
York a New York writer, a new employee, named Horowitz
was transferred to Hightstown to make up for the loss of
Friedlander and Valenti.
15 Friedlander was transferred back to New York for both of these editions
and then returned to Hightstown.
i6 Grossman 's testimony as to his conversation with Friedlander was that
it was entirely casual , that Friedlander came to his office and was not
summoned , that he saw Friedlander with a list of names and asked what was
going on without knowing union activity was involved He testified to only
one, not two conversations , with Friedlander as to the list.
9. Bernard Purcell
Bernard Purcell, general foreman at New York and res-
ponsible for getting the paper on the streets, described that
situation in New York in November and December 1971
and January 1972 as one of production and labor problems,
including a slowdown by the printers. The situation was
aggravated by the notice of a strike authorization vote post-
ed on February 2. (Resp. Exh. 2) Purcell summarized the
situation as one where the composing room was overman-
ned and underproducing. This situation, to Purcell's think-
ing, could best be corrected by adding personnel to the
editorial staff who were experienced in composing room
work. While Purcell's calls for assistance were unavailing in
November, December, and January he was told in February
by Rosen that something would be done. Four days later he
saw Friedlander on the composing room floor. Friedlander
was working and Purcell was happy. Purcell could not recall
how often thereafter he saw Friedlander in the composing
room but estimated at least three or four times in February.
10. Louis Iverson
Louis Iverson, business manager for Triangle, testified
that he attended the grievance meeting held on February 15
to discuss the transfer of Friedlander. Iverson testified that
the major part of the meeting was devoted to a discussion
between Williams and Deegan concerning the transfer of
employees between Hightstown and New York. When the
meeting was concluded Friedlander, whom Iverson de-
scribed as enraged, said he had a statement to make. Fried-
lander told Williams that he would have to deal with him
(Friedlander) for 19 more years when he became head of the
Guild and that there would be none of "the patsy stuff" as
in New York. Friedlander added, according to Iverson, that
Williams would be dealing with a man of caliber and that
he could show Williams how to stop production of a news-
paper. Williams replied that he would be there when the
time came and with that the meeting broke up.
Iverson testified on cross-examination that at this meet-
ing Respondent had already determined not to transfer
Friedlander to Hightstown.l He admitted that Friedlander
did not use the work strike and did not threaten a strike or
slowdown at this meeting.
11. Dorene and Thomas Flood
Thomas -Flood, circulation manager of the Telegraph,
and Dorene, his wife, were called by Respondent to testify
as to the conversation which took place on the Boheme
between Williams, Hooker and Rosen at dinner on the eve-
ning of February 3. Both testified that Williams left the
dinner table in response to a call and that later both Wil-
liams and Hooker came over to their table where Rosen was
seated. Hooker and Williams engaged in a brief conversa-
tion with Rosen and although neither overheard the conver-
sation both agreed it was neither heated nor excited.
On rebuttal the General Counsel called Pat Grande,
17 This testimony is clearly inconsistent with Williams' testimony that
Friedlander's transfer had been temporary and that the only reason he was
not returned was his remarks at the grievance meeting.
TRIANGLE PUBLICATIONS, INC. 659
Leonard Valenti, and Charles Feraco and recalled Deegan
and Friedlander.
Grande testified that he was present at the February 15
grievance meeting and that Friedlander appeared very up-
set and told Williams and Iverson, at the conclusion of the
meeting, that the Respondent was foolish in treating him in
this way, that he would prevail in a court of law, and that
they would have to deal with him later as chairman of the
(Hightstown) unit. He also told them he would not sell out
for an executive job and that he had helped draft the con-
tract, understood its provisions, and would see that they
lived up to it. He did not threaten a strike or a slowdown.
Deegan testified that his recollection of Friedlander's re-
marks were the same as Grande's, including the fact that he
had no recollection of any threat of strike or slowdown.
Deegan admitted that he thought Friedlander was out of
order since he attended only as an observer, although he did
not object to the substance of the remarks.
Valenti testified that "technically" he never asked for his
job back at Hightstown because he was no longer an em-
ployee of Triangle after the Telegraph closed. He was told
by Fred Grossman that if an opening occurred he would be
called but, since he was not called he assumed he was out
of work.
Friedlander merely repeated that he told Respondent's
representatives his treatment showed the need for the Guild
at Hightstown and that if they persisted in this discrimina-
tion he would not be friendly when he returned to Hights-
town.
The testimony of Charles Feraco, chapel chairman of the
ITU, to the effect that the ITU did not engage in a slow-
down was received.
C. Conclusions
1. Violations of Section 8(a)(1)
The only evidence to support the allegation that Respon-
dent interrogated its employees concerning their union ac-
tivity and threatened them with reprisals lies in the
testimony of Friedlander that on the day he collected names
and addresses of employees at Hightstown he was asked by
Grossman why he was collecting them. According to Fried-
lander, Grossman knew they were for the Guild; according
to Grossman he merely wanted to find out why Friedlander
was collecting names on company time . " At this time
Grossman was Friedlander 's only supervisor (the executives
were on cruise) and had full responsibility for the shop.
When Friedlander admitted he was taking them for the use
of the Guild and at Deegan 's suggestion , Grossman ques-
tioned the wisdom of such action and told him Flood was
furious about it. The next day Grossman called him into his
office and asked him just what he had done and what good
he thought it would do him.
I find the interrogation on these two occasions , accompa-
nied by Grossman 's clear indication that it was not a smart
thing to do and his statement that Jack Flood was furious
is On this narrow issue I credit Friedlander . I cannot believe that Fnedlan-
der could have collected 45 names and addresses openly without manage-
ment becoming almost immediately aware of what was taking place.
about it, sufficient to make the interrogation coercive and
to imply reprisals might be taken against Friedlander for his
activity. As will be found later, this activity of Friedlander
had a close and substantial relation to the decision of the
Respondent to transfer Friedlander to New York in viola-
tion of Section 8(a)(3) of the Act. Under these circumstanc-
es, I cannot consider the two conversations as casual or as
insufficient to establish a violation of Section 8(a)(1).19
2. Violations of Section 8(a)(3)
The complaint alleges in substance that Respondent
transferred Friedlander from Hightstown to frustrate union
organizational efforts there and thereafter refused to trans-
fer him back to Hightstown to prevent a continuance of
those efforts. It also alleges that Valenti was transferred at
the same time to give a cover of legitimacy to those efforts.
I find merit in the General Counsel's case. Despite the
testimony of Williams that he was aware that Hightstown
would eventually be organized and the friendly visit of Dee-
gan to the plant, there is evidence which establishes
Respondent's officers, particularly Williams and Hooker,
resented Friedlander's assumption of the role of organizer.
Going back to contract negotiations in 1970 Williams testi-
fied that Friedlander was the most agressive member of the
negotiating committee and the only one to vote to shut the
Telegraph down on Labor Day. That Friedlander was
thereafter the object of suspicion is supported by the testi-
mony of Rosen that he had promised Williams that Fried-
lander would not engage in union activity at Hightstown.20
A fair reading of the record indicates that Respondent's
opposition was directed not so much to the Guild as it was
to Friedlander's conduct as a member of the Guild.
As to the February 3 shipboard incident, so highly litigat-
ed, certain facts are not in dispute. There is no reason to
doubt that Hooker and Williams, at least, were disturbed by
the news that the situation in New York was deteriorating
and that a strike authorization vote notice had been posted
there and also that Friedlander was organizing the employ-
ees at Hightstown. If the latter situation had been no cause
of concern there would have been no reason to discuss it
with Rosen nor to remind him of the assurance he had given
Hooker. The dual problem was solved by the single act of
transferring Friedlander to New York, thus przviding the
Telegraph with the help of an experienced operator and
ridding Hightstown of an aggressive organizer. The problem
was solved not only with facility but precipitation, for on
Monday, February 7, Grossman was asked to draft a letter
directing the transfer and on Feburary 8 Friedlander and
Valenti were notified. The next day they reported to New
York but not until after Friedlander had reported his griev-
ance to Deegan. Friedlander, after his conversations with
19 See Packer Sales Corporation d/b/a Park Furniture Manufacturing Co.,
199 NLRB No. 165, where the Trial Examiner found a single instance of
interrogation coercive because it was directed to an ex-employee at the time
he was applying for reinstatement Cf. Bourne Co v N.L R.B, 332 F 2d 47
(c A. 2, 1964).
20 Hooker, in his testimony, stated that he had received assurances from
Rosen that Fnedlander would conduct himself as a normal employee. It was
Rosen , not Williams or Hooker, who wanter Friedlander at Hightstown
Whether either Williams or Hooker requested assurances as to Friedlander
is not clear
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grossman in the preceding week , was naturally suspect of
the motive and requested a letter confirming that the trans-
fer was temporary and was not in response to his union
activity. The refusal to give such a letter does not fortify
Respondent's case.
It is, of course , sufficient under Board decisions that one
of the motives for action taken against an employee be
discriminatory to establish violation of the Act. Here there
are factors which establish that the discriminatory motive
was the prime motive. Thus, although Friedlander had been
employed by Respondent for 19 years and was admittedly
one of its most competent editorial employees (the reason
given for his selection), it does not appear that Respondent
made any effort to seek a junior experienced editor who
might not object to the transfer to New York 21 Friedlander
was the only employee transferred in either direction
against his will. No specific request for Friedlander was
made from New York and his use in the composing room
after his arrival was limited to three or four times in Febru-
ary according to Purcell and to about three times during the
2-month period according to Friedlander. Under these cir-
cumstances , the stress placed by Respondent on the need
for Friedlander 's composing room experience is suspect to
the point where it must be found pretextuous. While Re-
spondent contends that section 8(a) of article XIII, supra,
did not protect employees after transfer from New York, a
contention disposed of later , Respondent in the interests of
maintaining good relations with Guild could have given
consideration to the policy stated therein. Instead it chose
to make a unilateral , precipitate and inflexible decision in
a situation which did not compel or require such kind of
action. Nor did Respondent contradict Deegan's testimony
that the New York editorial staff was overmanned after the
arrival of Friedlander and Valenti, an allegation supported
by the fact that an editor, Richard Horowitz, was transfer-
red from New York to Hightstown on February 14.
I think the evidence that the true purpose of the transfer
was discriminatory is sufficient to meet the test set forth by
the first circuit in N.L.R.B. v. Fibers International Corpora-
tion, 439 F.2d 1311, 1312, where the court stated:
Having in mind that a business decision is involved, it
has been our position that the Board has the burden of
making a clear showing that the employer's dominant
motive was not a proper business one, but union ani-
mus.22
21 Valenti, transferred with Friedlander and allegedly for the same pur-
pose , had worked at Hightstown only since December 1971, and for only a
few months prior to that at New York. Purcell testified that he was not very
effective in the composing room. Experience in the composing room was not,
as to Valenti, a determining factor.
22 The Board 's petition for a rehearing to strike the words "clear" and
"dominant" from the decision was denied. The Board 's own requirements of
evidence of unlawful motive are , as may be gathered from the filing of the
petition for rehearing, far less stringent . Nor does it appear , despite the cases
cited by the court on rehearing , that other circuits impose so strict a test Cf.
N L R B v Advanced Business Forms Corp, 474 F.2d 457 (C.A. 2, 1973),
where the court stated*
We hold that there was substantial evidence to support the Board's
determination that the valid grounds for discharge asserted by the Com-
pany were not alone the cause of Fasano 's discharge , and that her
discharge was motivated at least in part by unlawful discrimination on
the part of the Company [ Emphasis supplied ]
See also N.L.R.B. v. Gladding Keystone Corp, 345 F 2d 129, 131-132 (C A
Turning to the refusal to transfer Friedlander back to
Hightstown I find that this, too, was in violation of Section
8(a)(3). Williams' testimony is unequivocal that the only
reason Friedlander was not transferred was Respondent's
objections to his remarks made at the grievance meeting of
February 15. Those remarks, accepting Williams' version as
taken from his notes, I find protected by the statute.
In the recent case of Joseph T. Ryerson & Sons, Inc., 199
NLRB No. 44, a Board majority, with Members Fanning
and Jenkins dissenting, found that a statement made by a
supervisor to an employee-advisor (also an employee) at a
meeting to discuss grievances that "If you continue to back
these grievances up you will have a hard time with the
company and also with the men in the warehouse" was not,
under the circumstances, coercive. The majority's rather
unusual finding that the remark was not coercive was based,
in part, on the fact that it was made at a conference between
management and the employee-advisor held to discuss
procedural matters with respect to a specific grievance and
how to improve the general atmosphere in which grievances
were handled. The majority held that the remark constitut-
ed an expression of a permissible point of view in the con-
text of a general discussion of trivial petty or frivolous
grievances and iterated the familiar rule that candid, even
coarse, discourse is an expected part of successful grievance
proceedings.23 In support of its decision the majority cites
Crown Central Petroleum Corporation v. N.L.R.B., 430 F.2d
724, 731 (C.A. 5, 1970), in which an employee was repri-
manded for calling a supervisor a liar at a grievance meet-
ing. The court, affirming the Board's decision that the
reprimand was unlawful, stated:
Of central importance to our view of the case, is the
nature of the protected activity involved. Harris and
Gilliam were participating in a grievance meeting,
which by its very nature requires a free and frank ex-
change of views, and where bruised sensibilities may be
the price exacted for industrial peace. As the Board
noted, a grievance proceeding is not an audience, con-
ditionally granted by a master to his servants, but a
meeting of equals-advocates of their respective posi-
tions. Manly was not assailed with abuse on the floor
of the plant where he stood as a symbol of the
Company's authority; the characterization of the un-
truth came while he was appearing as a Company ad-
vocate during a closed meeting with Union
representatives.
The remarks made by Friedlander I find less abrasive and
threatening than the language employed by the supervisor
in Ryerson or the employee in Crown, and I find them pro-
tected. See also N.L.R.B. v. Red Top, Inc., 455 F.2d 721
(C.A. 8, 1972); N.L.R.B. v. Teamsters, Local 745 [Red Ball
Motor Freight, Inc.], 80 LRRM 2905 (1972) (holding re-
2, 1970); N L R.B v Princeton Inn, 424 F.2d 264, 265 (C A 3, 1970),
N L R B v Hanes Hotsery Division, 413 F.2d 457 (C A 4, 1969)
23 it seems at least open to question whether a policy which permits an
employer to coerce or intimidate an employee by threats of repnsal for
submitting grievances encourages free discussion at grievance meetings. Nor
does it appear that a policy of granting the employer the right to determine
which grievances are petty and which have merit establishes equality of status
at such meetings . That, however, appears to be the policy fostered by the
majority decision This comment is made only to stress the scope of the
immunity conferred by Ryerson
TRIANGLE PUBLICATIONS, INC. 661
marks made at a union meeting likewise entitled to protec-
tion). Since these remarks constituted the grounds for the
refusal to transfer Friedlander back to Hightstown, I find
the refusal violated Section 8(a)(3) of the Act.
As to Valenti there appears to have been no reason, in
view of his admitted lack of composing room experience, to
transfer him to New York except, as Grossman staled to
Rosen, to make it appear Friedlander's transfer was not
discriminatory. Whether or not Valenti protested the trans-
fer or merely stated he did not want it I find immaterial.24
The vice in his transfer lies in the fact that it was an attempt
on the part of Respondent to conceal its true motive for
transferring Friedlander. It was therefore part and parcel of
Respondent's unlawful conduct and so constituted a sepa-
rate violation of Section 8(a)(3) of the Act.
I do not, on the other hand, find that Respondent violated
Section 8(a)(3) by failing to offer Valenti a transfer back to
Hightstown after the closing of the Telegraph. Valenti was
not refused a transfer back, he was only told that if and
when an opening occurred at Hightstown he would be of-
fered employment 25 and thereafter Valenti considered him-
self to be out of work. Valenti was, however, no longer in
a bracket with Friedlander with respect to discrimination.
Friedlander was refused retransfer because of his remarks
on February 15. Valenti was not present at this meeting nor
included in Friedlander's grievance and the reason for
Valenti's transfer, to give lawful pretext to Friedlander's
transfer, no longer existed. Since, however, there is no evi-
dence that Valenti would have been terminated or laid off
had he remained at Hightstown and since the reason he did
not remain was Respondent's discriminatory action, I find
that Valenti's interim losses in pay, if any, between the
termination of employment at the Telegraph and the offer
of reinstatement made at the hearing due to his discrimina-
tory transfer and the remedy must include such backpay.
3. Violations of Section 8(a)(5)
I find that the transfer of Friedlander to New York const-
ituted a unilateral abrogation of the rights of employees as
set forth in article XIII, section 8, of said contract. The
transfer of Friedlander against his will was in clear violation
of section 8(a). The defense of Respondent is that the rights
of employees covered by that clause and transferred to
Hightstown did not survive the transfer. Respondent con-
tends, without any rationale to support its contention, that
section 8(c), providing that transferees shall have no less
favorable working conditions than they enjoyed prior to a
transfer, included only wages and hours. The language of
the section neither directly nor impliedly sanctions such a
construction. Since section 8(c) is included in that section
which relates to transfers only, there can be no ground for
asserting that it was intended to protect rights not included
in the section and to exclude rights expressly provided by
the section. By placing so unreasonable a construction on
the contract and by taking action in derogation of the con-
tract without consulting the Guild, Respondent violated
Section 8(a)(5) of the Act.26
Upon the foregoing findings , I make the following:
CONCLUSIONS OF LAW
1. Respondent, by interrogating an employee concerning
his union activity in a context of coercion and by impliedly
threatening him with reprisals because of his union activity,
violated Section 8(a)(1) of the Act.
2. Respondent, by transferring employees from its
Hightstown plant to its New York City plant to discourage
union activity at the Hightstown plant, violated Section
8(a)(3) of the Act.
3. Respondent, by refusing to retransfer an employee
from New York to Hightstown because he engaged in pro-
tected concerted activity, violated Section 8(a)(3) of the Act.
4. Respondent, by transferring an employee from
Hightstown to New York without his consent and in viola-
tion of its collective-bargaining contract with the Guild,
violated Section 8(a)(5) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(2), (6), and (7) of
the Act.
V THE REMEDY
Having found that Respondent engaged in and is engag-
ing in certain unfair labor practices, it will be recommended
that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
Having found that Respondent refused to transfer Jesse
Friedlander to its Hightstown plant after the closing of its
New York plant on April 2, 1972, in violation of Section
8(a)(3) of the Act, it will be recommended that it offer him
full and immediate reinstatement to his former job at
Hightstown or, if that job no longer exists, to a substantially
equivalent job, without prejudice to his seniority and other
rights and privileges and that it make him whole for any loss
of pay or other monetary loss he may have suffered by
reason of its refusal to transfer him back to Hightstown. 7
The costs of moving, if any should Friedlander accept such
transfer back shall be borne by Respondent. Backpay shall
be computed on a quarterly basis with interest at the rate
of 6 percent per annum.
Since I have found that the offer of reinstatement made
to Valenti at the hearing terminated Respondent's obliga-
tion to him, backpay will be recommended only from the
period commencing April 2, 1972, and ending November 1,
1972, plus the costs, if any, of moving to Hightstown.
As to the 8(a)(5) violation I find no adequate remedy
exists and I do not understand, after reading Century Elec-
tric Motor Company, 180 NLRB 1051, cited by the General
Counsel as offering an appropriate remedy, what remedy
24 Valenti was called by the General Counsel only as a rebuttal witness
which limited his testimony, although the General Counsel attempted to
examine him as a witness called on direct
25 Counsel for Respondent twice stated at the hearing that Respondent had
no objection to the reinstatement of Valenti.
26 In making this finding I do not hold that the employees in the unit at
Hightstown were covered by the contract but only that the transfer clause
continued to protect the New York employees after transfer.
27 Backpay shall start from April 2, 1972, the date on which the plant was
closed by strike, not to open thereafter
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel is seeking. 8 The contract in New York
expires on March 31 and the plant is no longer in existence.
28 In that case Trial Examiner Reel recommended that the employer make
the employees whole for a Christmas bonus denied them by unilateral action
I am unable to find any analogy to the facts of the instant case
There was, at the time of the hearing, no contract at Hights-
town. Any remedy ordering enforcement of the New York
contract or compelling Respondent to bargain concerning
the scope of article XIII of said clause would be an exercise
in futility. The only available remedy has been recommend-
ed as to the 8(a)(3) violation.
[Recommended Order omitted from publication.]