Newark Star Ledger

NEWARK STAR LEDGER The Newark Morning Ledger Co. d/b/a Newark Star Ledger and William Candito and Martin Walsh and Newark Newspaper Printing Pressmen's Union, Number 8, International Graphics and Communications Union, AFL-CIO, Party to the Contract. Cases 22-CA-7234 and 22-CA-7466 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 13, 1977, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed with the Board its brief to the Administrative Law Judge, in lieu of a reply brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his remedy, 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Newark Morning Ledger Co. d/b/a Newark Star Ledger, Newark, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 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 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). we have carefully examined the record and find no basis for reversing his findings. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 232 NLRB No. 95 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully refuse to put to work individuals who have lawfully applied for employ- ment because of their lawful participation in the Washington Post strike or their participation in any other activities protected by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain, or coerce any employees in the exercise of the rights guaranteed them by Section 7 of the Act to engage in self-organization, to bargain collectively through a representative of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any and all these things. WE WILL offer William Candito and Martin Walsh the jobs they would have filled had we not refused to employ them or, if their jobs no longer exist, substantially equivalent jobs, in conformity with our contract with Local 8. WE WILL pay them the backpay they lost because we refused to hire them, with interest. THE NEWARK MORNING LEDGER CO. D/B/A NEWARK STAR LEDGER DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: Case 22- CA-7234 was consolidated with Case 22-CA-7466 on March 23, 1977, pursuant to Section 10(b) of the National Labor Relations Act, as amended, herein referred to as the Act, and Section 102.15 of the Board's Rules and Regulations. On the same date an amended complaint and a notice of hearing were issued. The charge filed by William Candito in Case 22-CA-7234 on October 12, 1976, was served on The Newark Morning Ledger Co. d/b/a Newark Star Ledger, Respondent herein, by registered mail on the same date. The charge filed by Martin Walsh in Case 22-CA-7466 on February 9, 1977, was served on Respondent by registered mail on the same date. The amended complaint charged that pursuant to a current contract Newark Newspaper Printing Pressmen's Union, Number 8, International Graphics and Communications Union, AFL-CIO, herein referred to as Local 8, submitted the names of William Candito and Martin Walsh for employment and Respondent refused and continues to refuse to hire them because of their membership in and their protected activities on behalf of International Graph- ics and Communications Union Local 6, AFL-CIO, herein 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referred to as Local 6, in violation of Section 8(a)( 1) and (3) of the Act. Respondent filed a timely answer denying that it had engaged in any of the unfair labor practices alleged in the amended complaint. Respondent admitted that on or about May 1, 1976, Local 8 submitted Candito's name as an applicant for employment and that his name was rejected. Respondent denied that Walsh's name had been submitted for employment. The case came on for hearing at Newark, New Jersey, on April 28, 1977. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New Jersey. At all times material herein Respondent has maintained its principal office and plant at Star Ledger Plaza, Newark. New Jersey, herein called the Newark plant, and is now, and at all times material herein has been, continuously engaged at said plant in the publishing, printing, and distributing of the Star Ledger, a daily newspaper. Respondent's Newark plant is its only facility involved in this proceeding. In the course and conduct of Respondent's publishing operations at all times material herein, Respondent subscribed to various interstate news services, including, inter alia, syndicated columns by Jack Anderson, William Buckley, Jr., and Ann Landers; advertised various nation- ally sold products, including, inter alia, Firestone Tires, Seagrams Whiskey, and Marlboro cigarettes; and received gross revenue from its publishing operations in excess of $200,000. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 8 and Local 6 are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Newark Morning Ledger Co. and Newark Newspa- per Printing Pressmen's Union, Number 8, International Graphics and Communications Union, AFL-CIO, are The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N. L R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404. 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and parties to a collective-bargaining agreement covering the Ledger's pressroom employees. By virtue of the contract's markup agreement, the Ledger guarantees a certain number of individuals five shifts of work each week. The individuals are known as situation holders. In the event the contract's manning requirements exceed the number of shifts guaranteed under the markup or additional pressmen are needed because a situation holder is absent due to illness, holidays, or vacation, substitutes may be accepted for I day's hire to fulfill the Company's obligations under the manning provisions. Section 3(c) of the contract provides the foreman with the express right to accept or reject any applicant referred by the Union for I day's hire as a substitute. If requested, the Ledger must provide the Union with a written reason for the rejection of an applicant. Pursuant to section 3 and the markup provisions of the contract the procedure followed for the hiring of applicants for employment as substitutes is for the foreman to advise the union chairman the evening before what the manning requirements for the next day's shift will be. The chairman then submits a worksheet which contains the names of those pressmen who are assigned to work, both guaranteed situation holders and substitutes. If an applicant for employment as a substitute is rejected, the foreman crosses his name off the list. The Ledger's policy, prior to October 1975, for hiring a substitute referred by the Union who had never worked for it was to make an inquiry as to his prior work experience to see if the applicant was competent and, if possible, his previous employer would be contacted for a reference check. Substitutes who had previously worked for the Ledger were evaluated by consideration of their prior work record. After October i, 1975, Respondent promulgated a policy in respect to employee applicants who had worked at the Washington Post 2 which was expressed as follows by Mark Newhouse, 3 assistant to the general manager: "[Alnyone from the Washington Post had to have a reference check made before a decision either to hire or not hire was made." This policy was formulated "a month after the strike started [at the Washington Post]. Probably October or November, '75." Respondent "wanted to be very sure [it] did not hire any people that participated" in the events which surrounded the strike such as "sabotage," "vio- lence," and "assaults." Newhouse related that Respondent had in the past been subjected to sabotage, slowdowns, and assaults on its foremen in the pressroom, which situation had been "stabilized" and the pressroom converted to a "relatively efficient and peaceful operation.... we were very anxious that this cycle of violence and sabotage not be repeated in Newark and we wanted to get a reference check on anyone that came from Washington to be very sure that we weren't reinfecting our pressroom with this kind of of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted. 2 The Washington Post is a daily and Sunday newspaper published in Washington, D.C. 3 Upon the request of the Respondent the record is corrected to reflect Newhouse's correct given name as "Mark." 582 NEWARK STAR LEDGER troublemaker." Newhouse testified that foremen were told before they hired anyone from the Washington Post that they "should send his name up to the office so that we could give the Washington Post a call and check on his work record." 4 At the time the events herein occurred, Jack Powers occupied the position as pressroom foreman. He was not called to testify, nor was his absence explained. William Fitzgerald, Jr., who at the time had been acting and assistant foreman, testified that Production Director Dale Douglas informed Powers and him that if any name of an individual who had worked at the Washington Post was submitted by the chairman the name would be rejected "until their name was sent up to the production office to be checked out. .... there was some people that might have been involved in sabotage and we wanted to check them out first." According to Newhouse, he did not learn that Candito and Walsh had been refused employment until after their unfair labor practice charges, respectively, were filed with the Board. Upon inquiry of Powers at that time, Powers reported that he did not hire Candito "because he quit his job without notice." As to Walsh, Newhouse testified, "At first he [Powers] couldn't remember and then he told me that it was because he left without notice and also got benefits because he left without notice .... "5 Walsh had received no extra benefits. Both Candito and Walsh had been situation holders. Candito was the chapel chairman. In early November 1973, Candito notified James O'Reilly. the vice chairman, that he would have to take over as chairman "because he was going to Washington for a couple of weeks to try working there in the Post." Candito informed O'Reilly that Walsh was accompanying him. Around Thanksgiving "towards the end of November, '73."6 Candito told O'Reilly that he would "definitely be staying in Washing- ton," and that Walsh was staying too. When O'Reilly was about to pass on this information to Powers, Powers inquired of O'Reilly concerning the status of Candito and Walsh. O'Reilly thought that he ought to doublecheck; he called Candito's wife and informed her that Candito should call Powers. The next morning Powers informed O'Reilly that Candito and Walsh were "staying in Washington, they are not coming back, and he was going to carry them a couple more weeks to see if they liked it." I 4 Newhouse was not sure that Foreman Jack Powers. who had refused employment to Candito and Walsh, had received the word. I In its bnef Respondent relies on these same reasons: "Their rejections were due to pnor misconduct in failing to provide advance notice of intended termination of employment pursuant to the Ledger's shop practice which misled Respondent into giving them unearned benefits." 6 Respondent's attendance record for Candito reveals that the last days worked by Candito were two shifts during the week of December 5. 1973. Prior to that he had worked five shifts dunng the week ending November 21. 1973. At the time he worked for Respondent, in December. he had already taken employment with the Washington Post. I Both employees had been on vacation when they left. At the time they left they had obtained traveling cards from Local 8. They proceeded to Washington. D.C.. to ascertain whether they wished to work at the Washington Post. I On the same subject, Chairman Tuske credibly testified: "We brought the sheet in and as the men were checking in. Bob and I were in the office watching Jack Powers and the assistant foreman checking the men off as Sometime in December 1973, Candito telephoned Pow- ers and told him that he and Walsh were going to stay in Local 6 and work permanently at the Washington Post. While at the Washington Post both Candito and Walsh engaged in the strike. Each returned to Newark and sought work as hereinafter detailed. On a Friday in November 1975, after his name had been cleared by Local 8, Candito's name was written on the markup list by Vice Chairman Robert Rudolph for the Saturday night shift. (Candito would have been a substi- tute.) Thereafter, according to practice, Rudolph and Chairman William Tuske went into the office to make "any changes [on the list] if anybody tripped up" and had to be replaced with another substitute. Powers informed the union representatives that Candito "couldn't work there" because "he worked in Washington and that Mr. New- house told Mr. Powers that there would be nobody from Washington working at the Ledger." 8 Candito was not employed. About a week later Powers told Rudolph that "because of all the violence that happened down there he said he did not want any people like that working in [the] pressroom."9 Later when Rudolph revealed to Powers that he was going to the Labor Board to give a statement regarding Candito, Powers commented, "[lit is not just the fact he came from Washington, it's that he owes us for uniforms and he didn't like the way he left and that he was carrying benefits or something to that effect while he wasn't working there." 10 In May 1976, Candito contacted James Scofield, presi- dent of Local 8, and asked him whether it would be permissible to work Saturday mornings at the Ledger. Scofield advised Candito to call Jack Mason and have him book him for Saturdays. Candito telephoned Mason and related his conversation with Scofield. Mason replied that he "would have to talk to the foreman, Mr. Powers." After receiving a report from Mason, Candito telephoned Powers and asked him what he meant that he (Candito) "would have to go to the Supreme Court." Powers replied that "that is as far as the Company would go to ... keep [him ] out of the Star Ledger." Candito was not hired. The Respondent "admits on or about May 1, 1976 Local 8 submitted Candito's name to Respondent as an applicant." (Respondent's answer.) 1 In the second week in November 1976, on a Tuesday night (November 9, 1976), Rudolph advised Powers that Walsh was available for work. Powers responded, "[N]o. they were checking in and as he came across Bill Candito's name he says Bill Candito cannot work here . . and he says no men from Washington can work in this pressroom so then I turned around again and says whose orders were those and he says they came upstairs from Mr. Newhouse." 9 The foregoing evidence is admissible under the holding in Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et al. /Bran Manufacturing CompanyJ v. N.LR.B., 362 U.S. 41 1, 416 (1960). as "earlier events" which were "utilized to shed light on the true character of matters occurring within the limitations period." '0 It is obvious that Powers' elaboration on Respondent's reasons for the rejection of Candito as an employee, after the unfair labor practice charges were being investigated, was an afterthought sounding in pretext. " Mason did not testify. The General Counsel excused his absence because "Mason declined to cooperate in the course of the investigation." Even though I have drawn an adverse inference from Mason's absence, I credit Candito's version in view of the record as a whole, Candito's demeanor, Respondent's admissions, and the fact that I have found Candito to be a credible witness in other matters. 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he owed him money for uniforms and he didn't like the way he left. He felt he should have given more notice about leaving." Later Powers mentioned that Walsh did not turn in his earphones (ear muffs).12 At the time Walsh left he did not owe for uniforms nor had he retained any ear muffs. In fact, Walsh was informed in 1974 by a payroll clerk that his vacation pay would not be released unless he returned the uniforms or paid for them. This was the first time Walsh had been informed of this requirement. Walsh paid for the uniforms in the amount of $20.13 Although Respondent claimed that there was an understanding that employees were to return their uniforms if their employ- ment terminated, there was no published specific rule on the subject. The credible evidence does not support a finding that such a rule was in effect. Indeed, Newhouse was not sure that such alleged "understanding" had been communicated to the employees. When Walsh left Respondent's employment he followed the general practice 4 of giving notice to the chapel chairman. His last day worked was November 21, 1973, at which time he took his accrued vacation and left with Candito to work at the Washington Post. While both Candito and Walsh engaged in the strike at the Washington Post, the credible record does not disclose that either of them participated in any violence or other unlawful activities or that Respondent possessed any knowledge that they did participate. Their attempt to return to the Star Ledger occurred while the strike at the Washington Post was still in progress. The refusal of Respondent to give work to Candito in November 1975, and on May 1, 1976, was keyed to Respondent's policy of scrutinizing carefully any applicant for a job who had worked at the Washington Post during the strike. Powers implemented this policy in respect to Candito by rejecting him for employment, ipso facto, without confirming whether he had been guilty of any strike activities which were unprotected and would have justified a refusal to hire. The policy as adopted and enforced by Powers contemplated the denial of employ- ment if the applicant participated in the Washington Post strike regardless of the nature of the participation. This stance was unlawful because an individual may not be barred from employment because he engages or has engaged in concerted activities protected under Section 7 of the Act. Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177 (1941). Cf. Unga Painting Corporation, 229 NLRB 567 (1977), where the Board held that an employer violated Section 8(a)(3) when it refused to hire an individual, commenting "We don't hire no union members." Thus, Respondent violated Section 8(a)(3) and (I) of the Act by refusing to put Candito to work on May 1, 1976, and thereafter, although Candito was qualified to do such work. Any other reasons advanced by Respondent for its refusal to put Candito to work were pure pretexts tailored 12 In judging the pretextual nature of these reasons it is significant to note that they were advanced after Candito's unfair labor practice charge had been served on Respondent, on October 12. 1976, and may have been an accommodation of position. No doubt Powers had "wised up." :l The payment was made by a check dated April 12, 1974. 14 Newhouse testified that notice of termination may be given directly to a supervisor or through a union representative. 11 Tuske testified credibly that when an employee would leave Powers as defenses in this proceeding. The real reason Candito was not put to work was that, as a member of Local 6, he participated in the Washington Post strike. As to Walsh his case falls within the same pattern. The reasons given for the refusal to hire him, i.e., he owed for uniforms, he did not turn in his ear muffs, and he should have given more notice about leaving are false. The facts show that he paid for his uniforms, he had no ear muffs, and he followed the usual practice of giving notice of his termination. In fact Powers was ingratiating; he extended the time in which he kept Walsh and Candito on the payroll. 15 His antagonism toward Candito and Walsh first surfaced when they applied for jobs after they had participated in the Washington Post strike. The fact that the reasons given were false warrants an inference that some other reason was being concealed. N.LR.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1, 1966). Here the reason which protrudes like a sore finger is Walsh's participation in Local 6's strike at the Washington Post. Power's disposition to consider such factor in the refusal to hire Candito gives substance to the same conclusion in regard to Walsh. As in the case of Candito, I am convinced and find that the "real reason" 16 for Respondent's refusal to put Walsh, who was otherwise qualified, to work was that, as a member of Local 6, he participated in the Washington Post strike. Hence, by its refusal to put Walsh to work on or about November 9, 1976, and thereafter, the Respondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 2. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed by Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully refusing to put William Candito to work on May 1, 1976, and Martin Walsh on or about November 9, 1976, and thereafter, Respondent engaged in unfair labor practices within the meaning of 8(aX3) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative "would tell that man if you do not like where you are going, I will give you a 90 day leave of absence so you can return and hold onto everything, hospitalization, Blue Cross, and all that." It is clear that Powers had extended the same benefits to Candito and Walsh. Respondent's protest in this respect is not only tardy but sounds in pretext. 16 See N.L RB. v. Brown, John, et al., d/b/a Brown Food Stores, et al., 380 U.S. 278 (1965). 584 NEWARK STAR LEDGER action designed to effectuate the policies of the Act. It having been found that Respondent refused to put William Candito and Martin Walsh to work on May 1, 1976, and on or about November 9, 1976, respectively, in violation of Section 8(a)(3) and (1) of the Act, it is recommended that Respondent offer each immediate employment to the positions which they would have filled on the dates of the refusals to hire or, if such positions no longer exist, to substantially equivalent positions and restore to them any benefits they may have lost and make them whole for any loss of earnings they may have suffered, by reason of Respondent's wrongful acts herein detailed, by payments to them of sums of money equal to the amounts they would have earned from the dates of the refusals to hire to the date of the offers of employment, less net earnings during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).'7 Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '8 The Respondent, The Newark Morning Ledger Co. d/b/a Newark Star Ledger, Newark, New Jersey, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Violating Section 8(aX)1) and (3) of the Act by refusing to put to work individuals who have lawfully applied for employment because of their lawful participa- tion in the Washington Post strike or their participation in any other activities protected by Section 7 of the Act. 17 The employment and backpay rights of Candito and Walsh will be subject to the applicable contracts, or contract, between Local 8 and Respondent. It is intended by this remedy that the status quo ante be established as nearly as possible. is In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become (b) In any other manner interfering with, restraining, or coercing any employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended, to engage in self-organization, to bargain collectively through a representative of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any and all of these things. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer William Candito and Martin Walsh employ- ment and reimburse them for backpay in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy" and comply fully with the remedy. (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 recommended Order. (c) Post at its Newark plant at Newark, New Jersey, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. its findings, conclusions, and Orders, and all objections thereto shall be deemed waived for all purposes. 19 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." 585