Newsday, Inc.

86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newsday, Inc. and Newspaper and Mail Deliverers Union of New York and Vicinity . Cases 29- CA-9041 and 29-RC-53871 14 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 9 July 1982 Administrative Law Judge Arthur A. Herman issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond- ent filed a brief in opposition to those exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint in Case 29- CA-9041 is dismissed, and the challenges to the ballots in Case 29-RC-5387 are sustained and the petition in that case is dismissed. i Local 406, International Printing and Graphic Communications Union, AFL-CIO was allowed to intervene in these proceedings. 2 We find no evidence in the record to support the General Counsel's claim that employees George Schwartz, Mark Fazzio, John Dragon, and Mike Crecenzo were at any time acting as agents of the Respondent We also find no merit to the General Counsel's claim that the Respondent, through Supervisor Terry Ragone, threatened employee Schwartz be- cause this matter was neither alleged in the complaint nor fully litigated at the hearing We further note that, while the judge did not specifically rule on an alleged threat made by Supervisor Kepko to Schwartz, he nevertheless found Kepko to be a generally reliable witness and discredit- ed Schwartz' testimony when it conflicted with Kepko's Under these cir- cumstances, we credit Kepko's denial that he threatened Schwartz 3 In finding that the Respondent did not violate Sec 8(a)(3) and (4) of the Act by refusing to rehire Joseph and Jeff Appel, the judge inadvert- ently stated that he was "constrained to agree with the General Counsel that Respondent was discriminatorily motivated in refusing to rehire the Appel brothers " It is apparent from his finding, which we adopt, that the judge, in fact, found no merit in the General Counsel's contentions DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge This consolidated proceeding was heard before me in Brooklyn, New York, on November 16-18, 20, 23, and 25, 1981, and December 7 and 8, 1981.1 The charge which gave rise to this proceeding was filed on July 22, by the Newspaper and Mail Deliverers Union of New York and Vicinity (the Union or NMDU), and culminat- ed in the issuance of a complaint and notice of hearing in Case 29-CA-9041 on September 30 Essentially , it is al- i All events occurred in 1981 unless otherwise indicated leged that Newsday, Inc. (Respondent or Company) vio- lated Section 8(a)(1), (3), and (4) of the National Labor Relations Act by forcing an alleged supervisor, through threats and promises, to engage in acts of surveillance and interrogation of employees with respect to their union activities, by interrogating employees concerning their sympathies for NMDU, by warning and directing employees to refrain from joining the NMDU or to give support to it, by discontinuing its carter and wholesaler operation and terminating its carters and wholesalers in order to eliminate a separate bargaining unit, found to be appropriate by the Regional Director, to avoid the possi- bility of bargaining with the NMDU, by assigning those carters and wholesalers who were rehired to work in the delivery employees unit represented by Local 406, Inter- national Printing and Graphic Communications Union, AFL-CIO (Local 406) but assigning them to more oner- ous routes than they previously serviced, and by refusing to offer employment to certain named carters and whole- salers because the employees assisted and gave testimony favoring the NMDU. Respondent's duly filed answer denies the commission of unfair labor practices. The Union is also the Petitioner in Case 29-RC-5387 filed on April 22 In a Decision, Order, and Direction of Election issued by the Regional Director on July 22, it was determined that the carters and wholesalers em- ployed by Newsday constitute a separate appropriate unit of employees.2 At the subsequent election conduct- ed on August 20, Respondent challenged the ballots of all the employees on the eligibility list contending that they were not in the unit, and the ballots were impound- ed. On September 30, Regional Director Kaynard issued a supplemental decision, order consolidating cases and notice of hearing,3 consolidating Cases 29-CA-9041 and 29-RC-5387 for hearing, inasmuch as a resolution of the issue of discriminatory discharge would also resolve the challenge status of the employees On the entire record,4 including my observation of the witnesses, and after due consideration of the comprehen- sive brief filed by Respondent's I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation engaged in the publication, sale, and distribution of a daily newspaper, maintains its principal office and place of business in Melville, New York. In the course and conduct of its newspaper operations, Respondent has an annual gross volume of business in excess of $200,000. Respondent holds membership in, or subscribes to, interstate news 2 Respondent's request for review of this decision was denied by the Board 3 Inadvertently, Local 406, rather than the NMDU , was named as the charging party in the caption of that supplemental decision 4 Subsequent to the close of hearing , Respondent filed an unopposed motion to correct the record in several respects I have reviewed the sug- gested corrections and grant the motion Accordingly, I receive into evi- dence Respondent's motion to correct record as R Exh 64 6 I have also considered a memorandum filed by Local 406, and clos- ing oral arguments urged by the General Counsel and the Union on the record 274 NLRB No. 19 NEWSDAY, INC services, publishes nationally syndicated features ; and ad- vertises nationally sold products . The complaint alleges, Respondent admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, Respondent admits, and I find that NMDU and Local 406 are labor organizations within the meaning of Section 2(5) of the Act. III. THE APPROPRIATE UNITS A. Respondent admits, and I find, that at all times ma- terial Respondent has employed full-time and regular part-time newspaper delivery employees consisting of drivers and helpers in its transportation department, that said drivers operate trucks to transport Respondent's newspapers daily to various retail outlets, that said em- ployees have been and presently are represented by Local 406 for collective-bargaining purposes, and that said employees constitute a unit appropriate for collec- tive bargaining. B. Respondent admits, and I find, that at all times ma- terial herein a unit of all full-time and regular part-time carters and wholesalers employed by Respondent, ex- cluding newspaper delivery employees represented by Local 406, constituted a separate appropriate unit for collective-bargaining purposes. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is engaged in publishing a daily and Sunday newspaper. Its daily circulation exceeds 500,000 copies of which 75 percent is delivered directly to resi- dences by carrier boys and 25 percent sold via single copy sales outlets.6 Its major area of distribution is Nassau, Suffolk, and Queens counties, with additional sales in parts of Brooklyn and Manhattan. On May 1, 1970, the Times Mirror Company, a California-based or- ganization, acquired Newsday. At that time, home deliv- ery of the newspaper constituted 90 percent of its sales, with single copy sales accounting for the balance; News- day's penetration of the newspaper market in Nassau and Suffolk counties, at that time, was approximately 67 per- cent. Also, at that time, home delivery and the major portion of single copy sales deliveries were performed by truckdriver employees, represented by Local 406, using Newsday trucks, and working out of the Respondent's transportation department. A small portion of single copy sales deliveries was accomplished by employees in Respondent's circulation department, called industrial plant sales persons, who used their own vehicles to de- liver papers to industrial plants. These employees were not represented by Local 406 In 1971, with the influx of small industry in Nassau and Suffolk counties, a decision was made to concentrate on expanding Respondent's single copy sales area so as 6 Such outlets include retail stores, vending machines , and industrial plants 87 to increase total circulation In 1972, Newsday changed its press time from 7:30 to 5:30 a.m. This improved deliv- ery to both home subscribers and single copy sales out- lets. Also, Respondent sought to expand the number of dealers selling Newsday,' and systematically eliminated the industrial plant sales persons and replaced them with wholesalers because it felt that it would enhance the chance of making additional sales if an incentive were of- fered.8 This system was initiated in Nassau county in 1973, and then continued on into Suffolk county. How- ever, since the routes in Suffolk were smaller than Nassau and more widespread, Respondent devised a system of using carters,9 rather than wholesalers, so as to make it more attractive to participants. As the carter's route increased, the route would be turned over to wholesalers. The last area developed was Queens county where the deliverers were principally carters.10 With the advent of these independent wholesalers and carters, Respondent began receiving complaints from Local 406 regarding the use of the independents to per- form deliveries similar to those performed by the drivers in the transportation department represented by Local 406. During the course of the negotiations in 1974, which resulted in a 3-year collective-bargaining agree- ment for the drivers and drivers' helpers in the transpor- tation department, one of Local 406's proposals demand- ed that "All newspapers delivered to dealers, bulk drops, vending machines and circulation employee shall be solely delivered by employee of transportation dept. cov- ered by this agreement."" As a result, Respondent promised to make every effort to give single copy sales deliveries to employees in the transportation department when operational needs dictated it. And, in fact, some dealer transfers were effectuated thereafter However, Local 406 was not satisfied with what it regarded as an insubstantial amount of transfers, and renewed its request at weekly meetings with management. And, when nego- tiations for a new collective-bargaining agreement took place in 1977, Local 406 proposed "Only employees cov- ered by this agreement will deliver to all retail outlets and home delivery distribution points." 12 This request was in even stronger terms than previously because of the steady growth in single copy sales. With that, Re- spondent renewed its promise made in 1974, and commit- ted itself that when Respondent's plant gets moved from Garden City to Melville, which move had been planned since 1974 and which came to fruition in September and October 1979, deliveries to single copy sales outlets in 7 Single copy sales representatives were created for this purpose and they will be discussed, infra 8 Wholesalers purchased newspapers from Newsday at a reduced price and sold them to single copy dealers, retaining the difference in price as their profit Some of the industrial plant salespersons became wholesalers 8 Carters were paid a single flat fee which took into account their hours of work , mileage, and vehicle expenses Both wholesalers and carters used their own vehicles, and generally, working for Newsday constituted a part-time activity for them 10 Stanley Asimov, a vice president of Newsday, testified that the single copy sales went from approximately 45,000 in 1973 to 106,000 in February 1981 He also stated that the average number of pages in the newspaper increased as well. R Exh 51 12 R Exh 52 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Huntington and Bayshore areas would be given over to Local 406. 13 In point of fact, these transfers were ac- complished in October 1979 One other point of friction was also eliminated after the move to Melville Prior thereto the wholesalers and carters were picking up their papers at the plant and that irritated Local 406 ; to allevi- ate the situation , arrangements were made to have truck- drivers deliver papers to a depot at Gear Avenue , rather than the Melville plant, and have the independents pick them up there . With the continuous growth of single copy sales outlets, however, there were no longer out-of- the-way locations involved; in fact, truckdrivers and in- dependents were finding themselves delivering papers on the same streets, this, plus the increased size of the paper itself, was causing distribution problems for both systems and a solution had to be found . In addition, in the summer of 1980, Respondent was looking into the possi- bility of early morning delivery to single copy sales out- lets so as to increase sales even more in that direction.14 From here on, the record is replete with uncontrovert- ed testimony by Respondent 's witnesses as to the steps taken to achieve new circulation gains and assuage Local 406 at the same time. Through Asimov , Respondent in- troduced 47 exhibits" which depict the various studies, charts, meetings, and analysis engaged in by Respondent from early 1980 through the spring of 1981 concerning, first, the feasibility of an earlier Saturday delivery system, and then expanding the study to cover deliveries, Monday through Saturday, in Nassau, Suffolk and Queens counties . Such an undertaking required thorough reports from various departments , i.e., transportation, editorial , circulation, and production, advising top man- agement of projected costs involved in each of several possible earlier press starts . Donald Wright, the president and chief operating officer of Newsday, testified that by September 1980, while he was examining the figures that had been provided regarding the cost of the dual deliv- ery system, the thought came to him that perhaps in ad- dition to a cost advantage, there were other advantages that might be gained from' a consolidated delivery system, i.e , better control, better efficiency, and better employee relations . And so, by December 1980, it was decided that Newsday would conduct a pilot program of delivery to dealers before 7:00 a.m ., using only employee drivers represented by Local 406 . Wright stated that this would give Respondent the close control that it needed over the program , and at the same time, avoid creating any difficulties with Local 406. Representative dealers in the three counties were elected and the implementation date for the commencement of the pilot program was set for February 23, 1981 . In the meantime, however, Local 406 advised Newsday on January 8 , 1981, that unless they resolved their dispute, i.e., that all bulk delivery of newspapers by Newsday shall be performed under the jurisdiction of the Local 406 collective-bargaining agree- ment, Local 406 would file, an arbitration demand with the American Arbitration Association. Whereupon, Wright authorized Daniel Mannix, Newsday's director of employee relations , to discuss the ensuing pilot program with George Tedeschi , president of Local 406 . Mannix had previously told Tedeschi, off the record, about the forthcoming pilot program because he felt that good re- sults with the program would go a long way in solving the friction that existed between Local 406 and News- day. And so Mannix now advised Tedeschi officially and proceeded to discuss with him the details of the pilot program 16 As scheduled, the pilot program began on February 23, 1981 . Within 1 month's time, everyone is agreed, the pilot program proved to be a great success. All of the departments listed above, i.e., transportation, editorial, circulation , and production reported favorably on the pilot program early press time, and the sales figures showed an increase of 48 percent for the first 4 weeks because of the earlier delivery time to dealers. Armed with all of these foreseeable advantages , management de- cided in March and April to proceed to full implementa- tion of the program , with a consolidated delivery system, by July 1, and with an early press start of 3 a .m. Its rea- sons for choosing July 1 as the desired implementation date for the project were expressed by Wright: ( 1) Circu- lation and the amount of advertising in the summer is less, making for a smaller paper to deliver ; (2) better weather in the summer makes deliveries easier; (3) an August advertising rate increase was planned, and in- creased sales in July would justify the demand for an in- crease; and (4) the potential for increased sales was so good that management wanted to get it started as soon as possible. Wright further stated that no general an- nouncement of the forthcoming plan was made in March and April because Newsday did not want to alert its competition to what was happening , and it did not want to disrupt its delivery system by announcing , in advance, the planned consolidation of transportation . Wright's rea- sons for adopting a consolidated delivery system includ- ed (1) better control over the 'scheduling of vehicles in one transportation department ; (2) more economical and efficient to have a single -integrated system; (3) one grouping of employees allows for interchangeability which leads to more efficiency; (4) the transportation de- partment rate of turnover was less than the turnover rate of independent drivers and , by eliminating the latter, the turnover rate would be reduced ; (5) the time spent by sales department personnel engaged in assisting the inde- pendents prepare their deliveries would be eliminated and thereby allow them to concentrate exclusively on sales; and (6) eliminate the jurisdictional dispute that Newsday was having with Local 406 once and for all. 15 The 1977 negotiations culminated in the execution of a 5-year col- lective-bargaining agreement which will expire on July 23, 1982 14 At this point in time , the truckdrivers represented by Local 406 were delivering all of the home delivery newspapers to district depots from which carrier boys delivered the papers to the homes , and about 50 percent of the newspapers to single copy sales outlets The balance was being delivered by wholesalers and carters 15 R Exhs 5-51 16 According to Mannix, the major problem confronting Newsday was the fact that the Local 406 contract did not provide for part-time em- ployees, and that this problem had to be solved if the pilot program were to be successful A victory by Local 406 in an arbitration proceeding would bind Newsday to use only full -time drivers, and Newsday had hoped to negotiate an arrangement with Local 406 to allow for the em- ployment of part-time drivers NEWSDAY, INC B. The Alleged Unfair Labor Practices Which Occurred Prior to July 1, 1981 With all of this background we turn now to the orga- nizing efforts of NMDU. Barry Mark, a former carter and presently a driver for Newsday, testified that he had a conversation with George Schwartz , a single copy sales representative for Newsday , around January 20, 17 in which Schwartz told him that Newsday intended to cut down the size of the wholesalers' routes and increase the number of routes . Because of Schwartz ' remark, Mark sought union representation . During the last week in January , he contacted NMDU by phone, and met with union representatives the first week of February. A meeting with other carters and wholesalers was arranged for March 20, at a Ramada Inn, and about 30 independ- ents showed up. Shortly thereafter, Schwartz was called into Vincent Bordash's office. 18 According to Schwartz, Jerry Muro, the circulation manager, and Chuck Law- rence, the single copy sales manager , were present 19 Schwartz stated that the meeting started with some small talk, and then: [Bordash] said he had heard that there was some talk or grievances that the independents were upset, and he wanted to find out the reasons why. He asked me to call Barry Mark, being I was a friend of his, to ask him if he could find out-if I could find out what the grievances were with the cartage drivers and if I could speak with my wife to find out what the grievances were with the wholesale drivers.20 Mr. Bordash asked me at that point, "How much do you depend on your wife's income?" I told him at that time, being we had just pur- chased a house, went into contract on a house, that her income was vital to us and I depended an awful lot upon it. Jokingly he said it would be nice if his wife had a wholesale route. At that point Jerry Muro asked me how many hours she had worked on the route, and I had told him it was approximately 35 hours a week that she had put into the route. He asked me how much she made. I told him about $300 to $325 a week. He asked me at that point if she would be inter- ested in working, or maybe some type arrangement could be made her going to work full-time as a reg- ular Newsday employee. I told him at that time I'm not sure she would be interested; however, I would ask her and get back to him on it. Mr. Bordash concluded as far as that part by saying, "Please don't forget to call Barry and let me know the results." 11 At first, Mark said he believed this conversation took place in March, then he said he thought it took place the last week in February, when the General Counsel showed Mark his affidavit, Mark then recalled that the conversation took place around January 20 11 Bordash is Newsday's circulation director 19 Lawrence reports to Muro, who in turn reports to Bordash 90 Schwartz' wife, Barbara, was a wholesaler 89 He asked me also at that meeting if I ever heard of the NMDU, and I told him no. He explained to me it was the National Mail Drivers Union, and briefly stated exactly what type of union it was, that they represented the Daily News and the Times and the Post in Manhattan, and they used to be representing the Rockaway News, which I believe went out of business, and the Long Island Press; and he said, you know, "I just wanted to bring you up on it." I said, "Thank you. I appreciated it." Basically that was it. He said, "Please get back to me as soon as you can with an answer from Barry as well as your wife"; and the meeting had closed. Bordash confirms the fact that such a meeting took place. He states that about 10 days before the meeting he became aware of rumors that the independents were dis- contented and organizing and he was concerned about what their grievances were. He spoke to Lawrence who told him that Schwartz was a friend of Barry Mark. Bor- dash does not agree with Schwartz on who was present at the meeting According to Bordash, Lawrence was there, but not Muro, Bordash stated that Richie Czark, Lawrence's assistant, and Drew Kepko,21 were there According to Bordash, [A]fter exchanging courtesies and what not, I had asked George pointedly whether he was a friend of Barry's, and George at that point says, "no, he was not a friend of Barry's that he had gone to the movies on an occasion with Barry." And I felt at that point George wasn't being open with me and that sort of terminated our conversa- tion. Q. Did you at any time during that meeting ask Mr Schwartz to go out and find out about com- plaints of drivers? A. No, I did not. Q. Did you ask Mr. Schwartz during that meet- ing if he had heard of the NMDU? A. No, I did not. Q. Did you instruct Mr. Schwartz in any way during that meeting that he should report to you anything he learned about Union organizing? A No, I did not Q. Did the subject of Mr. Schwartz' wife come up in any way at all during that meeting? A No, it did not. Q. Mr. Bordash, did you meet again with Mr. Schwartz the next day after this first meeting you've described? A. No, I did not. Q. Did you ever meet again with Mr Schwartz in your office at Newsday to discuss complaints of drivers or the Union or anything related to that? A. No, I did not. 21 Kepko was a single copy sales supervisor at the time of the meeting; at present, he is a transportation field foreman 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of the others alleged to have been present at the meet- ing, Kepko and Muro were called to testify. After testi- fying that Muro was not there, Kepko stated: A. We had walked into the office we sat down and Vinnie said hello to everybody, you know, a little how's it going and what 's new and exciting, I think we had just come off a bonus drive at that time, he asked George if he made any bonus money or whatever and just small talk, you know, and then he had said that he had heard that there was some rumblings with the independents and that George was a friend of Barry's, Barry Mark's, and that maybe Barry had spoken to him about it and had told him some things. And George said that he wasn't a friend of Barry's that he went to the movies with him once and a while and that was it At that point Vinnie dust got up like, "okay, fine," that was the end of the meeting Q. Was George Schwartz' wife mentioned at any point during the course of that meeting? A No, she was not. Q During that meeting did Mr. Bordash ever ask Mr. Schwartz to inquire of other drivers about grievances? A No, he did not. While denying that he had been present at the meeting discussed above, Muro testified that he attended a sales meeting in mid-April, along with other circulation sales supervisors and sales representatives but no independ- ents, at which meeting Bordash discussed the NMDU. Subsequent to this meeting around March 20, Bordash admittedly visited four Newsday depots22 in early April for the express purpose of speaking to the independents regarding their involvement with NMDU According to Bordash, he told the independents that he felt the NMDU was not the union for them; that NMDU be- lieved in industrywide seniority, and that that could hurt the independents at Newsday because employees at other newspapers with more seniority could "bump" Newsday personnel; and, that NMDU's president was in prison. Bordash denied saying that Newsday would go to any expense to avoid dealing with NMDU, or that Newsday was violently opposed to NMDU He did not ask any questions of the independents, nor did he answer any of their questions. Barry Mark testified that he was present at the Riverhead meeting and that he heard Bordash state that NMDU's president was facing a jail term, and that the independents did not need NMDU representa- tion because management could take care of them. Mark then quoted Bordash as saying, "Barry, I hope you know what you are doing."23 Barbara Schwartz testified that she attended the Gear Avenue meeting in Lindenhurst and heard Bordash tell the indpendents that (1) he was aware that the independents were signing cards for NMDU; (2) that he-, Bordash, was not against unioniza- tion but that NMDU was a bad union; (3) that NMDU's president had been locked up, and that several top offi- 22 Riverhead, Gear Avenue (Lindenhurst), Medford, and Queens 23 Bordash does not recall saying that to Mark cials were up on charges of embezzlement, and (4) that in prior dealings with NMDU at Newsday there had been some violence. Joseph Appel, a wholesaler, testified that he attended the Lindenhurst meeting and heard Bor- dash tell the independents that he was aware of their in- terest in NMDU, that NMDU's president was in jail, and that Newsday would do all it could to keep NMDU out. Another wholesaler, Stephen Pulver, confirmed Appel's testimony, as did Appel's brother Jeff, another wholesal- er. William Scott Fowlar, a wholesaler, also testified. He state that he was present at the Lindenhurst meeting and heard Bordash state that he knew NMDU was attempt- ing to organize the independents; that NMDU had a his- tory of corruption and that its president had been con- victed of extortion; that NMDU is a tough union in- volved in vandalism, and he did not want the drivers to get "burned"; and that under NMDU's seniority system, independents at Newsday could get "bumped" by unem- ployed NMDU members. In addition to alleging the above incidents, i e., the meeting in Bordash's office with George Schwartz and Bordash's speeches during his visits to the several depots, as violations of Section 8(a)(1) of the Act, the General Counsel cites the following incidents as additional 8(a)(1) conduct.24 Barry Mark testified that in early April he re- ceived a telephone call from George Schwartz in which the latter told him that he had been requested by man- agement to question Mark regarding NMDU's organiz- ing campaign and what the grievances were that the in- dependents had against management Mark further testi- fied that in the middle of May, in the Riverhead office, Dragon suggested to Mark that he talk to management to try to work out a settlement to corret the grievances that existed. Mark also stated that in June he was ap- proached by Drew Kepko in front of the Riverhead office who suggested to Mark that he not give the com- pany any reason to fire him, Mark responded that he would be careful and the conversation ended.25 Joseph Appel testified that about 3 weeks after Bor- dash's speech, while Crecenzo was helping him load newspapers on Appel's truck, Crecenzo told him that "if the NMDU gets in, all you guys are without jobs." Appel further stated that while the two of them were riding Appel's route about 1 week later, Crecenzo seemed to sympathize with Appel's view that NMDU might do some good; yet, 2 weeks after that, according to Appel, Crecenzo ridiculed Appel's position.26 24 Inasmuch as the names of George Schwartz, John Dragon, Mike Crecenzo , and Mark Fazzio will be used in narration of the incidents, it should be noted that only Schwartz was alleged to be a supervisor in the complaint However, the General Counsel amended the complaint at the hearing to allege that the four named individuals were single copy sales representatives employed by Newsday, and supervisors within the mean- ing of Sec 2(11) of the Act Respondent admits their employment status but denies their supervisory status A discussion of their supervisory status appears later on in this decision 25 Kepko, an admitted supervisor, denies telling Mark that and states that he never discussed NMDU with Mark Mark's testimony was shift- ing and convincing as was his manner in testifying, whereas Kepko im- pressed me as a frank and honest witness and I credit his dental 26 Crecenzo was not called to testify, nor were Dragon and Fazzio NEWSDAY, INC Stephen Pulver testified that on April 6, in the Linden- hurst parking lot, Crecenzo said to him that if the inde- pendents voted for NMDU they would lose their jobs William Scott Fowlar testified that while he was ad- dressing a group of about 20 independents on NMDU matters in the Lindenhurst parking lot at the end of April, Crecenzo, Fazzio, and a third single copy sales representative (Felton) stood on the fringe of the group to listen until Fowlar told them to leave Fowlar also re- lated an incident that took place on April 1 in the same parking lot. He and his brother George were tying up re- turns when Crecenzo wandered by and asked if they knew Barry Mark; when Fowlar and his brother re- sponded in the negative, Crecenzo volunteered the remark, "He is a troublemaker and rabblerouser and he will get in a lot of trouble."27 The General Counsel and NMDU contend that since Schwartz, Dragon, Crecenzo, and Fazzio are supervisors of Respondent, all of the incidents related above which depict acts of interrogation, interference, coercion, or surveillance by them reflect unlawful conduct on the part of Respondent. Respondent contends that these indi- viduals are not supervisors within the meaning of the Act and therefore cannot bind Respondent by their ac- tions Of the four named above, only Schwartz testified at the hearing. He stated that he became a single copy sales representative in March 1980, and that his duties "primarily were signing up new dealers, taking care of problem accounts, doing any collections that were late due to problems as far as accounts, giving credit when credit was due; basically that." In addition, Schwartz tes- tified that he oversaw the independents; he would make sure they had the correct amount of papers He admitted that he did not have the authority to hire or fire inde- pendents, but that on two occasions he recommended the discharge of independents. On cross-examination, howev- er, Schwartz admitted that on one of those occasions he was merely relaying Kepko's instructions, and on the second occasion, Kepko overruled Schwartz. Drew Kepko, a single copy sales supervisor and an ad- mitted supervisor within the meaning of the Act, testified that he was in charge of five single copy sales represent- atives in Suffolk county, including George Schwartz. According to Kepko, Schwartz handled a truck section which dealt with regular dealers, and Schwartz was in- volved with their sales, service, and collection, his day was divided into three parts- one function was to sell new accounts and establish new outlets; his second func- tion was collections from dealers who were past due, or to collect current moneys due from delinquent dealers, and his third function was to service existing accounts, i.e., did they need more papers or could the representa- tive aid them in increasing sales Since Schwartz worked with truck section 2, he had no direct responsibilities to the truckdrivers; they dealt directly with the transporta- tion department. However, on occasion, Schwartz was assigned to work with an independent section On those occasions, Schwartz would assist the independents in loading and unloading bundles from their cars. Acccord- 27 It should be noted that Barry Mark is presently employed by News- day as a driver and earning more money than he did as an independent 91 ing to Schwartz, when an independent was indisposed he was supposed to provide a substitute for himself; when he failed to do so, Schwartz would do the route In addi- tion, when Schwartz was filling in on an independent section, he would check the accuracy of the number of bundles being taken out, and he would see to it that each independent in the section had his run sheet C Respondent's Actions Subsequent to July 1, 1981, and the General Counsel's Allegations Pertaining Thereto We come now to the time when Respondent imple- mented the decision to convert the entire operation to an early press start of 3 a.m. All departments had been alerted, all costs had been analyzed, all transfers within departments had been accomplished, and the plan for re- routing of drivers in the transportation department to ac- commodate all dealers, whether by full-time or part-time drivers, had been completed.28 And so, in late June, Mannix, Respondent's director of employee relations, pursuant to instructions from Wright, proceeded to have discussions with George Tedeschi, president of Local 406, regarding two matters: (1) Mannix sought to get an agreement which would provide for the consolidation of the delivery system and which would permit the use of part-time drivers, since the current contract did not pro- vide for part-time drivers; and (2) advising Local 406 that Newsday was going to a 3 a.m. start, so that the pressmen's unit should be made aware. These discussions resulted in the following agreement, dated July 16, and signed by Mannix and Tedeschi: Newsday agrees that the distribution of bulk news- papers to all dealer accounts and all home delivery distribution locations shall be within the jurisdiction of Local 406 It is understood that additional runs for part-time and/or full-time drivers may be created to deliver to accounts that require special services, including supermarkets, vending machine operations, office building complexes, industrial sites, airports, banks, municipal buildings, hospitals, seasonal outlets or other similar special accounts. Truck drivers shall deliver in bulk to all other dealer accounts where such special services are not required and to all home delivery locations. Part-time drivers shall be paid at the truckdriver's hourly rate and, if they use their own vehicles, they shall be paid a car allowance in accordance with present practices. The normal work week shall con- sist of five (5) days but not less than two (2) days per week Work shifts shall be not less than three (3) hours per day. Overtime shall be paid for any additional days in excess of five (5) days in one week and for more than seven (7) hours in any day, in accordance with the contract The contract pro- 28 See R Exh 63 (memo from Muro and Lawrence to Hirsch and Bordash, dated June 23, 1981) 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visions for holidays and other benefits applicable to part-time employment will apply Mannix further testified that he met with Bordash, also in June 1981, to discuss with him the preparation of a letter to the independents advising them that Newsday was going to an all-employee delivery system, and giving them the opportunity to become employees by going through interviews where jobs were available.29 On July 17, the following letter issued over Bordash's signature and was distributed to the independents: As you probably know, Newsday has been test- ing the possibility of early morning delivery to single copy outlets since February. That test has produced substantially higher sales, and Newsday is going ahead with early delivery throughout Nassau, Suffolk and Queens. This early delivery will begin Monday, July 27, when we start our presses two hours earlier. The most efficient and effective manner to deliver these newspaper on an early basis will be with our em- ployee driver work force. Therefore, the services of independent carters will no longer be required after Sunday, July 26, and the services of independent wholesalers will no longer be required after Sunday, August 2. However, in consideration of your service to Newsday, we would like to give you the opportuni- ty to apply for the employee positions that will be added to the staff as a result of this change in our operation The positions that will be open starting Monday, July 27, will be full-time driver, full-time truck helper, part-time driver and part-time helper Enclosed is an application for employment with Newsday, a supplementary application geared to those specific jobs and a sheet describing the appli- cation procedures. A Newsday representative is ready right now to make an appointment for you for a job interview Interviews are being scheduled for Monday, July 20, and Tuesday, July 21 We will begin to fill these positions later in the week. If for any reason you do not become an employ- ee, you will receive a special payment based on the length of time that you have been delivering News- day This will amount to $200 if you have been an independent deliverer for less than one full year, $400 if you have been delivering between one and three years, and $600 if you have been delivering for more than three years. This payment will be contingent upon fulfillment of your responsibilities through Sunday, July 26, if you are a carter, and Sunday, August 2, if you are a wholesaler. We hope that you will take this opportunity to apply for employment with Newsday. Pursuant to this letter, applications were received from the overwhelming majority of independents, the applica- tions were reviewed by the employee relations depart- 29 Until the Regional Director issued his decision in Case 20-RC-5387 on July 22, Respondent had always contended that the independent driv- ers were independent contractors, not employees of Newsday ment, and interviews were arranged and conducted during the week of July 20 by the employee relations de- partment and the transportation department.30 The full- time positions were filled first and then the part-time po- sitions. At the conclusion of the interviews approximate- ly 67 driver positions were filled by independents, and 25 other full-time driver positions were filled by full-time and part-time helpers that worked in the transportation department. Some of the independents did not seek em- ployment, and others who were acceptable refused the type of position offered them because of distance prob- lems or time problems. Respondent contends that only three independents were refused employment by News- day: Jeffrey Appel, Joseph Appel, and William Richards. And these, plus Stephen Pulver, are the subject of fur- ther discussion, infra. On July 26, Newsday terminated the independent carters, on July 27, Newsday moved its press time from 5 to 3 a.m. and fully implemented the new program; on August 2, the last of the independent wholesalers were terminated. The General Counsel contends that Newsday engaged in the above-described conduct in order to eliminate the unit of independents, so as to avoid the possibility of being required to recognize and bargain with NMDU as the unit's representative, should NMDU be successful in any forthcoming election. Also, the General Counsel contends that the termination and later hiring of the in- dependents resulted in their being assigned more onerous or less desirable routes than they had previously, and subjected them to less earnings as well. And, finally, the General Counsel contends that the two Appels, Rich- ards, and Pulver were not offered employment because they participated in the representation hearing in Case 29-RC-5387.3 i These actions of Newsday, the General Counsel contends, were violative of Section 8(a)(1), (3), and (4) of the Act The one remaining factual variation involves the four employees alleged by the General Counsel to have been denied reemployment as drivers. Jeffrey Appel testified that he worked for Newsday as an independent whole- saler from September 1979 until his services were no longer required as stated in Bordash's letter supra. While so employed, he attended an NMDU meeting on March 27, and was present on April 3, at a meeting addresed by Bordash. He also attended, but did not testify at, three sessions of the representation proceeding before the NLRB in May and June.32 Appel stated that he imprint- ed, on T-shirts and bumper stickers, the phrase, "God bless the NMDU and Artie too," and, along with his brother Joseph and other independents, distributed them 30 Approximately 86 independents were interviewed for approximately 90 jobs, these jobs consisted of full-time driver positions, 5 days a week, and 5-day and 2-day part-time driver positions Also invited to apply were other Newsday employees, including full-time and part-time helpers in the transportation department Management provided vehicles for full- time dnvers, whereas part-time dnvers used their own vehicles 31 Respondent admits not offering employment to the two Appels and Richards, but claims it offered employment to Pulver 32 Eugene Mighomco, an independent carter, was called as a witness by the General Counsel, and testified that he, too, attended the NLRB representation hearings along with about 10-15 other drivers. NEWSDAY, INC to the drivers 33 When Appel was notified that he was to be terminated pursuant to Bordash's letter, he filed an employment application with Newsday and was inter- viewed by Barbara Sanchez, Respondent's employment manager On direct examination, the entire extent of Appel's testimony regarding the interview was that San- chez asked him what type of vehicle he drove, whether he had a geographic preference, whether he wanted weekday or weekend work, and how much money was made by part-timers. On cross-examination, Appel admit- ted that he only indicated on the application that he wanted part-time employment, but that Sanchez told him that he did not have to limit himself. In fact, on redirect examination, he admitted that Sanchez raised the issue of part-time work and told him, "there is full and part-time available," and she changed it accordingly And, on cross-examination, Respondent elicited the fact that Appel had several moving traffic violations on his li- cense, and introduced Appel's employment application into evidence (R. Exh 4) on which he listed the viola- tions, Sanchez stated that when she reviewed Appel's ap- plication she noted that in addition to his having had several driving violations, that he had worked previously for Newsday for less than a month back in 1976. Sanchez continued as follows. I was particularly interested in why he left after two or three weeks and confirmed the reasons for his leaving. He did tell me he resigned, and I could ask Pete Marcau about this, and he said that one of the rea- sons was poor salary and commissions, and we had further discussion about it. It was really unclear in my mind, since he knew pretty much what the salary commissions were before he took the job, or at least I assumed he did, what the reasons were; and he further explained he didn't like delivering to Roosevelt. I said to him, "What do you mean, Roosevelt?" He said, "Well, I don't want to deliver to a town like that or to a neighborhood like that " I said, "What do you mean, a neighborhood like that?" He said, "A nigger neighborhood like that."34 Joseph Appel's testimony was straightforward. He stated that he began working for Newsday in the summer of 1975 as a wholesaler For a brief period in 1977 he became a district manager, but went back to being a wholesaler in 1978 He attended the NMDU meeting on March 27, and was present on April 3 when Bordash addressed the independents in Lindenhurst. Al- though he was not called to testify, he did attend about a half a dozen sessions of the NLRB representation hear- ing He aided his brother, Jeff, in distributing T-shirts and bumper stickers, and he wore a T-shirt to work and attached a bumper sticker to his car. At his reemploy- ment interview, he stated a preference for full-time weekday work On cross-examination, Appel was shown 33 Appel stated that he wore the T-shirt to work and put the bumper sticker on his car 3 4 Appel vehemently denied this accusation 93 his employment application (R. Exh. 3), in which he listed two traffic violations, one for speeding in March 1980, and one for tailgating in March 1981 The latter violation had been plea-bargained down from a speeding violation. Also on cross-examination, Appel acknowl- edged that during the interview he expressed a prefer- ence not to work in Roosevelt or other black areas. In his words, "It was not my idea of fun." William Richards was an independent carter since No- vember 1978. Beginning in March, he attended six or seven NMDU meetings, and was present at one session of the NLRB representation proceeding, but did not tes- tify. As a carter, Richards took his run out 7 days a week. However, on July 18, his truck broke down while he was doing his route and he called into the terminal for assistance, a single copy sales representative was dis- patched and helped Richards finish the route. The next day, Richards' truck was being repaired so the same rep- resentative picked Richards up at his home and they did the route together. On July 20, Richards reported to the terminal without his truck and was told he could not work. At this point, having received the Bordash letter, Richards filled out the application for reemployment and was interviewed by Sanchez who told him that he was not entitled to the severance pay referred to in Bordash's letter because he no longer was employed by Newsday However, that same day management relented and told him that if he could get a vehicle and make his run for the week, starting Tuesday, July 21, he would be eligible for the severance pay. This he did and he received the severance pay. Stephen Pulver has been a wholesaler for Respondent since July 1973 As stated above, Pulver attended the April 3 company meeting at which Bordash spoke and his testimony confirms what Bordash admittedly said. On April 16 Pulver signed an NMDU authorization card at an NMDU meeting, and subsequent to that wore one of Appel's T-shirts regularly to work. He states that he went to several depots speaking out in favor of NMDU and urging the drivers to come to the hearings. He at- tended two NLRB representation hearings, and states that at one time or another as many as 40 independent drivers from all of the depots were present He also states that three of the drivers testified and that all three are presently working for Newsday. After receiving the Bordash letter on July 20, Pulver filed his application for reemployment and was interviewed by Gibson and Ray- mond, both of whom told Pulver that only 5-day and 2- day part-time jobs were available, and that he would be contacted in a few days Pulver admits contacting News- day's employment office on August 3, and being told that there were still weekend jobs available, but he never contacted the office after that. Sanchez testified that she called Pulver's home on August 5, and spoke with Stephen's brother William.35 She told William that she was looking for Steve and that it was important that Steve contact her; she left her name and number but Steve did not call back. Sanchez as William Pulver had also been a wholesaler for Newsday He also had applied for reemployment, and was given a job by Newsday The two Pulvers lived together and had the same phone number 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called again on August 7, and again spoke to William. She said, "I'm still looking for Steve." William respond- ed, "I didn't give the message to Steve He's not home." According to Sanchez, William said that Stephen had gone away and that he was unavailable for work. How- ever, Sanchez states that she said, "If you hear from him, have him call me." By Stephen Pulver's own admission, supra, he did not contact the employment office after August 3, and William was not called to testify Analysis and Conclusions The primary issue involved in the instant case and the issue of most concern to the Charging Party is whether the consolidation of Newsday's delivery operation violat- ed the Act. The General Counsel contends that the reor- ganization of the transportation department was an at- tempt to thwart the efforts of NMDU to organize and represent the independent drivers. Respondent contends that long before NMDU appeared on the scene it had begun a study as to the feasibility of expanding its single copy dealer sales program by going to an earlier press time, and of combining its delivery operation to make for more efficiency and to satisfy the desires of Local 406. The uncontroverted evidence establishes that such a study had its beginnings in the summer of 1980, and pro- gressed throughout the fall and winter into 1981; and, as the months passed, refinements in the plans were institut- ed and results were reported by all departments involved right up to the time of the commencement of the pilot program on February 23, 1981. While the General Coun- sel's evidence shows some slight employee interest in the NMDU in January and February, its own witnesses state that NMDU's first meeting with the independents did not take place until March 20, 1981, long after Respond- ent's study got underway, and almost a month after the commencement of the pilot program. And so, with abso- lutely no evidence to show knowledge on the part of Re- spondent of the very existence of NMDU prior to Feb- ruary 23, the General Counsel must concede that Re- spondent's motives in studying a change in its operation were not grounded in an antiunion attitude. In fact, I find that, at least up until March 20, 1981, Respondent's motive was prompted solely by economic and efficiency reasons. And, by applying the same reasoning, I find that the employment of Local 406 drivers in the pilot pro- gram commencing on February 23 was not prompted by any anti-NMDU posture, since it had no knowledge of NMDU's presence, but rather was done for two reasons: It sought more efficiency in a consolidated delivery system by implementing the program with the proper personnel in place, and it sought to blunt Local 406's complaints regarding its claims to all the work in the transportation department. And so, we see that the General Counsel's case actual- ly starts around March 20, 1981. It is at this point, ac- cording to the General Counsel, that Respondent, now aware of NMDU's presence, embarks on a campaign to vilify NMDU, and to coerce, restrain, and interfere with its employees' Section 7 rights. The General Counsel al- leges that Respondent sought to use a supervisor, George Schwartz, to accomplish its purpose. However, lined above, I conclude that neither Schwartz, nor any of the other single copy sales representatives, is a super- visor within the meaning of Section 2(11) of the Act. Schwartz does not have the authority to hire or fire em- ployees, nor can he effectively recommend such actions. In addition, he does not responsibly direct employees; his duties are directed primarily to sales to vendors, and his only contact with drivers is to aid them in getting their deliveries out on time, not to supervise them. And so, the allegations which rely on the conclusion that Schwartz and other single copy sales represenatives are supervisors of Respondent must fall. Accordingly, all al- legations relating to acts committed by Schwartz, Dragon, Crecenzo, and Fazzio shall be dismissed. However, if in fact Schwartz is not a supervisor, as I have found, then he is an employee of Respondent enti- tled to the protection of Section 7 of the Act, and the allegations relating to Bordash's interrogation of Schwartz regarding NMDU must be reckoned with. For while an employer can compel employees to come for- ward with information during an investigation of miscon- duct,36 it cannot compel employees to give information regarding protected activities. Accordingly, consider- ation must be given to the evidence surrounding the Bor- dash-Schwartz meeting to determine whether an employ- ee's rights have been violated even though not so alleged in the complaint. Schwartz stated that he had been called into Bordash's office and that Bordash in the presence of Muro and Lawrence told him that he had heard talk about grievances among the independents and that since Schwartz was a friend of Barry Mark would he please speak to Mark and to Schwartz' wife to find out what the grievances were. Also, there was discussion about Schwartz' wife's job as a wholesaler, and whether Schwartz had heard of the NMDU Schwartz denied being a friend of Mark and denied knowledge of NMDU. Aside from disagreeing on who was present at the meeting, Bordash did state that he was concerned about rumors he was hearing regarding grievances and did ask Schwartz if he was a friend of Mark's, but, when Schwartz denied the friendship, Bordash saw no point in continuing the conversation and terminated it. This testi- mony is confirmed by Kepko. I credit Bordash and Kepko. While it is clear that Bordash attempted to gain some knowledge of the independents' grievances from the Schwartz-Mark friendship, if it existed, Schwartz' negative response to that question left nothing further to discuss. It certainly appears unlikely to me that manage- ment, upon getting such a rebuff, would seek to gain in- formation from the husband of an independent driver re- garding the driver's grievances towards management. And so, I must draw the conclusion that Schwartz, an admitted cohort of NMDU, expanded on the contents of the meeting beyond its true confines. Under the circum- stances, I do not find that Schwartz' Section 7 rights, as an employee, have been violated. The General Counsel further contends that on various dates after March 20, Respondent, through Bordash, ac- tively engaged in a campaign of interrogation and coer- from the evidence presented at the hearing and as out- 36 See St Louis Health Center, 248 NLRB 1078 NEWSDAY, INC cion by going from depot to depot lecturing the inde- pendents on the faults and dangers of NMDU From the evidence presented above regarding these meetings, I find a general agreement exists as to what was said by Bordash , and I find none of it violative of the Act 37 Bordash impressed me as being a truthful witness and I credit his version of the meetings . He told the independ- ents that NMDU was no good for them and that its president was corrupt No witness was produced by either the General Counsel or NMDU to refute Bor- dash's statements . Accordingly , I find these statements not only to be expressions of opinion by Bordash and in this context to be protected by the free speech provisions of Section 8(c) of the Act,38 but in the absence of evi- dence to the contrary , truthful as well . And so, I shall dismiss the allegations relating thereto Having previously found that Respondent 's actions prior to March 20 regarding its plan to change to an ear- lier press time and to consolidate its delivery system was for economic and efficiency purposes , I am now con- fronted with the General Counsel's allegation that the actions engaged to by Respondent about July 20 in which it notified the independents that it was discontinu- ing their operation was to eliminate the separate bargain- ing unit in order to avoid the possibility of being re- quired to recognize and bargain collectively with the NMDU. At this point in time, Respondent can no longer claim that it did not have knowledge of NMDU 's organi- zational effort, for NMDU had filed its petition on April 22, a hearing had been held in Region 29, and a Regional Director's decision was awaited by the parties con- cerned. However, Respondent contends that the imple- mentation of its plan in and about July 20 was merely a culmination of all its efforts in that direction which saw its beginnings long before NMDU's organizing efforts began, and that the timing of the change was based solely on business factors wholly unrelated to NMDU's campaign . While I agree that the events as depicted by the General Counsel raise suspicions about the lawfulness of Respondent's conduct, I believe that the evidence pre- sented by the General Counsel fails to prove that Re- spondent acted unlawfully. To the contrary , I find that Respondent's change in operations was not motivated by discriminatory reasons, but rather by the economic ex- igencies of the situation . The uncontroverted evidence presented by Respondent showed , beyond a doubt, a compelling economic reason for Respondent to take the action it did, albeit the timing and the secrecy may have tinged the move, in the eyes of the NMDU , with a possi- ble discriminatory motivation Nevertheless, it is my firm belief that no such discriminatory motive existed. The evidence clearly established that Respondent contemplat- ed the elimination of the independent driver operation at least for several months prior to NMDU 's organizational 37 The only disagreement involved the question of whether Bordash said that Newsday would go to any expense to avoid dealing with NMDU Of the six witnesses called by the General Counsel on the issue, three (Joseph Appel , Stephen Pulver, and Jeff Appel) attribute said remark to Bordash, whereas in addition to Bordash's denial , Barbara Schwartz, Barry Mark , and William Scott Fowlar do not quote Bordash as having said it 38 See Pennysaver & Ampress, 206 NLRB 497 (1973) 95 effort, and instituted the pilot program with Local 406 drivers, also before the advent of NMDU on the scene. The success of the pilot program convinced Newsday that a change had to be made . No longer was there to be a dual delivery system with its unnecessary double deliv- ery to depots ; uniformity in its collection and returns procedure would now be achieved ; greater efficiency in deliveries would be accomplished , and, above all else, the bottom line on the balance sheet would reflect a greater economic return to Newsday. For these reasons, I am convinced that Newday's action in terminating the independent driver operation was not motivated by un- lawful considerations , but was grounded in solid business acumen. Accordingly, I shall dismiss the allegation which contends that the elimination of the independent drivers unit was discriminatorily motivated. Concomitantly with this ruling , a ruling regarding the challenged ballots is required . As stated above, pursuant to the Regional Director's decision in Case 29-RC-5387, issued on July 22, which determined that the independ- ent drivers were employees of Newsday and constituted a separate appropriate unit, an election was conducted on August 20 at which Newsday challenged all of the em- ployees on the list contending that they were not in the unit; the ballots were impounded and, in a supplemental decision, the Regional Director consolidated the repre- sentation proceeding with the unfair labor practice pro- ceeding inasmuch as a resolution of the discriminatory discharge issued would also resolve the challenge status of the independent drivers. Thus, since I have found that no discriminatory motivation prompted the dissolution of the independent driver unit and, in fact , such a unit of employees no longer exists, it follows that whatever voting rights the terminated employees may once have had, have been extinguished and the challenge to their ballots is sustained . Belatedly, NMDU's counsel at the close of the hearing herein put forth the argument that since an overwhelming majority of the independents had been rehired, a separate, discernible unit of independents still existed and that their ballots should be counted to determine who their collective -bargaining representative should be, if any. I do not agree with that view . The evi- dence is quite clear that the rehired employees have been integrated into one overall delivery system; all are sub- ject to the same supervision; all perform the same work subject to the same wage scale ; all work pursuant to the Local 406 contract which sets forth the hours and work- ing conditions; routes have been changed to accommo- date both drivers and management; and no longer are de- liveries to single copy sales dealers limited to the former independent drivers, but are also performed by Local 406 drivers . Under the circumstances , I do not find a separate unit of independents in existence which would warrant the counting of their ballots. One further contention of wrongdoing is alleged by the General Counsel concerning four former independent drivers39 who allegedly were not rehired by Respondent because of their union activity on behalf of NMDU in violation of Section 8(a)(3), or because, as alleged in 39 Joseph Appel, Jeff Appel, Stephen Pulver, and William Richards 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paragraph 21 of the complaint, they filed charges and gave testimony under the Act, in violation of Section 8(a)(4) of the Act As to the latter, the record is com- pletely void of any evidence to show that any of the named four did either, i.e, file charges or testify. The General Counsel did establish that all four attended ses- sions of the representation hearing, but so did any number of employees. On that basis, the 8(a)(4) allega- tion shall be dismissed. With regard to the 8(a)(3) allegations, I do not find that the facts as depicted above, and as discussed below, establish any, discriminatory reason for the Respondent's failure to rehire the two Appels and Richards As to Pulver, I am convinced that Sanchez called his home twice, and that either his brother William did not give him the messages or Stephen chose to ignore them San- chez impressed me as a straightforward witness with no apparent reason to lie; and the General Counsel chose not to call William Pulver to rebut Sanchez' testimony. Accordingly, I credit Sanchez and I find that Respond- ent did attempt to offer Stephen Pulver employment, but that for one reason or another Pulver declined it. The only testimony elicited by the General Counsel from the Appel brothers, other than that referred to above in my discussion of the 8(a)(4) allegation, that could possibly show that they supported NMDU, as al- leged, is the fact that both wore the T-shirts to work that were designed by Jeff and both distributed them to other independent drivers. Thus, it can be inferred that Respondent had knowledge of their support for NMDU, but by the same token the Respondent had knowledge of many other independent drivers, who were subsequently rehired, who also wore the T-shirts and attended the NLRB representation proceeding. With no more than that to go on, I am constrained to agree with the Gener- al Counsel that Respondent was discriminatorily motivat- ed in refusing to rehire the Appel brothers. I draw this conclusion again from the testimony of Sanchez, who credibly testified that the traffic infractions committed by the Appels, and admitted by them, was a deterring factor in rehiring them. This, coupled with her testimony re- garding their racial attitude, which I also credit despite Jeffrey Appel's denial of the quoted racial slur, forms the basis for my belief that Respondent gave little or no thought to their miniscule union activity in determining not to rehire them. As the Board stated in Wright Line, 251 NLRB 1083, 1089 (1990): First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Even assuming that the General Counsel has made such a prima facie showing in the instant case, I believe that the Respondent has more than amply demonstrated that its paramount concern was the attitudes and abilities of its employees, and that in light of what the job inter- views revealed about the Appel brothers, the refusal to rehire would have occtrred even in the absence of the protected conduct. I conclude, therefore, that Respond- ent has not violated the Act by refusing to rehire Jeffrey and Joseph Appel. The evidence presented by the General Counsel on behalf of William Richards to show discriminatory moti- vation by Respondent in refusing to rehire Richards is so woefully lacking in content as to have me conclude that no violation of the Act occurred. It is unrebutted that Richards attended several sessions of the representation proceeding but did not testify; that is the sole piece of evidence that the General Counsel offers and from it ex- pects me to infer that Respondent thereby knew of Rich- ards' NMDU leanings and sought'to punish him for it by refusing to rehire him. The fact that many other inde- pendents also attended those sessions and were later re- hired as drivers does not seem to phase the General Counsel. It is true, and the cases are legion, that if the General Counsel can show disparate treatment on the part of the Respondent, unlawful action can be estab- lished. But why Richards? Respondent contends that Richards was not rehired because he was not dependa- ble; he was having troubles with his truck and Respond- ent felt it could not rely on him. Whatever the reason, it is not incumbent on Respondent to disprove an ethereal allegation unless and until the General Counsel has pre- sented some suitable evidence to establish disparate or discriminatory treatment. This, I believe, the General Counsel has failed to do; he has not, in my mind, met his burden of establishing a prima facie case with regard to Richards. On that basis, I shall dismiss that allegation in the complaint. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Newspaper and Mail Deliverers Union of New York and Vicinity, and Local 406, International Printing and Graphic Communications Union, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act have not been supported by the evidence 4. The unit of employees designated by the Regional Director, in conection with the representation election held on August 20, 1981, as being appropriate for pur- poses of collective bargaining, ceased to exist prior to the election day, and the persons so designated were no longer in the unit on August 20, 1981 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed40 40 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses NEWSDAY, INC 97 ORDER The complaint is dismissed in its entirety. IT IS FURTHER ORDERED that the challenges to the bal- lots cast at the representation election held among Re- spondent's employees on August 20, 1981, are sustained.