Macomb Daily, The, A Division of Panax Newspapers. Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1982

260 N.L.R.B. 983 (N.L.R.B. 1982)

THE MACOMB DAII.Y
The Macomb Daily, A Division of Panax Newspa-
pers, Inc. and Robert D. Campbell. Case 7-
CA-18315
March 16, 1982
DECISION AND ORDER
BY MEMRFRS FANNING, JENKINS. ANI)
ZIlMMiRNIAN
On December 11, 1981. Administrative Law
Judge Phil W. Saunders issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief and
the Respondent filed a responding brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel has excepted to certain credibilitr findings
made by the Administrative L au Judge It is the 1Board's established
policy not to overrule alln admillisiratisc la' judge's resolulions wilh re-
spect to credihility unless Ihe' cltar preponder ance of a:ll of the rtelcx nl
evidence conuvinces us that thie ictsoillions aire in.corrc- i .Siandard [D)r
Wall Products, Inc. 91 NLRB 544 (195(t), end 198 1:2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing his findings
DECISION
STATINMEN r OF IHE CASEi
PHIL W. SAUNDERS, Administrative Judge: Based on a
charge filed by Robert D. Campbell, herein called the
Charging Party or Campbell, a complaint was issued on
November 13, 1980, against The Macomb Daily, A Divi-
sion of Panax Newspaper, Inc., herein called Respondent
or the Company, alleging a violation of Section 8(a)(1)
and (3) of the Act. Respondent filed an answer to the
complaint denying it had engaged in the alleged matter,
and the Respondent also filed a brief in this matter.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
F INDINGS 01 FACT
I. I HI BUSINESS 01 RESPONI)ENTr
At all times material herein, Respondent has main-
tained its principal office and place of business in Mount
Clemens, Michigan, and also operates other facilities
throughout the State of Michigan engaging in the publi-
cation, sale, and distribution of a daily newspaper; Re-
spondent's facility located at Mount Clemens is the only
facility involved in this proceeding.
During the year ending December 31, 1979, which
period is representative of its operations during all times
material hereto, Respondent, in the course and conduct
of its newspaper publication, had gross revenues in
excess of $200,000, subscribed to the United Press Inter-
national, and purchased newsprint valued in excess of
$10,000 from suppliers located outside the State of
Michigan.
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE I ABOR ORGANIZATION INVOI.VEI)
Newspaper Guild of Detroit, Local 22, The Newspa-
per Guild, AFL-CIO, herein called the Union or Local
22, is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act.
i1i. THE AL.LEGED UNFAIR l.ABOR PRACTICES
It is alleged in the complaint that on or about April I,
1980, Respondent, by its agent Ronald Hedley,' issued a
written reprimand to its employee, Robert D. Campbell,
and that Respondent took this action because of Camp-
bell's membership in, sympathies for, and activities on
behalf of the Union.
Robert Campbell has been a staff reporter on the
Macomb Daily for the past 6 years, and the reprimand at
issue herein is the only discipline Campbell has received
during his tenure with Respondent.
During the winter and spring of 1980, Respondent and
Local 22 were engaged in contract negotiations, and an-
other bargaining session was scheduled between the par-
ties on April 1, 1980. During this period of time, Robert
Campbell was vice chairman of the bargaining unit for
Local 22 and was a member of their negotiating team.
Campbell testified that when he arrived at work, about
9 a.m. on March 31, 1980, he noticed a paper of some
kind in his typewriter and upon reading this document
discovered that it was a letter directed to employees pro-
posing a 6-month wage freeze, and the letter was dated
as of April 1.2 Campbell then called the administrative
officer for Local 22, Donald Kummer, and told him
about the letter, and then explained to Kummer that
since they were being asked to take a wage freeze, it
might he possible to "find out" the status of management
employees who had accepted a wage increase 3 months
Ronld HeCdlCe is the publiher and chief executive officer for Re-
sponlldnl
:Se ( ti I xh 2
260 NLRB No. 134
983
I)8LC ISIO(NS ()0 NA I I()NAL .ABO()R RIl.ATI()NS H()OARI)
earlier, and in reply Kummer then told Campbell to go
ahead and to find out what the increase was. On the
morning here in question, Campbell also talked to a
former officer of Local 22. employee Chuck Thomas,
about this matter and informed him that he was going to
ask somebody in the bookkeeping department if they
were aware of whether management employees had re-
ceived an increase.
Campbell then approached employee Ellen Wojnar,
Respondent's bookkeeper, and requested that she check
the records in the bookkeeping department and to pro-
vide him with the percentage salary increase which man-
agement personnel received in January 1980.
The credited evidence shows that Campbell requested
this salary information around lunchtime when Nan
Fraser, the supervisor of the payroll and bookkeeping
department, was out of the office and on her lunchbreak.
Ellen Wojnar told Campbell that she did not have the in-
formation he was requesting and would not give it to
him even if she had such data. Campbell then replied
that if she knew how "management was trying to screw
her," she would give him this information. Wojnar testi-
fied that she was angry and upset as she could have lost
her job over the incident, and as a result advised Fraser
what had occurred when Fraser returned from lunch.
Wojnar stated that neither Campbell nor anyone from
the Union had ever requested such information previous-
ly.3
When Nan Fraser returned from her lunchbreak on
March 31, she immediately noticed that Wojnar was visi-
bly disturbed, and Wojnar then explained to Fraser that
she was upset because Bob Campbell had come in while
she (Fraser) was out of the office and asked that he be
provided with the percentage increase which manage-
ment people received in January 1980-it is clear that at
no time did Campbell request of Fraser the information
he sought from Wojnar-Nan Fraser then immediately
went to the publisher and chief operations officer,
Ronald Hedley, and informed him that Robert Campbell
had been in the bookkeeping department during her
lunch hour and had asked Ellen Wojnar what percentage
salary increase exempt employees received in January
1980, and that Wojnar had refused to give Campbell the
information he requested.
Shortly thereafter, Hedley talked to Campbell and ex-
plained to him that he had engaged in "gross miscon-
duct" in attempting to induce a bargaining unit book-
3 II appears from this record that Nan Fraser routinely handles requests
for relevant infiormation from the several union representatives and o(ffi-
cers w ho have employee units with Respondent that she is responsible
for checking authorization cards of nec employees and ansswering ques-
tions pertaining to insurance and fringe benefit claims and for insuring
that employees are properly placed on the salary schedule, and has also
dealt with Campbell on different occasions in the past by providing him
with information pertaining to bargaining unit employees Campbell testi-
fied that he vwould not ha'e requested Ellen Wojnar to give him salary
information of nonbargaining unit personnel. but for Hedley's memoran-
dum or letter to employees dated April I. and which summarized Re-
spondent's proposals to the Union (G C Exh 2). At this juncture in ne-
gotiations, Respondent had proposed a 6-month extension of the current
contract, and the April 1 letter signed by Hedley was sent to and re-
ceived by Union Administrator Kummer just prior to a bargaining session
scheduled between the parties on April I, atid the letter swas then subse-
quently distributed to employees i, their paychecks on April 2 or 3
keeper (Wojnar) to divulge salary information pertaining
to exempt personnel-that in so doing he had jeopard-
ized Wojnar's job-and if she had given out this informa-
tion, Wojnar probably would have been demoted or pos-
sibly discharged for divulging confidential information.
Hedley testified that Campbell responded by admitting
he had made a mistake and then told him that he
"shouldn't have asked for it." Following this discussion,
Hedley then issued Campbell a formal written reprimand
dated April 1, 1980. The reprimand letter stated, in part,
that Campbell was being reprimanded for waiting until
the payroll supervisor was out of the office before ap-
proaching an employee and requesting her to divulge
confidential financial information which pertained to
exempt executive staff.'
This record shows that at no point during any of the
three or four bargaining sessions prior to the March 31
incident did Campbell or any representative of the Union
request management salary information at the bargaining
table, and the April I letter of reprimand here in ques-
tion is the only time Hedley has disciplined a bargaining
unit employee for the reason specified in the letter.
As pointed out, article IV of the current collective-
bargaining agreement, which contract was being negoti-
ated at the time Campbell received his reprimand, speci-
fies the type of information which Respondent must
make available to the Union,5 and it appears that article
IV of the current contract is virtually identical to a pro-
vision dealing with this subject matter contained in the
predecessor contract. Moreover, Hedley testified that
under normal procedures, Campbell should have request-
ed information from Payroll Supervisor Nan Fraser;
stated that information requests were processed through
her and she was the proper supervisor to go to for such
information. Hedley also stated that Campbell was fully
aware of the proper channels of communication between
the Union and Respondent relative to requesting infor-
mation for contract administration and bargaining pur-
poses.
This record shows that in September 1980 Campbell
came into Hedley's office and requested that the written
reprimand here in question be withdrawn from his file. It
appears that Campbell had learned that the Macomb
Daily was going to be sold, and he did not want a new
employer to see a reprimand letter in his file.
It is also noted that although the Campbell reprimand
may not have been discussed at the bargaining table, it
did come up in outside discussions between Hedley and
Union Administrator Donald Kummer, but no grievance
was filed. Moreover, the parties successfully negotiated a
new contract, and which included a pay increase for bar-
gaining unit employees.
At the hearing before me, Hedley testified that he con-
sidered Campbell's attempt to obtain executive salary in-
formation as "surreptitious" and "deceptive," and this
was the sole reason for the reprimand.
The General Counsel argues that an employee in Ellen
Wojnar's position is not considered a confidential em-
ployee as the Board uses that term, but the question of
'See C C Exh 3
" Resp Exh 1.
984
THE MACOMB DAILY
whether certain information is restricted information-is
a different question in this case, and under Board law we
are told that the criterion is not access to labor relations
material, but rather the confidential relationship between
the employee and the person exercising managerial func-
tions and moreover, that ultimately, the instant case rests
on the right in Section 7 itself secured to employees-the
right to assist labor organizations and to engage in other
concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection.
It is Respondent's position that the reprimand of April
I was based on Campbell's attempt to circumvent proper
channels of communication to obtain confidential and fi-
nancially sensitive data on executive salaries. and Re-
spondent argues that Campbell was disciplined solely for
deliberately waiting until Nan Fraser took her lunch-
break and then deviously attempting to obtain confiden-
tial information, and that the factual issue of whether
Campbell was engaged in deceptive conduct turns large-
ly upon the timing of his visit to Ellen Wojnar, and
points out that in this respect the testimony of Campbell
and Respondent witnesses seriously conflicts.
Respondent further submits that Campbell was not en-
gaged in protected concerted activity in requesting the
financially sensitive information from Wojnar without
first attempting to obtain such information either at the
bargaining table or through Nan Fraser consistent with
his past practice of obtaining information from the em-
ployer.
Final Conclusions
It is a well-established principle that an employer vio-
lates the Act when it discharges (or disciplines) an em-
ployee who it knows was engaged in protected activity
even though the employer was motivated by a good-
faith, but mistaken, belief that the employee was guilty of
misconduct during the course of that activity. Thus, if
Campbell had innocently obtained the information and
then discussed it with his fellow employees, his conduct
would be both concerted and protected and his dis-
charge (or discipline), if based on an honest, but mistaken
belief that he had wrongfully obtained said evaluation,
would be unlawful. However, if Campbell had wrongfully
obtained the information, his activities would not be pro-
tected the Act and his discharge or reprimand for engag-
ing in such conduct would not be unlawful.6
I am in agreement that the record in the instant case
warrants the conclusion that Campbell intentionally
waited until Nan Fraser was absent from the bookkeep-
ing office before he approached and contacted Ellen
6 In Bulhok',. 251 NLRH 425 (19lt)1 supplementing 247 NI RH 257
(1980). he Hoard held that an employer did not x iolate Sec 8(a)( l) .s hen
it discharged a ,alesperson whio had wrongftull obtained confidenltial em-
ployee performance eNalualilns The dltcharged emplosee had been IIt,-
satisfied with her job e.aluation and had discussed it, coteltntrh itlh other
employees in her department The HBoard cintcluded that The i tla proper-
ly terminated for the unauthorized posseslion alid dlclur Iire of colfiden-
tial contents of her ol n and cov. orker' ex aluatlion, Slmitarlk. in ( ,'/tlal
Corn Procesing C(ompany. a Divirion !/ Stanidad Brunddi I, ,.rpnltd. 251
NLRB 622 t1980). the Board upheld the emploher'n decilon 1t gi\c a
bookkeeper employee a cholce of quitting or being fired fior ha.ling re-
vealed the cormpar', wage stcale ia a unioll meellng The \tage .altc i11
this case uas deemed confidential
Wojnar. Nan Fraser, Ronald Hedley and Ellen Wojnar
all consistently and credibly testified that Campbell made
his request during lunchtime. Campbell claims that he
contacted Wojnar in the bookkeeping department around
10-10:30 a.m. on March 31. However, the General
CoLuiscl made no attempt to rebut the testimony of Re-
spondent's witnesses regarding the timing of Campbell's
conversation w ith \Wojnar, and even though Campbell
was called as a rebuttal witness. As pointed out, Camp-
bell's silence on rebuttal, in the face of clear and un-
equivocal testimony that he approached Wojnar during
the lunch break, strongly supports the conclusion that he
purposely timed his visit to coincide with Nan Fraser's
absence ' Moreover, from past dealings with manage-
ment, Campbell was well aware that Fraser was the
proper person to contact in requesting such information,
as aforestated.
In the final analysis, there is no showing in this record
that Campbell was reprimanded for any reasons other
than those stated in Hedley's April 1 letter. As further
indicated, this record is also devoid of any testimony that
Hedley singled Campbell out for discipline because of his
status as a union representative. During the period here
in question. Respondent was engaged in serious negotia-
tions with Local 22, and the issue of what increase, if
any, executive personnel had received was not raised by
the Union at the bargaining table prior to April I. and it
is quite clear from Hedley's testimony that he expected
any request for such information would come across the
table and not in the underhanded fashion in which
Campbell went about it. In fact, not until the April I
bargaining session did Kummer ask Hedley whether
exempt employees had received an increase, and then
Kummer did not ask how much the increase was. Prior
to this meeting no supervisory or managerial person re-
ceived a request from the Union for any information per-
taining to salaries of exempt staff. Indeed. Kummer testi-
It ,h, ,ld be noted that all facil ts llnd herein are based on Ihe re ord
i; l,itle iptll tit' b oher.atlion tf the Illit ,et the credilhlllt r .t ilu-
ori e hcr ill hatle beell deri s e tl f nm .i ret ites of the entilre Itetlmo.nal
re.o rd antd exhbit, v . ilth duAc regard.l fior the logic and prohabilIt,, Ihe de-
nleanolr fi the .illne'es, alid the teacthlng nit \:. LRB 4 ailoht .. lanu-
jlactutrin (Cormpant & l.ognvttl/,ill Pnt (' t . h9 i' S 4014 { lh2) A, I.t
thone Alincne,, tc tiflng itt cotntradictilon of the finding, herein. Iheir
testInltmoi has been dli credited. either as having been Irl onflict allh the
lestinme of relialhle v..itnene, or bhcal.,use it was in and of itself' incredible
and un-, rih , of belief I4/ , trtnor,,.it ha, teen, reviewd and elrhcd Inl he
light !/ if,;" t ntrl ret ti rd In Ihe itnrtalit cae it should he nolted Ih.a Canrp-
hell co,' :3adcted himnCelf In relating cxactll "hat questiolr hc put to I lcie
Vittlnar I)lt direct c armllatl(lll hi the General Cotun el C'amnpbel Itti-
fied ai ItN*,
I ee And Ihen, rnN nextl que iolln i,, did i ,u hbase cln\i eralln
Nilnl trl eniplh l et therc'
A et. N, I cil i i andl I aked tillen Aollnar whether thc Na,
ita;lre if Ihere hald behel aIn! pa; iticrease i., the matiagCiletri s.tlltf
earhlier that ,ear
C anm b:ll telifted Ol diltfercntils iI t roln-enartilnatllln
Q NlN. siur letllllelni. I a 1ait to make ture I underta.nd (hi,
WthentI sWU adIre,,ed MtI V` ,lj.tr Nhat i, It again that NtL atkted
tier '
A I akedl her it the vi .Nasare whial Ihe i/C ht Ihe itllcrtcac paid
ti rlitarigltat l a stilft I'lt Jalntard firt had heer
I ater ln., ( Imphell l,,ltfi[cl trhitl t.e .c tt ite . irtllrn .ha.l tpeilfiL qLti -
ittlll i hadl aketi.i 11 I h. Vtll art hbUT tcci l To r-- all refereat. C, [I " er
LCt t.tge r.llc .ati t a.ri ,.th -t l tardt ill reat
985
DECISI()NS ()F NATIONAl. lABOR RELATI)NS H()ARD
fied and admitted that requests to see financial records
are made during negotiations.
There is simply no basis in the record to support a
finding of unlawful motivation. The reprimand letter
here in question is the only discipline Campbell has re-
ceived during his employment with Respondent, and it is
clear that he was disciplined for his surreptitious conduct
as detailed herein, and there is no evidence that the disci-
pline was motivated for any other reason. I find that
Campbell was legally reprimanded for the sole reason
that he wrongfilily and deceptively sought information
concerning the salary increase of management people.
CONCI t SIONS Oi L .x
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent has not engaged in any of the nfair
labor practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
The complaint is hereby dismissed in its entirety.
In tile n cti nt iio cx epiolil airt f'ilcd as proiidecd hb Sec 10(2 46 it 1llt
Rules rid Regulations of the Nalloni.l I. ahor Rela.tiin, Boaird, the filld-
prigsn. micluiuoni. arid r¢coillnnrldcd ()rder hlerclrlen shill. a, pro, tied ill
Sc 10)2 48 Af the Rules i;aid Regill.lioil,. he adIliplcd h5 tire lBoalrd all
bc.'itllC ils liirldii gs. c rlcl ui oills . a1lld ()rdcI. al nd all uIhije. l)lu s Iheretl
sh1ll he dtleClctI \stin m'd toir all purpo,ses
986