Contra Costa Times

National Labor Relations Board - Board Decisions

Mar 15, 1977

228 N.L.R.B. 692 (N.L.R.B. 1977)

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Bay Newspapers , Inc., d/b/a Contra Costa Times
and San Francisco-Oakland Mailers Union Local
No. 18, International Typographical Union. Case
20-CA-10740
March 15, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On June 23, 1976, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief.
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 conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
Member Walther, by his dissent, would give literal
credence to Foreman Gipp's denial at the hearing,
when testifying for Respondent, that the discharge of
Swanson on October 5 was not for posting a notice of
a union meeting on the mailroom bulletin board or
for wearing a jacket with the name of the union on
the back, but only for passing out union literature on
a single occasion at the beginning of his shift. Thus,
Member Walther disputes the Administrative Law
Judge's specific refusal to credit that portion of
Gipp's testimony, and construes Gipp's reference to
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
inc., 91 NLRB 544 (1950), enfd 188 F .2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Although Member Fanning agrees with the Administrative Law
Judge's conclusion that Randy Swanson was discharged in violation of Sec.
8(aXl) and (3), he would find the no-solicitation rule as a whole invalid,
unlike the Administrative Law Judge who essentially found only "after-
shift" solicitation an invalid prohibition and was of the view that Swanson
could have been discharged for soliciting "during working time ." See his
and Member Jenkins' dissent in Essex International, Inc., 211 NLRB 749
(1974). The existence of the overly broad rule cannot serve as a defense to an
8(aX3) allegation based upon a violation of the rule.
' In our view the credibility findings of the Administrative Law Judge are
here determinative . Gipp's denial of his earlier significant admission was
discredited and we see no valid basis for reversal of this credibility finding.
See Buffalo Bituminous, Inc, 227 NLRB No. 20, fn 1, Member Walther
dissenting (1976).
' The Administrative Law Judge found the posting unprotected, noting
the apparent lack of supportive decision on the issue and the lack of
evidence that the bulletin board had been used for employee notices. We
find the posting protected and Respondent 's action violative of Sec . 8(a)( I),
228 NLRB No. 71
the recent warning letter given Swanson as merely a
reference to the last sentence thereof : "Any further
violations of company policy will result in your
immediate termination." 3
This interpretation, which attempts to obviate the
Administrative Law Judge's credibility findings is
strained . The written warning specifically referred to
the posting of a union meeting notice and the
wearing of the said jacket, and erroneously identified
both in terms of the Company's no-solicitation
policy, ignoring the protected character of the
posting4 and the jacket wearing . The warning then
stated that "further" violations would result in
termination. Further means additional. Gipp's call-
ing attention to this warning effectively incorporated
the protected activity warned against as part of the
reason for the discharge and is consistent with Gipp's
original version of the incident when testifying as a
witness called by the General Counsel. As the
Administrative Law Judge found, Gipp admitted
that the discharge was based in part on the matter
which gave rise to the warning notice. That testimo-
ny, credited by the Administrative Law Judge, is
determinative of the matter. Gipp's reference to the
warning notice cannot be treated in a vacuum and
related only to the no-distribution rule.5
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, as
modified below, and hereby orders that the Respon-
dent, East Bay Newspapers, Inc., d/b/a Contra
Costa Times, Walnut Creek, California, its officers,
agents, successors, and assigns, shall take the action
as alleged in the amended complaint . See Talladega Cotton Factory, Inc., 106
NLRB 295, 333 ( 1953). Swanson wrote the union meeting notice on a
blackboard immediately above the mailroom timeclock and signed it.
Foreman Gipp admitted that he erased it and , in speaking with Swanson,
threatened discharge to "anybody writing on my blackboard." This was a
vehement threat for posting a simple notice, inoffensively worded. Swanson
wrote the notice before his shift began . The place of posting enabled
employees involved to read the notice without waste of time . The message
was erasable, thus there was no possibility of litter. In the circumstances, as
it did not interfere with discipline or efficient production , we view it as an
appropriate exercise of Sec . 7 rights.
S The cases cited by our colleague on this issue are distinguishable. Both
involve companies that specifically permitted union posting . In Eastex
Incorporated 215 NLRB 271 (1974), a plant rule on the subject was in the
bargaining contract and "union notices designating the time and place of
union meetings" were excepted from advance permission. Sec. 8 (axl) with
respect to such a notice was not in issue ; solicitation and distribution were.
In Nugent Services, Inc., 207 NLRB 158 (1973 ), inplant strife had arisen over
a slate of union officers. The postings that there occurred were presenting a
discipline problem in the plant . That decision merely exempts from Sec. 7
protection the posting of "partisan campaign literature " in the circumstanc-
es of that case, suggesting in so doing that there is no "absolute right" to the
use of "company" bulletin boards , as distinguished from protection of such
usage in appropriate circumstances , as here
CONTRA COSTA TIMES 693
set forth in the said recommended Order, as so
modified:
Insert the following as paragraph 2(c) and reletter
the subsequent paragraph accordingly:
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I would dismiss the
allegation that Respondent Employer discriminatori-
ly discharged Randy Swanson in violation of Section
8(a)(3) and (1). In my view, the evidence proves that
the reason for the discharge was Swanson 's violation
of a valid no-distribution rule, not his protected
concerted activity.6
On October 2, 1975, Swanson received a warning
notice which read:
October 2, 1975
To: Mr. Randy Swanson
Company policy forbids solicitation of any type
on the premises of the Eastbay Newspapers, Inc.
On September 28, 1975 you posted a notice of a
union meeting on the bulletin board in the
mailroom . On October 1, 1975 you wore a jacket
on the premises of Eastbay Newspapers, Inc. with
the name of a labor union on the back of the
jacket. You were notified of the company policy
of no solicitation on October 1, 1975.
Any further violations of company policy will
result in your immediate termination.
/s/ Jack V. Gipp
Jack V. Gipp
Mailroom Foreman
Thereafter, on October 5, 1975, approximately 10
minutes after his shift had started, Swanson handed a
union booklet to employee Medeiros in the work
6 Furthermore , the Administrative Law Judge found , and I agree, that
since the record disclosed that use of the company bulletin board and
blackboard was confined to company business, Swanson 's posting of a
union meeting notice on the bulletin board /blackboard was unprotected
activity . It is well established that Sec. 7 does not give employees the right to
use company bulletin boards for the posting of information . Eastex
Incorporated, 215 NLRB 271 (1974); Nugent Service, Inc., 207 NLRB 158
(1973)
My colleagues find that "appropriate circumstances " exist in this case
sufficient to deprive the Employer of the right to the exclusive use of its
Company bulletin board/blackboard , yet set forth no evidence that the
Employer has permitted the bulletin board /blackboard to be used for other
than company business . In the absence of such evidence, I find irrelevant
Supervisor Gipp's threat to discharge "anybody writing on my blackboard,"
area of the mailroom . Medeiros briefly looked at the
booklet and then handed it back to Swanson.
According to the credited testimony of Mailroom
Foreman Gipp, who observed the entire incident:
Randy Swanson started walking back towards the
machine. I met him halfway and asked him if he
remembered the memo I had read to him about
no soliciting.
He said that he did.
So, I told him to take his Union literature and
punch out for violation of the Company policy of
no soliciting.?
My colleagues agree with the Administrative Law
Judge who found that Respondent discriminatorily
discharged Randy Swanson . The Administrative
Law Judge relied on Foreman Gipp's testimony, in
response to the General Counsel's leading questions,
that the discharge was based in part on the transfer
of the union book to Medeiros and in part on the
matter which gave rise to the warning notice. Finding
that Swanson's protected activity, his wearing of a
union shirt, was a factor in the decision to discharge
him, the Administrative Law Judge concluded that
under the Board's decision in The Youngstown
Osteopathic Hospital Association, 224 NLRB 574
(1976), the discharge was in violation of Section
8(a)(3) and (1). I disagree, because the Administra-
tive Law Judge also concluded:
Despite Gipp's above-mentioned admission, I am
not prepared to find, in the circumstances of this
case, that "but for" Swanson 's having worn a union
bowling shirt he would not have been discharged. I
am of the opinion that Respondent had good cause to
discharge him because of his flagrant breach of the
valid no-distribution rule despite his having been
previously warned that a breach of the rules
would result in his discharge, and I do not
consider that this breach of the rule was a mere
pretext for discharging him for his prominent role
in the Union's organizational campaign. [Empha-
sis supplied.]
the wording of the notice , the time and place of posting , and the absence of
litter
7 The company policy to which Gipp referred was expressed in a notice
posted on the mailroom bulletin board on October 1, 1975. The notice
provided, inter ala.
Distribution of literature of any type or description by employees
during working time is prohibited.
Distribution of literature of any type or descnbtion in working areas is
prohibited.
Violation of any of the above rules will result in immediate disciplinary
action, including discharge.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, in agreement with the Administrative Law
Judge, that Respondent had good cause to discharge
Swanson because he distributed a union booklet to a
fellow employee in violation of a valid prohibition
against distribution of literature during working time
and in working areas .8 In addition, I agree with the
Administrative Law Judge that, on the facts of this
case, it cannot be found that but for Swanson's
protected activity he would not have been dis-
charged. However, contrary to the Administrative
Law Judge, who found that Swanson's discharge was
motivated in part by his protected concerted activity,
I find that the sole reason for the discharge was his
violation of Respondent's valid no-distribution rule.
It is undisputed that at no time did Foreman Gipp
tell Swanson that he was being discharged in whole
or in part because he had worn a union bowling shirt.
In my view, when, prior to terminating Swanson,
Gipp "asked him if he remembered the [October 2]
memo [Gipp] had read to him," Gipp was referring
to the warning contained in that memo which
Swanson had disregarded, and not to the individual
infractions contained therein. In this regard, Gipp
testified as follows:
Q. (By Mr. Magor) Why did you discharge
Mr. Swanson on that particular morning of
October 5?
A. For passing out Union literature.
Q. Did you discharge him for posting a notice
of a Union meeting on the bulletin board in the
mailroom?
A. No, I did not.
Q. Did you discharge him for wearing a
jacket on the premises of East Bay Newspapers,
Inc., with the name of the labor union on the back
of the jacket?
A. No, I did not.
Q. You did give him a warning notice for
those two events , did you not?
A. Yes, I did.
In light of this latter testimony, I interpret Gipp's
earlier statements to mean that on October 5
Respondent, in response only to Swanson 's flagrant
breach of the no-distribution rule, enforced its
October 2 warning of termination for "any further
violations of company policy." 9
In my view, the General Counsel has the burden of
proving that an employee's protected concerted
activity was a motivating reason for his discharge. In
Youngstown, supra, I agreed with my colleagues that
the General Counsel had met this burden. Thus, in
that case, the General Counsel established that in
spite of the employer's longstanding knowledge of
employee Yacoub's work deficiencies she was not
discharged until 1 hour after it was learned that she
had filed a petition on behalf of another employee.
Indeed, the record established that "Yacoub was told
at the time of termination that she was being
terminated partly because she had circulated the
petition-'Besides we heard you were circulating a
petition....' "
In the instant case, unlike Youngstown, the General
Counsel has not established that the reason for the
discharge was protected concerted activity. Indeed,
the evidence clearly shows that Respondent dis-
charged Swanson immediately on observing his clear
violations of a lawful no-distribution rule, and that
was, and is, the only reason given Swanson for his
discharge. I would therefore dismiss this allegation of
the complaint.
8 Cf. Essex International, Inc, 211 NLRB 749 (1974).
9 The Administrative Law Judge' s refusal to credit Gipp's denial was not
based on demeanor, but rather resulted from a selective reading of the
testimony and his "mfer (ence ] that the wearing of the union shirt ... was
admitted by Gipp to have been a factor in his decision to discharge
Swanson." I conclude that insofar as his "credibility finding" is inconsistent
with evidence and circumstances other than demeanor it is not, as my
colleagues suggest, "determinative of the matter." Cf Buffalo Buum,nous,
Inc., supra
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on
a charge filed on October 21, 1975, by San Francisco-
Oakland Mailers Union Local No. 18, International
Typographical Union, hereinafter referred to as the Union,
the complaint herein was issued on March 11, 1976. Said
complaint, as amended during the course of the hearing,
alleges that East Bay Newspapers, Inc., d/b/a Contra
Costa Times, hereinafter referred to as the Respondent or
Company, violated Section 8(a)(1) and (3) of the Act. By its
answer Respondent denies that it committed the unfair
labor practices alleged as well as other allegations in the
complaint.'
Pursuant to notice a hearing was held before me in San
Francisco, California, on March 25, 26, 29, 30, 31, and
April 1, 1976. Appearances were entered on behalf of the
General Counsel and the Respondent and briefs were
timely filed on behalf of said parties on June 1, 1976.
Based upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation with an office and
place of business in Walnut Creek, California, is engaged in
I Of the "other allegations" denied , neither the denial of the filing and
service of the charge herein nor the conclusionary allegation that
Respondent is an employer engaged in commerce was seriously pressed, but
the allegation that Bart Fonseca is an agent of Respondent and a supervisor
within the meaning of the Act was fully litigated.
CONTRA COSTA TIMES 695
the publication of newspapers. During the past calendar
year, Respondent, in the course and conduct of its business
operations, received gross revenues in excess of $200,000.
During the same period, Respondent held membership in,
or regularly subscribed to, nationally syndicated features,
and engaged in the advertising of products sold throughout
the United States.
Respondent is, and at all times material herein has been,
an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by amendment to Respondent's answer,
the Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
Background Information
Respondent is in the business of publishing newspapers
including the Contra Costa Times and other dailies and
weeklies. Prior to April 1975 it operated completely out of
what is referred to as the "old plant." At that time, it
commenced moving into the "new plant" (at a different
location in Walnut Creek) which contained five or six times
the floor space of the old plant. Its mailroom employees are
the only portion of Respondent's employee complement
which is involved in this proceeding. The move to the new
plant created a substantial change not only in the size of
the facility but also in the machinery.
Respondent's publishing operations at both the new and
the old plants included a mailroom department. The
functions of the mailroom department are basically to
receive the printed newspapers from the presses, to insert
preprinted materials (inserts) into the newspapers, to count,
stack, and bundle the newspapers, and to deliver the
completed newspapers to an adjacent dock area for
ultimate distribution.
To carry out these functions, Respondent had in its old
mailroom a single inserting machine and one tying
machine. Newspapers were delivered to the mailroom by a
system of conveyers and were then manually lifted from
the conveyors and transferred into the inserting machine.
The inserts which were to be fed into the newspapers were
manually lifted from pallets and fed into the pockets of the
inserting machine. There were no automatic counting or
stacking machines at the old plant, and these functions
were performed manually.
The mailroom in the old plant was in a room about 28 by
50 feet, situated over the larger of the presses. The largest
press in the old building was approximately 70 to 75 years
old which operated at an average speed of approximately
10,000 papers an hour.
About 90 percent of the mailroom was moved to the new
plant on April 21. The final move to the new plant was
completed about the latter part of July. The "Urbanite
Press" was installed and in operation the week of August 4.
The mailroom at the.new plant is approximately 100 feet
by 150 feet. At the new plant, Respondent installed a
Metro Offset Press, which has a speed capacity of 70,000
papers an hour. In the new plant Respondent has four rows
of new Mueller Inserters (insert machines). Papers are
delivered automatically on a conveyor belt from the press
to the insert machines. The insert machines have a speed of
12,000 to 14,000 papers an hour so that inserting can be
accomplished when the press is running up to approximate-
ly 55,000 papers an hour. Additionally, the mailroom in the
new plant has automatic counter stackers and bundlers.
Thus, the new mailroom is almost completely automated.
The only manual operation is that of moving inserts to the
machines and placing them in pockets. As a result, a press
run and the inserting process are now completed in
somewhat less than half the time required at the old plant.
At the old plant mailroom employees ordinarily worked
about 8 hours per shift because of the slowness of the press.
Part-time inserters, employees who place the inserts in the
pockets of the insert machines, worked only on the days
that there were inserts, which were ordinarily on Tuesdays
and Saturdays. At the new plant, due to the speed of the
press and equipment, part-time inserters work approxi-
mately 3-1/2 hours and are guaranteed pay for 4 hours.
Inserts are placed in the paper generally on Tuesdays,
Wednesdays, and Saturdays. Part-time inserters, or pocket
operators, as they were subsequently classified, work from
one to three nights a week.
Respondent's employees at both the old and the new
mailrooms fall into two main functional categories: (1)
machine runners/operators, and (2) inserters/pocket oper-
ators. Machine operators in both the old and the new
mailrooms were responsible for setting up inserting
machines and routinely maintaining them; this function
did not materially change with the move into the new
plant, despite the advent of more efficient equipment.
Machine operators were additionally responsible for
feeding newspapers into the main pocket of the inserting
machine in the old mailroom; although this function was
no longer necessary in the new mailroom because of the
automatic in-feed conveyor, machine operators still have
occasion to operate ancillary pockets on the inserting
machines.
Inserters/pocket operators are primarily responsible for
feeding inserts into the ancillary pockets of the inserting
machines, and this was the case at both the old and the new
mailrooms. Despite the more efficient inserting equipment
in the new plant, there was no change in the nature of the
work of the inserters or pocket operators at the new plant,
and they still manually lift inserts from pallets to be fed
into the machines.
Respondent's mailroom complement appears to have
been essentially unchanged as a consequence of the move
of the mailroom from the old plant to the new plant.
However, the hours and starting times of the mailroom
employees have undergone changes as a result of the move.
Full-time employees who worked the day shift appear to
have maintained both their hours and starting times, and
continue to work 40 hours a week. However, Respondent's
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night-shift mailroom employees have gradually experi-
enced a delay in their starting times,2 and many have
suffered a reduction in their hours 3 as a consequence of the
move.
Although part-time employees might work 40 hours a
week , that in itself did not make them "full-time"
employees. Employees who are classified as "full-time" not
only receive an hourly rate of pay, but also earn fringe
benefits such as vacation time, insurance, holidays, etc.
A. The Organizational Activities
It appears that Randy Swanson was the prime instigator
of the organizational campaign. He was employed on July
8, 1975, as a part-time inserter. According to his credited
testimony, by mid-July he had spoken to his father- in-law,
a former union organizer, about organizing the mailroom
and through his father-in-law had met with two of the
Union's representatives . Thereafter he arranged meetings
between employees and union representatives and distrib-
uted and collected authorization cards. Apparently he was
able to obtain enough signed authorization cards to
establish sufficient interest to support a petition for an
election (for a bargaining unit of mailroom employees)
which was filed with the Board on August 9, 1975.
B. The Issue of Bart Fonseca 's Supervisory Status
It appears that the hierarchy of supervision over the
mailroom starts with Robert Smith, as circulation manager,
but who apparently did not engage in any supervision of
the actual operations . The operations of the mailroom were
directly under the supervision of Jack Gipp as mailroom
foreman . There is no issue with respect to the supervisory
status of Smith and Gipp . However , there is an issue as to
whether Bart Fonseca , who has hired on August 2, 1975, as
"assistant mailroom foreman" or "night foreman" is a
supervisor within the meaning of the Act . It is necessary to
resolve this issue because of an allegation relating to a
statement he made at a union meeting held on October 2,
1975, which he attended, and a statement he made after
Swanson was discharged . (The incidents are considered
hereinbelow.)
It appears that Fonseca had no mailroom experience
prior to the start of his employment by Respondent.
Fonseca testified that during the month of August, Gipp
was present in the mailroom about 80 percent of the time
he (Fonseca) was on duty and that during the months of
September and October about 50 percent of the time. It
appears from his testimony that he received little or no
instructions as to the scope of his authority . He received a
straight salary of $ 1,000 a month when he started which
was raised to $1,100 a short time later . On the other hand,
the other employees in the mailroom were paid on an
hourly basis , although some of them were "full-time"
employees and worked 40 hours per week as he did.
2 From April 1975 until September 1975, the mght -shift inserter
employees ' starting times have been progressively pushed back from 7 p.m.
until 12 midnight The later starting times resulted from the later deadlines
made possible by Respondent 's more efficient main press.
3 Sometime in early August 1975, two things occurred : Respondent
He testified that when Gipp is not present he is
"responsible for the proper performance" of the employees
in the mailroom; he has the authority to send an employee
home if he is drunk or unfit to work; he has given
permission to employees to leave early when they were
sick; he frequently transfers employees from one machine
to another; he makes verbal reports to Gipp with respect to
such matters as the work performance of the employees; he
has the authority when lacking sufficient personnel to can
in additional employees from a seniority list; and he does
not "believe" he has the authority to hire anyone without
Gipp's approval, but also that in the last part of 1975 he
hired an inserter. Also, it appears that he has the authority
to sign employees ' timecards approving their starting work
prior to the time when they were scheduled.
On the other hand, he testified that he does a consider-
able amount of manual labor; he has never reprimanded or
disciplined any employee or recommended such action; he
has never recommended a wage increase ; and he has never
discharged an employee. It appears that he has made
recommendations that several employees be discharged,
but it further appears that Gipp investigated the bases for
the recommendation and acted on the information he
received from his investigation. It is noted that Fonseca
was invited on several occasions to attend meetings of
employees with union representatives, and that in a related
representation case (20-RC-12962) he was listed as an
eligible voter and cast his ballot without challenge.
It is concluded that in balancing the above facts that the
weight of the evidence supports a finding that he is a
supervisor within the meaning of the Act. I am particularly
persuaded by the fact that for a considerable portion of
Fonseca's shift the work force which might consist of 30 or
more employees would be without supervision if he were
not a supervisor, and his testimony that he considered
himself responsible for the proper performance of the
employees. I have not failed to consider, however, that
there is considerable doubt that the employees, at least
during the earlier portion of his employment, believed him
to be part of management.
C. Resolution of the Allegations of Unfair Labor
Practices
The incidents which relate to the allegations of unfair
labor practices will be considered, insofar as possible, in
their chronological order.
1. Instances of interrogation
Richard Myers, who was employed in July 1974 as an
"inserter" in the old mailroom and became a "machine
operator" shortly after the move to the new plant, testified
to a conversation he had with Gipp about the middle of
August. Myers testified that Gipp called him into his office
and asked him how he "felt about the Union"; that he
replied, "I haven't got that much into it"; that Gipp then
appeared to have worked out the bugs in its new equipment , both in the
mailroom and the pressroom , and the Urbanite press was installed. After
this time, part-time night-shift employees worked from one to three evenings
a week , and between 3 to 4 hours a night.
CONTRA COSTA TIMES 697
asked him what he wanted out of the Union and he
responded "full time, more money"; that Gipp then asked
him if he "would consider voting no for the Union if he
could get it for me"; and that he replied that he would.
Gipp virtually corroborated Myers' testimony except that
portion about considering voting no for the Union if he got
full time and more money. However, it is noted that the
denial was elicited by a question as to whether he made
such a statement , that prior thereto Gipp testified that he
did not "remember really" what he did say to Myers after
Myers told him what he wanted. I am of the opinion his
denial cannot be credited, because Myers was the more
convincing witness as to this incident and, moreover, as
will be disclosed hereinbelow, management was in the
midst of considering pay raises at the time and a short time
later Gipp did convert two employees to full-time status
including Myers. It is concluded that Gipp did unlawfully
interrogate Myers in violation of Section 8(a)(1) of the
ACt.4
The General Counsel contends that Gipp also unlawfully
interrogated Glenn Hall, a machine operator, at or about
the same time as the interrogation of Myers. However, the
testimony relating to this contention will not support it.
Hall testified that when he was at work setting up his
machine in early August Gipp said to him, "and you want
to be in the Union?" Hall further testified that it was more
of a statement than a question. It further appears from
Hall's testimony that nothing further was said by either of
them. Gipp credibly testified as follows to the incident:
A. He was having trouble with his inserting
machine, and I walked up to him and I says, "Do you
want to be a union mailer?"
I made the remark, "You wouldn't make the pimple
on a good mailer' s ass."
I then turned around and walked away.
There is no significant variation in their testimony of the
incident except that Hall did not mention the vulgar
assessment of his competence to which Gipp testified. It
appears that, at most, the reference to wanting to be a
"union mailer" was a rhetorical question, was not an
attempt to elicit information, and was merely injected as a
prelude to Gipp's derogatory remark. Consequently, I am
of the opinion that the General Counsel has failed to prove
by a preponderance of the evidence that on that occasions
Gipp unlawfully interrogated Hall, as contended by the
General Counsel.
2. The wage increases on August 26
On August 26, all of Respondent's mailroom employees
were notified that they would be receiving wage increases
retroactive to August 21 .6 Employees were also informed
that they had been reclassified into new job classifications,7
and two employees were further told that they had been
converted from part-time employees to full-time employ-
4 It should be noted that other instances of unlawful interrogation by
Gipp are found herembelow, so that this was not an isolated incident.
5 However on a later occasion, as found herembelow, Gipp did
unlawfully interrogate Hall
6 The only exceptions were Jack Gipp, Bart Fonseca, and Betty
Robinson. Robinson is Gipp's secretary.
ees. None of the employees prior to this date had been told
that Respondent was intending to give them wage increas-
es. Respondent contends that the wage increases granted
its mailroom employees on August 26 had been planned
and decided on well in advance of August 26, and, thus,
were not instituted to discourage union activity. The timing
of the raises obviously casts considerable suspicion on
Respondent's motive for granting them since it had
knowledge, at least shortly after August 9, of the employ-
ees' interest in the Union. Consequently, there is a factual
issue of whether or not Respondent had decided to grant
pay raises prior to any knowledge of union activity.
Dean Lesher, Respondent's president and a stockholder,
testified that in 1972 he and Smith were in Europe
inspecting presses and mailroom machinery for the new
plant which was to be constructed and that they observed
the considerably shorter time the new equipment they
eventually purchased would require for completing press
runs and the inserting process. He further testified that
they discussed the fact that the new equipment would
greatly shorten the length of hours required of mailroom
employees and their reporting time (in that the press run
could be started much later at night than was necessary
with the old equipment). He further testified that there
were delays in the projected time for completion of the new
plant and installation of equipment and that the move to
the new plant was not completed until July 1975.8 He also
testified that late in 1974 or early in 1975 he had a
conversation with Smith about adjustments which should
be made in the wage structure of the mailroom employees
after the move to the new plant, and that during their
conversation he wrote an informal memorandum of his
suggestions with regard thereto (Resp. Exh. 11). Lesher was
a convincing witness and his above-summarized testimony
is credited.
Smith testified that ground was broken for the new plant
approximately in the summer of 1972 and that in
November 1972 he and Lesher went to Switzerland to
inspect the press and mailroom machinery which were
purchased by Lesher at a cost of approximately $2 million
for the press and $750,000 for the mailroom equipment. He
further testified that the original target date for the move to
the new plant was November 1974, which was changed to
January 1975 and that, due to further construction delays,
the move was not started until April 1975, that the entire
plant was moved by the end of June 1975, and that the new
plant was in complete operation around August 1, 1975. It
appears that as early as May 1974 he started discussing
with Gipp the effect that the new equipment in the
mailroom might have on its personnel. (Resp. Exh. 17.)
Smith further testified that in February 1975 he met with
Lesher and discussed the matter of mailroom personnel.
Smith testified with regard thereto as follows:
A. I pointed out to Mr. Lesher some of the
problems that we were going to have in moving to the
7 The new job classifications constituted merely a renaming of previous
jobs without a change in duties and are not considered of any significance.
8 It appears from the credited testimony of Gipp that the move was
completed in the latter part of July and the Urbanite press was installed in
the first week of August.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new plant ; that we were going to require some more
skilled people to operate the new equipment; and that
we were going to have to change some of the
classifications and the jobs that we had ; and that it was
probably going to cost us more money.
He further testified that as they talked Lesher prepared
Respondent's Exhibit 11, referred to hereinabove, and that
the pay scales contained therein were based on his
suggestions ("the impact of the figures was mine").
Smith also testified that Frank Newell, who is his
immediate superior, became general manager of the Contra
Costa Times about January 1, 1975, and that on March 3,
1975, he wrote a memorandum (Resp. Exh. 12) to him
suggesting a new pay scale for mailroom employees after
they move to the new plant because of the expected impact
of the new equipment on their working hours and also
mentioned a guarantee of a 4-hour shift for the part-time
personnel. It appears that Newell answered the memoran-
dum by writing a note thereon dated March 7, stating,
"This appears to be the thing to do. However I suggest we
get the move accomplished before we put it into effect "
Smith further testified that on July 25, 1975, he wrote
another memorandum (Resp. Exh. 13) to Newell which
read as follows:
I am going on vacation for a week up in Oregon and
wanted you to think about implementing the pay
schedule for the mailroom that we talked of back in
March.
Jack Gipp tells me that he is beginning to get things
organized and with the Urbanite press due to run,
probably at the end of next week, we should get moving
on a pay schedule that will insure us keeping some of
our better people.
I understand Frank Pierce may be leaving shortly
and this would leave Jack short-handed in the supervi-
sory level.9
I discussed this pay schedule with Mr. Lesher last
spring and had his tentative ok. You may want to check
again.
It appears that Newll answered by writing a note on the
memorandum as follows: "7-25-75. See me when you
return from vacation and we will review the schedule with
Mr. Lesher."
The above-summarized testimony of Smith is credited.
According to the credited testimony of Smith and Gipp,
after Smith returned from his vacation in the first part of
August he met with Gipp and asked him to give him the
appropriate classifications for the employees in the mail-
room and on the following day Gipp informed him that
employees could be classified as pocket operators, machine
operators, and machinists. Based on this information, it
appears that Smith then prepared a pay schedule for the
mailroom (Resp. Exh. 14 without the corrections noted
therein), and armed with this schedule and the memoran-
dum Lesher had given him in February (Resp. Exh. 11) he
met thereafter with Lesher. At this point there is a conflict
in the testimony of Lesher and Smith. According to Smith's
testimony he had two meetings with Lesher with regard to
the proposed pay schedule. According to Smith, at the first
meeting in the first part of August (about August 6 or 7),
Lesher made the corrections noted on the schedule but no
decision was made as to the date when the schedule should
be implemented, that it was not until August 25 in a second
meeting, that the decision was made by Lesher to proceed
with it. Smith testified to the second meeting as follows:
A. I said to Mr. Lesher that we have got a union
problem, that we had got to get something done about
these raises ; and I asked him, "Does it pose a
problem?"
I think his words were, "I don't know whether it
poses a problem, or not; but we are going to do it,
anyway. So go ahead, and get it done."
And that was about the sum total of the conversa-
tion.
He further testified that he then wrote on the schedule "OK
8-25-75."
According to Lesher's testimony he did not see the
schedule until August 25 and it was on that day that he
made the corrections in the schedule and authorized the
schedule to be implemented.
It appears that Smith's testimony about his first meeting
with Lesher on August 6 or 7 cannot be credited. Not only
does it conflict with Lesher's testimony but it also conflicts
with testimony of Gipp that it was about August 10 that
Smith asked him for the classifications in the mailroom.
Thus, if Gipp's testimony is credited (which it is), the pay
schedule could not have been prepared in time for the
meeting he testified he had with Lesher on August 6 or 7.
Consequently I do not credit Smith's testimony about the
first meeting with Lesher. It is inferred that there was only
one meeting and that it was on August 25 and, while I
credit Smith's testimony about what occurred in the
preparation during that meeting of the ultimate pay
schedule (as corrected by Lesher), I credit Lesher's
testimony that it was done on August 25. I also credit
Smith's testimony of his conversation on August 25 with
Lesher about the matter of the "union problem." Lesher
testified as follows with respect to the pay schedule he
approved on August 25:
Q. (By Mr. Magor) Who made the final decision to
give the wage increase to the mailroom employees?
A. I did, I make the final decisions on all the
wages.
Q. What was your reason for giving the wage
increase?
A. In the first place they were coming to work later,
coming to work in the middle of the night and, in the
second place , we had so much turn over before that we
were being able to keep people when they come to work
in the middle of the night.
In the third place, they would work only a relatively
few number of hours.
With all those things in mind we decided to raise the
scale.
" This would appear to confirm the finding that Fonseca, who
commenced work on August 2, 1975, was hired as a supervisor
CONTRA COSTA TIMES 699'
In the fourth place, we were dealing with new
equipment , completely different kind of equipment
with a great deal of money involved in it and we felt
that therefore we had to keep better qualified people on
a full time basis and poeple with more knowledge of the
equipment on a part time basis.
Q. Do you know whether or not there was a
changeover of personnel from the part timers working
in the mailroom?
A. The personnel director was constantly com-
plaining about the changeovers, we would have as
many as 15, 16, 18 a month.
As to the reasons above stated, I am of the opinion that
the need to keep better qualified people on a "full-time"
basis was an afterthought . There is no showing that this
consideration was mentioned in discussions about the
impact of the move to the new plant and the need to
restructure the wage scale. While it is inferred that a
restructuring of the wage scale was planned prior to the
advent of the Union , I am not satisfied that I can find that
the implementation of some of the raises and the change of
two employees to a "full -time" basis were not motivated by
a desire to discourage union adherence . The record
discloses that there were a number of deviations from the
wage scale approved by Lesher and two employees were
changed to a full-time status (thus entitling them to the
aforementioned fringe benefits ). Smith testified in effect
that Gipp was responsible for the deviations and it appears
that Gipp was also responsible for the change of two
employees to "full-time" status . Gipp offered no explana-
tion for his said action except to refer to some complaints
from several employees about the amount of their raises.
As to the changes to "full time" it is noted that in the case
of Myers, as found hereinabove , he had responded to
Gipp's interrogation as to why he wanted a union that he
wanted more money and full time and that he received
both . It is concluded that in all of the circumstances the
upward deviations from the wage scale approved by Lesher
and the change of Karen Lutz (as well as her raise above
the scale) and Myers to a full-time status were designed to
discourage union adherence and thus were violative of
Section 8 (a)(1) of the Act . Revco Drug Centers of the West,
Inc., 188 NLRB 72, 77 (1971).
3. Interrogation of Hall
Hall testified that at the end of August 1975 he was at the
water fountain across from his machine when Gipp
approached him and asked, "What do you think of the
Union?"; that he replied that he wanted to make more
money; that Gipp then asked him, "What happens when
they take 20 percent out of your check for papers back east
when they go on strike?" and that he answered that he
could quit the mailers and go do something else. Gipp
substantially admitted Hall's account of this incident,
except the question about the "20 percent" deduction
which he denied . Hall's version is the more convincing
testimony and it is credited . It is concluded that Gipp's
questioning of Hall constituted unlawful interrogation in
violation of Section 8(a)(1) of the Act when considered in
light of his prior and subsequent unlawful interrogation of
employees and his obvious opposition to union representa-
tion.
4. The warning notice to Swanson
On September 24, Swanson attended a representation
hearing before the Board , at which Gipp , Gail Davidson,
Respondent's personnel manager, and Smith were also
present . Following this hearing , it was decided to hold a
meeting of mailroom employees with union representatives
on October 2, at the Paddock Bowl in Pacheco , California.
In late September, Swanson wrote the following message
on a blackboard located above the mailroom timeclock:
"Union meeting, Paddock Bowl , 3:30 p .m. Any questions,
ask Randy Swanson." Swanson credibly testified that he
wrote the message before he had punched in and prior to
the beginning of his shift , and that later he discovered that
the message had been erased.
About 2 days later Swanson rewrote the message on the
blackboard . This time, however, he omitted the inclusion
of his name. Later that evening, Swanson testified that
Gipp approached him at his machine and told him: "You
tell everybody at the meeting that if I catch anybody
writing on my blackboard that they won't vote, I will fire
them."
Gipp testified that such a conversation did take place on
approximately October 1; that he did tell Swanson that if
he caught anyone writing on the blackboard he would fire
them; but he denied that he made any reference to
employees not being able to vote . As to this incident
Swanson was the more convincing witness and his version
of what Gipp stated to him is credited . It is noted that the
blackboard is part of the bulletin board and that there is no
showing that the bulletin board or blackboard was ever
used for anything but company messages to the employees.
Swanson credibly testified that on two occasions he wore
to work a bowling shirt with the name of the Union on its
back . There is some confusion in the record as to the
precise dates he wore them because it is not clear whether a
date refers to the morning on which the shift worked or the
night that it started, since some of the employees were
required to report at 11:30 p.m. and the balance at
midnight . Considering all the testimony with respect to the
two occasions he wore the shirt , it appears that Swanson
wore the shirt during the shift on the morning prior to the
meeting in the afternoon of October 2 and on the shift the
morning immediately following the meeting . It appears
that nothing was said to him about the shirt on the first
occasion but on the second occasion , the morning of
October 3 , just after Swanson checked in, Gipp told him to
come into his office and read to him a memorandum which
is as follows:
October 2, 1975
To: Mr. Randy Swanson
Company policy forbids solicitation of any type on the
premises of the Eastbay Newspapers, Inc.
On on September 28, 1975 you posted a notice of a
union meeting on the bulletin board in the mailroom.
On October 1, 1975 you wore a jacket on the premises
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Eastbay Newspapers , Inc. with the name of a labor
union on the back of the jacket . You were notified of
the company policy of no solicitation on October 1,
1975.
Any further violations of company policy will result in
your immediate termination.10
/s/ Jack V. Gipp
Jack V. Gipp
Mailroom Foreman
JVG: cb After reading the above memorandum to
Swanson, Gipp handed it to him and asked him to take
off the shirt. Swanson complied with the request.
Paragraph VI(h) of the complaint alleges Respondent
violated Section 8(a)(1) of the Act by prohibiting Swanson
from wearing the shirt and paragraphs VII(a) and IX of the
complaint originally alleged that the warning notice
violated Section 8(a)(1) and (3) of the Act because it was
"for wearing Union insignia on Respondent's premises." In
addition, during the course of the hearing, paragraph
VII(a) was amended to include the matter of his use of the
bulletin board to give notice of a union meeting. No case is
cited by General Counsel in support of a proposition that
the use of a company's bulletin board for union purposes
constitutes protected activity in the absence of a showing
that its use has been permitted for personal or other
material unrelated to company business , and I have found
no cases to support such a holding. The record herein
discloses that the use of the bulletin board and blackboard
was confined to company business . Consequently, I am of
the opinion that the aforesaid amendment has not been
proved to be violative of Section 8(a)(3) or (1) of the Act.
On the other hand, Respondent apparently concedes that
the wearing of a union insignia does constitute protected
activity. In its brief it is stated:
While it may be true that Gipp was incorrect in
prohibiting Swanson from wearing the bowling shirt
[The DeVilbiss Company, 102 NLRB 1317 (1953)], it
seems clear that the manner in which Swanson draped
the shirt in the working area of the mailroom during
working time necessary was solicitation and presented
a potentiality of substantial disruption of production,
particularly in a new operation. Compare, Electronic
Systems Division, Dynamics Corp. of America, 196
NLRB 523, 525 (1972).
The argument with respect to Swanson's draping of the
shirt is of no merit inasmuch as that incident did not occur
until after the issuance of the warning notice and therefore
is completely irrelevant to the issue of the propriety of the
notice. Since it is correctly conceded that the wearing of the
shirt constituted protected activity, the warning notice with
respect to such conduct constituted a violation of Section
8(a)(3) and (1) of the Act, it being inferred that a copy of
the notice was placed in Swanson's personnel file (thereby
10 Gipp testified that he considered the conduct cited in the above
memorandum to be violations of Respondent's no-solicitation rules (which
are set forth hereinbelow) It is alleged that the rules were unlawfully
promulgated , but, as set forth hereinbelow, it is found that the General
disciplining him for his protected activity, since the threat
of discharge affected the tenure of his employment). It is
also found that, since the wearing of the bowling shirt with
the Union's name constituted protected activity under
Section 7 of the Act, Respondent violated Section 8(a)(1) of
the Act by prohibiting Swanson from wearing the shirt.
5. The no-solicitation rules
Gipp testified that on October 1, 1975, he posted on the
mailroom bulletin board a notice containing Respondent's
"no-solicitation rules" and a number of General Counsel's
witnesses testified that they first observed the rules on the
board on October 2. It is quite possible that the aforemen-
tioned problem of dates due to the hours of the shift would
account for this disparity. In any event the exact date is of
no consequence. The notice which was posted is as follows:
March 4, 1975
SOLICITATION PROHIBITED
Based upon long established rules, your attention is
called to the following:
"Solicitation of any type by employees during
working time is prohibited.
Solicitation on company premises by employees after
employees' shift has been completed is prohibited.
Distribution of literature of any type or description
by employees during working time is prohibited.
Distribution of literature of any type or description
in working areas is prohibited.
Violation of any of the above rules will result in
immediate disciplinary action, including discharge."
/s/ Frank H. Newell
Frank H. Newell
General Manager
Based on the credited testimony of several of Respon-
dent's witnesses it is found that the above rules were first
promulgated in 1972 by Respondent over the signature of
Lesher and have been continuously posted at various
places in the old plant (although bearing two other
signatures, the last being that of Newell). It appears that
they were posted in the old plant in the employees'
lunchroom, on a bulletin board in the hall outside the
lunchroom, and in two other areas which were not
frequented by mailroom employees. It further appears that
after the move to the new plant the above-quoted notice
was posted commencing in the latter part of June or early
July in two areas not frequented by mailroom employees
and on the bulletin board in the employees' cafeteria. It
also appears that such a notice had never been posted in
the mailroom at the old plant and was not posted in the
mailroom at the new plant prior to October 1. Quite a few
of the mailroom employees called as witnesses by the
General Counsel testified that they had never seen the
notice in either the old plant or the new plant prior to
Counsel has failed to sustain said allegation. This finding, however, is not
material in resolving the issue of whether or not Respondent violated Sec.
8(aX3) and (1) of the Act by the above-quoted warning notice to Swanson.
CONTRA COSTA TIMES 701
October 2. Gipp testified that he had never seen the notice
at the old plant, but did see it about the middle of July in
the cafeteria of the new plant.
There are two allegations with respect to the rules: (1) It
is alleged that the above rules were "promulgated" on or
about October 1, 1975, "in order to discourage employees
from engaging in activities in support of the Union." (2) It
is also alleged, in effect, that the rule prohibiting solicita-
tion on the Company's premises by an employee after his
shift has been completed is unlawful.
It should be noted at this point that two prior consolidat-
ed cases against Respondent (Cases 20-CA-9909 and
9992) involved the maintenance of the very same rules at a
time prior to the time material in this case. The General
Counsel requested that I take official notice of Administra-
tive Law Judge David G. Heilbrun's Decision in said
earlier cases (issued December 30, 1975). It is also noted
that he concluded in his said Decision that the rule
specified in the second above allegation is unlawful (as is
alleged in this case).
As to the first allegation, the General Counsel's argu-
ment that the rules were promulgated on October 1, 1975
(despite the obvious fact that the General Counsel
contended and apparently proved in said earlier consoli-
dated cases that they were maintained at a time prior to
that material herein), appears to be, in essence, that notice
of their existence had never been made available to
mailroom employees prior to October 1, 1975. He asks that
I discredit the testimony that the rules were posted in any
area accessible to mailroom employees. While I do not
discredit the testimony of General Counsel's witnesses that
they had never seen the notice containing the rules prior to
October 2, I credit the testimony of Respondent's witnesses
that the notice was posted in the lunchroom and hall
outside the lunchroom in the old plant and in the cafeteria
in the new plant (prior to the time material herein). Thus, I
find that the rules were posted in areas accessible to
mailroom employees prior to the advent of the Union.
The facts that some or all of the mailroom employees
had not observed the notice and that an additional copy of
the notice was not posted in the mailroom until October 1
will not, in my opinion, support a fording that the rules
were not promulgated with respect to the mailroom
segment of Respondent's employees until October 1.
Consequently, I conclude that the General Counsel has
failed to prove by a preponderance of the evidence the first
above-mentioned allegation with respect to the rules.
As to the second above-mentioned allegation, I fmd the
rule is unlawful.11 The rule does not prohibit employees
from being on the premises after their shift is over but only
prohibits them from engaging in solicitation at such time
and therefore it is an unlawful restriction of their protected
activities . Tri-County Medical Center, Inc., 222 NLRB 1089
(1976); M Restaurants, Incorporated d/b/a The Mandarin,
221 NLRB 264 (1975). Consequently, it is concluded that
said portion of the rules is violative of Section 8(a)(l) of the
Act.
6. The October 2 union meeting
The meeting which was announced as above-mentioned
on the mailroom blackboard, took place, as announced, on
October 2 at 3:30 p.m. at the Paddock Bowl in Pacheco,
which is approximately 7 miles distant from Respondent's
plant. It appears from credited testimony that during a
conversation at the Paddock Bowl prior to the meeting
Fonseca told Hall and Swanson that "he was there because
Jack [Gipp ] asked him to be." 12 Also prior to the start of
the meeting, Gipp, Davidson, and Smith entered the
Paddock Bowl and talked with several of the employees
who were present. There is no explanation in the record of
why they were at the site of the meeting just prior to the
time it was scheduled to start except the testimony of
Swanson that Gipp told him that "they were down to have
a coke and a cup of coffee." There is no showing that this
was a practice of theirs, but rather the record discloses that
employees who habitually frequented the place had never
seen them there prior to October 2. Gipp, Davidson, and
Smith then went into the coffeeshop which is apparently at
the other end of the bowling alley from the room where the
meeting was held and Fonseca joined them. Swanson
notified the people who were there to attend the meeting
that was starting and went into the coffeeshop to tell
Fonseca also, to which Fonseca replied that "he would be
in in a minute." Fonseca then entered the meeting about 10
minutes after it had started. At the end of the meeting
Fonseca was asked by a union representative who was
apparently presiding if he had been sent by the Company.
According to Fonseca's own testimony he first jokingly
responded that he "stood on the Fifth Amendment," then
said that he was "the Spy who came in from the Cold," and
finally he acknowledged, "Yes."
With respect to the unexplained presence of Gipp,
Davidson, and Smith at the site of the meeting during their
normal business hours and just prior to the time it was
scheduled to start, it would greatly strain my credulity to
fmd that it was coincidence. I find, rather, that they were
there to observe which employees, and possibly how many,
attended and I conclude that they were clearly engaging in
unlawful surveillance of employees' protected activity in
violation of Section 8(axl) of the Act.
As to Fonseca's presence at the meeting, I do not fmd
that it, of itself, constituted a violation of the Act, since he
had been invited, and in a sense, even urged by Swanson to
attend. Moreover, it appears from the record that, at least
at that time, he was not considered by the employees to be
a supervisor, so that his mere presence could not have had
a coercive effect on them. However, his affirmative
response to the question of whether he was sent by the
Company (which question tends to support the above
finding that he had told Hall and Swanson that Gipp had
asked him to attend) does support a fording that he was
engaging in unlawful surveillance of protected activity.
Since I found hereinabove that he was a supervisor within
the meaning of the Act, I also fmd that his admission that
he was attending the meeting at the request of the
11 As did Administrative Law Judge Heilbrun in his above -mentioned since he was not a convincing witness with respect thereto , and, also,
Decision because of his being questioned later at the meeting whether he was sent by
12 Although Fonseca denied this testimony , his denial is not credited, the Company , as set forth herembelow.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company cannot be disregarded as mere hearsay . Thus it
is inferred that he attended at the request of Gipp for the
purpose of reporting what he heard and observed. It is
noted that there is no denial in the record that Gipp asked
him to attend . Consequently, it is concluded that Fonseca
attended the meeting in order to engage in unlawful
surveillance in violation of Section 8(a)(1) of the Act.
7. The discharge of Swanson
Swanson , whose shift started at midnight , punched in at
12:01 a.m ., October 5, according to his timecard . It appears
that on his way to punch in he handed a copy of an
agreement between the Union and several publishing
companies (covering the period January 1, 1974, to
December 31 , 1977) to a son of Smith (who was not an
employee of the Respondent). Swanson testified that he
had mistaken him for another man who was an employee.
Smith's son caught up with Swanson at the timeclock, told
him he was not a "mailer ," and gave the booklet back to
Swanson . It appears that he (Smith's son) then related the
incident to Fonseca and Gipp.
Swanson and Stan Medeiros , an "inserter," testified to a
conversation they had shortly after the above-related
incident involving Smith's son . Swanson testified that he
told Medeiros that he thought he was going to be fired
because he had mistakenly handed a book to Smith's son
and thereafter he saw him talking to Fonseca ; that he
asked him if he still wanted a contract booklet, to which
Medeiros responded affirmatively; that he did not have a
copy with him; and that he told him he would give him
one. Medeiros' testimony varies somewhat in that he
testified that Swanson told him that he was going to be
fired because Gipp saw him giving the booklet to Smith's
son. He further testified that Swanson told him that he was
"advised" that if anything should happen to him (Swanson)
he (Medeiros) "was to take over in his place as organizer."
It appears from credited testimony that immediately
thereafter Swanson told a number of employees that he
was going to get fired that night, that the Union had told
him to do so to show that the Union would take care of
them if they were fired for union activity, and that he was
going to accomplish it by giving a union booklet to
Medeiros in front of Gipp . In essence , Swanson 's testimony
does not contradict the above -summarized credit testimo-
ny, although he indicated that he had not been told by the
Union to get himself fired.
It should be noted at this point that I do not consider any
of the above testimony material to the issue of whether
Swanson was discriminatorily discharged (which is consid-
ered hereinbelow). It is set forth because Respondent relies
on it to argue , in essence , that because Swanson deliberate-
ly provoked his discharge by violating a valid rule, the
discharge was not discriminatory and cites Springfield
Garment Manufacturing Company, 152 NLRB 1043, 1056-
57 (1965). Said case is not applicable to the facts in this
case . In the cited case the discharged employee had made it
clear to management that he intended to violate a rule and,
despite being asked not to do so, proceeded with his
1.3 This action would support the finding that Swanson was deliberately
provoking his discharge , since there appears to be no other reason why he
acted so openly There is nothing to indicate that the transfer of the booklet
announced intention . Therefore , it was found in said cited
case that the discharge for violating the rule was not based
on a pretext . I am of the opinion that whatever motive
Swanson had in mind in engaging in the conduct which
precipitated his discharge it is of no consequence ; rather
the resolution of the issue rests on what Gipp 's motive was
in deciding to discharge him.
Approximately 10 minutes after the shift had started but
before the press had started to run , Swanson handed a
union booklet to Medeiros in the work area of the
mailroom which Gipp, who was standing a short distance
away, observed him do. Medeiros looked at the booklet
briefly and handed it back to Swanson . 13 Shortly thereafter
Gipp approached Swanson and following is Gipp's version
of what occurred , which is credited:
A. Randy Swanson started walking back towards
the machine . I met him half-way and asked him if he
remembered the memo I had read to him about no
soliciting.
He said that he did.
So, I told him to take his Union literature and punch
out for violation of the Company policy of no soliciting.
When Gipp was called as a witness at the beginning of
the hearing by the General Counsel he testified that the
discharge was based in part on the transfer of the book to
Medeiros and in part on the matter which gave rise to the
warning notice (which referred not only to writing on the
blackboard but also to his wearing a bowling shirt with the
Union's name on it). However , near the end of the hearing
when Gipp was testifying as Respondent 's witness he
testified as follows:
Q. (By Mr. Magor) Why did you discharge Mr.
Swanson on that particular morning of October 5?
A. For passing out Union literature.
Q. Did you discharge him for posting a notice of a
Union meeting on the bulletin board in the mailroom?
A. No, I did not.
Q. Did you discharge him for wearing a jacket on
the premises of East Bay Newspapers, Inc., with the
name of the labor union on the back of the jacket?
A. No, I did not.
Q. You did give him a warning notice for those two
events, did you not?
A. Yes, I did.
I cannot credit this testimony regarding the earlier
conduct, for I cannot disregard his earlier testimony that
the discharge was based in part on the "matter which gave
rise to" the warning notice , particularly in view of the fact
that according to his own testimony before he discharged
Swanson he asked him if he remembered the warning
notice . Consequently, I am constrained to infer that the
wearing of the union shirt (which I found to have been
protected activity) was admitted by Gipp to have been a
factor in his decision to discharge Swanson . The General
Counsel argues that this is a "mixed motive" case and, if a
had to be made then and there and his action closely followed the procedure
that he had previously told employees he would follow.
CONTRA COSTA TIMES 703
part of the motive was unlawful, a finding is required that
the discharge was violative of the Act, citing Inland Shoe
Manufacturing Co., Inc., 211 NLRB 843 (1974); U.S.
Chemical and Plastics Division, Alco Standard Corporation,
200 NLRB 1133 (1972); and Reichhold Chemicals, Inc., 187
NLRB 989 (1971). It does not appear, however, that any of
the cases cited will support the proposition for which they
were cited . In the first cited case it was found that the
contention that the alleged discnminatee therein was
discharged for violation of a no-solicitation rule was
"merely pretextual," and that the discharge and refusal to
rehire was "based substantially and practically entirely
upon her union activity." I am not prepared to make a
similar finding in this case . In the second cited case it was
found that the lawful reason for discharge advanced by the
respondent therein would not "in and of itself have
caused" the termination but the "moving factor" was the
discriminatee 's union membership and prominent activity
on behalf of the union. Again, I am not prepared to make a
similar finding in this case . In the third cited case the
breach of rules for which respondent claimed to have
discharged the discriminatee therein was , in effect, found
to have been a pretext, once again a finding I am not
prepared to make in this case. General Counsel also cites
D'Youville Manor Nursing Home, 217 NLRB 173 (1975).
Said case is not applicable to the facts herein , since the
cited case involves a policy of discharge after three written
warnings and one of the warnings in said case was
unlawful.
A case frequently cited in so-called mixed-motive cases is
N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576 (C.A.
5, 1967). In that case the court stated [at p. 582]:
Where an employer fires a union sympathizer, the
General Counsel must show by substantial evidence
that "in the absence of the union activities he would
have treated the employee differently." Frosty Morn
Meats, Inc. v. N.L.R.B., supra, 296 F.2d at 621. A
company can have dominant motives, mixed motives,
equal motives, concurrent motives, and bewildering
combinations of these, but "It must be remembered
that the statute prohibits discrimination, and that the
focus on dominant [or any other like adjective]
motivation is only a test to reveal whether discrimina-
tion has occurred." Id. at 621. To invoke § 8(a)(3), the
anti-union motive need not be dominant (i.e., larger in
size than other motives ); in some cases it may be so
small as the last straw which breaks the camel's back.
We reiterate that all that need be shown by the Board is
that the employee would not have been fired but for the
anti-union animus of the employer. We therefore do
not hold that in this case the general counsel must have
shown "dominant" motive. [Emphasis supplied.]
Despite Gipp's above-mentioned admission, I am not
prepared to find, in the circumstances of this case, that
"but for" Swanson's having worn a union bowling shirt he
would not have been discharged. I am of the opinion that
14 It appears in the cited case that after a decision had been made to
discharge the discriminatee therein for poor work performance, but before it
was effected , management learned that she engaged in protected concerted
activity, and when discharging her an hour thereafter she was told the
Respondent had good cause to discharge him because of
his flagrant breach of the valid no -distribution rule despite
his having been previously warned that a breach of the
rules would result in his discharge , and I do not consider
that this breach of the rule was a mere pretext for
discharging him for his prominent role in the Union's
organizational campaign . There is no showing that there
were other instances in which the Respondent was more
tolerant.
However, in The Youngstown Osteopathic Hospital Associ-
ation, 224 NLRB 574 (1976), the Board stated, "Under
Board precedent if part of the reason for terminating an
employee is unlawful , the discharge violates the Act."
(Emphasis supplied .) 14 In view of the holding in said case
and the admission by Gipp that Swanson 's discharge was
based in part on the matter which gave rise to the warning
notice which included activity on behalf of the Union, i.e.,
wearing the union bowling shirt, I am constrained to
conclude that Swanson 's discharge was in violation of
Section 8(a)(3) and (1) of the Act.
8. Events after Swanson's discharge
According to the credited testimony of Jodi Holmes, the
same morning that Swanson was discharged she had a
conversation with Fonseca about Respondent 's rules. She
was not sure whether anyone else was present. Her
testimony is as follows:
THE WITNESS: Bart Fonseca was saying that some
people didn't think it was legal and he said what they
meant by it was that from the time you punch in to the
time you punch out you are on Company time and they
don't want you discussing the Union.
Fonseca testified that he made such a statement not only
to Holmes but also to a majority of the employees when
they asked him why Swanson was fired . 15 He said that he
told them that he assumed it was because Swanson broke
"one or perhaps all " of the rules. His testimony continues
as follows:
Q. Did you state, in words or substance, that "from
the time you punch in, to the time you punch out, you
are on Company time"?
A. Yes, sir, I did.
Q. Did you also state , in words or substance, "I
don't want you discussing the Union"?
A. Yes, sir.
Although this incident is not alleged in the complaint,
nevertheless it was fully litigated, and, therefore, it appears
that a finding must be made with regard thereto. It is
concluded that Fonseca 's statement constituted a state-
ment of a rule that is overly broad, i.e., the prohibition of
any discussion about the Union during company time
(from the time employees punched in until they punched
out), and thereby Respondent violated Section 8(a)(1) of
reason upon which the decision had been predicated to which was added,
`Besides we heard you were circulating a petition
15 It appears that by this time the employees considered Fonseca part of
management
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act , it having been found that Fonseca is a supervisor
within the meaning of the Act.
Both Gipp and Medeiros testified to a conversation they
had a few days after Swanson was discharged . Medeiros
credibly testified as follows:
A. He asked me why I didn't take the book from
Randy when he handed it to me the night he was fired.
Q. And what did you say in response?
A. That I didn't think it was too cool, and besides I
really wasn't interested.
Q. Did Jack Gipp say anything else to you?
A. He asked me what I felt about the Union, and I
just shrugged it off, really, like I wasn't really interested
in it.
Gipp's testimony corroborates that of Medeiros. It is
concluded that Gipp's attempt to elicit from Medeiros his
attitude toward the Union constitutes unlawful interroga-
tion in violation of Section 8(a)(l) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section III, above, occurring in connection with its
operations set forth in section I, above , have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that Respondent be ordered to
cease and desist from engaging in the unfair labor practices
found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that that portion of the warning
notice issued to Swanson dated October 2, 1975, which
refers to his wearing a jacket with the name of the Union
on its back, is violative of Section 8(aX3) and (1), it will be
recommended that said portion be stricken from said
warning notice.
It having been found that Randy Swanson was unlawful-
ly discharged on October 5, 1975, it will be recommended
that Respondent be ordered to offer him immediate and
full reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges. It
will be further recommended that Respondent be ordered
to reimburse him for any loss of pay he may have suffered
as a result of its discriminatory action against him in the
manner set forth in F W. Woolworth Company, 90 NLRB
289, 291-293 (1950), together with 6-percent interest
thereon in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
16 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.
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent, through Gipp, engaged in unlawful
interrogation of employees in mid-August, the end of
August, and early October 1975 in violation of Section
8(aXl) of the Act.
4. Respondent, through Gipp, Smith, Davidson, and
Fonseca, violated Section 8 (a)(1) of the Act on October 2,
1975, by engaging in unlawful surveillance of employees'
union activities.
5. Respondent, through Gipp, violated Section 8(a)(1)
of the Act by granting wage increases to certain employees
and by granting fringe benefits to two employees in order
to discourage union adherence.
6. Respondent, through Gipp, violated Section 8(a)(1)
of the Act by prohibiting Swanson from wearing a jacket
with the name of the Union on its back and Section 8(a)(3)
and (1) of the Act by issuing to him a warning notice for
wearing the jacket.
7. Respondent violated Section 8(a)(1) of the Act by
maintaining a rule prohibiting solicitation by employees on
the Company's premises after their shift has been com-
pleted.
8. Respondent, through Fonseca, violated Section
8(a)(1) of the Act by his statement to employees in early
October 1975 that they were prohibited from engaging in
any discussion about the Union from the time they
punched in until the time they punched out.
9. Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily discharging Randy Swanson.
10. General Counsel has failed to prove by a prepon-
derance of the evidence the allegations in the complaint
that Respondent violated the Act by Gipp's interrogation
of Hall in mid-August 1975, and by his issuing a warning
notice to Swanson for using the Company's blackboard for
a notice of a union meeting.
11. General Counsel has failed to prove by a prepon-
derance of the evidence that Respondent violated Section
8(a)(l) of the Act by promulgating on or about October 1,
1975, rules against solicitation and distribution of litera-
ture.
Upon the foregoing fmdings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER is
Respondent, East Bay Newspapers, Inc., d/b/a Contra
Costa Times, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.
CONTRA COSTA TIMES
(a) Unlawfully interrogating employees with respect to
their attitude toward San Francisco-Oakland Mailers
Union Local No. 18, International Typographical Union,
or any other labor organization.
(b) Unlawfully engaging in surveillance of its employees'
union activities.
(c) Granting wage raises or fringe benefits to employees
in order to discourage them from supporting the aforesaid
Union, or any other labor organization.
(d) Maintaining a rule prohibiting employees from
engaging in solicitation on company premises after their
shift has ended.
(e) Stating to employees that they are prohibited from
engaging in any discussion about the aforesaid Union, or
any other labor organization, on the Company's premises
from the time they punch in to the time they punch out.
(f) Prohibiting employees from wearing union insignias
while at work and issuing warning notices for their wearing
such insignias at work.
(g) Discouraging membership in the Union, or any other
labor organization, by discriminating against employees in
regard to hire or tenure of employment or any term or
condition thereof.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Strike from the warning notice dated October 2, 1975,
issued to Randy Swanson the reference to his wearing to
work a jacket with the Union's name on the back.
(b) Offer Randy Swanson immediate and full reinstate-
ment to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay suffered by him by reason of his
discriminatory discharge in the manner set forth in the
section hereinabove entitled "The Remedy."
(c) Post at its place of business in Walnut Creek,
California, copies of the attached notice marked "Appen-
dix." 17 Copies of said notice on forms to be furnished by
the Regional Director for Region 20, shall, after being duly
signed by an authorized representative of Respondent, be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for a period of at least 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 20, in
writing , within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of unfair
labor practices in the complaint, other than those which
705
have been found hereinabove to have been proved, should
be, and are hereby dismissed.
17 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees with
respect to their attitude toward San Francisco-Oakland
Mailers Union Local No. 18, International Typograph-
ical Union, or any other labor organization.
WE WILL NOT unlawfully engage in surveillance of
our employees' union activities.
WE WILL NOT grant wage raises or fringe benefits to
employees in order to discourage them from supporting
the aforesaid Union, or any other labor organization.
WE WILL NOT maintain a rule prohibiting employees
from engaging in solicitation on company premises
after their shift has ended.
WE WILL NOT state to employees that they are
prohibited from engaging in any discussion about the
aforesaid Union, or any other labor organization, on
the Company's premises from the time they punch in to
the time they punch out.
WE WILL NOT prohibit employees from wearing
union insignias while at work or issue warning notices
for their wearing such insignias at work.
WE WILL NOT discourage membership in the Union
by discriminating against any employee in the hire or
tenure of his employment or any term or condition
thereof.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under Section 7 of the Act.
WE WILL strike from the warning notice dated
October 2, 1975, issued to Randy Swanson the
reference to his wearing at work a jacket with the
Union's name on the back.
WE WILL offer Randy Swanson immediate and full
reinstatement to his former job or, if his job no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered by
him by reason of his discriminatory discharge.
EAST BAY NEWSPAPERS,
INC. D/B/A CONTRA COSTA
Tim s