United Parcel Service

UNITED PARCEL SERVICE United Parcel Service, Inc. and Victor Solowiow. Case 8-CA-10160 January 13, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 28, 1977, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent, Charging Party, and the General Counsel filed exceptions with supporting briefs and answering briefs; Respondent filed a request for oral argument and a motion to consolidate the instant proceeding with Case 18-CA- 4897, which also involved Respondent; and General Counsel and Charging Party filed statements in opposition to Respondent's motion to consolidate. 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, findings, and conclusions of the Administrative Law Judge as modified herein,' and to adopt his recommended Order, as modified. 1. The Administrative Law Judge found that Respondent did not violate Section 8(a)(1) of the Act when its supervisor, Ray Srp, instructed employee Celia Petty to remove her UP-Surge button. We conclude otherwise. ' Respondent's motion for oral argument is hereby denied as the record and the submitted briefs adequately present the issues involved in this proceeding. Respondent's motion to consolidate is also denied. We note that Case 18-CA-4897 has issued as 230 NLRB 1139 (1977). In the Board's decision there, it also denied Respondent's motion to consolidate that case with the instant proceeding. In dismissing four separate allegations of violations of Sec. 8(aXl) of the Act, the Administrative Law Judge found it unnecessary to resolve conflicts in credibility between the General Counsel's and Respondent's witnesses. The Administrative Law Judge concluded that, even assuming the credibili- ty of his witnesses, General Counsel had not established aprinmafacie case of an 8(aXl) violation in each of the four instances. The Administrative Law Judge, therefore, recommended dismissing the four relevant complaint allegations, Contrary to the Administrative Law Judge, we conclude that General Counsel's evidence in each of the four instances, if unrebutted, would establish violations of Sec. 8(aXI) of the Act. Of course, that evidence is rebutted, making it incumbent on the Administrative Law Judge to make credibility resolutions, which, unfortunately, he failed to do. Ordinanly, a remand for such purpose would be appropriate. However, in view of the other violations found herein which involve similar acts by Respondent, we conclude that the net effect, even were we to find these additional incidents ultimately were violations, would be cumulative and, therefore, a remand of this proceeding is unnecessary. The four allegations on which the Adminis- trative Law Judge failed to make credibility resolutions involve: (I) a confrontation between employee Mackie and Division Manager Kalish during a grievance meeting; (2) and (3) a confrontation between employee Petty and Supervisor Narone regarding the distribution of UP-Surge newspapers, which incident also involved alleged surveillance, and (4) a conversation between employee Davis and Narone during a driving check. 234 NLRB No. 11 In St. Joseph's Hospital, 225 NLRB 348 (1976), the Board reaffirmed the long-recognized principle that an employee is lawfully entitled to wear union insignia while at work and on the employer's prem- ises and that, absent "special circumstances," any rule prohibiting such conduct violates Section 8(aX)(1) of the Act. Examination of the record reveals no "special circumstances," or business justification which would legitimize Respondent's conduct in ordering the removal of the button. Accordingly, such instruction violated Section 8(a)(1) of the Act. 2 2. The Administrative Law Judge found that Division Manager and Director of Labor Relations Kalish's comment to employee Victor Solowiow, "Are you still passing out the newspaper (UP-Surge), followed by the question whether Solowiow really liked working for the Company, was neither an unlawful interrogation nor a threat in violation of Section 8(a)(1) of the Act. The Administrative Law Judge found it significant that the conversation occurred outside Kalish's office, and found the initial question to be an innocuous opening to a casual conversation and the second inquiry to be a natural remark that might arise during a discussion between an admitted writer for UP-Surge and a representative of management. The Administrative Law Judge determined that the comment did not necessarily carry with it an implied threat of discharge. We find merit in General Counsel's exception to this finding. Contrary to the Administrative Law Judge, we find that what Kalish intended to convey to Solowiow by the questioning is irrelevant. Rather, we judge the comment on its face and in the context in which it arose. Applying these standards, we Member Jenkins would find that Supervisor Hill's May 25, 1976. interrogation of Mackie violated Sec. 8(aXI) of the Act. In finding a violation of Sec. 8(aX I) of the Act in Respondent's 15-minute rule, Chairman Fanning notes specifically that he finds the rule itself invalid under the teachings of Tnri-Conty Medical Center, Inc.. 222 NLRB 1089 (1976). For the reasons stated by her at fn. 4 in United Parcel Service, Inc., 230 NLRB 1147 (1977), Member Murphy believes that the employees' right to publish and distribute the newspaper. UP-Surge, is protected not only by Sec. 7 of the Act, but also by the first amendment to the Constitution. Thus, as the Supreme Court said in William C. Linn v. United Plant Guard Workers of America, Local 114, et at. 383 U.S. 53, 6263 (1966): We acknowledge that the enactment of I 8(c) manifests a congres- sional intent to encourage free debate on issues dividing labor and management. And, as we stated in another context, cases involving speech are to be considered "against the background of a profound... commitment to the principle that debate . . . should be uninhibited. robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Such consideration likewise weigh [sic] heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. [Footnote omitted.] 2 It appears from the record that Srp also instructed employee Christina Bergmark to remove her UP-Surge button. For the reasons set forth herein, we find this conduct is also violative of Sec. 8(a)X ) of the Act. 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude that the inquiry by a high-level representa- tive of Respondent of an employee who has engaged in writing and distributing papers containing articles that are highly critical of Respondent, as to whether he really liked working for the Company, was itself a tacit threat of reprisal for the employee's involvement in protected activities and a violation of Section 8(a)(l) of the Act.3 3. The Administrative Law Judge found that, during a conversation between Supervisor Gary Bowman and employee Al Davis at Davis' home in January 1976, Bowman violated Section 8(a)(1) of the Act by: (1) threatening Davis for pursuing a grievance, and (2) conveying the impression that Respondent was unlawfully engaged in surveillance of UP-Surge activities. We adopt these findings of the Administrative Law Judge. The General Counsel has taken exception, how- ever, to the Administrative Law Judge's failure to pass on the allegation that Bowman's questioning of Davis concerning his association with UP-Surge leader Anne Mackie also constituted an unlawful interrogation. We note the Administrative Law Judge's failure to consider this matter and, upon careful examination of the record, we conclude that Bowman's interrogation of Davis was an unlawful probe into his UP-Surge activities in violation of Section 8(a)(l) of the Act. 4. The Administrative Law Judge also found that Respondent violated Section 8(a)(1) through Supervi- sor Narone's instruction to employee Davis, on an unspecified day in October 1975, not to keep copies of UP-Surge in his personal possession. We adopt this finding. The General Counsel contends, how- ever, that this incident actually consisted of two separate confrontations and that Respondent en- gaged in unlawful surveillance between the two. Contrary to the General Counsel, we find that the above-described occurrence, set forth in detail in the Administrative Law Judge's Decision, was comprised of but a single conversation and that no surveillance occurred. Accordingly, we shall dismiss that allega- tion of the complaint. 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, United Parcel Service, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Insert the following as paragraph l(f) and reletter the subsequent paragraphs accordingly: "(f) Telling employees that they are not allowed to wear UP-Surge buttons during working hours." 2. Substitute the attached notice for that of the Administrative Law Judge. 3 In reaching his conclusion that there was no violation here, the Administrative Law Judge also relied on the fact that the conversation did not take place in Kalish's office but at Solowiow's truck. We note that, while a statement made within the confines of a supervisor's office may add to the coercive nature of a remark, the fact that an illegal statement is made at an employee's work area rather than in a supervisor's office does not diminish its proscribed effect. We note that the Administrative Law Judge, through- out his Decision, appeared to put an undue emphasis on where a conversation occurred in assessing its legality. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. WE WILL NOT coercively interrogate our em- ployees concerning their activities on behalf of UP-Surge. WE WILL NOT threaten our employees with reprisals for engaging in concerted activities on behalf of UP-Surge. WE WILL NOT give the impression among our employees that their activities on behalf of UP- Surge are under surveillance by supervisors. WE WILL NOT inform or direct employees that they may not possess the newspaper UP-Surge on their person during working hours. WE WILL NOT prevent off-duty employees from distributing literature or otherwise engaging in concerted activities in nonworking areas of our property in the absence of a valid rule prohibiting off-duty employees from entering or remaining on our premises for any purpose. 224 UNITED PARCEL SERVICE WE WILL NOT tell employees that they are not allowed to wear UP-Surge buttons during work- ing hours. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. UNITED PARCEL SERVICE, INC. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This proceed- ing, held pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), was heard at Cleveland, Ohio, on November 8-11, 1976,1 upon due notice. The issues raised by the pleadings2 are, in essence, whether United Parcel Service, Inc. (herein the Company or Respondent), interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act by interrogating, threatening, and otherwise intimidating them in the exercise of concerted activities protected by Section 7 of the Act. Subsequent to the hearing, helpful posthearing briefs were filed by counsel for all parties, which have been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, 3 I make the following: FINDINGS AND CONCLUSIONS I. THE ALLEGED UNFAIR LABOR PRACTICES 4 A. Background Respondent is a corporation engaged in the transporta- tion and delivery of packages and parcels, with offices and terminals located in many States of the United States. Its Cleveland, Ohio, facility is the only facility directly involved in the instant proceeding. At all times material, the truckdrivers and warehousemen employed by Respondent at the Cleveland facility have been represented for purposes of collective bargaining by Local No. 407, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (here- in the Union). All employees in the unit are members of the Union pursuant to the union-security clause in the collec- tive-bargaining agreement. It appears that during the summer of 1975, employee Anne Mackie, a package delivery driver, was quite dissatis- I All dates hereinafter refer to the calendar year 1976, unless otherwise indicated. 2 The original charge is dated May 27, and the complaint issued July 28. The answer of Respondent was filed August 5. 3 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159. 1161 (1966). 4 There is no issue as to the Board's jurisdiction in this case. The complaint alleges sufficient facts, which are duly admitted by the answer, upon which I may, and do hereby. find that Respondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. fled with some of her working conditions. She talked to other employees, including employees of the Company in other cities, concerning the possibility of publishing a newspaper which would provide an organ in which such dissatisfactions could be vented, and which would provide a means of communication among employees of the Company. In September 1975, Mackie edited and pub- lished at an office located in her home the first edition of a newspaper entitled "UP-Surge." The newspaper states on the masthead that it is the "Monthly UPS Workers' Paper" and also located on the masthead are the words: "Use the Union's power." Mackie testified that the staff of the paper in Cleveland consisted of six persons, four of whom were employees of the Company (which did not include 12 employees who distributed the newspaper).s In addition to the publication of the newspaper, the group caused to be produced and printed various other paraphernalia identifying the group such as license plates, buttons, decals, etc. The license plate, for example, has a replica of the newspaper's masthead printed on it; the buttons and decals have a picture of a snake across which is printed the word "UP-Surge" and around which is further printed the phrase "Ready to Strike for a Decent Contract." The above symbols (license plates, buttons, etc.) were sold to employees (and anyone else who would buy them), which helped to provide the financing for the publication of the newspaper.6 In addition to the above-described activities, the group held meetings in local motels in the Cleveland area, as well as subsequently attended meetings with UP-Surge groups in other cities. Members of the group also attended meetings of the Union, and, after negotiations commenced between the Union and the Company for a new contract, distributed petitions listing demands which their group thought that the Union should make upon the Company for the purpose of improving working conditions. These demands (which numbered 10) were printed in the newspa- per as well as on petitions which were distributed by the group to other employees and members of the Union. They included, for example, demands that part-time employees be paid at the same rate as full-timers; that the grievance procedure be improved; that supervisors not perform work of union members except under certain conditions; that all overtime be voluntary and paid at double time; and that employees have the right to refuse to operate unsafe equipment. The demands also requested more sick days and the addition of a holiday. By the time of the complaint herein, there had been published 14 issues of the newspaper, UP-Surge. The newspaper is in tabloid form and consists usually of from four to eight pages. The contents of the paper generally reflect the views and reports of activities of UP-Surge groups in various locations in the country. As might be I The first edition of the paper had a circulation of approximately 4.000, and was distributed at the Company's facilities in such other major cities as New York, Chicago. Boston, and Los Angeles. Subsequently, circulation increased to approximately 10,000, but at the time of the hearing it had decreased again to approximately 6,000, and was distributed in approxi- mately 45 States. 6 The newspaper itself was sold individually, or for a subscription price of $3 for 10 issues. 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expected, there are many articles critical of the Company and of the Union where the editors and writers thought that these organizations were not attendant to or sympa- thetic with the interests and working conditions of the rank-and-file employees. The paper usually contains one or more cartoons which are critical of some of the activities and conduct of company supervisors, and/or seek to ridicule such agents. As might be expected, during the strike which occurred at the Company's midwest facilities during May, the newspaper reported on the activities of employees, strikers, union and company officials, and was quite critical of any activities of the latter two groups which was thought to be detrimental to the contractual demands of the UP-Surge group. B. Respondent's Contentions and Statement of the Issues As previously mentioned, the General Counsel contends that the activities of the UP-Surge "organization," ? in addition to the publication of the newspaper, constituted concerted activity protected by Section 7 of the Act, and that by various conduct of Respondent's supervisors, which included coercive interrogation, threats, surveillance, etc., Respondent violated Section 8(a)(1) of the Act. The Company, for its part, contends that UP-Surge is a newspaper only-not an organization-and that it is so filled with obscene, offensive, false, and malicious state- ments that whatever protected status it might otherwise possess under Section 7 has been rendered unprotected. The Company further argues that the evidence failed to substantiate the allegations of the complaint insofar as they alleged violative conduct on the part of supervisors and other officials of the Company. Since the status of UP- Surge is at the center of the controversy, it is necessary to resolve that issue at the outset. C. The Status of UP-Surge The record evidence amply supports the contention of the General Counsel and the Charging Party that UP- Surge is a newspaper, but it is also more than that. It is a loose organization of employees of Respondent (plus a few other persons such as friends, spouses, and fiances of employees) who have a common interest in the betterment of their wages, hours, and working conditions while working for Respondent. It is, of course, true that the newspaper which was conceived and promulgated by this relatively small group constituted the fulcrum about which the movement turned, and was the most important instru- ment through which the group exchanged ideas and published them. However, as the evidence shows, the group also participated in union meetings, held meetings of their own, and caused to be produced other indicia in which they exposed themselves as a group which was seeking to improve their working conditions. I At the hearing, the complaint was amended to allege that UP-Surge, in addition to being a newspaper, was also an organization which was designed to inform and influence Respondent's employees concerning the actions and policies of Respondent and the Union with respect to wages, hours, and working conditions. s The Company does not, of course, produce a product, but rather provides a service to its customers. It is elemental and well established that such conduct constitutes concerted activities for mutual aid and protec- tion protected by Section 7 of the Act. However, as above-noted, Respondent argues that such protection as may have been accorded under normal circumstances was forfeited by the editors and publishers of the newspaper through the insertion therein of certain obscene, offensive, false, and malicious statements and material which defamed and disparaged Respondent's officials, supervisors and "product." 8 Attached to Respon- dent's brief is an appendix which purports to synopsize those articles and/or cartoons in each issue of the newspa- per which Respondent contends are "offensive, false, malicious and serve no legitimate organizational objec- tive." Without attempting to include all such contentions, it may be briefly noted that such articles and/or cartoons contain accusations that Respondent engages in racial or sexual (antifemale) discrimination; "false" statements such as the assertion in the newspaper that Respondent dis- charged an employee because he could not lift a handtruck that management had loaded with 400 pounds of packages, or that a female employee was discharged because she failed to follow an instruction to keep both hands on the steering wheel while shifting gears; "obscene" material such as a cartoon which depicts a mushroom wearing a company hat with a caption which states that the Company keeps employees "in [the] dark, covers them with shit, and then cans them," or an article which alleges that the Company continually breaches the collective-bargaining agreement, and states that "the rank-and-file will continue to get shit on from the Company and the Union"; and defamatory statements such as referring several times to supervisors as "stupidvisors," or "human bastards," or "egotistical jerks." Other articles cited by Respondent assertedly refer to wrongful or illegal conduct such as an article which suggested that arbitrators were "bought off" by the Company and that during the strike the Company "bought temporary restraining orders at $500 to $1,000 a piece from federal judges to force people off the picket line under the threat of mass arrest."9 Although standards of decency, morality, and obscenity may vary from time to time, from person to person, and from community to community, it may be assumed for the purpose of this discussion that certain of the above-cited articles are sufficiently inflammatory and contain language and material considered as "obscene" by existing stan- dards that, were they considered alone, it might be concluded that such statements and/or material would constitute unprotected activity under the statute. Thus, for example, in Southwestern Bell Telephone Company,'0 23 employees came to work wearing sweat shirts carrying the slogan, "Ma Bell is a cheap Mother." The respondent in that case directed that the employees cover up the "objectionable inscription" or leave the company premises. In finding no violation of the Act under the circumstances of that case, the Administrative Law Judge (affirmed by 9 Mackie, on cross-examination, attempted to explain that article by stating that she had reference to the indemnity bonds which the Company was required to post in order to obtain the restraining orders. l' 200 NLRB 667, 669 (1972). 226 UNITED PARCEL SERVICE the Board) noted that "[t he altimate question in each case calls for 'an adjustment between the undisputed right of self-organization assured to employees . . . and equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society' Republic Aviation Corp. v. N.LR.B., 324 U.S. 793, 797-798." The Administrative Law Judge went on to hold that the slogan was construed as an obscenity directed at management which existed during the entire workday; that "Respondent was not required to suffer such indignity"; and that "[t]his is not a case where an employer has taken or has threatened to take reprisals against employees for merely characterizing the employer as 'cheap' or parsimonious." Another case in which employee concerted activities were held to be unprotected was the rather celebrated case of N.L.R.B. v. Local Union No. 1229, International Brother- hood of Electrical Workers [Jefferson Standard Broadcasting Company]. 1 In that case, the employees, without striking, picketed the Company's premises with placards and hand- bills which originally charged the Company with unfairness because of the latter's refusal to renew the provision for arbitration of discharges. However, about a month and a half later, the picketers distributed handbills which dispar- aged the quality of the Company's product, and the Company discharged the employees therefor. The Court, in holding that the employees' conduct was not protected by the Act, noted that "[t]he handbills made no reference to the union, to a labor controversy or to collective bargain- ing." 12 The Court went on to hold: The fortuity of the coexistence of a labor dispute affords these technicians no substantial defense. While they were also union men and leaders in the labor controversy, they took pains to separate those catego- ries. In contrast to their claims on the picket line as to the labor controversy, their handbill of August 24 omitted all reference to it. The handbill diverted attention from the labor controversy. It attacked public policies of the company which had no discernible relation to that controversy. The Board stated, "We ... do not decide whether the disparagement of product involved here would have justified the employer in discharging the employees responsible for it, had it been uttered in the context of a conventional appeal for support of the union in the labor dispute." Id., at 1512, fn. 18. This underscored the Board's factual conclusion that the attack of August 24 was not part of an appeal for support in the pending dispute. It was a concerted separable attack purporting to be made in the interest of the public rather than in that of the employees. u 346 U.S. 464(1953). 12 346 U.S. at 468. I' 351 F.2d 584, 587 (C.A. 7. 1965). In the instant case, unlike Jefferson Standard and Southwestern Bell, the offensive material is intimately and inextricably comingled with articles, letters, and other material relating to the UP-Surge group's battle for better working conditions. Without attempting to count or weigh the number of articles which may be considered unprotect- ed because of obscenities, defamation, etc., compared to those which are clearly protected, it may be safely found that the latter are in the majority and that the basic thrust of the newspaper is for an objective protected by the statute and not the other way around. In this connection, it should be emphasized that, unlike the situation in Jefferson Standard, there is no substantial evidence in the instant case that the offensive material deprecated or disparaged the Company's "product," or that the appeal of the publishers of the newspaper was to the public rather to employees of Respondent. In N.L.RB. v. Thor Power Tool Company,'3 the Court said: As other cases have made clear, flagrant conduct of an employee, even though occurring in the course of section 7 activity, may justify disciplinary action by the employer. On the other hand, not every impropriety committed during such activity places the employee beyond the protective shield of the act. The employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain order and respect. I note that there is a dearth of evidence in the instant record that the employees' activities have resulted in-or threaten to result in-a breakdown of "order and respect" at Respondent's facility. As the Court of Appeals for the Fifth Circuit observed in Crown Central Petroleum Corporation v. N.LR.B., 14 "pas- sions run high in labor disputes and epithets and accusa- tions are commonplace," citing William C. Linn v. United Plant Guard Workers of America, Local 114, et al., 383 U.S. 53 (1966), where the Court approved the Board's finding that some epithets are not so indefensible as to remove them from the protection of Section 7, "even though the statements are erroneous and defame one of the parties to the dispute." Finally, I find that there is insufficient evidence in this record upon which to base a finding that the offensive statements were made with a deliberate or malicious intent to injure Respondent. Paraphrasing the language of the Court of Appeals for the Fourth Circuit in Owens-Corning Fiberglas Corporation v. N.LR.B.'5: The basic message of the [newspaper] was not so distorted by minor misstatements as to show malicious intent. "Employees do not forfeit the protection of the Act if, in voicing their dissatisfaction with matters of common concern, they give currency to inaccurate information, provided that it is not deliberately or maliciously false." Walls Manufacturing Co., Inc., 137 14 430 F.2d 724 (1970). '5 407 F.2d 1357. 1366 (1969). 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 134 (1962), enfd. 116 U.S. App.D.C. 140, 321 F.2d 753 (1963), cert. denied 375 U.S. 923, 84 S.Ct. 265, 11 L.Ed.2d 166 (1963).16 Under all circumstances, therefore, I find that the publication of the newspaper, UP-Surge, was a concerted activity protected by Section 7 of the Act. However, even if it were determined that the publication of the newspaper was unprotected because of the obscene and defamatory material discussed above, it would not render the remain- der of the UP-Surge group's activities, above-described, as unprotected since most of the participants in the various activities of the group had nothing to do with the publishing and distribution of the newspaper. We now turn to the incidents alleged by the General Counsel as violations of Section 8(a)(1) of the Act. D. Alleged Interference, Restraint, and Coercion 1. As regards Anne Mackie The complaint alleges that in late December 1975, at a step I grievance meeting, Respondent "coercively informed an employee that she was a troublemaker in order to discourage her from engaging in protected concerted activities." The evidence shows that Mackie was involved in a grievance meeting on December 18, 1975, resulting from her failure to pick up a package. Mackie claimed that the reason she failed to pick up the package was because it was "hazardous," and not filled out properly, but her supervisor requested that she be suspended for a day because of such conduct. Mackie argued that the reason the supervisor was seeking a suspension was because she was active in UP-Surge. At that point, Mike Kalish, Respondent's division manager and supervisor of labor relations, made a comment respecting the individuals who had exploded a bomb at LaGuardia Airport a few days earlier. Mackie claimed that Kalish likened her to the people who set off the bomb and said that she was a "troublemaker" like them. Kalish denied that the reference was to Mackie, asserting that he said, "It is a shame the condition of the world that some innocent people had to suffer." I deem it unnecessary to resolve this particular credibility issue since, in my view, even if Mackie's version be credited, a violation of the Act would not ensue. It has been often stated that in grievance meetings the parties should have full freedom to state their respective positions, and that this freedom necessarily expands the bounds of antagonistic behavior. Indeed, in Thor Power Tool Compa- ny,17 cited in the General Counsel's brief, the crux of the Board's holding appears to be that the offensive remark made by the employee was protected because it was uttered 16 See also Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO, et al. v. Austin et at., 418 U.S. 264 (1974), where, in a case arising under a state libel law, the Court discusses the protection afforded a union newsletter under Sec. 7 of the Act. Quoting the language of Mr. Justice Clark in the Linn case: "the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth." 383 U.S. at 63. i7 148 NLRB 1379 (1964). is 148 NLRB at 1387. 19 It will be recalled that the test of an 8(aXl) violation is "whether the employer engaged in conduct which, it may reasonably be said, tends to in the context of a bargaining negotiation which "should be free, frank, and uncensored." 18 It would seem that the law should apply equally in protecting each party in these instances, and I do not regard the remarks here made to be coercive under the particular circumstances.1 9 I will there- fore recommend that this allegation of the complaint be dismissed. On May 25, while on a methods evaluation ride, Supervisor Ron Hill asked Mackie if she had not "gotten in over [her] head respecting her participation in UP-Surge, and wasn't she making a bundle of money from it." The record does not reflect that she made any response. I cannot agree with counsel for the General Counsel that such questioning constitutes interference, restraint, and coercion under the circumstances. Thus, the locale was at work-not in the sanctum of the supervisor's office. It would certainly be expected that in the course of the evaluation ride the supervisor and employee would casu- ally converse about many subjects of common interest, and it would further be expected that since the employee here was known to be the editor of UP-Surge, that subject might arise. The nature of the question was not as to other employees involved, nor did it imply that the employer was seeking information for the purpose of retribution. It was simply whether the newspaper and/or other activities of the organization was a financial success. As stated, I cannot agree that such inquiry amounts to coercive interrogation, and will therefore recommend that the complaint be dismissed to that extent.20 2. Celia Dunlap Petty Petty was a part-time preloader at Respondent's facility until August, when she resigned. Commencing in or about December 1975, she was active in the UP-Surge movement, attending meetings, writing articles for-and distributing- the newspaper, wearing an "UP-Surge" button, and distrib- uting the petition containing the rank-and-file contract proposals. On a morning in March, at approximately 4 a.m., Petty was in Respondent's cafeteria, presumably during a break, having coffee. She had a stack of UP-Surge newspapers with her. She testified that two supervisors (one of whom was Jerry Narone) came up to her and "sort of grabbed ahold of the pile", and that he advised Petty that she was not "allowed to have these in here." She responded that they were her personal property, and that since she was in a nonworking area it was her understanding that she could have them. He replied "then you're not going to give them to me?", and Petty said, "No, I am not going to give them to you," and they left the cafeteria. Petty said that she saw them return a few minutes later with another supervisor interfere with the free exercise of employee rights under the Act." American Freightways Co., Inc., 124 NLRB 146, 147 (1959). 20 In his brief, counsel for General Counsel recites another instance from Mackie's testimony concerning a statement made to her by a Pinkerton guard employed by Respondent. This incident was not alleged in the complaint (which was amended at the commencement of the hearing), but counsel argues that an 8(aXl) finding should be based thereon because the incident was "fully litigated" by the parties. I do not agree. Respondent made no effort to defend this occurrence either by calling the guard as a witness, or otherwise. I therefore, under all circumstances, decline to base a finding thereon. 228 UNITED PARCEL SERVICE (John Mirotto), and that they stood at the cafeteria door and watched her for a while until she left to go to work. The complaint alleges, in essence, that on this occasion the Respondent's supervisors unlawfully and coercively "seized" the newspapers and engaged in surveillance or gave the impression of surveillance, in violation of Section 8(aXI) of the Act. In my judgment, even accepting Petty's version of the incident, substantial evidence on the record does not support the allegation that the newspapers were "seized" or that the supervisors stationed themselves outside of the door for the purpose of observing Petty's distribution of the papers. In the first place, the record shows that copies of the newspaper were normally avail- able in the cafeteria so that it was not necessary for a supervisor to "seize" copies. Secondly, there was admitted- ly no rule against distribution of the newspaper in the cafeteria, and presumably it had been so distributed since its first editions by Petty as well as other supporters of UP- Surge. Accordingly, these activities of the latter were, and had been, open and notorious. Therefore, I am unable to conclude that the stated conduct of the supervisors, without more, constituted surveillance or the impression of surveillance as those terms have been interpreted under the Act. I shall therefore recommend that the complaint, to that extent, be dismissed. On April 30, Petty was called into the office of Supervi- sor Wayne Tomsic. Both participants agree that the topic of conversation related to the upcoming strike which, presumably, had just been authorized by a union vote. That is about the extent to which their versions of the conversation coincided. Petty testified that Tomsic asked her what she thought about the strike and what UP-Surge had to do with it. She responded that it was a union- sanctioned strike, that "we voted for it at the meeting," and that UP-Surge did not have anything to do with it in that sense. Tomsic responded that he hoped "all you people know that this stuff you're doing with UP-Surge will just hurt you in the long run." Tomsic denied that there was any discussion in connec- tion with UP-Surge at the meeting with Petty; and asserted that she was called in because the Company was "doing an employee update," i.e., obtaining correct information (names and addresses) for employees so that "everybody could get a ballot to vote, if there was going to be a strike or not." He denied that he stated anything to Petty other than telling her to fill out the card. I am unable to credit Tomsic's version of this incident. In addition to demeanor considerations, I find the purpose of the interview as stated by Tomsic to be somewhat unlikely. This is to say, it is normally the Union which conducts strike balloting-not the Company. Moreover, there was no testimony that any supervisor other than Tomsic conducted any such inter- views at that time, nor was there testimony from other employees to corroborate Tomsic's version. Furthermore, I am unable to believe that Petty fabricated the conversation out of the whole cloth. Under all circumstances, I credit Petty's version and find that the interrogation and implied threat made by Tomsic constituted interference, restraint, 21 She testified that she was weanng the button on her jacket on the left shoulder or chest. 22 The record reflects that "Teamsters For a Decent Contract" is another and coercion within the meaning of Section 8(a)(l) of the Act. As previously mentioned, wearing an UP-Surge button was one of the activities in which Petty engaged in support of UP-Surge. She testified that she commenced wearing one of the buttons in late January, and wore it for about a month; that at that time one of the supervisors at the Company (Ray Srp) told her that she could not wear the button while at work because it was a safety hazard.21 Srp admitted that he requested Petty (as well as Christina Bergmark, another employee who supported UP-Surge) to remove the button because of the safety factor; i.e., that where she was wearing the pin might cause injury to herself through the rubbing against it of packages which she carried. It is, of course, by now well established that the wearing of a union button, or button constituting support of a group such as UP-Surge, by an employee in a plant such as Respondent's constitutes protected activity, and ordinarily a violation of Section 8(aXl) would ensue through Respon- dent's direction to the employee that such button be removed while at work. Here, the issue is whether the safety factor asserted by Respondent as the reason for the direction constitutes the "real reason." In that connection, there is no evidence that Respondent maintained a written rule regarding the wearing of buttons by employees at work. Apparently, some employees wore various kinds of buttons from time to time on their person without direction of removal by Respondent's supervisors. Indeed, Petty testified that during November and December 1975 she wore a button with the inscription, "Teamsters For a Decent Contract" on it; 22 and that Srp had requested other employees to remove pins which he thought were danger- ous including "one of these 'Smile' buttons." The record also shows that some employees wore UP-Surge T-shirts while at work, and there is no evidence that Respondent ever directed an employee to remove (or not to wear) such a garment while at work. Although the circumstances are suspicious, i.e., one might not necessarily agree with Supervisor Srp that the wearing of such a pin constituted a safety hazard, and indeed there is no evidence that other supervisors of Respondent gave similar directions to employees, the fact remains that other supporters of UP-Surge were permitted to wear buttons as well as other insignia of support for that movement without incident. Accordingly, I find and conclude that the General Counsel did not sustain his burden of proving by a preponderance of the evidence that under the circumstances of this case the objective of Respondent was to interfere with the concerted activities of its employees by directing two of them not to wear UP- Surge buttons. I shall therefore recommend that the complaint, to this extent, be dismissed. 3. Christina Bergmark In March, on the day following the occasion when Christina Bergmark was requested to remove her UP-Surge dissident group organized among Reapondent's employees which apparently had a similar objective as the UP-Surge group, and that some employees supported both organizations. 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD button, she was called into the office of her supervisor, David Henry, for a "talk and listen" session.23 Henry, who had been a supervisor with the Company since 1975, advised Bergmark that he considered that she performed her job adequately and that she was responsible and competent. After some discussion concerning her job performance, Henry asked why she had become involved in UP-Surge, to which she replied that she did not care to discuss that subject with him because he, as a supervisor for the Company, and she, as an employee, had different interests. Henry's version is that he knew that she was a member of UP-Surge and stated that "no matter what her feelings were or her personal beliefs, that we would have to get along on the job; that I tried to treat everybody and everyone fairly, regardless of their own personal beliefs or feelings, and we should have open communications with each other." After careful consideration of the circumstances, I am of the opinion that Bergmark's version should be credited. In addition to demeanor considerations, I have considered that the conversation took place on the day following the incident regarding her wearing of an UP-Surge button, and I am convinced that Respondent utilized the T and L session as a means of attempting to ascertain more information concerning the UP-Surge movement in the plant. However, Bergmark was not cooperative in this regard, and the session was not fruitful from Respondent's point of view. Nevertheless, such interrogation, taking place in the sanctum of the supervisor's office without any assurance against recrimination, is coercive and therefore constitutes interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. 24 4. Victor Solowiow This employee testified that he had two conversations concerning UP-Surge with Division Manager Mike Kalish during the course of his employment with Respondent. The first such conversation took place the first day the participants in UP-Surge passed out the newspaper in September. Kalish had a copy of the newspaper in his hand when he asked Solowiow, "Hey pal, come over here. What are you trying to do to me? What are you getting involved in a communist organization for? Do you really like working here?" Solowiow responded, "Yes, I do." Kalish then asked him who did the writing for the newspaper and Solowiow did not respond. 25 The second conversation took place in December when Kalish approached Solowiow in his truck. At that time, Kalish also had a copy of the newspaper in his hand and asked, "Are you still passing out the newspaper?" Solow- iow responded affirmatively. Kalish asked if he really liked working for the Company, to which Solowiow responded, "Yes, I really do, but I really don't like the people I work for (meaning personalities-not the Company)." Kalish acknowledged that he was "curious about the newspaper. . . it was a newspaper, and I was trying to find 23 A "talk and listen" session (sometimes referred to in the record as a T and L session) is a routine procedure adopted by the Company wherein a supervisor calls in an employee for the purpose of having a rather informal discussion concerning the employee's work progress and problems, if any. 2' See, e.g., Bonnie Bourne, d/hb/a Bourne Co. v. N.L.R.B., 332 F.2d 47 out about it. It is my responsibility to do that. It was directed against the Company and there [were] derogatory remarks which were made about the Company and the supervisors." He did not testify concerning the conversa- tion in December. The complaint alleges that the statements of Kalish to Solowiow in December constitute an unlawful interroga- tion and threat in violation of the Act. I cannot agree. It seems significant that the conversation took place at Solowiow's truck, and not in Kalish's office. It is also noted that Kalish had a copy of the newspaper in his hand as he approached Solowiow. Kalish knew from the September conversation (if not, in addition, from subsequently observ- ing Solowiow, or from other sources) that Solowiow was one of the principal participants in the UP-Surge move- ment. Accordingly, I view the question, "Are you still passing out the newspaper?", as simply a rather casual and introductory comment to a conversation, and not a coercive inquiry. Moreover, while the question whether Solowiow liked working for the Company might be construed as an implied threat, I do not believe it to be so in context. That is to say, it is readily apparent that the newspaper was quite critical of the Company's policies and the conduct of some of its supervisors, as hereinabove related. It would seem to be a rather natural inquiry that a supervisor might inquire of one of the admitted writers for the paper whether he "really liked working for the Company," without such question carrying the implication that the employee was subject to discipline or discharge for engaging in such conduct. In that regard, the record does not show that any participant in UP-Surge had been so disciplined by Respondent. In sum, the evidence does not, in my judgment, preponderate in favor of the General Counsel as to these allegations of the complaint, and I shall recommend that the complaint be dismissed to that extent. 5. Al Davis Davis has worked for the Company since July 1968, the last 2 years as a tractor-trailer driver. He testified without contradiction that since the newspaper, UP-Surge, had commenced publishing in September 1975, he had had discussions of the same with some of the supervisors of Respondent, naming Mike Kalish, Jerry Narone, and his former center manager, Gary Bowman. Such conversations occurred several times a week from late September 1975 to January. Davis testified that the discussions centered around the articles that were written in the paper, and that "we were told that anybody that got involved with UP- Surge or with Anne Mackie, that they would be in trouble with the Company." In January, Bowman visited Davis at the latter's home on one occasion; however, the testimony of the two men varies substantially as regards the purpose of the visit as well as the conversation which occurred thereat. Thus, Davis testified that Bowman came to his house for the purpose of talking Davis out of a grievance the latter had (C.A. 2, 1964); N.L.RB. v. Cameo, Incorporated, 340 F.2d 803 (C.A. 5, 1965). See also Shows, Inc., d/b/a Valley Cable TV Co., 228 NLRB 1355 (1977). 25 No finding of violation is made with respect to this conversation since it took place outside the 10(b) period. 230 UNITED PARCEL SERVICE filed, and that he spent approximately 2 hours discussing this matter as well as other subjects such as UP-Surge and Anne Mackie. Bowman asked Davis if he knew that Mackie was a socialist to which Davis said, "No, I don't know that." Whereupon, Bowman said he had proof and went out to his car and came back with the newspaper, UP- Surge. He pointed to a column which assertedly confirmed his statement, and stated that if you (Davis) support Anne Mackie, "you are supporting socialism and communism and they're going to take over the Company and they're going to take over the Union land] that will ruin every- thing." When Davis asked Bowman how the latter ob- tained the paper, he responded that "he had someone obtain 10 copies each time it was printed before they were mailed out to the membership," but he would not divulge to Davis the name of such person. As Bowman left Davis' house, he said, "You know, Al, win or lose, you still lose." When Davis asked what he meant by that, Bowman replied that the Company could make things "bad for you by recording each mistake that Davis made," and "we can write a letter to the Union on you, and after we have enough information, enough mistakes, we can have a grievance and further processing could mean that we could get your job." Bowman asserted that the sole purpose of his visit to Davis' house was to deliver the latter's paycheck, and denied discussion of any of the above matters relating to a grievance or to UP-Surge. He testified that he did not know of Davis' connection with UP-Surge until he observed him on a televised picket line while on strike on or about April 30.26 The credibility resolution as to this incident has been, as Respondent suggests in its brief, a difficult one. However, after a consideration of all factors, including demeanor considerations, I find in favor of Davis. I note, inter alia, that he was quite specific on several items which could have been-but were not-controverted on the record. Thus, he was quite specific as to Bowman's assertion relative to Mackie's association with socialism and Bow- man's securing of the newspaper with an article supposedly confirming Bowman's claim. As Respondent points out in its brief, such an article does, in fact, appear in the paper. Secondly, Davis was specific with respect to the nature of the grievance which had been filed, apparently against another supervisor (or supervisors), and they had asked Bowman (who was a good friend of Davis') to go out to his house and talk to him about it. As above-stated, this was not controverted in the record. Finally, I note, as General Counsel argues, that the testimony of Davis to the effect that he had not been absent from work with the Company until May is uncontroverted and, therefore, there was little occasion for Bowman to have felt it necessary to deliver his paycheck (assuming Davis had neglected somehow to pick it up at the plant) unless some other reason was extant. Accordingly, I credit Davis and find that the statements of 2 Davis did not assert that he participated in the UP-Surge movement prior to the January incident. As related above, his only involvement was reading the newspaper up until that time. However, he testified that subsequently, in March or April. he commenced distributing the newspaper. 27 See, e.g., John H. Creps, et al., d/b/a Creps United Publications, 228 NLRB 706 (1977). 2s During the course of the workday on May 19, Supervisor Narone Bowman on this occasion constituted unlawful threats of reprisal for engaging in protected concerted activities, and created the impression of surveillance of such activities by adverting to a secret procurer of the newspaper before it was distributed to the membership. On May 17 and 18, Davis did not report for work with Respondent, claiming that he was sick. When he returned to work on May 19, he was asked by Supervisors Larry Mitchell and Jerry Narone to produce a doctor's excuse. The complaint alleges that such conduct on the part of Respondent was in reprisal because "he had, or Respon- dent believed he had, engaged in protected concerted activities, including, among other things, activities on behalf of 'UP-Surge'." Respondent maintained no written rule respecting the necessity of an employee producing a doctor's excuse for sick leave. Davis claimed that Respon- dent's policy was that an employee was required to produce a doctor's excuse if he had "excessive absenteeism problems," and that he had never been absent from work prior to the 2 days mentioned. On the other hand, Mitchell testified that Respondent's policy when employees are absent due to an illness is that: "At times we do require them to bring in a medical certificate from the doctor showing that they have seen the doctor for the time they were off work." Mitchell further testified that the decision as to whether or not to require a doctor's excuse is made by the supervisor and is based "on the length of time and the type of illness." Davis admitted participating in a picket line on or about Respondent's premises on May 17. His testimony that it was Respondent's policy not to request doctor's excuses of employees unless there was a history of excessive absentee- ism is not corroborated by any other evidence in the record. Rather, it appears that Respondent's policy with respect to the requirement of doctor's excuses is a flexible one based upon individual circumstances. I agree with Respondent that the appearance by an employee on the picket line at the time that he claims to be sick would "naturally and legitimately cause any supervisor to request proof of illness." 27 Moreover, I note that there is no evidence of any threat, discipline, or other retaliation against Davis as a result of this incident.2 s In view of all of the foregoing, it is my judgment that the conduct of Respondent's supervisors as to the facts regarding this allegation of the complaint do not constitute interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. I shall therefore recommend that the complaint, to this extent, be dismissed. Upon his return to work (from the strike) on May 19, Davis was given a "service check"2 9 by his supervisor, Jerry Narone. The complaint alleges that during the course of this check (which involved a ride to Dunkirk, New York, and return), Narone "unlawfully interrogated and threat- ened" Davis and "unlawfully and coercively recorded an unfavorable evaluation of his job performance" because of asked Davis if he brought the excuse back with him, to which Davis responded, "Yes, I have the excuse and I have it in my shirt pocket." Nothing else was said about it. 29 A service check involves a responsibility of a supervisor to ride with an employee from time to time and make notes as to the latter's proficiency as a truckdriver. Davis had had several of these during his employment with Respondent. 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis' activities on behalf of UP-Surge. I do not agree that substantial evidence on the record supports these allega- tions of the complaint. Davis testified that he (Davis) talked very little during the trip because his throat was still sore from the illness he had experienced several days before. However, he testified that Narone asked him questions about who wrote articles for UP-Surge, what Davis' duties were in UP-Surge, and why Davis was "so famous."3 0 No response was made to these questions according to Davis. On the other hand, Narone testified that the two men discussed many different subjects while on the trip including such matters as supervisors, other managers, the strike, and defensive driving. He denied discussing UP-Surge with Davis, stating that the only time that subject arose was when Davis stated, "you know, I belong to UP-Surge," to which Narone responded, "Oh, is that right?" Narone testified further that toward the end of the day Davis asked if Narone wanted to buy a copy of UP-Surge, to which Narone replied negatively. The record shows that although Davis refused to sign the service check on May 19, Narone characterized it as being a "fair service check" and that he would classify Davis as "an average driver." He further testified that as a result of the service check, Davis did not receive any kind of reprimand or warning, nor was there an unfavorable report placed in his personnel file, nor was any communication sent to the Union in connection with the service check. 31 Indeed, the record shows that Narone gave Davis another service check a few months later in Septem- ber, that Davis signed the service check following that trip, and that the check was quite satisfactory. Here, again, the credibility resolution has been a difficult one. Both men, through their testimony, appeared to desire to paint the best picture possible to support their respective positions, and as a result both stories seemed somewhat unbelievable. That is to say, Davis testified that he (Davis) "did not say anything concerning UP-Surge, but he [Narone] did." Davis, a man who participated in the strike and picket line activity, did not appear to me to be of so meek or timid a nature as to refrain from conversing with Narone concerning UP-Surge if, in fact, Narone raised the subject as Davis testified. On the other hand, Narone testified that during the course of the trip many subjects, including the strike, were discussed. It seems unlikely that there was no mention of UP-Surge until Davis raised it. In any event, I am of the view that even if Narone, in the course of conversations concerning the strike or other job- related subjects, questioned Davis concerning the latter's activities involving UP-Surge, such interrogations were not, in context, coercive and intimidating within the meaning of Section 8(a)(1) of the Act. Such interrogations took place not in the supervisor's office, but on the job in a communicative setting wherein other subjects relating to the employee's (and supervisor's) interests were concerned. Under the circumstances, and in the absence of any threatening or intimidatory language, I am of the view that the questions of Narone on this occasion did not interfere 30 This refers to a picture which was apparently taken on the picket line depicting Dav-is and others, which picture was, according to Davis' testimony, reproduced in an issue of UP-Surge. 3' Narone testified that the Union would be notified if the Company with, restrain, or coerce Davis in the exercise of his Section 7 rights, and were therefore not violative of Section 8(aXl) of the Act. I shall therefore recommend that the complaint, to this extent, be dismissed. In October, Davis had a conversation with Supervisor Narone in the Company's parking lot, in the presence of another supervisor, Parella. At the time, Davis had a duffle bag with him in which were folded several copies of the newspaper, UP-Surge. According to Davis' version of the incident, Narone instructed Davis not to have copies of the newspapers in his duffle bag in the Company's tractor because Davis was about to have a safety check at that time. Davis responded that he had every right to have the papers in his possession. Narone inquired if Davis intended to distribute them, to which Davis responded that he intended to distribute the papers on his lunch hour in the lunchroom at the Company's cafeteria. Narone then inquired whether he (Narone) could buy one from Davis, to which the latter responded that he could not sell Narone a newspaper at that time because it was on company time but that if he wished to purchase the paper he could do so in the cafeteria on Davis' lunch hour. Davis accused Narone of violating his rights and said that Narone had "better be careful of what he was saying because there was a witness present." At this time Parella turned his head and said, "I hear nothing." 32 As in previous instances involving these two men, Narone's version of the incident varies from Davis'. Narone testified that he noticed the copies of the newspa- per in Davis' duffle bag and said, "You are not gonna [sic] pass those out on the clock, are you Al?", to which Davis responded, "No, I am not allowed to." A few minutes later when Narone saw Davis boarding his tractor with the newspapers in his duffle bag, Narone said, "Al, are you taking those with you?" Davis responded, "Yes." Narone then suggested that Davis put them in his locker so that "it won't be exposed if another employee asked you for an UP-Surge and you are on the clock." Davis replied, "I would rather not. I am going to pass them out at lunch time." Davis then, noting the presence of another supervi- sor, said something to the effect that he could report Narone, apparently for making the statements attributed to him. Here, again, the credibility resolution has been a difficult one; however, after a consideration of all factors I credit Davis. In the first place, I doubt that Narone would be so concerned about Davis' welfare as to suggest that he put the UP-Surge papers in his locker so that he would not be tempted to violate a rule or law. Secondly, Narone confirmed some of Davis' testimony respecting Davis' threat to "report" Narone. Finally, I have considered Respondent's failure to produce Parella as a witness when it was not shown that he was unavailable. I find and conclude that Narone's directions to Davis not to have the UP-Surge newspapers in his duffle bag constituted interference, restraint, and coercion within the meaning of Section 8(aXI) of the Act. Certainly an intended to discipline a man for failing to follow instructions, or if he had a poor driving record. 32 Parella did not testify at the heanng. 232 UNITED PARCEL SERVICE employee had the right to the possession of such newspa- pers so long as: (1) they did not interfere with his work, and (2) he did not distribute them on company time or on company property in a work area in violation of a valid and nondiscriminatory company rule. Davis apparently felt well within his rights in this regard, and so warned Narone that the latter was infringing upon them. Respon- dent offered no evidence to the effect that having a duffle bag on a safety check was against the company rules. Its argument that Narone's statement was not coercive be- cause Davis "went ahead and put the papers in his dume bag anyhow" 33 does not comport with the test of violation of Section 8(aX ). American Freightways Co., Inc., 124 NLRB 146, 147 (1959). 6. The 15-minute rule Employee Anne Mackie testified that on several occa- sions since December 1, 1975, while distributing the newspaper, UP-Surge, in nonworking areas after work, she was ordered off the premises of Respondent by center manager, Gary Bowman, pursuant to an unwritten rule which required employees to leave the employer's premises 15 minutes after they had punched out. Mackie further testified that this rule was only enforced against employees involved in distributing or "looking at" UP-Surge, and that she had observed other employees sitting in supervisors' offices for 30 to 45 minutes after they had punched out. Celia Petty testified that on one day in April, after she had punched out and was waiting in the cafeteria for her ride, Supervisor Ed Manasian came up to her, called her away from the other persons with whom she was sitting, and said, "Celia, I don't know what this is all about, but I have to ask you to leave." When Petty asked him the reason, he responded, "Well, I never heard of this before, but Ed Meyer just came up to me and told me that you have to leave 15 minutes after you punch out, so you are just going to have to go." Petty left.3 4 Center manager Gary Bowman testified that Respondent had instituted the 15-minute rule approximately 2 years previously because of a problem of available parking spaces, i.e., that Respondent wanted the employees to leave so that the oncoming employees could find available parking space. There is no substantial evidence that the existence of the rule was clearly disseminated to all employees, and the credited testimony indicates that it was applied discriminatorily-that is, to employees who were known to be involved in the organization, UP-Surge. Accordingly, I conclude and find that the rule, as imple- mented by Respondent, interfered with, restrained, and coerced employees in violation of Section 8(aXI) of the Act. 35 33 Respondent's bnef. 34 Uncontradicted and credited testimony of Petty. Neither Manasian nor Meyer were called as witnesses at the hearing. 35 See Tri-County Medical Center, Inc., 222 NLRB 1089 (1976). 36 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, II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices engaged in by Respondent, occurring in connection with its interstate operations, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. 1il. THE REMEDY Having found that Respondent violated Section 8(aXl) of the Act, it will be recommended that Respondent be required to cease and desist from such conduct and to take certain affirmative actions as will effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, in the manner described above, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(aX 1) of the Act. 3. The unfair labor practices engaged in by Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. 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: ORDER36 The Respondent, United Parcel Services, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their activities on behalf of UP-Surge. (b) Threatening employees with reprisals should they engage in, or continue to engage in, activities on behalf of UP-Surge. (c) Creating the impression among employees that their activities on behalf of UP-Surge are under surveillance by agents of the Respondent. (d) Informing or directing employees that they were not allowed to possess the newspaper, UP-Surge, on their person during working hours. (e) Promulgating or implementing an unlawful no-access rule concerning off-duty employees.3 7 conclusions, and recommended Order herein shall, as provided in Sec. 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. 3a In Tri-County Medical Center, Inc.. supra, the Board concluded that, in order to effectuate the policies of the Act, a "no-access" rule would be valid (Continued) 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Rescind the "no-access" rule concerning off-duty employees found to have been discriminatorily enforced. (b) Post at its Cleveland, Ohio, facility, copies of the attached notice marked "Appendix." 38 Copies of the notice, on forms provided by the Regional Director for Region 8, after being duly signed by an authorized only if it: "(I) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union [concerted] activity." 3s In the event that this Order is enforced by a Judgment of the United representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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." 234