Contra Costa Times

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 ofbusiness 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