Cox Enterprises, Inc., d/b/a Atlanta Newspapers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cox Enterprises, Inc., d/b/a Atlanta Newspapers and Mary E. Cody. Case 10-CA-17277 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND HUNTER On March 9, 1982, Administrative Law Judge Leonard N. Cohen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed cross-exceptions with a brief in sup- port thereof and in opposition to the General Counsel's exceptions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We adopt the Administrative Law Judge's find- ing that Respondent violated Section 8(a)(1) of the Act by coercively interrogating employee Mary Cody concerning the union activities of other em- ployees. The Administrative Law Judge further concluded that Respondent had not, as alleged, violated Section 8(a)(1) and (3) of the Act by its subsequent termination of Cody. For the reasons set forth below, we find merit in the General Counsel's exceptions to this last finding of the Ad- ministrative Law Judge. On May 18, 1981,2 the Union filed a petition seeking to represent approximately 250 employees in the single-copy division of Respondent's circula- tion department.3 Thereafter, a representation hear- ing was scheduled for June 5. Concurrent with the Union's organizing campaign, Respondent was en- gaged in negotiating successor agreements in three other bargaining units. In its brief, Respondent contends that the General Counsel's excep- tions fail to identify specifically those findings of the Administrative Law Judge which the General Counsel disputes in his supporting brief. Re- spondent urges that the Board strike the General Counsel's brief as not having been filed in accordance with Sec. 102.46(c) of the Board's Rules and Regulations, Series 8, as amended, which provides that "[a]ny brief in support of exceptions shall contain no matter not included within the scope of the exceptions .... " We find no merit in this contention. While the General Counsel did not contest the credibility resolutions made in this case, his exceptions specify the Administrative Law Judge's conclusions of law covering the discharge of employee Mary Cody. Ac- cordingly, we conclude that the General Counsel's exceptions and brief fully comply with our procedural requirements. ' All dates are in 1981 unless otherwise indicated. s The Union involved herein is Printing and Graphic Communications Union, Local No. 10. 264 NLRB No. 120 Respondent had employed Cody as a radio dis- patcher for approximately 10 years. Cody was not represented by any labor organization nor was she involved in the Union's organizing campaign. Pur- suant to her job duties, Cody made a phone call to Richard Austell, Respondent's loading dock super- visor, about noon on June 4. Cody asked Austell if he had heard that the street sales employees (single-copy division employees) were going out on strike. Austell replied that he had not and twice asked Cody how she knew. Cody refused to di- vulge her source. The substance of this conversation quickly was conveyed to Respondent's sales and marketing di- rector, John Schuler, a general supervisor of both the street sales employees and the radio dispatch- ers. Schuler immediately went to the radio room where Cody was seated at her assigned position. When Schuler asked about her conversation with Austell, Cody initially denied that she had been on the phone with anyone, but finally admitted having talked to Austell. Schuler then asked Cody where she had heard the strike rumor involving street sales employees. Cody answered that she did not know and that the matter was "no big deal, every- body knows about it." After Schuler again inquired as to the source of her information, Cody explained that earlier in the day she had spoken to the driver of a white van while stopped at a traffic light. The driver asked her if she worked at the newspaper, and then stated that the street sales employees were going out on strike. When Schuler angrily demand- ed that she tell him the name of the person who drove the van, Cody said that she did not know. Schuler replied that he was certain he could find out. Schuler then advised Cody that her conduct was inappropriate and that some action would be taken against her. Thereafter, Schuler informed two other supervi- sors of the incident involving Cody. After consult- ing with Respondent's labor relations manager, they decided to discharge Cody that afternoon for spreading a strike rumor and for lying about what she had done. Cody was advised of the decision by her immediate supervisor, Kay Reese. Although he characterized Respondent's action in summarily discharging an employee with 10 years' tenure as a "harsh over-reaction," the Ad- ministrative Law Judge concluded that Cody's dis- charge was lawful since she had not engaged in concerted activity. He relied on the absence of evi- dence that Cody supported the rumored strike or that Respondent perceived her as advocating such action. The Administrative Law Judge also found that the General Counsel had failed to establish that Respondent possessed union animus. 878 ATLANTA NEWSPAPERS Contrary to the Administrative Law Judge, we find that Cody was discharged for her involvement in concerted activity protected by the Act. The Board has held that a conversation may constitute concerted activity although it involves only a speaker and a listener.4 In Signal Oil and Gas Com- pany v. N.LR.B., 390 F.2d 338 (9th Cir. 1968), enfg. 160 NLRB 644 (1966), concerted activity was found where one nonunit employee, speaking to another nonunit employee, voiced approval of the possibility of a strike in the bargaining unit. It was sufficient, the court said, to show that the remark "had some relation to group action in the interest of the employees."5 Here, there can be little doubt that the subject of Cody's remark related to protected activity which had engendered concern among her fellow workers. We disagree with the Administra- tive Law Judge's finding that Cody's failure to state explicitly or to demonstrate otherwise that she supported the rumored strike was sufficient to disqualify her conversation as protected activity. Employee speech, regardless of whether the listen- er is a supervisor or another employee, is often an essential means of achieving group goals and to deny protection to this type of activity would nulli- fy the rights guaranteed by Section 7 of the Act. Employing the test set forth in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), we conclude that the General Counsel has made a prima facie showing that Cody's participa- tion in concerted activities protected under Section 7 of the Act was the motivating factor in Respond- ent's decision to discharge here. Under Wright Line, supra, this evidence of Cody's protected con- certed activities and Respondent's reliance on that conduct as a ground for its action effectively shift- ed the burden to Respondent to show that the dis- charge would have occurred even in the absence of her protected activities. Here, Respondent contends that it discharged Cody because she lied to Schuler about her conversation with Austell. Just prior to this incident of alleged insubordination, however, Supervisor Austell twice had questioned Cody as to the source of the strike rumor. When Schuler, a top management official, quickiy moved to resume Respondent's inquiry into this matter, he angrily questioned Cody concerning the union activities of her fellow employees. We have found that Re- spondent violated Section 8(a)(1) of the Act by en- gaging in such conduct. Further, Cody's discharge swiftly followed her remark about the rumored strike and Schuler's unlawful interrogation of Cody as to her source for the strike rumor. Accordingly, 4 Datapoint Corporation, 246 NLRB 234, 235 (1979). s 390 F.2d at 342-343, quoting from Mushroom Transportation Compa- ny. Inc. v. N.LR.B., 330 F.2d 683, 685 (3d Clr. 1964). we find that, but for Cody's remark to Austell about the possibility of a strike, Respondent would not have discharged her. Respondent thus has failed to rebut the General Counsel's prima facie showing that Cody was terminated for her involve- ment in protected concerted activities. According- ly, we find that Respondent further violated Sec- tion 8(a)(1) of the Act by discharging Cody.6 Finally, we find no merit in Respondent's argu- ment that the Board is precluded from making the above findings because the complaint fails to allege that Cody's discharge violated Section 8(a)(l), as well as 8(a)(3), of the Act. Although the complaint alleges that Respondent violated Section 8(a)(3) be- cause it discharged Cody for engaging in union ac- tivities, we are not precluded from finding that the conduct alleged as unlawful violates the Act in a different respect. As we stated in C & E Stores, Inc., C & E Supervalue Division, 221 NLRB 1321, fn. 3 (1976): It is well established that where, as here, the facts underlying the violation are fully devel- oped at the hearing, an unfair labor practice finding can be based on the issues litigated as well as those specifically alleged in the com- plaint. 7 Here, all the circumstances surrounding Cody's dis- charge, including the facts relating to her protected concerted activities, were fully litigated at the hearing. We also note that the General Counsel amended the complaint at the close of hearing to allege an 8(a)(l) violation in Cody's discharge and that Respondent thereafter was afforded the oppor- tunity to present additional evidence pertaining to this allegation. Accordingly, we conclude that Re- spondent cannot claim prejudice by our finding that Cody's discharge violated Section 8(a)(l) of the Act. 6 Respondent claims that it discharged Cody because of its legitimate concern that her action would cause a tense situation lo develop into an actual work stoppage. It may well be that in certain limited circum- stances, such as where an employee circulates rumors of a strike for no other reason than to disrupt an employer's business operations, such re- marks might not be protected by the Act. iHoAe'er, there is nothing to indicate that such circumstances are present in the instant case Member Jenkins would not rely on Wright Line, since it is plain that the decision here finds Respondent's asserted reason for the discharge to be a pretext; thus there is only one genuine. and unlawful, reason for the discharge, and the Wright Line analysis for separating causality where there is also a lawful real reason is inapplicable and misleading--as the reasoning of the decision here makes abundanllly clear on its face. I See also for this result Joint Industry Board of the Elecrrical Industry and Pension Committee, Joint Industry Board of the Electrical Industry, and Trustees of the Pension Hospitalization and Benefit Plan of the Electrical In- dustry. as naned in Appendi .4 [of the Complaint]. 238 NLRB 1398, fn. 8 (1978). 879 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices within the meaning of the Act, we shall order that it cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act. As we have found that Respondent unlawfully discharged Mary E. Cody, we shall order that it offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges previ- ously enjoyed. We shall also order that Respondent make Cody whole for any loss of earnings she may have suffered by reason of Respondent's discrimi- nation against her in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), to- gether with interest as provided in Florida Steel Corporation, 231 NLRB 651 (1977). 8 Respondent also shall be ordered to expunge from its records any reference to Cody's unlawful discharge, and to notify Cody in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for further personnel actions against her. See Sterling Sugars, Inc., 261 NLRB 472(1982). AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4: "4. By discharging Mary E. Cody for engaging in protected concerted activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Cox Enterprises, Inc., d/b/a Atlanta Newspapers, Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about the union sympathies, activities, and desires of other employ- ees. (b) Discharging employees for engaging in con- certed activities protected by Section 7 of the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: 8 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (a) Offer Mary E. Cody immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or any other rights and privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered by reason of the discrimination practiced against her in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Expunge from its files any reference to Mary E. Cody's unlawful discharge, and notify Cody in writing that this has been done and that evidence of her unlawful discharge will not be used as a basis for future personnel actions against her. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, 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. (d) Post at its place of business in Atlanta, Geor- gia, copies of the attached notice marked "Appen- dix." 9 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by 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 Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. * In the event that this 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 Pursu- ant 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 After a hearing at which all sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the Na- 880 ATLANTA NEWSPAPERS tional Labor Relations Act, as amended, and has ordered us to post this notice and to comply with its provisions. WE WILL NOT interrogate our employees about the union activities, sympathies, and de- sires of other employees. WE WILL NOT discharge employees for en- gaging in concerted activities protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Mary E. Cody immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her se- niority or any other rights and privileges pre- viously enjoyed, and WE WILL make her whole for any loss of earnings she may have suffered by reason of the discrimination prac- ticed against her, plus interest. WE WILL expunge from our files any refer- ences to Mary E. Cody's unlawful discharge, and WE WILL notify Cody in writing that this has been done and that evidence of this unlaw- ful discharge will not be used as a basis for future personnel actions against her. Cox ENTERPRISES, INC., D/B/A ATLANTA NEWSPAPERS DECISION STATEMENT OF THE CASE LEONARD N. COHEN : This matter was heard before me in Atlanta, Georgia, on January 21, 1982. On Septem- ber 24, 1981,1 the Acting Regional Director for Region 10 of the National Labor Relations Board issued a com- plaint and notice of hearing based upon unfair labor practice charges filed on August 6. The complaint, as amended at the hearing, alleges that Cox Enterprises, Inc., d/b/a/ Atlanta Newspapers, herein called Respond- ent, violated Section 8(a)(1) and (3) of the Act when it discharged Mary E. Cody, the alleged discriminatee, on or about June 4. The complaint further alleges that Re- spondent, through its supervisor and agent, John Schuler, in violation of Section 8(aX1), interrogated Cody, solicited Cody to report to her supervisor the union activities of others, and created the impression of surveillance of its employees' union activities. Respond- ent filed a timely answer which denies the commission of any unfair labor practices. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. ' Unless otherwise indicated. all dates hereinafter are 1981. Upon the entire record and from my observation of witnesses and after due consideration of the briefs filed by the General Counsel and Respondent, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Delaware corporation with an office and place of business in Atlanta, Georgia, where it is en- gaged in the printing and publishing of daily and Sunday newspapers. During the past calendar year, Respondent had a gross volume of business in excess of $200,000. Ad- ditionally, Respondent subscribes to national wire serv- ices, publishes nationally syndicated features, and adver- tises national brand products. Accordingly, Respondent admits, and I find and conclude, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent admits and I find and conclude that at all times material herein Printing and Graphic Communica- tions Union Local No. 10, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts2 1. Setting On May 18 the Union filed a petition in Case 10-RC- 12417 seeking to represent the approximately 250 indi- viduals employed in the single-copy divisions of the cir- culation department in the classifications of route manag- ers and their helpers. 4 Shortly thereafter, Respondent filed a request for a collateral investigation into the Union's showing of interest on the grounds that route managers, who it contended were supervisors, had solic- ited their subordinates into signing authorization cards. 5 A hearing in the R case was scheduled to begin on June 5, the day following Cody's discharge.6 Concurrent with the matters relating to the petition, Respondent was engaged in collective bargaining for contract renewals in three other bargaining units. The Union has for some years represented a craft unit and 2 Unless otherwise noted the material facts are not in dispute. n Also known as the street sales. 4The organizational campaign was at all times limited to those individ- uals employed in the single-copy division. ' While the record is silent, it would appear that the Employer's posi- tion was dissimilated among its various employees. ' At this hearing Respondent also attempted to expand the proposed bargaining unit to include other employees in the circulation department. On July 15 the Regional Director issued his Decision and Direction of Election in which he found that the single-copy division employees con- stituted an appropriate unit and that route managers were not supervisors in that they lacked sufficient discretion to make meaningful supervisory decisions. Thereafter, Respondent filed a timely request for review and on August I I the Board granted review and postponed indefinitely the election. As of the instant hearing the Board has not issued its decision in this matter. 881 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was one of the three unions then engaged in collective bargaining with Respondent. 2. Events of June 4 It is undisputed that a telephone conversation on June 4 between Mary Cody, a radio dispatcher, and Richard Austell, a loading dock supervisor in the transportation department,7 set in motion a chain of events which ulti- mately led to Cody's alleged unlawful discharge. What is in dispute is exactly what was said during this and a sub- sequent conversation involving Cody, as well as the legal effect of Respondent's conduct in summarily discharging Cody, at least in part, for certain remarks she made re- garding a possible strike. At the time of her discharge, Mary Cody had been employed for approximately 10 years as a radio dispatch- er. In this capacity Cody communicated both by phone and radio with individuals concerning delivery and dis- tribution of papers. Virtually all such contacts were with management personnel, and it does not appear that she would have any significant degree of contact, either in person or by telephone or radio, with any single-copy employee. As was her custom, Cody, shortly after noon on June 4, called the loading dock to find out from Austell what times the trucks had left the docks on their way to each branch office. At some point during the brief conversa- tion, Cody asked Austell if he had heard that the street sales people were going out on strike. Austell answered that he had not and asked her how she knew. Cody re- fused to tell him. Austell then asked her a second time how she knew there would be a strike and again she re- fused to divulge her source.8 Immediately upon finishing his conversation with Cody, Austell telephoned his im- mediate supervisor, Richard Mayfield, fleet operations manager, and informed him what Cody had said regard- ing a strike. Mayfield answered that the Union was in ne- gotiations with Respondent and he did not believe they could strike at that time. Mayfield, in turn, called John Schuler who, as sales and marketing director, had authority over both the street sales employees and radio dispatchers. Mayfield first relayed what he had been told by Austell and then added that he was concerned that his employees would be afraid to come to work if they knew that the rumor about a strike was going around. After speaking with Mayfield, Schuler went to the radio room where Cody was seated at her assigned posi- tion. Schuler asked Cody if she had just gotten off the ' The parties stipulated that Austell was a statutory supervisor within the meaning of Sec. 2(11) of the Act. 8 Cody's version differs in that she allegedly merely asked him if the street people were not supposed to go on strike and that Austell an- swered he was not sure, but that he had heard that they were. Later ill the same conversation, Cody testified that Austell made a joking remark that the two of them would have to perform the street sales work the following day. Cody also testified that John Schuler, sales and marketing director, walked into the radio room while she was still on the phone talking to Austell. In resolving this, as well as other factual disputes against Cody, I rely not only on demeanor considerations but also on the relative inherent probabilities in her testimony as contrasted with the testimony of various witnesses offered for Respondent. phone with someone in transportation. Cody denied that she had been on the phone with anyone. Schuler then asked her if she had repeated some kind of rumor to the transportation department. Again Cody denied that she had. Schuler then asked Cody if she would like him to bring Richard Austell over and find out what really hap- pened. Cody answered no and then admitted having talked to Austell. At this point, Schuler asked her where she had heard the rumor about the single-copy strike. Cody answered that she did not know and then com- mented that the matter was "no big deal, everyone knows about it." Schuler then asked if she knew how se- rious a matter it was. Again Cody responded that she did not think it was any big deal. When Schuler pressed her further about where she heard the rumor Cody explained that while she was stopped, early in the morning, at a traffic light at a certain location a white van pulled up alongside her and the driver, apparently a single-copy employee, leaned out and asked her if she worked at the newspaper. When she replied that she did the driver asked her if she knew that the single-copy department was going out on strike. Schuler asked Cody if she really expected him to believe her story. Cody answered that she did. When Schuler then asked the name of the person who drove this white van, Cody answered that she did not know. Schuler then stated that he was sure he could find out.9 Schuler then told Cody that he did not think that what she did was appropriate and he in- structed her to stay where she was because some action would be taken against her. l ° Following his conversation with Cody, Schuler went to Kay Reese, Cody's immediate supervisor, and in- formed her what had transpired. Schuler told Reese that some action would have to be taken against Cody, but that first he wanted to consult with Ellen Gilbert, who was in charge of Respondent's labor relations. Schuler suggested that Reese consult with her immediate supervi- sor, Pat Bellatoni. After informing Bellatoni of the incident, Reese then approached Cody and asked her why she had spread the rumor about a strike. Cody answered that she was just making conversation. At the same time that Reese was having these conversations, Schuler was having his own conversation with Gilbert. Schuler indicated that he felt that Cody's making irresponsible statements and then lying to him by denying it warranted discharging her. Gilbert agreed but suggested that Schuler investigate the matter to determine who else, if anyone, heard what Cody had told to Austell. Schuler and Reese then met back with Bellatoni and the three decided that they had no alternative but to dis- charge Cody. Shortly thereafter, Reese informed Cody that she was being terminated for unsatisfactory perform- ance. 9 Schuler explained that ioute managers nol-mally drove vans in con- nection with their deliveries and that he felt confident that he would be able to identify the driver of the van by the time and location of the con- cersation. 'I In Cody's version, which I do not credit, she readily admitted tell- ing Schuler that she had spoken to Austell about the strike rumor Addi- tionally, Cody testified that Schuler also told her that if she heard any- thing of this nature she was to report it directly to her manager 882 ATLANTA NEWSPAPERS Both Reese and Schuler testified that they were con- cerned with the possibility that Cody may have told others, either by phone or radio transmission, of the ru- mored strike. " Inexplicably, neither bothered to ask Cody whether she mentioned the rumored strike to anyone other than Austell. Schuler testified that despite Cody's 10 years' experience, he considered her conduct, in first spreading a rumor to a supervisor about a strike and then in lying to him by initially denying what she had done, so serious and irresponsible as to virutally re- quire the severe and summary action taken. In attempting to place the matter in the proper per- spective, Schuler testified that he suspected a member of management as the source of Cody's information and that he feared that, unless action was taken, the rumor might become a "self-fulfilling prophecy." Schuler apparently based his suspicions regarding the source of Cody's information on Cody's lack of contact as radio dispatcher with any single-copy employee, the improbable, if not incredible, story she offered regarding "the man in the white van" and Respondent's then on- going confidential strike preparations involving the single-copy supervisors, individuals with whom Cody did have regular contact.12 While Schuler's suspicions may not have been unreasonable, his fears that Cody's conduct in telling Austell the rumor could somehow cause the situation to develop into an actual strike ap- pears to be an overreaction on his part. Moreover, even if Schuler's fears were real, no showing has been made that Cody's immediate discharge would in any way alter the overall picture. First, Schuler testified that since virtually all Cody's communications as radio dispatcher were with manage- ment personnel, anyone hearing the rumor of a strike from her could be somehow mislead into believing that the information came from a reliable source in the circu- lation department itself. I find this speculation as highly questionable. Next, Schuler testified that he feared that if the word got out that Respondent was preparing itself to deal with a work stoppage, it might somehow be regarded by the Union or the Board as an unlawful show of strength, in- timidation, or surveillance. Additionally, Schuler stated if the rumor of the strike became known to the part-time employees in the transportation department, they might not show up for work in the morning to make their de- liveries. While widespread dissemination of the strike rumor may have been a legitimate concern, there is no evidence that Cody's conduct in passing along the rumor to one supervisor on the telephone could have had the dis- astrous effects Respondent feared. Additionally, Re- spondent could have assured itself that there would be no further dissemination of the rumor by Cody if it had I' When Cody communicated with a particular supervisor by radio, the transmission could be heard by 40 to 50 other supervisors. 1z Schuler alluded to discussions he had been having with single-copy supervisors regarding how Respondent would function if the single-copy employees struck or if the Union subpoenaed so many route managers for the Board hearing that the distribution of the morning newspaper was jeopardized. merely taken the simple step to warn her not to repeat it further. Cody did not engage in any activity on behalf of the Union. She did not sign an authorization card, attend any meetings, or seek membership therein. Additionally, no organization campaign existed among the employees in her department. Moreover, no evidence was offered that Respondent 1 was opposed to the organization of its em- ployees. B. Analysis The Discharge The General Counsel contends that Cody's refusal to reveal to Schuler the identity of her source caused Re- spondent to form the mistaken belief that Cody was sup- portive of the Union's organizational effort and that even in the absence of evidence of union animus Respondent's abrupt termination of Cody was "inherently destructive of her Section 7 rights." In support of the allegation that the discharge was violative of both Section 8(a)(3) and Section 8(a)(1), the General Counsel relies heavily on the Board's holding in Signal Oil and Gas Company, 160 NLRB 644, 648-649 (1966), enfd. 390 F.2d 338 (9th Cir. 1968). There, a nonunit employee (Evans), while en- gaged in a conversation with another nonunit employee and in the presence of a supervisor, voiced approval of the possibility of a strike in the bargaining unit. When Evans' remark was reported to higher management, it brought about an immediate review of his personnel file. His file contained material which reflected adversely on Evans' general attitude and past performance and he was subsequently discharged. In finding the discharge unlaw- ful because it was precipitated by a remark which falls within the area of protected employee rights, the Trial Examiner, with the approval of the Board and the court, concluded: Although the remark on its face is somewhat mild in nature, I can only regard it as an expression of sympathy and support by Evans for a group of his fellow employees who had announced that they might undertake collective action in support of de- mands they were making against their employer. In effect, Evans expressed common cause with the re- finery employees in furtherance of their strike, even though he was not a part of the refinery group, and even though the strike would have the undoubted effect of putting him out of work. In one sense, the remark may not be a call to a concerted action, but it does express support by Evans of such action by his fellow employees in another unit. Striking em- ployees seek all the support they can get. When fellow employees not directly involved in the strike, but affected by it, express support they often do so in the hope of reciprocal support at a later time. a3 In 1976. in an earlier representation case involving a different union, the Regional Director found the route managers to be supervisors as de- fined in the Act. In view of this earlier proceeding, Respondent's position with regard to the petition does not amount to evidence of opposition to its employees' rights to exercise their Sec. 7 rights. 883 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, Evans' remark may be regarded as an expres- sion of support for the proposed union activity of his fellow employees, made in anticipation that he or his group might receive similar support should the occasion arise. I find this to be a form of protec- tive activity for his own aid and protection, as well as an expression of support for a labor organization of his fellow employees. Discharge for such expres- sion would clearly interfere with the rights protect- ed by the statute and would tend to discourage membership in a labor organization. Cody's conduct here is not equatable to Evans' con- duct in Signal Oil. Unlike Evans, Cody was not speaking to another nonunit employee, but was instead speaking to a statutory supervisor. Moreover, unlike Evans, Cody was not expressing support for the rumored union activi- ties of her fellow employees but was instead merely asking a supervisor if he had heard the same rumor that she had heard. While it is true that Schuler did not believe Cody's story that she was told of the rumor by an unidentified route manager, there is no evidence from which it could be inferred that he took her answers or comments as in any way supportive of the Union's organizing efforts. In fact, the credible evidence establishes that Schuler not unreasonably believed that Cody had obtained the infor- mation regarding the possibility of a strike, not from a member of the bargaining unit but from a member of management. Moreover, no evidence was presented that Respondent possessed an antiunion attitude or committed any other violation of the Act apart from this incident. In amending the complaint at hearing to specifically allege that Cody was also discharged for having engaged in protected concerted activity in violation of Section 8(a)(1), the General Counsel, in direct response to a question posed by the Administrative Law Judge, indi- cated that the only protected concerted activity engaged in by Cody was her statement to Austell regarding the strike. This theory apparently underwent a change, for in his post-hearing brief the General Counsel now argues that the protected concerted activity engaged in by Cody was her "perceived" support of the Union as mani- fested by her unwillingness to divulge to Schuler where she obtained her knowledge of the plossible strike. What- ever theory on which the General Counsel travels, the record evidence makes it abundantly clear that Cody was discharged for certain remarks she made to Austell and Schuler on June 4 and during these conversations, Cody was not engaged in concerted activity. This, of course, is not to say that Respondent's action in summarily discharging an employee with 10 years' ex- perience was not precipitous and a harsh overreaction to the situation. This is especially so in view of both the rather mild nature of her remarks, as well as Respond- ent's failure to even inquire as to whether Cody made similar remarks to others. However, as the Board has fre- quently pointed out, an employer may discharge an em- ployee for a good reason, a bad reason, or no reason at all so long as the employer was not motivated by an un- lawful reason. Here, I am compelled to conclude that the General Counsel has not met its burden of establishing that Respondent was motivated by unlawful reasons. Ac- cordingly, I recommend that the allegations regarding Cody's discharge be dismissed in their entirety. IV. THE ALLEGED 8(A)(I) VIOLATION A. The Alleged Interrogation While Respondent may have had a legitimate purpose in attempting to determine if a member of management was revealing to employees its confidential defensive strategies regarding a potential problem, Schuler did not share this purpose with Cody. Instead, Schuler merely asked her from whom she had heard the rumor that the street people were going to strike. When Cody answered that she heard it from a route manager driving a van, Schuler persisted in his questions, seeking both the iden- tity of her source, as well as the substance of the conver- sation. At no time did Schuler assure Cody that her re- sponses would not lead to reprisals, N.L.R.B. v. Super Toys, Inc.,, 458 F.2d 180, 183 (9th Cir 1972), and there is no basis for inferring that Cody could have perceived a legitimate basis for the questions. San Lorenzo Lumber Company, 238 NLRB 1421 (1978). Angrily questioning an employee about the union activities of other employ- ees has the natural tendency to restrict that employee's exercise of his or her Section 7 rights. Clearly Schuler's questions were perceived by Cody as fraught with a danger of coercion. Accordingly, I find that Respond- ent's interrogation of Cody by Schuler was an unfair labor practice in violation of Section 8(a)(l) of the Act. B. The Alleged Impression of Surveillance The General Counsel contends that Schuler's state- ment to Cody that he was sure he would be able to find out the identity of the man in the white van unlawfully created the impression of surveillance. In South Shore Hospital, 229 NLRB 363 (1977), the Board held: In determining whether a respondent created the impression of surveillance, the test applied by the Board is whether employees would reasonably assume from the statement in question that their union activities had been placed under surveillance. Schrementi Bros., Inc., 179 NLRB 853 (1969). Here, Cody could not reasonably assume from Schuler's remark that the union activities of any of Respondent's employees either had been or would be placed under sur- veillance. Accordingly, I recommend that this allegation be dismissed. 14 Upon the foregoing findings of fact and upon the entire record, I make the following: " The complaint further alleges that Respondent violated Section 8(aXI) by soliciting its employees to report to their supervisors the union activities of others. This allegation is based on testimony of Cody that Schuler told her that anytime she heard anything concerning a strike or any other activity of that nature, she was to report such to her supervi- sor. As found above, I did not credit this portion of Cody's testimony. Accordingly, I recommend that this allegation be dismissed. 884 ATLANTA NEWSPAPERS CONCLUSIONS OF LAW I. Respondent, Cox Enterprises, Inc., d/b/a Atlanta Newspapers, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Printing and Graphic Communications Union, Local No. 10, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their union activities, sympathies, and/or desires, Respondent violated Section 8(a)(1) of the Act. 4. Respondent did not violate the Act by discharging Mary E. Cody on June 4, 1981. 5. Respondent did not violate the Act in any other manner. 6. The unfair labor practices have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I will recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes and policies of the Act. [Recommended Order omitted from publication.] 885