The Tribune Co.

TRIBUNE CO. 977 The Tribune Company and International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC and Local 721. Cases 8-CA-14861, 8-CA-15181, 8-CA-15337, 8-CA-15337-2, 8- CA-15337-4, and 8-RC-12406 19 May 1986 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION conclusions2 and to adopt the recommended Order. 3 CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for International Union of Electrical Radio and Machine Workers, AFL-CIO and its Local 721 and that it is not the exclusive representative of these bargaining unit employees. BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 30 December 1983 Administrative Law Judge James J. O'Meara Jr. issued the attached de- cision. The Union and the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief. The Union and the General Counsel excepted to, among other things, the judge's failure to address allegations of the complaint and related objections which were fully litigated at the hearing. On 30 August 1984 the Board, without passing on all the exceptions, issued an unpublished Order remanding the proceedings to the judge for further findings and conclusions regarding these allega- tions. On 16 October 1984 the judge issued the at- tached supplemental decision regarding these alle- gations. No exceptions to the supplemental decision were filed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and i The General Counsel has excepted to some of the judge's credibility findings The Board's established policy as not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951 ) We have carefully examined the record and find no basis for re- versing the findings 2 In affirming the judge's finding that the interrogations of employees did not violate the Act or constitute objectionable conduct , we rely on our decision in Rossmore House, 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985) Each of these employees, except Laura Lemmon, publicly supported the Union In Laura Lemmon's case Supervisor Harry Newman's query regarding how her name came to appear on union liter- ature was prompted by Lemmon's having told Newman earlier that she did not support the Union Newman testified he was concerned her name was being used without her knowledge Therefore, a legitimate basis ex- isted for Newman's inquiry In none of these instances is there objective evidence in view of all the circumstances that the interrogations would tend to have a coercive effect We disavow any statements of the judge that appear to rely on the subjective effect of the interrogations In the absence of exceptions to the judge's supplemental decision, we adopt the judge's conclusion regarding the allegations discussed in that decision In the absence of any exceptions to either the judge's original decision or his supplemental decision , the Board adopts the judge's find- ings that the Respondent did not unlawfully institute new work rules for delivery personnel, threaten to eliminate part-time advertising supplement "stuffing" work, threaten employees with harsher conditions, discharge, loss of mileage payments or pension coverage , state that bargaining would be futile; create the impression of or engage in surveillance of em- ployees' union activities, restrict or prohibit the distribution of union lit- erature, deny drivers mileage payments or the renewal of delivery con- tracts with raises; deprive union adherent of normal contact with other employees or exclude them from training sessions; increase wages and benefits, solicit grievances; or single out union adherents by refusing to give them green carnations for St. Patrick's Day. 3 In view of our adoption of the judge's recommendation that the elec- tion objections be overruled, we shall issue a certification of results of election Charles Z Adamson, Esq., for the General Counsel. Joseph A. Rotolo, Esq., for the Respondent. Richard Rice, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE JAMES J. O'MEARA JR., Administrative Law Judge. The original complaint in this case was issued on July 30, 1981 ,1 as Case 8-CA-14861 and was based on a charge filed on May 19 by International Union of Elec- trical, Radio and Machine Workers, AFL-CIO-CLC and its Local 721 (the Union). From time to time, and up to and including the hearing on these matters, the com- plaint was amended by consolidating it with Cases 8- CA-15181, 8-CA-15337, 8-CA-15337-2, and 8-CA- 15337-4, each of which complaints were based on charges subsequently filed by the Union. An additional amendment comprising the withdrawal of paragraph 20 of the consolidated complaint was requested by the Gen- eral Counsel and allowed. The answer of the Respondent to the amended com- plaint comprises a specific denial of each allegation of unlawful conduct contained in the consolidated amended complaint. On February 10 the Union filed a petition for certifica- tion by the Board as the exclusive representative of the employees in a specified bargaining unit for the purposes of collective bargaining . As of February 7 the Union had received authorization cards from 113 of the 224 employ- ees of the Respondent comprising the bargaining unit. Due to terminations and new hirings the number of em- ployees on the date of the election was 235. An election to resolve the Union's petition was held on April 6, at which 228 of 235 eligible employee voters cast ballots. Of the 228 ballots so cast, 97 were for the Union and 119 were against the Union. Twelve ballots were challenged. I All dates hereinafter stated are in 1981 unless otherwise indicated 279 NLRB No. 138 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The challenged ballots comprise an insufficient number to effect the results of the election. On April 13 the Petitioner filed objections to the con- duct of the Employer allegedly affecting the results of the election. The Regional Director, in considering the Union's objections to the election, consideration of pend- ing unfair labor practice charges against the Employer, and observing that evidence to support the allegations of the unfair labor practice were coextensive with evidence to be offered in support of the Union's objections, or- dered that the matter of the objections be consolidated with the unfair labor practice case and heard simulta- neously. The case was heard in the city of Warren, Ohio, on May 3-7, 12, and 13, 1982. The hearing was reopened subsequent thereto and further evidence was heard on November 22, 1982. At the sessions comprising this hear- ing the parties were given an opportunity to present evi- dence in the form of witnesses and documents and to argue their respective positions. At the close of the hear- ing, the parties waived oral argument and summation and filed briefs which have been received and considered. FINDINGS OF FACT I. JURISDICTION The Respondent is now, and has been at all times ma- terial, a corporation duly organized under and existing by virtue of the laws of the State of Ohio with its princi- pal office and place of business located in Warren, Ohio, where it is engaged in the publication of the Warren Tribune-Chronicle, a daily newspaper of general circula- tion which holds membership in, and subscribes to, inter- state news service and advertises nationally sold prod- ucts, and whose gross volume of business exceeds $200,000 per annum. I find that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR UNION International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 721, are now, and have been at all times material herein, labor organi- zations within the meaning of Section 2(5) of the Act. III. STATEMENT OF FACTS A. Background The Tribune Company (the Respondent) is engaged in the publication of the Warren Tribune-Chronicle, a daily newspaper of general circulation, in the city of Warren, Ohio, and its surrounding locale. In performing its func- tions, it engaged personnel to perform the circulation of the paper whom it describes as "contract carriers" and "contract tube carriers." It has been the position of the Respondent that these "contract carriers" and "contract tube carriers" are independent contractors and not em- ployees of the Respondent and thus should not have been included in the bargaining unit. The Regional Di- rector has ruled that notwithstanding the contract be- tween the Respondent and its "contract carriers" and "contract tube carriers" they are employers under the Act and thus are included in the bargaining unit which the Union seeks to represent. Although the Respondent does not accede to this de- termination, it has stipulated to the inclusion of the "con- tract carriers" and "contract tube carriers" in the bar- gaining unit for the purposes of this case only. B. The Union Election On February 10, 1981, the Union filed its petition for recognition as the exclusive bargaining agent of the em- ployees of the Respondent identified as follows: All full time and regular part time employees of the employer and all mechanical and non-mechanical departments of the Warren Tribune-Chronicle at 240 Franklin Street, S.E., Warren, Ohio, including circulation, classified advertising, mailroom, mainte- nance, commercial advertising, editorial business office, composing-coldtype, pressroom, engraving, machine repair, cafeteria employees, contract driv- ers, motor tube route drivers and district sales man- agers, but excluding all managerial employees, con- fidential employees and professional employees, guards and supervisors, as defined in the Act. As of February 7 the Union possessed valid authoriza- tion cards signed by 113 of the persons in the unit de- scribed above at which time the total number of persons in the unit was 224. Between February 7 and the date of the election, April 6, the total complement of this unit increased to 235. At the election of April 6, 97 votes were cast for the Union and 119 votes were cast against the Union for a total of 216 valid, counted votes. There were 12 additional challenged ballots resulting in a total number of ballots cast of 228. As noted above, the chal- lenged ballots, if resolved in favor of the Petitioner, are not sufficient to affect the results of the election. The Petitioner filed timely objections to the conduct of the Respondent allegedly affecting the results of the election. Subsequent to the filing of these objections the Union requested to withdraw Objections 7 and 13 of a total of 16 objections. The objections, therefore, remain- ing to be resolved in this proceeding are as follows: Objection 1-The Union contends that on or about February 9, and continuing thereafter, the Employer informed its employees about a new re- tirement plan in order to cause them to vote against the Union. Objections 2, 3, 4, 5, 8 and 14-The Union al- leges that the Employer threatened its employees with loss of benefits and wages if they supported the Union, that if the Union won the election the Employer would not negotiate a contract with the Union, that the employees would lose their jobs if they went on strike and further that Respondent in- terrogated the employees regarding their union sympathies. TRIBUNE CO 979 Objections 6 and 11-The Petitioner contends that the Employer prohibited its employees from so- liciting and distributing literature on behalf of the Union while permitting solicitation and distribution unfavorable to the Union. Objections 9 and 10-In essence, the Union al- leges that the Employer isolated employee support- ers of the Petitioner, thereby depriving them of normal contact with other employees and prohibit- ed known adherents of the Union from attending Employer-sponsored campaign meetings. Objection 12-The Petitioner contends that the Employer singled out supporters of the Union by refusing to give them green carnations on St. Pat- rick's Day. Objections 15 and 16-These objections comprise allegations that the employer increased wages and benefits in order to interfere with the rights of its employees to select a collective bargaining agent, and by other non-specific acts and conduct, inter- fered with the rights of the employees to select such a representative. C. The Alleged 8(a)(1) Violations 1. The alleged threats In the days shortly after the commencement of the or- ganizing campaign, the question of which employees would be included in the description of the bargaining unit was before the Regional Director. The specific ques- tion involved was whether or not the contract drivers and motor tube drivers under written contract with the Respondent were to be included in the bargaining unit. The contracts under which the contract carriers operat- ed are entitled "Motor Tube Independent Contract Agreement" and "Delivery Independent Contract Agree- ment," respectively. These contracts provide, in essence, that the contractor is to furnish a suitable vehicle and a driver to operate that vehicle. The contractor was re- quired to pay such drivers for all gasoline, oil, parts, re- pairs, etc., and to maintain liability insurance to cover his operation. The contractor was further required to pay all state and Federal taxes, maintain proper registration, and driver, chauffeur, and public utility licenses. The con- tracts further provided that the contractor was in exclu- sive control of the distribution of the newspapers entrust- ed to him and that the company should have no liability for expenses incurred, injuries, or damages to property incurred by the contractor, its employees, or other per- sons resulting from the contractor's operation. The con- tractor was further permitted to perform the subject matter of the contract according to his own judgment. The Regional Director determined that such contrac- tors were employees and were to be included in the bar- gaining unit (this ruling is not at issue in this case be- cause the Respondent , for the purposes of this case, stip- ulated that such contractors are employees). During the consideration of the issue of the legal status of these contractors, the Respondent, on February 24, advised the contractors in writing of the potential results in the event the contract drivers were deemed employ- ees. The written statement contained the following: 1. The present contract could be considered an employment contract. 2. Drivers would not be permitted to freely sub- stitute for their routes. 3. All drivers would have to be employees, scheduling of employees days off would be per- formed by management instead of the present free substitution. 4. IRS could determine that both the Trib and the drivers must pay taxes, with a strong possibility of retroactive tax payments due to be paid by both the Trib and the drivers. 5. Insurance certificates for vehicles would have to meet company standards. 6. Specific pick-up and delivery times would have to be scheduled by the circulation department if the drivers were considered hourly employees 7. There could be no sub-contracting by the driv- ers. In addition to the aforementioned change of conditions under which the contract drivers would work, several state laws relating to employees would then come into effect. The laws cover areas such as pension require- ments, income tax withholding requirements, social secu- rity withholding, contribution requirements, and contri- butions by the Respondent under the Ohio Unemploy- ment Workers' Compensation Act. This would require specific information regarding record requirements to comply with the several laws relating to employees. Such laws did not apply to independent contractors. The status of the motor tube contractors and delivery contractors in the judgment of the Company was such that the contractor was not an employee of the Respond- ent. When the Regional Director ruled these to be em- ployees includable in the bargaining unit, it was clear that the independent status of the contractor was open to question, if not, in fact, eliminated . Thus, the Respondent was faced with the dilemma of maintaining its position of treating these contractors as employees and complying with the several laws of the State applicable to employ- ees but not applicable to independent contractors. Particularly important to the Respondent was the question of vicarious liability arising from the actions of the carrier if that carrier is deemed to be an employee. Such circumstances would prompt a prudent respondent to make those changes necessary to insure control over the operation such as the ability to hire, fire, schedule, and otherwise direct the operations of such delivery per- sonnel . It would prompt such a respondent to set up pro- cedures to obtain and maintain the records necessary to comply with the several laws of the State and other gov- ernmental agencies in order to comply with the sub- stance of such laws regarding employees. Thus, the con- tractors were advised, in the notice of February 24, of the potential changes which would probably come about in the event these contract drivers were deemed employ- ees. The issue was not one over which the employees, by their activities, could influence. The question was a legal matter which was initially determined by the Regional Director and, although stipulated for limited purposes by the Respondent, remains one . Accordingly, the Company 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advised that if they are deemed to be employees, certain control over operations would be lost to the contractor. No activity on the part of these employees could be deemed to influence the outcome of the Respondent's di- lemma. Contrariwise, it would seem that such personnel should be advised of such a drastic potential change in their arrangements with the Respondent at the earliest possible moment . It is concluded that the Company's action in this regard did not threaten reprisal or other detriment to the drivers because of their union activities or the activities of the Union itself. The action of the Re- spondent in this regard is not deemed a violation of Sec- tion 8(axl) of the Act. Sometime in March a meeting was held between As- sistant General Manager Peter J. Murphy and several employees regarding the current procedures in effect in the mailroom regarding the occasional requirement to stuff the papers with separate advertising flyers or in- serts. This procedure was performed by part -time em- ployees in the mailroom . Murphy discussed the competi- tive problem the paper had in satisfying advertisers who chose to adopt the insert method of advertising in the Tribune. Some of the Tribune's competitors use the newspaper carriers to stuff such inserts after the papers are delivered to the carriers. The Tribune chose to adopt the use of part-time , on-premises employees as long as the cost of so doing was competitive . At the meeting questions from the employees were entertained. It was inquired by an employee whether or not the Tribune was going to abolish its current system of stuffing inserts by part-time employees. The meeting was advised by Murphy that the company could adopt the other method and added that, "as we continuously said throughout the campaign . . . in collective bargaining with the Union, you can either get more, the same or less, but under pre- vailing conditions of the election campaign, nothing can be promised." In late February or early March, a contract driver was told that in the event the Union became the representa- tive of the employees defined in the bargaining unit that she, as an employee, could not permit her husband to drive the delivery vehicle since she, not the husband, would then be an employee of the Respondent. The con- tract driver to whom such statement was made did not have a driver's license and the employment of another driver by this independent contractor was necessary to accomplish the distribution for which she had contract- ed. In March the circulation manager , Thomas M. Stith, stated that in the event the Union became the bargaining agent of the employees, the employees could lose free parking and subsidized cafeteria, could obtain reduced wages, and could be denied the use of substitutes in car- rying out their functions. The circulation manager told the employees that they could "end up receiving either more or the same or less" in the event of collective bar- gaining with the Union. About the same time, Stith had a conversation with a contract driver. That driver questioned Stith regarding the continuation of a subsidized cafeteria stating that he had heard rumors that such would then be terminated. Stith denied any knowledge of such a rumor and stated, "In the event that the Union came in there was a possi- bility that they could get more, the same, or less. It was all negotiable." These are examples of the general policy of the Com- pany regarding all matters of employee-employer rela- tionships in the event of collective bargaining . The Com- pany's policy in this regard was expressed in a letter of March 20 to all its employees . Part of that letter read as follows: Collective bargaining is a give-and -take process in which no one can predict what will result. The Union may promise but they cannot guarantee any- thing. Although the Tribune will certainly bargain in good faith, all wages, benefits, and working con- ditions are negotiable and employees could lose, get more or just keep what you already have as a result of bargaining . . . even with the Union and the Tribune bargaining in good faith, there are no guar- antees that wages, benefits or working conditions will improve or for that matter stay the same during negotiations. Therefore, to specify, in response to employees' ques- tions what might, in the future, develop in regard to a specific item such as the mailroom stuffers' program, is one which, if the Union becomes the exclusive bargain- ing agent, will be negotiated and the result "could" be the change in procedures regarding insert advertising. It is argued that such dialogue analysis turns on the ques- tion of whether the Respondent or representative used the word "could" or "would." In this instance, the wit- ness for the Government, Delores Gootee, acknowledges that the work "could " was used. Therefore, the incident was no more than a specification of the general statement made in the letter from the Respondent to its employees. These incidents do not constitute violations of Section 8(ax 1) of the Act. About March 26, an employee, Frances Plewa, while in the cafeteria and near a table where Zell Draz, the general manager, and two employees were seated, over- heard Draz say that "the IUE stands for ignorant, une- ducated employees." Plewa acknowledged that another conversation was taking place at the table but she did not recall the content of that dialogue . It is ludicrous to contend, as the General Counsel does , that such a state- ment overheard under the conditions set forth in this record constitutes coercion against prounion employees. To characterize this incident as "unlawfully informed employees who were wearing union buttons" is simply not supported by the evidence. Draz, in attempting to recall the situation, testified that the incident occurred the day after a birthday party given to her by several su- pervisors. She was relating to the group at the table some of the funny presents . One of these presents was from Tom Stith and was a T-shirt with IUE on it. She asked him what it meant and he said it meant ignorant, uneducated employees. The witness overheard part of a conversation between Draz and other persons. It was not directed to her or to other employees . It was not intend- ed to nor could it influence any of the employees against the Union and does not violate the Act. TRIBUNE CO. 981 Plewa also testified that, apparently in the same con- versation, she heard Draz say that "if they thought things were tough now they should wait until this is over" and "if they attempted union activity again she would make them cry." In view of the manner in which Plewa overheard the derogatory acronym about the Union, the accuracy of the rest of her testimony regard- ing the eavesdropping is suspect . Draz denied "saying anything stupid like that." Under the circumstances and having observed the demeanor of this witness and her acknowledged limited ability to overhear the total con- versation, prompts me to discredit her testimony and, for reasons hereafter expressed, credit that testimony of Draz. I find that the foregoing incident does not consti- tute a violation of Section 8(a)(1) of the Act. About January 28, Katheryn Snowball, an employee, was having lunch with Robert Hyman, a supervisor. During such occasion, Hyman and the employee en- gaged in a discussion about the company handbook and the Union. During that conversation, Hyman made the remark that if the Union won the election, the Respond- ent could hire a lawyer and start from zero, and it might take an employee 2 years to reach the wages, hours, and working conditions currently enjoyed by the employees. Such a statement by Hyman is no more than a specifica- tion of the general statement made by the Respondent to its employees that as a result of negotiations, things such as wages, hours, and working conditions are to be nego- tiated and the results of such negotiations cannot be fore- told. Again, the witnesses called by the General Counsel appear to repeatedly recite isolated instances in both formal and informal conferences with supervisors as vio- lations of Section 8(a)(1)(A) of the Act. Such testimony, because it does not comprise the essence of the entire conversation, can hardly be evaluated to provide a clear determination that such constitutes a violation of Section 8(a)(1) of the Act. On the contrary, such surgically ex- cised statements do not discharge the onus on the Gener- al Counsel to prove such acts by a preponderance of the evidence. I find that this episode does not establish a vio- lation of Section 8(a)(1) of the Act. An employee, James Harrington, testified that on March 17, Ralph Karafe, a supervisor, called Harrington to Karafe's office. He testified that Draz was there and Karafe said nothing more than, "If I voted for the Union I was going to go out the door." He alleges that Draz shook her head in agreement. The meeting took 20 to 30 seconds. This isolated incident is incredible . I do not credit the testimony of Harrington because it does not conincide with the practices engaged in by the Respond- ent and its supervisors and, in essence , testified to by most of the witnesses in this case . Karafe and Draz denied the incident, Draz stating that she was never in the office of Karafe with Harrington. The subject matter of this testimony is so incongruous with the evidence of this case depicting the Respondent 's conduct of its cam- paign against the Union that I discount it and discredit Harrington's testimony. About March 25, a supervisor of the composing room, John Perfette, advised an employee, Cheri Fellows, that because she was at the bottom of the seniority list she would always be the first to go in the event of a layoff. Fellows testified that Perfette threatened her with layoff and loss of benefits if the Union was successful. Perfette testified that he stated to her that in the event there was a layoff, she would be the first to go and if there was a strike, she would lose her company benefits while she was on strike. These discussions occurred in more than one conversation and were the result of Fellows ques- tioning Perfette about the content of campaign letters which the Respondent had passed out to employees. This is a further example of the practice of the General Coun- sel in this case to present a supervisor's comment made in answer to a question by an employee as a positive, un- solicited statement of that supervisor. The subject matter of Perfette's comments was contained in the letter dis- tributed by the Respondent to the employees and was simply a repetition of the details in the document. There is no contention that the letter contained unlawful com- munications. I find that the foregoing does not violate Section 8(a)(1)(A) of the Act. In the second week of February, one Laura Lemmon, a motor tube driver, inquired of her supervisor, Harry Newman, whether or not her overpayment for mileage reimbursement would be lost as a result of negotiations with the Union. Due to changes in her route, Lemmon had been receiving approximately $80 per week in excess of that to which she would have been entitled for mile- age reimbursement under the terms of her contract. An adjustment was made by her supervisors whereby this overpayment was not eliminated but other reimburse- ments to her were reduced or eliminated. On this occa- sion Lemmon expressed to Newman that she feared the overpayment would be eliminated as a result of negotia- tions with the Union. Newman testified that he was care- ful to use the phrase which he had been told to use and which had been used over and over again in employee discussions with management and that is that negotia- tions could end up producing more, less, or the same. This incident does not comprise a violation of Section 8(a)(1) of the Act, rather it is the statement from a super- visor prompted by an expressed fear of an employee. Again, his response was reflecting the policies of the Company in responding to employee questions. I find that such is not a violation of Section 8(a)(1) of the Act. On February 27 a campaign letter from the Company was distributed . It had references to some changes in the pension plan. Debbie Yost, a supervisor, asked an em- ployee, Delores Cidowski, whether she had any ques- tions. Debbie Yost denied saying that Cidowski's retire- ment would "be on the line" and the Company would not make any contributions for 2 or 3 years. Yost testi- fied that "I don't even talk like that." Yost said that she told her that everything is negotiable. She could have the same, more, or less, there is no way of knowing what would happen . This phrase, in essence, is the phrase which management had directed its supervisory person- nel to use in response to such questions . The written ma- terial in relation to the campaign distributed by the Com- pany was distributed to all employees. The supervisors were instructed to inquire whether or not the recipient had any questions regarding the distribution on matters such as this pension plan and, if so, they were to state 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that such things are negotiable. Yost stated that she told Cidowski the whole thing could possibly drag on for 2 or 3 years. She did not state that the Company would stop contributing to the pension plan for 2 to 3 years. Yost's testimony is more credible than Cidowski's and in conformity with the logical answer to a baited question. This is another example of surgically excising a conver- sation between management and an employee by attrib- uting the response to a question from an employee as a positive statement by a supervisor. Debbie Yost's re- sponse to Cidowski's question was that the entire process could take 2 to 3 years, not that the Company would stop making payments on the pension fund for 2 to 3 years. I do not find that the evidence of this incident is sufficiently credible nor accurate to meet the burden of proof required of the General Counsel to establish a vio- lation of Section 8(a)(1) of the Act. The General Counsel has alleged that about April 3, Supervisor Bruce Crawford told employee Cidowski that he wished the employee would not go to the Union meeting scheduled for April 5 and, if the employee went, the employee should be aware of the consequences of union representation before voting. Cidowski testified that Crawford and she were discussing the Union and she told Crawford exactly how she felt. She told him she was discouraged with the way the Company handled the campaign and she would be attending the union meeting on Sunday and "no one or nothing was going to stop me." Cidowski also testified that Crawford responded that he wished she would not attend the meeting and, if she did, she should be aware of the consequences of union representation before she voted. Cidowski admit- ted that employees received many letters from manage- ment asking employees to consider all the facts before voting, consider the consequences both pro and con, and to review all the facts before voting either for or against the Union. It had been the Company's policy published by both written letter and in a speech by Publisher Draz that the employees should be urged to recognize the seri- ousness of their act and consider carefully before they vote. In no incident was there any implied threats of re- prisals. Crawford could not recall the specific conversa- tion about which Cidowski testified. He maintained that in all instances, when questioned on such subject matters, he advised them that negotiations could result in more benefits, the same benefits, or less benefits. I do not find the statement attributed to Crawford as a threat in any way nor intimidating to Cidowski nor to any other em- ployee nor should it have been so perceived by Cidowski or to anyone to whom she relayed the incident. I do not find this to be in violation of Section 8(axl) of the Act. On March 25 the Respondent distributed to all its em- ployees a certain letter attempting to answer questions which "had been asked." The General Counsel contends that this letter of March 25 was distributed in order to discourage union activity because it misrepresented em- ployees' employment and reinstatement rights. The mate- rial in the letter regarding employment and reinstatement was contained in the first question and answer in the letter. That question and answer was as follows: Q. Do I risk losing my job during a stake? A. An emphatic "Yes." If you chose to strike over the terms of a contract you can be permanent- ly replaced by another worker. This is the law. Your replacement can keep your job after the strike is over. This is the only reference to a letter from the Respond- ent to its employees about which the General Counsel complained . The Respondent has used many letters in the conduct of its campaign . It is deemed significant that only one was deemed to violate the act (as a result of a single question and answer). This effort to recite the law to employees is probably best avoided. The significant terms of this statement is the limitation of the nature of the strike about which it refers as one "over the terms of a contract." I deem this characterization an economic strike and not a strike arising as a result of an unfair labor practice. The status of employees after a strike should be important to an employee in determining whether or not he wishes to involve himself as a member fo a union. The results of such conduct should be antici- pated in order that an intelligent decision may be made by such employee. It is difficult to convey such informa- tion to laymen. It is not necessary that the Respondent provide the employee with a legal brief as long as the essence of the statement is correct and does not have the effect of misinforming the employee. Although it is true that other circumstances could result in the reinstatement of the striker, such as a strike to protest an unfair labor practice, or a situation where a permanent replacement leaves the job creating a right in the striking employee to be recalled. Although the letter from the Respondent about which the General Counsel complains did not set forth all the potentials, the statement was essentially cor- rect and certainly is one which should be conveyed to the employee in order that he or she may be an informed voter. It is also true that in the event the Union felt that the members of the bargaining unit should be informed in more detail, it certainly had the opportunity to so inform. I find that the statement in the letter of March 25 is essentially a correct statement and one which the voting employee should be aware. It is not a violation of Section 8(a)(l)(A) of the Act. About March 5, an employee, Delores Gootee, went to Murphy's office to advise him that she was on the Union's committee and to stress her reasons. During this conversation, which lasted about 2 hours, Gootee raised, among other things, the question of job security. In re- sponse to this specific question of Gootee, Murphy point- ed out that during an earlier union campaign in 1980 people who began the campaign were still employed by the Tribune and that such example should ease the con- cern of the employees about job security. Gootee also raised the question of the persistency of the Company against the Union in the present campaign. Murphy stated that the Tribune had a right, if it believed that it did not want a union, to oppose the Union whether it meant the expenditure of time and money in order to do so and that the Company had the right to defend itself against the Union just as the Union had the right to at- tempt to unionize the Tribune's employees . Gootee ad- mitted that the Company had informed its employees TRIBUNE CO that there were rights on both sides . Regarding questions of the rights of management , Murphy stated to Gootee, notwithstanding the Union 's success, that the Respondent would still run the newspaper. On the following day Murphy, in a conversation with an employee, Lois Benke (which entailed approximately 15 minutes), told Benke that if the Union won and the Company lost, collective bargaining would commence and the employees could get more, the same, or less and that there would be no guarantee on the results of col- lective bargaining. He expressed that he felt the paper had a good relationship with its employees but the Union could constitute an intervention of this relationship and that on certain matters the Company would have to go through the Union instead of solely to the employees, as in the past. Sometime in March General Manager Zell Draz read a prepared address to employees. This address was read several times to several groups of employees because the number of employees was greater than would allow a single, unified meeting. Draz read the speech so that there "couldn't possibly be any mistake ." The speech read by Draz on these occasions began with the follow- ing text: I would prefer talking to you informally about the election but I cannot. The nearness of the election dictates that I read from a prepared statement so that I can document what I tell you today. The ap- proach of this most important election also prevents me from answering questions when I finish. The speech given on these occasions by Draz is not re- produced in its entirety here nor in any portion from the context because no specific allegation is made that the contents of the speech, as written, violates the Act. On February 23, during one of Draz' talks with the employees in the photography room , she stated in regard to wages that "I don't see how we are going to give you anymore than you are already getting whether we have a Union or not." She added that "You can 't get blood from a stone." However, in this regard, she further told these employees that she could not tell them that they were going to have any more or less of anything because if the Union became the collective-bargaining representa- tive, those matters would have to be negotiated. 2. Alleged surveillance of union activity The General Counsel contends that Supervisors Crow- ley, Kistler, Profera, Grinelli, Rudolph, Sekella, New- man, Leigh, and Perfette engaged in unlawful surveil- lance of union adherents while they were engaged in union activity and discriminatorily followed and ob- served union adherents while they were engaged in their normal, ordinary, work-related activities. An employee, Gootee, testified that her job requires her to move all about areas of the building, and that her supervisor, Ru- dolph, would watch her from his desk or follow her into other departments. She testified that it would be hard to say how often this happened, but he was there every time she turned around . Gootee admitted that Rudolph's job takes him throughout the building also and because 983 there was reconstruction being completed on the prem- ises, the various departments were close in proximity to one another. She did know that after the reconstruction provided a specific area for her department , the alleged surveillance "tapered off." Rudolph, the supervisor whom Gootee contended en- gaged in this surveillance, was Gootee's supervisor; Ve- ronica Smith was her supervisor and her position in the office at the time was immediately next to Gootee, making surveillance activity unlikely , and unnecessary. Gootee also stated that her duties would require her to go to the composing room . On those occasions Supervi- sors Grinelli, Perfette, or Profera would stop and ask her what she wanted . Gootee claimed that this went on until August or September, 6 months after the election. Grin- elli acknowledged that when she observed persons such as Gootee in the composing room, it suggested to her that they had some problem for that would be the only reason they would be there . She would ask if she could help them. She engaged in this practice before, during, and after the union campaign. Perfette's testimony is substantially the same. The role of the supervisor is to resolve problems that arise and not have their employees engaged with interruptions on such matters. This has always been and continues to be the policy . Lois Benke, an employee; Roger Trimbell, a contract driver; Cheri Fellows, 'Laura Lemmon,' Gerald Cunningham, Jake Click, a contract driver; Frances Plewa, and Larry Coat all testified to the effect that they were followed about the premises while engaged in their work for the Respondent by various of the several super- visors of the Respondent. In each of the foregoing cases, the supervisor denied specific surveillance for any pur- pose and explained that his presence at the time and place about which the various employees complained comprised the performance of his duties as a supervisor. None of the employees testified to any significant act of surveillance by a supervisor inconsistent with that super- visor's ordinary and expected work. Also the time ele- ments involved in the alleged surveillance extends beyond the date of the election and, therefore, after the union campaign and suggests that the surveillance was of the employees' ordinary and expected duties as such em- ployees and not of union activities . The disruption of the location of the various departments, due to renovation of the Respondent's premises, contributed to the perception of the employees that a change in surveillance took place with the onset of the union campaign. The evidence also discloses that no instance of such surveillance was direct- ly related to the union activity of the observed employ- ee. Accordingly, I do not find that the perceived surveil- lance of the several employees by the supervisors was in- consistent with the duty of the supervisor nor had the exercise of that duty intensified or changed during the union campaign. The intensification of discussion be- tween employees, as well as employees and supervisors, during the union campaign, attributed to the union cam- paign itself, undoubtedly gave the employee the suspi- cious impression that surveillance was intensified and di- rected toward their union activities . The inference above described is not sufficient to discharge the burden of 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proof in order that a finding of a violation of Section 8(axl) can be made. Accordingly, I find that the Re- spondent did not violate Section 8(axl) of the Act by unlawful surveillance of union activities. 3. The alleged unlawful interrogation of employees About February 3 Circulation Manager Thomas M. Stith was alleged to have interrogated employee Frances Plewa on her union activity and union sympathies. Plewa contends that Stith, during an overtime session at the Respondent's facility, asked Plewa why she thought a union was needed. Plewa allegedly told him what she thought and that she was 100 percent for the Union. She had begun her overt union involvement in December 1980 and Stith was fully aware of it at the time he talked to her. Plewa continued her union advocacy through the election. Stith testified that it was not necessary to ask Plewa about the Union because she frequently stated to him and others that she was a union supporter. She had handbilled in favor of the Union outside the plant in early January and she wore a union button from the onset of the campaign. The Board has held that interrogation of an employee is not a violation of the Act, per se, but only if under the circumstances it constitutes interference, restraint, or co- ercion. See Blue Flash Express, 109 NLRB 591 (1954). The objective rather than the subjective effect on em- ployees is the test. It is clear that in this case a known active union adherent would not be coerced by such a dialogue with Stith. Notwithstanding the foregoing, Stith denied that he had such a conversation with Plewa stat- ing that it was not necessary to discuss union matters with her because she had frequently stated to him, and others, her reasons for being a union supporter . I do not fmd the interrogation by Stith on February 3 to consti- tute a violation of Section 8(axl) of the Act. On March 13 Supervisor Harry Leisy interrogated em- ployee Patty Lutz. She testified that Leisy asked her how she felt about the Union and what she thought of Draz' speech. Lutz told him how she felt and that was the end of the conversation. Lutz had worn a union button from the beginning of the union campaign and her name had been used on union literature. She had publicly indicated her support of the Union and the in- terrogation by Leisy did not comprise unlawful interro- gation of this employee regarding her union activity. No restraint or coercion of the employee is shown. Such dia- logue, without more, is not evidence of unlawful interro- gation. Another incident occurred on February 16 where Su- pervisor Harry Newman allegedly interrogated Laura Lemmon, a motor tube driver, regarding her name ap- pearing in certain material distributed by the Union to the employees. Lemmon testified that she was asked by Newman how her name got on the list. Newman testified that because an employee's name had been used on union literature without his knowledge, he asked her if she was aware that her name was being used . Such discussion with this witness cannot be characterized as interroga- tion. The simple questioning of the employee about her knowledge of her name being used on union literature is not interrogation giving rise to interference, restraint, or coercion of the interrogated employee or other employ- ees. About February 16 employee Roger Trimbell testified that he was interrogated by Supervisor Harry Newman in the mailroom. Trimbell testified , "[H]e came up and asked me what my thoughts were about the Union. I told him that I was for it and he said he was not for the Union, that he said there was no place for the Union, these days." This discussion between the subject employ- ee and the supervisor did not comprise any interference, restraint, or coercion nor did it violate the employees' rights under the Act. It did not influence the employee or others and, therefore, is not in violation of Section 8(a)(l) of the Act. About January 20, prior to February 7, in which the Union obtained its majority by signatures on its cards, Lois Benke, an employee, alleges that she was interrogat- ed about her union activity and sympathy. Benke early in January was an outspoken union advocate. She wore a union button and passed out union literature and her name was on union literature dispensed during the union campaign. Keith Keister, a supervisor, allegedly interro- gated her why the people wanted a union . Her answer to him was that she did not feel qualified to answer a ques- tion like that. It is deemed significant that in these in- stances the interrogation was a one-on -one dialogue. In each case it arose in such an incidental manner between parties who already knew the other's basic feelings on the issues. It in no way comprised a threat or a promise or could be deemed to have influenced, coerced, or re- strained such employee. If such conduct constitutes a violation, it is clearly de minimus and does not constitute a violation of the Act. 4. The no-distribution rule The General Counsel has alleged that the Respondent had "discriminatorily and disparately enforced or main- tained an unlawful no-distribution, no-solicitation rule or policy against union supporters. The alleged incident ap- parently took place in the vicinity of the Respondent's receiving dock. This dock is an elevated platform above a parking lot area immediately adjacent thereto with stairs leading from the parking or truck level to the dock level. At the end of the dock level there is an employee entrance to the Respondent's work area. This dock is the locale from which papers are loaded onto delivery trucks for distribution in the afternoon . In the morning, the docks are occupied by receiving deliveries of preprinted inserts, employees' uniforms, and other miscellaneous supplies. Because reconstruction was underway on the premises at the time, the dock was also being used to re- ceive construction materials . A freight elevator, located on the dock itself, is frequently used by the janitorial staff in its functions. On January 21 two prounion employees were handing out union material. These two, and others among them likewise engaged, were standing at the foot of the stairs leading up to the dock from the parking lot. Some of this group were on the dock level itself. Peter Murphy told these people on that occasion that they were to leave the company property and to go to the sidewalk. Frances TRIBUNE CO 985 Plewa told Murphy at that time that she believed they were within their rights to remain there. Murphy left and returned 5 minutes later to advise those so distributig union material that they could stay at the property where they were located but they would have to stay in the parking area and not on the dock level itself. They complied with Murphy's request and continued to dis- tribute their literature. Later on that morning, Murphy specifically advised Plewa that she could pass out litera- ture at that location as long as she did not block the en- trance or cause any litter. Murphy further stated that he had instructed company supervisors to keep the dock level area itself clear of "pro-company and pro-union handbilling." On March 4, Production Manager Hyman wrote a memorandum wherein he recorded the fact that he had told procompany employees that they could not handbill on the docks but must remain in the parking lot area or the cafeteria. It appears from the evidence reflecting this and similar isolated incidents of handbilling both procompany and prounion that no specific policy was expressed by the Company. Both prounion employees and procompany employees were allowed to solicit support by passing leaflets to employees in a manner designed to maintain orderly ingress to and egress from the Respondent's fa- cility. The incident about which the General Counsel complains, where Murphy advised those distributing union literature to do so from the sidewalk, was clearly in error. Within a few minutes thereafter Murphy cor- rected the error by returning to those to whom he had spoken and advising them that they could distribute on the parking lot, but not on the dock where company op- erations were taking place. This incident does not estab- lish a discriminate or disparate policy regarding distribu- tion and solicitation . On the contrary, it indicates efforts on the part of the Respondent 's management to exercise care in protecting the rights of all employees regarding their union or company preferences. It does establish a violation of the Act. D. The Alleged 8(a)(3) Violations The General Counsel contends that about mid-Febru- ary the Respondent discriminated against an employee, Laura Lemmon, in respect to her hire, tenure, and/or terms and conditions of employment by refusing to reim- burse her for monetary amounts not paid to her by cus- tomers for the reason that Lemmon had joined, assisted, or favored the Union or had engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection . A motor tube route driver under contract with the Respondent, Lemmon, was known to be a union supporter because her name ap- peared on union literature distributed to employees of the Company. Her engagement as a motor tube route driver involved her driving her personal vehicle on a newspaper route and placing individual copies of news- papers in "tubes" located at the curb of customers' resi- dences. It also required her to erect the post and tubes for the use of new subscribers on and along her route. According to the terms of her contract, she was to be paid for erecting the posts and tubes and given compen- sation or credit for those customers who did not pay their bills. A supervisor, Harry Newman, was assigned the re- sponsibility to supervise the motor tool drivers in Janu- ary. Among the term of the contract between the motor tube drivers and the Company was the determination of mileage driven by such drivers in order that they may be reimbursed according to the provisions of the contract. Soon after Newman undertook his new responsibilities, he began to ride with each of the 15 motor tube carriers to verify the mileage incident to their routes to correctly ascertain the rate of reimbursement. His survey disclosed that some drivers were being overpaid, but at a relatively insignificant amount of $15 per week In Laura Lem- mon's case, however, he observed that she was being overpaid $80 per week and this had continued for some period of time under the supervisorship of Newman's predecessor. In consultation with the circulation manag- er, Newman determined that Lemmon's overpayment of $80 per week was of such magnitude that she should absorb some part of her own collection losses which amounted to between $6 and $15 per week. After Newman had determined this condition , on the next oc- casion that Lemmon applied for credit he told her that she would be paid for the manual labor involved in put- ting up the tubes and posts but that she would have to absorb the collection losses as a setoff against her $80- per-week overpayment. Lemmon acknowledged that she was being overpaid for mileage . (Since this time, addi- tional mileage has been added to Lemmon 's route so that the $80 overpayment was absorbed. At that time her credit for collection losses was also restored.) The simple facts that Lemmon was a known union ad- herent and that her contract was subject to adjustment to more nearly reflect the terms of that contract are not evidence of a violation of Section 8(a)(3) of the Act. Interrelation between the Respondent and its contract carrier, Lemmon, in this case, is reflective of a continu- ing "business as usual" arrangement . There is no evi- dence to cause one to relate the treatment of Lemmon by the Respondent to Lemmon's union or Section 7 ac- tivity. There is no question about the facts, as related by the evidence. The evidence does not meet the burden of the General Counsel to establish that these circumstances amount to a violation of Section 8(a)(3) of the Act. The General Counsel also alleges that on April 28 the Respondent deprived an employee of a new employment contract and a scheduled raise because of his union ati- vity. One Roger Trimbell, a contract driver, with a fellow contract driver, Overly, went to Circulation Man- ager Tom Stith to inquire about a new contract and a raise. Trimbell alleges that Stith said , "There was noth- ing that could be done while this mess with the NLRB was going on." Trimbell contends that Stith's predeces- sor, Sekella, had advised him in 1980 that the contracts would extend from April to April and that in April there would be a new contract and a raise. Overly, who ac- companied Trimbell to Stith's office on that date, also testified that they had talked to Stith about a raise. He did not testify that there was a prior promise by Stith's predecessor. This same testimony was given by one Jake 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Click; however, his testimony was that Sekella had said the Company would evaluate the contracts in September and, if it did not, in April and if things were in order he would go to the boss for more money for those contract drivers. Click testified that no promises of a raise were made by Sekella. It is significant that the contracts signed by the various contract drivers did not contain an expiration date. The alleged discussion of a reevalution and "more money" for the drivers "if things were alright" made in 1980 is not deemed to be a raise scheduled for April 1981. To the contrary, the credible evidence on this matter indi- cates that Stith complied with the terms of the contract with the drivers where the contract provided for adjust- ments due to the increase in gasoline prices and such ad- justments were made. A statement in April 1980, that the contracts would be reviewed in April 1981, and if "ev- erything went alright he would go to the boss for more money for us in April 1981 ," is not a promise of a sched- uled wage increase. Certainly, if Stith had told the driv- ers that there was nothing that could be done while the "mess with NLRB was going on" he was stating a cor- rect proposition because the matter of increases of "em- ployees" compensation was a negotiable matter. There was no evidence in this record that the discussion of the contract carriers, contract , or compensation or the result- ing effect of such conversation was in any way related to the union activity of any or all the contract carriers. It is deemed that this transaction does not comprise a viola- tion of Section 8(aX3) of the Act. The General Counsel contends that in July the Re- spondent established a new policy for the annual picnic sponsored for its employees which provided, among other things, for a separate picnic with less desirable prizes for union supporters and that such new policy was instituted because the Respondent believed that "they" had engaged in union activity. The evidence in support of this allegation suggests that the prior practice of the Company to have a company picnic involving all its em- ployees was changed to separate the affair from the con- tract drivers. It is clear that the interest of the contract drivers with regard to such a picnic may well be sub- stantially different from that of the other employees of the Company. It is unimportant why the decision to sep- arate two picnics was made by the Company in 1981. It is also insignificant that the value of the prizes or cost of the picnic to the Company might have varied between the two groups. The inference of the General Counsel is that because a large percentage of the contract carriers were union supporters, the Company chose to separate them from the other employees at the picnic and to spend less, per capita, on the drivers' picnic than for the other employees because of their union proclivity. Not only does the evidence not bear this out, but the nexus between the picnic and the employees ' union or Section 7 activity is totally lacking. I do not find that the circum- stances involving the picnic in the summer of 1981 in any way violated Section 8(a)(3) of the Act. The General Counsel alleges that about April 7 Super- visor John Perfette discriminated against union commit- tee members Nancy Warren, Larry Coat, and Jerry Cun- ningham in respect to their hire , tenure, and/or terms and conditions of employment by refusing to train them while training others in their department on a new piece of machinery and therefore denying them the opportuni- ty to improve and update their job skills and that such action was taken because of the union activity of the named employees. The three employees allegedly dis- criminated against in this regard are Nancy Warren, Larry Coat, and Jerry Cunningham . They contend that the Company was installing a new "plate-making proc- ess" and was demonstrating it on April 7. Warren, Coat, and Cunningham, known union supporters, were alleged- ly excluded from the demonstration . Others invited to the demonstration, however, were union supporters. The demonstration was for the benefit of the employees in the engraving department. The three alleged discrimina- tees were not employees of that department but rather of the composing department . Further, the session was not a training session but just a session for demonstration in order to familiarize the employees with the new ma- chine. Perfette, the supervisor, testified that this occasion was a demonstration lasting about 7 to 10 minutes. It was not a training session for any of the employees, but simply a demonstration to keep the employees advised about what was happening in the newspaper printing industry gener- ally and specifically the Respondent 's facilities. Subse- quently, intensive training was given to employees of the engraving department who would be called on to engage themselves with the new equipment . The invitation to employees to observe the demonstration included known union and company supporters and was not limited to antiunion employees nor were three alleged discrimina- tees excluded because of their union support . The evi- dence is insufficient to establish a violation of Section 8(a)(3). The General Counsel alleges that on October 8 an em- ployee, Lois Benke, was discriminated against by being given a written warning because the Respondent be- lieved that she was a prounion employee. Lois Benke's job title was that of an accounting clerk and included the operation of a computer terminal assigned to her to per- form designated daily, weekly, and monthly computa- tions. Her supervisor was Keith Kister . On October 8 she received a written warning for failing to perform a crucial month end closing function for the month of Sep- tember. The evidence in this regard establishes that Benke failed to perform her duties according to her job description either through a misunderstanding or her in- ability to perceive the importance of checking that a in- dispensable function was performed. Much evidence con- cerning the details of Benke's default is contained in the record; however, none of this evidence establishes that the treatment of Benke in this regard was in any way connected to her prior or present union adherence. It is unimportant to evaluate the culpability of Benke for the misfeasance in the performance of her duties. The evi- dence establishes that Benke was "written up" in the usual course of the Respondent's relationships with its employees There is no evidence of any connection be- tween Benke's union advocacy and the "disciplinary" TRIBUNE CO. 987 action taken by the Respondent. I do not find this a vio- lation of Section 8(aX3) of the Act. Effective January 1, several of the Respondent's em- ployees, who had obtained good supervisory evaluations, were granted a 10-percent increase in salary . Prior to this date and under the new management of Zell Draz, cer- tain wage scales were established for the several jobs filled by the Respondent's employees. Delores Cidowsky was found to have been receiving salaries above the scale then set for her job. As a result, Personnel Director Robert Crowley informed her that because she was al- ready receiving in excess of the amount the wage in- crease had been set for the job, she would receive only an 8-percent increase instead of the designated 10 per- cent. These circumstances also occurred in the case of two other employees who complained to Draz about the reduction in their wage increase . As a result of this in- quiry, Draz granted the wage increase to the two em- ployees who had brought the matter to her attention and, in order to be certain that the condition did not exist with others, looked into the issue. She then found that Cidowsky had also been treated thusly. Draz ac- cordingly increased the wage of Cidowsky from the 8 percent she had received as of January 1 to the 10 per- cent which she should have received. The increase received by Cidowsky as of March 4 was not a "unprecedented wage increase" as contended by the General Counsel. The circumstances arose from an unauthorized attempt by the personnel director prior to March 1 to bring the wage scale of these employees into line with the set scale for the job. When Crowley's action was brought to the attention of Draz, she reme- died the perceived inequity. This condition came about, on, or before January 1, and its remedy in March of that year, when brought to the attention of Draz, is not deemed to be a grant of a benefit in violation of Section 8(axl) or (3) of the Act. On February 28 a contract driver, Roger Trimbell, discussed a question regarding some undefined future benefits with Assistant General Manager Peter Murphy. Murphy advised Trimbell that there was nothing that could be done until after the election and that if the Company lost the election, the matter would be a subject of negotiation with the Union and if the Company won the election, it still could be discussed after the election. This dialogue between the employee and the assistant general manager did not comprise a promise or an im- plied promise of future benefits dependent on the Union's losing the election. It is deemed that Murphy, candidly and correctly , in a general way advised the questioning employee about the manner in which benefits can be considered after the election. It is deemed that this cir- cumstance is not a violation of Section 8(a)(1) or (3) of the Act. Around early April, in a meeting with Murphy and the contract drivers, the drivers were told on this and other occasions that if the Union was succcessful in their campaign, negotiations would commence after which the employees could end up with more , the same, or less than they currently have. A driver, Trimbell, was left with the impression that Murphy said that after the elec- tion the contract drivers would get a 15-percent raise. Trimbell testified that Murphy did not say that after the Union was gone the drivers would get a 15-percent raise, but that such an impression was left with him. The evi- dence in support of this allegation is insufficient to con- clude that a promise of a 15-percent raise after the union campaign was made by Murphy or any other member of management of the Respondent. Also at this meeting, a contract driver asked Stith if the contract drivers were going to receive any type of raise in the new contract. Stith replied that he could not do it now because of the union situation . It is inconceivable that if Murphy had advised that they could expect more , the same, or less through negotiations with the Union that he would also promise a wage increase under the new contracts after the union campaign. This is particularly signified by the acknowledgement of Trimbell that Murphy did not say that a raise would be considered but that it was the "im- pression" left with Trimbell. The evidence regarding this incident is insufficient to preponderate over the estab- lished policy of the Respondent that in the event the Union was successful, negotiations would result in more, the same, or less in the form of wages and benefits to the employees. I conclude that the General Counsel has not established this incident with sufficient evidence to pre- ponderate. About February 11 Delores Cidowsky was paid a cer- tain sum of money comprising "bereavement pay." It is the policy of the Respondent to pay a certain amount of salary to employees who suffer the loss of a close rela- tive. Employee Cidowsky was on vacation in September 1980 when her mother passed away . A question arose in the mind of Cidowsky whether or not she would be enti- tled to this "bereavement pay" because her mother died while Cidowsky was on vacation. She was advised by her supervisor, Bruce Crawford, that she would be enti- tled to the pay notwithstanding that she was on vacation at the time of the loss. Although this advice from Craw- ford occurred shortly after her mother's death, she heard nothing more about it until February when a similar case involving another employee was brought to Cidowsky's attention. This other employee had received "bereave- ment pay" for loss incurred while he was on vacation. She inquired about this discrepancy to Richard Sekella, director of marketing. Sekella expressed surprise that she had not received this pay because she was entitled to it. A check of records indicated that Cidowsky was not, in fact, paid this money and that the lack of payment was an oversight. Therefore, in February, to correct the oversight, Cidowsky was paid for September 29, 30, and October 1, 1980. The General Counsel contends that the granting of "bereavement pay" which allegedly had been previously denied her was an act designed to discourage union activity. It is clear from the uncontradicted evi- dence in this situation that union activity had absolutely nothing to do with the adjustment with this employee's benefit in the form of due "bereavement pay." The nexus attempted to be displayed by this action on the part of the Respondent is unfounded and is, or borders on, the ludicrous . I find no violation of Section 8(a)(1) or (3) of the Act arising from this transaction. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About February 25 General Manager Draz provided for the payment of $1000 to each of two employees, El- eanore Coppersmith and Mary Reese . The payment was made to these two employees because, in the judgment of Draz, they were entitled to some compensation arising from facts surrounding an Equal Employment Opportu- nity case brought by several female employees against the Respondent . Several employees brought a class suit for recovery of equal pay for equal work under the pro- visions of the Equal Employment Opportunity laws. These several employees were compensated by settle- ment with the Company for substantial amounts of money allegedly due because of unequal treatment. Two of the employees similarly situated had not joined in the lawsuit as a member of the class and, therefore, received no funds from the settlement. However, Draz felt that because they were also victimized by the Company, they should be entitled to some compensation and, according- ly, provided a $1000 payment to each of these two em- ployees. This payment is alleged by the General Counsel to be made to discourage protected concerted activity and that the payment was made for loyalty to the Respondent. The underlying facts in the incident belie any connection with union activities by the two employees so compen- sated and a negative effect on other employees. It is un- derstandable that when a class of employees receive compensation to which the Company felt they were enti- tled because of past wrongs, those within the class but not pursuing their rights may also be entitled to some compensation. It is admitted that the amount paid to nonparticipating employees was substantially less than that received by members of the class with whom settle- ment was made . It is not concluded that such payments were in any way connected with Section 7 or union ac- tivities on the part of these employees . It is also clear that any rumor started as the result of such payments that they were made to compensate "loyalty" to the Company is unfounded. The incident is logically ex- plained by Draz and only by a torture of the facts and a vivid imagination could one conclude that the conduct was in any way contrived to, nor did it, affect the other employees of the Company. To conclude that such an act was designed to influence other employees in favor of the Company and against the Union is a conclusion which the facts of the matter does not support. The Employer frequently held meetings with its em- ployees between January and the election of April 6. During one of these meetings Draz reminded the em- ployees that if they had any problems, her door had always been open and was still open and there was no reason why they could not come down and discuss with Murphy or Draz the problems they have experienced. The General Counsel contends that this is a solicitation of grievances and that by maintaining an "open door" policy she would resolve such grievances to the detn- ment of the Union and its campaign . This inference drawn by the General Counsel from the "open door" policy is also unfounded. Draz testified without contra- diction that she had always maintained the "open door" policy. Her predecessor, who was her mother, had main- tained a "close door" policy and one would have to ring a bell in order to get in. Draz always maintained that her door was open to employees. The policy of listening to employees was not one which was required to be aban- doned because of the union campaign . It is the continu- ance of a policy in existence prior to the union campaign and is not a violation of the Act. On March 17 a florist, one of the advertisers in the Respondent's paper, provided, as was its practice, green carnations for St. Patrick's Day. These were, on this oc- casion, distributed by Draz to various female employees throughout the Company . Draz did not employ any pre- ordained distribution method in the disposition of these flowers. As she came across a female employee or caught the eye of the female employee, she gave a flower to that employee . There were insufficient flowers to provide one for each of the female employees. When the flowers were exhausted , as a result of Draz distribu- tion method, several female employees were not among the recipients. The General Counsel contends that this is discrimination because Draz distributed the flowers to known company supporters and refrained from distribut- ing them to union supporters . One employee who did not receive a flower was a union adherent and others who did receive a flower were company adherents. Ci- dowsky, a public declared union supporter, was given a flower by Draz. The General Counsel contends that this incident was discriminating and pursued to discourage union activity among its employees. Such a conclusion is rejected. There is no question that there were an insuffi- cient number of flowers to provide each and every female employee with one, therefore, some distribution would have had to be undertaken that would not pro- vide a flower for each of the female employees. The evi- dence strongly suggests that no prounion nor antiunion discrimination method was employed . The evidence es- tablishes that procompany and prounion female employ- ees were all considered as a recipient of the flowers by Draz. The contention by the General Counsel that this constitutes a unfair labor practice is rejected. E. The Alleged 8(a)(5) Violations The General Counsel has initially alleged nine occur- rences which he contends are violative of Section 8(aX5) which makes the refusal to bargain with the Union an unfair labor practice. The General Counsel's allegations in this regard are as follows: 1. Respondent implemented a retirement plan on or about March 23, 1981, which was substantially different from the retirement previously in effect. 2. On or about July 11, 1981, Respondent institut- ed a new policy applicable to contract drivers re- garding the filling of open job positions in that clas- sification. 3. Around July 1981, Respondent instituted a new job evaluation and review system for its em- ployees. 4. On or about September 1981, Respondent insti- tuted a new method of posting jobs for bid. 5. In July 1981, Respondent established employee committees. TRIBUNE CO. 989 6. In July 1981, Respondent established a new policy for the annual picnic sponsored by its em- ployees. 7. In April 1981, Respondent failed to give its drivers an annual wage increase. 8. On October 30, 1981 , Respondent changed the system of using contract drivers to circulate its pub- lication. 9. In November 1981, Respondent eliminated a mailroom position of the mailroom dock clerk. On October 14, 1982,2 after the close of the evidence in the initial several consolidated cases, the General Counsel petitioned to reopen the hearing in these cases and consolidated them with Case 8-CA-15337-4. This petition was allowed and a hearing thereon took place on November 22. In that complaint the General Counsel alleged that about May 21 , Respondent General Manager William Zammer created an impression among its em- ployees that their union activities and/or concerted ac- tivities conducted for the purpose of collective bargain- ing or other mutual aid or protection were under surveil- lance by the Respondent. The complaint also alleged that the Respondent violated Secton 8(a)(5) of the Act by en- gaging in acts and conduct without prior notice to the Union, or having afforded the Union an opportunity to negotiate and bargain by: 1. Between March 17, and March 21, the Re- spondent reduced the hours of employment of sev- eral employees and laid off five part-time employ- ees. 2. On or about May 18 , Respondent changed the shift assignment and hours of an employee. 3. On or about May 21 , Respondent laid off four employees. 4. On or about May 31 , Respondent changed the hours and conditions of employment for its employ- ees by discontinuing its practice of not publishing on major holidays and commencing publication on major holidays, including May 31 , and requiring employees to work in accordance with this change. The General Counsel alleges that the aforestated acts are violations of Section 8(aX5) of the Act. Treating first the allegations of violations of Section 8(a)(5), as will be discussed below, the obligation to ne- gotiate on these matters is dependent on, in this case, a determination that the election of April 6, 1981, is not sustainable and must be set aside. In view of the conclu- sions hereinafter stated, these charges may be disposed of by simply stating that there was no obligation on the part of the Respndent to negotiate these matters with the Union. The allegations in the consolidated Case 8-CA-15337- 4 regarding violations of Section 8(a)(l) is also deemed not violative of the Act. The occurrence giving rise to such allegations took place on May 21 . Zammer, then the general manager of the Respondent, held a meeting for employees to bring them up to date on certain func- tions of the Respondent. Such meetings had been held prior to this date with employees from time-to-time. The meeting on May 21 was the first such meeting after the conclusion of the Board hearings on May 13. At this meeting, Zammer advised the employees that the Re- spondent had purchased a neighboring newspaper, The Newton Falls Herald, that there would be an increase in health insurance cost, changes in the editorial staff, and other business items. During such discussion, Zammer explained the potential results of the prior hearing. He explained that the administrative law judge could rule in three ways-he could dismiss the matter entirely, he could order a new election, or he could grant a bargain- ing order. He stated that if a bargaining order was grant- ed, the Company could appeal to the Supreme Court if necessary. He also stated that the Company would wel- come a new election and that there was a change in cli- mate because some of the union supporters were gone either as the result of voluntary terminations or elimina- tion of their positions such as those of the contract driv- ers. It is this speech that the General Counsel contends gave the employees the impression of surveillance. It is clear from the record in this case that the employees of the Respondent were open, outspoken, and militant con- cerning the Union. Many of their names appeared on union literature, many wore union buttons , union T- shirts, and distributed handbills for the Union. The evi- dence throughout this case shows clearly that the em- ployees of the Respondent were polarized and overt about their leanings. It would not take surveillance to de- termine that the termination of employment for whatever reason would alter the number of prounion employees. Even more significant is the fact that a majority of the contract drivers were prounion. This fact was stipulated to by the parties. The elimination of the contract drivers would have the possible effect of reducing the number of prounion employees. This is the basis on which the Gen- eral Counsel contends that the employees were given an impression of surveillance. Such an impression is unwar- ranted and the perception by some employees that this surveillance took place is insufficient to constitute a vio- lation of Section 8(a)(1)(A) of the Act. IV. DISCUSSION AND CONCLUSION The General Counsel had requested that a bargaining order be issued in this case requiring the Respondent to bargain with the Union. In the alternative, although not specifically pleaded, the General Counsel requests an order setting aside the election of April 6, 1981, and or- dering a new election. The United States Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1968), held that a bargaining order is permissable in two categories of cases . First, in exceptional cases in which "outrageous" and "pervasive" unfair labor practices have made a fair election impossi- ble. Second, in less extraordinary cases, in which a union has obtained majority support, the employer's unfair labor practices serve to undermine the union's majority strength, and the possibility of a fair election is slight. Each category requires a fording that the respondent is guilty of unfair labor practices , which are characterized 2 All dates hereinafter stated are in 1982 unless otherwise indicated in the former case as "outrageous" and "pervasive," and 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the latter case in which such practices serve to under- mine the union's majority strength and the possibility of a fair election is slight. As heretofore determined, on February 7, 1981, the Union held a card majority of one. Subsequent to that date and prior to the election of April 6, 1981, 4 employ- ees were terminated and 15 new employees were added to the Respondent's employee complement (there is no allegation that the 4 employees were terminated as a result of union or Sec. 7 activities). On March 9, 1981, a Decision and Direction of Election was issued directing the election of April 6, 1981. The petition for certifica- tion of the Union as the exclusive bargaining agent of the Respondent's employees was received by the Respondent about February 10, 1981. At that time, both the Re- spondent and the Union commenced their respective campaigns designed to succeed in the forthcoming elec- tion. The complaint comprises a myriad of instances which the General Counsel characterizes as unlawful threats, interrogations, promises, surveillance, and discrimination against its several employees in violation of the Act. The foregoing findings of fact attempt to treat each of the al- legations independently and to categorize them within the characterization used by the General Counsel. Sec- tion 8(c) of the Act states: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression con- tains no threat of reprisal or force or promise of benefit. The Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1968), stated: Thus, an employer is free to communicate to his employees any of his general views about unionism or any of its specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." Viewing the character of the episodes comprising the General Counsel's case, I am compelled to conclude that the alleged statements of the Respondent's supervisors were taken out of context or made to appear as a posi- tive statement of such supervisor when such was not the fact. Another tactic reflected by the evidence submitted by the General Counsel is what I characterize as "bait- ing." The Respondent had distributed many written com- munications to its employees as the essence of its cam- paign. The Respondent directed its supervisors to ask of its employees on the receipt of these communications whether or not they had any questions . In several inci- dents, the question was asked by an employee resulting in the simple "yes" or "no" response by the supervisor. In such instances the employee testified to the dialogue as a positive statement from the supervisor . Such con- duct mitigates against the credibility of the employee witness and does not support a fording that the commu- nication comprises a threat or promise or other positive statement authored by such supervisor. Also mitigating against the General Counsel's case is the frequent use of episodes which can be classified as minutiae and not of sufficient materiality to support a conclusion that they comprised a threat or promise or any other such unlaw- ful act. Examples of such episodes are seen in the alleged discriminatory distribution of green carnations on St. Patrick's Day to the female employees and the over- heard conversation of General Manager Draz relating that someone had expressed that IUE stands for "igno- rant, uneducated employees." These episodes are reflec- tions of much of the case of the General Counsel. It is clear that the Respondent engaged on an aggres- sive campaign to persuade its employees to reject the Union at the upcoming election . It was not without ex- perience, having engaged itself in such a campaign a few years prior thereto. I do not conclude from the evidence in this record that the Respondent engaged in "brink- manship" which, had it done so, would have done so at its peril. As noted before, the Employer has a right to campaign for the defeat of the Union. It is not assumed that it will be unsuccessful nor that it should refrain in total from communicating the contents of its campaign to its employees. It is deemed significant in this case that al- though numerous written communications were dissemi- nated by the Respondent to its employees, only one con- tained material which the General Copunsel contends comprises an unlawful act and, in that case , I have here- tofore found that it sufficiently and correctly espressed the rights of employees. The General Counsel seems to give importance to the acts of the Respondent after the question of the legal status of its contract carriers was raised . As heretofore stated, the legal relationship between the Respondent and its contract carriers is of obvious importance to the Re- spondent. Simply, the potential for vicarious liability of the Respondent for acts of its "contractor" would give rise to a desire on the part of the Respondent to exercise more control over its carriers than it would had they been deemed independent contractors. The pendancy of a union campaign should not and does not preclude the Respondent from taking those reasonable business and legal steps to conduct its business in a reasonable way. As suggested above, the reason for the Employer's conducting a majority campaign prior to an election is clearly to dissipate the union majority. In this case, its campaign may have been the reason for the defeat of the Union in the election. Several factors tend to support the result of the election. First, the Union originally had a majority of one. Second, a gross change of 19 employees occurred from the date of the Union's majority to the date of the election. Third, the Respondent's campaign was designed to influence the employee to vote against the Union's petition. It cannot be assumed that such cam- paign was totally fruitless. It is, of course, recognized , and the General Counsel contends, that the campaign of the Respondent was the medium through which the several allegedly unlawful acts were committed and that such conduct contributed to, or caused in itself, the destruction of the union major- ity. I do not find that conduct of the Respondent was TRIBUNE CO. 991 unlawful. The Respondent consistently and admittedly told its employees that matters such as "wages, hours, and other terms and conditions of employment are nego- tiable" items when a union becomes the bargaining agent of the employees. It communicated this fact to the em- ployees numerous times during the course of the cam- paign. The only deviations from this suggested by the testimony of the General Counsel's witnesses appear when dialogue is taken out of context or the dialogue is made to appear as a positive statement of a supervisor designed to negatively influence an employee. Numerous occasions are reflected in this record when the alleged unlawful incident arose from a one-to-one dialogue resulting in the framing of the witness' testimo- ny in a context not intended by the author nor likely per- ceived by the witness. The employees of the Respondent were not only polarized, as evidenced by the number who wore union labels, but also participated in the union dissemination of written material and personally ex- pressed their views to supervisors. I do not conclude that the subjective results of the conduct of the Respondent, as evidenced by this record, could conceivably intimi- date or coerce the employees of the Respondent. Accordingly, I conclude that the General Counsel has failed to establish, by a preponderance of the evidence, that the Respondent is guilty of violations of Section 8(a)(1) or (3) of the Act. The alleged violations of'Sec- tion 8(a)(5) are predicated on an obligation on the part of the Respondent to negotiate on matters of wages, hours, and other conditions of employment with the Union. Be- cause the election of April 6, 1981, resulted in the defeat of the Union's petition, I find that no obligation on the part of the Respondent to negotiate with the Union exist- ed and the Respondent did not violate Section 8(a)(5) of the Act. V. THE OBJECTIONS OF THE UNION TO THE ELECTION For the reasons set forth above, it is recommended that the objections to the election filed for and on behalf of the Union are overruled and the election of April 6, 1981, is affirmed and deemed terminative of the Union's petition. CONCLUSIONS OF LAW 1. The Respondent, The Tribune Company, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and the Board has jurisdic- tion over the subject matter and the parties of this pro- ceeding. 2. International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, and its Local 721 is now, and has been at all times material herein , a labor organization within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act as alleged herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER It is ordered that the amended consolidated complaint be dismissed in its entirety and the objections of the Union to the election of April 6, 1981, are overruled. s If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses SUPPLEMENTAL DECISION JAMES J. O'MEARA JR., Administrative Law Judge. I issued an initial decision on December 30, 1983. On August 30, 1984, the Board remanded the case to me for further findings of fact, credibility resolutions, conclu- sions of law, and recommendations in regard to eight specific allegations and related election objections. FINDINGS OF FACT I. THE ALLEGED 8(A)(1) VIOLATIONS A. The Alleged Threats' The General Counsel alleges that about February 6, 1981,2 the Respondent threatened employees with loss of benefits and unspecified reprisals by telling a group of employees that if the Union became the bargaining rep- resentative, the employees would lose everything and the Union would make a great place to work an intolerable place to work. Lois Benke was an open union advocate . Her name was on all the union literature distributed during the campaign. She testified that on February 6, she attended a meeting where Assistant General Manager Peter J. Murphy was present. She stated that at that meeting, Murphy stated that he felt that the Tribune did not need a union and if a union came in , "We would lose every- thing we had and start over from zero. It would make what was a very desirable place to work, undesirable." Four other office employees were present at the meeting. Murphy denied making the statement quoted by Benke. He repeatedly, during the course of his testimo- ny, contended that "We constantly stated throughout the campaign that there would be no guarantee as a result of collective bargaining, but that again, as a result, the em- ployees could either get more, the same or less." Al- though Murphy denied that he stated that the Union would make it an undesirable place to work , he acknowl- edged that he had said that the Company and the em- ployees had a good relationship and with the interven- tion of a third party a change would take place which was something they should think about. i The above-captioned paragraph supplements paragraph "C The Al- leged 8(a)(1) Violations, I The alleged threats," in the initial decision. 2 All dates are in 1981 unless otherwise stated 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Throughout the course of the campaign conducted by the Respondent, the employees were told by manage- ment, particularly Peter Murphy, that in the event the Union succeeded, collective bargaining could result in the employees either getting more, the same, or less and that there could be no guarantee of the result. Murphy has contended this to be the Tribune's expressed position throughout the course of the campaign. Other employ- ees, both union and nonunion, confirmed that this was the essence of the Respondent's campaign. Such a state- ment does not violate the Act. The characterization of Murphy's statement of February 6 is not beyond the scope of what he in fact said. It is conceivable that nego- tiations could range from zero base to infinity. I con- clude that Benke, in this instance and others throughout the course of the testimony, characterized the statement made by Murphy in a manner beneficial to the current interest of the Union and her own. I fmd, as Murphy contends, that he was extremely careful about his state- ments to employees in view of his prior experience with a union-organizing campaign. In several instances in this record Murphy's statement about the possibility through collective bargaining of "more, the same or less" is fre- quently related by the witness as a more specific state- ment. This is reflected in the use of the word "would" by the witnesses in the face of the contention by Murphy that he used the word "could." Notwithstanding this quality of Benke's testimony, it is clear that the state- ments of Murphy in this regard, at this time and place, were not those which would affect the freedom of choice of the members of the bargaining unit. The es- sence of this statement of Murphy contains the funda- mental feature of collective bargaining and was a matter about which the members of the bargaining unit should be informed. I fmd that the statements attributed to Murphy at the February 6 meeting were not those as tes- tified to by the witness Benke. I conclude that the evi- dence adduced by the General Counsel in support of the instant allegation is insufficient to discharge the General Counsel's burden of proof. In the latter part of March, during a conversation in- volving an employee and Assistant General Manager Murphy, in reference to the Union, a supervisor, Robert Hyman, allegedly threatened an employee that if the em- ployee did not like the way things were, the employee should "get out." Floyd E. Overly testified that sometime in February at a meeting between Murphy and Hyman and the distribu- tor drivers, Hyman stated, "If you don't like the way things are run, get out." Overly recalled nothing more of this statement. No further testimony of this incident is contained in the record. Murphy denies that he was at a meeting where any such conversation occurred. Hyman, no longer employed by the Tribune, did not testify. There is no evidence that the statement of Hyman, if it occurred, was made in a union context. Overly's testimo- ny is similar to much of the General Counsel's witnesses' testimony in this case. The statement is clearly taken out of context. One is not able to determine any connotation or innuendo that such statement carried. This evidence is not probative of an unfair labor act. It does not comprise a scintilla of evidence to support a conclusion that the conduct comprised a threat, or any other unlawful act. The General Counsel cites American Spring Wire Corp., 237 NLRB 1551, 1552 (1978), as support for his conten- tion that such a statement violates the Act. A reading of American Spring Wire Corp. clearly points out the posi- tion I take in this regard. In American Spring Wire the Respondent's president stated: "to those of you who still think that you can win more with the Union than you have with us in the past nine years-well, you are dead wrong-leave us alone-get the hell out of our plant." The distinction I make is seen clearly in the statement al- leged to have been made by Hyman, "If you don't like the way things are run, get out." The nexus between a union activity or antiunion animus is clearly lacking in the case at bar and it is clearly present in the American Spring Wire case. The contract carriers' status with the Respondent was subject to change. Their inclusion in the bargaining unit, as directed by the Regional Director, would create a change in their independent contractor status and thus their relationship with the Respondent. This change in status was wholly independent of wheth- er the Union won their organizational campaign or not. There is no nexus in Hyman's statement to the union suc- cess or failure. The General Counsel had alleged that the Respondent, through Assistant Foreman James Marco, about April 4, threatened an employee with job loss, more onerous working conditions, and stricter disciplinary rules if the Union became the bargaining representative of the em- ployee. The General Counsel called Patty Lutz to testify re- garding this alleged incident. Lutz was a mailroom em- ployee and a union activist. She wore a union button throughout the campaign. Lutz' testimony, in essence, was that Marco, in talking to another employee, Theresa Dutting, was "going over" a letter that the Respondent had distributed to employees. This letter (not in the record) apparently listed certain subject matters which could be negotiated if the Union was successful. The letter was described by Lutz as follows: On the one side it had a list of things that could be negotiated for giving up or whatever for the Union if the Union came in. On the backside there were a list of things that could be negotiated. James Marco denied that he threatened any employee or employees with job loss or with more onerous working conditions and stricter disciplinary rules if the Union became the bargaining representative. Marco contends that he consistently stated that everything could be nego- tiable, that an employee could get more, the same, or less during negotiations. Lutz was deemed to be a witness hostile to the Re- spondent. The extent of her inability or refusal to re- spond to the counsel for the General Counsel's questions as he apparently expected or desired was sufficiently clear in the record to justify the use of leading questions. Even with that tool counsel for the General Counsel could not persuade Lutz to be more definite about her testimony. On cross-examination Lutz testified that the context of Marco's discussion with Dutting was in TRIBUNE CO. 993 regard to matters which could be negotiated if the Union came in. In effect, an analysis of Lutz' testimony estab- lished that Marco's discussion with Dutting was consist- ent with the contents of the letter. I deem it significant that nothing contained in the letter was deemed to be unfair or incorrect and therefore unlawful by the Gener- al Counsel because the letter does not comprise a part of the allegations against the Respondent in this case. It is my conclusion that the discussion between Marco and Dutting reported by Lutz did not comprise a threat of loss of job, nor more onerous working conditions, nor stricter disciplinary rules if the Union was successful. I conclude that the testimony of Marco is credible , that he restricted his discussion with the employees to the state- ment that in the event of union negotiations, the employ- ees could get more, less, or the same of what they cur- rently enjoyed. Apparently, Marco, in this instance, was carrying out the directions of the Respondent with regard to his relationship with employees in response to the letters distributed by the Respondent. The Respond- ent consistently has contended that supervisors were di- rected to answer questions about the content of the let- ters distributed to the employees. There was no directive from management precluding supervisory personnel from discussing matters in this regard with employees of the Respondent. To the contrary, they were specifically ad- vised to discuss the contents of the Respondent 's letters with the Respondent's personnel . It is my conclusion that the subject allegation is not sustained by the evidence. The General Counsel has alleged that on January 22, Supervisor Stanley Raphoon threatened an employee that if the Unions were successful in organizing the Re- spondent, employees' wages would go back to minimum wage. The General Counsel's evidence in support of this alle- gation comprises the testimony of Anthony Monti, a former employee of the Respondent . He testified that on January 21, he was speaking with another employee, Bill McAuley, and had told McAuley that if "we vote a union in we get better wages and better benefits." At that moment his "boss," Stanley Raphoon, walked over and said that "if we vote for the Union, then our wages will be cut to minimum wage." There was no further conversation in this regard. Raphoon is no longer em- ployed by the Tribune and did not testify. This expres- sion of opinion on the part of the witness and Raphoon does not constitute an interference , coercion, or restraint of the rights of the witness nor his fellow employee in regard to protected activity . It is the kind of statement that was, no doubt, made frequently in general conversa- tion between employees, including supervisory employ- ees. It is such an isolated incident that I do not deem it to comprise a violation of the Act. It is not suprising that in a vigorous campaign employees would have such dis- cussions between themselves and supervisors. It com- prises simply an expression of opinion on the part of both parties. It does not violate the Act. The General Counsel also alleges that in January 1981 Gerald Rudolph, an assistant sales manager, interfered with, restrained, and coerced Respondent's employees in order to discourage its employees from union member- ship, activity, and sympathies by interrogating an em- ployee about the employees' union activities and by ad- vising the employees that recourse to the NLRB was futile. The testimony in regard to this incident was provided by Delores Gootee, who testified that in early January, well prior to February 7, the date on which the Union allegedly had a one-card majority and before the Febru- ary 10 date on which the Union filed its election petition, she had a conversation with Rudolph during which he allegedly asked her what she thought about the Union. She responded that she thought the Union was a good thing and the NLRB was the only thing that could help them with employment problems. Gootee testified that Rudolph then told her that the NLRB could not help her because it was just a "farce." Rudolph denies having had such a conversation with Gootee. Gootee elaborates on the conversation by stat- ing that during the conversation Gootee's husband was discussed. Her husband is a union electrical construction member and was in the process of using the union hall method of employment in order to seek employment. It is difficult to assign credibility to one or other of the par- ticipants in this conversation . Like so many other inci- dents alleged in this case as violations of the Act, a state- ment or comment has been isolated from the otherwise more general conversation (her husband's efforts to seek work through the Union). It is clear that the statements attributed to Rudolph are taken out of context from the conversation in general . It is also true that the conversa- tion was between Rudolph and Gootee with no other employee being a participant in the conversation nor present when in occurred. The conversation allegedly took place at a time when the Union was not known to have a majority of the employees and had not filed its petition for representation . Gootee, an active promoter of the Union, continued to be such after the commence- ment of the critical period between the time of the public campaign of the Union and the election. It can hardly be argued that such a statement interfered with, restrained, or coerced the Respondent's employees in order to dis- courage its employees from union activity . It is clear from the evidence that, in fact, it did not discourage Gootee, although I recognize that it is the subjective not the objective results of the statement that are material. I conclude that the statement of Rudolph , even if made, does not tend to interfere with, restrain , or coerce the Respondent's employees in the exercise of their rights guaranteed under Section 7 of the Act. The statement of Rudolph, if made, comprises his opinion elicited in re- sponse to Gootee's statement that the employees must rely on the NLRB for relief. The statement, again of Ru- dolph, in no way was accompanied by any threat, prom- ise, or force nor could it reasonably had been assumed to be such by Gootee. It is my conclusion that for the above-stated reasons the statement of Rudolph to Gootee, even if made, does not comprise a violation of Section 8(a)(1) of the Act. The General Counsel has alleged that about September 10, the Respondent, through William Zammer, the gen- eral manager, interfered with, restrained, and coerced its employees in order to discourage its employees from 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union membership, activities, and sympathies by waving a copy of the charge in an NLRB case before an em- ployee while advising the employee that the charge was "stupid and ridiculous" and that the employee was "stupid and ridiculous" and that the employee should repeat this to the Board and see if Zammer gave a "damn." It is clear that the violation, if any, here alleged did not affect the election of April 5. Lois Benke was an active union supporter, as set forth above. It is further clear from the testimony that Benke was less than con- tent with the manner in which management was assign- ing her work which she perceived to be excessive. Alleg- edly due to this excessive workload, she was unable to attend various meetings and otherwise engage herself in union activities. It is Benke's contention that not only her union activities but also her age caused management to discriminate against her. The incident involving Zammer about September 10 was Zammer's reaction to Benke's charges with the Board. It is clear that Zammer was angered by what he deemed frivolous allegations by Benke. His reaction did not constitute any act of intimi- dation or coercion. Zammer was entitled to express him- self under the Act and the first amendment and his exer- cise of those rights did not comprise any coercion, threat, or force against Benke or other employees. The General Counsel also alleges that about Novem- ber 16, the Respondent, through assistant Pressroom Foreman Robert Terry, interfered with, restrained, and coerced its employees by telling an employee during a discussion of charges under investigation by the Board that the reason the fellow employee had received a warning during the previous months was because of "this union stuff." Attellio DiGiacobbe testified that on November 16, 7 months after the election, Terry was giving him an "update" on what was going on in regard to the NLRB proceedings. In the process of this "update" he learned that Lois Benke had received a warning. DiGiacobbe asked Terry about Benke's warning and Terry told him that it was because of "this union stuff." The testimony regarding this incident is deemed insufficient to even ap- proach establishing the Benke was disciplined because of her union activity or that DiGiacobbe was restrained or coerced by a supervisor's statement to DiGiacobbe that Benke was disciplined for union activity. It was the Respondent's practice to distribute copies of all unfair labor practice charges to supervisors so that they could explain them to their employees and keep the employees informed of developments. A charge was filed on November 12, 1981, by the Union which included charges of discrimination against employees, including Lois Benke, because of written warnings and undue har- rassment allegedly because of her union activities. It is not clear that a copy of this charge was being used by Terry to update DiGiacobbe; however, from DiGia- cobbe's testimony it can be reasonably assumed that such was the case. DiGiacobbe said that Terry stated that Benke had received a warning. Case 8-CA-15337 in- cludes on the face of it the allegation that Benke had been issued a written warning. As a result of this disclo- sure to DiGiacobbe, DiGiacobbe asked why Benke had received a warning . Terry said, "this union stuff." Such a response to such a question is reasonable when one looks at the written charge Terry was explaining to the em- ployees. It is clear on the face of that charge that Lois Benke had received a written warning and the charge al- leged that it was because of her activities on behalf of the Union. The response of Terry to the question was, therefore, reasonable , accurate, and not such as would tend to coerce or interfere with the freedom of the em- ployees to conduct Section 7 activities . For the forego- ing reasons, I conclude that the allegations of the inci- dent on November 16 do not comprise a violation of the Act. B. The Alleged Unlawful Interrogation of Employees The General Counsel alleges that about February 28, 1981, Robert Hyman interrogated an employee, solicited grievances, and impliedly promised benefits when he asked that employee what benefits the drivers wanted, advised the employee that he would check on the bene- fits, and asked the employee if the employee received more benefits, would it change his sympathy for the Union. This alleged episode was testified to by Richard Trim- ble, a contract driver who was terminated when he went to Florida in June 1981 and failed to return when expect- ed. Trimble testified that about February 28, Hyman asked him "What do you drivers want?" Trimble told him that they wanted "mainly-hospitalization and vehi- cle depreciation allowance." Hyman allegedly asked him, "If I can get these things for you, would it sway the out- come?" Trimble responded, "You let me know tomor- row." No one else was present during this conversation. The next day Peter Murphy met Trimble in the parking lot and told him that he had talked to Hyman and there was nothing they could do until after the election. This conversation was isolated between Trimble and Hyman. Because Hyman's suggested that there would be some way to satisfy the needs of the contract drivers, an im- plied promise of a benefit was made. However, the next day Murphy advised Trimble that nothing could be done until after the election. This episode is consistent with the Company's policy in the conduct of its campaign. Murphy has frequently said that in the event the Union succeded, all matters regarding conditions of employ- ment would be negotiable and the employees could obtain more, less, or their conditions could remain the same. Taking the entire conversation as Trimble related it, one can clearly see that Trimble was not made a promise of benefit but, on the contrary, was told that no consideration of working conditions could be made during the pendency of the union campaign. Taking to- gether these repeated statements of Murphy that these matters would be negotiable if the Union won, it cannot be said that Trimble was misled, interfered with, re- strained, or coerced in the exercise of his rights under Section 7 of the Act. Whatever implication was left after Trimble's conversation with Hyman was dispelled by his further conversation the following day with Murphy. I, however, do not credit the testimony of Trimble in this regard. Trimble prefaced his recitation with the dialogue TRIBUNE CO. between Hyman and himself by saying that Hyman said, "If you tell anyone this, I'm going to deny it " and then Hyman asked, "What do you drivers want?" In my judg- ment, Trimble set the stage for an anticipated denial by Hyman. Trimble had also lost his job as a contract driver when he failed to return from Florida as expected in July 1981 . Notwithstanding my conclusion that the epi- sode, if it occurred, was not such that would constitute a violation of the Act, I do not credit Trimble's testimony, notwithstanding the failure of Respondent to call Robert Hyman as a witness. This episode is reflective of the propensity of the Gen- eral Counsel's witnesses to relate that portion of an epi- sode which serves their end. The testimony of Trimble regarding Hyman's statements of February 28 appears to be evidence of an improper interrogation and a promise of benefits. However, when the entire episode is pack- aged to include the remarks by Murphy to Trimble in this regard, one can see that Trimble was advised cor- rectly that no matter of benefit can be discussed while the union campaign was pending and, if the Union was successful, it would become a matter of negotiation with the union-bargaining committee . I do not find this con- versation to be a violation of the Act. C. Credibility In deternuning ' the credibility of each of the witnesses called by the General Counsel to adduce evidence in support of the specific allegations of the complaint, I have considered not only the issue of the truth or falsity of the testimony of such witness but, more importantly, the propensity on the part of such witnesses to create the impression of a threat of reprisal, interference, restraint, and coercion of employees by the various supervisory personnel of the Respondent. This was attempted by recitation of dialogue which is obviously incomplete and isolated from the overall discussion or dialogue at the time (statements out of the context of the discussion) and one-on-one discussions between employees sympathetic to the union causes and minor supervisory personnel management. It is clear that the campaign philosopy adopted by management in pursuit of their vigorous campaign against the union organization effort was that in the event the Union succeeded, matters involving sala- ries and working conditions would be subject to negotia- tions and that in negotiations the employees could gain, lose, or remain the same as far as these negotiable mat- ters are concerned . The fact that Respondent used the written method for communicating with its employees on the subject matter and only one of such communica- tions was deemed by the Union to be faulty reflects the care with which the Respondent took not to overstep the lawful limits of an antiunion campaign. The Re- spondent has also directed its supervisors to respond to questioning by the employees regarding these written campaign documents. This gives rise to the practice ap- parent in this record of interrogations by the employees of the Respondent's supervisor of a nature whereby the interrogation is caused to appear as a positive statement by the supervisor. This enables the witness for the Union to testify truthfully about the innuendo or impression perceived by the author of the question. I am compelled 995 to conclude that the general statements of the Respond- ent that in the event the union campaign succeeds, such matters will be negotiated and may result in more, less, or the same were communicated to all the Respondent's employees and that any deviation from such expressed campaign philosopy arose when the prounion employee chose to perceive a dire meaning on the part of the Re- spondent . The resolution of the issues in this case is pri- marly accomplished by the application of the principles expressed in the case of Blue Flash Express, 109 NLRB 591, 594-595 (1954). There the Board in treating the question of unlawful interrogation stated: There is the strong implication that the dissenting members would hold interrogation to be coercive per se, which, of course, means wholly without regard for the circumstances in which it occurs. This would mean that a casual, friendly, isolated in- stance of interrogation by a minor supervisor would subject the employer to a fording that he had com- mitted an unfair labor practice . . . . The Board is required to determine the significance of particular acts of interrogation in the light of the entire record in the case . . . . In summary, it is my conclusion that the alleged unlaw- ful acts with which the General Counsel charges the Re- spondent comprise isolated instances of dialogue between employees and supervisors occurring in the course of a vigorous management versus union campaign. The effort by both parties was primarily to inform the voting mem- bers of the bargaining unit in order that a more intelli- gent, considered vote could be cast by that employee. The absence of naivete among the employees is clearly evidenced by the ability of those employees to isolate ap- parently damaging dialogue and attribute the saying to the various levels of supervisory personnel. When such episodes are displayed by the evidence, it is clear that no coercion, intimidation, threat, or promise could have rea- sonably been perceived by the relating employee or coemployees. To attribute a more significant result would amount to the cloaking of the employees with a level of susceptibility much lower than perceived by me. For these reasons and those expressed in the initial deci- sion, it is my conclusion that the General Counsel has failed to discharge the onerous of proof by a preponder- ance of the evidence in regard to each of the numerous allegations of unfair labor practices recited in the con- solidated complaint herein. II. OBJECTIONS TO THE ELECTION The Union's objections were considered in the deter- mination of the specific charges of unfair labor practices relating to the specific objection. Objection I alleges that commencing about February 1, 1981, and continuing thereafter, the Employer informed its employees regarding a new retirement plan to cause its employees to vote against representation by the Peti- tioner. It was stipulated by the parties that the issue re- garding the retirement plan alterations are intended to comprise a violation of Section 8(a)(5) of the Act, herein determined to be a matter subject to negotiation only if a 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duty to bargain was found . No such duty was found to exist. Objection 2 alleges that about February 24, 1981, the Employer threatened its employees with loss of benefits due to their activities on behalf of the Petitioner. No threat to the employees regarding loss of benefits due to their activities on behalf of the Union has been found. This objection is overruled. Objection 3 alleges that in the course of the campaign, the Employer informed its employees that it would not negotiate a contract with the Petitioner if it won the election and notified the parties that if the Petitioner won the election, they could suffer a loss of wages and benefits. This objection is not sustained by the evidence on which findings and conclusions have been made in this regard. This objection is overruled. Objection 4 alleges that about March 25, 1981, the em- ployer informed its employees that if they went on strike, they would lose their jobs. It has been determined herein that the information regarding the status of em- ployees' tenure in the event of a strike was essentially correct and did not comprise a violation of the Act. This objection is overruled. Objection 5 alleges that about March 19, 1981, and con- tinuing thereafter, the Employer threatened part-time employees that if the Petitioner won the election, they would suffer a loss of employment and/or benefits. It has been determined that the evidence does not support the allegation that such threats took place on the part of the Respondent and that the evidence is insufficient to estab- lish such a threat. The objection is overruled. Objection 6 alleges that throughout the course of the campaign the Employer prohibited its employees from soliciting and distributing literature for the Petitioner. No evidence of such demonstration, solicitation, and distrib- uting is contained in this record . This objection is over- ruled. Objection 7 alleges that throughout the course of the campaign the Employer engaged in surveillance of em- ployees distributing literature on behalf of the Petitioner. This objection was withdrawn. Objection 8 alleges that throughout the course of the campaign the Employer interrogated its employees con- cerning their activities, interests , and opinions on behalf of the Petitioner. This objection is based on factual mat- ters which have not been established by the evidence in this case. The objection is overruled. Objection 9 alleges that throughout the course of the campaign the Employer isolated supporters of the peti- tioner and prevented them from having normal contact with employees of the Employer. There is no evidence to support this allegation and the objection is overruled. Objection 10 alleges that throughout the course of the campaign the Employer excluded employees who were known adherents of the Petitioner on attending meetings of employees thereby depriving them of the benefits re- ceived by those employees who were invited to the meetings. There is no evidence to support the allegation contained in this objection and the objection is over- ruled. Objection 11 alleges that throughout the course of the campaign the Employer permitted employees who were against the Petitioner to engage in solicitation and other activities while prohibiting the same rights to employees who were adherents to the Petitioner . There is no evi- dence to support the allegation contained in this objec- tion and the objection is overruled. Objection 12 alleges that about March 17 , 1981, the Employer refused to give green carnations on St. Pat- rick's Day to employees who were adherents of the Peti- tioner. There is no evidence to sustain the allegations contained in this objection and the objection is over- ruled. Objection 13 alleges that about March 31, 1981, the Employer reinstituted the Tribune Employees Handbook Committee in order to interfere with the rights of its em- ployees to select a collective-bargaining representative. This objection has been withdrawn. Objection 14 alleges that during the course of the cap- tive audience meetings , the Employer threatened its em- ployees for engaging in activities on behalf of the Peti- tioner. There is no evidence to support the allegations in this objection and the objection is overruled. Objection 15 alleges that about March 4, 1981, and con- tinuing thereafter, the Employer increased the wages and benefits of its employees in order to interfere with the rights of its employees to select a collective-bargaining representative . There is no evidence of this to support the allegations contained in this objection and the objec- tion is overruled. Objection 16 alleges that by the acts set forth above and by other acts and conduct the Employer interfered with the rights of its employees' to select a collective- bargaining representative. There is no evidence sufficient to support the allegation contained in Objection 16 and, to the contrary, the evidence herein is determined to pre- clude the allegations in this objection and the objection is overruled. CONCLUSIONS OF LAW 1. The Respondent, The Tribune Company, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and the Board has jurisdic- tion over the subject matter and the parties to this pro- ceeding. 2. International Union of Electrical , Radio and Ma- chine Workers, AFL-CIO-CLC and its Local 721, is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act as alleged herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- POWs TRIBUNE CO. 997 ORDER It is ordered that the amended consolidated complaint be dismissed in its entirety and the objections of the Union to the election of April 6, 1981, are overruled.