Mast Advertising & Publishing, Inc.

MAST ADVERTISING Mast Advertising & Publishing, Inc. and Communi- cations Workers of America, AFL-CIO. Cases 17-CA-13106-1, 17-CA--13106-2, 17-CA- 13106-3, and 17-CA-13148 19 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 19 May 1986 Administrative Law Judge Donald R. Holley issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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, 2 and conclusions, to modify the remedy,3 and to adopt the recommended Order. i No exceptions were taken to the complaint allegations dismissed by the judge 2 The Respondent has excepted to some of the judge's credibility find- mgs. The Board's established policy is not to overrule an administrative 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 reversing the findings We agree with the judge that the Respondent violated Sec . 8(axl) by soliciting grievances and implicitly promising to remedy the employees' complaints. The Respondent's entire course of conduct, urging employees to voice their grievances and stressing that "only by two-way communi- cation can we resolve any problem," its meetings with employees in which the Respondent's representatives promised to look into employee complaints and bring them to the attention of higher management, and the unprecedented 7-hour meeting at which the Respondent emphasized that problems should be handled within the, Company and without the Union, lead to the conclusion that the Respondent solicited and impliedly promised to remedy those areas of employee dissatisfaction which led the employees to seek union representation In affirming the judge's finding that the Respondent was aware of em- ployee Kistenmacher's union activities, we emphasize that at a party held in a motel room and in the presence of Kistenmacher's supervisor, Fis- chel, a discussion was held concerning the Union , and a statement was made that things would change when Kisterimacher became steward. In addition, a statement made by Western Region Area Manager Croom to an employee that the union drive would fail because there were, at most, two union supporters in the central region and none in the east (at the time, Kistenmacher was the only central region employee engaged in union activities), further supports the inference that the Respondent's management officials learned of Kistenmacher's activities Finally, the fact that Kistenmacher was discharged 4 working days after employees McAbee and Shorr were unlawfully reassigned , further supports the in- ference that the Respondent was aware of Kistenmacher's union activi- ties See Marion Center Supply, 277 NLRB 262 fn 3 (1985) 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C. § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) ORDER 955 The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Mast Ad- vertising & Publishing, Inc., Overland Park, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Stephen Wamser, Esq., for the General Counsel. John K Bestor, Esq. and Richard L. Connors, Esq. (Stin- son, Mag, & Fizzell), of Kansas City, Missouri, for the Respondent. William M. Franz, Esq., of St. Louis, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On original charges filed by the Union in Cases 17-CA- 13106-1 and 17-CA-13106-2 on 2 September 1986,' the original charge in Case 17-CA-13106 on 4 September, and the original charge filed in Case 17-CA-13148-3 on 6 October, the Regional Director for Region 17 of the National Labor Relations Board issued a complaint against Mast Advertising & Publishing, Inc. (the Re- spondent) on 19 November which alleged, inter alia, that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act), by engaging incertain de- scribed conduct, and that it violated Section 8(a)(3) of the Act by assigning employees Wylie McAbee and Joel Shorr to described work during the period extending from 28 July to 3 November and by discharging employ- ees Larry Kistenmacher and Joel Shorr on 11 August and 1 October, respectively. Respondent timely filed answer denying it had engaged in the unfair labor prac- tices alleged in the complaint. Thereafter, on 12 Janaury 1987, an amendment to consolidated complaint was issued by the Region.2 Respondent filed timely response denying subparagraphs 5(a), (b), (d), and (e) of the com- plaint as amended. The case was heard in Kansas City, Kansas, during the period 17 February through 20 February 1987. All par- ties appeared and were afforded full opportunity to par- ticipate. The General Counsel and Respondent filed briefs subsequent to the close of the hearing. On the entire record, and from my observation of the demeanor of the witnesses who appeared to give testimony, I make the following i All dates herein are 1986 unless otherwise indicated 2 The document amended par 5, subpars (a), (b), (d), and (e) of the complaint by deleting the June 6, 1986 allegation from subpar (a); changing "Mt Vernon, CA " in subpars (a), (b), and (d), to "Mt Vernon, Washington", changing "August 14, 1986" in subpar (b) to "August 15, 1986", and adding after Barbara Simon in subpar (e) "June 27, 1986, by Internal Office memo to all Premise Sales Representatives " 286 NLRB No. 99 956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION The record reveals that Mast Advertising & Publish- ing, Inc., a wholly owned subsidiary of Southwestern Bell, with an office and place of business at 500 West 110th Street, Overland Park, Kansas, is engaged in the business of soliciting yellow page advertising and pub- lishing telephone directories for a number of independent telephone companies. During the 12-month period pre- ceding issuance of the complaint, it purchased from, and sold to, customers located outside the State of Kansas products, goods, and services valued, in both instances, in excess of $50,000, and, during the same period, its gross revenue exceeded $500,000. It is admitted, and I find, that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(a)(6) and (7) of the Act. II. THE STATUS OF LABOR ORGANIZATION It is admitted, and I find, that Communications Work- ers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is engaged in the business of publishing telephone directories for independent telephone compa- nies. In return for the privilege of printing directories for such customers, it pays them fees which may amount to as much of 50 percent of the revenue it obtains by selling yellow page advertising in the directories. To sell adver- tising, it utilizes telemarketing representatives, who sell advertising by phone, and premises representatives, who sell advertising by physically visiting prospective cus- tomers. At the time of the hearing, Respondent published 452 directories for telephone companies spread throughout 42 states. It employed 38 telemarketing representatives and 95 premise representatives. Structurally, its operation was divided into three regions, i.e., western, central, and eastern. Its headquarters is located in Overland Park, Kansas. The employees involved in the instant case worked in its western and central regions. The general manager of its western region is one George Neal. Albert Wells is its general manager iwthe central region. The corporate office personnel involved in the case are: Ron Kennedy, president; Lorry Weatherson, executive director national sales; and Barbara Simon, director of human resources.3 B. The Organizational Campaign In late April or early May 1986 , the Union com- menced a campaign to organize Respondent's premise representatives by directing correspondence to premise 3 It is admitted, and I find, that the named corporate officers, the re- gional managers , area managers (named hereinafter), and Administrative Marketing Manager Carol Williamson are agents of Respondent and are supervisors within the meaning of Sec 2( 11) and (13) of the Act. representative Jim Williams, who was employed in Re- spondent's western region. Williams sent the correspond- ence to Wylie McAbee, a fellow premise representative who was employed in the northern area of the western region. McAbee then contacted Union Representatives Tom Parsons and Vic Crawley, who requested that McAbee discuss unionization with his fellow premise representatives. McAbee thereafter contacted an undis- closed number of Respondent's premise representatives assigned to the western region and a meeting with union representatives was scheduled to be held at the Execu- lodge Motel in Mount Vernon, Washington, on 11 June. On a Saturday in late May, premise representative Frank Nottoli, who had formerly been the area manager of the central area of Respondent's western region, was contacted concerning union representation of the premise representatives. On the Tuesday before Memorial Day, he telephoned George Neal, general manager of the region, and advised him of the contact. Neal asked him who had contacted him and who else was involved. Not- toli claims he replied he would rather not say to both in- quiries. Neal terminated the conversation indicating he would get back to Nottoli. Shortly thereafter, Neal called Nottoli to tell him Weatherson was going to call him. Weatherson called soon thereafter and Nottoll testi- fied he told him basically the same thing he had told Neal. Weatherson asked him whether Wylie McAbee was involved. Nottoli claims he replied he would rather not say. Weatherson ended the conversation by telling the employee "Well, thanks for informing us and feel free to call any time and keep us informed." Nottoli said he would. Union Representative Crawley met with two groups of premise representatives employed in Respondent's western region on 11 and 12 June. On 11 June, he met with employees Joel Shorr, McAbee, Dale Russell, and Frank Pape at a motel in Mt. Vernon, Washington. All four signed union authorization cards. On 12 June, he met with 10 premise representatives, including Gary MacDonald and Frank Nottoli, at a motel in Ridgecrest, California. The employees, who were all employed in the central area of Respondent's western region, all signed authorization cards. In late June or early July, McAbee contacted premise representative Larry Kistenmacher, who was assigned to Respondent's central region. After informing Kisten- macher the western region employees were involved in union activity, McAbee gave him Union Representative Crawley's phone number. Kistenmacher contacted Craw- ley around 4 July and the union agent sent him authori- zation cards to be executed by central region representa- tives. Thereafter, on 24 July, Kistenmacher held a meet- ing of premise representatives assigned to the directory canvass he was working on in his motel room in De Kabl, Illinois. Kistenmacher, Jim Eeten, Larry Gibson, Jean Malano, Sharon Koot, Doug Beyers, Joe Muetzel, and Scott Eddy attended the meeting. All but Jim Eeten and Jean Malano signed cards at the meeting About a week after Kistenmacher held the above-de- scribed meeting, the central region representatives as- signed to work the De Kalb sales campaign (canvass) MAST ADVERTISING 957 were gathered in one of the rooms of the motel having drinks and cooking steaks . Gregory Fischel, their area manager, joined the group and premise representative Larry Gibson initiated a discussion of the Union by asking Fischel if he remembered telling him that if there was a union he wanted to be a member. After Fischel denied that, Gibson commented things would change when Kisty (Larry Kistenmacher) would get to be union steward. C. Respondent 's Reaction to the Union Campaign The record reveals Respondent 's management officials learned almost immediately that the union was attempt- ing to organize its premise representatives . The com- plaint alleged, and the General Counsel contends, that Respondent, principally through the acts and conducts of its corporate officials and regional managers , engaged in numerous independent violations of Section 8(a)(1) of the Act during the organization campaign . Additionally, the complaint alleges that premise representatives Joel Shorr and Larry Kistenmacher were discharged in violation of Section 8(a)(3), and that Shorr and Wylie McAbee were assigned to less desirable work because they were known by management to the be union advocates . The acts and conduct alleged to be unlawful are developed chronolog- ically below. 1. Weatherson's late May or early June conversation with Frank Nottoli As noted, supra, in late or early June, after learning from Regional Manager Neal that Nottoli had voluntari- ly told him the Union was attempting to organize premise representatives, Weatherson telephoned Nottoli. In conversation with Neal, Nottoli had previously indi- cated he would talk to Weatherson . During, their conver- sation, Nottoli repeated to Weatherson the information he had volunteered to Neal . Weatherson then asked if Wylie McAbee was involved, and Nottoli said he would rather not say. Thereupon, Weatherson informed Nottoli, "Well, thanks for informing us and feel free to call us any time and keep us informed." Nottoli stated he would. The record reveals Nottoli was, area manager of the central area of Respondent's western region from No- vember 1984 to 15 April 1986. Despite the fact that he voluntarily contacted Respondent to inform his prior manager supervisors the Union was attempting to orga- nize its premise representatives , the General Counsel contends Weatherson's remarks during the above-de- scribed conversation violated Section 8(a)(1) of the Act. In Rossmore House, 269 NLRB 1176 (1984), the Board adopted the view that interrogation of employees is not illegal per se; that the Act "prohibits employers not only from activity which in some mariner tends to restrain, coerce or interfere with employees rights." Here, it is clear that Nottoli voluntarily discussed the then existing union situation with both Neal and Weatherson because he wanted them to know what the situation was. Al- though Weatherson asked Nottoli if McAbee had been contacted, he did not pursue the matter when Nottoli said he would rather not answer . Viewing the limited in- terrogation conducted by Weatherson in the context de- scribed, it is clear Weatherson did not seek , nor did his words contain, any threat to interfere with , restrian, or coerce Nottoli in the exercise of his Section 7 rights. Moreover, the record fails to reveal that Nottoli in- formed other employees of his conversation with Weath- erson. In the circumstances described, I find Respondent did not violate Section 8(a)(1) through Weatherson's late May or early June conduct. See Great Lakers Oriental Products, 283 NLRB 99 (1987). 2. Neal's 12 June conversation with McAbee On 12 June, Regional Manager George Neal and Weatherson were in Ridgeway, California. Wylie McAbee was working a canvass in Mt . Vernon, Wash- ington, at the time . Neal telephoned the employee and, after identifying himself, stated the CWA had been in contact with him (McAbee), or was going to be in con- tact with him. After McAbee originally denied Neal's as- sertion, he agreed it was true . Neal then asked if the Union had been in contact with him, and McAbee an- swered in the affirmative . Neal then asked when. McAbee informed him the contact had occurred the pre- vious evening. Neal then asked who was present at the meeting and who had signed cards . McAbee replied he would only speak for himself; that he did not choose to involve anyone else. McAbee contends Neal then said: "I don't understand why you guys think it is necessary to have a Union, that they would create absolutely nothing but havoc and problems and that there was absolutely no need for it and that Mast Advertising would never toler- ate nor allow a Union to come in and represent their em- ployees." McAbee responded he felt union representation was their only alternative, and he indicated Neal con- cluded the conversation by stating it was really a bunch of crap; that they would meet at Denny's in Mt. Vernon the next day at 8 a.m. and he should tell everyone to be there. Neal was not asked to give his version of the de- scribed telephone conversation when he appeared as a witness. Although he admitted he probably asked McAbee in Mt. Vernon who was pushing the Union, he denied he told him the Union would create havoc, and he denied he said Mast would never allow the Union. Noting that a very credible witness (Gary MacDonald), whose testimony is summarized, infra, attributes similar threatening remarks to Neal, I credit McAbee's version of the conversation. Paragraphs 5(a), (b), (c), and (f) of the complaint allege that Respondent, through Neal's 12 June com- ments to McAbee, engaged in unlawful interrogation, un- lawfully threatened to discharge an employee because of union activities, informed an employee that it would be futile for employees to select the Union as their bargain- ing representative, and created the impression that em- ployees' union activities were under surveillance by Re- spondent. The General Counsel concedes the record does not support the threat of discharge , and he requests permission to withdraw the allegation set forth at para- graph 5(b) of the complaint (Br. 26-27). That request is granted. It is clear, and I find, that by interrogating 958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McAbee concerning his union activities and those of his fellow employees, and by predicting that unionization would create only havoc and Respondent would never permit it, Respondent engaged in unlawful interrogation and unlawfully sought to convince an employee that the employees' selection of the Union as their bargaining agent would be an exercise in futility . Similarly, as the supervisor told McAbee the Union would or had con- tacted him, Respondent, through Neal's comment, sought to create the impression that employees' union activities were under surveillance. I find that Respondent violated Section 8(a)(1) of the Act, as alleged, by engaging in such conduct. 3. Neal's 12 June conversation with Gary MacDonald As noted, supra, Neal and Weatherson were in Ridge- crest, California, on 12 June. After they conducted a sales meeting with premise representatives assigned to an ongoing canvass at that location, Neal asked premise rep- resentative Gary MacDonald to join him for coffee at McDonald's restaurant. MacDonald recalled that Neal commenced their con- versation by calling him "Mac" indicating he felt they were friends and he could call him that. He testified Neal then told him there had been some talk of union and asked if he had heard anything about it. When Mac- Donald said, "No," Neal said if he were a representative, knowing what was happening and going on in the area, he would be interested in what the Union had to say. MacDonald indicated Neal's remarks caused him to tell him he was unhappy with some of the things that were happening in the Company, and he felt they could achieve some of the things they wanted if they got cer- tain things contained in Southwestern Bell's contract with the Union. According to MacDonald, Neal replied that everything with the Union would have to be negoti- ated through Respondent's President Ron Kennedy, and they would not be able to step right into the Southwest- ern Bell program because it took them years to acquire that and there was no way they would be able to have what they had. MacDonald's response was that if Neal were a rep going through what they were going through, why would the Union be such a detriment to the sales reps? MacDonald testified Neal said, "First of all, the company would have to play handball." Asked what he meant, Neal said that, "for example, if there was a meeting at 8:00 you had better not show up at 8:05 be- cause your job would be in jeopardy; you would go where they tell you to go and work the books they told you to work; there would be little leniency as far as ob- taining quotas, and, if you fell below the quota standard, you would be in jeopardy of losing your job or being terminated." The employee claims he then told Neal the reason for the Union was they felt it would protect them from the types of things Neal had described. According to MacDonald, Neal then said: "Well, basically the bottom line is, if you went Union, Mast Advertising couldn't afford it and they would have to close their doors." MacDonald claims the meeting ended with Neal requesting that he keep him abreast of anything that might happen, and asking him to please let him know if he heard anything about a union. Although Neal admitted he talked to MacDonald about the Union in an attempt to gain some information, he did not attempt to reconstruct the above-described conversation. Instead, he simply denied he said Mast could not afford the Union or that if it came in Mast would close its doors or play hardball. He also denied he stated Mast could not afford to pay union scale. Mac- Donald was not working for Respondent at the time of the hearing and I was most favorably impressed by his demeanor when he was giving testimony. I credit his above-described testimony. The complaint alleges that Respondent, through Neal's above-described conduct: engaged in unlawful interroga- tion (par. 5(a)); threatened closing if employees selected the Union as their bargaining agent (par. 5(d)); threat- ened more onerous working conditions if employees se- lected the Union as their bargaining agent (par. 5(g)); and instructed an employee to report on other employ- ees' union activities to Respondent (par. 5(h)). When Neal asked MacDonald what he knew about the Union on 12 June, he did not tell the employee there was a valid purpose for his inquiry, and he did not assure him he could answer or refuse to answer without reprisal. Indeed, Neal admitted he interrogated the employee be- cause there had been rumors, and his object was to learn what he could about the union situation. Noting Neal predicted dire consequences if the employees selected the Union as their bargaining agent during the conversa- tion, I find the interrogation constituted an attempt to deter MacDonald from exercising his Section 7 rights. Accordingly, I find the interrogation violated Section 8(a)(1) of the Act as alleged. Having credited fully MacDonald's version of the con- versation, it is obvious, and I find, that Neal predicted Respondent would be unable to afford the Union and, if employees selected it as their bargaining agent, Respond- ent would close its doors. In NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), the Supreme Court distin- guished employer protected speech under Section 8(c) from unprotected speech under Section 8(a)(1) stating: [A]n employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communication do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the preceise effect[s] he believes unionization will have on his company. In such case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstra- bly probable consequence beyond his control . . . . Patently, Neal's prediction was not supported by objec- tive facts. Through his prediction, I find Respondent vio- lated Section 8(a)(1) as alleged. Having credited MacDonald's claim that Neal threat- ened that Respondent would play "hardball" if the em- ployees selected the Union by punishing employees who did not appear to meetings at the time they were sched- MAST ADVERTISING uled to be held, assigning work without regard to em- ployee preference, and strictly enforcing; quotas, it is clear, and I find, that Respondent, through Neal's com- ments, threatened employees with more onerous working conditions if they selected the Union as their bargaining agent. Such conduct violates Section 8(a)(1) of the Act as alleged. Finally, by asking, at the end of the conversation, that MacDonald kept him abreast of the situation and let him know if he heard anything about a union, Neal clearly requested that MacDonald keep him informed of any union activity he and his fellow employees might engage in subsequent to their conversation. Through such con- duct, Respondent violated Section 8(a)(1) of the Act as alleged. 4. Neal's 13 June conduct On 13 June, Neal held a sales meeting with premise representatives Pape, Russell, Shorr, and McAbee at Denny's Restaurant in Mt. Vernon. After covering some business, Neal stated he understood they had been con- tacted by the Union. McAbee agreed they had. McAbee testified Neal then told them the Union would create more problems than it was worth; that they did not need it as management and the employees could work out their problems without a third parity; and that CWA was not a good union. At the end of the meeting, Neal asked McAbee where Jim Williams was. When McAbee failed to respond, Neal commented McAbee was unwilling to tell him anything. In addition to corroborating McAbee generally, Shorr claimed Neal told them during the dis- cussion that Mast had the best pay plan of any other yellow page company; that he did not think the Compa- ny could afford to pay union scale; and that the Compa- ny could go out of business and they could all be out of a job if the Union came in. Shortly before lunch on 13 June, Neal visited Shorr in the latter's room. Neal asked the employee several times if he had signed a union card, and Shorr eventually ad- mitted he had signed one. Neal then asked who else had signed cards, and Shorr told him he did not know. Shorr claims Neal then repeated what he had said at the earlier sales meeting, i.e., he could not figure out why they needed a third party to negotiate their problems; the pay plan was excellent; the Union was going to cause noth- ing by problems; and he thought the Company could not afford to have a union and there was a chance they would all be out of work. Neal was not asked to give his version of either the sales meeting or his subsequent private conversation with Shorr. As was the case with the MacDonald incident, he admitted he was attempting to gam information which would reveal who was involved with the Union on 13 June. Although he denied he indicated what he thought would happen if the employees selected the Union on 13 June, I note the threat attributed to him by Shorr is the same threat he voiced in his conversation with employee MacDonald, i.e., that Respondent could riot afford the Union and they would go out of business if the employ- 959 ees selected it as their bargaining agent.4 I credit the em- ployees. The complaint alleges that Respondent, through Neal's 13 June conduct: engaged in unlawful interrogation (par. 5(a)); threatened to discharge employees for engaging in union activities (par. 5(b)); and threatened closure if em- ployees selected the Union as their bargaining agent (par. 5(d)). Neal did not purport during his testimony to indicate he had a legitimate reason for asking Shorr whether he and other employees had signed union cards. It is clear, and I find, that through Neal's interrogation of Shorr on 13 June, Respondent violated Section 8(a)(1) of the Act as alleged. Although the complaint alleges that Neal threatened employees with discharge by predicting that Respondent would close its business and employees would lose their jobs if they selected the Union as their bargaining agent, it would appear the threat to discharge allegation is sur- plusage in the situation presented. I find that by threaten- ing closure if employees selected the Union as their bar- gaining agent, Respondent violated Section 8(a)(1) as al- leged. 5. The alleged attempt to solicit grievance with implicit promise of remedy In late June, Respondent's premise representatives re- ceived a memo dated 27 June which was prepared by Barbara Simon, Respondent's director of human re- sources. The memo, which was placed in the record as General Counsel's Exhibit 2, encouraged premise repre- sentatives to voice their "thoughts, feelings , suggestions, and employee relation issues" to Respondent manage- ment. It concluded: We urge you to freely discuss your suggestions or issues with a member of our sales management team or Human Resources. Only by good two way com- munication can we resolve any problem. Responding to the memo, alleged discriminatees McAbee and Shorr, and employee MacDonald contacted Simon at Respondent's corporate office. McAbee testified Simon informed him at the outset of their conversation she was aware they were in a union organizing campaign and she did not see why they felt there was a need for a union because she felt the prob- lems were not unsurmountable and management and the employees could work them out. When Simon then asked McAbee how he felt about that, he replied he felt CWA was their only alternative because management did not seem to be remotely concerned about the sales reps out in the field. Particularizing, he told Simon he felt their primary problem in the western region was that their regional manager, Neal, was incompetent, a liar, and an idiot. After McAbee indicated others felt as he did, Simon requested that he urge other employees to call her. She concluded the conversation by indicating if 4 Although Shorr claims the threat was voiced during the sales meet- ing and again in their private conversation, I conclude the likelihood is that the threat was uttered during the private conversation only 960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD other employees would call her she would put all the in- formation together, take it to someone else, and possibly try to set up a meeting at a later date. After talking to Simon, McAbee contacted representa- tives Gary MacDonald, Joel Shorr, Frank Nottoli, Bob Phillips, Larry Gibson, Larry Kistenmacher, and an un- named woman in the eastern region and urged them to call Simon. MacDonald testified that when he called Simon in early July he complained about excessive travel, exten- sions on markets, unobtainable quotas and bonuses, the way Neal was running the western region, and his re- ceipt of a negative commission check. After MacDonald indicated he felt the corporate offices were off limits to sales reps, Simon told him she had made notes and would discuss the matters raised with Kennedy. She promised to look into the problems, including the nega- tive commission check. Shorr called Simon around 1 July after McAbee sug- gested he do so. He recalled he told her there was a lost of unhappiness with Neal because he frequently lied to pacify his sales people; that their extensive travel was un- called for; that he had been forced to return from Jack- son Hole, Wyoming, for a weekend and go back again the next week; that commission rates kept going down, while quotas kept going up; and that he felt the Union was the answer. Shorr recalled that Simon told him she was unaware of any problems in the western region and knew of nobody who was unhappy. He testified the con- versation ended with Simon stating she had been taking notes and she would take them to the next step up; that she was surprised at the number of calls she had re- ceived.5 On 21 July Respondent met with its premise represent- atives who were employed in the central area of its west- ern region at its Victorville, California office. McAbee and Shorr, who were assigned to the northern area of the region, attended because they were working nearby. Attending for management were: Weatherson, Simon, and Western Region Manager Neal, Central Area Man- ager Bill Croom, and administrative marketing manager for the western region, Carol Williamson. All of the General Counsel's witnesses (McAbee, Nottoli, MacDon- ald, and Shorr) described to some extent what they re- called of the meeting. Weatherson and Neal also gave testimony regarding the meeting. Simon, one of the major participants, was not called as a witness. Weatherson indicated during his testimony that the meeting was held because Simon had received a number of responses to her late June communication letter and management felt they should hold a communications meeting to determine the concerns of the sales people, and answer any questions or explain any policies they did not understand.6 The meeting lasted from approximately 8:30 a.m. until 4 p.m. Simon and Weatherson were Respondent's princi- pal spokesmen. Weatherson opened the meeting and then " Simon did not testify at the hearing 6 The record reveals Respondent did not regularly send "communica- tion" memos to premise representatives, and the meeting in question was the first so-called communications meeting held with such employees turned it over to Simon. She indicated, at the outset, that management was aware of the ongoing union campaign, and she commented they were aware the law prohibited them from making any promises during the meeting. MacDonald testified, without contradiction, that Simon stated unions were a thing of the past and could not give them the support they thought it could. He further as- serted she told them what was needed was open commu- nication to let them try to handle matters within the Company so they did not need a union. It appears Simon read some of the complaints the representatives had voiced during their telephone conversation with her, and thereafter urged the employees to air any additional complaints they had. She informed them there would be no repercussions as a result of their participation in the meeting . Thereafter, Weatherson fielded most of the mat- ters raised by the representatives. Subjects raised includ- ed the mileage allowance (10 cents vs. 22 cents), dissatis- faction with Respondent's pay plan, the bad debt policy, extensive travel, scheduling, and dissatisfaction with Re- gional Manager Neal. At some point, the contractual benefits enjoyed by Southwestern Bell's premise sales- men pursuant to their union contract were contrasted with the benefits received by Respondent's employees by placing both on a blackboard. Weatherson indicated Re- spondent could not afford the package enjoyed by Southwestern Bell employees, specifically indicating it could not afford to pay 22 cents a mile, and it could not afford to pay the same per diem. He defended Respond- ent's pay plan, stating an outside source had concluded it was the best pay plan available for their type of oper- ation. With respect to pay and benefits, he observed Re- spondent, unlike Southwestern Bell, had to pay retention moneys approximating 50 percent of their revenue to the independent companies in order to get their directory business. He then used the pie illustration to make the point that only a given amount of revenue remained, and although the amount could be divided in different ways, only so much money was available. Shorr and McAbee both testified that Weatherson stated during the meeting that Respondent could go out of business and they would be out of jobs. The context in which the alleged threat was uttered was not given and the General Counsel witnesses MacDonald and Not- toli did not corroborate Shorr and McAbee. Weatherson specifically denied any such threat was uttered, the com- plaint contains no allegation that a threat of closure was uttered at the meeting, and the General Counsel did not mention the alleged threat in his brief I conclude Shorr and McAbee were merely stating a conclusion they reached rather than a specific comment made by Weath- erson during the meeting. MacDonald recalled that he requested near the end of the meeting that Respondent's pay plan be compared with those of other companies in the same business. Weatherson admitted he promised to get back to the rep- resentatives in 6 weeks or 2 months to compare their pay plan with other plans. He failed to keep the promise, and no further meetings were held with salesmen employed in the central area of the western region. Weatherson claimed no other promises were made during the meet- MAST ADVERTISING ing. McAbee and Shorr objected to extensive travel and scheduling during the meeting. Their comments concern- ing such subjects are set forth , infra. The complaint alleges, and the General Counsel con- tends, that by issuing the 27 June memo and conducting the 21 July meeting, Respondent solicited employee grievances and impliedly promised to remedy them in violation of Section 8(a)(1) of the Act. The record clearly reveals that Simon solicited the premise representatives' complaints during telephone calls which preceded the 21 July meeting, and that she and Weatherson continued to solicit their complaints during the 21 July meeting. The issue, therefore, is whether Respondent impliedly promised to remedy com- plaints which were solicited and received. Respondent contends (Br. 33) that I should find no violation because no express promises were made and, in any event, Simon clearly indicated during the 21 July meeting that Mast could not promise anything because of the union activity. The General Counsel contends Simon made promises during her phone discussions as she informed employees she was writing down their complaints and she intended to discuss them with Respondent's president, Kennedy, to see what could be done. He observes that Respondent thereafter chose to seek and convince the employees that good two-way communication would obviate the need for a union by causing headquarters personnel to con- duct an unprecedented meeting with employees in which additional complaints were suggested and explored. The Board addressed the issue before me in Reliance Electric Co., 191 NLRB 44, 46 (1971), where it stated: Where, as here, an employer, who has not previ- ously had a practice of soliciting employee griev- ances or complaints, adopts, such a course when unions engage in organizational campaigns seeking to represent employees, we think there is a compel- ling inference that he is implicitly promising to cor- rect those inequities he discovers as a result of his inquiries and likewise urging, on his employees that the combined program of inquiry and correction will make the union representation unnecessary. [Footnote omitted.] In Reliance Electric, in which the management offi- cials, who conducted meetings, phrased their replies to some of the complaints by undertaking to "look into" or "review" them, the Board concluded such cautious lan- guage, or even a refusal to commit the employer to spe- cific corrective action, did not cancel the employees' an- ticipation of improved conditions if the employees op- posed the union. Similarly, contrary to Respondent's contention, the Board has consistently held that an em- ployer does not rebut the "compelling inference" de- scribed in Reliance Electric by telling employees that it can make them no promises.7 ° See Windsor Industries, 265 NLRB 10C9, 1016 (1982), K & K Gour- met Meats, 245 NLRB 1131 (1979), Rexair, Inc, 243 NLRB 876 (1979) 961 Here, in agreement with the General Counsel, I find that by issuing a "communication" memo to employees for the first time shortly after the union campaign began; following that action by soliciting complaints with the promise that they would be considered by top manage- ment; and by thereafter causing top management officials to meet with employees to discuss the complaints, Re- spondent impliedly sought to convince employees that it would remedy their complaints through good two-way communication if they opposed the Union. I find, as al- leged, that by engaging in the described conduct, Re- spondent violated Section 8(a)(1) of the Act as alleged. 6. Canvass assignments of McAbee and Shorr, and the Shorr termination Although McAbee was hired by Respondent as a premise representative in July 1984, Joel Shorr was hired in October 1981 and remained a premise representative until he was terminated, allegedly for failing to sell suffi- cient advertising, on 30 September 1986. At the time of his termination, Shorr was second in seniority among the representatives assigned to Respondent's western region. McAbee and Shorr, who lived near each other in north- ern California, were usually assigned to work the same directories. Respondent's premise representatives received a start- ing salary of $300 per week, plus commission on sales. The premise representatives are assigned daily sales quotas when they are directed to work on any given telephone directory. A representative who meets quota in most markets will earn $85 per day in commission. In what are anticipated to be lucrative markets, the quota set may produce $100 or $110 in commissions per day. During calendar year 1986, premise salesmen who sold less than 75 percent of quota of sales for 3 consecutive months were normally issued warning letters (less than 75 percent but more than 60 percent), or letters which placed them on probation (less than 60 percent of quota). On receipt of such letter, they were normally given 60 days to elevate their sales to a minimum of 75 percent of quota. Failure to improve subjected them to discharge. The record contains considerable testimony which identified good directories and poor directories. The can- vasses which are deemed to be good are those on which the assigned premise representatives can expect to meet their sales quotas and enjoy good commissions earnings. Those which are deemed to be poor canvasses are those which are conducted in economically distressed areas, predominately agricultural areas, small towns, or "land- locked" areas, i.e., situations in which all sales must be made to entities in the local telephone directory area. Premise respresentatives assigned to work the poor can- vasses normally experience difficulty in meeting their re- quired 75 percent of quota, and they normally fail to earn significant commissions during such assignments. Carol Williamson, the administrative marketing manag- er for Respondent's western region, prepares schedules which determine the directory assignments of premise representatives working in the western region. While she documents the assignments, the record reveals Respond- ent's area managers make recommendations to the re- 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gional manager, and the regional manager then tells the administrative marketing manager who should be as- signed to given canvasses. Respondent's corporate staff do not normally become involved in scheduling premise representatives to specific canvasses. Schedules prepared by Williamson on 23 April, 5 June, 19 September, and 7 November were placed in the record and Respondent Exhibit's 5. They reveal the fol- lowing assignments: 23 April McAbee-Skagit 6/9 thru 6/29; Garberville 6/30 thru 7/13; Weaverville 7/14 thru 7/27; Patterson 7/28 thru 8/3; Livingston 8/4 thru 8/31; and Gilroy 9/1 thru 10/27. Shorr-Skagit 6/9 thru 6/29; Garberville 6/30 thru 7/13; Weaverville 7/14 thrill 7/27; Patterson 7/28 thru 8/3; Livingston 8/11 thru 8/31; and Gilroy 9/1 thru 10/27. Hadsell was assigned to work with McAbee and Shorr on the Garberville canvass; Hadsell and Williams were scheduled to work with McAbee and Shorr on the Wea- verville canvass; Williams was scheduled to work with them on the Patterson canvass; and Geraici, Hadsell, and Williams were scheduled to work with them on the Liv- ingston canvass. 5 June After working in Garberville until 7/20, Hadsell and McAbee were scheduled to work in Dayton, Oregon, the week of 7/21; they were then to work in Weaver- ville with Shorr and Williams; Williams was scheduled to work in Gilroy starting 8/4; McAbee and Shorr were scheduled to work in Gilroy commencing 8/11; and Hadsell was scheduled to work in Gilroy starting 8/18; and the 10 premise representatives assigned to the central area of the western division were scheduled to work the Livingston-Patterson canvasses during the period from 8/4 thru 8/17. The centeral area crew was scheduled to work canvasses other than the Gilroy canvass subsequent to 8/17. 5 August After Hadsell quit, Shorr was assigned to work the Dayton, Oregon canvass with McAbee during the week of 7/28; McAbee, Shorr, Geraici, and Williams were scheduled to work in Weaverville from 8/4 thru 8/17; McAbee and Shorr were scheduled to work in Patterson from 8/18 thru 8/31 and in Livingston from 9/1 thru 10/19; and McAbee and Shorr were assigned to work in Sanger from 10/20 thru 11/2. The central crew of the western region together with Geraici and Philbrick were assigned to work the Gilroy directories. 19 September No significant change. 7 November McAbee's assigned time on the Sanger Canvass was extended 2 weeks. The complaint alleges McAbee and Shorr were as- signed to work the Dayton, Oregon, and Livingston-Pat- terson directories because they were known union advo- cates, and that McAbee was given the Sanger assignment for the same discriminatory reason. a. The Dayton canvass Carol Williamson credibly testified Respondent origi- nally intended to hire two new premise salesmen who were to be assigned to handle the Dayton, Oregon can- vass. When no new representatives were hired, the can- vass was assigned to Hadsell and McAbee on 5 June. Thereafter, Hadsell quit, and McAbee's regular partner, Shorr, was assigned to work the 1-week canvass with McAbee. While McAbee and Shorr protested the assign- ment because Dayton is a small directory which caused them to travel approximately 1000 miles each way, the record reveals they suffered no losses on the assignment as Weatherson agreed that losses would be charged to the office as it was a competitive directory, i.e., yellow page salesmen who work for a different directory com- pany were working the area at the same time. Although the record reveals Weatherson may have suspected McAbee was involved in union activity prior to 5 June, the date McAbee and Shorr were assigned the Dayton account, I note Neal did not interrogate the al- leged discriminatees until 12 and 13 June. Although he learned at that time that they had both signed authoriza- tion cards, I find the record fails to reveal that Respond- ent had knowledge of their union activities when they were assigned to the Dayton canvass. Moreover, noting that McAbee was originally assigned to work the can- vass with Hadsell, and Shorr was not scheduled to work it with him until Hadsell quit, it appears Respondent had a legitimate reason for assigning Shorr, McAbee's normal partner, to work the canvass. Finally, the fact that Weatherson agreed to give them competitive directory relief on the canvass mitigates against a finding of assign- ment for discriminatory reasons. In the circumstances de- scribed,ll find the General Counsel has failed to prove that McAbee and Shorr were assigned to work the Dayton canvass for discriminatory reasons. b. The Livingston-Patterson canvasses Livingston and Patterson are small agricultural towns located in northern California. The former has a popula- tion of about 1000 and the latter approximately 5000. The Evans Telephone Company, an independent, serves both areas. In 1985, the entire crew (10 salesmen) from the central area of the western region was assigned to work the di- rectory because it was a contract year.8 The record re- veals the central area crew was under the impression that it would not be required to follow itself by working 8 Respondent's previous contract to publish the directory for a 5-year period was renewed MAST ADVERTISING the directory again in 1986. As indicated by the General Counsel witness Nottoli, in order to make a good show- ing in a contract year, a crew which thinks it would not have to follow itself will engage in sales tactics which it might not utilize if it knows it will be required to work the area the following year. The record reveals it was general knowledge throughout Respondent's western region that the sales tactices utilized by the central area crew during the 1985 Livingston-Patterson canvass would make it a difficult directory to work in 1986. When the 23 April schedule indicated McAbee, Shorr, and Williams were scheduled to work the Patterson di- rectory in 1986, and McAbee, Shorr, Geraici, Hadsell, and Williams were scheduled to -work in the Livingston canvass that year, Regional Manager Neal changed the assignments through the 5 June schedule and indicated the 10-man central area crew would work those can- vasses again in 1986. As noted, supra, Neal ascertained by interrogating McAbee and Shorr on 12 and 13 June that they were union advocates who had signed cards. Thereafter, during the 21 July Victorville meeting, both employees expressed dissatisfaction with the manner in which Neal was running the western region. McAbee, in particular, criticized Neal's scheduling ability by observing that in 1985 the central area crew traveled 5 hours to arrive at the Livingston-Patterson area, while he and Shorr, who both lived only 10-20 miles away, were dispatched' to distant points. McAbee also observed that premise repre- sentatives deserved some assignments near their homes to permit them to enjoy family life. At some point during the 21 July meeting, Neal indicated the central area crew had been assigned to Livingston-Patterson canvasses for 1986 and it was too late to change assignments. McAbee testified, without contradiction, that he told Central Area Manager Croom immediately after the 21 July meeting he was glad the central area crew had Livingston-Patter- son that year, and he was hopefull that Neal would not change the assignment and send him and Shorr there. Croom informed McAbee such reassignment was unlike- ly. By letter dated 25 July, Shorr was placed on probation because his sales achievement of 51.54 percent of quota fell short of Respondent's requirement that premise sales- men maintain 75 percent of quota. The letter indicated that his performance would be monitored for 60 days, and, if he was not selling at the rate of 75 percent of quota for the last 30 days of that period, he might be ter- minated. As noted, supra, on 5 August, although McAbee and Shorr were in Dayton, Oregon, they were assigned to work the Livingston-Patterson canvasses from 8/18 thru 10/19-a 10-week period. Although they had originally been assigned to work the canvasses together with three other sales representatives, the 5 August schedule placed them on the canvasses alone. Although corporate person- nel do not normally get involved in scheduling, Weather- son admitted during his testimony that he suggested to Neal after the 21 July meeting that McAbee and Shorr 963 be reassigned to the Livingston-Patterson canvasses.9 Both Weatherson and Neal claim McAbee and Shorr were reassigned to the Livingston-Patterson canvasses because they had requested they be given those can- vasses during the 21 meeting. Significantly, Nottoli testi- fied McAbee and Shorr made no such request at the meeting under discussion. Expanding, he indicated they would have been out of their minds to make such a re- quest because the 10 central area premise representatives had work the canvasses during a contract year in 1985, and they had been informed they would not follow themselves. 110 As indicated, supra, McAbee and Shorr were, prior to their assignment to the Livingston-Patterson canvasses, scheduled to work the Gilroy, California canvass com- mencing 4 August. Shorr testified that he had been placed on probation after working the Livingston-Patter- son canvass on a prior occasion, but he had been able to get off probation by working a major canvass. It is un- contested that Gilroy is a major canvass, and the premise representatives working that canvass consider it to be a good canvass which permits them to make money. When McAbee learned he and Shorr were assigned to the Livingston-Patterson canvasses, he contacted Weath- erson to object. Weatherson informed him he had been given the assignment because he requested it at the 21 July meeting. McAbee denied the assertion and asked if the canvass could be reassigned. Weatherson told him no. Neal testified he learned on 14 August that there was a complaint concerning one of Shorr's accounts, and that caused him to telephone Shorr's home after he was unable to reach him at the motel he was supposed to be staying at in Weaverville, California. Neal claims Shorr answered the phone and immediately broke the connec- tion. Neal claims he then called McAbee's home and asked to speak with McAbee. He indicated Mrs. McAbee asked him to wait a minute after he had identified him- self, and that she returned to the phone to say McAbee was not there. When Neal told her they both knew he was, he claims Mrs. McAbee stated she did not know what to say. Respondent's Exhibit 7, Neal's phone bill, reveals he was charged for calls to the Shorr and McAbee residences on 14 August. McAbee and Shorr testified they went from Weaverville to Redding, Cali- fornia, on 14 August and spent the night in a motel there. They furnished a motel receipt to Respondent in- dicating they checked in the Redding motel on 14 August. Redding is approximately 300 miles from Mo- desto and Turlock, the cities in which McAbee and Shorr live. When cross-examined, Shorr and McAbee could not recall whether they drove from Weaverville to Redding at the same time, or whether they dined togeth- er that night. Significantly, Shorr indicated he lives alone 9 Neal testified it was his decision and he merely told Weatherson what he intended to do 11 Although McAbee, and perhaps Shorr as well , criticized Neal's scheduling by citing the assignment of the Livingston-Patterson assign- ments to the central area crew in 1985, I accord little weight to weather- son's and Neal's claims that they understood those employees were pro- testing the fact that the central area crew had been assigned to follow itself in Livingston-Patterson in 1986 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with only a cat. He failed to explain how anyone other than himself could have answered his phone when Neal called. Although I have previously credited the named employees where their testimony and that given by Neal conflicts, I credit Neal's testimony regarding the above- described situation. On the morning of 15 August , McAbee called Neal to complain that the supervisor had called his wife a liar the night before. After he indicated he and Shorr had, in fact, been in Redding, Neal told him he knew he was lying but could not prove it. McAbee claims Neal told him he was going to fire him and Shorr the first chance he got. On 14 August, Shorr discussed his work situation with Neal. He observed he had lost money working the Dayton canvass and was looking at Livingston -Patter- son, a poor market where he could make no money, at that time . He asked if Neal could give him any help. Neal told him no. Through cross-examination of Weath- erson, the General Counsel established that premise rep- resentative Geraici was placed on probation by letter dated 3 October, but was able to bring his sales up to quota by working the Gilroy canvass from 8 September through 16 November. Similarly, the record reveals premise representative Jim Williams was issued a proba- tionary letter on 24 April, and that 45 days after the 60- days probationary period expired , he was assigned to the Gilroy canvass with a 60-day extension during which he was to pull his figures up to 75 percent of quota. On the other hand, the General Counsel Exhibit's 8, a composite exhibit which reveals discipline imposed by Respondent on premise representatives during calendar years 1985 and 1986, reveals a number of representatives were ter- minated after being placed on probation because they did not increase their sales to requisite levels. Shorr was terminated by Neal on 30 September. Neal informed him the reason for his termination was that he had failed to attain 75 percent of his quota during his probationary period. Although he had been assigned to work the Sanger canvass for 2 weeks commencing 20 October, McAbee did not actually work that canvass because he went on sick leave at the end of the Livingston-Patterson can- vasses and remained in that status at the time the hearing was held in this proceeding. McAbee testified Sanger was a poor area and there was no money to be made there. McAbee's claim was corroborated by representa- tive Gary MacDonald who testified Sanger was one of the waste markets in Respondent 's western region. He described it as an agricultural area that was "land- locked." The causation test spelled out in Wright Line, 251 NLRB 1083 (1980), is to be used to determine whether Wylie McAbee and Joel Shorr were unlawfully assigned to the Livingston-Patterson and Sanger canvasses, and whether Shorr was terminated for unlawful reasons. There, the Board stated (at 1089): First, we shall required that the General Counsel make prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. Although, as indicated, supra, I have found the record evidence does not support an inference that McAbee's and Shorr's participation in union activities was a moti- vating factor in Respondent's decision to assign them to the Dayton, Oregon canvass, I reach a different conclu- sion with respect to its decision to assign them to the Livingston-Patterson and Sanger canvasses. To sustain his initial burden , the General Counsel was obligated to show that McAbee and Shorr engaged in union activities, and Respondent was aware they had en- gaged in protected activities. Through Nottoli's above- described testimony, through the testimony of the named employees, and through the admissions made by Neal and Weatherson , he sustained that burden. Thus, it was established that McAbee was the employee who "spear- headed" the organizational drive by making the original contact with the Union and by seeking thereafter to cause premise representatives in all three of Respondent's regions to support it . Weatherson, by asking Nottoli, in late May or early June , if McAbee had been contacted, revealed he suspected McAbee was involved in organiz- ing, and Neal's 12 and 13 June interrogations of the em- ployees put any doubt Respondent management may have had at rest. Having established that McAbee and Shorr engaged in protected conduct and that Respondent was aware of their activities and sentiments , the General Counsel's next obligation was to adduce evidence which would permit an inference that their participation in protected conduct was a "motivating factor" in Respondent's deci- sion to assign them to undersirable canvasses. To accom- plish that task, the General Counsel adduced evidence which reveals that Respondent exhibited marked antiun- ion animus by : interrogating its employees and predicting that their selection of the Union as their bargaining agent would cause Respondent to go out of business; soliciting employee grievances and implying it would act on them if they rejected union representation; requesting that em- ployees keep them informed of their union activities and those of other employees ; and by creating the impression that the union activities of its employees were under sur- veillance by Respondent . Additionally, the General Counsel adduced evidence which reveals that as of 21 July McAbee and Shorr were scheduled to participate for a lengthy period in the Gilroy canvass , a major can- vass which promised to be financially rewarding, but shortly after the meeting they were rescheduled to spend lengthly periods on what promised to be difficult and fi- nancially unrewarding canvasses in Livingston-Patterson and Sanger, California. By adducing the evidence summarized above, I find the General Counsel established, prima facie, that McA- bee's and Shorr's participation in protected activities was a "motivating factor" in Respondent's decision to reas- sign them from a canvass that held the promise of reward to canvasses which promised to be difficult and financially unrewarding . Noting, the General Counsel es- tablished Shorr had been placed on probation on 27 July, MAST ADVERTISING 965 I further find the record warrants an inference that Re- spondent assigned him to the Livingston-Patterson and Sanger canvasses to increase the possibility that he would fail to attain 75 percent of his sales quota within the 60-day period following 27 July, and thus enable it to discharge him for failure to achieve his quota. Respondent defends its decision to implement the above-described reassignments by contending Weather- son and Neal were simply reassigning McAbee and Shorr to the Livingston-Patterson canvasses because they indicated during the 21 July meeting they wanted to work those canvasses because they could spend each night at home. I reject their contentions for a number of reasons. First, and perhaps foremost, I conclude Weath- erson and Neal falsely claimed the employees asked that they be assigned the Livingston-Patterson canvass during the 21 July meeting . In addition to the fact that McAbee and Shorr specifically denied they made any such re- quest during the meeting, I note that the record reveals that everyone who attended that meeting, including Weatherson and Neal , were fully aware that the central area crew had worked the canvasses during a contract year in 1985 , and that the 1986 canvasses would predict- ably be difficult and unprofitable . Moreover, McAbee, Shorr, Neal, and Weatherson were fully aware , at that time, that the Gilroy canvass, which was to occur only some 100 miles from McAbee 's and Shorr's homes, would undoubtedly be a financially rewarding canvass. Second, I note that Respondent did more than simply assign McAbee and Shorr to undesirable canvasses; they assigned only them to those canvasses thus assuring that they would experience a lengthy period of low earnings. Predictably, the assignments would enable them to dis- charge Shorr, as he was then on probation and had only 60 days to upgrade his performance. In this connection, the record reveals Weatherson acknowledged during the 21 July meeting that to succeed, a premise representative necessarily had to be permitted to participate in major canvasses as well as small canvasses. The record fails to reveal McAbee and Shorr had enjoyed participation in a major canvass during the summer of 1986, and Neal and Weatherson were fully aware of that fact. Finally, al- though the record reveals the corporate office does not normally become involved in scheduling and assignment of premise representatives to specific canvasses , Weath- erson admittedly participated in the decision to reassign McAbee and Shorr from a favorable canvass to unfavor- able ones. In this connection, as noted, supra, Neal sought to convince me during his testimony that he made the decision and merely told Weatherson what he was going to do. The record establishes , however, that Neal and Weatherson jointly made the decision. In sum, I reject Respondent's claim that it was moti- vated to reassign McAbee and Shorr from the Gilroy canvass to the Livingston-Patterson canvass because the employees requested such reassignment. Instead, I find the employees were assigned to the Livingston-Patterson and Sanger canvasses because Respondent desired to punish them for engaging in union activity. Accordingly, I find Respondent has failed to prove it would have as- signed the employees to the Livingston -Patterson and Sanger canvasses even in the absence of their participa- tion in protected conduct . Noting the reassignments vir- tually assured that Shorr would fail to attain quota during his 60-day probationary period, I further find that his termination , which occurred on 30 September, was caused by the earlier unlawful conduct of Respondent. I find, as alleged, that by assigning McAbee and Shorr to the Livingston-Patterson and Sanger canvasses, and by terminating Shorr on 30 September , Respondent violated Section 8(a)(1) and (3) of the Act as alleged. 7. The Larry Kistenmacher termination Larry Kistenmacher was hired by Respondent on 1 April 1984. He was a premise representative in the north- west area of its central region until he was terminated on 11 August 1986. His immediate supervisor was Gregory Fischel, and his regional manager was Albert Wells. In January 1986, Kistenmacher and premise represent- ative James Eeten, an area manager at the time of the hearing, were working on a Rochelle canvass. Another representative, Doug Beyers, had previously worked some of the accounts . Eeten credibly testified, when Kis- tenmacher was asked to work some of the accounts pre- viously assigned to Beyers , he told Fischel he would not work them unless they were "on recourse." 1' Kisten- macher and Eeten testified , without contradiction, that Fischel told Kistenmacher to work the accounts and assign any losses to Doug Beyers' number. Thereafter, Kistenmacher worked the canvass and when submitting sales reports, he placed losses on Beyers' number. Subsequently, in June, Kistenmacher and Eeten were working a Princeton canvass. They received a memo from the local telephone company informing them that the owner of a new business which was located near Ev- ansville, Indiana, wanted a listing and advertisement in the Princeton directory. Eeten telephoned the man and he drove 50-60 miles to Princeton and met with Kisten- macher and Eeten in their motel room . They sold him advertising. When they submitted their sales reports, each claimed one-half of the sale on their reports. Around 15 July, Kistenmacher had a telephone con- versation with Wells. He testified he informed the re- gional manager there were some deductions on his check that should not be there . According to Kistenmacher, Wells told him the deductions were there because he had improperly assigned some of his losses to Doug Beyers. Kistenmacher claims he objected, telling Wells he had simply been following Area Manager Fischel's instruc- tions. Kistenmacher testified the matter was settled by treating as office losses his losses on several accounts sus- tained during a Hillsdale canvass. 12 11 Premise representatives sustain commission losses if accounts which were in the prior directory fail to renew their accounts When accounts are worked on recourse, any losses are absorbed by the office or are charged against the representative who may have contacted the accounts and failed to make a sale or renewal 12 Wells, giving hearsay testimony , testified Fischel told him he had not told Kistenmacher to place Rochelle losses on Beyers' number Fis- chel was not called as a witness and Eeten , an impressive witness who had no reason to falsify his testimony , corroborated Kistenmacher I do not credit Wells' claim 966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About 30 July, Kistenmacher, together with Eeten and others, started on a De Kalb canvass. On 7 August, Wells called the motel they were staying at and spoke with Eeten. He indicated to Eeten that he and Kisten- macher had improperly shared on account-the Evans- ville man's account written during the Princeton can- vass-and that, in any event, the commission on that ac- count was to be taken from them because it belonged to telemarketing rather than to he and Kistenmacher.13 At some point, Kistenmacher got on the phone and vehe- mently protested Wells' decision to deprive him of his share of the commission. The same day, a Thursday, Kistenmacher, Eeten, and representative Joe Muetzel left the De Kalb canvass at approximately 9:30 p.m. and went to their respective homes for the weekend. They were not supposed to leave the canvass until Friday evening. The next morn- ing Wells called the motel they had been staying in and learned the three employees had left the canvass. Wells brought the matter to Weatherson's attention and Wells, Simon, and Weatherson decided Eeten and Muetzel should be suspended for a week when they returned to the canvass Monday, and they had grounds to discharge Kistenmacher. On Monday, 11 August, Wells, accompanied by one Don Sealy, Muetzel's area manager, and Fischel were at the Georgetown Motel when Kistenmacher, Eeten, and Muetzel arrived. Eeten and Muetzel were suspended without pay for 1 week. Kistenmacher was fired. He tes- tified the reasons given were: (1) he was not there on Friday; (2) he had put losses on Beyers' account, and; (3) his figures were down. He claims he protested, saying taking Friday off was a normal thing, in fact, other guys did it that Friday; by telling Fischel he knew the Beyers thing was not true because he told him to do it and he had two witnesses to prove it; and as far as numbers were concerned, he thought there was a policy of deal- ing with percent of quota, and he had never been given any warning. According to Kistenmacher, his protest was ignored and Sealy merely told him "that's the way it is. You're fired; I want your stuff." Little analysis of the Kistenmacher situation is neces- sary, as it is clear to me that the General Counsel estal- bished by overwhelming evidence that Kistenmacher was discharged in violation of Section 8(a)(1) and (3) of the Act as alleged. The above related facts reveal he was the central region employee who instigated the organiza- tional drive in that region. Although Wells and Weather- son denied they knew Kistenmacher was engaged in union activities at the time he was discharged, I note the instant record clearly reveals that Respondent's corpo- rate staff and other management officials engaged in con- siderable interrogation of employees to ascertain who supported the Union. Significantly, the record reveals that in mid-July, at a time when Kistenmacher was the only central region employee who was engaged in union activites, the central area manager of the western region, Croom, informed premise representative MacDonald the 13 Although a new owner placed the ad, he retained the old owner's phone number and the old owner had been sold advertising by a telemar- keting representative , rather than a premise salesman union drive was not going anywhere because there were, at most, two union supporters in the midwest and none in the east. Croom obtained his information somewhere, and I infer he obtained it from either Wells or Weather- son. Considering the Croom statement with the testimo- ny which reveals Kistenmacher's Area Manager Fischel had learned Kistenmacher might be made a union stew- ard, I find that Respondent was aware of Kistenmacher's union activities and sentiments when it discharged him. By establishing that Kistenmacher engaged in union activities; that Respondent was aware of them; by dem- onstrating Respondent's antiunion animus (as previously described); and by showing that Kistenmacher was fired after leaving a canvass for 1 day, while two representa- tives who also left for 1 day were merely suspended for a week, the General Counsel established, prima facie, that the employee's participation in protected activities was a "motivating factor" in Respondent's decision to discharge him. Having concluded the General Counsel satisfied his initial evidentiary burden, I turn to Respondent's defense. In what must be termed a self-serving memo to file, Wells allegedly set forth on 11 August the alleged rea- sons for Kistenmacher's termination.14 The first reason given is that, through June, Kistenmacher was at 60.89 percent of quota for the year, and his performance during months of February, March, April, May, and June was below the minimum standard of 75 percent. Al- though the record is filled with testimony and documen- tation which reveals Respondent's policy is to issue warning or probationary letters to employees whose sales performance might subject them to discipline or discharge, no warning or probationary letter was ever sent to Kistenmacher. Significantly, the record reveals he performed at 109.37 percent of quota in August, immedi- ately before he was discharged. He indicated he ranked second among eight representatives on the De Kalb can- vass at the time he was terminated, and that he was at 64.97 percent of quota for the year at that time. I find Respondent's claim that the employee was terminated be- cause his figures were bad to be unconvincing. The second item set forth in Wells' memo is an indica- tion that Kistenmacher was terminated because he en- gaged in forgery and theft by placing commission losses on Beyers' number. With respect to that matter, I have credited Kistenmacher and Eeten, and I strongly suspect Wells was aware when he terminated Kistenmacher that Fischel had told the employee to place the losses in ques- tion on Beyers' number. That suspicion is supported by Kistenmacher's unrefuted testimony which reveals the matter had been resolved almost a month prior to the discharge in a manner favorable to the employee. It would appear Respondent was "reaching" when it as- signed the Beyers' incident as a reason for the discharge. The third ground for termination set forth in Wells' memo is a claim that Kistenmacher violated company policy by selling to a telemarketing account. The memo states he was "uncooperative and belligerent" when the violation of policy was brought to his attention. As indi- 14 See R Exh 15 MAST ADVERTISING cated, supra, the facts surrounding; the transaction, which involved the man who had purchased a new business near Evansville, reveal Kistenmacher and Eeten were merely attempting to perform their duties as premise rep- resentatives when they made the sale in question. Signifi- cantly, the record reveals that neither Kistenmacher nor Eeten was issued a warning letter with respect to the transaction. Although the record does reveal Kisten- macher objected vehemently when he learned he would not receive the sizeable commission involved, the pretex- tual nature of the other assigned reasons for the dis- charge causes me to doubt Wells' claim that Kisten- macher's protest regarding the loss of the commission under discussion was actually a reason for the discharge. The final reason set forth for the termination in the memo was Kistenmacher's absence from the De Kalb canvass on 8 August. Noting that Eeten and Muetzel were also absent and that they were merely suspended without pay for a week, it is clear that the absence, standing alone, would not have been considered by Re- spondent to be grounds for discharge. In sum, the record causes me to conclude that Wells and Weatherson falsely claimed they were unaware Kis- tenmacher was actually involved in the union organiza- tion campaign at the time he was discharged. Noting the antiunion animus displayed by Respondent during the or- ganization campaign, I conclude the reasons assigned by Wells for Larry Kistenmacher's termination are pretexts. I find Respondent has failed to prove it would have ter- minated Kistenmacher in the absence of his participation in protected conduct. I find, as alleged, that, by terminat- ing the employee on 11 August 1986, Respondent violat- ed Section 8(a)(1) and (3) of the Act as alleged. CONCLUSIONS OF LAW 1. Mast Advertising & Publishing, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the unlawful conduct described in section III above, Respondent has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action necessary to effectuate the policies of the Act. Having found that Respondent assigned Wylie McAbee and Joel Shorr to the Livingston-Patterson and Sanger canvasses for discriminatory reasons, and that it discharged Joel Shorr and Larry Kistenmacher in viola- tion of Section 8(a)(1) and (3) of the Act, I recommend that Respondent be ordered to offer Shorr and Kisten- macher immediate and full reinstatement to their former 967 positions, without prejudice to their seniority or other rights and privileges. It is further recommended that Re- spondent be required to make whole Wylie McAbee, Joel Shorr, and Larry Kistenmacher for any loss of earn- ings suffered by them by reason of the unlawful discrimi- nation practiced against them, less interim earnings, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).1 e I shall also recommend that Respondent remove from its records any reference to the unlawful discharges of Shorr and Kistenmacher, and inform them that such will not be used as a basis for further personnel actions against them. Finally, although the General Counsel requests that a "visitatorial clause" be included in any order issued in this case, I note the Board has declined to include such clauses in cases which do not appear to pose complicated compliance problems. See, for example, Cherokee Heating Co., 280 NLRB 399 (1986). In my view, the order in this case will pose no significant compliance problems, and provisions set forth in the order which require the Re- spondent to preserve and make available to the Board described records necessary to analyze the amount of backpay will suffice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed16 ORDER The Respondent, Mast Advertising & Publishing, Inc., Overland Park, Kansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activities and sentiments of other employees. (b) Threatening to close its business if employees select the Communication Workers of America, AFL-CIO, or any other labor organization as their collective-bargain- ing agent. (c) Creating the impression that the union activities of employees are under surveillance. (d) Informing employees that selection of the Union as their bargaining agent would be an exercise in futility. (e) Threatening to play "hardball" and institute more onerous working conditions if its employees select the Union as their bargaining agent. (f) Requesting that employees report their union acti- vites and those of other employees to management. (g) Soliciting employee grievances and impliedly promising to remedy them if they reject union represen- tation. is See generally Isis Plumbing Co, 138 NLRB 716 (1962) 16 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 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (h) Assigning Wylie McAbee, Joel Shorr, or other em- ployees to unsatisfactory canvasses because they join or support a union. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Joel Shorr and Larry Kistenmacher immedi- ate and full reinstatement to their former positions, with- out prejudice to their seniority or other rights and privi- leges, and make them and Wylie McAbee whole for any loss of earnings they suffered as a result of the discrimi- nation practiced against them in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the dis- charges of Joel Shorr and Larry Kistenmacher, and notify them in writing that this has been done and that the unlawful discharges will not be used against them in any way. (d) Post at its Victorville, California, and its Overland, Kansas, facilities copies of the attached notice marked "Appendix."17 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order, what steps Respondent has taken to comply. 17 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT coercively interrogate employees con- cerning their union activities and sentiments of other em- ployees. WE WILL NOT threaten to close our business if em- ployees select the Communication Workers of America, AFL-CIO or any other labor organization as their col- lective-bargaining agent. WE WILL NOT create the impression that the union ac- tivities of employees are under surveillance. WE WILL NOT inform employees that selection of the Union as their bargaining agent would be an exercise in futility. WE WILL NOT threaten to play "hardball" and institute more onerous working conditions if our employees select the Union as their bargaining agent. WE WILL NOT request that employees report their union activities and those of other employees to manage- ment. WE WILL NOT solicit employee grievances and im- pliedly promise to remedy them if they reject union rep- resentation. WE WILL NOT assign Wylie McAbee, Joel Shorr, or other employees to unsatisfactory canvasses because they join or support a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Joel Shoff and Larry Kistenmacher immediate and full reinstatement to their former posi- tions, without prejudice to their seniority or other rights and privileges, and make them and Wylie McAbee whole for any loss of earnings they suffered as a result of their discharges. WE WILL remove from our files any reference to the discharges of Joel Shorr and Larry Kistenmacher, and notify them in writing that this has been done and that the discharges will not be used against them in any way. MAST ADVERTISING & PUBLISHING, INC.