Santa Rosa Blueprint Service, Inc.

762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Santa Rosa Blueprint Service, Inc. and Printing Spe- cialties & Paper Products Union, District Coun- cil No. 1, the International Printing and Graph- ic Communications Union, AFL-CIO. Cases 20-CA-15825 and 20-CA-16030 April 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 29, 1982, Administrative Law Judge Russell L. Stevens issued the attached decision. The General Counsel and the Respondent filed ex- ceptions and supporting briefs, and the Charging Party joined in the exceptions filed by the General Counse1.1 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 as modified 3 and to adopt the recom- mended Order as modified. The General Counsel also renewed a motion, made to the judge, to introduce additional testimony by one of the Respondent's customers re- garding the Respondent's motive in discharging employee Thacker. After examining the evidence contained in the offer of proof, we find that the testimony sought to be introduced is hearsay and, further, that the state- ments are not attributable to the Respondent or its agents Accordmgly, we deny the General Counsel's motion to reopen the record 2 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is 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 In sec III,N of his decision, the judge stated that employee Armstrong rode to a union council meeting on November 13, 1980, with fellow em- ployees Risley and Thacker and Union Steward Scheidler, whereas the record indicates that Armstrong left the Respondent's premises and rode only with Scheidler Also, in sec III,Q,7 of his decision, the judge stated that when the parties met for a bargaining session on November 17, 1980, Chris Amato, one of the Respondent's owners, objected to Armstrong's presence and refused to negotiate for that reason The record indicates, however, that Amato was not present at that session and that it was Fazio, the Respondent's representative from the California Association of Employers, who stated the Respondent's objection to Armstrong's pres- ence on the Union's negotiating team These inadvertent errors do not affect our decision 3 We agree with the judge's finding that the Respondent did not vio- late Sec 8(a)(5), (3), and (1) by instituting a more restrictive policy re- garding use of the employee breakroom In doing so, we note that al- though the record shows that on November 14, 1980, the Respondent in- formed employees that the breakroom was limited to use by employees and their immediate families, the record further indicates that when an employee asked if her boyfriend could use the breakroom she was told that he could. There is no evidence, moreover, that the use of the break- room was altered or affected in any way Thus, notwithstanding the Re- spondent's announcement, we find insufficient evidence to establish that a change in breakroom use did, in fact, occur and that the Respondent vio- lated the Act as alleged Further, in adopting the judge's dismissal of the 8(a)(3) allegation re- garding the Respondent's alleged harassment of employee Armstrong by 1. The judge found that the Respondent violated Section 8(a)(1) of the Act by interrogating employ- ees at a meeting in July 1980. We fmd merit to the Respondent's exception to this finding. The record shows that at a meeting in July 1980, following the Respondent's receipt of the Union's written request for recognition, Chris Amato, the Respondent's president and co-owner, asked the as- sembled employees—Thacker, Armstrong, Bene- dict, Risley, and Downing—what they hoped to gain from the Union. Thacker, Armstrong, Risley, and Benedict had been named in the Union's letter as members of the "employees committee." We find, based on the above, that the Respondent's in- quiry was general; that it was not accompanied by threats or promises; and that it was made to a group of mostly union supporters. In these circum- stances, we find that the Respondent's inquiry did not violate the Act. See Rossmore House, 269 NLRB 1176 (1984), enfd, sub. nom. Hotel & Res- taurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). 2. The judge found that the Respondent, in its campaign literature, violated Section 8(a)(1) by threatening employees, with job loss if they selected the Union. In so finding, the judge relied on the "plain" wording of the two memoranda in ques- tion, as well as on the fact that they were enclosed with paychecks that were distributed to employees 3 days before their regular payday. Although we agree with the judge that the Respondent violated Section 8(a)(1), we do so for the following reasons. On Friday, August 22, 1980, 4 days before the representation election, the Respondent's employ- ees received a two-page attachment along with their paychecks. This attachment consisted of two memoranda signed by Chris Amato. The first memorandum stated, in pertinent part: Contract negotiations which deadlock general- ly result in a strike. In the event of a strike, you will be called upon to picket; you lose your paychecks; you risk loss of your jobs; you will not be eligible to collect unemploy- ment insurance, and you risk loss of benefits. The second memorandum read as follows: failing to accept a doctor's excuse, we rely solely on the judge's crediting of Jones' version of the incident In adopting the judge's conclusions that the Respondent did not unlaw- fully interrogate employee Levine about July 3 or August 7, 1980, we rely on the credited denials by the Respondent's owners, Renette and Chris Amato, of employee Levine's testimony Finally, in adopting the judge's conclusion that the Respondent violat- ed Sec. 8(a)(5) and (1) by failing to notify the Union regarding changes instituted by the Respondent's insurance carrier in its medical and dental plans, we additionally rely on Pak-Mor Mfg, Co., 241 NLRB 801, 803 (1979). 288 NLRB No. 88 SANTA ROSA BLUEPRINT SERVICE 763 TO OUR EMPLOYEES: WHAT WOULD YOU DO IF THIS WAS YOUR LAST PAYCHECK? We ask you to think about this, because if the majority of employees vote for the union on August 26th, and we do not reach an agreement with the union, you may have to face up to that prospect. If we cannot or will not pay what the union wants, the union may then request that you go out on strike without any wages or benefits. No union, or any law for that matter, can make an employer agree to pay wages or pro- vide benefits that he does not want to, or cannot pay. Don't risk your future in the hands of a third party. VOTE NO ON AUGUST 26th! J. C. Amato It is well settled that employees who engage in an economic strike may be permanently replaced.4 At the same time, however, it is clear that econom- ic strikers do retain certain rights to reinstatement, as set forth in Laidlaw Corp., 171 NLRB 1366, 1369-1370, enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). The Board has held that an employer who truthfully informs employees of the possibility of being permanently replaced during a strike, but fails to explain all of the possi- ble consequences of such replacement, e.g., Laid- law poststrike rights, does not violate Section 8(a)(1). See, e.g., Care Inn, Collierville, 202 NLRB 1065 (1973). Furthermore, as the Board stated in Eagle Comtronics, Inc., 263 NLRB 515 (1982): Unless the [employer's] statement may be fairly understood as a threat of reprisal against employees or is explicitly coupled with such threats, it is protected by Section 8(c) of the Act. Therefore, we conclude that an employer may address the subject of striker replacement without fully detailing the protections enumer- ated in Laidlaw, so long as it does not threaten that, as a result of the strike, employees will be deprived of their rights in a manner inconsist- ent with those detailed in Laidlaw. . . . As long as an employer's statements on job status after a strike are consistent with the law, they cannot be characterized as restraining or co- ercing employees in the exercise of their rights under the Act. 4 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938). Id. at 515-516. 5 Thus, our inquiry here must focus on whether the alleged unlawful statement consti- tutes an impermissible threat of permanent job loss or a lawful exercise of free speech. Returning to the language of the memoranda, we find that they go beyond protected speech and constitute an impermissible threat. At first blush, the memoranda appear to contain nothing more than statements regarding the risk employees may face if they engage in an economic strike and of the rights an employer may exercise in the event of such a strike or in the course of collective bargain- ing. A closer examination, however, reveals that, although the memoranda are couched in condition- al terms such as "may" or "if," they associate a vote for the Union with three points—a loss of jobs, the employees' last paycheck, and a strike. In making these points in this manner, the memoranda have the effect of compressing events, i.e., the Re- spondent has equated a vote for the Union with the employees' last paycheck and job loss, a connec- tion reinforced by the fact that these memoranda were accompanied by the employees' paychecks on a day other than their regular payday. Viewed in this light, the memoranda do not merely enumerate the Respondent's rights; rather, they convey to em- ployees that the consequence of voting for the Union is a loss of their jobs. We thus find that, in context, the memoranda may be fairly understood as a threat of reprisal and constitute a violation of Section 8(a)(1).6 3. The judge found that the Respondent did not violate Section 8(a)(5), (3), and (1) by unilaterally implementing a more restrictive telephone policy. Although we agree with the judge's dismissal of the 8(a)(3) allegation for the reasons set forth in his decision, we find merit to the General Counsel's ar- gument that the Respondent changed its telephone policy in violation of Section 8(a)(5) and (1). The facts as found by the judge show that prior to September 2, 1980, 7 the Respondent had no written policy regarding the use of its telephone by employees for personal calls. In practice, employ- ees were permitted to use any of the Respondent's 5 Member Johansen, who did not participate in Care Inn or Eagle Comtronics, takes no position on the question whether an employer vio- lates Sec 8(a)(1) through a totally unqualified statement that it can per- manently replace economic strikers 6 See Gino Morena Enterprises, 287 NLRB No 145 (Feb. 29, 1988). Member Babson finds it unnecessary in the context of the present case to pass on the distinction drawn by the Board in fn. 8 of Eagle Comtronics. Having found that the memoranda violated Sec 8(a)(1), we find it un- necessary to determine whether Dennis Amato, the Respondent's person- nel manager, unlawfully threatened employees with termination by read- ing the memoranda to employees; the finding of such a violation would be merely cumulative and would not materially affect the Order 7 The results of the representation election, held August 26, showed four ballots for and three against the Union with no challenged ballots. The Union was certified on September 4. 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ■.. eight telephones provided that the calls did not interfere with business use and that employees re- imbursed the Respondent for any long-distance or other charges incurred. Further, there is no show- ing that any employee was admonished because of telephone usage or for abusing this privilege. On September 2, citing increased phone bills and cus- tomer complaints that the phones were always busy, the Respondent posted a notice indicating that, effective immediately, employee phone calls could be made only on one line, were limited to one call per person per day, and could be made only during the employee's break or lunch hour. In addition, by the terms of the notice, employees would be required to obtain management's permis- sion before placing any long-distance calls and were to charge all such calls to their home phones. Finally, regarding incoming calls the notice indicat- ed that a message would be taken and the employ- ee would be permitted to return the call during his break or lunch hour. In the case of a family emer- gency, management was to be notified of the call and the employee could take the call immediately. In addition to noting that the change in tele- phone policy was dictated by business necessity, the judge found that the change was insignificant and that no employee was inconvenienced by it. The judge therefore concluded that the Respond- ent's implementation of the policy did not consti- tute a breach of its bargaining obligation. Contrary to the judge, however, and regardless of the Respondent's reasons for the change, we find that the change in telephone policy "affected all employees and constituted a substantial modifi- cation of a privilege which had been an existing condition of employment." Brown & Connolly, Inc., 237 NLRB 271, 281 (1978). Further, although the Respondent is not required to permit continued un- restricted use of its telephones by employees, it may not institute changes once the Union is on the scene without consultation with the Union. Id. Ac- cordingly, we find that by unilaterally altering its telephone policy without first notifying and bar- gaining with the Union, the Respondent violated Section 8(a)(5) and (1). See also Advertiser's Mfg. Co., 280 NLRB 1185, 1190-1191 (1986). 4. The judge found that the Respondent changed employee Thacker's hours and removed her from part-time counterwork in order to harass her be- cause of her union activities. Although we agree with the judge's conclusion that such conduct by the Respondent violated Section 8(a)(3) and (1), we do not agree with his conclusion that the Respond- ent's failure to bargain about such changes in ad- vance with the Union violated Section 8(a)(5). The Board has held that a change in terms or condi- tions of employment affecting only one employee does not constitute a violation of Section 8(a)(5) when it is not contended that a respondent changed its policy with respect to employees gen- erally or refused to bargain on request over a man- datory subject of bargaining. See, e.g., Mark .I. Leach Electrical Contractors, 251 NLRB 1100, 1109 (1980); Mike O'Conner Chevrolet-Buick-GMC Co., 209 NLRB 701, 704 (1974). Compare San Antonio Portland Cement Co., 277 NLRB 338 (1985). Ac- cordingly, we conclude that the changes in Thacker's working hours and duties were not vio- lative of Section 8(0(5).8 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Santa Rosa Blueprint Service, Inc., Santa Rosa, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (c). "(a) Violating Section 8(a)(1) of the Act by promising employees wage increases if they engage in surveillance of the union activities of other em- ployees, by interrogating employees concerning how they happened to get mixed up in union orga- nizing, and by threatening employees with job loss if they vote for the Union. "(c) Violating Section 8(a)(5) and (1) of the Act by failing and refusing to notify and bargain with the Union as the exclusive bargaining representa- tive of the Respondent's employees concerning changes in the Respondent's medical and dental plans and in its telephone policy, and by failing and refusing to bargain with the Union as long as a dis- charged employee was one of the Union's bargain- ing representatives." 2. Substitute the following for paragraph 2(b). "(b) Notify and bargain collectively with the Union on request concerning changes in the Re- spondent's medical and dental plans and in its tele- phone policy." 3. Substitute the attached notice for that of the administrative law judge. 8 Member Johansen does not agree that a unilateral change does not viblate Sec. 8(a)(5) simply because it immediately affects only one em- ployee He does agree that not all such changes necessanly amount to unlawful refusals to bargain He does not find it necessary to dissent here, however, as the effects of this particular change will be remedied as a violation of Sec. 8(a)(3) and the Respondent is being ordered to bargain generally with the Union. SANTA ROSA BLUEPRINT SERVICE 765 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 ordered us to post and abide by this notice. WE WILL NOT promise employees wage in- creases if they engage in surveillance of the union activities of other employees, interrogate employ- ees concerning how they happened to get mixed up in union organizing, and threaten employees with job loss if they vote for Printing Specialties & Paper Products Union, District Council No. 1, the International Printing and Graphic Communica- tions Union, AFL-CIO, or any other labor organi- zation. WE WILL NOT harass employees through coun- seling sessions or impose more onerous working conditions on employees because of their union ac- tivities. WE WILL NOT fail or refuse, at reasonable times, on request of the Union, to meet and bargain with regard to wages, hours, and other terms and condi- tions of employment of our employees in the fol- lowing unit: All full-time and regular part-time production and maintenance employees including delivery people employed by Santa Rosa Blueprint Service, Inc., at its Santa Rosa, California, fa- cility; excluding professional, confidential, office clerical, sales and temporary employees, and guards and supervisors as defined in the Act. WE WILL NOT fail and refuse to notify and bar- gain collectively with the Union on request con- cerning changes in our medical and dental plans and our telephone policy. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with Printing Specialities & Paper Products Union, Dis- trict Council No. 1, the International Printing and Graphic Communications Union, AFL-CIO, as the exclusive bargaining representative of our employ- ees in the unit found appropriate above, with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached with the Union, embody the understanding in a written agreement with the Union. WE WILL rescind the telephone policy posted September 9, 1980. WE WILL notify and bargain with the Union on request concerning changes in our medical and dental plans and our telephone policy. SANTA ROSA BLUEPRINT SERVICE, INC. Donald R. Rendall Esq., for the General Counsel J. Mark Montobbio, Esq. (Severson, Werson, Berke & Mel- chior), of San Francisco, California, for the Respond- ent. David A. Rosenfeld, Esq. (Van Bourg, Allen, Weinberg & Roger), of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Santa Rosa, California, on June 8, 9, 10, and 11 and August 2, 3, and 4, 1982. 1 The complaint in Case 20-CA-15825 is based on a charge filed November 18, 1980, by Printing Specialties & Paper Products Union, District Council No. 1, the International Printing and Graphic Communications Union, AFL-CIO (the Union). The complaint in Case 20-CA-16030 is based on a charge filed by the Union on February 17, 1981. By order dated March 27, 1981, the Acting Regional Direc- tor for Region 20 of the National Labor Relations Board (the Board) consolidated the two cases for trial. On May 27, 1982, the Regional Director for Region 20 issued a written amendment to Case 20-CA-15825. At trial, counsel for the General Counsel, witt approval of the administrative law judge, made several amendments to Case 20-CA-15825. 2 The two cases, as amended, allege that Santa Rosa Blueprint (Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. On the entire record, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT . I. JURISDICTION At all times material, Respondent, a California corpo- ration with an office and place of business in Santa Rosa, California, has been engaged in providing blueprint and allied services, offset printings, and photographic map re- ductions and reproductions, and has been engaged in the retail and nonretail sale of drafting equipment, supplies, All dates are within 1980, unless otherwise stated. 2 General Counsel's motion in his brief to conform the pleadings to the proof is granted. 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and artists' supplies. During the fiscal year ending 1980, Respondent, in the course and conduct of its business op- erations, derived gross revenues in excess of $500,000, and purchased and received at its Santa Rosa, California facility products, goods, and materials valued in excess of $50,000 from other enterprises located within the State of California, each of which other suppliers had received products, goods, and materials directly from points out- side the State of California. I find that Respondent is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Printing Specialties & Paper Products Union, District Council No. 1, the International Printing and Graphic Communications Union, AFL-CIO is, and at all times material has been, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background3 Respondent is a small business organization, owned by Justin Christopher Amato and his wife, Renette. 4 Re- spondent was organized several years ago, and has grown steadily over the years. By 1980 the employee complement had reached approximately 17, including Chris and Renette and other supervisors. Chris is the manager of the business and is the final authority as far as all basic business decisions are concerned. Renette, who is Respondent's president and secretary, is supervi- sor of all accounting and bookkeeping functions, and is in charge of computer operations and various business machines used for accounting purposes, including cash registers. Dennis was brought into the business on July 25, 1980, as Respondent's vice president and personnel manager, in anticipation of Chris' gradual withdrawal from day-to-day operations. Carol McNulty-Jones 3 has been employed by Respondent approximately 7-1/2 years, of which approximately 3 or 4 years has been as assistant general manager. Jones supervises the white printing department, 6 does most of the purchasing, and is in charge of store operations.? Respondent's business is housed in a single building, a sketch of which is in evidence. 8 The main street entrance opens into a retail store with counters and a cash regis- ter. Customers enter the store to order and pick up prints and other items produced in the plant at the back of the store, and to purchase supplies and equipment displayed 3 This background summary is based on stipulations of counsel, and on credited testimony and evidence not in dispute 4 Generally, individuals are referred to by their last names. Exceptions are the owners of Respondent, who are referred to as Chris and Renette, and Chris' nephew, Dennis Amato, who is referred to as Denms. One other exception (Jones) is noted below. 5 This individual is referred to as Jones. Duane Jones, her husband, is referred to as D. Jones 6 This is the department that produces blueprints, which constitute Re- spondent's pnncipal product 7 The supervisory status of Chris, Renette, Dennis, and Jones was stip- ulated by counsel, and is not in dispute R. Exh. 3. and sold in the store. A small room located to the rear of the retail store is used as a breakroom for employees, and for other purposes described below. Chris, Renette, Dennis, and Jones have individual offices in the plant area. The principal production area is the blueprinting room, which contains three blueprinting machines. The building is approximately 120 feet long by 80 feet wide. The Union commenced organizational activities at Re- spondent's plant about June 1980. On July 3 James Ziol- kowski wrote two letters to Respondent. The first letter stated, inter alia, that a majority of Respondent's employ- ees had designated the Union as their collective-bargain- ing representative, and requested that Respondent agree to meet for negotiations. The second letter advised, inter alia, that certain employees constituted a part of the Union's "employees committee." The named employees were Laura Benedict, Mary Armstrong, Elizabeth Thacker, Allen Levine, John L. Simpson Jr., Robert Phelps, and Elaine Risley. On the same day, July 3, the Union filed with the Board a petition for an election. The Union's two letters were received and read by Chris and Renette, as well as by Jones and Dennis, and the possibility of unionization of the plant frequently was dis- cussed bY those four supervisors, with each other. Re- spondent was opposed to unionization, and attempted through meetings with, and letters to, employees to dis- suade them from supporting the Union. One of Respond- ent's actions was to join the California Association of Employers (Association), which assigned Lynn Fazio to work with Respondent during the union campaign and subsequent negotiations. Fazio had worked with the As- sociation approximately 3 years, and was trained and ex- perienced in labor relations. Fazio frequently met with Respondent's supervisors, principally Chris, and instruct- ed them in the "dos and don'ts" of a union organization- al campaign. She advised Respondent that since the Union's letter that listed seven "Committee" names made it appear likely that the Union was going to win the elec- tion, a low-key approach to the employees was advisa- ble. She gave Chris a packet of several letters and pieces of campaign literature used by companies in past cam- paigns, and suggested that he could lift appropriate lan- guage from them to use in his own campaign, if he so desired. The union election was held on August 26, with seven of nine eligible voters casting ballots. Four ballots were cast for the Union, and three were cast against the Union; there were no challenged ballots. On September 4 the Union was certified by the Board as the bargaining representative of Respondent's employees in the appro- priate unit. Two negotiation sessions thereafter were held, on October 2 and November 4. A third negotiation session was scheduled for November 17, but was not held. Those three sessions are discussed infra. This controversy involves two employees who were named among the Union's "Committee" members listed above. Armstrong was discharged November 17, 1980, after she used foul language on Respondent's premises. The General Counsel contends that the language was provoked by Respondent's mistreatment of Armstrong, and that use of the langnage was pretextual in order that Respondent could rid itself of a union supporter. SANTA ROSA BLUEPRINT SERVICE 767 Thacker, who is Jones' younger sister, resigned from her job after giving a 2-week notice on January 14, 1981. The General Counsel contends that 'Thacker's resigna- tion was a constructive discharge occasioned by Re- spondent's harassment of her, and that the harassment was because of Respondent's antiunion animus. Other issues involve the General Counsel's allegations that Re- spondent committed several violations of Section 8(a)(1) of the Act, and that Respondent refused to negotiate with the Union, in violation of Section 8(a)(5) of the Act. The various allegations are discussed below, seria- turn. A. Alleged Interrogation by Chris Paragraph 6(a) of the complaint9 alleges that, in July 1980, Chris interrogated employees regarding contract proposals the Union would offer if it was certified as the bargaining representative of Respondent's employees. Armstrong testified that, a week or two after the Union sent its letters of July 3 to Respondent, Chris con- ducted a meeting of employees. In attendance, she said, were Thacker, Benedict, Risley, Tanya Downing, and herself. Armstrong testified: "He asked us what we hoped to gain from bringing in the Union," to which em- ployees replied they wanted better wages and benefits. On cross-examination, Armstrong stated: Q. Didn't he ask you what you'd be expecting or what you'd be requesting in negotiations? Isn't that what he talked about? A. To me that's the same thing as what we hoped to gain. Q. Well, do you remember him saying that? A. Yes, yes. Armstrong stated that Chris never made any promise to the employees. Benedict testified much the same as Armstrong, but stated that Chris "asked us what we believed that we could receive from the Union that we weren't . . . al- ready receiving." Thacker's version of the meeting was different from Armstrong's, both in tone and substance. Thacker testi- fied that Chris seemed hurt by the fact that employees had sought union assistance. . . . And he wanted to know why we hadn't come to him as we had in the past with our problems. And he said that he felt that the shop was such a small one, there was really no need for a union, that we'd always handled everything in a family manner before, and why couldn't we have done that now, why had we gone to a third outside party when he felt that his door was always open and we could always speak freely to him. Q. And what else was said, Mrs. Thacker? A. He just said, why did we feel it was necessary to have a union, that things could be handled there. 9 In discussing "the complaint," all references are to the complaint in Case 20-CA-15825, except, as later noted, in discussing Thacker's dis- charge, which is the only violation alleged in Case 20-CA-16030 And he wanted to know what sort of things we thought we could gain that we couldn't gain by going to him Thacker said she and Risley replied that they wanted, re- spectively, more insurance and higher wages. Thacker testified that after the meeting she and Risley talked with Chris because they did not want him to feel hurt by the employees going to the Union. They explained their po- sition, and Chris "just said that he was trying to do his best and he didn't see why we had gone to the Union . . . he said, this is a small operation; the union is not a good idea for this company." Risley was a witness for the General Counsel, but was not asked about this meeting. Downing did not testify. Chris agreed that he met with the employees, but said he did not recall any conversation other than his asking if the employees wanted to discuss anything before the election took place, to which the employees did not reply. He denied asking the employees why they did not come to him before going to the Union. He said Thacker and Armstrong came to see him after the meeting, and told him their reasons for going to the Union. He said he refused to discuss the Union with them. Discussion Clearly Chris did not, as alleged, attempt to obtain from the employees their knowledge of contract propos- als to be offered by the Union if it was certified. The closest any employee came to the allegations was Arm- strong's testimony on cross-examination, but her answer to the leading question of Respondent's counsel is given no credence. She seemed to be uncertain, and the verbal exchange was ambiguous. It appeared that Armstrong re- plied to the specific question without giving it thought or concern. The relationship between Chris and Respondent's em- ployees, at least until the union controversy arose, was a close one. Thacker and Armstrong testified at length concerning their frequent conversations and contact with Chris and Renette, both at work and socially. It is appar- ent that all employees had easy access to Chris, and that they freely discussed with him any subject they desired. As a witness, Chris generally was credible. He is well along in years, and conveys a somewhat fatherly image. He is soft spoken, and obviously not a tyrannical or overpowering boss. To the contrary, he appeared to be a gentle and sensitive supervisor who worked with the ma- chines the same as other employees, and who understood the problems of rank-and-file employees. He had built up a small business, and now gradually is withdrawing from its active supervision. His memory of this conversation was not clear, but it is apparent from Thacker's testimo- ny, which seemed objective and believable on this point, that it was not highly coercive. Chris was hurt by what had happened, and was bewildered. The union matter had come on him suddenly, and he was at a loss to ex- plain it to himself. He asked some of his employees what had brought the controversy about, and what they ex- pected that he had not given. The employees recognized 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the hurt and confusion in his mind, and Thacker and Risley later pursued the conversation by trying to ex- plain to Chris that it was not his fault that the employees had gone to the Union. Thacker testified that Chris was not antagonistic; that "He was more hurt that he hadn't gone to him" Motive, however, is not an element when considering an alleged 8(a)(1) interrogation, and reliance is placed on Benedict's testimony that Chris asked the employees what they thought they could receive through a union that they already were not receiving. That questioning constituted an 8(a)(1) interrogation, regardless of wheth- er the questioning was intended as a union deterrent. 1° The General Counsel moved in his brief to amend the complaint to allege a violation of the Act in that Chris, during this conversation, solicited employee grievances. The motion is granted, but such a violation is not found. This conversation did not include such a solicitation, with an express or implied promise to remedy the griev- ances, both of which are elements necessary to support a violation. B. Alleged Threat by Dennis Paragraph 6(b) of the complaint alleges that, about August 22, Dennis threatened Respondent's employees with termination if they selected the Union as their bar- gaining representative. On August 21 a memorandum signed by Chris was written to all employees. The memorandum read in part: d. Contract negotiations which deadlock general- ly result in a strike. In the event of a strike, you will be called upon to picket; you lose your pay- checks; you risk loss of your jobs; you will not be eligible to collect unemployment insurance, and you risk loss of benefits. The memorandum was attached to a memorandum dated August 22, reading as follows: TO OUR EMPLOYEES: WHAT WOULD YOU DO IF THIS WAS YOUR LAST PAYCHECK? We ask you to think about this, because if the majority of employees vote for the union on August 26th, and we do not reach an agreement with the union, you may have to face up to-that prospect. If we cannot or will not pay what the union wants, the union may then request that you go out on strike without any wages or benefits. No union, or any law for that matter, can make an employer agree to pay wages or provide benefits that he does not want to, or cannot pay. Don't risk your future in the hands of a third party. VOTE NO ON AUGUST 26TH! J. C. Amato 10 Autoglass & Upholstery Co., 264 NLRB 149 (1982). Both memoranda were given to employees with their paychecks on Friday, August 22." On August 22 Dennis met with employees, including Armstrong, Thacker, Benedict, Risley, Downing, Levine, and Simp- son. Several matters were discussed, and Dennis read to the employees, the two memoranda quoted above. Armstrong testified that at the meeting Thacker said she did not believe Chris wrote the memoranda, and Dennis said Chris did. Dennis asked if the employees wanted to say what they expected from the Union. Dennis said the Union would cost the employees money, and Armstrong replied, in effect, that if so, that was not Dennis' business. Dennis was red-faced, trembling, and enraged, and the pupils of his eyes were enlarged. Thacker corroborated Armstrong. Benedict, Risley, and Levine were witnesses for the General Counsel, but they were not questioned concern- ing this subject. Simpson was not a witness. Dennis testified relative to the meeting, stated that it lasted no more than 5 minutes, denied that he was angry or upset, denied that anything was said about the two memoranda referred to above, and denied that he asked the employees what they hoped to gain by bringing in the Union. Dennis said he asked the employees if they - wanted to discuss anything, and there was no response. He testified that Armstrong asked if the employees could receive pay raises and increased benefits, and he replied that such matters could not be discussed during the union campaign. He said he asked the employees if they understood the Union could not promise the employees benefits or pay increases. Discussion Quite a lot of testimony was elicited from the General Counsel's witnesses concerning whether Chris actually wrote the two memoranda he signed, 12 but that matter is irrelevant to the issues. Fazio gave Chris material from past campaigns at other employers' places of business, which she said he could use as a guide for his own cam- paign, and Chris used that material in preparing the two memoranda. Chris was not knowledgeable concerning union campaigns; as far as the record shows, this was his first experience with a union. It appears unlikely that Chris intended to violate the Act by threatening employ- ees, and it appears that he believed he was engaging in proper manner when he drafted the memoranda, but those facts also are irrelevant to the issues. The memo- randa are coercive, in that they clearly imply job risks in the event the employees voted for the Union. The word- ing of the memoranda is plain on the face thereof, and that working was emphasized by enclosing the memoran- da with paychecks handed to employees on an acceler- ated date (Friday rather than the following Monday). The fact that the two memoranda were received by em- ployees is not in dispute. It is found that the memoranda " Paychecks usually are given to employees on a Monday. 12 Thacker testified that, initially, she did not believe Chris wrote the memoranda. It appeared from her testimony that the memoranda were in- consistent with her knowledge of Chris' character Chris testified that the memoranda, but not the words, were his. SANTA ROSA BLUEPRINT SERVICE 769 constituted a threat of job loss in the event of unioniza- tion, in violation of Section 8(a)(1) of the Act. As far as the meeting is concerned, Armstrong gener- ally was not a credible witness, and her description of Dennis' physical appearance seemed exaggerated and un- likely. As a witness, Dennis was soft spoken and low keyed. His testimony is not entirely credited, but on this issue he appeared calm, objective, and convincing, and he is credited. Levine was not questioned concerning this issue, but he testified that during the month he worked with Dennis the latter was not excitable; he was "even keeled give or take." 13 Thacker generally corroborated Armstrong, but that fact is not conclusive. Both employ- ees are alleged discriminatees, and no other witness present at the meeting corroborated either Armstrong or Thacker. In view of all the circumstances, including Dennis' testimony and denials of statements attributed to him, it is found that this allegation of the complaint, as it is worded, was not proved. C. Alleged Threat by Jones Paragraph 6(c) of the complaint alleges that, about August 22, Jones threatened Respondent's employees with the loss of a wage increase because of their protect- ed activity. Armstrong testified that shortly after the August 22 meeting of Dennis with employees, discussed in section III,B, above, she talked with Jones "and she said that she had been trying to get a schedule of raises and at this point things were just out of her hands." Jones testified that she talked with Armstrong, but that the conversation was limited to the two memoranda signed by Chris, discussed above. Jones denied Arm- strong's testimony concerning pay raises. Jones is credited, and no violation of the Act is found as far as this issue is concerned. D. Alleged Promise by Dennis Paragraph 6(d) of the complaint alleges that, about November 5, Dennis promised Respondent's employees that they would receive a wage increase if they engaged in surveillance of the union activities of other employees. Respondent customarily gave employees merit pay raises on an unscheduled basis. Generally, Chris decided when to give the raises, but he usually conferred with the supervisor of the employee involved. Sometime prior to November 4 Chris determined that Risley should be given a merit increase, and that subject was brought up at the second negotiation session with the Union, held on November 4. The Union refused to concur with Risley's raise, and Ztolkowski stated that if any employee was to be given a raise all employees must receive raises. On November 5 Dennis talked with Risley, and told her about the discussion concerning her pay increase the day before at the negotiation session with the Union. Risley testified concerning her conversation with Dennis, and stated that he said "the only way I would be able to get a raise is if I would tell them what union activities were It is apparent, as discussed infra, that Dennis is capable of anger, he is not always "even keeled" when provoked going on in the white printing department." In expand- ing her testimony after reading her pretrial affidavits, Risley stated that Dennis wanted to know what Arm- strong and Thacker were doing with the Union "wanted to know if they were making mistakes and what type," and "after they were fired, I would be able to have my raise." Risley said she replied that she would not do what Dennis asked, and that she related to Thacker and Armstrong her conversation with Dennis. Jones testified that Risley told her on one occasion that she was late returning from lunch because she had been talking with Dennis about her raise, and she thought Dennis tried to bribe her. Jones said she later asked Dennis about it, and Dennis replied that he "abso- lutely" did not try to bribe Risley. Thacker and Armstrong testified that Risley told them about Dennis' conversation. Generally, their testimony was much the same as what Risley related, but there were some differences. Dennis denied Risley's testimony concerning the al- leged offer to give Risley a raise if she spied on Thacker and Armstrong, and he also denied Risley's testimony concerning the proposed firing of Thacker and Arm- strong. Discussion It is apparent that, if Dennis stated to Risley what Risley related, Respondent would have violated Section 8(a)(1) of the Act as alleged. The Board commonly holds that the Act is violated when an employer attempts to persuade an employee to spy on protected activities of other employees.14 The only question is whether Dennis made the offer attributed to him. Dennis generally was a credible wit- ness, but not always so. At times he seemed to be eva- sive and less than candid. He appeared to be a low-keyed individual, and his answers generally were promptly given to questions. However, Risley was more credible on this issue than Dennis, and Dennis' denial of the state- ments of Risley did not have the ring of truth about them. Risley is credited, and it is found that Respondent violated the Act as alleged. E. Alleged Threat by Dennis and Jones Paragraph 6(e) of the complaint alleges that, about Oc- tober 10, Dennis and Jones threatened employees that Respondent was keeping records on their work perform- ances in order to retaliate against the employees because of their protected activity. On October 10 Dennis called Thacker into his office for a counseling session. At some time prior to that ses- sion, Dennis had written down several incidents and mat- ters that he wanted to discuss with Thacker. The session was a lengthy one, which is described in detail, infra." 14 See, e g, Crown Cork & Seal Co., 255 NLRB 14 (1981) 15 Dennis testified that he used his notes while talking with Thacker in an earlier counseling session on October 3 Thacker testified that she never had a counseling session with anyone, including Dennis, poor to October 10. This matter is discussed below In any event, the facts that Dennis had made some kind of notes and used them m discussion with Thacker are not m dispute. 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thacker testified that shortly after her session with Dennis she talked with Jones. Armstrong was present. Thacker testified that she said to Jones "Do you realize that Dennis is keeping a list on us, a black list, a list of our mistakes and errors. And she said, yes, she did." Thacker stated that she talked with Jones a few days later and expressed her concern about the list, and she explained to me further that Santa Rosa Blue was trying to keep better records, formalizing their operation, and that she had been asked to keep a record of our mistakes, our errors at work, and Dennis was also keeping a record. Thacker said she asked Dennis on two occasions for a list of the complaints against her, but that she never received a list. Dennis denied that Thacker ever asked him for the list of matters he talked with her about. He said he talked with Thacker on October 10 concerning matters that had arisen that involved her after their first session on Octo- ber 3, but he did not testify to any use of a list on Octo- ber 10. Jones testified that she did not attend any counseling session with Thacker in October, but that Thacker asked her, in the presence of Armstrong, "Are you aware that Dennis is keeping records?" to which she replied, "Yes, of course I am aware he is keeping records. He is the personnel manager." Jones denied she told Thacker that Dennis and she were keeping a formal record of employ- ee mistakes, and she said she was not aware that Thacker ever asked for a list of complaints against her. Armstrong testified that on October 10 Thacker came into the shop on her day off "and asked Carol [Jones] if she was aware that Dennis Amato was keeping records on the employees. And she said yes." Fazio testified that it was her understanding that in the past Jones, Chris, and Renette had kept informal notes relating to problems with employees, and: Well, when I first met with them, I advised them that they should have a formal system of record keeping involving personnel files for everybody and in just keeping any kind of pertinent documentation for a number of reasons. Q. And one of the reasons at least would have been in case there was any NLRB litigation, is that correct? A. Mr. Rendall, in my position, I was always playing devil's advocate, and any kind of worse contingency was always in the back of my mind, but I didn't necessarily convey that to the employ- er. Q. Well, did you give them reasons why they should be keeping these notes? A. Yes. I told them that they would never really know when they would have to recall any kinds of sets of facts for any reason. It was really clear to them, especially in unemployment insurance cases where they didn't have records that they were sorry that they didn't have, for example. Discussion Prior to the union campaign, Respondent's shop was run very informally, in a rather paternalistic manner. Chris was the boss, but he worked with his hands as much as rank-and-file employees. He talked with, occa- sionally socialized with, and often sat in the breakroorn with his employees. He had not been involved with any union in the past, and the union movement of the em- ployees came as a shock to him. Being without expertise in the field of labor relations, he became a member of the Association. Fazio was assigned to assist Respondent, and one of the things she advised was that Respondent's employee recordkeeping and its business practices be tightened up. Respondent did not want its business orga- nized, but it was apparent from the number of signatures on the Union's July 3 letter sent to Respondent that it probably was going to be organized. Fazio's advice thus was logical; the facts of corporate life clearly indicated that the formerly lax way in which Respondent was ad- ministered should be changed. There is no basis for infer- ring anything sinister in Fazio's advice. Fazio was an ex- tremely impressive witness. She was prompt and certain in her answers, and seemed completely at ease during all her testimony. She no longer works for the Association. Her entire presentation seemed truthful and convincing, and she is credited. It is found that Fazio's advice to Re- spondent on this issue was not objectionable under the Act. It is further found that Respondent's actions in car- rying out Fazio's advice were not taken in an effort to undermine the Union; rather, they were taken only for sound business reasons, as suggested by Fazio. The question remains whether Dennis and Jones, re- gardless of the legality of Fazio's advice to Respondent, threatened Thacker as alleged. It is found that they did not. The various items of Respondent's complaints against Thacker are at the heart of this controversy. Re- spondent contends that the items were Thacker's short- comings as an employee. The General Counsel contends that all the items are pretextual, and were used to harass Thacker in order to force her to quit her job. Those items are discussed below and as noted, some are not, and some may be, pretextual. In any event, this allega- tion of the complaint involves a threat. It does not in- volve the items themselves. Thacker's testimony on this issue was broader than that of Jones and Armstrong, and it seemed overdrawn. It seems to fit too perfectly the mold required for a violation. Thacker referred to a "black list," "mistakes," and "errors," none of which was testified to by Jones or Thacker's fellow employee, Arm- strong. The latter two witnesses only said that Jones told Thacker that records were being kept on employees, which was factual and which was being done pursuant to Fazio's advice. So far as Dennis' use of written matter when he talked with Thacker is concerned, he credibly testified that he was talking from notes he previously had made. No "list" was established at trial, but assuming some kind of list did exist, it is apparent that every item on it was firmly fixed in Thacker's memory. She testified at length, and in detail, relative to every grievance Dennis voiced at his session with Thacker. Receipt of a list of those matters would add nothing to the controversy. Jones was a credible witness, and her testimony, as supported by that of Armstrong, is accepted as accurate. SANTA ROSA BLUEPRINT SERVICE 771 This allegation is found not to be supported by the record. F. Alleged Threat by Renette Paragraph 6(f) of the complaint alleges that, about July 3, Renette threatened that employees would be dis- charged for engaging in union activities. Armstrong testified that, on July 3, she was in the em- ployees' lounge (breakroom) and she overheard Renette talking with Chris in the latter's office approximately 10 to 15 feet away. Armstrong testified, "I heard Renette talking to Chris and she said to him let's get rid of them all, let's just get rid of them all, we don't have to put up with this." Chris testified that the Union's letter of July 3 was brought to him someplace in the store by Renette, who showed him the letter. He said she wanted to discuss the letter, but he "shut her off' because it did not seem ap- propriate to drop everything and discuss the letter at that moment. He stated that Renette said nothing about get- ting rid of all the employees, or anything to that effect. R.enette testified that she usually picks up the mail in the front office just after lunch, and takes it to her room to open it. She said that on July 7 she received the Union's two letters of July 3. She said she took the let- ters to Chris for him to see, but he replied that the letters required more attention than he could give them at that time, and that they would discuss them after work. She denied stating that Respondent should get rid of the em- ployees, or that they did not have to "put up with this." Discussion Based on the nature of events and the use of the break- room, discussed infra, it seems as though some other wit- ness would have overheard the alleged remarks, if they were made. Only Armstrong testified, and she was not a convincing witness. Chris and Renette are not credited entirely, but they are credited on this issue. The letters are dated July 3, and at the top of one letter is typed "Certified Mail Return Receipt Request- ed." The letters are in evidence (G.C. Exhs. 10 and 11), but the return receipt is not in evidence. It seems unlike- ly that Armstrong could have overheard any conversa- tion about the letters on July 3, the date they bear. Ren- ette credibly testified that she received the letters on July 7, and Armstrong was absent from work that day. Notice is taken of the fact that certified letters require more time for delivery than ordinary mail—usually, ap- proximately 1 day longer. No violation of the Act is found, so far as this issue is concerned. G. Alleged Interrogation by Renette Paragraph 6(g) of the complaint alleges that, about July 3, Renette interrogated employees concerning their union activities. Alan Levine was employed by Respondent from Janu- ary 1980 until August 25, 1980. He did various jobs, in- cluding pickup and delivery of merchandise, and janitori- al work and stockroom chores, hut his principal job was pickup and delivery. Levine testified that, approximately July 3, Renette "wanted to know who had started this union, and I said I wasn't sure that she should ask Eliza- beth Thacker." Renette testified that she does not recall ever talking with Levine about who started the Union, and she denied ever asking any employee who started it. She said she never had any such conversation with any employee. Discussion Levine's testimony was ambiguous, in that the conver- sation itself was not related. The testimony as to what Renette "wanted" is a conclusion. Levine was not with- out credibility, but Renette was a credible witness. Possi- bly Renette said something in violation of the Act, but there is an inadequate record to support the finding of a violation. No violation is found. However, although not alleged in the complaint, Chris interrogated Levine in July or August. Chris testified that he asked Levine "how he got mixed up in that mess." The context of the discussion, and the record, makes it clear that the "mess" Chris referred to was the union organizational effort. An interrogation in violation of Section 8(a)(1) of the Act is found. H. Alleged Interrogation by Dennis Paragraph 6(h) of the complaint alleges that, about August 22, Dennis interrogated employees concerning whether they were going to vote in a Board election. Levine, who left Respondent's employ August 25,16 testified that he talked with Dennis approximately 1 week prior to the union election, which was held August 26: He had a list. He was going down his list. He started off with—he wanted to know if I was still going to vote in the election. Dennis denied ever talking with Levine concerning the Union or the union election. Discussion Levine testified on cross-examination that, as of the time he talked with Dennis, he already had given notice to Respondent that he was going to quit his employment. He quit the day prior to the election. Levine signed the union letter of July 3, which was sent to Respondent and which Dennis had seen. That letter stated, inter alia, that Levine was "part of the em- ployees committee for the Union." It is clear that Dennis knew Levine would not be voting in the union election, and that, in any event, Levine would be supporting the Union even if he did vote because he was part of the employees' committee for the Union. Under such circumstances, it seems un- likely that Dennis would interrogate Levine. There was 16 Chris credibly testified that Levine advised him of the latter's resig- nation Chris said Levine told him he was seeing a psychiatrist, and "he wanted to get out of that turmoil and he was leaving" 772 - DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no reason for such an interrogation. Dennis' denial of the interrogation is credited. This allegation is not supported by the record. The General Counsel also argues that this conversa- tion created the impression of surveillance of employees' union activity. No violation is found, in view of Dennis' credited denial. I. Alleged Creation of Impression of Surveillance by Dennis Paragraph 6(i) of the complaint alleges that, about August 22, Dennis created the impression that there was surveillance by Respondent of the union activities of Re- spondent's employees. Levine testified that during his conversation with Dennis approximately 1 week prior to the union election, discussed in section III,H, above, Dennis stated that "he knew which way I was going to vote in the election." Levine also testified that Dennis questioned him about giving Armstrong a ride in one of Respondent's delivery vehicles, and "wanted to know where we were going or what we were doing." Levine testified that he had given employees rides in Respondent's vehicles in the past. On cross-examination, Levine testified that he gave Arm- strong a ride while he was making deliveries for Re- spondent, and when Armstrong was on a work break. Dennis denied telling Levine that he knew which way Levine was going to vote. Discussion For reasons discussed in section III,H, above, it ap- pears unlikely that Dennis would talk about how Levine was going to vote, because Levine already had told Re- spondent he was going to quit his job on August 25, prior to the election. Dennis' denial of this part of the conversation is credited. As far as Armstrong's ride is concerned, there is no evidence that Dennis' questioning of the circumstances was improper. Levine was on company business, and Armstrong's work duties ordinarily did not involve trips into town. This matter was not pursued at trial by either side, and it appears that, assuming a conversation took place as Levine said, Dennis' inquiry was related to Re- spondent's business, rather than any personal business of Armstrong. This allegation is not supported by the record. J. Alleged Interrogation by Chris Paragraph 6(j) of the complaint alleges that, in late August, Chris interrogated employees concerning their union activities. Levine testified that he talked with Chris about August 7 or 8: He wanted to know why I had just come in late. He wanted to know if I had special privileges, and he said that he knew that Mary Armstrong had started the whole union thing. I said, no, that Elizabeth Thacker had. Chris denied ever talking with Levine about Arm- strong or other union supporters. Discussion The testimony on this issue is too disjointed, cryptic, and vague to find a violation of the Act. Chris' denial of Levine's testimony is credited. No violation of the Act is found, as far as this issue is concerned. K. Alleged Institution of a New Medical and Dental Plan Paragraphs 6(k) and (1) of the complaint allege that about June 15, 1981, Dennis instituted a new medical plan and a new dental plan for Respondent's employees. The fact that Respondent did not discuss, notify, nor bargain with the Union relative to changes in its provi- sion of medical and dental coverage of employees is not in dispute. - By letter dated April 30, 1981, Respondent's medical and dental insurance carrier notified its association mem- bers that some changes in its plan had been instituted. The letter stated, inter alia: FROM: The Trustees, Association Group Insurance Trust TO: All firms Participating in The Trust's Compre- hensive Medical and Dental Plans On April 15, 1981, representatives of your asso- ciation and the other associations which sponsor the Association Group Insurance Trust met in Chicago to review plan experience for the past year and make plans for the coming year. The letter outlines the effect of our actions at this meeting on your firm and its employees, and explains the reasons for these actions. By memorandum dated June 15, 1981, Dennis notified Respondent's employees of the changes, nearly all of which were financial in nature and several of which were improvements over the former plan. Dennis' memorandum stated, inter alia: TO: All employees FROM: D. A. Amato SUBJECT: Comprehensive Medical & Dental Plan Plan Changes Effective June 1, 1981 Realizing the importance of our group insurance plan to your peace of mind and well-being, the best possible protection has been and will continue to be provided. It is through Santa Rosa Blueprint's par- ticipation in the Association Group Insurance Trust, which covers thousands of employees, that this ex- cellent benefit plan is made available. The annual renewal rates (premium) and a number of benefit improvements went into effect June 1st. The benefit improvements are listed below and will be included in a newly revised certificate- booklet which will be completed in the near future. In the meantime, the revised plan is described on the enclosed "Outline of Benefits." Dennis, who formerly was employed in the administra- tion of insurance policies, credibly testified that the plan SANTA ROSA BLUEPRINT SERVICE 773 changes were instituted solely by the carrier, and that ac- ceptance thereof was mandatory for all members who desired to retain the coverage. . Discussion As of the date of Dennis' memorandum to Respond- ent's employees, the Union was the Board-certified bar- gaining representative of those employees, but a contract had not been negotiated. Also, as of that date, Respond- ent was refusing to negotiate with the Union, as dis- cussed infra. Insurance coverage of employees is a negotiable item, and the Union was entitled to receive notice of any changes in the current medical and dental coverage of Respondent's employees. Whether Respondent instituted the changes, and whether the changes were mandatory, are matters that are irrelevant to this issue. Any change could have an effect on the Union's bargaining position, and on the Union's relationship with Respondent's em- ployees. It is found that, by failing to notify the Union of changes in its medical and dental plans, Respondent vio- lated Section 8(a)(5) and (1) or the Act. This matter is discussed further infra. L. Interrogation by Chris Although it is not alleged in the complaint, Chris testi- fied that on the day Levine was leaving Respondent's employ, i.e., August 25, he asked- Levine how he hap- pened to get mixed up in the union organizing. That in- terrogation was in violation of the Act. Levine still was an employee, with access to other employees, when the question was asked. Clearly it is a coercive question, re- gardless of the fact that it occurred on Levine's last day of work. A violation of Section 8(a)(1) of the Act is found, as noted in section 111,0, above. M. Disciplinary Probation of Thacker :Paragraph 7(a) of the complaint alleges that about Oc- tober 15, 1980, Respondent placed Thacker on probation because of her protected activities. As noted above, Thacker first was employed by Re- spondent in April 1977, partially through the recommen- dation of Jones, her sister. Since her employment Thacker had worked at many jobs, but for the most part she operated blueprint machines. For some months, until approximately October 10, 1980, she worked several hours each day at the counter in the salesroom, where she took orders from customers, made sales, operated the cash register, and did other tasks. In the past, Thacker received periodic wage increases. Initially the raises were each 6 months or so, but the time interval increased as the term of her employment lengthened. 'Thacker was instrumental in talking with employees about working conditions at Respondent's shop, com- mencing in May 1980, and in organizing the employees. She met with employees concerning the Union, met with the union representatives, and solicited signatures on union authorization cards. She also attended employee meetings held by Dennis and Chris, who presented Re- spondent's views relative to employee organization. A subject that is at the core of this controversy is Thacker's conduct at work and, particularly, her work relationship with Jones. Thacker's version is that there was no real problem between her and Jones; that they had frequent discussions at work concerning specific jobs, but that they did not argue. Thacker testified, how- ever, that her relationship with Jones began to deterio- rate in August 1980. Jones, Chris, Dennis, Renette, Risley, Levine, and employee Shelly Sheets contradicted Thacker, and testified that Thacker frequently at work, and sometimes in a very loud voice, yelled at and argued with Jones. Chris testified that, in April 1980, he talked with Thacker and reviewed "some of the problems that we had" with her in the past. He further testified, "I think I told her that the time had come for her to decide that she would work for Carol [Jones] or she would not and if she would not, she'd have to leave." Chris said Thacker's conduct did not improve, and approximately 1 month later he discharged her, on a Friday. On Monday, Chris said Thacker returned and tearfully requested an- other chance, to which he agreed. Chris said Thacker protested that the confrontations were not her fault; she said they were Jones' fault. Jones testified that she had problems with Thacker prior to the organizing cam- paign, on an almost daily basis. She said Thacker had dif- ficulty taking instructions, and repeatedly argued with Jones in front of other employees about how to do jobs. She said Chris told her in early May that he wanted to fire Thacker because her argumentative conduct was be- coming intolerable; that Jones did not disagree, and Chris fired Thacker on a Friday; that on Monday Chris told her he had reinstated Thacker on the latter's plea, provided her behavior improved. Levine testified that Thacker talked with other employees "75 percent of the time," and that she seemed to feel that she was above the work as she had been there a long time. Sheets worked for Respondent from December 1979 through May 9, 1980, as a white printer and, sometimes, as a counter clerk. Sheets testified that, for several months during Sheets' employment, Thacker "would yell a lot" at Jones, on a daily basis, when Thacker disagreed on how things were being done in the shop. Sheets said she never observed Jones yelling back at Thacker. Sheets testified that, approximately 1 month before she left Re- spondent's employ, she overheard Chris talking with Thacker: I overheard Chris saying to Elizabeth that she had been causing problems, especially between her and Carole, causing all of the employees to be get- ting upset and just making everybody miserable. And he warned her that if she did not calm down, that she would be let go. After that, Sheets said, Thacker told her about the con- versation with Chris, and said "Chris had warned her that if she did not calm down, he would be letting her go." Sheets said Thacker thereafter calmed down "just for a few days." Sheets testified that she once thought about quitting her job because of Thacker's conduct, and 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Thacker's arguing caused much anguish on the part of all the employees. Fazio testified that during Thacker's probationary meeting of October 15 Chris stated to Thacker "you recall that in May, of this year I was about to fire you. And I relented at that time, do you recall?" to which Thacker replied, "Yes." In addi- tion to denying any problems between herself and Jones, Thacker denied that Chris fired her (over the weekend) in May, or that there was any similar incident involving her tenure with Respondent. Thacker testified on rebut- tal that Chris reprimanded her in April or May .aobut her voice being too loud and said he would not put up with it anymore, but that nothing else was said on that sub- ject." She denied Chris' testimony that she was fired, and that she tearfully requested her job back, and she denied Sheets' testimony relative to this matter. 'Thacker's denials simply are not believable. The testimo- ny of Chris, Fazio, and Sheets, and of the various wit- nesses named above" relative to Thacker's conduct on the job is overwhelming, particularly in view of the strong credibility of Fazio and Sheets. It is found, based on the foregoing and much supporting testimony in the record, that for many months prior to October 1980 and possibly for a longer period of time Thacker was a con- tentious, argumentative employee who was loud and boisterous on the printing room floor, who frequently challenged her supervisor, Jones, who was warned and later fired over a weekend because of her poor conduct, and who was returned to her job on a conditional basis (reversion of her conduct). There is no evidence that Thacker was involved in any union activity when she was warned in April, or when she was temporarily fired in May. If she was engaged in such activity, there is no evidence that Chris knew of it. Thacker testified that she first started discussing the possibility of organizing em- ployees in May, and that the first meeting for that pur- pose was held in June. Clearly, the April warning and the May discharge were not related to any protected ac- tivity of Thacker. A second problem involving Thacker was her relation- ship with Dennis, who came to work June 25 in an au- thoritative position and who had been selected to take over from Chris as active manager of Respondent. The record is replete with testimony concerning clashes be- tween Thacker and Dennis. Thacker contends that Dennis almost always was wrong in his actions against her, and that he intentionally harassed her. The principal incidents between the two are discussed below. It is clear that Thacker and Armstrong resented Dennis because he had come to work inexperienced in the business but nonetheless in an elevated management position. Thacker was the senior printer and Dennis was superior to Thacker's immediate supervisor, Jones. Jones credibly testified that Thacker talked with her several times about Dennis, and complained that she did not like to deal with him; that she did not like Dennis. Risley credibly testi- fied that there was a "personality clash" between Thacker and Risley, and that she knew Thacker "didn't 17 Thacker testified during her examination m chief that she never had been counseled by any supervisor prior to October 10, 1980. 18 witnesses Risley and Levine were called by the General Counsel. care for" Dennis. Thacker acknowledged on cross-exam- ination that she stated in writing to state unemployment officials that there was a "definite personality conflict" between her and Dennis, but she testified that the con- flict did not interfere with her work performance. She further testified that "just about everyone" in the shop did not get along with Dennis." Commencing approximately midyear 1980, Thacker and Jones began to have lunch together on a frequent and fairly regular basis. Those lunches continued until approximately October. For the first few months only Thacker and Jones attended, but Jones' husband, Duane Jones, ate with them almost daily beginning the latter part of August, when Duane started a project for Re- spondent, doing some carpentry and rehabilitation work. The testimony of the three attendees is consistent in that they agreed that the luncheon conversations consisted mostly of family and minor matters, but it is inconsistent relative to union matters. Thacker testified that she and Jones frequently discussed the Union and its attempt to organize Respondent; Respondent's dislike of such orga- nization; possible results of organization (more formal working conditions); and related subjects. Jones dis- agreed, and testified that, although Thacker frequently broached the subject of the Union and organization of Respondent's employees, Jones refused to discuss such matters because Chris had advised her in July that she was not to discuss them with employees. Jones denied the statements concerning the Union and related subjects attributed to her by Thacker. Duane Jones corroborated his wife, as far as the lunches he attended were con- cerned. Beyond the differences in testimony on this sub- ject, a more basis apparent inconsistency is the matter of the luncheon meetings themselves, regardless of what took place during the meetings. It is clear that Thacker repeatedly and often challenged Jones and argued with her on the job, yet she had lunch with Jones almost daily for several months. The only explanation of this apparent inconsistency is that it did not reflect a general dislike of the two individuals for each other, but rather, indicated they could not work in harmony. The record indicates that the inability to work together originated with Thacker, and not Jones. Further, Thacker testified that her personal relationship with Jones began to deteriorate in August. The cause of that deterioration is not appar- ent, but its existence is apparent. As far as the conversa- tions at the meetings are concerned, Jones' testimony was more convincing than that of Thacker. Jones ap- peared to be a forthright, soft-spoken, and truthful wit- ness, and no witness of the many who testified indicated that Jones was tyrannical or difficult to deal with. It seems unlikely, in view of her instructions from Chris and Fazio, and in view of her knowledge that Thacker was on the "union committee," that Jones would engage in conversations on the broad scale of union inquiries and statements attributed to her by Thacker. The first negotiation session held by Respondent and the Union occurred on October 2. Present were Fazio, 19 As far as the record shows, the only employees who did not get along with Dennis were Thacker and Armstrong. ' SANTA ROSA BLUEPRINT SERVICE 775 Dennis, Ziolkowski, Thacker, and Armstrong. Fazio called Ziolkowski on the telephone and expressed con- cern that so many of Respondent's printers would be there (two or three, plus two helpers), but Ziolkowsksi was noncommittal. At the session, Fazio gave the Union information it previously requested, and several matters were discussed, including work rules and a timeclock. The Union's proposals for a contract were reviewed in some detail, and before closing the session, a date was es- tablished for the next meeting. The meeting was longer than Dennis expected, and during the meeting he was upset and angry. It was agreed that further meetings would be limited to half days, in order to minimize busi- ness disruption. During the session Thacker interjected herself into negotiations several times, and Dennis told her Ziolkowslci was the union representative, and he would deal only with Ziolkowski.2° Dennis' first counseling session with Thacker occurred on October 3, approximately 5 weeks after the union election and approximately 4 weeks after the Union was certified by NLRB as the bargaining representative of Respondent's employees. 21 Thacker contends there was no reason for the session, other than to harass her be- cause of her union activity. She testified that the reasons given by Dennis for the meeting were pretextual, that Dennis yelled at her during the session and frightened her, and that Dennis refused to let her defend herself. Dennis testified that he met with Thacker because of dis- cussions he had with Jones about Thacker's work per- formance and conduct, and because of his own observ- ance of Thacker on the job. He said "that I felt we needed to discuss and I asked her to have a talk." The various matters involved, or alleged to have been in- volved, in this meeting are enumerated below. I. Thacker testified that Dennis told her "I was hard to get along with, that I was just . . . nobody liked me, that I was difficult to work with.. , . I was . . . always stirring up trouble' Dennis testified that he told Thacker she was quarrelsome, loud, and more of a problem than a help to her supervisor (Jones). Dennis testified that Thacker protested, and said he was reprimanding her only because of her union activity, which he denied. Dennis credibly testified, and Thacker denied, that he re- minded Thacker that she had lbeen earlier warned by Chris. On rebuttal, Thacker acknowledged that she "oc- casionally" questioned Jones' work instructions, and "suggested" alternative ways to do work she had been instructed to do. Thacker also acknowledged that on several occasions her voice was unduly loud and that she 20 The facts stated m this paragraph are taken from the testimony Of Fazio, whose credibility appeared to be compelling Her version of the session is accepted over that of any other witness, to the extent that there is any testimonial discrepancy E.g , Thacker and Armstrong testified that Dennis made a threatening gesture toward Armstrong with his note tablet. Fazio and Dennis credibly testified that they saw Armstrong ap- parently trying to read Dennis' notes, and he slid them across the table toward Armstrong, stating that she could take a good look. Further, the testimony of Thacker and Armstrong that they were not allowed to speak at the meeting is given no credence 21 Thacker testified during her appearance in chief that this meeting was on October 10, but she later testified on rebuttal and did not deny that the meeting occurred on October 3, as Dennis testified. The October 3 date is accepted as accurate tried to lower it, but she also testified that it was neces- sary in the shop to talk above a normal voice because of the noise made by the printing machines. Thacker testi- fied on cross-examination that Dennis told her about cus- tomer complaints concerning her loud talking, and that she did not feel Dennis was wrong in reprimanding her about it. This cause of complaint by Respondent was not pre- textual. As found above, Thacker already had been warned by Chris in April and May about her unaccept- able work conduct. The testimony of Dennis, Chris, Jones, and Risley that Thacker continued to be loud and argumentative about work assignments after May is cred- ited. 2. Thacker testified that Dennis reprimanded her be- cause she had misquoted the cost of a job to a customer, $49 instead of $3.25. The fact that there was an incident at the sales counter when a customer was angry and complained about the cost difference is not in dispute. However, Thacker contends that she did not misquote the job; she testified that she quoted the job at $3.25 for the negative, and approximately $50 for the print. Thacker testified that Jones told her such incidents had occurred before. Thacker testified that Dennis never gave her an opportunity to explain the incident. Dennis testified that when the customer complained Thacker told the customer she was sorry, and then walked away. Dennis said Jones then took over the problem. Jones was present during the incident, and she denied telling Thacker that such incidents had occurred before. If there actually had been a misquote by Thacker be- cause of negligence or inattention, possibly it would have been cause for reprimand. However, the customer did not testify, and the incident was not fully litigated, nor did Respondent ever investigate the matter, as far as the record shows. Dennis did not discuss the matters with Thacker at any time other than October 3. It appears, therefore, that this is a complaint without much sub- stance. Unless Respondent knew or had reasonable basis to infer that Thacker had erred, any mention of the inci- dent other than as prelude to an inquiry, would not be proper. It appears, therefore, that this incident was no more than padding Respondent, and was not justified as a reprimand in and of itself. That fact does not however, necessarily taint the entire counseling session. Further, because an incident had in fact occurred, it was not im- proper for Dennis to mention the matter to Thacker. As far as the record shows, the incident resulted in no loss to Respondent, and no reprimand of or disciplinary action against Thacker. 3. Thacker testified that Dennis accused her of calling a fellow employee, Kevin Woller, 22 a snitch. She said Dennis stated at the session that Woller had come to him and complained that Woller was not permitted by Thacker to be in the breakroom In explaining the inci- dent at trial, Thacker said there was a discussion in the breakroom about drugs, and she stated, "I didn't think it was an appropriate conversation for work." Thacker continued, "John Simpson must have thought I meant 22 Sometimes spelled in the transcript as Wohlert and Waller. 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kevin and said Keven's cool; I've talked to him about drugs before. And that's how Kevin was drawn into it." Thacker said at trial that Kevin could have taken her remark to mean that Kevin was being "ostracized." Thacker said she tried to explain the incident to Dennis, but that he did not permit her explanation. Dennis testified that he related to Thacker two com- plaints he received from Woller. One was the incident concerning the breakroom, and the other was that Thacker was rude to customers. Woller did not testify. The incident and the possible effect it could have had on Woller are acknowledged by Thacker. Clearly such an incident was a proper subject for a counseling session. Dennis denied that Thacker was not permitted to explain the incident, but there is no explanation shown in the record as far as the counseling session is concerned. The incident is not pretextual, but the manner in which it was handled indicates the possibility of animosity or, at least, high-handedness toward Thacker. 4. Thacker testified that Dennis complained to her concerning the extension of credit to a customer who had not been approved for credit. Renette testified that in the fall of 1980 Respondent had 1200 to 1500 customers, some of whom had been au- thorized credit on customer application, after a credit check had been made. She said Respondent has a strict credit policy, and that credit reference cards are kept on all customers near the cash register. If no card is in the file, no credit can be extended. On one occasion Thacker extended credit to a custom- er who had not been authorized credit. She talked with Jones about the matter, and later a credit application for the customer was filed and approved. Respondent in- curred no monetary loss as a result of the transaction. Thacker testified that Jones told her not to worry about it, that it had been taken care of. Jones denied so stating to Thacker. Jones stated that Thacker was not warned about the incident. There is no dispute concerning the fact that the inci- dent occurred. Thacker does not deny that she made the error, but she contends that it was of little, if any, signifi- cance and that its mention by Dennis was for the sole purpose of harassing her. This was not an incident that was improper for the counseling session, and whether Thacker was given an opportunity to explain is immateri- al—there was nothing to explain. Jones' denial of condo- nation of the error is credited. 5.Thacker testified that Dennis accused her of making mistakes on invoices that were causing extra work for Renette. Renette testified that a new electronic cash register was installed in February 1980, and that it was more so- phisticated than the old one. She said it was more com- plicated to operate than the old one, and that some train- ing and practice were necessary in order to operate it correctly. She said everyone who used it occasionally made errors and had to be trained, but that, although she made every effort to train Thacker, she could not get Thacker on the right track. She said Thacker repeatedly used the register in such manner that invoices had to be voided, and that the errors made each day's cash recon- ciliation difficult and time consuming. She said she asked Jones, who was in charge of the counter, to work with Thacker on the problem, and she reported the matter to Chris on a couple of occasions, but little improvement was forthcoming. Jones generally corroborated Renette on this subject. Thacker acknowledged that she made errors on the cash register, but minimized the number of errors and the results thereof. She said she frequently had occasion to flip through the invoices, and that she made no more errors than others who used the register. Thacker testi- fied in effect that this matter was of little, if any, concern to Respondent and was just a pretextual complaint. Much testimony was devoted to this subject, including detailed descriptions of the register and its use. However, the principal complaint, that Thacker's errors caused ad- ditional and excessive work for Renette, credibly was ex- plained by Renette. Thacker's minimization of the prob- lem did not have the ring of reliability about it. Her con- tention that it was a "so what" type of error is not con- sistent with business practice and procedures. Clearly, this was a proper subject for the counseling session, and equally clearly, Thacker was well aware of Respondent's concern with her errors on the register—she said she flipped through the invoices on several occasions, and made mental note of the fact that her errors were not in greater number than those of other employees. That tes- timony concerning the number of her errors credibly was contradicted by Renette and Jones. 6. Thacker did not testify relative to any other matters discussed at the session, but Dennis credibly testified that he talked with Thacker about her not having called in on a day she was absent, and told her she always should notify someone in management if she was going to be late or absent. He also talked with her about an incident that occurred approximately a week earlier when Thacker, in front of a customer, hollered loudly to Jones who was 25 feet away, and asked if Dennis, who was standing next to Thacker, could cut a vinyl board for her. Dennis credibly testified that he considered that to be improper office behavior, and that he so informed Thacker. 2 3 Clearly, these two matters were proper subjects for the counseling session. 7. Thacker testified that Dennis told her "because of your attitude and because of your mistakes, you are now banned from the counter; you can no longer work the front counter; you are 100 percent of the time back into the whiteprinting department. . . . It was the end from that day forth, white printing only." Dennis denied this testimony by Thacker The matter of Thacker's being removed from counter work is discussed below. Dennis' denial of discussion of the matter on October 3 is credited. 1. October 3 counseling session The fact that in the past Respondent customarily had not held counseling sessions with employees is irrelevant, 23 Thacker acknowledged this incident, said she later apologized for it when Dennis reprimanded her about it, and said Dennis appeared not to accept the apology. SANTA ROSA OLUEPRINT SRVICE 777 if there was good reason to hold this one with Thacker. It appears there was good reason. It is quite clear that Thacker was a problem employee. As noted above, almost every employee who testified on this subject, other than Thacker and Armstrong, agreed that Thacker habitually argued with her supervisor, Jones, and carried out her work duties in a very loud manner. Further, the session of October 3 cannot be considered in a vac- uum—it is related to an earlier session between Chris and Thacker, when the latter was reprimanded, warned, and temporarily fired because of her frequent and repeat- ed confrontations with Jones, and other matters. It is noted that no witness testified that Jones initiated any ar- guments with Thacker, talked in any tone other than a normal one, or was rude or abrasive. Further, there is no evidence that Jones threatened any employee because of union or any other activity. Jones' appearance on the stand supported the impression gained from the testimo- ny° of witnesses that she is a pleasant, soft-spoken, and thoughtful supervisor. Dennis credibly testified that he called the counseling session after conferring with Jones concerning the problem, and after personally seeing some of the things he talked with Thacker about. It is found that the session was a result of Thacker's continu- ing problems at work, unrelated to Thacker's union ac- tivity. Thacker and Armstrong were two of the prime movers in the union movement at the shop, and Re- spondent was aware of their position at the forefront of union activii y. As, however, of October 3, the Union al- ready had won the election, and one amicable negotia- tion session had been held on October 2. That negotia- tion session had gone well, and a second meeting had been arranged. Certainly Thacker's counseling session could have no effect on the union election and the Union's later certification. Further, seven employees voted in the election, and there is no evidence of general harassment of employees—only Thacker and Armstrong contend they were harassed. In support of her allegation of harassment, Thacker testified that Dennis was very angry during the counsel- ing session, that he pounded the desk and yelled at her, and that he refused to let her speak. Dennis denied all those allegations, and testified that Thacker was loud and angry. It appears likely that there is some truth in the testimony of both witnesses, as far as anger is concerned. The record generally points to a quiet, "even-keeled" Dennis and to a loud and assertive Thacker, but it also points to a "personality clash" between the two, which would not be conducive to a placid discussion on an ob- jective plane It reasonably can be inferred, which it is, that the meeting was an acrimonious one between a rela- tively new and inexperienced supervisor and an employ- ee who resented and disliked him 24 Thacker's testimony that Dennis did not let her talk during the session is given no credence. Clearly, more was involved than Dennis' merely calling the session, reading a list of com- plaints, and dismissing Thacker. 24 Thacker testified that, as of Octobei 10, Jones had not harassed her, but she said Jones did harass her on a couple of minor occasions thereaf- ter. As far as the complaints themselves are concerned, there is no evidence to warrant a conclusion that they were pretextual or so trivial as not to warrant their being brought to Thacker's attention. Even though some of them previously had not been the subject of confronta- tion between Respondent and Thacker, their inclusion within a general aggregation related to work perform- ance was not precluded. Dennis was in the process of as- suming management of Respondent; Fazio recognized, and recommended, that the operation needed to be tight- ened up; Thacker was a problem employee. The union election was history, and a counseling session reasonably was required.25 Dennis credibly testified that, during the week after October 3, Thacker continued in his presence to have loud arguments with Jones and, on one occasion, was calmed down by Jones in the breakroom following an outburst at the customer counter when instructions were given by Jones to Thacker. Dennis further testified that he observed Thacker on a couple of occasions wasting time by carrying on personal conversations with custom- ers, and that Jones reported to him two or three occa- sions when she had problems with Thacker. Dennis said he talked with Thacker on October 3, told her that he and Jones had discussed the matter with Chris, and ad- ,yised her "that there were too many problems on a daily basis that occurred between her and her sister and that being on probation for a period would allow her to focus on the problems and hopefully correct them." Thacker replied that "this was being done because of her union activities," which Dennis denied. Fazio credibly testified that Chris related to her his concern about Thacker, and said he was prepared to fire her, but that Fazio recommended a meeting with the Union, and a probationary period. Chris agreed, and Fazio arranged a meeting with the Union. The meeting was held on October 15. Present were Dennis, Thacker, Ziolkowski, Chris, and Fazio. Some witnesses disagreed with some parts of her testimony, but to the extent there are disagreements, Fazio is credited." Fazio testified: We started off by Chris speaking first and he said Elizabeth, you recall that in May of this year I was about to fire you. And I relented at that time, do you recall? And she answered yes, I do. And he went on to say that based on the fact that that was the end of the rope for her then that he was just exasperated with her behavior and felt that it was getting to be intolerable, that he felt that termina- tion was warranted but that I had suggested this meeting and that probation was the way to go now 25 Thacker testified that a couple of days after the counseling session, she talked about it with Jones, who told her that Jones did not agree with the way Dennis was handling the union members, and "give him enough rope and he'll hang himself" After considerable leading by coun- sel for the General Counsel, Thacker testified further on this subject Carol said that Dennis and Chris were so against the union that we weren't getting anywhere, things were just going to get tougher and tougher for Mary and myself. And we just made what was a comfortable situation before, the way it was not, bad. Jones denied this testimony by Thacker Jones' denial is credited. 26 it is noted that Ziolkowski was present throughout the tnal, but he did not take the stand as a witness. 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and they wanted to just discuss all of her behavior, get it all out in the oppn and make sure that her be- havior would change so that everybody could work happily together. . . . . Dennis and Chris reviewed a series of problems that they had been experiencing with Elizabeth. I acted more or less as a moderator and Dennis pri- marily did the talking describing what he felt were problems in her behavior. There were some in- stances that he listed specifically. The meeting lasted several hours, and all the problems enumerated above, relative to the counseling session of October 3, were discussed in detail. There was one addi- tion to the enumerated problems, 27 which was an al- leged mistake made by Thacker in taking inventory. Thacker acknowledged making the mistake, but she said it was a minor one, frequently made by several employ- ees who take inventory, and that the entire matter was by Jones as being of no moment. In any event, Thacker testified that every item Dennis discussed with her on October 3 was discussed in detail at the October 15 meeting, and that no additional items were discussed Oc- tober 15. Further, Thacker acknowledged that she was given an opportunity October 15 to present her position on all items, which she did. She said Ziolkovvski also spoke freely, and did his best to defend Thacker. Thacker testified, however, that Ziolkowski was of little help because he did not know about the various prob- lems that were involved and, further, that Ziolkowski told her some concessions would have to be made to Re- spondent in order to secure a contract. She said every- one was calm except Dennis, who was angry and raised his voice, and Ziolkowski, who also raised his voice. Fazio and Ziolkowski worked up a draft of a probation- ary agreement reading as follows: A probationary period shall commence on Oct. 3 and shall continue until Jan 1 at which time the ee's performance shall be reviewed. If the performance had been satisf. then the probationary period shall be reduced to a verbal warning. If the ee's perform- ance has not been satisfactory, then the probation shall continue for another 2 months, (or until March 1). During the probationary period the ee shall be subject to termination for a repetion [sic] of past in- fractions or for cause. This agreement shall in no way be precedent setting.28 The length of the probationary period was negotiated by Fazio and Ziolkowski, with each side modifying its origi- nal suggestion. Fazio read the draft aloud and gave the draft to Thacker and Ziolkowski, both of whom read it. Fazio asked if the draft was satisfactory, and: 27 On her examination in chief, Thacker named a few other complaints that Respondent voiced at the meeting concerning het work, and she de- scnbed them. They were minor in nature, and detailed discussion of them would add nothing to this decision 28 This draft is in Fazio's handwriting The difference in pen color cre- dibly was explained by Fazio, and is irrelevant to the issue Jim said well, I think that perhaps we're not x eally specific here about repetitions of past infractions. I said well we've been here a long time elaborating each one of these things. I don't want to go into a whole lot of detail on this. How about if I just cap- sulize what these things are that we had been talk- ing about and list those as part of this. And he said fme and we agreed that I would type it and bring it to the next meeting which was a negotiation meet- ing that was scheduled and at that point we would put formal signature to it. Thacker asked what kind of misconduct could cause her discharge, and Fazio replied: Elizabeth, if you do any of the things that we had already talked about here again, if you repeat those, that's cause for termination, or if you do something else that is what we consider for cause—for in- stance, and I mentioned walking out with the cash register or having some kind of a problem with a severe lateness or not calling in, something that's severe, that's cause for termination in itself. We didn't elaborate on too many examples but I do re- member specifically the one about the cash register. The second negotiation session was held on November 4. In attendance were Fazio, Ziolkowski, Thacker, Arm- strong, and Dennis. Fazio handed Thacker's proposed probation agreement, which Fazio had typed, to Ziol- kowski. The agreement read: It is agreed by the parties that as a result of cer- tain unsatisfactory behavior on the part of Ms. Thacker (outlined below), Ms. Thacker shall be put on probation. The probationary period shall com- mence on October 3, 1980 and shall continue until January 1, 1981, at which time Ms. Thacker's per- formance shall be reviewed by the parties. If the performance has been satisfactory, then the probationary period shall be reduced to a verbal warning. If the performance has not been satisfactory, then the probation shall continue for another two (2) months, or until March 1, 1981. However, during the probationary period, Ms. Thacker shall be sub- ject to termination for cause or for a repetition of any of the following past infractions: Violation of company charge account rules Rude or abrasive treatment of co-workers, su- periors of customers Loud or excessive talking Incorrect processing of work orders or in- voices Failure to perform work as directed Inability or refusal to accept comment or di- rection from superiors It is further agreed that Ms. Thacker's duties at the retail counter are discontinued or curtailed, at the direction of the Employer. SANTA ROSA BLUEPRINT SERVICE 779 It is further agreed that this agreement shall in no way establish a precedent for the method or content of any future disciplinary matters. Ziolkowski read the document, said it "looks fine," and handed it to Thacker, 1,yho said that was not the agree- ment they had reached. Fazio handed to Thacker the rough draft she prepared at the meeting of October 15 for comparison. Thacker and Ziolkowski refused to sign the typed version." The parties then discussed the fact that Chris was withdrawing from active management of the business, and Respondent's desire to move Doug Simons into management. The parties then discussed contract proposals. Thereafter, Respondent announced that Thacker's hours were being changed from 7:30 a.m. to 4:30 p.m., to 8 a.m. to 5 p.m. The reason given was the desire to have supervision over Thacker because she was being put on probation and, also, Thacker did not have a key to the shop and sometimes had to wait in order to get in. 30 Although the record is not entirely clear, it appears that as of the end of this session Re- spondent considered Thacker to be on probation in ac- cordance with Fazio's typed version of the agreement of the parties, and that Thacker held a similar belief. 2. Thacker's probation The General Counsel argues that Thacker was placed on probation because of her union activity. Respondent argues that it was because of Thacker's work conduct and perfomance. There appears to be a basic dichotomy in the testimo- ny of Thacker and, to a lesser extent, Armstrong. Thacker contends that Respondent, whose ruling hand at times relevant was Chris, was strongly opposed to her, and harassed her on an almost daily basis, to the point of frequent tears, probation, and ultimately resignation. She contends that Chris changed from a friendly, tolerant co- worker prior to the union movement, to a cool and dis- tant supervisor after the union movement began. Yet, her testimony is laced with kind words for Chris, both before and after the union movement. A few days after he learned of the union letter to Respondent, Chris met with Thacker and some other employees, and although Chris testified in an ambiguous manner concerning the dale when be learned Thacker was a leader of the orga- nizational effort, it seems likely that he knew of it about the time of the meeting. He said on direct examination that his knowledge was obtained sometime between July 1980 and January 1981. Relative to Chris' meeting with employees, Thacker testified that Chris was not angry, and that "he was attempting to be reasonable and settle it without a union in there." She said Chris never threat- ened employees. Some facts are quite clear, as noted supra. First, Thacker was not a completely satisfactory employee in 29 Thacker explained at tnal her reasons for not signing the final typed agreement. She satd the two documents were not the same There is some difference (e g, the counter work), but that fact is irrelevant to any issue The basic question is the reason for Respondent putting Thacker on probation. 9° This change of hours is alleged to be a violation of the Act, and is discussed mil a that she was loud, frequently engaged in confrontations and arguments with Jones, and frequently resisted in- structions given by her supervisors. It appears that she was competent as a printer, and that she worked the counter part time in a generally satisfactory manner," but those facts are not determinative of any issue. Second, there is much credible testimony that Thacker did not get along well with some employees of Respond- ent, but there is no testimony that Jones did not get along with all the employees, other than her problems with Thacker and, to a lesser extent, Armstrong. It is ap- parent, partially from Thacker's testimony, that the prob- lems between Thacker and Jones stemmed from Thacker, who frequently resisted following instructions. Third, Thacker personally disliked Dennis, and frequent- ly engaged in confrontations with him Fourth, Thacker was warned in April, and temporarily fired in May solely because of her work problems and primarily be- cause of her loud voice and her arguing with Jones. Fifth, Thacker's counseling session of October 3 was based on her work conduct. That session was well after the union election, and was the day after a successful ne- gotiation meeting between Respondent and the Union. The principal question is whether Thacker was put on probation because of her union activities. Although Wright Line32 principles are applied to a discharge case, probation is an analogous situation, and the same reason- ing is appropriate. The question then would be presented whether, even though Respondent may have resented Thacker's union activities, she would have been placed on probation regardless of those activities. That question must be answered in the affirmative. Chris already had told Thacker in May that he had reached "the end of the rope" with her, and he rescinded his weekend discharge only after her tearful appeal for reconsideration. Thacker's union activity became apparent soon thereaf- ter, and when Fazio entered the picture in July, she in- formed Respondent of the do's and don'ts of union activ- ity. With that Union in the strong position it obviously was, by reason of employees' signatures on the letter sent to Respondent, it was logical for Respondent to proceed against Thacker's further unsatisfactory conduct in a formal manner. Fazio suggested probation, and that was a logical procedure to follow. Although, as discussed above, the reasons for probation are not pure since they contain one or two instances of gilding the lily, the basic reasons were well grounded. Thacker briefly had re- sponded to her counseling in April and May, but she soon reverted to the same conduct that gave rise to that counseling. The fact that Dennis, and not Chris, first counseled Thacker and later was instrumental in her pro- bation interviews is immaterial. Dennis was a corporate 21 Thacker was described by the General Counsel's character witness Keith Dennis, Grover Lewers, and Fredenck Bhss, three of Respondent's regular customers, as courteous, helpful, and efficient Respondent's wit- nesses cited some examples of what they believed to be rude behavior toward customers by Thacker. Thacker said she never was rude to a cus- tomer. It is found that, generally, Thacker was a satisfactory counter em- ployee as far as her relations with customers were concerned. The inci- dents of her allegedly rude conduct have been assigned the weight due them in making findings. 22 Wright Line, 251 NLRB 1083 (1980). 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD officer, and was assuming command of Respondent. Clearly, Thacker resented Dennis, both personally and because of her having been both counseled and put on probation by him. This allegation is not supported by the record. N. Armstrong's Discharge Paragraph 7(b) of the complaint alleges that, about November 17, 1980, Respondent discharged Armstrong because of her union activities. Armstrong first began working for Respondent as a printer on February 4, 1980, under Jones' supervision. She became active in the union movement in May. That activity included talking with other employees, attending meetings with other employees, and soliciting signatures for union authorization cards. It is not clear when Re- spondent learned of Armstrong's union activity and her position at the forefront of the union movement in Re- spondent's shop, but it is clear that Respondent knew of that activity sometime in midyear. Armstrong was discharged on Monday, November 17. She contends that she was fired because Respondent was opposed to her union activity and wanted to retaliate against her. Respondent contends that she was fired solely because of her use of foul language on Friday, November 14. The basic facts relating to the incident that gave rise to Armstrong's discharge are not in dispute, although a few pertinent facts are disputed. The incident com- menced November 12 or 13, when Armstrong asked Jones if she could leave work early the afternoon of Thursday, November 13, in order to attend a 'union council meeting. Jones gave her permission to do so. Armstrong's hours were 8 a.m. to 5 p.m., and she asked to leave at 4 p.m. rather than 5 p.m. The person with whom Armstrong planned to ride to the meeting came to the shop prior to 4 p.m., and Armstrong left prior to 4 p.m.33 Armstrong rode to the meeting with Risley, Thacker, and Russell Schiedler, a union shop steward who worked at another shop. At some time prior to 4 p.m., Dennis wanted to talk with Armstrong but was unable to fmd her. He talked with Jones, who tried un- successfully to find Armstrong. The following day, Friday, November 14, Dennis and Jones met with Armstrong in Dennis' office to discuss events of the preceding day. Dennis accused Armstrong of abusing her early leave permission, and Armstrong denied any such abuse. They discussed the matter in detail, and argued some. Armstrong testified that the meeting was acrimonious and accusatory, but Dennis and Jones denied that testimony; they stated that Dennis was not angry or abusive. Armstrong left the meeting and, because it was quitting time, went out the back door, which was adjacent to, and near, Dennis' office and its 33 Armstrong testified that, as she left, she so signaled to Jones, who talking on the telephone, and that Jones acknowledged her signal Jones denied that testimony by Armstrong Jones is credited Dennis, Jones, and Armstrong all testified differently, relative to the time that Armstrong left the plant The differences ranged from 3:30 p.m. (Dennis) to 3 50 p.m (Armstrong) The differences are not material, even by Armstrong's testimony she left prior to 4 p m., which is what Dennis objected to rear entrance door. She slammed the door loudly, and just as she got outside the door she stated in a loud voice that could be clearly heard inside Dennis' office, "that no good mother-fucking cock-sucking asshole." 34 Dennis reported to Chris what Armstrong said, but Chris was unable to get in touch with Armstrong because she al- ready had left and she had no telephone at home. On Monday, November 17, Chris talked with Dennis and Jones just before 8 a.m. When Armstrong arrived at ap- proximately 8 a.m., Chris talked with her in the presence of Dennis and Jones. Chris told Armstrong he would not permit that kind of behavior, particularly toward a su- pervisor, and he discharged her. Armstrong gathered her personal things together and started to leave. As she walked by Dennis, she looked squarely at him and ut- tered the same words she had used outside the door on Friday. Armstrong left, called a union representative on the telephone, and returned at approximately 9 or 9:30 a.m. to get her paycheck. Armstrong told Chris she had been fired because of her union activities, and she also stated that Dennis was a liar and had tried to bribe an employee. Chris asked for details, and Armstrong gave him none. Chris gave Armstrong her check, which in- cluded pay for a half day for reporting in on Monday, and denied to her that she had been fired because of her union activities. As noted above, the fact of Armstrong's profanity is not in dispute. Armstrong initially testified that she was outside in the parking lot when she spoke, and the initial impression from her testimony was that she was well away from Respondent's building, but it is clear that she was just outside the door when she spoke, and it is also clear from the words she used, the manner of her speech, and all the circumstances, that she was very angry at Dennis and that she intended for him to hear her, or at least, she did not care if he heard her. Finally, it is clear that Chris did not use profane language or condone its use on Respondent's premises. 35 It was apparent from his demeanor on the witness stand, and from the testimo- ny of all witnesses, that Chris is a gentle, soft-spoken person who ran the shop in as quiet a manner as possible. It seems clear that the language used by Armstrong would shock his sensibilities, as he said it did. Armstrong and counsel for the General Counsel, con- tend that Respondent was out to get Armstrong; that Re- spondent provoked Armstrong's conduct; and that Re- spondent used Armstrong's outburst as a pretext to fire her. Armstrong gave many reasons for her language, 36 all of which, she said, combined to result in her outburst of 34 Other witnesses varied the words somewhat, but this quotation is from Armstrong's testimony, which is accepted on this point 35 Armstrong's testimony that profanity customanly is used by em- ployees in the shop is without support, and is given no credence Re- spondent's busmess generally is patronized by persons of professional (ar- chitectural and engineering) or related standing. It is a service and sales business, and the premises consists largely of office and administrative areas It is not a factory or smokestack operation, and the foul language used by Armstrong was, as Thacker acknowledged, inappropriate. 36 Armstrong's personnel file indicates that, on September 26, 1980, Dennis talked with her about, inter alia "cursing because work order amended by customer." SANTA ROSA BLUEPRINT SERVICE 781 November 14. Included, she said, was the fact that, be- cause of being held in Dennis' office after hours on No- vember 14, she missed her bus. 37 The various reasons Armstrong gave are discussed below. Armstrong met with Dennis and Jones in Dennis' office on October 21 for what was Armstrong's first counseling session. Jones, who did most of the talking at the session, testified that the session was held because of several matters that had come up in the then recent past. Principally included were the following: a. Jones told Armstrong that she appeared to be having too many absences on a Friday or a Monday. Armstrong replied that she was not aware of a problem, but that she would be more careful. On cross-examina- tion Armstrong stated that, in the 9 or 10 months she worked for Respondent, she was absent approximately 15 or 16 times, and that 5 or 6 of those absences were on Monday or Friday. 38 She said three of the absences oc- curred when she was out of town on a trip. Jones testi- fied that she kept the timecards, and that Armstrong was absent more than any other employee. No weight is given to this subject. The fact that Armstrong frequently was absent, often on Monday or Friday, is not a dispute. b. Chris did most of the work on the printing ma- chines. Jones testified that on one occasion Chris changed the speed indicator on Armstrong's machine. The operation of the machine was not changed. The in- dicator change was explained by Jones to Armstrong. A few minutes later Armstrong stopped Chris, who was walking by, and complained that the machine was run- ning faster than he had instructed that it should be run. Jones testified that she thought Armstrong's conduct was improper. Armstrong testified: the question she asked Chris was not the one Jones thought, and she corrected Jones at the counseling session. Jones replied that, from then on, Armstrong could talk to Chris only after first checking with Jones or Dennis. This matter is of little, if any, weight. The basic dis- agreement appears to have been a misunderstanding, which, as far as the record shows, was not of major import or the basis of subsequent action. If Armstrong was limited in her access to Chris, as she testified, that limitation was within the managerial hierarchy estab- lished when Dennis came to work for Respondent. c, Jones stated that Armstrong was too loud in the shop, and Armstrong said she would lower her voice. Armstrong (as well as Thacker) testified that the ma- chines were noisy and had to be talked over, but she ac- knowledged that she talked louder than necessary. On cross-examination, Armstrong testified that she did not feel she was being "picked on" during the session, about her loud voice. This matter is given no weight. 37 This reason clearly was an afterthought following a recess in the tnal, and is given no credence. 38 Armstrong's attendance records show that she was absent 6 full days and 3 partial days, of which 5 full days and 1 partial day were on Friday or Monday Benedict, who worked slightly more than half as long as Armstrong, had eight absences, of which five were on Friday or Monday Employee Sharp was absent five times in the 3 months of her employment, of which one was on a Monday. Employee Montgomery was absent 6-1/2 days in the I-month period of her employment of which two were on Monday or Fnday. No absences, other than Armstrong's, were discussed at trial d. On the day preceding the counseling session, a com- plimentary letter was received from a customer and Armstrong had asked why it was not posted on the bul- letin board. Jones testified that she replied, "Mary, we should not be too proud of ourselves because after all, we were only doing our job," to which Armstrong re- plied, while putting her face close to Jones', "You name just one mistake I have made. Just you name any mistake I have made here." Armstrong testified that Jones said Respondent received more complaints than compliments from customers and that she replied "I wasn't aware that I had made any mistakes and I'd certainly like to be made aware and then she told me that she took this as a direct challenge." Jones is credited in this instance, but in any event, this matter is given little weight. Based on the circumstances, the record, and demeanor of the witnesses, it appears likely that Armstrong did challenge Jones, her supervi- sor, and annoy her on the day preceding the counseling session. Certainly this was a proper subject for counsel- ing. e. Dennis and Armstrong engaged in one relatively minor argument concerning whether Respondent should report to the Union the fact that Respondent had hired a new employee. This matter is given no weight in making findings. 1. Counseling session of October 21 1. As pointed out elsewhere, Armstrong was a strong, active union supporter and Respondent was aware of that fact at all times since at least July. Further, as noted elsewhere, Respondent was aware since approximately July that the Union was attempting to organize its em- ployees, and was opposed to that organization. As far as the merits of the session are concerned, there is no evidence that Respondent was abusive, discourte- ous, or threatened, or coerced Armstrong during the ses- sion. Her work generally was satisfactory, but it is clear that her attitude toward Respondent in general, and Dennis in particular, left something to be desired. The question is whether the existence of the session, per se, constituted harassment of Armstrong. By October 21 Dennis and Chris had met with employees, had dis- tributed antiunion campaign literature, and otherwise had made it clear that Respondent opposed the union attempt to organize the employees. Other instances of alleged harassment of Armstrong are discussed below, and the General Counsel argues that all of Respondent's actions, including this counsel session, show a pattern of harass- ment. However, the question still remains whether, absent a union movement, the counseling session would have been held. The General Counsel argues that prior to Respond- ent's knowledge of the union movement counseling of employees and recording of Respondent's complaints against them was rare or nonexistent. Respondent ac- knowledged that Fazio instructed it to start keeping writ- ten records, and that it did so. 38 Chris acknowledged 39 Armstrong's personnel file, C.F. Exh. 1, commences July 8, 1980. 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that, prior to the union campaign Respondent kept no record of employee mistakes. Dennis testified, however, that he knew from seeing files on employees that em- ployees had been counseled from a time prior to his em- ployment. He said the files he had seen were those of employees John Simpson and Timothy Thompson. Dennis further testified that Thacker and Armstrong were not the only employees he counseled. He said that he counseled Thompson on two occasions in September, and put notes in Thompson's file concerning the two ses- sions with him Thompson still is employed by Respond- ent. Dennis also testified that there are counseling notes in Thacker's file dated April or May 1980, and others dated September and October 1980. Armstrong's file (C.F. Exh. 1) shows several notes of criticism of her work on separate dates in 1980, but those matters were not discussed with Armstrong at the time the notes were made. Armstrong testified that there had been instances where she had been talked with when she had made "a mistake or two," but that she never had been reprimand- ed because of mistakes. Jones testified that prior to the union campaign Chris sometimes called employees aside and discussed their problems, work attitude, and per- formance, but that after the campaign such counseling became more formal. Jones also testified that either Chris or Dennis instructed her to keep a written record of em- ployee mistakes. It is quite clear that Respondent did not keep a run- ning record of employee mistakes prior to the union campaign, but that it did keep such records after the campaign was underway. However, that fact alone is not conclusive of this issue. Fazio had recommended that records be kept, and common sense would dictate the advisability of such a course of action, provided the action was not for the purpose of building a case against an employee because of the Union's activity or in order to support discipline of an employee because of such ac- tivity. As far as the record shows, the new recordkeep- ing by Respondent was directed to all employees, not just Armstrong and Thacker, and not just unit employ- ees Dennis' testimony concerning Thompson is credited. As far as oral counseling is concerned, Jones is credited in her testimony that Chris customarily talked with em- ployees about their work problems and mistakes. The fact that Armstrong's counseling was more formal than Chris' past practice is not conclusive, although it does in- dicate particular concern with Armstrong. It is clear that Respondent was not pleased with Armstrong's union ac- tivity, but it is equally clear that Armstrong was a loud, abrasive employee who often was at loggerheads with Dennis and Jones. In any event, this counseling session was innocuous. The question whether the fact of the counseling constituted harassment, however, must be an- swered in the affirmative. Even Armstrong's testimony shows that the session involved only trivia, and for the most part was a spitting match. There is no evidence that Armstrong was intimidated or coerced by it. Arm- strong's employment by Respondent was brief, and she obviously disliked Dennis. Possibly under all these cir- cumstances Armstrong would have been counseled re- gardless of her union activity. However, her union activ- ity clearly was an additional irritant to Respondent, even though by the time of the counseling session the union election was history. It appears likely that Respondent disliked Armstrong for several reasons, not the least of which was the fact that she had been instrumental in or- ganizing the employees and, further, that she was coun- seled in large part because of her union activity. It is found that, on October 21, Respondent harassed Armstrong because of the latter's union activities.40 2. Respondent's printing machines use ammonia gas, generated from a canister that contains ammonia. Liquid ammonia is not used on the prints, but gas is, and use of the gas deposits leaves an odor of ammonia on the paper as it runs through the printing process. That odor lingers for a brief time after the prints are made, but soon dissi- pates after the prints are exposed to the air. Armstrong had an infection on one finger, and told Jones that possibly it could be irritated if exposed to am- monia. Jones said she did not understand how that could be possible. Armstrong testified that Jones asked her for a doctor's "excuse", if she was "not going to be able to use the ammonia," and Jones testified that Armstrong volunteered that she would obtain a doctor's "excuse." Jones is credited on this point but, in any event, a doc- tor's '`excuse" was obtained by Armstrong and presented to Jones on October 23.41 Jones and Armstrong do not agree on what happened thereafter. Armstrong testified: Jones refused to accept the slip from the doctor and said she wanted to talk with him. Armstrong said the doctor's telephone number was on the slip, and then Jones "told me to go out and start work." Armstrong said, "I eventually had to work with the ammonia gas," and she stated that she worked the entire day, plus overtime. She testified that the infection continued 2 or 3 weeks, that she had to have her hand lanced, and that she soaked her hand daily during lunch periods and on breaks with "golden seal and cayenne pepper." She said other employees and Jones knew about her soaking her hand. She said she also was taking an an- tibiotic, erythromycin. Armstrong testified that there was work other than printing that she could have done, but that she was not assigned to any work other than print- ing. Jones testified: I said, "Mary, because of this doctor's excuse, I don't think that you should handle developed print. However, there are other things that you can be doing so that you may remain at work. We have bindery work to do. You could run prints and not handle the developed prints. Have your assistant handle those." Q. Did she have an assistant? A. Yes. Q. Now, if you are operating a white printing machine, do you actually physically handle ammo- nia? 40 It is noted that Armstrong received one wage increase during her employment by Respondent, in May 41 This document is included in C P. Exh 1 SANTA ROSA BLUEPRINT SERVICE 783 A. There is an odor of ammonia remaining on the print after they are developed in the developing chamber of the machine. Q. If you have an assistant, who would handle the prints when they come out of the developer? A. The assistant. Q. So, if the operator was working, feeding the machine, would they come in contact with any kind of ammonia residue at all? A. No. Jones said Armstrong had an assistant at the time of this incident, and that Armstrong never complained about her finger after Jones talked with her. This incident appeared to be blown out of proportion by Armstrong, and it appears likely that it was, at least partially, an afterthought on Armstrong's part. Jones' version seems more logical, and Jones was a more con- vincing witness than Armstrong. Several points are clear. First, although Armstrong said several employees and Jones saw her soaking her hand, no witness corroborated that testimony. Second, ammonia liquid was not in- volved—only residue gas was on the prints. Third, the doctor's "excuse" refers to working "in ammonia." Fourth, Armstrong did not have to handle prints—she had an assistant who could do that. Fifth, there was work other than printing that Armstrong could do. Sixth, Armstrong lost no worktime or pay because of the incident. Seventh, as far as the record shows, Armstrong never complained to Chris, Dennis, or the Union about being forced to do work she could not, or should not, do. Eight, there is no evidence relative to the infection itself, or its treatment, other than Armstrong's character- ization of it as an infection, and her testimony about soaking her finger. As far as the record shows, she could have protected the finger with a rubber sheath, or a rubber glove, because she was only handling prints with residual gas on them; her hands never came into contact with liquid ammonia. It is found that no harassment was involved in this matter. This matter also is alleged as an 8(a)(5) violation, discussed infra. 3. Armstrong testified that she was harassed by Jones, in that Jones distributed Respondent's campaign litera- ture to employees and that Jones insisted that Armstrong take the literature given to her. Armstrong gave her rea- sons for feeling harassed: Why in your mind, did this constitute harass- ment? THE WITNESS: I felt that we had brought a union in and we did this knowing what we were doing and I felt that they were trying to sway our minds. Jones testified that she distributed Respondent's cam- paign letters to all employees, including Armstrong, and she denied Armstrong's testimony that Armstrong re- fused to take one of the letters from Jones. She also denied Armstrong's testimony to the effect that Jones told her "not to be a troublemaker but take the letter anyway." To the extent there are any discrepancies between the testimony of Jones and Armstrong, Jones is credited. This appears to be another instance where Armstrong reached out for incidents to support her claim of harass- ment, which incidents were of little, if any, concern at the time they happened. Armstrong testified that she felt harassed because Re- spondent was trying, through distribution of literature, to "sway" the minds of employees. No other employee so testified, including Thacker. Respondent was entitled under the Act to distribute antiunion propoganda, just as the employees were entitled to distribute either pro- or antiunion literature, provided the literature was not ob- jectionable on its face. No such objection was shown in this instance. Armstrong's embellishment of the incident by stating that Jones told her to take the letter and not be a troublemaker is given no credence. It appeared to be an attempt to create an atmosphere of harassment, when the incident itself does not seem unusual. Jones' testimony that the literature was distributed as a matter of course to all employees, seemed logical, and was not contradicted by any employee other than Armstrong. It is found that no harassment of Armstrong was in- volved in this incident. 4. Armstrong testified that, after Respondent posted a notice to employees relative to use of company tele- phones approximately September 2 (this notice is dis- cussed infra), her uncle, Peter Armstrong, attempted to call her on the telephone concerning her grandmother, who was ill. Her later discovery of the illness, and of the fact that the call was made but that she was not in- formed of it, caused her much distress, she said. Arm- strong further testified that her uncle "told me that he had called and that someone named Dennis Amato had taken the message. He had identified himself when he an- swered the phone and that he. . . I never received that message." Peter Armstrong corroborated Armstrong's testimony concerning the facts of the telephone call and Arm- strong's later distress on learning that she was not in- formed of the call, but he contradicted Armstrong's testi- mony concerning his identification of the one who re- ceived the call. He testified: JUDGE STEVENS: Did the person on the other end identify himself at all? THE WITNEss: May have but I don't remember that. I have to be—I couldn't testify that—I think something like "somebody" speaking, but I don't re- member exactly, no. I wouldn't even say a name be- cause it wouldn't be honest to say it. It was just a man about middle aged man—you know, not a teen- ager but a man maybe in his late 20's, 30's. Dennis denied ever having taken a message for Arm- strong, or any other employee, and refusing to deliver it, and he denied ever having received a telephone call from (Monsignor) Peter Armstrong. Armstrong's testimony concerning her distress on learning that a telephone message was not delivered to her, was logical and understandable, since the illness of a close family member was involved. However, her attempt to pin the cause of the distress on Dennis was not convincing. The fact of the call is ac- 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cepted as related by the two Armstrongs, but Peter cre- dibly testified that he could not identify the person who received the call, and Dennis denied having received it. There were eight telephones on the premises at the time of the incident, and there is no way of identifying who received the call. Peter's description of the sound of the voice he talked with could apply to any one of several persons, and to attribute the conversation to Dennis would require an unacceptable degree of speculation. Whatever else may be said of this incident, it is clear that a finding of harassment by Respondent cannot be made. Perhaps Armstrong believed Dennis received the call, but her belief patently does not control the issue. Her attribution to Peter of the basis for her belief was erroneous and self-serving. 5. Armstrong testified that after employee Robert Phelps, the photographer, left Respondent's employ, she was given the task of cleaning the photo processor on overtime each Monday for approximately a month. She contends that, after a month, she was taken off the clean- ing task and lost that overtime work, which constituted harassment of her. Chris testified that after Phelps left Respondent, an employee named Kenneth replaced Phelps for approxi- mately a month. Chris said the processor was cleaned in the morning, by him and Phelps, and that Armstrong cleaned it "once or twice." Jones testified that the processor normally was cleaned on Monday morning, by Chris or Phelps. She said she asked Phelps to show Armstrong how to clean it, when Phelps said he was going to quit his job. She said Arm- strong thereafter cleaned the processor on two occasions. She denied ever talking with Armstrong about the latter being given overtime work for the cleaning task. Renette testified that Phelps worked full time until May 16, 1980, and thereafter worked part time until July 20, when he quit his job. She said part of Phelps' job was cleaning the processing machine. Armstrong's timecards were reviewed at trial. They show an irregular pattern of overtime, both for the period after May 16 and after July 20. Often the over- time was during the lunch hour. She continued through- out her employment to work overtime on occasion, and the frequency of overtime shows no patter or substantial change. Her last overtime was during the week October 20-24. As noted above, much of Armstrong's lengthy and de- tailed testimony is devoted to describing incidents, some- times of a trivial nature, that she contends show harass- ment of her, but that appear to be afterthoughts that em- bellish the facts in her favor. This is one of those inci- dents. Her timecards, which are not in dispute, make it clear that Armstrong was not denied overtime work, and make it equally clear that Respondent's records do not support her contention that she was denied all overtime as a means of harassment. It is apparent from the cred- ited testimony of Renette, Chris, Jones, and Armstrong herself that the latter's cleaning of the machine was relat- ed to Phelps' quitting his job. Phelps quit July 20. By then, Respondent already knew that Armstrong was a strong union advocate. Yet, Armstrong testified, she was given at least some overtime thereafter. There is no reasonable basis on which it can be con- cluded that this matter constituted harassment of Arm- strong. 6. Armstrong testified that she was harassed by Jones when the latter talked with her on July 10: I was told that Chris had asked her to tell me that until the union thing was cleared up that I was no longer allowed to work the front—work the retail aspect of the job. Q. And in effect, what did she tell you your job was going to be at that time? A. That I would just be a white printer and as- sistant. Q. Okay. What were yotr duties before July 3— say, before July 10, 1980, what were your duties? A. Well, I started out as a white printing assistant and then I was taught to be a white printer. And then in June, I was taught to work the Ektoprint machine. I was taught to do drilling, to do binding or Ektoprint jobs, and I was brought out to work the front, to run the cash register, to take in jobs from customers, to ring jobs up, to answer the tele- phone, to do inventory and basically that was it, the retail aspect of the job. Armstrong testified that this was harassment because printing is a "factory type" job, and more laborious than working the counter. Jones denied telling Armstrong that she could not work the counter until the union matter was cleared up, but testified relative to an incident in May: After I had given her a project in the front office to call customers who had not picked up jobs for a while—they were still sitting on the shelf—after I had given her that project, she seemed to want to come out front and fmd out more projects to do. I had to tell her that her place was in-the white print- ing department, that there was work to do in there. Q. Other than that occasion, did you ever have occasion to tell Mary Armstrong that she could not work in the front counter? A. No. Chris testified that all printers, including Armstrong, sometimes came to the counter to talk with customers concerning particular jobs, but usually Jones carried out that function. When Jones was absent, the printers would come to the counter when necessary. He said he never instructed Jones that Armstrong was not to talk with customers. The fact that Armstrong was a printer, and held no other work classification at all relevant times, is not in dispute. Risley and Benedict were white printers, and both of them were employed at the same time as Armstrong (for different periods of time). Risley and Benedict testified as General Counsel's witnesses, but neither of them testified concerning, or were asked about, counter work. Sheets, who worked as a printer from December 1979 to May, 1980, was as previously noted, a very credible witness. SANTA ROSA BLUEPRINT SERVICE 785 Sheets testified that she sometimes worked at the counter to help out when the salesroom was particularly busy. Sheets testified that she never knew that Armstrong worked at the counter. Thacker was trained for counter work and, except as described elsewhere, was engaged in counter work part time during some of her employment by Respondent. Jones' description of the occasional pres- ence of printers, including Armstrong, at the counter was logical, and is credited. There was no showing that Armstrong was particularly suited to counter work, or had an unusual aptitude therefor. Certainly she was not a salesperson in the manner that Thacker was. Armstrong testified on several occasions relative to the pressure of work for printers, and she sometimes worked overtime on printing jobs during all of her employment by Respondent. She was employed by Respondent for less than a year, and no reason was shown for selecting her as a counter trainee. Further, there is no evidence that she did counter work, other than to discuss particu- lar jobs with customers, as did all the printers. Finally, Jones was in charge of the counter and was present most of the time to do the work required there. Her office abutted, and opened to, the counter. The printers' room was set off from the counter, and opened on a hallway to the rear of the counter. Under such circumstances it seems clear that Arm- strong did not do counter work from which to be pre- cluded, and Jones' testimony that she did not tell Arm- strong that she was being taken off the counter is cred- ited. It would be illogical to find that Armstrong was harassed by removing her from work she did not do. 7.Two matters relative to attitudes were placed on the record, and should be noted. (a) Armstrong testified (as did Thacker) that, prior to July, Chris was very friendly with her, but that, after July, he was cool and distant. That observation is accepted as correct. Chris knew of the union activity and Armstrong's participation, and he resented those facts. Further, Fazio had cautioned Chris about his treatment of employees. (b) Risley, one of the General Counsel's witnesses, testified: Q. Did Mary Armstrong ever make a comment to you that because of her union activity, she could get away with whatever she wanted? Or words to that effect? A. Well, yes. Q. What did she say? A. I don't know how it came about or what had happened. But I guess we had been told to keep it down. Sometimes it would be a little noisy. And she said that nothing could happen now that the union was in then. And I think that was the day that Eliz- abeth and I went to Chris and talked to him and apologized for starting the whole mess. As earlier noted, Risley was a credible witness. Arm- strong denied this testimony by Risley. 8.Armstrong testified relative to harassment of all em- ployees involved in alleged policy changes by Respond- ent. Those matters, which are of only incidental rel- evance to the discussion of Armstrong's discharge, are discussed infra as possible violations of Section 8(a)(5) of the Act. 2. Armstrong's discharge Several facts either are not in dispute, or conclusively are shown by the record. (a) Armstrong resented and personally was opposed to Dennis. (b) Armstrong gener- ally got along well with Jones, Dennis, and Chris prior to commencement of her union activity, but after the three managers learned of that activity, their relationship with Armstrong became strained,'" particularly as far as Dennis was concerned. (c) Armstrong's work generally was satisfactory, but she was an aggressive, loud, some- times abrasive employee, and on several occasions en- gaged in confrontations with her supervisors. (d) Re- spondent wanted to see Armstrong out of its employ, and engaged in some harassment of her, as described above. (e) Armstrong's foul language was inconsistent with the general nature and use of language on Respond- ent's premises. Because Respondent would be glad to see Armstrong off its payroll, partially if not principally because of its resentment of her part in the union activity of employ- ees, the most important question is whether Respondent would have fired Armstrong because of her outburst, whether she had been engaged in union activity.'" Armstrong's language was not the usual type of pro- fanity used by employees in businesses such as that con- ducted by Respondent. 44 It was gutter language. Mildly profane expletives are a fact of life, and are used throughout society. They are expected in nearly all busi- ness settings to express surprise, disgust, anger, or even pleasure. Sometimes they are used in Respondent's place of business, as would be expected. However, the prem- ises involved clearly were not the place for Armstrong's use of words. Chris and Renette were religious people, and all witnesses agreed that Chris is a mild, easygoing person who conducts his business in as quiet and deco- rous a manner as possible. He resents loud voices, and does not use profanity. Certainly he was not shown to tolerate or condone a profane shop. Clearly, the use of Armstrong's base profanity would be shocking to Chris. The question then arises whether Armstrong addressed her language to one or more supervisors, or whether she was just blowing off steam. It is apparent that her words were addressed to, and intended for, Dennis. She as- signed many reasons for the words, including the fact that she had just missed her bus, but those excuses are not persuasive. She began her string of obscenities, ac- cording to her own testimony, with the word "that." She had just emerged from a confrontation with Dennis and Jones. Obviously, "that" was Dennis, who had made her mad because he challenged her early absence of the 42 Risley credibly testified, and Dennis denied, that during their con- versation when Dennis offered her a bribe (see sec III,D, above), Dennis stated that Armstrong and Thacker started the Union and it was causing Respondent problems, "and it would be more peaceful when they were gone." Risley also testified that Respondent did experience problems with Thacker and Armstrong, and that Thacker and Jones "always argues." 43 Wright Line, supra 44 Thacker testified that Armstiong's language was not acceptable for use at Respondent's premises 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD preceding day. Further, her obscenities were not uttered in a soft voice, audible only to herself, nor even at a normal conversational pitch. They were very loud, clear- ly audible inside the building she just had left. The con- clusion is inescapable that she intended the words for Dennis, and that she wanted him to hear them. And, to make it doubly clear to him that she intended just that, she looked at him as she left the premises after being fired (on Monday) and called him the same names she used on Friday. She singled Dennis out for her assurance that he got the message; she did not give Jones or Chris that message, although they were standing close by. A final question is whether Respondent's harassment of Armstrong justified her profanity. In the first place, that harassment was not nearly so severe as Armstrong contends, as noted supra. Her dredging up of a series of minor incidents, and embellishing them to fit her conten- tions, was not convincing. Respondent was giving her a hard time, but she was doing a good job of defending herself, and responding in kind as occasions permitted. In the second place, even assuming severe harassment as Armstrong contends, such action by Respondent would not warrant her calling one of her supervisors the foulest of names, in the presence of a second supervisor, Jones. As far as the record shows, Armstrong still would be employed by Respondent had she not acted as she did on November 14. As Chris testified, he did not have to put up with the kind of conduct Armstrong engaged in, re- gardless of her involvement with the Union.45 Armstrong's discharge did not constitute a violation of the Act. 0. Alleged Imposition of More Onerous Working Conditions Paragraph 7(c) of the complaint alleges that Respond- ent imposed several more onerous working conditions on employees because of their union activity. The various allegations are discussed below, seriatum. 1. Refusing to permit Armstrong to work at the counter This allegation was found supra not to be supported by the record. 2. Instituting a more restrictive telephone policy Prior to September 2 Respondent had a general, un- written policy concerning use of company telephones by employees for personal reasons. As noted above, Re- spondent had eight telephones located in various places on the premises, with those telephones connected to four outside lines. Employees were permitted to use the tele- phones within reason, provided they did not interfere with business use of the telephones and provided em- ployees reimburse Respondent for any long-distance or other charges incurred. Employees frequently made use of that policy, and at no time was any employee admon- ished because of telephone usage or because of abuse of the privilege. All employees, managerial as well as rank- 45 Wright Line, supra See also Atlantic Steel Co., 245 NLRB 814 (1979); Golden Nugget, Inc , 215 NLRB 50 (1974) and-file, were aware of the policy. Sometime prior to September 2 the matter of telephone usage was discussed among Chris, Renette, and Dennis, and by the managers with Fazio. On September 2 a notice to employees was prepared by Renette and signed by Chris, and was posted for employees' guidance. The notice reads as fol- lows: To: All Employees Subject: Telephone Calls Due to the fact that our phone bills have been in- creasing over the past several months, and there have been some customer complaints that our lines are always busy, the following guidelines will go into effect immediately: 1. Personal phone calls are to be made only during breaks or lunch hour and only on line 0407—limited to one call per person per day. 2. Special permission must be obtained to make any calls outside the local Santa Rosa area from your direct supervisor or other management person- nel.* If permission is granted, these calls must be charged to your home phone. 3. On incoming personal calls, a message will be taken and relayed to the employee, who may return the call during the periods specified in (1) above. 4. In case of a family emergency, the person an- swering the phone should notify Carol or other management personnel* immediately, and the em- ployee involved will be permitted to take the call immediately. *Other management personnel defined J. C. Amato Renette Amato Dennis Amato Renette, Jones, and Dennis testified relative to the background of the notice, and said it was necessitated be- cause of increased use of the telephone by employees for personal business, increased telephone bills, and customer complaints about being unable to call into Respondent for business purposes. Fazio testified that Renette called her in early September, said she was having a serious problem with increased telephone bills, and stated "I'm afraid to do or say anything without checking with you first . . . ." Fazio testified: I asked her if they allowed people to just make un- limited calls or long distance calls and she said no, we've asked people just to be reasonable in their phone usage. And I suggested to her that I didn't see anything wrong or inappropriate with just reit- erating their phone policy in writing and I specifi- cally asked Renette at the time and then later checked with Chris—I said now, you realize that the phone situation applies to everybody here and he said oh yes, we're not talking about one particu- lar group of employees or one or two employees. It's for everybody—people in the office, people in the printing department, everywhere. I said well, I don't see anything wrong with putting out some SANTA ROSA BLUEPRINT SERVICE 787 kind of a bulletin just reiterating this, and I would talk to their union representative about it. Much trial time was spent on this issue, which seems to be a trivial matter. There is no evidence that employ- ees were inconvenienced by the memorandum, and even Thacker and Armstrong apparently had no specific com- plaint, other than the fact that the notice was posted. No employee testified that employee use of the telephone was any different after the memorandum was posted, than it was before the posting. The memorandum does tighten up the past loose policy, but employees still were permitted to use Respondent's telephones for personal business, albeit on a limited basis. Certainly the notice on its face is in accordance with customary and accepted sound business practice. The testimony of Renette, Jones, and Dennis that the use of telephones had got out of hand is credited. Possibly the union activity increased the use of telephones, but that is speculative and irrele- vant. The basic question is whether the notice to em- ployees unreasonably imposed "more onerous" working conditions on employees than earlier prevailed because of the employees' union activity. It is found that it did not. As earlier noted, Fazio was a very credible and con- vincing witness, and her testimony on this subject is ac- cepted as accurate. Her advice to Respondent, credibly corroborated in relevant part by Chris, makes it clear that the policy was intended for all employees (as stated in the notice), whether they were unit employees. There is no evidence, however remote, that the notice was issued because of union activity, 46 or in order to retaliate against any employee or group of employees because of their union activity. It was issued solely for business rea- sons, unrelated to union activity. This allegation is found to be without merit. The question of a duty to bargain with the Union con- cerning the notice is a different subject, discussed infra. 3. Makeup time for employee absences Armstrong testified that prior to July 3 if employees took time off they could make up the time within the pay period. After July 3 that was changed, she saki, to the requirement that the time be made up the same day it was missed. On cross-examination, Armstrong testified that the policy was changed after September 4, and that she "thought" the change was announced by Jones coming into the printing department and announcing it to "everybody." Sheets testified that when she was absent because of illness she was on paid leave and did not make up the time. She said that as far as she knew no one made up time for absences. Benedict testified that prior to September 4 employees were able to take time off for medical appointments and other reasons, and that the policy remained the same after September 4. However, she said, after September 4 the time taken had to be made up the same day rather than as before, any time during the pay period. Howev- er, on cross-examination Benedict testified that she never 4 6 The union election already had been won by the Union on August 26. took any time off after September 4; that she never was informed by a supervisor or manager that there had been any change in the time makeup policy; and that she ob- tained her information on this subject from Armstrong. Levine testified that prior to September 4 he had taken personal time off but did not have to make it up on the same day. Jones testified that the only two employees involved in makeup time were Risley and Benedict. She never dis- cussed the subject with Armstrong or Thacker. Risley once was given permission to make up time during a lunch hour in order to use worktime to take her son to a dentist, and on another occasion a similar arrangement was made. On one of those occasions Risley filled out a timecard for 8-1/2 hours, which included one-half hour of makeup time, and Jones explained that she could not do it that way because that created overtime out of regu- lar time; hence, the makeup time had to be worked the same day it was taken. Jones testified that Benedict once wanted to make up time taken off, on some other day in the manner Risley had tried, and that she explained to Benedict that it could not be allowed because it turned regular time into overtime. Chris and Dennis testified that Respondent never changed its policy relative to taking, or making up, worktime. This issue has the appearance of some others raised by Armstrong, as discussed supra, i.e., the appearance of a nonissue. Jones' explanation of the makeup matter is credited. Benedict's testimony is not probative, and in- volves only hearsay from Armstrong. Levine's testimony has been considered, and is given no weight. No viola- tion of the Act is found relative to this subject. 4. Breakroom policy Respondent's breakroom is small, approximately 10 by 12 feet, and is located to the rear of the sales and counter room. It contains a table and three or four chairs, and some supplies that are stored there. Prior to September 4 the room was loosely supervised, and principally was used by employees, although customers and visitors sometimes used the room for brief periods of time. It is curtained off from other areas, and is easily accessible. Dennis testified that after September 4 use of the breakroom by persons other than employees, their rela- tives, and spouses was limited because the room was be- coming crowded and inconvenient, and used by too many people who were not employees. Benedict testified that, prior to the union election, the breakroom could be used by anyone, including employ- ees, relatives of employees, spouses, and friends of em- ployees. She said the breakroom was "cozy" with four people in it. Armstrong testified: Carol McNulty-Jones informed us on November 14 that the break room was no longer open to just anybody outside of employees and she said that yes, we could have an immediate family member present—you know, they could wait in the break room for us and I asked her if my husband—who 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was not my husband at the time—but I asked her if he could—he was included in that, and she said yes. Armstrong testified that, when she talked with Dennis and Jones on November 14 about leaving early on the preceding day, Dennis stated, among other things, ". . . from now on, no one would be allowed in the break room except employees." Thacker testified that Scheidler, a union representa- tive, was waiting in the breakroom on November 13 to take Armstrong to the union meeting that day, and while there, doodled on a piece of scrap paper, which he later threw into a trash basket. She said Jones talked with her the next day: She told me that I had been pretty foolish to invite a union organizer back into our break room. I said, I didn't see why. She knew that Russ was coming there to pick up Mary and it was just—she said, no, he was probably back there campaigning for the union and they didn't like that; he'd even left a note. And I said, yes he did. And I said, oh, you mean—he was trying out his pen and he wrote that this is now a union pen. And now, Dennis has it. Q. Dennis has what? A. Had the little scrap of paper. Q. That Scheidler had been writing on? A. Yes. Q. Did she tell you how he got it? A. He got it out of the trash. Q. What else did she tell you in that conversa- tion, your sister? A. Well, that I'd reAlly blown it because I had a union member back in there and now everybody was all up in arms about it and now they were going to have to restrict the break room. On cross-examination Thacker stated, inter alia, "As I said I'm not certain to the exact date; but the policy did change. But I'm not certain of the date." She also testi- fied that the change of policy occurred "a few weeks, a couple of weeks" after the union election. She said the breakroom policy "remained the same up until that spe- cific announcement." Jones denied Thacker's testimony on this subject and testified: The break room was becoming crowded with people that were not supposed to be in the break room. It was a small area. It had three chairs, and we have 16 employees. I would schedule breaks carefully to make sure that everybody had a place on their break to sit down and drink their coffee. And occasionally I would hear a loud noise from the break room. I would go back there and I would say, "You have to keep it down. We can hear you out in the show room. Customers can hear you." At one point, I went in there because it was so loud in there, and I said, "What is going on in here? It sounds like you are having a party." There was a customer in the break room, and Mary replied to me, "You can't tell us to be quiet. There is a cus- tomer in here now." The break room was for em- ployees. It was back behind the counter. You would not want—or, the company would not want strang- ers to be able to wander in there. So it got to the point where something had to be done to limit that use. So I told the employees that we were going to have to limit the use of the break room. There was not enough room to crowd all of the people in there, and we were going to have to limit it to em- ployees' use and immediate family members if they had somebody there waiting to pick them up or something. Q. Was there any discussion about whether the employees' boyfriends or something like that— A. [Interrupting] Yes; Mary asked me if she could have her boyfriend in the break room. And I said, certainly. Q. At any time up to the time that Elizabeth left her employment with the company, were the em- ployees told that they could not bring anyone into the break room, even relatives or friends, like her case? A. No. Q. Did they continue to have people sit in there and wait to pick up employees? A. Yes. Q. Did they still do it? A. Yes. Jones later testified that the breakroom change was insti- tuted on November 14, and that, prior to that date, there had been no firm policy on the use of the breakrooin. Jones said she did not know about Scheidler being in the breakroom on November 13, until the trial in this case. It is clear that the practice relative to use of the break- room was changed by Jones on November 14, which was well after the union election. It also is clear that, set- ting aside the matter of union activity for the purpose of analyzing the change, a reasonable restriction would be proper. The room was quite small, and it was located near the customer area in the sales room. Sixteen or sev- enteen employees used the breakroom, and it was neces- sary even prior to November 14 to rotate use of the room on breaks, because it only had three or four chairs. The change was not a drastic one—it was understood by Armstrong and Thacker to restrict the use of the room only as far as "outsiders" were concerned. Arm- strong's boyfriend was not excluded. The change affected all employees of Respondent—it did not affect only unit employees, or certain members of the unit. The principal question is whether the change was insti- tuted in order to interfere with union activity. Union or- ganization could not be involved, because the election al- ready had been held, and the Union already, by Novem- ber 14, represented the employees. Respondent and the Union had executed no contract, and there was no con- tractual agreement relative to the presence of union rep- resentatives on Respondent's premises. In any event, Scheidler was not in the room for any purpose other than to wait to pick up Armstrong. Jones testified that when the change was made she did not know of SANTA ROSA BLUEPRINT SERVICE 789 Scheidler's presence in the room, but Thacker said Jones instituted the restriction because of Scheidlees presence. In any event, it is clear that the restriction did not inter- fere with any union activity—Scheidler could have picked up Armstrong at the curb, as well as in the break- room. Even assuming that Thacker's version of the re- striction is accurate, Respondent would not have violat- ed the Act by restricting the breakroom to preclude union representatives from its use, since it was closely and personally associated with employees. There was no stationary or contractual requirement that union repre- sentatives be permitted to use the room. Assuming arguendo, that the restriction indicated Re- spondent's union animus, that animus is clear in any event. Whether the matter should have been discussed with the Union is a separate matter, discussed infra Cer- tainly the breakroom change was trivial, and did not impose more onerous working conditions on employees. No employee, including Thacker and Armstrong, testi- fied that they were inconvenienced by the change. No violation of the Act is found, relative to this issue. 5. Refusal to accept Armstrong's doctor's "excuse" This matter is discussed supra, and it is found that this matter did not involve the institution of more onerous work conditions. 6. Refusal to permit Thacker to work at the front counter The fact that Thacker was removed in October from part-time counter work, which work was easier and more pleasant than printing, is not in dispute. Thacker credibly testified that she enjoyed counter work and wanted to keep doing it. Chris and Dennis made the de- cision to transfer Thacker to a full-time printer, and Jones credibly testified that Chris did not confer with her prior to the transfer. She said she was told about the matter after the decision was made, and that the reason given was Thackees poor performance at the counter. Jones was Thacker's immediate supervisor. When Thacker was transferred, a new employee was hired to work at the counter full time. Chris testified that his chief complaints about Thacker's work at the counter were that she leaned on the counter, talked too much with customers, and failed to keep herself occupied between customers. He said he was informed by Dennis and Jones of errors made by Thacker. He denied taking Thacker off counter work be- cause of her union activity. He said he spoke with Thacker about her leaning on the counter, but there is no evidence that he otherwise talked with her about her work performance at the counter. Respondent's union animus, and knowledge of Thacker's union activity, are found supra. Further, as discussed elsewhere in this decision it is clear that Chris resented Thacker's union actiVity, and changed his atti- tude toward her because of that resentment, from friend- ly to cool and distant. Although Thacker was a difficult employee because of her frequent failure to accept supervision by, and her fre- quent arguing with, Jones, and her resentment of Dennis, and even though she made errors for which she was ad- monished, it appears that her counter work with custom- ers generally was satisfactory. Certainly she never was warned that any of her alleged shortcomings in the sales- room could result in discipline, or removal from counter work. Chris' explanation of the reason for Thacker's transfer was weak and unconvincing. He did not testify to any credible event, or series of events, that precipitated the transfer, nor did he explain why, after her past work at the counter, she suddenly became unsuited for that work. In view of his resentment of Thacker's union activity, it seems clear that Chris transferred Thacker as a form of punishment, or discipline, because of that activity. Printing being more onerous and less interesting than counter work, and Thacker preferring counter work, it is found that this allegation of the complaint was proved by the General Counsel. 7. The change of Thacker's work hours Employees other than Thacker normally worked from 8 a.m. to 5 p.m. The shop was not open to customers until 8 a.m. Sometime in the past, Thacker's hours were changed at her request, to start at 7:30 a.m. and quit at 4:30 p.m. The request was made in order that Thacker could ride to and from work with her husband. She did not have a key to the shop, but usually started to work at 7:30 a.m. after being let in by Chris, who customarily started wcirk at an early hour. On November 5 Dennis told her that her hours had been changed back to 8 a.m. to 5 p.m., at Chris' instructions. Chris later verified that fact. Chris testified that he changed Thacker's hours be- cause she was not under supervision between 7:30 a.m. and 8 a.m., and in view of the fact that she was on pro- bation, he wanted her to be supervised at all times. Respondent's motivation relative to this matter is the same as that discussed in the section next preceding this one. The fact that Thacker's early hours were a personal accommodation for her is not in dispute. Chris' explanation for the change is illogical and un- convincing. He was in the shop at an early hour, and could provide any required supervision of Thacker. Clearly, the only reason for the change was to harass Thacker by saddling her with hours that were inconven- ient, rather than permitting accommodation for her as in the past. This allegation of the complaint is well supported by the record. P. Thacker's Quit Paragraphs 6 and 7 of the complaint in Case 20-CA- 16030 allege that about January 14, 1981, Respondent constructively discharged Thacker because of her union activities. Thacker testified that commencing a few days after the negotiation scheduled for November 17 there was severe and frequent harassment of her, particularly by Dennis. The alleged matters of harassment are discussed below. 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1.Thacker testified that, commencing a few days after November 17, she observed Dennis standing and watch- ing her, with his arms folded. She said he did the same thing, almost daily, until she quit her job. No other witness testified in corroboration of this statement by Thacker. Dennis denied watching Thacker. This is a subjective matter, unless Dennis is shown to have manifested his surveillance in some obvious manner. The only manifestation alleged by Thacker are the star- ing and the folded arms. That testimony was not cor- roborated, and without convincing corroboration this testimony is considered doubtful. There is no doubt about the animosity between Thacker and Dennis, but Dennis is a supervisor, and his daily routine takes him into all parts of the business. It is possible that Dennis watched Thacker, but in view of Thacker's intense dis- like of him, it also is possible that his routine was misin- terpreted by Thacker, who was sensitive and prone to breaking into tears. This matter is given no credence. 2. Thacker testified that on December 10 Jones misin- terpreted to Chris her volunteering to work overtime during the lunch hour to get a job out. Jones testified that her conversation with Thacker was an insignificant disagreement and that when Chris, who was nearby, asked what was going on, Jones replied "nothing." This clearly was a trivial matter, and is given no weight, regardless of whose version is accepted. 3. Thacker testified that, also on December 10, she was joking with employee Jim Long about her being in the front office to pick up supplies and Dennis, who overheard the conversation, took it as an affront, and ad- monished her about it. She said she felt harassed, and cried about the incident. Dennis testified about the incident and said he only asked Thacker to keep her voice down. This is another trivial incident that does little more than show the animosity between Thacker and Dennis, and 'Thacker's extreme sensitivity. In her testimony, Thacker repeatedly told about her crying, at home and in the office, and graphically described the emotional trauma she was undergoing each day at work. Her de- scriptions appeared overdrawn and dramatic, and are given little weight. This incident is given no weight. 4. Thacker testified that in late December Dennis gave her a rush job and they argued about the sequence of jobs to be run. Thacker told Dennis that it was her re- sponsibility to establish the sequence. She said Chris came over and straightened the matter out. This was no more than a minor disagreement between Thacker and Dennis, that immediately was settled by Chris. It is entitled to no weight, and is given none. At most, it only shows the animosity between Dennis and Thacker. Thacker testified that she returned to work on January 5, after the holidays. She testified: Well, over the holiday, I had a chance to review my position at Santa Rosa Blueprint. My job had not improved. It had just gotten worse. Conditions had not improved. They had gotten worse. I was leaving work in tears at least every other day. My husband was saying it's not worth it. He knew that I felt very strongly at this point about the union. I felt, since Mary was already gone, I was the only person left that would really represent the union at Santa Rosa Blue. I felt that 1, had a moral obligation just to stick it out. It was just taking too much out of me. I was getting a lot of pressure from my hus- band to leave. And so on that day, I told my sister, Carol McNulty-Jones, that I would like to give my two-week notice. Q. What did she say? A. She said okay. I said, do I need to tell Chris Amato. And she said, no, that she'd tell him Q. At that time that you gave that notice, did you have any prospects for another job? A. No, I did not. Jones testified that approximately January 4 Thacker talked with her about quitting, and when she asked why, Thacker replied "Well, Fred [Thacker's husband] and I are going back to Virginia." Jones further testified: There was a specific problem that happened during the last week of her employ where she was—Dennis came into the front office and said, "Do you see what is happening in the white print- ing department?" And from where I am seated I can see directly to the back of the white printing department, and I looked and I saw all of the ma- chine operators congregated in one spot around the paper cutter. So I went back there, and I said, "What is going on?" And Elizabeth said, "Well I am counting paper, and Elaine is cutting paper, and somebody else is doing something else. Do you have any more questions to ask me?" And I said, "No; but I sure wish all of you would go back to your work stations," and I left. And, when I walked back out front, Dennis said, "I heard Elizabeth's re- sponse to you, and I don't think it was appropriate. Would you ask her to please come out front be- cause I would like to speak with her?" And so I Went back and I said, "Would you come out front for a second, please?" And she came out front, and Dennis spoke with Elizabeth. He said, "There is just too much chatter going on back there. The work— it is disrupting the work flow. Work isn't getting done." And then he told her that she could go back into the white printing department. Jones testified that, on the same day soon after the above-quoted incident; an employee reported to her that Thacker was shouting at Dennis about an apology, and Dennis was not responding Jones stated: And when I heard about that situation, I went to Chris, and I said, "Chris, it is escalating out of con- trol. We can't seem to control what is going on with the work flow here, and I think it would be a good idea if we allowed Elizabeth to leave a couple of days early before her two-weeks notice is up." And Chris agreed. SANTA ROSA BLUEPRINT SERVICE 791 Q. What was the next thing that happened? A. I went and got Elizabeth and asked Elizabeth to come back from the white printing department. And we went into Dennis', and there was Chris and Dennis and myself. Chris explained to her that he was going to allow her to leave work with pay for the last two days of her employ. Jones testified that Thacker said nothing about being har- assed, or about the Union, or about having anyone present with her during her interview with Chris. Dennis corroborated Jones' testimony, with a few ir- relevant discrepancies. Thacker testified that on January 14 she was doing some printing work, and also was assisting Risley. Verna Thacker, a fellow employee, came to where they were to discuss a job Thacker was doing. After some conver- sation, the three employees went back to the work they were doing. Jones came to Thacker and asked her to come into Jones' office, and she said there was too much conversation among employees in the printing depart- ment. Thacker explained that the three employees were discussing jobs they were working on, and Dennis said "no, no, that was not what was happening, that I'd been back there campaigning for the Union." Thacker denied Dennis' statement and Denms replied that she always was campaigning for the Union, and that Doug Simons told him that he, Simons, overheard Thacker talking with the pressman about the Union. Thacker responded that the pressman had asked her how negotiations were going, and she just responded to his question. Thacker told Dennis that he was singling her out, and trying to find reasons to reprimand her. Thacker returned to the printing department, and told Risley what had happened. Risley went to Jones' office to explain what had hap- pened. Dennis walked and Thacker told him he should apologize for his false accusation of her. Dennis said, "You've got to be kidding." Thacker then went to see Chris about Dennis' conduct, and Chris said he would get it straightened out. After lunch, Dennis told Thacker that Chris wanted to see her and Thacker said she wanted to have Risley with her. Dennis told her to see Chris about that. Then: So then I finished what I was doing and I went back. And Chris Amato, Dennis Amato, and Carol McNulty-Jones were all back there. Chris—I said to Chris, I said Chris, may I have another union member present. And he said, no, we just want to keep this simple and amongst ourselves. He said, I just want you to leave; I want you to leave now; any problems that you're having with Dennis, this will clear all those problems up; if you have any- thing in white printing department,' go ahead and go in the white printing department and get your things and then go ahead and leave. He said, I'll pay you for the rest of the week since that what was originally agreed upon, that you were going to work out a two-week notice; and I'll have your hol- iday pay ready for you, that—to come again on Friday; come late in the afternoon to make sure the checks were prepared, and just come and pick up my check. So I said, okay. Risley testified that Thacker told her she was going to quit her job and move back to Virginia with her hus- band, because: She and Dennis didn't get along at all. And they just couldn't work together. So there was quite a bit of conflict there, and that was one of the reasons that she was leaving. Q. My question was did she say that she was leaving because the company was making her job impossible because of her activities, or words to that effect? She never said that, did she? A. Well, no, not like that, no. Sheets testified that, a month or two before she quit her job, Thacker told her that Thacker and her husband had talked "about moving back East."47 Jones testified that she and Thacker often talked about Thacker's father-in-law being seriously ill with cancer, and Thacker acknowledged that fact. The Board does not lightly infer a constructive dis- charge, and each case rests on its own merits. Several words have been used to describe the kind of conduct required in order to infer such a discharge. Included are "intolerable,"48 "abusive,"49 and "unbearable." 5° The fact that an employer has committed 8(a)(1) violations against the employee who quit is not controlling, even though those violations may be numerous and of varied character. 51 Nor is an employer's hostility toward an employee, or its hope that the employee quits, necessari- ly decisive. 52 The test must be whether the employee reasonably cannot take it any longer because of the em- ployer's conduct. Thacker testified at length, and in detail, concerning Chris' change in attitude toward her after learning of her union activity. Whereas he once was friendly and warm toward her, he became cool and distant, she said. That testimony by Thacker is credited. It is clear that one of Thacker's principal problems was Dennis. She said Chris never threatened her. On several occasions during her testimony Thacker made it clear that she was not vindictive or resentful toward Chris; to the contrary, she spoke kindly of him on sever- al occasions. Also, it is clear that, in spite of her inability to get along with Jones at work, she did not harbor hatred of Jones. Jones' testimony that Thacker wanted Jones' daughter for a traveling campanion to the East Coast after Thacker quit, was not denied by Thacker, and belies any irreconcilable estrangement between the two sisters. Risley was not a consistent union supporter, but she was a friend of Thacker, and still works for Re- 41 Thacker denied that she ever told Risley that she left her job to move to Virginia. Risley is credited. 42 Missourian Publishing Co., 216 NLRB 175 (1975) 42 Donohue Beverages, 199 NLRB 581 (1972). 5° Liberty Markets, 236 NLRB 1486 (1978) 51 G. A. Dress Co, 225 NLRB 60 (1976); Van Pelt Fire Trucks, 238 NLRB 794 (1978). 52 Van Pelt Fare Trucks, supra. 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent. Renette was not Thacker's supervisor, and al- though Renette's attitude toward Thacker cooled as did Chris', there is no indication that Thacker resented, or could not get along with, her. Only Dennis seemed to be her implacable opponent. Nearly all of her allegations and complaints revolve around, or involve, Dennis. Many of her confrontations with him were over trivial work matters. Thacker contends that Dennis instigated all those confrontations because of his resentment of her union activities, but the record does not support that contention. Thacker's fellow employees—Risley, Sheets, and Levine, as well as Jones, Dennis, and Chris—made it apparent that Thacker simply could not, or would not, accept Dennis as a supervisor. It appears likely that one of the problems at the core of this controversy was Dennis' disinclination to tolerate Thacker's frequent and loud confrontations with Jones, in the paternalistic manner therefore shown by Chris. Thacker did not, even by her own testimony, tell Jones when she quit that the reason was that she was being harassed by Dennis, or anyone else.53 After Thacker quit her job, Risley was asked by a fellow employee-friend of Thacker to write a statement on behalf of Thacker, to be submitted to the State De- partment of Employment. Risley testified: I was very busy that day, and Elizabeth was wait- ing outside for the statement. And another girl, Verna, came in and asked me for it. And I told her I didn't have it. And she said, "Well, write what I tell you." And I wrote it, and signed it, and gave it to her. And then I got to thinking maybe I shouldn't have. . . . . Not normally, I don't write or do as I'm told. But I was in a hurry, and I was busy, and I didn't feel like stopping to put things in my own words. Q. So you figured the best thing to do was, "I'd better write whatever Verna wants me to write since I'm busy". A. I thought she had worked there three years, that she was entitled to her unemployment. The statement read: I have worked at Santa Rosa Blueprint with Eliza- beth since December 26, 1979. Since negotiations started with the Printers Union last August, Eliza- beth was harassed by management for her union ac- tivities. Aside from the fact that harassment does not necessarily equate constructive discharge, this note is not reliable evidence of harassment, in view of Risley's explanation of the manner in which she wrote it out. The note is constituted of Verna's words; it was written hurriedly, without thought; it was written for a friend (Thacker); it was written in order that Thacker could collect unem- ployment pay. 53 Thacker often wanted, and requested, overtime work She contin- ued to be assigned to such work in December. Thacker alleges that she quit her job because of Re- spondent's harassment of her, but her decision was made, and carried out, in leisurely and contemplative fashion. No one thing precipitated her decison to quit. To the contrary, the situation at work appeared, even by Thacker's testimony, to have been worse prior to No- vember 17 than thereafter. Very little of any import oc- curred after November 17. Certainly constructive dis- charge in January 1981 would be unlikely based on events occurring 2 months earlier. Thacker thought the matter over during the holiday season, and decided that things were not working out, particularly her relation- ship with Dennis. When she returned after the holidays, she did not then leave her job. Rather, she gave 2 weeks' notice, which was not the usual pattern of quits, as far as the record shows. If conditions at work were intolerable, 2 weeks' notice would be unnecessary, as well as unlike- ly. Thacker graduated from college in the State of Virgin- ia, was married there, and lived in Virginia for 3 years with her husband. She and her husband have land in Vir- ginia, on which she has told some persons they may build a home. She and her husband moved to Virginia approximately 9 months after Thacker quit her job with Respondent, and they still live there. Risley credibly tes- tified, and Thacker denied, that Thacker told her prior to January 1981 that she, Thacker, was going to move to Virginia with her husband. Thacker testified that she did not quit her job to move to Virginia. It is quite clear that Thacker had strong family and personal ties in Virginia, and that she planned to move there with her husband. It is not clear when that decision was made, or when the move was planned to be made. It appears likely that the plan to move predated Thacker's decision to quit her job, but that the move definitely was decided on after her problems with Respondent became serious. This matter, however, still does not answer the question whether Thacker quit her job because her working con- ditions became intolerable. Thacker had three supervisors—Jones, Chris, and Dennis. Aside from any desire to move to Virginia, if she wanted to remain, there seems little doubt but that Thacker still would be employed by Respondent, had Dennis not come to work to relieve Chris. Thacker was a problem employee, but Jones and Chris had come to an accommodation with her albeit reluctantly and with some misgivings. Dennis made the difference in her job. Thacker and he had what Thacker termed a "personality conflict." They often argued and bickered. Dennis gave her a hard time on occasion, but she was not incapable of arguing back, or going over Dennis' head to Chris or around him to Jones. Dennis sometimes prevailed on Chris and Jones to confront Thacker with problems, and he made it clear to her that he would not give her the same leeway that Chris and Jones did. Her working con- ditions were not as pleasant after Dennis came to work as they previously were, but quitting for that reason does not constitute discharge. The test is whether those condi- tions became intolerable or unbearable. After Thacker thought over her problem during the holidays, she decided the job was not worth the candle. SANTA ROSA BLUEPRINT SERVICE 793 Dennis was there to stay, and the two of them simply could not get along. Dennis was Jones' boss, hence the Jones-Thacker relationship, with all its problems, would not stay the same as it had been. Further, the softness of Chris had been removed from the equation. Thacker now had to work with a managerial supervisor whom she did not like, and with whom she was not compatible. Possibly she could have made her peace with Dennis, but that effort was not expended. Her hours had been changed, but they still were reasonable and were the same as all other employees. The altered hours she had been working had been arranged solely for her personal, convenience—reversion to regular hours involved a change of only 30 minutes. She had been removed from counter work, but she still was a printer, the same as she had been prior to having been assigned to work the counter part time. Some of the bickering and arguing was Thacker's fault as well as Dennis'. It may well be that Thacker was frustrated and resentful because of the new managerial hierarchy, and that she was unwilling to accept the change, but it seems apparent that when she quit, she did so because of her emotions and personal preference, and not because her working conditions had become intolerable. It is found that Thacker was not constructively dis- charged by Respondent. Q. Alleged 8(a)(5) Refusals to Bargain 1. Changed telephone policy Paragraph 11(a) of the complaint alleges that Respond- ent refused to bargain with the Union concerning its changed telephone policy. The facts relative to this matter are discussed supra. The change was dictated by business necessity (the Union already had won the election on August 26) rather than by a design to interfere with the Union's or- ganizational attempts or employees' union activities. Fazio credibly testified that, at the negotiation session of October 2, the subject of possible working rules, includ- ing use of the telephones by employees, was discussed and Ziolkowski said he had received a copy of Respond- ent's telephone notice from Armstrong or Thacker. Fazio credibly stated, through inadvertent error, howev- er, that Ziolkowski was not notified by Respondent of the policy change until approximately 1 week after the notice was posted. In any event, the question is whether Respondent had a duty to bargain with the Union con- cerning the change. As discussed above, the change was insignificant, and no employee was shown to have been inconvenienced by it. This case is similar to that of La Mousse, Inc., 259 NLRB 37, 49-50 (1981), in which Ad- ministrative Law Judge Jensen stated, inter alia, in dis- cussing possible 8(a)(5) violations after the respondent there issued notices to employees concerning changes in breaktimes, cooking on the premises, and security of per- sonal property: I conclude and fmd that the Respondent has demonstrated justifying circumstances for issuing the December 29 notices. There is no indication that they were discriminatorily motivated as retalia- tion against the employees for any protected activi- ties, nor that they in any way undercut the Union's representative status. Absent discrimination, an em- ployer is free to choose more efficient and dependa- ble methods for enforcing its workplace rules. Bureau of National Affairs, Inc., 235 NLRB 8 (1978). Moreover, the publication of the rules does not rep- resent a "material, substantial, and significant change" constituting a breach of the bargaining ob- ligation. Peerless Food Products, Inc, supra. The Board agreed with the findings and conclusions of the administrative law judge. This allegation is found not to be supported by the record. 2. Employee absences; making up time off This matter is discussed supra. As found, no policy change is involved. 3. Use of breakroom This matter is discussed supra. As discussed, this change was dictated by business necessity, and was not motivated by a desire to interfere with any union activi- ties. No employee was shown to have been inconven- ienced by the change, which was an insignificant one. Respondent's unilateral institdion of the change was not a violation of the Act, as alleged.54 4. Refusal to accept doctor's excuse As discussed supra, no policy change was involved, and this matter was not a subject for negotiation. No vio- lation of the Act is found. 5. Changes in Thacker's work hours and duties As found above, these two changes unilaterally were made by Respondent in order to harass Thacker, and should have been bargained in advance with the Union. Violations of the Act are found as alleged." 6. Changes in medical and dental plans Respondent did not initiate these changes, as discussed above. They were initiated by the insurance carrier, and Respondent's reasonable course to follow was to institute them. Respondent notified its employees of the changes, but it did not notify the Union, which was the employ- ees' certified representative. That failure to notify the Union constituted an 8(a)(5) violation, as alleged.56 7. Respondent's refusal to bargain When the parties met on November 17 to bargain, as described supra, Armstrong was present for the Union k with Ziolkowski and Thacker, although she no longer was employed by Respondent. Chris objected to Arm- strong's presence because she no longer was a member of 54 La Mousse, Inc., supra; Peerless Food Products, 236 NLRB 161 (1978). 55 Pilot Freight Garners, 221 NLRB 1026 (1975); Sundstrand Heat Transfer, 221 NLRB 544 (1975) 56 La Mousse, Inc , supra 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the bargaining unit, and refused to negotiate with her present. The meeting was discontinued. 57 The following day Fazio addressed a letter to Ziolkowski, as directed by Chris. The letter read as follows: Dear Jim: Santa Rosa Blueprint Service is quite willing to engage in productive, good faith bargaining with the Union. We are not willing, however, to negotiate with an individual who does not share any community of interest with the bargaining unit and whose pres- ence would be disruptive and whose demeanor would be antagonistic to the Employer and subse- quent negotiations. We expect to meet, as planned, on Thiirsday, De- cember 4, at 1:00 p.m. at the El Rancho, in Santa Rosa. Aside from Elizabeth Thacker, Would you please advise me, in advance, of your second com- mittee member so that the Employer can make the necessary arrangements so that he/she can attend. I also ask that you contact me if you do not agree that Mary Armstrong will not be present during any bargaining session. Again, I reiterate our position that Santa Rosa Blueprint is willing to engage in good faith bargain- ing with the Union. Sincerely, /s/ Lynn Fazio Lynn Fazio California Association of Employers Representing Santa Rosa Blueprint Service P.S. Attached is a list of Personnel changes in your unit. A meeting was scheduled for December 24 and Fazio appeared, but no one appeared for the Union. No further meeting was scheduled. The fact of Respondent's refusal to negotiate as long as Armstrong was present is not in dispute, and clearly is shown by Fazio's letter of November 18, quoted above. There was no showing that Armstrong's presence at negotiations would constitute a "clear and present danger to the bargaining process."58 Respondent's refusal interfered with the rights of the Union and Respondent's employees to choose their own bargaining representative, and is a violation of Section 8(a)(5) of the Act, as alleged." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with their operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce 57 Fazio testified that she and Ziolkowski had a disagreement about Armstrong's presence and that Ziolkowski stated, inter alia, "I can de- stroy Santa Rosa Blueprint if you want me to and if that's what you want me to do, I'll do it" Ziolkowski did not testify Fazio is credited 58 General Electric v NLRB, 412 F 2d 512 (2d Cir. 1969). 59 Thiene Answering Service, 257 NLRB 284 (1981) among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Santa Rosa Blueprint Service, Inc. is, and at all times material has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Printing Specialities & Paper Products Union, Dis- trict Council No. 1, the International Printing and Graphic Communications Union, AFL-CIO is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. ,3. The following employees constitute a unit appropri- ate for purposes of collective bargaining within the meaning of the Act: All full-time and regular part-time production and maintenance employees including delivery people employed by Santa Rosa Blueprint Service, Inc. at its Santa Rosa, California, facility; excluding profes- sional, confidential, office clerical, sales and tempo- rary employees, and guards and supervisors as de- fined in the Act. 4. The Union is the exclusive collective-bargaining representative of Respondent's employees in the unit de- scribed above, for the purpose of collective bargaining with regard to wages, hours, and other terms and condi- tions of employment. 5. Respondent violated Section 8(a)(1) of the Act by soliciting an employee to spy on the activities of other employees; by threatening employees with job loss if the employees became unionized; by interrogating an em- ployee concerning how he happened to get mixed up in the union bargaining; and by interrogating employees concerning their union activities. 6. Respondent violated Section 8(a)(3) and (1) of the Act by harassing an employee through a counseling ses- sion; and by imposing more onerous working conditions on an employee because of the union activities engaged in by those two employees. 7. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to notify and bargain with the Union as the exclusive bargaining representative of Respondent's employees concerning changes in Respond- ent's medical and dental plans; changes in working hours of an employee; changes in the work duties of an em- ployee; and by failing and refusing to bargain with the Union so long as a discharged employee was one of the Union's bargaining representatives. 8. Respondent did not engage in unfair labor practices alleged in the complaint that are not found here. THE REMEDY Having found that Respondent engaged in unfair labor practices, I will recommend that Respondent be ordered to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act. SANTA ROSA BLUEPRINT SERVICE 795 It is recommended that allegations of the complaint found not to be supported by the record be dismissed in their entirety. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6° ORDER The Respondent, Santa Rosa Blueprint Service, Inc., Santa Rosa, California, its officers, agents, 'successors, and assigns, shall IL Cease and desist from (a) Violating Section 8(a)(1) of the Act by Soliciting employees to spy on the activities of other, employees; by threatening employees with job loss if the employees became unionized; by interrogating employees conceriv ing how they happened to get mixed up in union orga- nizing; and by interrogating employees concerning their union activities. (b) Violating Section 8(a)(3) and (1) of the Act by har- assing employees through counseling sessions; and by im- posing more onerous working conditions on employees because of the union activities engaged in by such em- ployees. (c) Violating Section 8(a)(5) and (1) of the Act by fail- ing and refusing to notify and bargain with the Union as the exclusive bargaining representative of Respondent's employees, concerning changes in Respondent's medical and dental plans; changes in working hours of an em- ployee; changes in the work duties of an employee; and by failing and refusing to bargain with the Union as long as a dischalged employee was one of the Union's bar- gaining representatives. 60 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. (d) 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) On request, bargain collectively with Printing Spe- cialities & Paper Products Union, District Council No. 1, the International Printing and Graphic Communications Union, AFL-CIO as exclusive bargaining representative of Respondent's employees in the union found appropri- ate above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment and, if an understanding is reached with the Union, embody such understanding in a written agreement with the Union. (b) Notify and bargain collectively with the Union on request concerning changes in Respondent's medical and dental plans, changes in working hours of employees, and changes in work duties of employees. (c) Post at its Santa Rosa, California facility, copies of the attached notice marked "Appendix." 61 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 61 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."