Cincinnati Suburban Press, Inc.

966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cincinnati Suburban Press, Inc., a Subsidiary of Suburban Communications Corp. and Gregory A. Flannery. Case 9-CA-23931 July 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 14, 1987, Administrative Law Judge Donald R. Holley issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs.' The Respondent file an answering brief and a brief in support of the decision. 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 only to the extent consistent with this Decision and Order. The judge concluded that the Respondent did not violate Section 8(a)(1) and (3) when it suspend- ed and discharged Gregory A. Flannery because he wrote and had published an article entitled, "Dirty Tricks in the Newsroom." Contrary to the judge, however, for the reasons set out below, we find that the Respondent's actions violated the Act. The Respondent is an Ohio corporation with an office and place of business in Cincinnati, Ohio. The Respondent publishes and distributes a chain of weekly newspapers in the Cincinnati metropoli- tan area. Gregory A. Flannery, the Charging Party, was employed as a reporter in the Respond- ent's editorial department from November 1984 until his discharge on February 2, 1987. In October 1985 Flannery helped to initiate a union organizing campaign among employees in the Respondent's editorial department. The union campaign culminated in a Board-supervised elec- tion in April 1986 in which the editorial depart- ment employees voted against union representation by a vote of 24 to 19. The efforts to organize the Respondent's editorial department employees, how- ever, did not end with the April 1986 election. Flannery and other employees formed a committee r Thereafter, the Charging Party filed a document entitled "Charging Party's Citation to Further Authorities." 2 We agree with the judge that the Respondent violated Sec 8(a)(1) by maintaining rules 18 and 29. We make clear, however, that the Respond- ent may adopt rules in which the content of the rules is necessary to the credibility of the institution and/or the quality of its product, and the rules themselves are narrowly tailored, unambiguous, and designate the category of employees to whom the rules are applicable, provided, how- ever, that such rules do not improperly impinge on the relevant rights of the affected employees. See Peerless Publications, 283 NLRB 334 (1987). called "The April `87 Committee," which immedi- ately began efforts to organize the employees lead- ing to an April 1987 election. Toward this goal, in June 1986 Flannery and others mailed to the Re- spondent's employees an "opinion survey." In July 1986 the results of this survey were mailed to em- ployees and certain members of management. Flan- nery also passed out prounion "business cards" at the July company picnic, which was attended both by employees and management personnel. The Respondent was well aware of Flannery's continuing efforts to organize its employees. The uncontroverted evidence reveals that in August 1986 when some literature that had been posted on the employee bulletin board was taken down, Dan Crowe, the Respondent's vice president, spoke with Flannery and asked him how long the union "agitating" was going to continue. Flannery re- sponded that it would continue until April 1987 when another election could be held. Furthermore, in October 1986 Flannery posted on the employee bulletin board a handwritten "Six Month Update," which urged employees to vote for union represen- tation in April 1987. On October 16, 1986, Douglas Sandhage, the Respondent's executive editor, asked Flannery if he had posted the document. Flannery admitted to Sandhage that he had. In December 1986 an article that Flannery wrote entitled, "Dirty Tricks in the Newsroom," was published in The Cincinnati Review of Politics and the Arts.3 The article, which is reproduced in full in the judge's decision, purports to recount the April 1986 union campaign and the opposition en- countered during the drive. Written as an historical review of the union drive, the article discusses the purported antiunion acts of certain of the Respond- ent's supervisors and employees. Flannery testified, without contradiction, that he gave copies of the published article to fellow employees and talked about using the article as part of the union cam- paign. The Respondent first became aware of the article on January 9, 1987. The undisputed testimony re- veals that Managing Editor Dennis O'Conner tele- phoned Sandhage on January 9, 1987, and told him about the article. Although he had not yet seen the article, O'Conner told Sandhage that he considered it libelous. O'Conner obtained a copy of the article at Sandhage's request and gave it to Sandhage who, in turn, contacted Margaret Halva, vice presi- dent of personnel for Suburban Communications Corp. On January 12, 1987, Halva began an investi- s Although the record does not reveal the circulation of the Cincinnati Review, it does indicate that this publication was available for purchase at area bookstores. 289 NLRB No. 127 CINCINNATI SUBURBAN PRESS gation into the circumstances surrounding the arti- cle and, on January 22, 1987, Halva suspended Flannery without pay pending completion of the investigation. Although Halva interviewed employ- ees named in the article and others during her in- vestigation, at no time did she or Sandhage inter- view Flannery or question him about the article. Based on Halva's recommendation, the Respondent discharged Flannery on February 2, 1987. It is un- disputed that the Respondent suspended and dis- charged Flannery solely because of the article "Dirty Tricks in the Newsroom."4 The judge concluded that Flannery's publication of "Dirty Tricks in the Newsroom" was not con- certed activity under Meyers Industries, 281 NLRB 882 (1986), (Meyers II), which defines "concerted" activity for the purpose of determining the exist- ence of certain types of violations of Section 8(a)(1) of the Act. The General Counsel has ex- cepted to the judge's decision, inter alia, on the ground that the judge failed to analyze Flannery's discharge under Section 8(a)(3). The General Counsel argues that Flannery's article was "inextri- cably intertwined" with the ongoing union organiz- ing effort and that his suspension and discharge be- cause of the article thus violated Section 8(a)(3). We find merit in the General Counsel's exception. Section 7 of the Act gives employees, inter alia, "the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection . . . ." Even though an employee may be acting alone, an employee attempting to form, join, or assist a labor organization is nevertheless protected by Section 7 of the Act. Carpenters Local 925, 279 NLRB 1051, 1055 fn. 40 (1986). In Auto Workers Local 980, 280 NLRB 1378 (1986), we adopted the judge's finding that the employer union violated 4 The Respondent's letter to Flannery, informing him of the Compa- ny's decision to discharge him, stated The Company has completed its investigation of your violation of Company Rules 18 and 29 18 Making false, vicious or malicious statements concerning any employee, supervisor, the Company, or its product 29 Unlawful, improper or unseeming conduct on or off the Com- pany premises or during non-working hours which affects the em- ployee's relationship to his/her job, to his/her fellow employees or to his/her supervisors, or affecting the Company's product reputa- tion or goodwill in the community Our investigation has revealed that you did, indeed, violate these rules The seriousness of these violations warrants your immediate discharge Your suspension of January 22, 1987 is converted to an immediate dis- charge Your discharge under Rules 18 and 29 is based on the following Your conduct and the article you authored in the Cincinnati Review , injured the reputation, image, integrity and truthfulness of Cincinnati Suburban Press newspapers, its management, and has embarrassed, humiliated and ridiculed your fellow employees Your disruptive conduct has impaired employee relationships with fellow employees and our supervisors 967 Section 8(a)(3) and (1) when it discharged an em- ployee for providing information about her labor dispute to a newspaper reporter. Implicit in our de- cision was the conclusion that the employee's action in publicizing her labor dispute was within the scope of activities protected by Section 7. Accord: Operating Engineers Local 139 (AGC of Wisconsin), 273 NLRB 992 (1984), enf. denied on other grounds 796 F.2d 985 (7th Cir. 1986) (publi- cation of a newspaper to question union representa- tives and persuade the union to change its position is protected by Section 7).5 Although the attempts to organize the Respond- ent's editorial department employees resulted in a Board-supervised election in which the Union was defeated, it is clear both that Flannery and others continued their unionizing efforts and that the Re- spondent had actual knowledge of those continued efforts. Prounion materials were openly mailed to employees and management, posted on employee bulletin boards, and distributed at the company picnic. Furthermore, the Respondent's knowledge of Flannery's involvement in the ongoing organiz- ing campaign is evidenced by the questioning of Flannery by Crowe and Sandhage in August and October 1986, respectively. Flannery's article, "Dirty Tricks in the Newsroom," recounted his version of the union campaign and was plainly one aspect of the continuing efforts to organize. Thus, we conclude that Flannery's writing and publica- tion of "Dirty Tricks in the Newsroom" was union activity protected by Section 7 and that a dis- charge based on it constitutes discrimination in vio- lation of Section 8(a)(3). The Respondent argues that, even if Flannery's conduct is otherwise within the scope of activities protected by Section 7, Flannery lost the protec- tion of the Act because his article was false or abu- sive and injured the Respondent's reputation. In NLRB v. Electrical Workers IBEW Local 1229 (Jef- ferson Standard), 346 U.S. 464 (1953), the Supreme Court held that employees may communicate with third parties in circumstances where the communi- cation is related to an ongoing labor dispute and where the communication is not so disloyal, reck- less, or maliciously untrue as to lose the Act's pro- tection. See also Emarco, Inc., 284 NLRB 832 (1987). Applying these standards to the case at bar, we find that Flannery's article was not so disloyal, reckless, or maliciously untrue so as to lose the 5 Although the Seventh Circuit Court of Appeals denied enforcement to our decision in Operating Engineers Local 139, the court expressly noted that it "would sustain the NLRB's alternative finding that an indi- vidual employee engages in concerted activity by taking action to align the union membership with his own position against the union representa- tives." 796 F 2d at 989 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Act's protection. Although the Respondent argues that Flannery's article was inaccurate, it has failed to show any evidence of malice or recklessness on Flannery's part. The Respondent's mere labeling of Flannery's article as "libelous" or "slanderous" cannot substitute for affirmative evidence of malice. In contending that Flannery's conduct was un- protected, the Respondent relies heavily on the sentence in Flannery's article that, "One effort at persuasion by executive editor Doug Sandhage would have been laughable had it not indicated an insidious disregard for the truth." The Respondent argues that this language impugned its integrity and the truthfulness of its newspapers. It is clear, how- ever, that the reference to Sandhage in the article related solely to, and was made in the context of, reciting management's opposition to the Union, and it neither disparaged Sandhage's personal integrity or truthfulness with respect to the publication of the newspaper nor disparaged the integrity or truthfulness of the Respondent's products, the pub- lication of a newspaper, generally. In these circum- stances, we conclude that Flannery's reference to Sandhage in the article was not such as to forfeit the protection of Section 7. See Emarco, supra, and Richboro Community Mental Health Council, 242 NLRB 1267 (1979). Furthermore, while substantial evidence was sub- mitted by the parties regarding whether the article accurately revealed the number of "merit in- creases" Sandhage allegedly claimed the Respond- ent gave employees in 1985, the judge found that Flannery "sought in his article to state what he honestly believed Sandhage had said to [Flannery] and others about merit increases given in 1985." We also note that the record contains substantial evidence to support Flannery's version of the other disputed factual assertions contained in the article. Although the Board need not determine whether the assertions were, in fact, accurate, 6 this evidence negates the Respondent's contention that the article was "maliciously untrue." Thus, there is no show- ing that Flannery's article was written with a reck- less disregard for the truth or maliciously with a deliberate intent to damage the Respondent. Nor can we find that the article, in the context of an ongoing union campaign, was so disloyal as to remove Flannery's conduct from the Act's protec- tion. Having found that Flannery was engaged in pro- tected union activity under Section 7 of the Act when he wrote and had published the article "Dirty Tricks in the Newsroom," we conclude that 6 See, e g., Professional Porter & Window Cleaning Co, 263 NLRB 136, 139 fn 12 (1982) the Respondent violated Section 8(a)(3) and (1) when it suspended Flannery on January 22, 1987, and discharged him on February 2, 1987, for having written the article.7 ORDER The National Labor Relations Board orders that the Respondent, Cincinnati Suburban Press, Inc., a Subsidiary of Suburban Communications Corp., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending, discharging, or otherwise dis- criminating against any employee for engaging in protected union activity. (b) Distributing, maintaining in effect, or enforc- ing company rule 18 involving the making or pub- lishing of "false" statements. (c) Distributing, maintaining in effect, or enforc- ing company rule 29 involving prohibition of "im- proper" or "unseeming" employee conduct on and off company premises. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Gregory A. Flannery immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, with interest.8 (b) Remove from its files any reference to the unlawful suspension and discharge and notify the employee in writing that this has been done and that the suspension and discharge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment ' In light of our disposition of this case, we do not pass upon the judge's analysis under Meyers H. Similarly, we find it unnecessary to pass on the General Counsel's other contentions that Flannery's suspension and discharge were unlawful The General Counsel requests a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order. Under the cir- cumstances of this case , we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 8 Backpay for the unlawful suspension and discharge shall be comput- ed in the manner prescribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest computed as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987) CINCINNATI SUBURBAN PRESS records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Withdraw and abolish its company rule 18 in- volving the making or publishing of "false" state- ments. (e) Withdraw and abolish its company rule 29 in- volving prohibition of "improper" or "unseeming" employee conduct on and off company premises. (f) Post at its East and West Cincinnati, Ohio fa- cilities copies of the attached notice marked "Ap- pendix."9 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the NationalLabor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT suspend, discharge, or otherwise discriminate against any employee for engaging in protected union activity. 969 WE WILL NOT distribute, maintain in effect, or enforce company rule 18 involving the making or publishing of "false" statements. WE WILL NOT distribute, maintain in effect, or enforce company rule 29 involving prohibition of "improper" or "unseeming" employee conduct on and off company premises. 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 offer Gregory A. Flannery immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL withdraw and abolish our company rule 18 involving the making or publishing of "false" statements. WE WILL withdraw and abolish our company 29 involving prohibiting of "improper" or "unseem- ing" employee conduct on and off company prem- ises. CINCINNATI SUBURBAN PRESS, INC., A SUBSIDIARY OF SUBURBAN COM- MUNICATIONS CORP. Carol Shore, Esq., for the General Counsel. Richard L. Way, Esq., of Bloomfield, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On an original charge filed in Case 9-CA-23931 on 23 Janu- ary 19871 by Gregory A. Flannery, and amended charges filed by the same individual on 23 and 26 Febru- ary, the Regional Director for Region 9 of the National Labor Relations Board issued a complaint on 9 March, which alleged, in substance, that Cincinnati Suburban Press, Inc., a Subsidiary of Suburban Communications Corporation (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by sus- pending Flannery on 22 January, discharging him on 2 February, and promulgating and maintaining, since 23 August 1986, two invalid company rules. Respondent filed timely answer to complaint denying it had engaged in the unfair labor practices alleged. The case was heard in Cincinnati, Ohio, on 30 April. All parties appeared and were afforded full opportunity to participate. On the entire record, including the post- i All dates herein are 1987 unless otherwise indicated 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hearing briefs filed by the parties, and my observation of the demeanor of the witnesses I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, an Ohio corporation , with an office and place of business in Cincinnati , Ohio, is engaged in the publication, circulation, and distribution of a chain of weekly newspapers in the Cincinnati, Ohio metropolitan area. During the 12-month period preceding issuance of the complaint, it derived gross revenues from the con- duct of the above-described business in an amount ex- ceeding $200,000, held membership in or subscribed to various interstate news services, and advertised various nationally sold products , including Marlboro cigarettes and Owens-Corning fiberglass. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that the Newspaper Guild (the Union and/or the Guild) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Facts The facts concerning events that gave rise to this pro- ceeding are, for the most part, not in dispute. The Cincinnati Suburban Press, Inc. is one of seven subsidiaries of Suburban Communications Corporation (SCC). It commenced business in the Greater Cincinnati, Ohio area in 1972, when it purchased weekly community newspapers that were already established. Since then, it has acquired additional established weekly community newspapers and created others. At the time of the hear- ing, it published 19 weekly community newspapers, shoppers (advertising for retail concerns), and Reds Vue, a tabloid that focuses on the activities of the Cincinnati Reds baseball team.2 Its circulation approximates 260,000, and some 6000 advertisers utilize the papers. During 1985, the Guild attempted to organize certain employees in Respondent's editorial department. Al- though Respondent employs approximately 200 employ- ees in its Cincinnati operations, only approximately 40 work in its editorial department. Those employees who work in the east division office located in the Mt. Carmel section of Cincinnati and in its west division lo- cated in the Monford Heights area are involved in this proceeding. The record reveals that alleged discriminatee Gregory Flanner was one of the employees who originally con- tacted the Guild in 1985 regarding representation for edi- torial department employees. Flannery, a reporter in the west division office, solicited for the Union during the 1985 campaign, wrote and distributed literature for the 2 The names of the 19 individual newspapers are set forth in R Exh 2 Most have been published for more than 20 years The oldest, the Cler- mont Cumer-Press, was first published in 1826 Union, and acted as the Union's observer at an NLRB- supervised election held on 10 April 1986. The Union lost the election 24 to 19. Flannery's testimony in the instant proceeding reveals the Union's failure to win the 1986 election did not cause him to abandon his efforts to obtain representation for Respondent's editorial employees. Subsequent to the election, he and a segment of those employees formed what they called the April `87 committee, which immedi- ately commenced efforts to cause employees to vote for union representation when a second election could be held in April 1987. Thus, in June 1986, Flannery and an- other employee prepared and mailed to the homes of edi- torial department employees a survey, which sought em- ployee responses to inquiries concerning their satisfaction with their pay, other conditions of employment, and the actions of management. In late July, the results of the survey were mailed to Respondent management . Subse- quently, Flannery attended a company picnic in late July and distributed business-type cards that urged employees to obtain union representation if they wanted better pay and a better deal.3 Thereafter, in October 1986, Flannery prepared and posted on Respondent's employee bulletin board a document entitled "SIX-MONTH UPDATE." In the document, he alleged that certain nonbargaining unit employees had received promotions, that others received better vacation pay, and he observed editorial depart- ment employees had received nothing but more work. The so-called update, espoused the need for union repre- sentation.' With respect to his literature-posting activi- ties, Flannery testified that when he questioned Doug Sandhage, executive editor, and Dan Crowe, a Respond- ent vice president, about literature that had been re- moved from the bulletin board in August, Crowe asked him how long the literature posting and agitating for the Union was going to continue. Flannery replied it would continue until they could have another election in April 1987.5 Respondent's employee handbook reveals it opposes union representation of its employees . Moreover, during the 1985 union campaign, the editorial staff was divided on the issue of representation, and a number of antiunion employees actively campaigned against representation by the Guild.6 In December 1986, Flannery composed an article enti- tled, "Dirty Tricks in the Newsroom," which was pub- lished in late December in a quarterly periodical named The Cincinnati Review. Although the record fails to reveal precisely how or to what extent The Cincinnati Review is circulated in the Cincinnati area, it does reveal it is available at bookstores. It is undisputed that Flan- nery's submission of the "Dirty Tricks in the News- room" eventually caused Respondent to suspend him on 22 January 1987 and discharge him on 2 February 1987. Consequently, the article is quoted in its entirety below:' I See G C Exh 4 Management as well as employees attended the picnic. * See G C Exh 6. Flannery admitted Respondent management had previously given him unqualified permission to post literature on the bulletin board 6 See, for example, G C Exh. 10 7 See G C Exh 7 CINCINNATI SUBURBAN PRESS IN RESEARCHING A STORY on the occult in Cincinnati, I once asked the high priestess of a witches' coven for an interview . She said, "I was told never to trust reporters." But I got the inter- view after praising the advice of her counselors. Now that I have tried (and failed) to unionize a newsroom, I have a deeper respect for the witch's warning. Last winter I chaired a campaign to elect the Cincinnati Newspaper Guild bargaining agent for the 43 editorial employees of Cincinnati Suburban Press. The company publishes 19 weekly newspa- pers. We expected strong opposition from manage- ment. But we did not expect dirty tricks from fellow reporters. When we filed election petitions with the Nation- al Labor Relations Board in January, 65 percent of our staff had signed union membership cards. Yet when NLRB agents counted the ballots on April 10, we lost by five votes. What made the difference? Part of the staff was swayed by an environment of distrust that resulted from tactics our editors would have decried had they been used in a political campaign : phony let- ters. Spying. Cover-up. Six weeks before the election, we realized the union organizing committee had a leak . Someone was feeding information to management. One of our late-night discussions about the union's constitution appeared in printed form as an anti-union leaflet dis- tributed by the company-on the very day after we had met. Literature from the Cincinnati chapter of the So- ciety of Professional Journalists (SDX) was falsified and distributed to the staff; that is, someone doc- tored an SDX membership application , inserting the admonition , "There are several ways to become a professional journalistjoining the Guild isn't among them." Virginia Watson Rouslin, journalism teacher at the University of Cincinnati and presi- dent of the SDX Chapter, said the application was falsified . SDX has no position on the Guild. A phony record of minutes from a meeting of the Guild was posted in the editorial offices. This de- ception was not so clever as the SDX job Guild president Paul Furiga recognized the forgery imme- diately; its author had used the wrong stationery. Adherence to fact is the core of journalistic in- tegrity, yet two staff members kept silent when fac- tual errors were used to management's advantage. Dan Crowe, vice president and general manager of Cincinnati Suburban Press, claimed in a speech that the company had never laid off any employees. But shortly after the election, photographer Mark Bowen, leader of the anti-union campaign , said he was one of two longtime employees once laid off by the company Bowen said he didn't tell his col- leagues because the disclosure might have lost votes for his side. Bowen was named the company's "Journalist of the Year" for 1985. Open and free discussion is the ideal of the American press, yet we found ourselves struggling 971 just to be heard in the newsroom. Pro-union litera- ture, posted with the explicit permission of manage- ment, disappeared from the employees ' bulletin board. Even a notice from the NLRB announcing voting procedures was defaced. The bifurcated way this incident became known illustrates the atmos- phere in our two newsrooms (East and West divi- sions) at the time of the election . Amy Williams, a copy editor in the company's West division, saw that someone had marked an "X" in the "no" box on a sample ballot. The notice containing the ballot, posted in compliance with federal law, contained a warning against marking the ballot . Williams and I worked in the same office, but because there could be so little open exchange of information , I learned that the ballot had been defaced only after she called her husband Joel Williams , a copy editor in the East division, who then told reporter Jane Kammer Habig, a member of the organizing com- mittee, who in turned phoned me. Front-line supervisors opposed the union, but with no small amount of distaste for the task. Anti- union journalists, on the other hand , ostracized the few friends the Guild had left in the West division, making it difficult to discuss the union or even to point out destructions of government property by members of the staff. The most striking ploy by the anti-union cam- paign was worthy of Chicago's electoral legends. The dead didn't try to vote, but columnist Terry Gingrich did . Gingrich didn't work in either of our newsrooms . Since NLRB regulations only allowed office employees to participate, Gingnch's ballot was invalidated , with the consent of the company's attorney. I The level of argument presented by those op- posed to the Guild did not always indicate thor- ough going research or critical analysis. Still, it suf- ficed. Reporter Joe Jacobs, for example, fretted that contract negotiations would lead to the loss of Nerf- basketball in the newsroom. REPORTER STAN KLEINE, who helped initi- ate contact with the Guild, had a change of heart during the campaign . We found out the hard way, when Kleine started wearing a handmade label button with the message, "CBS." His translation: "Collective bargaining sucks." That's not the kind of argument that lends itself to examination of labor law or analysis of economic history . Nor did the tactics of the oppostion [sic] re- flect the toleration and ethical restraint one would expect in a newsroom. Granted, different aims govern the actions of a reporter on the beat and a union foe at the office. But persuasion that distracts from the issue, or de- pends on falsified literature, or is founded on infor- mation obtained through breach of confidence, is morally indistinguishable from the deception and evasion for which journalists sometimes criticize public officials. 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In addition to the insurgent anti-union effort waged by co-workers, management used a heavy hand in defeating the Guild. The staff was divided into four groups compelled to attend anti-union ha- rangues by company attorneys at local hotels. Liter- ature of dubious veracity was mailed to employees' homes, placed on their desks and posted on office bulletin boards. One effort at persuasion by executive editor Doug Sandhage would have been laughable had it not indicated an insidious disregard for the truth. In January, Sandhage confided to me that CSPI had given 20 merit raises to editorial employees in 1985. Later the same day he told another reporter the company had given 12 merit raises last year. To still another reporter Sandhage said 11 merit raises had been given. As the campaign heated up, several reporters and copy editors were given "merit" raises, combined with a stiff dose of propaganda. When the NLRB inquired, Sandhage went back to those reporters and copy editors to make a clarification: They had received "adjustments," not merit raises, he said, and the company didn't give merit raises. If duplicity and sneaking about marked the em- ployees' efforts to thwart the Guild, bullying char- acterized management's efforts. Jane Kammer Habig, a member of the organizing committee, had her hours cut by one-third. I was placed on proba- tion-an action rescinded after the NLRB issued a complaint against the company. Lynn Ratterman, a West division reporter, was fired the day after she signed a union membership card; the NLRB investi- gated but did not issue a complaint since she was a probationary employee. QUESTIONS ABOUT PRESS CREDIBILITY usually dwell on ideological bias, but there is an- other issue. What is sometimes lacking in contempo- rary journalism is commitment to a rigorous meth- odology in the pursuit and dissemination of truth. A recent edition of the Quill, published by SDX, asked if journalism schools adequately train students in the practice of skepticism. An equally important question is whether journalists are sufficiently trained in the art of fair play. 1 Jane Kammer Habig, a member of the organizing committee, had her hours cut by one-third. I was placed on probation . . Lynn Ratterman was fired the day after she signed a union membership card Although the record reveals Flannery obtained some of the alleged facts set forth in the above-described arti- cle from other employees, it is clear he composed the ar- ticle without consulting with any of his fellow employ- ees. He testified the audiences he was attempting to reach through the article were his fellow employees and other labor supporters in town. After the article was published, Flannery distributed approximately five copies of it to his fellow employees, and he gave copies to Guild members who work at the Post and Enquirer, two Cincinnati daily newspapers.8 He testified he engaged in that activity as part of an effort to demonstrate the need for a union at Respondent. Additionally, Flannery testi- fied that at a meeting held at employee Jim Broderick's house on 21 January there was discussion of possible use of the article as background information on the ongoing union campaign for the Guild. Broderick corroborated his testimony concerning the meeting. Respondent management learned of the existence of the above-described article on 9 January. After Doug Sandhage, Respondent's executive editor who oversees both the east and the west divisions read the article, he contacted Margaret Halva, SCC vice president of per- sonnel, indicating he felt Flannery should be fired for re- ferring to him in the article as one who has an insidious disregard for the truth. Halva, in turn, contacted John Reddy, an SCC vice president who was then acting gen- eral manager of Respondent's Cincinnati operation. Reddy instructed Halva to conduct an investigation to ascertain the facts and circumstances surrounding the ar- ticle and its impact on their operation. While Halva testified she started receiving calls from employees about Flannery's article during the week of 12 January, the record fails to reveal that any of the em- ployees named in the article were aware of it until around the third week in January. Apparently, employee Joe Jacobs was the first employee named in the article to actually read it. He testified that during the third week in January his immediate supervisor, Dick Maloney, called him to indicate he was going to come to his home with something he would not be happy about. Maloney subse- quently took a copy of the article to Jacobs' home and the employee read it. He reacted by refraining from talk- ing to Flannery for about a week and keeping discussions with Flannery on a professional level thereafter. 9 Simi- larly, Mark Bowen, a photographer who was assigned to Respondent's west division, testified he became aware of Flannery's article when Allison Smith, the associate editor in the west division office, provided him with a copy. Bowen testified he reacted by telling Allison, Doug Hubbuch, managing editor of the west division, and Sandhage that the portion of the article related to him was a lie and was misleading.' ° Bowen, whose desk was near Flannery's, requested and received Sandhage's permission to move his desk to the far side of the west division office. Additionally, he was informed he would not be required to accompany Flannery on assignments; that he could travel independently if Flannery required. Halva indicated during her testimony that she dis- cussed the Flannery article with Sandhage, Hubbuch, Smith, and Flannery's immediate supervisor, Laura Hobbs, during the period extending from 12 to 22 Janu- ary. She claims she ascertained through such discussions b The parties stipulated that on 27 April 1987 the assistant managing editor of the Cincinnati Post saw a copy of Flannery's article posted on the Guild bulletin board at her paper 9 Jacobs admittedly made the remark concerning Nerf-basketball at- tributed to hun in the article 10 Bowen indicated he was selected journalist of the year in 1985 before the union campaign began and Flannery's phraseology in the arti- cle erroneously made it appear he was rewarded because he was antiun- ion CINCINNATI SUBURBAN PRESS that there was considerable disruption in the newsroom of the west division office" and, for that reason, she recommended to Reddy on Monday, 19 January, that Flannery be suspended. In Reddy's absence, Halva suspended Flannery on 22 January. At that time, she handed him a suspension letter that had been prepared at Reddy's direction and a list of items that were to be investigated to determine the disci- pline to be imposed on him.12 The letter indicated Flan- nery was to be suspended pending completion of an in- vestigation in regard to his violation of the following company rules: 18. Making false, vicious or malicious statements concerning any employee, supervisor, the Compa- ny, or its product. 29. Unlawful, improper or unseeming conduct on or off the Company premises or during non-work- ing hours which affects the employee's relationship to his/her job, to his/her fellow employees or to his/her supervisors, or affecting the Company's product reputation or goodwill in the community. The above-described suspension letter indicated the following list of matters would be considered by Re- spondent in its investigation: 1. Disloyalty 2. Adverse impact on image of CSPI. 3. Allegation-Managements insidious disregard for the truth. 4. Creation of dissention and disruption. 5. Attitude and conduct 6. Adverse effect on newspapers reputation. 7. Adverse effect on integrity of newspaper. 8. Malicious and vicious statements. 9. Violation of ethical standards associated with journalistic responsibilities. 10. Bringing into question the truthfulness of the newspapers publications. Your article in Cincinnati Review, your conduct with employees and supervision. On Tuesday, 20 January, Halva continued her investi- gation of the Flannery matter by interviewing persons mentioned in the article.' 3 Sandhage testified he told Halva, and Reddy as well, that the portion of Flannery's article related to him contained errors and was untrue;14 that he felt the article went against every grain of every- thing they had ever taught Flannery; and that he thought something should be done about it.15 Jacobs testified he 11 No evidence that would reveal production was affected was offered by Respondent 12 G.C Exh 8 13 Although Halva testified the employees voluntarily came to the office to see her, but the record reveals they were summoned to appear 14 Flannery admitted he mistakenly placed his conversation with Sand- hage concerning merit increases as having occurred in January 1985, when it actually occurred in December 1986. 15 Respondent placed accrediting evidence , in the form of handwritten documents that revealed merit increases , pay adjustments, and probation- ary increases given to employees during 1985 and the first quarter of 1986, in the record as its Exhibits 11 and 12 to support Sandhage's claim that he, as a member of Respondent's salary administration committee, 973 told Halva he was disappointed, shocked, and outraged when he read the article as it portrayed him as an idiot. He added he expressed concern that the comments in the article might damage him professionally. The record fails to reveal what Supervisors Kleine and Williams and em- ployee Bowen discussed with Halva when she inter- viewed them.16 After discussing Flannery's article with the persons named in it, Halva caused Personnel Administrator Ham- ilton to ascertain whether Flannery had signed off on and had thereby indicated that he was aware of the Company's rules, its editorial policy, its ethics policy, and his job description.17 It is undisputed that Flannery was familiar with the Company's rules, policies, and his job description.18 Similarly, it is uncontested that Flan- nery attended several libel seminars while employed by Respondent, and he was thus familiar with the subject. On 2 February, Flannery was terminated by a letter from Reddy, the body of which states:19 The Company has completed its investigation of your violation of Company Rules 18 and 29. 18. Making false, vicious or malicious state- ments concerning any employee, supervisor, the Company, or its product. 29. Unlawful, improper or unseeming conduct on or off the Company premises or dunng non- working hours which affects the employee's rela- tionship to his/her job, to his/her fellow employ- ees or to his/her supervisors, or affecting the Company's product reputation or goodwill in the community. Our investigation has revealed that you did, indeed, violate these rules. The seriousness of these violations warrants your immediate discharge. Your suspension of January 22, 1987 is converted to an immediate discharge. Your discharge under Rules 18 and 29 is based on the following: would not have told Flannery or others in 1985 that differing numbers of merit increases had been given . Flannery testified Sandhage told him 20 merit increases had been given in 1985, but he later stated, in a conversa- tion he had with Donna Pazdera Conner, that 12 had been given in 1985 As a rebuttal witness, Jane Habig credibly testified Sandhage told her in late December 1985 that 11 merit increases had been given and he was giving her a 30-cent merit increase effective immediately She credibly testified her increase was delayed until January 1986, and that Sandhage called her to the office at that time to tell her the increase was a pay adjustment rather than a merit increase Flannery and Habig were credi- ble witnesses and I believe them. I am convinced Flannery sought in his article to state what he honestly believed Sandhage had said to him and others about merit increases given in 1985 16 Halva testified reporter Jenny Key and receptionist Ruthie Day ap- proached her to discuss office reaction to the article at some unstated time 17 Sandhage summarized Respondent's editorial and/or news policy in- dicating it is that Respondent will be a local newspaper, will be authon- tative, and will be trustworthy and honest He testified the ethics policy requires that employees be objective, truthful, fair, and balanced when re- porting news 18 The reporter job description requires that reporters "maintain a positive public relations image for the newspapers " See R Exh 7 19 G C Exh 9 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Your conduct and the article you authored in the Cincinnati Review, injured the reputation, image, integrity and truthfulness of Cincinnati Suburban Press newspapers, its management, and has embar- rassed, humiliated and ridiculed your fellow em- ployees. Your disruptive conduct has impaired employee relationships with fellow employees and our super- visors. The parties stipulated that Supervisor James Sulkin was terminated for violating company rules 18 and 29 in January 1986 because work stopped on an occasion when he agreed vocally with an employee that a union was needed at Respondent. Additionally, Halva testified an executive in another subsidiary of SCC was terminat- ed pursuant to rules 18 and 29 because he uttered a slan- derous remark. Analysis and Conclusions To sustain the complaint allegation that Flannery was suspended and thereafter terminated by Respondent be- cause he engaged in protected concerted activity, the General Counsel's evidentiary burden was to prove: (1) that Flannery engaged in "concerted" activity; (2) that the activity was protected; (3) that Respondent was aware of the concerted nature of the activity; and (4) that Respondent suspended and thereafter discharged Flannery because he engaged in protected activity. Obviously, a threshold issue in this case is whether Flannery engaged in "concerted" activity within the meaning of Section 7 of the Act when he prepared "Dirty Tricks in the Newsroom." Although the record reveals he obtained information set forth in the article from other employees, it is clear he did not discuss his intention to write and publish the article with other em- ployees before he acted. Notwithstanding the fact that he alone prepared and caused the article to be published, the General Counsel contends his activity was "concert- ed" as it constituted a continuation of the organizational activity he and other employees were engaged in imme- diately prior to the time the article was written and pub- lished. Emphasizing the fact that Flannery prepared the arti- cle without first discussing it, or revealing his intention to write it, with other employees, Respondent contends Flannery's activity was not "concerted." It further con- tends the activity under consideration was divorced from the organization campaign then in progress as the article made no reference whatsoever to an ongoing union cam- paign. It contends the article merely constituted an anat- omy of a union campaign, which had occurred some 9 months before the article was written and published. The Board's broad definition of "concerted activity" is set forth in Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers 1). There it stated: In general, to find an employee's activity to be "concerted," we shall require that it be engaged in with, or on the authority of other employees, and not solely by and on behalf of the employee him- self. The above definition was restated and futher explained in Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers II). There the Board observed: We reiterate, our definition of concerted activity in Meyers I encompasses those circumstances where in- dividual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management. Applying the foregoing principles to the facts in the instant case, I find the General Counsel has failed to prove that Flannery engaged in "concerted activity" when he wrote "Dirty Tricks in the Newsroom." To es- tablish that the activity was concerted, the General Counsel was obligated to prove that: (1) the activity was undertaken "with, or on the authority of other employ- ees" (Meyers 1); or (2) that, by engaging in the activity, the employees sought to "initiate or to induce or to pre- pare for group action" (Meyers II). Noting the facts, supra, reveal Flannery did not discuss the content of his article, or his intention to write it, with other employees before it was prepared and published, I am precluded from finding Flannery's activity was engaged in "with, or on the authority of other employees." Similarly, in my view, the facts in this case do not warrant a finding that the article under consideration was written to "initiate or to induce or to prepare for group action." The General Counsel's principal conten- tion is that the testimony and evidence, which reveal Flannery was engaged in an ongoing organization cam- paign with other employees, adequately placed Respond- ent on notice of the fact that his composition of the "Dirty Tricks in the Newsroom" constitute concerted activity. Noting the article makes absolutely no reference to an ongoing union campaign, I find it failed to place Respondent on notice that the article was part and parcel of the ongoing union campaign. Second, the General Counsel adduced what I consider to be subjective testi- mony, which was to the effect that: Flannery intended to gain the support of outside union supporters and employ- ees in the ongoing campaign by composing the article; copies of the article were distributed to employees after it was published; and, when the article was produced at the 21 January employee meeting, there was discussion concerning possible use of the article as background in the ongoing organizational campaign . I attach minimal significance to such subjective testimony because the record clearly fails to reveal Flannery's reasons for com- posing the article were known by Respondent, and it fails to reveal Respondent was aware that copies of the article had been distributed among employees or that the article had been discussed at a meeting of employees. In the final analysis, I, in agreement with Respondent, con- clude that, in the circumstances of this case, the content of the article must be viewed to determine whether it was intended to "initiate or induce or prepare for group action." Clearly, the article, which fails to request or suggest that persons who read it should take any action whatsoever, fails to reveal it was composed or published to "initiate or induce or prepare for group action." CINCINNATI SUBURBAN PRESS In sum, for the reasons stated, I find that the General Counsel has failed to prove that Flannery was engaged in concerted activity when he wrote and published "Dirty Tricks in the Newsroom." Additionally, I find the record fails to reveal that Respondent was aware, at the time it suspended and subsequently discharged Flan- nery, that he was engaged in concerted activity when he wrote and/or published the article under discussion. In the circumstances described, Respondent did not violate the Act as alleged by suspending and thereafter terminat- ing Flannery because he wrote the article. Accordingly, I recommend that those portions of the complaint that allege the employee was suspended and discharged in violation of Section 8(a)(1) and (3) be dismissed. Remaining is resolution of the issues raised by para- graph 5 of the complaint. There, the General Counsel al- leges that by promulgating and maintaining rules 18 and 29 since August 23, 1986, Respondent violated Section 8(a)(1) of the Act. The record, specifically Flannery's testimony, reveals rules 18 and 29 have been set forth in Respondent's em- ployee handbook since at least November 1984. As it is clear the rules were promulgated far beyond the 10(b) period, the promulgation allegation is without merit.20 As noted above, the rules under discussion are con- tained in Respondent's employee handbook, which is given to employees when they are hired. They prohibit employees from: 18. Making false, vicious or malicious statements concerning any employee, supervisor, the Compa- ny, or its product. 29. Unlawful, improper or unseeming conduct on or off the Company premises or during non-work- ing hours which affects the employee's relationship to his/her job, to his/her fellow employees or to his/her supervisors, or affecting the Company's product reputation or goodwill in the community. In support of the contention that rule 18 was unlawful- ly maintained, the General Counsel cites American Cast Iron Pipe Co., 234 NLRB 1123 (1978), enfd. 600 F.2d 132 (8th Cir. 1979), and Spartan Plastics, 269 NLRB 546, 552 (1984). In American Cast Iron, the Board considered the legality of three (3) rules: (1) rule 27, which prohibited distribution on company property of any "written or printed matter of any description not in the performance of company business without Company permission"; (2) rule 29, which prohibited "Making false, vicious or mali- cious verbal statements concerning any employee, the Company or its products and methods of manufacture"; and, (3) rule 30, which prohibited "Distribution of false, vicious or malicious written statements about any em- ployee, the Company, its products or methods of manu- facture on Company property." The Board affirmed without comment, Judge Leiner's finding that rules 29 and 30 were unlawful per se because they prohibited and punished the merely "false," as opposed to the "vicious or malicious," and were therefore overbroad. 20 At some earlier time, rule 29 was apparently numbered rule 31 in the employee handbook, but the text has not vaned 975 When enforcing the Board's Order in American Cast Iron, the Eighth Circuit stated, "We agree with the Board that the major flaw in both rules (29 and 30) is that they proscribe `false' as well as `vicious or malicious' statements." The court then observed (at 137): It is well-established that, while employers may proscribe "maliciously false" statements, employers may not proscribe and punish for publication of "false" statements. Texaco, Inc. v. NLRB, 462 F.2d 812, 815 (3d Cir.), cert denied, 409 U.S. 1008, 93 S.Ct. 442, 34 L.Ed.2d 302 (1972); Owens-Corning Fi- berglas Corp. v. NLRB, 407 F.2d 1357, 1366 (4th Cir. 1969). Punishing employees for distributing merely "false" statements fails to define the area of permissible conduct in a manner clear to employees and thus causes employees to refrain from engaging in protected activities. In the instant case, Respondent's rule 18 is substantially identical to rule 29, which was considered by the Board and the court in American Cast Iron. It is unlawful, as al- leged, for the reasons set forth above. In my view, the court's reasoning in American Cast Iron applies with equal force to Respondent's rule 29. By prohibiting improper or unseeming" conduct on and off the company premises, the rule fails to define the area of permissible conduct in a manner clear to employees. Viewing Respondent's actions in the instant case, which presented a close "concerted" activity issue, employees may reasonably assume that Respondent may utilize rule 29 to punish them for engaging in lawful protected con- certed activity in the future because it considers such ac- tivity to be "improper or unseeming." Thus, rule 29 may well cause employees to refrain from engaging in pro- tected activities. In sum, I find, for the reasons indicated, that, by main- taining rules 18 and 29 since 23 August 1986, Respondent violated Section 8(a)(1) of the Act as alleged. CONCLUSIONS OF LAW 1. Cincinnati Suburban Press, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Guild is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By maintaining rules that prohibit employees from making "false" statements or engaging in "improper" or "unseeming" conduct on and off company premises without clearly defining areas of permissible conduct in a manner clear to employees, Respondent caused and is causing employees to refrain from engaging in protected activities in violation of Section 8(a)(1) of the Act. 4. Respondent did not violate Section 8(a)(1) and (3) of the Act by suspending Gregory Flannery on 22 Janu- ary 1987, or by terminating his employment on 2 Febru- ary 1987. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dered to cease and desist therefrom and take certain af- with the order in this case will pose no complicated firmative action designed to effectuate the policies of the problems. Accordingly, the request is denied. Act. [Recommended Order omitted from publication.] The General Counsel requests that a visitatorial clause be included in any order issued in this case. Compliance