Chinese Daily News

National Labor Relations Board - Board Decisions

Apr 17, 2006

346 N.L.R.B. 906 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 81
906
Chinese Daily News and The Newspaper Guild,
Communications Workers of America, AFL–
CIO. Cases 21–CA–34626–1, 21–CA–34717, 21–
CA–35041, 21–CA–35063, 21–CA–35110–1, 21–
CA–352111, 21–CA–35329, 21–CA–35429, 21–
CA–35482, 21–CA–35497, 21–CA–35637, 21–
CA–35655, 21–CA–35736, and 21–CA–36157
April 17, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 25, 2005, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent and the General Counsel filed exceptions, sup-
porting briefs, and answering briefs; and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated 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,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied.
I. INTRODUCTION
The Respondent is a major Chinese-language daily
newspaper published in southern California. In October
2000, the Union filed a representation petition seeking to
represent a wall-to-wall unit of approximately 150 em-
ployees in the Respondent’s Monterey Park facility. An
election was held on March 19, 2001, and the Union re-
ceived a majority of valid votes cast. The Respondent
objected to the election results, and during the pendency
of the Board’s resolution of the representation proceed-
ing, the Union filed numerous unfair labor practice alle-
gations in 14 separate charges from June 2001 through
February 2004.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 On June 30, 2005, the Board set aside the election and ordered a
second election. 344 NLRB 1071 (2005). The Board conducted a
second election on September 23, 2005. The tally of ballots showed 52
votes for and 92 votes against the Union, with 12 challenged ballots. In
the absence of objections, the Board certified the results on October 3,
2005.
II. DISCUSSION
A. The 8(a)(1) Violations
The judge reviewed 17 separate allegations charging
that the Respondent violated Section 8(a)(1) by interfer-
ing with, restraining, or coercing its employees in the
exercise of their Section 7 rights.
For the reasons stated by the judge, we adopt his find-
ings that the Respondent violated Section 8(a)(1) through
the following conduct: threatening employees with un-
specified reprisals for engaging in union activities; tell-
ing reporter Lynne Wang to resign if she wasn’t happy
with her job; threatening that employees’ bonuses would
be reduced because of legal expenses the Respondent
would be forced to incur to fight the Union; distributing a
memo prohibiting employee discussions of union mat-
ters, and threatening employees with termination for such
discussions;3 stating that if employees helped the Re-
spondent break up the Union, the Respondent was going
to solve all the Company’s problems; instructing em-
ployees not to meet together to discuss terms and condi-
tions of employment without the city editor’s presence;4
threatening Wang for remarks made at a union rally;
threatening to promote Foreman Ming Chiang to director
in retaliation for the employees’ petition to remove
Chiang as foreman;5 and interrogating employees about
protected activities.6
As to the allegation that the Respondent unlawfully
threatened to reduce employee bonuses because of legal
expenses it would incur in fighting the Union, we note
that, in late October 2001, Chief Editor Shih-Yaw Chen
established weekly mandatory meetings for reporters in
the evenings after work hours. The reporters protested,
and Wang wrote a letter to Chen on their behalf suggest-
ing alternative meeting times and means of communica-

3 In finding the violation, Member Schaumber relies specifically on
the selective nature of the policy, which targets discussion of union-
related matters and which employees could reasonably construe as
prohibiting Sec. 7 activity. See Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004).
4 We reject the Respondent’s defense that it cured this alleged viola-
tion under Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
in a July 16 memo. The instruction was given at a June 6 meeting of
reporters. The July 16 memo was sent only to Wang. Thus, under
Passavant, the scope of the repudiation was not coextensive with the
scope of the instruction. Without necessarily agreeing with Passavant,
the Chairman and Member Schaumber find that the Respondent failed
to effectively repudiate this violation.
5 Member Schaumber finds it unnecessary to pass on this allegation
because the violation and remedy are duplicative of other unlawful
threats found in this case.
6 In adopting the judge’s finding that the Respondent engaged in
unlawful interrogations, Chairman Battista finds it unnecessary to pass
on complaint par. 17, as it is cumulative and would not affect the rem-
edy.
CHINESE DAILY NEWS 907
tion. At the first meeting on November 5, Chen told
Wang that she could resign if she wasn’t happy with his
decision (see violation above). At the second meeting on
November 12, Chen discussed the contents of Wang’s
letter and dismissed the reporters’ suggestions for alter-
natives to the evening meetings. Wang testified that dur-
ing this discussion, Chen berated her for taking notes:
You are taking notes and will give to the union staff
and sue the company. Every little thing you will sue
the company. He said, that the company had to hire a
lawyer to defend and increase the expense of the com-
pany, decrease the profits of the company, will have
negative impact on the employees’ benefits, including
the yearly end bonus.
Our dissenting colleague agrees with the Respondent’s
contention that Chen’s statement to Wang about em-
ployee benefits and bonuses was an objective economic
prediction and, thus, did not violate the Act. We dis-
agree and find that Chen’s statement was not an objec-
tive prediction but a threat of adverse consequences for
engaging in protected activity. Chen’s statement was
directed towards Wang’s individual activity in support of
the Union and suggested that she would be personally
responsible for causing reductions in employees’ yearend
bonuses and other benefits. Moreover, Chen was not
responding to questions or comments during normal
workplace conversations; he spontaneously raised
Wang’s note taking, assumed that the notes would lead to
a union lawsuit, and, thus, connected the notes to adverse
effects on employees’ benefits.
Under NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), a lawful prediction must be based on “objective
fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control.” Id. at 618.
The judge found that Chen’s statement about reduced
employee benefits was not objectively true; rather, the
judge found it to be a threat, “even if it is objectively true
to some degree however small” (emphasis added). The
judge further noted that the Respondent presented no
evidence to establish any necessary correlation between
costs incurred by the Respondent in connection with the
union campaign and the continuation of existing yearend
bonuses or other employee benefits. In this regard,
Chen’s statement differs significantly from the predic-
tions found lawful by the Board in the cases relied upon
by our colleague.
For example, in Rospatch Corp., 193 NLRB 772
(1971), cited below, the employer presented its employ-
ees with specific facts and data comparing its existing
benefits to the benefits of local unionized employers.
The company president stated that voting in the union
would require the employer to incur legal expenses that
would reduce profits and hence reduce the employer’s
profit-sharing contributions. The Board concluded that
this statement constituted an economic prediction be-
cause a reduction of profits, for whatever reason, would
have a direct and necessary impact on the employer’s
contributions to its profit-sharing plan, which contribu-
tions were fixed at 10 percent of net annual pretax prof-
its. Id. at 773.
By contrast, Chen baldly asserted that Wang’s note
taking would lead to suits by the Union resulting in legal
costs, reduced profits, and reduced employee bonuses,
but the Respondent offered no objective evidence to di-
rectly connect the several links in this speculative chain
of events. More importantly, even if Wang’s note taking
could be reasonably connected to lost profits, the Re-
spondent did not establish a direct link between alleged
lost profits and reduced employee benefits and yearend
bonuses. See Pilot Freight Carriers, Inc., 223 NLRB
286 fn. 1 (1976) (finding an 8(a)(1) violation where em-
ployer told employees, without any objective evidence,
that $10,000 spent to counter the union’s campaign
would have gone directly to employees’ compensation
but for the union, and that any money he spent in the
future to fight the union would come directly out of em-
ployees’ paychecks).7

7 Member Liebman further notes that the Respondent’s strategy in
countering the organizing campaign—and its expenditure of legal fees
as a part of this strategy—appears to be a matter entirely within the
Respondent’s control, not a demonstrably probable consequence be-
yond its control, as required by Gissel. Moreover, the statements re-
garding the reduction of bonuses came at a time when the Respondent
had already committed a number of unfair labor practices, including
threats of job loss. Significantly, such was not the case in Rospatch
Corp., supra, or Wilmington Heating Service, 173 NLRB 68 (1968), the
cases cited by the Chairman. In Rospatch, the respondent’s statement
that it may have to reduce its profit-sharing contributions if it became
unionized was not made in the context of any other unfair labor prac-
tices. In Wilmington Heating Service, the respondent violated Sec.
8(a)(1) by granting preelection wage increases and Sec. 8(a)(5) by
refusing to recognize and bargain with the union. However, unlike in
this case, the respondent in Wilmington did not commit numerous vio-
lations of the Act, nor did it threaten employees with job loss if they
engaged in Sec. 7 activity. In any event, as the Gissel Court pointed
out, an employer’s statements must be judged “in the context of its
labor relations setting.” Gissel, 395 U.S. at 617. Accordingly, in view
of the background of unfair labor practices against which the statement
was made, and for the other reasons discussed above, the Respondent’s
statement regarding the reduction of bonuses did not constitute a lawful
prediction, but rather a threat that employees would lose benefits if they
continued to engage in Sec. 7 activity.
Contrary to the judge and his colleagues, Chairman Battista does not
find this violation. The judge found that Chen informed reporters, at a
meeting, that lawyers’ fees increased the expenses of the Company,
which decreased the profits, negatively impacting employees’ benefits,
including the yearend bonuses. This statement was a prediction of
economic consequences, not a threat of economic reprisals. It is eco-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD908
In addition, we adopt the judge’s recommendation to
dismiss the General Counsel’s allegation that the Re-
spondent posted antiunion newsletters near reporter
Wang’s desk to intimidate and humiliate her for her un-
ion activity.8
Contrary to the judge and our dissenting colleague, we
do not find that the Respondent’s newsletter of June 6,
2001, violated Section 8(a)(1). The newsletter, “Let the
Truth Speak Out,” contained two pages of information
about current and future changes in employees’ working

nomic common sense that lawsuits involve legal fee expenses, that such
expenses decrease profits, and that decreased profits mean, inter alia,
lower bonuses. In this latter regard, the judge found that bonuses are
dependent upon “general institutional performance.” The Board has
found no violation under similar circumstances. See Rospatch Corp.,
supra; Wilmington Heating, supra.
The majority seeks to distinguish Rospatch because there the em-
ployer assertedly presented its employees with “specific facts and data
comparing its existing benefits to the benefits of local unionized em-
ployers.” But that does not change the essential nature of the statement
that the Board found lawful. With respect to the issue that is relevant
here (legal expenses), the employer there did not spell out the legal
expenses. Indeed, such matters are difficult to know in advance with
any precision. And yet, the Board found that the respondent’s agent
“merely predicted a possible economic consequence,” and was not
making a “threat of reprisal.” Here, similar to Rospatch, Chen did not
spell out what the legal expenses would be. He merely made the obser-
vation that expenses reduce profits, and reduced profits could impact
bonuses.
On the other hand, the Board’s finding of a violation in Pilot Freight
Carriers, Inc., cited by the majority above, is distinguishable—for there
the “vice” was the employer’s assertion that “but for the Union the
employees would have received $10,000 . . . .” Here, Chen simply set
forth his basis for predicting the economic consequences of lawyer fees
on profits and, thus, on benefits—a statement closer to that found law-
ful in Rospatch than that found unlawful in Pilot Freight.
Chairman Battista also notes that Member Liebman seeks to distin-
guish Wilmington by arguing that the “context” there differed from the
context here because, in Wilmington, the respondent neither committed
numerous violations nor threatened job loss. She acknowledges, how-
ever, that the statements found lawful in Wilmington were committed
within the context of both 8(a)(1) and (5) unfair labor practices.
Chairman Battista does not find the differences between Wilmington
and the instant case significant enough to warrant a different result.
The 8(a)(1) violation there (grant of a wage increase) was a hallmark
violation. See NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212 (2d
Cir. 1980). The 8(a)(5) violation there was a complete refusal to rec-
ognize and bargain. Despite this, the statement comparable to the one
involved herein was not found to be unlawful. Finally, even if Chen
singled Wang out for his comments, that does not change the prediction
into a threat. Similarly, even if other remarks of Chen were threats, that
does not convert the instant prediction into a threat.
Accordingly, the Chairman finds Chen’s statement to be lawful and
would not find this violation.
8 In adopting the judge’s recommendation to dismiss, Chairman Bat-
tista relies on the judge’s findings that the “record does not identify the
poster” and “there is no evidence other than the simple posting of the
documents to connect the Respondent to an effort to humiliate Wang.”
The judge further recommended the dismissal of complaint pars.
7(f), 8(a), (b), and (e), 14, 15, and 20. In the absence of exceptions, we
adopt these recommendations.
conditions at the newspaper. Specifically, the newsletter
explained recent improvements in employees’ health
insurance and discussed the possible implementation of
new printing technology (CTP—Computer to Plate).
The letter stated that the newspaper’s general manage-
ment department in Taipei had directed it to conduct a
study on the use of CTP at the Los Angeles bureau but
that no decision had been made about its implementation.
Although the new technology might lead to employee
layoffs, it was important for the newspaper to keep cur-
rent with its parent company in China, from which it
received 85 percent of its daily news copy, and with
trends in the print industry. The newsletter’s tone was
informational, not threatening.
The newsletter included a paragraph stating that “his-
tory and actual data” indicate that the costs of running a
business increase where employees are represented by a
labor union. The judge found that by mentioning poten-
tial layoffs and union-related costs in the same letter, the
Respondent was implicitly threatening employees with
layoffs if the Union were elected to represent them. We
find that the General Counsel has not demonstrated by a
preponderance of the evidence that the newsletter threat-
ened or predicted layoffs if the Union were certified as
the employees’ bargaining representative.
As noted above, under Gissel, a lawful prediction must
be based on “objective fact to convey an employer’s be-
lief as to demonstrably probable consequences beyond
his control.” 395 U.S. at 618. The newsletter states that
the Respondent was ordered to study the efficacy of
CTP, and refers to the economic reality that the newspa-
per must keep pace with its parent company and with the
industry as a whole to remain competitive, indicating that
the ultimate decision regarding CTP will be driven by
external economic factors and management decisions
beyond the Respondent’s control. Thus, we do not find
that the newsletter states an unlawful prediction related
to union activity.9

9 Although the parent company ordered the study of CTP, our col-
league suggests that the parent would not control the ultimate decision
regarding CTP. We see no basis for a finding that the parent, having
ordered the study, would leave the ultimate decision to the Respondent.
In Chairman Battista’s view, a threat related to union activity may
well be unlawful. By contrast, a prediction as to the economic conse-
quences of unionization would be lawful. In the Chairman’s view, the
Respondent’s statements fall into the latter category: predictions that
unionization could lead to higher costs, and that economic measures
might have to be taken in anticipation of such higher costs.
The judge analyzed this issue using the Respondent’s translation of
the newsletter. While Chairman Battista would find no violation under
either translation, he notes that the General Counsel’s own transla-
tion—“in order to save for the rainy day and prepare for the unex-
pected”—is even more benign.
CHINESE DAILY NEWS 909
More importantly, although the judge and the dissent
apparently conclude that the Respondent’s references to
“protective measures” and “precautions against a calam-
ity” are responses to unionization, these are mere as-
sumptions. Reasonably read, these statements refer to
the factors cited in the newsletter that can affect the
newspaper’s economic health, as well as the Respon-
dent’s resolution to “conserve costs . . . , enhance effi-
ciency, maintain its business’s right to exist, and protect
employees’ due interest.” In short, the alleged connec-
tion between the Union’s presence and potential imple-
mentation of new technology is too attenuated and vague
to constitute an unlawful threat. Merely including the
two subjects in the same newsletter, without more, does
not suggest a connection or constitute a threat. There-
fore, we reverse the judge and dismiss the allegation.
B. The 8(a)(3) and (4) Violations
For the reasons stated by the judge, we find that the
Respondent did not violate Section 8(a)(3) or (4) through
the following conduct, and we adopt his recommenda-
tions to dismiss these allegations: announcing its inten-
tion to reassign reporter Wang to different beats on June
1, 2001; announcing to reporters that the paper’s call-in
policy was to make personal contact with someone in the
office in such cases when a reporter could not cover an
assignment; warning an editor for his numerous editorial
mistakes and his failure to improve; decreasing certain
employees’ evaluation ratings and corresponding bo-
nuses; and suspending and discharging driver Jing Hua
Zhang based on a reasonable belief that he was stealing
newspapers.
In addition, we adopt the judge’s finding that the Re-
spondent’s decision to increase Wang’s beats after she
protested against the Respondent’s proposed beat
changes violated Section 8(a)(3) and (1). On June 1,
2001, the Respondent announced its intention to reassign
several reporters, including Wang, to different beats.
The evidence showed that the Respondent periodically
changed reporters’ beats so that reporters did not become
stale covering the same areas over many years. In re-
sponse to the proposed changes, Wang, on behalf of her-
self and the other affected reporters, sent a letter to the
Respondent protesting the changes and requesting modi-
fications to the assignments. Following her letter, the
Respondent revised its proposed reassignments, in many
cases according to Wang’s recommendations, and im-
plemented the changes on July 1, 2001. Wang, however,
received additional beat assignments—government bene-
fits, welfare, and senior affairs—and no corresponding
reduction to her assignments, even though she had com-
plained in her letter that her new beats were more oner-
ous than her former beats. The General Counsel met its
initial burden by showing that the Respondent’s decision
to increase Wang’s assignments was motivated by
Wang’s protected activities, and the Respondent failed to
show by a preponderance of the evidence that it would
have given Wang additional beats in the absence of those
activities. Specifically, the Respondent offered no justi-
fication for increasing Wang’s workload following her
letter.
REMEDY
The General Counsel requested that a responsible offi-
cial of the Respondent read the notice to the assembled
employees. We find, contrary to our dissenting col-
league, that this extraordinary remedy is not warranted in
this case, and neither the General Counsel nor the dissent
have offered any evidence to show that the Board’s tradi-
tional remedies are insufficient. The dissent refers to
“the lingering effects of the Respondent’s conduct.” The
conduct occurred over 4 years ago, and the extent of any
“lingering” is not at all clear. In short, there is no show-
ing that posting the Board’s notice (in English and Chi-
nese) is an insufficient remedy under the circumstances,
and we adopt the judge’s recommendation to deny this
request.
2. The judge has requested that the Board translate his
lengthy decision and any subsequent decisions into Chi-
nese and make copies available for interested parties.
We find no precedent for such a requirement, and under
the circumstances, creating such translations would be a
significant cost to the Agency. In addition, we agree
with the General Counsel that such translations would
not further the remedial purposes of the Act. Thus, we
deny the judge’s request to provide such translations.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Chinese
Daily News, Monterey Park, California, its officers,
agents, successors, and assigns, shall take the actions set
forth in the Order as modified.
1. Delete paragraph 1(g) and reletter the subsequent
paragraphs accordingly.
2. Substitute the following for relettered paragraph
1(m).
“(m) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the National
Labor Relations Act.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD910
MEMBER LIEBMAN, dissenting in part.
I join in all parts of the majority’s decision but two.
First, I would adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by discussing in a
newsletter entitled “Let the Truth Speak Out”1 the im-
plementation of Computer to Plate (CTP)2 technology
and the possibility of job elimination resulting from that
technology. The newsletter, which the Respondent dis-
tributed to employees on or about June 6, 2001,3 con-
tained an article that explains the CTP technology in
some detail. The article asserts that the implementation
of CTP would reduce staffing requirements with respect
to editing, news coverage, and printing. It further states
that, in response to employee concerns over possible job
elimination, the Respondent wished to inform employees
of several matters, which are discussed in four numbered
paragraphs. The first of these paragraphs, according to
the Respondent’s translation from Chinese to English,
states that the Respondent is studying the implementation
of CTP and advises employees that technological change
cannot be resisted. The second numbered paragraph
states:
[H]istory and actual data have told us that the cost of
running an enterprise that has [a] labor union in-
crease[s] significantly. In order to take protective
measures in advance and to take precautions against a
calamity, the Newspaper Agency must consider all op-
tions and alternatives, from various cost-cutting meas-
ures to enhancement of efficiency, with the objectives
of maintaining the survivability of the enterprise as
well as protecting the vested interests of the staff.
The third- and fourth-numbered paragraphs respec-
tively state that no decision on the implementation of
CTP has been made and that the Respondent would con-
sider its technology choices with fairness to its employ-
ees in mind. The article concludes with the statement
that “[o]nly the Newspaper Agency can give our col-
leagues more welfare and benefit. It has always been
like that in the past without a labor union.”4

1 The Respondent occasionally distributed these newsletters to em-
ployees; the newsletters generally discussed the Respondent’s views on
various matters relevant to the union campaign and subsequent em-
ployee activities.
2 CTP allows for computer-generated paperless production of a
newspaper from the writing and editing stages through the preprinting
stage.
3 All dates are in 2001, unless otherwise noted.
4 This language is from the Respondent’s translation of the article.
In the General Counsel’s and the Charging Party’s version of the arti-
cle, the corresponding statement reads, “We do not need the union—we
have never needed it.”
The judge, in deciding that the statements in the CTP
article violated Section 8(a)(1), found that the Respon-
dent’s predictions about possible job elimination as a
result of CTP were not based on demonstrably probable
consequences beyond the Respondent’s control, as re-
quired by NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). Rather, the judge found
First, the Respondent based its prediction of increased
costs on “history and actual data” when costs at such a
macro level are largely within the control of the em-
ployer. Second and importantly here, the Respondent
states that the actions it may take regarding technologi-
cal change will be “protective measures” taken “in ad-
vance . . . precautions against a calamity.” This state-
ment describes ominously a process of decision-
making and events entirely within the Respondent’s
control and not dependent on economic circumstances
but in anticipation of unionization.
Thus, the judge found that, viewing these communications
in the context of the record as a whole, the Respondent’s
statements about the implementation of CTP would rea-
sonably be perceived by the Respondent’s employees as
threats of job elimination if they unionized.
The majority, in reversing this finding, asserts that the
decision as to whether to implement CTP is beyond the
Respondent’s control and that “[t]he alleged connection
between the Union’s presence and potential implementa-
tion of new technology is too attenuated and vague to
constitute an unlawful threat” and “merely including the
two subjects in the same newsletter, without more, does
not suggest a connection or constitute a threat.” I dis-
agree.
Initially, contrary to the majority, the connection the
article makes between unionization, the implementation
of CTP, and the elimination of jobs is anything but “at-
tenuated and vague.” The article, which appeared in an
edition of the Respondent’s antiunion newsletter, explic-
itly states that the Respondent is considering the imple-
mentation of CTP as a cost-cutting measure and that CTP
would result in the elimination of jobs. The article then
goes on to say that the Respondent is aware that running
a unionized workplace increases costs and the Respon-
dent would therefore need to take “protective measures
in advance and to take precautions against a calamity” by
considering “cost-cutting measures” (i.e., CTP). In my
view, and likely in the view of a reasonable employee
who read the article, these statements could not send a
clearer message: that is, that the Respondent is consider-
ing “protecting” itself from possible unionization by im-
plementing CTP and eliminating jobs.
CHINESE DAILY NEWS 911
While an employer’s predictions that jobs might be
eliminated as a result of unionization do not always con-
stitute unlawful threats, such is not the case here. In Gis-
sel, 395 U.S. at 618, the Court, in distinguishing between
lawful and unlawful employer predictions, said:
A prediction must be carefully phrased on the basis of
objective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control
. . . . If there is any implication that an employer may or
may not take action solely on his own initiative for rea-
sons unrelated to economic necessities and known only
to him, the statement is no longer a reasonable predic-
tion based on available facts but a threat of retaliation
based on misrepresentation and coercion, and as such
without the protection of the First Amendment. [Em-
phasis added.]
The Gissel Court also recognized that an employer’s re-
marks must be analyzed “in the context of its labor relations
setting.” Id. at 617.
Applying these principles here, the Respondent’s
statements in the CTP article constitute threats, not law-
ful predictions based on objective fact. The bald asser-
tion that “history and actual data” show that running a
unionized workplace increases costs—absent some sup-
porting evidence to this effect—hardly rises to the level
of an “objective fact” under Gissel. Further, the Re-
spondent’s use of the words “protective measures,” “in
advance,” and “precautions against a calamity” in the
context of discussing the issues of CTP and unionization
clearly indicate that the Respondent may, on its own ini-
tiative, decide to implement CTP to “protect” itself from
the alleged costs of running a unionized workplace be-
fore it is unionized and before it has actually incurred
such costs. Thus, as the judge found, the Respondent’s
decision regarding whether to implement CTP appears to
be dependent not on economic considerations beyond the
Respondent’s control, but on the Respondent’s desire to
discourage employees from further organizational efforts
by advising them that it may respond to those efforts by
implementing a job-eliminating technology.5

5 The majority contends that the Respondent’s decision as to whether
to implement CTP—and in turn, eliminate jobs—will be “driven by
external economic factors and management decisions beyond the Re-
spondent’s control.” As a “management decision” that is allegedly
beyond the Respondent’s control, the majority points to the fact that the
Respondent was ordered to study CTP by its parent company. Further,
as an “external economic factor,” the majority cites the Respondent’s
need to remain “competitive” within its industry. Under Gissel, the
Respondent has the burden of showing that its prediction of job elimi-
nation as a result of CTP has been “carefully made on the basis of
objective fact to convey [its] belief as to demonstrably probable conse-
quences beyond its control.” See Gissel, supra at 618; see also
Additionally, “in the context of the [Respondent’s] la-
bor relations setting,” the Respondent’s message regard-
ing CTP is even more threatening. Some of the highest-
ranking management officials engaged in various unlaw-
ful acts prior to—and even on the same day as—the Re-
spondent distributed the CTP article to employees. On
June 6, the same day that the article was distributed, the
Respondent’s city editor, Jeff Horng, unlawfully in-
structed employees that they were prohibited from dis-
cussing union matters outside of his presence. In addi-
tion, several months prior, in January or February, Re-
spondent President Ming-Sheng Su unlawfully solicited
employee grievances and promised employees benefits if
they abandoned their support for the Union. Further, in
February, Editor-in-Chief Shih-Yaw Chen violated Sec-
tion 8(a)(1) by threatening union supporter Lynne Wang
with discharge for engaging in union activities.
Given these circumstances, the judge correctly found
that the statements made by the Respondent in the CTP
article would reasonably be construed by employees as
unlawful threats of job elimination. I would, therefore,
adopt his finding that the statements violated Section
8(a)(1).
Second, unlike my colleagues and the judge, I would
grant the General Counsel’s request that a responsible
management official read the attached notice aloud to
employees assembled for that purpose. This remedy is
generally imposed in cases “where the violations are so
numerous and serious that the reading aloud of the notice
is considered necessary to enable employees to exercise
their Section 7 rights in an atmosphere free of coercion,
or where the violations in a case are egregious.” Postal
Service, 339 NLRB 1162, 1163 (2003) (citing Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001)). In my
view, this is such a case. We have found that the Re-
spondent has engaged in approximately 13 unfair labor
practices, including threats, interrogations, unlawful so-

Schaumberg Hyundai, Inc., 318 NLRB 449, 450 (1995). In this case,
the Respondent has failed to make such a showing. Initially, contrary
to the majority, the fact that the Respondent’s parent company ordered
it to study CTP does not constitute evidence that the Respondent would
have no control over the decision to implement CTP in the future. In
any event, the majority assumes that, because the Respondent’s parent
company ordered the CTP study, it would likely retain control over this
decision. However, there is no evidence in the record to support the
majority’s assumption. Likewise, there is no evidence to support the
Respondent’s assertion that, if the Respondent were to become union-
ized, it could not remain competitive without implementing CTP and
eliminating jobs. Accordingly, in the absence of some evidence to
support the notion that the decision regarding whether to implement
CTP is truly beyond the Respondent’s control, the generic references
that the Respondent, and the majority, have made to “management
decisions,” “external economic factors,” competitiveness, and the like
hardly rise to the level of objective fact under Gissel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD912
licitation of grievances and promises of benefits; instruc-
tions to employees to abandon their support of the Un-
ion; unlawful work rules; imposition of more onerous
terms and conditions of employment; and even “hall-
mark” violations of the Act (e.g., threats of job loss).
And a majority of these unfair labor practices were
committed directly by the Respondent’s president, Su, or
other high-ranking management officials—such as Edi-
tor-in-Chief Chen and City Editor Horng. See Consec
Security, 325 NLRB 453, 454–455 (1998), enfd. 185
F.3d 862 (3d Cir. 1999) (recognizing that participation of
high-ranking management officials in unfair labor prac-
tices compounds the coercive effect of the unfair labor
practices). In these circumstances, additional remedial
action is necessary to dissipate the lingering effects of
the Respondent’s unlawful conduct and to ensure the
further protection of employees’ Section 7 rights. As the
Board has previously observed, “The public reading of a
notice is an ‘effective but moderate way to let in a warm-
ing wind of information and, more important, reassur-
ance.’” U.S. Service Industries, 319 NLRB 231, 232
(1995) (quoting J. P. Stevens & Co. v. NLRB, 417 F.2d
533, 540 (5th Cir. 1969)), enfd. 107 F.3d 923 (D.C. Cir.
1997). I would, therefore, grant the General Counsel’s
request for this remedy.
APPENDIX
NOTICE TO MEMBERS
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 vio-
lated Federal labor law and has ordered us to post this notice
in both English and Chinese and to obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT instruct employees to abandon their
support for the Union.
WE WILL NOT threaten employees with unspecified re-
prisals if they continue their support for the Union.
WE WILL NOT encourage an employee to resign because
of the employee’s union activities and sympathies.
WE WILL NOT blame an employee who supported the
Union for the decrease in all employees’ annual bonuses.
WE WILL NOT prohibit employees from speaking about
the Union and threaten employees with termination if
they speak about the Union.
WE WILL NOT solicit employee complaints and griev-
ances and promise employees increased benefits and
improved terms and conditions of employment if they
refrain from union organizing activities.
WE WILL NOT prohibit employees from discussing
working terms and conditions of employment.
WE WILL NOT threaten an employee with unspecified
reprisals for engaging in union and protected concerted
activities.
WE WILL NOT interrogate an employee about the em-
ployee’s union and/or protected concerted activities, and
the union and/or protected activities of other employees.
WE WILL NOT interrogate an employee about the em-
ployee’s union and/or protected concerted activities.
WE WILL NOT instruct an employee not to sign letters or
petitions or to otherwise engage in concerted activities.
WE WILL NOT threaten employees with promotion of a
foreman about whom employees had concertedly com-
plained, in retaliation for the employees’ concerted ac-
tivities.
WE WILL NOT impose more onerous terms and condi-
tions of employment on employees by adding to report-
ers’ beats when they engage in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the National La-
bor Relations Act.
CHINESE DAILY NEWS
Ami Silverman, Esq., for the General Counsel.
Steve D. Atkinson and Thomas A. Lenz, Esqs. (Atkinson, Andel-
son, Loya, Ruud & Romo), of Ceritos, California, for the
Respondent.
Bruce Meachum, Sector Representative of The Newspaper
Guild, Communications Workers of America, of Jefferson,
Colorado, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned case in trial in Los Angeles, California, over
13 days in July, September, and October 2004, with the final
evidence received into the record in November and December
2004. Posthearing briefs were submitted on January 11, 2005.
The matter arose as follows. On various dates from June
2001 through February 2004, the Newspaper Guild, Communi-
cation Workers of America, AFL–CIO (the Union or the Charg-
ing Party) filed the following charges, and in some cases
CHINESE DAILY NEWS 913
amended those charges, against the Chinese Daily News (the
Respondent) with the National Labor Relations Board.1 During
the period the charges were filed and after investigation, the Re-
gional Director for Region 21 of the National Labor Relations
Board issued complaints and consolidated complaints respect-
ing various of the charges, culminating in a fourth order con-
solidating cases, third amended consolidated complaint and
third amended notice of hearing issued by the Regional Direc-
tor on May 27, 2004 (the complaint). The complaint was fur-
ther amended at the hearing. The Respondent filed timely an-
swers to the complaints and amendments to the complaints and to
the General Counsel’s trial amendments to the complaint.
The complaint alleges, and the answer denies, inter alia, that
the Respondent’s agents variously interrogated employees re-
specting their union and protected concerted activities, threat-
ened employees with reprisals if the employees continued to
engage in union activities, instructed employees to abandon their
support for the Union and resign from the Union, blamed union
supporting employees for causing reductions in employee an-
nual bonuses, solicited employee complaints and grievances
promising employees increased benefits and improved terms
and conditions of employment if they refrained from union
activities. The complaint alleges that the conduct violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act).
The complaint further alleges that the Respondent, by memo-
randa to employees, prohibited employees from speaking about
the Union, threatened employees with termination if they spoke
about the Union, threatened employees with job loss because of
their support for or selection of the Union as their representa-
tive, and threatened an employee with reprisals for engaging in
union and protected concerted activities. The complaint alleges
that the Respondent’s agents solicited employees to sign an
antiunion petition and threatened employees with the promotion
of a foreman about whom the employees had complained in
retaliation for the employees’ complaint concerning the indi-
vidual. The complaint alleges that this conduct violated Section
8(a)(1) of the Act.
The complaint alleges that the Respondent issued a written
warning to employee Yun-Min Pao and decreased his annual
bonuses for the years 2001 and 2002, decreased the annual
bonus of employee Hui Jung Lee for the years 2001 and 2002,
and imposed more onerous terms and conditions of employment
on employee Ching Fang Chang by changing her job assign-
ments. It alleges that the Respondent suspended employee Jing-
Hua Zhang on or about April 22, 2003, and terminated him on or
about May 5, 2003. The complaint alleges these actions were
taken by the Respondent because the employees engaged in
union and/or protected concerted activities and to discourage
employees from engaging in such activities. The complaint
alleges that this conduct violated Section 8(a)(3) and (1) of the
Act.
The complaint further alleges that the Respondent imposed
more onerous terms and conditions of employment on em-

1 Cases 21–CA–34261, 21–CA–34717, 21–CA–35041, 21–CA–
35063, 21–CA–35110–1, 21–CA–35211–1, 21–CA–35329, 21–CA–
35429, 21–CA–35482, 21–CA–35497, 21–CA–35637, 21–CA–35655,
21–CA–35736, and 21–CA–36157.
ployee Lien Wang (Lynne Wang), reduced Wang’s annual
bonuses for the years 2001, 2002, and 2003, reduced the 2003
annual bonus of employee Yun Min Pao, and implemented a new
sick leave policy for employees on or about November 2001, all
in retaliation against the employees for their filing charges with
the National Labor Relations Board (Board) and/or because the
employees either testified or attended a representation hearing in
Case 21–RC–20280. The complaint alleges this conduct violates
Section 8(a)(4) and (1) of the Act.
The Respondent alleges that the conduct attributed to its agents
in the complaint either did not occur or, in some situations
where actions were taken, the Respondent’s actions were not
undertaken for the malign reasons alleged and that, accord-
ingly, the Respondent did not violate the Act as alleged and the
complaint should be dismissed.
FINDINGS OF FACT
On the entire record herein, including helpful briefs from the
Respondent and the General Counsel, I make the following2
I. JURISDICTION
The Respondent is, and has been at all material times, a Cali-
fornia State corporation with facilities in Monterey Park, Cali-
fornia, where it has been engaged in the business of publishing
and distributing a daily circulation newspaper, the Chinese lan-
guage Chinese Daily News.
The pleadings establish that the Respondent at relevant times
has derived gross annual revenues in excess of $200,000 from
its business operations. Further, during the same periods, the
Respondent held memberships and/or subscriptions to various
interstate news services, published various nationally syndi-
cated features, and advertised nationally sold products. During
these same periods, the Respondent purchased and received
goods which were shipped directly to the Respondent’s facili-
ties from points located outside the State of California.
Based on the above, there is no dispute and I find the Respon-
dent is and has been at all times material an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
The pleadings establish, there is no dispute, and I find the
Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a major Chinese-language daily newspa-
per published in Southern California. It is part of a multi-
national family of Chinese language newspapers with the primary
enterprise being the Taipei based United Daily News. The Re-
spondent utilizes both its own reporters and various news pro-
vision services to obtain news and then uses its own staff to
prepare its newspaper pages and to print and distributes copies of

2 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters. Where
not otherwise noted, the findings herein are based on the pleadings, the
stipulations of counsel, or unchallenged credible evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD914
its paper to retail distribution points. The Respondent also solic-
its, receives, prepares, and publishes advertising in its newspa-
per.
At relevant times the Respondent’s president has been Ming-
Sheng Su. Reporting to him are the General Manager David Li
and the editor-in-chief, Shih-Yaw Chen.
Reporting to the general manager are Business Manager Ste-
ven Gao, and Sales Manager Robert Yang. Gao directs, among
other departments, the classified ads department and the circu-
lation department under Circulation Director Hsien-Hsiao Hsu
which includes truckdrivers working a one time under Foreman
Ming Chiang. Also reporting to Li is the plant department, a
position unfilled at relevant times. The plant position in turn
directs the printing supervisor, Huang Fan-Chiang.
The editor-in-chief directs the Deputy Chief Editor Frank
Fang and Editing Director Tzu-Cheng Chu who in turn super-
vises the editors and proofreaders. Also reporting to editor-in-
chief is the city editor, Jeff Horng, who, with the assistance of
three deputy city editors directs the reporters.
There was no dispute that above positions and the individuals
filling them at relevant times as well as the entire compliment of
alleged agents of the Respondent set forth in the complaint
were supervisors and agents of the Respondent.
The Union filed a representation petition docketed as Case
21–RC–20280 on October 26, 2000, seeking to represent a wall-
to-wall unit of approximately 150 of the Respondent’s employ-
ees. Preelection hearings on the petition were held from No-
vember 9, 2000 to January 16, 2001. The Regional Director
issued a Decision and Direction of Election on February 16,
2001. The Respondent’s request for review of the decision was
denied by the Board on March 7, 2001. The election was held
on March 19, 2001 with a tally of ballots providing that the
Union had received a majority of valid votes cast and that there
were an insufficient number of challenges to affect the outcome
of the election.
The Respondent filed timely objections to the election. A
hearing on objections was held before Hearing Officer Nancy
S. Brandt during the period May 7, 2001 through June 19,
2001, with the hearing officer’s report on objections issuing on
August 15, 2001. The report recommended the Respondent’s
objections be overruled and the Union certified as the collec-
tive-bargaining representative of unit employees. On September
17, 2001, the Respondent filed exceptions to the hearing offi-
cer’s report with the Board. The exceptions remain before the
Board with no decision by the Board having as yet been taken.
From the time of the hearing officer’s report to the conclu-
sion of the hearing herein, the Respondent and the Union had
not been able to reach accommodation. The Respondent has
taken the position to both the employees and the Union that the
Union does not represent its employees; the Union continues to
assert to the Respondent and to the employees that it represents
employees in the unit. The Union has maintained an ongoing
postelection campaign to retain employee support for the Un-
ion, regularly communicating to employees, holding rallies and
generally encouraging employee union activism. It has also been
associated with various actions against the Respondent before
other regulatory agencies and in the civil courts.
B. A Note Regarding the Record
The Respondent’s publication is written in Chinese charac-
ters. The necessary literary facility, if not mastery, of writing
with Chinese characters to the extent required for writing and
publishing in a daily newspaper is substantial. It was the opinion
of all the parties at the hearing that an “old country,” first-
language classical Chinese education was necessary for the
Respondent’s reporters, writers, editors, and proofreaders so
that they would be able to work with sufficient facility in Chi-
nese characters to do their job. A consequence of this Chinese
character literacy requirement, augmented by the fact that the
Respondent is associated with a newspaper group with its head-
quarters in Taiwan, is that the Respondent’s literary staff is very
largely from the old country. Further, its supervisory hierarchy
and at least a portion of its unit staff had earlier newspaper
experience in Taipei.
Essentially all employees and managers associated with the
Respondent speak Chinese as their first language and continue
to speak and write in Chinese in their work with the newspaper.
Thus, virtually all the events relevant to the trial which in-
volved either the spoken and/or the written word occurred in
Chinese. Indeed, essentially all the witnesses at the hearing spoke
Chinese as their first language and had sufficiently limited spo-
ken English so that essentially all witnesses testified in Chi-
nese.
Further, as the parties uniformly pointed out, joined in by the
learned, if sometimes plaintive, remarks of the official court
translator, the Chinese language is a geographically variant,
complex, subtle, context sensitive, indirect, elusive, and some-
times ambiguous language. As a result of this fact, the testi-
mony of witnesses in Chinese respecting conversations and
communications at issue in the trial were not always easily or
precisely translated into English. A consequence of this reality
is that the English language translation which is a major part of
the record herein may not be subjected to the myriad tests and
teachings of the Board’s unfair labor practice holdings as part
of the legal analysis of the allegations of the complaint without
keeping in mind the original context of the events and the dan-
ger of loss of precision and detail in translation in the settings and
circumstances of events.
Finally, it should be noted that the witnesses herein were es-
sentially all journalists who have spent their careers in writing,
proofreading, and editing. The record reflects many witnesses
had very substantial literary and intellectual attainments. Yet,
perhaps as a result of the real time necessity of courtroom tes-
timonial interpretation during which the witnesses’ Chinese
testimony is recorded only in its interpreted English form, these
witnesses’ recorded English words do not properly reflect the
witnesses’ undoubted excellence of spoken language. I am very
doubtful that the record’s frequent attributions to witnesses of
grammatical simplicities and in some cases errors in English
reflect the untranslated quality of the spoken Chinese language
of the witnesses. I fear that the quotations I have used below of
excerpts of testimony do not do justice to the witnesses quoted.
I am unable to edit or otherwise change the record however.
While I know of no way of reducing this difficulty, I am
pleased to at least note this problem and here ask the forgive-
ness of the witnesses likely maligned by the fact that their spo-
CHINESE DAILY NEWS 915
ken language is and was during their testimony better than ap-
pears in the record or as quoted herein.
C. Unfair Labor Practice Allegations
As might be expected from a substantial complaint consoli-
dating multiple allegations taken from over a dozen charges
filed over an almost 3-year period, the allegations herein do not
arise from a single or even a few events and situations, but are
rather based on a variety of settings and circumstances. While
no simple organizational approach provides an ideal or even a
simple or straightforward vehicle for presentation of all the
issues in dispute, the following format seems appropriate.
1. Allegations of violation of Section 8(a)(1) of the Act
The Act provides at Sections 7 and 8(a)(1):
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all
such activities. . . .
Sec. 8. (a) It shall be an unfair labor practice for an
employer 1) to interfere with, restrain, or coerce employ-
ees in the exercise of the rights guaranteed in section 7;
. . . .
Complaint allegations asserting that an employer’s conduct
violates Section 8(a)(1) of the Act, by virtue of the reference to
Section 7 of the Act in Section 8(a)(1), are alleging that the
specified conduct of the employees’ agents improperly dis-
courages or chills the employees’ rights to self-organization,
to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
The complaint at paragraphs 8 through 20 as subnumbered
alleges multiple instances of violations of Section 8(a)(1) of the
Act by various agents of the Respondent. Those allegations are
presented in the order alleged.
a. Complaint Paragraph 8—Allegations concerning
Editor-in-Chief Shyh Chen
(1) Complaint subparagraphs 8(a), b), and (c)—Events of Feb-
ruary 17, 2001
Complaint subparagraphs 8(a) and (b) allege that Editor-in-
Chief Chen on or about February 17, 2001, in a telephone con-
versation, interrogated an employee about the employee’s un-
ion membership, activities, and sympathies and threatened an
employee with unspecified reprisals if the employee contin-
ued engaging in activities on behalf of the Union. Complaint
subparagraph 8(c) alleges that on the same date in the Corpo-
rate Center, Chen instructed employees to abandon their sup-
port for the Union and threatened employees with unspecified
reprisals if they continued their support for the Union.
Lien Yi Jung, known as Lynne Wang, was at all relevant
times a senior reporter and early, active and known supporter of
the Union who testified on its behalf and assisted the Union
generally at the representation hearings described above. She
and the other reporters are supervised by the city editor who is
under the direction of the editor-in-chief.
Before the evening events in contention, Wang had written
two articles regarding a union organizational campaign at a
hospital that Chen had declined to publish. The refusal was not
well received by Wang and was the subject of some discussion
and complaint. The Union’s campaign newsletter contained an
article on the issue characterizing the decision not to publish
articles about union organization at other employers as unpro-
fessional. Chen read this article and took umbrage.
(a) Testimony
Wang testified that she was telephoned late in the evening of
February 17 or 18, 2001, by then Deputy City Editor Hsiao-Tse
Chao and told that the editor-in-chief wanted her to come into
the office immediately. Wang asked to be and was transferred
to Editor-in-Chief Chen’s phone and had a telephone conver-
sation with him. She testified that she suggested she come in
at a different time since he was doubtless very busy. She re-
called:
He said, no, you have to come in right away and he com-
plained about the union newsletter. He say I write a union
newsletter. I said, I didn’t write a union newsletter. If you
want to talk about the union could we make appointment to
talk another time? He still said, no, you have to come in right
away.
Chao, who had severed her employment with the Respondent
over a year earlier and was at the time of her testimony a paid
employee of the Union, testified that Editor Chen was visibly
angry when he asked her to reach Wang by telephone and that
she was present during and heard his side of the telephone con-
versation with Wang. She testified that Chen said to Wang:
[T]hank you for teaching me something. And he said that the
Union newsletter had an article criticizing the management
for not publishing the Garfield Hospital article. . . . He said
well, somebody will have—bad things will happen about this.
And then he kept on yelling. He said he’s going to live
longer than Lynne [Wang]. In Chinese, it meant to me that
he was going to stay with the Company longer than Lynne
and Lynne will have a short life with the Company. He kept
on yelling. He said that if he was the scapegoat of the Em-
ployer, then he was going to find somebody to be his scape-
goat. . . . He said that the more the newsletter criticized him,
the more popular he would be with the management. Then he
said even if the newsletter criticized him with ill will, mali-
cious, he will get his revenge. . . . And then he said—oh, if
you want your Union, you could organize your Union, but
for tonight, you are to finish your work, so you have to
come in by the way.
Editor Chen testified that he had read a union newsletter
which had suggested that the Respondent had withheld publish-
ing an article respecting union organizing at a local hospital and
that the newsletter was accusing the Respondent of being un-
professional which he felt was unfair. He wanted to know why
the Union would make such assertions and asked Chen to reach
Wang by telephone. Within the hour Wang called back, in his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD916
recollection, and the two talked very briefly. The telephone call
did not include any discussion of the union newsletter, but
ended with each knowing Wang would come to the office and
the two would discuss the matter.
Soon thereafter, around midnight, Wang came to the office
and at Chen’s direction Chen, Chao, and Wang met in the ar-
chive office. Wang testified that Chen
[L]ooked very angry, he talked very loud and the first he
started with something like he is not begging for mercy, he is
a tough guy, he would never beg for any mercy. I don’t know
what I say, you call me in because of a union thing? He say,
yes. I told him, I am innocent of that, I didn’t write a union
newsletter. He said, whether you write a union newsletter or
not you knew it yourself. Even if you did not write a union
newsletter you must have provided information. I said, I am
innocent to that, I didn’t do that.
Then he say, the union newsletter, last issue of the union
newsletter attack him, he could not argue about that, but this
time the union newsletter criticize him as the mentality of
emperor.
In Wang’s memory the conversation then turned to the merits
of the decision to withhold publication of stories dealing with
union organization at other employers. Wang and Chao took
the position such articles had regularly appeared in the paper
and were always appropriate. Chen asserted it was a “sensitive
period of time in our own company” and that such articles
should not be published and, if even the chief editor were to pub-
lish such an article, the editor might be fired the next day.
Wang testified the argument continued with greater heat.
Chao argued the case for unlimited publication. Wang recalled:
[Chao] argue[d] with chief editor, she not agree, she say, the
principle of news reporting we should not cut the article just
because 100 workers in our own company, the readers have
the right to know. She added even more mad, she said, don’t
you argue with me for the readers’ right to know. She also
said, don’t you think your work performance is so perfect that
she cannot find any fault with that? [Chen] said, if you want
to go litigation that will make it ever easier for the company.
Following colloquy with counsel, Wang’s memory of Chen’s
remarks was restated by the translator:
Don’t think whatever you said or did is complete no fault,
we probably will find something in it. Something wrong,
some fault in it. If you want to go to legal process that is fine,
much easier for us.
During the discussion, Wang took written notes. This
prompted Chen to ask Wang if she planned to use the notes to
write another article for the union newsletter. Wang said: “of
course not.” Wang estimated the meetings length as about 1-
1/2 hour and characterized Chen as very angry and that she had
never seen him in such a state before. When asked at the conclu-
sion of her direct examination if she recalled any other state-
ments by Chen she recalled:
[Chen] did mention that, he said the meeting where he told
you guys for the union you already done so much, it is time
to stop. He say that again, you have to stop union organize.
He say the workers will be the big loser.
Chao testified the events upset her because Chen was so angry
and rude she was fearful of possible violence. Further, during
her disagreement with Chen she was nervous:
I was like a half supervisor/half employee kind of hostage. I
felt that I shouldn’t be insubordinate. I thought if I left that
night, I might be fired.
Chao, however, corroborated Wang’s estimate of the duration
of the meeting and as well as its content generally. She specifi-
cally recalled Chen told Lynne [Wang]: “Don’t think that
you’re so perfect that I couldn’t find fault with your work.”
Chen testified that he called Wang into the office because the
union newsletter article attacked him personally and he wanted
to clarify his position with her. He did not recall the length of
the meeting other than to characterize it as “not too long.” He
testified that he well knew that Wang was a supporter of the
Union but did not threaten nor interrogate her.
(b) Analysis and conclusions
Not surprisingly, the General Counsel and the Respondent
each argue their witnesses to the events should be credited. I
have considered the testimony of each of the three participants
with special regard to their demeanor during testimony and
their emotional state during the contested events as well as their
clear personal association with the contesting parties.
Turning initially to the phone conversation, I find, consistent
with the versions of Wang and Chen that the call between the
two was straightforward and that Wang was peremptorily
summoned to the office to discuss with Chen the references to
Chen in the union newsletter. Chao was not on the telephone
line when Chen and Wang spoke. She was very upset during
the interchanges and I do not believe that here more elaborate
version of what she overheard Chen say into the telephone as he
spoke to Wang should be credited beyond that testified to by
Chen and Wang.
As to the meeting, I find that it lasted for a substantial time.
While it is difficult for meeting participants to accurately esti-
mate their duration, both Wang and Chao testified that meeting
was well over an hour. The undisputed testimonial details of the
conversation surely required a substantial amount of time sim-
ply to take place. Clearly Chen’s bland characterization of the
meeting as not too long is wishful thinking.
In resolving the conflicting versions of the statements made
at this meeting, I have taken particular account of the very strong
emotions in play. Clearly Chao was agitated and frightened.
Editor-in-Chief Chen was also clearly in high dudgeon. His
anger was evident first in the objective fact that he summoned
Wang to a midnight meeting. I further find, however, that as the
editor-in-chief was very sensitive to public criticism of his pro-
fessionalism and offended by the union newsletter’s references.
Both Wang and Chao testified with conviction and persuasive-
ness that Chen was hot indeed.
Given that the meeting was lengthy, that Wang was sum-
moned on short notice to defend herself and the union newslet-
ter, and that Chen was well and truly angry during the lengthy
exchange, I have a hard time fully crediting his bland denials
CHINESE DAILY NEWS 917
and disclaimers that the meeting was not long and was simply
an exchange of views. Relying on the corroborating parts of the
testimony of Chao and Wang, which I credit over the denials of
Chen, I find that during a discussion with some passionate if
not heated exchanges, Chen made it clear that he viewed the
union newsletter as a personal attack upon his integrity and that
he associated Wang with that union newsletter. Thus, I specifi-
cally credit Wang and Chao when they testified to Chen’s ref-
erence to Wang’s taking notes and his rhetorical question to
Wang: Was she going to use the notes for another union news-
letter?
The General Counsel and the Respondent argue the broad
context of the conversation with citation to supporting cases.
The Respondent emphasizes the fact that Wang and Chao were
known union supporters, Chao a statutory supervisor, and ar-
gues that a contentious exchange or freewheeling argument
regarding the professional issue discussed should not be found
unlawful. The General Counsel points to the late night angry
summoning of Wang to the Respondent’s offices by a high
official of the Respondent, his isolation of Wang and Chao in
an unused office for over an hour, and his angry diatribe against
the union newsletter and Wang’s connection with it.
As noted, I have not found any improper statements by Chen
to Wang in their telephone conversation.3 Complaint subpara-
graphs 8(a) and (b) will therefore be dismissed. Complaint
subparagraph 8(c) alleges that Chen instructed employees to
abandon their support for the Union and threatened employees
with unspecified reprisals if they continued their support for the
Union. I find, based on the entire episode, that Chen did in fact
make it clear to Wang that attacks upon him in the union news-
letter such as that under discussion were intolerable, that he
associated her with the union newspaper, and impliedly—given
his heat and the force of his remarks—threatened unspecified
reprisals. This is a classic situation where the full context of
events informs the analysis and supports the finding of a vio-
lation. There is no doubt that the subject of Chen’s remarks
and wrath generally was the union newsletter and Wang’s
association with the Union and its newsletter. The totality of
Chen’s conduct in the midnight meeting without question
would reasonably have a chilling effect on Wang’s continued
exercise of her union activities in these regards. I therefore
sustain the General Counsel’s allegation at complaint sub-
paragraph 8(c).
(2) Complaint subparagraphs 8(d), (e), and (f)— Events of
November 5 and 12, 2001
Complaint subparagraphs 8(d) and (e) allege that on or about
November 5, 2001, at the Respondent’s Corporate Center facil-
ity, Chen encouraged an employee to resign because of the
employee’s union activities and sympathies and threatened an
employee with termination in retaliation for the employee’s
union membership, activities, or sympathies. Complaint sub-
paragraph 8(f) alleges that on or about November 12, 2001, at
the Respondent’s Corporate Center facility, Chen blamed an

3 The late night summoning of Wang to the office to discuss the un-
ion newsletter is not alleged as a violation of the Act.
employee who supported the Union for the decrease in all em-
ployees’ annual bonuses.
The allegations relate to two separate evening reporters
meetings conducted by Chief Editor Chen and City Editor
Horng and attended by reporters. There were two separate
meetings, however the substance of the two meetings was not
separate in the testimony of the witnesses. In order to maximize
the orderly presentation of the evidence argument and analysis,
the allegations and testimony regarding these complaint allega-
tions are considered together.
(a) Testimony
Wang testified that in late October 2001 she learned that
management had established a new mandatory evening office
attendance regimen for reporters to begin the week of Novem-
ber 5, 2001. The reporters were not happy with the new policy
and discussed the matter among themselves by telephone pre-
vailing upon Wang to prepare a letter to management on the
matter. Wang prepared such a letter which the other reporters
had an opportunity to read and suggest changes. The letter,
dated October 31, 2001, and titled: “Reporters’ Suggestions—A
Plan to Promote Communication between Chief Editor and
Reporters,” addressed to the president, chief editor, and assis-
tant chief editor was transmitted to the Respondent by facsimile
transmission on or about October 31, 2001.
The letter, submitted in Chinese, and two pages in length in
single-spaced, typewritten form in English translation, de-
scribed the new policy and the fact that reporters did not have
the opportunity to meet with the city editor prior to its imple-
mentation, and indicated the reporters desired by the letter to
give their opinions and sentiments. The letter protested, in some
detail, the onerous nature of the policy, its unfairness and im-
practicality and suggested various alternatives to the time and
frequency of the required office attendance.
Consistent with the new policy, Wang come into the office
the evening of November 5, 2001, and a meeting was held with
attending reporters including Wang, George Pao, Jenny Chen,
Cindy Chen, Chief Editor Chen, and City Editor Horng.
Wang testified that the meeting began with reporter com-
plaints about the meeting time and that she proposed a daytime
meeting time and e-mail communication between the reporters
and management. Chief Editor Chen said no to the proposal.
Wang noted that she was attending on her day off—other re-
porters were attending after a full workday. She asked if the
Company was going to pay reporters overtime. Chen became
angry and questioned the reference to overtime and the two
exchanged words about whether overtime was appropriate with
Chen becoming ever more angry. Wang recalled:
And [Chen] say, I warning you—I said, me? He said, yes,
you. I am warning you, you are at—if you are not happy write
your resignation letter. I will be very glad to sign it. He say,
there are a lot of people who want to do your job. He turned
his head asking Jeff Horng, do we receive a lot of resume, and
Jeff Horng nodded his head yes.
Wang testified that Chen followed these events with a derogatory
remark to her in Chinese which in her understanding of Chinese
culture was deeply insulting to a woman and highly improper.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD918
Wang testified that during the November 12, 2001 evening
meeting the letter she sent in regarding the reporter’s views on
the meetings was discussed. Chen raised the matter asserting
the letter was simply Wang’s opinion. When reporters Emma
Yen and George Pao spoke up and said the letter was their
work also, Chen suggested the letter was then only the work of
the three of them. Yen responded that to the contrary it was in
fact the opinion of all the reporters and it was not a matter of
the Union but simply a communication to management from
the reporters.
Wang testified that she took notes during the meeting and
that this prompted comments from Mr. Chen.
Chief Editor look at me, you taking notes. In Chinese
taking notes means check—you are just a check-check-
check. You are taking notes and will give to the union
staff and sue the company. Every little thing you will sue
the company. He said, that the company had to hire a law-
yer to defend and increase the expense of the company,
decrease the profits of the company, will have negative
impact on the employees’ benefits, including the yearly
end bonus. At that time November is about the time to do
the yearly end evaluation of all the workers.
I asked him, are you telling me because I wrote the—
you are going to give me less yearly end bonus? He looked
so mad, he said, you try to—he say, I try to sue the com-
pany and the company has to hire lawyer to defend, that
would increase the cost of the company, decrease the prof-
its and make all the workers’ benefits including the yearly
end bonus.
Ching Fang Chang, a reporter during the time in question as
well as an active union supporter, corroborated Wang’s testi-
mony respecting this meeting although she conjoined some
statements made by the same individuals in the two meetings,
discussed supra. She described the Chen-Wang exchange re-
specting Wang’s written notes and Chen’s reference to the an-
nual bonus:
[Chen] say you think that you can use this against me. He said
a couple of things, but the one thing is he say you will use this
and you will tell the Union and then the Union will come to
sue the Company, and the Company’s expenses will in-
crease and you guy’s bonus will suffer by that. . . . And then
Lynne Wang asked Chief Editor, she say so are you saying
that our annual bonus can suffer because Union sues the
Company. And then Chief Editor got angry. Then he say you
don’t use my words to—don’t try to use these words against
me.
Editor-in-Chief Chen denied threatening Wang during these
meetings. He also testified respecting specific statements made
in the several meetings in dispute herein. He described the
meeting in which he and Wang discussed the scheduling of
evening reporter meetings:
During the meeting, a reporter named Lynn Wang, from the
very beginning she was taking a note everything I said.
And maybe she is against to call upon this meeting.
She believed that the meeting should be called upon during
the daytime but there is many difficulties to have the meet-
ing during daytime; first, because our reporter was already
on the beat during daytime; and there are a lot of press
conference going on. They need to cover the conference
that, you know, whenever the meeting that constantly a lot
of people either late or cannot show up. Or left earlier.
There are a lot of discussion that is becoming incomplete.
Therefore, this meeting was called upon during the
evening because the work—it was in the evening after all
those article—the reporter article already in. Then call
upon the meeting meanwhile this is overtime and then for
attending this meeting a reporter should be paid overtime
pay.
I told her that the reporter is a professional and the
working hours are flexible, that there is a certain law in
California of such a regulation. But she won’t let the meet-
ing continue. She kept interrupting my speech.
Then I told her that right now the purpose to have the
meeting is to do the job right and do it better and I also
explained to her the working environment here in the Chi-
nese Daily News is the best in all the Chinese newspapers.
. . . .
She was continue taking the notes. I asked her that you
taking a note, the purpose to misinterpret what is taught, my
speech, and then turn around and going to sue the newspa-
per? Because at the time they are already organizing the
Union and also file some charges against the newspaper.
And then to sum up, the charges relate to me person-
ally and it is to point out something I did not say but the
charges said I did; that I denied responding. If you feel
that you are not satisfied to the working environment here,
America, this is a free country, our door is, you know,
wide open. Some people want to come in; some people
want to leave. If you are not satisfied, you know, you can
leave also, that this is not a pinpoint to a certain people. It
is an overall to any business entities and Lynn Wang inter-
rupt what I said.
She said, are you threaten me? You want me to leave?
She was, you know, is kind of misinterpreted what I said,
that my general analysis, she cut it, you know, and she just
distorted what I meant and I insist that I want her to leave.
City Editor Horng did not recall the detail of the Wang-Chen
exchanges but testified that Chen told Wang at one of the meet-
ings that if “there is a lot of additional expenses occurred and that
relatively the employees’ benefit will be reduced.” The Re-
spondent challenged Wang’s view that the statement made to
her was improper and insulting.
(b) Analysis and conclusions
The General Counsel argues first that its witnesses should be
credited and further notes that the Respondent’s criticisms and
threats were directly related to Wang’s union and protected ac-
tivities and were initiated by Chen not Wang. Thus, the General
Counsel notes that it was Chen who raised the matter of Wang
taking her notes to the Union or using them to sue the Respon-
dent.
The Respondent urges its witnesses be credited and cites cases
for the proposition that angry but otherwise lawful conversa-
tions do not simply become unlawful if provoked by employee
CHINESE DAILY NEWS 919
protected activities. Counsel for the Respondent on brief notes
that the Union at the time of the events in controversy had been
making the Respondent’s legal fees a basis for criticism of the
employer for wasting resources that employees might share.
Further counsel emphasize that Chen’s statements were in fact
true in the sense that employee bonuses were based on the Re-
spondent’s profits and that the Respondent’s legal expenses
reduced that profit.
While Chen made general denials respecting his making of
threats, the testimony is not at wide variance when specific
statements are considered. Chen initially denied telling Wang
that, if she was unhappy she could write her resignation letter.
Thereafter during his description of the things he did say to her,
his testimony made it clear that his recollection was not at fatal
variance with that of Wang in these regards. Generally, I credit
the testimony of Wang and Chang insofar as I consider the
specific complaint allegations below. The much more vague
recollections of Chen and Horng are not significantly at vari-
ance and to the extent they are susceptible to be so construed,
they are not credited. For the reasons set forth below, I simply
do not reach nor resolve the dispute between the parties re-
specting the remark of Chen respecting which Wang took great
offense.
The allegation that Chen encouraged an employee to resign
is based on the testimony of Wang, credited herein, that Chen
told her that if she was not happy to write her resignation letter
and he would be very glad to sign it. The statement was made to
her in the context of the two’s argument respecting the report-
ers’ meetings and the additional hours required and whether or
not reporters were entitled as a matter of law to premium or
overtime pay. The position of Wang, correct or not, clearly
arose out of the reporter’s unhappiness with the Respondent’s
newly required evening office meetings. Chen well knew or
reasonably should have known of the employees concerted
activities in these regards and Wang’s role in advancing em-
ployee complaints to him in the meeting.
But is such a statement a violation of the Act? The Respon-
dent on brief simply characterizes the statement that, if an em-
ployee does not wish to follow an employer’s rules, the em-
ployee may always quit, as at worst a statement of the obvious.
The General Counsel cites authority for the proposition that
such an invitation is “essentially a thinly-veiled threat” to ter-
minate her for her protected activities citing NLRB v. Inter-
therm, Inc., 596 NLRB F.2d 267, 276 (8th Cir. 1979). The
General Counsel’s cited case is relevant for the proposition that
the entire context of events must be considered and that words
innocent in themselves can rise to the level of a threat. Given
the full context of the Wang-Chen interplay at the meeting and
the close relationship of the statement to Wang’s protected
activities, I find that Chen’s invitation to Wang to resign is an
improper, if veiled, threat directed to her protected concerted
and union activities that violates Section 8(a)(1) of the Act.
Subparagraph 8(d) of the complaint is sustained.
The conduct found to violate the Act immediately above falls
within the language of complaint subparagraph 8(e) but I read
the General Counsel’s brief as directing this complaint allega-
tion to the disputed statement Chen made to Wang as described
above respecting which Wang was very upset and regarding
which substantial testimony and cultural explanation was of-
fered concerning the objective meaning of an apparently collo-
quial expression. Since the remedy for the violation found as
alleged in complaint subparagraph 8(d) encompasses any rem-
edy that might be directed regarding paragraph 8(e), and in
view of the difficult cultural questions as well as the difficulty
in dealing with the clearly differing subjective views of the
speaker and listener, I shall not independently resolve the im-
plied argument of the General Counsel that the statement in
contention is a free-standing threat of discharge. Complaint
subparagraph 8(e) shall be dismissed.
The complaint subparagraph 8(f) allegation that Chen
blamed an employee who supported the Union for the decrease
in all employee’s annual bonuses presents legal issues. Factu-
ally, I have found that Chen made the statement Wang attrib-
uted to him. Does it violate the Act for an employer to inform
its employees that the costs of its legal defense to protected,
employee activities has the potential to reduce profits and em-
ployee bonuses dependent on them? The Respondent would
seek to duplicate the Board’s “threat versus prediction” analysis
where in certain cases an objectively stated employer proposi-
tion may be made to employees even if it addresses a possible
adverse impact on employees arising from their protected or
union activities.
On the facts of this case, however, the bare “fact versus pre-
diction” analysis must be informed by the larger context of
events. Here the context and circumstances of the Respondent’s
action clearly renders the statement a threat even if it is objec-
tively true to some degree however small.4 First, the Respon-
dent’s agent is a high level official speaking at a mandatory
meeting. Second, the remarks were initiated by that agent follow-
ing a spontaneous commentary on Wang’s note taking in which
the notes were connected by Chen to the Union and frivolous
lawsuits. Third, the Respondent had made threatening remarks
at the meeting found violative supra, directed toward Wang and
her protected concerted activities in discussing reporters’ con-
cerns regarding meeting scheduling. Such a fraught context
simply does not support the benign out-of-context analysis the
Respondent seems to advocate, I therefore find the conduct at
issue violated the Act and sustain subparagraph 8(f) of the Act.
(3) Complaint subparagraphs 8(g) and (h)—The November 15,
2001 memorandum
Complaint subparagraphs 8(g) and (h) allege that the Respon-
dent by memorandum to employees wrongfully prohibited em-
ployees from speaking about the Union and threatened employ-
ees with termination if they spoke about the Union. There is no
dispute that the Respondent, over the signature of Chief Editor
Chen, distributed a memorandum dated November 15, 2001, to
its editing department employees. Employees were instructed to
read and sign the document and did so.
The memorandum addressed numbered issues and asserted
in its latter part:

4 While it is conventional wisdom that all legal expenses are ruinous,
no evidence was submitted on the issue nor on to what degree if any the
bonuses would have been effected at any relevant time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD920
Three. Computer Layout Room work discipline must
be maintained. For a long period in the past, too many
gossips have been said and rumors frequently circulated in
the Layout Room, turning it into an “evening rumor proc-
essing center.” I hereby reiterate that under the law, em-
ployee discussion of union matters during work time is
strictly prohibited, discussion of other people’s rights and
wrongs or their faults and merits is also prohibited. This is
a matter of the law and work discipline.
Four. Supervisors must be fair and neutral in work dis-
tribution. He must be impartial. Colleagues who detect un-
fairness may seek responses from any level’s supervisors for
a fair and reasonable solution. Private discussion, clique
forming personal gains, attacks on co-workers, vengeance
seeking, etc. are not permitted.
Five. We can review our man-power distribution situa-
tion and the applicability of labor division and layout divi-
sion by rotation. But to sum it up, the system had its flexi-
bility and merits in the past. I hope to maintain it to the
best I can.
We in the Editing Department have always been work-
ing together in a congenial and pleasant atmosphere. This
is a tradition that must be maintained. The newspaper has
the responsibility to protect this healthy work environment
for all colleagues. I have an absolute aversion for rumors,
hearsays and cliques. If a colleague is found to have vio-
lated any rule during work hours, for example, he or she
has engaged in activities violating the law and regulations,
spread rumors that are untrue, alienated supervisors or
acted in violation of other rules, he or she will be reas-
signed in case of minor offenses and dismissed in case of
major offenses. All will be dealt with without leniency.
I hope our colleagues will treasure the fortuity and op-
portunity of working here. Let’s support and protect our
work environment from harmful elements. Thank you for
your cooperation!
Employee Pao testified without challenge that the Respondent
had no policy regarding work discussion before the memoran-
dum’s issuance. At the time of the circulation of the memoran-
dum, the election had been conducted and the hearing officer’s
report recommending dismissal of the Respondent’s objections
was before the Board on exceptions.
Counsel for the General Counsel makes several arguments.
First, she argues that the rules restricting union activity were
promulgated and first applied during the period when the or-
ganizational campaign was in process and the creation of the
rule was not justified by any showing that the restrictions were
necessary to maintain production or discipline. In such circum-
stances, the General Counsel argues, it is a violation under
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 at 113 (1956).
Second, she argues that the restrictions imposed under the
memorandum are limited to union activities and do not gener-
ally limit discussion of other subjects. The Respondent argues
the allegation is a “non-issue” in that the memorandum cites a
neutral rule intended for consistent application under Board no-
solicitation standards.
I find and conclude that the Respondent by issuing its memo-
randum and thus promulgating and maintaining a no-solicitation
rule during a union campaign without explanation or justification
violated Section 8(a)(1) of the Act. See NLRB v. Roney Plaza
Apartments, 597 F.2d 1046, 1049 (5th Cir. 1979), which held
that promulgating a no-solicitation rule during a union cam-
paign was strong evidence of discriminatory intent. The exhor-
tation to employees not to talk about the Union and to “protect
our work environment from harmful elements” provides addi-
tional evidence of the union activities focus of the rules. Fi-
nally, the rule was promulgated at a time when the Respondent
was engaging in other unfair labor practices and was actively
opposing the Union’s efforts to retain union support among
employees in the postelection period.
I also find the rules selective and overbroad. While I do not
believe the rules are limited to union activities in the narrow
institutional sense, neither do I find them to be neutral or
broadly applicable to all personal or nonbusiness activities.
Rather the rules or limitation seem to largely address both Un-
ion—and that by explicit prohibition—and other protected con-
certed employee activity for mutual aid and protection. Such
selected restriction violates Section 8(a)(1) of the Act. Cardi-
nal Home Products, 338 NLRB 1004 (2003). I therefore
sustain complaint subparagraph 8(g).
The memorandum asserts:
If a colleague is found to have violated any rule during work
hours . . . he or she will be reassigned in case of minor of-
fenses and dismissed in case of major offenses. All will be
dealt with without leniency.
By the memorandum’s terms, it threatens employees with dis-
cipline up to termination, if they spoke about the Union. Threat-
ening discharge of employees who violate an invalid rule is itself
a violation of the Act. Accordingly, I sustain the General Coun-
sel’s complaint paragraph 8(h).
b. Complaint paragraph 9—The February 2001 statements of
President Ming Sheng Su
Complaint paragraph 9 alleges that on or about February
2001, President Ming Sheng Su, at the Respondent’s Corpo-
rate Center facility, solicited employee complaints and griev-
ances and promised its employees increased benefits and im-
proved terms and conditions of employment if they refrained
from union organizing activities.
(1) Testimony
The Respondent’s president, Ming Sheng Su, took office just
before the filing of the representation petition in late October
2000 . Following extensive preelection hearings which ex-
tended from November 9, 2000 to January 16, 2001, the Regional
Director issued a Decision and Direction of Election on Febru-
ary 7, 2001, and the election was conducted on March 19,
2001.
Wang testified that she learned with other employees of
President Su’s appointment in October 2001, and first met with
him at his request along with fellow reporter Chao. Wang de-
scribed the meeting in Su’s offices as cordial with Su suggest-
ing he was a “nice guy” and that “he wanted us to disband the
Union.” Wang answered that the employees did not organize
CHINESE DAILY NEWS 921
the Union because of Su and would not disband it because of
him. She told him he should not take the union effort person-
ally. Wang said that she further told Su that many big compa-
nies had unions and ran smoothly so he should not regard it as a
bad thing. President Su told the two: “We are Chinese, we have
our Chinese way to run the business, why open a book to the
Americans?” In Wang’s memory Su also told her not to attend
the NLRB representation hearings: “Don’t go there, don’t pay
attention as things will go away.”
Wang recalled the two reporters met a second time with the
president under similar circumstances in late January or early
February 2001, which date she placed as “the day after [Presi-
dent Su’s] birthday and also after Hsiao Chao testified.” Presi-
dent Su told her that he heard she was still attending the NLRB
representation hearings and that he was not happy. He stated in
Wang’s testimony: “We are big family, we can solve the prob-
lem among ourselves. Give him a chance.” Wang then dis-
cussed with Su her inability to have an article published con-
cerning an union organizational campaign at another employer.
Chao testified that she was contacted by telephone and told
that President Su wanted to meet with her. She took Wang with
her and the two went to Su’s offices. At the meeting Su told her
not to attend the NLRB representation hearings and that “he
believed that reporter Lynne Wang and I could help him to
disband the Union.” Chao continued:
Lynne Wang told him that even in the government and big
companies they also have Unions. Union is not a bad thing.
Q. And did President Su say anything in response to
that?
A. Yes. He explained that the Unions are Americans
and the Company didn’t want to open to Americans.
Chao recalled the three met again in late January or early
February under similar circumstances. By this time Chao testi-
fied she had withdrawn from active organizational activities
and brought Wang because “everybody knows that Lynne
Wang has been the prominent leader . . . of the union cam-
paign.” She described Su’s remarks at the meeting:
President Su was angry this time. He said that I shouldn’t go
testify and I should say that I was not a supervisor. Then he
was more angry at Lynne [Wang]. He said that he heard that
Lynne was sitting in the hearing the whole time. . . . He kept
on saying that once the Union came in, then he had to go. So
he asked us to help him to break the Union apart. He prom-
ised that he was going to solve all our problems, all the prob-
lems in the Company.
In response Wang gave Su an article she had written about
another company and its union that had not been published and
Su said he would read it.
President Su did not testify.
(2) Analysis and conclusions
The General Counsel urges the single 8(a)(1) violation al-
leged in complaint paragraph 9 based on the testimony of Wang
and Chao offering the broader testimony regarding the two
meetings as supporting background only. Counsel for the Gen-
eral Counsel cites cases for the traditional notion that promises
of benefit conditioned on employee abandonment or resistance
to union organization is a violation of Section 8(a)(1) of the
Act. Counsel for the Respondent argues the General Counsel’s
witnesses have “severe credibility problems” and that the alle-
gations are inherently improbable. Finally, the Respondent
argues that the alleged statements in context are lawful under
Section 8(c) of the Act and the Board’s decision in Rossmore
House, 269 NLRB 1176 (1984).
I found the witnesses’ uncontradicted testimony of President
Su’s statements to be credible. I found each had a believable
demeanor as well as and apparent recollection of events. I reject
the argument of the Respondent that their testimony should be
discredited. Having credited Wang and Chao’s testimony, there
is little question that the statement of the highest official of a
employer, to known union supporting employees summoned to
the official’s office, that if they helped him break the Union
apart, the official was going to solve all their problems in the
Company, is a violation of Section 8(a)(1) of the Act. Robert
Orr/Sysco Food Services, 343 NLRB 1183 (2004); Yoshi’s
Japanese Restaurant, 330 NLRB 1339 (2000). I find therefore
that the Respondent through President Su violated Section
8(a)(1) of the Act in making such statements to employees as
alleged. I therefore sustain the General Counsel’s complaint
paragraph 9.
c. Complaint paragraph 10—June 6, 2001 meeting with
City Editor Horng
Complaint paragraph 10 alleges that on or about June 6, 2001,
the Respondent by City Editor Horng, at the Corporate Center
facility, instructed employees that they were prohibited from
discussing working terms and conditions of employment. The
allegation turns on the events at a meeting held by Chief Editor
Chen and City Editor Horng on June 6, 2001.
On or about June 1, 2001, changes in the beats of reporters
were announced by management. Beats are either geographical
areas or subject areas which particular reporters are assigned.
General reassignments of beats had not occurred for several
years and the action produced interest and concern among re-
porters.
(1) Testimony
Lynne Wang testified that she and other reporters were con-
cerned with the beat changes and had not been informed of
other reporters’ postchange beats. She called a meeting of re-
porters. They discussed the changes and together they formu-
lated an accommodation that they believed would make beats
more reasonable and workable for reporters. Wang was selected
by the reporters to write a letter to management communicating
the reporters’ views.
Wang testified she spoke to City Editor Horng and told him
the reporters were preparing a proposal and he said he could
accept changes in the beat assignments. A few days later she
prepared a three-page letter entitled, “Reporters’ Views on the
Beat Adjustments” dated June 5, 2001, respecting which she
asserted: “Every reporter got a chance to read it and approve
it.” The letter, in detail with numerous references to individual-
named reporters’ preferences, addressed the question of beat
assignments and made various proposals. Wang faxed the letter
to Horng. The result of the letter was that the editor-in-chief
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD922
called a noon meeting on June 6, 2001 for reporters at the Cor-
porate Center.
The meeting was held at the scheduled time and place and
was attended by Editor-in-Chief Chen, City Editor Horng, and
the bulk of the reporters. Wang testified that Editor-in-Chief
Chen asserted that since he was not of a common mind about all
the various beat assignments, he could not believe that the re-
porters had reached a consensus as reflected in the submitted
letter. He told the reporters that if he as the editor-in-chief did
not accept their proposals for changes, other than giving up
their employment, “what can you guys do?” Wang recalled he
added: “If you have any opinion you have to come into the
office to express your opinion. Don’t do something out of the
company system.” And he added that the beats would remain as
they had been assigned.
Wang described what then occurred:
The reporter, Sunny Yen, asked a question. Jeff Horng said to
him three or five reporters together cannot talk about the
company and he asked Jeff Horng again, you say that to me,
what you mean, why reporter cannot meet outside the com-
pany to talk about the beat? Jeff Horng said, it is not proper to
do that, he say, if you guys want to meet out of the company
you have to have me, that means Jeff Horng, in the meeting.
If you think—that means Jeff Horng—is there that you can-
not say whatever you want to say you have to report to me
immediately. He say, if it is a union meeting he does not
know, but he thinks we don’t have a union.
Wang’s Board-prepared affidavit covered the event:
Horng said if three or five reporters are discussing matters
related to the company then he should be present or else the
result of meeting should be reported to him immediately.
Horng said if we had any questions we should speak to him
directly and there is no need to speak about it among our-
selves.
Hsiao Chao had not met with other reporters regarding the
beat assignment changes nor seen the letter submitted by Wang,
but she did attend the June 6, 2001 meeting. She described the
relevant portions of the meeting as follows:
Chief Editor Chen talked about and prepared a letter
the beats. So he told all of us that the reporters should—I
forgot his exact words. Should have independent thinking
and we shouldn’t be influenced by Lynne [Wang]. . . . He
said that reporters—it is not appropriate for reporters to
meet outside the company on their own talking about
business related issues. . . . He said that you don’t have a
Union yet, so you cannot get together like that. Since you
don’t have a Union, Lynne shouldn’t regard herself as a
shop steward. . . . City Editor Jeff Horng added in. He said
that because—well, after Chief Editor Chen said that the
reporter, Sunny Yen, who came from mainland China, she
sat and spoke at the meetings, but she suddenly raised a
question. She said that she was from mainland China and
she thought that in the United States was where people had
freedom of speech and freedom of assembly and why
Chief Editor said we couldn’t all get together, the reporters
couldn’t get together.
Q. And did anyone respond to that?
A. Then City Editor Jeff Horng, he added that report-
ers are not allowed to get together and talk about the com-
pany related issues. So next time if you have this kind of
meeting, you have to let me know immediately. You can-
not have these meetings without—that’s what he said. You
cannot have these meetings without me being there.
Editor-in-Chief Chen was asked to describe Horng’s state-
ments to employees at this meeting regarding any limit on their
right to meet together. He recalled:
[City Editor] Horng said during meetings, if you want
to discuss about the beat, I should attend also because the
beat change within my supervising authorities. Therefore,
you know, get involve in the meeting so we can, you
know, communicate directly with each other and that the
beat, it belong to the newspaper. You cannot, you know,
negotiation in private between the reporter because that
the newspaper—okay—the newspaper have the overall
considerations when to distribute the beat and to have a cer-
tain balance.
Q. Did Jeff [Horng] tell the reporters that they were
not allowed to discuss work issues unless he was present?
A. No, he did not say that. Well, in the United States,
free country. You can discuss whatever you want to dis-
cuss.
City Editor Horng testified that Wang took the position dur-
ing the meeting that she was the spokesman for the employees
and that management told her that she was not. Regarding the
issue of his presence during employee deliberations he testified:
Well, I told them that I hope that this will be in the
public—which it will be a public occasion—open meeting
—occasion that I will attend also because my thinking, I
believe, this is a constructive change and—oh, interact.
Q. Did you direct the reporters that they were not to
meet outside your presence to discuss working conditions?
A. What I meant was—
MS. SILVERMAN: Objection.
JUDGE ANDERSON: Can you tell us what you said, sir,
rather than what you meant?
A. I said, of course, you may go ahead and hold the
meeting but during the working time and discuss about the
beat, I hope that I can participate because my point is that I
want to communicate direct.
Q. Did you tell reporters that they were not to have any
meetings about the beats unless you were present?
A. No.
In a communication dated June 30, 2001, from Wang to
Horng and Chen, Wang again addressed beat issues and as-
serted in part:
On June 4, Assistant Editor-in-Chief Horng expressed dis-
pleasure at the reporters’ meeting, and requested that from
then on no private meetings be allowed. Meetings had to have
him present or he had to be informed first right after the meet-
ing.
CHINESE DAILY NEWS 923
Editor-in-Chief Chen responded by communication of July
16, 2001, stating in part:
When you spoke to City Editor Horng at the meeting, your
views contained some misunderstandings and twisted inter-
pretations. City Editor Horng understands that our fellow re-
porters have the right to assemble and discuss this newspa-
per’s affairs. However the true intent of what he said at the
June 4 meeting was that as far as the news coverage term is
concerned, the most congenial and constructive method
would be to have everyone directly exchange ideas with the
supervisors to discuss the problems. If coworkers have no op-
portunity to express their views for themselves, it will be very
easy for misunderstandings to arise, or to me misled and in-
cited by people with ulterior motives. It will be easy for them
to feel that they are not been respected or valued. That is why
City Editor Horng encourages our and other colleagues to
give your reactions directly to your supervisors and discuss
problems. It is not necessary to have someone else to pass on
one’s words. City Editor Horng and myself emphasized again
and again at the meeting that day what we meant by this and
we believe that everyone at the meeting heard this very
clearly.
(2) Analysis and conclusions
The counsel for the General Counsel argues that her wit-
nesses should be credited and that Horng at the meeting clearly
restricted the employees’ right to meet among themselves out-
side his presence to discuss beat assignments. Counsel for the
General Counsel notes that freedom to assemble and discuss
terms and conditions of employment free from employer pres-
ence lies at the heart of the Act and that employer rules prohibit-
ing employee discussions of working conditions outside of the
presence of supervision violates Section 8(a)(1) of the Act cit-
ing Koronis Parts, Inc., 324 NLRB 675, 694 (1997).
The Respondent does not challenge the General Counsel’s
legal theory so much as argue that there is no credible factual
basis in the record to sustain it. Thus, the Respondent argues
that the actual statements made at the meeting tracked the recita-
tion of Editor-in-Chief Chen’s memo quoted in relevant part
above.
I have carefully considered the testimony of the meeting par-
ticipants as well as the content of the affidavit of Wang and the
exchanged communications of Wang and Chen. In addition to
considering the interpretation and credibility resolution each
side advances, I have considered whether a miscommunication
or variant understanding of words occurred. I find and conclude
that the statements of Horng are as described by Wang and Chao
above. I found their memories of what was said confident and
their presentation direct and complete. Rather, with Chen and
Horng, I found the two did not provide a full or convincing
recollection of what was said. Regarding the written evidence,
that prepared by Wang was consistent with her testimony. Edi-
tor-in-Chief Chen’s subsequent communication, as quoted
above, sounds more in the cadences and content of a counseled
position rather than a reiteration of remembered events and
statements. I find that the testimony of Editor-in-Chief Chen
and City Editor Horng denying the remarks attributed to Horng
are equally unworthy of reliance and discredit them to the ex-
tent they are inconsistent with Wang and Chao.
Critical to my resolution is the questioning at the meeting by
reporter Sunny Yen as described by Chao and Wang. I do not
believe this detail of the testimony would have been fabricated
to enhance the believability of the witnesses’ description of the
meeting. Yet, the question presented by Yen, which I find was
asked at the meeting, makes it clear that at least Yen believed
that the Respondent’s agents were announcing rules and restric-
tions on the employees’ rights of assembly. This element both
supports and augments my findings above.
Given these credibility resolutions, I find the counsel for
General Counsel has met her burden of proof of showing that
the Respondent in this meeting wrongfully limited the employ-
ees’ right to meet apart from supervision in the discussion of
working conditions. This conduct violates Section 8(a)(1) for
the reasons given above. I therefore sustain the General Coun-
sel’s complaint paragraph 10.
d. Complaint paragraph 11—The June 6, 2001
memorandum
Complaint paragraph 11 alleges that on or about June 6,
2001, the Respondent, at the Corporate Center facility, by
memorandum distributed to employees, threatened employees
with job loss because of their support for or selection of the
Union as their bargaining representative.
(1) Evidence
Technological change seems to occur at an ever increasing
rate. I administratively notice that for many years technological
change has been profound in the printing trades and in newspa-
per preparation and printing historically and that such change
continues apace in the current computer age. The United Daily
News Group and its constituent newspapers including Respon-
dent have not been immune to this process. In the United Daily
News monthly publication dated February 2001 and distributed
to the Respondent’s employees in the February-March period
of 2001, an article noted that new technology, CTP,5 allowed
for essentially computer-driven paperless preparation of the
newspaper from writing through editing into preprinting with
concomitant saving of labor.
The translated article asserted, “[N]ewspapers all over the
world already starting doing this, so we [have] already started
the planning stage to agree to bring this technology in.” The
article quoted United Daily News Group leadership as hoping to
implement the new technology over a 3-year period with an
initial result cognizable in 2003.

5 CTP is an acronym for “Computer to Plate.” CTP is a description
of the intermediate stages of newspaper publishing from the written
article in the reporter’s computer to the completion of the printing
plates which are used to physically print the paper. Thus, the phrase is
shorthand for the various intermediate stages in the preparation of the
newspaper starting from the written articles through editing, proofing,
formatting, and the subsequent preprint processing. More importantly it
is also reference to the new technology which provides for automation
or computerization of these steps with important and potentially far
reaching consequences for the type and location of newspaper preparation
work done and the number of unit employees employed to do such
work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD924
The record also makes clear that at relevant times the Re-
spondent’s employees were in various degrees aware of the
potential of new technology implementation to reduce the num-
ber of unit jobs at the newspaper and to change the work of
other unit employees. They were also aware of, and at least a
few had discussed with supervision, the fact that the United
Daily News Group and the Respondent were actively consider-
ing such changes and their costs and ramifications.
On or just after June 6, 2001, during the course of the hear-
ing on objections to the election, the Respondent issued a memo-
randum to employees dated June 6, 2001, entitled: “Let the Truth
Speak Out”6 noted as from “the President’s Office.” The memo,
in Chinese, covered various topics including improvements in
health insurance coverage, technological change in the newspa-
per industry, and the plans of the United Daily News Group and
the Respondent respecting the changes. The new “CTP” tech-
nology was discussed.
The CTP technology was explained in some detail. The fact
that implementation would reduce staffing requirements for
editing, news coverage and printing was explicitly mentioned.
The memorandum noted that employees have expressed con-
cerns that jobs would be eliminated and or simplified. The
memo stated that in regards to the Respondent’s implementa-
tion of technological changes it wished to inform the employee
of several matters. The memo then presented four numbered
paragraphs. The first indicated that the implementation of tech-
nological changes was under study and that change could not
simply be resisted.
The second paragraph of the four, in the Respondent’s sub-
mitted translation, states:
No. 2, history and actual data have told us that the cost of run-
ning an enterprise that has [a] labor union increase[s] signifi-
cantly. In order to take protective measures in advance and to
take precautions against a calamity, the Newspaper Agency
must consider all options and alternatives, from various cost-
cutting measures to enhancement of efficiency, with the ob-
jectives of maintaining the survivability of the enterprise as
well as protecting the vested interests of the staff.
The third-numbered paragraph states that various technology
implementation plans were under consideration and their
strengths and weaknesses were being evaluated. The memo
recited that no decision had as yet been taken and no conclu-
sions could as yet be reached. The fourth-numbered paragraph
urged employees to continue to work with peace of mind and
assured employees that the United News Publisher would con-

6 The Respondent during relevant times distributed occasional letters
or memoranda to employees under the title “Let the Truth Speak Out”
presenting the Respondent’s views on various matters relevant to the
organizational campaign and subsequent employee union activities. All
these communications were written in Chinese only.
The memorandum was offered into evidence initially with three
separate English language translations. That number was thereafter
reduced to two: one submitted by the General Counsel and one by the
Respondent. The General Counsel and the Respondent were unable to
agree upon a single translation and concluded that a translation from
each would be put in evidence and they would argue any substantive
differences on brief.
sider its technology choices with fairness, sensibility, and the
interests of all in mind.
The final two paragraphs in summing up included the admoni-
tion: “Only the Newspaper Agency can give our colleagues
more welfare and benefit. It has always been like that in the
past without a labor union.”7
Editor Pao testified that based on his long experience in the
newspaper industry, he believed that if the CTP technology
being considered were fully implemented at the Respondent, as
many as 30 unit jobs would be lost.
(2) Analysis and conclusion
Counsel for the General Counsel describes the standard to be
applied to the Respondent’s communication with employees:
An employer is entitled to communicate with its employees
about unionization so long as the communication does not
contain threats of reprisal which might reasonably tend to re-
strain and coerce employees in the exercise of their rights un-
der the Act. [GC Br. at 95.]
Counsel for the General Counsel further argues on brief that
the conduct at issue was undertaken during the course of objec-
tion hearings. She argues:
In promulgating and distributing a memo linking automa-
tion and job loss with union organizing, the Respondent went
beyond the bounds of permissible free speech. [GC Br. at 95.]
The General Counsel asserts that the Respondent told employ-
ees that it was investigating the feasibility of the technological
changes at its plant, asserting that change was necessary to stay
competitive, and then asserted that when a company is union-
ized, costs increase so money must be saved. Counsel for the
General Counsel argues:
Thus the implication is that the Respondent would be forced
to cut expenses by instituting CTP and laying off employees if
the Union were certified. The Respondent then brought this
message home reiterating that only the company can pro-
vide benefits so long as the employees remained “reason-
able”, and repeated that the company does not need a Union.
[GC Br. at 96.]
The technological changes in the industry were fairly de-
scribed and discussed by the Respondent’s written material and
the Respondent was clearly and correctly describing the possi-
ble implementation of the technology at the newspaper. The
Respondent also made it clear the technology was still being
assessed. The Respondent notes not only the accuracy of its
statements but argues: “This is the precise type of speech which
Section 8(c) [of the Act] must protect.” (R. Br. at 32.)
There is no doubt that an employer is entitled to truthfully
explain circumstances which may have an impact in the future
on the employer and on employees. The Government here ar-
gues that when the Respondent seemingly linked union-caused
increases in the cost of running a business with its considera-
tion of “protective measures” such as job-eliminating techno-

7 The quoted language is from the Respondent’s translation. The Gen-
eral Counsel and Charging Party’s version states: “We do not need the
union—we have never needed it.”
CHINESE DAILY NEWS 925
logical implementation over which it has total control, employ-
ees would reasonably perceive the statements as a threat. The
Respondent characterizes the communication simply as expla-
nation and prediction not threat.
As in fact occurred among the Respondent’s employees, em-
ployees generally would reasonably be concerned that the Re-
spondent might well undertake its self-described “protective
measures” and “precautions against a calamity” by considering
alternatives including technological changes if employees were
represented by a labor organization. The words used by the
Respondent quoted here foreshadow precautionary actions.
Thus I find the Respondent’s communication reasonably would
be perceived by employees as portending adverse consequences
if the Respondent’s employees were organized.
The issue in this aspect of the case is distinguishing permis-
sible predictions for impermissible threats as established by the
Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The
Court noted at 395 U.S. 618:
A prediction must be carefully phrased on the basis of objec-
tive fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control. [Citation omitted.]
. . . . If there is any implication that an employer may or may
not take action solely on his own initiative for reasons unre-
lated to economic necessities and known only to him, the
statement is no longer a reasonable prediction based on avail-
able facts but a threat of retaliation based on misrepresenta-
tion and coercion, and as such without the protection of the
First Amendment.
Here the Respondent has not based the picture it paints of
possible job elimination on demonstrably probable conse-
quences. First, the Respondent based its prediction of increased
costs on “history and actual data” when costs at such a macro
level are largely within the control of the employer. Second and
importantly here, the Respondent states that the actions it may
take regarding technological change will be “protective meas-
ures” taken “in advance . . . precautions against a calamity.”
This statement describes ominously a process of decision-
making and events entirely within the Respondent’s control and
not dependent on economic circumstances but in anticipation of
unionization.
Given the record as a whole and the communications at issue
in the broader context of the election campaign and the matters
in contest herein, and guided by the teaching of Gissel and its
progeny, I find that the Respondent’s statements at noted above
were reasonably perceived by employees as threats and that
they were not permissible predictions sheltered by Section 8(c)
of the Act. I find therefore that the General Counsel has sustained
paragraph 11 of the complaint.
e. Complaint paragraph 12—The posting of company
memoranda
Complaint paragraph 12 alleges that the Respondent, at the
Corporate Center facility, posted and maintained at a location
near an employee’s work station memoranda disparaging, criti-
cizing and personally attacking the employee because of the
employee’s union and protected concerted activities.
There is no dispute that the Respondent distributed copies of
two issues of “Let the Truth Speak Out” communications in
September 2001. Copies of these two issues were posted in the
Respondent’s reporters’ area on the periphery of the bulletin
board along with other “overflow” documents near the work
station used by employee Lien Wang.
In a rejoinder to prior union communications to employees,
one of the posted September issues of the “Let the Truth Speak
Out” addressed various matters. It asserted in part:
Even though the union has not received any legal status, news
reporter Wang Lien Yi and other union supporters are still
continuing their suit against the newspaper before the Labor
Commission [NLRB]. The latest example is a 23-charge suit
groundlessly charging Assistant General Manager Wang Wen
Shan, Bureau Chief Sue Min Sheng, Editor-in Chief Chen Shi
Yao, and Assistant Editor-In-Chief and Newsroom Chief Jin
Fue, all from the United Daily news. Did the union supporters
hope that the newspaper would “surrender,” sit down and be
shot, and admit to these fabricated accusations? If we are con-
vinced that contention under law is the best way to protect
one’s rights, we must hire the best attorney and consultants to
protest our interest and future.
The other posted September issue of “Let the Truth Speak
Out” also discussed charges against the “Newspaper,” the fact
that news reporter Wang Lien Yi had filed charges with the
Labor Commission [NLRB] and argued that the newspaper was
innocent of all the allegations against it. The issue challenged
the good faith of the various charges of the Union and sug-
gested that news reporter Wang rather than being a victim of the
Newspaper is protected by the Union. The issue generally de-
fended the good faith of the Newspaper and asserted the Union
was not reasonable or acting in the employees’ interest. It con-
cluded with the hope and exhortation that the employees should
“usher out the union from the newspaper.”
Wang testified that the posting occurred when she was out
on sick leave and that on her return they were in place as de-
scribed above and remained posted for about a year. She heard
from other employees that they mentioned her name and that
she became uncomfortable using the computer in the area.
The General Counsel argues that the postings were the respon-
sibility of the Respondent and were publicly humiliating to
Wang. The General Counsel asserts that the content and loca-
tion of the postings taken together had the reasonable effect of
restraining and coercing Wang, as well as the other employees,
who saw them posted so near to Wang. No cases were cited in
support of the proposition, however.
The Respondent asserts that the posting was undertaken by
an unknown person. Treating the complaint allegation as a per
se attack on the language of the letters, the Respondent cites
cases for the proposition that they do not violate Section 8(a)(1)
of the Act.
I do not take the General Counsel’s theory of a violation as
including the argument that the documents posted were viola-
tive because of their content. Rather I find that the Government
is arguing that the otherwise not illegal letters when posted and
maintained next to Wang’s work area were a humiliation that
violated Section 8(a)(1) of the Act. Without supporting author-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD926
ity, I am unable to find that the posting of the two documents,
not in and of themselves alleged to violate the Act, near
Wang’s work area rises to the level of a violation of the Act.
Further the record does not identify the poster nor is there evi-
dence that Wang or anyone else complained about the posting
or sought removal of the documents. Thus there is no evidence
other than the simple posting of the documents to connect the
Respondent to an effort to humiliate Wang. Given all the above
I find and conclude that the General Counsel has not sustained
his burden of proof with respect to complaint paragraph 12 and
I shall therefore dismiss it.
f. Complaint paragraph 13—The June 5, 2002
memorandum
Complaint paragraph 13 alleges that Horng, by written
memorandum, threatened an employee with unspecified repri-
sals for engaging in union and protected concerted activities.
On April 12, 2002, the first anniversary of the representation
election, the Union held a press conference outside the Respon-
dent’s facility. The event included attending Union and elected
officials as well as media coverage. Wang spoke at the gather-
ing, encouraged employee support for the Union, and viewed
with alarm and disapproval the Respondent’s activities in oppo-
sition. She described her remarks at the gathering:
I say I think people show support for us and I say we are
proud to be a member of the newspaper, so many years we
are the voice of the community. We advocate all the human
rights, people’s rights, civil rights, labor rights, all kind of
rights for this community. We believe that the union is a good
tool to make the company more prosperous I also mention
about after we won the election the company fired union sup-
porters, publicly humiliate those union supporters and keep us
scared. So why it is so important for those community mem-
bers to come and support us, and tell those people in the
building behind us to support a union.
During cross-examination she added that she also said that the
Respondent: “abused the legal system and fired Union support-
ers and the Company humiliated them.” She denied making any
reference to a specific number of employees fired or naming any,
although she testified she had Chen in mind during her remarks.
The Respondent’s agents did not attend the event but thereafter
received reports of what had transpired.
On or about June 5, 2002, at a reporters’ meeting, Wang re-
ceived a letter from City Editor Horng dated June 1, 2002, cap-
tioned: “False and Misleading Statement.” The letter states in
part:
In an April 12, 2002, press conference you made sev-
eral statements which are misleading and in some respects
completely untrue.
You accused the [Respondent] of wrongfully terminat-
ing two reporters and someone from the factory. Your ac-
cusation does not take account of the real facts and sheds an
unwarranted negative light on the [Respondent] as well as
your own credibility as a reporter.
. . . .
Your job as a reporter requires you to get all sides of a
story and to report accurately and in a balanced fashion
what you find. Your April 12 comments reflect fundamen-
tal problems in your skill as a reporter. If you did not
check your facts before you spoke, you should have. If
you knew what you said was false or misleading before
you spoke, you should not have said it.
We trust that you will be more accurate in the future in
your research and your statements. You have legal rights
to support a union and to express your opinion. However,
also consistent with the law, you should expect to be held
accountable for any damage which your false or mislead-
ing statements cause the [Respondent].
The omitted portion of the letter quoted above deals with the
Respondent’s disagreement with claimed statements made by
Wang at the April 12 event respecting the termination of sev-
eral employees whom she named: Jen Chen, Sunny Yen, and
William Chen.
The General Counsel argues that Wang’s statements at the
union event were clearly union activities and they did not deal
with any type of product disparagement which would cause her
remarks to lose the protection of the Act. The General Counsel
further argues that the Respondent’s letter contains a clear if
nonspecific threat, i.e., to hold Wang “accountable” for any
“false and misleading statements” made by her “in the future.”
Counsel for the General Counsel argues, on brief at 90:
The warning issued by Respondent would reasonably have a
chilling effect on Wang’s statutorily protected activates, and
was so broadly worded that an employee would likely be
concerned that any criticism of Respondent to any person
would be considered defamatory and, accordingly, a possible
basis for future discipline. Thus, in the absence of any other
rational for the issuance of this warning, it must be con-
cluded that Respondent intended to restrain and coerce Wang
in her role as the union’s spokesperson.
Thus, the General Counsel argues that the Respondent’s threat
must be held to violate Section 8(a)(1) of the Act.
The Respondent suggests a’similar allegation in Sea Mar
Community Health Center, 345 NLRB 947 (2004), has been re-
jected by the Board. Counsel for the Respondent further argues
on brief at 26:
The allegation lacks merit and should be dismissed absent
withdrawal. A failure to do so would compromise the [Re-
spondent’s] legal rights to employ truthful reporters, to ex-
plain and cure potentially false and damaging communica-
tions, and to confirm intentions to follow the law. This
would strike at the heart of the [Respondent’s] reporting and
business operations which rely on the credibility of the [Re-
spondent’s] reporters and their accurate recitation of fact.
At the threshold, I find Wang’s remarks at the press confer-
ence were union activities. Further in agreement with the Gen-
eral Counsel I find the Board’s line of cases respecting “loy-
alty” are distinguishable. See NLRB v. Electrical Workers Local
1229 IBEW (Jefferson Standard), 346 U.S. 464, 472 (1953). The
statements involved herein deal with the Respondent’s labor
relations and unfair labor practices.
Further, I find in agreement with the General Counsel that the
letter to Wang contains a threat to her based on what she might
CHINESE DAILY NEWS 927
say “in the future.” By its terms, the letter states that if Wang
makes statements in the future during union events about the
Respondent’s labor relations which are “false or misleading”
then she will “be held accountable for any damage which your
false or misleading statements cause the [Respondent].” Under
conventional analysis there is no question that such conduct
violates Section 8(a)(1) of the Act.
The Respondent, however, raises an important recent Board
case addressing a business justification respecting newspaper
reporters which can rise to the level of a defense to a violation of
Section 8(a)(1) for chilling employee protected concerted or
union activities. Sea Mar Community Health Center, supra. It is
appropriate to consider that case in some detail. In California
Newspapers, a reporter and bargaining unit member ap-
proached a local city council member seeking support for the
union in negotiations with the newspaper. The newspaper
through its agents Voros and Stafforini met with the reporter,
Anderson. The Board described the exchange at 345 NLRB at
947:
They told Anderson that they were concerned about the ap-
pearance of a conflict of interest because Anderson had gone
before the city council to ask for a favor, when Anderson
might be reporting about the city or city council, and in fact
had written a story that involved city sources and was about
city government. Voros and Stafforini told Anderson that they
felt some-one else should have spoken to the council instead
of Anderson. They explained the importance of protecting the
integrity and credibility of the paper. They emphasized, how-
ever, that Anderson had the right to engage in union activity.
They told Anderson that their concerns were unrelated to the
fact that Anderson’s remarks to the city council had been
about the Union. At the end of the discussion, Voros reaf-
firmed that Anderson was a valued employee. Anderson was
not disciplined.
The Board found, reversing the administrative law judge,
that while the activity of the reporter was protected, and assum-
ing that the employer conduct interfered with Section 7 rights,
the employer had demonstrated a legitimate and substantial
business justification that outweighs the adverse effect on Sec-
tion 7 rights. They stated at 345 NLRB at 948:
The Respondent has a legitimate interest in protecting its
newspaper against the appearance of conflicts of interest that
could damage the paper’s credibility. As the District of Co-
lumbia Circuit has stated,
[P]rotection of the editorial integrity of a newspaper lies
at the core of publishing control. In a very real sense,
that characteristic is to a newspaper or magazine what
machinery is to a manufacturer. At least with respect
to most news publications, credibility is essential to [a
publisher’s] ultimate product and to the conduct of the
enterprise. Newspaper Guild Local 10 (Peerless Publi-
cations) v. NLRB, 636 F.2d 550, 560 (D.C. Cir. 1980).
In the instant case the Respondent argues, not the protection of
its newspaper against the appearance of conflicts of interest that
could damage the paper’s credibility, but rather protection
against the appearance that its reporter was not credible. Thus,
the Respondent seems to argue, as it stated in its letter to Wang:
Your job as a reporter requires you to get all sides of a story
and to report accurately and in a balanced fashion what you
find. When a reporter fails that, even if this occurs when act-
ing as the Union spokesperson on her own time at a press
conference held by the Union, the Respondent is entitled to
warn the reporter that that she would be “held accountable”
for any future unbalanced conduct which “sheds an unwar-
ranted negative light on the [Respondent] as well as your own
credibility as a reporter.”
I do not read Sea Mar Community Health Center as broadly
as the Respondent. The Board in Sea Mar Community Health
Center emphasized that the employer went out of its way to
make it clear that union activities was not the issue and that no
discipline was imposed. In the instant case, if the Respondent
were correct, no reporter could ever serve as an advocate for a
union attempting to organize employees in any public forum
since such a position does not involve reporting “all sides of the
story” in a “balanced fashion.” If the Respondent could require
such professional neutrality in public statements by those of its
employees who were advocates for the Union, the employees’
advocacy would be neutralized. If reporters could be punished
for such advocacy, their union activities would quickly be
chilled to cessation. The Board simply did not go so far in Sea
Mar Community Health Center. Rather I find, for the reasons
given, that the Respondent may not rely on Sea Mar Commu-
nity Health Center to justify its conduct herein.
Moreover, I find that the true reason for the letter was not the
Respondent’s unhappiness with Wang’s credibility, but rather
with her representations which, as the letter notes, sheds a
negative light on the Respondent. This unhappiness with labor
organization advocates’ statements is not unique to the news-
paper industry or this employer. Further the employer may not
prevent such partisan even unbalanced rhetoric through warn-
ings or discipline. To do so violates Section 8(a)(1) of the Act. I
so find here. I therefore sustain the General Counsel’s com-
plaint paragraph 13.
g. Complaint paragraph 14—The July 26, 2002
memorandum
(1) Evidence
Complaint paragraph 14 alleges that the Respondent by Edi-
tor-in-Chief Chen and President Su, in a written memorandum
distributed to employees, threatened an employee with unspeci-
fied reprisals for engaging in union and protected concerted
activities.
The Respondent regularly conducts monthly management
meetings and minutes of those meetings are distributed to man-
agement. In the minutes of the July 2002 meeting, Editor-in-
Chief Chen and President Su had comments attributed to them
respecting the union activities of employee Yun-Min Pao. The
minutes stated in part:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD928
From Chief Editor Mr. Chen
I was on vacation on July 19, so colleagues told me
that editor, Yun-Min Pao who is very active on organizing
union passed out so-called “Union Newsletter” at 2:30
AM on that day. Although Mr. Pao had already turned in
his edited pages and was off work, the law run of paper
printing had not yet started, and many other colleagues
and managers were still on duty in the office. Overall, it is
neither non-working hour, nor break time, so Mr. Pao’s
action might be illegal.
Besides passing out union newsletter, Mr. Pao had a
similar action few months ago. I think these actions might
be against labor laws or related laws because he tried to
organize union during office hours, disturbed other col-
leagues’ working, or affected the office order. We should
inform the consultant based on these facts to see whether
Mr. Pao’s behavior is legal or not and take necessary ac-
tions. We don’t want few colleagues to think they can do
whatever they want without fear, harm the office atmos-
phere, and influence other supporting colleagues’ view-
points toward the newspaper.
From the chairman of the meeting, President Su:
Conclusion and Summary of the meeting:
Editor Yun-Min Pao, active on organizing union, re-
peatedly passed out union newsletter during working hours
in the office. Is what he did against USA Labor Laws or
related laws? Please review and check actual facts to pre-
sent the consultant and attorney for study and action.
No action was ever taken against Pao for the actions discussed
in the minutes.
Monthly management meeting notes had not been distributed
to employees nor posted for many years, nor throughout the
years of Editor-in-Chief Chen’s appointment. They were re-
guarly distributed to managers including Teu Cheng Chu, the
director of editing and Editor Yun-Min Pao’s supervisor.
Yun-Min Pao testified that when he came into work a copy
of the Chinese-language original of the monthly management
meeting minutes, translated excerpts of which are quoted
above, were on his supervisor, Teu Cheng Chu’s, desk. He
testified that they were left there regularly and he had read them
on many occasions. Further, he testified he believed his fellow
employees read them as well and, testifying about the entire
original Chinese-language document which was not offered
into evidence, testified that in the upper right-hand corner of the
first page of the minutes it stated they were distributed to co-
workers. He testified further that other copies of the minutes
from other management meetings were also so marked,8 he had
personally observed other employees reading those notes and
that his supervisor, Teu Cheng Chu, had on occasion observed
his reading of the management meeting minutes on the director
of editing’s desk.

8 He identified the wording in another minute in its upper right-hand
corner as: “Please Distribute It To The Employees Of All Depart-
ments.”
Pao testified that after reading the notes, part of which are
quoted above, he took them and copied them, retaining the
copy he made and returning the original to Teu Cheng Chu’s
desk—all before Chu had arrived to work. Pao did not assert that
he had ever received permission or authority to copy or retain
management meeting minutes.
Teu Cheng Chu testified that he obtained a complete set of
minutes of the monthly management meeting, part of which is
quoted above, at a management meeting. While he did not spe-
cifically recall the particular document, he testified that without
exception he put management meeting minutes in his desk and
did not leave them on his desk or otherwise available for em-
ployee view. Further he testified he never distributed such min-
utes nor authorized employees to read them or remove them
from his desk. Both President Su and Editor-in-Chief Chen
testified that the management meeting minutes were confiden-
tial, contained confidential information, and were never passed
out to employees or posted.
(2) Analysis and conclusions
The General Counsel does not allege that the minutes at is-
sue or the statements made in the meeting minutes described
violate the Act. Those events were between and among mem-
bers of the Respondent’s management team. Rather, the Gen-
eral Counsel contends that the Respondent deliberately left the
minutes out where Pao could read them and by that action the
Respondent violated Pao’s Section 7 rights.
The Respondent challenges the factual basis of the General
Counsel’s theory asserting first that the Respondent did not in
fact make the notes available to Pao. Rather the Respondent con-
tends that Pao engaged in the unprotected acts of pilfering and
wrongfully copying the confidential management minutes.
Thus the Respondent argues it not only did not intend or allow
Pao to have access to the notes, his unprotected act of acquisi-
tion further insulates the Respondent against any finding of a
violation.
I credit President Su and Editor-in-Chief Chen that they re-
garded the management meetings and the minutes of the meet-
ings to be confidential and I further credit them that they did
not believe they were being read by employees. I also credit
Pao however that he took the notes to be nonconfidential in part
because they were designated on their face as to be distributed
to employees.9 The testimony of Pao and Teu Cheng Chu are at
variance regarding their habit and custom concerning the min-
utes and regarding Pao’s access to the memos generally. I find it
unnecessary to resolve that conflict. I reach this conclusion be-
cause I find that crediting either individual does not turn my
conclusions respecting the allegation.
I find and conclude that on the undisputed facts, the Respon-
dent did not violate the Act when Pao read the contents of the
minute. Given that the meeting that the minutes describe is not
under challenge, a violation would have occurred if and only if
the Respondent knowingly or recklessly published the memo-

9 Only the excerpted portions of the minutes were offered into evi-
dence, and those minutes were offered in English translation only. But
Pao, with the original Chinese minutes before him, testified without
objection that the document bore the notation described.
CHINESE DAILY NEWS 929
randum to Pao. Here, neither of the agents who are accused of
the violation: President Su and Editor-in-Chief Chen, had knowl-
edge or even suspicion that the minutes of the meeting would
come to be read by Pao. Indeed, Teu Cheng Chu could not have
had such knowledge since the minutes were read by Pao before
Teu Cheng Chu arrived at work that day.
Even if Teu Cheng Chu knew generally that Pao often read
such minutes, the General Counsel by that fact has not sus-
tained the complaint allegation that the minutes were “distrib-
uted to employees.” I simply find that the totality of circum-
stances regarding the custody and control of the minutes was
such that the Respondent may not be held to have acted so un-
reasonably that it could be charged with in effect publishing the
minutes to Pao. Thus, I do not find in the entire context of
events, that the Respondent by its conduct improperly threat-
ened Pao when he read the minutes. This being so, it is not
necessary to consider or determine whether or not, even if the
Respondent could be charged with such a publication, that the
Act was thereby violated.
I find therefore that the General Counsel has not sustained his
burden of proof that the Respondent violated the Act as alleged
in paragraph 14 of the complaint and that paragraph shall be
dismissed.
h. Complaint paragraph 15—Printing Supervisor Huang
Fan-Chiang solicitation in November 2002
Complaint paragraph 15 alleges that about November 2002,
Huang Fan-Chiang, in the employee lounge of the Corporate
Center facility, solicited employees to sign an antiunion peti-
tion.
Chih-Ming Sheu is a long-term employee of the Respondent
working as a printer on the nightshift. His immediate supervisor
is Print Group Leader Huang Fan-Chiang, an admitted statutory
supervisor. Sheu was an early and well known union supporter.
He testified that at the end of November 2002, he heard about,
but had as yet not seen, an antiunion petition that employees
were being asked to sign. At around midnight, he was in the
employee lounge alone with his Supervisor Huang Fan-Chiang.
Fan-Chiang told Sheu that he was the only employee that had
not signed the petition and that he had to go “upstairs,” i.e., to
the president’s office, to sign the petition.
Sheu testified he told Fan-Chiang he would not sign the peti-
tion, that his support of the Union was a personal decision and
as long as he did his work for the employer “that’s it.” In re-
sponse Fan-Chiang told him, in Sheu’s memory:
Mr. Fan said, because I said I’m not going to sign it, this piece
of paper, he said if I don’t sign this petition he will tell the up-
per management that he couldn’t not find me.
Sheu gave the Regional office an affidavit describing the
same events. It recites a conversation with Fan-Chiang in the
lounge in which Fan-Chiang informs him that he is the only
employee left who did not sign the petition and that Sheu told
him he would not sign the petition. The affidavit recites that
Fan-Chiang replied that if Sheu would not sign the petition he
would tell management that he was unable to find Sheu and
therefore had not asked Sheu to sign the petition. It also states:
“Fan-Chiang never asked me to go to the “third floor” or to
President Su’s office to sign the petition, since he already knew
that I am pro-Union.” Shown his affidavit, Sheu reiterated that
he was in fact asked to go to the third floor offices by Fan-
Chiang.
Fan-Chiang testified respecting these events. He recalled that
he had earlier heard about the antiunion petition and seen em-
ployees signing it, but had not read it himself. He specifically
denied asking any employees to sign the petition. Rather he
asserted that when learning the nature of what the employees
were signing, he withdrew telling them he would not be in-
volved. He did not recall a midnight lounge conversation with
Sheu. He categorically denied asking Sheu to go upstairs to
sign the petition; he denied telling Sheu that he was the only
one who had not signed the petition and he denied telling Sheu
that because he would not sign the petition, Fan-Chiang would
tell management that he had been unable to locate Sheu. He
asserted that he would not ask Sheu to sign an antiunion peti-
tion since he well knew that Sheu was a strong supporter of the
Union.
The General Counsel argues that Sheu should be credited
and, based on that credited testimony, it should be found that
the Respondent’s admitted agent and supervisor, Fan-Chiang,
violated the Act by soliciting Sheu to sign the petition. The
Respondent argues to the contrary that Fan-Chiang should be
credited and no solicitation found to have occurred. Further,
argues the Respondent, even should Sheu be credited, the state-
ments made were innocuous and do not support a finding that
the Act was violated.
I have considered the testimony of Sheu and Fan-Chiang in
light of the record as a whole and their demeanor. I find, credit-
ing Sheu, there was a meeting of the two men and that the peti-
tion was discussed. Were it necessary to resolve this disputed
allegation, I might well credit Sheu further and find that Fan-
Chiang did in fact tell him that Sheu was the only one who
had not signed the petition and that Fan-Chiang would simply
tell higher management that he could not locate Fan-Chiang.
But I cannot credit Sheu’s testimony that he was asked by
Fan-Chiang to sign the petition. Sheu’s testimony in this re-
gard is importantly impeached by his own affidavit. And, as
the Respondent argues, Fan-Chiang asserted, and logic sup-
ports, Sheu’s strong and open support for the Union made
such a solicitation by Fan-Chiang, who knew he was a strong
union supporter, improbable.
Given this important credibility resolution, I find the General
Counsel has failed to meet his burden of proof that the Respon-
dent, through Fan-Chiang, solicited Sheu to sign an antiunion
petition. Having reached that conclusion, it is unnecessary to
resolve the remainder of the disputed events because, under all
versions of those events, absent such solicitation, the Respon-
dent has not violated the Act as alleged. The General Counsel’s
complaint paragraph 15 is therefore without merit and will be
dismissed.
i. Complaint paragraph 16—January 2003 Ming
Chiang interrogation
Complaint paragraph 16 alleges that on or about January
2003, the Respondent through Ming Chiang, in a telephone
conversation, interrogated an employee about the employee’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD930
union and/or protected concerted activities, and the union
and/or protected activities of other employees.
The Respondent’s truckdrivers are in the Circulation De-
partment. The drivers had not had a foreman until 2002. In
October 2002 Ming Chiang was hired and came to be fore-
man.10 For various reasons, driver employees were unhappy
with Chiang as foreman and came to prepare and submit to the
Respondent a group communication. The communication,
dated January 24, 2003, written in Chinese, bore the signatures
of 9 of the approximately 16 drivers. It stated in part:
Request position of circulation department foreman to be se-
lected by direct election of drivers. Election to be held once a
year and can be reelected unlimited times. Explanation:
• Last year (2002) Chinese Daily News held direct
election for foreman;
• Current foreman not same selected by direct elec-
tion;
• Drivers feel deeply for democratic process and vio-
lates the intention of the drivers
We join together to make request according to the above
method to select foreman.
Chao Chan Kan, a truckdriver in the circulation department,
testified regarding events following the submission of this
letter:
After—about two or three days after the letter has been sub-
mitted and [Ming Chiang] call me up. I was at home. He
asked me whether that the driver had joined together and
signed a letter to send to the management. I say yes.
Q. And what did he say?
A. Who is the leader?”
Q. And did you answer him?
A. I said, “I won’t tell you.”
The General Counsel argues that the credible, uncontested tes-
timony should be credited and the interrogation found to violate
Section 8(a)(1) of the Act. Counsel for the General Counsel
notes the interrogator was the very person against whom the
protected concerted complaints were directed and that no assur-
ances or justification accompanied the questioning.
The Respondent argues on brief at 43:
Ming Chiang is no longer employed at the CDN and was not
called as a witness. The alleged interrogation is a de minimus
isolated instances in these circumstances since the petition
was signed and it was common knowledge that Jeffrey Sun
wrote the petition and was the leader.
I find the General Counsel’s argument persuasive. Kan’s tes-
timony was credible and Chiang did not testify. An interrogation
directed to identification to the employee “leader” of a protected
concerted protest or other communication directed to manage-
ment is impermissible. Such an inquiry makes it clear to em-
ployees that management wants to identify the “leader” and
therefore finds it relevant to do so. Employees may reasonably

10 The Respondent admitted Ming Chiang to be a supervisor within
the meaning of Sec. 2(11) of the Act.
perceive the relevance of that knowledge is for the purpose of
the employer taking action against the leader. When a Respon-
dent agent making the inquiry is the subject of the employee
concerted complaints, there is little doubt employees learning
of such an inquiry will be reluctant to exercise their Section 7
rights in consequence. Further, the interrogation was not in fact
isolated given the various other findings herein. I therefore
sustain the General Counsel’s complaint paragraph 16.
j. Complaint paragraph 17—The January 26, 2003 Hsan
Hsiao Hsu interrogation allegation
Complaint paragraph 17 alleges that on or about January 26,
2003, Hsan Hsiao Hsu at the Corporate Center facility, interro-
gated an employee about the employee’s union and/or protected
concerted activities.
Driver Sun testified that he was the author of the January 24,
2003 letter quoted in part above and that he was one of the nine
signatories. A few days thereafter, he had a conversation with
Circulation Director Hsan Hsiao Hsu alone in the parking lot
regarding the communication. He testified that Hsu was holding
in his hand the letter with the nine signatures and asked him:
“Whose idea is this?” Sun responded that the letter resulted
from conversations “from everyone.” Hsu then read a letter
from President Su, the essence of which was that he did not
support the election of supervisors by staff and would not ap-
prove the request. Sun recalled that Hsu told him that Su in-
tended that the supervisor position would always be filled by
management and had scolded Hsu for having held the earlier
election. The conversation then shifted with Hsu remarking that
an employee had been caught by the security camera stealing
newspapers
Chao Chan Kan testified that after the submission of the let-
ter described above, he was leaving work when he came upon
Director Hsan Hsiao Hsu and the two had a conversation which
he described:
Q. Describe the conversation for me. What was said?
[Circulation Director Hsan Hsiao Hsu] asked the ques-
tion whether that you’re very unhappy with this foreman.
Q. Go on.
A. Yes. We say that the drivers are very unhappy.
Q. What else was said during this conversation?
A. He asked me why. I said that Jiang Ming thought
that he had strong back up.
Q. What does that mean, strong back up? Did you ask
him what that means?
A. That he is going to do this. But we try to get rid of
him, is impossible.
Q. What else was said?
A. And he also said, I heard him say that he is going to
fire one of the senior drivers. Q. Did he tell you who?
A. No, no, no.
Kan was told by Hsu that the company has a videotape of an
employee stealing papers and that he was going to be fired. He
told Kan to be careful.
Circulation Director Hsan Hsiao Hsu testified that he knew
that as a supervisor he was not entitled to ask employees about
their union or protected activities and that he was not curious as
CHINESE DAILY NEWS 931
to who had authored the letter regarding the delivery foreman.
He specifically denied asking any employee about the identity
of the writer of the letter.
The General Counsel argues that his witnesses should be
credited and that a violation should be found. Counsel for the
General Counsel argues that Sun and Kan corroboratively de-
scribe a pattern of conduct by Hsu. Further she argues that be-
cause the conversation was quickly turned by Hsu from the
identity of the writer of the letter, to the president’s opposition
and then to the firing of a driver, that the interrogation reasona-
bly had a particularly chilling effect on employees’ concerted
activity. The Respondent argues his witnesses’ credibility given
the disputed testimony and further argues the conduct does not
rise to the level of a violation of the Act.
I found Hsu’s denials unpersuasive and perfunctory. I credit
both Sun and Kan both because of their more persuasive de-
meanor and because they credibly described similar conduct by
Hsu and, in so doing, essentially corroborate one another.
Based on the analysis immediately preceding, I find the inter-
rogation violates Section 8(a)(1) of the Act and that the General
Counsel has met his burden of proof regarding the conduct
alleged in complaint paragraph 17. Paragraph 17 of the com-
plaint is sustained.
k. Complaint paragraph 18—The February 2003 allegation
against President Su
Complaint paragraph 18 alleges that in about February 2003,
President Su, at the Corporate Center facility, instructed an
employee not to sign letters or petitions or to otherwise engage
in concerted activities.
Driver Jing Hua Zhang testified that he had a role in drafting,
and signed the letter, quoted in part above, concerning the
driver foreman and about a week after its delivery spoke sepa-
rately with Business Manager Gao and President Su. He first
spoke to Gao suggesting to him that the drivers did not need
Jiang Ming as a foreman. Gao acknowledged that the employ-
ees who signed the petition did not want Ming as foreman and
asked who wrote the letter, to which Zhang responded: “every-
one.”
Later that same day, Zhang testified he went to President
Su’s office and there spoke to President Su alone. He described
what was said:
I said, you know, all of us are against Jiang Ming as
foreman.
Q. And did President Su reply?
A. He said, wait until the result of our investigation.
Q. What else did he say during this meeting?
A. I cannot recall.
Q. Did he say anything about the letter that you had
signed?
A. Yes.
Q. What did he say?
A. That he said that do not act like this, have a joint
signature, this kind of—he said, just like the petition for
the Union organization.
The General Counsel argues that it is undisputed that Presi-
dent Su did not want Zhang to circulate petitions or submit
jointly signed petitions like the petition for union organization.
Counsel for the General Counsel submits that such an admonition
from the highest official of the employer in the context of the
events and circumstances underlying the complaint clearly
violates Section 8(a)(1) of the Act citing Midnight Rose Hotel &
Casino, 343 NLRB 1003, 1012 (2004). The Respondent argues
the assertions of Zhang are improbable and are protected by
Section 8(c) of the Act and are defensible under Rossmore
House, 269 NLRB 1083 (1980).
The conversation Zhang described with Su was not challenged
by Su who did not testify. Zhang described the event convinc-
ingly and it does not seem inherently improbable that the Presi-
dent might give such advice to an employee in the circum-
stances then pertaining. I credit Zhang.
The parties dispute the degree of friendship between Presi-
dent Su and driver Zhang, but it is unnecessary to resolve that
dispute. As the General Counsel’s cited case: Midnight Rose
Hotel & Casino, supra, holds, even the advice of a friend if rea-
sonably likely to chill protected concerted activity, violates Sec-
tion 8(a)(1) of the Act. President Su’s admonition to driver Zhang
as set forth above is, in the entire context of events, in fact rea-
sonably likely to chill his Section 7 rights and therefore the
president’s conduct violates Section 8(a)(1) of the Act. Accord-
ingly, I sustain complaint paragraph 18.
l. Complaint paragraphs 19 and 20—The March 7 and 12,
2003 threats and interrogations by Tung Lien Gao
Complaint paragraph 19 alleges that on or about March 12,
2003 Business Manager Tung Lien Gao, at the Corporate Cen-
ter, threatened employees with promotion of a foreman about
whom employees had concertedly complained, in retaliation for
the employees concerted activities. Complaint paragraph 20
alleges that on March 7 and 12, 2003, Gao interrogated em-
ployees about their union and or protected concerted activities.
(1) Evidence
Driver Zhang testified that after the events described above
respecting the employees efforts regarding Foreman Jiang
Ming, Business Manager Tung Lien (Stephen) Gao held a
luncheon for delivery drivers at a local restaurant and asked Ming
Chiang to speak to the drivers as their foreman. The employees
thus realized they had not been successful in their objections to
Ming. The drivers again concertedly prepared a letter to man-
agement which employees signed asking management to “can-
cel the foreman system.” The document was sent to President
Su, Manager Gao, and Director Hsu and bore on its face the nota-
tion that it has been copied to the Union.
A few days after the submission of the second communica-
tion, Zhang was directed to Gao’s office and there had a con-
versation with Gao alone. He recalled that Gao told him that
because the employees had joined together to sign the commu-
nication to management that they do not want Jiang Ming as
driver foreman, Gao was going to promote Jiang Ming to a
director position, i.e., the director of circulation, the supervisory
position above the driver foreman position. Zhang did not be-
lieve Gao was joking. Driver Sun testified he too was brought
to Gao’s office after the second petition had been submitted and
was told various things by Gao including: “[H]e said that if you
don’t like the foreman and he can transfer this foreman to be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD932
come a director. But he said it half jokingly.” Sun did not be-
lieve Gao was joking.
Driver Chao Chan Kan testified that the morning of the day
the second letter was submitted to management, he was sum-
moned to Gao’s office and there had a conversation with him as
well as fellow driver Ke Qing Wu, Director Hsu, and Assistant
Manager Lee. Kan testified Gao asked him if he had again sent
in a petition or letter and that Kan denied it.
Driver Loi Chanh Phan, who also signed the second letter, tes-
tified he was brought into Gao’s office and Gao asked where the
letter had come from. Phan told him that he did not know. Gao
asked if a girl had asked Phan to sign it, perhaps by telephone,
and Phan told him that other employees signed it so he did.
While he did not recall the entire conversation he recalled that
Gao told him “we can solve [the problem] within ourselves.
Why ask the outsider to solve this issue[?]”
Business Manager Gao testified that he did discuss the em-
ployees’ second communication with Director Hsu and with the
drivers about other matters mentioned in the employee letter
and about the drivers’ impressions of Supervisor Ming. He
specifically denied telling Sun or Zhang that he was going to
promote Ming because of employees’ complaints about Ming.
He also denied asking any employee who had written the letter
and further testified that while concerned about the employee
complaints he did not care who had written the letter.
(2) Analysis and conclusions, respecting, complaint
paragraph 19
Respecting the allegation that Gao threatened employees
with Ming’s additional promotion because they opposed his
recent promotion. The General Counsel urges the credibility of
the testimony of the accusing employees and argues that such a
threat is both a significant one given that Ming would have
greater authority over them in a higher position and was clearly
and explicitly directed to employees because of their concerted
activity in opposing the foreman. The Respondent urges the
credibility of Gao’s explicit denial and also notes that the state-
ment under any resolution of credibility was a joke rather than a
threat.
I specifically credit the testimony of Sun and Zhang as set
forth above that Gao told them he intended to promote Ming in
light of their employees’ opposition to him. Gao spoke with
many employees at this time and, based on observing him in
the court room during many days of hearing, I believe that he
could well have made a statement of the type attributed to him in
an attempt at humor and not recall it at the time of the hearing.
Indeed Sun explicitly characterized Gao’s statement as half
joking.
If the statement was made solemnly, there is no doubt it
would be a bald threat and violate Section 8(a)(1) of the Act.
But I find, rather, that Gao made the remark intending it as a
joke. In such a setting it is appropriate to consider whether or
not the remark under all the circumstances, from the employ-
ees’ perspective and irrespective of the speaker’s intent, rea-
sonably could be expected to chill employees’ Section 7
rights. On the facts presented here, I find that the remarks did
have such a reasonably likely effect and that the statements
therefore violate Section 8(a)(1) of the Act.
The employees had opposed Ming’s promotion to driver
foreman by submitting a signed petition. The petition was un-
successful and Ming was promoted. The employees submitted a
second petition seeking the promotion be undone. At that point
Gao, a higher management official with the apparent authority
to in fact promote Ming, states that because of the employees’
efforts Ming will be promoted yet again to a higher position.
Such a statement, made with a smile and a half-joking manner
might well be amusing to the higher level management speaker,
but even if the employees suspected humor was at the root of
the remark, it would still reasonably be taken with doubt and
fear by the subordinate employees. Even if half joking, the
message is clear, management is in charge and things could
quickly get worse if employees concertedly complain. I find
Gao made the statement attributed to him and further find the
statements violated Section 8(a)(1) of the Act. I therefore sus-
tain complaint paragraph 19.
(3) Analysis and conclusions, respecting, complaint
paragraph 20
The General Counsel concedes on brief at 114 that Gao was
privileged to ask employees questions about their concerns and
what they hoped to achieve by their petition, but “overstepped
the bounds of any allowable inquiry when he demanded of
Driver Kan whether he had signed the petition.” The General
Counsel also argues that Gao also improperly questioned Phan
about “where the letter had come from” and improperly sug-
gested: “we can solve [the problem] within ourselves. Why ask
the outsider to solve this issue[?]”
The Respondent emphasizes that Gao denied asking em-
ployees who was responsible for the letters or who wrote them.
Rather he was investigating the basis for the employees’ com-
plaint as a precondition to understanding and dealing with
them. Thus, the Respondent argues, the remarks should be
found not to have been made and, even if they had been made,
they were not threats or improper interrogations and were per-
missible under the Act.
Dealing with the General Counsel’s first argument that Gao
could not properly ask who signed the letter, I find that an em-
ployer who receives a letter bearing the signatures of a number
of employees is entitled to ask the apparent signators if they
had in fact signed the letter. Just as employees may feel their
petition has greater power if it bears evidence of widespread
support, so to the employer is entitled to determine if the pur-
ported support is genuine. Put another way, if an employee puts
his signature on a written communication to his employer, that
act constitutes a waiver of any right to privacy respecting
whether or not the signature is genuine. Similarly, if an em-
ployer receives a letter bearing the signature of an employee, it
is permissible to assert to that employee that the employer had
received a document signed by him. Since this conduct could
not rise to the level of a violation of the Act, it is unnecessary to
determine if it occurred.
I reach the same conclusion regarding the remarks attributed
to Gao regarding solving the problems without outside partici-
pation. I agree with the General Counsel that Gao’s use of the
term outsiders is a proxy reference to the Union. But on the
facts of this case, where the Union was not certified and each
CHINESE DAILY NEWS 933
party was defending their positions on that question, I do not
find it was improper for the Respondent to make it clear that
the Union did not as yet represent employees and that the em-
ployees could deal with the employer but that the employer
would not deal with the union respecting employee terms and condi-
tions of employment. Given the unusual context to the remarks, I do
not find they violated the Act.
Zhang testified that Gao asked him who wrote the letter to
which he replied “everyone.” Gao denied asking the question
progressing both indifference to the answer as well as knowl-
edge of the various signatories from the petition itself. I am
inclined to credit Zhang even though I have not done so re-
specting his termination as discussed below. The testimony of
Zhang noted above is the type or question an employee might
well better recall than a supervisor engaging in interviews with
many employees. Further it is not a matter so obviously damag-
ing to an employer, if disclosed, that a hostile employee would
fabricate the event to advance a personal agenda. Finally, I
simply believed Zhang because during his testimony regarding
the matter his demeanor convinced me that he was trying to
recall the events without a preplanned agenda. Even given the
resolution noted, however, the question is a close one since the
Respondent is correct, as the General Counsel notes, that when
engaged in a course of investigation of employee complaints,
the employer may inquire respecting particular employee views
and opinions. Given that I have found a violation similar to that
alleged here in my discussion of complaint paragraph 16 above,
the remedy for a violation here will not add to the total remedy
directed. This being so, I find it unnecessary to resolve the issue
as to this final element.
Based on all the above, I shall therefore dismiss complaint
paragraph 20.
2. Allegations of violations of Section 8(a)(3) and
(4) of the Act
Section 8(a)(3) of the Act in relevant part states that it shall
be an unfair labor practice to discriminate against employees in
regard to hire or tenure of employment or, any term or condi-
tion of employment to encourage or discourage membership in
any labor organization. Section 8(a)(4) of the Act similarly
prevents an employer from discharging or otherwise discrimi-
nating against an employee because the employee filed charges
or gave testimony under the Act. The two provisions deal with
discrimination for different reasons. Because any conduct
found to be a violation of either or both of these provisions
would also discourage employees’ Section 7 rights, any viola-
tion of Section 8(a)(3) and(4) of the Act is also a derivative
violation of Section 8(a)(1) of the Act.
Because the discrimination allegations herein generally do
not turn on the distinctions between employee union activity
and employee activity involving filing of charges or giving
testimony under the Act—in the instant case the employees
involved in the allegations to be discussed who engaged in
filing charges or giving testimony under the Act were doing so
as part of their union activities, the allegations are presented for
ease of understanding as they appear below.
a. Beat changes
Newspaper reporters generally and reporters at the Respon-
dent in particular are each assigned an individualized beat com-
prising a combination of one or more geographic areas, demo-
graphic groupings, and subject matter categories which in their
totality are the particular reporter’s assigned area.11 Thus, one re-
porter’s assigned beat might cover news arising from a particular city
or geographic area, news involving the immigrant Chinese commu-
nity and news in a sub category or area assigned the reporter so that
in some cases reporters testifying described themselves as covering
several beats at any given time.
Credible testimony was offered that creation and assignment
of reporter beats allows reporters to specialize so that over time
they develop expertise, contacts, and general practical familiar-
ity with the areas of their beats and, further, allows the reporters
in many cases to pursue their own interests and apply their own
areas of expertise. Credible testimony was also adduced for the
proposition that, although beats are beneficial to the newspaper
and to individual reporters, beats need to be changed from time-
to-time in two ways. First, beats need to be adjusted when re-
porter personnel changes occur or workloads need to be rebal-
anced. Second, beats need to be periodically reshaped and or
reassigned all across the reporter complement to insure fresh-
ness of outlook and to prevent ossification, capture or simple
over-closeness of the reporter to the subject matter and the
individuals covered.
At relevant times the Respondent has made limited reas-
signments of reporter beats in response to personnel changes or
staffing requirement changes. The Respondent also undertook a
major reassignment of beats in 1998. Senior Reporter Lynn
Wang testified that the 1998 reassignment process involved man-
agement consultation with reporters during the month before their
implementation and a like period of adjustment as reporters
began their new assignments. The next major reassignment of
beats occurred in June 2001. That process was initiated by City
Editor Jeff Horng who was hired into that position in January
2001.
Lien Wang’s beat was changed in June 2001. Ching Fang
Chang’s beat was changed in June 2002 by City Editor Horng.
These changes are alleged as violations of the Act.
(1) Complaint subparagraphs 6(a) and (b)—The June 2001
changes to Lien Wang’s assignments
Complaint subparagraph 6(a) alleges that on or about June 1,
2001, the Respondent imposed more onerous terms and condi-
tions of employment on employee Lien Wang by changing her
job assignments and complaint subparagraph 6(b) alleges that
additional changes occurred on June 15, 2001.
(a) Evidence
There is no doubt that Wang was an active union supporter.
Indeed she was one of two or three leading employee Union
supporters, at all relevant times, and that, this fact was well

11 The Oxford English Dictionary First Edition, defines “beat” in
part as a round or course habitually traversed by a watchman, sentinel, or
constable on duty and as one’s sphere or department. The later Oxford
American extends the definition to the area involved herein: “the appointed
round of a policeman or newspaper reporter; the area covered by this.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD934
known to the Respondent. The spring of 2001 was a high point
of the NLRB representation case processing events with the
election occurring on March 19, 1991, and the objections hear-
ing proceeding from May 7 to June 29, 2001. As discussed
under my consideration of complaint subparagraphs 8(a), (b),
and (c) above, Wang had been wrongfully interrogated and
threatened in February 2001 in connection with a dispute with
its roots in a disagreement respecting a management decision
not to publish an article by Wang, who at the time covered
labor issues, regarding union activities at an area hospital. As
discussed under my consideration of complaint paragraph 10
above, Wang’s protected, concerted activities had been unlaw-
fully restricted, on or about June 6, 2001. Further, Wang testified
that reporters were concerned with a change in employee
evaluation in the period preceding June 2001 and she was a
leader in organizing a meeting of reporters May 24, 2001, and
the submission of a letter to management complaining of the
proposed changes.
Before June 1, 2001, at the initiation of City Editor Horng, but
with the approval of his supervisor, Editor-in-Chief Chen, it was
decided to generally reassign reporter beats. The decisions were
communicated to employees on or about June 1, 2001, appar-
ently with little predecision consultation, if any, with the re-
porters. Many reporters took the lack of prenotification and
consultation badly and Wang was involved in talking with other
reporters about the matter and communicating reporter disap-
proval to management. Some of those activities are discussed in
the portion of this decision dealing with 8(a)(1) allegations
above.
Wang who speaks both Cantonese and Mandarin dialects of
Chinese had been assigned the Chinatown beat in the 10-year
period preceding 1998 and had asked for and received beat
reassignment at that time, being then reassigned to the City of
Monterey Park and the Taiwanese community. The June 1,
2001 beat reassignment assigned to Wang both the Chinatown
and Monterey Park beats. While there was much testimony and
significant dispute respecting the relative workloads of these
beats, there was little doubt and I find that the two together rep-
resented a very substantial workload. Further, their geographic
separation and requirement of each for daily coverage required
substantial back-and-forth commuting—a difficult matter in the
freeway traffic of Greater Los Angeles—and presented the
likelihood of scheduling conflicts. Wang on June 1, 2001, also
had her beat altered by taking away her traditional coverage of
“labor” issues and substituting as a technical specialty coverage,
science and space exploration. Wang had no technical or scien-
tific experience or education.
When Wang complained to City Editor Horng, she testified
he simply told her she was a capable reporter who could do the
work of many others. As part of the subsequent concerted ac-
tivities of Wang and other reporters complaining of the assign-
ments and suggesting alternatives, described supra, Wang in her
letter went to some length to argue her new beat was onerous and
not well suited to her and to propose alternatives. Management
indicated it would listen to reporters’ views and at least some
reporters’ beats were adjusted on or about June 15 as a result of
the feedback process. Wang at that time received additional
areas of coverage: governmental benefits, welfare and senior
affairs. Thereafter Wang again protested to the chief and city
editors and, wrote a letter which Editor-in-Chief Chen re-
sponded on July 13, 2001. Chen’s letter asserts in part:
City Editor Horng believes that all of the beat distribu-
tions are reasonable and you have both the ability and the
time to take care of the important news on the beats you
cover.
The situation is just as you know it to be. There might
be many different beats set forth on our distribution list, but
that does not mean that there will definitely be a lot of news
to cover every day. These have to be decided by seeing
whether it is a high or low news season, the character of
the beat itself, and whether or not there are many things
that are worth being covered. You in particular have mi-
nutely divided your beats into “five main beats.” But in the
past, since this paper used a lot of translations of outside
wires for the LAPD and the Los Angeles city government,
the news that was covered by reporters was comparatively
low. You divided up some of the beats so finely that it
would appear that you have quite a few beats, but in fact
that is not true. What you are saying does not describe
things accurately.
. . . .
Beat adjustments are definitely not meant to “punish”
you or any coworkers for joining the union. You were
given those beats because you have the strongest coverage
experience in the City Desk, and are one of the highest
paid reporters. City Editor Horng believes that you have
enough ability to display outstanding coverage on your
news.
As discussed supra, the reporters pressed their case for
changes after new beats were announced. City Editor Horng
testified that after meeting with the reporters adjustments were
made on or about July 1. Wang testified that her beat was ad-
justed as well adding: “all the government benefits, welfare, like
SSI, SSA, Medicare, all kinds of government benefit and also the
seniors’ problems. How the seniors related to the issue.”
The beat changes, as adjusted, went into effect on July 1,
2001.
Wang testified that after the June 2001 beat changes were in
place she could barely keep up with her work and that she
worked substantially more hours. She testified that when she
asked City Editor Horng to have others help to cover simultane-
ous events he did not always provide the requested assistance.
(b) Analysis and conclusions
The General Counsel argues that he has established a strong
initial showing of discrimination. Wang was an open and noto-
rious union supporter who was a leader in the ongoing union
campaign and who took a leadership role in the concerted ac-
tivities of the reporters in expressing complaints at the relevant
time. The Respondent, throughout the year 2001 into June and
beyond and through the same management agents who were the
decisionmakers who changed her beat, had threatened and co-
erced Wang in an effort to chill her Section 7 activities.
Against this background and history of animus against Wang
for her protected and union activities, argues the General Coun-
CHINESE DAILY NEWS 935
sel, the beat changes instituted in June 2001 must be judged.
Those made to Wang’s beat as announced on June 1 were pre-
emptory as all were, but were different and more onerous than
the changes to the other reporters beats because of the extraor-
dinary increase in work required of Wang. And, while other
reporters were able to obtain ameliorating changes and adjust-
ments in mid-June, Wang’s careful explanation of the burdens
of her new assignment were ignored and she received yet more
additions to her beat.
The Respondent argues that the beat changes were custom-
ary and that while some reporters were unhappy with changes
that is a natural resistance to change. Counsel for the Respon-
dent notes that Wang had complained and resisted earlier as-
signment changes in 1998 as well as the changes of 2001. Coun-
sel notes the testimony of Respondent’s witnesses as well as the
communications to Wang at the time indicating that the Respon-
dent’s editor-in-chief and city editor did not think her new beat
was as difficult as she characterized it, nor that it was beyond her
since she was an experienced and capable reporter. The Re-
spondent further notes that the reporters work requirement of
writing a set number of words daily did not change and was a
uniform requirement among reporters. Finally the Respondent
denies that the beat changes were discriminatorily motivated.
The Board in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), established a test for approaching discrimination allega-
tions which was restated in Manno Electric, 321 NLRB 278,
280 fn. 12 (1996):
Under [the Wright Line] test, the Board has always first re-
quired the General Counsel to persuade that antiunion senti-
ment was a substantial or motivating factor in the challenged
employer decision. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged
in protected activity. Office of Workers Compensation Pro-
grams v. Greenwich Collieries, [114 S.Ct. 2551, 2557–2558
(1994)].
The parties addressed their argument respecting the beat as-
signment allegations within the Wright Line framework and it is
appropriate to consider the two discrimination allegations de-
scribing Wang’s beat reassignments utilizing that analysis. Com-
plaint paragraph 6(a) will be addressed initially.
There is no doubt and I find that the General Counsel has
met his burden of showing that Wang’s protected activities: her
leading role in reporters’ concerted activities, her union activities
and her participation in Board processes were a motivating role
in the challenged June 1 beat reconfiguration. Wang’s activities
were known to the Respondent and the Respondent’s agents
had shown hostility to Wang for her activities up to that time,
violating the Act as found, supra.
Turning to the employer’s affirmative defense that it would
have taken the same action even had Wang not engaged in pro-
tected activity, it is necessary to break down the actions taken.
First there is no true dispute12 and I find that the Respondent
would have readjusted reporter beats when it did. The testi-
mony established that beats are periodically changed both in the
newspaper industry and by the Respondent. It follows therefore
that the Respondent would have adjusted Wang’s beat along
with the other reporters as announced on June 1, 2001. The issue
then is the question of whether the particular changes in
Wang’s beat would have been made absent her protected activi-
ties.
The Respondent’s evidence is that its decisionmakers, i.e.,
the editor-in-chief and the city editor, took the decision at issue
because they thought it appropriate, did not think it was a signifi-
cant burden on Wang and, in all events, did not modify her beat
to punish her. More specifically the Respondent’s testimony is
that the Respondent’s standard was to rotate major beats to
keep news coverage fresh and it was appropriate then to give
Wang new areas to cover.
Substantial testimony from both the Respondent’s and the
General Counsel’s witnesses was offered advancing conflicting
assertions about the degree of difficulty the new assignments
presented to Wang. To some extent the testimony revisited the
exchange that had occurred at the time between Wang and the
editor-in-chief and city editor. The argument has two aspects.
The first is the evaluation of how much work the new beats in
their totality involved compared to earlier work assignments.
Wang testified they totaled a burdensome load which required
an excessive number of hours of work. The Respondent’s
agents’ view was that Wang was a very experienced, highly
paid, able reporter who, while she complained about beat reas-
signments as a matter of course, and would be able to do the
work which was simply not as burdensome as she claimed. And
the Respondent argues that in effect second guessing the Re-
spondent’s evaluation and assignment of new coverage is im-
permissible: “The concept of restraining a newspaper em-
ployer’s right to change beats and coverage as new warrants
infringes on entrepreneurial and constitutional free speech
rights.” (R. Br. at 7.)
The second and important aspect of the evaluation is the Re-
spondent’s argument that the assignment of beats is not the
assignment of a particular quantum of work that increases pro-
portionately to the news potential. Rather argues the Respon-
dent, the work obligation of the reporter is to produce new arti-
cles of a fixed number of words per day—an obligation born by
all reporters. While a reporter’s beats may vary over time, the
actual work load, i.e., the required word submission, does not.
The Respondent also notes that the submission of extra words
generates credit and that supervision assists the reporter by
enlisting the support of other reporters to cover simultaneous
events. Wang testified that relief might be requested, but in the
event was not always provided.
The record is substantial and the testimony conflicting on the
degree of reasonableness of the beat reassignment given Wang.
The matter was not quantifiable at the time of assignment nor
thereafter. Although the Respondent bears the burden under the

12 The General Counsel did not allege that the general reporter-wide
beat reassignments or the timing of the general reporter beat reassign-
ments violated the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD936
Wright Line analysis of establishing that it would have taken
the action it did absent the protected activity, the heavily sub-
jective nature of the question of the burden involved tends to
favor the Respondent’s witnesses. For in this case, it is neces-
sary to establish that the beat assignment was viewed as a pun-
ishment of Wang by the assigning agents of the Respondent.
Based on the record as a whole, and in particular the testi-
mony of the Respondent’s agents regarding the issue of the
difficulty of the assignment made as it impacted on Wang and
their basis for making the beat reassignment, 1 find the Re-
spondent has met its affirmative defense that it would have
taken the action it did in all events. I realize I have discredited
the denials of these individuals, supra, regarding what was said
at certain meetings and in certain conversations. I had that his-
tory in mind when considering the allegation involved herein. I
am convinced however that Horng and Chen, in testifying as to
their application of their editorial discretion in assigning beats
to the other reporters and Wang, were honest and forthright and
did not in fact do other than adjust the reporter beats as an-
nounced on June 1 based on their newspaper experience and
judgment. It follows therefore that the General Counsel has not
met her burden with respect to complaint subparagraph 6(a) and
it shall be dismissed.
The same analysis must be undertaken respecting the second
adjustment in Wang’s beat at the end of June. The pre-June 1
facts considered above remain relevant. Subsequent events are
also relevant. Wang’s protected concerted activity in acting as a
reporter spokesperson continued between the announcement of
the beat reassignment on June 1 and the second adjustment a
few weeks later as did her participation in the representation
hearing on objections. Indeed as discussed in earlier sections of
this decision, the Respondent and Wang had heated exchanges
in this period.
For the same reasons augmented by the additional evidence
noted, I reach the same conclusion regarding the General Coun-
sel’s initial case as I have above respecting the initial June 1
announced beat changes: the General Counsel has met his bur-
den of showing that Wang’s protected activities: her leading
role in the reporters concerted activities, her union activities
and her participation in Board processes were a motivating role
in the challenged June 1 beat reconfiguration.
I have found above that the Respondent established that the
June 1 announced beat changes would have been implemented
even absent Wang’s protected activity. I made that finding in
part because I could not find—even given the burden the Re-
spondent bears at this stage of a Wright Line analysis—that
Wang was punished by the changes made as opposed to as-
signed the adjusted beat for benign reasons. I do not come to
the same conclusion respecting the additional assignments put
on Wang in the second beat adjustment in later June. As set
forth below the Respondent’s prevailing justification for the
initial beat change does not credibly apply to the second.
Wang led the reporter protest of the beat changes in June
and, as set forth above, the Respondent violated the Act and
otherwise demonstrated great animus to her for her actions.
After these protests, a focus of which was Wang’s argument that
her new beats were too much for her and the other reporters’
complaints, the Respondent provided beat adjustments to other
reporters but not only denied Wang relief but added to her total
beat by assigning her additional beats. I found the Respondent’s
arguments sufficient as to the June 1 announced changes. Beats
as discussed above, are not fixed quantitatively measurable
production obligations.
The lack of quantification arguments found persuasive above
as to the initial changes simply do not explain the additional
beats that were added to Wang’s workload later in June. The
Respondent did not credibly defend nor satisfactorily explain
its motivations for simply increasing Wang’s beats in response
to her complaints that the earlier reassignment was simply too
much for her. The fact of these unexplained increases following
on the concerted efforts Wang undertook in June supports the
Government’s argument of a heightened hostility directed to
Wang based on her concerted efforts with other reporters’ ef-
forts to change her and other reporters’ beat reassignments.
Meeting an employees complaints that the work is too much by
assigning additional work is a course of conduct that requires
more explanation that the Respondent has provided on this
record.
As to these latter beat changes, therefore, I find the Respon-
dent’s defense fails. I find those beat additions would not have
been made had Wang not acted concertedly with other reporters
and continued to press the Union’s cause in Board proceedings
and in meetings with the Respondent wherein she referred to
herself as the union steward. I find therefore that the additional
changes/increases to Wang’s beat made in the latter part of
June violated Section 8(a)(1), (3), and (4) of the Act. The Gen-
eral Counsel’s complaint subparagraph 6(b) is sustained.
(2) Complaint subparagraph 7(f)—The June 30, 2002
changes to Ching Fang Chang’s job assignments
Complaint subparagraph 7(f) alleges that on or about June
30, 2002, the Respondent imposed more onerous terms and con-
ditions of employment on employee Ching Fang Chang, by
changing her job assignments. The conduct of the Respondent
is further alleged to discriminate against employees because of
their union activities and in so doing to violate Section 8(a)(3)
and (1) of the Act
Ching Fang Chang, a former employee of the Respondent,
was a union supporter and testified on the Union’s behalf at the
hearing on objections when it ended in June 2001. During her
years as a reporter from March 1997 to September 30, 2002,
Chang had as part of her beat: Chinese Folk Music and Opera,
Opera and Theater. She characterized herself as the primary
reporter covering cultural matters, performing arts, music, etc.
She would attend performances, sometimes on her own time,
and review them without critiquing the performances.
Chang testified that she had written an article or review of a
Chinese Opera performance in 2002, in addition to her normal
daily quota of article characters. When she approached City
Editor Horng about obtaining credit for the extra words in ac-
cordance with normal practice, Horng denied her request. He
told her the article was not deserving of credit, should not have
been written at all and, despite her protests that the subject matter
was part of her beat, told her that such articles should not be
written in future.
CHINESE DAILY NEWS 937
Chang testified that in June 2002, following a regular eve-
ning reporters’ meeting she was asked to remain and met with
Editor-in-Chief Chen and Horng. Chen, in her memory, in an
agitated and loud manner told her that an article she had written
the previous day was unnecessarily long and covered an insig-
nificant event—a concert—in “too big” a manner. Chang de-
scribed what happened next:
I say, “Chief Editor, can you please lower down your
volume a little bit,” and he got very angry by my remark.
Actually, he was quite hysterical. He say, “Who do you
think you are? You don’t have any right to tell me to lower
down my volume. I always talk like this, and I have the
right to speak at any volume I want.” And then I replied, I
say, “No, you don’t always talk like this.” And then he say,
“I told you, you don’t—you are not only—not only do you
have a bad job performance, you also have a very bad atti-
tude. I’m telling you to improve your job performance,
and you are telling me to lower down my volume, and you
don’t have the right to tell me this.”
Then the conversation went on and it was all critical
from him. At one point, I told him that—I say, “Chief Edi-
tor, I wish you would could have rational and respectful
communication.” And then he say, “You think this is a
communication? I tell you this is not. This is a warning.
Did you hear me? This is a warning. And you just wait to
receive another warning later.” And because only me was
present there and I didn’t have other coworkers with me,
so I learned from Lynne Wang. I took out my notebook
and started taking no te s . . . . He say, “You think that
you can use this against me?” I didn’t respond. I kept on
writing.
City Editor Horng readily admitted criticizing Fang’s articles
on art and leisure and testified: “She liked to write what she
liked to write. She loved the art and culture. Therefore, her
report, it is kind of, over emphasized, in this regard.” Nonetheless
he recalled her as a good reporter who wrote well. He testified
that when Fang told him she was going to resign, he attempted
to dissuade her telling her she was doing a fine job. He testified
that he removed art and culture from her beat, but did not recall
the date he did so. He also recalled he had a meeting with her
and Editor-in-Chief Chen in which their perceptions of her
writing shortfalls were discussed. At the time of these events he
testified he did not know she was a union supporter.
Editor-in-Chief Chen testified that he had long felt that Fang’s
articles were overlong and had spoken to Fang about it, dis-
cussed it with Horng and asked him to speak to her about the
problem. He recalled the meeting between himself, Horng, and
Fang:
I said to Ms. Ching Fang Chang that your article usually it
too long, unnecessarily long. It just a small, minor activity in
the community, usually some kind of recreation, you know,
activities such as a concert.
I know that during the off day, especially Saturday and
Sunday she like to see some, you know, performance or—
or listen to the music, musical concert, and then come
Monday she wrote a long article and she miss a lot of im-
portant things.
For example, the mayor of Diamond Bar, Vincent
Chang’s inauguration ceremony, such important news, she
did not report it; not even one word, not even a picture.
And I mention Sing Tao Newspaper had treated this
news as headline. This has been a damage to our newspa-
per reputation. And such as this important news missed
many time.
Therefore, I told her that, you know, important news
you have to differentiate which one and the tone I speak is
just like I am giving the testimony right now. But her atti-
tude was so bad, can you lower down your voice. I told
her, I am telling you right now I did not raise my voice.
And before this meeting, I already gave her a letter ask
her to improve. I told her, you know, you have such a bad
attitude right now. And she said, I don’t care, you know, I
am not afraid of anything. That is what she said.
Chen also denied knowledge of Fang’s union sympathies or
support at relevant times. Special Assignment Editor Andrew
Sun, Fang’s former supervisor, essentially corroborated the
views of Horng and Chen regarding Fang’s over focus on art
and culture to the detriment of harder news.
The General Counsel argues that Chen at the meeting of
Fang with Chen and Horng during which they removed Fang’s
beat coverage of art and cultural affairs revealed Chen’s motive
was Fang’s protected activities when he made the reference to
her writing down what he said in a manner parallel to state-
ments made to Wang as discussed, above. Counsel for the Gen-
eral Counsel also urges that the substantial delay between
Fang’s testimony before the Board in June 2001 and her union
activities and the discrimination against her should not be fatal
in the context of events here and counsel attacks the claims of
Chen and Horng that they did not know of Fang’s protected
conduct at the time her beat was circumscribed.
The Respondent characterizes Fang’s habit of overwriting
cultural events as long known and long criticized by her super-
visors and the decision to curtail her beat to force her to write
as the management of the newspaper thought proper was un-
complicated and totally nondiscriminatory. Counsel for the
Respondent argues the General Counsel has not established a
prima face case under Wright Line and that in all events, given
that Fang resigned some years ago, the allegation would be
regarded as de minimus.
I agree with the Respondent that the General Counsel has not
met his burden of establishing the initial Wright Line finding
that Fang’s activities were a substantial or motivating factor in
the challenged removal of art and culture from Fang’s beat. I
found credible the testimony of Sun, Chen, and Horng that they
regarded Fang’s attention to those elements of her beat as ex-
cessive and that the removal of that element of her was based
on those subjective perceptions and designed to eliminate the
problem. The General Counsel places a great deal of reliance
on Chen’s testiness in the meeting described above. To counsel
for the General Counsel, the pique of Chen was in response to
Fang’s protected activities, I rather saw the reaction as likely
stemming from the, to Chen at least, insubordinate conduct of a
reporter who would presume to instruct him on his volume, cadences
and demeanor while he was counseling her in her work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD938
I find therefore that the General Counsel has not met his bur-
den of proof with respect to complaint subparagraph 7(f) and it
shall be dismissed.
b. Complaint subparagraph 6(c)—The November 12, 2001
sick leave policy implementation allegation
Complaint paragraph 6(c) alleges that on or about November
12, 2001, the Respondent implemented a new sick leave policy
for all employees, including employee Lien Wang. The com-
plaint further alleges this conduct occurred because of employ-
ees’ union and concerted activities, to discourage employees
from engaging in such activities and because the employee
testified in Board matters and/or attended a Board representa-
tion hearing, thus constituting a violation of Section 8(a)(3) and
(4) of the Act.
November 6, 2001, election day, was a traditional busy time
for reporters covering various election-related news. Reporter
Lien Wang had volunteered for and been assigned the election
of an official in the city of Monterey Park, a matter of interest to
the Southern California Chinese community and the Respon-
dent. Feeling ill on that day, Wang tried unsuccessfully to reach
her supervisors by telephone in midday and, failing that, left a
message indicating she would not be able to work any longer
that day. Management was unhappy with Wang’s failure to
actually make personal contact with, i.e., actually speak with,
an authorized agent of Respondent to report her unavailability
and insure that the Respondent’s agents know of the unavail-
ability as soon as possible thereby allowing them to make the
earliest possible substitute arrangements for coverage.
The Respondent thereafter made it clear to all reporters that
the simple leaving of a phone message or facsimile transmis-
sion announcing a reporter’s unscheduled absence or inability to
continue work was not satisfactory and that actual contact with a
designated agent of the Respondent was necessary. Wang testi-
fied Editor-in-Chief Chen made it clear at the November 12,
2001 reporters’ meeting that reporters were to make actual
contact rather than leave a message or facsimile transmitted
announcement of any unscheduled absence. At that meeting,
Wang and Chen argued about the requirement and the Novem-
ber 6 events, Wang was required to write a report about its cir-
cumstances and was in effect issued a warning for it in conjunc-
tion with other absence issues. These latter actions were not
alleged as violations of the Act in the complaint.
The General Counsel argues that the “personal contact” re-
quirement applied to Wang and all employees thereafter was
new, inconsistent with past practice, and was implemented due
to the protected activities of the employees. Counsel for the
General Counsel notes there is no contention that a written rule
on the issue had ever existed. She further notes that only Wang
was required to write a report respecting her conduct in the
situation described and that the rule was discussed at the No-
vember 12 reporters’ meeting at which union activities and
unfair labor practice charges were discussed. The Respondent
argues that the personal contact requirement was established
past practice, had solid business reasons behind it, and neither it
nor Wang’s criticism for not following it was based on Wang or
any other employees protected activities.
The General Counsel and the Respondent adduced various
witnesses on the issue of the personal contact requirement. The
Respondent’s witnesses testified that the policy, if never writ-
ten, was clear and that reporters knew that it was necessary to
report in person on important issues rather than leave a voice-
mail. The General Counsel’s witnesses testified that they felt an
obligation to contact the Respondent when a problem of unex-
pected unavailability arose but that it was not necessary to do
so in person, but could be done and had been done by voice
mail or facsimile message.
Based on the record as a whole I reach the following conclu-
sions. First, the General Counsel may not claim that the warning
issued to Wang as described above was a violation of the Act
because it was not alleged in the complaint to be improper.
Second, since there is no 8(a)(5) unilateral change allegation
contending there was a status quo obligation on the Respon-
dent, the General Counsel must establish more than just a
change in policy to prove her case, but must also establish that
any change was instituted for improper reasons. It is not un-
usual for unwritten rules, which are more akin to good practice
standards, to be differently understood by and followed in dif-
ferent ways by different employees. In the instant case the ac-
tual contact requirement seems never to have been a simple, in
all cases, black letter universal requirement. It is clear that re-
porters had not consistently made personal contact rather than
leave messages by voice mail or facsimile messages to report
unexpected unavailability. I credit the General Counsel’s wit-
nesses’ testimony in these regards. I also credit the Respon-
dent’s witnesses that they honestly felt the rule required actual
contact, for important situations at least, and that Chen did not
believe he was changing the rules in stating the requirement to
the reporters or in upbraiding Wang.
I find therefore that, if the rule was changed, it was changed
by a more detailed specification of circumstances. If it was
changed in response to Wang’s actions, I further find it was not
changed in retaliation for her protected conduct or the protected
conduct of other employees. In effect I find that the witnesses
were each testifying truthfully about what they believed the rule
was and had been, but that among the staff there had been dif-
ferences of interpretation and application to that time. Putting
these findings in the framework of Wright Line, I find that the
General Counsel has not established that the Respondent’s
hostility to the employees protected concerted, union or Board
related activities was a substantial or motivating factor in the
challenged employer’s decision and that, if the General Counsel
had established that proposition the Respondent would have
maintained the rule as it had even if the employees had not en-
gaged in protected activity. Thus I find the Respondent’s ac-
tions did not violate the Act. Accordingly, I shall dismiss com-
plaint subparagraph 6(c).
c. Complaint subparagraph 7(a)—Written Warning to
employee Yun-Min Pao
The complaint alleges at paragraph 7(a) that the Respondent
issued a written warning to Yun-Min Pao on or about Decem-
ber 30, 2001. The complaint further alleges this conduct oc-
curred because of the employee’s union and concerted activities
and to discourage employees from engaging in such activities.
CHINESE DAILY NEWS 939
Yun-Min Pao is a long-term employee and editor. On or about
December 31, 2001, Editor-in-Chief Chen issued a warning
letter13 dated December 29, 2001, to Pao. It was captioned:
“Notification Regarding Improvement of Editorial Work” and
stated in part:
On many occasions in the past few years, you have been
pointed out by me that you made mistakes in your editorial
work, and that you have been notified both verbally and in
writing to make improvement in that respect. Unfortunately,
as of the present time in 2001, you still repeatedly fail to fol-
low the proper editorial procedures that require you to thor-
oughly check and examine the layout that you have edited, or
that on many occasions, not match the article, wrong words
were used characters were wrongly typeset. There incidents of
mistake have be recorded and are verifiable. Despite the fact
that most of the mistakes were timely detected and corrected
by other proofing staff or by the supervisor of the final press-
proof, these mistakes nonetheless are the result of your vio-
lation of the regulations that require editorial staff to conduct
thorough examination prior to the finalization of the press-
proof and to devote complete concentration in their work in
order to avoid mistakes. Additionally, your mistakes would
exert undue burden on your down-stream workers and do
not meet the quality control requirements.
[Pages of specified errors omitted.]
Due to the fact that the occurrence of these problems for
you is significantly higher than the other editorial staff and
the fact that mistakes have occurred repeatedly, it has
reached a point where reassessment of your “job compe-
tence” is warranted. Immediately upon your receipt of this
notification, you are to make improvement of the quality
of the edited page and translation draft assigned to you
each day, to implement stringent practice to safe guard
against mistakes, to upgrade quality of the headlines, and
to follow the required editorial procedures, including com-
puter typesetting of the same-day draft by editor.
We do hope to maintain the high quality of our page
layout and news. However, your recent performance has
already imposed an undue burden on the editorial team as
a whole and has subjected this newspaper agency to the
risks of damaging our newspaper’s reputation and getting
protests from our readers due to page layout mistakes.
Please provide your cooperation by making the necessary
improvement. Should you have any question or problems
that necessitate communication, please don’t hesitate to
contact the editor-in-chief Chu Zi-Cheng or me for discus-
sion. Please don’t forfeit your own chances.
Reporter Pao took umbrage at the memo and the two indi-
viduals exchanged heated memoranda each contesting the others
perception of Pao’s editorial work and other editors’ work and
Chen taking the position that not to admit one’s errors was
incorrect.

13 The parties submitted two interpretations, one from the Union and
one from the General Counsel. I find the differences of no conse-
quences to the allegations. The Government translation is quoted.
Pao testified that he had not previously received a written
warning nor been spoken to about his purported errors prior to
2001. He disagreed with the editor-in-chief’s criticisms. Editor-
in-Chief Chen repeated his criticisms of Pao’s editorial work
and defended his evaluation of Pao and his warning letter.
The General Counsel views the criticism and warning as jus-
tified by Pao’s work failings as simple pretext and asserts the
true motivation for the actions against Pao was his protected
concerted, union and Board-related activities. The Respondent
argues Chen held strong views about editorial performance and
was entitled to hold those views and to criticize and warn Pao
when he did not meet the performance requirements.
In resolving the dispute respecting complaint subparagraph
7(a) concerning the warning letter, the credibility of Chen on the
issue of editor performance generally and Pao’s performance in
particular is paramount. This is so because there is an element
of subjectivity inherent in such performance evaluation and
motivation is yet more a subjective rather than objective matter.
While I have elsewhere in this decision found Chen did not
recall correctly things he said to employees, I find the instant
situation quite different. Statements made to employees in the
various meetings discussed supra were not at the center of
Chen’s concerns. It is quite clear, and I credit Chen in these
regards, that Chen had strong views about editorial quality and
performance. For Chen to have been wrong about his conclu-
sions as to Pao as he testified, he could not just have been for-
getful or have misremembered. His views and memory were so
strong that to discredit him essentially requires that I find he
was lying and his entire course of conduct was a fiction and
pretext to get to Pao because of Pao’s protected conduct. Based
on Chen’s demeanor, which was passionate and convincing in
expressing his views on this subject, I am simply not able to
make such findings.
I find Chen took the actions he did against Pao for the rea-
sons he gave. This does not mean of course that Pao was in error
in the disputed instances. That, however, is not the issue when an
employer is disciplining an employee. I find Chen disciplined
Pao not because of his protected conduct but rather because of
Chen’s views of Pao’s conduct as an editor. Given this finding,
in Wright Line parlance, even if the General Counsel had estab-
lished his prima facia case, I would find that the Respondent
would have taken the action at issue against Pao even had he
not engaged in protected conduct. Complaint subparagraph 7(a)
is therefore without merit and shall be dismissed.
d. Annual bonus reductions
The Respondent at all times material has provided its em-
ployees with individualized annual bonuses which are paid in
January, concurrent with the Chinese New Year, for the em-
ployees’ performance during the preceding year. Thus, for ex-
ample in January 2003 employees received their bonuses
earned in the year 2002. The complaint alleges that various
employees had their bonuses decreased in January of given
years. The meaning of the complaint language used is evident
given the practices of the Respondent respecting bonuses and
the position of the parties during the litigation. The complaint
alleges that the Respondent, for each named employee, lowered
the amount paid in January of each alleged year as the annual
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD940
bonus for the preceding year from the amount that would have
been awarded, but for the protected activities of the employee.
The process for determining individual employee bonuses is
not generally known by employees and employees are not pro-
vided either with written evaluations or of explanations regard-
ing their bonuses. Substantial testimony respecting the general
process and the application of that process to the named employ-
ees in the named years are under challenge in the complaint.
The Respondent calculated the annual bonus of its employ-
ees in various ways depending on the years involved, as well as
the department and employee job position involved. At relevant
times several aspects of the process were generally common.
First, the size of all bonuses starts with the Respondent’s per-
formance in a given year. Individual bonuses within a given
year are based on annual evaluations which cover the period
December of the preceding year through November of the
evaluation year. Employee performance is divided into elements:
60 percent is based on work performance, 20 percent on dili-
gence, and 20 percent based on working spirit. A two-digit
numerical score for these separate elements is calculated and
from those three scores using weighted averaging, a total per-
formance score results. A grading scale is then applied to the
employee’s numerical score by including the employee in the
appropriate category as follows:
Category Numeric Score Range Grade or Category
Exceptional 95 and above 1
Superior 90–94 2
Excellent 85–9 3
Above Avg. 80–84 4
Satisfactory 70–9 5
Unsatisfactory 60–69 6
Poor below 60 7
Employees in each ranking category earn the percentage as-
signed that year to that category by the Respondent after it has
evaluated its general institutional performance. The higher the
ranking category, the higher the percentage each employee in the
category receives. Thus all employees in the average category in
a given year would receive the same percentage number and
employees in the higher categories such as “superior” would
receive higher percentage numbers. The percentage number
assigned each employee is multiplied by the employees
monthly compensation for the year in review and the resulting
amount is the employees’ annual bonus for that performance
review year, paid to the employee in the January of the follow-
ing calendar year.
Perhaps more simply stated: a given employee’s annual bo-
nus is established by determining their performance score and
the performance category in which that performance score is
classified. Each classification has an associated percentage
assigned by the Respondent each performance year based on
overall institutional performance. The percentage each em-
ployee is assigned is then multiplied by that employee’s
monthly remuneration and the resulting sum is the bonus
awarded.
Each employee’s bonus is thus based on: (1) the Respon-
dent’s overall performance, (2) the employees’ performance
category, and (3) the employees’ monthly salary during the
period. The General Counsel has not challenged the Respon-
dent’s annual evaluation of its own performance and associated
general bonus amount determinations and that element of all
employees’ bonuses is therefore regarded as a benign given.
The General Counsel is not challenging the uniformly-applied
performance categories which translate a given employee an-
nual score into a percentage multiplicand. Finally the General
Counsel in this preceding is not challenging the annual salary
or general nonbonus compensation system of the Respondent as
applied to any employee.
Thus, while individual bonuses depend on the many vari-
ables noted, the General Counsel’s does not argue that any
factor other than a single one was improperly applied. The sin-
gle factor the Government challenges respecting each employee
named in the complaint in this element of the case is the em-
ployees’ performance number in given years, i.e., that number
assigning the named employee in the named years to one of the
performance categories described above. The General Coun-
sel’s sole theory of a violation in the bonus allegations is that
the employees’ annual performance numbers were lowered or
reduced because of the employees’ protected activities, placing
the employees in lower performance categories which resulted
in lower percentage multipliers applied to their monthly com-
pensation and consequentially resulting in lower total annual
bonuses.
The employees named in the complaint as suffering from re-
duced bonuses are set forth with the years under challenge.
Each is then discussed thereafter.
Lien Wang 2001 bonus paid January 2002
2002 bonus paid January 2003,
2003 bonus paid January 2004
Yun-Min Pao 2001 bonus paid January 2002
2002 bonus paid January 2003,
2003 bonus paid January 2004
Hui Jung Lee 2001 bonus paid January 2002
(1) Employee Lien Wang—Complaint subparagraphs 6(d),
(e), and (f)
Complaint paragraph 6(d) alleges: “About January 2002, the
Respondent decreased the amount of Lien Wang’s annual bo-
nus.” Complaint paragraphs 6(e) and (f) make the same allega-
tion respecting Wang’s next two annual bonuses. The com-
plaint further alleges this conduct occurred because of Wang’s
Union and concerted activities and to discourage employees
from engaging in such activities and because Wang testified in
Board matters and/or attended a Board representation hearing.
Lien Wang was at all times evaluated as a reporter. Her per-
formance scores over a relevant period were:
CHINESE DAILY NEWS 941
Reporter Lien Wang
Year Total
Score
Cate-
gory
Rank
Per-
forman
ce 60%
Dili-
gence
20%
Work-
ing
Spirit
20%
Supervi-
sor
Adjust-
ment
1997 89 4 54.6 17.6 17.8 -1
1998 85.4 3 51.6 17.8 17 -1
1999 86.6 3 52.8 16.8 17 0-
2000 88.8 3 52.8 17.6 18.4 0-
2001 74 5 48.6 15 16 0-
2002 74 5 46.8 15.5 16 0-
2003 73.4 5 46.8 14 16 0-
The Respondent’s pre-City Editor Horng evaluation system
for reporters included consideration of weekly self-nominated
articles through a process of review and voting by the nominat-
ing reporter, the editor-in-chief, the city editor, the then two
deputy city editors and the translator—seven voters. Affirma-
tive votes by three of the seven awarded points to a particular
article and points awarded during the year were totaled to com-
prise the performance based 60-percent portion of the annual
evaluation score.
After Jeff Horng became city editor before the 2001 year
evaluations were done, reporters no longer nominated articles,
but Horng or a deputy city editor did so. Cash bonuses were
awarded of a range up to $40 as voted by the city editor and the
two deputy editors with Chief Editor Chen the final authority.
These awards were tallied and used as the basis of the perform-
ance points in evaluations thereafter.
Points for the diligence and working spirit portion of the
evaluations were assigned by the deputy city editors and the
city editor and were averaged. The editor-in-chief reviewed
evaluations and had the right and practice of adjusting em-
ployee totals up or down (See “Supervisor adjustment” column
in above table.). This was done in Wang’s case in her 1997 and
1998 evaluations when her total was reduced one point in each evalua-
tion, but no changes were made in later years by higher supervi-
sion.
A quick review of Wang’s evaluation numbers summarized
in the table above makes it clear that her ratings suffered a drop
from category 3 down to category 5 for the period 1998–2000
to the period 2001–2003. Each category annually has a percent-
age assigned to it and the percentages diminish as the category
number increases. Thus, in the years 2000–2003 her rating’s
drop to category 5 in each of those years significantly reduced
the percentage of her salary which would be used to calculate
her bonus the following January. Her annual bonuses dropped
significantly in consequence. Other factors such as her annual
salary amount and the percentage the Respondent assigned to
each performance category were also factors in determining
bonuses, but they are not under attack by the General Counsel
and are not analyzed herein.
The Respondent, primarily through the testimony of City Edi-
tor Horng and Editor-in-Chief Chen, suggested that Wang’s
scores dropped for two reasons. First, she missed a great deal of
time in the latter years here under review and submitted many
fewer articles. The consequence of fewer days of work and
fewer submitted articles was lower performance numbers based
on her articles. Second, Horng argued, Wang in this period
exhibited less than an average amount of diligence and working
spirit. Thus, he testified he received complaints respecting her
attitude and objectivity from outsiders and concluded Wang
selected articles to write based on her interests rather than the
importance of the news involved. Chen testified that his opin-
ion of Wang’s work has been constant for some time and long
preceded the advent of union activities at the facility. He also
testified he regularly received complaints from deputy city
editors regarding Wang, that Wang was very difficult to reach
and that she did not make sufficient efforts to make herself
available to be contacted. Wang missed 2 months of work in
2001 and took 19 days of vacation. The parties stipulated that
Wang missed 62 work days in 2002. She missed over 40 days in
2003. The Respondent informed Wang when she complained
about reduced bonuses that her scores were lowered as a result
of missed work.
The General Counsel argues that the evidence is clear that
the Respondent had knowledge of Wang’s protected concerted,
union and Board-related activities and as established in the
litigation of the allegations of violations of Section 8(a)(1) of
the Act, demonstrated a hostility to those activities and to
Wang’s activities in particular. Counsel for the General Coun-
sel notes the significant and precipitous reduction in the quality
of Wang’s evaluations following the onset of union organiza-
tional activities and the consequential reduction in her annual
bonuses.
The Respondent argues that the record is clear that Wang’s
raw scores, and thus her bonuses, fell largely because of her
decline in attendance and output and, in lesser part because of
her attitude toward her work. Even if the General Counsel has
established his initial Wright Line case the Respondent “would
have taken the same action regardless of protected conduct,
consistent with Wright Line, the allegations should be dis-
missed.” (R. Br. at 16.)
I find in agreement with the Respondent, based upon the
documentation provided respecting the evaluation process, that
the Respondent’s annual evaluations of Wang’s performance
figures—which produced the reduced bonuses under challenge
—turned on objective circumstances involving fewer articles and
her absences from work and did not sound in her protected ac-
tivities. To reach a contrary conclusion as the General Counsel
argues would involve a rejection of the calculations offered by
the Respondent. To do this would require a finding that the
Respondent’s evaluators were in essence fabricating the evalu-
ating process of Wang and denigrating her work to sustain an
evaluation process put in place to punish her for her pro-
tected/union Board activities. I am unable to go so far on this
record. Thus I find, even assuming the General Counsel has
established a Wright Line prima facia case, the Respondent
would have reached the evaluation conclusions it did, and thus
the consequential bonus reductions resulting from those annual
evaluation ratings, even if Wang had not engaged in protected
concerted, union or Board-related activities. Thus I find and
conclude that Wang did not suffer from improperly reduced
bonuses as alleged. Accordingly, I shall dismiss the General
Counsel’s subcomplaint paragraphs 6(d), (e), and (f).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD942
(2) Employee Yun-Min Pao—Complaint subbparagraphs
6(g), 7(b), and (c)
Complaint paragraph 7(b) alleges: “About January 2002, the
Respondent decreased the amount of Pao’s [2001] annual bo-
nus.” Complaint paragraph 7(c) makes the same allegation
respecting Pao’s 2002 annual bonus. The complaint further
alleges this conduct occurred because of the employee’s union
and concerted activities and to discourage employees from
engaging in such activities. Complaint paragraph 6(g) alleges:
“About January 2004, the Respondent decreased the amount of
Pao’s [2003] annual bonus.” The complaint further alleges this
conduct occurred because of Pao’s union and concerted activi-
ties and to discourage employees from engaging in such activi-
ties and because Pao testified in Board matters and/or attended
a Board representation hearing.
Employee Yun-Min Pao was a long-time employee and was
at all times evaluated as an editor. The bonus evaluation system
is similar to that for reporters. His performance scores over a
period were as follows:
Editor Yun-Min Pao
Year Total Score Category Rank Supervisor Adjustment14
1997 81 4 -1
1998 78 5 0
1999 79 5 -1
2000 83 4 0
2001 74 5 0 -1
2002 74 5 -2 -4
2003 73.4 5 0 -5.6
There is no doubt that Pao was actively engaged in union or-
ganizational activities or that the Respondent’s agents well
knew it. Pao’s role in the events under challenge in earlier con-
sidered paragraphs of the complaint are discussed above.
Pao’s unhappiness with his reduced annual bonuses turns
reasonably on a diminution in dollar or percentage totals. Since
he had never had the process explained to him nor received a
written explanation, he was unable to determine how the dollar
amount of his bonus turned on the Respondent’s particular
evaluation of him compared with a reduction to all bonuses due
to companywide profit and loss issues.
The General Counsel’s theory, as narrowed in the general
discussion of bonuses above, is that the aspects of the evalua-
tion process unique to Pao were discriminatorily applied be-
cause of his protected conduct. Thus, Pao’s final total score,
which determines placement within the more general bonus calcu-
lation matrix, is at the heart of the matter. And further, since the Gen-
eral Counsel’s argument centers on supervisory reductions of the
initial scores, the allegation of discrimination made by the General
Counsel does not seem to be on the initial ranking of Pao by Director
Chu, but rather the later total score reductions by Deputy Chief Editor
Fang and Chief Editor Chen. And, since Fang did not reduce Pao’s
score in 2001 or 2003 and reduced all editorial scores by a uniform 2
points in 2002, the General Counsel’s case in each of the 3 years at
issue seems to rest on the validity of Chen’s actions.

14 Where two adjustments are noted, the first was undertaken by
Deputy Chief Editor Fang and the second by Editor-in-Chief Chen.
Turning to the 2001 score reduction, Chen reduced Pao’s to-
tal score from 75 to 74. Since all relevant employee evaluation
scores falling anywhere in the seventies place those employees
in the “satisfactory” category, denoted herein generally as cate-
gory 5, and since all employees who are evaluated as satisfac-
tory receive the same percentage salary bonus in any given
year, Chen’s actions did not result in any change to Pao’s bonus
amount. And since the complaint alleges that bonus amounts
were changed, not that annual evaluation performance scores
were reduced, Chen’s conduct may not be held to have violated
the Act as alleged in the complaint. Since there is no other basis
to find that Pao’s 2001 pre-Chen adjusted score was discrimina-
torily Iowered15 sufficient to change the category he was classi-
fied in and thus to reduce his January 2002 bonus, the allega-
tion in subparagraph 7(b) fails for want of proof and shall be
dismissed.
In the 2002 evaluation of Pao, Director Chu gave him a score
of 80, Deputy Editor Fang reduced it by 2 points to 78 and Edi-
tor-in-Chief Chen reduced it a further 4 points to a final score of
74. Put another way, Chu’s ranking of Pao placed him in the
above-average category,16 Deputy Editor Fang reduced Pao’s
score sufficiently to drop him into the “satisfactory” category
(70–79), and Editor-in-Chief Chen dropped Pao’s score further
but did not do so to the extent that Pao’s category changed. In
this perspective, it was Fang not Chen who reduced the bonus
of Pao from the higher percentage of annual salary awarded all
who are classified “above average” to the lower percentage of
annual salary that is awarded to those who are classified as
“satisfactory.”
Deputy Editor Fang in the 2002 evaluations lowered all edi-
tor scores by the identical two points. The General Counsel did
not provide any evidence to suggest that Fang’s uniform reduc-
tion of all editors’ scores, even if it reduced Pao’s classifica-
tion, was discriminatorily motivated. Indeed Fang’s reductions
lowered the bonus classifications of 6 of the 14 editors he
evaluated that year. Chen thereafter lowered the scores of six
editors and raised the score of another. His actions however
changed only one editor’s classification, i.e., changed the
amount of the editor’s annual bonus. That editor was not Pao
whose bonus was unchanged by Chen’s reduction of his score
78 to 74, each score being within the “satisfactory” classifica-
tion.
Putting the pieces together, three supervisors were responsi-
ble for Pao’s ranking in 2001, and therefore his bonus on Janu-
ary 2002: Chu, Fang, and Chen. Again, I do not find sufficient
evidence to suggest Director Chu’s initial score was other than
based on his perceptions of Pao’s merit. Similarly, I find Fang’s
uniform reduction in all editors’ scores by 2 points each, not to
be an act of improper discrimination against Pao even though it

15 As noted, Director Chu’s decisions were not under attack by the
General Counsel. Were the decisions under attack here, given the ab-
sence of sufficient evidence to meet the General Counsel’s burden that
Chu’s decisions were at least informed by, let alone motivated by,
personal animus against Pao or taken at the command of another, I
would find Chu’s rating of Pao free from discrimination
16 The classification “Above Average,” herein referred to as category
4, requires a score of 80–84.
CHINESE DAILY NEWS 943
did reduce his bonus amount by moving him from an 80 score
and an “above average” classification to a 78 score and a “satis-
factory” classification. Finally, Chen’s actions did not change
Pao’s classification and therefore did not change the amount of
his bonus. I find therefore that the General Counsel’s complaint
subparagraph 7(c) is without merit and will be dismissed.
The last of the three Pao bonuses under attack is the January
2004 bonus based on the 2003 evaluation. The 2003 evaluation
is somewhat different in that monthly evaluations were under-
taken and then apparently averaged to produce the annual to-
tals. It is also not clear if Deputy Editor Fang has a role in re-
viewing or at least in modifying the scores of editors. Pao was
given an initial score of 79 by Director Chu and after supervi-
sory review came to have a score of 73.4. Again Chu’s score
was not directly attacked by the General Counsel and there is
no evidence to suggest that score was improperly determined.
Thereafter, while the reduction in score by reviewing supervi-
sion, in this case Chen, was large—4.6 points—it did not lower
Pao’s classification. Since an employee’s classification, not his
score within the classification, determines the percentage of
annual salary to be given an employee each year as a bonus, the
later reviews did not lower the bonus amount based on the 2003
evaluation and received by Pao in January 2004. Again, I find
Chu’s initial score free from discrimination. Since that score
determined the bonus amount that Pao ultimately got and there
was no subsequent change in that classification, there was no
improper reduction of the bonus by the Respondent. I shall
therefore dismiss complaint subparagraph 6(g).
(3) Employee Hui Jung Lee—Complaint subparagraphs
7(d) and (e)
Complaint paragraph 7(d) alleges: “About January 2002, the
Respondent decreased the amount of Hui Jung Lee’s [2001]
annual bonus.” Complaint paragraph 7(e) makes the same alle-
gation respecting Hui Jung Lee’s 2002 annual bonus. The com-
plaint further alleges this conduct occurred because of the em-
ployee’s union and concerted activities and to discourage em-
ployees from engaging in such activities.
Hui Jung Lee, a former employee of the Respondent from
1990 till August 2001, was the spouse of union activist Editor
Pao, an active and public supporter of the Union and was the
subject of improper importunities found violative of the Act,
supra. Lee served as the sole archivist until the position was
eliminated in September 2001, at which time she was trans-
ferred to the sales department as an account executive.
Lee’s annual evaluation scores as the archivist were done by
the editorial department. She received consistent scores of 85 in
the years 1997, 1998, 1999, and 2000. Those scores placed Lee
in the 85–89 “Excellent” category and she received a bonus each
January following the year of her evaluations based on the for-
mula provided each year for that category.
Calendar year 2001 was the year of Lee’s transfer from ar-
chivist in the editorial department to account executive in the
sales department. The record establishes that the Respondent
has procedures for handling the annual evaluations of trans-
ferred employees, but that they were not applied in Lee’s case
in the 2001 evaluation period. Editor-in-Chief Chen in effect
admitted that his department had not followed procedures and
done no evaluation of Lee. He testified that when he was in-
formed that neither editorial nor sales had evaluated Lee and,
when he was notified of that fact by the Respondent’s accounting
department, they suggested and he agreed that it was very fair
that she should be given a “satisfactory” rating even without an
annual evaluation and a bonus would be given to her based on
that status. This was in fact done.
Chen testified that the treatment of Lee, while unusual and
based on an inadvertent failure to follow procedures correctly in
evaluating her, was not done for discriminatory reasons. Ac-
counting, with no knowledge of Lee beyond her identity as an
employee who had not received an evaluation, had suggested a
course—assignment of the satisfactory rating—which seemed
reasonable and which he accepted.
Lee worked the full year of 2003 in the sales department as
an account executive and received an annual evaluation for that
year prepared by the sales department. She received a total
score of 70 for a “satisfactory” classification which is awarded
to all scores in the 70s. Sales Director Yang testified that Lee’s
total was lowered by the fact that she received only 5 out of a
possible 20 points for the diligence portion of the scoring proc-
ess which was used in the Sales Department evaluations to
measure effort on special promotions.
The General Counsel argues that the Respondent’s excuse
for not giving Lee an evaluation in 2001 is disingenuous. Coun-
sel for the General Counsel argues further:
Even if this were so and it was a genuine oversight, there is no
explanation as to why Chief Editor Chen thought it fair to
give her only a satisfactory rating and the lowest possible bo-
nus in the absence of evidence that her performance in either
position was inadequate.” [GC Br. 106.]
The Respondent notes that there is no dispute that the edito-
rial department archivist position was done away with for busi-
ness reasons and that Lee was transferred properly to the sales
department thus showing it had no animosity towards her. The
Respondent also notes the testimony of Chen that in 2001 Chen
had problems with Lee’s performance and had given her a letter
addressing problems she was having keeping up with her work.
The Respondent notes the testimony of Chen that the failure
of the editorial department to evaluate Lee was innocent and
inadvertent and that the accounting department recommenda-
tion to give Lee a bonus without an evaluation was clearly ex-
pedient and not malicious. The Respondent does not directly
address the General Counsel’s argument that Chen should have
asked for a classification of “excellent” for Lee as she had re-
ceived for many years up to that time which would have pro-
duced a larger bonus on January 2002. Chen’s testimony seems
to suggest that he was nonplussed by the accounting depart-
ment’s call which revealed his department’s failure to evaluate
Lee and in such a state quickly acquiesced in their suggestion
of a satisfactory classification in lieu of the missing annual
evaluation.
I have carefully considered the record as a whole on this is-
sue and in particular the testimony of Chen. I find that the Gen-
eral Counsel has not established his initial burden under Wright
Line that the bonus of Lee was reduced in consequence of her
protected activities. Rather I find that Chen’s testimony of an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD944
inadvertent mistake was credible as well as plausible. Were the
Respondent intent on reducing Lee’s bonus because of her pro-
tected activities, the safer course would have been to have
evaluated her. I am simply convinced the omission was not
knowing or malicious. Further, I am not persuaded that Chen’s
failure to suggest a higher classification be assigned to Lee in
his conversation with the accounting department establishes the
Government’s case here. Confronted with his department’s
error, I think it quite plausible that Chen would be pleased to
accept their suggestion and put the matter behind him. I found
his demeanor during this portion of his testimony persuasive. I
shall therefore dismiss complaint subparagraph 7(d).
The sales department evaluation of Lee in 2002 was de-
fended primarily by testimony that Lee did not meet volume
expectations and tended to focus too much on low volume qual-
ity work rather than higher volume revenue producing efforts.
The General Counsel focused on the fact that one sales depart-
ment employee received a 68 or unsatisfactory classification
score in his annual evaluation, but was lifted to a satisfactory
rating. I do not find this argument persuasive as a basis for find-
ing the evaluation of Lee to be duplicitous.
Based on the record as a whole and, in particular the credible
testimony of sales staff Robert Yang and Pauline Liu respecting
Lee’s troubles adjusting to the approach required by the sales
department, I find that the 2002 evaluation of Lee and therefore
her January 2003 bonus were not reduced because of her protected
activities. As with Lee’s evaluation of the prior year, I find the Gen-
eral Counsel has not established his initial burden under Wright Line
that the bonus of Lee was reduced in consequence of her protected
activities. I shall therefore dismiss complaint subparagraph 7(e).
e. The suspension and discharge of Jing-Hua Zhang—
Complaint subparagraphs 7(g) and (h)
The complaint at paragraphs 7(g) and (h) allege that the Re-
spondent suspended employee Jing-Hua Zhang on April 22,
2003, and terminated him on May 5, 2003. The complaint fur-
ther alleges this conduct occurred because of the employee’s
union and concerted activities and to discourage employees
from engaging in such activities.
(1) Evidence
Jing-Hua Zhang began his employment in the Respondent’s
printing department in 1999, but transferred to the circulation
department in 2000 where he worked as a delivery driver until
his termination. The series of events involving the earlier vote
for a driver foreman, the selection of Chiang as the foreman,
and the employees’ concerted efforts dealing with that proposi-
tion as well as the Respondent’s agents’ reaction to the em-
ployees’ efforts has been discussed earlier.
Zhang testified that in late 2002, Chiang began to leave notes
for the other drivers instructing them to undertake tasks such as
checking the bulletin board at the end of the working day be-
fore going home. The driver employees were unhappy at his
assumption of authority and at about the turn of the year, met
and selected Zhang as their spokesman to speak to their super-
visor, Director Hsu, about Chiang. Zhang spoke to Director
Hsu in the parking lot thereafter telling Hsu that the drivers
were unhappy with Chiang’s instructions to them and felt he
was pressuring them. Director Hsu listened but did not respond.
Zhang reported back to the other employees who counseled a
wait and see approach.
When nothing occurred, the employees determined that talk-
ing was insufficient and decided to submit a petition to man-
agement. Zhang testified he and driver Sun drafted the first
petition, Zhang and others signed it and submitted it to man-
agement via the “opinion box.” Zhang then had a conversation
with Business Manager Gao. He went to Gao’s office and told
him that the employees did not want Chiang as their supervisor.
He also met with President Su and told him the drivers were all
against Chiang as foreman. President Su, he recalled, told him
the employees should not submit jointly signed documents like
the petition for union organization.
At relevant times the Respondent employed approximately
12 truck drivers who worked from approximately 2:45 a.m.
until 9:45 a.m. In the early morning as the newly printed papers
became available, the drivers loaded the newspapers into their
trucks and took them to various retail delivery points. The driv-
ers drove fixed routes and knew how many newspapers were on
order for each route. The correct number of copies were loaded
onto the trucks and, once loaded, the drivers then drove their
routes and returned to the plant and the conclusion of the work
day.
In addition to the set number of papers provided to supply
the daily orders, additional copies were made available to the
drivers who used them for several purposes. These additional
copies were used by drivers to replace damaged copies discov-
ered when the papers were delivered and to make up for inad-
vertent shortages in the amount of the papers provided for de-
livery to a particular location. The drivers were also provided
with additional copies, referred to as “freebee” or “PR” (public
relations) copies of the newspaper which could be provided
gratis to retailers to enhance customer relations.
Circulation Director Hsu testified that drivers selling copies
of the newspaper personally for their own benefit was a prob-
lem. The Respondent regularly received complaints from its
retailers that the retailers were observing the Respondent’s
drivers selling newspapers from their trucks to the retailer’s
customers. In December 2002, Hsu testified he had received
reports that caused him to believe two or three of his employees
might be involved. Although the sale of newspapers had long
been against company policy, Hsu decided to post a notice to
drivers on the subject and caused driver foreman, Chiang, to do
so. The following notice was posted on or about the date it
bears.
All the truck drivers, employees, please be patient. I announce
one more time to inform the drivers that if they sell—this be-
havior, it is strictly prohibited, means to sell the newspaper in
private, during the route. And if you get caught for selling the
newspaper in private, the only penalty is termination of em-
ployment. I hereby ask everyone to think it over. For those
that did not do it, please maintain your behavior. For those
have done, please stop immediately. Signed Jiang Ming.
Dated December 29, 2002.
In February 2003, Hsu testified he received written reports
from the packing department that indicated that Jin Hua Zhang
had been observed over a period of time taking substantial
CHINESE DAILY NEWS 945
numbers of extra newspapers when the packing employees
were on break. One report indicated Zhang left with his truck as
if to commence his route, but would then circle the block, park,
enter the building through another entrance and then secretly
acquire additional newspapers and take them back to his truck.
Circulation Director Hsu reported these events to Business
Manager Gao. The Respondent limited and began to more
closely monitor the issuance of additional or extra copies of the
newspaper to the drivers. Sun testified that until that time driv-
ers were essentially free to simply help themselves to the num-
ber of papers they desired. At the drivers luncheon meeting
discussed above in which Chiang spoke for the first time as the
driver foreman, Business Manager Gao announced that extra
papers must be requested of the Director who would provide
them. Thereafter the employees in effect signed up for extra cop-
ies prior to receiving them.
Zhang testified that in early March 2003, Hsu approached
him in the parking lot and instructed him:
[Hsu] said someone said you took the newspaper. You have
to write to—write it down on the written report. I say every-
one take the newspaper. Why you ask me to write? . . . Di-
rect[or] Hsu just said, “We just ask you to do it when you go
home, because write the report.”
Circulation Director Hsu testified he told Zhang that if he
would write a report and admit his mistakes, the matter would
be dropped.17 Zhang submitted his report which did not address
nor confess to taking excessive copies of the newspaper nor of
selling them personally. It merely said that Zhang would follow
the company regulations and “aggressively co-operate with de-
partmental leadership” and contribute more to the department.
Driver Zhang testified that Hsu was unhappy with his report
and pressed Zhang for specifics which Zhang told him he could
not recall. Director Hsu told him that if he was not going to
cooperate, the company could institute legal proceedings
against him. Zhang then spoke to President Su about the matter,
but was simply told to work hard and cooperate with his super-
visors. He then spoke to Business Manager Gao. Zhang de-
scribed the conversation:
Q. And what was said during this conversation in Mr.
Gao’s office?
A. I said I went to see President Su, finish the conver-
sation with him.
Q. What else was said?
A. And Manager Gao mentioned about President Su.
Q. What did he say?
A. That we will—that make myself into steward, when
that happened, then that’s it.
Q. I don’t think I understand. Tell me what was said in
this conversation.

17 Chu testified:
In the Chinese tradition we want to give a chance if he admit he did
make mistake, we will give him the chance—as a matter of fact, we
already have at hand, we just want him to admit mistake and we will
let by-gones be by-gones and continue, let him continue to deliver the
newspapers here.
A. I went to see Manager Gao. I said, “I just finish my
conversation with President.
At Gao’s instruction Hsu viewed the Respondent’s security
system tapes in the areas described in the reports for the period
November 2002 through February 2003. Gao was directed to a
particular tape and both Gao and Hsu viewed the tape of Decem-
ber 3, 2002. Each testified the tape clearly identified driver
Zhang as the person described in the reports. Zhang was sus-
pended on April 22, 2003, without pay, pending investigation
of the matter. On May 5, 2003, Zhang was terminated for theft.
The Respondent’s agents denied that Zhang was fired for any
reason other than the theft of newspapers and his failure to admit
and recant his conduct when given the opportunity. Both Hsu
and Gao testified they were not aware of Zhang’s union activi-
ties if any and that his role in the driver’s protests regarding the
driver foreman was not a factor in the termination decision.
(2) Analysis and conclusion
The General Counsel argues that it is clear that the Respon-
dent’s agents were aware of Zhang and other drivers’ concerted
efforts respecting Foreman Chiang and that Zhang had spoken
to them on the issue. As discussed supra, violations of the Act
have been found respecting that series of events. The General
Counsel further argues the newspaper “theft” events were inex-
tricably interwoven with the foreman issue and the theft issue
was but pretext for an assertion by the Respondent of its gen-
eral authority over the drivers who had been resisting that au-
thority in challenging the foreman appointment.
Finally the General Counsel argues that Zhang at all times
admitted he used extra copies of the newspapers as other drivers
did, in the legitimate use that management approved. He argued
he only did what others did and did not steal or sell the papers.
The investigation of the Respondent proved no more. Thus,
counsel for the General Counsel argues, it was not reasonable
for the Respondent to believe that Zhang was engaging in ex-
ceptional, let alone improper conduct. Rather, the Government
argues, the Respondent engaged in a sham, after the fact inves-
tigation designed to justify the termination of Zhang and that it
at no time had a reasonable belief that he was committing theft.
The Respondent argues the evidence is clear. It was at all
relevant times concerned that its property was being stolen and
sold. There was no evidentiary dispute that it received third-
party reports that this was so. Again there was no evidentiary
dispute that it had received employee reports that newspapers
were being stolen and that Zhang was the driver doing so. It
was able to confirm Zhang’s identity as the driver taking papers
out of the building from the surveillance tape. Thus, argues the
Respondent, the Respondent would have fired Zhang regardless
of any protected activities he might have engaged in.
The allegation may be best considered first by assuming the
General Counsel has met its burden under Wright Line and to
turn to the Respondent’s defense. In McKesson Drug Co., 337
NLRB 935, 936 fn. 7 (2002), the Board noted:
In order to meet its burden under Wright Line (i.e., to show
that it would have discharged the employee even in the ab-
sence of protected activity), an employer need not prove that
the employee committed the alleged offense. However, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD946
employer must show that it had a reasonable belief that the
employee committed the offense, and that it acted on that be-
lief when it discharged him. See Yuker Construction, 335
NLRB 1072 (2001) (discharge of employee based on mis-
taken belief does not constitute unfair labor practice, as em-
ployer may discharge an employee for any reason, whether or
not it is just, so long as it is not for protected activity); Affili-
ated Foods, 328 NLRB 1107, 1107 and fn. 1 (1999) (it was
not necessary for employer to prove that misconduct actually
occurred to meet burden and show that it would have dis-
charged employee regardless of their protected activities;
demonstrating reasonable, good-faith belief that employees
had engaged in misconduct was sufficient); and GHT Energy,
294 NLRB 1011, 1012–1013 (1989) (respondent met Wright
Line burden by showing that employees would have been
suspended even in the absence of their protected activities,
because Respondent reasonably believed they engaged in se-
rious misconduct endangering other employees and the plant
as itself).
It is initially relevant to set forth what was not in issue and
what is not being decided herein. I am not deciding and the
parties were not arguing whether or not Zhang did in fact en-
gage in the misconduct attributed to him by the Respondent.
That is so because it is not the objective truth of circumstances,
but rather what the Respondent’s motivations were at relevant
times that determines the legality of the discharge. Thus, the
question initially at hand is whether or not the agents of the
Respondent in deciding to suspend and then terminate Zhang
took that action based on a good-faith belief that he had en-
gaged in theft of the Respondent’s property.
I have considered the evidence including the record as a
whole and the testimony and demeanor of the witnesses on the
question of the Respondent’s motivations in suspending and
terminating him. I conclude that the Respondent did in fact
believe that Zhang had taken newspapers for private sale and
that he had refused to acknowledge that fact and recant of his
actions and that he was suspended and then discharged in con-
sequence.
I reach this determination in essence because I accept the
logic of the Respondent’s chain of circumstances, and simulta-
neously reject the General Counsel’s attacks upon it. Thus I
find, as the Respondent argues, that it hear third-party reports
of the private sale of its newspapers by its drivers—i.e., of the
theft and sale of its product. It then learned that Zhang was
taking significant quantities of newspapers covertly and suspi-
ciously. Finally, it was able to confirm by surveillance tape the
suspicious behavior of Zhang. This chain of events led, I find
in crediting the testimony of Gao and Hsu, to their good-faith
belief that Zhang was at least one of the drivers stealing and
then selling newspapers against longstanding company rules. I
further find that, given their good-faith belief, the decision to
terminate Zhang was also taken in good faith and for the reason
of his misconduct and not for other reasons. In effect, I find that
the Respondent would have suspended and discharged Zhang on
this basis even in the absence of protected conduct. It follows
therefore that the General Counsel has failed to sustain com-
plaint allegations 7(g) and (h) and they will be dismissed.
Summary
I have found the following complaint paragraphs and subpara-
graphs were sustained and will be remedied below: 6(b), 8(c),
(d), (f), (g), and (h), 9, 10, 11, 13, 16, 17, 18, and 19.
I have found the following complaint paragraphs and subpara-
graphs were not sustained and will be dismissed: 6(a), (c), (d),
(e), (f), and (g), 7(a), (b), (c), (d), (e), (f), (g), and (h), 8(a), (b),
and (e), 12, 14, 15, and 20.
REMEDY
Having found that the Respondent violated the Act as set
forth above, I shall order that it cease and desist therefrom and
post remedial Board notices addressing the violations found.
Further the language on the Board notices will conform to the
Board’s decision in Ishikawa Gasket America, Inc., 337
NLRB 175 (2001), that reiterates the logic of the proposition
that remedial notices should be drafted in plain, straightfor-
ward, layperson language that clearly informs employees of
their rights and the violations of the Act found.
The General Counsel requests that the notices be in both
Chinese and English. Inasmuch as the employees are virtually
without exception Chinese speakers with limited English, the
request is appropriate and bilingual notices will be directed.
Respecting the finding that Wang’s beat assignments had been
improperly increased in late June 2001, the record reflects that
subsequent beat adjustments have occurred which are not under
challenge herein. It follows that a status quo ante remedy re-
quiring the Respondent to restore the beat assignment that
Wang carried before these late June additions were made is
unnecessary and inappropriate. I shall therefore not direct addi-
tional remedial steps respecting that violation.
The General Counsel requested that the remedy herein include
an order requiring a responsible official of the Respondent to
read the notice to employees in both English and Chinese. I do
not find the nature and quantum of violations found support
that request. I therefore deny it.
The essentially Chinese language only aspect of the Respon-
dent’s staff in my view requires an additional direction. It has
been my habit for years to affix to the bottom of any directed
remedial notice additional language informing employees and
other interested parties that they may obtain the entire decision
of which the posted notice is but a part by contacting the ap-
propriate regional office. To my knowledge no party in any
matter in which such language has been included has ever ex-
cepted to this language nor has the Board ever commented on
it. In this case, and in the unique circumstances presented, I
find it is further appropriate to request of the Board that the
final Board decision in the case, which would be the instant
administrative law judge decision or the Board’s decision on
exceptions, or the Board’s decision if modified by subsequent
review, also be translated into Chinese and copies in Chinese
made available to interested parties as well as an English-
language version of the final decision are made available.
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
CHINESE DAILY NEWS 947
2. The Charging Party is, and has been at all relevant times, a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
(a) On or about February 17, 2001, instructed employees to
abandon their support for the Union and threatened employees
with unspecified reprisals if they continued their support for the
Union.
(b) On or about November 5, 2001, encouraged an employee
to resign because of the employee’s union activities and sympa-
thies.
(c) On or about November 12, 2001, blamed an employee
who supported the Union for the decrease in all employees’
annual bonuses.
(d) On November 15, 2001, by memorandum, prohibited
employees from speaking about the Union and threatened em-
ployees with termination if they spoke about the Union.
(e) On or about February 2001 solicited employees com-
plaints and grievances and promised its employees increased
benefits and improved terms and conditions of employment if
they refrained from union organizing activities.
(f) On or about June 6, 2001, instructed employees that they
were prohibited from discussing working terms and conditions
of employment.
(g) On or about June 6, 2001, by memorandum, distributed
to employees and threatened employees with job loss because
of their support for or selection of the Union as their bargaining
representative.
(h) On June 5, 2002, by memorandum threatened and em-
ployee with unspecified reprisals for engaging in union and
protected concerted activities.
(i) On or about January 2003, interrogated an employee
about the employee’s union and/or protected concerted activi-
ties, and the union and/or protected activities of other employ-
ees.
(j) On or about January 26, 2003, interrogated an employee
about the employee’s union and/or protected concerted activi-
ties.
(k) In about February 2003 instructed an employee not to
sign letters or petitions or to otherwise engage in concerted
activities.
(l) On or about March 12, 2003, threatened employees with
promotion of a foreman about whom employees had concert-
edly complained, in retaliation for the employees concerted
activities.
4. The Respondent violated Section 8(a)(4), (3), and (1) of
the Act on or about June 15, 2001, by imposing more onerous
terms and conditions of employment on employee Lien Wang by
changing her job assignments by adding to her beat.
5. The unfair labor practices described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not otherwise violate the Act as al-
leged in the complaint and the complaint allegations not sus-
tained shall be dismissed.
On the above findings of fact and conclusions of law, and on
the basis of the entire record, I issue the following recom-
mended18
ORDER
The Respondent, Chinese Daily News, Monterey Park, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Instructing employees to abandon their support for the
Union and threatening employees with unspecified reprisals if
they continue their support for the Union.
(b) Encouraging an employee to resign because of the em-
ployee’s union activities and sympathies.
(c) Blaming an employee who supported the Union for the
decrease in all employees’ annual bonuses;
(d) Prohibiting employees from speaking about the Union
and threatening employees with termination if they spoke about
the Union.
(e) Soliciting employee complaints and grievances and
promising employees increased benefits and improved terms and
conditions of employment if they refrained from union organiz-
ing activities.
(f) Prohibiting employees from discussing working terms
and conditions of employment.
(g) Threatening employees with job loss because of their
support for or selection of the Union as their bargaining repre-
sentative.
(h) Threatening an employee with unspecified reprisals for
engaging in union and protected concerted activities.
(i) Interrogating an employee about the employee’s union
and/or protected concerted activities, and the Union and/or
protected activities of other employees.
(j) Interrogating an employee about the employee’s union
and/or protected concerted activities.
(k) Instructing an employee not to sign letters or petitions or
to otherwise engage in concerted activities.
(l) Threatening employees with promotion of a foreman
about whom employees had concertedly complained, in retalia-
tion for the employees concerted activities.
(m) Imposing more onerous terms and conditions of em-
ployment on employee Lien Wang by changing her job assign-
ments by adding to her beat.
(n) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections shall be waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD948
(a) Within 14 days service by the Region, post copies of the
attached notice at it Monterey Park, California facilities set
forth in the “Appendix.”19 Copies of the notice, on forms pro-
vided by the Regional Director for Region 21, in English and
Chinese, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, including
places where notices to employees are customarily posted in
each of the facilities where unit employees are employed. Rea-
sonable steps shall be taken by the Respondent to ensure the

19 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
notices are not altered, defaced, or covered by other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed one or more of
the California facilities involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at the closed facility at any time after
June 13, 2001.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
The allegations of the complaint not sustained herein shall
be, and they are, dismissed.