Foundation of California State University

National Labor Relations Board - Board Decisions

Mar 24, 1981

255 N.L.R.B. 202 (N.L.R.B. 1981)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foundation of California State University, Sacra-
mento and College and University Service Em-
ployees, Service Employees International Union,
Local 87. Case 20-CA-15255
March 24, 1981
DECISION AND ORDER
On December 3, 1980, Administrative Law
Judge David G. Heilbrun issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Charging Party filed exceptions and a sup-
porting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, except as hereafter modified.
We find no merit in the Administrative Law
Judge's conclusion that, although Respondent has
literally and technically violated the Act in the sev-
eral respects set forth in the complaint, the overall
circumstances in this case do not warrant remedial
action of any type. Respondent engaged in unlaw-
ful conduct which included threats of changes in
working conditions, i.e., work schedules, makeup
time, sick leave policy, and installation of time-
clocks; interrogation of employees concerning
union activities; and a threat that, if the employees
selected the Union as their collective-bargaining
representative, Respondent would lose control of
its revenues. Contrary to the Administrative Law
Judge, we find that Respondent's conduct consti-
tutes serious violations of employee rights and war-
rants issuance of a remedial order. Accordingly,
we shall substitute the following Order for the rec-
ommended Order of the Administrative Law Judge
and require Respondent to cease and desist from
infringing upon employee rights and to post the ap-
propriate notice.
CONCLUSIONS OF LAW
1. Foundation of California State University,
Sacramento, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. College and University Service Employees,
Service Employees International Union, Local 87,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening employees that, if the employ-
ees selected the Union as their collective-bargain-
ing representative, timeclocks would be installed;
contrary to past practice, anyone sick for 2 or
I Kal-Die Casting Corporation, 221 NLRB 1068 (1975).
255 NLRB No. 29
more days would have to bring a doctor's note; no
makeup time would be allowed for personal ap-
pointments; all employees would be required to
work 8 a.m. to 5 p.m. schedules; and Respondent
would lose control of its revenues; Respondent en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By interrogating employees concerning their
union membership, sympathies, or activities, Re-
spondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The above-described unfair labor practices are
unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Foundation of California State University, Sacra-
mento, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that timeclocks would
be installed if they selected the Union as their col-
lective-bargaining representative.
(b) Threatening employees that, contrary to past
practice, anyone sick for 2 or more days would
have to bring a doctor's note if the employees se-
lected the Union as their collective-bargaining rep-
resentative.
(c) Threatening employees that no makeup time
for personal appointments would be allowed if the
employees selected the Union as their collective-
bargaining representative.
(d) Threatening employees that all employees
would be required to work 8 a.m. to 5 p.m. sched-
ules if the employees selected the Union as their
collective-bargaining representative.
(e) Threatening employees that, if they selected
the Union as their collective-bargaining representa-
tive, Respondent would lose control of its rev-
enues.
(f) Interrogating employees concerning their
union membership, sympathies, or activities.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
FOUNDATION OF CALIFORNIA STATE UNIVERSITY 203
cercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its place of business at the campus of
California State University in Sacramento, Califor-
nia, copies of the attached notice marked "Appen-
dix."2 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees that
timeclocks would be installed if they selected
the Union as their collective-bargaining repre-
sentative.
WE WILL NOT threaten our employees that,
contrary to past practice, anyone sick for 2 or
more days will have to bring a doctor's note if
the employees selected the Union as their col-
lective-bargaining representative.
WE WILL NOT threaten our employees that
no makeup time for personal appointments
would be allowed if the employees selected
the Union as their collective-bargaining repre-
sentative.
WE WILL NOT threaten our employees that
all employees would be required to work 8
a.m. to 5 p.m. schedules if the employees se-
lected the Union as their collective-bargaining
representative.
WE WILL NOT threaten our employees that,
if they selected the Union as their collective-
bargaining representative, we would lose our
revenues.
WE WILL NOT interrogate our employees
concerning their union membership, sympa-
thies, or activities.
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 Labor Relations Act.
FOUNDATION OF CALIFORNIA STATE
UNIVERSITY, SACRAMENTO
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard before me in Sacramento, California, on
September 11, 1980, based on a complaint alleging that
Foundation of California State University, Sacramento,
herein called Respondent, verbally threatened employees
with adverse changes in their terms and conditions of
employment and that Respondent would lose control of
its revenues, all if they selected College and University
Service Employees, SEIU, Local 87, herein called the
Union (except as to occurrences on February 20, 1980),
as their collective-bargaining representative, and asser-
tedly later interrogated employees in January 1980 about
their union activities.
Upon the entire record,' my observation of witnesses,
consideration of the General Counsel's oral argument,
made at the conclusion of hearing, and of Respondent's
post-hearing brief, I make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
As an internal activity of the organization, 2 a five-
member personnel committee undertook review of
formal personnel policies, as they had existed without ap-
preciable change since 1971. Chaired by one of its three
faculty members, this body also comprised David W.
Canham, Jr., Respondent's executive director, and Terri
Shannon, a grants and contract technician serving as staff
representative elected from among employees. Structur-
ing of the new document was done primarily by Re-
search Coordinator Carol Burman during the summer of
1979, and in early fall the personnel committee consum-
mated a review before transmittal to Respondent's gov-
erning body for approval. 3 As this transpired former
Personnel Staff Technician Carol Brainard typed drafts
of the material, making minor editing and content
I Certain errors in the transcript are hereby noted and corrected.
2 Respondent is a nonprofit corporation with its office and place of
business at the campus of California State University in Sacramento, Cali-
fornia, where it is engaged in the business of receiving and distributing
funds for educational purposes and for which it received revenues total-
ling in excess of $4.6 million during its fiscal year ending June 30, 1979.
of which more than S1.9 million was derived from Federal grants. On
these admitted facts I find that Respondent is an employer engaged in
commerce within the meaning of Sec. 2(6) and (7) of the Act, and other-
wise that the Union is a labor organization within the meaning of Sec.
2(5).
3 All dated hereafter are in 1979. unless shown otherwise.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes as she did. Canham also provided input, which
to Brainard's recollection dealt with refinement in how
the executive director was referred to. A final bound
document of 29 pages was officially approved as the or-
ganization's personnel manual at a board of directors'
meeting held November 15.
Among various subjects covered in seven major
groupings was phraseology on both work schedule(s)
and sick leave. In relevant part these read, respectively:
1. Standard Work Schedule-The standard work
schedule for full-time employees other than special
summer hours, shall be eight hours per day on five
consecutive days, excluding holidays, from 8:00
a.m. to 5:00 p.m., excluding one hour for lunch.
2. Alternate Work Schedule-Alternate work
schedules for full-time employees consisting of forty
hours per week, excluding meal period, which must
be at least one-half hour for a six hour shift, may be
approved by the appropriate Executive employee.
Administrative and executive employees shall aver-
age at least 40 hours work per week, taking into
consideration irregular work flows resulting from
deadlines and priorities inherent in their Foundation
work.
3. Use of Sick Leave Credit
a. Sick leave time off with pay shall be permit-
ted to the extent of an employee's sick leave ac-
crual when an employee is unable to perform
work because of illness or disability, including
medical, dental and optical appointments.
g. Sick leave with pay in excess of two con-
secutive days may require substantiation by a
physician's statement at the discretion of the Su-
pervisor.
Canham testified without contradiction that the per-
sonnel manual was silent as to both timeclocks and the
concept of "makeup" time. He added that he could not
have installed timeclocks without approval of Respond-
ent's board of directors, nor was there any difference in
policy with respect to employee makeup time comparing
before and after adoption of the manual. Additionally, he
testified that the quoted passages represented no change
from what had been in effect over several prior years.
It was in this context that during the fall Shannon con-
tacted Kathy Felch, the Union's former northern coordi-
nator, and asked on behalf of various employees that
they be informed about steps in organizing themselves.
Felch followed up with several meetings out of which
she secured authorization cards and prepared the follow-
ing letter, which she delivered to Canham at his office
on November 2.
This is to advise you that the majority of the regu-
lar full-time employees of the Foundation of CSUS
wish to be represented by CAUSE-SEIU in all mat-
ters pertaining to their employment and in order to
promote and protect their economic welfare.
This is to request that you voluntarily recognize
CAUSE-SEIU as the exclusive representative of
these employees.
I am requesting to meet with you to begin contract
negotiations. Please contact me at the address below
to arrange a meeting.
Felch testified that in a mood of rising anger Canham re-
sponded to this by saying he believed employees had
been forced to align themselves with the Union through
promise of benefits, and he emphatically declined to
extend voluntary recognitions This ended the meeting
and Felch walked to a nearby Koin Kafe and made notes
of the episode while awaiting prearranged rendezvous
with certain of Respondent's employees.
Meanwhile, as testified to by Brainard, Canham had
emerged from his office immediately following Felch's
departure and in a seemingly upset mood said loudly,
"Well, if this is what the staff members want, then there
will be timeclocks and there will be other changes made
in this work."5 Shannon testified to being aware of Felch
having made an office visit to Canham on November 2,
and during that afternoon being approached by Canham
in the copy machine room. Under questioning by the
General Counsel, she thus described the exchange that
followed:
Q. Now, as best you recall, will you tell us what
took place in the machine room that afternoon?
A. Well, at that time, I-my job was basically
running the Burroughs L5, which is a machine that
we're running, and Mr. Canham came in to make
some copies. He set some papers down on the card
reader, which is a machine connected to the L5,
and turned around to make some copies. Then,
when he turned around to face me again, he asked
me if we people knew what we were doing.
He said, "Do you people know what you are
doing?" That's what he said. Keep going?
Q. Yes.
A. Okay. And I said, "Yes, I think we do." And
he said, "No, I don't think you do." And I said,
"Yes, we do." And he went on to say that the
Union was going to try to control revenues and it
would make the Foundation go broke, in that the
Union would try to make the Foundation pay more
in salary than what the Foundation could afford,
and therefore, we would go broke.
He also mentioned that we would have time-
clocks, that the scheduled hours for employees
would be from 8:00 to 5:00, with no exceptions, in-
4On November 5, a representation petition involving the parties was
filed as Case 20-RC-14943. This led to a secret-ballot election early in
1980, and ultimate certification of the Union on February 25, 1980, as ex-
clusive collective-bargaining representative for approximately 11 full-time
and regular part-time office and technical employees involved in the ac-
tivity, apart from customary unit exclusions.
5 Brainard had also recalled a routine staff meeting occurring during
the summer, at which Canham made the statement that if employees
were to join a union he would resign.
FOUNDATION OF CALIFORNIA STATE UNIVERSITY 205
cluding Nancy Strand, who worked different hours,
and Shirley Madeira, who worked, I believe, 7:00 to
4:00 at that time, and I also was working 7:00 to
4:00 at that time, but didn't make any mention to
me about myself.
He also mentioned that anyone who took two
days or more sick leave would have to bring a note
from a doctor-okay.
Q. At that time, did you-did you have a policy
of being able to take off from work to take care of
personal business or other errands?
A. If someone was sick, we would call in and-
well, yes, I guess I should say yes.
Q. Well, can you explain to us how that worked?
A. Sure. If a person is sick, they can just call in
by 8:00 in the morning and notify someone at the
Foundation that we would not be in that say due to
our being ill, and every day up to that, if we were
sick, we call in and upon your return, you fill out
an absence form, have your immediate supervisor
sign it, and turn it in, and that's it.
Q. All right. Now, if you needed time off for
other purposes other than being sick, was that avail-
able?
A. Yes, it was. We have vacation time, CTO[ 6]
time due us, and we also had ways that we could
make up time.
Q. All right.
A. Oh, which reminds me-that Mr. Canham
said that there would be no making up of time, that
if we were late, we would be docked, and if we had
to go to the doctor or see the babysitter, we would
also have to take CTO time or vacation, that we
would be docked. There would be no more making
up of time.
Shannon testified further that in December she con-
versed with controller Jordan Maple, her immediate su-
pervisor, in his office. She recalls Maple basically saying
that the Union would try to control revenues of the
Foundation, inflate salaries to an unaffordable extent, and
cause Respondent to go broke. She added that Maple
had simply initiated the subject after she raised questions
about a project then underway. Finally Shannon testified
that during January 1980 Canham asked her into his
office for discussion of projects. From this Canham slid
into questioning her about why employees were joining
the Union and whether it was because of security or pay
reclassification. They then gently debated whether the
Union effectively represented employees, and the discus-
sion ended with Shannon resignedly viewing the episode
as another example of how Canham lacked good com-
munication skills.
Chronology of this case ends with circumstances oc-
curring during a meeting of the full personnel committee
6 "CTO" stands for compensatory time off. Canham testified that it is
."given" to employees as a makeup for the several State of California
holidays which are not formally observed by the University and also em-
braces the one "personal holiday" accorded each employee per year
CTO is not labelled as such in the personnel manual, but to Canham's
understanding would associate with both its holidays and personal holi-
day provisions. Shannon's casual use of the term in her testimony readily
suggests that employees recognize this relationship.
on February 20, 1980. Shannon testified to eerily feeling
that all Canham's remarks during this meeting were de-
signed to induce her into voicing a contradiction. She
avoided this trap, although suffering his dagger-like gaze,
until he finally said, "The Union is trying to besmirch
management." With this Shannon said, "No, they're
not," and on such contradiction Canham arose out of his
seat across the table and leaned, flushed, and menacingly
across toward her until other committee members re-
strained him. This permitted Shannon to breathe more
freely and the episode, which the General Counsel ad-
vanced ". . . by way of background and not specifically
to establish or prove an unfair labor practice ... ," thus
concluded.
Respecting the several verbalisms comprising this case
Canham denied being angered by Felch's visit on No-
vember 2, or that he told her employees had been forced
to join the Union. He did recall that moments after
Felch's departure he commented inquiringly to Brainard
about why Felch would have appeared, to which a non-
committal response was made. Canham flatly denied stat-
ing to Brainard that timeclocks would be installed or that
employees would lose benefits for engaging in union ac-
tivities. Canham had no recollection of making a state-
ment during the previous summer that he would resign
should Respondent's employees become unionized.
Canham also denied discussing the Union's organization-
al campaign with Shannon on the afternoon of Novem-
ber 2, and as subsumed in such testimony denied that he
had said the Union would attempt to control Respond-
ent's revenues to the point of shutting it down, that time-
clocks would be installed, that henceforth employees
would work only 8 a.m. to 5 p.m. without exception,
that he would call for a written medical excuse from any
employee claiming at least 2 consecutive days of sick
leave, or that makeup time requirements were even dis-
cussed let alone that they would be tightened. As to
events on February 20, 1980, at the personnel committee
meeting, Canham remembered "primarily" referring to
an article in a daily newspaper named the Sacramento
Union which he did term as trying to besmirch manage-
ment. 7 Canham admitted that he may have glared at
Shannon during the meeting, but was never enraged or
engaged in threatening moves toward her as would cause
others to restrain him back into a chair. Maple testified
that as controller his duties involved financial manage-
ment reporting and advising on financial affairs. He had
no recollection of a conversation with Shannon in De-
cember of the type she described, nor to his best knowl-
edge that he ever made a remark about the Union
coming to control revenues and bankrupt Respondent.
The necessary credibility resolutions in this case will
do much to direct its disposition. Of the five persons tes-
tifying, all but Felch were possessed of frailties seeming
to affect their testimony. This is particularly true of both
Shannon and Canham, the two chief antagonists in what
the case is really about. From this an assessment of credi-
bility may be made in three parts. On demeanor grounds
and in harmony with all probabilities of the unfolding or-
' Shannon conceded that during the February 1980 period there were
articles in the Sacramento Union newspaper about Canham.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganizational campaign, Felch is a highly credible witness.
She was impressively composed and forthright while on
cross-examination and later recall by Respondent only
heightened her seeming veracity. This conclusion is
strengthened still more by her explanation of union tac-
tics and the content of informal notes she prepared on
November 2 (which were made available to Respond-
ent's counsel). While her credibility is remarkably high,
the weight of her testimony is limited to showing that
Canham displayed a cross-reaction to her appearance.
This leads to Brainard who I note had some bias against
Canham, but who, nevertheless, displayed sufficiently ob-
jective candor as to warrant being believed. I am con-
vinced that she has accurately recounted an impetuous
projection by Canham about advent of a union rigidify-
ing working conditions through use of a timeclock tied
to other unspecified changes. Respondent earnestly
argues against crediting Brainard because of disparity be-
tween her testimony and the content of an investigatory
affidavit which she signed in April 1980. I find nothing
significant in this because what has been raised points
merely to routine enlargement on detail and immaterial
semantic variations. My evaluation of Maple is on the
same plane as Brainard, in the sense that I believe he has
conveniently forgotten echoing a theme first expressed
by Canham (his superior) to the effect that greedy objec-
tives of the Union would surely doom this nonprofit or-
ganization's future.
The third phase of resolving credibility involves con-
siderably more intricate factors. This is based on the sep-
arate personalities, motivation, and emotions revealed
through the testimony of Shannon and Canham, as well
as their interaction. In terms of demeanor as that can be
most fairly viewed, and coupling it to other accepted cir-
cumstances, I am satisfied that Shannon is at least at-
tempting to be truthful. The problem is that she displays
leaky thought processes, a dilettante capacity to absorb
fast-breaking reality, and a peculiar style of vacillation
that makes it difficult to confidently assess just what she
wishes to describe. This overall characterization is based
on testimony in which Shannon managed to agree and
then immediately disagree that Canham's remarks about
sick leave constituted "a threat," in which she practiced
typing skills by impulsively tearing notes of various re-
marks by Canham into "itty, bitty pieces," in which it
was first "not a fact" and then unequivocally true that
news items of the Sacramento Union were extant, all in
context of knowing what Canham "meant by that state-
ment . . . at the time," the rather sophomoric explana-
tion of adopting the term "besmerg," and that while
being "sure" that other employees turned in sick leave
slips following illness of more than 2 straight days she
was "not sure what other people did" in this regard.
Notwithstanding such vacillation and uncertainty, I am
persuaded to believe that during impromptu dialogue
with Shannon on November 2 Canham did generally ar-
ticulate prospects for changed conditions of employment
should the Union prevail. Considering their mutual role
on the organization's personnel committee and Canham's
cantankerous reaction to Felch having civilly delivered a
recognition demand, I consider it most likely that
Canham did expound to some degree on how unionized
working conditions might compare with those liberally
in effect as of November 2 and soon to be codified. I
also believe there is enough semblance of truth in her
testimony that during December Maple spoke about in-
clinations of a labor organization to plunder the revenues
of this mere auxiliary to the academic process, and that
in January 1980 Canham pointedly questioned her about
employees' persistent interest in the Union. From the
standpoint of demeanor and delivery, Maple's denial of
having so spoken was faint-hearted at best. I discredit his
meek attempt at concealment, but temper this with a
finding that Maple spoke during the particular incident
only in the most speculative and tentative sense, gently
passing a cue he undoubtedly received from the more
forceful Canham. It was, I hold, simply that thought
should be given by Shannon and other devotees about
how economic self-restraint is often not the touchstone
of public (or quasi-public) employee unionism. I express-
ly decline to find that a discreet, moderately sophisticat-
ed person such as Maple, experienced as he is in the nu-
ances of financial affairs, actually uttered the "control
the revenues, make [the Foundation] not be able to
afford to pay everybody and . . . go broke" verbiage.
Instead I find that, while the topic was discussed be-
tween Shannon and Maple during December, her testi-
mony is a discountable composite of inadequate ability at
recall, suggestibility stemming from these notions having
been earlier voiced by Canham and a yet-maturing intel-
lect that tries but often fails to make an accurate percep-
tion in the transmutation process of experiencing actual
reality. The January episode which paragraph 6(e) of the
complaint addresses yields a standard finding that, con-
sistent with his entire outlook toward an unwelcome de-
velopment in his professional life, Canham unwarranted-
ly interrogated Shannon about union activities as the im-
minent secret-ballot election drew near.
It is implicit in what is already written that I generally
discredit the testimony of Canham. He denied practically
every remark and mood projection attributed to him by
witnesses whose persuasion ranged from marginal to ex-
cellent. Further, he denied having any authority, as ex-
ecutive director, to change any of the identified working
conditions without approval of Respondent's board of di-
rectors. Canham did not deny the alleged interrogation
of Shannon during January 1980, however Respondent
has moved to dismiss this allegation as a matter of law.
Canham admitted only to a fleeting question of Brainard
on November 2, and circuitously conceded having cast a
glare toward Shannon on February 20, 1980. He gave
demeanor impressions of not deigning to acknowledge
any past blustering, and generated a rather pure, sym-
metrical form of mendaciousness, save only in explana-
tion that the Sacramento Union newspaper, not the
Union herein, was the object of his besmirchment com-
plaint on February 20, 1980.8
8 It is not unusual for a public figure, or at least a controversial one, to
be unflatteringly newsworthy. With respect to sister institution Sonoma
State University, another California daily newspaper recently carried a
story about perceived "wrongdoing" in regard to maneuverings whereby
a "longtime friend" of Peter Diamandopoulos, the institution's president,
was hired in an administrative capacity after Diamandopoulos found him
Continued
FOUNDATION OF CALIFORNIA STATE UNIVERSITY 207
The upshot of overall credibility resolutions is a series
of factual findings to the effect that paragraph 6 of the
complaint is supported by probative evidence in its en-
tirety, and paragraph 7, at least to the extent of an utter-
ance by Canham, is similarly supported. I do not, how-
ever, recommend any remedial action and instead pro-
pose that this odd, inconsequential litigation be dismissed.
A supervening factor is that self-organization has
smoothly proceeded to fulfillment and the tactics, won-
derment, and reactions of 1979 have merged into a certi-
fication, effective earlier this year. I was not informed of
the results of the certification, but contrarily there has
been no hint of nonprogress in negotiations that may
have followed. More importantly the General Counsel
has singled out several blithering remarks all made
within scant hours of Canham's astonished encounter
with unionization on the hoof. While I do not condone
his lack of self-restraint, there are larger perspectives to
the case and other public policy to be balanced. In the
first place all subjects remarked on were either expressly
contained in the laboriously aborning personnel manual
to which Shannon herself contributed or were by impli-
cation outside the province of Canham to effect. Second-
ly, it is illogical to seek to elevate prepetition mouthings
such as these to the stature of unfair labor practices,
while at the same time relegating Canham's bumptious,
menacing behavior on February 20, 1980, to the shad-
owy realm of "background." Next, an analysis of Can-
ham's remark as it is to be assessed within the purview of
the complaint's paragraph 7 shows simple rhetoric on its
face, from which no prudent person could absorb fear.
The statement was heard only by Shannon who herself
had fully sounded out the Union's proposed functioning,
and there is no hint of how the revenue controlling phe-
nomenon could manifest itself. For this reason, the utter-
to be "most qualified" from among 50 applicants. The news story carried
Diamandopoulos' denial of the charge and his characterization of adverse
criticism as "political." Independent-Journal. San Rafael. California,
Wednesday, October 1, 1980, p. II, "Censure vote due at SSU."
ance falls outside doctrine under which the Board finds
that employees have been coerced through a provocative
prediction of adversity from their selection of a collec-
tive-bargaining representative. Further, the isolated inter-
rogation of Shannon by Canham was of such innocuous
character as to lack any bona fide reason that it be for-
mally remedied.9 Shannon's own stylized testimony
highlighted only her disappointment and mood change, a
far cry from common instances in which untoward inter-
rogation of other settings would reasonably have a coer-
cive effect. In summary, this entire case is well suited to
Member Penello's frequent observations that the Board is
best advised not to concern itself with "trivia" and "tri-
fles." See Peerless Food Products. Inc., 236 NLRB 161
(1978); United States Postal Service, 242 NLRB 288
(1979).
Notably both Brainard and Shannon did little to con-
ceal their dislike of Canham. I construe their controlled
testimony touching, respectively, on his "reactionary"
style with "some things left to be desired" as tacit agree-
ment with the questioner's probing about it being true
that they each had some animosity toward him. Further-
more, they plainly observed that "underlying feeling"
concerning "some of the things we've done," reflected a
longstanding desire among employees to see Canham
gone as executive director. In view of this undercurrent,
the fact that my discrediting of Canham embodies find-
ing he once recklessly did announce how he would bow
out under the presumed affront of unionization, the sev-
eral totally unfulfilled "threats" that he made, and the
overall theme of the General Counsel's case, it may
fairly be said that Canham's most insidious conduct was
failure to resign as so gallantly predicted.
[Recommended Order for dismissal omitted from pub-
lication.]
9 Respondent contends that mere interrogation in an atmosphere
devoid of threat or promise need not be found to constitute unlawful
conduct. This principle is no longer viable in view of a recent Board de-
cision overruling past authorities to that effect PPG Industries. Inc., Lex-
ington Plant. Fiber Glass Division. 251 NLRB 1146 (1980).
I