Gallup, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 2001

334 N.L.R.B. 366 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
Gallup, Inc. and United Steelworkers of America,
AFL–CIO–CLC. Case 16–CA–20442
June 27, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On March 7, 2001, Administrative Law Judge Pargen
Robertson issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed cross-exceptions, a supporting brief, and an
answering brief. 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 briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified3 and set
forth in full below.
1. The judge found that by promulgating new rules in
its interviewing policies and procedures manual on May
29, 2000, in response to the Union’s campaign at the
Respondent’s Austin, Texas facility, the Respondent vio-
lated Section 8(a)(1) of the Act. The new rules in the
Respondent’s manual prohibited taping, by audio or
video, activities at work; prohibited solicitation and dis-
tribution in the workplace at any time; prohibited posting
nonbusiness materials in working areas and common
areas of the building; limited posting of nonbusiness ma-
terials to the breakroom bulletin board provided the no-
tice was dated and had been approved by a manager and
provided the notice would be removed after 1 month;
prohibited using the Internet for anything other than
business; and prohibited using e-mail to solicit for non-
business matters.

1 The General Counsel filed a motion to strike the Respondent’s ex-
ceptions and supporting brief on the ground that they do not comply
with the Board’s Rules and Regulations. We find that the Respondent’s
exceptions and supporting brief substantially comply with our require-
ments, and we therefore deny the General Counsel’s motion.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 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.
3 In addition to the modifications discussed below, we shall modify
the recommended Order to track more closely the violations the judge
found. We shall also change the date in par. 2(b) of the judge’s recom-
mended Order in accordance with our decision in Excel Container, Inc.,
325 NLRB 17 (1997). Finally, we shall modify the judge’s recom-
mended Order to require the Respondent to rescind the rules it dis-
criminatorily promulgated. See Youville Health Care Center, 326
NLRB 495 (1998).
In agreeing with the judge’s finding of a violation, we
emphasize the fact that the Respondent promulgated and
enforced the above-mentioned rules immediately after
discovering the Union’s organizing efforts. As the Fifth
Circuit Court of Appeals has stated, an employer’s
“promulgation of a [new rule] upon the commencement
of a union organizational campaign is strong evidence of
discriminatory intent,” although the employer may dem-
onstrate that imposing the new rule “was justified be-
cause the union campaign brought about substantial work
disruption.” NLRB v. Roney Plaza Apartments, 597 F.2d
1046, 1049 (5th Cir. 1979), enfg. 232 NLRB 409 (1977).
The record contains no evidence that the Union’s orga-
nizing efforts interfered with work in any way.4 Indeed,
the judge specifically found that the “Respondent did not
change its rules and implement its new manual because
of production problems” at the Austin Center. Accord-
ingly, we agree that the Respondent violated Section
8(a)(1) by promulgating the new rules.
2. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by temporarily closing its
Austin, Texas facility, from May 25–30, 2000, because
of the Union’s organizing efforts. The judge also found
that the posting of a memorandum on May 26, 2000,
informing employees that the facility was temporarily
closed because of the union campaign was an independ-
ent violation of Section 8(a)(1).
In its exceptions, the Respondent argues, inter alia, that
it was error for the judge to find the independent 8(a)(1)
violation because the complaint did not allege the memo-
randum to be an unfair labor practice. We find no merit
in this contention.
It is well established that the Board may find and rem-
edy an unfair labor practice not specifically alleged in the
complaint “if the issue is closely connected to the subject
matter of the complaint and has been fully litigated.”
Pergament United Sales, 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990). Here, the necessary
connection is clear: the subject matter of the complaint
concerned the Respondent’s response to the unionization
effort, including the closing of the Austin facility, and
the memorandum in issue explained the Respondent’s
reasons for the closing. Further, the circumstances sur-
rounding the posting of the memorandum were fully liti-
gated at the hearing. Accordingly, we conclude that the
Pergament test has been satisfied and that the judge
4 We do not rely on the judge’s alternative analysis under Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U. S. 989 (1982).
334 NLRB No. 52
GALLUP, INC. 367
properly found the posting of the memorandum to consti-
tute a violation of Section 8(a)(1).
The General Counsel excepts to the judge’s failure to
include this posting violation in his conclusions of law.
We find merit in the exception and shall modify the
judge’s conclusions of law and recommended Order ac-
cordingly.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3:
“3. The Respondent has violated Section 8(a)(1) by
engaging in the following conduct because of its em-
ployees’ union activities: changing its rule to prohibit
personal use of its copy machine; changing its rule to
prohibit posting notices except in the break room after
dating the notice and securing supervisory approval;
posting a notice to employees on May 26, 2000, explain-
ing that the Center would be temporarily closed because
of its employees’ union activities; issuing a new Inter-
viewing Policies And Procedures Manual on May 29,
2000; telling employees they cannot distribute union
materials inside the building, but outside the Center; tell-
ing employees they cannot distribute union literature in
the front bulletin board area; telling employees that dis-
tribution of union literature is prohibited in work areas
and that union literature may be distributed only in the
break room; telling employees that they may not offer
union literature to any employee who has previously de-
clined union literature; telling employees that distribution
of union literature in work areas is not permissible and
that employees may be charged with harassment for of-
fering literature to anyone who previously declined union
literature; and posting a USAA Realty notice prohibiting
solicitation outside its Center.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Gallup, Inc., Austin, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing its rule to prohibit personal use of its
copy machine, because of its employees’ union activities.
(b) Changing its rule to prohibit posting notices except
in the break room after dating the notice and securing
supervisory approval, because of its employees’ union
activities.
(c) Posting a notice to employees explaining that the
Austin, Texas Center, would be temporarily closed, be-
cause of its employees’ union activities.
(d) Issuing a new interviewing policies and procedures
manual, because of its employees’ union activities.
(e) Telling employees they cannot distribute union ma-
terials inside the building, but outside the Center, be-
cause of its employees’ union activities.
(f) Telling employees they cannot distribute union lit-
erature in the front bulletin board area, because of its
employees’ union activities.
(g) Telling employees that distribution of union litera-
ture is prohibited in work areas and that union literature
may be distributed only in the breakroom, because of its
employees’ union activities.
(h) Telling employees they may not offer union litera-
ture to any employee who has previously declined union
literature, because of its employees’ union activities.
(i) Telling employees that they may be charged with
harassment for offering literature to anyone who previ-
ously declined union literature, because of its employees’
union activities.
(j) Posting a USAA Realty notice prohibiting solicita-
tion inside and outside of the building, because of its
employees’ union activities.
(k) Temporarily closing its facility, because of its em-
ployees’ union activities.
(l) Issuing disciplinary action to its employees, be-
cause of its employees’ union activities.
(m) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the following discriminatorily promulgated
rules: the rule prohibiting personal use of its copy ma-
chine; the rule prohibiting posting except in the break
room after dating the notice and securing supervisory
approval; the rule prohibiting taping, by audio or video,
activities at work; the rule prohibiting solicitation and
distribution in the workplace at any time; the rule prohib-
iting posting nonbusiness materials in working areas and
common areas of the building; the rule limiting posting
of nonbusiness materials to the break room bulletin board
provided the notice was dated and had been approved by
a manager and provided the notice would be removed
after 1 month; the rule prohibiting using the Internet for
anything other than business; and the rule prohibiting
using e-mail to solicit for nonbusiness matters.
(b) Within 14 days from the date of this Order, remove
from its files all reference to its unlawful closure of its
Center from May 25–30, 2000, and its unlawful warning
issued to William Lewandoski on June 9, 2000, because
of its employees’ union activities, and within 3 days
thereafter notify William Lewandoski and all employees
involved in its unlawful closure, in writing, that this has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
been done and that those unlawful actions will not be
used against any of those employees in any way.
(c) Within 14 days after service by the Region, post at
its facility in Austin, Texas, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 23, 2000.
(d) Within 21 days after service by the Region, file
with the Regional Director, Region 16, a sworn certifica-
tion of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT change our rules to prohibit personal
use of our copy machine, because of our employees’ un-
ion activities.
WE WILL NOT change our rules to prohibit posting
notices except in the break room after dating the notice

atters.
5 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.”
and securing supervisory approval, because of our em-
ployees’ union activities.
WE WILL NOT post notices to employees explaining
that our Austin, Texas Center, will be temporarily closed,
because of our employees’ union activities.
WE WILL NOT issue a new Interviewing Policies and
Procedures Manual, because of our employees’ union
activities.
WE WILL NOT tell employees they cannot distribute
union materials inside the building, but outside the Cen-
ter, because of our employees’ union activities.
WE WILL NOT tell employees they cannot distribute
union literature in the front bulletin board area, because
of our employees’ union activities.
WE WILL NOT tell employees that distribution of un-
ion literature is prohibited in work areas and that union
literature may be distributed only in the breakroom, be-
cause of our employees’ union activities.
WE WILL NOT tell employees they may not offer un-
ion literature to any employee who has previously de-
clined union literature, because of our employees’ union
activities.
WE WILL NOT tell employees that they may be
charged with harassment for offering literature to anyone
who previously declined union literature, because of our
employees’ union activities.
WE WILL NOT post a USAA Realty notice prohibit-
ing solicitation outside our Center, because of our em-
ployees’ union activities.
WE WILL NOT temporarily close our facility, be-
cause of our employees’ union activities.
WE WILL NOT issue disciplinary action to our em-
ployees, because of our employees’ union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL rescind the following discriminatorily
promulgated rules: the rule prohibiting personal use of
our copy machine; the rule prohibiting posting except in
the break room after dating and securing supervisory
approval on the notice; the rule prohibiting taping, by
audio or video, activities at work; the rule prohibiting
solicitation and distribution in the workplace at any time;
the rule prohibiting posting nonbusiness materials in
working areas and common areas of the building; the
rule limiting posting of nonbusiness materials to the
breakroom bulletin board provided the notice was dated
and had been approved by a manager and provided the
notice would be removed after 1 month; the rule
prohibiting using the Internet for anything other than
business; and the rule prohibiting using e-mail to solicit
for nonbusiness m
GALLUP, INC. 369
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful May 25–30, 2000, closure of the Center and
the unlawful June 9, 2000 warning issued to William
Lewandoski, and WE WILL, within 3 days thereafter,
notify Lewandoski and all our Austin Center employees
in writing that this has been done and that the unlawful
actions will not be used against them in any way.
GALLUP, INC.
Linda Reeder, Esq., for the General Counsel.
William A. Harding, Esq. and Jack L. Shultz, Esq., of Lincoln,
Nebraska, for the Respondent.
DECISION
STATEMENT OF CASE
PARGEN ROBERTSON, Administrative Law Judge. A
hearing was held in Austin, Texas, on December 18 and 19,
2000. Respondent and the General Counsel were represented
and afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence. Respondent and
the General Counsel filed briefs.1 I have considered the entire
record and briefs. At material times Respondent has been a
Delaware corporation with a place of business2 in Austin,
Texas, where it has been engaged in market research and con-
sulting services for various companies; during the 12 months
before the complaint issued, in conducting those business op-
erations, Respondent performed services valued in excess of
$50,000 in States other than Texas; and it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act). The
Charging Party (the Union) has been a labor organization at
material times within the meaning of Section 2(5) of the Act.
Patrick Bogart, Viet Nguyen, Nancy Moses,3 and Jean
Timmerman have been supervisors and agents of Respondent at
material times.4
The Record Evidence
The complaint alleges that Respondent made unlawful rule
changes including solicitation and distribution of union materi-
als, and a layoff, because of its employees’ union organizing
activities. The General Counsel’s witnesses included former
employee Adam Fischer and employees Brent Malkus, William
Lewandoski, Sandra Griffin, Kristal Cain, Ariel Coleman, and
Shannon Mouser. The employees are interviewers and track-
ers. Both conduct opinion polls and market research surveys.
Trackers are interviewers who work on the same project for a
period of time. Employees do not adhere to a specific schedule
but commit to work a designated number of hours during a
specific period of time. Adam Fischer last worked as a tracker.

1 Respondent’s motion to file a reply brief is denied. The Board’s
rules and regulations do not provide for reply briefs.
2 The Austin facility known as the Austin Interviewing Center is fre-
quently referred to as the “Center.”
3 Nancy Moses is sometime referred to as Nancy Arredondo.
4 All the above-mentioned matters were admitted in Respondent’s
answer.
On a typical workday he would start at the front bulletin board
where the news of the day was posted. Other postings included
information about projects, quotas, team meetings, etc. Some-
times there would be nonbusiness materials posted. Someone
worked with a theater and there would be theatrical notices on
the board. One woman was cooking and selling food at Ann’s
Kitchen. She posted an advertisement along with prices. There
was a stack of flyers from Sears. Below the front board there
were plastic paper holders and there was an advertisement hav-
ing something to do with Disney’s Magic Kingdom. After
consulting the board, Fischer would routinely go to one of the
computer terminals near the managers’ office and sign in to his
assigned project. He would then go to his computer and log on,
put on his headset and start the computer dialing phone num-
bers. While waiting for a response from an eligible respondent
to the phone dialings, he would read, draw, do collages, play
board games with his immediate neighbors, and talk to people
in the area. They talked about anything including things that
were not work related such as politics, religion, and anything
else.
Brent Malkus was the employee that contacted the Union
and he did so on February 29, 2000. There were six or so meet-
ings with employees about the Union from February 29 until
May 31, 2000. Malkus was paged to Patrick Bogart’s office
around 7:30 p.m. on March 6. Bogart told Malkus to shut the
door and then Bogart said that he had heard that Malkus were
saying some very negative things. He asked Malkus if there
was anything he was disgruntled about. At one point Malkus
said that he would like to get back to work and Bogart said no,
that Malkus was getting paid for that time. At the end of the
conversation Malkus asked if he was skating on thin ice be-
cause of the conversation and Bogart assured him that he
wasn’t. That meeting lasted for 98 minutes.5 That was the first
closed door meeting Malkus had with Bogart. Bogart did not
deny Malkus’ testimony about that meeting.
Adam Fischer testified that he first met with the Union and
other employees on May 15. The union meetings have contin-
ued since May 15. Attendance continued to grow at the union
meetings until after the Memorial Day weekend shutdown of
the Center. After the shutdown attendance dropped off.
Patrick Bogart identified a notice he posted on the break
room bulletin board in the second or third week of May (R.
Exh. 16). The reason for its posting was to clean up the board,
which was looking trashy. He wanted the bulletin board to
look clean and include only material that was current.
Respondent posted a May 23 notice on the front bulletin
board about use of the copying machine and posting of notices.
The notice said that the copy machine was for Gallup use only
and that personal notices could not be posted without a supervi-
sor’s approval. Before that it was commonplace for employees
to use the copy machine for personal and nonbusiness matters.
Lead Supervisor Patrick Bogart admitted that he posted a copy
of news on May 25 that included a reference to the use of the
copy machine (R. Exh. 14), but Bogart denied that represented
5 Malkus was able to recall the exact time because he noted when he
closed down his computer after being paged and when he started on the
computer after the meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
a change of policy. He testified that Respondent’s Exhibt 15
had been posted above the copy machine from before imple-
mentation of the new policy manual. Bogart testified that on all
occasions when employees asked him to use the copy machine
for personal reasons, he denied their requests. Bogart denied
that he ever denied a request to post something on the break
room bulletin board. He recalled that on one or two occasions
he called in employees after learning they had used the copy
machine for personal reasons, and told those employees they
could not do that. Sometimes party invitations would be cop-
ied on the machine and dropped off at employees’ desks. Peo-
ple would also post things on their cubicles. Lead Supervisor
Bogart admitted that employees posted materials in their cubi-
cles before introduction of the new policy manual. Those in-
cluded newspaper articles about the U.S. presidential election
campaign. There were materials posted by employees in the
break room bulletin board and there was no requirement that an
employee needed a supervisor’s permission to post any of those
matters. Before the May 23 notice, employees solicited and
distributed literature for nonwork related matters. Malkus
openly campaigned for the Green Party Presidential candidate
in view of supervisors and nothing was said to him. He even
solicited Supervisor Nancy Moses. Moses was ineligible to
sign a petition for the Green Party candidate because she had
voted in the Democratic or Republican elections, and Malkus
asked if it was okay if he solicited other employees. Moses
said that it was no problem. There was no prohibition against
posting for nonbusiness matters and all types of things were
posted on all the posting areas. Those included ads for cars,
candy bars, Girl Scout cookies, and others. Patrick Bogart
testified that he did enforce a no-distribution rule before May
2000. In 1999 he received a complaint that employee Dayana
Sanabria had been passing out a quiz on the work floor. Bogart
told Sanabria that it was not appropriate for her to distribute
nonworking material at work. On an earlier occasion he was
told that Tracy Malasko was passing out party invitations and
that she had used the copy machine. Bogart told Malasko that
she could not do that. On another occasion Cory Barrow
passed out materials and may have used the copy machine.
Bogart told Barrow that he could not do that and he told Bar-
row to pick up the materials that he had already passed out.
Bogart testified that the 1998 policies (R. Exh. 40) regarding
use of computers and the Internet are no different that the poli-
cies contained in the manual effective May 29, 2000.
Brent Malkus testified that before May 23 he made copies
for personal use even in open view of supervisors and the only
thing said was to the effect of don’t abuse the privilege of using
the copy machine. No one had ever said that employees were
prohibited from personal use of the copy machine. Adam
Fischer noticed that after May 23 postings on the front bulletin
board continued to include the menus from Ann’s Kitchen and
the ads for the Disney’s Magic Kingdom. Fischer mentioned
the Disney’s ad to Patrick Bogart on June 6 but the ads were
still there the first week in July.
Patrick Bogart testified the Disney material was posted be-
cause it came from one of Respondent’s clients (i.e., Disney),
which it had received from its corporate headquarters. The
Sears materials were also provided by a client—Sears. As to
some of the other postings the Center had a number of different
committees. One was called a community builders committee,
which used contributions from employees for community af-
fairs including community theater. In the case of community
theater the community builders committee purchased tickets for
the community theater, which were available free to employees.
By that means the committee helped both employees and the
community theater. As to news articles, Respondent provided a
small incentive to employees for bringing in articles that men-
tioned Gallup. Only news articles that mentioned Gallup were
posted according to Bogart.
William Lewandoski,6 Sandra Griffin, and Shannon Mouser
testified that the employees were scheduled to attend a forum7
around 6 p.m. on May 25. The forum was canceled around
5:15 p.m. and around 5:30 p.m. the computers went down.
Around 5:45 p.m. all employees were told to leave the building
and that each one of them would be paid for the entire time
each was scheduled to work that day. That had never happened
before. The employees had never been told to leave and that
they would be paid for the full scheduled time. Routinely,
when the computers went down, the employees were told to
wait and then were paid for that part of the time they waited for
the computers.8 After the announcement on May 25, managers
came out and directed the evacuation of the employees. Sharon
Warner asked Patrick Bogart why they didn’t go ahead and
hold the forum. Bogart replied no because they were leaving
the building. Lewandoski and other employees returned to the
Center the next day expecting to work but the Center continued
to be shut down. There was a notice posted on the Center door.
The employees returned for work on Tuesday (May 30) after
the Memorial Day holiday and a new interviewing manual (GC
Exh. 5) was on each employee’s desk.
Adam Fischer and several other union organizing committee
members met at the Center, May 26, 2000, to speak to cowork-
ers about the ongoing union campaign. When Fischer arrived
he saw a notice on the door to the Center (GC Exh. 3). Fischer
then spoke with coworkers and distributed two pieces of union
literature. He taped a copy of each piece of literature next to
the elevator on the first floor. He left between 5–6 p.m..
Fischer returned to the Center on May 27. He noticed the two
pieces of literature he had posted near the elevator had been
removed so he posted two more. He also distributed union
literature that day. He next returned on May 30 when the Cen-
ter reopened for business. There was a memo9 on the front

6 Lewandoski has worked for Respondent for 3-½ years.
7 Meetings of employees conducted by management.
8 The Center had closed on earlier occasions such as for holidays and
because of computer problems. Routinely the employees were told to
“hang tight” while they tried to bring the computers back up. That
lasted from 15 to 45 minutes.
9 The memo stated:
INTEROFFICE MEMORANDUM
TO: OPERATIONS
SUBJECT: AUSTIN INTERVIEWING CENTER
DATE: MAY 26, 2000
Last night a blip occurred on the system that caused all inter-
viewing centers to go down momentarily. Although most centers
were back on line within minutes, the Austin Interviewing Center
GALLUP, INC. 371
door regarding why the Center had closed from May 26–30,
2000. That notice was posted when Fischer arrived at 4 p.m.
but, it had been removed when he left for dinner around 6 p.m..
It was reposted on June 9 along with a memo of questions and
answers from a June 6 forum. The employees were given a
new rulebook for interviewers on May 30 (GC Exh. 5). Before
the new rule book, employees were permitted to make audio
recordings in the workplace; to use specific computers at the
Center for internet and e-mail for nonbusiness purposes; to
engage in posting and solicitation of nonbusiness related mat-
ters without it being approved by a supervisor; and there was no
rule against offering another employee something that em-
ployee had previously declined.
Sharon Warner distributed antiunion leaflets after Respon-
dent distributed the new manuals on May 30. Warner went
from desk to desk in the work area passing out antiunion items.
The items included buttons that said “Union No” with a check.
Warner asked employees to take the buttons and wear them to a
mandatory forum10 that night to show solidarity against the
Union. Warner was also asking for money to cover the cost of
the buttons. Warner testified but she did not deny that she had
gone around in the work area distributing antiunion materials.
Bogart identified Respondent’s Exhibit 71 as an employee
corrective action form awarded to Brent Malkus on May 31,
2000, after Sharon Warner reported that Malkus was raising his
finger to the intercom as Bogart was making announcements.
Malkus denied to Bogart that he had been making the alleged
gestures. Sharon Warner testified that she saw Brent Markus
raise his middle finger in a defamatory sign in the direction of
the intercom as Patrick Bogart was making an announcement.
She reported that incident to Bogart.
Fischer distributed union literature outside the Center on
June 2. Supervisor Viet Nguyen talked with Fischer in the
Center. He told Fischer that he had checked with other super-
visors and that it was okay to distribute literature outside but
not inside the building where the Center was located. Nguyen
testified about his June 2 conversation with Fischer. Nguyen
phoned another supervisor and then told Fischer that he could
pass out flyers outside the building but he could not pass them
out in the common areas inside the building. Nguyen testified
that he told Fischer that he could pass out flyers in the break-
room. On June 6 there was a fax posted on the doors from the
front and back into the Center (GC Exh. 2).11 Fischer went to

was not brought back up. The Austin Interviewing Center will be
closed for the weekend and will reopen on Tuesday, May 30, 2000.
Interviewers will be paid their hourly average for those hours that
they were scheduled over the weekend. Trackers will be paid their
hourly average based on the number of hours they had remaining
for the week.
We have been proactively working on putting our policies and
procedures in writing over the last year. Quite candidly, we had
heard rumblings of a union organizing campaign and wanted to
have all of our policies and procedures in writing. Therefore, the
Austin Interviewing Center will remain closed until Tuesday, May
30, 2000, to give us the time necessary to assemble our policies in
writing and have them in place nationwide effective Monday, May
29, 2000.
10 A meeting of employees called by Respondent.
11 The fax stated:
Supervisor Nancy Moses and asked her where it was permissi-
ble to distribute nonbusiness literature. Moses said it could be
distributed only in the breakroom. He also talked to Patrick
Bogart that day in the break room. Fischer along with Stephen
Nelson, then Ariel Colman and Shannon Mouser, was handing
out union literature in the break room between 4–4:30 p.m.
Sandra Griffin and Kristal Cain were also passing out union
literature. Shannon Mouser had not actually distributed any
literature. She was scheduled to relieve Ariel Colman and
Adam Fischer distributing the union literature. Sandra Griffin,
Kristal Cain, and Ariel Colman testified that they were distrib-
uting union literature as well as Adam Fischer and Beth Gos-
nell. Patrick Bogart came up and asked them to come into his
office. Bogart was angry and pointed at Mouser and said that
he had three people in the last 5 minutes complain that they
were harassing them. Bogart said that in the rule book if some-
body said they’re not interested, it would constitute harassment
to approach that employee again. Mouser asked how she would
know if the particular employee had been approached and Bo-
gart said that was for her to find out. She asked Bogart for a
list of employees so they could go over the list and make sure
not to contact anyone a second time but Bogart said no list
would be given to the union committee. Bogart said they had
been accused of verbal harassment because they had passed
Erma some union literature and Erma stated that if she had
known it was union literature she would not have taken it.
Bogart said they shouldn’t have been passing out literature in
the front because that was a working area. The employees
argued that it was not a working area because employees were
expected to read the bulletin board on their own time. Adam
Fischer said they did not want to interfere with the Center’s
business and they would comply with its rules.
Late on June 6, around 6 p.m. Fischer and Ariel Colman
spoke to Bogart in Bogart’s office. Fischer pointed out that
posting had been permitted such as the Disney’s ads on the
front bulletin board and Bogart said that he would look into it.
Fischer and Colman complained about abusive conduct includ-
ing threats to union committee people from Sharon Warner.
Also on June 6, Kristal Cain saw employee Sharon Warner
going throughout the workroom selling antiunion buttons.
Sharon Warner testified that she received two verbal warnings
on June 6 (R. Exhs. 87–88) over confrontations regarding the
Union with Colman and Fischer. After Ariel Colman’s meeting
with Patrick Bogart on June 6, he and Adam Fischer went to
Bogart’s office to discuss other employees distributing litera-
ture in the workplace. They filed a complaint over Sharon
Warner distributing antiunion buttons in the workplace but
nothing happened regarding the complaint. Bogart testified
that he did not see Sharon Warner soliciting antiunion materials

NOTICE OF BUILDING POLICY
Please be advised that building policy for one La Costa Office
Building strictly prohibits soliciting of any nature. This policy
would include handing out or posting handbills, flyers, or other
materials, or direct solicitation to individuals, anywhere on the
premises inside or outside the building. “No Solicitation” signage
is posted on the premises. Failure to comply with this policy con-
stitutes trespassing and is subject to penalties provided therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
and he denied that either Ariel Colman or any other employee,
complained to him about Sharon Warner soliciting antiunion
materials.
In mid-June while Coleman was handing a piece of literature
to Stephen Nelson near Shannon Mouser’s desk, Patrick Bogart
told them they were in violation of the work rules. Nelson told
Bogart that he had requested the literature and Bogart said that
was still a violation of the rules and they would have to do it in
the breakroom. Before the new rule book issued, employees
were permitted to exchange papers on the workroom floor.
Paula Boyd is the senior property manager for USAA.
USAA is the real estate lessor to Respondent. Patrick Bogart
phoned her on June 6 and asked if the building had a policy
against soliciting. Boyd told him they had such a policy and
that soliciting involving putting flyers under windshields of
cars in the parking lots or distributing literature on the property,
selling goods and produce. Bogart asked if Boyd could type up
something to the effect, so she did and faxed it to Bogart. Boyd
asked what this was about and Bogart replied that he did not
want to get into that. Boyd faxed a statement involving the
solicitation rule to Bogart (GC Exh. 2). Afterward other ten-
ants in the building phoned Boyd and complained that people
were congregating outside the building and passing out leaflets.
Boyd went out to the building and saw that the notices she had
faxed to Bogart were taped to the entry doors to the building.
Boyd removed those notices and threw them away. She ex-
plained that she had not mailed General Counsel’s Exhibit 2 to
Bogart with the intent they be posted on the building entrances
and that a posting by Respondent should have been limited to
their own rented spaces. Bogart had actually violated a provi-
sion of Respondent’s lease agreement by posting General
Counsel’s Exhibit 2 in common areas of the building.
Adam Fischer and Brent Malkus, testified about an incident
with Supervisor Viet Nguyen at the Center on June 9. Brent
Malkus, along with Karen Frame and Adam Fischer, were dis-
tributing literature in the reception area near the front bulletin
board. Deann, the receptionist, was working at her desk about
10 feet away. Viet Nguyen approached and said they were not
allowed to talk to people and distribute literature. Malkus re-
plied they had a federally protected right to do that. Malkus
said that he would not be insubordinate and would follow or-
ders but he would consider filing charges. Nguyen left saying
he would be right back. When Nguyen returned he told them
they could talk to people but they could not distribute literature.
Viet Nguyen testified the he did tell Malkus, Fischer, Cher
Carmody, and Deann Wootten that they could not pass out
flyers in the area in the vicinity of Deann Wootten’s desk but
that they could talk in that area. On June 9 William Lewan-
doski passed out and posted copies of a letter to coworkers
about the Union. Nancy Moses had approved the letter. How-
ever, Moses came up to him and said that he could not pass out
the letter except in the breakroom and gave him a verbal warn-
ing (R. Exh. 22). Employees were permitted to pass out mate-
rials on the workroom floor before the new manual was issued
on May 30.
In mid-June Shannon Mouser was present when Steve Nel-
son asked Ariel Colman for a copy of union literature that Col-
man had taken from Mouser’s desk. Bogart came up and said
they could not do that there. Nelson told Bogart that he had
asked for the literature and Bogart said that it did not matter
whether he asked or not, and that could only be done in the
break room.
On June 25 after Adam Fischer came to Kristal Cain’s work-
station and gave her some literature that she had requested,
Patrick Bogart came up and told them they were going to have
to wait until they were in the break room before exchanging
any nonwork-related material.12 Cain told Bogart that she had
asked for that material and that Fischer was not soliciting but
Bogart said they would still have to wait until they were in the
break room. Adam Fischer, along with Kristal Cain and Julie
Consolvis, talked with Bogart in Kristal’s cubicle on June 25.
Fischer was handing out a union committee newsletter and
Bogart said that he could pass out that material only in the
break room. Fischer asked Bogart if that applied to all
nonwork related material and asked Kristal for a copy of the
video “The Matrix,” which was on her desk. Bogart just re-
peated that they were not permitted to distribute nonworking
materials in working areas. Nancy (Moses) Arredondo identi-
fied Respondent’s Exhibit 84 as an incident report she issued
Andy Lewandoski on June 30 because he was distributing un-
ion literature on the floor. She testified the Lewandoski asked
her to initial a letter that he was going to post on the bulletin
board and she subsequently saw him passing out the letter in
the work area. She told him he would have to pick up all that
he had passed out and that he would have to go to the break
room.
Respondent called Gisela Uria-Ruiz as its first witness. She
is director of executive and language interviewing and is lo-
cated at Respondent’s Houston North office. Uria-Ruiz was the
Respondent’s representative during an unfair labor practice
hearing in Case 16–CA–19898, et al. She prepared a memo on
May 27, 1999, that diluted some prior work policies. The pre-
May 1999 policy strictly prohibited distribution of anything on
the interview floor without permission. The May 27, 1999
memo came about because a prounion employee insisted she
had a right to distribute literature during the union organizing
campaign there in Houston, because a precedent had been set
for such distribution. During the existence of that 1999 diluted
policy, production declined. For that reason, consideration was
given to renewing the more restrictive rules. However, because
of ongoing unfair labor practice litigation regarding the Hous-
ton office, the new policy manual (GC Exh. 5) was not imple-
mented at the Houston North office in May 2000 when it was
implemented in Austin. At the conclusion of the Houston un-
fair labor practice litigation the manual was implemented at
Houston.
Ken Anderson is Respondent’s associate counsel. He testi-
fied that the Internet and E–Mail policy contained in General
Counsel’s Exhibit 5 is not a new policy. Instead, as shown in
Respondent’s Exhibit 40, that was Respondent’s systemwide
policy on May 14, 1998.13 Anderson developed General Coun-

12 Bogart identified R. Exh. 20 as a corrective action report he
awarded Fischer for passing literature to Kristal Cain at her cubicle.
13 The May 1998 policy was referred to as the January 1998 manual
(R. Exh. 40).
GALLUP, INC. 373
sel’s Exhibit 5 and his work included use of softwear that he
ordered on June 1, 1999 (R. Exh. 42). The new manual had
been discussed before he ordered the softwear. He testified
about discussions in April and May 1999. Anderson added
provisions to the new manual including prohibition against
taping any conversations with a supervisor, meetings, forums,
or other activities, in part because of problems Respondent
experienced in Houston during the union organizing drive.
Also there was an ongoing title VII case in Houston,14 where
employees taped telephone conversations and face-to-face
meetings.15 Additionally, the restrictions were included out of
concern for confidentiality of clients and respondents.16 Ander-
son testified that General Counsel’s Exhibit 5 no-
solicitation/no-distribution policy came directly out of its
“Knowledge Point” softwear and in consideration of tensions
arising due to the union organizing campaign at Houston.
Anderson testified there were problems of harassment and that
production had dropped. He also considered a memo from
Respondent’s chief operating officer referred to as clean sweep
(R. Exh. 45). Additionally, Anderson testified that the policy
prohibiting anyone being solicited after expressing disinterest
has been rescinded and all reprimands for that infraction have
been rescinded as well.
Patrick Bogart testified that the only restriction against post-
ing in employees’ cubicles was those to insure that inappropri-
ate matters such as “half-clothed people pictures” were not
posted. That was the policy before the new manual and it con-
tinues to be the policy.
Viet Nguyen testified that he has received a lot of questions
about whether employees could pass out materials in the office
areas or breakrooms and he has told them they could do that
only in the breakroom. That happened about 3 weeks before
the December 19 hearing. He testified that he has not denied
anyone’s request to put up a personal notice on the breakroom
bulletin board. Nguyen testified that he has seen antiunion
buttons but no one has complained to him about those buttons
being distributed on the workroom floor. Viet Nguyen testified
that he has not seen anyone distributing antiunion buttons on
the work floor. Nancy (Moses) Arredondo denied seeing any-
one soliciting or purchasing antiunion materials in work areas.
She testified that she strictly enforced the rules contained in the
manual effective May 2000. Ryan Schuchart testified that he
has seen antiunion buttons but he denied that he has seen or
received a complaint that those buttons were being passed out
in work areas.
Dayana (Sanabria) Moore testified that she distributed mate-
rial related to her schoolwork but unrelated to Respondent’s
work. Patrick Bogart came to her and directed her to pick up
everything she had passed out. She also posted a notice related
to her volleyball team on the breakroom bulletin board without
supervisory permission in late July or early August 2000, and
the notice was removed. Patrick Bogart verbally warned Cath-

14 The title VII case involved Houston’s Bellaire facility rather than
Houston North.
15 Those recordings occurred around March–June 1999.
16 The term respondent is used to identify a person answering one of
Respondent’s telephone surveys.
erine Bradley for selling Avon products at her workstation in
July 2000. Ryan Schuchart also cautioned her because she
delivered a card regarding her nonprofit theater organization to
another employee in the work area. Schuchart told her that she
could not distribute materials in the working area. Bradley had
been at the other employee’s seat discussing the theater and left
to pick up some material for the employee. Bradley testified
that she is limited to posting for the community theater on the
breakroom bulletin board. Sharon Warner received two verbal
warnings on June 6 (R. Exhs. 87–88) over confrontations re-
garding the Union with Colman and Fischer. She received a
written warning (R. Exh. 75) on August 2, 2000. She asked
Patrick Bogart and he told her she would be fired if she re-
ceived another warning. In another incident, Warner saw Brent
Markus raise his middle finger in a defamatory sign in the di-
rection of the intercom as Patrick Bogart was making an an-
nouncement. She reported that incident to Bogart.
Credibility
I was impressed with the demeanor of Adam Fischer. His
testimony appeared truthful when considered in light of the
entire record. I credit his testimony. I was impressed with the
demeanor of Brent Malkus, Paula Boyd, William Lewandoski,
Sandra Griffin, Kristal Cain, Ariel Coleman, and Shannon
Mouser. I credit Malkus’ testimony that he contacted the Un-
ion on February 29 and regarding his 98-minute conference
with Patrick Bogart on March 6. That testimony is not in dis-
pute. I credit the evidence regarding notices and the interview-
ing policies and procedure manual posted or issued by Respon-
dent during May 2000. That evidence is not in dispute. I find
that the testimony of Bogart, Nguyen, Dayana Moore, Ryan
Schuchart, Catherine Bradley, and Sharon Warner was not
credible to the extent it tended to show that Respondent consis-
tently enforced its policies both before and after it learned of its
employees’ union activities. The full record shows that was not
the case. Before the union activities and in some instances, as
late as May, the employees openly posted materials on the front
bulletin board and talked and exchanged nonwork-related mate-
rials at their work areas, without interference from supervision.
Moreover, during those times employees were permitted to use
the copying machine for personal matters with only occasional
comments from supervisors that the employees should not
abuse their privileges. I credit the testimony showing that em-
ployees were not stopped from distributing antiunion materials
in the work areas after Respondent issued its May 29 manual.
Sharon Warner did not deny that she engaged in that activity.
Findings
There was evidence to the effect that Respondent had in
place policies and procedures before 1999, which were similar
to those contained in its May 29, 2000, ”Interviewing Policies
& Procedures Manual.” However, I credit evidence including
that of employees Fischer, Malkus, Lewandoski, Griffin, Cain,
Coleman, Mouser, as well as that of Gisela Uria-Ruiz17 show-
ing that pre-1999 policies were relaxed or nonexistent until
May 2000.
17 Uria-Ruiz testified specifically about the policy at Houston North.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
A. Before May 25, 2000
As shown above Respondent posted a notice dated May 26,
2000, showing that it had heard rumors of a union organizing
campaign. Patrick Bogart testified that he first learned about
the union campaign from two employees around May 20. The
evidence does not show that Respondent knew of the union
activities before May 20. As shown above Brent Malkus first
contacted the Union on February 29. Thereafter, Malkus was
called into a 98-minute closed door meeting with Patrick Bo-
gart regarding Bogart having heard that Malkus was saying
some “very negative things.” However, nothing was said about
the Union at any time during that meeting. That meeting failed
to prove that Respondent was aware of its employees’ union
activities.
The evidence illustrated Respondent’s practices before it
learned of the Union on May 20. Brent Malkus testified that
before that date he made copies for personal use in view of
supervisors. He was told on occasion to not abuse his privilege
of using the copy machine but no one stopped him from copy-
ing personal material. Adam Fischer testified that the front
bulletin board was used for personal as well as business matters
before May 30. Several nonbusiness matters including menus
from Ann’s Kitchen, and ads for Disney’s Magic Kingdom, and
Sears appeared on the front bulletin board both before and after
May 30. Patrick Bogart did not dispute the testimony regarding
Disney and Sears but he testified that was posted because Dis-
ney and Sears were clients. Bogart admitted that the commu-
nity builders committee placed notices on the bulletin board
regarding a community theater. Notices were posted on both
the front and the breakroom bulletin boards for indefinite peri-
ods and employees were not required to seek approval from a
supervisor. Employees freely posted different materials in their
personal work cubicles without approval by a supervisor. As
shown above, the evidence also illustrated that employees were
permitted to use computers and the Internet and E–Mail without
approval. Employees openly solicited and distributed material
that was not related to work in work areas, in the area near the
front bulletin board, and in the breakroom. For example, Brent
Malkus openly solicited for the Green Party U.S. presidential
candidate and was told by Supervisor Moses that it was all right
to do that in the work area. I am also mindful that Patrick Bo-
gart testified that he cautioned Dayana Sanabria, Tracy
Malasko, and Cory Barrow against solicitation and, on at least
one occasion, against using the copy machine. However, the
credited testimony and the overall record, illustrated that Re-
spondent’s practice immediately before May 20 was one of
leniency and many work rules, to the extent they may have
existed, were routinely ignored by Respondent’s supervision.
Testimony also illustrated that the practice before May 25,
was to wait for the computers to restart at any time the com-
puters went down and that employees were paid only for the
time spent waiting for the computers to come up as well as the
time actually working. Employees were never told to leave the
premises because of computers going down and they were
never told they would be paid for days off while the computer
was down.
B. Near and After May 25
Respondent posted a May 23 notice regarding copy ma-
chines and postings. On May 25 Respondent evacuated its
employees and closed its Center. A notice dated May 26 (GC
Exh. 4) stated that the Center was not reopened and would not
reopen until May 30, because Respondent was working to put
its policies and procedures in writing and because of rumors of
a union organizing campaign.
C. The Alleged 8(a)(1) violations
1. Respondent posted and promulgated a rule prohibiting per-
sonal use of the copy machine on May 23
Respondent posted a notice on the front bulletin board on
May 23 regarding use of the copying machine and other things.
The notice said that the copy machine was for Gallup use only.
Patrick Bogart testified that he posted the notice (R. Exh. 14)
on May 25, but he denied that notice represented a change of
policy. Bogart testified that another notice (R. Exh. 15) had
been posted above the copy machine from before implementa-
tion of the new policy manual. He testified that on all occa-
sions when employees asked him to use the copy machine for
personal reasons, he denied their requests. He recalled that on
one or two occasions he called in employees after learning they
had used the copy machine for personal reasons, and told those
employees they could not do that. Sometimes party invitations
would be copied on the machine and dropped off at employees’
desks.
I am convinced that employees occasionally used Respon-
dent’s copy machine for personal matters before May 23.
There was a posted rule against personal use of the machine
before the union campaign. However, I am convinced that
credible evidence showed that Respondent’s supervisors tended
to overlook moderate personal use of the copier until the start
of the union organizing campaign. The credible evidence
shows that when it came to a supervisor’s attention that some-
one was using the copy machine for personal reasons, the su-
pervisor occasionally advised the employee to not abuse the
privilege. I find that Respondent moved to restrict its permitted
moderate use of the copy machine after it learned of its em-
ployees’ union activities, and that activity tends to restrict, re-
strain, and coerce employees in their Section 7 rights and con-
stitutes a violation of Section 8(a)(1) of the Act.
2. Respondent posted the rule: “Postings of a personal nature
not approved by a manager can only be posted on the break
room board,” on May 23
The May 23 notice (R. Exh. 14), included reference to post-
ing of notices as well as use of the copy machine. The notice
said that personal notices could not be posted unless on the
break room bulletin board. Notices on the breakroom bulletin
board were required to include the date and a signed approval
by a manager. Patrick Bogart denied that he ever denied a re-
quest to post something on the breakroom bulletin board. Peo-
ple would also post things on their cubicles. Lead Supervisor
Bogart admitted that employees posted materials in their cubi-
cles before introduction of the new policy manual. Those in-
cluded newspaper articles about the 2000 U.S. presidential
election campaign. There were materials posted by employees
GALLUP, INC. 375
in the break room bulletin board and there was no requirement
that an employee needed a supervisor’s permission to post any
of those matters. There was no prohibition against postings for
nonbusiness matters and all types of things were posted on all
the posting areas. Those included ads for cars, candy bars, Girl
Scout cookies, and others. Patrick Bogart testified that he did
enforce a no-distribution rule before May 2000. In 1999 he
received a complaint that employee Dayana Sanabria had been
passing out a quiz on the work floor. Bogart told Sanabria that
it was not appropriate for her to distribute nonworking material
at work. On an earlier occasion he was told that Tracy Malasko
was passing out party invitations and that she had used the copy
machine. Bogart told Malasko that she could not do that. On
another occasion Cory Barrow passed out materials and may
have used the copy machine. Bogart told Barrow that he could
not do that and he told Barrow to pick up the materials that he
had already passed out. Bogart testified that the 1998 policies
(R. Exh. 40) regarding use of computers and the Internet are no
different that the policies contained in the manual effective
May 29, 2000.
As shown above, I do not credit Bogart’s testimony to the
extent it would show that Respondent consistently enforced a
no-solicitation/no-distribution rule before May 23. Bogart
testified to the effect that he occasionally enforced a no solicita-
tion, no distribution rule in the work area,18 but as shown herein
there was credited evidence that Respondent instituted a new
policy immediately after learning of the union campaign and
that on occasion after May 30 it ignored an employee soliciting
and distributing antiunion buttons in the work area. The cred-
ited record showed that Respondent’s routine practice immedi-
ately before learning of the union campaign was to overlook
solicitation and distribution in all areas of the Center especially
when no one complained about the activity. As to Bogart’s
testimony that 1998 policies did not differ from those in the
May 29 manual, I find that evidence does not go to the material
point. The material question is what were Respondent’s estab-
lished policies immediately before the union organizing cam-
paign and before Respondent made its late May announcements
regarding its policies. The evidence proved that Respondent’s
policy at that time included solicitation and distribution in all
areas of the Center and that employees were permitted to post
personal materials on all the bulletin boards and in their cubi-
cles. I find that Respondent unlawfully changed its notice post-
ing policy on May 23 in violation of Section 8(a)(1).

18 Respondent pointed to R. Exh. 74, 85, and 86 (dated July 6, June
30 and 12, 2000), plus evidence that employee Sandy Kesaras was told
that she had to post Christmas card solicitations in the breakroom and
Steven Nelson was told that he would have to post a notice seeking a
roommate in the breakroom.
3. Respondent issued a new Interviewing policies and proce-
dures manual on May 29, which implemented changes in terms
and conditions of employment19
Respondent issued a new manual on May 29 (GC Exh. 5).
The manual included a prohibition against taping by audio or
video activities at work; a prohibition against solicitation and
distribution in the workplace at any time; a prohibition against
posting nonbusiness materials in working areas and common
areas of the building and a directive limiting postings of
nonbusiness materials to the break room bulletin board pro-
vided the notice was dated and had been approved by a man-
ager and providing the notice would be removed after one
month; a prohibition against using Internet for anything other
than business; and that E–mail may not be used to solicit for
nonbusiness matters.20 Respondent announced through a notice
dated May 26 (GC Exh. 4), that the new manual was being
prepared to issue on May 30 because of rumors of union orga-
nizing activity at the Austin Center. As shown above, I have
credited testimony showing Respondent’s policy before May
2000, was to permit employees to use tape recordings in the
workplace; to solicit and distribute nonbusiness materials in the
workplace; to post nonbusiness materials in the workplace in-
cluding in employees’ cubicles and on bulletin boards other
than the bulletin board in the break room; that notices were not
required to be dated or approved by a manager and that notices
were not removed from a bulletin board at the end on 1
month.21 The General Counsel argued that Respondent’s ac-
tions constitute unfair labor practices. (NLRB v. Roney Plaza
Apartments, 597 F.2d 1046 (5th Cir. 1979); Eaton Corp., 302
NLRB 410, 411 (1991); Cannondale Corp., 310 NLRB 845
(1993); Montgomery Ward & Co., 220 NLRB 373, 374 (1975),
enfd. as modified 554 F.2d 996 (10th Cir. 1977); Predicasts,
Inc., 270 NLRB 1117, 1119 (1984); and Permian Corp., 189
NLRB 860 (1971), enfd. 457 F.2d 512 (5th Cir. 1972).) Re-
spondent argued that it started preparation of the manual long
before the union organizing campaign; that its policies were not
new; and that the manual was prepared for business reasons.
Ken Anderson testified that Respondent was at work preparing
a new manual before the union organizing campaign started.
However, the evidence shows that the alleged unlawful policies
were not instituted until after Respondent learned of the union
19 Although the General Counsel argued that Respondent engaged in
an unfair labor practice by issuing its manual on May 29, I have found
and considered that Respondent engaged in questionable actions by
including certain rules in that manual as noted here. I do not find that
the entire manual was unlawful.
20 As to Respondent’s policy regarding the Internet and e–mail,
Adam Fischer credibly testified there were certain computers at the
Center that employees were permitted to use for nonbusiness matters
and the employees were permitted to use the Internet and e–mail on
those computers.
21 As shown above Patrick Bogart testified that he posted R. Exh. 16
regarding posting notices on designated bulletin boards and that the
notices would be removed 1 month from the date of posting, during the
second or third week of May 2000. Due to the vagueness as to date plus
demeanor and conflicts between Bogart and other credited evidence, I
do not credit his testimony to the extent that it would show R. Exh. 16
was posted before Bogart learned of the employees’ union activities on
May 20.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
campaign. The alleged unlawful policies differed from the
policies in practice immediately before the union campaign
started. Even though Respondent may have at one time, en-
forced other, stricter policies that is of no importance if the
evidence shows that the policies at the beginning of the union
activity were different. As shown above, the credited evidence
showed that Respondent permitted solicitation in all areas of
the Center, including the work areas, immediately before the
union campaign. As shown above, among other matters, I
credit the testimony of Brent Malkus that Supervisor Nancy
Moses allowed him to campaign for the Green Party U.S.
presidential candidate in the work area. The credited evidence
also showed that employees posted personal notices on all Re-
spondent’s bulletin boards immediately before the union cam-
paign. Respondent’s argued that it implemented its May 2000
manual because of legitimate business reasons and that it would
have issued the manual in the absence of union activities.
The evidence in that regard included testimony of Respon-
dent’s associate counsel, Ken Anderson, to the effect that work
started on the manual long before the 2000 union organizing
campaign in Austin, and testimony of Respondent’s director of
executive and language at Houston North office, Gisela Uria-
Ruiz, to the effect that production dropped at the Houston
North office during a 1999 union organizing campaign. Uria-
Ruiz attributed that drop in production to relaxed rules includ-
ing Respondent’s solicitation and distribution policy. Addi-
tionally, she testified about the use of tape recordings made by
employees at Houston and used during litigation at an unfair
labor practice hearing and a title VII hearing.
Respondent’s argument suffers in several respects. As to the
tape recordings, I am not impressed that problems generated
during litigation qualify as the type of business reason that
would enable and employer to interfere with, restrain, or coerce
protected activity. Of course, there may be a showing of added
costs generated by losses during litigation but that does not
appear to be the type of business reason the Board and courts
have considered in the earlier cases. Moreover, no evidence
was offered to show that changes were considered at the Austin
Center before Respondent learned of its employees’ union ac-
tivities on May 20. Within 3 days thereafter, Respondent
changed its approach to the use of its copy machine and posting
personal notices. There was no evidence showing that anything
occurred during those 3 days to justify those changes for busi-
ness purposes. Then from May 29 Respondent enforced its
new manual rules but, as shown here, enforcement took a dif-
ferent turn when union activity was involved. Employees solic-
iting for the Union including, for example, William Lewan-
doski, were stopped, told to pick up everything that had been
distributed, and warned, while employees opposing the Union
including, for example, Sharon Warner, were not stopped and
were not required to go back and retrieve the antiunion materi-
als. There was evidence that Warner, like Lewandoski, re-
ceived a warning. Additionally, I note that the testimony by
Gisela Uria-Ruiz failed to show that Respondent determined
that stricter rules would resolve the problems noted during the
1999 union organizing campaign at Houston North. Indeed her
testimony appeared to show that the relaxed rules became a
problem only because of conflicts between prounion and
antiunion employees. The drop in productivity occurred during
the union campaign. Therefore, to fully realize a business re-
lated benefit from its change in rules, it would appear that only
during a union organizing campaign, would the new rules pre-
vent a drop in production. Additionally, Respondent imple-
mented a rule against employees soliciting any employee that
had previously declined union material. That rule was not in-
cluded in the manual even though Respondent argued that it
constituted harassment. Although the manual addressed har-
assment, it does not defined harassment to include solicitation
of an employee that previously declined similar material. Un-
der those circumstances, I find that the evidence failed to sup-
port Respondent’s claim that it would have instituted all the
rules contained in its May 2000 manual, in the absence of its
Austin employees’ union activities.22 I find that Respondent did
not change its rules and implement its new manual because of
production problems.23 Instead, I find that Respondent engaged
in conduct in violation of Section 8(a)(1) by including the al-
leged unlawful provisions in the May manual.
4. Respondent, by its supervisor, Viet Nguyen, told employees
that distribution of literature inside the building but outside the
Center was not permitted on June 2
Supervisor Viet Nguyen talked with Adam Fischer after
Fischer distributed union literature outside the Center on June 2.
Nguyen told Fischer that he had checked with other supervisors
and that it was okay to distribute literature outside but not inside
the building. Nguyen testified about his June 2 conversation
with Fischer. Nguyen phoned another supervisor and then told
Fischer that he could pass out flyers outside the building but he
could not pass them out in the common areas inside the build-
ing. Nguyen testified that he told Fischer that he could pass out
flyers in the break room.
Before May 20 employees solicited and distributed literature
for nonwork related matters in all areas. For example, I cred-
ited the evidence that Brent Malkus openly campaigned for the
Green party presidential candidate in view of supervisors and
nothing was said to him. He solicited Supervisor Nancy
Moses. Moses was ineligible to sign a petition for the Green
Party candidate because she had voted in the Democratic or
Republican elections, and Malkus asked if it was okay if he
solicited other employees. Moses said that it was no problem.
I find the evidence established that Nguyen did tell employee
Fischer that he could not distribute literature inside the build-
ing. The Center, which constitutes Respondent’s facility, is
only a part of the building. By his directive Nguyen prohibited
Fischer’s distribution in areas outside Respondent’s work areas.
As shown here Patrick Bogart posted a fax that he received
from Respondent’s lessor, USAA Realty, prohibiting solicita-
tion in the building. The action tended to support Nguyen’s
comments. Regardless of the lessor’s policy, the record

22 This is not a situation where I would normally question whether
Respondent would have taken the allegedly unlawful action in the
absence of union activities (Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982)). How-
ever, Respondent raised this issue in its brief.
23 NLRB v. Roney Plaza Apartments, 597 F.2d 1046 (5th Cir. 1979);
Champion International Corp., 303 NLRB 102 (1991).
GALLUP, INC. 377
showed that before the union campaign it was not Respondent’s
practice to prohibit its employees from distributing literature
outside its Center. By doing so in regard to union materials,
Respondent engaged in conduct in violation of Section 8(a)(1)
of the Act.
5. Respondent, by its supervisor, Viet Nguyen, told its em-
ployees that distribution of literature in the front area was not
permitted
On June 9 Brent Malkus, along with Karen Frame and Adam
Fischer, were distributing literature in the reception area near
the front bulletin board. Deann, the receptionist, was working
at her desk about 10 feet away. Viet Nguyen approached and
said they were not allowed to talk to people and distribute lit-
erature. Malkus replied they had a federally protected right to
do that. Malkus said that he would not be insubordinate and
would follow orders but he would consider filing charges.
Nguyen left saying he would be right back. When Nguyen
returned he told them they could talk to people but they could
not distribute literature. Viet Nguyen testified the he did tell
Malkus, Fischer, Cher Carmody, and Deann Wootten that they
could not pass out flyers in the area in the vicinity of Deann
Wootten’s desk but that they could talk in that area.
The full record shows, and I find, that employees were per-
mitted to solicit and distribute materials in the front area near
the bulletin board before the 2000 union organizing campaign.
Nguyen’s orders to Respondent’s employees to forego that
activity in the future does constitute interference with, restraint,
and coercion of the employees Section 7 rights and constitutes
an unfair labor practice.
6. Respondent told its employees that distribution of literature
was permissible only in the breakroom, on June 6. Respondent
told its employee Andy Lewandoski that distribution of literature
on the workroom floor was not permitted on June 9
Nancy Moses came up to William Lewandoski and said that
he could not pass out a letter to coworkers about the Union,
except in the break room and gave him a verbal warning (R.
Exh. 22). Lewandoski had passed out and posted copies of the
letter in the Center on June 9. Nancy Moses had approved the
letter. As shown above, employees were permitted to pass out
materials on the workroom floor before the new manual was
issued on May 30. Nancy (Moses) Arredondo identified
Respondent’s Exhibit 84 as an incident report she issued Andy
Lewandoski on June 30 because he was distributing union lit-
erature on the floor. She testified that Lewandoski asked her to
initial a letter that he was going to post on the bulletin board
and she subsequently saw him passing out the letter in the work
area. She told him he would have to pick up all that he had
passed out and that he would have to go to the break room. I
find that Moses’ action constitutes a change in established pol-
icy because of the union campaign in violation of Section
8(a)(1) of the Act.
7. Respondent, by its supervisor, Patrick Bogart, told its em-
ployees that offering literature to any employee who had previ-
ously declined literature was impermissible, on June 6. Re-
spondent, by its supervisor, Patrick Bogart, told its employees
that distribution of literature in the working areas was imper-
missible and that employees could be charged with harassment
for offering literature to any employee who had previously
declined literature, on June 13
Adam Fischer, along with Stephen Nelson, then Ariel Col-
man and Shannon Mouser, was handing out union literature in
the break room between 4–4:30 p.m. Sandra Griffin and
Kristal Cain were also passing out union literature. Shannon
Mouser had not actually distributed any literature. She was
scheduled to relieve Ariel Colman and Adam Fischer distribut-
ing the union literature. Sandra Griffin, Kristal Cain, and Ariel
Colman testified that they were distributing union literature as
well as Adam Fischer and Beth Gosnell. Patrick Bogart came
up and asked them to come into his office. Bogart was angry
and pointed at Mouser and said that he had three people in the
last 5 minutes complaining that they were harassing them.
Bogart said that in the rulebook if somebody said they’re not
interested, it would constitute harassment to approach that em-
ployee again. Mouser asked how she would know if the par-
ticular employee had been approached and Bogart said that was
for her to find out. She asked Bogart for a list of employees so
they could go over the list and make sure not to contact anyone
a second time but Bogart said no list would be given to the
union committee. Bogart said they had been accused of verbal
harassment because they had passed Erma some union litera-
ture and Erma stated that if she had known it was union litera-
ture she would not have taken it. Bogart said they shouldn’t
have been passing out literature in the front because that was a
working area. The employees argued that it was not a working
area because employees were expected to read the bulletin
board on their own time. Adam Fischer said they did not want
to interfere with the Center’s business and they would comply
with its rules. Respondent raises the question of what would
have been legitimate solicitation and distribution under Re-
spondent’s interpretation of its rules after May 30, but for the
alleged harassment. Bogart defined harassment as offering
union material to someone that was either not interested, as was
the case with “Erma,” or to someone that had previously ex-
pressed disinterest. The effect of such a rule is abolition of all
solicitation and distribution because absent some unusual cir-
cumstances not shown to have existed here, no prounion em-
ployee could be sure that a solicited employee was neither dis-
interested in the union material nor had previously expressed
disinterest to another employee. Moreover, regardless of the
question of harassment, it is clear that Respondent has insti-
tuted a new rule that became effective only upon its learning of
the union organizing campaign. I find that Bogart’s action
constitutes conduct in violation of Section 8(a)(1) of the Act.
8. Respondent, by its supervisor, Patrick Bogart, told its em-
ployees in mid-June that distribution of literature on the work-
room floor was impermissible
In mid-June Shannon Mouser was present when Steve Nel-
son asked Ariel Colman for a copy of the union literature that
Colman had taken from Mouser’s desk. Patrick Bogart came
up and said they could not do that there. Nelson told Bogart
that he had asked for the literature and Bogart said that it did
not matter whether he asked or not, and that could only be done
in the breakroom. On June 25 after Adam Fischer came to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
Kristal Cain’s workstation and gave her some literature that she
had requested, Patrick Bogart came up and told them they were
going to have to wait until they were in the breakroom before
exchanging any nonwork-related material. Cain told Bogart
that she had asked for that material and that Fischer was not
soliciting but Bogart said they would still have to wait until
they were in the breakroom. Adam Fischer, along with Kristal
Cain and Julie Consolvis talked with Bogart in Cain’s cubicle
on June 25. Fischer was handing out a union committee news-
letter and Bogart said that he could pass out that material only
in the break room. Fischer asked Bogart if that applied to all
nonwork related material and asked Kristal for a copy of the
video “The Matrix,” which was on her desk. Bogart just re-
peated that they were not permitted to distribute nonworking
materials in working areas. As shown here, Respondent’s ac-
tions were contrary to the policy it practiced before the 2000
union organizing campaign and the record shows that other
employees were not stopped when distributing antiunion litera-
ture. I find that Respondent engaged in unfair labor practices
by preventing all distribution of materials by prounion employ-
ees in the working area.
9. On June 6 Respondent posted a no solicitation rule from the
building landlord, USAA Realty Company
Paula Boyd is the senior property manager for USAA.
USAA is the real estate lessor to Respondent. Patrick Bogart
phoned her on June 6 and asked if the building had a policy
against soliciting. Boyd told him they had such a policy and
that soliciting involving putting flyers under windshields of
cars in the parking lots or distributing literature on the property,
selling goods and produce. Bogart asked if Boyd could type up
something to the effect, so she did and faxed it to Bogart. Boyd
asked what this was about and Bogart replied that he did not
want to get into that. Boyd faxed a statement involving the
solicitation rule to Bogart (GC Exh. 2). Respondent posted
copies of Boyd’s fax on the doors from the front and back into
the Center (GC Exh. 2) on June 6. Afterward other tenants in
the building phoned Eddie Paula Boyd and complained that
people were congregating outside the building and passing out
leaflets. Boyd went out to the building and saw that the notices
she had faxed to Bogart were taped to the entry doors to the
building. Boyd removed those notices and threw them away.
She explained that she had not mailed General Counsel’s Ex-
hibit 2 to Bogart with the intent they be posted on the building
entrances and that a posting by Respondent should have been
limited to their own rented spaces. Bogart had actually violated
a provision of Respondent’s lease agreement by posting Gen-
eral Counsel’s Exhibit 2 in common areas of the building.
By posting the USAA Realty fax Respondent was advising
its employees that it was prohibiting their solicitation and dis-
tribution of materials including union materials outside the
Center whether inside or outside the building. As shown here
Respondent’s practice before the union campaign was to permit
solicitation and distribution inside its Center. Regardless of
USAA Realty’s practice, Respondent’s action had the tendency
to interfere with, restrain or coerce its employees in the exercise
of rights under Section 7 or the Act and constitutes and unfair
labor practice.
D. The Alleged 8(a)(1) and (3) violations
1. Respondent closed its Center from May 25–29 24
As shown above, the evidence is not in dispute but that Re-
spondent closed its Center after its computers went down on
May 25, 2000. The testimony of the General Counsel’s wit-
nesses Lewandoski, Griffin, and Mouser to the effect that the
normal procedure when the computers went down, was for the
employees to wait at the Center for the computers to come back
up, was not disputed. On those occasions employees were paid
for the time spent waiting for the computers. On May 25 when
the computers went down the employees were rushed out of the
building about 15 minutes later. Before May 25 the employees
had never been sent home when the computers went down and
paid for their time even though the Center was closed. Re-
spondent posted a notice to its employees explaining that after a
May 25 computer blip, most Centers were brought back up but
that the Austin Center was not brought back up; and that the
Center would remain closed until Tuesday, May 30, because of
rumors of a union organizing campaign:25

INTEROFFICE MEMORANDUM
TO: OPERATIONS
SUBJECT: AUSTIN INTERVIEWING CENTER
DATE: MAY 26, 2000
Last night a blip occurred on the system that caused all
interviewing centers to go down momentarily. Although
most centers were back on line within minutes, the Austin
Interviewing Center was not brought back up. The Austin
Interviewing Center will be closed for the weekend and
will reopen on Tuesday, May 30, 2000. Interviewers will
be paid their hourly average for those hours that they were
scheduled over the weekend. Trackers will be paid their
hourly average based on the number of hours they had re-
maining for the week.
We have been proactively working on putting our
policies and procedures in writing over the last year.
Quite candidly, we had heard rumblings of a union orga-
nizing campaign and wanted to have all of our policies and
procedures in writing. Therefore, the Austin Interviewing
Center will remain closed until Tuesday, May 30, 2000, to
give us the time necessary to assemble our policies in writ-
ing and have them in place nationwide effective Monday,
May 29, 2000.

The General Counsel argued that Respondent’s closing its
Center constituted unlawful conduct (General Battery Corp.,
220 NLRB 1078 (1975); and Power, Inc., 311 NLRB 599
(1993), enfd. 40 F.3d 409 (D.C. Cir. 1994)). In consideration
of this allegation I shall consider whether the General Counsel
proved that Respondent was motivated by its employees’ union
activities and its animus against those activities, in taking the

24 The General Counsel stated on the record that it is not seeking a
remedy that includes money. The employees were paid for the time the
Center was closed.
25 The General Counsel argued that this comment constitutes an in-
dependent violation of Sec. 8(a)(1) and I agree. That comment tends to
interfere with, coerce, and restrain employees in the exercise of Sec. 7
rights.
GALLUP, INC. 379
allegedly unlawful action. If I find that was the case, I shall
examine whether Respondent would have closed the Center in
the absence of union activities. (See Manno Electric, 321
NLRB 278, 280 fn. 12 (1996); Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); and NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).). As shown here, Respondent has
demonstrated its animus by its conduct in violation of Section
8(a)(1). Moreover, its memo shows that it was motivated by a
rumor of its employees’ union organizing activities in its deci-
sion to close the facility from May 25.
Respondent offered no credible evidence that it would have
closed the Center in the absence of union activity.26 What it did
offer was evidence that it was working on the revised manual
long before the union activity and that the new manual applied
to all its employees. However, the issue here is not why did
Respondent issue a new manual but why did it close its facility
from May 25 to 30. As shown in its memo, that action was
caused by rumors of union organizing activity. Respondent’s
action is prohibited by Section 8(a)(1) and (3) of the Act. Ob-
viously, an employer tends to interfere with protected rights by
illustrating to its employees that it will close its facility because
of rumors of union activity. Additionally, Respondent’s clos-
ing of the facility effected the terms and conditions of employ-
ment to encourage or discourage membership in any labor or-
ganization. I find that Respondent engaged in unfair labor
practices by closing its Center. As shown above, Respondent
did pay its employees for the time the Center was closed and
the General Counsel does not seek a remedy that includes
money. However, the fact remains that Respondent closed its
facility because of its employees’ union activities and that ac-
tivity is prohibited by Section 8(a)(1) and (3) of the Act.
2. Respondent, by its supervisor, Patrick Bogart, verbally
warned its employee Brent Malkus for making an obscene ges-
ture in the workplace, on May 31
Patrick Bogart admitted that he issued a corrective action re-
port to Brent Malkus on May 31 (R. Exh. 71), after Sharon
Warner reported that Malkus was raising his finger to the inter-
com as Bogart was making announcements. Malkus denied to
Bogart that he had been making the alleged gestures. Sharon
Warner testified that she saw Brent Malkus raise his middle
finger in a defamatory sign in the direction of the intercom as
Patrick Bogart was making an announcement. She reported
that incident to Bogart. In view of the timing of its action, its
knowledge of Malkus’ union activities and its demonstrated
animus I am convinced that the General Counsel proved a
prima facie case. However, I have carefully examined the tes-
timony of Sharon Warner and I find that she was a convincing
witness. Warner was the employee that complained to Respon-

26 Respondent argued, among other things, that the Center was
closed because of computer failure. However, as shown here, the record
evidence including Respondent’s May 26 memo, proved that it was not
Respondent’s practice to close the Center because of computer failure;
that the computer failure on May 25 lasted for only “momentarily”; that
other Centers that experienced the same failure resumed operations
after a brief delay and the Center was closed until May 30 because of
rumors of union organizing activity.
dent about Malkus. Despite my determination that Brent
Malkus was truthful in his testimony, I am not convinced that
he was fully truthful regarding this allegation. The record sup-
ported Respondent’s claim that it routinely warned employees
for similar infractions. Therefore, I find that Respondent
proved it would have warned Malkus in the absence of his un-
ion activities.
3. Respondent violated Section 8(a)(1) and (3) when it warned
its employee Lewandoski for distributing a letter regarding the
Union to employees
On June 9 William Lewandoski passed out and posted copies
of a letter to coworkers about the Union. Nancy Moses had
approved the letter. However, Moses came up to him and said
that he could not pass out the letter except in the break room
and gave him a verbal warning (R. Exh. 22). Employees were
permitted to pass out materials on the workroom floor before
the new manual was issued on May 30. Nancy (Moses) Arre-
dondo identified Respondent’s Exhibit 84 as an incident report
she issued Andy Lewandoski on June 30 because he was dis-
tributing union literature on the floor. She testified the Lewan-
doski asked her to initial a letter that he was going to post on
the bulletin board and she subsequently saw him passing out
the letter in the work area. She told him he would have to pick
up all that he had passed out and that he would have to go to the
breakroom. The record as shown herein, proved that Respon-
dent knew that William Lewandoski supported the Union. That
fact was evident by an examination of the letter he was distrib-
uting on June 9. Moreover, as shown above, I find that Re-
spondent demonstrated animus. As to whether Respondent
would have disciplined Lewandoski in the absence of his union
activities, the evidence showed that the opposite is the case.
Before the union campaign Respondent permitted employees to
engage in the very activity Lewandoski engaged in on June 9
without disciplinary action. I find that Respondent engaged in
conduct in violation of Section 8(a)(1) and (3) by issuing a
verbal warning to William Lewandoski.
CONCLUSIONS OF LAW
1. Gallup, Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL–CIO–CLC is a la-
bor organization within the meaning of Section 2(5) of the Act.
3. Respondent, by changing its rule to prohibit personal use
of its copy machine; by changing its rule to prohibit posting
notices except in the break room after dating and securing su-
pervisory approval on the notice; by issuing a new interviewing
policies and procedures manual on May 29; by telling employ-
ees they cannot distribute union materials outside the Center;
by telling employees they cannot distribute union literature in
the front bulletin board area; by telling employees that distribu-
tion of union literature is prohibited in work areas and that un-
ion literature may be distributed only in the breakroom; by
telling its employees they may not offer union literature to any
employee that has previously declined union literature; by tell-
ing employees that distribution of union literature in work areas
is not permissible and that employees may be charged with
harassment for offering literature to any one that previously
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
declined union literature; and by posting a USAA Realty notice
prohibiting solicitation outside its Center; because of its em-
ployees’ union activities, has engaged in conduct in violation of
Section 8(a)(1) of the Act.
4. Respondent, by closing its Center from May 25–30, 2000,
because of a rumor of union organizing activities; and by issu-
ing a warning to employee William Lewandoski because he
distributed a letter regarding the Union to employees in a work-
ing area on June 9, 2000; has engaged in conduct in violation of
Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of section 2(6),
(7), and (8) of the Act.
REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that Respondent unlawfully closed its facil-
ity from May 25–30, 2000; issued a new manual that unlaw-
fully included no-solicitation/no-distribution provisions, provi-
sions against taping activities at work, provisions against post-
ing personal notices and prohibitions against using computers
and Internet and e–mail for personal use; and unlawfully
warned employee William Lewandoski on June 9 because of
his protected union activities; in violation of sections of the
Act, I shall order Respondent to rescind all reference to its May
25–30 closing; rescind unlawful provisions of the May 2000
manual and rescind the disciplinary action against William
Lewandoski, and to notify each of its employees in writing that
it has taken that action.
[Recommended Order omitted from publication.]