Gallup, Inc.

National Labor Relations Board - Board Decisions

May 31, 2007

349 N.L.R.B. 1213 (N.L.R.B. 2007)

GALLUP, INC.
349 NLRB No. 113
1213
Gallup, Inc. and United Steelworkers of America,
AFL–CIO, CLC. Cases 16–CA–19898, 16–CA–
19898–2, 16–CA–19898–3, 16–CA–19898–4, and
16–CA–20028
May 31, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On May 25, 2001, Administrative Law Judge Richard
J. Linton issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions, a supporting brief,
and a brief in response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order as modified.

1 We deny the Respondent’s cross-exception based on its trial mo-
tion to strike the testimony of all four alleged discriminatees on the
ground that the General Counsel assertedly failed to comply with sub-
poenas that were served on those individuals. On special appeal, in two
orders dated March 1 and 31, 2000, the Board denied that motion,
finding that the Respondent had failed to file a request for the subpoe-
naed material with the General Counsel as required under 29 CFR §
102.118. The Respondent has proffered no new reason for us to revisit
this issue.
2 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) of the Act by restricting employees from
posting, distributing, or possessing union-related literature; by remov-
ing and confiscating such material; by requiring employees to notify a
supervisor before distributing union literature; and by instructing new
employees to report attempts by other employees to speak to them
about union matters.
In addition, no cross-exceptions were filed to the judge’s findings
that the Respondent did not violate Sec. 8(a)(1) by issuing a no-
harassment statement directed at organizing activity, restricting access
to copying equipment, or on additional occasions removing posted
union literature or restricting posting and distribution.
We also find the allegation that Supervisor Chad Murray removed
union literature from an interviewer’s desk and told employees they
could not distribute such literature, and the allegation that Lead Super-
visor Gisela Uria-Ruiz told Sherri Lee, on May 14, 1999, that distribu-
tion of union literature at the workplace was forbidden, to be cumula-
tive of other violations the judge found to which the Respondent does
not except. We therefore do not reach these allegations.
The General Counsel excepted to the judge’s failure to find that the
Respondent, by Supervisor Heidi Roberts, violated Sec. 8(a)(1) on three
occasions when she told employees who acted as mentors for new
interviewer trainees not to talk to the trainees about the Union during
training sessions. We find merit in the General Counsel’s exception for
the following reasons. The antiunion mentors wore antiunion T-shirts
and buttons. However, Roberts addressed herself only to the prounion
mentors, who wore no insignia of any kind, and told them to refrain
from talking about the Union. This discriminatory conduct violated
Sec. 8(a)(1).
I. MAY 19 REMOVAL OF POSTED LITERATURE
The complaint alleged that on May 19, Supervisor
Heidi Roberts removed union flyers from the walls of
employees’ cubicle walls and desks, and told employees
they could not post union literature. However, as the
judge found, the record evidence pertained only to other
misconduct allegedly committed by Roberts on different
dates. Since the General Counsel neither amended the
complaint in this respect nor cited any evidence to sup-
port the complaint allegation, the judge correctly dis-
missed it.
II. JUNE 4 RESTRICTION ON DISTRIBUTION
The judge found from the credited evidence that Su-
pervisor Gisela Uria-Ruiz, on June 4, told prounion in-
terviewers that they could only distribute their literature
with permission from a supervisor. Their literature was
union literature. The judge found this to be lawful on the
ground that Uria-Ruiz’ statement “applied to all distribu-
tions” and therefore did not constitute disparate enforce-
ment. We disagree and find that Uria-Ruiz’ statement
violated Section 8(a)(1) of the Act.
As the judge found, no supervisor had previously told
the Respondent’s employees of any “unwritten” restric-
tion, and the Respondent had permitted numerous post-
ings and distributions on other matters. In fact, the judge
found that distribution and posting had been “practically
unrestricted,” and that “[t]he variety of endeavors [for
which posting was allowed] seems endless,” but that this
tolerant policy “changed once the union literature began
to appear.” The judge also found, without exception
from the Respondent, that the Respondent’s asserted pol-
icy restricting distribution and posting “in fact was newly
created in order to suppress the protected activities of the
supporters of the Union.”
In this setting, although Uria-Ruiz may not have re-
ferred explicitly to “union” literature when she imposed
an oral restriction on distribution, she was applying a
new and restrictive policy specifically to a union distri-
bution. And as noted above, the Respondent had previ-
ously not restricted any nonunion-related distribution or
posting. Under these circumstances, we find that Uria-
Ruiz disparately enforced the Respondent’s policy
against union distributions, in violation of Section 8(a)(1)
of the Act. St. Francis Medical Center, 340 NLRB 1370,
1378 (2003) (finding violation where employer prohib-
ited union distributions but did not prohibit nonunion
distributions).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1214
ORDER3
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Gallup,
Inc., Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following paragraph for 1(e) and re-
letter the subsequent paragraphs accordingly.
“(e) Instructing employees not to talk to new inter-
viewers about the union.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT restrict you from posting, distributing, or
possessing union-related literature, flyers, or notices
anywhere in the Houston, Texas office that employees
are permitted to post, distribute, or possess other non-
work-related materials.
WE WILL NOT remove or confiscate posted or distrib-
uted union-related materials from places where employ-
ees may post, distribute, or possess other nonwork-
related items.
WE WILL NOT require you to notify a supervisor before
distributing union literature at work where no such noti-
fication is required before you distribute other nonwork
materials.
WE WILL NOT instruct or request new employees, or
trainees, to report to supervision any attempt by other
employees to speak to them about union matters as the

3 We will modify the remedial notice in accordance with Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004).
new employees, or trainees, are working, where the in-
struction or request does not also extend to other non-
work-related matters.
WE WILL NOT instruct employees that they cannot talk
to new interviewers about the union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind all rules restricting you from posting, dis-
tributing, or possessing union literature, flyers, or notices
in the Houston, Texas office more so than we restrict
such posting, distributing, or possessing other nonwork-
related materials, and contemporaneously with the re-
moval of such restrictions, WE WILL notify you in writing
that such rules have been rescinded and that you are free
to post, distribute, or possess union-related materials in
the same manner that you are free to post, distribute, or
possess any other nonwork-related items.
WE WILL, within 14 days from the date of the Board’s
Order, notify you, especially including new employees,
or trainees, that you are as free, during your working
time, to talk with other employees about union matters
and without notifying supervision of such talk, to the
extent that you are permitted to talk about any other non-
work-related matter without such notification.
GALLUP, INC.
Tamara J. Gant, Esq. for the General Counsel.
William A. Harding, Esq. and Jack L. Shultz, Esq. (Harding,
Shultz & Downs), of Lincoln, Nebraska, for the Respon-
dent, Gallup.
Douglas P. Fennell, Org. (Steelworkers), of Houston, Texas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge: At the height
of the Union’s organizing campaign, Gallup brought in its
CEO, Jim Clifton, who delivered an impassioned speech to the
assembled employees. Partly because some of Clifton’s ex-
pressions used words such as “guns,” the Government attacks
the speech as unlawful, arguing that, in effect, one message of
the speech was that the entire office should rise up and expel
this enemy before it destroys Gallup. The argument suggests
that the Union’s supporters may well have recalled the opening
stanza from Lord Byron’s, The Destruction of Sennacherib:1
The Assyrian came down like the wolf on the fold,
And his cohorts were gleaming in purple and gold;
And the sheen of their spears was like stars on the sea,
When the blue wave rolls nightly on deep Galilee.

1 See 2 Kings 19:35; 2 Chron. 32: 21; Isaiah 37:36.
GALLUP, INC. 1215
This is a discharge case. In the summer of 1999,2 Gallup
fired four employees who are the alleged discriminatees here.
Finding in favor of the Government as to only a few of the
allegations of coercive statements (and not as to CEO Clifton’s
speech), I also dismiss as to all four of the dischargees.
I presided at this 16-day trial in Houston, Texas beginning
November 16, 1999 and concluding on June 27, 2000. Trial
was pursuant to the September 30, 1999 order consolidating
cases, consolidated complaint, and notice of hearing (the com-
plaint), issued by the General Counsel of the National Labor
Relations Board through the Acting Regional Director for Re-
gion 16 of the Board. Such pleading is based on a series of
charges filed by the United Steelworkers of America, AFL–
CIO, CLC (the Union), beginning with the charge (later
amended), filed May 24 in Case 16–CA–19898, and ending
with the charge (later amended) filed August 12 in Case 16–
CA–20028.
The pleadings establish that the Board has both statutory and
discretionary jurisdiction over Gallup, a Delaware corporation,
that Gallup is a statutory employer, and that the Union is a
statutory labor organization. The pleadings also establish that
Gallup has a place of business in Houston, Texas where it is
engaged in market research and consulting services for various
companies.
Among its half-dozen services, Gallup, also known as The
Gallup Organization, no doubt is best known for The Gallup
Poll that Dr. George Gallup Sr. developed in the 1930s. (JX 23
at 11)3 [JX 23 is a photocopy of the printed and paper-bound
RX 35, the “Interviewer Training Manual” (ITM) at Gallup.
To better understand the pagination of JX 23, and for back-
ground purposes, the parties have agreed (by fax or letter not
part of the record) that RX 35, marked at 7:1365 but not of-
fered, may be received in evidence. I now receive RX 35 into
evidence for the limited purpose stated. Accordingly, counting
the cover as page 1 and the cover’s inside as page 1A, the
“Welcome” page becomes page 2 and the table of contents
pages 3 and 4. As shown on page 1A, the publication date of
the manual is January 1999. Although JX 23 contains a few
hand printed marginal comments, I have disregarded them as
not being part of the exhibit.]
“The Gallup Organization as we know it today is the combi-
nation of two great companies which came together in 1987.”
(JX 23 at 11) The two companies were The Gallup Organiza-
tion and Selection Research, Inc. (SRI), with SRI acquiring
Gallup. (JX 23 and RX 35 at 12–13) Presumably, Gallup, Inc.
is the parent organization of The Gallup Organization, but the
record is unclear. Although SRI did the acquiring, the com-
bined firm, wisely it appears, puts The Gallup Organization
front and center. [In a speech, discussed later, that CEO Clifton
gave to the Houston employees on May 26, Clifton describes
how SRI purchased the Gallup organization from Dr. Gallup’s
estate. JX 6 at 14–16.] As to all these names, including the
combined company (whatever its legal name might be), I here

2 Unless otherwise indicated, all dates are for 1999.
3 References to the 16-volume transcript of testimony are by volume
and page. Exhibits are designated GCX for the General Counsel’s, and
RX for those of Respondent Gallup.
apply the short name of Gallup unless there is a need to refer to
a specific name.
As of the January 1999 publication of the interviewer train-
ing manual (ITM) (JX 23 at 2), Gallup operated with “over
2,000 associates in 30 countries.” (JX 23 at 13) Of this num-
ber, over 1500 are interviewers (consumer, with over 100 ex-
ecutive interviewers). Gallup’s surveys “cover 70% of the
entire world’s population.” (JX 23 at 15)
At its website, www.Gallup.com, we learn that Gallup’s
World Headquarters office is located in Princeton, New Jersey,
and that its North American Operations Center is situated at
301 South 68 Street Place in Lincoln, Nebraska. Further,
Gallup’s corporate headquarters also are located at the South
68th Street address in Lincoln. I take official notice of the web-
site only for background information.
Reliability of its data collection process is of the utmost im-
portance to Gallup. In Gallup’s “Welcome” page to new inter-
viewers from Jim Clifton, President and CEO (the website
shows his name as James K. Clifton), Clifton writes (JX 23 at
2):
Gallup has a commitment to quality that no other company in
our industry can match. Nothing is more important to us than
the accuracy and reliability of our data.
And three pages later the training manual (ITM) declares to
the new interviewer (JX 23 at 5):
The “Gallup” name is the most trusted in market research.
Known worldwide for The Gallup Poll, our company’s mis-
sion is “Helping People Be Heard.”
Remember the part about “the most trusted” name in market
research, for when we get to my summary of CEO Clifton’s
May 26 speech to the Houston employees, we will see that
Clifton uses that asserted reputation as his primary theme in
order to emphasize his message.
The complaint alleges that, beginning about May 14, 1999
and continuing to about August 8, 1999, Gallup, by several
named (including CEO Clifton as to his May 26 speech) and
unnamed supervisors, engaged in various coercive acts in viola-
tion of Section 8(a)(1) of the Act. Gallup denies. The com-
plaint also alleges that Gallup unlawfully discharged four em-
ployees. Admitting the fact of the discharges, Gallup denies
that such violated Section 8(a)(3) of the Act. Named in com-
plaint paragraph 25, the four, with their discharge dates, are:
Lynne Zieler – June 22, 1999
Janice Rinehart – June 24, 1999
Sherri Lee – June 30, 1999
Patrick Snyder – August 6, 1999
The organizing campaign to obtain union representation ap-
pears to have been rather brief. From late April to May 13,
1999, employees Sherri Lee, Lynne Zieler, and others met with
Doug Fennell, the Union’s organizer, and formed an organizing
committee of 20 employees. (5:885–886; 6:1023–1025) Be-
fore July 1, 1999 (when she became Director of Latin American
Interviewing), Gisela Uria-Ruiz was the Director of Consumer
Interviewing for Gallup’s Houston office. (1:37) Before mid-
May Gallup had an interviewing office in Bellaire (one of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
small incorporated areas surrounded by the City of Houston),
but that office was closed on May 14, 1999 and its operations
merged into the Houston (north) office at 14405 Walters Road,
on the north side of Houston. The old Bellaire office is not
involved in this case. (1:41; 11:2144)
The (combined) Houston office occupies the second floor
(about 17,000 square feet) of a 10-story building. (11:2156,
Barlow) A floor diagram (RX 38) is in evidence. The office
has some 200 employees, including 7 supervisors. (1:48, 112;
2:226) The employee interviewers work in cubicles, about 200
in number. (3:553, Lambert; 4:742, Snyder) The cubicles
stand about shoulder height. (5:880, Snyder; 14:2810, Geiger)
As with the other management representatives, Uria-Ruiz’s
title also is called supervisor or manager. During this early
time frame, Uria-Ruiz was the “lead” supervisor. Each of the
seven supervisors reports to Director of Interviewing Jean
Timmerman at the corporate office in Lincoln, Nebraska.
(2:226; 13:2474–2475) As “lead” supervisor, Uria-Ruiz was
not in charge of the other supervisors, for all the supervisors are
equal. However, one served as “lead” or liaison in communi-
cating with Timmerman on certain project and budgetary mat-
ters. (2:225–227) In July 1999, Heidi Roberts (maiden name
Russo, 15:2933) became the lead supervisor. (15:2932) Effec-
tive July1 Uria-Ruiz became Director of Latin American Inter-
viewing. (1:7–8, 37)
As we shall see, “Mission Control” is the designated name
for a small area, just outside the break room in the top center
section of the floor diagram (RX 38), where a supervisor is
located and available for assisting, consulting, and directing.
(2:345, Uria-Ruiz; 11:2148, Barlow) A bulletin board (the
mission control bulletin board) is located on the outside wall of
Supervisor Chad Murray’s office and faces the mission control
desk. (15:2976, Murray; RX 38) The mission control bulletin
board is about 4 feet high, 8 feet wide, and is divided into eight
sections, with one of the sections designated as “Other.” (1:48;
2:346–349, Uria-Ruiz; 3:547, Lambert)
About 30 minutes before a mandatory meeting scheduled by
Uria-Ruiz for 5 p.m. on May 14, Lynne Zieler, Janice Rinehart,
Sherri Lee, and several other members of the organizing com-
mittee entered Uria-Ruiz’s office and, delivering a paper (GCX
49) warning that managers and supervisors should not violate
the law, announced the fact of the organizing campaign. (1:37;
5:888–890, 947–950; 6:986–988, 993–994, 1026–1027;
7:1323–1326; 8:1687–1691; 10:1934; 15:3036)
At the 5 p.m. mandatory meeting that May 14, attended by
between 100 and 200 interviewers (6:994, Zieler; 15:3037,
Uria-Ruiz), Uria-Ruiz made an announcement pertaining to the
Bellaire closing, and then said that rumors of some union orga-
nizing had now been confirmed, that a group of interviewers
had just informed her that there was an organizing drive in
progress. Uria-Ruiz encouraged employees to attend any union
meetings, to get the facts, and to ask questions. However, Uria-
Ruiz made it clear that the “Union is not what Gallup is.” At
about that point organizing committee members Janice
Rinehart, Sherri Lee, and Mark Anthony “Money” Anderson
announced that the first (general) union meeting would be held
at a local Holiday Inn that Sunday (May 16). (2:281; 15:3037–
3039) Minutes of the short meeting are in evidence as Joint
Exhibit 18. (2:281–282)
By letter dated May 16 (RX 5), the Union, by organizer
Doug Fennell, notified Uria-Ruiz and Gallup of the in-house
organizing committee at the Houston facility on Walters Road,
that such activity was protected by law, and that “We look for-
ward to a fair and amicable organizing campaign, and a bright
future for all at Gallup.” At the bottom of the letter all 20
members of the organizing committee signed their names, with
that of Janice Rinehart leading the first column. Counting
Rinehart, all four of the alleged discriminatees are listed (along
with 16 others not alleged as discriminatees). That Monday,
May 17, Uria-Ruiz testified, Janice Rinehart and Lynne Zieler
delivered courtesy copies of the foregoing letter (plus a copy of
a second letter) to Uria-Ruiz, informing her that the original
would arrive by certified mail. It did. (2:283–284) The orga-
nizing committee named itself the “We Care About You Com-
mittee.” (11:2097, Rinehart; 16:3155, Snyder)
Throughout the organizing campaign, some employees sup-
ported the Union, while other employees opposed it. (5:953,
Zieler) Oddly, it appears that the members of the organizing
campaign were “very surprised” to learn that a substantial
number of employees opposed unionization of the office.
(6:1033, Lee) Record evidence is rather limited about how or
when the organizing campaign ended. The campaign (both for
and against) appears to have been quite active during May and
June, apparently subsiding thereafter, especially so after the
organizing committee lost the first three (Lynne Zieler, Janice
Rinehart, and Sherri Lee) of the alleged discriminatees to ter-
mination in late June. In any event, the campaign never gener-
ated enough employee support to persuade the Union to file a
petition for an election, and the parties stipulated (2:314) that
no election petition was ever filed.
Of the 28 witnesses who testified, 15 were called by the
Government (one, Uria-Ruiz, called under FRCP 611(c), was
recalled by Gallup), which then rested (11:2119), and 13 (in-
cluding Uria-Ruiz) were called by Gallup, which then rested
(15:3132). There was brief rebuttal and surrebuttal by wit-
nesses recalled to testify.
The parties have stipulated (RX 87) to the admission of
documents containing corrections for each of the 16 volumes of
the transcript (GCX 1 (bbb – rrr); RXs 80-86). (RX 86 appar-
ently supersedes RX 81.) I had indicated (16:3149–3150) that
there was no need to correct typographical errors where the
meaning or correct word is clear. Moreover, what sometimes,
perhaps frequently, appears to be an error is really the reflection
of a mispronunciation by the witness, lawyer, or judge. When
the meaning is obvious, the printed error ordinarily needs no
formal correction. Also, when the name of a witness is mis-
spelled, it need be corrected only once for all such entries.
Repeated corrections are unnecessary. The stipulated correc-
tions sometimes go beyond these guidelines. Nevertheless,
approving the stipulation (RX 87), I now receive in evidence
RXs 80–87. GCX 1(bbb) through (rrr), with (sss) being the
index, were received earlier. (16:3171)
The General Counsel filed a motion, dated November 13,
2000, to reopen the record in order to introduce certain addi-
tional documents. Gallup filed its opposition, dated November
GALLUP, INC. 1217
27. By order dated November 30, I denied the Government’s
motion to reopen the record.
By its March 13, 2001 motion, the Government requests that
I take official notice of an attached (copy of the) 25-page
March 7, 2001 decision, JD(ATL)–16–01, of Administrative
Law Judge Pargen Robertson in Gallup, Case 16–CA–20442, a
case involving Gallup’s operation in Austin, Texas. Gallup
objects by its opposition of March 19. In granting the General
Counsel’s motion only to a limited extent, I take official notice
of Judge Robertson’s decision (which, as Gallup argues, is not
final and from which Gallup intends to appeal to the Board) for
the single limited purpose of recognizing it as a background
event as to Gallup generally.
Also for background purposes, I take official notice that the
Government has filed a petition for injunctive relief under Sec-
tion 10(j) of the Act involving the matters in this case. That
proceeding, styled National Labor Relations Board v. Gallup,
Inc., C.A. No. H-99-4223 in the United States District Court for
the Southern District of Texas, Houston Division, is pending
before the Honorable Ewing Werlein, Jr., United States District
Judge. The parties have advised me that oral argument was set
for March 2, 2001 before Judge Werlein, and I have informed
counsel of an estimated date for the issuance of my decision in
this case.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the post-
trial briefs filed by the General Counsel and by Gallup, I make
the following findings and conclusions. Aside from its 171-
page primary brief, Gallup submitted a 55-page brief in reply to
the Government’s 52-page brief. Judges do not always accept
reply briefs,4 and accepting such is at the judge’s discretion.
Fruehauf Corp., 274 NLRB 403, 403 fn. 2 (1985). Having
reviewed Gallup’s unopposed motion for leave to file, dated
October 5, 2000, and as such reply brief arrives at a very early
stage in the decision process, I grant Gallup’s motion and I
have considered its reply brief. See Salem Electric Co., 331
NLRB 1575, 1578 fn. 3 (2000). Complying with my trial re-
quests (11:2042; 16:3184–3186), Gallup’s briefs were quite
helpful because in them Gallup lists many facts (giving the
names of the witnesses, and the volume number and page of the
transcript), as well as arguing the factual and legal issues. Fi-
nally, in February of this year the parties, at my request, filed
supplemental briefs on a question (arising in Janice Rinehart’s
case) governed by the Board’s decision, on July 10 last year, in
Epilepsy Foundation of Northeast Ohio, 331 NLRB 676
(2000). The supplemental briefs were helpful.
FINDINGS OF FACT
A. Procedural Matters—Tapes, Subpenas, and
Special Appeals
Before the trial opened on November 16, 1999, Gallup
served subpenas duces tecum (SDT) on the four alleged dis-
criminatees directing each of them to produce any audio and
video tape recordings that they may have made (or be in pos-
session of) at or near Gallup’s place of business between Janu-

4 See, for example, NACCO Materials, 331 NLRB 1245, 1246 fn. 2
(2000).
ary 1, 1999, and the date [November 3, 1999] of the subpena.
As it turns out, audio tape recordings, fitting the description in
the SDT, had been made, but they had been turned over to the
General Counsel (that is, to the Government’s trial attorney)
before the SDTs were served on the four dischargees.
The issue came up shortly after cross-examination had begun
respecting Patrick C. Snyder, the first of the four dischargees to
testify. Following, on request, the General Counsel’s produc-
tion of Snyder’s three pretrial affidavits (4:751), Gallup in-
quired about a reference in one of the affidavits to a tape re-
cording of a conversation. (4:767–768) This led to the disclo-
sure that tapes, which had relevant information (4:777), had
been made and turned over to the General Counsel before
Gallup’s SDT (RX 21; 4:774–775) was served on Snyder.
(4:769, 771, 778) Gallup demanded production of the tapes
that now were in the General Counsel’s possession. The Gen-
eral Counsel refused under either the Jencks rule (29 CFR
102.118)5 or under the subpena to Snyder (4:777) and (4:778):
MS. GANT: Your Honor, this witness cannot produce
what he does not have, and his testimony cannot be
stricken for failure to produce something that is not in his
possession.
JUDGE LINTON: Can a witness hide something from
evidence by turning it over to, say, his lawyer?
MS. GANT: But, Your Honor, there’s no contention
that this witness is hiding something by turning it over to
his lawyer. These tapes were given to us before any sub-
poenas were served on these individuals. There’s no evi-
dence of that [hiding].
JUDGE LINTON: Well, I’ll grant the motion if the
tapes are not going to be produced.
Gallup moved to strike all testimony of Snyder concerning
conversations with supervisors. (4:775–778) Repeating her
position, the Government asserted that the tape was not produc-
ible under Jencks, and she pointed out that no SDT had been
served upon her. (4:786)
Essentially granting Gallup’s motion to strike (4:787–788), I
relied on Bannon Mills, 146 NLRB 611 (1994), and on my
analysis that to do otherwise would be equivalent to permitting
a party to hide evidence, in advance of any subpena, by deposit-
ing it with his lawyer as a “King’s X” sanctuary (4:783–784),6
something the courts say a client may not do. I also stated that
to take the time for Gallup to serve the General Counsel with a
subpena (and to request that the General Counsel in Washing-
ton, D.C. grant the Government’s trial attorney, or the Regional
Director, permission to produce the tapes) would be nothing
more than an exercise in wasting time. (4:778, 782–785) The
General Counsel announced her intention to file a special ap-
peal. (4:780–781) As this development also applied to the
remaining witnesses, I adjourned the trial sine die. (4:815)

5 “Those statements were not made to me. Therefore I have no obli-
gation to furnish them under Jencks.” (4:772–773)
6 A lawyer cannot be used as a shield against discovery of relevant
documents. See E.S. Epstein, The Attorney-Client Privilege and the
Work-Product Doctrine 116-117 (3d ed., ABA, 1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
During the adjournment the General Counsel filed her spe-
cial appeal of November 24, and Gallup filed its December 2
brief in opposition. Other filings were made, including
Gallup’s motion to reconsider, in which confirmation of a fact
was established. By its order of March 1, 2000, the Board
(Members Liebman and Hurtgen, with Member Brame dissent-
ing) granted the General Counsel’s special appeal and reversed.
The Board’s order (with the dissent) is rather lengthy at 11
pages, but the bottom line is this: Gallup would have to take the
route of a written request as required by 29 CFR 102.118. (The
dissent argued that the General Counsel should have moved to
quash the SDTs or simply have alerted Gallup, when the SDTs
were served, that she, not the witnesses, had possession of the
tapes, so that Gallup could then have made a written request
that consent be granted for the General Counsel to produce the
tapes. As of the Board’s March 1 order, however, it was not
clear when the General Counsel learned that the SDTs had been
served.)
Responding to Gallup’s motion for reconsideration, the Gen-
eral Counsel candidly stated that, before trial, she was aware
that the SDTs had been served. The Board’s subsequent order,
as corrected on May 31, 2000, ruled as before. (Member
Brame, dissenting, would have granted Gallup’s motion for
reconsideration.) In its May 31 order, the Board also makes
clear that my ruling that a 102.118 request was “unnecessary”
was the point of the first order. Thus, “It was precisely that
ruling that was reversed by the Order of March 1.”
Finally, I report a possibly significant dictum by the Board in
its order of March 1. First, recall from Delta Mechanical, Inc.,
323 NLRB 76, 77 (1997), that Jencks does not apply to voices
of an event in progress captured on a tape recording because
such recordings are “direct evidence” of the event and as direct
evidence such tapes would be “subject to a subpena duces te-
cum.” However, in footnote 3 of its March 1, 2000 order, the
Board writes:
Although Sec. 102.118 contains a Jencks exception to the re-
quirement for requests for General Counsel’s consent, no
party contends that the tapes fall within this exception. [This
was clarified in the second order, denying the motion for re-
consideration, to state “The Judge found that the rule did not
apply, and no party requested special permission to appeal
that ruling.”] We therefore do not pass on this issue. How-
ever, we note that, in our view, the mere fact that a witness’
statement is made on tape, rather than in a writing, is not per
se a basis for excluding it from the Jencks rule.
If all the Board means by its last sentence of footnote 3 is
that a witness “statement” submitted, or taken by a Board
agent, on a tape recording and describing past events, as distin-
guished from an event in progress captured on a tape recording,
then nothing is new. Clearly that tape recording would be pro-
ducible under the Jencks rule. But does the context of the en-
tire footnote 3 suggest that the Board is signaling a change?
(After all, the tapes here were not statements dictated on tape
rather than placed in an affidavit. The tapes here captured
voices of events in progress—direct evidence.) That is, by its
footnote 3, is the Board indicating that it now disapproves of
the cited rule of Delta Mechanical? True, such an indication in
footnote 3 would be dictum. But dictum “can be persuasive
authority.” Ayoub v. I.N.S., 222 F.3d 214, 215 (5th Cir. 2000).
It seems unlikely that the Board intends, by its footnote 3, to
indicate any disapproval of or departure from Delta Mechani-
cal. Overall (and also in light of the Board’s order of May 31),
therefore, I interpret footnote 3 as suggesting nothing new, and
that its reference to a “statement” on tape simply is a reference
to a typical statement that, instead of typed, is dictated (describ-
ing past events) onto a tape recording. And such a “statement,”
as footnote 3 asserts, is producible under the Jencks rule. As
for a tape recording by which a witness has captured, on the
tape, voices (audio) or sights and sounds (video) from some
event in progress, then that, under Delta Mechanical, would be
a tape of “direct evidence” producible under subpena duces
tecum. And, per the instant case, make sure that a written re-
quest also is made under 28 CFR 102.118. If permission is not
granted to produce, then (the Board states in its March 1 order
at 2 fn. 4), the presiding judge “should decide any issues flow-
ing from the General Counsel’s response,” such as, presumably,
a petition to revoke the SDT.
B. Allegations of Coercion
1. Introduction
Complaint paragraphs 8 through 24 allege coercive acts.
Aside from paragraph 23, concerning CEO Clifton’s speech of
May 26, most of the paragraphs deal with distributing or post-
ing union literature, and most of the dates are for May 1999.
2. Supervisor Gisela Uria-Ruiz
a. May 14, 1999
(1) Facts
Complaint paragraph 8 alleges that, about May 14, Gallup,
by Uria-Ruiz, told employees that “distribution of literature was
prohibited at the center.” Gallup denies.
Following the 5 p.m. mandatory meeting, and with the other
supervisors present in her office, Uria-Ruiz called their com-
mon superior, Jean Timmerman, at the Lincoln corporate of-
fice, and spoke with Timmerman and Jane Miller, director of
operations. (2:326–327) When the conference call ended and
Uria-Ruiz opened her door, Sherri Lee was there posting a flyer
about a union meeting on Sunday, May 16, that Janice Rinehart
(JX 18 at 1) had announced earlier at the 5 p.m. mandatory
meeting. Uria-Ruiz testified that she told Lee that such distri-
bution was prohibited, that it was not authorized, that “[w]e
never had allowed distribution in the office.” (1:48–49; 2:327;
15:3040)
Sherri Lee replied that Gallup had permitted the distribution
of a religion flyer about a prayer meeting. Uria-Ruiz advised
Lee that neither she nor any of the managers had approved the
distribution of the religion flyer. Lee responded that it made no
difference because such distribution had set a precedent and
that now “we have the right to distribute.” Uria-Ruiz said that
she would check with Gallup’s lawyers and get back to Lee.
(2:327–328, 336; 15:3040)
The religion flyer (RX 17), announcing nondenominational
prayer meetings to begin May 13, apparently was distributed by
Michael Lee, an executive interviewer, on May 13. (2:328,
Uria-Ruiz) Uria-Ruiz testified that no supervisor approved
GALLUP, INC. 1219
Michael Lee’s distribution of the religion flyer. (2:327;
15:3041)
Uria-Ruiz testified that before May 27, Gallup had followed
an unwritten policy that prohibited distribution of nonwork
material in the office work areas. (2:327, 360) For example,
Uria-Ruiz described an occasion in about January 1999 when
Jack Burrows, a former executive interviewer, asked Uria-Ruiz
if he could distribute his business card. (Burrows sold health
and dental insurance on the side.) Uria-Ruiz denied the re-
quest, although she permitted him to leave some cards at the
front desk and to publish a note in Gallup’s newsletter, “Cur-
rent,” because selling insurance was something commercial or
“business” in nature. (2:334–335, 347)
Following her consultation with Gallup’s lawyers, Uria-Ruiz
testified (2:337; 15:3041), Gallup relaxed its policy and on May
27 Uria-Ruiz issued (1:48; 2:331, 337) to all interviewers a
memo reading (JX 2):
We have had many questions about distribution of
written material by employee’s on matters which do not
involve business. There is no change in policy, but this
memo is for the purpose of making sure everyone knows
the policy.
1. In general—Gallup allows non-business material to
be distributed by employees at work. We allow such dis-
tribution in the break room and at interviewer desks. We
recently allowed such distribution by a prayer group and
by pro-union employees. A supervisor must be notified
before any such material is distributed.
2. Exception—This right to distribute does not apply to
the new interviewer desks.
3. Prohibition—Employees distributing material or lit-
erature are prohibited from disrupting employees who are
working. If a co-worker is placing a call or otherwise
working, you may not interrupt them.
4. Posting—Such material can be posted at your work
area or in the break room. It may also be posted on the
bulletin board by Mission Control if approved in advance
by a supervisor.
We will continue to follow this long-standing policy if
it is not abused. Please respect the rights of your co-
workers.
Notwithstanding Uria-Ruiz’s testimony about an “unwritten”
policy prohibiting the distribution of nonwork materials in the
office work areas, there is an abundance of testimony that no
supervisor had ever told anyone of such “unwritten” policy.
Moreover, the evidence is that distribution and posting was
practically unrestricted. (3:588, Robinson; 3:608–609, Juneau;
4:685, 687–688, Snyder; 5:895, Zieler; 6:1038, 1041–1042;
7:1334, Lee) A partial exception existed, at times, when there
might be a partial removal of some items posted by employees
in their work cubicles just before a visit by one of Gallup’s
clients.
Indeed, Supervisor Uria-Ruiz asserts that she, or other su-
pervisors, approved much of what was done. Thus, before the
advent of the union organizing in mid-May 1999, Uria-Ruiz
approved postings on Gallup’s main bulletin board for sales of
dogs and a notice of a free rabbit. (2:347–348) Such postings
on the bulletin board, which always have required supervisory
approval, are posted on a specific section denominated,
“Other.” (1:48; 2:346–349) Notice of a Cuban festival had
been posted there in the past, but Uria-Ruiz declined to approve
it on the last request. (2:348) Uria-Ruiz reports that notice of
the Cuban festival was posted in the break room (2:350), where
Gallup always has permitted practically anything to be posted
(2:345–346, 348, 352).
Uria-Ruiz concedes that Girl Scout cookies will always be
sold, but she contends that such is different from someone so-
liciting for “a type of business.” (2:351) As to the latter, in
addition to Uria-Ruiz’s rejection of the sale of insurance, men-
tioned earlier, Gallup (it is not clear whether Uria-Ruiz or an-
other supervisor acted) rejected the sales effort of Herbalife in
1998. (2:351–352)
But where insurance and Herbalife solicitations for sales
were barred, Janice Rinehart succeeded in obtaining the per-
mission of Supervisor Douglas Barlow to distribute color flyers
(GCXs 52, 53) advertising water pillows that she and her hus-
band sold in a sideline business that they operated. Rinehart
did not post any of the copies. (8:1701–1703; 10:1935) This
occurred either in 1997 (8:1701, Rinehart), 1998 (3:606, Jun-
eau), or early 1999 (5:894, Zieler). Then there is the gourmet
sauce and meatballs that Sherri Lee sold in 1998 for a person
who distributed such items as a commercial venture. Lee did
not request permission before she posted (breakroom; around
the start up computers; and in the hallways) and distributed
literature promoting the product. Supervisors were aware of
her actions because at least one supervisor, Dennis Welch,
bought some of the product. (6:1044–1045, 1341)
The variety of endeavors seems endless. As Patrick Snyder
and Sherri Lee describe, there were fundraisers for employees
who had cancer (6:1042), or who were otherwise sick (4:682;
Nancy Sico in 1998, 6:1043), or who simply needed financial
aid (4:682; 6:1042). Several of the supervisors, including Uria-
Ruiz, contributed to the collection for one of the cancer victims.
(6:1043) Notices were posted on doors and walls as well as in
the cafeteria and break room. (4:683)
There also were the usual sales of cars, boats, and furniture
with the notices posted on the cubicles of the employees or
placed on many of the desks of the other employees. (2:369,
Trovato; 4:682, Snyder; 6:1038, Lee)
Last, but certainly not least, we have postings inside the em-
ployees’ cubicles. Here by practice, and by policy, the postings
were virtually unrestrained—as some of the sexually suggestive
photographs in evidence (GCX 26) reveal. On one occasion, in
February 1997 (about a month after she was hired), interviewer
Catherine Wagley complained to Supervisor Tom Langenegger
about a large photo of a woman in a very small bikini. Lan-
genegger told Wagley that the interviewers could post anything
they wanted to in their individual booths. (2:431–432, 434–
435) The photos in evidence (GCX 26), and the testimony of
Supervisor Douglas Barlow (12:2234), confirm Langenegger’s
pronouncement.
As the aisleway side of the cubes are open, the postings in-
side the cubes are visible to anyone walking by. (2:434) When
a Gallup client was scheduled to come through on a tour, the
interviewers were informed of this and asked to tidy up their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1220
cubes. (2:320–321, Uria-Ruiz; 2:401, 436, Wagley; 12:2233–
2234, Barlow) In practice, this generally meant straightening
up papers and discarding any trash, not removing any photos or
other nonwork items. (2:402, Wagley; 3:522–523, Lambert;
3:634–635, Juneau) Thus, normally most of the nonwork
items, even the “cheesecake” and “beefcake” photos posted
inside the individual cubes, remained untouched. (2:402–403,
435–436, Wagley; 3:522–523, 558–559, Lambert; 4:740–741,
Snyder) However, when the “cheesecake” disrobed to the point
of displaying nudity, such as exposing a woman’s breasts, then
it appears that some effort was made by some supervisors to
come by, remove such nude photos (or ask that they be re-
moved temporarily), and place them in the interviewer’s desk
drawer on those occasions whenever a client was about to visit.
(5:864, Snyder; 15:3010, Solis).7
Although supervisor Doug Barlow agrees that it was the de-
sire to remove such displays of nudity before any client visit, he
concedes that he never instructed any interviewer to remove
any such items. And even though other supervisors have told
him that they have done so, he has no personal knowledge con-
firming their reports. (12:2234, 2387) Before May 1999, Su-
pervisor Chad Murray testified, Murray had never removed
literature from an interviewer’s cube except before a client visit
or simply to clear off a desk to free it up for availability.
(15:2986–2987)
In light of the foregoing, and all the record, it seems clear,
and I find, that before May 1999, Gallup’s policy and practice
was to permit employees to distribute and post, for example,
sales of personal items such as cars, boats, furniture, and pets,
to announce fundraising drives for needy employees, and to
solicit contributions from one and all on behalf of such em-
ployees. (Permission was required to post in the “Other” sec-
tion of the main bulletin board.) As for the individual booths of
the interviewers, postings inside such cubes were virtually un-
restricted with the sole exception that sometimes, in preparation
for client visits, employees would be asked to remove any pho-
tos of nudity, or supervisors, on occasion, would remove such
photos temporarily, while leaving posted the other nonwork
items. However, things changed once the union literature be-
gan to appear.
In making the foregoing findings, I also have considered the
fact that the Houston office has a Gallup-sponsored program
called “Community Builders.” [Although Patrick Snyder
(4:760) and Sherri Lee (7:1292) each claims to have gotten the
program started in Houston, both agree that Lee was the chair-
person of the committee once the program was launched in
Houston.] Under this Gallup-sponsored program, Gallup
matches any funds collected to help the community. Flyers that
circulate announcing, for example, fundraising activities such
as bake sales or garage sales do not need approval because that
is part of the company-sponsored activities of Community
Builders. (2:329–330, Uria-Ruiz) A separate bulletin board is,

7 About early 1996, Bobbie Solis was asked, in preparation for a cli-
ent’s visit, to remove a cartoon (RX 64) that the client might find offen-
sive. (15:3010–3011) The cartoon shows two older women, one in a
string bikini with her breasts sagging straight down below the bikini’s
top.
or at least was, maintained outside a supervisor’s office just for
the program. (15:2972, Roberts) Even though the record is
less than fully developed respecting the point, it appears that
the personal postings described in the record were separate and
unrelated to the Community Builders Program. (Indeed, the
parties have not even briefed the point.)
(2) Conclusion
As Supervisor Uria-Ruiz told Sherri Lee that Uria-Ruiz
would check with Gallup’s lawyers, and as the meeting notice
that Lee and others were distributing and posting was, it ap-
pears, posted and distributed, I find nothing coercive in Uria-
Ruiz’s statement on this occasion. Accordingly, I shall dismiss
complaint paragraph 8.
Some additional evidence bears on complaint paragraph 24
(regarding a directive to remove, temporarily, posted union
items during a client visit in August). I address complaint
paragraph 24 later.
b. May 27, 1999—The distribution memo
(1) Facts
Complaint paragraph 15 alleges:
About May 27, 1999, Respondent issued a memorandum
prohibiting distribution of literature at new interviewers’
desks, requiring supervisory notification prior to any distribu-
tion of literature at work, and requiring supervisory approval
prior to posting literature in the breakroom, at employees’
work stations, and on the bulletin board by “Mission Con-
trol.”
By its answer, Gallup “partially admits” the allegation, “but
denies the portion of complaint paragraph 15 concerning super-
visor approval prior to posting literature in the break room and
at employees’ workstations.” As one of its affirmative de-
fenses, Gallup pleads (defense VI):
At all material times, the Respondent continued to apply its
pre-existing policy concerning the distribution of literature
and the posting of material and made no exceptions concern-
ing the distribution or posting of either pro-union or anti-
union material except that Respondent relaxed its preexisting
policy concerning prior approval for distribution of literature
after the unauthorized distribution in early May 1999 by em-
ployee Mike Lee of certain religious oriented-material. Fol-
lowing such distribution, the Respondent relaxed its policy
and only required prior notification for the distribution of non-
work-related literature in its facility.
Complaint paragraph 27 alleges that the conduct alleged in
several paragraphs, including paragraph 15, constitutes a viola-
tion of Section 8(a)(1) of the Act. Gallup denies.
(2) Discussion
Citing (Br. at 15) “Eaton Technologies, 322 NLRB [848]
(1997)” [the page cite is 848, and the jump cite is 853–854], the
General Counsel argues for finding a violation. However, I
find merit only respecting the notification required to distribute.
Even then, however, I find no merit to the extent the allegation
attacks item “2. Exception” (respecting distribution on the
desks of trainees) of Uria-Ruiz’s May 27 memo (JX 2).
GALLUP, INC. 1221
Respecting the postings, complaint paragraph 15 reflects a
misreading of Uria-Ruiz’s May 27 memo in that, as Uria-Ruiz
testified (2:318, 345–348), postings at workstations and in the
break room are essentially unrestricted. The approval restric-
tion in paragraph 4 (JX 2) pertains to the mission control bulle-
tin board. Crediting Uria-Ruiz’s unrebutted testimony, I find
that prior approval has always been required for posting on
mission control’s bulletin board in the “Other” section. No
evidence was presented that, as in Eaton, such requirement was
honored only, or even mainly, in the breach.
Later I address the matter of distributions at the desks of the
trainees (new interviewers). As I there find, the evidence is
insufficient to show that management ever knowingly permitted
distributions at the desks of the trainees. Accordingly, I find no
merit to complaint paragraph 15 to the extent it attacks the “Ex-
ception” at item 2 pertaining to distributions at the desks of the
trainees.
In light of the foregoing, the merit I find to complaint para-
graph 15 is limited to the notification requirement specified in
item 1, “In General,” of Gallup’s May 27 memo (JX 2). Before
the advent of the Union’s organizing campaign, such distribu-
tions were unrestricted. Accordingly, to this aspect of com-
plaint paragraph 15, I find merit, and therefore find that the
May 27 notification requirement violated Section 8(a)(1) of the
Act. I shall dismiss the balance of complaint paragraph 15.
c. June 4, 1999—The disputed “too”
(1) Facts
About June 4, complaint paragraph 20 alleges, Gallup, by
Supervisor Uria-Ruiz, “instructed employees that they were
required to secure supervisory approval before distributing
union literature and that they were prohibited from such distri-
bution at new interviewers’ desks.”
By its answer, Gallup “partially admits,” but denies “the al-
legation concerning supervisory approval before distributing
union literature.” As its affirmative defense number IX, Gallup
avers:
At all material times, the Respondent has adhered to its pre-
existing policy concerning the prohibition against distributing
any material on new interviewer desks which is not directly
related to the orientation process for new interviewers, and
made no exception with respect to the distribution of either
pro-union or anti-union material.
Up to a point, the parties roughly agree on what happened,
and the meeting in question was tape recorded. Unfortunately,
there were half a dozen persons in the meeting, and frequently
several of them spoke at the same time. That is true of the
critical point on the tape.
The event begins about 5 p.m. that June 4 when Eileen Jun-
eau and a couple of the other members of the Union’s organiz-
ing committee were about to begin distributing copies of a un-
ion leaflet (GCX 31) to the desks of the interviewers. Before
she began passing out her copies, Juneau, pursuant to the rule
set forth in Supervisor Uria-Ruiz’s May 27 memo (JX 2),
showed supervisor Chad Murray a copy and notified him that
she and the others would be passing out copies of the flyer at
that time.8 Murray [or perhaps it was Roberts] said, “Okay.”
Juneau distributed her copies in a couple of areas, visited the
ladies room, and moments later learned that she was being
paged to report to mission control. At mission control Supervi-
sor Charles Davenport informed Juneau that she was to report
to supervisor Uria-Ruiz’s office. (3:625–628, 659–660, Jun-
eau)
Before we consider the events in Uria-Ruiz’s office, examine
first the union leaflet (GCX 31) that Juneau and the others were
distributing that June 4. On a legal-size sheet of paper, the
message of the leaflet urges employees to sign union authoriza-
tion cards, such as the copy of the one reproduced at the top of
the leaflet, so that the NLRB would conduct an election. The
card reproduced at the top of the leaflet appears to be a copy of
an authorization card of the United Steelworkers of American,
AFL–CIO, CLC. The copy (not overmarked by “Sample” or
“Not Valid” or some similar term) is marked off by border lines
on all four sides, and has lines for (among other items) name,
phone, address, date, and signature. Five questions and an-
swers appear under the reproduced card and pertain to the pur-
pose or effect of a signed card. Turn now to the meeting in
Supervisor Uria-Ruiz’s office.
Present in Uria-Ruiz’s office that June 4 were Supervisor
Uria-Ruiz, Supervisor Chad Murray, and telephone interview-
ers Eileen Juneau, Sherri Lee, Janice Rinehart, and Lynne
Zieler. (1:49–50, Uria-Ruiz; 3:628, Juneau; 8:1710–1711,
Rinehart) The voices of this meeting appear on a tape (GCX
45) running in Janice Rinehart’s tape recorder that was secretly
carried by Zieler. (5:902; 6:982, Zieler; 8:1710–1711,
Rinehart) Rinehart did a hand-transcription (RX 37, with-
drawn, 10:1943, 1947; RX 78, 16:3147) and submitted that to
the Houston office of NLRB Region 16. (10:1940–1942).
Other than making a glancing comparison at the trial, Rinehart
never made a line-by-line comparison of the typed transcript
(GCX 44) with her handwritten (RX 37) version. (10:1942)
Based on her brief scan of the 17-page (only one word on page
17) typed transcript (GCX 44) while in the witness chair,
Rinehart did testify that the typed version matches the tape.
(8:1712) That statement is mostly worthless. Had there been
only two participants, or were the tape of a speech, perhaps
someone with a very good memory could credibly testify about
such a matching. With this tape, and with several of the atten-
dees frequently overspeaking one another, such authentic-
cating testimony is less than valuable. The record also contains
Gallup’s 16-page typed version (RX 67) of the tape recording.
There are many differences between the two typed (GCX 44;
RX 67) transcript versions. Fortunately, that generally is not a
problem because at trial the parties announced that they rely on
their transcripts only as to the one critical point in dispute.
(10:1944–1947; 15:3053–3055; 16:3139–3144) To my ques-
tion of what I should do if I could not resolve the disputed point
by listening to the tape, the General Counsel replied that, in the
absence of the parties utilizing some enhancement system, I

8 Supervisor Heidi Roberts suggests that it was she to whom Juneau
gave such notification. (15:2957–2958, 2970–2971) I need not resolve
the difference.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1222
would have to rely on the “credibility of the witnesses.”
(16:3144)
By my fax to counsel on June 28, 2000, I informed them that
I had listened several times to the disputed portion. In relevant
part, I informed them:
This morning I played the disputed portion of GCX 45 (GCX
44 at 5; RX 67 at 4), that being the specific line, “To pass
around [too].” After several tries, all I can be sure of are the
first three words, “To pass around.” Then a lot of fast talking
by one or more persons. The “too” may or may not be there.
At this point it appears that I will have to rely on the witnesses
as to what was said.
A more recent effort yields a result no better than the one de-
scribed above, although some of the surrounding words can be
understood. While some enhancing service might have the
technical equipment and ability to separate and slow the voices
so as to permit piecing together who said what, without the
benefit of that service, the mass confusion of voices on the tape
at the critical point causes me not to rely on the tape concerning
the disputed “too.”
The disputed point arises in this fashion. As the two tran-
scripts reflect, for the first few minutes the group discusses the
reproduction of the union authorization card on the leaflet.
Supervisor Uria-Ruiz’s concern was whether the reproduction
should have “Void” printed across the face to keep it from be-
ing a valid blank card. This appears to be tied to her apparent
concern that authorization cards, as a form of solicitation,
should not be posted, and that there has to be permission to
post. (1:51; 15:3048–3049) Both transcripts then show, in
leading into the critical part, that Uria-Ruiz states that she has
seen what the (union supporters) are passing around. “No one
has come to me and said can we post it/this. And yesterday I
asked Heidi [Roberts], did somebody ask you because that’s
one of the rules, that they have to ask permission.” (GCX 44 at
4; RX 67 at 4)
Juneau responds, id., “To have it posted.” (Juneau’s re-
sponse is an agreement that, under the May 27 memo, any em-
ployee or employee group had to ask permission to post some-
thing on the bulletin board at mission control.) To this Uria-
Ruiz’s disputed passage reads, id. ”To pass around [too].” That
is, if the “too” is included, it would show Uria-Ruiz replying
that permission was required not only to post on the bulletin
board at mission control, but it also was required if there was
just going to be a distribution. (The latter would be contrary to
the May 27 memo which states, in paragraph 1, that notification
is required before distribution.)
The Government’s version contains the “too,” indicating that
permission (as well as notification) is also needed to distribute.
(GCX 44 at 5) Taking the opposite view, that Uria-Ruiz did
not say the “too” because Uria-Ruiz knew full well that permis-
sion was not needed to distribute, Gallup’s version does not
have the “too.” (RX 67 at 4)
The parties stipulated that the next four lines read (16:3139):
Juneau:But: But not to pass it out.
Uria-Ruiz: Yes ma’am!
Juneau: On that memo, no ma’am.
Uria-Ruiz: Okay.
Juneau’s reference to “that memo” is to Uria-Ruiz’s May 27
memo (JX 2), and Juneau is telling Uria-Ruiz that in the May
27 memo Uria-Ruiz specifically states that permission is re-
quired to post (on the bulletin board at mission control), but
that for distribution, only notification is required. At that point,
although the next line is not in full agreement on the two ver-
sions, Juneau apparently states that she will go get the memo.
Indeed, she testified that she went and retrieved a copy of JX 2.
(3:629–630) As both transcripts reflect, although their entries
are not fully in accord, Juneau returned shortly and apparently
showed the memo (JX 2) to Uria-Ruiz, followed by references
to notification and to posting. (GCX 44 at 6; RX 67 at 5) Al-
though even here the tape has several voices talking at once,
both transcripts are fairly close to agreement on what was said.
According to Juneau, when she brought in the memo and
pointed out the notification and the posting paragraphs (and this
seems to be reflected on the transcripts), Uria-Ruiz assertedly
replies (3:631, 672):
Well, I understand that, but you still have to get it approved.
The Government’s version of the transcript has Uria-Ruiz’s
response reading (GCX 44 at 6):
I understand that, [and here Gallup’s version picks up and
generally agrees for the rest of the response] but you see that’s
fine and the same thing goes to them, let me tell you one
thing. Can you lower it a little bit? The notification, the noti-
fication doesn’t give, doesn’t give the right to anybody to
come and say, this is what we are doing, (slammed paper
down on the desk) you think.
To this, on both transcripts, Juneau states that she does not
do it that way, and that she merely handed the item to Uria-
Ruiz. Supervisor Uria-Ruiz replies that she was describing
what she had seen in the past.
The point here is that both transcript versions, and especially
the Government’s, do not support Juneau’s testimony that Uria-
Ruiz said, “Well, I understand that, but you still have to get it
approved.” Indeed, the Government’s beginning phrase
(Gallup’s version has “CNDW”—cannot determine word(s),
8:1715—for the important opening phrase) virtually matches
Juneau’s testimonial version, “I understand that, but you . . . .”
First, it seems illogical that Uria-Ruiz, looking there at her own
memo of May 27 (JX 2), would say that after notification that
they still had “to have it approved.” That makes no sense. By
contrast, the transcript version shows that “the same goes for
them” is an apparent reference to the antiunion group that had
posted the “Grim Reaper” flyer (GCX 48), so named because it
contains (3:630) a sketch of the “grim reaper.” (When Juneau
left the meeting to get a copy of Uria-Ruiz’s May 27 memo, the
conversation in the meeting, as the transcript versions reflect,
turned to whether a supervisor had given permission for the
antiunion group to post the “Grim Reaper” flyer.)
In light of everything, I do not credit Juneau’s assertion in
this regard. On this point, I find that the Government’s version
of the transcript shows the response that Supervisor Uria-Ruiz
gave. (GCX 44 at 6)
That brings us back to the main point in dispute. Did Uria-
Ruiz also say that the rules (the rules stated in her memo of
GALLUP, INC. 1223
May 27) required permission not only to post, but also to dis-
tribute, as in, “To pass around, too”? Did Uria-Ruiz somehow
get confused and incorrectly restate the rules that just a few
days earlier she had issued her memo to make sure that “every-
one knows the policy”? (JX 2)
Note this testimony of Uria-Ruiz. Called as one of Gallup’s
last witnesses, Supervisor Uria-Ruiz testified that in the ex-
change quoted earlier (“Juneau: But, not to pass it out. Uria-
Ruiz:Yes ma’am!”) that she, Uria-Ruiz, was “agreeing with”
Juneau. Thus (15:3047):
Q. Okay. Please continue.
A. Okay. So Eileen says, “To have it posted.” And I
was saying, “To pass around you have to have prior notifi-
cation.” I didn’t even get to say that. I got interrupted.
Okay. And that’s when she said, “But not to pass it out.”
And I say, “Yes, ma’am.” I’m agreeing with her, that, yes,
not to pass around; they don’t have to go ahead and [ob-
tain] permission to pass around.
Q. So if you look at page 4 of Respondent’s 67 [GCX
44 at 5], Eileen Juneau was saying essentially that you
[any employee] didn’t have to get permission to distribute
literature, and you were agreeing with her.
A. Right.
There are two problems with this assertion by Uria-Ruiz that
by her “Yes ma’am” she was telling Juneau that Supervisor
Uria-Ruiz agreed that no permission was needed to distribute.
First, as we see in court testimony all the time, a question (or a
declaration) that contains a negative (as in, “But, not to pass it
out.”) virtually always, when the witness intends to confirm,
elicits a reply that is negative in form so as to conform, or af-
firm, the negative in the question. Here, therefore, the usual
affirmation would have been, “No ma’am”—unless the tone
would have indicated an intent to contradict. Judges frequently
have to urge the lawyers to omit negatives from their questions,
even on cross examination, in order to obtain clarity in the tes-
timony.
Second, clearly Eileen Juneau understood Uria-Ruiz’s “Yes
ma’am” to be a contradiction of what Juneau had just said (that
permission was not needed to distribute), and that is why Jun-
eau left to get a copy of Uria-Ruiz’s May 27 memo (JX 2).
Third, when she was testifying as a witness called by the
Government under FRE 611(c), Uria-Ruiz asserted that at the
meeting she said that as to distribution the people distributing
had to give prior notification. To this Juneau assertedly said,
“Oh, that’s not so.” Uria-Ruiz replied, “Yes, it is so.” Uria-
Ruiz there reports that Juneau left the office and returned with a
copy of Uria-Ruiz’s May 27 memo. Looking at the memo at
the meeting, Uria-Ruiz pointed out that one of the paragraphs
called for prior notification on distributions. (1:50–51, 54)
As to this third point, the transcripts do not support Uria-
Ruiz. At that point the participants were talking about permis-
sion, not notification. Even the tape can be understood so as to
confirm that after Uria-Ruiz completed her statement about
“ . . . because that’s one of the rules that they have to ask per-
mission” [to post], Juneau (as identified by “E” for Eileen on
the transcripts) says, “To have it posted.” To this Uria-Ruiz (as
identified by both transcripts) states, “To pass around” [too].
(The “too” added in GCX 44 is disputed.) As to the topics
being covered at this spot, I find the tape and the transcripts
more reliable than Uria-Ruiz’s version. I therefore do not
credit Uria-Ruiz on the point of the topic or her description of
what was said at that point.
Although Chad Murray, the other supervisor in the meeting,
testified as one of Gallup’s witnesses on other subjects, he was
not asked specifically about this meeting. He does assert that,
after May 27, he had no discussions with any employees about
the posting or distribution of union materials. (15:2981) In
fairness, Murray probably interpreted that question as asking
whether he, as the only supervisor present, had any such dis-
cussions.
Did Uria-Ruiz add the “too”? Eileen Juneau asserts that
Uria-Ruiz did. (3:629) And on redirect (3:667), “That I had to
get permission to pass it out and to post it.” This assertion,
however, strains under the weight added during cross-
examination. Thus, she also states that Uria-Ruiz said that
employees must give notice before making a distribution.
(3:660) And on recross examination (3:699), Juneau agrees that
Uria-Ruiz also said that the employees needed to notify (man-
agement) before making a distribution.
The problem with Juneau’s concessions about notification
statements is that the transcripts do not show Uria-Ruiz saying
that about notification. As already summarized, the brief refer-
ences to notification are after Juneau returns to the meeting
with a copy of the May 27 memo. When Juneau points to the
item there about notification, Uria-Ruiz shifts the focus slightly
by asking that the union group lower their gusto a bit when
delivering such notice, for notification does not mean that
someone can come in and “slam” (editorial addition by Janice
Rinehart at GCX 44 at 6, although internally consistent with
dialogue that follows) a flyer down on the desk while saying,
“This is what we are doing.”
The General Counsel claims that three of the four employees
(Juneau, Rinehart, and Zieler) testified “unequivocally” that
Uria-Ruiz said that, for distribution, not only was notification
necessary, but also permission. Sherri Lee, although present,
only recalled that whatever action the employees were seeking
to do was being prohibited by Uria-Ruiz. (Br. at 17–18) Hav-
ing surveyed the “unequivocal” report of Juneau, we turn now
to the testimony of Janice Rinehart (which, incidentally, is not
quoted on this topic or cited by any page reference in the Gov-
ernment’s brief).
Recall that Rinehart left the meeting moments after Juneau
went to get her copy of Uria-Ruiz’s May 27 memo. And, as
shown by the transcripts (GCX 44 at 5; RX 67 at 4–5), it was
Janice Rinehart who then raised the subject of whether man-
agement had given permission for the “Grim Reaper” flyer
(GCX 48) to be posted. Once that question was answered,
Rinehart departed right at the line ending with her editorial
addition, “I left the room.” (8:1712, 1717; GCX 44 at 5)
That means that Rinehart was present during the critical ex-
change that includes the disputed “too.” However, Rinehart is
never asked what was said, and she never addresses that spe-
cific exchange.
Lynne Zieler’s description is brief (5:900):
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1224
Gisela [Uria-Ruiz] told Eileen [Juneau] that she did not like
the way that she was handing out the pro-union literature [this
is Zieler’s individual interpretation of what the transcripts
show Uria-Ruiz said, but it certainly is not a quote] and she
was not getting permission to hand it out. And Eileen said,
“We do not have to have permission to hand the literature out.
We only have to have permission if we want to post it.” And
Gisela said, “No, ma’am.” And Eileen said, “I’ve got your
memo, I’ll go get it.” She left the office at that point.
While she does not quote a “too,” Zieler’s brief description
generally is consistent with Juneau’s (direct examination) ver-
sion as well as the version reflected on the Government’s tran-
script, including the stipulated lines following the disputed
“too.”
Sherri Lee initially stumbles in her description, at first show-
ing Juneau disputing as to the posting policy. But Lee corrects
herself to focus on the policy about distribution, asserting that
the May 27 memo “did not specifically state that we had to get
approval; only that we needed to show them [management] the
documents.” (6:1036) Of course, this does not report what was
said. Lee tells us that Juneau went for her copy of the May 27
memo. Moments later, asked whether the flyer under discus-
sion at the meeting was a posting or a distribution, Lee rambles
off on a tangent. At this critical juncture, and with no objection
to the leading nature of the question, the General Counsel asks,
and Lee replies (6:1037):
Q. But whatever you were doing with this document
this day, Uria-Ruiz was contending that it needed — that
the Company had to give permission first?
A. Yes.
Because the situation calls for clarity in the testimony, and
clarity is lacking here, I find Lee’s description to be of no
value, and I attach no weight to the “Yes” elicited by the Gen-
eral Counsel’s leading question. The General Counsel, sum-
ming up, asserts (Br. at 18), “The specific testimony of these
four witnesses [actually only two, for Rinehart does not address
the topic, and Lee, unable to recall any specifics, is unable to
add any clarity to the evidence] should be credited over the
self-serving denial of one supervisor.”
(2) Discussion
At this June 4 meeting, I find, Supervisor Uria-Ruiz, appar-
ently becoming momentarily confused, told the four telephone
interviewers (Eileen Juneau, Sherri Lee, Janice Rinehart, and
Lynne Zieler) that for distributions they needed permission as
well as notification. I make this finding without regard to the
disputed word “too.” Even without that disputed word, both
transcripts reflect that Uria-Ruiz’s phase “To pass around,” in
relation to the remarks immediately before and after, are ad-
dressing the subject of permission. Juneau asserts that such
applied to posting. Uria-Ruiz said, “To pass around . . . .”
Whatever Uria-Ruiz said at the end, or would have said, I do
not credit her testimony that it pertained to authorization and
(as I described earlier) that she agreed with Juneau’s next
statement, “But, not to pass it out.”
The fact is that the nature of the language on the undisputed
portion of both transcripts, and the undisputed fact that Juneau
went to get a copy of Uria-Ruiz’s May 27 policy memo, dem-
onstrates that Juneau obviously disagreed with Uria-Ruiz’s
statement. Accordingly, I find that Supervisor Uria-Ruiz said,
in effect, that distributions require permission as well as notifi-
cation.
Nevertheless, I find no merit to this portion of complaint
paragraph 20. First, the allegation avers that Uria-Ruiz singled
out “union” literature. Not so. Uria-Ruiz was repeating (incor-
rectly at that moment, as I have just found) the policy she had
announced in her May 27 memo. When Juneau, moments later,
returned with a copy of that May 27 memo, Uria-Ruiz fails to
correct her mistake, and her comments swerve a bit off course
to address the manner of notification. Neither Juneau nor any
of the others confront Uria-Ruiz at that point to demand that
she correct her earlier misstatement.
The point is, however, that Uria-Ruiz’s misstatement applied
to all distributions—not just to those of the Union. Accord-
ingly, paragraph 20’s allegation of disparity is without merit,
and I shall dismiss that first part of complaint paragraph 20.
The second part of complaint paragraph 20—that employees
were prohibited from distributing union literature at the new
interviewers’ desks—is, again, a mischaracterization of the
facts. Neither Supervisor Uria-Ruiz nor her May 27 memo (JX
2) singled out the distributions of the union supporters. And as
I find elsewhere respecting complaint paragraphs 9 and 15,
there is no evidence that, before the mid-May advent of the
Union, Gallup permitted distributions to the desks of trainees.
As I dismiss similar allegations elsewhere, I shall dismiss the
second part of complaint paragraph 20.
Having dismissed both parts of the paragraph, I now shall
dismiss complaint paragraph 20 in its entirety.
3. Supervisor Heidi Roberts
a. May 18 and June 1, 1999
(1) Introduction
Complaint paragraph 9 alleges that on May 18 and June 1,
1999, Gallup, by Supervisor Heidi Roberts, “instructed em-
ployees not to place union literature on new interviewers’ desks
and not to talk to those employees about the Union.” By its
answer, Gallup “partially admits” the allegation “but notes that
Supervisor Heidi Roberts instructed employees not to talk to
new interviewers about the union during ‘buddy sessions’
which are working time orientations sessions.” I summarize
these two allegations (in one count) separately, one pertaining
to distributions, and the other to the gag rule. The distributions
incident pertains to the May 18 date, and the gag rule pertains
to both dates.
(2) Distribution
(a) Facts
Since January 1998, Uria-Ruiz testified (2:338), Gallup’s
Houston office has designated one area of the office as the new
interviewer section (NIS), an area where new interviewers sit
during their 2-week training period. (1:52–53; 2:337–338,
Uria-Ruiz) Actually, as Lead Supervisor Heidi Roberts ex-
plains (15:2944–2945), the first 2 days for the trainees are in a
classroom, followed by 3 days of intensive training doing sur-
veys, with the aid of “buddies” (experienced interviewers serv-
GALLUP, INC. 1225
ing as mentors, 2:337; 3:546; 5:895), with the second week
remaining there to work.
Supervisor Heidi Roberts (who also is a trainer, 15:2932)
explains that the NIS consists of 18 cubes situated, on the floor
diagram in evidence (RX 38), at the upper center just to the
right of the breakroom. (15:2935, 2938) Three of those cubes
are used by two buddies and one blind interviewer. (15:2968–
2969). The area is designated by signs, hanging from the ceil-
ing, bearing the legends, “New Interviewers” and “Welcome
To Gallup,” and laminated notes, providing helpful hints about
work procedures, are posted in the booths in the section. The
rest of the office does not have “Welcome” signs, and the cubes
elsewhere have no laminated notes. (1:53; 15:2938, 2963)
Notwithstanding this designation of the NIS, Supervisor
Uria-Ruiz acknowledges that at any given time there probably
would be some experienced interviewers seated in the NIS in
order that they could have access to one of the autodialers pre-
sent in the NIS but not present at their own cubes. (1:53–54;
2:337) Roberts confirms (15:2969), as does Patrick Snyder
(5:862–864). Janice Rinehart testified that at least half the
employees seated in the NIS one night that she was there were
experienced interviewers. (8:1700–1701)
In fact, as dischargee Patrick Snyder informs us, there were
times when new employees would outnumber the cubes in the
NIS, and they would search for available cubes outside the
designated area. (5:852–853) As for the “designated” area,
there were no signs on the cubes (on the “desks”) in the desig-
nated area declaring that such cubes were for new interviewers.
(But Snyder, who testified at the rebuttal stage, did not there
dispute the testimony about the signs handing from the ceiling
nor did he contest the evidence about the laminated notes.) For
that matter, new employees did not wear anything, such as a
button, announcing that the employee was a “New Person”
(“New Interviewer”). Thus, it was typical that when employees
made distributions, copies simply were dropped “on each desk
as you go.” (5:851–853)
Around May 18, Janice Rinehart testified, Rinehart placed a
stack of union flyers, numbering about 200, on a shelf in the
dialer cubicle that she was using in the NIS. She also push-
pinned one of the flyers to the inside wall of the cube, and she
observed that Beverly Robinson, who was sitting behind her
that day in the NIS, also had push-pinned one of the flyers to
the inside wall of her booth. (8:1695–1698) Robinson con-
firms, although she places the date as about May 20, and re-
ports that the flyer was notice of a union meeting. (3:564–565)
As shown by a copy of her airline ticket and hotel receipt (RX
60), and as she confirms (15:2951–2952), Roberts left early the
morning of Thursday, May 20 for Stamford, Connecticut (fly-
ing into New York’s LaGuardia), and returned late Monday,
May 24. From this, I find that Robinson’s “about May 20” is
consistent with, and occurred on, the approximate date of May
18 as given by Janice Rinehart.
Although, on cross examination, Robinson could not confirm
receiving or reading Uria-Ruiz’s May 27 memo (JX 2) regard-
ing postings and distributions, she acknowledges that since the
May 27 date she has never been restricted from posting any-
thing in the breakroom. (3:601) (Respecting complaint para-
graph 9, the only relevance of the latter item is that it tends to
confirm that the incident of her posting the notice of a union
meeting in the cubicle actually took place before the issuance
of Uria-Ruiz’s memo of May 27, JX 2.)
On this May 18 occasion, and apparently while Rinehart was
on a break (8:1698), Robinson testified that she observed Su-
pervisor Roberts come by and remove the flyers that Robinson
and Rinehart had pinned to the inside of their cubes, and saw
Roberts take the stack of union notices that were on the shelf in
Rinehart’s cube. (3:565) As Roberts removed these items, she
told Robinson (3:565–566):
You are not allowed to post union literature in the new inter-
viewer section.
Moments later Robinson reported the matter to Rinehart.
With “Money” Anderson accompanying her, Rinehart and
Anderson confronted Roberts, informing Roberts that Rinehart
had paid for the copies (presumably the cost charged by
Kinko’s as Rinehart had done with earlier flyers, 8:1691–1692)
and that Rinehart wanted them back. Roberts said that she had
thrown them in the trash, but told Rinehart that she would re-
trieve the copies for her. About 20 minutes later Roberts came
to Rinehart, laid the copies on her desk,9 and told Rinehart,
“These cannot be in the new interviewers’ section.” (8:1698–
1699)
Supervisor Roberts freely acknowledges that this incident
occurred, although she does not recall the date. Roberts testi-
fied that a legal-size union flyer, “Organize, The Truth About
Strikes!” (GCX 28), could have been the flyer involved in the
incident. (15:2933–2936) Eileen Juneau identified the
“Strikes!” flyer (GCX 28) (it also gave notice of a union meet-
ing on May 23), which bears the handwritten notation “Friday
5–21–99,” as a flyer that she and others put on all the desks
(3:607–608, 657) and that she also posted on the bulletin board
by Mission Control (3:609–611).
Although the “Strikes!” flyer may not have been the one in-
volved in the removal by Supervisor Roberts of the 200 or so
copies from Rinehart’s “desk” in the NIS, I need not find that it
is the specific one. (Neither Rinehart nor Robinson identified
any exhibit as the specific flyer, although, as mentioned, Rob-
inson reports that the flyer announced the date of a union meet-
ing, and the union meeting date specified on General Counsel
28 is May 23, a date just a few days after the May 18 incident.)
At trial the General Counsel announced (3:611) that GCX 28
was offered in support of complaint paragraph 11, an allegation
about a May 21 incident that I reach later.
(b) Discussion
If, as Supervisor Uria-Ruiz testified (2:327, 360), before
May 27 Gallup actually had followed an unwritten policy pro-
hibiting distribution of nonwork material in the office work
areas, it would be home free. The evidence I earlier summa-
rized, however, is the other way as to the office generally. So
what about the NIS specifically? As to the NIS itself, the evi-
dence is a bit fuzzy. True, Uria-Ruiz reports her (hearsay) un-
derstanding that Michael Lee, when distributing the prayer-

9 The “desk” inside the cubes is a horizontal board about 14 inches
across and about 40 inches side to side. (8:1696)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1226
meeting flyer (RX 17) on May 13, retrieved it from the NIS
when told he could not distribute it there (2:338), but there is no
objective evidence, such as documentation of warnings given
(2:338), or a copy of a memo that issued, bearing a date that
precedes the mid-May advent of the union organizing.
For its strongest evidence of no restriction respecting the
NIS, the Government apparently relies on the distribution by
Janice Rinehart of the water pillow flyers (GCXs 52, 53), and
the “mixed use” (that is, by both experienced employees as well
as the trainees) of the NIS. Rinehart testified that in September
1997 she placed copies of the color flyers on all the desks after
receiving permission from Supervisor Barlow to make the dis-
tribution. (8:1701–1703; 10:1935) Presumably “on every
desk” (8:1703) includes the cubes in the NIS. On one hand, it
is not at all clear that Barlow’s approval to distribute meant that
the distribution could extend to the cubes in the NIS. On the
other, however, in the absence of evidence as to some practice
or understanding of an articulated policy, permission to distrib-
ute, with no limitation stated, reasonably is interpreted as per-
mission to distribute everywhere. However, recall Uria-Ruiz’s
testimony that the NIS has existed since January 1998. (2:338)
According to Janice Rinehart, she distributed her color flyers
on the water pillows some 4 months earlier. (8:1701) Thus,
Rinehart’s color flyers do not constitute a test of the integrity of
the NIS.
The “mixed use” concept perhaps could be a valid point ex-
cept for one thing. Recall that Uria-Ruiz’s May 27 memo
about distributions and postings (JX 2) provides an exception as
to the new interviewers desks. Not “area,” but “desks.” Now
Uria-Ruiz, in her testimony (1:50–52; 2:337–338), seems to use
the terms “area” and “desks” interchangeably, and certainly
Supervisor Roberts made no distinction on May 18 between the
NIS and the desks located in the NIS. But the written policy
does make a distinction, and that distinction could make a dif-
ference. Thus, if, as the May 27 written policy states, the (pre-
existing) exception applied to “desks,” then an experienced
employee seated in the NIS reasonably might not be considered
as seated at a desk that is off limits to any distribution. But if
the exception applied to the NIS as a whole, then no distribu-
tions could ever be made inside the perimeter of the NIS, even
if on a given day everyone seated at the cubes in the NIS were
experienced interviewers.
The short answer would seem to be that Gallup framed and
issued its memo of May 27, and any ambiguity in the language
chosen should be construed against it. The fact is, however,
that there is nothing ambiguous about the term “desks,” nor is
any practical confusion created by reading the memo on the
basis that the term “desks” was intended to be a distinction
from the terms “area” or “section.” Once again, there is a prac-
tical reason for interpreting this as an intended distinction.
Recall the testimony that at times some of the trainees had to
find cubes outside the NIS. Would that make their temporary
location, outside the NIS, as fair game for any distributions? It
would not have to, and surely, possibly with some clarification
issued or markings on the desks themselves, Gallup could have
notified the employees that a trainee’s desk was off limits pe-
riod, whether located inside out outside the NIS. Similarly, if
an experienced interviewer had to work in the NIS in order to
have an autodialer on a given day, then that use would remove
that desk from the May 27 rule’s exception, and the experi-
enced employee could take with her a photo of her family and
push-pin that photo (or a union flyer) to the inside wall of the
cube without violating the May 27 memo.
Turning back to the incident, recall that, contrary to the stan-
dard practice, when posted items are removed, of placing the
removed items in the desk drawer, Supervisor Roberts threw
Rinehart’s private property into the trash. Clearly, I find, Rob-
erts would not have thrown family photos or flyers announcing
a church bazaar, the sale of a car, boat, or furniture, into the
trash. Roberts, I find, would have preserved such items. But as
the flyers pertained to the Union, then, in the view of Supervi-
sor Roberts and, I find, of Gallup, they were garbage and be-
longed in the trash. Does this literal trashing (even though on
later demand, retrieved and returned) add weight to the Gov-
ernment’s case? Certainly, I find, it shows animus.
Note this. The allegation of paragraph 9, first part, is one of
distribution (“not to place union literature on new interviewers’
desks”), whereas the evidence describes action against posting
and the mere possession of union flyers in the NIS. This is
something of a variance (unobjected to) from the allegation, but
I find it an immaterial variance under Board law. Thus, the
matter was fully litigated, and the allegation pled and any viola-
tion found on this are closely linked. Parts Depot, Inc., 332
NLRB 670, 674 fn. 22 (2000).
In short, I find that experienced interviewers did not lose
their right—even if the May 27 written policy as to the NIS was
preexisting (as I have described, the evidence does not show
whether it was or not)—to possess union literature even when
seated at a cube in the NIS, or to post a Union flyer on the in-
side wall of the cube where they were working in the NIS.
Janice Rinehart and Beverly Robinson were not sharing cubes
with trainees, nor were they working with trainees. They were
at their own temporary cubes that happened to be in the NIS.
The animus reflected in Supervisor Roberts’ trashing of Janice
Rinehart’s (and Beverly Robinson’s) personal property by the
disparity of treatment accorded that property (union flyers), as
opposed to the traditional preservation of private property, fully
reveals that the real reason Gallup removed and trashed the
leaflets was not that such personal property was nonwork mate-
rial located within the NIS, but that it consisted of flyers an-
nouncing the date and place of an upcoming Union meeting
(and perhaps describing the Union’s position on one or more
other topics).
Further supporting this finding, which I make, is the fact that
Supervisor Roberts simply ignored the in-your-face-presence of
antiunion T-shirts and buttons being worn by some of the bud-
dies (those who were opposed to the Union) right in the pres-
ence of the new interviewer trainees during the training ses-
sions themselves—when the union supporting buddies were not
wearing any union insignia. Even though such T-shirts and
buttons did not violate the letter of the (future) May 27 memo,
ignoring and permitting their presence right in front of the
trainees certainly violated the claimed basis for Gallup’s “long-
standing” policy exception about distributions (or talking) as it
supposedly pertained to need to protect the trainees from all
intrusions of nonwork matters.
GALLUP, INC. 1227
In short, as Janice Rinehart and Beverly Robinson were free
to post, and possess, union flyers in their regular cubes (be-
cause Gallup policy and practice permitted employees to have
and to post virtually anything in the privacy of their own
cubes), their posting of and possession of such in their tempo-
rary cubes in the NIS was likewise protected conduct. This is
particularly true here with the showing of animus displayed in
the trashing of the union flyers, and when Gallup permitted
antiunion “buddies” to wear loud antiunion T-shirts and buttons
right in the face of the new interviewer trainees when the Union
supporters were not wearing any union insignia. Such trashing
and such permissive conduct clearly demonstrated that Gallup’s
“longstanding” policy in fact was newly created in order to
suppress the protected activities of the supporters of the Union.
Accordingly, I find that by such May 18 removal of the Union
flyers by Supervisor Roberts, Gallup violated Section 8(a)(1) of
the Act by denying employees the right to post and to possess
such union flyers in circumstances where, under standard
Gallup practice, nonwork materials could be posted and pos-
sessed, all as alleged by complaint paragraph 9, as modified at
trial by the full litigation of the trial modification.
(3) The gag rule
(a) Facts
Lynne Zieler, one of the four dischargees in this case,
worked as a telephone interviewer, and also served as a
“buddy”—a mentor for the new interviewers. (5:884, 895)
Supervisor Heidi Roberts was, and is, a trainer for the new
interviewers. (15:2932, 2944) As the trainer for her classes,
Supervisor Roberts also instructs the buddies in their duties and
responsibilities. Usually before every training session with the
new interviewers, Roberts held a briefing with the buddies.
(15:2940–2941)
Zieler attended a buddy briefing held about May 18 at which
Supervisor Roberts was the trainer. (5:896) There were bud-
dies present who supported the Union, and also buddies who
opposed the Union. (5:953) Zieler reports that the prounion
buddies were not wearing, and never wore, union buttons, in-
signia, emblems, or T-shirts. (5:899, 952–953, 955)10 In con-
trast, the buddies opposed to the Union were wearing T-shirts
showing big circles around the word “union” and a red slash
mark through the circle. These antiunion buddies also were
wearing (antiunion) buttons. (5:896, 897) Zieler asserts that
Roberts told the prounion buddies that she was counting on
them not to talk to the new interviewers about anything to do
with the Union, that she did not want to scare them (the new
interviewers), nor were they to place any literature on the desks
of the new interviewers. (5:896) Specifically addressing the
prounion buddies, Roberts said (5:954):
I’m trusting you guys to not talk about the Union during
buddy sessions and talk about the Union, in fact, to the new
interviewers or place anything on their new interviewer desks
because we do not want to scare them away.

10 Zieler understands that, after she and Janice Rinehart were fired,
the remaining members of the union organizing committee wore but-
tons with the photos of Zieler and Rinehart. (5:953) Testimony of
other witnesses confirms this understanding.
Even so, Zieler admits that Roberts said that she did not want
anyone talking about the Union during the (training) time, but
simply wanted the buddies to talk with the new interviewers
about how to do their jobs. (5:954) Yet, Roberts did not tell
those wearing antiunion slogans, buttons, or T-shirts that they
were not to wear any such items when they began their training
sessions with the new interviewers. (5:897, 954)
About June 1, dischargee Sherri Lee reports, Supervisor
Roberts told Lee essentially the same in a one-on-one conversa-
tion that Roberts initiated in the reception area before a training
class for the new interviewers. Roberts explained that she
wanted to avoid confusing or frightening the new interviewers
by such union talk. Lee told Roberts that she had no intention
of talking to the new interviewers about the Union during train-
ing sessions, and that she would place no flyers on their desks if
the antiunion interviewers likewise refrained from such distri-
bution. (6:1028–1030; 7:1329–1332)
For her part, Supervisor Roberts confirms that she did cover
this topic with the buddies, except she told all the buddies—
about 10 or 12 present—and she dates the occasion as the brief-
ing session before the June 3 class. She does not remember
whether anyone was wearing buttons, emblems, or insignia
favoring or opposing the Union. Roberts also does not think
that she saw the Union’s May 16 letter (RX 5) bearing the sig-
natures of the 20 members of the Union’s in-plant organizing
committee, and thinks that she did not see that letter until a
month or two before she testified. Even then she did not read
the entire letter. She believes that her June 3 statements to the
buddies was the only occasion that she addressed that subject
with the buddies. And on that occasion she explained that the
buddies were free to talk about the Union with the new inter-
viewers during breaks, but not during the training sessions
themselves, for that is work time for both the trainees and the
buddies, so they were not to discuss the Union during that
working time. (15:2939–2944)
(b) Complaint paragraph 18
Respecting the gag rule, a separate allegation appears to du-
plicate this issue. Thus, complaint paragraph 18 alleges that, on
an unknown date in about May 1999, immediately prior to a
training session, Gallup, by Supervisor Heidi Roberts, told
buddies “that it was impermissible to mention union to new
interviewers during training sessions.” (Roberts testified that
her earlier testimony applied to this allegation. 15:2953–2954)
By its answer, Gallup denies and affirmatively pleads that it
followed its preexisting policy that prohibited, during new in-
terviewer training sessions, discussion of any nonwork topics
[emphasis added], and made no exception for talk regarding the
Union. On brief (Br. at 45), Gallup acknowledges that Supervi-
sor Roberts admits telling buddies that they were not to talk
with new interviewers about the Union (during training ses-
sions), but that she disputes other claims.
At trial the General Counsel explained that testimony by in-
terviewer Glen Lambert was offered in support of complaint
paragraph 18. (3:517) Lambert reports essentially the same
rule of no talking, and no distributing of literature, about the
Union that the other testimony reflects (3:517, 521, 545, 547–
548), with two differences—Lambert’s description does not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
show Roberts as singling out the union supporters, and he re-
calls (3:517, 548) that Roberts told the buddies they were not to
wear any buttons. Lambert recalls this latter point because
Sharri Patty was wearing a red and white antiunion button of
some 2.5 inches (diameter) and she never removed it the entire
evening and nothing was said to her about removing it. (3:518–
519, 548) Lambert did not ask any supervisor why Patty was
permitted to wear the antiunion button because, he explains, he
is not very confrontational. (3:548–549)
Although I generally credit Lambert, I find that he was mis-
taken about a reference to buttons, perhaps mentally including
that with the no talk and no literature. I note that he seemed
less than positive about it on cross-examination (3:548)—“I
would say yes;” “I will say yes.” And his tone was not even as
strong as those words. Moreover, Lynne Zieler testified that
Supervisor Roberts did not address the matter of what the bud-
dies wore. (5:899) And in the individual conversation that
Sherri Lee had with Roberts, Lee does not describe Roberts as
mentioning anything about the wearing of buttons or other in-
signia.
Of course, Lee’s conversation with Roberts was private, but
the absence of any buttons remark there, and the absence of any
reference to buttons, insignia, or T-shirts in Zieler’s version,
suggest a pattern that is more consistent with a finding that
buttons simply were not mentioned. I find that they were not
mentioned, but I do not credit Roberts that she does not re-
member seeing any buttons or insignia. I also find that Super-
visor Roberts addressed her comments to all the buddies.
As for the date or dates of Roberts’ comments at the buddy
briefing or briefings, I credit the testimony as given. Thus, and
contrary to the version of Roberts that she gave this instruction
only once, I find that she gave it at least twice at group brief-
ings (once around May 18, then again, as Roberts concedes, on
June 3), plus in the individual conversation with Sherri Lee
about June 1. It makes sense that Roberts would have voiced it
at an early stage—during May—and then later, after Supervisor
Uria-Ruiz issued the memo (JX 2) about distributions (nothing
to be placed on the new interviewer desks) and postings.
(c) Discussion
Based on these facts, as I have found, what is the legal con-
clusion? Gallup argues (Br. at 152) no violation on the basis of
its (formerly oral, now written as JX 2) policy prohibiting dis-
tributions to new interviewer desks, with the reasons for the
policy being “that the new interviewers need to concentrate on
their work, learn without interruption and review their training
material (15:2944, Roberts; 2:337–339, Uria-Ruiz).”
As Gallup cites, Roberts and Uria-Ruiz did so testify. That
reason is an impressive and persuasive basis for the policy—if
the testimony is credited. However, in the cited testimony of
Uria-Ruiz and Roberts, Roberts closes her description of for-
bidden things—things that Gallup wanted to keep away from
the trainees so as not to confuse them or disturb their training—
with “or looking at pictures.” (15:2944)
If Roberts and Gallup were so interested in keeping the new
interviewers totally focused on their training during working
time that they did not want the trainees to see any (nonwork,
presumably) “pictures,” then why did Supervisor Roberts and
Gallup stand mute when the buddies opposing the Union wore
their antiunion T-shirts and buttons (presumably the same large,
2.5 inch, button that Sharri Patty wore) during the training
classes? As Lynne Zieler credibly testified, all that antiunion
insignia—permitted by Gallup—simply prompted the trainees
to ask, “What is going on here?” (5:954)
In short, I do not credit either Uria-Ruiz or Roberts as to this
work-only focus of the training sessions. Thus, there is no
evidence (aside from the discredited testimony of Uria-Ruiz
and Roberts) even suggesting that the trainees were forbidden
from talking about anything other than work during the work-
ing time of their training sessions (and notwithstanding the
portion of Gallup’s answer, set forth above in bold, claiming
that such in fact preexisted). On the other hand, neither is there
any evidence that the new interviewers were allowed to talk
about nonwork topics during the working time of their training
sessions. Although there is evidence that some trainees would
wind up seated outside the NIS during all or part of a particular
evening, or even be found wandering around looking for a cube
to claim, even that evidence does not reflect that those individ-
ual trainees were free to talk about nonwork subjects during the
actual training periods.
In short, what I find here is a failure of the Government’s
evidence to establish that, before the advent of the Union, the
new interviewer trainees, as distinguished from the regular
interviewers, were permitted to talk, when time permitted,
about the weather, sports, the theater, church bazaars, sales of
cars, dogs, furniture, or Girl Scout cookies, or any other non-
work topic of conversation. The Government must show dis-
parity. Thus, in the cases of Opryland Hotel, 323 NLRB 723,
728–729, 731 (1997); Industrial Wire Products, 317 NLRB
190, 190 (1995); and Teksid Aluminum Foundry, 311 NLRB
711, 713–714 (1993), the evidence reflects that employees
could talk about other nonwork topics, but not about the union.
Gag rules (no union talk allowed) in those circumstances vio-
late Section 8(a)(1) of the Act.
Nor does it seem reasonable to infer that, even though regu-
lar employees at Gallup are free (if they are not on a call with a
consumer) to talk about nonwork topics during their working
time, the trainees (who for a few days must focus intensely on
their training) also share in that freedom to talk during working
time. Positive evidence is required. No disparity having been
shown respecting the new interviewers, I shall dismiss com-
plaint paragraphs 9 (as to the no talking aspect) and 18.
b. May 19, 1999
Complaint paragraph 10 alleges that, about May 19, Gallup,
by Supervisor Heidi Roberts “removed union flyers from the
walls of employees’ cubicles and from employees’ desks, in-
structing employees that they were not allowed to post union
literature in the center.” [Emphasis added.] By its answer,
Gallup denies. Although her testimony is not fully positive,
Supervisor Roberts also essentially denies. (“I don’t remember
that. No.” 15:2950) The General Counsel (Br. at 11) names
Beverly Robinson and Janice Rinehart as the supporting wit-
nesses for this allegation, and gives a short description of their
testimony in words tracking the language of the allegation (no
transcript volumes or page numbers cited).
GALLUP, INC. 1229
The apparent reason that the General Counsel omitted any ci-
tation to the record, where the assertedly supporting testimony
might be found, is that the only testimony that Rinehart and
Robinson gave about this applied to complaint paragraph 9 and
the NIS (not to the “center”)11—a matter I already have ad-
dressed. When the Government’s lawyer, after studying the
record, finds no record support for a complaint allegation, the
proper course of action is to move to withdraw the allegation
based on lack of evidence. The better and more courteous prac-
tice is not even to wait until the brief to do this, but to do so by
a separate document in advance of the brief so that opposing
counsel does not waste time briefing the matter. But to treat it
in the brief as if (by an attempted verbal sleight of hand, actu-
ally) there is supporting testimony (but carefully not citing to
the pages of the transcript), when there is none, is highly im-
proper. Better is expected of a lawyer, and particularly of a
prosecutor for the Government.12
In the absence of any supporting evidence for the allegation,
I shall dismiss complaint paragraph 10.
c. Confiscated and discarded union literature
“In May 1999,” complaint paragraph 16 alleges, Gallup, by
Supervisor Heidi Roberts, “confiscated and discarded union
literature from a new interviewer’s desk and told employees
that union literature was impermissible in that area.” By its
answer, Gallup “partially admits” the allegations “but denies
the allegations concerning confiscation and discarding the un-
ion literature in question.” Rather, Gallup alleges, “such litera-
ture was provided by Supervisor Heidi Roberts to union sup-
porter Janice Rinehart at her request.”
This allegation is almost a duplication of the first portion of
complaint paragraph 9, as to which I have found merit. As the
supporting evidence is the same, I find merit to this allegation
which specifically alleges the confiscation and discarding of the
union literature. Even though the material later, on request,
was retrieved from the trash and returned to Rinehart, such
action would tend to inhibit employees in the exercise of their
protected rights and therefore constitute a violation of Section
8(a)(1) of the Act. See Albertson’s v. NLRB, 161 F.3d 1231,
1238 (10th Cir. 1998). I therefore find merit to complaint para-
graph 16 (and to the conclusory paragraph associated with it,
paragraph 27).
d. Told trainees to report union talk
(1) Facts
“On an unknown date about May 1999,” complaint para-
graph 19 alleges, Gallup, by Supervisor Heidi Roberts, “in-
structed new interviewers to report to their supervisors immedi-
ately if anyone spoke to them concerning the Union while they
were working.” Admitting this allegation, Gallup argues that
such action does not constitute a violation of the Act.
Supervisor Heidi Roberts testified that this event occurred on
either June 1 or 2. She told that evening’s class of some 12 to

11 As alert opposing counsel cover in Gallup’s reply brief at 36–40.
12 In an unfair labor practice trial, the General Counsel is cast in the
role of a prosecutor. Zurn/N.E.P.C.O., 329 NLRB 484, 485 fn. 2
(1999).
20 trainees that there was an organizing drive in progress, and
that while they were free to talk about it on nonworking times,
if anyone talked to them for or against the Union during their
working time then please tell a supervisor. Roberts did not
limit the application of her instruction to talk favoring the Un-
ion, and she recalls no complaints being registered thereafter
from any trainee that someone spoke to them (about the Union).
(15:2954–2955) Note that Roberts’ request that they tell a
supervisor about someone speaking to them about the Union
during “working time” is potentially broader than the allega-
tion. The latter specifies that “they” be “working,” whereas
Roberts’ actual request specifies “working time”—a concept
that includes brief interludes when an employee may be waiting
for her computer to complete an operation or even resting
briefly before dialing the next survey call. However, the dis-
tinction is so slight that I shall treat it as a distinction without a
difference.
Roberts also testified that only work materials are allowed in
the NIS. And (15:2944):
They [the new trainees] go through a pretty intense 3-day
training, and they need to concentrate just on doing the sur-
veys. This is their first time on the phones, so I’d like them to
concentrate on just the quality of their surveys and not worry
about looking at different things, reading different things on
the walls or looking at pictures.
(2) Discussion
Unfortunately, no witness addressed whether the trainees,
especially during their first 3 days (when this incident occurred,
per Roberts), could talk about anything besides work during
their actual working time (that is, between survey calls). With
such intensity of focus on their survey calls, it seems unlikely
that they would have had much time, between calls, to do much
personal talking. The problem is that there simply is no evi-
dence covering the point. To the extent that there was time for
two or more trainees to have a short personal conversation,
there is no evidence that they were prohibited from talking
about the weather, football, a national beauty contest, a popular
television show, or a national political race.
If, during short interludes between survey calls, the trainees
were prohibited from engaging in personal conversation about
any nonwork topic, then, of course, the union topic, not being a
privileged subject, likewise would be banned. But if other
nonwork matters could be discussed, even briefly, then it would
be unlawful to ban only the Union as a topic of personal con-
versation during working time. Frazier Industrial Co., 328
NLRB 717, 717–719 (1999), enfd. 213 F.3d 750, 755, 759, 761
(D.C. Cir. 2000). Thus, “An employer may lawfully forbid
employees to talk about a union during periods when they are
supposed to be working, if that prohibition also extends to all
other subjects not associated or connected with their work
tasks.” Teksid Aluminum Foundry, 311 NLRB 711, 713
(1993). And see the earlier discussion about gag rules and the
cases cited, including Opryland Hotel, 323 NLRB 723, 728–
729, 731 (1997). Stoody Co., 320 NLRB 18 (1995), cited by
Gallup (Br. at 156), involved a no solicitation and no distribu-
tion rule. Moreover, there the judge pointed out that the con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
duct did not involve a “prohibition of conversation about the
Union.” 320 NLRB at 29.
Taking the record as it is, and assuming that the trainees in
fact had always been banned from any nonwork conversations
during working time, would that status defeat the Government’s
allegation? Stated differently, with such a universal ban in
place, would it be unlawful for a supervisor to tell the trainees
to report to a supervisor any attempt by someone (that is, by
another trainee or a buddy) to talk to them, or any one of them,
about the Union? First, notice that engaging in union talk does
not have to be solicitation to join the Union or to sign a union
card or even to promote the Union. It simply could be a basic
question asked by one trainee of another, “What is a union?”
[In Texas, that question would not be so unusual.] That ques-
tion would not violate any separate no solicitation rule. Val-
mont Industries, 328 NLRB 309, 317–318 (1999) (warning of
Fontenot), enfd. on point 244 F.3d 454, 471–472 (5th Cir.
2001). Second, in both its primary and reply briefs, Gallup has
too narrow a focus by arguing that Supervisor Roberts acted
with complete equality as to the one topic of Union (by refer-
ring to talk “for or against” the Union). The proper focus is
wider—whether there was equality as to all topics, and whether
singling out the Union as a topic constituted unlawful disparity
of treatment. Unfortunately, Gallup does not address this
proper focus of the issue.
Thus, the real question is whether Supervisor Heidi Roberts’
request that the trainees report any effort to talk about the Un-
ion during working time was unlawful because the subject mat-
ter to be reported was limited to the Union and did not include
other examples to reinforce the concept of a universal ban, not
simply a ban against talking about a single topic, the Union.
By singling out the Union topic, did Gallup, by Supervisor
Roberts, thereby violate Section 8(a)(1) of the Act? I conclude
that the answer is yes. Such singling out, by stressing only the
Union as a topic to be reported, violates Section 8(a)(1) of the
Act. See Greenfield Die & Mfg. Corp., 327 NLRB 237, 238
(1998), and Meisner Electric, 316 NLRB 597, 597 (1995),
enfd. mem. 83 F.3d 436, 437 (1996). Accordingly, I find merit
to complaint paragraph 19.
4. Supervisors Heidi Roberts and Chad Murray—May 21, 1999
a. Introduction
Complaint paragraph 11 alleges that about May 21 Gallup,
by supervisors Heidi Roberts and Chad Murray, removed
posted union flyers from the bulletin board by “Mission Con-
trol.” Gallup denies. I treat the supervisors separately.
b. Supervisor Heidi Roberts
As mentioned earlier respecting the “Strikes!” flyer (GCX
28), interviewer Eileen Juneau testified that she helped distrib-
ute copies of that flyer to all the desks on May 21, and that she
also posted a copy on the bulletin board by mission control.
(3:607–609, 657–659) Respecting the copy that she posted on
the bulletin board, Juneau testified that she observed Supervisor
Roberts remove it shortly after Juneau posted it. (3:610) Rob-
erts denies, explaining (as described earlier) that she left early
on May 20 for Connecticut and returned to Houston late on
May 24 (15:2951–2952)—as copies of her airline ticket and
hotel bill (RX 60) reflect.
Arguing that Juneau should be credited, because Juneau per-
sonally observed the removal by Roberts, the General Counsel
further contends that Juneau’s testimony “offered only an ap-
proximate date.” (Br. at 12) Not so. Unlike the “about May
21” date in the allegation, Juneau’s testimony at every point is
specific—it was May 21. Not only that, but the handwritten
notation on the flyer (GCX 28), apparently recording the date,
reads “Friday, 5–21–99.”
Juneau perhaps was mistaken regarding whom she observed,
for Supervisor Uria-Ruiz asserts that, from May 20 to June 30,
when she passed by the mission control bulletin board and saw
a new flyer posted, usually in the wrong place, she removed it.
But instead of discarding it, she moved it to the “Other” section
where, as reflected in the May 27 memo (JX 2), employees may
post items when advance permission has been obtained by a
supervisor. Uria-Ruiz testified that the Union supporters rarely
asked in advance, whereas the antiunion group always asked,
and despite the union group’s failure to ask permission before
posting, she nevertheless moved several union flyers over to the
“Other” section. And, Uria-Ruiz testified, she told this to Jun-
eau and Sherri Lee at a meeting on June 4. (1:49–54; 2:335–
336, 349–350)
I need not determine what actually happened here. It is
enough that the evidence relied on by the General Counsel does
not support the allegation. To the extent that Juneau observed
someone removing a flyer from the mission control bulletin
board on May 21, that someone may have been Supervisor
Uria-Ruiz in the process of moving the flyer to the “Other”
section of the bulletin board, although I make no finding re-
garding the matter. The Government’s attempt, on brief, to go
beyond the date of May 21 simply invites speculation as to
some other posting date, contrary to the evidence specifying the
date of May 21. Accordingly, I shall dismiss complaint para-
graph 11 as to Supervisor Heidi Roberts.
c. Supervisor Chad Murray
Eileen Juneau credibly testified that, on May 24, she posted a
copy of an “It’s The Law” (GCX 29) handbill on the mission
control bulletin board and placed copies on the desks of the
interviewers. About 10 minutes after she posted the copy on
the mission control bulletin board, Juneau saw Supervisor Chad
Murray remove it, but she had no conversation with him.
(3:611–613, 657–658) Supervisor Murray’s “I don’t ever recall
doing that” (15:2976) was unpersuasive, and I do not credit
him. There is no testimony that Juneau asked a supervisor for
permission to post the document on the mission control bulletin
board, and Murray did not testify that he removed the document
because no permission had been requested or granted.
Indeed, there is no evidence specifically rebutting Uria-
Ruiz’s credible testimony (1:48; 2:347) that permission has
always been required to post any material in the “Other” sec-
tion of mission control’s bulletin board. No witness testified,
for example, that he or she personally posted something on the
mission control bulletin board without obtaining permission
from a supervisor and that a supervisor knew about the posting
and did nothing or that the posting was there so long that a
GALLUP, INC. 1231
presumption arises that management would have known about
it. Generic references to posting (by someone) on the mission
control bulletin board (6:1038, Lee) do not rebut Uria-Ruiz’s
testimony. And postings on the “walls by the bulletin board”
(4:681, Snyder) are not postings on the mission control bulletin
board.
Gallup’s policy requiring permission to post anything on the
“Other” section of the mission control bulletin board predated
advent of the union organizing campaign, and there is no evi-
dence of record showing that management ignored breaches of
the policy until union supporters began posting items favoring
the Union. On the other hand, there is no testimony that Super-
visor Chad Murray removed the posting only because no per-
mission had been sought or granted. Given the additional evi-
dence shown later respecting complaint paragraph 14 (reflect-
ing a purpose more consistent with censorship than with ensur-
ing the integrity of management’s control of its property), it
appears that Supervisor Chad Murray removed the document as
a form of censorship rather than as an expression of manage-
ment’s legitimate control of access to its property. As the con-
tents of GCX 29 cover protected matters (there is no contention
that GCX 29 is unprotected), and as Gallup has approved post-
ings of sales and other employee matters, Supervisor Murray in
fact discriminated against this posting because, I find, it would
tend to support the Union’s side in the organizing campaign.
Accordingly, I find merit to that portion of complaint paragraph
11 dealing with the conduct of Supervisor Chad Murray on
May 24, which date, I find, is “about May 21.” (Gallup ob-
jected to the receipt of GCX 29 on the basis of a variance from
the date alleged. 3:612–613)
5. Supervisor Chad Murray
a. Introduction
Several additional allegations pertain to Supervisor Chad
Murray. I summarize the facts of each allegation before dis-
cussing the group.
b. May 21, 1999
About May 21, complaint paragraph 12 alleges, Gallup, by
Supervisor Chad Murray, “removed posted union flyers from
the walls of employees’ cubicles.” By its answer, Gallup de-
nies, and affirmatively pleads that it continued to apply its pre-
existing policy concerning posting and distributions, except that
after Mike Lee’s mid-May distribution of a religion-oriented
material, Gallup [by JX 2, the May 27 memo from Uria-Ruiz]
“relaxed its policy and only required prior notification for the
distribution of non-work related literature in its facility.” Inter-
viewer Marion Trovato testified in support of this allegation.
About May 21, Trovato testified, Lynne Zieler posted some
union literature on the outside of her cubicle, of Trovato’s cubi-
cle, of Catherine Wagley’s cubicle, and of a vacant cube.
Zieler confirms. (5:890) Shortly before 10:30 p.m. that eve-
ning, Trovato observed Supervisor Chad Murray come by and
remove the dozen or so union papers that Zieler had posted.
When Trovato asked Murray what he was doing, he replied,
“I’m taking this stuff down.” After Murray had removed it all,
he left. (2:367–370, 385–387) Zieler learned of this on return-
ing from a break. (5:891)
Testifying that he had read complaint paragraph 12, Supervi-
sor Murray asserts that he removed copies of the Union’s flyer
about strikes (GCX 28) that were lying on vacant desks, and
from desks where the interviewer was not present, but “Not that
I recall” as to removing any materials from the exterior walls of
interviewers’ “desks” [cubes] about May 21. Asked whether he
recalled having any discussion with Marion Trovato about his
(Murray’s) removing posted union materials, Murray answered,
“No.” (15:2977–2978) Murray concedes that when he re-
moved papers from a desk in the past that his purpose was al-
ways to tidy up the place before a client’s visit or to clean off a
vacant desk before a new employee arrived to be seated there.
(15:2985–2987)
Resolving the factual matters, I credit Marion Trovato and
Lynne Zieler. Supervisor Murray’s testimony “Not that I re-
call,” and, similarly, his answer to the question asking whether
he recalls a conversation with Trovato about removing posted
materials (“No,” he does not recall), are feeble efforts com-
pared to Trovato’s specific and forceful testimony. Trovato
was a persuasive witness as to this, as was Zieler, and I credit
them. Supervisor Murray testified unpersuasively, and I do not
credit him. Indeed, Murray admits that, before Supervisor
Uria-Ruiz issued Gallup’s May 27 memo (JX 2), he believed
that Gallup’s policy prohibited the distribution of union materi-
als to the interviewers’ desks. (15:2979–2980) His testimony
here bears specifically on complaint paragraph 13, and I now
turn to that allegation in a moment. As to complaint paragraph
12, I find merit.
c. May 21 or 28, 1999
Complaint paragraph 13 alleges that, “about May 21, 1999,
or May 28, 1999, Respondent, by Chad Murray, directed em-
ployees that they could not distribute union documents and that
he did not want them engaging in said activities any longer.”
Gallup denies. Sherri Lee testified in support of the allegation.
About a week before Gallup’s May 27 memo (JX 2) on dis-
tributions and postings, Sherri Lee testified (6:1031; 7:1333,
1334), she assisted the other members of the organizing com-
mittee in distributing and posting copies of the “Strikes!” hand-
bill (GCX 28). She put copies on interviewers’ desks and on
walls. She did not ask any supervisor for permission to do this.
(6:1032; 7:1333–1336) Following this action, Supervisor Chad
Murray called Lee into his office. Lee took Tony “Money”
Anderson (who did not testify) as a witness. In an agitated
tone, Murray told Lee that she “could not post” and “could not
put that document out.” Murray appeared to be more upset
about the contents that he was about the fact of the distribution
or posting. (6:1031; 7:1333–1334) The “Strikes!” flyer has, at
the top of each corner of the paper, a statement reading, “Don’t
Fall For The Boss’s Lies!” Several bulleted points on the paper
describe “What the Boss Will Say,” plus “Some Questions for
the Boss,” and “What The Boss Won’t Tell You.”
Responding to Murray, Lee said that the Union supporters
had not put out any flyers until the antiunion group did, and
once they did then the Union supporters did likewise. But be-
cause she did not want to be insubordinate, she would check
with the Union representative and would do as he suggested.
(6:1031)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
Advising that he had read complaint paragraph 13, Supervi-
sor Murray acknowledges that, before the distribution of Uria-
Ruiz’s May 27 memo on postings and distributions (JX 2), on
the same Saturday (May 22) that he gathered copies of GCX 28
(15:2997, 2979), he had a conversation with Sherri Lee and
Tony Anderson regarding distribution of union materials at
work. (15:2979) At the time of this conversation, Murray as-
serts, it was his understanding that Gallup’s policy prohibited
employees from distributing materials in a work area, such as
placing them on the desks of the interviewers. He so told them
this (testifying that it was Lee who came in to be there with
Anderson), and that they were to confine their distributions to
the break areas and nonworking areas. He assertedly told them
that he wanted to do this the correct way, and that, “We all
want to play by the rules here.” According to Murray, follow-
ing the May 27 issuance of Joint Exhibit 2, he adhered to the
policy described there by Supervisor Uria-Ruiz, and he had no
further discussions with employees about postings or distribu-
tions of materials. (15:2979–2981)
To the limited extent of the differences, I credit Sherri Lee
over Supervisor Murray. As to this matter, Lee testified more
persuasively. In fact, Murray admits the essential of the allega-
tion, offering his own misunderstanding of Gallup’s asserted
policy as his defense, and observing that he did not violate
Gallup’s written policy (JX 2) following its issuance on May
27. Respecting the differences, in accordance with Lee’s cred-
ited version, I find that Murray spoke in an agitated tone (and
not in the calm manner that he that he implies) and in the lan-
guage of the account given by Lee.
In short, as to the facts, the Government’s evidence is cred-
ited as to “about May 21.” The General Counsel cites no evi-
dence in support of the “about May 28” allegation, and I find
none. Accordingly, I shall dismiss complaint paragraph 13 as
to the date of May 28, 1999, and I find merit to the first portion
of the allegation, that being the allegation of “about May 21.”
d. Last week of May 1999
Complaint paragraph 14 alleges that in the last week of May
Gallup, by Supervisor Chad Murray, “removed a union docu-
ment from the main bulletin board and told an employee that
such postings were impermissible.” Gallup denies. Sherri Lee
testified in support.
Lee testified that, about the end of May, she and other posted
a union flyer, pertaining to the reasons for signing a union
card,13 on mission control’s bulletin board. Supervisor Chad
Murray removed it. They put up another copy, and Murray
removed that one, too. Lee personally saw him do this twice,
both within a day of the other occasion. However, Murray
would not remove the antiunion posters. After the second re-
moval, Murray told Lee and the others not to post it again. Lee
told Murray that, although they did not want to be insubordi-
nate, they did not think it was fair that he would remove the
Union’s posters but not those of the antiunion supporters, and
that therefore they would continue to post union material as
long as the antiunion people did so. (6:1039–1041) Murray’s

13 No copy of the flyer was identified. Thus, it was not necessarily a
copy of a similar flyer in evidence as GCX 31.
“I don’t ever recall doing that” (15:2981) was no more persua-
sive in tone than the first time. Thus, I find that he spoke his
prohibition as described by Lee.
As with my findings on the second part of complaint para-
graph 11 (Murray component), I also find here that Supervisor
Murray was engaging in censorship rather than in an effort to
protect management’s legitimate control of its property. In-
deed, here Murray left antiunion flyers posted. Even if the
antiunion group had received permission to post its antiunion
messages on the mission control bulletin board, that distinction
was not conveyed by Supervisor Murray to Sherri Lee. Thus,
employee Lee reasonably could have perceived that the purpose
of the removal, and the leaving of the antiunion posters, was
discrimination against the union materials simply because they
were perceived by management as favorable to the Union. In
short, Gallup acted with disparity toward Sherri Lee and the
Union supporters. Accordingly, I find merit to complaint para-
graph 14.
e. A Saturday in May 1999
“On a Saturday in May,” complaint paragraph 17 alleges,
Gallup, by Supervisor Chad Murray, “removed union literature
from an interviewer’s desk and instructed employees not to
distribute union literature at work.” By its answer, Gallup:
. . . partially admits the allegations of Paragraph No. 17 of the
Complaint but denies the allegation concerning instructions
by Supervisor Chad Murray to employees not to distribute un-
ion literature at work. Rather, the Respondent alleges that
Supervisor Murray instructed such employees that they could
not distribute such literature in works areas but must limit the
distribution to [the] kitchen area and the break area.
Apparently because of the admissions in the answer, the
General Counsel (Brief at 16) cites no supporting testimony,
and argues that the case law supports a violation. Supervisor
Murray testified that in May he did remove union literature—
GCX 28 (the “Strikes!” handbill)—from an interviewer’s desk,
and that there was only one such date, that being as he had
earlier testified (respecting complaint paragraphs 12 and 13).
As this allegation duplicates the posting and distribution of
the “Strikes!” flyer (GCX 28) on Saturday, May 22, already
covered by complaint paragraphs 12 and 13, I shall dismiss this
complaint paragraph 17.
6. Gallup adds “union issue” to its non-harassment policy
a. Facts
Complaint paragraph 21 alleges, and Gallup admits, that
about May 20 Gallup issued the following “Non-Harassment
Policy Statement” (JX 1):
If you feel you are being harassed or threatened at work about
the union issue, contact your supervisor immediately. Har-
assment is not tolerated in the workplace. Gallup will follow
our normal harassment policy.
As one of its affirmative defenses, Gallup pleads that it has
adhered to its preexisting nonharassment policy and “did not
establish any new procedures for the handling of employee
GALLUP, INC. 1233
complaints concerning harassment pertaining to the activities of
either pro-union or anti-union employees.”
The record reflects that, shortly after the Union opened its
organizing drive, Supervisor Uria-Ruiz began receiving com-
plaints from some employees that they were being interrupted
in their work by union supporters seeking to persuade them to
join their ranks. As I noted earlier, as disclosed by Sherri Lee,
the organizing committee was surprised to find that many em-
ployees were not interested in having union representation.
Copies of the written complaints that Uria-Ruiz received are in
evidence. (RXs 7, 8, 9, 10, 11) Uria-Ruiz also received a
complaint (JX 15) from Janice Rinehart (the first signee on the
in-plant organizing letter, RX 5) that someone had shredded the
family photo that she had kept in her cubicle, although this
complaint came a few days after the posting in issue.
Gallup already had a nonharassment policy that prohibited
every harassment known to mankind, except harassment over
union matters. So, after consulting with higher management,
Uria-Ruiz redistributed the existing policy with a new box at
the top containing the language (JX 1) quoted above and at-
tacked (as facially unlawful) by complaint paragraph 21.
(2:292, Uria-Ruiz; 13:2473–2475, Geiger; 15:3056–3058, Uria-
Ruiz)
There is no evidence that the purpose of adding one more
topic to the list was to chill activities for or against the Union.
The purpose was to protect employees from harassment by
either group. (15:3058, Uria-Ruiz) As Supervisor Uria-Ruiz
informed employees by her memo (text in all capitals with one
paragraph, quoted here, in bold) of May 26 (JX 4):
WE WILL NOT ACCEPT HARASSMENT ON
EITHER SIDE! THIS IS GROUNDS FOR
TERMINATION!
No evidence was presented that Gallup applied the modified
no-harassment policy in a manner that would discriminate
against union supporters, nor is there any such allegation in the
complaint. Complaint paragraph 21 attacks the quoted modifi-
cation as unlawful on its face.
b. Discussion
Notwithstanding the General Counsel’s suggestion (Br. at
27) that employees who feel that they are being harassed or
threatened at work by either pro or no-union supporters are not
part of a protected class, Section 7 of the Act protects both
groups. The General Counsel’s violation theory (Br. at 27)
appears to be that the box addition to Gallup’s policy “is noth-
ing more than a blatant demand that employees engage in sur-
veillance and reporting on the union activities of their fellow
employees, and as such is plainly unlawful.” There is no such
“blatant demand” here. Employees are not told, for example, to
report anyone who asks them to sign a union card or who sim-
ply tries to talk to them about the union matter.
And contrary to the Government’s asserted theory, Gallup’s
modified policy is neutral, thereby protecting all employees.
The purpose of the modified policy is preventive, not punitive.
An employer need not, and should not, wait until fist fights
erupt or stabbings occur in the workplace to act. The policy
modification here is calculated to avoid problems. Employees
at work have the right to say “No” to coworkers who repeatedly
seek to talk with them about any topic, including sports,
weather, politics, stock market, religion, sex—or unions.
“What part of ‘No!’ don’t you understand?” applies just as
much to any one of these topics as it does to another. Workers
should be free to ask their employers for assistance against
unwelcome verbal aggression well before that aggression esca-
lates to the point of verbal assaults, physical threats, or even
emotional stress or mental fatigue. “No!” means No! And
coworkers who ignore such a “No” and continue to interrupt
and bug another worker with unwelcome talk need to know that
there can be adverse consequences for such unwelcome verbal
harassment. There being no merit to this allegation, I shall
dismiss complaint paragraph 21.
7. Gallup locks its copy room
a. Introduction
Two allegations are involved here. About May 19, com-
plaint paragraph 22(a) alleges, Gallup “locked the door to the
copy room and prohibited employees from making copies.”
Gallup “partially admits” but “denies the allegation concerning
the prohibition of employee making any photocopies.”
About May 24, complaint paragraph 22(b) alleges, Gallup
“distributed a memorandum stating that employees could no
longer make copies without approval.” Gallup admits.
For an affirmative defense, Gallup pleads that at all material
times it adhered to its preexisting policy “concerning the prohi-
bition of utilizing the Respondent’s photocopy facilities for
non-business related activities and made no exception concern-
ing either pro-union or anti-union material.”
The memo in question (JX 19), apparently the one also men-
tioned in complaint paragraph 22(b), was distributed about May
19. (2:304, Uria-Ruiz; 11:2165; 12:2329–2330, Barlow) Enti-
tled “Memo,” not addressed to anyone, and bearing the typed
first names of the seven supervisors, the text of the memo clos-
ing the copy room reads (JX 19):
We make a ton of copies. We make more copies than
any good American should. In addition, however, to all of
our regular business related copies we have had a great
deal of copies made for personal reasons. We have always
held to the policy forbidding non-business related use of
the copy machine and office supplies. [H]owever, due to
consistent disregard for this necessary rule as well as the
constant need for repairs and maintenance to the machine,
not to mention ever increasing costs associated with the
sheer volume of copies we make on a daily basis we sim-
ply can not continue to allow free access to the supply
room and copy machine.
Thus, in an effort to limit the amount of trees and
money we burn each month, as well as the amount of wear
and tear on the copy machine itself, the Houston office
will adopt the same policy as the other six locations in the
company. Instead of making copies of your pay sheets
each night, we have weekly pay logs that you can fill out
with your pay sheet. Payroll will accept these in place of
the copies without any trouble at all.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1234
If any of you need to make a business-related copy let
any one of the managers know and we will make it for you
without delay but again, in order to keep the machine in
working order and to cut down the ever skyrocketing costs
of wasted paper, ink and other supplies we are left with
few options other than to limit the number of copies we
make.
We apologize for any inconvenience this may cause
and thank you for your understanding.
b. Facts
The copy room at Gallup’s Houston office (one copier until a
second arrived when the Bellaire office merged around mid-
May) also houses the office supplies and the payroll printer.
(11:2166; 12:2328, Barlow) Janice Rinehart reports that, be-
fore Gallup locked the copy room, employees not only would
make photos of their time sheets and production records, but
also of “different things.” (8:1704) Asked whether there had
been any restriction on access, Rinehart tells us that there was
“not really any restriction” even though there was a sign on the
wall above the copier instructing employees to obtain permis-
sion to photocopy anything personal. (8:1705) Others confirm
the presence of the sign before its mysterious disappearance in
about May. (2:312–313, Uria-Ruiz; 2:373, Trovato; 11:2168,
12;2331, Barlow; 12:2415–2416, Collette; 13:2477, Geiger)
According to Rinehart, this sign was not honored, and for
proof she describes an occasion when she observed one of the
executive interviewers14 photocopying an entire recipe book.
However, Rinehart does not recall whether any supervisors or
managers saw this. In fact, Rinehart cannot recall any instance
when a supervisor was present and someone was copying non-
work items. (8:1705–1706)
Patrick Snyder, however, states that he has been in the copy
room when different supervisors were present and personal
copying was being done. On one occasion, for example, Su-
pervisor Chad Murray was present when an employee made a
copy of a newspaper article. In fact, everyone present was
discussing the article. “It was a common occurrence. I mean, it
was nothing that was made note of. I mean, people used the—I
mean, you couldn’t go in and make 500 pages, but if you were
just running one or two pages, nothing was ever said.” (4:714,
Snyder)
On another occasion, a month or two before the start of the
union organizing in mid-May, Snyder asserts, Supervisor
Stephanie Geiger was present when an employee copied a no-
tice to sell a sofa and a loveseat. Geiger, who was standing
next to Snyder waiting to use the copier, “didn’t give her per-
mission, but she didn’t object to it.” (4:715–716) Geiger,
whose first day at the Houston office did not come until May
17 (13:2466–2467), credibly denies ever knowingly allowing
an employee to make personal photocopies. Geiger’s denial
highlights a credibility problem with the leading nature of the
General Counsel’s questions. Thus, when Snyder testifies that
he has seen supervisors in the room when personal copies were

14 Executive interviewers are interviewers who work during the day
hours telephoning business executives and professionals. (3:536–537,
Lambert; JX 23 at 10)
being made, the General Counsel asks him to name the supervi-
sors whom he saw “observing” the copying. The witness was
not asked to describe what the supervisor was doing. (4:714)
Factual descriptions by a witness that a supervisor was look-
ing at and reading the items being copied, or commenting about
the nature of the item being copied, are what justify a conclu-
sion that a supervisor observed what was being copied. Other-
wise it is just as reasonable to infer that the supervisor, al-
though present in the room, was not inspecting what was being
copied, but was preoccupied with other thoughts and perhaps
was not even looking at the photocopying, much less inspecting
what was being copied.
In any event, employees have been disciplined for making
personal photocopies. Supervisor Douglas Barlow participated
in the decision to orally warn Chad Kushner in 1994 (11:2168–
2170), and himself orally warned Shirley Lawler, also about
1994, that if she did it again she would be terminated
(11:2170–2171) Those are the two instances that Barlow re-
calls. (12:2332) Barlow advises that the copy room remains
locked. (11:2173–2174)
In the early spring the Houston office was experiencing an
abuse of access to the copy room. Office supplies, including
bulk items such as toner cartridges and reams of copy paper,
were missing, confidential payroll information was found on
the copy machine,15 an employee was observed copying an
email that Supervisor Uria-Ruiz had sent to the printer in the
copy room, paper was getting jammed in the copier, and fre-
quently the jammed copies, as Patty Collette advises, were of
nonwork items. (2:309–311; 15:3059–3060, Uria-Ruiz;
11:2166–2167; 12:2327, Barlow; 12:2414–2415, Collette) The
Xerox technician, Ranzy J. Campbell Jr., suggested three op-
tions (a coding device, lock the copies, or lock the copy room).
(2:308–309; 15:3060–3061, Uria-Ruiz; 12:2373–2374, Camp-
bell) Janice Rinehart suggests that the closing was prompted
by the number of copies of the Union flyer that Supervisor
Roberts confiscated from Rinehart’s cubicle the day before the
closing memo issued. (8:1704) However, this does not follow
because, as described earlier, Rinehart and “Money” Anderson
confronted Roberts. On that occasion Rinehart, telling Roberts
that she had paid for copying the item at Kinko’s, displayed her
Kinko’s receipt for the cost of the copying. (8:1699)
Respecting the only factual allegation denied, the averment
that when Gallup locked the copy room door it also prohibited
employees from making any copies, Marion Trovato asserts
that, after the room was locked, she was never allowed to make
any copies. (2:375) Such testimony is both ambiguous (work
copies or copies of personal items?) and inadequate (not an
assertion that she asked a supervisor and that her request was
rejected). The memo (JX 19), from all the supervisors, an-
nouncing the closing expressly states that business-related cop-
ies will be made for employees “without delay” if employees
ask a supervisor. I find that Trovato’s ambiguous testimony
fails to prove that Gallup refused to make any business copies,
as promised. Indeed, Supervisor Barlow credibly testified that

15 Thereby illustrating Connor’s Second Law, “If something is con-
fidential, it will be left in the copier machine.” A. Bloch, Murphy’s
Law, Book three at 60 (1982).
GALLUP, INC. 1235
such copies were made, and that he never denied any such re-
quest. (12:2231)
However, as the same memo (JX 19) states, “. . . the Houston
office will adopt the same policy as the other six locations in
the company. Instead of making copies of your pay sheets each
night, we have weekly pay logs that you can fill out with your
pay sheet. Payroll will accept these in place of the copies with-
out any trouble at all.” Supervisor Uria-Ruiz testified that the
Houston office had been the only one which had allowed copies
to be made of the nightly paysheets. (2:304–305; 15:3062–
3063) An example of a “paysheet” appears in the record as
GCX 16.
Finally, there is no evidence that Gallup used this occasion to
discriminate against Union supporters by allowing the anti-
union forces to make copies either of their antiunion flyers, of
their other personal items, or of their nightly paysheets while
keeping the door closed as to the Union supporters.
c. Discussion
The General Counsel argues (Br. at 22) that closing the copy
room, and prohibiting the making of copies of the nightly pay-
sheets, worked a hardship on employees by requiring them to
hand copy detailed information on their nightly paysheets.
Gallup’s purpose in making this change in the “terms and con-
ditions of employment” was intended to inhibit union organiza-
tional efforts and to penalize employees for exercising their
Section 7 rights. In support of this argument, the General
Counsel cites Boyer Ford Trucks, 254 NLRB 1389, 1394
(1981).
Countering this contention, Gallup argues (Reply Br. at 4–5)
that Boyer Ford involved a new rule prohibiting sales employ-
ees from duplicating items needed for company business,
whereas our case fits under the rule of Yale New Haven Hospi-
tal, 309 NLRB 363, 369–370 (1992) (old rule against personal
telephone calls, except for emergencies, not always enforced,
and manager, returning from a 3-month assignment, renews
enforcement to regain efficiency; no disparity in application; no
unlawful intent found).
The initial question is whether a protected right is involved
here. For example, if—admittedly because the employees start
organizing for a union—the boss stops smiling at and greeting
the employees each morning, such elimination of her morning
smile and daily greeting is not unlawful. The law does not
require that the boss be congenial. It only requires, under Sec-
tion 8(a)(3) of the Act, that he not discriminate respecting hir-
ing or tenure of employment or as to “any term or condition of
employment.” Coercion under Section 8(a)(1) of the Act, as
the General Counsel acknowledges, must threaten a change in,
or be a change in, are relevant here, “the terms or conditions of
employment.” Thus, if the boss were to threaten that he would
stop smiling at the employees in the mornings if they brought a
union into the plant or office, there would be no violation, for
cancellation of congeniality does not rise to the level of the
elimination of a term or condition of employment.
Thus, all the evidence about previous access to make some
free copies photocopies of personal items (even assuming su-
pervisory knowledge or approval of, as Patrick Snyder de-
scribes it, a page or two) simply describes, at most, a gift from
Gallup. Gifts of company picnics, Christmas turkeys, and such
that are not linked to wages, seniority, or work performed, are
not included under the statutory clause, “terms and conditions
of employment.” See Stone Container Corp., 313 NLRB 336,
337 (1993). Even more so would be occasional free copies of a
couple of pages or so from the employer’s copying machine.
And even if free photocopies are a class that somehow could be
included under the statutory clause in some circumstances, the
occasional few copies involved here still would fall outside the
coverage under the old “de minimis” legal maxim, “the law
does not concern itself with trifles.”
Does the addition of the work paper that had been copied
make a difference? It did in Boyer Ford Trucks, 254 NLRB
1389, 1394 (1981), only because the rule prohibited the sales-
men there from copying items “needed for company business.”
As such, the judge described the rule as a “mindless act,” one
apparently born of a desire to retaliate. The rule was found to
violate Section 8(a)(1) of the Act by imposing a more onerous
working condition.
That situation does not prevail here because no “mindless”
retaliation is involved. First, Gallup had several good business
reasons for making its change. As for extra pen and paper work
that possibly was a result (the Government’s case relies more
on assumption than on evidence; indeed, this theory seems to
be an afterthought), the switch to that procedure merely brought
the Houston office into conformity with the procedure followed
in Gallup’s other offices. Moreover, the change affected eve-
ryone, and not simply the union supporters.
In any event, I credit Gallup’s witnesses that the purpose was
to protect and conserve its property, including confidential
papers, and not to retaliate against employees because some
were seeking to organize support for the Union. Accordingly, I
shall dismiss complaint paragraph 22.
8. CEO Jim Clifton speaks
a. Facts
On May 26, complaint paragraph 23 alleges, Gallup’s CEO,
Jim Clifton, “threatened employees with general reprisals and
with loss of their jobs if they supported the Union.” On an-
swer, Gallup denies. As its affirmative defense number V,
Gallup avers, “All comments made by the Respondent’s Chief
Executive Officer Jim Clifton on May 26, 1999 constituted
non-coercive expressions of opinion which are protected by 29
U.S.C. § 158(c).”
Early in the trial Gallup filed a motion (RX 1), and a sup-
porting brief (RX 2), to dismiss complaint paragraph 23 on the
basis that CEO Clifton’s remarks are protected by Section 8(c)
of the Act. (1:16–18) The General Counsel filed (5:819-821)
an opposition. (GCX 40) Initially I postponed ruling (1:25),
and later Gallup agreed that my ruling could wait until this
decision. (5:821) At this point, the matter simply merges into
this decision on the merits.
The facts are undisputed. Pursuant to a May 26 memo (GCX
37) from “The Management Staff” announcing a “mandatory”
meeting beginning at 7 p.m. in the downstairs conference room
to hear CEO Jim Clifton speak about “recent developments and
implications regarding the integrity of Gallup,” all employees
of the Houston office assembled at the first floor conference
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1236
room as directed. (All tenants of the building are able to use a
large area on the first floor as a meeting room. 11:2156–2157,
Barlow.)
The meeting was videotaped, and a copy of the tape (JX 5) is
in evidence. (1:8, 14) A 36-page transcript (JX 6) of the video-
tape also is in evidence. (1:9, 14) The parties stipulated
(12:2242), and I agree, that the videotape runs for 46 minutes.
Because about the first 3 minutes, and part of the last minute,
pertain to some preliminary matters (including a request that
the employees submit questions written on paper provided, with
the promise that every question would be answered later, but
that no questions would be taken at the meeting), the actual talk
by CEO Clifton, by my count, consumes 42 minutes, and cov-
ers 32 pages (pp. 5 to 36) of the transcript. Aside from the
notes Clifton had at hand for occasional reference (JX 6 at 5),
and as is obvious from the video, Clifton does not read from a
prepared text. The transcript is the text that we have of
Clifton’s extemporaneous remarks. Because of the extempora-
neous nature of his speech, and of Clifton’s conversational style
of delivery, the words and thoughts of Clifton’s talk at times
lack the smooth flow of a prepared text.
Clifton does not reach his main point until page 31 of the
transcript. For most of the first 25 pages or so of his talk,
Clifton describes examples of difficult business and people
situations that he has faced as Gallup’s CEO and how he has
handled those situations. He begins by stating that when he
heard what the Houston employees were thinking about, “I got
very, very frightened. Probably as frightened as I’ve been for a
long time about a company issue. Gallup has very, very big
issues all the way around the world.” (JX 6 at 5) Despite these
other issues, Clifton said that he wanted to come down (to
Texas) and to tell the employees about “one of the very big
concerns that I have. And that one concern will be what I will
address.”
But first Clifton launches into his description of several ex-
amples of the tough situations that he has faced as CEO. Some
of these had to do with unhappy Gallup executives and Gallup
analysts regarding internal changes that Clifton had imposed or
approved. Clifton threatened to fire them if they persisted in
their opposition. Others pertain to customers and how he had
handled these disputes, such as in telling Microsoft, “No.” (JX
6 at 22) Perhaps because he was in Texas, Clifton used the
phrase “shoot out” to describe some of these confrontations (JX
6 at 10), as well as his expression about needing someone to
“draw their guns” (JX 6 at 34) with him and ask the questions
he was posing.
Clifton makes clear that, to resolve these disputes, he stood
firm so as to uphold his view of Gallup’s integrity and reputa-
tion. In the most dramatic of these situations, Clifton and the
CEO of a group in Taiwan—a group claiming rights to the
Gallup name—had to stand before a judge in Taiwan who
would determine which CEO was lying. The liar, as deter-
mined by the judge, would go (and did go) to prison. Thus,
Clifton put his personal freedom on the line in a foreign land.
He won. Had the Taiwan group won, Clifton asserted, it would
not have told the truth in its polls. That would have devastated
Gallup’s reputation in the United States. (JX 6 at 23–25)
Clifton describes other stories—all meant to emphasize the
integrity of Gallup’s data gathering, the preeminent position of
trust that the Gallup Poll has acquired over 60 years because of
that integrity, and the independence from special interest
groups that the Gallup Poll exercises in order to protect that
integrity and to earn that trust. Clifton asserts (JX 6 at 27) that
people call the Gallup Poll a “national treasure.” At one point
Clifton describes the future of Gallup’s telephone interviewing.
Reporting that Gallup is increasing its social audits so much
that it is paying for construction of its own building in Wash-
ington, DC, Clifton tells the group that “the future of telephone
interviewing is very, very strong.” (JX 6 at internal 13–14)
Finally, Clifton begins addressing his main point. I quote
most of his remarks as to this main, and concluding, point (JX 6
at 31–36):
Our biggest selling point is our independence. Our in-
dependence can never be compromised or our future is ab-
solutely in jeopardy.
So let’s just say that we’re working with some large
company in Chicago and it’s heavy competition. Compe-
tition gets very, very tough in this business. And our
competitors say, by the way, here at Sears, one of the
things that you might be interested in about the Gallup or-
ganization is that their data is collected by the United
Steelworkers Union. That changes everything. And
there’s no way through that. Now, forget about the busi-
ness part, but it’s the perception. You’ve changed Gallup
forever the minute that’s an honest answer.
Let me take you a place more dangerous, that’s why I
came here. We have a very important election coming up.
And it’s probably going to be the Texas governor maybe
against Al Gore, maybe it will be against Bill Bradley.
[Two paragraphs omitted here pertaining to social au-
dits that go to the White House.]
And, but let’s say that it’s a sticky issue. And here’s
the point I want to make with you. The decision that you
have affects this and our future more than any decision
I’ve ever seen in this company. Maybe with the exception
of Chinese control over the Gallup name.
[Paragraph omitted about poll on impeaching the
President.]
Our company, this process, our trust is the highest it’s
ever been. Everybody’s scratching their heads, they know
there’s somewhat of a disconnect between leadership and
the voice of the United States. But imagine that, let’s say
Bill Bradley suddenly shows very close to Al Gore. Al
Gore is much more—well, let’s say it’s the other way, Al
Gore is much more for unions than Bill Bradley. These
are the dots that you need to connect.
You got to ask yourself, is this what I want to do? Be-
cause when they look down they’ll say none of this adds
up. And Gallup is always right. And then they say,
[Punctuation needed but not added.] say, did you hear, this
high score for unions, something that we need to know is
that that data’s collected by the United Steelworkers.
At that moment our trust is absolutely gone. And you
can do anything you want with that thought. But that’s
GALLUP, INC. 1237
what happens. So you got to ask yourself in your jobs, am
I having trouble, am I uncomfortable? People at Gallup
have many of those same feelings. In a lot of companies
they do.
I would strongly encourage you to work them out
yourselves. If you can’t, ask yourself do you want to in
perpetuity change a 60 year trust that the Gallup organiza-
tion has built between leadership and the citizens of the
United States with one vote?
But if you vote yes, it’s very powerful. That also
makes the national news. [Quotes added.] “Interviewers
for Gallup work for the United Steelworkers.” If you do
that that changes everything. This is no longer the Gallup
Poll, the Chinese might as well [have] beat us in Taipei. I
wouldn’t have needed to have gone.
But I need somebody to draw their guns right now
with me and ask yourselves, do you want to knock this
trust out of this 60 year company?
WOMAN: No.
MR. CLIFTON: Well, that’s why I would encourage
you, maybe, maybe just, maybe just in closing, please sit
down and divide this issue into two thoughts. Write your
questions down. Let’s answer them. Let’s keep working
on them. I know there are some people here that have out-
standing jobs. I know that there are people here that make
a lot of money and I know that there are people here that
have managers that have an enormous amount of respect
and care for you. I’m one of them that does.
Our interviewing with Dr. Gallup before he died, he
said somebody ought to look at that company and they
said why, Dr. Gallup? And he said, because that company
knows the importance of interviewing more than any other
company in the world. We feel that way.
It’s not quite as good as it is now. I’ve seen the Q 12s,
the Q 12 scores, all that. They’re high. They’re much
higher than companies all around the world. We don’t see
scores like these. Other companies don’t have them. The
United Steelworkers, those people that work full time
there, they sure don’t. That’s an organization that’s in
enormous decline.
I would ask you to ask yourselves, is that the group
that can help you? Do you need help from that? You’re
up here. This is one of the best workplaces. But you see,
we’re not satisfied. I don’t blame you. The people that
work with me, they’re never satisfied. Work to get it back
where it is. Work to get whatever the requirements are,
whatever the pay is, just win it back yourselves.
I’m behind you a hundred percent. I came here, I
dropped everything I had, I wanted to meet with the su-
pervisors and I wanted to talk, and I wanted to talk with
you. Please vote no. Please vote no with anything that
has to do with United Steelworkers. Write no on it. Don’t
participate. Because when you put that pen in your hands
it’s not just about your job, it’s about whether or not we’re
the voice of 260 million Americans.
I appreciate—you’re an excellent audience and I ap-
preciate you listening very much. And I’m anxious to see
your questions. Thank you very much. Good night.
Following Clifton’s speech, employees submitted their writ-
ten questions. By her covering memo dated June 3 (GCX 39,
Rejected) to the Houston interviewers, Jane Miller, vice presi-
dent and director of operations, transmitted, by a 25-page at-
tachment, a listing of the 92 questions asked with the answers
given as to each, in a Q and A format. (All questions were
answered, although a handful that were either personal or ir-
relevant received a “No response.”) Miller reports that the
italicized answers are by CEO Clifton, and that the regular font
answers are a collective response by “Your Houston Managers”
and “Jean Timmerman and Jane Miller” (and possibly Clifton).
The memo continues, with its last paragraph being a statement
relevant to the issues here.
At trial the General Counsel offered this document (GCX 39,
Rejected), plus argument about a one-page memo (RX 12) from
the Houston managers, titled, “Back to the Basics,” for the
purpose of lending context not only to CEO Clifton’s May 26
speech, but to all other allegations of the complaint. (4:707–
708) The General Counsel further argued that the document,
specifically the answers to questions (Q) 29 and Q33, in con-
junction with the “Back to the Basics” memo (RX 12), shows
animus. (4:709)
The memo (RX 12), distributed about June 1 or 2 (2:297–
298, Uria-Ruiz), had been offered by Gallup to show its
“course of action” in relation to the complaints received about
harassment and work interference from the opposing factions,
and I received it on that basis. (2:297–299)
Respecting the Q and A document (GCX 39), the General
Counsel conceded (4:707) that none of the complaint’s inde-
pendent 8(a)(1) allegations attacks any part of the 26-page
document. Gallup objected to the receipt of the Q and A
document on the basis that there is no independent allegation
regarding it and the speech itself is what should be evaluated
under complaint paragraph 23 (plus conclusory par. 27), and
the Q and A document (coming nearly a week after the speech)
is irrelevant. (4:705–706)
Asked for an example of the animus reflected by the Q and
A document, the General Counsel cited the answers to Q29 and
Q33, in conjunction with the “Back to the Basics” memo.
(4:709) That memo explains that the recent events have caused
the usually productive Houston office “to veer off course
somewhat.” All the distractions and discussions, plus some
people working fewer hours, have caused employees to turn
their attention away from the work at hand and have caused the
office to fall behind on some projects. “More importantly,” the
second paragraph begins, “our quality has suffered. Recent
evaluation scores have been at least one to two points lower
than they usually are.” The third (of four) paragraphs begins,
“It is time to get back to the basics. We are the Gallup organi-
zation, the best and the most trusted name in research in the
entire world. It is time for us to refocus our attention on ...” the
work at hand. The fourth and last paragraph observes that the
next few days will be very important, and the employees are
urged to be at work, to do their best work, and to catch up on
the projects.
The General Counsel made an offer of proof, respecting RX
12, that if permitted to testify, Patrick Snyder would testify that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1238
RX 12 gave employees [as they interpreted the memo] a mes-
sage that their distraction, as the company perceived it, was a
result of their union activities, and that such distraction was
causing their production and quality to suffer. (4:704)
The questions and answers cited by the General Counsel read
(GCX 39 at internal 8):
Q29. If the union issue goes any further is there a
chance that this location will shut down?
A. No. The presence or absence of a union has noth-
ing to do with an office closing. What is important at any
facility is that we maintain our performance, quality, and
our client’s needs relating to quality of service. These
standards remain and will not change at all if a union is se-
lected by employees.
The first part of Q33 reads, “What is to stop you from clos-
ing this office to keep the union out or if the union wins?” The
answer to this portion of Q33 is a repeat of the answer to Q29.
(Moreover, Q81 and Q88 are rather similar to the first portion
of Q33, and the answers there also duplicate the answer given
to Q29. The answer to all four questions are in regular type,
not italicized.)
Asked how the cited answers to Q29 and Q33 demonstrate
animus, the General Counsel responded (4:709) that the “Back
to the Basics” memo (RX 12) “states in a veiled manner, Be-
cause of the union organizing drive, you guys are letting your
productivity and quality fall off.” That (veiled) statement, con-
sidered in conjunction with (from the answers to Q29 and Q33),
“What is important in any facility is that we maintain our per-
formance, quality, and our clients’ needs relating to quality of
service,” is what shows animus. (4:709)
I sustained the objection and, on request, placed GCX 39 in
the Rejected Exhibits folder. (4:709–710) By the Govern-
ment’s subsequent offer of proof, the General Counsel prof-
fered that, if allowed to testify, Patrick Snyder would testify
that he received the “Back to the Basics” memo (RX 12) on
June 2, that he understood the content of the memo to be sug-
gesting that, because of the union organizational drive, the
quality and productivity of employees was being undermined.
Moreover, on the very next day, June 3, Snyder received the Q
and A document (GCX 39), and in it Q29 and Q33 relate to the
possibility of plant closure if a union organizational drive were
successful.
Part of the answer to those two questions states, “What is
important in any facility is that we maintain our performance,
quality, and our clients’ needs relating to quality of service.”
Snyder would testify, the General Counsel continued, that he
understood the answer to those two questions (Q29 and Q33),
in conjunction with the “Back to the Basics” memo (RX 12), to
suggest to employees that their productivity and quality had
dropped off dramatically as a result of the union organizational
drive, and when productivity and quality drop off, that plant
closure or facility closure is a real possibility, that he under-
stood this to be a veiled threat of plant closure, and he under-
stood this to demonstrate Gallup’s opposition to the union
drive. (4:710–711)
After colloquy with the General Counsel, I stated that my
ruling remained the same. (4:713) In this connection, one must
wonder how Snyder’s vivid imagination, and the Government’s
puzzling acceptance of his interpretation of the documents,
would blind them both to the first sentence (first two, actually)
of the answer to Q29 (that I quoted at trial, 4:709):” No. The
presence or absence of a union has nothing to do with an office
closing.”
My point in describing these documents is to explain that I
now think I should have received in evidence the Q and A
document (GCX 39) and should have lifted any restriction on
the memo (RX 12) so that the parties would be free to argue
their points. The General Counsel wants to argue animus, as I
have just described. The General Counsel was not asking for
any unfair labor practice finding respecting either the Q and A
document (GCX 39) or the “Back to the Basics” memo (RX
12). She made her offers only to lend context and to show
animus. Of course, Gallup’s position is that the speech should
be evaluated, under Section 8(c) of the Act, solely on the basis
of the speech itself, and without regard to other events (particu-
larly events which come later).
It is risky when a judge, at this stage, reverses a ruling and
receives documents. This is so because the parties (particularly
the opponent) will not have the opportunity to submit additional
briefing or to offer any evidence deemed relevant and material
should the new ruling work to the prejudice of the opponent
(Gallup, here). Although any error I made in rejecting the
documents (GCX 39 and in not generally receiving RX 1216)
probably would be determined to be harmless, I still am in-
clined to receive the documents generally. I do not think this
receipt will be prejudicial to Gallup. Accordingly, I now re-
ceive GCX 39 (including the covering memo) and RX 12 with
but one limitation — this otherwise general receipt is not to
make either document available as a target for an unfair labor
practice finding. (I do not reverse my rulings rejecting offers of
proof by the General Counsel respecting what proffered testi-
mony would be about the meaning of GCX 39 and RX 12. The
meaning is a matter of law.)
Having now received the Q and A document (GCX 39) in
evidence (and having moved it from the Rejected Exhibits
folder to the folder for the General Counsel’s exhibits), I return
to the covering memo and quote Vice President Miller’s last
paragraph there:
Gallup recognizes that employees have the right to support or
not support a union. We respect that right and we will do eve-
rything possible to protect that right. However, if it comes to
an NLRB-conducted election, we urge all Houston interview-
ers to vote no because we do not believe that a union is neces-
sary or beneficial to you and your work environment. Be-
cause we are so concerned about the negative perception
which may develop concerning the independence of the

16 Technically, to carry the Government’s point forward, the General
Counsel should have offered a copy of RX 12 under the Government’s
next exhibit number for the expanded purpose summarized by the Gen-
eral Counsel at trial. It is not for one party to keep the opponent’s
exhibit number and to offer it for an expanded purpose. However, our
focus was on more important things and I do not fault the Government
on that procedural point.
GALLUP, INC. 1239
Gallup Poll if Gallup employees are represented by a union,
we intend to exercise all of our legal rights to oppose the un-
ion.
Turning now to the questions and answers (GCX 39), I note
that the following (all answers in the original are italicized,
thereby indicating a response by CEO Clifton), have some di-
rect relevance to Clifton’s speech. (Bold emphasis added.):
Q9. Are thee other unions which would make an ac-
ceptable one for us to join?
A. No. Unions, by nature, have very serious political
agendas. They are special interest groups who represent
candidates, issues and ongoing agendas. You become part
of this [special] interest whether you like it or not through
your dues, which support political action committee funds
and so on. The United Steelworkers’ primary mission ap-
pears to me to be safety in the workplace. At their most
recent meeting in Las Vegas, their meeting high point, ac-
cording to the published report on the internet, was paying
tribute to the families who had members “killed or
maimed” on the job as reported by BNA in the Daily La-
bor Report. This is a worthy cause; however, it doesn’t
apply to Gallup. If workers are being killed and maimed
without improvements in safety conditions, this is an im-
portant purpose. However, the presence of a union repre-
senting our employees would generate the appearance of a
lack of independence among many.
Q21. The United Steelworkers Union is a “Union.” A
union of employed personnel of a specific company to rep-
resent specific issues “locally.” If the interviewers are the
same and the researchers are the same and all the data goes
through the same format then specifically how can the un-
ion destroy Gallup’s integrity? The union only enforces
federal law contracts.
A. I understand that employees have the right to vote
for or against a union and support your right. However, I
encourage you to vote no because a union destroys the
perception of, if not the actual independence of Gallup’s
reported results. Unions are perceived as very partial spe-
cial interest groups, and so they are. Rightly or wrongly,
in my opinion Gallup would be perceived as “biased” by a
workplace partnership with a union.
Q92. Reactionary speeches are not the greatest
counter-measure. Perhaps the “qual-serve” or serv qual is
inadequate. Clifton’s appearance will be ineffective
unless changes are made in the way interviewer Charging
Party’s are handled. You can trust that can’t [?] unin-
formed employees will set irrational changes if they feel
“powerless” as Clifton was so fond of saying. Union in-
volvement is ridiculous but so are people. CREATE AN
ALTERNATIVE!
A. Yes. I agree with your point more than any other I
have read or heard regarding this matter. In defense of my
“reactionary” speech, I am more concerned than you will
ever know about the perceptions of “truth and independ-
ence” regarding The Gallup Organization. We live that
perception of trust. The whole world looks to Gallup for
the truth. I am very passionate about our integrity and the
perceptions of that integrity. That is why I rushed to make
a speech containing information that was critical to every-
one, the supervisors included.
While we are considering “context” documents, recall that
early in this decision I quoted from CEO Clifton’s “Welcome”
page in the January 1999 edition of the Interviewer Training
Manual (ITM) where he states (JX 23 at 2):
Gallup has a commitment to quality that no other company in
our industry can match. Nothing is more important to us than
the accuracy and reliability of our data.
And three pages later the training manual (ITM) declares to
the new interviewer (JX 23 at 5):
The “Gallup” name is the most trusted in market research.
b. Discussion
To the General Counsel, the message of CEO Clifton’s
speech is clear. Clifton himself would discharge managers and
risk prison in a foreign land to maintain perceived neutrality
and integrity of the Gallup Poll, “and a vote for unionization
threatened this perceived neutrality and integrity more than any
previous threats.” (Br. at 24) The Government further argues
(id.) that it may be safely assumed that “the employees under-
stood quite clearly that Clifton was therefore willing to go to
similar lengths (discharging employees and violating the law)
to prevent the threat which he believed unionization posed to
Gallup.”
Also, the General Counsel argues (Br. at 25), that Clifton of-
fered “not a shred of supporting documentation, simply the bare
assertion that the future of the Company and the employees was
in jeopardy if unionization took place, thereby automatically
compromising Gallup’s perceived neutrality and integrity.”
As is clear from its pleading and motion, Gallup contends
that CEO Clifton’s remarks are simply opinion speech pro-
tected by Section 8(c) of the Act. Respecting the Government’s
argument about no documentation, Gallup contends that such
was not required because CEO Clifton expressed general opin-
ions and did not make predictions as to the “precise effects”
that would flow from unionization. And it is respecting the
latter, under NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969), that documentation must be cited.
Some 60 years ago a comic book character called “Plastic
Man” was created. In the comics of that day, Plastic Man was
depicted as capable of stretching long distances to reach what-
ever object, person, or place he desired. An arm and hand
could stretch around corners or through windows to grab some-
thing or someone, for example.17 The Government’s argument
here pictures for me Plastic Man’s arm and hand stretching
across a very wide chasm in order to grab a prize. Thus, in
order to connect CEO Clifton’s words with the Government’s
conclusions, the General Counsel becomes Plastic Man and
stretches her arm an impossible distance in order to put the grab
on CEO Clifton on the other side of the gorge.
A major point of CEO Clifton’s May 26 message is that if
Gallup’s independence ever became compromised, then

17 For a brief history of Plastic Man, see
http://plasticman.virtualave.net/
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1240
Gallup’s future would be jeopardized. That is Clifton’s opin-
ion, although it seems clear that it is a common-sense conclu-
sion based on years of experience in his industry. To that opin-
ion Clifton adds another—any association with a union, such as
the United Steelworkers Union, would be perceived as com-
promising Gallup’s independence, and the solid reputation for
trustworthy polls that Gallup had developed over a 60-year
span would be lost.
Clifton expresses that opinion again to say that if the national
headlines were to read, “Interviewers for Gallup work for the
United Steelworkers,” that would change everything—it would
no longer be the Gallup Poll. He then asks if someone will
“draw their guns” with him to, in effect, defend against losing
this 60-year trust. Clifton ends his speech by asking the em-
ployees (JX 6 at 36) to “Please vote no,” and to “Write no” on
anything related to the United Steelworkers so that Gallup can
remain “the [trusted] voice of 260 million Americans.”
In his speech, Clifton employed some hyperbole to empha-
size the connection between the employees, and the Union, and
the public perception. Not making the distinction between
being represented by the Union for collective bargaining pur-
poses, Clifton eliminates the distinction and describes a “per-
ception” tied to data “collected by the United Steelworkers
Union” (JX 6 at 31, 33), and to news headlines that Gallup
interviewers “work for the United Steelworkers” (JX 6 at 34).
Such exaggerations, while factually inaccurate, convey no
threat.
Nor do the colorful phrases of “shoot out” (merely describ-
ing confrontations internal to Gallup) and “draw their guns”
(essentially asking employees to say “No” to the Union) have
any connection to threats about “general reprisals” or a “loss of
their jobs” as alleged in complaint paragraph 23. The problem
with the Government’s case is that it is based on an impossible
stretching. Thus, nothing justifies the stretching made in the
Government’s argument (Br. at 24):
It may be safely assumed that the employees understood quite
clearly that Clifton was therefore willing to go to similar
lengths (discharging employees and violating the law) to pre-
vent the threat which he believed unionization posed to
Gallup.18
This is pure fiction. (In none of the confrontations that he
described did Clifton mention that he violated the law in any
way. Moreover, while he threatened to fire executives and
some Ph.D. analysts because they were not supporting his pro-
gram (JX 6 at 8, 10–11), he never said that he had discharged
any employees.) The Government would stretch from Clifton’s
description of past confrontations, where he has stood firm to
protect Gallup’s integrity, to the desired conclusion that em-
ployees would reasonably understand that Clifton was really
saying that he would violate the law and fire them in order to
prevent the unionization of Gallup. Instead of being a reason-
able understanding by the employees, this really is Plastic Man
stretching far beyond any logical connection. In fact, what

18 The General Counsel’s assumption suggests too much reading of
the lines from Samuel T. Coleridge’s Kubla Khan: “And ‘mid this
tumult Kubla heard from far, Ancestral voices prophesying war!”
CEO Clifton was telling the employees was his opinion that
any connection with a union would create the perception that
Gallup’s interviewers would be tied to a special interest group,
thereby compromising the integrity of their, and Gallup’s, polls.
If that perception took place, the Gallup of 60 years would no
longer enjoy the public’s trust. Employees could prevent this
drastic prospect by saying “No” to the Union.
In his speech, CEO Clifton never threatens that he would
take action against employees in order to prevent unionization
of Gallup. Instead, he urges them to support him and to tell the
Union “No.” The “perception” that he describes as, in effect,
devastating is something that would be generated by the actions
of others, and not by him. Clifton acts to prevent that percep-
tion from ever having a chance to develop by coming to speak
to the employees and to explain to them why he urges them to
tell the Union “No.” I find nothing unlawful about CEO
Clifton’s May 26 speech.
To the extent that, in evaluating CEO Clifton’s speech, the
June 3 Q and A document (GCX 39) and the (about June 2)
“Back to the Basics” memo (RX 12) should be considered from
the standpoint of context and possible animus, I find no animus
present. The “Back to the Basics” memo simply asks employ-
ees to refocus on work so that they can catch up on the work
projects. In no way does this show animus.
An employer is not required to stand back and permit em-
ployees to discuss some topic, any topic, at will. Work time is
for work. If an employer, as do most, permits personal conver-
sations during working time so long as they do not interfere
with work, then fine. But that employer is free to draw the line
when productivity begins to suffer. Employers are free to say,
“Talk during work, if you like, about any topic—politics,
sports, religion, pornographic photos posted on cubicles, or
unions—but just make sure that such talk does not interfere
with productivity.” And if it does interfere with productivity,
then employers are free to tell the employees to refocus their
attention on reclaiming the expected level of productivity. Of
course, employers may not watch productivity drop when talk
about other topics gets excessive, and then tell employees to get
back to work when the productivity drop is associated with talk
about union issues. No disparity has been shown here.
Accordingly, I find no animus reflected in the “Back to the
Basics” memo. Nor do I find that it adds any particular context
for evaluating CEO Clifton’s May 26 speech.
Turning now to the Q and A document (GCX 39), I find that
to the extent it lends context to CEO Clifton’s speech, the con-
text it lends reflects that CEO Clifton’s May 26 speech was
lawful. This tone of lawful context begins on the covering one-
page memo by Vice President Jane Miller with her last para-
graph. In that paragraph (quoted earlier), Miller reassures em-
ployees of their protected right to support or oppose a union,
and she there advises employees that Gallup, using all its legal
rights, will resist unionization in order to prevent “the negative
perception which may develop concerning the independence of
the Gallup Poll if Gallup employees are represented by a un-
ion.” The answers to the questions that follow Miller’s memo
reflect this same lawful description of the situation.
Finally, I also consider Clifton’s speech in light of my find-
ings of contemporaneous unfair labor practices. Although I
GALLUP, INC. 1241
have dismissed most of the independent 8(a)(1) allegations
(respecting events in May and early June), I have found merit
to several (some eight in number). However, these eight inci-
dents do not involve threats of discharge or other retaliation nor
of office closing, nor even coercive interrogations. Instead,
they pertain to overzealous restrictions on the protected activi-
ties of the Union supporters. Accordingly, I find that the few
May 1999 unfair labor practices that I have found add only a
limited “flavor” to the context for CEO Clifton’s speech, and
they certainly do not serve to convert a lawful speech into
something less.
Having now considered CEO Clifton’s May 26 speech (JX
6) both in isolation and in the context of the two roughly con-
temporaneous documents (GCX 39; RX 12), and finding no
animus in any of the three either singly or collectively, much
less the unlawfulness alleged, and also having considered, as
part of the context, the several unfair labor practices found as to
some eight incidents in May, I shall dismiss complaint para-
graph 23.
9. The client visit of August 1999
a. Facts
This final allegation of independent 8(a)(1) is in two parts.
On August 6, complaint paragraph 24(a) alleges, Gallup “in-
structed employees to remove all written materials concerning
the Union from their work areas until August 11, 1999.” By its
answer, Gallup “partially admits” but “denies that such instruc-
tions related only to union material.” (In a moment I address
whether paragraph 24(a) is really intended to be only a factual
allegation laying the background for paragraph 24(b).)
On August 7 and 8, complaint paragraph 24(b) alleges,
Gallup “removed all union materials posted in employees’
work areas.” Gallup denies “but admits that on August 9 the
Respondent removed anti-union t-shirts from interviewer desks
as well as material concerning certain clients of the Respon-
dent.”
For its affirmative defense number VIII, Gallup avers that at
all material times it has adhered to its preexisting policy con-
cerning the cleaning of work areas before and during visits of
clients of Gallup and “made no exception with respect to either
pro-union or anti-union material.”
By an undated memo (but marked as distributed on August
5) addressed, “Attention All Interviewers,” Gallup (by the local
“Managers”) advised (RX 15, emphasis added):
On Monday [August 9] and Tuesday [August 10] of next
week the VISA client will be visiting in the office. As with
every client visit we are again asking you to clean your area!
This means making your desk a professional area. In other
words please take down all information that states any clients
names, unprofessional pictures (you know the ones in bathing
suits) against or pro union materials and any other materials
that have Gallup business on them. We really want to have a
great visit so please make sure your desk is up to par or we
will do it for you—Thanks—Your Managers. PS—You can
put it back up on Wed.
This notice, prepared by Supervisor Heidi Roberts at Super-
visor Uria-Ruiz’s request, was distributed on (Thursday) Au-
gust 5. (2:321, Uria-Ruiz; 15:2946–2947, Roberts) Roberts
testified that, about the Monday morning of VISA’s visit, she
removed union buttons from the desks of Eileen Juneau and
Kathy McCarthy, placing the items in the drawers of their cubi-
cles. From Tim Wong’s desk Roberts “took down” (meaning,
apparently, that the items were posted inside Wong’s cube)
“some pictures of ladies in bathing suits,” and she put those
photos in the drawer of Wong’s cubicle. (15:2947–2950)
Supervisor Uria-Ruiz testified that the visit was by one of
her clients. As she started to leave for the airport to pick up the
client’s representatives, Uria-Ruiz saw some antiunion T-shirts
hanging on the backs of chairs in the executive interviewing
section. She gathered them, folded them, and put them in Su-
pervisor Doug Barlow’s office until after her client left, and
then she returned them to the chairs where she had found them.
According to Uria-Ruiz, she acted in accordance with Gallup’s
policy of removing any nonbusiness item or postings of a com-
petitor of the visiting client. On this visit Uria-Ruiz also re-
moved a poster, posted in one of the cubes, showing a female
model in a bikini. After the client left, Uria-Ruiz permitted the
reposting of the poster showing the bikini-clad model. In
preparation for the visit, Uria-Ruiz also asked Bobbie Solis to
remove some items in an area near Solis of a competitor of the
visiting client, and Solis did so. (Solis confirms. 15:3011)
Uria-Ruiz did not remove any prounion material at this time.
(Rather than suggesting that she knowingly left up prounion
materials, this presumably means that she would have removed
any had she seen it.) (2:316–323; 15:3063–3067)
Eileen Juneau reports that, while all her union materials were
removed from her cubicle (the union materials were posted on
the inside and the outside) on this occasion, other nonwork
items (not described) remained posted. She observed the same
as to other cubicles near her where union supporters had their
union materials removed, but the nonwork items, including
some satanic items, remained posted. Her neighbors had some
nonwork items posted both on the outside and the inside of
their cubes. Among the nonwork items allowed to remain
posted were photos of scantily clad men and women, and none
that she saw was covered. (3:636–642, 662–663, 667–668)
Interviewer Glen Lambert, whose posted union literature
also was temporarily removed for the client visit in August
(3:531, 552), moved from consumer interviewing (night work)
to the day shift for executive interviewing on October 1
(3:539). Lambert gave some testimony about posted photos in
at least six cubicles “that I work around” of “cheesecake” and
beefcake.” (3:534, 552–553, 559) Lambert was not present
during the client visit in August, nor during another client visit
about mid-October. (3:525, 549; RX 16) During the October
client visit Lambert was working days. Clients apparently visit
during the evenings, and it is not clear whether they have any
occasion to visit the area of executive interviewing. Lambert’s
testimony is unclear whether the six cubes with the posted pho-
tos of scantily-clad men and women are in his new area or in
his old (consumer) area. Moreover, the evidence is not con-
nected to any evidence that such photos remained posted during
a client visit.
Lambert reports that when he came to work the October
morning after the client visit the night before (in the consumer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1242
area), there were nonwork items posted (in the executive inter-
viewing area) that had been posted before the visit. (3:537–
538) However, we are not told whether he had arrived at work
before the owners and that therefore he could testify that the
nonwork items (not described) had not just been reposted after
having been removed before the previous evening shift. As
Lambert’s testimony is too generalized, I attach no significance
to it concerning the October posting.
b. Discussion
Although complaint paragraph 24(a) can be read as alleging
that Gallup’s promulgation of its August 5 directive (RX 15) is
either facially unlawful, or unlawfully motivated, or both, on
brief (Brief at 20) the Government relies only on disparity of
enforcement. That is, the Government does not argue that the
rule itself is invalid, but instead argues against only the dispa-
rate manner by which Gallup enforced the directive. This is an
argument in support of complaint paragraph 24(b). It therefore
appears that complaint paragraph 24(a) is intended to be merely
a factual allegation to lay the foundation for the action (removal
of the posted union materials) described in paragraph 24(b). In
its own brief, Gallup addresses complaint paragraph 24 as a
disparity allegation. Although complaint paragraph 27 (the
conclusory allegation) lists paragraph 24 without carving out
and naming only paragraph 24(b) as a violation of Section
8(a)(1), I find that such was the intended allegation. To the
extent that I am wrong, and that complaint paragraph 24(a) is
intended to allege the issuance of the August 5 memo as an
unlawful promulgation, then I hereby dismiss complaint para-
graph 24(a) as based on insufficient evidence.
Turning now to complaint paragraph 24(b), I note that at trial
Gallup referred at one point (3:526) to “special circumstances,”
but on brief (Br. at 170; Reply Br. at 54) Gallup argues that
there was no disparity in enforcement and that, in any event, the
matter was so temporary as to be “de minimis,” meaning, in the
full Latin phrase, that “the law does not concern itself with
trifles.” B. Garner, A Dictionary of Modern Legal Usage 263
(2d ed. 1995, Oxford Univ. Press).
Taking the latter defense first, I see that the cases cited by
Gallup involve situations where the employer quickly corrected
an isolated situation once it was brought to higher manage-
ment’s attention. Those cases do not describe our situation, and
I therefore find the de minimis defense inapposite. (Moreover,
in one of the cases cited on brief, Xidex Corp., 297 NLRB 110,
111, 116 (1989), the Board reversed the judge’s de minimis
finding.)
As to disparity, Gallup errs by confining its analysis to
whether its Houston management enforced the rule equally as
between prounion and antiunion materials. That is only part of
the scene that must be compared. The relevant question here is
whether the union topic itself, pro and con, was disfavored
while other nonwork items (items unrelated to the union issue)
were permitted to remain posted.
It must be said that Gallup failed to show that its supervisors,
or a supervisor designated for the purpose, went through the
office and made a good faith effort to carry out its warning: “or
we will do it for you.” Aside from the limited actions of Su-
pervisors Roberts and Uria-Ruiz, there is no evidence that a
supervisor made an inspection (after the limited removals by
Roberts and Uria-Ruiz) and found the cubes in compliance with
the directive (RX 15). Indeed, although Roberts testified well
after Eileen Juneau, Roberts did not rebut Juneau’s testimony
that Roberts removed only the union materials and left posted
the other nonwork items that included satanic literature and
near-pornographic pictures.
In light of the evidence (including photos, GCX 26) of the
types of almost pornographic photos that are permitted to be
posted inside the cubes, Juneau’s credited testimony, and the
lack of evidence that Gallup made a general inspection to en-
sure compliance with the directive (RX 15), I find that the
Government established disparity of treatment that disfavored
the materials related to the union issue while permitting other
types of nonwork items (including satanic literature and near-
pornographic photos) to remain posted.
An employer is not required to open its bulletin boards (or
walls, doors, or work areas) to the posting of union literature,
flyers, and messages. But if the employer permits employees to
post other nonwork items in such places, it may not exclude
postings about unions. Eaton Technologies, 322 NLRB 848,
853 (1997). Although an employer may show, as an exception
to the rule, that “special circumstances” require the removal of
union postings, mere identity as a union message, as distin-
guished from a posting containing egregious remarks, does not
qualify for the exception. Id. at 853–854. And here the direc-
tive had no restriction such as “egregious” concerning the union
materials, nor did it confine its reach to an excessive number of
posted materials or to the posting of such materials on the out-
side of cubicles.
Also, if we view the situation here as similar to the wearing
of union insignia, and compare the visit of a client here to cases
where employers wish to limit the wearing of union insignia in
areas open to the public, the rule as to special circumstances is
the same. That is, mere customer exposure to union insignia
alone does not constitute a special circumstance allowing an
employer to prohibit the display of union insignia. E & L
Transport Co., 331 NLRB 640, 648 (2000); Meyer Waste Sys-
tems, 322 NLRB 244, 244 (1996). Stated differently, the pres-
ence of union insignia, without more, does not convert a work
area of an otherwise acceptable appearance into a zone of un-
professional appearance.
As the cases report, the “special circumstances” exception
can permit an employer, who seeks to present a certain “public
image,” for example, to restrict the wearing of union insignia or
posting of union materials. Here, however, Gallup does not
defend on the basis of special circumstances, and apparently for
good reason. For example, Gallup did not demonstrate that it
went through the office and made sure that the office was
“cleansed” of everything posted other than, perhaps, some qual-
ity achievement certificates (such as shown photo 7 of GCX 26,
which appear to be awarded to Tim Wong). The special cir-
cumstances exception, however, is not available where the
motivation is unlawful. E & L Transport Co., supra.
Under all the circumstances here, and finding merit to com-
plaint paragraph 24(b), I find that Gallup disparately enforced
its August 5, 1999 directive that employees remove various
nonwork postings, including union-related items, from their
GALLUP, INC. 1243
cubicles temporarily during the visit of a client. By such dis-
parity of conduct, I find that Gallup violated Section 8(a)(1) of
the Act. (Earlier I dismissed complaint paragraph 24(a), to the
extent that it alleges an unfair labor practice, on the basis that
there is insufficient evidence to support such an allegation.)
C. Allegations of Discrimination
1. Introduction
As mentioned at the beginning of this decision, complaint
paragraph 25 names the following four employees as having
been discharged (unlawfully per par. 28) because of (complaint
par. 26) their union activities:
Lynne Zieler — June 22, 1999
Janice Rinehart — June 24, 1999
Sherri Lee — June 30, 1999
Patrick Snyder — August 6, 1999
Admitting the fact of the discharges, Gallup denies that such
violated Section 8(a)(3) of the Act. From its statement of af-
firmative defenses in Gallup’s answer to the complaint, Gallup,
after giving the grounds for the terminations of Zieler, Rinehart,
and Lee, states that each “would have been terminated by the
Respondent even if she was not involved in any union activi-
ties.”
As for the grounds of termination for these first three, Gallup
asserts that Zieler “was terminated for using profanity in a tele-
phone survey with a survey participant,” and that as to Rinehart
and Lee, each was terminated “for falsification of hours
worked.”
Respecting Snyder, Gallup avers that he was terminated “for
making offensive comments to a coworker of a sexual nature
and would have been terminated for this event and prior events
based upon their cumulative effect by the Respondent even if
he was not involved in any union activities.”
Following the General Counsel’s resting of the Govern-
ment’s case in chief (11:2119), Gallup moved (11:2119) to
dismiss complaint paragraph 25 as to Rinehart and Lee. After
hearing argument by both Gallup and the General Counsel, and
after observing that there was too big a risk involved after 11
days of evidence, I denied the motion. (11:2136–2139) At that
point Gallup, as it recognized (11:2140), was put to an elec-
tion—it could either rest on its motion to dismiss as to Rinehart
and Lee, or it could proceed with its defense as to those two
(and as to everything else). If it proceeded with its defense as
to Rinehart and Lee, then Gallup would waive its motion to
dismiss complaint paragraph 25 as to them. See Alexandria
Manor, 317 NLRB 2, 4 fn. 3 (1945). Although most cited
cases usually involve motions to dismiss the entire complaint,
the waiver rule applies to whatever the motion addresses.
In presenting its case in defense, Gallup elected to present its
evidence as to Rinehart and Lee. Accordingly, in making my
decision as to those two, I base it on all the record, and not
simply on the record as of when the General Counsel rested the
Government’s case in chief. Price Chopper, 325 NLRB 186,
193 (1997).
In the never-ending distress of these unfortunate cases, one
wonders whether there will ever be “Harmony and understand-
ing, Sympathy and trust abounding.” Perhaps that age will
dawn: 19
When the moon is in the seventh house, and Jupiter aligns
with Mars. Then peace will guide the planets, And love will
steer the stars.
2. Lynne Zieler
a. Introduction
Zieler’s case is a “whodunit” that would rival some of the
bestsellers if it involved a murder, international or corporate
intrigue, or a threat to national security. My resolution of the
complaint allegation will not solve the mystery.
Hired in January 1994 and fired on June 22, 1999 (5:884,
934), Zieler had worked for Gallup for over 5 years (5:937) at
the time of her discharge. During her time at Gallup, Zieler
never received any discipline. (5:927–928). Moreover, her
quality evaluations (GCXs 3, 4; 1:64–71, Uria-Ruiz), averaging
a score of 49.89 out of a possible 50 points, reflect that she was
just barely shy of perfect. Zieler’s role in the Union’s public
organizing was very prominent. In addition to being one of the
20 signers of the Union’s letter of May 16 (RX 5), Zieler was
the initial spokesperson for a group of the in-plant organizers
that confronted Supervisor Uria-Ruiz on May 14 and asserted
that Uria-Ruiz was violating the National Labor Relations Act.
(1:37–39, Uria-Ruiz; 5:888–889, Zieler; 6:1026; 7:1323, Lee)
A few minutes later, at the mandatory meeting downstairs,
Zieler protested “That’s not true” more than once to statements
about unions that Uria-Ruiz made to all the employees.
(6:995–996) Finally, Zieler was one of four in-plant organizers
(thee of the four are among the discriminatees here) who met
with Supervisor Uria-Ruiz about posting and distribution on
June 4. (GCX 44) I summarized that meeting earlier. Despite
Zieler’s prominent contact with Supervisor Uria-Ruiz (some-
times in the presence of other supervisors), I must note that
Uria-Ruiz was not the discharging supervisor as to any of the
alleged discriminatees here. (2:224–225, Uria-Ruiz)
The sole ground for Zieler’s discharge (initially on June 22,
converted same date to a suspension, pending further investiga-
tion, reconfirmed next day, June 23, 1999, as a discharge) is
that Gallup found merit to an alleged June 17 telephone com-
plaint by an alleged “irate” survey participant (asserted to be
Kevin Kline) that, in an attempted telephone survey on June 7,
Zieler allegedly asked the reluctant Kline, “What is your prob-
lem, asshole?”
Supervisor Stephanie Geiger, the discharging supervisor, as-
serts that Gallup policy calls for automatic discharge if an in-
terviewer uses profanity with a survey respondent (participant).
(13:2508) If such a policy is in writing (and Zieler asserts
(5:937) that such a memo issued just before she was termi-
nated), no copy was introduced into evidence. Even so, Zieler
agrees that such is Gallup’s policy, although it is unclear
whether that agreement is based on anything other than her own
standards and her view of common sense. (5:937–938) Zieler
strongly, and persistently, denies ever using profanity with any
survey respondent. (5:910, 913, 917–920, 935, 937) Because

19 James Rado and Gerome Ragni (lyrics) and Galt MacDermot (mu-
sic). (Aquarius, 1966)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1244
Zieler would have spoken that June 7 with some “300” survey
respondents, she has no way of recalling whether she spoke
with a Kevin Kline. (5:917–918) Gallup’s telephone records
show that a call was placed, using Zieler’s identification num-
ber (IDN) to one “Kevin Kline.” Zieler was at work that day,
claimed as work time the period that included the time of the
call, and made calls before and after the call to Kline. Further
investigation by Geiger and Supervisor Uria-Ruiz during and
after the brief suspension reflects that the call was made from
Zieler’s telephone extension. Still, sabotage is a possible ex-
planation.
As a term, “profanity” is used by the witnesses generically.
They apply it not only in the sense of abusing the deity, but also
using it to cover vulgarities and, presumably, obscenities. Ac-
cordingly, in this decision I use the term “profanity” in a ge-
neric sense that covers all three concepts.
I credit Zieler who appeared to me to testify with a sincere
demeanor and persuasive credibility. However, the question is
what did Gallup, particularly Supervisor Stephanie Geiger,
reasonably believe. If I credit Geiger, does that sink Zieler? If
I do not believe that Geiger acted in good faith, will that, plus
my believing Zieler, serve to establish the Government’s prima
facie case?
Speculation (and some confusion) abounds about the tele-
phone records, records that include not only those of Gallup but
also those of the third party provider, MCI WorldCom. One
thing is clear. The Government does not dispute that Zieler
may have made the June 7 call in question. What the Govern-
ment disputes is that Zieler was rude or vulgar with “Kline” or
whoever answered the call. Consequently, the General Counsel
argues that the Government’s prima facie case is established by
a combination of things. (Br. at 30–31) First, there is all the
animus displayed. (Of course, I have dismissed many of those
allegations.) Second, one example of asserted disparity. Third,
as Zieler credibly denies the accusation (and I credit Zieler),
this “utter innocence,” plus her extensive union activities (there
is no dispute that Zieler was very prominent in her union activi-
ties), plus the antiunion campaign that resulted in “numerous”
acts violating Section 8(a)(1) of the Act (I have found far fewer
than that which is alleged), then “it is apparent that the invidi-
ous purpose for which it [Gallup] invented this alleged miscon-
duct was guided by union animus.” And (Br. at 31):
Respondent contends that, even if Zieler is not guilty of the
conduct alleged, Respondent’s discharge of her was privi-
leged as it took place based upon their good faith belief of
Zieler’s misconduct. This argument must fail, however, as
there is not a shred of evidence to support a good faith belief
that Zieler engaged in this misconduct.
If the Government prevails here, it will have to be on some-
thing other than a finding that “there is not a shred of evidence
to support a good faith belief that Zieler engaged in this mis-
conduct.” Not only is there a “shred” of evidence, there is, as I
have already indicated, a substantial amount of evidence that
Zieler made the call and therefore would be the person who
spoke the vulgarity. (The General Counsel’s “not a shred”
rhetoric makes the Government look silly, and invites me to
distrust any point the Government advances, especially when
expressed by phrases loaded with hot air rather than based on
reason, logic, and record support). Despite such substantial
evidence, the question perhaps will be whether the record
shows (by disparity, for example) that Gallup seized on the
purported incident as a pretext to rid itself of one of the more
prominent supporters of the Union.
I have not overlooked the Government’s surprise witnesses
(on whose testimony the Government also relies to argue in
favor of a prima facie case). I say surprise because it does not
appear that Gallup had advance knowledge of the gist of their
testimony. These witnesses are Kevin Kline and his father,
Donald Kline, with the latter testifying first. Residents of
Pennsylvania, the Klines flew to Houston and denied that any-
one from Gallup had ever been rude to them or called either of
them an “asshole.” (2:250, Kline; 2:265–266, K. Kline). Kline
(the elder) testified that, about June 1999 (2:249, 253–254,
257), he received one call, and only one call (2:253–255, 258–
259, 262), from Gallup, that the caller, a woman (2:250), asked
for Kevin Kline. Kline said that Kevin was not there (Kevin
had moved from his parents’ home on May 15, 2:249–250,
265), and the interviewer said that she was calling on behalf of
(the hospital). Kline replied that Kevin was not satisfied with
his visit because he had been switched from one doctor to an-
other. The interviewer asked no further questions. The call
lasted no more than a minute. (2:249, 254–255) Neither Kline
(2:250, 255–256) nor his son Kevin (2:266) ever called to re-
port that the Gallup interviewer had been rude or called him an
asshole. At the time of the June call, Kline’s son, Kevin, was
22 years of age. (2:249)
The “bombshell” impact of this surprise testimony is dimin-
ished by the obvious fact that it came well after Zieler’s dis-
charge. The testimony of the Klines, whom I credit, certainly
adds to the mystery in the case. With the crediting of the Kli-
nes, does that suggest the possibility that the entire incident was
faked or “planted” so as to sabotage Zieler? There are cases
that involve evidence faked or “planted” so as to provide a
fraudulent pretext for discharging an unwanted employee. I
have presided in such cases myself, as I cite in the recent case
of Parts Depot, Inc., 332 NLRB 670, 720 (2000).
b. Sequence of events
(1) Per Gallup’s witnesses
(a) The complaint
Patty Collette wears several hats at Gallup’s Houston office.
One of her functions is to answer incoming telephone calls.
(12:2414) About 7 p.m. on some date in June, Collette testi-
fied, she answered an incoming call from an “irate” male com-
plaining about a rude interviewer who had called him. Under
standing instructions about such matters, Collette transferred
the call to “mission control,” and then paged on the intercom
for a manager to pick up the call. Later that evening Supervisor
Geiger, on delivering papers for Collette to enter data into the
computer, thanked Collette, in (feigned) sarcasm, for sending
her the call. Geiger then told Collette, “Well, I think I’m going
to have to fire Lynne. He said she cursed at him.” (12:2416–
2420)
GALLUP, INC. 1245
Supervisor Stephanie Geiger testified that she took the call
that June 17. After identifying herself and asking whether she
could help, the caller said that he had received a call for an
interviewer who had called him an “asshole” and who then
hung up the phone on him. Geiger apologized, and the caller
said that he did not want to be called again. To Geiger’s in-
quiry about the interviewer’s name and the date of the call, the
caller said that it was “Lynne” and that the date was June 7 (10
days earlier). Asked for his name and phone number so that he
could be removed from the system and not recalled, he gave his
name as Kevin Kline and number as [I do not make that num-
ber public]. (13:2478–2479) (Although Geiger omits the
phone number from her testimonial description, she has it re-
corded in the “Complaint Log”—JX 16.)
Based on this call, and after Zieler was terminated,20 Geiger
prepared a one-page “Complaint Log” (JX 16) that has four
blocks for information. (13:2477–2478) In the top block of six
lines, Zieler is named as the interviewer, June 7 is the date of
the (survey) call, Kevin “Kline’s” is the name of the (survey)
respondent, and Kline’s telephone number, as given above, is
listed. The second block is for a description of the complaint.
That description reads (JX 16):
When the Respondent refused to do the survey, Ms Geiger
said, “What is your problem, asshole?” The Respondent
called our 1-800# and I spoke with him about the phone call
at which time he told me the interviewer’s first name (Lynne)
& [that] she called him on Monday the 7th.
The third block is for “Action Taken” (13:2478) and reads:
Interviewer was terminated after phone history & phone re-
cords were pulled. The phone history [JX 7 at 2; 14:2859] re-
vealed that Lynne’s id # [IDN] was the only id # that actually
spoke w/the respondent. I pulled the phone record [RX 32 at
4, line 172; 13:2492], the contact was made from Lynne
Zieler’s station [13:2492–2493; 14:2682, Geiger].
The fourth block simply asks for the name of the (supervi-
sor) handling the complaint, and Geiger signed her name there.
(13:2478)
A moment ago I referenced Geiger’s testimony about when
she prepared the foregoing complaint log. I interpret her testi-
mony that, as of the initial discharge on June 22, Geiger had
before her two documents, one of which was the complaint log
(14:2859), to mean that she had the complaint log as completed
through blocks one and two, with blocks three and four being
the “complaint log” that was not completed until “after
(13:2478) the termination.
(b) Geiger’s investigation
As already indicated, it appears that Geiger’s first action was
to fill out the first two blocks of the complaint log. (JX 16)
Second, Geiger then investigated calls to Kevin Kline’s tele-
phone number by checking the “Phone Record Display” as
reflected on the document (JX 7 at 2) in evidence. (13:2480)
A disconcerting aspect is that the testimony could have been

20 On cross-examination, Geiger asserts that at the time of the initial
termination she had before her two documents, one of which was the
complaint log, JX 16. (14:2859) I address this in a moment.
more specific. Thus, at trial Geiger testified (13:2480) that she
first saw the phone record display document (JX 7 at 2) when it
was printed the day before Zieler was fired. By this, Geiger
apparently means on Monday, June 21, before the initial dis-
charge on June 22, since it is one of the two documents
(14:2850) that Geiger had as of the initial discharge.
The implication, however, from the record is that Geiger
pulled documents up on the computer screen for inspection,
perhaps days before the screen, or document, was printed.
Presumably, therefore, Geiger first saw the computer screen
with the phone record display long before June 21, and that
earlier time presumably would have been in the minutes after
she had the conversation with the “irate” caller the evening of
Thursday, June 17. As she describes, to pull up the phone re-
cord display, she simply clicked “F” for “Find,” enters a tele-
phone number (such as the one assertedly belonging to “Kevin
Kline,”) and up pops the screen that we now see as JX 7 at 2.
(13:2483) This screen has additional information not shown on
the screen that faces the interviewer. (13:2482–2483)
In any event, before the initial (June 22) discharge, Supervi-
sor Geiger had the telephone history (another name for the
phone record display, 14:2859), from Gallup’s computer re-
cords, that showed four calls to Kevin Kline’s telephone num-
ber. (JX 7 at 2; 13:2484) The first such call was made on June
7 at 7:34 p.m. and concluded at 7:37 p.m. The interviewer’s
IDN is shown as 3886 (which Zieler concedes was her IDN,
5:934; 6:973). The interviewer logged the call status as “104,”
a code for “nonspecific callback.” Geiger explains that such a
coding means that the number would be called, randomly (by
any interviewer), at some later time. (13:2484–2485)
The second call, also by Zieler’s IDN, was the following
day, June 8, is shown as less than a minute at 4:03 p.m. for
code “101,” meaning “no answer.” (13:2485)
Call three, placed on June 10 at 1:10 p.m. for 2 minutes, was
by IDN 3194, that being the number for Sarah Lakey.
(14:2683) The status code of “104” means that a scheduled
callback time was made. Geiger acknowledges that Lakey
would have spoken with someone at that telephone number
because the status code so indicates. (13:2485; 14:2863–2684)
Call four, placed on June 15 for 2 minutes, was by IDN
3714, Nancy Sico, who logged the call as a code “20,” meaning
a screen failure (JX 31), which in turn means that whoever
answered the telephone was not qualified to answer the survey
questions. (9:1773; Rinehart; 13:2486, 2662, Geiger) A sepa-
rate line, above the calls, has a code “12” followed by the mes-
sage, “doesn’t live here[.] left 1800 #.” Geiger asserts that
such note would have been inserted by the last caller (Nancy
Sico) because it fits only the last call. (13:2488) Geiger inter-
prets the entries to mean that the last caller (Sico) determined
that Kevin Kline no longer lived there. The 800 number was
left, by policy only on request, so that the survey respondent
could call Gallup’s 800 number and register any comments.
(13:2987)
Also on June 22, the day of Zieler’s initial termination, su-
pervisor Geiger ran what is called an “intcheck” pertaining to
Zieler for June 7. (13:2492; 14:2860–2861) “Intcheck,” or “int
check,” is an abbreviation for the term “Interviewer check.”
(1:110, Uria-Ruiz) The term is a name for a computer utility
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1246
program by which supervisors can call up a listing of the calls
made by an interviewer for a given date. It can be used by
supervisors to check the production of interviewers. (10:1904,
1906, Selix; 16:3150, Stipulation) John Selix, a System Ana-
lyst with Gallup (at Lincoln, Nebraska) for the last 11 years
before he testified (10:1794, 1901, 1910), is the “Father of the
Intcheck,” for he created the computer program about 5 years
before he testified. (10:1900, 1904–1905) A supervisor at the
Houston office may review 10 to 15 intchecks a week. (1:112,
Uria-Ruiz) And supervisor Uria-Ruiz, for example, normally
does not print hers, but simply reviews it on the computer
screen. (1:114)
Geiger ran an intcheck (RX 32) as to Zieler for June 7 in or-
der to see if her IDN matched the call in question and to estab-
lish the time that Zieler was working that June 7, and particu-
larly to see if Zieler made phone calls immediately before and
after the call at issue. (13:2494–2495) The intcheck shows that
she was logged on from 10:03 a.m. to 8:03 p.m.—10 hours.
(13:2507) That includes breaks and meal times. This intcheck
has 180 lines of calls (apparently 180 separate calls) for Zieler
(IDN 3886) that June 7. (RX 32) Line (or call) 172, matching
the phone record display (JX 7 at 2) for that June 7, is the call
to Kevin Kline’s number, Geiger asserts. (The numbers on the
two documents so match.) (13:2492–2493; 14:2862) Calls are
shown immediately before and after. (RX 32 at 4; 13:2494)
That would show, Geiger asserts (13:2495), that Zieler (pre-
sumably) “was sitting at her extension the entire time, [and]
that no one else could have come in and used her extension to
make a phone call.”
The source or sources of the data reflected on JX 7 at 2 (the
phone record display) and RX 32 (the intcheck) are not entirely
clear. However, the phone record display (JX 7 at 2) appar-
ently reflects data extracted from Gallup’s database for the
computer screens facing the interviewers. (13:2482–2484) By
contrast, the intcheck is derived from a primary document (the
“LL12”) which itself appears to be drawn from Gallup’s data-
base for its computer generated telephone calls. (10:1796,
1887, 1904, Selix) There may be only one database, but differ-
ent computer programs extract different data to serve different
purposes.
On June 22 Geiger computer generated a third document (a
June 22 version of RX 51), but did not save a copy at the time
(13:2501), that shows the hours worked by Zieler on June 7,
such being 8.30 hours, with 7.40 hours being on the specific
project (Abington) that day. The relevance of this, as Geiger
explains, was to determine whether Zieler claimed production
hours covering the total time shown on the calls made with her
IDN. (13:2498–2507) For this purpose, RX 51 falls a bit short
in that it does not show the specific hours that Zieler claimed as
worked; it merely gives her total of 7.40 hours claimed for that
day on the Abington project. (RX 51). However, when that
information was compared, on June 22, with the 180 calls
shown on the intcheck (RX 32) for the Abington project for that
June 7, one could reasonably assume that the 7.40 hours
claimed included the 3-minute call placed from 7:34 p.m. to
7:37 p.m. One qualification. The calls shown on the intcheck
do not show the actual times of the calls themselves, but only of
the time that the number is on the computer screen. (13:2497–
2498, Geiger) As we see shortly, the actual time of the call
appears to have been a little over a minute.
Although the records do not prove conclusively that Zieler
was seated in her cube at the time of the call on line 170 of the
intcheck (RX 32 at 4), that would certainly be a reasonable
conclusion—as Geiger so concluded (13:2495). During her
cross examination. Zieler confirms that she worked a full day
that June 7 (it was a memorable day to her because she made
money that day), and that her breaks were at times other than
the time in issue. 5:935–936; 6:1006–1007)
In summary, Geiger’s investigation disclosed that (1) Zieler
was working that June 7, 1999; (2) she was ostensibly working
at the time in question; (3) Zieler’s IDN is shown for the call in
question as well as all other calls on that intcheck; (4) Zieler
ostensibly claimed as hours worked time that included the time
of the call to the telephone number given by the complaining
“irate” caller; (5) Gallup’s records showed that the “irate” com-
plainant, giving his name as Kevin Kline, gave a date that calls
were made on the Abington project, including a call made to
the telephone number given by Kline; and (6) that the “irate”
complainant gave the interviewer’s name as Lynne—a name
that matched the name of the interviewer, Lynne Zieler, making
the call per the IDN and the hours of work claimed as well as
Gallup’s phone records.
If falling short of steel-trap proof that Zieler was the culprit,
at the very least it is rather substantial evidence supporting a
good-faith belief that Lynne Zieler made the June 7, 1999, call
to the “irate” complainant. But this is only part of the record.
Will the rest of the record support the Government’s irrespon-
sible accusation (Br. at 31) that Gallup “invented this alleged
misconduct”? I say irresponsible for two reasons. First, at trial
the Government never attempted to shoulder the factual or legal
burden of proving who actually made the call, or of proving
that the “irate” caller (assuming that there was such) was an
imposter and part of a scheme to get Zieler fired. Second, as I
observed earlier, notwithstanding some silly rhetoric (such as
“utter innocence,” noted earlier) in the Government’s brief, at
least some of the Government’s case is that Gallup seized on
the incident as a pretext to cover its true reason of union ani-
mus.
(c) The initial discharge
Gallup’s policy, Geiger testified (13:2508), is that the use of
profanity with a survey participant is grounds for immediate
termination. Indeed, shortly before leaving Nebraska for Hous-
ton, Geiger participated in the May 10 discharge of one Andrea
Uithoven (JX 8) for calling a survey participant an “asshole.”21
(13:2509–2510) It was an easier case there because Uithoven
admitted that she had done so. (13:2510)
[The spelling of Uithoven’s name, not part of the joint cor-
rections for transcript volume 13, GCX 1ppp at 1, is question-
able. Although it could be with a “V” as Gallup suggests, Brief
at 35 fn. 5, I have adopted the “U” as rendered by Geiger
(13:2510) and my own reading of her signature on the exhibit,
JX 8 at 1.]

21 “What is your problem you asshole.” (JX 8 at 2)
GALLUP, INC. 1247
Based on her investigation (and on her knowledge of
Gallup’s policy), Geiger and “the rest of the supervisors” de-
cided to terminate Zieler. (13:2511) Although Geiger’s testi-
monial description is a bit disjointed at this point, she first
called her supervisor, Director of Interviewing Jean
Timmerman (13:2474–2475), and reported the situation.
Timmerman reportedly said that Zieler should be fired. Fol-
lowing that call, Geiger met with Supervisors Chad Murray,
Charles Davenport, and possibly Jason Becerra, and the group
of supervisors decided that Zieler had to be terminated. This
was on Monday, June 21, the evening before Zieler was (ini-
tially) discharged. (13:2511–2513)
Consistent with the version of both sides, Geiger then (at
some point before the termination meeting) prepared (13:2573)
the termination notice (JX 7 at 1), a one-page form dated June
22. In a box of 17 possible reasons, Geiger checked number
12, “Quality—Poor Quality/Not adhering to company stan-
dards—Not Rehireable.” On the lines for “Comments,” Geiger
wrote (JX 7 at 1):
A call was made by Ms. Zieler on 6/7/99 to a respondent on
the Abington POPS study. She spoke to the respondent for 3
minutes on this date. After a subsequent call we received a
complaint directly from the respondent on our 1-800 number
on June 17th. In this call, the respondent identified an inter-
viewer named Lynne that had badgered him relentlessly. He
said he wasn’t going to do the survey. She persisted. (This is
a violation of hospital interviewing policy.) The respondent
was then asked “What is your problem asshole?” This behav-
ior is unacceptable and a violation of our mission.
The following evening, June 22, supervisor Chad Murray es-
corted Zieler to supervisor Geiger’s office. Geiger then in-
formed Zieler that a survey participant who, identifying Zieler
by (first) name, and specifying the call date as June 7, had
complained that in the attempted survey, when he told Zieler
that he did not want to do a survey, Zieler then said to him, just
before she terminated the call, “What’s your problem, ass-
hole?” Zieler replied that she did not remember the call, and
asked whether she was being terminated. To this question Gei-
ger answered “Yes.” At that point, apparently, Geiger tendered
the termination notice to Zieler for her to sign, but Zieler de-
clined without offering any explanation in her defense. After
asking whether she could leave, Zieler left Geiger’s office. The
termination meeting lasted only a few minutes. The termina-
tion notice bears the signatures of Geiger and Murray, plus
Geiger’s note that Zieler had refused to sign. (13:2510–2511,
2513–2514)
(d) The suspension
Later that evening of June 22, Zieler, accompanied by Sherri
Lee and Janice Rinehart, met with supervisor Geiger. Supervi-
sor Uria-Ruiz joined the group and, later, so did supervisor
Chad Murray. (13:2514–2515) At this meeting Zieler stated
that someone else had logged in with her IDN and made the
call. Zieler asked to see the records, and requested a copy, on
which Geiger was relying. Geiger said that she would check
the next day to see whether she could give Zieler a copy. Uria-
Ruiz (2:215) said that the telephone extension needed to be
checked, and Geiger told Zieler that she would do so (13:2517).
At that point Zieler’s termination was converted to a suspen-
sion. (13:2518; 14:2858–2859)
Supervisor Geiger concedes (13:2519–2522) that, on June 23
during the suspension stage, four employees (Marion Trovato,
Catherine Wagley, Nancy Sico, and Beverly Robinson) came to
her and said that they had never heard Lynne Zieler use profan-
ity at any time, but that they had heard interviewer Sarah Lakey
use profanity on numerous occasions. All four were among
those who had signed the Union’s May 16 letter (RX 5) notify-
ing Gallup of the in-house organizing committee. Geiger told
them that if they heard profanity again they should come tell
her so that she could investigate it. [At trial, two interviewers
who opposed unionization testified that, in normal office con-
versations, Zieler used “the F-word,” would say “shit” all the
time, and her normal vocabulary was “consistent with” that of a
“longshoreman” (12:2431–2432, Coffey), and that, in such
normal conversation, Zieler “cussed like a sailor” (12:2443–
2444, Niehouse). I do not believe either Coffey or Niehouse.
Apparent friends, both appeared to be testifying from a bias
against Zieler rather than truthfully reporting factual observa-
tions, and the excessiveness of their characterizations of Zieler
detracts from their credibility.] The follow-up check by super-
visors Geiger and Uria-Ruiz disclosed that the telephone call to
Kline’s number came from Zieler’s extension, number 259
(Zieler acknowledges that such was her extension, 5:934;
6:978) and lasted for 1.3 minutes. (13:2489–2491; JX 7 at 3)
As a result of the allegations against Sarah Lakey, Geiger
also checked the record to see whether Lakey had spoken with
Kline. The investigation disclosed that no contact was made,
Geiger testified. (13:2522; JX 7 at 2) Actually, as Geiger ac-
knowledges (13:2522), the phone record (JX 7 at 2) reflects that
Lakey (IDN 3194; 13:2485; 14:2863) did reach Kline’s number
on June 10 (JX 7 at 2; 13:2523) and that, in speaking with
someone at Kline’s number, Lakey was asked to call back later
at a specific time. Lakey therefore coded the call as “104,”
meaning a scheduled time to call back. (13:2485; 14:2863–
2864, Geiger) From this, Geiger concluded that the only per-
son who spoke with “Kline” on June 7 was Lynne Zieler.
(13:2525)
At trial we learned that MCI’s records do not show that
Zieler’s call of June 8 (coded as a no answer) or Lakey’s call of
June 10 (coded as a specific callback) reached Kline’s number.
These are the second and third calls shown to Kline’s telephone
number in June as of the day before the initial discharge. That
is, MCI’s records do not show that a connection was made for
those two calls. (12:2350–2355; 15:3001, Compagna; RX 46 at
1; RX 63 at 3)
Gallup (Br. at 38–40) suggests an explanation that appears to
clarify some of the evidence. Thus, the fourth call (that of June
15 by Nancy Sico) that resulted in “screen failure” (meaning, as
noted earlier, that no one was present eligible to answer the
survey) and the removal of Kline’s phone number from the
system because Kevin Kline had moved (13:2486–2489, Gei-
ger), squares with the testimony of Donald Kline, Gallup sug-
gests (Br. at 40), that in the only conversation he had with the
interviewer who called, he told the interviewer (2:254–255, D.
Kline), “Kevin’s not here,” that Kevin was not satisfied with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1248
his visit to the hospital because he waited “for an hour, and they
switched him from one doctor to another.” Marking this a
“screen failure” and leaving an 800 number “would have made
sense,” Gallup suggests. And, to the point, “ . . . it also ex-
plains the timing of the complaint call which Geiger received
on June 17, 1999 from the person identifying himself as Kevin
Kline.” (Br. at 40)
Although Gallup does not elaborate on its “explains the tim-
ing” suggestion, it appears that Gallup seems to recognize that
there is a problem with the fact that the date of June 7 is 10
days earlier than the date the “irate” male called. Later, when I
discuss the overall case as to Zieler, I address this matter fur-
ther.
(e) The final discharge
Geiger and Uria-Ruiz then met with Zieler on June 23 in
Uria-Ruiz’s office along with supervisor Chad Murray plus
Sherri Lee and Janice Rinehart. After reporting the results of
the additional investigation, Gallup (apparently by supervisor
Geiger) terminated Zieler. (13:2517–2518, Geiger; 5:927;
6:977–979, Zieler) During the meeting, Zieler states, she made
the point that she definitely would not have left the phone num-
ber (Kline’s) in the system had she in fact called him a vulgar
name. (5:926) Geiger’s response, if any, to that logic is not
recorded. Indeed, as Zieler there noted, an interviewer can
code a call in any way. (5:926) Thus, had she really called
someone a vulgar name, all she would have to do, as we have
seen earlier, is to code it as a “screen failure” and the number
would have been removed from the system. Consistent with
this logic, Gallup’s phone record display (JX 7 at 2), one of the
records on which Supervisor Geiger relied, reflects that the
very next day, June 8, Zieler again dialed (Kline’s) number—a
highly unlikely act had she just called him a vulgar name the
day before. (She coded that call as a busy signal.) Supervisor
Geiger denies that Zieler’s union activities played any part in
her discharge. (13:2519)
(f) Geiger calls “Kline”
Toward the end of June, Supervisor Geiger testified, she
telephoned “Kline” to inform him of the results of her investi-
gation. Supervisor Jason Becerra was sitting behind Geiger at
Mission Control. [As with Geiger (13:2466), Becerra (1:38–39,
Uria-Ruiz) is no longer employed at Gallup. Becerra did not
testify.] Geiger asked for “Mr. Kline,” and a male voice an-
swered “Yes.” Recounting the fact that she had spoken with
him earlier about his complaint, she asked for something in
writing because the matter would probably turn into a legal
issue. “Kline” said that he did not want to be contacted again
and, raising his voice, he said that he had told her not to call,
that he did not want to be bothered. Saying that it was very
important, Geiger asked if he would help. Replying that he did
not want to be called again, “Kline” hung up the phone.
(13:2527–2528) MCI’s telephone records (RX 46 at 3; RX 63
at 1) show a call to “Kline’s” number on June 28. The call was
placed shortly after 4 p.m.22 (12:2356, 2367–2368) The call
lasted 2 minutes (1 minute 59 seconds, to be exact).

22 Per the time at the “switch” which in this case is at Philadelphia.
(12:2358; 15:3001–3002, Compagna)
Kline operates his business from his home. Subcontractors
sometimes are in his house. Although the subcontractors
“normally” would not answer Kline’s telephone, Kline asserts,
he acknowledges that such would be “possible.” (2:260–261)
Thus, although not likely, it is “possible” that a subcontractor
answered Supervisor Geiger’s telephone call of June 28 and
that Geiger spoke with a subcontractor rather than with Kline.
Whatever happened in this portion of the mystery, I find that it
was not Donald Kline that Geiger spoke with. Moreover, as
Gallup considered “Kline” to be an older man (1:147, Uria-
Ruiz), it likely was not Kevin Kline who was just 22 at the time
(2:249).
On brief (Br. at 30), the General Counsel argues that Gei-
ger’s account is “utterly incredible” in view of the denials by
the Klines, disinterested witnesses who flew in from Pennsyl-
vania to testify. Typically, the General Counsel’s head-in-the-
sand argument is no help, for it fails even to mention the MCI
telephone records, much less suggest how to resolve the dispute
in light of those records.
(2) Zieler’s additions
The prominent difference between Zieler’s account and Gei-
ger’s is that Zieler supplies more details. Most of the extra
details are not essential. Contrary to Geiger’s description of
Zieler’s reaction at the initial discharge meeting (June 22), I
credit Zieler. Thus, I find that, on being informed of the details
of the complaint, Zieler said, “Absolutely not. Never hap-
pened.” Geiger then “whipped out” the termination paper,
saying “Well, it did happen, he called; can you sign this; you’re
terminated.” (5:910) Saying that she would not sign the paper,
Zieler reiterated, “I did not do it and I will not sign anything
that says I did. If that’s your final decision, then I guess this
conversation is over.” Zieler then left. (5:910, Zieler)
A little later that evening, after talking with Union Represen-
tative Fennell, Zieler changed her position to a willingness to
sign with the qualification, “I did not do it,” for the purpose of
obtaining copies of the termination documents. (5:911–913)
As noted earlier, the bottom line on this is that Gallup would
not agree on the ground that the papers were the private prop-
erty of Gallup. At this second meeting, the “suspension” meet-
ing, Sherri Lee argued that in the past Gallup had exercised
“discretionary justice,” and that some managers had supported
the interviewers. (5:914) Janice Rinehart said that anyone
could have made the call. Geiger replied no because Zieler was
the only person to talk with the complainant that day, that he
knows her name, the date of the call, and he asserts that she
used profanity. When Supervisor Uria-Ruiz said that no one
could use another’s IDN, Sherri Lee reminded her of the occa-
sion that Sherri Lee had demonstrated how to confirm who had
an IDN by typing in her IDN, for the computer then simply
asks, “Are you Sherri Lee, yes or no?” (5:914–915)
At trial Zieler, credibly asserting that she never gave her IDN
to anyone (6:972, 1013), elaborated on the process of obtaining
the name matching an IDN by explaining that such is done
when someone forgets her IDN. In such cases, the forgetful
interviewer simply types in the code “DAI” (JX 23 at 88; RX
35 at 88) and the computer then discloses the IDNs that Gallup
has for the different projects. [The interviewers, including
GALLUP, INC. 1249
Zieler, colloquially interpreted these code letters as standing for
“Dumb–ass interviewer.” 5:915] Then, by locating the particu-
lar project and inserting those IDNs, the person can ascertain
the matching interviewer names. That is, the computer brings
up the name of the person whose IDN is entered by asking, in
the case of Sherri Lee, “Are you Sherri Lee, yes or no?” More-
over, interviewers working the same project simply learn, over
time, the IDNs of the other interviewers on that project. (5:915;
6:964–965, 1014–1018) As Sarah Lakey worked the same
Abington project as Zieler, and even spoke with someone at the
number in question here on June 10 (JX 7 at 2; 14:7863), the
implication, from the standpoint of this line of argument, is that
Sarah Lakey (who did use profanity, as Geiger acknowledges
several employees told her on June 23) could have obtained
Zieler’s IDN and herself called complainant Kline and ended
up calling him an obscenity.
Also at the suspension meeting Janice Rinehart kept asking
whether Gallup was taking every investigative avenue, and
asking why Gallup was taking the stranger’s word over that of
Zieler, when there was no tape of the asserted conversation.
Indeed, Janice Rinehart asked, how could the interviewers
know that such a person really had called. Geiger said that she
could pull more records and determine from whose “phone
pad” the call was made. Supervisor Chad Murray said, “That’s
irrelevant, irrelevant. It’s going to show that you [Zieler] called
the number at this time of the day, and the [survey] respondent
named you personally by name, [and] you’re the only one that
could have talked to him.” (5:919–920)
At first glance the final discharge meeting, on June 23, ap-
pears to have an odd sequence, for it is during this meeting that
Geiger receives an answer to her email to Nebraska that morn-
ing asking for the telephone extension number from which the
call to the Kline’s number was made on June 7. Thus, on June
23 Glen Kallhoff of the headquarters computer staff emailed
Geiger that the extension number was 259 (Zieler concedes that
was her extension number, 5:934; 6:978), and that the call
lasted 1.3 minutes. (JX 7 at 3) Adding to all the mysteries, by
an earlier email that morning, Kallhoff had advised Geiger,
“We are not capturing all calls going out of Houston.” (JX 7 at
3)
Respecting the four employees that Janice Rinehart took in,
one at a time, to report to Supervisor Geiger about Sarah
Lakey’s use of profanity, Rinehart credibly testified that Geiger
told her, in advance, that she would listen only to reports about
incidents in the past, and not about the current incident involv-
ing Zieler. (9:1731, 1734, Rinehart) During her own testi-
mony, Supervisor Geiger did not rebut this assertion of
Rinehart.
The explanation for the odd sequence of the meeting (further
investigation still in progress) is that Zieler, on her own, in the
late morning came to the premises in a renewed effort to obtain
copies of the termination papers and also of her personnel file.
Learning that most of the supervisors were at a luncheon meet-
ing, she waited on the premises until they returned not long
after the lunch period. (5:921–922, 956–957) In short, the
final meeting began because of Zieler’s presence, not because
the additional investigation had been completed. Even so, Su-
pervisor Chad Murray’s opinion seems to have been even more
solidified, for he remarked about as he had done at the previous
meeting, except this time he sounded more final, adding, “and
it’s just going to show that you did it, no matter what we inves-
tigate.” (5:924, Zieler)
At about that point (5:924; 6:976–978, Zieler) it was Murray
himself who pulled up a screen on the computer [a copy of
which became, it appears, RX 7 at 3] and apparently read from
Glen Kallhoff’s email at 1:29 p.m. that date to Geiger reporting
that the call in question had last 1.3 minutes and had been
placed from extension 259. As noted earlier, Zieler acknowl-
edges that her extension number was 259. (5:934; 6:978) The
meeting ended with Zieler’s being discharged. (5:927, Zieler)
During this final discharge meeting on June 23, as Sherri Lee
credibly describes, and respecting the rejection of Zieler’s re-
quest for a copy of her termination papers (6:1055) Sherri Lee
asserts (6:1055–1056) that, in the past, Gallup gave terminated
employees copies of their termination papers. She recalls this
specifically as to one Michelle Rinehart who was terminated in
either 1997 or 1998. Lee personally saw the papers. I note that
this is a point that Lee apparently did not voice at the meeting,
but told us at trial. Even so, Gallup did not respond at trial to
explain, for example, either that Lee’s testimony was incorrect
or that Gallup had since changed its policy before the union
matter arose. Although the General Counsel makes no argu-
ment based on Lee’s revelation, I find that it is a factor to be
considered in the overall analysis of Zieler’s case.
The final item of confirmation that would had to have been
done after the final discharge meeting was the verification by
supervisors Geiger and Uria-Ruiz that extension 259 was the
phone that rang in the cube that had been used by Zieler. Gei-
ger testified that she and Uria-Ruiz called that extension, as
Geiger stood by Zieler’s old cube, and the telephone in Zieler’s
old cube rang. (13:2490–2491) Although Uria-Ruiz did not
testify that she dialed extension 259 on that occasion, Geiger
testified that “They” walked over to the cube and the extension
was ringing. (13:2490–2491) By this test, Geiger (assisted by
Uria-Ruiz) completed all the investigative checks that Supervi-
sor Uria-Ruiz had listed (2:214–215) at the suspension meeting.
In crediting Lynne Zieler, I have considered the EEOC
charge that she filed in September 1999 alleging gender and
age discrimination as well as retaliation for speaking up for
employee rights as protected by that statute. (RX 31; 5:944–
946) The filing of the EEOC charge is not inconsistent with
her claim here (5:938, 944) that she was fired only for her un-
ion activities. (She later stated that it was for all three (four)
reasons. 5:945) Because there can be multiple reasons for a
discharge, and because one or more reasons may be covered by
different statutes, as here, multiple charges covering those sus-
pected reasons are not inconsistent. In any event, the theory of
the case comes from the General Counsel, not from the Charg-
ing Party (the Union here), and certainly not from the alleged
discriminatee. All that said, in weighing credibility, I have
counted as a negative Zieler’s initial statements that union con-
siderations formed Gallup’s “only” reason for firing her.
(5:938, 944) Although Zieler corrected that to include the rea-
sons alleged in her EEOC charge (5:945), such a switch de-
tracts from her credibility. But overall, I find Zieler to be a
credible witness with a generally persuasive demeanor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1250
c. Disparity
To show disparity in treatment, the Government points to a
November 1998 situation involving interviewer Marion
Trovato. Trovato testified that she was reassigned from the
hospital “track” on which she was working (JX 26) based on
several complaints.23 Her supervisor, Joan Dorwart, told her
that one of the complaints was that she had said “goddamn” to
the survey participant. Trovato denied it, explaining that she
did not use that language. Dorwart said that she had conferred
with Supervisor Uria-Ruiz, and that, based on their experience
with Trovato and on monitoring tapes of other survey calls,
they did not believe that she used impolite language, and for
her to be “softer.” (Thus, it is not clear that Dorwart explained
anything to Uria-Ruiz other than a complaint of “impolite”
language had been registered against Trovato.) However, 2 or
3 weeks later Dorwart came to Trovato and, telling her that
there had been five complaints against her in 2 days, said that
she would have to be reassigned. Dorwart said that she thought
Trovato had been “sabotaged,” but she declined to disclose the
name of the person or persons that she suspected. (2:376–378,
389–395)
Asked about the Trovato situation, Supervisor Uria-Ruiz tes-
tified that, as reported to her, the complaints against Trovato
were because of a perceived rudeness flowing from her New
York accent during her calls to people in Alabama. (1:54–57;
2:217–218; 15:3067–3069) Trovato’s testimony about the
profanity, as opposed to a complaint about rudeness, is diluted
somewhat by the testimony of Government witness Catherine
Wagley. Now Trovato recalls that Wagley was present when
Supervisor Dorwart delivered the news about the profanity
complaint. (2:376–377) However, although Wagley did walk
in on the conversation, it was the occasion that Trovato was
being removed from the track after five alleged complaints in 2
days (not the profanity complaint that was registered 2 or 3
weeks earlier). (2:417–418)
Although I credit Trovato, who testified in a persuasive fash-
ion, it is questionable whether much, if any, weight can be as-
signed to this matter. Not believing the complaint, Supervisor
Dorwart told Trovato to be “softer.” But all this was before the
five complaints (for “rudeness,” apparently) that got Trovato
reassigned. Thus, the disparity is limited in that it pertains to
the “discretionary justice” of one Supervisor—Joan Dorwart.
Moreover, there is no evidence that anyone in management
knew of the nature of the complaint other than Dorwart. Thus,
the complaint apparently was lodged directly with Dorwart
(2:377), and the nature of the complaint apparently remained
with Dorwart. Accordingly, I find that Supervisor Dorwart’s
“discretionary justice” favoring Marion Trovato does not pro-
vide any basis for finding that Gallup, and particularly Supervi-
sor Geiger, failed to exhibit good faith by not extending leni-
ency to Lynne Zieler as an act of “discretionary justice.”

23 “Track” is the term commonly used to describe surveys that are
continuously worked for a particular client (such as a hospital) of
Gallup in order to “track” opinion over a period of time. (1:76–77,
Uria-Ruiz; 2:378–379, Trovato) Interviewers generally prefer track
work to one time surveys. (Id.)
Although not mentioned by the Government on brief as an-
other disparity example, evidence was presented at trial that
Supervisor Chad Murray condoned, or does condone, inter-
viewer Laura Harris’ calling him obscene names in the pres-
ence of other employees. (3:512, 544, Lambert; 4:746–747,
Snyder) To some extent, Murray concedes, but he emphasizes
that Harris, with her habit of rough language, has never chal-
lenged his supervisor authority. (15:2983–2985) Whether such
acts by Harris constitute improper work behavior is for Gallup
to say, but it is clear that such conduct has no relevance to the
use of profanity toward survey participants.
d. Discussion
As previously suggested, on the surface there is substantial
evidence that Gallup, by Supervisor Geiger, conducted a rea-
sonable investigation even before the initial discharge of Lynne
Zieler the early evening of June 22, 1999. The additional in-
vestigation reflected that the call of June 7 to “Kevin Kline”
was from Zieler’s extension 259. Thus, when the discharge
became final the early afternoon of June 23, Gallup’s records
showed that the evening of June 7 Zieler had called Kline’s
number (on the June 7 that he complained about, and that his
complaint named “Lynne”), that Zieler had dialed other num-
bers immediately before and after and had claimed hours for a
full day (all indicating that Zieler was working in her cube
when the call to Kline’s number was made), and that the call to
Kline’s number came from Zieler’s extension 259 (as reported
by email—actual verification that extension 259 rang in
Zieler’s cube was not made until after the final discharge).
To overcome this formidable array of defensive evidence,
the Government launched a surprise attack. That is, rather than
grapple with the defensive “line” by running or passing, the
Government simply attempted to float over it in a colorful hot
air balloon. Alas, supplied by too much heated gas, the Gov-
ernment’s brightly colored balloon simply rose out of the
briefs, and was last seen lifting toward the heavens where it can
soar forever on inflated rhetoric in that great balloon land in the
sky.
Back on earth, the rest of us have to deal with reality, and the
reality is that the telephone records (Gallup’s and MCI’s) must
be acknowledged and addressed. The General Counsel, on
brief, argues for a finding of violation almost entirely on the
basis that the Government’s witnesses (primarily Zieler and the
Klines) should be credited and those of Gallup (primarily Su-
pervisor Geiger) should be disbelieved. The General Counsel’s
passing reference (Br. at 30) to MCI’s records is that such re-
cords, and the testimony of MCI Representative Dyanne Com-
pagna, do not demonstrate that “Zieler had a conversation with
Donald Kline in which she called him an ‘asshole’ as alleged.”
The General Counsel’s placing of the burden on Gallup to
prove Zieler’s guilt is a result of the Government’s confused
articulation of the correct legal standard to be applied. At dif-
ferent points the General Counsel seems to be arguing under
the analytical structure of Wright Line, 251 NLRB 1083 (1980),
(for example, “pretextual,” Br. at 28), only to end up arguing
about the “utter innocence” of Zieler, plus her extensive union
activities, giving “rise to an inference that it was those union
activities that caused Respondent to discharge her for conduct
GALLUP, INC. 1251
which never took place.” At that point (Br. at 31 fn. 15) the
General Counsel cites Teledyne Still-Man, 295 NLRB 161
(1989), enfd. 911 F.2d 1214 (6th Cir. 1990), the only case au-
thority cited by the General Counsel respecting Zieler’s case.
Teledyne Still-Man is inapposite because the analytical focus
there was on discharges for strike misconduct—acknowledged
discipline for misconduct during protected activities—a con-
cept governed by NLRB v. Burnup & Sims, Inc., 379 U.S. 21
(1964). But the cases of Zieler and the others here are the tradi-
tional motivational-discharge situations controlled by the ana-
lytical structure of Wright Line. That means that it is the Gen-
eral Counsel’s burden to prove unlawful motivation, such as by
showing pretext by in turn demonstrating either disparity or that
Supervisor Geiger did an inadequate investigation and other-
wise acted in bad faith. In that connection, the General Coun-
sel’s inflated rhetoric about an inference of unlawful motivation
based on Zieler’s “utter innocence” plus her union activities
simply will not do. Nor will it do for the General Counsel to
rest on rhetoric claiming (Br. at 31) that Gallup “invented this
alleged misconduct” of Zieler. No amount of overheated rheto-
ric, as illusory a crutch as it is, will serve as some MacBethian
incantation by the witches, “Eye of newt and toe of frog, Wool
of bat and tongue of dog,” to magically produce a prima facie
case that Gallup did in fact invent a fraudulent complaint
against Zieler. It takes hard evidence, not incantations.
So let us start at the beginning—the General Counsel’s prima
facie case, or lack thereof. The General Counsel argues that the
Government’s prima facie case is established by:
1. Zieler’s exemplary record.
2. Zieler’s very prominent role as one of the in-plant
organizers.
3. Animus reflected in the 8(a)(1) allegations.
4. Credibility resolutions favoring Zieler and the Kli-
nes.
5. Disparity (the Marion Trovato incident).
6. “Not a shred of evidence to support a good faith be-
lief that Zieler engaged in this misconduct.” [Br. at 31]
Reformulating the last item from the inapposite legal theory
to fit the correct legal standard, I interpret it to read: “Supervi-
sor Geiger conducted a cursory investigation or otherwise acted
in bad faith.” Items 1 and 2 are undisputed, and item 4 is estab-
lished. For the moment, grant (contrary to some of my find-
ings) the Government item 3 as to every 8(a)(1) allegation in
the complaint. As to item 5, no relevant disparity is shown, as I
summarized earlier. In short, the Government’s case comes
down to the last item. For the Government to show a prima
facie case, even if all of its 8(a)(1) allegations were to be found
meritorious, it still must prevail as to reformulated item 6.
Without a finding that Supervisor Geiger acted in bad faith, the
General Counsel fails. As I have summarized earlier, the un-
disputed evidence is that Geiger’s investigation, if not quite
perfect, was adequate and reasonable at the very least. That
investigation, as of the final discharge on June 23, pointed di-
rectly at Zieler as the culprit. Moreover, the General Counsel
made no effort to show that Geiger acted in bad faith.
Even if I were to find in favor of reformulated number 6
(that Geiger conducted a cursory investigation or otherwise
acted in bad faith), and further find that I disbelieve her denial
that Zieler’s union activities played any part in her discharge,
would that still be enough to find that Zieler’s discharge was,
prima facie, unlawful? I think not, for that does not address the
telephone records. Thus, in the absence of disparity to show
pretext, there must be, I find, a number 7:
7: Fraud. The telephone records (both Gallup’s and
MCI’s plus the June 23 email specifying Zieler’s exten-
sion 259) are frauds containing planted data, or, such re-
cords are legitimate but are rendered untrustworthy, and
therefore to be disregarded, by virtue of findings that rele-
vant entries are the result of fraud.
One more mystery to add to the others is just how the Acting
Regional Director decided to include Zieler in complaint para-
graph 25. Presumably Region 16 obtained a copy, during the
investigation of the charge, of the intcheck (RX 32) and of what
ultimately became JX 7 (the termination paper plus the attached
phone record display of the calls made and the attached page of
the emails on June 23, including the final one from Glen Kall-
hoff sealing Zieler’s doom by reporting that the June 7 call to
Kline’s telephone number came from (Zieler’s) extension 259.)
I say presumably because Gallup cooperated in the investiga-
tion of the charges by at least giving affidavits from Supervisor
Uria-Ruiz (1:43–44, GCX 2) and from Supervisor Geiger
(14:2851, GCX 59) (neither affidavit offered in evidence).
Even if Region 16 did not have the June 23 emails, with
Zieler’s extension number, but did have copies of the intcheck
(RX 32 at 4) and the phone display record (JX 7 at 2), then
Region 16, in issuing a complaint that included Zieler, had to
have a factual theory that would overcome the documents
pointing to Zieler as the culprit. Without that factual theory
(and the Trovato situation could not be counted as a disparity to
show pretext), the Acting Regional Director apparently issued
the complaint relying on the arguments as presented here in the
General Counsel’s brief (confused commingling of the legal
standards, and no factual theory of liability under the correct
legal standard). That being so, the Government should be re-
lieved that this is not an EAJA case, for if it were, the Govern-
ment possibly would risk being faced with an order to pay
Gallup allowable attorney’s fees and expenses as to the Zieler
portion of the complaint. Because there are some important
similarities between litigation and war, the Government would
profit from considering an observation that Napoleon made in
penning a letter in September 1806:24
In war, nothing is achieved except by calculation. Everything
that is not soundly planned in its details yields no [favorable]
result.
So, does the Government lose here as to Zieler? Well, there
are some troubling items underneath the surface. First, why
would Donald Kline (assuming that he was the “irate” caller)
wait 10 days to call and complain? Who among us remains
“irate” after a 10-day cooling off period? Still insulted, even a
tired anger, but “irate”? And with Kline credited, the strong

24 Peter G. Tsouras, editor, The Greenhill Dictionary of Military
Quotations 363 (2000).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1252
suspicion arises that the “irate” caller, assuming that there was
one, was an imposter fraudulently planting an accusation for
the purpose of sabotaging Zieler. Who prompted the imposter?
Did Gallup? Did antiunion employees on their own devise this
sabotage scheme, including a method of manipulating the tele-
phone records even to show Zieler’s extension 259? If so, what
about the phone records of the third party, MCI, that essentially
support Supervisor Geiger? Many questions, but no answers in
the record.
Second, note the nearly identical language involved in An-
drea Uithoven’s May 10 discharge (JX 8, “What is your prob-
lem you asshole?) just before Supervisor Geiger came to Hous-
ton, and the short question with the same vulgar term of which
Zieler is accused. Is the nearly identical nature of the two
statements mere coincidence, or did it possibly serve to suggest
to Geiger, and to Gallup, a convenient fraud to plant in order to
get rid of Lynne Zieler? Such a fraud is credible on the surface
and difficult to disprove (typical characteristics of many
frauds), particularly if planted by someone with access to
Gallup’s computers and a knowledge of Gallup’s processes
(that is, if planted by an insider). Having credited Zieler and
the Klines, and aware that Supervisor Dorwart was of the opin-
ion that an interviewer, such as Marion Trovato, could be
“sabotaged,” I am of the view that someone or some group
“framed” Lynne Zieler, an exemplary 5-year employee, and is
getting away with the perfect fraud.
Third, why did Supervisor Geiger feel compelled to express
(with apparent callous indifference) to Patty Collette, the recep-
tionist that June 17, that Geiger thought she would “have to fire
Lynne” because an “irate” stranger claimed that Zieler had
“cursed at him”? Probably before any investigation at all,25
Supervisor Geiger thought that she would have to fire an exem-
plary employee with over 5 years’ of service to Gallup? Does
this slip (and it surely was a slip of some kind) unwittingly
reveal Geiger’s participation in a secret conspiracy with Gallup
(a conspiracy that the evening of June 17 an “irate” male would
call and accuse Zieler) to get rid of Zieler because of her
prominent union activities? Or does it merely show that, as of
June 17, 1999, Geiger was a bit too cocky—even callous—
despite being a relatively new and inexperienced supervisor?
(Hired in March 1995, Geiger served as an interviewer in Ne-
braska for “3.8 years” before becoming a Supervisor there
about January 1999. Her first day on the job in Houston was
May 17. 13:2466–2467, 2636.)
Fourth, why was Supervisor Geiger so eager to “whip out”
the termination form at the June 22 initial discharge and, con-
tradicting this exemplary employee’s solid denial (“Absolutely
not. Never happened. 5:910), almost gleefully inform Zieler,
“Well, it did happen, he called; can you sign this; you’re termi-
nated.” (5:910) Where was any semblance of managerial con-
cern (by Geiger, by her superior Jean Timmerman, or the other
participating supervisors, Chad Murray, Charles Davenport,
and possibly Jason Becerra) that an exemplary employee was
being discharged? Is that the Gallup way, that exemplary em-
ployees with over 5 years of service, even if they justifiably are

25 Geiger’s comment focuses on the claim, and does not reflect, as of
that early point, that Geiger had yet checked any of the records.
to be discharged, may be terminated in a manner exhibiting not
even minimal courtesy, but callous indifference? If Gallup has
a written policy about treating employees with fairness, cour-
tesy, and respect, no copy is in evidence.
Fifth, why would Supervisor Geiger, at least during the sus-
pension period, not ask Sarah Lakey whether she had spoken
with “Kline” on her call of June 10 rather than relying on her
interpretation of Gallup’s phone display record? Granted,
Lakey may well have said that she could not recall, but the
concern here is about good faith, the appearance of fairness,
and the lack of any motive to disregard any conflicting facts
while proceeding to “nail” Zieler. The failure to check with
Lakey in person does not exhibit good faith.
Sixth, before Janice Rinehart brought in witnesses on June
23, during the suspension period, to report that they had heard
Sarah Lakey, but not Lynne Zieler, using profanity, why would
Supervisor Geiger have excluded the current Zieler incident
from discussion? Geiger does not tell us. Although there is no
evidence that Geiger was not told something about the June
incident that may have been of substantial, perhaps critical,
importance, it is Geiger’s closed-mind approach that concerns
me. I count this as a negative.
Seventh, why did Gallup depart from its past practice by re-
fusing Zieler’s request for a copy of her termination papers (JX
7, at least pages 1 and 2 if not also the page 3 emails) after
Zieler changer her position and agreed to sign under protest?
This smacks of kicking Zieler after she already was down. I
count this as a negative.
Despite these troubling concerns, I am constrained to note
that the one item that really damages the Government’s case is
the email report from one Glen Kallhoff (JX 7 at 3) that the
June 7 call (to Kline’s number) was placed from (Zieler’s) ex-
tension 259. (Kallhoff did not testify and we have no details
from him on how the database he derived this from picks up
this information, or whether that information could be manually
entered by someone, even overriding what the computer auto-
matically registered. Of course, in the normal situation, some-
one such as Supervisor Geiger would have no occasion to doubt
the accuracy of such a report.) Tying Zieler to the extension
number as the source of the call, given the intcheck lines show-
ing that Zieler apparently was in her cube making a series of
calls at this time, sealed Zieler’s fate as of the final discharge
on June 23.
Turn now to grounds 6 and 7. As to reformulated ground
number 6 (that Supervisor Geiger conducted a cursory investi-
gation or otherwise acted in bad faith), I find that, on the sur-
face, Geiger’s investigation, as of the initial discharge on June
22, was reasonably close to adequate even though lacking a tie
to Zieler’s extension number. The initial investigation, there-
fore, was much better than merely cursory. During the suspen-
sion stage, however, I find a negative factor respecting Geiger’s
refusal to listen to any information from employees concerning
the charge against Zieler. I also have found as a negative factor
Gallup’s refusal to give Zieler copies of her termination papers,
contrary to past practice.
Moreover, Supervisor Geiger’s callous attitude toward a
good employee such as Lynne Zieler, and Geiger’s seeming
eagerness to dispatch Zieler, plus Geiger’s lack of a satisfactory
GALLUP, INC. 1253
demeanor respecting this part of the case, persuades me that
Supervisor Geiger was not acting in good faith. This includes
the finding that I disbelieve her denial (13:2519) that Zieler’s
union activities had anything to do with Zieler’s discharge and
her assertion (14:2849) that Zieler would have been discharged
regardless of her union activities. Further, I disbelieve Geiger’s
testimony about a June 28 call to and conversation with
“Kline.” Respecting the disbelief of a negative (the denial),
note that the mere disbelief of a negative, without more, does
not establish the positive of that which is denied where the
burden of proof to show the affirmative is on the party (the
General Counsel here) obtaining the disbelief findings. Such
disbelief findings merely supplement positive findings. Stated
differently, complaint allegations must be established by posi-
tive evidence, and disbelief findings of denials, standing alone,
will not substitute for the burden of establishing the allegations
by affirmative (positive) evidence.
Just what does my finding of bad faith by Supervisor Geiger
prove? Certainly such bad faith is consistent with a theory of
fraud (ground number 7). It also is consistent with a theory that
Geiger secretly harbored a personal dislike for Lynne Zieler.
However, there is zero evidence of the latter, and perhaps no
more than that of the former. In short, the finding of bad faith
on the part of Supervisor Geiger is not enough to establish a
prima facie case of unlawful motivation. There must be more
than a mere inference from Geiger’s bad faith that all (or the
relevant data in) the records were doctored on orders from top
executives at Gallup. (Yet science infers the existence of a
“black hole” from the actions of nearby stars.) Thus, the fact
that Geiger’s bad faith actions would be consistent with a mas-
ter plan of fraud, dictated by top Gallup executives, does not
prove the existence of such fraud. There has to be a support-
able finding either that the telephone records (of both Gallup
and MCI), plus the email showing the extension number as 259,
were fraudulently manipulated so as to indict Zieler, or a sup-
portable finding that top executives, either on direct orders
from CEO Clifton, or prompted by expressions from Clifton
similar to the ones (“shoot out” and “draw their guns”) in his
Houston speech of May 26, on their own issued such orders to
manipulate. Recall that earlier I dismissed complaint paragraph
23 that (in conjunction with paragraph 27) CEO Clifton’s
speech violated Section 8(a)(1) of the Act.
In some cases there is direct evidence of the fraud by which
the boss directs an executive to falsify records so as to justify
the discharge of an employee. Thus, consider this from the
recent case of EEOC v. Premier Operator Services, 113
F.Supp.2d 1066, 1071 (N.D. Tex. 2000):
Testimony of Defendant’s former management offi-
cial, and Vice President, Marvin McCroy, established, by
direct evidence, a violation of Title VII’s prohibition
against retaliation. Mr. McCroy testified that Eric Brown,
owner and President of Defendant, adamantly required
that employees acquiesce to the blanket English-only pol-
icy or be terminated. McCroy testified that signing the
English only memo signified agreement to the policy as a
condition to continued employment. Mr. McCroy also tes-
tified that the president expected him to be an “enforcer”
of the policy, and that he did enforce it.
. . . . With regard to some class members, McCroy was or-
dered by Brown to write that their terminations were “volun-
tary” although they were not.
Defendant stipulated that one Charging Party, Fran-
cisco Gracia, achieved the third highest call completion
rate out of 31 operators during the last pay period before
his discharge; and McCroy testified that the other Charg-
ing Party, Albert Estrada, was one of Defendant’s top per-
formers. Nevertheless, the Defendant’s President ordered
that backdated disciplinary notices be added to their per-
sonnel files, after the fact, to justify their terminations.
In other cases, the evidence, although less direct, is substan-
tial, as in the case I cited earlier (and in cases cited there), Parts
Depot, Inc., 332 NLRB 670, 720 (2000).
Here I find no evidence of fraudulent manipulation of the re-
cords (telephone and email) by, or at the direction of, Gallup’s
management. True, I am very skeptical of those records. That
skepticism is based largely on the lack of complete details
about how the database is created, the records generated, and
whether such records, or even the database, can be fraudulently
manipulated to falsely indict an interviewer. This skepticism
feeds a strong suspicion of actual fraudulent manipulation (by
persons unknown) that resulted in the discharge of a very good
employee, Lynne Zieler. Thus, I find that the General Counsel
has failed to establish crucial ground number 7. This failure is
fatal to the Government’s case as to Zieler. It was the General
Counsel’s burden to prove ground number 7 as part of the Gov-
ernment’s prima facie case. Ground number 7 was not some
optional choice that the General Counsel could select or de-
cline.
As it appears (from the arguments in the General Counsel’s
brief) that the Acting Regional Director included Lynne Zieler
in the complaint without any viable theory (factual or legal) of
liability by Gallup concerning Zieler’s discharge, it is clear that
the allegation as to Zieler was doomed from the start. Accord-
ingly, I reluctantly shall dismiss complaint paragraph 25 as to
Lynne Zieler.
3. Janice Rinehart
a. Introduction
As mentioned in the introduction to the discrimination alle-
gations, respecting the June 24 and 30, 1999 discharges of,
respectively, Janice Rinehart and Sherri Lee, Gallup alleges, as
an affirmative defense as to each, that each was terminated for
“falsification of hours worked,” and that both would have been
so terminated by Gallup even if there had been no union on the
scene. Although I summarize the cases of Rinehart and Lee
separately, the basic description of procedures, terminology,
and similar matters that I give in a moment apply to both
Rinehart and to Lee.
Early in this decision, in the statement of the case, I noted
that Rinehart and Lee were members of the Union’s in-plant
organizing committee and that each had signed the Union’s
May 16 letter (RX 5) to Gallup. Rinehart and Lee were among
the in-plant organizers who were the most visibly active in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1254
communicating with, and confronting, the local management,
such as confronting Supervisor Uria-Ruiz on May 14, just be-
fore the mandatory meeting of that date, when Lynne Zieler
handed Uria-Ruiz the one-page union flyer (GCX 49) ad-
dressed to managers and supervisors, and advising them, that
“You Are Violating The Law! if you . . .” (followed by a list of
nine examples of unfair labor practices, including discrimina-
tion, threats, and interrogation). (5:888–889, Zieler; 8:1688–
1699; 10:1934, Rinehart)
Also tendered to Uria-Ruiz at this May 14 meeting was a
copy of the Union’s letter (RX 5) announcing the organizing
drive and containing, at the bottom of the page, the signatures
of the 20 in-plant organizers. The signatures of Janice Rinehart
and Sherri Lee are among the 20 (with Rinehart’s being the first
in the first column from the left margin and Lee’s being in the
second column). In the minutes of the mandatory meeting that
followed, Janice Rinehart is shown, near the middle of the first
page, as announcing the date of the first general union meeting.
(JX 18 at 1) At trial, when asked by Gallup’s lawyer about
Rinehart’s comments, Supervisor Uria-Ruiz states that Rinehart
stood and spoke without invitation. (2:282)
Then at the June 4 meeting with Supervisors Uria-Ruiz and
Chad Murray, Rinehart and Lee, along with two other in-plant
organizers (Eileen Juneau and Lynne Zieler), were present for
the in-plant committee. Rinehart left about one-third the way
into the meeting, after she received an answer to her question of
Uria-Ruiz on whether the “Grim Reaper” posting (by employ-
ees opposing the Union) had been approved. (GCX 44 at 5) Of
those four in-plant organizers in the June 4 meeting, three
(Rinehart, Lee, and Zieler) were fired and are three of the four
alleged discriminatees here (with Patrick Snyder, not at this
meeting, fired on August 6, making the fourth). At trial,
Rinehart served as the General Counsel’s designated assistant
exempt from the sequestration order. (1:32, 37; 16:3167)
Hired September 4, 1996, Rinehart worked for Gallup as a
telephone interviewer until she was fired in a meeting with
Supervisors Geiger and Barlow on June 24, 1999. (8:1686;
9:1736; 10:1931, Rinehart; 12:2276–2277, 2282, 2299, 2304,
Barlow; 13:2677, Geiger) Although interviewers are expected
to reach and maintain a quality level of at least 48 out of a pos-
sible score of 50 (JX 23 at 19, ITM), Supervisor Barlow con-
cedes (12:2400–2401) that not all interviewers do so.
Rinehart’s 25 evaluations averaged a score of 49.48 (GCX 14)
out of a perfect (1:64) score of 50. (1:181) Such reviews are a
measure of quality (JX 23 at 19) and not of hours (1:182, Uria-
Ruiz), and the issue as to Rinehart is not quality, but an alleged
falsification of hours worked. Even so, the General Counsel
argues (1:183) that there is relevance to Rinehart’s very high
quality scores because there is a logical connection between the
work ethic that achieves a standard of exemplary quality, and
the same work ethic that strives to reach, and usually does
reach, the highest levels of quantity (whether in production or
in hours worked). As we see in a moment, Supervisor Barlow
takes the issue a step further through his opinion, stated at trial,
that Rinehart cheated (that is, she was dishonest in recording
her hours), and there was, in his opinion, a purpose to her
cheating. Even to attempt to understand all this, we will need a
general understanding of Gallup’s complicated pay system.
The only evidence that Rinehart had ever received any prior
discipline is a May 20, 1999 written warning (JX 3) for “Har-
assment.” The parties did not address this warning at trial
(other than, the first morning, to put it into the record by stipu-
lation, 1:8, 14), nor on brief. The written comments by Super-
visor Chad Murray are that several employees had complained
that Rinehart had interrupted them while they worked in order
to promote the Union. Rinehart was warned that any “further
harassing activity may result in termination.” Signing under
protest, Rinehart wrote that the accusations were false and
lodged because she was trying to organize a union, a right pro-
tected by law. No complaint allegation attacks this warning.
b. Overview
(1) Termination meeting
Gallup discharged Janice Rinehart for allegedly falsifying
her work hours for the week of (4 days, actually) Monday, June
14, through Thursday, June 17, 1999. (1:58–60; 13:2676, Gei-
ger; RX 53; JX 9) For that week of 4 days (Rinehart generally
liked to complete her weeks by Thursday, 11:2104–2105),
Rinehart submitted paysheets (GCX 16 at 1–4) showing a total
of 40.5 work hours under the column heading for “Actual
Hours.” Supervisor Geiger, however, calculated Rinehart’s
“actual hours” for those 4 days to be 28.7. (13:2676; RX 53)
Although Rinehart was a member of Supervisor Geiger’s
team, and Geiger did the investigation and calculated the num-
bers, there is no dispute that Supervisor Barlow took the lead at
the June 24 termination meeting in Geiger’s office When Bar-
low informed Rinehart that the foregoing discrepancy was the
reason that she was being terminated, Rinehart exclaimed that
the discrepancy was “impossible” because she arrives early,
works late, and that Barlow is well aware of her long hours.
(13:2678, Geiger) Geiger testified that Barlow (who confirms,
12:2299) responded (13:2678):
I have no doubt that you’re here 40 hours a week, but you’re
only working 28.7 of those hours.
Rinehart asserted that she worked what she had claimed.
(9:1740, 1785) Production was not the issue. Barlow told
Rinehart that she had produced very well, but the problem was
with the hours claimed. (91739, 1784; 11:1984, Rinehart)
Barlow acknowledges that he said (12:2300), “Well, I recog-
nize that you’re a high producer, but this doesn’t go to your
high production. I goes to hours recorded.” Geiger added,
“Janice, this is nothing against you personally. You’re a very
high producer, but we cannot have you lying on your hours.”
(9:1743, 1783, Rinehart) “Well, it didn’t happen,” Rinehart
replied, but she was in “total shock” at that point. Thus, when,
in response, Geiger offered to show the records to Rinehart,
Rinehart declined and left after signing the termination notice
(JX 9) that Barlow placed before her. (9:1742–1744, Rinehart)
In signing the termination notice, Rinehart added the follow-
ing protest (JX 9; 9:1742; 13:2680–2682):
I don’t agree with this at all. It is trumped up charges once
again because of my union involvement.
Based on Gallup’s practice (13:2681, Geiger), Rinehart’s re-
quest for a copy of the termination notice was denied by Super-
GALLUP, INC. 1255
visors Barlow and Geiger. (9:1742–1743; 13:2681) Filed June
25, 1999, the charge in Case 16–CA–19898–3 was amended to
include the discharge of Janice Rinehart. In September
Rinehart filed an EEOC charge (RX 36) alleging discrimination
based on gender, age, and retaliation. Part I of Rinehart’s
statement of particulars on the charge asserts that she was dis-
criminated against because of her activities through the “We
Care About You Committee.” Recall that such committee is
the name adopted by the Union’s in-plant organizing commit-
tee. (11:2097) The existence of such companion charges are
generally irrelevant to the proceeding before the other federal
agency because there may be more than one moving motivation
for a discharge. In theory, Gallup could have fired Janice
Rinehart because it resented not only her union activities, but
also her age and gender and to retaliate against her for exercis-
ing her statutorily protected rights, as Rinehart essentially as-
serts. (10:1932–1933). Other than saying that she thought she
was fired for her union activities (10:1932), Rinehart, unlike
Zieler (5:938, 944) and Sherri Lee (7:1304–1305), never asserts
that it was the “only” or “sole” reason. Accordingly, I attach
no impeachment weight to the EEOC charge or to Rinehart’s
testimony about the matter.
Respecting his testimony about the admitted desire to keep
high producers, Supervisor Barlow stated that such goal has to
be balanced with an overriding requirement that Gallup’s em-
ployees maintain high ethical standards respecting such mat-
ters. (12:2300–2301) Indeed, Gallup’s ITM (the interviewer
training manual mentioned earlier in the statement of the case)
provides, as the opening sentence under the topic on “Ethics”
(JX 23 at 18): “You have been hired because you are ethical!”
As part of the “Data Collection Agreement” (JX 23 at 61), ap-
parently signed by Janice Rinehart and all other interviewers,
each interviewer agrees, in part, to “uphold the high ethical
standards by following all survey instructions and by accurately
collecting and recording the data as stated by each respondent
[survey participant] interviewed.”
In Barlow’s opinion, in light of Rinehart’s experience and
training, and because the total discrepancy was so large,
Rinehart’s individual discrepancies were the result of cheating
by Rinehart—a knowing misrepresentation of her hours—done
for the purpose of avoiding the work required to maintain her
status as a member of the 35-hour team and to avoid being
bumped to the lower pay scale of the 25-hour team. (12:2302–
2304) Before moving to the next topic, I pause to note that the
record gives no direct explanation of why Supervisor Barlow
generally presided (9:1784, Rinehart) at Rinehart’s termination
when Rinehart was a member of Supervisor Geiger’s team and
when Geiger was over the Adventist Hospital track (10:1926–
1927). Since May 1998, Barlow, as his exclusive duty, has
been managing the Executive Interviewers. (11:2142–2143)
Geiger testified that she did not want to terminate Rinehart
because Rinehart was a very productive interviewer and Geiger
liked her personally. (13:2626–2627) Perhaps it could be in-
ferred that Barlow generally handled the termination because
Geiger perhaps would have been less than comfortable in doing
the deed.
(2) Gallup’s pay plan
(a) General description
That brings us to the need for a brief description of Gallup’s
pay system. It is undisputed that the telephone interviewers are
not paid by the hour. As I shall explain in a moment, they do
have an hourly pay rate that affects the pay that they receive,
but it is not a salary or the typical wage rate that results, after so
many hours worked, in a sum of money. As Rinehart testified,
the pay system is very complicated. (11:1980) Sherri Lee
describes it as a piece rate system. (6:1191–1192; 7:1276)
Actually, the current pay system, chiefly devised by Supervisor
Barlow (who is known as the “Father” of this pay plan,
11:2179), was designed to simplify the older plan (RX 4 at 2),
and presumably did so. The new plan was installed as a pilot
program in Houston in early May 1998, and went nationwide
on June 1, 1998. (RX 4 at 2)
(b) Two major components
Although several, even many, factors affect pay, Gallup’s
new (1998) pay system for interviewers has two main compo-
nents. (The old system had the same two concepts, but just
used different terminology.) First, productivity, and second,
time (both terms mine). Under the first or productivity cate-
gory (not to be confused with other terms that Gallup has for
referring to production), there is no dispute that Gallup pays the
telephone interviewers a specified amount per completed tele-
phone survey—called “pay per completes,” or PPCs. (The
amounts vary according to the nature of the study or project
being done for a client.) Thus, should an interviewer be
unlucky enough to call a survey participant who wants to
“vent,”26 the interviewer must listen, as Janice Rinehart fre-
quently had to do on the hospital “track.” (11:1997–1998)
Obviously, even a completed survey in that situation takes
longer than one which zips through with no venting. And
should a participant decide to hang up after having vented his
frustrations, then the time has been lost and the interviewer has
made no money. (Rinehart occasionally was successful in re-
dialing such a person and persuading him or her to finish the
survey. 11:2048) Not all is lost by such a call, however, be-
cause the time spent on the phone qualifies, as we shall see, as
part of the interviewer’s “actual hours.”
Focus now on the second, or “time,” category. As already
indicated, interviewers are members of one of five teams that
are defined in terms generally by the number of weekly hours
[not just plain hours, but “actual hours”] that the members
commit to work (such as 35 hours, 25 hours, 15 hours, and 10
hours), and also by hourly pay rates for each such team. Thus,
at the time relevant here, the Premier and 35-hour teams were
at the $11 per hour pay level, the 25-hour team at $9, the 15-
hour team at $7, and the 10-hour team at $6. (1:45, 89, Uria-
Ruiz; 11:2183, Barlow; RX 4 at 3; GCX at 1, last line in box)
Premier Team members commit to 40 hours a week. (1:46,
Uria-Ruiz; 13:2531, Geiger) That team has its own topical
description in the ITM. (JX 23 at 35) Premier members have
some additional perks, such as overtime when desired, and a

26 Janice Rinehart testified that Gallup trains the interviewers to let
survey participants “vent.” (11:1997–1998)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1256
program that provides a percentage of a child’s college tuition.
Among the eligibility requirements are career evaluation scores
averaging 48 or higher, 13 payroll months on the 35-hour team,
and the unanimous approval for membership from all of the
location’s managers. (JX 23 at 35) As Supervisor Geiger testi-
fied, “typically” the Premier Team consists of “the top produc-
ers of the locations.” (13:2531) In late May 1999, as Geiger
recalls, the Premier Team had some 12 to 15 members.
(13:2531–2532) Janice Rinehart was one of those members.
(1:44–45, Uria-Ruiz; 13:2531, Geiger; GCX 16)
(c) Pay per completes
As interviewers are not paid an hourly wage rate or salary
(1:46, Uria-Ruiz), the significance of the team base rate ($11,
$9, and such) is that the PPCs assertedly are based on such pay
rates. (1:47, 87, Uria-Ruiz; 12:2303, 2395, Barlow; RX 4 at
3—“All PPCs are based on these rates.”) This suggests that
such team base rates are used as multipliers (not simply as an-
other factor to be considered) in computing the relevant PPCs.
As Supervisor Uria-Ruiz explained, members doing a specific
survey will receive a higher PPC if they are on a higher level
team. (1:47) An example of this is seen in the paysheets in-
volved in this case, specifically the sheets of those working on
Adventist project (“Startup Code”) W470 on June 16. [As seen
on the paysheets, there also is an “Access Code,” that being
6942 for this same project, and that number is used a few times
in the record. For this project there also is a project number, as
shown on one of the documents. (RX 54; 13:2579, Geiger)
Because the intcheck (GCX 54) pertaining to Janice Rinehart
uses the startup code (W470 respecting the principal Adventist
project here), and cross referencing is to the intcheck, I shall
use the startup code, rather than one of the other code numbers,
to identify a specific project.]
For that June 16 and Adventist W470, Janice Rinehart, a
member of the Premier Team, received a PPC of $2.20 (GCX
19 at 1); Lisa Miller, as a member of the 35-hour team, re-
ceived the same (GCX at 3); Catherine Wagley, a member of
the 25-hour team, received $1.80 (GCX 19 at 6); and 15-hour
team member Joy Jones received $1.66 (GCX 19 at 4). The
supervisors at each location set the PPCs (RX 4 at 4) based on
their consideration of a variety of factors (11:2193–2194, 2196,
Barlow), none of which, as set forth in the ITM (JX 23 at 21) or
described by Supervisor Barlow (11:2194–2195), is the dollar
figure ($11, $9, and such) of a team’s base rate.
A moment earlier I said that the base rates of the teams are
“assertedly” used as factors in computing the relevant PPCs. I
say “assertedly” because, aside from the fact that the team lev-
els produce, as shown, different PPC amounts, there is no inde-
pendent verification in the record, such as a formula or detailed
example, to show just how the $11 hourly rate, for example,
rather than some other figure, is applied as a factor in arriving
at the relevant PPC. Even if the supervisors do apply the stated
dollar amounts in some fashion (even as multipliers), they are
free to adjust other factors to reach a desired PPC. Thus, con-
sider a comparison of the pay rates with the PPCs for Adventist
W470. It is an 18.18-percent drop from $11 an hour to $9 per
hour, and the 40-cent reduction in the corresponding PPCs
($2.20 to $1.80) is the same percentage drop. Not so when we
compare the change from $9 to $7 (a 22.22-percent drop) with
the 14 cent reduction in the corresponding PPCs of $1.80 to
$1.66 (a reduction of 7.78 percent). Fortunately, this case does
not turn on verification of the PPC formula, and I mention this
gap in the record only because the parties appear to accept as
gospel that the dollar factor as used (even if as a multiplier) in
establishing a PPC is an actual mirror image of the dollar figure
of each team’s base rate.
(d) Alleged falsification
What is involved here, however, is the allegation that
Rinehart deliberately falsified the recorded time that she
claimed in order, as Barlow believes (as noted above), to keep
from being bumped to the lower pay of the 25-hour team. In-
deed, most of us would consider a pay cut of 18.18 percent to
be a severely adverse event. The correlative moral and eco-
nomic importance of this to Gallup, Supervisor Barlow testified
(12:2303), is that Gallup was cheated by being charged the
higher rate associated with the Premier Team when in fact (ac-
cording to Supervisor Geiger’s figures) Rinehart only worked
enough hours (“actual hours” is the technical term, as we shall
see) to qualify her for the 25-hour team’s 18.18 percent lower
rate. Never mind that Rinehart, in obtaining 59 completes on
June 16, for example, came within one completed survey of
reaching 100 percent of the goal (quota as it is informally
called27) of 5 completed surveys (9:1777; 11:2052, Rinehart)
per hour (60 completes) for Adventist W470. What mattered
was the asserted falsification of claimed “actual hours.”
But wait. Did Gallup jump the gun? Return to the training
manual (ITM) and the compensation requirements set forth
there. Under the heading for “Gallup’s Compensation Policy,”
the paragraphs there include the following information (JX 23
at 22):
In order to meet your team’s requirement, you must satisfy
the following criteria. Your pay will be based on your team’s
pay scale if all requirements are met. At no time during your
employment will you be paid below minimum wage. A pay
period consists of two consecutive weeks.
In order to be eligible for 35-hour team pay, you must
have worked a minimum of 70 hours for the pay pe-
riod, or 75 if it is an extra five-hour work week.
. . . .
Examples:
. . . .
2. If you are on the 35-hour team and work 35 hours
the first week and 30 hours the second week, you will
have worked a total of 65 hours for the pay period. This
does not satisfy the minimum 35-hour team requirement,
but does satisfy the 25-hour team requirement. Therefore,
you would receive the 25-hour team pay.

27 11:2180, Barlow. Previously it was officially called “quota.” (RX
4 at 2) Witnesses still speak in terms of surveys completed (“com-
pletes” or “surveys”) per hour or per shift in reference to whether they
have made the “quota” set for the project.
GALLUP, INC. 1257
Notice that the Premier Team is not mentioned here, but is
covered later under its own topical heading. (JX 23 at 35)
Under that topic, aside from the mention that the Premier Team
is for those who commit to 40 hours per week, there is no men-
tion of the factors set forth above concerning, for example, the
35-hour team. At times in the record it appears that references
to a person may be as a member of the Premier Team or the 35-
hour team as if membership in those two teams is interchange-
able. That is not so by definition in the ITM, but it does sug-
gest that, in some respects, certain provisions apply to both.
The most obvious example of this is that the pay rate of $11 is
the same. And it seems unlikely that members of the Premier
Team would be paid on a weekly basis while everyone else is
paid every 2 weeks. I therefore find that the general concepts,
set forth above respecting the 35-hour team, apply also to the
Premier Team. This finding does not resolve what numbers
Gallup would apply. It does mean, however, that a member of
the Premier Team has 2 weeks to maintain her standing on that
team. I so find. Just what number, whether 70 hours, 75 hours,
or even 80 hours, is not established in the record. The point
here, however, is that a member of the Premier Team would
have the next consecutive week to work whatever overtime was
necessary to make up any shortfall in the “actual hours” of the
first week in order to maintain her standing on the Premier
Team. (The parties do not address this point on brief.)
What is the significance of the foregoing finding? Recall
that, at least as described by Supervisor Barlow, Gallup had
two concerns. One, Rinehart lied on her paysheets. Two,
Gallup suffered an adverse economic consequence. The termi-
nation document (JX 9), prepared by Supervisor Geiger
(13:2680), states:
Violation of Data Collection Agreement—falsified actual
hours which led to inaccurate pay.
Under the Data Collection Agreement (not an employment
contract, but at least a written understanding that the interview-
ers sign when hired) any falsification of data on the “paysheet”
will result in termination and the offending employee will be
“bumped to minimum wage for the pay period.” (JX 23 at 62)
In accordance with my finding above, I further find that
Janice Rinehart had the usual 2 weeks to work and make up any
shortfall in her hours so as to maintain her standing on the Pre-
mier Team. Even if she were to fall to the 35-hour team, the
pay rate would still be $11 per hour. I therefore also find that,
contrary to Supervisor Barlow’s assertion, Gallup did not suffer
an immediate economic loss by Rinehart’s asserted misconduct
because Rinehart had an additional week to make up any short-
fall in actual hours. Indeed, as Sherri Lee credibly describes,
sometimes supervisors even excuse a shortfall, or told the em-
ployee to make it up the following week—a “rollover.”
(6:1241–1242; 7:1279–1281, 1310, 1312) Although the con-
cept was not litigated, a rollover possibly is an informal proce-
dure that sometimes would be utilized in place of the formal
procedure of “overrides.” Overrides are mentioned in the ITM
(JX 23 at 23), in the “Payroll Contract” (GCX 34 at internal
67), and by Sherri Lee (7:1281). Also, as we see when we get
to Patrick Snyder’s case, Supervisor Geiger describes the situa-
tions when work gets slow and supervisors can grant “exemp-
tions” for a specified time from the weekly hours requirement.
(13:2688) The termination, however, was based on Supervisor
Geiger’s calculations of (and interpretation of) the numbers for
the 4-day period of June 14 through June 17, 1999. (13:2676,
Geiger) That leaves the one ground of lying on the paysheets
(about a matter that eventually would affect pay). That, of
course, is a serious and legitimate ground by itself, and the Data
Collection Agreement so advises those who sign (and Rinehart
presumably signed one).
(e) Interviewing costs?
I do not overlook Barlow’s testimony that Gallup bills its
customers based on “our hours that are put to the projects,” so
Gallup therefore needs accurate records to support its billings.
(11:2189; 12:2279) In that connection, respecting how Geiger
came to check Rinehart’s hours, both Geiger (13:2547) and
Barlow (12:2278–2279) tell us that it had to do with investigat-
ing the concept of Gallup’s “interviewing costs” on the Advent-
ist project. It seems that Tracy Stinson, the project administra-
tor (in the Nebraska office, 13:2547), called Geiger and ex-
pressed the desire to see Gallup’s profit margin increased on
the Adventist project. Thus, Stinson asked Geiger to see if the
quota on the project could be set higher and the hours needed to
complete the project lowered. As to the latter, Stinson report-
edly thought that the project was taking too many interviewer
hours for the number of completes being achieved. (13:2547–
2548) Stated differently, Stinson reportedly thought that the
ratio of completes per interviewer hours was too low. Follow-
ing Geiger’s review of the situation, the quota for the Adventist
track was not raised. (14:2869)
It seems strange that the supervisors, especially Barlow
(12:2278–2279), would be pointing to “interviewing costs” and
suggesting (11:2189) that Gallup’s clients are billed (per a “set
agreement,” 12:2279) on the basis of the “hours” worked on the
projects. Gallup has a variety of incentive pay bonuses that are
mentioned in the record (RX 4 at 3–5; JX 23 at 34), with most
apparently related directly or indirectly to the attained PPCs.
Gallup certainly would have many overhead costs. And Gallup
has a “budget” for each project (12:2278). Notwithstanding all
this, what we have learned is that Gallup pays its interviewers
for completed surveys. For each project that Gallup seeks to do
for a customer, one logically would infer that Gallup submits a
bid price based on “x” plus “y” and “z,” where “x” is the an-
ticipated expense of the completed surveys, “y” is the expense
of Gallup’s various overhead items, and “z” is the profit figure
that Gallup would include in its bid price. I return to the sub-
ject of Tracy Stinson’s call a bit later.
(f) Actual hours
The concept of “actual hours” is near the center of Rinehart’s
case. The new (May 1998) pay plan’s first page (as received in
this proceeding, that means RX 4 at 1) is devoted to “Actual
Hours.” The contents of that first page bear directly on the
issues here. Indeed, Rinehart reports that she kept a copy of
that first page push-pinned to the wall of her cube. (10:1954)
Now quoting that first page, I do not duplicate the larger print
or bolding of the heading or the bolding of the time and deci-
mals in the two columns (RX 4 at 1):
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1258
Actual Hours
Recording actual hours accurately is extremely important un-
der the new pay system. The new pay sheets and payroll en-
try process allow you to report your actual hours to the nearest
tenth of an hour. Previously you had to round up to the near-
est quarter which would either rob you of actual hours or cost
you on your capacity. Please keep track closely how much
time you are actually spending on the phone. If you com-
pletely lose track, have a manager run an intcheck to find out
your actual hours correctly. From now on, please report your
actual hours according to the following scale.
What to report on
Time Worked Pay Sheet
1 Hour 1
1 Hour 6 minutes 1.1
1 Hour 12 minutes 1.2
1 Hour 18 minutes 1.3
1 Hour 24 minutes 1.4
1 Hour 30 minutes 1.5
1 Hour 36 minutes 1.6
1 Hour 42 minutes 1.7
1 Hour 48 minutes 1.8
1 Hour 54 minutes 1.9
2 Hours 2
***Round to the nearest decimal if necessary. To help
your capacity, if you work one hour and fifteen minutes
then you will report 1.2. If you work one hour and forty-
five minutes you will report 1.7.
Questions? Please come and see a manager.
Under Gallup’s pay system, “actual hours” is more restric-
tive than a concept of “work hours.” The latter could include
many job-related tasks, and even include short mid-morning or
mid-afternoon rest periods or smoke breaks, and surely would
include restroom breaks. No so under Gallup’s actual hours,
for Gallup’s written description in the January 1999 ITM, deal-
ing with the “Nightly Paysheet,” reads in part (JX 23 at 24):
Actual Hours: This number is critical in determining how
long you actually worked, in order to ensure proper PPC rates.
“Actual hours” is the amount of time you actually worked on
a project, not counting smoke breaks or any other type of
break. [Nearest 6 minutes and decimals explained.] Let’s
look at an example: You begin working at 4:00 pm. You
take a break at 5:00 pm to make a phone call and have a
snack. You begin working again at 5:18 pm and work until
8:00 pm. Your “actual hours” worked would be 3 hours 42
minutes. This would be recorded as 3.7 hours.
Likewise, the old “Quota Sheet Review” (RX 45), replaced
by the “Paysheet” under the 1998 pay system (RX 4 at 2;
12:2291, Barlow), instructed that “Actual Hours” meant “Time
spent on the phone, not including breaks.” (RX 45; 12:2291)
The managers’ thumbnail test for actual hours is this: It is lim-
ited to “dialing on the phone.” 1:82-83; 15:3071, Uria-Ruiz;
11:2190–2192; 12:2304–2305, Barlow) As Uria-Ruiz explains,
when the January 1999 ITM issued, copies were given to new
interviewers but not distributed to the current interviewers be-
cause the latter already had received copies of the changes,
such as the new pay plan (RX 4), that were incorporated into
the January 1999 ITM. (15:3070, 3121–3122, 3130)
This does not mean that Gallup’s interviewers must take rest-
room breaks and smoke breaks entirely on their own time.
During the hours that interviewers are logged on to the system,
Gallup’s unwritten policy allows interviewers to add .1 hour (6
minutes) per each hour logged in order to cover a variety of
nondialing activities such as restroom and smoke breaks, seek-
ing out a supervisor for work assistance, any occasional paper-
work associated with a survey, the 2 minutes or so needed to
switch projects, for “quota fills” (a major topic discussed later),
or for similar matters. (1:42–43, 75, 83–84, Uria-Ruiz;
11:2192, 2196, 2199; 12:2283, 2339, 2342, Barlow; 13:2535–
2544, Geiger) As Geiger testified, “Everything that’s not dial-
ing goes into the .1.” (14:2776, 2867) That, of course, assigns
numerous work-related tasks to the .1 (6 minutes) per hour
grace allowance.
There is a dispute concerning whether the break policy, or
grace allowance, is really .1 per hour (6 minutes), as Gallup’s
witnesses assert (Gallup, Br. at 56; Reply at 20), or 10 minutes
per hour as the Government’s witnesses claim (General Coun-
sel, Br. at 42–43). I shall not dwell on this dispute because it
does not appear to have much relevance to Rinehart’s case in
view of the large time discrepancy that Gallup attributes to her.
Supervisor Geiger testified that she does not know how the
concept of a 10-minute break allowance got started. (13:2544;
14:2776)
The Government offered testimonial evidence (Janice
Rinehart, Sherri Lee, Glen Lambert, and Beverly Robinson)
that supervisors Geiger and Heidi Roberts, plus agent (payroll
coordinator) Mike Cota, had told employees that the break
allowance was 10 minutes per hour. Roberts gives a soft denial
for this, and evidences some difficulty with keeping the deci-
mals and minutes straight. (15:2960–2961) Geiger denies by
describing a specific event (13:2531–2532), and Cota did not
testify. Although I generally credit these Government wit-
nesses, I resolve the issue in this abbreviated fashion. First, I
suspect that the source of the dispute is a misunderstanding
about fractions and decimals (somewhat akin to Supervisor
Roberts’ problem indicated just above). However, even with
the Government’s evidence, it is not clear that Gallup had fol-
lowed a well-established practice of 10-minute breaks. Along
comes the 1998 pay plan that deals in fractions using reporting
increments of .1 hour (6 minutes). It is quite possible that some
employees, and even a supervisor or agent, mentally converted
the one-tenth of an hour to one-tenth of a hundred, or 10 min-
utes.
Or the mental mistake could have arisen from the same proc-
ess that confused Nancy Sico, a “buddy,” who reports that she
tells the new employees (quite likely just a momentary lapse at
trial) to record their time to the “nearest sixth of an hour,” or
“six minutes.” (3:483–484) That is, perhaps some employees
correctly converted the wrong standard of a “sixth of an hour”
to 10 minutes. Whether either of these is the origin of the prob-
lem or not (and I make no finding in this regard), with one ex-
ception I could find (were I to reach that portion of the evi-
GALLUP, INC. 1259
dence) that Supervisor Roberts and agent Mike Cota had told
some employees that the break allowance was 10 minutes.
The exception is Supervisor Geiger, and, in this respect, I
find that Janice Rinehart (9:1767–1768) was mistaken. In deal-
ing with numbers at trial, Geiger was impressive with her men-
tal grasp and usual precision. (13:2636; 14:2753, for example.)
At trial Geiger was known as a “math whiz.” (13:2616) All
this should be no surprise given that in college Geiger took a 4-
year minor in mathematics. (13:2636) This is not to suggest
that her arithmetic is always correct, for she did make a few
errors (for example, !3:2617, 2649, and RX 53 at June 17). But
then, no one is perfect.
Although not mentioned in the briefs as to this point, Glen
Lambert credibly describes an incident, estimated to have oc-
curred about mid-August 1999, when he overheard Supervisor
Charles Davenport correct an interviewer, who quoted Supervi-
sor Heidi Roberts as having said that breaks were 10 minutes,
by telling her that Roberts was wrong and that the allowed
break period per hour was 6 or 7 minutes. (3:554, 559) Note
that the interviewer doing the quoting did not say when Roberts
had said this. It seems likely that Roberts would have said this
before the discharges of Janice Rinehart and Sherri Lee, when
the hourly break times figured in the terminations. That is,
presumably the local management reminded its members after
those discharges that the pay system provides for break periods
of 6 minutes per hour, expressed as .1 hour, and not 10 minutes
per hour which would have to be rounded to a .2 hour, or 12
minutes.
In any event, I credit Supervisor Geiger that, at a meeting
with the Premier Team about late May 1999 [Geiger also met
with the hospital track about the same time, 13:2668], when
Janice Rinehart asked whether hourly break periods were 10
minutes, Geiger said that a period of 10 minutes was not used,
that the time was .1 hour. (13:2531–2532) Finally, the .1 hour
leeway of 6 minutes has to be “sandwiched” within the time
that the employee is on dialing time. An interviewer may not
add 6 minutes per hour to her actual hours if she never took the
breaks. (13:2536–2544; 14:2777, 2783, 2903, Geiger) Thus,
because breaks have to be taken or not claimed (13:2538), the
break policy is referred to as a “use it or lose it” approach.
(11:2109, Rinehart; 13:2543, Geiger)
As we already have seen, the singular importance of “actual
hours” is that, by determining the hourly team the interviewer is
a member of, it becomes the second major factor (of two) that
generates an interviewer’s actual pay. Because different teams
earn at different rates, their PPCs also differ. Summarizing
again, as one of the documents in evidence reflects, a PPC on
the Adventist Project W470 in June 1999 earned $2.20 if the
interviewer was on the 35-hour (or Premier) team (GCX 19 at
1, Janice Rinehart); $1.80 for member of the 25-hour team
(GCX 19 at 6, Catherine Wagley), and $1.66 for those on the
15-hour team (GCX 19 at 4, Joy Jones). Using those numbers,
we see that, assuming the same numbers elsewhere, an inter-
viewer earning at the rate of $2.20 per PPC would take an
18.18 percent pay cut if he or she were bumped to the 25-hour
team.
(g) Quotas, trackers, and credibility
Turn back now to the concept of quotas. Under the new
(May 1998) pay plan (RX 4 at 2), the “Quota rate” is the new
PPC. From that one would think that the old “quota” would
now be the “completes” expected (at least informally) per “ac-
tual hour” of work. And informally that is so. (11:2180, Bar-
low) However, the pay plan (RX 4 at 2) provides that the “Ac-
tual quota” (ostensibly the old “quota”) now has the name,
“production hours.” That term is defined, generally, as “A
measurement of the actual amount of work you produce. The
total dollar amount earned on a project divided by Team Base =
Production Hours.” (RX 4 at 3) By that definition (and by an
example accompanying the definition), we see that the defini-
tion of the term is a formula that, in effect, states the number of
“actual hours” as a number that the number of completes bears
to the number of the expected completes (the old quotas) per
hour for that study.
As an example of this, consider the date of Wednesday, June
16, 1999. For that date Janice Rinehart submitted a nightly
paysheet reflecting that she had worked 12 “actual hours” on
Adventist W470, with 59 completes at $2.20 for pay of $129.80
and 11.8 production hours. (GCX 16 at 3) With the expected
completes (quotas) being five surveys per hour for that project
(1:90–91, Uria-Ruiz; 11:2052, Rinehart; 15:3115, Uria-Ruiz),
the arithmetic shows that Rinehart needed a total of 60 com-
pletes to be at full (100 percent) “quota,” to use the old termi-
nology (and as the witnesses still do28). To see the relationship
in the ratios of the completes and the hours, let us divide 59 by
60. That yields the number 98.33333. Multiplying that number
by the actual hours claimed of 12, and we reach the 11.8 figure
for production hours as shown on the document.
The relevance here of production (particularly as to the num-
ber of completes reached) is that it has some bearing on credi-
bility. As already seen, Rinehart’s discharge is based on the
allegation that she falsified her hours. But Rinehart asserts that,
before the Union, hours were never an issue, and that it was
production (making quota) that Gallup had always stressed.
(11:1968, 1982) Doubtlessly that was Rinehart’s perception,
but even the General Counsel does not go that far and, instead,
asserts (Brief at 44) that Gallup placed the “heaviest emphasis”
on “production hours” or making quota.
Certainly there is much support in the record for the view
that Gallup placed heavy emphasis on reaching and exceeding
quota (getting as many PPCs as possible). This corporate atti-
tude is reflected in Supervisor Geiger’s remarks about a meet-
ing that she held, about late May 1999, with, as she vaguely
recalls, her Premier Team members. In Geiger’s words, the
Premier Team “typically” consists of “the top producers of the
location.” (13:2531) [As Geiger held a meeting with her hos-
pital “trackers,” including Janice Rinehart, about that same time
(13:2668), it is possible that the late May meeting Geiger de-
scribes was with the hospital trackers. The point, however, is
Geiger’s description of the excellence of the members of the
Premier Team.] Notice, however, that in the same breath as her
phrase about the “top producers,” Geiger also defines the Pre-

28 For example, Supervisor Uria-Ruiz (1:114; 15:3115–3117); Su-
pervisor Geiger (13:2546, 2548; 14:2870); and the ITM (JX 23 at 27).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1260
mier Team as “a select group of interviewers who work at least
40 hours a week . . .,” thereby placing equal emphasis on the
(actual) hours worked as on the amount of production.
(13:2531)
“Trackers” refer to interviewers who, as Supervisor Barlow
describes, also are “top interviewers.” (11:2182) As suggested
by the term, “trackers” are interviewers who work of a client’s
project that “tracks” opinion, for example, over a period of
time, as contrasted with a project that is short term. (1:76–77,
Uria-Ruiz; 2:378–379, Trovato; 11:2182, Barlow; JX 23 at 24,
third explanatory box at top.)
Under most any definition applied by Gallup (whether Pre-
mier Team, trackers, or something else), Janice Rinehart was a
“top producer.” Hark back to the General Counsel’s argument
that quality (the high scores on Rinehart’s evaluations) is rele-
vant notwithstanding that Rinehart was fired for falsifying her
hours because the work ethic needed to achieve such excellence
is inconsistent with the execution of a plan to cheat Rinehart’s
employer. The same theory seemingly would apply to
Rinehart’s work ethic in maintaining a standard of excellence
for production (for making the quota of completed surveys per
hour). The relevance may not be direct and compelling, but it
does appear to have at least some significance.
c. Quota fills
Within the term “quota fills,” the first element, the word
“quota,” refers to a “targeted sample” of responses that are to
be harvested from, normally, a given section (could be geo-
graphical, such as by telephone number prefix, or by type of
survey participant, or some other targeted group). Once the
number of completes (completed surveys) set as the sample for
a particular section of the overall study has been obtained, the
“quota” or sample for that section has been reached and there is
no point in making further calls to that section or area of the
project. This status of sample reached, or “filled,” is called
“quota filled.” The computers are programmed to announce
“Quota filled” and to keep searching for a good number to dial.
(1:78–81, Uria-Ruiz; 6:1010–1011, Zieler; 10:1818, 1824–
1826, Selix; 11:2197–2198, Barlow; 13:2601; 14:2897, Geiger)
When the “Quota filled” notices begin appearing repeatedly,
interviewers need to ask a supervisor to “hide” the numbers (in
the computer system) so that the computer will disregard them
and the interviewers can then begin on a new section whose
sample is open for dialing. (1:81–82, Uria-Ruiz; 10:1826,
Selix; 11:2198–2201, Barlow) Unfortunately, a supervisor is
not always handy so that very little time will be lost. Indeed, an
interviewer can lose 15 to 30 minutes seeking out a supervisor
and getting the quota-filled section “hidden” so that the inter-
viewer (or her computer) can make calls in a good section.
(10:1921–1928; 11:2047, 2107–2109, Rinehart) Although John
Selix (the “Father of the Intcheck”) suggests that the inter-
viewer loses no time because numbers pass in an electronic
“flash” (10:1825–1826), interviewers such as Lynne Zieler
(6:1010) and Janice Rinehart (10:1920–1921 for example, de-
scribe how the “quota-filled” notices do not simply “flash by,”
but stay on the screen 30 to 45 seconds or so while they write
down the identifying data to give to a supervisor when asking
him or her to hid the numbers. Thus, Zieler would compile lists
reaching about 80 numbers or more to be hidden, 6:1010–
1012). To the extent there is some flashing, the interviewers
still get a bunch that required time to process. (11:2010–2011,
Rinehart)
Management witnesses assert that any time an interviewer
spends watching the computer screen waiting for a good num-
ber as, for example, “quota-filled” announcements scroll by, or
who write down the numbers that are listed on the screen, or
who take such numbers to a Supervisor to be hidden, may not
include such time in their paysheet column for “actual hours.”
(11:2199; 12:2283, 2339, Barlow) And according to Supervi-
sor Barlow, whenever an interviewer experiences “quota-filled”
notices, he or she needs to maintain a log reflecting the time
spent logging the numbers and, presumably, looking for a Su-
pervisor to hide the numbers, and to subtract the total of such
time from the total for actual hours worked that shift.
(12:2340–2342) Geiger testified that short times spent watch-
ing quota fills, such as for 2 to 3 minutes, are not to be de-
ducted because such gaps are covered under the general .1 hour
grace allowance per hour. (14:2899–2900) Time lost in excess
of the grace allowance of .1 hour per hour would need to be
deducted from actual hours. (14:2900, Geiger)
d. Janice Rinehart’s recording practice
From the time that she began working for Gallup as a tele-
phone interviewer (in September 1996), Rinehart testified
(10:1915, 1955; 11:1981), she recorded her time the same way.
In this respect, she counted as working time (that is, as “actual
hours”) all restroom breaks, smoke breaks, and all other short
breaks of 10 to 15 minutes or so, including such short trips to
the downstairs deli to get a sandwich to eat at her cubicle, and
all time she was at her computer working for Gallup perform-
ing such work as waiting for quota-filled numbers to pass and
for good numbers to “drop” onto the computer screen, any time
contacting or looking for a supervisor to hide the quota-filled
numbers, any time spent editing an occasional survey form, and
any other similar work performed for Gallup. She did not
count, as time worked, her 30-minute or so lunch breaks down-
stairs, or any similar or longer breaks for shopping trips to
nearby stores. (10:1916–1918; 11:1969, 1981–1983, 2002–
2004, 2075–2076, 2079, 2106–2107) Rinehart assertedly fig-
ured her time honestly and to the best of her ability. (11:1975,
1982) Before her discharge, Rinehart was never told that she
was recording her actual hours erroneously (11:1974), nor was
she ever told that actual hours did not properly include time
devoted to quota fills (10:1919, 1930; 11:1969).
Notice that Gallup’s pay-plan description of “Actual Hours”
does not mention quota fills (RX 4 at 1), although it does pro-
vide, as Supervisor Geiger observes (13:2667), that interview-
ers are to track closely the time that they “are actually spending
on the phone.” Rinehart testified that she did not understand
this to mean that time on the telephone was the only item of
time worked to be included under the term “actual hours.”
(10:1953–1954) The pay plan (RX 4 at 1) instructs interview-
ers to record their “actual hours” to the nearest tenth of an hour,
as Supervisor Geiger also observes. (13:2530) Recall that
Rinehart (10:1954) had push-pinned a copy of that that docu-
ment (page 1 or RX 4) to the wall of her cube. However, to the
GALLUP, INC. 1261
extent that there was any question that actual hours did not
include breaks of all kinds, that issue was resolved by the re-
vised ITM that issued in January 1999 with the language,
quoted earlier, that time spent on smoke breaks or any other
kind of break is not to be recorded in the paysheet column for
“actual hours.” (JX 23 at 24) Although, as Supervisor Uria-
Ruiz testified, and as described earlier, copies of the revised
manuals were not distributed to current employees (such as
Rinehart), current employees had already received the changes
as passouts. Indeed, recall that Rinehart testified that is the
manner in which she received a copy of the pay plan.
(10:1954) If she did not read such passout, she may have hurt
herself by that failure. Clearly she would be charged with
knowledge of the passout’s contents.
Aside from breaks, what about items of actual work, such as
looking for good numbers to drop onto the computer screen, or
seeking out a supervisor to have him or her “hide” the quota-
filled numbers. Neither the pay plan (RX 4) nor the ITM (JX
23) ever expressly informs employees that such work activities,
and any other work activities not part of dialing on the tele-
phone, are not properly part of “actual hours.” Moreover, no
memo was ever distributed to employees, or posted, so notify-
ing them. (12:2304–2305, Barlow) Although Supervisor Bar-
low told new employees, when he trained them back in 1992
and 1993, that actual hours meant only when they were dialing
on the telephone, he has never told anyone that quota fills are
not part of actual hours. (12:2283–2284, 2288, 2292)
As we have seen, interviewers can lose valuable time while
waiting for quota fill notices to pass and for the computer to
find a good number to dial. Should reasonable interviewers
interpret the pay plan’s phrase about closely tracking their time
“on the phone” as including, or excluding, such work-related
matters as handling quota-filled numbers? Is the phrase am-
biguous? As for the plan’s caution for interviewers to have an
intcheck run if they lose track of their time (RX 4 at 1),
Rinehart testified that she never lost track of her time.
(10:1954–1955) As for any familiarity with an intcheck,
Rinehart testified that the first time that she ever saw one was
during pretrial with the General Counsel. (9:1744; 10:1918)
Supervisor Geiger’s response to all this testimony about gaps
in working on the phone to take restroom or smoke breaks or
breaks to look for a supervisor to hide quota-filled numbers is
that the .1 hour grace allowance per hour provides coverage for
such matters. (14:2776, 2867) If searching for a supervisor
takes more than the allotted 6 minutes grace per dialing hour,
then the interviewer should subtract the extra time from her
actual hours. (14:2900) Actually, if quota fills are consuming
more than 2 or 3 minutes, then the interviewer should switch to
a different project. (14:2868, 2897–2898, Geiger) Geiger gave
no details or examples on the practicality of the switching that
she refers to. The more practical-sounding testimony came
from the witnesses, such as Lynne Zieler and Janice Rinehart
who describe, as reported earlier, the problem with quota fills
as being a common problem. I credit their testimony, for they
testified persuasively. With it being such a common problem,
Geiger’s testimony on this point had all the ring of a bureau-
cratic response by someone who never really got involved with
trying to solve the problem. For example, Geiger did not tell us
how practical it is to switch (and how often), or how much time
is required to switch, and whether it is to some project that
would not be a hospital track. Geiger did not testify persua-
sively in this area.
Supervisor Uria-Ruiz suggests that it would take an inter-
viewer only a minute or two to switch projects, including walk-
ing to a start-up computer to enter the required data and return-
ing to her cubicle. (1:43, 74–75, 83–84; 15:3076–3077) Uria-
Ruiz’s time estimate is unrealistic. The more persuasive ver-
sion is given by Rinehart that it takes 4 to 6 minutes to make a
switch. (11:2100–2102) With quota fills being a common
problem, especially as projects were in the last week or so of
their run, the time spent trying to solve their problems, when
deducted from actual hours, would seem to consume much of
the hourly grace period.
e. Gallup’s 5-hour grace allowance
Recall that interviewers are given a grace allowance of .1
hour per “actual hour” worked per week to cover breaks and
other time away from dialing. For someone on the 25-hour
team, therefore, he or she would have, for the 25 hours, a total
grace allowance of 2.5 hours. Except for one fact, applying the
same multiplier to the 35-hour team would result in a weekly
grace allowance of 3.5 hours (35 hours x .1 hour = 3.5 hours).
The fact exception is that the grace allowance is different for
members of the top teams.
Thus, one perk enjoyed by members of the 35-hour and Pre-
mier teams is an enhanced grace allowance of 5 hours per
week. (1:44, Uria-Ruiz; 13:2541; 14:2824–2825, 2864–2865,
Geiger) This enhanced standard of 5 hours results in an extra
1.5 hours of grace over the 3.5 hours that the these top teams
would otherwise receive. As to the members of these top
teams, discipline respecting the overreporting of hours is ap-
plied by the following standard. If their reported actual hours
exceed the correct number (as shown by an intcheck) by no
more than 5 hours, they receive only a warning. If it exceeds
the correct amount by more than 5 hours, they are terminated,
Supervisor Geiger asserts. (13:2534–2535; 14:2846, 2865–
2866)
In a pretrial affidavit given to the investigating Board agent,
Supervisor Uria-Ruiz states that, even if the discrepancy is less
than 5 hours, discharge is still an option. (1:44) In the latter
instance, presumably the discharge option is exercised when
Gallup determines that the employee falsified her time records,
and not exercised simply when an employee enters incorrect
times based on an unintended mistake. [Uria-Ruiz’s affidavit
report, normally inadmissible hearsay unless offered for admis-
sions or impeachment, became admissible evidence here be-
cause Uria-Ruiz’s confirmation at trial was elicited by the Gen-
eral Counsel who had called Uria-Ruiz as an adverse witness.]
As Janice Rinehart was a member of the Premier Team (or
the 35-hour team as is reported at a point or two in the record),
the applicable grace standard as to her is that of 5 hours per
week. At trial the General Counsel argued that Gallup’s “actual
hours” necessarily had to include any time working to resolve
quota fills. “That is working time. That is part of actual
hours.” (10:1868, 1875; 11:2093) The theory of this argument
is that quota fills, logically work being done for Gallup, are
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1262
included in the term actual hours because Gallup never specifi-
cally told its interviewers that actual hours did not include
quota fills. (10:1880) On brief, the General Counsel has aban-
doned this as an express argument. Turn now to the event at
issue.
f. Supervisor Geiger’s investigation
(1) Tracy Stinson calls
Supervisor Geiger tells us that the whole Janice Rinehart epi-
sode began when Tracy Stinson, the project administrator (in
the Nebraska office, 13:2547) for the Adventist project, appar-
ently on Wednesday, June 23 (13:2546), called Geiger and
expressed the desire to see Gallup’s profit margin increased on
the Adventist project.29 Thus, Stinson asked Geiger (who set
the quota on the Adventist project, 13:2546, Geiger) to see if
the quota on the project could be set higher and the hours
needed to complete the project lowered. As to the latter,
Stinson thought that the project was taking too many inter-
viewer hours for the number of completes being achieved.
(13:2545–2548; 14:2869, Geiger) Stated differently, Stinson
thought that the ratio of completes per interviewer hours was
too low. Following Geiger’s review of the situation, the quota
for the Adventist track was not raised. (14:2869, Geiger)
Strange. The project ended the day before, on the morning
of June 22. (11:1989, Rinehart; GCX 16 at 6) What would a
reasonably prudent manager do in Tracy Stinson’s position as
the project administrator for Adventist W470? No doubt she
would make periodic checks on the status of the project. And if
at one of several stages, such as that of 20 percent complete, 40
percent, or possibly even at 60 percent, she discovered that the
project was not making the desired profit, then she could call
Supervisor Geiger and ask her to do a study. But the day after
the project had ended? Well, yes, if the purpose was to obtain
the result of the study to use for negotiating the next contract.
But that purpose is entirely different from the asserted purpose
that Tracy Stinson reportedly expressed.
Is it reasonable to think that our reasonably prudent project
administrator would be calling for a study to squeeze out more
profit on Adventist W470 when the hearse was enroute to pick
up the body of this project and carry it to the morgue? Was
there another reason, a reason not given at trial, for Tracy
Stinson’s call? Stinson did not testify, and of course the report
of her otherwise hearsay call was offered merely to show why
Supervisor Geiger initiated her study. Even so, I am not bound
to accept as gospel that this stated purpose of the call (with its
strange timing) was what really motivated Gallup in calling
Geiger and asking her to do this study.
In this connection, recall from the earlier discussion covering
the coercion allegations that several members of the Union’s
organizing committee had been involved with distributing un-
ion flyers and some had met with Supervisor Uria-Ruiz on June
4. (Janice Rinehart was one of those who attended the June 4
meeting, but, as earlier noted, she left early.) It is probable that
higher management at Gallup began to question whether any of

29 The specific project is the one named on RX 52—“Adventist IP.”
(13:2545–2548; 14:2869–2870) It also is identified by the startup, or
study, code number, W470. (GCX 16 at 1; GCX 54 at 1)
this union activity was occurring during times that the union
supporters were claiming credit for actual hours worked. So,
did Gallup have Project Administrator Tracy Stinson call Hous-
ton to launch such a study, under the guise of needing to in-
crease profit, when the real purpose was to see whether there
was an ostensible justification for eliminating any union sup-
porter who had failed to exclude from actual hours the time
spent on union activity?
The record does not have any accounting for Janice
Rinehart’s time spent on union activities during working hours
the week of June 14 (the relevant week, as we see in a mo-
ment). Even so, if the record shows, including by supportable
inference, that Stinson’s call was so motivated, it is not neces-
sary to show whether Rinehart in fact, the week of June 14, was
active for the Union while on the premises, or that at least a
significant amount of that union time was claimed as actual
hours on her nightly payslip. I shall return to this point later.
(2) Geiger’s search and review
Following Stinson’s call, Supervisor Geiger began her study.
She first pulled up, and printed, the weekly report (RX 52) for
the week beginning Monday, June 14, the week previous to the
current one. (13:2545–2548; 14:2870) This weekly report
covers the nine trackers working “Adventist IP,” or Adventist
W470. The document shows, among other items, the number
of completes and the number of actual hours being claimed for
each day of the week. (13:2548; RX 52)
The “red flag” in this weekly report that caught Geiger’s eye
was Janice Rinehart’s claim of 12.0 actual hours on Wednes-
day, June 16. (13:2551, 2569, 2590; 14:2854, Geiger) Geiger
testified that the survey was not even “up” for 12 hours in that
it does not come “up” until 9 a.m. “and we stop calling at 8:00
p.m. our time; that’s 11 hours.” Thus, 12 actual hours would
have been “pretty unlikely.” Moreover, and as already noted,
the project was about to finish and there were not many good
numbers to dial. Finally, the 9 a.m. to 8 p.m. calling hours are
programmed into the computer. (13:2551–2553, Geiger) As to
this latter point, apparently nothing about the computer pro-
gram would prevent an interviewer from manually dialing
around any computer ending time. Of the nine Adventist
“trackers,” only Rinehart was shown on the weekly report (RX
52) as claiming (as to any day) more “actual hours” that Ad-
ventist W470 was “up.” (13:2560, Geiger; RX 52)
On cross-examination, Geiger admitted that she had stated,
in per pretrial affidavit, that the closing time was “about 7
p.m.” (14:2852–2854) The General Counsel argues (Br. at 44)
that this 1-hour discrepancy, plus the fact that the relevant
intcheck (which I reach shortly) discloses that Rinehart made
calls as late as 8:37 p.m., undercuts Geiger’s testimony about a
need to investigate respecting Rinehart’s 12 hours. Not so says
Geiger because the trackers know that they are not supposed to
call survey participants beyond 9 p.m., or 9:30 p.m. (Geiger
gives both times, 14:2854–2856), their time, and the survey
participants here were on the east coast, meaning that Eastern
Time Zone. Thus, to the extent that Janice Rinehart called past
either 8 p.m. or 8:30 p.m., Central time, then she violated
Gallup policy. 14:2854–2856) In light of the 11 hour “up”
GALLUP, INC. 1263
time for the project, the “red flag” for Geiger as to Rinehart’s
time was the claim of 12 “actual hours.” (14:2754)
I find nothing impeaching in this bit of possible discrepancy
in Geiger’s pretrial affidavit. “About” 7 p.m. is a generalized
time frame—a concept the Government uses for “about” dates
in every complaint issued by the General Counsel across the
country. The real point, as made by Geiger at trial, is that the
“red flag” that caught Geiger’s eye was the claim of 12 hours,
when the project is up for only 11 hours (even if Rinehart did
make some manual dials against Gallup policy). (14:2854)
Moreover, I find nothing here detracting from Geiger’s credi-
bility or tending to show that the stated motivation for the study
was false. In light of the substantial difference between
Rinehart’s asserted understanding of what it was appropriate
for her to claim as actual hours worked, and the opposing evi-
dence showing that none of the breaks that Rinehart claimed,
nor apparently any of the time worked on quota fills, would
qualify as actual hours, it is not surprising that Geiger would
find a substantial discrepancy in the actual hours claimed by
Janice Rinehart.
Having been attracted by the red flag as to Rinehart’s
claimed hours on June 16, Geiger then proceeded to review
Rinehart’s paysheets (GCX 16) for the week.30 [Nothing on the
other days that week, standing alone, would have prompted
Geiger to have taken a closer look. (13:2550–2554, 2569, Gei-
ger)] From there she pulled up, or printed, an intcheck (GCX
54) of Rinehart’s calls for the week (4 days) of June 14. From
these documents, supervisor Geiger then prepared, on a single
sheet of paper (RX 53), her handwritten notes for Rinehart’s 4
days that week. Geiger also included notes as to Monday, June
21 as covered by the intcheck, but that date did not figure into
the termination decision. Only the calls for the 4 days were
used for the termination. (13:2676, Geiger) Listed in five col-
umns, Geiger’s hand notes show the day date, project, claimed
hours, and actual hours—as based on Geiger’s calculations
(13:2555, 2560, 2588, 2590) from the numbers shown by the
intcheck. Supervisor Geiger’s calculations, the results of which
are reflected on RX 53, are what served as the basis for
Rinehart’s termination. (13:2676, Geiger) Supervisor Barlow
simply relied on the calculations performed by Geiger when
speaking to Rinehart at the termination meeting. (12:2278,
2280–2281, 2377–2378, Barlow)
(3) Preliminary terms and considerations
To a substantial extent, any review of the line items on the
intcheck calls for an interpretation based on the knowledge and
experience of what is involved. Thus, some of the analysis and
interpretation is objective, and some is subjective. The
intcheck involved here (GCX 54) has 26 pages, but pages 1
through most of page 19 are the ones carrying through the first
4 days of the week. In round numbers, the pages have about 50
line items each, or a rough total of about 950 line items for the
4-day week involved here. In her investigation, Supervisor

30 The parties agree that GCX 56 inadvertently duplicates GCX 16,
and that it would be preferable to cite GCX 16. (14:2872–2873) Al-
though GCX 19 at 1 duplicates GCX 16 at 3, that is not inadvertent
because GCX 19, with its pages for other interviewers, has a different
purpose.
Geiger focused only on obviously (to her) questionable items,
such as long periods for an answer machine, and for long
stretches of time, usually called gaps, in the transition from one
line number to the next (that is, in the transition from one call
to the next) in arriving at her conclusions. As addressed at trial,
39 of these line items figured either in Supervisor Geiger’s
calculations, in her testimony, or the testimony of Janice
Rinehart. (Many of the other 900 or so line items provide some
comparison figures for the 39 line items.) Because Geiger was
stricter in her analysis at trial than she was in June 1999
(13:2604, 2612, 2625–2626, 2640, 2676, Geiger; 15:3024,
Uria-Ruiz), the 39 includes more line items than Geiger disal-
lowed originally. These “adjustments” (the term used at trial),
or disallowances, are subtractions (13:2595) that Geiger made
as she analyzed Janice Rinehart’s 950 or so line items in the
intcheck (GCX 54) for Rinehart’s 4-day week of Monday
through Thursday, June 14 through 17, 1999.
After observing that there were a lot of gaps in the intcheck
(GCX 54), and not wanting to spend the time required to check
every questionable gap, she focused on the “major” gaps,
mainly those of 10 minutes or more. Secondly, Geiger took
this lenient approach because she did not want to have to termi-
nate Rinehart. First, Rinehart was a “very productive inter-
viewer.” Second, Geiger liked Rinehart personally. (13:2626–
2627, Geiger) At trial Geiger listed 32 line items for which she
made, or probably made, deductions. As to the other 7, she
asserts that she could have but did not, and as to one she was
not asked (but Rinehart was, and so it is included in the count
of 39). On many of these deductions at trial, Geiger makes a
greater deduction than she did originally because, as noted, she
originally was more lenient. (Presumably, Gallup’s approach at
trial was to show that the original analysis was lenient, a factor
militating against a finding of unlawful motivation.)
Geiger’s one-page table (RX 53) of handwritten totals re-
flecting her analysis of Rinehart’s paysheets (GCX 16) and the
intcheck (RX 54) contain just that—totals. References at trial
to Geiger’s individual deductions are based on what Geiger
estimates that she probably did in light of the totals. This is so
because the notes (calculations) that Geiger made in June 1999
on the individual line items apparently were discarded. Geiger
made them on Post-it notes and she does not know where they
are. (13:2605) Thus, Geiger’s handwritten chart of totals for
these 4 days is critical to our review, and I now reproduce the
bulk of it, the 4-day week of Monday through Thursday, June
14 through 17, 1999 (RX 53). In this reproduction, I have
modified the format somewhat, but not the substance. I have
added the fourth column (Hours Logged-on based on Geiger’s
testimony) and the last column (Geiger Allows at Trial) to
show her stricter approach at trial.
The column for hours logged is relevant because, describing
the methodology that she followed, Geiger testified that she
first calculated the number of hours (to the nearest tenth of an
hour per RX 4 at 1) that Rinehart (or one of the other trackers)
was logged onto the system each day. She then analyzed the
line items of the intcheck (GCX 54). Any deductions were
made from the total of logged-on hours, not from the hours
claimed. (13:2590–2591) Even so, the logged-on hours also
are relevant in relation to the claimed hours. Presumably Gei-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1264
ger followed the same methodology on June 23, 1999—the day
that she made her calculations. (13:2560–2561) The deduction
figures that Geiger gave at trial were more restrictive than the
ones that she applied in June 1999. (13:2604, 2625–2626,
2640, 2655–2656, 2670, 2676) Also, I have added the project
number under the project name. Finally, I show in brackets
Geiger’s mistake, admitted at trial (13:2675), respecting the
UNL study on June 17. I make no changes in the totals based
on the error because the error was not discovered before
Rinehart’s discharge. With those modifications, Geiger’s hand
chart for Janice Rinehart is as follows (RX 53):
Date Project Actual
Hours
Claimed
Hours
Logged-
on
Geiger
Allows
June ‘99
Geiger
Allows
at
Trial
June 14 Ad-
ventist
W470
11.0 11.5 7.9 7.5
UNL
R406
2.0 1.5 .9 .9
Totals 13.0 13.0 8.8 8.4
June 15 Ad-
ventist
W470
6.8 6.7 5.7 4.9
Cal
Fed
F170
.5 .7 .3 .3
Totals 7.3 7.4 6.0 5.2
June 16 Ad-
ventist
W470
12.0 11.4 7.2 6.8
UNL
R406
2.0 2.2 2.0 2.0
Totals 14.0 13.6 9.2 8.8
June 17 Ad-
ventist
W470
4.0 5.3 3.5 2.6
UNL
R406
2.0
[1.5]
1.4 1.2 .9
Totals 6.0
[5.5]
6.7 4.7 3.5
Totals
For
Week
40.3
[39.8]
40.7 28.7 25.9
The Government does not contest Supervisor Geiger’s analy-
sis of any specific line item. Instead, the General Counsel sim-
ply dismisses the relevance of Geiger’s analysis by arguing (Br.
at 41–42) that Gallup’s intcheck system simply leaves out vari-
ous work items that all of us would consider as being work for
our employer. That argument reflects Rinehart’s opinion that
the intcheck is unreliable and incomplete. (11:2030, 2033,
2058) But even if the intcheck were flawed (something dis-
puted by Gallup), that would be of no help here to Rinehart and
the General Counsel. As Gallup points out (Reply at 22), if it
was flawed it was flawed for all employees, and the Govern-
ment failed to show any disparate treatment exempting other
employees from intchecks while applying the intcheck system
to Rinehart.
As for the various work items not picked up by the intcheck,
that simply is Gallup’s system. As summarized earlier, Gallup
pays interviewers for completed surveys based on a team rate.
The various teams are determined by weekly hours. Earlier I
summarized how someone on the 35-hour team makes more per
completed survey than someone on the 25-hour or 15-hour
teams. In that respect, “actual hours” are an important compo-
nent of Gallup’s pay system. Accordingly, the General Coun-
sel’s lament about all the time that interviewers can lose be-
cause of “quota fills” may well be correct, but it is irrelevant.
The same would apply to the “editing” process even if Rinehart
had to fill out papers. Supervisor Geiger, however, credibly
testified that the Adventist track had no paperwork because
everything to be filled out was on the computer. (13:2607–
2608, 2667) To the extent that any computer editing is not
counted by the computer clock, we can all sympathize, but
again, that fact is irrelevant. Indeed, the Government should
not need to be reminded that this is not a federal Wage and
Hour case. (Even if it were, the compensation system here
might be deemed a permissible piece rate system.) Nor is this
an arbitration proceeding brought to determine what the term
“actual hours” means under some collective bargaining agree-
ment.
The same situation applies to “callbacks,” another of the
work items mentioned by the General Counsel. This term de-
scribes a process by which an interviewer, having contacted
someone, is asked to call back another time (nonspecific) or,
better yet, at a specific time. If the telephone number already
has been called several times, it will be culled from the list of
eligibles when it reaches its planned limit of attempts—its “call
design.” (JX 23 at 57) To avoid losing a potential complete to
the “call design” computer file, interviewers will make a hand
note of the number and time to call, then manually dial the
number at the scheduled time. Only if and when the survey
participant answers will the interviewer then bring up the com-
puter screen. Thus, even though the interviewer gets no “actual
hours” credit for her off-screen work on the callback until she
brings up the screen for the survey, the interviewer considers
that a worthwhile investment on the anticipated chance that the
call will result in the monetary reward of a completed survey.
(3:494–496, 499–01, Sico) To repeat, the off-screen work is
outside Gallup’s compensation system.
While these noncredited work items are interesting, Janice
Rinehart (testifying some 10 months after her discharge) under-
standably could not remember any details of any of the specific
line items for the week of June 14, 1999. As to most of the 38
line items that Rinehart was asked about at trial, in explaining
whether the extra portion of the gap time (the time beyond, for
example, the half minute or so for the dialer to reach and dis-
connect from an answering machine), Rinehart replied that she
could have been, might have been, may have been, or possibly
was or was not handling the other work items. (11:1991–1992,
GALLUP, INC. 1265
2016, 2047, 2072, for example) Or, she “probably,” at least on
one occasion of a 71-minute gap for a “No answer” that lasted
32 seconds,31 took part of the additional gap time for some
lunch. (11:2043–2044) Rinehart agrees that a line item for an
answering machine would take no more than one minute.
(11:1991, 2021, 2046, 2074) Geiger says that 30 seconds is
acceptable (13:2604), and the times reflected on the intcheck
(GCX 54) for answering machines certainly support Geiger as
to that.
Recall Rinehart’s testimony that her short breaks of no more
than 15 minutes, even if to pick up a sandwich at the downstairs
deli to bring back to her cube, she included in her actual hours
worked. That is, for these types of breaks, as for work items
off the telephone, Rinehart left her computer on and the screen
up. (11:2077–2078) When the screen is up and a number is
left on the screen after a call of some kind, as Supervisor Gei-
ger credibly reports (13:2662–2663, 2665–2666), the clock
continues to run even if the interviewer gets up and goes
somewhere. That is, the gap that shows up on the intcheck,
instead of being the normal 4 to 5 minutes for, say, a completed
survey on Adventist W470, becomes 20 minutes, 30 minutes,
even an hour. [Geiger testified that the average time for a com-
plete on W470 was 5 minutes. (13:2594, 2611–2613) Rinehart
advises that in a “perfect world” the completes could all be
done in 4 to 5 minutes or so, but sometimes, for example, the
interviewer has to read items four or five times because the
survey participant does not understand and the interviewer must
not explain. (11:2051–2052)] Leaving the number up and the
clock running appears to be contrary to a direct instruction in
the ITM concerning a special screen to enter when the inter-
viewer leaves his or her computer. (JX 23 at 50) All this leads
to the next complaint of the General Counsel (Br. at 42), that
being that the intcheck fails to disclose when an interviewer has
to spend extra time on a call because, for example, the respon-
dent (survey participant) wants to chat.
(4) Supervisor Geiger’s interpretations
(a) Introduction
The 39 (my count) line items, or calls, in question here are
disputed in the sense that Janice Rinehart and Supervisor Gei-
ger, considered together, were asked about all of them at trial.
(Recall that one line item was skipped in questioning Rinehart,
and a separate item was skipped as to Geiger.) The actual
number of calls for which, at trial, Geiger “adjusted” is 32.
And as implied earlier, no one is sure whether all these 32 were
the subject of adjustments on June 23, 1999 when Geiger pre-
pared her page (RX 53) of calculation totals (13:2560–2561),
although it appears that approximately all of them received,
overall, a slightly smaller subtraction in June 1999 than Geiger
applied at trial in explaining what she would deduct were she
doing so as of the trial.
In Geiger’s experience, chatty respondents who actually
cause an extra long survey are “few and far between.”
(13:2611–2613) Indeed, when we inspect the intcheck it is
clear that for most of the “adjusted” calls (the ones for which
Geiger disallowed the extra time), there are at least several

31 GCX 54 at 11 line 56. (By my count, this is disputed call 21.)
more of the same category right there on the intcheck that fit
the pattern of time described by Supervisor Geiger. Consider,
for example, those calls that reached answering machines. Of
the items causing Rinehart the biggest headaches here, answer-
ing machines top the list. More specifically, it is the extra time
beyond the short period that it takes the computer to connect
with and disconnect from an answering machine. (In the trial
version of her adjustments, Geiger would deduct 4.0 hours for
that category alone.) A completed survey that takes extra time
perhaps leaves some room for debate, particularly if there were
only one or two on a week’s intcheck. But anything over 1
minute on an answering machine requires no analysis or inter-
pretation. That is, the person left the number on the screen and
did something else for the rest of that time gap. The extra time
is what needs to be explained.
The 39 line items, or calls, that are in question begin with, as
number 1, GCX 54 at 1 line 20 (11 minutes for an answering
machine) and end with, as number 39, GCX 54 at 19 line 90
(another 11-minute call to an answering machine). The last
call, by the way, sums up much of the Government’s entire case
as to Rinehart. Consider Rinehart’s testimonial explanation, on
cross examination, of whether the remaining 10 minutes of the
“call” (that is, the remaining 10 minutes of the time that the
screen was “up”) was treated by Rinehart as “actual time
worked” (a better phrasing would be “actual hours” worked),
Rinehart replies yes. Thus (11:2077):
A. I would say yes to that because that’s when I — it
looks like I was through for the day and I was totaling my
time sheet. We had to total it every night, get our totals
and take it to a supervisor and have them initial on the pay
sheet to turn it in. [Per the ITM, JX 23 at 23, “Pay
sheets.”] So yes, I would consider that work time.
BY MR. SHULTZ: And would you leave your screen on
while you did that?
A. Yes.
Q. Why?
A. Because I was still at work. I was still working. I
was getting paperwork taken care of for the day, maybe
turning in—since I hadn’t worked Adventist that day
[Rinehart is confused here, for her first 4 hours that June
17 were on Adventist W470; GCX 16 at 4; GCX 54 at 16
to 18], I may also have been turning in my patient forms
that I had filled out for the day. That was still work time
as far as I’m concerned.
Respecting the patient forms, Supervisor Geiger credibly ex-
plains that on the Adventist project there was no paperwork
because all forms were filled out while the interviewer was
doing the survey on the computer. (13:2605–2607, 2667)
Even as to the editing process (that is, correcting spelling and
typographical errors, not substance), that too is done on the
computer, as part of actual hours worked, before going to the
next call. A specific computer procedure, “Edit mode,” is de-
scribed in the ITM for this (JX 23 at 86-87 and 50). The edit
mode procedure apparently is what Rinehart, at one point
(11:2023), attempted to explain at trial. Thus, there would be
no hard-copy patient forms for Adventist. Although UNL
R406 (access code 9563), the second project that Rinehart
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1266
worked on that June 17, for 1.5 hours and a single complete
(GCX 16 at 4), is not well described in the record, it appears
that such project was for some organization or league sponsor-
ing a study named “Entrepreneurship Youth Study.” (1:162–
163, Uria-Ruiz) It seems highly unlikely that such a study had
anything to do with patient forms.
In fact, Rinehart was never specific about the “patient
forms,” and I find that she mentioned them generically as a
throwback to earlier months and other studies when she and the
other interviewers actually did fill out such paperwork. Indeed,
Rinehart probably is referring to the old “Patient Trax Fax”
forms (RX 47). But by May 1999 that form was on the com-
puter for all hospital tracks except Beth Israel. (12:2439, Cof-
fey; 15:3074, Uria-Ruiz) Supervisor Geiger’s reference to the
form as a paper form on “some surveys” (14:2878–2880) does
not conflict with the testimony of Coffey and Geiger. Thus,
reinforcing Geiger, Supervisor Uria-Ruiz testified that the Trax
Fax is filled out while the survey participant is on the tele-
phone. (15:3077–3078) And indeed, Rinehart herself admits
that in late May 1999 she found the form on her computer, and
it was “prior to that” when she filled out the forms by hand and
“I counted it all as work time.” (10:1917)
Returning to Rinehart’s answer, quoted above, Rinehart goes
on to state that she left her screen up whenever she engaged in
something that (she considered) was work time. (11:2077) At
that point she adds that the interviewers never turned off their
computers unless they switched projects. (11:2077–2078 and
1983) Asked to focus specifically on the screen, Rinehart re-
plied (11:2078), “I didn’t have any control over that. The dialer
did that. The dialer does that.” But the interviewers do have
control over the screen, and in the ITM Gallup instructs its
interviewers to follow a specific procedure for notating, on the
screen, their departure for such matters as restroom breaks if
they leave their computers. (JX 23 at 50, “Leaving Your Com-
puter”) Yet when Rinehart took any kind of break, even the
long lunch breaks that she assertedly did not claim as actual
hours, she left her computer screen on because “We’re not re-
quired to turn them off. You left them up.” (11:1983) Well,
“up” perhaps, but also Rinehart apparently never made the
qualifying entry on the computer screen as instructed in the
ITM about “Leaving Your Computer.” Geiger describes the
procedure very well at trial, and explains that, although the
entries would prevent the clock from running on the telephone
number, the time would be shown for the break so that the in-
terviewer could know how much time to deduct from the actual
hours that she claimed at the end of the day. (14:2784–2789)
Supervisor Uria-Ruiz gives similar testimony. (15:3071–3073)
Rinehart was an experienced interviewer. In the words of
Supervisor Geiger, Rinehart was a “veteran” interviewer.
(14:2627) It is difficult to understand how Rinehart could be
unaware of this procedural requirement that is clearly stated.
For that matter, the instruction in the ITM (JX 23 at 24), on
how to fill out the nightly paysheet, also is very clear that
breaks of any kind are not to be counted in the number of “ac-
tual hours.” As I already have discussed, Gallup’s new (1998)
pay plan (RX 4) fails to make clear—as Supervisors Barlow
and Geiger do clearly explain (as I summarized earlier)—that
“actual hours” means only “dialing time,” that is, time on the
telephone.
It may be understandable that Rinehart and others possibly
could have been confused as to whether such work tasks as
those associated with quota fills were or were not properly
counted as part of actual hours. Even so, it is puzzling as to
how the Government can argue that such work items (some,
such as waiting for a number, while sitting at the computer, and
others while off the computer), count as actual hours, particu-
larly when there is no evidence that Gallup ever has knowingly
counted them. Actually, the General Counsel reduces the Gov-
ernment’s position, on brief (Br. at 41–42), only to an implicit
argument that such tasks are part of “actual hours.” At trial, the
General Counsel’s stated position was that work associated
with quota fills is part of “actual hours,” or that at least it is
Gallup’s burden to show that it clearly explained to the em-
ployees that such work was not part of actual hours. (10:1863,
1875, 1880–1882; 11:2093) The General Counsel seems to be
arguing an arbitration or Wage-Hour case in the wrong forum.
Before turning to some sample line items that illustrate Gei-
ger’s adjustments, consider first the format of the intcheck here
(GCX 54) for Janice Rinehart’s calls the 4-day week of June
14, 1999. The 19 pages have nine columns. The first column
starts a numerical sequence for the calls placed on a specified
project. The second is Rinehart’s identification number
(9:1744), and the project (or study) code [the start-up code,
actually] fills the third column. Next comes the date and then
the ending time of the call. From the ending time of the call on
the previous line to the ending time of the call on this line con-
stitutes a time gap (the gross gap in my terminology). In the
sixth column appears the seconds showing the time that the
telephone number was on the computer screen. (13:2662–
2664, Geiger)
Similarly, as John Selix explains (10:1811–1812) concerning
the LL12 master computer log (GCX 55; 10:1795) from which
intchecks are derived (10:1887–1888), the seconds reflected
simply show the time that the number is, in effect, on the com-
puter screen. Stated differently, the seconds shown are not
necessarily equivalent to the duration of the telephone connec-
tion, and we will see that from testimony given by Dyanne
Compagna, the telephone specialist32 from MCI WorldCom.
Indeed, recall Supervisor Geiger’s testimony that if an inter-
viewer rises and leaves her cube with the screen up and number
showing on the screen, the clock will continue to run accumu-
lating seconds of time. (13:2662–2663) Also, the gross gap
(reflecting minutes) may be substantially greater than the num-
ber of seconds. When this happens, it means that the time dif-
ference between the gross gap and the segment reflected by the
seconds was a period in which no numbers were shown on the
computer screen. (13:2654, 2663, Geiger)
Although no witness explains the significance of Geiger’s
testimony on that point, presumably that period of no screen
activity would occur when there are some of the asserted quota-
filled numbers that flash by, and perhaps when numbers are
“running out” and difficult to obtain. In any event, the record
indicates that this period of a blank computer screen could oc-

32 “Network Integrity Systems Specialist,” to be precise. (12:2347)
GALLUP, INC. 1267
cur while the interviewer is sitting there waiting for a number
“to drop,” as the witnesses phrase it.
Return now to the columns of the intcheck. Column seven is
the telephone number dialed (with “D” indicating that it was
dialed by the autodialer, 11:1996). The eighth column is for the
code number assigned to reflect, numerically, the result of the
call. A list of such code numbers is in evidence. (JX 31;
9:1775–1776) The last column classifies, in text, the result of
the call.
(b) Sample deductions
The Government does not attack (or even analyze) any spe-
cific deduction that Supervisor Geiger made. Instead the Gen-
eral Counsel erroneously (although now merely implicitly)
makes the irrelevant argument that Gallup’s intcheck system
excludes various work items. (This contention is irrelevant
because Gallup does not include such items within its definition
of “actual hours” worked. That term includes only “dialing
time,” or time on the telephone.) I shall describe a few exam-
ples of the deductions made by Supervisor Geiger. Notwith-
standing the Government’s position of no attack, I have exam-
ined all 39 questioned line items, and I have compared their
patterns to the patterns of the other calls in the same categories
reflected in the intcheck (GCX 54) for that week. I have done
so as part of the process of considering the credibility of both
Janice Rinehart and Supervisor Geiger. Before reviewing some
sample deductions that Geiger made for that week, consider
first the day that caught Geiger’s eye—Wednesday, June 16,
1999.
For that Wednesday, June 16, Supervisor Geiger testified
(13:2592), Rinehart claimed 12.0 “actual hours” for Adventist
W470. (GCX 16 at 3; RX 53) (Recall that this was the “red
flag” that sparked Geiger’s more detailed review and investiga-
tion.) On reviewing the intcheck (GCX 54) for that date, Gei-
ger determined that Rinehart was logged-on for 11.4 hours.
(13:2592, 2625) After inspecting, at trial, the line items for that
date, Geiger “adjusted” the 12 hours claimed by subtracting a
total of 4.6 hours (for nine adjustments numbers 20 through 28)
from the logged-on time of 11.4 hours, thereby allowing a (cor-
rected) total of 6.8 hours. (13:2625–2626) And that does not
even include the extra .6 hour canceled when Geiger deter-
mined that the logged-on time was just 11.4 hours. Thus, the .6
hour was an immediate, and additional, loss. Of course, if an
interviewer were able to tack on the “grace” allowance at the
end of the day, then even using the lesser hours of 7.2 would
allow at .7 hour grace allowance for the day, thereby bringing
the logged-on total up and over the 12 hours claimed. As we
have seen, however, the grace allowance has to be taken within
the day (“use it or lose it”) and not tacked on at the end.
Respecting the second project for that June 16, UNL, recall
Geiger’s testimony (13:2628–2629) that she did not adjust the
claim there of 2 hours. For the day, therefore, in June 1999
Geiger presumably subtracted .6 hour right “off the bat” be-
cause of the logged-on time difference, plus, it appears, an ad-
ditional 4.2 hours in line-item deductions, for a total of 4.8
hours deducted from the 12.0 hours claimed. This left (RX 53)
an allowed total of 7.2 hours for Adventist W470. [That, plus
the 2 hours for UNL, left Rinehart an allowed total of 9.2 hours
in June 1999, rather than the 14.0 hours claimed. (RX 53)]
For Adventist W470 that Wednesday, June 16, the four big-
gest (of nine) line-item cuts are for 1.2 hours for a “No answer”
(adjustment 21), .8 hour for a “Respondent unavailable for
study” (adjustment 22), .5 hour for an “Answering machine”
(adjustment 23), and .7 hour for a “Complete” (adjustment 25),
for a total deduction of 3.2 hours just for these four line items.
I cover these four deductions in the following summary of
some sample deductions from the categories of deductions for
the week. Keep in mind that Rinehart, as a “tracker” and a
member of the Premier team, received Gallup’s 5-hour grace
allowance for such things as breaks, handling quota fills, and
tending to other non-dialing activities. Turn now to some sam-
ple deductions from the categories of line items for the week.
The 39 line-item deductions fall into 12 separate categories,
with a few of the groups having little impact here. Considering
first the most active group, that of answering machines (the
classification placed in the last column of the intcheck), I note
that it had 14 of the 39 calls. Of these 14 calls, Supervisor
Geiger did not, in June 1999, make any deduction from two 6-
minute calls (numbers 31 and 32 of the 3933) on the second
project for June 16 — UNL R406. However, Geiger adds that
she could have done so. (13:2628–2629) From the remaining
12 calls, consider the two highest gaps. First, number 3 is a 52-
minute gap, on June 14, when the seconds (the time the screen
was up—the “dialing time” count) were only 30. (GCX 54 at 1
line 51) Rinehart agrees to a 51-minute deduction (11:1995),
and at trial, and presumably on June 23, 1999, Geiger made an
.8-hour (48 minutes) deduction. (13:2634)
The second highest is a 35-minute call (my number 23) on
Wednesday, June 16, for which the screen was up 2122 sec-
onds—35.4 minutes. Rinehart testified that, for the 34 minutes
beyond the 1-minute allowance for the call, she may have been
seeking out and working with a supervisor to get quota-filled
numbers hidden, or she may have been engaged in other
(nondialing) work tasks. (11:2046–2048) Of course, no matter
what you, I, or the Government might think appropriate, such
non-dialing work activities do not qualify as “actual hours”
under Gallup’s pay system. Geiger subtracted .5 hour (30 min-
utes) at trial. Although the nearest tenth of an hour per the pay
plan (RX 4 at 1) would be .6 hour, Geiger testified that she did
not want to be “picky.” (13:2604–2605)
As mentioned, for the category of answering machines, at
trial Supervisor Geiger deducted a total of 4.0 hours for 12 of
the 14 line items. The two biggest deductions (.8 and .5 hour) I
just covered. Of the 39 contested (adjusted, corrected) calls,
the first and the last are to answering machines (calls 1 and 39).
As to those two 11-minute calls, at trial Geiger charged .2 hour
each. (13:2633, 2674) In June 1999 she may not have both-
ered with these two because each is barely over 10 minutes.
Accordingly, I shall not count these two. Other calls that were
rounded up were offset by calls when Geiger rounded down.
Indeed, Geiger credibly testified that her practice is to round up
the first time and down the next in order to seek a balance.
(14:2904–2905, 2920–2921)

33 GCX 54 at 16 lines 101 (13:2631) and 111.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
I do not count call number 6, a 9-minute call to an answering
machine on June 14 (GCX 54 at 3 line 151) for which, at trial,
Geiger made a .1 hour deduction. (13:2636–2637) Also, I do
not count call number 37, an 11-minute call (GCX 54 at 18 line
2) for which, at trial, Geiger deducted .2 hour. (13:2673) Simi-
larly, Geiger may not have counted a 10-minute call (number
38) on June 17 (GCX 54 at line 42), even though at trial
(13:2674) she deducted .1 hour. Subtracting all these limited
charges totaling .8 hour from the 4.0 hours leaves a deductions
total of 3.2 hours that, I find, Supervisor Geiger probably made
in June 1999 in preparing her totals page, RX 53.
Another category that leaves no room for controversy is that
for a “No answer.” There was one of these (call 21, mentioned
a few paragraphs earlier), and the gap lasted 71 minutes, al-
though the screen was up for only the usual time for such
calls—32 seconds. (GCX 54 at 11 line 56) Respecting the
extra 70 minutes for this line item, Rinehart concedes that, as
the call occurred close to the noon hour, she “probably” took
part of that extra time for lunch. (11:2043–2045) Observing
that Gallup does not monitor breaks or shopping trips, Geiger
suggests that Rinehart may well have spent time outside if the
weather was pleasant that day. In any event, at trial Geiger,
rounding up and over by 1 minute, deducted 1.2 hours.
(13:2599–2602) Because Geiger was being more strict at trial
than she was in June 1999, I suspect that at the original time
Geiger was a bit more lenient, applying a charge, nor of 1.2, but
of 1.1 hours. I so find.
A somewhat similar category is that for the description, “Re-
spondent is unavailable for study.” Two calls here (my num-
bers 22 and 36) are charged. (GCX 54 at 11 line 89 and at 17
line 58) The first is a 54-minute gap, 3234 seconds, on June
16; and the second is a 32-minute gap, 1910 seconds, on June
17. As to the first call, Janice Rinehart candidly reports that
she does not know what she was doing beyond the initial con-
nection time. (11:2045–2046) Supervisor Geiger tells us that
this category of call typically consumes no more than a single
minute. Even so, she subtracted only .8 hour rather than a .9.
(13:260–2603) This category of calls, Geiger explains, usually
means that the person will be away for a substantial time, such
as on vacation or out of the country, and will not be available
for the period of the study. (13:2666) I add the subtraction of
.8 hour to the total.
For the second call (number 36) of that category, for 32 min-
utes, Geiger subtracts .5 hour. (13:2665) Geiger explains that
the extra time could be that the interviewer, with the screen left
up, simply walked away from her computer. (13:2665–2666)
Rinehart testified that it is “possible” she spoke with someone
for the 32 minutes to determine availability, and if not, the rest
of the time “Possibly would be and then again it may not be”
“actual work time.” (11:2072) Rinehart’s response is not per-
suasive, even though I recognize the time disadvantage imposes
on her memory. However, I note that the intcheck reflects nine
other such calls, each being less than a minute, and the remain-
ing five lasting from 1.2 minutes to 3.1 minutes. Although
there could be an exceptional situation, nothing indicates that
such occurred here. Crediting Supervisor Geiger on this call, I
add her .5 hour subtraction to the list. The total subtractions for
this category are 1.3 hours.
The next category I reach is that for “Screen failure.” Super-
visor Geiger advises that this descriptive text means that the
former patient does not live there or that no one at the number
is qualified to participate in the survey. (13:2486, 2662) There
are four calls here (my numbers 19, 29, 30, and 33), with num-
bers 29 and 30, of 5 minutes and 25 minutes on June 16 (GCX
54 at 15 lines 41 and 70) receiving no adjustment from Geiger.
Typically, Geiger reports (13:2662), screen failures take less
than a minute. Call 19 (GCX 54 at 9 line 6) lasted for 21 min-
utes, with the seconds listed as 1278, on June 15. At trial Gei-
ger, rounding up, subtracted .4 hour. (13:2657–2658) Ram-
bling from one code to another, Rinehart’s testimony on the
point is that she is “not sure what all the coding stuff means.”
(11:2025)
An inspection of the intcheck (GCX 54) reveals that, of the
other (besides these four) 15 screen failures that week, 12 lasted
no more than 60 seconds, two more finished within 70 seconds,
and the longest one lasted for 1.9 minutes. The average length
of these additional 15 calls is .9 minute. I generally credit Su-
pervisor Geiger here.
Geiger calculated Rinehart’s logged-on time as 41 minutes,
or .7 hour. (13:2657) Oddly, Rinehart claimed only .5 hour.
(GCX 16 at 2; RX 53) Subtracting Geiger’s deduction of .4
hour from the .7 logged-on time (and not from the .5 hour
claimed), Geiger arrived at the .3 hour that she allowed on her
calculation page (RX 53) in June 1999 as well as at trial for Cal
Fed F170. (13:2658) Accordingly, I count the .4 hour here as
one of the sample deductions.
The other screen failure (questioned call number 33), on
June 17, had a 70-minute gap and the screen was up for only
216 seconds, or 2.3 minutes rounded to the nearest tenth of an
hour. (GCX 54 at 16 line 5) That means that, for over 67 min-
utes that the screen was up that June 17 there was no number or
numbers on the screen. (13:2654, 2663) Was Rinehart waiting
for a number to drop, or had she simply left her cube without
properly switching to the “break” screen (per JX 23 at 50)?
Rinehart concedes that she would not think that all of the extra
time (beyond whatever time it took to handle the call) was de-
voted to actual work time. (11:2066–2067) At trial Supervisor
Geiger subtracted 1.1 hours, or 66 minutes, leaving 4 minutes
for the call. Such 4 minutes exceeds the time that the number
was on the screen. (13:2661, 2664) Overall, I find that Super-
visor Geiger’s two deductions for screen failures, totaling 1.5
hours, appear to be reasonable subtractions.
Adding the foregoing four category totals yields a grand total
of 7.7 hours of deductions that Supervisor Geiger probably
made originally. Recall Geiger’s testimony that anything over
5 hours meant discharge. (13:2535; 14:2846, 2865–2866)
Some testimony about the June 1999 totals tends to be a bit
confusing. This concerns whether the totals that Supervisor
Geiger allowed in her June 1999 calculations (RX 53) include
the allowance for breaktime. Thus, Geiger testified that the
total actual hours allowed of 28.7 do include the allowance for
breaks. (14:2846–2847) I find that to be true only in the sense
that Geiger, as she testified at several points, tended to be lib-
eral, or lenient, at trial, and usually subtracting less than she
could have. (13:2655–2656, for example.) In that sense, her
June 1999 total of 28.7 actual hours (RX 53), as I have stated,
GALLUP, INC. 1269
is somewhat greater than (2.8 hours greater than) Geiger’s total
of 25.9 actual hours as computed at trial when she was being
stricter than she was in June 1999.
Under her proper methodology, Geiger would calculate the
logged-on time, then go back through the intcheck and strip out
all the breaks, leaving just the dialing time (the pure “actual
hours”). (13:2536, 2590–2592; 14:2825 as to Sherri Lee)
More specifically, as we see from all the calculations, reaching
just the dialing time means examining the “screen up” time (as
shown by the line item figure for seconds), then analyzing the
gap, and “adjusting” that gap so as to eliminate (when appro-
priate in the supervisor’s opinion) some or most of the gap, and
converting the seconds (when appropriate in the opinion of the
supervisor) to whatever number is consistent with (in the su-
pervisor’s opinion) the average time required to make that cate-
gory of call. As we have seen, that is the process followed in
stripping out “all the breaks.”
Once all the breaks have been subtracted, the supervisor
(Stephanie Geiger, here) then adds the grace allowance—5
hours for trackers such as Janice Rinehart. (In theory, the
claimed actual hours should match the actual hours as deter-
mined by the supervisor’s review of the intcheck.) If the
claimed hours exceed the actual hours shown on the intcheck,
yet fall within the grace allowance of 5 hours, the interviewer
may be disciplined, generally a warning. If the claimed hours
exceed the 5 hours, the asserted penalty is termination.
At a couple of points during her cross examination, Supervi-
sor Geiger’s testimony appears either garbled or inconsistent
with the foregoing. Thus, after answering a question consistent
with the foregoing, she then answers yes to the question, “So
before adding in break time they would be afforded a five-hour
leeway.” (14:2865) The question is confusing, and I think that
Geiger misunderstood it. After all, Geiger had just testified,
“The five-hour leeway period is to represent the break time that
they get during the week.” (14:2865) In short, there is not
some extra breaktime added to the 5-hour grace allowance.
Beyond the grace allowance, Gallup does not pay (in the sense
of qualifying for the higher-paid teams) for breaks.
On the next page of the transcript (14:2866) another ques-
tion, this time by me, is confusing. Again, the question and the
affirmative answer suggest that the 5-hour grace period can be
added on top of a week that already contains break periods.
Geiger probably meant her affirmative answer in relation to
what she had allowed for Janice Rinehart in June 1999, and I so
find.
Turn back now to the categories. The four I have described
above produced, as noted, a total of 7.7 hours that, I find, Su-
pervisor Geiger reasonably would have deducted in June 1999
from the 40.7 logged-on hours, resulting in total actual hours
allowed of 33. Now adding the 5-hour grace allowance returns
the total allowed hours to 38.0—unfortunately, 2.3 hours shy of
the 40.3 claimed hours. Stated differently, Rinehart’s claimed
actual hours exceeded the allowed actual hours plus the 5-hour
grace allowance by 2.3 hours for the week. Under Gallup’s
system, Janice Rinehart would be subject to termination be-
cause her claimed actual hours exceeded the 5-hour grace al-
lowance (and did so by 2.3 hours).
Although, at this point, I need not consider any additional
categories in light of the foregoing, a quick summary of another
category or two that contains big gaps may be useful. The
category for “Complete” has a 52-minute gap of 3112 seconds
for Adventist W470 on June 16. (Questioned call 25; GCX 54
at 13 line 182) As summarized earlier, the length of time
needed to complete a survey on Adventist W470 is a matter of
debate between Supervisor Geiger and Janice Rinehart. As
mentioned there, Geiger puts the average time at 5 minutes.
Rinehart would agree if the calls were made in a “perfect
world.” Both witnesses have good arguments. For comparison
of times, the intcheck in question (GCX 54) has many com-
pletes for that week—183 to be exact. (GCX 16 at 1–4 and
11:2072–2073; GCX 54 at 1–19) The first 100 completes on
the intcheck (carrying through the first 2 days, June 14 and 15)
consumed 489.1 minutes for an average time (rounded to the
nearest .1 minute) of 4.9 minutes—squarely within the time
frame described by Supervisor Geiger.34 A visual check of the
next 48 completes (leading up to questioned call 25, Rinehart’s
49th complete for the day and complete number 149 for the
week) indicates an even lesser time with nearly all being 3 to 6-
minute calls.
Respecting this questioned, or contested, call 25 of 52 min-
utes, Supervisor Geiger deducted .7 hour (42 minutes) from the
logged-on time, thereby allowing 10 minutes for the call, or
“twice the average time of the survey.” (13:2611, Geiger)
Asked (on cross examination) whether this completed survey
required 52 minutes, Janice Rinehart replied (11:2049), “It’s a
good possibility.” To the question whether the balance of the
time, assuming the actual call took just 5 minutes, would have
been actual work time, Rinehart answered “No,” but added, in a
meandering fashion, that she could have taken 10 minutes or so
to have filled out a patient “track form.” (11:2050) Presuma-
bly Rinehart was referring to a Patient Trax Fax (RX 47), or
PTF, described earlier, that (except for the hospital Beth Israel)
has been on the computer for the hospital tracks since May
1999. And (also noted earlier) as Supervisor Uria-Ruiz testi-
fied (15:3077–3078), PTFs are completed while the survey
respondent is on the telephone. Rinehart later essentially reaf-
firms her testimony. (11:2084) Of course, Rinehart appears to
be saying that beyond that 15 minutes (a possible 5-minute call
and 10 minutes on a form) she would not have been engaging
in actual work time.
Now it so happens that Gallup requires (11:2079, Rinehart)
the interviewers to record, on the back of their payslips, the
time duration and the “case ID number” for each of their com-
pleted surveys. [For the trial exhibits, the documents were
copied in a manner to reproduce these hand notes by Rinehart
at the bottom of the face of the payslips.] The computer dis-
plays this information during a short period of time after the
call is disconnected so that the interviewers can copy the data.
The case ID numbers are displayed in a numerical sequence.

34 The twelfth complete, questioned call 2 (GCX 54 at 1 line 42), is
part of a 17-minute gap, but the screen was up only 202 seconds. Su-
pervisor Geiger gave Rinehart a pass on the gap. (13:2633–2634) I
count this call of 202 seconds as part of the first 100.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1270
(9:1781–1783; 11:2080–2082, Rinehart; 13:2618–2623, Gei-
ger; 15:3078, Uria-Ruiz)
Taking the foregoing information about the hand notes and
reviewing Janice Rinehart’s paysheet for Wednesday, June 16,
1999 (GCX 16 at 3), and the intcheck (GCX 54 at 13 line 182),
we see that the 52-minute call (contested call 25) corresponds
to Rinehart’s hand note, “4.3–1840.” Rinehart’s hand note
means that the call, being complete number 49 for the day [and
number 149 for the week], was displayed on the computer
screen, and copied by Rinehart in her own hand, as lasting 4.3
minutes and as having been assigned case ID number 1840.
(11:2084, Rinehart; 15:3082–3085, Uria-Ruiz—respecting
counting backwards to reach a given line.) In short, by her own
hand on that June 16, Rinehart recorded the duration of the call
as 4.3 minutes. Gallup’s position is that the numbers Rinehart
wrote by her own hand trap her in her own discrepancy. (Br. at
72) The discrepancy, of course, is that the computer clock kept
ticking until the total time for the “screen-up” situation reached
52 minutes. In short, for some reason, Janice Rinehart left the
screen up after she completed the 4.3-minute call.
There is more. Recall my earlier mention that we would
learn from the MCI representative, Dyanne Compagna, about
the real duration of the telephone time. For this so-called 52-
minute call to this specific telephone number of contested call
25, MCI’s records show a different story. Looking now at the
specific MCI record (RX 62 at 2, third line from the top), we
see that the call that ended at 6:23 p.m. (“18:23”) on line 182 of
the intcheck (GCX 54 at 13), and which on Gallup’s computer
had a “screen up” gap of 3112 seconds (51.9 minutes), is shown
on MCI’s record, for the same telephone number called,35 a
dialing and ringing time of 15 seconds followed by an “off
hook” (from answer to end of conversation or answering ma-
chine message) duration of 4 minutes 24 seconds (4.4 minutes),
ending at 35 seconds after 6:23 p.m. (15:2992, Compagna)
Although the General Counsel is correct in stating (Brief at 45)
that Gallup did not have or rely on the MCI records as of the
discharge (15:3126-3128), Gallup is also correct (Reply at 21)
in suggesting that they are relevant because they aid in showing
the reasonableness of Supervisor Geiger’s analysis of the time
records and in her conclusion that Janice Rinehart falsified her
time records. In that respect, the MCI records bear on credibil-
ity. Thus, they serve a dual purpose while assisting in the deci-
sion process.
Note that the 47-minute remainder of this 52-minute “call”
occurred at the front end of the 52-minute gap. This is shown
by the fact that the previous call ended with a busy signal at
5:31 p.m. (GCX 54 at 13 line 181), and the call after contested
call 25 was a 32-second “No answer” ending at 6:24 p.m. (line
183). This would mean that Rinehart was not completing any
form on the computer, for the screens for the previous calls
were gone, and the next call (the one in issue) was not yet
made. The remaining possibilities appear to be that Rinehart,
during this 47 minutes, either was working on quota fills, wait-

35 Although MCI’s record (RX 62) does not show from which exten-
sion at Gallup the call was placed (15:2997), that fact is immaterial in
view of the showing that the telephone numbers and ending times
match on both Rinehart’s intcheck and the MCI record.
ing for a number “to drop,” or possibly stymied by numbers
“running out.” That week, Supervisor Geiger testified, she and
the trackers were scrambling trying to get more numbers to dial
on Adventist W470. The project was simply running out of
numbers. (13:2551, 2553, Geiger)
Although Geiger does not address the possibility of numbers
running out as to this contested call 25, her general description
of the problem indicates that such a problem did not afflict this
47-minute period. Thus, in describing her efforts to overcome
that problem, she reports that the interviewer would “log back
on,” and “change the minutes,” and “dial through the sample
again and again.” (13:2553) Indeed, the interviewers are to
switch to a different project, especially if a supervisor cannot be
found right away. (13:2601–2602, Geiger) Steps such as those
surely would leave a computer trail on the intcheck, and there
are no such interruptions on the dialing sequence already de-
scribed for Rinehart’s intcheck (GCX 54 at 13) That seems to
leave two possibilities. One, Rinehart possibly was seeking out
a supervisor to hide quota-filled numbers. Two, Rinehart sim-
ply took a 47-minute break. Respecting the first possibility,
Supervisor Geiger suggests that when the stage is reached
where numbers are running out, quota fills are no longer the
problem. This is so because quota fills occur when there is still
“sample” (numbers) left. But in this last full week of the pro-
ject, the problem was that the sample itself was running out.
(13:2600–2601)
This process of eliminating the possibilities (so far as this re-
cord suggests) indicates that Janice Rinehart simply took a
break for these 47 minutes. In this connection, observe that this
break period occurred at a normal suppertime starting at 5:31
p.m. (Line 181) Based on Rinehart’s earlier testimony about
the meal breaks that she took, this would have been one of her
30-minute or more meal breaks for which, as she testified
(10:1917; 11:1983), she did not claim as actual hours. Later on
the same page of the intcheck there are two other contested
gaps. The first of these (contested call 26 at line 195) is a 26-
minute call (beginning at 6:43 p.m.) to an answering machine,
and the second (contested call 27 at line 200) is a 15-minute
complete, for which Geiger gave Rinehart a pass (13:2616).
While Rinehart could have brought something from the down-
stairs deli back to her desk for supper as to either of these gaps,
the existence of the longer 47-minute break, which fits more
with a normal supper hour, suggests that Rinehart simply en-
joyed this 47 minutes as her supper break—even though she
normally did not take an evening meal break (11:2106).
Rinehart’s last call (or “screen up”) that June 16 ended at 10:53
p.m. (GCX 54 at 16 line 111) Recall that Rinehart concedes
she “probably” took some of a 71-minute gap (involving a 32-
second “No answer”—contested call 21) on June 16 (GCX 54
at 11 line 56) for lunch. In any event, I find that, in June 1999,
Supervisor Geiger reasonably could have viewed this 52-
minute gap on contested call 25 as excessive for a complete,
that her 10-minute allowance (subtracting only .7 hour) for the
call was generous, and that her implied conclusion that
Rinehart simply took a break was reasonable based on Geiger’s
knowledge and experience.
Before moving to the next topic, I make one or two quick
observations about the rebuttal testimony of Supervisor Uria-
GALLUP, INC. 1271
Ruiz concerning testimony by Rinehart (9:1776–1781; 11:1987,
2109–2115) that it was difficult even to meet quota on Advent-
ist W470 as of June 16, it being near the end of the project, and
especially so with the shorter time that Supervisor Geiger was
leaving Rinehart after Geiger’s subtractions at trial. Uria-
Ruiz’s testimony is in the nature of begging the question of
what was Janice Rinehart doing during the time gaps—working
on quota fills and such or taking breaks. To help me resolve
that question, Uria-Ruiz should have addressed the testimony
by Supervisor Geiger about the scrambling going on that last
full week of Adventist W470 because the project was running
out of numbers. Uria-Ruiz did not do so. It is useless to take a
short span of time, when Rinehart was able to pull in several
completes, and then, taking that block of time as something
Rinehart could achieve over the rest of the day, argue that
Rinehart really could have doubled her production (that would
be 10 completes per hour, 11:2115, Rinehart) had she worked
all the time instead of, it is implied, taking breaks (15:3116), or
as phrased in Gallup’s Reply Brief (at 22), working produc-
tively and then coasting with long breaks.
Supervisor Uria-Ruiz acknowledges that Janice Rinehart was
a “very productive” interviewer. (15:3116) And Gallup’s re-
cords reflect that to be the case that 4-day week, with Rinehart
pulling in the most completes for Adventist W470 on June 14
and 16 (57 and 59 completes; RX 52 col. “Total CMs”—
13:2549–2550) and Lisa Miller on June 15 and 17 (46 and 30
completes). As Supervisor Geiger suggests, it is in the finan-
cial interest of the interviewers to complete surveys as quickly
as can be done properly and courteously because the interview-
ers are paid for completed surveys. (13:2613)
Supervisor Uria-Ruiz’s criticism of Rinehart’s devotion to
duty, followed by the complimentary phrase about being a
“very productive” interviewer, had all the air of those lines in
Scripture (Mark 7:6):
This people honors me with their lips, but their hearts are far
from me.
Our next category is “Illness.” This category has two calls
of about an hour each on Adventist W470. (Contested calls 17
and 35) Call 17 is for 57 minutes (3428 seconds) on June 15.
The other gap, call 35, is 65 minutes with seconds of 3910 on
June 17. (GCX 54 at 9 line 134 and 17 line 43) Supervisor
Geiger subtracted .9 hour (54 minutes) from the first (13:2653)
and 1.0 hour from the second (13:2664–2665) Geiger testified
that the “Illness” code means that the person was sick and did
not want to do the survey. (13:2651) Geiger implies that such
a call would be very short. There are not many illness calls on
the intcheck. I count only six, and four of those are contested
(calls 7, 15, 17, and 35) with the gaps running from 13 minutes
(call 7) to 65 minutes (call 35). The two non-contested calls
(the fourth and fifth illness calls) lasted 64 and 68 seconds on
June 16 and 17, respectively (GCX 54 at 13 line 185 and 16
line 12).
When asked whether she spoke to the respondent for 57
minutes (call 17), Rinehart replied, “Maybe and maybe not.”
(11:2019) MCI’s record (RX 62 at 1, third item from bottom)
shows that the actual telephone call, from the start of dialing to
the disconnection, lasted exactly 58 seconds—16 seconds for
dialing and ringing and 42 seconds that the receiver telephone
was “off the hook.” (15:2992, Compagna) This call was not a
completed survey where, after the disconnect, Rinehart possibly
went into “Edit mode” to correct spelling and typing errors
while the computer was still showing a connection with the
“screen up.” Supervisor Geiger subtracted .9 hour (13:2652)
thereby leaving a generous 3 minutes for this call.
A similar result would obtain for the 65-minute gap (call 35)
for which Geiger deducted 1.0 hour (13:2664–2665), thereby
leaving Rinehart a generous 5 minutes for the call. Notwith-
standing Rinehart’s testimony (11:2067–2068, 2071) that the
call may or may not have lasted 65 minutes (and that any re-
mainder “possibly” was or was not actual work time36), we
know from MCI’s record (RX 62 at 2, second to last call) that
the June 17 call to this number lasted only 49 seconds. I find
that Supervisor Geiger, in June 1999, reasonably would have
deducted 1.0 for this “illness” call from the Rinehart’s logged
on hours that day. Respecting the “Illness” category as sur-
veyed here, that brings the total deductions to 1.9 hours.
Turn now to the category for “Specific callback.” Earlier I
described that a “specific callback” means that the respondent
has agreed to a specific time to be called back to do the inter-
view. Interviewers will even work “off screen” in order to
convert a specific callback into a complete. The question here
focuses on the first stage—how long it typically takes to proc-
ess a call in which the respondent agrees to a later call at a spe-
cific time to do the interview. Supervisor Geiger states that an
acceptable time for that is 2 minutes. (13:2596–2599) In so
testifying, Geiger pointed to 2-minute gap (76 seconds) for a
specific callback. (GCX 54 at 10 line 9) There are many spe-
cific callbacks on the intcheck (112 by my count for the 4 days
in issue), and a visual check shows that nearly all (aside from
the contested ones here plus about three others of about 4 min-
utes to about 5 minutes) are made well within 2 minutes.
The category “Specific callback” has five contested calls
(numbers 8, 9, 20, 28, and 34). I focus on the two that have the
largest gaps, that being call 8, a 70-minute gap of 4230 sec-
onds, and call 9, a 54-minute gap of 3162 seconds (GCX 54 at
4 lines 161 and 181), both on June 14. At trial Supervisor Gei-
ger deducted 1.1 hours for the 70-minute call and .8 hour for
the 54-minute call. (13:2637–2638) Calls 20 and 28 have sub-
stantial gaps of 23 and 26 minutes, respectively, and call 34 is a
6-minute gap with a screen up situation of just 84 seconds, but I
shall skip these as the larger ones serve the purpose of under-
standing what happened.
Respecting the 70-minute gap, questioned call number 8, and
whether she spoke to the respondent for 70 minutes, Rinehart
answered, “Maybe and maybe not,” adding that it was a possi-
bility. It happened—“Not real often, but yes, it did happen.”
(11:1999–2000) Let us see if it happened this time. Inspecting
the telephone number and time on the intcheck (GCX 54 at 4
line 161), and finding a match for the ending time of 5:44 p.m.
(“17:44”) on MCI’s record (RX 62 at 1 line item number 6), I
see that the time for dialing and ringing consumed 12 seconds
and the conversation, or “off hook,” portion another 38 sec-

36 This apparently means, as to the “possibly not” actual worktime,
that such time was a break.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
onds, for a total actual call time of 50 seconds. Thus, I find,
this call was not one of those times when it happened that
Janice Rinehart, in obtaining a special callback appointment,
took an hour rather than 2 minutes or so.
Shift now to contested call number 9, the 52-minute gap (52
minutes and 42 seconds). To the same question as before,
Janice Rinehart answered (11:2000), “Maybe and maybe not. It
just depended pretty much on the respondents.” MCI’s record
shows a telephone number match, and an ending time match of
7:13 p.m., one line below that of the call just discussed. (RX
62 at 1, seventh call) MCI’s line item shows that the dialing
and ringing time required 12 seconds, and the “off hook” por-
tion another 40 seconds, for a total actual duration time for the
call of 52 seconds. Again, therefore, this call was not one of
those exceptional ones that would occupy Janice Rinehart for
nearly an hour.
In light of the foregoing, I find that, in June 1999, Supervisor
Geiger reasonably deducted 1.1 hours and .8 hour for calls 8
and 9, leaving a generous allowance of 4 minutes (double the
“acceptable” time) for each call. Adding the two calls of 1.1
hours and .8 hour gives a total deduction of 1.9 hours for this
category of “Specific callback.”
Recapping the total hours probably deducted by Supervisor
Geiger in June 1999 for these seven categories reflects as fol-
lows: answering machines, 3.2; no answer, 1.1; respondent is
unavailable for study, 1.3; screen failure, 1.5; complete, .7;
illness, 1.9;, and specific callbacks, 1.9, for a grand total of 11.6
hours. Subtracting these 11.6 hours from Janice Rinehart’s
logged-on hours of 40.7 gives us a weekly total of 29.1 hours as
the bulk figure for what Geiger probably deducted that June.
Although that figure is greater than the 28.7 hours that Geiger
actually allowed on that June 23 (RX 53), hours that I have not
counted remain in the other 5 categories. Adding, at this point,
those remaining hours, as given by Geiger at trial, yields the
following hours: Death of respondent, .3; Bad/disconnected
number, .0; Nonspecific callback, .3; Non-target, .1; and Span-
ish interviewer wanted, .3. These uncounted numbers total 1.0
hours. If that figure of 1.0 hours were subtracted from the 29.1
that I have reached, the total would be 28.1—less than the 28.7
that Geiger actually allowed that June 23, but more than the
25.9 that Supervisor Geiger allowed at trial. Of course, in these
seven categories (actually six, not counting answering ma-
chines) are a few numbers that Geiger possibly would have
included in her deductions that June. Were I to examine the
five remaining categories, I suspect that I would conclude that
part of the 1.0 probably would not have been among the deduc-
tions that Geiger made in June 1999.
In short, my mostly complete effort at the numbers has not
produced a perfect match. But exact accuracy has not been the
goal, as such a goal would be unattainable anyhow. (Supervi-
sor Geiger could not remember what she had done, and could
only approximate what she did do that June 23, 1999 in the
process, at trial, of showing what she would do today.) Instead,
as part of the process of resolving credibility, I have sought to
determine whether Supervisor Geiger had a reasonable basis,
and methodology, for the numbers that she arrived at in June
1999. I discuss this further in a moment.
(5) Supervisor Geiger checks others
Supervisor Geiger also checked the weekly printout (RX 52)
for Adventist W470 as to the other employees besides Janice
Rinehart. In doing so, she noticed that Lisa Miller also claimed
many hours on Wednesday, June 16—8 hours in fact.
(13:2567, 2577; 14:2874) As shown by the printout, the other
trackers on the printout had fewer hours on this project than
either Rinehart or Miller. Also, no others on the printout
claimed more hours than the study was “up.” (13:2560, Gei-
ger) In checking Miller’s payslip for the date of June 16 (GCX
19 at 3), and calling up a printout (RX 54) from Gallup’s intra-
net database for that date, plus an intcheck (no copy identified
or offered in evidence), Geiger determined that Miller had
claimed 8.0 hours and had been logged on to the system even
longer. Although Miller’s actual time on the computer was just
7.6 hours, the difference was well within the allowed grace
period. The extra .4 hour, as part of the grace period, would be
added to the 7.6 because Miller was logged on to the system for
a sufficient time (duration number not specified on the record)
to cover the .4 hour needed. (13:2577–2579, 2585–2588;
14:2783–2876, Geiger) From the record, it appears that Lisa
Miller’s hours on Adventist W470 were within the permissible
range for that Wednesday, June 16.
The General Counsel argues (Br. at 48) that Geiger “conven-
iently ignored” a red flag as to Lisa Miller, for a separate Ad-
ventist project, on that June 16. The asserted discrepancy
shows up when the time of 1 hour 55 minutes on the intranet
printout (RX 54) for Adventist W169, or the “Adventist Urgent
Care Track,” is compared with Miller’s claimed 3.0 actual
hours on that project for that date on her payslip (GCX 19 at 3).
[Recall that the intranet page is called up by date and the inter-
viewer’s ID number. (13:2585, Geiger) That page shows the
projects the interviewer worked that date. For Lisa Miller, this
is confirmed by her paysheet, GCX 19 at 3. In short, the intra-
net page pulled up will show all projects worked that date, not
just the one being investigated.] Geiger admits that she cannot
explain the discrepancy because she did not investigate it.
Asked why she did not investigate it, Geiger explained
(14:2876):
That wasn’t the track I was looking at. I was looking at the
Adventist in/and out ER37 track.
That is the same track, or project, as Adventist W470, as re-
flected on Janice Rinehart’s payslips. (GCX 16 at 3) Asked
why Geiger decided to look at Janice Rinehart’s hours for the
rest of the week, Supervisor Geiger, extending her initial “red
flag” testimony as to why she checked Wednesday, June 16
(13:2551, 2569, 2590; 14:2854), advises that it was because of
the (large) discrepancy of 4.8 hours for that Wednesday, June
16. (14:2877) At one point Supervisor Geiger (who no longer
works at Gallup) momentarily suggests, indirectly, that Advent-
ist W470 is the “Pops” track. (13:2561) Not so. “Pops” is
another name for Adventist W169 (the one Lisa Miller

37 The track name, garbled in the transcript, is shown as modified by
the stipulated (RX 87) correction as to this item. (GCX 1rrr at 3) The
other exhibits support this correction.
GALLUP, INC. 1273
worked), and Rinehart worked “Pops” on Monday and Tues-
day, June 21-22. (GCX 16 at 5–6)
Having examined and summarized these points, I find noth-
ing developed in the record that points to anything done, or not
done, here by Supervisor Geiger that would suggest anything
improper respecting the Lisa Miller matter. For example, the
General Counsel did not show that it is Gallup policy (or at
least Geiger’s practice) to investigate in all directions, as indi-
cated by possible discrepancies, whenever the supervisor is
checking only one track. As I cautioned the General Counsel at
trial, I need to see evidence of how Geiger deviated from that
which she ordinarily would have done. (14:2886) No such
evidence was offered.
The General Counsel also argues (Brief at 49) disparity fa-
voring one Russell Lund. About May 1999, Beverly Robinson
testified, she and Catherine Wagley went to Payroll Coordina-
tor Mike Cota (an admitted agent of Gallup) to see if their pay-
roll sheets matched the new payroll tracking system. Cota said
that Robinson’s was about 30 minutes high, and Wagley’s high
by a bit less than Robinson’s. “Don’t worry,” he told them,
“What we’re concerned about are people that are really falsify-
ing their hours.” Cota said he could give them an example. He
then showed them the paysheet of an employee who claimed 8
hours on a project when the computer showed that he had
worked only 4 hours. Robinson could see that the employee’s
name was Russell Lund. (Although not controlling, there is no
evidence that Lund worked on Geiger’s team.) Robinson testi-
fied that Lund is still employed. (3:590–592) Catherine
Wagley testified consistent with Robinson. (2:399–401) As
mentioned earlier, Cota did not testify. Robinson and Wagley
testified credibly. Gallup offered no rebuttal or explanatory
evidence and does not address this matter on brief.
The May date for the incident suggests that the Cota conver-
sation possibly occurred before the union activity became open.
Even if the event took place in late May, and even if Lund, not
shown to be an open supporter of the Union, was openly neutral
respecting the union matter, possible disparity exists because of
the prominent activity of Janice Rinehart in supporting the Un-
ion.
Falsification of hours is exactly what Gallup fired Janice
Rinehart for, so the stated basis of her termination meets the
test mentioned by Cota. However, and although the General
Counsel does not articulate a theory, the situation does show an
apparently more favorable treatment for Lund than for that
extended to Rinehart. The Government was not required to go
further and adduce evidence showing the reason for no termina-
tion of Lund. Possibly there is a reason, such as this was a one-
time incident, Lund simply was confused about some numbers,
and as Lund was on the 35-hour team and his 5-hour grace
period for the week, that justified a warning rather than a dis-
charge. Whatever the possibilities, the burden shifted to Gallup
to offer that explanation. Gallup chose not to contest the issue.
That is its right. In the absence of any explanatory evidence
rebutting the Government’s evidence, and having found Robin-
son and Wagley credible witnesses, I now infer and find a dis-
parity of treatment that was applied unfavorably as to Janice
Rinehart. I will address this point later when I discuss the Gen-
eral Counsel’s prima facie case.
The General Counsel mentions another incident as asserted
disparity, this one involving Shari Patty. (Br. at 48) As the
General Counsel there states, Patty’s records for June 24 (not
June 27) reflect a 1-hour shortfall between the 7.8 actual hours
claimed on her payslip (RX 56) for the project VNS W562 and
the 6.8 hours shown in her hand notes on that same document.
Patty was given credit for the claimed 7.8 actual hours. (RX
55) However, as Gallup correctly observes (Br. at 77-79; Re-
ply at 18–20), Supervisor Geiger credibly explained that Patty
apparently had thought it unnecessary to show the 1.0 hour that
Patty had spent, at Geiger’s request, assisting Geiger resolve
sample issues concerning the survey. Added to the 6.8 hours,
the missing 1.0 hour brings the total to a match with the 7.8
actual hours claimed. Crediting Geiger, I therefore find no
disparity in the Shari Patty example.
For the Government’s final example of disparity in treat-
ment, the General Counsel (Br. at 47) cites the example of
Tommy Nowlin, fired on April 24, 1999 for falsification of
hours. (GCX 5; RX 12) Some months earlier, when Nowlin
was a 7-week employee, he was not fired for similar conduct,
but instead received further training in how to report his hours.
This was in accordance with an understanding among the su-
pervisors to give new (through 7 weeks) employees further
education in the pay system. Janice Rinehart, of course, was
not a new employee, and I find that such additional training for
a new employee does not constitute any disparity compared to
no additional training opportunity for Janice Rinehart in June
1999. Nowlin was discharged that April because reports that he
was bragging about falsifying his time reports triggered an
investigation that discovered such falsification and he was fired
the next day. (1:103–107, Uria-Ruiz; GCX 5) The General
Counsel’s argument that Rinehart was not bragging about falsi-
fying suffers from some disconnection of logic and relevance.
The bragging merely served as the triggering event for the in-
vestigation. Our triggering event here was Stinson’s call that
led to the red flag of June 16.
Additionally as to Nowlin the General Counsel impliedly ar-
gues disparity from a single line of the exhibit that states,
“Tommy was chronically short working the hours that were
required of him.” (GCX 3 at 3) The disparity implied here is
that Gallup gave Nowlin a pass (not extended to Janice
Rinehart) on the requirement that he meet his team’s 15-hour
requirement (1:104, Uria-Ruiz), for nothing was done until it
coincided with his bragging and subsequent discharge. The
problem is that the language in the quoted line is ambiguous
and could just as well mean that, in the investigation into the
report on the bragging, Gallup discovered that, as well as falsi-
fying his hours on the occasion or occasions reported, Nowlin
had been doing it for some time (or at least not working the
required hours for some time, even if not falsified). Because of
the ambiguity, I am unable to count Nowlin’s case as an exam-
ple of disparity.
g. The Government’s prima facie case
Has the General Counsel proved, prima facie, that a moving
reason for Geiger’s June 24, 1994 discharge of Janice Rinehart
was Rinehart’s union activities? Aside from relying on the
Russell Lund disparity to show a prima facie case, and animus
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1274
from the 8(a)(1) allegations (a majority of which I have dis-
missed), the General Counsel (Brief at 49-51) argues that
Janice Rinehart had never changed “her method”38 of reporting
hours worked, and that in the past Gallup was satisfied with
Rinehart’s performance because of her high productivity. But,
Gallup “began to ask questions about these [reporting] practices
only after she became a lead union adherent.”
The latter point really goes to the heart of the case, which is
whether the call from Project Administrator Tracy Stinson was
unlawfully motivated by Gallup. Stinson requested a study of
the Adventist project, and Supervisor Geiger printed a copy
(RX 52) of the data on that project—Adventist W470.
(13:2545–2548; 14:2869–2870) Recall that earlier I indicated
that Stinson’s call would have to be discussed later. Later is
now.
Earlier I indicated that Stinson’s call came after Adventist
W470 had just ended, and certainly that is what the testimony
states, especially that of Supervisor Geiger when she describes
the numbers “running out.” (13:2551, 2553, 2560) However,
could it be that Geiger, in speaking about the project ending
that last full week, simply meant that it was ending for that
month and that it would begin anew in July? The evidence
does not answer this question directly, and possibly not indi-
rectly. There is one item that I did not mention earlier. On the
first page of the sealed exhibit (GCX 13), line item ten is for
Access Code 6942,39 “Adventist IP 10/98–12/99.” No one tells
us what the time-frame reference means. Could it mean that
the study operates, without break, for 15 months from October
1998 through December 1999? Does it mean the contract cov-
ers that period, but that the study will be done in separate
monthly segments? The first possibility is not correct because
we know that in June 1999 the project ended—the question
here being whether that was totally or just for 1 month.
It therefore appears possible that Adventist W470 may have
been a 15-month contractual study providing for monthly study
results. If so, then the study was scheduled to resume in July,
then August, and so on through 1999. But even if that is so,
since the quota was set for the 15-month contract at, as we have
seen, five completed surveys per hour (and see sealed GCX 13
at 1), presumably all that Stinson’s call to Supervisor Geiger,
for a study on raising the quota, could do would be to collect
data either for a renewal contract possibly about to be negoti-
ated, or for a proposal to reopen the existing contract. The
parties did not address this question at trial, nor have they done
so on brief. In any event, my earlier observation still holds.
The nature of Stinson’s call asked about doing something to
increase the profit margin. The implication of Geiger’s account
is that Gallup assertedly wanted more profit now, not in some
future contract. Yet after Geiger’s study, no change was made
in the quota. Suddenly, after Rinehart’s discharge, Gallup ap-
parently had no further need to change the quota.

38 “Her” method is correct. Unfortunately for Rinehart, Gallup’s
policy reflects the old saying of an iron-willed boss or parent—“My
way or the highway.”
39 Adventist W470. (GCX 16 at 1) The access code is for Gallup’s
internal use. (1:75, Uria-Ruiz)
But that gives us another question. Did Rinehart’s discharge
resolve the issue because that got rid of a strong union sup-
porter, or because it eliminated a person who was improperly
inflating the number of actual hours, thereby hurting profits?
Actually, as the record does not have the profit numbers, either
before or after Rinehart’s discharge, I am unable to evaluate the
claim of low profits. But as I wrote earlier, I am not required to
accept the asserted purpose of Stinson’s call as gospel. In fact I
do not. Although some ambiguity exists over the length of the
Adventist W470 contract, and whether the project ended per-
manently in late June or merely for that month, the stated pur-
pose of the call (with no evidence offered as to any increase in
hours or drop in the profit on Adventist W470), its timing, and
the result of no change in the quota still appear to suggest a
purpose different from that which was stated. I can, and do,
infer that a different motive was behind Stinson’s call. The
next question is whether the surrounding circumstances justify
my drawing an inference that the other motive was the unlawful
one of ridding Gallup of a Union thorn.
The surrounding circumstances include a handful of 8(a)(1)
findings, the strong and open union activities of Janice
Rinehart, the timing, and the disparity respecting Russell Lund.
As to the timing, because the motivation appears to have come
from Gallup’s headquarters, presumably the matter took more
than a few hours to discuss and to plan. And the organizing pot
was still boiling in June (or at least “simmering,” and the Union
had already started filing charges), and even into August, fol-
lowing CEO Clifton’s late May visit and speech. Nevertheless,
although I suspect that is what happened, and that the purpose
was the unlawful one, does it rest on speculation as to what
happened in Nebraska rather than on a proper inference that
such is what happened? Can the other elements (some 8(a)(1),
strong and open union activities, and disparity) support such an
inference?
Are the inferences equal? That is, logically one inference
(no improper plan discussed or hatched in Nebraska) is just as
strong as the other (the facts logically call for an inference that
the top management in Nebraska set out to get rid of the most
active union supporters, and Janice Rinehart fit that description,
and a possible pretext existed as to her hours, so all that was
needed was an excuse to examine her hours)? In Lozano v.
Lozano, 52 S.W.3d 141 (Tex. 2001), the Texas Supreme Court
(in the majority opinion) thoughtfully articulated the rule about
equal inferences as follows:
Properly applied, the equal inference rule is but a species of
the no evidence rule, emphasizing that when the circumstan-
tial evidence is so slight that any plausible inference is purely
a guess, it is in legal effect no evidence. But circumstantial
evidence is not legally insufficient merely because more than
one reasonable inference may be drawn from it. If circum-
stantial evidence will support more than one reasonable infer-
ence, it is for the jury [trier of fact] to decide which is more
reasonable, subject only to review by the trial court and the
court of appeals to assure that such evidence is factually suffi-
cient.
All that is interesting, and although knowing the personal
source of any action is satisfying, I find it unnecessary for me
GALLUP, INC. 1275
to determine the personal source of any discriminatory motive
flowing from Nebraska. All that I need address is the applica-
tion of the action, not the personal source. The corporate
source is before us all—it is Gallup. And it was Gallup that
applied the action. Accordingly, I need only analyze the action
to determine whether the Government has demonstrated, prima
facie, that a moving reason for the discharge of Janice Rinehart
was her open40 and strong support of the Union.
The Government has, from me, a handful of 8(a)(1) findings.
That is one factor indicating unlawful opposition to unioniza-
tion. Another factor is the open and strong support of Rinehart
for the Union. Also, union activity was still “simmering,” and
the union already had filed charges, when Rinehart was fired.
Then there is the example of disparity of treatment when
Gallup did not fire Russell Lund in May, yet did fire Rinehart
one month later for the same type of asserted misconduct. This
combination of factors, I find, generates a prima facie case—
not a strong one perhaps, but at least one sufficient to establish
a violation unless rebutted.
There is another factor, not developed earlier. While perhaps
not itself a marker of discriminatory motive (because there is
no showing of a departure from past practice), this factor at
least provides a supportive atmosphere for the above factors. I
refer to the circumstances of Rinehart’s discharge. First, de-
spite the fact that Janice Rinehart admittedly was a high pro-
ducer, and that normally any management would prefer to re-
tain such a productive employee, Gallup did not first call
Rinehart in and, as part of a joint and cordial inquiry, ask her
how she had arrived at her figures when Geiger had reached
numbers substantially different. Supervisor Barlow asserts that,
despite the normal preference to retain, the requirement of good
ethical job performance trumped Rinehart’s high-producer card.
(12:2300–2301) Indeed, Barlow even claims that, in his opin-
ion, Rinehart was deliberately cheating because the discrepancy
was so large. (12:2302–2304)
Although I agree that discharge could be the ultimate result
from the foregoing process, what strikes me about Gallup’s
procedure is the appearance of an improper motive. After all,
appearances count. Indeed, as to federal judges there is a stat-
ute that addresses the appearance of impropriety. Recently one
federal judge, after telling a newspaper reporter that the case
before her was more complex than some other case, found her-
self recused by the First Circuit Court of Appeals on the basis
that her statement could create, in the mind of a reasonable
person, the appearance of partiality. In Re Boston’s Children
First, 244 F.3d 164, 171 (1st Cir. 2001). In our case, Gallup’s
approach, taken with someone that Gallup admittedly would
want to retain absent the discrepancy, was accusatory, not one
of perplexed concern.
Respecting this topic, recall Barlow’s statement that he had
no doubt Rinehart was present 40 hours but that she had
worked only 28.7 hours, to which Rinehart said that such (im-
plying the latter figure) was incorrect. (13:2678–2679, Geiger)
At that point, Geiger acknowledges, Rinehart asked whether

40 Such as putting her signature in the number one spot on the list of
20 names that the Union’s letter (RX 5) of May 16 to Gallup identified
as the in-plant organizing committee.
she was being fired, and both Barlow and Geiger said yes.
Then, Geiger tells us (13:2679), Rinehart turned to Geiger and
asked (direct address pronouns substituted) (13:2679):
Why didn’t you talk to me about it?
Not answering Rinehart’s piercing question, Geiger testified
that she said that if Rinehart wanted Geiger to explain how she
had arrived at the numbers she could do so, that she was talking
with Rinehart about it now, that nothing could be done, it was
not personal, and that they had to let her go. (13:2679) As
mentioned earlier, Rinehart was in “total shock” at this point.
(9:1744) And it was at this point, Supervisor Geiger reports,
that the termination notice (JX 9) was presented to Rinehart.
(13:2679) Upset and shaking, Rinehart had to sit to read it.
(13:2680)
This description leads to the conclusion that the nature of the
termination meeting was implemental. There was no cordial
effort to discover, through friendly cooperation, how manage-
ment and a “very productive” (15:3116, Uria-Ruiz) interviewer
could be so far apart on their numbers. Supervisor Barlow
assumes, based on the size of the gap, that Rinehart was cheat-
ing. But as we have seen, any misunderstanding about how to
treat quota fills could well lead to a large difference in the
numbers. The plain fact is, Rinehart’s termination has all the
appearance of a rush to judgment—get the numbers, and get her
out of here!
Recall my earlier finding that Gallup “jumped the gun” re-
specting the termination in the sense that Rinehart had a second
week to make up any shortfall in her hours. Thus, if Gallup’s
motive had been to determine whether it could retain this high
producer, it simply could have conferred with her in a nonaccu-
satory atmosphere to ascertain whether, if Gallup’s hours were
correct, Janice Rinehart was laboring under an incorrect under-
standing of how to report her hours, or whether Rinehart in fact
was cheating. If the former, then Gallup could have retained
this high producer by correcting her misunderstanding and
assuring her that she could make up the shortfall in hours the
following week by working overtime. Simple.
But the simple was not followed. Instead, double-teaming
Rinehart in the emotionally-charged atmosphere of a confronta-
tional and implemental setting, Gallup gave Rinehart the
“bum’s rush” out the door. For me, this accusatory approach
toward a high producer reflects an unlawful motive because it
is so contrary to common sense and normal business practice.
At the very least, the nature of this episode lends strong support
to the markers of discrimination listed earlier.
Respecting my view of Gallup’s “rush to judgment” con-
cerning Janice Rinehart, consider this. The course Gallup fol-
lowed of viewing, printing, and analyzing computer printouts,
and then accusing and terminating a “very productive” inter-
viewer, took the route both of complexity and ambiguity with-
out the one additional (but solid and common sense) step of
visual observation. Even if this additional step would have
added another day or two to the investigation, it would have
been well worth it. Visual observation by Supervisor Geiger in
just walking by Rinehart’s cube, especially on seeing Rinehart
away from her cube, would have given Geiger eyeball proof of
whether Rinehart was leaving her screen up while away from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
her cube. (It also may have confirmed that Rinehart was sitting
there waiting for a number to drop.) How strange that Supervi-
sor Geiger did not chose to include the simplest and most direct
procedure of all, and the one method that would provide eyeball
proof of what Janice Rinehart was doing (good or bad)—just
walk around and look!
Gallup had another way of monitoring Rinehart’s work to
determine whether, in fact (without all the ambiguity from the
computer printouts), Rinehart was cheating. Indeed, Gallup has
a “Support Team” that does it every day (or night) as part of
Gallup’s regular business operation. Not only is it not a secret,
it is part of the training manual. Right there on page 19 of the
ITM. (JX 23) It’s called “Taping and Monitoring,” and it is
part of Gallup’s quality control system. It is used in conjunc-
tion with the quality evaluations that the supervisors give the
interviewers. As noted on page 19, in the paragraph on evalua-
tions, Appendix D (JX 23 at 95–98) has a two-page form that
the support team or the supervisors use for the various topics in
reaching total scores for four general areas. The scores for
those four general areas (Attitude, Probing, Interviewing tech-
niques, and Coding, with their total of 37 topics for the group
of four) are transferred to the evaluation log that we already
have seen in, for example, Janice Rinehart’s case (GCX 14,
average score of 49.48 for 25 evaluations).
The support team tape records and monitors interviewers
nightly. (JX 23 at 19) Obviously not every call is tape re-
corded and monitored, for the system presumably relies on
spot-checking the calls. Aside from the main business use of
the system, the process also gets into disciplinary matters
(1:134, Uria-Ruiz), such as for “falsifying” (5:939, Zieler) or
“cheating” (15:3103, Lucario). A couple of the witnesses in
this case were, or are, members of the support team: Patty
Collette (12:2414) and Tristan Lucario (12:2264, Barlow;
15:3102–3103, 3107–3108, Lucario).
The point is, if Gallup had truly been interested in determin-
ing whether it could retain a high producer, it certainly had at
least two direct methods of observing and monitoring just what
Janice Rinehart was doing—direct visual observation by Su-
pervisor Geiger, and taping and monitoring by the support
team. That process may have taken another day or two, or even
three, before Supervisor Geiger conferred with Rinehart, but
the ambiguity and debate would have been eliminated.
There is no relevant evidence as to Gallup’s past practice in
this regard. (Tommy Nowlin’s example does not qualify.)
Perhaps Gallup always reacts in the more indirect, complicated,
and accusatory manner (collecting and analyzing computer
records and then accusing and terminating without the benefit
of eyeball confirmation) rather than in an approach geared to
retaining, if possible, high producers who may have reported
incorrect figures based on some misunderstanding of Gallup’s
complicated compensation system. That is, perhaps Gallup
supervisors just never go and look. Accordingly, in the absence
of evidence of a departure from past practice, I treat Gallup’s
failure to include the more direct and common sense avenues
(going and looking, and use of the support team) of obtaining
verifying evidence as further support (although not themselves
markers) for the markers of discrimination that I listed earlier.
Turn now to Gallup’s rebuttal.
h. Gallup’s rebuttal
For its rebuttal of any potential prima facie case, Gallup ad-
duced evidence of other employees terminated for falsifying
their hours. The General Counsel does not contest that basis as
a proper ground for discharge (1:184), but in effect on brief
contends that Gallup cannot overcome the disparity example of
Russell Lund.
Leslie Bannister (not a Houston employee, 1:10) was termi-
nated February 5, 1998 for falsifying quota sheets. “Previous
warning [apparently January 21, 1998 per JX 25 at 2 for “in-
consistent track work”] was that any addition problems with
hours would result in termination.” (JX 25 at 1) Although
there is no sponsoring witness (received by stipulation, 1:10,
14) and no testimony interpreting certain notes and attached
pages (apparently from an intcheck), Gallup apparently relies
on this exhibit simply to show (11:2120) an example of an em-
ployee discharged for falsification of hours. For that limited
purpose, there is no contest. If anything, the exhibit addition-
ally may serve to support the General Counsel’s case in that it
possibly shows some disparity of treatment (by Supervisor
Catherine Langan), because of the January 21, 1998 warning
she gave rather than discharging Bannister then. No such cour-
tesy was extended to Janice Rinehart in Houston. (Even so, the
General Counsel does not cite or rely on the Bannister case.)
Darren Washington, also not a Houston employee (1:12),
was terminated (“Falsifying hours”) February 3, 1999 for
claiming on his paysheet that he had worked 4 hours on January
30 on a certain Busch survey “when he hadn’t worked on it at
all.” (JX 30) Presumably that would be a glaring difference
and wholly unrelated to what is properly classified as “actual
hours.” I find Washington’s case irrelevant to Rinehart’s.
Of no value (beyond the basic fact of discharge for falsifying
hours) are the examples of the March 1999 discharges of Jafar
Amin and Jessica Mangum. (JX 10, 11; 1:9, 14) There is no
sponsoring witness. Mangum’s exhibit has for comments,
“Worked 32 Hrs 32 min, claimed 4 Hrs 45 min,” but there are
no details that show methodology. Yury Kremenetsky, not a
Houston employee (1:12), was fired March 26, 1999 for “Falsi-
fying actual hours.” (JX 29) The manager’s written comments
tell us that Kremenetsky (JX 29):
Falsified payroll for 1 straight week. Left auto dialer running
while going to lunch & leaving building. Took hour.
Leaving the autodialer running while leaving the building for
lunch appears to be much worse than leaving a screen up for an
hour with no dials, the latter attributed to Janice Rinehart. Be-
yond the remote possibility of repeated mistakes, it clearly
would be cheating under Gallup’s pay system. Apparently all
that Gallup intends in the Kremenetsky situation is to show the
generic category for the discharge. (Br. at 64–65, 73)
Vanessa Villareal was terminated by Supervisor Uria-Ruiz
on October 26, 1998 for “Falsification of hours.” (RX 68)
Villareal claimed 5 hours on her paysheet when she worked
only 2 hours 19 minutes. Uria-Ruiz determined this by running
an intcheck. No evidence tells us what triggered Uria-Ruiz’s
investigation. When Uria-Ruiz called Villareal in, Villareal
admitted the matter. Uria-Ruiz then terminated her, and Vil-
lareal signed the termination form without qualification.
GALLUP, INC. 1277
(15:3088–3090, 3122; RX 68) Although the intcheck method-
ology is relevant, we have no details as to the nature of the time
gaps. Moreover, as Villareal admitted her action (it is not es-
tablished whether Villareal admitted simply to her entries, de-
claring a misunderstanding as to the proper procedure, or
whether she admitted knowingly doing something improper),
her case has little relevance for us because Janice Rinehart
denies the allegation of falsification.
Payroll Coordinator Mike Cota checks about 10 percent of
the paysheets against an intcheck. (11:2202–2204, Barlow)
Barlow testified that, based on reports to him from Cota’s spot
checks, he has initiated his own investigation. Based on just
such a tip from Cota (11:2204; 12:2381, 2385, 2410), Supervi-
sor Barlow, on February 8, 1999, terminated Jack Burroughs
for falsifying his hours (RX 39) and Ronald Sage for falsifying
his pay (RX 40). As to Burroughs, Barlow observed that
Burroughs was claiming a large number of hours based on a
low number of dials. Barlow then inspected Burroughs’ pay-
sheet and the intcheck. Burroughs paysheet claimed work of
5.5 hours on a Lexis-Nexis study, but the intcheck showed only
1 hour 44 minutes. (Indeed, one gap, from line 3 to line 4,
exceeds 3 hours following a “screen failure.”) Barlow termi-
nated Burroughs. (11:2205–2207; 12:2376–2378; 2396–2397,
Barlow; 16:3173, Uria-Ruiz) Burroughs was a high producer,
but Sage was not. (12:2396, Barlow)
As to Sage, he claimed that he had worked 5 hours on an
IBM study and that he had obtained two completes on the
study. But Barlow’s investigation revealed that Sage had writ-
ten case ID numbers on his paysheet that were stolen from an-
other interviewer, and that Sage really had worked only 32
minutes and had obtained zero completes. Barlow terminated
Sage. (11:2219–2222; 12:2375–2376, Barlow; 16:3173, Uria-
Ruiz)
The General Counsel attempts to distinguish the cases of
both Burroughs and Sage, the former because the low number
of dials (22) for a claimed 5.5 hours made it “easy to see that he
had lied.” Similarly, it was easy to see that Sage had lied be-
cause of the fabricated case ID numbers and zero completed
surveys. (Br. at 47) I disagree with the significance of the
Government’s argument. After a tip from Cota, Supervisor
Barlow launched his own investigation, apparently using about
the same methodology as that followed by Supervisor Geiger as
to Janice Rinehart. Moreover, the implication from the record
is that Burroughs and Sage, separately, were called in, con-
fronted with the results, and terminated. Of course, nothing
about Sage’s case shows an honest mistake. However, even as
to Janice Rinehart, both Barlow and Geiger were of the view
that she had lied. I therefore find relevance to Sage’s case.
Burroughs made his inflated claim when he was in overtime
status, and the base rate for overtime pay is the total hourly rate
made after averaging the first 40 hours. By inflating his hours,
Burroughs was running up his pay at the higher overtime rate.
Supervisor Barlow was of the opinion that Burroughs did this
deliberately. (12:2286–2287, 2396–2397) Recall that Barlow
is of the same opinion as to Janice Rinehart’s “cheating.” Ac-
cordingly, I find the Burroughs case to be fully relevant regard-
less of whether it was easy or difficult to see that he was cheat-
ing.
On July 1, a few days after Janice Rinehart’s termination,
Supervisor Charles Davenport fired Angela Lund for falsifying
“actual hours on hourly project which resulted in inaccurate
pay—claimed 25.5 hours for the week of 6/15–6/21 & actually
worked 13.3 hours as was documented by using the internet
[intranet] daily production reports.” (JX 14; 1:9, 14; 11:2121)
Supervisor Geiger appears to have signed the termination no-
tice as a witness. Indeed, the exhibit itself (JX 14), reflecting
different handwriting and ink even on photocopies, plus a com-
parison with Rinehart’s termination notice (JX 9), discloses that
Geiger filled out almost everything on Lund’s termination no-
tice. (The General Counsel does not address the fact or argue
that any particular significance should attach to such fact.)
The record gives no details of the methodology followed by
Davenport, in what way the “reports” (it is not clear whether an
intcheck was used) disclosed the asserted discrepancy, or what
Lund’s defense, if any, was. (The exhibit reflects that Lund
refused to sign.) Although the evidence is insufficient to make
a finding, a reference by Supervisor Uria-Ruiz (16:3174) to
Angela Lund and “her husband” suggests the possibility that
Angela Lund is the wife of the Russell Lund who is mentioned
earlier.
Respecting the papers for the “past-practice” terminations, I
have noted that most do not enlighten us concerning how quota
fills, for example, were handled, respecting the paysheets, be-
fore June 1999. What these past examples do show, however,
is that, when investigating and then terminating for falsification
of hours, Gallup (1) investigates by computer records, (2) con-
fronts, (3) accuses, and (4) with one exception (Russell Lund)
discharges. No effort is made (except for new employees, and
that perhaps was limited to a certain period when it was thought
by Houston’s supervisors that extra training could be needed) to
salvage high producers. Supervisor Barlow explains this tough
approach even toward high producers on the basis of the high
ethical standards that Gallup expects of interviewers.
(12:2300–2301) Geiger explains it this way (13:2627–2628):
JUDGE LINTON: Why didn’t you go to her and say:
Look, we’ve got all these discrepancies here; do you have
any explanation for them?
THE WITNESS: Well, in my experience of being an in-
terviewer, when you’re off by that much time, there isn’t
an explanation, and it really wouldn’t have mattered what
she said. She was off 4.8 hours on one project [on one
day, Wednesday, June 16] and obviously when I did that
[calculation; RX 53] throughout the whole week, there
was a difference of 12 hours. I could have gone to her and
talked to her [before Rinehart was called in for the con-
frontation, accusation, and termination] but the result
would have been the same. It’s a company policy and in
order to be fair to everyone, no matter how much I like
her, I would have go ahead and terminate her.
JUDGE LINTON: You’re saying you couldn’t conceive
of any business reason that she would have that would
make any business sense.
THE WITNESS: Right. She was a veteran interviewer,
she knew—she knows how to fill out her paysheet. [That
is the heart of the issue. If Rinehart knew not to count
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1278
time on quota fills, for example, as actual hours, then she
was cheating when she did so.] You know, if it was sim-
ply a case of misunderstanding, that would be a different
matter, but she was only logged on for 11.4 hours [on that
Wednesday] and she claimed 12. You know, she wasn’t
even in—she wasn’t even there for the amount of time that
she claimed, so there really isn’t a feasible explanation as
to why you would claim more time than you were logged
on to a project, let alone be off by 4.8 hours—well, more
than that [possibly a reference to her generous allowances
to Rinehart], but to be off by 4.8 hours on one project on
one day.
JUDGE LINTON: Okay. Thank you.
Encompassing the same view, Supervisor Geiger testified
that, even assuming that she had been motivated in part to ter-
minate Janice Rinehart because of her union activities (a matter
she denies, 13:2677), that based on her calculations, the result
would have been the same, “no matter what.” (14:2849–2850).
While I accept that testimony, I do so on the recognition that no
followup question was asked. Thus, aside from Geiger’s calcu-
lations, did she get a call from higher management that sug-
gested to her that higher management wanted her to check
Janice Rinehart’s hours for the purpose of finding a basis to
eliminate a union agitator? We will never know.
As to Gallup the company, I find that the force of its rebuttal
overcomes the prima facie case of the Government. Had
Stinson’s call clearly been shown to have been based on a
phony reason, the result could well be different. But the facts
as to Stinson’s call, although the suspicion is strong that it was
based on an unlawful motive (a motive surely emanating from
above Stinson), such a suspicion is based too much on infer-
ence and speculation to support a finding of fact. I say that a
different result possibly could have resulted because a finding
of a tainted purpose for Stinson’s call that launched the review
would have added weight to the sole disparity case of Russell
Lund. As to that bit of disparity, it is slight and isolated when
compared with Gallup’s normal steamroller approach when it
finds evidence of falsification of hours. (And for far fewer
hours than pertain to Janice Rinehart.) Indeed, no effort is
made to save a high producer, such as Jack Burroughs who was
a member of Supervisor Barlow’s executive team. Instead, it’s
Boom! And out the door they go.
Accordingly, notwithstanding my finding that the General
Counsel established a prima facie case of a violation, I further
find that, once Gallup investigated and found what reasonably
appeared to Supervisor Geiger (and also to Supervisor Barlow)
to be major falsifications over the course of Janice Rinehart’s
4-day week, June 14-17, 1999, Gallup lawfully was permitted
to discharge Janice Rinehart. Wright Line, 251 NLRB 1083,
1089 (1980),41 enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983) (as clarified by Office of
Workers’ Compensation Programs v. Greenwich Collieries,

41 Note that, similar to here, Wright Line involved a discharge on the
basis of falsifying a timesheet of jobs done. Id. at 1089–1090. But the
Government’s prima facie case was much stronger there, and the com-
pany’s rebuttal much weaker than here.
512 U.S. 267, 276–278 (1994)). Finding that Gallup has car-
ried the burden of persuasion on its affirmative defense, I shall
dismiss complaint paragraph 25 at to Janice Rinehart.
i. Rinehart’s request for a witness
(1) Facts
In this orphan location, we have a topic generated by a Feb-
ruary 2, 2001 memo (not part of the record) faxed from me to
all counsel (including the Union’s lawyer) in which I asked that
they submit supplemental briefs responding to a series of ques-
tions that I posed based on the Board’s July 10, 2000 decision
in Epilepsy Foundation of Northeastern Ohio, 331 NLRB 676.
I phrased the predicate with these lines:
Recall that when Supervisor Barlow came for Ms. Rinehart,
Rinehart (alone of the four) made “numerous” (unsuccessful)
requests for a witness to accompany her. (9:1736–1738,
Rinehart; 12:2277, Barlow) From 1985 to last July, such a
request in a nonunion setting was of no effect. As you know,
that changed with Epilepsy Foundation of Northeast Ohio,
331 NLRB [676] (July 10, 2000).
The General Counsel and Gallup submitted supplemental
briefs stating and arguing their positions on the questions that I
had raised, and I have carefully considered the briefs. There is
no charge or complaint allegation in our case, either before or
after July 2000, nor any motion to amend either, to add an alle-
gation that Gallup violated the Act by denying Janice
Rinehart’s June 24 request for a witness. Moreover, in its prin-
cipal brief, dated September 21, 2000, the General Counsel did
not raise the issue.
The Government’s position is that Epilepsy applies retroac-
tively to Rinehart’s request for a witness, that the General
Counsel has not waived the application, that Section 10(b) of
the Act does not bar consideration of the issue, that the June 24,
1999 interview of Rinehart by Gallup was investigatory, and
that there should be a full remedial order. Gallup opposes each
point, either expressly or impliedly. Both parties expressed a
preference that I address the matter here and that the record not
be reopened.
There is no dispute that, on the day of Janice Rinehart’s June
24 discharge, Supervisor Geiger asked Rinehart to come to her
office. Rinehart asked whether she was in trouble. (9:1736–
1737) Geiger acknowledges that she replied, “Yes.” (13:2677)
Saying that she would be right back, Rinehart went to look for a
witness, for she believed that Gallup was “trying to fire all of
us.” (9:1737) Recall that Lynne Zieler had been terminated
just 2 days earlier.
Having some difficulty locating an interviewer who was not
on a survey, Rinehart was standing by Sherri Lee’s cubicle
when Supervisor Barlow came and informed her that he needed
to talk with her. (91737–1738) To Rinehart’s question of
whether she was in trouble, Barlow acknowledges that he said,
“Yes, there is a concern. Come to our office.” Barlow admits
that Rinehart then repeatedly requested that she be able to have
a witness come with her. To these “numerous” requests, Su-
pervisor Barlow replied, “No. I just need to talk to you.”
(12:2277, Barlow) Eventually they arrived at Geiger’s office.
GALLUP, INC. 1279
Present in Geiger’s office for the meeting were Supervisors
Geiger and Barlow and Janice Rinehart. (Nervous, Rinehart
remained standing. 9:1738) Barlow began the meeting by
asking Rinehart whether she felt that she had accurately re-
corded her hours on the paysheets to the best of her ability over
the course of the previous week. (9:1738–1739, Rinehart;
12:2278, Barlow; 13:2677–2678, Geiger) Rinehart initially
may have said that she assumed so (9:1739; 11:1975), but she
eventually said, “Yes” (9:1740), and Barlow (12:2278) and
Geiger (13:2677–2678) recall that Rinehart said, “Yes.” In any
event, Barlow proceeded to report some of the numbers that
Geiger had reached by which Rinehart was off, in particular the
4.8 hours for Wednesday, June 16 and the weekly total claimed
for actual hours of 40.3 against Geiger’s 28.7. Rinehart said
that was not true, that she had worked the hours claimed.
(9:1740, 1779, 1785; 11:1983–1985, Rinehart; 12:2278, 2281–
2282, Barlow; 13:2678, Geiger) Supervisor Barlow said that
Rinehart had received enough training that she should have
known what she was doing, and that because of the discrepancy
in the hours that they were going to have to let her go. From
there the meeting proceeded to the termination notice previ-
ously discussed. (9:1741–1742, Rinehart; 12:2282, 2299, Bar-
low; 13:2679, Geiger)
(2) Conclusions
Regardless of whether the Board’s decision in Epilepsy
would otherwise apply retroactively to this case, and the Board
in that indicates that it would, I find, in agreement with Gallup,
that the Union and the General Counsel have waived whatever
Epilepsy rights might have applied here. The Board’s decision
in Epilepsy issued on July 10, 2000. Aside from some reason-
able time to become aware of Epilepsy, neither the Union nor
the General Counsel ever raised the case as applicable to Janice
Rinehart’s situation. Feeling compelled to “at least solicit”
their positions, as I faxed counsel on February 2 of this year, I
raised the matter and asked for the positions of the parties. The
parties earlier had filed their principal briefs in this case on
September 23, 2000—over 2 months after Epilepsy and over 4
months before my faxed memo of February 2 of this year. If
this were a limitations matter under Section 10(b) of the Act,
then the 6-month limitations period expired on January 10,
2001. It cannot be said that the matter was fully litigated, for
there was no legal notice or issue to litigate before the Board’s
decision in Epilepsy. In Epilepsy, one theory there of the Gen-
eral Counsel was liability under NLRB v. Weingarten, 420 U.S.
251 (1975). See Epilepsy, supra, 331 at 705 (respecting Arnis
Borgs). Thus, the General Counsel there was proceeding with
Weingarten as an alternative theory of liability. Not so here. In
short, I find that any Epilepsy rights here have been waived.
Finally, even should it be determined that the General Coun-
sel is correct up to this point, I further find that the General
Counsel cannot prevail under Epilepsy as to Janice Rinehart
because the meeting of June 24, 1999, was not investigative in
nature. It was confrontational, explanatory, and implemental.
Supervisor Barlow’s question asking Rinehart whether she
thought that she had filled out her paysheets correctly was
merely a way of identifying the underlying problem. (Granted,
in theory Rinehart could have answered, “No. I admit that I
falsified my time. Please show me mercy.” That possibility is
extremely remote, at least where, as here, Barlow proceeded
directly into his explanation and there was no effort made to
obtain an admission.) After Rinehart’s affirmative response,
Barlow summarized the hourly shortage that Supervisor Geiger
had discovered, and then Barlow terminated Rinehart. Neither
Barlow nor Geiger ever asked Rinehart to admit to falsification
or even to explain how she could have arrived at her figures.
Certainly the meeting was longer than it would have taken
Barlow or Geiger simply to have handed Rinehart a “pink slip,”
but for the reasons the Board mentions in Baton Rouge Water
Works Co., 246 NLRB 995, 998 (1979), the explanation, even
with the confrontational atmosphere that puts the employee into
a “state of shock” (9:1744, Rinehart), is much preferred to no
explanation at all. Also, the termination notice (JX 9) that was
given to Rinehart to sign says nothing about admitting to the
stated basis for the discharge. To the extent that an unqualified
signature might be used as an admission, no attempt was made
to prevent Rinehart from adding her qualification that, in effect,
the discharge ground was a lie made in retaliation for her union
activities. (And this is so even though Gallup’s policy, that
prohibited tendering a copy of what Rinehart had just signed,
shows no class whatsoever.)
Because the nature of the June 24, 1999 meeting was merely
to confront, to explain, and then to inform Janice Rinehart that
she was terminated, rather than to investigate the matter, Janice
Rinehart had no right to the presence of a witness at the meet-
ing under the cases of NLRB v. Weingarten, 420 U.S. 251
(1975) and Epilepsy Foundation of Northeast Ohio, supra. I so
find. Baton Rouge Water Works Co., supra. As there is no
pending allegation or motion for me to dismiss, I shall proceed
to the next topic.
4. Sherri Lee
a. Introduction
Recall from my introduction to Janice Rinehart’s case that
the description of the general procedures applies to both
Rinehart and to Sherri Lee. As with Rinehart, Gallup’s af-
firmative defense is that Lee was terminated for “falsification
of hours worked.” From that earlier introduction, and from the
much earlier description of other events, recall also that Sherri
Lee was openly very active in her support of the Union. There
is no dispute concerning Lee’s visible support of the Union.
Even so, Lee has a knack for delivering seeming inconsisten-
cies. For example, at one point (7:1304) Lee reports that she
was very “visual” in the office, yet later (8:1674) she tells us
that during the organizing campaign she tried to be as “invisible
as possible.” As the record reflects, during the organizing
campaign, and despite any efforts by her to be the contrary, Lee
was quite visible, vocal, and assertive.
Hired May 10, 1995, Sherri Lee was fired by Gallup on June
30, 1999. (6:1022) Although the quality scores for Lynne
Zieler and Janice Rinehart were very high, Lee’s was a perfect
50. (GCX 15; 1:181–186, Uria-Ruiz) Lee’s quantity also was
very high, for she was on the 35-hour team (6:1197, 1240;
7:1277), and she was a hospital “tracker” (6:1217). She also
served as a “buddy” or mentor for the new employees. (6:1064,
1223; 7:1304)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1280
Lee was a member of Supervisor Charles Davenport’s team.
(2:230, Uria-Ruiz) About 2 p.m. (12:2312, Barlow) on
Wednesday, June 30, 1999, Davenport called Lee into his of-
fice. Present, as all agree, were Lee, Davenport, and Supervisor
Douglas Barlow. The conversation was brief. Davenport asked
Lee how accurate her reported hours were for the week of June
20 through June 27. Lee replied that she always recorded her
starting time for the day and for each project, her breaktimes,
and her ending times. According to their records, including an
intcheck that had been generated, Davenport replied, Lee had
claimed 35 hours but had worked only 29.5 hours. Lee then
offered to get her paysheets (her copies) to show them. Barlow
said that was not necessary because they had already looked at
her (original) paysheets plus the intcheck. Lee said that there
was no way her time could be off by that much. Davenport
responded that Lee was terminated for falsification of hours.
Lee then ran out the door screaming that she had been fired.
Catching up to her, Barlow told her that she could quietly col-
lect her belongings, or they would be sent to her. She said she
would do so quietly. As she packed at her cube she tried to
show Barlow her time records, but he rejected the offer. It was
clear to Lee that the minds of the two managers were closed.
Later that afternoon Lee returned to Davenport’s office. Again
Barlow was present. Lee signed her termination paper (JX 13),
writing the statement, “This termination was unjust. I have
kept actual hours recorded on my time sheets.” Lee’s request
for a copy of the one-page termination paper was refused.
(6:1057–1059; 7:1301, 1354; 8:1635–1636, Lee; 12:2310–
2317, 2398–2399, Barlow) (The foregoing is a composite de-
scription that I find to be approximately correct. I have rejected
portions of the accounts of both Lee and Barlow, as impliedly
indicated by my description. For example, Lee reports that she,
in effect, made a speech on this occasion. Even though Lee
tended to make speeches at trial, I do not believe that she did so
here. Contrary to Barlow’s claim that he did not have a conver-
sation with Lee after the termination meeting, I find, as de-
scribed by Lee, that he did. Supervisor Davenport did not tes-
tify.) At trial Lee concedes that her personal copies of the pay-
sheets (GCX 47) have the same totals (aside from one error)
that appear on the originals (GCX 18) that she submitted to
Gallup, and that neither Barlow nor Davenport knew about the
detailed times that she had recorded. (7:1409–1411) To the
extent that Lee may have made it clear to Barlow, at Lee’s
cube, that she wanted to show him starting and ending times, it
seems clear that Barlow, serving mainly as a witness, viewed
the situation as closed by the discharge decision which pre-
ceded the termination itself.
Barlow asserts that Lee’s union activities were not a factor in
her termination. He had to qualify this, however, because he is
not the manager who made the decision, nor was he present
whenever or wherever the decision was made. I fact, he never
tells us, if he knows, just who made the decision. Barlow’s
function was that of a witness to the termination, although he
was informed by supervisors Davenport and Geiger as to the
numbers developed when Lee’s paysheets were measured
against the intcheck. The Union never came up in his discus-
sions with Davenport and Geiger, Barlow reports. (12:2314–
2316)
The fact is, no one tells us who made the decision to dis-
charge Sherri Lee. We are told what triggered the investigation
that led to the intcheck that led to the discharge. As intimated a
moment ago, Supervisor Geiger was involved. Indeed, it is
Geiger who launched the investigation, generated the intcheck,
and prepared an analysis of the hours just as she had done re-
specting Janice Rinehart. When she had completed her analy-
sis, Geiger turned all the papers over to Supervisor Davenport.
(14:2850, 2906, Geiger; JX 28) In a moment I describe the
conflicting versions of why Geiger began her investigation, but
first an overview of the different approaches.
b. Overview
At trial the General Counsel did not call Supervisor Geiger
as an adverse witness and ascertain from her the details of her
involvement in Sherri Lee’s discharge. As Geiger gave at least
one pretrial affidavit (GCX 59, not offered; 14:2851), presuma-
bly she reported at least a summary of the details. Instead, the
General Counsel elected to present Sherri Lee’s version of her
actual hours (for the week in issue) as reflected in seven pages
of tables, that being the second-corrected (actually the third)
version of GCX 46 (7:1254–1259), which contains Lee’s ver-
sion of the correct numbers as based on her analysis of the
intcheck (JX 17).42 Lee then compared that result with the
numbers in her hand copy (GCX 47) of the original paysheets
(GCX 18) that she had submitted for the week in issue.
(6:1065; 7:1254–1263, 1412–1413) The main difference be-
tween Lee’s hand copy (GCX 47) and the original (GCX 18)
submitted to Gallup is that, on her hand copy, Lee inscribed the
starting and stopping times, as shown by the computer, for her
various work entries.
The procedure that Lee, aided by the General Counsel
(6:1186), followed in preparing her tables (GCX 46) was to add
the actual clock hours and then to strip out all gaps and breaks
in order to arrive at just the “pure” time. (7:1397–1403, 1412–
1413) Then Lee and the General Counsel added any “buddy”
time, plus the asserted 10-minute break for each hour (except
breaks not applied to buddy hours, 7:1387), plus 5 minutes per
project worked for the startup time required to switch projects.
(6:1113, 1126–1127; 7:1402–1404) Early on Gallup objected
that what Lee’s chart, or tables, really showed was Lee’s time
on the premises, a very different concept from “actual hours”
worked. (6:1109–1110) Indeed, recall from the summary of
Janice Rinehart’s case that Gallup’s compensation system pays
only for time on the telephone. It does not pay for startup min-
utes, time devoted to quota fills, revising off the computer, or
similar matters. (Buddy time counts toward actual hours
worked, but buddies are paid their hourly team rate for their
buddy time. 3:547, 556–557, Lambert; 7:1288, 1378, 1379,
Lee) Recall also that the ITM suggests that time in Edit mode
(JX 23 at 86–87), to correct typographical errors, is still part of
the “phone time.” This apparently is what Supervisor Geiger
was referring to when she testified that edit time to correct

42 Originally JX 17 had a cover letter of transmittal. (1:116) Later,
in part because the page numbering was complicated by the letter, the
parties removed the cover letter from the exhibit. (6:1103)
GALLUP, INC. 1281
spelling and such is counted on the computer clock as part of
actual hours. (14:2877–2878)
Here, Sherri Lee candidly tells us, for example, that she in-
cluded time devoted to the patient “Trax Fax” as part of actual
hours even if took 30 minutes off the clock to complete the
form. (6:1249–1250; 7:1271–1272, 1308) She included that
time in her actual hours because it was still “doing work for the
company.” (7:1273) The testimony on this point started with
patient “Trax Fax” forms, and merged into “editing” the sur-
veys. (7:1271–1275) Although there is a difference between
the two forms, Lee’s testimony here certainly seems to include
the patient Trax Fax forms as part of her editing process, as
other testimony by her confirms. (8:1599–1600, 1681) As
mentioned in the summary of Janice Rinehart’s case, all hospi-
tal tracks except Beth Israel (Lee’s main hospital track, 7:1267)
were on the computers by May 1999. (15:3074, Uria-Ruiz)
Although no total time is given in the record, the one item
most complained about by both Lee and Rinehart is the time
required to handle quota fills, including looking for a supervi-
sor. This could take, Lee testified (7:1268), 15 to 20 minutes
just to find a supervisor. All this time Lee would consider as
work time because she was “taking care of work for the com-
pany.” (7:1268) Lee implies, I find, that she included that time
in her report of “actual” hours.
At the front end of the quota fills problem the interviewer,
seated at her computer, waits (as the automatic dialer, perhaps
not visible to the interviewer, scrolls through number after
number seeking out one that remains good) until a good num-
ber “drops” onto her computer screen and the automatic dialer
begins calling it. This waiting period frequently would be 5
minutes or much longer. Lee included this time as part of her
actual hours. (6:1213–1216, 1246–1247; 7:1415–1417;
8:1496–1501)
In short, and as she bitterly complained many times at trial,
Lee’s position (largely adopted by the General Counsel) is that
Gallup’s intcheck system is flawed because it does not include
several work items, such as those just mentioned. (6:1215,
1248; 7:1416; 8:1497, for example.) But as already noted dur-
ing the discussion of Janice Rinehart’s case, these complaints
describe conditions of employment imposed by Gallup. Inter-
viewers are free to accept, free to leave, or free to ask a union
for help. They are not free to record matters on their paysheets
as part of actual hours when those matters are not included
within Gallup’s pay plan (RX 4).
That brings us to the falsification issue. During the summary
of Janice Rinehart’s case, I described how the different hourly
teams are paid, and listed an example of the different pay for
members of the different teams who obtained completes on the
same project, with the lower teams making less than the 35-
hour team. This part of Gallup’s pay system not only is basic,
but it is easily understood. Under this system, an interviewer
who pads her actual hours so as to maintain her membership on
the 5-hour team, damages Gallup financially. This is so be-
cause a person who fails to meet her 35 hours (70 hours over
the 2-week pay period) can be bumped to a team that pays less
per complete. (JX 23 at 22, example 2; GCX 34 at 66, opening
paragraph and example 2) In short, any such fraud could cheat
Gallup out of money that it would not have to pay in future
weeks if Gallup elected to bump the interviewer, correctly re-
porting fewer than 35 hours, to a lower team.
In this connection, and bearing on credibility, I find that, as
of the trial, Sherri Lee was well aware of the financial advan-
tage attached to being a member of the 35-hour team. (Indeed,
in addition to the greater pay rate assigned to the team, Lee was
aware that 35-hour team members qualify for participation in
Gallup’s 401(k) and insurance programs. 7:1311–1312) Not-
withstanding Lee’s knowledge on this point, when I (struggling
at the time to understand whether Gallup would suffer anything
more adverse than garbled numbers if Lee submitted incorrect
figures), Lee coyly, I find, suggested to me that Gallup would
not suffer any adverse economic consequence because the in-
terviewers are paid on their completed surveys (true), and not
on their hours (misleading and therefore false). (7:1274–1283)
Thus (7:1278–1279):
JUDGE LINTON: Well, if you had gotten more money
than you were entitled to, that would hurt the company.
THE WITNESS: Yes, sir.
JUDGE LINTON: Now, how does this hurt the company
that you reported more hours, but it doesn’t have anything
to do with the pay?
THE WITNESS: Well, that’s the premise of this case is
we’re saying that it doesn’t hurt the company; that it did
not happen, and they used it only because I was—used that
information because we were trying to form a union. They
wanted to get rid of me. That’s the only reason—basis of
this particular situation.
JUDGE LINTON: All right. Well—
THE WITNESS: That’s why they said I falsified my
time.
JUDGE LINTON: All right. Well, I was trying to find
out—is the company hurt financially aside from the fact
that, well, this messes up their records?
THE WITNESS: No, sir.
JUDGE LINTON: All right. Then the item is messed up
is not the money but their records are different from what
your records that you turned in on hours worked?
THE WITNESS: Yes, sir.
JUDGE LINTON: All right. Well, we’ll see what the
company says. If that’s the same view they have of the
situation.
Moments later (following several questions by the General
Counsel that were not calculated to elicit an answer to my ques-
tion) Gallup’s counsel had a chance to remind me (7:1283) that
on the first day of the trial (5 months earlier) Supervisor Uria-
Ruiz had described (1:47, 87) the adverse economic conse-
quence of lower pay if bumped to a lower-hour team. Rather
quickly after counsel’s statement, and in response to a direct
question (that should have been asked sooner) by the General
Counsel of whether she would earn less money if demoted to
the 25-hour team, Lee answered, “Yes, I would.” (7:1284) I
consider Sherri Lee’s answers to my questions as testimonial
dissembling.
Return now to the tables (GCX 46) that Lee and the General
Counsel prepared based on the intcheck (JX 17). The approach
taken in these tables is to track, on a daily basis for the week in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1282
issue, Lee’s work chronologically rather than by project. Thus,
when at times Lee’s work on, for example, Beth Israel W693,
was interrupted and she had to switch to, say, CSAT F040, and
later that shift return to W693, Lee’s tables follows her course
of work. (See that specific example, GCX 46 at 5.) By con-
trast, the intcheck (JX 17) is arranged by date and then by pro-
ject (account) listed alphabetically by the letter prefix of the
code number for the project. Thus, MCI A909 will be listed
before CSAT’s F040 and Beth Israel’s W693 because the letter
“A” comes before the letters “F” or “W.” And even though
Lee’s first project on a given day may have been Beth Israel (as
on Friday, June 25; GCX 46 at 5), the intcheck puts MCI first
(JX 17 at 17) because “A” comes first, even though Lee worked
MCA last on that shift (GCX 46 at 5).
Because of the difference in sequence, no doubt the Gov-
ernment could find Lee’s tables helpful in understanding things,
or, as phrased by the General Counsel (8:1564), helpful “for
ease of following.” Nevertheless, as I there observed (8:1563–
1564), I will need to follow the steps taken by Gallup. This is
so because, as the issue is Gallup’s motive, I have to take the
same route followed by Gallup in order to determine whether
there is, or is not, something about the route followed that bears
on motive. Thus, if the numbers that Supervisor Geiger arrived
at were proved to be wrong because of the route taken, and the
Government’s route were to result in the correct numbers, the
only relevance the Government’s route would have would be
whether it sheds any light on whether Geiger’s choice of a bad
route was linked to a bad motive.
Accordingly, I find Lee’s tables (GCX 46) of little value here
for two reasons. First, the numbers are skewered because they
are infected with Lee’s (and the General Counsel’s) version of
what Gallup’s pay system should include, rather than what
work Gallup’s pay plan (RX 4) actually pays for. Second, and
as just discussed, I need to follow the investigative steps taken
by Supervisor Geiger.
Turning back to the intcheck (JX 17) for a moment, I note
that the document consists of 27 pages (only about half of the
last page is used), covering the week in issue, with most of the
pages having 57 line items each. About 5 pages cannot be
counted because the line items for the date of Tuesday, June 22,
1999, appear in doublets. A corrected intcheck would occupy
about 22 pages, yielding a rough total of about 1250 line items
for the week. Turn now to Supervisor Geiger’s investigation.
c. Supervisor Geiger’s investigation
(1) The triggering event
(a) Sherri Lee’s comment
The questions are easy. What prompted Supervisor Geiger
to get involved? Was it a call from Nebraska? Was Geiger told
to find any excuse to investigate the hours of Sherri Lee? Was
it a personal vendetta unrelated to the organizing campaign?
Or was it something else, something far less conspiratorial and
much more mundane? The Government’s generalized conten-
tion is that it was pure animus that drove Gallup to pick apart
the hours of both Janice Rinehart and Sherri Lee in an effort to
discredit them and to discharge them. (Br. at 49) As to Lee,
therefore, the General Counsel impliedly argues that whatever
Gallup offers as the prompting event is nothing but a pretext.
For its part, Gallup relies on the testimonial description given
by (former) Supervisor Stephanie Geiger who provides the
details of how she, as someone not Sherri Lee’s immediate
supervisor, came to investigate Lee’s hours for the week of
June 21–27, 1999.
Recall that Janice Rinehart was terminated on Thursday,
June 24. Supervisor Barlow puts the time of Rinehart’s termi-
nation meeting at, roughly, between 3 p.m. and 4 p.m.
(12:2276–2277) On her tables (GCX 46 at 4) Lee shows, as the
fourth “account” treated, a gap “between surveys” of 2 hours 21
minutes between 18:17 to 20:38 (6:17 p.m. to 8:38 p.m.). Re-
minding us that this was the date of Rinehart’s termination, Lee
reports that it was during this 141-minute gap when she (dura-
tion not specified) was “in with the managers trying to find out
why” Rinehart had been terminated. (6:1137–1138)
Supervisor Geiger reports that the triggering event came
about in this manner. On that June 24, but at some point after
Rinehart had been terminated, Geiger was approached by Sherri
Lee just outside Geiger’s office. Lee commented to Geiger that
if the managers were going to be checking records, then they
should check the records of Sarah Lakey and Shari Patty be-
cause they were always walking around and taking breaks.
(14:2705–2706, 2809, 2834) Alerted by Gallup’s counsel (re-
sponding to my question on the cause of the investigation) dur-
ing her cross examination to a generalized version of this con-
tention (8:1518–1520), on redirect examination Lee strongly
denies ever complaining about the reporting of anyone’s hours
at Gallup to any supervisor, and especially as to Supervisor
Geiger. Respecting Geiger, Lee claims that Lee and others had
caught Geiger lying, that they did not trust her, and that she
certainly would not have gone to Supervisor Geiger about this.
(8:1674–1678)
As Gallup stated at trial (8:1520), and the supervisors testi-
fied (2:228–230, Uria-Ruiz; 12:2316, Barlow; 14:2724–2725,
Geiger), Gallup’s practice is to check the records of both the
person accused and the accuser. That is what Geiger did here.
(14:2724–2725; JX 28) Lee’s complaint is the only thing that
caused Geiger to check Lee’s hours. (14:2834, 2892)
At this point I observe that the evidence clearly is consistent
with a complaint having been lodged by Sherri Lee. Lee was at
work that June 24 and she reports that, for some duration of
time between 6:17 and 8:38 that evening, she met with the
managers in an effort to ascertain the basis for Rinehart’s dis-
charge some 2 hours or so earlier. On the other hand, there is
no evidence disputing Lee’s assertion that she had never previ-
ously complained to management that an employee may be
falsely reporting hours worked. Turn now to Geiger’s exami-
nation of the hours worked by Sarah Lakey and Shari Patty on
June 24.
(b) Sarah Lakey
When Geiger came to work the following afternoon (June
25), she pulled up the screen for Lakey’s production sheets.
Reflecting the hours claimed for Lakey’s pay, this screen
showed that Lakey had claimed only 2.6 actual hours for June
24. Geiger then pulled up the intranet screen showing Lakey’s
time and projects that she had worked on June 24, the day on
GALLUP, INC. 1283
which Lee had complained. The intranet screen showed that
Lakey had been logged-on to six projects on June 24 for a total
of 7 hours 57 minutes (7.9 hours). As Geiger testified
(14:2713), the two screens reflect that Lakey took some lengthy
breaks. Geiger did not print out copies of the two screens on
June 25, and did not do so until November 1 on the eve of trial.
Geiger asserts, however, that the data remains on the computer
for many months and that the November printouts (RX 48)
correctly reflect what she observed on June 25. Overruling the
General Counsel’s objection, I received the two-page document
(RX 48) in evidence. Based on these screens (showing more
hours logged than claimed), Geiger saw no need to investigate
further. The General Counsel offered no evidence of any claim
by Lakey of more hours than she was actually logged on. Al-
though Geiger did not look very far, I see no disparity in Gei-
ger’s handling of Lakey’s records.
(c) Shari Patty
The issue as to Shari Patty concerns an apparent 1-hour
shortage in time worked (6.8 hours on VNS) on June 24 com-
pared with the time claimed (7.8 hours; RXs 55, 56) that was
bridged, as described by Supervisor Geiger, by Patty’s having
spent an hour working with Geiger on June 24 helping to re-
solve survey sample issues (client had labeled departments
incorrectly) with the VNS study that Patty had been working
on.43 (14:2718–2719, 2885, 2890) As Geiger concedes
(14:2720–2722, 2891), none of the records mentions this meet-
ing. Geiger testified that, in checking Patty’s records on June
25, she, at that time, remembered the meeting of the day before.
(14:2721)
The General Counsel argues that Geiger simply “concocted a
story that she had an independent recollection, approximately
one year later” for the purpose, the General Counsel implies, of
covering for Patty, while doing extensive “reaching” to investi-
gate active union adherents. (Br. at 48–49) Countering, Gallup
observes that the independent recollection occurred on June 25,
1999, and therefore was not something concocted “one year
later” (that is, when testifying in April 2000). (Reply at 18–20)
Shari Patty did not testify.
So the issue boils down to a credibility resolution. Observ-
ing that Supervisor Geiger is not contradicted by any witness or
record on this point, that her account is plausible and is consis-
tent with the records, that I have credited her in other areas, and
that she testified persuasively here, I credit her account of the
one-hour meeting with Shari Patty on June 24.
(2) The “red flag”
Having run computer checks on June 24 (on Janice Rinehart)
and June 25 (Sarah Lakey and Shari Patty), Supervisor Geiger
reached Sherri Lee on June 26 and started checking her hours
of the previous day, June 25. (14:2725–2726) At this point the
testimonial description of what sequence Geiger followed be-
comes a bit garbled. Geiger’s account could have been more
cohesive had the lawyers asked her to give the sequence rather
than handing her documents and then asking questions about

43 For example, calls were made to male interview respondents ask-
ing how they had enjoyed their stay on the OB/GYN unit in the hospital
maternity department. (14:2719, 2890 Geiger)
the documents. (And no effort was made on cross examination
to obtain the sequence.) Of course, it could well be that, as of
the trial, Geiger no longer could recall in detail the sequence
that she had followed.
In any event, I find that Geiger proceeded as follows. Con-
trary to her elicited version suggesting that she first called up
Gallup’s intranet screen (that was the first document, RX 57,
presented to her in this series, 14:2726), I find that, for her first
step, Geiger called up Lee’s production reports (RX 58) that
would show June 25. For that date, five entries are shown
(14:2733), with three being projects. The first item, a project,
is MCI Residential. (RX 58 at 1) Other records (GCX 18 at 6;
RX 57) show that the project, or study, number is A909.44 The
production report (RX 58) showed that Lee had claimed 2.7
(actual) hours worked for that date on MCI A909. Geiger’s
second step, I find, was to call up Gallup’s intranet. Entries on
the intranet, even though for one date, are not listed in chrono-
logical order. (14:2730) Although we now know that the
intranet screen or screens had several entries for that date for
Lee (14:2730, 2739–2740), it is clear that Geiger (following up
on the first entry on Lee’s production report, RX 58) was look-
ing only for the MCI entry. Finding that entry, Geiger immedi-
ately recognized that she would have to do an intcheck for the
entire week because the logged-on time was only 2.1 hours, or
.6 hour short of the claimed amount. That discrepancy served
as the “red flag” that caused the further investigation with the
intcheck. (14:2732–2733) At that point Geiger did not check
other intranet entries for that date because she knew that she
was going to run an intcheck. (14:2739–2740)
The date of June 26 being a Saturday, and with Gallup’s
week running Mondays through Sundays, and as she was not
eager to start analyzing an intcheck anyway, Geiger decided to
wait until Monday, June 28, to print out an intcheck so that it
would cover the full week. (14:2733–2735) When that Mon-
day arrived, Geiger probably, as step three, printed the intranet
document that we have as RX 57, showing entries for Lee’s
projects, with hand notes in the margin showing the dates for
June 21 through June 27. For some reason that Geiger does not
recall, other than just overlooking the other intranet entries
(14:2729–2730), MCI A909 is the only entry shown for June
25. The data is accumulated for a printout document off the
intranet by copying the entries and then pasting them into a
Microsoft Excel document, and that is what Geiger did to create
RX 57. (14:14:2730, 2738–2739) One possible explanation for
the single entry on RX 57 for June 25 is that Geiger may have
created the document (it bears no date) on that Saturday in or-
der to copy and paste the MCI entry that she was tracking.
(14:2739) When Monday came and Geiger pasted the other
dates on the document, she forgot to copy and paste the other
entries from the intranet for June 25. Regardless of what the
real sequence was, the important document is the intcheck (JX
17) because that is the document, and not the intranet document
(RX 57), on which Lee’s discharge is based. (14:2740, Geiger)

44 Because Geiger was searching via the computer, it is highly
unlikely that she first, or even second, pulled Lee’s original paysheet
(GCX 18 at 6) because that is a paper record. Moreover, Lee’s pay-
sheet lists the two other studies before MCI A909.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1284
Before turning to the intcheck, I take us on a short diversion.
I will make it short because no party raised the question at trial
or on brief. The question is whether Geiger’s procedure here is
consistent with that which she followed in Shari Patty’s case. I
find the short answer to be yes. Patty was logged-on (telephone
time) for 6.3 hours on the VNS project as shown by the intranet
printout (RX 55 at 2). That would be .5 hour short of the 6.8
hour claimed on VNS. This gap did not raise a “red flag” for
Geiger because, as she explains, Geiger assumes the addition of
.1 hour per hour worked on the project as the allowed grace
period for breaks. That would take Patty’s time on the project
over the 6.8 hours claimed. (14:2885–2886)
But that addition would not help Lee here because Lee’s
logged-on time for the MCI A909 project barely exceeded 2
hours, meaning the addition of no more than .2 hour for breaks.
Even if the .2 were added, that would bring the logged-on total
to just 2.3 hours, still .4 hour short of the claimed time. When
the gap exceeds .1 hour, Geiger considers that to be “signifi-
cant.” Anything over the .1 hour is, in effect, a “red flag” that
triggers further investigation. (14:2887–2888) The only re-
maining question is whether Lee could, in effect, borrow time
from other projects that day, or whether the determination is
made on a project basis. Although the record contains a lot of
testimony about the grace time for breaks, some of it is general-
ized. In any event, Supervisor Geiger testified that the time is
figured on a project basis. (13:2537–2538; 14:2777, 2783,
2903) I find no disparity as to this matter.
(3) Supervisor Geiger’s chart
At step four Geiger ran an intcheck (JX 17) for the week of
June 21. (14:2731, 2734, 2739) As mentioned, this was
printed on Monday, June 28. (14:2735) Using the intcheck (JX
17) to compare with the actual hours claimed by Lee in her
paysheets (GCX 18) for the Week of June 21, Geiger, as she
did in Janice Rinehart’s case, prepared a one-page handwritten
chart (RX 59) showing the date, project, actual hours claimed,
and the hours that Geiger would allow. (14:2741–2742) As I
did in Rinehart’s case, I now reproduce, in the same modified
format that I used earlier, the chart (RX 59) that Geiger pre-
pared to show the results of her study of Sherri Lee’s hours.
None of Geiger’s figures are changed, but I have added addi-
tional data. Note, however, that some of the logged-on times
were not given at trial. I have supplied numbers, the ones
marked by an asterisk, based either on my own computation or
on the fact that Supervisor Geiger made no deduction. As to
the latter, at trial Gallup simply moved on to the next project
without having Geiger calculate the logged-on hours. With this
explanation, I display Supervisor Geiger’s enhanced chart (RX
59):
Date Project Actual
Hours
Claimed
Hours
Logged-
on
Geiger
Allows
June ‘99
Geiger
Allows
at Trial
June 21 MCI
A894
1.5 1.3 1.1 1.0
MCI
A895
1.2 1.3* 1.3 1.3
CSAT
F040
1.0 1.0* 1.0 1.0
Isuzu
R528
.7 .7* .7 .7
Totals 4.4 4.3* 4.1 4.0
June 22 MCI
A909
2.5 3.2 2.1 2.1
CSAT
F040
3.5 3 8 3.1 3.0
Totals 6.0 7.0 5.2 5.1
June 23 MCI
A909
3.1 3.0 2.6 2.3
Beth
Is.
W693
2.1 6.2 1.5 1.1
Totals 5.2 8.2 4.1 3.4
June 24 MCI
A909
1.1 1.2* 1.2 1.2
CSAT
F040
1.3 1.2 1.1 .8
Beth
Is.
W693
1.1 1.1 1.0 1.0
Totals 3.5 3.5* 3.3 3.0
June 25 MCI
A909
2.7 3.2 2.1 2.0
Beth
Is.
W693
3.2 7.0 2.4 1.9
CSAT
F040
2.2 4.6 2.0 1.3
Totals 8.1 14.8 6.5 5.2
June 26 MCI
A909
.2 .1* .0 .0
CSAT
F040
2.0 2.0* 2.0 2.0
Isuzu
R528
2.9 2.9 2.7 2.5
Beth
Is.
W693
.8 6.1 .5 .6
Totals 5.9 11.1* 3.2 5.1
June 27 Beth
Is.
W693
2.3 2.2 2.1 2.0
Totals
For
Week
35.4 51.1* 30.5 27.8
As a note, it is undisputed that Lee also had 3.5 hours of
buddy time for the week. (GCX 18) For our purposes here, the
3.5 hours buddy time is not relevant because buddy time, al-
though added to actual hours, is not computed as is actual hours
because it is straight time paid at the team hourly rate. Also,
GALLUP, INC. 1285
while buddy time is considered in determining whether the
interviewer completed the required 35 hours per week for the
35-hour team, for example, the issue here is whether Lee falsi-
fied her hours, not whether she worked enough hours to remain
on the 35-hour team.
(4) Supervisor Geiger’s adjustments
As an initial point, recall from the earlier “Overview” that at
trial I alerted the General Counsel I would need, in the decision
process, to follow the documentary path taken by Supervisor
Geiger. After all, as I there observed, Geiger did not have be-
fore her the Lee-Gant tables (GCX 46) that were prepared after
the discharge. (8:1563–1564) Despite that alert, on brief the
General Counsel provides no review of the intcheck45 (JX 17)
used by Geiger and no analysis of a single adjustment made by
Geiger. Instead, relying globally on the Lee-Gant tables (GCX
46; a document I have found to be of little value, in part be-
cause it is infected with the false assumptions by Lee and the
Government as to what constitutes compensable work items),
and on Lee’s annotated copy (GCX 47) of her paysheets (an-
other document that Geiger did not have before her), the Gen-
eral Counsel simply argues (Br. at 46) that Lee had some 38
hours or so of actual hours for the week. In any event (Br. at
50), Lee’s hours are within the 5-hour grace period allowed for
discrepancies with an intcheck, and therefore Lee “should have
suffered nothing more than a warning.” By simply citing the
Lee-Gant tables, without showing on brief how they are not
infected with the viruses that I have mentioned, much less of-
fering a critique of the intcheck times and Supervisor Geiger’s
adjustments based on some of those times, the General Counsel
has simply abandoned the field of battle.
Turn now to Supervisor Geiger’s adjustments—44 by my
count. Recall from my discussions, in Janice Rinehart’s case,
under “Preliminary terms and considerations” and under Super-
visor Geiger’s “interpretations,” that knowledge and experience
are basic to Supervisor Geiger’s review and analysis. However,
while some of the analysis can rely on objective factors, a large
component of the analysis consists of Geiger’s subjective as-
sessment (based on her knowledge and experience) of each line
item that she examined. Even if there were no union involved
here, and this were a kind of arbitration, or an audit by some
standards committee of the polling industry, there would be a
problem with the standard to be applied as to each line item
category—such as completes, specific callbacks, and any cate-
gory of calls where Sherri Lee, or any interviewer, speaks with
someone at the number called. Who is to say how long each
call should take? Gallup, of course, but has Gallup ever done
so?
Assume for the moment that both Sherri Lee and Supervisor
Geiger are in good faith about one of the completed calls.
Sherri Lee may tell us that the call took 30 minutes. As Lee no
doubt is the intelligent and articulate person that she appears to
be, she could well sound convincing. But just as convincing,
and just as intelligent and articulate (without all the talk), would

45 Other than to criticize the intcheck as not including several work
tasks and as being inadequate for the purpose of ascertaining why a
given call might consume more time than average for the category.
(Brief at 41–42)
be Supervisor Geiger who might tell us that the typical time for
a complete on that study is 10 minutes. Each could be in good
faith because, as Geiger acknowledges in Rinehart’s case
(13:2612), there can be some long-winded survey participants.
As I mention in summarizing Janice Rinehart’s case, in Gei-
ger’s experience such surveys are “few and far between,” and
after “a certain point” the interviewer simply must end the call.
(13:2613) Perhaps we should keep in mind, however, that in
her days as an interviewer, Geiger apparently was a high
achiever. This is so for she tells us that it was a bad day for her
when she attained no more than the day’s quota on her projects.
(13:2545) Such a superior background might well foster ele-
vated expectations of others, particularly in the first months of
Geiger’s experience as a supervisor.
And if that were not enough, add to Geiger’s superior abili-
ties a bit of self-assuredness to help Geiger set the standards
and expectations to which she might hold interviewers. That
combination could translate into a real difference when Super-
visor Geiger evaluates the numbers. What we need is an inde-
pendent check of some kind. As Gallup apparently does not
exercise direct visual observation, or monitoring, as part of an
investigation, we have to look elsewhere. MCI’s call records
serve in that capacity to the extent that they were subpoenaed
and offered as evidence. Turn now to see what these records of
MCI tell us about a few of the calls made by Sherri Lee and
about some of the deductions that Geiger made.
(5) Sample deductions
Start with the first project for that Monday, June 21,1999,
that being MCI International A894. (GCX 18 at 1; RX 57; JX
17 at 1) This call reflects some of the central differences be-
tween the parties in Sherri Lee’s case. The intcheck (JX 17 at 1
line 1) shows that Lee’s first call ended at 15:37 (3:37 p.m.)
and took 250 seconds (4 minutes 10 seconds, or 4.2 minutes)
for a non-specific callback. In this category of call, the person
answering, either soon or late, indicates a willingness to do the
survey at a later time or date, but without setting a specific
time. The length of the call varies, Lee asserts, with the person
reached, and can be affected by such factors as whether a child
answers the telephone initially, whether there is a language
problem, and by other factors. (7:1435–1437)
Recall that the intcheck does not show the start of a call, or
when the screen goes up. That is supplied by the process of
moving from the call on the line before (when the interviewer is
in the middle of a project). When it is between projects, we (or
the witness) find the close of the last project. If it is an inter-
ruption of a project, then the time showing the closest match is
found where the interviewer pulled out to work on a different
project before returning. We are lucky here because A894 was
a short project of 54 line items, all on the first page of JX 17,
and showing an ending time of 16:57, or 4:57 p.m. Thus, the
intcheck shows that the study was “up” for 1 hour 20 minutes,
or stated differently, that Lee was logged on for 1.3 hours.
(14:2744, Geiger) Lee disagrees.
Although Lee agrees that her work that day on the study
ended at 4:57 p.m., because that is the exact time she took off
the computer and wrote in her notes (7:1419; GCX 47 at 1), she
disagrees with the starting time. According to her notes, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1286
starting time, which she would take from the computer screen,
was 3:28 p.m. (15:28), or 9 minutes earlier than the completion
time of the first call (screen “up” for 250 seconds) shown on
the intcheck. (6:1195, 6:1212–1213, 1215; 7:1416–1417) Dur-
ing the first part of that 9 minutes (before the number dropped
and she began her 250-second non-specific callback), Lee spent
nearly 5 minutes sitting in front of her computer monitor, wear-
ing her headset, and waiting for the computer to reach someone
so that she could talk to the person. (6:1213–1214; 7:1417) As
to these first 5 minutes of waiting on this first call, Lee makes it
very clear that she counted that as part of the time that she
claimed as actual hours. Thus, by Mr. Shultz on voir dire
(6:1214):
Q. And you consider that actual time worked?
A. If I’m sitting with the headphone on my ears wait-
ing on someone to speak to me with a number, I — what
else could you call it, sir?
Q. And do you get paid for that time?
A. Not according to [Joint] Exhibit 17. I’m not up
moving around the room. I’m not up talking to anyone.
I’m sitting at my desk trying to work, and I’m not getting
any surveys. I certainly would consider that time worked.
Moments later Lee reaffirms that she would include in her
claim of actual hours any time that she would be sitting in front
of her computer, wearing her headphone, and waiting to talk to
a survey participant. (6:1216) But as we saw much earlier in
the summary of Gallup’s pay plan (RX 4), Gallup does not
count such time waiting, even while wearing a headphone, as
time eligible for time claimed as actual hours. Only “dialing
time” is eligible for a claim of actual hours under Gallup’s pay
system. Employees who do not like this part of Gallup’s pay
system are not at liberty to exercise self help to “amend”
Gallup’s pay system on their own initiative.
As Lee’s time for this project was 1 hour 29 minutes (3:28
p.m. to 4:57 p.m.), she claimed 1.5 hours for her time and sub-
mitted her claim for that on her paysheet for the date. (GCX 18
at 1; GCX 47 at 1; 6:1195; 7:1420)
But Supervisor Geiger, figuring the logged-on time as begin-
ning with the completion time, of the 250-second call, of 15:37
to the study’s end at 16:57, or 1 hour 20 minutes, allowed only
1.3 hours as the logged-on time. (14:2744) Now why did Gei-
ger allow zero time for the 4 minutes 10 seconds (250 seconds)
that the screen was “up” on this non-specific callback? The
answer is that Geiger gave no credit on the basis it would take
no more than a minute to do a non-specific callback. (14:2744,
2894) Because a single minute would be wiped out by the
process of rounding to the nearest tenth of an hour, Geiger
would simply start Lee’s logged-on time at the 3:37 completion
time of the first call—the one for 250 seconds. (14:2743–2744)
As the nearest tenth for the call of just over 4 minutes is .1 hour
(6 minutes), this 250-second call is an example of how Geiger,
at least at the trial, strictly applied her own standards of effi-
ciency. By not allowing the full 4 minutes that the screen was
up, Geiger in effect made her first deduction, even though she
declined to call it an adjustment, when she refused to back up
the starting time for the project by the 250-second duration of
the time that the screen was up. This failure reduced Lee’s
logged-on time by .1 hour. When that .1 hour deduction is
added to the .1 hour extra time that Lee added at the beginning,
we see how, as between Lee and Geiger, they have a difference
on the logged-on time of .2 hour. Recall that the logged-on
time is important, because that (and not the time claimed) is the
span of time to which Geiger makes her adjustments (additions
or subtractions).
Perhaps Geiger would have done it differently had her inves-
tigation included a face-to-face meeting with Sherri Lee. Lee
would have showed Geiger her personal copy of the paysheet
(GCX 47 at 1), containing her personal notations of the starting
and ending times as given to her by the computer, and that
documentation possibly would have persuaded Geiger that Lee
in fact was sitting at the computer ready to work for the first 5
minutes and that Lee quite likely did spend the full 4 minutes
on the non-specific callback. Gallup, however, apparently pre-
fers computers to people for its investigations. This ties to the
ultimate question, which is, what was Geiger’s motive, or
Gallup’s motive, for declining to recognize that this call could
well have lasted the 4 minutes that the screen was up. Beyond
the 1 minute that Geiger would allow, the remaining 3 minutes
would be a bit short for any kind of break. But then, where is
the disparity evidence showing that Gallup, or particularly Gei-
ger, normally is nowhere near this strict?
Then again, perhaps Geiger would not have been swayed by
Lee’s personal notes. Aside from the call in issue, there are
five other non-specific callbacks on the study that day. (JX 17
at 1) The average time for the five calls is (Envelope, please):
62.4 seconds. When rounded to the nearest tenth of an hour,
per Gallup’s practice, the average time is exactly one minute!
Before we jump to any conclusion that Stephanie Geiger is
prescient, recognize that Geiger had the intcheck before her and
doubtlessly saw these other five and computed their average
time. That, plus her own knowledge and experience, resulted in
her hard-nosed stand. Perhaps she would have been swayed by
a personal interview with Lee, but again, perhaps not. As it is,
by following Gallup’s practice of investigation by computer, it
would seem rather a stretch to call Geiger’s allowance of only
one minute to be unreasonable. Indeed, based on these num-
bers, her allowance of a single minute (rounded to zero) seems
close to reasonable.
At first glance, one might consider it a bit troubling that Gei-
ger makes no allowance whatsoever for one of those calls that
runs up the average time in most every category. “Average”
means that some calls will take longer than others, as she con-
cedes in relation to completes. (14:2892–2893). When the
cross examination came to this point respecting non-specific
callbacks, Geiger explained (14:2894):
A. Well, usually if they’re telling you that they don’t
have time to do the survey, they wouldn’t sit there and talk
to you afterwards.
Even though Geiger also concedes that no one knows “with
certainty” how long any given callback will take, she still
makes it clear that her estimate for non-specific callbacks is one
minute. (14:2894) The cross examination did not specifically
explore why Geiger did not allow the 250-second call as one of
those that, on occasion, will go beyond the average time—
GALLUP, INC. 1287
especially since there were five other non-specific callbacks
here that, as a group, made the average time. At this point, I
simply note that Supervisor Geiger, apparently guided by her
experience plus the average time of the other five calls by Lee
in this category on that study for that day, adhered to her opin-
ion that one minute would be enough. Strict, perhaps, but a
stretch to call Geiger’s tenacity unreasonable and therefore
suggesting another motive. Finally, remember that Gallup does
not recognize, as part of actual hours, the first 5 minutes (before
the 250-second call) when Sherri Lee was sitting before her
computer waiting for a number to drop.
Move now to Geiger’s deduction number 2 (my count)46—
that being the first line item on Gallup’s convenience summary
(RX 66; 15:3030–3032) for the analysis of nine of Lee’s calls.
By Geiger’s count this is her first “adjustment.” The affected
line item for deduction number 2 appears on page 1 of the
intcheck (JX 17) at line 30, showing there a gap (from line 29
to line 30) of 31 minutes from 16:06 to 16:37, with the screen
up for 1872 seconds (31.2 minutes), for a “complete.” This
complete came on the same MCI International A894 that the
250-second call did that I was just discussing. At trial Geiger
first asserted that she allowed Lee 20 minutes for completed
surveys on this study, “And it’s not a 20-minute survey.”
(14:2745) Geiger then corrects herself to say that she allowed
Lee 13 minutes for this call and, stating that 31 minutes was
excessive for the completed survey, made a deduction of .3
hour, or 18 minutes. (14:2745–2746) This call displays the
very core of the major—very major—dispute between the par-
ties on what really is happening on those calls that exceed, by a
significant amount of time, the typical time screen “up” time
for specific categories of calls. On this complete Gallup con-
siders the extra time excessive and Sherri Lee and the Govern-
ment consider it simply as time worked on a tough interview.
Recall from Janice Rinehart’s case that when a call ends and
is disconnected, the screen stays up a few seconds so that the
interviewer can copy her case ID number for the complete.
Thus, Janice Rinehart copied her case ID numbers onto her
copy of her paysheets, as we saw with GCX 16. The point is,
once the case ID number issues, the computer clock (after the
screen remains up a few seconds for copying the ID number)
stops counting the seconds and the call, as far as Gallup is con-
cerned, has terminated. But if the interviewer delays asking for
a case ID number, and instead takes a break, then the screen
remains “up” and the clock running, even though MCI’s re-
cords will show that the telephone connection ended several
minutes earlier.
The cross-examination (by attorney Shultz) of Sherri Lee
was as follows on the topic of whether the time on this call was
excessive (7:1422–1424, emphasis added):47
A. That 1800 minutes [seconds]—a lot of times it de-
pends on where you were in the study. If you had to drag
someone through the study, if you had to listen to chit-chat
in order to do this study or abuse to do this study—it de-
pended on whether you were making any money. That—

46 All the deduction numbers that I use are by my count of 44 for the
number of adjustments made by Supervisor Geiger.
47 With further references at 7:1433–1434 and 8:1516.
trying to make money or trying to pay your bills. There
were a lot of factors why you would stay on the phone
with someone long past the rate that you were getting paid.
. . . .
Q. Why, if you were trying to pay your bills, would
you stay on it longer? [In other words, the question asks,
why not cut your losses and move on to the next call that
might yield quicker results.]
A. Because if I had electricity that was due at the end
of the month or next week, then I’m going to talk to God-
zilla in order to get a survey done. If he was abusive to
me, if I could cajole him and get the survey so if it meant
that I’d be on the phone 30 minutes or two hours or what-
ever it was to get that survey completed, that’s what I did.
It was all based on financial need at this point.
Q. [Counsel Shultz next inquires whether it is Lee’s
contention that this complete took 1872 seconds when Lee
obtained another complete on line 3, same study, in 746
seconds (12.4 minutes).]
A. [Lee answers yes, observing that it happened and
that not all survey respondents are alike, and that she
wishes she could do all surveys in 2 or 3 minutes.]
Q. Well, you’d have to agree with me, would you not,
that that 1,800 is a long survey?
A. Would I agree? Extremely long, and if I did that
survey at that minute, it was extremely long and hard on
me.
Q. If you completed the survey but kept the screen up,
would the time continue to run?
A. It probably would, but I never did that. I knew oth-
ers that did do that, but I did not.
JUDGE LINTON: What would be the purpose in doing
that?
THE WITNESS: The purpose of it is not to get any case
ID numbers so you could go to the bathroom, so you could
take a break or whatever, and so you wouldn’t lose any
time. That would be the purpose. That was something
that I never did. I resent the implication. It’s called falsi-
fying your time is what it’s called.
MCI’s records (RX 61, first line item) tell us this for the call.
From the start of dialing at 16:06:49 (6 minutes 49 seconds
after 4 p.m.), to the answer pick up at 16:07:00, plus 18 minutes
43 seconds to the termination of the connection (at 16:25:43),
there was a total “dialing” time or “phone” time (Gallup termi-
nology) of 1134 seconds (18.9 minutes or .3 hour). As the
screen was up 1872 seconds (31.2 minutes, or .5 hour), this
means that, following the termination of the 18.9-minute call,
Lee’s screen was “up” for an additional 12.3 minutes (1872-
1134=738÷60=12.3) until, at 16:37 (4:37 p.m.), she asked for a
case ID number and the computer then terminated the call.
Gallup contends (Br. at 98) that the MCI record demonstrates
that, contrary to her protestation that she would not so falsify
her time records, Sherri Lee did exactly that on this call.
At trial Geiger’s difference with Lee was .5 hour in that Lee
claimed 1.5 hours for her work on the project and Geiger, mak-
ing two adjustments (the first, by my count, reducing the
logged-on time at the start of the project by .2 hour, and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1288
second, by my count, being the just described .3 hour deduc-
tion) totaling .5 hour, thereby allowing actual time of only 1.0
hour. (14:2746) But Geiger was a little more strict, by .1 hour,
at trial than she was in June 1999 when she allowed 1.1 actual
hours. (14:2747; RX 59) The MCI record also shows that
Supervisor Geiger was closer to correct on her initial allowance
(14:2745) of 20 minutes (.3 hour) for the call, and making a
deduction of .2 hour (14:2746). Thus, a .3 hour allowance for
the call, as Geiger made initially at trial, hits the .3 hour bull-
seye displayed on the MCI record (RX 61) It therefore appears,
and I find, that Geiger’s initial allowance at trial of 20 minutes,
or .3 hour, is what really happened in June 1999, for the initial
trial deduction of .2 hour from the logged-on time of 1.3 hours
would yield the figure of 1.1 hours (RX 59) that Supervisor
Geiger allowed as actual hours for Lee’s June 21 work on the
project.
So what conclusions are to be drawn respecting this second
item? Vindicated in her June 1999 assessment by the MCI
record, Supervisor Geiger, I find, made a reasonable deduction
of .2 hour that June. The other factor, rather than a conclusion,
is that I will tend to give stronger consideration to Supervisor
Geiger’s assessments of the time that it takes for the categories
of calls—to the extent that it can be determined that such as-
sessments were made in June 1999. (But it will be troubling if
she never allows for an infrequent occurrence of a long-winded
person who answers the telephone.) By endeavoring to be
stricter at trial in her estimates, Geiger may well have overex-
tended herself.
For the third and fourth examples, take the second and fourth
items on Gallup’s convenience summary (RX 66). These are
two more non-specific callbacks. By Gallup’s computer, the
first one lasted (that is, it remained on the computer screen) 630
seconds, or 10.5 minutes—.2 hour. (JX 17 at 14 line 23) The
study is MCI A909 on Wednesday, June 23, and is Geiger’s
adjustment number 16. The second one (adjustment 19) lasted
536 seconds, or 8.9 minutes—.1 hour. (JX 17 at 15 line 57)
Only the second one appears on Lee’s tables (GCX 46 at 3),
and there Lee counts all 9 minutes as actual work time. From
her analysis in preparing her chart (RX 59), Supervisor Geiger
deducted .1 hour (6 minutes) as to both adjustment 16
(14:2774) and adjustment 19 (14:2789–2790).
On cross-examination (which first covered adjustment 19—
line 57), Lee confirms her testimony that the call took all 536
seconds. Then (8:1511):
Q. Why would that take so long?
A. And as I mentioned before and as I’ll say again, it
depends on the respondent. Some respondents don’t take
any time in order to reach them or to get to another party,
to speak to that individual, to convince them to allow you
to call back, or the situations varied. So in this particular
situation, the amount of time that I spent on that call was
to set up a callback at another time; maybe have talked to
a child to get through to an adult. And so, yes. I agree
that this nine minutes was not unusual for that particular
number.
At that point the questions move to whether it would be Lee
who would be the person calling back. After explaining that, at
that late date in the month, she was struggling to make “any
amount of money” and therefore would talk with anyone who
appeared to be even the possibility of a survey (a “complete”),
Lee describes her practice (as we saw in the general description
in Janice Rinehart’s case) of making a note of such telephone
numbers and then calling them back manually. In this respect,
Lee would “bank” the number to call back herself even though,
as the number went back into the pool, she had no guarantee
that someone else might not call the number first. (8:1511–
1514) Eventually, Lee again confirms that she claimed all 9
minutes as work done for the reasons that she just explained.
(8:1521)
Before directing Lee to the 630-second call at line 23 (Gei-
ger’s adjustment 16), Gallup’s counsel asked (8:1522) Lee to
confirm the length of the other five non-specific callbacks (not
counting the two long ones in issue here) shown for that day on
MCI A909. (JX 17 at 14–15) The average time for the five is
50 seconds, with the longest being 62 seconds (not the 50 sec-
onds appearing in Lee’s answer at 8:1522). That exchange
carried to the next question about the 630-second non-specific
callback. Lee again states that the time required depends on
who answers the telephone. (8:1522–1523)
As perhaps could have been anticipated, at trial Gallup had
an ace in the hole as to each call. Thus, MCI’s record (RX 61,
second line item) reflects that the total “phone time” (dialing
plus the connection time) for the 10-minute gap at line 23 lasted
just 51 seconds. This tells us that the number remained on
Lee’s computer screen for 9.7 minutes (.2 hour) after the tele-
phone connection terminated. (630–51=579÷60=9.65=9.7)
Addressing the category of “no answer,” Lee at one point
suggests that, after she enters her code for the call, if the screen
remains up it is because there is a “flaw in the system.”
(8:1517) Without further development of this possible conten-
tion (one not advanced by the Government at trial or on brief),
and in light of Lee’s failure to address MCI’s records during
her testimony at the rebuttal stage (16:3136–3166), I shall give
no weight to this hint of a possible contention. In any event,
Lee did not expressly tie it to non-specific callbacks.
Respecting the 9-minute gap at line 57, MCI’s record reflects
that the entire call, from dialing to termination, lasted a mere 27
seconds. (RX 61, fourth line item) Thus, the number appar-
ently remained on Lee’s computer screen for an additional 8.5
minutes (.1 hour under Gallup’s system of rounding), after the
telephone connection was terminated. (536–27=509 seconds
÷60=8.48=8.5) Not only does Lee not address, at rebuttal,
these “hole-card” aces of Gallup, the General Counsel on brief
simply asserts that, in addition to the MCI record’s not being
available for the discharge decision, the MCI record would
cause only 1 hour of time to be deducted from Lee’s total of
38.4 hours for the week, thereby leaving Lee liable for, at most,
a warning. (Brief at 46) There is a twofold problem with the
Government’s argument.
First, the 38.4 figure is based on the defective count of hours
compiled by Lee and the General Counsel, and second, even
though the record was not available for the discharge, it clearly
serves to support Supervisor Geiger’s analysis of the time in-
volved. An important byproduct of the latter factor is that Gei-
ger’s credibility receives a boost.
GALLUP, INC. 1289
I shall move past most of the remaining entries on Gallup’s
convenience summary. (The fifth, sixth, and ninth items are
not among those for which Supervisor Geiger made adjust-
ments.) The eighth entry, a category for “Spanish interviewer
wanted,” JX 17 at 24 line 90, adjustment 41 by my count, ap-
pears at first glance to support Lee. On this call, not listed on
Lee’s tables (GCX 46 at 6), there is a 13-minute gap at lines
89-90, from 13:46 to 13:59, for a 770-second call (13.2 min-
utes) coded as “Spanish interviewer wanted.” (JX 17 at 24 line
90) At trial Lee refused to concede that this call did not require
all this time. Lee defended the time on the basis that many
factors are involved on such a call, such as a language problem
that was not seen as substantial until after several minutes of
efforts. Moreover, this study was Isuzu R528, and for this
study anyone in the household 21 years of age or older, as a
potential purchaser of an automobile within the next 2 years,
was eligible to do the survey. (8:1632–1634, Lee) MCI’s re-
cord reflects that the call, from dialing to disconnect, lasted 12
minutes 44 seconds, or 720 seconds—12.7 minutes—6 seconds
shy of what Gallup’s computer recorded.
Despite MCI’s record corroborating the duration of the call,
Supervisor Geiger would make a deduction of .2 hour (wiping
out any credit for the call because of Gallup’s rounding proc-
ess) on the basis that the interviewer can determine win the first
minute whether English is spoken. If English is not spoken, the
interviewer is to terminate the call and code it for a “Spanish
interviewer wanted.” If the interviewer attempts a survey, she
does so “at your own risk kind of thing.” (14:2828–2830, Gei-
ger) In short, what Geiger is saying is that the interviewers are
to avoid wasting time, and that, in Geiger’s opinion, Lee wasted
about 12 minutes here.
Conclusion. Poor Sherri Lee—even when the MCI record
corroborates that she was working hard for Gallup, she still gets
penalized. But the issue is not whether you or I would deduct
the .2 hour from her logged-on time, but whether Gallup was
prompted to do so, in moving part, by unlawful considerations
based on Lee’s union activities. Resolving that question re-
mains for later.
Turn now to an overview of some of the remaining deduc-
tions, particularly the no-dispute categories “Answering ma-
chine” and “No answer.” As to most of these (and excluding
those that begin a survey, where the issue is complicated by
that position), there seems to be very little difference. There
are a handful of calls coded “answering machine” where Su-
pervisor Geiger deducted anywhere from .1 hour to .7 hour.
(JX 17 at 10 line 175, a 5-minute gap on CSAT F040 on June
22 (adjustment 5) is an example of the former (14:2752, Gei-
ger), and number 36, a 39-minute gap, JX 17 at 18 line 40, MCI
A909 on June 25, is the latter; 14:2819) As to most of these,
there is little difference. Thus, respecting the two examples,
Lee assigns only a minute to the first example (my number 5),
and deducts 3 minutes from a stated 4-minute gap (GCX 46 at
2), and subtracts all 39 minutes of the latter (GCX 46 at 6) be-
cause she acknowledges that, during nearly all the gap, she, in
effect, took a break (6:1163–1164; 8:1618–1619) The half
dozen or so calls coded “no answer” (not associated with major
breaks for changing studies, or as the first call of a study) show
a similar history.
The significance of a comparison of these categories is sim-
ply this—the parties (as I suggested much earlier) are traveling
in parallel universes. The Government is located in the GCX
46 (Lee’s tables) universe, and Gallup is in the RX 59 (Geiger’s
analysis chart) universe. In the Government’s universe, the
General Counsel and Sherri Lee have attempted to account for
all the time by removing gaps when she was not working. But
there are two problems with the Government’s universe. One,
Sherri Lee’s concept (adopted by the Government) of “actual
hours” includes several items (such as 5 minutes for start up
whenever Lee begins the day and every time she switches to a
different study during her shift; 6:1086–1087, 1122) that are
outside Gallup’s pay system. As Lee herself observes (6:1191–
1192; 7:1276), Gallup has a modified piece-rate system. Aside
from the pay for the pieces (the “completes”), a team’s hourly
rate, based on “actual hours,” is a factor. As summarized ear-
lier, only “phone time” is counted as part of “actual hours.”
Thus, breaks are expressly excluded from “actual hours” in
the training manual. (JX 23 at 24) Instead, a grace allowance
of .1 hour (6 minutes) is applied by management when deter-
mining whether an interviewer, whose hours are short of those
claimed per an intcheck, should be disciplined. One of the
perks of membership in the 35-hour team is that the members
are accorded an enhanced grace allowance of 5 hours per week.
Underscoring the reality that the 5-hour period is not a break
allowance is the concept that the grace period is really a disci-
plinary zone—landing in it, particularly toward the end, can
subject an interviewer to discipline, normally just a warning.
This “concept” is substantially blurred in the record. That is
not surprising because Gallup seeks to define the .1 hour grace
allowance in two inconsistent ways. First, it is a vacuum period
for all non-dialing activities, including smoke breaks, restroom
breaks, handling quota fills, and the whole list. Second, it is a
disciplinary zone. In short, interviewers are free to use it for all
non-dialing activities, but if they use what their supervisor con-
siders as too much, then they subject themselves to possible
discipline.
In any event, by adding 10 minutes per hour for breaks to her
tables (GCX 46; 6:1087–1088), Sherri Lee potentially increases
the amount of time that Gallup allows for the grace period.
Thus, if the actual hours claimed are 30, that would be 300
minutes or 5 hours for breaks. That would match the grace
allowance for the 35 hour team. But if the interviewer claimed
35 actual hours, then 350 minutes would be over 5.8 hours,
thereby exceeding by nearly an hour the extra grace allowance
even for the 35-hour team. Also, as summarized earlier, Sherri
Lee faults Gallup’s intcheck system for not including various
work activities (such as handling quota fills). It is clear that
Lee included the time she devoted to at least some of these
work activities in her report of actual hours. As we also have
seen, Lee’s concept of what should be counted as actual hours,
such as sitting at her computer monitor waiting for a number to
drop, is incorporated into her tables (GCX 46). In short, by
feeding improper data into her tables, that exhibit (GCX 46) is
substantially unreliable.
The second problem with the Government’s universe is re-
lated to the first. By simply submitting and relying on its own
(and Lee’s) concept of hours (GCX 46), the Government fails
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1290
to invade Gallup’s universe and to attack the methodology fol-
lowed by Supervisor Geiger in compiling her chart (RX 59) that
reflects the results of her analysis of the intcheck (JX 17) cover-
ing Sherri Lee’s work for the week of June 21 through June 27,
1999. By that strategic decision to stay out of Gallup’s universe,
the Government has forfeited any chance it had of uncovering
whatever deficiencies there might be in the 44 “adjustments”
(subtractions) that Geiger made respecting Sherri Lee’s logged-
on time.
(6) Methodology questions
(a) The 5-hour grace allowance
Whatever the correct figure is for Sherri Lee’s hour for the
week, there is no dispute that, as is shown on Supervisor Geiger’s
chart (RX 59), the number claimed (excluding buddy time) of
35.4 hours, and the number, 30.5, found by Supervisor Geiger to
be correct, are not too far apart. (Far closer than, for example, the
gap in Janice Rinehart’s case.) Therefore, if Geiger’s methodol-
ogy was infected by a substantial error, or by a small error re-
peated across many of Geiger’s 44 adjustments, such a defect, if
tied to an unlawful motive, could be very important. Other than
stating “despite the admission of numerous items of documentary
evidence directed at demonstrating that she [Lee] misreported her
hours” (Br. at 50), the General Counsel does not pause to critique
any of the 44 “adjustments” made by Supervisor Geiger that led
to the actual hours, reflected on RX 59, that she allowed Sherri
Lee. Moreover, the Government makes no complaint about Gei-
ger’s methodology or her arithmetic. When the Government
does not complain about any aspect of a manager’s methodology,
or arithmetic, it is not the obligation of an ALJ to sift through the
record trying to find that which the Government does not com-
plain about.
Nevertheless, I briefly will address a couple of items. First, it
might be asked whether the 30.5 hours that Geiger allowed as
actual hours for the week (RX 59) includes the 5-hour grace al-
lowance. At trial the General Counsel appears to contend, well
before Supervisor Geiger testified, that Gallup’s numbers did not
include an allowance for the “breaks,” and that if such allowance
were added, the numbers of both parties would be essentially the
same. (7:1466–1467) Indeed, at that point (7:1468) we took a
short recess to see whether the parties could reach an agreement
on the numbers. Unfortunately, the effort was unsuccessful, and
we continued through all the arithmetic. Geiger’s testimony
perhaps persuaded the General Counsel that Geiger included
breaks in her figures.
On brief (Br. at 92), Gallup asserts that Geiger’s chart (RX 59)
does include the break allowance of .1 hour per hour [which is
less than the 5-hour grace period enjoyed by members of the 35-
hour team], citing to Geiger’s testimony at 14:2826. Geiger did
so testify. (14:2825–2826, 2830, 2843–2847) However, some of
her description indicates that, instead of finding the “pure” time
and then adding back the .1 hour per hour (5 hours for the week),
Geiger added it as she went along by not subtracting for a “ten-
minute gap here, a six-minute gap there.” (14:2825) Except on
occasion, these grace allowances are not specifically marked in
the record. Thus, it is difficult to verify Geiger’s testimony as to
this. In Janice Rinehart’s case, Geiger’s foregoing description
clearly applies, for there, as she testified, Geiger focused on the
major gaps, generally those exceeding 10 minutes.
But Geiger gave no such testimony respecting Sherri Lee.
And certainly at trial Geiger frequently shaved the time rather
close as to Lee. Indeed, at several points Geiger indicated, either
expressly or by her figures, that she was being more restrictive
than she was in June 1999. (For example, 14:2747, 2758, 2768–
2769, 2791, 2800, 2807–2808, 2815, 2821, 2830, 2845) Unfor-
tunately, at trial Geiger was not asked to report, as she went
through the intcheck, which of the smaller 6 to 10-minute gaps
that she had bypassed in June as part of her process of, in effect,
building in a break allowance as she proceeded. On cross exam-
ining Geiger, the Government touched on the 5-hour grace al-
lowance generally, particularly in reference to discipline
(14:2865–2866), but the General Counsel did not focus on Gei-
ger’s assertions that her charted 30.5 hours for Sherri Lee in-
cluded the 5-hour grace allowance.
The fact is, when we look at Geiger’s chart (RX 59), we can-
not tell by looking whether either the claimed column, 35.4
hours, or the allowed actual column, 30.5 hours, does or does not
include time for “breaks.” From Lee’s testimony at trial, we
know that Lee asserts that she included break time of 10 minutes
per hour some of the time, assertedly not claiming all in order to
make sure she could not be charged with falsifying her time.
(7:1396) Lee either would not, or could not, be specific, testify-
ing, “Some days I did. Some days I did not.” (7:1385, 1400,
1402) Nor did she record on her personal copy of her paysheets
(GCX 47) what days she added the breaks, and by what amounts.
(7:1400–1401) Indeed, recall that Lee recorded on her personal
copy (GCX 47) the actual minutes, as shown on the computer
screen, for each of the studies that she did. She apparently did
not include any breaktime because the computer screen would
not show that. From the small numbers that she wrote on GCX
47 (some cannot easily be read because she wrote over them, in a
heavy mark, to show the number of hours claimed for each pro-
ject), it would appear that, at least as to most of the days, she did
not add any time for breaks. As the heavy numbers (for hours
claimed) are the ones that she transferred to the original pay-
sheets that she turned in (GCX 18), it would seem that the “some
days” that she added time for breaks may have come in weeks
different from the one in issue.
But even if we, with some hesitation, were to conclude that the
35.4 hours claimed (GCX 18; RX 59) did not include time for
breaks (or if so, it was minimal), Supervisor Geiger does not tell
us whether she considered that the claimed 35.4 hours did, or did
not, include time for breaks. The relevance of this line of thought
is this. Presumably Geiger would want to compare apples with
apples. If Geiger thought that the claimed 35.4 hours did not
include breaks (and since the claim is not supposed to include
breaks, then one would assume that Geiger would proceed on the
basis that the 35.4 hours did not include breaks), then presumably
Geiger would record her own column, for allowed actual, as not
including breaks. On the other hand, if Geiger made break al-
lowances as she proceeded, 10 minutes here, 6 minutes there,
then her allowance of 30.5 hours would include some time for
breaks—more than the 5 hours permitted, by her testimony.
But wait. Try a different approach. From the 30.5 hours that
Geiger allowed in June, subtract 5 hours. That gives the total of
GALLUP, INC. 1291
25.5 hours—rather lower than the restrictive 27.8 hours that Gei-
ger reached at trial. Reverse direction. To Geiger’s total allowed
at trial of 27.8 actual hours, add the 5-hour grace allowance.
That yields a new total of 32.8 hours. One would think that if
Geiger’s 30.5 hours did include the 5 hours of grace, then sub-
tracting the 5 grace hours would produce the same number that
Geiger reached at trial. Or, one would suppose that adding the 5
grace hours to the 27.8 would equal the 30.5. As we see, such
thinking would be wrong. Suppose, however, that instead of
using the grace figure of 5 hours, Geiger used the standard grace
allowance of .1 hour per actual hour. From the trial figure of 28
hours (27.8 rounded to 28), multiply by 6 minutes. That equals
168 minutes, or 2.8 hours. Adding 2.8 hours, as the grace allow-
ance, to 27.8 hours equals 30.6 hours—almost a perfect match
with the 30.5 hours that Supervisor Geiger reached in June 1999.
Go further. Add the 2.2 hours difference (5 hours less 2.8 hours
plus 2.2 hours equals 5 hours) to Geiger’s June 1999 count of
30.5 hours. That yields a total of 32.7 actual hours. Closer than
before to the claimed 35.4, but still 2.7 hours beyond the grace
allowance of 5 hours.
Consider this calculation. The General Counsel (Br. at 46),
apparently describing Lee’s tables (GCX 46), states that, after
stripping out all breaks, the actual hours left are 33.4. Then this
(Br. at 46): “Approximately 30 of those [33.4] hours were dial-
ing hours.” But “dialing hours” is a synonym that the managers
use for “actual hours.” Thus, if the 5-hour grace time were added
to the 30 dialing hours, that would yield a figure of 35 hours, still
leaving an overclaim of .4 hour (24 minutes). Perhaps Geiger
would have exercised some supervisory discretion and simply
recommended that Supervisor Davenport, Lee’s immediate su-
pervisor, just issue a warning. The problem with this calculation
is that it is not linked to the analysis and calculations made by
Supervisor Geiger.
While all these calculations are interesting, the real problem is
that whatever Geiger did cannot be verified at this point because
this part of her procedure was not litigated at trial. Thus, even if
Geiger gave breaks with one hand in June 1999, she took at least
some of them away with the other hand by her restrictive ap-
proach (more generous than at trial, but nevertheless more restric-
tive than the time claimed by Sherri Lee) to the time that she
would allow on the various call categories. Again, however, the
question is not fairness by someone’s perception. The question is
whether Geiger’s approach was based on an unlawful motivation.
In this respect, recall that the MCI record (RX 61), although con-
taining only a limited number of calls, rather dramatically sup-
ports Supervisor Geiger on some of those calls.
(b) Backing up the start time
A second item for discussion is this. To counter a complaint
by Lee that the intcheck cheats by not showing the starting time
of a call, Gallup asserts (Br. at 84–85) that Supervisor Geiger’s
entire analysis [presumably the June 1999 version] “included
backing up her computation to include the actual start time
(14:2743–2845, Geiger).” Gallup’s assertion generally is not
so.48 This particular dispute apparently refers to the process of
computing the logged-on time, the time that the study is “up.”
Recall that the supervisor, Geiger in this case, makes her adjust-
ments (subtractions) from the logged-on time, not from the time
claimed. For that reason, the logged-on time is very important.
Because the study “up” time is very important, the method for
computing the “up” time becomes determinative of an important
matter. What would spark dispute at the trial (generally more
during the cross examination of Lee than during Geiger’s testi-
mony) would be Gallup’s tendency, at least at times, to compute
the start time from the completion time of the opening call to the
ending time of the last call. (No dispute about the ending time.)
Although this matter is more emotional than material, I shall
address it as briefly as possible. Otherwise the matter could pro-
ceed on to higher levels without receiving any attention here.
As Supervisor Geiger’s June 1999 chart (RX 59) reflects, she
studied 19 projects from the intcheck (JX 17) involved here. A
review of the opening calls for these 19 projects shows that most
such calls (15 in number) were not subject to being backed up
because they averaged only 32.5 seconds in duration. These are,
for example, the 30-second calls that produce the coded entry
“Answering machine” or “No answer.” A “Busy” is even
shorter, such as one (CSAT F040 on June 24) for 10 seconds
(14:2796–2797), and another, the last call (Beth Israel on June
27), being for a mere 8 seconds (14:2836) Even the longest of
this batch took only 78 seconds, a “Second refusal” on June 21
on the Isuzu R528 project. (Not the “Aces” project as rendered
on the transcript at 14:2747:13).
The remaining four opening calls are more controversial.
Three of the four perhaps can be summed up in this fashion.
They are fairly short calls of around 4 minutes—long enough to
receive a .1 hour (6 minutes) in the rounding process, except for
one thing. The one thing is that Supervisor Geiger is of the opin-
ion that such items as callbacks, specific and nonspecific, should
not take more than a minute. By disallowing everything over a
minute, each call is dropped back into the no-adjustment zone
and the start time for the study begins with the call’s completion
time. (The completion time is used because that is what appears
on the intcheck. If the intcheck were designed so as to show the
start time, rather than the completion time (the later could be
figured by converting the seconds that are shown, as is done now
to find the beginning of the call), it probably would be Gallup
feeling the squeeze from the rounding process (many short calls
would be rounded to the start time) rather than the employees
being the ones squeezed).
These three calls are: One, the very first call, the 250-second
(4.2 minutes) “Non-specific callback” for MCI A894 on June 21
(discussed earlier in the section for sample deductions). (JX 17 at
1 line 1) Geiger made it clear that she also would have used the
completion time, because of the rounding process, in June 1999.
(14:2744) Two, the 198 second (3.3 minutes) “Specific call-
back” coming on June 25 in Beth Israel W693. (JX 17 at 20 line
1) Completion time, 13:04, used. (14:2802–2803. Three, same
for the 210-second (3.5 minutes) “Specific callback” in MCI

48 In the cited 103 pp. of Geiger’s direct testimony on the 19 pro-
jects, Geiger at no point asserts that she backed up the start time as to
all opening calls.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1292
A909 on June 26. (JX 17 at 21 line 1—a single call) “I did not
give her credit for the one phone call.” (14:2831, Geiger)
Finally, for the fourth of the longer opening calls, a 17-minute
(1024 seconds; 17.1 minutes) “Complete.” (JX 17 at 17 line 1)
Because completed surveys on this study take about that much
time, Geiger testified, she backed up the start of the call the full
time, adjusting the start time by .3 hour, or 18 minutes.
(14:2816–2818) With this clarification of the matter, it is time to
turn to the next topic.
(d) The Government’s prima facie case
(1) Primary theory
The Government’s primary theory for a prima facie case ap-
pears to be that the asserted “trigger,” the claim (based on the
testimony of Supervisor Geiger) that Sherri Lee complained
about two other employees (Sarah Lakey and Shari Patty), is
“patently false.” (Br. at 50) In short, this principal theory of the
Government depends on obtaining a finding that Stephanie Gei-
ger testified falsely in her claim that Sherri Lee had suggested
that management should check the hours of Lakey and Patty.
Lee flatly denies. As Geiger has no corroborating witnesses, this
is a swearing match between Geiger and Lee, with the Govern-
ment, of course, having the burden of persuasion.
Apparently in support of the Government’s “patently false”
argument, the General Counsel (Br. at 49-50) argues that (1)
Gallup was unhappy with Lee’s union activities; (2) no evi-
denced that anyone else’s hours have been so scrutinized, and (3)
the “red flags” as to others were open and obvious. The first item
has no support in any of the 8(a)(1) findings I have made. Thus,
no threat or other unlawful statement was directed to or about
Sherri Lee. The second ground appears to be mostly inaccurate.
For example, in October 1998 Supervisor Uria-Ruiz ran an
intcheck on Vanessa Villareal to check her hours, and then fired
Villareal when she admitted at least the facts. Thus, there was no
occasion for as much detail there as we have here. In February
1999 Supervisor Barlow terminated Jack Burroughs, a high pro-
ducer, for falsifying his hours. Barlow’s methodology was very
similar to that used here after he saw a “red flag” on Burroughs’
paysheet (high number of hours compare to a low number of
dials). As supervisors have used intchecks in the past to check
hours and to discharge employees, I find no merit to this ground.
Respecting the third ground, no similar “red flag” incident,
that is correct insofar as the exhibits are concerned. Thus, al-
though the supervisors describe a past practice of checking the
hours of any accuser along with the accused, no supporting
documentation was offered. Still, the claimed practice is cer-
tainly logical (if for no other reason than to preserve morale).
Crediting the supervisors as to this, I find that such a practice
preexisted Sherri Lee’s discharge.
Return now to the face-off between Supervisor Geiger and
Sherri Lee. In several areas I have found Geiger to be credible
(although I generally do not credit her in the case of Lynne
Zieler). Moreover, respecting Geiger’s description of the time
estimates that she had made, she dramatically is corroborated by
the MCI record (RX 61) concerning her adjustment number 2
concerning the 31-minute call shown on the intcheck. Supervisor
Geiger generally made a good impression as a witness in the
cases of both Janice Rinehart and Sherri Lee.
By contrast, Sherri Lee generally made a less than favorable
impression. Although she appears to be intelligent and articulate,
as a witness Lee was verbose and tended to argue with Gallup’s
lawyer. Even though I recognize that the passage of time was
lengthy, I still give some weight to the fact that Lee had no sav-
ing explanation for the 31-minute call (Geiger’s adjustment num-
ber 2) that was exposed by the MCI record (RX 61) as only a 19-
minute call. As for Lee’s September 1999 EEOC charge (RX 33,
race, sex, age, retaliation), as I did with Lynne Zieler, I find as a
negative Lee’s initial testimony, on cross-examination, that she
thought her union activities were the “sole” reason for her dis-
charge. (7:1303–1305) Later she corrected that to include the
grounds of her EEOC charge. (7:1305–1307; 8:1667–1668) I
consider the switch to be a negative factor in the matter of credi-
bility. The need to correct that point suggests that the witness,
even if unconsciously, tends to recall in a manner selected to
support her felt needs at the moment. Zieler’s overall credibility
was sound, but Lee’s, as I have mentioned, was a bit unfavorable.
In light of the foregoing findings crediting Supervisor Geiger
as to the triggering event, I find no merit to the Government’s
primary theory that Sherri Lee’s asserted complaint about two
other interviewers is a fabrication. I need not determine whether,
as Supervisor Geiger asserts (14:2808–2811, 2850) and Sherri
Lee denies (16:3164–3166), that, following the discharge of
Janice Rinehart, Lee uttered a threat against, in particular, Super-
visor Geiger that Geiger overheard.
(2) Alternative theory
For an alternative theory, the Government argues disparity re-
specting Lisa Miller and Russell Lund. (Br. at 50) Recall that
the Lisa Miller matter is discussed in Janice Rinehart’s case un-
der the heading, “Supervisor Geiger checks others.” I found no
discrepancy there, when Supervisor Geiger did not follow a po-
tential discrepancy on one track, because Geiger was not investi-
gating that track. Because the General Counsel failed to show
that Geiger deviated from her normal practice (that she normally
follows all potential discrepancies, no matter that they are outside
the area she set out to investigate, yet did not do so here), I found
no disparity. If the Lisa Miller matter has some arguable rele-
vance to Janice Rinehart’s case, it has practically none as to
Sherri Lee’s.
Respecting Russell Lund, recall that he is the person whose
paysheet Payroll Coordinator Mike Cota failed to cover ade-
quately. Beverly Robinson and Catherine Wagley, speaking with
Cota, observed Lund’s name on the paysheet. Cota had just told
the two that the person (Lund) had submitted a paysheet claiming
8 hours when he had worked only 4 hours. Lund is still em-
ployed. When discussing the Government’s prima facie case
respecting Janice Rinehart, I found that the Russell Lund matter,
which ostensibly showing disparity, was only one of several
factors the combination of which established a prima facie case.
With all other mentioned factors found not applicable, or oth-
erwise lacking in merit, the Russell Lund matter—an isolated
incident when compared with several other discharges, including
those of Vanessa Villareal and Jack Burroughs—would not,
standing alone, establish a prima facie case before the NLRB. (If
this were a Civil Rights case, perhaps so, for all the plaintiff need
do there is to show enough to cast on the defendant the burden of
GALLUP, INC. 1293
producing evidence as to a valid reason, not the burden of per-
suasion as to an affirmative defense such as we have in NLRB
practice. Procedure before the NLRB in an unfair labor practice
trial is essentially the same as that which prevails in any contract
or tort suit in a state or federal district court. That is, the General
Counsel leads off and fires everything the Government has. If
the Government’s barrage is strong enough to establish its burden
of persuasion on the unfair labor practices alleged, and thereby
avoid a motion to dismiss, then the Respondent (who can elect to
rest and seek to win on appeal) proceeds and must establish its
affirmative defense by a preponderance of the evidence. Strict
rebuttal and surrebuttal follow. The Government retains the
overall burden of persuasion to establish the unfair labor prac-
tices alleged. Thus, and contrary to the suggestion in some re-
ported decisions of one or more federal circuit courts, unfair
labor practice trials before the NLRB do not employ the three-
step procedure of some Civil Rights cases. Stated differently,
dances before the NLRB are the Texas Two Step, not the Civil
Rights Three Step.)
Based on the foregoing, I find that the Government failed to
establish, prima facie (that is, persuading by a preponderance of
the credible evidence), that a moving reason for Gallup’s dis-
charge of Sherri Lee was her activities on behalf of the Union.
Even if it were determined that the Government carried its bur-
den, contrary to my finding, I still would find no violation of the
Act on the ground that Gallup carried its own burden of demon-
strating that, regardless of any union finding, it would have dis-
charged Sherri Lee for falsification of her paysheets in any event.
Accordingly, I shall dismiss complaint paragraph 25 as to Sherri
Lee.
5. Patrick C. Snyder
a. Introduction
Recall that Patrick Snyder was fired on August 6, 1999. Ad-
mitting the fact but denying liability, Gallup affirmatively pleads
that Snyder “was terminated for making offensive comments to a
co-worker of a sexual nature and would have been terminated for
this event and prior events based upon their cumulative effect by
the Respondent even if he was not involved in union activities.”
There is no dispute that Snyder was very active in the union
organizing activities. Hired in November 1994, Snyder worked
as an interviewer until his discharge. (4:677–678, Snyder) Sny-
der’s quality evaluations (GCX 9) averaged 49.82 out of a possi-
ble 50. (1:64, 136, Uria-Ruiz) While at Gallup, Snyder received
many awards (GCX 35), including “Interviewer of the Year” for
Houston North for 1998–199 (GCX 35 at 1). So far as the record
shows, until the summer of 1999 Snyder had never had any dis-
ciplinary problems at Gallup. Indeed, at Houston he was known
as, “The Chosen One.” (4:730) But beginning the evening of
CEO Clifton’s May 26 speech to the assembled Houston em-
ployees, Dame Fortune began frowning when she looked upon
Snyder, for the first and second (Snyder asserts that the second
never occurred) of the three incidents leading to Snyder’s dis-
charge assertedly occurred the evening that May 26.
Incidents One and Two, both involving Supervisor Stephanie
Geiger, occurred that evening following CEO Clifton’s speech.
Agreeing that the first incident (although disagreeing with much
of Gallup’s version) and verbal warning (issued by Supervisor
Doug Barlow) happened that May 26 (4:717, 723), Snyder insists
(4:733–734) that incident Number Two is a complete fabrication.
Incident Number Three, an “event” on August 4, triggered
Snyder’s August 6 discharge. On Snyder’s termination notice
(RX 44), the incident is described as “offensive comments of the
[a] sexual nature.” (12:2266, Barlow) Present at Snyder’s termi-
nation were Supervisors Douglas Barlow and Chad Murray and
Interviewer Patrick Snyder. Barlow conducted the termination
meeting. (4:730–731, 736, Snyder; 12:2263, Barlow) Barlow
filled out the “Comments” portion of the termination notice
(12:2261, 2268–2269), the text of which reads (RX 44):
Based on 2 previous incidences [incidents] that happened on
May 26th 1999, 1) Disruption of workplace, 2) Insubordi-
nation of supervisor, In addition to the incident on Aug. 4th
of offensive comments of the [a] sexual nature, Patrick Sny-
der is terminated.
At the bottom right of the termination notice, Snyder (12:2261,
Barlow) printed, signed, and dated (top and bottom) the follow-
ing note (RX 44):
There was no warning verbal or otherwise given by Stepha-
nie to me on Aug. 4th. It is a complete fabrication. The
charges of sexual harassment are deliberately exaggerated.
This termination is motivated by my continuing union orga-
nizing activities, and is illegal.
Snyder can be excused, in the context of his termination, for
dating the second incident as having occurred on August 4. (Au-
gust 4 is when the complaint was made about Snyder’s com-
ments “of a sexual nature.”) The second incident assertedly oc-
curred the evening of May 26. Incidents Two and Three (one
denied and the other disputed) I describe in some detail below.
Incident One I do not describe in detail, as I need not resolve
what happened, because there seems to be no dispute that, about
8 p.m. by Mission Control and just outside the break room (RX
38), Supervisor Barlow reacted to a loud altercation between
interviewers Snyder and Therron Hume by calling both into his
office. Present in Barlow’s office were, besides Barlow, Super-
visor Jason Becerra, Hume, Snyder, and Glen Lambert who at-
tended on behalf of Snyder, and Supervisor Geiger whom Barlow
called in to hear her version of one point. Barlow let Snyder and
then Hume each give his version of the altercation. Agreement is
near unanimous that, following the reports by Snyder and by
Hume, Supervisor Barlow stated that he was giving each a verbal
warning. (Only Lambert recalls that no verbal warning was
given. 3:543) There is a dispute whether Barlow added that any
further disturbance would result in termination, and I address that
later. The complaint does not attack the verbal warning issued by
Supervisor Barlow concerning incident Number One. Supervisor
Becerra is no longer employed with Gallup, having departed in
early October 1999. (1:38–39, Uria-Ruiz)
There is no evidence that Gallup has an employee handbook
containing rules of conduct and the penalties for violations. So
far as the record reflects, to the extent that employees are made
aware of whatever disciplinary rules Gallup imposes or follows,
those rules are reproduced in the Training Manual’s Appendix
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1294
A—“Workplace Policies and Agreements”49 (JX 23 at 61–74)
But these are just major policies, such as for no harassment, fam-
ily and medical leave, an alcohol and drug abuse policy, and a
policy covering use of the computers. Appendix A contains
nothing about a prohibition of or penalty for such mundane
things as spitting on the floor or even poor attendance. Supervi-
sor Uria-Ruiz mentions a rule against “Disturbing the work-
place,” but it is not clear from her testimony whether she is de-
scribing one of a set of written rules, or simply a tradition or
practice. (1:133–134) Thus, when Gallup terminated Snyder for
an asserted third incident of disturbing the workplace, the number
of incidents may or may not fit some disciplinary schedule that
exists somewhere outside the record.
b. Overview
Respecting Snyder, the General Counsel contends that Gallup
“concocted his second warning out of whole cloth and grossly
exaggerated the subject of his third warning, an innocuous com-
ment made concerning pajamas at a pajama party sponsored at
work by Respondent.” (Br. at 40, 51) Expanding as to the latter
point, the General Counsel argues (Br. at 37):
Respondent’s attempt to justify the discharge of Snyder for
the innocuous comment made to Tristan Lucario on August
4, 1999 is patently absurd in view of the widespread sexual
innuendo generally omnipresent in the Gallup workplace.
This included the virtual invitation for employees to engage
in sexual banter which was inherent in holding a workplace
pajama party. Thus, Respondent cannot be heard to com-
plain when comments are made concerning pajamas at a
company-sponsored pajama party. Indeed, such comments
were to be expected and were part of the intended “fun” of
the occasion (TR 731). [4:731, Snyder] Failure to join the
fun and participate actively at Gallup implied that one was
not a “team player” (TR 731).
Gallup argues that Snyder’s assertion that the second incident
never happened should be subjected to “strict scrutiny” because it
is the uncorroborated testimony of a witness with an economic
interest in winning the case. (Reply at 33) I strictly scrutinize
the testimony of all witnesses, and I apply the law that imposes
on the Government, as the party having the burden of persuasion
on establishing unlawful motivation, to carry that burden by a
preponderance of the credible evidence. As for an economic
interest, Gallup is not a disinterested party in that regard, and its
supervisors have the economic interest of their jobs to ponder as
they contemplate their testimony. Even former supervisors, such
as Stephanie Geiger, have the double interest of, one, remaining
in the good graces of their former employer (Gallup, here) for the
purpose of obtaining good references for future employment,
and, two, the desire (both from natural desire and for professional
reputation purposes related to employment prospects) to see their
judgments and actions as a former supervisor found to be proper.

49 At one time the title for Appendix A may have been “Legal
Agreements,” as appears in the Table of Contents (JX 23 at 4), and in a
separate exhibit of that name (GCX 34). The latter also has a trade
secret agreement and a payroll agreement, and is in the format of policy
forms that employees, especially new employees (4:688), sign. But
nothing expressly covers insubordination.
In short, in these unfair labor practice trials before the NLRB, it
is rare to have a witness who is a truly disinterested bystander.
Gallup’s argument about that the no corroborating witness fac-
tor requires “strict scrutiny” appears to be closely related to the
contention that one witness opposed by several should always
lose. The Board has disposed of that argument as follows:
Moreover, a greater number of witnesses on one side of an
issue is not controlling. It is the weight of the credible evi-
dence, not the numerical superiority of witnesses, which is
controlling. Sahara Coal Co. v. Fitts, 39 F.3d 781, 782–783
(7th Cir. 1994); Riley-Beaird, 259 NLRB 1339, 1367 fn.
115 (1982). The rationale of the two cited cases would also
apply to an argument that witness “A” should be disbelieved
when he or she is opposed by different (but single) wit-
nesses on separate incidents.
Parts Depot, Inc., 332 NLRB 670, 703 (2000). (In Riley-
Beaird, five managers were arrayed against a solitary welder in a
5 on 1 contest. The welder was credited.) I interpret the forego-
ing principle to include the concept that a witness with an eco-
nomic interest in the outcome of the case who gives uncorrobo-
rated testimony will have the lack of corroboration considered as
a factor in the process of resolving credibility, but that such wit-
ness is under no credibility taint simply because he or she has no
witnesses or other evidence to corroborate his or her testimony.
Any other rule removes the demeanor factor from the process of
resolving credibility. Thus, in theory, and perhaps it would be in
a rare case, a single witness, with an economic interest in the
outcome of the case, but with no corroborating witness or other
evidence, could be so persuasive against an array of opposing
witnesses, that the demeanor factor would persuade the trier of
fact. Thus, consider the following quotation from Parts Depot,
Inc., id.:
In resolving credibility in favor of Vivian Fortin, who testi-
fied with apparent sincerity, against her opposing witnesses,
including the articulate Peter Bassett, I am reminded of the
description of demeanor which Justice Henry Lamm deliv-
ered nearly 90 years ago. Writing for the Missouri Supreme
Court, Justice Lamm rendered a description of unequaled
perception and eloquence: 11
We well know there are things of pith that cannot be pre-
served in or shown by the written page of a bill of excep-
tions. Truth does not always stalk boldly forth naked,
but modest withal, in a printed abstract in a court of last
resort. She oft hides in nooks and crannies visible only
to the mind’s eye of the judge who tries the case. To
him appears the furtive glance, the blush of conscious
shame, the hesitation, the sincere or the flippant or sneer-
ing tone, the beat, the calmness, the yawn, the sigh, the
candor or lack of it, the scant or full realization of the so-
lemnity of an oath, the carriage and mien. The brazen
face of the liar, the glibness of the schooled witness in
reciting a lesson, or the itching overeagerness of the
swift witness, as well as honest face of the truthful one,
are alone seen by him. In short, one witness may give
testimony that reads in print, here, as if falling from the
lips of an angel of light, and yet not a soul who heard it,
GALLUP, INC. 1295
nisi, believed a word of it; and another witness may tes-
tify so that it reads brokenly and obscurely in print, and
yet there was that about the witness that carried convic-
tion of truth to every soul who heard him testify.
_____________________
11 Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118, 1120–1121
(1908).
Moreover, why should a discharged employee, alone of all the
parties in the land, be singled out to carry some additional credi-
bility burden? No such taint is attached to parties in a personal or
commercial damage or contract suit in State or Federal district
court even though they may not have corroborating witnesses.
Parties there are not required to come to court wearing sandwich
boards bearing the legend “Greedy Plaintiff” or “Evil Defen-
dant.” Consequently, and particularly since the statute imposes
no such burden, I impose no sandwich-board burden here either
on the discharged employees or on Gallup simply because they
have an economic interest in the outcome of the case. Instead,
under the statute, I strictly scrutinize the testimony of every wit-
ness. Of course, the lack of a corroborating witness is a factor to
be considered in weighing credibility. But it is not the determin-
ing factor. Nevertheless, I so scrutinize, not because some rule
requires that I do so, but simply because that process, rather than
anything less, helps lead me to more comfortable credibility reso-
lutions. When The Congress assembled hath constitu-tionally
established the legal burden, let no judge put asunder.
As for the third incident, Gallup observes (Reply at 34) that all
the Government’s posturing does not change the fact that the
triggering incident arose, not from any action by a supervisor, but
from coworker Tristan Lucario’s complaint about remarks made
to her by Snyder. Testifying nearly a year after the incident,
Lucario had reached the advanced age of 19 as of the trial.
(15:3103) Thus, as of the incident with Snyder, Lucario was all
of 18. (12:2264, Barlow)
Notwithstanding her youth, Lucario showed more wisdom on
August 4, 1999, than Gallup’s Houston management, for on that
date she came to work in street clothes rather than in pajamas,50
thereby prompting comments not only from Snyder (himself in
street clothes) but, in more aggravated form, from one David
Brown.
Actually, the “event” (12:2263, Barlow) was a Gallup-
sponsored pajama contest, or “Pajama Jama,” for the stated pur-
pose, per the announcement (GCX 36), to help put surveys “to
rest in style.” And (GCX 36):
We will have prizes for the most surveys put to rest and for
the ones who did so in the best style.
At the bottom of the announcement, employees were cau-
tioned, “Please, Tasteful pajamas only.” The “tasteful” caution
underscores what a mature management, exercising common
sense in light of all the sexually provocative photographs permit-
ted to be posted in various cubicles (GCX 26, for example),
would have recognized immediately—such a “pajama jama” was
adolescent, unwise, unprofessional, and calculated to generate

50 A testimonial not only to her own maturity and good sense, but a
reflection of fine rearing by parents of sound judgment, high moral
principles, and good character.
incidents that some employees would consider sexual harass-
ment. Moreover, such a company-sponsored event was likely to
impose on at least some employees the very offensive working
environment that is contrary to the standards required of every-
one in Gallup’s non-harassment policy statement (JX 1 at 1; JX
23 at 65), and in its sexual harassment policy statement (JX 23 at
68; GCX 34 at internal 65), for avoiding conduct that creates “an
offensive work environment.” Finally, a mature management
would see that corporate sponsorship of such an event would
serve only to compromise the company, and cripple its credibil-
ity, if it later were faced with the prospect of having to invoke its
anti-harassment policies against employees who might them-
selves act immaturely in an environment of bedroom attire in the
workplace. Enforcing its rules then, from its compromised posi-
tion, would only open the company to the criticism of corporate
hypocrisy. Perhaps CEO Clifton will send down a plaque for
each Houston manager to post on the wall of his or her office,
with a legend reading (as somewhat modified by me, with apolo-
gies to St. Paul):
When I was a child I would speak as a child, think as a
child, reason as a child; when I became an adult, I put aside
adolescent behavior. [1 Cor. 13:11.]
Nevertheless, the question here is not whether Gallup com-
promised itself (it did), or whether its discharge of Patrick Snyder
was tinged with hypocrisy (it was), but whether, in terminating
Snyder, Gallup was motivated (in moving part) by animus
against him because of his strong and open support of the Union.
Turn now to the incidents.
c. The asserted three incidents
(1) Number One—May 26, 1999
(a) “Real” supervisor
Although I need not describe all the details of the confronta-
tion between Therron Hume and Patrick Snyder, I am satisfied
that, in general, Hume was the aggressor as Snyder (and also
Glen Lambert, 3:504–505, 540) reports. I also credit Snyder that,
when Snyder moved over to the Mission Control desk in an effort
to obtain the protective intervention of Supervisor Geiger, Geiger
did not intervene and, instead, sat there with “a bemused smile on
her face.” (4:718)
There is relevance in how this incident began. I credit Super-
visor Geiger that, as Snyder approached the breakroom (the Mis-
sion Control desk is just outside the entrance to the breakroom;
RX 38; 2:345, Uria-Ruiz), she was asking Hume whether he was
leaving, and Hume said he did not know. Geiger intended to ask
Hume to get them some dinner. (13:2684, Geiger) Hume and
Geiger are social friends. (12:2451, Hume) At that point, over-
hearing Geiger ask someone if he were going to leave, Snyder
admittedly interrupted their conversation assertedly to ask Geiger
whether there had been a change in policy, allowing employees
to go home. Snyder does not believe that he spoke in a “snide”
tone. (4:717) Geiger reports that Snyder asked whether Gallup
had made any new policies about employees leaving. She replied
no. Geiger tells us that Snyder’s question had a sarcastic tone.
She reports that Hume then approached Snyder in the break area
(apparently they met at about the entrance) and told Snyder that
he had been rude to Geiger and needed to apologize to her. As
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1296
the confrontation progressed, Snyder said that they needed to get
a supervisor.
Hume replied, “Stephanie is a supervisor.” To this Snyder re-
marked, “We need to get a real supervisor,” emphasizing the
word “real” in a sarcastic and hostile tone as he said it. (13:2685,
Geiger) Hume reports that Snyder asked a question about leav-
ing early or (Hume offers alternative versions) stated, “I hope
there’s no extra overrides being given.” (Recall the mention in
Janice Rinehart’s case that overrides are a formal procedure by
which a supervisor has some discretion in excusing a shortage in
reaching the required team hours.) Hume then reports that Gei-
ger told Hume that lately she had been receiving a lot of rude
tones such as that from some of the employees. Consequently, as
Snyder exited the breakroom, Hume confronted him in “a very
mild tone.” (12:2451–2452, Hume) During the ensuing confron-
tation, Snyder remarked that they needed a “real” supervisor.
(12:2453, 2459, Hume)
In one of his pretrial affidavits (RX 18 at 1, dated August 16),
Snyder concedes that, while he does not recall ever telling Geiger
that he wanted to talk to a “real” manager, it is “possible” that he
had said it. (4:753) This point becomes part of the credibility
mix. Thus, on cross-examination, after reading the foregoing
statement from his affidavit, Snyder asserts that, on reflection and
now with better recall (testifying some 3 months later on No-
vember 19), he never made the statement. (4:754) Gallup con-
fuses the issue when citing the quote from Snyder’s affidavit, by
not differentiating the occasion. (Br. at 112 fn. 19) In this con-
nection, it is relevant to note for context that the paragraph im-
mediately preceding the paragraph expressing the concession of
possibility reads (RX 18 at 1 lines 3–5):
On May 26, 1999, I had a confrontation with Therron
Hume. I was given a verbal warning for that incident from
Doug Barlow. I went home immediately after getting the
verbal warning. I had no further contact with Stephanie
Geiger that day.
I find that Snyder’s pretrial concession of possibility refers to
incident Number One, not incident Number Two. Not believing
Snyder’s “better” memory at trial, and crediting Hume on this
point, I find that, in the confrontation when Snyder exited the
break room, Snyder did make the attributed remark about a real
supervisor (emphasis in original).
(b) The disciplinary meeting
Respecting the disciplinary meeting that followed, there is a
dispute concerning whether it was reported to Supervisor Barlow
that Snyder had made his “real” supervisor remark. According to
Supervisor Geiger, she did so report (13:2686), although she does
not include it in her August 6 report (JX 21b) of the incident.
Snyder (4:723) and Glen Lambert (3:542) each asserts that the
item was not mentioned. Hume does not mention it as coming up
in the meeting with Supervisor Barlow, and in fact, he reports
(12:2460), he was so focused on Snyder that he does not recall
whether Geiger was present. For his part, Barlow also denies that
the topic was mentioned in the meeting. (12:2250) I find that it
was not mentioned.
Before leaving the disciplinary meeting in Supervisor Bar-
low’s office, I need to resolve one other point. There is a dispute
as to whether, in decreeing verbal warnings to both Hume and to
Snyder, Barlow added that any repetition of their conduct would
result in their termination. While conceding that, at one point,
Barlow said that disrupting the office could be grounds for termi-
nation, Snyder denies that Barlow put it in terms of a warning of
discharge for any repetition. (4:735) Lambert does not address
this item because he recalls no warning at all (3:543), while Bar-
low (12:2249) and Hume (12:2456) assert the positive. Supervi-
sor Geiger does not include the capital punishment aspect when
she mentions the warnings at trial (13:2687), although she does
so in her August 6 written report (JX 21b) of the incident. The
General Counsel contends (Brief at 37) that Geiger’s written
report of August 6 (the month, written as a numeral, is a strike-
over, with one number apparently being a “7” and the other an
“8”) was “concocted as an afterthought” to shore up the allega-
tions against Snyder of sexual harassment. If Supervisor Barlow
prepared any report of the meeting that he held with Snyder and
the others, and describing the disciplinary warnings that he is-
sued, there is no mention of that report in the record.
(Two or three times at trial Gallup is at some pains to correct
the Government’s assertion (4:689–690) that the final basis for
Snyder’s discharge was an allegation that Snyder had engaged in
sexual harassment. Gallup’s position there (4:691–692, 749) and
on brief (Brief at 109; Reply at 34–35) is that the allegation was
not processed under Gallup’s sexual harassment policy. Instead,
the allegation was treated as a charge of disturbing the workplace
by making offensive remarks of a sexual nature. It appears that
the main difference in the nomenclature is that the sexual har-
assment policy contains certain steps in a formal procedure. By
contrast, “disturbing the workplace” is far more informal. More-
over, what might constitute sexual harassment under the policy, if
the determination were to follow the law of court cases, no doubt
would have a less flexible definition than comments “of a sexual
nature.” In short, management would have more flexibility, and
less formality, by proceeding on the basis of “disturbing the
workplace” than in treating the incident under Gallup’s sexual
harassment policy, even though some of the concepts are very
similar or even identical.)
Respecting the disputed point, I credit Patrick Snyder that Bar-
low did not expressly issue a capital punishment warning. Even
so, this may be a finding of little import. First, Snyder concedes
that, at one point, Barlow did say that disrupting the office could
be grounds for termination. Second, as I have mentioned, the
record contains no rules of conduct and stated disciplinary penal-
ties. There is no Gallup rule of record requiring that an employee
be given a capital punishment warning in the event of another
infraction against managerial serenity. Thus, whether Barlow
issued a capital punishment warning or not, it matters not insofar
as Gallup’s past practice or rules are concerned. The absence of
such a warning possibly will be a factor to consider when dis-
cussing motivation. Move now to the next incident.
(2) Number Two—May 26, 1999
(a) “Real” supervisor—(Again?)
The first issue here is a timing question. Thus, Snyder’s initial
testimony implies that he left the facility immediately after visit-
ing his cube and signing out—that is, within about 5 minutes of
the conclusion of the disciplinary meeting. (4:723; 5:836) Under
GALLUP, INC. 1297
this implied theory, Snyder would not have been present after
9:10 p.m. when the second incident supposedly occurred. In-
deed, Snyder contends that this second incident never occurred.
(4:733)
Supervisor Barlow testified that the disciplinary meeting lasted
about 20 minutes, concluding about 8:40 p.m. (12:2247, 2250)
He is supported in this by Glen Lambert’s intcheck for that eve-
ning. (RX 41 lines 307-308; 12:2250–2253) About 30 to 45
minutes after the disciplinary meeting ended, Supervisor Geiger
asserts (13:2687–2688), [or about 9:10 p.m. to 9:25 p.m.], she
and Supervisor Jason Becerra were eating their pizza dinner at
Mission Control when [between about 9:10 p.m. to 9:25 p.m.]
Patrick Snyder approached and asked whether he would be given
an hour’s exemption from his weekly requirement. Geiger re-
plied no, explaining that there was plenty of work to do that week
and that the interviewers were required to work their hours.
(13:2687–2688) At trial Geiger’s explanation about “exemp-
tions” leads to the point in issue (13:2688–2689):
Q. What do you mean by exemption or hours off?
A. When the workload is slow, sometimes Gallup will
give you an exemption which means you don’t need to get
your hours in, if you want to take extra time off. Your pay
wouldn’t be adjusted because we’re giving you time off.
And so he was asking if that week they were going to get
hours off.
Q. And you responded negatively?
A. I said no, there was plenty of work to be done that
week and that they were required to get their hours in.
Q. And did he say anything to that?
A. Yes.
Q. What did he say?
A. He said, “Are you sure, or do we need to ask a real
supervisor?”
Q. And how did you respond to that?
A. I became upset and I said, “Okay, that’s it; this is the
second time you’ve done this tonight, you’re being insubor-
dinate, this is your last warning.”
Q. What, if anything, did he say?
A. Actually, he just smiled and turned away and walked
away.
Jason Becerra did not testify. Recall that Becerra left Gallup
in early October 1999. (1:38–39, Uria-Ruiz). Overlooking this
fact, the General Counsel (Br. at 36) requests that an adverse
inference be drawn against Gallup from its failure to call Super-
visor Becerra to testify. Because Becerra was no longer em-
ployed by Gallup during the time of the trial, no adverse infer-
ence can be drawn from Gallup’s failure to call him as a witness.
Reno Hilton, 326 NLRB 1421, 1421 fn. 1 (1998), enfd. on point
196 F.3d 1275, 1284 (D.C. Cir. 1999).
Interviewer Joyce Niehouse asserts that, approaching Mission
Control to ask a question, she came upon the conversation, and
heard Snyder tell Geiger that he needed to speak to a manager.
When Geiger replied, “I am a manager,” Snyder stated, “I need to
speak to a real manager.” (Emphasis in original.) Deciding that
this was not the place for her to be, Niehouse left. (12:2447)
Niehouse acknowledges that she was vocally opposed to the
Union. 12:2448) Recall that in Lynne Zieler’s case I found Nie-
house not to be a credible witness. I also note that on this occa-
sion Supervisor Geiger recalls no one else being present besides
the three already named. (13:2688) Moreover, in her June 2
“Incident Report” (JX 21a) that, it appears, Geiger prepared after
returning from a 5-day Memorial Holiday that she took
(13:2689–2691), Geiger names Jason Becerra as a witness, but
not Joyce Niehouse either by name or simply as an unidentified
person. Again observing that Niehouse had an unfavorable de-
meanor, and in light of the foregoing, and struck by the fact that
Niehouse supposedly was so conveniently present and heard only
this specific part of the conversation, I do not credit Joyce Nie-
house concerning this event.
As Snyder was on Supervisor Charles Davenport’s team
(5:829–830; JX 22; RX 44), it is not clear why Snyder would not
have asked Davenport rather than Geiger. Indeed, as Snyder had
left the disciplinary meeting (in which he had received a verbal
warning with at least an implied warning from Barlow that any
repetition could result in his discharge) no more than a few min-
utes earlier, where Supervisor Geiger had stated her view that
Snyder’s question to her in incident Number One was voiced in a
sarcastic manner (4:722, Snyder; 12:2249, 2389, Barlow), it is
very strange that Snyder would ask Geiger about this matter. On
the other hand, Davenport was not even present for the discipli-
nary meeting conducted by Supervisor Barlow, so perhaps the
jurisdictional lines among supervisors and their teams at Gallup
are a bit blurred. Stranger still, of course, is the thought that, so
shortly after receiving the warning for insulting Supervisor Gei-
ger, Snyder would be so foolish as to repeat his insult. And
stranger still more is the assertion that Snyder delivered the insult
in the presence of a witness, Supervisor Becerra, a witness osten-
sibly friendly to Geiger.
As for the timing of the occasion, although Snyder’s initial tes-
timony suggests that immediately after the disciplinary meeting
he packed up, signed out at Mission Control, and went home
(4:723; 5:836), and therefore would not have been on the prem-
ises for any second incident with Supervisor Geiger, his subse-
quent testimony on cross-examination discloses that he had con-
versations with several union committee members following his
disciplinary meeting (5:837–841, 847, for example). Moreover,
Snyder states that when he left the facility and reached the park-
ing lot, he met interviewer Rene Ontiveros and his wife who
were in their car. They asked if he wanted an escort to his car.
(5:846, Snyder)
Now it so happens that Ontiveros’ intcheck reflects that his
last call for the day ended at 9:04 p.m. (RX 42 at 3 line 124;
12:2253–2255, Barlow) Supervisor Barlow reports that, when he
left the facility about 9:10 to 9:15 that evening for the parking
garage, he saw Snyder outside the building. (12:2255–2256) It
takes about 5 minutes for someone leaving Gallup’s Houston
office to reach the parking garage. (11:2158–2159, Barlow) The
evidence strongly suggests that Rene Ontiveros left the building
about 9:10 p.m., and that Snyder (who encountered Ontiveros in
the parking garage) left perhaps a minute or so later for Barlow
saw him outside the building about 9:10 to 9:15 p.m. From this
evidence it is clear that, from a time standpoint, it is a very tight
squeeze to place Snyder at Mission Control at some point be-
tween 9:10 and 9:25 that evening. Indeed, as the pizza arrived
about 9:10 p.m., even placing the time of Snyder’s asserted visit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1298
at soon after Geiger and Becerra began their feast, say 9:15 p.m.,
it becomes a stretch to say that Snyder could have been at Mis-
sion Control at 9:15 p.m. when that is the very time Supervisor
Barlow saw him outside the building (presumably on the way to
or in the parking garage). Accordingly, I find that the timing
factor, although not a fully clear factor, tends to favor the conten-
tion (4:735) of Patrick Snyder that this incident “never hap-
pened”—or, as Snyder also describes the allegation (4:733), “It is
a lie.”
[Regarding this timing matter, I disregard Gallup’s inadvertent
reference to an exhibit (RX 29) that is not part of the record.
(Brief at 120 fn. 23) After I sustained the General Counsel’s
objection to the offer of this pretrial affidavit, Gallup proceeded
to ask questions based on the affidavit, and did not reoffer it.
(5:834)]
(b) The two documents
Following her long Memorial Day holiday, Supervisor Geiger
returned to work on Tuesday, June 1. At a meeting of the super-
visors that day, she reported this incident and that she had warned
Snyder. The told her to document the incident. (13:2691) The
following day, Wednesday, June 2, Geiger prepared a document
(JX 22) reflecting the verbal warning that she had given to Sny-
der the previous Wednesday, May 26. (13:2691) Presumably
she also prepared the June 2 “Incident Report” (JX 21a) at the
same time. (On this report, she records the time of the incident as
being 8:15 p.m., some 30 to 45 minutes earlier than she gave at
trial. Of course, that would have been 5 minutes before even the
disciplinary meeting began, and therefore it obviously is off
base.)
Respecting the documented form for the verbal warning (JX
22), the text of the comment section originally had three sen-
tences, but the third is crossed out on the exhibit. Geiger con-
cedes that she crossed it out, at the August 6 discharge meeting,
because it is an incorrect statement. (13:2691–2692; 14:2881)
The original text reads (JX 22):
Insubordination—he was rude and asked to speak to a “real”
manager. He was given a verbal warning. He refused to
sign the warning.
Now the legal world is familiar with the judicial procedure of
correcting an order or judgment “nunc pro tunc” (“now for
then”)51 in order that the court’s records will “speak the truth.”
At the August 6 discharge meeting, when Snyder was first shown
this document, aside from his denial of the incident, he pointed
out to Geiger that, because it assertedly was a verbal (oral) warn-
ing that was given, there was nothing for him to sign. (4:735–
736) Agreeing, Geiger reached over and scratched out the last
sentence. (4:736, Snyder; 13:2691–2692; 14:2881, Geiger) The
troubling issue is not so much the scratching out as it is a ques-
tion of why Geiger saw fit to write it to begin with. Had the sen-
tence been part of the preprinted items, it possibly could be ar-
gued that she simply had overlooked its presence. But this is
something that she actually had to write out by hand—something
that, on June 2, she knew was false. Why would Supervisor

51 B.A. Garner, A Dictionary of Modern Legal Usage 607 (2d ed.,
Oxford Univ. Press, 1995).
Geiger have done that? On cross-examination, the General
Counsel, going for the gold, let potential wealth slip through her
fingers when she moved on to other topics without following up
on her question. The exchange reads (14:2881):
Q. And did you ever ask Mr. Snyder to sign that docu-
ment?
A. No.
Q. Why did you originally write on Joint Exhibit 22
that Mr. Snyder refused to sign the warning?
A. I had noticed that he had not signed it, and I was
mistaken and wrote he refused to sign it, but it was a ver-
bal warning; he was not given an opportunity to sign any-
thing.
Does Geiger’s response simply tell us again why she
scratched out the sentence, not why she wrote such a false
statement in the first place? Or is she (a person both intelligent
and articulate) saying, in a rather inarticulate and indirect man-
ner, that at some later date when she inspected the warning
memorialization (JX 22), she observed that Snyder had not
signed it so she therefore, on that unspecified later date, added
the third sentence that, on August 6, she scratched out? But
how can that be, for she tells us, as quoted, that she never asked
Snyder to sign the document. Moreover, she admits that she
has never asked anyone to sign a verbal warning. (14:2881)
Indeed, at Gallup employees normally are not even told that
such a memorial document is being placed in their personnel
file (14:2881), and Geiger did not tell Snyder on this occasion
(13:2691) Whatever actually happened here, the appearance of
a dissembling answer is troubling.
Gallup argues that Supervisor Geiger, having just arrived in
Houston on May 17 (13:2467), had no motive to fabricate this
second incident. (Br. at 119) Indeed, Geiger observes that,
before May 26, she and Snyder had never had any conflict.
Therefore, Snyder’s rudeness on May 26 surprised her.
(13:2699–2700) In contrast, Gallup contends (Br. at 119–120),
Snyder’s motive for expressing his insubordination in this sec-
ond incident is that he was upset that Geiger (a young manager
and he (roughly 45 to 47 I would say) an experienced and supe-
rior interviewer with a cube full of awards—“The Chosen
One”) had just rebuffed his request for an exemption of hours.
That is, Gallup argues, Snyder wanted the union supporters to
be able to leave work (assertedly because they were being har-
assed following CEO Clifton’s speech) without being penal-
ized. A major problem with this theory is that Geiger merely
testified that Snyder asked if “he” was going to be given an
exemption. (13:2688) The asserted request did not extend to
anyone else. Only in her explanation of what the request meant
does Geiger state that Snyder was asking if “they” were going
to get an exemption. In her answer to Snyder, Geiger states
that “they” would be required to work their required hours.
The use of “they” is nothing more, I find, than a generic refer-
ence to all employees, utilized in order to show that she was not
mistreating him by stating, in effect, that all employees would
have to work their required hours. I so find.
Gallup suggests (Br. at 113) that Snyder’s inability to re-
member who the supervisor was who was at Mission Control
when he tendered his paysheet (RX 41) for initialing at his
GALLUP, INC. 1299
signing out, or to recognize the initials on his paysheet (4:723;
5:825, 866–868), indicates that Snyder simply is trying to con-
ceal the fact that it was Supervisor Geiger, who was on duty
that night at Mission Control, to whom he presented his pay-
sheet for initialing. Nothing prevented Gallup from establish-
ing through Geiger whether the supervisor’s initials on the pay-
sheet (GCX 41 at 1) are hers. Although there is some similarity
with the initials that she apparently placed on the scratch-out on
the verbal warning (JX 22), there are significant differences.
For all we know, some other supervisor spelled Geiger at Mis-
sion Control while she took a break, and it could have been
then that Snyder arrived and obtained that supervisor’s initials
on his paysheet.
But even if Geiger was the supervisor who was at Mission
Control and initialed Snyder’s paysheet, that would support
Snyder more than Gallup. Thus, if that happened, it seems a bit
inconsistent with Geiger’s story that Snyder came up and stated
that he needed to see a manager, then a “real” manager. If all
that went on, when did Snyder tender his paysheet and when
did Geiger calmly initial it? In any event, I find that Geiger did
have a potential motive for preparing false documentation of a
warning (an aside from any nefarious mission to eliminate lead-
ing union supporters). Thus, recall Therron Hume’s account
that, in the first incident, Geiger complained to Hume that Gei-
ger had been getting comments of rude tones from several em-
ployees lately. Moments later, as I have found, Snyder insulted
Geiger by saying that a “real” supervisor was needed.
The record possibly suggests that Supervisor Geiger lifted
that insult from the first incident and incorporated it into and
fabricated this second incident. However, pursuing that sug-
gestion would implicate Supervisor Becerra who apparently
signed the document as a witness (JX 22). The Government
advances neither evidence nor theory as to why Supervisor
Becerra would accommodate Geiger by signing, as a witness,
something that he knew to be false. Granted, Supervisors Gei-
ger and Becerra obviously were on friendly terms as of May 26
even though Geiger had been there fewer than 2 weeks, and
they were still on friendly terms even after both had left
Gallup’s employment, as the record (14:2906–2908) reflects.
Still, Becerra is not named in a single count of 8(a)(1), and
there is not a single quote of animus attributed to him. Nor is
there any evidence that Becerra and Snyder were on unfriendly
terms. Indeed, as Snyder asserts, before the confrontation with
Therron Hume, Snyder apparently had not experienced a con-
flict with anyone at Gallup because he devoted himself to his
work and hardly knew anyone outside his own GTE track.
(5:849–850; 16:3161). In short, nothing in the record suggests
that Becerra would sign a false document as to Patrick Snyder.
Moreover, Becerra also signed the June 2 incident report (JX
21a) that Geiger prepared. Aside from what I already have
described, the text of that report concludes by stating that Gei-
ger had told Snyder that by questioning her position and being
hostile he was committing insubordination. “I told him that if
he did this again he would lose his job. This was his last warn-
ing.” Snyder asserts that this report, including the “last warn-
ing” portion, is all “a lie.” (4:733, 735)
(c) Conversation of June 2, 1999
Snyder asserts that, about a week after incident Number One,
or about June 2, on impulse he stopped at Mission Control and
asked Geiger, the duty supervisor, whether she felt that he had
insulted her in the incident with Therron Hume. According to
Snyder, Geiger replied “No.” (4:724) Geiger denies. (13:2700)
By coincidence, this would be the same date that Geiger drafted
her June 2 incident report (JX 21a) and the documentation of
the verbal warning (JX 22). A “No” response sounds a bit
unlikely. I am not persuaded that this conversation occurred.
(d) Meeting of July 8, 1999
About Thursday, July 8, Patrick Snyder met with Supervi-
sors Heidi Roberts (the new lead manager), Doug Barlow, and
Stephanie Geiger in Barlow’s office. Snyder said that there
was an office rumor that he had been targeted for termination,
that at the disciplinary meeting Barlow had told Snyder and
Hume to write up their versions of the (first) incident, that Sny-
der had done so and now wanted to submit his version to be
placed in his personnel file. And because he also had heard that
his file contained two harassment charges, he requested to see
his file and see what the harassment charges were about.
After assuring Snyder that rumors are just rumors and that
Snyder had done the proper thing by coming to them, Supervi-
sor Barlow, joined by the other two, replied that the office had
“gone paperless,” and that all personnel records were now in
Lincoln (Nebraska). Barlow said that they did not have to
show him his personnel file, that the file contained no harass-
ment charges to his knowledge, but that he would find out and
let Snyder know. Snyder then directly asked Geiger whether
she had written up her version of events and placed them in his
file and she replied, “No.” He then asked whether there was
anything in his file, and Barlow and Geiger each said, “No,
there’s nothing in your file at all, period.” (4:724–727; 5:825,
832, Snyder)
In their testimonial appearance at trial, neither Doug Barlow
nor Heidi Roberts address this meeting (nor does Gallup do so
on brief). Supervisor Geiger does so. Geiger’s account is gen-
erally consistent with Snyder’s up to a point. The main differ-
ences are that, in Geiger’s version, Snyder seeks to ascertain
whether there are any written (emphasis added) warnings in his
file, and the supervisors assure him that there are no written
(emphasis added) warnings in his file. Snyder assertedly was
told, however, that his file would contain documentation of
“both” events of May 26, and that the documentation was just
of the verbal warning, plus now his statement would be in-
cluded. (13:2692–2695, Geiger) I am skeptical of Geiger’s
version. It sounds so legalistic and so full of propaganda,
whereas Snyder’s, as in his delivery, has a natural ring.
With such major differences in these versions, it would be
nice to have the report of a disinterested bystander. Hooray!
We do. It is a tape recording, produced by the General Counsel
(4:805, 812, 814) that Snyder made of the meeting. (5:825,
Snyder) Unfortunately, neither the General Counsel nor Gallup
ever offered this tape recording as evidence, not even during
the rebuttal stage. Thus, I am left with a major conflict on the
main point of this event, and neither party offers the one piece
of independent evidence that would resolve the conflict. So
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1300
which party is more in need of the evidence? The answer, of
course, is the party who has the burden of persuasion on the
issue—the Government. Accordingly, I draw the inference,
adverse to the Government, that had the General Counsel intro-
duced the tape and a transcript, that such exhibits would show
that, as to the major points of conflict, Supervisor Geiger’s
version would be supported rather than the version of Patrick
Snyder. At the same time, I draw an inference, adverse to
Gallup, that had Supervisors Barlow and Roberts given their
reports of the meeting, that such reports would be consistent
with Snyder’s version rather than with Geiger’s account. How-
ever, I consider the adverse inference against the Government
stronger than the adverse inference against Gallup (because the
former involves the General Counsel’s failure to offer a tape
recording (capturing the event) and transcript). The testimonial
difference is not enough to carry this point for the Government.
In short, the General Counsel has failed to demonstrate that the
July 8 meeting went as described by Patrick Snyder.
Snyder also testified that he understood a verbal warning was
no more than that, and, being verbal (oral), nothing was re-
corded or memorialized and placed in his personnel file.
(4:728) That may well be his understanding, but there is noth-
ing unusual about memorializations of oral warnings. In any
event, at Gallup, Supervisor Geiger asserts, oral warnings nor-
mally are memorialized, and employees normally are not told
that such written accounts are being placed in their personnel
files. (13:2691; 14:2881) If that is so, then why did Supervisor
Barlow not prepare a memo memorializing the verbal warning
that he gave to Snyder on May 26? In fact, he never did, and it
was not until August 6, the date of Snyder’s discharge, that
Supervisor Geiger prepared an “Incident Report” (JX 21b)
covering the Therron Hume incident and verbal warning. Even
so, I decline to find any “invidious motive,” as requested by the
General Counsel (Br. at 37), in Supervisor Geiger’s early fail-
ure to tell Patrick Snyder that she had prepared a documenta-
tion of her verbal warning given for the second incident, along
with an incident report for the second incident, and that such
items would be sent to Nebraska to be placed in his personnel
file. Nothing shows that Geiger departed from her own past
practice.
(e) Conclusion
I find that the Government has not carried its burden of es-
tablishing (as part of a pretextual motive theory) that the second
incident did not occur. However, I leave open for later discus-
sion whether it could be found that Gallup could not have relied
in good faith on the second incident. In this connection, any
finding of bad faith by Gallup (that is, an unlawful motive)
must go beyond any personal animus that Geiger may have
developed against Patrick Snyder. Recall that the entire first
incident, including the “real” supervisor insult, was all of a
personal nature. The evidence suggests that any animus Super-
visor Geiger felt against Snyder was based on his personal at-
tack on her, and was not directed against him because of his
union activities. That also would be true of the asserted second
incident. Therefore, the record would have to show that, de-
spite this original personal nature of the matter, Gallup know-
ingly converted the matter into an antiunion scheme to get rid
of Patrick Snyder because of his union activities. At this point
the evidence does not get beyond the stumbling block of Su-
pervisor Jason Becerra’s presence and his signature on Supervi-
sor Geiger’s two documents.
Finally, and respecting Supervisor Jason Becerra, It is a mys-
tery how the Government could issue and proceed to trial on a
complaint as to Patrick Snyder without having or advancing a
theory neutralizing the presence of Supervisor Becerra at this
asserted second incident This is all the more true if, during the
investigation stage, Becerra gave an affidavit reaffirming the
two documents (JXs 21a and 22) that he signed as a witness.
Simply ignoring Becerra is not a effective litigation strategy.
(3) Number Three—August 4, 1999
(a) Gallup’s policies
Respecting “offensive comments of a sexual nature” (RX 44,
the termination notice), it is relevant to consider Gallup’s poli-
cies on inappropriate language even though Patrick Snyder was
not discharged under Gallup’s policy against sexual harass-
ment. Despite that technical distinction, as we see in just a few
minutes, at Snyder’s termination meeting, Supervisor Barlow
handed to Snyder a copy of Gallup’s policy against sexual har-
assment. (4:729–731, Snyder) Now the record contains two
versions of a sexual harassment policy. The older one-page
copy, it appears, is or was the form (GCX 34 at internal 65)
signed by Snyder when he was hired (it possibly has been su-
perseded since 1994 when Snyder was hired). (4:688, Snyder)
It is shorter than the one appearing in the January 1999 ITM
(JX 23 at internal 68–70), but that mainly is because the current
three-page model has extensive coverage of a complaint proce-
dure. Then there is the four-page May 20, 1999 Equal Em-
ployment Opportunity and Non-Harassment Policy Statement
(JX 1) which is broad enough to cover every complaint known
to contemporary American society, especially with the more
recent addition of harassment about “the union issue” that was
addressed much earlier in this decision.
Although not entirely clear, it appears that the document that
Supervisor Barlow handed to Patrick Snyder at the termination
meeting was a copy of the older one-page version (GCX 34 at
internal 65), for that is the indication from Snyder (4:688–690,
729, 731–732), and Supervisor Barlow never disputes that sug-
gestion. Even under this older form, sexual harassment is de-
fined in broad terms, and includes “other verbal or physical
conduct of a sexual nature when” “(3)” it creates an “offensive
work environment.” However, under the policy, it could be
argued that a single incident of less than a blatant nature would
not qualify, and that the less than blatant “prohibited acts”
would need to be (GCX 34 at internal 65):
(2) continual or repeated verbal abuses of a sexual na-
ture including graphic commentaries on the person’s body,
sexually suggestive objects or pictures placed in the work
area that may embarrass or offend the person, sexually de-
grading words to describe the person or propositions of a
sexual nature.
In any event, notwithstanding that at trial the General Coun-
sel was expressly proceeding on the theory (as mentioned
above in my summary of the disciplinary meeting) that the final
GALLUP, INC. 1301
ground for which Gallup discharged Patrick Snyder was sexual
harassment (4:689–690), on brief (Br. at 37, 51) the Govern-
ment makes no such claim. Even so, it is clear that the third
ground for Gallup’s termination of Snyder relies on the concept
of “sexual harassment,” for Supervisor Barlow admits
(12:2266) that “Snyder’s comment refers to the term ‘sexual
harassment.’” It is just that, as I summarized earlier, Gallup
wanted the flexibility and informality of proceeding under the
rubric of “disturbing the workplace” rather than Gallup’s for-
mal and less flexible sexual harassment policy.
(b) “Teddies”
Recall that Wednesday, August 4, was pajama day, or the
day of “Pajama Jama.” Arriving at work in street clothes about
3 o’clock that afternoon, Patrick Snyder, as he acknowledges
(4:696–697), commented to four female employees as he pro-
ceeded to his cube. To Supervisor Heidi Roberts, wearing a
silk top and shorts ensemble, he asked if those were her paja-
mas. She answered yes. “That’s cute,” he said. Any reply by
Roberts is not recorded. Walking past Mission Control, and
observing Supervisor Stephanie Geiger in apparent street
clothes, Snyder remarked, “Gee, I’m disappointed; I took you
for a teddy girl.” (4:696)
Snyder asserts that Geiger merely laughed. (4:696) Geiger
reports that she responded, “Knock it off, Patrick.” Geiger filed
no complaint over Snyder’s remark even though Snyder assert-
edly, “throughout the summer,” had made other unwelcome
remarks, including one or more of this nature. (13:2699–2700)
During his rebuttal testimony, Snyder does not address these
assertions of Geiger. Attaching weight to Snyder’s failure to
rebut, I credit Supervisor Geiger’s description. Teddy pajamas,
Geiger informs, are a skimpy, one-piece outfit that is “pretty
revealing.” She reports that the idea for the “pajama jama”
came from the Support Team, which does the taping and moni-
toring at the Houston office, on the theory that it would “invoke
some spirit in the workplace.” (13:2698–2699) Supervisor
Uria-Ruiz testified that it is the retention specialist’s job to
make sure that these events “go well.” (1:125) That person’s
overall job, Uria-Ruiz advises, is to motivate employees and to
keep turnover low. (2:227–228) The record does not show
what grade the retention specialist received for this event.
Proceeding on, Snyder next met Joanne Passig, a person of
mature years dressed like a grandma figure” and who was
wearing “bunny slippers.” “Those are cute bunny slippers,”
Snyder commented. (4:697) Passig’s reply, if any, is not re-
corded. Snyder began work at his desk. As irony would have
it, about 15 minutes later Tristan Lucario, a member of the
support staff who walked around “mapping” the work that in-
terviewers were doing (15:3102–3103, Lucario), came by ap-
parently wearing street clothes (4:697, Snyder). To Lucario,
whose name Snyder did not learn until his discharge 2 days
later (4:732, Snyder), Snyder acknowledges saying, “Gee, I’m
disappointed; I took you for a teddy girl.” “No,” she assertedly
replied, “I wear a tee shirt and shorts.” She then left. (4:697)
Lucario tells us that the time of the incident was about 3:15
p.m. (15:3107) She informed some of her fellow support
staffers of Snyder’s remarks. They told her to “write it.” She
intended to do so, but first resumed her work. About 5 p.m.
(15:3104, 3107) interviewer David Brown also made comments
(much worse than Snyder’s, as we see shortly). Both sets of
comments made Lucario uncomfortable and she considered
them improper. (15:3105–3106) She then wrote up both inci-
dents and submitted her written complaints to Supervisor Heidi
Roberts that same evening. (15:3104, 3106, 3108) Actually, as
we learn in a moment from Supervisor Geiger, complained
orally to Supervisor Roberts, with Supervisor Geiger present,
the evening of August 4. They told her to reduce the com-
plaints to writing, and it was the next day that she submitted her
written (hand printed, actually) one-page complaints against
Snyder and Brown. (13:2695–2697)
Lucario’s complaint as to Snyder is printed as a verbatim
transcript of testimony by “Patrick” (“PS,” below) and “Me”
(“TL,” below) as follows (GCX 10):
PS: So where’s your pajamas?
TL: I didn’t wear any.
PS: Man, I was looking forward to seeing you in a
teddy. Do you wear teddies?
TL: No.
PS: Well, then what do you wear?
TL: I wear boxers and a T-shirt.
In a paragraph following that report, Lucario printed as fol-
lows (GCX 10):
And then I walked off. The situation started when I was
mapping and I was about to ask him for his start up code. The
time was about 3:15 p.m. The situation made me feel really
uncomfortable.
[On the exhibit copy, a photocopy of a hand printed docu-
ment, the bolding that I have displayed above does not appear,
although the underlining of the single word does. Instead, an
asterisk appears on each end of the last (and now bolded) sen-
tence. As I type in the second asterisk, using Microsoft Word
97, the software converts everything between the asterisks (the
asterisks disappear) from normal text to boldface text. Assum-
ing that, by so placing the asterisks, Lucario intended them to
mean just what the software has done, I leave the last sentence
bolded.]
Lucario testified that she prepared and submitted the docu-
ment because Snyder’s comments “made me feel uncomfort-
able. I didn’t think it was right for someone in the workplace to
say that type of comment to me.” (15:3104–3105) Indeed, the
fact that Lucario was in street clothes, and not in pajamas,
should have served as an alarm bell for Snyder that the 18-year
old Lucario would consider as unwelcome any sexually sugges-
tive pajama comments about her bedroom habits.
Lucario’s complaint as to David Brown (GCX 6) reports, in
the same transcript format, a conversation that begins very
much as the one with Snyder, only Brown quickly becomes far
more direct and aggressive (“You’ve got the whole package
and a nice body ... Let’s just say, you’re all that and a bag of
chips, snickers, and skittles.” Then, grabbing Lucario’s arm,
Brown remarked, “Your boyfriend’s a lucky guy.”
In the paragraph she added to this complaint, Lucario states
that she walked away thinking that it was the “second time that
an older man had spoken to me so vulgar. It made me feel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1302
really uncomfortable and I almost started to cry. It was about
5:45 p.m. when this happened.” No asterisks are included in
this paragraph. Observing Lucario to testify in a persuasive
fashion, I find that the August 4 incidents with Patrick Snyder
and David Brown occurred as she describes.
As noted earlier, Supervisor Geiger reports that Lucario first
orally reported these incidents to Supervisor Heidi Roberts, in
the latter’s office, while Geiger was present. Actually, Geiger
states that Lucario came into the office, crying as Geiger re-
calls, and said that something had happened between her and
Patrick Snyder that made her extremely uncomfortable. As
Geiger describes the meeting, Lucario never mentions David
Brown. (13:2695–2697) In light of the substantial differences
between the conduct of Snyder and Brown, with Brown’s con-
duct, besides referring to Lucario’s body, also including his
grabbing Lucario’s arm, I find that whatever crying Lucario did
(and she possibly was tearful), was generated by David
Brown’s assaulting behavior rather than by Snyder’s ill-advised
words. I further find that Lucario’s oral report the evening of
August 4 to Roberts and Geiger specifically included a descrip-
tion of David Brown’s conduct, and that at trial Geiger deliber-
ately, and in an effort to mislead me, sought to omit Brown and
to portray Patrick Snyder as the cause for Lucario’s tearful
condition. Finally, I find that Supervisor Geiger’s deliberate
attempt to mislead me was driven by an intense animus against
Patrick Snyder.
(c) Patrick Snyder is discharged
Snyder’s termination took place in Supervisor Chad
Murray’s office moments after Snyder arrived for work about 3
p.m. on Friday, August 6. Present were Snyder, Murray, and
Supervisor Doug Barlow, with Barlow seated at Murray’s desk.
Barlow did most of the talking for Gallup. (4:728–731, Snyder;
12:2261–2263) Although, in his description, Barlow omits
tendering the sexual harassment policy (12 2263), I credit Sny-
der (4:729, 731) that, at the beginning of the conversation, Bar-
low handed Snyder a copy of the sexual harassment policy.
This apparently was a copy of the older version. (GCX 34 at
internal 65) The conversation then went to the August 4 pa-
jama contest.52 During his own testimony, Supervisor Murray
did not address the subject of this meeting.
At first Barlow hesitated about releasing Tristan Lucario’s
name, and instead asked whether Snyder had asked a “support
girl about a teddy.” Admitting that he had, Snyder said that
such was in the spirit of the pajama party. (4:731) At trial
Snyder explains that for days employees had been joking about
pajamas. The event was to be fun. “And at Gallup, you were
expected to participate in the fun events; otherwise, you were
not considered a team player.” (4:731) Notwithstanding that
testimony, as mentioned earlier (4:696), Snyder came to work
in street clothes, not in pajamas.
Barlow then read Lucario’s account (apparently the tran-
script portion of GCX 10), and Snyder protested that he had not
said that. Snyder stated that he asked Lucario why she had not

52 Crediting both Snyder and Barlow in part, the sequence and con-
tent I render here is my finding of how the conversation generally pro-
ceeded.
dressed up and that “I would have figured you for a teddy girl.”
To this Barlow asked if Snyder admitted making a comment.
Snyder replied, “Yes, but it wasn’t the way that Tristan said.”
(12:2264–2265, Barlow)
Then handing Snyder a document listing “three charges”
(4:732, Snyder) (apparently RX 44, the termination notice),
Barlow said that, based on the two previous incidents of dis-
rupting the workplace, in addition to the most recent incident,
“You are terminated.” (12:2265, 2267, Barlow) Snyder then
asked what the two other incidents were. (12:2267) Barlow
said the first one was the disruption with Therron Hume.
(4:732; 12:2265) Snyder acknowledged that he knew about
that one. (12:2267) Apparently inspecting the termination
notice, Snyder then asked (4:732), “What is this insubordina-
tion charge?” Handing Snyder a copy of Supervisor Geiger’s
June 2 “verbal” warning document (JX 22) (4:732, 735), Bar-
low said it was in telling Supervisor Geiger on May 26 that
Snyder needed to find a real manager (12:2265). Snyder pro-
tested to Barlow, “This never happened.” (4:732, 735) Barlow
then went and brought in Supervisor Geiger. (4:735, Snyder;
12:2267, Barlow)
When Barlow returned with Geiger, Snyder looked at her
and said, “You know this never happened.” Geiger replied,
“Yes, it did.” Referring to the third sentence that alleged he
had refused to sign the (verbal) warning, Snyder told Geiger
that in a verbal warning there is nothing to sign. Geiger then
reached over and (as earlier noted) scratched out the third sen-
tence. (4:736, Snyder; 12; 2267, Barlow; 13:2692, Geiger)
Geiger then left the meeting. (4:736) Snyder repeated that the
incident never happened, and that it was fabricated. Barlow
repeated that, based on the incidents of disruption in the work-
place, the verbal warning by Geiger, and the offensive com-
ments of a sexual nature, “you are terminated.” (12:2267–
2268) Barlow added that he would not have terminated Snyder
solely on the last incident, but because of the combination of all
the incidents,53 “we are terminating you.” (12:2265) Unrebutted
testimony by Snyder reflects that, at one point, Supervisor Bar-
low said (4:737):
You know, you’re one of our best workers; you’re not being
terminated for quality or performance. You’ve had this
change of attitude a couple of months ago.
A couple of months earlier (late May—early June), of
course, was a time when the union movement was still very
active—and also a time, May 26, when Snyder received two
verbal warnings. Barlow denies that Snyder’s union activities
were a factor in the decision to discharge him. (12:2315) On
the other hand, Barlow does not tell us who made the decision
to discharge, nor does he describe for us the process (by meet-
ing, memos, or whatever) in which the decision was made.
Before the meeting ended, Snyder asked about references.
Barlow said that the only statement given would be dates of
employment and position held (4:736, Snyder; 12:2268, Bar-
low) Snyder asserts that Barlow also said that callers would be

53 Supervisor Uria-Ruiz confirms that it was the combination, and
that without the last incident, the “last straw,” Snyder would still be
employed, although on probation. (1:60, 132–133, 138)
GALLUP, INC. 1303
told that Snyder was not rehirable. (4:736, Snyder) At trial
Barlow claims that if anyone asked whether Snyder was rehir-
able, the answer would be that Gallup was not at liberty to say.
(12:2268) I find that Barlow, learning the safer procedure after
Snyder’s termination, did tell Snyder that a prospective em-
ployer calling for a reference would be told that Snyder was not
rehirable—a potential defamation lawsuit that well-advised
employers avoid. The meeting then adjourned, and Snyder
gathered his belongings and left. (4:736–737; 12:2268)
d. Disparity
(1) Introduction
To show disparity of treatment, the General Counsel cites in-
cidents of clear sexual harassment by male employees—David
Brown, David Clewis, and Randy Jenkins—who received more
lenient treatment than that administered to Patrick Snyder.
(2) David Brown
Earlier we saw that David Brown was verbally gross, very
aggressive, and even physically assaulting as to Tristan Lu-
cario. Brown did not stop with Lucario that August 4, for
Rheannon Eddy filed a complaint (GCX 7) about very similar
conduct the same evening. (1:125–129, Uria-Ruiz) For his
“inappropriate comments of a sexual nature” involving the two
incidents, Brown was given a written warning (GCX 8 at 1), his
firs offense, by Supervisor Chad Murray and cautioned that the
next time could result in his termination. (1:125–129, Uria-
Ruiz) When the next time came on August 17, as documented
by one victim plus two witnesses (GCX 8 at 2–4), such conduct
involving pulling a garment off the legs of a female interviewer
and gawking at her exposed thighs, he was fired by Supervisor
Murray for sexual harassment. (1:131; 2:301–304, Uria-Ruiz;
GCX 8 at 5; RX 14)
The General Counsel (Br. at 38-39) fails to fully articulate
the discrepancy here. Apparently the Government’s contention
is that the incidents involved several women and the comments
and actions were more serious than the “innocuous comment”
by Patrick Snyder. I see no disparity here. Brown was given a
written (not a verbal) warning for the Lucario and Eddy inci-
dents. (Snyder received a verbal warning for each of two inci-
dents on May 26.) Brown was fired when he repeated his mis-
conduct, and Snyder was fired for an asserted third disruption
of the workplace. There is practically no evidence in the record
calibrating the various levels of comments or conduct of a sex-
ual nature. I note, however, that on March 16, 1999 (some 2
months before the union activity began), Supervisor Uria-Ruiz
gave David Haynes only a verbal warning (RX 76) for sexually
implicit and explicit remarks to and in the presence of another
interviewer, such remarks including that he would like to “get
in Tristan’s pants.” Uria-Ruiz gave only a verbal warning
largely because, it appears, the complaining witness, Angela
Lund, did not want to reduce her complaint to writing.
(15:3110–3112)
(3) David Clewis
On August 12, 1998, Supervisor Joan Dorwart gave a verbal
warning (documented on August 17; GCX 12 at 1) to David
Clews for “harassment”—such conduct being, in effect, unwel-
come advances over a 2-day period to a female employee, con-
cluding by coming up behind her, as she was on the telephone,
and running his hand over her shoulders and around to her up-
per chest just above her breasts. After the victim ran Clews off,
she complained to Dorwart and reduced her complaint to a two-
page complaint (GCX 12 at 2–3). (1:148–149, Uria-Ruiz) This
effort to show disparity is ineffective. While it shows that
Gallup, or at least Supervisor Dorwart, gave a verbal warning
for conduct more serious than the conduct of Patrick Snyder, it
does not show that conduct such as Snyder’s received no warn-
ing.
(4) Randy Jenkins
(a) Facts
This case, involving interviewers Vanessa Zieler and Randy
Jenkins, has the potential to show disparity in treatment. Un-
fortunately, the asserted events occurred largely in 1994 and
1995, and, because of the 4 to 5-year passage of time since the
events, Zieler’s memory understandably recalled details as to
time and sequence only generally and vaguely. No personnel
or other records from that time period were offered to assist in
at least getting a time frame for the sequence of major events.
On May 22, 1998, Supervisor Tom Langenegger fired inter-
viewer Randy Jenkins. (2:231, Uria-Ruiz) The termination
notice (GCX 22) lists the reasons as (1) a long history of not
putting in his required hours for each week and pay period; (2)
falsifying his timesheets so as to over-represent his hours; (3)
disrupting the workplace, and (4) soliciting other trackers to
misrepresent their hours. (The record does not tell us what
conduct of Jenkins constituted “disrupting the workplace,” nor
does it give us the date.)
The General Counsel’s contention here is that Gallup re-
sponded to oral complaints and requests for help for a period
exceeding a year from interviewer Vanessa Zieler (Lynne
Zieler’s daughter, 3:447, 457) by nothing more than exhorting
Jenkins to stop. (Br. at 38) Among the managers to whom
Zieler assertedly reported Jenkins’ unwelcome verbal and
physical advances was Supervisor Doug Barlow. (3:450–451,
V. Zieler) According to Zieler, she complained 10 or 12 times
over several months without any material success. She even
showed them one of the love letters that Jenkins wrote her, but
which she no longer has. (3:450–451) Zieler concedes that for
the first 6 months or so of this conduct, she did not complain to
management because she was “young, naïve, and stupid.”
(3:465) She began work at Gallup in August 1994 as she
turned 17 (3:447), and as of the trial she was 22 (3:456).
Zieler asserts that at one point she telephoned officials in
Nebraska, and 2 weeks later one of them came to the office and
held a meeting, attendance not mandated, with employees. One
of the topics discussed was sexual harassment. The official
said that such conduct was not tolerated in the workplace.
(3:454–455, 464) Eventually Zieler went to Supervisor Bar-
low’s office crying and telling him that she no longer could
take the harassment and that if Gallup would not do anything
she would have to leave. Barlow tried to talk to her, but she did
not want to talk. She then left, apparently quitting. This was in
February 1996. (3:455, 464–465)
Zieler is not sure whether she ever filed a complaint in writ-
ing (3:457-458). In the meeting with the supervisors, when
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1304
Zieler was present, Jenkins was told that his conduct was not
appropriate and that he would be terminated if he did not stop.
(3:461) Nevertheless, the harassment continued, and when
Zieler reported this to Supervisors Barlow and Dennis Welch
they said they would speak with Jenkins. (3:463)
For his part, Supervisor Barlow asserts that Vanessa Zieler
never complained to him about Randy Jenkins, and that she
never had any discussions with her about Jenkins, either with or
without Supervisor Dennis Welch. (12:2271) Moreover,
Gallup asserts that Vanessa Zieler was employed twice. She
did not give notice when she left the first time, nor the second
time either. She did not report directly to Barlow, and she did
not discuss her departure with him. Apparently the reemploy-
ment process is almost automatic for someone who has per-
formed well. Even so, when she asked to come back for her
third employment, that request was denied for failure to give
notice when she left the previous time. At no time was there
any mention in these rehirings about any comments of a sexual
nature by a coworker. (12:2272–2276) Gallup neither identi-
fied nor offered copies of any personnel records of Vanessa
Zieler showing her dates of employment or anything else about
her employment with Gallup. On brief Gallup does not address
the Vanessa Zieler matter.
As noted at the beginning of this topic, many of the asserted
incidents of conduct by Jenkins asserted occurred during the
years of 1994–1995 (3:448), and most of Zieler’s description if
set in a generalized time frame. The most specific incident
occurred about 6-8 months after she began work (so about early
1995), as she and Jenkins got on the elevator to go down to take
a smoke break together. Note that some of the offensive inci-
dents already had occurred before this occasion. (3:459) On
the elevator, Jenkins pushed a button for the 10th floor, of the
12-story building, rather than the down button to the first floor.
However, Zieler was talking to Jenkins and not paying attention
to what he had done, and then they arrived at the 10th floor
which, at the time, was vacant and dark. Notwithstanding those
conditions, Zieler got off the elevator with Jenkins who, appar-
ently moments later, began trying to pull off Zieler’s clothes
and to forcefully have sex with her. (3:448, 453–454) This
apparently was the incident for which Jenkins assertedly was
told to stop or he could be terminated. Nevertheless, after this
10th floor assault, Zieler continued to join with everyone, in-
cluding Jenkins, downstairs on smoke breaks. (3:462) (Credit-
ing Supervisor Barlow that the building has only 10 floors
(11:2156), I gather that Zieler was referring to another floor,
possibly the 8th. To avoid confusion, however, I use Zieler’s
description that it was on the 10th floor with two other floors
above that one.)
(b) Discussion
Vanessa Zieler was not a persuasive witness. I recognize
that, some 4 to 5 years after the events, Zieler would have diffi-
culty recalling details of time and sequence as well as of the
incidents themselves. Even so, I noticed that, when the cross
examination asked about any continued association with Jen-
kins for smoke breaks after the 10th floor assault and the warn-
ing to Jenkins, Zieler became defensive and vague as to the
sequence of anything. Adding to the Government’s problem
here is that Zieler apparently either no longer has, or cannot
find, the love letters that Jenkins either sent to her or gave to
her. Moreover, Zieler apparently never filed a written com-
plaint about the conduct of Jenkins. While a written complaint
is not necessary to initiate action, it certainly would help here
where the question is whether any of this ever happened.
Respecting Gallup’s defense, it can hardly be said that
Gallup did much to support Supervisor Barlow’s testimony.
Thus, copies of personnel records of Vanessa Zieler would at
least, presumably, corroborate Barlow’s assertions that Zieler
worked twice at Gallup and, on her third try, was rejected. On
the other hand, the General Counsel did not call Vanessa Zieler
at the rebuttal stage to correct or to clarify the assertions made
by Barlow about her employment history with Gallup.
Finally, in light of the documented incidents where Gallup
has issued warnings for comments or conduct of a sexual na-
ture, plus several other for nonsexual matters, issued under the
catch-all category of “disturbing the workplace,” it seems very
odd that Gallup’s supervisors (Zieler asserts that she had com-
plained to several supervisors, not just to Supervisor Barlow)
would show no interest in documenting a warning, even a ver-
bal warning, to Randy Jenkins. On the other hand, recall that
Supervisor Barlow did not document his verbal warning of May
26 to Patrick Snyder—that was done by Supervisor Geiger, and
then not until August 6, the day of Snyder’s discharge (JX 21b).
All in all, the evidence from both sides is unimpressive.
Consequently, because the General Counsel carries the burden
of persuasion as to the Vanessa Zieler matter, and that burden
has not been met, I find that the Government has failed to prove
disparity through the evidence as to Vanessa Zieler and Randy
Jenkins. I emphasize that I do not find that Randy Jenkins did
not harass Vanessa Zieler substantially as she describes. I sim-
ply find that, on this record, no findings of such harassment by
Jenkins and complaints by Zieler to Gallup are warranted.
e. The Government’s prima facie case
As I have found, Supervisor Stephanie Geiger’s personal dis-
like for Patrick Snyder is the nature of her animus against him.
About the only item the Government can point to at this point
possibly showing union animus by Gallup against Snyder is the
remark that Supervisor Barlow made to Snyder during the dis-
charge meeting. Recall Barlow’s comment that Snyder was
one of Gallup’s best workers, and was not being terminated for
quality or job performance. But, “You’ve had this change of
attitude a couple of months ago.” (4:731, Snyder) What “atti-
tude” was Barlow referring to? The General Counsel argues
that it was Snyder’s union activities. (Br. at 36) The General
Counsel does not pause to explain why it is those activities
rather than the disciplinary actions taken against Snyder on
May 26. The latter are just as likely as the former. I therefore
find that this comment by Supervisor Barlow has not been
shown to refer to Patrick Snyder’s union activities.
The final possibility is that the third incident, the comments
of a sexual nature to Tristan Lucario, were seized on as a pre-
text to get rid of Patrick Snyder because of his union activities.
Although Snyder’s brief comments were ill advised, they
clearly are mild compared to some others. But, Gallup would
not have terminated him for that one incident. Unfortunately
GALLUP, INC. 1305
for Snyder, that incident made his third disturbance of the
workplace. Short of a showing of disparity, Snyder cannot
prevail. As already summarized, no disparity in treatment has
been shown. Accordingly, finding that the Government has
failed to establish, prima facie, that Snyder’s union activities
were a moving reason for the decision to discharge him, it fol-
lows that the Government’s complaint as to Patrick Snyder
must be dismissed. I therefore shall dismiss complaint para-
graph 25 as to Patrick Snyder.
CONCLUSIONS OF LAW
1. By making certain coercive statements to employees at its
Houston, Texas office, Gallup has violated Section 8(a)(1) of
the Act.
2. Gallup has not violated the Act as otherwise alleged.
3. The unfair labor practices found affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended54
ORDER
The Respondent, Gallup, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Restricting employees from posting, distributing, or pos-
sessing union-related literature, flyers, or notices anywhere in
the Houston, Texas office that employees are permitted to post,
distribute, or possess other nonwork related materials.
(b) Removing or confiscating posted or distributed union-
related materials from places where employees may post, dis-
tribute, or possess other non-work related items.
(c) Requiring employees to notify a supervisor before dis-
tributing union literature at work where no such notification is
required before distributing other non-work materials.
(d) Instructing or requesting new employees, or trainees, to
report to supervision any attempt by other employees to speak
to them about union matters as the new employees, or trainees,
are working, where the instruction or request does not also
extend to other nonwork related matters.

54 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind all
rules restricting employees from posting, distributing, or pos-
sessing union literature, flyers, or notices in the Houston, Texas
office more so than it restricts such posting, distributing, or
possessing other nonwork related materials, and contem-
poraneously with the removal of such restrictions, notify its
Houston, Texas employees in writing that such rules have been
rescinded and that they are free to post, distribute, or possess
union-related materials in the same manner that they are free to
post, distribute, or possess any other non-work related items.
(b) Within 14 days from the date of this Order, notify all em-
ployees, especially new employees, or trainees, that they are as
free, during their working time, to talk with other employees
about union matters and without notifying supervision of such
talk, as they are permitted to talk, without such notification
factor, about any other nonwork related matter.
(c) Within 14 days after service by the Region, post at its of-
fice at Houston, Texas, copies of the attached notice marked
“Appendix.”55 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained by it for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 ceased its operation at the facility
involved in this proceeding, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 18, 1999, the date of the first unfair labor
practice found in this proceeding.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

55 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.”