Guard Publishing Co.

National Labor Relations Board - Board Decisions

Jul 28, 2005

344 N.L.R.B. 1142 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 150
1142
The Guard Publishing Company, d/b/a The Register
Guard and Teamsters Local Union No. 206, af-
filiated with the International Brotherhood of
Teamsters, AFL–CIO. Cases 36–CA–8721 and
36–CA–8759
July 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 5, 2001, Administrative Law Judge Albert A.
Metz issued the attached decision. The Respondent filed
exceptions and a supporting brief, the Charging Party
filed cross-exceptions, the General Counsel filed an an-
swering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended
Order as modified and set forth in full below.3
The judge found that the Respondent violated the Na-
tional Labor Relations Act by granting a wage increase;
soliciting employee grievances and promising to remedy
them; soliciting employees to withdraw their authoriza-
tions for the Union; creating the impression of surveil-
lance; and discharging employee Kama Cox. He also
found that the Union represented a majority of the Re-
spondent’s employees in an appropriate unit and that a
Gissel4 bargaining order was warranted to remedy the
Respondent’s unfair labor practices.5 As set out below,
we adopt the judge’s findings that the Respondent vio-
lated Section 8(a)(1) of the Act by granting a wage in-
crease, soliciting employees’ grievances and promising
to remedy them, and soliciting employees to withdraw
their union authorizations. However, for the reasons

1 No exceptions were filed to the judge’s dismissal of allegations that
(1) a statement in the Respondent’s June 16, 2000 letter to employees
created the impression of surveillance of employees’ union activities
and (2) the Respondent interfered with employees’ union activities by
serving pizza at the June 1, 2000 meeting.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall substitute a new notice in accordance with Ishikawa Gas-
ket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004).
4 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
5 The judge further found that the Respondent violated Sec. 8(a)(5)
of the Act by refusing to bargain with the Union and by refusing to
provide the Union with requested relevant information.
explained below, we reverse the judge’s findings that the
Respondent unlawfully created the impression of surveil-
lance and unlawfully discharged Cox. We also find that a
Gissel bargaining order is not necessary to remedy the
Respondent’s unfair labor practices, and we, therefore,
dismiss the 8(a)(5) allegations.
I. THE WAGE INCREASE
The Respondent is a newspaper publisher in Eugene,
Oregon. It employs approximately 60 employees in its
distribution department. Some of them contacted the Un-
ion in May 2000,6 and approximately 25 employees met
with the Union on May 30. Twenty-four employees
signed petitions authorizing the Union to represent them
at that meeting, and some of those employees then took
the petitions to work to get their coworkers to sign.
On May 31, the Respondent’s editor and publisher,
Tony Baker, sent a letter to all bargaining unit employ-
ees. The letter stated: “It has been brought to my atten-
tion that a few employees have been talking about repre-
sentation by a union.” On that same day, the Respondent
announced a June 1 meeting.7 The meeting was led by
Baker; other high-level supervisors were also present. At
this meeting, Director of Human Resources Cynthia
Walden told employees they would be receiving wage
increases effective June 11.
The judge found that the Respondent violated Section
8(a)(1) of the Act by granting this wage increase. We
agree but do not rely, as did the judge, on the size of the
wage increase or on a presumption that increases granted
during an organizing campaign are unlawful. Rather, we
infer improper motive and interference with employee
Section 7 rights from all of the other evidence set forth
by the judge and the Respondent’s failure to present a
persuasive business reason demonstrating that the timing
of the grant of benefits was governed by factors other
than the union campaign. Montgomery Ward & Co., 288
NLRB 126 fn. 6 (1988), enf. denied on other grounds
904 F.2d 1156 (7th Cir. 1990). Indeed, there was no
evidence that the raises were decided upon prior to the
Respondent’s knowledge of the employees’ union activi-
ties. See Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 962 (2004) (where employer offers no credible ex-
planation for pay raise during union campaign and no
prior history of raise, raise unlawful).

6 All dates hereafter are 2000, unless otherwise indicated.
7 The evidence shows that this meeting was previously unscheduled
and was announced to bargaining unit employees on May 31, the day
after the Union’s first meeting. The bargaining unit consists of all em-
ployees working in the Respondent’s distribution department.
REGISTER GUARD 1143
II. SOLICITING EMPLOYEE GRIEVANCES AND PROMISING
TO REMEDY THEM
The judge found that the Respondent violated Section
8(a)(1) of the Act by soliciting employees’ grievances
and promising to remedy them. The Respondent argues
that no actual promises were made to remedy employees’
complaints. We agree with the judge that the Respondent
solicited grievances, promised to look into those griev-
ances, and, in fact, remedied a specific complaint raised
by employees by adding two new “core” positions.8
As noted above, the Union’s organizing campaign be-
gan in late May, and on June 1, Baker led a meeting for
all bargaining unit employees. After Human Resources
Manager Walden announced the wage increase, she
asked employees what concerns they had. Employees
expressed complaints regarding employee drug testing,
the hours of “additional” employees, wages, and training.
Employees also stated that they wanted more “core” po-
sitions, since only “core” employees receive benefits.
Baker informed the group of employees that he would
look into these concerns.
On June 7, Baker sent a letter to distribution employ-
ees about the complaints raised at the June 1 meeting. In
the letter, Baker stated that Distribution Manager Tom
Strub would look into the concerns about training and
additional “core” positions. The letter specifically re-
ferred to the Union’s organizing campaign, stating that
“[c]reating a union between you and the management of
this Company will not assure you of any more or any
faster response to your concerns.” A “suggestion form”
was enclosed with the letter, and employees were en-
couraged to submit any thoughts and concerns they had
been unable to share or believed the Respondent should
hear.
Around the same time, Distribution Manager Strub and
Human Resources Supervisor Jerry LaCamp met with
four unit employees to further discuss employee con-
cerns. Employee Bradley Barnhart testified that Strub
and LaCamp said that they wanted to discuss the possi-
bility of creating additional “core” positions. Following
this meeting, the Respondent created two new technical
support “core” positions. Two assembler “core” employ-
ees were promoted to the technical support positions, and
two “additional” employees were promoted to the “core”
positions the assemblers had vacated.
As the judge recognized, absent a prior practice of do-
ing so, an employer’s solicitation of grievances during a

8 The Respondent employs “core” employees and “additional” em-
ployees. In general, “core” employees work full time and receive com-
pany benefits, while “additional” employees work part time and do not
receive benefits. There are two types of “core” employees: assemblers
and technical support employees.
union campaign, accompanied by a promise, express or
implied, to remedy such grievances, creates an inference
that the employer is promising to redress the problems.
Laboratory Corp. of America Holdings, 333 NLRB 284
(2001). The inference that an employer that solicits
grievances in a preelection setting will remedy such
grievances is rebuttable. Uarco Inc., 216 NLRB 1, 2
(1974). That inference has not been rebutted here. In-
deed, at the June 1 meeting, the Respondent not only
solicited grievances and promised to look into the em-
ployees’ concerns, it followed up with its June 7 letter
further soliciting grievances and informing employees
that a manager would address two of their specific con-
cerns. Thereafter, the Respondent affirmatively remedied
one of the employees’ major concerns by creating two
“core” positions. Further, there is no evidence in the
record that the Respondent had previously held similar
meetings to solicit employees’ concerns about their
working conditions. Several employees testified that this
meeting was referred to as an “emergency” meeting.
Employee Barnhart testified that it had been months
since the last employee meeting had been held and that
such meetings were not regularly held.
Thus, we find that the record supports the judge’s con-
clusion that the Respondent solicited employees’ griev-
ances and promised to remedy them in violation of Sec-
tion 8(a)(1) of the Act.
III. SOLICITING EMPLOYEES TO REVOKE THEIR UNION
AUTHORIZATIONS
The judge found that the Respondent violated Section
8(a)(1) of the Act by providing employees with unsolic-
ited advice and assistance to withdraw their union au-
thorizations at the same time that it was engaging in
other unfair labor practices. We agree.
In letters dated June 7 and 16, Baker advised employ-
ees of their right to have their signatures withdrawn from
the petitions they had signed authorizing the Union to
represent them in collective bargaining. In the June 16
letter, Baker enclosed a form addressed to the Union that
employees could fill out to revoke their prior authoriza-
tions.
“An employer may lawfully inform employees of their
right to revoke their authorization cards, even where em-
ployees have not solicited such information, as long as
the employer makes no attempt to ascertain whether em-
ployees will avail themselves of this right nor offers any
assistance, or otherwise creates a situation where em-
ployees would tend to feel peril in refraining from such
revocation.” R. L. White Co., 262 NLRB 575, 576 (1982)
(footnote omitted). However, an employer may not “ex-
ceed the permissible bounds of providing ministerial or
passive aid in withdrawing from union membership.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1144
Chelsea Homes, 298 NLRB 813, 834 (1990), enfd. mem.
962 F.2d 2 (2d Cir. 1992) (violation when employer pro-
vided sample form and preaddressed envelope). The
Board may also find such advice unlawful in the context
of an employer’s commission of other unfair labor prac-
tices. L’Eggs Products, Inc., 236 NLRB 354, 389
(1978), enfd. in relevant part 619 F.2d 1337 (9th Cir.
1980) (employer’s soliciting employees to revoke au-
thorization cards was made in “inhibiting setting” be-
cause it was done “in the context of a campaign of inter-
rogations and threats”).
Here, the Respondent did more than inform employees
of their right to revoke their cards—it enclosed a sample
form with its June 16 letter for employees to use to re-
voke their union authorizations. Further, the Respondent
committed other unfair labor practices close in time to
soliciting employees to revoke their support for the Un-
ion. In this regard, the Respondent’s June 16 letter was
sent within 2 weeks of the Respondent’s unlawful solici-
tation of grievances and within 1 week of the June 11
wage increase that dampened existing support for the
Union. In these circumstances, we find that the Respon-
dent’s June 16 letter soliciting employees to withdraw
their union authorizations constituted a violation of Sec-
tion 8(a)(1) of the Act.9
IV. CREATING THE IMPRESSION OF SURVEILLANCE
The judge found that the Respondent created the im-
pression of surveillance of its employees’ union activities
when Baker stated in his June 7 letter to employees: “I
am encouraged that some employees have already re-
quested that their union signature cards be withdrawn.”
The judge found that this statement cited no source for
Baker’s knowledge that some employees had asked that
their signature cards be withdrawn, and, thus, it tended to
restrain and coerce employees by reasonably giving them
the sense that their union activities were under surveil-
lance by the Respondent. We disagree.
The Board’s “test for determining whether an em-
ployer has created an impression of surveillance is
whether the employee would reasonably assume from the
statement that their union activities had been placed un-
der surveillance.” Flexsteel Industries, 311 NLRB 257,
257 (1993). We find that the General Counsel has not
established that reasonable employees would view this
statement as implying that the Respondent was monitor-
ing their union activities. In its June 16 letter to employ-
ees, the Respondent stated: “Several Distribution De-
partment employees have shared with their supervisors

9 Given our finding that the June 16 letter constituted a violation of
Sec. 8(a)(1), we need not decide whether the June 7 letter by itself
unlawfully solicited employees to withdraw their union authorizations.
that those pushing the union petition have refused to re-
move their signature at their request.” The judge found
this statement lawful, explaining that it did “nothing
more than report what employees told supervisors.”10
We find that the General Counsel has not shown that it is
likely that reasonable employees would draw a different
conclusion about the statement in the June 7 letter.11 In
any event, any ambiguity was clarified on June 16 when
the Respondent made it clear that its knowledge came
from employee statements to supervisors. Accordingly,
we dismiss this allegation.
V. DISCHARGE OF KAMA COX
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act when it discharged employee
Kama Cox. We disagree.
Cox worked for the Respondent from September 21,
1999, until her resignation on January 19, 2000. She was
rehired and recommenced work on April 6, 2000. She
was fired on June 13—2 months into a 6-month proba-
tionary period.
As noted above, the Union’s organizing campaign be-
gan in late May. On May 30, at a union meeting, Cox
was 1 of approximately 24 employees to sign petitions
authorizing the Union to represent them. She was one of
five members of the Union’s organizing committee. Sev-
eral employees who attended this meeting took petitions
with them to get other employees to sign. Cox did not
take one of these petitions. On June 10, the Union
mailed invitations to all unit employees for a pizza party
to be held at the union hall on June 14. These invitations
listed the names of the five-member organizing commit-
tee, including Cox, and they were delivered to employees
at their homes on June 12. On the following day, June
13, Cox was fired for failing her probationary period.
We apply the Board’s Wright Line test12 to determine
if the Respondent’s discharge of Cox violates Section
8(a)(3) of the Act. Under this test, the General Counsel
bears the initial burden of proving by a preponderance of
the evidence that protected activity was a motivating
factor in the employer’s actions. To meet this burden,
the General Counsel must offer evidence of union or
other protected activity, employer knowledge of this ac-

10 As noted above, no exceptions were filed to the judge’s dismissal
of this 8(a)(1) allegation.
11 Our colleague disagrees, finding nothing in the June 7 letter to
suggest that this information was a matter of public knowledge. We
find nothing in the letter to suggest that the information was gathered
through the surveillance of employees’ union activities. Baker’s state-
ment suggests only that someone had brought this information to the
Respondent’s attention.
12 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
REGISTER GUARD 1145
tivity, and the existence of antiunion animus.13 If the
General Counsel meets his burden, the burden shifts to
the respondent to prove, by a preponderance of the evi-
dence, that it would have taken the same action, even in
the absence of protected activity.
The General Counsel has shown that Cox was a mem-
ber of the Union’s organizing committee. However, we
find that he has not established that the Respondent was
aware of such activity. The judge and our dissenting col-
league acknowledge that, on these facts, there is no direct
evidence that the Respondent knew of Cox’s union activ-
ity. They rely instead on circumstantial evidence, includ-
ing (1) the Respondent’s general knowledge of its em-
ployees’ union activities; (2) the Respondent’s antiunion
animus; (3) the timing of Cox’s discharge; and (4) al-
leged disparate treatment against Cox. It is true that, in
an appropriate case, knowledge of an employee’s union
activities may be proven by circumstantial evidence from
which a reasonable inference may be drawn. See Kajima
Engineering & Construction, 331 NLRB 1604 (2000),
and cases cited therein. This is not such a case.
The factors relied on by the judge and our colleague do
not establish, even circumstantially, that the Respondent
knew of Cox’s union activity. As to the first factor, it is
neither logical nor reasonable to leap from a general
knowledge of union activity to specific knowledge of
Cox’s union activity. There is no evidence that Cox en-
gaged in open union activity at the Respondent’s facility
or that anyone who was aware of her offsite union activ-
ity reported that activity to the Respondent. Further-
more, there is no evidence that the Respondent knew that
Cox was a member of the organizing committee.
As to the second factor, the Respondent has demon-
strated antiunion animus. However, a general finding of
animus does not by itself establish the element of knowl-
edge required under Wright Line to establish a violation
of Section 8(a)(3). As to the third factor relied on by our
colleague—timing—we decline to infer knowledge
solely on this basis. Although the discharge followed the
listing of Cox on the June 10 invitation, there is no show-
ing that the Respondent was aware of the invitation. As
to the fourth factor, as shown below, we find that Cox
was not treated disparately.
There is simply no proof that the Respondent knew of
Cox’s union activity, and, thus, the General Counsel has
not met his threshold burden under Wright Line.
“[C]redible proof of ‘knowledge’ is a necessary part of
the General Counsel’s threshold burden, and without it,
the complaint cannot survive.” Tomatek, Inc., 333 NLRB

13 Member Schaumber would refer to this as Sec. 7 animus. See
ATC/Forsythe & Associates, 341 NLRB 501 fn. 5 (2004).
1350, 1355 (2001). Further, even if the General Counsel
had met his threshold burden, the Respondent has shown
that it would have discharged Cox in any event for ex-
cessive absences during her probationary period.
Cox was serving a 6-month probationary period. She
had completed a mere 2 months of this period, during
which her absences constituted almost half of her sched-
uled worktime. In this regard, the Respondent asserts,
without contradiction, that Cox was absent or late on 43
percent of her scheduled shifts during this 2-month pe-
riod. The record shows that she had seven excused ab-
sences and six tardies/leaving early during this period.
During the week leading up to her discharge, Cox had
three excused absences, and she left early 1 day, with
permission. On June 5, Cox called Supervisor Steve
Carlson to ask if she could leave work early the follow-
ing day for a doctor’s appointment. Carlson denied Cox’s
request, stating that a “run” (extra work) precluded Cox
from taking a partial day off. Notwithstanding the de-
nial, Cox did not report for work on June 6. She did visit
the facility on June 6 to give Carlson a note from her
doctor and to pick up her paycheck. On June 7, Cox left
early, with permission, to tend to her sick son. She
missed work on June 8 and 9, as her son was still sick.
Sometime between June 9 and 13, the Respondent de-
cided to discharge Cox because she had failed her proba-
tionary period.
There is nothing to show that the Respondent acquired
knowledge of Cox’s union activity between June 9 and
13.14 Neither is there a showing that any other proba-
tionary employee had the same attendance problems as
Cox. Our dissenting colleague lists other employees
with poor attendance records who were not discharged.
However, the record fails to establish that these employ-
ees were still in their probationary periods. “An essential
ingredient of a disparate treatment finding is that other
employees in similar circumstances were treated more
leniently than the alleged discriminatee was treated.”
Thorgren Tool & Molding, 312 NLRB 628 fn. 4 (1993).
On this record, that “essential ingredient” is missing be-
cause the General Counsel has not shown the existence
of “similar circumstances,” i.e., that the “other employ-
ees” with poor attendance records were probationary

14 Our dissenting colleague speculates that the Respondent discov-
ered Cox’s union activities by learning, through the Union’s pizza party
invitation, that she was on the organizing committee. However, the
employees received that invitation at their homes the day before she
was fired. We find it unreasonable to speculate that the employees
informed the Respondent of Cox’s status on the very night that the
invitation was delivered, and that the Respondent made its decision to
fire her based upon that information, that very night.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1146
employees. Thus, we find unpersuasive our colleague’s
argument that Cox was treated disparately.15
In sum, the General Counsel has not shown that the
Respondent knew of Cox’s union activity. Even assum-
ing such knowledge, the Respondent has shown that it
would have discharged her for her poor attendance re-
cord during her probationary period. Thus, we reverse
the judge’s finding that the Respondent violated Section
8(a)(3) of the Act by discharging Cox.
VI. GISSEL BARGAINING ORDER
Based on this record, we find that a fair election can be
held after the entry of traditional remedies and that the
unlawful conduct engaged in by the Respondent—three
violations of Section 8(a)(1)—does not warrant the im-
position of a bargaining order under NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969).
Under Gissel, supra, the Board will issue a remedial
bargaining order, absent an election, in two categories of
cases. The first category is “exceptional” cases, those
marked by unfair labor practices so “outrageous” and
“pervasive” that traditional remedies cannot erase their
coercive effects, thus, rendering a fair election impossi-
ble. 395 U.S. at 613–614. The second category involves
“less extraordinary cases marked by less pervasive prac-
tices which nonetheless still have a tendency to under-
mine the majority strength and impede election proc-
esses.” Id. at 614. The dissent relies solely on the second
category. We find that this case does not fall into either
of these categories.
In determining the propriety of a bargaining order, the
Board examines the seriousness of the violations and the
pervasive nature of the conduct, considering such factors
as the number of employees directly affected by the vio-
lations; the size of the unit; the extent of the dissemina-
tion among employees; and the identity and position of
the individuals committing the unfair labor practices.
Garvey Marine, Inc., 328 NLRB 991, 993 (1999), enfd.
245 F.3d 819 (D.C. Cir. 2001); Holly Farms Corp., 311
NLRB 273, 281 (1993), enfd. 48 F.3d 1360 (4th Cir.),
cert. denied in pertinent part 516 U.S. 963 (1995). A
Gissel bargaining order, however, is an extraordinary
remedy. The preferred route is to provide traditional
remedies for the unfair labor practices and to hold an
election, once the atmosphere has been cleansed by those

15 Our colleague cites Mays Electric Co., 343 NLRB No. 20 (2004),
in support of her claim that the Respondent failed to establish it would
have discharged Cox absent her union activity. In Mays Electric, supra,
the Board found that the employer failed to prove that it had any con-
sistent policy of discharging employees with attendance records similar
to that of the discriminatee. Here, however, as we have already noted,
the record fails to establish that other employees who had poor atten-
dance records were probationary employees as was Cox.
remedies. Hialeah Hospital, 343 NLRB No. 52, slip op.
at 5 (2004), citing Aqua Cool, 332 NLRB 95, 97 (2000).
The instant case is similar to Yoshi’s Japanese Restau-
rant & Jazz House, 330 NLRB 1339 (2000), in which the
Board found that a Gissel bargaining order was not war-
ranted. In Yoshi’s, as in this case, the respondent com-
mitted several violations of the Act during a union orga-
nizing campaign. The respondent solicited grievances,
promised to remedy them, granted wage increases, inter-
rogated employees, and threatened plant closure if the
union was selected. Notwithstanding these violations, the
Board found that it had not been shown that traditional
remedies would be inadequate.
Likewise, we have declined to impose Gissel bargain-
ing orders in cases in which the violations committed
were of greater severity than the violations committed
here. For instance, in Hialeah Hospital, supra, we de-
clined to impose a Gissel bargaining order against an
employer that committed a retaliatory discharge and
many 8(a)(1) violations, including threats, surveillance,
promise of benefits, and removal of benefits. In Desert
Aggregates, 340 NLRB 289 (2003), no bargaining obli-
gation was imposed against an employer that unlawfully
solicited and promised to remedy employee grievances
and laid off two leading union supporters. In Jewish
Home for the Elderly of Fairfield County, 343 NLRB
No. 117 (2004), we refused to impose a Gissel bargain-
ing order against an employer that, among other things,
granted a unit-wide wage increase, discharged a leading
union activist the day before the election, made threats of
plant closure, and engaged in surveillance. Similarly, we
find here that a Gissel bargaining order is not necessary.
It is true, as our colleague contends, that unit employ-
ees continue to benefit from the Respondent’s unlawful
grant of the wage increase. We think it sufficient to or-
der the Respondent to withdraw the increase if that is
what the Union wants, or, if the Union wants to keep the
increase, to order the Respondent to cease such conduct
and to apprise employees of this remedy. In sum, we
find that a bargaining order is unwarranted and that tradi-
tional remedies will suffice to ensure a fair election and
erase the effects of the Respondent’s unfair labor prac-
tices.16
Finally, because we have decided not to issue a bar-
gaining order in this case, we also reverse the judge’s
findings that the Respondent violated Section 8(a)(5) and

16 The Charging Party has requested, inter alia, that the Respondent’s
publisher be required to personally read the Board notice to employees
and that the Respondent be required to publish the notice in its newspa-
per. The Charging Party also seeks reimbursement for its litigation
expenses. We find that the Charging Party has not shown a basis for
imposing these special remedies here.
REGISTER GUARD 1147
(1) of the Act by refusing to bargain with the Union and
by refusing to provide the Union with requested relevant
information.17
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, The Guard Publishing Company, d/b/a The
Register Guard, Eugene, Oregon, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Providing increased benefits to employees to en-
courage them to refrain from supporting and/or assisting
Teamsters Local Union No. 206, affiliated with the In-
ternational Brotherhood of Teamsters, AFL–CIO, or any
other labor organization.
(b) Soliciting complaints and grievances and thereby
implying that the Respondent will provide improved
benefits to employees if they refrain from supporting
and/or assisting the Union.
(c) Soliciting employees to withdraw their signatures
from the Union’s petition, and, therefore, withdraw their
support from the Union.
(d) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Eugene, Oregon, copies of the attached no-
tice marked “Appendix.”18 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

17 In light of our decision, it is unnecessary to pass on the Respon-
dent’s arguments that the Union did not enjoy the support of a majority
of unit employees, that the composition of the unit has changed, and
that the passage of time and changed circumstances have nullified any
“lingering effects” of any alleged unfair labor practices.
18 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.”
to all current employees and former employees employed
by the Respondent at any time since June 1, 2000.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
MEMBER LIEBMAN, dissenting in part.
Respectfully, I differ with the majority on three issues:
whether the Respondent unlawfully created the impres-
sion of surveillance, whether it unlawfully discharged
employee Kama Cox, and whether a bargaining order
pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), is appropriate to remedy all of the Respondent’s
unfair labor practices. Because I would sustain the
judge’s decision on each of these issues, I dissent.
I. CREATING THE IMPRESSION OF SURVEILLANCE
As the majority correctly finds, Publisher and Editor
Tony Baker, the Respondent’s highest ranking official,
sent a June 7, 20001 letter to employees that violated
Section 8(a)(1) of the Act by soliciting employees’
grievances and promising to remedy them. In this same
letter, the Respondent stated: “I am encouraged that
some employees have already requested that their union
signature cards be withdrawn.” The judge correctly
found that by this statement the Respondent unlawfully
created the impression of surveillance.
The Board does not require that an employer’s words
to an employee reveal on their face that the employer
acquired its knowledge of the employee’s activities by
unlawful means. See United Charter Service, 306 NLRB
150, 151 (1992). Rather, an employer creates an impres-
sion of surveillance by indicating that it is closely moni-
toring the degree of an employee’s union involvement.
See Emerson Electric Co., 287 NLRB 1065, 1065
(1988). “The idea behind finding ‘an impression of sur-
veillance’ as a violation of Section 8(a)(1) of the Act is
that employees should be free to participate in union or-
ganizing campaigns without the fear that members of
management are peering over their shoulders, taking note
of who is involved in union activities, and in what par-
ticular ways.” Flexsteel Industries, 311 NLRB 257, 257
(1993).
When Baker revealed in his June 7 letter that he knew
that some employees had requested that their union au-
thorization cards be withdrawn, an employee reasonably

1 All dates hereafter are 2000, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1148
would conclude, on reading the letter, that someone in
management acquired this information through monitor-
ing or eavesdropping on private conversations between
employees, or through questioning of employees. Noth-
ing in the letter suggests that this information, which
normally would have been communicated between em-
ployees in private conversations, was a matter of public
knowledge.2 Accordingly, I would affirm the judge’s
finding of a violation.
II. DISCHARGE OF KAMA COX
In analyzing Cox’s discharge pursuant to Wright Line,3
the majority does not dispute that the General Counsel
has established that Cox was engaged in union activity
and that the Respondent demonstrated antiunion animus.
However, my colleagues find no proof that the Respon-
dent knew of Cox’s union activity and that, even if there
was such proof, the Respondent has met its Wright Line
rebuttal burden. I disagree. There is compelling circum-
stantial evidence that the Respondent knew Cox was en-
gaging in union activities. Further, in my view, the Re-
spondent has failed to establish that it would have dis-
charged Cox absent those activities. Therefore, I would
find that it discharged her because of those activities, in
violation of Section 8(a)(3) and (1) of the Act.
Cox initially worked for the Respondent on the night
shift from September 21, 1999, to January 19, 2000. Dur-
ing this time, she was a single mother attending school
and had attendance problems. She was never warned or
disciplined for these problems. When working the night
shift became too difficult, she voluntarily resigned. She
reapplied in April, was immediately rehired, and began
work on April 6. No mention of her prior attendance
problems was made.
Cox attended the Union’s first meeting on May 30.
She signed the Union’s petition and volunteered to be on
the Union’s organizing committee.
On June 3, Cox called in sick with a severe al-
lergy/asthma attack. On Monday, June 5, she called Su-
pervisor Steve Carlson and told him that she could not
get a doctor’s appointment until 2 p.m. the following day
and would need to leave work early that day. Carlson
told Cox that she either had to work the entire day or take
the entire day off because they had a “run” that day,
meaning an extra load of work. Cox replied that they
never had runs on Tuesdays and that there was no run on

2 The majority asserts that Baker made it clear in his June 16 letter
that the source of his knowledge was reports by some employees to
their supervisors. Such later disclosure is immaterial: employees had
already been chilled in the exercise of their Sec. 7 rights by the state-
ment in the June 7 letter.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
the schedule. When Carlson insisted, Cox said she
needed to see the doctor and would take the whole day
off. On June 6, Cox called the Respondent’s human re-
sources department and complained to Supervisor Jerry
LaCamp about Carlson’s denying her permission to leave
work early for a doctor’s appointment. LaCamp told Cox
to talk with Distribution Manager Tom Strub when he
returned from vacation the following week. Later that
day, Cox went to the Respondent’s facility to give Carl-
son a doctor’s note and to pick up her paycheck. While
there, Cox discovered that, contrary to Carlson’s asser-
tion, there had been no run that day.
The following day, June 7, Cox was called by her
son’s daycare provider and informed that he was ill. She
obtained permission to leave work early to get him, and
for the next 2 days, Cox telephoned Carlson that her son
was still sick and that she would not be coming to work.
Carlson told her that she could come in on her next
scheduled workday, Tuesday, June 13.
Meanwhile, on June 10, the Union had mailed invita-
tions to all unit employees for a pizza party to be held on
June 14 at the union hall. The invitation listed the names
of the five organizing committee members, including
Kama Cox. The invitations were delivered to employees’
homes on June 12.
When Cox returned to work on June 13, she was met
in the parking lot by Supervisors Strub and Carlson. Cox
started to hand Strub the doctor’s excuse for her son’s
illness, but he refused to accept it. Cox was then told that
she was discharged for failing her probationary period.
On this record, the judge found that the Respondent
unlawfully discharged Cox because of her union activi-
ties. The Respondent argues, and my colleagues agree,
that the Respondent did not know that Cox was engaged
in union activity. I disagree.
It is true that there is no direct evidence of such
knowledge. However, it is well settled that a reasonable
inference of such knowledge may be drawn from circum-
stantial evidence. See Dr. Frederick Davidowitz, D.D.S.,
277 NLRB 1046, 1049 (1985); BMD Sportswear Corp.,
283 NLRB 142 (1987), enfd. mem. 847 F.2d 835 (2d Cir.
1988). The Board has inferred knowledge based on such
circumstantial evidence as: (1) a respondent’s general
knowledge of its employees’ union activities; (2) the
respondent’s antiunion animus; (3) the timing of the al-
legedly discriminatory action; and (4) disparate treat-
ment. See Greco & Haines, Inc., 306 NLRB 634 (1992).
Applying these criteria here, I would find, as did the
judge, compelling circumstantial evidence that warrants
an inference that the Respondent knew that Cox was en-
gaging in union activities and that it discharged her be-
cause of those activities.
REGISTER GUARD 1149
First, the evidence clearly establishes that the Respon-
dent knew generally of the Union’s organizing efforts.
This knowledge is evidenced by Baker’s May 31 letter
that states: “It has been brought to my attention that a
few employees have been talking about representation by
a union.”
Second, there is ample evidence of the Respondent’s
union animus. The Respondent unlawfully granted a
wage increase; unlawfully solicited employees’ griev-
ances and remedied them; and unlawfully solicited em-
ployees to withdraw their union authorizations. As the
judge found, the Respondent acted to thwart the organiz-
ing efforts of its employees immediately upon learning of
such efforts.
Third, the timing of Cox’s discharge provides very
strong evidence to infer that the Respondent knew of
Cox’s support of the Union. Her discharge occurred
within 2 weeks after she volunteered to be on the union
organizing committee, and 1 day after invitations to a
union pizza party that stated that Cox was a member of
the Union’s organizing committee were delivered to em-
ployees.4 Cox was fired when she arrived for work the
following day.
Lastly, knowledge of Cox’s union activity is estab-
lished by evidence of disparate treatment. Cox had no
unexcused absences, seven excused absences, and six
tardies/leaving early in 2 months. However, the record
shows numerous other employees with similar or worse
absentee problems. Adam McCabe had three unexcused
absences, five excused absences, and two tardies/leaving
early in 6 months; Wendy Sprenger had 4 unexcused
absences, 10 excused absences, and 2 tardies/ leaving
early in 8 months; Heather Stewart had two unexcused
absences, four excused absences, and three tar-
dies/leaving early in 4 months; and Johny Susanto had 6
unexcused absences, 11 excused absences, and 3 tar-
dies/leaving early in 4 months. These employees were
still employed by the Respondent at the time of the hear-
ing, and the Respondent offered no explanation for why
Cox, who had no unexcused absences, was treated differ-
ently.5

4 The majority claims it is speculation to assert that the Respondent
learned of Cox’s union involvement through her name appearing on the
Union’s pizza party invitation that was delivered to employees the day
before she was fired. As detailed above, various factors warrant the
inference that the Respondent knew of Cox’s union activities. The
timing of the discharge, 1 day after the invitations were delivered, is but
one of these factors.
5 The majority argues that the record does not show that the other
employees with poor attendance records were probationary employees
like Cox. However, the record also does not show that the attendance
standards the Respondent applied to probationary employees were
different from the ones applied to nonprobationary employees. In fact,
at the hearing, the Respondent offered no witnesses to explain why Cox
Accordingly, for all of the foregoing reasons, I con-
clude, contrary to the majority, that the General Counsel
has satisfied his initial Wright Line burden of proving
that the Respondent knew of Cox’s union activities and
that her discharge was unlawfully motivated. I would
also find that the Respondent failed to meet its rebuttal
burden of establishing that it would have discharged Cox
regardless of those activities.
The Respondent had no policy mandating discipline or
discharge after a certain number of absences. As detailed
above, other employees with similar numbers of ab-
sences were not discharged. Further, it is significant that
Cox was immediately rehired in April despite a history
of absences while serving a probationary period during
her first term of employment and without any mention of
such history. At that time, when she had not engaged in
any union activity, her absences apparently were of no
concern to the Respondent. There is also no evidence that
Cox was ever counseled about her absences after she
returned to work for the Respondent. However, within 2
weeks of engaging in union activity, and 1 day after all
employees were advised that Cox was on the Union’s
organizing committee, the Respondent suddenly found
that her absences warranted her discharge. Even ac-
knowledging that Cox’s attendance record was poor, I
would find that the Respondent has not established that it
would have discharged her for this reason absent her
union activity.6 Thus, I would affirm the judge’s finding
that the Respondent discharged Cox in violation of Sec-
tion 8(a)(3) of the Act.
III. GISSEL BARGAINING ORDER
The nature and extent of the Respondent’s unfair labor
practices warrant the imposition of an affirmative bar-
gaining order. See NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). As the majority finds, the Respondent
unlawfully granted a unit-wide wage increase; solicited
employee grievances and promised to remedy them; and
solicited employees to withdraw their union authoriza-
tions. In my view, the Respondent also unlawfully cre-
ated the impression of surveillance and unlawfully dis-
charged a leading union activist. The wage increase and
the discharge are “hallmark” violations of the Act, which
will normally support the issuance of a bargaining order.

was treated more harshly than the other employees with worse atten-
dance records or otherwise explain the reasoning and timing for her
discharge. Therefore, on this record, the General Counsel has estab-
lished a prima facie case of disparate treatment, and the Respondent has
not rebutted it.
6 See Mays Electric Co., 343 NLRB No. 20 (2004) (employer
unlawfully discharged employee who had spotty attendance record,
where employer failed to prove that it had consistent policy of dis-
charging employees with attendance records similar to that of em-
ployee).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1150
See NLRB v. Jamaica Towing, 632 F.2d 208, 212–213
(2d Cir. 1980) (grant of benefits and discharge of union
adherent considered “hallmark” violations); Scott v.
Stephen Dunn & Associates, 241 F.3d 652, 666 (9th Cir.
2001) (wage increase designed to impact the outcome of
a representation election is “hallmark” violation and is as
“highly coercive” in its effect as discharges or threats of
business failure).
Further, the severity of the Respondent’s unlawful
conduct is exacerbated by the involvement of its high-
ranking official. Here, Tony Baker, the Respondent’s
editor and publisher, participated in each of the unfair
labor practices committed. He conducted the June 1
meeting at which he solicited grievances and promised to
remedy them, and at which the wage increase was an-
nounced. He wrote the letters that unlawfully solicited
employees to revoke their union authorizations and that
unlawfully created the impression that employees’ union
activities were under surveillance, and he authorized the
discharge of Cox, a leading union activist. “When the
anti-union message is so clearly communicated by the
words and deeds of the highest levels of management, it
is highly coercive and unlikely to be forgotten.” Consec
Security, 325 NLRB 453, 455 (1998), enfd. mem. 185
F.3d 862 (3d Cir. 1999).
It is also significant that most of the unfair labor prac-
tices committed by the Respondent affected the entire
bargaining unit. The wage increase was granted to all
employees. Likewise, the Respondent’s letters that solic-
ited employees to withdraw their union authorizations
and that created the impression of surveillance were sent
to all employees, and the Respondent solicited employee
grievances at a meeting for the entire bargaining unit. It
is well settled that where a substantial percentage of em-
ployees in the bargaining unit are directly affected by an
employer’s serious unfair labor practices, the possibility
of holding a fair election decreases. Cogburn Healthcare
Center, 335 NLRB 1397, 1399 (2001); NLRB v. General
Fabrications Corp., 222 F.3d 218, 233 (6th Cir. 2000),
enfg. 328 NLRB 1114, 1115 (1999) (serious unfair labor
practices directly affected entire bargaining unit).
The Board’s traditional remedies cannot eradicate the
impact of the Respondent’s unlawful conduct. “Unlaw-
fully granted benefits have a particularly long-lasting
effect on employees and are difficult to remedy by tradi-
tional means not only because of their significance to the
employees, but also because the Board’s traditional
remedies do not require a respondent to withdraw the
benefits from the employees.” Parts Depot, Inc., 332
NLRB 670, 675 (2000). Wage increases thus serve as a
constant reminder of the Respondent’s use of economic
weapons to defeat the Union. As the Board has declared,
“[i]t is difficult to conceive of conduct more likely to
convince employees that with an important part of what
they were seeking in hand union representation might no
longer be needed.” Tower Records, 182 NLRB 382, 387
(1970), enfd. 1972 WL 3016 (9th Cir. 1972).
For these reasons and for the reasons discussed by the
judge, it is unlikely that the effects of the Respondent’s
unlawful conduct can be erased by the use of traditional
remedies and that a fair election could be held. Gissel,
supra, 395 U.S. at 614–615.7 Accordingly, I would adopt
the judge’s recommendation to issue a remedial bargain-
ing order. I would similarly adopt the judge’s findings
that the Respondent violated Section 8(a)(5) by refusing
to bargain with the Union and by failing to provide re-
quested relevant information.
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 provide increased benefits to employees
to encourage them to refrain from supporting and/or as-
sisting Teamsters Local No. 206, affiliated with the In-
ternational Brotherhood of Teamsters, AFL–CIO, or any
other labor organization.
WE WILL NOT solicit complaints and grievances from
our employees and thereby imply that we will provide

7 The majority finds this case similar to Yoshi’s Japanese Restaurant
& Jazz House, 330 NLRB 1339 (2000). Because I would find that the
Respondent here engaged in a “hallmark” violation when it discharged
Cox, Yoshi’s is distinguishable.
The majority cites Hialeah Hospital, 343 NLRB No. 52 (2004); De-
sert Aggregates, 340 NLRB 289 (2003); and Jewish Home for the
Elderly of Fairfield County, 343 NLRB No. 117 (2004), as cases in
which the Board declined to impose Gissel bargaining orders. I dis-
sented from the Board’s failure to impose Gissel bargaining orders in
Hialeah Hospital and Desert Aggregates. I did not participate in Jew-
ish Home, but I agree with the dissent in that case that a Gissel order
should have been imposed.
REGISTER GUARD 1151
improved benefits to employees if they refrain from sup-
porting and/or assisting the Union.
WE WILL NOT solicit employees to withdraw their sig-
natures from the Union’s petition, and, therefore, with-
draw their support from the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
THE GUARD PUBLISHING COMPANY, D/B/A THE
REGISTER GUARD
Linda J. Scheldrup, Esq., for the General Counsel.
William H. Bruckner, Esq. and Glen Plosa, Esq., for the Re-
spondent.
David A. Rosenfeld, Esq. and Stefan Ostrach, for the Charging
Party Union.
DECISION1
ALBERT A. METZ, Administrative Law Judge. This case in-
volves issues of whether the Respondent has violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act).2 On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the par-
ties’ briefs, I make the following findings of fact.
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent, an Oregon corporation, is engaged in the
business of publishing newspapers. The Respondent operates a
facility in Eugene, Oregon, and employs approximately 400
persons at this location. Most of the Respondent’s Eugene em-
ployees are represented by unions but the distribution depart-
ment employees are not.
The Respondent admits, and I find, that the following indi-
viduals were its supervisors and agents at the times relevant to
this case: Alton F. (Tony) Baker III, editor and publisher; R.
Fletcher Little, general manager; Cynthia Walden, human re-
sources director; Thomas Strub, distribution department man-
ager; Steve Carlson, supervisor; and Jerry LaCamp, supervisor.
III. APPROPRIATE UNIT
The Government’s complaint alleges that the following unit
is appropriate for collective-bargaining purposes within the
definition of Section 9(b) of the Act:
All distribution employees employed by the Employer at its
Eugene, Oregon location; excluding office clerical employees,
transportation helpers, bundle haulers, professional employ-
ees, guards and supervisors as defined in the Act.

1 This case was heard at Eugene, Oregon, on December 4–6, 2000.
All dates herein refer to the year 2000, unless otherwise stated.
2 29 U.S.C. § 158 (a)(1), (3), and (5).
The Board conducted a stipulated election in this unit in
1995. The Respondent signed that stipulation. The record sup-
ports the conclusion that the distribution employees have con-
tinued since 1995 to perform the same work under basically the
same supervision. They are a distinct work group within the
Eugene facility. Distribution employees occupy job classifica-
tions of technical support employees, core employees, and ad-
ditional employees. Their work relates to counting, putting
inserts in the newspapers, bundling, and stacking. The papers
are then forwarded to transportation helpers whose job it is to
see that the newspapers are placed on the trucks of independent
contractors for distribution. Transportation helpers work in the
circulation department that is represented by a different union.
The Respondent’s other production employees are also repre-
sented by other labor organizations.
The Respondent denies the appropriateness of the distribu-
tion department unit but does not specify its objections to the
unit. The Respondent does not urge that any other unit is the
appropriate unit. I find, based on the record as a whole, that the
described distribution department unit is an appropriate unit for
purposes of collective bargaining under the Act. Overnite
Transportation Co., 322 NLRB 723 (1996); NLRB v. Carson
Cable TV, 795 F.2d 879 (9th Cir. 1986).
IV. MAJORITY STATUS
The Respondent argues that the Union was never legiti-
mately authorized by a majority of the distribution department
employees to be their collective-bargaining representative. As
of June 1, 2000, there were 60 employees in the distribution
unit. The Government asserts that the Union obtained majority
support by June 1 because on that date 41 of the 60 unit em-
ployees had signed petitions authorizing the Union to bargain
for them.
In May 2000, some of the distribution employees contacted
the Union about obtaining union representation. Approximately
25 of these employees met with Union Representative Stephan
Ostrach on May 30. Ostrach told the employees that his organi-
zation had sought to represent the distribution employees in
1995 but had ultimately lost a Board-conducted representation
election. Ostrach emphasized to the employees that in order to
consider proceeding with another organizational effort the Un-
ion would need 70 percent of the distribution employees to sign
authorization petitions.
Ostrach told the employees to sign the petitions if they
wanted the Union to represent them. The following 24 employ-
ees signed petitions at the union meeting: Troy Amburn, Brad-
ley E. Barnhart, Marcus Bladow, Clarence Copple, Kama Cox,
Michael R. Dorman, Tom Dorman, Jason Fairchild, Manuelito
Go, Shawn Hand, Stephen Kucera, Andy Kumler, Jeff Kumler,
June Kundert, Adam McCabe, Shari Millican, Fernandita
Nichols, Jason Picraux, Mike Primrose, Blake C. Schwab, Mi-
guel C. Singson, George Szuatsek, Shiella May Troyo, and
Robert Warner. I find that the signatures of these 24 employees
were properly authenticated and shall be counted in determin-
ing the Union’s majority status.
The petitions were then taken to work by some of the em-
ployees to obtain additional signatures from fellow workers.
The Respondent’s brief argues that some of the employees who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1152
subsequently signed the petitions did so, “believing that they
were only authorizing a vote on whether to be represented by
the Teamsters because of the representations made by the per-
sons who solicited their signatures.” The Respondent’s brief is
limited as to specifics in support of that argument, but does
state, “Union adherents repeatedly told employees that the sign-
ing of the petition was just to get a vote. In fact, Marcus
Bladow testified that he told employees to ignore the language
on the petition.” The Government asserts that the subsequent
petition signers were not misled by statements of solicitors and
that the signers are bound by the printed language at the top of
the petitions.
The petitions the distribution employees signed are headed
with the following language:
The undersigned hereby authorize the International Brother-
hood of Teamsters, Local Union No. 206 as their representa-
tive to bargain collectively with their employer on their behalf
and to negotiate agreements concerning wages, hours, and all
other conditions of employment.
The Board has previously held, with court approval, that
such petitions are unambiguous, single-purpose authorization
petitions. Ona Corp. v. NLRB, 729 F.2d 713, 723–724 (11th
Cir. 1984).
In NLRB v. Gissel Packaging Co., 395 U.S. 575, 606–607
(1969), the Supreme Court stated the following regarding union
authorizations:
[E]mployees should be bound by the clear language of what
they sign unless that language is deliberately and clearly can-
celed by a union adherent with words calculated to direct the
signer to disregard and forget the language above his signa-
ture. There is nothing inconsistent in handing an employee a
card that says the signer authorizes the union to represent him
and then telling him that the card will probably be used first to
get an election. . . .
The Board set forth its views on the same subject in DTR In-
dustries, 311 NLRB 833 (1993):
Thus, where the card on its face clearly declares a purpose to
designate the union as collective-bargaining representative,
the only basis for denying face value to the authorization card
is affirmative proof of misrepresentation or coercion. Levi
Strauss & Co., 172 NLRB 732, 733 (1968). In Levi Strauss,
the Board explained and reaffirmed the Cumberland Shoe
doctrine (144 NLRB 1268 (1963), enf. 351 F.2d 917 (6th Cir.
1965)) in the context of unambiguous, single-purpose au-
thorization cards. The Board stated:
Declarations to employees that authorization cards are
desired to gain an election do not under ordinary cir-
cumstances constitute misrepresentations either of fact
or of purpose. As in the instant case, where the Union
did use the evidence of employee support reflected by
the cards to get an election, such declarations normally
constitute no more than truthful statements of a concur-
rent purpose for which the cards are sought. That pur-
pose, moreover, is one that is entirely consistent with
the authorization purpose expressed in the cards, as
well as with the use of the cards to establish majority
support. A point sometimes overlooked is that in basic
purpose there is no essential difference between cards
that are needed for a showing of interest to gain an
election and cards that must be used to support a ma-
jority designation showing in a Section 8(a)(5) com-
plaint proceeding. . . .
Regarding the challenged authorizations in the present case,
the record shows that subsequent to the May 30 union meeting
employee Shiella Troyo solicited fellow workers James Gray,
Chris Munoz, Abe Huerta-Guzman, Sam Plesner, Dan Plesner,
and Amber Plant, to sign the Union’s representation petitions.3
Troyo witnessed them all sign the petition. Troyo testified that
she told the employees, “[I]f you sign the petition, that you are
saying . . . that you would like the Union to represent you, also
added as a vote to get a union into the building.” Troyo testified
that she never told anyone that she solicited to ignore the writ-
ten heading on the petition.
James Gray testified that Troyo did not tell him signing had
anything to do with getting a vote, but rather, “She said we had
to get everything filled out before we could see how many peo-
ple would go for a union there.” Gray’s testimony also authen-
ticated his own signature on the petition. I find that Gray’s
signature shall be counted in determining the Union’s majority
status.
Munoz and Guzman did not testify and no evidence was pre-
sented to attack the authenticity of their signatures. The signa-
tures of Guzman and Munoz were placed on the petition be-
tween signatures dated May 30 and June 1. I find that they
signed the petition no later than June 1. As discussed in detail
below, on June 1 the Respondent announced raises for unit
employees. Thereafter, Munoz and Guzman requested that their
names be removed from the petition. Based on my findings set
forth infra, that the raise announcement is an unfair labor prac-
tice, I find that the revocations of the signatures of Munoz and
Guzman were ineffective in eliminating their being counted for
determining the Union’s majority status. Dlubak Corp., 307
NLRB 1138, 1138 fn. 2 (1992), enfd. mem. 5 F.3d 1488 (3d
Cir. 1993). Considering Troyo’s unrebutted testimony regard-
ing their signing of the petitions, I find that the signatures of
Munoz and Guzman shall be counted in determining the Un-
ion’s majority status.
Dan Plesner testified Troyo told him, “[I]t’s a petition to get
enough signatures to get—to have a vote. You know what I
mean? It wasn’t a vote. It was a petition to get enough people
to vote. Supposedly we had to have two-thirds of that depart-
ment in order for us to get a chance to vote.” When asked about
the two-thirds, he responded, “[W]ho wanted the union or who
was interested in the union.” I find that, even crediting Dan
Plesner’s version of what was said to him, he was not told,
either explicitly or in substance, that the petition would be used
only or solely for an election or vote. I find that Dan Plesner’s
signature shall be counted in assessing the Union’s majority

3 The Government’s brief notes that Anastasia (Annie) Wilcox also
signed the petition, but on June 2. The Government states that it, thus,
does not rely on her signature as part of its proof of the Union’s June 1
majority status.
REGISTER GUARD 1153
status. NLRB v. Anchorage Times, 637 F.2d 1359, 1368–1369
(9th Cir. 1981).
Sam Plesner testified Troyo asked him, “Do you want to sign
so we can get a vote for the union, basically.” Sam Plesner’s
demeanor and testimony demonstrated his confusion as to the
purpose of the petition. Considering the credited testimony of
Troyo as to what she told persons that she solicited for signa-
tures, and Sam Plesner’s testimony which did not state that he
was told the only purpose of the petition was to secure a vote, I
find that his signature shall be counted in determining the Un-
ion’s majority status.
Amber Plant testified that she supported the Union and read
the heading at the time she signed the petition. She also testi-
fied that there was a discussion about getting a vote at the same
time. It is clear that Plant supported the Union when she signed
and that nothing was told to her that would invalidate the lan-
guage that stated the purpose of the petition. I find that Plant’s
signature shall be counted in determining the Union’s majority
status.
David Meeks testified that employee Marcus Bladow solic-
ited him to sign the petition. Meeks read the petition before he
signed and recalled being told by Bladow that he should sign if
he was interested in bringing in the Union. I find that Meeks’
signature shall be counted in determining the Union’s majority
status.
Brian Adkisson testified that he was not asked to sign the pe-
tition, but, “I signed it.” He further testified that he could not
remember if he read the petition before signing. Adkisson re-
called discussing the petition with employee Bradley Barnhart
who had presented it to him. He remembered Bradley saying
the petition was for a vote for the Teamsters Union. I find Ad-
kisson was not told that his signature was for a purpose con-
trary to the stated purpose of the petition. I find his signature
shall be counted in determining the Union’s majority status. It
is noted that Adkisson subsequently asked that his signature be
removed from the petition after he received a wage increase
from the Respondent.
Daniel Black authenticated his signature on the petition. He
testified that he supported the Union at the time he signed and
that he was told that the purpose of the petition was “to bring
forth some sort of election or something to decide if the distri-
bution crew was going to have a union or not.” I find that
Black’s signature shall be counted in determining the Union’s
majority status.
John (Richie) Carr authenticated his signature on the peti-
tion. He testified that he read it when he signed, and that he was
told the petition was “supposed to be signed to see if we could
vote for—see if the union will represent us.” I find that Carr’s
signature is valid and shall be counted in determining the Un-
ion’s majority status.
Cecilia Winzer testified that she signed the petition after be-
ing told, “they said that they were trying to get signatures to see
if there was enough people for the Union.” I find that Winzer’s
signature shall be counted in determining the Union’s majority
status.
Andy Kumler was originally a supporter of the Union. He
subsequently was given a $2.20 per raise by the Respondent.
He thereafter asked that his name be removed from the petition.
Kumler testified that he solicited signatures from several em-
ployees. All but one of the employees in question that he solic-
ited (Cecilia Winzer, John Richie Carr, and Brian Adkisson)
authenticated their own signatures. The exception is Wendy
Sprenger who did not testify at trial. I have already found the
signatures of Winzer, Carr, and Adkisson are valid. Kumler
testified at one point that he told employees that signing the
petition was “only to get a vote.” In contrast, on direct exami-
nation he testified, “I told them that it was a petition to have a
vote—if we had enough signatures, then to show the union that
there was enough interest and we would have a vote to have
them be our collective bargaining [representative].” He did not
specifically testify as to what, if anything he told Sprenger
when she signed the petition in his presence. I found Kumler to
be a vacillating and unsure witness. Based upon his admission
that he told employees that the purpose of the petition was to
“show the union that there was enough interest” and “have
them be our collective bargaining” representative, I find that
the Respondent has failed to carry its burden of demonstrating
that Sprenger’s signature should be invalidated. Photo Drive
Up, 267 NLRB 329, 364 (1983) (“It is the Respondent who
must show clear and convincing evidence of material misrepre-
sentations to invalidate otherwise unambiguous authorization
cards.”); Waste Management of Utah, Inc., 310 NLRB 907, 910
fn. 128 (1993); NLRB v. Gissel Packaging Co., 395 U.S. 575,
584 (1969) (Authorization signatures will be counted, “unless it
is proved that the employee was told that the card was to be
used solely for the purpose of obtaining an election. . . . [Em-
phasis in original.]) I find that Sprenger’s signature shall be
counted in determining the Union’s majority status.
Marcus Bladow solicited the signatures of Adam Bacon,
Mike Crow II, Mathew Pearson, Nathan Ramirez, and Jennifer
Stephenson. Bladow testified that he had a general statement
he made to some persons he solicited to sign the petition. He
recalled saying, “[T]his is to organize a vote for the Register-
Guard to see if we want a union.” Bladow recalled some em-
ployees simply signed the petition without him having to say
anything. Other, unspecified persons, questioned him about
signing because they read the petition to mean that signing was
an affirmation they wanted the Union. Bladow testified he
would tell these persons, “No, this is not a vote. This was to
bring in the vote. . . . We have to have so many signatures even
to get the vote.” The authenticity of the signatures of the above-
named persons that Bladow talked to are not questioned. The
Respondent presented no evidence that any of these individuals
were the persons with whom Bladow discussed an election. Nor
does the record as a whole reflect that Bladow’s statements
concerning an election overrode the clear language in the head-
ing of the petition. In sum, I find that the Respondent did not
meet its burden of showing by clear and convincing evidence
that the signatures of Bacon, Crow, Pearson, Ramirez, and Ste-
phenson should not be counted in determining the majority
status of the Union. Photo Drive Up, supra. I find, therefore,
that their signatures shall be counted for such purposes.
In summary, I find that on June 1, 2000, the Union had ob-
tained 41 valid signatures on the authorization petitions from
Respondent’s 60 distribution center employees. The authoriza-
tion petitions contained the above-quoted unambiguous repre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1154
sentation language. I find, therefore, that the Union was the
majority representative of the unit employees as of June 1,
2000.
V. WAGE INCREASES AND OTHER ALLEGED UNFAIR
LABOR PRACTICES
A. Background Regarding Wage Increases
Employee Andy Kumler testified that in April 2000 he asked
Distribution Center Manager Tom Strub about possible wage
increases. Strub told him that wage increases were “in the
workings” and he would pass along the employees’ wage con-
cerns to Supervisor Jerry LaCamp. Employee Bradley E. Barn-
hart testified that he had met with Human Resources Manager
Cynthia Walden and LaCamp, approximately the middle of the
week prior to the May 30 union meeting. Barnhart described
how he had complained to Walden and LaCamp that the distri-
bution employees had not yet received a wage increase. Walden
told him that the Respondent was still conducting a survey and
comparing wages with other companies. As noted above, start-
ing on May 30 the employees began signing union authoriza-
tion petitions.
B. Respondent’s May 31 Letter
On May 31, Tony Baker, Respondent’s editor and publisher
addressed a letter to all of the unit employees. The letter stated
that Baker had learned that a few employees had been talking
about union representation and the Respondent:
. . . will oppose, by all lawful means, the organization of our
Distribution Center employees by a labor union. . . .
. . . .
You voted down union representation a few years ago
and I sincerely hope that we do not have any election this
year.
. . . .
If you have made a mistake by signing a [union au-
thorization] card you have the right to ask for the card
back or to withdraw your signature. If you have not signed
anything I urge you not do so.
Its also come to my attention that Guild officers (a un-
ion representing another unit of Respondent’s employees)
and retirees are encouraging you. Be smart. The Guild
contract has expired and those employees have had no pay
raise for two years. Don’t let yourself be “used.”
I thought it would be helpful for you to know my feel-
ings on this issue.
C. Respondent’s June 1 Employee Meeting
On June 1, the Respondent held a meeting with the distribu-
tion employees. Tony Baker conducted the meeting and Gen-
eral Manager R. Fletcher Little, Jerry LaCamp, and Cynthia
Walden were also present. The Respondent has historically held
meetings with the distribution department employees at irregu-
lar intervals.
Barnhart testified about the events preceding the meeting and
what occurred during the meeting. I found Barnhart to be a
witness who accurately described what he observed without
embellishment. His demeanor was persuasive and I credit his
testimony regarding what took place during the June 1 em-
ployee meeting. Other employees also testified to what hap-
pened during the meeting. Their testimony was generally con-
sistent with Barnhart’s description of the event. To the extent
that their testimony conflicts with Barnhart, I credit Barnhart’s
testimony of what took place. None of the Respondent’s super-
visors testified at the hearing.
Barnhart recalled he first learned of the meeting when he
was at work on May 31. He asked Supervisors Dirk Winters,
Clayton Johnson, and Rex Loy what the meeting was about.
They all responded that it may have something to do with the
union effort.
Barnhart testified that the June 1 meeting commenced with
Walden discussing overhead projections that outlined wage
increases over a 5-year period in the distribution department.
Another transparency contrasted the wage increases of the dis-
tribution department with the other departments in the plant that
are represented by unions. The Government subpoenaed all
such overhead transparencies. The Respondent produced only
one, stating it was the single item that could be located. That
transparency showed the raises the distribution employees had
received effective January 31, 1999. (GC Exh. 14.) Walden
announced to the employees that they were going to be receiv-
ing wage increases effective June 11.
The Respondent’s history of granting wage increases to dis-
tribution center employees and the raises announced on June 1,
2000, are set forth in the following table:
REGISTER GUARD 1155
Barnhart asked why in previous years the raises had been
granted in January and February, but when the employees
started talking about union representation they received a raise
in June. Walden answered that it took a long time to do the
wage survey.
The Respondent’s human resources administrative assistant,
Vickie LeBlanc, testified regarding the wage increases. In sum,
she related that the wage survey was delayed in 2000 because
the human resources department was occupied with other mat-
ters (another bargaining unit’s retirement issues, open enroll-
ment of a medical plan, a workers compensation case, and
FLSA litigation). The Respondent offered no evidence about
the details of a wage survey or the timing and the amount of the
raises given distribution center employees.
After Walden discussed the raises Baker talked with the em-
ployees about concerns they had. No agent of the Respondent
testified about what was said at the June 1 meeting. The em-
ployees’ testimony shows that the Respondent did not promise
to solve the issues raised, Baker did, however, state that he
would look into the concerns expressed.
Employees had questions concerning the need for drug test-
ing, “additional” employees (limited-hours employees) getting
more hours of work than full-time employees, and the issue of
training. Barnhart explained that training was a concern of em-
ployees because the more training a person received the higher
his wage level. The issue of getting more “core” positions was
also raised (core employees receive company benefits). An-
other employee asked why the employees at this meeting were
being served pizza and sodas, since the last time that had hap-
pened was when the employees had been engaged in union
activity. The record reflects that employees had received re-
freshments at other employee meetings.
D. Baker’s June 7 Letter
On June 7 Baker sent another letter to the distribution em-
ployees in which he noted that employees had raised several
issues at the June 1 meeting. Baker’s letter particularly men-
tioned the issues of training and core positions and states that
Distribution Manager Tom Strub would be looking into those
concerns. Baker’s letter again emphasized his position on union
organization: “I want to reiterate that I believe a union in the
distribution center is not in your best interest or in the Com-
pany’s best interest. Creating a union between you and the
management of this Company will not assure you of any more
or any faster response to your concerns.” The letter concludes
by noting that a suggestion form is enclosed and invites the
employees to submit their “thoughts” and “concerns” to the
Respondent.
About a week after the June 1 meeting the Respondent met
with employees to discuss employee concerns. Barnhart testi-
fied that he met with Supervisors Tom Strub and Jerry LaCamp
who discussed with him the possibility of creating additional
core positions for employees. Shortly after the June 1 meeting
the Respondent created two additional technical support posi-
tions. Two core employees were promoted to fill these posi-
tions, which in turn opened those positions to two additional
employees.
E. Baker’s June 16 Letter
Baker sent another letter to the distribution unit employees
on June 16. In this communication Baker states that he has
learned that some employees have told supervisors they were
having problems getting their names removed from the union
authorization petition. Baker advised them of their right to have
their names removed. He also states that the Respondent’s
agents were not going to pressure the employees to withdraw
their signatures. He did enclose a form letter which employees
could use to revoke their authorizations.
F. Analysis of Wage Increases
The Supreme Court has interpreted Section 8(a)(1) of the Act
to prohibit “conduct immediately favorable to employees which
is undertaken with the express purpose of impinging upon their
freedom of choice for or against unionization and is reasonably
calculated to have that effect.” NLRB v. Exchange Parts Co.,
375 U.S. 405, 409 (1964). The Court also stated that the “[t]he
danger inherent in well-timed increases in benefits is the sug-
gestion of a fist inside the velvet glove,” and “[e]mployees are
not likely to miss the inference that the source of benefits now
is also the source from which future benefits must flow and
which may dry up if it is not obliged.” Accord, NLRB v. An-
chorage Times, 637 F.2d 1359, 1367–1368 (9th Cir. 1981).
In Wm. T. Burnett & Co., 273 NLRB 1084, 1091 (1984), the
administrative law judge, with Board approval, set forth the
presumptions regarding wage increases during the pendency of
an organizing drive:
Thus, an employer’s grant of benefits during the course of un-
ion activity has a substantial potential for impacting upon and
interfering with such activity. An employer’s course in grant-
ing benefits in such situations must be charted to avoid the
perception that the grant of benefits is responsive to union ac-
tivity. Because of the obvious impact on employees of the
grant of a benefit during a union election campaign, the grant-
ing of such benefits raises a strong presumption of illegality.
More specifically, the presumption is that the employer’s mo-
tive in granting the benefit is to influence employee choice in
union representation. In view of this presumption, the burden
is that of the employer to show that the grant of the increase
was unresponsive to the organizational activity.
The Respondent’s May 31 letter to employees acknowledged
that it was aware of their union activities. The record reflects
that the Respondent had been studying wages in connection
with the distribution employees but there is no evidence to
sustain a finding of what that survey revealed. Thus, the Re-
spondent presented no evidence relative to who did the wage
survey, what information the survey sought, when it was con-
ducted, when it was finalized, what the survey results showed,
how the amounts of increases were calculated and who made
the decision regarding the amount and timing of the increases.
Additionally, the Respondent did not provide evidence regard-
ing the reasoning and timing of the granting, for the first time,
of a night differential for the distribution center employees. The
Respondent simply chose not to call any witnesses concerning
these questions. The Respondent bears the burden of proving
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1156
these matters when wage increases are given to employees
immediately upon learning of their union activity.
I find that the record shows the amounts of the June 1 hourly
increases were substantial, particularly when compared to prior
wage increases. The timing of the increases was not consistent
with past raises. No evidence demonstrates that the raises were
decided upon prior to the Respondent’s knowledge of the em-
ployees’ union activities. The $.25 per hour night-shift differen-
tial was a new benefit that applied to approximately 55 of the
60 unit employees. Thus approximately 91 percent of the dis-
tribution employees received this additional pay raise. The
Respondent’s bare assertion that raises were delayed because
the human resources department was busy does not meet its
burden of showing by definitive evidence that the raises were
not designed to interfere with the employees’ union activities.
The Respondent did not provide adequate evidence sufficient to
overcome the presumption that it was granting wage increases
and a night-shift differential increase, at least in part, to unlaw-
fully curtail the Union’s organizational campaign. I find, there-
fore, that the grant of these wage increases is a violation of
Section 8(a)(1) of the Act.
G. Analysis of Promises of Benefits
The Government alleges that on June 1, Baker’s statements
to employees amounted to unlawful solicitation of grievances
in order to interfere with their union activities. The Respondent
asserts that no promises were made to remedy any of the em-
ployees’ complaints and thus the Respondent did not violate the
Act.
The relevant principles regarding the solicitation of griev-
ances are well established and were recently summarized in
Maple Grove Health Care Center, 330 NLRB 775 (2000), as
follows:
Absent a previous practice of doing so . . . the solicitation of
grievances during an organizational campaign accompanied
by a promise, expressed or implied, to remedy such griev-
ances violates the Act. [I]t is the promise, expressed or im-
plied, to remedy the grievances that constitutes the essence of
the violation. [T]he solicitation of grievances in the midst of a
union campaign inherently constitutes an implied promise to
remedy the grievances. Furthermore, the fact an employer’s
representative does not make a commitment to specifically
take corrective action does not abrogate the anticipation of
improved conditions expectable for the employees involved.
[T]he inference that an employer is going to remedy the same
when it solicits grievances in a preelection setting is a rebut-
table one.
The Respondent not only made statements promising to look
into the employees’ grievances, it also followed up by meeting
with workers and sending the June 7 letter that was a further
solicitation regarding their concerns. The Respondent presented
insufficient evidence that rebuts the inference that it was going
to remedy the employees’ grievances and that such solicitations
were designed to interfere with the employees’ union activities.
I find that the Respondent violated Section 8(a)(1) of the Act by
soliciting the employees’ grievances on June 1, 2000. Reliance
Electric Co., 191 NLRB 44, 46 (1971).
H. Additional 8(a)(1) Violations
The Government alleges that the Respondent has committed
several other violations of the Act regarding its campaign
against the Union. The Respondent denies that it has violated
the Act with regard to the additional allegations.
One such allegation asserts that the Respondent’s letters of
June 7 and 16 unlawfully solicited the employees to withdraw
their union authorizations. The Board in R. L. White, Inc., 262
NLRB 575, 576 (1982), set forth the standard for considering
an employer’s conduct regarding telling employees about re-
signing from the union. The Board stated that an employer does
not violate the Act by merely providing employees with infor-
mation on how to resign from the union “as long as the em-
ployer makes no attempt to ascertain whether employees will
avail themselves of this right nor offers any assistance, or oth-
erwise creates a situation where employees would tend to feel
peril in refraining from such revocation.” The Board has found
violations where unrequested advice about revoking union au-
thorizations has been accompanied by employer assistance in
the actual mechanics of the revocation, Deutsch Co., 180
NLRB 8, 20 (1969), and where the advice was given in the
context of other unfair labor practices. Kut Rate Kid & Shop
Kwik, 246 NLRB 106, 119 (1979); L’Eggs Products, Inc., 236
NLRB 354, 389 (1978). Here, the Respondent offered the revo-
cation advice in accompaniment with its unlawful granting of
wage increases, solicitation of employee grievances, and as
detailed below, the unlawful discharge of Kama Cox. I find
that, in the context of its unlawful conduct, the Respondent’s
soliciting the employees to withdraw their union authorizations
was a violation of Section 8(a)(1) of the Act.
The Government alleges that the June 7 and 16 letters also
unlawfully created the impression of surveillance of employ-
ees’ union activities. In the June 7 letter Baker stated: “I am
encouraged that some employees have already requested that
their union signature cards be withdrawn.” In the June 16 letter,
Baker stated: “Several Distribution Department employees
have shared with their supervisors that those pushing the union
petition have refused to remove their signature at their request.”
The statement contained in the June 16 letter does nothing more
than report what employees told supervisors. I find that this
statement does not unlawfully create the impression of surveil-
lance of employees’ union activities. In contrast, the statement
in the June 7 letter cites no source for Baker’s knowledge that
some employees had requested their signatures be withdrawn.
This tends to restrain and coerce employees by reasonably giv-
ing them the sense that their union activities are being sur-
veilled by the Respondent. I find, therefore, that the June 7
letter did create the impression of surveillance and is a violation
of Section 8(a)(1) of the Act.
Finally, the Government alleges that by serving pizza to the
employees at the June 1 meeting the Respondent was further
trying to unlawfully interfere with their union activities. The
record establishes that the Respondent had provided refresh-
ments to employees at past meetings. While the Government
debates the comparative quality of those refreshments, I find
that the Respondent’s serving of pizza at the June 1 meeting
was not unlawful interference, and the Respondent did not vio-
late the Act by such conduct.
REGISTER GUARD 1157
VI. THE DISCHARGE OF KAMA COX
Kama Cox worked for the Respondent on two occasions. She
was first employed from September 21, 1999, to January 19,
2000, as a part-time additional employee. Cox is a single
mother and was attending school while working for the Re-
spondent. She admittedly had some problems working the night
shift while at the same time meeting her family and school
responsibilities. Cox was not warned or disciplined about any
attendance problems during her first period of employment.
Cox voluntarily resigned her employment on January 19, 2000.
In April 2000, Cox again sought employment with the Re-
spondent. She was immediately hired and started work on April
6. Cox was active in the union organizing activity. She signed
the union authorization petition, was on the union organizing
committee, attended union meetings, and actively solicited
employees to sign the authorization petitions.
On June 3, Cox called in sick with a severe allergy/asthma
attack. On June 5, Cox telephoned Supervisor Steve Carlson
and reported that she was unable to get a doctor’s appointment
until 2 p.m. the following day and would need to leave work
early. Cox testified that Carlson said she could not leave work
early because they had a “run” (apparently this is an extra load
of work). Cox argued there was no run on the schedule and
they never had runs on Tuesdays. Carlson told Cox she could
work the whole day or she could take the whole day off. Cox
said that she needed to get to the doctor and would take the
entire day off.
On June 6, Cox telephoned the Respondent’s human re-
sources department and asked about its policy regarding em-
ployees leaving work early. She was told to talk to Supervisor
LaCamp. Cox asked LaCamp about her question and he told
her that he did not know of any policy on the subject. He stated
that he thought such matters were left to the supervisor’s dis-
cretion. Cox complained to LaCamp about Carlson denying her
permission to leave early for the doctor’s appointment. La-
Camp told her to take the matter up with her manager, Strub,
when he returned from vacation the following week.
Cox testified that she knew that other employees had been
allowed to leave work early for medical appointments and cited
the example of employee Rob Warner leaving early for a dental
appointment. Carlson did not testify at the hearing and the Re-
spondent offered no evidence relating to his refusal to allow
Cox to leave work early for the medical appointment. The Re-
spondent offered no evidence relative to any policy about leav-
ing work early.
On June 6, Cox went in to the Respondent’s facility to give
Carlson a note from her doctor and to pick up her paycheck. At
that time Cox learned that, contrary to Carlson’s stated reason
for not allowing her to leave early, there had been no run per-
formed on June 6. Cox’s testimony in this regard was uncon-
troverted by the Respondent.
On June 7, Cox was called at work by her son’s day care
provider and informed that he was ill. Carlson gave Cox per-
mission to leave work to get her son. On June 8, Cox tele-
phoned Carlson and notified him that her son was still ill and
she would not be at work that day. Her son’s illness continued
on June 9 and again she telephoned Carlson to inform him she
would be absent from work that day. Carlson told her he would
see her on Tuesday, June 13, her next scheduled workday.
On June 10 Union Representative Ostrach mailed invitations
to unit employees for a “bring your own pizza” party to be held
on June 14 at the union hall. The invitation listed the names of
the five employee organizing committee members. Cox’s name
was one of the five listed. The record reflects that the invita-
tions were delivered to employee homes on June 12.
Cox went to work as scheduled on Tuesday, June 13. When
Cox got out of her car in the parking lot she was met by Super-
visors Carlson and Strub. Cox started to hand Strub the doctor’s
excuse reflecting her son’s illness, but he refused to accept the
note. The men told Cox that she was being discharged because
she had failed her probationary period. Cox was not told what
she had done to fail her probationary period.
Cox candidly admitted that she was occasionally late to
work. Cox’s personnel file contained no warnings about poten-
tially failing her probationary period and no absences in the file
were unexcused or a “no call/no show” absence. Cox testified
that the Respondent had never warned her that she was in dan-
ger of losing her job. Neither Carlson nor Stub testified at the
trial. The Respondent offered no witnesses to state the Respon-
dent’s decision making process or specific reasons why Cox
was terminated.
No evidence was presented that the Respondent has a written
policy concerning the number of absences or tardies that an
employee is allowed before she is warned or disciplined. The
record contains several examples of employees who were ab-
sent or tardy on numerous occasions, including having unex-
cused absences and “no call/no show” absences. These employ-
ees were not disciplined or terminated. The Respondent offered
no evidence to refute these examples or to explain the disparity
in treatment received by Cox.4
The General Counsel has the initial burden of establishing
that union or other protected activity was a motivating factor in
Respondent’s action alleged to constitute discrimination in
violation of Section 8(a)(3). The elements commonly required
to support such a showing of discriminatory motivation are
union activity, employer knowledge, timing, and employer
animus. Once such unlawful motivation is shown, the burden of
persuasion shifts to the Respondent to prove its affirmative
defense that the alleged discriminatory conduct would have
taken place even in the absence of the protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983); Elec-

4 The Respondent moved to strike Cox’s testimony because in an af-
fidavit she gave the Government there is a reference to attached “let-
ters” she had received from the Respondent. There was a question as to
precisely what the attachments were. After consideration of the record
and Cox’s testimony it is apparent that the discrepancy, if any, is minor.
The Respondent was given a full opportunity to examine Cox and to
inquire of the Government about the matter. It remains unclear if there
was more than one letter attached to the affidavit or if the reference in
the affidavit was an error. Respondent has not shown how it was preju-
diced by this confusion and I find the matter is not sufficient grounds to
strike Cox’s testimony. I, therefore, deny the Respondent’s motion to
strike her testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1158
tromedics, Inc., 299 NLRB. 928, 937 (1990), enfd. mem. 947
F.2d 953 (10th Cir. 1991); Presbyterian/St. Luke’s Medical
Center, 723 F.2d 1468, 1478–1479 (10th Cir. 1983). The test
applies regardless of whether the case involves pretextual rea-
sons or dual motivation. Frank Black Mechanical Services, 271
NLRB 1302 fn. 2 (1984). “A finding of pretext necessarily
means that the reasons advanced by the employer either did not
exist or were not in fact relied upon, thereby leaving intact the
inference of wrongful motive established by the General Coun-
sel.” Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982).
Cox was a union organizing leader and this fact was widely
known in the plant. The evidence shows that the Respondent
was immediately aware of the union activity at the plant. Thus,
Baker’s May 31 letter states: “It has been brought to my atten-
tion that a few employees have been talking about representa-
tion by a Union.” Cox’s discharge occurred directly after her
name appeared on the Union’s meeting invitation. Cox was
unexplainably denied permission to leave work early for a doc-
tor’s appointment shortly after her union activity began. Cox
was presumably discharged for poor attendance, yet no specif-
ics of how she failed to meet the Respondent’s work standards
was presented. The Respondent chose not to explain the dispa-
rate treatment that Cox received when compared to other em-
ployees with attendance deficiencies. The Respondent chose
not to introduce evidence explaining the reasoning and timing
for her discharge. The Respondent chose not to introduce any
evidence denying that it had knowledge of Cox’s union activi-
ties. I infer from these factors and the record as a whole that the
Respondent was aware that Cox was a leader in the union orga-
nizing efforts at the plant. Dr. Frederick Davidowitz, D.D.S.,
277 NLRB 1046–1049 (1985); Famet, Inc. v. NLRB, 490 F.2d
293 (9th Cir. 1973).
Under the adverse inference rule when a party has relevant
evidence within its control which is not produced, that failure
gives rise to an inference that the evidence would be unfavor-
able to the party. Auto Workers v. NLRB, 459 F.2d 1329 (D.C.
Cir. 1972). Such an adverse inference is appropriate in this
case. I find that had the Respondent called witnesses to testify
concerning its reasons for terminating Kama Cox that testi-
mony would have been contrary to the Respondent’s defense
that it did not unlawfully discharge Cox because of her union
activities. International Automated Machines, 285 NLRB 1122,
1122–1123 (1987).
The Respondent, as set forth herein, has been found to have
committed other unfair labor practices. I find, therefore, that the
Government has proven the requisite union activity, knowl-
edge, animus, and timing with regard to the discharge of Kama
Cox. I further find that the Respondent has failed to show that
Cox would have been discharged regardless of her union activi-
ties. I conclude, therefore, that the Respondent discriminatorily
discharged Kama Cox on June 13 in violation of Section
8(a)(1) and (3) of the Act.
VII. BARGAINING ORDER REMEDY
The Government argues that a bargaining order is the appro-
priate remedy for the Respondent’s unfair labor practice viola-
tions. The Respondent opposes such a remedy. In Gissel, supra,
the Supreme Court “identified two types of employer miscon-
duct that may warrant the imposition of a bargaining order:
‘outrageous and pervasive unfair labor practices’ (‘category I’)
and ‘less extraordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to undermine
majority strength and impede the election processes’ (‘category
II’).” Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074,
1078 (D.C. Cir. 1996). The Supreme Court stated that in fash-
ioning a remedy in the exercise of its discretion in category II
cases, the Board “can properly take into consideration the ex-
tensiveness of an employer’s unfair labor practices in terms of
their past effect on election conditions and the likelihood of
their recurrence in the future. If the Board finds that the possi-
bility of erasing the effects of past practices and of ensuring a
fair election (or a fair rerun) by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance, be better protected
by a bargaining order, then such an order should issue.” 395
U.S. at 614–615.
An examination of the Respondent’s conduct in this case re-
veals that a Gissel bargaining order is justified. The Union had
signed authorizations from a majority of the unit employees on
June 1. The Respondent’s unfair labor practices include the
unlawful discharge of Kama Cox, a leading union advocate. As
noted, her discharge was timed to occur the day before the Un-
ion’s June 14 employee meeting. NLRB v. Carlton’s Market,
642 F.2d 350, 354 (9th Cir. 1981) (employees are unlikely “to
miss the point that backpay and offers of reinstatement made
some 9 to 11 months after the discharge does not necessarily
compensate for the financial hardship and emotional and men-
tal anguish apt to be experienced during an interim period of
unemployment”); NLRB v. Jamaica Towing, Inc., 632 F.2d
208, 212–213 (2d Cir. 1980).
The Respondent’s highest ranking official, Publisher, Tony
Baker, was shown to have had a direct part in some of the
unlawful activity including the announcement of the pay raises,
creating the impression of surveillance of the employees’ union
activities, soliciting the employees to withdraw support from
the Union, and the solicitation of employee grievances. Baker
commenced the Respondent’s unlawful conduct immediately
upon learning of the employees’ union activities and voiced his
strong hostility towards union representation for the distribution
workers in the communications he transmitted to the employ-
ees. M. J. Metal Products, 328 NLRB 1184, 1185 (1999); Con-
sec Security, 325 NLRB 453, 455 (1998), enfd. 185 F.3d 862
(3d Cir. 1999) (“[w]hen the antiunion message is so clearly
communicated by the words and deeds of the highest levels of
management, it is highly coercive and unlikely to be forgot-
ten”).
The unlawful grant of the wage increases effected every unit
employee and was a powerful weapon in the Respondent’s
antiunion campaign. As the Board stated in Parts Depot, Inc.,
332 NLRB 670, 675 (2000):
[T]he effects of an unlawfully granted wage increase are par-
ticularly difficult to remedy by traditional means.
Unlawfully granted benefits have a particularly long-
lasting effect on employees and are difficult to remedy by
REGISTER GUARD 1159
traditional means not only because of their significance to
the employees, but also because the Board’s traditional
remedies do not require a respondent to withdraw the
benefits from the employees. Color Tech Corp., 286
NLRB 476, 477 (1987). Further, the benefits unlawfully
granted will serve as a reminder to the employees that the
Respondent, not the Union, is the source of such benefits
and that they may continue as long as the employees do
not support the Union. (Gerig’s Dump Trucking, 320
NLRB 1017, 1017–1018 (1996), enfd. 137 F.3d 936 (7th
Cir. 1998).)5
Finally, the Respondent committed other serious and perva-
sive unfair labor practices in its attempt to discourage support
for the Union—creating the impression of surveillance of their
union activities, unlawfully urging employees to revoke union
authorizations, and solicitation of employee grievances. All of
this conduct was directed against every employee in the unit.
There is nothing in the record that suggests the Respondent
would not continue to engage in such widespread unlawful
conduct in the future if it would suit its ends in defeating union
representation of its employees.
Taking all of these factors into consideration, I find that the
Respondent’s unlawful conduct clearly demonstrates that the
holding of a fair election in the future would be unlikely and
that the employees’ wishes are better gauged by the Union’s
card majority rather than by an election. Sahara Datsun, Inc. v.
NLRB, 811 F. 2d 1317, 1321–1322 (9th Cir. 1987). I find that
the bargaining order shall date from June 1, 2000, the date that
the Respondent commenced its campaign of unfair labor prac-
tices. Joy Recovery Technology Corp., 320 NLRB 356 fn. 4
(1995), enfd. 134 F.3d 1307 (7th Cir. 1998).6

5 See also Anchorage Times, 637 F.2d 1359, 1370 (9th Cir. 1981).
6 The Respondent’s brief makes passing mention of employee turn-
over in the unit as a possible reason for denying a bargaining order
remedy. The record evidence of turnover is scant and the Board does
not normally accept such an argument. Garvey Marine, Inc., 328 NLRB
991, 995–996 (1999) (“The Board traditionally does not consider turn-
over among bargaining unit employees in determining whether a bar-
gaining order is appropriate, but rather assesses the appropriateness of
this remedy based on the situation at the time the unfair labor practices
were committed.”). Regardless, I find that the record does not support
the conclusion that the effects of the Respondent’s unlawful conduct
are likely to be sufficiently dissipated by turnover to ensure a free and
fair future election. Although some employees who were employed at
the time of the unlawful conduct may have left the Respondent’s em-
ployment for reasons related or unrelated to its unfair labor practices,
others who remain would recall these events. Moreover, as noted
above, the lingering effects of a generous across-the-board wage in-
crease and the unlawful discharge of a leading union advocate are par-
ticularly difficult to dispel.
VIII. THE UNION’S BARGAINING DEMAND AND
INFORMATION REQUEST
On September 26, 2000, the Union’s attorney, David A.
Rosenfeld, sent a letter to Baker demanding that the Respon-
dent bargain with the Union regarding the distribution depart-
ment employees. The letter stated that the request was retroac-
tive to June 1, 2000. Rosenfeld’s letter also requested certain
information regarding unit employees, company policies relat-
ing to wages, hours, and working conditions, copies of fringe
benefit plans, and current job descriptions.
On September 27, Baker replied to Rosenfeld’s letter deny-
ing that the Union represented any of the Respondent’s em-
ployees. Baker rejected the Union’s request for bargaining and
denied the request to provide the information sought. The Gov-
ernment alleges the refusal to bargain and provide the informa-
tion is a violation of the Act. The Respondent asserts it had no
duty to supply the information because the Union did not repre-
sent its distribution employees.
A bargaining order remedy has been directed against the Re-
spondent from the date of the commencement of its unfair labor
practices, i.e., June 1. Regency Manor Nursing Home, 275
NLRB 1261 fn. 5 (1985). Under Section 8(a)(5) and (d) of the
Act, as interpreted by the Supreme Court, an employer is obli-
gated to furnish a union with sufficient relevant information, on
request, to enable the union to represent its employees effec-
tively in collective-bargaining negotiations. NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967). I find that the
Union’s requested information is relevant and necessary to its
collective bargaining with the Respondent. The Respondent’s
September 27 refusal to recognize and bargain with the Union
and to supply information is contrary to the bargaining order
remedy. I find that the Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to bargain with the Union and to
provide it the requested relevant information.
CONCLUSIONS OF LAW
1. The Guard Publishing Company, d/b/a The Register
Guard, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Teamsters Local Union No. 206, affiliated with the
International Brotherhood of Teamsters, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1), (3), and (5)
of the Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not violated the Act except as herein
specified.
[Recommended Order omitted from publication.]