Mast Advertising & Publishing

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 819 (N.L.R.B. 1991)

819
304 NLRB No. 107
MAST ADVERTISING & PUBLISHING
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
The Respondent also asserts that the judge’s findings are a result of bias
against the Respondent’s witnesses. After careful examination of the record,
we are satisfied that this allegation is without merit.
2 We have modified the notice to comport with the language of the judge’s
recommended Order.
3 The judge relied on evidence that the Respondent was aware of
Bergstrom’s activities in support of the Union, that she had received two pre-
vious warnings which were discriminatorily motivated, that the Respondent re-
lied on those warnings in imposing the suspension, and that Bergstrom was
engaged in protected concerted activity by acting as a witness for employee
Burns during the meeting at which her conduct was alleged by management
to warrant the suspension.
4 Bergstrom commented that when she was on worker’s compensation, she
went to see as many doctors as she wanted, and that Burns could do the same.
5 See Hawaiian Hauling Service, 219 NLRB 765, 766 (1975).
Mast Advertising & Publishing, Inc. and Commu-
nications Workers of America, AFL–CIO and
Mary C. Bergstrom. Cases 17–CA–14719, 17–
CA–14719–2, and 17–CA–14893
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
On March 27, 1991, Administrative Law Judge Bur-
ton Litvack issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
Union filed a brief in opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified, and to adopt the recommended
Order.2
The judge applied the dual motivation test of Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), to conclude that the Respondent violated
Section 8(a)(3) and (1) of the Act by suspending em-
ployee Mary C. Bergstrom. Thus, he found that the
General Counsel made a prima facie case that
Bergstrom’s protected activity was a motivating factor
in the Respondent’s decision to suspend her,3 and that
the Respondent failed to rebut such case by dem-
onstrating that it would have suspended Bergstrom
even in the absence of her protected activities. We
agree with the judge’s finding that the Respondent vio-
lated the Act by suspending Bergstrom, but disagree
that Wright Line is the correct standard to apply to this
case.
The events leading to the suspension may be sum-
marized as follows. On March 2, 1990, employee
Burns asked Bergstrom to accompany him as a witness
to the office of Benefits Manager Brewer from whom
he planned to request paid leave for a visit to his phy-
sician for treatment of a work-related back injury.
Brewer admittedly allowed Bergstrom into the meeting
for this purpose. Shortly after the discussion between
Burns and Brewer began, Bergstrom interjected a com-
ment about her own worker’s compensation experi-
ence.4 Brewer reminded her that she was there as a
witness and that she should remain quiet. Some mo-
ments later, when it became apparent that Burns’ re-
quest for leave would be denied, Bergstrom again
interjected, accusing Brewer of not caring from a per-
sonal or professional standpoint if Burns ruptured a
disk and died on the job. At this, Brewer became red-
faced and visibly upset, and ordered Bergstrom to
leave her office. At first, Bergstrom refused, but after
Brewer threatened to call security and have her es-
corted out, Bergstrom left.
Brewer reported the incident later that day (Friday)
to her immediate superior, Fitzmaurice, who decided
that Bergstrom’s ‘‘extreme insubordination’’ and
‘‘gross misconduct’’ warranted a 3-day suspension,
coupled with probation for a period of 90 days. When
Bergstrom arrived the following Monday morning for
work, she was informed of the discipline, and told to
report back to work on Thursday.
The judge found, and we agree, that Bergstrom was
engaged in protected activity when she went with
Burns to see Brewer. In that context, which we find
tantamount to the presentation of a grievance, two em-
ployees were working together at the same time and
place toward a common goal related to their terms and
conditions of employment, activity which is clearly
protected by Section 7. It is well settled that an ‘‘em-
ployee’s right to engage in concerted activity may per-
mit some leeway for impulsive behavior which must
be balanced against the employer’s right to maintain
order and respect.’’ NLRB v. Thor Power Tool Co.,
351 F.2d 584, 587 (7th Cir. 1965), enfg. 148 NLRB
1379 (1964). We find that Bergstrom’s conduct in
interjecting comments—impertinent as they might have
been—into Burns’ discussion with Brewer was not so
flagrant and egregious as to cost her the Act’s protec-
tion.5 We note in this regard that Brewer granted
Bergstrom permission to be present, and that
Bergstrom ultimately obeyed Brewer’s command to
leave her office. The offensive element in her conduct
consisted only of interrupting the discussion twice and
making remarks which Brewer found personally insult-
ing. We conclude that, in the course of Burns’ presen-
tation of what amounted to a grievance concerning the
denial of permission to see a doctor, Bergstrom’s con-
duct presented no threat to the Respondent’s mainte-
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Cf. Marico Enterprises, 283 NLRB 726, 732 (1987) (employee’s
unprovoked extreme and abusive outbursts, obscene gestures, and insubordina-
tion on the shop floor egregious and disruptive enough to warrant discharge).
7 We find it unnecessary to decide whether the suspension also violated Sec.
8(a)(3) of the Act. See Dougherty Lumber Co., 299 NLRB 295 fn. 1 (1990);
Postal Service, 250 NLRB 4, 6 (1980).
nance of order, respect, or discipline.6 It was merely
her way, however artless, of asserting a right to medi-
cal treatment which she believed from her own experi-
ence, was being unfairly denied to her coworker.
The Respondent admits it was this conduct which
led it to suspend Bergstrom. Accordingly, we find that
the Respondent violated Section 8(a)(1) by suspending
Bergstrom and placing her on probationary status for
90 days, because it did so as a consequence of her pro-
tected concerted activity in advocating Burns’ rights to
management.7
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 7.
‘‘7. By imposing a 3-day suspension on employee
Mary C. Bergstrom and by placing her on probationary
status for a period of 90 days, the Respondent engaged
in conduct violative of Section 8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mast Advertising & Pub-
lishing, Inc., Overland Park, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached notice
is substituted for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEEES
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT suspend, place on probation, issue
written warnings, or otherwise discipline employees
because they engage in union or other protected con-
certed activities.
WE WILL NOT issue verbal warnings to employees
that they should restrict union activities to their lunch
or break periods when no rule prohibiting such conduct
during worktime is in effect.
WE WILL NOT threaten our employees with reduced
benefits if they aid or support a union.
WE WILL NOT maintain in effect in our employee
handbook a rule which mandates the confidentiality of
our employees’ rates of pay.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL rescind any rule which mandates that em-
ployees keep confidential any information regarding
their rates of pay.
WE WILL make employee Mary C. Bergstrom whole,
with interest, for any wages lost as a result of our un-
lawful suspension of her.
WE WILL rescind and expunge from our files any
references to the August 25, 1989 verbal warning, the
November 2, 1989 written warning, and the suspension
and placement on probationary status in March 1990
of Bergstrom and notify her, in writing, that this has
been done and that evidence of this discipline will not
be used as a basis for any future personnel action
against her.
MAST ADVERTISING & PUBLISHING,
INC.
Naomi L. Stuart, Esq., for the General Counsel.
J. Curtis Nettels, Esq., of Overland Park, Kansas, for the Re-
spondent.
William M. Franz, Esq. and Maureen M. Franz, Esq. (Franz
& Franz, P.C.), of St. Louis, Missouri, for the Commu-
nications Workers of America.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and first amended unfair labor practice charges in Case 17–
CA–14719 were filed by Communications Workers of Amer-
ica, AFL–CIO (the Union), on November 7 and December
21, 1989, respectively; the original and first amended unfair
labor practice charges in Case 17–CA–14719–2 were filed by
the Union on November 13 and December 21, 1989, respec-
tively; and the original and first amended unfair labor prac-
tice charges in Case 17–CA–14893 were filed by Mary C.
Bergstrom, an individual, on March 5 and 7, 1990, respec-
tively. Based on the unfair labor practice charges, the Re-
gional Director for Region 17 of the National Labor Rela-
tions Board (the Board), issued an order consolidating cases
and a consolidated complaint on April 5, 1990. The consoli-
dated complaint alleges that Mast Advertising & Publishing,
Inc. (Respondent), engaged in, and is engaging in certain un-
fair labor practices violative of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). Respondent timely
filed an answer, essentially denying the commission of the
alleged unfair labor practices. The matter was scheduled for
hearing and tried before me on May 17, 1990, in Mission,
Kansas. All parties were afforded the opportunity to examine
and cross-examine witnesses, to offer any relevant evidence
into the record, to argue their legal positions orally, and to
file posthearing briefs. Briefs were filed by all parties and
have been carefully considered by me. Accordingly, based on
the entire record, including the posthearing briefs and my ob-
servation of the demeanor of the several witnesses, I make
the following
821MAST ADVERTISING & PUBLISHING
1 Respondent admits that each of the above-mentioned individuals is a su-
pervisor within the meaning of Sec. 2(11) of the Act and its agent within the
meaning of Sec. 2(13) of the Act.
2 There is no dispute that Bergstrom was subpoenaed by the Union to appear
as a witness at the representation hearing. She received the subpoena on No-
vember 1 at approximately 12:15 p.m. and immediately showed it to Owen
Ware, who, as of that date, was her immediate supervisor.
3 While Ware apparently was prohibiting Bergstrom from engaging in
prounion activities during worktime, there is evidence that Respondent toler-
ated antiunion activities during worktime. Thus, employee Tania Eagleson tes-
tified, without contradiction, that, on November 16, 1989, she observed an-
other employee placing antiunion handbills on the desks in her work area dur-
ing worktime and in the presence of a supervisor. Also, Bergstrom observed
two mailroom employees, during worktime, cutting out antiunion logos with
the mailroom supervisor observing and saying nothing.
Respondent did call Owen Ware to testify with regard to this allegation nor
did it offer any other evidence.
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a corporation, has main-
tained an office and place of business in Overland Park,
Kansas, and has been engaged in the business of publishing
telephone directories. In the normal course and conduct of
the business operations at its Overland Park, Kansas facility,
Respondent annually sells and ships goods and products val-
ued in excess of $50,000 directly to customers located out-
side the State of Kansas. Respondent admits that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUES
The consolidated complaint alleges that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by issuing an oral
warning on August 25, 1989, and a written warning on No-
vember 2, 1989, to employee Mary C. Bergstrom and that
Respondent further violated Section 8(a)(1) and (3) of the
Act by giving her a 3-day disciplinary suspension on March
5, 1990, and by placing her on 90-day probationary status.
As to the warning notices, Respondent argues that such were
not coercive or threatening and that each was de minimis in
nature and effect, and, as to the suspension of Bergstrom and
placing her on probationary status, Respondent contends that
such was not unlawfully motivated and was based on her
own disruptive behavior. The consolidated complaint next al-
leges that Respondent violated Section 8(a)(1) of the Act by
threatening employees with loss of benefits if they aided or
selected the Union as their bargaining representative. Re-
spondent denied the commission of the allegation. Finally,
the consolidated complaint alleges that Respondent violated
Section 8(a)(1) of the Act by maintaining a provision in its
employee handbook, demanding that employees keep con-
fidential information regarding their rates of pay. Respondent
also denied that the provision was violative of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, a wholly-owned subsidiary of Southwestern
Bell, is engaged in the business of printing telephone direc-
tories for telephone companies and has an office and busi-
ness facility located in Overland Park, Kansas. Respondent’s
president is Ron Kennedy; the vice president of finance and
administration and chief financial officer is Woodrow E.
Williams; the director of Respondent’s human resources de-
partment is Adrian Fitzmaurice; Patti Brewer is the manager
for benefits policy administration; and Owen Ware is the
manager for properties and facilities.1 The record establishes
that a union organizing campaign amongst Respondent’s pro-
duction employees commenced on June 15, 1989, when Del-
bert Johnson, an International staff representative for the
Union, met with two employees. Johnson arranged for an-
other meeting with interested employees and, a few days
later, met with a group of five or six individuals, including
Mary C. Bergstrom, who works for Respondent as a dupli-
cating clerk in the mailroom. Later, in August, an employee
organizing committee was established, with members solicit-
ing for the Union and distributing authorization cards. There
is no dispute that Bergstrom was involved in the organiza-
tional campaign from its inception or that she engaged in the
distribution of authorization cards, and the parties stipulated
that, commencing in June 1989, Bergstrom ‘‘publicly re-
vealed herself to be a staunch Union partisan and one of its
principal organizers on the pending election proceeding.’’ In
this regard, having obtained enough cards for a sufficient
showing of interest, on October 18, 1989, the Union filed a
petition for a representation election in a unit encompassing
all of Respondent’s hourly employees, with Region 17 of the
Board, and a representation hearing was scheduled for No-
vember 3, 1989. One of the issues at the hearing was to be
the status of asserted confidential employees and their inclu-
sion or exclusion from the bargaining unit, and there is no
dispute that Bergstrom was one of the Union’s sources of in-
formation on this issue.2
According to the consolidated complaint, one of the al-
leged unfair labor practices occurred during the period of the
Union’s initial organizing campaign and two occurred during
the time period between the filing of the election petition and
the representation hearing. As to the first allegation,
Bergstrom testified that she reported for work on August 25
and, in addition to her normal duties, was assigned by Owen
Ware, the facilities manager, to substitute for another em-
ployee whose job was to stock the women’s restrooms with
toilet paper, paper towels, and other supplies. That afternoon,
according to the Charging Party, she was ordered to report
to Owen Ware’s office at approximately 2:30. She arrived at
his office, and, with no one else present, the supervisor ‘‘told
me that someone had approached him and told him that I
was talking about the Union in the restroom and that I was
to restrict my soliciting for union activities to lunch and
breaks.’’ Bergstrom replied that she had been working at the
time, that she had merely answered a question, that whatever
was said had not interfered with her work, and that it was
not a lengthy conversation. To this, Ware repeated that she
was to restrict soliciting for the Union to her lunches and
breaks. Bergstrom added that her meeting with Ware lasted
‘‘maybe five minutes’’ and that he said nothing about their
conversation constituting any sort of discipline.3 Concerning
the subject of this conversation, the parties stipulated that
Respondent has never maintained a no-solicitation rule in ef-
fect at the Overland Park facility, and there is no dispute—
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent admits that its employee handbook contains the following lan-
guage, prohibiting employee discussion of their rates of pay:
Salary administration guidelines, formally titled the Grade Level Com-
pensation Program, have been established to assure that each employee’s
pay is reviewed on a regular basis, that Mast’s pay levels are, and will
remain competitive with pay levels for comparable positions in other
companies, and that our employees are equitably paid in recognition of
individual work performance. Your rate of pay is a private arrangement
between you and the Company. It must be kept confidential.
It is alleged in the consolidated complaint that this handbook provision is
violative of the Act.
and several employees, including Bergstrom, Donna
McKenzie, Helene Requinton, and Tania Eagleson, testi-
fied—that Respondent has no rules prohibiting talking in the
restrooms or while working. Finally, on this allegation, the
record discloses the existence of only one prohibited subject
of employee discussion—wages.4
The next allegation of the consolidated complaint concerns
an incident which occurred on October 31, 1989. There is no
dispute that, on this date, Patti Brewer, who is the benefits
and policy manager for Respondent and who reports to Adri-
an Fitzmaurice, the director of Respondent’s human re-
sources department, held a series of 12 meetings with bar-
gaining unit employees in order to explain the implementa-
tion of a change in the employee savings plan, which in-
volved adoption of the Southwestern Bell salaried employee
savings plan. The first of these meetings occurred at 8:30
that morning in an employee training room and lasted no
more than 70 minutes. Present were approximately 30 em-
ployees from various white pages and yellow pages depart-
ments, the records department, and data entry clerks and the
departmental supervisors. Donna McKenzie, who was em-
ployed as a lead clerk in the yellow pages production depart-
ment and who had been a leading proponent of the Union
amongst the employees, testified that Brewer conducted the
entire meeting and announced, at the outset, that Respondent
was in the process of changing the employees’ savings plan
from what was currently in effect to the Southwestern Bell
salaried employee plan. Utilizing a slide presentation, Brewer
explained ‘‘all the technicalities’’ of the new savings plan,
stating that, pursuant to its terms, Respondent would match
80 percent of what an employee saved and that this should
be contrasted to the Southwestern Bell nonsalaried employee
plan, which provided for only a 60-percent employer match.
After her presentation, Brewer asked for employee questions.
Lavon Hawkins, who was seated in the front row of employ-
ees and who, under the existing plan, as a result of her com-
pany seniority, was then receiving a 100-percent savings
match, asked if she would continue to receive the above
matching amount. Brewer replied, no, because Respondent
felt it would be more fair to all employees to have an across-
the-board 80-percent match and added, ‘‘. . . but, if we go
union, then we’ll go with the non-salaried plan.’’ According
to McKenzie, Brewer added ‘‘. . . that the company would
not give us as good a benefits if we went union.’’ During
cross-examination, McKenzie admitted that, based on con-
versations with representatives of the Union, she was sen-
sitive to any suggestion of loss of benefits because of the
Union, that the purpose of the meeting was to explain the
new savings plan to the employees, and that, had no ques-
tions been asked, Brewer would not have made the com-
ments attributed to her.
Employee Helene Requinton, a yellow pages production
clerk and a union adherent from the outset of the campaign,
corroborated McKenzie as to Brewer’s initial presentation of
the hourly employees’ new savings plan, including that she
compared the Southwestern Bell salaried employees’ plan,
under which Respondent’s hourly employees would be cov-
ered and which provided for an 80-percent employer match,
to the nonsalaried employee plan, which provided for only
a 60-percent employer match. According to this witness,
after a slide presentation illustrating investment opportunities,
Brewer asked for questions, and Lavon Hawkins asked how
the new plan would affect the employer savings match she
was then receiving. Brewer responded that, for the majority
of hourly employees, this new plan was a better one and,
after moving close to Hawkins who was in the front row and
lowering her voice, added ‘‘but when the Union comes in,
we’ll probably only get 60%. . . .’’ Requinton, who further
testified that she was sitting in the row behind Hawkins and
no more than 5 feet from the latter, stated that she thought
Brewer’s comment was strange as the latter mentioned the
Union in connection with what the employees would receive,
and, inasmuch as she believed all the assembled employees
should hear what Brewer said, she asked Brewer to ‘‘reit-
erate what she had said.’’ To this, Brewer replied, ‘‘we’re
going to probably have to go to a contract and we don’t
know what kind of savings plan you’ll get, you’ll probably
go with the . . . 60%.’’ Requinton added that she understood
the latter percentage figure to mean the nonsalaried employee
savings plan. During cross-examination, Requinton could not
recall Brewer saying that the company would not give us
good benefits if we went union but denied that her question
to Brewer was ‘‘when we become union, will we continue
to participate in the salaried plan?’’ Further, while conceding
that she understood Brewer’s answer to her as meaning that
Respondent did not know what the terms of any bargaining
agreement with the Union would be, Requinton added that
she also understood the answer to be that ‘‘if we go . . .
union . . . we probably would only get the non-salaried plan
because management would not go for anything higher.’’
Employee Tania Eagleson, a white pages line data opera-
tor, testified that, after Brewer made her presentation about
the new hourly employee savings plan, including a slide
presentation, she accepted ‘‘general questions about the
plan.’’ Lavon Hawkins asked a question about the company
match as she was then receiving 100 percent. Brewer replied
that every employee would receive an 80-percent match
‘‘and this was going to be a good thing for most of the peo-
ple because there weren’t that many long-term employees
and it was just a sacrifice that they were going to have to
make for everybody else. And then . . . she just blurted out
that, if the Union comes in . . . the Company match would
only be 60%.’’ Eagleson continued, saying that Requinton
asked Brewer to reiterate, asking if she meant that if the
Union comes in, we will not be getting 80 percent, and
‘‘Patti said, yes,’’ adding ‘‘that the Company wouldn’t be so
generous.’’ During cross-examination, the witness stated that
Brewer’s reply to Hawkins was unconnected to the question
and ‘‘unusual,’’ and she could not recall whether, in her ini-
tial presentation, Brewer had mentioned that the Southwest-
ern Bell nonsalaried employee savings plan match was a 60-
percent employer match.
823MAST ADVERTISING & PUBLISHING
5 Bergstrom testified, without contradiction, that employees in the mailroom
have a ‘‘flexible’’ morning breaktime because of their job duties, and there
is no contention that she was not in the midst of an authorized break when
she spoke to Snyder on November 2.
Ware’s reference in this written warning that his conversation with
Bergstrom on August 25 constituted a verbal warning was the first indication
to the latter that any discipline attached to the incident on that date.
As did the employee witnesses, Patti Brewer testified that
the initial portion of her first employee meeting on October
31, 1989, consisted of her informing the employees of their
new savings plan and, utilizing printed and visual aids, ex-
plaining it in detail. Thereupon, she asked for any employee
questions, and after Lavon Hawkins, Helene Requinton
‘‘asked me a question that said when we go union, will we
have this plan. . . . My response to Helene was, if we go
union, I don’t know if we’ll have this plan, as all decisions
like that have not yet been made.’’ Denying that she earlier
had mentioned anything about a 60-percent match, Brewer
continued, stating that this was not raised until her reply to
Hawkins’ question, to which she responded that Respondent
had chosen an 80-percent match for everyone. To this, Haw-
kins complained that she was losing 20 percent of her sav-
ings under the new savings plan; Brewer agreed, saying that
anyone currently at the 100-percent match level or at the 50-
percent or 60-percent levels would be moved to the 80-per-
cent match level regardless of tenure. This, according to
Brewer, prompted Requinton’s question and her reply in-
cluded information that the nonsalaried employee plan for
Southwestern Bell, which is contained in a ‘‘bargained con-
tract,’’ has a 60-percent match. Brewer specifically denied
saying there would be fewer benefits if the Union came in
or the Company would be less generous if the Union came
in but conceded that Lavon Hawkins’ question had nothing
to do with the Union.
Two of Respondent’s supervisors testified as to what oc-
curred at this October 31 meeting. Carol Jones, the manager
of the white and yellow pages production departments, stated
that she could not remember Brewer saying that Respondent
would not give us good benefits if we went union. During
cross-examination, she agreed that Brewer’s answer to Haw-
kins was directed to the latter and that Brewer’s answer to
Requinton was ‘‘that we would have to negotiate for our
benefits if there was a union.’’ Genene Vaughn, the super-
visor of yellow pages production, said that she heard every-
thing said by Brewer at the meeting and denied hearing her
say there would be fewer benefits or a reduced company
match if the Union came in.
The final consolidated complaint allegation, involving con-
duct prior to the representation case hearing on November 3,
1989, concerns an incident which occurred on the day before
the above-scheduled hearing date and which again involved
the Charging Party Bergstrom. She testified, without con-
tradiction, that, at 9:40 a.m. on November 2, she took her
normal morning break and went to a smoking room, located
on the first floor of Respondent’s facility. A few minutes
after the Charging Party entered the room, employee Diane
Snyder, who works as an administrative assistant for Re-
spondent and whose status as an alleged confidential em-
ployee and whose inclusion or exclusion from the bargaining
unit would be litigated the next day, entered. Bergstrom, who
was, as stated above, a union source for information on this
issue, began asking Snyder questions about her job, including
the difference between a branch secretary and an administra-
tive assistant, and requested a copy of Snyder’s job descrip-
tion. Snyder answered Bergstrom’s questions but was unsure
if she was authorized to give the latter a copy of the job de-
scription. Bergstrom’s break period ended, and she returned
to work. That afternoon, at approximately 3:30, Ricardo
Villegas, the mailroom supervisor, informed Bergstrom that
Owen Ware wanted to meet with them in his office. After
Bergstrom and Villegas reported to Ware’s office, the latter
said to Bergstrom that he had a written warning for her and
proceeded to read it to her, word by word. The warning con-
cerned the Charging Party’s conversation with Snyder earlier
that day, and, when Ware finished, Bergstrom said that she
did not understand the problem as they both were on
breaktime and as she saw nothing wrong with her request for
the job description. Ware did not respond, and there is no
evidence of any Respondent rule, prohibiting the disclosure
of such information. Bergstrom subsequently received a copy
of the warning notice, General Counsel’s Exhibit 4, and it
reads as follows:
It was reported to me this morning you were request-
ing information from another Mast employee that ex-
ceeds the ethical boundaries for this organizing effort.
At 9:00 this morning you asked Diane Snyder for a
copy of her position description. You stated to Ms.
Snyder that Cynthia Ruthman had given you informa-
tion regarding her position description. However, Ms.
Ruthman denies that she talked with you about this
matter.
Ms. Snyder had concerns about your request so she
discussed it with her manager, Teresa Hamlett. Ms.
Hamlett expressed her concerns to Human Resources
about her employees being approached during their
scheduled work hours about information related to the
organizing effort. Another concern was the potential un-
settling nature of these inquiries to the other department
employees.
As a copy clerk, it is unacceptable practice that you
ask other employees about or request copies of their po-
sition descriptions. This type of activity or information
does not fall within your job description.
This type of activity requires a written warning be-
cause you were first verbally warned on 8/25/89 about
talking to other employees regarding organizing efforts
during non-scheduled break times for yourself or other
employees.
This incident goes beyond the guidelines of the orga-
nizing effort. Any future occurrence will result in the
appropriate disciplinary action.5
As scheduled, the representation hearing occurred on No-
vember 3, 1989. Bergstrom was present pursuant to her sub-
poena but was not called as a witness. Subsequently, the Re-
gional Director for Region 17 issued a decision on the bar-
gaining unit issues; the Board granted review; and, as of the
date of the hearing, no final decision had been issued. Ac-
cordingly, as of March 2, 1990, the petitioned-for representa-
tion election had not yet been held. On that date, Bergstrom
took her normal lunchbreak, which concluded at 11:45 a.m.
and resumed her job duties. Shortly before noon, mainte-
nance employee Rich Burns approached her in the document
copying center, which adjoins the mailroom. The record re-
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 According to Burns, he met with Brewer at 8:20 a.m. and requested half
an ‘‘earned with pay day’’ (EWP day) in order to go to see his own doctor
as he was in pain, but Brewer refused as ‘‘they didn’t feel it was an emer-
gency.’’ Later in the morning, he telephoned Brewer, and she advised him that
she had arranged a 1 p.m. appointment with the Company’s doctor. Burns
went to her office in the human resources department area and repeated his
request to see his own doctor on EWP time. Again, Brewer refused his re-
quest. During cross-examination, Burns said that he understood that he could
visit his own doctor on his own time but not on company time. Denying that
Burns ever stated that he was in any pain during either of these two meetings,
Brewer testified that, while the former had requested EWP time to see his own
doctor that day, Burns had merely indicated unhappiness with being released
for work at that time.
7 Bergstrom testified that Burns was aware that she had also once been on
workmen’s compensation leave due to a back injury and that she knew some-
thing about how the system worked.
veals that Burns had sustained a back injury in mid-Decem-
ber 1989 and, as a result, had been off work for 6 weeks
until receiving a work release in early February. However, he
continued to experience pain from the injury, and, earlier that
morning, he had met twice with Patti Brewer about seeing
a doctor.6
According to the Charging Party Bergstrom, Burns ex-
plained his problem about obtaining EWP time in order to
see his personal physician regarding his back pain and re-
quested that she accompany him to Brewer’s office and act
as a witness while he renewed his request in the above re-
gard.7 She agreed, told another mailroom employee where
she was going, and went with Burns to Brewer’s office. They
arrived at the human resources area shortly before noon,
were advised that Brewer was speaking on the telephone, and
waited for her to finish her conversation. A few minutes
later, Brewer ushered Burns into her office, and Bergstrom
followed. The latter testified that Brewer asked her why she
was there, and ‘‘I told her that Rick had asked me to go up
there with him as a witness.’’ Brewer replied ‘‘Okay,’’ shut
the office door, and sat down. Brewer, Bergstrom, and Burns
were the only people in the office, and, Bergstrom further
testified, Burns began speaking, explaining his problem to
Respondent’s agent. Brewer responded that Burns’ personal
physician was ‘‘unauthorized’’ and that the Company did not
feel it was an emergency situation as the workmen’s com-
pensation doctor said he was in no pain, and they would fol-
low what he said. At that point, Bergstrom interjected, saying
that when she had been on workmen’s compensation, she
had been to nine doctors and that, as long as authorized, he
could see as many doctors as he wanted. Brewer replied that
‘‘she was speaking to Rick and that I was just there as a wit-
ness and, if I couldn’t be quiet . . . she’d have to ask me
to leave.’’ Burns and Brewer continued talking about doc-
tors, his request for time off, his back pain, and his dis-
satisfaction with what she was telling him about possibly ar-
ranging an appointment with the company doctor for that
day. Bergstrom again interrupted, saying that she was ‘‘con-
fused’’ about what Brewer was saying and that ‘‘you mean
. . . if he went to another doctor and . . . that doctor . . .
told him that he had a ruptured disk and if he turned wrong
that disk could rupture and kill him . . . you wouldn’t care
personally or professionally whether he died on company
property or not.’’ At that comment, according to Bergstrom,
Brewer became ‘‘very upset,’’ walked over to the office
door, and said Bergstrom should leave, ‘‘and I left.’’ As she
departed, the Charging Party turned to Burns and suggested
that he find another witness. Bergstrom added that, while
leaving the human resources department area, she passed by
her supervisor’s office, which is ‘‘maybe’’ 5 feet from Brew-
er’s, and that Ricardo Villegas stopped her and asked some
questions about office supplies. After a few minutes, she left
the area and returned to work. As to the conversation with
Brewer, conceding that the latter was ‘‘upset,’’ Bergstrom
denied that they had been yelling at each other or that she
uttered any profanity and said the entire conversation lasted
no longer than 10 or 15 minutes. During cross-examination,
Bergstrom denied that any policy existed about leaving her
work area during worktime but conceded being upset but
only with regard to the treatment of Burns. Stating that she
made just ‘‘two comments’’ during the meeting, Bergstrom
denied that her conduct disrupted the meeting, that she was
agitated or loud, that she refused twice to leave the office,
and that she yelled back into the office as she left, ‘‘That’s
bullshit, Patti.’’
With regard to the aforementioned meeting, Rich Burns
testified that Bergstrom entered Brewer’s office with him but
could not recall if Brewer shut the door or left it open. Con-
cerning Bergstrom’s presence, he recalled Brewer asking
what Bergstrom was doing there and, after the latter re-
sponded that she was there as a witness, Brewer said ‘‘that
was fine.’’ According to Burns, he began the meeting by re-
newing his request for ‘‘the half EWP day to go see my per-
sonal doctor.’’ Brewer again denied the request as it was not
an emergency and as the company doctor had released him
to work. As to what Bergstrom said during the meeting,
Burns stated that she made two comments. First, ‘‘she said
she went and seen as many doctors as she wanted to and I
could do the same.’’ Brewer’s response was that she should
be quiet as she was just a witness. Then, after Brewer again
denied his request to visit his own doctor on company time,
Bergstrom accused Brewer of not caring ‘‘from a company
standpoint or a personal standpoint that I could rupture a disk
right there and die.’’ Thereupon, Brewer ‘‘turned red in her
face’’ and asked Bergstrom to leave. Bergstrom refused, say-
ing she was there as a witness for Burns. Brewer stood,
walked part way to the door but returned to the desk, sat
down, picked up the telephone, and said to Bergstrom she
would have to get security to escort her out. After again say-
ing, no, Bergstrom arose and left the room. Moments later,
according to Burns, he heard Bergstrom speaking to Ricardo
Villegas who was ‘‘probably 20 feet from the door.’’ As to
the conversation, Burns denied that Bergstrom yelled at
Brewer, used obscenities, said ‘‘bullshit,’’ or interrupted
Brewer. Further, Burns stated that an employee did not re-
quire permission from a supervisor to leave his work area
and that he was not disciplined for being in Brewer’s office
without permission. Finally, Burns testified that, on two ear-
lier occasions when speaking to management about his back
injury, his sister, who is also an employee of Respondent,
had been present as a witness and had been allowed to par-
ticipate in the conversation.
Patti Brewer testified that the noon meeting with Burns
was her third meeting with him on March 2 regarding his de-
sire to see his personal physician about his injured back. Ac-
cording to her, she was speaking on the telephone when
Burns entered her office, with Bergstrom following. Brewer
states that she told Bergstrom that they could speak later as
she was busy, but the employee said she was with Burns.
Brewer said the meeting was only between Burns and her-
825MAST ADVERTISING & PUBLISHING
8 Brewer conceded that she had no objection to Bergstrom being present,
during the conversation with Burns, as a witness.
9 Ricardo Villegas was not called as a witness by Respondent assertedly be-
cause he has no recollection of the events of that day.
self; Bergstrom responded ‘‘I’m here as Rick’s witness’’; and
I said, ‘‘okay.’’ Bergstrom then shut the door, and Burns
began speaking, saying the company doctor was unavailable,
he was in pain, and he could not wait until the doctor was
available. Brewer started to reply, but Bergstrom interrupted
and ‘‘started talking about her worker’s compensation inci-
dent.’’ Brewer stopped her, repeating that the meeting was
only with Burns and telling the latter that she would try to
arrange an early appointment with the company doctor. Once
again, according to Brewer, Bergstrom interrupted, saying
‘‘Patti, that’s bullshit.’’ At that, Brewer repeated that
Bergstrom was not involved in the meeting; the latter replied
that the Company was trying ‘‘to screw’’ Burns and did not
care if he died. Thereupon, Brewer told Bergstrom to be
quiet and, if not, to ‘‘please leave.’’ When Bergstrom re-
fused, Brewer stated her request more forcefully—‘‘there’s
the door, leave.’’ Paying no attention, Bergstrom ‘‘continued
saying bullshit, this company’s trying to screw you, no one
cares.’’ Finally, Brewer testified, she walked from her desk
to the office door and said to Bergstrom ‘‘if you don’t leave,
I will call Security to get you escorted out.’’ Thereupon,
Brewer opened the door, and Bergstrom ‘‘proceeded out.’’
Describing the Charging Party as ‘‘out of control,’’ Brewer
said of her own mental state, ‘‘I was appalled. I was
shocked.’’ She further agreed to being red-faced over
Bergstrom’s behavior. Concluding her direct testimony as to
this incident, Brewer stated that, after the Charging Party de-
parted, she and Burns continued speaking, with her contact-
ing the company doctor and arranging an early appointment
for Burns that day. During cross-examination, Brewer said
that the entire incident lasted no longer than 10 or 15 min-
utes, that Bergstrom ‘‘was dominating’’ what was said, that
she was unable to speak to Burns in such circumstances, that
‘‘I asked her repeatedly to leave at least four times,’’ and
that it took Bergstrom, at least, 2 minutes to leave her of-
fice.8
Respondent called two witnesses in corroboration of Brew-
er’s version of the incident. Margaret Smart, a personnel re-
cruiter for Respondent, has an office in the human resources
department area and situated three offices from that of Brew-
er. She testified that, at approximately noon, she observed
Burns and Bergstrom in the reception area and, 3 or 4 min-
utes later, ‘‘I heard Patti from my office repeatedly saying
leave my office.’’ Then, after a pause, she heard Brewer say
‘‘if you do not leave my office, I’m going to have to call
Security to escort you out.’’ Next, she heard Bergstrom
‘‘yelling this is ridiculous, this company is screwed, and she
was yelling this at a high level of sound.’’ According to
Smart, believing that a ‘‘safety issue’’ was involved, she left
her own office, walked over to Brewer’s, ‘‘peeked’’ inside
where Burns was seated and Brewer was standing beside her
desk, and observed Bergstrom, standing outside Brewer’s of-
fice, beside a file cabinet, ‘‘and yelling this company is
screwed, this is ridiculous.’’ Inasmuch as no one appeared to
be hurt, Smart returned to her office. A few minutes later,
‘‘I heard [Bergstrom] saying to somebody I can’t believe
this, she won’t let me in there. . . . I can’t believe this.’’
Smart looked out of her office and observed Bergstrom
speaking to Ricardo Villegas just inside the latter’s office.
Moments later, Bergstrom walked away from Villegas and
was ‘‘just kind of hell-bent for the door and exited.’’ Mo-
ments later, Burns left Brewer’s office, and, then, Brewer
came out and immediately went into Joan Nicely’s office,
saying ‘‘I can’t believe what just happened.’’ During cross-
examination, Smart said she heard nothing from Bergstrom
until Brewer asked her to leave. She added that the file cabi-
net, next to which Bergstrom stood, is located near Villegas’
office; that the latter’s office is next to that of Brewer and
shares a common wall; that all the offices in that area are
open as the walls do not reach the ceiling; and that ‘‘I can
hear anything if doors are open and people are loud
enough.’’
Joan Nicely, the manager of the compensation and organi-
zational department, testified that, on March 2, as she was
taking a telephone message note to Ricardo Villegas’ office,
she passed by Patti Brewer’s office. The door, which had
been shut, suddenly opened, and Bergstrom came out, saying
in a loud voice, ‘‘that’s bullshit, Patti.’’ During cross-exam-
ination, Nicely, whose own office is two away from Brew-
er’s, said that, notwithstanding having been in the open area,
she did not hear Brewer demand that anyone leave her of-
fice. Further, she did not hear Bergstrom say anything after
her above comment and noticed that the Charging Party im-
mediately left, walking in the opposite direction from Ri-
cardo Villegas’ office, to which Nicely was walking with the
telephone message. Reaching it, Nicely observed that the
door was open and that Villegas was not there.9
During her testimony on cross-examination, Bergstrom de-
nied saying to a security guard, outside the human resources
department, immediately after the incident, that the personnel
people were a ‘‘bunch of fuckers.’’ Contradicting the Charg-
ing Party, Howard McDonald, who works as a security guard
at Respondent’s facility pursuant to a subcontracting arrange-
ment, testified that Bergstrom exited from the human re-
sources area a few minutes after noon on March 2, appeared
to be ‘‘irritable’’ and ‘‘agitated,’’ and said, as she passed the
witness, ‘‘Those fuckers, they don’t care about Rick. Some-
thing like that.’’ Further, during cross-examination,
Bergstrom could not recall, later that afternoon, in the pres-
ence of Cindy Habrock, calling Owen Ware a son-of-a-bitch.
Habrock, who is employed as the administrative assistant to
Respondent’s president, Ron Kennedy, testified that, while
waiting for an elevator on the fifth floor of the facility during
the afternoon of March 2, she heard Bergstrom say ‘‘that
Owen Ware was a son-of-a-bitch and that he wouldn’t allow
Rick to take a half EWP day to go to the doctor.’’
There is no dispute that, as a result of the incident in Patti
Brewer’s office on March 2, 1990, the Charging Party
Bergstrom was given a 3-day disciplinary suspension and
placed on probation for a period of 90 days. The decision to
discipline her was made by Adrian Fitzmaurice, the execu-
tive director of Respondent’s human resources department.
He testified that, on March 2, he returned to the plant, from
a business trip, at approximately 3:30 p.m. and was imme-
diately informed of a ‘‘serious incident,’’ involving Patti
Brewer, which had occurred in her office. Fitzmaurice went
to her office, and Brewer reported in ‘‘some detail’’ as to
what happened. Later that evening, after consulting with
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Patti Brewer testified that, immediately after the incident, she wrote down
her recollection of what had occurred and that, later Fitzmaurice requested that
she submit to him a written report of Bergstrom’s behavior. What she recorded
after the incident comprised her subsequent report to Fitzmaurice and, as will
be discussed infra, has become the basis for Respondent’s discipline of
Bergstrom.
Owen Ware and Woodrow Williams, Fitzmaurice concluded
that Bergstrom’s actions, in Brewer’s office, constituted ‘‘an
extremely serious incident of employee misconduct,’’ which
warranted a suspension in order to permit further investiga-
tion.10 On Monday, March 5, 1990, Bergstrom reported to
work, was informed of the suspension by a security guard,
and, thereafter, met with Fitzmaurice in the latter’s office.
According to the Charging Party, the former told her ‘‘that
they were suspending me for . . . being Rick’s witness.’’
Fitzmaurice did not deny Bergstrom’s testimony and testified
that he informed Bergstrom the suspension period would be
used to investigate a very serious incident that had occurred
and, after meeting with Bergstrom, he spoke to Nicely,
Smart, and, once again, Brewer. Conceding that he never re-
ceived from either Burns or Bergstrom their versions of the
March 2 incident, Fitzmaurice further testified that his final
decision to discipline the Charging Party with a suspension
and a probation period was based solely on his interviews of
Smart, Nicely, and Brewer and consultations with Ware and
Williams, both of whom were not witnesses to what oc-
curred.
The record establishes that General Counsel’s Exhibit 2,
an ‘‘inter-office memo’’ dated March 6, 1990, and assertedly
from Brewer to Fitzmaurice, sets forth Respondent’s ration-
ale for the discipline of Bergstrom. The document reads as
follows:
Background
I have been dealing frequently with Rick Burns regard-
ing his work related accident. Early the morning of
March 2, 1990 (8:20 a.m.), I met with Rick and his
manager Owen Ware to explain the Company’s proce-
dure on using an authorized worker’s compensation
doctor (this meeting was necessary as Rick felt he
could take time off from work at his discretion to see
any doctor, not just the authorized doctor). Later in the
morning, at approximately 11:00 a.m. I again met with
Rick, with Owen present, to discuss once again the
worker’s compensation procedure. Rick at the later
meeting wanted time off work to see an unauthorized
doctor as he was in pain. I advised Rick that he would
need to use EWP or vacation for that usage. In addi-
tion, I instructed Rick to give his authorized doctor, Dr.
Humphrey, a call as he may have specific instructions
for Rick to assist with the pain. Rick agreed to give Dr.
Humphrey a call.
Meeting
At ll:55 a.m. Rick Burns stopped by my office to give
me an update on contacting Dr. Humphrey. As he en-
tered my office, Cathy Bergstrom followed him in. I
told Cathy that I had a meeting with Rick and would
see her after the meeting. Cathy shut the door, sat down
and responded that she needed to be there, ignoring my
comment. I then told her again that this was a meeting
between me and Rick. Cathy said she was Rick’s wit-
ness. I said OK. Rick began telling me how he had
made contact with Dr. Humphrey’s office and Dr.
Humphrey could not get back to him until 5:00 p.m. At
this time Cathy started addressing how she felt the situ-
ation should be handled. I then told her that this was
a conversation between me and Rick. As I continued to
speak to Rick, Cathy very vocally started disagreeing
with what I was telling Rick. Some of Cathy’s com-
ments: ‘‘bullshit, Rick can go to as many doctors as he
wants’’; ‘‘Patti, you are wrong, when I had my accident
I went to nine doctors,’’ etc. I then told Cathy to be
quiet, this was a conversation between me and Rick.
Cathy continued to raise her voice and state her opin-
ions, including ‘‘bullshit, Rick can do what he wants’’;
‘‘the Company is trying to screw you Rick’’; ‘‘he could
fall down and die from a disc problem and that Com-
pany wouldn’t care,’’ etc. I asked Cathy to please
leave. She refused to leave so I again asked her to
leave. When she wouldn’t I stood up and pointed to the
door and again asked her to leave. She continued to
state her opinions and refuse to leave so I went over
to the door, opened it, and told her if she wouldn’t
leave I would get the security guard to escort her out.
At this time Cathy stood up, shouted a few profanities
and said she was calling Ron Kennedy because he
needed to know what we were doing. She then left,
again very loudly stating her opinions as she walked
through the department.
I then asked Rick to stay, as he started to follow Cathy
out of the office. Rick did stay and I proceeded to
apologize to Rick for the distraction and continued with
the meeting.
The Company is suspending Cathy Bergstrom for three
days and placing her on probation for 90 days for the
following reasons:
1) Extreme Insubordination
A. Cathy refused a reasonable request from Patti
Brewer when Patti requested that she not interfere or be
present at a meeting with Rick Burns (regarding a per-
sonal workmen’s compensation situation). Cathy shut
Patti’s door, refused the request, and demanded she stay
in Patti’s office as a witness for Rick Burns.
B. During the meeting, Cathy rudely interrupted with
loud profanity and intimidation. Patti Brewer asked
Cathy several times to remain silent, Cathy ignored this
request and continued to interrupt.
C. Cathy refused Patti Brewer’s request to leave her
office. Patti had to ask four or five times for Cathy to
leave, finally having to stand and point to the door and
then going to the door opening it and having to threaten
to ask security to remove Cathy.
2) Gross Misconduct
A. Cathy had no authorization or permission from
her management to be away from her work area, or to
be in Human Resources for any reason.
B. Cathy has no authorization to interfere with com-
pany business. Workmen’s compensation insurance is
handled by Hartford Insurance company.
827MAST ADVERTISING & PUBLISHING
11 Fitzmaurice also conceded that he had no knowledge of the statement of
security guard McDonald at the time he decided to discipline Bergstrom and
that, therefore, reason 3(b) was not relied on for his decision.
12 I place no reliance on the testimony of either of Respondent’s supervisors,
Jones or Vaughn. Neither impressed me with her veracity nor did either testify
in as much detail as did Requinton and Eagleson. Further, it appeared that the
testimony of each was designed to buttress the mendacious testimony of Brew-
er and, therefore, cannot be relied on.
3) Profane and vulgar language
A. Cathy used profane and loud language during this
incident that’s unacceptable in this work environment.
B. Subsequently, I found that Cathy had called Owen
Ware, our Facilities Manager, a ‘‘son of a bitch,’’ and
the employees in Human Resources ‘‘fuckers.’’
Patti Brewer testified that, while she did not prepare the
above document, what is found beneath the headings ‘‘back-
ground’’ and ‘‘meeting’’ is a verbatim reproduction of her
written report of the March 2 Bergstrom incident, which she
submitted to Fitzmaurice. The latter testified that he prepared
the remainder of the document and that, while ‘‘I didn’t put
equal weight on each one,’’ the listed reasons constitute all
that he relied on in disciplining the Charging Party. He con-
tinued, stating that ‘‘the central core of the whole thing was
gross misconduct, inappropriate behavior.’’ Finally, asked
about Bergstrom’s August 25 verbal warning and her No-
vember 2 written warning, Fitzmaurice conceded ‘‘that was
factor I considered. . . . One of many factors.’’11
B. Analysis
Initially, with regard to the legality of Respondent’s em-
ployee handbook provision, relating to the confidentiality of
wage rate information, I note that, traditionally, the Board
has found such restrictions to be unlawful, notwithstanding
the presence or absence of penalties for their breach, as
‘‘. . . they restrain employees in the exercise of their rights
to engage in concerted activities by interfering with free dis-
cussion concerning the critical issue of wages.’’ Electronic
Data Systems, 278 NLRB 125, 130 (1986); W. R. Grace
Co., 240 NLRB 813, 816 (1979). Herein, quite obviously, by
terming information, regarding rates of pay, ‘‘private’’ and
‘‘confidential,’’ Respondent meant nothing less than em-
ployee discussion of said subject was prohibited. Moreover,
Respondent has failed to establish any ‘‘substantial and le-
gitimate business justification’’ for its policy of confidential-
ity. L. G. Williams Oil Co., 285 NLRB 418 (1987); Inter-
national Business Machines Corp., 265 NLRB 638 (1982). In
these circumstances, Respondent’s handbook provision must
be found violative of Section 8(a)(1) of the Act. Apparatus
Service, 296 NLRB 581 (1989); Electronic Data Systems,
supra.
Turning to Patti Brewer’s meeting with employees on Oc-
tober 31, 1989, and the allegation that, during the meeting,
concerning a new employee savings plan, she threatened em-
ployees with loss of benefits if they aided or assisted the
Union, given the disparity in the accounts of what was said,
credibility resolutions are mandated. In this regard, while
Donna McKenzie, an ardent supporter of the Union and one
admittedly sensitive to any hint or suggestion of possible loss
of benefits due to the Union, asserted that Brewer warned
that employees would receive the less desirable Southwestern
Bell nonsalaried employee savings plan and would not be
given as good a benefits if they selected the Union, her testi-
mony was uncorroborated, and I place no reliance on what
must be perceived as a biased and distorted account of Brew-
er’s comments. However, employees Helene Requinton and
Tania Eagleson both impressed me with their candor and the
straightforward nature of their respective testimony. Thus,
both women candidly recalled that Brewer told the assem-
bled employees that the new savings plan would be the
Southwestern Bell salaried employees plan, which included
an 80-percent employer match, and that, in response to a
question posed by Lavon Hawkins and in a low voice, Brew-
er warned that if the Union came in, they would only receive
a 60-percent match. Further, both women recalled that
Requinton asked a followup question and that Brewer con-
firmed her answer to Hawkins. In contrast to Requinton and
Eagleson, Brewer appeared to be a most disingenuous wit-
ness throughout her testimony, one not worthy of belief, and
I do not credit her testimony as to her asserted responses to
either Hawkins or Requinton. In this regard, I do not believe
that Brewer framed her responses in terms of collective bar-
gaining. Thus, her own testimony, on this point, was vague
and inconsistent, and, during cross-examination on this issue,
Requinton was certain that the plain meaning of what Brewer
said was that the Southwestern Bell nonsalaried employees’
savings plan would be a benefits limit if the employees se-
lected the Union rather than referring to the matter as a
bargainable issue.12 I credit the more candid Requinton and,
based on the foregoing, and the record as a whole, I am con-
vinced that Brewer’s response to Lavon Hawkins, reiterated
to Helene Requinton, was nothing less than an obvious threat
of reduced benefits if the employees selected the Union as
their bargaining representative and was, thus, violative of
Section 8(a)(1) of the Act.
The remaining allegations of the consolidated complaint
involve Mary C. Bergstrom. Initially, concerning the verbal
warning issued to her on August 25, 1989, there is no dis-
pute that Respondent did not maintain a no-solicitation rule
in effect at the time and that, as a result of a conversation
in a restroom while Bergstrom was working, Owen Ware
called the Charging Party to his office and informed her that
she was to restrict her soliciting for the Union to her lunches
and break periods. The right of employees to communicate
with each other concerning the desirability of organizing is
one which is protected by Section 7 of the Act. Foley-
Wismer & Becker, 263 NLRB 793, 797 (1982). Further, it
is a longstanding tenet of Board law that, when an employer
has failed to adopt and publish a valid rule regulating union
activity during worktime, discipline for that reason will be
upheld only when the employer demonstrates that it acted in
response to an actual interference with or disruption of work.
Trico Industries, 283 NLRB 848, 852 (1987); Foley-Wismer,
supra. Herein, Respondent has proffered no business jus-
tification for imposition of this unpublished rule on
Bergstrom nor offered any evidence that the Charging Par-
ty’s conduct caused a disruption of work. In these cir-
cumstances, noting Respondent’s knowledge of Bergstrom’s
union activities, the absence of any rule prohibiting employ-
ees from talking while they worked, and the fact that Re-
spondent tolerated antiunion activity during worktime, I am
compelled to find that, by issuing a verbal warning to
Bergstrom on August 25, 1989, Respondent unlawfully dis-
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Respondent denies the coercive effect of Ware’s conduct, arguing that
such was de minimis, did not place Bergstrom’s job in jeopardy, and con-
stituted a ‘‘tribute’’ to her Sec. 7 rights. Given the unfair labor practices
found, this particular violation can hardly be deemed de minimis and, as will
be seen infra, was one of the underlying factors for her 3-day suspension. In
such circumstances, this egregious labor practice stands as an odd ‘‘tribute’’
to Bergstrom’s protected concerted activities. The same defense is offered as
to the allegations involving the November 2 written warning and, for the same
reasons, is equally lacking in merit.
14 I was not impressed with either of the ostensibly corroborative witnesses,
Margaret Smart and Joan Nicely, called by Respondent. Thus, I note that they
utterly contradicted each other as to the presence of Ricardo Villegas. Further,
Smart, who assertedly overheard much of what was said in Brewer’s office,
contrary to the latter, mentioned nothing about Bergstrom cursing. Finally, de-
spite the fact that Smart, who was in her office which is three offices removed
from that of Brewer, assertedly overheard what must have been shouting ema-
nating from the latter’s office and Brewer’s characterization of Bergstrom as
being ‘‘out of control,’’ Nicely, who supposedly was in the open area, heard
nothing from inside Brewer’s office until Bergstrom opened the door. I place
no reliance on the testimony of either woman.
criminated against her in violation of Section 8(a)(1) and (3)
of the Act. Trico Industries, supra; Greensboro News Co.,
272 NLRB 135 (1985).13
Regarding the November 2, 1989 written warning issued
to Mary C. Bergstrom, there is no dispute that such involved
her request that Diane Snyder, whose status as an alleged
confidential employee and whose inclusion or exclusion from
the bargaining unit was to be litigated at the representation
case hearing the next day, provide the Charging Party with
a copy of her job description. The warning itself asserted that
Bergstrom’s request ‘‘exceeds the ethical boundaries for this
organizing effort’’; stated that her activity constituted ‘‘unac-
ceptable practice’’ which ‘‘does not fall within your job de-
scription’’; and that ‘‘this incident goes beyond the guide-
lines of the organizing effort’’; and mentioned the above Au-
gust 25 ‘‘verbal’’ warning as the reason for this written
warning. As above, there is no contention that Respondent
had in effect at that time any rule, prohibiting the disclosure
of the requested information. Two inferences are justified
from the foregoing. First, Respondent linked Bergstrom’s re-
quest to her union activities, and, as is evident from the Au-
gust 25 verbal warning, Respondent was hardly reticent in
interfering with her protected concerted activities. Next,
given the facts that Respondent was aware that Bergstrom
was scheduled to be a witness at the hearing the next day
and that the status of Snyder would be litigated, the inference
is warranted that Respondent’s purpose was to limit the in-
formation available to the Union at the hearing. Although
Respondent offered no evidence in support of its contention
that the warning was not unlawful, to the extent that one
may argue that the requested information was confidential,
there is no evidence that job descriptions are considered
‘‘private business records’’ or kept in confidential files, and
the fact that the issue was to be litigated in a public forum
the next day militates against such a finding. Roadway Ex-
press, 271 NLRB 1238, 1239 (1984). Further, the Board has
long held that employees are protected in merely requesting,
as opposed to actually coming into possession of, assertedly
confidential material. Ridgely Mfg. Co., 207 NLRB 193, 197
(1973). Accordingly, based on the linkage to Bergstrom’s
union activity and to the prior, discriminatory verbal warn-
ing, on the lack of any evidence as to the confidential or pri-
vate nature of the requested document, and on Respondent’s
demonstrable aversion to Bergstrom’s union activity, the con-
clusion is warranted that, by issuing the November 2, 1989
written warning notice to Bergstrom, Respondent discrimi-
nated against her in violation of Section 8(a)(1) and (3) of
the Act. Ridgely Mfg. Co., supra.
Turning to the most serious and factually complex of the
alleged unfair labor practices, involving Bergstrom, her 3-day
suspension, and subsequent placement on probationary status
by Respondent, there is no dispute that not only was the
Charging Party fervently involved in the Union’s organizing
campaign but also Respondent was well aware of her activi-
ties. While counsel for the General Counsel contends that
Respondent’s above-described March 1990 discipline of
Bergstrom was motivated, in part, by the discriminatory
warnings of August 25 and November 2, 1989, and by her
participation as a witness during the March 2 conversation
between Patti Brewer and Rick Burns, Respondent asserts
that the discipline was as a result of Bergstrom’s disruption
of that meeting. In Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 453 U.S. 989
(1983), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983), the Board established a two-part
causation test in cases, such as involved, which turn on em-
ployer motivation. First, the General Counsel assumes the
burden of establishing a prima facie showing that protected
activity was a ‘‘motivating factor’’ in the employer’s deci-
sion. On such a showing, a respondent can ‘‘avoid liability’’
by demonstrating, as an affirmative defense, that the same
action would have taken place even in the absence of the
protected conduct. D & S Leasing, 299 NLRB 658 (1990);
Seattle Seahawks, 292 NLRB 899 (1989). The crucial in-
quiry, in cases such as this, is ‘‘not whether the Respondent
could have [disciplined the alleged discriminatee] for [her]
conduct, but rather whether the Respondent would have done
so in the absence of [her] protected activity.’’ Filene’s Base-
ment Store, 299 NLRB 183 (1990).
To a great extent, analysis as to whether Respondent’s
conduct was violative of the Act depends on a resolution of
the credibility of the three participants in that March 2, 1990
meeting—Bergstrom, Burns, and Brewer. As to Brewer, I
have discussed my finding that she appeared to be a menda-
cious witness and should not be credited.14 Although to a
lesser extent than Brewer, Bergstrom also was not a particu-
larly impressive witness. I believe that the Charging Party
was dissembling when describing her state of mind both dur-
ing and immediately after the incident in Brewer’s office and
as to complying with the supervisor’s requests to leave the
office and shall credit her testimony only when
uncontroverted, as with regard to the August 25 and Novem-
ber 2, 1989 warnings, or where corroborated by documentary
evidence or more credible testimony. Without doubt, the
most impressive of the three witnesses was Rick Burns. He
testified in an entirely candid and truthful manner and ad-
versely to the pecuniary interests of his employer and shall
be credited as to what was said in Brewer’s office. Based on
the foregoing, and the record as a whole, as to this incident,
I find that Bergstrom followed Burns and Brewer into the
latter’s office and Brewer assented to Bergstrom remaining
as a witness; that Burns renewed his earlier request to be
given half an EWP day in order to visit his personal physi-
cian with regard to his back pain; that Bergstrom twice inter-
jected with comments, saying that she had visited as many
doctors as she wanted and Burns could do the same and,
829MAST ADVERTISING & PUBLISHING
15 While I recognize that whatever was said by Bergstrom was not in the
context of collective bargaining or the adjusting of a grievance, I, nevertheless,
conclude that her comment, that Brewer did not care if Burns ruptured a disk
and died, was not ‘‘so opprobrious’’ as to warrant the imposed discipline. Ha-
waiian Hauling Service, 219 NLRB 765, 766 (1975).
16 Although never explained by Fitzmaurice, stated reason 2B seems to in-
volve Bergstrom’s presence as a witness. Noting that Bergstrom clearly had
received Brewer’s permission to remain as a witness, I have previously stated
my conclusion that acting as a witness was a form of protected concerted ac-
tivity, privileged by Sec. 7 of the Act.
after Brewer continued to deny Burns’ request, accusing
Brewer of not caring if Burns ruptured a disk and died; that
Brewer ordered Bergstrom to be quiet after her initial com-
ment and, after her second comment, became angry and
asked Bergstrom to leave the office; that, after Bergstrom re-
fused to leave, Brewer threatened to call security in order to
escort her out; that, after again refusing, Bergstrom engaged
in a conversation with Ricardo Villegas no more than 20 feet
from the door to Brewer’s office.
As stated above, there is no dispute that Bergstrom en-
gaged in activities in support of the Union’s organizing cam-
paign of Respondent’s employees and that Respondent was
aware of her activities. Moreover, there is record evidence
that her 3-day disciplinary suspension and placement on pro-
bationary status were motivated by her support for the
Union. Thus, Adrian Fitzmaurice admitted that the fact that
Bergstrom received a verbal warning on August 25, 1989,
and a written warning on November 2, 1989, was a factor
in his decision to impose the above discipline, and I have
previously concluded that the warnings were discriminatorily
motivated and, therefore, violative of Section 8(a)(1) and (3)
of the Act. It follows, of course, that the March 1990 suspen-
sion and probation were, likewise, at least, in part, unlaw-
fully motivated. Moreover, the record establishes that
Bergstrom’s presence, as a witness, at the March 2 meeting
was a factor in Fitzmaurice’s decision to discipline her.
Thus, he failed to specifically deny the alleged
discriminatee’s testimony that, when they met on March 5,
he told her that ‘‘they were suspending me for . . . being
Rick’s witness,’’ and, included in General Counsel’s Exhibit
2 under the heading ‘‘Gross Misconduct’’ is Fitzmaurice’s
comment, ‘‘[Bergstrom] has no authorization to interfere
with company business.’’ Given his uncontroverted comment
to Bergstrom, Fitzmaurice’s quoted statement, I believe,
clearly refers to her presence as a witness. While counsel for
the General Counsel has not cited, nor can I find, any prior
Board decision on this point, there can be no doubt that
Bergstrom was engaged in protected concerted activity while
acting as the witness for Rick Burns—with Respondent’s
permission. Thus, it logically follows that, if requesting a
witness constitutes a statutorily protected right, acting in such
a capacity must, likewise, be privileged. E. I. Du Pont &
Co., 289 NLRB 627, 630 fn. 15 (1988). Further, by defini-
tion, acting in the capacity of a witness for a fellow em-
ployee during a meeting with their employer involves ‘‘two
or more employees . . . working together at the same time
and place toward a common goal,’’ the sine qua non of con-
duct protected by Section 7 of the Act. El Gran Combo de
Puerto Rico v. NLRB, 853 F.2d 996, 1002 (1st Cir. 1988).
Also, it is well established that the language of Section 7 of
the Act is not to be narrowly construed as to the meaning
of concerted activity for mutual aid and protection. NLRB v.
City Disposal Services, 465 U.S. 822, 831 (1984). In these
circumstances, I find that the General Counsel has estab-
lished a prima facie case of unlawful motivation underlying
the March 1990 suspension and probation imposed on
Bergstrom by Respondent.
Pursuant to the Wright Line analytical approach for mixed
motive discharge cases, the burden shifted to Respondent to
establish that, notwithstanding the existence of the aforemen-
tioned unlawful motivation, it would have imposed discipline
on the Charging Party. In this regard, while counsel for Re-
spondent described Bergstrom, during the incident, as ‘‘an
insubordinate hothead, a fugitive from her work place, and
spoiling for a fight with management,’’ based on the record
as a whole, I do not believe that Respondent would have dis-
ciplined Bergstrom absent the prior warnings in her file and
her protected concerted activity. At the outset, the credited
testimony of Rick Burns establishes that, while she was
present during the meeting between the former and Brewer,
Bergstrom, at most, twice interrupted the conversation; made
a tasteless and, perhaps, insulting comment, which seemingly
upset Brewer; and, after initially refusing and being threat-
ened with eviction, reluctantly left Brewer’s office. While
one may justifiably characterize Bergstrom’s conduct as in-
temperate, and even assuming Brewer was justified in de-
manding that Bergstrom leave, she hardly appears to have
been, in Brewer’s words, ‘‘out of control’’ or, in counsel’s
words, a ‘‘fugitive’’ or a ‘‘renegade.’’ In fact, rather than as-
sertedly establishing her outlandish behavior, Respondent’s
hyperbole, in portraying Bergstrom in the foregoing unfavor-
able light, lends further credence to my opinion that her con-
duct was no worse than described and would not have war-
ranted discipline absent her protected concerted activities.15
That this conclusion is correct may best be seen from an
analysis of the sophistical rationale for Bergstrom’s dis-
cipline, as set forth by Fitzmaurice in General Counsel’s Ex-
hibit 2. The initial reason (1A) is that the Charging Party re-
fused Brewer’s request that she not be present during the
March 2 meeting and demanded to remain as a witness. Con-
trary to Fitzmaurice, even crediting Brewer’s version of the
meeting confirms that not only did Bergstrom never demand
to stay or refuse a request not to be present but also Brewer
gave the former permission to remain as a witness.16 As to
the assertions that Bergstrom rudely interrupted with loud
profanity and refused four or five requests to leave Brewer’s
office (reasons 1B, 1C, and 3A), I have previously credited
Rick Burns’ version of what occurred inside Brewer’s office
and, therefore, conclude that, while she, in fact, interjected
with comments, including a rather tasteless remark,
Bergstrom never uttered a curse word and that, at most,
Brewer only twice ordered Bergstrom to leave her office.
Moreover, regarding the fact that Bergstrom attempted to
participate in the discussion by offering her view concerning
Burns’ right to visit a personal physician, it was uncon-
troverted that the latter’s sister, who is an employee of Re-
spondent, was a witness during earlier meetings between
Burns and management officials and participated in the dis-
cussion without being disciplined for such involvement. Fi-
nally, while stated reason 2A asserts that Bergstrom had no
authorization to be away from her work area during the inci-
dent, there is no record evidence that a rule, requiring such
permission, was in effect at the time, and Burns, who failed
to seek prior permission to go to the human resources area,
was never disciplined for said failure. Accordingly, taking
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set forth in the 1986 amendment to
26 U.S.C. § 6621.
18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
the foregoing factors into consideration and noting that
Fitzmaurice conducted his ‘‘inquiry’’ into the events of
March 2 without obtaining the versions of either Bergstrom
or Burns and that he admitted Bergstrom’s prior warnings,
which, I have concluded, were discriminatorily imposed,
formed a basis for his disciplinary decision, I find that Re-
spondent failed to satisfy its burden of establishing that it
would have taken the identical action against Bergstrom ab-
sent her protected concerted activities and that, using the
Charging Party’s above-described intemperate conduct as a
convenient excuse, Respondent, in fact, imposed the dis-
cipline against her because of her conduct in support of the
Union and because she acted as a witness for Burns at the
March 2 meeting in Patti Brewer’s office. In these cir-
cumstances, Respondent’s act of suspending Bergstrom and
placing her on probation was violative of Section 8(a)(1) and
(3) of the Act. CTS Keene, Inc., 247 NLRB 1016 (1980).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening its employees with reduced benefits if
they aided or supported the Union, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act.
4. By maintaining, in effect, an employee handbook provi-
sion which mandates the confidentiality of its employees’
rates of pay, Respondent engaged in conduct violative of
Section 8(a)(1) of the Act.
5. By issuing a verbal warning to employee Mary C.
Bergstrom, that she restrict her activities on behalf of the
Union to her lunches and break periods, at a time when Re-
spondent did not maintain a rule, prohibiting such conduct
during worktime, in effect, Respondent engaged in conduct
violative of Section 8(a)(1) and (3) of the Act.
6. By issuing a written warning to employee Mary C.
Bergstrom because she engaged in conduct in support of the
Union, Respondent engaged in conduct violative of Section
8(a)(1) and (3) of the Act.
7. By imposing a 3-day suspension on employee Mary C.
Bergstrom and by placing her on probationary status for a
period of 90 days, Respondent engaged in conduct violative
of Section 8(a)(1) and (3) of the Act.
8. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in serious unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
from such conduct and to take certain affirmative action de-
signed to effectuate the purposes and policies of the Act.
With regard to the employee handbook provision which man-
dates the confidentiality of employees’ rates of pay, I shall
recommend that Respondent be ordered to remove the provi-
sion from the employee handbook. As to the discriminatory
discipline, which has been imposed against Mary C.
Bergstrom because of her union activities, I shall recommend
that Respondent be ordered to rescind such and to remove
all references to the verbal warning of August 25, 1989, the
written warning of November 2, 1989, and the suspension
and the probationary status imposed as a result of the inci-
dent of March 2, 1990, from its files; that Respondent be or-
dered never to use the unlawful acts as a basis for disciplin-
ing Bergstrom in the future; and that Respondent be ordered
to make Bergstrom whole for any lost earnings as a result
of her suspension, with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).17 Addition-
ally, I shall recommend that Respondent be ordered to post
a notice, setting forth its obligations.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Mast Advertising & Publishing, Inc.,
Overland Park, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Suspending, placing on probation, issuing written
warnings, or otherwise disciplining employees because they
engaged in union or other protected concerted activities.
(b) Issuing verbal warnings to employees that they should
restrict union activities to their lunches or break periods
when no rule, prohibiting such conduct during worktime, was
in effect.
(c) Maintaining in effect in its employee handbook a rule,
which mandates the confidentiality of its employees’ rates of
pay.
(d) Threatening its employees with reduced benefits if they
aid or support a union.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make employee Mary C. Bergstrom whole for any
wages lost as a result of her unlawful suspension in the man-
ner set forth under the remedy above.
(b) Rescind and expunge from its files any references to
the August 25, 1989 verbal warning, the November 2, 1989
written warning, and the suspension and placement on proba-
tionary status in March 1990 of Bergstrom and notify her,
in writing, that this has been done and that evidence of the
discipline will not be used as a basis for any future personnel
action against her.
(c) Remove from its employee handbook the provision
which mandates that employees keep confidential any infor-
mation regarding their rates of pay.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facility in Overland Park, Kansas, wherever
notices to employees are customarily posted copies of the at-
831MAST ADVERTISING & PUBLISHING
19 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
tached notice marked ‘‘Appendix.’’19 Copies of the notice on
forms provided by the Regional Director for Region 17, after
being signed by Respondent’s authorized representative, shall
be posted for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.