Mast Advertising & Publishing, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1987

286 N.L.R.B. 955 (N.L.R.B. 1987)

MAST ADVERTISING
Mast Advertising & Publishing, Inc. and Communi-
cations Workers of America, AFL-CIO. Cases
17-CA-13106-1, 17-CA--13106-2, 17-CA-
13106-3, and 17-CA-13148
19 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 19 May 1986 Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions, to modify the remedy,3 and to
adopt the recommended Order.
i No exceptions were taken to the complaint allegations dismissed by
the judge
2 The Respondent has excepted to some of the judge 's credibility find-
mgs. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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
We agree with the judge that the Respondent violated Sec . 8(axl) by
soliciting grievances and implicitly promising to remedy the employees'
complaints. The Respondent 's entire course of conduct, urging employees
to voice their grievances and stressing that "only by two-way communi-
cation can we resolve any problem," its meetings with employees in
which the Respondent 's representatives promised to look into employee
complaints and bring them to the attention of higher management, and
the unprecedented 7-hour meeting at which the Respondent emphasized
that problems should be handled within the, Company and without the
Union , lead to the conclusion that the Respondent solicited and impliedly
promised to remedy those areas of employee dissatisfaction which led the
employees to seek union representation
In affirming the judge's finding that the Respondent was aware of em-
ployee Kistenmacher 's union activities, we emphasize that at a party held
in a motel room and in the presence of Kistenmacher ' s supervisor, Fis-
chel, a discussion was held concerning the Union , and a statement was
made that things would change when Kisterimacher became steward. In
addition , a statement made by Western Region Area Manager Croom to
an employee that the union drive would fail because there were, at most,
two union supporters in the central region and none in the east (at the
time, Kistenmacher was the only central region employee engaged in
union activities), further supports the inference that the Respondent's
management officials learned of Kistenmacher 's activities Finally, the
fact that Kistenmacher was discharged 4 working days after employees
McAbee and Shorr were unlawfully reassigned , further supports the in-
ference that the Respondent was aware of Kistenmacher 's union activi-
ties See Marion Center Supply, 277 NLRB 262 fn 3 (1985)
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C. § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
ORDER
955
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mast Ad-
vertising & Publishing, Inc., Overland Park,
Kansas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Stephen Wamser, Esq., for the General Counsel.
John K Bestor, Esq. and Richard L. Connors, Esq. (Stin-
son, Mag, & Fizzell), of Kansas City , Missouri , for the
Respondent.
William M. Franz, Esq., of St . Louis , Missouri, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On
original charges filed by the Union in Cases 17-CA-
13106-1 and 17-CA-13106-2 on 2 September 1986,' the
original charge in Case 17-CA-13106 on 4 September,
and the original charge filed in Case 17-CA-13148-3 on
6 October, the Regional Director for Region 17 of the
National Labor Relations Board issued a complaint
against Mast Advertising & Publishing, Inc. (the Re-
spondent) on 19 November which alleged, inter alia, that
Respondent violated Section 8(a)(1) of the National
Labor Relations Act (the Act), by engaging incertain de-
scribed conduct, and that it violated Section 8(a)(3) of
the Act by assigning employees Wylie McAbee and Joel
Shorr to described work during the period extending
from 28 July to 3 November and by discharging employ-
ees Larry Kistenmacher and Joel Shorr on 11 August
and 1 October, respectively. Respondent timely filed
answer denying it had engaged in the unfair labor prac-
tices alleged in the complaint. Thereafter, on 12 Janaury
1987, an amendment to consolidated complaint was
issued by the Region.2 Respondent filed timely response
denying subparagraphs 5(a), (b), (d), and (e) of the com-
plaint as amended.
The case was heard in Kansas City, Kansas , during the
period 17 February through 20 February 1987. All par-
ties appeared and were afforded full opportunity to par-
ticipate. The General Counsel and Respondent filed
briefs subsequent to the close of the hearing. On the
entire record, and from my observation of the demeanor
of the witnesses who appeared to give testimony, I make
the following
i All dates herein are 1986 unless otherwise indicated
2 The document amended par 5, subpars (a), (b), (d), and (e) of the
complaint by deleting the June 6, 1986 allegation from subpar (a);
changing "Mt Vernon, CA " in subpars (a), (b), and (d), to "Mt
Vernon, Washington", changing "August 14, 1986" in subpar (b) to
"August 15, 1986", and adding after Barbara Simon in subpar (e) "June
27, 1986, by Internal Office memo to all Premise Sales Representatives "
286 NLRB No. 99
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The record reveals that Mast Advertising & Publish-
ing, Inc., a wholly owned subsidiary of Southwestern
Bell, with an office and place of business at 500 West
110th Street, Overland Park, Kansas, is engaged in the
business of soliciting yellow page advertising and pub-
lishing telephone directories for a number of independent
telephone companies. During the 12-month period pre-
ceding issuance of the complaint, it purchased from, and
sold to, customers located outside the State of Kansas
products, goods, and services valued, in both instances,
in excess of $50,000, and, during the same period, its
gross revenue exceeded $500,000. It is admitted, and I
find, that Respondent is now, and has been at all times
material , an employer engaged in commerce within the
meaning of Section 2(a)(6) and (7) of the Act.
II. THE STATUS OF LABOR ORGANIZATION
It is admitted , and I find , that Communications Work-
ers of America , AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the business of publishing
telephone directories for independent telephone compa-
nies. In return for the privilege of printing directories for
such customers, it pays them fees which may amount to
as much of 50 percent of the revenue it obtains by selling
yellow page advertising in the directories. To sell adver-
tising , it utilizes telemarketing representatives, who sell
advertising by phone, and premises representatives, who
sell advertising by physically visiting prospective cus-
tomers.
At the time of the hearing, Respondent published 452
directories for telephone companies spread throughout
42 states. It employed 38 telemarketing representatives
and 95 premise representatives. Structurally, its operation
was divided into three regions, i.e., western, central, and
eastern. Its headquarters is located in Overland Park,
Kansas. The employees involved in the instant case
worked in its western and central regions. The general
manager of its western region is one George Neal.
Albert Wells is its general manager iwthe central region.
The corporate office personnel involved in the case are:
Ron Kennedy, president; Lorry Weatherson, executive
director national sales ; and Barbara Simon, director of
human resources.3
B. The Organizational Campaign
In late April or early May 1986 , the Union com-
menced a campaign to organize Respondent's premise
representatives by directing correspondence to premise
3 It is admitted , and I find, that the named corporate officers, the re-
gional managers , area managers (named hereinafter), and Administrative
Marketing Manager Carol Williamson are agents of Respondent and are
supervisors within the meaning of Sec 2( 11) and (13) of the Act.
representative Jim Williams, who was employed in Re-
spondent's western region. Williams sent the correspond-
ence to Wylie McAbee, a fellow premise representative
who was employed in the northern area of the western
region. McAbee then contacted Union Representatives
Tom Parsons and Vic Crawley, who requested that
McAbee discuss unionization with his fellow premise
representatives. McAbee thereafter contacted an undis-
closed number of Respondent's premise representatives
assigned to the western region and a meeting with union
representatives was scheduled to be held at the Execu-
lodge Motel in Mount Vernon, Washington, on 11 June.
On a Saturday in late May, premise representative
Frank Nottoli, who had formerly been the area manager
of the central area of Respondent's western region, was
contacted concerning union representation of the premise
representatives. On the Tuesday before Memorial Day,
he telephoned George Neal, general manager of the
region, and advised him of the contact. Neal asked him
who had contacted him and who else was involved. Not-
toli claims he replied he would rather not say to both in-
quiries. Neal terminated the conversation indicating he
would get back to Nottoli. Shortly thereafter, Neal
called Nottoli to tell him Weatherson was going to call
him. Weatherson called soon thereafter and Nottoll testi-
fied he told him basically the same thing he had told
Neal. Weatherson asked him whether Wylie McAbee
was involved. Nottoli claims he replied he would rather
not say. Weatherson ended the conversation by telling
the employee "Well, thanks for informing us and feel
free to call any time and keep us informed." Nottoli said
he would.
Union Representative Crawley met with two groups
of premise representatives employed in Respondent's
western region on 11 and 12 June. On 11 June, he met
with employees Joel Shorr, McAbee, Dale Russell, and
Frank Pape at a motel in Mt. Vernon, Washington. All
four signed union authorization cards. On 12 June, he
met with 10 premise representatives, including Gary
MacDonald and Frank Nottoli, at a motel in Ridgecrest,
California. The employees, who were all employed in
the central area of Respondent's western region, all
signed authorization cards.
In late June or early July, McAbee contacted premise
representative Larry Kistenmacher, who was assigned to
Respondent's central region. After informing Kisten-
macher the western region employees were involved in
union activity, McAbee gave him Union Representative
Crawley's phone number. Kistenmacher contacted Craw-
ley around 4 July and the union agent sent him authori-
zation cards to be executed by central region representa-
tives. Thereafter, on 24 July, Kistenmacher held a meet-
ing of premise representatives assigned to the directory
canvass he was working on in his motel room in De
Kabl, Illinois. Kistenmacher, Jim Eeten, Larry Gibson,
Jean Malano, Sharon Koot, Doug Beyers, Joe Muetzel,
and Scott Eddy attended the meeting. All but Jim Eeten
and Jean Malano signed cards at the meeting
About a week after Kistenmacher held the above-de-
scribed meeting, the central region representatives as-
signed to work the De Kalb sales campaign (canvass)
MAST ADVERTISING 957
were gathered in one of the rooms of the motel having
drinks and cooking steaks . Gregory Fischel, their area
manager , joined the group and premise representative
Larry Gibson initiated a discussion of the Union by
asking Fischel if he remembered telling him that if there
was a union he wanted to be a member. After Fischel
denied that , Gibson commented things would change
when Kisty (Larry Kistenmacher) would get to be union
steward.
C. Respondent 's Reaction to the Union Campaign
The record reveals Respondent 's management officials
learned almost immediately that the union was attempt-
ing to organize its premise representatives . The com-
plaint alleged , and the General Counsel contends, that
Respondent, principally through the acts and conducts of
its corporate officials and regional managers , engaged in
numerous independent violations of Section 8(a)(1) of the
Act during the organization campaign . Additionally, the
complaint alleges that premise representatives Joel Shorr
and Larry Kistenmacher were discharged in violation of
Section 8 (a)(3), and that Shorr and Wylie McAbee were
assigned to less desirable work because they were known
by management to the be union advocates . The acts and
conduct alleged to be unlawful are developed chronolog-
ically below.
1. Weatherson 's late May or early June
conversation with Frank Nottoli
As noted , supra, in late or early June , after learning
from Regional Manager Neal that Nottoli had voluntari-
ly told him the Union was attempting to organize
premise representatives , Weatherson telephoned Nottoli.
In conversation with Neal , Nottoli had previously indi-
cated he would talk to Weatherson . During , their conver-
sation , Nottoli repeated to Weatherson the information
he had volunteered to Neal . Weatherson then asked if
Wylie McAbee was involved , and Nottoli said he would
rather not say. Thereupon, Weatherson informed Nottoli,
"Well, thanks for informing us and feel free to call us
any time and keep us informed ." Nottoli stated he
would.
The record reveals Nottoli was , area manager of the
central area of Respondent's western region from No-
vember 1984 to 15 April 1986. Despite the fact that he
voluntarily contacted Respondent to inform his prior
manager supervisors the Union was attempting to orga-
nize its premise representatives , the General Counsel
contends Weatherson's remarks during the above-de-
scribed conversation violated Section 8(a)(1) of the Act.
In Rossmore House, 269 NLRB 1176 (1984), the Board
adopted the view that interrogation of employees is not
illegal per se; that the Act "prohibits employers not only
from activity which in some mariner tends to restrain,
coerce or interfere with employees rights." Here, it is
clear that Nottoli voluntarily discussed the then existing
union situation with both Neal and Weatherson because
he wanted them to know what the situation was. Al-
though Weatherson asked Nottoli if McAbee had been
contacted , he did not pursue the matter when Nottoli
said he would rather not answer . Viewing the limited in-
terrogation conducted by Weatherson in the context de-
scribed , it is clear Weatherson did not seek , nor did his
words contain , any threat to interfere with , restrian, or
coerce Nottoli in the exercise of his Section 7 rights.
Moreover , the record fails to reveal that Nottoli in-
formed other employees of his conversation with Weath-
erson . In the circumstances described , I find Respondent
did not violate Section 8(a)(1) through Weatherson's late
May or early June conduct . See Great Lakers Oriental
Products, 283 NLRB 99 (1987).
2. Neal 's 12 June conversation with McAbee
On 12 June , Regional Manager George Neal and
Weatherson were in Ridgeway, California. Wylie
McAbee was working a canvass in Mt . Vernon, Wash-
ington , at the time . Neal telephoned the employee and,
after identifying himself, stated the CWA had been in
contact with him (McAbee ), or was going to be in con-
tact with him. After McAbee originally denied Neal's as-
sertion, he agreed it was true . Neal then asked if the
Union had been in contact with him, and McAbee an-
swered in the affirmative . Neal then asked when.
McAbee informed him the contact had occurred the pre-
vious evening. Neal then asked who was present at the
meeting and who had signed cards . McAbee replied he
would only speak for himself ; that he did not choose to
involve anyone else. McAbee contends Neal then said: "I
don't understand why you guys think it is necessary to
have a Union , that they would create absolutely nothing
but havoc and problems and that there was absolutely no
need for it and that Mast Advertising would never toler-
ate nor allow a Union to come in and represent their em-
ployees." McAbee responded he felt union representation
was their only alternative , and he indicated Neal con-
cluded the conversation by stating it was really a bunch
of crap ; that they would meet at Denny 's in Mt . Vernon
the next day at 8 a .m. and he should tell everyone to be
there.
Neal was not asked to give his version of the de-
scribed telephone conversation when he appeared as a
witness . Although he admitted he probably asked
McAbee in Mt. Vernon who was pushing the Union, he
denied he told him the Union would create havoc, and
he denied he said Mast would never allow the Union.
Noting that a very credible witness (Gary MacDonald),
whose testimony is summarized , infra, attributes similar
threatening remarks to Neal , I credit McAbee's version
of the conversation.
Paragraphs 5(a), (b), (c), and (f) of the complaint
allege that Respondent , through Neal 's 12 June com-
ments to McAbee , engaged in unlawful interrogation, un-
lawfully threatened to discharge an employee because of
union activities , informed an employee that it would be
futile for employees to select the Union as their bargain-
ing representative , and created the impression that em-
ployees ' union activities were under surveillance by Re-
spondent . The General Counsel concedes the record
does not support the threat of discharge , and he requests
permission to withdraw the allegation set forth at para-
graph 5(b) of the complaint (Br. 26-27). That request is
granted . It is clear, and I find, that by interrogating
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McAbee concerning his union activities and those of his
fellow employees, and by predicting that unionization
would create only havoc and Respondent would never
permit it, Respondent engaged in unlawful interrogation
and unlawfully sought to convince an employee that the
employees ' selection of the Union as their bargaining
agent would be an exercise in futility . Similarly, as the
supervisor told McAbee the Union would or had con-
tacted him, Respondent, through Neal's comment, sought
to create the impression that employees' union activities
were under surveillance. I find that Respondent violated
Section 8(a)(1) of the Act, as alleged, by engaging in
such conduct.
3. Neal's 12 June conversation with Gary
MacDonald
As noted, supra, Neal and Weatherson were in Ridge-
crest, California, on 12 June. After they conducted a
sales meeting with premise representatives assigned to an
ongoing canvass at that location, Neal asked premise rep-
resentative Gary MacDonald to join him for coffee at
McDonald 's restaurant.
MacDonald recalled that Neal commenced their con-
versation by calling him "Mac" indicating he felt they
were friends and he could call him that. He testified
Neal then told him there had been some talk of union
and asked if he had heard anything about it. When Mac-
Donald said, "No," Neal said if he were a representative,
knowing what was happening and going on in the area,
he would be interested in what the Union had to say.
MacDonald indicated Neal's remarks caused him to tell
him he was unhappy with some of the things that were
happening in the Company, and he felt they could
achieve some of the things they wanted if they got cer-
tain things contained in Southwestern Bell's contract
with the Union. According to MacDonald, Neal replied
that everything with the Union would have to be negoti-
ated through Respondent's President Ron Kennedy, and
they would not be able to step right into the Southwest-
ern Bell program because it took them years to acquire
that and there was no way they would be able to have
what they had. MacDonald's response was that if Neal
were a rep going through what they were going
through, why would the Union be such a detriment to
the sales reps? MacDonald testified Neal said, "First of
all, the company would have to play handball." Asked
what he meant, Neal said that, "for example, if there was
a meeting at 8:00 you had better not show up at 8:05 be-
cause your job would be in jeopardy; you would go
where they tell you to go and work the books they told
you to work; there would be little leniency as far as ob-
taining quotas, and, if you fell below the quota standard,
you would be in jeopardy of losing your job or being
terminated." The employee claims he then told Neal the
reason for the Union was they felt it would protect them
from the types of things Neal had described. According
to MacDonald, Neal then said: "Well, basically the
bottom line is, if you went Union, Mast Advertising
couldn't afford it and they would have to close their
doors." MacDonald claims the meeting ended with Neal
requesting that he keep him abreast of anything that
might happen, and asking him to please let him know if
he heard anything about a union.
Although Neal admitted he talked to MacDonald
about the Union in an attempt to gain some information,
he did not attempt to reconstruct the above-described
conversation. Instead, he simply denied he said Mast
could not afford the Union or that if it came in Mast
would close its doors or play hardball. He also denied he
stated Mast could not afford to pay union scale. Mac-
Donald was not working for Respondent at the time of
the hearing and I was most favorably impressed by his
demeanor when he was giving testimony. I credit his
above-described testimony.
The complaint alleges that Respondent, through Neal's
above-described conduct: engaged in unlawful interroga-
tion (par. 5(a)); threatened closing if employees selected
the Union as their bargaining agent (par. 5(d)); threat-
ened more onerous working conditions if employees se-
lected the Union as their bargaining agent (par. 5(g));
and instructed an employee to report on other employ-
ees' union activities to Respondent (par. 5(h)).
When Neal asked MacDonald what he knew about the
Union on 12 June, he did not tell the employee there was
a valid purpose for his inquiry, and he did not assure him
he could answer or refuse to answer without reprisal.
Indeed, Neal admitted he interrogated the employee be-
cause there had been rumors, and his object was to learn
what he could about the union situation. Noting Neal
predicted dire consequences if the employees selected
the Union as their bargaining agent during the conversa-
tion, I find the interrogation constituted an attempt to
deter MacDonald from exercising his Section 7 rights.
Accordingly, I find the interrogation violated Section
8(a)(1) of the Act as alleged.
Having credited fully MacDonald's version of the con-
versation, it is obvious, and I find, that Neal predicted
Respondent would be unable to afford the Union and, if
employees selected it as their bargaining agent, Respond-
ent would close its doors. In NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969), the Supreme Court distin-
guished employer protected speech under Section 8(c)
from unprotected speech under Section 8(a)(1) stating:
[A]n employer is free to communicate to his em-
ployees any of his general views about unionism or
any of his specific views about a particular union,
so long as the communication do not contain a
"threat of reprisal or force or promise of benefit."
He may even make a prediction as to the preceise
effect[s] he believes unionization will have on his
company. In such case, however, the prediction
must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstra-
bly probable consequence beyond his control . . . .
Patently, Neal's prediction was not supported by objec-
tive facts. Through his prediction, I find Respondent vio-
lated Section 8(a)(1) as alleged.
Having credited MacDonald's claim that Neal threat-
ened that Respondent would play "hardball" if the em-
ployees selected the Union by punishing employees who
did not appear to meetings at the time they were sched-
MAST ADVERTISING
uled to be held, assigning work without regard to em-
ployee preference, and strictly enforcing; quotas, it is
clear, and I find, that Respondent, through Neal's com-
ments, threatened employees with more onerous working
conditions if they selected the Union as their bargaining
agent . Such conduct violates Section 8(a)(1) of the Act
as alleged.
Finally, by asking, at the end of the conversation, that
MacDonald kept him abreast of the situation and let him
know if he heard anything about a union, Neal clearly
requested that MacDonald keep him informed of any
union activity he and his fellow employees might engage
in subsequent to their conversation. Through such con-
duct, Respondent violated Section 8(a)(1) of the Act as
alleged.
4. Neal's 13 June conduct
On 13 June, Neal held a sales meeting with premise
representatives Pape, Russell , Shorr, and McAbee at
Denny's Restaurant in Mt. Vernon. After covering some
business, Neal stated he understood they had been con-
tacted by the Union. McAbee agreed they had. McAbee
testified Neal then told them the Union would create
more problems than it was worth; that they did not need
it as management and the employees could work out
their problems without a third parity; and that CWA was
not a good union. At the end of the meeting, Neal asked
McAbee where Jim Williams was. When McAbee failed
to respond, Neal commented McAbee was unwilling to
tell him anything. In addition to corroborating McAbee
generally, Shorr claimed Neal told them during the dis-
cussion that Mast had the best pay plan of any other
yellow page company; that he did not think the Compa-
ny could afford to pay union scale; and that the Compa-
ny could go out of business and they could all be out of
a job if the Union came in.
Shortly before lunch on 13 June, Neal visited Shorr in
the latter's room. Neal asked the employee several times
if he had signed a union card, and Shorr eventually ad-
mitted he had signed one. Neal then asked who else had
signed cards, and Shorr told him he did not know. Shorr
claims Neal then repeated what he had said at the earlier
sales meeting , i.e., he could not figure out why they
needed a third party to negotiate their problems; the pay
plan was excellent; the Union was going to cause noth-
ing by problems; and he thought the Company could not
afford to have a union and there was a chance they
would all be out of work.
Neal was not asked to give his version of either the
sales meeting or his subsequent private conversation with
Shorr. As was the case with the MacDonald incident, he
admitted he was attempting to gam information which
would reveal who was involved with the Union on 13
June. Although he denied he indicated what he thought
would happen if the employees selected the Union on 13
June, I note the threat attributed to him by Shorr is the
same threat he voiced in his conversation with employee
MacDonald, i.e., that Respondent could riot afford the
Union and they would go out of business if the employ-
959
ees selected it as their bargaining agent .4 I credit the em-
ployees.
The complaint alleges that Respondent, through Neal's
13 June conduct: engaged in unlawful interrogation (par.
5(a)); threatened to discharge employees for engaging in
union activities (par. 5(b)); and threatened closure if em-
ployees selected the Union as their bargaining agent (par.
5(d)).
Neal did not purport during his testimony to indicate
he had a legitimate reason for asking Shorr whether he
and other employees had signed union cards. It is clear,
and I find, that through Neal's interrogation of Shorr on
13 June, Respondent violated Section 8(a)(1) of the Act
as alleged.
Although the complaint alleges that Neal threatened
employees with discharge by predicting that Respondent
would close its business and employees would lose their
jobs if they selected the Union as their bargaining agent,
it would appear the threat to discharge allegation is sur-
plusage in the situation presented. I find that by threaten-
ing closure if employees selected the Union as their bar-
gaining agent , Respondent violated Section 8(a)(1) as al-
leged.
5. The alleged attempt to solicit grievance with
implicit promise of remedy
In late June, Respondent's premise representatives re-
ceived a memo dated 27 June which was prepared by
Barbara Simon, Respondent's director of human re-
sources. The memo, which was placed in the record as
General Counsel's Exhibit 2, encouraged premise repre-
sentatives to voice their "thoughts, feelings , suggestions,
and employee relation issues" to Respondent manage-
ment . It concluded:
We urge you to freely discuss your suggestions or
issues with a member of our sales management team
or Human Resources. Only by good two way com-
munication can we resolve any problem.
Responding to the memo, alleged discriminatees McAbee
and Shorr, and employee MacDonald contacted Simon
at Respondent's corporate office.
McAbee testified Simon informed him at the outset of
their conversation she was aware they were in a union
organizing campaign and she did not see why they felt
there was a need for a union because she felt the prob-
lems were not unsurmountable and management and the
employees could work them out. When Simon then
asked McAbee how he felt about that, he replied he felt
CWA was their only alternative because management
did not seem to be remotely concerned about the sales
reps out in the field. Particularizing, he told Simon he
felt their primary problem in the western region was that
their regional manager, Neal, was incompetent, a liar,
and an idiot. After McAbee indicated others felt as he
did, Simon requested that he urge other employees to
call her. She concluded the conversation by indicating if
4 Although Shorr claims the threat was voiced during the sales meet-
ing and again in their private conversation, I conclude the likelihood is
that the threat was uttered during the private conversation only
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other employees would call her she would put all the in-
formation together, take it to someone else, and possibly
try to set up a meeting at a later date.
After talking to Simon, McAbee contacted representa-
tives Gary MacDonald, Joel Shorr, Frank Nottoli, Bob
Phillips, Larry Gibson, Larry Kistenmacher, and an un-
named woman in the eastern region and urged them to
call Simon.
MacDonald testified that when he called Simon in
early July he complained about excessive travel, exten-
sions on markets, unobtainable quotas and bonuses, the
way Neal was running the western region, and his re-
ceipt of a negative commission check. After MacDonald
indicated he felt the corporate offices were off limits to
sales reps , Simon told him she had made notes and
would discuss the matters raised with Kennedy. She
promised to look into the problems, including the nega-
tive commission check.
Shorr called Simon around 1 July after McAbee sug-
gested he do so. He recalled he told her there was a lost
of unhappiness with Neal because he frequently lied to
pacify his sales people; that their extensive travel was un-
called for; that he had been forced to return from Jack-
son Hole, Wyoming, for a weekend and go back again
the next week; that commission rates kept going down,
while quotas kept going up; and that he felt the Union
was the answer. Shorr recalled that Simon told him she
was unaware of any problems in the western region and
knew of nobody who was unhappy. He testified the con-
versation ended with Simon stating she had been taking
notes and she would take them to the next step up; that
she was surprised at the number of calls she had re-
ceived.5
On 21 July Respondent met with its premise represent-
atives who were employed in the central area of its west-
ern region at its Victorville, California office. McAbee
and Shorr, who were assigned to the northern area of
the region, attended because they were working nearby.
Attending for management were: Weatherson, Simon,
and Western Region Manager Neal, Central Area Man-
ager Bill Croom , and administrative marketing manager
for the western region, Carol Williamson. All of the
General Counsel's witnesses (McAbee, Nottoli, MacDon-
ald, and Shorr) described to some extent what they re-
called of the meeting. Weatherson and Neal also gave
testimony regarding the meeting. Simon, one of the
major participants, was not called as a witness.
Weatherson indicated during his testimony that the
meeting was held because Simon had received a number
of responses to her late June communication letter and
management felt they should hold a communications
meeting to determine the concerns of the sales people,
and answer any questions or explain any policies they
did not understand.6
The meeting lasted from approximately 8:30 a.m. until
4 p.m. Simon and Weatherson were Respondent's princi-
pal spokesmen. Weatherson opened the meeting and then
" Simon did not testify at the hearing
6 The record reveals Respondent did not regularly send "communica-
tion" memos to premise representatives , and the meeting in question was
the first so-called communications meeting held with such employees
turned it over to Simon. She indicated, at the outset, that
management was aware of the ongoing union campaign,
and she commented they were aware the law prohibited
them from making any promises during the meeting.
MacDonald testified, without contradiction, that Simon
stated unions were a thing of the past and could not give
them the support they thought it could. He further as-
serted she told them what was needed was open commu-
nication to let them try to handle matters within the
Company so they did not need a union. It appears Simon
read some of the complaints the representatives had
voiced during their telephone conversation with her, and
thereafter urged the employees to air any additional
complaints they had. She informed them there would be
no repercussions as a result of their participation in the
meeting . Thereafter, Weatherson fielded most of the mat-
ters raised by the representatives. Subjects raised includ-
ed the mileage allowance (10 cents vs. 22 cents), dissatis-
faction with Respondent's pay plan, the bad debt policy,
extensive travel, scheduling, and dissatisfaction with Re-
gional Manager Neal. At some point, the contractual
benefits enjoyed by Southwestern Bell's premise sales-
men pursuant to their union contract were contrasted
with the benefits received by Respondent's employees by
placing both on a blackboard. Weatherson indicated Re-
spondent could not afford the package enjoyed by
Southwestern Bell employees, specifically indicating it
could not afford to pay 22 cents a mile, and it could not
afford to pay the same per diem. He defended Respond-
ent's pay plan, stating an outside source had concluded it
was the best pay plan available for their type of oper-
ation. With respect to pay and benefits, he observed Re-
spondent, unlike Southwestern Bell, had to pay retention
moneys approximating 50 percent of their revenue to the
independent companies in order to get their directory
business. He then used the pie illustration to make the
point that only a given amount of revenue remained, and
although the amount could be divided in different ways,
only so much money was available.
Shorr and McAbee both testified that Weatherson
stated during the meeting that Respondent could go out
of business and they would be out of jobs. The context
in which the alleged threat was uttered was not given
and the General Counsel witnesses MacDonald and Not-
toli did not corroborate Shorr and McAbee. Weatherson
specifically denied any such threat was uttered, the com-
plaint contains no allegation that a threat of closure was
uttered at the meeting, and the General Counsel did not
mention the alleged threat in his brief I conclude Shorr
and McAbee were merely stating a conclusion they
reached rather than a specific comment made by Weath-
erson during the meeting.
MacDonald recalled that he requested near the end of
the meeting that Respondent's pay plan be compared
with those of other companies in the same business.
Weatherson admitted he promised to get back to the rep-
resentatives in 6 weeks or 2 months to compare their pay
plan with other plans. He failed to keep the promise, and
no further meetings were held with salesmen employed
in the central area of the western region. Weatherson
claimed no other promises were made during the meet-
MAST ADVERTISING
ing. McAbee and Shorr objected to extensive travel and
scheduling during the meeting. Their comments concern-
ing such subjects are set forth , infra.
The complaint alleges, and the General Counsel con-
tends, that by issuing the 27 June memo and conducting
the 21 July meeting, Respondent solicited employee
grievances and impliedly promised to remedy them in
violation of Section 8(a)(1) of the Act.
The record clearly reveals that Simon solicited the
premise representatives ' complaints during telephone
calls which preceded the 21 July meeting, and that she
and Weatherson continued to solicit their complaints
during the 21 July meeting . The issue, therefore, is
whether Respondent impliedly promised to remedy com-
plaints which were solicited and received.
Respondent contends (Br. 33) that I should find no
violation because no express promises were made and, in
any event, Simon clearly indicated during the 21 July
meeting that Mast could not promise anything because of
the union activity.
The General Counsel contends Simon made promises
during her phone discussions as she informed employees
she was writing down their complaints and she intended
to discuss them with Respondent's president, Kennedy,
to see what could be done. He observes that Respondent
thereafter chose to seek and convince the employees that
good two-way communication would obviate the need
for a union by causing headquarters personnel to con-
duct an unprecedented meeting with employees in which
additional complaints were suggested and explored.
The Board addressed the issue before me in Reliance
Electric Co., 191 NLRB 44, 46 (1971), where it stated:
Where, as here, an employer, who has not previ-
ously had a practice of soliciting employee griev-
ances or complaints, adopts, such a course when
unions engage in organizational campaigns seeking
to represent employees, we think there is a compel-
ling inference that he is implicitly promising to cor-
rect those inequities he discovers as a result of his
inquiries and likewise urging , on his employees that
the combined program of inquiry and correction
will make the union representation unnecessary.
[Footnote omitted.]
In Reliance Electric, in which the management offi-
cials, who conducted meetings, phrased their replies to
some of the complaints by undertaking to "look into" or
"review" them, the Board concluded such cautious lan-
guage, or even a refusal to commit the employer to spe-
cific corrective action, did not cancel the employees' an-
ticipation of improved conditions if the employees op-
posed the union. Similarly, contrary to Respondent's
contention , the Board has consistently held that an em-
ployer does not rebut the "compelling inference" de-
scribed in Reliance Electric by telling employees that it
can make them no promises.7
° See Windsor Industries, 265 NLRB 10C9, 1016 (1982), K & K Gour-
met Meats, 245 NLRB 1131 (1979), Rexair, Inc, 243 NLRB 876 (1979)
961
Here, in agreement with the General Counsel, I find
that by issuing a "communication" memo to employees
for the first time shortly after the union campaign began;
following that action by soliciting complaints with the
promise that they would be considered by top manage-
ment; and by thereafter causing top management officials
to meet with employees to discuss the complaints, Re-
spondent impliedly sought to convince employees that it
would remedy their complaints through good two-way
communication if they opposed the Union. I find, as al-
leged, that by engaging in the described conduct, Re-
spondent violated Section 8(a)(1) of the Act as alleged.
6. Canvass assignments of McAbee and Shorr, and
the Shorr termination
Although McAbee was hired by Respondent as a
premise representative in July 1984, Joel Shorr was hired
in October 1981 and remained a premise representative
until he was terminated, allegedly for failing to sell suffi-
cient advertising, on 30 September 1986. At the time of
his termination, Shorr was second in seniority among the
representatives assigned to Respondent's western region.
McAbee and Shorr, who lived near each other in north-
ern California, were usually assigned to work the same
directories.
Respondent's premise representatives received a start-
ing salary of $300 per week, plus commission on sales.
The premise representatives are assigned daily sales
quotas when they are directed to work on any given
telephone directory. A representative who meets quota
in most markets will earn $85 per day in commission. In
what are anticipated to be lucrative markets, the quota
set may produce $100 or $110 in commissions per day.
During calendar year 1986, premise salesmen who sold
less than 75 percent of quota of sales for 3 consecutive
months were normally issued warning letters (less than
75 percent but more than 60 percent), or letters which
placed them on probation (less than 60 percent of quota).
On receipt of such letter, they were normally given 60
days to elevate their sales to a minimum of 75 percent of
quota. Failure to improve subjected them to discharge.
The record contains considerable testimony which
identified good directories and poor directories. The can-
vasses which are deemed to be good are those on which
the assigned premise representatives can expect to meet
their sales quotas and enjoy good commissions earnings.
Those which are deemed to be poor canvasses are those
which are conducted in economically distressed areas,
predominately agricultural areas, small towns, or "land-
locked" areas, i.e., situations in which all sales must be
made to entities in the local telephone directory area.
Premise respresentatives assigned to work the poor can-
vasses normally experience difficulty in meeting their re-
quired 75 percent of quota, and they normally fail to
earn significant commissions during such assignments.
Carol Williamson, the administrative marketing manag-
er for Respondent's western region, prepares schedules
which determine the directory assignments of premise
representatives working in the western region. While she
documents the assignments, the record reveals Respond-
ent's area managers make recommendations to the re-
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gional manager, and the regional manager then tells the
administrative marketing manager who should be as-
signed to given canvasses. Respondent's corporate staff
do not normally become involved in scheduling premise
representatives to specific canvasses.
Schedules prepared by Williamson on 23 April, 5 June,
19 September, and 7 November were placed in the
record and Respondent Exhibit's 5. They reveal the fol-
lowing assignments:
23 April
McAbee-Skagit 6/9 thru 6/29; Garberville 6/30
thru 7/13; Weaverville 7/14 thru 7/27; Patterson
7/28 thru 8/3; Livingston 8/4 thru 8/31; and Gilroy
9/1 thru 10/27.
Shorr-Skagit 6/9 thru 6/29; Garberville 6/30 thru
7/13; Weaverville 7/14 thrill 7/27; Patterson 7/28
thru 8/3; Livingston 8/11 thru 8/31; and Gilroy 9/1
thru 10/27.
Hadsell was assigned to work with McAbee and Shorr
on the Garberville canvass; Hadsell and Williams were
scheduled to work with McAbee and Shorr on the Wea-
verville canvass; Williams was scheduled to work with
them on the Patterson canvass; and Geraici, Hadsell, and
Williams were scheduled to work with them on the Liv-
ingston canvass.
5 June
After working in Garberville until 7/20, Hadsell and
McAbee were scheduled to work in Dayton, Oregon,
the week of 7/21; they were then to work in Weaver-
ville with Shorr and Williams; Williams was scheduled
to work in Gilroy starting 8/4; McAbee and Shorr were
scheduled to work in Gilroy commencing 8/11; and
Hadsell was scheduled to work in Gilroy starting 8/18;
and the 10 premise representatives assigned to the central
area of the western division were scheduled to work the
Livingston-Patterson canvasses during the period from
8/4 thru 8/17. The centeral area crew was scheduled to
work canvasses other than the Gilroy canvass subsequent
to 8/17.
5 August
After Hadsell quit, Shorr was assigned to work the
Dayton, Oregon canvass with McAbee during the week
of 7/28; McAbee, Shorr, Geraici, and Williams were
scheduled to work in Weaverville from 8/4 thru 8/17;
McAbee and Shorr were scheduled to work in Patterson
from 8/18 thru 8/31 and in Livingston from 9/1 thru
10/19; and McAbee and Shorr were assigned to work in
Sanger from 10/20 thru 11/2. The central crew of the
western region together with Geraici and Philbrick were
assigned to work the Gilroy directories.
19 September
No significant change.
7 November
McAbee's assigned time on the Sanger Canvass was
extended 2 weeks.
The complaint alleges McAbee and Shorr were as-
signed to work the Dayton, Oregon, and Livingston-Pat-
terson directories because they were known union advo-
cates, and that McAbee was given the Sanger assignment
for the same discriminatory reason.
a. The Dayton canvass
Carol Williamson credibly testified Respondent origi-
nally intended to hire two new premise salesmen who
were to be assigned to handle the Dayton, Oregon can-
vass. When no new representatives were hired, the can-
vass was assigned to Hadsell and McAbee on 5 June.
Thereafter, Hadsell quit, and McAbee's regular partner,
Shorr, was assigned to work the 1-week canvass with
McAbee. While McAbee and Shorr protested the assign-
ment because Dayton is a small directory which caused
them to travel approximately 1000 miles each way, the
record reveals they suffered no losses on the assignment
as Weatherson agreed that losses would be charged to
the office as it was a competitive directory, i.e., yellow
page salesmen who work for a different directory com-
pany were working the area at the same time.
Although the record reveals Weatherson may have
suspected McAbee was involved in union activity prior
to 5 June, the date McAbee and Shorr were assigned the
Dayton account, I note Neal did not interrogate the al-
leged discriminatees until 12 and 13 June. Although he
learned at that time that they had both signed authoriza-
tion cards, I find the record fails to reveal that Respond-
ent had knowledge of their union activities when they
were assigned to the Dayton canvass. Moreover, noting
that McAbee was originally assigned to work the can-
vass with Hadsell, and Shorr was not scheduled to work
it with him until Hadsell quit, it appears Respondent had
a legitimate reason for assigning Shorr, McAbee' s normal
partner, to work the canvass . Finally, the fact that
Weatherson agreed to give them competitive directory
relief on the canvass mitigates against a finding of assign-
ment for discriminatory reasons . In the circumstances de-
scribed,ll find the General Counsel has failed to prove
that McAbee and Shorr were assigned to work the
Dayton canvass for discriminatory reasons.
b. The Livingston-Patterson canvasses
Livingston and Patterson are small agricultural towns
located in northern California. The former has a popula-
tion of about 1000 and the latter approximately 5000.
The Evans Telephone Company, an independent, serves
both areas.
In 1985, the entire crew ( 10 salesmen) from the central
area of the western region was assigned to work the di-
rectory because it was a contract year.8 The record re-
veals the central area crew was under the impression
that it would not be required to follow itself by working
8 Respondent's previous contract to publish the directory for a 5-year
period was renewed
MAST ADVERTISING
the directory again in 1986. As indicated by the General
Counsel witness Nottoli, in order to make a good show-
ing in a contract year, a crew which thinks it would not
have to follow itself will engage in sales tactics which it
might not utilize if it knows it will be required to work
the area the following year. The record reveals it was
general knowledge throughout Respondent's western
region that the sales tactices utilized by the central area
crew during the 1985 Livingston-Patterson canvass
would make it a difficult directory to work in 1986.
When the 23 April schedule indicated McAbee, Shorr,
and Williams were scheduled to work the Patterson di-
rectory in 1986, and McAbee, Shorr, Geraici, Hadsell,
and Williams were scheduled to -work in the Livingston
canvass that year, Regional Manager Neal changed the
assignments through the 5 June schedule and indicated
the 10-man central area crew would work those can-
vasses again in 1986.
As noted, supra, Neal ascertained by interrogating
McAbee and Shorr on 12 and 13 June that they were
union advocates who had signed cards. Thereafter,
during the 21 July Victorville meeting , both employees
expressed dissatisfaction with the manner in which Neal
was running the western region. McAbee, in particular,
criticized Neal's scheduling ability by observing that in
1985 the central area crew traveled 5 hours to arrive at
the Livingston-Patterson area, while he and Shorr, who
both lived only 10-20 miles away, were dispatched' to
distant points. McAbee also observed that premise repre-
sentatives deserved some assignments near their homes to
permit them to enjoy family life. At some point during
the 21 July meeting, Neal indicated the central area crew
had been assigned to Livingston-Patterson canvasses for
1986 and it was too late to change assignments . McAbee
testified, without contradiction, that he told Central Area
Manager Croom immediately after the 21 July meeting
he was glad the central area crew had Livingston-Patter-
son that year, and he was hopefull that Neal would not
change the assignment and send him and Shorr there.
Croom informed McAbee such reassignment was unlike-
ly.
By letter dated 25 July, Shorr was placed on probation
because his sales achievement of 51.54 percent of quota
fell short of Respondent's requirement that premise sales-
men maintain 75 percent of quota. The letter indicated
that his performance would be monitored for 60 days,
and, if he was not selling at the rate of 75 percent of
quota for the last 30 days of that period, he might be ter-
minated.
As noted, supra, on 5 August, although McAbee and
Shorr were in Dayton, Oregon, they were assigned to
work the Livingston-Patterson canvasses from 8/18 thru
10/19-a 10-week period. Although they had originally
been assigned to work the canvasses together with three
other sales representatives, the 5 August schedule placed
them on the canvasses alone. Although corporate person-
nel do not normally get involved in scheduling, Weather-
son admitted during his testimony that he suggested to
Neal after the 21 July meeting that McAbee and Shorr
963
be reassigned to the Livingston-Patterson canvasses.9
Both Weatherson and Neal claim McAbee and Shorr
were reassigned to the Livingston-Patterson canvasses
because they had requested they be given those can-
vasses during the 21 meeting. Significantly, Nottoli testi-
fied McAbee and Shorr made no such request at the
meeting under discussion. Expanding, he indicated they
would have been out of their minds to make such a re-
quest because the 10 central area premise representatives
had work the canvasses during a contract year in 1985,
and they had been informed they would not follow
themselves. 110
As indicated, supra, McAbee and Shorr were, prior to
their assignment to the Livingston-Patterson canvasses,
scheduled to work the Gilroy, California canvass com-
mencing 4 August. Shorr testified that he had been
placed on probation after working the Livingston-Patter-
son canvass on a prior occasion, but he had been able to
get off probation by working a major canvass. It is un-
contested that Gilroy is a major canvass, and the premise
representatives working that canvass consider it to be a
good canvass which permits them to make money.
When McAbee learned he and Shorr were assigned to
the Livingston-Patterson canvasses, he contacted Weath-
erson to object. Weatherson informed him he had been
given the assignment because he requested it at the 21
July meeting. McAbee denied the assertion and asked if
the canvass could be reassigned. Weatherson told him
no.
Neal testified he learned on 14 August that there was a
complaint concerning one of Shorr's accounts, and that
caused him to telephone Shorr's home after he was
unable to reach him at the motel he was supposed to be
staying at in Weaverville, California. Neal claims Shorr
answered the phone and immediately broke the connec-
tion. Neal claims he then called McAbee's home and
asked to speak with McAbee. He indicated Mrs. McAbee
asked him to wait a minute after he had identified him-
self, and that she returned to the phone to say McAbee
was not there. When Neal told her they both knew he
was, he claims Mrs. McAbee stated she did not know
what to say. Respondent's Exhibit 7, Neal's phone bill,
reveals he was charged for calls to the Shorr and
McAbee residences on 14 August. McAbee and Shorr
testified they went from Weaverville to Redding, Cali-
fornia, on 14 August and spent the night in a motel
there. They furnished a motel receipt to Respondent in-
dicating they checked in the Redding motel on 14
August. Redding is approximately 300 miles from Mo-
desto and Turlock, the cities in which McAbee and
Shorr live. When cross-examined, Shorr and McAbee
could not recall whether they drove from Weaverville to
Redding at the same time, or whether they dined togeth-
er that night. Significantly, Shorr indicated he lives alone
9 Neal testified it was his decision and he merely told Weatherson
what he intended to do
11 Although McAbee, and perhaps Shorr as well , criticized Neal's
scheduling by citing the assignment of the Livingston-Patterson assign-
ments to the central area crew in 1985, I accord little weight to weather-
son's and Neal's claims that they understood those employees were pro-
testing the fact that the central area crew had been assigned to follow
itself in Livingston-Patterson in 1986
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with only a cat. He failed to explain how anyone other
than himself could have answered his phone when Neal
called . Although I have previously credited the named
employees where their testimony and that given by Neal
conflicts, I credit Neal 's testimony regarding the above-
described situation.
On the morning of 15 August , McAbee called Neal to
complain that the supervisor had called his wife a liar
the night before . After he indicated he and Shorr had, in
fact, been in Redding , Neal told him he knew he was
lying but could not prove it. McAbee claims Neal told
him he was going to fire him and Shorr the first chance
he got.
On 14 August , Shorr discussed his work situation with
Neal. He observed he had lost money working the
Dayton canvass and was looking at Livingston -Patter-
son, a poor market where he could make no money, at
that time . He asked if Neal could give him any help.
Neal told him no. Through cross -examination of Weath-
erson , the General Counsel established that premise rep-
resentative Geraici was placed on probation by letter
dated 3 October , but was able to bring his sales up to
quota by working the Gilroy canvass from 8 September
through 16 November . Similarly, the record reveals
premise representative Jim Williams was issued a proba-
tionary letter on 24 April, and that 45 days after the 60-
days probationary period expired , he was assigned to the
Gilroy canvass with a 60 -day extension during which he
was to pull his figures up to 75 percent of quota. On the
other hand , the General Counsel Exhibit 's 8, a composite
exhibit which reveals discipline imposed by Respondent
on premise representatives during calendar years 1985
and 1986 , reveals a number of representatives were ter-
minated after being placed on probation because they did
not increase their sales to requisite levels.
Shorr was terminated by Neal on 30 September. Neal
informed him the reason for his termination was that he
had failed to attain 75 percent of his quota during his
probationary period.
Although he had been assigned to work the Sanger
canvass for 2 weeks commencing 20 October , McAbee
did not actually work that canvass because he went on
sick leave at the end of the Livingston -Patterson can-
vasses and remained in that status at the time the hearing
was held in this proceeding . McAbee testified Sanger
was a poor area and there was no money to be made
there . McAbee 's claim was corroborated by representa-
tive Gary MacDonald who testified Sanger was one of
the waste markets in Respondent 's western region. He
described it as an agricultural area that was "land-
locked."
The causation test spelled out in Wright Line, 251
NLRB 1083 (1980), is to be used to determine whether
Wylie McAbee and Joel Shorr were unlawfully assigned
to the Livingston-Patterson and Sanger canvasses, and
whether Shorr was terminated for unlawful reasons.
There , the Board stated (at 1089):
First , we shall required that the General Counsel
make prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer 's decision . Once this is es-
tablished , the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
Although , as indicated , supra , I have found the record
evidence does not support an inference that McAbee's
and Shorr 's participation in union activities was a moti-
vating factor in Respondent 's decision to assign them to
the Dayton , Oregon canvass , I reach a different conclu-
sion with respect to its decision to assign them to the
Livingston -Patterson and Sanger canvasses.
To sustain his initial burden , the General Counsel was
obligated to show that McAbee and Shorr engaged in
union activities , and Respondent was aware they had en-
gaged in protected activities . Through Nottoli 's above-
described testimony , through the testimony of the named
employees , and through the admissions made by Neal
and Weatherson , he sustained that burden . Thus, it was
established that McAbee was the employee who "spear-
headed" the organizational drive by making the original
contact with the Union and by seeking thereafter to
cause premise representatives in all three of Respondent's
regions to support it . Weatherson , by asking Nottoli, in
late May or early June , if McAbee had been contacted,
revealed he suspected McAbee was involved in organiz-
ing, and Neal 's 12 and 13 June interrogations of the em-
ployees put any doubt Respondent management may
have had at rest.
Having established that McAbee and Shorr engaged in
protected conduct and that Respondent was aware of
their activities and sentiments , the General Counsel's
next obligation was to adduce evidence which would
permit an inference that their participation in protected
conduct was a "motivating factor" in Respondent 's deci-
sion to assign them to undersirable canvasses. To accom-
plish that task , the General Counsel adduced evidence
which reveals that Respondent exhibited marked antiun-
ion animus by : interrogating its employees and predicting
that their selection of the Union as their bargaining agent
would cause Respondent to go out of business ; soliciting
employee grievances and implying it would act on them
if they rejected union representation; requesting that em-
ployees keep them informed of their union activities and
those of other employees ; and by creating the impression
that the union activities of its employees were under sur-
veillance by Respondent . Additionally , the General
Counsel adduced evidence which reveals that as of 21
July McAbee and Shorr were scheduled to participate
for a lengthy period in the Gilroy canvass , a major can-
vass which promised to be financially rewarding, but
shortly after the meeting they were rescheduled to spend
lengthly periods on what promised to be difficult and fi-
nancially unrewarding canvasses in Livingston-Patterson
and Sanger, California.
By adducing the evidence summarized above, I find
the General Counsel established , prima facie , that McA-
bee's and Shorr's participation in protected activities was
a "motivating factor" in Respondent's decision to reas-
sign them from a canvass that held the promise of
reward to canvasses which promised to be difficult and
financially unrewarding . Noting, the General Counsel es-
tablished Shorr had been placed on probation on 27 July,
MAST ADVERTISING 965
I further find the record warrants an inference that Re-
spondent assigned him to the Livingston -Patterson and
Sanger canvasses to increase the possibility that he
would fail to attain 75 percent of his sales quota within
the 60-day period following 27 July, and thus enable it to
discharge him for failure to achieve his quota.
Respondent defends its decision to implement the
above-described reassignments by contending Weather-
son and Neal were simply reassigning McAbee and
Shorr to the Livingston-Patterson canvasses because they
indicated during the 21 July meeting they wanted to
work those canvasses because they could spend each
night at home . I reject their contentions for a number of
reasons. First , and perhaps foremost , I conclude Weath-
erson and Neal falsely claimed the employees asked that
they be assigned the Livingston-Patterson canvass during
the 21 July meeting . In addition to the fact that McAbee
and Shorr specifically denied they made any such re-
quest during the meeting , I note that the record reveals
that everyone who attended that meeting , including
Weatherson and Neal , were fully aware that the central
area crew had worked the canvasses during a contract
year in 1985 , and that the 1986 canvasses would predict-
ably be difficult and unprofitable . Moreover , McAbee,
Shorr, Neal, and Weatherson were fully aware , at that
time , that the Gilroy canvass , which was to occur only
some 100 miles from McAbee 's and Shorr 's homes,
would undoubtedly be a financially rewarding canvass.
Second, I note that Respondent did more than simply
assign McAbee and Shorr to undesirable canvasses; they
assigned only them to those canvasses thus assuring that
they would experience a lengthy period of low earnings.
Predictably , the assignments would enable them to dis-
charge Shorr , as he was then on probation and had only
60 days to upgrade his performance . In this connection,
the record reveals Weatherson acknowledged during the
21 July meeting that to succeed , a premise representative
necessarily had to be permitted to participate in major
canvasses as well as small canvasses . The record fails to
reveal McAbee and Shorr had enjoyed participation in a
major canvass during the summer of 1986, and Neal and
Weatherson were fully aware of that fact. Finally, al-
though the record reveals the corporate office does not
normally become involved in scheduling and assignment
of premise representatives to specific canvasses , Weath-
erson admittedly participated in the decision to reassign
McAbee and Shorr from a favorable canvass to unfavor-
able ones. In this connection , as noted , supra, Neal
sought to convince me during his testimony that he
made the decision and merely told Weatherson what he
was going to do . The record establishes , however, that
Neal and Weatherson jointly made the decision.
In sum , I reject Respondent 's claim that it was moti-
vated to reassign McAbee and Shorr from the Gilroy
canvass to the Livingston -Patterson canvass because the
employees requested such reassignment . Instead, I find
the employees were assigned to the Livingston -Patterson
and Sanger canvasses because Respondent desired to
punish them for engaging in union activity . Accordingly,
I find Respondent has failed to prove it would have as-
signed the employees to the Livingston -Patterson and
Sanger canvasses even in the absence of their participa-
tion in protected conduct . Noting the reassignments vir-
tually assured that Shorr would fail to attain quota
during his 60-day probationary period , I further find that
his termination , which occurred on 30 September, was
caused by the earlier unlawful conduct of Respondent. I
find , as alleged , that by assigning McAbee and Shorr to
the Livingston-Patterson and Sanger canvasses, and by
terminating Shorr on 30 September , Respondent violated
Section 8(a)(1) and (3) of the Act as alleged.
7. The Larry Kistenmacher termination
Larry Kistenmacher was hired by Respondent on 1
April 1984 . He was a premise representative in the north-
west area of its central region until he was terminated on
11 August 1986 . His immediate supervisor was Gregory
Fischel , and his regional manager was Albert Wells.
In January 1986 , Kistenmacher and premise represent-
ative James Eeten , an area manager at the time of the
hearing , were working on a Rochelle canvass. Another
representative , Doug Beyers, had previously worked
some of the accounts . Eeten credibly testified , when Kis-
tenmacher was asked to work some of the accounts pre-
viously assigned to Beyers , he told Fischel he would not
work them unless they were "on recourse ." 1' Kisten-
macher and Eeten testified , without contradiction, that
Fischel told Kistenmacher to work the accounts and
assign any losses to Doug Beyers' number. Thereafter,
Kistenmacher worked the canvass and when submitting
sales reports , he placed losses on Beyers ' number.
Subsequently , in June , Kistenmacher and Eeten were
working a Princeton canvass. They received a memo
from the local telephone company informing them that
the owner of a new business which was located near Ev-
ansville , Indiana , wanted a listing and advertisement in
the Princeton directory . Eeten telephoned the man and
he drove 50-60 miles to Princeton and met with Kisten-
macher and Eeten in their motel room . They sold him
advertising . When they submitted their sales reports,
each claimed one-half of the sale on their reports.
Around 15 July, Kistenmacher had a telephone con-
versation with Wells. He testified he informed the re-
gional manager there were some deductions on his check
that should not be there . According to Kistenmacher,
Wells told him the deductions were there because he had
improperly assigned some of his losses to Doug Beyers.
Kistenmacher claims he objected , telling Wells he had
simply been following Area Manager Fischel 's instruc-
tions . Kistenmacher testified the matter was settled by
treating as office losses his losses on several accounts sus-
tained during a Hillsdale canvass. 12
11 Premise representatives sustain commission losses if accounts which
were in the prior directory fail to renew their accounts When accounts
are worked on recourse , any losses are absorbed by the office or are
charged against the representative who may have contacted the accounts
and failed to make a sale or renewal
12 Wells, giving hearsay testimony , testified Fischel told him he had
not told Kistenmacher to place Rochelle losses on Beyers' number Fis-
chel was not called as a witness and Eeten , an impressive witness who
had no reason to falsify his testimony , corroborated Kistenmacher I do
not credit Wells' claim
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About 30 July, Kistenmacher, together with Eeten and
others, started on a De Kalb canvass. On 7 August,
Wells called the motel they were staying at and spoke
with Eeten. He indicated to Eeten that he and Kisten-
macher had improperly shared on account-the Evans-
ville man's account written during the Princeton can-
vass-and that, in any event, the commission on that ac-
count was to be taken from them because it belonged to
telemarketing rather than to he and Kistenmacher.13 At
some point, Kistenmacher got on the phone and vehe-
mently protested Wells' decision to deprive him of his
share of the commission.
The same day, a Thursday, Kistenmacher, Eeten, and
representative Joe Muetzel left the De Kalb canvass at
approximately 9:30 p.m. and went to their respective
homes for the weekend. They were not supposed to
leave the canvass until Friday evening. The next morn-
ing Wells called the motel they had been staying in and
learned the three employees had left the canvass. Wells
brought the matter to Weatherson's attention and Wells,
Simon, and Weatherson decided Eeten and Muetzel
should be suspended for a week when they returned to
the canvass Monday, and they had grounds to discharge
Kistenmacher.
On Monday, 11 August, Wells, accompanied by one
Don Sealy, Muetzel's area manager, and Fischel were at
the Georgetown Motel when Kistenmacher, Eeten, and
Muetzel arrived. Eeten and Muetzel were suspended
without pay for 1 week. Kistenmacher was fired. He tes-
tified the reasons given were: (1) he was not there on
Friday; (2) he had put losses on Beyers' account, and; (3)
his figures were down. He claims he protested, saying
taking Friday off was a normal thing, in fact, other guys
did it that Friday; by telling Fischel he knew the Beyers
thing was not true because he told him to do it and he
had two witnesses to prove it; and as far as numbers
were concerned, he thought there was a policy of deal-
ing with percent of quota, and he had never been given
any warning. According to Kistenmacher, his protest
was ignored and Sealy merely told him "that's the way it
is. You're fired; I want your stuff."
Little analysis of the Kistenmacher situation is neces-
sary, as it is clear to me that the General Counsel estal-
bished by overwhelming evidence that Kistenmacher
was discharged in violation of Section 8(a)(1) and (3) of
the Act as alleged. The above related facts reveal he was
the central region employee who instigated the organiza-
tional drive in that region. Although Wells and Weather-
son denied they knew Kistenmacher was engaged in
union activities at the time he was discharged, I note the
instant record clearly reveals that Respondent's corpo-
rate staff and other management officials engaged in con-
siderable interrogation of employees to ascertain who
supported the Union. Significantly, the record reveals
that in mid-July, at a time when Kistenmacher was the
only central region employee who was engaged in union
activites, the central area manager of the western region,
Croom, informed premise representative MacDonald the
13 Although a new owner placed the ad, he retained the old owner's
phone number and the old owner had been sold advertising by a telemar-
keting representative , rather than a premise salesman
union drive was not going anywhere because there were,
at most, two union supporters in the midwest and none
in the east . Croom obtained his information somewhere,
and I infer he obtained it from either Wells or Weather-
son. Considering the Croom statement with the testimo-
ny which reveals Kistenmacher's Area Manager Fischel
had learned Kistenmacher might be made a union stew-
ard, I find that Respondent was aware of Kistenmacher's
union activities and sentiments when it discharged him.
By establishing that Kistenmacher engaged in union
activities; that Respondent was aware of them; by dem-
onstrating Respondent 's antiunion animus (as previously
described); and by showing that Kistenmacher was fired
after leaving a canvass for 1 day, while two representa-
tives who also left for 1 day were merely suspended for
a week, the General Counsel established, prima facie,
that the employee's participation in protected activities
was a "motivating factor" in Respondent's decision to
discharge him.
Having concluded the General Counsel satisfied his
initial evidentiary burden, I turn to Respondent's defense.
In what must be termed a self-serving memo to file,
Wells allegedly set forth on 11 August the alleged rea-
sons for Kistenmacher's termination.14 The first reason
given is that, through June, Kistenmacher was at 60.89
percent of quota for the year, and his performance
during months of February, March, April, May, and
June was below the minimum standard of 75 percent. Al-
though the record is filled with testimony and documen-
tation which reveals Respondent's policy is to issue
warning or probationary letters to employees whose
sales performance might subject them to discipline or
discharge, no warning or probationary letter was ever
sent to Kistenmacher. Significantly, the record reveals he
performed at 109.37 percent of quota in August, immedi-
ately before he was discharged. He indicated he ranked
second among eight representatives on the De Kalb can-
vass at the time he was terminated, and that he was at
64.97 percent of quota for the year at that time. I find
Respondent's claim that the employee was terminated be-
cause his figures were bad to be unconvincing.
The second item set forth in Wells' memo is an indica-
tion that Kistenmacher was terminated because he en-
gaged in forgery and theft by placing commission losses
on Beyers' number. With respect to that matter, I have
credited Kistenmacher and Eeten, and I strongly suspect
Wells was aware when he terminated Kistenmacher that
Fischel had told the employee to place the losses in ques-
tion on Beyers' number. That suspicion is supported by
Kistenmacher's unrefuted testimony which reveals the
matter had been resolved almost a month prior to the
discharge in a manner favorable to the employee. It
would appear Respondent was "reaching" when it as-
signed the Beyers' incident as a reason for the discharge.
The third ground for termination set forth in Wells'
memo is a claim that Kistenmacher violated company
policy by selling to a telemarketing account. The memo
states he was "uncooperative and belligerent" when the
violation of policy was brought to his attention. As indi-
14 See R Exh 15
MAST ADVERTISING
cated, supra, the facts surrounding; the transaction, which
involved the man who had purchased a new business
near Evansville, reveal Kistenmacher and Eeten were
merely attempting to perform their duties as premise rep-
resentatives when they made the sale in question. Signifi-
cantly, the record reveals that neither Kistenmacher nor
Eeten was issued a warning letter with respect to the
transaction . Although the record does reveal Kisten-
macher objected vehemently when he learned he would
not receive the sizeable commission involved, the pretex-
tual nature of the other assigned reasons for the dis-
charge causes me to doubt Wells' claim that Kisten-
macher 's protest regarding the loss of the commission
under discussion was actually a reason for the discharge.
The final reason set forth for the termination in the
memo was Kistenmacher' s absence from the De Kalb
canvass on 8 August. Noting that Eeten and Muetzel
were also absent and that they were merely suspended
without pay for a week , it is clear that the absence,
standing alone , would not have been considered by Re-
spondent to be grounds for discharge.
In sum , the record causes me to conclude that Wells
and Weatherson falsely claimed they were unaware Kis-
tenmacher was actually involved in the union organiza-
tion campaign at the time he was discharged. Noting the
antiunion animus displayed by Respondent during the or-
ganization campaign , I conclude the reasons assigned by
Wells for Larry Kistenmacher's termination are pretexts.
I find Respondent has failed to prove it would have ter-
minated Kistenmacher in the absence of his participation
in protected conduct. I find, as alleged , that, by terminat-
ing the employee on 11 August 1986, Respondent violat-
ed Section 8(a)(1) and (3) of the Act as alleged.
CONCLUSIONS OF LAW
1. Mast Advertising & Publishing, Inc., is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the unlawful conduct described in
section III above, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
4. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action necessary to effectuate the policies of
the Act.
Having found that Respondent assigned Wylie
McAbee and Joel Shorr to the Livingston-Patterson and
Sanger canvasses for discriminatory reasons, and that it
discharged Joel Shorr and Larry Kistenmacher in viola-
tion of Section 8(a)(1) and (3) of the Act, I recommend
that Respondent be ordered to offer Shorr and Kisten-
macher immediate and full reinstatement to their former
967
positions, without prejudice to their seniority or other
rights and privileges. It is further recommended that Re-
spondent be required to make whole Wylie McAbee,
Joel Shorr, and Larry Kistenmacher for any loss of earn-
ings suffered by them by reason of the unlawful discrimi-
nation practiced against them, less interim earnings, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977).1 e
I shall also recommend that Respondent remove from
its records any reference to the unlawful discharges of
Shorr and Kistenmacher, and inform them that such will
not be used as a basis for further personnel actions
against them.
Finally, although the General Counsel requests that a
"visitatorial clause" be included in any order issued in
this case, I note the Board has declined to include such
clauses in cases which do not appear to pose complicated
compliance problems. See, for example, Cherokee Heating
Co., 280 NLRB 399 (1986). In my view, the order in this
case will pose no significant compliance problems, and
provisions set forth in the order which require the Re-
spondent to preserve and make available to the Board
described records necessary to analyze the amount of
backpay will suffice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
The Respondent, Mast Advertising & Publishing, Inc.,
Overland Park, Kansas, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activities and sentiments of other employees.
(b) Threatening to close its business if employees select
the Communication Workers of America, AFL-CIO, or
any other labor organization as their collective-bargain-
ing agent.
(c) Creating the impression that the union activities of
employees are under surveillance.
(d) Informing employees that selection of the Union as
their bargaining agent would be an exercise in futility.
(e) Threatening to play "hardball" and institute more
onerous working conditions if its employees select the
Union as their bargaining agent.
(f) Requesting that employees report their union acti-
vites and those of other employees to management.
(g) Soliciting employee grievances and impliedly
promising to remedy them if they reject union represen-
tation.
is See generally Isis Plumbing Co, 138 NLRB 716 (1962)
16 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 objections to them shall be deemed waived for all pur-
poses
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(h) Assigning Wylie McAbee, Joel Shorr, or other em-
ployees to unsatisfactory canvasses because they join or
support a union.
(i) 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) Offer Joel Shorr and Larry Kistenmacher immedi-
ate and full reinstatement to their former positions, with-
out prejudice to their seniority or other rights and privi-
leges, and make them and Wylie McAbee whole for any
loss of earnings they suffered as a result of the discrimi-
nation practiced against them in the manner set forth in
the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its files any reference to the dis-
charges of Joel Shorr and Larry Kistenmacher, and
notify them in writing that this has been done and that
the unlawful discharges will not be used against them in
any way.
(d) Post at its Victorville, California, and its Overland,
Kansas , facilities copies of the attached notice marked
"Appendix."17 Copies of the notice, on forms provided
by the Regional Director for Region 17, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply.
17 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 Nation-
al 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."
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate employees con-
cerning their union activities and sentiments of other em-
ployees.
WE WILL NOT threaten to close our business if em-
ployees select the Communication Workers of America,
AFL-CIO or any other labor organization as their col-
lective-bargaining agent.
WE WILL NOT create the impression that the union ac-
tivities of employees are under surveillance.
WE WILL NOT inform employees that selection of the
Union as their bargaining agent would be an exercise in
futility.
WE WILL NOT threaten to play "hardball" and institute
more onerous working conditions if our employees select
the Union as their bargaining agent.
WE WILL NOT request that employees report their
union activities and those of other employees to manage-
ment.
WE WILL NOT solicit employee grievances and im-
pliedly promise to remedy them if they reject union rep-
resentation.
WE WILL NOT assign Wylie McAbee, Joel Shorr, or
other employees to unsatisfactory canvasses because they
join or support a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Joel Shoff and Larry Kistenmacher
immediate and full reinstatement to their former posi-
tions, without prejudice to their seniority or other rights
and privileges, and make them and Wylie McAbee
whole for any loss of earnings they suffered as a result of
their discharges.
WE WILL remove from our files any reference to the
discharges of Joel Shorr and Larry Kistenmacher, and
notify them in writing that this has been done and that
the discharges will not be used against them in any way.
MAST ADVERTISING & PUBLISHING, INC.