Sacramento Union

National Labor Relations Board - Board Decisions

Oct 31, 1988

291 N.L.R.B. 540 (N.L.R.B. 1988)

540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sierra Publishing Company d/b/a The Sacramento
Union and Northern California Newspaper
Guild , Local 52, AFL-CIO,CLC Cases 20-
CA-21519 and 20-CA-21601
October 31 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 29 1988 Administrative Law Judge
Timothy D Nelson issued the attached decision
The Respondent filed exceptions and a supporting
brief and the General Counsel filed cross excep
tions and a support 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 I and
conclusions and to adopt the recommended
Order 2 as modified
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent Sierra Publishing Company d/b/a The
Sacramento Union Sacramento California its offs
cers agents successors and assigns shall take the
action set forth in the Order as modified
1 Substitute the following for paragraph 2(a)
(a) Offer Robert Saucerman Ana Sandoval
Georgia Canfield, and Sue Harper immediate and
In its brief to the Board the Respondent notes that the judge failed
to address its argument that the discharges of the four employees were
justified because the employees were not authorized to disclose the infor
mation contained in the October 1 1988 letter that they sent to certain of
the Respondents advertisers The letter does not reveal any specific fig
ures relating to the newspaper but rather states generally that [d]uring
these trying times of bargaining advertising has suffered The news
paper as a whole is speeding downhill
The Respondent argues that regardless of whether the statement ad
vertising has suffered is factually supportable the Respondents internal
reports regarding its advertising lineage are not a matter of public record
and thus the four discharged employees acted in reckless disregard for
the Respondents business interests by publicizing such confidential infor
mation to the Respondents advertisers We find that the information con
tamed in the letter was not confidential and was readily available to the
Respondents advertisers The swings in the Respondents advertising lm
eage are readily apparent to anyone who wishes to peruse the newspaper
on a daily basis and note the amounts of news and advertising Thus we
conclude that the failure of the judge to address this issue does not affect
the outcome of the case
2 The General Counsel excepted to the judge s failure to provide a
make whole remedy for the unlawful unilateral change made by the Re
spondent concerning where the parties would meet for the purpose of
processing grievances We find merit in the General Counsels exception
and amend the remedy and the Order to provide the requested make
whole remedy We also amend the notice and Order to conform to the
Board s traditional language
full reinstatement to their former jobs or if those
jobs no longer exist to substantially equivalent po
sitions without prejudice to their seniority or any
other rights or privileges previously enjoyed and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina
tion against them in the manner set forth in the
remedy section of the decision
2 Substitute the following for paragraph 2(c)
(c) Afford the Guild s agents whether they are
in the Respondents employ the same rights of
access for purposes of the Guild s discharging its
representation function including grievance proc
essing that the Respondent traditionally granted
before October 1 1987 and make the Guild whole
for any expenses it may have incurred as a result of
the Respondents unlawful unilateral changes re
garding where the parties will meet to process
grievances and requiring the Guild to share equally
the cost of such a meeting place
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT suspend discipline or discharge
employees because they engage in concerted activi
ties protected by Section 7 of the Act such as by
seeking the assistance of third parties during a
labor dispute
WE WILL NOT unilaterally change established
conditions and practices regarding access to our
premises by the Guild s representatives whether or
not they are employed by us or regarding griev
ance processing
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Robert Saucerman Ann Sando
val Georgia Canfield and Sue Harper immediate
and full reinstatement to their former jobs or if
those jobs no longer exist to substantially equiva
lent positions without prejudice to their seniority
or any other rights or privileges previously en
joyed and WE WILL make them whole for any loss
of earnings and other benefits resulting from their
291 NLRB No 83
SACRAMENTO UNION
discharge less any net interim earnings plus inter
est
WE WILL remove from our personnel records
any references to our suspensions and discharges of
those four employees and WE WILL notify them
separately in writing that those actions will not be
used by us against them in the future
WE WILL restore the practices and conditions
prevailing before October 1 1987 that affect the
Guild s access to our premises for purposes of dis
charging its function as the representative of our
employees including grievance processing and WE
WILL make the Guild whole for any expenses it
may have incurred as a result of our unlawful uni
lateral changes regarding where the parties will
meet to process grievances and our requiring the
Guild to share equally the cost of such a meeting
place
WE WILL notify the Guild and on request bar
gain collectively in good faith with it before we
make any further changes from those established
practices and procedures
SIERRA PUBLISHING CO D/B/A THE
SACRAMENTO UNION
Christine A Rails Esq for the General Counsel
Mark H Van Brussel Esq (Wilke Fleury Hoffelt Gould
and Birney) of San Francisco California for the Re
spondent
DECISION
STATEMENT OF THE CASE
TIMOTHY D NELSON Administrative Law Judge I
heard this 8(a)(1) (3) and (5) case in trial at Sacramento
California on February 9 1988 It stems from timely
unfair labor practice charges' filed by Northern Califor
nia Newspaper Guild Local 52 AFL-CIO (Guild)
against Sierra Publishing Co d/b/a The Sacramento
Union (Respondent) After Investigating the Regional
Director for Region 20 issued separate formal complaints
and later consolidated them for trial 2
The complaints allege in substance that Respondent
violated Section 8(a)(1) and (3) of the Act when it sus
pended then discharged four named employees-the
four employee members of the Guild s negotiating com
mittee-and violated Section 8(a)(5) when it unilaterally
modified existing policies relating to the processing of
grievances and the Guilds access to Respondents prem
ises
t The original charge in Case 20-CA-21519 was filed on October 16
1987 and was amended on October 27 1987 The original charge in Case
20-CA-21601 was filed on November 23 1987 and was amended on De
cernber 4 1987
2 The complaint in Case 20-CA-21519 issued on November 16 1987
the complaint in Case 20-CA-21601 issued on December 30 1987 The
Regional Director ordered them consolidated for trial on January 7
1988
541
The legal issue raised by Respondents suspension and
firing of the four Guild committeepersons in one requir
ing an understanding of the Supreme Court s decision in
Jefferson Standard3 and of the Board s own subsequent
decisions applying that case The issue is whether as Re
spondent contends the employees October 1 letter to
Respondents advertisers seeking support during pro
tracted contract negotiations was so disparaging of or
disloyal to Respondent as to remove their conduct
from the protections afforded generally by Section 7 of
the Act to concerted appeals for third party support
during labor disputes I will conclude that the Guild s
employee representatives were acting well within their
rights under Section 7 in their October 1 letter and that
Respondents suspension and discharge of them for dis
tributing that letter violated Section 8(a)(1)
Respondent has not contested facts introduced by the
General Counsel showing that Respondent made unbar
gained for changes in traditional conditions respecting
the Guild s access to the premises and processing of
grievances Respondent has not argued any defense on
brief to the unilateral change features of the complaint
which I will find meritorious
On the whole record my assessments of the witnesses
as they testified my judgments of probabilities and my
review of the legal authorities and arguments which are
well presented in the General Counsels and Respond
ent s posttrial briefs I find and conclude as follows
FINDINGS OF FACT
I BACKGROUND
Respondent publishes a daily newspaper The Sacra
mento Union (The Union) in Sacramento California 4
Its only market competitor is the Sacramento Bee (The
Bee) which enjoys greater circulation thereby making
The Union in a phrase familiar to the parties the
second paper in a two paper town
For more than 40 years the Guild has represented Re
spondent s nonsupervisory employees working in its edi
tonal display advertising classified advertising commer
cial sales circulation business office switchboard and
maintenance departments A labor agreement covering
that unit was due to expire in May 1985 but the Guild
agreed to extend its terms for an additional year because
of Respondents financial difficulties Subsequently al
though the extended agreement contemplated a wage in
crease the Guild with the approval of Respondents bar
gaining unit employees agreed for the same reasons to
forego the increase In March 1986 anticipating the expi
ration of the extended agreement the parties began to
negotiate towards a new contract an effort that still had
not reached fruition when this case was tried nearly 2
years later
9 NLRB v Electrical Workers IBEW Local 1229 (Jefferson Standard)
346 U S 464 (1953) (Justices Frankfurter Black and Douglas in dissent)
4 In the year ending November 30 1987 Respondent derived gross
revenues exceeding $200 000 from publishing The Union and held mem
bership in or subscribed to various interstate news services published
various nationally syndicated feature articles and advertised nationally
sold products
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In August 1986 Respondent implemented a series of
changes in conditions also announcing a continuing
wage freeze This triggered a separate unfair labor prac
tice charge5 by the Guild and a complaint against Re
spondent that was tried before Administrative Law
Judge Burton Litvack in January 1987 On October 21
1987 Judge Litvack issued a decision 6 in which he
found that many of the changes implemented by Re
spondent were privileged as lawful postimpasse imple
mentations of outstanding bargaining proposals but that
other changes were unlawful because they had not been
contemplated within Respondents last offer and there
fore had not been bargained to impasse The General
Counsel took exception to Judge Litvack s decision inso
far as he had concluded that a lawful impasse had been
reached before Respondent implemented the changes in
question the matter is pending before the Board
Although the impasse case was under submission
before Judge Litvack the parties continued to meet at
intervals but in the late summer and early autum of
1987 they were still apart on many issues including
wages
The protracted bargaining employee dissatisfaction
and associated problems facing The Union had become
the subject of an editorial on August 24 in a local weekly
publication the Business Journal which is subscribed to
by many of Respondents advertisers and circulates
within Respondents advertising department 7 Thus in an
editorial captioned Scaife and the Union the Business
Journal had referred to a strike looming by the [Guild]
that represents the heart and guts of the newspaper to
Respondent as a company that is reportedly leaking
money and to [r]umors of the Union s impending
demise The editorial had contrasted The Union s plight
with the success of its rival The Bee opining that the
real cause of the Bees success has been the company s
investment in its editorial product it put top priority
on-and a lot of money in-the gathering and presenta
tion of news Pointing blame at The Union s absentee
owner Richard Mellon Scaife the Business Journal had
wondered whether Scaife is merely trying to bust a
union and if so to what end observing that You
can t attract good j ournalists without good wages The
Union s pay already has fallen notoriously behind the
competition If the Newspaper Guild s spine is broken at
the Union the paper is still left unable at present pay
scales to recruit the kinds of persons it needs to turn for
tunes around The Business Journal expressed the view
that The Union is staffed by a small-and increasingly
thin-staff of dedicated reporters editors and produc
tion people who take their profession seriously and
noted elsewhere that The Union is severely under
staffed and facing a growing number of holes
Respondent did not reply editorially or otherwise to
the Business Journals editorial comment
In late September concluding that negotiations were
stalled the Guild staged a rally in the employee cafete
na distributing black balloons attached to cards which
read MOVE This demonstration was not appreciated
by Respondents management and it did not in any case
produce further movembent at the bargaining table 8
The stage was therefore set for the events that central
ly concern us which I describe next
The stage was therefore set for the events that central
ly concern us which I describe next
II THE OCTOBER 1 LETTER THE DISCHARGES
On October 1 the four employee members of the
Guild s negotiating committee9 jointly composed signed
and distributed a letter to 50 of Respondents advertisers
which is reproduced here
A ONE NEWSPAPER TOWN IT S BAD
FOR YOU
Who wants a one newspaper town The readers
don t The politicians don t As a business person
and advertiser you don t
And we the employees of The Sacramento
Union don t Perhaps only the Bee would like it
For nearly a year and a half we have been trying to
get a fair contract with The Sacramento Union We re
not asking for more money In fact we expect to contin
ue living with a pay cut-but not the 15% to 20% cut
that was imposed on us a year ago
During these trying times of bargaining the
paper s circulation has plummeted good employees
have left for better jobs advertising has suffered
The newspaper as a whole is speeding downhill
We the employees would like to get the news
paper back on track We want to use our energies
and our loyalty to help The Union struggle back
onto its feet Instead we find ourselves fighting the
out of town owner s edicts
Jack Bates the general manager of The Union
says he wants a fair agreement but his words and
his actions don t mesh We urge you to contact Jack
(442-7811 or 440-0401) and express your concern
for the paper s health
If something positive doesn t happen soon we
may all be facing the death of The Sacramento
Union
We think we can turn the paper around but it is
time for you as a member of the community to
lend a hand Talk it over with Jack Bates or with
Bruce Winters the editor of The Union (442-7811)
8 Case 20-CA-20546
6 JI)(SF)-110-87
7 Advertising account salesman Saucerman one of the four Guild com
mitteepersons whose discharge is in question testified without contradic
tion and I find that the Business Journal has been in the Sacramen
to market for two or three years It s achieved an excellent rep
utation among the business people and their circulation is something
like 16 000 Many of the accounts f i e Respondents advertisers]
keep it on their tables mt he waiting room
8 In this case the General Counsel does not attack Respondents course
of conduct at the bargaining table and I will not make further findings
regarding the bargaining history
8 The Guild s employee committee consisted of Robert Saucerman a
retail advertising salesperson who was responsible for many of Respond
ent s major accounts Ana Sandoval a copy editor and food columnist
Georgia Canfield a classified advertising salesperson and Sue Harper
whose job was not made a matter of record
SACRAMENTO UNION 543
Your call can help us save the second newspaper voice
in Sacramento
SACRAMENTO UNION EMPLOYEES NE
GOTIATING COMMITTEE-Bob Saucerman
Ana Sandoval Georgia Canfield Sue Harper
(We d welcome a call too Ask for any of us at
442-7811)
On October 7 after Respondents president and gener
al manager John Bates had been shown a copy of the
letter he caused his industrial relations director to issue a
notice to each of the letter s authors announcing that
each was suspended without pay effective immediately
pending the completion of the Company s investigation
into the distribution of the October 1 letter to our
advertisers
During the next week Bates consulted with counsel
and in counsels presence personally interviewed the of
fending authors to determine the extent each had been
personally involved in composing and distributing the
letter Each signer freely admitted his or her full involve
ment in the joint action
On October 15 Bates wrote to each author stating in
material part
The Sacramento Union has completed its investi
gation of the acts and events surrounding the Octo
ber 1 1987 letter sent to the major advertisers of
The Sacramento Union
You are hereby notified of your discharge from
The Sacramento Union for good and sufficient
cause effective immediately
Your endorsement of and participation in the
drafting reviewing and/or sending of this letter
containing half truths exaggerations and blatant
misrepresentations to our major advertisers was an
act of disloyalty which disparaged the newspaper
and was disruptive of the newspapers relationship
with its advertisers This action which you author
ized threatened not only the financial interests of
The Sacramento Union but also the livelihood of
all Sacramento Union employees
Accordingly The Sacramento Union has no
choice but to terminate your employment
Cordially
/s/ John D Bates
John D Bates President
On October 16 Bates posted a notice to all employees
announcing that the four authors had been discharged
repeating many of the statements contained in the dis
charge letter and averring in addition that The Sacra
mento Union is in better financial shape than it has been
in several years as a result of changes in the paper within
the last few months The Sacramento Union is en
joying modest operating profits for the first time in
recent years Our projections show this trend should
continue through the end of the year That notice also
introduced some additional statements of Respondent s
position not recorded in the discharge letters among
them
It is unfortunate that the bargaining process has
spilled out into the public domain It is our position
that this letter should not have been written and
we should not be facing this current dilema [sic]
The proper place to negotiate a contract is at the
bargaining table This whole unpleasant situation
should not have happened
III THE UNILATERAL CHANGES
There is no dispute that Respondent deviated from es
tablished historical practice in its dealings with the Guild
when without prior notice or bargaining it took the fol
lowing series of actions
The first involved a number of ad hoc attempts by Re
spondent to limit the Guild s hitherto unrestricted access
to Respondents premises and employee work areas As
described below they began after the four committee
members were fired and culminated eventually in the
publication of a formal written notice on December 3
which purported to remind readers of Respondent s
Policy on the matter of Access of non employees to
Employee Areas of the Sacramento Union Thus in
October after the four committee members were fired
Industrial Relations Director James Baysinger asked Sau
cerman one of the dischargees to do him a favor by
having all members of the Guild committee sign in at the
reception desk and obtain permission to visit employee
work areas And on November 5 when Saucerman and
Gerald Rocker the Guild s staff administrative officer
arrived at Respondents premises intending to post no
tices on a bulletin board maintained historically by the
Guild Baysinger physically blocked their entry stating
first that the Guild s shop stewards could post the no
tices Baysinger eventually waved them through howev
er after Rocker asked (or told ) Baysinger to step
aside
Subsequently Saucerman did in fact visit employee
work areas in his capacity as the Guild Committee s
vice chair On December 2 however he received or
was shown a handwritten note retained at the reception
ist s desk in the main lobby which stated (emphasis in
original)
Policy
The 4 are not to go past the lobby We are to call &
have the people come down or if they go to an
office they must be escorted [signed] Louis Hall
And on December 3 Respondent posted this formal
policy statement
Date December 3 1987
To Department Heads Listed
From J M Baysinger
Subject Building Access for Non employees
This is a reminder of the Policy on the matter of
Access of non employees to Employee areas of The
Sacramento Union
The access to The Sacramento Union for all non
employees general public and/or visitors is re
stricted to the lobby of The Sacramento Union
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Access to employee areas of The Sacramento Union
beyond the lobby may be granted by a Department
Head or Department Supervisor when such non
employees have specific business to conduct with an
employee
Procedures to be followed in cases where non
employees seek access to employee areas are as fol
lows
1) After signing in at the lobby desk the non em
ployee will state his or her business with a specif
is employee
2) Lobby desk employees will contact the De
partment Supervisor and inform the Supervisor
of the nature of the request
3) The Department Supervisor may give approv
al for access to that individual
4) Although all non employees should be escort
ed from the lobby to the department by an em
ployee of the department circumstances may be
such that the Department Supervisor might de
termine it is not necessary
5) All non employees must sign out before leav
mg the permises
If any non employee is unwilling to adhere to
this policy and causes problems Larry Best Jerry
Killian or Ben Black should be notified immediately
of the problem
If you have any questions on this matter please
contact this office on extension 442
/s/ J M Baysinger
The second category of unilateral action was manifest
ed in November Thus on November 2 Industrial Rela
tions Director Baysinger wrote to Ana Sandoval one of
the dischargees who in her capacity as the Guild s
Unit Chair had previously submitted a grievance on
behalf of a unit employee and had sought a meeting to
discuss the grievance Baysinger wrote in pertinent part
(emphasis added) as follows
we stand ready to meet at a time and place off
the premises of the Sacramento Union mutually
agreeable to the parties The costs of such a meeting
place to be shared equally by the parties
grievance time lines will be frozen while we review
our legal options
IV ANALYSES SUPPLEMENTAL FINDINGS
A The Discharges
1 Legal setting the holding of Jefferson Standard
Broadcasting the Board s further decisional gloss
The legality of Respondents discharge of the employ
ee members of the Guilds committee must be deter
mined in the light of the Supreme Courts decision in
NLRB v Electrical Workers Local 1229 (Jefferson Stand
ard) 346 US 464 (1953) and the Boards own subse
quent decisions applying that case I will eventually sup
plement my findings with additional facts relevant to the
Jefferson Standard issue but my concluding analysis of
the facts will be shortened if I begin by discussing the
Supreme Court s decision in some detail underscoring at
intervals some of the many characterizational words
phrases and distinctions employed by the Court which
due to their recurrence appear to have had the greatest
influence on the Court s ultimate judgment I shall also
in this section identify some of the Boards own con
structions of and elaborations on Jefferson Standard
which have prima facie applicability to the facts
In Jefferson Standard the parties had negotiated at
length reaching various intermediate impasses Eventual
ly the union s members although not going on strike
began a publicity campaign of carrying picket signs and
distributing handbills which charged the company with
unfairness particularly in its refusal to accept a much
disputed arbitration proposal The Court found this origi
nal campaign unexceptionable noting that it was
peaceful[ly] conducted and that the placards and
handbills named the union as the representative of the
employees in question 10 But on August 24 1949 as
the Court found a new procedure was employed
where Without warning several of its [the company s]
technicians launched a vitriolic attack on the quality of
the company s television broadcasts in handbills of
which 5000 were distributed on the picket line on the
public square two or three blocks from the company s
premises in barber shops restaurants and busses Some
were mailed to local businessmen 11 The handbills in
question read
IS CHARLOTTE A SECOND CLASS CITY?
The Guild s staff agent Rocker telephoned Baysinger
in reply on November 12 then confirmed the telephone
conversation in a letter to Baysinger on November 13
stating
I advised you that your refusal to meet on com
pany premises was a complete change which you
acknowledged I offered to have the meeting at my
office and you again refused I told you paying for
hotel meeting rooms everytime we need to process
grievances was absurd and completely inappropri
ate You again refused at which point I advised
you that until we can resolve the location issue
You might think so from the kind of Television
programs being presented by the Jefferson Standard
Broadcasting Co over WBTV Have you seen one
of their television programs lately? Did you know
that all the programs presented over WBTV are on
film and may be from one day to five years old
There are no local programs presented by WBTV
You cannot receive the local baseball games foot
ball games or other local events because WBTV
does not have the proper equipment to make these
346 U S at 467
Id at 467-468
SACRAMENTO UNION 545
pickups Cities like New York Boston Philadel
phia Washington receive such programs nightly
Why doesn t the Jefferson Standard Broadcasting
Company purchase the needed equipment to bring
you the same type of programs enjoyed by other
leading American cities? Could it be that they con
sider Charlotte a second class community and only
entitled to the pictures now being presented to
them?
WBT TECHNICIANS
The Court noted that the offending handbills made no
reference to the union to a labor controversy or to collective
bargaining and that this attack was curtailed only
when the company discharged the ten workers it be
lieved responsible for sponsoring or distributing the
handbills 12 The Court found the issue simple namely
iwhether these employees were discharged for
cause The Court first observed that They were dis
charged solely because they sponsored or distribut
ed 5 000 handbills making a sharp public disparaging
attack upon the quality of the company s product and its
business policies in a manner reasonably caclulated to
harm the company s reputation and reduce its income 13
Observing that the Board had found that the employees
had not willfully misrepresented any facts underlying
their disparaging report the Court noted with evident
approval the Board s own ratio decided in finding that
the discharges were lawful-that the discharged employ
ees ultimate purpose-to extract a concession from the
employer was undisclosed and that They did not in
dicate that they sought to secure any benefits for them
selves as employees by casting discredit upon their em
ployer 14 Reviewing legislative history and intervening
cases the Court found plain enough the legal princi
pie that insubordination disobedience or disloyalty is
adequate cause for discharge observing that The diffi
culty arises in determining whether in fact the dis
charges were made because of such a separable cause or
because of some other concerted activities engaged in for
the purpose of collective bargaining or mutual aid or
protection which may not be adequate cause for des
charge 15
Approving the Board s own rationale the Court rester
ated those features of the case which underscored the
Board s factual conclusion that the attack on August 24
was not part of an appeal for support in the pending dispute
[but was rather ] a concerted separable attack purporting
to be made in the interest of the public rather than in that
of the employees 16 Thus the Court repeated that the
discharged employees attach related itself to no labor
practice of the company It made no reference to wages
hours or working conditions[ ] The attack asked for no
public sympathy or support 17 Moreover the Court
12 Id at 468
13 Id at 471
14 Id at 472 quoting from 94 NLRB at 1511 where emphasis appears
in the original text
Id at 475 citation omitted
6 Id at 477
17 Id at 476
found that The fortuity of the coexistence of a labor dis
puce affords these technicians no substantial defense
While they were also union men and leaders in the labor
controversy they took pains to separate those categories In
contrast to their claims on the picket line as to the labor
controversy their handbill of August 24 omitted all refer
ence to it The handbill diverted attention from the labor
controversy It attacked public policies of the company
which had no discernible relationship to that controversy
The only connection between the handbill and the labor
controversy was an ultimate and undisclosed purpose or
motive that by the hoped for financial pressure the
attack might extract from the company some future con
cession[ ] In any event the findings of the Board of
fectively separate the attack from the labor controversy and
treat it [i e the handbill] solely as one made by the com
pany s technical experts upon the quality of the company s
product As such it was an adequate a cause for the dis
charge of its sponsors as if the labor controversy had not
been pending The technicians themselves so handled
their attack as thus to bring their discharge under the
[ for cause provisions of] Section 10(c) 18
Finally in obiter dicta whose precise meaning is hard
to discern the Court stated
Even if the attack were to be treated as the
Board has not treated it as a concerted activity
wholly or partly within the scope of those men
tioned in Section 7 the means used by the techni
cians in conducting the attack have deprived the at
tackers of the protection of that section when read
in the light and context of the purpose of the Act 19
In Emarco Inc 284 NLRB 832 (1987) the Board
(Chairman Dotson dissenting) characterized the holding
of Jefferson Standard in the following terms
employees may engage in communications with
third parties in circumstances where the commune
cation is related to an ongoing labor dispute and
when the communication is not so disloyal reckless
or maliciously untrue to lose the Act s protection 20
In that case the company a construction subcontractor
fired two former strikers awaiting recall after the conclu
soon of the strike because of statements they had made to
the company s general contractor relating to the compa
ny s 5 or 6 month delinquency in payments to the
union s health and welfare funds a delinquency which
the two employees told the general contractor had been
the cause of the strike The Board accepted as true the
general contractors testimony that the two employees
had also said to the general contractor these people
never pay their bills the company can t finish the job
and is no damn good that this job is too damn big
for them It will take a couple of years to finish the
job and had referred to the company s president as no
damn good and as a son of a bitch 21
Id at 466-467
Id at 477-478
20 Id at 833
21 Ibid see also 834 at fn 14
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Observing first that the employees remarks were
made in the context of and were expressly linked to the
labor dispute 22 the Board found that those remarks
name calling aside were not malicious falsehoods but
reflected to some extent the Respondents inability to
meet its financial obligations which concern was at the
heart of the employees labor dispute [and that]
these remarks were not in the nature of a personal attack
unrelated to the employees protest of the Respondent s
labor practices 23 Moroever said the Board to the
extent that the Charging Parties remarks reflect bias
or hyperbole in the context of an emotional labor dis
pute clearly identified as such they cannot be said to
be so disloyal reckless or maliciously untrue as to lose
the Act s protection 24
The Board s Richboro decision supra is instructive in
sofar as it suggests criteria which must be examined to
determine whether employees communications with
third parties are protected by Section 7 although they
may contain elements involving arguable disloyalty or
which might arguably tend to undermine their em
ployer s business interests There the Board reversing
the administrative law judge found that employee Palus
zek had engaged in statutorily protected concerted activ
ity-rather than unprotected disloyalty -when he sent
a letter to his employers funding source complaining of
the employers discharge of a fellow employee and stat
mg in addition This matter in my opinion is repre
sentative of a course of events carried out by the
administration of the Richboro program which has signi
feed a decrease in the quantity and quality of service to
clients The Board distinguished employee Paluszek s
letter from a category of protected activity [which]
may be rendered unprotected when the attitude of the
employees is flagrantly disloyal wholly incommensurate
with any grievance which they may have and manifested
by public disparagement of the employer s product or un
dermining of its reputation 25 Thus the Board found
that Paluszek s letter to the funding source contained
nothing to suggest that Paluszek s intent was to
sabotage or undermine Respondents reputation Its tone
was neither malicious nor did it ridicule Respondent 26
Finally the Board held that Paluszek s targeting of Re
spondent s funding sources was not evidence of unpro
tected disloyalty since absent a malicious motive Palus
zek s right to appeal to the public is not dependent on the
sensitivity of Respondent to his choice of forum 27
The right of employees to seek the aid of third parties
in ongoing labor disputes is likewise emphasized in other
recent Board decisions even if as in Richboro supra the
targeted parties are the employers funding source and
even if in seeking that aid the employees make attacks
on their employers product which might predictably
cause customers to lose confidence in the quality of
the employers services
Particularly noteworthy in this regard is Allied Avia
tion Service Co 248 NLRB 229 (1980) in which the air
craft maintenance company fired employee Schwartz
who in aid of pending grievances had written two let
ters to the company s airline customers In one letter
Schwartz stated that the company was creating a safety
hazard of concern to the customers by requiring its em
ployees to bypass a mechanical safety system designed to
prevent fires during the fueling of aircraft and closed
that letter by voicing the hope that you will express
your opinions to management on this subject before a
tragedy does occur In the other Schwartz complained
of the company s alleged failure to observe union con
tract mandated overtime scheduling alleging as well
that there are no standard operating procedures or
training programs for this site or its equipment Claim
ing further that the company was performing the ma
jority of its maintenance through outside contractors
Schwartz suggested that the company s employees only
purpose is to act as a scapegoat should a tragedy occur)
The letter closed with the statement that the employees
could not in good conscience continue to cover this fa
cility and with the suggestion that the customer s
opinion expressed to management would help
The administrative law judge had found Schwartz let
ters unprotected As the Board characterized his reason
ing the judge had made much of the fact that the
safety aspects of the labor disputes had not been raised
with the company through established channels and
therefore that Schwartz letters did not bear a sufficient
good faith relationship to the ongoing labor disputes to
be afforded the protections of the Act 28 Disagreeing
on this relationship point the Board stated first we
cannot say that the safety aspects were not part of
or were unrelated to the disputes Moreover the Board
faulted the judge for appearing to question the efficacy
of the tactics utilized by Schwartz rather than seeking to
evaluate the relationship between the letters and the on
going disputes emphasizing
2 2 In this regard the Board had also found that the company s trust
fund delinquencies had been a chronic problem that employees had
been required repeatedly to assert their rights to have the fund pay
ments made that the delinquency which led up to the strike was
merely the latest and apparently most severe in a series of delinquencies
[and that] the payment which ended the strike could not have pro
vided the employees with much assurance that their problem in getting
the Respondent to live up to its financial obligations under the contract
were at an end Id at 833-834
22 Id at 834 citing Richboro Community Mental Health Hospital 242
NLRB 1267 ( 1979) whose holding is discussed further below
24 Id at 834 citing Richboro supra and NLRB Y Owners Maintenance
Corp 581 F 2d 44 49-50 (2d Cir 1978)
25 242 NLRB at 1267-1268 (citations omitted emphasis added)
26 Id at 1268 (citations omitted emphasis added)
27 [bid citing St Joseph s High School 236 NLRB 1623 (1978) (empha
sis added)
it is not the Boards function to appraise the
potential effectiveness of the tactics utilized by em
ployees in their disputes with management
Thus if the communication is related to the dispute
the employee sending the communication is equally
protected whether such a step is taken early on in
the dispute or at a later date after all internal ave
nues have been exhausted 29
The judge had also concluded that Schwartz letters
amounted to unprotected disparagement of the compa
28 248 NLRB at 229-230
29 Id at 231
SACRAMENTO UNION
ny s service treating them as amounting to an accusa
tion that the Respondent performs its services in a haz
ardous manner at an airport Addressing the latter issue
the Board stated
In determining whether an employees communi
cation to a third party constitutes disparagement of
the employer or its product great care must be
taken to distinguish between disparagement and the
airing of what may be highly sensitive issues There is
no question that Respondent here would be sensi
tive to its employees raising safety matters with its
airline customers Yet we have previously held
that absent a malicious motive [an employee s]
right to appeal to the public is not dependent on the
sensitivity of Respondent to his choice of forum
[Citing Richboro supra ] In addition the
[judge s] analysis would effectively serve to pre
elude employees from protesting safety matters
through requests for assistance from third parties
because safety particularly in the airline indus
try is by its very nature a potentially volatile issue
Thus although Schwartz statements regarding
safety raised delicate issues which Respondent would
understandably prefer to keep out of the public eye
we find nothing in the letters which rises to the
level of public disparagement necessary to deprive
otherwise protected activities of the protections of
the Act 30
And in Cordura Publications 280 NLRB 230 (1986)
the Board (Chairman Dotson dissenting) found that em
ployees were protected by Section 7 in writing to their
employers parent company for assistance on a labor re
lated matter even though in their letter the employees
had claimed that the employers labor practices had re
sulted in limited inaccurate research which im
periled the credibility and future of the product In re
versing the administrative law judge who had found
inter alia that the letter was a complaint against the in
tegrity of the Respondents product and the competency
and good faith of local management the Board found
nothing in the language of the letter which was suffi
ciently opprobrious defamatory or malicious to
remove the employees from the protection of the
Act 31 Moreover said the Board we reject the Re
spondent s contention that the letter is unprotected
as it contains statements which are false as there is no
evidence that if false they are deliberately or maliciously
false and it is well settled that the falsity of a communica
tion does not necessarily deprive it of its protected charac
ter 32
2 The laws application to these facts Respondent s
contentions analyzed
Respondent would have the Board find that the Guild
committees October 1 letter constituted public dispar
agement of Respondents newspaper involving a form
30 Id at 231 (emphasis added)
31 Id at 231-232 citing Allied Aviation supra (emphasis added )
32 Ibid citing Veeder Root Co 237 NLRB 1175 1177 (1978) Patterson
Sargent Co 115 NLRB 1627 1629 (1956) (emphasis added)
547
of disloyalty which the Supreme Court condemned in
Jefferson Standard as beyond the protections of Section 7
of the Act For the reasons discussed below I cannot
agree and would therefore find that Respondents dis
charge of the four Guild representatives violated Section
8(a)(1)
Under the foregoing cases the Guild committeepersons
who authored the October 1 letter were acting under the
protections of Section 7 of the Act in seeking the sup
port of third parties in their ongoing labor dispute with
Respondent Thus any of Respondents arguments which
depend on the proposition that the employees had no
right to seek the help of outsiders must be rejected out
of hand 33
In Bates open letter to employees he characterized the
discharged employees actions as being disruptive of the
newspapers relationship with its advertisers and as one
which threatened the financial interests of The Sacra
mento Union But to the extent Respondent was moved
to discharge the four Guild spokespersons because they
chose to target Respondents advertisers with their
appeal for support rather than some other third party or
parties Respondent will find no comfort in the cases
Thus Respondent s sensitivity to their choice of
forum will not convert their otherwise protected third
party appeal into an unprotected one Rtchboro supra
Allied Aviation supra
Moreover if the effects of the letter are at all a
factor properly to be considered the evidence of actual
disruption is marginal at best and does not necessarily
trace from the October 1 letter as opposed to the edito
rial in the Business Journal or some other source Re
spondent called salesperson Bob Badgely who testified
that several businessmen asked him various questions
about the rumor that The Union was going out of busi
ness or in trouble or things to that effect and that the
main concern of one of them was why isn t my regu
lar salesman telling me these things [about] circula
tion plummeting Badgely states he gave a basic re
sponse to each questioner in substance that circula
tion after a period of being a little bit soft was finally
coming back And that good people were staying and
good people were being hired as well 34 Respondent
33 Respondent has not been explicit in identifying what it was about
the October 1 letter which rendered it unprotected One recurring theme
however appears to be that it was inherently disloyal for the Guild
spokespersons to have taken the labor dispute outside This theme is
perhaps most explicit in Bates October 16 open letter to The Unions em
ployees where he states It is unfortunate that the bargaining process
has spilled out into the public domain It is our position that this letter
should never have been written The proper place to negotiate a
contract is at the bargaining table Respondent has cited no authority
however for the proposition that employees have no right to make
public the fact that they are dissatisfied with their employers labor
practices Certainly nothing in Jefferson Standard suggests such a rule
and the Board s most recent holdings expressly refer to the right of
employees to make third party appeals
34 Badgely also wrote a letter to Respondents management in which
he outlined his reasons he resent [ed] the October I letter He acknowl
edged in that letter that The Union has always been a tough sell and
that the October 1 letter had put salesmen on the defensive with ques
Lions questions they most likely have already faced due to irrespon
sible statements and rumors spread by the less professional Bee staffers
Continued
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also called salesperson David Mulvehill who testified
that the advertising manager for a large supermarket ac
count Raley s approached Mulvehill mentioned the Oc
tober 1 letter and said Well I see good people have
left the Union what s that make you a schmuck[9]
Another Raley s manager mentioned the October 1 letter
to Mulvehill commenting I know the problem is inter
nal I know that it s a union management negotiating
thing and Raley s has those same problems through
out and it s unfortunate that you have to go outside
and wash your laundry with everyone else Another ad
vertiser says Mulvehill alluded to the letter And he
says hey he says would you explain some of these
things that came out in this letter[9] what s it like
down there at the Union[?] Mulvehill acknowledged
however that he didn t lose any business as a result of
such questions from his clientele
Respondent is not entirely satisfied with the evolution
of the law since Jefferson Standard 35 and tends to dis
miss many of the cases cited in the previous section of
this decision as being distinguishable on the ground that
their real holdings were more closely linked to their
unique facts than to the broader principles specifically
articulated by the Board 36
In any case Respondent finds that the facts here
closely resemble those in Jefferson Standard and ac
cordingly that this case is controlled by the Supreme
Court s holding and not by any of the more recent hold
ings of the Board Thus Respondent proposes at one
point that the offending handbill in Jefferson Standard
must have served as the primer for the October 1
letter drafted by the Guild spokespersons 37 I cannot
take that suggestion seriously For one thing it would
impute to the authors a perversity bordering on self de
structiveness for them to have molded their communica
tion on one which the Court had so roundly denounced
Indeed if they were instructed at all by Jefferson Stand
and the Guild s agents apparently took seriously the
need under that case to make abundantly clear in their
own communication that they were writing as employees
and union officers seeking help in a labor dispute and
thereby disclosed that they sought to secure ben
efits for themselves as employees a disclosure which
the Board sustained by the Court found to have been
critically absent in Jefferson Standard 38
(He was referring here to the fact also confirmed by Saucerman that
rival salespeople for The Bee had already confronted many of Respond
ent s advertisers with statistics showing a worsening of Respondent s cir
culation )
35 Thus Respondent finds that the standards articulated by the differ
ent tribunals are confusing superficial and contradictory factors which
the Board or courts cite as dispositive in one case are discarded or ig
noted in the next (Br at 8 )
36 Thus for example Respondent finds in Emarco supra an implicit
special which are innocently and thoughtlessly uttered in an emotional
and isolated setting Respondent wishes however that the Board had
openly articulated this exception to Jefferson Broadcasting and finds
it unfortunate instead that the Board used broader language (quoted
above) in restating the Jefferson Standard rule (communication with third
parties protected when communication is related to an ongoing labor
dispute and is not so disloyal reckless or maliciously untrue to lose the
Act s protection
31RBrat11
38I do not find it important to decide whether in fact the authors of
the October l letter or Respondent itself attempted to model their re
I now focus on other allegedly disparaging features
which Respondent finds in the employees October 1
letter In doing so I assume for the moment without
deciding that Respondent is technically correct when it
insists that neither the truth of the facts supporting the
disparagement nor uttering the disparagement within the
context of a plea for support will automatically bring
[the employee speaker] within Section 7 s protective
mantle 39 Respondent appears to find most offensive in
this regard that the authors portrayed The Union as a
newspaper facing imminent collapse 40 I accept that
the Guilds authors made statements which called into
question the continuing viability of The Union but I do
not accept that such statements alone would render their
communication an unprotected disparagement of their
employer s product Thus the Board has cautioned
that great care must be taken to distinguish between dis
paragement and what may be the airing of highly sense
tive issues Allied Aviation supra And here paraphras
mg Allied Aviation it can easily be said that There is no
question that Respondent would be sensitive to its
employees raising matters [its own ongoing viability as a
newspaper] with its [advertising] customers [but
Respondents analysis would effectively serve to pre
elude employees from protesting [Respondents labor
practices] through requests for assistance from third par
ties because [a newspapers viability] is by its
very nature a potentially volatile issue Accordingly to
the extent the October 1 letter implied that The Union
was facing imminent collapse this could not in itself
render it unprotected 41
spective written statements with the teachings of Jefferson Standard in
mind
39 R Br 12- 13 Respondent is somewhat equivocal on this point how
ever claiming elsewhere (Br 43) that the Board errs in holding that only
maliciously false statements are unprotected Respondent insists in this
regard that Anyone searching in Jefferson [Standard] Broadcasting for
a holding that employee communications must be maliciously untrue to
lose the Act s protection will search in vain It is true that the Jefferson
Standard court did not use the term maliciously untrue It did howev
er speak of the vitriolic nature of the handbillers attack on the em
ployer And a malice test is implicit in later Supreme Court decisions
in which the Court has held that untrue public assertions made in a labor
relations context are protected by Sec 7 even if they are defamatory
and prove to be erroneous unless made with knowledge of their falsity
Letter Carriers v Austin 418 U S 264 277-278 ( 1973) (emphasis added)
See also Linn v Plant Guard Workers 383 U S 53 58 ( 1966) R Br 11
Actually in full context Respondent claims that the October 1 letter re
lentlessly disparages [the newspaper] product and purveys a tone of the
newspapers imminent collapse (emphasis added ) However it is appar
ent from the letter that it does not independently disparage the news
paper-much less relentlessly so-but that it does suggest that the
newspaper is failing and in need of resuscitation Thus it is clear that the
imminent collapse feature of the letter is the real focus of Respondent s
claim that the letter is disparaging
40 R Br 11 Actually in full context Respondent claims that the Oc
tober I letter relentlessly disparages [the newspaper ] product and put
veys a tone of the newspapers imminent collapse [emphasis added]
However it is apparent from the letter that it does not independently
disparage the newspaper-much less relentlessly so-but that it does
suggest that the newspaper is failing and in need of resuscitation Thus it
is clear that the imminent collapse feature of the letter is the real focus
of Respondent s claim that the letter is disparaging
41 And compare the protected statements in Emarco supra at 833
where employees told their employers general contractor that their em
ployer was no damn good never pay their bills can t finish the job
Continued
SACRAMENTO UNION 549
Summing up to this point it was clearly not beyond
the bounds of protected activity for the Guild s commit
teemembers to have (a) written a letter to Respondent s
advertisers seeking help in their labor dispute and (b)
raised questions about the continuing viability of The
Union as a part of their appeal thereby invoking any in
terest which the employees arguably shared with the ad
vertisers even if for different reasons Moreover here
their manifest purpose was not to cause Respondent to
lose business but rather to seek support for their bar
gaining demands which if accepted by Respondent
would in their view boost morale ensure that motivated
employees would be attracted and thus help Respondent
to enhance its business position and journalistic stature in
the community 42
I deal finally with the question of the truthfulness or
falsity of certain statements of fact made in the October
1 letter and with related questions of good faith or
malice in the four authors choice of language and
themes used in their appeal for advertisers support Here
I will also discuss the factual underpinnings of statements
made in the fourth paragraph where the authors asserted
as fact During these trying times of bargaining the
paper s circulation has plummeted good employees have
left for better jobs advertising has suffered The whole
newspaper is speeding downhill
I observe first that Respondent has been somewhat
equivocal in attacking any of those statements as false
Thus Respondents main point appears to be that it
would not matter whether they were true 43 Even if Re
spondent is correct however the basis on which the
four employee authors made their statements must be
given at least some attention (as Respondent does and I
do below) in assaying the good faith or malice which at
tended their communication
I find it initially relevant to the overall loyalty issue
that the public suggestion that The Union s labor prob
lems threatened its viability was not one which first ap
peared in the October 1 letter Rather that overall theme
had already publicly surfaced in the business and adver
statements which also plainly implied that their employer faced immi
nent collapse and which clearly contained more aggravated elements of
disparagement than any to be found in the October 1 letter
42 Although it is probably evident from the letter itself I note in this
regard that the letters authors presumed as I do that Respondents ad
vertisers would also have an economic interest in Sacramento remaining
a two newspaper town if for no other reason than that competition be
tween The Bee and The Union would tend to keep advertising rates
down
43 Respondent relies on the Court s decision in Jefferson Standard and
the Boards holdings in Patterson Sargent Co 115 NLRB 1627 (1956) and
Tyler Business Services 256 NLRB 567 (1981) In the latter case the
Board reiterated the Patterson Sargent holding that truth or falsity of the
communications is not material to the test of their protected character
Id at 568 There the Board found that employee Lane s communication
was protected even though while complaining about his employers
treatment of other employees Lane had passed on to the agent of his em
ployer s customer the rumor that his employer s president and vice press
dent were having an affair The Board found it unnecessary to decide
whether the rumor of the affair was accurate or inaccurate Rather
finding that Lanes remarks did not relate to the employers products or
operations the Board found that the remarks did not display the requi
site indicia to constitute a deliberate attempt to impugn the company
Ibid
tising community in the Business Journals August 24
editorial 44
Regarding the statement that circulation has plum
meted during the lengthy period of bargaining for a
new contract the authors had relied in part on Saucer
man s ongoing experience and knowledge of circulation
trends gained in his capacity as retail account salesman
and in part on figures pbulished periodically in the ac
cepted industry Bible the Audit Bureau of Circula
tion (ABC) The ABC Report for the year ending
March 31 1987 showed that Respondents daily circula
tion had declined from a high (in second quarter 1984) of
108 651 to 89 753 by March 31 1987 Confining the pic
ture to the period beginning March 1986 (when bargain
ing for a new contract first began to the end of March
1987) daily circulation had declined from 90 468 to
89 953 I note also in this regard that Respondent appears
to quarrel only with the word plummet preferring to
use the term decline to describe its circulation losses 45
Clearly the only debate here is over a term of character
ization for an acknowledged loss in circulation At
worst therefore the October 1 letter s reference to a
plummeting circulation involves mere hyperbole and
cannot be taken as evidence of a reckless or male
cious intent on the part of its authors
That advertising has suffered was an opinion held
by among others salesperson Saucerman Respondent
sought to rebut this by introducing lineage figures re
flecting that the average number of advertising lines per
edition had increased in the previous year If the line
age figures allow a finding that the letter s authors were
in error in making the more general claim that advertis
ing had suffered those figures do not suffice to dem
onstrate that the authors made that statement maliciously
or recklessly Indeed Respondents retail advertising
manager Taylor elsewhere stated that the advertising
trend was down in the period October 1986 to Octo
her 1987 thereby tending to negate the notion that the
four employees statement was reckless or malicious
That good employees have left for better jobs was
likewise a characterization of debatable truthfulness but
no one disagrees that a substantial number of employees
had left Respondents employ during the lengthy period
the parties had operated without a new labor agreement
It is especially difficult moreover to contend that a
statement in a third party appeal about worsening em
ployee morale could evidence malicious or reckless
disparagement of an employers product or business
reputation
I have noted that Respondent has been somewhat scat
tered in its attacks on the October 1 letter as involving
unprotected disparagement This is best evidenced in
general manager Bates testimony Questions about his
own reaction to the October 1 letter Bates was hard to
pin down The General Counsel eventually challenged
him with this question It didn t matter whether the as
44 I do not imply that it would have been unprotectedly disloyal for
the Guild s committeepersons to have been first in print with the state
ment that Respondent was facing a business collapse as a result of its on
going labor strife That question is simply not raised by these facts
45R Br 6
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sertions in the October 1st letter were true or not did
it? He replied
I think it-I think it was the total letter Whether
the circulation was up or down advertising was up
or down or any of those things which are arguable
it was the tone of the letter that I think was the
problem
Bates concession that the assertions in the October 1
letter were arguable is itself enough to deflate the
notion that the letter contained recklessly or maliciously
false elements Bates eventual reliance on the tone of
the letter requires little further comment Plainly the let
ter s authors did not adopt a tone of general disparage
ment of The Union as a journalistic effort they did not
ridicule its managers nor the quality of its product
The letter s tone is overall remarkable for the absence
of such attacks and for the positive way in which its
authors chose to make their pitch for support from Re
spondent s advertisers stressing that everyone had an in
terest in seeing The Union survive and prosper
In all these circumstances therefore I conclude that
the October 1 letter contained an appeal for third party
support which did not lose its protected status merely
because it suggested that the Union was in danger of
going out of business unless it could restore employee
morale by showing greater flexibility at the bargaining
table It follows that by suspending and then discharging
the four authors of the letter Respondent impermissibly
interfered with restrained and coerced employees in the
exercise of the rights guaranteed in Section 7 of the
Act 46
spondent s admitted failure to notify the Union before
imposing those changes therefore violated Section 8(a)(5)
substantially
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Guild is a labor organization within the mean
ing of Section 2(5) of the Act
3 At all times material the Guild has been and is the
exclusive representative within the meaning of Section 9
of the Act of an appropriate unit of Respondents em
ployees as specifically described in successive collective
bargaining agreements between those parties and as sum
marized in section II B of this decision
4 By suspending on October 7 and by discharging on
October 15 1987 its employees Robert Saucerman Ana
Sandoval Georgia Canfield and Sue Harper and by
each of those acts Respondent interfered with re
strained and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby has en
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
5 By unilaterally imposing changes in established
practices affecting the right of the Guild s agents to have
access to and process grievances within Respondent s
premises Respondent has failed and refused to bargain
collectively in good faith and thereby has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act and derivatively Section
8(a)(1) of the Act
THE REMEDY
B Unilateral Changes
It is plain that Respondent without prior notice to the
Guild materially changed established practices when (a)
it invoked non employee access rules to limit the cir
cumstances and conditions under which the Guild s
agents could have access to Respondents premises 47
and (b) insisted that grievance meetings henceforth be
held off premises at commercial meeting sites Estab
lished practices respecting access of nonemployee union
representatives for purposes of discharging the Union s
representative function including grievance processing
cannot be changed unilaterally by the Employer 48 Re
46 Because it would not affect the remedy or the Order I do not
decide whether Respondent s discharge of the four employees constituted
an independent violation of Sec 8 (a)(3) of the Act Emarco supra at 835
fn 18
71 ignore Respondents implicit attempt to claim in its December 3
posting of its nonemployee access rules that the rules are mere re
minders regarding some longstanding policy That notice does not
contradict the facts demonstrated in the General Counsels case that any
such policies were never previously invoked to limit access by the
Guild s agents in the course of their representation of unit employees
Accordingly even if Respondent had traditionally enforced its rule with
respect to nonemployees generally (a matter about which I make no
finding) its historical practice of allowing Guild representatives access to
the premises was substantially changed when it began to apply such rules
to the Guild s agents
48 Granite City Steel Co 167 NLRB 310 (1967) cf National Broadcast
ing Co 276 NLRB 118 at fn 3 (1985)
Having found that Respondent violated Section 8(a)(1)
by suspending and then discharging the four authors of
the October 1 letter and that Respondent violated Sec
tion 8(a)(5) by instituting unilateral changes I shall rec
ommend that Respondent be ordered to cease and desist
and to take certain affirmative action to restore the status
quo ante the violations including offering full reinstate
ment to the four discharged employees and purging
from their employment records any references to their
alleged misconduct or disciplinary actions taken against
them in connection with the October 1 letter 49 Addi
tionally those employees shall be made whole with in
terest for any loss of pay or other benefits they may have
suffered as a result of the discrimination practiced against
them since October 7 when they were suspended to the
date on which Respondent shall have discharged its rein
statement obligations 50 I shall also order that Respond
ent rescind outstanding access policies to the extent they
purport to restrict access by the Guild s agents (whether
they be in the employ of Respondent) to its premises for
purposes of discharging the Guild s legitimate representa
tive functions and that Respondent restore to the Guild s
agents the same degree of access under the same condi
49 See Sterling Sugars 261 NLRB 472 (1982)
50 Backpay shall be computed in the manner set forth in F W Wool
worth Co 90 NLRB 289 (1950) with interest as prescribed in New Hart
zons for the Retarded 283 NLRB 1173 (1987)
SACRAMENTO UNION 551
tions which prevailed traditionally before on or about
October 1 1987 Similarly I shall prescribe in the order
that Respondent consistent with practice prevailing
before October 1987 shall upon request meet with the
Guild s agents at its premises for purposes of processing
grievances Finally I shall provide that Respondent give
the Guild adequate advance notice and upon request
bargain collectively in good faith with respect to any
future changes Respondent may contemplate imposing
relating to the Guild s access or to grievance processing
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed51
ORDER
The Respondent Sierra Publishing Company d/b/a
The Sacramento Union Sacramento California its offi
cers agents successors and assigns shall
1 Cease and desist from
(a) Suspending disciplining or discharging employees
because they engage in concerted activity protected by
Section 7 of the Act
(b) Making unilateral changes to restrict the access to
its premises of agents of Northern California Newspaper
Guild Local 52 AFL-CIO for purposes of discharging
the Guild s legitimate representative function including
by refusing to meet with the Guild s agents on its prem
ises for purposes of processing grievances
(c) 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 Consistent with the remedy section of this decision
take the following affirmative action necessary to effec
tuate the policies of the Act
(a) Offer immediate full and unconditional reinstate
ment to their former jobs to Robert Saucerman Ana
Sandoval Georgia Canfield and Sue Harper without
prejudice to their seniority or other rights and privileges
discharging if need be other employees in order to
make room for them and make those employees whole
with interest for any losses in pay or other benefits those
employees may have suffered as a consequence of Re
spondent s unlawful suspension and discharge of them
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Afford the Guild s agents whether they are in Re
spondent s employ the same rights of access for pur
poses of the Guild s discharging its representative func
tion including grievance processing which Respondent
traditionally granted before October 1 1987
(d) Notify the Guild and on request bargain collec
tively in good faith with the Guild respecting any
changes Respondent may wish to impose affecting the
Guild s traditional access privileges and grievance proc
essing procedures
(e) 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
(f) Post at its Respondents place of business copies of
the attached notice marked Appendix 52 Copies of the
notice on forms provided by the Regional Director for
Region 20 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
51 If no exceptions are filed as provided by Sec 102 46 of the Boards 52 If this Order is enforc d by a judgment of a United States court of
Rules and Regulations the findings conclusions and recommended appeals the words in the notice reading Posted by Order of the Nation
Order shall as provided in Sec 102 48 of the Rules be adopted by the al Labor Relations Board shall read Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board