Boese Hilburn Electric Service Co.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 372 (N.L.R.B. 1993)

372
313 NLRB No. 30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The supplemental decision was issued pursuant to the Board’s
October 13, 1992 unpublished order remanding this proceeding to
the judge for further findings of fact, credibility resolutions, and con-
clusions of law.
2 The judge found that BHE and BHS are a single employer. No
party has excepted to this finding.
3 Of the four employees working under Reid, Burke had the most
seniority, having worked for the Respondent for approximately 10
years. Fetters had 8 years’ seniority, Kovac had 3 years, and Walker
had been employed by BHS for less than 3 years at the time of the
hearing.
4 Unless otherwise noted, all dates hereafter are in 1991.
5 The judge did not credit Burke’s testimony that Zuck requested
that she advise Walker of the results of her research.
6 Also on February 27, Zuck held a closed-door meeting with
Reid. Although the judge found that such meetings were unusual,
there is no evidence concerning what was said at this meeting.
Boese Hilburn Electric Service Company and
Stephanie L. Burke. Case 17–CA–15678
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 25, 1992, Administrative Law Judge
David G. Heilbrun issued the attached decision, and on
March 16, 1993, the judge issued the attached supple-
mental decision.1 The General Counsel has filed ex-
ceptions and supporting briefs to both the judge’s
original and supplemental decisions.
The National Labor Relations Board has considered
the decisions and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The Respondent, Boese Hilburn Electric Service
Company (BHE), is an electrical contractor in the
building and construction industry. Boese Hilburn Sys-
tems, Inc. (BHS), a commonly owned enterprise with
BHE, is engaged in the sale and servicing of computer
products.2 At all times material to this case, both com-
panies’ clerical needs were handled by head of ac-
counting Joyce Reid and four employees: Charging
Party Stephanie Burke, and employees Helen Fetters,
Bertha Kovac, and Kathleen Walker. Working under
Reid’s supervision, Burke handled both companies’
payroll and insurance administration. Burke’s duties
also included accounts payable data entry for BHS, job
costing for BHE, and backup typing and switchboard
for both companies. Fetters acted as both companies’
receptionist and also did accounts payable data entry
for BHE. Kovac worked primarily as a secretary for
BHE, but also acted as Burke’s backup on payroll. Fi-
nally, Walker provided technical support to BHS cus-
tomers with respect to its computerized estimating sys-
tem (that company’s principal product), and handled
shipping and other clerical duties for BHS.3
In the fall of 1990, Burke was additionally des-
ignated by the Respondent as the EEO officer for both
the Respondent and BHS. Also in the fall of 1990,
Burke learned that Walker was pregnant. The two
women discussed whether Walker would receive ma-
ternity leave, particularly in light of their understand-
ing that a former employee, Andrea Katz, had received
paid maternity leave after her pregnancy. Walker sub-
sequently raised the issue with David Zuck, the presi-
dent of BHS and operations manager of BHE, who re-
sponded that he would have Burke look into the mat-
ter. Sometime in January 1991, Zuck and Burke dis-
cussed Walker’s request. Burke advised Zuck that
Walker should receive maternity leave, expressing her
concern that EEO problems might result if the request
were denied. Zuck responded that he could do what he
wanted. At about this time, Zuck also told a group of
employees, including Burke, that they would not have
to worry about losing their jobs as there would always
be paperwork for them to do.
On about February 25, 1991,4 Zuck asked Burke to
review the Respondent’s records to determine whether
Katz had received paid maternity leave and, if so,
whether she had been paid by BHS or BHE. Shortly
thereafter, Burke complied with this request, and ad-
vised both Zuck and Walker that Katz had in fact re-
ceived paid maternity leave.5
On about February 26, Burke overheard a conversa-
tion between Walker and Zuck, in which Zuck stated
that Walker was trying to ‘‘take the company’’ through
her request for maternity leave. The following day,
Walker told Burke that she would meet with Zuck in
an effort to get a final decision in this matter. Walker
stated to Burke that Zuck’s refusal to give her mater-
nity leave was unfair. Although Burke responded that
she agreed Zuck was being unfair, she also stated that
she did not wish to get involved. The subsequent dis-
cussion between Walker and Zuck was inconclusive, as
Zuck stated that Walker’s request turned on whether
Katz had been an employee of BHS or BHE, an issue
which had not then been determined.6
Beginning in the last 2 months of 1990, the Re-
spondent began experiencing substantial operating
losses on its construction operations, which converted
a net operating profit for the first 10 months of cal-
endar year 1990 of $175,000 into a net loss of $20,000
for the year. Zuck testified without contradiction that
the Respondent responded to these developments by
sharply limiting its efforts to obtain new construction
work, and by laying off BHE employees. Thus, two
BHE estimators and a superintendent had either been
laid off or left by the end of February.
Also in February, Zuck met with the Respondent’s
accountant to discuss its ongoing losses and to deter-
mine how to improve the Respondent’s profitability
373BOESE HILBURN ELECTRIC SERVICE CO.
7 In this regard, we note that the General Counsel correctly points
out that the complaint alleges only that the termination violated Sec.
8(a)(1), not, as the judge inadvertently stated, Sec. 8(a)(3).
prior to a planned effort to obtain refinancing of the
Respondent’s debt. Zuck decided that he needed to re-
duce expenses by laying off one office employee and
determined that Burke should be the one to go. On
March 1, Zuck met with Burke and advised her of his
decision. When Burke asked Zuck whether the ‘‘mater-
nity thing’’ had anything to do with Zuck’s decision,
he responded that it ‘‘aggravated’’ it. As Burke left his
office, Zuck also told her that he did not want her
going out there ‘‘stirring up a bunch of shit.’’
The Judge’s Decision
The judge found that Burke’s activities concerning
Walker’s maternity leave were not concerted activity
within the meaning of Section 7 of the Act. Rather, the
judge found that Walker’s pursuit of paid maternity
leave was strictly an individual matter, and that
Burke’s involvement was limited to ‘‘empathetic dis-
cussion between the women [Burke and Walker]’’ and
an ‘‘innocuous inquiry’’ to Zuck in January. In this re-
gard, the judge noted that Burke had told Walker that
she did not want to get involved prior to Walker’s con-
fronting Zuck in late February. The judge also stated
that Burke’s ‘‘vague role’’ as an EEO officer ‘‘was
practically a dead letter’’ with no significance to a de-
termination of whether her actions were concerted.
The judge also found that, even if Burke’s activities
were found to be protected, concerted activity, they
were not a motivating factor in her selection for dis-
charge. Thus, the judge noted that the Respondent did
not terminate Walker, who was ‘‘even more vocal than
Burke’’ in seeking the maternity leave. The judge also
found that the Respondent had substantiated its asser-
tion that economic reasons alone motivated the ‘‘lay-
off,’’ in that the Respondent was experiencing substan-
tial net operating losses on its construction business,
and needed to reduce its overhead in order to obtain
renewal of its line of credit with its bank. The judge
also noted that the Respondent had laid off three other
employees at the time of Burke’s termination, that the
choice of ‘‘well compensated Burke’’ was not star-
tling, and that the Respondent returned to profitability
in May 1991, after Burke’s termination.
Finally, the judge found no merit to the allegations
that Zuck’s statements to Burke that the ‘‘maternity
leave thing’’ had ‘‘aggravated’’ the decision to select
her for layoff, and that she should not ‘‘go out there
stirring up shit’’ independently violated Section
8(a)(1). In this regard, the judge found these statements
to be ambiguous, when considered in context, and
therefore not to have constituted an attempt to prohibit
Burke from engaging in such activities.
The General Counsel’s Exceptions
The General Counsel initially contends that the
judge’s finding that Burke did not engage in concerted
activity is erroneous as a matter of law, given his find-
ings that she was championing Walker’s ‘‘EEO
rights’’ as well as her quest for maternity leave in her
conversations with Zuck concerning this matter. The
General Counsel further contends that the discussions
between Walker and Burke concerning maternity leave
were themselves concerted activity, and that Zuck was
aware of those discussions.
The General Counsel also asserts that the judge
erred in finding that Zuck’s statements to Burke during
the course of the termination meeting were too ambig-
uous to constitute violations of Section 8(a)(1). In this
regard, the General Counsel asserts that the Board has
found similar statements to be coercive, and hence un-
lawful.
Finally, the General Counsel takes issue with the
judge’s finding that Burke’s termination did not violate
Section 8(a)(1) under these circumstances.7 Initially,
the General Counsel asserts that Zuck’s statement that
‘‘the maternity leave thing’’ ‘‘aggravated’’ the deci-
sion to terminate Burke, alone, is sufficient to establish
that the termination was unlawful. The General Coun-
sel also asserts, however, that the Respondent has not
established that it would have terminated Burke even
in the absence of her protected, concerted activities. In
this regard, the General Counsel notes: (1) Zuck’s
statement to employees in January that their jobs
would always be safe; (2) that the Respondent gave all
of the clericals, including Burke, a $1500 bonus 2
weeks before Burke’s termination, and gave its man-
agers raises as well; (3) the Respondent’s gross reve-
nues increased in the month of February; (4) the tim-
ing of the discharge relative to Burke’s protected, con-
certed activities and Zuck’s closed door meeting with
Reid; and (5) the fact that Burke was the most senior
employee and could perform all the duties required of
the office clericals.
Discussion
Contrary to the judge, we find that Burke’s involve-
ment with Walker’s efforts to obtain maternity leave
constituted concerted activity protected by Section 7 of
the Act. The credited testimony establishes that Walker
and Burke engaged in several discussions in which
both employees complained about Zuck’s asserted un-
fairness in failing to grant Walker the paid leave she
requested, and that Zuck was aware of these discus-
sions. In particular, the judge credited testimony that
Burke and Walker agreed in one such conversation that
Zuck was being unfair. The Board has found that the
airing of complaints of this type constitutes concerted
activity. Salisbury Hotel, 283 NLRB 685, 686 (1987).
See also Vought Corp., 273 NLRB 1290, 1294 (1984),
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Specifically, the Respondent’s construction operations lost
$98,097.89 in November 1990, $96,559.17 in December 1990,
$9,365.35 in January 1991, $3,914.24 in February 1991, $13,997.45
in March 1991, and $9661 in April 1991. Although the Respondent’s
construction business returned to profitability in May 1991, this was
associated with a significant reduction in overhead costs—the very
reason given by the Respondent for Burke’s discharge.
9 On the contrary, the Respondent’s accountant testified that
monthly audits were not completed until the 10th to the 15th of the
following month.
enfd. 788 F.2d 1378 (8th Cir. 1986) (employee told
coworkers that another employee had been
discriminatorily selected for promotion).
Likewise, the judge credited testimony that, subse-
quent to her initial discussions with Walker about ma-
ternity leave, Burke protested to Zuck that his refusal
to grant maternity leave to Walker was unfair, and po-
tentially in violation of Walker’s EEO rights. These
protests also constituted concerted activity. Yellow
Freight Systems, 297 NLRB 322 (1989) (protesting to
supervisor alleged harassment of coworker).
We also find that Zuck’s statement to Burke that
‘‘the maternity thing’’ ‘‘aggravated’’ his decision to
select her for termination violated Section 8(a)(1).
Contrary to the judge, we perceive no ambiguity sur-
rounding this remark. Rather, we find that a reasonable
employee hearing the statement, during the course of
a meeting at which the employee’s termination was an-
nounced to them, would conclude that their involve-
ment in protected, concerted activities played a role in
their selection for termination. Such statements, of
course, have a reasonable tendency to interfere with,
restrain, or coerce employees in the exercise of Section
7 rights and, hence, violate Section 8(a)(1). Sands
Hotel & Casino, 306 NLRB 172 (1992).
We also reverse the judge’s dismissal of the com-
plaint allegation that Zuck’s statement to Burke that
she should not go out there stirring up a ‘‘bunch of
shit’’ was not unlawful. Particularly when viewed in
light of Zuck’s prior statement that Burke’s involve-
ment in concerted activities had played a role in her
selection for layoff, we find that Burke could reason-
ably have viewed this statement as an order not to dis-
cuss her termination with her coworkers. Such instruc-
tions violate Section 8(a)(1). See Kinder-Care Learn-
ing Centers, 299 NLRB 1171, 1172 (1990). See also
Walker Die Casting, 255 NLRB 212, 217 (1981),
modified on other grounds and enfd. 682 F.2d 592 (6th
Cir. 1982) (admonition to employee to mind her knit-
ting found unlawful).
In light of Zuck’s statement that the ‘‘maternity
thing’’ aggravated the decision to terminate Burke, we
find that the General Counsel has established a prima
facie case that Burke’s concerted activities were a mo-
tivating factor in her discharge. Once the General
Counsel establishes a prima facie case, the burden
shifts to the Respondent to show that it would have
taken the same action even in the absence of Burke’s
concerted activities. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). For
the reasons which follow we agree with the judge that
the Respondent has satisfied its burden in this case.
Initially, we agree with the judge that the Respond-
ent has shown that its construction business was suffer-
ing substantial losses beginning in the last 2 months of
1990 and continuing until May 1991—well after the
date of Burke’s discharge.8 Moreover, the judge cred-
ited Zuck’s uncontradicted testimony that in February
he determined that a layoff was necessary to reduce
overhead and improve the Respondent’s balance sheet
in order to improve its chances of obtaining needed re-
financing from its bank. We note that its efforts in this
regard were apparently successful, as the Respondent
substantially reduced its overhead and the amount of
its net loss within a few months after the discharges
of Burke and the other BHE employees. We also note
that Burke had not been replaced as of the date of the
hearing. Rather, her duties have been apportioned
among the remaining clerical employees with little if
any increase in overtime after an initial adjustment pe-
riod.
We further find that the General Counsel has not
shown that these justifications for the discharge are
pretextual. Although the General Counsel asserts that
the bonuses and wage increases granted by the Re-
spondent show that its financial condition was not so
dire as to require a layoff, Zuck testified without con-
tradiction that the wage increases were granted in Oc-
tober 1990, before the Respondent’s financial condition
deteriorated, and that the bonuses were in fact Christ-
mas bonuses which the Respondent had delayed until
February because its financial picture was so poor in
December 1990. In our view, the delayed Christmas
bonuses bolster, rather than undercut, the Respondent’s
assertion that its business had deteriorated substantially
by the end of February 1991.
Likewise, we do not agree that the upturn in the Re-
spondent’s gross revenues in February establishes that
the Respondent’s explanations for the layoff are
pretextual. Initially, we note that the General Counsel
has not shown that the February figures had even been
calculated on March 1, the date on which Burke was
terminated.9 Moreover, Zuck testified that the decision
to terminate Burke was made in the first 2 weeks of
February; the General Counsel has not shown how the
Respondent would have known its gross revenue fig-
ures for the month on that date. We further note that
the Respondent’s gross revenues fluctuated substan-
tially from month to month, but nevertheless were on
a general downward trend from October 1990 to Octo-
ber 1991, the last month for which figures are pro-
375BOESE HILBURN ELECTRIC SERVICE CO.
10 Under these circumstances, we find that Zuck’s statement in
January that the clerical employees did not have to worry about their
jobs also does not establish that its claims of financial distress were
pretextual.
11 In this regard, we also note that the Respondent has explained
the timing of its decision with respect to Burke by pointing to its
impending presentation of its financial data to its bank in order to
obtain refinancing of its revolving line of credit.
12 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
vided. Finally, despite the increase in gross revenues
on which the General Counsel relies, it is undisputed
that the Respondent was still operating at a net loss for
the month of February.10
We also find that the Respondent has shown that it
selected Burke, rather than one of the other clerical
employees, for layoff for legitimate nondiscriminatory
reasons. Initially, we find that the link between
Burke’s concerted activities and her termination is
somewhat attenuated by the fact that Walker, who also
engaged in protected, concerted activity which was
both more active, more confrontational, and closer in
time to the date of the termination decision, was not
selected, and that the Respondent had previously termi-
nated three other employees in the same area of its
business.11 Further, the Respondent has explained that
it selected Burke because (1) she was the highest paid
of the clerical employees other than Reid, her superior,
meaning that her discharge would result in the greatest
reduction in overhead; (2) Helen Fetters, who was the
Respondent’s receptionist, was not selected because
she had cancer and could not afford to lose her health
benefits; (3) Walker was not selected because she
alone handled technical support for the computer esti-
mating package, which was BHS’s primary product;
and (4) Burke’s duties primarily related to BHE, which
was suffering substantial losses as set forth above, had
already laid off several of its construction employees,
and thus had less need for clerical and payroll support.
We find no merit to the General Counsel’s assertion
that these explanations are pretextual. Although the
General Counsel asserts that Burke was the most sen-
ior clerical employee apart from Reid, and could per-
form any clerical or office duty required, the Respond-
ent has not asserted that Burke was not qualified but
rather that she was selected because her discharge
would effect the greatest reduction in its overhead. The
General Counsel has not demonstrated that this asser-
tion is false. To the contrary, the record discloses that
the remaining employees were able to absorb her du-
ties with only a temporary increase in overtime hours.
In sum, the evidence in this case establishes that the
Respondent made a business decision to discharge a
relatively highly paid, skilled employee, and to redis-
tribute her duties among the remaining, less skilled but
also lower paid employees, in order to reduce its sig-
nificant operating losses and present an acceptable bal-
ance sheet to its bank in support of its impending bid
for refinancing. We therefore find, for all the foregoing
reasons, that the Respondent has established that it
would have taken the same action even in the absence
of Burke’s protected, concerted activities and accord-
ingly dismiss the allegation that Burke was discharged
in violation of Section 8(a)(1).
CONCLUSIONS OF LAW
1. By telling employee Stephanie Burke that her
protected, concerted activities ‘‘aggravated’’ the deci-
sion to select her for discharge, and by subsequently
instructing her not to ‘‘stir up any shit’’ following her
discharge, the Respondent has interfered with, re-
strained, or coerced Burke in the exercise of the rights
guaranteed by Section 7 of the Act.
2. The Respondent has not otherwise engaged in any
unfair labor practices as alleged in the complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, Boese Hilburn Electric Service Company,
Merriam, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Telling employees selected for discharge that
their protected, concerted activities aggravated the de-
cision to discharge them.
(b) Ordering discharged employees not to discuss
their termination with other employees.
(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. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Merriam, Kansas, copies of
the attached notice marked ‘‘Appendix.’’12 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 Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
376 DECISIONS 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell our employees that their pro-
tected, concerted activities were a factor in their selec-
tion for discharge.
WE WILL NOT direct our employees not to discuss
their discharge with other employees.
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.
BOESE HILBURN ELECTRIC SERVICE
COMPANY
Richard C. Auslander Esq., for the General Counsel.
Thomas M. Moore (Moore & Bucher, P.C.), of Kansas City,
Missouri, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was heard at Mission, Kansas, on November 20, 1991. The
charge and an amended charge were filed June 21 and July
29, 1991, respectively. A complaint was issued July 30,
1991, which was amended at the outset of trial. The primary
issues that result are whether Boese Hilburn Electric Service
Company (Respondent) laid off Stephanie L. Burke for en-
gaging in protected, concerted activities, as well as verbally
prohibiting such activities and informing her that layoff was
due to so engaging, in violation of Section 8(a)(1) of the Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of written,
posthearing presentations by General Counsel and Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Merriam, Kansas, where it has been engaged as
an electrical contractor in the building and construction in-
dustry, providing electrical service for commercial and indus-
trial facilities. During the 12-month period ending March 31,
1991, Respondent, in the course and conduct of its business
operations described above, performed services valued in ex-
cess of $50,000 in States other than the State of Kansas. On
these admitted facts, I find that Respondent is now, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
After an approximately 10-year office career with Re-
spondent, Charging Party Stephanie L. Burke was suddenly
laid off in March 1991 for claimed economic reasons. This
followed shortly after her designation as the private employ-
er’s ‘‘EEO Officer,’’ and her personal interest in assuring
maternity benefits for another employee. Burke’s layoff oc-
curred about a month before the other employee left for ma-
ternity, and the benefits being sought were ultimately paid by
Respondent.
B. Single-Employer Issue
General Counsel has concern for its theory of statutory en-
gagement in concerted activity because Burke worked for
one corporate entity, and the pregnant employee worked for
a different one but at the same physical location. For this
reason, General Counsel argues that a single-employer status
should be found with regard to Respondent and the other
corporate entity, or that at least the two be held as a joint
employer.
The courts and the Board have repeatedly set forth the test
for a single employer. Radio Union v. Broadcast Services,
380 U.S. 255 (1965); Blumenfeld Theatres Circuit, 240
NLRB 206 (1979), enfd. 626 F.2d 865 (9th Cir. 1980); Rock-
wood Energy & Mineral Corp., 299 NLRB 1136 (1990);
Hydrolines, Inc., 305 NLRB 416 (1991). There should exist
an interrelation of operations, common management, central-
ized control of labor relations, and common ownership. Also
relevant are such factors as the use of common office facili-
ties, common equipment, and the interchange of key person-
nel. Not all of these factors must be found to establish the
existence of a single-employer situation, and no one factor
is controlling. Single-employer status ultimately depends on
‘‘all the circumstances of the case,’’ and is characterized by
an absence of the arm’s-length relationship found among
unintegrated companies. Operating Engineers Local 627 v.
NLRB, 518 F.2d 1040 (D.C. Cir. 1975).
Here, the Respondent has been in existence tracing back
to 1949. In 1986, the separate corporation called Boese
Hilburn Systems, Inc. was established to soon engage in sell-
ing, shipping, and servicing computer hardware, computer
software packages, and related products. Both Respondent
and Boese Hilburn Systems, Inc. (Systems) are subsidiaries
of the holding company Victory Investments, Inc. The cur-
rent directors of Respondent are Grant Hilburn, Robert Law-
rence, and David Zuck. Only Hilburn and Zuck constituted
the directors of Systems during its recent existence. Hilburn
identified himself as owner and president of Respondent,
while Zuck testified that he was operations manager of both
Respondent and Systems. Zuck was simultaneously the presi-
377BOESE HILBURN ELECTRIC SERVICE CO.
1 All dates and named months hereafter are in 1991, unless indi-
cated otherwise.
dent of Systems, and continues in that capacity with the cor-
porate entity succeeding Systems in May 1991. Joyce Reid,
a senior office employee and head of accounting, is corporate
secretary-treasurer for Respondent and for Systems so long
as it existed.
The two entities had used separate space within the same
building, had one common telephone number, and provided
each other crossover clerical services, accounting, space utili-
zation, computer networks and products, financial credit, and
utilities. Employees of both entities followed the same hours
of work, accessed the same eating amenities inside the build-
ing, and assisted each other without regard to corporate
name. In the course of happenings that this case concerns,
Zuck made no distinctions in regard to the responsibilities
Burke would have borne as EEO officer for the collective
enterprise as between Respondent’s employment policies and
those of Systems.
I find that at all times material, Respondent and Systems
have been affiliated business enterprises with one common
officer, common ownership, a comparably controlling direc-
torship, and the same managing supervision. They have for-
mulated and administered a common labor policy affecting
employees of the operations, have shared common premises
and facilities, have provided services for and made sales to
each other, and have shared personnel with each other. I hold
Respondent and Systems to be a single employer. See Good-
man Investment Co., 292 NLRB 340 (1989).
C. Evidence
Burke’s duties were to do payroll for both entities and ad-
ministration of their insurance, plus job costing for Respond-
ent and accounts payable for Systems. Prior to Burke’s lay-
off, the other employees comprising Respondent’s office staff
were Reid who did overall bookkeeping, Helen Fetters, a re-
ceptionist also able to do accounts payable, and Bertha
Kovacs, a general clerical who could back up the payroll
functions if necessary. These various employees were
crossed-trained in the office functions of public contact, pay-
roll, and bookkeeping. Kathleen Walker was a clerical sup-
port employee working for Systems, having been hired in
January 1989.
Andrea Katz was previously employed by Systems, and
has been an acquaintance of Walker for several years. Katz
had taken a maternity leave in 1989, and received 4 weeks
of maternity leave pay while off work. Walker learned of
this while socializing with Katz late in 1990.
In the fall of 1990, Burke and Walker had occasion, as
colleagues in a common workplace, to discuss the fact that
the latter had become pregnant. This occurred about the same
time as Burke’s casual designation as EEO officer, for which
she was given a binder to be looked at and filed away. As
time passed into early 1991, Burke had a brief conversation
in Zuck’s office, asking the official if he planned to pay ma-
ternity leave to Walker as had been done for Katz. Burke
testified that he dismissed the inquiry, to which Burke inti-
mated it could mean ‘‘trouble with EEOC.’’ She recalled
Zuck later asking her informally in mid-February 1991, what
Katz had been paid. To this Burke stated a belief it had been
4 weeks. In late February, however, Zuck spoke to Burke
asking that she ascertain from company records exactly what
Katz had been paid at the time of her maternity, and whether
sick leave and vacation had been included with such com-
pensation. Burke asserted that she was to let both Zuck and
Walker know of the answer. Burke recalled looking this up
and reporting back to Zuck that the records showed Katz
being paid 4 weeks’ maternity leave without a charge against
sick leave or vacation. She added that this had happened
after Katz had been with the Company for only about 6
months. She testified that Zuck expressed a refusal to extend
such pay to Walker, and that she disputed the point with
him. Burke had provided the same information to Walker
earlier that day.
Burke testified further that on the following day, which
she fixed as February 26, 1991, she was working jointly with
Walker when Zuck appeared. The official said he opposed
Walker having maternity benefits and that Katz had not been
paid any. According to Burke this distortion of fact was dis-
cussed between the two women after Zuck left the area.
Walker said she would try ‘‘pinning him down’’ on the mat-
ter. Burke recalled how later that day Walker returned from
the direction of Zuck’s office, looking dejected and saying
Zuck offered only an unfair and inadequate benefit package
for her absence on maternity.1
Walker testified that the subject of a ‘‘maternity policy’’
originated when she inquired about it with Burke in late
1990. She next raised the subject with Zuck during a private
conversation in his office occurring around late January or
early February. Walker emphasized both her value and her
deservingness as to such a benefit. However, at the time
Zuck simply told her that he would have Burke check into
the matter. A few days later, Walker approached Burke about
an answer, and before that day was over Burke advised her
that the check showed Katz had been given 4 weeks.
Subsequently, after the episode when Burke and Walker
were working together and Zuck appeared briefly to mention
the maternity leave subject, Walker determined to ‘‘get this
settled’’ and proceeded into Zuck’s office. This had followed
a remark to her with Burke saying she did not ‘‘want to get
involved in this.’’ The discussion by Walker with Zuck was
inconclusive, because he hinged any decision on the un-
known factor of whether Katz had been an employee of Re-
spondent or of Systems when paid maternity benefits. Walker
did not thereafter obtain any answer until following her con-
finement in April, when it turned out that she was being
given 4 weeks of paid maternity leave.
On the morning of March 1, Zuck called Burke into his
office to say that she was being ‘‘let go.’’ Burke testified
that Zuck admitted how her activities regarding Walker’s
‘‘maternity thing’’ had ‘‘aggravated’’ his decision to termi-
nate her employment with his stated cutback on overhead.
Zuck did offer 9 weeks of severance pay, and this was dis-
bursed to her over the weeks following. Burke had also re-
ceived a $1500 bonus in February, deferred as it was for
other clerical employees from late 1990. Burke’s immediate
action following this news was to protest her termination to
Hilburn, but this was unavailing. She had done this notwith-
standing, as she uncontradictedly testified, that Zuck had told
her when the layoff meeting ended not to ‘‘go out there stir-
ring up a bunch of shit.’’
Regarding business operations during calendar year 1990,
Respondent had shown a net operating profit by the end of
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Meyers Industries (Meyers), 268 NLRB 493 (1984), and Meyers
Industries (Meyers), 281 NLRB 882 (1986).
October totaling $175,000. The last 2 months of that year re-
sulted in net operating losses of over $90,000 for each pe-
riod, with the result that the year end result was an approxi-
mate $20,000 net loss on operations. This financial picture
had been discussed between Zuck and his CPA, Ed Page, in
consequence of which a decision was reached to reduce ex-
penses by the layoff of one office employee. The person
Zuck selected was Burke. This was assertedly on grounds
that her job duties could be spread among the remaining of-
fice employees, and that in each of their cases a specific rea-
son existed for retention.
D. Credibility
I generally discredit the testimony of Burke, whose de-
meanor did not satisfy me that she was fully accurate in the
recollections given. She was contradicted in significant re-
gards by Walker as to her commitment to the maternity ben-
efit matter, and as to whether Zuck had once denied knowing
about Katz’ maternity leave after being so informed by
Burke. In addition, she was further contradicted by the essen-
tially credible Robert Baslock, regarding disclosure of con-
fidential salary information to him concerning another per-
son.
Implicit in this evaluation is my crediting with a high de-
gree of confidence the testimony of Walker and, with only
minimal certainty the testimony of Baslock. I also credit
Zuck and Page, whose demeanor presentations were adequate
to cause my belief in their testimony.
E. Discussion
I do not find that the facts of this case establish concerted
activity on Burke’s part. The maternity benefit issue involv-
ing Walker was strictly an individual matter, and does not
under the law constitute an activity for the benefit of other
employees generally.
The Board has exhaustively discussed its definition of con-
certed activities in the Meyers I and Meyers II decisions.2
The plainest statement of this definition, as taken from Mey-
ers I and later reaffirmed, states:
In general, to find an employee’s activity to be ‘‘con-
certed,’’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by
and on behalf of the employee himself. [Id. at 497.]
In Burle Industries, 300 NLRB 498 (1990), the Board found
that an individual was unlawfully discharged after his effort
‘‘to induce group action.’’ This holding was traced to an
originating rationale in Mushroom Transportation Co. v.
NLRB, 330 F.2d 683 (3d Cir. 1964), in which the court re-
quired concerted activities to appear at the very least as en-
gaged in with the objective of inviting or inducing or prepar-
ing for group action, or that it have some relation to group
action in the interests of employees. Mushroom Transpor-
tation, supra at 685. The Board took particular note of this
case being cited with approval in Meyers II. See also Whit-
taker Corp., 289 NLRB 933 (1988).
Here, the dynamics were highly individual in nature origi-
nating in little more than empathetic discussion between the
women and leading from this to Burke’s innocuous inquiry
to Zuck in January. Her vague role as an EEO officer pro-
vides no basis to convert such a passing inquiry into some
component of potential group activity by employees. The
EEO officer designation was totally formless, and carried no
assigned responsibility or apparent commission to crusade for
the betterment of employees at this informally, close-knit en-
terprise. Nor did the designation lead to any informative
postings or activity involving even minimal documentation.
As a factor in analyzing the issue of ‘‘concerted activity’’
relative to Section 7 of the National Labor Relations Act,
Burke’s appointment was practically a dead letter. The more
significant fact is that Walker credibly testified how Burke
had expressly disavowed involvement in the maternity leave
subject.
This disavowal done during February also signaled a more
important phase, which was Walker’s own assertive ventur-
ing with Zuck. In this process she preempted the subject as
her own personal effort, and expressed this most in her testi-
mony of telling Zuck that he would hear the pugilistically
referenced ‘‘round two’’ from her. The evidence fails to
show any meaningful involvement by Burke following this
preemption, and I believe the final configuration of facts is
devoid of a showing that Burke’s undertaking was done
‘‘with or on the authority of’’ Walker. Meyers I, supra at
497.
General Counsel’s case authorities on the point are each
distinguishable. In Precision Tool & Die Mfg. Co., 205
NLRB 205, 208 (1973), a petition was ‘‘the combined effort
of all the employees in the shop to improve their wages,
hours, and working conditions.’’ Again in L & S Enterprises,
245 NLRB 1123 (1979), the undertaking of a discharged em-
ployee was ‘‘for engaging in the formulation, circulation, and
presentation of a petition concerning wages, hours, and
working conditions.’’ In J. J. Security, 252 NLRB 1290
(1980), the general context was that of an entire six-member
employee complement at a detached worksite meeting ‘‘as a
group with their employer, for the express purpose of achiev-
ing higher pay and shorter hours.’’ Such objective was
termed in this case as ‘‘their quest for improved wages,
hours, and conditions of employment.’’ J. J. Security, supra
at 1291–1294. The collective nature of these authorities, cou-
pled with the teachings of Meyers I, makes the Burke-Walker
continuum of inquiry-type contacts with Zuck so highly dis-
tinguishable that an instance of statutory concerted activity is
not shown.
Even if Burke’s activities were held to be concerted, the
further issue remains as to whether or not it motivated Zuck
in his selection of her for layoff. Here, I do not believe the
evidence is sufficient to establish that conclusion. Among
other things of Walker herself being even more vocal than
Burke in regard to seeking this benefit, I find that by ap-
proximately mid-February Respondent’s reason for the layoff
was purely economic. I am persuaded that its profit and loss
statements are both highly authentic and relevant to the issue,
and that they plainly show the significant business losses de-
scribed. Furthermore, I am satisfied that a sincere concern for
the losses was held by Respondent in terms of preparing its
business plan for the renewal of major bank financing. The
claim that construction activity trailed off in late 1990 and
well into 1991 is fully in keeping with national awareness on
the economy as a whole. By the time of Burke’s layoff, two
379BOESE HILBURN ELECTRIC SERVICE CO.
1 All dates and the named months hereafter are in 1991, unless in-
dicated otherwise.
construction estimators and a superintendent had been termi-
nated or left. New construction endeavors were limited by a
business awareness, supported by the advisory role of CPA
Page, that reduction of excessive overhead expenses was the
only route back to profitability. In this regard, I specifically
reject General Counsel’s argument that the February (1991)
revenues of $270,000 represented a different picture. On the
contrary, I find this nothing more than an instance of revenue
surges in the construction business, and note too that the
month in question still resulted in a net loss. It is also note-
worthy that March (1991) also showed a large loss as the
next to last month of such before profitability was restored.
This reflected both the large severance pay granted Burke,
and the transitional overtime worked by other employees
after she was gone.
On the separate issues of claimed independent 8(a)(1) vio-
lation, I do not believe this is established from Zuck’s two
undenied verbalisms. In the full context here, use of the word
‘‘aggravate[d]’’ is not sufficiently free of ambiguity to hold
that it proves how legally protected activities have been vio-
lated. As to the ‘‘stirring up shit’’ remark, this is even less
directly a statement that such activities were attemptedly pro-
hibited. Overall, the probative evidence does not support es-
sential allegations of the complaint.
CONCLUSIONS OF LAW
1. Boese Hilburn Electric Service Company is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent did not commit unfair labor practices as al-
leged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]
Richard C. Auslander Esq., for the General Counsel.
Thomas M. Moore (Moore & Bucher, P.C.), of Kansas City,
Missouri, for the Respondent.
SUPPLEMENTAL DECISION
DAVID G. HEILBRUN, Administrative Law Judge. This sup-
plemental decision is issued in fulfillment of the Board’s
order remanding proceeding dated October 13, 1992. The se-
quence of matters set forth shall be (1) delineation of credi-
bility resolutions, (2) specific findings of fact, and (3) a cur-
rently recommended case disposition.
I. CREDIBILITY RESOLUTIONS
The credibility resolutions of testimony by Stephanie
Burke about her conversations with David Zuck and Kath-
leen Walker, as based on her demeanor, are as follows:
1. Burke is credited in saying that during early January
1991, Zuck remarked to a group at which she was present
that clerical employees would not have to worry about losing
their jobs.1
2. Burke is credited in saying that during conversation
with her in mid-January, Zuck stated he was able to do what
he wanted, meaning he would not pay Walker anything for
maternity leave and he was unconcerned about having EEOC
trouble.
3. Burke is credited in saying that during conversation
with her in mid-February, Zuck asked what, if anything,
former employee Andrea Katz had been paid for maternity
leave.
4. Burke is credited in saying that during conversation
with her on (or about) February 25, Zuck asked her to check
past records that would show whether, and in what manner,
Katz had been paid as a maternity leave matter. Burke is dis-
credited in recalling that on this occasion Zuck told her to
inform Walker about results of the check.
5. Burke is credited in saying that while engaged in com-
puter tasks in Walker’s office during late afternoon on (or
about) February 26, she overheard a brief remark by Zuck
to Walker as he was passing by that she (Walker) was trying
‘‘to take the company’’ as to maternity leave benefits. Burke
is discredited in recalling that on this occasion Zuck also
then claimed Katz had not been paid anything of this nature.
6. Burke is credited in saying that during conversation in
Zuck’s office on March 1 where notice of her termination
was made, Zuck stated the ‘‘maternity thing’’ had ‘‘aggra-
vated’’ his decision. Burke is discredited to the extent that
her testimony as to such a statement carried the intimation
that Zuck expressed a retaliatory intention as to her person-
ally. Comparably as to further passing of words between the
two conversationalists while in Zuck’s office on that date,
Burke is credited in saying that Zuck stated he did not want
her to go throughout the facility ‘‘stirring up a bunch of
shit.’’ Burke is discredited to the extent that her testimony
as to such a statement carried the intimation that Zuck urged
anything more than that she not emerge from their private
conversation, and before leaving the premises behave openly
and disruptingly like an angry, disgruntled person.
7. Burke is discredited in saying that during a conversation
with Walker in late afternoon of February 26, Walker had
stated that Zuck just falsely said to her that Katz had not
been paid anything as a maternity leave benefit. This particu-
lar evaluation is influenced by the highly persuasive testi-
mony given by Walker, a witness presenting with excellent
demeanor, one not given to the indication of slanting her re-
sponses or having a particular bias, and one whose less de-
tailed testimony as to dates, time lines, and seeming
exactness of fact was nevertheless more convincing as a can-
did, natural matter of drawing from memory.
II. FINDINGS OF FACT
1. Before the year 1990 ended, a pregnant Walker came
to believe from conversation with her friend Katz that the
latter, while a past employee of this general business enter-
prise, had received 4 weeks’ pay as a maternity leave-type
of benefit.
2. By on or about February 1, Walker had initiated infor-
mal conversation with Zuck, inquiring about whether she
would receive paid maternity leave benefits.
3. Zuck was initially unsympathetic toward the idea of
Walker receiving paid maternity leave benefits, and his disin-
terest in her request left him uncertain as to whether former
employee Katz had received compensation of this type, and
if so what exact component of the general business enterprise
had been her employing entity for purposes of such an out-
lay.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Burke and Walker, as persons working in the same gen-
eral business enterprise and as frequent lunchtime compan-
ions during the first 2 months of 1991, talked conversation-
ally and concernedly about Walker’s imminent absence on
maternity leave and the fairness, intrinsically and in compari-
son to Katz’ earlier treatment, of Walker being granted some
generous form of paid maternity leave.
5. The persistence of Walker’s inquiries caused Zuck to
request that Burke research the matter of Katz’ compensa-
tion, and advise him on the facts (only as relating to pay-
ment).
6. Burke fulfilled this request soon after it was made, ad-
vised Zuck of the fact of past payment to Katz in the official
sense she was expected to do, and further advised her com-
panion coworker Walker of the same fact in ordinary causal
conversation.
7. Burke knew from experiences on February 25, 26, and
27 that Zuck was gruffly unsympathetic to the principle of
again extending a paid maternity leave benefit to Walker,
and further knew over this approximately 48-hour timespan
that the subject was probably evolving toward some decision.
8. By the close of business February 27, the request of
Walker for paid maternity leave had stalled with Zuck’s
countering thoughts, that any money to be paid over at
around the time of actual childbirth would likely be drawn
from vacation and sick leave entitlements.
9. Burke had voiced EEO to Zuck as a subject matter and
the EEOC as an enforcement agency as early as mid-January
from her peripheral interest in Walker and growing dismay
about Zuck’s seeming unenlightenment on the subject, and
the fact that he represented the chief official blocking com-
pliance with Walker’s reasonable seeming request.
10. Respondent’s accounting advisor had engaged in a
confidential review with Zuck of financial projections, and
had legitimately resolved to advise the termination of Burke
as the clerical employee whose absence would most effec-
tively alleviate growing financial adversity.
11. The largely unprecedented, closed-door meeting on
February 27 between Zuck and Joyce Reid, the latter being
Respondent’s long-service corporate officer and head of ac-
counting, happening close in time to CPA Ed Page’s recently
completed series of meetings in mid-February, does not give
rise to any inferences bearing on issues on the case.
12. The termination meeting between Burke and Zuck on
March 1 revealed the latter to be gruff, vulgar, and rigid of
manner, but did not reveal the episode as anything more than
a pure notification, unhappy to all concerned, that a particu-
lar person had been necessarily chosen to lose employment
in defense of larger business interests.
III. ISSUE ANALYSIS
The Board’s remand directs an analysis of Burke’s termi-
nation on the assumption that her activities were concerted
in nature, and as to the alleged independently violative state-
ments uttered by Zuck.
On the first point, the necessary analysis follows a frame-
work of principles established in Wright Line, 250 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), and approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). Under
Wright Line, General Counsel has the initial burden of estab-
lishing a prima facie case that an employee was discharged
or laid off by his employer because of unlawful animus. As
part of the prima facie case, General Counsel must prove that
the employee engaged in union or other protected activity,
that the employer had knowledge of the employee’s activity,
and that the employee was discharged or laid off from em-
ployment because of union animus or other unlawful motive
in violation of Section 8(a)(3). An inference of unlawful dis-
crimination against an employee may be drawn from em-
ployer hostility, and any coincidence between the employee’s
activities and a closely following termination. Animus may
be inferred from circumstantial evidence, while unlawful mo-
tivation may be inferred from the timing of an employer’s
action. Another factor from which unlawful motivation may
be inferred is the pretextual nature of an employer’s asserted
reasons for his actions. See Bardaville Electric, 309 NLRB
337 (1992). Once General Counsel has met the burden of es-
tablishing a prima facie case of discharge or other discrimi-
nation, the burden then shifts to the employer to show as an
affirmative defense that the employee would have been dis-
charged or laid off regardless of protected activity. See In-
Terminal Services, 309 NLRB 23 (1992).
I continue to hold, for reasons originally given, that
Burke’s activities were not concertedly protected in nature.
However, assuming them to be so, I do not believe they re-
sulted in being a motivating factor in Respondent’s choice of
her for termination. The settled and commonly telling indica-
tors of employer hostility, or pretext of reasons, given are not
established by the evidence or fairly inferable. The most ap-
propriate term for Zuck’s treatment of the maternity leave
subject would be insensitive; an essentially mean attitude, but
one far short of hostile in this statutory sense. Uttering a pet-
ulant thought about ‘‘aggrava[tion]’’ need mean nothing
more than Zuck’s short-tempered irritation or annoyance with
distraction, given all circumstances of this case. The Board
has commended a reviewing of ‘‘the larger context’’ when
provocative remarks touching on protected activity have been
made. Cf. Desert Construction, 308 NLRB 923 (1992). As
to pretext notions, the evidence sufficiently shows a careful
and orderly look at business finances, a determination that
cost cutting was essential and a not startling choice of well
compensated Burke from among the clerical group as to
which other poignant considerations pertained. As to the fac-
tor of timing, Burke’s termination was chosen on the heels
of Walker’s increasingly persistent hopes, yet measurably
more distant from when the subject had first arisen around
first of the year. I thus hold that Burke’s involvement, lim-
ited and fading as it was, did not constitute a ‘‘motivating
factor’’ in her termination as administered by Zuck. Further,
and assuming it did so motivate Zuck, I hold that the evi-
dence advanced by Respondent is sufficient to meet the em-
ployer burden of the Wright Line framework that she would,
even that event, have been the employee selected for layoff.
The sufficiency I find here is also rooted in the fullness of
CPA Page’s involvement, the authenticity of financial trends
as shown from fair depictions in revenue and costs, plus the
imparting of expectable business judgment to counteract
what was so relentlessly likely to occur as future operations
continued in a new economic climate.
Accordingly, I hold as an overall matter under Wright Line
that General Counsel’s allegation of a violation under Sec-
tion 8(a)(3) of the Act has not been supported by adequate
proof in terms of controlling Board doctrine.
381BOESE HILBURN ELECTRIC SERVICE CO.
As to the allegedly independent violations of the Act, I
have set forth in credibility evaluations and findings of fact
above that neither of Zuck’s vulgar utterances on March 1
constituted a prohibition against protected concerted activi-
ties, nor an informative telling that an unexpected termi-
nation from employment then being rendered was based on,
or because of, any protected concerted activities. Whether
Zuck’s behavior during the termination episode is labeled
curt, gruff, offensive, or demeaning, the fundamental ques-
tion is whether it was unlawful, which I find not to be the
case.
[Recommended Order for dismissal omitted from publica-
tion.]