Carrier Transcold Division

National Labor Relations Board - Board Decisions

May 15, 2000

331 N.L.R.B. 126 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
Carrier Transicold Division of Carrier Corporation,
a wholly owned subsidiary of United Technolo-
gies Corporation and Gary Gresham. Cases 10–
CA–29246 and 10–CA–29437
May 15, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On January 16, 1997, Administrative Law Judge Philip
P. McLeod issued the attached bench decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed cross-exceptions and an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Lesley A. Troope, for the General Counsel.
A. McArthur Irvin, Esq. (Irvin, Stanford, & Kessler), of Atlanta,
Georgia, for the Respondent.
Gary Gresham, pro se, of Athens, Georgia.
BENCH DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Athens, Georgia, on December 4–6, 1996. The case
originated from charges filed by Gary Gresham against Carrier
Transicold Division of Carrier Corporation, a wholly owned
subsidiary of United Technologies Corporation (Respondent).
On August 23, 1996, an order consolidating cases, complaint,
and notice of hearing was issued. The complaint alleges that
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act) by issuing a suspension, issuing a warn-
ing, laying off, and subsequently discharging Gary Gresham for
engaging in concerted activities with other employees.
In its answer to the consolidated complaint, Respondent ad-
mitted certain allegations, but denied having engaged in any
conduct which would constitute an unfair labor practice within
the meaning of the Act.

1 In adopting the judge’s finding that the Respondent’s April 8, 1996,
warning to, and suspension of, Charging Party Gary Gresham did not
violate Sec. 8(a)(1) of the Act, we find it unnecessary to rely on the
judge’s finding that Gresham’s conduct on April 3, 1996, was not con-
certed activity. Instead, we rely solely on the judge’s findings that the
Respondent lawfully disciplined Gresham based on his interruption of a
meeting conducted by Manager Kathy Holen with other employees;
Gresham’s insistence on discussing immediately a subject unrelated to
the meeting; and his failure and refusal to acquiesce in Holen’s re-
peated directions to him that his concerns could be discussed later that
day at a more appropriate time. On the basis of these findings, it fol-
lows that even assuming Gresham’s conduct was concerted, it lost the
protection of the Act.
At the trial, all parties were represented and afforded full op-
portunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. Following oral argument, on De-
cember 6, I delivered a bench decision pursuant to Section
102.35 of the Board’s Rules and Regulations. In accordance
with Section 102.45 thereof, I certify the accuracy of, and at-
tach hereto as “Appendix A,” the pertinent portion of the trial
transcript, specifically page 494, line 4 through page 520, line
13. Minor errors may occur, but are insignificant.
For reasons expressed in my oral bench decision, I recom-
mend that the complaint be dismissed in its entirety. Accord-
ingly, I issue the following recommended1
ORDER
The complaint is dismissed in its entirety.

APPENDIX A
BENCH DECISION
494
The complaint in this matter alleges, inter alia, that Respon-
dent violated Section 8(a)(1) of the Act by issuing a five-day
suspension and written warning to Gary Gresham by issuing a
verbal warning to Gary Gresham and harassing Gresham by
telling him that he would be placed under more stringent work-
ing conditions by laying off Gresham and by discharging
Gresham because Gresham engaged in concerted activities with
other employees for the purposes of collective bargaining and
other mutual pay and protection.
In its answer to the consolidated complaint herein Respon-
dent admitted certain allegations including the filing of the
charges, the status of the Employer as an employer within the
meaning of the Act, and the status of certain individuals as
supervisors within the meaning of Section 2(11) of the Act.
Respondent denied having engaged in any conduct which
would constitute an unfair labor practice within the meaning of
the Act.
At the trial herein. all parties were represented and afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence.
495
Following the close of the trial counsel for the General
Counsel for Respondent and the Charging Party all argued this
case orally before me and I have considered their arguments in
reaching my decision herein.
On the entire record in this case and from my observation of
the witnesses, I make the following findings of fact, conclu-
sions of law, and enter the following recommended Order.
Respondent Carrier Transicold, Division of Carrier Corpora-
tion, a wholly owned subsidiary of United Technologies Corpo-
ration is engaged in business in Athens, Georgia, where it
manufactures transport refrigeration units.
Respondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
1 If no exceptions are filed as provided by §102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
331 NLRB No. 11
CARRIER CORP. 127
The record herein reflects that Gary Gresham was offered
employment by Respondent in October of 1987 at approxi-
mately the same time it began business here in Athens.
Gresham accepted that offer and began to work for Respondent
in a salaried nonexempt position as a clerical employee.
The record reflects that in the early years of his employment,
Gresham was considered an exemplary employee by Respon-
dent as well as by his fellow employees.
496
In September of 1988, Gresham was nominated for an award
as Employee of the Year, which he received at an awards ban-
quet on or about October 6, 1988.
The record reflects that in approximately 1992, Gresham be-
came what could be best described as a proactive employee. In
April of 1992, Gresham filed a charge with the Equal Employ-
ment Opportunity Commission, an exhibit here as General
Counsel’s Exhibit 10.
In March of 1993, the Equal Employment Opportunity
Commission issued a notice of right to sue letter to Gresham.
On or about April 16, 1993, Gresham filed a class action
lawsuit against the Respondent in conjunction with other em-
ployees alleging that Respondent had engaged in various acts
which discriminated against minority employees on the basis of
their race.
The record also reflects that in early 1995, Gresham com-
plained to the Human Resources Department regarding the
selection procedures for the Human Resources coordinator
position and how, at least in his opinion, minorities were ex-
cluded for consideration from that position.
On May 30, 1995, Gresham was issued discipline from Plan
Manager Jim Ferguson. That discipline is an issue—is in the
record as General Counsel’s Exhibit 4.
Addressing that discipline, I think it is important
497
that we as lawyers recognize that a great part of our responsibility
is to be able to discern the difference between distinctions which
have a difference and distinctions which do not have a difference.
In the first paragraph of the discipline issued on May 30,
1995. Ferguson chastises Gresham for continued actions to
instigate disruptions with other employees. The memo goes
onto say “time and time again you have taken it upon yourself
to crusade on behalf of anyone else who you can convince is
somehow being discriminated against by the company. You
have been coached and counseled on numerous occasions by
Gwen, Randall, Ron, and myself, that it is not your role to seek
out other employees and then make choices for them as to what
they need to do and then act as their third party representative
to management.”
The second paragraph of that memorandum reads “several
times in the past, Gary, you have used someone else’s situation
as a spring board for your own determined efforts to apparently
discredit, and disrupt management actions in running the busi-
ness. Some of these cases and I will omit the reference to the
individual cases ‘involve you actively pursuing employees and
pushing them to take legal action, even when they are perfectly
satisfied with the company’s position.’”
The third paragraph of that memorandum refers to an
498
incident with an employee named James Orange, which I will
discuss in further detail in a few moments.
The fourth paragraph of the memo describes Mr. Ferguson’s
belief and position that he has and will continue to treat em-
ployees in a fair, consistent and non-discriminating fashion.
The last two paragraphs of the memo. I believe, are impor-
tant particularly the next to last paragraph, which reads as fol-
lows: “However, let me remind you—it is not your role as sup-
port assistant to solicit others to create causes to disrupt the
business, nor is it your role to act as a third party representative
of any other employee. You have used poor judgment in the
past in this area, which has resulted in lost productivity and has
certainly been a hindrance to our desire of improving diversity
issues on site. These types of behavior will not continue to be
tolerated.
The last paragraph says that continued conduct of this nature
will result in Gresham’s termination.
My conclusions regarding this discipline are as follows: that
within it are contained discipline and threats of further disci-
pline which tend to interfere with employees’ Section 7 rights.
Also within it are matters which do not.
Specifically, with regard to the third paragraph
499
dealing with the James Orange situation. I am not making any
finding that paragraph in any way tends to interfere with Section 7
employee rights. In fact, the evidence in the record would suggest
that Mr. Gresham may well have overstepped his bounds in dealing
with other employees by suggesting to them—by perhaps misrep-
resenting himself and by suggesting to them that they go to him in
the morning rather than clock in.
I’m not making the finding that he did that because I don’t
think it’s necessary to do so. My point is that within any disci-
pline of this nature, there may well be justifiable discipline
which does not tend to interfere with Section. 7 rights, and
discipline which does tend to interfere with Section 7 rights.
That paragraph, I believe, tends to address something which in
all likelihood does not tend to interfere with Section 7 rights,
and I am not making a finding that it does.
However, with regard to the language which specifically rep-
rimands Gary Gresham for seeking out other employees and
encouraging them to take actions against the company because
of perceived discrimination, that tends to interfere with em-
ployees’ Section 7 rights, because the employees, under the
Act, have the right to communicate with one another about
perceived inequities, including discrimination, and only by
maintaining that right of
500
communication do employees have the opportunity to engage in
concerted activity.
The Board has long concerned itself with trying to properly
define just what protected concerted activity is and I have been
cited the case by both counsel for General Counsel and the
Respondent of Meyers Industries, which of course, is the semi-
nal case on this issue.
Certainly, the Respondent is right in pointing out that in
Meyers Industries, the Board grappled at some length with
exactly what protected concerted activity means.
I think it is important though to recognize that the Board has
always and in Meyers reiterates the position that for there to
ever be concerted activity, employees must have the right to
address one another one on one and concerted activity may well
include nothing more than one speaker and one listener. The
listener may choose not to pursue the activity, and that’s cer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128
tainly their right but if we eliminate the right of the speaker to
confront those employees about possible inequities, then we
have eliminated the possibility of concerted activity, and there-
fore, I find that paragraphs one and two of this memo and the
next to last paragraph tend to interfere with employees’ Section
7 rights within the meaning of the Act.
Mr. Ferguson’s response to that memo, which is an
501
exhibit as General Counsel’s Exhibit 5, shows that Mr. Gresham
fully intended to continue his proactive position. That was further
demonstrated by the complaint which Mr. Gresham filed on his
own behalf in July of 1995, alleging race discrimination on the part
of Respondent, even though that was an individual filing a charge
because he had not been grouped with others in an appropriate
class, the point to be taken from that is that Mr. Gresham was con-
tinuing to exemplify his proactive thinking and his willingness to
take action based on it.
Now, that brings us up to 1996. The record reflects that an
incident occurred on or about April 3, 1996, which is the inci-
dent that resulted in the discipline being imposed on Mr.
Gresham, which is the subject of one of the specific allegations
in the complaint. I note that because the earlier discipline in
1995 is not referenced in the complaint and would be time
barred by Section 10(b) of the Act, and we are not confronted
with that, but we are confronted with the specific discipline
issued on April 6, 1996, in General Counsel’s Exhibit 6.
We had a tremendous amount of testimony in this proceed-
ing with regard to that specific incident. I believe half the wit-
nesses who testified testified with regard to that.
Other than Mr. Gresham himself, I found all of the
502
witnesses who testified with regard to that to be wholly straight-
forward and credible.
The testimony of the employees, the testimony of all wit-
nesses taken as a whole, convinces me that that situation was
one in which two employees, for their own individual reasons
and not for any concerted purpose, approached management to
discuss the matter of the safety shoe truck vendor being on site.
The record shows that when Ms. Clarke and Mr. Gresham
approached Ms. Holen, Mr. Gresham knocked on the door and
said, excuse me, in order to address Ms. Holen. It is clear that
he was interrupting a conversation. It’s not clear that he had
any reason to believe he was interrupting a meeting or that
there was any significance to be drawn from that moment.
When Mr. Gresham interrupted the conversation, he asked
Ms. Holen about the presence of the safety shoe truck vendor at
the plant that day, and Ms. Holen responded in what was de-
scribed by more than one witness as a firm tone, that she was in
a meeting and that she would get back to Mr. Gresham on that
subject later in the day.
The record also reflects from the testimony of all the wit-
nesses, including Ms. Gloria Clarke and Ms. Sara Ann Smith
and Ms. Dorothy Cochran, that Mr. Gresham pursued the dis-
cussion with Ms. Holen. Ms. Clarke did not. Ms. Clarke
503
left the site of the conversation and reported to work.
I relied on that in part in making my finding that Clarke and
Gresham were acting individually with individual interests in
going to see Ms. Holen.
When Ms. Clarke heard that they were interrupting a meet-
ing and she would speak to Mr. Gresham about it later, Ms.
Clarke left and went to work. Mr. Gresham did not. He stayed
and pursued the conversation.
I credit Ms. Smith and Ms. Cochran that when the conversa-
tion began and when it continued, Mr. Gresham posed a ques-
tion to Ms. Holen, why the safety shoe truck was there that day
and why no one had told him sooner that it was coming. He
asked why he didn’t know that it was coming.
Whether it was Ms. Holen or Mr. Gresham who first began
to raise their voice really does not matter. I have no doubt that
it was Ms. Holen who first spoke with some firmness in telling
Mr. Gresham that she was in a meeting. Be that as it may, Mr.
Gresham stayed and pursued the conversation and repeated
several times, asking why it was that he had not been told the
truck was coming.
I credit Ms. Smith that as the conversation went on, the tone
of the conversation was such that it would begin to make a
reasonable person feel uncomfortable, as she testified she did.
I credit Ms. Smith that at the end of the conversation, Mr.
Gresham told Ms. Holen, “you can take that somewhere else,”
or words to that effect.
I credit Ms. Cochran more specifically that at the end of the
504
conversation, Mr. Gresham stated to Ms. Holen, “you can keep that
- you can just keep that because you don’t scare me.”
I also credit the testimony of the witnesses, Ms. Cochran and
Ms. Smith, that in making that statement, Mr. Gresham was
pointing his finger and shaking his hand at Ms. Holen and I find
the testimony credible that Mr. Gresham was in effect glaring at
Ms. Holen, as one witness described it, in a manner that if looks
could kill, Ms. Holen would be killed.
Following this incident, Mr. Gresham was issued discipline
on April 8, 1996, which is in evidence as General Counsel’s
Exhibit 6. Strike that. Actually, there’s no need to strike it. I
meant to refer to something else first and I will do that.
Before the discipline was issued, Ms. Holen, Ms. Smith and
Ms. Cochran all went and spoke to Human Resources Supervi-
sor, Cathy Dawson, regarding this incident. The record reflects
that Ms. Dawson conducted an investigation of the incident
before any discipline was issued.
Ms. Dawson testified credibly that she spoke to each indi-
vidual. I credit Ms. Dawson that when she spoke to Mr.
505
Gresham, she did not tell him then and there that she was going to
write him up, she does not have the authority to do that on her own.
I also credit Ms. Dawson that in the conversation with Mr.
Gresham, when she spoke to him about the incident, Mr. Gresham
in effect admitted pushing or pursuing the issue of the safety truck
with Ms. Holen, even though Ms. Holen instructed him that she
would get with him later and did not want to discuss the issue at
that time.
Specifically, I credit Ms. Dawson in the conversation with
Mr. Gresham, Mr. Gresham stated to her “I don’t know where
you come from, but from where I come from, when you need to
know, you need to know,” or words to that effect.
Following the investigation by Ms. Dawson, the disciplinary
memo was issued to Mr. Gresham on April 8, 1996, which I
have mentioned is in the record as General Counsel’s Exhibit 6.
The memo speaks for itself and I do not think it is necessary to
quote the memo at length. It describes the incident basically as
CARRIER CORP. 129
it was testified to and described by the witnesses herein, par-
ticularly Ms. Smith and Ms. Cochran.
I find that the discipline imposed on April 8, 1996 does not
in any way tend to interfere with employees’ Section 7 rights
within the meaning of the Act.
The memo addresses and disciplines Mr. Gresham for what
was in fact disruptive behavior, not at the beginning
506
of the conversation, but as the conversation continued and as Mr.
Gresham insisted on discussing that matter then and there with Ms.
Holen.
It appropriately reprimands Mr. Gresham for intimidating
and insubordinate behavior, particularly for pointing his finger
at Ms. Holen and stating I’m not afraid of you or words to that
effect.
I find it significant that General Counsel’s Exhibit 6 points
out that there is ample reason for discharging Mr. Gresham at
that time, but that Respondent chooses not to do so. In fact, the
memo states “management will continue to listen and respond
to legitimate concerns when voiced in an appropriate manner. I
challenge you, Gary, to present yourself in such a manner in the
future.”
Gresham, shortly thereafter, filed a charge in Case 10–CA–
29246, alleging that the discipline was imposed against him in
violation of Section 8(a)(1) of the Act. That charge is dated by
Mr. Gresham on April 10, 1996. It was filed, that is to say
docketed, in Region 10 of the National Labor Relations Board
on April 15, 1996. It was served by mail from Atlanta to Ath-
ens on Respondent by letter dated April 17, 1996. By letter
dated April 22, 1996, Mr. Irvin filed a notice of appearance in
that matter.
There is every reason to believe and it is a
507
reasonable inference to be drawn, which I do, that by April 22,
1996, Respondent had been served with a copy of the charge in
Case 10–CA–29246.
As I stated on the record at some point yesterday, I had a se-
rious concern that shortly after Mr. Gresham filed that charge,
certain actions were initiated toward Mr. Gresham. Based on
the credible testimony, I no longer have that concern.
The record shows that within days after the time of that
charge being filed, Mr. Settlemyer met with Mr. Gresham to
initiate a performance review. Mr. Randall Carr testified credi-
bly that—and Mr. Settlemyer did as well, that performance
review was initiated as a result of a tickler system which exists
in the Human Resources Department to notify a supervisor
when an annual performance review is needed.
Mr. Carr and Mr. Gresham both testified that Mr. Gresham
became a support assistant B, performing the duties that he was
performing at the time of his layoff, on or about mid-April to
late April of 1994, and the record also shows that while no
performance reviews were done on a regular basis of Mr.
Gresham or any other employees necessarily, that in early
1996, the Respondent began to re-emphasize, to re-instill, if
that’s a word, the importance of using and complying with the
performance
508
review procedures, which were supposed to have been followed for
some time at the Respondent’s facility.
There is no reason to believe, based on the record here, that
Respondent in early 1996 re-instituted and re-emphasized the
importance of annual performance reviews in any way, shape
or form because of Gary Gresham.
Indeed, in early 1996, the matter which arose in April con-
cerning the safety shoes, which is alleged as an 8(a)(1) in this
complaint, the record here strongly suggests that the importance
of the performance review system was being re-emphasized
because Respondent may well have some reason to face cut
back’s during 1996, and if it was going to determine who
should be cut back on any objective basis, it was important for
Respondent to have that performance review system up to date
and objective.
I am convinced now that it was simply coincidental. Gary
Gresham filed his charge with the Board in Case 10–CA–29246
just a few days before it was time for a performance review to
in fact be initiated by the Human Resources Department.
It was particularly sent to Mr. Settlemyer, whereupon Mr.
Settlemyer met with Mr. Gresham and asked Mr. Gresham to
sit down and prepare some document showing his duties and
the approximate time that he spends on each of those duties.
Mr. Gresham did that and that is in evidence as
509
Respondent’s Exhibit 1.
In the course of the discussions between Mr. Settlemyer and
Mr. Gresham, it came to Mr. Settlemyer’s attention that Mr.
Gresham was indeed behind in his work, that is to say the pri-
mary portion of his work, which was warranty data entry, and
that will be discussed in greater detail in a moment.
The record also shows that in preparation for the annual per-
formance review, Mr. Settlemyer obtained a printout of Mr.
Gresham’s timeliness and tardiness.
The record reflects that on or about April 24, Mr. Settlemyer
met with Mr. Gresham to initiate the performance review, and
that during those conversations, Mr. Settlemyer had an oppor-
tunity to observe Mr. Gresham actually performing his work
and to determine the approximate amount of time that it would
take to perform each of the units of his work, particularly the
data entry aspect.
Mr. Gresham does not deny that he was behind in his work.
Therefore, I have no reason to doubt or reject the substance of
Mr. Settlemyer’s memo to himself, which is in evidence as
Respondent’s Exhibit 3, particularly the second and third full
paragraphs, which describe the extent to which Mr. Gresham
was behind.
Specifically, with regard to credibility of the witnesses, I
want to point out that I definitely do not
510
credit Mr. Gresham, that he was so far behind in his data entry
work solely because of the five day suspension that was imposed
on him in early April as a result of his actions on or about April 2. I
find that suggestion ludicrous.
It’s totally illogical to believe that Mr. Gresham was five
weeks behind in any of the data entry when it took him a full
five weeks, from April 24 to June 3, to catch up.
I have some concern about certain of Mr. Settlemyer’s ac-
tions during the performance review. Specifically, I have a
concern about Mr. Settlemyer’s apparent over zealousness with
regard to timeliness. The evidence in the record strongly sug-
gests, in fact, I will say establishes, that for salaried employees,
including non-exempt salaried employees, there was a rather
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
lax procedure followed at the facility, that has been described in
the record as flex time.
The record establishes that flex time was administered in
such a way that individual employees could arrange with their
supervisor to come in late on one day and leave late or come in
early on one day and leave early, whether it be a few minutes or
an hour.
The record is also absolutely clear that before the perform-
ance review was initiated on or about April 19, when
511
Mr. Settlemyer requested the tardiness schedule of Mr. Gresham,
Mr. Settlemyer had never spoken to Mr. Gresham about being
tardy, even though Mr. Settlemyer had the opportunity to observe
Mr. Gresham coming in a few minutes late.
The record is quite clear that for the first time, that it was the
first time in the performance review in late April 1996 that Mr.
Settlemyer raised this issue with Mr. Gresham.
The record, however, does not support any conclusion that
this occurred as a result of Mr. Gresham’s protected concerted
activities, which dated back as early as 1992.
It is difficult to say what if anything might have been estab-
lished between Mr. Settlemyer and Mr. Gresham, if in fact in
the performance review, it had not developed that Mr. Gresham
was so far behind in his work.
There is every reason to believe that issue became a matter
of concern in that performance review. That “issue” meaning
tardiness became an issue of concern in that performance re-
view because it was ascertained that Mr. Gresham was in fact
so far behind in his work.
I said a moment ago that it was determined in this perform-
ance review Mr. Gresham was approximately five weeks be-
hind and I misspoke. In fact, it was determined that Mr.
Gresham was approximately 7.5 weeks behind in his work.
512
It was during the five-week period following this that he
caught up most of what it was that he was behind on.
With reference to the performance summary itself, which is
in evidence as General Counsel’s Exhibit 8, it essentially
documents what I have already described as having taken place
between Mr. Gresham and Mr. Settlemyer during the perform-
ance review.
However, I want to specifically address one of the comments
in that performance summary, in the box in the lower right-
hand portion of the first page, there is a box entitled “improve-
ment opportunities.”
The first two of those, obviously, refer specifically to Mr.
Gresham’s on the job performance and getting his work done.
The third one reads “needs to learn to temper his confrontations
with management.”
It may be argued that refers to Mr. Gresham’s protected con-
certed activities, and that is one possibility. However, it may
also be argued that refers to the incident in April 1996 in which
the Respondent issued discipline, which I have found to be
legitimate and not having been engaged in for any unlawful
reasons, for Mr. Gresham’s insubordinate and confrontational
discussion with Ms. Holen.
That specific sentence as it reads can at least be
513
said to be ambiguous and not clearly referencing Mr. Gresham’s
protected concerted activities. Moreover, I find it more logical to
conclude that it refers to the more recent event of April 1996, spe-
cifically, Mr. Gresham’s confrontation with Ms. Holen.
That then brings us to the time of the layoff. The record re-
flects that there were discussions among and between employ-
ees and management throughout 1996 about the possibility of
there being a layoff, a layoff which might include salaried em-
ployees.
Mr. Ferguson and Mr. Carr spoke more than once about the
fact that it appeared a layoff was going to be likely and that if
one did occur, it would, in all likelihood, include salaried non-
exempt employees.
The record supports a conclusion that sometime in mid to
late May of 1996, a specific decision was made that there
would be a layoff and that it would include salaried non-exempt
employees. I say that because Respondent’s Exhibit No. 7 is a
memorandum dated May 23, 1996 from Mr. Randall Carr to
several individuals, which states “Let’s remember, the process
by which salaried employees will be selected for any economic
reduction in force will be their demonstrated competence, cur-
rent performance/contribution, and the current needs of the
business.”
On or about June 3, 1996, Mr. Settlemyer met with Mr.
514
Gresham and informed him there would be a layoff effective July 1
and that it would include Mr. Gresham’s position.
Counsel for General Counsel alleges that Mr. Gresham was
selected for this layoff because of his protected concerted ac-
tivities, which, of course, she contends were not just the activi-
ties of 1992 to 1995 but also included the incident in early
April 1996.
I, of course, have found that incident was not protected con-
certed activity.
I do find, however, that the incident in April 1996 played a
significant part in Respondent’s decision to lay off Gary
Gresham and to retain instead the other support assistants.
Counsel for General Counsel does not dispute the economic
need for a layoff in June of 1996. That’s not an issue in the
case. The record amply supports a conclusion that a layoff was
warranted.
Counsel for General Counsel’s position is not even necessar-
ily that salaried non-exempt employees were targeted in order
to get to Gresham. The record testimony of Mr. Ferguson and
Mr. Carr establishes that Respondent had good business reasons
for including salaried non-exempt employees in the layoff,
obviously, to the extent that more and more rank and file em-
ployees are laid off, there comes a point where there is good
reason to lay off as well what
515
we ordinarily think of as support personnel in any business.
None of that necessarily answers counsel for General Coun-
sel’s allegation, however. It could well be that there was reason
to eliminated a salaried non-exempt position but nevertheless,
Respondent may very well have been able to retain Mr.
Gresham. The mere elimination of his position does not answer
counsel for General Counsel’s allegation either.
That having been said, let me also point out that it is counsel
for General Counsel’s burden to show that Mr. Gresham’s pro-
tected concerted activity was a motivating factor in the decision
to terminate/lay off Mr. Gresham. Then and only then does the
burden shift to Respondent under the Wright Line decision to
show that Mr. Gresham would have been laid off, would have
CARRIER CORP. 131
been the person chosen to be laid off, even without having en-
gaged in protected concerted activity.
Having considered the record as a whole, I find that it does
not support a conclusion of Mr. Gresham’s protected concerted
activity was a motivating factor in the decision to lay him off.
That is to say the protected concerted activity of 1992 through
1995.
I do find that what occurred in April of 1996 was a motivat-
ing factor. If that is found by the Board to be
516
protected concerted activity, I would reach a different result in this
case. However, obviously, I have found it is not protected con-
certed activity, what occurred in April 1996.
The layoff resulted in—in the layoff, three individuals were
targeted for their positions to be eliminated, and the record
suggests, the record, in fact, supports a conclusion that Mr.
Gresham was treated different than at least one other of the
other two whose positions were eliminated.
This case is troubling and I am not going to pretend other-
wise.
In the layoff, while supposedly three positions were elimi-
nated, one of those individuals was offered the opportunity to
assume other duties and in fact, to not be terminated. Mr.
Gresham was not given that opportunity, although there were
clearly duties available which Mr. Gresham could have per-
formed, and those include the duties which I mentioned to Re-
spondent during its closing remarks yesterday, the duties of Ms.
Rowland.
There is absolutely no reason to believe that Mr. Gresham
could not have performed those duties and had he been as-
signed or offered those duties as a temporary employee, as Ms.
Rowland was, he would have accomplished Respondent’s pur-
pose in reducing its head count, because as
517
we were told, temporary employees don’t count.
We don’t know whether Mr. Gresham would have accepted
that. The point is Respondent didn’t offer it to him, as it did to
another employee.
I am also aware of the fact that the third employee was not
offered the opportunity to stay and that is part of what makes
the case troubling, because while one of the individuals was
clearly treated differently than Mr. Gresham, the third one was
not.
It is not as if Mr. Gresham was treated disparately from all of
the others who were laid off. He was treated the same as one
and differently from another.
I have considered at length whether or not Mr. Gresham was
treated differently, in not being offered other duties, because of
his protected concerted activity, and I have come to the conclu-
sion that the record does not support either an inference or legal
conclusion that he was not offered those other duties because of
his protected concerted activities that I have found to be pro-
tected. That is to say the activities of 1992 to 1995. Rather, I
believe the record supports a conclusion that he was not offered
other duties because of the incident in early April involving Ms.
Holen and because of his performance review, which showed
quite clearly that Mr. Gresham was considerably behind in his
work, and for those reasons,
518
Respondent had good reason to not offer Mr. Gresham other duties.
I am assuming that counsel for General Counsel will take
exceptions to my ultimate decision in this case, and therefore, I
want to make it very clear that if it is found by the Board that
Mr. Gresham’s activities vis-à-vis Ms. Holen in April of 1996
were indeed protected concerted activity, I am specifically find-
ing that those activities did play a motivating role in the deci-
sion to not offer him other duties at the time of the layoff in
June 1996.
I would like to add that in my analysis, in reaching the con-
clusion that the record does not support a conclusion of Mr.
Gresham’s protected concerted activities which I have found to
be protected concerted activities, played in any role in Respon-
dent’s decision to elect him for layoff, I have taken into consid-
eration the fact that Respondent had ample opportunity to get
rid of Mr. Gresham if it had chosen to do so, and I’m referenc-
ing specifically the incident in April 1996, where I have found
Mr. Gresham was insubordinate to Ms. Holen.
With reference to the decision to select Mr. Gresham to in
fact be terminated, I believe it is important to note for the re-
cord Mr. Ferguson’s credible testimony yesterday that Kim
Hayes, Linda Morgan, Peggy Stamey and Linda Mealler do not
come under Mr. Ferguson’s area of authority
519
and Mr. Gresham could not have been moved, at least by Mr.
Ferguson, into any of those positions.
The record reflects that Mr. Gresham could have been con-
sidered and in fact was considered for at least the position that
was held by Ms. Norma Stafford.
I found Mr. Carr’s testimony credible that with regard to
considering that possibility, it was concluded Mr. Ferguson
could not realistically replace Ms. Stafford because Ms. Staf-
ford was in a role in an area of the facility which was already
under staffed in terms of the function she performed. That de-
partment had requested the authority to hire additional people
and that had been denied. Mr. Carr testified credibly that if
anything, Ms. Stafford was over worked and as a result, it
would not be reasonable from a business perspective to replace
Ms. Stafford with Mr. Gresham.
That is not to say, however, there were not duties available
that Mr. Gresham could perform, and I’ve noted that, particu-
larly the duties that were being performed by Vicki Rowland.
In conclusion, therefore, I find the record does not support
counsel for General Counsel’s allegations in the complaint that
Respondent issued a five-day suspension and written warning
to Gresham on or about April 8, 1996 in violation of the Act.
The record does not support a
520
conclusion that Respondent on or about April 24, 1996 issued a
verbal warning to Gresham and/or harassed Gresham by telling
him that he would be placed under more stringent working condi-
tions due to Mr. Gresham’s concerted protected activities.
The record does not support a conclusion that on or about
June 4, 1996, Respondent laid off Gresham and on or about
June 28, 1996, discharged Gresham, due to Gresham’s con-
certed activities with other employees for the purposes of col-
lective bargaining and other mutual aid and protection.
I will therefore recommend that the complaint be dismissed
in its entirety.