Clark & Hinojosa

National Labor Relations Board - Board Decisions

Jan 31, 1980

247 N.L.R.B. 710 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark & Hinojosa, Attorneys at Law, A Professional
Corporation and Judy Gordon. Case 23-CA-7470
January 31, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 27, 1979, Administrative Law Judge
Maurice M. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Clark & Hinojosa, Attor-
neys at Law, A Professional Corporation, Houston,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
' Respondent promised to pay terminated employee Judy Gordon an
additional one-half month's salary, but subsequently refused to give Gordon
the post-termination pay when she threatened to complain to the Board about
her discharge. In these circumstances, there is no question that Respondent
violated Sec. 8(aX4) and (I) of the Act, inasmuch as it treated Gordon
differently than it would have because of her expressed intent to seek redress
from the Board. In so finding, we reject as wholly unwarranted and
unfounded all of the statements contained in that portion of the Administra-
tive Law Judge's Decision captioned "D. Postscript." See General Services
Inc.. 229 NLRB 940 (1977); Manuel San Juan Company. Inc., Common-
wealth Insurance Company and United Adjustment Bureau. Inc.. 211 NLRB
812, 818 (1974): N.L.R.B. v. Robert Scrivener, d/b/a AA Electric Company.
405 U.S. 117 (1972).
:The Administrative Law Judge properly ordered that the sum of money to
be paid Judy Gordon by Respondent include interest. but he inadvertently
failed to so note in his recommended "Notice to Employees." Accordingly, we
have amended the notice to correct this omission.
247 NLRB No. 89
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has
been determined that we violated the law by commit-
ting an unfair labor practice. In order to remedy such
conduct, we are being required to post this notice. We
intend to comply with this requirement, and to abide
by the following commitments:
WE WILL NOT deny previously promised post-
termination pay for any employees terminated,
because they may have declared their intention to
seek redress for some grievance through National
Labor Relations Board procedures, or because
they may have filed Board charges or given
testimony under the National Labor Relations
Act, as amended.
WE WILL. NOT interfere with, restrain, or
coerce our employees in any like or related
manner, with respect to their exercise of rights
which Section 7 of the Act guarantees.
WE WILL make whole Judy Gordon for the
deprivation which she suffered when she was
denied post-termination pay which had previous-
ly been promised her, by paying her the sum of
money which she had been promised she would
receive, with interest.
CLARK & HINOJOSA, ATTORNEYS AT LAW,
A PROFESSIONAL CORPORATION
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon
a charge and amended charge filed on April 4 and May 2,
1979, respectively, and duly served, the General Counsel of
the National Labor Relations Board issued a complaint and
notice of hearing, dated May 7, 1979, which was duly served
upon Clark and Hinojosa, Attorneys at Law, A Professional
Corporation, designated as Respondent within this Decision.
Respondent was charged therein with unfair labor practices
within the meaning of Section 8(a)(4) and (1) of the National
Labor Relations Act, as amended. (61 Stat. 136, 73 Stat. 519,
88 Stat. 395.) Within its answer, duly filed, Respondent
conceded its status as a professional corporation and
conceded the March 29, 1979, termination of Judy Gordon,
Complainant herein. Further, however, Respondent chal-
lenged the Board's jurisdiction on constitutional grounds;
denied its participation in commerce; questioned Complain-
ant's standing to file Board charges; charged her with bad
faith and false statements with respect to charges filed;
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CLARK & HINOJOSA
claimed that her course of conduct, prior to filing Board
charges--considered in context-should warrant a determi-
nation that her decision to file such charges was both
tortious and violative of the State of Texas criminal code;
contended that-should the General Counsel's complaint be
found meritorious-the Board's conceivable remedial direc-
tives would violate various constitutional restraints on
Federal governmental powers; and, finally, denied the
commission of unfair labor practices.
Pursuant to notice, a hearing with respect to this matter
was held on June 12, 1979, in Houston, Texas, before me.
The General Counsel's representatives presented his case;
Respondent's shareholder professionals, attorneys James R.
Clark and Federico G. Hinjosa, Jr., pro sese, presented
Respondent's defense. Each party was afforded a full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence with respect to perti-
nent matters. Since the hearing's close, the General Coun-
sel's representatives have filed a brief; Respondent's counsel
have likewise filed a brief, together with proposed findings of
fact and conclusions of law. These submissions have been
duly considered.
FINDINGS OF FACT
Upon the complete testimonial record herein, documenta-
ry evidence received, and my observation of the witnesses, I
make the following findings of fact:
I. JURISDICTION
A. Respondent's Constitutional Contentions
Before this case was heard, Respondent filed a formal
motion to dismiss, contending that this Board lacks jurisdic-
tion to consider the matter because the General Counsel's
complaint presents no claims arising under the Constitution,
Federal laws, or treaties negotiated consistently therewith
and because the General Counsel's claims do not arise under
Federal statutes regulating commerce. Further, within its
formal answer, Respondent contends that this Board lacks
jurisdiction because the conceivable controversy described
within the General Counsel's complaint falls within the
exclusive jurisdiction of the State of Texas, pursuant to the
tenth amendment of the Constitution and because no "actual
controversy between the parties" subject to resolution
through the Federal Government's judicial power, constitu-
tionally created and statutorily defined, can be found herein.
These contentions, clearly, deserve summary rejection.
This Board functions pursuant to a primary Federal
statute, 61 Stat. 136, whose constitutionality has, long since,
been determined. N.L.R.B. v. Jones and Laughlin Steel
Corporation, 301 U.S. 1 (1937). See, likewise, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 25, A.FL. v. W L.
Mead, Inc., 230 F.2d 576, 579-580, (Ist Cir. 1956), petition
for cert. dismissed 352 U.S. 802. Therein, the First Circuit
found the basic constitutionality of the Labor Management
Relations Act (1947), as an exercise of the commerce power
of Congress beyond question. Respondent's further conten-
tion-that the controversy described in the General Coun-
sel's complaint should, nevertheless, be considered exclusive-
ly subject to determination consistently with state law-has,
likewise, been judicially rejected. See San Diego Building
Trades Council v. Garmon, 359 U.S. 236 (1959), in this
connection. Finally, the General Counsel's contention,
herein, that Respondent's course of conduct-described
within his complaint-flouted specific provisions within a
constitutional Federal statute, drafted to proscribe defined
unfair labor practices, clearly raises a genuine "controversy"
which this Board, and Federal courts, have been properly
empowered to determine.
B. Respondent's Participation in Commerce
When, by statute, Congress sought to proscribe unfair
labor practices by "employers" whose business activities
"affected" commerce, that body clearly did not exceed its
constitutional power to regulate commerce among the
several States. Polish National Alliance of the United States
of North America v. N.L.R.B., 322 U.S. 643, 647 (1944).
Indeed, the National Labor Relations Act, on its face,
reflects the congressional purpose to grant this Board
whatever powers it may constitutionally grant to regulate
labor relations through the prevention or control of specified
conduct-unfair labor practices-which have provoked or
might provoke disturbances likely to affect commerce.
Commerce, of course, may be "affected" whether its volume,
relative to proscribed conduct, be great or small. And the
Supreme Court has heretofore perceived no basis for
concluding that Congress intended to make the statute's
applicability dependent upon any particular volume of
commerce, which may have been affected beyond that level
which courts would consider de minimis for jurisdictional
purposes. N.L R.B. v. Fainblatr, et al., 306 U.S. 601 (1939).
There are many commercial activities pursued throughout
the country, which-despite the fact that they may be
conducted by relatively small enterprises-contribute sub-
stantially, when considered collectively, to the volume of
interstate commerce. This Board's statutory jurisdiction,
therefore, cannot properly be considered dependent upon
some predefined volume of interstate commerce which may
have been affected. See United States v. Women's Sportswear
Mfg. Ass'n, 336 U.S. 460 (1949), in this connection. Rather,
it depends upon the presence of a relationship- between a
particular employer and his employees on the one hand and
commerce, statutorily defined, on the other hand-suffi-
ciently significant to warrant a determination that unfair
labor practices have led, or would tend to lead, to labor
disputes "burdening or obstructing" such commerce or the
free flow of commerce.
These considerations provide the basic conceptual frame-
work, with reference to which the General Counsel's
contention-that this Board's jurisdiction may properly be
asserted herein-should be determined. Respondent's degree
of participation in commerce, therefore, must now be
weighed.
Respondent, Clark and Hinojosa, Attorneys at Law,
constitutes a professional corporation organized pursuant to
Texas law. Functioning through its principal attorney
shareholders, properly licensed to practice law, Respondent
provides legal services to members of the public with a
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Houston, Texas, principal office and place of business. The
firm commenced professional activity on January 25, 1979,
with two principal corporate officers and shareholder
members, James R. Clark and Federico G. Hinjosa, Jr., two
law clerks, and-so far as the record shows-two secretar-
ies.
Clark and Hinojosa, their law clerks, and secretaries had,
previously, been associated with a Houston, Texas, profes-
sional corporation, Clark, Lowes, and Carrithers, which had
likewise provided legal services. This firm had, sometime
prior to January 25, 1979, ceased to function, under
circumstances which have not been detailed for the present
record; Lowes and Carrithers had withdrawn from the firm.
Clark and Hinojosa had, thereupon, formed their present
professional corporation, Respondent herein. All the corpo-
rate "stock" of Clark, Lowes, and Carrithers has been
transferred to James R. Clark; Respondent has taken over
both the assets and liabilities of its corporate predecessor. At
present, I find, Clark, Lowes and Carrithers is no longer
actively pursuing the practice of law; however, that firm's
current corporate status-so far as the record shows-
cannot be definitively determined.
When this case was heard, the General Counsel's repre-
sentatives and Respondent's counsel stipulated that since its
January 25, 1979, formation the professional corporation has
purchased and will purchase "items" which, on a projected
basis for the calendar year designated, will cost Respondent
$7,500, at least. The figure cited represents the cost of
various "items" which originate outside the State of Texas;
these include law books published by Matthew Bender and
Bancroft & Whitney, typewriter ribbons from Arkansas, and
IBM typewriters manufactured outside the State, though
purchased from local concerns. The figure cited compasses
$2,850, which represents lease and service fees paid and
payable, on a projected basis for the complete calendar year
designated, for an IBM copier which Respondent utilizes
pursuant to lease arrangements. The parties have stipulated
further that during 1979 specifically Respondent has re-
ceived payments for services rendered and will receive
payments which, on a projected basis for the calendar year
designated, will produce approximately $160,000 gross
revenue.
Respondent declares, nevertheless, that it conducts no
"business" operations; therefore, it denies the General
Counsel's contention that it should be considered a statutory
"employer engaged in commerce" subject to the Board's
jurisdiction. Specifically, Respondent claims "professional
corporation" status, contending that since its principal
attorney shareholders practice law they pursue a profession,
not a trade. Currently, these contentions possess no persua-
sive thrust; whatever weight they may once have carried has
recently been dissipated. Goldfarb v. Virginia State Bar, 421
U.S. 773 (1975). The Supreme Court's decision therein
rejected contentions that the practice of law, deemed a
learned profession, should not be considered "trade or
commerce" within the meaning of the Sherman Act. The
Court held, rather, that legal services-though performed
wholly intrastate-play an important part in commercial
intercourse, that they cannot realistically be considered
merely "incidental" with respect to commerce or essentially
local in nature, and that under certain circumstances
practices chargeable to lawyers, indeed, may restrain com-
merce. Consistent with Goldfarb v. Virginia State Bar, this
Board now holds that-since legal services provided by law
firms, as a class, do have a substantial impact upon interstate
commerce-they may properly be considered subject to
agency jurisdiction. Foley, Hoag & Eliot, 229 NLRB 456
(1977). That determination clearly, must be considered
dispositive of Respondent's contrary contention herein.
This Board, with judicial concurrence, distinguishes be-
tween its legal, statutorily grounded jurisdiction and those
discretionary jurisdictional standards pursuant to which
agency formulated self-limitations have been imposed, calcu-
lated to confine its proscriptive and remedial reach. Hollow
Tree Lumber Company, 91 NLRB 635, 639 (1950). In both
cases, however, dollar amount findings, which define the
value of the particular goods and services whose "flow" with
respect to commerce may have been affected, determine
whether the Board's statutory or discretionary jurisdiction
has been demonstrated.
Showings probative of the Board's legal, statutorily
grounded jurisdiction have been considered made whenever
the dollar value of the goods or services which may have
been "affected" by claimed unfair labor practices exceeds de
minimis limitations. N.L.R.B. v. Fainblatt, supra. However,
within legal contemplation the de minimis concept "has
always been taken to mean trifles" concerned with but a few
dollars or less. N.L.R.B. v. Suburban Lumber Company, 121
F.2d 829 (3d Cir. 1941). Herein, clearly, this Board's legal,
statutorily grounded jurisdictional requirement has been
satisfied. Respondent's direct out-of-state purchases together
with the firm's conceded "indirect" purchases in commerce
within a 2-month period, when projected for a 12-month
period, will reach $7,500 minimally.
The Board, when determining whether its jurisdictional
standards-legal or discretionary-have been satisfied, cus-
tomarily projects "available" data, with respect to businesses
which have been operating for less than a year. Northwest
Smorgasbord, Inc., 163 NLRB 425 (1967), and fn. 4 cases,
cited therein. Compare Carpenter Baking Company, Inc.,
112 NLRB 288, fn. I (1955).
Such purchases in commerce, statutorily defined, clearly
reflect Respondent's more than de minimis involvement.
Compare Asheville- Whitney Nursing Home and Jim H.
Pierce, 208 NLRB 341 (1974); Arlington Ridge Development
Co. et. al, 203 NLRB 787, 789 (1973), in this connection.
This Board's legal jurisdiction, I find, has been-despite
Respondent's contrary contention-sufficiently demon-
strated.
C. This Board's Discretionary Standards
When this Board decided that law firms would be
considered subject to its jurisdiction, commitments were
made that some "appropriate standard" would be deter-
mined subsequently. Foley, Hoag and Eliot, supra. That
discretionary jurisdictional standard has since been defined.
The Camden Regional Legal Services, Inc., 231 NLRB 224
(1977). The Board concluded therein that:
it will effectuate the policies of the Act to limit our
assertion of jurisdiction over law firms in general . . .
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CLARK & HINOJOSA
to those that receive at least $250,000 in gross annual
revenues.
Further, the Board noted that such a discretionary limita-
tion upon its exercise of jurisdiction would preclude its
"involvement" with a multitude of cases whose total
economic significance would be slight.
The record herein reflects a stipulation that Respondent's
law practice has thus far produced payments for services
which, projected for slightly less than a 12-month period,
would produce approximately $160,000 in gross revenue,
merely. Clearly Respondent's professional activities-pro-
jected for a presumptively representative period-will not
produce revenue sufficient to satisfy this Board's newly
defined discretionary jurisdictional standard.
Herein, however, Respondent stands charged with the
commission of Section 8(a)4) and (1) unfair labor practices.
And this Board has held, with judicial concurrence, that
whenever a respondent has violated Section 8(a)(4) of the
statute appropriately proscriptive and remedial directives
may be promulgated-based upon record showings suffi-
cient to demonstrate the presence of legal jurisdiction
beyond de minimis limits-though relevant discretionary
standards may not have been satisfied. Robert Scrivener,
d/b/a AA Electric Co., 177 NLRB 504 (1969), aff'd. 405
U.S. 117 (1972), enfd. on remand 80 LRRM 3055 68 LC
Para. 12, 733 (8th Cir. 1972). See, likewise, Pickle Bill's,
Inc., 224 NLRB 413, 414-415 (1976). Compare Modern
Linen d Laundry Service, Inc., 110 NLRB 1305 (1955),
reversed and remanded sub nom. Eugen Pedersen v.
N.L.R.B., 234 F.2d 417 (2d Cir. 1956), decision on remand
116 NLRB 1974 (1957), in this connection. Should determi-
nations finally be found warranted, therefore, that Respon-
dent's treatment of Judy Gordon, Complainant herein, did
transgress permissible statutory limits; thus reflecting the
firm's violation of Section 8(a)(4), conjoined with a closely
related Section 8(a)(1) violation, the propriety of formal
Board proceedings calculated to redress such violations
found could not properly be gainsaid.
With determinations regarding the propriety of the
General Counsel's jurisdictional contentions thus reserved--
pending some disposition of those factual and legal questions
which the record herein presents-consideration must neces-
sarily turn toward such questions, which have been raised
with regard to his complaint's substantive merits.
11. THE UNFAIR LABOR PRACTICES CHARGED
A. Issues
This case, though derived from a relatively simple,
straightforward factual situation, presents some subtle legal
and policy questions. Those questions have been competent-
ly litigated. For present purposes, they may be summarized
generally as follows:
1. Whether Respondent violated Section 8(aX4) and (1) of
the statute by withdrawing a gratuitous, post-termination,
promise to provide Judy Gordon with "severance" pay, and
by subsequently withholding such promised compensation,
because she had declared herself determined to seek redress
through Board processes, following her termination.
2. Whether Respondent violated Section 8(a)(1) of the
statute, likewise, by threatening to blacklist Judy Gordon,
should she pursue her declared purpose to seek redress,
following her termination, through Board processes.
3. Whether Respondent's purported threat to blacklist
Judy Gordon should, standing alone, be considered a
separate Section 8(a)(4) violation, if Respondent's decision
to withhold promised "severance" pay cannot be found,
concurrently, violative of that statutory provision.
4. Whether this Board's remedial jurisdiction ought to be
exercised-despite record stipulations which reveal that
Respondent's projected gross revenues for a representative
period would not satisfy discretionary jurisdictional stan-
dards-should nothing more than Section 8(a)(1) violations,
reasonably calculated to interfere with the statutory right of
employees to seek redress for perceived wrongs through
Board procedures, be found herein.
The General Counsel contends that James R. Clark's
conceded withdrawal of his post-termination promise to
provide Complainant with "severance" pay, together with
his threat to blacklist her should be considered, within this
context, Section 8(a)(4) and (1) violations. Further, he
contends that this Board's jurisdiction should be exercised
herein even if nothing more than Section 8(a)(l) violations,
chargeable to Respondent, can properly be found. Respon-
dent contends, contrariwise, that no unfair labor practice
violation, whatsoever, can properly be found herein: First,
because Judy Gordon had lost her statutorily protected
"employee" status by virtue of her termination under
circumstances which neither derived from, nor involved,
conduct statutorily proscribed before the situation developed
wherein Respondent purportedly violated the law; second,
because complainant's declaration that she proposed to seek
redress for her supposedly "improper" termination, through
Board processes, did not involve protected "concerted"
activity and should not be considered the sort of conduct
which Section 8(a)(4) reasonably construed, would protect
from purportedly discriminatory reprisals; third, because
James R. Clark's conceded withdrawal of his gratuitous
executory promise to provide Gordon with "severance" pay
cannot legitimately be considered-upon this record-statu-
torily proscribed discrimination; fourth. because Clark's
purported threat to blacklist Complainant herein-should it
be found proven-might conceivably constitute a Section
8(a)(l) violation, but cannot be considered within Section
8(a)(4)'s proscriptive reach, since the General Counsel has
not shown that the threat was subsequently pursued; fifth,
because without proof that some Section 8(aX4) violation
has been committed no case-cognizable under this Board's
self-limiting discretionary jurisdictional standards-has been
made with respect to Respondent's challenged conduct. For
these, plus other reasons, Respondent seeks a dismissal
herein.
B. Facts
1. Background
Complainant had been hired on March 20, 1978, by Clark,
Lowes, and Carrithers, for secretarial work. Her starting
salary had been $625 monthly. Three months later her salary
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been raised to 700 monthly; on September 15, 1978,
she had received a further $100 raise. (According to Gordon,
her fringe benefits had compassed hospitalization insurance,
with premiums paid, quarterly, by the law firm, plus eight
paid holidays, merely.)
When Respondent corporation was formed Complainant
had continued in Respondent's service; her $800 monthly
salary had been continued without change.
On February 16, 1979, Gordon ceased work; directly
thereafter she was hospitalized for major surgery. The
record, herein, suggests a tacit consensus-shared by Com-
plainant, Clark, and Hinojosa, respectively-that she would
presumably be sufficiently recovered within 6 weeks, to
resume work.
While hospitalized and convalescent, Gordon continued
to receive her full salary, paid semimonthly. Whether these
payments derived from some voluntary commitment on
Respondent's part, or from Complainant's cumulative cred-
its for prospective vacation time, plus her credits for
"overtime" work previously performed, need not be deter-
mined herein.
On March 13, however, Gordon learned from her physi-
cian that she might not be sufficiently recovered from her
surgery to resume work on Monday, April 2, her previously
scheduled return date. Shortly thereafter, on March 15,
Complainant communicated with Hinojosa; she declared
that she wanted to give Respondent some advance notice
regarding the possibility that her doctor might not "release"
her for work. Hinojosa commented (so the record shows)
that with Gordon's prospective return date less than definite
Respondent might be confronted with a problem, which
might "possibly" dictate her termination.
Complainant testified that several days later she had a
conversation with the manager of her apartment complex.
With respect thereto Gordon recalled that:
I went to her and told her, when I found out that I
might not be able to go back to work, that I might not
have a job, I went to her, told her that I realized I could
not give her my month's notice, but I was going to have
to give up my apartment.... She asked me why. I told
her that I may not have an income if I can't go back to
work on time. She got upset and said, "They can't do
that." . . . She told me then that if I was terminated
than I should go to the Labor Board.
On Thursday, March 29, Complainant telephoned Respon-
dent's office. She left a message that she would be returning
to work on Monday, April 2. When Clark, following his
return to the office, read Gordon's message, he conferred
with Hinojosa; the men reached a consensual determination
that Complainant should be terminated.
Respondent's several purported justifications for Gor-
don's termination-though detailed within the present rec-
ord-need not be reviewed herein. The General Counsel
makes no contention that Complainant's termination raises
questions within this Board's purview. Rather, he challenges
the propriety of Respondent's conduct "after Gordon was
terminated" merely.
Later that afternoon Clark returned Complainant's tele-
phone call. He notified her that she had been replaced.
Confronted with Clark's pronouncement, Gordon com-
mented that she was being given "rather short notice" since
she was being notified just 4 days before her projected return
to work. Thereupon, so Clark testified, Complainant was
told, "I will give you an additional two weeks' pay to allow
you to be paid while you are seeking employment."
While a witness, Gordon initially testified that, following
Clark's declaration regarding her termination, she solicited
some "explanation" for Respondent's decision, and that
Clark responded, merely, with a guarded comment that "in
view of the circumstances everybody concerned would be
happier" following her replacement. Complainant did not
mention Clark's purported promise that Respondent would
"give" her 2 weeks' additional pay. She was, shortly
thereafter, questioned further, however, by the General
Counsel's representative; he asked whether Clark had said
"anything" about Gordon's coming to Respondent's office
the next day. Thus prompted, Complainant recalled then
that Clark had declared she could come in the next day to
pick up her check for the last 2 weeks of March, and that she
could come in to pick up her "severance" pay on April 15,
failing which it would be mailed. The testimonial conflict
generated by Gordon's testimony, with respect to whether
Clark characterized Respondent's prospective April 15
payment promised as "severance" pay, will be considered
subsequently, within this decision.
With matters in this posture, Clark's late afternoon
conversation with Complainant was concluded.
Later that day, Gordon telephoned Hinojosa's home;
however, he was not there. Complainant spoke with Mrs.
Hinojosa; their conversation-so Mrs. Hinojosa's testimony
(which I credit in this connection), shows-lasted some 2
hours. Inter alia, Complainant herein-characterized by
Mrs. Hinojosa as first hysterical but then wrathful, upset,
and sorry for herself-declared that Clark had discharged
her; that he had "gotten rid of her" while she found herself
in straitened circumstances, that "[he] had said that [he]
would give her some money to help her out but [he wasn't]
giving it to her. [He] owed it to her [pronouns transposed]";
that she wanted to "get back" at Clark personally; that she
would "take him" to the Board, the Internal Revenue
Service, and the Department of Labor's Wage and Hour
Division; and that "after she got through" he would be sorry
for what he had done. When Federico Hinojosa reached
home, he took over the telephone. He told Gordon that
Respondent had found a better secretary. When Complain-
ant declared her desire to discuss why she had been
terminated with both Clark and Hinojosa personally, the
latter invited her to come in the next day. Inter alia, when
Gordon described herself as worried about finding another
job I find that Hinojosa promised her a good recommenda-
tion.
While a witness, Hinojosa could not recall, initially,
whether Complainant had, herself, told him she would go to
the Labor Board, the IRS, and several other people, with
complaints about Clark, personally, or whether Mrs. Hino-
josa had reported these statements by Gordon, following
their conversation's conclusion. Later, however, he recalled
that Complainant had declared her purpose to go to the
Labor Board during their talk.
Directly thereafter, Hinojosa telephoned his professional
colleague. Clark recapitulated his prior conversation with
Gordon. Among other things, he reported, I find, that
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CLARK & HINOJOSA
Gordon had complained about not having enough time to
look for another job, that she had declared money was "very
tight" for her, and that he had "volunteered" to pay her an
additional 2 weeks' pay to help her out. Hinojosa notified his
colleague (so the record shows) that Gordon had said she
was going to cause some trouble, to go the the Board, the
IRS, and "several other people" whom Clark knew. Accord-
ing to Hinojosa, Clark's rejoinder was that Gordon could do
whatever she pleased.
2. Respondent's challenged conduct
On Friday, March 30, Gordon met with both Clark and
Hinojosa within Respondent's office. She requested Clark to
provide a reasonable, logical explanation for her termina-
tion. Pursuant to her persistent requests, Clark finally
provided Complainant with Respondent's reasons. During
their discussion, Gordon declared, inter alia, that Clark
could not rightfully discharged her, and that Respondent
would have to provide "severance" pay. With regard to their
further conversation, Clark's sworn prehearing statement,
which he confirmed while a witness, provides a recapitula-
tion:
I asked her if she told Mrs. Hinojosa that she was going
to the Labor Board and the IRS. Gordon said she was. I
then said I had no intention of subsidizing her while she
was actively going to the Labor Board and the IRS.
Gordon said, "By law you have to give me severance
pay." I said, "You can go call the Labor Board and
stand on your head, but you have just talked yourself
out of a half month's salary."
According to Gordon, Clark declared further that if she did
go to the Board regarding her termination he would "see to
it" that she would never work in Houston again. When
asked whether that statement represented a threat Clark
responded, so Complainant testified, that his statement
reflected a personal commitment, and that Respondent
would not provide a recommendation for her. While a
witness Clark denied, with Hinojosa's corroboration, making
any threats whatsoever that Gordon would be blacklisted or
denied proper recommendations. This testimonial conflict,
with respect to Clark's purported declarations, will be
considered subsequently within this Decision.
Complainant thereupon confirmed her determination to
"go to" the Board, picked up her last March 1979 paycheck,
collected her personal belongings, and left the firm.
3. Complainant's charges
On Monday, April 2, Complainant filed her first charge
herein, bottomed upon Clark's purported March 30 threat to
blacklist her should she seek redress through this Board
because of her March 29 termination. The record warrants a
determination, which I make, that Gordon's Section 8(a)(1)
charge was filed before her sworn written statement,
descriptive of Respondent's challenged course of conduct,
was given the General Counsel's representative. That state-
ment, so Gordon testified, was given on April 4 and 5.
Shortly thereafter, specifically on April 6, Clark provided
the General Counsel's representative with his sworn state-
ment, previously noted herein.
On Friday, May 4, Complainant filed her first amended
charge. Therein she charged Respondent with Section
8(aX1) and (4) violations, bottomed upon Clark's purported
blacklist threat, plus her formal claim-for the first time-
that Respondent had discriminated against her by depriving
her of severance pay because she had "expressed an intent"
to seek redress through Board processes concerning her
March 29 termination. Within 3 days thereafter, the General
Counsel's complaint was issued and served.
C. Discussion and Conclusions
With matters in this posture, several threshhold questions
basically underlying the General Counsel's position herein
must be resolved before his complaint's substantive merit
can properly be determined.
I. Complainant's employee status
Respondent vigorously contends that Gordon lacks
"standing" to complain with respect to Clark's purported
course of conduct, since she was no longer a statutorily
defined "employee" when Respondent's senior member
supposedly committed the unfair labor practices charged.
Substantially, Respondent seeks a determination that, since
Complainant had been terminated previously for reasons
which have not been challenged as statutorily proscribed,
she cannot now be considered a member of the defined
"employee" class which the statute protects.
Consistent with long recognized Board and court prece-
dential determinations, however, Respondent's contention-
despite its seemingly logical, persuasive thrust-must be
rejected. Briggs Manufacturing Company, 75 NLRB 569,
570-572 (1948). This Board, within its pre-Taft-Hartley Act
decision cited-when confronted with a contention that
complainant therein should not be considered a protected
"employee" within the meaning of Section 8(4) of the statute
since the employer-employee relationship between the re-
spondent therein and complainant had previously been
terminated for good cause-declared that:
Section 8(4) of the Act makes it an unfair labor practice
for an employer "to discharge or otherwise to discrimi-
nate against an employee because he has filed charges or
given testimony under this Act." [Italics supplied.] It is
the respondent's contention that the term "employee"
presupposes the existence of a proximate employer-
employee relationship between the employer charged
with violation of this section and the worker discrimi-
nated against and that unless there is such a relation-
ship, the section does not apply.
The respondent's interpretation of the meaning of the
term "employee," however, is too restrictive. Section
2(3) of the Act provides that the term "employee"
"shall include any employee" and expressly states that
it "shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise."
The Act thus provides for the use of the term
"employee" both in the broad generic sense as defined
in Section 2(3) of the Act, and also in a more limited
sense whenever the Act explicitly so provides. In its
generic sense the term is broad enough to include
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the working class generally. [Phelps Dodge
Corporation v. N.LR.B., 313 U.S. 177, 191-192 cited,
with a pertinent quotation.] In its limited sense the term
may include only the employees of a particular employ-
er, as for example, in Section 8(5), which requires the
employer "to bargain collectively" with the representa-
tives of his employees, subject to the provisions of
Section 9(a). Because Section 8(4) does not explicitly
limit the term "employee" to those standing in the
proximate employer-employee relationship, the broad
definition contained in Section 2(3) must prevail under
the express provisions of Section 2(3). This broad
definition covers, in addition to employees of a particular
employer, also employees of another employer, orformer
employees of a particular employer, or even applicants
for employment. Unless the purpose of Section 8(4) is to
be frustrated, the term must be interpreted to include
members of the working class generally, as well as
persons standing in the proximate employer-employee
relationship. Section 8(4) was intended to assure an
effective administration of the Act by providing immu-
nity to those who initiate or assist the Board in
proceedings under the Act. To limit protection against
discrimination only to employees of a particular employ-
er, would permit employers to discriminate with impuni-
ty against other members of the working class, and would
serve as a powerful deterrent against free recourse to
Board processes. An employee who had filed charges
against his own employer could be blacklisted by other
employers and denied employment for filing charges
against his former employer. We cannot believe that
Congress intended any lesser protection for filing
charges under the Act than it did for concerted and
union activities. [Emphasis supplied.]
The statute's successive amendments have neither modified
Section 2(3) materially nor have they modified those
relevant unfair labor practice definitions with respect to
which General Counsel claims violations herein.
Thereunder, the Supreme Court has repeatedly confirmed
this Board's competence to determine the contours of the
term "employee" when found within the statute. Allied
Chemical & Alkali Workers ofAmerica, Local Union No. I v.
Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157,
165-166 (1971), and cases therein cited. The Board's
determinations, that specified persons should be considered
"employees" qualified to claim statutory protection, will be
judicially validated if they have "warrant in the record" plus
a reasonable basis in law. See N.L.R.B. v. Hearst Publica-
tions, Incorporated 322 U.S. 111, 129-131 (1944), in this
connection.
Therein, the Supreme Court concluded that the applicabil-
ity of Section 2(3)'s definition should be determined broadly,
in doubtful situations, by reference to the statute's purpose,
plus the underlying economic facts, rather than technically
and exclusively by previously established legal classifica-
tions. In Allied Chemical and Alkali Workers of America,
Local Union No. I v. Pittsburgh Plate Glass Company,
Chemical Division, supra, the Court did note a congressional
determination to repudiate Hearst Publications, specifically
because that particular Court decision would have permitted
this Board to consider legally cognizable "independent
contractors" compassed within the statutory "employee"
definition. Nevertheless, despite its recognition that
Congress intended, thereby, to confine the statutory "em-
ployee" concept to those persons who "work for another for
hire" subject to direct supervision, the Court concluded that,
"In doubtful cases resort must still be had to economic and
policy considerations to infuse Section 2(3) with meaning."
See Local 777, Democratic Union Organizing Committee
Seafarers Int'l Union of North America, AFL-CIO v.
N.L.R.B. et al., 603 F.2d 862, (D.C. Cir. 1979) in this
connection. Consistently with that view, the Court, within
its subsequent N.L.R.B. v. Scrivener decision, previously
cited, noted with approval that both Board and Court
approaches to Section 8(a)(4) generally have been liberal
ones, calculated to effectuate, fully, the section's remedial
purpose.
The Supreme Court concluded within its Allied Chemical
and Alkali Workers decision that a particular Board deter-
mination holding retired workers compassed within the
statutory "employee" definition and consequentially within
a contractually defined group with respect to which their
former employer might be required to bargain could not be
sustained. That decision, however, clearly provides no
warrant for rejecting the general principle, previously noted,
that determinations with respect to Section 2(3)'s proper
scope fall primarily within this Board's competence.
Functioning thus within its proper sphere, the Board has
long considered its statutory mandate to preserve "employ-
ee" rights, particularly with respect to seeking redress for
putative wrongs through Board procedures, sufficiently
broad to compass Section 8(a)(4) protection for supervisors
despite their lack of statutory "employee" status. See
General Services, Inc., 229 NLRB 940, 941-943 (1977), and
cases therein cited; General Nutrition Center, Inc., 221
NLRB 850, 858-859 (1975); cf. Modern Linen & Laundry
Service, 110 NLRB 1305, 114 NLRB 166 (1956), reversed
and remanded 234 F.2d 417 (2d Cir.), 116 NLRB 1974;
similar statutory protection for job applicants, Briggs Manu-
facturing Company, supra; Pacific American Shipowners
Association, 98 NLRB 582 (1952); and Section 8(aX4)
protection for employees of different employers, Lamar
Creamery Company, 115 NLRB 1113 (1956), enfd. 246 F.2d
8 (5th Cir. 1957). More particularly, Board decisions have
likewise confirmed Section 8(a)(4)'s protective reach with
respect toformer workers purportedly subjected to discrimi-
nation proscribed thereby subsequent to their cessation of
work. The United Credit Bureau of America, Inc., 242
NLRB 921 (1979); George A. Angle, 242 NLRB 744 (1979)
Power Systems, Inc., 239 NLRB 445 (1978), enforcement
denied on other grounds 601 F.2d 936 (7th Cir. 1979).
These decisions clearly derive from and reaffirm this Board's
long maintained Briggs Manufacturing Company rationale,
previously noted.
In N.L.R.B. v. Texas Natural Gasoline Corporation, 253
F.2d 322, 325 (5th Cir. 1958), denying enforcement with
respect to 116 NLRB 405 (1957), the court of appeals did
hold that a worker who had been properly discharged could
not be considered a protected "employee" for Section 8(a)(3)
purposes, the following day.
That case, however, presented no problem with respect to
Section 8(a)(4)'s protective reach; see N.L.R.B. v. Scrivener,
716
CLARK & HINOJOSA
supra at fn. 5, in this connection. With all respect, I find the
Court's decision herein without persuasive relevance.
Mindful of these Board determinations, I find Respon-
dent's present contention that complaints may properly be
considered "employees" qualified to claim Section 8(a)(4)'s
protection despite their prior discharge solely in situations
which reflect their antecedent terminations because of some
unfair labor practice or their cessation of work in connection
with a current labor dispute completely lacking in persua-
sion.
Consistent with its contention that Gordon should not be
considered a statutory "employee" qualified for protection
Respondent claims within its formal answer filed herein that
complainant's statements and representations regarding her
protected "employee" status, set forth within her charges
filed, were false and fraudulent. Such hyperbolical claims
though hardly deserving of censure as frivolous, surely merit
characterization as meretricious; I find them completely
devoid of factual or legal justification. They should be, and
will be, disregarded.
2. Statutory protection for Gordon's conduct
Respondent seeks a dismissal of General Counsel's com-
plaint, contending that his record presentation herein pro-
vides no warrant for a determination that complainant's
course of conduct should be considered statutorily protect-
ed. Substantially, Respondent's contention subsumes a claim
that Gordon's professed determination to seek redress
through Board procedures for the putative wrong done her
when she was terminated cannot be considered conduct
properly within Section 8(a)(4)'s protective reach.
Though Respondent's contention, within the particular
context of this case, may raise questions sufficiently signifi-
cant to warrant discussion, counsel's general proposition
that Gordon's declaration of purpose cannot legitimately be
considered protected merits rejection. Relevant case law
clearly reveals consistent Board determinations that employ-
ees subjected to discrimination because they may have
declared their desire or purpose to seek Board help some
time thereafter in support of claims or grievances against
their employer qualify for relief pursuant to Section 8(a)(4)'s
proscription, though they may not have yet filed charges or
given testimony with respect thereto. General Nutrition
Center, Inc., 221 NLRB 850, 855 (1975); Southwest Janitori-
al and Maintenance Corporation, 209 NLRB 402, 405
(1974); First National Bank & Trust Co., 209 NLRB 95,
100-101 (1974), enfd. 505 F.2d 729 (3d Cir.); Ertel Manu-
facturing Corporation, 200 NLRB 525 (1972); Hoover Design
Corporation, 167 NLRB 461, 462 (1967), enforcement
denied 402 F.2d 986, 987 (6th Cir.); Redwing Carriers, Inc.,
165 NLRB 60, 78-80 (1967); Hydraflo Valve & Manufactur-
ing Co., 158 NLRB 730, 731, 736 (1966); Virginia-Carolina
Freight Lines, Inc., 155 NLRB 447 (1965). See, likewise,
Inked Ribbon Corp., 241 NLRB 7, 12 at fn. 20 (1979);
Glenside Hospital, 234 NLRB 62 (1978), in this connection.
In Hoover Design Corporation v. N.L.R.B.. 402 F.2d 987
(1968), the Court of Appeals for the Sixth Circuit did hold,
flatly, that a worker's discharge, because he had "threatened
to go to the Board" with a grievance, could not be
considered a Section 8(a)(4) violation. Subsequently, the
Supreme Court, within its Scrivener decision previously
noted, commented-presumably with approval-that vari-
ous Board and Court determinations, with respect to Section
8(a)(4)'s proscriptive reach, reflected consistently liberal
constructions; however, Hoover Design concurrently was
cited, carrying merely a crptic "But cf." reference, without
further comment. Clearly, when Scrivener was decided, no
question with respect to Hoover Design's limited construc-
tion of Section 8(aX4)'s reach had been presented, therein,
for Supreme Court disposition. No comment, with respect to
Hoover Design, was required. The Court's discussion within
its decision, nevertheless, plainly suggests-though it does
not hold-that this Board's Hoover Design determination,
rather than the Sixth Circuit's contrary view, would proba-
bly be considered consistent therewith. See First National
Bank and Trust Company, supra at 101, with respect to this
point.)
The decisional principle which these cited cases confirm
has consistently been considered dispositive not merely in
situations where a particular worker's claim or grievance
would have provided a basis for some meritorious charge
within the statute's reach but likewise in situations where
such claims or grievances concerned matters patently be-
yond this Board's remedial jurisdiction. See N.L.R.B. v.
Whitfield Pickle Company, 374 F.2d 576, 582-583, (5th Cir.
1967), in this connection. If the statute protected merely
meritorious pleas for Board help the Board's proper "chan-
nels of information" would be restricted, since prospective
complainants might reasonably fear retaliation should their
pleas for Board relief prove bootless because they had
misconceived the statute's substantive thrust.
With matters in this posture, I conclude that Gordon's
declarations, inter alia, regarding her intention to seek
redress through Board processes because she considered her
termination unfair should be deemed statutorily protected.
Whether Respondent's reaction to her declarations should,
nevertheless, be considered beyond Section 8(a)(4)'s pro-
scriptive reach because of the context within which they
were made will be discussed subsequently, within this
decision.
3. Respondent's purportedly discriminatory reaction
Respondent contends further that Clark's withdrawal of
his conceded promise to "give" Complainant "pay" for
weeks subsequent to her March 29 termination should not be
considered within its situational context discrimination
statutorily proscribed. More particularly, Respondent claims
that Clark's withdrawal of his so-called "severance pay"
promise should be considered a refusal to deliver a mere
"qualified" and "conditional" gift. Essentially, Respondent's
brief suggests first that Clark's promise was not a commit-
ment to compensate Gordon for services rendered, or stated
differently, that Complainant had provided no prior legal
"consideration" for Respondent's proffer; second, that
promises concerned with purely voluntary transfers without
some reciprocal consideration or compensation constitute
nothing more than promises to provide gifts; third, that gifts
cannot be considered "valid" or "complete" without some
"actual, constructive, or symbolic" delivery sufficient to
warrant a determination that title with respect to the specific
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property transferred has effectively vested with the donee;
fourth, that no such "delivery" had taken place herein, and
therefore no gift transfer had been completed. Ergo, Respon-
dent contends, Clark's declaration that Gordon had "talked
herself out of a half month's salary" should not be
considered "discrimination" which Section 8(a)(4) forbids,
since it deprived her of nothing which she currently
possessed or could legally claim.
These contentions, though grounded in conventional
contract law concepts, present a novel question for Board
consideration. My research has revealed no Board decisions
wherein the specific question posed has been considered or
resolved. Analysis with respect thereto, therefore, must
necessarily begin with first principles.
Discrimination has been conventionally defined as "the
unequal or unfair application of policy to an individual or
group." Roberts, "Dictionary of Industrial Relations."
Webster's "Third New International Dictionary" speaks of
"differences in treatment or favor on a class or categorical
basis." In connection with Board cases, courts have called
"treating like cases differently" statutorily proscribed. Flori-
da Steel Corporation v. N.L.R.B., 587 F.2d 735, 746-748
(5th Cir. 1977); Midwest Regional Joint Board Amalgamated
Clothing Workers of America, AFL-CIO v. N.L.R.B., 564
F.2d 434, 442 (D.C. Cir. 1977). Substantially, discrimination
may take two forms, i.e., when workers similarly situated are
treated disparately, and when particular workers are treated
differently than they would have been treated under other
circumstances. In various situations presented for Board
consideration, such differential treatment normally will
involve "benefits" defined pursuant to preexisting policies or
past practice which have been conferred or withheld and/or
conversely "detriments" or "disadvantages" which particu-
lar workers may have suffered or from which they may have
been relieved.
In this case, Gordon has been denied a promised "benefit"
consisting of 2 weeks' pay-really, one-half of I month's
salary-because she had, following Clark's promise, de-
clared her purpose to seek Board help concerning her
putatively "unfair" termination.
While a witness, herein, Gordon consistently character-
ized Clark's promise as his commitment to provide her with
"severance" pay. Upon due consideration, however, I have
concluded that Respondent's senior member never volun-
teered that descriptive term. Gordon may have, subjectively,
considered Clark's promise a commitment to grant her
severance pay; she may have, herself, so designated the
payment promised, during her March 29th conversations
with Mrs. Hinojosa, and Federico Hinojosa. She may have,
further, reiterated such a capsule characterization during her
final March 30 conversation with Clark and Hinojosa,
jointly. Within my view Complainant's testimony, however,
will not support a determination contrary to Clark's prof-
fered recollections, that he concurred with, or adopted, her
descriptive phrase, expressly or tacitly, during their final
talk.
The General Counsel's representatives, however, have
made no record showing whatsoever that Clark's withdrawal
of his promise constituted disparate treatment, whereby
Gordon was denied a benefit which Respondent's other
employees had previously been granted pursuant to firm
policies or past practice or which they might subsequently be
granted.
More particularly, no documentation has been proffered
herein that Texas law requires employers to provide "sever-
ance" pay for workers terminated under circumstances
comparable with those revealed within the present record.
Thus no contention could be made, persuasively, that
Clark's withdrawal of his promise flouted a legal duty.
Further, no testimonial or documentary proffers would
warrant a determination that Respondent had some previ-
ously established policy or practice or proposed to generate
one calling for post-termination pay. General Counsel's
representatives, in short, have not demonstrated that Gor-
don was treated differently than Respondent's other employ-
ees, terminated under comparable circumstances, had regu-
larly been or would be treated.
Of course, complainant was treated differently than she
would have been treated had she not declared she would "go
to the Board" regarding her termination. But the favorable
treatment she had previously been promised was not
favorable treatment pursuant to Respondent's previously
"established" policy or practice; Gordon had never, while in
Respondent's hire, been given reason to consider post-
termination pay a regular employment term or condition.
In Manuel San Juan Company, Inc., Commonwealth
Insurance Company and United Adjustment Bureau, 211
NLRB 812, 818-819 (1974), the Board did find a discrimi-
natory denial of severance pay violative of Section 8(aX4),
when it was denied a single worker, discharged with several
others, who had filed Board charges. Therein, however,
Respondent's payment of severance pay had been required
by Commonwealth law; the worker concerned could, right-
fully, have considered herself entitled to such compensation,
since "severance" pay had, pursuant to statute, become a
term or condition of her employment, which her employer
could not discriminatorily withhold.
This Board has frequently found a firm's decision to deny
or withhold Christmas gifts, bonus payments, or personal
privileges for statutorily proscribed reasons discriminatory
within the meaning of the statute. See, e.g., Valley Oil Co.,
210 NLRB 370, 379 (1974); American Rubber and Plastics
Corp., 200 NLRB 867, 874 (1972), K-D Manufacturing
Company, 169 NLRB 57, 60, 64 (1968). Compare South
Station Liquor Store, Inc., d/b/a Berenson Liquor Mart, 223
NLRB 1115 (1976), in this connection. Those determina-
tions, however, have routinely been bottomed upon factual
conclusions that the given firm's gift program, bonus
program, or grant of personal privilege had become a
cognizably "established" working term or condition.
My research has revealed no case wherein a financial
"benefit" gratuitously promised for the first time, but
subsequently withheld, has been considered discriminatorily
denied. In General Services, Inc., supra, at 941, the Board
stated that:
the phrase in Section 8(a)(4) prohibiting the employer
from "otherwise" discriminating against an employee
has been broadly interpreted. (Citing N.LR.B. v.
Scrivener, supra at 122) ....
The reference, however, concerned types of discrimination
with regard to hire and tenure other than discharges; the
Board specified conditional rehirings, refusals to hire, and
718
CLARK & HINOJOSA
refusals to rehire workers terminated nondiscriminatorily. In
short, the Board was not considering therein refusals to
perform gratuitiously proffered executory promises whereby
"benefits" never previously granted have, post hoc, been
withheld.
The Board has, however, held that conduct which does
not directly affect terms and conditions of employment may
nevertheless be considered "discrimination" which Section
8(aX4) proscribes. Power Systems, Inc., supra, citing Howard
Manufacturing Co., Inc., 231 NLRB 731 (1977), in this
connection.
In Power Systems, the Board found a civil lawsuit filed by
respondent firm within Section 8(a)(4)'s reach, inter alia.
because the former worker sued had necessarily "incurred
immediate expenses" connected with his defense and thereby
had suffered a significant property loss directly consequent
upon his prior filing of Board charges. Herein, however,
Gordon has suffered no direct "loss" of property previously
possessed or legitimately claimable because of Clark's
decision to withdraw his conceded promise. In Howard
Manufacturing, supra, the Board found that the concerned
employer had violated Section 8(a)(4) by refusing to pay
witness fees and mileage allowances to workers whom it had
subpenaed in connection with a Board hearing. Within its
decision the Board declared that:
We are not here concerned with . . . whether a
quasicontractual action would lie for collection of
witness fees. Rather, we are faced with the question of
whether the Respondent's refusal to pay witness fees to
alleged discriminatees violated the Act and impedes the
Board's processes. In light of the broad scope of the
protection afforded by Section 8(a)(4) [citing Scrivener,
405 U.S. 117 (1972)] we find that it does....
[Emphasis supplied.]
The Board commented in this connection that when respon-
dent concerned refused to pay witness fees and mileage
allowances that firm could and did "economically disadvan-
tage" workers for appearing at the Board's hearing. It
should be noted, however, that pursuant to statute and this
Board's rules subpenaed workers are vested with a legal
duty; compliance with subpenas is considered mandatory.
When those subpenaed subsequently comply they necessarily
lose compensable working time and must incur certain travel
costs. And therefore when denied compensation for their
lost time and presumptive travel expenses, which the Board's
rules would specifically require their subpena's proponent to
recompense, they clearly suffer significant out-of-pocket
financial "disadvantages" differentially imposed. Herein,
however, complainant has suffered no compelled financial
"disadvantage" or "detriment" for which she has been
denied recompense; she has merely been denied a prospec-
tive realization of benefit "expectations" generated by her
Employer's gratuitous executory promise.
With matters in this'posture we confront, finally, the
problem of statutory construction which this Board within
its First National Bank and Trust Company, supra, decision,
passed without comment. Therein, Administrative Law
Judge Harmatz found that a complainant dischargee had
been terminated because her employer "believed" she had
filed or would file Board charges. However, confronted with
testimony that respondent's supervisor had twice promised
the dischargee during her discharge interview and 5 days
thereafter compensation covering a period beyond her
service termination date and that this "benefit" had subse-
quently been denied for discriminatory reasons, Judge
Harmatz nevertheless found:
that the General Counsel has not sustained his burden
of proving that Snyder was entitled to or promised this
benefit ... The General Counsel adduced no evidence
that Respondent had any form of practice whereby
severance pay was granted to tellers upon their termina-
tion. Furthermore, in view of her short term with the
bank, I deem it highly unlikely that, if such a practice
existed, Snyder would have met even the most liberal of
eligibility requirements for any such benefit. Finally,
considering the circumstances surrounding her dis-
charge, I consider it highly improbable that Respon-
dent's agents would have manifested such generosity to
Snyder .... [Emphasis supplied.]
With matters in this posture Judge Harmatz dismissed for
lack of proof General Counsel's Section 8(aX4) and (1)
complaint allegations, bottomed upon respondent bank's
failure or refusal to provide a dischargee with purportedly
promised severance pay. The Board concurred. Though
Judge Harmatz' analysis suggests his conceivable readiness
to hold that had a bare promise of severance pay chargeable
to respondent bank, in his case, been proven by the General
Counsel's representative, the bank's denial of such "compen-
sation" would have merited condemnation as discrimina-
tion, statutorily proscribed, the judge reached no such
conclusion. And the Board's subsequent decision therefore
reflects no dispositive determination with respect thereto.
If this case's disposition could be bottomed upon conven-
tional principles of contract law, General Counsel's basic
contention that Gordon suffered a discriminatory denial of
some promised benefit would, within my view, merit
rejection. Gratuitous executory promises-specifically,
promises not supported by some right, interest, profit, or
benefit reciprocally promised or conferred upon the promisor
or by some forbearance, detriment, loss or responsibility
given, suffered or undertaken by the promisee pursuant to
his or her promisor's request-create no legally enforceable
commitments. Hence, when such promises are broken or
withdrawn promisees, such as Complainant herein, suffer no
reasonable "loss" or disadvantage" legally cognizable. See,
generally, 17 Am. Jur. 2d, "Contracts," Sections 85-146,
wherein some pertinent discussion will, inter alia, be found.
When people receive mere "naked" promises which are
subsequently broken they find themselves no worse off than
they would have been; having given nothing for such
promises they have lost nothing when those promises are
withdrawn and have suffered no damages judicially recog-
nizable. Ergo, they have presumably suffered no "discrimi-
nation" statutorily proscribed.
This Board, however, has consistently demonstrated its
determination to give Section 8(aX4) broad protective scope.
That determination, manifested within a comparatively wide
range of factual situations, has thus far been judicially
recognized; the Board's wide ranging protective reach has
largely been confirmed.
A Board decision, within a recent case, clearly reflects its
broadly expansive concept regarding statutorily proscribed
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"discrimination" particularly with reference to purported
Section 8(a)(3) violations. Sidney Shwartz; d/b/a National
Wholesale Company, supra. Therein, the Board declared
that:
The Administrative Law Judge found that Bergeron
was not entitled to his Christmas bonus because there
was no evidence regarding Respondent's policies and
practices on eligibility for the Christmas bonus. The
record discloses, however, that Shwartz informed Ber-
geron that there was no Christmas bonus for him
because he had brought the Union into National
Wholesale. The discriminatory nature of this denial of
benefits is evident on itsface. .... [Emphasis supplied.]
Administrative Law Judge Mclnerney's decision had sug-
gested (though he made no specific finding) that respondent
therein maintained a regular "established" holiday bonus
program; the judge had rejected General Counsel's conten-
tion regarding a purportedly "discriminatory" withholding
of Bergeron's Christmas bonus solely because his record
provided no evidence concerning respondent firm's policies
or practice on bonus eligibility determinations. Substantially,
therefore, this Board's contrary conclusion-that respon-
dent's denial of Bergeron's Christmas bonus merited charac-
terization as discriminatory-was reached despite a failure of
proof that he had, in fact, qualified for it pursuant to
presumptively "established" policies and practices or that its
denial constituted disparate treatment. Certainly, Board
determinations with respect to conduct cognizable as pro-
scribed discrimination, within Section 8(a)(4) cases, particu-
larly, would presumably track the basic approach which this
National Wholesale decision necessarily exemplifies.
Constrained by substantial policy considerations which
have consistently been recognized, particularly within this
Board's Section 8(aX4) decisions, I conclude, therefore, that
Clark's withdrawal of his promise regarding Gordon's post-
termination pay because she had declared her determination
to seek redress through Board processes for her purportedly
"unfair" termination constituted discrimination which the
statute forbids.
4. Respondent's motivation
Respondent suggests (without conceding the correctness
of my conclusions previously noted) that Clark's withdrawal
of his conceded promise should not be considered motivated
by Gordon's declaration, particularly, that she would seek
Board relief because of her termination. The firm's presenta-
tion considered in totality reflects a contention, rather, that
Clark's challenged statement derived from his resentful
reaction when confronted with Complainant's proclaimed
determination to mount a broadly gauged campaign of
reprisal without probable cause calculated to harm Respon-
dent's credit and business repute and to deprive that firm of
both "service and property" contrary to law.
Within its formal answer Respondent cites merely Gor-
don's March 29 declarations, purportedly repeated during
her March 30 confrontation with Clark within his junior
colleague's presence, that she would "report" them for
violation of the National Labor Relations Act and Internal
Revenue Code, specifically. While a witness, however, Clark
proffered a more detailed recital with regard to reports
which he had received regarding Complainant's various
"threats" purportedly conveyed to Mrs. Hinojosa and her
husband. Specifically, Clark testified that he had been told:
she made many threats. The NLRB and the IRS were
only two of the many entities and/or individuals that
she said she was going to go to. ... She stayed on the
telephone with Mrs. Hinojosa for approximately two
hours. During that two hour period Judy Gordon made
many threats to me individually, to the law firm
collectively, about what she was going to do because she
had been terminated. The NLRB was only one of many
threats she made.... She was going to call my girl
friend, the girl that I had been dating, and was going
supposedly to expose me for whatever activities, curri-
cular or extra curricular, that I may or may not have
been engaged in ...
While a witness Clark declared, finally, that "all of the
threats" which Gordon had made plus "all of the insinua-
tions as to what she was going to do" proffered during her
successive telephone conversations with Mrs. Hinojosa and
her husband, which she repeated during their subsequent
March 30 confrontation, had "caused" him to revoke his
posttermination pay promise.
Having observed Clark's witness demeanor, coupled with
Federico Hinojosa's witness behavior, I credit their mutually
corroborative testimony that complainant's purported
"threats" hereinabove noted were reported. Further, I credit
Mrs. Hinojosa's testimony that such threats were, indeed,
made.
While a witness, Gordon conceded that, when she called
Federico Hinojosa's home, she had been "extremely agitat-
ed," that she had been "really upset," and that Clark's
failure to provide a reasoned explanation for her termination
had made her "very angry." Within my view, Complainant's
comparatively limited recital, regarding her conversations
with Mrs. Hinojosa and Federico Hinojosa, therefore may
properly be discounted. The likelihood that her concededly
"agitated... angry" conversational declarations, recollect-
ed subsequently, have been comprehensively reported, here-
in, without conscious or subconscious censorship, and/or
without self-exculpatory coloration, I consider remote.
Complainant has conceded that she did "mention" the IRS
during her conversation with Mrs. Hinojosa; she denied,
however, that some "threat to go to the IRS" was made.
According to Gordon, she merely stated that since the IRS
had taken "some serious actions" directed against several
other attorneys with whom Clark had been friendly for not
paying their taxes she was "afraid" that would happen to
Respondent also. Upon this record, however, I find com-
plainant's present suggestion that, despite her "agitated. ..
angry" reaction when notified of her termination, she had
merely declared her concern for Federico Hinojosa's welfare,
disingenuous. Mrs. Hinojosa's testimony, both with respect
to Gordon's specific "IRS" threat and various other threats
was, however, proffered straightforwardly, within my view, I
have found it worthy of credence.
With matters in this posture we confront Respondent's
contention that Gordon was denied post-termination pay not
because she had, inter alia, declared her determination to
seek Board help, but because she had manifested her
determination to mount a campaign of harassment directed
720
CLARK & HINOJOSA
against Clark particularly. See Lloyd H. Biggs, d/b/a Rock
Road Trailer Parts and Sales, 204 NLRB 1136 (1973), in this
connection. In Power Systems, George A. Angle, and United
Credit Bureau of America, supra, the Board considered, but
rejected, contentions that civil lawsuits filed against Board
complainants should have been found beyond Section
8(a)(4)'s proscriptive reach, because the nonmeritorious
Board charges which prompted them had been filed without
probable cause for harassment purposes. The Board deci-
sions noted, however, clearly imply conversely that had
respondents therein demonstrated persuasively that the
Board charges which prompted their lawsuits had indeed
been filed without probable cause for harassment purposes,
no Section 8(a)4) violations would have been found.
Essentially Respondent's contentions, - though proffered in
convoluted legalisms, suggest that General Counsel's com-
plaint should be dismissed, consistent with the decisional
principle noted.
Upon this record there can be no doubt, within my view,
that Gordon's determination to seek Board relief, calculated
to redress her purportedly "unfair" termination, derived
from a completely mistaken belief that her situation would
warrant statutorily provided sanctions. That belief had,
presumably, been generated by her apartment house manag-
er's prior "off-hand" comment that should she be terminated
she might seek redress through Board procedures. Thus,
Gordon's March 29 and 30 declarations that she would seek
Board help clearly lacked "probable" cause.
This Board has, however, consistently held that complain-
ants who mistakenly seek to invoke Board processes will
nevertheless be considered within Section 8(aX4)'s protective
reach.
Respondent's claim, nevertheless, that Gordon threatened
to set Board procedures in motion merely as part of her
proclaimed campaign of reprisal merits further consider-
ation.
Upon this record, I am satisfied that Complainant did
indeed declare her desire to "get back" at Clark for
treatment which she considered unfair. Further, I am
satisfied and find that she threatened to pursue a course of
conduct which-reasonably construed-could have been
considered prospective harassment.
However, the complete testimonial and documentary
record-save for Clark's final testimonial statement, previ-
ously noted, that the totality of Gordon's reported "threats"
and portentous "insinuations" caused him to withdraw his
conceded promise-persuasively warrants a determination,
within my view, that her declared intention to seek Board
help significantly contributed to Respondent's decision that
complainant should be denied posttermination pay. When he
gave a Board representative his sworn statement, Clark
made no claim, in haec verba, that the totality of Gordon's
threats had prompted his promise's withdrawal; he cited
none of them, save her conjoined threats to "go to the Labor
Board" plus the Internal Revenue Service. His statement
reveals that he questioned her with respect to both of those
threats solely. Subjectively, he may conceivably have been
disturbed by certain further threats; his statement, however,
fails to reveal that he mentioned them. Instead, that
statement shows clearly that Gordon's proclaimed determi-
nation to "call the Labor Board" was a prime motivational
factor, for note Clark's declaration that she had "just talked
herself out of a half month's" post-termination salary.
Compare Lloyd H. Biggs, d/b/a Rock Road Trailer Parts
and Sales, supra, p. 1137, in this connection. The statement,
when read as a whole, constrains me to conclude, despite
Clark's presently proffered contrary contention, that his
promised gift of posttermination pay was withdrawn in
material part because of her declared determination to resort
to Board procedures. Discriminatory conduct, partially but
significantly motivated by a concerned employee's presump-
tive threat to seek Board redress for a fancied grievance, falls
within Section 8(aX4)'s proscriptive reach. Glenside Hospi-
tal, supra. I so find.
5. Respondent's purported blacklist threat
The General Counsel's further contention-that Respon-
dent's threat to blacklist Complainant herein presumably by
refusing to provide favorable recommendations which her
prospective employers might thereafter solicit violated the
statute-has previously been noted. No credible testimony
sufficiently persuasive to sustain a determination that such a
threat was made can be found, however, within the present
record.
While a witness Clark denied categorically that he had,
during their March 30 confrontation, threatened to blackball
Gordon or "see to it" that she would no longer work
anywhere within the Houston area; I credit that denial.
Complainant's contradictory testimony that he did volunteer
such a threat carries no persuasion, within my view.
Gordon's disposition to consider Clark's course of conduct
toward her shabby and prejudicially unfair, has, previously
herein, been noted. Subjectively, she may conceivably have
considered him capable of pursuing "blackball" tactics;
cognizant of their confrontation's context, she may well have
feared such prejudicial conduct on his part. However, upon
this record considered in totality I am satisfied that
Gordon's purported recollection with respect to Clark's
blacklist threat derives from post hoc rationalization, merely,
whereby "afterthoughts" have significantly colored memory.
The General Counsel's contention that Respondent's senior
member threatened to blacklist Complainant should, there-
fore, be dismissed.
D. Postscript
Consistent with the decisional principles discussed herein,
I have concluded that Respondent's course of conduct
should be considered Section 8(aX4) and derivative Section
8(aXl) violations of law. Candor constrains me to concede,
however, that while the General Counsel's representatives
may have sustained their burdens of proof and persuasion
they have prevailed "by the skin of their teeth" merely,
within my view. With matters in their present posture, I
note:
1. That my conclusion with respect to this Board's
statutory jurisdiction, herein--though bottomed upon well
settled decisional doctrine-derives from a projection, rather
than a definitive year's record of Respondent's involvement
in commerce.
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. That a Board determination which disregards the
General Counsel's failure to demonstrate Respondent's
projected satisfaction of some relevant discretionary jurisdic-
tional standard will, necessarily, derive from policy consider-
ations.
3. That my conclusion with respect to Gordon's protected
"employee" status-though likewise grounded in well set-
tled case law-derives from a construction of the statute
dictated by policy considerations, rather than Section 2(3)'s
plain language.
4. That my determination relative to Complainant's
statutorily "protected" conduct-more particularly, my
conclusion that her declarations regarding her purpose to
seek Board redress, for a termination grievance, fell within
Section 8(a)(4)'s protective reach-likewise derives from a
concededly liberal construction of the statute, grounded in
policy considerations, rather its literal phraseology.
5. That my conclusion with respect to Respondent's
putative "discrimination" demonstrated within the present
record cannot be considered bottomed upon persuasively
relevant, four-square, decisional precedents; rather it rests
upon some rationale-calculated to promote statutory poli-
cies - substantially extrapolated from certain general princi-
ples, found in collaterally related decisions.
6. That my determination with respect to Respondent's
statutorily proscribed motive-though based squarely upon
the record, and nothing but the record, made herein--
necessarily disregards the possibility, clearly implicit therein,
that Respondent's counsel, had they recognized the ques-
tion's significance, might have demonstrated, persuasively,
that Clark's withdrawal of his conceded promise derived,
substantially, from a congery of motives sufficiently broad to
carry his conduct beyond this Board's statutorily-defined
cognizance.
These considerations, within my view, raise a transcen-
dental question: Does the clearly "borderline" situation
disclosed within the present record provide a genuinely
appropriate occasion for General Counsel's plea that the full
panoply of Federal regulatory power should be invoked to
restrain Respondent herein? That question's disposition, of
course, cannot be determined properly within my defined
adjudicative sphere; it must be resolved, necessarily, within
this Board's sound discretion.
Finally, however, certain further contentions proffered by
Respondent should be noted. Within its formal answer
Respondent suggests that complainant's operative charge
caused the General Counsel's representatives to press a
complaint calculated to secure for her property which she
could not have obtained through legal processes herself; that
Board directives bottomed upon the General Counsel's
complaint would deprive Respondent of property without
due process of law compel Respondent to relinquish firm
property without just compensation, deny the firm's princi-
pals equal protection of the laws, and without constitutional
warrant abridge their freedom of speech. Further, Respon-
dent contends that Gordon was denied post-termination pay
consistent with the spirit of Section 8(bX6) of the statute,
since the firm merely withdrew a promise "to pay . . .
money . . . in the nature of an exaction for services" never
performed which she would not be required to perform.
These somewhat florid contentions-stripped of legalese and
recast in terms cognizable within this Board's competence-
substantially convey Respondent's position that Gordon's
charges reflect her abuse of Board procedures.
Upon this record, therefore, the Board may conceivably
wish to consider whether Gordon's present charges though
putatively calculated to vindicate her statutorily protected
rights really constitute part of her previously conceived
campaign to "get back" at Respondent's senior associate. If
so, the Board may within its discretion refuse to allow such
advantage to be taken of it. N.LR.B. v. Indiana & Michigan
Electric Co., 318 U.S. 9, 18-19 (1943); cf. Vaughn bowen, et
al., 93 NLRB 1147, 1154 (1951). Within the Supreme Court
decision cited, Justice Jackson noted that:
[The Board] is not required by the statute to move on
every charge; it is merely enabled to do so. It may
decline to be imposed upon, or to submit its process to
abuse.
I note the possibility, therefore, that this Board could within
its discretion refuse to proceed further with this case. Such a
decision, however, must be left with the Board; having
concluded upon this record that statutory violations have
been made out, however thinly, I must and shall recommend
appropriate remedies.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II, above,
since they occurred in connection with Respondent's profes-
sional service operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States sufficient to warrant
a determination that absent correction they would tend to
lead to disputes burdening and obstructing commerce and
the free flow of commerce.
IV. REMEDY
Since I have found that Respondent has committed and
has thus far failed to remedy certain specific unfair labor
practices which affect commerce, I shall recommend that it
be ordered to cease and desist therefrom and to take certain
affirmative action, including the posting of appropriate
notices, designed to effectuate the policies of the Act, as
amended.
Specifically, since I have found that James R. Clark
withdrew a promise to provide Gordon with posttermination
pay for a statutorily proscribed reason, I shall recommend
that Respondent be required to make Gordon whole for the
deprivation which she suffered by reason of Respondent's
discriminatory conduct by paying her the one-half of 1
month's salary which she had been promised, less her net
earnings, if any, during the specific period which that
compensation would have covered. Interest thereon should
likewise be paid, computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962) in this connection.
722
CLARK & HINOJOSA
CONCLUSIONS OF LAW
In view of these findings of fact and upon the entire record
in this case I make the following conclusions of law:
1. Respondent, Clark and Hinojosa, Attorneys at Law, A
Professional Corporation, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act,
as amended.
2. By James R. Clark's withdrawal of his promise to give
Complainant, Judy Gordon post-termination pay because of
her declaration that she intended to seek redress through
National Labor Relations Board procedures for her purport-
edly unfair termination Respondent has committed unfair
labor practices within the meaning of Section 8(aX4) and (1)
of the Act, as amended.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby issue, pursuant to Section
10(c) of the Act, as amended, the following recommended
Order:
ORDER'
The Respondent, Clark and Hinojosa, Attorneys at Law,
A Professional Corporation, Housten, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Denying promised posttermination pay for terminated
employees because they have declared their intention to seek
redress through National Labor Relations Board procedures
for their purportedly unfair terminations or because they
may have filed Board charges or given testimony under the
Act, as amended.
(b) Interfering with, restraining, or coercing employees, in
any like or related manner, with respect to their exercise of
rights which Section 7 of the Act guarantees.
2. Take the following affirmative action designed to
effectuate the policies of the Act, as amended:
(a) Make whole Judy Gordon for the deprivation which
she suffered by reason of James R. Clark's refusal to grant
her post-termination pay consistently with his prior promise
in the manner set forth within the "remedy" section of this
Decision.
(b) Post at Respondent's present Houston, Texas, profes-
sional offices copies of the attached notice marked "Appen-
dix." Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps should be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 23, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I In the event that 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."
723