246 N.L.R.B. 948 (N.L.R.B. 1979)

Downslope Industries, Inc.

National Labor Relations Board - Board DecisionsDec 14, 1979

246 N.L.R.B. 948 (N.L.R.B. 1979)

I) L(ISIONS () NAIO()NAI. IABOR RELA II()NS OARD) Donslope Industries, Inc. and (;reenbrier Industries, Inc. and Patricia Nell Murr. Case 10 ('A 12321 December 14, 1979 [EC('ISION ANI) ORI)R BY CIIAIRMAN FANNING ANI) MI MIIIRS J NKINS MURPIHY. ANt) TRI:T SI)I I1 On September 15. 1977. Administrative I.aw Judge Julius Cohn issued the attached Decision in this pro- ceeding. Thereafter, the General ounsel and Re- spondent filed exceptions and supporting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and brief's and has decided to affirm the rulings, findings.' and conclusions of the Administrative l.aw Judge. as modified below, to modifs his remedyv so that interest is to be computed in the manner prescribed in FIridtl Stel ('otPoration. 231 Nl.RB 651 (1977),2 and to adopt his recommended Order, as modified herein. \We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by discharging employees for engaging in protected concerted activity. I lowever, contrary to the Administrative Law Judge and for the reasons set forth below, we find that Respondent's discharge of Supervisor lelen Marie Scarlett also violated Section 8(a)( I ) of the Act. In September 1976, Respondent hired David Jimerson as the plant manager. Within a few days after Jimerson reported to work, he made improper verbal and physical sexual advances toward a num- ber of female employees and their supervisor. Helen Scarlett. When her supervisees complained of these incidents, Scarlett brought the advances to the atten- tion of her superior, Robert Lane, in the course of two meetings with him. She told Lane what was involved and gave him the names of the employees who had complained. Lane rebuffed Scarlett's efforts to relate the employees' grievances, informing Scarlett that she was capable of taking care of herself. Scarlett re- sponded that she was not concerned about her own well-being, but that of the complaining employees. When Lane failed to take any action regarding Jimer- son's conduct, Scarlett told some of the employees that they would have to talk to Lane themselves be- cause he did not believe her. I Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to crediit unless the clear preponderance of all of the relevant eiderce coninces us that the resolutions are incorrect, Sanalird Dry Ill Prdut . Inc. 91 N RB 544 {19501, enid. 188 -.2d 362 (3d (ir 1951). We have caretfully exmined the record and and find no basis hor reversing his findings. 2 See., generally Isit Plunhmbing & fIheatin ( , 138 NLRB 716 (1962). One meeting was on September 20 and the other was on September 21 Before commencement of work on September 22. 1976, most of the 18 to 20 employees in Scarlett's area gathered around her work desk. The employees told Scarlett that they did not wish to continue working with Jimerson because of' his sexual advances. The employees also refused to work until they had an op- portunity to talk to L.ane about imerson's conduct. At that point Jimerson appeared and asked the women why they were not working. Scarlett informed him that the employees were refusing to work be- cause of his sexual advances and that the, had ex- pressed a desire to talk to Lane about his improper conduct. Jimerson, rather than densing the accusa- tions, only asked the identity of' those women to whom he had made advances. When several emplo\- ees responded, Jimerson denied the accusations. Scar- lett then recounted Jimerson's harassment of her, and shouted "and don't you call me a liar." and struck him. Jimerson immediately left, and several employ- ees and a supervisor physically removed Scarlett to the far end of' the floor. Within minutes thereafter. Lane. who had just ar- rived at the plant. heard the commotion and inquired what was going on. Several of the employees at- tempted to tell Lane about Jimerson's advances and that they did not want to work with him. Lane re- sponded by telling those who did not want to work for Jimerson to raise their hands. When a number of them did raise their hands, he told them to either work tr Jimerson or "hit the clock." Shortly there- after he encountered Scarlett's sister, employee Betty Hasty. who also had participated in the protest against Jimerson. and told her that she and her sister no longer worked there and should leave.4 The dis- criminatees, including Scarlett. then left the floor with Lane telling them to get out and refusing to listen to any explanation. Later that same afternoon and again the following day, Scarlett and the other discrimi- natees returned to the plant to request their jobs back. Although supervisors are generally not accorded the protection of the Act, the Board and the courts have long held that discrimination directed against a supervisor constitutes a violation of the Act where it infringes on the statutory rights of emploees.? Thus, the Board has found the discharge of a supervisor to violate Section 8(a)( 1 ) of the Act when it was an inte- gral part of a scheme resorted to by an employer by which it sought to strike, through the supervisor's dis- charge, at its employees for their turning to protected 4 Respondent also discharged Pamela Richmond. an employee then on layff because she had participaled in the protest against Jimerson when she came to the plant that daN to pick up her check and inquire as to when she could return to work Respondent also discharged employee [)orothN Smith lor her part in the protest under the pretest that her w ork was unsatlisactory alladegn ( u,,to hIton. 1lt NlRB 295 1953). enild 213 2d 209 (15th ('itr 194). 246 NLRB No. 132 948 DOWNSIOPF IND) SI RIS. I(N'. concerted activities or to discourage their engaging in such activities. 6 Here the facts establish that on two occasions be- fore the work stoppage occurred Scarlett had in- formed Lane. who was both Jimerson's and her supe- rior, of the employees' grievances concerning Jimerson's improper sexual advances towards them. At the second of these meetings Scarlett told Lane that she was not worried about herself hut that she was concerned about the other girls. These efforts were to no avail. Consequently, on September 22 the employees decided that they would not start work that day until Lane heard their complaints against Jimerson. On that day, before 7 a.m. when work was due to begin, almost all the employees in Scarlett's department gathered around Scarlett's desk. Certain employees stated that they wished to talk to Lane about Jimerson before they began work that day. ust after the starting bell rang, Jimerson arrived on the scene and asked the employees why they were not working. Scarlett told him that the employees wanted to talk to Lane. Jimerson asked her why the employ- ees were not going to work. Scarlett replied that it was because of Jimerson's sexual harassment of the employees. When Jimerson then asked who, Scarlett identified certain employees, and two of the employ- ees identified themselves as targets of Jimerson's be- havior. Scarlett further referred to statements Jimer- son had made to her, including Jimerson's several threats to rape her, and at that point became so upset that she slapped Jimerson. Another supervisor and several employees, accompanied by employee BettNy Hasty, Scarlett's sister, took Scarlett away to another part of the building. Jimerson left the scene and went downstairs. At this point. Lane, having just arrived at the plant, heard the disturbance and proceeded toward the area about Scarlett's desk. When Lane appeared he refused to listen to the employees' protest about Jimerson. Instead, he told those who refused to return to work to "hit the clock." thereby summarily discharging them. At the time, Hasty and Scarlett were not present. However. when Lane met employee Betty Hasty returning to the floor, he immediately discharged her and told her that Scarlett was fired also, without stating any rea- son whatsoever. It is important to consider Lane's failure to state a reason, inasmuch as he had just ar- rived at the plant, had not witnessed any of the imme- diately preceding events, and thus knew nothing of Scarlett's behavior that morning. Thus, Respondent took immediate steps to terminate everyone con- nected with the protest against Jimerson and thereby 6See. e.g. Pneer Drlllhng (C. In, . 162 NlRB 918 (1967): Arch ,i,i King To 1a. Inc. 197 NIRB 462 (1972): l;dri, .\r rnl 1,,r,l. 202 NLRB 318 (1973). rid itself of all employees who to its knowledge had engaged in such protected actiit. In these circumstances. we find that Respondent's actions in discharging its emplosees were motivated hb a desire to discourage protected concerted activi- ties in general among its employees. Since Scarlett's discharge was contemporaneous with those dis- charges.7 and was in reprisal for her participation and support of the employees' protest.8 we find that her discharge was an integral part of Respondent's over- all plan to discourage employees from engaging in such protected activity and. therefore. was also un- lawful. In this regard. we conclude that the Board's decision in Fairview NuVrsing Homen, up.lra, is control- ling. In that case, the Board found the discharge of two supervisors who had signed union authorization cards was part of a pattern of conduct aimed at pe- nalizing employees for their union activities and was therefore in violation of Section 8(a)( I) of the Act. In the instant case. Respondent's action in discharging Scarlett was similarly part of a pattern of conduct aimed at penalizing employees for their protected concerted activity of protesting the conduct of Jimer- son and refusing to work until their protest was satis- factorilv heard. The Administrative Law Judge's and our dissent- ing colleague's reliance on Sibilio ' Golden Grill. Inc.. is misplaced. Sibilio'.s Golden Grill. In.. involved the discharge of a supervisor for advancing her own job interests and for siding with employees in their eco- nomic dispute against their employer. There. the dis- charge of the supervisor was motivated not b the protected activities of employees but rather bh her self-interests alone. Thus. there the discharge was not an integral part of a scheme resorted to by respondent bh which it sought to strike through the supervisor at its employees for engaging in protected activities. Here, in contrast. Respondent discharged Scarlett as part of a general pattern of conduct by which it sought to retaliate against its employees' protected concerted activities. Contrary to the dissent, the record shows that Re- spondent discharged the employees because of their protected concerted activity in refusing to work for Jimerson because of his harassment of them. On at least two prior occasions when Lane was informed of the employees' complaints about Jimerson. Lane took Our dssentlng colleague's argument that Scarlett' discharge was not contemporaineous ith he emplilsees' discharges is , ithout ,an hasis In falt Lane had Just then discharged one group of emplosees. when he discharged liast and her lstler Scarlett simultaneouslN, and then a r minutes later discharged Smith. Our ciolleague's temporal perspeclie is rreleIant ,o the esents here under examination. where onk a. tes minuites separaed ine's st;ltements. and no inlerxening e¢ents ot all sigfnificaInct , ccurred. " llhiugh Scairlett struck Jimeisn. Respondenl at no time hais contended Ih i Sc rlelt a.as dischiarged tor this coindluct 22' NI RH 1(,8 (11-7, 949 I)FECISIONS OF NATIONAL LABOR RELAT'IONS BOARI) no action against any of the employees. On the morn- ing that the employees engaged in their work stop- page to enforce their demand for a conference with Lane. however, Lane immediately discharged them. Clearly it was their protected refusal to work which moved Lane to fire them, and thus demonstrated Re- spondent's hostility to the employees protected con- certed activity directed towards improving their working conditions. With respect to Scarlett, the record is clear that Lane knew nothing of Scarlett's confrontation with Jimerson at the time Lane discharged her. Indeed, Lane gave no reason at all for discharging Scarlett. Since Lane was well aware that Scarlett had pre- sented the employees' complaints to him before, and that Scarlett had failed to suppress the employees' refusal to work for Jimerson, which was their Section 7 right to do, the most reasonable conclusion is that Lane fired Scarlett for not preventing the employees from engaging in their lawful Section 7 activity. Based on all the foregoing, we conclude that Respon- dent, faced with the Section 7 activity of its employ- ees, reacted immediately by discharging all those who engaged in such activity, and that Scarlett was in- cluded in the broad sweep of' its retaliation in Re- spondent's effort to eliminate completely all obstacles to its effort to discourage all such activity. Therefore, we find that Scarlett's discharge violated Section 8(a)(l) of the Act, and we shall modify the Administrative Law Judge's recommended Order and notice accordingly.' 0 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that Respondent, Downslope Industries. Inc. and Greenbrier Industries, Inc., Knoxville, Tennessee. their officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph I(a): "(a) Discharging or taking other adverse action against any supervisor or employee in circumstances constituting interference with or restraint or coercion 10 In passing. we cannot leave unchallenged the dissent's suggestion that by our decision here we "improvidently extend the Act's protection to super- visors by announcing that 'anytime a supervisor is fired in close proximity with employees who are found to have been unlawfully discharged under the Act the supervisor's discharge is also protected.' " The short answer to the dissent on this point is that the Board's I)eclsion in L & S Enterprises,. 245 NLRB No. 144 (1979). illustrates that while Board Members may differ on the legal significance of the facts of a particular case. neither the Board as an entity nor any of its members has ignored the explicit exclusion of supervisors from the definition of' the term "employee" under the Act. of employees in the exercise of their rights under Sec- tion 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer Thelma Jean Hoskins, Gloria Jean Hensley, Terry Lynn Johnson. Patricia Nell Murr, Vickie Karen Reagen, Helen Marie Scarlett, Dorothy Smith, Deborah Ann Steadman. Michael Steadman, Pamela Richmond, and Betty Hasty immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled 'The Remedy.'" 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER TRLESDALtE, concurring: I agree with my colleagues that Respondent vio- lated Section 8(a)(1) of the Act by discharging em- ployees for engaging in protected concerted activities. I further agree with the result reached by Chairman Fanning and Member Jenkins that Respondent addi- tionally violated Section 8(a)(l) of the Act by dis- charging Supervisor Scarlett. I agree with that result, however, only for the fllowing reasons. In essence, I subscribe to Member Murphy's state- ment of the appropriate principles to be applied in cases involving the discharge of supervisors, as ex- pressed in her dissenting opinions herein and in Nevis Industries, Inc.. d/bh/a Fresno 7lownehouse, 246 NLRB 1053, issued this day. In particular, the term "integral part of a pattern of conduct" as applied in cases involving the issue presented here must not be construed in an overly broad manner in light of the exclusion of supervisors from the protection of the Act. Thus, I agree that the finding of an 8(a)(1) viola- tion based on the discharge of a supervisor is properly limited, generally, to situations in which the discharge is part of a scheme to interfere directly with, or to clear the way for interfering directly with. the pro- tected rights of employees, or where the supervisor is discharged for engaging in conduct intended to pro- tect employees from interference and discrimination. See also L S Enterprises, Inc., 245 NLRB No. 144 (1979). However, I disagree with Member Murphy's con- clusion that the particular facts of this case do not bring it within those principles. As the majority here emphasizes, Respondent was aware that Supervisor Scarlett "had failed to suppress the employees' refusal to work for [Plant Manager] Jimerson. which was their Section 7 right to do ... " and "the most reason- able conclusion" to be drawn is that she was termi- nated "f'or not preventing the employees from engag- 950 I)DO( NSI ()P IND[)ISIRIIS. INC( ing in their lawful Section 7 activit .-' ('onsequentl . the majorit\ concludes, and I agree that Super,isor Scarlett was "included in the broad sweep of [Rc- spondent's] retaliation in Respondent's efiort to elimi- nate completely all obstacles to its effirts to discour- age all such [Section 7] activity."'' It is thus clear that Respondent's discharge of Supervisor Scarlett was part of a scheme to interfere directly with or to clear the way fo'r interfering directl) with. the protected rights of its employees and I. therefore, find that her discharge falls within the types of situations in which a finding of a violation is warranted. Accordingly. I concur in the majority conclusion that Respondent's discharge of Supervisor Scarlett was violative of Sec- tion 8(a)( I) of the Act. MlAIlR MI RPIIY, concurring in part and dissenting in part: By the decision in this case, I fear that this Board has once again taken a long and impermissible step toward expanding the National l.abor Relations Act to confer upon itself jurisdiction over supervisors which the Act precludes."'' In finding that Supervisor Scarlett's discharge violated the Act. the majorit is taking the untenable position that anytime a supervi- sor is fired in close proximity with employees who are found to have been unlawfully discharged under the Act the supervisor's discharge is also protected. In so doing. they are improvidently extending the protec- tion Section 7 offers to employees to cover the con- certed and union activities of supervisors. 2 Whether this result is desirable or not I believe it to be a pro- scribed one which takes congressional action, not de- cisional fiat, to achieve. In this case I would find, as do my colleagues, that the Company violated Section 8(a)(1) of' the Act by discharging employees for engaging in protected con- certed activities. I believe that the statute itself, how- ever, prevents me from agreeing with their further conclusion that the Company violated the same sec- tion of the Act by discharging Supervisor Helen Scar- H See also Puerto Rio, ,ia Pnrouctr. (Co.rp er a. 242 NLRB 99 (t1979L wherein the majority the panel dissented) held that the discharge of employees for protesting the termination of a probationary supervlislr was violative of the Act solely because the supervisor had obtained the confi- dence Iof the employees In his department by acting In their interest in var- ious respects and hence the supervisor's termination "had a direct impact on the employees' joh interests." As I pointed out in my epirate opinion there "My colleagues' finding that the protestors' conduct was protected has far-reaching mplications It establishes a presumption that hbs virtue ot su- pervisory status alone. an individual sufficiently impacts on emploes' working conditions to render protected any concerted mployee protests over said indsidual's selection. It thereby effectively sanction, every em- ployee protest over the selection of supervisory personnel. apparently even those urging the termination of a supervisor" See also my dissent in Ri/i-her 7birng Cointpani. 238 NIRB 44h (19781 12 Contrary to the majority. their protestation that Board decisions lI, other cases indicate that they have not ignored the explicit exclusion of superl iso.r from the Act's coverage does not refute my charge here that in this case their holding clearly etends the Acts jurisdiction to a upersisor .holly on the basis of the timing It the supernlsor's discharge to the discharge et ciplo, ees lett notwiithstalnding m s mi pa tl fo)r her plight. In tlct, all equities scream for Scarlett's reinstatement. Sexual harassment of women at work has been widespread and is of great concern to the women's movement and to others as well. Sexual harassment has taken many forms: the most blatant is the type found by the Administrative l.aw Judge to exist here. There is no doubt that the women employees who acted in concert to protest sexual harassment h the male supervisor here were engaged in protected ac- tivit. The discharge of these women employees was. thereflre. unla wful and iolali.e of Section 8(a)( I ) of' the Act. Tlhe same statutory protection cannot. I regret. he applied to Supervisor Scarlett's discharge because of her supervisory status. I sas this even though I obvi- ousl l do not condone sexual harassment of any woman supervisor or not. But although her discharge is inequitable and un- tair. she is a supervisor over whom the Board has no jurisdiction. Ihe Administrative Law Judge found., and I agree. that the Compan, discharged Scarlett fbr joining and fr acting as the principal spokesman fbr employees in a confrontation with the Company. I also agree with the Administramtie aw Judge's con- clusion that such conduct h az supervisor is not pro- tected under the Act no matter how appealing the contrary result may he and that, therefore, Scarlett's discharge for such conduct was not unlawful. '4 The Act in Section 7 protects. of course, only "em- ployee" rights: thus. Section 2(3) specifically excludes from employee status "any individual employed as a supervisor." Indeed, an individual so engaged is, un- der the interlocking statutory definitions, an employer in that such individuals under the Section 2( 1 ) defi- nition of a supervisor necessarily act "as an agent of an employer. directly or indirectly." Consequently. the majorit's extending the Act's jurisdiction to pro- tect Scarlett is quite simply extending the statutory protection of employee concerted activities to em- ployers a misadventure which the Board abandoned in Siilios (lden (Grill. is To he sure, the Board has fund in limited in- stances the discharge of supervisors to violate Section 8(a)( ) of the Act. But it has done so only where the " I he majorits. n answer to my dissent. states that "Lane fired Scarlett Ior not preventing the employees Irom engaging in their lawful Section 7 iactls it" If this were so. then we would hase a clear vlolatiin under cases such as ,umll (Mi l Crla Rotliling (o, mplani diha he H'esr ( wa (i Rottrlng ( ,nraul 140 NI.RB 1359 1963) Hloweser. that i not, as ndl- caled. what the Admini tralle I.aw Judge found and there is n basis for such conclusion aside from the outright speculation n ,which my colleagues hae enga;lgeJ m While I note that Mlember ruesdale tates n his concurrence to the majorit opinioln tha;t he subscribes t, m stitenmell of the approlpria te prin- ciples ti he applied in case in olv ig uper vi, r discharges, his cnstruc- lion ou the Iacl1 In this cise lead hilnl hlike the majorilty, to an errloneous and ullnlarranled result 227 N1 RB Ih68X 'i77) 951 I)('ISI()NS ()OF NI'I()NAI. I.AIBOR RII.AlIO()NS B()OARI) discharge of a supervisor was part of a scheme to interfere directly with, or to clear the way for interfer- ing directly with, c'mplovc s' protected rights' or where a supervisor was discharged for engaging in conduct intended to protect employees tfrom interfer- ence and discrimination proscribed by the Act. 7 TIhe majority here, and the Board in several recent cases,.' has, as explained below, misapplied the language of those earlier cases to situations it was not intended to and cannot lawfully cover. As a result, they do vio- lence to the statutory scheme and usurp the power of Congress. I feel compelled, therefore, to point out as force- fully as I can the error of their judgment concerning the termination of supervisors and the effacement of the statutory distinction between supervisors and em- ployees. The employees involved here-all women-were complaining about a male supervisor making "im- proper passes" at them, which means they were in what is here rather inartful Board jargon raising an "economic"---not an unfair labor practice issue. Scarlett, who had herself been subject to such ad- vances on the job by the male supervisor, listened sympathetically to the employees' complaints: pre- sented them on two occasions to higher management. and, getting no satisfaction rom those efforts, vigor- ously confronted the male supervisor concerning them during the course of the employees' protest of his lustful conduct. It is quite obvious that Scarlett's activity wits one of pressing the employees' "economic" complaint which was also her own- upon management. There is not one scintilla of evidence showing, or suggesting, that Scarlett was in any manner attempting to protect the employees from any conduct by Respondent which would be unlawful under the Act. Indeed, with respect to the unlawful mass discharge in this case. there is no evidence that Scarlett was aware of it until after it occurred. Moreover, there is no evidence that she protested the discharges or that her own dis- charge was in any way related to such a protest. Furthermore, it is quite clear that Scarlett's dis- charge was not part of a scheme to effectuate or to cover up the unlawful discharges of the protesting employees. On the record before us there is no evi- dence that her termination was intended to or in fact played any such role, a conclusion finding further support in the undisputed fact that her discharge fl- lowed that of the employees." it See. e.g., Kreb.s and King Thota, Inc, 197 NI.RB 462 (1972). " See, e.g., VA DA of Oklahoma, Inc., 216 NLRB 750 (1975). "8 See. e.g., Fairview Nuring Home, 202 NLRB 318 (1973). 19 The majority's attempt to obscure this point by stating Scarlett's dis- charge was "contemporaneous" with that of employees cannot change the fact that in reality it occurred after the mass discharge. Furthermore. in the total picture here this is not a crucial point, hut as explained later it does to some extent undermine the majority's rationale TIhus, as appears rom the above, the facts support one conclusion only: i.e.. that Scarlett was fired for siding with the employees and foir acting as their spokesman in pressing their and her own "eco- nomic" complaint against the sexual advances of the then new male supervisor. However, the majority in seeking to cast the pro- tective mantle of the Act over Scarlett's activities states that her discharge was unlawful as it was "an integral part of Respondent's overall plan to discour- age employees from engaging in protected activity." But there is no evidence of an such "overall plan." Indeed, there is no evidence that the employees were discharged to)r the purpose of discouraging their en- gaging in protected activity. Rather. insofar as the record indicates, their discharge and that of Scar- lett was related solely to their protesting the super- visor's improper conduct and the refusal of some em- ployees to work for him under the circumstances (rather than the concerted motive of the protest) 20 and to find in that discharge some purpose reaching beyond the immediate dispute is to go beyond the evidence in the record.21 Of course, that Respondent's action in fact interfered with employee's protected concerted activity renders it violatie of Section 8(a)( 1) without regard to motive. Also, as Scarlett was terminated after the mass discharge, i.e., after em- ployee concerted activity had been directly and effec- tively squelched, it borders on a on .sequitur to con- clude that she, a supervisor, was discharged as part of a plan to discourage the employees' concerted ac- tivity. Moreover. even if Scarlett were discharged to dis- courage emplo ee protected activity, her discharge would still not be unlawful.22 This consequence would necessarily seem to follow unless the Board is pre- pared to hold unlawful every termination of a super- 2~ See ALJ). sec. B.I, par. 2. first sentence 2 that the discharge of the emplosees was unlawful because of action which they took in cncert does not mean that Respondent was motivated bh the fact it s concerted and hb a desire t d courage the employees' engaging in protected activities generally. Here, the discharge appeared to be related solel 5 to the specific complaint inol ed and was thus no part of any hroad scheme, as suggested by the majorit , to deleat Sec. 7 rights. 22 lhe majority attempts to distinguish Sibilio', Golden Grill. Inc. 227 NIlRB 1688 (1977). on the ground that there the supervisor was discharged for adancing her interests and siding with the emploers. while here Scarlett was discharged in retaliation for the emplosees' prtected actiities. The majority's attempted distinction has no foundation in fact and is clearly erroneous In Sbihilo' the supervisor was the spokesman or the employees in an ecnomic dispute with their emplyer and was instrumental in a calling a union. She. like the employees. was discharged for raising the economic dispute and walking ut over it. The Administrative LIaw Judge found that the supervisor was discharged for the same reason as the employees and. consequently. found the iolation The Board reversed on the ground that the supervisor's Sec 7 type conduct was not protected by the Act. In the instant case, Scarlett. as the supervisor In Slhilio'. was the spokes- man in raising an "economic" issue concerning herself and the employees, and like the latter was discharged for her participation in the protest. Thus, her situation is indistinguishable from that o f the supervisor's in Sibilio', and the result there is clearly cntrolling here. 952 I)OWNSI.OPF INDI)LSI RIS. IN('. visor for joining with or representing emploNees in concerted activities. But this would extend the protec- tion of the Act to supervisors' concerted activities and thus effectively erase, at least tfor many purposes. the statutory distinction between supervisor and em- ployee. To repeat: The discharge of a supervisor is unlawful under the Act where it is a means to fcili- tate a direct violation of employee statutorN rights: it is not unlawful where. as in the present case., the im- pact on employee rights is only a spillover effect from the action taken against the supervisor. ' Past cases make this distinction in their facts: their language. i.e., "integral part of a pattern." has unfortunately created ambiguities in several instances. The Board appears to have used the "integral part of a pattern of conduct" language first in Key W 'est Coca Cola Bottling Compan.r, supra,' there it found a supervisor's discharge unlawful because it was aimed at penalizing employees for their union activities and ridding the plant of union adherents. (140 NLRB at 1359.) But there management, in order to be rid of the union, ordered its supervisors to discharge union adherents and replace them with new employees. One supervisor refused, or at least failed, to cooperate in this unlawful "pattern of conduct" and for that rea- son was discharged-and. as the Board subsequently found, unlawfully so. But the supervisor was not him- self engaged in union or other concerted activities; he was thus obviously not discharged for such reason: and there is nothing in the case remotely to suggest that his discharge for such reason would have been unlawful. Similarly, in Buddies Super Markets. 223 NLRB 950 (1976). enforcement denied 550 F.2d 39 (5th Cir. 1977). a supervisor's discharge was found unlawful as part of an unlawful scheme, for there the supervisor--again not himself engaged in anv union activities -warned a union activist that management was planning to set him up for a discharge because of his union activities. In Pioneer Drilling Co., Inc., 162 NLRB 918 (1967). the Board. using the "integral pattern" rationale, found the discharge of two supervisors unlawful as their discharges were in effect used as a pretext for discharging employees for their union activities. To be sure the supervisors had signed union cards, but the Trial Examiner, whose decision the Board adopted. carefully pointed out that the supervisors were not discharged for such reason, and there is nothing in that case supporting any conclusion that the discharge of the supervisors for signing cards " Obviously. ever, discharge of a supervisor or ans other individual for engaging in job-related concerted activities is going to have a tendenc to discourage similar employee aclirtil. Thus. the presence of such spilloer" effect is cleari, not enough to find said discharge unlau lul. unless the Board is prepared to revise in effect the lnguage of Sc 7 of the Act hich pro- tects. as of now. emplovee. not supervisor. rights , ith respect to concerted actilties would have been unlawful because of its tndenc\ to discourage employees doing so. See also Pioleer Drilling Co. In. v. N'.L.R.B.. 391 F.2d 961, 963 I I(th ('ir. 1968). where the court, in enforcing the Board's Decision with respect to the termination of the super- visors. stated "that tile Board found that P'ioneer's acts were not motivated b the pro-union activit of the supervisors but by that of the employees and thus the supervisors became not the object but rather a conduit of the emploer's unlawful acts." o the same effect is Kreh.s andi King Toy,ota. In-. ,upra. where the discharge of a supervisor was found unlaw- ful as an integral part of an unlawful pattern of con- duct where he was discharged. not hecau.se of any of/ his own union atiilty, but as a means to effectuate a decision to close the employer's body shop because of employees' union activities. None of the above cases supports a conclusion that the discharge of a supervisor for engaging in union or other concerted activity is unlawful because it is part of an attempt to get rid of all union supporters or because it will tend to discourage employees from en- gaging in protected concerted activities. However. in Fairieiw Nursing Home, supra, a majority, citing Key lest Coca C('ola and Krehs and King 7Toota, seized upon the "integral part of a pattern of conduct" lan- guage to support a finding that discharging a supervi- sor for engaging in union or other concerted activity is unlawful. But that is a clearly unwarranted and unrationalized extension of the quoted language. In- deed. it is quite contrar\ to the position of the Board and court in Pioneer Drilling where. as indicated above, they explicitly excluded the supervisor's own union activities as a relevant consideration in finding the company there engaged in an unlawful pattern of conduct. Consequently, the violation found in Fair- iecw Nursing has no sound basis in the cases on which it relies or in the statute. and is in essence a non sequi- /ur. Thus the reliance here on that case suffers from the same defects. In sum, there is. unfortunately in my view. no basis for the majority finding Scarlett's discharge to be un- lawful under the Act. I certainly would be among the first to commend her for confronting an individual whom I consider to he a miscreant- about his mis- conduct, though she no doubt overstepped proper bounds in striking him. I also believe she showed good sense and courage in vigorously taking the com- plaint to higher management. She surely dcserved the approbation and support of the emplo\ees and of all persons, who obviously did not include her superiors, concerned with fair and decent treatment on the job. Nevertheless, she was at all times a statutlorl .suqper- iisor, and thus in presenting the "economic" com- plaint on her own and the employees' behalf she was not entitled to the Act's protection. C'onsequently. no ')5 I)tI( ISIONS () NAI ()NAI I 1ABOR R A IONS BO()ARI) matter how inequitable or unfhir her discharge and again all the equities rest with Scarlett's being rein- stated and made whole for her job loss -and though it may be unlawful under Title VII of the Civil Rights Act of 1964. it was not, to repeat. in violation of the National abor Relations Act. as amended. as this Board has no jurisdiction over the flte of a supervi- sor's employment status in the fcts presented hb this case. A PPEN DIX No ll( li To E O11 (yi:iS PosID BY ORDER OF lit: NAII()NAI. LABOR RIi.AO()NS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Re- lations Board has found that we violated the National Labor Relations Act, and we have been ordered to post this notice and to abide by the following: Wli Wlll. NOI discharge employees because they concertedly protested the harassment given to them by their supervisor, or take other adverse action against any supervisor or employee in cir- cumstances constituting interference with or re- straint or coercion of employees in the exercise of their rights under Section 7 of the Act. WE wII.I. Nol in any other manner interefere with, restrain, or coerce our employees in the ex- ercises of rights guaranteed them under Section 7 of the Act. Wi wILI. offer Thelma Jean Hoskins Gloria Jean Hensley Terry Lynn Johnson, Patricia Nell Murr, Vickie Karen Reagen, Helen Marie Scar- lett, Dorothy Smith, Deborah Ann Steadman. Michael Steadman, Pamela Richmond. and Bet- ty Hasty immediate and full reinstatement to their former jobs or, if those jobs no longer exist. to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. and wt Wt.ii. pay them for the losses they suffered as a result of their discharges. plus interest. (GRIHINBRIItR INI)DSIFRIIS. IN(. I)Os'NSI.)OPEI NI)t SIRIIS. N(. E(C ISION SI r: It NI (t 11 (riL CAS: Jt ir s (OIN, Administrative Law Judge: This case was heard in Knoxville, Tennessee. on Februarv 23 through 25 and March 10. 1977. Upon a charge filed and served Octo- her 12. 1976, the Regional Director tior Region 10 issued a coiplainl on Nocimber 19. 1976. I hercatler. an amended charge was tiled and ser ed il i ehruar 9 1977. and an aimellded comnplaint issued on Fei hl uar 10I. alleging thai (ireenhrier Industries. Inc.. anld Downsope Industries. I l.. herein called Greenbrier and l)ow-nslope. respectivel . and collectivel sometinimes called Respondent. discharged II eniplo\ces because the3 had engaged in concerted aictvities with other emplo ees tfr the purposes of collective hbargain- ing and other miutual aid and protection. Respondent filed an answer densing the conmiission I untlfitir labor prac- tices. All parties were given tull opportunii to participate. to intrduce relevant evidence to ex;amine and cross-examine witnesses, to argue oralls. and to file brief. 'I he General C(ounsel and Respondent submitted briefs which have been carefully considered. U!pon the entire record in this case and from m obser a- tion of the witnesses and their demea nor. I make the follow- ing: FINDI)N(iS (): -A( I 1. J RISI)I( I I()N Greenbrier. a New York corporation. has an office and place of' business in Knoxville. Tennessee. where it is en- gaged in the manufacture of garments and equipment for the United States Governnlent. During the 12 months pre- ceding the issuance of the complaint. ireenbrier sold and shipped goods alued in excess of $50000 directl\ to pur- chasers located outside the State of Tennessee. The com- plaint alleges. the answer admits, and I ind that (ireenbrier is an employer engaged in commerce within the meaning of Section 2(6) and 7) of the Act. Downslope is a corporation with an office and place of' business in Knoxs ille. ennessee. where it is engaged in the manulacture and sale of' ski garments. [)uring the 12 months preceding the issuance of' the complaint. Down- slope manufactured, sold. and shipped products valued in excess of $50.(XX) directls to customers located outside the State of Tennessee. The complaint alleges. the answer ad- mits. and I find that Downrslope is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. T'he complaint also alleges that, with respect to the em- plosees involved and the unfair labor practices alleged. (ieenbrier and Downslope constitute a single employer. Both ('ompanies are located in the same building in Knoxville: D)ownslope occupies the street level. Greenbrier the top floor, and both use the basement or a shipping and receiving department. The office is located on the first or street floor. and its itcilities are share(l b both Companies. two clericals employed by (ireenbrier and two b Down- slope are located in the single office. Downslope manutac- tures down-filled ski garments for the private sector, while ireenibrier is engaged in go,,ernment contract work and was, during the course of these proceedings. manufacturing bulletproof ests and chemical wartare suits. The headquarters of both Companies are located in the same building in New Jersey. Howard hier is president. Martin anle is vice president. and Carl Tlhier is secrctars- treasurer: thes are also the directors and shareholders of 954 DOW'NSI.()I'I IN)t SI Rlt S. N( (ireenbrier. The principals of' I)o nslope are M;lartin oniLg and Jeronme lFisenberg: the latter. an attornie. is a child- hood friend of ';Carl Thier and has sersed as coulnsel and legal adisor to G(reenbrier. The General ('ounsel's contention. with respect to the single emploer allegation. is derived mainls fromn the posi- tion and authority of' Robert Lane. uho is plant manager in Knoxville of' Downslope and adnmitedlN "consulting' Inan- ager of Greenbrier. l.ane. also refrred to as acting plant manager of' (reenbrier. is the ither of1 Martin I ane. (ireenbrier's president. Greenbrier has hatl a series of' plant managers and, during the intersals of their coming and going Lane has served as acting planit manager. In this ca- pacitN. he designated tlelen Scarlett. one of the alleged dis- criminatees herein. as supervisor of (ireenbrier's sew ing op- eration. Not only did he appoint her. hut she was required to report to him. He had daily contact with her and the other Greenbrier employees bh visiting the upper floor and checking on the work that was being done. It was also I.ane who first interviewed David Jimerson 1or the job of' plant manager and referred him to Thier. In addition. as will he seen in greater detail hereinafter I.ane was involved in the events of September 22. 1976. which led to the separation of the employees involved herein. Emplovees of (;reenbrier who testified for both the General Counsel and Respondent agreed that l.ane was the "boss" of' (reenbrier as far as they could determine. It was l.ane's secretar. Mc('ullah. a Downslope employee, who prepared and distributed termi- nation notices dated September 23 to the alleged discrimi- natees herein. Despite the lack of common ownership. the two ('ompa- nies do have certain obvious relationships such as the same location for their headquarters' offices. the sharing of office space and shipping facilities at the Knoxville location. in addition to personal ties. However. most persuasive with respect to this issue is the role of' Rohert I.ane and his ohi- ous exercise of superv ision over employees of both Comlpa- nies on a day-to-das basis. Although the witnesses diflered regarding the amount of time Thier spent at the Knoxv ille plant of' Greenbrier. it is clear that he was not there all the time nor was any other officer of Greenbrier present al all times. It is Lane who resides in Knoxville and is at the plant all the time and. since he admittedly appointed supervisors for Greenbrier. checked up on the work. and Wras involved in the hiring and firing of employees and ultimatels in the termination of' the alleged discriminatees he exercised con- trol with regard to employee relations. The Board has held that. when managerial control is exercised over two compa- nies by the same individual or individuals. they constitute a single emploer within the meaning of Section 2(2) of' the Act. Saoltrta RBu Srvice. Inc., 210 NLRB 63 (1974). find therefore that for the purpose of' this proceeding (;reenbrier and D)ownslope are a single emploer. 11. lIll \1 I t:(;ll) tN AIR I AB R R ( I11 S A. lair l't In approximmatel Jlune 1976 (reetibricl started mntilufic- turing a chemical arfare unit under a (Government con- tract. This was during a time when (ireenbrier was betw een plant managers and wa;ts looking for one. According to Roh- erl 1.ine. he colmmlllced the na;nulltlirllg o1' the stilt id decided to designate I elen lohnnie) Scarlett is super\ isor os.er the swillg operatlonlls O1 this contracl. As supcrs isor. Scarle ll hied a number ol mplo\ees. including mi.in of' those nsoled in this proceedilng. is operatrs. \hbout the end of ALIugust. in response to an a;itldrtlsement in the traide papers. DI);id .limerson pplited ifor the position of' plant manager. ltie first communicated ith Rbert I.tne wAho. alfter slpeiking to him prelimia;iril. suggested that .li nerson call ('arl hier in New Jerse.- As a result. Jimerson met with hier and Lane atll Knoxille and aft'ler anll interie. during which Jimerson as conducted through the plant and introiduced hb 'hier to the supervisors, including Scar- lett. Jilmerson as hired as plant manager to conlllterce working on September 13. Within it very short time rumors and talk were rite in the plant. according to the testimony of not onls the General ('ounsel's witnesses but also some of the i tnesses lor Re- spondent. that Jimerson w as engaged il making adsances or '"passes." both erhal and phsica. toward the emale emplos ees. Bett I;Ilast. a [)ounslope emploNee who uorked in tle shipping department in the basement. met Jmierson on her biya hback from the cafeteria after lunch on September 15. .\t that time Jimerson hegan talking to her, relating sonie- thing humorous to indicate his sexual prouess. 'Ihe I'olo- ng morning she as on the third floor near Scarlett's desk hetiore startinig ork, when Jimerson came oer to her and handed her his motel key. She asked what that was tor. and he did not respond, so she just walkcd awa.; Doroths Smith stated that she first met Jimerson shortl\ atter he cale to the plant while he uas going arolund look- ing at the different machines. lie calme over and introduced himself. telling Smith that he Uot ld he helping Scarlett on the contract and lie ,as there to see that the work canme out all right. Sometime later he came back to her machine and stood behind it over her hack. Smith said Jimerson was breathing oer her neck and at the same time telling her that it wias hard for him to sleep in the motel roonm b himself and get up ever! morning and look at all the women in the place. Smith stated she turned her chair around to fce him and said that she was not availahle and asked him to move. le did this and did not say an thing more to her Smith reported this incident to Scarlett. telling her that. if Jimerson came up behind her again she w ould take matters into her own hands. Smith further testified that she heard ti other employees talking about Jimerson's con- Patrici; NMurr, the (harging Parts herein. testified that she first met Jimerson on Tuesda. September 14. ()n ri- dilx of thait eek she sasi h;la ing difficult, uwith her machine andt asked Jinerson to come over and fix it. lie said he ssould be there i a minute. She had been sitting t the machine but pushed her chair back in order to let him in. Instead of conling around her machine. imnerson leaned .tcross her shoulder andl rubbed his h!od on her shoulder. cR ,in-deni urgc, t t.a 11.,. I),a D n lp. ra . pl c hd m. hu ile hwing p n the third fllor lto eer. the rcord is clear thalt lotl nl 'he hut a1l1 her uperxls*r. Cooper, u., ho ad he k; t, the hippng rm. .is al., ;tlnlsl .i, on the hird ft1,r drinki,i cotlee helor hc .e ,,rkda, beg.n I)t:('ISIONS OF NATIONAl LABOR REILATIONS BOARI) Murr stated she was going to hit him and drew her arm hack for that purpose hut then he left. D[eborah Steadman. an employee who worked at a machine about 12 feet from that of Murr. said that she was able to observe Murr be- cause there were vacant machines between them. She said that she happened to look up and saw Jimerson bending over Murr and then also saw the latter bring her elbow back and he then backed off. Immediately after it hap- pened, Murr came over and told Steadman what he had tried to do and stated that she was scared. Steadman says that she told Murr to speak to Scarlett about it and then went back to work. Steadman further stated that prior to the Murr incident. while standing at a table with an inspec- tor, Jimerson came behind her and she felt him breathing on her shoulder. Steadman said she screamed and Jimerson thereupon jumped back; he did not say anything but just turned around and walked off. Pamela Richmond, who had been employed as an exam- iner, stated that on Sunday, September 19. she received sev- eral phone calls at home from Jimerson. On the preceding Thursday he had asked for her telephone number, saying that he wanted to talk to her about her work. He admon- ished her about telling anyone, particularly Hasty or Scar- lett, that he asked for the number, saying that he only wanted to talk about working conditions. On that Sunday he called her all morning and finally, about noon, she spoke to him. He asked her to come to his motel room because he needed to talk to her about work. She then told him he could talk over the phone, but he said he needed her there. As he kept talking. she was able to send someone to get her neighbor. Betty Hasty, to come over and listen on the ex- tension. Hasty did and corroborated this conversation. Richmond also mentioned these calls to Scarlett. The fol- lowing day Jimerson approached her at work about 3 p.m. and told her he had to talk to her before she left. At the end of the workday she was walking to the door with Hasty when Jimerson called her over and told Richmond that she was going to be laid off until the situation between them was straightened out. Richmond asserted that another in- spector had come to work a few days before and the two of them were the only inspectors. Richmond returned to the plant on Wednesday, September 22, at 7 a.m. to see about her check and when she would be recalled to work. Scarlett testified that on Sunday, September 19. Jimerson came to her home about 10:30 p.m. She said that she had just come out of' a shower when her son told her that a David. who worked with her, was at the door. Scarlett opened the door with the chain on it and Jimerson talked to her in that manner, saying that he had the impression that she felt he was trying to take her job. She told him no and that she did not want to discuss it with him. lie said he wanted to come into her house, and she replied he could not because she was not dressed. Scarlett said that Jimerson appeared to have been drinking and became angry and told her he wanted her to go down to his motel and discuss it. She said there was nothing to discuss. Jimerson kept on talking and said that Scarlett was a good looking woman and he knew she was lonely. ie insisted on taking her phone number and said he would call later and then left. lie did call later and told her he wanted her to come down to his motel room to discuss problems. She said she did not want to talk to him. and he said he was going to rape her. In the course of' the conversation, he also accused her of' going to bed with L.ane. On Monday, September 20(). Scarlett was paged to report to l.ane's office. Jimerson was there and apparentl5 had hold .ane that Scarlett thought he was trying to take her job away. As a result. Lane told her she was to do what Jimerson told her to do on the floor and take instructions. According to Scarlett, she told ane that she would listen to what Jimerson had to sa 5. but would not go to bed with him. After Jimerson left, she talked with Lane about the problem upstairs created by the abuse that Jimerson was putting on her girls. She stated that she told L.ane what was involved and gave the names of the employees who had complained. Lane's response was to say that she was a big girl and could take care of' herself and she should go up- stairs and go to work. Lane also told her that she would have to work with Jimerson as a team. Later that day. Jimerson asked Scarlett what she had been telling Lane, and she said she had only told him the truth. Jimerson said he was going to rape her whether it was inside the plant or outside. The following morning. Tuesday. she went again to see Lane. No one else was present, and she related the same thing about Jimerson as she had on Monday. Lane told her that Jimerson was a woman chaser and was only human. Scarlett stated she told Lane she was not worried about herself; but was about the other girls. Lane did nothing about this. Later that day. she told some of the employees that thev would have to talk to Lane themselves because he was not believing what she was saxing. On September 22 before work was due to commence at 7 a.m., almost all of the employees who worked in Scarlett's department were gathered around her desk.? According to many of the witnesses (including some of Respondent's), certain employees. including Hensley. Deborah Steadman. and Murr, expressed their desire to talk to Lane about Jimerson before they began work that day. A number of them, more particularly 1Henslev and Murr. said that they did not want to work under Jimerson because of the ad- vances that he was making. At that point Jimerson came upstairs and, the bell having just rung. asked the girls why they were not working. Scar- lett told him that the girls wanted to talk to "the old man" (I.ane). When Jimerson asked why they were not going to work, Scarlett said "because of the passes and the insults that you have put upon these girls." According to the testi- mony of' Jimerson himself'. he then asked who. He further testified that Pam [Richmond] said "me" and then three or four more people responded. Scarlett mentioned Smith's name, at which point Jimerson said "Who. her?" and Smith spoke up "Yes. me." Richmond then said that Jimerson had called her all that day Sunday. Scarlett said Murr had been subjected to advances by Jimerson and Murr stated. "Yes. you did." I'hen Scarlett referred to certain other things he had told her, and with that, Scarlett shouted "and don't you call me a liar" and struck Jimerson. John Cooper, the ship- ping supervisor, and several of the male employees such as Michael Steadman. Gene Miller. and Rod Collins took ' Included in the group were Pamela Richmond who,. as previoussl noted, ca;me up hat morning to, inquire aout her paycheck. and etty liasiy. the Downslope shipping employee who, as also noted. usually spent some time in thai icinitN before starting to work. 956 I)OWNSI)P ' IN)t S RIFlS. N( Scarlett hack to the machine shop at the rear of the sewing floor. BetI Hast). Scarlett's sister, went back there with them. In the meantime, Jimerson left the floor and went downstairs. At this point, according to Robert l.ane, he had just ar- rived at the plant. On hearing voices and a disturhance on the upper floor, he went up there immediatel anid noticed a lot of commotion and people standing around Scarlett's desk. I.ane asked what was oine on. Jean Hlensley started to tell him that Jimerson had been making passes at the girls and that they did not want to work under hirm. Rich- mond spoke up and stlated that Jimerson had been calling her at her home and Murr also stated what timerson had done to her. Lane asked Richmond whether she had gone to Jimerson's motel room and when she replied "no" he said there is no problem. lie told her. "You're not a bab.- Lane asked if they wanted to work with Jimerson. and Hensley replied no. He then asked all those who also did not want to work for Jimerson to raise their hands. When a number of them did raise their hands. he told them to either work for Jimerson or "hit the clock." About this time. Betty Hasty, who had been in the ma- chine shop with her sister. Scarlett. was returning to the floor. ane met her and asked what she ,as doing there. and Hasty replied that she had gone back to see how her sister was. Lane then told her that she and her sister no longer worked there and she should leave. At that time also. Iensley had gone hack to the machine shop to tell Scarlett that they all had been fired. She then returned with Scarlett to the floor, and all of the alleged discriminatees picked up their timecards (which the) had been told to do by John Sewell, a maintenance man) and, with the exception of Dorothy Smith. left the premises. I.ane followed them downstairs and kept urging them to get out and leave the premises. Dorothy Smith. as noted, did not leave the floor hut re- turned to her machine. About 10 minutes later l.ane and Jimerson appeared, and Lane said they were laying her off' for a couple of days because there was not enough work. Smith replied that she had been the only one sewing pants and there was enough work for her to last 3 months. There followed an argument during which Smith accused Lane of racial prejudice (Smith being the only black person in- volved in this proceeding). According to Smith. L.ane then told her she was the main cause for the disturbance and that she had incited people to walk out. Thereafter. Smith left the plant. Later that afternoon. Smith and all the other alleged dis- criminatees went back to the plant. TheN asked Lane for their jobs back, and he replied that they did not have jobs there any more. They also asked for separation notices which Lane told them were not available. The next day the alleged discriminatees again returned to the plant. and this time Respondent did give them separation notices. The no- tices received by Smith and Richmond stated the' were laid off for unsatisfactory work. As to the others, Respondent reported that they had quit, having walked out with their supervisor. Shortly after the incident of September 22 and during the same morning. Jimerson spoke to Thier b) telephone and informed him hat he was lealing to return to his ormler job as his s;lt alion at Respondent was no( embarrassing. By 10) a.m. that morning Jimerson was one. 'I he oregoing account is based on a s nthcsis of the tes- timnini of the m;in\ w itnesses who appeared in this pro- ceedin. (ienerally. I have credited the estimoniv of the (ieneral ('onsel's witnesses as being more consistent. de- spite the fact that there were some minor discrepancies as ,will often occur when different people are observing the saire incident. On the other hand, the testimlon' of several of Respondent's witnesses was contradictors, as will be seen hereinafter. With respect to the conduct concerning the sexual ad- vances and "passes" attributed to Jimerson the latter de- nied these allegations. I found Jimerson to be a somewhat reluctant and truculent witness, as well he might be under the circumstances. Nor was I impressed with his luke arm denials when something more forthright and ringing would normally have been expected. In addition to the direct tes- tinl`on of' witnesses for the General ('ounsel concerning Jimerson's conduct toward them specifically. there u as a good deal of testimony from witnesses. including some of Respondent's. that the employees in the plant were aware of Jimerson's activities along the lines described and that in a short period of time he had acquired a reputation for these proclivities. This is not only supportive of the direct testimnon of the complaining witnesses but also hcas il de- tracts fromn the theorN advanced by Respondent that Scar- lett and her friends were engaged in some sort of conspiracx to rid themselves of Jimerson's supervision by concocting the series of events to which the) have testified. I do not credit the account rendered by Robert I.ane of the events which occurred on September 22 when he came up the (ireenbrier floor to inquire as to the nature of the disturbance. Lane insisted that when he went upstairs and saw the people gathered around Scarlett's desk, she herself was standing there. lie stated that Scarlett informed him she quit as of' that moment and her people quit along with her and that she in fact said, "These girls are quitting with me." T'his \,ersion is not only contrary to the testimon of the witnesses for the General Counsel but also runs counter to the testimony related by Respondent's own witnesses. For example, Downslope Supervisor Cooper and Green- brier employee Virginia Miller both stated Scarlett was in the machine shop at the time Lane came up and spoke to the employees gathered around Scarlett's desk. At another point in his testimony. Lane admitted that the girls had complained concerning the advances made by Jimerson and he also concedes telling Richmond that she was "a big girl." This lends further credence to the testimony of the General Counsel's witnesses that the were in fact COnm- plaining to I.ane concerning the treatment of them by a supervisor. Jimerson. In this connection, ane said that, while he did not remember Patricia Murr talking to him about Jimerson, he did recall that the group around the table kept yelling and screaming and accusing Jimerson of making advances, but he could not pick out the names of the particular people. Finall. I do not find credible the testimon> of Jimerson Lane, and Thier with respect to Jimerson's departure from Respondent's employ, a scant 2 hours after the incidents of September 22. Jimerson told Thier he was leaving because 957 I)8(1ISIONS ()1: NA'I IONAI IABOR RLATIONS BOARI) of the embarrassing situation created that morning and re- turning to his prior employer who had communicated with him and asked that he come back to his old job. But Re- spondent has urged that Scarlett. unwilling to take orders from Jimerson, merely quit and the other alleged discrimi- natees, being her relatives and friends, went along with her. Respondent adduced testimony to the effect that at a prior place of employment Scarlett. then not a supervisor. quit when the plant manager there was discharged, and took a number of other employees with her to work in the dis- charged plant manager's new business. Respondent's con- tention that Scarlett and her followers merely quit is at cross purposes with Jimerson's testimony that one problem he was encountering in his job at Greenbrier was his inabil- ity to obtain the cooperation of the floor supervisor, Scar- lett. If Scarlett had quit, then the source of uncooperation and irritation in the operation at the plant would have been removed. Assuming, as Jimerson averred,. that he had not engaged in the conduct complained about, he would have no need to be ashamed or embarrassed, the atmosphere should have improved, and Jimerson's hasty exit would not have been required. Moreover, there is no other evidence that he had received an offer to return to his prior employ- ment as he alleged. In this regard, it is noted that at the time of the hearing, just several months after his departure from Respondent, he was employed by still another em- ployer. B. Discussion and Anal'sis I. The activities of the alleged discriminatees Section 7 of the Act guarantees employees the right "to engage in . . . concerted activities for the purpose of... mutual aid or protection," and Section 8(a)(1) forbids em- ployers "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." As dis- cussed above, Respondent contends that, on the morning of September 22, Supervisor Scarlett quit work because she was unwilling to submit to orders from Jimerson, and the other alleged discriminatees quit in loyalty to her. It has, of course, been held that concerted conduct animated by per- sonal hostility toward a supervisor, and not designed to set right working conditions in which employees are genuinely and legitimately interested, is not protected by Section 7.? However, I have rejected this contention of Respondent and, while it may be true that Scarlett and perhaps some of the other employees resented the imposition of Jimerson over Scarlett and perhaps were even upset with the type of scrutiny and supervision given them by Lane himself, I have found that these were not the reasons for the activity of that morning. The evidence clearly points to the fact that the refusal to commence working at 7 a.m. that day was for the purpose of communicating to Jimerson himself and Lane that the employees no longer wished to work under the sexual harassment and abuse meted out to them by Jimerson. There can be no question that a supervisor mak- ing sexual advances to employees on the work floor creates a condition of employment about which employees can ]('leaver-Brolis Mfg ('orporauion v. N .R B. 264 F2d 637 7th ('ir 1959). concertedly protest for "mutual aid or protection." [s en the ofi-premises conduct of Jimerson, such as the telephone calls to Richmond on a Sunday, were work related since Jimerson insisted that he wanted her to come to his motel in order to discuss the job. The Board has held that employees engaged in protesting the selection of a supervisor are pro- tected.4' It certainly is a much more compelling situation where employees are actually subjected to physical and ver- bal harassment after a supervisor has been already em- ployed, as is the situation here. But assuming. as contended by Respondent, that the employees were protesting the ap- pointment of Jimerson over Scarlett as well as protesting the manner in which supervision is exercised, such activity was found to be protected by the Board in Le.slie Alcal Arlt ('ompatnv, I1(., 208 NLRB 323 1974), enfd. 509 F.2d 811 (6th Cir. 19 7 5), a case referred to by Respondent. Having found that the alleged discriminatees were en- gaged in protected concerted activity when they protested the advances made by Jimerson to certain of the female employees and indicated their refusal to work for Jimerson under these conditions I further conclude that ane dis- charged them by directing the employees to "hit the clock" after they had signified by raising their hands that they were unwilling to work fr Jimerson. Despite the protesta- tions of Respondent that neither ane nor anyone else in authority told those employees that they were "dis- charged." "terminated." or any other such expression, I find in the circumstances that the use of the words "hit the clock" to be an effective euphemism for the same thing. My finding is reinforced by the uncontroverted evidence that the alleged discriminatees returned that afternoon, sought their jobs back, and were told by Lane that they no longer had jobs with Respondent. In a recent case, Uniled Mer- chlanls and Matnuiwlurers. In . . I. R.B., 554 F.2d 1276 (4th Cir. 1977),' the court found that employees who disre- garded an employer's request to resume working or leave after they' had engaged in a concerted work stoppage to protest the discharge of two fellow employees were effec- tively discharged in fact by the employer. In that case the court said, "We give no credence to the employer's argu- ment that Beska's choice of the word 'terminate' was merely an inappropriate choice of words to convey the thought that the employees would be replaced so as not to create disruption in the employer's business." It is clear that it is not the exact use of the words by the employer that is controlling but rather the thought conveyed to the employ- ees that they were effectively discharged. Similarly, as in the instant case, the court noted that, when one of the discrim- inatees therein initially sought to return to work, she was refused. Accordingly, I find that Respondent violated Section 8(a)( I ) of the Act by discharging, because of their protected concerted activity, Thelma Hoskins6 Gloria Jean Hensley. Terry Lynn Johnson, Patricia Nell Murr, Vickie Karen Reagen, Deborah Ann Steadman, and Michael Steadman.' 4Cubt Sstem (rprrulan, 194 NLRB 622 (1971 Enfg. 223 NLRB 689 1976) , Hoskins was the onl) one oi the discriminatees named in the complaint who did not attend the hearing Hlowever. he evidence is uncontradicted that she was one if the emplovees eho took part in the act\viyl and was discharged by Respondent. 'The status of Smith, Richmond. and asty, and Scarlet will he sepa- rately discussed. 958 DOWNSI.OPI! INDUSlRIES, IN(C 2. he discharge of l)oroth? Smith Smith testified that she was one of the employees who raised a hand to indicate not wanting to work under Jimer- son, hut she returned to her machine rather than leave with the rest of the employees. Later. I.ane told her she was being laid off for a couple of days because of lack of work. Smith stated that Jimerson was with lane at the lime a fact corroborated by Jimerson himself. There ensued an argu- ment in which Lane accused her of being one of the main causes for the disturbance. Later that day she returned with the rest of the alleged discriminatees requesting their jobs hack and she was again turned down by L.ane. In his testi- mony, Lane merely identified Smith as one of the girls who had walked out and accused her of having used abusive language toward him. ie denied telling Smith she was fired for inciting the girls, nor did he accuse her of being the cause of the disturbance. Once more Lane cannot be cred- ited in the face of the testimony of one of Respondent's other witnesses. Dorothy Jenkins, an employee who testi- fied on behalf of Respondent. said that Smith went down with the others but came right back up and went to her sewing machine. Jenkins further said that Lane went back over to her and "he told her that she had been terminated." The separation notice furnished to Smith on September 23, unlike most of the others, indicated that she had been laid off for unsatisfactory work. This is inconsistent with Smith's statement, which I credit, that she had been told that she was laid off flr a couple of days because there was not enough work. There was no evidence showing that there was not enough work for Smith or that she was not the only person working on pants. Nor did Respondent show in what manner Smith's work had been unsatisfictors other than a few complaints at the outset of her emplo,- ment, or why she was not rehired when she applied for employment in response to an advertisment 2 weeks ater her layoff. In all the circumstances. I find that Smith, one of the principal complainants, had been terminated because of her participation in the protest concerning the conduct of Jimerson. Accordingly I find that Respondent violated Sec- tion 8(a)( 1I) of the Act by discharging Smith on September 22. 3. The discharge of Pamela Richmond According to Richmond. Jimerson laid her off at the end of the workday on Monday. September 20. telling her that she was being laid off "until they could get things straight- ened out between them." She stated that she came into the plant at 7 a.m. on Wednesday. September 22. in order to pick up her check and inquire as to when she could go back to work. Jimerson testified that he remembers firing an in- spector under instructions from Thier and Lane. Ihe sepa- ration notice which she received on September 23. along with the other employees. was different from most in that the reason given for her separation was "laid off unsatis- factory." In addition, unlike the other notices which stated that the last day worked was September 22, Richmond's notice states that her last day was September 21. Respon- dent did not offer any explanation for the discrepancy in dates although it is clear that the last day Richmond worked was September 2). Nor did Respondent explain why Richmond did not receive a separation notice on Sep- tember 20, her last day of employment. particularly as her discharge allegedly had been discussed and directed seeral days prior to that, according to the testimonv of I hier and Lane. Moreoxer. if Richmond had been discharged on Sep- tember 2). it is difficult to understand whs she was not given her separation notice when, along with the other em- ployees. she requested it on September 22. On the basis of the credibility resolutions made above. I ind that Rich- mond was in layoff status after September 20 and that Re- spondent discharged her on September 22. As Richmond was clearly a principal complainant against Jimerson and a participant in the protest on September 22. I conclude that Respondent discharged her on that date in iolation of Sec- tion 8(a)1I) of the Act. I find no merit in Respondent's contention that her appearance at the plant so early in the morning to obtain her check somehow clouds her motiva- tion. Apparently. this is offered in support of Respondent's conspiracy theory noted above, which I have found not to be sustained by the evidence. 4. The discharge of Betlt Hast, I have previously found that I.ane, encountering Hiasty on her way back from the machine shop to the point where the other employees were gathered around Scarlett's desk. told her that she and her sister. Scarlett. were no onger employees and were fired. asty received on September 23 the same notice given to most of the employees to the effect that she had "quit" and walked out with her supervisor. Although Hasty was not among the group of employees who were asked b I.ane to raise their hands. clearly she was associated in his mind as Scarlett's sister, and since she was present on the third floor and had just returned from seeing her sister in the machine shop. ane included her with the group of employees who were protesting Jimer- son's conduct. aving alreads found that Downslope. for whom Hasts worked. was a single employer with Green- brier. I further find that Respondent violated Section 8(a) 1) of the Act by terminating Hasty on September 22 because f her participation in the protest against Jimer- son's conduct.' 5. he status of Helen Scarlett The issue presented is whether Helen Scarlctt. an admit- ted supervisor, who took part in the protest and indeed was the principal spokesman in the confrontation - ith Jimer- son, is entitled to the protection of the Act. The Act makes it clear that an emploser may discharge or discipline a supervisory employee for engaging in union acti.it. However. in certain situations the Board and the courts have found circumstances which have led them to cloak a supervisor with the protection of the Act. 'Thus, In NV.I. RB. . T71lldegLa (Cotion Failon'. 213 F.2d 209 (5th (ir. 1954). the court enforced a decision of the Board w hich As presiusl ntled. I find no meri to Respondent's contentnlln ihat Iast;N, .is ntl properi? present n the third itoor at the time. Superslsir (tCooper !.so testified that 2 da~s alter her discharge he nmel Ila .is and in- formed her hat it wis oka with ane for her to return to Lork According to Hlast (Cooper called her that night ard said thait ane changed hi, mind I)E('ISIONS 01 NAIIONAL IABOR RATIONS BOARI) found that the company violated Section 8(a)( 1) of the Act by firing supervisors who refused to commit an unfair labor practice. In a later case, Oil (Cit' Brass Works v. .L. R. B.. 357 F.2d 466 (1966), the Fifth Circuit explained that its holding in Talladega was based not on the factor of fear being instilled in employees as a result of the discharge of supervisors but rather than such action interfered with, re- strained, or coerced the employees in the enjoyment of their rights secured under the statute. The General Counsel fol- lowing that line has relied on the principle set forth by the Board in Pioneer Drilling Co.. Inc., 162 NLRB 918 (1967). wherein it found that the discharge of supervisors "was an integral part of a pattern of conduct aimed at penalizing employees for their union activities." By practice, in Pio- neer. the discharge of a supervisor automatically involved termination of his crew. This and other cases enunciating the same principle involved situations in which the em- ployer disciplines or discharges the supervisor in order to "get at" employees engaged in union activity. More re- cently. the Board found that an employer violated Section 8(a)(1) by discharging a supervisor who had informed an employee that the company was setting him up for dis- charge because of his union membership. The Board found that this conduct tended to interfere with, restrain, and co- erce that employee in the exercise of his statutory rights. Buddies Slper Markets. 223 NLRB 950 (1976). enforcement denied 550 F.2d 39 (5th Cir. 1977). But the Board has since found inapplicable the rationale of Pioneer in a situation more closely related to the instant case. In Sihilio's Golden Grill, Inc., 227 NL.RB 1688 (1977). the supervisor and a head waitress, along with waitresses and bus girls, met with the manager to discuss a dispute concerning the method of compensating the bus girls. The meeting broke up under circumstances which led to a con- tention by the company that they had quit. Thereafter, the supervisor, who had been the spokesman at the meeting, called a union to represent her and the employees. It was found that the supervisor and the employees had not quit and that the subsequent discharge of the employees vio- lated Section 8(a)(1) and (3) by reason of their concerted activity as well as their union activity. The Board. contrary to the Administrative Law Judge, found that the company had not violated Section 8(a)( 1) by the discharge of the supervisor. The Board stated: Barneman was not acting to protect or vindicate em- ployees' statutory rights; nor was she refusing to in- fringe on those rights; rather she was concerned only with advancing her own and the employees' job inter- ests. Further, her discharge was not an integral part of a scheme resorted to by Respondent by which it sought to strike through her at its employees for their turning to protected concerted activities or by which it sought through her otherwise to discourage their engaging in such activities. [227 NLRB at 1688.] The Board said that the employer therein took the same action against the supervisor as it did against the employ- ees. She was discharged for engaging in activities protected by the Act but, as a statutory supervisor, she was not pro- tected and her discharge was not unlawful. The Board noted that the principle set forth in Pioneer was not appli- cable because the discharge of the supervisor "was not a ploi to facilitate or cover up the contemporaneous and sub- sequent unlawful discharges of emplo ees." I find that the instant case is very similar to the situation which existed in Sihilio. prior to the calling in of the Union. Thus, in the confrontation with Jimerson, Scarlett at the outset was the spokesman, but the other employees also spoke up concerning their feelings as to Jimerson's conduct. While it is true that she was advancing the cause of the employees. she, as an object of Jimerson's untoward con- duct. was also personally involved and concerned with her own interest. In any event, the chronological sequence here leads to the conclusion that Respondent did not interfere with its employees' Section 7 rights b discharging Scarlett. lIane had discharged the employees by telling them to "hit the clock," at a time when Scarlett was not present. she having been removed to the machine shop in the rear. It was only after this action against the other employees that he met Hasty and told her that she and her sister, Scarlett. were no longer employed. There is no indication that l.ane was seeking to "cover up" employees discharges by termi- nating Scarlett. HIe simply discharged everyone who en- gaged in the protest, including her. In conclusion, I find that, despite the fact she was en- gaged along with the other employees in concerted activi- ties. her own activity was not protected because of her sta- tus as a statutory supervisor. Therefore I find that Respondent did not violate Section 8(a1)(1 of the Act by its discharge of Scarlett. 111. lilt IFFE( I (11 1111: UNIAIR I AB)R PRA( I( S l )ON ( ()M1MI R( 1I I'he activities of Respondent set forth in section II. above occurring in connection with the operations of Re- spondent described in section I. above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce along the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Tii RI IP(i I shall recommend that Respondent cease and desist from its unf;ir labor practices and take certain aflirmative action designed to effecluate the policies of the Act. I shall recommend that Respondent be required to offer reinstatement to Thelma Jean Hoskins. Gloria Jean Hens- le., Terry Lynn Johnson. Patricia Nell Murr, Vickie Karen Reagen, Dorothy Smith, Deborah Ann Steadman, Michael Steadman, Pamela Richmond. and Betty Hasty to their for- mer positions or, if no longer available, to substantially equivalent positions. without prejudice to their seniority and other rights and privileges: and make each of them whole for any loss of earnings or other monetary loss each may have suffered because of their unlawful discharges, less interim earnings, if an!, plus interest at 7 percent per n- num. Any backpay due is to be determined in accordance with the formula set forth in : '. Woolworth ( ompani. 90 NILRB 289 (1950). and Florilda Steel (orporaion, 231 NLRB 651 (1977). 960 I)OWNSI()PI. INI)I'SIRI S. INC(' ( I(t SONS tt l.. A\ I. reenbrier and [)ou nslope are both indi iduall. cnl- plosers engaged in colimmerce ithin the meainin of' Sec- tion 2(6) anid (7) of the Aci. 2. (reenbrier and D)onrislope collsilttle a single Cel- plo!er within the meaning of Section 2(2) of the Act. 3. B discharging Thelma Jean lskins. Gloria .e1an Hensele>. Terr\ Inn Johnson. Patricia Nell Mlurr. Vickie Karen Reagen. Dorothy Smith. [)eborah Ann Steadimalni. Michael Steadmailn. Pamela RichImonid anld Bett\ ll ast because thex engaged in concerted actisit. Responlldenl in- tertered A ith. restrained, and coerced ernploecs ili the e\- ercise of the rights guaranteed thern bh Sectiotn 7 lof the Act and in violation of' Section 8(a)( I ) of the \ct. 4. The aoresaid unfair labor practice afects colmerce within the meaning ofl Section 2(2). (6). aid (7) of the Act. 5. Respondent did not violate Section 8i)t ) of t lie Act bh discharging elen Scarlett. i supervisor. I:pon the foregoing tindings of' l'ct anid concRlusionls (to law and uponi the entire record, and purstiallt t) Section 10(c) ot' the Act. I ereh issue the follo'A inL recolnlllendeld: ORD[) IR' The Respondents. Do vnislope I dustries. Inc. and Greenbrier Industries. Inc.. Knoxville. Tennessee. theirotfi- cers, agents, successors, and assigns. shall: I. ('ease and desist from: (a) [)ischarging or taking other adverse action against emploxees in circumstances constituting interference with. restraint. or coercion of emploees ill the exercise of the rights guaranteed themn under Section 7 F' the Act. (b) In anN other manner interferiig with. restraining, or coercing emplo ees in the exercise of thile rights guaranteed them in Section 7 of the Act. ' In the eeni no eceptions are iled as prlded h, Sec 102 46 1I the Rules and Regulations ol the National Labor Relations Board, he indings. conclusirns. and the recommended Order herein h.ll. as prio,ided n Sec 102.48 oi the Rules and Regulations, he adopted hs the Board anti hecome Its findings. conclusions. and Order, and all ohjections Ihereto shall he deemed "ajed for ill purposes. 2. lake the follo, ing atlirmlatlie aclion designed o e'- feclualte the policies of the Act: (a) ()tler to Ihelmna Jean lloskins. (iloria Jean Ilenslec Ierr, I. nn Johnson. Patricia Nell lurr. Vickie Karenl Reagen. )oroth\ Snmith [)ehorah Ann Steadmian. Michael Steadmian. PaI';el Richmilond, and Bertt l;t Iast i llediate and iill reinstatement to their iormer jobs or, if those johs no loinger exist Ito subsiantialkl equisalent positions. l ith- out preIltlice to their seliori I or other right s a ld pri. ileges ire'iousl. en)oxedt and rlmake them whole tir an.! loss o' pa; the) may have suffered as a result of the discrimination practicdl agallnst tllhem lln the ilanner set Ilrthl ill tile sc- tion of Ihi ) Decision entitled "Ihe Reniled" ' tilih inierslt thereon al 7 percent per annulm. (h) Preserve and. ulpon request, il;ake as.aihl le Io the Board (or its agents. for exailnlitilotill and cplitiL. all - roll rcords, social seciril ' pa Ilenlt records. tilmcards, personnell rcords aind rportI. anid all olher records nces- sa;r to ;ll Ji'c the a ouIllI (lf hackpa due ullder the t erills ot' this ()rder. (c) Post at their Knox lle lennessee. plant copies ot Ihe attachled notice marked "ppenlix\ (' Copies o said no- lice. oin Iorms pro, idecl h the Regional D)irector ftr Re- giln 10. shall be posted hb Respondelnts inmnledialtel upon receipt thereof' anid he maintained hb them for 60 consecu- tlle da's thereafter, in conspicuous places, including all places where notices to emplo ees are custorlariB posted. Reasonable steps sha;ll he taken bh Respondents to insure that said notices are not altered. defaced, or covered b\ an' other material. (dLI) Notif the Regional l D)irector for Region 10. in 'rit- ing. within 20 da's from the date of this Order, what steps Respondents have taken to compl herewith. It is It RIIII R ()RI)l RI I) that the complaint he dismissed as to those alloegaltion not speciticall lound herein. " In Ihe esenl tital hli, (rder is enlorced h a Judgment of a t nited Stales (iirt t i Appeals Ihe -r ,rd in the lnotllc reading "Posted h Order of the National I.abor Rela.lons Board" shall read "Posted Pursuant Io a Judg- ment of the lInited Sates (urt ot Appeals Enforcing an Order of the Na- ional Labor Relalions Board' 961