Electromedics, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1990

299 N.L.R.B. 928 (N.L.R.B. 1990)

928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Electromedics, Inc. and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, Local Union
No. 537. Case 27-CA-10827
September 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 2, 1990, Administrative Law Judge
Burton Litvack issued the attached decision The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Respondent
filed a brief in response to the exceptions of the
General Counsel 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findmgs, 2 and
conclusions3 and to adopt the recommended Order
as modified 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Electromedics, Inc, Englewood, Colora-
do, its officers, agents, successors, and assigns, shall
take the action set forth m the Order as modified
'The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the Issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Thy
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The General Counsel excepts to the judge's failure to find that the Re-
spondent violated Sec 8(a)(1) by terminating Joseph Hart and Gary Hall
because of protected concerted activity A finding of such an additional
violation would be essentially cumulative to the judge's finding (which
we are adopting) that the Respondent violated Sec 8(a)(3) We therefore
fmd It unnecessary to pass on this allegation
We correct the judge's Inadvertent reference to "1984" in the first sen-
tence of par 4, sec IV, A, and substitute "1989"
3 In its exceptions the Respondent contends that the judge, in an off-
the-record discussion, showed a predisposition to find a violation The
Respondent did not, however, raise this claim of impropnety until after
the judge Issued his decision In so doing, the Respondent did not comply
with the requirements of Sec 102 37 of the Board's Rules and Regula-
tions Accordingly, we find that the claim was not timely raised Central
Mack Sales, 273 NLRB 1268 fn 2 (1984)
Furthermore, after a careful review of the record, we find no meat in
the Respondent's contention that the judge demonstrated bias and denied
the Respondent a fair hearing
4 We shall modify the recommended Order to conform to the Board's
traditional reinstatement, make-whole, and posting language We shall
also conform the notice with the recommended Order
1 Substitute the following for paragraph 2(a)
"(a) Offer Gary Hall and Joseph Hart immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
in the remedy section of the decision"
2 Substitute the following for paragraph 2(d)
"(d) Post at its facility in Englewood, Colorado,
copies of the attached notice marked 'Appendix '47
Copies of the notice, on forms provided by the Re-
gional Director for Region 27, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and mamtamed for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material"
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge employees because they
have engaged in union or other protected concert-
ed activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Gary Hall and Joseph Hart im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other nghts or privileges previously
enjoyed and WE WILL make them whole for any
loss of earnmgs and other benefits resulting from
their discharge, less any net interim earnings, plus
interest
WE WILL notify Gary Hall and Joseph Hart that
we have removed from our files any reference to
299 NLRB No 144
ELECTROMEDICS, INC 929
their discharges and that the discharges will not be
used against them in any way
ELECTROMEDICS, INC
Barbara E Greene, Esq , for the General Counsel
James J Gonzales, Esq and Judith A Biggs, Esq (Holland
& Hart), of Denver, Colorado, for the Respondent
Frank L Frauenfeld, of Denver, Colorado, for the
Charging Party
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Admuustrative Law Judge The
underlying unfair labor practice charge m this matter
was filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, Local Union No 537 (the Union), on March
21, 1989 Based on the charge, on May 31, 1989, 1 the
Regional Director of Region 27 of the National Labor
Relations Board (the Board) issued a complaint alleging
that Electromedics, Inc (the Respondent) engaged in
acts and conduct violative of Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act) Respondent
timely filed an answer, essentially denying the commis-
sion of any unfair labor practices Pursuant to a notice of
hearing, which accompanied the complaint, a trial before
me was held on October 24, 25, and 26 in Denver, Colo-
rado At the trial, all parties were afforded the opportu-
nity to examine and cross-examine all witnesses, to offer
into the record any relevant evidence, to argue their
legal positions orally, and to file posthearmg briefs
Counsel for the General Counsel and counsel for Re-
spondent filed the latter documents, and both briefs have
been closely examined Accordingly, based on the entire
record, including the oral arguments, postheanng briefs,
and my observation of the testimonial demeanor of the
several witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material, Respondent has been a corpora-
tion, with an office and place of business in Englewood,
Colorado, at which location it has been engaged in the
manufacture and sale of high technology medical equip-
ment During the course and conduct of its business op-
erations, Respondent annually sells and ships goods and
products valued in excess of S50,000 directly to custom-
ers outside the State of Colorado Respondent admits
that it is an employer engaged in commerce within the
meamng of Section 2(2), (6), and (7) of the Act
Ii LABOR ORGANIZATION
At the hearing, counsel for Respondent stated that he
would not contest the status of the Union as a labor or-
ganization within the meaning of Section 2(5) of the Act
Unless otherwise stated, all events occurred in 1989
III ISSUES
The complaint alleges that Respondent terminated its
employees, Gary Hall and Joseph Hart, on March 17 be-
cause of their activities on behalf of the Union and be-
cause they engaged in concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection m violation of Section 8(a)(3) and (1) of the Act
While conceding the terminations of Hart and Hall, Re-
spondent argues that its acts were for cause and not mo-
tivated by the employees' union or other protected con-
certed activities Additionally, the complaint alleges that
Respondent violated Section 8(a)(1) of the Act by in-
forming an employee that he was being terminated be-
cause he was a probationary employee, engaging in
union activities Respondent denied this allegation
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
The record establishes that Respondent 2 maintains and
operates a six-buildmg plant complex in Englewood, Col-
orado, located southeast of Denver, at which it manufac-
tures high technology eqtupment for hospital operating
rooms including surgery kits, temperature and pressure
monitoring probes, and blood autotransfusion systems,
necessary for open-heart surgery Blood management
surgery kits, which are a component of the autotransfu-
sion system, and other custom designed surgery kits,
which are ordered by surgeons for specialized oper-
ations, are assembled 3 in the facility involved here, clean
room A 4 The record further establishes that this work-
room is classified as a "class 10,000" clean room—a con-
trolled environment in which great care is exercised to
ensure that no debris or other type of contamination
comes into contact with the product To this end, the
clean room A employees must wear gowns over their
clothing, shoe covers, and hair nets (with no hair left un-
covered) Also, men with beards or mustaches must
cover their faces, and women cannot work with polish
on their fingernails or makeup on their faces Further,
employees must wash their hands with foamed alcohol
before starting to work, after touching any exposed body
part, or after picking up something off the floor Addi-
tionally, all work tables are thoroughly "wiped down"
with alcohol prior to the start of a shift, all materials,
which fall to the floor, are given an alcohol wash, and
there is no smoking or eating in the room 5 Finally, in
2 Howard Prosky is Respondent's vice president, Roger Lesher is its
production manager, and Susie Perlman is the personnel director
3 Production of Respondent's surgery kits involves assembling tubing,
plastic fittings, and blood purification bowls and packaging these on a
tray A "tnvek is placed over the tray, and the assembled product is
sent to the sterilizing area
4 Production in clean room A is divided between two separate assem-
bly lines The "perfusion" line assembles the custom designed surgical
kits, and the surgery kits for the autotransfusion machines are assembled
by the "blood management" line employees Other employees, called
"cutters," cut the tubing for each line
5 Notwithstanding what may have been Respondent's best efforts, the
environment in clean room A was a clean but not sterile one Thus, em-
ployee meetings were held there, paychecks and insurance forms were
distributed, employees were not required to wash their hands every time
they touched paper, and employees were allowed to bnng paper Into the
room
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
order to maintain the high production standards neces-
sary for the purposes for which its products are de-
signed, Respondent permits only minimal employee talk-
ing during workome and only with one's immediate
neighbors, and employees are generally required to
remain at their workstations at all times Dannette
Brewer was the night-shift supervisor in clean room A
from May 1987 through May 1989 6
Joseph Hart began working for Respondent on or
about September 14, 1988, as an assembler in clean room
A, supervised by Brewer The record establishes that,
from the outset, his attendance caused problems Accord-
ing to Hart, it merely Involved being occasionally late
for work, and he explained to Brewer that such was due
to a lack of "reliable transportation" to work While he
asserted that Brewer "seemed to tolerate" his lateness,
the latter testified that the problem actually mvolved
Hart's presence at work rather than just lateness, that
such was "poor" from the start, and that, as a conse-
quence, she gave him an oral warning ? in November re-
garding attendance and lateness Nevertheless, in Brew-
er's evaluation of Hart at the conclusion of his 90-day
probationary penod in January 1989, she found him to
be working at the expected performance level in each
evaluation category and, with regard to attendance,
merely noted that it "could be better" At the time of
Hart's evaluation, the position of lme lead 8 over the per-
fusion line during the night shift was vacant While Hart
maintained that Brewer approached him, asking if he
would be interested m the job and Brewer asserted that
Hart told her, on several occasions, he was interested in
the position, it is clear that, on or about January 24,
Brewer offered the line lead position to Hare and that,
shortly thereafter, he accepted the offer According to
Brewer, in accepting, Hart "told me he wouldn't let me
down, that he would do the best that he could for me"
There is no dispute that Hart's attendance failed to im-
prove after his promotion to the perfusion line lead posi-
tion Thus, he conceded that his transportation difficul-
ties never Improved and that, even after his promotion,
Brewer "occasionally" counseled him about being late
for work His supervisor testified that the problem con-
tinued to be attendance and lateness and that these
reached a point necessitatmg another oral wording to
Hart on February 20 Brewer further testified that Hart's
absences were becoming a serious concern inasmuch as
line leads were responsible for production and paper-
work, and his absences caused "backup[s]" and inad-
equate production runs Also, at the end of February, ac-
cording to Brewer, she counseled Hart regarding horse-
play in the clean room, with such resulting from a report
from employee Ramona Moore that Hart had slashed the
Another clean room (clean room B, C, and D) was supervised during
the nightshift by Harold Allen
7 In Respondent's disciplinary procedure, oral warnings are accompa-
nied by written explanations to Personnel Director Perlman, and written
warnings are given to the employee for his signature
8 The line lead position involves ensuring the completion of product
runs, training new employees, setting up for production, doing required
paperwork, and acting for a supervisor when the latter is absent
While concerned about his attendance, Brewer was impressed by
Hart's "workmanship" and his "leadership" abilities, and she believed he
was a person whom people could trust
back of her work gown with a razor blade Brewer
added that Hart admitted the misconduct, saying he did
it "out of fun," and that she warned him such was not
"good behavior on his part" During cross-examination,
Hart conceded that the incident occurred and that
Brewer told him it was "dangerous" and "stupid " 10 He
added that, at approximately this time, Brewer "made
some comments about if I hadn't improved she
would consider someone else for the position She
said she couldn't fake [Roger Lesher] out much longer
about my attendance"
Gary Hall and his wife Tina were hired by Respond-
ent in February 1984, and both worked as assemblers in
clean room A on the evening shift, supervised by Dan-
nette Brewer Initially, they were assigned to work on
the perfusion line, with Joseph Hart as their line lead,
however, Gary Hall was soon assigned by Brewer to
work on the blood management line, with Dale Buntrock
as his line lead Hall, who admitted bemg told by Brewer
at the time of his hire, to make sure to keep the noise
down and not to wander away from his worktable,
denied that she transferred him because of excessive talk-
ing to his wife Tina Hall testified that, at the time of
hire, her husband reported, "Dannette said she felt
that he could do better [on blood management] and
there was something about company policy preferred it
better that way" Contradicting both Halls, Brewer testi-
fied that the transfer was necessitated by "a lot of infor-
mal chitchat between the two" With regard to his at-
tendance," Gary Hall testified that he was absent on
just 3 days (2 consecutive days while his daughter was
hospitalized and 1 day "a few weeks later" when his car
broke down and Brewer told him not to bother reporting
as everyone would be sent home due to a snow emergen-
cy), that each was "supposed to be excused", ' 2 and
that he was never disciplined for excessive absentee-
ism 73 On this latter point, Respondent offered as Exhib-
it 15, a note from Brewer to Perlman, purporting to de-
scribe a conversation on or about March 3, a day on
which Hall was absent, between Brewer and Hall during
which she admonished him "about his attendance need-
ing improvement" Brewer herself failed to testify re-
garding the substance of any such conversation
Dannette Brewer did not work on Friday, March 10,
havmg scheduled a day off for that date According to
her, on the day before, she met with her line leads, Hart
10 Rather than giving him a verbal warning, Brewer termed her talk
with Hart after the incident as "verbal" counseling, with nothing in writ-
ing
" Respondent's employee handbook, which all employees, including
Hart and Hall, receive when lured, requires "regular and on-time" at-
tendance and permits discipline for "excessive unjustified tardiness or ab-
senteeism," which is defined as "more than one unexcused absence per
month" and "more than two tardy occurrences per month"
72 When his child became hospitalized, Brewer told him to "just get
back when you can" Apparently, Tina Hall also was permitted to be
absent for these 2 days
78 Notwithstanding the assertion in Respondent's counsel's posthearmg
brief at fn 5 that R Exh 30, Hart's absenteeism record, contradicts his
testimony, the exhibit, in reality, corroborates him that he was absent 2
consecutive days—on February 28 and March I The exhibit also estab-
lishes that he was, in fact, absent from work on four occasions, the other
2 days being February 23 and March 3
ELECTROMEDICS, INC 931
and Buntrock, and cautioned them to make sure there
was "no horseplay," a good production run, and no com-
plaints Notwithstanding her admonition, Hart and Gary
Hall engaged in apparent misconduct that evening As to
the former, he conceded squirting alcohol" at other
workers but contended such was in retaliation—people
"were squirting back It was a squirt-bottle war going on
that night Everybody was squirting that tught " 19 Hart
further conceded not doing anything to stop the squirt-
ing but denied shooting rubberbands at workers or
threatening to discipline workers if they reported his
conduct to Brewer Several witnesses disputed Hart's de-
scnption of what occurred that night At the outset, in
this regard, there appears to be no dispute that alcohol
squirting is a frequent occurrence in clean room A 16 and
that, according to Ellen Vella, the quality control em-
ployee assigned to that clean room during the night shift,
such does occur during work hours Ramona Moore, a
tube cutter for the perfusion line, Donald Craigo, an as-
sembler on the blood management line, Buntrock, and
Vella each testified that Hart was wandering around the
clean room that Friday night and squirting employees in
"their backs, their butts" while they worked Vella testi-
fied that Hart was the only employee engaging in this
conduct 17 Further, Moore testified that Hart "popped"
her with a rubberband as she was assisting Vella, and the
latter testified that she observed Hart shooting rubber-
bands at assemblers that night Finally, as to Hart, while
Vella insisted that Ramona Moore approached her and
said that Hart had threatened to write her up for alcohol
squirting and rubberband shooting" if she reported his
conduct to a supervisor, Moore herself denied such a
threat by Hart or reportmg such a threat to Vella
Concerning Gary Hall, there is no dispute that he en-
gaged in a confrontation with Dale Buntrock on Friday
night, necessitating the intervention of Harold Allen, the
supervisor of clean rooms B, C, and D As to what oc-
curred, Hall testified that he had completed taking a
number of surgical trays to a rack, at which they are
checked by quality control and then sealed, when Bun-
trock approached and said "if he caught me wandering
around one more time he was going to put me in a
corner like a little kid" An argument ensued, and the
• 14 Approximately a dozen plastic squirt bottles, filled with alcohol, are
stored on a rack, located in the center of the clean room The alcohol is
used to clean any product or instrument which falls to the floor
la Others identified, by Hart, as participating in the "war" that evening
were Dale Buntrocic, the other line lead, Ramona Moore, Tim
and Julie Anderson
16 One witness, Ramona Moore, described such squirting as occurring
more than 20 times
17 Tina Hall corroborated Hart's account of the asserted misconduct
that night "He was working but he was messing around squirting
people with squirt bottles" She added that "everybody was kind of
doing it It wasn't just Joseph" That there was much horseplay that
Friday night was confirmed by Donald Craig° who testified that, in con-
trast with other work nights, "here was a lot of noise, a lot of fooling
around" Asked who was creating the noise, Criugo said "There was a
bunch of people involved," more than just Hart Further, Craig° ob-
served Hart squirting workers on both assembly lines, but "I can't direct-
ly say that I saw him do anything else"
la Although Moore failed to mention her involvement in the miscon-
duct, Brewer testified that both Moore and Julie Anderson later con-
fessed to her that they had "retaliated" by shooting rubberbands back at
Hart
line lead left and, shortly thereafter, returned with
Harold Allen Allen asked Hall to leave the room with
him They did so, Allen asked him what the fight was
about and told him to return to work and not to worry
about it Hall denied that Buntrock told him to keep his
voice down and stated that, after he continued speaking
in a loud voice, the line lead threatened to place him at a
different table Further, while denying saying "fuck you"
to Buntrock, Hall admitted saying to the former, "the
hell you will" Buntrock testified that the confirmation
was precipitated by Hall speaking in a loud voice, "so I
went over to his table and asked him if he could quiet it
down and Just get back to work" Hall responded by
telling Buntrock to stop picking on him and by calling
him "various names" Buntrock replied, warning Hall
that if he did not quiet down, he would have to move
the employee to another table 19 At this point, Hall
became "upset" and "got rather loud," and Buntrock
asked Harold Allen to help him The latter came to the
clean room, spoke to Hall outside, Hall returned to
work, and "everything was fine " 20 Harold Allen testi-
fied that he spoke to Hall and told him "to stop creating
any more disturbances" Finally, relating uncorroborated
testimony, Ellen Vella stated that during the above argu-
ment she heard Hall say "fuck you" and call Buntrock
"an asshole"
On Monday, March 13, upon returning to work, Dan-
nette Brewer was told by Vella that on Friday night
Buntrock and Hall had engaged in a "disruptive argu-
ment" almost to the point of a fistfight and by Ramona
Moore and Julie Anderson that on the same night Joseph
Hart had been squirting people with an alcohol bottle
and shooting rubberbands at workers After further con-
versations with Buntrock and Allen, Brewer spoke to
Hart when he amved in the clean room at approximately
3 p m Hart recalled that she confronted him with what
Vella, Moore, and Buntrock said about his conduct on
Friday night and that he became upset inasmuch as
Brewer took the word of the employees and "she did not
ask me first" and as "these people who supposedly had
told were guilty of doing the same things themselves"
He further recalled that he and Brewer began arguing in
the clean room and that he abruptly walked out As to
whether he left and attempted to speak to Roger Lesher,
Hart could not recall 21 According to Brewer, she told
19 Don Criugo testified that although it was "very noisy" in the room
at the time and there was a great deal of "commotion" he overheard
Dale Buntrock confront Hall, who was acting with "a little less control"
than usual, and say to "either settle down and take care of your business
or he was going to separate him" Buntrock does not recall Hall's reply
other than asking to speak to a supervisor
29 Likewise, Hall believed the matter was then "settled" On the fol-
lowing Monday, Buntrock apparently felt so little about the incident that
he mentioned it only in passing to Brewer and did not recommend any
discipline
21 According to Roger Lesher, the production manager, he learned of
the events of Friday, March 10, when Hart spoke to him the following
Monday, saying "that he felt that his supervisor was picking on him and
that some of the employees were going to tell [Brewer] that he had been
doing something Improper on Friday night" Subsequently, Lesher spoke
to Brewer who told him what she had learned about the conduct of Hart
and Hall on Friday night
Hart did not recall speaking to Lesher that night
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hart what had been reported to her, and he responded
that "nothing" had happened She asked about the
"fight" between Hall and Buntrock, and Hart termed it
an "argument" She asked him again about squirting al-
cohol and shooting rubberbands, and Hart denied it,
saying the girls did not like him and wanted to see him
get into trouble Brewer then told him that such behav-
ior would probably cost him the line lead position Hart
said he would see about that, said he would speak to
Lesher, and left the room, slamming the door Brewer
further testified that he returned 15 minutes later,
"stomped" over to the alcohol wash area, and said in a
loud voice "that he had won, he would have my job"
Thereupon, Hart walked over to where Brewer was
standing and asked what she wanted him to do She re-
plied that he should calm down and begin working Hart
then walked over to Hall's table, said everything was
being done because he is a "black man," and left the
room Brewer followed him into the gowning area and
told Hart that she was going to send him home for the
remainder of the night in order for him to calm down
Asserting that Hart was quite angry at this point, she
told him that his behavior reflected upon her judgment
and that she could not accept an individual, whom she
"entrusted" with a line lead position, acting in such a
manner Brewer then reiterated that it would be best for
him to leave and go home and said they would discuss
his job status the next day Brewer added that she felt
"intimidated" by Hart's "voice" and his "expression"
Hart recalled this conversation in the gowning area, stat-
ing that they spoke about what happened on Fnday
night, that he felt it was discrimination against him, and
that she told him to go home to "cool off"
With regard to Gary Hall, Brewer testified that she
spoke to him in the gowning area after he reported for
work "I asked him to tell me what had happened
Friday He told me that Dale was treating him like
shit telling him he was talking too much or that he
was spending too much time in the chair, and he got
tired of hearing it The last time he had said that
Mr Hall told him, 'fuck you " Brewer further testi-
fied that, during the conversation, "he was pretty angry
Shouting, telling me that he wasn't going to take
that shit from Dale, me or anybody else" At that pomt,
"Gary slammed his fist against the wall, and said he was
going back to work " Brewer added that Hall's
work that mqht was "poorly" done, that he continued to
talk, and that his work was "very slow" Although she
did not so state, Brewer evidently considered this as an
oral reprimand and prepared a memorandum, Respond-
ent's Exhibit 14, for Perlman after the conversation Hall
denied the above incident, saying that Brewer never ac-
cused him of insubordination and only said, while pass-
ing by his work table on Monday, "she had a bone to
pick with me" According to him, there was no further
discussion .
Joseph Hart was absent on Tuesday but did report for
work on Wednesday, March 19, and apparently 22 at-
22 Hart recalled a meeting with Lesher and Brewer but was unsure of
the date or what was said
tended a meeting with Brewer and Lesher Brewer's
only recollection" of what was said was that they "dis-
cussed [Hart's] behavior, the consequences that it could
bring" Roger Lesher testified that the three met in his
office, that he told Hart he had investigated the events of
the past Friday, "and that [employees] had all verified
what [Brewer] had been told I stated to Joseph
Hart that I would not want to keep him in a line lead
position with the activities that went on "and that it was
necessary for him to behave himself" Lesher then told
Brewer that it was her decision about retaining Hart as
line lead Asked if Hart made any comments, Lesher
said, "He did admit that those things had went on, in-
cluding shooting rubberbands and squirting people"
Lesher added that Hart evidenced no hard feelings and
"realized that he had done wrong" While failing to testi-
fy as to what was said, Hart did not recall Lesher saying
he should no longer be line lead
Whatever union activities in which Hart and Hall en-
gaged occurred on Thursday, March 16, and resulted
from a hat, which Hall habitually wore to work and
which bears a Teamsters Union logo Hall testified that
shortly after his hire two employees, Keith Ward, an as-
sembler in clean room A on the night shift, and Rick
approached him and asked if he had ever been a
Teamsters Union member, he said, no and explained that
the hat had been a gift Then, "they asked if I knew how
to get in touch with the Teamsters, and I told them my
neighbor was an organizer for Coors and I could talk to
him And they then asked me to do that" Subsequently,
Hall was asked by Ward and others if he had spoken to
anyone from the Teamsters Union yet, and he told them
he had not had the time Tina Hall testified that "around
the beginning of March," during lunch and break peri-
ods, employees, including her husband, Hart, Ward, and
herself, began discussing their dissatisfaction with work-
ing conditions, their desire for umon representation, and,
as her husband wore a Teamsters Union hat, his knowl-
edge of that labor organization Fulfilling his commit-
ment, Gary Hall finally contacted the Teamsters Union
and was given the name of Frank Frauenfeld, an orga-
nizer for the Union Thereupon, Hall contacted Frauen-
feld, and a meeting was arranged for March 16 Joseph
Hart testified that on or about March 9 or 10 Ward and
Hall told him that, having been approached by other em-
ployees on the subject, they were going to look into
union representation Stating that he previously had been
"undecided" about joining them, due to "a whole bunch
of mishaps with [Respondent]" and with the expectation
of better wages and treatment for the employees, Hart
decided to help Having been previously advised by Hall
as to the meeting with Frauenfeld on March 16, Hart
spoke to Hall that day and said he would attend it As
scheduled, Gary Hall, Tina Hall, and Hart met with
Frauenfeld that Thursday at the latter's office Their
conversation concerned union organizing and employee
rights during such a campaign, petitioning for a union,
and employee tactics in these circumstances, Frauenfeld
23 Brewer recalled an earlier meeting with Lesher during which she
told him that she felt like removing Hart from the line lead position, and
Lesher said "that I was the supervisor—this was my call"
ELECTROMEDICS, INC 933
gave them several copies of Respondent's Exhibit 13, a
document detailing assertedly unlawful conduct by fore-
men and supervisors Leaving Frauenfeld, Tina and Gary
Hall and Hart drove to Respondent's facility in the
Halls' car
Apparently, their strategy for commencing their union
organizing campaign was to inform Respondent of their
intent to petition for a union There is no dispute as to
the ensuing events on March 16 Thus, upon arriving at
clean room A, Hart and Gary Hall met Keith Ward, and
the three employees spoke to Dannette Brewer, asking
permission to speak to Roger Lesher She told them that
they were still "off the clock" and could meet with
him 24 Hall, Hart, and Ward went looking for Lesher
and found him about to leave the building They told the
production manager it was an emergency and urgent that
they meet with him Lesher replied that he had a dentist
appointment and had no time The employees reiterated
the urgency of their request, but Lesher said it would
have to wait and left the building At this point, Hart
said they should tell someone else and suggested Re-
spondent's president or vice president, Howard Prosky
Thereupon, they crossed the street to another building
and encountered Prosky in a hall Hart testified that the
three asked to speak to him and that Hall began, saying
"he had been to see a union representative and that we
were here to petition the company for a umon " Sensing
Hall was nervous, Hart interrupted, handed a copy of
Respondent's Exhibit 13 to the vice president, and said it
was a list of what employees and supervisors could and
could not do Prosky responded, "I don't know what to
say about this" and suggested they give the document to
Lesher Hart replied that they had attempted to do so
but Lesher refused Hall corroborated Hart, testifying
that he said "we were trying to organize the company
because we had problems and we'd like to see some
things resolved, and we haven't had any satisfaction with
talking to the management, so we were going to pe-
tition for a umon " In his testimony, Howard Prosky
agreed that the employees told him that they had gone
to a union, stating that "the gist of the conversation was
that they had tried to speak to Roger but Roger had
left They said it was important Their
main complaint was as the assigmng of jobs by Dannette
They told me that they • had gone that after-
noon to talk to a union and they thought it would
be good for Electromedics " Prosky denied mentioning
this conversation to anyone that day or evening
Hart, Hall, and Ward returned to clean room A at 3 30
p m for the start of their worksluft According to Hart,
prior to asking permission to see Lesher, he had in-
formed Brewer of his decision to resign from his line
lead position but refused to tell her why After clocking
in on returning from the conversation with Prosky, Hart
testified Brewer asked to speak to him in an area termed
the "grey room" She asked why the employees had
spoken to Usher and said, "I know you guys are out to
24 According to Hart, after Brewer gave the three employees permis-
sion to speak to Lesher, she asked why Hart replied it is "nothing impor-
tant," and Brewer responded that they "are on a head hunt" Hart denied
It
get me" Hart denied it, and Brewer said that she had
spoken to Lesher earlier and had decided to remove him
from the line lead position anyway She added that it
was her decision as to what Hart would do in the future,
"and she said what she had come up with was that I
could work half the night as an assembler" She gave
Hart until the following Monday to decide Brewer testi-
fied that she had decided to remove Hart from the line
lead position after their Wednesday meeting with
Lesher25 and, at the start of the shift, told him of her
decision Hart replied that "it really didn't matter to him
he had no intention of staying in the line lead posi-
tion anyway" According to Brewer, 15 minutes later,
she approached Hart by his workstation, and "he said
they had been out to try and talk to Roger, and had
seen Howard, but Howard wouldn't listen to them, and
that he was sure by the next day some changes were
coming, and he probably wouldn't be employed by Elec-
tromedics any more" Hart failed to elaborate
The night-shift employees receive a break at approxi-
mately 6 15 p m, another part of the employees' organiz-
ing strategy appears to have been to hold an employee
meeting during the Thursday evening break to explain
what Hart and Hall had done that day Accordingly,
during the work period until the break, Hart spoke to
the employees who worked closest to him, including
Ramona Moore and Julie Anderson, saying "that there
would be a meeting at break time outside" He added
that word of the meeting spread to other employees be-
cause three or four approached him and asked about it
While denying that he ever left his workstation to tell
employees, Hart conceded to me that he may have vio-
lated company rules by such talking There is no evi-
dence that Brewer was aware of this activity In any
event, at 6 15 am, Gary Hall, Tina Hall, Hart, and
Ward met with approximately seven other clean room A
employees outside in the parking area next to a picnic
table No supervisors were present, with Brewer drink-
ing coffee in the lunchroom The Halls and Hart told the
other employees that they had met with a Teamsters
Union official with regard to petitioning for a union and
that they had informed Howard Prosky whose response
was "I don't want to hear about it" Tma Hall mentioned
that union representation might help get them better pay
but continued that they should not discuss the Union on
company time Some employees mentioned their fear of
being fired for supporting a union, and Tina gave them
copies of Respondent's Exhibit 13 Finally, the subject
turned to a formal organizing meeting and, according to
Tina Hall, Hart "said that we were going to have a
meeting at lunchtime off the clock and outside the build-
mg "26 The break period ended, and the employees re-
turned to the clean room for work
Don Craigo worked "at the last table in the back" of
clean room A, and all employees must pass by his work
station on the way to their own He testified that, at the
conclusion of the break period that Thursday night, as
25 Brewer testified that earlier she prepared R Exh 8, a status change
form, for Hart's signature
25 Neither Gary Hall nor Joseph Hart mentioned the scheduling of
such a meeting
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joseph Hart "was in the process of coming back from his
break, he said to Craig° that he wanted me to
attend a meeting at lunch out in our parking lot" Craigo
asked why, and Hart replied, "I can't tell you but its im-
portant, come to the meeting" Craig° again asked why,
Hart said he could not tell him and continued to his
workstation 27 For the next hour, according to Cnugo,
he was bothered by not being able to get an answer from
Hart as to the purpose of the lunch meeting and, appar-
ently believing it implied Hart's problems with Brewer,
felt uncomfortable about possibly taking one side against
the other Thereupon, Craigo approached Dale Buntrock
in the grey room and told him about what Hart had said,
adding that Craigo was in a "predicament" as he did not
want to get involved Buntrock testified that Craig° "ap-
proached me and said that Hart had asked him to
meet him in the parking lot at lunchtime for a meeting
he was a little upset about it because he didn't
want to have to take sides he wanted to remain
fnends with everybody at work 28 Thereupon, Buntrock
went to inform Brewer, telling her about the meeting in
the parking lot, and "she seemed to be upset about
what the meeting was going to contain, what the meet-
ing was about" Then, according to Buntrock, "she pro-
ceeded to go make a phone call" Dannette Brewer testi-
fied that some time after the break penod 29 Buntrock
approached her outside the clean room and said that
"Don Craigo was pretty worried" She asked why, and
Buntrock said that Joseph Hart was "bothering him"
about a parking lot meeting during lunch and Craigo was
"worried" about the consequences of not going He
added that "Don didn't want to approach me directly for
fear of causing some kind of a ruckus" After instructing
Buntrock to tell Craigo not to worry, according to
Brewer, she and Buntrock returned to clean room A,
and Hart and Hall "were at other tables talking and
would take two, three minutes and would go back to
their work tables And at this point I wasn't sure was
going on, and I decided I would go out and call
Roger "30
27 Hart recalled speaking to Craig° but not about a lunchtime meeting
According to Hart, he spoke to Craigo about the break meeting ("You
should have been there ") Hart could not even recall if a meeting had
been planned for the lunchbreak
28 Asked if he told Brewer that Craigo had been harassed by Hart,
Buntrock said, no and added that he did not characterize the Hart-Criugo
conversation to Brewer—"I just reported it"
23 Brewer testified that immediately after the break "It was real quiet
for a change, real quiet in clean room A"
38 The only other witness who assertedly observed this type of con-
duct on March 16 was Chester Quance, Respondent's secunty officer
According to him, at approximately 6 45 p m on March 16, while
making his normal rounds, he "stuck" his head into the grey room and
observed Brewer "in a state of high agitation" and "nervous" Ellen
Vella was with her and told Quance that Brewer was "concerned" for
her safety, that two employees were in the clean room speaking to other
employees and planning a meeting, and that the two persons "were out to
get her" Quance testified that he then glanced in the clean room A
window, and "there were two people bench-hopping or going
around to different tables in the clean room talking with people" He
added that he later was able to identify the persons as Gary Hall and
Joseph Hart Neither Vella nor Brewer corroborated Quance as to the
above conversation, and Vella was not even able to recall whether Hart
was present at work on the night of March 16 Further, of course,
Brewer testified that there was "quiet" in the clean room after the break
Brewer testified that she telephoned Roger Lesher at
home but that he did not answer She then telephoned
Susie Perlman, the director of personnel, telling her "that
I wasn't sure what was going on, that I was in fear for
myself and my job" She told Perlman about the Craigo
conversation and "just that people were told to be in the
parking lot at lunch and I was scared "87 Perlman told
her to calm down, suggested that she could get help
from security or the sheriff, and said she should try
Lesher again 32 Thereupon, she again telephoned
Lesher, and he was at home "I told him the same thing
I had spoken to Susie about that Joseph Hart
wanted people in the parking lot, that they were going
from table to table in there, that I had no idea what was
going on, and I didn't know what to do It had gotten
out of my control" Lesher told her that the two em-
ployees were being "disruptive" and "intimidating" other
workers and that it would be best that they be escorted
out of the building and sent home Lesher testified,
during direct examination, that Brewer telephoned him
at approximately 6 30 p m, and "she was very con-
cerned She sounded scared She said she thought that
Hall and Hart were trying to organize something against
her in the parking lot at lunch break She really
sounded scared, so I requested that she get a
hold of our security guard and, due to the problems we'd
had with them before, Just to have them sent home "33
Brewer next testified that, upon concluding with
Lesher, "I was afraid to go back to the clean room"
Therefore, she telephoned Harold Allen, the clean rooms
B, C, and D supervisor, told him what had occurred,
and he offered to go to clean room A and tell both Hart
and Hall that they were being sent home for the night
and should see Lesher the next day Also, she called
Chester Quance, the security guard, and "told [him], Just
what Roger told me that they were Just going to be sent
home for the night, and just to see that they got out of
Ramona Moore testified that on that Thursday night Gary Hall handed
her a copy of R Exh 13 as she was in the tube cutting area and that
Joseph Hart said there was to be a meeting with "the union people" on a
"particular day" It is unclear whether this conversation occurred before
or after the break Hart mentioned no such conversation, and Hall denied
speaking to anyone after the 6 15 break ended
Dale Buntrock failed to corroborate Brewer's testimony about Hall and
Hart speaking to other employees and moving from table to table
37 Asked why she was "scared," Brewer said It involved "not knowing
what was going on" She also averred being personally afraid "because I
had seen the anger of Mr Hall and Mr Hart on previous occa-
sions"
32 Perlman contradicted Brewer about the timing and substance of the
conversation, stating "her voice was shaky She had not called me
at home before I asked her what the problem was She told me
that she had a problem in the clean room She had already spoken to
Roger Usher Two employees had been sent home from work that were
involved in the situation She said that It seemed like they were
trying to organize the clean room against her, and they were out to get
her job " Brewer added that the two employees "were going
around speaking with other employees, trying to get a meeting together"
33 Dunng cross-examination, Lesher changed his testimony, adding
that Brewer told him that "Gary Hall and Joseph Hart had been going
around the clean room talking to people One employee had come to her
feeling harassed " Dunng redirect, Lesher added that Brewer
said that Hall and Hart were creating a "disturbance" He later changed
this to "She said that they were disturbing other employees"
Brewer did not testify that she told Lesher any employee had come to
her, "feeling harassed" or that they were "disturbing" anyone
ELECTROMEDICS, INC 935
the building" Brewer added that she told Quance that
Lesher wanted the employees' security badges, which all
employees wear while inside Respondent's facility, re-
moved until they (Hall and Hart) spoke to him the next
day Allen's testimony contradicts Brewer, specifically as
to the timing of her actions Thus, he stated that he re-
ceived a telephone call from Brewer on March 16,
asking him to come to clean room A as she was having
"some problems" Allen arrived at the other clean room,
and Brewer "told me that they were going to have a
meeting in the parking lot Gary Hall and Joseph
Hart were trying to get people together for some type of
a meeting" He added that Brewer seemed scared and
was shaking and believed that, as a result of the parking
lot meeting, "everybody was going to gang up on her
" By this time, according to Allen, Brewer was
almost in tears, and he attempted to calm her, explaining
that it was the employees' "prerogative" to eat in the
parking lot and "organize" or do "whatever they want
to do out there" Thereupon, in Allen's presence, Brewer
telephoned Lesher at home, concluded the conversation,
and "told me that Roger said to send them home "34
Thereafter, Allen entered clean room A, approached
Hart and Hall, and said he wanted to speak to them out-
side the room They left the clean room, and Allen told
both employees that they were being sent home for the
evening The supervisor then escorted the employees to
the lunchroom where they were met by Quance, the se-
curity guard Both employees clocked out, Quance asked
for their security badges, 35 and the guard escorted the
two employees outside" to the parking lot and to Hall's
car At approximately 8 30 p m, Hall telephoned his
wife, telling her what had occurred Thereupon, Tina
Hall asked for and received permission from Dannette
Brewer to leave work at the lunch hour Accordingly,
testified Tina, she left the clean room A building when
the employees began their lunch period—followed by
the security guard She walked to where her husband
was waiting in their car and observed a group of three
or four employees standing next to it According to
Gary Hall and Hart, who was also inside the car, the
employees were asking questions about what had hap-
pened, and, as Tina approached, the guard yelled to the
assembled employees that they should leave the Hall's
car "if they didn't want to suffer the same conse-
quences" Hart further testified that the security guard
owns a 357 Magnum handgun, which Hart had seen
before, and that when the guard came outside to the em-
ployees around Hall's car, Hart saw the guard's hand "in
34 Asked what Brewer was upset about, Allen said it was the employee
meeting—"that was my impression, that she thought they were after her
for some reason"
33 Quance contradicted Brewer as to why he removed the badges,
saying a former supervisor told him It was Respondent's policy to
remove the secunty badge from anyone who is told to leave the building
36 Brewer testified that, after speaking to Allen by telephone, she went
to the lunchroom to calm herself While there and while she did not ob-
serve Allen, Hall, Hart, or Quance as they stood outside that room, she
overheard either Hall or Hart say "I don't know what the fuss is all
about All we want to do is start a union" Upon hearing this, she real-
ized that the purpose of the meeting was not to get her, but she testified
that she did not change her mind about the discipline, believing the em-
ployees' acts would be a "distraction" in the clean room
his coat" as if reaching for a shoulder holster The Halls
and Hart then drove away Chester Quance could not
recall any gathering around the Hall's car later that night
or observing anyone else leave the facility prior to the
end of the shift and testified that, while he wears a gun
holster across his hip on another job, he carries Just a
clock for his job with Respondent
Roger Lesher, who denied any knowledge of the
union activities that evening, testified that he made the
decision to terminate Gary Hall and Joseph Hart that
night after speaking to Dannette Brewer inasmuch as in-
volved in the conduct were "the same two people we
thought we had straightened out the week prior to that"
Specifically, wth regard to Hart, "on the 16th, the call
that I got, that he was roaming the clean room, he was
disrupting the work, he was talking to other employees
all during working hours And we had Just talked to him
the prior week" Specifically, as to Hall, "he had had
problems the previous Friday when Dannette was gone
which required a supervisor coming from the other room
to talk to him about loud noises [and] cursing at the
line lead, and then within the following week
having problems again with him roaming the room, talk-
ing to other employees and him being on probation
it required he be terminated" Having made his decision,
Lesher arrived at Respondent's facility the next morning,
Friday, March 17, at approximately 6 30 am and imme-
diately discovered "that Hart and Hall had been talking
about umon" the night before "I had a note from Dan-
nette Brewer stating that the night she had called me,
she found out later that Hart and Hall had been going
around talking to people about union business" The
note, General Counsel's Exhibit No 2, reads as follows
Concerning last evenings conversations The said
.meetmg that Joseph Hart and Gary Hall were orga-
nizing was about "Union" One particular employee
that came forward felt very much intimidated and
harassed This was done on company time and
property The individual has stated that he will [dis-
cuss] this matter His name is Don Craig° I
did reassure this employee that he did nothing in
error and there will be nothing to worry
about [Hall and Hart] also have been instruct-
ed to contact Roger in a m
Asked the effect of Brewer's note on the terminations
of Hart and Hall, Lesher stated, "I felt that had no bear-
ing on my decision the night before" Nevertheless, ac-
cording to Lesher, moments after reading the note and in
light of its contents, he "made a point" of going to speak
to Vice President Howard Prosky, to whom Lesher as-
sertedly spoke only occasionally—"not every day"—
with their normal conversation being no more than a
casual "good morning," about his decision They met in
a hallway, and Lesher informed Prosky that he had had
problems with Hart and Hall the past Friday and the
night before, "and I said that I've decided that I was
going to terminate [them] " Lesher then mentioned
Brewer's memorandum but said he did not think it
should be a factor in his decision Usher added that he
told Prosky about the contents of the note but that his
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decision was based on what occurred the past night
Prosky told him "fine, no problem That was all that was
said" Prosky contradicted Usher on the frequency of
their meetings and conversations, testifying they speak
"every day, probably four or five times" about produc-
tion As to what was said during their 630 a m discus-
sion on March 17, Prosky testified that Lesher began by
telling Prosky about a problem in clean room A the
night before involving "fooling around" and the "harass-
ing" of other employees Lesher said that Brewer "was
afraid," and a guard was required to escort people from
the room He added that, because of what happened, he
had decided to terminate the employees at fault At this
point, according to Prosky, Lesher mentioned the same
employees' problems the previous Friday night "and be-
cause of the past expenence and the present problems he
had he felt that the best thing that we could do for the
company was to terminate these two gentlemen" Prosky
agreed that Respondent could not condone such conduct
and asked who the two individuals were Lesher named
them, and Prosky connected the names with the employ-
ees to whom he spoke the mght before Thereupon, "I
related to him the incident of the evening before,"
regarding a union Usher asked if this should change his
decision, Prosky said, no if the reasons for termination
are correct, then they should be done regardless"
During cross-examination, Prosky stated that Usher ex-
plained the above employees' misconduct "going around
from employee to employee and they were talking to
them and bothering them and stopping them from doing
their work" Later, Prosky averred, "they were going
around to all the workers in the clean room and they
were bothering them" Also, during cross-examination,
Prosky testified that Lesher does not speak to him about
all discharges and that they have, as the past, only dis-
cussed terminations "probably two or three times he's
had problems" Finally, Prosky failed to testify as to
whether Lesher mentioned Brewer's note during their
conversation until I specifically asked He then an-
swered, "He told me there was a memo and he said
they had mentioned the Union in that memo Now, ex-
actly the wording, he didn't read it to me" Lesher asked
if this should change his decision, and Lesher replied in
the negative 37
Later that morning, Gary Hall telephoned Lesher at
the latter's office The alleged discnmmatee testified that
he began by asking what was going on Lesher replied
that he had been terminated "as of today" Hall asked
why, and Lesher responded, "You're a probationary em-
ployee engaged in union activity, and I and this compa-
ny do not want a union here" Hall replied that he had
acted within his rights, Lesher replied that the matter
was closed Respondent's production manager testified to
a different version of this conversation, stating that he
told Hall that he had been terminated because of his
"problems" on March 10 when he had cursed at and was
abusive to his supervisor and on March 16 "because of
31 After speaking to Prosky, Lesher told Susie Perlman "what I was
going to do" Perlman testified that all she knew was what Lesher told
her and that she did not know what was in his mind Perlman continued,
stating that Lesher mentioned, as the termination reasons, what occurred
on March 10 and 16 and the attendance of both
problems last night" and disrupting the room Hall then
responded accusing Lesher of terminating him because of
union activities Lesher denied it, saying they could dis-
cuss it when Hall picked up his final check Joseph Hart
testified that he also telephoned L,esher that morning and
that the latter said he was terminated for bemg "insubor-
dinate" and for "harassing employees"
Both Hall and Hart returned to Respondent's facility
at approximately 12 noon in order to obtain their final
checks Both went to Lesher's office where Harold Allen
had been speaking to the production manager Along
with his final check, Lesher gave Hall two attached doc-
uments, Respondent's Exhibits 9 and 16 The former is
the termination notice, listing as the reasons, "insubordi-
nation, excessive absence, interference with fellow em-
ployees, probation not completed," and the latter is an
employee warning notice, signed by Brewer and dated
March 16, 1989, containing check marks for conduct
("on 3/10 insubordinate with line-lead, handled by
Harold Allen upon my absence"), absence (March 1 and
3, 1989), and "other" ("harassment of another employee
during working hours") Along with his final check,
Lesher gave Hart Respondent's Exhibit 10 38 The docu-
ment is Hart's discharge notice and lists as the reasons,
"attendance problems, harassment of other employees,
creatmg uncomfortable work environment" With regard
to what was said, Hall testified that Lesher asked each to
execute his termination notice, but both refused to do so
Lesher then told Hall he was being terminated "for influ-
encing company employees, harassing employees, and
absenteeism" Hall asked about the warning notice nota-
tion of "Insubordination" on March 10 and, turning to
Allen, asked if it was the problem that had been resolved
that night The latter said, yes, and Hall asked Lesher
how he could be written up for that Lesher replied "I
can do what I want to do" Hall then asked Lesher
about the warning notice accusation of "harassment" of
another employee and asked whom he had harassed
Lesher replied "that he had a number of employees that
I had harassed" When Lesher refused to name anyone,
Hart complained that he had a right to face his accuser
Lesher responded "that it didn't matter and the case was
no longer open for discussion" Joseph Hart testified
that, during the conversation, Lesher accused him of
talking on company time Hart denied a, and Lesher said
he had "several" employees who would swear that he
had done so, however, he refused to name anyone Hart
added that Usher accused him of having unexcused ab-
sences Hart responded that he thought all his absences
had been excused, and Lesher said there was no such
thing as an excused absence Neither Lesher nor Allen
testified as to what was said by the conversation partici-
pants, and neither denied what was attributed to him by
Hall or Hart
38 Although the record is unclear whether such was given to Hart at
the meeting on March 17, Brewer testified that she prepared R Exh 21,
a warning notice for Hart, the night before and left it on Lesher's desk
Like that given to Hall, It contains checlunarks next to conduct
("3/13/89 Joseph was sent home for disorderly conduct in the clean
room"), absence (3-14), and "other" ("3-16 Harassment of another em-
ployee during working hours ")
ELECTROMEDICS, INd 937
With regard to the reasons for discharge, Brewer testi-
fied that she recommended that Hart be terminated for
"disorderly conduct and harassment of another employ-
ee," as set forth on Respondent's Exhibit 21, and that
Hall be terminated for "insubordination of the line lead,
three consecutive absences and harassment of another
employee during working hours," as reflected in Re-
spondent's Exhibit 16 39 Lesher, whose signature appears
on both termination notices, testified that the stated rea-
sons on both documents are the only reasons for the dis-
charges He further testified that what occurred on the
night of March 16 precipitated the discharges of Hall
and Hart, stating neither would have been discharged
solely for what occurred on March 10—"We had talked
to them and we thought we had the problem straight-
ened out, so we were perfectly willing to give them an-
other chance" However, Lesher continued, given what
occurred on March 16 and "all of [Hart's] previous ac-
tivities" and Hall's conduct on March 10 and 16 ("it was
just two things It was something that happened all
of a sudden It just compounded in one week there "), he
made the discharge decisions During redirect, Lesher
stated that absenteeism "was not the primary reason" for
the discharge of either Hart or Hall He added that ab-
senteeism was merely "one of the problems" and that
"the conduct in the clean room," their "disruption in the
room" on March 10 and 16 was the primary reason
Lesher concluded by stating that neither Hall nor Hart
would have been discharged solely on the basis of exces-
sive absenteeism Finally, as the record establishes, nei-
ther Tina Hall nor Keith Ward was terminated by Re-
spondent, each continuing to work for Respondent after
the terminations of Hall and Hart
B Analysis
My determination as to the legality of the March 17
discharges of Gary Hall and Joseph Hart is governed by
the traditional precepts of Board law in 8(a)(1) and (3)
discharge cases, as modified by the Board's decision in
Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899
(1st Cir 1981), cert deiued 453 U S 989 (1982), ap-
proved in NLRB v Transportation Management Corp,
462 U S 393 (1983) Thus, in order to establish a prima
fame violation of Section 8(a)(1) and (3) of the Act, the
General Counsel must establish (1) that the alleged dis-
cnminatees engaged in union activities, (2) that the em-
ployer had knowledge of such, (3) that the employer's
actions were motivated by union animus, and (4) that the
discharges had the effect of encouraging or discouraging
membership in a labor organization WMUR-TV, 253
NLRB 697, 703 (1980) Further, the General Counsel has
the burden of proving the aforementioned by a prepon-
39 Asked winch employee had been harassed, Brewer answered, "Mr
Don Craig° " Asked how she knew that, the supervisor replied, "This is
what I was told by Dale Buntrock " She added that Buntrock told her
that both Hall and Hart had spoken to Cralgo Asked if the incident of
Hall going from table to table is reflected in R Exh 16, Brewer said "in
the harassment of other employees" (emphasis added) Asked if, in fact,
Buntrock used the term "harassed," Brewer said Buntrock "said that
Joseph Hart kept going to his table and bothenng him while he was
working To me that's harassment" (emphasis added) Asked about her
comment "kept going," Brewer says she meant "more than one time
going over to tell him to be sure he was in the parking lot at lunch"
derance of the evidence Gome Mfg Go, 141 NLRB 209,
210 (1963) While the aforementioned analysis was easily
applied in cases in which the employer's motivation was
straightforward, conceptual problems arose in cases in
which the record evidence disclosed the presence of
both a lawful cause and an unlawful cause for the dis-
charge In order to resolve this ambiguity, in Wright
Line, supra, the Board established the following causa-
tion test in all 8(a)(1) and (3) cases involving employer
motivation "First, we shall require that the General
Counsel make a prima fame showing sufficient to support
the inference that protected conduct was a 'motivating
factor' in the employer's decision Once this is estab-
lished, the burden will shift to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct" Id at 1089
Two points are relevant to the foregoing analytical ap-
proach First, in concluding that the General Counsel
has established a prima fame violation of the Act, the
Board will not "quantitatively analyze" the effect of the
unlawful motive The existence of such is sufficient to
make a discharge a violation of the Act Id at 1089 fn
14 Second, pretextual discharge cases should be viewed
as those in which "the defense of business justification is
wholly without merit" (id at 1084 fn 5), and the
"burden shifting" analysis of Wright Line need not be uti-
lized Arthur Young ci Go, 291 NLRB 39 (1988) I view
the instant discharges as being of the latter type and,
thus, patently violative of Section 8(a)(1) and (3) of the
Act
At the outset, of course, analysis of the factorial and
legal questions here necessitates conclusions as to the tes-
timonial credibility of the several witnesses In this
regard, the witnesses who appeared to be testifying in
the most truthful and reliable manner were Tina Hall,
Don Craig°, Dale Buntrock, and Harold Allen Each ap-
peared to be an entirely candid witness and shall be
relied on as to what occurred herein As to the alleged
discnmmatees, Gary Hall impressed me as lacking in
candor and as testifymg in a calculated manner, designed
to buttress his own position, and shall be relied on here
only to the extent his testimony was uncontroverted or
corroborated by his wife Tina In particular, I do not
credit his version of his telephone conversation with
Roger Lesher on the morning of March 17, noting that,
if the latter had, in fact, given Hall's union activities as
the reason for his termination, Hall surely would have
mentioned it during their conversation later in the day
The fact that Hall never raised what obviously was a sig-
nificant admission by Lesher suggests that the latter
never said It Joseph Hart, while seemingly somewhat
more candid a witness than Hall, exhibited a pronounced
proclivity for failing to recall particularly relevant con-
versations with Brewer, Craig°, and Lesher Accordmg-
ly, I shall rely on his testimony only when not contro-
verted by a more credible witness, uncontroverted or
corroborated by a more candid witness Dannette Brew-
er's demeanor was that of a particular mendacious wit-
ness who, like Gary Hall, appeared to be testifying so as
to protect her position She apparently fabncated por-
tions of her testimony, particularly as to Hall's conduct
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. subsequent to the break period on March 16 and as to
Hart's conduct vis-a-vis Craigo that night, and I shall
rely on her only when uncontroverted or specifically
corroborated by other credible witnesses Likewise,
Roger Lesher's testimonial demeanor was that of a disin-
genuous witness, particularly, I believe, with regard to
the timing of his decision to terminate Hall and Hart and
to his underlying motivation While Howard Prosky ap-
peared to be slightly more credible while testifying than
either Brewer or Lesher, he also seemed to be testifying
in a manner designed to buttress Respondent's position
This was particularly apparent in his account of the early
morning March 17 conversation between Lesher and
himself, an account at odds with the record evidence and
contradictory to that of Lesher Finally, neither the secu-
rity guard, Chester Quance, nor Ellen Vella seemed to
be a particularly straightforward or candid witness, and
the testimony of each was contrary to that of more
candid witnesses, such as Tina Hall
Based on the testimony of Tina Hall, corroborating
that of Gary Hall and Joseph Hart, it is clear that the
alleged discnmmatees engaged in union activities Thus,
the Halls and Hart met with Frank Frauenfeld, an orga-
nizer for the Union, early in the afternoon on March 16
They discussed the tactics of an organizing campaign,
and Frauenfeld gave the employees literature which was
to be distributed to other employees Further, the Halls
and Hart met with a group of clean room A employees
during their break period that night, informing them of
their conversation with Frauenfeld, showing them the
document given to them by the latter, and inviting them
to another union organizing meeting during the lunch-
break The conduct, engaged in by the alleged discnmm-
atees, constituted activity pnvileged by Section 7 of the
Act P & L Cedar Products, 224 NLRB 244 (1976) It is
equally certain that Respondent was aware of the union
organizing activities of Hall and Hart Thus, Howard
Prosky admitted that the alleged discnnunatees met with
him at approximately 3 15 p m that day and informed
him that they had spoken to a union earlier and that they
thought such would be good for Respondent Further,
Dannette Brewer admitted that, as the alleged discnmin-
atees were being ushered from the plant that night by
Chester Quance, she heard one of them say that their
aim was to "start a union" Finally, Roger Lesher admit-
ted that he became aware of the alleged discnmmatees'
union and other protected concerted activities the next
morning, March 17, when he found Dannette Brewer's
note, setting forth her understanding that the lunch meet-
ing the night before was for the purpose of discussing a
union
The foregoing facts are not in dispute What is at issue
is Respondent's contention, based on the respective testi-
mony of Roger Lesher and Howard Prosky, that the
former reached his decision to terminate Hall and Hart
after speaking to Dannette Brewer on the night of March
16, prior to becoming aware of the discrinunatees' union
aspirations and speaking with Prosky, during which con-
versation he assertedly informed Prosky of his earlier de-
cision Contrary to Respondent, I believe, for the follow-
ing reasons, that the decision to discharge the two al-
leged discnmmatees was jointly reached by Lesher and
Prosky during this March 17 conversation, after both
men became acutely aware of Hall's and Hart's participa-
tion in a union organizing campaign Initially, I note the
rather glaring conflicts in their respective accounts of
this conversation Thus, with regard to the frequency of
their meetings, Lesher testified that they did not meet on
a daily basis and that, when they did, their exchange
would be a mere "good morning", while Prosky stated
that the two speak "every day, probably four or five
times" about production As to the content of this con-
versation, Lesher failed to mention that Prosky informed
him of his encounter with Hall, Hart, and Keith Ward
the previous afternoon, Prosky testified that he did, in
fact, describe this meeting to Lesher Further, while
L,esher testified that he informed Prosky of Brewer's
memorandum and its contents, Prosky failed to corrobo-
rate this during his direct or cross-examination, only
mentioning that Lesher referred to such a memo after I
informed him of Lesher's testimony Even then, Prosky
denied being told the exact contents of the Brewer
memorandum Finally, as to the contradictory testimony,
unlike Lesher and completely at variance with what ac-
tually occurred, Prosky testified that Lesher grossly dis-
torted the asserted misconduct of Hall and Hart the
night before, describing them as "going around to all the
workers in the clean room and bothering them"
(emphasis added) Next, I note that Lesher admitted he
"made a point" of speaking to Prosky upon reading
Brewer's note that morning and that Prosky conceded he
and Lesher rarely spoke about terminations and, then,
only those involving "problems" Further, I note my
previously stated belief that neither management official
was a credible witness Considering all of these factors, I
do not credit the assertions of the two men that Lesher
reached his decision to terminate Hall and Hart prior to
their meeting and reiterate my conclusion that, after
learning that the two employees' conduct the night
before was union-related, Lesher sought Prosky's guid-
ance as to what to do about Hall and Hart and that, after
Prosky informed Lesher that the alleged discnmmatees
were the very same employees who had confronted him
the day before about a union, the two officials jointly
reached the decision to discharge Hall and Hart 40
That the union activity of the alleged discnmmatees
was the motivating factor underlying their discharges be-
comes manifestly certam 4 ' when one considers the sham
40 I am mindful of the testimony of Susie Perlman that Lesher spoke to
her later in the morning of March 17, giving as the reasons for the termi-
nations the events of March 10 and 16 and attendance problems At the
outset, given her blatantly contradictory testimony with Brewer regard-
ing the timing and contents of their telephone conversation the night
before, I have doubts as to the credibility of Perlman as to whatever
Lesher may have told her Moreover, she admittedly only knew what he
told her, and there is no contention that she was a participant in the dis-
charge conversation Accordingly, even if credible, her testimony is of no
relevance
4 ' Notwithstanding my conclusion that neither seemed to be an honest
or credible witness, for the reasons stated above, I credit Usher as to his
March 17 telephone conversation with Gary Hall I base this on the lat-
ter's failure to raise Lesher's "admissions" when they spoke that after-
noon Accordingly, I shall recommend dismissal of par 5 of the com-
plaint
ELECTROMEDICS, INC 939
nature of Respondent's contention that Hall and Hart en-
gaged in misconduct on the night of March 16 At the
outset, in this regard, inasmuch as Roger Lesher indicat-
ed that what occurred that night precipitated the termi-
nations, stating that the ascribed misconduct on March
10 had been "straightened out" and that their attendance
alone would not have resulted in the discharges, it logi-
cally follows that, absent Hall and Hart having engaged
in the asserted misconduct, there exists no lawful basis
for their terminations 42 Simply stated, what occurred
that night was the planning of a lunchtime meeting
during which employees would discuss organizing a
union, and, other than Dannette Brewer's apparent para-
noia that the purpose of such a meeting was "to gang up
on her," nothing remotely approaching misconduct
seems to have occurred Nevertheless, according to Re-
spondent's version of events, Hall and Hart engaged in
harassment of employees and moving around the clean
room, speaking to employees and interfering with their
work—such misconduct occurring subsequent to the
conclusion of the 6 15 p m break 43 The defenses, how-
ever, do not survive close scrutiny Thus, with regard to
the asserted harassment of employees on March 16, the
accusation involves the brief conversation between
Joseph Hall and Don Craigo as the former passed by
Craigo's worktable while returning to work following
the break period The latter's account, which I credit, es-
tablishes that Hart spoke to Craig° just once after the
break, that, given the placement of Craigo's table, it was
necessary for Hart to pass by him on the way to his own
worktable, that whatever "predicament" in which Craig°
believed he had been placed, by Hart's invitation to the
lunchtime meeting, resulted from his own sense of loyal-
ty, and that Craigo never told Dale Buntrock that he
had been harassed Buntrock, who I also credit, reported
the conversation to Brewer factually and without charac-
terizing what occurred Yet, thereafter, without any ap-
parent justification, Brewer transformed the brief ex-
change between Hart and Craig° into Hart "bothering"
Craigo and "harassment" of the latter Asked later to ex-
plain why she termed Hart's conduct harassment, Brewer
exhibited her perfidy, stating that Buntrock "said that
Joseph Hart kept going to [Craigo's] table and bothering
him while he was working" and that the words, "kept
going," meant "more than one time going over to tell
[Craigo]" about the lunchtime meeting Of course, Re-
spondent accused not only Hart but also Gary Hall of
harassing clean room A employees that night Asked
who, Brewer once again dissembled, naming "Mr Don
42 In these circumstances, I make no findings as to the events of March
10 except to note that Hall's conduct was actually not in dispute and that
whether or not Hart acted in concert with other employees in squirting
alcohol and shooting rubberbands is irrelevant As a line lead and acting
in Brewer's place, he should have known better than to engage in horse-
play
42 Counsel for Respondent in her postheanng brief, confuses conduct
which occurred before the break and that which occurred after Hart
conceded speaking to employees about a breaktime meeting, conduct
which may have violated Respondent's rules, but denied doing so away
from his worktable It is unclear whether Ramona Moore's testimony
concerns pre- or post-break conduct In any event, there is no evidence
that Dannette Brewer was aware of any conduct by Hart or Hall prior to
the initial break
Craigo" and stating, "This is what I was told by Dale
Buntrock " Of course, neither Craig° nor Buntrock testi-
fied to any such conduct by Hall Moreover, contribut-
ing to this pattern of fabrication was Lesher's assertion
to Hall the next afternoon that there were a "number" of
unnamed employees whom he had harassed Roger
Lesher neither denied this testimony nor offered any ex-
planation
Concerning the assertion that Hall and Hart were
"bench-hopping" from table to table, speaking to em-
ployees and interfering with their work, Respondent
relies on the testimony of security guard Chester Quance
and Dannette Brewer However, neither appeared to be
an honest or straightforward witness Moreover, Quance
placed his observation of the alleged discnmmatees' con-
duct immediately after being informed by Ellen Vella
and Brewer that the latter was "concerned" for her
safety, but neither Vella nor Brewer corroborated
Quance about such a conversation Brewer, who I be-
lieve fabricated significant portions of her testimony,
stated that Dale Buntrock was with her when she ob-
served the alleged discnmmatees moving from table to
table Buntrock failed to corroborate her on this point In
fact, none of the employees (Buntrock, Moore, Craigo,
and Vella) who testified at length regarding the activities
of Hart and Hall on March 10 corroborated Quance and
Brewer as to the gross misconduct on March 16, and
Vella could not even recall if Hart worked that night In
these circumstances, I do not credit Quance or Brewer
that either observed the alleged discnnunatees engaging
in the asserted misconduct
Based on the foregoing and the record as a whole, I
am convinced that, rather than for any perceived mis-
conduct, Respondent ordered that Hall and Hart be sent
home from work on March 16 because of their roles in
organizing a lunchtime employee meeting and Brewer's
fears as to its purpose and that Respondent ascribed mis-
conduct, which never occurred, to the alleged discnmm-
atees as a pretext to disguise the true motive for their
discharges—the union activities of each That such cor-
rectly defines Respondent's motivation is manifestly cer-
tam given Dannette Brewer's comments on March 16 re-
garding what actually concerned her Thus, Dale Bun-
trock, whom I credit, testified that after he described the
conversation between Hart and Craigo to Brewer, rather
than expressing outrage over Hart's "misconduct," she
only "seemed to be upset about what the meeting
was about" Moreover, later, when explaining to
Harold Allen, whom I credit, why she requested his
help, Brewer told him "that they were going to have a
meeting in the parking lot Gary Hall and Joseph
Hart were trying to get people together for some type of
a meeting " Allen seemed certain that the fact of
the meeting, and not any misconduct by Hall or Hart,
was her concern Furthermore, Brewer herself testified
that when she telephoned Susie Perlman that night, her
concern was" just that people were told to be in the
parking lot at lunch and I was scared" Fmally, although
he changed in testimony later, Roger Lesher responded
to counsel for the General Counsel regarding Brewer's
telephone call to him, as follows "she was very con-
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cemed She sounded scared She said she thought that
Hall and Hart were trying to organize something against
her in the parking lot at lunch break" Based on her
fears, according to Lesher, he requested that the two em-
ployees be sent home In view of the foregoing, it is ap-
parent that the alleged discnmmatees' asserted miscon-
duct was not even an issue to Brewer and that, in reality,
they were sent home on March 16 for engaging in pro-
tected concerted activities, a fact about which Harold
Allen warned Dannette Brewer, and terminated on
March 17 when Respondent discovered Hall and Hart
actually were engaging in a nascent union organizing
drive
In the above circumstances, given the utuon activities
of Hall and Hart, Respondent's knowledge of the activi-
ties, the timing of the decision to terminate the alleged
discnmmatees, and, most significantly, the pretextual
nature of the asserted precipitating reason for the termi-
nations, the conclusion is warranted, indeed mandated,
that Respondent's unlawful animus may be inferred and
that it terminated Gary Hall and Joseph Hart in violation
of Section 8(a)(1) and (3) of the Act 4 4 Seaboard Farms
of Athens, 292 NLRB 776 (1989), Asociacion Hospital del
Maestro, 291 NLRB 198 (1988), Murd Industries, 287
NLRB 864 (1987)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act
2 By termmatmg employees Gary Hall and Joseph
Hart because they engaged in union activities, Respond-
ent engaged in conduct violative of Section 8(a)(1) and
(3) of the Act
3 Respondent's unfair labor practices affect commerce
within the meanmg of Section 2(6) and (7) of the Act
4 Respondent engaged in no other unfair labor prac-
tices
REMEDY
Having found that Respondent engaged in serious
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that it be ordered to
cease and desist from such conduct and to take certain
affirmative action designed to effectuate the purposes
and policies of the Act I have concluded that Respond-
ent unlawfully terminated employees Gary Hall and
Joseph Hart on March 17, 1989, because each participat-
ed in union activities Accordingly, I shall recommend
that Respondent be ordered to reinstate each to his
former position of employment or, if such no longer
exists, to a substantially equivalent position Further, I
shall recommend that Respondent be ordered to make
Hall and Hart whole for any lost earnings each may
44 Respondent's counsel argued both at the hearing and in the posth-
eanng bnef that neither Tina Hall nor Keith Ward, both of whom also
engaged in union activities, were terminated This, of course, is a defense
with which the Board has dealt in countless similar cases It is sufficient
to point out that, if Respondent had a point to make in terminating Hall
and Hart, terminating others would have been superfluous Amencare
Convalescent Center, 280 NLRB 1206, 1211 (1986)
have suffered as a result of the discrimination practiced
against him as prescribed in F W Woolworth Co, 90
NLRB 289 (1950), and Isis Plumbing Co, 138 NLRB 710
(1962), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987) 4 5 Additionally, I shall
recommend that Respondent be ordered to post a notice,
setting forth its obligations
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4 6
ORDER
The Respondent, Electromedics, Inc , Englewood,
Colorado, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discharging employees because they engaged in
union or other protected concerted activities
(b) In an ,like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer reinstatement to employees Hall and Hart to
their former positions or, if no such jobs exist any
longer, to substantially equivalent positions of employ-
ment and make each whole for the discrimination against
him in the manner set forth in the remedy section above
(b) Expunge from its files any reference to the March
17, 1989 terminations of Hall and Hart and notify each,
in writing, that this has been done and that evidence of
his discharge will not be used as a basis for any future
personnel action against him
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order
(d) Post at Electromedics, Inc , wherever notices to
employees are customarily posted, copies of the attached
notice, marked "Appendix " 47 Copies of the notice on
forms provided by the Regional Director for Region 27,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted for 60 consecutive days
thereafter, in conspicuous places, mcludmg all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by Respondent to ensure that
4 I Under New HOMORS, Interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set forth in the 1986 amendment
to 26 USC § 6621
4 6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
47 If this Order is enforced by a judgment of a Umted States court of
appeals, the words in the nonce reading "Posted by Order of the Nation-
al 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"
ELECTROMEDICS, INC 941
the notices are not altered, defaced, or covered by any
other material
(e) Notify the Regional Director in wntmg withm 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complamt be
dismissed insofar as it alleges that Respondent violated
Section 8(a)(1) of the Act by telling an employee he was
being fired as he was as probationary employee who en-
gaged in union activity