GTE Lenkurt, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1974

215 N.L.R.B. 190 (N.L.R.B. 1974)

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GTE Lenkurt, Incorporated and International Broth-
erhood of Electrical Workers, AFL-CIO. Case
28-CA-3036
November 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On July 31, 1974, Administrative Law Judge James
T. Rasbury issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed exceptions
and a supporting brief, and Respondent filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-excep-
tions, and briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge as modified herein.
Our sole disagreement with the Administrative Law
Judge's Decision concerns his conclusion that the re-
marks of Plant Manager Charles Zeleny made tc em-
ployee Charles Berry with respect to the latter's filing
of charges with Board carried an implied warning not
to utilize the Board's processes, when considered
against the antiunion background exhibited by Re-
spondent in the prior above-captioned case reported at
204 NLRB 921 (1973). In reaching this conclusion, we
note that the Administrative Law Judge did not credit
Berry's version of the conversation but instead credited
Zeleny's testimony. The credited version of Zeleny's
remarks is as follows:
Whether or not you [Berry] file any more charges
about things like-about foolish things about the
Christmas music is up to you, but I think you
would generate a better image if you had filed the
charges on those things that are pertinent. If there
is something really wrong, then go ahead and file
the charge. That's not up to me to say.
Zeleny also stated he did not think it was right and
reasonable for Berry to file the charge, but he told
Berry it was also "up to him."
' The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
We can see in the above no warning, implied or
otherwise, not to utilize the Board's processes. Zeleny
only questioned Berry's good judgment in filing
charges over the playing of Christmas music in August.
Zeleny left the choice of whether or not any more
charges might be filed wholly within Berry's discretion.
Thus, contrary to the Administrative Law Judge, we
find that Respondent's past violations and union
animus it displayed in earlier cases are, standing alone,
insufficient to transform Zeleny's completely innocu-
ous statement into a violation of Section 8(a)(1).
Having found that Respondent has not violated the
Act we shall order that the complaint be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was tried before me in Albuquerque, New Mexico, on March
19 through 28, 1974.' The original charge was filed on
December 14; an amended charge was filed on December 17;
a second amended charge was filed on January 15, 1974; and
a third amended charge filed February 27, 1974. Copies of
said charges were promptly served on Respondent. Com-
plaint issued January 31, 1974, and an amended complaint
and notice of hearing issued on March 8, 1974, alleging that
Respondent violated Section 8(a)(1), (3), and (4) of the Na-
tional Labor Relations Act, as amended (herein Act). In its
answer, duly filed, the Respondent acknowledged certain
facts with respect to its business operations, supervisory
status of named persons, and the labor union involved, but
vigorously denied all allegations that it had committed any
unfair labor practices.
The General Counsel, the Charging Party, and the Re-
spondent were each represented by extremely competent
counsel. All parties were given full opportunity to submit
evidence, examine and cross-examine witnesses , and at the
conclusion of the trial to argue orally. Oral argument was
waived but helpful briefs were submitted by the General
Counsel and Respondent on May 15, 1974, and have been
carefully weighed and considered.
Upon the entire record in the case including my observa-
tions of the demeanor of the witnesses at the hearing, I make
the following:
' Most of the relevant facts herein transpired in 1973 Hereinafter all dates
will refer to 1973 unless otherwise indicated.
215 NLRB No. 46
GTE LENKURT, INC. 191
FINDINGS OF FACT
I BUSINESS OF THE RESPONDENT
GTE Lenkurt, Incorporated, is a Delaware corporation
which maintains its principal office and place of business at
San Carlos, California. It also maintains an office and manu-
facturing plant in Albuquerque, New Mexico, where it is
engaged in the design, development, engineering, manufac-
turing, and distribution of telecommunications equipment.
The Albuquerque facility is the only one involved herein.
During the calendar year 1973, Respondent manufactured,
sold, and shipped goods and materials valued in excess of
$50,000 directly to customers outside the State of New Mex-
ico. During the same period Respondent purchased and re-
ceived goods and materials valued in excess of $50,000 di-
rectly from points outside the State of New Mexico. I find
that the operations of Respondent affect commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
employee Charles Berry. It is alleged that Respondent vi-
olated Section 8(a)(1) of the Act in that Zeleny threatened
Berry with discharge because of his union activites and be-
cause of his filing of charges with the Board; and (2) Re-
spondent further violated Section 8(a)(1) when John C. Cook,
a supervisor, interrogated employee Berry regarding his
union activities , sentiments , and desires . Additionally, Re-
spondent is alleged to have violated Section 8(a)(1) by dis-
charging Charles Berry because of his concerted activities on
behalf of his fellow employees when he filed a "complaint"
with the Occupational, Safety and Health Administration
(herein OSHA); and/or violated Section 8(a)(4) by discharg-
ing Berry because he filed charges or gave testimony under
the Act; and/or discharged Berry in violation of Section
8(a)(3) and (1) of the Act because of his union activity, mem-
bership, support, and sympathy.
The real task facing the Judge is one of first discerning
precisely what was said to each of the four employees in-
volved and then evaluating its effect, or what might be rea-
sonably calculated to be its effect on the employees as it
relates to employee rights guaranteed by Section 7 of the Act;
and secondly, what was the real reason or motivation of the
Respondent in the discharge of Charles Berry.
B. The Evidence
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The Union has been engaged in attempting to represent the
employees of Respondent at the Albuquerque plant since
shortly after the opening of the plant in August 1971. On
November 22, 1972, Administrative Law Judge Jerrold H.
Shapiro issued a decision involving the same parties at the
same plant location finding Respondent (1) to have violated
the Act by several independent and illegal acts proscribed by
Section 8(a)(1); (2) to have violated Section 8(a)(3) and (1) in
the discharge of numerous employees including employees
Anthony Maez and Jacob Martinez; and (3) to have violated
Section 8(a)(3) and (1) in its treatment of Edward Britten-
ham, a former temporary employee, in his efforts to obtain
permanent employment. Maez and Martinez were ordered
reinstated to their former jobs and Brittenham was to be
offered permanent employment.' In all relevant aspects the
Board sustained the Administrative Law Judge's decision.3
As ordered, Respondent offered Maez and Martinez their
former jobs and offered permanent employment to Britten-
ham. It is the conversation between Charles Zeleny, the per-
sonnel manager, and each of these three employees on or
about the time of their return to work that provides the first
issues to be resolved. The complaint has alleged each of these
conversations to have interfered with, restrained, and coerced
employees in violation of Section 8(a)(1).
The second aspect of this case involves several alleged acts
of proscribed conduct on the part of Respondent toward
2 On August 2, 1973, Admministrative Law Judge Martin Bennett issued
a decision involving the identical parties in which he found Respondent to
have violated Section 8(a)(1) and (3) of the Act No exceptions were filed
and the Board issued its Order adopting the Judge's findings and conclu-
sions on September 11, 1973 (unreported)
3 GTE Lenkurt, Inc., 204 NLRB 921 (1973)
1. Edward D. Brittenham
As indicated heretofore Bnttenham had been a temporary
employee in a grade-3 job in the maintenance department
prior to his termination. His job was carried as temporary
because it was the intent of the Respondent to contract out
most of the routine maintenance. In the initial stages of the
plant, however, there was a heavier than normal workload
and some temporary employees had been hired Brittenham
was one of these. Termination from his temporary job was not
alleged, nor found, to be violative of the Act in the earlier case
(GTE Lenkurt, Inc., 204 NLRB 921). The violation found
related to discrimination against Brittenham in his efforts to
obtain a permanent job.'
Shortly after receiving notification of the availability of a
job (G.C. Exh. 5) Brittenham received a call at home from
Zeleny who asked him to come to his office. Zeleny intro-
duced Brittenham to Bill Bousman-whom Brittenham said
he already knew-and Bousman gave him a brief tour of the
plant with some explanation of the job duties and respon-
sibilities and then they returned to Zeleny's office.
According to the testimony of Brittenham, Zeleny then
cautioned him in the following manner:
,,Now, Ed, you know we are fully aware of your union
activities, your union sympathies because you worked
here before but there are certain rules you are going to
have to abide by. Number 1, you will do no talking about
4 In this connection there was considerable testimony about whether the
job Brittenham was offered pursuant to Judge Shapiro 's decision was a
grade-3 or grade-1 job I have not regarded this testimony as significant
because (1) arguably Respondent was only told to "hire"
Brittenham-not to reinstate him, and (2) in any event the job Brittenham
was actually offered and accepted was a grade-3 job-the same level as he
had held on the temporary job
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union or no soliciting for the union anywhere on
these premises except in the cafeteria."
He said, "I don't care how much you talk about it in
the cafeteria, but that is the only place you will talk
about or solicit for the union." Then he said, "You
know, Ed, we don't really have to take you back because
your case was a little shady or at the time we could have
appealed your case to the Tenth Circuit Court of Ap-
peals in Denver, Colorado, and probably have won it,
but we chose not to do that, but even so I want you to
know we are not taking you back with any animosity or
antagonism on our part."
Then he went on to say, "If you do take this job as
oiler, you know that when you were here before in the
plant there were several acts of sabotage wherein some-
one like did put oil or water in the oil lines and ruined
a lot of expensive equipment, and since you are going to
be working in that area from now on, I would suggest
that you be very careful," and I said to Mr. Zeleny at this
time, "Mr. Zeleny, are you accusing me of sabotage?"
He neither admitted or denied whether he was accusing
me of sabotage, he merely reiterated the fact, "Once
more, since you are going to be working in that area, I
would advise you to be very careful and not let it happen
again."
Q. The last word you used was what, the last word?
A. "Again, let it happen again."
Q. Did he say that the first time he said?
A. That was the second time around.
Q. Go ahead.
I asked him again, "Am I being accused of sabotage,"
and again he disregarded my question completely, and
I said to him then, "Mr. Zeleny, you know as well as I
do that when I was here before, I had absolutely nothing
to do with oiling any equipment in this plant," and he
replied, "It did not necessarily have had to have been
someone who worked with the equipment, it could have
been someone like yourself who was familiar with that
equipment."
And I told him then, I said, "As far as I know, there
were never any acts of sabotage committed in this plant
as long as I worked here, so, if, indeed, there were acts
of sabotage, it was before or it was after I was fired from
this plant," and he just ignored any further thing I had
to say about it.
He went on to say at that point then that Mr. Bous-
man would explain to me the hours I would work, and
he dismissed me at that point.
On cross-examination it was pointed out to Brittenham
that in his affidavit given to a Board agent shortly following
his return to work he (Bnttenham) quoted Zeleny as saying:
I repeat, we don't care how much you talk about the
union or how much you solicit in the cafeteria but there
will be no talking about the union during duty hours and
certainly no soliciting.
According to the testimony of Zeleny he talked to each
employee that was reinstated "so they would understand
primarily their rights were the same as anybody elses, and if
there were in any way, shape or form discriminated against
I wanted to know about it immediately." When asked specifi-
cally about his conversation with Brittenham, Zeleny an-
swered:
I did most of the talking. Bousman brought Britten-
ham into my office at my request and I started out with
the procedure that he would be given the same treatment
as anyone else, then I mentioned to him we had had a
sabotage situation occur while he was an employee and
that he was one of the people who knew enough about
what was going on in that area that he could have com-
mitted the sabotage.
He said, "Are you accusing me of sabotage?" I ex-
pressly said , "No, if I had accused you of sabotage, it
would only have been if there would have been some
direct evidence I said that we had none, there was no
way we could provde who did it."
Otherwise, we would have done something about it. I
went on to say that inasmuch as he was aware of how
the equipment worked and the systems, he could do
something to the heads on our numerical control drills,
which were valued at $15,000 a piece, and three of them
were destroyed by the admission of oil in the air systems.
I suggested to him that he not place himself in a
position where he might be in that position [of being a
suspect]. Then we covered the subject of soliciting union
members in working areas and I told him I specifically
was covering it with him because the nature of his job
would allow him to move about the plant and make it
easy for him to solicit during working hours.
Bousman , supervisor of tool engineering, was present dur-
ing the entire interview or exchange between Zeleny and
Brittenham. He testified in the following manner:
Q. When you and Brittenham had arrived at Mr. Zele-
ny's desk, tell us what was said and by whom throughout
this conference to the best of your recollection.
A. Mr. Zeleny told Ed he was being reinstated and
told . . .
Q. Told Ed?
A. Ed Brittenham.
Q. That he was being reinstated?
A. He was being reinstated, that . . . he mentioned
some comment that the backpay would be determined
by others at that time. He outlined some of our policies,
policies that we have related to a union organizing cam-
paign that-not a fact at that point of time, but he made
a comment to Ed about previous as you had mentioned
earlier, what was suppose to be sabotage in the plant, Ed
happened to be in the vicinity at the time, he just re-
minded Ed that he wouldn't want to see another situa-
tion like that develop. There was nothing ever came of
that, but-
Q. Is there anything else that was said?
A. He reminded Ed of his-the time that he was not
to interere with other employees during his working
hours. This was primarily because he had the freedom
of the plant and the nature of the job, he would be
working in all areas everyday up and down the rows of
workbenches and it is a maintenance problem in general
that the men interfere with production that is going on.
GTE LENKURT, INC.
Right off hand, I don't recall anything else that was
said.
Q. Did Mr. Brittenham say anything during this con-
ference that you recall?
A. Not that I recall. He may have made some general
comments. I don't recall at all.
Q. Did you say anything?
A. No. Yes, I believe I outlined the salary of the job.
We went into the job a little bit. The salary of the job,
the working hours, that Dennis Hamilton would be his
immediate supervisor and I previously had shown Ed a
chart, organization chart of the way maintenance was
organized at that time.
a s # s
Q. Now, after this conference terminated, what hap-
pened next with respect to you and Mr. Brittenham?
A. I believe we-standing in the personnel lobby we
discussed the job a little more in general for 2 or 3
minutes. I made a comment to Ed again about interfer-
ence with personnel during working hours. That's a very
common problem I have. I just wanted to emphasize that
to Ed.
Q. Well, will you describe-you say it's a common
problem. You will have to give us some specific details.
A. All of the maintenance men have the freedom of
the building in performing their jobs. It's very easy for
them to be working on one machine at a workbench
talking to the girls on either side of them or interfering
with them just in spreading out or in the performance of
their job, they may interfere with the other girls work.
We would like [them] not to do [it].
Q. Has this problem occurred with other employees of
the maintenance department?
A. I would say it has occurred with all of them. That
is at one time or another.
s s * s s
Q. Did Mr. Zeleny, at any time, give you any instruc-
tions concerning Mr. Brittenham? That is, to watch him
especially closely?
A. None whatsoever.
Q. Did he give you any instructions whatsoever con-
cerning his reinstatement?
A. None whatsoever.
Q. Pardon?
A. None at all.
Q. Did you get any instructions from Mr. Hamilton
concerning watching. Mr. Brittenham?
A. None at all.
Q. Keeping track of his activities?
A. No.
Q. Hampering his freedom of movement throughout
the plant?
A. No. He was given the same freedom as the man
previously holding that job.
Q. Did you receive any complaint at all from Mr.
Hamilton about Mr. Brittenham's second term of em-
ployment?
A. None until just prior to leaving the company. That
was due to absenteeism.
Conclusions as to Brittenham
193
After careful study and analysis of all the testimony of
Brittenham, Zeleny and Bousman, I cannot conclude that
Brittenham was harrassed, coerced, intimidated, or his rights
interfered with in any way. Zeleny talked to all of the return-
ing employees-a procedure that would be in conformance
with good personnel practices. While Brittenham may right-
fully have been offended that Zeleny would even hint (by way
of raising the subject matter) that he could be guilty of sabot-
age, nevertheless, I cannot find on the basis of all the tes-
timony that Zeleny accused Brittenham of sabotage or threat-
ened him with loss of employment. While the testimony of
Zeleny and Brittenham is not greatly variant as to the subject
matter discussed, I am of the opinion that Brittenham's ver-
sion was slightly embellished. The substance of Zeleny's con-
versation was one of advising Brittenham that he would be
treated like all the other employees-no better, no worse. The
warning about talking unionism on the job may have been a
technical violation because normally manufacturing or pro-
duction employees are not to be prohibited from talking un-
ionism on the job unless it interferes with production.' On
the other hand, as the cited cases state, "working time is for
work" and inasmuch as the maintenance men do wander
around the entire plant and because excessive talking to the
point of being disruptive had been prevalent among this
group, a caution or warning in this regard cannot be con-
strued as a violation of the Act.'
2. Anthony Maez
Maez was one of the first employees hired by Respondent
shortly after the Albuquerque plant opened and he was found
by Judge Shapiro to have been discriminatorily discharged on
April 4, 1972, and was ordered reinstated It was stipulated
that Maez was reinstated on September 4 and had a conversa-
tion with Zeleny, either that day or the following day.
When Maez was asked by counsel what was said and who
said it he responded:
Well, he [Zeleny] told me that I was ordered to be put
back to work by the National Labor Relations Board
and that was the only reason I was there working. He
just went on and later in the conversation he told me the
reason they had fired me was for falsifying my timecard
and that was the only reason and if -1 did it again he
would fire me again . That was basically about all there
was.
Maez never complained to the Board or filed a charge
concerning this conversation, but apparently did relate the
conversation, or a portion thereof to a coworker, Richard
Thompson.
Zeleny acknowledged having had a similar "returning-to-
work" interview with Maez as that held with other employees
at which time the Company's reason for discharging Maez
was discussed and at Maez' request the question of falsifica-
5 Peyton Packing Company, Inc., 49 NLRB 828, 843, enfd 142 F 2d 1009
(C A 5, 1944), cert denied 323 U S 730 (1944), Republic Aviation Corpo-
ration v NLRB, 324 U S. 793 (1945)
6 Walton Manufacturing Co, 124 NLRB 1331, 1336 (1959)
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of work records was discussed on more than one other
occasion. Zeleny testified:
. . when Anthony Maez had gone out for lunch, he
knew that the procedures dictated that he was to have
his card signed by a supervisor if he came back in late
On the occasion of his termination he did not have his
supervisor sign that card, so when Anythony Maez re-
turned to work, I specifically told him that this was not
acceptable procedure and that if he did it again, he
would be terminated. And I also reminded him of the
fact that that procedure was outlined on the bulletin
board no more than 2 weeks before the act occurred that
precipitated the termination
He did not quarrel with anything that had happened.
He could not believe that somebody who had made what
he considered here in his terms an "honest mistake"
would be terminated for an honest mistake.
s s s s s
Q. Is that about the substance you had about the
conversation you had with Anthony Maez when he re-
turned to work, the several conversations?
A. Well, and the standard procedure of telling him
that his benefits were the same as anybody elses, and I
think in Anthony Maez' case I had less concern about
his performance than anybody else. Anthony Maez was
never a bad performer; he's a very good worker. I frankly
hated to terminate him
Conclusions as to Maez
There is no question , but that Maez had violated a known
and published company rule on the occasion of his previous
discharge . Judge Shapiro stated in his heretofore cited deci-
sion at page 126:
Maez ' misconduct did not warrant the drastic penalty
of discharge . Maez was one of the Company's most sen-
ior employees having started work on August 30, 1971,
the day the plant began production . He was regarded by
the Company as a good employee . His misconduct, a
first offense , caused no harm to the Company. And,
there is no contention the Company believed when it
fired Maez that he had made the entries on his timecard
with an intent to falsify . . . . Under the circumstances,
I am unable to find that Maez engaged in such ag-
grevated and gross misconduct as to warrant such dras-
tic and precipited action by the Company and find that
the discharge penalty imposted indicates that the Com-
pany was motivated by unlawful consideration.
Falsification of records is a serious breach of mutual obli-
gations between an employee and employer. Under all the
circumstances where Maez' earlier discharge was found to be
discriminatory on a mixed motive theory and there was no
doubt that a known company rule had been violated, it does
not seem unusual, unkind, or illegal to warn the returning
employee of the Company's intention to vigorously enforce
its rules. To have done less might have been a real disservice
to the employee. After careful analysis I cannot find the
returning-to-work interview between Zeleny and Maez to
have been threatening, coercive, restraining, or to have inter-
fered with the rights guaranteed all employees by Section 7
of the Act.
3. Jacob Martinez
Martinez was employed by Respondent in October 1971
and was discharged on January 14, 1972,7 for "fuzzy" rea-
sons indicated by the Company to be "lack of initiative" and
"continually chatting with fellow workers." Judge Shapiro
found these reasons to be pretextual and concluded that Re-
spondent had discriminatorily discharged Martinez because
of his known sympathies and support for the Union. He was
reinstated by Respondent on September 10 and, according to
his testimony, 2 days later was engaged in a return-to-work
type interview with Zeleny.
While Martinez was somewhat vague and inarticulate in
his total testimony, he related:
Mr. Zeleny said that he had had a little talk with all
of the reinstated employees and he brought out a folder,
I presume to be my file, and he read several items out
of that and the reasons I was fired and stuff like this. He
then proceeded to say that he personally did not know
what happened because he wasn't there at the time, but
that if that I repeated any of these things that were in my
file I would be fired again and they would make it stick
. . . . He talked about my going back, about my posi-
tion, he mentioned I would be treated the same as any-
body else if I performed my work.
According to Lynn Cowan, who was Martinez' first-level
supervisor following his return to work for Respondent, the
interview occurred the day Martinez reported for work. Co-
wan testified that she was called by one of the girls in person-
nel and told that Martinez "would be coming back to work
and would I come up and interview him and talk to him."
Cowan said they went into Zeleny's office together and
Zeleny went over "the fact that he was being reinstated and
that this would make no difference as far as the way he was
treated, it would make no difference as far as him being
treated any different than anyone else. He would do his job
as would be expected the same as if he were a new employee
coming in and if the job was not done, he could be let go the
same as any other employee would be let go, and they ex-
pected him to do his job, nothing more, nothing less-that I
can remember." Neither she nor Martinez had any comments
to make. The time in Zeleny's office was only about 5 to 10
minutes.
When Zeleny was questioned as to what occurred at the
Martinez interview, he related: .
Once again the standard procedure of telling him that
his breaks were the same as anybody elses; he would be
treated no better or no worse and we expected him to
work. I told him I had not been present when he was
terminated and all I could say of the termination was
what I read from his termination and I told him it
would-it appeared he was terminated for excessive
talking, and that if-if the problem presented itself
7 This date taken from the decision of Judge Shapiro cited, supra Tes-
timony at this hearing indicated the date of discharge to have been January
4 or 5, 1972 1 do not regard this minor discrepancy as material.
GTE LENKURT, INC.
again-if talking excessively and disturbing others and
it interfered with his work, he would be terminated, but
that he would be treated no better and no worse than
anybody else.
Q. He testified-Mr. Martinez testified that I believe
he said 10 or 12 different reasons for terminations that
you went over with him?
A. Yes. I believe he said 10 or 12 or more.
Q. Or more. You heard him specify that?
A. Yes.
Q. Did you have a file?
A. A memo file?
Q. Yes.
A. Yes I did.
Q. Did you go over 10 or 12 reasons for his-with him
about this?
A. I went over this termination report, which, in its
entirety covers about 30 words. It says. Shows lack of
initiative, which great lack of initiative effects his effi-
ciency; is continually talking, which tends to effect his
quality and is a distraction to others; needs to have
constant supervision; termination during probationary
period.
I did not say anything more than that amount in there
and I don't think I even took that many words.
Q. Did you use the words "you know you are not a
permanent fixture around here" in talking to Mr. Mar-
tinez that day?
A. In substance I said to him that the fact you are
reinstated by the National Labor Relations Board does
not give you permanent tenure or something to that
effect, that we expect him to produce, or that he was to
be treated just like anybody else, no better, no worse.
Conclusions as to Martinez
After careful scrutiny of all the testimony I am not inclined
to find anything sinister or forboding in the return-to-work
interview with Martinez which might be construed as a viola-
tion of Section 8(a)(1) of the Act. I was impressed with the
testimony of Lynn Cowan and credit her statements to the
effect that this interview was conducted in an affible, friendly
manner and very much in accordance with a similar interview
in which she had participated involving an employee whose
prior termination had occurred for reasons other than those
violative of the Act. While the earlier conclusion as to why
Martinez was terminated is binding on all parties , I know of
nothing therein which was intended to prohibit the Respond-
ent from reiterating its rules against excessive talking or re-
minding the employee of the information that was in his
personnel folder. Moreover, there is nothing in Respondent's
course of conduct toward Martinez since his reinstatement to
indicate that it has in fact treated Martinez unfairly in-any
way. Since returning to work Martinez has been promoted
from a grade-1 job to a grade-2 job into another department
at his own request and upon the favorable recommendation
of his supervisor Lynn Cowan.
In summary while I am certain that it is possible for an
employer to so conduct itself toward reinstated employees by
its choice of words and tone that such conduct might be
construed as violative of an employee 's Section 7 rights, in the
195
three instances involved in this case, I cannot find the Re-
spondent 's conduct to be proscribed by the Act. I shall
recommend dismissal of the allegation contained in para-
graph 8(a) of the complaint relating to reinstated employees
Edward Brittenham , Anthony Maez , and Jacob Martinez.
C. Procedural Objections Raised by Respondent
While my recommended disposition of the alleged 8(a)(1)
conduct toward Brittenham, Maez, and Martinez on the mer-
its renders unnecessary a consideration of Respondent's
procedural defense, nevertheless, I deem it of sufficient im-
portance to be worthy of comment.
Respondent accurately asserts that the original complaint
and notice of hearing contained allegations relating to the
conversations engaged in with the three reinstated employees,
but that the onginal charge and the first and second amended
charges were silent concerning these alleged violations. Re-
spondent filed its answer raising as an affirmative defense
(G.C. Exh. 1-i) that the aforesaid allegations of the complaint
were not contained in, closely related to, nor did not grow out
of the charges filed. Thereafter a new amended charge was
filed which contained the necessary specifications and an
amended complaint and notice of hearing was served on all
parties. Respondent 's answer to the amended complaint reas-
serted as an affirmative defense the procedural defects.
It is true , as the Respondent argues, that a complaint may
allege violations not contained in the charge only ifthey are
closely related to those violations alleged in the charge and
occurred within 6 months before the filing of the charge.'
In the instant case it is not possible to find that the alleged
violations of the complaint regarding Brittenham , Maez, and
Martinez were closely related to the violations alleged in the
original charges or first and second amended charges. Nor
did they arise after the charge was filed. Had the third
amended charge not been received which contained sufficient
language to justify the alleged violations set forth in the com-
plaint, the complaint would have been fatally defective to that
extent and I would have dismissed the allegations in that
regard.
Respondent argues that the third amended charge could
not cure the defects of the onginal complaint because Re-
spondent was denied due process in that a determination had
already been made as to the merits of these issues by the
General Counsel . This argument I reject because its premise
is erroneous. The General Counsel is only interested in pre-
senting to the court those acts of alleged misconduct which
he believes to be violative of the law. The Board was created
not to adjudicate private controversies but to advance the
public interest in eliminating obstructions to interstate com-
merce . (N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S.
1.) In the absence of some proof of bias or prejudice it will
not be assumed. Under the circumstances here, Respondent
was given ample notice and opportunity to defend itself
against an amended complaint supported by a charge of suffi-
cient specificity. (See fn. 6 of State Electric Supply Co., 187
NLRB 73, 74.) So long as the amended complaint did not
contain allegations that would have been barred by Section
10(b) of the Act but for the filing date of the original charge,
8 NLR B v Font Milling Company, 360 U S 301, 307 (1959)
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I cannot perceive any possible way Respondent could be
prejudiced.
Charles Berry
The General Counsel has alleged two acts of misconduct
on the part of Respondent directed toward Berry and alleged
to be violative of Section 8(a)(1). General Counsel has also
alleged that Berry was discharged by Respondent for one of
three reasons (or any combination thereof). One of which
would be violative of Section 8(a)(1)-concerted activity in
the filing of a safety complaint with OSHA; another would
be violative of Section 8(a)(3)-discriminatorily discharging
Berry because of his union activity; and the
third-violative of Section 8(a)(4)-discharging Berry be-
cause he had filed charges with the Board. The following is
a brief summary of the evidence relating to the allegations of
the complaint as they pertain to Berry.'
Charles Berry started working for Respondent on March
6, 1972. His base rate of pay when he started was $580 per
month and when he was terminated on December 12, 1973,
he was making $815 per month. His last increase was granted
less than a month prior to his discharge. He had received
most favorable performance evaluations by his supervisors
and there can be little doubt that Berry is a capable and
knowledgeable technologist His problems began shortly after
his first interest and activity on behalf of the Union. The
General Counsel argues that the microscopic observation of
Berry following the Company' s awareness of his union inter-
est with resulting charges of "improper" and "poor" perfor-
mance was rooted in union discriminatory reasons. Without
putting it in so many words, as I understand the Company's
position, it says: Oh, no! Berry's problems stemmed from the
fact that he became so obsessed with the Union that his
attitude toward his employer and supervisors became antago-
nistic and quarrelsome and the quality and quantity of his
work suffered.
In any event, the evidence indicates that Berry became
active in the Union in March, attended some type of Board
hearing in April, and was innocently quizzed by a supervisor
as to why he had attended the hearing immediately
thereafter.1° In May Berry started wearing a union button
and was told by a supervisor to take it off, "that it wasn't
becoming to me because I was management." Later in the day
but on the same shift, his supenvsor apologized and indicated
that he (the supervisor) had been in the wrong " Berry con-
tinued to wear his union button. Berry testified, "I progres-
sively talked about the Union. I participated in having cards
signed. I participated in handing out leaflets " Berry received
his first written reprimand on June 812 because of his failure
- 9 While this summary is relatively brief in relation to the several days of
testimony, in view of my ultimate conclusions as to the real cause or motiva-
tion for the discharge, I find it unnecessary to belabor this report with
extensive details of collateral evidence tending to show and prove by infer-
ence an illegal motive which I am rejecting
10 This conversation is so described by me because there is no indication
that this event was ever a subject of a charge It is, however, indicative of
Respondent's first knowledge of Berry's interest in the Union
11 This incident was apparently the basis of a portion of Case
28-CB-2885-2 that was dismissed by the Regional Director See Resp
Exhs 3 and 4
to properly employ a systematic analysis of a faulty electronic
panel and instead employed a hit-and-miss technique of ran-
dom replacement of parts which was commonly referred to
as "shotgunning" (G. C. Exh. 3). This memo was initiated by
the day-shift supervisor (Berry worked the swing shift) and
the General Counsel produced evidence tending to prove that
giving of reprimands across shift lines was most unusual.
There was also evidence to indicate that "shotgunning,"
while not a desirable or approved technique, was nevertheless
not an uncommon practice among employees."
In summary the General Counsel sought to show that this
memorandum was the first of a series14 of "phony" memo-
randa designed to aid the Respondent in ridding itself of a
known union adherent.
Berry's second written reprimand was dated September 26,
but actually given to him orally on September 24 with the
warning that it would be placed in writing and that he would
be given an opportunity to make his comments in writing
(G.C. Exh. 4). This second file memorandum was given be-
cause of the following events On September 14, Berry saw
John Cook, his third-level supervisor (in ascending order
Candelaria was his first-level supervisor, Ken Pearsall was his
second-level supervisor, and John Cook was his third-level
supervisor), in the cafeteria and asked for a transfer to the day
shift Cook suggested he take the matter up without Cande-
laria, to which Berry replied, "I will never speak to the son-
of-a-bitch again-never again." Berry admits using this un-
complimentary reference toward his supervisor.15 On
September 20 (only 6 days later) Berry, in a conversation with
Robert Scott of the personnel department, made reference to
Mr. Wortman, the plant vice president, as a "son-of-a-bitch"
(see Resp. Exh. 15). These uncomplimentary references to the
ancestry to two of the management personnel came to the
attention of Zeleny and Berry promptly received his second
written file memorandum (G.C. Exh. 4). Berry denied mak-
ing any such reference with regard to Wortman, but I do not
credit his denial because a fellow employee, Paul McDo-
nough, overheard the conversation and testified that Berry
made a• reference to some one as a "son-of-a-bitch." In all
other regards the testimony of Scott and Berry are not sub-
stantially different and I conclude that Berry did refer to
Wortman as "son-of-a-bitch." Berry's denial in this regard
causes me to seriously question either his memory and/or
credibility not only in this instance, but in other instances
also.
12 Respondent produced evidence (Resp Exh 1) and testimony to prove
that Berry had received a verbal warning for "insubordination, not following
the chain of command" in January
13 The Company produced evidence showing that an employee named
Blackstock had been fired for this reason, but I am convinced from all the
evidence that the earlier dischargee employed "shotgunning" because he
was not competent to perform a systematic analysis This was not the case
with Berry and the Blackstock discharge is hardly analagous
14 The evidence indicated that company procedure was first to give an
employee a verbal warning (recorded by the supervisor but which did not
become a part of the permanent personnel file) then a written warning
placed in the employee's personnel file Receipt of the third written warning
resulted in discharge Zeleny testified, however, that a serious first offense
could in some instances result in immediate discharge
15 John Cock made a written record of the conversation (G C Exh 24).
Jass Bailey, a rank-and-file employee who has been active on the organizing
committee for the Union, heard the reference by Berry regarding Candelana
and so testified See Resp Exh 14
GTE LENKURT, INC
Bearing in mind that the conversation between John Cook
and Charles Berry occurred in the company cafeteria during
their meal period, the following effort by Berry to explain his
reference to Candelaria is significant for the light it sheds on
the personality of Berry (or type of individual) with whom we
are here concerned:
Q. When you were talking to Zeleny about this file
memorandum about using profanity, Mr. Zeleny made
it clear that he wouldn't tolerate you or anyone else in
the plant calling either supervisors or fellow employees
those kinds of names didn't he?
A. Yes, sir.
Q. Did you agree with that policy? You didn't think
that was wrong, did you?
A. Are you asking me to make a conclusion?
Q. Yes.
A. This situation occurred on personal time. I was not
at the time the issue occurred employed by GTE Len-
kurt. The person who I was discussing this with was not
at the time employed by GTE Lenkurt or by any other
company located within the boundaries of this munici-
pality, and, therefore, I thought at the time of discussing
the issue that I was free to talk the way I felt about a
situation that had occurred with GTE Lenkurt.
Q. I am sorry, Mr. Berry, I have been listening to you
but I don't quite follow you. Are you talking about your
conversation with Mr. Zeleny or your conversation
where you call your supervisor a son-of-a-bitch?
A. I am talking about the conversation where I called
my supervisor a son-of-a-bitch.
Q. You were talking to the boss of the swing shift,
weren't you?
A. I was talking to another individual at that time.
Q. John Cook?
A Yes sir.
Q. And he was the boss of the swing shift?
A. At that time he was an individual. He was unem-
ployed at that time at GTE Lenkurt.
Q. Who are you talking about?
A. He was on his lunch hour He was not theoretically
being paid for it.
Q. I see.
A And neither was I.
The complaint alleges and Berry testified that it was at the
time that Zeleny was talking to him about the abusive lan-
guage that he had used in reference to supervisors that Zeleny
also, "told me that if I filed any more charges as ridiculous
as this I would be subject to a third file memo." 16
On this point Zeleny denies any such discussion at the
particular meeting where Berry's second file memo was dis-
cussed, but he did testify that during a later conversation with
Berry-a meeting held at Berry's request-
I specifically said, "Whether or not you file any more
charges about things like-about foolish things about
the Christmas music is up to you, but I think you would
generate a better image if you had filed the charges on
16 See Resp Exh 5 and 6 for a copy of a charge filed by Berry and the
Regional Director's letter of dismissal
197
those things that are pertinent. If there is something
really wrong, then go ahead and file the charge. That's
not up to me to say."
. . . so I said I didn't think it was right and reasonable
for him to come-to file the charge. I said that was up
to him also.
I have already indicated that I am not disposed to credit
the testimony of Berry because of his inclination to embellish
the facts and/or exhibit a "convenient" memory. However,
in view of the union animus reflected by previous
determinations" even the choice of words acknowledged to
have been used by Zeleny carry an implied warning not to
utilize the Board's processes. I regard the right of employees
to avail themselves of the protection afforded by the Act to
be so sacred as to warrant finding even the most frail interfer-
ence, or fragile threat, in this regard to be a violation of
Section 8(a)(1) of the Act. This is particularly true in light of
the earlier adverse decisions to the Respondent indicating a
propensity on the part of the Company to tread very close to
the brink of a violation and in some cases to neglect the brink
and tread blindly
A second alleged 8(a)(1) violation was the next chronologi-
cal incident involving.Berry and Respondent to occur. The
complaint alleges that, on or about October 11, John C. Cook
interrogated employee Charles Berry regarding his union ac-
tivites, sentiments, and desires. The testimony of Berry was
to the effect that he had a conversation with a person by the
name of Shark on a citizen's band radio 16 Berry was telling
Shark something about the derogatory type of language that
Respondent had set forth in a legal document that had been
submitted to the Board (see G. C. Exh. 16). At some point
in the conversation another technologist employed by the
Respondent, named Jim Roberts, cut in on the conversation
and told Berry that what he was relating to Shark was not
true. According to Berry that same evening at work Cook
approached him and asked, "Are you trying to upset the
applecart?"
A. I told him that I thought everything was going
okay and he informed me that he had heard me on the
radio talking-on the radio talking about the company's
briefs He said that I was talking about them to some-
body by the name of Sharp or Shark . I said at 2:30 I was
talking to Jim Roberts and Jim Roberts informed me
that I was misinterpreting the company 's statement, and
what it said was not what I had been reading.
Q. Who is Jim Roberts?
A. At that time he was a technologist in the lab of
GTE Lenkurt
Q. Go ahead.
A. John Cook told me that he had heard on his neigh-
bor's radio in his neighbor 's car , parked in his neighbor's
17 204 NLRB 921, and the unreported decision of Administrative Law
Judge Bennett, both cited, supra
18 It was explained at the hearing that this is a method of radio communi-
cation requiring only the necessary equipment and the payment of a license
fee to the Federal Communications Commission There is no competency
test involved and it is not to be confused with "ham" radio operations The
explanation given at the hearing left me with the impression or understand-
ing that it is much like the two-way radio communication system commonly
used in operating a fleet of taxi cabs
198 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driveway, and I told him that I had talked, to Jim Rob-
erts. Then he.left my bench and proceeded to the lab.
John Cook denies having any such conversation with Berry
and moreover denies having any knowledge of the basic radio
conversation until after the charge alleging his "interroga-
tion" to be a violation of the Act had been filed with the
Board. I credit. John, Cook's denial. Moreover, even if the
testimony of Berry as `to this incident was accepted as com-
pletely true, Cook's comments can hardly be equated to un-
lawful interrogation. I shall recommend dismissal of the alle-
gation contained in paragraph 8(c) of•the complaint.
Tobias Maes, • a personnel supervisor, testified in a very
straightforward and convincing manner that Berry com-
plained to him on December 6 of discriminatory treatment.
While there was no testimony that' Berry ever mentioned
Candelaria's name , Maes testified,
He said something to the effect that, "I, for example,
am being asked to train an individual, and this individual
happens to be Spanish-American, and I being asked to
train him and by so doing he would be taking over my
job", I thing [sic] he said, "or depriving me of my livli-
•hood."
The events leading to Berry's discharge
The latter part of October, Candelana-prompted by Ber-
ry's being absent from work for 3 days and also because the
day shift was cross -training a second employee on the test and
alignment set-decided that he would have Berry train a
fellow employee on T and A. sets . Candelaria selected Paul
McDonough, who was classified as a grade-7 which is just
below a technologist, and directed Berry to train him. Berry
indicated his disapproval by expressing some doubts about
McDonough's background training . Either that same evening
or the following evening Berry asked to see Cook. Candelaria
advised Cook of Berry's request and Cook went to see Berry
but took Pearsall as a witness . In essence, Cook instructed
Berry to follow his supervisor's directions and train McDo-
nough and if Berry could not follow instructions then'the
Company could not use him (see Resp. Exh. 18 and 20).
Berry did not agree with Cook's version of this conversation.
Berry contended that his entire objection stemmed from be-
ing told to train McDonough on T and A sets in 2 days. While
not critical to the ultimate conclusions herein, I find Berry's
version to be after the fact "excuse making." This incident
seemed to have passed in a few days without any adverse
action being taken against Berry but without McDonough
being successfully trained on T and A sets.
In mid-November the flow of work in Berry's department
was rearranged in a manner that resulted in Berry's work
station being changed and his new workbench had a metal
top. He felt this was unsafe and so advised his supervisors. A
plastic sheet was placed over the workbench, but this was still
not safe in Berry's opinion although he testified he never'did
get shocked. However, Berry talked to two other employees
who had received minor shocks while working at the metal
top bench. On November 21, Berry filed a complaint with
OSHA indicating that he was exposed to a hazardous work-
ing condition and named the two other employees who had
received electrical shocks. The other two employees had not
joined with Berry in the filing the complaint nor were they
aware at the time that a complaint had been filed (see G.C.
Exh. 7).
Satisfied that McDonough was not capable of adequate
performance on the T and A sets, on December 3, Candelana
selected Isaac Tofoya to be trained and so advised both To-
foya and Berry. Again the testimony of Candelaria and To-
foya convinces me that Berry was something less than cooper-
ative in his assigned tasks and it was not until Tofoya had
some rather harsh words with Berry that any real help in
instruction was forthcoming.
The conversation terminated with a veiled threat by Berry
that unless something was done about the problem there were
agencies that he could go to that would resolve the problem.
Maes indicated that he would look into the situation. That
same day Maes informed Candelana of the conversation and
cautioned him against disrimination in any form.
An inspector for OSHA, Jerry Bailey, was in the plant on
December 10 following through on the safety complaint that
had been registered by Berry on November 21. Candelaria
learned of Mr. Bailey's presence when he reported for work
on the afternoon swing shift. At one point during the inspec-
tion when John Vance, the safety engineer, Ken Pearsall,
Candelaria, Berry, and Bailey were standing in the vicinity of
the metal top desk discussing the general safety problem,
Berry pointed to Candelaria and told Bailey, "This man over
here knew about this metal bench and he assigned me deliber-
ately on that metal bench." Then turning toward Ken Pear-
sall, Berry said, "And this man over here knew very well what
was going on and he allowed this." Candelaria denied that he
had deliberately assigned Berry to the metal top desk. (There
was testimony, which I credit, that higher level supervisors
had ordered the rearrangement of the work flow resulting in
Berry getting a different bench.) John Vance then spoke up
and advised that the entire panel test area was being rear-
ranged under a master plan. Sometime later that same even-
ing, after Bailey had completed his safety inspection, Cande-
laria was standing at the workbench of Isaac Tofoya engaged
in work-related conversation when Isaac Tofoya asked
Chuck Berry a question concerning a noisy channel unit that
he was working on. Berry replied, "I don't know." Upon
hearing this, Candelana then said to Berry, "Chuck, Isaac is
asking you a question, obviously he needs your help." At that
time, Berry responded in a voice described as being above
normal tones, "I don't know damn it, I haven't been working
with the system." Berry remained unresponsive for a brief
period of time while Tofoya and Candelaria stood at the desk
for a period described by Candelaria as being approximately
2 minutes. Tofoya's testimony generally supports Can-
delaria's testimony concerning this incident of December 10
and under cross-examination, Tofoya acknowledged that he
had never heard other employees speak in a similar tone or
use similar words in speaking directly to a supervisor. When
Berry finally came to the workbench where Tofoya was work-
ing, Candelaria left the area without further comment and
proceeded to type out the termination notice for Charles
Berry. (G.C. Exh. 2.) When questioned as to the reason he
had made the decision to terminate Berry, Candelaria re-
sponded,
GTE LENKURT, INC.
I felt that I had gone far enough, too far; I had done
all I could; I had bent over backwards; I was tired of
being-I was tired of having my decisions and my au-
thority challenged every day; and I was just tired of
being provoked and intimidated, aggravated; and I felt
that I had just had enough and I just wasn't going to take
any more.
Ken Pearsall and John Cook signed the termination memo-
randum shortly after it had been prepared and signed by
Candelaria. Candelaria testified that the next day he went to
Mr. Zimmerman's office (the plant manufacturing manager)
and told him of Chuck Berry's act of insubordination and his
(Candelaria's) decision to fire him. Zimmerman advised that
the matter should be discussed on the following day with Mr.
Zeleny, who was out of town. On the following day, Decem-
ber 12, Zeleny approved the decision to discharge Mr. Berry
and that evening around 8 o'clock Candelaria showed the
memorandum to Berry and asked that he sign it , which Berry
refused to do. Berry then left the plant.
1. General Counsel's contentions
General Counsel argues rather persuasively in his brief that
the first and second written file memorandums received by
Berry were neither warranted nor consistent with the treat-
ment accorded other employees; and thus contrived and con-
cocted in an effort to "get" a known union adherent; General
Counsel would minimize Berry's attitude toward the training
of McDonough and Tofoya, arguing that McDonough was
not trainable because of his lack of experience on related
equipment and that actually Tofoya was being trained at the
time of the discharge; that Candelaria was annoyed (angry)
with Berry because of the confrontation in front of the OSHA
inspector; that Candelaria harrassed and provoked Berry in
the hope that he would quit; and finally General Counsel
argues that Candelaria took personal offense at Berry's threat
to file charges with the Board if he was assigned to what
Berry thought was less desirable work.
2. Respondent's contention
Respondent argues equally forcefully that the earlier
memoranda placed in Berry's personnel file were fully war-
ranted and in keeping with its normal personnel practices;
that the Board has no jurisdiction to even consider that Berry
was terminated in retaliation for filing a complaint with
OSHA; that Berry was discharged because of insubordination
and not because of his union activity; and finally the General
Counsel's multiple choice or "shotgun" approach should
raise an inference that there really isn't a valid case against
Respondent.
Respondent's argument that the Board has no jurisdiction
to even consider that Berry may have been discharged in
violation of Section 8(a)(1) because he filed a complaint with
OSHA is misplaced. The Respondent argues:
An employee who is disciplined or terminated by his
employer in retaliation for filing a complaint as to work
hazard or unsafe condition at its place of work, has a
cause of action against the employer for reinstatement
and damages for backpay. 29 USC Section 660 sets forth
199
the procedure for this remedy. That statute requires the
filing of a complaint with the Secretary of Labor, who
causes an investigation to be made. If the Secretary of
Labor finds merit in the complaint, he proceeds, on the
employee's behalf, in the United States District Court
"which shall have jurisdiction ...", [29 USC Section
660(c)(2)] to restrain such violations and "order all ap-
propriate relief including rehiring or reinstatement of the
employee to his former position with backpay." There-
fore, Charles Berry's remedy for an alleged discrimina-
tion by Respondent because of his filing a complaint
with OSHA was through the Department of Labor.
The language of 29 U.S.C. 660(c)(2) clearly suggests that
Congress intended the Secretary,of Labor complaint to be
optional as opposed to exclusive. That section reads-
(2) Any employee who believes that he has been dis-
charged or otherwise discriminated against by any per-
son in violation of this subsection may, within 30 days
after such violation occurs, file a complaint with the
Secretary alleging such discrimination. [Emphasis
supplied.]
Thus it appears plain that the discriminatee has choice under
the statute. Berry did not file a complaint with the Secretary
of Labor regarding unlawful discharge, he merely filed a
complaint re an unsafe working condition. Moreover, Section
10(a) of the National Labor Relations Act empowers the
Board to prevent any unfair labor practices not withstanding
any other means of adjustment. Clearly the conduct of Berry
in filing a complaint with OSHA regarding not only his own
safety but the safety of other employees as well, falls in the
category of concerted activity. I conclude that the Board does
have jurisdiction to hear this allegation of the complaint and
if I were to find that Berry had been discharged because of
this protected concerted activity it would be a violation of
Section 8(a)(1) of the Act."
Without desiring to minimize, or treat with too cavalier a
manner, the arguments. of General Counsel it can be suc-
cinctly stated that the arguments and evidence presented
question the veracity of Respondent's conduct and seek to
infer disparate and discriminatory treatment toward Berry,
because of what might be described as his annoying but
nonetheless protected conduct. In order to find the inferences
sought there must first be some suspicion or doubt concern-
ing the reason of reasons advanced by the Respondent for
their course of conduct.
In my efforts to ascertain the real cause or motivation for
the discharge of Berry it was first necessary to determine who
made the critical decision. I am overwhelmingly convinced
that Candelana was an honest and truthful witness whose
testimony must be fully credited. Candelaria made the deci-
sion to terminate Berry.20 The decision was unrelated to
19 Walls Manufacturing Company, Inc., 128 NLRB 487 (1960), re-
manded 299 F 2d 114 (C A D C, 1962), 137 NLRB 1317 (1962), enfd 321
F 2d 753 (C A D C, 1963), White's Gas & Appliance, Inc, 202 NLRB 494
(1973), and NLR B v Thor Power Tool Company, 351 F 2d 584 at 587
(C A 7, 1965), see also Shelly & Anderson Furniture Mfg Co v NL.R.B.,
497 F 2d 1200 (C A 9, 1974)
20 This is based on the credited testimony of Candelaria that immediately
following the incident with Berry on December 10 he went to a typewriter
(Continued)
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berry's union activity, his complaint to OSHA and/or any
threats he may have made to Candelaria or others to file
charges with the Board. Candelaria is now a supervisor but
prior to becoming a supervisor he was very active in the
Union. He still has many friends in the Union and his brother
is currently a member of the Union's organizing committee.
I have studied the testimony carefully and reflected on the
demeanor and conduct of Candelaria on the witness stand.
There was no union animus associated with his decision. So
far as Candelana was concerned Berry was a recalcitrant,
impossible-to-handle employee who threatened the smooth
and successful operation within his authority. Berry's con-
duct toward Candelaria was one of disdain; Berry was inso-
lent and disciplinary action was fully warranted without re-
gard to any prior personnel file memoranda. Whether or not
the disciplinary action taken was too severe in relation to the
particular act of subordination is not for me to pass on21
unless it might be so disproportionate as to create the suspi-
cion of an ulterior motive. Having weighed all the circum-
stances I find nothing suspicious. On the entire record I am
convinced and find Berry was discharged because of his in-
subordination and not for the reasons alleged in the com-
plaint.
The Board has held that union membership or activity does
not immunize against plant discipline for insubordination or
other misconduct.22 Berry by his own conduct created a
situation where Respondent either had to discipline him or
acquiesce in his insubordination. The Board will not indulge
in inference where, as here, there is clear and direct evidence
of insubordination." I have the distinct impression that
Berry had become so enamored with the Union and his role
therein that he was looking for opportunities to provide a
basis for a charge of statutory misconduct against the Re-
spondent. In weighing all the evidence, I have given full
consideration to the fact that Respondent was opposed to the
Union and that it was fully aware of Berry being a leading
supporter thereof.24 However, as the Board said in Klate
Holt Co., 161 NLRB 1606, 1612 (1966).
The mere fact that an employer may desire to termi-
nate an employee because he engages in unwelcome con-
and started writing out the termination memo The fact that it was Can-
delana 's decision alone is supported by the testimony of Pearsall Thereafter
the higher levels of supervision merely concurred in the decision.
21 An arbitrator is generally free to alter or tailor the disciplinary action
imposed in order to balance one with the other in light of all of the various
equities involved, but such is not my authority here in the absence of a
showing of Illegal motivation
22 Clearwater Finishing Company, 108 NLRB 268, 273 (1954).
23 Metals Engineering Corporation , 148 NLRB 88 (1964).
24 Dobbs Houses. Inc, 145 NLRB 1565 (1964)
certed activities does not, of itself, establish the unlaw-
fulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his dis-
missal by engaging in conduct for which he would have
been terminated in any event, and the employer dis-
charges him for that reason, the circumstance that the
employer welcomed the opportunity to discharge does
not make it discriminatory and therefore unlawful.
[Footnote omitted.]
Accordingly, and as heretofore indicated, I find the General
Counsel has not proven by a preponderance of the evidence
that Respondent discriminatorily discharged Berry.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several states and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
Having found Respondent to have engaged in an unfair
labor practice, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to affectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer as defined in Section 2(2) of
the Act engaged in commerce and in an operation affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has interfered with the employee's free and
unfettered right of excess to the Board and its processes in
violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not committed other unfair labor
practices as alleged in the complaint.
[Recommended Order omitted from publication.]