Harris Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 733 (N.L.R.B. 1984)

HARRIS CORP.
Harris Corporation, Computer Systems Division and
Leonard Accardi. Case 2-CA-17801
30 March 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 30 September 1982 Administrative Law
Judge Eleanor MacDonald issued the attached de-
cision. I The Respondent filed exceptions and a sup-
porting brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order. a
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Harris Cor-
poration, Computer Systems Division, Fort Lau-
derdale, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
l On 15 October 1982, the judge issued an Erratum, inserting a foot-
note inadvertently omitted from her 30 September 1982 decision.
I In affirming the judge's decision we are satisfied that her findings es-
tablish that Charging Party Accardi was discharged for engaging in pro-
tected concerted activity as defined in Meyers Industries, 268 NLRB No.
73 (Jan. 6, 1984). Member Zimmerman adheres to his dissenting opinion
in that case.
3 We will modify the judge's notice to conform with his recommended
Order.
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.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
269 NLRB No. 132
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge our employees for en-
gaging in concerted 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 Leonard Accardi immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify Leonard Accardi that we have
removed from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
HARRIS CORPORATION, COMPUTER
SYSTEMS DIVISION
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in New York, New York, on March
10, I l, and 16, 1982. The complaint issued on March 30,
1981, alleging that Respondent discharged its employee
Leonard Accardi in violation of Section 8(a)(1) of the
Act because Accardi made concerted complaints to Re-
spondent regarding terms and conditions of employment
and in order to discourage employees from engaging in
concerted activities.
Respondent denied that Accardi engaged in concerted
activities and denies that it was aware of any concerted
activities on his part. Respondent asserts that Accardi
was discharged for the manner and means of a protest in
which he was engaged and for the harsh, destructive
tone of a letter he sent to high level management.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties in May 1982, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, with an office
and place of business in Fort Lauderdale, Florida, is en-
gaged in the manufacturing, nonretail sale, and servicing
of data processing equipment. Annually, Respondent de-
rives gross revenues in excess of $1 million and sells and
ships from its Fort Lauderdale, Florida facility products,
733
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
goods, and materials valued in excess of $50,000 directly
to points outside the State of Florida. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Leonard Accardi was employed as a senior field engi-
neer by Respondent from January 1977 to January 1981.
Accardi installed and maintained Harris computer sys-
tems primarily on Long Island, but also in New York
City, Boston, Rochester, Poughkeepsie, and New Jersey.
Accardi worked out of his home in Middle Village, New
York. 2 Accardi's immediate supervisor was Northern
District Manager Jerry Lewis whose office was in
Wellesley, Massachusetts. Accardi had met and worked
with other field engineers who lived and worked in the
New York area, including Martin Harvey, Robert Volk,
Len Berdy, John Ballentine, and Larry Shindelman.
Respondent's table of organization at the relevant time
was as follows: northern district manager-Jerry Lewis;
eastern regional manager of field service-Richard G.
Tell; director of field service, computer systems divi-
sion-John R. Hammond; vice president, general manag-
er, computer systems division-Howard A. Thrailkill;
group executive vice president-Jack Davis; president,
Harris Corporation-John T. Hartley Jr.; chairman of
the board CEO-Joseph A. Boyd.
1. The Montenses incident
Accardi and other witnesses testified about an incident
in which Accardi was involved in October 1978, which
resulted in a letter writing campaign by Accardi that
lasted well over 1 year. The incident involved a Mr.
Montenes, vice president of PRD, a division of Harris
Corporation.3 Accardi and Montenes were involved in a
verbal contretemps at PRD on October 12, 1978. The
merits of that dispute are not important to the instant
case; it is only necessary to state that Montenes ordered
Accardi off the PRD premises and that Accardi felt hu-
miliated and unjustly treated. Accardi informed his then
supervisor, Gil Haskell, that Montenes had ordered him
off the premises and Haskell told Accardi to meet him at
PRD a few days later when Haskell would try to adjust
the matter. On the appointed day, Accardi went to PRD
1 Respondent argues that the charge in this case was filed in Region 2
(New York City) rather than in Region 10 (Atlanta) where the discharge
occurred in violation of Sec. 102.10 of the Board's Rules and Regula-
tions, and that therefore the Board lacks jurisdiction of the case. The
General Counsel urges that Accardi worked in New York while em-
ployed by Respondent and that there was an appropriate basis for filing
the charge in Region 2. Venue is not a matter affecting the jurisdiction of
the Board, and Respondent's argument as to jurisdiction is without merit.
A41ied Products Corp., 220 NLRB 732, 733 (1975).
2 Respondent has an office in New York City which was used,.inter
alia, to store parts. Accardi had been to this office to install and maintain
a system, to retrieve stored parts, and to meet with the district manager.
It appears that the field engineers received assignments by telephone at
their homes.
8 PRD was also a customer of the computer systems division. PRD
was encouraged to purchase Harris computers although it was not re-
quired to do so.
and, not finding Haskell there, entered the premises and
handed Montenes' secretary a letter for Montenes de-
manding an apology "before 5:00 p.m. today." He was
again ejected from the premises.
As a result of these events, Accardi was barred from
the PRD account. While in Fort Lauderdale 2 months
later, Accardi spoke to Director of Field Service John
R. Hammond about the problem and Hammond told Ac-
cardi that he would be taken off the account. Ham-
monds' attitude was that Montenes was a customer and
that nothing could be done to vindicate Accardi. Ac-
cardi was not satisfied with this response, and Hammond
arranged for him to speak to Winton Boone, director of
personnel. Boone adopted the same attitude, and Accardi
informed him that he was going to write to someone else
in management.
On December 11, 1978, Accardi addressed a lengthy
letter to John T. Hartley Jr., president of the Harris Cor-
poration, stating that he had been insulted, humiliated,
and threatened by Montenes and complaining of the lat-
ter's failure to apologize. Receiving no reply, Accardi
next addressed a letter to Joseph A. Boyd, chairman of
the board of the Harris Corporation, enclosing a copy of
the letter to Hartley and complaining about the lack of
response. Accardi's letter to Boyd stated:
History has shown that incidents touching on
human rights and personal dignity that were left un-
checked by management have resulted in, among
other things, employees turning to unions to see
that grievances received proper attention; and the
denial of government contracts to an offending cor-
poration.
A few days later, Accardi received a reply from Hart-
ley stating that the delay in answering was due to the
Christmas holidays and promising an investigation and a
response. As a result, Accardi received a letter dated
January 16, 1979, from Jack C. Davis, group executive
vice president, stating that a full review of the incident
had been undertaken. David informed Accardi that he
viewed Montenes as a customer, that "the customer is
always right," and that no further action should be
taken. The letter offered apologies for any embarrass-
ment suffered by Accardi and expressed Davis' willing-
ness to discuss the matter with Accardi "if you have any
questions regarding my philosophy." Accardi telephoned
Davis to express his dissatisfaction and told him that he
would pursue the matter further.
On February 2, 1979, Accardi again wrote to Hartley,
characterizing Davis' letter as "totally inadequate" and a
"white wash," complaining that he had been insulted and
humiliated, stating that "the customer is not always
right," and expressing the expectation that Montenes
would be dealt with "swiftly and severely" and that Ac-
cardi's reputation with his coworkers and with people at
PRD would be "restored." Hartley replied to Accardi
by letter dated February 14, 1979, stating that Accardi's
reputation had not been "impacted," that no further
action was indicated and exhorting Accardi to dedicate
his energies to his job.
734
HARRIS CORP.
Accardi wrote once more to Boyd on April 26, 1979,
about a "disgraceful" and "whitewash investigation," in
a letter which, after a lengthy recitation of the slights
suffered by him in relations to the Montenes incident,
threatened an appeal to "legislators, government officials
and agencies, members of the Board of Directors, indi-
vidual stockholders, and other employees."
As a result of this letter, Accardi was contacted by
Roy Solaski, vice president of Human Resources, with
whom he reviewed the entire Montenes incident. Solaski
promised to look into the matter, and in October or No-
vember 1979 Solaski presided at a meeting between Ac-
cardi and Montenes where the two shook hands, and
where Montenes apologized to Accardi and told him
that he was not barred from PRD. After that, Accardi
went back and performed work at PRD. However, Ac-
cardi was still not satisfied because of the fact that he
had not received a letter from Solaski describing their
meeting; Accardi repeatedly insisted on receiving the
letter and it finally arrived in March 1980.
2. The November 11, 1980 memorandum and its
results
During his period of employment with Respondent,
Accardi attended three training sessions at the Harris
training department in Fort Lauderdale, Florida, the pur-
pose of which was to teach field personnel how the
Harris equipment worked and how to repair it. These
training sessions were attended by approximately 15
Harris employees. Accardi testified that for each of these
three sessions he had rented a car and selected a hotel,
both at Respondent's expense.
Around November 14, 1980, Accardi received in the
mail a memorandum dated November 11, 1980, from
Richard G. Tell, eastern regional manager of field serv-
ice, addressed to eastern field service personnel. Tell
stated that he was attaching a memorandum from John
Hammond, director of field engineering, clarifying the
company policy, "not uniformly administered" in the
past, concerning conditions applicable to training in Fort
Lauderdale.
The Hammond memorandum, dated October 29, 1980,
provided inter alia:
Motel will be arranged by Field Service Adminis-
tration .... All students will stay in the same
motel .... Transportation from the airport to the
motel will be by LIMO. Transportation from the
motel to the Harris facility and return to the motel
will be by rental car, one for every 4 students. One
student will de designated as the driver.
Tell's comments concerning the policy assured employ-
ees that "you will still have individual room accomoda-
tions [sic]" and informed them they were free to rent a
car at their own expense or to drive their own cars to
Fort Lauderdale on their own time.
Accardi testified that the memorandum of November
11, 1980, disturbed him because it referred to four em-
ployees in a car with a designated driver. Accardi did
not like the idea of driving with people he did not know
and who might be unsafe drivers. He had heard recently
of a Harris employee who had been killed driving a
rental car at a training session, and he was concerned
about the issue of safety.4 Furthermore, the memoran-
dum changed what he believed to be the current policy
that employees at training sessions could select their own
hotels.
Accardi proceeded to discuss the memorandum with
some other field service engineers. He spoke to Martin
Harvey about five or six times over the telephone. Ac-
cardi and Harvey had been complaining about a number
of matters to District Manager Lewis, and Harvey's
comment on receiving the Tell memorandum was "here's
another mandate coming down from management." 5 Ac-
cardi replied that they were not getting any answers or
any action by asking Lewis to relay their complaints to
John Hammond, and he suggested that they "tell some-
body else in management what's going on here." Accardi
offered to draft a letter. During this conversation, the
two men discussed their concern about driving with a
"designated driver" and their view that this was a safety
hazard, and they voiced their belief that the memoran-
dum reflected a policy of which they had not been
aware. A few days after this conversation when Accardi
had prepared a rough draft of a letter, he again spoke to
Harvey and, in a series of conversations, Accardi refined
the rough draft with Harvey's assistance. Harvey was
concerned about the policy relating to car rentals, but he
also wished to raise the question of salary increases and
company reimbursement rates for gas mileage. Harvey
told Accardi that he wished the letter to include a refer-
ence to the fact that employees had voiced their com-
plaints through Jerry Lewis a few months before. Ac-
cardi and Harvey discussed the fact that Hammond did
not have an office in Florida and commuted from Atlan-
ta and that this practice increased travel costs to the
Company.
Accardi testified that he and Harvey worked on the
language of the letter, and that he read Harvey the final
draft over the telephone. Harvey approved the letter and
offered to sign it; however, Accardi did not wish Harvey
to sign the letter because he thought it was "better to
have a spokesman for a group rather than complain as a
4 In fact the death of the employee, driving alone, alerted management
that its policy that employees be required to share a car was not being
consistently applied.
s Harris employees had received a letter dated May 14, 1980, from
Vice President Howard A. Thrailkill which expressed the Company's in-
tention to keep its employees' salaries competitive. In various discussions
among field engineers during 1980, several of them had expressed the
fear that since they were at the top of their range, their salaries would
remain frozen. The group had earlier expressed its dismay over frozen
salary ranges to Jerry Lewis at a meeting held in February 1980. Other
complaints relating to working conditions and field procedures were also
mentioned, including auto mileage reimbursement rates. Lewis told the
engineers that he would pass the complaints on to Hammond and Tell,
but no response was ever received from high level management accord-
ing to Accardi.
On cross-examination, Accardi acknowledged that mileage reimburse-
ment rates had been increased by Respondent, albeit not soon enough in
his view, and that Thrailkill's letter of May 14, 1980, answered com-
plaints about salary ranges raised to Jerry Lewis, but that Accardi was
not satisfied with the answer. Further, Accardi acknowledged that Lewis
told the field service engineers that the daily car allowance was being
looked into by management. Accardi received a wage increase in July
1980.
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group" and because this was a "harsh letter." Accardi
expected "hard feelings" and Harvey was a family man
while Accardi could better bear the brunt of any reac-
tion by management. Accardi also rejected Harvey's sug-
gestion that all the field engineers sign the letter because
he believed that it would be difficult to get five or six
people to agree on the precise wording of the letter over
the telephone.
Accardi testified that he spoke to Len Berdy twice by
telephone concerning the memorandum of November 11.
Berdy complained about the car rental policy and stated
that he would rather pick his own hotel. Berdy thought
it would be futile to write a letter to management, al-
though in his discussions with Accardi he expressed con-
cern over all the points raised in the draft. Accardi had
asked Berdy to speak to John Ballentine about the engi-
neers' complaints and, in a second conversation, Berdy
reported to Accardi that Ballentine said, "he would
refuse to go to training under those circumstances."
During their second conversation, Accardi read Berdy
an intermediate draft of the letter he planned to send and
advised him he would address it to Thrailkill.
Accardi also spoke to Robert Volk who expressed his
concern about the four people in a car policy and the
hotel policy. Accardi told Volk he was going to write to
Harris management, and in a second conversation he
went over the letter with Volk who agreed with the
points made therein.
Leonard Berdy testified that he spoke to Ballentine
after he received the Tell and Hammond memoranda in
November 1980. Berdy told Accardi that he disagreed
with the training guidelines in the memoranda and that
Ballentine had told him that he would rather not attend
training under those guidelines. Berdy's testimony about
the preparation of the letter generally corroborated the
testimony given by Accardi. Robert Volk testified and
he generally corroborated Accardi's testimony and pro-
vided details of his conversations with Harvey concern-
ing their complaints and Accardi's efforts to draft a
letter.
Accardi directed a letter dated November 28, 1980, to
Thrailkill, attaching the memoranda of May 14, October
29, and November 11, 1980. Because the wording of this
letter is at the heart of the instant case, it is reproduced
in full as follows:
Dear Mr. Thrailkill:
I am a Field Engineer with Computer Systems
Division, writing to you primarily concerning the
enclosed memo from R. Tell and its attached memo
from John Hammond.
It is not true that this was always Computer Sys-
tems Division policy. Previously, field engineers
were treated like mature individuals, not like chil-
dren or company property. The former policy was
that each person could select his own motel, and
was provided with an Avis rental car. Now, Field
Service management is not only proposing to tell
you where you will live, which alone is unsatisfac-
tory, but is also effectively attempting to keep you
prisoner there.
Forced group riding, with a designated driver, is
totally unsatisfactory, and possibly illegal. Being
herded into a car and entrusting your life to a
person you don't know, an unprofessional driver at
that, is out of the question. Let me cite the recent
incident in which a Harris employee, in Fort Lau-
derdale for training, killed himself in a car accident.
Imagine the repercussions if, because of a Harris
mandate, he had been chauffeuring three family
men at the time, and all were killed.
Beyond a few hundred miles, use of your person-
al car, under the conditions stated, when analyzed
in terms of the number of days pay lost while trav-
eling, motel bills, tolls, and other expenses, is a to-
tally unsatisfactory alternative. To have a reasona-
ble level of freedom and mobility in Fort Lauder-
dale, a car is a necessity, and if the company prefers
people to use their own car, it is the responsibility
of the company to pay for the time and expenses in-
curred while transporting the car there.
Since training is an integral part of Field Engi-
neering, travel policies are an important consider-
ation when accepting a job in the field, and a policy
change of this magnitude translates into a significant
reduction in effective compensation and status. It is,
therefore, not surprising that people have refused to
travel to Fort Lauderdale under these circum-
stances, making uniform administration impossible.
Also typical of the purblindness of Field Service
management is the assertion that individuality in ini-
tiative will be looked upon favorably, yet its prereq-
uisite, individuality in transportation, is forbidden.
Training conditions should not be those of a
prison, nor those of a vacation; but should permit
living life as close to normal as possible under the
circumstances.
It is particularly hypocritical that Mr. Hammond
is the author of these restrictions, since one indica-
tion of a realistic and reasonable policy is a well set
example. Mr. Hammond, and correct me if I am
wrong, does not live in Fort Lauderdale, but fre-
quently commutes from Atlanta at Harris' expense,
maintains dual offices at Harris' expense, travels be-
tween his home in Atlanta and Fort Lauderdale at
Harris' expense, does not stay in the assigned motel
or pay his own motel bills, doesn't take LIMO's
from the airport, or group ride to work, and doesn't
pay for his own car rentals when in Fort Lauder-
dale.
I believe all employees should realize the benefits
and advantages of keeping costs to a minimum.
Reasonable and rational guidelines and other consci-
entious measures should be welcome, but ill-con-
ceived despotic proclamations are not.
These travel rules are not the first, but only the
latest in a series of tyrannical commands. For the
past two years, policies and practices in Field Serv-
ice have been counter to those of the corporation in
general, and have contributed to a sharp decline in
morale.
736
HARRIS CORP.
Two flagrant examples immediately come to
mind. At a time of double digit inflation, when the
corporation was reaffirming its commitment to its
employees (a copy of your letter of May 14, 1980 is
also enclosed), Field Service management was arbi-
trarily, without explanation, and without regard to
performance, freezing some salaries and enforcing
strict range limits. With inflation reaching
18%/year and the price of gas doubling, the Field
Service personal auto reimbursement rate remained
the same for 16 months until August 1979 when it
was increased by a scant 10C/day and 2t/mile.
The implications by Mr. Tell that individual
rooms are the next to be eliminated, and that Field
Engineers, while in Fort Lauderdale, need his per-
mission to rent a car at their own expense, are fur-
ther indications of the megalomania of Field Serv-
ice management.
Engineers in the field have, in the past, voiced
complaints to Mr. Tell and Mr. Hammond through
district management and have never even received
the courtesy of an acknowledgement or a reply.
I, and many of my co-workers, believe that, if
this letter goes unanswered and receives the same
inattention that previous concerns have; if the new
travel policies are not promptly withdrawn; and if
steps are not taken toward resolution of other prob-
lems and issues that have arisen during the past two
years; then it is time for a further appeal to corpo-
rate management and/or a more organized effort to
obtain remedial action.
Yours truly,
Leonard T. Accardi
Accardi received a reply from Thrailkill dated Decem-
ber 17, 1980. The letter stated that Accardi's letter of
November 28 had been referred to Hammond for a re-
sponse, acknowledged that Accardi had bypassed his im-
mediate supervisors in past, expressed confidence in Ac-
cardi's immediate supervisors, stated that Accardi's
thoughts would be welcomed if management policy did
not serve customers and employees, and closed with the
sentiment that management policy should be made by
managers and that relations with fellow employees
should be carried out in "an atmosphere free of the
threats and warnings set forth in your letter to me."
Accardi testified that he deliberately cast his letter of
November 28 to Thrailkill in a "harsh" tone because "we
wanted to make sure we'd get an answer, and we had
been complaining and voicing concerns nicely for a long,
long time and hadn't received any responses."
3. The discharge of Accardi
In early January 1981, Tell called Accardi and asked
him to come to Atlanta to discuss the letter of Novem-
ber 28, 1980, with Hammond. Accardi met with Tell,
Hammond, and Boone on January 8, 1981. According to
Accardi, Hammond did most of the talking. When Ham-
mond referred to Accardi's complaints and the latter
broke in to say that they were not only his complaints
but represented the complaints of field engineers in the
New York-New Jersey area, Hammond replied, "this
letter is only signed by one person." Hammond told Ac-
cardi that group riding was not illegal and that the auto
reimbursement rate was changed more frequently than
asserted by Accardi. Hammond told Accardi that his
own travel arrangements were a matter reserved for him-
self and management. Hammond concluded by saying
that since Accardi "lacked confidence in management"
and refused to go along with these travel policies, he
was terminated. Accardi tried to interrupt to state that
the letter did not contain a refusal to comply with the
travel policies, but Hammond just repeated what he had
been saying. Accardi then raised some of the complaints
he had discussed with other field service engineers and
he received answers about them from Hammond.
In mid-January, Accardi received a memorandum
from Boone dated January 12, 1981, which stated that
"you have been terminated because of your demonstrat-
ed lack of confidence in Field Service management and
your perceived unwillingness to accept their authority in
setting and modifying operating policies." The memoran-
dum stated that the official date of Accardi's termination
was January 11, 1981, and it closed with certain details
relating to the mechanics of the termination.
On January 12, 1981, Accardi wrote to Thrailkill ex-
pressing dismay at his termination and requesting rein-
statement.
John R. Hammond testified that as director of field
service he was responsible for the installation and main-
tenance of computer systems at the premises of Respond-
ent's customers. Richard Tell, the eastern regional man-
ager, reported directly to him and Hammond reported
directly to Thrailkill. Hammond testified that he first
made Accardi's acquaintance during the Montenes affair.
Hammond testified that he heard of Accardi's complaint
in 1980 when Thrailkill handed him a copy of Accardi's
letter of November 28, 1980, and asked for his com-
ments. Upon reading the letter, Hammond became "infu-
riated." On December 17, 1980, he sent Thrailkill a
memorandum commenting on the substantive points
raised by Accardi concerning the motel, car rental, and
salary policies.6 In closing, Hammond wrote:
Since Mr. Accardi has expressed such a complete
lack of confidence in the Field Service Manage-
ment, it is necessary that he be offered a transfer to
another department or terminated. If he does not
transfer, then in keeping with your policy that all
terminations be approved by you in advance, I re-
quest your approval to terminate Mr. Accardi.
Hammond testified that Accardi's letter was "so strong
·. . that we couldn't, probably work together, and that
probably he couldn't do his job in the future." Hammond
stated that when he read the last paragraphs of Accardi's
letter of November 28, 1980, he understood Accardi to
be threatening "another letter writing campaign." Ham-
mond had not read the letters relating to the Montenes
6 Hammond stated that the reason for Respondent's shared automobile
policy was "economics" and that the reason for the motel policy was that
some motels guaranteed a lower negotiated rate to Harris employees.
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident but he had been told of their existence. He ac-
knowledged that Accardi had not been told that another
letter writing campaign could result in discipline or dis-
charge, and he admitted that Accardi was not told of a
set procedure to be followed in writing letters to man-
agement. Hammond also acknowledged that his memo-
randum to Thrailkill mentioned as a rationale for the
transfer or termination of Accardi only that Accardi had
expressed "lack of confidence" in management, and did
not mention the previous letter writing campaign or the
strong wording of the letter. Hammond testified that Ac-
cardi was terminated because he "didn't like the tone of
the letter." He cited particularly the words "tyrant" and
"purblindess" and similar words. Hammond admitted
that he knew both Accardi's letter and from Accardi's
statement at the final interview that he was voicing the
complaints of other employees. In addition, Hammond
had heard complaints about mileage reimbursement rates,
training policies, and the freezing of salary ranges from
other employees before Accardi wrote his letter. 7 How-
ever, Hammond believed that the letter was solely Ac-
cardi's and that the wording was his alone.
Winton Boone, director of personnel of the computer
systems division, testified that he was personally in-
volved in almost all disciplinary matters which arose in
his division.8 Boone first met Accardi during the Mon-
tenes incident. Accardi wanted Montenes to apologize to
him in front of all the people who had witnessed the al-
tercation between them and Boone told Accardi that it
was not reasonable to expect that this would happen.
Boone testified that he concurred in Hammond's rec-
ommendation to terminate Accardi for several reasons:
Boone's observation of Accardi during the Montenes
letter writing campaign had convinced him that Accardi
was unreasonable; Boone was concerned about the tone
of the November 28 letter and thought it had been writ-
ten to get Hammond "in trouble" with his supervisor;
Boone found that it was untrue, as asserted by Accardi,
that people had refused to travel to Fort Lauderdale; and
Boone did not feel that Accardi "was willing to support
the field service management decisions, and could not
basically be persuaded or be trusted to support succeed-
ing field service directives." According to Boone, he is
philosophically opposed to disciplinary transfers and he
was the one responsible for declining to act on Ham-
mond's suggestion to transfer Accardi.
Howard A. Thrailkill, vice president and general man-
ager of the computer systems division of Harris Corpora-
tion, testified that, in the particular area of the computer
industry served by Respondent, service to customers was
of paramount importance. Thrailkill had heard of Accar-
di's letter writing campaign in relation to the Montenes
incident before he received Accardi's letter of November
28, 1980. Thrailkill stated that, when he first received
Accardi's letter, he viewed it as a threat that if he did
not take immediate action Accardi would contact his su-
periors. Later, he was more concerned that the letter
I Hammond testified that salary ranges and salaries generally had been
discussed with field engineers, and that similar topics were raised in an
attitude survey conducted among field service engineers and discussed at
a followup meeting in Atlanta in August 1980.
8 Boone reported directly to Thrailkill in the table of organization.
constituted a direct personal attack on Hammond and
Tell in the nature of character assassination, and that it
showed that Accardi, who represented Respondent's pri-
mary contact with its customers, would "pick and
choose which . . . management philosophies and policies
he would . . . adhere to." Thrailkill approved Accardi's
discharge because of Accardi's rejection of policies and
his "personal assassination of people's character." 9 He
testified that he was concerned that Accardi would
refuse to travel to Fort Lauderdale for training and that
he was determined to prevent Accardi from engaging in
another letter writing campaign to the highest levels of
corporate management.
B. Discussion and Conclusions
It is evident from the facts set forth above that there
had been dissatisfaction expressed by several field service
engineers among themselves and to members of Harris
management concerning their wages and working condi-
tions, that after the receipt of the memorandum of No-
vember 11, 1980, there was further discussion of the sub-
jects of dissatisfaction by the engineers, and that this dis-
cussion culminated in the drafting of a letter by Accardi
with the participation of his fellow engineers which ex-
pressed their dissatisfaction over wages and working
conditions to a vice president of Harris Corporation. Ac-
cardi testified that in writing the letter he inserted com-
plaints suggested by his colleagues which raised matters
about which he was not personally concerned; for exam-
ple the letter mentioned frozen salary ranges, but this
was not a matter about which Accardi cared greatly be-
cause he had received a wage increase in July 1980. The
facts thus show that Accardi was engaged with field
service engineers in "concerted activity for . . . mutual
aid or protection." The participation of Accardi's fellow
employees cannot be charcterized as casual or peripheral,
as asserted by Respondent, in view of the fact that Ac-
cardi received suggestions as to the language and sub-
stantive contents of the letter from the other engineers
and he discussed the letter with them while he was draft-
ing it. Since it is undisputed that Accardi was discharged
because he wrote the letter of November 28, 1980, the
General Counsel has established that Accardi was dis-
charged for engaging in concerted activity in violation of
Section 8(a)(1) of the Act.' 0
Respondent urges that Accardi's act was unprotected
because the letter was harsh, insubordinate, and attacked
the personal characters of members of Harris manage-
ment. There is no doubt that the letter is written in a
boorish, ill-bred, and hostile tone. However, concerted
activity does not lose its protection under the Act unless
the actions of those engaging in the activity are mali-
cious, defamatory, or insubordinate. " Here, Accardi did
not maliciously interfere with the exercise of Respond-
ent's rights;' he did not engage in clearly deliberate or
9 Thrailkill personally authorized all disciplinary actions taken in his
division.
'o Rose Stores, 256 NLRB 550 (1981).
' American Hospital Assn., 230 NLRB 54 (1977).
'2 Hicks Ponder Co., 168 NLRB 806 (1967).
738
HARRIS CORP.
malicious falsehood; 13 and he did not use language
which was worse than unkind and mannerless. 14 Al-
though Accardi used the terms "purblindness," "hypo-
critical," "despotic," "tyrannical" and the like, these are
insufficient to deny his letter the protection of the Act. 5
While Respondent disagreed with Accardi and his fellow
employees that their complaints had gone unanswered,
the reasonableness of the employees' belief cannot be an
issue here.16 It is true that the letter of November 28
was written over the heads of Lewis, Tell, and Ham-
mond and was thus not directed to Harris management
through channels, but there is no basis for finding that
this was a dischargeable offense; the record contains no
evidence that Accardi was ever instructed to write let-
ters to management only through proper channels.
Indeed, even after the Montenes affair in which Accardi
wrote to both the president and chairman of the board,
Accardi was not warned that a repetition of such a letter
writing campaign could lead to discipline or discharge.
His letters to management during the Montenes incident
were peremptory in tone and doggedly insisted on an
apology even after Accardi had been instructed by mid-
level management to forget the incident; yet he was not
warned that impolite or strongly worded letters were a
dischargeable offense. Indeed, Montenes finally apolo-
gized to Accardi, an outcome which must have appeared
to Accardi as a vindication of his persistent letter writing
technique.
Respondent urges that the letter of November 28 con-
tains an untruth. Although the letter does state, "people
have refused to travel to Fort Lauderdale," Accardi tes-
tified that he was referring to reports that Ballentine had
stated he would refuse training under the conditions de-
scribed in the November 11 memorandum. This portion
of the letter is not clearly false. Respondent also argues
that the letter is insubordinate in that Accardi engaged in
an anticipatory refusal to comply with the Company's
policy. However, although Accardi did characterize
group riding as "unsatisfactory" and "out of the ques-
tion," the letter did not state that he would not comply
with the policy nor is there any proof that Respondent
asked Accardi to attend a training session and that he re-
fused to do so. 17
Respondent objects to the "shocking" and "destruc-
tive" effect of Accardi's letter. Although the letter ques-
tioned Hammond's living arrangements, the reference
was a demand for equality of treatment throughout the
Company. While Respondent may view this as an at-
tempt to stir up trouble for Hammond, I cannot find that
the mention of Hammond's situation was so malicious as
to deny the letter of protection of the Act.18
I' Jacobs Transfer, 201 NLRB 210, 218 (1973).
14 American Telegraph d Telephone Ca, 211 NLRB 782, 783 (1974),
enfd. 521 F.2d 1159 (2d Cir. 1975).
t' See American Hospital Assn., supra; Postal Service, 250 NLRB 4, 5-6
(1980); Springfield Library d Museum Assn., 238 NLRB 1673, 1674 (1979).
"6 NLRB v. Washington Aluminum Co., 370 U.S. 9, 16 (1962).
"? Respondent asserts that the letter shows that Accardi would "pick
and choose" which management policies to obey. However, there is no
evidence that Accardi was ever insubordinate nor that he ever refused to
obey a management order or directive.
is Although Accardi did not publish his letter to Harris customers or
to the public, I note that the cases dealing with that type of concerted
Respondent urges that, in view of Accardi's attitude
toward management, management reasonably "lacks con-
fidence in his contact with customers." However, aside
from the Montenes incident for which Accardi was cer-
tainly not disciplined and in which he ultimately pre-
vailed, it appears that Accardi had an unblemished
record at Harris and there is no fact appearing in the
record to show that Accardi did not conduct himself
properly with Respondent's customers.
Respondent asserts that, even if Accardi's act is
deemed concerted, Thrailkill, Hammond, and Boone
were unaware of that fact when Accardi was terminated.
However, the record shows that Hammond, who recom-
mended termination, was aware of prior complaints by
field engineers about the matters raised in the November
28, 1980 letter. Further, the letter itself refers to prior
complaints by "engineers in the field." Finally, the con-
cluding paragraph of the letter which is a demand for at-
tention and a promise of future action if the complaints
are not attended to, speaks in the name of Accardi and
"my co-workers." Thus, I find that Respondent was on
notice that Accardi was speaking for himself and his col-
leagues in the letter of November 28, 1980.'9
CONCLUSIONS OF LAW
1. Harris Corporation is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Respondent violated Section 8(a)(1) of the Act by
discharging Leonard Accardi because he engaged in con-
certed activities.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(b) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be
orderd to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged its employ-
ee Leonard Accardi in violation of Section 8(a)(l) of the
Act, I recommend that Respondent be ordered to rein-
state him to his former position or, if it is no longer
available, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings or other
monetary loss he may have suffered as a result of the
unfair labor practice, less interim earnings if any. The
backpay shall be computed in the manner set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in the manner described in Florida Steel
Corp., 231 NLRB 651 (1977).20 It is further recommend-
communication would allow a similar latitude of expression. See New
York University Medical Center, 261 NLRB 822 (1982).
19 Thus, I reject Respondent's reliance on Wright Line, 251 NLRB
1083 (1980), to the effect that Accardi would have been discharged in
any event for insubordination, lack of confidence in management policy,
and the destructive method of his protest.
20 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that Respondent be ordered to expunge from its
records any reference to the unlawful discharge of Leon-
ard Accardi on January 11, 1981, and to provide written
notice of such expunction to Leonard Accardi and
inform him that Respondent's unlawful conduct will not
be used as a basis for further personnel actions concern-
ing him.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended 21
ORDER
The Respondent, Harris Corporation, Fort Lauder-
dale, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging its employees because of their concert-
ed activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Offer Leonard Accardi full reinstatement to his
former position, without prejudice to his seniority and
other rights and privileges, and make him whole for his
2' 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.
loss of earnings in the manner set forth in the section of
this decision entitled "Remedy."
(b) Expunge from its files any references to the dis-
charge of January 11, 1981, and notify Leonard Accardi
in writing that this had been done and that evidence of
this unlawful discharge will not be used as a basis for
future personnel actions against him.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due.
(d) Post at its New York City office copies of the at-
tached notice marked "Appendix."22 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
aa If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
740