Jhirmack Enterprises

National Labor Relations Board - Board Decisions

Apr 13, 1987

283 N.L.R.B. 609 (N.L.R.B. 1987)

JffIRMACK ENTERPRISES
Jhirmack Enterprises and Sharron Kay Allison.
Case 20-CA-16935
13 April 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN -AND BABSON
On 9 March -1983 Administrative Law Judge
William L. Schmidt issued the attached decision.'
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a letter in sup-
port of the judge's decision.
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, brief, and letter
and has decided to affirm the judge's rulings, find-
ings,2 and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Jhirmack
Enterprises, Redding, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i The judge issued an errata to his decision on 18 March 1983.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In finding Allison''s discharge to be unlawful, we rely also on the fact
that her discharge was based , in part, on an unlawful disciplinary warn-
mg she was given approximately 12 days before her discharge. This fact
is evidenced by the discharge form prepared by the Respondent, and
quoted in the attached decision, that Allison's discharge was "based on
her past record of aggravating situations" and that she had been "coun-
seled repeatedly."
Members Johansen and Babson agree with the judge that Allison was
engaged in a fundamental form of protected concerted activity when she
advised employee Ramsey, in response to his inquiry , that some employ-
ees had complained to management at the attitude survey meeting about
his slow ,lob performance. The employee complaints were prompted by
their concern that Ramsey's performance adversely affected their chances
of winning the weekly production award and increased the possibility of
overtime work. Allison's purpose in relaying the complaints to Ramsey
was to encourage him to take corrective action to protect his ,lob. Thus,
they find that Allison's conduct was clearly undertaken for the mutual
aid and protection of a fellow employee and therefore constituted actual
concerted activity. They additionally find that Allison's conversation
with Ramsey constituted a logical outgrowth of the concerted complaints
of other employees about Ramsey's job performance and a continuation
of that earlier protected concerted activity. See JMC Transport, 272
NLRB 545 fn 2 (1984), and Dayton Typographical Service, 273 'NLRB
1205 (1984), enfd, in relevant part 778 F 2d 1188 (6th Cir. 1985)
609
CHAIRMAN DOTSON, concurring.
I concur in my colleagues' finding that the Re-
spondent violated Section 8(a)(1) of the Act by'dis-
charging employee Sharon Kay Allison because of
her protected concerted activity. Unlike my col-
leagues, however, I find an adoption of the judge's
decision inadequate to provide the necessary ra-
tionale for the fording of a violation.
The record reveals that at a February - 19821
meeting of swing-shift, packaging ]line employees
with several of the Respondent's management offi-
cials, a discussion ensued concerning the inefficien-
cy of packaging line mechanic Dan Ramsey: Ram-
sey's work affected the other line employees be-
cause if he was slow in' repairing line malfunctions,
the other employees could be required to work
overtime on Saturday to meet production quotas
and could fail to win the Respondent's award of
free pizza at lunchtime to the week's most produc-
tive packaging line.
Following this meeting, RamseY, who had not
attended the meeting, had a conversation with Alli-
son that resulted in Allison's 'discharge. At the
hearing Allison and Ramsey presented different
versions of this conversation. According to Allison,
Ramsey approached her and asked if she had been
at the meeting. When Allison said yes, Ramsey
asked if anything had been said about him. Allison
asked why, and he said that he had heard "the
women were talking him down." Allison respond-
ed, "Yes. They did. Uh, they said you were pretty
slow on the machines .... Don't get mad about it
.... Just get in there and show the girls that, you
know, that you're not slow, that you can do it."
According to Ramsey, Allison initiated the con-
versation about the meeting, told hire 'that the em-
ployees talked about his work performance about
"how bad it was, how slow you was,"' and then
identified the two employees who had been the
most vocal against Ramsey. It is undisputed that
Ramsey, who was upset by what Allison had told
him, spoke to Joyce Delgado, a quality control em-
ployee, about his conversation with Allison. Subse-
quently, Supervisor Jim Hay learned of the conver-
sation and informed Plant Manager John Ruyle.
After conferring with Ramsey and several other
employees,2 Hay and Ruyle reported ,the incident
to Personnel Manager Robert Honaker, who decid-
ed to discharge Allison. On 10 ' February Hay in-
formed Allison of her discharge.
The Respondent admits, and the judge found,
that Allison's discharge was motivated by her con-
All dates are in 1982.
2 Neither Hay nor Ruyle spoke with Allison about the incident prior
to the discharge decision
283 NLRB No. 91
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
versation with Ramsey.3 The Respondent con-
tends, however, that the conversation did-not con-
stitute protected concerted activity because Alli-
son, on her own initiative, informed Ramsey that
he. had been criticized by fellow employees, there-
by, breaching the confidentiality of the 5 February
meeting and deliberately undermining the morale
of Ramsey, Dionne Alger,4 and other employees.
The. Respondent's contention is supportable only
if its witnesses are credited. The judge, however,
discredited the Respondent's witnesses, and I, like
my colleagues, will not disturb these credibility
findings. See Standard Dry Wall Products, 188 F.2d
362 (3d Cir. 1951). Thus, the judge found that the
Respondent did not impose a "general gag rule"
concerning the discussion at the 5 February meet-
ing. Further, the judge, crediting Allison's version
of her conversation with Ramsey, rejected the Re-
spondent's contention that Allison deliberately in-
tended to hurt Ramsey by revealing that he had
been the subject of discussion at the meeting.
Rather, the judge found that Allison's "primary
purpose in responding to the inquiry which
,Ramsey initiated was. to confirm to him that ad-
verse comments had been, made to management
about his work and to encourage him to take cor-
rective action."
Based on this finding, I conclude that Allison's
remarks to Ramsey constituted actual concerted ac-
tivity, s Thus, the conversation consisted of Ramsey
seeking information from Allison in an attempt to
protect his job and Allison responding with the re-
quested information .and with words of encourage-
ment to Ramsey to work faster and thereby protect
his job. Such an interaction of two employees is
actual concerted activity for "mutual aid or protec-
tion" clearly, envisioned within Section 7, and
therefore a discharge motivated by such activity
violates Section 8(a)(1).
The inquiry, however, cannot stop at this junc-
ture. 'Me, Respondent established through the testi-
mony of its witnesses that it discharged Allison be-
cause of its good-faith belief that she had engaged
p I am puzzled by my colleagues' statement that in finding Allison's
discharge to be unlawful, they also rely "on the fact that her discharge
was=-based, in part, on an unlawful disciplinary warning she was given
approximately 12 days before her discharge." Although I agree with
their adoption of the judge's finding that the prior warning was unlawful,
the judge found no' connection between the warning and the discharge.
4 According -to_the Respondent, Alger was upset by-Allison 's disclo-
sure to Ramsey that Alger had been highly critical of Ramsey at the 5
February meeting.
5 In light of this conclusion , it is unnecessary to apply the-Meyers defi-
nition of when the act of a single employee is or is not concerted. See
Meyers Industries
,
268 NLRB 493 (1984), remanded sub nom. Frill v.
NLRB, 755 F.2d 941 (D C. Cir. 1985), cert. denied 474 U.S. 948 (1985),
reaffd 281 NLRB 882 (1986). I note, however, my disagreement with my
colleagues' "logical outgrowth" theory. See my dissenting opinion in
Every Woman's Place, 282 NLRB 413 (1986).
in misconduct, namely,, that she had breached the
rule of confidentiality imposed at the 5 February
meeting and that she deliberately inflicted emotion-
al harm on Ramsey. To, establish a violation under
these circumstances, the General Counsel must
prove that Allison did not, in fact, engage in such
misconduct. NLRB v. Burnup & , Sims, 379 U. S. 21
(1964); Rubin Bros. Footwear, 99 NLRB 610 (1952).
The General Counsel in this case met this
burden. The General Counsel' s- witnesses testified
that the events did not occur' as the Respondent en-
visioned and that Allison was not guilty, of any
misconduct in the course of this concerted activity.
As a result she did not'lose the protection of Sec-
tion 7 of the Act. As noted above,, the judge cred-
ited the General Counsel's witnesses. Under these
circumstances, the General Counsel-, established,
and I find, that the Respondent violated Section
8(a)(1) of the Act by discharging Allison for her
protected concerted activity.
Maxine Auerbach, Esq., for the General Counsel.
Ray Vetterlein (Labor Relations Associates), of Brisbane,
California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. ScHMIDT, Administrative Law Judge.
This matter was heard by me on December 9 and 10,
1982,1 at Redding, California. The proceeding is based
on a charge filed against Jhirmack Enterprises (Respond-
ent) by Sharron Kay Allison (Allison) on March 2,. and a
complaint issued by the Regional Director for Region 20
of the National Labor Relations Board (the NLRB) al-
leging that Allison's February 10 discharge violated Sec-
tion 8(aXl) of the National Labor Relations Act (the
Act). The Respondent's timely answer denies that the
Respondent engaged in the alleged unfair labor practices.
On the entire record,2 my observation of the demean-
or of the witnesses, and my careful consideration of the
posthearing briefs filed by the General Counsel and the
Respondent, I make the following -
FINDINGS OF FACT
1, JURISDICTION
The complaint alleges , and the answer admits, that the
Respondent, a corporation , was engaged in the manufac-
ture of personal care products at Redding, California,
and that during the calendar year preceding the issuance
of the complaint the, Respondent sold and shipped prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly to customers located outside the State of Califor-
nia. On the basis of the foregoing, I find in accord with a
1 Where not specified , dates refer to the 1982 calendar year.
8 The transcript and all formal papers are corrected, sua sponte , to,re-
fleet the proper spelling of Allison 's given name as reflected by her signa-
ture on the original charge.
JHIRMACK ENTERPRISES
further allegation in the complaint that was admitted by
Respondent that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. I, further find that it would effectuate the
purposes of the Act for the Board to assert jurisdiction
over the labor dispute involved here.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relevant Facts
The complaint, as amended , alleges that Allison was
discharged in violation of Section 8(a)(1) of the Act on
February 10 and that she was unlawfully reprimanded on
January 29. The answer admits that Allison was dis-
charged on the aforementioned date but the Respondent
argues forcefully that her discharge was for cause. It is
undisputed that Allison was discharged because she
spoke to a packaging line mechanic, Dail Ramsey, about
matters involving Ramsey that were discussed at a com-
pany attitude meeting on February 5. Essentially the
issue in the discharge -aspect of the i case boils down to
whether Allison's conduct in speaking with Ramsey was
protected conduct or was, as the, Respondent claims, an
aggressive verbal assault by Allison on Ramsey which
was not protected by the Act.
Allison was hired by the Respondent as a packer on
May 11, 1981, and she remained in that position until her
discharge. At the times relevant here Allison was work-
ing on the swing shift. The scheduled worktime for that
shift is from 3:15 p.m. to 12:15 a.m. The shift supervisor
for Allison's area was James Hay. The employees at the
Redding plant are not represented by any labor organiza-
tion.
The Respondent's personnel manager, Robert Hon-
aker, testified that he perceived Allison as an instigator
of trouble on her shift. Honaker's perception was
grounded on complaints that Allison had made to the
management that Shift Supervisor Hay on the swing shift
packaging line had shown favoritism toward Joyce
Lewis, a relatively junior employee in the 'department,
by Hay's work assignments to Lewis and by Lewis' se-
lection as a leadlady.3
Other employees in the department shared Allison's
complaint and it was sufficiently vocalized so as to result
in an admonition to Hay from his superior when Hay re-
ceived his annual evaluation in November 1981, to avoid
showing favoritism, However, in Allison's view, Hay's
favoritism toward Lewis was not discontinued and in
mid-January 1982, Allison went to Plant Manager John
Ruyle's office where she spoke with him about what she
perceived as Hay's continuing display- of favoritism
toward Lewis.4 In addition, Allison spoke with other
In addition, Allison had been vocal in her complaints about the Re-
spondent's policy of making holiday and vacation payments to second-
and third-shift employees on the basis of the hourly rate of pay for day-
shift workers that did not include the shift differential
4 Allison's visit with Ruyle in January appeared to have resulted from
the recent announcement 'that Lewis was going to become a leadlady. In
discussing matters concerning lead employees with Allison and other em-
ployees, Respondent's officials appeared to regard lead personnel as a,
part of the "management team " However, there is insufficient evidence
in this record to warrant the conclusion that the Respondent's lead em-
611
employees in the department and urged them. to voice
their displeasure of Hay's activities to Ruyle also.
Apparently the Respondent's officials were growing
weary of Allison's complaints about Hay and Lewis. Al-
lison was summoned to Ruyle's office on January 29
where she was verbally reprimanded by Ruyle in Hay's
presence for "causing trouble in packaging with one of
the employees." In addition, a written reprimand was
placed in Allison's personnel file. That reprimand recited
that the interview with Allison was initiated because of
"bad feeling and irritation ,growing on shift which was
was felt to be fed by Kay." Hay provided further details
for the written reprimand that read as follows:
Thru observation and comments it was felt that Kay
was stirring up ill feelings among herself and other
packagers toward Joyce Lewis. She was confronted
with this and claimed it not to be true. I was aware
that Kay and other packers felt favoritism was being
shown toward Joyce Lewis and I told them I would
review the situation but I did not feel that Kay was
leaving it at that. She denied saying anything that
would have caused trouble and felt she was being
singled out because of her past record. It was sug-
gested that she just do her own job and only worry
about herself. Will review situation in 30 days. [Em-
phasis added.]
The Respondent's brief summarized its impression of Al-
lison as a "disturbing influence" who was involved in a
lot of agitation concerning how lead employees were se-
lected, who was selected, whether overtime was manda-
tory, how overtime ' was assigned, and what job assign-
ments were to be ' given "and so forth and _ so on." Re-
spondent concedes that the employees "legally have a
right to gripe" about the foregoing matters and that Alli-
son was a "prime instigator in the griping." However,
the critical issue from the Respondent's viewpoint was
whether Allison's activities were, as the General Counsel'
in effect claims, for the mutual aid and benefit of em-
ployees or whether Allison's actions were, as the Re-
spondent in effect claims, for other motives disruptive to
production that are, not protected., The Respondent is
candid in its assertion that by the time the events of early
February occurred, it was just plain tired of Allison's at-
titude.
On February 4 and 5, certain of the Respondent's man-
agers conducted small group meetings with employees to
report the results of an attitude survey that had been ad-
ministered to employees in late 1981. Allison attended
one of these meetings on February 5. The Respondent
was represented by Vice President Robert Cox, Ruyle,
and Honaker. There is a dispute whether employees
were told that matters discussed' in the meeting were to
be treated as confidential and not discussed outside the
meeting room or whether employees were invited to vo-
calize their complaints on the promise that they- would
be treated as confidential vis-a-vis the employees' super-
visors who were 'not present for the attitude meetings.
ployees are supervisors or agents within the meaning, of the Act or mana-
gerial employees.
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Allison testified that at the meeting she attended, em-
ployees received the following admonition:
He [Cox] first wanted everyone to feel like you
could say whatever you wanted to say. He said that
this was a-more or less a gripe session than any-
thing, uh, for us to let all of our angers out toward
our supervisors, if there was any-anything that had
to do with, uh, with the, uh . . . inside packaging
conditions, uh, against other packers, anything, and
we were all just supposed to tell everything the
way it was and that there'd be nothing held against
us and our jobs wouldn't be in jeopardy, that this
[was] what this meeting was about. There had been
too many gripes been brought, evidently, to the
head of departments and they wanted to get every-
thing out in 'the open, and so everybody could say
whatever they had on their minds.
Several other employees testified about this matter.
Sharon Brown testified that at the outset of the meeting,
employees were told to "let it all hang out, all of our
gripes." Brown said that no one told those in attendance
that they could not, talk among themselves -about the
meeting and that "[the meeting] was talk in the depart-
ment from the time it began until the time it ended .. .
it was just constant ." Similar testimony was given by
Christina Wolff. Ann Sjostron testified that she attended
the same attitude meeting that Allison had attended and
that after the meeting was over she thought "everybody
was talking about it." Michelle Ramos -'testified that at
the attitude meeting she attended, a company - official,
whose `name she could not recall addressed the group for
the purpose of inviting the employees- to speak up about
'their" gripes and to advise them that none of what they
,said would get back to their supervisors. Ramos said that
nothing was said about employees talking among them-
selves about matters discussed at the attitude meeting and
after she returned to work, she heard other employees
(Wolff in particular) talking about what had been said in
another of the 'attitude meetings . Honaker testified that
he did not really expect the employees not to talk among
themselves about matters that were discussed at the atti-
tude meetings.
It is undisputed that in the course of the attitude
meeting ' that Allison attended there was a discussion
about the speed and abilities of the packaging line me-
chanic, Dan Ramsey. Those who spoke up about
Ramsey complained about his lack of speed in repairing
the packaging line breakdowns and, as a consequence,
the efficiency of the line was impaired by Ramsey's abili-
ty or lack thereof. Ramsey's work had a direct bearing
on the work lives of the other packaging line employees.
If Ramsey took too long to repair line malfunctions, the
chances for the swing-shift, packaging employees receiv-
ing the Company's free pizza award on Friday night
would be greatly diminished.5 And if a line was closed
s, On Fridays, the Company treated the week' s most productive pack-
aging line to free pizza at lunchtime
down-for repair too long, there was always the possibili-
ty that Respondent would require the packaging ,line em-
ployees to work Saturday overtime in order to- meet pro-
duction quotes. In short, 'Ramsey's role had the- potential
of affecting all the packaging employees and there was a
feeling among a significant group of employees- that, at
that particular time, Ramsey was slowing up the oper-
ation.6
It is undisputed that following the attitude meeting
that Allison attended, she spoke to Ramsey (who had not
attended the meeting) and apprised him of the complaints
that had been made about him at the meeting. Allison's
version of the manner in which her conversation with
Ramsey arose and the substance of that conversation was
as follows:
A. I was working on the, line that Dan was a me-
chanic on and he came over tome and he asked me
that-if I had been to the meeting that was held
that afternoon, and I told him yes, that I had been
there. And he asked me if the-there had been any-
thing ,said at the meeting about him. And I asked
him "Why?" And he said he had heard that there
was-the women were talking him down. And I
said, "Yes." I said, "They did. Uh, they said that
you were pretty slow on the machines." And I said,
"Don't get mad about it." I said, "Just get in there
and show the girls that, you know, that you're not
slow, that can do it." And he says, "Okay." He
said, "Thanks for telling me," and he-left.
Q. Why did you tell him?
A. Because the things that was being said in the
meeting about him, I felt like his job was in jeop-
ardy. He's my friend. I like Dan. I feel sorry for
him. He had,, a wife and two kids and jobs were
hard to find. So I told him. And, uh-for that
reason plus the reason that if it would speed him up,
it's going to get our production out, for us, we
won't have to work Saturdays, and we'll-beat the
day shifts and well get the pizza.7 ,
Ramsey, who was still employed by-the Respondent at
the time of the hearing, was called as a witness by the
Respondent to give his version of his February 5 ex-
change with Allison. According to Ramsey, he was
going along the packaging line adjusting the torque on
the capping machines. Before approaching the area
where Allison was working, Ramsey had been, in the
area where Dee Alger worked and had been speaking
with Alger as he was performing his job. Alger had been
particularly vocal in the attitude meeting about Ramsey's
deficiencies. When Ramsey approached Allison's work
area, Ramsey said that Allison remarked: "I don't see
how people can laugh and joke with you after what they
said." Ramsey's testimony about the remainder of his
conversation with Allison at this time was as follows:
B Ramsey had worked for the Respondent for about 5 years at the time
but only recently had been promoted to the line mechanic's job.
7 Other testimony establishes that Allison 'had known Ramsey as a
youth. Allison had been a personal friend of Ramsey's mother when she
was living and often visited-Ramsey's childhood home
, JHIRMACK ENTERPRISES
A. Okay. I was surprised , and then she came out:
"I'm going to tell you this as a friend that the 'girls
and me was talking about your work performance,
bow bad it was, how slow you was." And then she
made a statement like , "There is -too [sic] girls espe-
cially who was doing all the talking."
Then I asked her who it was. She said Dee Alger
and Faithhope [Castellanos].
Q. Anything further that you recollect about the
conversation?
A. Just that right now. Kind of lapse my memory
right now.
Ramsey testified that he was upset by what Allison had
said to him and that it continued to bother him as he
worked the remainder ' of the evening. According to
Ramsey it was "an upsetting thing" to learn that his
'fellow workers did not believe that he was doing a good
job.
Ramsey testified that later that evening he spoke to
Joyce Delgado, a quality control employee, in Delgado's
office, about the substance of Allison's conversation with
him, Apparently, Delgado passed that information along
to others. On Monday, February 8, Hay spoke to
Ramsey about Allison's conversation with- him. Alger
also found, out about Allison's conversation with Ramsey
and, on Tuesday, February 9, she discussed the matter
with Hay. Alger complained to' Hay about Allison's
action in speaking to Ramsey concerning those matters
that she had raised about Ramsey at the attitude meeting.
Hay testified that he set out to investigate Alger's allega-
tion: His investigation consisted of asking Ramsey if Alli-
son had talked to him and when Ramsey acknowledged
that that was the case, Hay "asked Ramsey to tell him
what Allison had said. Hay did not provide any testimo-
ny with respect to Ramsey's response . Hay did testify
that he next went to Ruyle with the information con.
cerning the Allison-Ramsey conversation.'
According to,Allison, on Wednesday, February 10,
Rosemary Lewis, the head lead employee on ' her shift,
approached her about 6 pm. and told her 'that Hay
wanted to speak to her in the lunchroom. Allison com-
plied and,' when she arrived 'at the lunchroom and had
seated herself, Hay began by saying, "Kay, you're termi-
nated." Allison testified that the conversation 'continued
as follows:
I asked him "Why? What did I do?" And he said,
"'You were talking . You're being terminated for
talking." And I said , "I-that I didn't understand
what ' he was talking about, you know, that there
wasn't a rule that we couldn't talk." And he said,
"]['m referring to the attitude meeting .", He said,
"'You told Dan Ramsey what was said about him at
the meeting." And I said, uh, "Yeah, I did. I-there
was nothing at the meeting that said we couldn't
talk to the other employees. The meeting stipulated
that we could not-what we had to say at the meet-
ing wasn't going to get back to , you and we could
say whatever we had to say about anything or any-
body. And he said. "No, that you told Dan
Ramsey what was said and you violated the confi-
613
dentuality [sic] of an employee and you're terminat-
ed."
A. And I said, "Well, then if you're going to ter-
minate me for talking about the meeting, then you
should go in and get everybody in the packaging
room and terminate them because we were all talk-
ing about it at break and at, lunch." And he said,
"I'm not worried about the others. I'm worried
about you."
Q. Did he give-you any other reason for your
termination?
A. No. He told me that he had told me at a prior
meeting with John Ruyle and himself and me that
he had warned me then to mind my own business
and worry about Kay Allison, and he said I didn't
do that, so I'm terminated.
Hay did not testify about the substance of the dis-
charge conversation that he had with Allison on Febru-
ary 10.8 However, the discharge form, dated February 11
that Hay prepared is in evidence. On that form, Hay
listed "violation of policy" and "inability to get along
with fellow employees" as the bases for Allison's dis-
charge. The handwritten details recite:
Breach of confidentially [sic] of attitude survey
meeting and undermining morale and harmony of
shift. Referring to meeting of Jan 29th 1982, 'main
point that Kay was left with was "just worry about
Kay Allison and no one else."
Incident-some girls , in attitude meeting; brought
up ability of one of the mechanics on swing shift.
That evening Kay took it upon herself to inform
that mechanic (Dan Ramsey) of the girls" feelings.
This lowered the self esteem, and morale of Dan
plus washed away the feeling of freedom the girls
had to speak out at meeting without repercussions.
This, based on her past record of aggravating situa-
tions and disrupting harmony,, it was felt in the best
interest of - Jhirmack to terminate her., Kay's work
ability was fine but she had been counseled repeat-
edly'to only worry about herself and avoid confron-
tations. She failed to do this.
B. Additional Findings and Conclusions
Section 7 of the Act provides, inter alia, that:
Employees shall have the right ... to engage in
other concerted activities for' the purpose of ...
mutual aid or protection ....
Section 8(a)(1) of the Act makes it an unfair labor prac-
tice for an employer.
to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7
s Ramos testified that Hay told her a day or two later that Allison
"got fired because she was talking when she wasn't supposed to be."
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
An employer is not at liberty to punish an employee by
discharging her for engaging in concerted activities that
Section 7 of the Act protects. NLRB v. Washington Alu-
minum Co., 370 U.S. 9, 17 (1962).
The findings in section II,A, can lead to only one con-
clusion, namely, that Allison was discharged by Hay be-
cause she told Ramsey some of the other employees had
complained about his work at the attitude meeting on
February 5. Although Hay's written explanation on the
Respondent's discharge form, Allison's version of the
discharge conversation, and Ramos' testimony about
Hay's postdischarge explanation for Allison's termination
all suggest that Allison was fired because Hay believed
that she had violated a confidentiality- rule regarding the
attitude meeting, the Respondent's brief all but aban-
doned that argument in favor of an assertion that Alli-
son's purpose was to deliberately inflict deep emotional
pain on Ramsey in order to retaliate against leadlady
Faithhope Castellanos and employee Dee Alger.9 Thus,
the Respondent's brief asserts:
What Ms. Allison willfully did to Mr. Ramsey is
cruel, and hurtful, and in the Employer's viewpoint,
much more serious than if she had walked up and
struck Mr. Ramsey in the face.
In effect, the Respondent argues that Allison's actions
were so destructive of employee morale as to merit her
discharge. For these reasons, Respondent contends that
Allison's disclosure was unprotected and that her dis-
charge was for cause.
The Respondent's argument that Allison's underlying
motive for informing Ramsey about the discussion at the
attitude meeting that she attended was to retaliate against
Castellanos and Alger is grounded on the testimony of
leadlady Rosemary Lewis. According to Rosemary
Lewis, Alger reported to her during the evening of Feb-
ruary 5 that Ramsey was upset and would not speak
with her. Lewis said that later that same evening Castel-
lanos approached -her and said that she felt that Allison
told Ramsey about what had been said at the attitude
meeting because Castellanos had directed Allison to load
an entire skid of packages earlier that evening after Alli-
son had, in effect, duped Alger into loading a whole skid
(which would have involved doing half of Allison's
work at that particular time).
9 In any event, I am satisfied that there is no meritorious, factual, or
legal basis justifying Allison's discharge on the ground that the matters
discussed at the attitude meetings were confidential. Thus, it is my con-
clusion that Cox's remarks at the attitude meeting that Allison attended
were intended as a promise by the officials present not to discuss the sub-
stance' of employee remarks with the employees' supervisors rather than
as a general gag rule. Such a fording is consistent with Honaker 's testimo-
ny that the Respondent did not expect that employees would not discuss
what occurred at the meeting after they left the meeting room and the
testimony of several employees that there was widespread discussion of
the meetings on the production floor Moreover, in view of the ultimate
finding here that Allison's true object was to respond to Ramsey's in-
quiry as to whether , there had been criticism of his work and to encour-
age him to a better performance, I find that the Respondent's business
need for such a prohibitive rule is insufficient to override Allison's right
to make this type of disclosure to Ramsey in an effort to protect Ram-
sey's job. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); NLRB v.
Washington Aluminum Co., supra; American Hospital Assn., 230 NLRB 54
(1977); Blue Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976).
At the outset, the Respondent's contention requires a
credibility resolution favoring Ramsey's version of the
exchange that he had with Allison on the evening of
February 5. Ramsey was -not a convincing witness. In
addition, the General Counsel demonstrated on cross-ex-
amination that Ramsey ' had cooperated with the Re-
spondent's prehearing preparation of its case against Alli-
son in several significant respects. Moreover, in the pre-
hearing affidavit provided by Ramsey to the General
Counsel's investigating agent only a month after-the rele-
vant events, Ramsey did not indicate that Allison had
told him that Alger and Castellanos were the individuals
who had complained about him at the attitude meeting.
Ramsey attempted to explain his recent recollection of
this vital centerpiece to the Respondent's case by making
a clumsy assertion that his recollection had improved by
the time of the hearing, notwithstanding that at another
point in his testimony, Ramsey acknowledged a "lapse"
in his memory with respect to the February 5 conversa-
tion with Allison.
By contrast, Allison was a convincing witness who ap-
peared to be making a sincere, earnest effort to truthfully
relate the events to the best-of her ability. However, Al-
lison was insistent that the attitude meeting had occurred
on February 3,and the Respondent asserts that Allison's
error in this regard is a deliberate effort' to cover up the
fact that the whole incident was partof a plot by Allison
to get even with Alger and Castellanos. I reject that, ar-
gument. Allison's testimony on several matters, was con-
sistent with the available extrinsic evidence and the Re-
spondent's evidence that Allison was angry with Alger
and Castellanos over the loading of the skids is grounded
solely on the hearsay testimony of Rosemary Lewis con-
cerning Castellanos' speculation. Indeed, Castellanos was
not even called to testify nor was her absence explained.
This circumstance alone merits an adverse inference
about the Respondent's contention. This is especially true
where, as here, Alger was called as a witness and gave
no indication that Allison exhibited or harbored any ill
feelings over the loading of the skids as the. Respondent
contends. Accordingly, I find that Allison's error in her
testimony about the date of the attitude meeting is an in-
significant mistake and that, in general, Allison's testimo-
ny is as reliable as one could reasonably expect consider-
ing the passage of time. For these reasons, I have cred-
ited Allison's testimony where it conflicts with the testi-
mony of the Respondent's witnesses.
In view of the foregoing, I reject the Respondent's
contention that Allison set about to deliberately injure
Ramsey by confirming the fact that there had been com-
plaints about his job performance at the attitude meeting.
Although it is very likely that Ramsey was disturbed by
this news, especially in view of the limited time he had
been working .in the mechanic's position, the only fair
conclusion from the record before me is that Ramsey's
reaction was the product of the fragile human ego and
not the handiwork of an evil woman scheming to avenge
an affront by Castellanos. Allison's-professed affinity for
Ramsey resulting- from her friendship with his deceased
mother is a far more logical explanation for her motive
in making the disclosures about the job performance crit-
JHIRMACK ENTERPRISES 615;
icism that had been leveled at Ramsey; than is the sinister
explanation propounded by the Respondent. As I am sat-
isfied that Allison's explanations of her motives in talking
to Ramsey are truthful, I find that her primary purpose
in responding to the inquiry that Ramsey initiated was to
confirm to him that adverse comments had been made to
management about his work and to encourage him to
take corrective action. Viewed from this perspective, it is
clear that Allison's discussion with Ramsey on February
5 was a fundamental form of concerted activity in aid of
a fellow employee and, hence, it was conduct protected
by Section 7 of the Act. Bullocks, 247 NLRB 257 (1980).
And see Mushroom Transportation Co. v. NLRB, 330
F.2d 683 (3d Cir. 1964). As it is undisputed that Allison
was discharged as a direct consequence of that discussion
with Ramsey, I find that her discharge violated Section
,$(a)(1) of the Act.
In addition, it is concluded that as the written warning
entered in Allison's personnel file following the, January
29 disciplinary interview discloses that Respondent's offi-
cials had identified Allison as an "instigator" of employ-
ee complaints concerning Hay's alleged favoritism
toward Joyce Lewis and, as the warning was -issued for
Allison's role concerning this complaint, the Respond-
ent's disciplining of Allison on this occasion also violated
Section 8(a)(1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of
the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening, and obstructing com-
merce and the free flow of commerce. '
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is recommended that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act.
With respect to the affirmative remedial action, it will
be recommended that the Respondent be ordered to
offer Allison immediate and full reinstatement to her
former or substantially equivalent position of employ-
ment, discharging if necessary any individual hired after
her termination, , without prejudice to the seniority or
other rights and privileges enjoyed by her prior to her
February 10 discharge. It will be further recommended
that the Respondent be ordered to remove from its
records any reference to Allison's termination and her
January 29 reprimand. Sterling Sugars, 261 NLRB 472
(1982). It will also be recommended that the Respondent
be ordered to make Allison whole for the losses which
she suffered as a result of her unlawful discharge. The
amount of backpay due Allison shall be computed in the
manner provided by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest thereon as provided
by the Board in Olympic Medical Corp., 250 NLRB 146
(1980), and Florida Steel Corp., 231 NLRB 651 (1977).
And see generally Isis Plumbing Co., 138 NLRB 716
(1962). Finally, it will be recommended that the Re••
spondent be ordered to post the notice to employees at-
tached hereto as an appendix for a period of 60 consecu-
tive days in order that employees may be apprised of
their rights under the, Act and the Respondent's obliga-
tion to remedy the unfair labor practices found above.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce or .in an
industry affecting commerce within, the meaning of Sec-
tion 2(6) and (7) of the Act.
2. By confirming Dan- Ramsey's inquiry as to whether
there had been a criticism of his job performance at the
Respondent's February 5, 1982, attitude meeting, and by
complaining to management about supervisors favoring
certain employees, Sharron Kay Allison was engaged in
a form of concerted activities guaranteed to employees
by Section 7 of the Act.
3. By discharging Sharron Kay Allison because she en-
gaged in the activity specified in, paragraph 2, above, in-
volving Ramsey, and by placing a written warning in
Sharron Kay Allison's personnel, file following a discipli-
nary interview on January 29,'1982, the Respondent has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
ORDER
The Respondent, Jhirmack Enterprises, Redding, Cali-
fornia, its officers; agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or, disciplining any employee for exer-
cising rights guaranteed by Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees because they choose to
exercise the rights guaranteed to them by Section 7 of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to reinstate Sharron Kay Allison and make
her whole in the manner specified in the remedy section
of the decision.
(b) Remove from its files any reference to the dis-
charge of Sharron, Kay Allison on February 10, 1982, or
the reprimand of Allison on January 29, 1982, and notify
her in writing that this has been done and that evidence
of this unlawful conduct will not be used as a basis for
future personnel actions against her.
ao All outstanding motions inconsistent with the recommended Order
are denied. If no exceptions are filed as provided by Sec 102 46 of the
Board's - Rules and Regulations , the findings, conclusions, and recom-
mended 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
purposes.
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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 or useful to a determination of the amount of
backpay due under the terms of this Order, the propriety
of any offer of reinstatement made to Sharron Kay Alli-
son, and Respondent's compliance with, -in order to
comply with paragraph 2, subparagraph (b), of this
Order.
(d) Post at its plant in Redding, California, copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive 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 the Re-
spondent has taken to comply.
' 1 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
- To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge or discipline any employees
because they choose to exercise any of the rights that are
guaranteed by the National Labor Relations Act.
WE WILL NOT in any' like or related manner interfere
with, restrain, or coerce any of our employees because
they choose to exercise the rights set forth above that
are guaranteed by, Section 7 of the National Labor Rela-
tins Act.'
WE WILL offer to reinstate Sharron Kay Allison to her
former position, and WE WILL reimburse her for any
losses resulting from' her discharge on February 10, 1982.
We are required to do this because the National Labor
Relations Board found that we violated the law by dis-
charging Sharron Kay Allison on February 10, 1982, 'for
engaging in activities that are protected by the National
Labor Relations Act. ,
WE WILL remove from the records of Sharron Kay
Allison any written reports, notations, or memoranda re-
flecting her February 10, 1982 reprimand, and WE WILL
notify her in writing that this has been done and that evi-
dence of these unlawful actions will not be used as a
basis for future discipline against her.
JHIRMACK ENTERPRISES
The National Labor Relations Board has found that we
violated the -National Labor Relations Act and has or-
dered us to post and abide by this notice.