Manufacturing Services, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 254 (N.L.R.B. 1989)

254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Manufacturing Services , Inc. and Patricia Marie
Stanley. Case 5-CA-19200
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On August 8, 1988 , Administrative Law Judge
'David L. Evans issued the attached decision. The
General Counsel filed exceptions and a supporting
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 ruling , findings, and
conclusions as modified and to adopt the recom-
mended Order as modified and set out in full
below.1
The judge found, and we agree , that the Re-
spondent committed numerous independent viola-
tions of Section 8(a)(1) of the Act and violated
Section 8(a)(3) of the Act by transferring employee
Stanley from the page -rework line to the custom
manufacturing department line because employees
(with Stanley acting as spokesperson) had concer-
tedly complained about terms and conditions of
employment. The judge declined to find, however,
that the Respondent further violated Section 8(a)(3)
by constructively discharging Stanley . The General
Counsel has excepted to the judge 's dismissal of
this allegation of the complaint and we find merit
in this exception.
The facts are fully set forth in the judge's deci-
sion . The Respondent manufactures and retrofits
computer board assemblies . In May 19872 the Re-
spondent employed about 50 employees in three
departments: page -rework, page inspection, and
custom manufacturing . Bruce Patterson, vice presi-
dent and general manager , was the Respondent's
chief executive at the plant . Manuel L. Owens was
the director of operations and the immediate super-
visor of the employees . Reporting to Owens were
"line leaders" for each of the Respondent's three
departments. The line leaders were not statutory
supervisors and worked along with the assemblers
on the three lines . They distributed work and at-
tempted to solve production problems.
In May , Stanley was 1 of 10 assemblers on the
page-rework line . When the employee who was the
1 The judge inadvertently failed to include in his recommended Order
a cease-and-desist provision We shall modify the judge 's recommended
Order accordingly.
a All dates are in 1987 unless otherwise indicated.
line leader for page-rework gave notice that she in-
tended to terminate her employment , Stanley was
one of three employees chosen to be "acting" line
leader. The three employees did not receive any
wage increase as a result of being named acting
line leader, but were told by Patterson that as the
Company expanded they would be made leaders on
other lines, if not the page-rework line.
On May 19 , some employees , including Stanley,
were discussing a rumor that newly hired employ-
ees were being employed at a higher wage rate
than the current employees were getting. Stanley
volunteered to talk to Owens and see if he would
talk to the employees about the rumor. Owens
agreed and Stanley and five other employees met
with Owens in his office. Although Stanley pre-
faced her remarks'by stating that she was not the
group's spokesman , she effectively served as such.
Owens terminated the meeting by saying he would
look into the questions raised by the employees.
The following morning Owens escorted Stanley
to an office area. Owens told her that because of
"yesterday 's action all evaluations and raises had
been cancelled ." When Stanley asked if that meant
because of the meeting with the employees, Owens
replied "yes." Owens further stated that the Re-
spondent was asking anyone who was unhappy to
quit with I week 's severance pay but, in Stanley's
case , they were asking her to leave with a week's
severance pay or accept a transfer to the custom
manufacturing line. Owens explained that the trans-
fer was because the page-rework employees "as a
group" were becoming too close and that the
transfer meant that Stanley would no longer be an
acting line leader . Owens conceded that Stanley
was a good employee, but "what you did yesterday
was unionized activity" because "anytime you have
a group of people working together you have a
union." Owens added that the transfer was part of
"cross training" that employees had previously
been told they would get. Stanley told Owens,
"Monty , this is not cross training .. .. You do not
make a person a line leader one day and take it
away the next day." She asked Owens when he
wanted an answer , and he replied that he wanted
one by noon. Within an hour, Stanley told Owens
that she was quitting.
The other five page-rework employees who had
participated in the May 19 wage complaint meeting
were also called into the office by Owens. Owens
essentially told them the same thing about no eval-
uations and raises and gave them the option of re-
signing or accepting things as they were . He also
told them "it was company policy not to discuss
your wages."
295 NLRB No. 31
MANUFACTURING SERVICES 255
The judge concluded that, particularly as the Re-
spondent effectively conceded that the transfer was
"because of the prior day's activities" that the
judge found to be protected and concerted, the
transfer violated Section 8(a)(3) and (1) of the Act.
He concluded that the transfer was not "convert-
ed" to an unlawful constructive discharge , howev-
er, because even assuming that the working condi-
tions were more difficult after the transfer, they
were not both "difficult and unpleasant" under
EDP Medical Computer Systems, 284 NLRB 1232
(1987).
In our view, the judge has erred in his applica-
tion of the test for determining when an employee
has been constructively discharged . Although EDP
Medical did state the test for constructive discharge
in the conjunctive , neither that case nor its ante-
cedents were intended to be read as establishing a
twofold test for conditions sufficient to create a
constructive discharge . Thus, in Algreco Sportswear
Co., 271 NLRB 499, 500 ( 1984), relied on in EDP
Medical, the Board reiterated the test set forth in
Crystal Princeton Refining Co., 222 NLRB 1068,
1069 (1976):
First, the burdens imposed upon the employee
must cause, and be intended to cause , a change
in working conditions so difficult or unpleasant
as to force him to resign . Second, it must be
shown that those burdens were imposed be-
cause of the employee's union activities. [Em-
phasis added.]
Seen from this perspective , the judge's conclusion
that the transfer did not involve "unpleasant cir-
cumstances" does not, contrary to his analysis, end
the inquiry . Rather , it is necessary to consider all
the circumstances cumulatively including what dif-
ficulties ensue from the transfer and whether the
resulting burdens were intended to and did cause
Stanley to resign . Upon consideration of all the cir-
cumstances , we conclude that the test for construc-
tive discharges has been met here.
Turning to the facts , we note initially that Stan-
ley was singled out for special treatment because of
her leadership role in the employees ' protected
concerted action of discussing wages with the Re-
spondent's management . In this regard , Stanley was
discriminatorily invited to resign, with an induce-
ment of severance pay, and given only one alterna-
tive-acceptance of an unlawful transfer from
page-rework to custom manufacturing . As' the
judge found , the work in custom manufacturing
was more difficult in that it required assemblers to
produce printed circuit boards from drawings
rather than to rework existing printed circuit
boards as was done in page-rework. Moreover, the
judge credited testimony that it would take a
person of Stanley's proficiency on the page-rework
line from 3 to 5 months to attain the same degree
of proficiency on the custom manufacturing line.
Most telling , the transfer would have resulted in
the loss of Stanley 's position as acting line leader
and the loss of, at least, the potential for reasonable
opportunities for promotion which, by Patterson's
own account , that position entailed.
As noted by the judge , Stanley was invited to
resign and "it is clear that Respondent wanted her
to resign." Nor could the Respondent have been
surprised at Stanley 's response to the ultimatum
that Owens gave her only hours to consider.
Indeed , resignation was not an option of Stanley's
own divination but one that the Respondent itself
had advanced, sweetened with a discriminatory
offer of severance pay. Moreover , Owens made
quite explicit the connection between his ultimatum
and what he characterized as "union activity,"
sending the clear message that, should Stanley
remain in the Respondent 's employ, any such pro-
tected concerted activity in the future would result
in similarly harsh treatment . In light of all the fore-
going , we conclude that by requiring that Stanley
either resign or accept an unlawful transfer the Re-
spondent constructively discharged Stanley in vio-
lation of Section 8(a)(3) and (1) of the Act.3
ORDER
The National Labor Relations Board orders that
the Respondent, Manufacturing Services , Inc., Ma-
nassas , Virginia, its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Promulgating , or maintaining in effect, any
rule or policy that prohibits employees from dis-
cussing wage rates among themselves.
(b) Telling employees that evaluations and wage
increases had been canceled because employees had
concertedly complained to it regarding their
wages, hours, or working conditions, or because
employees had engaged in union activities.
(c) Telling employees that it had considered
firing other employees because those other employ-
ees had concertedly complained to it regarding
their wages , hours, and working conditions.
(d) Threatening employees by telling employees
that they could resign if they were not happy
working for it, indicating to employees that partici-
pation in union or protected concerted activities is
incompatible with their continued employment.
8 See generally Industrial . Supply Co., 289 NLRB 639 (1988); Reno
Hilton, 282 NLRB 819, 836 fn. 39 (1987).
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Telling employees that it had to separate a
group of employees who had exercised their rights
under Section 7 of the Act.
(f) Telling any employee that because the em-
ployee had concertedly complained to it regarding
wages, hours, or working conditions, and because
that employee had engaged in union activities, it
would rescind a promotion of the employees and
that he would require that employee to either
resign his or her employment or accept transfer to
another job.
(g) Telling employees that other employees were
troublemakers and that those other employees
would be transferred to other jobs or be required
to resign because they had engaged in union activi-
ties or protected concerted activities.
(h) Telling any employees that it had considered
firing other employees because those other employ-
ees had concertedly complained to it regarding
wages, hours, or other terms and conditions of em-
ployment.
(i) Transferring or otherwise discriminating
against its employees because they had engaged in
union or protected concerted activities.
(j) Discharging employees because of their pro-
tected concerted activities.
(k) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights guaranteed them by the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Offer Patricia Marie Stanley immediate and
full reinstatement to her former position or, if that
position no longer exists, to a substantially equiva-
lent position without prejudice to her seniority or
any other rights or privileges previously enjoyed,
and make her whole for any loss of earnings or
other benefits that she suffered as a result of the
discrimination practiced against her as prescribed
in F W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
(b) Expunge from its files any references to the
transfer of Patricia Marie Stanley and notify her in
writing that this has been done and that evidence
of her unlawful discrimination will not be used as a
basis for future personnel action against her.
(c) Post at its Manassas , Virginia facility, copies
of the attached notice marked "Appendix."4
4If 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."
Copies of the notice on forms provided•by the Re-
gional Director for Region 5 after being signed by
the Respondent's authorized representative, shall be
posted by it immediately upon receipt and be main-
tained 60 consecutive days in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps have been taken to comply.
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
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 promulgate, or maintain in effect,
any rule or policy that prohibits our employees
from discussing wage rates among themselves.
WE WILL NOT tell employees that evaluations
and wage increases have been canceled because
employees had concertedly complained to us re-
garding their wages, hours, or working conditions,
or because employees have engaged in union ac-
tivities.
WE WILL NOT tell employees that we had con-
sidered firing other employees because those em-
ployees had concertedly complained to us regard-
ing their wages, hours, or working conditions.
WE WILL NOT threaten employees by telling
them that they could resign if they are not happy
working for us or indicate to employees that par-
ticipation in union or protected concerted activities
is incompatible with their continued employment.
WE WILL NOT tell employees that we had to sep-
arate a group of employees who had exercised
their rights under Section 7 of the Act.
WE WILL NOT tell any employees that because
the employees had concertedly complained to us
MANUFACTURING SERVICES 257
regarding wages, hours, or working conditions, and
because that employee had engaged in union activi-
ties, we would rescind a promotion of that employ-
ee and that we would require that employee either
to resign his or her employment or accept a trans-
fer to other jobs because they had engaged in
union activities or protected concerted activities.
WE WILL NOT transfer or otherwise discriminate
against our employees because they have engaged
in union or protected concerted activities.
WE WILL NOT discharge employees because of
their protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed them by the
Act.
WE WILL offer Patricia Marie Stanley immediate
and full reinstatement to her position or, if that job
no longer exists, to a substantially equivalent posi-
tion without prejudice to her seniority or any other
rights or privileges previously enjoyed and WE
WILL make her whole for any loss of earnings or
other benefits that she suffered as a result of our
discrimination against her , with interest.
WE WILL expunge from our files any reference
to the transfer of Patricia Marie Stanley and notify
her, in writing, that this has been done and that
evidence of her unlawful transfer will not be used
as a basis for future personnel action against her.
MANUFACTURING SERVICES, INC.
Ronald Broun, Esq., for the General Counsel.
John A. McGuinn, Esq., of Washington, D.C., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
matter was tried before me on May 3 , 1988 . The charge
was filed under the National Labor Relations Act (the
Act), on October 30, 1987,' by Patricia Marie Stanley,
an individual . The complaint issued by the General
Counsel against Manufacturing Services , Inc. (Respond-
ent), alleges violations of Section 8(a)(1) and (3) of the
Act. Respondent filed an answer which admits jurisdic-
tion and the status of certain supervisors, but which
denies the commission of any unfair labor practices.
Respondent and the General Counsel .have filed briefs
which have been carefully considered.
FINDINGS OF FACT
I. JURISIDCTION
Respondent is a Virginia corporation with an office
and place of business in Manassas , Virginia, where it is
' All dates are in 1987 unless otherwise specified.
engaged in the manufacture and retrofit of mechan-
ical/electromechanical computer board assemblies.
During the 12 months preceding issuance of the com-
plaint , a representative period , Respondent , in the course
and conduct of said business operations , sold and shipped
from its Virginia facilities products , goods, and materials
valued in excess of $50,000 directly to purchasers located
at points outside Virginia . Therefore, Respondent is now,
and has been at all times material herein , an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent supplies printed circuit boards (or pages)
to International Business Machines Corporation, which
has a large facility also located in Manassas . At the time
of the events in question , Respondent employed about 50
employees, basically assemblers , in three departments:
page-rework, page inspection , and custom manufactur-
ing. In May 1987 Bruce Patterson , vice president and
general manager , was Respondent 's chief executive at
the plant; Manuel (Monty) L. Owens was director of op-
erations and the immediate supervisor of the employees
involved herein. Owens reported directly to Patterson;
reporting to Owens were "line leaders" for each of Re-
spondent 's three departments herein . Line leaders were
not supervisors within the meaning of Section 2(11) of
the Act. They worked along with the assemblers on the
three lines, distributed work, and attempted to solve pro-
duction problems that would occur. There is no evidence
that the work on any one of the three department lines
was any more arduous or onerous than the work on
either of the other two lines.
In May, Stanley was 1 of 10 assemblers on the page-
rework line . Other assemblers on the page-rework line
were employees Diane Winklepleck, Connie Knapp,
Vivian Wisdon, Jewell Lucas, Bonnie Shiflet, and four
others whose names do not appear in the record. The
line leader of page-rework was Brenda Way. The line
leader of custom manufacturing , which had about 33 em-
ployees, was one "Kathy" whose last name is not stated
in record.
Stanley and Winklepleck testified that, in February,
Patterson conducted a meeting of all employees at which
he made two points : first, there was an open-door policy
which permitted employees to come to management with
questions or problems , and such was encouraged ; second,
there would be future salary reviews which could result
in raises.
About May 1, Way gave notice to Respondent that
she intended to terminate her employment . Way was
asked by Patterson to recommend three employees as
candidates for Way's position as line leader. Way named
Stanley, Shiflet, and Lucas . On May 18 Way told all
three of those individuals that they would be "acting"
line leaders and that she had been informed by Patterson
'that, as the Company expanded, they would be made
leaders of other lines, if not the page -rework line. The
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
three employees received no wage increase as a result of
their being named acting line leaders.
During the afternoon break of May 19, Stanley,
Knapp, Lucas, Wisdon, and two others discussed a
rumor that a newly hired employee had been employed
at a rate higher than that which they were getting, even
though all of those in the discussion had been employed
for about 8 months . Stanley volunteered to go to the
office to see if Owens would talk to the employees as a
group about the rumor . Stanley did so and found Owens
in Patterson 's office . Stanley asked Owens if he would
meet with the employees who were then in the break-
room . Owens agreed . Stanley went back to the lunch-
room , got the assembled employees, and she and five
others returned to Owens' office. When the employees
reached Owens ' office, there was a pause for a few sec-
onds and Stanley stated : "I'm not a spokesman for this
group, but we have been here eight months and we have
heard that new employees are being hired at a higher
,rate of wages than we are ." Stanley told Owens that the
assembled employees wanted to know if the rumor was
true and why a new employee would be paid more.2
According to the credible testimony of Stanley,
Owens remarked that he did not even know what the
employees ' wages were, and "he also said that that is one
of the reasons that employees are not to discuss wages
with each other." Other employees joined in and com-
mented on the unfairness of new employees ' receiving
higher wages than those who had been employed longer.
Winklepleck , sarcastically, said that it would be advanta-
geous to the employees to quit and come back as new-
hires because then they would make more . Owens termi-
nated the meeting by saying he would look into the
questions raised by the employees and, as he acknowl-
edged in his testimony, he was becoming angry at the
end of the meeting.
On the following day, within one-half hour of report-
ing to work at 7:30 a.m., Stanley was approached by
Owens who escorted her to an office area. According to
the credible testimony of Stanley the following occurred:
Owens told her that because of "yesterday's action all
evaluations and raises had been cancelled." When Stan-
ley asked if that meant it was because of the meeting,
Owens replied , "yes." Then Owens stated that Respond-
ent was asking anyone who was unhappy to quit with a
week's severance pay. Stanley asked if that also was be-
cause of the meeting the day before; Owens replied that
it was . Owens further told Stanley : "In your case we are
asking you to leave with a week's severance pay or we
are transferring you over to Kathy's area to work." (The
reference "Kathy's area" was the custom manufacturing
line, mentioned above.) Owens told Stanley that the
reason that she was being transferred was "as a group"
the employees on page -rework were becoming too close
and Owens had to separate them . Stanley asked if her
acting line leadership position was being taken away, and
Owens replied that it was. Stanley asked if the other em-
ployees who had met with Owens were going to be told
2 Although Stanley prefaced her remarks by stating that she was not
the spokesman for the group, she assuredly was, a fact which Owens ac-
knowledged in his testimony.
the same thing ; Owens replied that they were . Stanley
protested that she had been a good employee and that all
that the employees had done the day before was come in
to ask a question . Owens replied that he knew that Stan-
ley was a good employee but, "what you did yesterday
was unionized activity." Stanley protested,the employees
had no "union intentions .". Owens replied "any time you
have a group of people working together you have a
union." Owens told Stanley that the transfer to custom
manufacturing would take effect the next day and that it
was a part of "cross training " which the employees had
previously been told they would get. Stanley told
Owens, "Monty , this is not cross training . . . . You do
not make a person a line leader one day and take it away
the next day." Owens did not reply . Stanley asked
Owens when he wanted an answer as to whether she
would be leaving or not. Owens replied that he wanted
the answer by noon.
Within an hour, Stanley returned to Owens' office and
stated that she was quitting. The General Counsel cori-
tends that Stanley's quitting was a constructive discharge
in violation of Section 8(a)(1) and (3) of the Act.
The other five employees who participated in the
meeting were also called into the office by Owens that
morning. Winklepleck credibly testified that the follow-
ing occurred when she entered Owens' office: Owens
told her that "he was really mad the day before and he
wanted to fire all of us." He told Winklepleck that she
could accept things the way . they were or leave , and she
had the end of the day to make up her mind. Winkle-
pleck and Owens discussed wages again ; Winklepleck
protested to Owens that she "didn't think it was right
that you had keep your wages a secret , because that
meant to me I could be making $6 an hour and they
could be making $ 12, doing the same thing ." Owens re-
plied that that was correct and that "the company could
pay whatever they wanted to." Owens added that "it
was a company policy not to discuss your wages."
Owens also said that certain people would be moved
around but Winklepleck was not one of them; Owens
also told Winklepleck that he had recommended special
raises for the employees , but "because of the meeting,"
he felt like he was being forced to give the employees a
raise so he had decided to cancel the special raises.
None of the other six employee -participants was called
to testify about their May 20 meetings with Owens.
Brenda Way testified that on May 20 she had two
interviews with Patterson . In addition to matters relating
to the fact that it was Way's last day on the job, Patter-
son also brought up the matter of the events of the day
before. According to the credible testimony of Way, at
the first discussion Patterson stated that he had been
upset that Stanley and the other employees had gone to
Owens' office the day before. Way further testified, cre-
dibly, that Patterson stated that "he was upset about that
and he had come in that morning with the idea of firing
them all." Further according to Way, in the first conver-
sation of that day with Patterson he stated that he was
going to cancel all scheduled wage increases of the em-
ployees.
MANUFACTURING SERVICES 259
Way further testified that later in the day she had a
second conversation with Patterson . According to the
credible testimony of Way, Patterson told her that he
wanted to separate Stanley and Connie Knapp because,
together , those two were "trouble -makers," and he "fig-
ured" that if he got Stanley on the other line "he
wouldn 't have any more problems ." Way further testi-
fied that Owens stated that Stanley "had a choice of
either going on (the custom manufacturing ) line or quit-
ting with severance pay."
On cross-examination Way stated that the work on the
custom manufacturing line was no more unpleasant than
the work on the page-rework line . On redirect she esti-
mated that it would take a person of Stanley 's proficien-
cy on the page-rework line from 3 to 5 months to attain
the same degree of proficiency on the custom manufac-
turing line.
Patterson and Owens were called as witnesses on
behalf of Respondent.
On direct examination Patterson only testified that he
could not remember the remarks attributed to him by
Way regarding a desire to separate Stanley and Knapp,
regarding a cancellation of wage increases , or regarding
moving any employees because they were "troublemak-
ers." Patterson denied telling Way that Respondent was
considering firing employees who had complained about
their -wages . The General Counsel elicited specific deni-
als of the remarks by Way which , on direct examination,
Patterson claimed only inability to remember remarks.
However, I found Way credible and do not credit the
denials of Patterson , whether made on direct or cross-ex-
amination.
Further, on cross-examination , the General Counsel at-
tempted to pin down Patterson on just what Respond-
ent's policy was about discussing wages . At one point
Patterson acknowledged : "As I stated earlier, we don't
discuss salaries openly . We don 't release salaries to out-
side sources , nor do we discuss them internally."
Regarding the decision to transfer Stanley from page-
rework to custom manufacturing , Patterson testified on
cross-examination : "Pat Stanley was looked at as an em-
ployee that wanted to move ahead , and she had talked to
Monty (Owens) several times . The reason for moving
Pat Stanley was a promotional -type opportunity move-
there was nothing detrimental to it."
Owens was asked on direct examination why Stanley
had been chosen for transfer . His reply was:
Because of the prior day's activities was the biggest
influence and we just felt that-we knew these op-
erators were going to have to be cross -trained. We
are on a contractual basis and these contracts just
don't last so it's important for us to get people
cross-trained so they can move from contract to
contract. And we knew the process had to start. It's
just because of this incident, it just triggered
quicker.
When asked why that incident "triggered" the transfer
quicker, Owens replied:
Well, Ms . Stanley was the most vocal of the group.
She seemed the most unhappy, and from a company
management standpoint she seemed the logical one
to move.
Owens further testified that Stanley told him that she did
not want to move to the custom manufacturing line, but,
"I told her that's where her job assignment was and I
needed her to respond to it ." Further according to
Owens, Stanley asked that if that meant she had to leave
the Company or take the transfer, and he replied, "that's
where your job's at." Owens further testified that Stan-
ley replied that she would get back to Owens within an
hour and give him her decision ; within the hour Stanley
returned stating that she was quitting.
Owens was asked on direct examination to state the
company rule about discussing wages . Owens replied:
"The company rule, our policy is that employees
shouldn't discuss their own pay rate with other employ-
ees. The general pay scale is , I think , common knowl-
edge ." Further on direct examination Owens was led to
specific denials of various allegations of the complaint
and the testimony of Stanley and Winklepleck . The con-
clusionary answers to the leading questions were value-
less, and they were not credible . I further discredit
Owens' denial, elicited on cross-examination , of the testi-
mony of Stanley that he told her that any time employ-
ees were acting together there was a "a union."
On cross-examination Owens stated that after the
transfer to custom manufacturing , Stanley had the same
opportunity for advancement that she had had on the
page-rework line; however , he was forced to acknowl-
edge that there were no vacancies for a line leader on
the custom manufacturing line, and , when such vacancy
occurred , Stanley, a relatively inexperienced employee
on that line, would be at a disadvantage in competing
with employees who had been on the custom manufac-
turing line longer.
B. Analysis and Conclusions
Section 7 of the National Labor Relations Act pro-
vides as follows:
Employees shall have the right to self-organization,
to form , join, or assist labor organizations , to bar-
gain collectively through representatives of their
own choosing , and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection , and shall also have
the right to refrain from any or all such activities
Section 8 (a)(1) of the Act specifies:
It shall be an unfair labor practice for an employer
to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section'7.
The group meeting of May 19 was the classic form of
concerted activity which is protected by Section 7 of the
Act from employer interference , restraint, or coercion.
Respondent 's reaction to the protected concerted em-
ployee activity of May 19 was a series of crude viola-
tions of the employees' rights under Section 7, and the
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
allegations of complaint , except for the alleged construc-
tive discharge of Stanley , require little analysis.
The Pay-Discussion Rule and the Threats
Paragraph 5(a) of the complaint alleges that on or
about May 19 and 20, Respondent, by Owens, verbally
announced and promulgated , and since that date has
maintained , an unqualified rule or policy prohibiting em-
ployees from discussing wage rates among themselves.
This allegation is supported by the testimony of Stanley
and Winklepleck as detailed above . Moreover, Patterson
and Owens admitted the existence of the policy. If em-
ployees could be prohibited from discussing their wage
rates, that most fundamental of the terms and conditions
of employment , there would be no possibility that rights
under Section 7 of the Act could be meaningfully exer-
cised . That is why maintenance of such rule is a plain
violation of Section 8(a)(1) of the Act. Jeannette Corp.,
217 NLRB 653 (1975), enfd. 532 F.2d 916 (3d Cir. 1976).
Section 5(b) of the complaint alleges that, on or about
May 19, Owens told employees that evaluations and
wage increases had been canceled because employees
had concertedly complained to Respondent regarding
their wages, hours, and working conditions and because
employees had engaged in union activities . This allega-
tion of the complaint is fully supported by the testimony
of Stanley and Winklepleck , as described above . Specifi-
cally in regard to the "union activities " allegation, Stan-
ley credibly testified that Owens told her that the em-
ployees' conduct constituted union activity or "unionized
activity," and it is plain that Owens' conduct was de-
signed to interfere with , and would have the effect of
interfering with , such activity.
Paragraph 5(c) of the complaint alleges that, on or
about May 19, Respondent, by Owens, told employees
that Respondent had considered firing employees be-
cause employees had concertedly complained to Re-
spondent regarding their wages, hours, and working con-
ditions, and because employees had engaged in union ac-
tivities . Except for the reference to union activities, this
allegation is supported by the credible testimony of
Winklepleck as described above.
Paragraph 5(d) of the complaint alleges that, on or
about May 19 , Owens threatened employees by telling
employees that they could resign if they were not happy
with the Respondent , indicating to the employees that
participation in union or protected concerted activities
was incompatible with continued employment. Except as
to the reference to union activity , this allegation is sup-
ported by the credible testimony of both Stanley and
Winklepleck . The reference to union activity is support-
ed by the credible testiniony of Stanley as to her conver-
sation with Owens on May 20.
Paragraph 5(e) of the complaint alleges on or about
May 20, Owens told employees that Respondent had to
separate a group of employees who had exercised their
Section 7 rights . This allegation is fully supported by the
credible testimony of Stanley and Winklepleck to whom
Owens made such remark on May 20.
Paragraph 5(f) of the complaint alleges that, on May
20, Owens told employees that because an employee had
concertedly complained to Respondent regarding wages,
hours, and working conditions of employees, and en-
gaged in union activity, Respondent was rescinding that
employee's recent promotion to line leader and was re-
quiring that the employee either resign her employment
or accept a transfer to another line. This allegation of the
complaint is fully supported by the credible testimony of
Stanley.
Paragraph 6(a) of the complaint alleges that, on May
20, Respondent, by Patterson , told an employee that
other employees were troublemakers , and that Patterson
was moving one such other employee to another produc-
tion line because she was a troublemaker, and that the
other employee had no choice but to resign or be moved
to another production line. Paragraph 6(b) alleges that,
on May 20 , Patterson told an employee that Respondent
had considered firing other employees because those
other employees had concertedly complained to Re-
spondent regarding their wages, hours, and working con-
ditions . The allegations of paragraphs 6(a) and (b) of the
complaint are fully supported by the credible testimony
of employee Way as described above.
All of the above allegations being supported by credi-
ble testimony as described , I find and conclude that by
each of the acts , Respondent had violated Section 8(a)(1)
of the Act.
The Transfer and the Alleged Constructive
Discharge
The General Counsel contends that Respondent con-
structively discharged Stanley.
In this case , it is abundantly clear Respondent assigned
Stanley to the custom manufacturing line because of her
protected concerted activity: The transfer was made im-
mediately after the meeting of May 19 at which Stanley
acted as spokesperson for the group ; Owens admitted
that the transfer was "because of the prior day's activi-
ties"; no one else, before or since, has been transferred
from page-rework to custom manufacturing for purposes
of "cross-training" as Respondent contends Stanley' was;
and Patterson told Way that the transfer of Stanley had
the objective of separating Stanley and Knapp, "the
trouble-makers," and nothing, according to this record,
was then said about cross-training.
It is further clear that the objective of Respondent in
transferring Stanley, if not to cause Stanley to quit, was
to forestall protected concerted activity and union activi-
ty.a As noted , Patterson told Way that the object of
Stanley's transfer was to separate the troublemakers,
Stanley and Knapp . The only "trouble" at the plant, in
Respondent 's eyes, was the protected concerted activity
which produced the meeting of May 19. Respondent im-
plemented the transfer to break up the apparent4 combi-
nation of Stanley and Knapp which had spearheaded the
apparent "trouble." Therefore, I find and conclude that
Stanley was transferred in violation of Section 8(a)(1)
and (3) of the Act.5
8 Or "unionized activity" as Owens told Stanley.
* The reason that Owens suspected Knapp of being a leader of the pro-
tected concerted activity is not stated in the record.
5 The transfer was not specifically alleged as a violation; however, the
matter was fully litigated.
MANUFACTURING SERVICES 261
However, an unlawful transfer is not necessarily con-
verted to an unlawful constructive discharge upon the
quitting of the unlawfully transferred employee.
It is clear that, at least for Stanley , the work in custom
manufacturing would have been unfamiliar, and therefore
more difficult . However, transfers (or job assignments, or
other changes in terms or conditions of employment)
which only make work somewhat more difficult do not
serve as predicates for findings of constructive dis-
charges, even where, as here, unlawful motivation is
proved . As most recently stated by the Board in EDP
Medical Computer Systems, 284 NLRB 1232 (1987):
To establish a constructive discharge , it must first
be proven that the burdens on the employee caused,
and [were] intended to cause , a change in working
conditions so difficult or unpleasant as to force the
employee to resign . Second , it must also be shown
that these burdens were imposed because of the em-
ployee's union or other protected concerted activi-
ties . See Groves Truck & Trailer, 281 NLRB [1194]
L1986); Union 76 Auto Truck Plaza, 267 NLRB 754
(1983).
The judge concluded that the Respondent's ac-
tions in eliminating Smith 's overtime and reducing
her working hours were sufficiently "difficult and
unpleasant" to force her to resign . Accordingly, he
found that the Respondent violated Section 8(a)(3)
and (1) of the Act by constructively discharging
Smith . As noted, we reverse this finding.
In our opinion , Smith 's working conditions did
not become so intolerable [as] to force her to resign.
The proper standard requires not only that the
change in working conditions be difficult and un-
pleasant but that the change be so difficult and un-
pleasant that it forces resignation . Algreco Sportswear
Co., 271 NLRB 499 (1984).
Therefore , the questions arise : were the changes to
which Stanley was unlawfully subjected difficult and un-
pleasant ; and were they so difficult and unpleasant that
they forced her resignation.
The General Counsel has shown that the work in
custom manufacturing was somewhat more difficult. It
required assemblers to produce printed circuit board
from drawings , rather than only to rework existing print-
ed circuit boards, as was done in page-rework . However,
assuming the change was of that degree of difficulty
which would qualify under EDP Medical Computer Sys-
tems, there is no evidence that the change was to more
"unpleasant" circumstances . The working environment
was the same ; the pay was the same; and the work in
custom manufacturing was within close proximity to the
work in page-rework , part of it being done in the same
room and adjacent to the page-rework employees. Any
speculation that the work in custom manufacturing
would have become more unpleasant , or unpleasant to
the degree which would force a resignation after the
transfer , is just that, speculation.
However, indulging in all of the assumptions invoked
by the General Counsel , the question remains: was Stan-
ley forced to resign? She was invited to resign ; therefore,
it is clear that Respondent wanted her to resign , but this
does not constitute "force" in any sense of the word.
The General Counsel cites several cases in which em-
ployees were forced to resign because of difficult and un-
pleasant aspects of unlawfully implemented changes in
their terms or conditions of employment . I need not dis-
tinguish these cases individually . In each, the employee
was faced with , or actually subjected to, intolerable
working conditions . Here, Stanley was subjected to noth-
ing as she quit before the physical transfer was imple-
mented . And, as noted , the argument that she was faced
with intolerable working conditions is purely speculative.
The General Counsel has two final arguments that
Stanley was forced to resign : Stanley was forced to
resign because of lost promotional opportunities inherent
in the transfer; and Stanley was forced to resign because
of the unlawful prohibition against discussing wage rates.
After Stanley quit, Shiflet moved to another city, and
Lucas was made line leader of page-rework . The com-
plaint does not allege that the failure to award the posi-
tion of full-time (rather than acting) line leader to Stan-
ley, instead of Lucas, was violative , and the matter was
not litigated . Therefore , in the posture of this case, it
must be concluded that the award of the line leader posi-
tion to Lucas was lawful.
After the lawful award of line leadership position to
Lucas, the potential for promotion on the page-rework
line became purely problematical ; we have no idea of
how long Lucas will hold the page-rework line leader-
ship job. There was also only a theoretical loss of line
leadership possibilities on the custom manufacturing line;
we have no idea how long Kathy will hold
the custom manufacturing line leadership job. An unlaw-
fully imposed loss of theoretical promotional opportuni-
ties has never been held to constitute "force" which
would support an allegation of a constructive discharge.
Finally, the General Counsel contends that Respond-
ent's instruction that ' Stanley could not discuss wages
with Other employees made her working conditions so
difficult and unpleasant so as to have forced her to
resign . As stated in Groves Truck & Trailer (cited above
in EDP Medical Computer Systems) where an alleged dis-
criminatee quit because his group was unlawfully threat-
ened with plant closure:
While the Respondent's 11 March announcement
that it expected to close shop was clearly intended
to erode support for the Union , and constituted a
threat in violation of Section 8(a)(1) of the Act, it
does not rise to the level of constituting intolerable
working conditions . A threat to close a business, or
part of it, is only a_ threat of some future action
which may or may not be carried out. It may be
nothing more than an unlawful bluff for which the
Act provides an appropriate and direct remedy.
General Casket Co., 225 NLRB 362, (1976). Unless
and until an employer carries out that threat, em-
ployees' working conditions remain static. An em-
ployee may file charges with the Board in response
to an employer's threat, but ho matter how reasona-
ble an employee's feeling of insecurity may be as a
result of an employer's plant closure threat, it does
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not permit the employee to elevate, unilaterally, the
• significance of that unlawful activity.
That is, Stanley was not immediately imperilled by the
unlawful instruction not to discuss wages, and she was
not forced to resign because of the instruction.6
In sum , neither the physical changes in working condi-
tions entailed in the unlawful transfer of Stanley from
page-rework to custom manufacturing , nor the specula-
tive loss of promotional opportunities resulting from that
unlawful transfer, nor the unlawful instruction not to dis-
cuss wage rates , "forced" Stanley to resign, as I so find
and conclude . Accordingly, I shall recommend dismissal
of the allegation that Stanley was constructively dis-
charged because of her protected concerted, or union,
activities.
CONCLUSIONS OF LAW
1. Respondent Manufacturing Services , Inc. is engaged
in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act in
the following particulars:
(a) Promulgating and maintaining a rule or policy
which prohibits employees from discussing wage rates
among themselves.
(b) Telling employees that evaluations and wage in-
creases had been cancelled because employees had con-
certedly complained to Respondent regarding their
wages, hours, and working conditions and because em-
ployees had engaged in union activities.
(c) Telling employees that Respondent had considered
firing other employees because the other employees had
concertedly complained to Respondent regarding their
wages, hours, and working conditions.
(d) Threatening employees by telling employees that
they could resign if they were not happy working for
Respondent and indicating to employees that participa-
tion in union or protected concerted activities was in-
compatible with their continued employment.
(e) Telling employees that Respondent had to separate
a group of employees who had exercised their Section 7
rights.
6 All other employees were subjected to the same unlawful instruction
not to discuss wage rates ; presumably , the General Counsel would not
argue that each of them was accordingly entitled to quit and claim un-
lawful constructive discharge.
(f) Telling an employee that because the employee had
concertedly complained to respondent regarding wages,
hours, or working conditions , and had engaged in union
activities , that Respondent was rescinding that employ-
ee's recent promotion to line lead and that Respondent
was requiring the employee either to resign her employ-
ment or accept transfer to another line.
(g) Telling employees that other employees were trou-
blemakers and that the other employees would be trans-
ferred to other jobs or be required to resign because of
their protected concerted activities.
(h) Telling an employee that Respondent had consid-
ered firing other employees because those other employ-
ees had concertedly complained to Respondent regarding
their wages, hours, or other terms and conditions of em-
ployment.
3. By transferring an employee because she had en-
gaged in protected concerted activities , and in order to
forestall potential union activities by employees, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
4. Respondent did not commit the other violations al-
leged in the complaint.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, as set forth above in sec-
tion II , above, occurring in connection with its oper-
ations set forth in section I above, have a close , intimate,
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.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that Respondent be or-
dered to cease and desist from engaging in such unfair
labor practices . I shall further order that Respondent
post a notice advising employees that it will not hereaf-
ter engage in such conduct. As Stanley quit rather than
accept the unlawful transfer to custom manufacturing,
and since the quitting did not constitute a constructive
discharge under the Act, I shall not order backpay or re-
instatement in this case.
[Recommended Order omitted from publication.]