Martin Marietta Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1989

293 N.L.R.B. 719 (N.L.R.B. 1989)

MARTIN MARIETTA CORP 719
Martin Marietta Corporation and Milan Davich
Case 12-CA-12708
April 20, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On October 18, 1988, Administrative Law Judge
Benjamin Schlesinger issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Martin
Marietta Corporation, Orlando, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
i 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 judges 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
2 Member Johansen who did not participate in Meyers agrees that at
the least the Meyers definition of concerted activity is satisfied here as
explained by the administrative law Judge See Meyers Industries 281
NLRB 882 (1986) (Meyers II) affd sub nom Pell v NLRB 835 F 2d
1481 (D C Cir 1987)
Margaret J Diaz Esq, for the General Counsel
W Bruce Swain Esq and Matthew Coyle Esq, of Bethes
da, Maryland, for the Respondent
Milan Davich Jr of Orlando, Florida, for the Charging
Party
DECISION
BENJAMIN SCHLESINGER, Administrative Law Judge
About 6 50 a in on Friday September 18, 1987,' Charg
ing Party Milan Davich Jr posted the following notice
in the two breakrooms on the second floor (the balcony)
of the General Services Building Annex (the fab shop) of
the Sand Lake Road facility of his employer Respondent
Martin Marietta Corporation
i All dates refer to 1987 unless otherwise stated
IF YOU DON T LIKE BEING POISONED
BE AT THE LION S DEN FOR CHANNEL 9 at
3 45 TODAY
He was suspended that morning and discharged on
Monday, September 21 The complaint in this proceed
ing dated January 14 1988 alleges that Davich was en
gaged in concerted and protected activities and that Re
spondent violated Section 8(a)(1) of the National Labor
Relations Act, 29 U S C § 151 et seq, by suspending
and discharging him 2 Respondent denies that it violated
the Act in any manner
Jurisdiction is conceded Respondent is a corporation
with an office and place of business in Orlando, Florida,
where it engages in among other things the design and
fabrication of missiles In its operations, it annually sells
and ships from that facility products, goods and maten
als valued in excess of $50,000 directly to points outside
Florida and purchases and receives such products valued
in excess of $50,000 directly from points outside Florida
I conclude, as Respondent admits, that it is an employer
within the meaning of Section 2(2), (6) and (7) of the
Act
Davich posted his notice as a result of the outbreak of
what Respondent refers to as the mysterious illness
On Friday morning, July 24, employees on the balcony,
particularly in an area known as TADS, began to report
to Respondent's medical office and, as the morning pro
gressed more and more reported, variously complaining
of headaches, stinging red and sore eyes, sore throats,
dizziness , nausea and hyperventilation As the numbers
grew, and as the situation escalated, Respondent recog
nized that it could not handle the crisis alone, with its
staff of one doctor and four nurses, so a call was placed
to the Orange County Fire and Rescue Facility, which
responded with many ambulances and sufficient people
with equipment that would allow them to enter an area
that might be hazardous The entire building was evacu
ated, not only the balcony, with its 350 employees, but
also the first floor, where another 350 employees
worked About 11-12 employees who were showing
very real physical symptoms were taken to the emergen
cy room of a local hospital The other employees whose
complaints were less severe were taken to a cafeteria
where they were asked whether they desired to go to a
hospital About 42 or 45 employees elected to go, and
they were taken by ambulance All were examined and
released
Respondent contacted the Occupational Safety and
Health Administration (OSHA) office in Tampa in
formed it of the situation, and that day and over the
weekend tried to determine what had happened by con
ducting various tests of air samples and examining van
ous products Respondent's industrial hygienist and
safety and medical staff found no conclusive cause and,
on Monday the employees returned to work and work
continued for a month without incident
2 The additional relevant docket entries are Davich filed his unfair
labor practice charge on September 29 and amended it on October 21
1987 and the hearing was held in Orlando Florida on March 16-18
1988
293 NLRB No 89
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However, precisely 1 month later on Monday August
24, the July incident repeated itself, with large numbers
of employees from the balcony and also some from
downstairs reporting to the medical office and complain
ing of the same symptoms Eleven employees were trans
ported to emergency rooms, were examined, and were
released The building was not evacuated and employees
continued to work that day and Tuesday, during which
there was no outbreak of complaints similar to the day
before But Respondent was wary and, either that
Monday or Tuesday it hired four more doctors and five
nurses and opened two more medical facilities as a pre
caution It called OSHA and met with Art McLaughlin
from the Tampa office either August 25 or 26 and he
conducted some preliminary testing, and Respondent also
began to contact other outside help
In the meantime, the incident reoccurred on Wednes
day, August 26, when 19 employees were sent to the
hospital, where all were examined and released At
midday, the building was shut down and the employees
were sent home Again, on Thursday, August 27, the
employees complained of the same symptoms, and by
midmorning 29 employees had been sent to the hospital
and a decision had been made to shut down the building,
to send all employees home and not to reopen until at
least the following Monday Of the 29 employees, 2 were
kept in the hospital for overnight observation and were
released the following day The others were released on
Thursday Almost all those who had suffered some of
the symptoms had no symptoms by the time that they
were examined at the emergency rooms
During that week, McLaughlin called in Bill Demery,
the chief industrial hygienist from the Tampa OSHA
office, and he in turn contacted other OSHA officials for
help, as a result of which a special OSHA blue ribbon
task force was called in from Salt Lake City, all of
whom were specialists in industrial hygiene In addition,
medical experts were retained by Respondent and
OSHA a specialist in occupational medicine a toxicolo
gist, a bacteriologist, and two epidemiologists Samples
were taken of the air residues, water and food, and
spores and bacteria, tests were conducted of radioactiv
ity, vibrations and ultrasonic emmissions and blood sam
pies were taken from some of the employees
In order to ease the employees fears, Respondent
scheduled meetings on August 27 to explain to them
what was happening, what Respondent was doing and
what some of the test results were 3 It met with the bar
gaining and safety committees of its collective bargaining
representative, the United Automobile Workers (the
Union) Weekly bulletins were printed and distributed to
all employees Finally when all the tests had been per
formed and all the data analyzed, four 2 hour meetings
with the employees, about 140 attending each one, were
held on September 17 at which a panel of the experts
made presentations and then entertained questions from
the employees In general , the report was inconclusive
It was too late to determine the cause of the July 24 inci
8 Seven meetings were scheduled that day for about 40 employees
each Because of the outbreak of the illness that day and the closing of
the building only three meetings were held
dent, which was probably a reaction to some chemical
As to the incidents that occurred from August 24-27 the
tests showed nothing abnormal One speaker said that all
levels of chemical and toxicity were well within OSHA s
guidelines and well within the stricter guidelines that Re
spondent used The illness remained mysterious and
the August events might even be blamed on the employ
ees emotional reactions, a mass hysteria, rather than
some physical cause
The reaction of most employees was placid They
were apparently convinced that there was little to worry
about and that Respondent had done its utmost to ascer
tarn the cause of the illness Davich was an exception As
early as the meeting he attended on August 27 he was
very vocal, accusing Respondent of not telling the em
ployees the truth and not telling them what were the real
chemicals that were used on the balcony Respondent's
representative replied that it had done so and noted that
there was an article in the newspaper the day before that
listed the chemicals Davich insisted that there were
more chemicals being applied on the balcony, and that
Respondent was either not telling the truth or was en
gaged in a coverup
At the meeting on September 17, Davich asked
Demery when the experts had become aware that pests
cides had been sprayed on the balcony to control an in
festation of southern mites (This became the key issue to
those who did not agree with the experts There had
been a spraying and later the sealing of a stairwell near
the TADS group to prevent the infestation) Demery re
plied that he had been advised the first day that he
walked into the facility (about 10 days after the first
August incident) that he had reviewed all the materials
concerning the use of the pesticides and that it was the
panel s conclusion that pesticides were in no way a
factor for the medical incidents that had occurred Dr
Stanley Haimes an OSHA consultant in occupational
medicine from the University of Southern Florida ampli
feed that the symptoms that he had observed in the em
ployees and in their medical evaluations were exactly op
posite to the kinds of symptoms that could be expected
from the exposure to the insecticides that Respondent
and its spraying contractor had reported had been used
Davich said that neither Respondent nor its contractor
was telling the truth and that Respondent was engaged
in a coverup 4
Despite Davich s adverse criticism I do not think that
there can be any serious contention that Respondent was
not trying in good faith to ascertain what had happened
However several conclusions can be drawn from the
meeting First none of the experts had a definitive
answer to the cause of the illness and at best, all they
were able to do was to give some guesses about what
caused the illness and what did not The following state
ments are illustrative `[W]e are very puzzled We
* Davich s claim of lying and a coverup was based in part on his alle
gations that Respondent pressure-cleaned the entire building prior to
OSHA s inspection that when the illness first occurred Respondents
representatives were looking for a gas leak when there were no gas pipes
on the floor and that on the first outbreak of the illness Respondent
failed to conduct chemical blood tests of those who became ill
MARTIN MARIETTA CORP
really cant sink our teeth into anything specific , I
cannot say what exactly it is that happened [W]e
haven't found anything yet that you need to hear, we
don t really expect to, but we are certainly looking, and
will continue to look, and will for as long as it takes to
reach a conclusion , and I am not sure that we will
ever be able to find out exactly what happened then in
July and August 5
Second, there is no question that Davich had much to
say at the meeting, some of it caustic But Davich was
not alone in his comments My overriding impression is
that some employees were concerned, very concerned,
about their hair falling out, about urinary infections,
about long term effects of whatever happened, and about
why Respondent had removed all pregnant women from
the balcony Some female employees joined Davich in
complaining that they had not been advised by Respond
ent until recently of the use of pesticides, that they were
told that no sprays could be used on the balcony because
of the harm that could be done to the hardware that
they were using and constructing, and that Respondent
had attempted to cover up its use of the pesticides by
placing daisy stick ups on the walls to hide the smell
Other employees joined Davich in belittling the sugges
tion that the illness was caused by a curious virus,
which, if the suggestion were true, according to Davich
affected only people who lived in Tampa and who
worked on the balcony Some expressed their approval
of his pointed criticism of Respondents experts, who
argued that the pesticide could not have been the cause
of what they had suffered, while Davich argued that the
employees on the balcony were the only ones who
became sick and their work area was the only one that
had been sprayed
With the conclusion of that meeting and the other
meetings of that day, Davich thought that Respondent
assumed that the fears of its employees would be quieted
and that, hopefully, there would be no further incidents
and no further need to discuss the mysterious illness
again The case had been closed, and the illness would
be merely a bad memory Respondent would announce
to the media that it had done its best had fulfilled its ob
ligations to its employees and had ensured that its place
of business presented a healthy work environment for its
employees
Davich, however was not so easily pacified He decid
ed to keep the case open by making his own views
known After the meeting he asked coworker Bonnie
Van Zant one of the few who agreed with his views
what she thought of his calling Channel 9 for an inter
view She wished him good luck, noting that she had
called the television station the night before and no one
had returned her call Davich did so and was advised
that Channel 9 would air his response but time was of
the essence At about 6 40 the following morning, he dis
cussed with Van Zant what he should do and they con
curred that the workers who were still concerned about
5 In a report issued long after Davich s discharge Dr Haimes wrote
It is considered likely that the July event was precipitated by chemical
exposure of unknown etiology and that the absence of appropriate labo
ratory data taken at the time of the July and August events made it im
possible to compare the events
721
the illness should present their own side of the story that
afternoon and that a notice ought to be posted Thus,
there followed the notice, quoted above on the first page
of my decision and Davich's suspension and discharge 6
Respondent contends that there were a number of rea
sons for its discipline of Davich, but I find that there was
little more than one reason David Balk, Respondents di
rector of employee relations and services, stated in his in
vestigatory affidavit given to the Board's Regional Office
that he made the ultimate decision to indefinitely sus
pend and then discharge Davich who
was indefinitely suspended for the posting of notices
in the plant on or about 9/18/87 This conduct
of Davich's was objectionable because the notices
were absolutely false, inflammatory, and damaging
to the Company s reputation in the community
Also, in my opinion, posting of the notices was con
duct by which Davich was carrying out his previ
ous threats to `get the Company
The posting of the notices on or about 9/18/87
was also the triggering event for the discharge of
Davich I also considered the conversations I had
had with Davich in which he threatened to get the
Company and the 2 group meetings I had attended
at which Davich was disruptive in deciding to
discharge him I was also aware in deciding to dis
charge Davich that he had had conversations with
Thomas Mallis which were similar to my conversa
tions with Davich in which Davich had also threat
ened to get the Company I concluded that Da
vich's disruptive conduct at the meetings and post
ing of the notices were his way of carrying out his
vendetta against the Company
Mallis, Respondents manager of employee relations,
stated in his affidavit that it was on his recommendations
that Balk s decisions were made Mallis was not present
at Respondents facility on September 18 but was advised
by John Gill Respondents chief of personnel manage
ment that there was a disruption in the balcony and that
employees were upset Gill said that there was a post
ing put up on a number of bulletin boards " he described
the notice and he blamed Davich, although Gill admit
ted that his information was second hand Mallis instruct
ed Gill to confront Davich about whether he wrote and
posted the notice and to call Mallis back Gill followed
those instructions and confirmed to Mallis that Davich
had written these notices and posted these notices in
several areas of the plant
Before Gill called back Balk and Mallis `had decided
that if Davich was responsible he should be indefi
nitely suspended Mallis explained
s Although Davich was discharged on Monday September 21 3 days
after his suspension Respondent relied on no fact that occurred after his
suspension to justify its discipline of him Thus Davich s television inter
view had no bearing on his discharge-Davich merely said that he
thought that the illness was caused by the insecticide-and from Friday
to Monday Respondents investigation merely reaffirmed the information
Balk had at the time he ordered Davich s discharge
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The problem as I saw it at that point in time when
we told Gill to suspend Davich was the content of
Davich's notices-he made a controversial and
damaging statement in the notices at a time when
employees' sensitivity was high due to the prior al
leged medical problems I felt that Davich was car
rying out his earlier threats to damage the Company
in any way he could
After Davich was suspended David Balk and I
made the decision to discharge him after reviewing
the entire sequence of his statements and behavior,
Balk and I concluded that it was not in the best in
terest of the Company to continue employing an
employee who had extremely bad feelings toward
the Company, who had threatened the Company,
and who was beginning to carry out some of his
threats In addition to the incident of 9/18/87 Balk
and I reviewed Milan s May 29 conversation with
me a similar conversation Balk had with
Davich which Balk told me about, and Davich s
conduct at a couple of group meetings where
Davich was disruptive that at one meeting
Davich was continually disruptive, making accusa
tions that the Company was not telling the truth
[and] a second meeting Davich got
up, raised his fist and said that the Company was
lying to us and words to the effect that the Compa
ny was trying to kill or poison employees
These two affidavits, both dated October 23, are sig
nificant for the absence of any reference to the fact that
Davich posted the notices without Respondents permis
sion , in locations that were not allowed by Respondent,
and in places in open view of the production employees,
three objections relied on extensively by Respondent at
the hearing and in its beef The affidavits were taken
from Balk and Mallis in the presence of Respondent's
counsel W Bruce Swain, and both Balk and Mallis were
asked to state their reasons they had disciplined or rec
ommended disciplining Davich and omitted the reasons
now relied on for their actions 7 In fact, Swain submitted
a position statement dated October 28, stating the same
reason
Balk instructed that Davich be suspended because
his conduct was objectionable due to the false and
inflamatory [sic] nature of the postings and potential
damage [to] the Company s reputation in the com
munity
It is true that on the following day Swain filed a sup
plemental statement of position in which he argued that
Davich posted his notices in the wrong location, to wit
On September 18, 1987, Davich posted his notice
The area in which he posted the notice was the
break area The room has large plexiglass windows,
to allow persons to see into the factory and vice
versa Within the room there is a Company Bulletin
Mallis excused his omission of certain reasons for his recommenda
tion to Balk on the sole basis that he did not give the representative of
the Regional Office all the specifics but he was asked for all his reasons
Board, a Union Bulletin Board and a noncontrolled
bulletin board Davich posted his notice on the
plexiglass windows In so doing, Davich ignored
the uncontrolled bulletin board He taped the no
tices to the inside of the breakroom windows, in
direct violation of written instructions he had re
ceived on May 6, 1987 i
i there are non-controlled bulletin boards in the plant
where personal notices not requiring approval of the Company
may be posted Davich was thus entitled to place notices on
the uncontrolled bulletin board provided they were otherwise ac
ceptable as to content He was not permitted to post on the plexig
lass windows of the breakroom- nor was any other employee
The fundamental difficulty with this position statement
is that the breakrooms in question, contrary to Swain s
representations, contained no bulletin boards at all Thus,
although he urged in October that Davich s error was in
not placing his poster on the bulletin board which was
(at least by implication) available, Respondent had to
shift its position by the time of the hearing to contend
that Davich was disciplined because, to be consistent, no
posting in the two breakrooms was permitted There is
no mention by Swain, other than in passing, that Re
spondent did not give its permission to the posting of the
notice, and there is nothing there about the contents
being posted on the windows, causing a commotion be
cause of the manner in which they were posted Instead,
Swain added another reason for Davich' s discipline, a
reason that was not relied on by any of Respondent s
witnesses at the hearing, probably because it was inaccu
rate-that Davich posted his notices during working
hours to wit Thus, Davich left his job in order to post
the notices in a prohibited area during working hours
Such conduct is impermissible No one supported this
contention The contention is simply not true Rather, it
was made by an attorney to bolster Respondents defense
with reasons that he thought might be persuasive in con
vincing the Regional Office to dismiss the unfair labor
practice charge The placement of Davich s notice might
have been a good reason had the interested parties
thought of it in September, but I find that neither Balk
nor Mallis was motivated by it 8
Even if I were not persuaded that no one relied on the
improper location of the notices the evidence shows that
no one had ever been discharged for the improper place
ment of any notice Rather, supervisors of Respondent
testified that when they saw an illegal or unauthorized
posting they removed the notice but imposed no disci
pline Furthermore, Donald Schaeffer Davich s supervi
sor, testified that on September 18, he was in the smok
ing breakroom, saw the notice, and removed it because
8 Mallis for example was told that the notices were posted in several
areas of the plant primarily in the breakrooms and he testified that he
might have been told that they were posted on bulletin boards When he
recommended to Balk that Davich should be suspended Mallis did not
know whether there were bulletin boards in the breakrooms on the bal
cony Although he contended that the location was a factor in his deci
sion because the notices were in a work area and would be disruptive to
Respondents operations a contention that I do not believe he conceded
that his primary concern was the contents of the notice and whether it
was posted on the glass was more of a minor point
MARTIN MARIETTA CORP 723
of what it stated Schaeffer did not testify that the notice
should not have been posted where it was, nor did he
ever deny the testimony of Davich and other employees
that personal notices had been posted in the breakrooms
by other employees, on the walls and on the windows,
and left there some for considerable lengths of time
Respondent also relies on the fact that the posting
caused disruption, and I find that it probably did, al
though not for the reasons suggested by Respondent
The notices were taped to the windows of the break
rooms, but their contents faced into the breakrooms, and
not out onto the production floor In other words, Balk
inflated the disruption that Davich s notices may have
caused because their contents could not be read by some
one sitting at a work station Furthermore, Schaeffer tes
tified that he removed the notice from the smoking
breakroom by 7 a m, which was the employees starting
time, so that it seems utterly illogical to contend, as Re
spondent does, that the contents of the notice, as posted
on the windows, caused any interruption of work Un
doubtedly, what caused a disruption was what Davich
wrote on the notice, which very few employees actually
saw but which was talked about, regarding not only Da
vich's nerve in posting such a notice, but also manage
ment 's removal of the notice and what was going to
happen to Davich In addition, Davich's conduct during
the hours that preceded his suspension probably did
nothing but exacerbate some employees' discontent He
sat at his desk, shouting to one and all that the employ
ees were being poisoned and that they were too stupid to
understand that To the extent that his coworkers valued
Davich's opinion (and there is a legitimate question
whether he was really taken seriously by the vast majori
ty) some employees may have been upset, not only be
cause they disagreed with Davich s assessment but also
because Davich was discrediting their intelligence On
the other hand, since the mysterious illness first ap
peared, employees had consistently talked about the issue
and disrupted the workplace, and they had not been dis
ciplined
Furthermore although at the hearing much was made
of the disruption caused by Davich, I am persuaded that
very little was made of it on the day that Balk made his
decision to suspend Davich Balk never talked to Schaef
fer Although Schaeffer testified that the workplace was
disrupted that morning and some employees confirmed
that fact-those employees however, appeared to dislike
Davich-Schaeffer never testified that he told any of his
supervisors about the alleged disruption, and no one
seems to have known anything about the disruption
other than Schaeffer and the employees 9 In addition,
9 Although I do not completely discredit the testimony about Davich s
disruptive behavior I merely find that his comments and disruption as
distasteful as they might have been to some did not prompt Respondent
to suspend and then discharge Davich Furthermore to the extent that
Mallis testified that Davich was being disruptive I do not credit him be
cause he said that Davich was walking about the floor and disrupting em
ployees No one corroborated that Davich left his work station and I
find that Davich suspecting that discipline was imminent was very care
ful not to
Schaeffer seems to have been distressed very little by
Davich s behavior and did little to stop it In fact it ap
pears that Davich continued to do his work, and the per
sons whose work was being interrupted (if there were
any, because there was no showing by Respondent that
it lost any production) were those employees who talked
with one another or who wandered over to Davich s
work station to engage him in conversation If persons
were to be disciplined that morning, those employees
should have been, yet Schaeffer did not 10 And if Da
vich's conduct at his desk were really troublesome and
disruptive, surely Schaeffer would have quieted down,
yet Schaeffer did not i i
The next reason posited for the discipline of Davich is
a type of straw that broke the camel s back defense,
that is, that although he was a good worker, he was a
rather impossible person, not particularly liked by
anyone because of his outspokenness Among the facts
relied on by Respondent are that, when his suspension
was announced to his coworkers, they cheered, and
when he made certain of his statements at Respondent's
meetings, he was met with derision, boos, and appeals to
shut up His troubles apparently started when, so
Davich thought, he was overlooked for a pay raise and
job transfer He filed a grievance and, although others
received satisfaction on their complaints, Davich did not
That led to appeals by letter to Respondents president,
chats with and complaints to Balk, an attempt to decerti
fy the Union which represented all Respondent's em
ployees at the facility, the posting of antiunion literature,
for which he was criticized or reprimanded by Mallis,
the filing of an unfair labor practice charge by Davich
against Respondent as a result of Mallis ' alleged limita
tion of Davich s right to distribute and post his literature,
and the informal settlement of that proceeding, Davich s
attempt to file complaints with the United States Depart
ment of Labor and then the Federal Bureau of Investiga
tion about Respondent's payment of wages to union
stewards for the time they spent handling grievances,
and perhaps of utmost importance because of Davich s
reaction to his treatment and his feeling of being not
only overlooked and bypassed but also harassed by Re
spondent and his threats to "get the Company and to
burn the Company' and 'to damage the Company in
any way that he could 12
10 Schaeffer s testimony that he told employees to return to their
worktables and stop talking was denied by some employee witnesses
called to testify by Respondent I credit them
i i Employee Brenda Sowers testified that she walked over to Schaef
fer at about 8 a m to complain about Davich and to ask Schaeffer what
he was going to do about Davich s behavior Schaeffer said that the
matter would be attended to but he was awaiting instructions from his
superior and he never attempted to correct Davich s behavior In addi
tion to the extent that Davich was engaging in rather loud diatribes
against Respondent this was not unusual for him Because of his prob
lems with Respondent and the Union about obtaining a promotion
Davich according to Sowers had engaged in similar conduct since
August 1986 without warning or discipline
12 To the extent that Davich denied these threats I discredit him The
threats together with his desire to take his case (including the mysten
ous illness ) to 60 Minutes and Geraldo Rivera are consistent with his
psyche
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The difficulty with Respondents position is that many
of these incidents happened long before September 18
and, although one might be sympathetic to the plight of
Balk and his staff in dealing with Davich s behavior, the
issue in this proceeding is what motivated Respondent to
do what it did on September 18 and 21 Quite simply,
would Balk have terminated Davich if he had not posted
his notice on September 18' I am persuaded that Balk
would not His investigatory affidavit admits as much by
stating that Davich s notices were absolutely false, in
flammatory, and damaging to the Company s reputation
in the community [and that] posting of the notices
was conduct by which Davich was carrying out his
prior threats to get the Company 13 Mallis, who was
the individual who recommended Davich s suspension
and discharge to Balk, confirmed that the problem
was the content of Davich s notices-he made a contro
versial and damaging statement in the notices at a time
when employees sensitivity was high due to the prior al
leged medical problems, and he too felt that Davich
was carrying out his earlier threats to get the Compa
ny ' If his earlier threats 14 constituted a part of Re
spondent s motivation, the threats attained significance
only because he posted the notices Until that event hap
pened, Davich had made only threats for which he was
not disciplined Accordingly, without the posting, I find
that nothing would have happened to him 15 For this
reason, I find that there is no mixed motive for Davich s
discipline and reject Respondents defense under Wright
Line 251 NLRB 1083 (1980), enfd as modified 662 F 2d
899 (1st Cir 1981), cert denied 455 US 989 (1982), ap
proved in NLRB v Transportation Management Corp,
462 US 393 (1983)
The remaining question is whether Davich s posting
constituted concerted and protected activity within the
meaning of Section 7 of the Act as the complaint alleges
Whatever else may be said of the wording of Davich s
notice I find implicit in it his request of and invitation to
other employees to join him at the bar to protest before
a television camera that they did not savor being poi
soned and wanted to find out what was making them ill
If there was any question that Meyers Industries 268
NLRB 493 (1984) (Meyers 1) remanded sub nom Prill v
NLRB 755 F 2d 941 (D C Cir 1985) cert denied 474
U S 948 971 (1985) did not include in its definition of
18 Balk also stated that he also considered his earlier conversation with
Davich in which he had made that threat and the two group meetings at
which Davich was disruptive and that his conduct at those meetings
was also his way of carrying out his personal vendetta against the Com
pany
14 Respondent apparently thought little of Davich s earlier behavior
no written warnings were issued and Davich s personnel file contained
no record of any earlier discipline
16 I am very aware that Respondents termination letter recites that
Davich s discharge was for continued inappropriate behavior and derog
atory allegations which have been disruptive to the workplace and poten
dally damagaing to the Company s image I attach no significance to it
for two principal reasons First it was signed by John Fleischman of Re
spondent s employee relations department and he did not testify so I do
not know what he intended to mean Second I find the letter ambiguous
and although arguably supportive of Respondents position that more
than just the events of September 18 were involved equally supportive
that Davich s conduct in opposing Respondents position regarding the
mysterious illness caused him to lose his job
concerted activities an individuals efforts to induce
group action the Board clarified its standard on remand
in Meyers Industries, 281 NLRB 882 (1986) (Meyers II)
enfd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir
1987), in which it stated at 887
[W]e intend that Meyers I be read as fully embrac
ing the view of concertedness exemplified by the
Mushroom Transportation [330 F 2d 683 (3d Cir
1964)] line of cases We reiterate, our definition of
concerted activity in Meyers I encompasses those
circumstances where individual employees seek to
initiate or to induce or to prepare for group action,
as well as individual employees bringing truly
group complaints to the attention of management
In Meyers I we noted with approval Root Carlin
Inc, 92 NLRB 1313, 1314 (1951) a decision ante
dating Meyers I by 33 years in which the Board
recognized that
Manifestly, the guarantees of Section 7 of the Act
extend to concerted activity which in its incep
tion involves only a speaker and a listener, for
such activity is an indispensable preliminary step
to employee self organization
More recently, in Vaught Corp, 273 NLRB 1290,
1294 (1984), enfd 788 F 2d 1378 (8th Cir 1986) the
Board noted with approval the Third Circuits com
ments in Mushroom Transportation, supra, that
It is not questioned that a conversation may
constitute a concerted activity although it in
volves only a speaker and a listener, but to qual
ify as such it must appear at the very least it was
engaged in with the object of initiating or induc
ing or preparing for group action or that it had
some relation to group action in the interest of
the employees
Davich s notice clearly requested his fellow employees
to join him at the bar to meet with a television reporter
Indeed the scheduling of an appointment with Channel 9
implicitly approved by Van Zant after the September 17
meeting and Davich asked Van Zant the next morring
what she thought of his posting a notice to encourage
the employees to join him in appearing before Channel 9
Thus both employees concertedly agreed on a course of
action to make their own thoughts known to the public
and to elicit support from their fellow employees
I also find that the notice was protected There can be
no question that the safety of the workplace was a para
mount concern of the employees from July 24 and
became exacerbated by the events of August 24 and 26
Clearly, it was a concern of Respondent which must be
credited for its efforts to determine the cause of the mys
terious illness Although Respondent may have been mo
tivated by a desire to protect itself from the legal conse
quences of potential liability to its employees, I have no
doubt that it also had concern for the well being of its
employees and that it proceeded in good faith to attempt
MARTIN MARIETTA CORP 725
to find the cause of the incidents and to take all measures
to prevent their reoccurrence
Respondent recognized, too, that the employees were
concerned, and the record is replete with admissions of
Respondents knowledge that the employees were scared
and needed to be reassured about their safety That was
the reason Respondent kept its employees advised pen
odically by distribution of leaflets informing the employ
ees of what it was doing to ensure their safety The em
ployees were tested and retested, their workplace was
tested and retested Finally, Respondent held its Septem
ber 17 meetings with most of its experts in attendance
to inform the employees of what had been done and,
perhaps of greater importance to assuage their fears
What obviously troubled Respondent about Davich was,
first, that he was not convinced by Respondents panel of
experts and second, that he intended to gather the sup
port of his coworkers to protest what he thought was a
whitewash
The law is now well established that the expression of
concerns about safety and well being of the employees
on the job is conduct encompassed within the meaning
of mutual aid or protection as provided by Section 7
of the Act NLRB v Washington Aluminum Co, 370 U S
9 (1962), Daniel Construction Co, 277 NLRB 795 (1985)
In addition, Davich s mere attempt to involve the media
to discuss the cause of the illness does not cause his
notice to lose the protection it would otherwise clearly
have Eastex Inc v NLRB, 437 U S 556 565-567
(1987), Emarco Inc, 284 NLRB 832 (1987)
Respondent contends, however, that Davich's notice
was so outrageous and defamatory that he should lose
his protection under Section 7, citing Dreis & Krump
Mfg, 221 NLRB 309, 315 (1975), enfd 544 F 2d 320 (7th
Cir 1976), that offensive, vulgar, defamatory or oppro
brious remarks uttered during the course of protected ac
tivities will not remove activities from the Act s protec
tion unless they are so flagrant, violent, or extreme as to
render the individual unfit for further service " In Trover
Clinic 280 NLRB 6 at fn 6 (1986), the Board listed
more specifically some of the limited exceptions where
statements would lose their protection
literature containing attacks on an employer's prod
ucts or services, NLRB v Electrical Workers IBEW
Local 1229 346 U S 464 (1953), material so disrup
tive as to threaten plant discipine, Southwestern Bell
Telephone Co 200 NLRB 667 (1972), and malicious
falsehoods National Steel Corp, 236 NLRB 1033
(1978)
substance (an insecticide), which he believed caused the
employees to become ill That comports with the stand
and dictionary meaning of 'poison to wit
n 1 Any substance that causes injury illness or
death especially by chemical means 2 Anything
that is destructive or fatal -tr v poisoned
1 To give poison to kill or harm with poison
16
Furthermore, Davich s view that there was some
chemical cause for the illness had been confirmed or, at
least , had not been wholly dismissed by Respondent's ex
perts at the September 17 meeting Indeed, Demery indi
cated that the investigation into the use of a pesticide
had not been completed, that the spraying contractor
would be contacted, and that further wipe samples
would be taken He added We may never discover
whether pesticide was involved in the incident' In light
of this statement and the fact that the cause of the myste
rious illness was clearly a matter of open dispute, I find
that Respondent has not satisfied its burden of showing
that Davich s poster was knowingly false Radisson
Muehlebach Hotel, 273 NLRB 1464 (1985)
Second, I have grave doubts that Davich was driven
by malice to post the notice, because malice implies an
intent without just cause or reason, and there was reason
for Davich to fear, as other employees feared, 17 that he
and his coworkers were being affected by some chemical
substance, probably an insecticide It may be that Da
vich's dislike of Respondent gave him the impetus and
desire to attempt to embarrass Respondent, and it is un
doubtedly true that the illness gave Davich the means to
attempt 'to get Respondent However Davich neither
caused the mysterious illness nor imagined it Whatever
it was, it had some very real ramifications namely, dis
abling a substantial number of employees Section 7 pro
tects the efforts of Respondent's employees, including
Davich and Van Zant, to act concertedly to ensure that
there is no reoccurrence Even if Davich had some ulte
rior motive his rights under Section 7 to protect his and
the other employees safety outweigh the possible risk
that his communication was the result of malice This is
particularly appropriate in this instance because Davich s
poster so clearly related to health and safety Even if he
were wrong, employees do not have to be correct in
order that their conduct be protected Bob Henry Dodge
203 NLRB 78 (1973) Furthermore the posting of an
otherwise protected notice does not lose its protection
merely because Respondent finds it distasteful Southwest
ern Bell Telephone Co 276 NLRB 1053 (1985) 18
Respondent's remaining defense essentially relies on
the latter two categories I conclude however, that the
notice was not, of itself so disruptive as to threaten plant
discipline Whatever minimal disruption there was, as I
have found above was caused more by the employees
chapter about what Respondent might do to him, rather
than what Davich actually did Furthermore I find that
the notice did not constitute a malicious falsehood First,
I do not find that it was false True, the word poison, '
or at least a derivative of it, was used, but in common
usage, Davich was merely complaining of the use of a
16 American Heritage Dictionary of the English Language (1976)
14 Rose Waters an employee who appeared as a witness for Respond
ent testified that it was the general opinion of the employees at the
September 17 meeting that the spraying of inseticide had something to
do with the illness
to I have fully considered the remainder of Respondents argument set
forth in its brief and find them wholly lacking in merit In particular I
find nothing that required Davich to protest his disagreement about the
cause of the mysterious illness solely through the safety committee au
thorized by the collective bargaining agreement Besides not being re
quired Davich would be leaving his fate in the hands of the Union
Continued
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In sum, I conclude that Davich was engaged in con
certed and protected activity when he posted his notice,
that the contents of the notice did not render him unfit
for future service, and that Respondents discipline of
him violated Section 8(a)(1) of the Act
The activities of Respondent set forth above, occur
ring in connection with Respondent's operations de
scribed above, have a close, intimate, and substantial re
lationship to trade, traffic, and commerce among the sev
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com
merce
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or
dered to cease and desist therefrom and take certain of
firmative action designed to effectuate the policies of the
Act 19 Specifically I shall recommend that Respondent
offer Davich immediate and full reinstatement to his
former position or if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously en
joyed, and make him whole for any loss that he may
have suffered as a result of Respondent's discrimination
against him Backpay shall be computed in the manner
prescribed in F W Woolworth Co, 90 NLRB 289 (1950),
and interest shall be added thereto, to be computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed20
ORDER
The Respondent Martin Marietta Corporation, Orlan
do, Florida its officers, agents successors and assigns
shall
1 Cease and desist from
(a) Suspending discharging, or otherwise disciplining
its employees because they engage in concerted activities
that are protected by Section 7 of the Act
(b) In any like or related manner interfering with, re
straining or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act
which he opposes and wanted to decertify Another claim is that Re
spondent had no knowledge of Davich s concerted activity a contention
belied by the fact that it took possession of Davich s notice and fired him
for posting it
is Counsel for the General Counsel requested in her brief that I order
Respondent to cease and desist from removing or directing the removal
of literature protected by Sec 7 of the Act from areas where employees
customarily post notices or prohibiting employees from posting literature
protected by Sec 7 in areas where they customarily post notices How
ever the complaint does not allege any violations other than the suspen
sion and discharge of Davich and the requested relief is therefore not
warranted In addition the complaint seeks a visitatonal clause which
the Board has now held is not justified in routine unfair labor practice
proceedings Cherokee Marine Terminal 287 NLRB 1080 (1988)
20 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Milan Davich immediate and full reinstate
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej
udice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may suffered
as a result of its discrimination against him in the manner
set forth in the remedy section of this decision
(b) Expunge and remove from its files any references
to the unlawful suspension of Davich on September 18
and his unlawful discharge on September 21, 1987 and
notify Davich in writing that this has been done and that
evidence of his illegal suspension and discharge will not
be used as a basis for future personnel action against him
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its place of business in Orlando, Florida,
copies of the attached notice marked Appendix 21
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
21 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
WE WILL NOT suspend , discharge, or otherwise disci
pline our employees because they engage in concerted
activities that are protected by Section 7 of the Act
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Milan Davich immediate and full rein
statement to his former position or if that position no
longer exists , to a substantially equivalent position with
out prejudice to his seniority or other rights and pnvi
leges, and make him whole for any loss of earnings he
may have suffered as a result of our discrimination
against him , with interest
MARTIN MARIETTA CORP 727
WE WILL remove from our files any reference to the dence of his illegal suspension and discharge will not be
unlawful suspension of Davich on September 18 and his used as a basis for future personnel action against him
unlawful discharge on September 21, 1987, and notify
Davich in writing that this has been done and that evi MARTIN MARIETTA CORPORATION