Multi-Amp Testing Services Corporation

National Labor Relations Board - Board Decisions

Aug 30, 1982

263 N.L.R.B. 800 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Multi-Amp Testing Services Corporation and Ronald
J. Martindale and James R. Bradshaw. Cases
7-CA-17505 and 7-CA-17505(2)
August 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 27, 1981, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions and a brief in
answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Pursuant to the General Counsel's post-hearing motion, the Adminis-
trative Law Judge corrected the record to reflect Martindale's direct tes-
timony to the effect that when Hahn discharged him he said to Martin-
dale: "You two thought you would coerce me into giving you a raise, by
going through the customer." (Emphasis supplied.) The Respondent ex-
cepts to the granting of this motion, asserting that there is no valid basis
for changing the printed record which reads: "You thought you would
.... " To the contrary, the record reveals the following exchange
during cross-examination of Martindale by the Respondent's counsel:
Q. What did he tell you?
A. He told me that-as I remember it, he said, "You two thought
you would coerce me into giving you a raise."
Q. What was "you two?"
A. Referring to Jim Bradshaw and myself.
There is no indication of surprise at this point on counsel's part nor any
suggestion that the statement ascribed to Hahn during Martindale's cross-
examination differed in substance from that set out in direct. According-
ly, we find no merit in the Respondent's exception.
Notwithstanding, the record before us does not prove the General
Counsel's contention that Hahn's reference to "you two" somehow ex-
poses his thinking and, therefore, the Respondent's belief, albeit errone-
ous, that Martindale and Bradshaw engaged in concerted activity and
that they were discharged for that reason. The evidence as a whole
shows that the Respondent decided to discharge Martindale, and did so,
because it believed he had passed company documents to a third party;
and that the decision to discharge Bradshaw was made only after the Re-
spondent gained the impression in the process of discharging Martindale
that Bradshaw had also engaged in separate, similar conduct. In this con-
text, Hahn's passing remark does no more than articulate his strong disap-
proval of the separate courses of action he believed each of the employ-
ees had undertaken in furtherance of their respective pay raise objectives.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Product Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
263 NLRB No. 110
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon
charges filed on March 11, 1980, by Ronald J. Martin-
dale, an individual, and on April 4, 1980, by James R.
Bradshaw, an individual, against Multi-Amp Testing
Services Corporation, herein called Respondent, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 7, issued a com-
plaint dated April 16, 1980, alleging violations by Re-
spondent of Section 8(a)(1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent, by its answer, denies the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Detroit, Michigan, on October 8 and 9, 1980, at which
the General Counsel and Respondent were represented
by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to in-
troduce evidence. Thereafter, the parties filed briefs
which have been duly considered.
Upon the entire record in this case,' and from my ob-
servations of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation, maintains its
principal office and place of business in Dallas, Texas. It
is engaged, at various installations within the United
States, including Detroit Edison Company's Fermi II
plant in Monroe, Michigan, in the startup testing of nu-
clear power plants. During the year ending December
31, 1979, a representative period, Respondent, in the
course and conduct of its business operations, performed
services valued in excess of $50,000 for the Detroit
Edison Company, at the Fermi II plant, in Monroe,
Michigan. In that same time period, Detroit Edison
Company received, at its Fermi II plant, supplies valued
in excess of $50,000 which were sent directly from points
located outside the State of Michigan. I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
I Respondent's motion to correct the official record is granted. The
General Counsel's motion to correct the record is granted except for the
correction requested at p. 132, 11. 12-13.
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MULTI-AMP TESTING SERVICES CORPORATION
II. THE UNFAIR LABOR PRACTICES 2
A. Background
On March 4, 1980, Respondent discharged its electri-
cal test technicians, Ronald J. Martindale and James R.
Bradshaw. The General Counsel contends, in substance,
that the discharges resulted from Respondent's belief that
those employees had, in tandem, sought the aid and sup-
port of Respondent's customer in their wage dispute
with their Employer, a protected concerted activity.
Thus, the General Counsel urges that the discharges
were violative of Section 8(a)(1) of the Act. Respondent
contends that the activities engaged in by Martindale and
Bradshaw were neither concerted nor protected and that
Respondent, at the time of discharge, fully believed that
the employees had engaged in individual actions in con-
travention of lawful work rules. Also at issue is whether
Respondent violated the Act when, some months prior
to the discharges, it informed employees that they were
not to discuss "internal affairs" with Respondent's cus-
tomers and, when, on March 4, 1980, it enforced said
rule by discharging Martindale and Bradshaw.
B. Facts
Martindale and Bradshaw were hired in January 1979.
Until their discharges, they worked at Detroit Edison
Company's Fermi II location, a nuclear power plant con-
struction site, where Respondent, MATSCO, pursuant to
contract with Detroit Edison, was engaged in the per-
formance of certain technical functions. At this site,
MATSCO employees shared common offices and facili-
ties with the employees of Detroit Edison and those of
Stone and Webster Engineering Company. Contrary to
Respondent's usual practices, it did not, until November
1979 have an onsite supervisor at the Fermi II plant.
Rather, its test technicians were supervised by MATSCO
General Manager L. Curtis Hahn whose office is located
in Dallas, Texas. On a day-to-day basis, MATSCO em-
ployees received work assignments and directions from
supervisors of Detroit Edison and Stone and Webster.
In October 1979, Respondent conducted its annual
companywide employee safety meeting. During the
course of that gathering, General Manager Hahn was ap-
proached by some 80 percent of the MATSCO employ-
ees who asked about anticipated wage increases. Such in-
quiries were made, separately, by Martindale and Brad-
shaw, both of whom were told that the matter would be
addressed at a later date. One month later, Hahn visited
the Fermi II plant for the purpose, inter alia, of inform-
ing employees about their wage increases. When Hahn
met with Martindale, the employee stated that the an-
nounced raise was inadequate. Hahn responded, stating
that, in the absence of evaluations by an onsite supervi-
sor, he, Hahn, was not certain that the raise was a "just"
one. However, Martindale was assured that, in 90 days,
after the then newly appointed onsite supervisor s had
2 The fact findings contained herein are based on a composite of the
documentary and testimonial evidence introduced at the hearing. The
record is generally free of significant evidentiary conflict.
a At or about that time, Respondent appointed one Woodard Kinne-
brew as its supervisor However, Kinnebrew exercised administrative re-
sponsibilitiec only, while MATSCO employees continued to receive work
prepared and submitted three monthly evaluations of the
employee, his rate of pay would be further reviewed.
Hahn had a similar conversation with Bradshaw.
Hahn again visited the Fermi II site, in December
1979, and conducted a meeting, at a local motel of the
MATSCO employees working at that location. The
meeting was also attended by MATSCO President Redl-
hammer. Respondent's officials informed the gathered
employees, including Martindale and Bradshaw, that ir-
reparable damage to Respondent had resulted from em-
ployee communications to customers and competitors
concerning the internal workings of MATSCO. The em-
ployees were instructed, under penalty of discharge, that
they were not to have discussions about Respondent's
"internal affairs" with representatives of the Detroit
Edison Company or other customers. The record evi-
dence does not reveal how, if at all, "internal affairs"
was defined at the meeting. However, it is undisputed
that neither Hahn nor Redlhammer used the terms
"wages" or "working conditions" in announcing the
rule.
In late January 1980, Rodney Nichols was appointed
as the new supervisor at the Fermi II site. Shortly there-
after, Nichols completed a monthly evaluation of both
Martindale and Bradshaw, the third such evaluation for
each employee following the November 1979 wage in-
crease. Nichols forwarded the ratings to the Dallas
office, along with a one-page memorandum recommend-
ing additional wage increases for the two employees. In
mid-February, the Nichols memorandum was returned to
him and it contained an additional paragraph, at the
bottom of the page, written by Hahn, denying the re-
quested increases. Nichols called Martindale and Brad-
shaw to the supervisor's desk, showed them the memo-
randum and response, and discussed the matter with the
employees, both of whom expressed their dissatisfactions.
This conversation occurred within "earshot" of Detroit
Edison and/or Stone and Webster employees and, at its
conclusion, Nichols granted Bradshaw's request to
borrow the memorandum in order to make a copy for
his own files. As Martindale also expressed a desire to
have a copy, Bradshaw made two copies and, then, re-
turned the original to Nichols.
Later that same day, Martindale was approached by
John Icard, an employee of Stone and Webster, who su-
pervised, on a day-to-day basis, the work of Martindale
and Bradshaw. Icard asked Martindale why he looked
depressed and the employee stated, "I didn't get my
raise." Martindale showed the Nichols memorandum and
the Hahn response to Icard who asked the employee if
he intended to seek other employment. Martindale stated,
yes. Icard then had a similar conversation with Brad-
shaw. Immediately thereafter, Icard prepared, at his own
instance, and without the knowledge of either Martindale
or Bradshaw, a memorandum to Detroit Edison supervi-
sors expressing fears that Martindale and Bradshaw
would leave their jobs because they had been denied pay
directions from the supervisors of other companies. Also, at that time,
Respondent named Bradshaw. who had previously served as "liaison" be-
tween MATSCO and Detroit Edison, as assistant supervisor. In January
1980, Bradshawv was relieved of his responsibilities as assistant supervisor
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increases. Attached to the Icard memorandum was the
Nichols memorandum and the Hahn response. Icard
gave copies of those documents to Nichols. After send-
ing his memorandum to Detroit Edison officials, Icard
showed a copy of same to Martindale who stated that
he, Martindale, would take care of his own business. On
the next day, a representative of Detroit Edison Compa-
ny furnished a copy of the Icard memorandum, with at-
tachments, to Hahn.
On Friday, March 1, 1980, Hahn met with Nichols 4
and Respondent's manager of operations and sales, John
Lapacola, to investigate the matter. Hahn asked Nichols
how his memorandum to Nichols, a confidential docu-
ment, had wound up in the hands of Detroit Edison and
Stone and Webster officials. Nichols falsely stated that
he had not given the memorandum to anyone and that
Martindale must have taken it from his (Nichols') desk
and copied it. Nichols further stated that Martindale had
distributed such copies. At that point, according to
Hahn's testimony, he decided to discharge Martindale
for violating Respondent's rule against "taking the inter-
nal workings of our company to others."
Hahn, Lapacola, and Nichols met with Martindale on
Monday, March 4, in a conference room at the Fermi II
site. Hahn asked Martindale if he remembered the De-
cember meeting at which the "internal affairs" rule was
discussed. Martindale said, yes. Hahn stated that he had
evidence that Martindale had broken the rule by solicit-
ing Icard to intervene on the pay matter. Martindale
denied doing so and stated that it was Bradshaw, with
Nichols' permission, who had copied the Nichols memo-
randum and the Hahn response. Martindale stated that
Icard had taken the copy, given to Martindale by Brad-
shaw, which he, Martindale, had placed on his desk.
Hahn told Martindale, "You two thought you would
coerce me into giving you a raise, by going through the
customer." Hahn then left the room to make investiga-
tory telephone calls. He returned some 5 to 15 minutes
later. According to Martindale's testimony, it was at that
point in time that he was told by Hahn that he, Martin-
dale, was discharged. According to the testimony of
Hahn and Lapacola, Hahn so informed Martindale near
the beginning of the meeting and before Martindale had
implicated Bradshaw. In any event, after Martindale had
left the room, following his termination, Hahn told Lapa-
cola that the information gleaned from Martindale, con-
cerning Bradshaw, had been confirmed. At that point,
Bradshaw was summoned to appear in the conference
room. Hahn reminded the employee of the "internal af-
fairs" rule and stated that he had proof that "you went
to the customer about your pay raise. On that basis, I am
going to discharge you from the company." Bradshaw
stated that he had done no such thing but Hahn insisted
that he had proof to the contrary. Hahn told Bradshaw,
"I am discharging you and Ron Martindale both, you
know, for going to the customer, with the documents."
4 The complaint alleges, and the answer admits, that Hahn and Nich-
ols, as well as Redlhammer and Kinnebrew, were, at all times material
herein, supervisors within the meaning of the Act.
C. Conclusions
As the General Counsel concedes, and as the Charging
Parties themselves testified, Martindale and Bradshaw
did not act in concert. Each pursued an individual wage
increase in an individual manner. Neither employee solic-
ited the aid of a third party. Nonetheless, the General
Counsel contends that the discharges were unlawful be-
cause they were based on Respondent's erroneous belief
that Martindale and Bradshaw had sought, concertedly,
the aid and support of Icard in furtherance of their ef-
forts to obtain wage increases.
Under Section 7 of the Act, employees have a protect-
ed right to discuss wage rates as part and parcel of their
concerted activities.5 They may also engage in such dis-
cussions with third parties "in an effort to obtain the
third party's assistance in circumstances where the com-
munication [is] related to a legitimate, ongoing labor dis-
pute between the employees and their employer, and
where the communication [does] not constitute a dispar-
agement or vilification of the employer's product or its
reputation."s Thus, if, as claimed by the General Coun-
sel, Respondent discharged the Charging Parties because
it believed that they had, in concert, sought to utilize
Icard as a pressure tactic in order to secure wage in-
creases for themselves, the discharges were unlawful.?
While Respondent contends that, in any event, when
Martindale and Bradshaw, acting separately, brought the
dispute, and Respondent's internal memorandums con-
cerning same, to Icard, they engaged in activities tending
to undermine Respondent's business, there is an absence
of record evidence demonstrating that this is so. Accord-
inbly, otherwise protected activity would not have lost
its protected status for that reason.
This case is a close one. There are factors present
which might well have led Respondent to believe that
the Charging Parties had, in concert, sought the aid of
Icard in their efforts to obtain wage increases. In that
connection, I note that the Icard memorandum treated
the two employees as a unit. It is also true that Martin-
dale and Bradshaw were discharged, on the same day,
for having engaged in the same supposed misconduct.
On the other hand, Respondent treated the two dis-
charges as separate matters. Thus, Hahn credibly testified
that, on March 4, when he arrived at the Fermi II site,
he had evidence that Martindale, alone, had passed docu-
ments to Icard and, so, at that point in time, he, Hahn,
had decided to terminate the one employee. Respondent
first received information indicating that Bradshaw had
also engaged in that conduct during the course of the
Martindale termination interview, when it was so advised
by Martindale. 8 After brief investigation, Respondent
then determined that it would also discharge Bradshaw.
Hahn testified that, at no point in time, were there facts
I Blue Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976).
5 Allied Aviation Service Company of New Jer;ev, Inc., 248 NLRB 229
(1980).
7 Henning and Cheadle, Inc., 212 NLRB 776 (1974).
8 it is significant that, in the course of the discharge interview, Brad-
shaw's name was introduced into the conversation by Martindale. There
is no evidence showing that, prior to that time, Respondent planned to
take disciplinary action against Bradshaw
802
MULTI-AMP TESTING SERVICES CORPORATION
before him tending to show that the two employees had
acted together in seeking wage increases. While, as
noted, the circumstances are not free from suspicion, the
burden of proof is on the General Counsel to show, by a
preponderance of evidence, that Hahn discharged the
employees due to a mistaken belief that they had acted in
concert. That burden has not been met.
With respect to the rule promulgated in December
1979 against disclosure of "internal affairs" to customers
and competitors, that rule, on its face, is not unlawful.
Nor is there evidence that the rule was unlawfully pro-
mulgated. As applied to the Charging Parties herein, ille-
gality has not been demonstrated because, concededly,
those employees were not engaged in concerted activi-
ties.
In light of the foregoing, I conclude that the institu-
tion of the "internal affairs" rule was not in violation of
the Act. Likewise, Respondent did not violate the Act
when it discharged Martindale and Bradshaw.
CONCLUSIONS OF LAW
i. Respondent, Multi-Amp Testing Services Corpora-
tion, is an employer engaged in commerce, and in oper-
ations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent did not engage in unfair labor practice
conduct as alleged in the complaint.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 9
The complaint is dismissed in its entirety.
g In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
803