Nu Dawn Homes, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1988

289 N.L.R.B. 554 (N.L.R.B. 1988)

554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nu Dawn Homes, Inc. and Susan K. Martin and
Modesta L. Greenland . Cases 19-CA-19053
and 19-CA-19105
June 30, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 4, 1988, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a brief in support,
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
conclusions 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, Nu Dawn
Homes, Inc., Federal Way, Washington, its offi-
cers, agents , successors, and assigns , shall take the
action set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
In affirming the judge 's finding that the Respondent violated Sec
8(a)(1) of the Act by discharging employees Martin and Greenland be-
cause they insisted on being paid overtime in accordance with the wage
and hour laws of the State of Washington , we find it unnecessary to rely
on the small -plant doctrine in determining whether the Respondent was
aware of the concerted nature of their activity There is ample evidence,
as found by the judge, that the Respondent knew that the two were
acting not only for themselves but also on behalf of their coworkers
Further, we correct the judge's analysis insofar as she states that under
Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981),
the General Counsel bears the initial burden of proving that the employ-
ees were engaged in protected concerted activity which was a "donu-
nant" factor prompting the employer 's action The General Counsel bears
the initial burden of proving that the protected concerted activity was a
motivating factor in the employer 's action
Linda Scheldrup, Esq., for the General Counsel.
Chris McCleod, Esq. (Harpold, Fornabai & Fiori), of
Auburn, Washington , for the Respondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. On
charges filed by Susan K. Martin (Martin) and Modesta
L. Greenland (Greenland) on April 10 and 30, 1987, re-
spectively.1 A consolidated complaint issued on May 29
alleging that Respondent Nu Dawn Homes, Inc. violated
Section 8(a)(1) of the National Labor Relations Act (the
Act), by terminating Martin and Greenland and thereaf-
ter refusing to reinstate them because they concertedly
asserted their right to be paid for overtime work. The
Respondent filed a timely answer on June 4, as amended
on June 8 and October 9.
The case came to trial before me in Seattle, Washing-
ton, on October 14 and 15, at which time the parties had
full opportunity to examine and cross-examine witnesses,
to introduce documentary evidence, and to present oral
argument. After considering the witnesses' demeanor, the
parties' posttrial briefs, and the General Counsel's reply
brief,2 and on the entire record, pursuant to Section
10(c) of the Act, I make the following
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
Respondent, a Washington corporation with an office
and place of business in Federal Way, Washington, is en-
gaged in constructing residential homes. During the past
12 months, a representative period, in the course and
conduct of its business, Respondent had gross sales of
goods and services valued in excess of $500,000. Further,
during the 12 months prior to the issuance of the com-
plaint, Respondent purchased and caused to be trans-
ferred and delivered to its facilities within the State of
Washington, goods and materials valued in excess of
$50,000 directly from sources outside of the State or
from suppliers within the State, that in turn obtained
such goods and materials directly from sources outside
of the State. Accordingly, the complaint alleges, Re-
spondent admits, and I find that Nu Dawn Homes is and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Dramatis Personnae
Respondent, a small , closely held corporation, is one
of five allied enterprises wholly owned by John C.
Tynes and Floyd Hoffman, his brother-in-law, who serve
as president and vice president, respectively, of the com-
panies . At the time of the operative events described
below, Della Pulley, Respondent's vice president for
management and finance, was responsible for bookkeep-
ing and office personnel management for all the sister
companies . Three administrative assistants , Susan Martin,
Modesta Greenland, and Kathleen Zulaski-plus a recep-
tionist , Shirley Ebeling, worked under her supervision.
Don Winslow, vice president for acquisitions and mar-
keting, his assistant , Donna Heider, and Respondent's ar-
chitect, Fred Wopfer, all worked in the same somewhat
cramped office space.
Unless otherwise specified all events took place in 1987.
2 Because Respondent 's counsel inadvertently filed his brief late, after
having received opposing counsel 's brief, the General Counsel was au-
thorized to submit a reply
289 NLRB No. 73
NU DAWN HOMES 555
Greenland began working for the Respondent as a re-
ceptionist-secretary on February 26, 1986, at a starting
monthly salary of $800. By end, she was earning $1000
per month. In addition, Company President Tynes
awarded her a $100 bonus in November. A month later,
he congratulated her on receiving high grades in two
computer program courses she had just completed at Re-
spondent's expense.
Respondent's managers evidently were pleased with
Greenland's work and spoke highly of her industry at a
corporate meeting in December 1986. Don Winslow re-
lated that at this meeting Tynes praised her as "the hard-
est working person in the Company .. .." Tynes,
Pulley, and Hoffman then agreed that Greenland should
be promoted to a position as Pulley' s assistant , effective
in January 1987.
Greenland continued as receptionist/secretary while
gradually assuming some of her new duties until her re-
placement , Shirley Ebeling, was hired in mid-January.
Greenland then became responsible for Ebeling's train-
ing.
Martin, who had worked with Pulley at another com-
pany in 1976, was recruited by her and began working
for Respondent in April 1986, performing a variety of
bookkeeping tasks. In addition to a 1-year college ac-
counting course, Martin had more than 20 years' experi-
ence working for various companies using secretarial,
bookkeeping, and computer skills. Consequently, at her
initial interview, Pulley advised her that she might be
overqualified for the position with Respondent. At that
same time , Pulley also mentioned that because another
employee, Linda Vixie, had complained to her about Re-
spondent's overtime policy, she wished to make it clear
that any overtime work would be compensated with
time off but not with extra pay. Martin's starting salary
was $1200 per month. By December 1986, she was earn-
ing $1600 with pay periods falling on the 5th and 20th of
each month. She also received several bonuses, most re-
cently in November 1986. During the last week of Janu-
ary, she received flowers with an appreciative note from
Pulley who thanked her for proposing a new accounting
procedure that, as Pulley put it, "will make us efficient,
accurate, and help us to get out of here at 5."3
In August 1986, after Linda Vixie gave notice of her
intent to resign, Respondent hired Kathleen Zulaski. Wit-
nesses for the General Counsel and the Respondent of-
fered widely divergent views of the quality of Zulaski's
performance during the first 6 months of her employ-
ment. According to Vixie, who trained her initially, and
to Martin, who took over when Vixie left, Zulaski
worked slowly and frequently needed considerable assist-
ance particularly when transferring data from invoices to
the computer. Others, including Tynes, complained
about Zulaski's inept handling of telephone inquiries.
Tynes and Pulley acknowledged at the hearing that
Zulaski was far less experienced than Martin. However,
they both maintained that because her formal training in
3 In its brief, Respondent contends that Martin could not recall the de-
tails of her proposal The record proves otherwise for she clearly ex-
plained that she suggested transferring data to the computer from the ac-
counts payable records rather than from the more cumbersome check
ledger
accounting was superior to that of Martin's or Green-
land's, she had the potential to out-perform the other
women. However, Pulley and Tynes erred as to the
extent of Zulaski's formal training when they testified
that she held two accounting degrees. In fact, she re-
ceived one accounting certificate from a business school
after taking two accounting courses, each lasting ap-
proximately 3 months. She received a second certificate
from the same school after completing an additional
course in management . She also had a one-year college
course in computer science. Prior to her employment
with Respondent she had held two temporary jobs
whose duration was no more than a week or two. By
Zulaski's own account, she was a novice in the business
world and had much to learn. She candidly acknowl-
edged turning frequently to Martin for advice and to
making mistakes entering data into the computer. She re-
vealed that she was reprimanded in January 1987 for not
processing utility bills to Pulley's satisfaction and that
she had made a few errors in writing checks. At the time
of trial, her work was still under review by Pulley.
B. The Employees Challenge Respondent's Overtime
Policy
Greenland and Martin recalled discussing Respond-
ent's overtime policy with Vixie in July 1986. When
Vixie tendered her resignation that same month, she told
Pulley that she thought Respondent's failure to pay over-
time was unlawful and bad for employee morale. Pulley
responded that the Respondent would not alter its policy
and would continue granting compensatory time off
rather than paying for extra hours worked.
While working late one evening in December 1986,
and after having accumulated a considerable amount of
uncompensated overtime hours, Martin remarked to
Pulley that she had heard it was illegal for employees
not to be paid for overtime. Pulley reminded Martin that
she accepted the job with knowledge of Respondent's
overtime policy and that if she was dissatisfied she could
find another position.
Beginning in January 1987, Martin and Greenland
became increasingly assertive in questioning Respond-
ent's overtime practices. As noted previously, Greenland
became Pulley's assistant in January. However, Green-
land apparently misunderstood the terms of her promo-
tion, believing that she would receive a $500 raise as
soon as she assumed her new post. When she failed to
receive the anticipated raise or payment for a modest
amount of overtime worked in 1986 on each of two pay
periods in January and again on the first pay period in
February, she questioned Pulley about the delays on sev-
eral occasions.
When Greenland first raised the matter, Pulley advised
her that the raise would commence at the end of Janu-
ary. It was not until February 5 that Greenland received
a check for $600 reflecting a pay raise of $100 per pay
period. However, this amount was less of a raise than
she believed she had been promised. Therefore, she again
pursued the matter with Pulley, questioning both the
wages she thought were due as well as payment for
overtime. Realizing that there had been a misunderstand-
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, Pulley prepared a memo on February 7 that ex-
plained that Greenland had embarked on a 6-month
training program as her assistant at a salary of $1200 a
month ranging upward to $1500 depending upon the re-
sponsibilities that she might assume . The memo further
noted that Greenland would receive a $100 check
making her pay raise retroactive to January 1 and also
cover the "extra-time" that she previously had worked,
an apparent reference to the overtime . Greenland signed
this memo on February 9 and received the $100 retroac-
tive paycheck on February 11.
Greenland shared her concerns about her pay raise
and the overtime situation with Martin since, as she ex-
plained, she anticipated having to work more overtime as
Pulley 's assistant . When she mentioned a newsletter pub-
lished by the State Department of Industries and Labor,
which contained an article concerning overtime pay, the
women agreed that Greenland would call the agency to
make further inquiry. She did so about February 11 and
then reported to Martin that State law required that an
employer pay time and a half for each hour of overtime
worked unless the employee was granted time off within
the time period in which the overtime was worked. The
next day Martin called the agency herself to confirm
Greenland's understanding.
After both women had ascertained the applicable law
on overtime compensation , they talked with other office
employees about their right to overtime pay. Reception-
ist Ebeling recalled that Martin asked her to keep any in-
coming calls from the Department of Labor and Indus-
tries confidential . Ebeling also confirmed that Greenland
had spoken to her about overtime. However, out of fear
and a desire to avoid office politics , Ebeling indicated
that she did not wish to get involved . Martin also spoke
to Zulaski about the overtime matter and found that she,
too, exhibited some apprehension and said she would
prefer to take compensatory time off . In addition, Martin
and Greenland spoke to Wepfer, Winslow, and Heider
about the overtime matter.
On the evening of February 12, Martin and Greenland
conferred by telephone about how best to present their
findings about overtime pay to Pulley. Martin testified
that on the following day she told Pulley in private that
she wanted to be paid for her overtime at time and a
half, and advised Pulley that she had an obligation to
inform the employees of their legal rights under state
law. According to Martin, Pulley grew very angry and
said she would respond to Martin's request after check-
ing with Respondent's attorney. Martin testified that the
following week Pulley informed her that Respondent's
counsel had said it was the Company's choice either to
pay for overtime or grant time off. She agreed to pay
Martin for her overtime but at a straight time rate and
asked her to sign a statement agreeing that it was a one-
time only payment . Martin refused to sign such a state-
ment and bluntly told Pulley that her information about
the Company's legal obligation was incorrect. Pulley
ended that conversation by saying that she would con-
sult Tynes as to the next step.
Thereafter, on February 23, Pulley received a letter
from Respondent's attorney confirming what Martin and
Greenland already had learned; that is, that an employer
was obliged to provide compensatory time within the
same pay period or else pay time and a half for each
hour of overtime worked . Greenland happened to see
the attorney's letter since at the time she was supervising
Ebeling in distributing the mail. On the day after this
letter arrived, Ebeling told Greenland that Pulley had
been upset on receiving the mail. That same day Pulley
instructed Greenland that she was no longer to review
incoming mail.
About the same date, Pulley informed Martin that she
would receive a check for her overtime at time and a
half. According to Martin, Pulley added that she did not
understand why Martin was being so disloyal; that she
was "stabbing me (Pulley] in the back." Soon thereafter,
Martin was correctly paid for her overtime work.
Without specifically denying the remarks Martin at-
tributed to her, Pulley offered a much different account
of their exchange about overtime pay. She related that in
early February Martin requested time off for 50 hours of
accumulated overtime work. Fearing that extended ab-
sence would create a paperwork backlog , Pulley main-
tained that on her own initiative she sought Vice Presi-
dent Hoffman's approval to pay Martin for her overtime.
Pulley admitted , however , that she did advise Martin
that the payment would be a one-time practice, that
Martin insisted it was the employee's option to take leave
or seek wages for the overtime , and suggested that she
advise the other office employees as to state overtime re-
quirements.
I find Martin 's detailed version of these matters more
reliable than Pulley's vague recollection. Pulley, for ex-
ample, thought that counsel's letter arrived early in Feb-
ruary until she was shown the February 23 date stamped
on the document. In contrast, Martin recalled facts by
tying them to particular events, some of which (such as
their phone call) were corroborated by Greenland.
Moreover, regardless of who initiated the conversation
with regard to overtime pay, Pulley did verify some of
the salient details of Martin's account, including the fact
that it was Martin who insisted that employees had a
right to seek wages for overtime and that other employ-
ees should be notified of their rights.
Pulley testified at the trial that she was not at all dis-
turbed about this overtime controversy; rather, she was
relieved to have the matter resolved. Time may have
mellowed her recollection of this event, however, for
Winslow recalled that her reaction to the overtime pay
problem was an angry one. Thus, he testified that Pulley
told him that she was very upset and frustrated at the sit-
uation that Martin and Greenland had created. Further,
Hoffman asked Winslow in an agitated manner if he had
heard about the overtime problem with "Della's girls"
and asserted that if they were his workers he would
"kick their butts out in the street."4
* I credit Winslow's account for I found him to be a calm, thoughtful
witness who candidly acknowledged having harbored and overcome
bitter feelings when he was terminated. Moreover, Hoffman, who shared
an office with Pulley, was not called as a witness and, thus, did not con-
tradict the statement Winslow attributed to him.
NU DAWN HOMES 557
C. Respondent's Financial Difficulties
For the past several years, since at least 1986, Re-
spondent and its affiliated companies had been operating
in the red, a situation that did not improve during the
first quarter of 1987. Thus, a profit-and-loss statement
covering the Nu Dawn enterprises' fiscal year ending
March 31, 1987, showed an overall deficit of $171,000.
The single greatest cause of this loss, approximately
$67,000, was due to Nu Dawn Realty's failure to sell as
many homes as had been projected, thereby creating
what Respondent claimed was a serious cash flow prob-
lem.
At a management meeting in early January, Tynes,
Hoffman, and Pulley agreed to search for ways to
reduce overhead expenses . About February 18, Hoffman
held a general meeting with employees, including office
and field personnel, at which time he focused on the
Company's financial plight. 5 It is undisputed that at this
mid-February meeting , Hoffman stated that he wanted to
dispel rumors that employees might lose their jobs and
assured them that salaries would be reduced before any
discharges took place. In keeping with this approach, he
announced that he would move into the field as chief job
superintendent while current job superintendents would
shift into construction work.6
Notwithstanding Hoffman's assurances to the contrary,
Pulley testified that after the January management meet-
ing, she decided to reduce the number of officeworkers.
Consequently, she stated that throughout January and
February, she evaluated the performances of her subordi-
nates . By early March, she had selected Greenland and_
Martin for dismissal , allegedly because they were less
competent than Zulaski and Ebeling.
In comparing Martin and Zulaski, Pulley testified that
Zulaski's formal accounting education equipped her to be
a more desirable employee in the long run. Further,
Pulley maintained that Martin made several errors that
revealed her shortcomings as a bookkeeper. First, she
pointed out that during her absence in October 1986
Martin was put in charge of the office and during this
time twice issued a check for $13,000 to the same suppli-
er. Fortunately, the second check was returned un-
cashed . Martin also erred in failing to add a tax onto a
contractor's bill and reversed the debit and credit col-
umns on one occasion. Pulley acknowledged that Martin
responded favorably when these errors were brought to
her atention and no further oversight of her work was
required. Pulley also stated that she was dissatisfied with
Martin's training of Zulaski who performed more effec-
5 Respondent asserted in its brief that this meeting with employees
took place in early January , mistakenly relying on Pulley's testimony.In
fact, the record shows that Pulley alluded to a January corporate meeting
that was attended solely by Hoffman , Tynes, and herself Moreover, one
of Respondent 's own witnesses , Architect Fred Wepfer , generally cor-
roborated Greenland 's and Martin 's recollection as to the date when he
testified that the staff meeting at which Hoffman pledged that no one
would be let go occurred just a few weeks before the women were dis-
charged
6 Respondent stated in its brief that one field superintendent was dis-
missed as part of a financial reorganization . Although the record is not
altogether clear in this regard , I infer from Tynes' testimony that a field
superintendent was not dismissed but was transferred to a lesser paying
job framing houses See Tr 9
tively under her own supervision. Contrary to Pulley's
recollection, Zulaski herself indicated that she was not
supervised by Pulley until after Martin had been dis-
missed.
Pulley also stated that Greenland was less capable than
Zulaski. Pulley was particularly distressed at what she
claimed was Greenland's lack of responsibility in failing
to make a deposit one Friday afternoon, which would
have transferred $60,000 from one of Respondent's ac-
counts to another. This sum was to serve as earnest
money to cover a particular sales transaction. Pulley ex-
plained that Respondent was spared embarrassment only
because the customer failed to verify whether the earnest
money had been deposited over the weekend. Greenland
did not deny failing to make the deposit, but explained
that the bank refused to handle such a large transaction
at its outdoor window. Not understanding what the
problem was, Greenland retained the check over the
weekend. Pulley maintained that she did not offer to
return Greenland to her former position as a receptionist
since Greenland had been adamant about receiving a
higher salary. Further, Pulley indicated that Greenland
was diverted by marital problems, and therefore was less
efficient than the new receptionist, Ebeling.
Finding that the Company's economic health posture
was continuing to decline, Pulley decided in early March
that she would have to terminate Greenland and Martin.
Accordingly, she obtained Tynes' approval for her deci-
sion and at the end of the day on March 13 advised each
of the women separately that they were terminated, ef-
fective immediately, for lack of funds. However, Pulley
quickly perceived that she had to fill the gap left by
Martin 's and Greenland's departure. Accordingly, in
early April she advertised for a new bookkeeper and on
April 6 Janet Munger began working for the Respondent
at a monthly salary of $1500. On March 23, Winslow
was dismissed and within several months Nu Dawn
Realty, the business for which he had primary responsi-
bility, was phased completely out of existence.' As a fur-
ther economy, Tynes reduced his own salary from $6000
to $2000 a month, but not until August. At some unde-
termined time in 1987, he took a second mortgage on his
home, using the $100,000 proceeds for operating ex-
penses.
Discussion and concluding findings
The General Counsel contends that Greenland and
Martin were terminated because they protested the Re-
spondent's failure to pay for overtime work as required
by state law. Respondent asserts, however, that they
were discharged solely as a way to offset the Company's
serious business losses . Because the Charging Parties' dis-
charges arguably involved both permissible and imper-
missible causes , assessing the true reason for the Re-
spondent's actions requires analysis under the standards
set forth in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cit. 1981), cert. denied 455 U.S. 989
(1982); approved in NLRB v Transportation Management
7 Winslow had been in charge of marketing new homes , acgmring new
properties , and supervising the sales staff.
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Corp., 462 U.S. 393 (1983). Under Wright Line, the Gen-
eral Counsel bears the initial burden of proving that the
employees were engaged in protected concerted activity
that was a dominant factor prompting the employer's dis-
ciplinary action. If the General Counsel succeeds in es-
tablishing a prima facie case, the burden shifts to the Re-
spondent to prove affirmatively that its adverse actions
would have been the same even in the absence of the
employees' protected conduct.
On applying these standards, I am convinced that the
General Counsel has met its burden. The protected
nature of Greenland's and Martin's efforts to reform Re-
spondent's overtime policies requires no discussion, for
the Board long has held that such conduct comes within
the guarantees of Section 7. See, e.g., Joseph De Rario,
DMD, P.A., 283 NLRB 592 (1987).
The record also contains proof that their actions were
concerted, as the Board has construed that word of art.
In Meyers Industries, 281 NLRB 882, 884 (1986), the
Board reaffirmed the definition of concerted activities
adopted in the first Meyers case8 ruling that "to find an
employee's activity to be `concerted,' we shall require
that it be engaged in with or on the authority of other
employees, and not solely by and on behalf of the em-
ployee himself." Here, uncontroverted evidence estab-
lishes that Martin and Greenland shared their concerns
about the Respondent's overtime practices with one an-
other as well as bringing it to management's attention on
more than one occasion. They also advised their cowork-
ers about the requirements of state law and encouraged
them to seek just compensation for any overtime that
might be worked. When Martin met with Pulley and
challenged Respondent's failure to compensate the em-
ployees at time and a half, she did so with at least
Greenland's express consent. Moreover, when Martin
urged Pulley to advise others in the office about state re-
quirements governing overtime pay and when Greenland
urged a fellow worker to keep careful records so that
she too might receive proper compensation for overtime,
they clearly were engaged in activities that went beyond
their own self-interest.
Further, Respondent cannot seriously claim that it was
unaware of Martin's and Greenland's interest in obtain-
ing overtime pay for themselves and others in the office.
Pulley admitted as much when she testified that Martin
urged her to advise the other employees of state law,
and learned that Martin had already spoken to Zulaski
about the matter. Pulley's sudden withdrawal of Green-
land's duty to review the distribution of mail the day
after receiving counsel's letter regarding overtime pay
can be explained in only one way, she knew that Green-
land was allied with Martin in demanding that Respond-
ent comply with state overtime requirements. Pulley
maintained at trial that she was relieved to have the
overtime issue resolved, but her latter-day recollection of
such feelings cannot be reconciled with the evidence of
her expressions of frustration to Winslow about Green-
land's and Martin's activities. In addition, Hoffman's re-
marks to Winslow regarding the effrontery of "Della's
8 268 NLRB 493 ( 1984), revd and remanded Prill v. NLRB, 755 F 2d
941 (D.C Cir 1985)
girls" challenging Respondent's overtime policy reveals
Respondent's knowledge of and hostility toward the
women's concerted activity. Considering that Hoffman
shared office space with Pulley, with whom he conferred
about overtime payment for Martin, and considering also
that he was vice president of the firm and Tynes' broth-
er-in-law, his undisputed comments to Winslow are par-
ticularly probative on the question of knowledge and
animus.
Although abundant evidence establishes that Respond-
ent was well aware of the Charging Parties' concerted
efforts, knowledge also may be inferred by application of
the Board's "small plant" doctrine. See, e.g., Wiese Plow
Welding Co., 123 NLRB 616 (1959). Here, within the
confines of Respondent's crowded quarters, enough dis-
cussion of the overtime issue took place so that even a
new disinterested employee like Ebeling had heard
"something going on about overtime." If Ebeling, who
wished to abstain from politics, knew of the overtime
controversy, then certainly, Pulley, an alert and defen-
sive manager, most certainly knew of it.
Pulley's and Hoffman's angry reaction to Greenland's
and Martin's insistence on a revised overtime policy
leads to suspicion that the discharges were prompted in
large part by unlawful reasons. These suspicions are into
virtual certitude when the events leading to the dismis-
sals are juxtaposed and examined in context. In bare out-
line, the salient events are as follows: (1) In January and
in the first week of February, Greenland complained that
she had not obtained her proper wage increase, (2) and
had not received her overtime pay. The following week
Martin challenged Pulley about Respondent's overtime
pay policy and insisted on compliance with state regula-
tions. On February 18 or thereabouts, Hoffman promised
that wages would be trimmed before jobs were cut. On
February 23, Pulley received a letter from counsel indi-
cating that Martin had been right on the overtime issue
and she had been wrong. Realizing that Greenland had
seen the letter, Pulley reacted swiftly, excluding her
access to such information by relieving her of the duty
to review the mail distribution. On March 13, Pulley
fired Greenland and Martin and on April 6 hired a new
bookkeeper. The Board often has drawn an inference of
unlawful motivation when a close connection in time
exists between employees' protected concerted activity
and an employer's adverse response. See, e.g., Aluminum
Technical Extrusions, 274 NLRB 1414, 1418 (1985); Lim-
pert Bros., 276 NLRB 364, 374 (1985). Such an inference
is warranted here.
Respondent argues that because Martin had questioned
its overtime policy in 1986 without being disciplined, it
follows that her discharge in 1987 was unrelated to her
protected activity. The record shows, however, that
Greenland and Martin became aware of Respondent's
failure to comply with state overtime regulations in Feb-
ruary and thereafter insisted that Respondent comply
with those requirements. Thus, it was not until mid-Feb-
ruary that the conflict about overtime came to a head.
Respondent's acknowledgment that it had erred in refus-
ing to properly compensate for overtime preceded the
discharges by only several weeks. The close nexus be-
NU DAWN HOMES
tween these critical events undermines Respondent's ar-
gument that it had long tolerated employee criticism of
its overtime policy.
The abruptness of the discharges, announced in the
middle of a pay period and without prior notice to two
long-term employees who previously were considered
valuable contributors to the Company, lends support to
the conclusion that Greenland and Martin were fired be-
cause of their stand on the overtime issue.
In defense, Respondent contends that its financial pre-
dicament compelled it to trim its office personnel and
that Martin and Greenland were selected for discharge
only because they were the most expendable members of
its clerical staff. It is true that the Nu Dawn sister com-
panies were losing money, but business necessity is not
invariably a complete defense; it certainly may not be
used to conceal employment decisions that are unlawful-
ly motivated. Here, the Respondent's contradictory and
illogical actions persuade that the selection of Greenland
and Martin for discharge was not driven by its economic
problems.
Respondent admittedly had suffered business reverses
continually since 1986. However, no climactic economic
event occurred in 1987 that might explain why in early
March of that year Pulley decided she could wait no
longer to decimate her staff by 50 percent, thereby elimi-
nating in one swoop, her two most experienced office
employees. Certainly, Respondent's economic situation
was not serious enough to compel Tynes to reduce his
own salary by 70 percent until some 5 months after the
terminations occurred. The abrupt discharges seem par-
ticularly inexplicable when only a few weeks earlier
Hoffman had pledged that wages would be reduced
before jobs were eliminated. Indeed, Hoffman adhered to
that pledge by stepping down to the position of field su-
perintendent and transferring job supervisors to construc-
tion work rather than discharging them. Yet, contrary to
Hoffman's assurances, neither Greenland nor Martin was
offered the opportunity to remain at a reduced salary. By
deviating from its own proclaimed policy in firing the
women, Respondent provides telling evidence that cost
savings were not at the root of these actions. Respond-
ent's subsequent dismissal of Winslow does not defeat
this conclusion for his departure was simply one step in
the complete abolition of an entire Nu Dawn operation.
Pulley's alleged reasons for retaining Zulaski and Ebel-
ing in preference to Martin and Greenland seem based
on factors freshly marshalled at the time of trial rather
than at the time of their discharges. It is significant that
until March both Martin and Greenland were treated as
valued employees. Martin, who came to her job with a
wealth of experience, was awarded pay raises and bo-
nuses . At the end of January, Pulley acknowledged that
she had made a notable contribution to office procedure.
Pulley's negative appraisal of Martin gust 2 months later,
which supposedly rested in part on an error Martin made
the previous October, is a transparent attempt to conceal
the true reason for her discharge.
Respondent's contention that it discharged Martin and
Greenland to reduce overhead expenses was undermined
by its hiring Janet Munger just 3 weeks later. If lack of
funds was the real reason for Martin's dismissal (and the
559
only reason Pulley mentioned during the exit interview),
then surely Respondent would have recalled a seasoned
employee like Martin when funds became available
enough to fill the vacancy she left. Respondent also tries
to justify its action by pointing out that it hired a "full
charge" bookkeeper who was more skilled in accounting
than Martin. This argument, too, is unconvincing for
when Martin was dismissed Respondent had no way of
foreseeing who would replace her. In any event, Martin
and Munger performed virtually the same sort of book-
keeping chores. In addition, Respondent submits that be-
cause Munger worked little overtime she was a more ef-
ficient employee than Martin. Respondent may not fairly
compare Martin's efficiency with Munger's when it pre-
sented no evidence showing whether the quantity of
office work remained the same after March. Surely the
abolition of Nu Dawn Realty as a business entity had to
reduce the amount of paperwork in the office. Pulley
herself admitted that the number of invoices declined
substantially in 1987, and Martin's improved bookkeeping
procedure also had to affect the amount of overtime
worked.
In attempting to defend its actions, Respondent unfair-
ly degrades Martin's contributions and exaggerates Zu-
laski's worth. While Zulaski may be a diligent and com-
petent employee, it is clear from the record that Re-
spondent's positive comments about her performance
relate to her work at the time of trial, a year after she
joined Respondent, and not as of March 13. Evidence es-
tablishes that at that earlier time, she was inexperienced,
made mistakes, and was slower at performing her work
than was Martin. Respondent's witnesses conveniently
disregarded these deficiences when they praised her at
the hearing. Pulley and Tynes accorded educational cre-
dentials to Zulaski that she did not possess, and in so
doing underscored the contrived quality of Respondent's
defense.
Similarly, Respondent found fault with Greenland's
performance at trial, yet its conduct toward her prior to
March 13 demonstrates that she was held in high regard.
Like Martin, Greenland received raises and a bonus. Just
1 month before her rude termination, Pulley confirmed
her promotion and, despite Respondent's declining for-
tunes, assured Greenland that she could expect greater
responsibility accompanied by increased earnings. In
paying the tuition fee for Greenfield's accounting course,
Respondent appeared to be investing in training her for a
career position with the Company.
Even acknowledging that Greenland made errors in
her new position, surely, Pulley could have offered to
return her to the receptionist job at which she had been
"outstanding." Respondent's claim that Ebeling was a
better receptionist than Greenland appears less than ob-
jective. Tynes had praised Greenland's industry and her
educational achievement. Further, Tynes acknowledged,
her marital problem was long known in the office and
viewed sympathetically; it had never prevented her ad-
vancement. Moreover, if she had been offered and
agreed to return to the receptionist position, Respondent
would have had the benefit of an experienced reception-
ist who also was well trained on the computer and was
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the process of acquiring accounting skills . If Pulley's
evaluation had been genuinely neutral , Ebeling , who was
new to the office and who had neither prior exposure to
computer operations nor accounting training , could not
reasonably be considered a more desirable employee than
Greenland.
In light of the foregoing considerations, I find that Re-
spondent has failed to prove that it would have selected
Greenland and Martin for discharge even if they had not
protested its overtime policy . Respondent 's financial
problems appear to have been genuine , but its asserted
reasons for dismissing the Charging Parties are pretextual
and designed to mask an unlawful intent to penalize its
employees for exercising a right protected by Section 7
of the Act.
CONCLUSIONS OF LAW
1. The Respondent , Nu Dawn Homes, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. By discharging Susan Martin and Modesta Green-
land on March 13, 1987, because they engaged in pro-
tected concerted activities, the Respondent interfered
with , restrained , and coerced them in exercising rights
guaranteed by Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
On concluding that Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. Having unlawfully discharged Susan Martin and
Modesta Greenland, Respondent shall offer them rein-
statement, and make them whole for lost earnings and
other benefits computed on a quarterly basis from the
date of discharge to the date of a proper offer of rein-
statement, less net interim earnings in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).9
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
edio
ORDER
The Respondent, Nu Dawn Homes , Inc., Federal
Way, Washington, its officers, agents , successors, and as-
signs, shall
1. Cease and desist from
9 Under New Horizons for the Retarded, supra, interest is computed at
the "short-term Federal rate" for the underpayment of taxes as set out in
the 1986 amendment to 26 U S.C § 6621
10 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
(a) Discharging any employees because they engage in
protected concerted activities for their mutual aid and
protection.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Susan Martin and Modesta Greenland imme-
diate and full reinstatement to their former jobs or if
those jobs no longer exist to substantially equivalent po-
sitions without prejudice to their seniority or any other
rights or privileges previously enjoyed and make them
whole for any loss of earnings and other benefits they
may have suffered as a result of the discrimination prac-
ticed against them in the manner set forth in the remedy
section of this decision.
(b) 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.
(c) Remove from its files any reference to the dis-
charges of Susan Martin and Modesta Greenland on
March 13, 1987, and notify them in writing that this has
been done and that evidence of their unlawful discharges
will not be used as a basis for future personnel actions
against them.
(d) Post at its office in Federal Way, Washington,
copies of the attached notice marked "Appendix.""'
Copies of the notice on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately on 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 insure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply. For the purpose of determining or
securing compliance with this Order, the Board, or any
of its duly authorized representatives, may obtain discov-
ery from the Respondent, its officers, agents, successors
or assigns, or any other person having knowledge con-
cerning any compliance matter , in the manner provided
by the Federal Rules of Civil Procedure. Such discovery
shall be conducted under the supervision of the United
States court of appeals enforcing this Order and may be
had on any matter reasonably related to compliance with
this Order, as enforced by the court.
' I 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 "
NU DAWN HOMES 561
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To form , join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid of protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
rights guaranteed by the National Labor Relations Act
as amended.
WE WILL offer Susan Martin and Modesta Greenland
immediate and full reinstatement to their former jobs or
if those jobs no longer exist , to substantially equivalent
positions without prejudice to their former seniority or
any privileges previously enjoyed and WE WILL make
them whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
discharges of Susan Martin and Modesta Greenland on
March 13, 1987 , and WE WILL notify them that this has
been done and that evidence of their unlawful discharges
will not be used in any way as a basis for future person-
nel actions against them.
WE WILL NOT discharge employees for engaging in
concerted activities for their mutual aid and protection.
Nu DAWN HOMES, INC.