Parker Laboratories, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1983

267 N.L.R.B. 1174 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker Laboratories, Inc. and John Kenneth Jensen.
Case 22-CA-11104
12 September 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 October 1982 Administrative Law Judge
Robert T. Snyder issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
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,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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 amended complaint herein
be, and it hereby is, dismissed in its entirety.
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 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
his findings.
Member Zimmerman would find that the Respondent had no knowl-
edge of Jensen's discussions with other employees concerning his wage
problem and would dismiss the 8(a)(l) allegation of the complaint for that
reason. He notes that the Administrative Law Judge credited President
Buchalter's denial that he ever learned from Plant Manager Boston about
Jensen's complaining to other employees.
2 Subsequent to the issuance of the Administrative Law Judge's Deci-
sion in this proceeding, the United States Supreme Court issued its Deci-
sion in NLRB v. Transportation Management Corp., 97 LC 1 10,164, 113
LRRM 2857 (15 June 1983), reversing a decision by the First Circuit
Court of Appeals, relying on its previous decision rejecting the Board's
Wright Line test, ILRB v. Wright Line, 622 F.2d 899 (Ist Cir. 1981),
which had refused to enforce the Board's Order and remanded for con-
sideration of whether the General Counsel had proved by a preponder-
ance of the evidence that an alleged discriminatee would not have been
fired had it not been for his union activities. The Supreme Court held
that the Court of Appeals for the First Circuit erred in its Wright Line
decision when it held that Sec. 10(c) forbids placing the burden on the
employer to prove that absent the improper motivation he would have
acted in the same manner for wholly legitimate reasons. The Supreme
Court concluded that the court of appeals erred in refusing to enforce the
Board's Orders, which rested on the Board's Wright Line decision.
We find, in agreement with the Administrative Law Judge, that the
Respondent has demonstrated a valid business reason for employee Jen-
sen's discharge, and that such reason motivated its decision to discharge
Jensen even in the absence of Jensen's stated intention of filing a charge
with the Board.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge: Pur-
suant to a charge filed on September 1, 1981, a complaint
issued on October 16, 1981, alleging that Parker Labora-
tories, Inc., herein called Respondent, discharged John
Kenneth Jensen, herein called Jensen, because said em-
ployee engaged in certain protected concerted activities
including advising Respondent in writing of his intent to
file charges with the National Labor Relations Board, in
violation of Section 8(a)(1) of the Act. Upon the basis of
an amended charge filed November 19, 1981, the Gener-
al Counsel successfully moved, without objection, at the
opening of the hearing to amend the complaint to allege
that by the same conduct Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(4) of
the Act. By written answer, and by position expressed
orally at the outset of the hearing, Respondent denied
the commission of any unfair labor practices in violation
of the Act. Hearing was held before me in Newark, New
Jersey, on July 2, 1982. At the conclusion of the hearing,
both parties presented oral argument, and Respondent
thereafter also filed a post-hearing brief. Such arguments
and brief have been duly considered.
Upon the entire record in this case, including my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New Jersey corporation with its prin-
cipal office and place of business located at 307 Washing-
ton Street, Orange, New Jersey, where it is engaged in
the manufacture, sale, and distribution of gels and related
products used with various medical testing apparatus. At
all times material herein, Respondent has caused to be
manufactured, sold, and distributed at said Orange facili-
ty, products valued in excess of $50,000, of which prod-
ucts valued in excess of $50,000 have been shipped from
said Orange facility in interstate commerce directly to
States of the United States other than the State of New
Jersey. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR I.ABOR PRACTICES
In July 198 1,1 Jensen sought employment with Re-
spondent. A friend of his, already employed by the Com-
pany, suggested Jensen as a likely candidate for work in
shipping and receiving to Charles Boston, plant manager,
who provided an employment application for Jensen
which he completed and submitted to Boston around
mid-July. In it Jensen noted that he had been employed
by a West Orange concern for the past 7 years, that he
was then head of shipping and receiving and earning $4
per hour 2 and asked for $180 per week (or $4.50 per
All dates hereinafter refer to the year 1981, unless otherwise noted.
2 Jensen's initial recollection that he had noted $4.50 per hour as his
present salary, on the employment application, was stated in error. In ac-
Continued
267 NLRB No. 162
1174
PARKER LABORATORIES, INC.
hour). In an interview at the same time Jensen advised
Boston that his present employer was going out of busi-
ness and that he was then available. During the conver-
sation, in a discussion of salary, according to Jensen,
Boston noted his 7 years' experience and stated he would
try to get Jensen $5 per hour. According to Boston, after
noting Jensen's 7 years' experience, he suggested $4.50 as
a starting salary to which Jensen responded he would
like $5 an hour but would take $4. Boston testified he re-
plied that "if you are good and once I speak to Mr. Bu-
chalter [Martin Buchalter, president and sole stockholder
of Respondent], it's no reason why you cannot come up
to $5.00 an hour." Because of Jensen's unsound recollec-
tion and the greater disparity between Jensen's present
salary and the desired $5 then Jensen initially acknowl-
edged, I credit Boston's account of this aspect of the
conversation.
With respect to a decision to hire Jensen, according to
Jensen at this interview he was told he would be starting
in 2 weeks at the beginning of August. According to
Boston, Jensen was not hired at the interview, but after
an elapse of about 10 days, on Thursday, July 30, Boston
told Jensen's friend to inform Jensen to report for work
the following day, which was the beginning of a work-
week. I conclude that while Boston probably left Jensen
with the impression that he was going to be hired, and
would probably be starting shortly, no specific date was
set.3 In any event, on the basis of this interview, Jensen
provided 2 weeks' notice to his present employer of his
intention to leave.
During this period between the interview and Jensen's
starting work on July 31, Jensen and Boston had occa-
sion to meet casually on the street while both were on
their way to work. According to Jensen, the first time, a
few days after their initial meeting, Boston told Jensen,
"I am working on it." The second time Boston told him,
"o.k., you've got it." Jensen took this last comment to
mean that his request for a $5 starting salary had been
approved. According to Boston, he saw Jensen and his
friend every morning walking and waved to them while
he drove to work. Once, at such a time, Jensen called
out to him, "When am I going to get the job?" to which
Boston replied, "You got it." Boston here was referring
to the job and not to the requested starting rate. Whether
or not Jensen made the initial inquiry, I find he misinter-
preted Boston's comment which was admittedly ambigu-
ous at best.
In fact, after informing Buchalter about someone in-
quiring about a job and obtaining authorization to hire
someone if he needed help, Boston hired Jensen without
obtaining further approval. Further, at the time of his
starting work, Boston had not yet consulted Buchalter
about Jensen's request for $5. This was wholly consistent
with Boston's response to Jensen when the matter was
tuality, he was then earning $3.80, but for a reduced workweek. This
error has some significance because it was on the basis of a claim of a
present salary of $4.50 that, according to Jensen, a discussion ensued fol-
lowing which Jensen took certain expressions and physical signs made by
Boston during a later chance encounter as evidencing an understanding
that he was to receive a starting salary of $5 per hour.
3 Jensen never explained how he happened to start work on a Friday,
July 31. Boston's explanation appears to be reasonable and most in accord
with the facts.
first raised, that Jensen would first have to demonstrate
his capabilities4 to warrant that sum.
Within a few days of Jensen's starting work, the sub-
ject of salary arose again, at which time Jensen learned
he was receiving $4.50 an hour rather than $5. Jensen
testified Boston came to him and said, "Ken, Marty [Bu-
cha;ter] does not want to pay the $5." Boston's recollec-
tion is that Jensen opened the matter by seeking confir-
mation of the $5 rate to which Boston responded, "I did
not promise you $5, you have to speak to Mr. Buchalter
to get his o.k. to give you $5.00." I credit Boston on this
exchange. Jensen appeared genuinely disappointed and
stated that he had assumed Boston's comments from his
car had confirmed his receiving the increased salary. The
discussion led to a reference to Respondent's probation-
ary period and ended with Boston agreeing to speak
with Buchalter to see what he would do for Jensen on
the matter.
Thereafter, Jensen raised the question of the increase
to $5 with Boston at every opportunity and, according
to Jensen, Boston explained that he was working on it.
Boston testified he spoke with Buchalter about the prob-
lem, who told him "let him work and if he is good, we
will shorten the probationary period to 6 weeks." Boston
reported to Jensen that he had spoken to Buchalter and
the answer was: "If you are qualified, after a certain
length of time, we will give you the S5."
During these few weeks after Jensen learned he would
not be receiving $5 he brought his problem to the atten-
tion of at least one fellow worker, Willy Cooper, and
Cooper reported to Boston that Jensen had asked him
how much he made, that he had been promised X
amount of money but after he came to work he was not
being paid the promised amount. Buchalter credibly
denied ever learning from Boston about Jensen's com-
plaining to other employees. After a few weeks, and Bos-
ton's report of his conversation with Buchalter, Jensen
informed Boston that he was going to deal directly with
Buchalter. Boston did not object. 5
On August 25, Jensen approached Buchalter's execu-
tive assistant to arrange a meeting with Buchalter. At or
about 3 p.m. Buchalter saw Jensen on the plant floor and
said, "I heard you wanted to talk to me." When Jensen
replied, "We seem to be having a problem about my
wages here," Buchalter asked Jensen to tell him about it.
Jensen briefly described his encounters with Boston and
the impression he had that he was supposed to be paid a
certain wage. Buchalter expressed his ignorance of these
meetings and then called Boston over. According to
Jensen, Buchalter asked Boston if he was under the im-
pression that Ken was supposed to get $5 an hour.
Boston said yes. Then Buchalter asked if Joyce
O'Dwyer, his executive assistant, was under the same im-
pression. Again, Boston said yes. At this point, Buchalter
said, "If Charles said it is five, it is five."
4 Respondent had a practice of utilizing a 90-day probationary period
for new employees.
b During one of their later conversations, Boston advised Jensen that
Buchalter had agreed to cut the probationary period in half, thereby re-
ducing the time to 6 weeks. This was still unsatisfactory to Jensen.
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buchalter testified to this meeting as well as his per-
sonal knowledge of Jensen's claim and discussions relat-
ing thereto which preceded it. A week following Jen-
sen's hire, Boston came to him and said, "I hired Jensen
and now he claims I promised him $5 an hour." Bu-
chalter responded he would give Jensen $5 if he proved
himself. Thereafter, Boston came to him on multiple oc-
casions with the same complaint voiced by Jensen. Final-
ly, after Boston told him Jensen was driving him crazy,
Buchalter suggested cutting the waiting time in half to 6
weeks. To this point, and even with respect to many as-
pects of the meeting of August 25, Buchalter's version of
his involvement does not differ materially from Boston's
or even Jensen's.
On August 25, Buchalter testified he learned that a
problem he thought had been resolved was continuing
unabated when Joyce O'Dwyer told him Jensen wanted
to see him. Later in the day, Buchalter spoke to Jensen
in the back of the plant. Jensen insisted he had been
promised $5 and Buchalter replied that Boston denied
making any such promise, only that Jensen would re-
ceive $5 after the 3-month period. Then Buchalter sug-
gested bringing over Boston. When Boston arrived and
Buchalter asked if he had promised the $5, Boston
denied having done so. Boston also testified he denied at
this meeting having made such a promise. I credit Bu-
chalter and Boston. Among other reasons for doing so, I
find it would be inconsistent and illogical for Boston to
have admitted conduct at this time which he uniformly
denied having engaged in on all other occasions accord-
ing to the testimony of both Jensen and Boston. In any
event, at this time, Buchalter said, "There really is a mis-
understanding here. Let's end it now. There has been
enough discussion on it. You have your $5 and it will be
for the whole pay period which we are into already."6
In view of my crediting of Boston's denial of any agree-
ment, I also credit Buchalter's version of his remarks
here.
It is uncontested that in accordance with Buchalter's
promise, a check covering the current pay period in the
sum of $398.75, representing 79-3/4 hours at the rate of
$5 per hour was prepared in advance that week by Joyce
O'Dwyer along with all other paychecks in anticipation
of their distribution on September 1. The checks were
prepared at that time because O'Dwyer was going to be
on vacation for the period including the payroll distribu-
tion.
That paycheck was never distributed to Jensen. On
Thursday, August 27, 2 days later, Jensen and Boston
had some words while loading a truck, as a result of
which another misunderstanding resulted, leading Jensen
to believe that Buchalter had reneged in his promise to
immediately raise Jensen's salary. As related by Jensen,
Boston came over to him and said, "Come here, Ken"
and then started yelling, "I am sorry I f- hired you.
You have been a pain in my ass-. Marty has been on
my ass. He does not want to give you the money."
Jensen responded, "What is this all about, man," and
they went into it for a few minutes. At that point,
Boston walked away, and as Jensen asked him, "What is
6 The pay period running from Friday, August 21, through Thursday,
September 3.
it, Charles?" Boston said, "Forget it." According to
Boston, as he and Jensen were loading a truck, Jensen
said, "Charlie, I hope there's no hard feelings." Boston
replied, "Definitely not. But Ken, I am sorry the whole
thing was blown out of proportion. Just forget it."
Boston then walked away, and as Jensen sought to call
him back, Boston answered, "Ken, I do not want to hear
nothing. Forget it," and at the same time waved his
hands in the air in a shrugging gesture.
I find that the truth of this interchange probably lies
somewhere in between both versions. It is probable that
Boston was disturbed about the bother Jensen had
caused him, and, further, that a problem involving one of
his own employees had to be ultimately resolved by Re-
spondent's president. It is also probable that Buchalter
may have been less than enthusiastic in later comments
he made to Boston about the outcome of the affair. It
would also appear that Boston's own admitted reluctance
to discuss the matter reflected some of his own and Bu-
chalter's reservations about having finally given in to
Jensen's entreaties. Accordingly, I find that while Boston
did not state to Jensen that he would not receive the
raise, there was evidently something about Boston's re-
luctance to bury the hatchet and his use of the phrase
"foget it" which led Jensen to question the finality of the
agreement he had apparently achieved just 2 days earlier.
In spite of Jensen's feelings, the record is clear that
Buchalter intended to honor his commitment to Jensen
and pay him the $5 in his next paycheck.
Following this August 27 conversation, Jensen wrote
the following note which he personally left on Bu-
chalter's desk early on the morning of Monday, August
31.
Mr. Buchalter:
It has come to my attention that despite our con-
versation of last Tuesday you now plan to renege
on our agreement concerning my salary. I do not
understand your motivation but I do know that I
can no longer tolerate the situation as it now stands.
If my paycheck this Thursday does not reflect the
$5 per hour salary we agreed upon, I will be left
with no recourse but to file charges against you
with the Wage and Hourly Division of the Dept. of
Labor and the National Labor Relations Board. I
hope that this action will not become necessary.
Ken Jensen
On Buchalter's return later that day with Boston and
another employee from a local business trip, he saw Jen-
sen's note, started reading it, and, according to Bu-
chalter, when he came to the portion about reneging on
our agreement, explained to Boston, "He does not trust
us. This is ridiculous." Immediately thereafter, when Bu-
chalter read that Jensen could not tolerate the situation,
he added, "I cannot tolerate the situation," turned to
Boston and said "let him go."
That afternoon, Buchalter prepared a letter to Jensen
and had a termination check drawn representing Jensen's
final pay from August 21 through August 31. That letter
1176
PARKER LABORATORIES, INC.
and final pay were given to Jensen that day. The letter
reads as follows:
August 31, 1981
Dear Mr. Jensen:
This is in response to your undated note to me
which I found on my desk this afternoon, marked
"Personal and Confidential."
I would like to remind you that your application for
employment dated July 9, 1981 asked for a salary of
$180.00 per week or $4.50 per hour for 40 hours.
Your previous employer reported you had worked
for 7 years and your current salary was "approx"
$4.00 per hour. It was my understanding that your
performance would be reviewed and evaluated at
the end of the 127 weeks, as is customary in our
company. At that time you would receive an addi-
tional 50t per hour if the performance report was
satisfactory.
At your insistence, our Plant Manager, Mr. Charles
Boston, discussed your salary review and as a result
we agreed to review your performance at the end
of 6 weeks instead of the usual 12.8 One week later,
on August 25, 1981, you informed Mrs. O'Dwyer
that you wanted to speak with me. The discussion
once again was salary. After speaking to Mr.
Boston in your presence, we thought it justified to
increase your salary to $5.00 per hour immediately.
Your salary check for the two week period from
August 21 through September 3rd had already been
prepared at $5.00 per hour by Mrs. O'Dwyer prior
to her leaving for vacation.
This letter is to inform you that we will not be sub-
jected to intimidation, threats or accusations of re-
neging on any agreements. Therefore, your employ-
ment is terminated effective immediately. The en-
closed termination check represents compensation
from August 21 through August 31, 1981 at $5.00
per hour.
Very truly yours,
Parker Laboratories, Inc.
Marty Buchalter, President
According to Buchalter, his reaction to Jensen's letter
was one of total shock and amazement. He was disturbed
that after receiving what he wanted he was calling Bu-
chalter and his plant manager liars.9 As explained by Bu-
chalter, Jensen had been doing this for a month, and this
time was the last straw.
Finally, according to Buchalter the use of the phrase-
ology later in Buchalter's discharge letter relating to in-
timidation, threats, or accusations of reneging on any
agreements had reference to Jensen's stated unwillingness
7 The duplicate copy of the letter received in evidence is unclear here.
The figure could be read as either 16 weeks or 12 weeks.
8 Ibid.
9 in Buchalter's view, when Jensen said in the letter that Buchalter
was reneging on their agreement he was accusing Buchalter of saying
one thing but of doing another, therefore, of lying about his intentions.
He was also aware that Jensen had been accusing Boston of lying about
the matter of the $5-an-hour salary from the very beginning.
to tolerate what he perceived to be Buchalter's reneging
and the general tone of the letter, and the word intimida-
tion referred, in particular, to the hard time he had been
giving Boston, his plant manager, in the factory. When
asked his reaction to Jensen's statement of intention to go
to the Wage and Hour Division and the NLRB, Bu-
chalter responded, "I think I blew long before I got to
that point," adding that as the letter was written in red
he mentioned to Boston at some point before he complet-
ed reading the letter that "I see red." Buchalter denied
that he felt in any way a sense of intimidation or threat
as a result of knowing that this problem with Jensen
might end up before some official tribunal. Buchalter just
could not understand the purpose of the letter.10 As Bu-
chalter stated at the conclusion of his cross-examination,
"the whole thing is the fact that in one month of em-
ployment, this person constantly, almost daily, created
problems to the point that I felt he is a trouble maker. I
felt that he will never be satisfied, that no matter what
we do for him, he is not going to be satisfied to stay
there."
Analysis and Concluding Findings
Two issues are presented for decision in this case. The
first is whether Respondent discharged Jensen because
he engaged in protected concerted activities other than
expressing his intention to file charges with the Board, in
violation of Section 8(aXI). l
The General Counsel urges that Jensen's discussions
with other employees concerning his wage problem is
protected activity and that this activity entered into Re-
spondent's decision to discharge him.
Respondent argues that as Jensen in the discussion of
his individual claim for an increased wage with one or
more other employees did not contemplate that his
grievance would impact to the slightest degree upon any
of the other employees, his complaint did not rise to the
level of protected concerted activity. Here, Respondent
relies on the views expressed by the United States Court
of Appeals for the Third Circuit in NLRB v. Northern
Metal Company, 440 F.2d 881 (3d Cir. 1971), where the
fact pattern, involving a reiterated individual claim for
holiday pay, was similar to the instant facts.
On this threshold issue of the nature of Jensen's con-
duct viz-a-viz other employees, I conclude that Jensen's
expressions of dissatisfaction to employee Cooper with
the way in which Respondent had allegedly failed to live
up to a commitment for a higher starting salary for him
io At the time, Buchalter was unaware of any interchange or "words"
between Boston and Jensen subsequent to his expressing the commitment
to Jensen.
" Initially, the General Counsel disclaimed any intention of asserting
that the complaint alleges an independent violation of Sec. 8(aXIl) of the
Act. Then, after Jensen completed his testimony, the General Counsel
had rested and Respondent had argued for dismissal of the 8(aXI) allega-
tion, the General Counsel now claimed that Respondent had independ-
ently violated Sec. 8(a)(1). While I have some question about the timing
of the General Counsel's change in position, in view of the posture of the
complaint up to its amendment at the opening of hearing, alleging only a
violation of Sec. 8(aXI) of the Act. and the fact that Respondent, in argu-
ing for dismissal of the allegation had assumed it to be still alive, and,
further, has addressed the matter in its brief, I am prepared to make find-
ings and conclusions on the issue.
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not constitute engagement in concerted activity
protected by the Act.
Section 8(a)(1) prohibits interference, inter alia, with
the right of employees, expressed in Section 7, "to
engage in other concerted activities for the purpose of
. . . other mutual aid or protection." It is clear that in
griping about Respondent reneging on a promise of a
higher wage, Jensen's grievance did not relate to a
matter of common concern to other employees. Neither
was he encouraging similar expressions of dissatisfaction
which could lead to joint action about mutual concerns
nor was he seeking to initiate group behavior for any
particular common objective related to employees' inter-
est. Thus, under both Board'2 and court'3 precedents in
this area, I conclude that the very limited record evi-
dence of Jensen's griping about Respondent's renouncing
an individual wage agreement fails to establish that he
engaged in protected concerted activity in this regard.
Thus, even if Jensen's "griping" had been a motivating
factor in Respondent's decision to discharge him,' 4 since
Respondent would have placed reliance on conduct not
protected by the Act, Respondent's discharge for this
reason would not have violated the Act. The evidence,
however, does not support the conclusion that Jensen's
griping to fellow employees played any serious role in
his discharge. There is even serious doubt whether Bu-
chalter ever became aware of Jensen's relating his wage
problem to others in Respondent's employ. Buchalter
himself credibly denied any such knowledge. And the
only contrary evidence adduced by the General Counsel
bearing on this question-a paragraph in a letter dated
October 13, 1981, addressed to the Board's Regional
office by Respondent's counsel and containing a refer-
ence to Buchalter advising Jensen at the August 25 meet-
ing that he was ". . . getting other employees involved
in a problem that was not of their making"-was pre-
pared well after the event, does not accord with either
Jensen's, Buchalter's, or Boston's testimony about the
meeting and contains a serious misstatement of fact in de-
scribing Buchalter's taking under active consideration
Jensen's request for $5 whereas, in fact, all parties agree
that Buchalter granted the increase at the conclusion of
the meeting.
Finally, during oral argument at the conclusion of the
hearing, the General Counsel argued that the motivating
factor in Jensen's termination was his threat to file
charges with the Board, thereby conceding that Jensen's
involvement with other employees over his wage prob-
lem was not the motivating factor for his discharge.
The second issue is whether Respondent discharged
Jensen because he threatened to file charges with the
Board in violation of Section 8(a)(4) and (1) of the Act.
Again, a threshold issue arises as to whether Jensen's
stated intention to seek Board assistance on his wage dis-
pute comes under the protection of Section 8(a)(4) which
1" National Wax Co., 251 NLRB 1064 (1980); Tabernacle Community
Hospital & Health Center, 233 NLRB 1425 (1977).
IJ Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir.
1964); Indiana Gear Works Corp. v. NLRB, 371 F.2d 273, 276 (7th Cir.
1967). See Buddies Supermarkets, 197 NLRB 407 (1972), enf. denied 481
F.2d 714 (5th Cir. 1973).
14 See Wright Line, 251 NLRB 1083 (1980), enfd. NLRB v. Wright
Line, 622 F.2d 899 (Ist Cir. 1981), cert. denied 455 U.S. 989 (1982).
prohibits an employer ". . . to discharge or otherwise
discriminate against an employee because he has filed
charges or given testimony under this Act." The answer
is in the affirmative. The Supreme Court has approved
the Board's view that Section 8(a)(4) is not to be limited
to its literal terms, but is to be construed liberally "in
order to effectuate the Section's remedial purpose." 1 5
While the Supreme Court was applying the broad reach
of Section 8(a)(4) to protect employees who had given
written sworn statements to the Board, that same princi-
ple has since been applied by the Board, with court af-
firmance, to protect employees who express an intention
to file charges.'
Furthermore, even though Jensen's complaint related
to an individual dispute which was not encompassed by
the Act's statutory protections, it is clear that even com-
plainants who mistakenly seek to invoke Board processes
will nevertheless be considered within Section 8(a)(4)'s
protective reach. 7
Having resolved these preliminary matters, the basic
issue remains whether Respondent discharged Jensen be-
cause he engaged in conduct protected by Section
8(a)(4).
In analyzing this issue, I will apply the mode of analy-
sis set forth by the Board in Wright Line, 251 NLRB
1083 (1980), enfd. NLRB v. Wright Line, 622 F.2d 899
(Ist Cir. 1981), cert. denied 44 U.S. 989 (1982).18
Under Wright Line, the Board first looks to whether
the General Counsel has made a prima facie showing suf-
ficient to support the inference that protected conduct
was a "motivating factor" in the employer's decision.
Here, the General Counsel points to the language in Jen-
sen's letter relating to his desire to file charges against
Buchalter with the Board if his next paycheck did not
reflect the $5 salary agreed upon, Buchalter's immediate
typed response the same day in which Jensen was in-
formed Respondent will not be subjected to intimidation,
threats, or accusations of reneging on any agreement and
Buchalter's immediate decision to terminate Jensen also
announced in the responsive letter. The General Counsel
relies, in particular, on Jensen's August handwritten note
containing his threat to file charges as providing the only
new event between the pattern of Jensen's entreaties for
i5 NLRB v. Scrivener, 405 U.S. 117 (1972).
'6 First National Bank A Trust Co., 209 NLRB 95 (1974), enfd. 505
F.2d 729 (3d Cir. 1974). See General Nutrition Center, 221 NLRB 850
(1975).
"7 Clark & Hinojosa, 247 NLRB 710 (1980). The General Counsel does
not claim that Jensen's reference to the Wage and Hour Division of the
Department of Labor was a motivating factor in his discharge. Even if
relied upon, I would conclude that this declared intention was neither en-
compassed by Sec. 8(aX4) of the Act, nor did it constitute concerted ac-
tivity for the purpose of mutual aid and protection within the meaning of
Sec. 7 of the Act. See Inked Ribbon Corp., 241 NLRB 7, 10 (1979).
IH Wright Line, id., and most, if not all of the succeeding cases apply-
ing its analysis, have involved alleged 8(a)(3) or (1) violations turning on
employer motivation. As determination of the motive for the employer's
action is the central concern governing the resolution of allegations of
Sec. 8(aX4), and as the Board has said that it will apply its Wright Line
mode of analysis in cases where a respondent asserts that it had "good
cause" for taking disciplinary action against an employee, United Parcel
Service, 252 NLRB 1015, 1016, fn. 5 (1980)-the defense taken by Re-
spondent here-I will apply Wright Line in this case. It is also noted that
both counsel applied Wright Line in their analysis of the 8(a)(4) issue in
closing arguments as did Respondent in its post-hearing brief.
1178
PARKER LABORATORIES, INC.
the money allegedly due him commencing a month earli-
er, and Respondent's decision to fire him.
I am in agreement with the General Counsel that these
factors provided a sufficient basis, although just barely,
upon which to predicate a violation of the Act.
The next focus is on the employer's defense. Has the
Respondent here come forward with sufficient evidence
to show that Jensen would still have been discharged
even in the absence of the protected conduct.' 9
I conclude that Respondent has rebutted General
Counsel's prima facie case and that under either the
Board's analysis or the Third Circuit modification of the
Board's formulation the General Counsel has failed to
sustain its burden of proof on the issue.
The history of Jensen's complaints in the month of his
employment shows an employee who refused to budge
an inch on his claim of breach of a prehire agreement.
Even when the regular probationary period was halved
he refused to compromise his demand. The consequence
of his conduct was that the production manager as well
as Respondent's president came to view Jensen as a pain
in the neck. In spite of the negative feelings he engen-
dered, the record is clear that Jensen finally achieved his
long-sought objective of an upward revision in his rate
to $5 an hour. Following on the heels of this achieve-
ment of Jensen's goal, it was exceedingly reasonable for
Buchalter to conclude, as I find he did, that Jensen's hea-
vyhanded letter was the last straw in a series of confron-
tations in which the employee had impugned the good
faith of his employer. I conclude based both on Bu-
chalter's description of his immediate response to Jen-
sen's letter made in the presence of Boston, as well as his
testimony explaining and clarifying the somewhat ambig-
uous language of his letter, and, on consideration of the
history of the dispute which had simmered for some time
until its seeming resolution that Buchalter became com-
pletely disenchanted with Jensen's pattern of confronta-
tion, including his impugning of Buchalter's and his pro-
19 The Board characterizes its test as shifting the burden to the em-
ployer once the General Counsel makes a prima facie showing. Both the
First and Third circuits have rejected any shift in the burden of proof to
the employer which ultimately continues to remain with the General
Counsel. while the burden of coming forward with evidence of a legiti-
mate business reason for its action shifts to the employer. NLRB v.
Wright Line, 662 F.2d 899 (Ist Cir. 1981), and Behring International v.
NLRB, 714 F.2d 291 (3d Cir. 1983).
duction manager's good faith, and motivated primarily, if
not solely, by these considerations, took the action com-
plained of in this case. 20
In the absence of any independent evidence demon-
strating a primary motive of punishing Jensen as an em-
ployee for seeking Board aid on his claim and given the
General Counsel's failure to discredit Buchalter's testi-
mony describing his reasonable reaction to Jensen's ac-
cusatory letter under all the surrounding circumstances
of the previous interactions between Jensen and Re-
spondent's management on this dispute including man-
agement's final accession to Jensen's "demand," and Bu-
chalter's adequate explanation for the choice of language
in the last paragraph of his written response to Jensen's
note, the General Counsel's case must fail. Respondent
has demonstrated a valid business reason for Jensen's dis-
charge, one which I conclude motivated its decision to
discharge Jensen even in the absence of Jensen's stated
intention of filing a charge with the Board.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The General Counsel has not established by a pre-
ponderance of the evidence that the Respondent has vio-
lated the Act in any manner as alleged in the amended
complaint.
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Sec. 10(c) of the Act, I hereby issue
the following recommended:
ORDER2 '
The amended complaint is dismissed.
20 Given the fact that Jensen's increased compensation pursuant to
agreement was reflected in a check already prepared when Jensen wrote
and left his letter on Buchalter's desk, there seems to have been little
reason for Buchalter to fear that Jensen would carry out his intention of
filing a Board charge once Respondent's compliance with the August 25
understanding became known to him. In fact, Buchalter's letter makes
clear that compliance.
1i In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
1179