Pennsylvania Compensation Rating Bureau

National Labor Relations Board - Board Decisions

Mar 7, 1983

266 N.L.R.B. 396 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennsylvania Compensation Rating Bureau and Iris
E. Paige, Geraldine A. Mistie, and Diane M.
Rickards. Case 4-CA-12218
March 7, 1983
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
JENKINS AND ZIMMERMAN
On November 10, 1982, Administrative Law
Judge Joel A. Harmatz issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent 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,t and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
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.
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, 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.
In agreeing with the result reached herein, Chairman Miller finds it
unnecessary to place any reliance on Alleluia Cushion Co., Inc., 221
NLRB 999 (1975), or its progeny.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard by me in Philadelphia, Pennsylva-
nia, on August 20, 1982, upon an original unfair labor
practice charge filed on June 29, 1981, and a complaint
issued on December 14, 1981, which as amended alleges
that Respondent violated Section 8(a)(l) of the Act by
discharging the Charging Parties because they engaged
in the "protected concerted activity of writing comments
on written warning notices issued to them on June 9,
1981." In its duly filed answer, Respondent denied that
any unfair labor practices were committed. Following
close of the hearing, briefs were filed on behalf of the
General Counsel and Respondent.
Upon the entire record in this proceeding, including
my direct observation of the witnesses while testifying
and their demeanor, and consideration of the post-hear-
ing briefs, it is hereby found as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an unincorporated, nonprofit association
of insurance companies engaged in providing rating serv-
ices for insurance companies at its Philadelphia, Pennsyl-
vania, facility. In the course of said operations, Respond-
ent, during the calendar year preceding issuance of the
complaint, provided services exceeding $50,000 in value
to customers located outside the Commonwealth of
Pennsylvania.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This case tests the validity under the National Labor
Relations Act of the termination of Iris E. Paige, Geral-
dine A. Mistie, and Diane M. Rickards. All three were
issued written disciplinary warnings on Tuesday, June 9,
1981.' The next day all three returned their warnings to
supervision with personally inscribed notations reflecting
their individual protest. That same afternoon, the em-
ployees were interviewed separately by their supervisor
concerning the written protests, and toward the end of
the workday on June 11, all three were terminated.
The General Counsel contends that the employees' re-
sponse to the warnings furnished the cause for discharge
which in turn was unlawful either because such activity
was protected under Section 7 of the Act or because it
was believed to be so by Respondent. Respondent on the
other hand denies that it acted on any such grounds, ar-
guing instead that "the weight of evidence . . . permits
only the conclusion that these employees were dis-
charged for violating Respondent's work rules restricting
excessive talking during worktime and failing to heed
proper disciplinary warnings for such conduct." Further-
more, and in the alternative, Respondent contends that
the employee conduct involved was neither protected by
the Act, nor believed to be such by any of its representa-
tives.
More specifically, the facts show that Paige was hired
in September 1976, that Mistie was first employed in
May 1978, and that Rickards was hired in June 1978. At
the time of their discharge, all three were employed in
the Rating Department. Paige was classified as an experi-
enced rating clerk, and Mistie and Rickards both held
the position of stat review clerk. Their immediate super-
visor was "Lucy" Wright, who, in turn, reported to the
assistant director of the department, Edward Mar-
' Unless otherwise indicated all dates refer to 1981.
266 NLRB No. 81
396
PENNSYLVANIA COMPENSATION RATING BUREAU
ynowitz. The overall department was manned by ap-
proximately 23 employees.
With respect to the warnings it appears that the three
dischargees were assigned to adjacent desks, immediately
outside the office of Wright and, hence, worked within
her direct view. On June 9, 1981, the former were called
in a group to Wright's office, where the written warn-
ings were distributed. 2 The offense listed on that of
Paige and Rickards simply stated "talking," while that
given to Mistie recited "Personal Phone Calls, Talking."
There was no further elaboration. Wright requested that
the warnings be reviewed, signed, and returned with any
comments the employees might choose to make. Wright
also testified that she told all three that if they "contin-
ued talking and disturbing the work force" that she
would put them on "probation."3 Each warning included
the following form language:
The purpose of this notice is to call the above defi-
ciency to your attention, and give you an opportu-
nity to correct it. A copy of this notice will be
placed in your personnel file and may be considered
in future disciplinary actions.
Having received the warnings, Mistle upon returning
to her desk immediately wrote a response on the warn-
ing notice. Paige and Rickards took their warnings to
their respective homes, and that evening wrote their re-
sponse also on the warning.
The inscription authored by Diane Rickards set forth
as follows:
(Today is June 9, not June 8, is there a reason for
me getting it the day after it was typed?)
I feel this . . . was totally unnecessary and absolute-
ly ridiculous. You treat adults like they are in nurs-
ery school rather than work. You expect people to
continuously work and never give themselves a
break. It is impossible to work all the time. Every-
one needs a rest. How can you expect us to do
something that no one can? It seems to me that you
should have more to occupy your time with than to
spend it thinking up childish things like this to give
to people. You should be more concerned with
finding the best ways of getting the work complet-
ed. It shouldn't matter if people spend a few min-
utes talking to unwind if their work is getting done.
You should be trying to work with us not against
us. Our work is caught up, there is no backlog with
the letters, so it is obviously [sic] that we can get
our work done too.
That of Gerry Mistie recited as follows:
I See G.C Exhs. 2. 3, and 4.
3 With respect to her use of the term "probation," to a leading ques-
tion, propounded by counsel for Respondent, Wright corrected herself
and indicated that she at that time threatened to put them on additional
"warning" if the problem persisted. In any event, this orally communicat-
ed threat of further discipline has not gone unnoticed in my assessment of
Respondent's testimony and claim that all three were discharged solely
because they were caught in a second offense on the morning of June 1I.
In reply to this letter, I Gerry Mistie think it is very
unfair. I do admit I used the phone during the time
of my wedding. I had obligations to take care of.
But I don't get all personal calls. I do get business
calls. I think its unfair especially that I get pin-
pointed out as using the phone when there is [sic]
five phones in here, not counting the supervisor's,
and believe me they are all on the phone talking
personal, believe me or not. I was told by my direc-
tor that it was okay as long as it wasn't a long time
on the phone, and until he told me that's what I
was told. As far as my talking well, I'm sorry to say
that is unfair too, everyone dos there [sic] share of
talking and just because we get seen talking and
they don't well that's just an excuse to me, for them
to give us one of these childish paper. I admit I talk
but believe me we all do our share. I do my work
and that's what they should be concerned about. I
know nobody ask me for my opinion but I feel I
have to let you's [sic] know this is wrong to some
and not all, I mean about getting this paper. I also
feel if this is going in my records I want the truth
to go in it.
That of Iris Paige stated:
To whom it may concern,
I would like to take the time to express my personal
feeling on receiving a warning notice for talking. I
feel this is totally unreasonable and unfair!
1. I don't feel that I have or ever been a constant
disturbance to the office. Also, when first brought
to my attention about such warning, I questioned
my director as to what warnings were all about. I
remember saying you are first warned verbally. No
one gave me such warning. And it is my belief that
others were warned verbally first.
If warnings like this must be done, it is my opinion
that it should be done in extreme cases only (one
who constantly disrupts the office and who's [sic]
work may be affected by this). I believe if my su-
pervisor felt I was talking more than usual, a simple
be quiet or hold it down would have been sufficient!
Because I take my job seriously I don't feel that
these warnings should be given for the sake of it or
because a supervisor may be in a rotten mood or
had a bad vacation or even if the girls in the office
got a little out of hand that day. Therefore I truly
feel that this warning notice should be scratched
from my personnel record.
Please note, this notice is dated 6/8/81 but was
given on 6/9/81-is there a reason for that??
On June 10, upon specific request by Wright, the dis-
chargees returned the warnings to the former. After ex-
amining the responses Wright met individually with each
employee. She first called Iris Paige. She reminded Paige
that she had been placed on warning for talking and that
it had to stop. The latter argued that she was supposed
to be verbally warned before receiving anything in writ-
ing, whereupon Wright indicated that she had done so.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paige then called Wright a "liar." Paige also indicated
that she considered the written warning "totally ridicu-
lous," unfair, and stated that her daughter in kindergar-
ten didn't bring home "such junk." 4
Mistie was next to appear. As in the case of Paige,
Mistie was informed by Wright that both the talking and
her personal use of the telephone had to end. Mistie
challenged, asserting that everyone else was guilty of the
same offense. Wright explained that that might be so, but
that she could hear and see Paige, Mistie, and Rickards,
but not the others. Mistie also indicated that she did not
think that criticism of her use of the telephone for per-
sonal reasons was fair in that she had received permis-
sion from Marynowitz to use the phone as long as she
kept her conversation short. Wright indicated that she
was aware of this, but this was before Mistie's wedding,
an event that had since passed. When Wright reminded
Mistie of her comment that the warning was "unfair and
childish," Mistie reaffirmed her opinion in this respect,
and accused Wright of singling out certain employees,
when all others were guilty of the same offense.
In Rickards' interview, the latter reiterated her view
that the warning was totally ridiculous. She went on to
state that it had been shown to her husband, who signi-
fied his concurrence by rolling on the floor and laugh-
ing. Wright reminded that the Bureau had rules against
talking and that warnings for such an offense were not to
be taken lightly. To this, Rickards indicated that she felt
the warning was "stupid." 5
Following the individual interviews, Wright took the
warnings to Ed Marynowitz, her superior. At this point,
according to clear testimony by Wright, she was not
concerned with the conduct to which the warnings were
addressed, but solely to the nature of the responses and
the attitude manifested thereby. Marynowitz read the
warnings, and actuated also by the attitude reflected in
the employee reaction, he thereupon elected to take the
matter to Charles Suitch, Respondent's senior vice presi-
dent. As to the cause of his intervention, Suitch himself
explained that "at the end of June 10 . . . Mr. Mar-
ynowitz came to my office and voiced his concern over
the attitude and reflection of the comments made to
Lucy Wright in her individual interviews with these em-
ployees." In further clarification, Suitch explained as fol-
lows:
As I stated, Mr. Marynowitz voiced concern to me
about the attitude that was reflected in the individu-
al interviews with the three employees and the
comments that were made to her; comments of:
"you're a liar"; "my husband rolled around the
floor laughing." And, to us, those comments-we
don't object to anybody making-disagreeing with
4 Paige, like Rickards and Mistie, testified that Wright stated that there
was nothing to worry about concerning the one warning and that it
would be placed in files held by Marynowitz and would not go to per-
sonnel. Wright denied making any such statement. I considered Wright's
testimony to be the more probable. In this respect I credit her testimony
that, as reflected on the warnings themselves, she was informed that the
warnings would be placed in each employee's personnel file.
5 To the extent of a conflict between the testimony of Rickards, Mistie,
and Paige, on the one hand, and Wright on the other, as to what tran-
spired during the above sessions, I believed the testimony of Wright.
any of our policies, as pointed out earlier, we
employ an "open door policy." But those comments
to Mr. Marynowitz, and after hearing his explana-
tion of them, did present an attitude type situation
that normally doesn't exist. If an employee is dissat-
isfied, they will normally go back and discuss it fur-
ther with their supervisor or director.
However, after a meeting attended by Marynowitz,
Wright, Suitch and Personnel Administrator Ossip, it
was allegedly decided to take no further disciplinary
action at that time.
Nonetheless, according to Respondent's witnesses, on
Thursday, June 11, at approximately 3:30 p.m., the
Charging Parties were summoned to a meeting with
Marynowitz. At that time they were informed that as of
4 p.m. that day they would be terminated. According to
the testimony of Paige, Mistie, and Rickards, the sole
reason for the discharge communicated to them by Mar-
ynowitz was their having undermined supervision by the
comments they wrote on the warnings. Marynowitz con-
firmed that undermining supervision was among the
grounds for the terminations, and Supervisor Wright
elaborated that the undermining of supervision was
founded upon the reaction by the dischargees to their
warnings.
Based upon the foregoing, I find that consistent with
the allocation of proof responsibility set forth in Wright
Line, a Division of Wright Line, Inc., 251 NLRB 1083
(1980), affd. in part 662 F.2d 899 (Ist Cir. 1981), the
General Counsel has established prima facie that the pro-
testations concerning the warnings were a motivating
factor contributing to the ultimate discipline. 6 Hence, as-
suming that the employee conduct in that regard was
protected by Section 7 of the Act, "the burden will shift
to the employer to demonstrate that the same action
would have taken place even in the absence of protected
conduct." 251 NLRB at 1089. Thus, the stage is set for
the threshold question presented by Respondent's claim
that the terminations were prompted exclusively by su-
pervening misconduct on the part of the alleged discri-
minatees which took place on the morning of June 11.
In this latter regard testimony of Marynowitz reveals
that he arrived for work at approximately 8:45 on the
morning of June 11, and upon his approach to the de-
partment, "heard some laughing and talking." Continuing
on, he observed Paige and Mistie standing at the desk of
Rickards engaged in conversation. According to Mar-
ynowitz, when he was observed, the employees curtailed
their discussion, with Paige and Mistie, returning to their
nearby desks. He claims next to have checked the sign-in
sheet, discovering that all three were on the clock at the
time and had been since 8 a.m. He then went to Wright's
office "to find out what was going on .... " However,
6 Contrary to the assertions in Respondent's brief, the evidence out-
lined above reflects a sequence of events which tends strongly to warrant
an inference favoring the General Counsel as to the cause for discharge.
Absent a showing on the part of the defense that motivation was founded
upon other considerations the record would support an inescapable con-
clusion; i.e., that employee reaction to the warnings represented the sole
foundation for the discharges. Cf. Behring International, Inc. v. N.L.R.B.,
675 F.2d 83, 87 (3d Cir. 1982.)
398
PENNSYLVANIA COMPENSATION RATING BUREAU
when he found Wright, she indicated that she was just
coming out, having heard the talking, but had not done
so earlier because she was on the telephone. According
to Marynowitz this was the extent of his conversation
with Wright.
Wright attempted to corroborate Marynowitz. She ex-
plained that in the morning, she has many phone calls
from employees who either call in sick or to report late-
ness, etc. She claims to have been on the phone when
the three were gathered at Rickards' desk that morning
and talking. She states that she "couldn't get off the
phone at that time to say anything to them," but failed to
offer as to what was so important about the telephone
conversation that took priority over correcting the
laughter and talking, which as described by Marynowitz
and Wright created a disturbance in the overall work
area. Furthermore, although Wright indicates that she
talked to Marynowitz for a few minutes at the time, ex-
actly what was said in their conversation does not
appear in her testimony. It is the sense of her account
that any disruption to the workflow occasioned by the
alleged misconduct on that occasion would have been
for no more than "a few seconds." Though admittedly it
was her primary responsibility to abort such incidents,
she never approached the girls concerning it, or inquired
as to what they were discussing, why they were laugh-
ing, or why they were not at their work stations during
working hours. As shall be seen below, the whole inci-
dent as recapitulated by Respondent's witness struck me
as entirely improbable.
According to Marynowitz, upon leaving Wright, he
returned to his office "gathered up the warning slips
again and decided I would go talk to Mr. Suitch, and tell
him that I think the problem is continuing." Marynowitz
at no time on June 11 specifically discussed or even re-
ferred to the alleged incident of that morning in any con-
frontation with the employees. In any event, at the meet-
ing with Suitch, the latter decided to terminate the three
employees. Marynowitz next met with the three employ-
ees, in the presence of Wright at 3:30 p.m. He claims to
have told them that they were discharged because of
"violation of work rules; underminding [sic] the authori-
ty of the supervisor; and disrupting the workflow."
This testimony that Marynowitz referred to a "disrup-
tion of the workflow" was uncorroborated. In addition,
it is unclear, as to how Marynowitz, considering his lim-
ited discussion with Wright and taking account of the
fact that he did not speak directly to either of the three
employees, would have known whether they were
caught up in their work, behind, or whether such disrup-
tion occurred. Indeed, his observation was limited to a
few seconds. His explanation that he assumed that they
were disrupting the workflow because they were sup-
posed to be working and others were working did not
persuade. Wright's account fails to reveal any reference
to workflow disruption. According to her, the three were
informed that they were being terminated "because of
breaking the work rules; because of underminding [sic]
the supervisor." Wright testified that she was aware of
what Marynowitz meant by "underminding [sic] the su-
pervision," explaining, quite clearly, that this was in ref-
erence to the attitude manifested by the employees in
protesting their warnings. Her testimony cannot be rec-
onciled with the representation in Respondent's brief that
Marynowitz told the employees "that the reason for
their discharge was their continued violations of work
rules in the face of written warnings which misconduct
undermined the supervisor's authority."
Marynowitz was corroborated a bit more closely by
Suitch, who testified that it was his decision to terminate
the three employees. He testified that on the morning of
June 11, Marynowitz came to him, reporting the miscon-
duct he observed that morning. Suitch claims that he in-
quired of Marynowitz as to whether he was concerned
with "the behavior, the attitude, and whether or not he
could see fit to continue with the employees." According
to Suitch, Marynowitz responded that the incident was
disobedient to the supervisor's warning, was disruptive,
and reflective on other working people, and, hence, Mar-
ynowitz indicated "he did not see how we could contin-
ue to employ these people." 7
In the face of my ultimate disposition herein, determi-
nation of the issue of causation is unnecessary. Nonethe-
less, I am convinced that the severe measure adopted by
Respondent in treating with the Charging Parties was
critically, if not entirely, based on their protestations
concerning the warnings. In this respect, mistrust of Re-
spondent's witnesses runs so deep as to raise the possibil-
ity that the incident of June I I might have been a
wholly contrived and trumped up pretext. Particularly
incredible was the testimony afforded by Marynowitz.
His view that the employees would have been terminat-
ed even if they had accepted the warnings without inci-
dent pertained to decisive question. Yet it collided with
testimony by Wright that, at the terminal interview, his
stated reason for the discharge included a reference to
the dischargees' upbraiding of Wright for having issued
the warnings. In my opinion it was more than just coin-
cidence that Wright's testimony in this respect was at
least partially parallel to the analysis attributed to Per-
sonnel Director Ossip by Paige, Mistie, and Rickards.
Mistie and Rickards indicated that Ossip told them that
their discharges were predicated upon comments each
placed on the warnings. 8 My suspicion does not end
with this highly material conflict in Respondent's own
evidence. For the latter would have me believe that the
several discharges were motivated solely because the dis-
chargees had been caught talking twice. Suitch and Mar-
T Marynowitz testified that his recommendation at the time to Suitch
was "that these employees either be put on probation or be terminated."
Moreover, Suitch confirmed that the sole reason that Marynovaitz ap-
proached him on June 10 was because of his concern for the attitude
manifested by the inscriptions placed on the warnings by the employees.
and their verbal comments to Wright in the individual interviews. As he
conceded, the talking violations for which the warnings were issued at-
tempted to deal with a problem which was not unusual in the operation.
and hence would not alone have warranted intervention by the senior
vice president.
I Paige testified that Ossip indicated that she did not know why they
were fired, but went on to relate that she too would "be out on her ears"
if she had made a statement to her boss like that made to Wright This
version mitigates but does not squarely refute the accounts of Mistie and
Rickards. Ossip was not called and the foregoing was left to stand uncon-
tradicted. I find that Ossip at a minimum referred to the employee pro-
tests while discussing the reasons for the termination with the Charging
Parties.
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ynowitz could not possibly have known more. Indeed,
their specific knowledge would have been confined to
Marynowitz' observations concerning the alleged inci-
dent of June 11, a matter, which, as shall have been seen,
was hardly the subject of thorough investigation. Insofar
as this record discloses, neither inquired as to the cir-
cumstances prompting Wright's issuance of the June 9
warnings. Indeed after the June 10 meeting, Wright, the
primary source of information as to misconduct underly-
ing the warnings, was allowed no input in connection
with the discipline which followed. To effect discharges
on the basis of a known, second offense without further
inquiry as to the aggravated or nonaggravated nature of
the original offense is particularly suspect when one con-
siders the admission by Suitch that talking during work
hours was not an unusual phenomenon in Respondent's
operation.9 While doubt exists as to whether the three
women participated in a further breach of Respondent's
work rules on the morning of June 11, even giving Re-
spondent the benefit of the doubt in that respect, it is in
any event my conclusion, consistent with the Wright
Line test, that the General Counsel has made out a prima
facie case that employee reaction to the warnings was at
least an object of the decision to terminate and that Re-
spondent failed by credible proof to meet its burden of
demonstrating that said discipline would have inured had
these employees not engaged in such conduct.
The question remains as to whether such conduct was
protected by Section 7 of the Act. I find that this was
not the case. Here, as in Continental Manufacturing
Corp., 155 NLRB 255 (1965), the employees separately
decided and acted individually in placing the comments
upon their warnings and in later addressing their supervi-
sor verbally as to their own personal feelings. The evi-
dence makes clear that the feelings and attitudes they
communicated were personally held. They did not
emerge from consultation with fellow employees or from
discussion between themselves. Clearly lacking was the
"concerted" quality that would be evident in the case of
individual grievances founded upon terms of a collective-
9 The Charging Parties denied involvement in the talking incident on
the morning of June II. Aspects of the account of Wright and Mar-
ynowitz tended to confirm their credibility in this respect. The first ques-
tion relates to why Marynowitz, if he were seriously concerned with the
infraction, failed to confront the employees or their supervisor to ascer-
tain whether the employees were caught up in their work, or whether
there was any justification for their apparent misbehavior or how this ap-
parent offense related to the misconduct for which they had been formal-
ly cited It is clear that despite his acknowledged deliberations between a
recommendation of "probation" or "discharge," Marynowitz, for unex-
plained reasons, spurned any investigation as to mitigating circumstances,
on the one hand, or the aggravated nature of any misconduct, on the
other. Wright, according to Respondent's own testimony, also behaved
curiously in that connection. Her testimony indicated that she remained
on the telephone, while the employees who, the day before, had castigat-
ed her for unfairness in issuing warnings, engaged in a further infraction
seemingly of the same type. Yet not only did Wright, on her own ac-
count, consider it more important to continue a telephone conversation,
without interruption than to confront the offenders, but she admittedly
failed to address the problem for the balance of the workshift. Her seem-
ing indifference or at least passive stance in this regard is difficult to rec-
oncile with her June 9 warning of additional discipline to the dischargees
in the event of further transgressions, and the fact that this new alleged
misconduct, having been discovered by Wright's superior, would have
reflected adversely upon herself, in terms of her ability to police the
worker area anld employees for whom she was immediately responsible.
bargaining agreements or where an individual invokes
governmental remedies established by legislators for the
protection of all workers. II Nowhere is it suggested that
the action of the dischargees herein was intended to lay
the ground work for future employee activity or enjoyed
support of any other employees. Nonetheless, the Gener-
al Counsel contends that, inasmuch as the conduct of the
dischargees would necessarily redound to the benefit of
coworkers, it should be deemed protected by Section 7
of the Act. This argument proves too much, for it is dif-
ficult to conceive of any employment gripe which lacks
the potential, some day, under some circumstances, to be
beneficial to some other employee. Indeed, no authority
is cited and independent research fails to reveal that indi-
vidual action might be converted to protected activity
solely on that basis. 12 More is required. 3 Consistent
therewith, the Board has stated that "Any indirect rela-
tionship to . . . rights of other employees . . . is too
remote to turn a personal protestation into a concerted
protest." National Wax Company, 251 NLRB 1064
(1980). Although the outer limit of the guarantees con-
ferred by Section 7 is often difficult to isolate, this case,
at best from the General Counsel's point of view, pre-
sents merely an illusion of concert. For the common ele-
ments were not the work of the employees, but rather
were inspired by the Employer's course of action. In
each instance, they were traceable directly to the fact
that warnings were issued at the same time, for the same
basic offense, and that dischargees did not like them and
individually decided to say so. Beyond that not a shred
of evidence has been presented to show interaction by
the employee with respect to the means or content of the
response. Instead, the latter assumed the form of individ-
ual protest, under conditions failing to reflect need for,
desire, or bent toward "mutual aid or protection." In
'O Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d
495 (2d Cir. 1967).
" Alleluia Cushion Co., 221 NLRB 999 (1975).
12 Liberty Men's Formals. Inc., 258 NLRB 1303 (1982); Jim Causley
Pontiac. Division Jim Causley, Inc., 253 NLRB 695 (1980), as well as Diag-
nostic Center Hospital, 228 NLRB 1215 (1977), lend no support to the
General Counsel's view in this respect. In each, the benefit to other em-
ployees was mentioned in the context of other, plainly concerted activity.
Thus, Liberty Men's Formal, Inc., and Jim Causley Pontiac both involved
activity by a dischargee before a local government agency charged with
administering protective labor legislation. In Diagnostic Center Hospital,
the dischargee wrote a letter to management protesting salary levels, an
act deemed protected even though the employee did not inform others of
her intention to write the letter. However, because this step was a by-
product of prior discussions with fellow employees evidencing their con-
cern and shared interest in the subject matter of the letter, it was con-
cluded that the former was acting concertedly on their behalf. As indicat-
ed, here there was no evidence of discussion between the dischargees.
And while the inscriptions each placed on her warning reflected a shared
point of view, this was a fortuity rather than inspired by any planned ini-
tiative. See also Hitchiner Manufacturing Co.. Inc., 238 NLRB 1253
(1978).
13 Thus, a written complaint to management which accused a supervi-
sor of unfair treatment did not alone constitute protected activity. Taber-
nacle Community Hospital, 233 NLRB 1425, 1427 (1977). Furthermore, in
Super Market Service Corp., 227 NLRB 1919, 1926-29 (1977), a letter
which referred to a management representative's bad treatment of "ev-
eryone who's worked with him" was deemed an unprotected expression
of a "personal gripe." Indeed, even an individual's request for a wage in-
crease has been deemed unprotected. See Meurer. Serafini and Meurer.
Inc., 224 NLRB 1373, 1377 (1976).
400
PENNSYLVANIA COMPENSATION RATING BUREAU
sum, it is concluded that the employee activity which is
the focal point of this complaint amounted to individual
carping, beyond the protected ambit of Section 7 of the
Act.
Even accepting the above view, remaining for consid-
eration is the General Counsel's alternative contention
that Respondent effected the terminations upon a "mis-
taken belief' that the dischargees were engaged in pro-
tected activity.' 4 This view lacks merit. It does not
appear that Respondent harbored any particular hostility
toward concerted, as distinguished from what it viewed
as intemperate, individual action on the part of its em-
ployees. And I am convinced herein that Respondent's
sensitivity towards conduct of the Charging Parties was
out of concern for the attitude they manifested, as indi-
viduals, toward a supervisor. The factual foundation for
arguments to the contrary supports no other conclusion
and at best is ambiguous. Thus, accepting that Respond-
ent might well have been in a position to conclude, had
it given the matter any thought, that the employee pro-
testations were sufficiently related to have been "concer-
tedly planned," this hardly establishes that it acted upon
such a belief in effecting the discharges. Just as vague is
the observation by the General Counsel that Respondent
failed to differentiate as between the dischargees in dis-
cussing their conduct and the possible discipline. For,
there was no need for these deliberations to be any more
specific. Each of the Charging Parties expressed here in-
dividual protest with language, argument, and tone that
was taken fairly by management as harsh and disrespect-
" Respondent contends that this coniention ought to be stricken, since
not specifically alleged in the complaint The complaint alleges that
Paige. Mistie, and Rickards swere discharged in violation of Sec 8(a)(l)
because they "engaged in the protected concerted activity of writing
comments in warning notices issued to said employees on or about June
9. 1981" Whether or not raised by the General Counsel. or first men-
tioned by me. it is plain that analysis of the facts from the standpoint of
"mistaken beliefr entails neither variance in motive, nor distinct cause of
actiion, but and in my opinion represents a theory which naturally arises
from the extant allegation Respondent knew or should have known that
it would he called upon to defend this and any other theory of unlawful-
ness that might be countenanced by the specific claim of proscribed
motive set forth in the complaint
ful to a supervisor as well as her authority. Accordingly,
this was a common denominator characteristic of the
conduct of each of the Charging Parties and it furnished
a proper reference for management to draw upon in ad-
dressing the problem. The evidence simply furnishes no
reasonable basis for inferring that Respondent acted on a
belief that the alleged discriminatees had engaged in ac-
tivity of a protested nature. i
In sum, it is concluded that the General Counsel has
failed to establish by a preponderance of the evidence
that the June 11 terminations of Paige, Mistie, and Rick-
ards were to any extent prompted by considerations pro-
tected by Section 7 of the Act. Accordingly, the com-
plaint alleging that their discharge violated Section
8(a)(1) of the Act shall be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent did not violate Section 8(a)(l) of the
Act by on June 1, 1981, terminating its employees Paige,
Mistie, and Rickards.
Upon the basis of the foregoing findings of fact and
conclusions of law'and the entire record in this proceed-
ing and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 6
It is hereby ordered that the complaint herein be, and
hereby is, dismissed in its entirety.
is Compare Mashkin Freight Lines. Inc.. 261 NLRB 1473, 1476 (1982).
er seq., where the concerted participation in a sickout was the employer's
stated reason for the termination of three truckdrivers. To the same effect
see .Vorthern Telecom. Inc.. 233 NLRB 1374, 1378. 1380 (1977); and Hen-
ning & Cheadle. Inc., 212 NLRB 776 (1974)
'6 In the event no exceptions are filed as provided by Sec. 10246 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.
401