Technicolor Government Services, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 383 (N.L.R.B. 1985)

TECHNICOLOR SERVICES
Technicolor Government Services , Inc. and Interna-
tional Alliance of -Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada , AFL-CIO. Case 12-
CA-11079
24 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 20 February 1985 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel filed a brief in support
of the judge's decision, and the Charging Party
filed a brief in answer to Respondent's exceptions
and in support of the judge's decision.
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, Technicolor
Government -Services, Inc., Kennedy Space
Center, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
i The Respondent contends that the conduct of the judge in this pro-
ceeding demonstrated bias and prejudice so as to deprive the Company of
its right to a fair and impartial hearing Upon a careful examination of the
judge's decision and the entire record, we are satisfied that the conten-
tions of the Respondent in this regard are without merit
Chairman Dotson finds it unnecessary to pass on the judge's discussion
of the obligations of a successor employer. -
Johnny L. Mahan, Esq., for the General Counsel.
James J. Loeffler, Esq. (Fullbright & Jaworski), of Hous-
ton, Texas , for the Respondent. '
Bernard M. Mamet, Esq., of Chicago , Illinois, for • the
Charging Party.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON , Administrative Law Judge.
This case was tried at Cocoa Beach, Florida, on Novem
ber 8 and 9, 1984.1 The charge was flied by International
Alliance of Theatrical Stage Employees and Moving Pic-
ture Machine Operators of the United States and Canada
i All dates are in 1984 unless otherwise stated.
383
(the Union) on February 27, and the complaint based on
the charge issued on August • 15. The complaint alleged
that Technicolor Government Services, Inc. (Respondent
or the Company) violated Section 8(a)(1) and ' (3) of the
National Labor Relations Act (the Act) by discharging
its employee Alfred Eugene Matthieu on February 21.
The sole issue presented is whether the conduct for
which Matthieu was discharged constituted, in the pecu-
liar circumstances of this case, "concerted activities for
the purpose of collective bargaining or other mutual aid
or protection" within the meaning of Section 7 of the
Act. I find that it did. -
On the entire record,' including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, Respondent, and the
Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place
of business located at Kennedy Space. Center,' Florida,
where it is engaged in the business of providing photo-
graphic and optical services for the United States Air
Force at the Air Force Eastern Test Range Facility.
During the 12-month period prior to the issuance of the
complaint herein, Respondent performed, services valued
in.excess of $50,000 for the United States Air Force. The
complaint alleges , Respondent 's answer admits, and I
find that Respondent has been at all material times an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The complaint fur-
ther alleges that-the Union is a labor organization within
the meaning of Section 2(5) of the Act. Respondent's
answer admits the allegation, and I therefore find the al-
legation established.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Material Facts
:'In the performance of its photographic services pursu-
ant to a contract with the Air Force, Respondent em-
ploys about 152 employees at several sites at or near
Kennedy Space Center. These sites are spread over a dis-
tance in excess of 30 miles not including outlying track-
ing sites where employees from time to time are utilized.
Respondent has for many years recognized two separate
locals of the Union as representative of its employees,
Locals 666 and 780. A single collective-bargaining agree-
ment is administered by both Unions with each Union
utilizing its own stewards based on work jurisdiction.
The latest collective-bargaining agreement between Re-
spondent and the locals is effective from February 15,
1982, through February 14, 1985. The Union has desig-
nated a number of stewards , including the alleged discri-
minatee herein, Matthieu, to assist in administering the
bargaining agreement and handling grievances arising
thereunder.
2 Respondent 's unopposed motion to correct the transcript dated De-
cember 27 , 1984, is granted and received in evidence as R Exh. 8.
276 NLRB No. 41
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In connection with the functions of the union stewards
on the job, the bargaining agreement contains the follow-
ing provision at section 16.4 which Respondent at hear-
ing indicated would be relied on in its defense in this
case:
The Stewards' union activities on Company time
shall fall within the scope- of the following func-
tions:
(A) To consult with an employee regarding the
presentation of a request, complaint, or grievance.
which the employee desires him to present.
(B) To investigate a complaint or grievance of
record after presentation to the appropriate supervi-
sor.
(C) To present a request, complaint, or grievance
to an employee's immediate supervisor in an at-
tempt to settle the matter for the employee or
group of employees who may be similarly affected.
(D) To meet by appointment with an appropriate
supervisor or other designated representative of the
Company, when necessary to adjust grievances in
accordance with the grievance procedure of this
agreement. The Company and the Union are in
agreement that the minimum amount of time'should
be spent in the performance of these duties.
And section 16.5 provides:
The steward before leaving his work station to,
perform any' of his functions herein set forth shall
request permission from his immediate' supervisor
and state the union business he desires to conduct
on Company time. Such permission shall be immedi-
ately granted unless it should substantially interfere
with operations. He shall report to his supervisor
upon completing each mission.
By all record accounts, Respondent and the `Union
have enjoyed a good bargaining relationship for about 20
years, and it appears that neither had filed charges with
the Board against the other prior to the charge which
serves as the predicate for the litigation herein. This rela-
tionship has endured notwithstanding- the fact that Re-
spondent, pursuant to the Service Contract • Act,. 41
U.S.C. § 351, as- amended, must undergo recompetition
every -3 to 5 years in order to retain its contract with the
Air Force for the services it provides. The recompetition
is initiated by a Government issued "request for propos-
als" which, in effect, solicits proposals from contractors
(including- Respondent) for bids for future performance
of Respondent's work., Respondent was scheduled to un-
dergo recompetition in 1984, and it is within the context
of this recompetition. that the alleged unfair labor prac-
tice herein arises. •
In contemplation of the upcoming. recompetition and..
desirous of obtaining some concessions -from-the Union
which could give Respondent a better position in such
recompetition, Respondent's- vice president and general
manager Harry Van Riper on February 21 telephoned
Andrew Younger, a representative of the Union and a
business manager for Local-780, to discuss a meeting for
the purpose of early negotiation of the collective-bar-
gaining agreement . There is little dispute between these
two men about what transpired in this telephone conver-
sation or others between them on the same day. Accord-
ing to Van Riper who testified for Respondent, the first
call was around 8:15 a.m. After agreeing on a meeting
date, the conversation turned to a newspaper ad by Pan
American for employees in certain skills indicating that
that the -company was going to compete against Re-
spondent in the "recompetition." Younger responded
that that reminded him that he had to get employment
applications out to his members (Respondent's employ-
ees) to be completed and delivered to the bidders. Van
Riper protested that that would help his competitors, but
Younger replied that they had to do this since a competi-
tor, if awarded the contract, would not consider hiring
the union people if they had no applications in. Van.
Riper protested that it would give a competitor an ad-
vantage by being able to satisfy the Government which
was interested in continuity that the competitor would
be able'to continue contract work with the incumbent's
employees. Younger, who ' was -in a hurry to conclude
the conversation in view of a scheduled out=of--town ap-
pointment, attempted to placate Van Riper by telling
him that Younger would discuss the matter with Bernard
Mamet , the Union's counsel, and then would discuss it
further with Van Riper. The conversation ended.
Van Riper was nevertheless not placated and a few
minutes later called Younger back and told him he did
not think the completion of employees' applications for
competitors was a good idea. Younger responded that he
would guarantee that nothing would be done with the
applications and--that - they would - not - be • turned in to
competitors until they talked further. -
Around noon the same day,` Van Riper telephonically
talked with his superior, Respondent's president, about
the Union's securing employee applications for competi-
tors. The president shared Van Riper's view that such
applications were not in the best interests of Respondent,
and suggested to Van Riper that he call Mamet. Van
Riper testified he telephoned Mamet around 1 p.m., ad-
vised him of the conversation with Younger, and object-
ed to the Union's collection of employee applications for -
competitors. Mamet explained * there were some gray
legal areas involved in these matters,3 and referred to the
a As further explained in its brief, the Union , by having its members
sign applications for employment by Respondent 's competitors, was seek-
ing not only to ensure continued employment for its members should Re-
spondent be uiisuccessful in the recompetition but also to increase the
chances of union recognition by any successful bidder. Further, if a suc-
cessor to Respondent had the applications of all Respondent 's employees'
in hand, it would be more difficult for the successor to set the initial
terms of employment of these employees without first bargaining with
the Union . In this regard , the Union had recently , been involved in suc-
cessful litigation before a Board administrative law judge in a case having
to do with another contractor at the Kennedy Space Center and the con-
tractor's attempt to unilaterally set initial terms and conditions of employ-
ment in the face of employment applications by a malonty - of a predeces-
sor's employees . See E G & G Florida, Inc, JD-218-84 (1984) Van Riper
admitted in his testimony that Mamet in explaining the Union 's position
on the applications alluded to both the E G & G case and Boeing Co Y.
Machinists, 351 F.Supp 813 (D C M D 1972), affd 504 F 2d 307 (5th Cir
1974), which had to do with recognition and bargaining obligations of a
Continued
TECHNICOLOR SERVICES
Union's desire not to, put its "eggs all in one basket."
Van Riper conceded that Mamet stated that the Union
was not interested in severing any relationships with Re-
spondent. The conversation concluded, according to Van
Riper, with Mamet's assertion that he would talk to
Younger about the matter.
In the meantime, Younger, who had learned around
February 10 of the recompetition and who had ascer-
tained that RCA, Pan American, Dyna Electronics,
Raytheon, and h 'G & G were possible bidders on Re-
spondent's contract, directed his secretary to have the
employment applications of Raytheon, received by him
on February 18, delivered to the Union's stewards on
Respondent's job with instructions for the stewards to
distribute the applications to Respondent's- employees for
completion and return to the Union. The instructions to
the secretary, were carried out the morning of February
21, with the applications distributed to the stewards
through Respondent's interfacility mail. It is undisputed
that Younger-in his conversation with Van Riper on that
morning did not tell Van Riper that this was going to be
done.4
Younger, in his testimony for the Charging Party, re-
lated that it was his practice to'closely follow the recom-
petition procedures. On learning of requests for propos-
als,-he arranges to attend and does attend bidders' con-
ferences where he advises the bidders of the fact that a
job is "union" and distributes to bidders copies of the
Union's contracts. He also obtains employment applica-
tion forms from prospective bidders as he did herein, has
them completed by incumbent employees, and returns
them to the bidder. All actions in this regard are de-
signed to cause or; encourage the prospective bidder to
make an early commitment that the bidder will hire a
majority of the incumbent's employees if his bid is suc-
cessful.
Van Riper testified that around 2:15 p.m. on February
21, he was' advised by Respondent's motion picture ^ su-
pervisor Ed Graf that Graf had picked up some mail and
packages at a mail- drop and a large unsealed envelope
addressed to Local 780 Steward Zan Burton at the
motion picture lab had fallen open revealing a number of
Raytheon applications. Graf asked for instructions and
Van Riper told him to-go ahead and deliver the envelope
sealed to Burton but to tell Burton that if he or any
other steward or anybody else distributes "competitor
employer applications, they are going to be fired." That
Graf followed such instructions was evidenced by a tele-
phone call from Burton to Van Riper about 15- minutes
later in which Burton stated he had gotten Van Riper's
message loud and clear and.that as a manager Van Riper
"didn't have much choice." Van Riper further testified
that about this same time he telephoned Larry Lovett,
chief.steward for Local 666, and gave Lovett the same
successor employer in the absence of hiring a majority of a predecessor's
employees Van Riper further admitted that he was personally familiar
with the E G & G case since he had attended portions of the hearing
before the judge in that case in December 1983
4 Contrary to assertions in Respondent's brief, there is no evidence to
establish that Younger purposely did not tell Van Riper that this was
going to be done
385
message given Burton. He likewise telephoned Supervi-
sor Jake McCombs and conveyed the identical message.
B. The Discharge of Matthieu
Matthieu had been employed by Respondent for ap-
proximately 20 years at the time of his discharge on Feb-
ruary 21, and was second on Respondent's employee se-
niority list. He worked as photo repair technician in'
building 44410 under the supervision of Paul Douglas, an
assistant supervisor at 'the time. Respondent conceded
herein that Matthieu was a good employee and that Re-
spondent found no fault with Matthieu's work.
Matthieu was a member of Local 780, was a steward
for the Union _in building 44410 at the time of his dis-
charge, and was, responsible for administering the bar-
gaining agreement for an employee group in the build-
ing. According to Matthieu's testimony, he had not prior
to his discharge encountered any difficulty from Re-
spondent in connection with the performance of his
duties as a steward. Respondent, through counsel at the
hearing, conceded that Matthieu had engendered no ani-
mosity from Respondent in the performance of his stew-
ard duties prior to February 21.
It is undisputed that around -9:30 a.m. on February 21,
Matthieu received a telephone call at his place of work
from Younger's secretary telling him that she was send-
ing him employment applications to be distributed to the
membership. She asked that he pass them out to the
people in his building with instructions that they be com-
pleted and returned as soon as possible. A short time
thereafter, Matthieu received approximately 20 blank
Raytheon applications in the interfacility mail. Accord-
ing to the uncontradicted and credible testimony of
Matthieu, there were some additional employees working
at the limited space at his workbench that day, and all
the repairmen could not work -at the bench at the same
time. Thus, at times between 9:50 and 10:30 a.m. when
bench space was not available to him, Matthieu went to
other. portions of the building to distribute Raytheon ap-
plications telling employees to complete them and return
them to him as soon as possible. While he had not asked
for or otherwise obtained supervisory permission for the
application. distribution, Matthieu made no attempt to
hide what he was doing from his superiors. In fact,
Matthieu gave an application to employee Shirlene Tur-
byville while within sight of Supervisor Douglas who
admittedly saw the transaction but was unaware of the
nature of it.
Turbyville testified for Respondent relating that short-
ly after Matthieu left her, and thinking that it might be
improper for her to have the Raytheon application, she
approached Douglas and asked him if it was all right to
have it. According to Douglas' uncontradicted and cred-
ible testimony, he told Turbyville he had not seen it
done before and he would check with upper manage-
ment on the matter. Sometime after lunch, he inquired of
his superior, Field Operations Manager P. C. Bamforth,
about the. matter.. According to. Van Riper's testimony,
Bamforth advised. him around 3:15 p.m. that Matthieu
had been handing out applications for Raytheon. Van
Riper directed that Matthieu be sent to his office.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Matthieu testified he received the message to report to
Van Riper s office about 3 20 p m Only 10 minutes earli
er Matthieu had received a telephone call from Mike
Hackbarth union steward for Local 780 in the still pic
ture lab who told Matthieu of a call from Burton relay
ing Van Riper s discharge message
It was Matthieu s testimony that when he went into
Van Riper s office Van Riper in the presence of Oper
ations Manager Ed Bowker said Gene what is this I
hear that you are passing out applications in mass?
Matthieu replied that he did not know what he meant by
mass but admitted that he had distributed applications
to the employees of Respondent for whom Matthieu was
steward Van Riper angrily responded that he talked to
Younger and Mamet and they were not going to start
this crap He thereupon directed that Matthieu be fired
Matthieu protested that he did not know anything about
a rule about the applications until around 3 10 p in
and he had passed out the applications that morning
Van Riper responded that maybe next time Matthieu
would think Matthieu related that Van Riper did not
state an exact reason for the discharge but Matthieu was
subsequently given a letter stating he was terminated
for cause
Van Riper s testimony is similar but not identical to
that of Matthieu regarding the discharge interview
However Van Riper s testimony suggests that he an
nounced Matthieu s discharge before ascertaining that
Matthieu had distributed the applications on worktime
According to Van Riper after announcing the discharge
decision he told Matthieu that he could not stop Matth
ieu from taking applications on his own time if competi
tors open up offices or have off premise facilities for
taking applications but he could stop Matthieu from
doing it on my time
C Arguments of the Parties
The General Counsel takes the position that because
Matthieu was following union instructions his activity
was concerted and meets the test supplied by the Board
in Meyers Industries 268 NLRB 493 (1984) requiring
that to be concerted an activity must be engaged in by
a representative on behalf of a group or engaged in
with or on the authority of other employees Moreover
the activity was protected under the Act because it was
in the legitimate interests of the Union and employees to
preserve their jobs In support of this proposition the
General Counsel relies substantially on Boeing Airplane
Co 110 NLRB 147 (1954) enf denied 238 F 2d 188 (9th
Cir 1956) Further in taking this position the General
Counsel notes that the Supreme Court stated in NLRB v
Eastex Inc 347 U S 556 565 (1977) employees do not
lose their protection under the mutual aid or protec
tion clause when they seek to improve their lot as em
ployees through channels outside the immediate employ
ee employer relationship Although conceding that
Matthieu s actions may not have been in Respondent s
best interests such actions were not disloyal in the sense
of constituting a direct attack intended to destroy Re
spondent s business the General Counsel contends Pro
ceeding from the premise that Matthieu s action was oth
Matthieu did not lose that protection simply because the
activity in issue took place on worktime In making this
argument the General Counsel relies on the absence of
any rules by Respondent against distribution or solicita
tion on worktime and evidence that Respondent had pre
viously allowed certain distributions and solicitations on
worktime Moreover the General Counsel points out
that Respondent only formulated its rule against the ap
plication distribution after Matthieu had passed them out
and then applied it retroactively to accomplish Matth
ieu s discharge
The Union s position in its brief generally follows that
of the General Counsel More specifically in relation to
the protected activity issue the Union clamis that its in
terests in the application distribution were not inimical to
that of Respondent On the contrary it asserts that its in
terests lay in having Respondent retain its contract with
the Government for only if this occurred could the
Union be assured that the employees would retain their
benefits under the collective bargaining agreement with
Respondent A successor could not be compelled to hire
Respondent s employees or to assume Respondent s col
lective bargaining agreement 5 While a successor em
ployer under the Service Contract Act supra could not
change the employees wage rates paid by the predeces
sor the employees risked the loss of other important
contractual benefits such as seniority Further at risk
was the substitution of Respondent with another employ
er whose relationship with the Union might not be as
cordial as that enjoyed by the Union and Respondent
during past years
Along the same line and in further argument that the
Union s action with respect to the applications was not
antagonistic to Respondents position the Union con
tends that competitors received no special edge or bene
fits against Respondent by virtue of the applications and
claims that the applications gave the competitors far less
information than that received by them through the
open book Government bidding procedure In short it
is contended that Respondent incurred no harm by the
Union s action herein as carried out by Matthieu and
Matthieu therefore should not berobbed of the protec
lion of the Act
Respondent predictably argues that Matthieu s conduct
was not in any respect protected and rather charac
terizes such conduct at various points in its brief as rep
rehensible harmful injurious disloyal indefensible and
detrimental In asserting this defense Respondent claims
that Van Riper had reasonable and sincere fears that the
competitor applications would adversely affect Respond
ent s ability to perform its contract with the Government
before during and after the competitive bidding process
Thus for example, the applications would allow a coin
petitor to entice Respondents highly skilled employees
away through lucrative employment offers at other loca
tions even if the competitor was unsuccessful in the con
tract bidding process Further it could put a competitor
in a better position to assuage a Government concern
about operation continuity subsequent to the competition
erwise protected the General Counsel argues that 6 See NLRB v Burns Secunty services 406 U S 272 (1972)
TECHNICOLOR SERVICES 387
by allowing the competitor to claim it had employee ap-
plications and would hire incumbent employees. Re-
spondent argues finally in this regard that the employ-
ment applications would, provide advantageous informa-
tion to a competitor about Respondent's operations rela-
tive to manning and job content which would enhance
the- competitor's ability to, better. formulate technical as-
pects of its bid.
Contrary to its apparent position taken at the hearing,
Respondent in its brief expressly disavowed any defen-
sive reliance on section 16.4 and 16.5 of the bargaining,
agreement, supra, concluding that the agreement seems
to apply only when a steward leaves his work station to .
investigate an employee complaint or handle a grievance.
But in response to evidence presented by the General
Counsel regarding Respondent's toleration of other
worktime union activity and, distributions, Respondent
contends that any such activity was isolated, infrequent,
and de minimis and that, in any event, such activity fell
into a different category than Matthieu's which was
-harmful and injurious to Respondent.
Respondent . takes the position that Matthieu's dis-
charge resulted from the fact that the activity took place
on worktime. Nevertheless, Respondent relying on the
court's decision in Boeing Airplane Co., supra, contends
that even if Matthieu's activity had not taken ,place on
worktime,'it still would have been unprotected under the
Act. Moreover, citing NLRB V. General Indicator Corp.,
707 'F.2d 279 (7th Cir. 1983), Respondent contends the
absence of a work rule specifically prohibiting Matthieu's
conduct does not serve to preclude the legality of the
discharge here since Matthieu's activity was deemed iii-
jurious to Respondent. Lastly, based on its view of the
evidence, Respondent asserts that the General Counsel
has failed to establish a prima facie case, and renewed in
its brief its motion, initially made and denied at the hear-
ing, that the complaint herein be dismissed.
Conclusions
In light of the long and generally cordial relationship
between the parties herein, it is unfortunate that they
find themselves involved in the instant litigation., And
even more unfortunate is the situation of Matthieu in
view of his long and admittedly good service to Re-
spondent. Calmer and less precipitous action by Van
Riper and better communication between the parties
would in all likelihood have avoided the necessity for
this litigation and promoted the continuation of a harmo-
nious relationship.6 However, the precipitous nature of
Respondent's discharge of Matthieu does not serve to re-
solve the issue presented for precipitous action is rele-
vant only in establishing a pretextual basis for a dis-
charge. Pretext is not an issue here for Respondent
admits the basis of the discharge and no dual motivation
was involved. • Outside the context of pretext consider-
ations, the harshness of Respondent's disciplinary action
is not a matter for Board concern assuming that the im-
6 That the discharge of Matthieu adversely impacted on the bargaining
relationship is demonstrated by the subsequent failure of the parties to un-
dertake serious negotiations on Van Riper 's early contract reopening re-
quest.
position of some degree of discipline is appropriate and
not unlawful. See, e.g., Terry_ Poultry Co., 109' NLRB
1097-(1954).
Addressing the merits of the case, and contrary to a
suggestion in Respondent's' brief that Matthieu's action
did not constitute concerted activity because' many em-
ployees and stewards did not know the purpose of the
competitor applications , I have little trouble concluding
that Matthieu was engaged in union and concerted activ-
ity. Matthieu was acting as a union steward pursuant to
instructions of the Union and consistent with the Union's
belief that the completion of the applications was in the
best interests of the employees represented. A union has
a duty to employees it represents to assist them- in mat-
ters related to job security. Clearly, as a steward, Matth-
ieu was acting as a representative of a group within the
test for concerted activity set forth in Meyers, supra.-
Fur-ther, in accordance with the Meyers test, Matthieu was
acting on, authority of the bargaining representative and,
therefore, was acting pursuant to authority of "other em-,
ployees." And there can be no dispute that Van Riper
was aware of the concerted nature of Matthieu's con-
duct, for he knew Matthieu was acting in his stewardship
capacity and, based on Younger 's and Mamet's remarks
to him,"he knew that the Union intended to have em-
ployees complete the competitor applications in order to
insure to the greatest extent possible the employees' job
security. .
The issue of whether Matthieu's activity, even if con-
certed, was protected under the Act is more tedious and
less easily resolved. Citation of authority is unnecessary
to confirm that not all employee concerted activity is
protected under the Act. As the Board said long ago in
Underwood Machinery Co., 74 NLRB 641 at 646 (1974),
"We have never interpreted the Act to mean that it is
unlawful for an employer to discipline an employee for
any form of union or concerted activity, no matter how
indefensible." Employees who engage in certain activity
even though concerted but designed to injure their em-
ployer's business have been found to be without the pro-
tection of the. Act. NLRB v.. Electrical Workers IBEW
Local 1229 (Jefferson Broadcasting), 346.U. S. 464 ( 1953),
affg. 94 NLRB 1507 (1951 ). The loss of protection is not
inconsistent with but , rather , grows out of the purposes
of the Act which "seeks to strengthen, rather than to
weaken , that cooperation, continuity of service and cor-
dial contractual relation between employer and employee
that is born of loyalty to their common enterprise." Jef-
ferson Standard, supra at 472. Thus , an employer may
lawfully impose discipline for concerted employee activi-
ty which is disruptive or which impairs the maintenance
of discipline generally . See NLRB v. Blue Bell, Inc., 219
F.2d 796 , 798 (5th Cir . 1955). See also Southwestern Bell
Telephone Co.,- 200 NLRB., 667 (1972). Disrespectful
epipthets directed at employers even though uttered in
the context of concerted activity have been found unpro-
tected. 'Maryland Drydock Co. v. NLRB, 183 F.2d 538
(4th Cir . 1955 ). And defamation by employees of an em-
ployer 's product has likewise been found unprotected.
Texaco, Inc., 189 NLRB 343 (1971). Conduct which is
considered "disloyal" to the employer may also serve to
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remove the Act's protection . Jefferson Standard, supra. It
is axiomatic , however , that not every form of concerted
activity loses protection under the Act simply because it
may have an ultimate detrimental impact upon an em-
ployer . As the General Counsel 's brief points out, an em-
ployee's primary strike activity is normally regarded as
protected notwithstanding the fact that its purpose is to
cause an employer economic harm.
Whether an 'activity is protected must turn on the pe-
culiar facts in a given case , and protection may not be
stripped from employees simply because their activity
may include public criticism of an employer . Misercordia
Hospital Medical Center v. NLRB, 623 F.2d 808 (2d Cir.
1980). Such conduct and the "disloyalty" inherent in it
must be considered in the context of whether it was nec-
essary to legitimate employee ends . See Jefferson Stand-
ard, supra.
Research reveals no cases precisely on point with the
facts in the instant case . Both sides in this case cited
Boeing Airplane Co., supra . In that case , a Boeing em-
ployee was discharged for involvement with the union,
following the failure of the union and Boeing to agree to
terms on a new bargaining agreement and as a substitute
for strike action , in establishing a Manpower Availability
Conference designed to bring together various employers
and engineer employees of Boeing for the purpose of se-
curing other employment for such employees and en-
hancing the union 's position in bargaining with Boeing.
On these facts , the General Counsel issued a complaint
alleging that the discharge was unlawful inasmuch as the
employee 's conduct was protected under the Act. The
Board held that the employee and union 's action in con-
nection with the Conference presented only a conditional
threat that some of the company 's employees might
resign if the company did not meet the union's bargain-
ing demands and as such the activity was protected. In
so holding , the 'Board distinguished Jefferson Standard,
supra, on the premise that the conduct there found un-
protected involved a direct attack upon the employer
and its business unrelated to' any term or condition of
employment between the union and the employer. The
Board rejected any contention that the conduct of the
employee in Boeing was "indefensible" but rather con-
cluded that it was directed toward the legitimate and
protected ends of collectively broadening the employees'
opportunity for employment and lessening their depend-
ence on Boeing for employment . 110 NLRB at 151. Two
Board members dissented . The Court of Appeals for the
Ninth Circuit declined to enforce the, Board 's order in
Boeing finding that even if the employee's actions were
concerted under the Act, "the whole combination to de-
stroy or damage the business of the employer would
seem collectively disloyal and illegal ." 238 F . 2d at 193.
In short, the court , adopting the view of the dissenting
Board Members, viewed the union's action and that of
the employee as having "the purpose of causing the per-
manent severance of the - employment relationship," and
that in light of that purpose such action was disloyal and
unprotected.
The nature of the Union 's activity and, to that extent,
Matthieu 's in the instant case is akin to that of the union
in Boeing, i.e., the activity looked toward employment of
the employees by another employer. Yet, the purpose of
the activity in each case is starkly different. Thus, in
Boeing, the union's activity involved was aggressive, dis-
ruptive, and damaging to the company's business. It was
designed to achieve these ends in order to enhance the
union's position at the bargaining table. By contrast, the
Union's action in distributing the competitor applications
in the instant case was purely defensive. In fact, -employ-
ment through the applications, in the Union's contempla-
tion, was to be conditioned upon Respondent's failure to
succeed itself in the recompetition. Moreover, the mere
fact that concerted activity looks toward employment by
another employer does not rob such activity of protec-
tion. In QIC Corp., 212 NLRB 63 (1974), the Board
adopted the decision-of the administrative law judge that
a group of employees filing applications with a competi-
tor employer did not constitute "disloyalty" within the
meaning of any decided cases so as to make such- con-
duct unprotected under Section 7 of the Act.
In all respects the Union's interest here was in the con-
tinued employment of the employees by Respondent, not
the displacement of Respondent. And only if Respondent
was successful in the recompetition process could the
Union be assured that all its employees-members would
retain their employment. That the Union was desirous of
Respondent's success. in rebidding is evidenced by the
Union's willingness to an early reopening of bargaining
agreement negotiations at Respondent's request, which
negotiations, if successful, might serve to give Respond-
ent an "edge" in maintaining its Government contract.
Moreover, if those negotiations were successful (and in
view of the amicable bargaining history-between the par-
ties, there is no reason to believe they would have been
unsuccessful) they would have served to further solidify
the interests of the Union in Respondent's continuation.
with the Government contract. As suggested by the
Union's counsel at the hearing, an established and amica-
ble bargaining relationship, even if imperfect, is generally
to be preferred over the vicissitudes attendant to the cre-
ation of a bargaining relationship with an employer of
unknown character. The Union's willingness as related
by Younger to Van Riper on the morning of February
21, to withhold delivery of the completed applications to
any competitor until the two had gotten together to dis-
cuss the matter also reveals that the Union was not de-
termined to have Respondent replaced.
Nor, contrary to arguments of Respondent, does it
appear that submisson of employment applications of Re-
spondent's employees to competitors posed.such an obvi-
ous and substantial threat to Respondent's business as to
reveal unprotected motivations in the Union's action. As
both Younger and Van Riper testified, there competition
procedure is an open one with prospective bidders sup-
plied with a substantial amount of information about the
job requirements. The existence of union contracts and
employee wages and fringes are made known. All equip-
ment utilized under the contract is owned by the Gov-
ernment and is listed for the competitors with any ques-
tions concerning the equipment or other pertinent mat-
ters answered by the Government. Prospective bidders
are even given a full tour of the facility. Accordingly, it
TECHNICOLOR SERVICES 389
appears that competitors would learn little additional sig-
nificant information from applications submitted by Re- -
spondent's employees. And since the applications were to
be submitted to the competitors with utilization condi-
tional upon the competitors being successful, any risk to
Respondent that a competitor might siphon off Respond-
ent's skilled employees for employment at other locations
in the absence of an unsuccessful bid appears remote and
purely speculative. Moreover, the Union had "guaran-
teed" Van Riper that the applications would not be sur-
rendered to ' a competitor until Respondent had been
given an opportunity to discuss the matter and voice ob-
jections. Under these circumstances, there was no threat
of immediate harm to Respondent. I conclude Respond-
ent has not demonstrated that 'the Union's action with re-
spect to the competitor employee applications would
result in actual harm to Respondent, or that such action
would even pose a reasonable threat of harm, economic
or otherwise.
Considering the foregoing, I find that the Union's mo-
tivation in its actions, and consequently Matthieu 's since
he had no motivation apart from the Union's, was not
malicious or in any way calculated to undermine Re-
spondent's recompetition position. Indeed, if the Union
were inclined to undermine Respondent's position, it did
not need competitor employment applications to do so.
Knowing Respondent's operations, employee classifica-
tions, job content, and description, the Union could have
supplied a competitor with such information to the
extent it was not common knowledge, so the reliance on
employment applications for such information would
have been completely unnecessary. And it is clear in any
event that the distribution of the applications here did
not constitute a solicitation to quit nor was the distribu-
tion accompanied by a solicitation to quit which would
remove the Act's protection.' In sum, in the absence of
malicious intent, I conclude that Matthieu's conduct
herein did not lose protection under the Act as indefensi-
bly disloyal.
There remains the issue of whether Matthieu's conduct
was nevertheless unprotected because - it took place
during worktime or breached a legitimate workrule. On
a factual basis I am compelled to conclude that Respond-
ent was not concerned 'about the time of Matthieu's dis-
tribution as opposed to the fact of such distribution.
Thus, Van Riper's threat related to Graf around 2:15
p.m. for relay to Zan Burton was that if Burton "or any
other steward or anybody distributes other competitor
employee applications, they are going to be fired. And
Van Riper testified that he told union steward Lovett
that if any of his people handed out applications for
competitors they would be fired. In neither instance did
Van Riper limit his threat to distributions on worktime.
This coupled with Van Riper's own testimony indicating
that he announced the discharge of Matthieu before as-
certaining that the distribution occurred on worktime,
warrants the conclusion here reached that the time of
distribution was immaterial to Van Riper and that Matth-
7 In this respect , the case is distinguishable from the Board 's decision
in Clinton Corn Processing Co., 194 NLRB 184 (1971), where such solici-
tation was found to be unprotected
ieu would have been discharged even if the distributions
took place on nonworktime.8 It follows that if Matthieu's
conduct was otherwise protected, and I have found
above that it was, the discharge was violative of Section
8(a)(1) and (3) of the Act as alleged by the General
Counsel. I so conclude.
I would reach this same result even if I were to find
that the discharge was based on the fact that Matthieu's
distribution of the applications took place on worktime.
This is because Respondent admittedly had no rules in
effect specifically barring distributions or solicitations on
worktime. The only rule Respondent had was the one
imposed by Van Riper after the fact of Matthieu's distri-
bution of the applications. In addition, evidence was pre-
sented herein that reveals, and I conclude, that Respond-
ent followed a rather relaxed policy regarding union dis-
tributions on worktime.9 Under these circumstances, and
since Respondent does not now rely on section 16.4 and
16.5 of, the bargaining agreement as a defense herein, it
must be concluded, and I so conclude, that Matthieu was
breaking no announced employer rule at the time he was
engaged in the distribution of the applications. Accord-
ingly, his activity cannot; therefore, be found to be un-
protected due to breach of a reasonable employer rule
barring such activity.
As stated by the court in Caterpillar Tractor Co. v.
NLRB, 230 F.2d 357, 358 (7th Cir. 1956):
[T]he protective mantle of Section 7 [of the Act] is
tempered by the employer's right to exact a day's
work for a day's pay and to maintain discipline, and
does not reach activities which inherently carry
with them a tendency toward, or likelihood of, dis-
turbing efficient operation of the employer's busi-
ness.
Thus, even in the absence of an announced rule against
the specific conduct here involved or against employee
distributions and solicitations generally on worktime, an
employer is free to take remedial action in order to main-
tain discipline, production, and efficient operations.
However, in such cases, it is not enough to show that
the union activities of the employee disciplined took
place on worktime. Rather, the employer must show that
the employee's activities were actually disruptive or
tended to interfere with efficient operations. Cf. Green-
8 Substantially for these same reasons I credit Matthieu where his testi-
mony contradicts that of Van Riper concerning the discharge interview
Moreover , Matthieu , who impressed me as a candid witness with a vivid
recall of the discharge interview, attributed no comment to Van Riper
inquiring about , or demonstrating concern for, whether the distribution
took place on worktime
8 In reaching this conclusion 1 find it unnecessary to outline all the evi-
dence regarding such distributions and solicitations presented in testimo-
ny of witnesses for the General Counsel , some of which was contradicted
by Respondent 's witnesses I am not persuaded that the distributions and
solicitations related by the General Counsel's witnesses were as wide-
spread or frequent as they would have me believe Nevertheless, that
some instances of union distributions took place on worktime was con-
ceded by Respondent 's supervisors Jake McCombs, Jim Collins, and Paul
Douglas, even though such activity was claimed to be sporadic and infre-
quent Douglas candidly admitted that he knew union dues were collect-
ed by stewards on worktime and receipts distributed No disciplinary
action was ever taken
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tree Electronics Corp., 176 NLRB 917, 919 (1969). For
several reasons, I am not satisfied that Respondent has
here shown Matthieu's actions disrupted, or tended to
disrupt, his own or the work of other employees. First,
Van Riper conducted no inquiry into whether Matthieu
had interfered with his own work or that of other em-
ployees before he decided on and effectuated Matthieu's
discharge. This was in keeping with his announcement
that any employee distribution of competitor applications
would-result in discharge. Second, Matthieu's uncontra-
dicted and otherwise credible testimony was that he dis-
tributed the applications only during the time he did not
have access to the test bench where he could perform his
work. Thus, the distributions did not interfere with his
own work. Third, there'was no evidence that he actually
interfered with the work of other employees. Although
the record shows that Turbyville questioned-Supervisor
Douglas about the propriety _of the application given her.
by Matthieu, there was no indication that their receipt of
the application. or her inquiry of. Douglas was disruptive.
of her work. Her work station was adjacent to or near
that of Douglas. Fourth, Douglas evidenced no concern
about whether Matthieu's conduct was disruptive. That
Matthieu's,action was not disruptive or obviously inap-
propriate is revealed by Douglas' inability to give Turby-
ville an immediate response about the propriety of
Matthieu's conduct. _
In summary, I conclude that the General Counsel has
established by- a -preponderance of the evidence that
Matthieu was engaged in union'-and protected concerted
activity under the Act, and that such activity under the
peculiar. circumstances of this case did not lose its pro-
tection as being so disloyal to.Respondent as to be inde-
fensible. Accordingly, and because Respondent has not
established that Matthieu breached any employee rules of
conduct justifying his removal from the Act's protection
or that Matthieu's discharge was otherwise necessary to
maintain discipline and prevent disruptions to its orderly
operations, I conclude Respondent violated Section
8(a)(3) and (1) of the Act as alleged in discharging
Matthieu. It follows from- this conclusion that Respond-
ent's motion to dismiss the complaint renewed in its brief
lacks merit and must be denied.10
CONCLUSIONS OF LAW -
1. Respondent Technicolor Government Services, Inc.
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act:
2. The Union, International Alliance of Theatrical.
Stage Employees and Moving Picture Machine Opera-
tors of the United States and Canada, AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily discharging Alfred. Eugene
Matthieu on February 21, 1984, Respondent engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and ( 1) and Section 2(6) and
(7) of the Act. -
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
sigiied to effectuate the purposes of the Act.
Having found that Respondent discriminatorily' dis-
charged Alfred Eugene Matthieu, it will be recommend-
ed that Respondent be" ordered to reinstate Matthieu and
make him whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from date of his dis-
charge to.the date of a proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977).11 Con-
sistent with the Board's decision in Sterling Sugars, 261
NLRB 472 (1982), it will also be recommended that Re-
spondent be required, to expunge from its files any refer-
ence to the discharge of Alfred Eugene Matthieu and
notify him in writing that this has been done and that
evidence of the unlawful 'discharge will not be used for
future personnel action against him.
The Union's request in its brief for ' an award of its
costs and expenses against Respondent based on Board
principles expressed in Autoprod, Inc., 265 NLRB 331
(1982), and Tiidee Products, 194 NLRB 1234 (1972), is
denied. Respondent's position in this case was - not so
frivolous as to warrant' a Tiidee-type award nor has Re-
spondent displayed a long history of intransigence and
violations of the Act so as to justify an award under Au-
toprod.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed12
• . -
ORDER
The Respondent, Technicolor Govern ment ' Services,
Inc., Kennedy Space Center, Florida, its officers, agents,
successors, and assigns, shall
1. Cease and desist from -
(a) Discharging or otherwise discriminating against
any employee for involvement in activity on behalf of
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada, AFL-CIO or any other labor organi-
zation.
(b) In any like or related manner interfering, with; re-
straining, or coercing employees in the exercise of the .
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. -
(a) Offer Alfred Eugene Matthieu immediate ' and full
reinstatement to his former job or, if that job no longer
11 See generally Isis Plumbing Co, 138 NLRB 716, 716-721 (1962)
10 Although mooted by this result, Respondent 's request in its brief for 12 If no exceptions are filed as provided by Sec 102.46 of the Board's
reimbursement for costs and attorney 's fees would in any event have to Rules and Regulations , the findings, conclusions, and recommended
be denied as untimely 'for not having been filed in accordance with the Order shall, as provided in ' Sec. 102.48' of the Rules, be adopted by the
provisions of the Equal Access to Justice Act, 5 U.S.C. § 504 and Sec. - - Board and all objections to them shall be deemed waived for all pur-
102.143 of the Board 's Rules and Regulations . poses.
TECt-INICOLOR SERVICES
exists to a substantially equivalent position without prej
udice to his seniority or any other rights or privileges
previously enjoyed and make him whole for any loss of
earnings and other benefits suffered as a result of the dis
crimination against him in the manner set forth in the
remedy section of this decision
(b) Remove from its files any reference to the unlawful
discharge of Alfred Eugene Matthieu and notify him in
writing that this has been done and that the discharge
will not be used against him in any way
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facilities at Kennedy Space Center for
ida copies of the attached notice marked Appendix 18
Copies of the notice on forms provided by the Regional
Director for Region 12 after being duly signed by Re
spondent s authorized representative shall be posted by
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered defaced or cov
ered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
19 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice readmg Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
391
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 organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for mutual aid or protection
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT discharge or otherwise discriminate
against any of you for involvement in activities on behalf
of International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the United
States and Canada AFL-CIO or any other labor organs
zation
WE WILL NOT in any like or related manner interfere
with restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Alfred Eugene Matthieu immediate
and full reinstatement to his former job or if that job no
longer exists to a substantially equivalent position with
out prejudice to his seniority or other rights and pnvi
leges previously enjoyed and WE WILL make him whole
for any loss of earnings and other benefits resulting from
his discharge less any net interim earnings plus interest
WE WILL notify Alfred Eugene Matthieu that we have
removed from our files any reference to his discharge
and that the discharge will not be used against him in
any way
TECHNICOLOR GOVERNMENT SERVICES
INC