Tyler Business Services, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1981

256 N.L.R.B. 567 (N.L.R.B. 1981)

TYLER BUSINESS SERVICES, INC. 567
Tyler Business Services, Inc. and Brian A. Powers.
Case 5-CA-11813
June 15, 1981
DECISION AND ORDER
On November 26, 1980, Administrative Law
Judge John M. Dyer issued the attached Decision
in this proceeding. Thereafter, the Charging Party
and the General Counsel filed exceptions and briefs
in support thereof, and Respondent filed an an-
swering brief. '
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent did not violate Section 8(a)(1) and (3)
by discharging employee Burton Lane. We dis-
agree for reasons that follow.
Early in August 1979, 3 Lane contacted Washing-
ton Specialties and Paper Products, Local 449,
about organizing Respondent's employees. Between
August and December, Lane spoke with several
employees about unionizing Respondent's employ-
ees to improve certain working conditions, includ-
ing job security and lack of hospitalization benefits
for part-time employees. Lane decided to wait until
after Christmas "to make the push" to collect au-
thorization cards.
Sometime in the fall, Lane dated Kim Smith, the
editor of one of Respondent's most important cus-
tomers. 4 During a conversation with her,5 Lane, at
that point a full-time employee himself, complained
to Smith about the termination of a part-time em-
ployee named Lynn, stating that Respondent treat-
Subsequently, the General Counsel filed a motion to strike certain
references in Respondent's answering brief. In view of our disposition of
the case, we find it unnecessary to address the issues raised by the Gener-
al Counsel's motion.
2 Because of our disposition of this case, we find it unnecessary to pass
upon the Administrative Law Judge's discussion of the "small plant doc-
trine." We also find it unnecessary to rely on his surmise as to the mean-
ing of certain statements attributed to General Manager Harris by em-
ployee Lane during a December 1979 conversation, which the Adminis-
trative Law Judge found did not occur.
The General Counsel and the Charging Party have 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 respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. 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 reversing his findings.
3 All dates hereinafter refer to 1979, unless otherwise indicated.
4Respondent is engaged in the operation of a commercial job printing
shop.
I The Administrative Law Judge did not resolve whether this conver-
sation occurred in late August, as Lane testified, or in November, as
Smith recalled. We note that either date was subsequent to Lane's con-
tact with the Union.
ed part-time employees unfairly by not providing
them hospitalization benefits. In the same conversa-
tion, Lane also asked Smith whether she had heard
that Charles Tyler (Respondent's president) and
Kay Brackins (a vice president of the Company)
were having an affair and whether she believed the
rumor was true.
Subsequently, Smith repeated her conversation
with Lane to Brackins. In early December, Brack-
ins related the substance of Lane's remarks to
Tyler. On January 2, 1980, Tyler discharged Lane,
stating that he was doing so because Lane had
spread rumors about Brackins and himself, and be-
cause Lane had said that part-time employees were
treated unfairly.6
The Administrative Law Judge found Tyler
fired Lane for making the above-mentioned com-
ments to a customer of the Company. He found
that Lane was venting his frustrations when he
made the statements, and that the statements were
made with the intent to hurt Tyler and Brackins.
He concluded that Lane's statements were not
made in an organizing context nor with the intent
to help the Company's employees. Accordingly,
the Administrative Law Judge held that Respond-
ent, by discharging Lane for making the statements
to Smith, did not violate the Act.
We disagree with the Administrative Law
Judge's implicit legal conclusion that Lane's state-
ments were neither concerted nor protected activi-
ty. Lane's complaint-similar to complaints voiced
by Lane and other employees during their discus-
sions about the need for a union-that Respondent
treated Lynn and other part-time employees unfair-
ly by failing to provide them hospitalization bene-
fits directly concerns working conditions of em-
ployees. We are unable to agree with the Adminis-
trative Law Judge's statements that Lane's asserted
concern about working conditions of the Compa-
ny's employees was not articulated in an organizing
context nor intended to further the cause of em-
ployees. Clearly, it cannot be said that this con-
cern-expressed on behalf of employees other than
himself-was of a purely personal character.7 Fur-
thermore, an employee's complaint concerning
working conditions of employees is protected ac-
tivity. And it is elemental that Lane's statement re-
garding company benefits for part-time employees
I General Manager James Harris, who was present when Tyler dis-
charged Lane, testified that Tyler told Lane he was fired "because he
was spreading false rumors [about] him and Kay and saying that part
time people were treated unfairly "
7 See Datapoint Corporation, 246 NLRB 234 (1979), enforcement
denied 642 F.2d 123 (5th Cir 1981); Richboro Community Mental Health
Council, Inc., 242 NLRB 1267 (1979); .NL.R.B. v Sencore, Inc., 558 F.2d
433 (8th Cir 1977), enfg 223 NLRB 113 (1976); Carbet Corporation, 191
NLRH 892 (1971), enfd 80 LRRM 3054, 68 L.C 12,845 (6th Cir. 1972)
Tyler Business Services, Inc. and Brian A. Powers.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerned working conditions, and was thus pro-
tected activity.
Accordingly, we find that, as a matter of law,
Lane's complaint to Smith about Respondent's
treatment of part-time employees was protected
concerted activity. We further find, based upon tes-
timony of Respondent's agents (see, e.g., fn. 6
supra), that Respondent discharged Lane for engag-
ing in this protected concerted activity.
Respondent argues, however, that Lane's spread-
ing of rumors about an affair between Tyler and
Brackins fully justified the decision to discharge
him. For the following reasons, we find that Lane's
remarks concerning the affair do not constitute
conduct so outrageous as to render his otherwise
protected activity unprotected.
It is well established that an employee's protect-
ed activity does not lose the protection of the Act,
unless the manner in which the conduct was ex-
pressed renders his otherwise protected activity un-
protected. That an employee's preception of work-
ing conditions may have been incorrect is not suffi-
cient reason to remove the protected activity based
on those perceptions from the protection of the
Act. R. J. Liberto, Inc., 235 NLRB 1450, 1453
(1978). Nor does an employee's otherwise protect-
ed communication with a third party forfeit the
protection of the Act merely because part of the
communication might embarrass the employer, or
because the employer may dislike the employee's
choice of forum, unless the employee's statement
constitutes disparagement or vilification deliberate-
ly intended to impugn the employer's operations.
Allied Aviation Service Company of New Jersey, Inc.,
248 NLRB 229, 230 (1980); Community Hospital of
Roanoke Valley, Inc., 220 NLRB 217, 223 (1975),
enfd. 538 F.2d 607 (4th Cir. 1976). In determining
whether an employee's comments to a third party
constitute disparagement of an employer's oper-
ations, we have held that the truth of falsity of the
communications is not material to the test of their
protected character. The Patterson-Sargent Compa-
ny, 115 NLRB 1627, 1629 (1956).
Applying these standards to the instant case, it is
clear that Lane's statements did not exceed the
bounds of the protection of the Act. Our examina-
tion of the record fails to produce any evidence on
which to base a finding that Lane's concern about
the working conditions of part-time employees,
even if inaccurate, was expressed in such a way as
to deprive him of the protection of the Act. Nor
was Lane's spreading of the rumor (whether accu-
rate or inaccurate) of an affair, as Respondent
urges, so despicable as to constitute unprotected
disparagement of the Company. Lane's alleged of-
fensive remarks did not relate to the Employer's
product or operations. Further, Lane's remarks,
and the context in which they occurred, did not
display the requisite indicia to constitute a deliber-
ate intent to impugn the Company.8 No doubt an
employer may be embarrassed that a customer be-
comes privy to such personal, and perhaps inaccu-
rate, information. Nevertheless, we cannot condone
stripping an employee of his statutory rights be-
cause in the course of his protected conduct he
communicates information personally embarrassing
to the employer which is unrelated to the employ-
er's product.
Accordingly, we find that Respondent's defense
lacks merit because Lane's spreading of the rumor
was not so extreme as to deprive his otherwise pro-
tected remarks of the protections of the Act.
Thereafter, we conclude that, by discharging em-
ployee Lane, Respondent violated Section 8(a)(1)
of the Act.9
CONCLUSIONS OF LAW
1. Tyler Business Services, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. By discharging Burton Lane on January 2,
1980, Respondent violated Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
4. Respondent has committed no other unfair
labor practices.
THE REMEDY
Having found that Respondent engaged in cer-
tain unfair labor practices, we shall order it to
cease and desist therefrom and take certain affirma-
tive action which we find necessary to effectuate
the policies of the Act.
Having found that Respondent's discharge of
Burton Lane violated Section 8(a)(1) of the Act,
we shall order Respondent to make Lane whole for
any loss of earnings and other benefits that he may
have suffered by reason of Respondent's discrimi-
nation against him, from the date of his discharge
8 In fact, Smith testified that Lane was not being malicious at the time
he brought up the rumor, and that she had heard the rumor prior to her
conversation with Lane.
i Both the General Counsel and the Charging Party have excepted to
the Administrative Law Judge's failure to consider Tyler's pretrial affida-
vit an admission and to conclude that Lane was discharged for his union
activities in violation of Sec. 8(a)(3). Because of our finding that Re-
spondent discharged Lane for his protected concerted activity in discuss-
ing company personnel problems with Smith, and that the discharge was
therefore unlawful, we need not pass upon these exceptions and decide
whether the discharge also violated Sec. 8(a)(3).
-------
TYLER BUSINESS SERVICES, INC. 569
to the date of his reinstatement,' 0 computed in ac-
cordance with the formula stated in F. W Wool-
worth Company, 90 NLRB 289 (1950), with interest
computed in the manner set forth in Florida Steel
Corporation, 231 NLRB 651 (1977); see, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Tyler Business Services, Inc., Washington, D.C., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging an employee for engaging in
protected concerted activity.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action in order
to effectuate the policies of the Act:
(a) Make Burton Lane whole for any loss of
earnings and other benefits he may have suffered
by reason of the discrimination against him in the
manner set forth in the section of this Decision and
Order entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its plant in Washington, D.C., copies
of the attached notice marked "Appendix." 1
Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
'o The Administrative Law Judge states, and no party disputes, that,
subsequent to his termination, Lane accepted an offer of reinstatement.
II In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
MEMBER ZIMMERMAN, dissenting:
In agreement with the Administrative Law
Judge I would find that the alleged discriminatee,
Burton Lane, was not unlawfully discharged. Lane
while on a date with Kim Smith, a customer of Re-
spondent, asked Smith whether she had heard the
rumor that Respondent's president, Charles Tyler,
was having an affair with Respondent's vice presi-
dent, Kay Brackins. During the same conversation
Lane expressed the view that a part-time employee
had been terminated unfairly and also observed
that the discharged employee, like other part-time
employees, was denied hospitalization benefits. Re-
spondent discharged Lane for making the remarks.
I agree with the Administrative Law Judge that
these comments are not protected concerted activi-
ty. In particular as to Lane's statements concerning
part-time employees, which the majority find pro-
tected concerted activity because of the ongoing
organizing campaign, I note that the campaign un-
derway at the time the statements were made was
secret and the comments were obviously not made
in furtherance of that campaign. They were unpro-
tected expressions of personal views not intended
to further any employee cause. Since the comments
for which Lane was discharged are not protected
concerted activity, I find that the discharge was
not unlawful.
Therefore, I would dismiss the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge an employee for
engaging in protected concerted activity.
TYLER BUSINESS SERVICES, INC~~~~~~~~~~~~~~. 56
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL make Burton Lane whole for any
loss of earnings and other benefits he may
have suffered by reason of our discrimination
agaisnt him, with interest.
TYLER BUSINESS SERVICES, INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Brian A.
Powers, the Charging Party herein, filed a charge on
January 4, 1980,1 alleging that Tyler Business Services,
Inc., herein called Respondent or the Company, violated
Section 8(a)(l) and (3) of the Act by the termination of
Burton H. Lane and violated Section 8(a)(1) by various
statements.
The Regional Director issued a complaint on February
13, 1980, alleging that Respondent, through Vice Presi-
dent James Harris and Print Shop Supervisor James
Harvey, violated Section 8(a)(1) of the Act by threaten-
ing to lay off employees if they chose union representa-
tion and telling employees they would not be free to talk
to other employees if they chose union representation.
The complaint also alleges that President Charles Tyler
told an employee that he was to be discharged for en-
gaging in union activities. The complaint also alleges that
Respondent violated Section 8(a)(3) and (I) of the Act
by discharging Lane on January 2, 1980, and later of-
fered him reinstatement by its February 11 letter which
he accepted.
Respondent's timely answer admitted the commerce
and service allegations, the status of Local 449, Washing-
ton Printing Specialties and Paper Products Union, an af-
filiate of the International Printing and Graphic Commu-
nications Union, AFL-CIO, herein referred to as the
Union, as a labor organization but denied that it had vio-
lated the Act in any way. Respondent admitted that
Tyler, Harris, and Harvey, as well as art director Kay
Brackins, were supervisors within the meaning of the
Act.
The principal question here is whether Respondent
terminated Lane, at least in part, for his activities on
behalf of a union or whether the termination was for un-
related actions. In considering all the facts, I have decid-
ed that Respondent's termination of Lane did not violate
the Act and further that Respondent did not violate Sec-
tion 8(a)(1) of the Act under the other complaint allega-
tions.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Washington, D.C., on July 2 and
3, 1980. All parties submitted briefs which have been
considered.
I Unless specifically noted otherwise, all dates herein occurred in late
1979 and early 1980.
On the entire record in this case, including the exhibits
and testimony, and noting the contradictions in testimo-
ny and on my evaluation of the reliability of the wit-
nesses based on the evidence and their demeanor, I make
the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Respondent is a District of Columbia corporation en-
gaged in the operation of a commercial job printing shop
in the District of Columbia. During the preceding year,
it had revenues in excess of $500,000 and purchased and
received, directly in interstate commerce from points lo-
cated outside the District of Columbia, materials and
supplies valued in excess of $50,000.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits, and I find, that the Union herein is
a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
At one point Respondent had two locations, the major
one being on Connecticut Avenue, and a second location
in Maryland. Sometime after the termination of Lane, the
second location was closed and Respondent's operation
continued at the Connecticut Avenue location. There are
approximately 50 employees at that location who work
different shifts and come to work at various times.
Harvey and Harris, for example, usually come to work
about 11 or 11:30 a.m. while Tyler is usually there
around 9 to 9:30 a.m. Most of Respondent's employees
are full-time employees but it has some part-time em-
ployees, some of whom have other main jobs and others
who wish to restrict the number of hours that they
work.
Lane was hired by Tyler in January 1979 and started
by learning how to be a stripper, although he had some
background in photography. He was hired as a part-time
employee since he stated he had a photography business
on the side.
Harvey and Harris agreed that around May 1979 Lane
asked them how to become a full-time employee and was
told that all he had to do was ask. They said they con-
sidered his question as a request and that he was made a
full-time employee within a week.
Lane at first denied that he had ever requested to be
transferred to full-time status, saying that the Company
had offered it to him. After several such denials, he ad-
mitted that he did question Harvey and Harris and in a
sense requested transfer to a permanent position.
Lane stated that in August he contacted a union agent
to find out how to start organizing a union at the Com-
pany. After getting information, he contacted two other
employees and contacted another two employees each
month, asking their sentiments concerning a union and
trying to persuade them that they should have a union at
TYLER BUSINESS SERVICES, INC. 571
Respondent. Lane admits he made his contacts very se-
cretly and did not think he drew any attention to himself
in that regard. There is no testimony that Lane ever told
anyone from management that he was attempting to or-
ganize a union or that any employee ever told any of Re-
spondent's agents that Lane was attempting to organize a
union until December 21.
B. The August Conversation of Harvey and Harris
With Lane
Lane testified that around the end of August near the
close of work, either Harvey or Harris brought up the
subject of union, with Harvey saying that a union would
be a bad thing because under union rules they would
have to get rid of a printer at the Company and there
would be no crossover work. Lane said he replied that
he did not think a union would require something like
that.
Harvey testified that, sometime after work was com-
pleted on an evening in August, they were sitting around
his desk having a couple of beers when he got into a
conversation with Harvey and Lane about the union at
the Washington Post and the strike there and the damage
to some presses. According to Harvey, nothing was said
having to do with Respondent.
Harris testified that he had a conversation with
Harvey and Lane sometime in August in which they
were talking about what was done to the presses at the
Washington Post during the strike. Both he and Harvey
denied making any threat to lay off employees if they
chose a union, or stating that employees would not be
free to talk to other employees if they chose union repre-
sentation.
It is possible that there could have been a conversation
about what union work rules provide as they understood
them, but at that time there was nothing to indicate that
there was any union organization being attempted at Re-
spondent and nothing to draw any attention to Lane.
I credit Harvey and Harris as to the parameters of the
conversation and do not find that there was any threat
made as to what Respondent would do if a union came
in there. Therefore, I will dismiss paragraphs 5(a) and (b)
of the complaint.
C. Lane's Statements
Respondent's biggest customer for typesetting in 1979
was the American Helicopter Association which pro-
duced a magazine called Vertiflite. Its editor, Kim Smith,
usually worked closely with Kay Brackins in setting up
the magazine.
During the fall of 1979, Lane dated Kim Smith. Lane
stated that in August, and Kim Smith stated that in mid
to late November, while on a date, Lane asked whether
Smith had heard the rumor that Tyler was having an
affair with Kay Brackins and whether she thought the
rumor was true. Smith said she was offended by this
question since Kay Brackins was a friend and she felt it
was a rumor with no foundation. From other evidence, it
is apparent that during this conversation Lane brought
up the termination of an employee named Lynn, stating
that he felt it had been unfair and that she had been a
part-timer who had no hospitalization.
Sometime shortly thereafter, while working with
Brackins in pasting up the magazine, Kim Smith men-
tioned this conversation to Brackins. Brackins was taken
aback by the statements but did not say much then since
they were in the middle of work surrounded by other
people. Smith saw Brackins later that evening in a social
setting and said that Brackins discussed the matter more,
was angry, hurt, and cried about it.
Brackins testified that she was extremely upset about
the matter but decided to cool down about it, feeling
that nothing was to be gained by telling Tyler about it
then. Some 2 to 3 weeks later, while having a discussion
with Tyler as to whether men or women gossiped more,
she told him men were the worst gossips and illustrated
her point by stating that Lane had gossiped to others
that she and Tyler were having an an affair. Tyler at
first was amused by the statement and considered it
funny but when she informed him that Lane had made
this charge to a customer of the Company, Tyler became
upset and said that no one should be taking such rumors
outside the Company to customers. Brackins told Tyler
that Lane was saying Tyler treated part-time employees
unfairly by not giving them hospitalization or other
benefits. Tyler angrily reacted to this statement, saying it
was untrue since he had given Lynn hospitalization and
felt that he treated part-timers well and was not taking
advantage of them. This conversation, which took place
somewhere around December 7, ended with Tyler tell-
ing Brackins that he would get rid of Lane.
Respondent grants bonuses to most of its employees,
usually on an annual basis in the first part of December
when the accountant has given Tyler a good indication
of how the business has gone for that year. Bonuses,
which ranged from $50 to several thousand, were grant-
ed to practically all employees, including Lane, and paid
during the pay period of December 12. Lane got a bonus
of $187.50. When questioned concerning this, Tyler said
that Lane had done his work and had earned his bonus
and therefore it was paid to him.
Respondent conducts supervisory meetings concerning
its employees and its expectations of them, including de-
cisions on whether to retain them, in December. Accord-
ing to Respondent, there are no detailed records kept of
employees' progress of work habits, etc., because it is a
small company and this is handled orally and continually
by Tyler and his supervisors. Tyler holds a meeting with
Brackins and others to consider the upstairs employees,
how they are doing, and whether any changes need to
be made or whether they have any discipline problems,
and holds a second meeting with Harvey and Harris to
consider the downstairs employees.
Tyler, Harvey, and Harris testified they held such a
meeting on Friday, December 14, to discuss some five or
six employees. It is evident from their testimony that
they did discuss the progress or lack of it of five or six
employees, deciding to keep two or three of them and
give them another chance and to terminate several
others. They decided to terminate the receptionist and
one person in the bindery and were considering terminat-
T Y L E R. B U I N S S E V.E S I N C . .
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing another employee who, about that time, said he had
decided to quit and go back to school. While considering
these employees, Tyler told Harvey and Harris that he
wanted to terminate Lane. Harvey indicated he was a bit
surprised and stated that Lane was a good, dependable
employee and had done his work well. Tyler said he
wanted to get rid of Lane because he had a big mouth
and was telling lies and had been spreading rumors to
one of Respondent's customers that Tyler and Brackins
were having an affair and that Tyler was mistreating
part-time employees by not giving them proper benefits.
Harvey and Harris agreed that they could do without
Lane. They also testified that the employees to be termi-
nated would be terminated following the Christmas holi-
days. When asked about this decision, Tyler stated it was
his policy never to fire anybody right before Christmas.
There is no question but what the three employees, the
receptionist, bindery employee, and Lane, were let go on
January 2.
Lane testified that sometime around early to mid-De-
cember, Harris, with no preliminaries, told him that the
Company did not want a union and if they had one,
Lane could not go and talk to another employee or do
other than his assigned work. Lane said he asked Harris
what would happen if somebody was working to bring a
union into the plant. Harris supposedly replied that Re-
spondent did not hire union people.
Harris denied making any such statements, and Re-
spondent offered testimony that it had several known
union employees. Harris stated that the first knowledge
he had about the union and Lane was from employee
Vatch's conversation with him on December 21.
I credit Harris' denial that the conversation occurred.
Although Harris was somewhat nervous when he testi-
fied, his testimony appeared to be straightforward. Even
if this conversation did occur as Lane testified, it appears
to be an explanation of union work rules, not of some-
thing Respondent would do. There is no question that
Respondent did hire a union member stenotypist who
openly showed her union preference and talked about it
to management. I do not credit that Harris would have
made a statement that Respondent would not hire union
people to an employee who would know it to be false.
This complaint allegation is dismissed.
On December 20, Lane talked to fellow employee
Vatch concerning the Union. This was the day following
the Christmas party, and Lane told Vatch he wanted to
speak to him in confidence, saying he was trying to orga-
nize a union and asked Vatch to join. Vatch said he
would not join and that he thought the benefits of the
Company were good and sufficient. Lane said that some
of the part-time people wanted to be full-time. Vatch
said that some of the part-time people wanted to stay
part-time and gave him several examples. Vatch told
Lane that he should not spread stories about things of
which he had no knowledge, such as hospitalization and
job security for part-time employees.
On the following day, Vatch told Harris about the
conversation and stated that Harris appeared surprised.
Harris agreed that after his conversation with Vatch he
asked several supervisors if they had heard anything
about a union organization and was told they had not.
Tyler had gone home to prepare to leave for a Florida
vacation and was in contact with Harris before leaving.
Harris told Tyler what Vatch had reported and asked if
there was anything he should do. Tyler replied, "So
What? We're going to get rid of him [Lane] anyway,"
and that ended the conversation on that point.
Tyler returned to Washington on either Monday, De-
cember 31, or shortly thereafter. According to Lane, on
the morning of January 2, Tyler called him to Harris'
desk and asked what it was he had heard about Lane
stirring up trouble. Lane said there was some discontent
among the employees. Tyler asked what that was, and
Lane answered it concerned job security and people
being fired without notice. According to Lane, Tyler
said, "Well, if there were such problems, why didn't you
come to me about them?" Lane replied he was trying to
organize a union, and Tyler said, "That's why I'm firing
you, because you don't have any sense." Lane replied it
was illegal to fire someone for organizing a union. Tyler
replied that he did not mind a court fight, that he had
had them before, had friends with the unions, and if he
had wanted a union he could have had one. Lane stated
that as he was about to leave, Tyler said he did not ap-
preciate Lane spreading rumors about James Harris or
about Kay Brackins and himself, and asked if he had
done it and if Lane had talked to any customers about it,
and he replied that he did not think so. Tyler told him to
think about it for a minute, and Lane said he might have
and Tyler agreed.
Lane said that on his way out he told his foreman,
Harvey, that he had just been fired for union organizing.
A few minutes later, Lane said he had a further conver-
sation with Tyler in which he asked Tyler exactly why
he was fired. He said Tyler replied, "Because you're
always bothering people about this union stuff and be-
cause you're spreading rumors about Kay and me, and if
you want to have a court fight about it I can produce a
witness to show that you were spreading those rumors."
Harris testified that on January 2 Tyler called Lane
over and said he was letting him go. Lane asked if it was
because of his union activities and Tyler said no, that it
was because he had spread rumors about Kay Brackins
and himself and also he was talking about the part-time
employees. Lane insisted he was being fired for his union
activities, and Tyler denied it.
Tyler corroborated Harris' version of the discharge
and stated that he asked Lane why he had never said
anything about Lynn and her situation to him so that he
could explain it.
Harvey stated that Lane spoke to him following his
discharge and said he had been fired for union activities.
Harvey said he was surprised at such a statement because
he knew Lane was to be terminated but really knew
nothing about Lane's union activities. Harvey also said
he had never heard any complaints from Lane about the
benefits of part-time employees.
Analysis and Conclusions
The General Counsel and the Union state that this is a
small plant and that the Board's "small plant doctrine"
should be in effect here, so that knowledge of Lane's
YLER BUSINESS SERVICES, INC. 573
union organizational activities could be imputed to Re-
spondent. Apparently they also believe that the August
conversation of Harris, Harvey, and Lane indicates that
Respondent suspected some union activity by Lane and
that this bears on knowledge. However, with what I
have found above, the August conversation affords no
basis for attributing knowledge of Lane's union activities
to Respondent. As the facts stand, there is no indication
of whether Lane had contacted the union prior to this
conversation.
It is clear that Lane kept his activities secret, and there
is no way of showing that Respondent had any direct
knowledge of Lane's union activities until December 21.
The small plant theory is applicable in a number of situa-
tions, but in this situation, where the plant is located in a
large metropolitan area such as Washington where the
employees would be scattered and the union activities
would not be in a confined area, I would not find this
theory to be applicable.
I find that the December 14 meeting of Tyler, Harvey,
and Harris was held and that decisions were made at that
time concerning the retention of some employees and the
termination of others, including Lane. It may seem odd
that this December 14 meeting was not included in
Tyler's affidavit, but it is also clear that part of his affida-
vit was confused on some items and that his oral testimo-
ny concerning this matter is corroborated fully and
seems more in keeping with the events, including the ter-
mination of the others. It is only supposition on the part
of the General Counsel and the Charging Party that
there was no such meeting.
The General Counsel indicates that Lane's statements
about part-timers should be considered in the context of
the organizing effort by Lane, but Lane was not engaged
in an organizing effort at the time that he was making
that and the other statements to the customer, Kay
Smith. Asked why he had made the statement about
Brackins and Tyler to Smith, Lane said that he was
giving vent to his frustrations, which, in that context,
would indicate he was acting somewhat maliciously.
When challenged concerning which part-timers
wanted to become full-time employees, Lane was unable
to cite any particulars and more or less agreed that he
was making general charges based on his view of his
own history at Respondent.
Essentially, there is no evidence that the Company
would not make full-time employees out of any part-time
employees who so wished. Secondly, there is no evi-
dence concerning what benefits, if any, were not given
to part-time employees.
It is clear from the context that Lane's statements to a
company customer who happened to be a friend of
Brackins, concerning part-time employees and the al-
leged affair, were made with intent to hurt Tyler and
Brackins. There is nothing in these statements to Kay
Smith that would show they were made with an intent
to help the Company's employees, or were made in an
organizing context.
I conclude and find that the decision to discharge
Lane was made on or before December 14 and on that
date announced to Harvey and Harris and that Respond-
ent had no knowledge of any organizing activity en-
gaged in by Lane prior to that time. While it is true that
Respondent could have changed its mind about terminat-
ing Lane, there is nothing to show such a predisposition
and, in fact, the testimony evoked by the General Coun-
sel from Tyler shows that Tyler was not disposed to
change his mind. When informed of the Lane-Vatch con-
versation, Tyler's statement was "So what? We're going
to get rid of him anyway." The decision had been made,
and finding that Lane had engaged in union activities did
not change it or become a part of the reason to terminate
him. As Tyler said, he had a choice between Brackins, a
longtime employee and supervisor whom Tyler consid-
ered indispensable, and an employee who had been with
the Company less than a year and, as far as he was con-
cerned, there was no question as to whom he wished to
retain. Accordingly, I conclude and find that there was
no violation of Section 8(a)(1) and (3) in Respondent's
termination of Lane and accordingly will dismiss the
complaint.
I conclude and find that the complaint allegations of
8(a)(l) and (3) violations in this matter have not been
proven and therefore dismiss the complaint
[Recommended Order for dismissal omitted from pub-
lication.]
TYLER BUSINESS S RVICES, INC. 73