Wykle Research, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1988

290 N.L.R.B. 1062 (N.L.R.B. 1988)

1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wykle Research, Inc. and United Food and Com-
mercial Workers Union, Local 711, affiliated
with United Food and Commercial Workers
International Union, AFL-CIO and CLC. Case
32-CA-8924
August 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 2, 1988, Administrative Law Judge
Richard J. Boyce issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and brief and has decided to affirm the
judge's rulings, findings,' and conclusions2 and to
adopt the recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This
matter was tried in Carson City, Nevada, on 4 and 5 No-
vember 1987 1 The complaint, based on a charge filed by
United Food and Commercial Workers Union, Local
711, affiliated with United Food and Commercial Work-
ers International Union, AFL-CIO, CLC (Union) alleges
that Wykle Research, Inc (Respondent) violated Section
8(a)(3) and (1) of the National Labor Relations Act (Act)
on 8 May 1987 by "discharg[ing] its employee Tammy
Holt . . . because [she] joined or assisted the Union or
engaged in other protected concerted activities."2
The complaint alleges that Respondent, by its general
manager, Carl Tolson, further violated Section 8(a)(1) on
8 May by "interrogat[ing] an employee about his/her
union membership, activities, and desires and [those] of
other employees," and by "threaten[ing] an employee
with discharge if he/she joined or assisted the union or
engaged in other protected concerted activities."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Wykle Re-
search , Inc., Carson City, Nevada, its officers,
agents, successors , and assigns , shall take the action
set forth in the Order.
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has also excepted to the judge's decision asserting that
it evidences bias and prejudice on our full consideration of the entire
record in these proceedings, we find no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated bias against
the Respondent in his analysis and discussion of the evidence
2 Although the judge did not discuss the testimony of several of the
Respondent's witnesses, who characterized discriminatee Tammy Holt as
a disruptive and uncooperative employee, we have considered such evi-
dence and reach the same result as did the judge We conclude that the
General Counsel has made out a prima facie case of unlawful discharge
by showing that the Respondent had knowledge of Holt's union activity
and, having gained such knowledge, called her into the office of General
Manager Tolson who immediately unlawfully interrogated her about her
union activities and threatened her with discharge if she did not end such
activities Before the meeting ended, Holt was discharged The judge dis-
credited the testimony of Tolson and Marketing Director Echols, who
also was present, about the reasons for her discharge We, therefore, like
the judge, find that the Respondent has failed to meet its burden of show-
ing that it would have discharged Holt even in the absence of any union
activity See Wright Line, 251 NLRB 1083 (1980) We find it unnecessary
to rely on the judge's speculation in fn 32 of the decision in reaching this
result
Ariel L. Sotolongo, Esq., for the General Counsel.
Thomas J. Ray, Esq. (Allison, MacKenzie, Hartman,
Soumbeniotis & Russell, Ltd.), of Carson City, Nevada,
for the Respondent.
II. JURISDICTION AND LABOR ORGANIZATION
Respondent , a Nevada corporation located in Carson
City, sells certain dental products nationwide on a nonre-
tail basis . The pleadings establish that its annual sales to
customers outside Nevada exceed $50,000, and that it
thus is an employer engaged in and affecting commerce
within Section 2(2), (6), and (7) of the Act.
The pleadings establish , as well, that the Union is a
labor organization within Section 2(5) of the Act.
III. THE ALLEGED MISCONDUCT
A. Evidence
About 90 percent of Respondent's sales are by tele-
phone from Carson City. The telephone salespeople are
called telemarketing service representatives-telemar-
keters for short. Most of the remaining sales are realized
at dental meetings around the country. Telemarketers
sometimes represent Respondent at those meetings.
Tammy Holt was a telemarketer. She began on 5 Janu-
ary 1987 and, as the complaint alleges, was fired on 8
May. She was one of about six telemarketers when dis-
charged.
The telemarketers did not have union representation at
relevant times. Holt began promoting representation to
her coworkers on 6 May, distributing a prounion flier to
two of them, discussing the flier with another by tele-
phone, and inviting several to her home for a postwork
organizational meeting on May 7 The flier, prepared by
' This manner of setting forth dates comports with the wishes of the
Board
2 Sec 8(aX3) forbids an employer from "disenmmat[tng] to regaid to
hire or tenure of employment to encourage or discourage membership in
any labor organization" Sec 8(a)(1) prohibits an employer from
"interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise
of the rights guaranteed in Section 7" of the Act Sec 7 guarantees em-
ployees "the right to self-organization, to form, join , or assist labor orga-
nizations and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection "
290 NLRB No. 133
WYKLE RESEARCH 1063
Holt's husband after conferring with the Union's business
agent, Bob Whitney, stated variously that the Union "is
willing to represent telemarketers and other clerical posi-
tions", that representation "would of course mean better
benefits, wages, and working conditions for all", and that
"a majority of employees [would have] to attend a meet-
ing to discuss this" with Whitney "to get the show on
the road "
The next day, 7 May, Holt continued to pass word of
that evening's meeting The meeting materialized as
planned , but only three employees-Holt and two
others-attended Whitney presided, and supplied Holt
with union authorization cards Among those invited but
not present was Thelma Banker, whose duties included
serving as secretary for Respondent's general manager,
Carl Tolson
At work the first thing the following morning, 8 May,
Holt and Banker had a conversation in which the issue
of Banker's signing a union card came up 3 Holt was on
her way to the restroom at the time She and Banker
commonly conversed on such occasions, Banker's desk
being "directly across from" the restroom Soon after, at
her telephone cubicle, Holt complied with a coworker's
request for a card
Assertedly feeling duty-bound to do so, Banker pres-
ently told Tolson about her encounter with Holt This,
according to Tolson, was his first knowledge of Holt's
union activities 4 About the same time, apparently, two
of Holt's coworkers informed Respondent 's marketing
director, Darrell Echols, of the previous evening's meet-
mg-his first awareness , so he testified, of Holt's activi-
ties
Prompted by Banker's disclosure, Tolson forthwith
summoned Holt, Echols, and Banker to his office to "get
the matter straightened out " Banker's purpose in being
there, Tolson testified, "was to corroborate the statement
regarding Tammy's bothering her, and also to take
minutes of the meeting " Tolson and Echols both testi-
fied that they had not previously discussed the situation
with each other
Holt testified that Tolson began the meeting by saying
he understood that she had "had a union meeting last
night" and that she "had been soliciting union cards "
She ignored the reference to the meeting , as she recalled,
but admitted complying with a coworker's request for a
card Tolson came back, per Holt, that she "should quit"
if she was "that unhappy with the company " Tolson
further stated , according to Holt, that "unions in Nevada
a The details of this conversation are in conflict Banker testified that
Holt started it by asking her to sign a card, that she replied in the nega-
tive, "[A]bsolutely not I spoke with my husband last night He feels I'm
not even eligible to be covered by this I'm not interested You're inter-
rupting my work Get away from me", and that Holt promptly with-
drew Holt testified , on the other hand , that Banker began the exchange,
asking "how the meeting had gone" and if Holt had asked Whitney about
Banker's eligibility for union representation , and that she said Whitney
did not know , but that Banker could sign a card if she wished and they
"could go from there "
• Banker reported , by Tolson's initial version, that Holt had asked her
to sign a card, persisting even after Banker had said to "stop bothering"
her, and that Holt also had been "bothering everybody else " Tolson
later testified that Banker did not say others had been "pestered," only
that she had been "pestered" and that "some of the employees are
unhappy"
are illegal," and that she would "be fired" if she "did not
cease and desist [from] union activities" and "sign a
paper" so pledging Holt assertedly responded that she
would not "sign anything" until conferring "with some-
body else," and the focus shifted to other matters S
Tolson testified that he opened the meeting by saying
he had heard that Holt was "soliciting " for the Union
He also testified , twice, that he questioned Holt whether
she had asked Banker "to sign a union card " He later
denied putting that question to her , averring that he in-
stead remarked , "I understand-Thelma tells me that
you-you 've been bothering her regarding a union
card "
Tolson's account continued that he told Holt, follow-
ing these "introductory or preparatory" comments, that
any soliciting was to be "on her own time, during
breaks, lunch hour, or off the premises", that he did not
"care what she did during those periods ," but that she
was "not to do it on company time " Holt responded, ac-
cording to Tolson, that she would do "whatever she
wished anytime she wanted," prompting him to
state that her "job function was to be on the phone and
stay on the phone," and that she "could do whatever she
wished during the break times or after hours or
before hours providing it wasn't disruptive to other
employees "
Tolson admittedly told Holt "at least once" in the con-
text of her union activities "that, if she was unhappy
with the company, she should quit " She replied, so he
testified , either that she would "when she [got] another
job," or that she would "get another job when she [felt]
like it " Tolson denied referring to the meeting at Holt's
house, contending that he "did not even know there was
a meeting "
Tolson also denied giving Holt a cease -and-desist ulti-
matum According to an affidivit he gave during the pre-
complaint investigation of this matter, however, he "ad-
vised" Holt that she was "disrupting the flow of work of
the company ," that he "had been informed that her con-
stant complaining and attitude was disruptive to her
fellow employees," and that he "would be forced to ter-
minate her if she didn't stop disrupting the work
flow "a Tolson, in his live testimony, did not address the
remark Holt attributed to him that unions are illegal in
Nevada He stated in his affidavit "I did inform her
Nevada was a right-to-work State I did not tell her
unions were illegal "7
a In evidence without objection is a fragmentary note in Holt 's hand-
writing purporting to summarize Tolson 's cease-and-desist ultimatum
Holt testified that she scribbled it "at the same time he was saying it,"
and that its essence is that Tolson ordered her "to cease and desist with
union activities and, if [she] didn't then [she) will be dismissed "
s In addition to its cease-and-desist reference , Holt's aforementioned
note (fn 5) states, "Do out side " Holt denied that this sapports Tolson's
version that he merely told her to solicit "off the premises " She testified
that it instead reflects her telling Tolson that she had approached em-
ployees only outside
r Asked if Tolson said that "unions in Nevada are illegal or that
Nevada is a right-to-work state," Holt repeated that "he said unions in
Nevada are illegal " She added , in answer to a followup question, that
she "understand[s] what the difference is "
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Echols testified that the portion of the meeting devot-
ed to Holt's union activities was "very brief," and that,
while he could not remember "exactly what we started
off with," it "may have" come at the meeting's outset.
He recounted Tolson's saying he had "had some com-
plaints that people had been solicited at work," specifi-
cally mentioning that Banker had been "approached
about signing some type of union card"; and that Tolson
proclaimed:
I'm not going to have it . . . on my time, on my
payroll time If you want to do it out in the parking
lot on your time, be my guest. But you're not to do
it on my time.
Echols also testified that Tolson said, with reference to
Holt's union activities, "If you're that unhappy, why
don't you just leave?" Echols mirrored Tolson's denial of
a cease-and-desist ultimatum, further denying that Tolson
otherwise threatened Holt with discharge.
Banker testified that Tolson forbade "solicitation of
anything on company time or company premises," and
that this "opening sentence was the only time it [Holt's
union activity] was even brought up." Banker continued
that she did not "believe [Holt] responded to that," and
the subject was dropped. Banker stated that she could
not recall Tolson's uttering a cease-and-desist ultimatum.
Neither Echols nor Banker was examined whether
Tolson said unions are illegal in Nevada.
The discussion eventually turned to Holt's pay and job
performance, evolving as Echols recalled into "a shout-
ing match."8 Holt complained that her performance and
personal circumstances demanded better pay, and that
Tolson had acted illegally by overriding a presumed ear-
lier commitment from Echols and Sharon Williams, her
immediate supervisor, to raise her monthly base salary
from $500 to $700.9 Tolson came back that he had not
approved the raise, that her performance "didn't war-
rant" a raise, and that she should "sell more" if she
"want[ed] more money." Tolson about then echoed his
earlier remark, "if you're unhappy with the company,
why don't you quit?"
Echols assumed a more active role as the exchange
progressed. Alluding to Holt's "screaming and yelling"-
his depiction, disputed by her-he commented: "Tammy,
I don't consider this professional behavior. . . [D]o you
consider yourself a professional?" She answered, by her
account, "[C]ontacting the Union was the most profes-
sional thing I could ever have done."
At length, Holt testified, she "told them that [she] was
not unhappy with the company" but only with Tolson,
and that, "if he would have left the telemarketing group
alone, the motivation would be up and [they] would be
selling much better." At that point, Holt continued,
Echols
stood up and turned around and looked at [her] and
said: "I cannot tolerate that attitude towards the
general manager You're fired!"
Echols recalled Holt's and his concluding remarks
somewhat differently. He testified that, after saying she
"liked" the company and "liked" him and Williams, Holt
said she had "a problem with" Tolson, expanding, "I
think he's an ass and he makes me sick." With that,
Echols went on, he announced: "Tammy, that's it.
You're fired!" Similarly, Tolson testified that, first having
said she would "work for Williams and . . . Echols, but
[not] for him," Holt called him "an ass." Echols there-
upon "jumped up," according to Tolson, and declared:
"That's disruptive and it's misconduct and . .. I won't
tolerate that attitude towards the general manager, and
so you're terminated-you're fired!"
Asked later if Holt called him an ass, Tolson evinced
less conviction, testifying, "I believe so." Holt denied
using that term or any other that might be considered
profane.
Banker recounted Holt's saying, "just before she was
terminated," that
she could do her job if the general manager left her
alone, but that she did not like him and she couldn't
do a job if he continued to be part of their depart-
ment or come into their department.
Echol's response, as related by Banker, was. "[B]ecause
of your attitude and your failure to work on improving
your attitude, you're hereby discharged." Banker averred
that "there may have been some names called," but she
could not be sure without checking her shorthand notes,
which were not produced. 10
By all live accounts, Tolson said nothing following
Echols' pronouncement. As Echols put it, Tolson "kind
of looked bewildered . . . [and] . . . just left the room."
In his affidavit, however, Tolson stated:
I told her her termination wasn 't based on any out-
side activities , it was based on misconduct, her
being disruptive to her coworkers and for entering
unauthorized areas. I had received a report from
Sharon Williams that around 5/5 Williams had
caught Holt in Williams ' office going through files,
I don't know what files.
fi Holt, asked if she raised her voice during the meeting, testified, "No,
there was no need to " I find this improbable in the circumstances
9 On 9 April, Echols and Williams met with the telemarketers to dis-
cuss their pay, among other things Holt and others had been complam-
mg that they were underpaid, and Echols himself "felt the base salary
was a little low " In Echols ' words, they "put together a plan" to raise
the base salary to $700 a month Tolson withheld approval pending fur-
ther research, however, and, when Holt learned this, she told Tolson that
she wanted her raise "immediately " Tolson responded that he would
"get approval" just for her, retroactive to I April, but that did not mate-
nalize
The meeting lasted about an hour. In its immediate
aftermath, Echols prepared and Banker typed a so-called
statement of understanding, extracted from Banker's
shorthand notes. It stated:
1° Banker later revealed that even her notes would not be conclusive,
explaining, "[I]f there were some profanity . I may or may not have
written it in my shorthand notes " The record does not disclose if the
notes still exist Banker testified that she gave them to Tolson after she
was done with them
WYKLE RESEARCH 1065
This is to document a meeting held in Carl Tol-
son's office at 1000 a in on Friday, May 8, 1987
Attending were Carl, Darrell Echols, Tammy Holt
and notes were taken by Thelma Banker
Carl told Tammy that if she was unhappy with
Wykle Research, she should find another job
Tammy stated that she had made contact to have
a union card signed only after an employee had
asked her for the card Carl then specifically cited
Thelma as having been contacted on company time
Tammy's base salary and commission structure
were outlined by both Carl and Darrell Tammy
feels she has been mistreated , and has not received
all compensation agreed to when she was brought
on board Carl stressed that she is presently ahead
of her schedule on her income earning , as suggested
upon her initial employment
Carl stated that Wykle Research is not responsi-
ble to fulfill all Tammy' s family income needs
Tammy stated her unhappiness with Carl-not
with Wykle Research Darrell informed Tammy
that he (Darrell) is her immediate Department Man-
ager, and cannot tolerate that attitude Therefore,
Tammy is being released from employment effec-
tive 12 noon today, May 8, 1987
On Echols' request, Holt waited until the document
was prepared , the idea being that she joined him and
Tolson in signing it After reading it, however, she re-
fused to sign She testified
I refused to sign it for the fact that it did not have a
couple of the main words I told [Echols] that
at the meeting Mr Tolson told me I had to cease
and desist with union activities or I was fired, and it
was not in this document
Holt testified that, faced with her refusal, Echols tele-
phoned Tolson, after which he told her that Tolson "did
not say that", that she had "misunderstood" him Holt,
insisting as she recalled that she had not misunderstood
Tolson, persisted in her refusal to sign Echols did not
speak of this incident in his testimony
"[T]hat day or the next day," Banker testified, she
transcribed her shorthand notes more literally She
termed the resulting minutes a "verbatim transcrip-
tion "i i They make no reference to a cease-and-desist ul-
timatum, depicting Tolson's comments regarding Holt's
union activities this way
Carl stated he had heard some "rumblings" about
solicitation of union cards to be signed , disrupting
the work of fellow employees, and these fellow em-
ployees were annoyed at the constant interruptions
He further stated that these interruptions must
cease Further disruptive activities of any sort will
be cause for dismissal Any solicitation must be on
off hours, or on employee 's personal time , and out-
side the building-not on company time Carl fur-
ther stated that the signed (by Tammy) company
policy declares solicitation activities on company
premises to be strictly prohibited Carl told Tammy,
"If you are dissatisfied with your job, you should
look for another one "
Nor do Banker's minutes indicate that Holt called
Tolson an "ass " They deal with the concluding portion
of the meeting, when that supposedly occurred , as fol-
lows
Tammy said that, "I like the company-it's just you
(Carl Tolson) that I don 't like If you (Carl Tolson)
would just stay away from me , I could probably do
a good job here " At the moment , Darrell inter-
vened and said to her "I am your immediate De-
partment Manager , and I cannot tolerate that kind
of disrespect for our company's General Manager
Therefore , you are dismissed because of your atti-
tude at 12 noon today "
Banker's minutes elsewhere reveal that
Tolson told Holt early in the meeting that she
had "a choice as to whether [she was] going to be
here or gone," and that he "want[ed] the choice
made by the end of today",
Echols told Holt she had "excellent closing
rates" and "works very hard on the phone", that
her "biggest problem has been herself-the constant
'bitching ' and complaining", and that she should
"get out of the department if she was unhap-
py"
Tolson said he was "not satisfied with Tammy's
performance" at a recent dental meeting in Detroit,
and that she "outlined reasons the show was not
profitable (including [booth] location, etc) "
Echols "stated that Tammy could earn all she
wanted , because of her talents", and that Tolson
said
You've been here for six months The first few
months, your sales were poor , but now you're start-
ing to really roll You get your money on perform-
ance-not on your wishes
Echols declared , just before the concluding ex-
change, "that if [Holt] is so extremely unhappy with
the company, she should resign and find herself an-
other job "
Lori Richards, a telemarketer at the time , testified that
she had a conversation with Echols after Holt's dis-
charge in which he said he took the action because Holt
had "got[ten] a little mouthy toward her boss"
Echols enlarged , according to Richards, "All we wanted
to talk to her [about was] that you can't solicit union at
work " Echols said nothing about this conversation in his
testimony
Respondent would have it that it also discharged Holt
on 10 April That was a payday When her check did
not reflect an expected $200 increase in her monthly base
salary, i s Holt confronted Echols and Williams, and a
11 As earlier noted, Banker conceded the possible incompleteness of
the underlying notes, at least as concerns profanity 12 Fn 9, supra, provides context for this expectation
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
several-hour encounter ensued. She protested not only
the pay situation, but a proposed revision of the telemar-
keters' work schedules, projected to go into effect in
June,' 3 contending that it would create insuperable
child-care problems. She beseeched at one point, "[W]hy
don't you just fire me, so I can collect my unemploy-
ment."
Echols and Williams advanced several possible solu-
tions-volunteering Williams' children as babysitters; of-
fering Holt split shifts; permitting her to leave to deliver
the children, then return to work, without being docked.
Holt was not receptive, however, and Echols finally "ex-
cused" himself to confer with Tolson, who directed that
he "let her go" if she was "that adamant" about the un-
workability of the proposed changes. Echols thereupon
gave Holt her final check, urging as he did so that she
"try and work this out." He admitted: "I didn't want her
to leave. I didn 't want her to quit."
Holt called Echols later that day, reporting that she
had discussed the matter with her husband and that they
could "work out the hours." Echols responded, as he re-
called:
Fine, Tammy, under these conditions: . . . That
you come back with a good attitude, get back on
the phone and do your job, and I don't want to
hear any more about it.
She responded with the sought-after assurances, and re-
turned to work apparently without suffering any actual
break in employment.
Echols testified that the discharge in question "was
strictly [his] decision and [he] took full responsibility for
it." Tolson likewise testified that "Echols discharged
her," adding that he "had the authority to overrule"
Echols, but instead tacitly "concurred." Both testified
that they did not foresee, when the fateful meeting
began, that it would end as it did. Echols asserted, how-
ever, that Tolson "had been on [his] case to get rid of
her for quite awhile"; that he, too, was "fed up with"
and "thinking of terminating her" by 5 May; and that he
"intended to terminate her," but "not particularly on"
the 8th. The reasons for Tolson's disenchantment, ac-
cording to Echols, were that Holt's sales "weren't there,
she wasn't performing what we needed to justify her";
and her "bitching and moaning was something we didn't
want."
Echols first testified that he fired Holt
because I was tired of her performance. . . . I was
tired of her constant outbursts, her disruptive be-
havior, that was affecting this department and . . .
that I had spent too much time on . . . . I don't
know of any company that you could go to . . .
that an employee could do that and get away with
it.
13 The proposal consisted of increasing the telemarketing complement
to 12 and adding a second shift-one working four 10-hour days per
week, the other three 10-hour days and 4 hours on Saturday, and both
being paid the same base salary.
Echols later testified that Holt' s last statement in the
meeting upset him, and "that's why [he] fired her . . . .
spontaneous[ly]" and without premeditation, "right on
the spot, right when the comment was made." Asked
again why he took the action, Echols answered, "Be-
cause I didn't want this disruptive behavior and this
person in my department anymore. She was not perform-
ing." He elsewhere testified variously that "the sole
factor was her performance"; that her " sales perform-
ance . . . was part of it"; that the "primary reason" was
her "disruptive behavior"; and that he "terminated her
because of her disruptive behavior" in the 8 May meet-
ing, as well.
Asked his meaning of "disruptive behavior," Echols
testified:
Her constant disruption to the other employees,
which affected their performance; her constant dis-
ruptions about her salary, the policies, the proce-
dures, everything about the company.
He later answered the same question this way:
Her constant complaining and moaning, her disrup-
tive behavior to the other employees, the fact that
she wasn't doing her job, she spent more time com-
plaining than being on the telephone, which is her
job, to be on the telephone.
Echols denied-"absolutely not"-that Holt's union
activities figured in his action.
Tolson's live testimony to the contrary, he stated in his
affidavit:
I decided to discharge Holt for (1) misconduct, her
going into unauthorized files in Williams' office, (2)
disruptiveness, constant complaining about the com-
pany, her husband, her home life, to her fellow
workers, and (3) insubordination, her refusal not
[sic] to stop bothering her fellow employees. [Em-
phasis added.]' 4
His affidavit aside, Tolson testified, "There's a multi-
plicity of reasons why Ms. Holt was terminated." Pur-
porting to relate them, he adverted to the 8 May meet-
ing, testifying:
She became quite vocal and used some language
that was unconducive for a woman or a lady in my
office . .. and used some very vile terms regarding
myself and Darrell Echols.
Tolson concededly could not remember, and the record
does not otherwise intimate, that Holt called him any-
thing other than an "ass." Nor does the record contain
any evidence that she directed that or any other such ep-
ithet to Echols.
Again seemingly contradicting his affidavit, Tolson
denied that Holt was discharged because she "would not
14 Tolson testified that this extract from his affidavit refers to Holt's 10
April discharge, not that in question. A reading of the extract, in context,
unequivocally indicates the contrary, however, and the same affidavit
states that the incident in Williams' office occurred "around 5/5."
WYKLE RESEARCH
stop bothering other employees " 15 He denied, as well,
that poor sales were the "ultimate reason " 16 He also
denied that Holt's union activities were a factor , insisting
that he was "not at all" concerned about the employees'
"forming a union " His "only concern as it relates to
[union] activity," he testified , "was that it [not be] on
company time "
Although Tolson 's affidavit cites Holt's "going into
unauthorized files in Williams ' office" as one of the rea-
sons for her discharge , he did not speak to that in his
live recital Echols and Holt both recounted , however,
that Echols once chastised her for using the telephone in
Williams ' office Echols testified that she told him she
was calling in search of other employment , and that he
remonstrated "[T]his is an off-limits area and you're on
my time " Holt countered, according to Echols, that the
premises had no phone for personal calls, and he offered
the use of his office phone when she was on break
Tolson 's affidavit states that this incident occurred
"around 5/5 " Echols first testified that it happened
sometime between 13 April and 8 May, but that he could
not remember "what date it is " He later testified that it
was 5 May, and that he had documented the incident in
writing Holt testified, on the other hand , that it was "at
the beginning of April," and Williams recalled that it
was "about a month before [Holt] was terminated " Per-
haps unwittingly revealing that it happened as recalled
by Holt and Williams (and/or that the incident was not
that important in the overall scheme of things ), Echols
testified that the reasons for the 8 May discharge were
much the same as those underlying Holt's 10 April so-
called discharge , "the only thing new [being]
her behavior at the Michigan dental meeting "
Holt and another telemarketer , Dottie Voight , repre-
sented Respondent at a meeting in Detroit from 25 to 27
April Tolson testified that Holt's standing with him suf-
fered from word of her antics there Echols had report-
ed, according to Tolson , that Holt's conduct had been
"unbecoming a professional", that she had "gone out in
the aisle and tried to trip dentists , and grabbed them "
Echols added , per Tolson, that Voight was "extremely
embarrassed with Tammy's behavior at the show," re-
signing as a result
Tolson continued that he "wanted to fire" Holt when
he heard this , but that he deferred to Echols, who said
he wanted "to observe her for a couple of more days
and then make a decision " Echols further remarked, as
Tolson recalled , that Respondent was "shorthanded and
a body was better than none "
Echols testified that he learned about the Detroit
meeting , from Williams, on his 5 May return from a trip
Williams reported , so he testified , that Holt had been
"tripping doctors in the aisle , and that her brazenness so
"upset" Voight that she had quit Williams recounted in
turn Voight's telling her that Holt "had went so far as to
go out and stand in the aisle and basically trip doctors",
15 Tolson's affidavit states in relevant part "(3 ) insubordination, her re-
fusal not to stop bothering her fellow employees " The italicized "not"
plainly sub%eras the intended meaning of the passage, and should be disre-
garded
16 Respondent 's counsel stated on the record that "sales are not really
an issue in this case "
1067
and that she, Williams, passed the information on to
Echols
Echols testified that Holt acknowledged to him literal-
ly tripping dentists, explaining that extreme aggressive-
ness was needed to offset a poor booth location He re-
sponded , he testified , that this was "not the professional
behavior [he] was expecting," and would be "reflected in
[her] performance review " Holt testified that she neither
tripped anyone , nor told Echols that she had She did
admit , though, that she "did everything [she] could to
get" dentists to Respondent 's booth, because "sales was
down," and Voight "was not aggressive enough," and
the booth was "in a spot where hardly any doctors went
by "17 Voight, testifying as Respondent's witness, said
nothing about the tripping, instead likening Holt's ap-
proach to that of a carnival barker "yelling at you to
come into their booth " Voight did not go into the rea-
sons she left the payroll
Tolson testified that Holt had "a positive attitude" and
that her performance was "maybe a little bit above aver-
age" in February and March , his only reservations being
her "extremely bad" English and lack of "professional-
ism" when dealing with dentists But, after 10 April, he
asserted, her attitude "changed considerably" and her
"disruptiveness" increased-she "was never on the
phone," 1 s she "was constantly interruptng other
people," i 9 her "sales were down,"2 ° and she was com-
plaining about her pay and "the general aspect of the
company "21
Echols, who became marketing director in early
March, testified that he "was not satisfied with [Holt's]
performance" from that time to 10 April citing both her
"disruptive behavior," which he called his "main con-
cern," and her sales record She "was a disruptive influ-
ence to other employees" throughout that time, he am-
plified , because of her complaints "every single payday"
that "the company had ripped her off" Others conse-
quently "started complaining and questioning their pay-
checks, too," he continued, compelling him to go over
the underlying calculations with a few of them each
payday as a routine occurrence This , Echols noted, was
"very irritating "
Echols admittedly did not feel in those early weeks,
however, that Holt "couldn't be worked with " He testi-
fied that he once resisted Tolson's urging that he "get rid
17 Echols characterized Detroit sales as "atrocious ," failing even to
cover expenses
18 Tolson testified , "[Ala soon as I walked in, she turned around and
got on the phone " Asked if he spoke to her about this, he testified "It's
not my position to do that That's her supervisor 's position "
19 Tolson indicated that he did not personally see this, testifying, "I
was hearing complaints from other telemarketers regarding her disrup-
tiveness "
20 Holt's sales figures were $1873 for January , $7247 for February,
$9972 for March, 54408 for April , and $4173 for May up to her dis-
charge Tolson acknowledged that her May sales were "rather high," but
averred that this is misleading because of "false orders " Echols testified
that Respondent knew nothing about any false orders 'till after she left
so that wasn't even a factor in her dismissal The record is anything
but conclusive that Holt in fact placed false orders
21 Tolson testified that Holt's complaints "primarily" concerned her
pay-"it was never correct as far she was concerned " He added, "[T]he
entire company shuddered when payday came up, because we knew we
were going to have a problem with Holt on the pay "
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of her," replying: "[N]o, I don't want to get rid of her,
because . . . she's got a lot of room for improvement
and . . . she's got some potential and I'd like to work
with her."
Echols assertedly watched Holt "more closely" fol-
lowing her abortive severance of 10 April. He explained:
"I'd already terminated her I'd already been told by Mr.
Tolson to fire her several times . My neck was on the line
here by bringing her back."
"For the first few days," Echols testified, "she seemed
to be fine," but then, come payday, she resumed her
litany about having been "ripped off." Nor was that the
only source of irritation, according to Echols. He added
that he "noticed her more and more frequently talking to
the other people in the other cubicles" about matters un-
related to work, and that four others had complained to
him that she was "bothering [them] again." He further
testified that this "was affecting" the others' perform-
ance; that their calls "had dropped off."
Asked what he did when he saw Holt engaging others
in inappropriate talk, and how often it happened, Echols
replied that he told her to "go back to work," but that
he could not recall "how frequent it was"-that he "was
so disgusted with the whole matter [that he] didn't mark
it off." Concerning the incidence of coworker com-
plaints, Echols testified, "[S]o frequent that, if I kept
writing down every date and every occurrence, I
wouldn't have gotten any of my work done."
As earlier mentioned, Echols testified that he memori-
alized Holt's being in Williams' office. In evidence is a
two-page document, ostensibly prepared by Echols on 5
May relying on a synthesis of memory and jottings on
"little note pads," which purports to summarize that and
other of Holt's misdeeds and failings. The first page
states.
Tammy
5/5 Unauthorized entry into supervisor's office to
search for new job. I heard her & told her not to be
doing this from this building, during work hours.
Verbal Warning given.
5/5 Tammy was observed out of her work sta-
tion having general chitchat and disrupting her co-
workers. She has been spoken to several times
about this & given a Verbal Warning.
4/25-4/27 Michigan Dental Meeting-Sales
Quota was 5000-actual 998-2 people-Tammy
Holt-Dotie Voight attended. When Dottie a new
employee returned she told us Tammy would actu-
ally trip Doctors to stop them. Tammy was told
that I was upset with her performance & she would
not be attending another meeting . I was in Indian-
apolis when I heard an Exhibitor rave about how
good the Michigan meeting was . We have always
done well at this meeting and 5000 is an acceptable
and attainable goal for this market.
Asked why he made a record of these matters at this
time , Echols testified:
I was still having problems with Tammy so I was
still keeping documentation on occurrences that I
felt warranted it. . . . [W]e had already talked to
Tammy about her disruptive behavior, she'd been
terminated before. She made a commitment to me
that she would not do this, that she'd have a good
attitude and do her job and this showed me that she
was not doing what she said she would.
The second page of the document states:
Every Pay Day of Commission Day
Tammy would complain her husband would kill
her & she couldn't show him her paycheck. Several
options were given to Tammy-none of which she
liked.
She was hired at 500 base [plus] 400 commission.
The guaranteed commission of 500 was extended
90 days on March 9 by Carl Tolson. He felt the
company had not given her all the tools she needed
to succeed.
Several Training Sessions, Sales Seminars, PTSS
Courses & 2 Trade Shows have been given to help
Tammy reach her goals.22
Everytime we sent Tammy on a trip she wanted
to receive comp time for going. Wykle Research
does not give comp time to salaried employees
when they travel as they receive 5% commission on
everything they write at the show plus all expenses
paid.
Echol's reason for recording these matters, he testified,
was
because these were occurrences that I had not doc-
umented before, as they occurred, and I thought it
should be documented somewhere because I
thought maybe I'd better let this person go.
He denied then knowing about Holt's union activities.
Holt testified that "everything was fine" and that she
had "a very positive attitude" until 10 April, but that she
"became unhappy" as an outgrowth of that day's meet-
ing with Echols and Williams and consequently began
looking for another job. She continued that "the morale
of everybody . . . was going down" coincident with the
erosion of her own; and that, while she "liked" Echols
and Williams, she "didn't like" Tolson and "the way he
conducted business."
Holt further testified that "all of" the telemarketers, as
a "common occurrence," talked among themselves about
nonwork matters; and that Williams often prodded them,
"sometimes twice a day," to "go to work" or "get back
on the telephones." Williams conceded as much, testify-
ing that she had "to remind quite a number ... of the
telemarketers . . . on a regular basis . . . to stop the
chitchat."
Holt denied, however, that she ever was singled out
for being "disruptive" or "chitchatting." She also denied
ever being told that her sales were "poor or unaccept-
able." Holt denied, as well , that she complained about
her pay "every payday." She asserted that she "twice"
questioned the "accuracy" of her commissions, and that
22 PTSS is short for "Professional Telephone Sales Skulls "
WYKLE RESEARCH 1069
"quite a few" of her coworkers "quite often" did the
same
On or about 1 April, Holt and a coworker each re-
ceived a $200 bonus Echols testified that the announce-
ment accompanying the presentation to Holt gave as the
reason "her spending time and energy training other
telemarketers on the computer and because of the initia-
tive she showed in doing that " Similarly, Tolson's affi-
davit states that the bonus was given Holt "for showing
some initiative and doing extra work in showing other
employees how to use the computer " Tolson and Echols
nevertheless testified that that was not the real reason
The real reason , according to Tolson,was for her to
buy some clothes , because she was going to [a] dental
meeting and her attire wasn't suitable "
Holt denied being told to use the money for clothes
B Conclusions and Reasons
1 The allegedly unlawful interrogation and
discharge threat
, Reviewing the evidence, Holt testified that Tolson
began the 8 May meeting by saying he understood that
she had "had a union meeting last night " and that she
"had been soliciting union cards " Tolson later said, ac-
cordmg to Holt, that she "should quit" if she was "that
unhappy with the company", and that she would "be
fired" if she "did not cease and desist [from] union ac-
tivities" and "sign a paper" so pledging Holt further tes-
tified that she memorialized the cease -and-desist ultima-
tum in the form of a contemporaneous note , which is in
evidence, and that she refused in the meeting 's aftermath
to sigli the so-called "statement of understanding" be-
cause it contained no reference to that ultimatum
Tolson admittedly opened the meeting by saying he
had heard that Holt was "soliciting" for the Union, and
concededly told her , "at least once" in the context of her
union activities, "that, if she was unhappy with the com-
pany, she should quit " He acknowledged , as well, that
he questioned Holt about asking Banker "to sign a union
card," later averring that he instead said , "I under-
stand-Thelma tells me that you-you've been bothering
her regarding a union card "
Tolson denied mentioning the previous night's organm-
zational meeting , or that he gave Holt a cease -and-desist
ultimatum , asserting that he merely directed to solicit
"on her own time " Tolson 's affidavit states, however,
that he "advised" Holt that she was "disrupting the flow
of work of the company ," that he "had been informed
that her constant complaining and attitude was disruptive
to her fellow employees," and that he "would be forced
to terminate her if she didn 't stop disrupting the
work flow "
Echols also denied that Tolson made a cease-and-desist
pronouncement, adding that he did not otherwise threat-
en Holt with discharge Banker testified that she did not
recall a cease-and-desist ultimatum
Neither the "statement of understanding" nor Banker's
more complete minutes refer to a cease-and-desist ultima-
tum The minutes reflect Tolson 's telling Holt, however,
that "further disruptive activities of any sort will be
cause of dismissal", and that she had "a choice as to
whether [she was] going to be here or gone," and he
"want[ed] the choice made by the end of today "
Crediting Holt, I find that Tolson delivered a cease-
and-desist pronouncement substantially as she described
Her demeanor in the telling was altogether covincing,
and the content of her testimony on the point , including
that about the memorializing note and her refusal to sign
the "statment of understanding," not only stood up under
the rigors of cross-examination , but came across as emi-
nently plausible Her account gains added documentary
enhancement , moreover, from the remarks linked to
Tolson by Banker's presumably sanitized minutes that
"further disruptive activities of any sort will be cause for
dismissal," and that Holt had "a choice to be here
or gone" and he "want[ed] the choice made" by day's
end
I conclude that, by thus conditioning Holt's continued
employment on her abstention from union activities,
Tolson threatened her with discharge in a manner violat-
ing Section 8(a)(1)
Regarding the allegedly unlawful interrogation , Tolson
admittedly brought up Holt's card-solicitation activi-
ties-either in question form or as a declarative state-
ment I find, crediting Holt, that he also mentioned the
"union meeting last night "aa I conclude that these re-
marks were interrogative in purport if not in form, and
that, juxtaposed with Tolson's cease-and-desist ultimatum
and the surrounding circumstances generally , they con-
stituted additional violations of Section 8(a)(1) 24
2 The allegedly unlawful discharge
In Wright Line, the Board stated
[W]e shall henceforth employ the following causa-
tion test in all cases alleging violation of Section
8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation First, we shall require that
the General Counsel make a prima facie showing
sufficient to support the inference that protected
conduct was a "motivating factor" in the employ-
er's decision Once this is established , the burden
will shift to the employer to demonstrate that the
same action would have taken place even in the ab-
sence of the protected conduct 25
I conclude that the General Counsel has made the req-
uisite prima facie showing that Holt's protected conduct
was a motivating factor in Respondent 's decision to dis-
charge her Thus
(a) Holt was the foremost , possibly the only, union
proponent among Respodent's telemarketers
29 Again, Holt's demeanor was most persuasive Tolson's denial was
weakened by his accompanying assertion that he "did not even know
there was a meeting " Given that Holt had invited Banker to the meeting,
and that Banker felt duty-bound to report Holt's card solicitation actiw-
ties to Tolson, I deem it most unlikely that she did not also tell hun about
the meeting
24 Rossmore House, 269 NLRB 1176 (1984) See also Churchill's Super-
markets, 285 NLRB 138 (1987), Structural Finishing, 284 NLRB 981
(1987), Establishment Industries, 284 NLRB 121 (1987)
as 251 NLRB 1083, 1089 (1980) This formulation received Supreme
Court approval in NLRB v Transportation Management Corp, 462 U S
393 (1983)
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Tolson and Echols first heard about Holt's union
proponency the very morning of the discharge
(c) Respondent was profoundly disturbed by word of
Holt's union activities, as witness Tolson's immediately
calling her to his office to "get the matter straightened
out," and his conduct during the ensuing meeting-most
notably, his cease-and-desist ultimatum.
I further conclude that Respondent has failed to over-
come the General Counsel's prima facie showing. My
reasoning is this:
(a) Had Holt called Tolson " an ass" during the 8 May
meeting, as he and Tolson testified; or directed "some
very vile terms" at Tolson and Echols, as Tolson would
have it; and had Echols thereupon discharged her
"spontaneous[] y]" and without "premeditation," as he
testified at one point, the discharge probably would not
have violated the Act.26
(b) The record contains no evidence, however, that
Holt said anything remotely vile,27 and, while the meet-
ing doubtless grew loud and heated, I credit Holt that
she did not call Tolson "an ass." 28 The supposition nec-
essarily follows that Tolson and Echols made this up to
lend colorable legitimacy to an improper action.
(c) Tolson and Echols, moreover, did not leave it at
that. After testifying that he discharged Holt as an on-
the-spot reaction to her supposed outburst in the meet-
ing, Echols testified, variously, that "the sole factor was
her performance," that her "sales performance ... was
part of it," and that the "primary reason" was her "dis-
ruptive behavior"-by which he professed to mean her
"constant disruption" of other employees and her "con-
stant disruptions about her salary, the policies, the proce-
dures, everything about the company."
Echols to the contrary, Tolson testified and Respond-
ent's counsel represented that Holt's sales were not an
issue; and Tolson, compounding the confusion, stated in
his affidavit that the decision was his, based on Holt's
"going into unauthorized files in Williams' office," her
"constant complaining . . to her fellow workers," and
her "refusal . .. to stop bothering her fellow employ-
ees." Tolson then fouled the stew still more by testifying
that this last was not part of the mix.
These several assertions in the aggregate, far from
serving Respondent's intended purpose, significantly but-
tress the General Counsel's prima facie showing. They
perforce belie any contention that the discharge was
spontaneous and unpremeditated; and their egregious in-
consistency suggests a truth-be-damned flinging of mud-
balls against a wall in the hope that some might stick.
Further, to the extent that Echols' and Tolson's "rea-
26 Meyers Industries, 268 NLRB 493, 497 (1984)
27 Among the dictionary definitions of vile are these " 1 morally base
or evil, wicked, depraved, sinful 2 offensive to the senses or sensibilities,
repulsive , disgusting 3 cheap, worthless 4 degrading, low, mean 5
highly disagreeable or most inferior, very bad " Webster's, New
World Dictionary (2d College Edition 1972)
28 Holt, as earlier indicated , generally was a convincing witness
Tolson and Echols, given to easy hyperbole in their zeal to disparage
Holt, were not In addition, Holt's calling Tolson "an ass" is not corrobo-
rated by the postmeeting "statement of understanding," by Banker, or by
Banker's more detailed minutes , and Tolson 's later testimony only that he
"believe[d] so," when asked if Holt had called him that, was singularly
weak
sons" do correspond-their recurrent references to
Holt's disruptive and bothersome behavior-the infer-
ence is inescapable that they were alluding at least in
substantial part to her union activities .211
(d) Most of the irritants cited by Tolson and Echols in
would-be justification of the discharge had been endured
for weeks before the 8 May revelation of Holt's union
activities. That she was discharged that same day be-
cause of those irritants, one or all, to the exclusion of her
union activities, therefore begs belief.so
(e) Aside from the just-noted infirmities in Respond-
ent's defense, it suffers from Tolson's and Echols' shared
penchant for reckless exaggeration and other obvious dis-
simulation.
Some salient examples- (1) Tolson's testimony, con-
trary to both his affidavit and the remarks during presen-
tation, that Holt was given the bonus "to buy some
clothes" rather than "for showing more initiative and
doing extra work"; (2) Echols' testimony, unsupported
by Voight, denied by Holt, and inherently unbelievable,
that Holt literally had been "tripping doctors in the
aisle" at the Detroit meeting; (3) Echols' added testimo-
ny, uncorroborated by Voight or Williams and intrinsi-
cally suspect, that Voight quit because of Holt's Detroit
conduct; (4) Echols' evasion, when asked how often he
saw Holt engaged in inappropriate talk, that he "was so
disgusted with the whole matter [that he] didn't mark it
off '; and (5) Echols' related ploy, when asked the inci-
dence of coworker complaints about Holt, that they
were "so frequent that, if [he] kept writing down every
date and every occurence, [he] wouldn't have gotten any
of [his] work done."
Yet other instances of Tolson's and Echols' manifest
and discrediting lack of candor are (6) Tolson's testimo-
ny that Holt "was never on the phone" (emphasis added)
after 10 April, whereas Banker 's minutes reveal that
Echols acknowledged during the 8 May meeting that
Holt "work[ed] very hard on the phone"; (7) Holt's
deing singled out by both Tolson and Echols as the
cause of recurrent interruptions, even though the record
contains no substantial evidence that she was ever sin-
gled out for warning or rebuke on that account and Wil-
liams testified that she "had to remind quite a number
.. of the telemarketers . . on a regular basis . . . to
stop the chitchat"; and (8) Tolson's testimony-absurdly
inflated and seemingly at odds with Echols' admission
that "a few of the employees questioned their pay as a
"routine occurrence"-that "the entire company shud-
dered when payday came up , because we knew we were
going to have a problem with Holt on the pay."
Tolson's and Echols' want of veracity is additionally
revealed by (9) the total absence of corroboration, even
from Tolson, for the statement in his affidavit that Holt
got "into unauthorized files" in Williams ' office; and (10)
the unconvincing character of Echols' testimony about
the timing of Holt 's being in Williams' office. First testi-
fying only that it was sometime between 13 April and 8
29 E.g, Virginia Metakrafters, 158 NLRB 958, 962 (1966), Winn-Dixie
Greenville, 157 NLRB 657, 662 (1966)
30 E g , Scott's Inc, 159 NLRB 1795, 1801 (1966), Swift & Co, 159
NLRB 1233, 1240 (1966), Virginia Metalerafters, supra at 962 in 3
WYKLE RESEARCH 1071
May, he later asserted that it was on 5 May, even pro-
ducing a memorandum he supposedly had prepared that
same day and ostensibly documenting this and other of
Holt's transgressions Holt and Williams persuasively tes-
tified , however, that the incident was weeks earlier, and,
as earlier noted , Echols himself implied as much (and/or
that the incident was of no great moment ), testifying that
"the only thing new" surrounding the discharge in ques-
tion, as opposed to Holt 's 10 April "discharge," was her
"behavior at the Michigan meeting 1131
One could go on, the foregoing is illustrative rather
than exhaustive of the chinks apparent in the accounts of
Respondent's two chief witnesses When deceit is at the
core of a defense , deceit unavoidably radiates far and
wide "0 what a tangled web we weave "
(f) Finally regarding Respondent 's burden, just as the
content of Tolson's and Echols ' testimony was fraught
with conspicuous artifice , their demeanor in the render-
mg was correspondingly unconvincing 32
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(3) of the Act on 8
May 1987 by discharging Tammy Holt, and further vio-
lated Section 8(a)(1) on 8 May by interrogating Holt
about her union activities, and by telling her she would
be fired if she did not cease and desist from engaging in
union activities
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed33
ORDER
The Respondent, Wykle Research, Inc, Carson City,
Nevada, its officers , agents, successors , and assigns, shall
1 Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities
(b) Threatening employees with discharge unless they
refrain from activities on behalf of United Food and
Commercial Workers Union, Local 711, affiliated with
United Food and Commercial Workers International
Union , AFL-CIO, CLC or any other labor organization
(c) Discharging employees for engaging in union ac-
tivities
(d) 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 Tammy Holt immediate and full reinstate-
ment to her former position or, if that position no longer
exists, to a substantially equivalent position , without prej-
udice to her seniority and other rights and privileges,
and make her whole, with interest , for any losses of
wages or benefits she suffered as a consequence of the
unlawful termination of her employment on 8 May
1987 34
(b) Remove from its files any reference to the unlawful
termination of Tammy Holt and notify the employee in
writing that this has been done and that the termination
will not be used against her 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 facility in Carson City , Nevada, copies
of the attached notice marked "Appendix "95 Copies of
the notice , on forms provided by the Regional Director
for Region 32, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent 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 the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
34 Backpay shall be computed in accordance with F W WooIa rth
Co, 90 NLRB 289 (1950), with interest in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987) Under New Horizons interest is
computed at the "short-term Federal rate" for underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621
as If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
31 Thus rejecting Echols' testimony that the incident in Williams'
office happened on or about 5 May, I also reject his testimony that he
prepared the memorandum that day and that it constitutes a reliable rec-
ordation of events I deduce that he instead prepared it sometime after
the discharge , self-aervmgly shaping its contents to support a theory that
Holt's misconduct had exceeded the limits of tolerance by 5 May just
before the onset of her union activities, yet proximate to the discharge
as The argument might yet be made, despite all the deficiencies in Re-
spondent's presentation, that the circumstances immediate to the dis-
charge bespeak an impulsive reaction by Echols to an unprotected provo-
cation A more tenable interpretation , in light of those deficiencies , is that
Tolson and Echols scripted the fateful meeting with the idea of goading
Holt into some kind of discharge-justifying excess
as If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all put-
Poses
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively interrogate employees con-
cerning their union activities.
WE WILL NOT threaten employees with discharge
unless they refrain from activities on behalf of United
Food and Commercial Workers Union, Local 711, affili-
ated with United Food and Commercial Workers Inter-
national Union, AFL-CIO, CLC or any other labor or-
ganization.
WE WILL NOT discharge employees for engaging in
union activities.
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 Tammy Holt immediate and full rein-
statement to former jobs or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges previ-
ously enjoyed and WE WILL make her whole for any loss
of earnings and other benefits resulting from her dis-
charge, less any net interim earnings, plus interest.
WE WILL remove from the employment records of
Tammy Holt any reference to her termination; and WE
WILL notify her in writing that this has been done and
that the termination will not in any way serve as a basis
for future personnel or disciplinary action affecting her.
WYKLE RESEARCH, INC.