Savin Business Machine Corp.

I)El('ISI()NS ()1: NAII()NAI. IABOR RIIA ONS BOARD) Savin Business Machine Corporation and Jeffrey A. Swanson. Cases 5 CA 9038 and 5 CA 9191 June 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNIN(; ANI) MN:M11ERS JNKINS AND PNELIO WE WILL. Nt)I in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. WI w'II.I. make Jeffrev Swanson whole for any earnings he lost because of his unlawful dis- charge. with interest. SAVIN BUSINISS MA(IIINI CO)RP()RAIION DIE(CISION On February 13. 1979, Administrative Law Judge Alvin ieberman issued the attached Decision in this proceeding. Thereafter, the General ('ounsel filed ex- ceptions and a supporting brief: Pursuant to the provisions of Section 3(b) of the Naitonal Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Savin Business Machine Corporation, Valhalla, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the at- tached notice is substituted for that of the Adminis- trative Law Judge. SIAIILMI:NI )I 1111 (CASI: Al VIN LIti BRMAN, Administrative l.aw Judge: The hear- ing in this proceeding, with all parties except the Charging Party represented, was held before me in Washington, I)is- trict of Columbia, on the General Counsel's complaints and Respondent's answers. In general. the issues litigated were whether Respondent violated Section 8(a)( 1 ) and (4) of the National Labor Relations Act, as amended (Act).' More particularly, the questions fir decision are as follows: I. Did Jeffrey Swanson, while employed b Respondent, engage in conduct falling within the protection of Section 7 of the Act'? 2. Assuming an affirmative answer to the fioregoing ques- tion, did Respondent, in violation of Section 8(a)( I ) of' the Act, discharge Swanson for engaging in such conduct? 3. Did Respondent, in violation of Section 8(a)(4) of the Act, constructively discharge Swanson for filing a charge under the Act?2 Upon the entire record.' upon my observation of the wit- nesses and their demeanor while testifying, and having taken into account the arguments made and the brief's sub- mitted. I make the following: IINI)INO S ()I lI-A(I I. it RI":,I)I O I N 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 parties had the opportu- nity to present evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and carry out its terms. WE WILL NOT discharge or otherwise discipline employees for taking part in any activity dealing with the manner in which employees are com- pensated or any other matter relating to working conditions, or for arranging meetings for the pur- pose of discussing the same. Respondent, a New York corporation whose corporate headquarters are located in Valhalla, New York, is engaged In pertinent part these sections provide: Sec. 8. (a) It shall be an unfair labor practice for an employer (1) to interfere with. restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (4) to discharge or otherwise discriminate against an employee be- cause he has filed charges or given testimony under this Act: Sec. 7 insofar as relevant, is as follows: Sec. 7. Employees shall have the right to self-organi7iatin, to form. join, or assist labor organizations. to bargain collectisly through repre- sentatives of their own choosing. and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection . ... 2Questions 2 and 3 are not mutually exclusive. They relate to separate events: the former to Swanson's actual discharge by Respondent and the latter to Swanson's resignation after he was reinstated. 3 Issued simultaneously is a separate order correcting obvious errors in the stenographic transcript of the hearing in this proceeding. 4 Although all the arguments of the parties and the authorities cited by them, whether appearing in their briefs or made orally at the hearing. may not be discussed, each has been carefully weighed and considered. 243 NLRB No. 29 92 SAVIN BSINISS M\('IIN (i CORP. at Rockville. Maryland. Rossln. Virginia. and elsewhere' in the sale and maintenance of business machines. I)urilng the respective I 2 months preceding the issuance oft' the com- plaints, representative periods. Respondent purchased f'roml vendors located outside the State of Marslaind machines. material, and supplies valued at more than 50.()0t. Ac- cordingl. I find that Respondent is engaged in commerce within the meaning of' the Act and that the assertion of1 jurisdiction over this matter hb the National l.abor Rela- tions Board (Board) Is wAarranted. II. INIR(O)I I, Two related, hut separate, matters are involved in this proceeding. One is concerned with Respondent's discharge of a salesman. Jeffrey Swanson. The other faicet of' this case deals with Swanson's reinstatement after he had filed a charge based upon his discharge and his subsequent resig- na tion. Respecting the frmer, the General Counsel contends that Swanson was discharged, in violation of Section 8(a )( I ) of the Act, because he engaged in conduct protected bhi Section 7. Regarding the laitter, the General Counsel argues that Swanson's resignation was engineered by Respondent in that, in retaliation for Swanson's having filed a charge against it, it required Swanson. upon his reinstatement, to work in a hostile atmosphere and reduced his sales terri- tory. Thus, the General Counsel posits, Swanson's quitting his employment with Respondent constituted a constructive discharge violative of Section 8(a)(4). Respondent asserts that Swanson's conduct before his discharge was neither concerted, nor protected by Section 7 of the Act. Furthermore, it is Respondent's position that Swanson's employment was terminated for cause: namely, as Respondent states on brief his "negative attitude and lack of respect for the company." as well as his "unsavori- ness and sexual overtones [displayed by Swanson] in his dealings with female employees." Concerning the change in Swanson's sales territory after his reinstatement. which, as will appear. was the principal reason for his resignation. Respondent claims that this was not done to penalize Swan- son for having filed a charge, but in implementation of its plan to increase its sales volume by hiring additional sales representatives and realigning territories of incumbent sales personnel to provide areas of operation for the new sales people. Itll. tHE COMPL.ANIS In this proceeding two cases. Case 5-CA-9038 and Case 5-CA-9191, have been consolidated for hearing. The charge in Case 5-CA-9038 was filed by Jeffrey Swanson on November 25, 1977, based upon his actual discharge during the previous month. On January 6, 1978. a complaint (January complaint) issued pursuant to this charge alleging that the termination of Swanson's employment was viola- tive of Section 8(a)( I ) of the Act. 5 Although some of the events with which this proceeding is concerned took place in Respondent's Rosslyn office, most occurred in its Rockville office. Accordingly, all references to Respondent's office or branch relate to its Rocksille operation. On February 7, 1978. Swanson filed the charge in Case 5 C(A 9191. On this charge a complaint issued on March 17. 1978. (March complaint) alleging that Swnsonl was constructivelv discharged otn JaInuary IX. 1978. in violtion of Section X(a(4) of the Act. B, order dated March 21. 1978X. the Januar and March conlplaints were consolida ted or hearing. . RII IMINR tN I I)iN sNI) ON( II it INS A. R,sond1.'n' Bs i c, tie sL'Xplnswl o i .Sali F)'c. til l/1t' Rcah iinmewl o/f Saole, 7Trriohrws Respondent. whose corporate headquarters are located in Valhalla. New York, is engagedi in selling and renting busti ness machines. mainly copiers. throughout the nited States At Respondent's Rockville tffice. its sales force is divided into two segments. one dealing wsth commercial concerns and the other with Government agencies. includ- ing the I nited States Senate and House of Representati e s. This case is concerned with Respondent's (o ernmnent sales representatives stationed at its Rockville ofttice. lach such representative is assigned to a particular territor consisting of specific agencies. In 1977 Respondent developed a plan tor increasing its government sales volume in 1978. This end was to he ac- complished by soliciting orders from agencies which had not previously done business with Respondent. expanding the number of sales representatives in Respondeni's otffices dealing with Government agencies. and realigning, reduc- ing, or splitting the territories of incumbent representatives to provide areas in which the new sales people would work. Respondent's purpose in doing this. as William LordJ. Re- spondent's branch manager, explained, was to enable Re- spondent to obtain a "deeper penetration of government accounts. As applied to Respondent's Rockville office, the plan en- visaged the expansion of its Government sales force front 9, the number emploNed in October 1977.7 to an ultimate total of 21. Early in 1978 Respondent began to implement its plan for increasing its Government sales volume insofar as it related to its Rockville office. On January 10, 1978. Respondent hired two additional sales people. M. Sager and Bogle. The territory assigned to Sager consisted of the Department of Energy. which had not previously been serviced by any sales representative, and the Department of Justice. which was removed from 6 Lest there be some confusion raised by the apparently inconsistent alle- gations of the January and March complaints it should he noted that Swan- son was reinstated on December 28. 1977. and worked until he resigned on January 18. 1978. The purpose of these findings and conclusions is to furnish a frame ol reference within which to consider the facts relating to Respondent's alleged unfair labor practices and to the conclusions to which they may give rise To the extent that the contentions of the parties relate to the findings and con- clusions made here they will he treated here, although they, as well as the findings and conclusions, may again be considered in other contexts As of October 20, 1977. the following people were employed in the Rock- ville office as Government sales representatives: S. Freeman. Charles Palmer. Ramon Acosta Janet Spadola. Mollie Irving. Steven Ober, Catherine Smith. Donald Strickler. and Jeffrey Swanson, the subject of this proceeding On October 20. the date of Swanson' actual discharge, his sales territory con- sisted of the Department of Health. Education and Welfare. ('apitol Hill. and the Department of the Air Force. 9 D)F(ISIO(NS 01 NAI I()NAI. I.ABOR RI.Al IONS BOARD Freema n's territory Bogle was given the (' i il Service ('oim- mission. territory previously within O()her's bailiwick. I'ort Myer, which was taken from Acosta, as well as two agen- cies, the Equal Employment Opportunity Commission and the Tariff' Commission, not earlier covered by any sales rep- resentative. On the same date changes were made in territories of sales representatives already in Respondent's employ. hus. the Interstate Commerce Commission wvas taken from ()her and given to F:reeman and ai portion ol' the I ouse of' Repre- sentatives served by Swanson was removed iroun his terri- tory and assigned to Spadola. By April 1978. Respondent's sales orce had grown to 14.9 Among the newly hired people were [). Witte, J. Nor- mile, and C. Lockard. Some of the agencies assigned to the new salespersons had not previously dealt with Respon- dent. In addition. new salespeople were given territories carved out of areas served by sales representatives working for Respondent at the time the new people were hired. Re- garding this, several sections of the I)epartment of' Labor and the Small Business Administration were taken frol Ober and given to Witte: Normile received the ('ivil Service Commission and the Fqual LEmployment Opporlunlty Commission, which were taken froml Bogle: and Srickler's territory was split by removing from it some hranches oI' the National Aeronautics and Space Administration. the Fed- eral Communications C'ommission, and the Securities and Exchange Commission, all of which were alloted to ock- ard. Also split was the territory served by Smith. rom which various agencies of the Treasury Department. some divi- sions of the Department of the Interior, and the Govern- ment Printing Office were severed. These were placed in limbo, so to speak, for assignment to a sales representative to be hired in the future. B. Respondent' ' New Compensation Program A portion of the compensation received by Respondent's Government sales representatives is derived from commis- sions on copiers they sell or rent. The agreement pursuant to which a copier is rented is renewed from time to time. Before October 1977 the salesperson who was instrumental in placing the machine in an agency office received a com- mission of $100 on the renewal. Early in October 1977, at a sales meeting attended by Respondent's Government sales representatives, they were informed by Michael Alvarez, Respondent's branch Gov- ernment sales manager, that Respondent had under consid- eration a new compensation program which probably would not include renewal commissions on copiers rented to Government agencies. At a subsequent sales meeting held on October 14. 1977, Respondent's new compensation program was announced. ' Not included in this number are Sager and Swanson, who in April were no longer on Respondent's sales staff. No evidence was adduced to show when, and under what circumstances Sager left Respondent's employ Swan- son, as already noted, resigned on January 18, his resignation being alleged in the March complaint as having constituted a constructive discharge in violation of Sec. 8(aH4) of the Act. As foreshadowed b Alvarez at the earlier meeting. the new program made no provision or commissions on rental renewals. It provided, instead, as set forth in a document"' given to each (overnment salesperson. for the payment of a "nmonthly commission of $15 per rental machine . . . over a base population loftl ()'; of the installed rental population in that territory." (. 71T' t'rtl'rc o'Jl[rev .XSwtl'rton '-s lir iviv ' I lie inforlmation reported by Michael Alvarez, Respon- dent's branch (ov ernment sales manager. at the sales meet- ing held earl i October 19771' concerning the probable loss of rental renewal commissions disturbed, dismayed. arid confused the G(overnment sales people. As Jeffrey Swansoll put it, "the sales force was pretty irate about the [program's] basics." After the meeting. Governnient sales representatives, in- eluding Swanson. had lunch together. uring lunch they expressed their dissatisfaction not only with the impending loss of renewal commissions, but also with other matters, described bh Swanson as "grievances" concerning their vworking conditions. The upshot o the luncheon session was a decision hb those present to meet again for the purpose of further dis- cussinig the new compensation program after it was for- usally announced. Swanson undertook the task of making arrangements for this meeting and of inviting absent sales representatives and other employees of Respondent to at- tend. In this connection, Swanson testified that he "was kind of spokesman for everybody [and] took upon himself the fur- ther bringing of everybody together." Although the evi- dence does not confirm Swanson's assertion that he was the "spokesman for eerybody," I find that he pulled a laboring oar and played a leading role in "bringing . . . everybody together" lor the meeting. Thus, within a few days follow- ing the unveiling of the new compensation program on Oc- tober 14. Swanson, in accordance with his undertaking. chose October 21 as the date ftr the meeting, selected the place at which it was to be held, informed employees of what he had done in this regard, and invited their attend- ance. Among the employees Swanson asked to come to the meeting was Harry Eisenberg a salesmen in Respondent's employ who called on commercial accounts. Not only did Swanson and Eisenherg talk about the forthcoming meet- ing, which Eisenberg agreed to attend, but they also de- cided to prepare what Swanson described as a "grievance letter" and send it to Respondent's corporate headquarters. Respondent contends that Swanson's conduct respecting the meeting was not concerted. It also contends that his activity was not protected because, as Respondent states on brief' it was not "associated with labor organizations cov- ered under the Act." 0 ;G.. Exh. 3. 1 As noted. the eneral (Counsel contends that Swanson was discharged fir engaging in activity protected by Section 7 of the Act and that the termi- nation of his employment for this reason was violative of Sec. 8(at 1). This being the case, findings concerning the nature of Swanson's aclivit) are nec- essary. 12 All dates referred to in this ection fall within 1977. 94 SAVIN BI SINEtSS MA(IIINI (CO()RP. Respondent makes a two-pronged argument in support of its position that Swanson's activil t was not concerted. It alludes first to his not having been the spokesman lfor the sales force. The second prong of Respondent's argument that Swanson's activity was not concerted is its assertion. unsupported by the evidence, that Swanson spoke onl to Eisenberg about the meeting he was setting up to provide a forum for further discussion of Respondent's new compen- sation program. That Swanson was not the spokesman of Respondent's sales representatives is of no consequence in determining whether his activity fell within the ambit of Section 7 of the Act. Carbet Corporation. 191 NLRB 892 (1971). It is sufli- cient in this regard that Swanson was involved with other salespeople, as I have found, in discussing the loss of com- missions on rental renewals as a result of Respondent's new compensation program. Continlental ('heriical (omplanv, 232 NLRB 705 (1977); Reading Iospital and Medical ('en- ter, 226 NLRB 611, 612 (1976), enfd. 562 F.2d 42 (3d Cir. 1977). Nor is it consequential insofar as Section 7 of the Act is concerned that Swanson spoke only to Eisenberg about the meeting he was arranging, assuming this, as Respondent claims, to have been the fact. although it was not." Con- certed activity within the meaning of Section 7 requires "only a speaker and a listener." Salt Rier V'alle 'Water Users Associalion, etc., 99 NLRB 849, 853 (1952)., enfd. in this respect 206 F.2d 325 (9th Cir. 1953). Therefore, even were I to find, as Respondent asserts without eidentiarv support, that Swanson spoke only to Eisenberg. his activity would have been concerted. Therefore, I reject Respondent's contention that Swan- son's activity was not concerted. I also reject Respondent's contention that Swanson's ac- tivity was unprotected because it did not contemplate the organization of a union among Respondent's employees. " The short answer to this argument, as Sall Ri,cr l'all/, Water Users' Associalion v ..R. R., 206 F.2d at 328 teaches, is that " 'activities for the purpose of... mutual aid or protection' [within the meaning of Section 7 of the Act] are not limited to union activities." Regarding this precept, it was held in N.L. RB. . Phoe- nix Mutual Life Insurance Company'. 167 .2d 983. 988 (7th Cir. 1948). cert. denied 335 U.S. 845. that employees' con- duct unrelated to the establishment of a union is. neverthe- less, protected if it bears "a reasonable relation to condi- tions of their employment." It cannot be gainsaid that Swanson's conduct respecting respondent's new corimpensa- tion program fell within this principle. Accordingly. I conclude that Swanson's activity regard- ing Respondent's new compensation program. including his efforts in connection with the meeting which wias to b held on October 21. 1977. was both concerted and prolectled within the meaning of Section 7 of the Act. ° As I hase fIund. Sanson poke not onl, ISo ti inherg. h ilo t i lhei emplo)ees I,) apprise Ihem o, Ihhe mealng and io S illit Ihcir ilitcddi.lr t 14 ttI.ever. ais ell appear helu., S ,nso.l ., a h. d , hirged (,, Ot),I r )20 because 'illianl It rd. Respo.ndenl's hr.lnch nl;anger . Ihulghl he v; Ii, ng It form a union IiI AI I li(i I R I A()R P'RAII('I-S5 A. /',it Is ( 'nt (erning Rt.espontdenlt' 4 leged I /aotion o/ .S' )tl N(a)( I) oft/' . i hi1 .4 ta/flli Dt haring Jet/icv s 'tl.st)n Jeffrey Swanson was hired b Respondent as at (overn- ment sales representative on No\ember I. 1976. lie was discharged on October 21. 1977." .\s lreladx notled. during this period of' Sw;alsson's emplos\rmeni b. Respondent. is sales territor clonsisted oi the I)epalimenll O(' Hlealth. lIdu- cation and Welfalre. ('apitol lill. and the )epairtment of the Air Force. While in Respondent's cniploy S;anlsofn v: is giLs en to using strong. intemperalte language. relerring to Respon- dent in derogatory terms, and maki ng crude and cx 11ual . oriented remarks to female office emplo es. Fl:r these rea- sons and because of' complaints received rom temlale em- plosees during the spring of' 1977 concerning Swanson's be- havior tlward them. Willi;am lord, Respondent's branch manager. instructed Robert Baily. in April 1977. to dlis- charge Swansonll. Instead of doing so. Bailey. after a conference with Swkan- soln n April 29 during which Swanson tol d Bile iIs the ;ltter relaled. that his conduct woild improse if gi en "an- other chance," placed Swanson on probath;ion tr 30 days. But Swanson'S conduct did not improve. As tihe s dlence showus, only in the maniner in which Swainson spoke to tfe- male employses did he better his dleportmcnt. After Swanson had completed his arrangements tIr the October 2 I meeting at x hich Respondent's sales representa- lives were to discuss agtiin Respondent's ne% compensation program. ' Respondent's Br;llnch Manager l.ord queried of- fice emplosees concerilng their knowledge of the meeting. I.ord asked whether they "had heard anything ahbout .lJeff Swanson's meeting.'. " On October 20, a day before the meeting was to he held. Michael Alxarez Respondent's branch Government sales manager, dscharged Swanson. In doing so Alvarez told Swuanson. ias S ansllm testified. that "L.ord want[ed himl fired . . . because hlie sl Itring to form a union. " ' ' All dat. hereinatlcr refetrred t n this nd the ikiliulng setliins .al wilhin 1977 ' \1 the illile ti;lis 1u.l Sal.-in', uprSl 15)r tFindings is ( t h,e lIlead heerl Itliade '" T'he linding Ihl pragraph .ire hba.ed upon. and he qliloltliolns ai- pearing in the exlt re taken fonm. Iestinlorl\ gisen h Shar.n ('oler alId l.isa ('ook 1s he re;isons fr SsAlnsoll's disih arge gen h l.ord and -1I arei diffHred nol (onlis trom the nce Su.an,ln ilied ws glen him h Alsare. hult ai.,l 'rm1 each other I hus. I rd eilfied. sh,,houl eahorlrtl., tha.t S.II1I,)1) .si dtscharged Ir his "laclk il h>,l" tii Repindenl iandlI fior 'nli ,lher ra.l '.Ills l" l;re/ uho ele-ectl.lci Su. anson's di-charge. testfied th.at he did , beciuse at hi, Ci0utrtlte lilt Sinson oI October 2. the proe .l wlhich, Alare saidt .is I distlsOs s.lles ntiters Sallisu \s, 11 Ilsrepecttul tO him and t. Respndcint tI e disc repant re.lasnsi .lslgne hIi I rd ind Alro I,r h r unt e te th hI.lh ere dlieinlhhng I heretllre I beheit neither here I a urther hsls 1kl ris dscredillng -M'.lsatc a tueril ncorlsistefle htween * i.rez' Irlil lIre llliO s ai.d hi, pretrJil atlfd.l il ((, ' I xh 9) \ lthmigh :Mx are, le,lfied hil1l hie .111Iilc Su.tIll(si n IIt' It .thic ti Ocilher '2) t.- "reicU, ,Is Istl hii tnlllthlk i .dlo ll Oh'ells l tr 'nt) 'ther r ..un' i1t his pretrial atlidai ilte ,sre Ili.t he unlIllI,,nlcd S n., tOlti It his oIli, l. Ilt i. ".to tell hii . l l .ttplltll 1t. h a 1 1td rcetixed tritil slic tcriplh),,ees Iit S, ntll sO11 Is 11si Ig IbI111 0 lIle I.ilIglgC' It sI1uidI(I ht' i Itd, i III 11 toilletlOllt. htI.I n.l l \ III -IlllIrl;1. 11i1l i1ill IJ\ \b.lr II hi' .tidl\lll UCele "J.i.l .111 I(, tflfltl/) I)I((ISI()NS ()1 NAII¢)NAI. I.ABOR RLAHIIONS B)ARI) B. (mrluding linin.s (',o'm 'rni R poodm '.s Ilcgcd I iohltiti ol S'ccliol l (i)( I) of'l h' .it l t1' ftI rIl//li iVY('t h(r tiI itJ re .'/t' S'I (I .S11 laving credited leti'rev Swanson's testinmony concerning the reason for his discharge as stated by Michael Alv arez, Respondent's branch (iovernment sales manager, I find that Swanson's employment was terminated on October 20, 1977, because of his activity, protected, as earlier found. by Section 7 of' the Act, regarding Respondent's nevw compen- sation program. including his having arranged the meeting scheduled fr October 21, at which the program was to be a topic for discussion. Although Alvarez articulated the caluse for Swanson's discharge in different language, i.e., that Wil- liam Lord. Respondent's branch manager. wanted him "fired for) trying to form a union," it is clear rom the context that Lord equated the meeting set up by Swanson with an attempt by him to organize a union among Respon- dent's employees.-" Accordingly. I conclude that by actually discharging Swanson on October 20, 1977, for engaging in activity pro- tected by Section 7 of the Act, Respondent violated Section 8(a)( I ). C. lclts (Concerning Respondent's Alleged 'iolation of/' Section (a)(4) of the Act hi' (Constructive/l Discharging JeclJ"or St nson On November 25. 1977, Jeffrey Swanson filed a charge based upon his discharge the previous month. On Decem- ber 26, 1977. Swanson received a telegram from Respon- dent, signed by Michael Alvarez, Respondent's branch Government sales manager, requesting him to return to work the next day. Swanson complied. On December 27, the day on which Swanson resumed his employment with Respondent, he conferred with Alvarez concerning the terms pursuant to which he had been reem- ployed. During the meeting Alvarez gave Swanson a docu- ment2' headed by the words "Hire Information," stating, in part, that Swanson would have the "Same accounts as of Date of Termination" and that his "Commission Program will be the same program which became effective October 1, 1977." Although the telegram requesting Swanson to return to work was sent by Alvarez, it does not appear that Alvarez informed any of Respondent's officials, including Charles Debbie," office employees who, as I have found. complained about Swan- son's "abusive language" some 6 months earlier and toward whom Swan- son's behavior, as I have also Ibund, had ameliorated soon after his confer- ence on April 29 with Bailey, then his supervisor. This being so, it seems unlikely that Alvarez, on October 20, would have dredged up this stale and no longer viable matter. Accordingly, I credit Swanson's testimony as to the reason give by Alvarez for his discharge and discredit the contrary testimony given by Lord and Alvarez. o0 Given Lord's knowledge of "Swanson's meeting," as he characterized it in questioning Respondent's office employees, and given, also, L.ord's lack of expertise in labor relations matters, as appears to be the case, his conclusion, albeit a mistaken one, that Swanson's purpose in arranging the meeting was "to form a union" is understandable. In any event, as was stated in The Lile Rock Downioer, Inc., 145 NLRB 1286. 1287, 1293 (1964), "It is well settled that ... the discharge of [an employee because of a mistaken belief that he was . . .active in a union violates the Act." G.C. Exh. 5. Zeitzolfl then a sales manager flr Respoldcnt. that he had donte so. Accordingly, when Zeitzl' saw Sanson in Re- spondent's office on D)ecembcr 27. he asked Barbara lIitz- gerald, Respondent's branch administrator. in Swanson's hearing. as Zeitzoff testified. "[Wlhat the hell is [Swanson doing here." ,IAvarez' neglect il notil\'ing Respondent's sulperCisory personnel that Swanson would return lto work on [)ecember 27 and Respondent's hiring, during S anson's absence a receptionist who did not know him caused Swanson to ex- perience some incoiveniences on his first few days back on the job. Among these was a lailurc b\ the new receptionist because she did not know hin. to give Swanson telephone messages, and, as Swanson rel;led. his not rcceiving "in- structions management ,ise." William ord. Respondent's branch manatger was aal from Respondent's office during the initial period of S4aln- son's reemployment. On Januar 6. 1978.2' upon ord's re- turn, he, Zeitzotl' and Alvarez24 met with Swanson. 'lhe purpose of this meeting, as ord testified, was to "welcome ISwanson] back into the company": to "cut down the obvi- ous hostilities" engendered by Sswanson's transactions with the National abor Relations Board-' and to acquaint Swanson with new administratti e procedures instituted b-l Respondent during his absence. While the meeting was in progress Swanson asked l.ord for the backpay he thought he vas entitled to as a result of his discharge. Lord responded, as lie relalteC that he "would have nothing to do" with that matter because it was "being handled by [Respondent's] lawyers and the National I.abor Relations Board." Ilowever Iord offered to give Swanson an advance on his commissions. On January 10 Respondent announced to its Govern- ment sales frce its new plan for increasing its sales to (Gov- ernment agencies, which, as earlier noted. involved the hir- ing of additional sales representatives and reducing. realigning, and splitting the territories of incumbent sales- people. As already found, as applied to Swanson it resulted in the removal from his territory of' a portion of the tHouse of Representatives. As also found, other sales representa- tives also lost territories they had previously covered. Being dissatisfied with the reduction of his territory and feeling that since his return to work he had been mistreated in other respects. Swanson quit his employment with Re- spondent on January 18, 1978. In his letter of resignation2 ' Swanson made reference to "Zeitzottfs off hand remark to Barbara Fitzgerald on Ihisl first day of reinstatement 'What the hell is he doing here?' ": his being "totally ignored dur- ing the first two weeks of reinstatement"; and Respondent's "failure to abide by the Fair Labor Relations Board's deci- sion in regards to back pay."" The final reason for his quit- ting appearing in Swanson's letter of resignation and the one he characterized as being the "most important" was, as 22 On January I1 1978, Zeitzofl succeeded Alvarez as branch Gsovernment sales manager and became Swanson's supervisor. 21 All dates subsequentl? mcnioned without stating a sear a1ll within 1978 2- On January I Alvarez was promoted to the position ot regional manga- ger for federal marketing. 2 G.C.Exh. 6 2, Respecting this, no evidence was adduced showing that the Board had made a decision regarding Swanson's hbackpal ')6 SAVIN BSINESS MACHINE CORP. Swanson put it. Respondent's "failure to reinstate [his] sales territory . . . and the removal of [its] most profitable seg- ment." D. Contenlions and C('oncluding Findings Concerning Respondent 's A legedl 'iolatlion ol' Section 8(l4) hi, Cornstructiel, Discharging Jffrel Swanton Echoing Swanson's letter of resignation, the General Counsel contends that his quitting was engineered by Re- spondent in retaliation for his having filed a charge based upon his actual discharge on October 20, 1977. and. hence. constituted a constructive discharge in violation of Section 8(a)(4) of the Act. I do not agree. In support of his position the General Counsel, in brief. refers to the "hostile atmosphere created by Respondent" in which Swanson was required to work following his rein- statement and to the "split[ting up loll Swanson's terri- tor'." Even if a "hostile atmosphere" had been "created by Respondent," which I do not find to be the case,' it would not, as I view the evidence. have caused Swanson to quit. In my opinion. what did cause Swanson to quit was the reduction of his sales territor. Hlad Swanson been the only sales representative to lose territory in the implementa- tion of Respondent's plan to increase its Government sales. it might be reasonably concluded that the loss was attribut- able to his having filed the charge and that his quitting for this reason constituted a constructive discharge in violation of Section 8(a)(4) of the Act. But this is not the situation presented by the evidence. As has been found, starting on January 10. 1978. and continu- ing even after Swanson's resignation, there was an ongoing program of rearranging sales territories in the course of which sales representatives in addition to Swanson lost ac- counts. Having, in this respect, treated Swanson no differ- ently than it treated other sales people. Respondent cannot be said to have discriminatorily singled out Swanson, in violation of Section 8(a)(4) of the Act, for a territory loss to retaliate against him for having filed a charge against it.2 Nor, in the circumstances, can it be said that Swanson was constructively discharged. Accordingly, I conclude that Respondent did not con- structively discharge Swanson. I further conclude that Re- spondent did not violate Section 8(a)(4) of the Act. My Order will, therefore, provide for the dismissal of the March complaint. VI. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICE UPON COMMERCE Respondent's unfair labor practice, occurring in connec- tion with its operations set forth in section I. above. has a close, intimate, and substantial relationship to trade, traffic, " In this regard. as I have found, Swanson experienced some inconvenien- ces upon returning to work. This was caused by the abruptness of Swanson's reinstatement and Respondent's having hired a receptionist before San- son's recall who did not know him. In an) event, these irritating matters were of relatively short duration. 25 This. it will be remembered, was charactenzed in Swanson's letter of resignation as the "most important" reason for his quitting. " "Discrimination consists in treating like cases differently." Fros.t Morn Meas, Inc v . .I R. B., 296 F.2d 617, 621 (5th Cir 1961). and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. IHE REIEDY I have found that Respondent engaged in an unfair labor practice within the meaning of Section 8(a)( I) of the Act. My Order will, therefore, provide that Respondent cease and desist therefrom and take such affirmative action as will effectuate the policy of the Act. Regarding the latter. inasmuch as Jeffrey Swanson. who was unlawfully dis- charged on October 20. 1977, was reinstated on December 27. 1977. Respondent will be required only to make him whole for any losses he may have suffered by reason of his discharge. Any backpay found to be due to Sanson shall include interest in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).' Upon the basis of the foregoing findings oft' fact. and upon the entire record in this case. I make the following: CON(I UtSIONS ()I LA I. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The activity engaged in by Jeffre3 Swanson in connec- tion with Respondent's new compensation program, includ- ing his efforts at arranging the meeting which was to be held on October 21. 1977. fell within the protection of Sec- tion 7 of the Act. 3. B discharging Jeffre Sanson on October 20. 1977. for engaging in the activity referred to in onclusion of l.aw 2. above. Respondent committed an unfair labor prac- tice \within the meaning of Section (a (l) of the Act. 4. Respondent did not constructively discharge Jeffrey Swanson on January 18. 197X8, 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 6. The unfair labor practice committed by Respondent, as set forth in Conclusion of Law 3, above, affects com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record. and pursuant to Section I(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent. Savin Business Machine Corporation. Valhalla, New York, its officers. agents, successors, and as- signs shall: 1. Cease and desist from: (a) Discharging., suspending, taking any other disciplin- ary action against, or in any manner affecting adversely the ")See, generally. Isis Plumbing Heating Co.. 138 NLRB 716 (19621. I' In the eent no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions. and order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted b) the Board and become its findings. concll- sions, and Order. and all objections thereto shall be deemed waived for all purposes DECISIONS OF NATIONAL LABOR RELATIONS BOARI) hire or tenure of employment or any term or condition of employment of employees for engaging in any activity pro- tected by, or guaranteed in, Section 7 of the National Labor Relations Act. as amended. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to sell: organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities, except to the extent that such right ma he affected by an agreement requiring membership in a labor organization as a condition of employment in conflrmit with Section 8(a)(3) of said Act. 2. Take the following affirmative action which. it is found, will effectuate the policies of the National L.abor Relations Act, as amended: (a) Make Jeffrey Swanson whole, in the manner set ftrth in the section of this Decision entitled "The Remcedy.- for any loss of earnings he may have suffered by reason of his unlawful discharge. (b) Preserve and, upon 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 neces- sarv to analyze the amount of backpay due under the terms oft this order. (c) Post at its premises in Rockville. Maryland, and Rosslyn. Virginia, copies of the attached notice marked ",Appendix."' 2 Copies of said notice. on forms provided by the Regional Director fbr Region 5. after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof: and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced. or covered hb any other material. (d) Notifv the Regional Director for Region 5. in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. II IS I'RnllR (ORI)R-I:I) that the complaint issued on March 17. 1978, in Case 5 CA 9191 be, and the same herebs is. dismissed. 32 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 bs Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of' the United States (Court of Appeals Enforcing an Order of' the Na- lional L.abor Relations Board. 98