Henning and Cheadle, Inc.

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henning and Cheadle, Inc. and Pat Barac, Case 7- CA-10747 August 8, 1974 . DECISION AND ORDER By MEMBERS FANNING, KENNEDY. AND P1 NELLO On April 12, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs to portions of the Administrative Law Judge's Decision. Respon- dent further filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The Administrative Law Judge concluded that Hammond, Respondent's supervisor in its data entry department, discharged employees Barac and Sosa in the belief that these employees were engaged in a concerted work stoppage designed to demonstrate their dissatisfaction with Respondent's supervisory policies. The Administrative Law Judge further found that such concerted activity, had it occurred, would have constituted activity protected by Section 7 of the Act in accordance with the Board's decision in Dobbs Houses, Inc.' Respondent excepts to both conclusions, contend- ing (a) that the discharges were motivated by Hammond's belief that these employees were at- tempting to undermine Respondent's production deadlines and, therefore, the discharges were justified and (b) assuming arguendo that Hammond believed the work stoppage was related to an employee protest over Respondent's supervisory policies, such concert- ed activity does not fall within the parameters of em- ployee rights under Section 7 of the Act. It is undisputed that Hammond's predecessor, Grant, was well liked by the employees of the data entry department and, whatever Grant's motivation in deciding to resign her position, it is equally clear that many employees believed her resignation to have been forced by Respondent's refusal to make various concessions sought by Grant for the employees in- 1 135 NLRB 885, enforcement denied 325 F.2d 531 (C.A. 5, 1963). valved herein. According to, Sosa, Grant, in a meeting with all employees in her department, stated "she didn't make up her mind, Tanner [the immediate su- perior of Grant, and, subsequently, of Hammond] had made up her mind . . . she asked for raises for us and they wouldn't give it to her. She asked for a better room and they wouldn't do it. She asked for them to paint the room, they wouldn't do it. She asked for carpeting on a floor, better machinery; they wouldn't do it." Dissatisfaction with Grant's "discharge" led several employees, including Barac and Sosa, to discuss the possibility of a walkout designed to force Respondent to take whatever action might be necessary to retain Grant as their supervisor? In an interview with a ma- jority of the employees, including Sosa, Tanner was told of this discontent and voiced the hope that the employees would not engage in a walkout in support of Grant. Hammond herself testified that several em- ployees had similarly expressed their dissatisfaction with Grant's leaving in the course of individual inter- views she conducted with department employees soon after taking over Grant's supervisory functions on November 5, 1973. Within less than 2 weeks after Hammond replaced Grant, considerable changes had been made in the working conditions of the employees in Hammond's department. Under Grant, these employees were per- mitted to maintain flexible working hours and to for- go a company policy requiring the punching of timeclocks and, generally speaking, production dead- lines were not considered of crucial importance. Un- der Hammond, these policies were changed. Thus the inference by the Administrative Law Judge that Ham- mond, during the critical events of November 14 and 15, was aware of the resentment her presence and Grant's absence had caused is warranted. On the evening of November 14, Barac and Sosa, along with several other employees of Respondent, attended a party in honor of Grant at an area cocktail lounge. The party coincided with a production dead- line date for which Hammond had requested several employees to work overtime. During the course of the evening, several employees had too much to drink. Sosa indicated that it was unlikely she would be able 2 The dissent does not, in our view, properly characterize the nature and extent of this employee discussion of a walkout . Both Sosa and employee Kapanowski testified that all the employees initially discussed the possibility of a walkout but, in Kapanowskt's words, "after awhile those discussions were rather cooled off. There wasn't quite enough support in the department for a walkout but they decided that they wanted to make some kind of protest to let management know that they were unhappy." We also would not characterize these discussions as, in the dissent's words, "meaningless , since Grant's resignation was not forced " As we noted in Dobbs Houses, Inc, supra, the employees' assumption that a supervisor had been discharged was the relevant consideration, as opposed to an actual discharge, in determining whether subsequent employee action constitutes protected concerted activity 212 NLRB No. 109 HENNING AND CHEADLE to report to work the following day, whereupon sever- al employees, including Barac, bet her she would show up the next morning. Both Barac and Sosa failed to report the following morning. Barac, who had a different starting time than Sosa, initially called in to find out whether Sosa had reported to work in order to determine if she had won her bet. She was told that Sosa was out, having called in sick. Later that morn- ing Barac, still prior to her starting time, called in sick and, this time, was informed by Hammond that she was fired. Hammond testified that she told Barac she was aware of the prior evening's bet and knew Barac was not sick and that Barac was aware of the deadline. Sosa called in sick again on the following morning, November 16, and was terminated by Hammond for the same reasons. Significantly, Tanner, Hammond's immediate su- perior, testified that it was not unusual for deadlines to be extended and that, up until the time of the hearing, the only terminations in the data entry de- partment were those of November 15 and 16 and that, in subsequently discussing the discharges with Ham- mond, the latter expressed the view that the employ- ees were trying to get her to quit. Employee Kapanowski, similarly terminated,' testified that Hammond told her she was "influencing the other girls" and that she couldn't "tell me its coincidental that the other girls didn't come into work." Our dissenting colleague would overlook the proba- tive value of this evidence by contending that it is unclear whether Hammond thought the girls "had deliberately gotten drunk . . . or that they weren't incapacitated at all." We think it clear that Hammond held the latter view. It would seem extremely logical for Hammond to have indicated her view that the employees were "drunk." Indeed to have dismissed the employees for that reason alone would have been altogether proper.4 Instead, Hammond consistently offered the view that she "knew the employees were not sick," that she "knew about the bet" and "couldn't be told it was a coincidence" that the other girls at the party didn't come to work. From this the dissent is, forced to conclude that Hammond may well have meant that she knew the employees were drunk but did not consider that a "sickness." Even less persua- sive is the alternative theory advanced by the dissent, that Hammond may have felt the employees had ar- ranged to get drunk in order to have an excuse for not reporting to work. Why the employees would actually have to get drunk, as opposed to calling in and saying they were drunk is not entirely clear. What is clear is 3 Kapanowski , who had announced her intention to resign a day later, November 16, 1973, was not named a discriminatee by the General Counsel, apparently because the violation , as to her, was considered de minimis d See In , 6, infra 777 that Hammond felt "harassed," could not "be scared easily," and thought the girls were "making it rough on her." Apparently, our dissenting colleague would agree that this evidence could "be said to show that Ham- mond thought the conduct of the girls of November 14 and 15 was concerted." Thus, the major thrust of the dissent is that such concerted activity, had it oc- curred, does not enjoy the protection of the Act be- cause of the absence of a "lawful purpose," a purpose, in the dissent's words, "of harassing [Hammond] so as to force her to quit." The absence of any authority cited by the dissent for the proposition offered is, no doubt, the result of the Board's consistent holding that "any rule which would base the determination of whether a strike was protected upon its reasonableness in relation to the subject matter of the "labor dispute" is a rule with which we disagree.' Underpinning that view is the realization that any employee protest has characteris- tics of "harassment" from the vantagepoint of those against whom the protest is directed. We have consis- tently held that "concerted action by employees to protest an employer's selection or termination of a su- pervisory employee" (emphasis supplied) is protected action where "the identity and capability of the super- visor involved has a direct impact on the employees' own job interests " 6 Thus, whether Hammond con- sidered the protest an "harassment" is not so impor- tant, in our view, as the evidence indicating she considered it a protest directed at her supervisory poli- cies. In the same vein is Respondent's contention that the discharges were justified insofar as Grant was an inefficient supervisor and the new conditions-of em- ployment instituted by Hammond were designed to correct such inefficiency. But whether or not Grant was inefficient or the changes in working conditions instituted by Hammond redounded to the benefit of Respondent or even its employees is not germane to the present inquiry, for it is well settled that in the determination of the existence of a labor dispute the wisdom, necessity, justification, or reasonableness of the employees' decision to take concerted action is irrelevant.' Here, although it is uncontroverted that these discriminatees did not, in fact, engage in con- certed activity, in agreement with the Administrative Law Judge, Respondent's belief that such concerted activity had occurred is controlling.' 5 See Plastilue Corporation, 153 NLRB 180, 183 (1965), Kelso Marine, Inc, Kel Stress Division, 199 NLRB 7 at In 20 (1972), Okla-Inn, d/b/a Holiday Inn of Henryetta, 198 NLRB No 68 (1972) 6 Dobbs Houses, Inc, 135 NLRB at 888 See also Plastilite Corporation, supra, Okla-Inn, supra, Kelso Marine, Inc, Kel Stress Division, supra 7 See N L R B v Washington Aluminum Co, Inc, 370 U S 9, 16 (1962); N L R B v Mackay Radio & Telegraph Co, 304 U S 333 (1938) 8 See, e g. San Juan Lumber Company, 144 NLRB 108 ( 1963) In this case, 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We conclude, then, that employees Barac and Sosa were terminated because of Hammond's erroneous belief that they had engaged in a concerted work stop- page in protest over Respondent's supervisor policies, that the identity and capability of their supervisor had a direct impact on their working conditions, and that such a work stoppage, had it actually occurred, would have constituted protected activity under Section 7 of the Act. 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 Order of the Administrative Law Judge and hereby orders that Respondent, Henning & Cheadle, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. MEMBER KENNEDY, dissenting: In the middle of October 1973, Valerie Grant, su- pervisor of the data entry department, announced that she was resigning effective November 1, 1973. Several girls who worked under Grant's supervision and with whom she was popular were under the im- pression that Henry Tanner, data center manager, had forced the resignation. These girls were upset and at first talked about a possible walkout in support of Grant, but, when sufficient support for this tactic did not develop, the girls decided on a meeting with Tan- ner to express their unhappiness. On October 16, the girls met with Tanner, out of the presence of Grant, and asked him to talk to Grant and try to persuade her to remain . Tanner did talk to Grant who told him that it was no use talking to her, and that she had made up her mind to quit. Apparently Grant was unhappy with the supervision exercised over her de- partment. Grant was succeeded as supervisor by Ginger Ham- mond on November 1, 1973. On assuming supervi- sion, Hammond met with the girls in her department and outlined what she expected to accomplish, includ- ing a tightening of discipline. Thus she told the em- ployees that she expected them to punch in and out at the beginning and end of their work periods and at we further pointed out that it was within the employer's authority to dismiss the discriminatees involved because of their failure to report to work-but not because they had engaged in protected concerted activity Similarly, in the instant proceeding, it was within Respondent's entitlement to dismiss Barac and Sosa for failing to report on the evening of November 14 and on November 15, however, as in San Juan Lumber, we conclude such failure to report was not the motivating factor in Hammond's decision to terminate them lunch, to keep daily worksheets indicating the amount of time they spent on a project and to improve their attendance records. The 15th day of the month is an important deadline date for the department. On this date, all information relative to salesmen's commis- sions must be entered if salesmen are to receive their commissions on time. On November 14, the depart- ment was behind in the processing of sales slips which had to be completed by noon on November 15. Ac- cordingly, on the afternoon of November 14, Ham- mond asked for volunteers to work overtime that evening. In response to this request, employee Pat Barac, whose normal work period was from 12 noon to 8 p.m., agreed to work till 12 p.m. that evening. Another employee, Gloria Seats, had started on her regular workshift from 5 p.m. to I a.m. Both Barac and Seats left for a bite to eat at 8 p.m. It seems that on the evening of November 14 a number of girls in the department, including Barac, Seats, and Pascuala Sosa, went to a nearby cocktail lounge to attend a farewell party for Grant and to give her a gift. The party was very successful and lasted well into the following morning. Barac, Seats, and Sosa all drank too much. As a result neither Barac nor Seats returned to work that evening and did not tele- phone to explain that they would not be back. During the evening, Sosa said that she was drinking too much and that she thought she would not be able to work the next day; her working hours were from 8 a.m. to 4:30 p.m. Several of the other girls bet her that she would go in. At about 8 a.m. on the following morn- ing, Barac, who was according to her own testimony still drunk, telephoned the office to inquire about whether Sosa had reported for work. She explained to the employee taking the call about the party and the bet. She telephoned Hammond at 11:30 a.m., a half hour before her regular reporting time, to say that she was sick and wouldn't be in to work that day. Ham- mond thereupon said she was fired. Barac testified that she called Hammond back a few hours later and asked why she had been fired. Hammond answered that Barac was "undependable."9 Sosa, who was scheduled to start work at 8 a.m. on November 15, telephoned to say that she was sick and wouldn't be in to work that day. On November 16, she called again and said she was still sick and wouldn't come in. Hammond told her she was fired. Hammond testified: I told her that I knew that she was not sick. That I had heard about the bet that she and Pat Barac had had. I felt that she was just taking time off 9 According to Hammond's account, in her 11 30 telephone conversation with Barac , she told Barac that she was aware of the bet with Sosa and knew that Barac wasn 't sick and that Barac was "aware that there was a deadline to be met in the department" HENNING AND CHEADLE 779 to more or less keep the department from meet- ing deadlines that had been set. Gloria Seats had gone to dinner at 8 p.m. on No- vember 14 and had not returned as expected to work until I a.m. When she called the following day, Ham- mond told her she was terminated for not returning to work the night before. According to Hammond, Seats "knew there was a deadline and there was jobs to be done. You don't walk off of a job." However, Seats was reinstated after she appealed to Tanner and ex- plained that as a result of her drinking she had had an asthma attack and had to go to a hospital. The majority adopts the Administrative Law Judge's finding that the employees' conduct on No- vember 14 and 15 was not the result of concerted activity on their part and therefore did not come with- in the protection of Section 8(a)(1) of the Act. Howev- er, the majority finds that Hammond believed, albeit mistakenly, that the employees' absence from work "on November 15 was part of a continuing protest over Respondent's supervisory policies" and was therefore unlawful. To prove a violation, the General Counsel therefore has to establish by substantial evi- dence that Hammond believed that the employees were engaging in protected concerted activity by not reporting back to work on November 14 and by not reporting for work on November 15, and that but for that belief the employees would not have been termi- nated. This is a heavy burden and I do not believe that the General Counsel has sustained it.10 The majority finds that Hammond believed that the employees were engaged in a continuing protest over Respondent's supervisory policies. Apparently, ac- cording to the majority, the protest began in mid- October when some of the employees discussed the possibility of a walkout on first learning of Grant's resignation. However, this talk took place 2 weeks before Hammond assumed her position and a month before the discharges. Not only did this talk among a few employees fail to win the support of a majority of the employees, it was also meaningless since Grant's resignation was not forced; she was determined to resign as she told the girls and Tanner and could not be persuaded otherwise. Moreover, Hammond testi- fied without contradiction that she was never in- formed of Tanner's meeting with the girls at which mention was made of a possible walkout. According- ly, there is not only absence of any evidence of a continuing policy of protest over Respondent's super- 10 "While it is unnecessary for the General Counsel to produce direct proof of the employer's actual state of mind . facts must be such as to uphold an inference of the employer's discriminatory motivation " N LR B v Ford Radio & Mica Corporation, 258 F 2d 457, 462 (C A 2, 1958) visory policies, there is also an absence of any evi- dence that Hammond believed that there was such a policy. It is true that in conversations with girls some of them told Hammond that they liked her predeces- sor, Grant, liked the way she had supervised, and disliked her leaving. But this is a far cry from suppor- tive evidence of any inference that Hammond be- lieved the girls were engaged in a policy of protesting supervisory policies." Hammond's own account of the reasons given to the discharged employees for the discharges is as fol- lows: To Barac: I told her that I was aware that there was a bet on to whether Pascuala [Sosa] would come in today to work and I knew she wasn't sick. That she could come in and clean out her drawer be- cause she was terminated, that she was aware that there was a deadline to be met in the depart- ment. To Seats: I told Gloria [Seats] that since she had left the office at 8:00 o'clock the night before, never came back in, never reported to anybody, that I was going to terminate her. You know just for leaving, she knew that there was a deadline and there was jobs to be done. You don't walk off of a job. To Sosa: I told her that I knew that she was not sick. That I had heard about the bet'that she and Pat Barac had had. I felt that she was just taking the time off to more or less keep the department from meeting deadlines that had been set. . . . That she was terminated. Tanner also testified that Hammond told him she felt the girls were trying "to get her to quit and make it rough on her." Even if this testimony can be said to show that Hammond thought the conduct of the girls on No- vember 14 and 15 was concerted, I do not believe that it constituted "concerted activities for the purpose of . .. mutual aid or protection" within the meaning of "According to Hammond 's further testimony , not all of the girls ap- proved of Grant or were sorry that she had left She testified that the subject of Grant's leaving was just a matter of "general conversation , there was no heated battles or heated arguments on it In fact I heard it rarely discussed among the employees" 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act. Hammond knew of the party on the evening of November 14 before she fired the girls. It is not clear whether she thought that the girls had deliberately gotten drunk in order to have an excuse for not reporting back to work, or that they weren't incapacitated at all and had simply decided not to work. It is true that Hammond told Barac and Sosa, when they called to say that they wouldn't be in for work on November 15, that she knew they weren't sick. Indeed, she had the right to believe that they were only suffering from hangovers, which is not gen- erally considered a sickness.12 I am not aware of any Board decision which holds that concerted drinking to excess even for an otherwise lawful objective is a form of concerted activity protected by the Act. Moreover, even if she did believe that the girls were engaging in some other form of concerted activity, I do not consider that the concerted activity had a law- ful object. Tanner testified that Hammond told him she felt that the girls were trying "to get her to quit and make it rough on her." Hammond herself testified that in conversation with Sosa after the discharge Sosa said the bet did not mean anything. Hammond disputed this. Whereupon Sosa said that if they had had a real bet they "could make things so rough for me, that I would leave." Hammond replied, "I don't scare easi- ly." 13 Thus, the inference is warranted that, if Ham- mond did believe that the girls were acting in concert against her, she also believed it was for the purpose of harassing her so as to force her to quit. I do not believe that concerted activity for such a purpose enjoys the protection of the Act. Finally, in order to prove a violation the General Counsel had to establish that, except for the belief that the employees were engaged in concerted activi- ty, Respondent would not have discharged them for their derelictions on November 14 and 15. This is extremely hard to assume and I do not believe that the evidence supports such a supposition. The majority members imply that meeting deadlines was not very important. They refer to Tanner's testimony that it was not unusual for deadlines to be extended, but they omit his further statement that "it is important to have the deadline met, the same as it would be to have your pay check on time." If the midmonth deadline is not met, salesmen do not receive their paychecks on time. Hammond, in her first meeting with the girls in her 12 When Seats explained that she had become really sick as a result of her drinking and had to go to a hospital, her discharge was rescinded and she was reinstated to her former position although on probationary status. 11 Sosa's account of this conversation is that she belittled the bet as an adequate reason for the discharge and that Hammond had then said- "I'm sorry . . I don't scare easily " The scare statement doesn't make sense in this context It is a reasonable statement if Hammond 's testimonial account is accepted. department, stressed the importance she placed on deadlines. She testified, "When I have a deadline I do everything that I possibly can to meet it." If there is no evidence of other terminations for failure to meet deadlines, there is also no evidence of any such fla- grant misconduct on the part of employees as oc- curred in this case. It should also be noted that Hammond in November was a new supervisor who was trying to impress upon the employees the necessi- ty for improved discipline and tightening procedures to get work out on time. Barac and Sosa were not the only employees discharged by Hammond at this time. Employee Kapanowski who also attended the party for Grant called in sick on November 15 because she too had a hangover. Hammond discharged her on November 16 when she reported for what was to be her last workday. This discharge is not alleged to be unlawful. Hammond also discharged employee Tam- ara Fischer on November 15 because Fischer left work at 8 a.m. to keep a dental appointment without first receiving Hammond's permission, and because Fischer had harassed a new employee thereby causing her to quit. Fischer had not attended the party for Grant on November 14. The Administrative Law Judge found that Fischer's discharge was not discrim- inatory. The majority has adopted his finding. Thus, of the four discharges at the very same time, only two are found to have been discriminatorily motivated. This casts further doubt on the majority's conclusion that the failure of employees Barac and Sosa to report for work on November 15 "was not the motivating factor in Hammond's decision to terminate them." In San Juan Lumber Company, 144 NLRB 108, re- lied on by the Administrative Law Judge and by the majority, it was clear that the reason for the discharge of the employees was the employer's mistaken belief that the employees had concertedly decided to stay away from work in protest against the failure to re- ceive their paychecks on time. There was no question of employee misconduct. Similarly, in System Analyz- er Corp., 171 NLRB 45 (1968), the employer dis- charged several employees because of a suspicion that the employees had collaborated in writing an anony- mous letter to the company president complaining about working conditions. Again, it was clear that but for the employer's mistaken suspicion the employees would not have been discharged. Here, in contrast, employees had gotten drunk during mealtime and had failed to report back for work either that day or the day following because of their inebriated condition. Before imbibing, the employees knew that their super- visor was concerned about meeting a deadline and that if they failed to report back for work as expected disruption would occur. It seems to me unrealistic speculation to say, as the majority does, in effect, that HENNING AND CHEADLE but for Respondent's belief that the girls were acting in concert to protest Respondent's supervisory poli- cies they would not have been discharged for getting drunk and not reporting to work. I think most em- ployers confronted with a similar situation would fire the employees. Before I would be prepared to affirm the majority's finding, I would have to see some evi- dence that Respondent previously tolerated such mis- conduct by its employees. I know of no such evidence in this case. Accordingly, I dissent. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On November 20, 1973, Pat Barac filed with the Regional Director of Region 7 of the National Labor Relations Board, hereinaf- ter called the Board, a charge alleging that Automated Mar- keting Services, Computer Division, violated Section 8(a)(I) and (3) of the Act by terminating the employment of Pat Barac and two other employees because they engaged in concerted activities. On January 3, 1974, the Regional Di- rector for Region 7 issued a complaint and notice of hearing alleging that Henning & Cheadle, Inc., hereinafter called Respondent, violated Section 8(a)(l) by the discharge of the three employees named in the charge because they engaged in concerted activites protected by Section 7 of the Act. Respondent timely filed an answer denying the commission of any unfair labor practices but admitting the termination of the three named employees on or about November 15, 1973. On the issues thus joined the matter came on for hearing before me on February I I and 12, 1974, at Detroit, Michigan. All parties were present and represented by counsel and had an opportunity to call and examine wit- nesses and cross-examine them and to adduce relevant and material evidence. At the close of the hearing the parties had an opportunity to argue orally on the record and Mr. Walsh on behalf of the Respondent took this opportunity. The General Counsel waived oral argument. Briefs have been received from the General Counsel and Respondent. On the entire record in this case I and in consideration of the argu- ment and briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Henning & Cheadle, Inc., is admittedly the Employer involved in this matter. The charge alleges the name of Respondent as Automated Marketing Services, Inc., Com- puter Division. The record reveals that Respondent's name at the present time is Computers Services Division of Hen- ning & Cheadle and documents from Respondent's records name Respondent as AMS, Computer Services Division. In the absence of any issue raised in the pleadings I presume that AMS was a predecessor, at least in name, to Henning 1 General Counsel's unopposed motion to correct the transcript is granted 781 & Cheadle. Respondent is engaged in the service of provid- ing marketing and communications services to other em- ployers located in the Detroit area. It has various places of business in Detroit; that involved in the instant proceeding is located at 10000 Greenfield Street. Respondent annually performs services valued in excess of $500,000 of which services valued in excess of $50,000 are performed for vari- ous enterprises located in States other than the State of Michigan. Respondent annually also receives at its Michi- gan facility goods and materials valued in excess of $50,000 from points located outside the State of Michigan. I find that Respondent is an employer engaged in commerce with- in the meaning of Section 2(2), (6) and (7) of the Act. 11 THE UNFAIR LABOR PRACTICES Background At the facility with which we are concerned, Respondent operates a data entry department where the matters alleged herein all took place. Prior to November 1 2 the data entry department was supervised by a Mrs. Valerie Grant. Mrs. Grant was very permissive with her employees in matters of time and atten- dance and appears to have been quite protective of them. She was popular with most of the girls who worked for her. It appears that on at least two occasions prior to November Mrs. Grant had achieved raises or other benefits for her girls by threatening to quit. Late in October she met with Opera- tions Manager Tanner and again told him that she was quitting. This followed what appears to have been a stormy period of time resulting from the fact that some deadlines had been missed by the employees working under Mrs. Grant.' When the girls learned that Mrs. Grant was going to quit because of her differences with management they consid- ered walking out in protest of her quitting but then agreed that they would ask Tanner and higher members of manage- ment to meet with them to discuss the matter Tanner met with them the same day.4 The girls let Tanner know that they wanted to retain Mrs. Grant as their supervisor but it is not clear that at this time any mention was made of a threat to walk off the job if Mrs. Grant was not retained. Tanner took no action responsive to the meeting. On November 1 a new supervisor, Mrs. Ginger Hammond, was employed. Over the ensuing weekend, she worked at clean- ing up the room in which the data entry employees worked and on November 5 was introduced to her employees as their new supervisor. She called a meeting of the employees in Respondent's conference room, introduced herself to the employees and told them that she wanted improvement in their attendance and that her goal was to help them become satisfactory keypunch operators so that they could move into a better job. She also stated that she would have indi- vidual meetings with the various girls at a later time. On November 14 it became apparent to Mrs. Hammond that she would have to have overtime hours worked in order Z All dates hereinafter are in the year 1973 unless otherwise specified. Operations Manager Tanner had been employed at this time only for about a month Tanner's immediate superior, Mr Taylor, declined tojoin in the meeting 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to meet a deadline forthcoming the following day and she asked for volunteers to work that night. A number of girls volunteered to work for various hours during the course of the evening. At this time the data entry division was working two shifts ranging from 8 in the morning until midnight and, because there was a lot of overtime, frequently after mid- night. Also on the evening of November 14 several of the em- ployees, having purchased a gift for Mrs. Grant, proposed to have dinner with her in a nearby restaurant and give her the gift. Among those present at the dinner were Vikki Kapanowski, Pascuala Sosa, Pat Barac the Charging Party and Gloria Seats. The party apparently was a huge success. Kapanowski, Barac and Seats all had too much to drink. During the course of the party, Pascuala Sosa realized that she was drinking too much and said that she thought she would not be able to go in to work the next day. The other girls told her that they did not believe her because her husband was unemployed and she needed the money. The discussion ended up with three of the employees each betting her $2 that she would be in the following day. Pat Barac stayed with Gloria Seats until 4:30 in the morn- ing and went home. Some friends awakened her at 8.30 5 and she called up the office to find out whether Sosa had come to work. When she learned that Sosa had not come in, she commented to the employee to whom she was talking that she had won the bet and explained to her what the bet was about. Barac called back at 11:30 and told Mrs Ham- mond that she would not be in because she was sick. Mrs. Hammond told her that she was fired. Mrs. Hammond testified that she told Mrs. Barac that she was aware there was a bet on whether Sosa would come in and that she knew Mrs. Barac was not sick and that Mrs. Barac also knew that there was a deadline to be met in the department that day. Sosa called in on the 15th and told a fellow employee to tell Mrs. Hammond that she would not be in because she was sick. When she awakened on the 16th and again felt sick she called Mrs. Hammond. Mrs. Hammond, according to her testimony, told her that she knew Mrs. Sosa was not sick and that she had heard about the bet between Sosa and Pat Barac. Mrs. Hammond said she felt that Mrs Sosa was just taking the time off to "more or less keep the department from meeting deadlines that had been set and that she could come in and clean up her drawer, she was terminated." The timesheet provided by Respondent for Mrs. Sosa bears the statement "terminated 11/15/73" which is scratched out and below it is written "termination-quit 11/16/73." Vikki Kapanowski called in sick on the 15th because she too had a hangover. On the 16th she went in to work for what was to have been her last day but before she com- menced working she was informed by Mrs. Hammond that she had been terminated effective the day before because she had not come to work. Gloria Seats called in on November 15 and told Mrs. Hammond that she would be in the office at 2 o'clock to start work. Her normal starting time was 5 o'clock but be- 5 She was not due at work until noon cause she had left at 8 p.m. the preceding evening to go to the party she planned to start work 3 hours before her normal starting time on the 15th. This was consistent with the custom under Mrs. Grant Mrs. Hammond told Miss Seats to come in at 2 o'clock and they would have a discus- sion. At 2 o'clock Mrs. Hammond told Gloria Seats that since she had left the office at 8 the night before and never came back she was terminated because she knew there was a deadline and she dust could not walk off the job. Miss Seats went to Operations Manager Tanner and talked him into intervening on her behalf and the following day she was permitted to return to work on a probationary status. Tamara Fischer did not attend the party on the night of the 14th. While she was nominally employed to work from 8 a.m. to 3.30 p.m., under another special arrangement with Mrs. Grant she had been coming in between 6 and 6:30 most days and leaving earlier in the afternoon. On Monday of the critical week, Mrs. Fischer had gone to the dentist with a toothache and missed Tuesday because of the dental work she was having done. She testified without contradic- tion that she was excused by Mrs. Hammond for this pur- pose. She came in on the morning of the 15th between 6 and 6:30 and worked until about 8 o'clock. When she arrived the second shift supervisor was still present and awaiting the arrival of Mrs. Hammond to tell her the status of the work; instead she told Mrs. Fischer to pass on the information to Mrs. Hammond. When Mrs. Hammond did not appear at 8 o'clock, Mrs. Fischer wrote her a note giving her the message from the second shift supervisor and telling her that she had to go to the dentist but would be back shortly. As she was leaving at or about 8:10 she ran into Mrs. Ham- mond who was dust arriving. She told Mrs. Hammond she was late for her dental appointment and left hurriedly. When she returned some time between 9:30 (Mrs. Fischer's testimony) and 11 a in. (Mrs. Hammond's testimony), Mrs. Hammond told her that she was fired because she had not let her know earlier that she had an 8 o'clock dentist ap- pointment and because Mrs. Fischer knew that she had a deadline to meet at noon on the 15th. Mrs. Hammond testified that she discharged Tamara Fischer because of her failure to inform her in advance about her dentist appointment on the morning of the 15th, because of her bad attendance record in the past, and be- cause she had "hassled" a new employee, a protegee of operations manager Tanner, who had thereupon quit .6 Discussion and Conclusions The General Counsel contends that the four girls, Fisch- er, Kapanowski, Sosa and Barac were all terminated be- cause Mrs. Hammond believed that they were engaged in a concerted work stoppage on November 15 to embarrass her and to cause Respondent to miss the November 15 6 It appears that the employee in question had been put to work for the first time on a machine alongside Pat Barac, who was a very fast operator, to learn the job During the morning Tamara Fischer made some comment to her that she (Fischer) had spent $300 to be taught the keypunching, lob and she did not think it was fair that the Company was paying the new employee to learn it According to the testimony of Pat Barac the employee subsequently cried in frustration and left the job about noon because she could not perform to her own satisfaction It appears that it takes 2 or 3 months to become competent at the keypunching, lob at Respondent's plant. HENNING AND CHEADLE deadline about which Mrs. Hammond was concerned. From the testimony of Mrs. Hammond, which is not partic- ularly inconsistent with that of the employees concerned, I conclude and find that in fact Mrs. Hammond was aware that the employees resented her firmness as a supervisor after the laxity of the supervision of Mrs. Grant and on the morning of the 15th believed that the employees were en- gaging in a concerted work stoppage. I conclude and find that for this reason every employee who was off on the 15th was summarily discharged by Mrs; Hammond. The General Counsel makes no contention with regard to Vikki Kapa- nowski, who suffered only to the extent that her quit was made effective a day sooner, or Gloria Seats, who also lost only I day after the intervention of Operations Manager Tanner, but he contends that the termination of Fischer, Sosa and Barac violates Section 8(a)(1) of the Act. Respon- dent contends that if Sosa and Barac were discharged be- cause they were engaged in a concerted walkout, the activity, while concerted, was not protected. Respondent relies on the court decisions in Dobbs Houses Inc., v. N.L.R B., 325 F.2d 531 (C.A. 5, 1963). Cleaver- Brooks Mfg. Corporation v. N.L.R.B., 264 F.2d 637 (C.A. 7, 1959), and similar cases holding that employees may be discharged for their failure or refusal to follow their employ- ers' instructions or for their resistance to a change in super- visors where the change was effectuated for the benefit of the employer in order to improve production. The rule com- monly used by the Board however is that recited in the Dobbs Houses case, the appeal to which is cited by Respon- dent. In the Board Decision at 135 NLRB 888 the Board held: ... under well-established precedent, concerted ac- tion by employees to protest an employer's selection or termination of a supervisory employee is not automati- cally removed from the protection of the Act. Each case must turn on its facts. Where, as here, such facts establish that the identity and capability of the supervi- sor involved has a direct impact on the employees' own job interests and on their performance of work they are hired to do, they are legitimately concerned with his identity. In the instant case the identity of the supervisor certainly has a direct impact on the employees' own job interests and on their performance of work they are hired to do, in that the former supervisor, Mrs. Grant, was very permissive, and was prepared to go along with the employees' somewhat casual attitude toward the Employer's established working hours and with Mrs. Grant's easygoing attitude toward meeting "deadlines." Under the circumstances that this was a legitimate em- ployee concern, although perhaps it could be considered misguided, the action of the employees in concertedly pro- testing Mrs. Grant's quit and the hire of Mrs. Hammond, if indeed they took such action, appears to be protected activity. However testimony of Vikki Kapanowski, Pascua- la Sosa and Pat Barac is all consistent in that the three employees concerned denied that their absence from work on (November 15 was related to their protest against what 783 they appear to believe was the forced resignation of Mrs. Grant. Each of the employees testified without contradic- tion that they, and Gloria Seats with them, drank too much on the night of November 14 and they were accordingly unable to work on the 15th because of their ensuing hang- overs. Respondent contends that for this reason the com- plaint must be dismissed inasmuch as it is clear that the employees were not engaged in protected concerted activity or indeed in concerted activity at all. I conclude as I have stated above that the employees were discharged because of their failure to come to work on November 15. I conclude further in agreement with Respondent that their failure to come to work on November 15 was not due in any way to their participation in concerted activity. However at this point I must part company with Respondent. As the Gener- al Counsel points out if the discriminatees were unlawfully terminated because the Respondent believed that they en- gaged in concerted protected activity the violation still ex- ists. For example, in San Juan Lumber Company, 144 NLRB 108, five employees, whom the Trial Examiner had found failed to report to work because their car would not start, were discharged because the foreman believed they had remained away from work in a concerted protest against a delay in paying them. The Board found that by discharging them for this reason the respondent violated Section 8(a)(1) of the Act, particularly since the respondent communicated this rationale to its employees and thereby served notice that concerted activity would not be tolerated in its plant. Here Respondent served notice on its employees by the reinstatement of Gloria Seats under probation after she had successfully appealed her discharge to the production man- ager. Similarly in System Analyzer Corp., 171 NLRB 45, the Board found that the discharge of employees because the employer erroneously believed that they had engaged in a protected concerted act of writing a letter to the employer which the employer took to be a threat of a slowdown constituted a violation of Section 8(a)(3) and (1) of the Act.7 I find that by the discharge of Pascuala Sosa and Pat Barac because Respondent believed that they had engaged in a concerted work stoppage, Respondent violated Section 8(a)(1) of the Act. With regard to Tamara Fischer, she was not one of those who failed to work on November 15 because of the party; she was discharged after she had already come to work, left and returned, because of failure to inform Mrs. Hammond in advance that she had a dental appointment, because she had been blamed for "hassling" a new employee who subse- quently quit and because she set her own working hours. The General Counsel attempts to read into the language on her employment security form "instigated friction among coworkers" an acknowledgement by Respondent that she was discharged in part because she had allied herself with those employees who were protesting Mrs. Grant' s resigna- tion . However I find equally inferrable the conclusion that r Respondent contends that System Analyzer Corp is "not factually rele- vant " The distinction it makes, i e , the nature of the suspected concerted activities, is not valid I rely on the rule therein that the mere fact that the employees had not engaged in the activities for which they were discharged constitutes no defense to the employer who discharged them 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the quoted language referred to her alleged harassment of the new employee and I believe that the General Counsel has failed to establish his case with a preponderance of the evidence. Accordingly I shall recommend that the com- plaint, insofar as it alleges that the discharge of Tamara Fischer violated the Act, be dismissed. CONCLUSIONS OF LAW 1. Respondent Henning & Cheadle, Inc., is an employer within the meaning of Section 2(2), (6) and (7) of the Act. 2. By unlawfully discharging Pascuala Sosa and Pat Ba- rac on November 15, 1973, Respondent violated Section 8(a)(1) of the Act 3. The aforesaid unfair labor practices are unfair labor practices burdening and obstructing commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY I find that it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and that it take certain affirmative action in order to effectuate the purposes of the Act. I shall recommend that Pascuala Sosa be reinstated to her former job or, if that job no longer exists, to a substantially equivalent job and that she be made whole for any loss of pay she may have suffered by reason of the discrimination against her by the payment to her of a sum of money equal to that she would have earned but for the discrimination, in accordance with the principles enunciated by the Board in F W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716. With regard to Pat Barac the record reveals that on No- vember 16 Operations Manager Tanner asked her to return the following Monday and talk to Mrs. Hammond after Mrs. Hammond had cooled off. While there is no evidence that if Pat Barac had returned on the following Monday, November 19, she would have gone back to work, the infer- ence is fair that she would have done so, under the same circumstances as Gloria Seats returned to work on Novem- ber 16 after the intervention of Tanner. However, Gloria Seats went back to work as a new probationary employee and I believe the inference carries over to this point too. The most I can infer is that if Pat Barac had come to work on the following Monday, she would have returned to work as a new probationary employee. While this evidence may affect the computation of backpay, Tanner's suggestion does not constitute an offer of reinstatement sufficient to toll Respondent's liability to Mrs. Barac. Accordingly Re- spondent should offer her reinstatement to the same or a substantially equivalent job with backpay to the extent that she has suffered a loss of income by reason of the discrimi- nation against her. Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in this proceeding and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent Henning& Cheadle, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from interfering with, restraining or coercing its employees in the exercise of their Section 7 rights by discharging them because of its belief that they had engaged in a concerted work stoppage to protest the resignation of their supervisor 2. Take the following affirmative action: (a) Offer Pascuala Sosa and Pat Barac full reinstatement to their former Jobs or, if such former Jobs no longer exist, reinstate them to substantially equivalent Jobs without prej- udice to their seniority and other rights and privileges and make them whole for any earnings they lost as a result of their discharge. in the manner set forth above in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records necessary to ana- lyze the amount of backpay due under the terms of this recommended Order (c) Post at its place of business at 10000 Greenfield Ave- nue, Detroit, Michigan, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms pro- vided by the Regional Director for Region 7, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent 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 Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 7 in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 9 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, an Administrative Law Judge of the Nation- al Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post HENNING AND CHEADLE this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To form, join or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection; and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discharge our employees because we believe them to have engaged in a concerted work stop- page for their mutual aid or protection. WE WILL reinstate Pascuala Sosa and Pat Barac to their same jobs or, if those jobs no longer exist, to substantially equivalent jobs and we will make them 785 whole for any earnings lost because of our discharge of them. Dated By HENNING & CHEADLE, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich- igan 48226, Telephone 313-226-3200.