Siltec Corp.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Siltec Corporation and United Electrical, Radio and Machine Workers of America, Local 1412. Case 20-CA-9026 April 4, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 27, 1974, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, counsel for the General Counsel filed exceptions and a supporting brief, and Respond- ent filed an answering brief to the General Counsel's exceptions and brief. 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, only to the extent consistent herewith, and to adopt his recom- mended Order. We agree with the Administrative Law Judge's find- ing that employee Brawthen's discharge was unrelated to his union activities. For that reason we adopt the Administrative Law Judge's conclusion that the com- plaint should be dismissed.' We do not adopt, however, all of the Administrative Law Judge's rationale for reaching this conclusion be- cause we find, in agreement with Respondent's excep- tions, that the Administrative Law Judge exceeded his discretion by substituting his own standard for that of Respondent in determining what would constitute good and sufficient grounds for Brawthen's discharge. The Respondent asserted as its reasons for discharg- ing Brawthen his declining job performance and inat- tentiveness to his duties. On this issue the Administra- tive Law Judge found that Brawthen had failed to use his safety equipment, was late for work "during the critical February-March 1974 period," was away from his work station "an unprecedented amount of time," prepared incomplete records, disturbed other em- ployees by talking to them during their worktime, and had changed his demeanor in his contacts with his superiors. Nevertheless, the Administrative Law Judge concluded that these facts were not sufficient to war- rant discharge and accordingly found that Brawthen was not discharged on this basis. In making such a i Both parties have filed exceptions only with respect to the Adimmstra- tive Law Judge's findings concerning employee Brawthen. judgment, we believe that the Administrative Law Judge improperly substituted his own standard for Re- spondent's rightful exercise of discretion in determin- ing what constituted sufficient cause for discharge. It is this improper substitution of judgment and the Ad- ministrative Law Judge's findings thereon that we can- not adopt. Having alleged a violation of Section 8(a)(1) and (3) of the Act in the Respondent's discharge of Brawthen, the General Counsel had the burden of proving em- ployer knowledge of the union . activity and union animus as the motivation for the discharge. The Gen- eral Counsel failed to meet this burden. Indeed, the Administrative Law Judge found, a finding which we adopt, that evidence of union animus on the part of the Respondent was "totally lacking." Having made this finding, a violation could not be found under the theory of the complaint and the Administrative Law Judge should have dismissed the complaint without further inquiry into the matter.2 We also find merit in Respondent's exceptions to the Administrative Law Judge's findings on the OSHA3 issue. While we are mindful that an Administrative Law Judge must address himself to all issues which are fully litigated at trial,4 such is not the situation in the instant case. Brawthen's OSHA participation as the motivation for his discharge by Respondent was not alleged in the complaint. Additionally, counsel for the General Counsel neither sought to amend the com- plaint to allege a violation on this basis nor contended in his brief to the Administrative Law Judge that the incident constituted a violation of the Act. In fact, evidence on this issue was not even adduced until after counsel for the General Counsel had rested his case in chief and Respondent had put in its defense. It was not until counsel for the General Counsel was putting on his rebuttal evidence in an attempt to explain some of Brawthen's absences from his work station that evi- dence of his OSHA activity and the Respondent's al- leged reaction thereto was introduced. Thus, the Re- spondent was never put on notice with respect to any violation of this nature and was not given an oppor- tunity to rebut this evidence or to present arguments on any inferences that could be drawn from its conduct relative thereto. Indeed, the evidence was originally admitted, over Respondent's objection, for a very lim- ited background purpose. In these circumstances, as the Administrative Law Judge correctly concluded, the issue was not fully litigated; therefore, any findings on this issue would be a clear violation of due process. Accordingly, we reject as improper the Administrative 2 CPEIndustries, Ltd., 202 NLRB 782 (1973), DSL Mfg., Inc, 202 NLRB 970 (1973) 3 Occupational Safety and Health Act. 4 Atlantic Coast Fisheries, 183 NLRB 921 (1970) 217 NLRB No. 51 SILTEC CORPORATION Law Judge's inference that Brawthen's discharge may have resulted from his involvement in OSHA matters and, with respect to this issue, we adopt only the Ad- ministrative Law Judge's finding that the matter was not properly before him.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. Stouffer Restaurant and Inn Corporation, 210 NLRB 336 (1974). DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at San Francisco, California, on July 15,16,17 and 18, 1974, based upon charges filed March 12 and amended April 3, 1974, and complaint issued May 14, 1974, which was amended June 14, 1974, and again orally at com- mencement of hearing. The amended complaint alleges that Siltec Corporation, called Respondent, violated Section 8(a)(1) and (3) of the Act by interrogating employees con- cerning union activities, threatening employees with reprisals for engaging in union activities, creating an impression of surveillance of union activities, and discharging employees William McCartney and David Brawthen because of their membership in or activities on behalf of United Electrical, Radio and Machine Workers of America, Local 1412, called the Union, or because they engaged in other concerted activi- ties, after first issuing an assertedly discriminatory warning nol ice to McCartney only. Upon the entire record in this case, including my observa- tion of the witnesses, and upon consideration of briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1[ THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation located in Menlo Park, Cali- fornia, engages in the manufacture and sale of crystal for use in electronic equipment. It annually purchases goods valued in excess of $50,000 for use in its business operations and receives these goods directly from suppliers located outside the State of California. Further, it annually sells and ships from its Menlo Park, California, facility directly to customers located outside the State of California products valued in excess of $50,000. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion 283 Since founding in January 1969, Respondent's work force had grown to 290 persons by March 1974. Operations are carried out through departments housed in three separate buildings. Respondent's primary business is the production of single crystal silicon substrate wafers, although it also manu- factures basic equipment used in making crystal. McCartney, most recently employed from January to March 8, 1974, was a production grower; Brawthen, employed from June 1971 to March 8, 1974, was last a research and development (R & D) technician with primary duties relating to experimental growth of crystal. The Union commenced organizing activities at the facility in summer 1973. In July and September of that year separate unfair labor practice charges were filed against Respondent but were both dismissed following investigation. Respondent girded for further organizing activities by obtaining, and dis- seminating among its supervisors, guidance as to permissible and impermissible conduct relative to union activities by and on behalf of employees. Further, an experienced industrial relations manager was employed and given authority to ap- prove all terminations. Overt union activities increased in early 1974' with employees handing out organizing litera- ture at Respondent's premises and wearing union buttons. A list of 22 names identified as the partial "UE in-plant organiz- ing committee" was sent to Robert Lorenzini, Respondent's president, by letter dated February 7. McCartney and Braw- then were each named in this letter. McCartney had 16 months prior employment with Re- spondent ending June 1973 in connection with distracting personal problems. During this earlier employment he worked as laboratory technician and in supervisory capaci- ties. McCartney testified that following reemployment in January he regularly wore a "Unity" button while at work and added a "UE" button several days before being dis- charged. McCartney recalled telephoning day-shift Growing Department Foreman James Agar on February 1 to report being sick and unable to work a scheduled 12 hours that day. Further, he recalled that illness forced him to leave work on February 22, after completing 1 hour of the shift. At 3:15 p.m. on March 5, Agar handed McCartney a "written-ver- bal" warning for the two incidents of absenteeism. The warn- ing embodied an extension of probationary period to April 14, having the further effect of delaying any wage rate in- crease until that date. McCartney protested this as unfair and over the course of approximately 2 hours thereafter spoke, or attempted to speak, with Growing Department General Foreman Dwayne (Dewey) Reed, Industrial Relations Manager John Richey, Production Manager Chuck Sexton, and Vice President of Operations Larry Jo. Reed's response was to display a blue folder to McCartney claiming it con- tained written company policies including one concerning "two absences [from work] within 20 days." He declined comment on how it could apply when a full 20 calendar days separated the two absences. Richey claimed flatly that "com- pany policy" governed the situation. McCartney testified that All dates and named months hereafter are in 1974, -unless indicated otherwise 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after his essentially unsuccessful efforts to obtain reconsidera- tion on March 5 he decided to take no further action. Never- theless, at the end of the shift on March 8 Reed escorted McCartney to the office of Richey where he was terminated for failing to meet the requirements of a probationary em- ployee. Brawthen had gained experience as a production grower before becoming an engineering technician at some point prior to June 1973. He first manifested interest in the Union around November 1973, and subsequently engaged in activi- ties supportive of its cause. His first overt action occurred February 5 during a meeting with Lorenzini. Brawthen had requested this to "announce" being "involved" in the organ- izing effort. Lorenzini voiced opposition to a union express- ing the hope Brawthen had thought carefully of the "ramifi- cations" of his involvement which, "perhaps [constituted] walking down the wrong path." The conversation maintained a casual tone as Brawthen outlined unfavorable conditions of employment while Lorenzini urged that Richey be ap- proached by employees on matters seen as problems. On March 5 Process Engineering Manager Andy Ramans, Braw- then's supervisor, sharply criticized him for claimed chronic absence from his work area and on March 8 Richey, in the presence of Ramans, terminated Brawthen for inattentive- ness. Reed testified that McCartney's February absences con- stituted an excessive amount under Respondent's established policy. As written this policy defines "excessive" absence to be "more than one occurrence ... in a 4 week period." Aware of this but mindful of McCartney's "excellent" pro- duction performance, Reed reflected over several days when Agar was absent and then concluded that issuance of a warn- ing was appropriate. Its delivery was delegated to Agar on March 5. Reed testified that the following morning he was spoken to by an "upset, excited" McCartney who remained in a state of agitation over the warning the balance of that week. On succeeding days McCartney repeatedly attempted to converse with others of the management hierarchy and appeared not to accept what was meant by Reed as rehabilita- tive. Reed recalled that McCartney's displeasure persisted into March 8. The circumstances impressed Reed as warrant- ing termination; he decided on this course, and it was effected in Richey's office.' Ramans decided the discharge of Brawthen, testifying this action appeared necessary to protect Respondent's vital need for technological progress. Ramans had vacationed over the period February 9-18. Immediately after returning he was informed Brawthen was displaying increasing unreliability relative to quality of his work and attention to duty. Primary sources of information were Richey, Reed, and Process Engi- neer Don Blair. Richey reported direct and indirect knowl- edge of Brawthen being a disturbing influence in work areas unrelated to his department's function as well as derelict respecting safety practices. Reed asked Ramans to discourage Brawthen's unwanted presence in the growing department. Blair, a nonsupervisory member of the process engineering department, informed Ramans at about the same time of an unsatisfactory change in Brawthen's experimental accom- 2 The discharge episode was laced with profanity and discord among its key participants, the details of which lack significance plishments, recording of laboratory data, and general re- sourcefulness. Ramans testified that within a day or two of returning from vacation he took Brawthen to lunch at a nearby restaurant. He recalled the luncheon episode opened with social conversation, moved to discussion covering cer- tain previous remarks by Brawthen claiming managerial unresponsiveness, and finally addressed the subject of Braw- then's employment future with Respondent. Ramans testified that he alluded to a specific report of Brawthen once failing to wear protective clothing while etching, to complaints,that had arisen while Ramans was vacationing concerning the attention Brawthen gave to his job, and that he followed with a solicitous sifting of specific types of prospective endeavor offered through,a future with Respondent. Ramans denied mentioning the Union or union activities at the luncheon. Further, Ramans testified that during the balance of Febru- ary and early days of March he continued to receive reports from supervisors that Brawthen was bothering employees of their area, that Blair expressed continuing dissatisfaction with Brawthen's performance causing him (Blair) to spend increasingly more time monitoring projects, and that Ramans himself entreated Brawthen on several occasions to work faster, better, or more reliably. On March 5 Brawthen was an hour late in the morning, could not be found by Blair later, and had been asked by Reed to leave a work area. Ramans testified that he discussed the growing accumulation of spe- cifics with Richey. He recalled their consensus was to have - a discussion with Brawthen relative to whether he would resume responsible fulfillment of his duties. Ramans recalled speaking critically with Brawthen that day and receiving only an unsatisfactory excuse for the morning lateness plus a chal- lenging stare as to other complaints. Raman concludes his version by fixing March 6 as the date matters culminated. On that day another complaint was made to him by an "excited" Reed reporting Brawthen to be "in my area bothering peo- ple." Ramans immediately searched for Brawthen but he was not found in the engineering laboratory nor did he respond to a page. Ramans promptly spoke with Richey in terms of an apparent lack of response to warning and Brawthen's known identification as "one of the union organizers at that time." A joint decision was reached that lack of performance warranted termination and March 8 was selected as Braw- theri's final day of employment. The discharge episode oc- curred adjacent to Brawthen's normal work area, the details of which lack significance. Respecting paragraphs VI(a) and (b) of the amended com- plaint, McCartney testified that on February 18 Foreman C. L. Roberts noticed the union button he was wearing and spoke with him stating that involvement with the Union was "not a good thing to be doing" while McCartney was still probationary.' I credit the denial of Roberts that a conver- 3 Agar, Blair, employee Nadene Poppe, Reed, Richey, Roberts, and em- ployee Donna Sample uniformly deny seeing a union button worn by McCartney while employees Ian Cuthbertson, Cathy Jeffords, and Susan Trundle recall he did Since the letter of February 7 named McCartney the entire subject of button wearing becomes significant primarily for credibility purposes. However, the mere wearing of union insignia does not mean the wearer cannot selectively focus attention to it by bodily movements making discernment easy or difficult I accept as fact that McCartney wore union buttons but generally discredit the balance of his testimony on grounds it appears contrived and lacks plausibility. Tr. 115, 1 19, is corrected by substituting "probationary" for "provisionary." SILTEC CORPORATION 285 sati on of such nature occurred. Respecting paragraph VI(c) of the amended complaint, Brawthen testified that on February 19 Jo approached him at his workplace and initiated discussion about a rumor that employee Fred Cagle intended to obtain a gun . Strident con- versation ensued between them continuously for over an hour. Employee William Roth overheard portions but could only remember "generalities." Brawthen's version is that Jo extracted concessions from him that certain statements in union literature were misleading or erroneous and stated Brawthen's continued involvement in the union campaign constituted "serious trouble" or "serious business" from which "bitter" feelings could anse. Jo denies uttering the words "serious trouble" or "bitter" and I credit his version of the discussion." Paragraphs VI(d) and (e) of the amended complaint relate to the luncheon of Ramans and Brawthen in late February to the extent that matters there discussed were an outgrowth of departmental meetings held by Ramans on January 28 and February 8. In the first of these, Ramans had referred to existing union activity and set forth Respondent 's views and current benefits . The second meeting had commenced with a discussion of departmental scheduling but soon shifted to the subject of the union organizing campaign . In a course of discussion led by Ramans and participated in by departmen- tal engineers, the leadership and objectives of the Union were called into question. Brawthen volunteered to those present his role as one of the key employee organizers. This second meeting occurred on Ramans' last day at the plant before commencing his vacation . Brawthen testified that during the course of the luncheon Ramans seemed perplexed by his involvement with the Union, stating he would be "better off" taking problems to supervision and that pursuit of union organizing was "not helping" his career.' Respecting paragraph VI(f) of the amended complaint, Fred Cagle, at the time a polishing technician named on the in-plant organizing committee letter, testified that on Febru- ary 20 he conversed with Jo in the latter's office with Facili- ties Manager Paul Savin also present . Cagle had requested the meeting to dispel a rumor he planned to obtain a gun . Cagle's version of this meeting is that after clearing up the subject of a gun, which he disclaimed intention to utilize in any employ- ment connection, Jo then raised the subject of union activities stating that individual employee problems should be brought to his office, that in a prior campaign employees had walked 4 Birawthen believed this discussion happened February 19, on the same day he first personally distributed union literature (Tr. 24, 36) I find it actually occurred February 12 , as testified by Jo, based on the reliability of his testimony coupled with clarifying evidence of record establishing Resp Exh. 9 as a union leaflet distributed by Brawthen on that date (Tr. 176, 185). Surfacing of the gun rumor on February 12 seems only a coincidence which stimulated immediate inquiry by Jo and, as a matter of conversational now, permitted drift into the contents of union literature distributed as late as that very morning (and to treat other peripheral matters recalled by both partici- pants). Brawthen was a natural choice for Jo's initial purpose in seeking intelligent dialogue on the ominous rumor earned to him that morning 5 These utterances are quoted from Brawthen's credited version of the episode occurring on or about February 20. Ramans testified that luncheon discussion was confined to his own recently completed vacation , assertions that management had "terrorized" employees, safety matters at the plant, Brawthen's potential career choices, and reports that he had been unneces- sanly away from his own work area I generally discredit Ramans ' version of the episode. out and been discharged , that unionization would lead to a possible strike of employees and probable loss of benefits, that Cagle could advance if he wanted to, and that he wished Cagle would prevail on fellow employees not to join the Union. Jo, who places this episode on February 13, concedes having knowledge of Cagle's apparent support for the Union at that time but denies any reference to a prior walkout, mass discharge of employees , prediction that negotiations would start "from scratch," or that he solicited Cagle's assistance to induce employees away from the Union. I am impressed with Jo's credibility generally, and in regard to this episode find that discussion was confined to the gun rumor , but not to other matters described by Cagle. Regarding paragraphs VI(c) and (f) of the amended complaint, Jo testified in a manner remarkably forthright , unequivocal, and precise. His recall of chronology, context, and utterance was thorough and candid . Cagle's testimony had opposite quality in most salient regards and I consider it valueless . The consistently impressive characteristics of Jo's testimony (error in estimat- ing the date of G.C . Exh. 2 noted) also influence me to credit him over Brawthen where disparity appears. Respecting paragraphs VI(g) and (h) of the amended com- plaint, Frances Perez testified that on March 5, while em- ployed as a leadgirl in the polishing department , General Foreman Joe Allen called her into his office to discuss a transfer she may have desired . She recalled that Allen stated the transfer would look bad on her record, inquired whether she was deeply involved with the Union, and, upon hearing her affirmative response, said this was a disappointment to her foreman as he (the foreman) felt she was procompany until learning of her interest in the Union . Allen testified that he conversed with Perez in early March about interdepart- mental transfer. He knew at the time she was named on the in-plant organizing committee letter and he denied asking her of union involvement or referring to her foreman other than concerning operational matters. Allen's version of this con- versation was thoroughly convincing and I fully credit his testimony. Perez functioned as a lead girl on the first shift with duties associated to approximately 12 job stations of the polishing department. Her specific tasks were to troubleshoot in the area by anticipating workflow problems, monitor operator reliefs and shift employees back and forth to maintain pro- duction flow. Allen testified she was instrumental in training new employees and that he solicited her opinion concerning conversion of probationary employees to permanent status. Perez did not participate in supervisory meetings nor possess her own copy of Respondent's written policies. She testified her grant of authority was only that of Basking employees to accept reassignment according to apparent and momentary needs of the department . To the extent Respondent seeks to attach supervisory status to Perez at the time of the March 5 discussion with Allen , I am not convinced it has met the necessary burden of proof in this regard , as a degree of in- dependent judgment less than that defined and intended in Section 2(11) of the Act has been shown from the total evi- dence. Accordingly, I do not find her to have been a supervi- sor as defined in the Act at that point in time. I am influenced in this conclusion by the fact that during March the polishing department's first shift had only approximately , 12 employees performing repetitive duties at well-defined work stations un- 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD der Foreman Bob Buschini and to find Perez a supervisor would create a supervisory ratio unusually low for such an operation. Further, the phraseology of "Lead Girl Duties" (Resp. Exh. 25) fails to attach a truly authoritative role to the position. Evaluation of this case should note the unique nature of Respondent's operations and the form of its relationship with employees. This fast-growing company is part of a new and burgeoning industry.6 As often typically the case, manage- ment personnel were alternately attracted to informal deal- ings with employees calling up notions of loyal common pur- pose and, on the other hand, to use of structured employment regulations more suitable to the ever larger work force. This dichotomy is seen in evidence concerning both McCartney and Brawthen. In the former's case his original supervisor, Ramans, showed sympathetic concern at the time of termina- tion in June 1973, and although unwilling to consider McCartney for reentry into his small department did refer him to other plant opportunity. Reed, the hiring supervisor, extended early encouragement and for a while blithely fielded McCartney's rancorous complaints about pay rate. Treat- ment of Brawthen reveals he was considered a valued em- ployee. He functioned in Respondent's small R & D opera- tion where a single furnace was utilized for prototype crystal growing procedures necessary to provide technical justifica- tion for instituting master production programs. The work environment was characterized by informal relationships coordinating Brawthen's own workday with that of Blair, other engineers, and night-shift technician Helen Clem. Con- siderable technical competence was acknowledged, a gener- ally flexible set of work tasks was present with considerable individual,discretion as to when and how to carry them out, and the several field service trips would only have been as- signed to one in whom high confidence reposed. Lorenzini readily consented to meet with Brawthen concerning what turned out as the latter's dismay over occurrences in the plant and Richey was designated to follow up with a more detailed explanation intended to placate this concern. However, Brawthen rejected Richey's facts, calling him a mere "tool." Generally Brawthen's resentment about claimed arbitrariness towards employees in the past was never disspelled and this attitude affected the several factors peaking during February and March. The first and most significant of these was height- ened union organizing with open employee participation in terms of union literature being distributed and union insignia being worn. Second was the testing of Respondent's claimed intention of reacting permissibly to the campaign. A third exacerbating subject was-the rumor relative to whether Cagle intended to obtain and possess a gun for any eventuality that might relate to the organizing campaign. Admittedly Cagle was known as the prime union adherent among employees. Individuals concerned reacted emotionally to this rumor and while the point was resolved during a short span of time in February, it did reveal touchiness both by key union adher- ents on the one hand and management personnel on the other. Fourth was increased safety awareness, both because 6 Expanding application of Respondent's products in electronics tech- nology has been the subject of both technical and popular comment See "New Ways to Exploit Single Crystals," Materials Engineering, Vol 77, No. 6, p. 24, June 1973, and "Why They're Integrating Into Integrated Circuits," Business Week, p 55, (September 28, 1974). of specific incidents and a series of statutory safety and health inspections (Tr. 65, 304, 539, 540). These several factors had a subtle bearing on Brawthen's performance in a rather am- bulatory job, compounded by a short vacation absence of his regular supervisor and the simultaneous institution of new experimentation relative to fast shoulder crystal growth. In terms of these overall factors there is little to look to in McCartney's case except the mechanics of his short period of probationary reemployment, including voluntary overtime work on occasion, but also including the noted absences. He had but a tenuous hold on employment in the first instance as I credit Reed's description of having initially cautioned McCartney on the subject of job attendance. His first absence followed 3 consecutive 12-hour workdays and his second was for claimed diarrhea, certainly a condition prohibiting effec- tive continuation at a work station. While extenuating cir- cumstance might be argued as to both absences, such is im- material under Respondent's established written attendance policy which addresses the need to have a person reliably and consistently at work. I find this policy was in effect at the time and that it gauged excessiveness by a 4-week span of time, not the lesser 20-day span which McCartney asserts was men- tioned. Further, his claim of having given--notification of absence on February 1 was credibly contradicted by Agar (Tr. 454). A showing has been made that involuntary termi- nations are not uncommon; 28 occurring during the last 4 months of 1973, 3 in January, 3 in February, 5(other than those in controversy) in March and 2 in April.7 Of this total 12 (other than McCartney) were during probation and an additional 22 were based on absenteeism. It is significant that Respondent's literature to employees was temperate8 and evidence of union animus not presented by the evidence as a whole, nor certainly as to McCartney. His union or concerted activity was minimal and others of similar involvement re- mained employed. McCartney's reaction to the written verbal warning of March 5 justified managerial exasperation to the point that Respondent chose to terminate him.' I believe Reed testified credibly as being without discriminatory mo- tive in his sequence of decision. Respecting Brawthen's case it is true that on occasion he carelessly or petulantly disdained use of safety equipment. He was late for work during the critical February-March 1974 period or away from his work station an unprecedented amount of time. Crystal growing run sheets were incomplete in numerous instances of his own initial or continued growing attempts. He did converse with McCartney or other em- ployees while they were performing work. It is even accepted that his mood changed relative to contact and communica- tion with Ramans and Blair. The persuasive conclusion, how- ever, is that Respondent's act of terminating Brawthen was based on derelictions so marginal or explainable as to require 7 Including Cagle whose name did not appear on Resp. Exh. 23 but who in fact was discharged April 2 (Tr. 505). S Resp. Exh. 21 and G C. Exh 2, identified as to time of distribution as February 1 and March 8, respectively. 9 I credit testimony of Richey and Carleton to the effect that-McCartney repeatedly visited Richey's office on March 6 and March 7. McCartney's denial of having done so is not persuasive nor consonant with his seemingly impulsive nature This lack of credence also applies to his version of the hiring interview with Reed The absence of pretextual characteristics here contrasts with evaluation made in Electro-Netic Products Corporation, 183 NLRB 482 (1970) SILTEC CORPORATION 287 the inference that it acted with other motivation. It is simply implausible upon sifting the total evidence to believe Re- spondent would summarily discharge this valuable employee who, notwithstanding his substantial participation in union organizing, and cool, clipped relations with supervision, maintained relatively complete dedication to duties to and including his last day of employment.10 The degree to which crystal growing run sheets, as comp- leted for the R & D furnace, show deficiency on Brawthen's part depends largely on Blair's testimony. I am not impressed with the overall reliability of his testimony particularly after taking into account his"emphatic statement that process engi- neering technicians were not in the growing department sub- sequent to December 1973, followed by retraction of this testimony because of subsequent recollection that for a con- tinuous 3-week period in January and February they were exclusively so engaged (Tr. 303, 366). Further, he is con- tradicted by the highly credible Clem as to whether alltechni- clans were told to complete crystal-growing run sheets for the R & D furnace (Tr. 359, 599). Related to this is the fact that crystal growing run sheets were not, in their totality for the January-March period put in evidence, generally as complete as Blair contended was necessary. Clean herself failed to show assertedly critical starting times for growing attempts on Feb- ruary 13, 14, 22 and March 4, 6, and 8. I am satisfied that, as testified by Brawthen, oral communication was a substan- tial factor in development of experimental growing processes even though a more thorough job might have been done in desired written entries. The more convincing view of crystal growing run sheets is that they supplemented the experimen- tal process and had fluctuating significance depending on precisely what process or innovation was being attempted." Further, it may be conceded that Brawthen was, during the latter portion of his employment, away from his work station more-than normal. This does not negate that he could have chosen the cafeteria of Building 5 to use on his breaks, that heater inspection duties might have been required of him in the equipment manufacturing area and that employees of that department did not necessarily refrain from consulting with engineering department personnel (Tr. 701). Neither does it negate the necessity of Brawthen being in several areas of Building 2 or that he might perceive his proper role to assist employee's of the growing department who posed work inqui- ries to him (Tr. 293, 568). Thus, I can accept testimony that Brawthen was requested to leave plant areas by certain super- visors, that on other occasions he left before being spoken to, that on still other occasions complaints were made of his presence, that an "0" ring incident represented fault on his part, and that Brawthen was less civil than before and more likely to omit technical data on daily crystal growing run sheets. On balance, he is still shown to have maintained a key role in the'experimental crystal growth program, dovetailing 10 Brawthen's testimony was uncontradicted that on March 8 he reacted to an unexpected power loss on the experimental furnace by prompt manipulation of manual controls so as to maintain crystal structure growth. While this single incident would not be sufficient to cure proven inattentive- ness justifying an earlier, yet unexecuted, decision to terminate him, it does tend to impugn Respondent's basic defense that an aura of inattentiveness was consistently present. 1 i The formality of the sheets is also compromised by seeing rambunctious notations such as "UFO" and "BLAH!" his work cooperatively with that of fellow technicians and engineers. My evaluation adopts testimony that empirical credit for new fast shoulder growing was shared by Clem and Brawthen, as the latter's description of maintaining crystal growth on February 25 (Resp. Exh. 16(z)) was essentially uncontradicted. Basically experimental crystal growth con- stitutes an uncertain process, particularly with program vari- ations established as to crystal diameter, seed lift decrease, and shoulder shape.12 I conclude Brawthen was not discharged for inattentive- ness but for another reason completely unassociated with his union activities or any other concerted activities properly within the scope of this proceeding. Ordinarily, employer concealment of true reasons for discharge are to mask an unlawful one. In such instance, a course of reasoning to some unlawful motive is proper when, as in Shattuck Denn Mining Corp., "the surrounding facts tend to reinforce that inference."" Typically, the "surrounding facts" demon- strate a union animus underlying unlawfully discriminatory action. See Padre Dodge, 205 NLRB 252 (1973). However, in this case evidence of employer animus is totally lacking." Respondent parried the organizing effort with permissible literature of its own and allowable expression of views by supervisors, ordinarily reacting to, not initiating, the subject. Roberts, Jo, and Allen have not been shown to be the perpe- trators of coercive interrogation, threats of reprisal, or an impression of surveillance. The luncheon discussion between Brawthen and Ramans is the only instance of pure initiation of the subject of union activities by any supervisor. The inci- dent was not the -first time these two had spoken of Braw- then's career potential and its essential tone, from Brawthen's credited version, was more pleading than threatening in na- ture. While Ramans did not hide his dismay at Brawthen's involvement with the Union, the raising of doubt as to whether it should be pursued falls short of implying jeopardy to his employment future.15 Brawthen had openly exhibited his union affiliation. The allegation that an impression of surveillance touched him is unsupported. Inquiry by Ramans was uncoercive in nature and the prospect of reprisal not reasonably inferrable from the circumstances under which remarks were exchanged. Other background evidence of the Lorenzini-Brawthen conversation, remarks attributed to Foreman Joe Desamone and a November 1973 conversation between Richey and Trundle," does not, singly or collec- 12 The technically unpredictable nature of crystal growth and extent of its qualitative integrity is illustrated in an abstract of the article "Effects of Grown-in and Process-induced Defects in Single Crystal Silicone," Journal of the Electro-chemical Society, Vol 119, No. 2, p. 225, (February 1972). 13 362 F.2d 466, 470 (C.A. 9, 1966), enfg. 151 NLRB 1328 (1965). 14 I give no weight to testimony of Respondent's claimed determination to avoid commission of unfair labor practices or of Richey's extensive indus- trial relations background An objective test grounded in actual evidence must measure animus or lack thereof, not subjective intentions. 15 Cf. Southland Corporation, 208 NLRB 714 (1974), in which overall circumstances gave a contrary import to the expression "messing around" (with a union). 16 I credit Trundle's testimony concerning this conversation and discredit Richey's denial that it occurred. Trundle was in Richey's office seeking a pay raise and had remarked inquiringly whether having a union would improve basic wage rates. In response, Richey probed whether she or her acquaintance Cagle favored the Union Considering its remoteness in time to significant events of the case and the fact Trundle initiated the subject of unionism for discussion, I find this episode has an inconsequential bearing on the issue of animus. This finding is made notwithstanding Respondent's Continued 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively, establish unlawful motivation. I am satisfied the key to this case lies in'the pervasive credibility present in Brawthen's testimony concerning the eventful day of March 5.-Brawthen was occasionally trapped in opinionated claims. His understanding of UE expulsion was simply incorrect. See "A Brief History of the American Labor Movement," U.S. Department of Labor, p. 47 (1970 ed.). He was admittedly mistaken concerning presence of an El Dorado automobile, stemming perhaps from the inclina- tion to treat the telling by "two or more people [off the same information" as a "reliable source." On the other hand, Brawthen's general recall, reconciliation of chronological de- tail, and careful differentiation as to complex fact situations was extremely impressive." Aside from faults noted he was fully candid, readily conceded error, and displayed a vividly excellent memory as to most of his own personal experiences. In the realm of credibility I believe further that Richey, Ra- mans, Blair, and, to a lesser extent, Reed, presented a com- posite of testimony that cannot be accepted. There are numer- ous flaws in the recounting of these four persons. Richey would have it appear he sought out Ramans on the 4th or 5th of March and took the initiative in focusing attention on Brawthen's claimed wandering at the time. Ramans, on the other hand, testified that on March 5 the accumulation of incidents reaching his attention caused him to go "over to personnel" for a discussion of options with Richey. Richey is credibly contradicted on specifics by Trundle and Brawthen, while Supervisor Dick McSorley fails to corroborate the voic- ing of a complaint to Richey (Tr. 525, 697-703). Ramans gave an overall impression of having difficulty maintaining the edges of a contrived reconstruction of events. He vacil- lated on whether, during the luncheon discussion, the subject of union involvement was or could have been raised (Tr. 220) and on whether Brawthen's job performance was discussed (Tr. 225). He equivocated on the subject of work progress reports (Tr. 250, 251). He confusedly identified "Friday after- noon" (March 8) as the day "following" March 6 (Tr. 229, 230). These mmor discrepancies are capped by serious doubt concerning Ramans' memory on the basis of his statement he did not know the Union's name as of his departmental meet- ing on February 8 (Tr. 216). This demonstrates woefully weak recall since on only January 28 he had spoken from a union pamphlet (Tr. 214).18 Ramans repeated Blair's error, in an apparent effort to stigmatize Brawthen's presence in the growing department, by mistakenly testifying that he was not regularly assigned that area "during the last three months or so" (Tr. 265). On the general issue of Brawthen's claimed counsel characterizing Trundle's testimony as showing "an 8(a)(1) viola- tion." (Tr 143.) General Counsel expressly declined to litigate the episode as an independent violation (Tr. 11, 12, 13) 17 Tr 61, 1. 3 contains the word "after" in reference to the point in time of Resp Exh. 10 (letter dated February 7). I have no basis to correct this on my own motion, notwithstanding the natural harmonizing effect were the word "before" substituted. If the question actually uttered at the hearing posed "before" at that point the response is an obvious confirmation On the other hand if the question actually posed "after," Brawthen' s response is glaringly incorrect. I merely note awareness of this point in reaching credi- bility resolutions. 18 The document used at this time was presumably a UE leaflet dated January 16. (Resp. Exh. 1). In this the Union was clearly identified both by full name and abbreviation Jo credibly referred to about 20 UE handbills during the overall organizing campaign and there is every reason to expect each was clear as to the Union's identity (Resp Exhs 9 and 20) inattentiveness, the testimony of Reed is related to that of Agar. The latter credibly testified that on several occasions during Brawthen's last month of employment he observed him speaking with operators and upon approaching the per- sons involved Brawthen "generally left." Agar informed Reed of this, who recalled observing similar occurrences him- self. The more critical question is whether Reed correctly fixes March -6 as the date on which he experienced a "third occasion" of Brawthen "visiting" his area and asked that it be stopped. Reed's testimony is remarkably more impressive concerning McCartney than it is concerning Brawthen and I believe this last episode occurred in February, as testified by Brawthen, and not on March 6 or any day of that week.19 Thus I am satisfied a true sequence began with the lunch- eon on or about February 20, during which- Ramans dis- cussed union involvement and career future with Brawthen but in no way complained of job performance or attention to duty. The next event was Reed's routine admonishment to Brawthen that be not talk with employees. Although charac- terizing himself as actually "working" at the time, Brawthen nevertheless acquiesced and this is credibly corroborated by employee Diane Johnson (Tr. 691, 564). Brawthen was oc- cupied March 4 and 5 with experimental fast shoulder grow- ing attempts. At midmorning on March 5 he went to discuss characteristics of a seed crystal with Blair, expecting to find the latter in a plant cafeteria. While so proceeding, he ob- served Richey in or adjacent to the growing department con- versing with an occupational safety and health compliance officer.20 Brawthen hesitated at the spot to the extent that 19 The record refers to "February or March " Context at that point clearly indicates Brawthen means his estimate to be that the incident well preceded March 5 (Tr 690, 691) 20 Richey testified that Respondent had several occupational safety and health inspections during 1974, two of which apparently occurred prior to Brawthen's discharge. The State of California Department of Jndustrial Relations is now authorized to implement a "state plan" approved under criteria of the Federal Occupational Safety and Health Act. One criterion requires a showing that the state plan "[P]rovides for a right of entry and inspection of all workplaces . . . at least as effective as that provided in section 657...." (29 USCA § 667 (c)(3)). Formal approval noted that the proposed plan and "contemplated" enabling legislation "[P]rovides em- ployer and employee representatives an opportunity to accompany inspec- tors and call attention to possible violations before, during and after inspec- tions. " (38 F.R 10719, May 1, 1973.) The California plan is publicized as "CAL/OSHA," a variation of "OSHA" meaning the Federal act or, interchangeably, the administration responsible for Federal enforcement. For convenience this Decision will maintain undifferentiated references in the record by simply terming the subject "OSHA." Statutory phraseology relative the inspections is as follows- [T]he Secretary [of labor] is authorized . to inspect . any place of employment . and to question privately any . em- ployer, owner, operator, agent or employee. 29 USCA § 657 (a) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace .. . Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace. 29 USCA § 657(e). Prior to or during any inspection of any workplace, any employees or representative of employees employed in such workplace may notify the Secretary or any representative of the Secretary responsible for SILTEC CORPORATION Richey approached and pointedly suggested waiting duties be performed. About 10 minutes later Brawthen scouted the office of Plant Safety Engineer George Sudikatus, but was summarily =told by Richey that he belonged in his break area (Tir. 650). He next experienced sudden, excited remarks of Ramans occurring later that day. This involved criticism of Brawthen for seeming to intrude himself into the OSHA inspection. Brawthen countered on the basis of understand- ing it to be an activity within his rights. The conversation was brief, however, with neither participant particularly pursuing their initial thoughts.21 From the standpoint of task per- formance and application to job requirements, the balance of Brawthen's week was uneventful.22 ][ have rejected the assigned reason for Brawthen's dis- charge and although Shattuck Denn would invite taking the step, do not conclude Respondent therefore acted with con- ceafed unlawful motivation. The reliable, probative, substan- tial evidence contained in the record as a whole does not show unlawful conduct respecting the union activities that oc- curred. Cf. CPE Industries, Ltd., 202 NLRB 782 (1973). I instead infer that Respondent, influenced chiefly by Richey's perception of his combined industrial relations and safety functions, rid itself of Brawthen to interdict this involvement with existing and prospective OSHA activities. Motivation was strong and circumstances highly suggestive of this con- clusion. Richey viewed the series of OSHA inspections with disdainful aggravation. He monitored the apparent depth of involvement in union activities by various employees and would only reasonably view Brawthen's eager interest in the March 5 inspection as a complication to the already delicate decisions being made under the long-present cloud of an organizing drive.23 I infer further that Richey prevailed on conducting the inspection, in writing, of any violation of this chapter which they have reason to believe exists in such workplace . 29 USCA § 657(0(2) In the course of any investigation or inspection of an employer or place of employment by an authorized representative of the division [of In- dustrial Safety], a representative of the employer and a representative authorized by his employees shall have an opportunity to accompany him on the tour of inspection Any employee or employer, or their authorized representatives, shall have the right to discuss safety viola- tions or safety problems with the inspector privately during the course of an investigation or inspection. Where there is no authorized em- ployee representative, the [division] chief or his authorized representa- tive shall consult with a reasonable number of employees concerning matters of health and safety of the place of employment. California Occupational Safety and Health Act of 1973, A B No 150 approved October 1, 1973, West's Ann Labor Code § 6314(d). 21 The contradiction in testimony concerning this conversation is the most critical in the record (Tr. 228, 229, 659, 660) The accepted version is determinative of whether Brawthen had previously received any caution concerning his work performance Brawthen's testimony on this point is thoroughly persuasive and I fully credit his version. 22 It is uncontradicted that for the entire morning of March 6, Brawthen assisted Respondent's maintenance employee in changing a seed rod. For the` balance of that day and on March 7 several fast shoulder growing attempts are shown, employing the experimental 12-inch-per-hour seed lift rate. On March 8, the actual day of discharge, Brawthen handled the furnace power loss in a manner previously noted and also worked with Ramans on polishing pad inspection as a prelude to Richey's appearance. 23 There is ample wasting on the subject, the essence of which would readily reach the attention of an industrial relations professional Illustrative of comment associating OSHA with unionization is the following: 289 Ramans to contrive testimony relative to the February 20-March 6 span of time in an effort to conceal the true actuating dynamics. Related to this is the fact that Respon- dent's supervisors had reason to associate Brawthen with McCartney24 and it must be remembered that commencing the afternoon of March 5, and continuing in unacceptable fashion the remaining days of that week, the latter mounted such a stream of complaints as to mark himself for discharge. I conclude Ramans' remarks of March 5 were meant to deter Brawthen from further OSHA involvement but when, within scant hours, this approach appeared too conservative for Re- spondent's overall interests, the momentum of events spawned a decision to terminate him. Overall interests means Respondent's natural desire to avoid OSHA liability. This inferred inclination cannot embrace the further conclusion that Brawthen's coextensive union activities were a partial influence, since a course of reasoning to that point would require sheer speculation and be contrary to the weight of evidence. Second, the process of collective bargaining only produced a variety of interim stopgap measures. Generally speaking, union efforts at the bargaining table to impose more stringent controls over safety and health have been beaten back as cost conscious companies continue to guard zealously their "managerial prerogatives" over these subject areas against erosion from any source . In any event, even assuming that unions had made more significant gains, the impact would have been confined to the organized sector, which reflects only a modest percent- age of the nation's overall work-force * * * * * Further, union lawyers may wish to savor, and their management coun- terparts contemplate warily, the fact that under OSHA, Congress con- ferred upon labor unions a much more expansive opportunity to partici- pate actively in all stages of compliance and enforcement than is the case with respect to "charging parties" under the NLRA. George H. Cohen, "The Occupational Safety and Health Act A Labor Lawyer's Overview," 33 Ohio State Law Journal 788 , 789, 799, (1972) The IUD [Industrial Union Department, AFL-CIO] has no sympathy for employers [associated with the "virulent reaction" of management to a proposed OSHA regulation amendment allowing public disclosure of results of workplace hazards monitoring] who wish to keep workers in the dark on possible hazards to their health of which they should be aware . . Letter of Sheldon Samuels, IUD Director, Health, Safety and Environmental Affairs, Occupational Safety & Health Reporter, BNA, Vol. 3, No. 22, p. 715 (November 1, 1973) [I]t is up to organized labor to convince management . of the need for safe and healthful workplaces Conference remarks, "California Labor Federation, AFL-CIO and the Center for Labor Research and Education, University of California at Berkeley," Occupational Safety & Health Reporter, BNA, Vol. 3, No. 24, p. 779 (November 15, 1973). [O]SHA conveyed only "leverage" to unions in collective bargaining, not added rights. * * * * * OSHA has had a more indirect impact on organizing activities in that employee rights are not exercised adequately in an unorganized shop. OSHA stimulates the desire to obtain benefits . * * * * * Because of this [insufficient number of OSHA compliance officers], voluntary compliance on a unilateral basis "is simply paternal" . . it should be bilateral and where there is a union, it should be contractual John J. Sheehan, Legislative Director, United Steelworkers of America, participant for "Federal Bar Association-Bureau of National Affairs Institute on Occupational Safety & Health," Occupational Safety & Health Reporter, BNA, Vol 3, No. 51, p 1625, (May 23, 1974). 24 Tr. 295, 434, 435. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The subject of safety (incorporating OSHA) metamor- phosed during trial of this case. Initially, General Counsel adduced no testimony from Brawthen relative to OSHA and objected to cross-examination on the subject of safety as beyond scope of the direct (Tr. 64). It was not until rebuttal, on the fourth day of hearing, that Brawthen's testimony cov- ered particulars of his interest in OSHA enforcement. This was repeatedly and successfully objected to by Respondent on grounds it improperly broadened General Counsel's theory of the case (Tr. 540-548, 642-647, 663-668) .' It is first neces- sary to note that the general concept of workplace safety differs from structured provisions and procedures of OSHA enforcement. 26 Respondent is not shown to oppose general elevation of-safety practices by and affecting - its employees. Admittedly Brawthen was twice cautioned by Jo in this re- gard and by March at the latest inculcation of safety aware- ness among employees was being stressed.21 However the separate matter of OSHA participation by Brawthen, to which Respondent's hostility has been inferred, was not pleaded or timely advanced as a theory of the amended com- plaint's paragraph VII(a). Wray Electric Contracting, Inc., 210 NLRB 757 (1974), is an instance of proper grounding in this regard. There the complaint alleged an individual was discharged because he "[E]ngaged in certain activities on behalf of. . . the Union and, more particularly, for the rea- son that [he] filed a complaint . . . with the United States 25 Tr 647, 1 5 is corrected by substituting " clear" for "queer " Tr 659, 1. 21, Tr. 664'11. 14, 25 and Tr 665, line 4 are corrected by substituting "OSHA" for "OCEA " - 26 This is illustrated by Uniroyal, Inc, 197 NLRB 1034 ( 1972), a case in which the employer claimed failure to observe a safety regulation was the reason for an employee's discharge In resolving that issue , it was found to be unnecessary to take "official notice" of the Occupational Safety and Health Act since such was not found "relevant to the immediate issue of discharge " (TXD, fn. 19) 27 The distinction is reflected in comment during colloquy with counsel that "departing" from safety requirements might "[be] intertwined" with OSHA as a matter of testimonial continuity (TR 548) Department of Labor alleging that certain conditions of em- ployment at Respondent's . . . jobsite '. . . were unsafe in violation of the Occupational Safety and Health Act of 1970." The finding in Wray, adopted by the Board, was that the individual had been discriminatorily discharged for "con- certed or union activity" of filing "a complaint with OSHA." The instant case did not result in litigation of such an issue. Ordinarily a fully litigated matter is one where each adver- sary consciously addresses a particularized issue. The doc- trine is applied in Atlantic Coast Fisheries, 183 NLRB 921 (1970), where the Board found that "jT]he question of whether the layoff was a `sham' was neither alleged in the compaint nor fully litigated" in a situation where "there was neither a specific nor a general allegation that the Respondent effected a premature seasonal layoff in order to discourage union activity."28 A proper test of the gravamen of a com- plaint is whether sections of the Act are specifically invoked or theories of unlawful motivation appropriately advanced at hearing, as a necessary basis for the subsequent phenomenon of "full litigation." Cf. Western Commercial Transport, Inc., 201 NLRB 17 (1973). An insufficient foundation exists to treat the matter of Brawthen's activities relative to OSHA as a fully litigated issue. Neither the complaint nor General Counsel's opening statement gave any hint such would be an issue of the case. It was belatedly, and somewhat equivocally, introduced during a closing stage of the hearing . General Counsel's brief does not raise the point other than as minor factual continuity (G.C. brief, p. 16). In these circumstances no basis exists to adjudicate whether Brawthen's OSHA in- volvement was "other concerted" activity which caused his discharge. [Recommended Order for dismissal omitted from publication.] 28 Cf Monroe Feed Store, 112 NLRB 1336 (1955); Phillips Industries, Incorporated, 172 NLRB 2119 (1968).