Jeannette Corp.

JEANNETTE CORPORATION 653 Jeannette Corporation and Barry R. McNeely. Case 6-CA-7757 April 30, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 31, 1975, Administrative Law Judge Paul Bisgyer issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Relations Board has delegated its authority 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. 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 Respondent, Jeannette Corporation, Jeannette, Penn- sylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. qualified rule which prohibited employees from discussing wage rates with other employees and discharged employee Cheryl A. McNeely, at least in part, for engaging in protected concerted activity in breach of this rule. At the close of the hearing, the Respondent made a short oral statement of posi- tion on the record. Thereafter, briefs were filed by the Gen- eral Counsel and the Respondent in support of their respec- tive positions. Upon the entire record,' and from my observation of the demeanor of the witnesses , and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT The Respondent, a Pennsylvania corporation with its prin- cipal office and place of business in Jeannette, Pennsylvania, is engaged in the manufacture and nonretail sale of glass, ceramic, and plastic products. During the 12-month period immediately preceding the issuance of the complaint herein, the Respondent received directly from sources outside the State goods valued in excess of $50,000 which were used in its operations within the State. During the same period, the Respondent shipped from its Jeannette plant finished pro- ducts valued in excess of $50,000 directly to points located outside the State. It is admitted, and I find, that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Introduction; the alleged invalid rule; the issues 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 'F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all parties represented, was heard on December 12, 1974 in Pittsburgh, Pennsylvania, on the complaint of the General Counsel issued on October 30, 1974' and the an- swer of Jeannette Corporation, herein called the Respondent or Company. In issue are the questions whether the Respond- ent, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended,2 maintained in effect an un- I The complaint is based on original and amended charges filed by Barry R. McNeely on September 13 and October 29, 1974, respectively, copies of which were served on the Respondent by registered mail on September 13 and October 30, 1974, respectively The Respondent's clerical employees are not represented by any labor organization, although its hourly production and maintenance employees not here involved are. The cleri- cal employees, who apparently are salaried, work in various locations. A large number of them are employed in the main office building which is situated in front of the manufacturing facility. Other clerical employees are employed in the payroll department which is housed in a separate building. There are still other clerical employees assigned to offices in various departments located in the plant itself. For a number of years the Respondent has maintained in effect an unwritten rule prohibiting employees from discuss- 2 Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent, Sec. 7 provides that [e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 3 No opposition having been received, the General Counsel's motion to correct transcript of testimony is hereby granted and the transcript is ac- cordingly corrected. 217 NLRB No. 122 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing wage rates with other employees ., According to G. Richard Mallory , the vice president of manufacturing, the rule is designed to preserve the confidential nature of the salaries paid the clerical employees and thus to avoid a dis- ruptive situation and unhappiness from developing among those employees which disclosure of the varying salaries would necessarily produce. It appears from the uncontrov- erted testimony of Paula Caranese, a former clerical em- ployee, that notwithstanding this rule the low wages prevail- ing at the Company's establishment were "a main topic" of discussion among the clerical employees "all the time." As related below, Cheryl A. McNeely was discharged on Sep- tember 6, 1974,5 as a result, at least in part, of the enforce- ment of the above-mentioned rule. It is the General Counsel's position that this rule is an impediment to the employees' statutory right to engage in concerted activities for mutual aid and protection and therefore is violative of Section 8(a)(1) of the Act and that McNeely's discharge as a consequence of the application of this rule also violated this provision of the Act. The Respondent, on the other hand, denying that it committed any-unfair labor practices, argues, in substance, that the rule was not a per se violation of Section 8(a)(1) of the Act and that McNeely's discharge was permissible since her salary discussions did not amount to protected concerted activities, and, in addition, she had made a willful misre- presentation to employee Caranese that she had secured a $100 salary increase and to Vice President Mallory that Per- sonnel Director Dennis Petti had promised her an increase at the time she was hired . We turn to the evidence. 2. McNeely's employment; her subsequent salary discussions with employees Cheryl McNeely was hired on July 15 by Personnel Direc- tor Petti at $435 per month primarily as secretary to Richard Mallory, the vice president of manufacturing, with additional duties to be performed for Petti and four men in the nearby Engineering Department. At this time, Petti told McNeely that the $435 she would be paid was only a starting salary which would be raised as soon as she demonstrated her capa- bility to handle the job.6 Admittedly, Petti did not specify a date when her work would be evaluated to determine her eligibility for a raise or the amount of such a raise. McNeely started working the next day and continued until her dis- charge on September 6 under circumstances which will be considered below. Mallory characterized her performance as "very satisfactory" and testified that she presented no prob- lems. Becoming unhappy with what she regarded as low pay she was receiving, which had not been raised since her hiring, 4 The complaint alleges, and the Respondent's answer admits, the exist- ence of such a rule In its brief, the Respondent concedes it has "a policy that salaried employees should not discuss wages with one another" but qualifies its statement by adding "on the company premises on company time." However, this qualification is unsupported by any record evidence 5 Unless otherwise indicated, all dates refer to 1974 6 Petti's statement concerning a raise reflects the testimony of McNeely who impressed me as a trustworthy and reliable witness. Petti's testimony with respect to what he had told McNeely at the time he hired her is essentially the same. Thus, he testified that he had explained to her that the $435 a month was "a starting salary and that depending on her performance there were growth opportunities both position wise and economically " McNeely, between the latter part of August and her termina- tion on September 6, engaged in a number of separate conver- sations with Debra A. Groves, Plant Manager Louch's secre- tary, and Paula Caranese, the then secretary to Packaging Director Val Kuplis, concerning the low clerical salaries be- ing paid by the Company. The three employees worked in offices close to each other in the plant location. Specifically, McNeely gave the following testimony regarding her conver- sations with Groves: These discussions with Groves occurred almost every day during that period, mostly in the ladies' room before work and sometimes at Groves' desk. Both of them used these occasions to express their dissatisfaction with the prevailing low clerical salaries and, in particular, their own. On one occasion on August 30, after McNeely had given Groves her salary check,' Groves spoke to her later, in the day and told her that she still had not received a raise in the new job to which' she had recently been transferred! McNeely suggested to Groves that she ask her boss for a raise because she had been promoted to her present job without an increase in pay. The upshot of this conversation was that both of them decided to speak to their respective bosses "and do something about" getting raises.' On September 6, about 7:45 a.m., before the start of work, McNeely met Groves in the ladies' room and informed her that she intended to ask Mallory for a raise that day and suggested that Groves do the same. Groves agreed with the suggestion. Contradicting McNeely, Groves testified that she had only one conversation with McNeely and that took place about 2 days before McNeely's discharge10 at the copy machine next to Groves' desk. According to Groves' account, the following transpired: This conversation, which lasted only "a few mi- nutes, just long enough to make a copy," opened up with Groves asking McNeely how she had met her boyfriend. McNeely replied that she had met him at the radio station where she had been previously employed. This led to McNee- ly's comparing her salary at the radio station with the lower salary the Respondent was paying her. McNeely then de- clared her intention to request from Mallory a 9100 increase. Groves further testified that McNeely never told her to ask for an increase nor did McNeely inquire how much she was making. Groves also denied informing McNeely how much I One of McNeely's duties was to distribute the salary checks among clerical employees in the area 8 It appears that Groves started working for the Respondent on July 10 as a temporary replacement in the file room Subsequently, at an undisclosed date before the above conversation, Groves was transferred to her present job as secretary to Plant Manager Louch without an increase in salary. 9 McNeely testified that Groves told her that thereafter on two separate occasions she had asked her boss for a raise and that her boss replied that he would see about it Groves, however, contradicted McNeely and denied that she requested an increase at those times or reported to McNeely that she had. Groves, nevertheless, testified that in November she asked her supervisor, Louch, for an increase, which was granted in the middle of that month It is noted that, although Petti and Mallory testified that it is normal company policy not to grant an increase earlier than 6 months after the beginning of employment, Groves received her increase 4 months after she was hired 10 It appears from Groves' account that McNeely was not yet married at the time of this conversation If this is so, the conversation could not have taken place about September 4 since McNeely had been married in August. Probably, this was one of several conversations that McNeely testified she had with Groves. JEANNETTE CORPORATION she was earning." In disagreement with Groves ' testimony, McNeely testified that she did not mention to Groves that she wanted a $100 raise, although she did make that statement to Caranese, as related below. I find McNeely's account of her several conversations with Groves, who is still in the Respondent's employ, as reason- able and worthy of belief. McNeely impressed me as a sincere and candid witness who was not prone to contrive testimony to support her case. I, accordingly , credit her testimony. As indicated above, McNeely testified that she also dis- cussed the-subject of a salary raise with Caranese. Thus, McNeely credibly testified: About 9:30 the same morning. (September 6), McNeely went to Caranese's office where McNeely expressed to Caranese her discontent with the sal- ary she was being paid, asserting that she had been hired at a starting salary of $435 a month with the understanding that she would receive a raise as soon as she showed that she was capable of handling her job. McNeely also told Caranese that she wanted a $100 raise . In response, Caranese indicated her dissatisfaction with the salary she was receiving and referred to McNeely's predecessor who had quit because of,her dis- satisfaction with the salary she was paid. Caranese's version of this episode, as she recalled it, is essentially consistent with McNeely's, although there are in- consequential variances in their testimony . According to Caranese, on September 6, she and McNeely discussed the general subject of salaries. In the course of this discussion, McNeely stated that she was hired at $435 a month and that at the time of hiring she was promised more because she had told the Company that she would not work for that amount. McNeely then said that she was going to ask for a $100 raise. 3. McNeely's request for a raise; her subsequent report to Groves and Caranese Later in the morning of September 6, McNeely entered Vice President Mallory's office to request a raise. McNeely testified that there she informed Mallory that at the time she was hired Personnel Director Petti told her that her monthly salary of $435 was only a starting salary and that it would be raised as soon as she showed that she was capable of handling the job. She further testified that, after commenting that nothing had been done about a raise, she inquired of Mallory when she would get one, and that Mallory replied that he would talk to Petti and get back to her. On this note, the meeting ended . Although McNeely had previously indicated to Caranese that she intended to ask for a $100 raise, it is undisputed that she did not specify any amount to Mallory. The only difference between McNeely's and Mallory's ac- count of this conversation is that, according to Mallory, McNeely told him that "she had been promised a raise [by Petti] after she had been there some time." Consistent with McNeely's testimony, Mallory testified that, when McNeely indicated that she believed that the time for a raise had arrived, he replied that he would speak to Petti. I find that McNeely's testimony that she informed Mallory that Petri told her at the time she was hired that her salary would be raised if she demonstrated her ability to handle the McNeely testified that, in one of these conversations, Groves told her that she was being paid $2 an hour There is no evidence that this was actually not Groves' rate of pay before she received an increase in Novem- ber. 655 job is, in all probability , a more accurate and reliable account than Mallory's testimony that McNeely told him that Petti_ had promised her an increase at some indefinite time in the future." It is clear that McNeely's testimony reflects the statement Petti actually made to McNeely at the time of her employment and, since concededly McNeely's performance proved to be "very satisfactory," there appears to be no con- ceivable reason why she would not disclose to Mallory Petti's earlier statement, as she testified. I therefore credit the tes- timony of McNeely whom I have found to be a credible witness. After leaving Mallory's office, McNeely went to Groves' office and informed her that she had asked Mallory for a raise. Groves, in turn, told McNeely that in the morning she had also spoken to her boss about a raise and that her boss stated that he "was going to see about it." Following this conversation, McNeely also informed Caranese that she had requested a raise from Mallory and that she was very hopeful because she was not given "an immediate no."13 4. Subsequent events leading to the decision to discharge McNeely According to Mallory, within an hour after speaking to McNeely, he went to Personnel Director Petti's office where he discussed with Petti McNeely's request for a raise, as follows: Mallory asked Petti whether he had told McNeely that she would get an increase . Petti answered in the negative and, in response to Mallory's further question as to what he had told her when she was hired , Petti said that he stated that it was "a beginning situation . . . depending on how well you do, how far you advance, what responsibilities you are able to take on, we will see how you advance." Petti also advised Mallory that he had made no promise of an increase. The conversation concluded with Mallory instructing Petti to dis- cuss the matter with McNeely who was under an erroneous impression concerning her right to an increase . Petti agreed to do so.14 No decision was made at this time whether or not to grant McNeely an increase or to terminate her; nor did Petti speak to her until he discharged her near the close of the workday. In the meantime, after McNeely had apprised Caranese of her intention to request a wage increase , Packaging Director Val Kuplis entered Caranese's office and invited her to his. When they arrived there, Kuplis inquired why Caranese was upset. In response, Caranese stated that she was upset over "working conditions , salaries and things" and the fact that some employees are paid higher salaries than other girls who "work really hard." When Kuplis further inquired what, in particular, brought this on and why she was "down on the company," Caranese answered that she had been talking to another employee who, although the employee was there a 12 As will later be discussed , the Respondent relies on Mallory's and Petti's testimony to establish a willful misrepresentation by McNeely and thereby to justify, in part, her discharge 13 These findings are based on the credited testimony of McNeely and Caranese 14 Petti's version of this conversation was substantially the same. Accord- ing to his testimony, he denied promising McNeely a wage increase , adding that at the time she was hired he told her that her salary was a "starting salary and that contingent on her development, there were growth opportunities both financially and position wise " 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shorter time than she was, that employee was making more money than she was and "was going to ask for a raise." Kuplis then asked whether Caranese's problem was that she wanted more money and Caranese answered in the negative. Finally, in reply to Kuplls' question, Caranese identified McNeely as the girl to whom she was referring. Kuplis ended the conversation, saying that he would talk to Caranese later in the day.15 Thereafter, about 3 o'clock in the afternoon, Kuplis went to Mallory's office and advised Mallory of his conversation with Caranese. According to Mallory, Kuplis told him that he had learned from Caranese that McNeely had informed Caranese that Mallory had granted McNeely a $100 salary increase, which upset Caranese. As found above, there is absolutely nothing in Caranese's uncontroverted testimony that she had conveyed to Kuplis such groundless information concerning a raise. Mallory further testified that, as a result of Kuplis' disclo- sure, he summoned Petti to his office to consider with him and Kuphs the disturbing developments. According to Petti, the three of them thereupon reviewed "these stories" about Caranese approaching Kuplis and requesting a raise16 be- cause she had been in the Respondent's employ longer than McNeely and was making substantially less money than McNeely, and because McNeely informed Caranese that she was granted a $100 raise, which was false. Both Mallory and Petti testified that a decision was then reached to terminate McNeely. Mallory testified that the reasons for this decision were McNeely's breach of confi- dence in discussing her salary with an employee; her fabrica- tion and willful misrepresentation to an employee (Caranese) that she had received a $100 salary increase; 17 and the fact that the episode involving the vice president's office was "a very disturbing element." Petti, in his testimony, added another reason for McNeely's discharge-her misrepresenta- tion to Mallory that he (Petti) had promised her an increase. 5. The discharge At or about 4:45 p.m., near the close of the workday on September 6, McNeely was called into Petti's office. Petti referred to the conversation he had had with Mallory in the morning in which he learned that McNeely had requested a raise. Noting that he could not remember what he had told her when she was hired, McNeely stated that there must have been some misunderstanding between them since wage rates were not usually reviewed until 6 months after employment. He then informed McNeely that she was being terminated because she had broken the Company's policy of confidence in discussing her salary with another office employee. McNeely replied that she had never heard of such a rule, nor was she ever advised of its existence when she was employed. Petti, however, stated that the rule had been in effect for some- time. McNeely repeated that she was unaware of the rule or 15 The foregoing narration of the conversation between Caranese and Kuplis is based on the former's undisputed testimony , which I credit Kuplis was not produced as a witness 16 There is absolutely no evidence that Caranese requested a raise. Indeed, the evidence is to the contrary. 17 Mallory testified that it was not the Company's policy to discharge employees simply for requesting a wage increase that she had done anything wrong and apologized for discuss- ing her salary with anyone. When she also argued that dis- charge was too drastic a penalty for her act, Petti disagreed and asserted that it was serious enough to warrant dismissal since the employee with whom McNeely had discussed her salary had been in the Company's employ for 2 years and was earning less than she was. Moreover, Petti noted, when that employee learned that McNeely was also requesting a raise, she mentioned McNeely's request to her supervisor who, in turn, complained to Mallory. At the conclusion of the dis- charge interview, Petti told McNeely, who was then in tears, that he would give further thought to the matter and call her the next morning. Nothing was said by Petti in this conversa- tion that her discharge was due to her misrepresentation of facts to Caranese. Indeed, when McNeely asked Petti whether there were any additional reasons for her termina- tion other than her salary discussion with another employee, Petti answered in the negative. At or about the same time as McNeely's discharge inter- view, Kuplis summoned Caranese to his office a second time. On this occasion, Kuplis informed Caranese that as of 5 p.m. McNeely's employment with the company would cease. In response to Caranese's question, Kuplis told her that the reason for the discharge was that McNeely "had broke [sic] strict confidential information " in discussing her salary with Caranese in violation of company policy. Kuplis also added that he was supposed to fire Caranese also because she and McNeely "both talked too much."18 As promised, Petti telephoned McNeely the following morning (September 7) and advised her that he had to adhere to his decision to fire her. B. Concluding Findings 1. With respect to the Respondent's rule The complaint alleges, and the answer admits, that the Respondent maintains in effect a rule prohibiting employees from discussing wage rates among themselves. I find that this unqualified rule constitutes a clear impediment to, and a restraint upon, employees' Section 7 right to engage in con- certed activities for mutual aid and protection concerning an undeniably significant term of employment. Accordingly, I find that the rule violates Section 8(a)(1) of the Act, whether or not the rule is viewed as a matter of company policy, as the Respondent describes it in its brief. 2. With respect to McNeely's discharge It is the General Counsel's position that McNeely's salary discussions with clerical employees Groves and Caranese were a form of concerted activity for mutual aid and protec- tion safeguarded by the Act and that therefore her discharge for engaging in that conduct in breach of the above rule violated Section 8(a)(1) of the Act Conceding that one of the reasons for the discharge was McNeely's discussion of her salary with Caranese in breach of the Respondent's "policy of confidence," it, nevertheless, contends that McNeely's ter- . mination was permissible since her activity did not contem- 18 The findings concerning this second Kuplis-Caranese conversation are also based on the latter's undisputed testimony which I credit. JEANNETTE CORPORATION plate nor relate to group action but was designed solely to secure an increase for herself and hence it did not amount to protected concerted activity. In addition, the Respondent urges that the discharge was lawful because it was motivated by McNeely's willful misrepresentation to Caranese that she had received a $100 increase in salary and by her misrep- resentation to Vice President Mallory that she had been promised an increase by Personnel Director Petti at the time she was hired. I find, in agreement with the General Counsel, that McNeely's termination violated Section 8(a)(1) of the Act. Section 7 of the Act guarantees to employees "the right to ... engage in ... concerted activities for the purpose of ... mutual aid or protection . . . ." To terminate an em- ployee for exercising this right violates Section 8(a)(1) of the Act.19 Even if the discharge is caused in part only by the employee's protected concerted activities, it is similarly un- lawful, despite the existence of good grounds for terminating him.20 Of course, under the plain language of the Act, only employee concerted activities are protected. To qualify as concerted activity, as one court observed, it must be "engaged in with the object of initiating or inducing or preparing for group action or . . . [have] some relation to group action in the interest of the employees. 1121 The same court also pointed out that "preliminary discussions are [not] disquali- fied as concerted activities merely because they have not resulted in organized action or in positive steps toward pre- senting demands."22 This must be so "inasmuch as almost any concerted activity for mutual aid and protection has to start with some kind of communication between individuals [and] it would come very near to nullifying the rights of organization and collective bargaining guaranteed by Section 7 of the Act if such communications are denied protection because of lack of fruition."23 On the other hand, "in some circumstances entirely individual action or speech is not con- certed activity" and may amount to no more than an un- protected personal gripe or complaint.24 Guided by these principles, I find that McNeely's discus- sions with Groves and Caranese fall within the ambit of concerted activity for mutual aid and protection safeguarded by the Act. As found above, these were discussions in which the three named employees aired their dissatisfaction, not only with their own salaries but also with the low level of clerical salaries generally prevailing at the Company's estab- lishment about which other employees were similarly com- plaining among themselves. Moreover, it is clear that, in McNeely's conversations with Groves, McNeely also urged Groves to speak to her supervisor, Plant Manager Louch, about a raise for herself. Viewing the substance of McNeely's 19 N.L.R.B v. Washington Aluminum Company, Inc., 370 U S. 9, 16-17 (1962). 20 N.L R B. v Adam Loos Boiler Works Co., 435 F.2d 707 (C.A. 6, 1970), J.P. Stevens & Co, Inc. N.LR.B, 380 F 2d 292, 300 (C A. 2, 1967), cert denied 389 U.S. 1005 (1967). 21 Mushroom Transportation Company, Inc v. N.L.R.B., 330 F.2d 683, 685 (C.A 3, 1964), see also Signal Oil and Gas Co v. N.L.R.B, 390 F.2d 338, 342 (C A. 9, 1968), Hugh H. Wilson Corporation v NLR B., 414 F 2d 1345, 1354 (CA 3, 1969). 22 Mushroom Transportation, supra, 685. 23 Ibid. 24 Signal Oil, supra, 342, see also Hugh H. Wilson Corporation, supra, 1348 657 salary discussions, involving as they did a matter concededly of legitimate concern to the clerical employees, I am per- suaded that they were designed to do more than simply dis- close McNeely's' intention to seek an increase in' her own salary. Rather, I find that McNeely's discussions also reflect the usual preliminary steps leading ultimately to group action aimed at improving the salaries of other clerical employees, as well. Indeed, at the hearing, when questioned by the Re- spondent's counsel as to what she had attempted to accom- plish by talking to Groves and Caranese concerning their salaries, McNeely answered, "Getting better wage rates for the clerical workers . . . [b]ecause other clerical workers at Jeannette Corporation are paid on a very minimum scale." Particularly apropos is the observation of the Fourth Circuit" that "The activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much `concerted activity' as is ordinary group activity. The one seldom exists without the other." The fact that McNeely subsequently asked her supervisor, Vice Presi- dent Mallory, for an increase for herself or that she expressly urged Groves to request a raise from her supervisor, Plant Manager Louch, does not negate the concerted character of her activity or militate against a finding that group action was contemplated. This individual approach to obtain a wage increase was necessitated by the fact that McNeely and Groves were assigned as secretaries to company officials who apparently controlled the salaries they were paid and had no other clericals under their direct supervision. In view of the foregoing, I find that McNeely was entitled to statutory protection in engaging in the salary discussions with employees Groves and Caranese and that her discharge for such activity was violative of the Act.26 The Respondent, nevertheless, argues that McNeely was vulnerable to dis- charge because she had willfully misrepresented to Caranese that she had received from Mallory a $100 raise and because she misrepresented to Mallory that Petti had promised her an increase when she was hired. However, as indicated above, even if these were valid grounds for terminating McNeely, her discharge, in part, for engaging in protected concerted activity would still be violative of Section 8(a)(1) of the Act. At any rate, apart from the fact that the other reasons ad- 25 Owens-Corning Fiberglas Corporation v. N.L.R B., 407 F 2d 1357, 1365 (C.A 4, 1969) 26 The cases relied on by the Respondent for a contrary result are factually distinguishable Thus, for example , in Dennis Maietta & Frank Maietta a partnership, d/b/a Maietta Trucking Company, 194 NLRB 794 (1971), the Board found no violation in the discharge of an employee who requested a wage increase for himself and not, as in the present case, for engaging in discussions preliminary to group action In Plastic Composites Corp., 210 NLRB 728 (1974), no violation was found in the discharge of an employee for falsely informing fellow employees in a casual conversation having no group action objective that higher rates were paid at his former employer's plant. In N.LR.B v Office Towel Supply Co, Inc, 201 F.2d 838 (C A 2, 1953), the court held that an employee's remark that this was "a hell of place to work" was mere griping and not a form of concerted activity whose existence was known to the company and her discharge was therefore per- missible. In Indiana Gear Works, a Division of the Buehlor Corporation v N.L R.B. 371 F 2d 273 (C A 7, 1967), the court upheld the discharge of an employee who prepared and posted cartoons ridiculing the company's presi- dent, finding no evidence that the employee's conduct was for the purpose of inducing group action. In N.L.R.B. v Buddies Supermarkets, Inc., 481 F 2d 714 (C.A. 5, 1973), the court held that the discharge was for individual griping and not for concerted activities and therefore was similarly permissi- ble 658 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD vanced by the Respondent were not even given to McNeely at the time of her discharge, the reasons themselves are with- out evidentiary support. As previously found on the basis of uncont-radicted testimony, McNeely told Caranese only that she intended to ask Mallory for a $100 increase and not that she had receivedone and it was this intention of McNeely that was conveyed to Packaging Director Kuplis. With respect to McNeely's purported misrepresentation the Petti had prom- ised her an increase, the evidence indicates that McNeely simply informed Mallory that she was told by Petti that she would be considered for a raise at some indefinite time in the future if she proved her ability to perform her job. I fail to perceive any willful misrepresentation in the latter statement or anything so reprehensible in McNeely's conduct in dis- cussing her salary with employees as to warrant depriving her of statutory protection. By the same token, I find that McNeely's purported willful misrepresentations were, at best, pretexts for her discharge. Accordingly, it is concluded that McNeely's discharge vi- olated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Cheryl A. McNeely for engaging in pro- tected concerted activities for mutual aid and protection, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By maintaining in effect an unqualified rule or policy prohibiting employees from discussing wage rates among themselves, the Respondent has imposed an unlawful impedi- ment and restraint upon employees' right to engage in con- certed activity for mutual aid and protection guaranteed by Section 7 of the Act and thereby is in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommended: ORDER27 III THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and like and related conduct and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent unlawfully dis- charged employee McNeely because of her protected con- certed activity. To remedy this unfair labor practice, it is recommended that the Respondent offer McNeely immediate and- full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of her unlawful discharge by payment to her of a sum of money equal to that which she normally would have earned from the date of her discharge to the date of the offer of reinstatement, less her net earnings during the said period. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962). To facilitate the computation, as well as to clarify the named employee's right to reinstate- ment,' the Respondent shall make available to the Board, upon request, payroll and other records necessary and appro- priate for such purposes. Having also found that the Respondent has maintained in effect an unlawful rule or policy prohibiting employees from discussing wage rates among themselves, I recommend that the Respondent be ordered to rescind and abrogate this rule or policy and notify its employees that it has taken such action and that henceforth they may engage in such discus- sions on the Respondent's premises subject to limitations permissible under the Act. The posting of an appropriate notice is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: The Respondent, Jeannette Corporation, Jeannette, Penn- sylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining employees for engaging in protected concerted activity for mutual aid and protection with respect to wages, hours, or other terms and conditions of employment. (b) Maintaining in effect or enforcing any unqualified rule or policy which prohibits employees from discussing salaries or wage rates among themselves. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized by Section 8(a)(3) of the Act. - 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Rescind and abrogate- its unqualified rule or policy prohibiting employees from discussing wage rates among themselves and notify its employees that it has taken such action and that they may henceforth engage- in such discus- sions on its premises subject to limitations permissible under the Act. (b) Offer Cheryl A. McNeely immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole 27 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and 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. JEANNETTE CORPORATION 659 for any loss of earnings she may have suffered by reason of her unlawful discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all -other records necessary and useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (d) Post on its premises in Jeannette, Pennsylvania, the attached notice marked"Appendix."28 Copies of said no- tice, on forms provided by the Regional Director for Region 6, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, where no- tices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 29 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 WE WILL NOT discharge or otherwise discipline em- ployees for engaging in protected concerted activities for mutual aid and protection with respect to wages, hours, or other terms and conditions of employment. WE WILL NOT maintain in effect or enforce our un- qualified rule or policy prohibiting employees from dis- cussing wage rates among themselves. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing , to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. WE WILL rescind and abrogate our unqualified rule or policy prohibiting employees from discussing wage rates among themselves and we will notify them that we have taken such action and that henceforth they may engage in such discussions on our premises subject to limitations permissible under the National Labor Relations Act. WE WILL offer Cheryl A. McNeely immediate and full reinstatement to her former job, or, if that job no'longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of her unlawful discharge. JEANNETTE CORPORATION