Egar Employment, Inc.

EGAR EMPLOYMENT, INC. 113 Egar Employment, Inc. and Margaretha J. Burress. Case 8-CA-13056 March 19, 1981 DECISION AND ORDER On October 9, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief in opposition to the General Counsel's exceptions. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations 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. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect 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 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. DECISION BERNARD RIES, Administrative Law Judge: This case was heard in Cleveland, Ohio, on April 16, 1980. At issue is whether the discharge of Margaretha J. Burress on March 16, 1979, violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended. At the hearing, Respondent agreed that its volume of business meets the Board's jurisdictional standard, and I conclude that it is appropriate for the Board to exercise jurisdiction herein. The parties have filed briefs, which I have fully considered, together with the entire record' and my recollection of the witnesses as they testified. This consideration has led me to the following findings of fact and conclusions of law. Respondent is an employment agency. At material times herein, it employed five counselors whose function was to secure permanent employment for applicants. One such counselor was Margaretha (nicknamed "Petra") Burress, who entered Respondent's employment in De- cember 1976 and was discharged on March 16, 1979. The complaint alleges that Burress was discharged "be- cause she had engaged in, or Respondent believed she had engaged in, concerted activities for the purpose of collective bargaining or other mutual aid or protection." I Certain errors in the transcript are hereby noted and corrected. 255 NLRB No. 16 The record makes it clear that Burress engaged in no activities, concerted or otherwise, "for the purpose of collective bargaining," and the General Counsel does not attempt to contend otherwise. The questions presented by this record are: (1) for what reason or reasons was Burress fired; and (2) does a discharge for such reason or reasons impinge upon the right afforded her by Section 7 of the Act "to engage in other concerted activities for the purpose of ... other mutual aid or protection." At the hearing, Burress gave a succinct description of what Elaine Egar, her employer, told her on March 16, 1979, as to the reasons for her discharge. The first "reason why was that she had found out from ex-em- ployees that I had warned them about keeping a double set of records of our commissions." The evidence per- taining to this subject shows that it is customary for counselors to keep their own personal records of success- ful referrals so that they may audit the commissions paid to them by Respondent; in fact, Elaine Egar has routine- ly advised new counselors to maintain such records.2 In May 1978, however, when counselor Maria Heckaman transferred to another agency, she and Egar had a dis- pute over the commissions owed her, and Egar tore up Heckaman's personal records.3 Thereafter, Burress, aware of this incident, began keeping a second set of personal records at home, against the possibility that such an untoward event might recur, and on three occasions mentioned to new counselors that they would be well advised to do the same. She said this to Jill Lindheim around June 1978 when Lindheim began employment,4 she so advised Eileen Thies "somewhere in November of '78,"5 and she also told this to new em- ployee Merrill Kirschner, who started in January 1979. A second reason for discharge, referred to by Egar on March 16, was "that I [Burress] was a liar because she [Egar] found out that I had taken a day off in August and reported in sick when in fact I really wasn't sick, and I had advised one of the other counselors to do the same."6 Burress explained that in August, some 7 months 2 Respondent's bookkeeper also maintains similar business records. S Egar testified that she did so because of her belief that Heckaman intended to take the names of applicants and companies to the rival agency. 4 Lindheim testified that Burress told her to "keep a list of every appli- cant, their address, and their home phone number. If I should ever leave Egar Employment, I would have it, 'just in case."' Lindheim, who testi- fied for Respondent, appeared to be a trustworthy witness, but it is possi- ble that her memory betrayed her in this instance, and what Burress actu- ally suggested was that she preserve a list of the commissions due her. Some confirmation for such a conclusion is found in Lindheim's testimo- ny that she did not follow the advice because she "trusted Elaine." The concept of "trust" would suggest that the issue was one of keeping track of moneys due the counselor. On the other hand, Lindheim subsequently testified that she did not know why she used the word "trust," and fur- ther said that she had told Egar, at some time before Burress was dis- charged, that Burress "keeps a list of all the applicants at home. She keeps all the addresses and telephone numbers at home." Testifying prior to Lindheim, Egar had stated that she knew that Burress "kept records of applicants at home," which she found "amusing." It is possible that Lind- heim truly misunderstood Burress' suggestion. 5 The record contains no other reference to such an employee, but her existence was not questioned at the hearing. 6 In subsequent testimony, Burress seemed to recede from the position that Egar had referred to her advising "one of the other counselors to do Continued EGAR EMPLOYMENT, INC. 113 . .J 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before her discharge, she had indeed called in sick on a day when she wanted personal leave. Egar said nothing about the matter until March 16. Burress further conced- ed that, probably in February 1979, she had told new counselor Kirschner that Egar would likely not grant Kirschner a desired day off because Kirschner had been sick for about 2 weeks at the beginning of her employ- ment in January, and she had advised Kirschner to report herself as sick in order to take the day off. A third reason given to Burress by Egar on March 16 was that she was a "disruptive influence" on the other employees. The reference here was to an incident arising out of a counselors' convention in Chicago in September 1978. Prior to the convention, Burress received the ap- parently mistaken impression from new employee Lind- heim that Egar had told Lindheim that she would help to cover Lindheim's convention expenses by directing a "big placement" her way. Burress told this to the senior counselor, Sylvia Massien, who was "sworn to secrecy" about the matter by Burress. Burress also informed the next most senior counselor, Rochelle Goldstein, whom Burress made "swear to God on my children's lives that I would not repeat what she told me." About a week later, notwithstanding her oath, Goldstein apparently said something to Massien about the matter, and the now-public rumor evidently spilled over into a luncheon discussion between Burress, Goldstein, and Massien (and perhaps another counselor) in which they expressed dis- satisfaction about the supposed favoritism to Lindheim. As they returned from lunch to work, passing two other employment agencies along the way, Burress' unhappi- ness led her to suggest that the counselors leave Egar and offer themselves as a group to one of the agencies, but nothing resulted from the suggestion. Soon thereafter, after some prodding by Egar, either Goldstein or Massien told Egar why the three counselors were walking around with somber demeanors. Egar called all the counselors to a meeting, explained that she never intended to favor Lindheim, and told Burress that she should have sought clarification from her rather than convey a mistaken impression to the other counselors. The fourth and final subject to which Egar adverted on March 16 had to do with a deletion of certain infor- mation on an applicant's card. As I understand this some- what obscure record, one Estelle Sciortino had been as- signed to Burress when she applied to Respondent for a job referral as a secretary or office manager. Burress had thought, it would appear, that Sciortino might have the makings of an employment counselor, and she referred Sciortino to Sherry Roberts and Associates, a rival agency and, one may infer, until March 12, 1979, one thoroughly disliked by Egar. 7 When Sciortino went to work for Roberts, an entry to that effect was made on the application card for Sciortino maintained by Burress. When Sciortino left Roberts after a very short time and reapplied to Burress, the latter reactivated Scior- tino's application and scratched out the information that Sciortino had briefly worked for Roberts. Although it is the same." I doubt, however, that Burress would have initially so speci- fied had Egar not made such a reference on March 16. Roberts was formerly employed by Egar. She testified that until March 12 the two women had not spoken to each other for 3 years. not clear why Burress had thought that such information on the card might come to the attention of Egar in the ordinary course of business, it is obvious that she be- lieved that it would, and also believed that it was to her (Burress') advantage to keep the information from Egar.8 The evidence also shows, however, that the fact of the deletion did not come to Egar's attention until, according to her own testimony, she had already decided to dis- charge Burress, so that this incident, at best, served as a confirming reason for a decision already made. There are two principal sources to which one might look for Respondent's explanation of why Burress was discharged. One is the documents filed by Respondent with the Ohio Bureau of Employment Services in an effort to establish that Burress was separated for "just cause," the other is Egar's testimony, which is consider- ably more expansive. Respondent's first reply, on March 22, to Burress' ap- plication to the Ohio bureau for unemployment compen- sation said that "Egar felt claimant was dissatisfied with employment at Egar." When the Bureau, on April 13, held that Burress was discharged "because she was a dis- ruptive influence on other employees," Burress appealed on April 18, stating that she was not disruptive, but that she "did caution new employees about the employer for their own good. I told them to keep a double set of re- cords to assure they would get paid all money due." In response to this assertion, Respondent, on April 19, filed the following response, which bookkeeper Marlene Greenberg prepared for Egar's signature after Egar told her what to include: 1. Claimant states "discharged without just cause. Not a disruptive influence on other employees." FACTS: claimant advised prospective and new employees that: a. they could not and should not trust me (so admitted in her statement). b. they would find it difficult to receive vaca- tion time (claimant's request for even extra vaca- tion time for herself was accommodated). c. personal time off would not be granted and they should "lie" and say they were "ill" which is, in fact, what claimant did on at least one occa- sion of which I am aware and was so admitted by claimant (although claimant was frequently given time off, when requested, for "tennis" tour- naments and matches, personal errands, medical appointments, visits with out-of-town guests, etc.). d. certain employees were treated with "favor." (In the fall of 1978, because claimant misunderstood our policy regarding convention subsidy, she failed to come to me directly to question the situation and determine the facts, but rather she "secretly" spread false information to "And, for [Sciortino] to go to work for [Egar's] enemy would be a lot of explanations to me. How come we lost her, what happened. How come I didn't think of recommending her as a counselor to our agency- it was just a dumb thing." EGAR EMPLOYMENT, INC. 115 other employees who became disturbed. Because the morale of other employees was so adversely effected [sic], claimant was warned about this kind of surreptitious behavior and advised she should have come to me first if she had any ques- tions or was dissatisfied with company policies or interpretation of such policies.) 2. Claimant states, "I was never warned about anything at all." FACTS: claimant was advised on numerous oc- casions to come to me if she was unhappy or had questions rather than to complain to other employ- ees or give new and prospective employees a false impression. 3. Claimant states, "I told them to keep a double set of records to assure they would get paid all money due .... employer did in fact withhold commission a former employee had coming." FACTS: The financial records of any employee and transactions that would effect [sic] employee's commission statement (placements, fall-offs, com- mission payments) are open to that employee at any time. Employees are paid promptly and receive all monies due in accordance with the terms of their contract. In the case of one particular former em- ployee (as alluded to above by claimant), because of extenuating circumstances which involved contrac- tual obligations and legal actions, final commission monies were withheld UNTIL the amount due was satisfactorily agreed to between that employee and Egar and were then paid to this particular employ- ee. Claimant herself is, in fact, still receiving com- mission checks from monies earned. In summation, I feel claimant was discharged WITH just cause and trust the bureau will uphold its initial finding and disallow her claim. Egar moved beyond the boundaries of the foregoing letter in testifying that she fired Burress because of "an accumulation of all these reasons where I could no longer turn my back." She started her testimony by deni- grating Burress' capabilities and temperament, and the record tends to support her on these claims. The evi- dence shows that, in both 1977 and 1978, Burress had the lowest average monthly billings of the counselors then employed and also ranked low in other categories. I also found persuasive the testimony of Lindheim that Burress tended to be "hysterical" and hypertensive, and the testi- mony of Goldstein that Burress was "rigid" in nature. Nonetheless, the testimony also shows that Burress had been retained for 27 months in an office in which clearly unsuitable employees were normally let go after 90 days, and I think this indicates that other reasons predominat- ed and that Burress' skills and attitude alone would not have brought about her discharge on March 16. Indeed, Egar testified that she really needed six counselors at the time, and that until March 16 she had considered that re- taining Burress "was better than just having four coun- selors." 9 The next of the "many reasons" to which Egar re- ferred was that she was a "disruptive influence among the girls." In explaining this, Egar mentioned some sort of unclear breach of confidence by Burress relating to Maria Heckaman, who, as noted above, went to work for the rival Roberts agency in May 1978.10 Egar testi- fied about the matter involving the deletion of the Rob- erts connection from Sciortino's application. She men- tioned the lie by Burress about being sick in August 1978, which, she said, she had learned about from an- other employee on the selfsame day, but had not men- tioned to Burress because she did not wish to betray a confidence. She referred to an occasion on which, to her knowledge, Burress had told a new counselor that she "hated her job" and to another incident in which Burress had told another prospective counselor that she had to fight to get vacation time, which almost caused the ap- plicant to change her mind. She spoke of Burress' having told Kirschner that "I cheated, so she should keep re- cords." She referred to Burress' persistent tardiness, about which she had warned Burress "quite a few times" in 1979. She talked of Burress' habit of "[i]nstead of coming to me with problems, she would talk behind my back," giving the false Lindheim-convention rumor as an example. She said that, while making some public rela- tions calls on customers in the beginning of 1979, she dis- covered that Burress had been "insulting" to a particular applicant for employment in telling her how to dress. " Around the same time, a former applicant told Egar that Burress was not "really that good a counselor." There was also an incident, probably in February 1979, in which, as Egar and Kirschner testified, Burress had told Kirschner that Egar was probably going to fire Kirschner, an action which Egar had evidently never considered taking; Egar found out about this when Kirschner, crying, told Egar what Burress had said. On the subject of the double recordkeeping recom- mended by Burress to other counselors, Egar testified, in answer to a question about Burress' recommending to other counselors that they keep records of their place- ments "in their homes," that the first time she had "heard of" any such conversations was "[t]his morning." We might pause to consider this claim. Burress' April 18 appeal of the bureau's initial decision speaks of her tell- ing employees "to keep a double set of records to assure they would get paid all money due." The April 19 reply filed by Egar refers expressly to this statement as an ad- mission that Burress had said that employees could not "trust" Egar. Moreover, Egar testified that Burress "did 9 Despite Burress' probable shortcomings, the record shows that she was effective at times, as witnessed by five complimentary letters to her from satisfied clients; Egar most likely saw these letters. '0 Later testimony made it appear that Egar did not discover this in- formation until March 12, in the course of a 4-hour talk with Sherry Roberts, and perhaps 2 weeks after her decision to fire Burress had al- ready been reached. I" While Egar said that she spoke to Burress about this complaint, Burress, in rebuttal, denied that such a discussion had occurred. Burress did not attempt to rebut any of the other allegations made by Egar. EGAR EMPLOYMENT, INC. 11 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tell Merrill Kirschner that I cheated, so she should keep records." 1 2 There is a difference, however, between keeping com- mission records and keeping commission records "in their homes." As noted above, Respondent actually en- couraged the counselors to doublecheck on their com- missions by maintaining their own records. Thus, the keeping of personal records per se would come as no sur- prise to Egar. The question put to Egar, referred to above, pertained to when she had first known that Bur- ress had told employees to keep commission records "in their homes." Although Lindheim testified that she had told Egar at some unknown time that Burress kept "in her home" a list of all applicants, that is not the same as commission records. While Egar testified that, at some point before Kirschner quit her employment on or about March 13, Kirschner had told her that Burress had ad- vised her "to keep her own records because I [Egar] cheated," the reference to keeping "her own records" was nothing new or startling, since Respondent also en- couraged the practice; it was the allegation of "cheating" which Egar had found objectionable. Thus, it does seem possible that, in saying that she had not heard prior to the day of the hearing of Burress' having told employees to keep records of commissions "in their homes," Egar may have been telling the literal truth. She went on to answer "Yes" to the question of whether she found out "indirectly" that Burress had given the advice about keeping personal records to other employees besides Kirschner, at first saying that she made this discovery "prior" to the discharge, and then saying that she did not "remember" whether it was prior or subsequent thereto. Egar testified that the incident which moved her to decide to discharge Burress occurred around March 1, when Kirschner came to her and reported that Burress had urged her to make a false report of sickness in order to get a day off. That, she said, was "the straw that broke the camel's back." Kirschner, no longer in Re- spondent's employ, confirmed that she had so informed Egar, probably about the time mentioned by Egar. Why Egar waited until Friday, March 16, to effect the dis- charge is decidedly unclear. Although she first said that the delay was occasioned by the need to make prepara- tions for the loss of a counselor, she apparently did noth- ing to that end until after Burress left. This is not a case, however, in which the delay is necessarily suspicious, since the General Counsel has proved no intervening protected activity, subsequent to the suggestion to Kirschner that she should lie, which might be said to be the real catalyst for the delayed termination.a The General Counsel, poking around in the pile of rea- sons for discharge, offers the theory that what "probably happened" was that, after the convention incident in September 1978, "Egar was unhappy with the fact that Burress had almost caused a walkout and when Egar learned from Kirschner in late February or early March that Burress had advised employees to keep a double set 12 Kirschner did not recall having told Egar about this "during [her] employment at Egar." 3 Perhaps the delay may be accounted for by Egar's supplemental tes- timony that she also "had to get herself together to do this." of records, and when this fact was confirmed by Lind- heim, Egar determined to rid herself of Burress."14 He argues that both "advising other employees to keep a set of records at home to insure that they received proper payment" and Burress' activities with respect to inform- ing other employees about the Lindheim-convention matter constituted protected activity under Section 7 of the Act. The General Counsel questions the suggestion to Kirschner to lie about being sick as not only not being the camel-back-breaking straw, but as not even being "a factor in the discharge of Burress." He makes the follow- ing arguments in this regard. Egar "acknowledged that on March 16, 1979, she never told Burress that this was one of the reasons she was being discharged because she wanted to protect Kirschner from Burress even though on that date Kirschner had already resigned." Egar, who erroneously thought in her initial testimony that Kirschner was still in her employ on March 16, and then recalled that Kirschner had already left a few days before that date, explained at the hearing that she had not mentioned the incident because Kirschner had asked her not to "say anything." She then went on to testify, however, that she in fact "may have" told Burress that she knew Burress had told another employee to lie, but she was "sure [she] didn't tell her it was [Kirschner]." Finally, she said she did not "recall" whether or not she mentioned this incident to Burress on March 16. But the fact is, as earlier described, that Burress herself testified that Egar had, on March 16, referred not only to Bur- ress' own lie about being sick the previous August, but also to the fact that she knew that Burress had "advised one of the other counselors to do the same." This testi- mony by Burress indicates that Egar did attach impor- tance to the issue of advising another employee to lie.' 5 The General Counsel further contends that the matter could not have been deemed significant by Egar because "Kirschner never took the advice given by Burress" and "Respondent would have lost no money if Kirschner had in fact heeded Burress' advice." '" When it comes to an issue of one employee counseling another to lie to an em- ployer, these considerations do not seem compelling. Of more arguable significance, perhaps, is the testimony, conceded by Egar, that her counselors were told to advise job applicants that, if they were unable to get time off from their present jobs to attend interviews, they should feign illness. The argument is that, if Egar sanctioned such mendacity by her customers, she would not find it abhorrent when practiced by her employees. That is a relentlessly logical view of human nature which is not necessarily compatible with my own experi- ence. Moreover, Egar might well distinguish between counseling a lie in order to attain new employment and counseling a lie in order simply to take a day off from work. 14 As previously noted, Lindheim did not testify that she had told Egar that Burress had advised her to "keep a double set of records," and she was uncertain about when she told Egar that Burress had advised her to keep a list of "applicants." '5 The matter is also referred to in Respondent's April 19 letter to the Ohio bureau. I6 The counselors were compensated strictly on a commission basis. EGAR EMPLOYMENT, INC. 117 Thus, given the testimony of Egar and Kirschner that the latter told the former about the suggestion to lie in early March, given the fact that Egar did refer to the matter in her interview with Burress on March 16, and given that, so far as we know, it was chronologically the final incident preceding the decision to discharge, it is not easy to say, as the General Counsel does, that this incident was not in fact the one which did the camel in, as Egar asserted. 1 7 Although I have indicated above that the counseling- to-lie incident was, as far as the record shows, chronolo- gically the final incident prior to the determination to discharge Burress, I might possibly be in error on that score. The timing of one of the two matters which the General Counsel asserts to be protected concerted activi- ty for which Burress was, at least in part, terminated- the advice to employees to keep records of their commis- sions at home-may also have been brought to Egar's at- tention around the same time. Again, precisely what was told to Egar about this subject, and when, is not clear on this record. Egar, as noted, testified that she had been told by Kirschner that Burress had said that she "cheat- ed," and that Kirschner should keep "her own records." As indicated, there is a basis for believing that the keep- ing of "her own records," an accepted practice in the office, would not have been offensive to Egar, while the reference to "cheating" would have been.' When it was that Kirschner told Egar about this is un- certain. Egar said it occurred "somewhere in February" and that "[t]he conversation about me cheating came before Merrill Kirschner told me that Petra Burress said that Merrill should lie about taking time off." Kirschner was asked whether, "during [her] employment" with Re- spondent, she had ever discussed with Egar "the keeping of such personal placement records in your home." Kirschner's answer was, "Not to my recollection." Kirschner was a straightforward and impressive witness. Since she did recall clearly the conversation with Egar about Burress' suggestion that she lie, I presume that, if, as Egar says, Kirschner also at some point told Egar that Burress had accused Egar of having cheated, it did not occur in that same conversation, but probably at some earlier time. 19 Burress first testified that on March 16 Egar had referred to Burress' having "found out from ex-employees that I had warned them about keeping a double set of records of our commissions." When later asked if Egar had mentioned any specific employee, Bur- ress said, "Just Eileen Thies." As earlier mentioned, the 17 I should note that, despite the encomiums to her character and pro- bity given by witnesses at the hearing, I do not find the testimony given by Egar to be irresistibly convincing in all aspects. The record shows that she rather frequently changed her mind about facts. She impressed me as a basically honest person, however, and I am really not sure whether the inconsistencies and contradictions in her testimony denoted fabrication or whether they were the unavoidable result of attempting to accurately recollect the details of a series of unconnected events which had occurred more than a year prior to the hearing. '8 "Records they kept; that was part of my procedure, but it was the fact that she said that I cheated." 19 Of course, since Kirschner was only asked whether she said any- thing to Egar about keeping such records "during her employment," it is conceivable that she did so after she was terminated on or about March 13 but prior to March 16. There is simply no way to know whether this is so. record is devoid of any information about Thies or when she might have spoken to Egar on the subject. In short, there is no basis for concluding that the alle- gation of cheating came at the same time or subsequent to the Kirschner-Egar conversation about the suggested lie and no reason to conclude that the suggestion to Kirschner to lie was not the camel's death wound as Egar testified. That the advice to lie-which the General Counsel does not argue to be protected activity-may have been the precipitating event, however, only puts the facts in some perspective; it does not resolve the problem. In Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980), the Board has recently held that, in deciding the question of whether a forbidden causality exists in 8(a)(3) and 8(aX)(1) 20 cases, the General Counsel must first "make a prima facie showing sufficient to sup- port the inference that protected conduct was a 'motivat- ing factor' in the employer's decision. Once this is estab- lished, the burden will shift to the employer to demon- strate that the same action would have taken place even in the absence of the protected conduct." Ibid. As the Board pointed out in Wright Line, the courts have taken various positions on the issue of the proper burden of proof, with some holding "that the Board has the burden of making a clear showing that the employer's dominant motive was not a proper business one." N.LR.B. v. Fibers International Corporation, 439 F.2d 1311, 1312 (Ist Cir. 1971); Gould Incorporated v. N.LR.B., 612 F.2d 728, 734 (3d Cir. 1979). In the present case, the record's lack of clarity makes it uncertain what factors predominated in the decision to fire Burress. It is clear, however, that the two matters relied upon by the General Counsel played some role in that decision. The question of whether either or both of those subjects constituted protected concerted activity under Section 7 consequently requires discussion. The right afforded employees by Section 7 "to engage in . . concerted activities for the purpose of ... other mutual aid or protection" may be exercised in a spec- trum of activities. The most clearcut example of such protected activity occurs when a group of employees collectively protest an employment condition of mutual concern by going on strike, signing a petition, or engag- ing in similar overt group conduct. N.LR.B. v. Washing- ton Aluminum Company, Inc., 370 U.S. 9 (1962); The Youngstown Osteopathic Hospital Association, 224 NLRB 574 (1976). The statutory requisite of "concerted activi- ties" may, however, be satisfied by less obvious behav- ior. In recognition of the fact that concerted activity must normally be first conceived in one mind and com- municated to another before collective action can be achieved, it has been held that activity may be concerted enough if there is "only a speaker and a listener" (Salt River Valley Water Users Association, an Arizona Corpora- tion, 99 NLRB 849, 853 (1952)), or a pamphleteer hand- ing out broadsides to his fellows (Dreis & Krump Manu- facturing Company, Inc. v. N.L.R.B., 544 F.2d 320 (7th Cir. 1976)). Permitting an employer to truncate such rel- 20 Ibid. EGAR EMPLOYMENT, NC. 117 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD atively minimal, but nonetheless potentially meaningful, activity would operate to "make certain that the seed would never germinate." N.L.R.B. v. Sam Wallick and Sam K. Schwalm, d/b/a Wallick and Schwalm Company, et al., 198 F.2d 477, 482 (3d Cir. 1952).21 But it is not enough simply that a speaker have the ear of a listener; the conversation, as the statute says, must be "for the purpose of... other mutual aid or protec- tion" in order to be safeguarded by Section 7. Generally speaking, this element of purposiveness has been con- strued to require a showing that some sort of collective action be contemplated or implicated in the conduct. Thus, in Mushroom Transportation Company, Inc. v. N.LR.B., 330 F.2d 683, 685 (3d Cir. 1964), the court held that conduct is protected only "if it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees." In Hugh H. Wilson Corporation v. N.L.R.B., 414 F.2d 1345, 1348 (3d Cir. 1969), the court stated that "[m]ere griping about a con- dition of employment is not protected, but, when the 'griping' coalesces with expression inclined to produce group or representative action, the statute protects the activity." In Dreis & Krump Manufacturing Company, Inc., 544 F.2d at 327, the Seventh Circuit held that the mantle of Section 7 extends to "conduct which intends or contemplates as its end-result group activity which will benefit the participants in their status as employees." And in Aro, Inc. v. N.L.R.B., 596 F.2d 713, 718 (1979), the Sixth Circuit recently stated that a claim or com- plaint "must be made on behalf of other employees or at least be made with the object of inducing or preparing for group action." Applying these formulations to the present facts, it does not seem to me that Burress' conversations with three other employees about the prudence of maintaining a second set of records constitutes the sort of purposeful conduct to which Section 7 is addressed. The conversa- tions were casual and sporadic: Burress spoke to Lind- heim in or around June 1978, to Thies sometime in No- vember 1978, and to Kirschner probably in January or February 1979.22 It seems quite clear that Burress did not intend, by these intermittent conversations, to "induce" or "prepare for" or "contemplate" group action, or even that they were "inclined" to accomplish such action. Her admonitions were, rather, plainly de- signed to be useful advice to new employees, no more foreseeably provocative of group action than if she had warned them not to leave valuables unattended in their offices because of lax security in the building. Unlike a' The Board has gone further, holding that, when a single employee makes a complaint to a Government agency about alleged deficiencies in legislatively regulated safety or working conditions without consulting with or acting with the authorization of other employees, it will be pre- sumed that his fellow employees "agree with his efforts to secure compli- ance with the statutory obligations imposed . . for their benefit." Alie. luia Cushion Co., Inc., 221 NLRB 999, 1000 (1975). In an analogous vein, the Board has held that, when an employee presses a grievance that the terms of a collective-bargaining agreement have not been complied with. the activity is concerted because it is an extension of the joint conduct which culminated in the agreement. Interborao Contractors, Inc., 157 NLRB 295 (1966), enfd. 388 F.2d 495, 500 (2d Cir. 1967). 22 The conversation with Kirschner occurred as the two were driving to work one morning. Dreis & Krump, supra, Burress did not "appeal to em- ployees to initiate some type of group activity . .. in support of [her] pending grievance" (544 F.2d at 327), nor did she register a "protest" as in Hugh H. Wilson, 414 F.2d at 1354, nor did her conduct amount to a "claim or complaint" as in Aro, Inc. (596 F.2d at 718.) Burress merely, and irregularly, passed on to new em- ployees what she perceived as helpful advice from a more senior employee. This fact situation, in some respects, calls to mind the Mushroom Transportation case. The discharged employee there, a former union steward with another employer, was fired because he repeatedly told other employees that they were "not getting what they were entitled to" under the collective-bargaining agreement and because it was rumored that the employee "was going to report the Company to the ICC for alleged violations." 142 NLRB 1150, 1157 (1963). The Trial Examiner, whose decision was adopted without comment by the Board, gave alter- native grounds for finding a violation (ibid.): It is plain that Keeler's activities were directly relat- ed to the employees' legitimate interest in terms and conditions of employment. These activities also in- volved attempts by Keeler to implement the exist- ing collective-bargaining contract in a manner in which he felt it to be applicable to himself and to other drivers. Keeler's activities therefore fall within the protected ambit of concerted activities as defined in Section 7 of the Act. Merlyn Bunney, et al., d/b/a Bunney Bros. Construction Co., 139 NLRB 1516. On review, the Third Circuit, applying the standard earlier quoted, refused to hold that "any conversation be- tween employees comes within the ambit of activities protected by the Act provided it relates to the interest of employees." Recognizing that "preliminary discussions are [not] disqualified as concerted activities merely be- cause they have not resulted in organized action or in positive steps toward presenting demands," the court dis- tinguished such conduct from those situations in which it affirmatively "appears from the conversations themselves that no group action of any kind is intended, contemplat- ed or even referred to." The court continued: Activity which consists of mere talk must, in order to be protected, be talk looking toward group action. If its only purpose is to advise an individual as to what he could or should do without involving fellow workers or union representation to protect or improve his own status or working position, it is an individual, not a concerted, activity, and, if it looks forward to no action at all, it is more than likely to be mere "griping." [330 F.2d at 685.] Mushroom was, it seems to me, a stronger case for finding protected concerted activity than the present one, particularly in view of the relationship of the em- ployees' activity in that case to an existing collective-bar- gaining agreement and the consequent applicability, as held by the Trial Examiner, of the Board's Bunney Bros.- EGAR EMPLOYMENT, INC. 119 Interboro rule.2 3 The subjects discussed by the employ- ees in Mushroom were, moreover, of immediate and cen- tral concern to the employment relationship in contrast to the rather remote precautionary measure to which the advice given by Burress pertained. The language used by the Administrative Law Judge in Plastic Composites Corp., 210 NLRB 728, 737-738 (1974), in which an em- ployee was discharged, inter alia, for telling other em- ployees about his rate of pay at a prior job, seems appo- site here: There is no question but that they were engaged in conversation and that George was fired because of the effect, or possible effect, of the subject matter upon other employees. But there is no evidence that as a group or individually any of them did anything or were about to do anything about that subject. Similarly, in Lutheran Social Service of Minnesota, Inc., 250 NLRB 35, 41 (1980), I, without demurrer from the Board, doubted that Section 7 protected "more than 3 months of behind-the-scenes dissatisfaction without any indication of an intention to cultivate it into some more confrontational form of expression." 2 4 It thus seems to me that Burress' casual suggestions to three employees over a 7-8 month period did not consti- tute the sort of "concerted activities for the purpose of . . . mutual aid or protection" which the Congress, in enacting Section 7, sought to make inviolable. I am of the same view as to the other conduct asserted by the General Counsel as a predicate for finding a violation here; i.e., the September 1978 incident involving Lind- heim's trip to the convention.2 5 As to this matter, the evidence clearly establishes that Burress was in fact quite opposed to inciting group action of any sort. Sylvia Massien credibly, and without contradiction, testified that, when Burress spoke to her about the Lindheim incident, "she made me promise that I wouldn't say a word." An even more grave commit- ment was extracted from Rochelle Goldstein, also a wit- ness worthy of belief: Burress "made me swear to God on my children's lives that I would not repeat what she would tell me." Despite these adjurations, the topic ap- parently was adverted to subsequently at a lunch at 23 The court made no specific reference to this particular ground for decision. 24 In that case, I cited as authority the standard enunciated by the Third Circuit in Mushroom Transportation and Hugh H. Wilson Corpora- tion, supra, also without provoking comment by the Board. Judging from the number of approving citations of that line of authority in other Board cases, it appears that the Board has now adopted that standard as its own. E.g., Westmont Tractor Company, 173 NLRB 1188, 1189, fn. 3 (1968); Ross Valley Savings & Loan Association, 194 NLRB 270, 276, fn. 14 (1971); National Grange Mutual Insurance Company, 207 NLRB 431, 438, fn. 19 (1973); Rinke Pontiac Co., 216 NLRB 239, 241-242, fn. 15 (1975); Tram- bull Asphalt Co. Inc., 220 NLRB 797 (1975). 25 Unlike Air Surrey Corporation, 229 NLRB 1064 (1979), in this case Burress did not go to a bank to check Respondent's solvency or take any other affirmative action, other than speaking to fellow employees, which might be considered activity "relat[ing] to conditions of employment that are matters of common concern to all the affected employees." In fact, on the issue of "common concern" both Lindheim and Kirschner testified that they had no interest in keeping a second set of records. See Capitol Ornamental Concrete Specialties, Inc., 248 NLRB 851 (1980). which Burress, Massien, Goldstein, and perhaps another counselor were present. 2 6 It appears to me, consequently, that Burress not only had no intention of inspiring any group response to the supposed favoritism toward Lindheim, but in fact made a positive effort to suppress any such result by solemnly swearing to secrecy the individuals to whom she had communicated the assertion about Lindheim. In this view of the case, it seems unimportant whether or not Egar may have told the Board agent during his investigation that she thought Burress' mishandling of the Lindheim matter almost caused the counselors to walk out 2 7 be- cause it is apparent from Burress' confidential handling of the information that she had no intention of inducing such a group reaction.2 8 I note, moreover, that Egar took no immediate reprisal against Burress for this September 1978 incident, and that the importance attributed by her to its weight in the characterization of Burress as a "disruptive influence" in Respondent's April 19 letter to the Ohio bureau seems relatively slight. The Lindheim matter was the fourth item to which that letter referred. At least two of these four items had apparently first come to Egar's knowl- edge after September 1978, as did a number of others ad- verted to by Egar at the hearing.29 Although it may fairly be said that the Lindheim incident played some part in the decision to fire Burress, it would seem to be a rather small one. As far as this record discloses, the two principal factors in that decision were Egar's genuine anger at the revelation in February or March that Bur- ress had said that Egar had "cheated" an employee (a revelation which, I find, did not have a genesis in statu- torily protected conduct) and the disclosure to Egar in February or March that Burress had advised an employ- ee to lie in order to get some time off (which the Gener- al Counsel does not assert to constitute protected con- certed activity). Thus, even if I were to conclude that the Lindheim-convention matter constituted "protected conduct," I am not certain that I would be able to hold 26 Because I believe Massien and Goldstein, I find Burress' testimony on this point somewhat, perhaps inadvertently, misleading. In her ac- count, she did not mention these private conversations and secrecy oaths. Her first testimonial reference to imparting the information to the other counselors was: "So, I discussed this with three other counselors when we went out to lunch and we discussed it and were very disgusted and thought that was unfair that my expenses weren't getting paid." 27 Egar said that no one told her this, but that she had at least "got the impression that they were so mad that they could have walked." Egar was also aware, as the April 19 letter to the bureau stated, that Burress had dispensed the Lindheim information "secretly"; she testified that she knew that Massien and Goldstein "were literally sworn to secret [sicl." a8 Once the rumor attained public status at the luncheon, Burress re- marked to the others, as they returned to work, that they should present themselves for employment at some agencies they happened to be pass- ing. No one took the idle suggestion seriously, and there is no evidence that Egar ever became aware of it. 29 While Egar's letter did not mention these other subjects, Burress, with one exception, did not deny that they happened. It is hard to con- ceive that such incidents would not in some measure have colored Egar's estimate of Burress' worth. Furthermore, I would not hold against Egar the failure to compile a complete litany of sins of omission and commis- sion of an employee in a discharge interview or in a letter to a state agency months before an unfair labor practice charge had been filed. Egar testified that the letter to the Ohio bureau contained only "some of the reasons" for the termination of Burress. EGAR EMPLOYMENT, INC. 119 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "the same action would [not] have taken place even in the absence of the protected conduct." Wright Line, supra. However, I need not face that question here. I conclude, on the foregoing analysis, that the dis- charge of Burress did not constitute a violation of the right to engage in concerted activity for protected pur- poses accorded her by Sections 7 and 8(a)(1) of the Act. Accordingly, I shall recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Egar Employment, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The General Counsel has not established by a pre- ponderance of the evidence that Respondent violated the Act as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 0 The complaint is hereby dismissed. 30 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.