Tyler Business Services, Inc.

TYLER BUSINESS SERVICES, INC. 567 Tyler Business Services, Inc. and Brian A. Powers. Case 5-CA-11813 June 15, 1981 DECISION AND ORDER On November 26, 1980, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Charging Party and the General Counsel filed exceptions and briefs in support thereof, and Respondent filed an an- swering brief. ' 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,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent did not violate Section 8(a)(1) and (3) by discharging employee Burton Lane. We dis- agree for reasons that follow. Early in August 1979, 3 Lane contacted Washing- ton Specialties and Paper Products, Local 449, about organizing Respondent's employees. Between August and December, Lane spoke with several employees about unionizing Respondent's employ- ees to improve certain working conditions, includ- ing job security and lack of hospitalization benefits for part-time employees. Lane decided to wait until after Christmas "to make the push" to collect au- thorization cards. Sometime in the fall, Lane dated Kim Smith, the editor of one of Respondent's most important cus- tomers. 4 During a conversation with her,5 Lane, at that point a full-time employee himself, complained to Smith about the termination of a part-time em- ployee named Lynn, stating that Respondent treat- Subsequently, the General Counsel filed a motion to strike certain references in Respondent's answering brief. In view of our disposition of the case, we find it unnecessary to address the issues raised by the Gener- al Counsel's motion. 2 Because of our disposition of this case, we find it unnecessary to pass upon the Administrative Law Judge's discussion of the "small plant doc- trine." We also find it unnecessary to rely on his surmise as to the mean- ing of certain statements attributed to General Manager Harris by em- ployee Lane during a December 1979 conversation, which the Adminis- trative Law Judge found did not occur. The General Counsel and the Charging Party have 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 respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. 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 reversing his findings. 3 All dates hereinafter refer to 1979, unless otherwise indicated. 4Respondent is engaged in the operation of a commercial job printing shop. I The Administrative Law Judge did not resolve whether this conver- sation occurred in late August, as Lane testified, or in November, as Smith recalled. We note that either date was subsequent to Lane's con- tact with the Union. ed part-time employees unfairly by not providing them hospitalization benefits. In the same conversa- tion, Lane also asked Smith whether she had heard that Charles Tyler (Respondent's president) and Kay Brackins (a vice president of the Company) were having an affair and whether she believed the rumor was true. Subsequently, Smith repeated her conversation with Lane to Brackins. In early December, Brack- ins related the substance of Lane's remarks to Tyler. On January 2, 1980, Tyler discharged Lane, stating that he was doing so because Lane had spread rumors about Brackins and himself, and be- cause Lane had said that part-time employees were treated unfairly.6 The Administrative Law Judge found Tyler fired Lane for making the above-mentioned com- ments to a customer of the Company. He found that Lane was venting his frustrations when he made the statements, and that the statements were made with the intent to hurt Tyler and Brackins. He concluded that Lane's statements were not made in an organizing context nor with the intent to help the Company's employees. Accordingly, the Administrative Law Judge held that Respond- ent, by discharging Lane for making the statements to Smith, did not violate the Act. We disagree with the Administrative Law Judge's implicit legal conclusion that Lane's state- ments were neither concerted nor protected activi- ty. Lane's complaint-similar to complaints voiced by Lane and other employees during their discus- sions about the need for a union-that Respondent treated Lynn and other part-time employees unfair- ly by failing to provide them hospitalization bene- fits directly concerns working conditions of em- ployees. We are unable to agree with the Adminis- trative Law Judge's statements that Lane's asserted concern about working conditions of the Compa- ny's employees was not articulated in an organizing context nor intended to further the cause of em- ployees. Clearly, it cannot be said that this con- cern-expressed on behalf of employees other than himself-was of a purely personal character.7 Fur- thermore, an employee's complaint concerning working conditions of employees is protected ac- tivity. And it is elemental that Lane's statement re- garding company benefits for part-time employees I General Manager James Harris, who was present when Tyler dis- charged Lane, testified that Tyler told Lane he was fired "because he was spreading false rumors [about] him and Kay and saying that part time people were treated unfairly " 7 See Datapoint Corporation, 246 NLRB 234 (1979), enforcement denied 642 F.2d 123 (5th Cir 1981); Richboro Community Mental Health Council, Inc., 242 NLRB 1267 (1979); .NL.R.B. v Sencore, Inc., 558 F.2d 433 (8th Cir 1977), enfg 223 NLRB 113 (1976); Carbet Corporation, 191 NLRH 892 (1971), enfd 80 LRRM 3054, 68 L.C 12,845 (6th Cir. 1972) Tyler Business Services, Inc. and Brian A. Powers. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerned working conditions, and was thus pro- tected activity. Accordingly, we find that, as a matter of law, Lane's complaint to Smith about Respondent's treatment of part-time employees was protected concerted activity. We further find, based upon tes- timony of Respondent's agents (see, e.g., fn. 6 supra), that Respondent discharged Lane for engag- ing in this protected concerted activity. Respondent argues, however, that Lane's spread- ing of rumors about an affair between Tyler and Brackins fully justified the decision to discharge him. For the following reasons, we find that Lane's remarks concerning the affair do not constitute conduct so outrageous as to render his otherwise protected activity unprotected. It is well established that an employee's protect- ed activity does not lose the protection of the Act, unless the manner in which the conduct was ex- pressed renders his otherwise protected activity un- protected. That an employee's preception of work- ing conditions may have been incorrect is not suffi- cient reason to remove the protected activity based on those perceptions from the protection of the Act. R. J. Liberto, Inc., 235 NLRB 1450, 1453 (1978). Nor does an employee's otherwise protect- ed communication with a third party forfeit the protection of the Act merely because part of the communication might embarrass the employer, or because the employer may dislike the employee's choice of forum, unless the employee's statement constitutes disparagement or vilification deliberate- ly intended to impugn the employer's operations. Allied Aviation Service Company of New Jersey, Inc., 248 NLRB 229, 230 (1980); Community Hospital of Roanoke Valley, Inc., 220 NLRB 217, 223 (1975), enfd. 538 F.2d 607 (4th Cir. 1976). In determining whether an employee's comments to a third party constitute disparagement of an employer's oper- ations, we have held that the truth of falsity of the communications is not material to the test of their protected character. The Patterson-Sargent Compa- ny, 115 NLRB 1627, 1629 (1956). Applying these standards to the instant case, it is clear that Lane's statements did not exceed the bounds of the protection of the Act. Our examina- tion of the record fails to produce any evidence on which to base a finding that Lane's concern about the working conditions of part-time employees, even if inaccurate, was expressed in such a way as to deprive him of the protection of the Act. Nor was Lane's spreading of the rumor (whether accu- rate or inaccurate) of an affair, as Respondent urges, so despicable as to constitute unprotected disparagement of the Company. Lane's alleged of- fensive remarks did not relate to the Employer's product or operations. Further, Lane's remarks, and the context in which they occurred, did not display the requisite indicia to constitute a deliber- ate intent to impugn the Company.8 No doubt an employer may be embarrassed that a customer be- comes privy to such personal, and perhaps inaccu- rate, information. Nevertheless, we cannot condone stripping an employee of his statutory rights be- cause in the course of his protected conduct he communicates information personally embarrassing to the employer which is unrelated to the employ- er's product. Accordingly, we find that Respondent's defense lacks merit because Lane's spreading of the rumor was not so extreme as to deprive his otherwise pro- tected remarks of the protections of the Act. Thereafter, we conclude that, by discharging em- ployee Lane, Respondent violated Section 8(a)(1) of the Act.9 CONCLUSIONS OF LAW 1. Tyler Business Services, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. By discharging Burton Lane on January 2, 1980, Respondent violated Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 4. Respondent has committed no other unfair labor practices. THE REMEDY Having found that Respondent engaged in cer- tain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirma- tive action which we find necessary to effectuate the policies of the Act. Having found that Respondent's discharge of Burton Lane violated Section 8(a)(1) of the Act, we shall order Respondent to make Lane whole for any loss of earnings and other benefits that he may have suffered by reason of Respondent's discrimi- nation against him, from the date of his discharge 8 In fact, Smith testified that Lane was not being malicious at the time he brought up the rumor, and that she had heard the rumor prior to her conversation with Lane. i Both the General Counsel and the Charging Party have excepted to the Administrative Law Judge's failure to consider Tyler's pretrial affida- vit an admission and to conclude that Lane was discharged for his union activities in violation of Sec. 8(a)(3). Because of our finding that Re- spondent discharged Lane for his protected concerted activity in discuss- ing company personnel problems with Smith, and that the discharge was therefore unlawful, we need not pass upon these exceptions and decide whether the discharge also violated Sec. 8(a)(3). ------- TYLER BUSINESS SERVICES, INC. 569 to the date of his reinstatement,' 0 computed in ac- cordance with the formula stated in F. W Wool- worth Company, 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977); see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Tyler Business Services, Inc., Washington, D.C., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging an employee for engaging in protected concerted activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Make Burton Lane whole for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Washington, D.C., copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 'o The Administrative Law Judge states, and no party disputes, that, subsequent to his termination, Lane accepted an offer of reinstatement. II In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." MEMBER ZIMMERMAN, dissenting: In agreement with the Administrative Law Judge I would find that the alleged discriminatee, Burton Lane, was not unlawfully discharged. Lane while on a date with Kim Smith, a customer of Re- spondent, asked Smith whether she had heard the rumor that Respondent's president, Charles Tyler, was having an affair with Respondent's vice presi- dent, Kay Brackins. During the same conversation Lane expressed the view that a part-time employee had been terminated unfairly and also observed that the discharged employee, like other part-time employees, was denied hospitalization benefits. Re- spondent discharged Lane for making the remarks. I agree with the Administrative Law Judge that these comments are not protected concerted activi- ty. In particular as to Lane's statements concerning part-time employees, which the majority find pro- tected concerted activity because of the ongoing organizing campaign, I note that the campaign un- derway at the time the statements were made was secret and the comments were obviously not made in furtherance of that campaign. They were unpro- tected expressions of personal views not intended to further any employee cause. Since the comments for which Lane was discharged are not protected concerted activity, I find that the discharge was not unlawful. Therefore, I would dismiss the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge an employee for engaging in protected concerted activity. TYLER BUSINESS SERVICES, INC~~~~~~~~~~~~~~. 56 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make Burton Lane whole for any loss of earnings and other benefits he may have suffered by reason of our discrimination agaisnt him, with interest. TYLER BUSINESS SERVICES, INC. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Brian A. Powers, the Charging Party herein, filed a charge on January 4, 1980,1 alleging that Tyler Business Services, Inc., herein called Respondent or the Company, violated Section 8(a)(l) and (3) of the Act by the termination of Burton H. Lane and violated Section 8(a)(1) by various statements. The Regional Director issued a complaint on February 13, 1980, alleging that Respondent, through Vice Presi- dent James Harris and Print Shop Supervisor James Harvey, violated Section 8(a)(1) of the Act by threaten- ing to lay off employees if they chose union representa- tion and telling employees they would not be free to talk to other employees if they chose union representation. The complaint also alleges that President Charles Tyler told an employee that he was to be discharged for en- gaging in union activities. The complaint also alleges that Respondent violated Section 8(a)(3) and (I) of the Act by discharging Lane on January 2, 1980, and later of- fered him reinstatement by its February 11 letter which he accepted. Respondent's timely answer admitted the commerce and service allegations, the status of Local 449, Washing- ton Printing Specialties and Paper Products Union, an af- filiate of the International Printing and Graphic Commu- nications Union, AFL-CIO, herein referred to as the Union, as a labor organization but denied that it had vio- lated the Act in any way. Respondent admitted that Tyler, Harris, and Harvey, as well as art director Kay Brackins, were supervisors within the meaning of the Act. The principal question here is whether Respondent terminated Lane, at least in part, for his activities on behalf of a union or whether the termination was for un- related actions. In considering all the facts, I have decid- ed that Respondent's termination of Lane did not violate the Act and further that Respondent did not violate Sec- tion 8(a)(1) of the Act under the other complaint allega- tions. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in Washington, D.C., on July 2 and 3, 1980. All parties submitted briefs which have been considered. I Unless specifically noted otherwise, all dates herein occurred in late 1979 and early 1980. On the entire record in this case, including the exhibits and testimony, and noting the contradictions in testimo- ny and on my evaluation of the reliability of the wit- nesses based on the evidence and their demeanor, I make the following: FINDINGS OF FACT I. COMMERCE FINDINGS AND UNION STATUS Respondent is a District of Columbia corporation en- gaged in the operation of a commercial job printing shop in the District of Columbia. During the preceding year, it had revenues in excess of $500,000 and purchased and received, directly in interstate commerce from points lo- cated outside the District of Columbia, materials and supplies valued in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Undisputed Facts At one point Respondent had two locations, the major one being on Connecticut Avenue, and a second location in Maryland. Sometime after the termination of Lane, the second location was closed and Respondent's operation continued at the Connecticut Avenue location. There are approximately 50 employees at that location who work different shifts and come to work at various times. Harvey and Harris, for example, usually come to work about 11 or 11:30 a.m. while Tyler is usually there around 9 to 9:30 a.m. Most of Respondent's employees are full-time employees but it has some part-time em- ployees, some of whom have other main jobs and others who wish to restrict the number of hours that they work. Lane was hired by Tyler in January 1979 and started by learning how to be a stripper, although he had some background in photography. He was hired as a part-time employee since he stated he had a photography business on the side. Harvey and Harris agreed that around May 1979 Lane asked them how to become a full-time employee and was told that all he had to do was ask. They said they con- sidered his question as a request and that he was made a full-time employee within a week. Lane at first denied that he had ever requested to be transferred to full-time status, saying that the Company had offered it to him. After several such denials, he ad- mitted that he did question Harvey and Harris and in a sense requested transfer to a permanent position. Lane stated that in August he contacted a union agent to find out how to start organizing a union at the Com- pany. After getting information, he contacted two other employees and contacted another two employees each month, asking their sentiments concerning a union and trying to persuade them that they should have a union at TYLER BUSINESS SERVICES, INC. 571 Respondent. Lane admits he made his contacts very se- cretly and did not think he drew any attention to himself in that regard. There is no testimony that Lane ever told anyone from management that he was attempting to or- ganize a union or that any employee ever told any of Re- spondent's agents that Lane was attempting to organize a union until December 21. B. The August Conversation of Harvey and Harris With Lane Lane testified that around the end of August near the close of work, either Harvey or Harris brought up the subject of union, with Harvey saying that a union would be a bad thing because under union rules they would have to get rid of a printer at the Company and there would be no crossover work. Lane said he replied that he did not think a union would require something like that. Harvey testified that, sometime after work was com- pleted on an evening in August, they were sitting around his desk having a couple of beers when he got into a conversation with Harvey and Lane about the union at the Washington Post and the strike there and the damage to some presses. According to Harvey, nothing was said having to do with Respondent. Harris testified that he had a conversation with Harvey and Lane sometime in August in which they were talking about what was done to the presses at the Washington Post during the strike. Both he and Harvey denied making any threat to lay off employees if they chose a union, or stating that employees would not be free to talk to other employees if they chose union repre- sentation. It is possible that there could have been a conversation about what union work rules provide as they understood them, but at that time there was nothing to indicate that there was any union organization being attempted at Re- spondent and nothing to draw any attention to Lane. I credit Harvey and Harris as to the parameters of the conversation and do not find that there was any threat made as to what Respondent would do if a union came in there. Therefore, I will dismiss paragraphs 5(a) and (b) of the complaint. C. Lane's Statements Respondent's biggest customer for typesetting in 1979 was the American Helicopter Association which pro- duced a magazine called Vertiflite. Its editor, Kim Smith, usually worked closely with Kay Brackins in setting up the magazine. During the fall of 1979, Lane dated Kim Smith. Lane stated that in August, and Kim Smith stated that in mid to late November, while on a date, Lane asked whether Smith had heard the rumor that Tyler was having an affair with Kay Brackins and whether she thought the rumor was true. Smith said she was offended by this question since Kay Brackins was a friend and she felt it was a rumor with no foundation. From other evidence, it is apparent that during this conversation Lane brought up the termination of an employee named Lynn, stating that he felt it had been unfair and that she had been a part-timer who had no hospitalization. Sometime shortly thereafter, while working with Brackins in pasting up the magazine, Kim Smith men- tioned this conversation to Brackins. Brackins was taken aback by the statements but did not say much then since they were in the middle of work surrounded by other people. Smith saw Brackins later that evening in a social setting and said that Brackins discussed the matter more, was angry, hurt, and cried about it. Brackins testified that she was extremely upset about the matter but decided to cool down about it, feeling that nothing was to be gained by telling Tyler about it then. Some 2 to 3 weeks later, while having a discussion with Tyler as to whether men or women gossiped more, she told him men were the worst gossips and illustrated her point by stating that Lane had gossiped to others that she and Tyler were having an an affair. Tyler at first was amused by the statement and considered it funny but when she informed him that Lane had made this charge to a customer of the Company, Tyler became upset and said that no one should be taking such rumors outside the Company to customers. Brackins told Tyler that Lane was saying Tyler treated part-time employees unfairly by not giving them hospitalization or other benefits. Tyler angrily reacted to this statement, saying it was untrue since he had given Lynn hospitalization and felt that he treated part-timers well and was not taking advantage of them. This conversation, which took place somewhere around December 7, ended with Tyler tell- ing Brackins that he would get rid of Lane. Respondent grants bonuses to most of its employees, usually on an annual basis in the first part of December when the accountant has given Tyler a good indication of how the business has gone for that year. Bonuses, which ranged from $50 to several thousand, were grant- ed to practically all employees, including Lane, and paid during the pay period of December 12. Lane got a bonus of $187.50. When questioned concerning this, Tyler said that Lane had done his work and had earned his bonus and therefore it was paid to him. Respondent conducts supervisory meetings concerning its employees and its expectations of them, including de- cisions on whether to retain them, in December. Accord- ing to Respondent, there are no detailed records kept of employees' progress of work habits, etc., because it is a small company and this is handled orally and continually by Tyler and his supervisors. Tyler holds a meeting with Brackins and others to consider the upstairs employees, how they are doing, and whether any changes need to be made or whether they have any discipline problems, and holds a second meeting with Harvey and Harris to consider the downstairs employees. Tyler, Harvey, and Harris testified they held such a meeting on Friday, December 14, to discuss some five or six employees. It is evident from their testimony that they did discuss the progress or lack of it of five or six employees, deciding to keep two or three of them and give them another chance and to terminate several others. They decided to terminate the receptionist and one person in the bindery and were considering terminat- T Y L E R. B U I N S S E V.E S I N C . . 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing another employee who, about that time, said he had decided to quit and go back to school. While considering these employees, Tyler told Harvey and Harris that he wanted to terminate Lane. Harvey indicated he was a bit surprised and stated that Lane was a good, dependable employee and had done his work well. Tyler said he wanted to get rid of Lane because he had a big mouth and was telling lies and had been spreading rumors to one of Respondent's customers that Tyler and Brackins were having an affair and that Tyler was mistreating part-time employees by not giving them proper benefits. Harvey and Harris agreed that they could do without Lane. They also testified that the employees to be termi- nated would be terminated following the Christmas holi- days. When asked about this decision, Tyler stated it was his policy never to fire anybody right before Christmas. There is no question but what the three employees, the receptionist, bindery employee, and Lane, were let go on January 2. Lane testified that sometime around early to mid-De- cember, Harris, with no preliminaries, told him that the Company did not want a union and if they had one, Lane could not go and talk to another employee or do other than his assigned work. Lane said he asked Harris what would happen if somebody was working to bring a union into the plant. Harris supposedly replied that Re- spondent did not hire union people. Harris denied making any such statements, and Re- spondent offered testimony that it had several known union employees. Harris stated that the first knowledge he had about the union and Lane was from employee Vatch's conversation with him on December 21. I credit Harris' denial that the conversation occurred. Although Harris was somewhat nervous when he testi- fied, his testimony appeared to be straightforward. Even if this conversation did occur as Lane testified, it appears to be an explanation of union work rules, not of some- thing Respondent would do. There is no question that Respondent did hire a union member stenotypist who openly showed her union preference and talked about it to management. I do not credit that Harris would have made a statement that Respondent would not hire union people to an employee who would know it to be false. This complaint allegation is dismissed. On December 20, Lane talked to fellow employee Vatch concerning the Union. This was the day following the Christmas party, and Lane told Vatch he wanted to speak to him in confidence, saying he was trying to orga- nize a union and asked Vatch to join. Vatch said he would not join and that he thought the benefits of the Company were good and sufficient. Lane said that some of the part-time people wanted to be full-time. Vatch said that some of the part-time people wanted to stay part-time and gave him several examples. Vatch told Lane that he should not spread stories about things of which he had no knowledge, such as hospitalization and job security for part-time employees. On the following day, Vatch told Harris about the conversation and stated that Harris appeared surprised. Harris agreed that after his conversation with Vatch he asked several supervisors if they had heard anything about a union organization and was told they had not. Tyler had gone home to prepare to leave for a Florida vacation and was in contact with Harris before leaving. Harris told Tyler what Vatch had reported and asked if there was anything he should do. Tyler replied, "So What? We're going to get rid of him [Lane] anyway," and that ended the conversation on that point. Tyler returned to Washington on either Monday, De- cember 31, or shortly thereafter. According to Lane, on the morning of January 2, Tyler called him to Harris' desk and asked what it was he had heard about Lane stirring up trouble. Lane said there was some discontent among the employees. Tyler asked what that was, and Lane answered it concerned job security and people being fired without notice. According to Lane, Tyler said, "Well, if there were such problems, why didn't you come to me about them?" Lane replied he was trying to organize a union, and Tyler said, "That's why I'm firing you, because you don't have any sense." Lane replied it was illegal to fire someone for organizing a union. Tyler replied that he did not mind a court fight, that he had had them before, had friends with the unions, and if he had wanted a union he could have had one. Lane stated that as he was about to leave, Tyler said he did not ap- preciate Lane spreading rumors about James Harris or about Kay Brackins and himself, and asked if he had done it and if Lane had talked to any customers about it, and he replied that he did not think so. Tyler told him to think about it for a minute, and Lane said he might have and Tyler agreed. Lane said that on his way out he told his foreman, Harvey, that he had just been fired for union organizing. A few minutes later, Lane said he had a further conver- sation with Tyler in which he asked Tyler exactly why he was fired. He said Tyler replied, "Because you're always bothering people about this union stuff and be- cause you're spreading rumors about Kay and me, and if you want to have a court fight about it I can produce a witness to show that you were spreading those rumors." Harris testified that on January 2 Tyler called Lane over and said he was letting him go. Lane asked if it was because of his union activities and Tyler said no, that it was because he had spread rumors about Kay Brackins and himself and also he was talking about the part-time employees. Lane insisted he was being fired for his union activities, and Tyler denied it. Tyler corroborated Harris' version of the discharge and stated that he asked Lane why he had never said anything about Lynn and her situation to him so that he could explain it. Harvey stated that Lane spoke to him following his discharge and said he had been fired for union activities. Harvey said he was surprised at such a statement because he knew Lane was to be terminated but really knew nothing about Lane's union activities. Harvey also said he had never heard any complaints from Lane about the benefits of part-time employees. Analysis and Conclusions The General Counsel and the Union state that this is a small plant and that the Board's "small plant doctrine" should be in effect here, so that knowledge of Lane's YLER BUSINESS SERVICES, INC. 573 union organizational activities could be imputed to Re- spondent. Apparently they also believe that the August conversation of Harris, Harvey, and Lane indicates that Respondent suspected some union activity by Lane and that this bears on knowledge. However, with what I have found above, the August conversation affords no basis for attributing knowledge of Lane's union activities to Respondent. As the facts stand, there is no indication of whether Lane had contacted the union prior to this conversation. It is clear that Lane kept his activities secret, and there is no way of showing that Respondent had any direct knowledge of Lane's union activities until December 21. The small plant theory is applicable in a number of situa- tions, but in this situation, where the plant is located in a large metropolitan area such as Washington where the employees would be scattered and the union activities would not be in a confined area, I would not find this theory to be applicable. I find that the December 14 meeting of Tyler, Harvey, and Harris was held and that decisions were made at that time concerning the retention of some employees and the termination of others, including Lane. It may seem odd that this December 14 meeting was not included in Tyler's affidavit, but it is also clear that part of his affida- vit was confused on some items and that his oral testimo- ny concerning this matter is corroborated fully and seems more in keeping with the events, including the ter- mination of the others. It is only supposition on the part of the General Counsel and the Charging Party that there was no such meeting. The General Counsel indicates that Lane's statements about part-timers should be considered in the context of the organizing effort by Lane, but Lane was not engaged in an organizing effort at the time that he was making that and the other statements to the customer, Kay Smith. Asked why he had made the statement about Brackins and Tyler to Smith, Lane said that he was giving vent to his frustrations, which, in that context, would indicate he was acting somewhat maliciously. When challenged concerning which part-timers wanted to become full-time employees, Lane was unable to cite any particulars and more or less agreed that he was making general charges based on his view of his own history at Respondent. Essentially, there is no evidence that the Company would not make full-time employees out of any part-time employees who so wished. Secondly, there is no evi- dence concerning what benefits, if any, were not given to part-time employees. It is clear from the context that Lane's statements to a company customer who happened to be a friend of Brackins, concerning part-time employees and the al- leged affair, were made with intent to hurt Tyler and Brackins. There is nothing in these statements to Kay Smith that would show they were made with an intent to help the Company's employees, or were made in an organizing context. I conclude and find that the decision to discharge Lane was made on or before December 14 and on that date announced to Harvey and Harris and that Respond- ent had no knowledge of any organizing activity en- gaged in by Lane prior to that time. While it is true that Respondent could have changed its mind about terminat- ing Lane, there is nothing to show such a predisposition and, in fact, the testimony evoked by the General Coun- sel from Tyler shows that Tyler was not disposed to change his mind. When informed of the Lane-Vatch con- versation, Tyler's statement was "So what? We're going to get rid of him anyway." The decision had been made, and finding that Lane had engaged in union activities did not change it or become a part of the reason to terminate him. As Tyler said, he had a choice between Brackins, a longtime employee and supervisor whom Tyler consid- ered indispensable, and an employee who had been with the Company less than a year and, as far as he was con- cerned, there was no question as to whom he wished to retain. Accordingly, I conclude and find that there was no violation of Section 8(a)(1) and (3) in Respondent's termination of Lane and accordingly will dismiss the complaint. I conclude and find that the complaint allegations of 8(a)(l) and (3) violations in this matter have not been proven and therefore dismiss the complaint [Recommended Order for dismissal omitted from pub- lication.] TYLER BUSINESS SERVICES, INC. 573