Tera Advanced Services Corporation

TERA ADVANCED SERVICES CORPORATION 949 Tera Advanced Services Corporation and Daniel J. The Administrative Law Judge found that the Malloy. Case 5-CA-11973 "paycheck incident" also occurred on February 1, January7.1980 when employee Linda Robb, an assistant to Ad- January 7, 1980 ministrative Manager Dee Denton, handed Malloy DECISION AND ORDER his paycheck and W-2 form. Upset that the form did not contain his correct address, Malloy ex- BY MEMBERS FANNING, JENKINS, AND claimed, "Those dumb fuckers up front, they never ZIMMERMAN do anything right. I ought to go up and kick Dee's ass." Although Robb immediately informed Denton On March 31, 1981, Administrative Law Judgeobb immediately informed Denton Arthur Leff issued te attaed ei of the incident, it is undisputed that Project Man- ager James Long, Respondent's top management proceeding. Thereafter, counsel for the General er Jaes Lon, eondent tp manaeet Counsel filed exceptions and a supporting brief,i i u Fbur4 aCounsel filed exception and a supporting bef.On Monday, February 4, Respondent held a and Respondent filed an answering brief. and Respondent . filedna gr ie."brown bag" lunch at which Long addressed ap- Pursuant to the provisions of Section 3(b) of the proximately 25 employees concerning Respondent's National Labor Relations Act, as amended, the Na- oerations. During a question-and-answer session operations. During a question-and-answer session tional Labor Relations Board has delegated its au- following the address, Malloy asked what manage- thority in this proceeding to a three-member panel. ment's attitude would be toward the formation of a The Board has considered the record and the at- company union. Long was visibly upset by the tached Decision in light of the exceptions and question and indicated that he did not think a union briefs and has decided to affirm the rulings, find- was necessary. Malloy then stated that a union ings, and conclusions of the Administrative Law would enable employees to bargain for wage in- Judge only to the extent consistent herewith. creases, and, after another employee noted the ad- We agree with the Administrative Law Judge vantages of unionization, Malloy related his under- that the General Counsel has made a prima facie standing of how collective bargaining operated at showing sufficient to support the inference that another location. protected activity was a motivating factor in Re- Immediately after the brown bag lunch, Long spondent's decision to discharge employee Daniel met with Denton and Seville and said, "[w]ho the Malloy. Contrary to the Administrative Law hell does he think he is, asking to form a union at Judge, however, we do not find that Respondent TERA." With Denton urging that Malloy be fired, has met its burden of establishing that it would Long then stated, "[g]ive me his file, his personnel have taken the same action even in the absence of file, give me Dan Malloy's personnel file. I have Malloy's protected activity. We find, in agreement had it. I have had it." The Administrative Law with the General Counsel, that Malloy's protected Judge found that at some point during this conver- activity was the sole motivating factor in the deci- sation Denton informed Long about the paycheck sion, and that Respondent's other asserted reasons incident. The Administrative Law Judge also found for the discharge were pretexts. that Long decided to discharge Malloy sometime The record discloses that during his tenure of during the afternoon of February 4. On February employment Malloy unquestionably had an incon- 5, Long informed Data Manager Barbara Murray sistent performance record, marked by several that he was discharging Malloy, and he instructed warnings concerning below-average attitude and her to prepare a memorandum on Malloy's employ- productivity. In January 1980,1 Supervisor George ment history. Long also instructed Supervisor Petrov placed Malloy on probation after finding Petrov to submit his recommendation, but in a him to be the least accurate employee of his five- memorandum Petrov observed that Malloy "has a member coding team. Malloy was given a final point in maintaining that dismissal at this time is warning after an evaluation on January 25 rated his not justified," since his current work was sufficient- performance below average. On Friday, February ly accurate and since he had not recently been a 1, however, Petrov found Malloy's most recent disruptive influence. Nonetheless, Long discharged work acceptable, and concluded that a previous Malloy at the close of business on February 5. warning about socializing on the job had made an In finding that Respondent met its burden of impression on him. Operations Manager Michael demonstrating that it would have discharged Seville approved Petrov's recommendation that Malloy even in the absence of his protected activi- Malloy's probationary period be extended and that ty, the Administrative Law Judge relied, to a large no further action be taken against him at that time. extent, on Malloy's behavior during the paycheck incident. Contrary to the Administrative Law 'Unless otherwise specified, all dates herein refer to 1980. Judge, we find that Respondent has failed to dem- 259 NLRB No. 125 TERA ADVANCED SERVICES CORPORATION 949 Tera Advanced Services Corporation and Daniel J. The Administrative Law Judge found that the Malloy. Case 5-CA-11973 "paycheck incident" also occurred on February 1, January 7- 1980 when employee Linda Robb, an assistant to Ad- January /, iy80 ministrative Manager Dee Denton, handed Malloy DECISION AND ORDER h is paycheck and W-2 form. Upset that the form did not contain his correct address, Malloy ex- BY MEMBERS FANNING, JENKINS, AND claimed, "Those dumb fuckers up front, they never ZIMMERMAN do anything right. I ought to go up and kick Dee's On March 31, 1981, Administrative Law Judge a." thoug Robb immediately informed Denton Arthur Leff issued the attached Decision in this of t he inc ident , it is undisputed that Project Man- j- *n- e^ i e ^ /-. .^Sr James Long, Respondent s top management proceeding. Thereafter, counsel for the General a J L R d p manae4. Counsel filed exceptions and a supporting brief, o iai uni February 4 and Respondent filed an answering brief.°O M o n day , F ebruary 4, Responden h eld a Pursuant t the provisions rof Section of the "brown bag" lunch at which Long addressed ap- Pursuant to the provisions of Section 3(b) of the proximately 25 employees concerning Respondent's National Labor Relations Act, as amended, the Na- prately 25 amquestion-and-ngswespsession operations. During a question-and-answer session tional Labor Relations Board has delegated its au- following the address, Malloy asked what manage- thority in this proceeding to a three-member panel. ment's attitude would be toward the formation of a The Board has considered the record and the at- company union. Long was visibly upset by the tached Decision in light of the exceptions and question and indicated that he did not think a union briefs and has decided to affirm the rulings, find- was necessary. Malloy then stated that a union ings, and conclusions of the Administrative Law would enable employees to bargain for wage in- Judge only to the extent consistent herewith,.creases, and, after another employee noted the ad- We agree with the Administrative Law Judge vantages of unionization, Malloy related his under- that the General Counsel has made a prima facie standing of how collective bargaining operated at showing sufficient to support the inference that another location. protected activity was a motivating factor in Re- Immediately after the brown bag lunch, Long spondent's decision to discharge employee Daniel met with Denton and Seville and said, "[w]ho the Malloy. Contrary to the Administrative Law hell does he think he is, asking to form a union at Judge, however, we do not find that Respondent TERA." With Denton urging that Malloy be fired, has met its burden of establishing that it would Long then stated, "[g]ive me his file, his personnel have taken the same action even in the absence of file, give me Dan Malloy's personnel file. I have Malloy's protected activity. We find, in agreement had it. I have had it." The Administrative Law with the General Counsel, that Malloy's protected Judge found that at some point during this conver- activity was the sole motivating factor in the deci- sation Denton informed Long about the paycheck sion, and that Respondent's other asserted reasons incident. The Administrative Law Judge also found for the discharge were pretexts,.that Long decided to discharge Malloy sometime The record discloses that during his tenure of during the afternoon of February 4. On February employment Malloy unquestionably had an incon- 5, Long informed Data Manager Barbara Murray sistent performance record, marked by several that he was discharging Malloy, and he instructed warnings concerning below-average attitude and her to prepare a memorandum on Malloy's employ- productivity. In January 1980, 1 Supervisor George ment history. Long also instructed Supervisor Petrov placed Malloy on probation after finding Petrov to submit his recommendation, but in a him to be the least accurate employee of his five- memorandum Petrov observed that Malloy "has a member coding team. Malloy was given a final point in maintaining that dismissal at this time is warning after an evaluation on January 25 rated his "ot justified," since his current work was sufficient- performance below average. On Friday, February ly accurate and since he had not recently been a 1, however, Petrov found Malloy's most recent disruptive influence. Nonetheless, Long discharged work acceptable, and concluded that a previous Malloy at the close of business on February 5. warning about socializing on the job had made an In finding that Respondent met its burden of impression on him. Operations Manager Michael demonstrating that it would have discharged Seville approved Petrov's recommendation that Malloy even in the absence of his protected activi- Malloy's probationary period be extended and that ty, the Administrative Law Judge relied, to a large no further action be taken against him at that time. extent, on Malloy's behavior during the paycheck incident. Contrary to the Administrative Law 'Unless otherwise specified, all dates herein refer to 1980. Judge, we find that Respondent has failed to dem- 259 NLRB No. 125 TERA ADVANCED SERVICES CORPORATION 949 Tera Advanced Services Corporation and Daniel J. The Administrative Law Judge found that the Malloy. Case 5-CA-11973 "paycheck incident" also occurred on February 1, January 7- 1980 when employee Linda Robb, an assistant to Ad- January /, iy80 ministrative Manager Dee Denton, handed Malloy DECISION AND ORDER h is paycheck and W-2 form. Upset that the form did not contain his correct address, Malloy ex- BY MEMBERS FANNING, JENKINS, AND claimed, "Those dumb fuckers up front, they never ZIMMERMAN do anything right. I ought to go up and kick Dee's On March 31, 1981, Administrative Law Judge a." thoug Robb immediately informed Denton Arthur Leff issued the attached Decision in this of t he inc ident , it is undisputed that Project Man- j- *n- e^ i e ^ /-. .^Sr James Long, Respondent s top management proceeding. Thereafter, counsel for the General a J L R d p manae4. Counsel filed exceptions and a supporting brief, o iai uni February 4 and Respondent filed an answering brief.°O M o n day , F ebruary 4, Responden h eld a Pursuant t the provisions rof Section of the "brown bag" lunch at which Long addressed ap- Pursuant to the provisions of Section 3(b) of the proximately 25 employees concerning Respondent's National Labor Relations Act, as amended, the Na- oprately 25 amquestion-and-ngswespsession operations. During a question-and-answer session tional Labor Relations Board has delegated its au- following the address, Malloy asked what manage- thority in this proceeding to a three-member panel. ment's attitude would be toward the formation of a The Board has considered the record and the at- company union. Long was visibly upset by the tached Decision in light of the exceptions and question and indicated that he did not think a union briefs and has decided to affirm the rulings, find- was necessary. Malloy then stated that a union ings, and conclusions of the Administrative Law would enable employees to bargain for wage in- Judge only to the extent consistent herewith,.creases, and, after another employee noted the ad- We agree with the Administrative Law Judge vantages of unionization, Malloy related his under- that the General Counsel has made a prima facie standing of how collective bargaining operated at showing sufficient to support the inference that another location. protected activity was a motivating factor in Re- Immediately after the brown bag lunch, Long spondent's decision to discharge employee Daniel met with Denton and Seville and said, "[w]ho the Malloy. Contrary to the Administrative Law hell does he think he is, asking to form a union at Judge, however, we do not find that Respondent TERA." With Denton urging that Malloy be fired, has met its burden of establishing that it would Long then stated, "[g]ive me his file, his personnel have taken the same action even in the absence of file, give me Dan Malloy's personnel file. I have Malloy's protected activity. We find, in agreement had it. I have had it." The Administrative Law with the General Counsel, that Malloy's protected Judge found that at some point during this conver- activity was the sole motivating factor in the deci- sation Denton informed Long about the paycheck sion, and that Respondent's other asserted reasons incident. The Administrative Law Judge also found for the discharge were pretexts,.that Long decided to discharge Malloy sometime The record discloses that during his tenure of during the afternoon of February 4. On February employment Malloy unquestionably had an incon- 5, Long informed Data Manager Barbara Murray sistent performance record, marked by several that he was discharging Malloy, and he instructed warnings concerning below-average attitude and her to prepare a memorandum on Malloy's employ- productivity. In January 1980, 1 Supervisor George ment history. Long also instructed Supervisor Petrov placed Malloy on probation after finding Petrov to submit his recommendation, but in a him to be the least accurate employee of his five- memorandum Petrov observed that Malloy "has a member coding team. Malloy was given a final point in maintaining that dismissal at this time is warning after an evaluation on January 25 rated his "ot justified," since his current work was sufficient- performance below average. On Friday, February ly accurate and since he had not recently been a 1, however, Petrov found Malloy's most recent disruptive influence. Nonetheless, Long discharged work acceptable, and concluded that a previous Malloy at the close of business on February 5. warning about socializing on the job had made an In finding that Respondent met its burden of impression on him. Operations Manager Michael demonstrating that it would have discharged Seville approved Petrov's recommendation that Malloy even in the absence of his protected activi- Malloy's probationary period be extended and that ty, the Administrative Law Judge relied, to a large no further action be taken against him at that time. extent, on Malloy's behavior during the paycheck incident. Contrary to the Administrative Law 'Unless otherwise specified, all dates herein refer to 1980. Judge, we find that Respondent has failed to dem- 259 NLRB No. 125 TERA ADVANCED SERVICES CORPORATION 949 Tera Advanced Services Corporation and Daniel J. The Administrative Law Judge found that the Malloy. Case 5-CA-11973 "paycheck incident" also occurred on February 1, January 7- 1980 when employee Linda Robb, an assistant to Ad- January /, iy80 ministrative Manager Dee Denton, handed Malloy DECISION AND ORDER h is paycheck and W-2 form. Upset that the form did not contain his correct address, Malloy ex- BY MEMBERS FANNING, JENKINS, AND claimed, "Those dumb fuckers up front, they never ZIMMERMAN do anything right. I ought to go up and kick Dee's On March 31, 1981, Administrative Law Judge a." thoug Robb immediately informed Denton Arthur Leff issued the attached Decision in this of t he inc ident , it is undisputed that Project Man- j- *n- e^ i e ^ /-. .^Sr James Long, Respondent s top management proceeding. Thereafter, counsel for the General a J L R d p manae4. Counsel filed exceptions and a supporting brief, o iai uni February 4 and Respondent filed an answering brief.°O M o n day , F ebruary 4, Responden h eld a Pursuant t the provisions rof Section of the "brown bag" lunch at which Long addressed ap- Pursuant to the provisions of Section 3(b) of the proximately 25 employees concerning Respondent's National Labor Relations Act, as amended, the Na- oprately 25 amquestion-and-ngswespsession operations. During a question-and-answer session tional Labor Relations Board has delegated its au- following the address, Malloy asked what manage- thority in this proceeding to a three-member panel. ment's attitude would be toward the formation of a The Board has considered the record and the at- company union. Long was visibly upset by the tached Decision in light of the exceptions and question and indicated that he did not think a union briefs and has decided to affirm the rulings, find- was necessary. Malloy then stated that a union ings, and conclusions of the Administrative Law would enable employees to bargain for wage in- Judge only to the extent consistent herewith,.creases, and, after another employee noted the ad- We agree with the Administrative Law Judge vantages of unionization, Malloy related his under- that the General Counsel has made a prima facie standing of how collective bargaining operated at showing sufficient to support the inference that another location. protected activity was a motivating factor in Re- Immediately after the brown bag lunch, Long spondent's decision to discharge employee Daniel met with Denton and Seville and said, "[w]ho the Malloy. Contrary to the Administrative Law hell does he think he is, asking to form a union at Judge, however, we do not find that Respondent TERA." With Denton urging that Malloy be fired, has met its burden of establishing that it would Long then stated, "[g]ive me his file, his personnel have taken the same action even in the absence of file, give me Dan Malloy's personnel file. I have Malloy's protected activity. We find, in agreement had it. I have had it." The Administrative Law with the General Counsel, that Malloy's protected Judge found that at some point during this conver- activity was the sole motivating factor in the deci- sation Denton informed Long about the paycheck sion, and that Respondent's other asserted reasons incident. The Administrative Law Judge also found for the discharge were pretexts,.that Long decided to discharge Malloy sometime The record discloses that during his tenure of during the afternoon of February 4. On February employment Malloy unquestionably had an incon- 5, Long informed Data Manager Barbara Murray sistent performance record, marked by several that he was discharging Malloy, and he instructed warnings concerning below-average attitude and her to prepare a memorandum on Malloy's employ- productivity. In January 1980, 1 Supervisor George ment history. Long also instructed Supervisor Petrov placed Malloy on probation after finding Petrov to submit his recommendation, but in a him to be the least accurate employee of his five- memorandum Petrov observed that Malloy "has a member coding team. Malloy was given a final point in maintaining that dismissal at this time is warning after an evaluation on January 25 rated his "ot justified," since his current work was sufficient- performance below average. On Friday, February ly accurate and since he had not recently been a 1, however, Petrov found Malloy's most recent disruptive influence. Nonetheless, Long discharged work acceptable, and concluded that a previous Malloy at the close of business on February 5. warning about socializing on the job had made an In finding that Respondent met its burden of impression on him. Operations Manager Michael demonstrating that it would have discharged Seville approved Petrov's recommendation that Malloy even in the absence of his protected activi- Malloy's probationary period be extended and that ty, th e Administrative Law Judge relied, to a large no further action be taken against him at that time. extent, on Malloy's behavior during the paycheck incident. Contrary to the Administrative Law 'Unless otherwise specified, all dates herein refer to 1980. Judge, we find that Respondent has failed to dem- 259 NLRB No. 125 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onstrate that it relied on this incident as a basis for ployee." 3 For the reasons below, we also find that the decision. Long did not consider these factors at the time he We note initially that the Administrative Law made his decision. Judge did not pinpoint the precise time at which While it is undisputed that Malloy had an incon- the discharge decision was made, finding only that sistent performance record, it is also established Long arrived at his decision sometime "on the that on Friday, February 1, Respondent had decid- afternoon of February 4." We find merit to the ed to extend Malloy's probationary period after his General Counsel's contention that Long decided to supervisor, Petrov, had judged his most recent discharge Malloy at the precise moment that he de- work acceptable and had noted that a previous manded Malloy's personnel file and declared that warning about socializing had made an impression he had "had it," during the conversation with on him.4 In these circumstances, we cannot find Denton and Seville following the brown bag lunch. that Malloy's performance, which had been found Our finding in this regard is grounded in the cir- sufficiently acceptable to warrant an indefinite ex- cumstances in which the remarks were made. Thus, tension of his probationary period on February 1, Malloy's comments had caused Long to be visibly suddenly formed a part of the basis for the decision upset both during and after the brown bag lunch. to discharge him only 3 days later. The recent ex- Long's remarks were made immediately after tension of the probationary period also precludes a Malloy had engaged in protected conduct, and the finding that Respondent relied on Malloy's continu- decisive manner in which they were uttered indi- ing probationary status in making its decision. cated that a final disposition of the issue was forth- Moreover, the record discloses no evidence that coming. In these circumstances, Long's demand for Long considered Malloy's performance problems the file and his declaration that he had "had it" or probationary status at the time he stated that he cannot be interpreted as manifesting anything other had "had it" during his conversation with Seville than a firm resolve to discharge Malloy. and Denton. On the contrary, the evidence indi- The Administrative Law Judge also found that cates only that Malloy's comments about unioniza- Denton informed Long of the paycheck incident tion were discussed at the moment that Long made for the first time during the course of this same his decision conversation, but again he did not specify the pre- Consideration must also be given to the fact that cise time at which Denton did so. He found only much of the evidence used to justify the discharge that Long "may" have been informed prior to de- was not gathered until the day after the decision manding Malloy's personnel file and declaring that was made. As the Administrative Law Judge he had "had it." After a careful review of the found, Long informed Murray of his decision on record, we find no evidence that Long had been instructed her to the morning of February 5 and instructed her to apprised of the paycheck incident prior to that memorandum setting forth everything prepare a memorandum setting forth everything moment, which, as we have found, was the she knew about Malloy. It was this memorandum moment at which the discharge decision was made. Mallo's erformance record as which labeled Malloy's performance record as Therefore, since Respondent has not established Th e s e "generally unacceptable," noted his "sloppy hand- that Long was aware of the paycheck incident at " y acceptable noted hs soppy hand- that time it has not demonstrated that the incident writing," asserted that he had abused compensatory that time, it has not demonstrated that the incident . . . was a motivating factor in the decision to dis- time and other privileges, and observed that he had charge Malloy. 2 engaged in excessive socializing. We do not suggest ~charge Malloy.'~ ~that Long was completely unaware of Malloy's The Administrative Law Judge also found that, ong a unaae o performance and other miscellaneous problems in deciding to discharge Malloy, Respondent relied erfrmae a er mcelane e on Malloys "probationary status, failure to sustain until February 5. However, the fact that Long or- an acceptable level of pnary sat, derrace ad the preparation of the memorandum after the an acceptable level of performance, and other decision had been made, when coupled with the problems Respondent had had with him as an em- d e c s o n h a d b e e n m ad e w h e n p w t h t h e problems Respondent had haabsence of evidence that these problems were con- 2 The Administrative Law Judge credited Long's testimony that he sidered at the time of the decision, indicates that would have discharged Malloy upon learning of the paycheck incident, Respondent offered the problems listed in the even in the absence of the protected activity. We find that the Adminis- memorandum as mere afterthoughts. trative Law Judge's credibility resolution in this regard is of no conse- quence, since it has not been established that Long knew of the paycheck incident at the time he decided to discharge Malloy. In discerning an em- ' In using the phrase "other problems," the Administrative Law Judge ployer's motive for a disciplinary action, we analyze only those factors was apparently referring to the items listed in Supervisor Murray's memo which the employer considered at the time the action was taken. Wheth- of February 5, discussed infra. er an employee would have been discharged for conduct occurring after 'In this connection we also note Long's testimony that in the absence the disciplinary decision, or for conduct of which the employer was not of the paycheck incident, which has not been shown to be a motivating apprised until after the decision, is speculative and is not relevant to our factor, he would not have disturbed the decision of February I to extend inquiry. Malloy's probationary period. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onstrate that it relied on this incident as a basis for ployee." 3 For the reasons below, we also find that the decision. Long did not consider these factors at the time he We note initially that the Administrative Law made his decision. Judge did not pinpoint the precise time at which While it is undisputed that Malloy had an incon- the discharge decision was made, finding only that sistent performance record, it is also established Long arrived at his decision sometime "on the that on Friday, February 1, Respondent had decid- afternoon of February 4." We find merit to the ed to extend Malloy's probationary period after his General Counsel's contention that Long decided to supervisor, Petrov, had judged his most recent discharge Malloy at the precise moment that he de- work acceptable and had noted that a previous manded Malloy's personnel file and declared that warning about socializing had made an impression he had "had it," during the conversation with on him. 4 In these circumstances, we cannot find Denton and Seville following the brown bag lunch. that Malloy's performance, which had been found Our finding in this regard is grounded in the cir- sufficiently acceptable to warrant an indefinite ex- cumstances in which the remarks were made. Thus, tension of his probationary period on February 1. Malloy's comments had caused Long to be visibly suddenly formed a part of the basis for the decision upset both during and after the brown bag lunch. to discharge him only 3 days later. The recent ex- Long's remarks were made immediately after tension of the probationary period also precludes a Malloy had engaged in protected conduct, and the finding that Respondent relied on Malloy's continu- decisive manner in which they were uttered indi- ing probationary status in making its decision. cated that a final disposition of the issue was forth- Moreover, the record discloses no evidence that coming. In these circumstances, Long's demand for Long considered Malloy's performance problems the file and his declaration that he had "had it" or probationary status at the time he stated that he cannot be interpreted as manifesting anything other had "had it" during his conversation with Seville than a firm resolve to discharge Malloy. and Denton. On the contrary, the evidence indi- The Administrative Law Judge also found that cates only that Malloy's comments about unioniza- Denton informed Long of the paycheck incident tion were discussed at the moment that Long made for the first time during the course of this same his decision. conversation, but again he did not specify the pre- Consideration must also be given to the fact that cise time at which Denton did so. He found only 'much of the evidence used to justify the discharge that Long "may" have been informed prior to de- was not gathered until the day after the decision manding Malloy's personnel fi l e an d declaring that was made. As the Administrative Law Judge he had "had it." After a careful review of the found, Long informed Murray of his decision on record, we find no evidence that Long had been the m o 5 a instructed her to apprised of the paycheck incident prior to that p memorandum setting forth everything moment, which, as we have found, was the she knew about Malloy. It was this memorandum moment at which the discharge decision was made. w h b Malloy's performance record as Therefore, since Respondent has not established w l h a b ed M l o ,Peornc c r s Therfor, sice espnden ha no estblihed "generally unacceptable," noted his "sloppy hand- that Long was aware of the paycheck incident at wiin, a se ed t at l e ha dab s c o p ens ato- that time, it has not demonstrated that the incident itim"e n asserted that he had abused compensatory was a motivating factor in the decision to dis- time and other privileges, and observed that he had charge Malloyi fengaged in excessive socializing. We do not suggest charge Malloy.' ~~~~that Long was completely unaware of Malloy's The Administrative Law Judge also found that, p o n c a n oter mseane ou probes in deciding to discharge Malloy, Respondent relied uniFeruary an other thelta t Loblems on Malloy's "probationary status, failure to sustain derd tFebruary 5. However, the fact that Long or- an acceptable level of performance, and other dered the preparation of the memorandum after the problems Respondent had had with him as an em- dec isio n h a d been made, when coupled with the proble ms R espondent had h ad with hi m as an em - absence of evidence that these problem s w ere con- 2 The Administrative Law Judge credited Long's testimony that he sidered at the time of the decision, indicates that would have discharged Malloy upon learning of the paycheck incident, Respondent offered the problems listed in the even in the absence of the protected activity. We find that the Adminis- memorandum as mere afterthoughts. trative Law Judge's credibility resolution in this regard is of no conse- quence, since it has not been established that Long knew of the paycheck incident at the time he decided to discharge Malloy. In discerning an em- In using the phrase "other problems," the Administrative Law Judge ployer's motive for a disciplinary action, we analyze only those factors was apparently referring to the items listed in Supervisor Murray's memo which the employer considered at the time the action was taken. Wheth- of February 5, discussed infra. er an employee would have been discharged for conduct occurring after IIn this connection we also note Long's testimony that in the absence the disciplinary decision, or for conduct of which the employer was not of the paycheck incident, which has not been shown to be a motivating apprised until after the decision, is speculative and is not relevant to our factor, he would not have disturbed the decision of February I to extend inquiry. Malloy's probationary period. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onstrate that it relied on this incident as a basis for ployee." 3 For the reasons below, we also find that the decision. Long did not consider these factors at the time he We note initially that the Administrative Law made his decision. Judge did not pinpoint the precise time at which While it is undisputed that Malloy had an incon- the discharge decision was made, finding only that sistent performance record, it is also established Long arrived at his decision sometime "on the that on Friday, February 1, Respondent had decid- afternoon of February 4." We find merit to the ed to extend Malloy's probationary period after his General Counsel's contention that Long decided to supervisor, Petrov, had judged his most recent discharge Malloy at the precise moment that he de- work acceptable and had noted that a previous manded Malloy's personnel file and declared that warning about socializing had made an impression he had "had it," during the conversation with on him. 4 In these circumstances, we cannot find Denton and Seville following the brown bag lunch. that Malloy's performance, which had been found Our finding in this regard is grounded in the cir- sufficiently acceptable to warrant an indefinite ex- cumstances in which the remarks were made. Thus, tension of his probationary period on February 1. Malloy's comments had caused Long to be visibly suddenly formed a part of the basis for the decision upset both during and after the brown bag lunch. to discharge him only 3 days later. The recent ex- Long's remarks were made immediately after tension of the probationary period also precludes a Malloy had engaged in protected conduct, and the finding that Respondent relied on Malloy's continu- decisive manner in which they were uttered indi- ing probationary status in making its decision. cated that a final disposition of the issue was forth- Moreover, the record discloses no evidence that coming. In these circumstances, Long's demand for Long considered Malloy's performance problems the file and his declaration that he had "had it" or probationary status at the time he stated that he cannot be interpreted as manifesting anything other had "had it" during his conversation with Seville than a firm resolve to discharge Malloy. and Denton. On the contrary, the evidence indi- The Administrative Law Judge also found that cates only that Malloy's comments about unioniza- Denton informed Long of the paycheck incident tion were discussed at the moment that Long made for the first time during the course of this same his decision. conversation, but again he did not specify the pre- Consideration must also be given to the fact that cise time at which Denton did so. He found only 'much of the evidence used to justify the discharge that Long "may" have been informed prior to de- was not gathered until the day after the decision manding Malloy's personnel fi l e an d declaring that was made. As the Administrative Law Judge he had "had it." After a careful review of the found, Long informed Murray of his decision on record, we find no evidence that Long had been the m o 5 a instructed her to apprised of the paycheck incident prior to that p memorandum setting forth everything moment, which, as we have found, was the she knew about Malloy. It was this memorandum moment at which the discharge decision was made. w h b Malloy's performance record as Therefore, since Respondent has not established w l h a b ed M l o ,Peornc rcrd s Therfor, sice espnden ha no estblihed "generally unacceptable," noted his "sloppy hand- that Long was aware of the paycheck incident at wiin, a se ed t at l e had a p e t that time, it has not demonstrated that the incident itim"e n asserted that he had abused compensatory was a motivating factor in the decision to dis- time and other privileges, and observed that he had charge Malloyi fengaged in excessive socializing. We do not suggest charge Malloy.' ~~~~that Long was completely unaware of Malloy's The Administrative Law Judge also found that, p o n c a n oter m ne o blems in deciding to discharge Malloy, Respondent relied ueiferuary an other thelta t Loblems on Malloy's "probationary status, failure to sustain dre*t February 5. However, the fact that Long or- an acceptable level of performance, and other dered the preparation of the memorandum after the problems Respondent had had with him as an em- dec isio n h a d b een made, when coupled with the proble ms R espondent had h ad with hi m as an em - absence of evidence that these problem s w ere con- 2 The Administrative Law Judge credited Long's testimony that he sidered at the time of the decision, indicates that would have discharged Malloy upon learning of the paycheck incident, Respondent offered the problems listed in the even in the absence of the protected activity. We find that the Adminis- memorandum as mere afterthoughts. trative Law Judge's credibility resolution in this regard is of no conse- quence, since it has not been established that Long knew of the paycheck incident at the time he decided to discharge Malloy. In discerning an em- In using the phrase "other problems," the Administrative Law Judge ployer's motive for a disciplinary action, we analyze only those factors was apparently referring to the items listed in Supervisor Murray's memo which the employer considered at the time the action was taken. Wheth- of February 5, discussed infra. er an employee would have been discharged for conduct occurring after IIn this connection we also note Long's testimony that in the absence the disciplinary decision, or for conduct of which the employer was not of the paycheck incident, which has not been shown to be a motivating apprised until after the decision, is speculative and is not relevant to our factor, he would not have disturbed the decision of February I to extend inquiry. Malloy's probationary period. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD onstrate that it relied on this incident as a basis for ployee." 3 For the reasons below, we also find that the decision. Long did not consider these factors at the time he We note initially that the Administrative Law made his decision. Judge did not pinpoint the precise time at which While it is undisputed that Malloy had an incon- the discharge decision was made, finding only that sistent performance record, it is also established Long arrived at his decision sometime "on the that on Friday, February 1, Respondent had decid- afternoon of February 4." We find merit to the ed to extend Malloy's probationary period after his General Counsel's contention that Long decided to supervisor, Petrov, had judged his most recent discharge Malloy at the precise moment that he de- work acceptable and had noted that a previous manded Malloy's personnel file and declared that warning about socializing had made an impression he had "had it," during the conversation with on him. 4 In these circumstances, we cannot find Denton and Seville following the brown bag lunch. that Malloy's performance, which had been found Our finding in this regard is grounded in the cir- sufficiently acceptable to warrant an indefinite ex- cumstances in which the remarks were made. Thus, tension of his probationary period on February 1. Malloy's comments had caused Long to be visibly suddenly formed a part of the basis for the decision upset both during and after the brown bag lunch. to discharge him only 3 days later. The recent ex- Long's remarks were made immediately after tension of the probationary period also precludes a Malloy had engaged in protected conduct, and the finding that Respondent relied on Malloy's continu- decisive manner in which they were uttered indi- ing probationary status in making its decision. cated that a final disposition of the issue was forth- Moreover, the record discloses no evidence that coming. In these circumstances, Long's demand for Long considered Malloy's performance problems the file and his declaration that he had "had it" or probationary status at the time he stated that he cannot be interpreted as manifesting anything other had "had it" during his conversation with Seville than a firm resolve to discharge Malloy. and Denton. On the contrary, the evidence indi- The Administrative Law Judge also found that cates only that Malloy's comments about unioniza- Denton informed Long of the paycheck incident tion were discussed at the moment that Long made for the first time during the course of this same his decision. conversation, but again he did not specify the pre- Consideration must also be given to the fact that cise time at which Denton did so. He found only 'much of the evidence used to justify the discharge that Long "may" have been informed prior to de- was not gathered until the day after the decision manding Malloy's personnel fi l e an d declaring that was made. As the Administrative Law Judge he had "had it." After a careful review of the found, Long informed Murray of his decision on record, we find no evidence that Long had been the m o 5 and instructed her to apprised of the paycheck incident prior to that p memorandum setting forth everything moment, which, as we have found, was the she knew about Malloy. It was this memorandum moment at which the discharge decision was made. w h b Malloy's performance record as Therefore, since Respondent has not established w l h a b ed M l o ,Peornc rcrd s Therfor, sice espnden ha no estblihed "generally unacceptable," noted his "sloppy hand- that Long was aware of the paycheck incident at wiin, a se ed t at l e had a p e t that time, it has not demonstrated that the incident itim"e n asserted that he had abused compensatory was a motivating factor in the decision to dis- time and other privileges, and observed that he had charge Malloyi fengaged in excessive socializing. We do not suggest charge Malloy.' ~~~~that Long was completely unaware of Malloy's The Administrative Law Judge also found that, p o n c a n oter m ne o blems in deciding to discharge Malloy, Respondent relied ueiferuary an other thelta t Loblems on Malloy's "probationary status, failure to sustain dre*t February 5. However, the fact that Long or- an acceptable level of performance, and other dered the preparation of the memorandum after the problems Respondent had had with him as an em- dec isio n h a d b een made, when coupled with the proble ms R espondent had h ad with hi m as an em - absence of evidence that these problem s w ere con- 2 The Administrative Law Judge credited Long's testimony that he sidered at the time of the decision, indicates that would have discharged Malloy upon learning of the paycheck incident, Respondent offered the problems listed in the even in the absence of the protected activity. We find that the Adminis- memorandum as mere afterthoughts. trative Law Judge's credibility resolution in this regard is of no conse- quence, since it has not been established that Long knew of the paycheck incident at the time he decided to discharge Malloy. In discerning an em- In using the phrase "other problems," the Administrative Law Judge ployer's motive for a disciplinary action, we analyze only those factors was apparently referring to the items listed in Supervisor Murray's memo which the employer considered at the time the action was taken. Wheth- of February 5, discussed infra. er an employee would have been discharged for conduct occurring after IIn this connection we also note Long's testimony that in the absence the disciplinary decision, or for conduct of which the employer was not of the paycheck incident, which has not been shown to be a motivating apprised until after the decision, is speculative and is not relevant to our factor, he would not have disturbed the decision of February I to extend inquiry. Malloy's probationary period. TERA ADVANCED SERVICES CORPORATION 951 Finally, the Board has traditionally viewed the mott Foods, Inc., 242 NLRB 1357 (1979), we shall timing of a discharge as one element to be weighed also provide for a narrow cease-and-desist order. in discerning an employer's motivation. 5 Here the decision to discharge Malloy was made immediate-ORDER ly after he had raised the issue of unionization at Pursuant to Section 10(c) of the National Labor the brown bag lunch. Long's decisive response to Relations Act, as amended, the National Labor Re- Malloy's comments, when viewed in conjunction lations Board hereby orders that the Respondent, with the preceding onsiderations, suggests that Re- TERA Advanced Services Corporation, Bethesda, spondent would not have discharged Malloy in the Maryland, its officers, agents, successors, and as- absence of his protected activity. signs, shall: In view of the foregoing, we find that Respond- 1. Cease and desist from: ent's asserted reasons for discharging Malloy were (a) Discharging or otherwise discriminating pretexts, and that it discharged him solely because against employees because they engage in union ac- he spoke out in favor of unionization. Accordingly, tivities. we find that by discharging Malloy Respondent (b) In any like or related manner interfering violated Section 8(a)(3) and (1) of the Act. with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 CONCLUSIONS OF LAW of the Act. 1. Respondent TERA Advanced Services Cor- 2. Take the following affirmative action which poration is an employer engaged in commerce will effectuate the policies of the Act: within the meaning of Section 2(6) and (7) of the (a) Offer Daniel J. Malloy immediate and full re- Act. instatement to his former position, or, if that posi- 2. By discharging Daniel J. Malloy because of tion no longer exists, to a substantially equivalent his union activities, Respondent violated Section position, without prejudice to his seniority or other 8(a)(3) and (1) of the Act. rights and privileges previously enjoyed, and make 3. The aforesaid unfair labor practice affects him whole for any losses incurred by reason of the commerce within the meaning of Section 2(6) and discrimination practiced against him, in the manner (7) of the Act. set forth in the section of this Decision entitled "The Remedy." THE REMEDY (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- Having found that Respondent engaged in an Having found that Respondent engaged in an ing, all payroll records, social security payment re- unfair labor practice in violation of Section 8(a3) cords, timecards, personnel records and reports, and (1) of the Act, we shall order that Respondent and all other records necessary to analyze the cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Order Act. Accordingly, we shall order Respondent to (c) Post at its Bethesda, Maryland, facility copies offer Daniel J. Malloy immediate and full reinstate- of the attached notice marked "Appendix. Copies of the attached notice marked "Appendix." 7 Copies ment to his former position or, if that position no of said notice, on forms provided by the Regional longer exists, to a substantially equivalent position, Director for Region 5, after being duly signed by without prejudice to his seniority or other rights Respondent's authorized representative, shall be and privileges previously enjoyed, and to make him Respondent atel whole for any loss of earnings he may have suf- oted b Resndentaimediately uponseceipt thereof, and be maintained by it for 60 consecutive fered as a result of the discrimination practiced theref in consicuous ces against him by paying to him a sum equal to what days thereafter, in conspicuous places, including all against him by paying to him a sum equal to what to employees are customarily he would have earned, less any net interim earn- places where notices to employees are customarily he would have earned, less any net interim earn- ings, plus interest. Backpay shall be computed in posted. Reasonable steps shall be taken by Re- accordance with the formula set forth in F W spondent to insure that said notices are not altered, accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with in- defaced, or covered by any other material. terest thereon to be computed in the manner de- (d) Notify the Regional Director for Region 5, in terest thereon to be computed in the manner de- . . . ^ - scribed in Florida Steel Corporation, 231 NLRB 651 writing, within 20 days from the date of this Order, scribed in Florida Steel Corporation, 231 NLRB 651 (1977).6 In accordance with our decision in Hick- 146 (1980), Meber Jenkins would award interest on the backpay due based on the formula set forth therein. W. H. Scott d/b/a Scott's Wood Products, 242 NLRB 1193, 1197 In the event that this Order is enforced by a Judgment of a United (1979); Jeffrey P. Jenks d/b/a Jenks Cartage Company, 219 NLRB 368 States Court of Appeals, the words in the notice reading "Posted by (1975). Order of the National Labor Relations Board" shall read "Posted Pursu- See, generally, Isis Plumbing & Healing Ca, 138 NLRB 716 (1962). In ant to a Judgment of the United States Court of Appeals Enforcing an accordance with his dissent in Olympic Medical Corporation, 250 NLRB Order of the National Labor Relations Board." TERA ADVANCED SERVICES CORPORATION 951 Finally, the Board has traditionally viewed the mott Foods, Inc., 242 NLRB 1357 (1979), we shall timing of a discharge as one element to be weighed also provide for a narrow cease-and-desist order. in discerning an employer's motivation. 5 Here theRDER decision to discharge Malloy was made immediate-ORDER ly after he had raised the issue of unionization at Pursuant to Section 10(c) of the National Labor the brown bag lunch. Long's decisive response to Relations Act, as amended, the National Labor Re- Malloy's comments, when viewed in conjunction lations Board hereby orders that the Respondent, with the preceding onsiderations, suggests that Re- TERA Advanced Services Corporation, Bethesda, spondent would not have discharged Malloy in the Maryland, its officers, agents, successors, and as- absence of his protected activity. signs, shall: In view of the foregoing, we find that Respond- 1. Cease and desist from: ent's asserted reasons for discharging Malloy were (a) Discharging or otherwise discriminating pretexts, and that it discharged him solely because against employees because they engage in union ac- he spoke out in favor of unionization. Accordingly, tivities. we find that by discharging Malloy Respondent (b) In any like or related manner interfering violated Section 8(a)(3) and (1) of the Act. with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 CONCLUSIONS OF LAW of the Act. 1. Respondent TERA Advanced Services Cor- 2. Take the following affirmative action which poration is an employer engaged in commerce will effectuate the policies of the Act: within the meaning of Section 2(6) and (7) of the (a) Offer Daniel J. Malloy immediate and full re- Act. instatement to his former position, or, if that posi- 2. By discharging Daniel J. Malloy because of tion no longer exists, to a substantially equivalent his union activities, Respondent violated Section position, without prejudice to his seniority or other 8(a)(3) and (1) of the Act. rights and privileges previously enjoyed, and make 3. The aforesaid unfair labor practice affects him whole for any losses incurred by reason of the commerce within the meaning of Section 2(6) and discrimination practiced against him, in the manner (7) of the Act. se t forth in the section of this Decision entitled "The Remedy." THE REMEDY (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- Having found that Respondent engaged in an i records social security payment re- unfair labor practice in violation of Section 8(a) cords, timecards, personnel records and reports, and (1) of the Act, we shall order that Respondent and all other records necessary to analyze the cease and desist therefrom and take certain affirma- a of bk d u t tive action designed to effectuate the policies of the Order. Act. Accordingly, we shall order Respondent to (c) Post at its Bethesda, Maryland, facility copies offer Daniel J. Malloy immediate and full reinstate- of the attached notice marked "Appendix." 7 Copies ment to his former Position or, if that position no of said notice, on forms provided by the Regional longer exists, to a substantially equivalent position, Director for Region 5, after being duly signed by without prejudice to his seniority or other rights Respondent's authorized representative, shall be and privileges previously enjoyed, and to make him p Respondent immediately upon receipt whole for any loss of earnings he may have suf- p bespaintainedit uponsecut fered as a result of the discrimination practiced thereafter, in conspicuous places, including all against him by paying to him a sum equal to what days thereae in c to employees are customarily he would have earned, less any net interim earn- place sonable step s are bytm e- ings, plus interest. Backpay shall be computed in posted. Reasonable steps shall be taken by Re- accordance with the formula set forth in F W. s t ic Woolworth Company, 90 NLRB 289 (1950), with in- defaced, or covered by any other material. terest thereon to be computed in the manner de- d Notify ^the Regional f Director for Region 5, in scribed in Florida Steel Corporation, 231 NLRB 651 w (1977).1 In accordance With our decision in Hick- 146 (19,0) MemberJenins would award interest on the backpay due based on the formula set forth therein. 8 W. H. Scott d/b/a Scott's Wood Products, 242 NLRB 1193, 1197 In the event that this Order is enforced by a Judgment of a United (1979); Jeffrey P. Jenks d/b/a Jenks Cartage Company, 219 NLRB 368 States Court of Appeals, the words in the notice reading "Posted by (1975). Order of the National Labor Relations Board" shall read "Posted Pursu- *See, generally, Isis Plumbing d Heating Ca, 138 NLRB 716 (1962). In ant to a Judgment of the United States Court of Appeals Enforcing an accordance with his dissent in Olympic Medical Corporation, 250 NLRB Order of the National Labor Relations Board." TERA ADVANCED SERVICES CORPORATION 951 Finally, the Board has traditionally viewed the mott Foods, Inc., 242 NLRB 1357 (1979), we shall timing of a discharge as one element to be weighed also provide for a narrow cease-and-desist order. in discerning an employer's motivation. 5 Here theRDER decision to discharge Malloy was made immediate-ORDER ly after he had raised the issue of unionization at Pursuant to Section 10(c) of the National Labor the brown bag lunch. Long's decisive response to Relations Act, as amended, the National Labor Re- Malloy's comments, when viewed in conjunction lations Board hereby orders that the Respondent, with the preceding onsiderations, suggests that Re- TERA Advanced Services Corporation, Bethesda, spondent would not have discharged Malloy in the Maryland, its officers, agents, successors, and as- absence of his protected activity. signs, shall: In view of the foregoing, we find that Respond- 1. Cease and desist from: ent's asserted reasons for discharging Malloy were (a) Discharging or otherwise discriminating pretexts, and that it discharged him solely because against employees because they engage in union ac- he spoke out in favor of unionization. Accordingly, tivities. we find that by discharging Malloy Respondent (b) In any like or related manner interfering violated Section 8(a)(3) and (1) of the Act. with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 CONCLUSIONS OF LAW of the Act. 1. Respondent TERA Advanced Services Cor- 2. Take the following affirmative action which poration is an employer engaged in commerce will effectuate the policies of the Act: within the meaning of Section 2(6) and (7) of the (a) Offer Daniel J. Malloy immediate and full re- Act. instatement to his former position, or, if that posi- 2. By discharging Daniel J. Malloy because of tion no longer exists, to a substantially equivalent his union activities, Respondent violated Section position, without prejudice to his seniority or other 8(a)(3) and (1) of the Act. rights and privileges previously enjoyed, and make 3. The aforesaid unfair labor practice affects him whole for any losses incurred by reason of the commerce within the meaning of Section 2(6) and discrimination practiced against him, in the manner (7) of the Act. se t forth in the section of this Decision entitled "The Remedy." THE REMEDY (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- Having found that Respondent engaged in an i records social security payment re- unfair labor practice in violation of Section 8(a) cords, timecards, personnel records and reports, and (1) of the Act, we shall order that Respondent and all other records necessary to analyze the cease and desist therefrom and take certain affirma- a of bk d u t tive action designed to effectuate the policies of the Order. Act. Accordingly, we shall order Respondent to (c) Post at its Bethesda, Maryland, facility copies offer Daniel J. Malloy immediate and full reinstate- of the attached notice marked "Appendix." 7 Copies ment to his former Position or, if that position no of said notice, on forms provided by the Regional longer exists, to a substantially equivalent position, Director for Region 5, after being duly signed by without prejudice to his seniority or other rights Respondent's authorized representative, shall be and privileges previously enjoyed, and to make him p Respondent immediately upon receipt whole for any loss of earnings he may have suf- p bespaintainedit uponsecut fered as a result of the discrimination practiced thereafter, in conspicuous places, including all against him by paying to him a sum equal to what days thereae in c to employees are customarily he would have earned, less any net interim earn- place sonable step s are bytm e- ings, plus interest. Backpay shall be computed in posted. Reasonable steps shall be taken by Re- accordance with the formula set forth in F W. s t ic Woolworth Company, 90 NLRB 289 (1950), with in- defaced, or covered by any other material. terest thereon to be computed in the manner de- d Notify ^the Regional f Director for Region 5, in scribed in Florida Steel Corporation, 231 NLRB 651 w (1977).1 In accordance With our decision in Hick- 146 (19,0) MemberJenins would award interest on the backpay due based on the formula set forth therein. 8 W. H. Scott d/b/a Scott's Wood Products, 242 NLRB 1193, 1197 In the event that this Order is enforced by a Judgment of a United (1979); Jeffrey P. Jenks d/b/a Jenks Cartage Company, 219 NLRB 368 States Court of Appeals, the words in the notice reading "Posted by (1975). Order of the National Labor Relations Board" shall read "Posted Pursu- *See, generally, Isis Plumbing d Heating Ca, 138 NLRB 716 (1962). In ant to a Judgment of the United States Court of Appeals Enforcing an accordance with his dissent in Olympic Medical Corporation, 250 NLRB Order of the National Labor Relations Board." TERA ADVANCED SERVICES CORPORATION 951 Finally, the Board has traditionally viewed the mott Foods, Inc., 242 NLRB 1357 (1979), we shall timing of a discharge as one element to be weighed also provide for a narrow cease-and-desist order. in discerning an employer's motivation. 5 Here theRDER decision to discharge Malloy was made immediate-ORDER ly after he had raised the issue of unionization at Pursuant to Section 10(c) of the National Labor the brown bag lunch. Long's decisive response to Relations Act, as amended, the National Labor Re- Malloy's comments, when viewed in conjunction lations Board hereby orders that the Respondent, with the preceding onsiderations, suggests that Re- TERA Advanced Services Corporation, Bethesda, spondent would not have discharged Malloy in the Maryland, its officers, agents, successors, and as- absence of his protected activity. signs, shall: In view of the foregoing, we find that Respond- 1. Cease and desist from: ent's asserted reasons for discharging Malloy were (a) Discharging or otherwise discriminating pretexts, and that it discharged him solely because against employees because they engage in union ac- he spoke out in favor of unionization. Accordingly, tivities. we find that by discharging Malloy Respondent (b) In any like or related manner interfering violated Section 8(a)(3) and (1) of the Act. with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 CONCLUSIONS OF LAW of the Act. 1. Respondent TERA Advanced Services Cor- 2. Take the following affirmative action which poration is an employer engaged in commerce will effectuate the policies of the Act: within the meaning of Section 2(6) and (7) of the (a) Offer Daniel J. Malloy immediate and full re- Act. instatement to his former position, or, if that posi- 2. By discharging Daniel J. Malloy because of tion no longer exists, to a substantially equivalent his union activities, Respondent violated Section position, without prejudice to his seniority or other 8(a)(3) and (1) of the Act. rights and privileges previously enjoyed, and make 3. The aforesaid unfair labor practice affects him whole for any losses incurred by reason of the commerce within the meaning of Section 2(6) and discrimination practiced against him, in the manner (7) of the Act. se t forth in the section of this Decision entitled "The Remedy." THE REMEDY (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- Having found that Respondent engaged in an i records social security payment re- unfair labor practice in violation of Section 8(a) cords, timecards, personnel records and reports, and (1) of the Act, we shall order that Respondent and all other records necessary to analyze the cease and desist therefrom and take certain affirma- a of bk d u t tive action designed to effectuate the policies of the Order. Act. Accordingly, we shall order Respondent to (c) Post at its Bethesda, Maryland, facility copies offer Daniel J. Malloy immediate and full reinstate- of the attached notice marked "Appendix." 7 Copies ment to his former Position or, if that position no of said notice, on forms provided by the Regional longer exists, to a substantially equivalent position, Director for Region 5, after being duly signed by without prejudice to his seniority or other rights Respondent's authorized representative, shall be and privileges previously enjoyed, and to make him p Respondent immediately upon receipt whole for any loss of earnings he may have suf- p bespaintainedit uponsecut fered as a result of the discrimination practiced thereafter, in conspicuous places, including all against him by paying to him a sum equal to what days thereae in c to employees are customarily he would have earned, less any net interim earn- place sonable step s are bytm e- ings, plus interest. Backpay shall be computed in posted. Reasonable steps shall be taken by Re- accordance with the formula set forth in F W. s t ic Woolworth Company, 90 NLRB 289 (1950), with in- defaced, or covered by any other material. terest thereon to be computed in the manner de- d Notify ^the Regional f Director for Region 5, in scribed in Florida Steel Corporation, 231 NLRB 651 w (1977).1 In accordance With our decision in Hick- 146 (19,0) MemberJenins would award interest on the backpay due based on the formula set forth therein. 8 W. H. Scott d/b/a Scott's Wood Products, 242 NLRB 1193, 1197 In the event that this Order is enforced by a Judgment of a United (1979); Jeffrey P. Jenks d/b/a Jenks Cartage Company, 219 NLRB 368 States Court of Appeals, the words in the notice reading "Posted by (1975). Order of the National Labor Relations Board" shall read "Posted Pursu- *See, generally, Isis Plumbing d Heating Ca, 138 NLRB 716 (1962). In ant to a Judgment of the United States Court of Appeals Enforcing an accordance with his dissent in Olympic Medical Corporation, 250 NLRB Order of the National Labor Relations Board." 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps Respondent has taken to comply here- the alleged unfair labor practices. A hearing on the com- with. plaint was held before me at Washington, D.C., on Octo- ber 9 and 10, 1980. Briefs were filed by the General MEMBER FANNING, dissenting: Counsel, Respondent, and the Charging Party on De- I think the Administrative Law Judge has fairly cember 1, 1980. and reasonably analyzed the facts in this case and Upon the entire record, including my observation of has arrived at the proper conclusion. I agree with the demeanor of the witnesses, and after due considera- him in his analysis and conclusion. Accordingly, I tion of the briefs filed by the parties, I make the follow- him in his analysis and conclusion. Accordingly, I dissent from my colleagues' reversal of his deci- sion. FINDINGS OF FACT APPENDIX 1. THE BUSINESS OF RESPONDENT NOTICE To EMPLOYEES Respondent, a California corporation, is engaged at its POSTED BY ORDER OF THE Bethesda, Maryland, facility-its only facility involved NATIONAL LABOR RELATIONS BOARD herein-in providing techinical services to government An Agency of the United States Government agencies. During the 12-month period preceding the issu- ance of the complaint, Respondent received in excess of sids hd an oort- $50,000 for services provided by its Bethesda facility for After a hearing at which all sides had an opportu- customers located outside the State of Maryland. Re- nity to present evidence and state their positions, spondent admits that it is engaged in commerce within the National Labor Relations Board found that we the meaning of Section 2(6) and (7) of the Act, and it is have violated the National Labor Relations Act, as so found. amended, and has ordered us to post this notice. II. THE UNFAIR LABOR PRACTICES WE WILL NOT discharge or otherwise dis-. THE UNFAIR LABOR PRACTICES criminate against our employees because they A. Introduction; the Issues engage in union activities. WE WILL NOT in any like or related manner As indicated above, the central issue in this case is interferWE WILL NOT rsain, or l re o ure d ema r whether Respondent violated Section 8(a)(l) and (3) of interfere with, restrain, or coerce our employ- the Act by its discharge on February 5, 1980, of Daniel ees in the exercise of the rights guaranteed J. Malloy, an employee at its Bethesda, Maryland, facili- them by Section 7 of the National Labor Rela- ty. The complaint alleges more specifically that Re- tions Act. spondent discharged Malloy because he engaged in pro- WE WILL offer Daniel J. Malloy immediate tected concerted activity by attempting to interest fellow and full reinstatement to his former position employees in union representation. or, if that position no longer exists, to a sub- Respondent employs approximately 100 employees at stantially equivalent position, without preju- its Bethesda facility. The employees have never been dice to his seniority or other rights and privi- represented by any union and, so far as appears, no union leges previously enjoyed and WE WILL make effort has ever been made to organize them. The General him whole, with interest, for any losses in- Counsel makes no claim that Malloy at any time engaged him whole, with interest, for any losses in- any ak o it rest employees to seek union repre- in any activity to interest employees to seek union repre- curred by reason of the discrimination prac- sentation other than by his conduct at the meeting de- ticed against him. scribed below. As will hereinafter be more fully detailed, on Monday, TERA ADVANCED SERVICES CORPO- Feburary 4, 1980, Project Manager James A. Long, Re- RATION spondent's top management official at its Bethesda facili- ty, had a "brown bag" lunch meeting with some 25 em- DECISION ployees of the facility to give them an overview of Re- STATEMENT OF THE CASE spondent's national operations. At the conclusion of his address, Long invited questions from the employees ARTHUR LEFF, Administrative Law Judge: Upon a about anything they wanted to talk about. Malloy asked charge filed by Daniel J. Malloy on February 27, 1980, Long how management would react to the formation of the General Counsel of the National Labor Relations an employee union at the facility and also made certain Board, by the Regional Director for Region 5, issued a comments indicating the desirability of having differ- complaint, dated April 18, 1980, against TERA Ad- ences between management and employees relating to vanced Services Corporation, Respondent herein, alleg- terms and conditions of employment resolved through ing that Respondent had engaged in unfair labor prac- the collective-bargaining process. Respondent discharged tices within the meaning of Section 8(a)(l) and (3) of the Malloy on Tuesday, Feburary 5, the day following the National Labor Relations Act by terminating the em- meeting. The General Counsel's basic position in this ployment of the Charging Party on February 5, 1980. case is that Respondent's discharge action was motivated Respondent filed an answer denying the commission of by Malloy's question and comments at the meeting; that 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps Respondent has taken to comply here- the alleged unfair labor practices. A hearing on the com- with. plaint was held before me at Washington, D.C., on Octo- ber 9 and 10, 1980. Briefs were filed by the General MEMBER FANNING, dissenting: Counsel, Respondent, and the Charging Party on De- I think the Administrative Law Judge has fairly cember 1, 1980. and reasonably analyzed the facts in this case and Upon t h e e n ti re re co r d , including my observation of has arrived at the proper conclusion. I agree with t h e demeanor of the witnesses, and after due considera- tion of the briefs riled by the parties, I make the follow- him in his analysis and conclusion. Accordingly, I i ng: dissent from my colleagues' reversal of his deci- sion. FINDINGS OF FACT APPENDIX 1. THE BUSINESS OF RESPONDENT NOTICE To EMPLOYEES Respondent, a California corporation, is engaged at its POSTED BY ORDER OF THE Bethesda, Maryland, facility-its only facility involved NATIONAL LABOR RELATIONS BOARD herein-in providing techinical services to government An Agency of the United States Government agencies. During the 12-month period preceding the issu- ance of the complaint, Respondent received in excess of After a hearing at wh.ich all sides hadan opportu- $50,000 for services provided by its Bethesda facility for After a hearing at which all sides had an opportu-i customers located outside the State of Maryland. Re- nity to present evidence and state their positions, spondent admits that it is engaged in commerce within the National Labor Relations Board found that we the meaning of Section 2(6) and (7) of the Act, and it is have violated the National Labor Relations Act, as so found. amended, and has ordered us to post this notice. ,. , - . .. ~~~~~II. THE UNFAIR LABOR PRACTICES WE WILL NOT discharge or otherwise dis- criminate against our employees because they A. Introduction; the Issues engage in union activities.. . WE WILL NOT in any like or related manner As indicated above, the central issue in this case is WE* WILL NOT in any like or related manner whether Respondent violated Section 8(a)(l) and (3) of interfere with, restrain, or coerce our employ- the Act by its discharge on February 5, 1980, of Daniel ees in the exercise of the rights guaranteed J. Malloy, an employee at its Bethesda, Maryland, facili- them by Section 7 of the National Labor Rela- ty. The complaint alleges more specifically that Re- tions Act. spondent discharged Malloy because he engaged in pro- WE WILL offer Daniel J. Malloy immediate tected concerted activity by attempting to interest fellow and full reinstatement to his former position employees in union representation. or, if that position no longer exists, to a sub- Respondent employs approximately 100 employees at stantially equivalent position, without preju- its Bethesda facility. The employees have never been dice to his seniority or other rights and privi- represented by any union and, so far as appears, no union leges previously enjoyed and WE WILL make effo r t h a s ev e r been made to organize them. The General ..- , ole, ..it *nterest . .r ,ny i^,,,, ;n- Counsel makes no claim that Malloy at any time engaged him whole, with interest, for any losses in- in any activity to interest employees to seek union repre- curred by reason of the discrimination prac- sentation other than by his conduct at the meeting de- ticed against him. scribed below. As will hereinafter be more fully detailed, on Monday, TERA ADVANCED SERVICES CORPO- Feburary 4, 1980, Project Manager James A. Long, Re- RATION spondent's top management official at its Bethesda facili- ty, had a "brown bag" lunch meeting with some 25 em- DECISION ployees of the facility to give them an overview of Re- STATEMENT OF THE CASE spondent's national operations. At the conclusion of his address, Long invited questions from the employees ARTHUR LEFF, Administrative Law Judge: Upon a about anything they wanted to talk about. Malloy asked charge filed by Daniel J. Malloy on February 27, 1980, Long how management would react to the formation of the General Counsel of the National Labor Relations an employee union at the facility and also made certain Board, by the Regional Director for Region 5, issued a comments indicating the desirability of having differ- complaint, dated April 18, 1980, against TERA Ad- ences between management and employees relating to vanced Services Corporation, Respondent herein, alleg- terms and conditions of employment resolved through ing that Respondent had engaged in unfair labor prac- the collective-bargaining process. Respondent discharged tices within the meaning of Section 8(a)(l) and (3) of the Malloy on Tuesday, Feburary 5, the day following the National Labor Relations Act by terminating the em- meeting. The General Counsel's basic position in this ployment of the Charging Party on February 5, 1980. case is that Respondent's discharge action was motivated Respondent filed an answer denying the commission of by Malloy's question and comments at the meeting; that 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps Respondent has taken to comply here- the alleged unfair labor practices. A hearing on the com- with. plaint was held before me at Washington, D.C., on Octo- ber 9 and 10, 1980. Briefs were filed by the General MEMBER FANNING, dissenting: Counsel, Respondent, and the Charging Party on De- I think the Administrative Law Judge has fairly cember 1, 1980. and reasonably analyzed the facts in this case and Upon t h e entire record, including my observation of has arrived at the proper conclusion. I agree with t h e demeanor of the witnesses, and after due considera- tion of the briefs riled by the parties, I make the follow- him in his analysis and conclusion. Accordingly, I i ng: dissent from my colleagues' reversal of his deci- sion. FINDINGS OF FACT APPENDIX 1. THE BUSINESS OF RESPONDENT NOTICE To EMPLOYEES Respondent, a California corporation, is engaged at its POSTED BY ORDER OF THE Bethesda, Maryland, facility-its only facility involved NATIONAL LABOR RELATIONS BOARD herein-in providing techinical services to government An Agency of the United States Government agencies. During the 12-month period preceding the issu- ance of the complaint, Respondent received in excess of After a hearing at wh.ich all sides hadan opportu- $50,000 for services provided by its Bethesda facility for After a hearing at which all sides had an opportu-i customers located outside the State of Maryland. Re- nity to present evidence and state their positions, spondent admits that it is engaged in commerce within the National Labor Relations Board found that we the meaning of Section 2(6) and (7) of the Act, and it is have violated the National Labor Relations Act, as so found. amended, and has ordered us to post this notice. ,. , - . .. ~~~~~II. THE UNFAIR LABOR PRACTICES WE WILL NOT discharge or otherwise dis- criminate against our employees because they A. Introduction; the Issues engage in union activities.. . WE WILL NOT in any like or related manner As indicated above, the central issue in this case is WE* WILL NOT in any like or related manner whether Respondent violated Section 8(a)(l) and (3) of interfere with, restrain, or coerce our employ- the Act by its discharge on February 5, 1980, of Daniel ees in the exercise of the rights guaranteed J. Malloy, an employee at its Bethesda, Maryland, facili- them by Section 7 of the National Labor Rela- ty. The complaint alleges more specifically that Re- tions Act. spondent discharged Malloy because he engaged in pro- WE WILL offer Daniel J. Malloy immediate tected concerted activity by attempting to interest fellow and full reinstatement to his former position employees in union representation. or, if that position no longer exists, to a sub- Respondent employs approximately 100 employees at stantially equivalent position, without preju- its Bethesda facility. The employees have never been dice to his seniority or other rights and privi- represented by any union and, so far as appears, no union leges previously enjoyed and WE WILL make effo r t h a s ev e r been made to organize them. The General ..- , ole, ..it *nterest . .r ,ny i^,,,, ;n- Counsel makes no claim that Malloy at any time engaged him whole, with interest, for any losses in- in any activity to interest employees to seek union repre- curred by reason of the discrimination prac- sentation other than by his conduct at the meeting de- ticed against him. scribed below. As will hereinafter be more fully detailed, on Monday, TERA ADVANCED SERVICES CORPO- Feburary 4, 1980, Project Manager James A. Long, Re- RATION spondent's top management official at its Bethesda facili- ty, had a "brown bag" lunch meeting with some 25 em- DECISION ployees of the facility to give them an overview of Re- STATEMENT OF THE CASE spondent's national operations. At the conclusion of his address, Long invited questions from the employees ARTHUR LEFF, Administrative Law Judge: Upon a about anything they wanted to talk about. Malloy asked charge filed by Daniel J. Malloy on February 27, 1980, Long how management would react to the formation of the General Counsel of the National Labor Relations an employee union at the facility and also made certain Board, by the Regional Director for Region 5, issued a comments indicating the desirability of having differ- complaint, dated April 18, 1980, against TERA Ad- ences between management and employees relating to vanced Services Corporation, Respondent herein, alleg- terms and conditions of employment resolved through ing that Respondent had engaged in unfair labor prac- the collective-bargaining process. Respondent discharged tices within the meaning of Section 8(a)(l) and (3) of the Malloy on Tuesday, Feburary 5, the day following the National Labor Relations Act by terminating the em- meeting. The General Counsel's basic position in this ployment of the Charging Party on February 5, 1980. case is that Respondent's discharge action was motivated Respondent filed an answer denying the commission of by Malloy's question and comments at the meeting; that 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps Respondent has taken to comply here- the alleged unfair labor practices. A hearing on the com- with. plaint was held before me at Washington, D.C., on Octo- ber 9 and 10, 1980. Briefs were filed by the General MEMBER FANNING, dissenting: Counsel, Respondent, and the Charging Party on De- I think the Administrative Law Judge has fairly cember 1, 1980. and reasonably analyzed the facts in this case and Upon t h e entire record, including my observation of has arrived at the proper conclusion. I agree with t h e demeanor of the witnesses, and after due considera- tion of the briefs riled by the parties, I make the follow- him in his analysis and conclusion. Accordingly, I i ng: dissent from my colleagues' reversal of his deci- sion. FINDINGS OF FACT APPENDIX 1. THE BUSINESS OF RESPONDENT NOTICE To EMPLOYEES Respondent, a California corporation, is engaged at its POSTED BY ORDER OF THE Bethesda, Maryland, facility-its only facility involved NATIONAL LABOR RELATIONS BOARD herein-in providing techinical services to government An Agency of the United States Government agencies. During the 12-month period preceding the issu- ance of the complaint, Respondent received in excess of After a hearing at wh.ich all sides hadan opportu- $50,000 for services provided by its Bethesda facility for After a hearing at which all sides had an opportu-i customers located outside the State of Maryland. Re- nity to present evidence and state their positions, spondent admits that it is engaged in commerce within the National Labor Relations Board found that we the meaning of Section 2(6) and (7) of the Act, and it is have violated the National Labor Relations Act, as so found. amended, and has ordered us to post this notice. ,. , - . .. ~~~~~II. THE UNFAIR LABOR PRACTICES WE WILL NOT discharge or otherwise dis- criminate against our employees because they A. Introduction; the Issues engage in union activities.. . WE WILL NOT in any like or related manner As indicated above, the central issue in this case is WE* WILL NOT in any like or related manner whether Respondent violated Section 8(a)(l) and (3) of interfere with, restrain, or coerce our employ- the Act by its discharge on February 5, 1980, of Daniel ees in the exercise of the rights guaranteed J. Malloy, an employee at its Bethesda, Maryland, facili- them by Section 7 of the National Labor Rela- ty. The complaint alleges more specifically that Re- tions Act. spondent discharged Malloy because he engaged in pro- WE WILL offer Daniel J. Malloy immediate tected concerted activity by attempting to interest fellow and full reinstatement to his former position employees in union representation. or, if that position no longer exists, to a sub- Respondent employs approximately 100 employees at stantially equivalent position, without preju- its Bethesda facility. The employees have never been dice to his seniority or other rights and privi- represented by any union and, so far as appears, no union leges previously enjoyed and WE WILL make effo r t h a s ev e r been made to organize them. The General ..- , ole, ..it *nterest . .r ,ny i^,,,, ;n- Counsel makes no claim that Malloy at any time engaged him whole, with interest, for any losses in- in any activity to interest employees to seek union repre- curred by reason of the discrimination prac- sentation other than by his conduct at the meeting de- ticed against him. scribed below. As will hereinafter be more fully detailed, on Monday, TERA ADVANCED SERVICES CORPO- Feburary 4, 1980, Project Manager James A. Long, Re- RATION spondent's top management official at its Bethesda facili- ty, had a "brown bag" lunch meeting with some 25 em- DECISION ployees of the facility to give them an overview of Re- STATEMENT OF THE CASE spondent's national operations. At the conclusion of his address, Long invited questions from the employees ARTHUR LEFF, Administrative Law Judge: Upon a about anything they wanted to talk about. Malloy asked charge filed by Daniel J. Malloy on February 27, 1980, Long how management would react to the formation of the General Counsel of the National Labor Relations an employee union at the facility and also made certain Board, by the Regional Director for Region 5, issued a comments indicating the desirability of having differ- complaint, dated April 18, 1980, against TERA Ad- ences between management and employees relating to vanced Services Corporation, Respondent herein, alleg- terms and conditions of employment resolved through ing that Respondent had engaged in unfair labor prac- the collective-bargaining process. Respondent discharged tices within the meaning of Section 8(a)(l) and (3) of the Malloy on Tuesday, Feburary 5, the day following the National Labor Relations Act by terminating the em- meeting. The General Counsel's basic position in this ployment of the Charging Party on February 5, 1980. case is that Respondent's discharge action was motivated Respondent filed an answer denying the commission of by Malloy's question and comments at the meeting; that 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what steps Respondent has taken to comply here- the alleged unfair labor practices. A hearing on the com- with. plaint was held before me at Washington, D.C., on Octo- ber 9 and 10, 1980. Briefs were filed by the General MEMBER FANNING, dissenting: Counsel, Respondent, and the Charging Party on De- I think the Administrative Law Judge has fairly cember 1, 1980. and reasonably analyzed the facts in this case and Upon t h e entire record, including my observation of has arrived at the proper conclusion. I agree with t h e demeanor of the witnesses, and after due considera- tion of the briefs riled by the parties, I make the follow- him in his analysis and conclusion. Accordingly, I i ng: dissent from my colleagues' reversal of his deci- sion. FINDINGS OF FACT APPENDIX 1. THE BUSINESS OF RESPONDENT NOTICE To EMPLOYEES Respondent, a California corporation, is engaged at its POSTED BY ORDER OF THE Bethesda, Maryland, facility-its only facility involved NATIONAL LABOR RELATIONS BOARD herein-in providing techinical services to government An Agency of the United States Government agencies. During the 12-month period preceding the issu- ance of the complaint, Respondent received in excess of After a hearing at wh.ich all sides hadan opportu- $50,000 for services provided by its Bethesda facility for After a hearing at which all sides had an opportu-i customers located outside the State of Maryland. Re- nity to present evidence and state their positions, spondent admits that it is engaged in commerce within the National Labor Relations Board found that we the meaning of Section 2(6) and (7) of the Act, and it is have violated the National Labor Relations Act, as so found. amended, and has ordered us to post this notice. ,. , - . .. ~~~~~II. THE UNFAIR LABOR PRACTICES WE WILL NOT discharge or otherwise dis- criminate against our employees because they A. Introduction; the Issues engage in union activities.. . WE WILL NOT in any like or related manner As indicated above, the central issue in this case is WE* WILL NOT in any like or related manner whether Respondent violated Section 8(a)(l) and (3) of interfere with, restrain, or coerce our employ- the Act by its discharge on February 5, 1980, of Daniel ees in the exercise of the rights guaranteed J. Malloy, an employee at its Bethesda, Maryland, facili- them by Section 7 of the National Labor Rela- ty. The complaint alleges more specifically that Re- tions Act. spondent discharged Malloy because he engaged in pro- WE WILL offer Daniel J. Malloy immediate tected concerted activity by attempting to interest fellow and full reinstatement to his former position employees in union representation. or, if that position no longer exists, to a sub- Respondent employs approximately 100 employees at stantially equivalent position, without preju- its Bethesda facility. The employees have never been dice to his seniority or other rights and privi- represented by any union and, so far as appears, no union leges previously enjoyed and WE WILL make effo r t h a s ev e r been made to organize them. The General ..- , ole, ..it *nterest . .r ,ny i^,,,, ;n- Counsel makes no claim that Malloy at any time engaged him whole, with interest, for any losses in- in any activity to interest employees to seek union repre- curred by reason of the discrimination prac- sentation other than by his conduct at the meeting de- ticed against him. scribed below. As will hereinafter be more fully detailed, on Monday, TERA ADVANCED SERVICES CORPO- Feburary 4, 1980, Project Manager James A. Long, Re- RATION spondent's top management official at its Bethesda facili- ty, had a "brown bag" lunch meeting with some 25 em- DECISION ployees of the facility to give them an overview of Re- STATEMENT OF THE CASE spondent's national operations. At the conclusion of his address, Long invited questions from the employees ARTHUR LEFF, Administrative Law Judge: Upon a about anything they wanted to talk about. Malloy asked charge filed by Daniel J. Malloy on February 27, 1980, Long how management would react to the formation of the General Counsel of the National Labor Relations an employee union at the facility and also made certain Board, by the Regional Director for Region 5, issued a comments indicating the desirability of having differ- complaint, dated April 18, 1980, against TERA Ad- ences between management and employees relating to vanced Services Corporation, Respondent herein, alleg- terms and conditions of employment resolved through ing that Respondent had engaged in unfair labor prac- the collective-bargaining process. Respondent discharged tices within the meaning of Section 8(a)(l) and (3) of the Malloy on Tuesday, Feburary 5, the day following the National Labor Relations Act by terminating the em- meeting. The General Counsel's basic position in this ployment of the Charging Party on February 5, 1980. case is that Respondent's discharge action was motivated Respondent filed an answer denying the commission of by Malloy's question and comments at the meeting; that TERA ADVANCED SERVICES CORPORATION 953 Malloy's conduct in that respect constituted protected being terminated because of low productivity, but that concerted activity; and that, consequently, Respondent's action was later rescinded when it was determined that discharge action must be ruled violative of Section the statistics relating to his productivity had been inaccu- 8(a)(l) and (3) of the Act. rately compiled. Several weeks later, his work was ree- Respondent does not dispute that Malloy asked the valuated and his performance was found to be accept- question and made the comments referred to above, but able. On May 15, 1979, he was rated average in all re- otherwise takes issue with the General Counsel's position spects and given a salary increase of $1,000 per annum. in all respects. According to Respondent, Malloy's ques- The May evaluation report notes that he had been tion and comments at the "brown bag" lunch played no moved to a quality control position because of the high role whatsoever in the discharge decision which was im- quality of encoding work he had demonstrated, and that plemented on February 5. Respondent asserts that its dis- he performed well in quality control. It appears that charge determination was based exclusively upon the fol- Malloy worked in quality control until September and lowing in combination: (1) Malloy's failure to sustain an then was transferred back to his previous position as a acceptable level of performance (along with related con- coder because due to an injury he was working only a siderations such as his poor attitude and excessive social- 25-hour week at that time and Respondent wanted a full- izing) during the period of his employment, and (2) his time employee in his quality control position. On July profane outburst before a female employee on the Friday 10, 1979, Malloy was rated below average in productiv- before his discharge when given a paycheck and a W-2 ity and attitude, and it was noted that his inconsistent form containing a wrong addreess, the details of which performance was again a problem; that he seemed to re- will be reported below. Respondent further asserts that spond to correcive counseling, but only for short peri- its determination to fire Malloy at the time it did was ods, and that he occasionally demonstrated a negative at- sparked, not by Malloy's conduct at the "brown bag" titude. A followup review was scheduled for August, but lunch, but by the paycheck incident which, according to apparently was not conducted. So far as appears, no fur- Respondent, was first brought to the attention of Long, ther review or evaluation of Malloy's work was thereaf- who made that determination, shortly after the conclu- ter made until January 1980. Malloy testified without sion of the "brown bag" lunch. Respondent insists that it contradiction that during the intervening period no man- would have taken the action it did, at the time it did, and agement representative criticized the quality of his work. for the reasons it did, whether or not Malloy had asked In early or mid-January of 1980, Petrov reviewed the the question and made the comments claimed by the work of his five-member coding team and found Malloy General Counsel to have been the cause of the discharge. to be the least accurate member of the team. At that With the respective positions of the parties thus clari- time, Petrov directed Malloy's attention to the fact that fled, I now turn to a more detailed consideration of the he was making too many mistakes. At about that time, relevant facts as reflected by the evidence in this record Petrov also discussed Malloy's situation with his supervi- that I find credible. sors, Murray and Seville. A consensus was reached to give him a warning and put him on probation for a 2-or B. The Relevant Facts 3-week period to see whether there was any improve- ment in his work. Toward that end, a formal review and i. Malloy's work history evaluation of Malloy's work was conducted on January Malloy was employed by Respondent from September 25, 1980. Malloy's performance was rated below average. 25, 1978, until his discharge on February 4, 1980, at its Petrov and Seville were instructed to give Malloy a Bethesda, Maryland, facility, where Respondent is en- "final warning." A followup was scheduled for February gaged in processing documents and performing related 1.' work for the Nuclear Regulatory Commission. Except On Friday, February 1, Petrov again reviewed Mal- for a brief period when he was assigned to quality con- loy's work. Petrov, as appears from his testimony, found trol work, Malloy's job throughout his employment was that the coding forms which Malloy had most recently that of a coder; his function as such was to review docu- produced, but which he had not theretofore seen, were ments, extract certain data elements therefrom, and acceptable. Petrov also had a conversation with Malloy report them on a coding form. Malloy's immediate super- that day about Malloy's socializing on the job and visor during the last 3 months of his employment was Malloy assured him that he would "maintain a more pro- George Petrov. Above Petrov in the supervisory chain fessional attitude in the future." Petrov concluded that of command over Malloy were Barbara Murray, the data the warning and "stern talk" given Malloy had made an manager, and Michael Seville, the operations manager, in impression on Malloy, and that Malloy should be given a that order. As earlier noted, James A. Long, now also a further chance before any adverse action was taken vice president of Respondent, was the project manager against him. Accordingly, Petrov recommended to Se- and top management official at the Bethesda facility. ville, the facility's operations manager, that Malloy's pro- Respondent's evaluation records of Malloy, which are in evidence, support Respondent's contention that The January 25, 1980, evaluation report, in addition to referring to Malloy had a history of inconsistent and at times substan- the "poor quality" of Malloy's work, also states that his "attitude" was dard performance during the period of his employment. presenting a "serious problem." The only specific evidence presented by On his first evaluation in late January 1979, he was rated Respondent to support that assertion was Petrov's testimony that during that period he was also concerned about Malloy's excessive socializing on below average in productivity, average in attitude, and the job and the disruptive effect that this was having on the work of given a warning. About a week later, he was told he was other employees. TERA ADVANCED SERVICES CORPORATION 953 Malloy's conduct in that respect constituted protected being terminated because of low productivity, but that concerted activity; and that, consequently, Respondent's action was later rescinded when it was determined that discharge action must be ruled violative of Section the statistics relating to his productivity had been inaccu- 8(a)(l) and (3) of the Act. rately compiled. Several weeks later, his work was ree- Respondent does not dispute that Malloy asked the valuated and his performance was found to be accept- question and made the comments referred to above, but able. On May 15, 1979, he was rated average in all re- otherwise takes issue with the General Counsel's position spects and given a salary increase of $1,000 per annum. in all respects. According to Respondent, Malloy's ques- The May evaluation report notes that he had been tion and comments at the "brown bag" lunch played no moved to a quality control position because of the high role whatsoever in the discharge decision which was im- quality of encoding work he had demonstrated, and that plemented on February 5. Respondent asserts that its dis- he performed well in quality control. It appears that charge determination was based exclusively upon the fol- Malloy worked in quality control until September and lowing in combination: (1) Malloy's failure to sustain an then was transferred back to his previous position as a acceptable level of performance (along with related con- coder because due to an injury he was working only a siderations such as his poor attitude and excessive social- 25-hour week at that time and Respondent wanted a full- izing) during the period of his employment, and (2) his time employee in his quality control position. On July profane outburst before a female employee on the Friday 10, 1979, Malloy was rated below average in productiv- before his discharge when given a paycheck and a W-2 ity and attitude, and it was noted that his inconsistent form containing a wrong addreess, the details of which performance was again a problem; that he seemed to re- will be reported below. Respondent further asserts that spond to correcjve counseling, but only for short peri- its determination to fire Malloy at the time it did was ods, and that he occasionally demonstrated a negative at- sparked, not by Malloy's conduct at the "brown bag" titude. A followup review was scheduled for August, but lunch, but by the paycheck incident which, according to apparently was not conducted. So far as appears, no fur- Respondent, was first brought to the attention of Long, ther review or evaluation of Malloy's work was thereaf- who made that determination, shortly after the conclu- ter made until January 1980. Malloy testified without sion of the "brown bag" lunch. Respondent insists that it contradiction that during the intervening period no man- would have taken the action it did, at the time it did, and agement representative criticized the quality of his work. for the reasons it did, whether or not Malloy had asked In early or mid-January of 1980, Petrov reviewed the the question and made the comments claimed by the work of his five-member coding team and found Malloy General Counsel to have been the cause of the discharge,. to be the least accurate member of the team. At that With the respective positions of the parties thus clari- time, Petrov directed Malloy's attention to the fact that fied, I now turn to a more detailed consideration of the he was making too many mistakes. At about that time, relevant facts as reflected by the evidence in this record Petrov also discussed Malloy's situation with his supervi- that I find credible. sors, Murray and Seville. A consensus was reached to give him a warning and put him on probation for a 2-or B. The Relevant Facts 3-week period to see whether there was any improve- 1. Malloy's work history.ment in his work. Toward that end, a formal review and 1. Malloy s work history,. -*i evaluation of Malloy's work was conducted on January Malloy was employed by Respondent from September 25, 1980. Malloy's performance was rated below average. 25, 1978, until his discharge on February 4, 1980, at its Petrov and Seville were instructed to give Malloy a Bethesda, Maryland, facility, where Respondent is en- "final warning." A followup was scheduled for February gaged in processing documents and performing related I.' work for the Nuclear Regulatory Commission. Except On Friday, February 1, Petrov again reviewed Mal- for a brief period when he was assigned to quality con- loy's work. Petrov, as appears from his testimony, found trol work, Malloy's job throughout his employment was that the coding forms which Malloy had most recently that of a coder; his function as such was to review docu- produced, but which he had not theretofore seen, were ments, extract certain data elements therefrom, and acceptable. Petrov also had a conversation with Malloy report them on a coding form. Malloy's immediate super- that day about Malloy's socializing on the job and visor during the last 3 months of his employment was Malloy assured him that he would "maintain a more pro- George Petrov. Above Petrov in the supervisory chain fessional attitude in the future." Petrov concluded that of command over Malloy were Barbara Murray, the data the warning and "stern talk" given Malloy had made an manager, and Michael Seville, the operations manager, in impression on Malloy, and that Malloy should be given a that order. As earlier noted, James A. Long, now also a further chance before any adverse action was taken vice president of Respondent, was the project manager against him. Accordingly, Petrov recommended to Se- and top management official at the Bethesda facility. ville, the facility's operations manager, that Malloy's pro- Respondent's evaluation records of Malloy, which are in evidence, support Respondent's contention that The January 25, 1980, evaluation report, in addition to referring to Malloy had a history of inconsistent and at times substan- the "poor quality" of Malloy's work, also states that his "attitude" was dard performance during the period Of his employment. presenting a "serious problem." The only specific evidence presented by On hi firs evalationin lae Janary 179, h was ated Respondent to support that assertion was Petrov's testimony that during On his first evaluation in late January 1979. he was rated that period he was also concerned about Malloy's excessive socializing on below average in productivity, average in attitude, and the job and the disruptive effect that this was having on the work of given a warning. About a week later, he was told he was other employees. TERA ADVANCED SERVICES CORPORATION 953 Malloy's conduct in that respect constituted protected being terminated because of low productivity, but that concerted activity; and that, consequently, Respondent's action was later rescinded when it was determined that discharge action must be ruled violative of Section the statistics relating to his productivity had been inaccu- 8(a)(l) and (3) of the Act. rately compiled. Several weeks later, his work was ree- Respondent does not dispute that Malloy asked the valuated and his performance was found to be accept- question and made the comments referred to above, but able. On May 15, 1979, he was rated average in all re- otherwise takes issue with the General Counsel's position spects and given a salary increase of $1,000 per annum. in all respects. According to Respondent, Malloy's ques- The May evaluation report notes that he had been tion and comments at the "brown bag" lunch played no moved to a quality control position because of the high role whatsoever in the discharge decision which was im- quality of encoding work he had demonstrated, and that plemented on February 5. Respondent asserts that its dis- he performed well in quality control. It appears that charge determination was based exclusively upon the fol- Malloy worked in quality control until September and lowing in combination: (1) Malloy's failure to sustain an then was transferred back to his previous position as a acceptable level of performance (along with related con- coder because due to an injury he was working only a siderations such as his poor attitude and excessive social- 25-hour week at that time and Respondent wanted a full- izing) during the period of his employment, and (2) his time employee in his quality control position. On July profane outburst before a female employee on the Friday 10, 1979, Malloy was rated below average in productiv- before his discharge when given a paycheck and a W-2 ity and attitude, and it was noted that his inconsistent form containing a wrong addreess, the details of which performance was again a problem; that he seemed to re- will be reported below. Respondent further asserts that spond to correcjve counseling, but only for short peri- its determination to fire Malloy at the time it did was ods, and that he occasionally demonstrated a negative at- sparked, not by Malloy's conduct at the "brown bag" titude. A followup review was scheduled for August, but lunch, but by the paycheck incident which, according to apparently was not conducted. So far as appears, no fur- Respondent, was first brought to the attention of Long, ther review or evaluation of Malloy's work was thereaf- who made that determination, shortly after the conclu- ter made until January 1980. Malloy testified without sion of the "brown bag" lunch. Respondent insists that it contradiction that during the intervening period no man- would have taken the action it did, at the time it did, and agement representative criticized the quality of his work. for the reasons it did, whether or not Malloy had asked In early or mid-January of 1980, Petrov reviewed the the question and made the comments claimed by the work of his five-member coding team and found Malloy General Counsel to have been the cause of the discharge,. to be the least accurate member of the team. At that With the respective positions of the parties thus clari- time, Petrov directed Malloy's attention to the fact that fied, I now turn to a more detailed consideration of the he was making too many mistakes. At about that time, relevant facts as reflected by the evidence in this record Petrov also discussed Malloy's situation with his supervi- that I find credible. sors, Murray and Seville. A consensus was reached to give him a warning and put him on probation for a 2-or B. The Relevant Facts 3-week period to see whether there was any improve- 1. Malloy's work history.ment in his work. Toward that end, a formal review and 1. Malloy s work history,. -*i evaluation of Malloy's work was conducted on January Malloy was employed by Respondent from September 25, 1980. Malloy's performance was rated below average. 25, 1978, until his discharge on February 4, 1980, at its Petrov and Seville were instructed to give Malloy a Bethesda, Maryland, facility, where Respondent is en- "final warning." A followup was scheduled for February gaged in processing documents and performing related I.' work for the Nuclear Regulatory Commission. Except On Friday, February 1, Petrov again reviewed Mal- for a brief period when he was assigned to quality con- loy's work. Petrov, as appears from his testimony, found trol work, Malloy's job throughout his employment was that the coding forms which Malloy had most recently that of a coder; his function as such was to review docu- produced, but which he had not theretofore seen, were ments, extract certain data elements therefrom, and acceptable. Petrov also had a conversation with Malloy report them on a coding form. Malloy's immediate super- that day about Malloy's socializing on the job and visor during the last 3 months of his employment was Malloy assured him that he would "maintain a more pro- George Petrov. Above Petrov in the supervisory chain fessional attitude in the future." Petrov concluded that of command over Malloy were Barbara Murray, the data the warning and "stern talk" given Malloy had made an manager, and Michael Seville, the operations manager, in impression on Malloy, and that Malloy should be given a that order. As earlier noted, James A. Long, now also a further chance before any adverse action was taken vice president of Respondent, was the project manager against him. Accordingly, Petrov recommended to Se- and top management official at the Bethesda facility. ville, the facility's operations manager, that Malloy's pro- Respondent's evaluation records of Malloy, which are in evidence, support Respondent's contention that The January 25, 1980, evaluation report, in addition to referring to Malloy had a history of inconsistent and at times substan- the "poor quality" of Malloy's work, also states that his "attitude" was dard performance during the period Of his employment. presenting a "serious problem." The only specific evidence presented by On hi firs evalationin lae Janary 179, h was ated Respondent to support that assertion was Petrov's testimony that during On his first evaluation in late January 1979. he was rated that period he was also concerned about Malloy's excessive socializing on below average in productivity, average in attitude, and the job and the disruptive effect that this was having on the work of given a warning. About a week later, he was told he was other employees. TERA ADVANCED SERVICES CORPORATION 953 Malloy's conduct in that respect constituted protected being terminated because of low productivity, but that concerted activity; and that, consequently, Respondent's action was later rescinded when it was determined that discharge action must be ruled violative of Section the statistics relating to his productivity had been inaccu- 8(a)(l) and (3) of the Act. rately compiled. Several weeks later, his work was ree- Respondent does not dispute that Malloy asked the valuated and his performance was found to be accept- question and made the comments referred to above, but able. On May 15, 1979, he was rated average in all re- otherwise takes issue with the General Counsel's position spects and given a salary increase of $1,000 per annum. in all respects. According to Respondent, Malloy's ques- The May evaluation report notes that he had been tion and comments at the "brown bag" lunch played no moved to a quality control position because of the high role whatsoever in the discharge decision which was im- quality of encoding work he had demonstrated, and that plemented on February 5. Respondent asserts that its dis- he performed well in quality control. It appears that charge determination was based exclusively upon the fol- Malloy worked in quality control until September and lowing in combination: (1) Malloy's failure to sustain an then was transferred back to his previous position as a acceptable level of performance (along with related con- coder because due to an injury he was working only a siderations such as his poor attitude and excessive social- 25-hour week at that time and Respondent wanted a full- izing) during the period of his employment, and (2) his time employee in his quality control position. On July profane outburst before a female employee on the Friday 10, 1979, Malloy was rated below average in productiv- before his discharge when given a paycheck and a W-2 ity and attitude, and it was noted that his inconsistent form containing a wrong addreess, the details of which performance was again a problem; that he seemed to re- will be reported below. Respondent further asserts that spond to correcjve counseling, but only for short peri- its determination to fire Malloy at the time it did was ods, and that he occasionally demonstrated a negative at- sparked, not by Malloy's conduct at the "brown bag" titude. A followup review was scheduled for August, but lunch, but by the paycheck incident which, according to apparently was not conducted. So far as appears, no fur- Respondent, was first brought to the attention of Long, ther review or evaluation of Malloy's work was thereaf- who made that determination, shortly after the conclu- ter made until January 1980. Malloy testified without sion of the "brown bag" lunch. Respondent insists that it contradiction that during the intervening period no man- would have taken the action it did, at the time it did, and agement representative criticized the quality of his work. for the reasons it did, whether or not Malloy had asked In early or mid-January of 1980, Petrov reviewed the the question and made the comments claimed by the work of his five-member coding team and found Malloy General Counsel to have been the cause of the discharge,. to be the least accurate member of the team. At that With the respective positions of the parties thus clari- time, Petrov directed Malloy's attention to the fact that fied, I now turn to a more detailed consideration of the he was making too many mistakes. At about that time, relevant facts as reflected by the evidence in this record Petrov also discussed Malloy's situation with his supervi- that I find credible. sors, Murray and Seville. A consensus was reached to give him a warning and put him on probation for a 2-or B. The Relevant Facts 3-week period to see whether there was any improve- 1. Malloy's work history.ment in his work. Toward that end, a formal review and 1. Malloy s work history,. -*i evaluation of Malloy's work was conducted on January Malloy was employed by Respondent from September 25, 1980. Malloy's performance was rated below average. 25, 1978, until his discharge on February 4, 1980, at its Petrov and Seville were instructed to give Malloy a Bethesda, Maryland, facility, where Respondent is en- "final warning." A followup was scheduled for February gaged in processing documents and performing related I.' work for the Nuclear Regulatory Commission. Except On Friday, February 1, Petrov again reviewed Mal- for a brief period when he was assigned to quality con- loy's work. Petrov, as appears from his testimony, found trol work, Malloy's job throughout his employment was that the coding forms which Malloy had most recently that of a coder; his function as such was to review docu- produced, but which he had not theretofore seen, were ments, extract certain data elements therefrom, and acceptable. Petrov also had a conversation with Malloy report them on a coding form. Malloy's immediate super- that day about Malloy's socializing on the job and visor during the last 3 months of his employment was Malloy assured him that he would "maintain a more pro- George Petrov. Above Petrov in the supervisory chain fessional attitude in the future." Petrov concluded that of command over Malloy were Barbara Murray, the data the warning and "stern talk" given Malloy had made an manager, and Michael Seville, the operations manager, in impression on Malloy, and that Malloy should be given a that order. As earlier noted, James A. Long, now also a further chance before any adverse action was taken vice president of Respondent, was the project manager against him. Accordingly, Petrov recommended to Se- and top management official at the Bethesda facility. ville, the facility's operations manager, that Malloy's pro- Respondent's evaluation records of Malloy, which are in evidence, support Respondent's contention that The January 25, 1980, evaluation report, in addition to referring to Malloy had a history of inconsistent and at times substan- the "poor quality" of Malloy's work, also states that his "attitude" was dard performance during the period Of his employment. presenting a "serious problem." The only specific evidence presented by On hi firs evalationin lae Janary 179, h was ated Respondent to support that assertion was Petrov's testimony that during On his first evaluation in late January 1979. he was rated that period he was also concerned about Malloy's excessive socializing on below average in productivity, average in attitude, and the job and the disruptive effect that this was having on the work of given a warning. About a week later, he was told he was other employees. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bationary period be extended and that no further action turn, reported the incident to Operations Manager Se- be taken against him at that time. Seville concurred, and ville who earlier that day had discussed Malloy's situa- approved Petrov's recommendation. 2 tion with Petrov and had approved Petrov's recommen- dation that no further action be taken against Malloy at 2. The paycheck incident that time and that his probationary period be extended. On Friday, February 1, Linda Robb distributed to the As appears from Murray's testimony, Seville, who had facility's employees their paychecks, along with their W- the authority to fire Malloy, simply expressed surprise 2 forms. Robb was then an assistant to Delores Denton that Malloy had given vent to an outburst of that kind. (Dee), the administrative manager of the facility's re- Apparently, he did not then consider the incident serious cords office where payroll and like personnel records are enough to warrant overturning his earlier approval of prepared and maintained. Robb delivered to Malloy his Petrov's recommendation. check and W-2 form shortly before noon that day. Mal- Respondent introduced into evidence a memorandum loy's W-2 form contained an address no longer applica- from Denton to Long calling the latter's attention to the ble to him. About 2 months before, Malloy had moved paycheck incident. The memorandum is dated February to a new address. He had twice requested Denton to 1, 1980. Long testified, however, that he did not actually have his address changed on Respondent's records, but see this memorandum or learn of the paycheck incident this had not been done. Malloy's back was to Robb when she laid his check until the afternoon of the following Monday, shortly and W-2 form on his desk. As Robb was turning to afterthe brown bag" lunch. Bywayof explanaton, he leave, Malloy picked up the envelope containing the W-2 testified that he was busy and behind closed doors all form, observed the wrong address, and blurted out in a Friday afternoon and might not have been in his office loud voice: "Those dumb fuckers up front, they never do during most of Monday morning. Denton, although still anything right. I ought to go up and kick Dee's ass."3 in the employ of Respondent at the time of the hearing, Robb testified that Malloy was looking down at the W-2 was not called as a witness by Respondent to corrobo- form and not at her when he made that exclamation. Ac- rate Long's testimony in this respect. There is no specific cording to Malloy, his exclamation was simply a sponta- evidence in the record, however, to impeach Long's tes- neous outburst of irritation and was not addressed to timony about when he learned of the paycheck incident. Robb or anyone else. Respondent offered no evidence I accept his testimony that he was not made aware of the that any employee other than Robb heard or reacted in paycheck incident until after the "brown bag" lunch. any way to Malloy's outburst. There is no indication in the record that Malloy was given to cursing on the job. 3. The "brown bag" lunch Malloy's testimony that, except on this one occasion, he On Monday, February 4, 1980, Malloy, along with ap- had never cursed in the office was not challenged by Re- proximately 25 other employees, attended a "brown bag" spondent at the hearing. lunch called by management at which Long spoke to the Robb testified that she was "shocked" by the language employees about Respondent's nationwide operations. Malloy had used as well as the tone of his voice. After Long completed his address in about half an hour and completing her distribution of paychecks, Robb reported then invited questions from the assembled employees the incident to Denton. Shortly thereafter, Denton came about anything they wanted to talk about. About 10 min- to Malloy's desk and angrily told him that she did not utes into the question period, Malloy asked, "What appreciate what he had said in Robb's presence and that would the management attitude be toward the formation she felt his language and behavior were uncalled for. of an employee union?" Long was visibly upset by the Shortly thereafter, Denton informed Barbara Murray question. He responded in substance that he saw no need about the paycheck episode, stating that if Malloy were for a union at TERA as the Company had always had an under her supervision she would fire him. Murray, in open door policy. Long indicated that he was curious about why the employees would want a union. Malloy ' Petrov testified that this was the first conversation he had with Se- th n re s c e p ville that morning. He further testified that no actual decision had earlier poted out that when annual salary reviews came up the been reached to fire Malloy. His testimony in these respects varied from employees would be in a position to bargain for in- that of Murray who testified that at a meeting that morning, which she, creases. Another employee, John Milligan, then raised a Seville, and Petrov attended, a decision was actually reached to fire question concerning the Company's policies about com- Malloy that that aPetrov r thad been directed to implement that deci pensatory time, and mentioned that this was another area sion; but that Petrov later that morning had "backed down" and decided to give Malloy a further chance. On cross-examination Murray agreed, where "union type" bargaining by the employees might however, that the "decision" asserted by her to have been made on be desirable. Malloy also commented further about the Friday morning was canceled out later that morning with the approval of desirability and advantages to employees of collective Seville who had the final say. Seville was not called by Respondent as a bargaining by describing how it operated at the Bricklay- witness. To the extent that Murray's testimony differs from that of Petrov, I credit the latter who impressed me by his overall testimony as a ers' Union where a friend of his worked.' more reliable witness. For like reasons, I do not credit Long's testimony that on Friday, February 1, he was informed by Seville that a decision, 'This finding is based on a synthesis of the testimony I find credible to be implemented by Petrov, had been made to fire Malloy that day, and given by Malloy, as a witness for the General Counsel, and by Long, that he had approved that decision. Linda Hillegas, and Olivia Nevins, as witnesses for Respondent. I do not I The quoted language is from Robb's testimony which I accept in that credit that portion of Long's testimony which states that he responded, in regard. Malloy's recollection of the words he used is somewhat different, part, that he would be happy to have the employees form a union if they but not significantly so. His version: "Jesus Christ. Those dumb fuckers wanted to. Long's testimony to that effect is not supported by the testi- in California. I told Dee to put the right address on this." mony of any of the other witnesses. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bationary period be extended and that no further action turn, reported the incident to Operations Manager Se- be taken against him at that time. Seville concurred, and ville who earlier that day had discussed Malloy's situa- approved Petrov's recommendation. 2 tion with Petrov and had approved Petrov's recommen- dation that no further action be taken against Malloy at 2. The paycheck incident that time and that his probationary period be extended. On Friday, February 1, Linda Robb distributed to the As appears from Murray's testimony, Seville, who had facility's employees their paychecks, along with their W- the authority to fire Malloy, simply expressed surprise 2 forms. Robb was then an assistant to Delores Denton that Malloy had given vent to an outburst of that kind. (Dee), the administrative manager of the facility's re- Apparently, he did not then consider the incident serious cords office where payroll and like personnel records are enough to warrant overturning his earlier approval of prepared and maintained. Robb delivered to Malloy his Petrov's recommendation. check and W-2 form shortly before noon that day. Mal- Respondent introduced into evidence a memorandum loy's W-2 form contained an address no longer applica- from Denton to Long calling the latter's attention to the ble to him. About 2 months before, Malloy had moved paycheck incident. The memorandum is dated February to a new address. He had twice requested Denton to 1, 1980. Long testified, however, that he did not actually have his address changed on Respondent's records, but see this memorandum or learn of the paycheck incident this hady~bSo Robb been done. laidhischeck u n t i l t h e afterno o n of the following Monday, shortly Malloy's back was to Robb when she laid his check atrte"rw a"lnh ywyo xlntoh and W-2 form on his desk. As Robb was turning to a ft er t h e b ro w n b'S l un c h. B y w ay o f ex p lan a t lo n' n leave, Malloy picked up the envelope containing the W-2 te stified that he was busy and behind closed doors all form, observed the wrong address, and blurted out in a Friday afternoon and might not have been in his office loud voice: "Those dumb fuckers up front, they never do during most of Monday morning. Denton, although still anything right. I ought to go up and kick Dee's ass." 3' in the employ of Respondent at the time of the hearing, Robb testified that Malloy was looking down at the W-2 was not called as a witness by Respondent to corrobo- form and not at her when he made that exclamation. Ac- rate Long's testimony in this respect. There is no specific cording to Malloy, his exclamation was simply a sponta- evidence in the record, however, to impeach Long's tes- neous outburst of irritation and was not addressed to timony about when he learned of the paycheck incident. Robb or anyone else. Respondent offered no evidence I accept his testimony that he was not made aware of the that any employee other than Robb heard or reacted in paycheck incident until after the "brown bag" lunch. any way to Malloy's outburst. There is no indication in the record that Malloy was given to cursing on the job. 3. The "brown bag" lunch Malloy's testimony that, except on this one occasion, he On Monday, February 4, 1980, Malloy, along with ap- had never cursed in the office was not challenged by Re- proximately 25 other employees, attended a "brown bag" spondent at the hearing. lunch called by management at which Long spoke to the Robb testified that she was "shocked" by the language employees about Respondent's nationwide operations. Malloy had used as well as the tone of his voice. After Long completed his address in about half an hour and completing her distribution of paychecks, Robb reported then invited questions from the assembled employees the incident to Denton. Shortly thereafter, Denton came about anything they wanted to talk about. About 10 min- to Malloy's desk and angrily told him that she did not utes into the question period, Malloy asked, "What appreciate what he had said in Robb's presence and that would the management attitude be toward the formation she felt his language and behavior were uncalled for. of an employee union?" Long was visibly upset by the Shortly thereafter, Denton informed Barbara Murray question. He responded in substance that he saw no need about the paycheck episode, stating that if Malloy were for a union at TERA as the Company had always had an under her supervision she would fire him. Murray, in open door policy. Long indicated that he was curious ------- ~~~~~~~~~~about why the employees would want a union. Malloy ' Petrov testified that this was the first conversation he had with Se- aboted out that when annual salary reviews came up the ville that morning. He further testified that no actual decision had earlier p o ta w a s ie c u t been reached to fire Malloy. His testimony in these respects varied from employees would be in a position to bargain for in- that of Murray who testified that at a meeting that morning, which she, creases. Another employee, John Milligan, then raised a Seville, and Petrov attended, a decision was actually reached to fire question concerning the Company's policies about com- Malloy that day, that Petrov had been directed to implement that deci- pensatory time, and mentioned that this was another area sion; but that Petrov later that morning had "backed down" and decided to give Malloy a further chance. On cross-examination Murray agreed, where "union type" bargaining by the employees might however, that the "decision" asserted by her to have been made on be desirable. Malloy also commented further about the Friday morning was canceled out later that morning with the approval of desirability and advantages to employees of collective Seville who had the Final say. Seville was not called by Respondent as a b ar gaining by describing how it operated at the Bricklay- witness. To the extent that Murray's testimony differs from that of Petrov, I credit the latter who impressed me by his overall testimony as a ers' Union where a friend Of his worked. 4 more reliable witness. For like reasons, I do not credit Long's testimony that on Friday, February 1, he was informed by Seville that a decision, This finding is based on a synthesis of the testimony I find credible to be implemented by Petrov, had been made to fire Malloy that day, and given by Malloy, as a witness for the General Counsel, and by Long, that he had approved that decision. Linda Hillegas, and Olivia Nevins, as witnesses for Respondent. I do not I The quoted language is from Robb's testimony which I accept in that credit that portion of Long's testimony which states that he responded, in regard. Malloy's recollection of the words he used is somewhat different, part, that he would be happy to have the employees form a union if they but not significantly so. His version: "Jesus Christ. Those dumb fuckers wanted to. Long's testimony to that effect is not supported by the testi- in California. I told Dee to put the right address on this." mony of any of the other witnesses. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bationary period be extended and that no further action turn, reported the incident to Operations Manager Se- be taken against him at that time. Seville concurred, and ville who earlier that day had discussed Malloy's situa- approved Petrov's recommendation. 2 tion with Petrov and had approved Petrov's recommen- dation that no further action be taken against Malloy at 2. The paycheck incident that time and that his probationary period be extended. On Friday, February 1, Linda Robb distributed to the As appears from Murray's testimony, Seville, who had facility's employees their paychecks, along with their W- the authority to fire Malloy, simply expressed surprise 2 forms. Robb was then an assistant to Delores Denton that Malloy had given vent to an outburst of that kind. (Dee), the administrative manager of the facility's re- Apparently, he did not then consider the incident serious cords office where payroll and like personnel records are enough to warrant overturning his earlier approval of prepared and maintained. Robb delivered to Malloy his Petrov's recommendation. check and W-2 form shortly before noon that day. Mal- Respondent introduced into evidence a memorandum loy's W-2 form contained an address no longer applica- from Denton to Long calling the latter's attention to the ble to him. About 2 months before, Malloy had moved paycheck incident. The memorandum is dated February to a new address. He had twice requested Denton to 1, 1980. Long testified, however, that he did not actually have his address changed on Respondent's records, but see this memorandum or learn of the paycheck incident this hady~bSo Robb been done. laidhischeck u n t i l the afternoon of the following Monday, shortly Malloy's back was to Robb when she laid his check atrte"rw a"lnh ywyo xlntoh and W-2 form on his desk. As Robb was turning to a ft er t h e b ro w n b^ l un c h. B y w ay o f ex p lan a t lo n' n leave, Malloy picked up the envelope containing the W-2 te stified that he was busy and behind closed doors all form, observed the wrong address, and blurted out in a Friday afternoon and might not have been in his office loud voice: "Those dumb fuckers up front, they never do during most of Monday morning. Denton, although still anything right. I ought to go up and kick Dee's ass." 3' in the employ of Respondent at the time of the hearing, Robb testified that Malloy was looking down at the W-2 was not called as a witness by Respondent to corrobo- form and not at her when he made that exclamation. Ac- rate Long's testimony in this respect. There is no specific cording to Malloy, his exclamation was simply a sponta- evidence in the record, however, to impeach Long's tes- neous outburst of irritation and was not addressed to timony about when he learned of the paycheck incident. Robb or anyone else. Respondent offered no evidence I accept his testimony that he was not made aware of the that any employee other than Robb heard or reacted in paycheck incident until after the "brown bag" lunch. any way to Malloy's outburst. There is no indication in the record that Malloy was given to cursing on the job. 3. The "brown bag" lunch Malloy's testimony that, except on this one occasion, he On Monday, February 4, 1980, Malloy, along with ap- had never cursed in the office was not challenged by Re- proximately 25 other employees, attended a "brown bag" spondent at the hearing. lunch called by management at which Long spoke to the Robb testified that she was "shocked" by the language employees about Respondent's nationwide operations. Malloy had used as well as the tone of his voice. After Long completed his address in about half an hour and completing her distribution of paychecks, Robb reported then invited questions from the assembled employees the incident to Denton. Shortly thereafter, Denton came about anything they wanted to talk about. About 10 min- to Malloy's desk and angrily told him that she did not utes into the question period, Malloy asked, "What appreciate what he had said in Robb's presence and that would the management attitude be toward the formation she felt his language and behavior were uncalled for. of an employee union?" Long was visibly upset by the Shortly thereafter, Denton informed Barbara Murray question. He responded in substance that he saw no need about the paycheck episode, stating that if Malloy were for a union at TERA as the Company had always had an under her supervision she would fire him. Murray, in open door policy. Long indicated that he was curious ------- ~~~~~~~~~~about why the employees would want a union. Malloy ' Petrov testified that this was the first conversation he had with Se- aboted out that when annual salary reviews came up the ville that morning. He further testified that no actual decision had earlier p o ta w a s ie c u t been reached to fire Malloy. His testimony in these respects varied from employees would be in a position to bargain for in- that of Murray who testified that at a meeting that morning, which she, creases. Another employee, John Milligan, then raised a Seville, and Petrov attended, a decision was actually reached to fire question concerning the Company's policies about com- Malloy that day, that Petrov had been directed to implement that deci- pensatory time, and mentioned that this was another area sion; but that Petrov later that morning had "backed down" and decided to give Malloy a further chance. On cross-examination Murray agreed, where "union type" bargaining by the employees might however, that the "decision" asserted by her to have been made on be desirable. Malloy also commented further about the Friday morning was canceled out later that morning with the approval of desirability and advantages to employees of collective Seville who had the Final say. Seville was not called by Respondent as a b ar gaining by describing how it operated at the Bricklay- witness. To the extent that Murray's testimony differs from that of Petrov, I credit the latter who impressed me by his overall testimony as a ers' Union where a friend Of his worked. 4 more reliable witness. For like reasons, I do not credit Long's testimony that on Friday, February 1, he was informed by Seville that a decision, This finding is based on a synthesis of the testimony I find credible to be implemented by Petrov, had been made to fire Malloy that day, and given by Malloy, as a witness for the General Counsel, and by Long, that he had approved that decision. Linda Hillegas, and Olivia Nevins, as witnesses for Respondent. I do not I The quoted language is from Robb's testimony which I accept in that credit that portion of Long's testimony which states that he responded, in regard. Malloy's recollection of the words he used is somewhat different, part, that he would be happy to have the employees form a union if they but not significantly so. His version: "Jesus Christ. Those dumb fuckers wanted to. Long's testimony to that effect is not supported by the testi- in California. I told Dee to put the right address on this." mony of any of the other witnesses. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bationary period be extended and that no further action turn, reported the incident to Operations Manager Se- be taken against him at that time. Seville concurred, and ville who earlier that day had discussed Malloy's situa- approved Petrov's recommendation. 2 tion with Petrov and had approved Petrov's recommen- dation that no further action be taken against Malloy at 2. The paycheck incident that time and that his probationary period be extended. On Friday, February 1, Linda Robb distributed to the As appears from Murray's testimony, Seville, who had facility's employees their paychecks, along with their W- the authority to fire Malloy, simply expressed surprise 2 forms. Robb was then an assistant to Delores Denton that Malloy had given vent to an outburst of that kind. (Dee), the administrative manager of the facility's re- Apparently, he did not then consider the incident serious cords office where payroll and like personnel records are enough to warrant overturning his earlier approval of prepared and maintained. Robb delivered to Malloy his Petrov's recommendation. check and W-2 form shortly before noon that day. Mal- Respondent introduced into evidence a memorandum loy's W-2 form contained an address no longer applica- from Denton to Long calling the latter's attention to the ble to him. About 2 months before, Malloy had moved paycheck incident. The memorandum is dated February to a new address. He had twice requested Denton to 1, 1980. Long testified, however, that he did not actually have his address changed on Respondent's records, but see this memorandum or learn of the paycheck incident this hady~bSo Robb been done. laidhischeck u n t i l the afternoon of the following Monday, shortly Malloy's back was to Robb when she laid his check atrte"rw a"lnh ywyo xlntoh and W-2 form on his desk. As Robb was turning to a ft er t h e b ro w n b^ l un c h. B y w ay o f ex p lan a t lo n' n leave, Malloy picked up the envelope containing the W-2 te stified that he was busy and behind closed doors all form, observed the wrong address, and blurted out in a Friday afternoon and might not have been in his office loud voice: "Those dumb fuckers up front, they never do during most of Monday morning. Denton, although still anything right. I ought to go up and kick Dee's ass." 3' in the employ of Respondent at the time of the hearing, Robb testified that Malloy was looking down at the W-2 was not called as a witness by Respondent to corrobo- form and not at her when he made that exclamation. Ac- rate Long's testimony in this respect. There is no specific cording to Malloy, his exclamation was simply a sponta- evidence in the record, however, to impeach Long's tes- neous outburst of irritation and was not addressed to timony about when he learned of the paycheck incident. Robb or anyone else. Respondent offered no evidence I accept his testimony that he was not made aware of the that any employee other than Robb heard or reacted in paycheck incident until after the "brown bag" lunch. any way to Malloy's outburst. There is no indication in the record that Malloy was given to cursing on the job. 3. The "brown bag" lunch Malloy's testimony that, except on this one occasion, he On Monday, February 4, 1980, Malloy, along with ap- had never cursed in the office was not challenged by Re- proximately 25 other employees, attended a "brown bag" spondent at the hearing. lunch called by management at which Long spoke to the Robb testified that she was "shocked" by the language employees about Respondent's nationwide operations. Malloy had used as well as the tone of his voice. After Long completed his address in about half an hour and completing her distribution of paychecks, Robb reported then invited questions from the assembled employees the incident to Denton. Shortly thereafter, Denton came about anything they wanted to talk about. About 10 min- to Malloy's desk and angrily told him that she did not utes into the question period, Malloy asked, "What appreciate what he had said in Robb's presence and that would the management attitude be toward the formation she felt his language and behavior were uncalled for. of an employee union?" Long was visibly upset by the Shortly thereafter, Denton informed Barbara Murray question. He responded in substance that he saw no need about the paycheck episode, stating that if Malloy were for a union at TERA as the Company had always had an under her supervision she would fire him. Murray, in open door policy. Long indicated that he was curious ------- ~~~~~~~~~~about why the employees would want a union. Malloy ' Petrov testified that this was the first conversation he had with Se- aboted out that when annual salary reviews came up the ville that morning. He further testified that no actual decision had earlier p o ta w a s ie c u t been reached to fire Malloy. His testimony in these respects varied from employees would be in a position to bargain for in- that of Murray who testified that at a meeting that morning, which she, creases. Another employee, John Milligan, then raised a Seville, and Petrov attended, a decision was actually reached to fire question concerning the Company's policies about com- Malloy that day, that Petrov had been directed to implement that deci- pensatory time, and mentioned that this was another area sion; but that Petrov later that morning had "backed down" and decided to give Malloy a further chance. On cross-examination Murray agreed, where "union type" bargaining by the employees might however, that the "decision" asserted by her to have been made on be desirable. Malloy also commented further about the Friday morning was canceled out later that morning with the approval of desirability and advantages to employees of collective Seville who had the Final say. Seville was not called by Respondent as a b ar gaining by describing how it operated at the Bricklay- witness. To the extent that Murray's testimony differs from that of Petrov, I credit the latter who impressed me by his overall testimony as a ers' Union where a friend Of his worked. 4 more reliable witness. For like reasons, I do not credit Long's testimony that on Friday, February 1, he was informed by Seville that a decision, This finding is based on a synthesis of the testimony I find credible to be implemented by Petrov, had been made to fire Malloy that day, and given by Malloy, as a witness for the General Counsel, and by Long, that he had approved that decision. Linda Hillegas, and Olivia Nevins, as witnesses for Respondent. I do not I The quoted language is from Robb's testimony which I accept in that credit that portion of Long's testimony which states that he responded, in regard. Malloy's recollection of the words he used is somewhat different, part, that he would be happy to have the employees form a union if they but not significantly so. His version: "Jesus Christ. Those dumb fuckers wanted to. Long's testimony to that effect is not supported by the testi- in California. I told Dee to put the right address on this." mony of any of the other witnesses. TERA ADVANCED SERVICES CORPORATION 955 4. Subsequent events same conversation as the one to which Wisdom made To support his claim that there was a causal relation- reference. ship between Malloy's question and comments at the Wisdom was a disinterested witness and her testimony lunch meeting and his discharge the following day, the did not impress me as contrived. Other testimony given General Counsel called Valda Wisdom as a witness. by Long also serves to lend credence to Wisdom's testi- Wisdom, at the time material herein, was employed by mony that Long made the statement she attributed to Respondent as a supervisor but was no longer with Re- him, reflecting his animosity toward Malloy for having spondent when the hearing was held, having several raised the subject of a union at the lunch meeting. Thus, months earlier voluntarily and on good terms quit Re- Long conceded that he was "upset" by Malloy's question spondent's employ to take a better job. Wisdom's desk at and comments at the meeting. And at various points in Respondent's office was located about 5 to 10 feet from his testimony he stated that he regarded Malloy's con- Delores Denton's. Wisdom testified that when she re- duct at the meeting as "disruptive," as "very aggressive," turned to her desk after the conclusion of the "brown and as having demonstrated a "poor attitude" and "hos- bag" lunch, she found Long, Seville, and Denton at tility" on Malloy's part toward Respondent. Denton's desk engaged in a conversation about what had For the reasons indicated above, I credit Wisdom's occurred at the meeting. That conversation, she testified, aforesaid account of what she heard Long say. In doing lasted about 10 minutes. This is her account of what she so, however, I bear in mind that Wisdom's account is on heard said: its face an abbreviated and condensed summary of a 10- minute conversation and may not detail everything that Mr. Long was upset about what was asked about was said. My finding, therefore, is not to be read as re- the unionizing at TERA and he said who the hell jecting Long's testimony that in the course of the con- does he think he is, asking to form a union at versation Denton directed his attention for the first time TERA. Then I heard Mike Seville say that, let to the paycheck incident, and it may well be that this them go ahead and have their union. They are too was done before Long said, "I have had it." small to unionize anyway. At that point I heard Jim The decision to discharge Malloy, although not effect- Long say, give me his file, his personnel file, give ed until the following day, was made by Long on the me Dan Malloy's personnel file. I have had it. I afternoon of February 4. On that afternoon, Long, ac- have had it. And Delores Denton said, fire him, fire cording to his testimony, told Seville that he had been him, fire him. informed of the paycheck incident; that he intended to discharge Malloy; and that he wanted the "final recom- Wisdom's aforesaid testimony stands on this record un- mendations" from Malloy's supervisors that had been contradicted. Seville and Denton were not called by Re- due Friday by the following morning. spondent as witnesses, although at the time of the hear- On Tuesday morning, February 5, Long summoned ing they were still in Respondent's employ and not Murray to his office. Long told Murray that he had de- shown to have been unavailable. In his testimony Long cided to discharge Malloy and that he needed a memo- did not specifically advert to Wisdom's testimony or randum from her. He asked her to write out everything deny making the statements she attributed to him.5 Long she knew about Malloy. Later that day Murray prepared did testify, however, that he had a conversation with Se- and submitted to Long a memorandum detailing the ville and Denton after the "brown bag" lunch meeting in problems which she asserted supervisors had had with which he expressed his resentment of the "hostility" which he expressed his resentment of the "hostility' Malloy, covering the full 15-month tenure of his employ- Malloy had shown at that meeting. It was during the ment, including the period prior to May 1979 when, the course of that conversation, according to Long, that record shows, Murray first became his supervisor. In her Denton asked him whether he had seen her memo or memo, Murray stated that Malloy's work performance heard about the Friday paycheck incident, and, when he had been inconsistent and "generally unacceptable" in said he had not, had apprised him for the first time of quality; that he had a "sloppy handwriting," that on oc- that incident. Although Long fixed the time of his con- casions he had abused comp time and other privileges; versation with Denton and Seville as "sometime in the and that he had engaged in excessive socializing that had first hour or maybe a little bit longer" after the conclu- a disruptive impact on the work of other employees. sion of the lunch meeting, I am satisfied that it was the Murray's memo then went on to point out that Petrov, after seeing some "slight improvement" in Malloy's work 'Respondent did through other witnesses attempt to refute Wisdom's af ter seeing some "slight impr ovement" in Malloys work testimony, but I find the testimony given by these witnesses to be of in- the preceding Friday, given Malloy his very sufficient probative force to undermine Wisdom's credibility. Linda Hille- last chance to improve his attitude and unacceptable gas, whose desk was adjacent to Wisdom's, testified that after the "brown work habits," but that Malloy later that day had engaged bag" lunch she returned to her desk with Wisdom, but did not at that point "hear" any conversation taking place at Denton's desk. Linda Robb, whoe desk was also close to Wisdom's, testified that she could Considering the nature of the conversation, even as related by Long, not "recall" hearing Long engage in any discussion at Denton's desk on I believe it more likely that it took place very shortly after the lunch February 4, 1980. Little weight can be attached to the testimony of these meeting, as testified by Wisdom, rather than at the time stated by Long. witnesses. They may have been on the phone or absorbed in other work My belief in that regard is buttressed by the following quotation from at the time, or they may not have paid attention to what was going on at Responden's opening statement: Denton's desk for other reasons. Or if they did hear it, the subject may Mr. Long came out of the meeting and he said what's happened on have been of insufficient interest to them to retain a recollection of it the probationary aspect of Mr. Malloy? He really had a bad attitude over the 8-month period that elapsed between the date of that occurrence at the meeting. Whereupon one of the supervisors said, did you hear and the date of hearing. what happened Friday. He's got to go. TERA ADVANCED SERVICES CORPORATION 955 4. Subsequent events same conversation as the one to which Wisdom made To support his claim that there was a causal relation- r e fe r e n c e. ship between Malloy's question and comments at the Wisdom was a disinterested witness and her testimony lunch meeting and his discharge the following day, the did not impress me as contrived. Other testimony given General Counsel called Valda Wisdom as a witness. by Long also serves to lend credence to Wisdom's testi- Wisdom, at the time material herein, was employed by mony that Long made the statement she attributed to Respondent as a supervisor but was no longer with Re- him, reflecting his animosity toward Malloy for having spondent when the hearing was held, having several raised the subject of a union at the lunch meeting. Thus, months earlier voluntarily and on good terms quit Re- Long conceded that he was "upset" by Malloy's question spondent's employ to take a better job. Wisdom's desk at and comments at the meeting. And at various points in Respondent's office was located about 5 to 10 feet from his testimony he stated that he regarded Malloy's con- Delores Denton's. Wisdom testified that when she re- duct at the meeting as "disruptive," as "very aggressive," turned to her desk after the conclusion of the "brown and as having demonstrated a "poor attitude" and "hos- bag" lunch, she found Long, Seville, and Denton at tility" on Malloy's part toward Respondent. Denton's desk engaged in a conversation about what had For the reasons indicated above, I credit Wisdom's occurred at the meeting. That conversation, she testified, aforesaid account of what she heard Long say. In doing lasted about 10 minutes. This is her account of what she so, however, I bear in mind that Wisdom's account is on heard said: its face an abbreviated and condensed summary of a 10- minute conversation and may not detail everything that Mr. Long was upset about what was asked about was said. My finding, therefore, is not to be read as re- the unionizing at TERA and he said who the hell jecting Long's testimony that in the course of the con- does he think he is, asking to form a union at versation Denton directed his attention for the first time TERA. Then I heard Mike Seville say that, let to the paycheck incident, and it may well be that this them go ahead and have their union. They are too was done before Long said, "I have had it." small to unionize anyway. At that point I heard Jim The decision to discharge Malloy, although not effect- Long say, give me his file, his personnel file, give ed until the following day, was made by Long on the me Dan Malloy's personnel file. I have had it. I afternoon of February 4. On that afternoon, Long, ac- have had it. And Delores Denton said, fire him, fire cording to his testimony, told Seville that he had been him, fire him. informed of the paycheck incident; that he intended to discharge Malloy; and that he wanted the "final recom- Wisdom's aforesaid testimony stands on this record un- mendations" from Malloy's supervisors that had been contradicted. Seville and Denton were not called by Re- due Friday by the following morning. spondent as witnesses, although at the time of the hear- On Tuesda y morning, February 5. Long summoned ing they were still in Respondent's employ and not Murray to his office. Long told Murray that he had de- shown to have been unavailable. In his testimony Long cided to discharge Malloy and that he needed a memo- did not specifically advert to Wisdom's testimony or r f h H a h t w everything deny making the statements she attributed to him.5 Long sh ke a M l L t d M did testify, however, that he had a conversation with Se- a submitted to Long a memorandum detailing the ville and Denton after the "brown bag" lunch meeting in problems which she asserted supervisors had had with which he expressed his resentment of the "hosfil, y ^ ^ ^ ^1.^ , whic he xpresed is rsenmentof te "hstilty" Malloy, covering the full 15-month tenure of his employ- Malloy had shown at that meeting. It was during the ment, including the period prior to May 1979 when, the course of that conversation, according to Long, that record shows, Murray first became his supervisor. In her Denton asked him whether he had seen her memo or m M s t M o w performance heard about the Friday p a y check incident, an d , w h e n h e had been inconsistent and "generally unacceptable" in said he had not, had apprised him for the first time of quality; that he had a "sloppy handwriting," that on oc- that incident. Although Long fixed the time of his con- casions he had abused comp time and other privileges; versation with Denton and Seville as "sometime in the a t h h ea in es that had first hour or maybe a little bit longer" after the conclu- a disruptive impact on the work of other employees. sion of the lunch meeting, I am satisfied that it was the Murray's memo then went on to point out that Petrov, -" ----- ,~~~~~~~~~~after seeing some "slight improvement" in Malloy's work Respondent did through other witnesses attempt to refute Wisdom's after seeing some "slight impr ve n Malloy' . s work testimony, but I find the testimony given by these witnesses to be of in- h ad , on the preceding Friday, given Malloy his very sufficicent probative force to undermine Wisdom's credibility. Linda Hille- last chance to improve his attitude and Unacceptable gas, whose desk was adjacent to Wisdom's, testified that after the "brown work habits," but that Malloy later that day had engaged bag" lunch she returned to her desk with Wisdom, but did not at that point "hear" any conversation taking place at Denton's desk. Linda Robb, whose desk was also close to Wisdom's, testified that she could Considering the nature of the conversation, even as related by Long, not "recall" hearing Long engage in any discussion at Denton's desk on I believe it more likely that it took place very shortly after the lunch February 4, 1980. Little weight can be attached to the testimony of thewe meeting, as testified by Wisdom, rather than at the time stated by Long. witnesses. They may have been on the phone or absorbed in other work My belief in that regard is buttressed by the following quotation from at the time, or they may not have paid attention to what was going on at Respondent's opening statement: Denton's desk for other reasons. Or if they did hear it, the subject may Mr. Long came out of the meeting and he said what's happened on have been of insufficient interest to them to retain a recollection of it the probationary aspect of Mr. Malloy? He really had a bad attitude over the 8-month period that elapsed between the date of that occurrence at the meeting. Whereupon one of the supervisors said, did you hear and the date of hearing,.what happened Friday. He's got to go. TERA ADVANCED SERVICES CORPORATION 955 4. Subsequent events same conversation as the one to which Wisdom made To support his claim that there was a causal relation- r e fe r e n c e. ship between Malloy's question and comments at the Wisdom was a disinterested witness and her testimony lunch meeting and his discharge the following day, the did not impress me as contrived. Other testimony given General Counsel called Valda Wisdom as a witness. by Long also serves to lend credence to Wisdom's testi- Wisdom, at the time material herein, was employed by mony that Long made the statement she attributed to Respondent as a supervisor but was no longer with Re- him, reflecting his animosity toward Malloy for having spondent when the hearing was held, having several raised the subject of a union at the lunch meeting. Thus, months earlier voluntarily and on good terms quit Re- Long conceded that he was "upset" by Malloy's question spondent's employ to take a better job. Wisdom's desk at and comments at the meeting. And at various points in Respondent's office was located about 5 to 10 feet from his testimony he stated that he regarded Malloy's con- Delores Denton's. Wisdom testified that when she re- duct at the meeting as "disruptive," as "very aggressive," turned to her desk after the conclusion of the "brown and as having demonstrated a "poor attitude" and "hos- bag" lunch, she found Long, Seville, and Denton at tility" on Malloy's part toward Respondent. Denton's desk engaged in a conversation about what had For the reasons indicated above, I credit Wisdom's occurred at the meeting. That conversation, she testified, aforesaid account of what she heard Long say. In doing lasted about 10 minutes. This is her account of what she so, however, I bear in mind that Wisdom's account is on heard said: its face an abbreviated and condensed summary of a 10- minute conversation and may not detail everything that Mr. Long was upset about what was asked about was said. My finding, therefore, is not to be read as re- the unionizing at TERA and he said who the hell jecting Long's testimony that in the course of the con- does he think he is, asking to form a union at versation Denton directed his attention for the first time TERA. Then I heard Mike Seville say that, let to the paycheck incident, and it may well be that this them go ahead and have their union. They are too was done before Long said, "I have had it." small to unionize anyway. At that point I heard Jim The decision to discharge Malloy, although not effect- Long say, give me his file, his personnel file, give ed until the following day, was made by Long on the me Dan Malloy's personnel file. I have had it. I afternoon of February 4. On that afternoon, Long, ac- have had it. And Delores Denton said, fire him, fire cording to his testimony, told Seville that he had been him, fire him. informed of the paycheck incident; that he intended to discharge Malloy; and that he wanted the "final recom- Wisdom's aforesaid testimony stands on this record un- mendations" from Malloy's supervisors that had been contradicted. Seville and Denton were not called by Re- due Friday by the following morning. spondent as witnesses, although at the time of the hear- On Tuesda y morning, February 5. Long summoned ing they were still in Respondent's employ and not Murray to his office. Long told Murray that he had de- shown to have been unavailable. In his testimony Long cided to discharge Malloy and that he needed a memo- did not specifically advert to Wisdom's testimony or r f h H a h t w everything deny making the statements she attributed to him.5 Long sh ke a M l L t d M did testify, however, that he had a conversation with Se- a submitted to Long a memorandum detailing the ville and Denton after the "brown bag" lunch meeting in problems which she asserted supervisors had had with which he expressed his resentment of the "hosfh iy ^ ^ ^ ^1.^ , whic he xpresed is rsenmentof te "hstilty" Malloy, covering the full 15-month tenure of his employ- Malloy had shown at that meeting. It was during the ment, including the period prior to May 1979 when, the course of that conversation, according to Long, that record shows, Murray first became his supervisor. In her Denton asked him whether he had seen her memo or m M s t M o w performance heard about the Friday p a y c h eck incident, an d , w h e n h e had been inconsistent and "generally unacceptable" in said he had not, had apprised him for the first time of quality; that he had a "sloppy handwriting," that on oc- that incident. Although Long fixed the time of his con- casions he had abused comp time and other privileges; versation with Denton and Seville as "sometime in the a t h h ea in es that had first hour or maybe a little bit longer" after the conclu- a disruptive impact on the work of other employees. sion of the lunch meeting, I am satisfied that it was the Murray's memo then went on to point out that Petrov, -" ----- ,~~~~~~~~~~after seeing some "slight improvement" in Malloy's work Respondent did through other witnesses attempt to refute Wisdom's after seeing some "slight impr ve n Malloy' . s work testimony, but I find the testimony given by these witnesses to be of in- h ad , on t h e preceding Friday, given Malloy his very sufficient probative force to undermine Wisdom's credibility. Linda Hille- last chance to improve his attitude and Unacceptable gas, whose desk was adjacent to Wisdom's, testified that after the "brown work habits," but that Malloy later that day had engaged bag" lunch she returned to her desk with Wisdom, but did not at that point "hear" any conversation taking place at Denton's desk. Linda Robb, whose desk was also close to Wisdom's, testified that she could Considering the nature of the conversation, even as related by Long, not "recall" hearing Long engage in any discussion at Denton's desk on I believe it more likely that it took place very shortly after the lunch February 4, 1980. Little weight can be attached to the testimony of thewe meeting, as testified by Wisdom, rather than at the time stated by Long. witnesses. They may have been on the phone or absorbed in other work My belief in that regard is buttressed by the following quotation from at the time, or they may not have paid attention to what was going on at Respondent's opening statement: Denton's desk for other reasons. Or if they did hear it, the subject may Mr. Long came out of the meeting and he said what's happened on have been of insufficient interest to them to retain a recollection of it the probationary aspect of Mr. Malloy? He really had a bad attitude over the 8-month period that elapsed between the date of that occurrence at the meeting. Whereupon one of the supervisors said, did you hear and the date of hearing,.what happened Friday. He's got to go. TERA ADVANCED SERVICES CORPORATION 955 4. Subsequent events same conversation as the one to which Wisdom made To support his claim that there was a causal relation- r e fe r e n c e. ship between Malloy's question and comments at the Wisdom was a disinterested witness and her testimony lunch meeting and his discharge the following day, the did not impress me as contrived. Other testimony given General Counsel called Valda Wisdom as a witness. by Long also serves to lend credence to Wisdom's testi- Wisdom, at the time material herein, was employed by mony that Long made the statement she attributed to Respondent as a supervisor but was no longer with Re- him, reflecting his animosity toward Malloy for having spondent when the hearing was held, having several raised the subject of a union at the lunch meeting. Thus, months earlier voluntarily and on good terms quit Re- Long conceded that he was "upset" by Malloy's question spondent's employ to take a better job. Wisdom's desk at and comments at the meeting. And at various points in Respondent's office was located about 5 to 10 feet from his testimony he stated that he regarded Malloy's con- Delores Denton's. Wisdom testified that when she re- duct at the meeting as "disruptive," as "very aggressive," turned to her desk after the conclusion of the "brown and as having demonstrated a "poor attitude" and "hos- bag" lunch, she found Long, Seville, and Denton at tility" on Malloy's part toward Respondent. Denton's desk engaged in a conversation about what had For the reasons indicated above, I credit Wisdom's occurred at the meeting. That conversation, she testified, aforesaid account of what she heard Long say. In doing lasted about 10 minutes. This is her account of what she so, however, I bear in mind that Wisdom's account is on heard said: its face an abbreviated and condensed summary of a 10- minute conversation and may not detail everything that Mr. Long was upset about what was asked about was said. My finding, therefore, is not to be read as re- the unionizing at TERA and he said who the hell jecting Long's testimony that in the course of the con- does he think he is, asking to form a union at versation Denton directed his attention for the first time TERA. Then I heard Mike Seville say that, let to the paycheck incident, and it may well be that this them go ahead and have their union. They are too was done before Long said, "I have had it." small to unionize anyway. At that point I heard Jim The decision to discharge Malloy, although not effect- Long say, give me his file, his personnel file, give ed until the following day, was made by Long on the me Dan Malloy's personnel file. I have had it. I afternoon of February 4. On that afternoon, Long, ac- have had it. And Delores Denton said, fire him, fire cording to his testimony, told Seville that he had been him, fire him. informed of the paycheck incident; that he intended to discharge Malloy; and that he wanted the "final recom- Wisdom's aforesaid testimony stands on this record un- mendations" from Malloy's supervisors that had been contradicted. Seville and Denton were not called by Re- due Friday by the following morning. spondent as witnesses, although at the time of the hear- On Tuesda y morning, February 5. Long summoned ing they were still in Respondent's employ and not Murray to his office. Long told Murray that he had de- shown to have been unavailable. In his testimony Long cided to discharge Malloy and that he needed a memo- did not specifically advert to Wisdom's testimony or r f h H a h t w everything deny making the statements she attributed to him.5 Long sh ke a M l L t d M did testify, however, that he had a conversation with Se- a submitted to Long a memorandum detailing the ville and Denton after the "brown bag" lunch meeting in problems which she asserted supervisors had had with which he expressed his resentment of the "hosfh iy ^ ^ ^ ^1.^ , whic he xpresed is rsenmentof te "hstilty" Malloy, covering the full 15-month tenure of his employ- Malloy had shown at that meeting. It was during the ment, including the period prior to May 1979 when, the course of that conversation, according to Long, that record shows, Murray first became his supervisor. In her Denton asked him whether he had seen her memo or m M s t M o w performance heard about the Friday p a y c h eck incident, and, when h e had been inconsistent and "generally unacceptable" in said he had not, had apprised him for the first time of quality; that he had a "sloppy handwriting," that on oc- that incident. Although Long fixed the time of his con- casions he had abused comp time and other privileges; versation with Denton and Seville as "sometime in the a t h h ea in es that had first hour or maybe a little bit longer" after the conclu- a disruptive impact on the work of other employees. sion of the lunch meeting, I am satisfied that it was the Murray's memo then went on to point out that Petrov, -" ----- ,~~~~~~~~~~after seeing some "slight improvement" in Malloy's work Respondent did through other witnesses attempt to refute Wisdom's after seeing some "slight impr ve n Malloy' . s work testimony, but I find the testimony given by these witnesses to be of in- h ad , on t h e preceding Friday, given Malloy his very sufficient probative force to undermine Wisdom's credibility. Linda Hille- last chance to improve his attitude and Unacceptable gas, whose desk was adjacent to Wisdom's, testified that after the "brown work habits," but that Malloy later that day had engaged bag" lunch she returned to her desk with Wisdom, but did not at that point "hear" any conversation taking place at Denton's desk. Linda Robb, whose desk was also close to Wisdom's, testified that she could Considering the nature of the conversation, even as related by Long, not "recall" hearing Long engage in any discussion at Denton's desk on I believe it more likely that it took place very shortly after the lunch February 4, 1980. Little weight can be attached to the testimony of thewe meeting, as testified by Wisdom, rather than at the time stated by Long. witnesses. They may have been on the phone or absorbed in other work My belief in that regard is buttressed by the following quotation from at the time, or they may not have paid attention to what was going on at Respondent's opening statement: Denton's desk for other reasons. Or if they did hear it, the subject may Mr. Long came out of the meeting and he said what's happened on have been of insufficient interest to them to retain a recollection of it the probationary aspect of Mr. Malloy? He really had a bad attitude over the 8-month period that elapsed between the date of that occurrence at the meeting. Whereupon one of the supervisors said, did you hear and the date of hearing,.what happened Friday. He's got to go. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the paycheck incident. Murray wound up her memo 5. The discharge by stating that in her belief, Malloy during his 15 At the close of business on Tuesday, February 5, months' employment had been given every opportunity months' employment had been given every opportunity Malloy was summoned to Long's office. Seville was also to improve, but had failed. Although Murray's memoran- there at the tme Lng nfor M that h w dum was requested by Long and written by her on Feb- being discharged for poor performance; a bad attitude; ruary 5, it was predated February 4. The reason for this and "disruptive" conduct. The specifications given him was not explained. The memo, as dated, would have were essentially those which Murray had supplied Long made it appear that it was requested by Long and writ- in her memorandum that day. The payroll incident was ten prior to Malloy's question and comments at the among the reasons cited by Long as having contributed "brown bag" lunch. to his discharge decision. Even though Malloy denied Petrov, who had been absent on Monday, was also this to be so, Long repeatedly stressed that Malloy summoned to Long's office on Tuesday morning, Febru- appear to have a "hostile" attitude toward Respondent. ary 5, and asked by Long to submit his recommendation. When Malloy remarked that he felt he was really being Malloy was aware that Petrov had been called to Long's fired because of what he had said about a union at the office that morning and had spent considerable time with "brown bag" lunch, Seville, as appears from Malloy's him. As Petrov was leaving for lunch that day, Malloy credited testimony, brushed his remark aside with the followed him to the elevator bank and, as appears from comment, "Oh, we know this was just a joke."8 Malloy's Malloy's undisputed and credited testimony, had the fol- discharge was made effective immediately although he lowing conversation with him: was told he would be paid to the end of the week. I said to him, I imagine by now that you have 6. Long's testimony relating to his reasons for the heard what I said at the meeting yesterday. He said, discharge yes, I have. That was most unfortunate, and I said, Before turning to an analysis of the facts of this case, well what is going to happen. He said, they hey have th following items of testimony given by Long, and not decided to lower the boom. I said, but surely they previously reported, should be noted. can't for just expressing my right of free speech. He Long testified that his determination to discharge said, well there's a lot of reasons. It's that, it's poor Malloy was based exclusively on Malloy's past inconsist- work, there was an incident where you cursed, you ent performance and "poor attitude" as an employee, abused compensatory time. I tried to make brief ob- coupled with the paycheck incident. Malloy's question jection to these things, but as I say, the elevator and comments at the "brown bag" lunch, Long further came. testified, had no impact at all on his discharge decision, which, he added, would have been the same even if Later that day, Petrov submitted his memorandum to there had been no "brown bag" lunch meeting. Long. In it Petrov stated that Malloy had received two Long also testified in the end, although he had given warnings from him, one several weeks before about the variable and inconsistent testimony on this point as a quality of his work, and the other the preceding Friday 611(c) witness, that had the paycheck incident not oc- about excessive socializing. He pointed out that since the curred, he would not have disturbed the recommenda- time of his first warning Malloy's work had improved to tion made by Petrov and approved by Seville on Friday, the point of being acceptable, and that Malloy had re- February 1, to extend Malloy's probationary period, and sponded favorably to his second warning by promising that Malloy would have remained in Respondent's "that he would maintain a more professional demeanor in employ until the next time he stepped out of line or his the future." Petrov concluded his memorandum with the productivity again went down. following statement: Long further testified that when he learned of Mal- loy's cursing episode he decided that that was "the last Since his current work does meet my standards of bit of disruptive conduct" he was going to tolerate from accuracy and-in the past few days anyhow-he Malloy. Long made no claim that Malloy had ever has not been a disruptive influence, I would suggest cursed or engaged in similar conduct before. But, he ex- that he has a point in maintaining that dismissal at plained, he considered Malloy's outburst "disruptive" be- this time is not justified. cause it had occurred "in the presence of a young lady" and in the operations area. Long had had no prior occa- At Respondent's facility, the recommendation of an em- sion to deal with that type of conduct because it had ployee's immediate supervisor is ordinarily given sub- never occurred before. Had it been "a first time incident stantial weight in determining whether an employee of a good employee," testified Long, he would have should be discharged. Petrov's recommendation, howev- simply warned the employee not to do it again, but in er, did not alter the determination which Long had earli- the case of Malloy he regarded it as "the last straw" be- er reached to discharge Malloy.7 cause of Malloy's past inconsistent performance and other problems Respondent had had with him during the 15-month tenure of his employment. Long testified that he was surprised by Petrov's memo because when he met with him earlier that day Petrov had agreed that Malloy should ' Long's testimony that it was Malloy, not Seville, who said he was be discharged. joking at the "brown bag" lunch is not credited. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the paycheck incident. Murray wound up her memo 5. The discharge by stating that in her belief, Malloy during his 15 * At h e obin on Tueday F months' employment had been given every opportunity A h l s f b~ l e s ° ^ eray5 months' employmen had beengiveneveryopportunity Malloy was summoned to Long's office. Seville was also to improve, but had failed. Although Murray's memoran- t a t Lo informed Malloy that he was dum was requested by Long and written by her on Feb- being discharged for poor performance; a bad attitude; ruary 5, it was predated February 4. The reason for this and "disruptive" conduct. The specifications given him was not explained. The memo, as dated, would have were essentially those which Murray had supplied Long made it appear that it was requested by Long and writ- in her memorandum that day. The payroll incident was ten prior to Malloy's question and comments at the among the reasons cited by Long as having contributed "brown bag" lunch. to his discharge decision. Even though Malloy denied Petrov, who had been absent on Monday, was also this to be so, Long repeatedly stressed that Malloy summoned to Long's office on Tuesday morning, Febru- appear to have a "hostile" attitude toward Respondent. ary 5, and asked by Long to submit his recommendation. When Malloy remarked that he felt he was really being Malloy was aware that Petrov had been called to Long's fired because of what he had said about a union at the office that morning and had spent considerable time with "brown bag" lunch, Seville, as appears from Malloy's him. As Petrov was leaving for lunch that day, Malloy credited testimony, brushed his remark aside with the followed him to the elevator bank and, as appears from comment, "Oh, we know this was just a joke."" Malloy's Malloy's undisputed and credited testimony, had the fol- discharge was made effective immediately although he lowing conversation with him: was told he would be paid to the end of the week. I said to him, I imagine by now that you have 6. Long's testimony relating to his reasons for the heard what I said at the meeting yesterday. He said, discharge yes, I have. That was most unfortunate, and I said, Before turning to an analysis of the facts of this case, well what is going to happen. He said, they have the following items of testimony given by Long, and not decided to lower the boom. I said, but surely they previously reported, should be noted. can't for just expressing my right of free speech. He Long testified that his determination to discharge said, well there's a lot of reasons. It's that, it's poor Malloy was based exclusively on Malloy's past inconsist- work, there was an incident where you cursed, you ent performance and "poor attitude" as an employee, abused compensatory time. I tried to make brief ob- coupled with the paycheck incident. Malloy's question jection to these things, but as I say, the elevator and comments at the "brown bag" lunch, Long further came. testified, had no impact at all on his discharge decision, which, he added, would have been the same even if Later that day, Petrov submitted his memorandum to there had been no "brown bag" lunch meeting. Long. In it Petrov stated that Malloy had received two Long also testified in the end, although he had given warnings from him, one several weeks before about the variable and inconsistent testimony on this point as a quality of his work, and the other the preceding Friday 611(c) witness, that had the paycheck incident not oc- about excessive socializing. He pointed out that since the curred, he would not have disturbed the recommenda- time of his first warning Malloy's work had improved to tion made by Petrov and approved by Seville on Friday, the point of being acceptable, and that Malloy had re- February 1, to extend Malloy's probationary period, and sponded favorably to his second warning by promising that Malloy would have remained in Respondent's "that he would maintain a more professional demeanor in employ until the next time he stepped out of line or his the future." Petrov concluded his memorandum with the productivity again went down. following statement: Long further testified that when he learned of Mal- loy's cursing episode he decided that that was "the last Since his current work does meet my standards of bit of disruptive conduct" he was going to tolerate from accuracy and-in the past few days anyhow-he Malloy. Long made no claim that Malloy had ever has not been a disruptive influence, I would suggest cursed or engaged in similar conduct before. But, he ex- that he has a point in maintaining that dismissal at plained, he considered Malloy's outburst "disruptive" be- this time is not justified. cause it had occurred "in the presence of a young lady" and in the operations area. Long had had no prior occa- At Respondent's facility, the recommendation of an em- sion to deal with that type of conduct because it had ployee's immediate supervisor is ordinarily given sub- never occurred before. Had it been "a first time incident stantial weight in determining whether an employee of a good employee," testified Long, he would have should be discharged. Petrov's recommendation, howev- simply warned the employee not to do it again, but in er, did not alter the determination which Long had earli- t h e c a se o f Malloy he regarded it as "the last straw" be- er reached to discharge Malloy. 7' c a u se o f Malloy's past inconsistent performance and other problems Respondent had had with him during the 15-month tenure of his employment. Long testified that he was surprised by Petrov's memo because when he met with him earlier that day Petrov had agreed that Malloy should Long's testimony that it was Malloy, not Seville, who said he was be discharged. joking at the "brown bag" lunch is not credited. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the paycheck incident. Murray wound up her memo 5. The discharge by stating that in her belief, Malloy during his 15 * At h e obin on Tueday F months' employment had been given every opportunity A h l s f b~ l e s ° ^ eray5 months' employmen had beengiveneveryopportunity Malloy was summoned to Long's office. Seville was also to improve, but had failed. Although Murray's memoran- t a t Lo informed Malloy that he was dum was requested by Long and written by her on Feb- being discharged for poor performance; a bad attitude; ruary 5, it was predated February 4. The reason for this and "disruptive" conduct. The specifications given him was not explained. The memo, as dated, would have were essentially those which Murray had supplied Long made it appear that it was requested by Long and writ- in her memorandum that day. The payroll incident was ten prior to Malloy's question and comments at the among the reasons cited by Long as having contributed "brown bag" lunch. to his discharge decision. Even though Malloy denied Petrov, who had been absent on Monday, was also this to be so, Long repeatedly stressed that Malloy summoned to Long's office on Tuesday morning, Febru- appear to have a "hostile" attitude toward Respondent. ary 5, and asked by Long to submit his recommendation. When Malloy remarked that he felt he was really being Malloy was aware that Petrov had been called to Long's fired because of what he had said about a union at the office that morning and had spent considerable time with "brown bag" lunch, Seville, as appears from Malloy's him. As Petrov was leaving for lunch that day, Malloy credited testimony, brushed his remark aside with the followed him to the elevator bank and, as appears from comment, "Oh, we know this was just a joke."" Malloy's Malloy's undisputed and credited testimony, had the fol- discharge was made effective immediately although he lowing conversation with him: was told he would be paid to the end of the week. I said to him, I imagine by now that you have 6. Long's testimony relating to his reasons for the heard what I said at the meeting yesterday. He said, discharge yes, I have. That was most unfortunate, and I said, Before turning to an analysis of the facts of this case, well what is going to happen. He said, they have the following items of testimony given by Long, and not decided to lower the boom. I said, but surely they previously reported, should be noted. can't for just expressing my right of free speech. He Long testified that his determination to discharge said, well there's a lot of reasons. It's that, it's poor Malloy was based exclusively on Malloy's past inconsist- work, there was an incident where you cursed, you ent performance and "poor attitude" as an employee, abused compensatory time. I tried to make brief ob- coupled with the paycheck incident. Malloy's question jection to these things, but as I say, the elevator and comments at the "brown bag" lunch, Long further came. testified, had no impact at all on his discharge decision, which, he added, would have been the same even if Later that day, Petrov submitted his memorandum to there had been no "brown bag" lunch meeting. Long. In it Petrov stated that Malloy had received two Long also testified in the end, although he had given warnings from him, one several weeks before about the variable and inconsistent testimony on this point as a quality of his work, and the other the preceding Friday 611(c) witness, that had the paycheck incident not oc- about excessive socializing. He pointed out that since the curred, he would not have disturbed the recommenda- time of his first warning Malloy's work had improved to tion made by Petrov and approved by Seville on Friday, the point of being acceptable, and that Malloy had re- February 1, to extend Malloy's probationary period, and sponded favorably to his second warning by promising that Malloy would have remained in Respondent's "that he would maintain a more professional demeanor in employ until the next time he stepped out of line or his the future." Petrov concluded his memorandum with the productivity again went down. following statement: Long further testified that when he learned of Mal- loy's cursing episode he decided that that was "the last Since his current work does meet my standards of bit of disruptive conduct" he was going to tolerate from accuracy and-in the past few days anyhow-he Malloy. Long made no claim that Malloy had ever has not been a disruptive influence, I would suggest cursed or engaged in similar conduct before. But, he ex- that he has a point in maintaining that dismissal at plained, he considered Malloy's outburst "disruptive" be- this time is not justified. cause it had occurred "in the presence of a young lady" and in the operations area. Long had had no prior occa- At Respondent's facility, the recommendation of an em- sion to deal with that type of conduct because it had ployee's immediate supervisor is ordinarily given sub- never occurred before. Had it been "a first time incident stantial weight in determining whether an employee of a good employee," testified Long, he would have should be discharged. Petrov's recommendation, howev- simply warned the employee not to do it again, but in er, did not alter the determination which Long had earli- t h e c a se o f Malloy he regarded it as "the last straw" be- er reached to discharge Malloy. 7' c a u se o f Malloy's past inconsistent performance and other problems Respondent had had with him during the 15-month tenure of his employment. Long testified that he was surprised by Petrov's memo because when he met with him earlier that day Petrov had agreed that Malloy should Long's testimony that it was Malloy, not Seville, who said he was be discharged. joking at the "brown bag" lunch is not credited. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the paycheck incident. Murray wound up her memo 5. The discharge by stating that in her belief, Malloy during his 15 * At h e obin on Tueday F months' employment had been given every opportunity A h l s f b~ l e s ° ^ eray5 months' employmen had beengiveneveryopportunity Malloy was summoned to Long's office. Seville was also to improve, but had failed. Although Murray's memoran- t a t Lo informed Malloy that he was dum was requested by Long and written by her on Feb- being discharged for poor performance; a bad attitude; ruary 5, it was predated February 4. The reason for this and "disruptive" conduct. The specifications given him was not explained. The memo, as dated, would have were essentially those which Murray had supplied Long made it appear that it was requested by Long and writ- in her memorandum that day. The payroll incident was ten prior to Malloy's question and comments at the among the reasons cited by Long as having contributed "brown bag" lunch. to his discharge decision. Even though Malloy denied Petrov, who had been absent on Monday, was also this to be so, Long repeatedly stressed that Malloy summoned to Long's office on Tuesday morning, Febru- appear to have a "hostile" attitude toward Respondent. ary 5, and asked by Long to submit his recommendation. When Malloy remarked that he felt he was really being Malloy was aware that Petrov had been called to Long's fired because of what he had said about a union at the office that morning and had spent considerable time with "brown bag" lunch, Seville, as appears from Malloy's him. As Petrov was leaving for lunch that day, Malloy credited testimony, brushed his remark aside with the followed him to the elevator bank and, as appears from comment, "Oh, we know this was just a joke."" Malloy's Malloy's undisputed and credited testimony, had the fol- discharge was made effective immediately although he lowing conversation with him: was told he would be paid to the end of the week. I said to him, I imagine by now that you have 6. Long's testimony relating to his reasons for the heard what I said at the meeting yesterday. He said, discharge yes, I have. That was most unfortunate, and I said, Before turning to an analysis of the facts of this case, well what is going to happen. He said, they have the following items of testimony given by Long, and not decided to lower the boom. I said, but surely they previously reported, should be noted. can't for just expressing my right of free speech. He Long testified that his determination to discharge said, well there's a lot of reasons. It's that, it's poor Malloy was based exclusively on Malloy's past inconsist- work, there was an incident where you cursed, you ent performance and "poor attitude" as an employee, abused compensatory time. I tried to make brief ob- coupled with the paycheck incident. Malloy's question jection to these things, but as I say, the elevator and comments at the "brown bag" lunch, Long further came. testified, had no impact at all on his discharge decision, which, he added, would have been the same even if Later that day, Petrov submitted his memorandum to there had been no "brown bag" lunch meeting. Long. In it Petrov stated that Malloy had received two Long also testified in the end, although he had given warnings from him, one several weeks before about the variable and inconsistent testimony on this point as a quality of his work, and the other the preceding Friday 611(c) witness, that had the paycheck incident not oc- about excessive socializing. He pointed out that since the curred, he would not have disturbed the recommenda- time of his first warning Malloy's work had improved to tion made by Petrov and approved by Seville on Friday, the point of being acceptable, and that Malloy had re- February 1, to extend Malloy's probationary period, and sponded favorably to his second warning by promising that Malloy would have remained in Respondent's "that he would maintain a more professional demeanor in employ until the next time he stepped out of line or his the future." Petrov concluded his memorandum with the productivity again went down. following statement: Long further testified that when he learned of Mal- loy's cursing episode he decided that that was "the last Since his current work does meet my standards of bit of disruptive conduct" he was going to tolerate from accuracy and-in the past few days anyhow-he Malloy. Long made no claim that Malloy had ever has not been a disruptive influence, I would suggest cursed or engaged in similar conduct before. But, he ex- that he has a point in maintaining that dismissal at plained, he considered Malloy's outburst "disruptive" be- this time is not justified. cause it had occurred "in the presence of a young lady" and in the operations area. Long had had no prior occa- At Respondent's facility, the recommendation of an em- sion to deal with that type of conduct because it had ployee's immediate supervisor is ordinarily given sub- never occurred before. Had it been "a first time incident stantial weight in determining whether an employee of a good employee," testified Long, he would have should be discharged. Petrov's recommendation, howev- simply warned the employee not to do it again, but in er, did not alter the determination which Long had earli- t h e c a se o f Malloy he regarded it as "the last straw" be- er reached to discharge Malloy. 7' c a u se o f Malloy's past inconsistent performance and other problems Respondent had had with him during the 15-month tenure of his employment. Long testified that he was surprised by Petrov's memo because when he met with him earlier that day Petrov had agreed that Malloy should Long's testimony that it was Malloy, not Seville, who said he was be discharged. joking at the "brown bag" lunch is not credited. TERA ADVANCED SERVICES CORPORATION 957 The validity and weight to be given to Long's testimo- meeting, "Who the hell does he think he is, asking to ny in the foregoing respects will be dealt with in the start a union at TERA"; and (4) Petrov's remark to next section of this Decision. Malloy at about noon on February 5, that it was "most unfortunate" that Malloy had said what he had at the C. Analysis and Concluding Findings "brown bag" lunch, together with his ensuing statement, The initial question in this case is whether Malloy en- in explanation of his remark, that Long had decided to gaged in activity protected by the Act at the "brown "lower the boom" on Malloy for that among other rea- bag" luncheon by his questioning of Long as to how sons, including the paycheck incident. management would react to the formation of a union and The question remains, however, whether Respondent his subsequent comments about the desirability and ad- has sustained the evidentiary burden placed on it under vantages to employees of collective bargaining. Malloy's the Wright Line causation test of demonstrating that it question and comments, which were obviously intended would have discharged Malloy even in the absence of for the ears, not only of Long, but of the assembled em- Malloy's protected activity. Although I confess that this ployees, not only indicated that he supported the idea of aspect of the case has been a troublesome one for me, I forming a union for the purpose of collective bargaining have after long and careful consideration come to the with Respondent, but in effect proposed to the employ- conclusion that an affirmative answer to the question ees that they give consideration to that idea as a means posed above is justified by the evidence in this case-and of furthering their mutual interests. There can be little this for the reasons to be stated below. doubt that Malloy's question and comments constituted The record shows that at the time of his discharge, protected activity within the meaning of Section 7 of the and for a substantial period preceding it, Malloy had Act, which, inter alia, gives employees the right "to self- been regarded by Respondent as a marginal employee. organization, to form . . labor organizations . .. and to As shown by the findings made above, throughout the engage in other activities for the purpose of collective period of his employment Malloy had a record of incon- bargaining and other mutual aid and protection." The sistent and often substandard performance. Respondent right to "self-organization" and to "form" labor organi- also had problems with Malloy's job behavior, such as zations quite clearly encompasses the right to propose or his tendency to engage in excessive socializing that had a suggest such self-organization or formation. And, as disruptive effect on the work of other employees. Sever- stated in Owen-Corning Fiberglass Corporation v. al weeks before his discharge, Malloy had been warned N.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969): about the poor quality of his work and had been placed on probation for a 2- or 3-week period. During the last The activity of a single employee in enlisting the week of January 1980, serious consideration had been support of his fellow employees for their mutual aid given by his supervisors to terminating him at the end of and protection is as much "concerted activity" as is that week. However, on Friday morning, February 1, ordinary group activity. The one seldom exists Petrov had observed an improvement in the quality of without the other. Malloy's most recent work and, with the approval of Se- I find accordingly. ville, had extended his probationary period indefinitely. That brings me to the issue of whether there was a However, Petrov found it necessary that day to warn causal relationship between Malloy's protected activity, Malloy about his excessive socializing, which had grown as found above, and his discharge the following day. The out of hand, and had also cautioned him about the im- respective positions of the parties have been fully set portance of maintaining a good job attitude. At that forth in the introductory subsection of this Decision and time, Malloy promised that he would "maintain a more need not now be repeated. I shall consider this issue in professional demeanor in the future." the light of the Board's causation test as set out in Wright Malloy's paycheck outburst occurred about 2 hours or Line, a Division of Wright Line, Inc., 251 NLRB 1083 so after his conversation with Petrov that same Friday. (1980). The hostile and obscene language Malloy used in the There can be little doubt from the record in this case presence of Robb in expressing his irritation with Denton that the General Counsel has made out a prima facie and her staff over the error on his W-2 form cannot in showing sufficient to support an inference that Malloy's this case be lightly brushed aside as a trivial matter. Mal- protected activity at the "brown bag" lunch was a moti- loy's own testimony shows that Denton, the administra- vating factor in Respondent's decision to discharge him. tive manager at the facility, was infuriated by the pro- Such an inference may fairly be drawn from the factual fane and hateful language he had used in the presence of findings made above showing: (1) the close timing of the Robb, and regarded it as serious misconduct on his part. discharge in relationship to Malloy's protected activity; Denton, not only complained about Malloy's conduct to (2) Long's admission at the hearing that he was "upset" Murray, to whom she expressed her opinion that Malloy by Malloy's question and comments at the "brown bag" should be fired for it, but also prepared a written com- lunch and that he regarded Malloy's conduct at the plaint about the incident addressed to Long. meeting as "aggressive" and as having manifested a In light of the foregoing facts, I believe that Long, "poor attitude" and "hostility" toward Respondent; (3) when made aware of the paycheck incident the follow- Long's evident animus toward Malloy for having raised ing Monday, could honestly have viewed Malloy's pro- the question of a union at the meeting, as reflected by his fane and abusive outburst not only as giving Respondent irate declaration to Denton and Seville shortly after the proper cause for disciplinary action, but also as a "last TERA ADVANCED SERVICES CORPORATION 957 The validity and weight to be given to Long's testimo- meeting, "Who the hell does he think he is, asking to ny in the foregoing respects will be dealt with in the start a union at TERA"; and (4) Petrov's remark to next section of this Decision. Malloy at about noon on February 5, that it was "most unfortunate" that Malloy had said what he had at the C. Analysis and Concluding Findings "brown bag" lunch, together with his ensuing statement, The initial question in this case is whether Malloy en- in explanation of his remark, that Long had decided to gaged in activity protected by the Act at the "brown "lower the boom" on Malloy for that among other rea- bag" luncheon by his questioning of Long as to how s o n s" including the paycheck incident. management would react to the formation of a union and The question remains, however, whether Respondent his subsequent comments about the desirability and ad- has sustained the evidentiary burden placed on it under vantages to employees of collective bargaining. Malloy's the Wright Line causation test of demonstrating that it question and comments, which were obviously intended would have discharged Malloy even in the absence of for the ears, not only of Long, but of the assembled em- Malloy's protected activity. Although I confess that this ployees, not only indicated that he supported the idea of aspect of the case has been a troublesome one for me, I forming a union for the purpose of collective bargaining have after long and careful consideration come to the with Respondent, but in effect proposed to the employ- conclusion that an affirmative answer to the question ees that they give consideration to that idea as a means posed above is justified by the evidence in this case-and of furthering their mutual interests. There can be little this for the reasons to be stated below. doubt that Malloy's question and comments constituted The record shows that at the time of his discharge, protected activity within the meaning of Section 7 of the and for a substantial period preceding it, Malloy had Act, which, inter alia, gives employees the right "to self- been regarded by Respondent as a marginal employee. organization, to form . . . labor organizations . . . and to As shown by the findings made above, throughout the engage in other activities for the purpose of collective period of his employment Malloy had a record of incon- bargaining and other mutual aid and protection." The sistent and often substandard performance. Respondent right to "self-organization" and to "form" labor organi- also had problems with Malloy's job behavior, such as zations quite clearly encompasses the right to propose or his tendency to engage in excessive socializing that had a suggest such self-organization or formation. And, as disruptive effect on the work of other employees. Sever- stated in Owen-Coming Fiberglass Corporation v. al weeks before his discharge, Malloy had been warned N.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969): about the poor quality of his work and had been placed on probation for a 2- or 3-week period. During the last The activity of a single employee in enlisting the week of January 1980, serious consideration had been support of his fellow employees for their mutual aid given by his supervisors to terminating him at the end of and protection is as much "concerted activity" as is that week. However, on Friday morning, February 1, ordinary group activity. The one seldom exists Petrov had observed an improvement in the quality of without the other. Malloy's most recent work and, with the approval of Se- I find accordingly. ville, had extended his probationary period indefinitely. That brings me to the issue of whether there was a However, Petrov found it necessary that day to warn causal relationship between Malloy's protected activity, Malloy about his excessive socializing, which had grown as found above, and his discharge the following day. The o u t o f h a n d , a n d h a d a l so cautioned him about the im- respective positions of the parties have been fully set portance of maintaining a good job attitude. At that forth in the introductory subsection of this Decision and ti m e, Malloy promised that he would "maintain a more need not now be repeated. I shall consider this issue in professional demeanor in the future." the light of the Board's causation test as set out in Wright Malloy's paycheck outburst occurred about 2 hours or Line, a Division of Wright Line, Inc., 251 NLRB 1083 so after his conversation with Petrov that same Friday. (1980). The hostile and obscene language Malloy used in the There can be little doubt from the record in this case presence of Robb in expressing his irritation with Denton that the General Counsel has made out a prima facie and her staff over the error on his W-2 form cannot in showing sufficient to support an inference that Malloy's this case be lightly brushed aside as a trivial matter. Mal- protected activity at the "brown bag" lunch was a moti- loy's own testimony shows that Denton, the administra- vating factor in Respondent's decision to discharge him. tive manager at the facility, was infuriated by the pro- Such an inference may fairly be drawn from the factual fane and hateful language he had used in the presence of findings made above showing: (1) the close timing of the Robb, and regarded it as serious misconduct on his part. discharge in relationship to Malloy's protected activity; Denton, not only complained about Malloy's conduct to (2) Long's admission at the hearing that he was "upset" Murray, to whom she expressed her opinion that Malloy by Malloy's question and comments at the "brown bag" should be fired for it, but also prepared a written com- lunch and that he regarded Malloy's conduct at the plaint about the incident addressed to Long. meeting as "aggressive" and as having manifested a In light of the foregoing facts, I believe that Long, "poor attitude" and "hostility" toward Respondent; (3) when made aware of the paycheck incident the follow- Long's evident animus toward Malloy for having raised ing Monday, could honestly have viewed Malloy's pro- the question of a union at the meeting, as reflected by his fane and abusive outburst not only as giving Respondent irate declaration to Denton and Seville shortly after the proper cause for disciplinary action, but also as a "last TERA ADVANCED SERVICES CORPORATION 957 The validity and weight to be given to Long's testimo- meeting, "Who the hell does he think he is, asking to ny in the foregoing respects will be dealt with in the start a union at TERA"; and (4) Petrov's remark to next section of this Decision. Malloy at about noon on February 5, that it was "most unfortunate" that Malloy had said what he had at the C. Analysis and Concluding Findings "brown bag" lunch, together with his ensuing statement, The initial question in this case is whether Malloy en- in explanation of his remark, that Long had decided to gaged in activity protected by the Act at the "brown "lower the boom" on Malloy for that among other rea- bag" luncheon by his questioning of Long as to how s o n s" including the paycheck incident. management would react to the formation of a union and The question remains, however, whether Respondent his subsequent comments about the desirability and ad- has sustained the evidentiary burden placed on it under vantages to employees of collective bargaining. Malloy's the Wright Line causation test of demonstrating that it question and comments, which were obviously intended would have discharged Malloy even in the absence of for the ears, not only of Long, but of the assembled em- Malloy's protected activity. Although I confess that this ployees, not only indicated that he supported the idea of aspect of the case has been a troublesome one for me, I forming a union for the purpose of collective bargaining have after long and careful consideration come to the with Respondent, but in effect proposed to the employ- conclusion that an affirmative answer to the question ees that they give consideration to that idea as a means posed above is justified by the evidence in this case-and of furthering their mutual interests. There can be little this for the reasons to be stated below. doubt that Malloy's question and comments constituted The record shows that at the time of his discharge, protected activity within the meaning of Section 7 of the and for a substantial period preceding it, Malloy had Act, which, inter alia, gives employees the right "to self- been regarded by Respondent as a marginal employee. organization, to form . . . labor organizations . . . and to As shown by the findings made above, throughout the engage in other activities for the purpose of collective period of his employment Malloy had a record of incon- bargaining and other mutual aid and protection." The sistent and often substandard performance. Respondent right to "self-organization" and to "form" labor organi- also had problems with Malloy's job behavior, such as zations quite clearly encompasses the right to propose or his tendency to engage in excessive socializing that had a suggest such self-organization or formation. And, as disruptive effect on the work of other employees. Sever- stated in Owen-Coming Fiberglass Corporation v. al weeks before his discharge, Malloy had been warned N.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969): about the poor quality of his work and had been placed on probation for a 2- or 3-week period. During the last The activity of a single employee in enlisting the week of January 1980, serious consideration had been support of his fellow employees for their mutual aid given by his supervisors to terminating him at the end of and protection is as much "concerted activity" as is that week. However, on Friday morning, February 1, ordinary group activity. The one seldom exists Petrov had observed an improvement in the quality of without the other. Malloy's most recent work and, with the approval of Se- I find accordingly. ville, had extended his probationary period indefinitely. That brings me to the issue of whether there was a However, Petrov found it necessary that day to warn causal relationship between Malloy's protected activity, Malloy about his excessive socializing, which had grown as found above, and his discharge the following day. The o u t o f h a n d , a n d h a d a l so cautioned him about the im- respective positions of the parties have been fully set portance of maintaining a good job attitude. At that forth in the introductory subsection of this Decision and ti m e, Malloy promised that he would "maintain a more need not now be repeated. I shall consider this issue in professional demeanor in the future." the light of the Board's causation test as set out in Wright Malloy's paycheck outburst occurred about 2 hours or Line, a Division of Wright Line, Inc., 251 NLRB 1083 so after his conversation with Petrov that same Friday. (1980). The hostile and obscene language Malloy used in the There can be little doubt from the record in this case presence of Robb in expressing his irritation with Denton that the General Counsel has made out a prima facie and her staff over the error on his W-2 form cannot in showing sufficient to support an inference that Malloy's this case be lightly brushed aside as a trivial matter. Mal- protected activity at the "brown bag" lunch was a moti- loy's own testimony shows that Denton, the administra- vating factor in Respondent's decision to discharge him. tive manager at the facility, was infuriated by the pro- Such an inference may fairly be drawn from the factual fane and hateful language he had used in the presence of findings made above showing: (1) the close timing of the Robb, and regarded it as serious misconduct on his part. discharge in relationship to Malloy's protected activity; Denton, not only complained about Malloy's conduct to (2) Long's admission at the hearing that he was "upset" Murray, to whom she expressed her opinion that Malloy by Malloy's question and comments at the "brown bag" should be fired for it, but also prepared a written com- lunch and that he regarded Malloy's conduct at the plaint about the incident addressed to Long. meeting as "aggressive" and as having manifested a In light of the foregoing facts, I believe that Long, "poor attitude" and "hostility" toward Respondent; (3) when made aware of the paycheck incident the follow- Long's evident animus toward Malloy for having raised ing Monday, could honestly have viewed Malloy's pro- the question of a union at the meeting, as reflected by his fane and abusive outburst not only as giving Respondent irate declaration to Denton and Seville shortly after the proper cause for disciplinary action, but also as a "last TERA ADVANCED SERVICES CORPORATION 957 The validity and weight to be given to Long's testimo- meeting, "Who the hell does he think he is, asking to ny in the foregoing respects will be dealt with in the start a union at TERA"; and (4) Petrov's remark to next section of this Decision. Malloy at about noon on February 5, that it was "most unfortunate" that Malloy had said what he had at the C. Analysis and Concluding Findings "brown bag" lunch, together with his ensuing statement, The initial question in this case is whether Malloy en- in explanation of his remark, that Long had decided to gaged in activity protected by the Act at the "brown "lower the boom" on Malloy for that among other rea- bag" luncheon by his questioning of Long as to how s o n s" including the paycheck incident. management would react to the formation of a union and The question remains, however, whether Respondent his subsequent comments about the desirability and ad- has sustained the evidentiary burden placed on it under vantages to employees of collective bargaining. Malloy's the Wright Line causation test of demonstrating that it question and comments, which were obviously intended would have discharged Malloy even in the absence of for the ears, not only of Long, but of the assembled em- Malloy's protected activity. Although I confess that this ployees, not only indicated that he supported the idea of aspect of the case has been a troublesome one for me, I forming a union for the purpose of collective bargaining have after long and careful consideration come to the with Respondent, but in effect proposed to the employ- conclusion that an affirmative answer to the question ees that they give consideration to that idea as a means posed above is justified by the evidence in this case-and of furthering their mutual interests. There can be little this for the reasons to be stated below. doubt that Malloy's question and comments constituted The record shows that at the time of his discharge, protected activity within the meaning of Section 7 of the and for a substantial period preceding it, Malloy had Act, which, inter alia, gives employees the right "to self- been regarded by Respondent as a marginal employee. organization, to form . . . labor organizations . . . and to As shown by the findings made above, throughout the engage in other activities for the purpose of collective period of his employment Malloy had a record of incon- bargaining and other mutual aid and protection." The sistent and often substandard performance. Respondent right to "self-organization" and to "form" labor organi- also had problems with Malloy's job behavior, such as zations quite clearly encompasses the right to propose or his tendency to engage in excessive socializing that had a suggest such self-organization or formation. And, as disruptive effect on the work of other employees. Sever- stated in Owen-Coming Fiberglass Corporation v. al weeks before his discharge, Malloy had been warned N.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969): about the poor quality of his work and had been placed on probation for a 2- or 3-week period. During the last The activity of a single employee in enlisting the week of January 1980, serious consideration had been support of his fellow employees for their mutual aid given by his supervisors to terminating him at the end of and protection is as much "concerted activity" as is that week. However, on Friday morning, February 1, ordinary group activity. The one seldom exists Petrov had observed an improvement in the quality of without the other. Malloy's most recent work and, with the approval of Se- I find accordingly. ville, had extended his probationary period indefinitely. That brings me to the issue of whether there was a However, Petrov found it necessary that day to warn causal relationship between Malloy's protected activity, Malloy about his excessive socializing, which had grown as found above, and his discharge the following day. The o u t o f h a n d , a n d h a d a l so cautioned him about the im- respective positions of the parties have been fully set portance of maintaining a good job attitude. At that forth in the introductory subsection of this Decision and ti m e, Malloy promised that he would "maintain a more need not now be repeated. I shall consider this issue in professional demeanor in the future." the light of the Board's causation test as set out in Wright Malloy's paycheck outburst occurred about 2 hours or Line, a Division of Wright Line, Inc., 251 NLRB 1083 so after his conversation with Petrov that same Friday. (1980). The hostile and obscene language Malloy used in the There can be little doubt from the record in this case presence of Robb in expressing his irritation with Denton that the General Counsel has made out a prima facie and her staff over the error on his W-2 form cannot in showing sufficient to support an inference that Malloy's this case be lightly brushed aside as a trivial matter. Mal- protected activity at the "brown bag" lunch was a moti- loy's own testimony shows that Denton, the administra- vating factor in Respondent's decision to discharge him. tive manager at the facility, was infuriated by the pro- Such an inference may fairly be drawn from the factual fane and hateful language he had used in the presence of findings made above showing: (1) the close timing of the Robb, and regarded it as serious misconduct on his part. discharge in relationship to Malloy's protected activity; Denton, not only complained about Malloy's conduct to (2) Long's admission at the hearing that he was "upset" Murray, to whom she expressed her opinion that Malloy by Malloy's question and comments at the "brown bag" should be fired for it, but also prepared a written com- lunch and that he regarded Malloy's conduct at the plaint about the incident addressed to Long. meeting as "aggressive" and as having manifested a In light of the foregoing facts, I believe that Long, "poor attitude" and "hostility" toward Respondent; (3) when made aware of the paycheck incident the follow- Long's evident animus toward Malloy for having raised ing Monday, could honestly have viewed Malloy's pro- the question of a union at the meeting, as reflected by his fane and abusive outburst not only as giving Respondent irate declaration to Denton and Seville shortly after the proper cause for disciplinary action, but also as a "last 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straw" warranting discharge action, when considered in have discharged Malloy at the time it did and for the le- conjunction with Malloy's probationary status, failure to gitimate reasons it asserts it did even in the absence of sustain an acceptable level of performance, and other his union activities. problems Respondent had had with him as an employee. It follows, as I read the Board's Wright Line causation In these circumstances, I am unable to regard Long's dis- test, that Malloy's discharge must be found to be nondis- charge decision as so devoid of legitimate business justifi- criminatory even though, as the evidence in this record cation as to negate the plausibility of his testimony that shows, Long was displeased with Malloy's questions and he would have discharged Malloy upon learning of the comments at the "brown bag" lunch found above to con- paycheck incident even if there had been no "brown stitute protected activity and may for that reason also bag" lunch. Accordingly, I credit Long's testimony in have welcomed Malloy's discharge. (See Mr. Healthy that respect, and on the basis of his testimony and the City School District Board of Education, 429 U.S. 274, 285 evidentiary support for it in this record, I find that Re- (1977), and the quotation therefrom in Wright Line, supra spondent has successfully demonstrated that it would at 1086.) For the reasons stated above, I conclude and find that I The record does show, to be sure, that on Friday when Murray re- the General Counsel has failed to satisfy the ultimate ported to Seville Denton's complaint about Malloy's cursing conduct in burden imposed on him of establishing the complaint's the presence of a member of her staff, Seville merely expressed surprise unfair labor practices allegations by a preponderance of and apparently did not then regard Malloy's behavior as a matter of seri- the evidence (Wright Line, supra fn. ). Accordingly, I ous enough consequence to reverse his earlier approval that day of Pe- trov's recommendation that no action be taken at that time against shall recommend dismissal of the complaint. Malloy and that Malloy's probationary period be extended indefinitely. This is an item of evidence that has given me some pause in the conclu- CONCLUSIONS OF LAW sion I reach here, since it may be construed as an indication that Long would have similarly evaluated Malloy's cursing conduct were it not for 1. Respondent is engaged in commerce within the Malloy's intervening protected activity. However, I do not think such an meaning of Section 2(6) and (7) of the Act. inference is reasonably warranted for two reasons: First, Long was Se- ville's superior and, therefore, not bound by his judgment. Second, Se- 2. Respondent has not, as alleged in the complaint, en- ville and Denton each headed separate staffs at Respondent's facility, Se- gaged in unfair labor practices within the meaning of ville the operations staff, and Denton the administrative staff. As project Section 8(a)(1) and (3) of the Act. manager, Long could be expected to have a greater sense of obligation to correct grievances emanating from the administrative staff, as well as to [ecommended Order for dismissal omitted from pub- support the recommendation of the manager of that staff. lication.] 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straw" warranting discharge action, when considered in have discharged Malloy at the time it did and for the le- conjunction with Malloy's probationary status, failure to gitimate reasons it asserts it did even in the absence of sustain an acceptable level of performance, and other his union activities. problems Respondent had had with him as an employee." It follows, as I read the Board's Wright Line causation In these circumstances, I am unable to regard Long's dis- test, that Malloy's discharge must be found to be nondis- charge decision as so devoid of legitimate business justifi- criminatory even though, as the evidence in this record cation as to negate the plausibility of his testimony that shows, Long was displeased with Malloy's questions and he would have discharged Malloy upon learning of the comments at the "brown bag" lunch found above to con- paycheck incident even if there had been no "brown stitute protected activity and may for that reason also bag" lunch. Accordingly, I credit Long's testimony in have welcomed Malloy's discharge. (See Mt. Healthy that respect, and on the basis of his testimony and the City School District Board of Education, 429 U.S. 274, 285 evidentiary support for it in this record, I find that Re- (1977), and the quotation therefrom in Wright Line, supra spondent has successfully demonstrated that it would a t 1086.) For the reasons stated above, I conclude and find that I The record does show, to be sure, that on Friday when Murray re- t he General Counsel has failed to satisfy the Ultimate ported to Seville Denton's complaint about Malloy's cursing conduct in burden imposed on him of establishing the complaint's the presence of a member of her staff, Seville merely expressed surprise unfair labor practices allegations by a preponderance of and apparently did not then regard Malloy's behavior as a matter of seri- the evidence (Wright Line, supra, fn. 11). Accordingly, I ous enough consequence to reverse his earlier approval that day of Pe- trov's recommendation that no action be taken at that time against s h a ll recommend dismissal Of the complaint. Malloy and that Malloy's probationary period be extended indefinitely. This is an item of evidence that has given me some pause in the conclu- CONCLUSIONS OF LAW sion I reach here, since it may be construed as an indication that Long would have similarly evaluated Malloy's cursing conduct were it not for 1. Respondent is engaged in commerce within the Malloy's intervening protected activity. However, I do not think such an meaning of Section 2(6) and (7) of the Act. inference is reasonably warranted for two reasons: First, Long was Se- ville's superior and, therefore, not bound by his judgment. Second, Se- 2' Respondent has not, as alleged in the complaint, en- ville and Denton each headed separate staffs at Respondent's facility, Se-. gaged in unfair labor practices within the meaning of ville the operations staff, and Denton the administrative staff As project Section 8(a)(l) and (3) of the Act. manager, Long could be expected to have a greater sense of obligation to [eomne re o imsa mte rmpb correct grievancesematg f tcommended Order for dismissal omitted from pub- support the recommendation of the manager of that staff. lication.] 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straw" warranting discharge action, when considered in have discharged Malloy at the time it did and for the le- conjunction with Malloy's probationary status, failure to gitimate reasons it asserts it did even in the absence of sustain an acceptable level of performance, and other his union activities. problems Respondent had had with him as an employee." It follows, as I read the Board's Wright Line causation In these circumstances, I am unable to regard Long's dis- test, that Malloy's discharge must be found to be nondis- charge decision as so devoid of legitimate business justifi- criminatory even though, as the evidence in this record cation as to negate the plausibility of his testimony that shows, Long was displeased with Malloy's questions and he would have discharged Malloy upon learning of the comments at the "brown bag" lunch found above to con- paycheck incident even if there had been no "brown stitute protected activity and may for that reason also bag" lunch. Accordingly, I credit Long's testimony in have welcomed Malloy's discharge. (See Mt. Healthy that respect, and on the basis of his testimony and the City School District Board of Education, 429 U.S. 274, 285 evidentiary support for it in this record, I find that Re- (1977), and the quotation therefrom in Wright Line, supra spondent has successfully demonstrated that it would a t 1086.) For the reasons stated above, I conclude and find that I The record does show, to be sure, that on Friday when Murray re- t he General Counsel has failed to satisfy the Ultimate ported to Seville Denton's complaint about Malloy's cursing conduct in burden imposed on him of establishing the complaint's the presence of a member of her staff, Seville merely expressed surprise unfair labor practices allegations by a preponderance of and apparently did not then regard Malloy's behavior as a matter of seri- the evidence (Wright Line, supra, fn. 11). Accordingly, I ous enough consequence to reverse his earlier approval that day of Pe- trov's recommendation that no action be taken at that time against s h a ll recommend dismissal Of the complaint. Malloy and that Malloy's probationary period be extended indefinitely. This is an item of evidence that has given me some pause in the conclu- CONCLUSIONS OF LAW sion I reach here, since it may be construed as an indication that Long would have similarly evaluated Malloy's cursing conduct were it not for 1. Respondent is engaged in commerce within the Malloy's intervening protected activity. However, I do not think such an meaning of Section 2(6) and (7) of the Act. inference is reasonably warranted for two reasons: First, Long was Se- ville's superior and, therefore, not bound by his judgment. Second, Se- 2 ' Respondent has not, as alleged in the complaint, en- ville and Denton each headed separate staffs at Respondent's facility, Se-. gaged in unfair labor practices within the meaning of ville the operations staff, and Denton the administrative staff. As project Section 8(a)(l) and (3) of the Act. manager, Long could be expected to have a greater sense of obligation to [eomne re o imsa mte rmpb correct grievancesematg f tcommended Order for dismissal omitted from pub- support the recommendation of the manager of that staff. lication.] 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD straw" warranting discharge action, when considered in have discharged Malloy at the time it did and for the le- conjunction with Malloy's probationary status, failure to gitimate reasons it asserts it did even in the absence of sustain an acceptable level of performance, and other his union activities. problems Respondent had had with him as an employee." It follows, as I read the Board's Wright Line causation In these circumstances, I am unable to regard Long's dis- test, that Malloy's discharge must be found to be nondis- charge decision as so devoid of legitimate business justifi- criminatory even though, as the evidence in this record cation as to negate the plausibility of his testimony that shows, Long was displeased with Malloy's questions and he would have discharged Malloy upon learning of the comments at the "brown bag" lunch found above to con- paycheck incident even if there had been no "brown stitute protected activity and may for that reason also bag" lunch. Accordingly, I credit Long's testimony in have welcomed Malloy's discharge. (See Mt. Healthy that respect, and on the basis of his testimony and the City School District Board of Education, 429 U.S. 274, 285 evidentiary support for it in this record, I find that Re- (1977), and the quotation therefrom in Wright Line, supra spondent has successfully demonstrated that it would a t 1086.) For the reasons stated above, I conclude and find that I The record does show, to be sure, that on Friday when Murray re- t he General Counsel has failed to satisfy the Ultimate ported to Seville Denton's complaint about Malloy's cursing conduct in burden imposed on him of establishing the complaint's the presence of a member of her staff, Seville merely expressed surprise unfair labor practices allegations by a preponderance of and apparently did not then regard Malloy's behavior as a matter of seri- the evidence (Wright Line, supra, fn. 11). Accordingly, I ous enough consequence to reverse his earlier approval that day of Pe- trov's recommendation that no action be taken at that time against s h a ll recommend dismissal Of the complaint. Malloy and that Malloy's probationary period be extended indefinitely. This is an item of evidence that has given me some pause in the conclu- CONCLUSIONS OF LAW sion I reach here, since it may be construed as an indication that Long would have similarly evaluated Malloy's cursing conduct were it not for 1. Respondent is engaged in commerce within the Malloy's intervening protected activity. However, I do not think such an meaning of Section 2(6) and (7) of the Act. inference is reasonably warranted for two reasons: First, Long was Se- ville's superior and, therefore, not bound by his judgment. Second, Se- 2' Respondent has not, as alleged in the complaint, en- ville and Denton each headed separate staffs at Respondent's facility, Se-. gaged in unfair labor practices within the meaning of ville the operations staff, and Denton the administrative staff. As project Section 8(a)(l) and (3) of the Act. manager, Long could be expected to have a greater sense of obligation to [eomne re o imsa mte rmpb correct grievancesematg f tcommended Order for dismissal omitted from pub- support the recommendation of the manager of that staff. lication.]