Jhirmack Enterprises

JffIRMACK ENTERPRISES Jhirmack Enterprises and Sharron Kay Allison. Case 20-CA-16935 13 April 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN -AND BABSON On 9 March -1983 Administrative Law Judge William L. Schmidt issued the attached decision.' The Respondent filed exceptions and a supporting brief, and the General Counsel filed a letter in sup- port of the judge's decision. The National Labor Relations- Board has delegat- ed its authority in this proceeding 'to a three- member panel. The Board has considered the decision and the record in light of the exceptions, brief, and letter and has decided to affirm the judge's rulings, find- ings,2 and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jhirmack Enterprises, Redding, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The judge issued an errata to his decision on 18 March 1983. 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In finding Allison''s discharge to be unlawful, we rely also on the fact that her discharge was based, in part, on an unlawful disciplinary warn- mg she was given approximately 12 days before her discharge. This fact is evidenced by the discharge form prepared by the Respondent, and quoted in the attached decision, that Allison's discharge was "based on her past record of aggravating situations" and that she had been "coun- seled repeatedly." Members Johansen and Babson agree with the judge that Allison was engaged in a fundamental form of protected concerted activity when she advised employee Ramsey, in response to his inquiry, that some employ- ees had complained to management at the attitude survey meeting about his slow ,lob performance. The employee complaints were prompted by their concern that Ramsey's performance adversely affected their chances of winning the weekly production award and increased the possibility of overtime work. Allison's purpose in relaying the complaints to Ramsey was to encourage him to take corrective action to protect his ,lob. Thus, they find that Allison's conduct was clearly undertaken for the mutual aid and protection of a fellow employee and therefore constituted actual concerted activity. They additionally find that Allison's conversation with Ramsey constituted a logical outgrowth of the concerted complaints of other employees about Ramsey's job performance and a continuation of that earlier protected concerted activity. See JMC Transport, 272 NLRB 545 fn 2 (1984), and Dayton Typographical Service, 273 'NLRB 1205 (1984), enfd, in relevant part 778 F 2d 1188 (6th Cir. 1985) 609 CHAIRMAN DOTSON, concurring. I concur in my colleagues' finding that the Re- spondent violated Section 8(a)(1) of the Act by'dis- charging employee Sharon Kay Allison because of her protected concerted activity. Unlike my col- leagues, however, I find an adoption of the judge's decision inadequate to provide the necessary ra- tionale for the fording of a violation. The record reveals that at a February - 19821 meeting of swing-shift, packaging ]line employees with several of the Respondent's management offi- cials, a discussion ensued concerning the inefficien- cy of packaging line mechanic Dan Ramsey: Ram- sey's work affected the other line employees be- cause if he was slow in' repairing line malfunctions, the other employees could be required to work overtime on Saturday to meet production quotas and could fail to win the Respondent's award of free pizza at lunchtime to the week's most produc- tive packaging line. Following this meeting, RamseY, who had not attended the meeting, had a conversation with Alli- son that resulted in Allison's 'discharge. At the hearing Allison and Ramsey presented different versions of this conversation. According to Allison, Ramsey approached her and asked if she had been at the meeting. When Allison said yes, Ramsey asked if anything had been said about him. Allison asked why, and he said that he had heard "the women were talking him down." Allison respond- ed, "Yes. They did. Uh, they said you were pretty slow on the machines .... Don't get mad about it .... Just get in there and show the girls that, you know, that you're not slow, that you can do it." According to Ramsey, Allison initiated the con- versation about the meeting, told hire 'that the em- ployees talked about his work performance about "how bad it was, how slow you was,"' and then identified the two employees who had been the most vocal against Ramsey. It is undisputed that Ramsey, who was upset by what Allison had told him, spoke to Joyce Delgado, a quality control em- ployee, about his conversation with Allison. Subse- quently, Supervisor Jim Hay learned of the conver- sation and informed Plant Manager John Ruyle. After conferring with Ramsey and several other employees,2 Hay and Ruyle reported ,the incident to Personnel Manager Robert Honaker, who decid- ed to discharge Allison. On 10 ' February Hay in- formed Allison of her discharge. The Respondent admits, and the judge found, that Allison's discharge was motivated by her con- All dates are in 1982. 2 Neither Hay nor Ruyle spoke with Allison about the incident prior to the discharge decision 283 NLRB No. 91 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD versation with Ramsey.3 The Respondent con- tends, however, that the conversation did-not con- stitute protected concerted activity because Alli- son, on her own initiative, informed Ramsey that he. had been criticized by fellow employees, there- by, breaching the confidentiality of the 5 February meeting and deliberately undermining the morale of Ramsey, Dionne Alger,4 and other employees. The. Respondent's contention is supportable only if its witnesses are credited. The judge, however, discredited the Respondent's witnesses, and I, like my colleagues, will not disturb these credibility findings. See Standard Dry Wall Products, 188 F.2d 362 (3d Cir. 1951). Thus, the judge found that the Respondent did not impose a "general gag rule" concerning the discussion at the 5 February meet- ing. Further, the judge, crediting Allison's version of her conversation with Ramsey, rejected the Re- spondent's contention that Allison deliberately in- tended to hurt Ramsey by revealing that he had been the subject of discussion at the meeting. Rather, the judge found that Allison's "primary purpose in responding to the inquiry which ,Ramsey initiated was. to confirm to him that ad- verse comments had been, made to management about his work and to encourage him to take cor- rective action." Based on this finding, I conclude that Allison's remarks to Ramsey constituted actual concerted ac- tivity, s Thus, the conversation consisted of Ramsey seeking information from Allison in an attempt to protect his job and Allison responding with the re- quested information .and with words of encourage- ment to Ramsey to work faster and thereby protect his job. Such an interaction of two employees is actual concerted activity for "mutual aid or protec- tion" clearly, envisioned within Section 7, and therefore a discharge motivated by such activity violates Section 8(a)(1). The inquiry, however, cannot stop at this junc- ture. 'Me, Respondent established through the testi- mony of its witnesses that it discharged Allison be- cause of its good-faith belief that she had engaged p I am puzzled by my colleagues' statement that in finding Allison's discharge to be unlawful, they also rely "on the fact that her discharge was=-based, in part, on an unlawful disciplinary warning she was given approximately 12 days before her discharge." Although I agree with their adoption of the judge's finding that the prior warning was unlawful, the judge found no' connection between the warning and the discharge. 4 According -to_the Respondent, Alger was upset by-Allison's disclo- sure to Ramsey that Alger had been highly critical of Ramsey at the 5 February meeting. 5 In light of this conclusion, it is unnecessary to apply the-Meyers defi- nition of when the act of a single employee is or is not concerted. See Meyers Industries, 268 NLRB 493 (1984), remanded sub nom. Frill v. NLRB, 755 F.2d 941 (D C. Cir. 1985), cert. denied 474 U.S. 948 (1985), reaffd 281 NLRB 882 (1986). I note, however, my disagreement with my colleagues' "logical outgrowth" theory. See my dissenting opinion in Every Woman's Place, 282 NLRB 413 (1986). in misconduct, namely,, that she had breached the rule of confidentiality imposed at the 5 February meeting and that she deliberately inflicted emotion- al harm on Ramsey. To, establish a violation under these circumstances, the General Counsel must prove that Allison did not, in fact, engage in such misconduct. NLRB v. Burnup & , Sims, 379 U. S. 21 (1964); Rubin Bros. Footwear, 99 NLRB 610 (1952). The General Counsel in this case met this burden. The General Counsel' s- witnesses testified that the events did not occur' as the Respondent en- visioned and that Allison was not guilty, of any misconduct in the course of this concerted activity. As a result she did not'lose the protection of Sec- tion 7 of the Act. As noted above,, the judge cred- ited the General Counsel's witnesses. Under these circumstances, the General Counsel-, established, and I find, that the Respondent violated Section 8(a)(1) of the Act by discharging Allison for her protected concerted activity. Maxine Auerbach, Esq., for the General Counsel. Ray Vetterlein (Labor Relations Associates), of Brisbane, California, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM L. ScHMIDT, Administrative Law Judge. This matter was heard by me on December 9 and 10, 1982,1 at Redding, California. The proceeding is based on a charge filed against Jhirmack Enterprises (Respond- ent) by Sharron Kay Allison (Allison) on March 2,. and a complaint issued by the Regional Director for Region 20 of the National Labor Relations Board (the NLRB) al- leging that Allison's February 10 discharge violated Sec- tion 8(aXl) of the National Labor Relations Act (the Act). The Respondent's timely answer denies that the Respondent engaged in the alleged unfair labor practices. On the entire record,2 my observation of the demean- or of the witnesses, and my careful consideration of the posthearing briefs filed by the General Counsel and the Respondent, I make the following - FINDINGS OF FACT 1, JURISDICTION The complaint alleges, and the answer admits, that the Respondent, a corporation, was engaged in the manufac- ture of personal care products at Redding, California, and that during the calendar year preceding the issuance of the complaint the, Respondent sold and shipped prod- ucts, goods, and materials valued in excess of $50,000 di- rectly to customers located outside the State of Califor- nia. On the basis of the foregoing, I find in accord with a 1 Where not specified, dates refer to the 1982 calendar year. 8 The transcript and all formal papers are corrected, sua sponte, to,re- fleet the proper spelling of Allison's given name as reflected by her signa- ture on the original charge. JHIRMACK ENTERPRISES further allegation in the complaint that was admitted by Respondent that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I, further find that it would effectuate the purposes of the Act for the Board to assert jurisdiction over the labor dispute involved here. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relevant Facts The complaint, as amended, alleges that Allison was discharged in violation of Section 8(a)(1) of the Act on February 10 and that she was unlawfully reprimanded on January 29. The answer admits that Allison was dis- charged on the aforementioned date but the Respondent argues forcefully that her discharge was for cause. It is undisputed that Allison was discharged because she spoke to a packaging line mechanic, Dail Ramsey, about matters involving Ramsey that were discussed at a com- pany attitude meeting on February 5. Essentially the issue in the discharge -aspect of the i case boils down to whether Allison's conduct in speaking with Ramsey was protected conduct or was, as the, Respondent claims, an aggressive verbal assault by Allison on Ramsey which was not protected by the Act. Allison was hired by the Respondent as a packer on May 11, 1981, and she remained in that position until her discharge. At the times relevant here Allison was work- ing on the swing shift. The scheduled worktime for that shift is from 3:15 p.m. to 12:15 a.m. The shift supervisor for Allison's area was James Hay. The employees at the Redding plant are not represented by any labor organiza- tion. The Respondent's personnel manager, Robert Hon- aker, testified that he perceived Allison as an instigator of trouble on her shift. Honaker's perception was grounded on complaints that Allison had made to the management that Shift Supervisor Hay on the swing shift packaging line had shown favoritism toward Joyce Lewis, a relatively junior employee in the 'department, by Hay's work assignments to Lewis and by Lewis' se- lection as a leadlady.3 Other employees in the department shared Allison's complaint and it was sufficiently vocalized so as to result in an admonition to Hay from his superior when Hay re- ceived his annual evaluation in November 1981, to avoid showing favoritism, However, in Allison's view, Hay's favoritism toward Lewis was not discontinued and in mid-January 1982, Allison went to Plant Manager John Ruyle's office where she spoke with him about what she perceived as Hay's continuing display- of favoritism toward Lewis.4 In addition, Allison spoke with other In addition, Allison had been vocal in her complaints about the Re- spondent's policy of making holiday and vacation payments to second- and third-shift employees on the basis of the hourly rate of pay for day- shift workers that did not include the shift differential 4 Allison's visit with Ruyle in January appeared to have resulted from the recent announcement 'that Lewis was going to become a leadlady. In discussing matters concerning lead employees with Allison and other em- ployees, Respondent's officials appeared to regard lead personnel as a, part of the "management team " However, there is insufficient evidence in this record to warrant the conclusion that the Respondent's lead em- 611 employees in the department and urged them. to voice their displeasure of Hay's activities to Ruyle also. Apparently the Respondent's officials were growing weary of Allison's complaints about Hay and Lewis. Al- lison was summoned to Ruyle's office on January 29 where she was verbally reprimanded by Ruyle in Hay's presence for "causing trouble in packaging with one of the employees." In addition, a written reprimand was placed in Allison's personnel file. That reprimand recited that the interview with Allison was initiated because of "bad feeling and irritation ,growing on shift which was was felt to be fed by Kay." Hay provided further details for the written reprimand that read as follows: Thru observation and comments it was felt that Kay was stirring up ill feelings among herself and other packagers toward Joyce Lewis. She was confronted with this and claimed it not to be true. I was aware that Kay and other packers felt favoritism was being shown toward Joyce Lewis and I told them I would review the situation but I did not feel that Kay was leaving it at that. She denied saying anything that would have caused trouble and felt she was being singled out because of her past record. It was sug- gested that she just do her own job and only worry about herself. Will review situation in 30 days. [Em- phasis added.] The Respondent's brief summarized its impression of Al- lison as a "disturbing influence" who was involved in a lot of agitation concerning how lead employees were se- lected, who was selected, whether overtime was manda- tory, how overtime ' was assigned, and what job assign- ments were to be ' given "and so forth and _ so on." Re- spondent concedes that the employees "legally have a right to gripe" about the foregoing matters and that Alli- son was a "prime instigator in the griping." However, the critical issue from the Respondent's viewpoint was whether Allison's activities were, as the General Counsel' in effect claims, for the mutual aid and benefit of em- ployees or whether Allison's actions were, as the Re- spondent in effect claims, for other motives disruptive to production that are, not protected., The Respondent is candid in its assertion that by the time the events of early February occurred, it was just plain tired of Allison's at- titude. On February 4 and 5, certain of the Respondent's man- agers conducted small group meetings with employees to report the results of an attitude survey that had been ad- ministered to employees in late 1981. Allison attended one of these meetings on February 5. The Respondent was represented by Vice President Robert Cox, Ruyle, and Honaker. There is a dispute whether employees were told that matters discussed' in the meeting were to be treated as confidential and not discussed outside the meeting room or whether employees were invited to vo- calize their complaints on the promise that they- would be treated as confidential vis-a-vis the employees' super- visors who were 'not present for the attitude meetings. ployees are supervisors or agents within the meaning, of the Act or mana- gerial employees. 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Allison testified that at the meeting she attended, em- ployees received the following admonition: He [Cox] first wanted everyone to feel like you could say whatever you wanted to say. He said that this was a-more or less a gripe session than any- thing, uh, for us to let all of our angers out toward our supervisors, if there was any-anything that had to do with, uh, with the, uh . . . inside packaging conditions, uh, against other packers, anything, and we were all just supposed to tell everything the way it was and that there'd be nothing held against us and our jobs wouldn't be in jeopardy, that this [was] what this meeting was about. There had been too many gripes been brought, evidently, to the head of departments and they wanted to get every- thing out in 'the open, and so everybody could say whatever they had on their minds. Several other employees testified about this matter. Sharon Brown testified that at the outset of the meeting, employees were told to "let it all hang out, all of our gripes." Brown said that no one told those in attendance that they could not, talk among themselves -about the meeting and that "[the meeting] was talk in the depart- ment from the time it began until the time it ended .. . it was just constant." Similar testimony was given by Christina Wolff. Ann Sjostron testified that she attended the same attitude meeting that Allison had attended and that after the meeting was over she thought "everybody was talking about it." Michelle Ramos -'testified that at the attitude meeting she attended, a company - official, whose `name she could not recall addressed the group for the purpose of inviting the employees- to speak up about 'their" gripes and to advise them that none of what they ,said would get back to their supervisors. Ramos said that nothing was said about employees talking among them- selves about matters discussed at the attitude meeting and after she returned to work, she heard other employees (Wolff in particular) talking about what had been said in another of the 'attitude meetings. Honaker testified that he did not really expect the employees not to talk among themselves about matters that were discussed at the atti- tude meetings. It is undisputed that in the course of the attitude meeting ' that Allison attended there was a discussion about the speed and abilities of the packaging line me- chanic, Dan Ramsey. Those who spoke up about Ramsey complained about his lack of speed in repairing the packaging line breakdowns and, as a consequence, the efficiency of the line was impaired by Ramsey's abili- ty or lack thereof. Ramsey's work had a direct bearing on the work lives of the other packaging line employees. If Ramsey took too long to repair line malfunctions, the chances for the swing-shift, packaging employees receiv- ing the Company's free pizza award on Friday night would be greatly diminished.5 And if a line was closed s, On Fridays, the Company treated the week's most productive pack- aging line to free pizza at lunchtime down-for repair too long, there was always the possibili- ty that Respondent would require the packaging ,line em- ployees to work Saturday overtime in order to- meet pro- duction quotes. In short, 'Ramsey's role had the- potential of affecting all the packaging employees and there was a feeling among a significant group of employees- that, at that particular time, Ramsey was slowing up the oper- ation.6 It is undisputed that following the attitude meeting that Allison attended, she spoke to Ramsey (who had not attended the meeting) and apprised him of the complaints that had been made about him at the meeting. Allison's version of the manner in which her conversation with Ramsey arose and the substance of that conversation was as follows: A. I was working on the, line that Dan was a me- chanic on and he came over tome and he asked me that-if I had been to the meeting that was held that afternoon, and I told him yes, that I had been there. And he asked me if the-there had been any- thing ,said at the meeting about him. And I asked him "Why?" And he said he had heard that there was-the women were talking him down. And I said, "Yes." I said, "They did. Uh, they said that you were pretty slow on the machines." And I said, "Don't get mad about it." I said, "Just get in there and show the girls that, you know, that you're not slow, that can do it." And he says, "Okay." He said, "Thanks for telling me," and he-left. Q. Why did you tell him? A. Because the things that was being said in the meeting about him, I felt like his job was in jeop- ardy. He's my friend. I like Dan. I feel sorry for him. He had,, a wife and two kids and jobs were hard to find. So I told him. And, uh-for that reason plus the reason that if it would speed him up, it's going to get our production out, for us, we won't have to work Saturdays, and we'll-beat the day shifts and well get the pizza.7 , Ramsey, who was still employed by-the Respondent at the time of the hearing, was called as a witness by the Respondent to give his version of his February 5 ex- change with Allison. According to Ramsey, he was going along the packaging line adjusting the torque on the capping machines. Before approaching the area where Allison was working, Ramsey had been, in the area where Dee Alger worked and had been speaking with Alger as he was performing his job. Alger had been particularly vocal in the attitude meeting about Ramsey's deficiencies. When Ramsey approached Allison's work area, Ramsey said that Allison remarked: "I don't see how people can laugh and joke with you after what they said." Ramsey's testimony about the remainder of his conversation with Allison at this time was as follows: B Ramsey had worked for the Respondent for about 5 years at the time but only recently had been promoted to the line mechanic's job. 7 Other testimony establishes that Allison 'had known Ramsey as a youth. Allison had been a personal friend of Ramsey's mother when she was living and often visited-Ramsey's childhood home , JHIRMACK ENTERPRISES A. Okay. I was surprised , and then she came out: "I'm going to tell you this as a friend that the 'girls and me was talking about your work performance, bow bad it was, how slow you was." And then she made a statement like, "There is -too [sic] girls espe- cially who was doing all the talking." Then I asked her who it was. She said Dee Alger and Faithhope [Castellanos]. Q. Anything further that you recollect about the conversation? A. Just that right now. Kind of lapse my memory right now. Ramsey testified that he was upset by what Allison had said to him and that it continued to bother him as he worked the remainder ' of the evening. According to Ramsey it was "an upsetting thing" to learn that his 'fellow workers did not believe that he was doing a good job. Ramsey testified that later that evening he spoke to Joyce Delgado, a quality control employee, in Delgado's office, about the substance of Allison's conversation with him, Apparently, Delgado passed that information along to others. On Monday, February 8, Hay spoke to Ramsey about Allison's conversation with- him. Alger also found, out about Allison's conversation with Ramsey and, on Tuesday, February 9, she discussed the matter with Hay. Alger complained to' Hay about Allison's action in speaking to Ramsey concerning those matters that she had raised about Ramsey at the attitude meeting. Hay testified that he set out to investigate Alger's allega- tion: His investigation consisted of asking Ramsey if Alli- son had talked to him and when Ramsey acknowledged that that was the case, Hay "asked Ramsey to tell him what Allison had said. Hay did not provide any testimo- ny with respect to Ramsey's response. Hay did testify that he next went to Ruyle with the information con. cerning the Allison-Ramsey conversation.' According to,Allison, on Wednesday, February 10, Rosemary Lewis, the head lead employee on ' her shift, approached her about 6 pm. and told her 'that Hay wanted to speak to her in the lunchroom. Allison com- plied and,' when she arrived 'at the lunchroom and had seated herself, Hay began by saying, "Kay, you're termi- nated." Allison testified that the conversation 'continued as follows: I asked him "Why? What did I do?" And he said, "'You were talking. You're being terminated for talking." And I said, "I-that I didn't understand what ' he was talking about, you know, that there wasn't a rule that we couldn't talk." And he said, "]['m referring to the attitude meeting.", He said, "'You told Dan Ramsey what was said about him at the meeting." And I said, uh, "Yeah, I did. I-there was nothing at the meeting that said we couldn't talk to the other employees. The meeting stipulated that we could not-what we had to say at the meet- ing wasn't going to get back to , you and we could say whatever we had to say about anything or any- body. And he said. "No, that you told Dan Ramsey what was said and you violated the confi- 613 dentuality [sic] of an employee and you're terminat- ed." A. And I said, "Well, then if you're going to ter- minate me for talking about the meeting, then you should go in and get everybody in the packaging room and terminate them because we were all talk- ing about it at break and at, lunch." And he said, "I'm not worried about the others. I'm worried about you." Q. Did he give-you any other reason for your termination? A. No. He told me that he had told me at a prior meeting with John Ruyle and himself and me that he had warned me then to mind my own business and worry about Kay Allison, and he said I didn't do that, so I'm terminated. Hay did not testify about the substance of the dis- charge conversation that he had with Allison on Febru- ary 10.8 However, the discharge form, dated February 11 that Hay prepared is in evidence. On that form, Hay listed "violation of policy" and "inability to get along with fellow employees" as the bases for Allison's dis- charge. The handwritten details recite: Breach of confidentially [sic] of attitude survey meeting and undermining morale and harmony of shift. Referring to meeting of Jan 29th 1982, 'main point that Kay was left with was "just worry about Kay Allison and no one else." Incident-some girls , in attitude meeting; brought up ability of one of the mechanics on swing shift. That evening Kay took it upon herself to inform that mechanic (Dan Ramsey) of the girls" feelings. This lowered the self esteem, and morale of Dan plus washed away the feeling of freedom the girls had to speak out at meeting without repercussions. This, based on her past record of aggravating situa- tions and disrupting harmony,, it was felt in the best interest of - Jhirmack to terminate her., Kay's work ability was fine but she had been counseled repeat- edly'to only worry about herself and avoid confron- tations. She failed to do this. B. Additional Findings and Conclusions Section 7 of the Act provides, inter alia, that: Employees shall have the right ... to engage in other concerted activities for' the purpose of ... mutual aid or protection .... Section 8(a)(1) of the Act makes it an unfair labor prac- tice for an employer. to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 s Ramos testified that Hay told her a day or two later that Allison "got fired because she was talking when she wasn't supposed to be." 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD An employer is not at liberty to punish an employee by discharging her for engaging in concerted activities that Section 7 of the Act protects. NLRB v. Washington Alu- minum Co., 370 U.S. 9, 17 (1962). The findings in section II,A, can lead to only one con- clusion, namely, that Allison was discharged by Hay be- cause she told Ramsey some of the other employees had complained about his work at the attitude meeting on February 5. Although Hay's written explanation on the Respondent's discharge form, Allison's version of the discharge conversation, and Ramos' testimony about Hay's postdischarge explanation for Allison's termination all suggest that Allison was fired because Hay believed that she had violated a confidentiality- rule regarding the attitude meeting, the Respondent's brief all but aban- doned that argument in favor of an assertion that Alli- son's purpose was to deliberately inflict deep emotional pain on Ramsey in order to retaliate against leadlady Faithhope Castellanos and employee Dee Alger.9 Thus, the Respondent's brief asserts: What Ms. Allison willfully did to Mr. Ramsey is cruel, and hurtful, and in the Employer's viewpoint, much more serious than if she had walked up and struck Mr. Ramsey in the face. In effect, the Respondent argues that Allison's actions were so destructive of employee morale as to merit her discharge. For these reasons, Respondent contends that Allison's disclosure was unprotected and that her dis- charge was for cause. The Respondent's argument that Allison's underlying motive for informing Ramsey about the discussion at the attitude meeting that she attended was to retaliate against Castellanos and Alger is grounded on the testimony of leadlady Rosemary Lewis. According to Rosemary Lewis, Alger reported to her during the evening of Feb- ruary 5 that Ramsey was upset and would not speak with her. Lewis said that later that same evening Castel- lanos approached -her and said that she felt that Allison told Ramsey about what had been said at the attitude meeting because Castellanos had directed Allison to load an entire skid of packages earlier that evening after Alli- son had, in effect, duped Alger into loading a whole skid (which would have involved doing half of Allison's work at that particular time). 9 In any event, I am satisfied that there is no meritorious, factual, or legal basis justifying Allison's discharge on the ground that the matters discussed at the attitude meetings were confidential. Thus, it is my con- clusion that Cox's remarks at the attitude meeting that Allison attended were intended as a promise by the officials present not to discuss the sub- stance' of employee remarks with the employees' supervisors rather than as a general gag rule. Such a fording is consistent with Honaker's testimo- ny that the Respondent did not expect that employees would not discuss what occurred at the meeting after they left the meeting room and the testimony of several employees that there was widespread discussion of the meetings on the production floor Moreover, in view of the ultimate finding here that Allison's true object was to respond to Ramsey's in- quiry as to whether ,there had been criticism of his work and to encour- age him to a better performance, I find that the Respondent's business need for such a prohibitive rule is insufficient to override Allison's right to make this type of disclosure to Ramsey in an effort to protect Ram- sey's job. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); NLRB v. Washington Aluminum Co., supra; American Hospital Assn., 230 NLRB 54 (1977); Blue Cross-Blue Shield of Alabama, 225 NLRB 1217 (1976). At the outset, the Respondent's contention requires a credibility resolution favoring Ramsey's version of the exchange that he had with Allison on the evening of February 5. Ramsey was -not a convincing witness. In addition, the General Counsel demonstrated on cross-ex- amination that Ramsey ' had cooperated with the Re- spondent's prehearing preparation of its case against Alli- son in several significant respects. Moreover, in the pre- hearing affidavit provided by Ramsey to the General Counsel's investigating agent only a month after-the rele- vant events, Ramsey did not indicate that Allison had told him that Alger and Castellanos were the individuals who had complained about him at the attitude meeting. Ramsey attempted to explain his recent recollection of this vital centerpiece to the Respondent's case by making a clumsy assertion that his recollection had improved by the time of the hearing, notwithstanding that at another point in his testimony, Ramsey acknowledged a "lapse" in his memory with respect to the February 5 conversa- tion with Allison. By contrast, Allison was a convincing witness who ap- peared to be making a sincere, earnest effort to truthfully relate the events to the best-of her ability. However, Al- lison was insistent that the attitude meeting had occurred on February 3,and the Respondent asserts that Allison's error in this regard is a deliberate effort' to cover up the fact that the whole incident was partof a plot by Allison to get even with Alger and Castellanos. I reject that, ar- gument. Allison's testimony on several matters, was con- sistent with the available extrinsic evidence and the Re- spondent's evidence that Allison was angry with Alger and Castellanos over the loading of the skids is grounded solely on the hearsay testimony of Rosemary Lewis con- cerning Castellanos' speculation. Indeed, Castellanos was not even called to testify nor was her absence explained. This circumstance alone merits an adverse inference about the Respondent's contention. This is especially true where, as here, Alger was called as a witness and gave no indication that Allison exhibited or harbored any ill feelings over the loading of the skids as the. Respondent contends. Accordingly, I find that Allison's error in her testimony about the date of the attitude meeting is an in- significant mistake and that, in general, Allison's testimo- ny is as reliable as one could reasonably expect consider- ing the passage of time. For these reasons, I have cred- ited Allison's testimony where it conflicts with the testi- mony of the Respondent's witnesses. In view of the foregoing, I reject the Respondent's contention that Allison set about to deliberately injure Ramsey by confirming the fact that there had been com- plaints about his job performance at the attitude meeting. Although it is very likely that Ramsey was disturbed by this news, especially in view of the limited time he had been working .in the mechanic's position, the only fair conclusion from the record before me is that Ramsey's reaction was the product of the fragile human ego and not the handiwork of an evil woman scheming to avenge an affront by Castellanos. Allison's-professed affinity for Ramsey resulting- from her friendship with his deceased mother is a far more logical explanation for her motive in making the disclosures about the job performance crit- JHIRMACK ENTERPRISES 615; icism that had been leveled at Ramsey; than is the sinister explanation propounded by the Respondent. As I am sat- isfied that Allison's explanations of her motives in talking to Ramsey are truthful, I find that her primary purpose in responding to the inquiry that Ramsey initiated was to confirm to him that adverse comments had been made to management about his work and to encourage him to take corrective action. Viewed from this perspective, it is clear that Allison's discussion with Ramsey on February 5 was a fundamental form of concerted activity in aid of a fellow employee and, hence, it was conduct protected by Section 7 of the Act. Bullocks, 247 NLRB 257 (1980). And see Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964). As it is undisputed that Allison was discharged as a direct consequence of that discussion with Ramsey, I find that her discharge violated Section ,$(a)(1) of the Act. In addition, it is concluded that as the written warning entered in Allison's personnel file following the, January 29 disciplinary interview discloses that Respondent's offi- cials had identified Allison as an "instigator" of employ- ee complaints concerning Hay's alleged favoritism toward Joyce Lewis and, as the warning was -issued for Allison's role concerning this complaint, the Respond- ent's disciplining of Allison on this occasion also violated Section 8(a)(1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening, and obstructing com- merce and the free flow of commerce. ' THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it is recommended that the Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. With respect to the affirmative remedial action, it will be recommended that the Respondent be ordered to offer Allison immediate and full reinstatement to her former or substantially equivalent position of employ- ment, discharging if necessary any individual hired after her termination, , without prejudice to the seniority or other rights and privileges enjoyed by her prior to her February 10 discharge. It will be further recommended that the Respondent be ordered to remove from its records any reference to Allison's termination and her January 29 reprimand. Sterling Sugars, 261 NLRB 472 (1982). It will also be recommended that the Respondent be ordered to make Allison whole for the losses which she suffered as a result of her unlawful discharge. The amount of backpay due Allison shall be computed in the manner provided by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon as provided by the Board in Olympic Medical Corp., 250 NLRB 146 (1980), and Florida Steel Corp., 231 NLRB 651 (1977). And see generally Isis Plumbing Co., 138 NLRB 716 (1962). Finally, it will be recommended that the Re•• spondent be ordered to post the notice to employees at- tached hereto as an appendix for a period of 60 consecu- tive days in order that employees may be apprised of their rights under the, Act and the Respondent's obliga- tion to remedy the unfair labor practices found above. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or .in an industry affecting commerce within, the meaning of Sec- tion 2(6) and (7) of the Act. 2. By confirming Dan- Ramsey's inquiry as to whether there had been a criticism of his job performance at the Respondent's February 5, 1982, attitude meeting, and by complaining to management about supervisors favoring certain employees, Sharron Kay Allison was engaged in a form of concerted activities guaranteed to employees by Section 7 of the Act. 3. By discharging Sharron Kay Allison because she en- gaged in the activity specified in, paragraph 2, above, in- volving Ramsey, and by placing a written warning in Sharron Kay Allison's personnel, file following a discipli- nary interview on January 29,'1982, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edio ORDER The Respondent, Jhirmack Enterprises, Redding, Cali- fornia, its officers; agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or, disciplining any employee for exer- cising rights guaranteed by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees because they choose to exercise the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to reinstate Sharron Kay Allison and make her whole in the manner specified in the remedy section of the decision. (b) Remove from its files any reference to the dis- charge of Sharron, Kay Allison on February 10, 1982, or the reprimand of Allison on January 29, 1982, and notify her in writing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel actions against her. ao All outstanding motions inconsistent with the recommended Order are denied. If no exceptions are filed as provided by Sec 102 46 of the Board's - Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Preserve and, on request, make available to the Board or its agents for examination and copying all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary or useful to a determination of the amount of backpay due under the terms of this Order, the propriety of any offer of reinstatement made to Sharron Kay Alli- son, and Respondent's compliance with, -in order to comply with paragraph 2, subparagraph (b), of this Order. (d) Post at its plant in Redding, California, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ' 1 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees the following rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion - To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or discipline any employees because they choose to exercise any of the rights that are guaranteed by the National Labor Relations Act. WE WILL NOT in any' like or related manner interfere with, restrain, or coerce any of our employees because they choose to exercise the rights set forth above that are guaranteed by, Section 7 of the National Labor Rela- tins Act.' WE WILL offer to reinstate Sharron Kay Allison to her former position, and WE WILL reimburse her for any losses resulting from' her discharge on February 10, 1982. We are required to do this because the National Labor Relations Board found that we violated the law by dis- charging Sharron Kay Allison on February 10, 1982, 'for engaging in activities that are protected by the National Labor Relations Act. , WE WILL remove from the records of Sharron Kay Allison any written reports, notations, or memoranda re- flecting her February 10, 1982 reprimand, and WE WILL notify her in writing that this has been done and that evi- dence of these unlawful actions will not be used as a basis for future discipline against her. JHIRMACK ENTERPRISES The National Labor Relations Board has found that we violated the -National Labor Relations Act and has or- dered us to post and abide by this notice.