Nu Dawn Homes, Inc.

554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nu Dawn Homes, Inc. and Susan K. Martin and Modesta L. Greenland . Cases 19-CA-19053 and 19-CA-19105 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 4, 1988, Administrative Law Judge Arline Pacht issued the attached decision. The Re- spondent filed exceptions and a brief in support, and the General Counsel filed an answering brief. 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 and briefs and has decided to affirm the judge' s rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Nu Dawn Homes, Inc., Federal Way, Washington, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. ' 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 affirming the judge's finding that the Respondent violated Sec 8(a)(1) of the Act by discharging employees Martin and Greenland be- cause they insisted on being paid overtime in accordance with the wage and hour laws of the State of Washington , we find it unnecessary to rely on the small-plant doctrine in determining whether the Respondent was aware of the concerted nature of their activity There is ample evidence, as found by the judge, that the Respondent knew that the two were acting not only for themselves but also on behalf of their coworkers Further, we correct the judge's analysis insofar as she states that under Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), the General Counsel bears the initial burden of proving that the employ- ees were engaged in protected concerted activity which was a "donu- nant" factor prompting the employer 's action The General Counsel bears the initial burden of proving that the protected concerted activity was a motivating factor in the employer's action Linda Scheldrup, Esq., for the General Counsel. Chris McCleod, Esq. (Harpold, Fornabai & Fiori), of Auburn, Washington, for the Respondent. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. On charges filed by Susan K. Martin (Martin) and Modesta L. Greenland (Greenland) on April 10 and 30, 1987, re- spectively.1 A consolidated complaint issued on May 29 alleging that Respondent Nu Dawn Homes, Inc. violated Section 8(a)(1) of the National Labor Relations Act (the Act), by terminating Martin and Greenland and thereaf- ter refusing to reinstate them because they concertedly asserted their right to be paid for overtime work. The Respondent filed a timely answer on June 4, as amended on June 8 and October 9. The case came to trial before me in Seattle, Washing- ton, on October 14 and 15, at which time the parties had full opportunity to examine and cross-examine witnesses, to introduce documentary evidence, and to present oral argument. After considering the witnesses' demeanor, the parties' posttrial briefs, and the General Counsel's reply brief,2 and on the entire record, pursuant to Section 10(c) of the Act, I make the following FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS Respondent, a Washington corporation with an office and place of business in Federal Way, Washington, is en- gaged in constructing residential homes. During the past 12 months, a representative period, in the course and conduct of its business, Respondent had gross sales of goods and services valued in excess of $500,000. Further, during the 12 months prior to the issuance of the com- plaint, Respondent purchased and caused to be trans- ferred and delivered to its facilities within the State of Washington, goods and materials valued in excess of $50,000 directly from sources outside of the State or from suppliers within the State, that in turn obtained such goods and materials directly from sources outside of the State. Accordingly, the complaint alleges, Re- spondent admits, and I find that Nu Dawn Homes is and has been at all times material herein an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Dramatis Personnae Respondent, a small, closely held corporation, is one of five allied enterprises wholly owned by John C. Tynes and Floyd Hoffman, his brother-in-law, who serve as president and vice president, respectively, of the com- panies. At the time of the operative events described below, Della Pulley, Respondent's vice president for management and finance, was responsible for bookkeep- ing and office personnel management for all the sister companies. Three administrative assistants, Susan Martin, Modesta Greenland, and Kathleen Zulaski-plus a recep- tionist, Shirley Ebeling, worked under her supervision. Don Winslow, vice president for acquisitions and mar- keting, his assistant, Donna Heider, and Respondent's ar- chitect, Fred Wopfer, all worked in the same somewhat cramped office space. Unless otherwise specified all events took place in 1987. 2 Because Respondent 's counsel inadvertently filed his brief late, after having received opposing counsel 's brief, the General Counsel was au- thorized to submit a reply 289 NLRB No. 73 NU DAWN HOMES 555 Greenland began working for the Respondent as a re- ceptionist-secretary on February 26, 1986, at a starting monthly salary of $800. By end, she was earning $1000 per month. In addition, Company President Tynes awarded her a $100 bonus in November. A month later, he congratulated her on receiving high grades in two computer program courses she had just completed at Re- spondent's expense. Respondent's managers evidently were pleased with Greenland's work and spoke highly of her industry at a corporate meeting in December 1986. Don Winslow re- lated that at this meeting Tynes praised her as "the hard- est working person in the Company .. .." Tynes, Pulley, and Hoffman then agreed that Greenland should be promoted to a position as Pulley' s assistant, effective in January 1987. Greenland continued as receptionist/secretary while gradually assuming some of her new duties until her re- placement, Shirley Ebeling, was hired in mid-January. Greenland then became responsible for Ebeling's train- ing. Martin, who had worked with Pulley at another com- pany in 1976, was recruited by her and began working for Respondent in April 1986, performing a variety of bookkeeping tasks. In addition to a 1-year college ac- counting course, Martin had more than 20 years' experi- ence working for various companies using secretarial, bookkeeping, and computer skills. Consequently, at her initial interview, Pulley advised her that she might be overqualified for the position with Respondent. At that same time, Pulley also mentioned that because another employee, Linda Vixie, had complained to her about Re- spondent's overtime policy, she wished to make it clear that any overtime work would be compensated with time off but not with extra pay. Martin's starting salary was $1200 per month. By December 1986, she was earn- ing $1600 with pay periods falling on the 5th and 20th of each month. She also received several bonuses, most re- cently in November 1986. During the last week of Janu- ary, she received flowers with an appreciative note from Pulley who thanked her for proposing a new accounting procedure that, as Pulley put it, "will make us efficient, accurate, and help us to get out of here at 5."3 In August 1986, after Linda Vixie gave notice of her intent to resign, Respondent hired Kathleen Zulaski. Wit- nesses for the General Counsel and the Respondent of- fered widely divergent views of the quality of Zulaski's performance during the first 6 months of her employ- ment. According to Vixie, who trained her initially, and to Martin, who took over when Vixie left, Zulaski worked slowly and frequently needed considerable assist- ance particularly when transferring data from invoices to the computer. Others, including Tynes, complained about Zulaski's inept handling of telephone inquiries. Tynes and Pulley acknowledged at the hearing that Zulaski was far less experienced than Martin. However, they both maintained that because her formal training in 3 In its brief, Respondent contends that Martin could not recall the de- tails of her proposal The record proves otherwise for she clearly ex- plained that she suggested transferring data to the computer from the ac- counts payable records rather than from the more cumbersome check ledger accounting was superior to that of Martin's or Green- land's, she had the potential to out-perform the other women. However, Pulley and Tynes erred as to the extent of Zulaski's formal training when they testified that she held two accounting degrees. In fact, she re- ceived one accounting certificate from a business school after taking two accounting courses, each lasting ap- proximately 3 months. She received a second certificate from the same school after completing an additional course in management . She also had a one-year college course in computer science. Prior to her employment with Respondent she had held two temporary jobs whose duration was no more than a week or two. By Zulaski's own account, she was a novice in the business world and had much to learn. She candidly acknowl- edged turning frequently to Martin for advice and to making mistakes entering data into the computer. She re- vealed that she was reprimanded in January 1987 for not processing utility bills to Pulley's satisfaction and that she had made a few errors in writing checks. At the time of trial, her work was still under review by Pulley. B. The Employees Challenge Respondent's Overtime Policy Greenland and Martin recalled discussing Respond- ent's overtime policy with Vixie in July 1986. When Vixie tendered her resignation that same month, she told Pulley that she thought Respondent's failure to pay over- time was unlawful and bad for employee morale. Pulley responded that the Respondent would not alter its policy and would continue granting compensatory time off rather than paying for extra hours worked. While working late one evening in December 1986, and after having accumulated a considerable amount of uncompensated overtime hours, Martin remarked to Pulley that she had heard it was illegal for employees not to be paid for overtime. Pulley reminded Martin that she accepted the job with knowledge of Respondent's overtime policy and that if she was dissatisfied she could find another position. Beginning in January 1987, Martin and Greenland became increasingly assertive in questioning Respond- ent's overtime practices. As noted previously, Greenland became Pulley's assistant in January. However, Green- land apparently misunderstood the terms of her promo- tion, believing that she would receive a $500 raise as soon as she assumed her new post. When she failed to receive the anticipated raise or payment for a modest amount of overtime worked in 1986 on each of two pay periods in January and again on the first pay period in February, she questioned Pulley about the delays on sev- eral occasions. When Greenland first raised the matter, Pulley advised her that the raise would commence at the end of Janu- ary. It was not until February 5 that Greenland received a check for $600 reflecting a pay raise of $100 per pay period. However, this amount was less of a raise than she believed she had been promised. Therefore, she again pursued the matter with Pulley, questioning both the wages she thought were due as well as payment for overtime. Realizing that there had been a misunderstand- 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing, Pulley prepared a memo on February 7 that ex- plained that Greenland had embarked on a 6-month training program as her assistant at a salary of $1200 a month ranging upward to $1500 depending upon the re- sponsibilities that she might assume. The memo further noted that Greenland would receive a $100 check making her pay raise retroactive to January 1 and also cover the "extra-time" that she previously had worked, an apparent reference to the overtime . Greenland signed this memo on February 9 and received the $100 retroac- tive paycheck on February 11. Greenland shared her concerns about her pay raise and the overtime situation with Martin since, as she ex- plained, she anticipated having to work more overtime as Pulley's assistant. When she mentioned a newsletter pub- lished by the State Department of Industries and Labor, which contained an article concerning overtime pay, the women agreed that Greenland would call the agency to make further inquiry. She did so about February 11 and then reported to Martin that State law required that an employer pay time and a half for each hour of overtime worked unless the employee was granted time off within the time period in which the overtime was worked. The next day Martin called the agency herself to confirm Greenland's understanding. After both women had ascertained the applicable law on overtime compensation, they talked with other office employees about their right to overtime pay. Reception- ist Ebeling recalled that Martin asked her to keep any in- coming calls from the Department of Labor and Indus- tries confidential . Ebeling also confirmed that Greenland had spoken to her about overtime. However, out of fear and a desire to avoid office politics, Ebeling indicated that she did not wish to get involved . Martin also spoke to Zulaski about the overtime matter and found that she, too, exhibited some apprehension and said she would prefer to take compensatory time off. In addition, Martin and Greenland spoke to Wepfer, Winslow, and Heider about the overtime matter. On the evening of February 12, Martin and Greenland conferred by telephone about how best to present their findings about overtime pay to Pulley. Martin testified that on the following day she told Pulley in private that she wanted to be paid for her overtime at time and a half, and advised Pulley that she had an obligation to inform the employees of their legal rights under state law. According to Martin, Pulley grew very angry and said she would respond to Martin's request after check- ing with Respondent's attorney. Martin testified that the following week Pulley informed her that Respondent's counsel had said it was the Company's choice either to pay for overtime or grant time off. She agreed to pay Martin for her overtime but at a straight time rate and asked her to sign a statement agreeing that it was a one- time only payment. Martin refused to sign such a state- ment and bluntly told Pulley that her information about the Company's legal obligation was incorrect. Pulley ended that conversation by saying that she would con- sult Tynes as to the next step. Thereafter, on February 23, Pulley received a letter from Respondent's attorney confirming what Martin and Greenland already had learned; that is, that an employer was obliged to provide compensatory time within the same pay period or else pay time and a half for each hour of overtime worked . Greenland happened to see the attorney's letter since at the time she was supervising Ebeling in distributing the mail. On the day after this letter arrived, Ebeling told Greenland that Pulley had been upset on receiving the mail. That same day Pulley instructed Greenland that she was no longer to review incoming mail. About the same date, Pulley informed Martin that she would receive a check for her overtime at time and a half. According to Martin, Pulley added that she did not understand why Martin was being so disloyal; that she was "stabbing me (Pulley] in the back." Soon thereafter, Martin was correctly paid for her overtime work. Without specifically denying the remarks Martin at- tributed to her, Pulley offered a much different account of their exchange about overtime pay. She related that in early February Martin requested time off for 50 hours of accumulated overtime work. Fearing that extended ab- sence would create a paperwork backlog , Pulley main- tained that on her own initiative she sought Vice Presi- dent Hoffman's approval to pay Martin for her overtime. Pulley admitted, however, that she did advise Martin that the payment would be a one-time practice, that Martin insisted it was the employee's option to take leave or seek wages for the overtime, and suggested that she advise the other office employees as to state overtime re- quirements. I find Martin's detailed version of these matters more reliable than Pulley's vague recollection. Pulley, for ex- ample, thought that counsel's letter arrived early in Feb- ruary until she was shown the February 23 date stamped on the document. In contrast, Martin recalled facts by tying them to particular events, some of which (such as their phone call) were corroborated by Greenland. Moreover, regardless of who initiated the conversation with regard to overtime pay, Pulley did verify some of the salient details of Martin's account, including the fact that it was Martin who insisted that employees had a right to seek wages for overtime and that other employ- ees should be notified of their rights. Pulley testified at the trial that she was not at all dis- turbed about this overtime controversy; rather, she was relieved to have the matter resolved. Time may have mellowed her recollection of this event, however, for Winslow recalled that her reaction to the overtime pay problem was an angry one. Thus, he testified that Pulley told him that she was very upset and frustrated at the sit- uation that Martin and Greenland had created. Further, Hoffman asked Winslow in an agitated manner if he had heard about the overtime problem with "Della's girls" and asserted that if they were his workers he would "kick their butts out in the street."4 * I credit Winslow's account for I found him to be a calm, thoughtful witness who candidly acknowledged having harbored and overcome bitter feelings when he was terminated. Moreover, Hoffman, who shared an office with Pulley, was not called as a witness and, thus, did not con- tradict the statement Winslow attributed to him. NU DAWN HOMES 557 C. Respondent's Financial Difficulties For the past several years, since at least 1986, Re- spondent and its affiliated companies had been operating in the red, a situation that did not improve during the first quarter of 1987. Thus, a profit-and-loss statement covering the Nu Dawn enterprises' fiscal year ending March 31, 1987, showed an overall deficit of $171,000. The single greatest cause of this loss, approximately $67,000, was due to Nu Dawn Realty's failure to sell as many homes as had been projected, thereby creating what Respondent claimed was a serious cash flow prob- lem. At a management meeting in early January, Tynes, Hoffman, and Pulley agreed to search for ways to reduce overhead expenses. About February 18, Hoffman held a general meeting with employees, including office and field personnel, at which time he focused on the Company's financial plight. 5 It is undisputed that at this mid-February meeting, Hoffman stated that he wanted to dispel rumors that employees might lose their jobs and assured them that salaries would be reduced before any discharges took place. In keeping with this approach, he announced that he would move into the field as chief job superintendent while current job superintendents would shift into construction work.6 Notwithstanding Hoffman's assurances to the contrary, Pulley testified that after the January management meet- ing, she decided to reduce the number of officeworkers. Consequently, she stated that throughout January and February, she evaluated the performances of her subordi- nates. By early March, she had selected Greenland and_ Martin for dismissal , allegedly because they were less competent than Zulaski and Ebeling. In comparing Martin and Zulaski, Pulley testified that Zulaski's formal accounting education equipped her to be a more desirable employee in the long run. Further, Pulley maintained that Martin made several errors that revealed her shortcomings as a bookkeeper. First, she pointed out that during her absence in October 1986 Martin was put in charge of the office and during this time twice issued a check for $13,000 to the same suppli- er. Fortunately, the second check was returned un- cashed. Martin also erred in failing to add a tax onto a contractor's bill and reversed the debit and credit col- umns on one occasion. Pulley acknowledged that Martin responded favorably when these errors were brought to her atention and no further oversight of her work was required. Pulley also stated that she was dissatisfied with Martin's training of Zulaski who performed more effec- 5 Respondent asserted in its brief that this meeting with employees took place in early January , mistakenly relying on Pulley's testimony.In fact, the record shows that Pulley alluded to a January corporate meeting that was attended solely by Hoffman , Tynes, and herself Moreover, one of Respondent's own witnesses, Architect Fred Wepfer, generally cor- roborated Greenland's and Martin's recollection as to the date when he testified that the staff meeting at which Hoffman pledged that no one would be let go occurred just a few weeks before the women were dis- charged 6 Respondent stated in its brief that one field superintendent was dis- missed as part of a financial reorganization . Although the record is not altogether clear in this regard, I infer from Tynes' testimony that a field superintendent was not dismissed but was transferred to a lesser paying job framing houses See Tr 9 tively under her own supervision. Contrary to Pulley's recollection, Zulaski herself indicated that she was not supervised by Pulley until after Martin had been dis- missed. Pulley also stated that Greenland was less capable than Zulaski. Pulley was particularly distressed at what she claimed was Greenland's lack of responsibility in failing to make a deposit one Friday afternoon, which would have transferred $60,000 from one of Respondent's ac- counts to another. This sum was to serve as earnest money to cover a particular sales transaction. Pulley ex- plained that Respondent was spared embarrassment only because the customer failed to verify whether the earnest money had been deposited over the weekend. Greenland did not deny failing to make the deposit, but explained that the bank refused to handle such a large transaction at its outdoor window. Not understanding what the problem was, Greenland retained the check over the weekend. Pulley maintained that she did not offer to return Greenland to her former position as a receptionist since Greenland had been adamant about receiving a higher salary. Further, Pulley indicated that Greenland was diverted by marital problems, and therefore was less efficient than the new receptionist, Ebeling. Finding that the Company's economic health posture was continuing to decline, Pulley decided in early March that she would have to terminate Greenland and Martin. Accordingly, she obtained Tynes' approval for her deci- sion and at the end of the day on March 13 advised each of the women separately that they were terminated, ef- fective immediately, for lack of funds. However, Pulley quickly perceived that she had to fill the gap left by Martin's and Greenland's departure. Accordingly, in early April she advertised for a new bookkeeper and on April 6 Janet Munger began working for the Respondent at a monthly salary of $1500. On March 23, Winslow was dismissed and within several months Nu Dawn Realty, the business for which he had primary responsi- bility, was phased completely out of existence.' As a fur- ther economy, Tynes reduced his own salary from $6000 to $2000 a month, but not until August. At some unde- termined time in 1987, he took a second mortgage on his home, using the $100,000 proceeds for operating ex- penses. Discussion and concluding findings The General Counsel contends that Greenland and Martin were terminated because they protested the Re- spondent's failure to pay for overtime work as required by state law. Respondent asserts, however, that they were discharged solely as a way to offset the Company's serious business losses. Because the Charging Parties' dis- charges arguably involved both permissible and imper- missible causes, assessing the true reason for the Re- spondent's actions requires analysis under the standards set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cit. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v Transportation Management 7 Winslow had been in charge of marketing new homes , acgmring new properties, and supervising the sales staff. 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Corp., 462 U.S. 393 (1983). Under Wright Line, the Gen- eral Counsel bears the initial burden of proving that the employees were engaged in protected concerted activity that was a dominant factor prompting the employer's dis- ciplinary action. If the General Counsel succeeds in es- tablishing a prima facie case, the burden shifts to the Re- spondent to prove affirmatively that its adverse actions would have been the same even in the absence of the employees' protected conduct. On applying these standards, I am convinced that the General Counsel has met its burden. The protected nature of Greenland's and Martin's efforts to reform Re- spondent's overtime policies requires no discussion, for the Board long has held that such conduct comes within the guarantees of Section 7. See, e.g., Joseph De Rario, DMD, P.A., 283 NLRB 592 (1987). The record also contains proof that their actions were concerted, as the Board has construed that word of art. In Meyers Industries, 281 NLRB 882, 884 (1986), the Board reaffirmed the definition of concerted activities adopted in the first Meyers case8 ruling that "to find an employee's activity to be `concerted,' we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the em- ployee himself." Here, uncontroverted evidence estab- lishes that Martin and Greenland shared their concerns about the Respondent's overtime practices with one an- other as well as bringing it to management's attention on more than one occasion. They also advised their cowork- ers about the requirements of state law and encouraged them to seek just compensation for any overtime that might be worked. When Martin met with Pulley and challenged Respondent's failure to compensate the em- ployees at time and a half, she did so with at least Greenland's express consent. Moreover, when Martin urged Pulley to advise others in the office about state re- quirements governing overtime pay and when Greenland urged a fellow worker to keep careful records so that she too might receive proper compensation for overtime, they clearly were engaged in activities that went beyond their own self-interest. Further, Respondent cannot seriously claim that it was unaware of Martin's and Greenland's interest in obtain- ing overtime pay for themselves and others in the office. Pulley admitted as much when she testified that Martin urged her to advise the other employees of state law, and learned that Martin had already spoken to Zulaski about the matter. Pulley's sudden withdrawal of Green- land's duty to review the distribution of mail the day after receiving counsel's letter regarding overtime pay can be explained in only one way, she knew that Green- land was allied with Martin in demanding that Respond- ent comply with state overtime requirements. Pulley maintained at trial that she was relieved to have the overtime issue resolved, but her latter-day recollection of such feelings cannot be reconciled with the evidence of her expressions of frustration to Winslow about Green- land's and Martin's activities. In addition, Hoffman's re- marks to Winslow regarding the effrontery of "Della's 8 268 NLRB 493 ( 1984), revd and remanded Prill v. NLRB, 755 F 2d 941 (D.C Cir 1985) girls" challenging Respondent's overtime policy reveals Respondent's knowledge of and hostility toward the women's concerted activity. Considering that Hoffman shared office space with Pulley, with whom he conferred about overtime payment for Martin, and considering also that he was vice president of the firm and Tynes' broth- er-in-law, his undisputed comments to Winslow are par- ticularly probative on the question of knowledge and animus. Although abundant evidence establishes that Respond- ent was well aware of the Charging Parties' concerted efforts, knowledge also may be inferred by application of the Board's "small plant" doctrine. See, e.g., Wiese Plow Welding Co., 123 NLRB 616 (1959). Here, within the confines of Respondent's crowded quarters, enough dis- cussion of the overtime issue took place so that even a new disinterested employee like Ebeling had heard "something going on about overtime." If Ebeling, who wished to abstain from politics, knew of the overtime controversy, then certainly, Pulley, an alert and defen- sive manager, most certainly knew of it. Pulley's and Hoffman's angry reaction to Greenland's and Martin's insistence on a revised overtime policy leads to suspicion that the discharges were prompted in large part by unlawful reasons. These suspicions are into virtual certitude when the events leading to the dismis- sals are juxtaposed and examined in context. In bare out- line, the salient events are as follows: (1) In January and in the first week of February, Greenland complained that she had not obtained her proper wage increase, (2) and had not received her overtime pay. The following week Martin challenged Pulley about Respondent's overtime pay policy and insisted on compliance with state regula- tions. On February 18 or thereabouts, Hoffman promised that wages would be trimmed before jobs were cut. On February 23, Pulley received a letter from counsel indi- cating that Martin had been right on the overtime issue and she had been wrong. Realizing that Greenland had seen the letter, Pulley reacted swiftly, excluding her access to such information by relieving her of the duty to review the mail distribution. On March 13, Pulley fired Greenland and Martin and on April 6 hired a new bookkeeper. The Board often has drawn an inference of unlawful motivation when a close connection in time exists between employees' protected concerted activity and an employer's adverse response. See, e.g., Aluminum Technical Extrusions, 274 NLRB 1414, 1418 (1985); Lim- pert Bros., 276 NLRB 364, 374 (1985). Such an inference is warranted here. Respondent argues that because Martin had questioned its overtime policy in 1986 without being disciplined, it follows that her discharge in 1987 was unrelated to her protected activity. The record shows, however, that Greenland and Martin became aware of Respondent's failure to comply with state overtime regulations in Feb- ruary and thereafter insisted that Respondent comply with those requirements. Thus, it was not until mid-Feb- ruary that the conflict about overtime came to a head. Respondent's acknowledgment that it had erred in refus- ing to properly compensate for overtime preceded the discharges by only several weeks. The close nexus be- NU DAWN HOMES tween these critical events undermines Respondent's ar- gument that it had long tolerated employee criticism of its overtime policy. The abruptness of the discharges, announced in the middle of a pay period and without prior notice to two long-term employees who previously were considered valuable contributors to the Company, lends support to the conclusion that Greenland and Martin were fired be- cause of their stand on the overtime issue. In defense, Respondent contends that its financial pre- dicament compelled it to trim its office personnel and that Martin and Greenland were selected for discharge only because they were the most expendable members of its clerical staff. It is true that the Nu Dawn sister com- panies were losing money, but business necessity is not invariably a complete defense; it certainly may not be used to conceal employment decisions that are unlawful- ly motivated. Here, the Respondent's contradictory and illogical actions persuade that the selection of Greenland and Martin for discharge was not driven by its economic problems. Respondent admittedly had suffered business reverses continually since 1986. However, no climactic economic event occurred in 1987 that might explain why in early March of that year Pulley decided she could wait no longer to decimate her staff by 50 percent, thereby elimi- nating in one swoop, her two most experienced office employees. Certainly, Respondent's economic situation was not serious enough to compel Tynes to reduce his own salary by 70 percent until some 5 months after the terminations occurred. The abrupt discharges seem par- ticularly inexplicable when only a few weeks earlier Hoffman had pledged that wages would be reduced before jobs were eliminated. Indeed, Hoffman adhered to that pledge by stepping down to the position of field su- perintendent and transferring job supervisors to construc- tion work rather than discharging them. Yet, contrary to Hoffman's assurances, neither Greenland nor Martin was offered the opportunity to remain at a reduced salary. By deviating from its own proclaimed policy in firing the women, Respondent provides telling evidence that cost savings were not at the root of these actions. Respond- ent's subsequent dismissal of Winslow does not defeat this conclusion for his departure was simply one step in the complete abolition of an entire Nu Dawn operation. Pulley's alleged reasons for retaining Zulaski and Ebel- ing in preference to Martin and Greenland seem based on factors freshly marshalled at the time of trial rather than at the time of their discharges. It is significant that until March both Martin and Greenland were treated as valued employees. Martin, who came to her job with a wealth of experience, was awarded pay raises and bo- nuses. At the end of January, Pulley acknowledged that she had made a notable contribution to office procedure. Pulley's negative appraisal of Martin gust 2 months later, which supposedly rested in part on an error Martin made the previous October, is a transparent attempt to conceal the true reason for her discharge. Respondent's contention that it discharged Martin and Greenland to reduce overhead expenses was undermined by its hiring Janet Munger just 3 weeks later. If lack of funds was the real reason for Martin's dismissal (and the 559 only reason Pulley mentioned during the exit interview), then surely Respondent would have recalled a seasoned employee like Martin when funds became available enough to fill the vacancy she left. Respondent also tries to justify its action by pointing out that it hired a "full charge" bookkeeper who was more skilled in accounting than Martin. This argument, too, is unconvincing for when Martin was dismissed Respondent had no way of foreseeing who would replace her. In any event, Martin and Munger performed virtually the same sort of book- keeping chores. In addition, Respondent submits that be- cause Munger worked little overtime she was a more ef- ficient employee than Martin. Respondent may not fairly compare Martin's efficiency with Munger's when it pre- sented no evidence showing whether the quantity of office work remained the same after March. Surely the abolition of Nu Dawn Realty as a business entity had to reduce the amount of paperwork in the office. Pulley herself admitted that the number of invoices declined substantially in 1987, and Martin's improved bookkeeping procedure also had to affect the amount of overtime worked. In attempting to defend its actions, Respondent unfair- ly degrades Martin's contributions and exaggerates Zu- laski's worth. While Zulaski may be a diligent and com- petent employee, it is clear from the record that Re- spondent's positive comments about her performance relate to her work at the time of trial, a year after she joined Respondent, and not as of March 13. Evidence es- tablishes that at that earlier time, she was inexperienced, made mistakes, and was slower at performing her work than was Martin. Respondent's witnesses conveniently disregarded these deficiences when they praised her at the hearing. Pulley and Tynes accorded educational cre- dentials to Zulaski that she did not possess, and in so doing underscored the contrived quality of Respondent's defense. Similarly, Respondent found fault with Greenland's performance at trial, yet its conduct toward her prior to March 13 demonstrates that she was held in high regard. Like Martin, Greenland received raises and a bonus. Just 1 month before her rude termination, Pulley confirmed her promotion and, despite Respondent's declining for- tunes, assured Greenland that she could expect greater responsibility accompanied by increased earnings. In paying the tuition fee for Greenfield's accounting course, Respondent appeared to be investing in training her for a career position with the Company. Even acknowledging that Greenland made errors in her new position, surely, Pulley could have offered to return her to the receptionist job at which she had been "outstanding." Respondent's claim that Ebeling was a better receptionist than Greenland appears less than ob- jective. Tynes had praised Greenland's industry and her educational achievement. Further, Tynes acknowledged, her marital problem was long known in the office and viewed sympathetically; it had never prevented her ad- vancement. Moreover, if she had been offered and agreed to return to the receptionist position, Respondent would have had the benefit of an experienced reception- ist who also was well trained on the computer and was 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the process of acquiring accounting skills . If Pulley's evaluation had been genuinely neutral , Ebeling, who was new to the office and who had neither prior exposure to computer operations nor accounting training , could not reasonably be considered a more desirable employee than Greenland. In light of the foregoing considerations, I find that Re- spondent has failed to prove that it would have selected Greenland and Martin for discharge even if they had not protested its overtime policy . Respondent's financial problems appear to have been genuine , but its asserted reasons for dismissing the Charging Parties are pretextual and designed to mask an unlawful intent to penalize its employees for exercising a right protected by Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent , Nu Dawn Homes, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. By discharging Susan Martin and Modesta Green- land on March 13, 1987, because they engaged in pro- tected concerted activities, the Respondent interfered with, restrained, and coerced them in exercising rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY On concluding that Respondent has engaged in certain unfair labor practices, I find it necessary to recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. Having unlawfully discharged Susan Martin and Modesta Greenland, Respondent shall offer them rein- statement, and make them whole for lost earnings and other benefits computed on a quarterly basis from the date of discharge to the date of a proper offer of rein- statement, less net interim earnings in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).9 On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- edio ORDER The Respondent, Nu Dawn Homes, Inc., Federal Way, Washington, its officers, agents, successors, and as- signs, shall 1. Cease and desist from 9 Under New Horizons for the Retarded, supra, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C § 6621 10 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses (a) Discharging any employees because they engage in protected concerted activities for their mutual aid and protection. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Susan Martin and Modesta Greenland imme- diate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent po- sitions without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination prac- ticed against them in the manner set forth in the remedy section of this decision. (b) 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 to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the dis- charges of Susan Martin and Modesta Greenland on March 13, 1987, and notify them in writing that this has been done and that evidence of their unlawful discharges will not be used as a basis for future personnel actions against them. (d) Post at its office in Federal Way, Washington, copies of the attached notice marked "Appendix.""' Copies of the notice on forms provided by the Regional Director for Region 19, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure 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 Respondent has taken to comply. For the purpose of determining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discov- ery from the Respondent, its officers, agents, successors or assigns, or any other person having knowledge con- cerning any compliance matter , in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably related to compliance with this Order, as enforced by the court. ' I 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 " NU DAWN HOMES 561 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. Section 7 of the Act gives employees these rights. To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid of protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by the National Labor Relations Act as amended. WE WILL offer Susan Martin and Modesta Greenland immediate and full reinstatement to their former jobs or if those jobs no longer exist, to substantially equivalent positions without prejudice to their former seniority or any privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earn- ings, plus interest. WE WILL remove from our files any reference to the discharges of Susan Martin and Modesta Greenland on March 13, 1987 , and WE WILL notify them that this has been done and that evidence of their unlawful discharges will not be used in any way as a basis for future person- nel actions against them. WE WILL NOT discharge employees for engaging in concerted activities for their mutual aid and protection. Nu DAWN HOMES, INC.