Whittaker Corp.

WHITTAKER CORP. Whittaker Corporation, Kettenburg Marine Division and Milton E. Johnston. Case 21-CA-21801 Jury 18, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On June 3, 1983, Administrative Law Judge Roger B. Holmes issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent 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 only to the extent consistent with this Decision and Order. The judge found that Milton E. Johnston, the Charging Party, was discharged for the statements he made at an employee meeting called by the Re- spondent's president, Larry Miller, on November 22, 1982. The judge concluded, however, that Johnston's statements were not concerted activity within the meaning of Section 7; therefore, his dis- charge was lawful under the Act. We disagree. The facts are not in dispute. On November 22, 1982, the Respondent's president, Larry Miller, conducted a series of meetings in his office with the employees, department by department, to inform them that they would not be receiving their regular annual wage increases. At each meeting, he invited questions, and several employees asked questions about his announcement. At the last of these meetings, after Miller completed his state- ment, Johnston raised his hand and stated: Well, I don't remember us being called togeth- er when there's been a good year and saying here's something extra. But now that there's a little downturn, I feel we're being asked to bear the brunt of it by not having an increase. He further stated that, because he had not had the benefit of consulting the Company's books, he did not believe he could come to the same conclusion as the Respondent. Miller responded that the Re- spondent did not have to open its books to the em- ployees. Johnston replied that he had not asked to see the books but merely stated that they were a source of information that he did not have. No other employee commented at the meeting on the wage policy; however, several employees ex- pressed agreement with Johnston's comments after- wards. In reaction to Johnston's comments, the Re- 933 spondent discharged him the next day for insubor- dination. The Board held in Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers 1), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986) (Meyers II), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 128 LRRM 2664 (June 20, 1988), that "in general, to find an employee's activity to be `concerted,' we shall require it to be engaged in with or on the au- thority of other employees, and not solely by and on behalf of the employee himself." The Board thereby overruled Alleluia Cushion Co., 221 NLRB 999 (1975), and similar cases which held that the individual assertion of a matter "of common con- cern" to other employees was concerted activity.' The Board cautioned, however, that the definition of concerted activity we set forth . . . is by no means exhaustive. We ac- knowledge the myriad of factual situations that have arisen, and will continue to arise, in this area of the law. We also emphasize that, under the standard we now adopt, the question of whether an em- ployee engaged in concerted activity is, at its heart, a factual one . . . . [268 NLRB at 496- 497] Specifically in Meyers I, 268 NLRB at 494, and again in Meyers II, 281 NLRB 882, we reaffirmed Root-Carlin, Inc., 92 NLRB 1313, 1314 (1951), and other cases holding that "the guarantees of Section 7 of the Act extend to concerted activity which in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization." Thus, the "ac- tivity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much `concerted activity' as is ordi- nary group activity." Owens-Corning Fiberglas Corp. V. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969). Such individual action is concerted as long as it is "engaged in with the object of initiating or inducing . . . group action . . . ." Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).2 Furthermore, the object of inducing group action need not be express. For instance, "[i]t is ob- vious that higher wages are a frequent objective of organizational activity, and discussions about wages are necessary to further that goal." Jeannette Corp. V. NLRB, 532 F.2d 916, 918 (3d Cir. 1976). i We therefore do not rely on the judge's discussion of such cases. 2 See also Vought Corp., 273 NLRB 1290, 1294 (1984), enfd 788 F 2d 1378 (8th Cir. 1986) 289 NLRB No. 116 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "[D]issatisfaction due to low wages is the grist on which concerted activity feeds." Id. at 919. Particularly in a group-meeting context, a con- certed objective may be inferred from the circum- stances. Indeed this case is strikingly similar to En- terprise Products, 264 NLRB 946 (1982), in which the Board found an employee's statements in analo- gous circumstances concerted. There, an employer called a meeting to ask employees to increase their productivity and to offer in exchange tickets to athletic or public amusement events. At this meet- ing the employer also told employees that it could not increase their wages or give them their custom- ary annual bonuses. The employer asked the em- ployees' opinion of its incentive proposal, and one employee responded, "No more money, no more production." For this he was discharged. The Board found the remark to be concerted ac- tivity, noting that it concerned a common condi- tion of employment and that the meeting was the employees' first opportunity to protest the employ- er's proposal. Id. at 947-948. Moreover, the em- ployer there, by calling the meetings and soliciting the employees' responses, had "lumped [them] to- gether and viewed [them] as a group." Id. at 949, quoting Frank Briscoe, Inc. v. NLRB, 637 F.2d 946, 949 (3d Cir. 1981). The Board adopted the administrative law judge's decision in Enterprise Products, 264 NLRB at 949, in which it was conceded that: Cibrian's [the charging party] remarks had not constituted an overt appeal to his coworkers in the sense of having taken over the meeting, Brutus-like, to make an address to them seek- ing sympathy and support. . . . Cibrian had been the first employee whose opinion had been sought . . . . Accordingly, an employee in Cibrian's position likely would be aware that his reasons would be heard and consid- ered by those who would answer after him. Thus, that he had directed his answer to [the respondent's president] would not have made him oblivious of its effect on other employees present . . . .3 Here, the Respondent's president called together the employees to announce that their anticipated wage increases would not be forthcoming. As these meetings provided the employees with their first knowledge of the Respondent's decision to suspend 8 See also Autumn Manor, 268 NLRB 239, 244 (1983); F W Wool- worth Co, 251 NLRB 1111 , 1114-1115 (1980), enfd 655 F2d 151 (8th Cit. 1981), J. P. Stevens & Co, 219 NLRB 850 (1975), enfd. 547 F 2d 792 (4th Cr 1976), Rinke Pontiac Co, 216 NLRB 239 (1975), Prescott Indus- trial Products Co, 205 NLRB 51 (1973), enfd as modified 500 F.2d 6 (8th Cr 1974); Hugh H. Wilson Corp., 171 NLRB 1040, 1046 (1968), enfd 414 F 2d 1345 (3d Cr 1969); Guernsey-Muskingum Electric Corp, 124 NLRB 618 (1959), enfd 285 F 2d 8 (6th Cr 1960) the wage increases, they were also the employees' first opportunity to comment on or protest that action. Johnston, not having had a chance to meet with any employee beforehand, made his state- ments as a spontaneous reaction to the Respond- ent's announcement. He phrased his remarks not as a personal complaint, but in terms of "us" and "we." Obviously, they were addressed to everyone assembled to discuss the topic of the proposed wage increase suspension, including his fellow em- ployees.4 His statements implicitly elicited support from his fellow employees against the announced change. We find that, in the presence of other employees, Johnston protested, at the earliest opportunity, a change in an employment term affecting all em- ployees just announced by the Respondent at that meeting. This is clearly the initiation of group action as contemplated by the Mushroom Transpor- tation line of cases which was specifically endorsed by Meyers II, supra. The judge erroneously concluded that Johnston did not engage in concerted activity because he did not try to enlist group support after the meeting and because actual group activity did not occur. In the context here, these facts are irrelevant. An em- ployee does not have to engage in further concert- ed activity to ensure that his initial call for group action retains its concertedness. In addition, em- ployees do not have to accept the individual's invi- tation to group action before the invitation itself is considered concerted.5 El Gran Combo, 284 NLRB 1115 (1987); Mushroom Transportation Co., supra at 685. In light of all the circumstances, we find that Johnston's remarks at the November 22 meeting were concerted activity protected by Section 7 of the Act. Accordingly, his discharge violated Sec- tion 8(a)(1). AMENDED CONCLUSION OF LAW By discharging Milton E. Johnston on Novem- ber 22, 1982, in retaliation for his protected con- certed activity, the Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it 4 As one employee testified, Johnston "probably said something the rest of us didn't have the nerve to say . " I Nevertheless, Johnston's statements did elicit such support, albeit, after the meeting This postmeeting support shows that other employees interpreted Johnston's remarks the same way we have WHITTAKER CORP to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order it to offer Milton E. Johnston immediate and full reinstatement to his former job, with backpay to be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded.' We shall also order the Respond- ent to remove any reference to the discharge from its files. Sterling Sugars, 261 NLRB 472 (1982). ORDER The National Labor Relations Board orders that the Respondent, Whittaker Corporation, Ketten- burg Marine Division, San Diego, California, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging any employee for making state- ments to enlist support from employees to protest terms or conditions of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Milton E. Johnston immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its San Diego facility copies of the at- tached notice marked "Appendix."7 Copies of the 6 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 7 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 935 notice, on forms provided by the Regional Direc- tor for Region 22, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able 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 Respondent has taken to comply. 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 National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge any employee for making statements to enlist support from employees to protest terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Milton E. Johnston immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. WHITTAKER CORPORATION, KETTEN- BURG MARINE DIVISION Robert R. Petering, for the General Counsel. Roy E. Potts and Robert C. Hayden, Esgs. (Overton, Lyman & Prince), of Los Angeles, California, for the Respondent. DECISION ROGER B. HOLMES, Administrative Law Judge. The unfair labor practice charge in this case was filed on De- cember 6, 1982, by Milton E. Johnston. The General Counsel's complaint was issued on Janu- ary 7, 1983, against Whittaker Corporation, Kettenburg Marine Division. The General Counsel alleges in his complaint that the Respondent has engaged in conduct that violates Section 8(a)(1) of the Act. In summary, the General Counsel alleges that the Respondent terminated employee Milton E. Johnston from employment on No- vember 23, 1982, and since that time, has failed to rein- state him because Johnston had engaged in conduct pro- tected by Section 7 of the Act. In the answer to the complaint allegations, the Respondent denied the com- mission of the alleged unfair labor practices. The trial in this proceeding was held on April 6, 1983, at San Diego, California. The time for the filing of post- trial briefs was set for May 11, 1983. The counsel for the General Counsel and the attorneys for the Respondent filed briefs, which were argued persuasively from their respective points of view. FINDINGS OF FACT 1. JURISDICTION The jurisdiction of the Board over the business oper- ations of the Employer is not an issue in this proceeding. The Employer is engaged in the operation of a boat and yacht repair facility at San Diego, California. The Em- ployer's business operations meet the Board's direct inflow jurisdictional standard. II. THE WITNESSES AND CREDIBILITY RESOLUTIONS Five persons were called to testify as witnesses during the trial of this proceeding. In alphabetical order by their last names, they are Milton E. Johnston, who is the Charging Party and the alleged discriminatee in this case; Gary A. Klers, who has been employed by the Respond- ent for the past 17 years and who was a supervisor for the Employer at the time of the trial; Linda Bodenhamer Klers, who has been the personnel administrator for the Respondent for the past 4-1/2 years; Larry E. Miller, who is the president of the Respondent; and Albert G Schmidt, who is an electrician and who has worked for the Respondent for the past 2-1/2 years. The findings of fact to be set forth in the sections to follow will be based on portions of the testimony from each of the five witnesses who testified at the trial, and findings will be based on documentary evidence and a tape recording introduced during the trial proceedings. It should be noted at the outset of this decision that a sub- stantial number of the facts are not in dispute. However, the recollections of some of the witnesses differed con- cerning some of these past events. Understandably, in view of the passage of time between the occurrence of the events and the time of the trial, some witnesses were able to recall some things better than others. In addition, I have considered the fact that the witnesses viewed the events as they occurred from their own perspective, and this may explain some of the differences among the wit- nesses when they related their accounts at the trial. In relying on certain portions of the testimony from each witness, I have also considered the demeanor of the witness on the stand during the trial; the consistency of the witness' account when it is considered in the context of the testimony from other witnesses and certain facts, which are not in dispute; the ability of the witness to recall the events in question because at times some wit- nesses were not as certain in recalling a particular event; and the employment position of the witness in the sense that a witness was identified more closely with one of the parties and therefore may have had a potential inter- est in the outcome of the litigation. With the foregoing in mind, I have based the findings of fact on the portions of the testimony that seem to me to be credible, accu- rate, and reliable. (See, for example, Krispy Kreme Doughnut Corp., 245 NLRB 1053 (1979), regarding the acceptance of some, but not all, of the testimony of a witness.) Although all the testimony and the documenta- ry evidence introduced at the trial have been considered, the findings of fact to be set forth will be limited to the credited evidence in the proceeding. (See, for example, ABC Specialty Foods, 234 NLRB 475 (1978).) III. THE EVENTS IN NOVEMBER 1981 Milton E. Johnston worked as a machinist for the Em- ployer from January 1972 until his termination from em- ployment on November 23, 1982. Introduced into evidence as the General Counsel's Ex- hibit 5 was a copy of a petition, which Johnston had pre- pared, and which Johnston began circulating among em- ployees of the Employer on November 16, 1981. The handwritten document consists of four pages, and it is dated November 16, 1981. The document expresses the employees' appreciation for the Company's granting of a retroactive pay raise, and it also asks for the Company's consideration of additional fringe benefits for the em- ployees. The fringe benefits mentioned in the document pertain to adding six paid holidays over a 3-year period to the time between Christmas Eve and New Year's Day, and also to implementing a plan of $75 a week pay- ments in the event of an accident, hospitalization, or after the eighth day of an illness. Johnston's name ap- pears on page 3 at the top of a list of 11 names. On the second day that Johnston circulated the peti- tion, Bob Ballinger told Johnston that he wanted John- ston to accompany him to Miller's office. Miller had heard from a supervisor that Johnston was unhappy, that Johnston had been doing a lot of complaining, and that WHITTAKER CORP. 937 Johnston was passing something around. (See Tr. 70-71.) Johnston, Ballinger, and Miller were the persons who were present in Miller's office during the conversation. Johnston testified (Tr. 26-27): Mr. Miller addressed me on the subject of equity among-of the other divisions of the corporation and other yards in the area regarding increases in the benefits and salaries. And he wanted me to un- derstand that Kettenburg was a seperate [sic] entity and that we could not necessarily enjoy the same benefits that other divisions of the corporation had and keep pace with other yards in the area. And they felt that if he talked to me personally and ex- plained to me, that it would [be] a better situation. At the trial, Johnston acknowledged that he had never delivered the petition to the Company. Miller testified that he had not seen the General Counsel's Exhibit 5 prior to the time that the document was handed to him on the witness stand at the trial. According to Miller, the conversation he had with Johnston in November 1981 and the rumor he had heard that Johnston may have been circulating a petition in November 1981, had no effect on Miller's decision a year later in November 1982 to terminate Johnston from employment with the Com- pany. (See Tr. 71.) IV. THE EVENTS BEGINNING IN JANUARY 1982 Beginning in January 1982, Johnston was granted a leave of absence from work at the Company. According to Linda Klers, the Company basically grants a 30-day leave of absence, but with another 30 days for medical leave. She stated (Tr. 52): And in Mr. Johnston's case, he had given us in- formation that he would be back within a specified period of time, and that had been changed three or four different times whenever we could reach him to find out when, indeed, he could come back. And it basically extended from the latter part of January to the first part of May, so we just don't normally have leave of absences of that extent, nor do we continue to employ that individual . He would have been in a layoff status, and we would have em- ployed someone else in his place. According to Miller, the Company's policy normally is to terminate an employee if the employee overstays his leave of absence. Miller explained that the Company would not know whether such an employee would ever return to work, and, therefore, the Company replaces the employee . Miller stated that it was reported to him that Johnston had overstayed his leave of absence. When Miller was questioned at the trial regarding why the Company did not terminate Johnston when he had over- stayed his leave of absence , Miller replied, "Frankly, I don't know." V. THE EVENTS ON MONDAY, NOVEMBER 22, 1982 On Monday, November 22, 1982, Company President Miller held separate meetings with about four or five groups of employees from various departments at the fa- cility. Regarding his purpose for holding those meetings with employees, Miller said at the trial, "Purpose of the meeting was to advise the employees that I decided that our division in total would not be receiving an increase in their hourly rates." Miller did not speak to the differ- ent groups from a prepared text, but he attempted to convey the same words to each group. He conducted each meeting in the same manner and with the same format. Each meeting lasted for approximately 15 or 20 minutes. After Miller had spoken to the employees and invited questions from them in one of the meetings, an employee named Buroyo told Miller that the most important thing was for the employees to get a full 40-hour workweek. Miller said that Buroyo also stated at the meeting that Buroyo understood how difficult it was because all the other people in the area were charging less than the Company was charging, and that, if he could get 40 hours a week, he would be happy. Miller also recalled a comment from another employee in one of the meetings. That employee was fearful that the Company was going into a deeper trough from an economic standpoint. The employee wondered why the Company did not reduce its rates to a level comparable to the rates charged by other companies in the area. Miller further recalled that still another employee asked him to repeat "when it was that I was going to review this situation for wages again, and I answered him, six to nine months." All the foregoing took place before the last meeting of employees on November 22, 1982, which was the meet- ing at which Johnston was present. That last group met with Miller about 2:45 following the afternoon break period. The employees were from the machine shop de- partment and the engine repair department. About 9 or 10 employees were in that group. Miller recalled how the meeting began on that occa- sion. He stated (Tr. 82): Well, when everybody came into the room, my office's not too large, but when everybody came into the room I said I had chairs around and I said, "Okay, gentlemen, grab a chair." Well, Milt went up to the chair that was next to my office and he grabbed it and he shook the chair, and I think I might have said, "What's this?" Miller then spoke to the employees who were present in that last meeting. He testified (Tr. 74, 76, and 77): Okay. The purpose of this meeting is to advise you that after careful consideration and thought, that it will not be possible for the employees of Kettenburg Marine Divion [sic] to receive an in- crease in your pay at this time. And the reason for this is that the rate of increase that I would typically put through at this time of year, if-if done, would cause our charging rate to go from thirty-three fifty an hour currently to ap- proximately thirty-six dollars. We're in the midst of 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the highest unemployement [sic] of people in the boat repair and ship repair in San Diego that we've been in in many years, and we're in the midst of the worst economic downturn that this country has dealt with since World War II. And the reason for not putting through these increases at this time is that I am sure that if we charge thirty-six an hour instead of the thirty-three fifty, which is already high compared to the competition, that we would be effectively driving jobs away from this business, working a hardship on the employees as well as the company in lost revenues and lost wages for em- ployees. The other part of the-the other part of my talk was that-that because of the fact it's difficult at this point to know what the near term future holds, I'm going to review this situation in the next six to nine months and have another look at it, and I sin- cerely hope that at that point in time, that I'll have more confidence in the market and the general economy, and that some type of an increase will be possible at that time. And I also want you to know that this not only affects you as the hourly workers of this company, but it affects myself. I will not take an increase, nor will anybody that works for me till this period of time is over . . . [until] I feel that it's wise for the business to resume with in- creases and charging rates, as well as increases for hourly rates, for the employees. I think that is about all I said. Johnston said that he made his comments to Miller at the meeting after Miller had stopped and appeared to be waiting. Johnston said, "I raised my hand and was ac- knowledged and spoke." Johnston stated at transcript 108 regarding his comments to Miller at the meeting: Well, I don't remember us being called together when there's been a good year and saying here's something extra. But now that there's a little down- turn, I feel we're being asked to bear the brunt of it by not having an increase. Johnston further testified (Tr. 109) regarding his com- ments at the meeting: . . . and I believe I said that I don't have the benefit of the books, so I cannot-I don't believe that I can come to the same conclusion that you can. At that time, Mr. Miller directed a statement to me that a company does not have to open its books and is not about to open its books to its employees. I replied in that I had not asked to see the books, but as a sorce [sic] of information that I didn't have. Q. In other words, it's your testimony that as to that exchange and your comments about the books, you were speaking in the first person, you were saying "I," you weren't saying "employees"? A. That is true. According to employee Schmidt who was present at that meeting, Miller then asked if there were other ques- tions. Dick Harris brought up the subject of the back gate at the facility being locked, which prevented the employees from having access to the parking lot. Miller asked Ballinger if the gate could be opened in the morn- ing and in the evening so that the employees could use it to get in and out. Ballinger said it could be done. After the meeting had concluded, some of the employ- ees talked about the meeting. Schmidt said, "Well, I think we felt that Milt had probably said something the rest of us didn't have the nerve to say, and that he had been misunderstood by Mr. Miller." (See Tr. 104.) At the trial, Schmidt expressed his feelings that Johnston's comments were not appropriate. Schmidt said that John- ston was not present during that conversation after the meeting. There is no evidence that Miller or any other company management or supervisory person was made aware of the conversation described by Schmidt. Miller was the one who made the decision to termi- nate Johnston from employment. At the trial, Miller stated his own reaction to the comments that Johnston had made at the meeting. "My reaction was that it was a rather insubordinate action . . . and that it was an af- front on my word and . . . another way of indicating, perhaps, that I wasn't being truthful." (See also Tr. 65- 66 where Miller gave his views and see Tr. 58-63 and 66-68 regarding the receipt into evidence, over timely objection, of the testimony regarding Miller's opinion of Johnston's comments at the meeting.) During the same afternoon of the meeting, Miller called Linda Klers into his office. Miller told her what had happened in the meeting and his reaction to the comments. He also said he was considering the termina- tion of the employee who made the comments, and he asked for her views regarding whether there were any problems involved in terminating the employee. Accord- ing to Miller, Linda Klers advised him that she did not perceive any problems. He said, "Then I told her to pre- pare the documents for termination." VI. THE EVENTS ON TUESDAY, NOVEMBER 23, 1982 In accordance with her standard procedure at the Company, Linda Klers prepared the papers relating to the termination of Johnston from employment . Intro- duced into evidence as the General Counsel's Exhibit 2 was a copy of the Employer' s "Separation Report" re- garding Johnston. Klers typed the document, and she took it to Miller for his approval. At that time, Klers also asked Miller some questions. During her testimony at the trial, the following occurred, which is reflected at transcript 50: Q. Did you at that time ask him anything further about what had happened at the meeting? A. Yes, I did. I wanted to know for my own self if there was any-when Mr. Johnston had made the comment, if there had been anyone else making any kind of pains, or did anybody gasp, or did anybody just not believe that he had made that comment, or was there any kind of reaction from anyone else in the room, and he said, absolutely, that the comment was made, and that that was the extent of it. Q. What was the reason for that inquiry? WHITTAKER CORP. 939 A. Well, just because it's part of my job, and the fact that I possibly-because of the concerted activ- ity, and I try to look at all aspects of any kind of a termination. Miller approved the "Separation Report" at that time, and he also signed Johnston's final paycheck. In part, the General Counsel's Exhibit 2 shows the following con- cerning the Employer's reason for the termination: Mr. L. E. Miller, Company President, called a group meeting to inform employees that there would be no salary increase at this time. Mr. John- ston challenged that decision, stating he did not know whether he could accept the decision or not without examining the books and records of the Company. Such comments are not in the best inter- est of our Company. About 5 minutes before 4 p.m. on Tuesday, November 23, 1982, Johnston was told by his supervisor, Byron Burkhardt, to report to the office of Linda Klers. In her office, she informed Johnston that he was being separat- ed from the Company, and that the information was con- tained in the "Separation Report." She then gave him a copy of the document. According to Klers, Johnston made the comment to her, "that's not what he had meant." Klers told Johnston that his supervisor was waiting for him in the shop area in order to make ar- rangements for Johnston to pick up his tools. Johnston then left Klers' office and talked with Burkhardt. John- ston made arrangements to return to the facility the next day in order to pick up his tools and clean out his locker. VII. THE EVENTS ON WEDNESDAY, NOVEMBER 24, 1982 On Wednesday, November 24, 1982, Johnston re- turned to the Employer's facility. He got his tools and cleaned out his locker. After he had done those things, Johnston asked Burkhardt if he could use the telephone in the office in order to call upstairs to see if he could have a talk with Miller. Burkhardt informed Johnston that Miller already had left for the Thanksgiving holi- day. VIII. THE EVENTS ON MONDAY, NOVEMBER 29, 1982 On Monday, November 29, 1982, Johnston went to the Employer's office around 11 a.m. and asked a secretary if he could see Miller. She replied that Johnston could see Miller, but he was busy on the telephone at that moment. Johnston waited, and then he had a conversation with Miller in his office. Introduced into evidence as the General Counsel's Ex- hibit 4 was a microcassette containing a tape recording made by Johnston of his conversation with Miller on November 29, 1982, in Miller's office. There are what appear to be other conversations and other matters on the tape recording. To avoid any misunderstanding, the only portion of the tape recording that was actually re- ceived in evidence pertains to the conversation between Johnston and Miller, which is the first conversation on side A of the cassette. The other conversations and other matters are not part of the record in this case, and they have been disregarded. (In an earlier case before me, issues regarding the admissibility of two secretly made tape recordings were discussed. See Plumbers Local 598 (Rust/W.S.H.), 255 NLRB 450 (1981).) Introduced into evidence as the General Counsel's Ex- hibit 3 was a typed transcript made by Johnston of his tape recording, which was introduced as the General Counsel's Exhibit 4. The transcript appears to be substan- tially accurate in reflecting what is discernible from the tape recording. There are a few words that are not so loud or so clear as to be free from doubt when the re- cording is played on ordinary office equipment. In summary, Johnston asked Miller on November 29, 1982, for a letter of recommendation from the Company. Miller agreed to prepare such a letter and to have it ready for Johnston by the next afternoon. Johnston then asked to discuss the subject of his dis- missal. Miller agreed to do so. Johnston expressed his view that his dismissal "was rather highhanded and dic- tatorial as far as what, to me, was a comment to a state- ment you made upon request for comment." Miller ex- pressed his view that Johnston's comment about examin- ing the Company's records was "just another way of saying to me, well, I don't believe you." Miller was of the opinion that if he had to "put on a seminar about ev- erything that's done," that would be all he would be doing. Miller also expressed his view that "if somebody feels they need, after I say something, to check the records to see about that, well, that's a real problem." Johnston expressed his view that he had not made a request at the meeting to examine the Company's books. Johnston said that although his first statement at the meeting could have been misunderstood, he also said at the meeting that he did not ask to see the Company's books after Miller stated something to the effect that no company was going to open its books. Johnston further said, "I was making a statement and commenting that I could not come to the same conclusions as you do be- cause I do not have the same sources of information." Miller stated his view that he could not have a situa- tion where a person was doubting that Miller was telling the truth. Miller related that he had agonized over the matter for 3 months, and he realized that he had to do what he did for the welfare of the Company and the em- ployees. Miller pointed out the decision applied to every- one in the Company. Miller expressed the view that work in the repair yard was "very price sensitive," and that the Company's billing rate was not going to increase because of the "tough economy" into 1984. Miller said Johnston was "welcome to your opinions," but Miller wanted people "that trust what I'm saying the way it is, and that's that." Miller added, "And that's the only thing I've been telling people since I've been here is the truth." Miller told Johnston that he would comment in the letter of recommendation about the quality of Johnston's work and his tenure with the Company, and that he would not put in any comment about the incident or anything "negative at all." 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IX. CONCLUSIONS In its decision in Hawthorne Mazda, 251 NLRB 313, 315 (1980), the Board held: Section 7 of the Act guarantees employees the right to engage in "concerted activities for the pur- pose of mutual aid or protection." It is axiomatic that employees who band together for the purpose of presenting grievances to their employer are en- gaged in protected, concerted activity within the meaning of Section 7.24 It follows that an individ- ual employee's attempt to induce fellow workers to join in a petition regarding a common grievance is protected activity.25 Similarly, an employee en- gages in protected activity when he presents to the employer grievances on behalf of other employ- ees. 2 6 24 See N.LR.B. v Washington Aluminum Company, Inc., 370 U.S 9 (1962). 25 Owens-Corning Fiberglas Corporation v N.L.R B., 407 F.2d 1357, 1365 (4th Cir. 1969), Salt River Valley Water Users' Associa- tion v N.LR.B., 206 F.2d 325 (9th Cir. 1953) 26 N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 285 F.2d 8 (6th Or. 1960); Hugh H. Wilson Corporation v. N.LR.B., 414 F.2d 1345, 1348 (3d Cir. 1969) In its decision in Mills Patrol Service, 264 NLRB 323, 324 (1982), the Board observed, "In order for activity to be protected by Section 8(a)(1), it must be concerted in nature." In a case that involved union activities, the Board stated, "Employees promoting a union are by that action engaged in protected concerted activities, and in- dividual acts in furtherance of that objective do not lose their protection merely because others are not consult- ed." Ohio Valley Graphic Arts, 234 NLRB 493 (1978). Among the cases which are relied on by the General Counsel is the Board's decision in Alleluia Cushion Co., 221 NLRB 999 (1975). With regard to its Alleluia Cush- ion decision, the Board stated in Pink Moody, 237 NLRB 39 (1978): In Alleluia Cushion, supra, we held that where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such representation, we will find implied consent thereto and deem such activity to be concerted. In Air Surrey [229 NLRB 1064 (1977)], we found as con- certed activity an employee's individual inquiry at his employer's bank as to whether the employer had sufficient funds on deposit to meet the upcoming payroll, because the matter inquired into by the em- ployee was of vital concern to all employees. And in Dawson Cabinet Company, Inc., 228 NLRB 290 (1977), we extended the Alleluia Cushion principle in order to find as concerted activity a female em- ployee's individual refusal to perform a certain job unless she was paid the same wages as a male em- ployee doing the same job, because the employee was attempting to vindicate the equal pay rights of the female employees. There are, of course, many Board decisions where the Alleluia Cushion legal principle has been applied. In an earlier case before me, the legal principle was applied to an employee's making a complaint about carbon monox- ide fumes in the work area to the Department of Health and Environmental Sciences of the State of Montana. Bighorn Beverage, 236 NLRB 736 (1978). The United States Court of Appeals for the Ninth Circuit did not agree with that portion of the holding. 614 F.2d 1238 (1980). In another case before me, the Alleluia Cushion legal principle was applied to an employee's filing of a complaint with the California Fair Employment Prac- tices Commission. However, the Board found actual con- certed activity, as distinguished from an Alleluia Cushion theory, regarding the events at the meeting held on May 22, 1979, "when Johnson [the Charging Party in that case] asserted that she should be paid as much as the male business agents, other union members joined with her and protested that it was unlawful for Respondent to pay her less than the men." Hotel & Restaurant Employ- ees Local 28, 252 NLRB 1124 (1980). In Diagnostic Center Hospital Corp., 228 NLRB 1215 (1977), the Alleluia Cushion legal principle was applied where an employee had written a letter to the company's chairman of the board regarding a 10-percent wage in- crease and in protest of "alleged practices of `racism, sexism and favoritism."' See also the Board's decision in Self Cycle & Marine Distributor Co., 237 NLRB 75 (1978), regarding an employee's filing of an unemploy- ment compensation claim with a state agency. See fur- ther the Board's decision in Michigan Metal Processing Corp., 262 NLRB 275 (1982), regarding two employees jointly filing a complaint with the Occupational Safety and Health Administration. As indicated above, there are many Board decisions where the Alleluia Cushion legal principle has been ap- plied. The foregoing cases are by no means intended to be an exhaustive list. Instead, they illustrate the type of activity where the Alleluia Cushion legal principle has been applied. To paraphrase and to summarize Johnston's statements to Miller at the meeting on November 22, 1982, his state- ments were to the effect that: (1) employees of the Com- pany had not been called together and given "something extra" when the Company had experienced a good year, but the employees were being asked to bear the brunt of an economic downturn by not receiving an increase; (2) that Johnston did not have the benefit of seeing the Company's books, so he could not come to the same conclusion that Miller had reached; and (3) that Johnston had not asked to see the Company's books, but that he did not have the Company's books as a source of infor- mation. (See sec. 5 for the complete findings of fact.) Insofar as the record shows, Johnston acted alone in making his statements to Miller at the meeting. For ex- ample, he did not seek support from other employees either before or after the meeting. That observation is not made in the sense of being critical, but simply to re- flect the circumstances in which the comments were made. It is significant that no other employee joined in Johnston's statements during the meeting, or in any way WHITTAKER CORP. indicated group action or approval of his statements at the meeting. Afterward, there was some conversation about Johnston's comments. That was described by Schmidt. However, Johnston was not a participant in that conversation, and there is no evidence of company knowledge of that conversation among the employees at the time that the Company terminated Johnston. Al- though some other employees made comments to Miller during the various meetings Miller held that day, the subject matter of their comments did not pertain to the subject matter of Johnston's comments. For example, note the finding in Rinke Pontiac Co., 216 NLRB 239, 242 (1975), "As indicated above, Terpevich's [the Charg- ing Party in that case] activity at the October 25 meeting was essentially a continuation of the group discussions in which he and other salesmen participated among them- selves following the Respondent's institution of the new insurance program with its incentive pay features." In addition, note also the following: "Moreover, it appears that Terpevich was not alone in raising questions about the pay plan at this meeting. Salesman Fuhrman also challenged its legality." There was no collective-bargaining agreement applica- ble to the employees of the employer at the times materi- al, and thus Johnston was not seeking to enforce the terms of a collective-bargaining agreement in making his comments to Miller at the meeting. In addition, the cir- cumstances here are different from those where an em- ployee was attempting to assert a right to ask a question of the Employer at a meeting prior to a representation election, and the Board found that the employee was "presenting such a grievance in protesting that he had been improperly forbidden the opportunity to ask a ques- tion which he thought would aid himself and his fellow employees in making a decision as to a collective-bar- gaining representative." Prescott Industrial Products Co., 205 NLRB 51 (1973). The events, which occurred in November 1981 and which are described in section 3 of this decision, are remote in point of time insofar as the termination of Johnston on November 23, 1982, is concerned. A link or connection between the events in November 1981 and 941 the events in November 1982 has not been established. The Respondent points out that no adverse action was taken by the Company against Johnston in November 1981. Furthermore, the Respondent points out that John- ston took an extended leave of absence from work begin- ning in January 1982, but the Company took no action to terminate Johnston despite the Company's usual policy to do so in such circumstances. Thus, the foregoing is some indication that Miller did not harbor animosity toward Johnston because of Johnston's activities in No- vember 1981. In contrast, see the Board's decision in Hansen Chevrolet, 237 NLRB 584 (1978), where the time period involved was only 4 days. At 589, it is stated: "In any event, Prescott [the supervisor who made the deci- sion to terminate the employee] knew that only 4 days before, Suggs [the Charging Party in that case] had been actively soliciting other employees to loin in a concerted effort to obtain a change in the pay and fringe plans, and that Suggs still wished to write Mann [the company president] a letter." After considering the foregoing, I conclude that the statements made by Johnston at the meeting held on No- vember 22, 1982, do not constitute protected concerted activities within the meaning of the National Labor Rela- tions Act. I further conclude that the Employer's termi- nation of Johnston on November 23, 1982, because of the statements made by him on the previous day, did not violate Section 8(a)(1) of the Act. Accordingly, I must recommend to the Board that the General Counsel's complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an Employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent has not engaged in the unfair labor practices alleged in the General Counsel's complaint in this proceeding for the reasons which have been set forth above. [Recommended Order for dismissal omitted from pub- lication.]