Ebon Research Systems

EBON RESEARCH SYSTEMS Florence J. Hicks d/b/a Ebon Research Systems and American Federation of Government Em- ployees, Local 3430, AFL-CIO. Cases 6-CA- 15463, 6-CA-15766, and 6-RC-9248 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On December 21, 1983 , Administrative Law Judge Donald R. Holley issued the attached origi- nal decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions, a supporting brief, and an answer- ing brief. On July 24, 1986, the Board issued an order re- manding this proceeding to the judge for further consideration consistent with Res-Care, Inc., 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 678 (1986). On March 23, 1987, after a reopening of the record, the judge issued the at- tached supplemental decision asserting jurisdiction over the Respondent. The Respondent filed excep- tions and a supporting brief. The General Counsel filed a reply brief and motion to strike , in whole or in part, the Respondent's exceptions and supporting brief, and the Charging Party filed cross-exceptions and a supporting brief and an answering brief to the Respondent's exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings,2 and conclusions in both i The General Counsel's motion included a request that the Board strike exhibits attached to the Respondent's brief in support of its excep. tions to the judge's supplemental decision. The General Counsel contends that "Exhibits" 1, 2, 7, and 8 were not presented as evidence at the re- opened hearing or subjected to cross-examination, have not been shown to constitute newly discovered evidence , and should not be made a part of the record in this proceeding. We find merit in the General Counsel's contention and grant the motion to strike such material. 2 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 U.S.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). ® The judge relied on T.R. W, Inc., 257 NLRB 442 (1981), in finding that the Respondent promulgated and distributed an unlawfully over- broad no-solicitation rule. In Our Way, Inc., 268 NLRB 394 (1983). which issued subsequent to the judge 's decision, the Board overruled T.R.W. We rely on Our Way to reach the same result . We note that the Respondent's rule fails to distinguish adequately between duty time and duty hours and does not state with sufficient clarity that employees may solicit on their own time. 751 decisions, as modified, and to adopt the recom- mended Order as modified. The Respondent is a research consulting firm that obtains most of its work through subcontracts with the Small Business Administration (SBA). As set forth in the judge's decisions, during 1981 and 19824 the Respondent, as a minority subcontractor for the SBA, performed services for the National Institute of Occupational Safety and Health (NIOSH) at its Morgantown, West Virginia facili- ty, pursuant to four contracts with U.S. Govern- ment agencies.5 In late March or early April, Cindy Moore, one of the Respondent's technicians, approached Mi- chael Zulkoski, a NIOSH maintenance employee and the president of the Union, to ascertain wheth- er the Union could represent the Respondent's technicians. Zulkoski replied affirmatively and gave Moore authorization cards that she distributed among technicians. On April 7, a majority of the Respondent's employees gave Zulkoski signed cards. On April 14, the Respondent's project coor- dinator Ed McCabe overheard a conversation con- cerning unionization of the Respondent's employ- ees. He, thereafter, unlawfully interrogated em- ployees both individually and as a group concern- ing, inter alia, who had solicited them.6 Employee Long told McCabe that Moore had solicited him. 4 All dates refer to 1982 unless otherwise indicated. s These contracts are subject to the Service Contract Act. The fact that an employer is a contractor subject to the terms of the Service Con- tract Act does not mean, however, that the Board will decline to assert jurisdiction over that employer. See Dynaelectron Corp., 286 NLRB 302 (1987). In its exceptions to the judge's supplemental decision, the Respondent also disputes the judge's finding in his supplemental decision that none of these contracts contain provisions controlling the maximum wages and fringe benefits it can award to its employees, specifically citing references in one of the contracts to maximun total compensation for each hour a librarian and library aide worked. We reject this argument because there is no evidence that the exempt entity can disallow the payment of higher wages than the hourly maximum provided for in the contract . See Old Dominion Security, 289 NLRB 81 , 82 (1988). To the contrary, a Govern- ment contract procurement specialist testified that under any one of the contracts the Respondent could set wages higher than contract compen- sation rates, which might be paid, for example, out of corporate profits. Further, as salaries, expenses, overhead, and profit compose the compen- sation rates under the library contract, with no provisions as to their allo- cation, it is apparent that the Respondent has some measure of control in determining benefit amounts even within the specified hourly rates. See Community Interactions-Bucks County, 288 NLRB 1029, 1030 (1988). Accordingly, we conclude, in agreement with the judge, that the Re- spondent's discretion in determining its employees' wages and benefits under any one of the four contracts, including the library contract, com- bined with its broad independent authority in labor matters other than employee remuneration, demonstrates that it retains sufficient control over its employees' terms and conditions of employment to engage in meaningful collective bargaining. " In agreement with the judge, we conclude that McCabe unlawfully polled employees concerning union membership and activities on April 14. We note, in addition, that McCabe's individual questioning of em- ployees on that same date constituted unlawful interrogations under the standards enunciated in Rosrmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), which issued subsequent to the judge's decision. 290 NLRB No. 84 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On April 9, Moore experienced discomfort while working in the pathology lab under a ventilation hood designed to remove gaseous fumes from the work area. NIOSH employees working in the area noticed an excessive buildup of formaldehyde fumes. NIOSH employee Tucker advised Moore to leave the room if the fumes persisted. Moore testi- fied that Tucker suggested she "might call mainte- nance." Shortly thereafter, Moore telephoned the NIOSH maintenance office to report the defective hood. Moore requested that Mike Zulkoski be dis- patched because he was familiar with that hood's problems.7 Zulkoski was absent from work on April 9. Approximately 3 hours after Moore reported the defective hood, NIOSH facility engineer Louis Smith dispatched NIOSH maintenance employee Jack Riley to examine the hood's fan system, which was located on the roof of the lab. After as- certaining that the fan was by then working prop- erly, Riley proceeded towards the pathology lab where he asked Moore what her problem was. Moore responded that she had no problem and had asked for Mike." Riley testified that he reported to Smith that the fan was running properly and Moore wanted to see Mike. Smith testified that Riley reported the fan was fine and that Moore said that she only wanted to see Zulkoski. Al- though Moore testified that she told Riley there had been a problem that cleared up, Riley did not mention this in his report to Smith. Smith testified that he deduced from Riley's report that Moore must have made a false report. On April 14, Smith informed Supervisor Char- lotte Dalton, the administrative officer of the Mor- gantown NIOSH facility, that his office had re- ceived a false report of a defective hood. Also about April 14, Dalton informed McCabe about the incident and expressed her concern that Ebon do something about it, but she did not suggest that Moore be discharged. On either April 14 or 15, McCabe discussed the hood incident with Hicks and investigated the report by consulting NIOSH employees Smith and Riley. On April 16, Hicks telephoned Moore at work to discuss the hood incident. Technician Bryant was with Moore in the lab during this conversation. Moore testified that she tried to explain to Hicks that she had not filed a false report and felt that Hicks misunderstood her statements. Hicks rejected Moore's explanation and stated she would note the incident in Moore's personnel file as unprofessional ' NIOSH facility engineer Louis Smith described the hood as a "classic nonfunctioner." 8 Moore testified she was surprised that Riley was dispatched instead of Zulkoski, who usually checked the hood. conduct and additional disciplinary action would be taken. Hicks again telephoned Moore shortly before midnight on April 16, and informed Moore of her termination. Hicks confirmed the discharge by mailgram and letter of April 16. The letter stated in pertinent part that Moore had reported a malfunc- tioning hood, that Riley had thoroughly examined the roof and exhaust system and told Moore no defect was found, that Moore had telephonically informed Hicks she was aware the hood was func- tioning normally, and that other individuals had told Hicks that Moore had told Riley she knew there was nothing wrong with the hood. The letter concluded that on the basis of Moore's report to Hicks and other facts uncovered after "careful in- vestigation," Hicks had determined that the best in- terest of all parties required Moore's immediate ter- mination. On April 23, Hicks met with the Respondent's employees to discuss Moore's termination and the union situation. Employees asked why Hicks had discharged Moore. Hicks replied that Moore had been fired for making a false safety report and indi- cated that Moore admitted during their initial tele- phone conversation that she had made a false report. Hicks told employees that Moore purport- edly said, "Yes, I knew the hood was working when I made the phone call." At that point, Bryant informed Hicks that he was present with Moore during this telephone conversation and that Moore never admitted making a false report. The judge credited the testimony of NIOSH em- ployees Riley, Lewis, and Dalton and concluded that they held an honest but mistaken belief that Moore had actually made a false report on April 9. Without also specifically crediting Hicks, the judge reasoned that she also might have formed an honest but mistaken belief that Moore had made a false report if she had simply adopted the opinions of her subordinates. He then concluded that not- withstanding the Respondent's honest but mistaken belief that Moore had engaged in misconduct, the Respondent had violated Section 8(a)(1) by dis- charging her.9 The Respondent excepts to the judge's finding that the discharge violated Section 8(a)(1). The General Counsel excepts to the judge's failure to resolve the allegation that the discharge also violated Section 8(a)(3). For the following rea- sons, we find that Moore's alleged false report was 9 The judge found it unnecessary to resolve the allegation that the dis- charge also violated Sec. 8(a)(3). EBON RESEARCH SYSTEMS utilized by Hicks as a pretext and that Moore's dis- charge violated Section 8(a)(3) of the Act.10 Initially, we find that the General Counsel has met the burden under Wright Line" of a prima facie showing that union activity was a motivating factor for the Respondent's discharge of Moore. In this regard, we affirm the judge's fording that the Respondent's supervisors communicated their knowledge of Moore's solicitation activities to Hicks, which occurred on the same day that Hicks chose to act on that knowledge in other ways, such as by letters to employees containing the no-solici- tation rule we have found above to be unlawful. Additionally, we emphasize the timing of Moore's discharge almost immediately after the Respondent gained knowledge of her union activity. Finally, we fmd that the Respondent's unlawful conduct, including antiunion statements accompanied by threat of discharge or job loss, provides the requi- site proof of union animus. We conclude that the General Counsel established a prima facie case of Moore's unlawfully motivated discharge. The Respondent has not shown that it would have discharged Moore even in the absence of her union activity. The preponderance of the evidence belies any honest or mistaken belief by Hicks that Moore admitted filing a false report . Contrary to Hicks' contentions, employee Bryant was present during the pivotal telephone conversation and cre- dibly corroborated Moore's testimony that she never admitted making a false report. Thus, even assuming, as did the judge, that, on the strength of others' opinions and before speaking to Moore, Hicks might have formed an honest but mistaken belief that Moore had made a false report, it is clear that Moore's telephone interview lent no fur- ther support to any such belief but that Hicks pro- ceeded to fabricate a scenario by which it did.12 The fact that the Respondent's action was falsely predicated on Moore's alleged admission of mis- conduct indicates that the asserted rationale given " In light of our disposition of the 8(aX3) allegation , we find it unnec- essary to decide whether the Respondent's discharge of Moore constitut- ed an independent violation of Sec. 8(axl). I t 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (Ist Or. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB Y. Transportation Manage— meet Corp., 462 U.S. 393 (1983). ra Furthermore, the credited testimony of employee Janet Lucas is that, at an employee meeting with Hicks following Moore's termination, Bryant confronted Hicks with his knowledge that Moore had made no admission of guilt during her telephone interview but that the conversa- tion then turned to employees' union activity, with Hicks making several threatening statements and expressions of futility in employees seeking union representation, as well as interrogating her audience about the Union. Hicks subsequently declined to reconsider Moore's termination. Hicks' determination to adhere to her position on Moore's admitted guilt notwithstanding an employee's contradiction of that assertion based on first-hand knowledge, as well as her use of the occasion of an employee appeal concerning the discharge to air antiunion views , is consistent with our finding of an unlawful motive. 753 for Moore's discharge was pretextual. In these cir- cumstances, we ford that Moore's discharge violat- ed Section 8(a)(3) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge in his original decision as modified below and orders that the Respondent, Florence J. Hicks d/b/a Ebon Research Systems, Morgantown, West Virginia, it officers, agents, successors, and assigns, shall take the action set forth in the .Order as modi- fied. 1. Substitute the following for paragraph 1(e). "(e) Discharging employees because of their union activity." 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs. "(c) Remove from its files any reference to the unlawful discharge of Cindy Moore and notify her in writing that this has been done and that the dis- charge will not be used against her in any way." 3. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that Case 6-RC-9248 is severed and remanded to the Regional Director for Region 6 for further proceedings consistent with this Decision and Order. 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. WE WILL NOT interrogate employees concerning their union activities or the union activities of other employees. WE WILL NOT threaten employees by informing them they may lose their jobs if they elect to have union representation. WE WILL NOT discourage membership in Ameri- can Federation of Government Employees, Local 3430, AFL-CIO, or in any other labor organiza- tion, by informing employees they are scapegoats and continued support of the above-named Union will cause them to be replaced by Government em- ployees and/or prevent their Employer from ob- taining long-term contracts. WE WILL NOT promulgate and enforce an unlaw- fully broad no-solicitation rule that prohibits em- ployees from engaging in union-related solicitation 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during periods when they are properly not engaged in performing their work tasks (e.g., meal and break periods). WE WILL NOT discharge employees because of their union activity. WE WILL NOT inform employees that discharge action will not be reconsidered because of Board requirements or because a petition for an election is pending before the Board. 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 make whole Cindy Moore for any loss of pay she suffered as a result of the discrimination practiced against her, with interest. WE WILL notify Cindy Moore that we have re- moved from our files any reference to Moore's dis- charge and that the discharge will not be used against her in any way. FLORENCE J. HICKS D/B/A EBON RE- SEARCH SYSTEMS Domenic A. Bellisario, Esq., for the General Counsel. Claude Roxborough, Esq., of Washington, D.C., for the Respondent. W. Harry Muller, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On original and amended charges filed by American Federa- tion of Government Employees, Local 3430, AFL-CIO (Charging Party or the Union) in Cases 6-CA-15463 and 6-CA-15766,1 the Regional Director for Region 6 of the National Labor Relations Board (the Board) issued order consolidating cases, consolidated complaint and notice of hearing on November 19, 1982, which alleged , inter alia, that Florence J. Hicks d/b/a Ebon Research Systems (the Respondent or Ebon) had engaged in conduct that violates Section 8(a)(1) and (3) of the National Labor Re- lations Act (the Act). Respondent filed a timely answer denying it had engaged in the unlawful conduct alleged in the complaint. Thereafter, the Union filed the petition in Case 6-RC-9248 and an election was conducted among certain of Respondent's employees. The Union lost and filed objections to the election. By Order dated March 7, 1983, Case 6-RC-9248 was consolidated with the above-described unfair labor practice cases for hear- ing as the objections are coextensive with the allegations set forth in the complaint. The trial in this matter held in Morgantown, West Vir- ginia, during the period April 5-8, 1983. All parties ap- r The original charge was filed in case 6-CA-15463 on May 6, 1982. It was amended on May 26, 1982. The original charge in Case 6-CA-15766 was filed on September 7, 1982 . It was amended on November 18, 1982. peared and were afforded full opportunity to participate. On the entire record, including the posthearing briefs filed by the parties, and from my observation of the de- meanor of the witnesses when they gave testimony, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a sole proprietorship, with its principal office located in Rockville, Maryland, with a place of business located in Morgantown, West Virginia, is en- gaged in the business of providing research assistance and other services to, inter alia, agencies of the United States. Its gross revenue for the performance of such services throughout the United States exceeds $1 million annually, and it admits that during the 12-month period ending April 30, 1982, it provided services valued in excess of $50,000 to the United States Government within the State of West Virginia. Its Morgantown, West Virginia operation is the only operation immediately in- volved in the instant case. During the hearing in Case 6-RC-9248, and during the instant trial, Respondent contended the Board should not assert jurisdiction over its operation because the Federal agencies utilizing its services exercise substantial control over its collective-bargaining matters and such agencies and respondent are joint employers of the employees hired by Respondent to enable it to furnish services to Federal agencies. After exhaustive analysis of the evi- dence offered by Respondent in support of its conten- tion, the Regional Director concluded the contention was without merit and found that Respondent is an em- ployer within the meaning of Section 2(2) of the Act and jurisdiction over its operations should be asserted. By tel- egraphic Order dated November 4, 1982, the Board denied Respondent's Request for Review of the Regional Director's Decision and Direction of Election. In the cir- cumstances described, I find that doctrine of res judicata precludes Respondent from relegating the jurisdictional issue described in the instant case.2 I find, as alleged, that Respondent is an employer whose operations affect com- merce within the meaning of Section 2(2), (6), and (7) of the Act and that assertion of jurisdiction over its oper- ations is warranted. II. STATUS OF LABOR ORGANIZATION Respondent admits and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a research consulting firm that provides research assistance to agencies of the United States Gov- ernment and to States, colleges, and other entities. It ob- tains the vast majority of its work through subcontracts 8 See Wayne County Neighborhood Legal Services, 249 NLRB 1260, 1262-1263 (1980), and cases cited therein. EBON RESEARCH SYSTEMS with the Small Business Administration (SBA) which recognizes it as a majority contractor. Mechanically, SBA receives requests for services from various agencies or business concerns and it then notifies minority con- tractors who are qualified to perform the work of the need for services. On indicating their interest in subcon- tracting the particular work involved, the minority con- tractors are furnished with requests for proposals that outline the tasks to be performed and they submit con- tract proposals directly to the agency or entity that needs the services. The requesting agency or entity then selects a contractor, they complete negotiations, and SBA thereafter awards the contract. At all times material in this case, Dr. Florence Hicks has been the executive director and owner of Respond- ent. She testified that she hires and fires all employees utilized by Respondent at all locations . She is assisted by Dr. Lee Richmond, the director of Respondent's health division. Richmond testified that he, inter alia, prepares all technical contract proposals for Respondent , provides supervision of all employees employed at locations within his jurisdiction, and participates in the interview of employees at the various locations where Respondent has obtained contracts. 3 Since 1981 , Respondent, as a subcontractor for SBA, has performed services for the National Institute of Oc- cupational Safety and Health (NIOSH) at its Appalach- ian Laboratory for Occupational Safety and Health facil- ity located in Morgantown , West Virginia (the facility or ALOSH). NIOSH conducts certain respiratory studies at the facility using small animals such as rats and rabbits. Pursuant to one of its contracts, Respondent provided re- search animal support services at the facility that in- volved housing and caring for the animals used in experi- ments, and providing employees who assisted NIOSH personnel in the actual conduct of experiments. During 1981 and the first 6 months of 1982 , Respond- ent accomplished the above-described animal-related services by utilizing five animal care technicians and a project coordinator. The technicians each spent 1 day each week in the animal quarters where they cleaned cages, fed and watered the animals, disposed of animals, and performed other functions related to animal care. During the remaining 4 days of the workweek , they as- sisted NIOSH scientific personnel who were conducting experiments by performing preparatory lab work that re- quired limited skill, i.e., dissecting animals and placing designated portions of tissue in cassettes that were subse- quently utilized by NIOSH personnel. The project coordinator hired by Respondent to pro- vide immediate supervision of the animal care techni- cians was Ed McCabe. Although McCabe is the only on- site Respondent employee who exerted authority over the technicians, Respondent contends in this proceeding that it is not responsible for McCabe's acts because he is not a supervisor in the statutory sense .' I find the con- s It is admitted, and I find, that Hicks and Richmond are, and have been at all times material, supervisors and agents of Respondent within the meaning of Sec. 2(11) and (13) of the Act. 4 Respondent contended, during processing of the representation case, that McCabe was a supervisor. He did not vote in the election held in that case. 755 tention to be without merit for the reasons set forth, infra. B. The Union Campaign In late March or early April, Cindy Moore, one of the technicians employed by Respondent at the Morgantown facility, spoke with Michael Zulkoski, a NIOSH mainte- nance employee at the facility who is also the president of the Union,' to ascertain whether the Union could rep- resent Respondent's technicians. After ascertaining his Union could represent nongovernmental employees em- ployed by a contractor at a Government facility, Zul- koski gave Moore application for membership cards, which she thereafter distributed among all the techni- cians except Maureen Sullivan, who was described to be a close personal friend of McCabe. Subsequently, on April 7, employees Moore, Janet Lucas, Karen Aber- crombie, and Mark Bryant met with Zulkoski at a Pizza Hut during their lunch hour and all gave Zulkoski exe- cuted membership application cards .5 Thereafter, on April 14, the above-named employees decided to tell technician Maureen Sullivan that they had joined the Union to obtain representation. A short time after Sulli- van was made aware of the employees' interest in the Union, McCabe, who had overheard a conversation con- cerning Ebon employees and the Union, approached Sul- livan indicating he had heard something he could not be- lieve. McCabe then asked Sullivan if it was true that the technicians were joining the Union. Sullivan replied she had just learned from the other technicians that they were trying to join the Union. When McCabe interrogat- ed Sullivan further by asking her why they were joining and how it came about, the employee indicated she knew little because she had just learned of it herself. After talk- ing to Sullivan, McCabe approached employee Robert Long, told him he heard about the organizing effort, and asked if it was true. Long said yes. McCabe went on to ask which union was involved, who solicited him, and whether there were any local problems that prompted the employee to seek union representation. Long told McCabe that Moore had solicited him and that the em- ployees joined for better benefits. McCabe continued to interrogate other employees on an individual basis along the same lines. Employee Mark Bryant responded to his questions by informing him the employees were instruct- ed not to speak to him on an individual basis. McCabe then approached employee Karen Abercrombie (Brooke) who refused to answer his questions unless in the pres- ence of other employees. After approaching all the technicians except Moore and Lucas, McCabe telephoned Richmond at his Rock- ville, Maryland office to inform him that Respondent's employees were seeking union representation.6 Accord- ing to McCabe, Richmond told him he was unable to contract Hicks at the time; that McCabe should learn s Employee Robert Long executed a card the same day, but the record fails to reveal whether he attended the Pizza Hut meeting. 4 During the call, McCabe also informed Richmond that Moore had made what he considered to be a false report of a hood malfunction m a laboratory on April 9. That situation is discussed, infra. 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD more from the employees about their union activities and keep him informed. McCabe's conversation with Richmond prompted him to immediately schedule a meeting with the animal tech- nicians. He admitted during his testimony that he asked the same questions he had previously asked when inter- rogating the employees individually. Employees Bryant, Moore, and Long described the meeting during their tes- timony. Long and Moore recalled that McCabe opened the meeting by stating that Dr. Hicks had called him and she was surprised they had joined the Union? The em- ployees testified without contradiction that McCabe then asked: if they had joined the Union; who all was in- volved; whether it was because of him; and whether they could not run their complaints through him or through proper channels. The employees replied that all except Sullivan were involved; that they had joined for better benefits and pay rather than anything personal; and that they could not go through proper channels with complaints because that was no longer effective. When his meeting with the employees ended, McCabe reported what he had learned to Richmond. The latter instructed McCabe to keep him informed. While Hicks testified she did not learn of the employ- ees' interest in the Union or Moore's role in the organi- zation campaign until April 22, the record belied such claim.8 Thus, on April 16, Hicks sent a letter placed in the record as General Counsel's Exhibit 8 to Thomas Shamblee, a NIOSH official stationed in Atlanta, Geor- gia. In this letter, Hicks stated:9 Dear Mr. Shamblee: I am writing to inform you of my concern for the potential disruption of the activities being per- formed by Ebon Research Systems staff at the Ap- palachian Laboratory of Occupational Safety and Health in Morgantown, West Virginia, resulting from actions of American Federation of Govern- ment Employees Local 3430 members during duty hours. As you are aware, Ebon was contracted to provide laboratory assistance and animal care in support of the activities of the National Institute of Occupational Safety and Health. However, recent 9 Hicks testified she did not become aware her employees were en- gaged in union activity until McCabe informed her of it during a June 22 telephone conversation . McCabe and Richmond corroborated her testi- mony. The record reveals, however, that Hicks authored two letters, dis- cussed infra, on April 16 which clearly reveal she was then fully aware her employees were engaged in union activity . Long, in particular, was an impressive witness whose testimony had the "ring of truth." Finally, I note that Respondent states in its brief (p. 7) that Hicks telephoned the (Rockville) office and also talked to NIOSH officials Dalton and Lewis during the afternoon on April 14. In the circumstances, I credit the em- ployees' assertion that McCabe informed them at the meeting that he had just talked to Hicks. 8 On April 16, Zulkoski told McCabe the Union would claim Ebon was retaliating against Moore for her union activities if it disciplined her over the Hood matter . McCabe indicated in his pretrial statement that he informed Hicks of Zulkoski's remarks at 11:45 p.m. on April 16. Hicks mistakenly placed her conversation with McCabe as having occurred on April 22, almost a week later. 8 Hicks testified she contacted the Board's New York office, the Union's International office, and the Federal Labor Relations Authority before writing letters on April 16 to ascertain whether the Union could represent nongovernmental employees. Such conversations were prob- ably conducted on April 15. events threaten the continuance of the high quality performance of my employees. Specifically, I am concerned about Local 3430 members approaching my employees during work hours for the express purpose of discussing Union affairs and soliciting memberships. This type of ac- tivity is not only adverse to acceptable Union con- duct, but is an illegal use of compensated Govern- ment time. I have advised my employees that under no circumstances are they to divert any duty hours to any activities other than their specific assign- ments. I have also cautioned them that it is their re- sponsibility to report any attempts of Federal Gov- ernment employees to engage them in any activities during duty hours not in keeping with their job re- sponsibilities. Because of the adverse affect Local 3430 might have on the performance of the Ebon contract, I contacted the national office of the Federal Labor Relations Authority at 1325 Massachusetts Ave, N.W., Washington, D.C. Attorney Donna Ditullio at the Authority informed me that it was her under- standing that all AFGE Unions are prohibited from soliciting members other than full-time Federal em- ployees as a result of the Constitution and By-Laws promulgated by the national body. In response to the recommendation of Attorney Ditullio, I contact- ed Administration staff and staff of the Organization Office of the Federal Labor Relations Authority. After much discussion, I was informed that non- Federal employees hired by a private firm to per- form work not previously performed by Federal employees with the same job description and titles are not eligible for membership in AFGE unions. Consequently, I am requesting that Local 3430 members refrain from soliciting my employees at any time in keeping with their charter. I would appreciate very much your investigation of the situation. Most importantly, I would hope that the Union members are informed to cease solic- iting activities and disrupting the work of my em- ployees. Any steps taken to resolve these issues are welcomed. I am thanking you in advance for your efforts. On April 16, Hicks also sent a letter to each of her employees. The letters were identical. A copy was placed in the record as General Counsel's Exhibit 7. It states: I am writing to apprise you of new develop- ments, the status of the Ebon contract, and con- cerns that have recently come to my attention. Firstly, I am pleased to announce the award of a new contract from the U.S. Department of Agricul- ture that will add one animal care technician and one supervisory technician to the Ebon staff. This contract is for one year and will provide resources to conduct additional experiments at the Appalach- ian Laboratory for Occupational Safety and Health. Because my first priority is continued employment of our existing staff, the two positions will be filled EBON RESEARCH SYSTEMS 757 with two-month temporary employees to enable ex- isting employees to be considered for the positions when the first year of the present contract is com- plete. With respect to the present contract, actions have been initiated for a contract extension. Continuation of the present contract beyond the month of June, 1982, is contingent upon: (1) the needs of ALOSH, (2) availability of Federal funds, and (3) the per- formance records and accomplishments of the present staff. During recent contract negotiations, I have asked for additional monies for salary raises and staff development activities . I am hopeful that funds will be available for both. Relative to your specific position, your continued employment is also dependent upon the three fac- tors previously mentioned. All employees success- fully completed the probationary period ; however, in order to be considered for any position following the completion of the first year of the contract, you must receive an acceptable performance evaluation from your immediate supervisor . Every employee will be evaluated on or before May 30 , 1982. Your written evaluation will be discussed privately with you and you will have the opportunity to certify by your signature that you were given the results. Lastly, it has come to my attention that some Ebon employees may be using duty time to engage in activities not related to their work assignment. Let me caution that under no circumstances are you to direct any duty hours to any activities other than your specific job responsibilities. Moreover, it is your responsibility to report to your immediate su- pervisor any attempts of any one to engage you in non job related activities during duty time. As an Ebon employee, you are expected to exhibit a high level of job performance and professional conduct at all times. The success of the contract is directly related to your performance as an individual. Let me take this opportunity to thank you for your contribution in providing a high standard of overall contract performance. I fully anticipate that the results of your work will unltimately provide a healthier environment for our nation 's workers. I will keep you informed through your immedi- ate supervisor of the developments regarding the present contract extension. C. The Hood Incident During the 4 days of each week that she worked in a lab, Moore normally assisted NIOSH histopathology technician Marilyn Gamble . On April 9, Moore reported for work at 8 a.m. in the pathology lab located in room 281-A of the facility. She was to work alone that day as Gamble and NIOSH research biologist James Tucker were leaving for Florida that morning . While Moore performed her work, which involved dissecting the lungs of rats and placing strips of lung tissue in a cassette filled with formalin, 1 ° Gamble filled jars with formaldehyde in 10 Formalin is a preservative consisting of formaldehyde and a buffer. preparation for her trip . At approximately 9 a.m., Moore, who was working under a hood that was supposed to remove gaseous fumes from the work area, experienced discomfort as the formaldehyde fumes were burning her nose and eyes. Tucker and Gamble both testified they noticed the buildup of formaldehyde fumes as they re- moved equipment from the room. After checking to as- certain if any vessel was leaking formaldehyde, Tucker advised Moore to leave the room if the formaldehyde persisted. Shortly thereafter, Moore left room 281-A and telephoned the NIOSH maintenance section to report that the hood in room 281 -A was malfunctioning. Moore suggested that Mike Zulkoski , the maintenance employee who had responded to such calls in the past, be dis- patched to check the hood." Some 2 to 3 hours after Moore had reported the hood in room 281-A was malfunctioning, Louis Smith, the fa- cility engineer, instructed NIOSH maintenance employee Jack Riley to check out the fan system to the hood of room 281-A and report the results to him . 12 Riley pro- ceeded to check the reported malfunction by going to the roof to check the fan that drew fumes from the hood. After ascertaining that the fan was working prop- erly, Riley proceeded towards the lab in room 281-A and encountered Moore, who had just finished lunch but had not resumed work, in the hall outside room 281-A. Riley asked Moore what her problem was. Moore replied she did not have any problem; that she wanted to see Mike. Riley responded: "You little turkey, I was out in the rain and got wet." 1 s After leaving Moore, Riley reported to Lewis that the fan to the hood in room 281-A was functioning normal- ly; that the heavier of the two girls in room 281-A had told him she just wanted to talk to Mike. Thereafter, on Wednesday, April 14, Lewis informed Charlotte Dalton, the administrative officer of the Morgantown NIOSH fa- cility, that his office had received a false report of a hood malfunction. On April 14, Lewis supplied Dalton with the information given him by Riley. Dalton testified she considered the situation to be serious and she con- tacted NIOSH's Atlanta office, which advised her the employee making the false report should be admon- ished. 14 On learning that the employee who allegedly 11 Gamble testified she had called NIOSH maintenance on two prior occasions to report the buildup of formaldehyde fumes in room 281-A. Janet Lucas, a Respondent animal care technologist who regularly worked in the same lab with NIOSH biologist Tucker, testified she had to take 2 hours of sick leave in February 1982 because of irritation and swelling caused by formalin fumes she had breathed while working in room 281-A the previous day. Finally, Moore testified she had called to report that the hood in question was malfunctioning on two prior occa- sions. 's Employee Zulkoski was absent from work on April 9. While Smith testified Moore's call was received during the afternoon and that he dis- patched Riley to check it around 2:30 p .m., it is clear, and I find, Moore called maintenance around 9 a.m. and Riley responded during the lunch hour. 13 Moore testified she informed Riley a problem had been experienced with the hood earlier but it had cleared up. While Moore may have made such a statement when he later described the incident to others , including his Supervisor Lewis and McCabe. 14 Dalton indicated she was under the impression that NIOSH employ- ee had made a false report at the time. 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made the false report worked for Respondent rather than NIOSH, Dalton reported the situation to one Purvis Major, a NIOSH employee who had been designated as the project officer who was to oversee Respondent's per- formance of its contract to furnish NIOSH the animal- related services described above. Dalton summoned McCabe, Moore's immediate supervisor, to her office. She then informed McCabe that on April 9 Moore had called maintenance to report a malfunctioning hood and had requested that Mike Zulkoski be sent up; that Super- visor Smith had assigned Jack Riley to check out the hood because Zulkoski was off that day; that Riley had checked out the exhaust fan and found it was okay; that when Riley arrived outside the lab, Moore told him there was nothing wrong with the hood-that she just wanted to talk or speak with Zulkoski; that she (Dalton) was concerned about fraudulent reports and although she could not get involved with their employees, she felt something should be done by Ebon regarding this inci- dent. 15 After talking to Dalton, McCabe testified he investi- gated the situation by talking to Smith and Riley. After Smith told him the hood was working properly on the occasion in question, he spoke with Riley. According to McCabe, Riley told him he had found the fan on the roof was working okay and, when he started for the lab, he met Moore and on advising her that everything checked out, she responded something to the effect that the hood was working and she had expected or wanted Mike. On either April 14 or 15 McCabe discussed the hood incident with Hicks, asking whether he should obtain Moore's version of the incident. Hicks informed him she would speak with Moore. On April 16, Hicks telephoned Moore at work and ac- cused her of having filed a false report on April 9 that the exhaust hood at which she was working had mal- functioned. Bryant was present with Moore during this conversation. Moore explained that she had not made a false report. Rather, she reported to the NIOSH mainte- nance department that the hood was not functioning properly when she noticed a buildup of formaldehyde fumes, but that by the time the maintenance appeared hours later, the fumes had dissipated and everything seemed all right. Hicks rejected Moore's explanation and told her she would be noting the incident in Moore's record because she considered the conduct to be unpro- fessional. That night about midnight, Hicks telephoned Moore at home and informed Moore that she was fired. Hick's oral communication to Moore regarding her ter- mination was confirmed by a mailgram sent the night of April 16 and, subsequently, by letter dated April 16. The letter, which was placed in the record as General Coun- sel's Exhibit 9, is substantially identical to the mailgram. It states: Dear Ms. Moore: It came to my attention on april 15, 1982, that you reported a malfunctioning hood in the Patholo- gy Laboratory and requested that a Federal em- is Dalton testified she did not suggest that Moore be terminated. ployee correct the situation. Upon thorough exami- nation of the roof and exhaust system by Jack Riley, he told you there was no malfunction found. I was informed directly by you that you were aware of the fact the hood was functioning normal- ly. Also, others told me that you reported to Jack Riley that you knew there was nothing wrong with the hood. I consider the potential of actual formaldehyde intoxication threat a very serious hazard to both animals and humans and should not be falsely re- ported. Additionally, to cause a Federal employee to leave his work site to explore a malfunctioning hood where it does not exist shows the lack of pro- fessional integrity and is disruptive to the operation of the Lab. Because of this incident, I seriously question your professional competence to perform as an Ebon employee on this Federal contract. On the basis of your report to me and other facts I uncovered upon careful investigation, I find it in the best interest of the Federal Government and Ebon Research Systems, employees at ALOSH, and the animals, that I terminate your employment ef- fective April 30, 1982. Furthermore, for the protec- tion of the animals and the safety of the employees, you are not to work Monday, April 19, 1982, through Friday, April 30, 1982. Because of my con- cern for your level of professional judgment and the nature of your ethical conduct, I feel it is necessary to terminate you without delay in order to maintain the high standards of performance of Ebon Re- search Systems. You will be paid your full salary during your two-week termination, notification period. Sincerely, /s/ Florence J. Hicks, PH.D. Executive Director D. The April 23 Meeting When Respondent's employees learned that Moore had been fired, they requested that Hicks meet with them to discuss Moore's termination and the union situation. A meeting was subsequently scheduled for April 23. Hicks, and employees Janet Lucas, Robert Long, and Mark Bryant each described what occurred at the meet- ing during their testimony. Lucas' description was the most complete. Thus, she testified the employees asked Hicks at the beginning of the meeting why she had fired Cindy Moore. Hicks replied Moore had been fired for making a false safety report. Hicks then indicated Moore had admitted during a telephone conversation with her that she had made a false report. At the point, Bryant interjected that he had been with Moore when Hicks telephoned and that Hicks was incorrect in stating Moore admitted making a false report because Moore had not admitted any wrongdoing. Lucas recalled that the conversation then turned to the Union and that either Hicks or McCabe asked the employees how involved were they with the Union; had they actually joined yet? EBON RESEARCH SYSTEMS 759 When the employees remained passive, Hicks showed employees her SBA contract, indicating that it prohibit- ed the payment of moneys that were to be used for lob- bying to obtain passage of legislation . She then displayed the Union's constitution and bylaws, indicating that one of the purposes of the Union was to engage in lobbying. Hicks then told employees she would be violating her contract if she paid them for their services and some of the payment was used to pay for the lobby activities conducted by the Union. Hicks then observed that it was her opinion that the Union was making scapegoats of them because she would have to terminate them to avoid violating her contract and the NIOSH employees would end up performing the work then performed by Re- spondent employees. t a After Hicks informed the techni- cians she could not pay them if they joined the Union, employee Bryant asked how they should go about it if they chose not to go ahead. Hicks informed the employ- ees they could prepare a letter in which each would indi- cate their preference, seal the letter, and that she would deliver it to the NLRB unopened . At the conclusion of the meeting, employee Long requested that McCabe be asked to leave the meeting . After he left, Long informed Hicks that McCabe had physically abused the female technologists. Lucas added that on one occasion McCabe became angry when working in the surgery room with her and Long, and he had thrown a pair of scissors. At some point near the conclusion of the meeting, Hicks in- formed the employees what while she had been attempt- ing to obtain a 3-year contract, she was not even sure she could get a 1-year contract now as their attempt to join the Union had shaken up administration at the ALOSH facility so bad. E. Respondent's Refusal to Rehire Moore By letter dated April 23, Moore urged Hicks to recon- sider her decision to terminate her, indicating that she had simply followed appropriate procedure when she re- ported a real safety problem on April 9. By letter dated April 27, Hicks notified Moore, inter alia: I regret to inform you that your request cannot be reconsidered because of policies of the National Labor Relations Board that advise me that I cannot perform any personnel acts that may influence the employees in making a free choice relative to a union election. Respondent's 1981-1982 contract to provide animal care and research support at the ALOSH facility expired on June 10, 1982. Consequently, on May 26, Hicks sent each of the technicians then employed a letter informing them they would be terminated effective June 10. There- after, by letter dated June 28 , Respondent notified all of its former technicians, including Moore, that it had ob- tained a new contract and had openings for positions on another 1-year contract effective August 1 . The former to Hicks denied stating she would have to terminate employees to avoid violating her contract. I credit the employees who uniformly testi- fied she made the statement. employees were invited to submit resumes to McCabe so he could schedule interviews for qualified employees. When performing its 1981 -1982 animal research sup- port contract at the ALOSH facility, Respondent's tech- nicians, such as Moore, were assigned to work in the lab- oratory 4 days a week with a specific NIOSH employee. When he appeared as a Respondent witness , Fredrick Ames, the administrative officer for the division of respi- ratory disease studies of NIOSH , testified that when the contract was renegotiated during mid -1982 he indicated his agency was dissatisfied with the situation in which the technicians worked with only one person because NIOSH personnel felt they were placed in a position in which they supervised contract personnel . During his testimony, Richmond testified that Respondent sought to meet the NIOSH complaint by proposing that the techni- cians be assigned to assist NIOSH personnel on a rotat- ing basis during the term of the 1982-1983 animal re- search support contract . Richmond further indicated that assignment of technicians on a rotating basis would ne- cessitate that they possessed a bachelor's degree in biol- ogy, animal or veterinary science, agriculture, or similar credentials in a related field to enable them to perform adequately in the various laboratories, i.e., immunology lab, biochemistry lab, pathology lab, or in the physiology lab. When it submitted its technical proposal for the 1982- 1983 research animal support contract, Respondent, in addition to upgrading the educational requirements for Ebon employees who would be working with NIOSH personnel in the laboratories, indicated it proposed to ful- fill its contract obligations by hiring four animal care re- search laboratory technicians and two animal care hus- bandry technicians. The proposal indicated employees in the former classification would devote most of their time to assisting in animal experimentation and might also be required to assist in animal husbandry duties, particularly on holidays and weekends. The proposal further indicat- ed that the duties of the animal husbandry technicians would be limited to animal care. On August 2, Moore visited the ALOSH facility, sub- mitted her resume to McCabe , and requested an inter- view. McCabe commented, "Well, we'll carry this farce about as far as it will go," and accepted Moore's resume and scheduled her for interview with Hicks the follow- ing day. When Moore subsequently met with Hicks, she indicated she wished to be interviewed for the research technician position. Hicks informed her she was not qualified for the position because she did not have a bachelor's degree, and asked whether she would be inter- ested in an animal care husbandry technician's position. Moore indicated she was interested in only the research technician position and inquired whether Hicks would consider her for such a position if an insufficient number of qualified applicants applied. Hicks terminated the interview by indicating she did not feel Respondent would experience a situation where insufficient qualified applicants applied. 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F. Edwin McCabe's Status During the pendency of the representation case, Re- spondent took the position that Project Coordinator McCabe was a supervisor who was not eligible to vote in the election. Here, it claims it is not responsible for McCabe's act as he is not a supervisor in the statutory sense. Review of the instant record reveals that Respondent has repeatedly informed its animal care technicians that McCabe, who admittedly is the only on-site Respondent employee who exerts authority over the technicians, is their immediate supervisor. Thus, in a letter from Hicks to Moore dated October 8, 1981, and placed in the record as General Counsel's Exhibit 19, Hicks states, inter alia: Mr. Edwin McCabe is responsible for ensuring that all of the needs of the animal care facility are being met, and he is in charge of scheduling your work hours. He is your direct supervisor and is authorized to speak on our behalf [emphasis supplied]. Similarly, in the letter sent by Hicks to the ALOSH fa- cility employees on April 16, which is set forth supra, Hicks indicated that to be considered for rehire when performance of the second animal care contract com- menced, it would be necessary for them to receive a fa- vorable exit evaluation that would be accomplished by their immediate supervisor (McCabe). While McCabe and Richmond claimed during their testimony that McCabe is not authorized to take any action at the Morgantown facility that requires the exer- cise of independent judgment until he has telephoned Richmond and obtained his approval, McCabe candidly stated in a pretrial statement placed in the record as General Counsel's Exhibit 19 that: I am the only Ebon supervisory person at this project 99% of the time. Employees get authoriza- tion from me for all leave request as well as other matters concerning their working conditions. As a rule, I do not check with my superiors on these matters unless it's a very unusual problem. With further regard to the question of whether McCabe exercises independent judgment in matters affecting Ebon at the Morgantown facility, the record reveals that when McCabe was informed Moore may have falsely re- ported a hood malfunction, McCabe investigated the matter by consulting with NIOSH personnel before he made any mention of the matter to either Hicks or Rich- mond. In sum, it is clear that McCabe is the only Respondent figure with authority over the animal care technicians at the ALOSH facility 99 percent of the time. He schedules the hours and places of work of the technicians, reviews the time records they maintain to verify the amount of time, including compensatory time they claim, and he re- ports their /work-related transgressions to Richmond or Hicks. Add to the above the undisputed fact that he con- ducts weekly meetings with employees, conducts exit evaluations, which must be favorable if the employee is to be eligible for rehire, and participates in the applicant interview process by determining whether the resumes of applicants justify scheduling an interview of the appli- cant(s) by Hicks or Richmond, and it is clear that there is more than enough evidence in the record to show that McCabe possesses several of the indicia of statutory su- pervisory authority set forth in Section 2(11) of the Act. In sum, I conclude that Richmond and McCabe inten- tionally tailored their testimony concerning the extent of the project coordinator's authority to meet the needs of Respondent's case. I find their testimony is not worthy of credit. I find for the reasons stated that McCabe has at all times material been a supervisor and an agent of Re- spondent within the meaning of Section 2(11) and (13) of the Act.17 Analysis and Conclusions 1. THE ALLEGED INDEPENDENT 8 (A) (1) VIOLATIONS A. By Edwin McCabe Paragraph 7 of the complaint alleges that Respondent, through McCabe, violated Section 8(a)(1) on April 14, 1982, by: interrogating employees about their union membership and activities and the membership and union activities of others; creating the impression that the union activities of employees were under surveillance ; and so- liciting their grievance and promising them better bene- fits and improved working conditions. The paragraph also alleges that on April 22, McCabe threatened to dis- charge employees if they remained in the Union. Respondent contends that McCabe acted lawfully when he interrogated employees on April 14 because he announced to them that he was attempting to learn whether a rumor that they were organizing was true and he conducted the interrogation in a noncoercive manner. With respect to the grievance solicitation allegation, it contends that activity was lawful because McCabe did nothing other than continuing the policy of conducting weekly meetings and discussing problems. Finally, Re- spondent claims the surveillance and threat to discharge allegations are not supported by any credible evidence. In the normal circumstances, an employer cannot ques- tion or poll employees to ascertain their union sentiments as such conduct is inherently coercive . Controlling law in polling situations is set forth in Struksnes Construction Co., 165 NLRB 1062, 1063 (1967), in which the Board stated: Absent unusual circumstances, the polling of em- ployees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to deter- mine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) 'T Assuming, arguendo, that McCabe was actually required to obtain Richmond's approval before taking action that would affect the animal care technicians, it is clear that Richmond instructed McCabe on April 14 to investigate the union situation by discussing it with Respondent's employees. In such circumstances, Respondent is responsible for his acts. EBON RESEARCH SYSTEMS 761 assurances against reprisal are given, (4) the em- ployees are polled by secret ballot, and (5) the em- ployer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. Patently, the interrogation accomplished by McCabe during his discussions with individuals and subsequently with all the technicians at the April 14 meeting fails to meet the criteria set forth in Struksnes. I fmd, as alleged, that by interrogating employees concerning their union membership, activities, and sympathies, and the union membership, activities, and sympathies of others, Re- spondent violated Section 8(aXl) of the Act. The General Counsel claims that McCabe created the impression that the union activities of the technicians were under surveillance by Respondent by telling them: (1) that he had heard a rumor they were organizing; and (2) by commenting at the April 14 meeting that he had received a call from Hicks and she was surprised to hear they were involved with the Union and wanted to know if it was true. In support of his claim, he cited World Wide Press, 234 NLRB 346 (1979), and Engineered Appar- el, 243 NLRB 66 (1979). In both of the cited cases, em- ployer representatives asked employees questions con- cerning union meetings that suggested that such repre- sentatives have some knowledge of what had occurred or who had attended such meetings. Here, McCabe made no comment that would cause employees to conclude their meetings or other union activities were being ob- served and reported to Respondent . I find that the Gen- eral Counsel has offered insufficient evidence to prove the surveillance allegation and recommend that para- graph 7(b) of the complaint be dismissed. Respondent failed to controvert employee Bryant's testimony that reveals that during the April 14 meeting McCabe, when asking why the employees had joined the Union, inquired whether the employees could not run their complaints through normal channels . The General Counsel contends that by making the comment McCabe was soliciting the employees' grievances or complaints and impliedly promising to remedy them . Noting that the record fails to reveal that any employee attending the meeting voiced any complaints and the fact that it was not shown that McCabe made any express comments to urge the employees to voice their grievances or com- plaints, I rind that the record fails to reveal that employ- ee complaints or grievances were seriously solicited by McCabe during the April 14 meeting . Accordingly, I recommend that paragraph 7(c) of the complaint be dis- missed.18 The General Counsel sought to prove that McCabe threatened employees during the April 23 meeting by causing employee Long to testify that McCabe asked them during the meeting if they were aware of the con- sequence of joining the Union and the fact that the . NIOSH employees planned to make them scapegoats. Long's testimony was not contradicted and, as found, supra, Hicks made similar comments during the April 23 rs No evidence was offered to support the allegation that the employ- ees were promised increased benefits and improved terms and conditions of employment. meeting after observing she could not pay employees who joined the Union because it engaged in lobbying ac- tivities and her SBA contract prohibited Ebon from pro- viding funds for the lobby activity. Viewing McCabe's comments in context, I conclude the employees attending the meeting could have reasonably concluded that McCabe, by making the scapegoat comment, was telling them they would be discharged if they joined the Union. I find the comment was threatening as alleged and that through McCabe's described actions Respondent violated Section 8(a)(1) as alleged. B. By Dr. Hicks Paragraph 8 of the complaint alleges that during the April 23 meeting Respondent violated Section 8 (a)(1) as Hicks allegedly: (1) threatened employees with discharge if they joined the Union; (2) solicited employees to ex- press their union sympathies; and (3) threatened employ- ees that Respondent's service contracts would be termi- nated if employees joined the Union. Having found, supra, that during the course of the April 23 meeting Hicks or McCabe asked the employees how involved they were with the Union and had they actually joined yet, I find that, by posing such questions to the employees, Respondent unlawfully solicited em- ployees to express their union sympathies and thereby violated Section 8(a)(1) of the Act as alleged. Similarly, having found, supra, that Hicks told Re- spondent's employees on April 23 that she could not pay them if they joined the Union and it was her opinion that the Union was making scapegoats of them because she would have to terminate them to avoid violating her contract and the NIOSH employees would end up per- forming the work then performed by Ebon employees, I fmd that Respondent threatened employees with dis- charge if they joined the Union in violation of Section 8(a)(1) of the Act. While the General Counsel contends that Hicks told employees during the April 23 meeting that Respond- ent's service contracts would be terminated if they joined the Union, it appears, as noted, supra, that instead she told them she had been attempting to obtain a new 3- year animal care contract and she was not sure she could even get a 1-year contract now as their attempt to join the Union had shaken up administration at the ALOSH facility so bad. It is clear that Hick's comments were of such a nature as to inhibit the employees in the exercise of their right to join or remain members of the Union. Through the comments, I fmd that Respondent threat- ened, coerced, and restrained its employees in the exer- cise of their Section 7 rights in violation of Section 8(axl) of the Act. C. The No-Solicitation Rule Paragraphs 7(a) and 9 of the complaint allege that Re- spondent promulgated and published an unlawful no-so- licitation rule when it sent copies of the April 16 letter from Hicks to employees. The pertinent part of the letter, which is set forth completely supra, is: 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lastly, it has come to my attention that some Ebon employees may be using duty time to engage in activities not related to their work assignment. Let me caution you that under no circumstances are you to direct any duty hours to any activities other than your specific job responsibilities. Moreover, it is your responsibility to report to your immediate supervisor any attempts of any one to engage you in non job related activities during duty time. As an Ebon employee, you are expected to exhibit a high level of job performance and professional conduct at all times. The success of the contract is directly related to your performance as an individual. During her appearance on the witness stand, Hicks claimed the portion of the letter quoted above had noth- ing to do with the Union . I find this testimony to be il- logical and unbelievable as she expressly informed NIOSH official Shamblee on April 16-the same day her letters to employees were sent-inter alia: I would appreciate very much your investigation of the situation . Most importantly, I would hope that the Union members are informed to cease solic- iting activities and disrupting the work of my em- ployees. Any steps taken to resolve these issues are welcomed . I am thanking you in advance for your efforts. It is clear, and I find, that Hicks intended , when using the work "activities" and the term "non job related ac- tivities" in her April 16 letter to employees, to warn em- ployees that they were not to engage in union activities during "duty hours" or "duty time." In Walton Mfg. Co., 126 NLRB 697, 698 (1960), the Board set forth the general rule to be observed in situa- tions involving promulgation and enforcement of no-so- licitation and no-distribution rules applicable to working time." No-Solicitation or no-distribution rules which prohibit union solicitation or distribution of union literature by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule adopted for a dis- criminatory purpose; and are presumptively valid as to their enforcement, in the absence of evidence that the rule was unfairly applied. Subsequently , in Stoddard-Quirk Co., 138 NLRB 615 (1962), the Board held unlawful a rule, the reach of which prohibited employees from distributing union liter- ature in nonwork areas during their nonworking time. Most recently, in T.R. W, Inc., 257 NLRB 442 (1981), a case involving the legality of a no-solicitation rule, the Board stated at 443: We, however, see no inherent meaningful distinc- tion between the terms "working hours" and "working time" when used in no-solicitation rules. Both terms are, without more, ambiguous, and the risk of such ambiguity must be borne by the pro- mulgator of the rule . Either term is reasonably sus- ceptible to an interpretation by employees that they are prohibited from engaging in protected activity during periods of the workday when they are prop- erly not engaged in performing their work tasks (e.g., meal and break periods). As such, either term tends unlawfully to interfere with and restrict em- ployees in the exercise of their Section 7 organiza- tional rights. In view of the foregoing, we hold that rules pro- hibiting employees from engaging in solicitation during "work time" or "working time," without further clarification, are, like rules prohibiting such activity during "working hours," presumptively in- valid. In the instant case it is clear that Hicks , without ex- pressly prohibiting her employees from engaging in "union" activity during duty hours , accomplished the same object by using general words and terms. More- over, it is clear that she composed the letter and sent it to employees immediately after learning they were show- ing interest in union representation. I find the rule she promulgated was unlawfully broad as it prohibited union solicitation during periods of the workday when employ- ees are properly not performing their work tasks. Having concluded that Hicks sought by promulgating the rule at the very outset of the union organization campaign to limit the union activities of Respondent 's employees any time they were on ALOSH premises , I find the rule was adopted for an unlawful purpose. In sum I find, as al- leged, that by promulgating and distributing the rule, Re- spondent violated Section 8(a)(1) of the Act. D. Respondent's Rejection of Moore's Request for Reconsideration The complaint alleges that by informing discharged employee Moore that Respondent would not reconsider its discharge decision because of the pending union cam- paign, Respondent violated Section 8(a)(1) of the Act. As noted, supra, Hicks notified Moore by letter dated April 23 that she would not reconsider her decision to discharge Moore "because of policies of the National Labor Relations Board that advise me that I cannot per- form any personnel acts that may influence the employ- ees in making a free choice relative to a union election." The General Counsel contends in his brief (p. 31) that Respondent violated Section 8(a)(1) by telling Moore it would not reconsider its discharge decision because of the union campaign and Board procedures because such a statement conveys that a benefit is being denied be- cause employees engaged in protected activities and that somehow the Board condones or requires the denial of this benefit . I agree and find that by giving the quoted reason for failing to reconsider its discharge decision, Respondent violated Section 8(a)(1) of the Act as al- leged. EBON RESEARCH SYSTEMS 763 II. THE ALLEGED DISCRIMINATION AGAINST MOORE A. The Termination The complaint alleges that Respondent violated Sec- tion 8(a)(3) of the Act by terminating Cindy Moore be- cause she engaged in union activities and by altering the job requirements of the research technician position to permit it to refuse her rehire when it commenced per- formance of its second animal support contract in mid- 1982. With respect to the discharge, the General Counsel contends, in the alternative, that Moore was discharged for engaging in protected concerted activity in violation of Section 8(a)(1) of the Act. Respondent defends its decision to terminate Moore by contending it had no knowledge of her union activities on April 16; that the sole reason for her discharge was in honest belief that she had made a false safety report. It defends its refusal to rehire her in a research technician position at the commencement of performance of its second animal support contract by contending that NIOSH's desire that the technicians be capable of work- ing in all of its research laboratories compelled it to ele- vate the job requirements to a level that rendered Moore unqualified. In the instant case, Respondent admits it terminated Moore on April 16, 1982, because she reported to NIOSH maintenance on April 9 that the ventilation hood in room 281-A of the facility was malfunctioning. Gener- al Counsel's witnesses Gamble and Tucker, both em- ployed by NIOSH, testified they noted the buildup of formaldehyde fumes in the lab during the morning of April 9, and Tucker indicated he advised Moore to leave the lab if the buildup persisted. Additionally, Tucker in- dicated Moore advised him she had or was going to call maintenance regarding the problem . Witness Gamble and Moore credibly testified that they had previously report- ed the hood in question had malfunctioned , and witness Lucas testified her exposure to formaldehyde fumes when working under the hood had required her to take several hours of sick leave in February 1982. In NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the U.S. Supreme Court held that employees who concertedly protest working conditions at their place of employment are engaged in protected concerted activity within the meaning of Section 7 of the Act, and if they are discharged for engaging in such activity the employ- er violates Section 8(axl) of the Act. Under Board law, "An individual's actions may be considered to be con- certed in nature if they relate to conditions of employ- ment that are matters of concern to all affected employ- ees."19 In such instance, it is immaterial that the individ- ual had not been delegated by other employees to act on their behalf and had not informed any other employee that he was doing so "so long as there is evidence that fellow employees share the acting employee's concern and interest in common complaints."20 Here, the evidence clearly reveals that when Moore called NIOSH maintenance on April 9 to report that the hood in room 281-A was malfunctioning, she was pursu- 1 ° Air Surrey Corp., 229 NLRB 1064 (1977). 20 Diagnostic Center Hospital Corp., 228 NLRB 1215 (1977). ing a matter of common concern to other employees and those employees did not disavow her action. It is clear, and I find, that by reporting the hood malfunction on April 9, Moore engaged in protected concerted activity. It does not automatically follow from the foregoing, however, that Respondent violated Section 8(aXl) by terminating Moore. While the General Counsel urges me to discount the testimony given by NIOSH employees Riley, Lewis, and Dalton, I found them to be credible witnesses and concluded on hearing their testimony that they had formed an honest but mistaken belief that Moore had actually made a false report on April 9. As- suming that Hicks simply accepted their honest opinion, her position is one in which she terminated Moore with an honest but mistaken belief that she made a false report on April 9. On many occasions the Board has considered analogous situations in strike situations where employers have terminated strikers in the honest but mistaken belief that they engaged in serious strike misconduct. It has uniformly held that the employer violates the Act if it is established that the employee did not in fact engage in the misconduct the employer honestly felt they had en- gaged in. For the reasons set forth, I fmd that by discharging Cindy Moore on April 16, 1982, Respondent violated Section 8(a)(1) of the Act as alleged. Having found the discharge violates Section 8(a)(1), I fmd it unnecessary to extend this decision by resolving the 8(aX3) issue.21 B. The August 3 Refusal to Reemploy Moore Paragraphs 12 and 13 of the complaint allege, and the General Counsel contends, that Respondent increased the job requirements and qualifications of the research technician position on or about August 2, 1982, to enable it to refuse to reemploy Moore when it began perform- ance of the 1982-1983 animal support contract. I fmd the contention to be without merit. The record reveals that during the course of the 1981- 1982 animal support contract Moore assisted NIOSH sci- entist Marilyn Gamble with experiments in the pathology lab 4 days a week. As found, supra, NIOSH official Ames testified he indicated dissatisfaction with the per- manent assignment of Ebon employees to NIOSH per- sonnel and when the 1982-1983 contact was entered into it provided that the Ebon research technicians would perform laboratory work 5 days a week and would be rotated to the various labs, i.e., immunology lab, bio- chemistry lab, pathology lab, and the physiology lab. Re- spondent claims it elevated the educational requirements of the research technicians to be used to perform the 1982-1983 contact by requiring a bachelor's degree in bi- ology, animal or veterinary science , agriculture, or simi- lar credentials in a related field to enable them to per- form adequately in the four laboratories named above. Having accepted Ames' testimony, I conclude that his objection to the permanent assignment of Ebon's re- search technicians to a single NIOSH scientist justified 211 note, however, that I would impute McCabe and Richmond's knowledge of Moore's solicitation activities to Hicks as I do not credit her claim that she did not learn of Moore's activities until after she dis- charged her. 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Richmond's decision to assign the research technicians to all four labs on a rotating basis during the term of the 1982-1983 animal support contract . As the technicians were to be performing work that patently required great- er familiarization with the different scientific areas, I similarly conclude that this decision to elevate the educa- tional qualifications for the position was warranted. Moving to Moore's situation, I note that her resume, which was placed in the record as Respondent's Exhibit 5, reveals she is a high school graduate, studied in col- lege 1 year, and performed several animal care jobs prior to her employment by Respondent. While her education- al and work background, including her year of employ- ment with Respondent, appears to have qualified her to perform the animal care functions and the pathology lab functions that Respondent was obligated to perform at the ALOSH facility during the term of its 1982-1983 animal support contract, the General Counsel offered no evidence to show she could capably and knowledgeably perform as a research technician in the immunology, bio- chemistry, or physiology labs. In sum, it is undisputed that when Moore was inter- viewed by Hicks on August 3 she indicated she was ap- plying for a research technician's position and she was not interested in one of the two animal care positions that were available. I conclude the record fails to reveal that Moore met the qualifications for the research techni- cian position and, consequently, that Respondent did not violate the Act as alleged by refusing to consider her for the position. III. THE REPRESENTATION CASE 3. Employer promulgated the rule described above in subparagraph 2(a) in order to discourage its employees from joining, supporting, or assisting the union, and en- gaging in concerted activities for the purpose of collec- tive bargaining or other mutual aid and protection. 6. On or about August 2, 1982, the Employer in- creased the job requirements and qualifications of its em- ployees. 7. On or about August 2, 1982, the Employer changed job requirements and refused to rehire Moore. 9. By the acts of the employer described herein, the Employer did invalidate the election. As Objections 1(d), 2(a)-(e), and 3 are coextensive with paragraphs 7(d), 8(a)-(e) _,, and 9 of the complaint, and I have found that Respondent violated Section 8(a)(1) by engaging in the conduct alleged in the refer- enced paragraphs of the complaint, I sustain the above- indicated objections. As Objections 6 and 7 are coexten- sive with paragraphs 12 and 13 of the complaint, and I have found the General Counsel failed to prove the vio- lations alleged therein, Objections 6 and 7 are found to be without merit and are overruled. Objection 9 is con- clusionary in nature and is disposed of by the comments set forth below. Having found that objections 1(d) 2(a)-(e), and 3 are meritorious, I further conclude that by engaging in such objectionable conduct Respondent interfered with the laboratory conditions necessary to ensure that the em- ployees could exercise a free and untrammeled choice in the election held on January 5, 1983. Accordingly, I rec- ommend that the January 5, 1983 election be set aside and that the Board order that a second election be held in Case 6-RC-9248. The objections filed by the Union in Case 6-RC-9248, which were consolidated with the unfair labor practice cases for hearing before me are: 1. The Employer, acting through the project coordina- tor, did: "(d) On or about April 22, 1982, threatened em- ployees with discharge if they joined the union." 2. Employer, acting through the executive director: (a) By letter dated April 16, 1982, promulgated and since said date has maintained a rule prohibiting employees from engaging in any non job related ac- tivities during duty hours and requiring employees to report to Employer any violations of said rule. (b) On or about April 23, 1982, at the Employer's Morgantown, West Virginia, facility, threatened employees with discharge if they joined the union. (c) On or about April 23, 1982, at the Employer's Morgantown, West Virginia, facility, solicited em- ployees to express their union sympathies. (d) On or about April 23, 1982, at the Employer's Morgantown, West Virginia, facility, threatened employees that Employer's service contract would be terminated if employees joined the Union. (e) By letter dated April 27, 1982, informed dis- charged employee Cindy L. Moore (herein called Moore) that Employer would not reconsider its dis- charge decision because of the pending union cam- paign CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the unlawful acts described in sec- tion III, above, Respondent has engaged in, and is engag- ing in, unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act. 4. Respondent has not violated the Act except to the extent specifically indicated in section III, above. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. Respondent will be required to make whole employee Cindy Moore for any loss of earnings she suffered as a result of the discrimination practiced against her with backpay to be computed on a quarterly basis, making de- ductions for interim earnings, with interest to be paid in accordance with the Board's decision in F. W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., EBON RESEARCH SYSTEMS 765 231 NLRB 651 (1977).22 As the record reveals all animal care technicians at the Morgantown, West Virginia ALOSH facility were terminated effective June 10, 1982, and I have found that Cindy Moore was not unlawfully refused reemployment by Respondent on or about August 2, 1982, the backpay period will run from May 1 through June 9, 1982. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 ORDER The Respondent, Florence J. Hicks d/b/a Ebon Re- search Systems, Morgantown, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their union ac- tivities or the union activities of other employees. (b) Threatening employees by informing them they may lose their jobs if they elect to have union represen- tation. (c) Discouraging membership in America Federation of Government Employees, Local 3430, AFL-CIO, or in other labor organization, by informing employes they are scapegoats and continued support of the above-named Union will cause them to be replaced by government employees and/or prevent their employer from obtaining long-term contracts. (d) Promulgating and enforcing an unlawful broad no- solicitation rule that prohibits employees from engaging in union-related solicitation during periods when they are properly not engaged in performing their work tasks (e.g., meal and break periods). (e) Discouraging employees from protesting unsafe work conditions by terminating or otherwise disciplining employees because they report unsafe conditions to NIOSH. (f) Informing employees that discharge action will not be reconsidered because of Board requirements or be- cause a petition for an election is pending before the Board. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole employee Cindy Moore for any loss of pay she suffered as a result of the discrimination prac- ticed against her in the manner set forth in the remedy section above. (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) Post at its Morgantown, West Virginia ALOSH fa- cility copies of the attached notice marked "Appen- dix."84 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 24 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." Michael Poprik, Esq., for the General Counsel. Claude Roxborough, Esq., of Washington, D.C., for the Respondent. W. Harry Muller, Esq., Washington, D.C., for the Charg- ing Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On 24 July 1986, the Boad remanded this case to me "for further consideration consistent with the Decisions and Orders in Res-Care, Inc.,' and Long Stretch Youth Home,2 . . . including if necessary, a reopening of the record on the jurisdictional issue." On 30 October 1986, further hearing was held in the case in Morgantown, West Virginia. During that re- sumed hearing, the General Counsel introduced docu- mentary evidence and adduced testimony through one witness. Respondent offered no additional evidence. Subsequent to the close of the hearing, on 23 Decem- ber 1986, Respondent filed a posthearing brief. Thereaf- ter, the General Counsel and the Charging Party filed motions to strike designated portions of Respondent's brief and reply briefs. Additionally, the General Counsel filed a motion to correct the record in designated re- spects.3 On 2 February 1987, Respondent filed opposi- tion to the General Counsel's motion to strike portions of its brief, and on 13 February 1987, it filed opposition to the Charging Party's motion to strike portions of its brief.4 sa See generally Isis Plumbing Co., 138 NLRB 716 (1962). " 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. 1280 NLRB 670 (1986). a 280 NLRB 678 (1986). a The motion to correct the record was unopposed. It is granted. 4 Although the motions to strike portions of Respondent's brief appear to be partially meritorious, I find it unnecessary to extend this decision by discussing them and ruling on them as my findings are based on record evidence. 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record, and from my observation of the witnesses who appeared to give testimony, I make the following FINDINGS OF FACT Respondent, a sole proprietorship, with its principal office located in Washington, D.C.,5 with a place of business in Morgantown, West Virginia, is engaged in the business of providing research assistance and other services to, inter alia, agencies of the United States. Its gross revenue for the performance of such services throughout the United States exceeds $ 1 million annual- ly, and it admits that during the 12-month period ending 30 April 1982, it provided services valued in excess of $50,000 to the United States Government within the State of West Virginia. Its Morgantown, West Virginia operation is the only operation immediately involved in the instant case. On the above facts, I find that Respondent meets the Board's monetary standards for assertion of jurisidiction over nonretail enterprises. The Division of Respiratory Disease Studies, Labora- tory Investigations Branch of the National Institute for Occupational Safety and Health (NIOSH) conducts a va- riety of pulmonary research experiments and projects at its Appalachian Laboratory for Occupational Safety and Health (the facility) which is located in Morgantown, West Virginia. The experiments are accomplished by ex- posing small animals such as rats and rabbits to aerosols such as mineral dusts, metals, organic dusts, and cotton dust. Thereafter the effect of the exposures on various organs of the animals is analyzed by NIOSH scientists. During calendar years 1981 and 1982, Respondent per- formed services at the facility pursuant to four contracts with U.S. Government agencies. Two of the contracts required Respondent to perform specified animal care and/or husbandry and animal research support functions for NIOSH.6 Those contracts were between the Small Business Administrative (SBA) and Respondent, and were assigned by SBA to NIOSH when negotiations had been completed. A third contract required Respondent to furnish two lab technicians who were to assist NIOSH scientists in the conduct of experiments involving the ex- posure of animals to cotton dusts. That contract was be- tween the United States Department of Agriculture (USDA) and Respondent, and it was valued at approxi- mately $40,000.7 The fourth and final contract required Respondent to man the library at the facility with a li- brarian and a library aide. It, like the animal husbandry and animal research support contracts, was between SBA and Respondent, but was assigned to NIOSH for administration and payment.8 Respondent contends that various U.S. Government agencies exercise such pervasive control over the terms and conditions of employment of its employees working at the above-described facility that it is unable to engage in meaningful collective-bargaining with a labor organi- zation. It contends that application of the principles enunciated by the Board in Res-Care, Inc., supra, should cause me to find that the Board will not assert jurisdic- tion over its Morgantown, West Virginia operations. Counsel for the General Counsel and the Charging Party contend Respondent retains sufficient control over the terms and conditions of employees to permit it to bargain meaningfully with a labor organization. The scope and degree of control exercised by the exempt en- tities over Respondent's labor relations and the controls over essential terms and conditions of employment re- tained by Respondent are sumarized below. Status of Contractor The animal care and animal research support contracts and the library contract specifically provide that Re- spondent was to perform its services independently, rather than as an agent of the Government. Wage and Fringe Benefits While Dr. Hicks, Respondent's executive director, tes- tified that Respondent proposed wage rates for the em- ployees who would be performing the services required by the above-described contracts, and NIOSH and USDA agreed with Respondent's proposals, the 1981 and 1982 contractors in evidence do not indicate the wages to be paid to employees in various job classifica- tions. The record does suggest, however, that the fixed fee library contract contained reference to the total com- pensation to be paid to Respondent for each hour the li- brarian and the library aide worked, as the information sent to Respondent by NIOSH when it was invited to submit a bid for the work reveals that during perform- ance of the contract commencing 10 October 1980 and ending 30 September 1981, Respondent was to be paid a fixed fee, with amounts payable to be calculated by reim- bursing Respondent $7.96 for librarian hours worked, and $4.98 for library aide hours worked.9 The document further provided: The rate, or rates, set forth covers all expenses in- cluding report preparation, salaries, overhead, gen- eral and administrative expenses, and profit, exclud- ing costs for travel and per diem which are reim- bursable in accordance with Article XXIV-Travel and Per Diem. 5 At the time the original unfair labor practice hearing was held, its principal office was located in Rockville, Maryland. 6 See G.C. Exhs. 12 and 30. The contracts were No. 210-81-2117, a cost reimbursement contract, effective from 11 June 1981 to 10 June 1982, which was valued at $123,037, and No. 210-82-2104, a cost reim- bursement contract effective from 1 August 1982 to 31 July 1983, which was valued at $178,208. 7 The contract, No. USDA 53-7B30-1-379, was not placed in evi- dence. 8 A document sent by NIOSH to Respondent when the latter was in- vited to bid work appears in the record as G.C. Exh. 28(a). Excerpts of While no wage rates for employees performing serv- ices pursuant to the animal care and animal research sup- port contracts (NIOSH through SBA), and no rates for the contract, No. 12-80-0006, are attached to G.C. Exh. 29. It was effec- tive from I October 1981 to September 1982, and was valued at $57,000. The record reveals Respondent provided the same library services during calendar years 1979 and 1980 for $50,000 per year. 8 The representation case record reveals the library aide was given a wage increase by Respondent. EBON RESEARCH SYSTEMS 767 the technicians who were to provide services pursuant to the USDA contract are set forth in those contracts, Dr. Hicks claimed during her testimony in the representation case that the U.S. Department of Labor (DOL) issued wage determinations that were applicable to those con- tracts. She further testified that the wage determinations set forth the minimum and maximum rates that could be paid to employees in the various job classifications. Such alleged wage determinations were not placed in either the representation case record or the record in the in- stant case. In the absence of documentary support, I find Dr. Hicks' claim that DOL issued wage determinations that set maximum rates for employees in job classifica- tions to be suspect and accord it no weight. A copy of the Service Contract Act, as amended,' ° was placed in evidence as General Counsel's Exhibit 34. Inspection of that act reveals that wage determinations issued by DOL set forth "minimum," "prevailing rates," or rates set forth in collective-bargaining agreements. With respect to fringe benefits, the record reveals Re- spondent's employees performing work at the Morgan- town facility receive sick leave, annual leave, and holi- day benefits that conform to those received by NIOSH employees. Additionally, they receive accident and health benefits pursuant to Respondent's own plan, which is based to some extent on seniority . While none of the contracts described above indicate the specific fringe benefits employees performing work pursuant to the contracts will receive, I note the 1981-1982 animal care and animal research support contract between NIOSH (through SBA) and Respondent was renegotiat- ed on 27 July 1982 and the new agreement indicated Re- spondent would be reimbursed at the provisional rate of 23 percent of total direct labor dollars for fringe benefits during the period 1 August 1982 through 30 September 1983." Dr. Hicks testified she satisfied the fringe benefit requirement imposed by the Service Contract Act by proposing to pay stated fringe benefits that the contract- ing officer approved . According to Hicks, the contract- ing officer was obligated to assure that the fringe benefit payments proposed by Respondent met the requirements of DOL.'a While the record fails to fully reveal the extent to which involved exempt entities control the wages and fringe benefits received by Respondent 's employees who perform work at the Morgantown NIOSH facility, it does reveal that the contracts described above specifical- ly make the general conditions set forth in HEW Docu- ment 3/16 (Rev. 7/76), entitled "General Provisions for Negotiated Cost-Plus-Fixed Fee Type Contract,"'s applicable to the contracts . Insofar as is here relevant, that document requires Respondent to pay contract em- ployees time and one-half their hourly rate for time worked in excess of 8 hours in a workday or for time worked in excess of 40 hours in a regular workweek. Additionally, it provides a mechanism for renegotiation of the contractor's labor cost increases during the term of the contract.'' Leaving the matter of direct exempt entity control of wages and fringe benefits, I note the above-mentioned contracts contain certain indirect provisions that regu- late, to some extent, the moneys Respondent must pay its employees at the facility. Thus the animal care and animal research support contracts require that Respond- ent supply sufficient services "commencing at 8:00 a.m., on all Federal holidays, Saturdays, and Sundays, in order to satisfactorily accomplish regular animal husbandry ac- tivities and/or technical support project support as re- quired to meet various task goals."' a Such contracts fur- ther indicate emergency services outside those hours should be provided pursuant to an "on call" system. Similarly, the library contract(s) specifically provides personnel assigned by the contractor will work only on a straight time (8 hours per day) basis, and that when such personnel are on unauthorized vacation or sick leave a replacement with comparable qualifications will be pro- vided by the contractor.' ° While Respondent's agreement to provide the services set forth in the above-described contracts for stated amounts place some rather obvious restrictions on its ability to grant contract employees increased remunera- tion during the term of the agreements , it is uncontra- dicted that Respondent is not precluded from increasing the wage or fringe benefits of its employees by any of the contracts. Dr. Hicks admitted during her testimony that she could utilize profits to increase wages or bene- fits. Moreover, as indicated by General Counsel Robert Edgill, whose qualifications include 10 years of negotiat- ing, implementing, and monitoring services contracts as a Government employee, machinery is provided to permit renegotiation of contracts when direct labor costs in- crease during the term of a service contract. Control Employees The contracts between Respondent and the Govern- ment entities involved in this case each contain general provisions relating to contract employees such as: the hours during which they are to work; detailed descrip- tions of the work to be performed; qualifications employ- ees should possess; the areas of the Morgantown facility in which they will perform their duties; and indication that NIOSH will issue them passes and a requirement that they abide by NIOSH safety rules; and indication that the Government will provide support functions such as mail handling, security, communications, and xerox- ing. Additionally, the animal care and animal research support contracts indicate, inter alia, that contract em- ployees will abide by certain NIH guidelines and the Animal Welfare Act when caring for animals; that cage washing and sanitation will be accomplished in accord- ance with standard written procedures; that all wearing 10 41 U.S.C. § 351 et seq. 11 See G.C. Exh. 30, p. 36. is The record fails to reveal such fringe benefit provision was included in the contract because DOL had issued a wage determination applicable to the contract. 23 Now HHS-316 (Rev. 7/76). '4 See G.C. Exh. 32, pp. 1, 2 (Limitations of Cost), and 30 (Contract work Hours and Safety Standards Act-Overtime Compensation). 15 See for example G.C. Exh. 12, p. 6. 16 See G.C. Exh. 28(a), p. 4. The contract also permits the librarian's testimony in the representation can reveals the employees exercised that option. 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD apparel, cleaning agents, laundry, and special safety equipment will be selected in consultation with the NIOSH project officer; that all supplies will be furnished by the Government; that NIOSH must approve the use of all insecticides and rodent entrapment devices, ap- prove the site for use of incineration equipement for the disposal of animal carcasses; and that Government em- ployees will dispose of all animal carcasses contaminated with hazardous materials. In addition, the contracts involved herein provide that NIOSH has the authority to provide "technical direc- tion" to Respondent's employees who perform work at the facility. Technical direction is defined in the 1981- 1982 animal care and research animal care contract to in- clude the following: a. Direction to the Contractor which redirect the contract effort, shift work emphasis between work areas or tasks, require pursuit of certain lines of in- quiry, fill in details or otherwise serve to accom- plish contractual statement of work. b. Provisions of information to the Contractor which assists in the interpretation of drawings, spec- ifications or technical portions of the work descrip- tion. c. Review and, where required by the contract, approval of technical reports, drawings, specifica- tions and technical information to be delivered by the Contractor to the Government under the con- tract. Witness Fredrick Ames, the administrator of the NIOSH Division of Respiratory Disease Studies at the facility, clearly indicated during his testimony that the authority to give technical direction did not confer supervisory au- thority on NIOSH personnel who worked with Re- spondent personnel. He characterized as illegal attempts by NIOSH personnel to supervise contract personnel, in- dicating NIOSH personnel were constantly told not to engage in such activity. While NIOSH, by virtue of contractual provisions, ex- ercised the above-described control over Respondent's employees working at the Morgantown facility, the record reveals Respondent retained marked control over those employees. Thus, Dr. Hicks testified that while NIOSH indicated the work to be performed and enlight- ened her regarding the skills and education required, she, frequently assisted by Dr. Lee Richmond, director of Respondent's Health Division, interviewed applicants and decided which applicants interviews, Respondent was not obligated to follow any suggestions such individ- uals made, and was free to hire those applicants it de- sired to hire. The record reveals the Respondent personnel working under the animal-related contracts received their day-to- day supervision from Ed McCabe, Respondent's project coordinator. The library aide was supervised by Collen Harrington, the librarian. Both McCabe and Harrington reported to Hicks, frequently through Richmond. While the library functions dictated the work to be performed by the library aide, McCabe prepared work schedules for the animal research technicians. The technicians who performed work pursuant to the USDA contract worked with the same team of scientists constantly, but the tech- nicians working under the original SBA (NIOSH) con- tract worked 1 day each week in the animal care quar- ters and the remaining 4 days in a laboratory. Mechnical- ly, NIOSH personnel submitted requisitions for assistance to McCabe indicating the assistance they needed and the timeframe involved, and McCabe then scheduled em- ployees to fill the requests. In event NIOSH personnel were not satisfied with the performance of Respondent personnel, McCabe was notified and he, Richmond, or Hicks handled the problem. Hicks testified any com- plaints voiced by NIOSH concerning her personnel were independently investigated before action was taken. She alone retained and exercised the authority to fire Re- spondent personnel. While the record reveals NIOSH personnel, principal- ly Major Purvis, the project officer, reviewed the per- formance of Respondent contract personnel to ascertain whether Respondent was fulfilling its contractual obliga- tions, the record reveals Respondent evaluated the per- formance of its employees at the end of their probation- ary period, once each year, and it conducted exit inter- views and evaluations at the end of each contract period if employees were terminated at that time. If NIOSH was not satisfied with Respondent's performance of its contractual obligations, its recourse was to terminate the contract. The record reveals none of the contracts described herein preclude Respondent from entering collective-bar- gaining agreements. In addition, they pose no limitations in the common areas of collective-bargaining such as use of seniority systems, grievance procedures, retirement plans, profit sharing, and health insurance. The Service Contract Act During the resumption hearing, the General Counsel placed the Service Contract Act in evidence. Respond- ent does not dispute the contention that the contracts in- volved herein, which are all for amounts exceeding $2500, subject it to the provisions of that Act. The Gen- eral Counsel contends the following provisions of the Act are relevant. Section 351(a)(1) which states: (a) Every contract (and any bid specification therefor entered into by the United States or the District of Columbia in excess of $2,500, except as provided in section 356 of this title, whether negoti- ated or advertised, the principal purpose of which is to furnish services in the United States through the use of service employees shall contain the follow- ing: (1) A provision specifying the minimum mone- tary wages to be paid the various classes of serv- ice employees in the performance of the contract or any subcontract thereunder, as determined by the Secretary, or his authorized representative, in accordance with prevailing rates for such em- ployees in the locality, or, where a collective-bar- gaining agreement covers any such service em- EBON RESEARCH SYSTEMS ployees, in accordance with the rates for such employees provided for in such agreement, in- cluding prospective wage increases provided for in such agreement as a result of arm's-length ne- gotiations. In no case shall such wages be lower than the minimum specified in subsection (b) of this section. Section 351(a)(2) states: (2) A provision specifying the fringe benefits to be furnished the various classes of service employ- ees, engaged in the performance of the contract or any subcontract thereunder, as determined by the Secretary or his authorized representative to be pre- vailing for such employees in the locality, or, where a collective-bargaining agreement covers any such service employees, to be provided for in such agree- ment, including prospective fringe benefit increases provided for in such agreement as a result of arm's- length negotiations. Such fringe benefits shall in- clude medical or hospital care, pensions on retire- ment or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment bene- fits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise re- quired by Federal, State, or local law to be provid- ed by the contractor or subcontractor . The obliga- tion under this subparagraph may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or different pay- ments in cash under rules and regulations estab- lished by the Secretary. Section 353(c) states: (c) No contractor or subcontractor under a con- tract, which succeeds a contract subject to this chapter and under which substantially the same services are furnished, shall pay any service em- ployee under such contract less than the wages and fringe benefits, including accrued wages and fringe benefits, and any prospective increases in wages and fringe benefits provided for in a collective-bargain- ing agreement as a result of arm 's-length negotia- tions, to which such service employees would have been entitled if they were employed under the pred- ecessor contract: Provided, that in any of the forego- ing circumstances such obligations shall not apply if the Secretary finds after a hearing in accordance with regulations adopted by the Secretary that such wages and fringe benefits are substantially at vari- ance with those which prevail for services of a character similar in the locality. Analysis and Conclusions In Res-Care, Inc., supra, the Board reaffirmed the test set forth in National Transportation Service, 240 NLRB 565 (1979), for determining whether it would assert juris- 769 diction over an employer with close ties to an exempt Government entity, stating 280 NLRB at 672: the inquiry would be whether the employer itself met the definition of an "employer" in Section 2(2) of the Act and, if so, whether the employer retained sufficient control over the employment conditions of its employees to enable it to engage in "effec- tive" or "meaningful" bargaining with a labor orga- nization. Thereafter, the Board indicated that National Transporta- tion and its progeny failed to set forth a clear explanation of the elements of effective or meaningful bargaining, noting the decisions failed, in particular, to define (a) those areas of an employer's labor relations that are suffi- ciently important that the employer cannot bargain meaningfully if the exempt entity removes or severely re- stricts the employer's discretion, and (b) the circum- stances under which the Government entity will be deemed to have removed or severely restricted such dis- cretion. It then stated that, in applying the above-quoted test, it would examine closely the control over essential terms and conditions of employment retained by the em- ployer as well as the scope and degree of control exer- cised by the exempt entity over the employer's labor re- lations to determine whether the employer in issue is ca- pable of engaging in meaningful collective bargaining. The facts set forth supra, reveal that Respondent's control over its employees in matters other than their re- muneration is marked . Thus, Respondent has the right to hire, fire, transfer, reprimand, supervise, and evaluate its employees independent of significant interference from any Government entity. Moreover, it is free to determine the policies it will follow with respect to collective-bar- gaining subjects such as establishment of grievance pro- cedures, seniority plans, pension or profit-sharing plans, life insurance plans, and health insurance plans. Indeed, it is free to decide whether it will oppose or accept its em- ployees' desire to have a labor organization represent them in bargaining. While NIOSH dictates that employ- ees will work stated hours, will work in specified areas, will comply with facility's safety regulations, and will otherwise conduct themselves in a fashion that will permit it to achieve its objectives, it exercises only tech- nical direction over the employees when they are actual- ly performing their contract services. I find Respondent exercises virtually complete control over the day-to-day activities of its employees, and it retains marked control over labor policies it will pursue. In the instant case, unlike the situation before the Board in Res-Care, Inc., supra, or Long Stretch Youth Home, supra, the Respondent-Employer was signatory to contracts with Government entities that were subject to the Service Contract Act. Employers subject to that Act are required to pay employees the prevailing wage and benefits received by workers in the area where perform- ance of the contract work is to be accomplished. In the absence of issuance by DOL of a wage determination ap- plicable to a given contract, the employer must pay its employees the statutory minimum wage. Patently, the Service Contract Act encourages covered employers to 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD determine the wage and benefits their employees will re- ceive through collective bargaining with a labor organi- zation, as the Act affords the employer and his employ- ees protection from unfair competition when a given contract is open for rebidding. As noted above, the record in the instant case fails to reveal whether DOL issued wage determinations appli- cable to the four contracts described. It does reveal, however, that Respondent exercised considerable discre- tion in determining the wages and fringe benefits that its employees would receive. Thus Hicks' testimony reveals Respondent made initial determinations with respect to those matters and her decisions were then reflected in proposals that were accepted by the SBA and USDA contracting officers. Significantly, the record fails to reveal that any of the contracts thereafter entered by Re- spondent placed any upper limit on the wages or fringe benefits Respondent could award to its employees. As contended by Respondent, the fact that it agreed to perform stated services for a stated dollar amount places a very real limitation on its ability to grant wage or fringe benefit increases to its employees during the term of any given contract. This is particularly true with re- spect to the USDA contract and the library contract as both indicate Respondent would furnish two employees to supply the services called for by the contracts. Addi- tionally, the library contract indicates the rate per librari- an and library aide hours worked at which Respondent will be reimbursed. Respondent was not so limited with respect to the animal care and animal research support contracts, however, as it was not contractually obligated to employ a specified number of employees by those contracts. Here, as in Res-Care, it is clear that to obtain more contract money for employee remuneration Re- spondent was required to convince the appropriate con- tract officer that approval of a request for more money was in the interest of the Government. The General Counsel and counsel for Charging Party both cite Zapex Corp. v. NLRB, 621 F.2d 328 (9th Cir. 1980), and NLRB v. Pope Mfg. Corp., 573 F.2d 898 (5th Cir. 1978), in their briefs. In both cases, the Board, with court approval, asserted jurisdiction over employers per- forming services for fixed amounts under contracts sub- ject to the Service Contract Act. My review of those cases causes me to conclude the Board will not refuse to assert jurisdiction over an employer who contracts to perform work for a U.S. Government entity merely be- cause it agrees to perform stated services for a stated dollar amount, and it is required by law to pay its em- ployees certain minimum wages and a stated level of fringe benefits. In sum, the record reveals Respondent is exclusively responsible for the formulation of labor policies and pro- cedures regarding hiring, firing, supervising, evaluating, scheduling, and disciplining of employees performing work at the Morgantown facility . Further, its contracts with Government entities place no restrictions on its ability to negotiate with a labor organization concerning bargaining subjects such as pensions , grievance proce- dures, seniority, or other similar matters related to the terms and conditions of employment of employees. While Respondent's contracts, like the employer's con- tract in Res-Care, restrict its ability to increase employee remuneration because Respondent has agreed to provide stated services for a stated dollar amount , Respondent's situation differs from that of the employer in Res-Care as none of its contracts except the library contract make any reference to the wages to be paid to its employees, and none of the contracts contain any provisions that control the maximum wages or fringe benefits it can award its employees. While the instant employer's con- tracts are subject to the Service Contract Act, that act does not restrict Respondent 's ability to engage in collec- tive bargaining. Indeed, it encourages such action and af- fords subject employers protection from competitors once arm's-length bargaining has occurred. In the cir- cumstances described, I find that while Government enti- ties exert substantial control over the wages and fringe benefits to be received by Respondent's employees, that control is not pervasive within the meaning and intend- ment of Res-Care.17 In my view, Respondent can engage in meaningful collective bargaining with a labor organization with re- spect to the terms and conditions of employment of its employees. Accordingly, I fmd it would effectuate the policies of the Act to assert jurisdiction over Respond- ent's operations.18 IT At fn. 22 of Res-Care, supra, the Board indicated that DOL's ap- proval of Res-Care's budget, when considered in conjunction with the wage ranges and benefit levels approved, by DOL, constituted the direct limits on employee compensation that constitute control of employee re- lations, and not the fact that DOL placed an effective ceiling on such expenditures by limiting Res-Care's total budget. Here, only the contract price constitutes a contractual limit on the compensation Respondent's employees can receive. Neither the contracts nor the law (Service Con- tract Act) restrict the maximum wage or benefit levels that Respondent can utilize. Such factors clearly distinguish this case from Res-Care, supra 18 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings and conclusions herein shall, as pro- vided in Sec. 102.48 of the Rules, be adopted by the Board and all objec- tions to them shall be deemed waived for all purposes.