Martin Marietta Corp.

MARTIN MARIETTA CORP 719 Martin Marietta Corporation and Milan Davich Case 12-CA-12708 April 20, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On October 18, 1988, Administrative Law Judge Benjamin Schlesinger issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Martin Marietta Corporation, Orlando, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order i The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judges credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Member Johansen who did not participate in Meyers agrees that at the least the Meyers definition of concerted activity is satisfied here as explained by the administrative law Judge See Meyers Industries 281 NLRB 882 (1986) (Meyers II) affd sub nom Pell v NLRB 835 F 2d 1481 (D C Cir 1987) Margaret J Diaz Esq, for the General Counsel W Bruce Swain Esq and Matthew Coyle Esq, of Bethes da, Maryland, for the Respondent Milan Davich Jr of Orlando, Florida, for the Charging Party DECISION BENJAMIN SCHLESINGER, Administrative Law Judge About 6 50 a in on Friday September 18, 1987,' Charg ing Party Milan Davich Jr posted the following notice in the two breakrooms on the second floor (the balcony) of the General Services Building Annex (the fab shop) of the Sand Lake Road facility of his employer Respondent Martin Marietta Corporation i All dates refer to 1987 unless otherwise stated IF YOU DON T LIKE BEING POISONED BE AT THE LION S DEN FOR CHANNEL 9 at 3 45 TODAY He was suspended that morning and discharged on Monday, September 21 The complaint in this proceed ing dated January 14 1988 alleges that Davich was en gaged in concerted and protected activities and that Re spondent violated Section 8(a)(1) of the National Labor Relations Act, 29 U S C § 151 et seq, by suspending and discharging him 2 Respondent denies that it violated the Act in any manner Jurisdiction is conceded Respondent is a corporation with an office and place of business in Orlando, Florida, where it engages in among other things the design and fabrication of missiles In its operations, it annually sells and ships from that facility products, goods and maten als valued in excess of $50,000 directly to points outside Florida and purchases and receives such products valued in excess of $50,000 directly from points outside Florida I conclude, as Respondent admits, that it is an employer within the meaning of Section 2(2), (6) and (7) of the Act Davich posted his notice as a result of the outbreak of what Respondent refers to as the mysterious illness On Friday morning, July 24, employees on the balcony, particularly in an area known as TADS, began to report to Respondent's medical office and, as the morning pro gressed more and more reported, variously complaining of headaches, stinging red and sore eyes, sore throats, dizziness, nausea and hyperventilation As the numbers grew, and as the situation escalated, Respondent recog nized that it could not handle the crisis alone, with its staff of one doctor and four nurses, so a call was placed to the Orange County Fire and Rescue Facility, which responded with many ambulances and sufficient people with equipment that would allow them to enter an area that might be hazardous The entire building was evacu ated, not only the balcony, with its 350 employees, but also the first floor, where another 350 employees worked About 11-12 employees who were showing very real physical symptoms were taken to the emergen cy room of a local hospital The other employees whose complaints were less severe were taken to a cafeteria where they were asked whether they desired to go to a hospital About 42 or 45 employees elected to go, and they were taken by ambulance All were examined and released Respondent contacted the Occupational Safety and Health Administration (OSHA) office in Tampa in formed it of the situation, and that day and over the weekend tried to determine what had happened by con ducting various tests of air samples and examining van ous products Respondent's industrial hygienist and safety and medical staff found no conclusive cause and, on Monday the employees returned to work and work continued for a month without incident 2 The additional relevant docket entries are Davich filed his unfair labor practice charge on September 29 and amended it on October 21 1987 and the hearing was held in Orlando Florida on March 16-18 1988 293 NLRB No 89 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, precisely 1 month later on Monday August 24, the July incident repeated itself, with large numbers of employees from the balcony and also some from downstairs reporting to the medical office and complain ing of the same symptoms Eleven employees were trans ported to emergency rooms, were examined, and were released The building was not evacuated and employees continued to work that day and Tuesday, during which there was no outbreak of complaints similar to the day before But Respondent was wary and, either that Monday or Tuesday it hired four more doctors and five nurses and opened two more medical facilities as a pre caution It called OSHA and met with Art McLaughlin from the Tampa office either August 25 or 26 and he conducted some preliminary testing, and Respondent also began to contact other outside help In the meantime, the incident reoccurred on Wednes day, August 26, when 19 employees were sent to the hospital, where all were examined and released At midday, the building was shut down and the employees were sent home Again, on Thursday, August 27, the employees complained of the same symptoms, and by midmorning 29 employees had been sent to the hospital and a decision had been made to shut down the building, to send all employees home and not to reopen until at least the following Monday Of the 29 employees, 2 were kept in the hospital for overnight observation and were released the following day The others were released on Thursday Almost all those who had suffered some of the symptoms had no symptoms by the time that they were examined at the emergency rooms During that week, McLaughlin called in Bill Demery, the chief industrial hygienist from the Tampa OSHA office, and he in turn contacted other OSHA officials for help, as a result of which a special OSHA blue ribbon task force was called in from Salt Lake City, all of whom were specialists in industrial hygiene In addition, medical experts were retained by Respondent and OSHA a specialist in occupational medicine a toxicolo gist, a bacteriologist, and two epidemiologists Samples were taken of the air residues, water and food, and spores and bacteria, tests were conducted of radioactiv ity, vibrations and ultrasonic emmissions and blood sam pies were taken from some of the employees In order to ease the employees fears, Respondent scheduled meetings on August 27 to explain to them what was happening, what Respondent was doing and what some of the test results were 3 It met with the bar gaining and safety committees of its collective bargaining representative, the United Automobile Workers (the Union) Weekly bulletins were printed and distributed to all employees Finally when all the tests had been per formed and all the data analyzed, four 2 hour meetings with the employees, about 140 attending each one, were held on September 17 at which a panel of the experts made presentations and then entertained questions from the employees In general, the report was inconclusive It was too late to determine the cause of the July 24 inci 8 Seven meetings were scheduled that day for about 40 employees each Because of the outbreak of the illness that day and the closing of the building only three meetings were held dent, which was probably a reaction to some chemical As to the incidents that occurred from August 24-27 the tests showed nothing abnormal One speaker said that all levels of chemical and toxicity were well within OSHA s guidelines and well within the stricter guidelines that Re spondent used The illness remained mysterious and the August events might even be blamed on the employ ees emotional reactions, a mass hysteria, rather than some physical cause The reaction of most employees was placid They were apparently convinced that there was little to worry about and that Respondent had done its utmost to ascer tarn the cause of the illness Davich was an exception As early as the meeting he attended on August 27 he was very vocal, accusing Respondent of not telling the em ployees the truth and not telling them what were the real chemicals that were used on the balcony Respondent's representative replied that it had done so and noted that there was an article in the newspaper the day before that listed the chemicals Davich insisted that there were more chemicals being applied on the balcony, and that Respondent was either not telling the truth or was en gaged in a coverup At the meeting on September 17, Davich asked Demery when the experts had become aware that pests cides had been sprayed on the balcony to control an in festation of southern mites (This became the key issue to those who did not agree with the experts There had been a spraying and later the sealing of a stairwell near the TADS group to prevent the infestation) Demery re plied that he had been advised the first day that he walked into the facility (about 10 days after the first August incident) that he had reviewed all the materials concerning the use of the pesticides and that it was the panel s conclusion that pesticides were in no way a factor for the medical incidents that had occurred Dr Stanley Haimes an OSHA consultant in occupational medicine from the University of Southern Florida ampli feed that the symptoms that he had observed in the em ployees and in their medical evaluations were exactly op posite to the kinds of symptoms that could be expected from the exposure to the insecticides that Respondent and its spraying contractor had reported had been used Davich said that neither Respondent nor its contractor was telling the truth and that Respondent was engaged in a coverup 4 Despite Davich s adverse criticism I do not think that there can be any serious contention that Respondent was not trying in good faith to ascertain what had happened However several conclusions can be drawn from the meeting First none of the experts had a definitive answer to the cause of the illness and at best, all they were able to do was to give some guesses about what caused the illness and what did not The following state ments are illustrative `[W]e are very puzzled We * Davich s claim of lying and a coverup was based in part on his alle gations that Respondent pressure-cleaned the entire building prior to OSHA s inspection that when the illness first occurred Respondents representatives were looking for a gas leak when there were no gas pipes on the floor and that on the first outbreak of the illness Respondent failed to conduct chemical blood tests of those who became ill MARTIN MARIETTA CORP really cant sink our teeth into anything specific , I cannot say what exactly it is that happened [W]e haven't found anything yet that you need to hear, we don t really expect to, but we are certainly looking, and will continue to look, and will for as long as it takes to reach a conclusion , and I am not sure that we will ever be able to find out exactly what happened then in July and August 5 Second, there is no question that Davich had much to say at the meeting, some of it caustic But Davich was not alone in his comments My overriding impression is that some employees were concerned, very concerned, about their hair falling out, about urinary infections, about long term effects of whatever happened, and about why Respondent had removed all pregnant women from the balcony Some female employees joined Davich in complaining that they had not been advised by Respond ent until recently of the use of pesticides, that they were told that no sprays could be used on the balcony because of the harm that could be done to the hardware that they were using and constructing, and that Respondent had attempted to cover up its use of the pesticides by placing daisy stick ups on the walls to hide the smell Other employees joined Davich in belittling the sugges tion that the illness was caused by a curious virus, which, if the suggestion were true, according to Davich affected only people who lived in Tampa and who worked on the balcony Some expressed their approval of his pointed criticism of Respondents experts, who argued that the pesticide could not have been the cause of what they had suffered, while Davich argued that the employees on the balcony were the only ones who became sick and their work area was the only one that had been sprayed With the conclusion of that meeting and the other meetings of that day, Davich thought that Respondent assumed that the fears of its employees would be quieted and that, hopefully, there would be no further incidents and no further need to discuss the mysterious illness again The case had been closed, and the illness would be merely a bad memory Respondent would announce to the media that it had done its best had fulfilled its ob ligations to its employees and had ensured that its place of business presented a healthy work environment for its employees Davich, however was not so easily pacified He decid ed to keep the case open by making his own views known After the meeting he asked coworker Bonnie Van Zant one of the few who agreed with his views what she thought of his calling Channel 9 for an inter view She wished him good luck, noting that she had called the television station the night before and no one had returned her call Davich did so and was advised that Channel 9 would air his response but time was of the essence At about 6 40 the following morning, he dis cussed with Van Zant what he should do and they con curred that the workers who were still concerned about 5 In a report issued long after Davich s discharge Dr Haimes wrote It is considered likely that the July event was precipitated by chemical exposure of unknown etiology and that the absence of appropriate labo ratory data taken at the time of the July and August events made it im possible to compare the events 721 the illness should present their own side of the story that afternoon and that a notice ought to be posted Thus, there followed the notice, quoted above on the first page of my decision and Davich's suspension and discharge 6 Respondent contends that there were a number of rea sons for its discipline of Davich, but I find that there was little more than one reason David Balk, Respondents di rector of employee relations and services, stated in his in vestigatory affidavit given to the Board's Regional Office that he made the ultimate decision to indefinitely sus pend and then discharge Davich who was indefinitely suspended for the posting of notices in the plant on or about 9/18/87 This conduct of Davich's was objectionable because the notices were absolutely false, inflammatory, and damaging to the Company s reputation in the community Also, in my opinion, posting of the notices was con duct by which Davich was carrying out his previ ous threats to `get the Company The posting of the notices on or about 9/18/87 was also the triggering event for the discharge of Davich I also considered the conversations I had had with Davich in which he threatened to get the Company and the 2 group meetings I had attended at which Davich was disruptive in deciding to discharge him I was also aware in deciding to dis charge Davich that he had had conversations with Thomas Mallis which were similar to my conversa tions with Davich in which Davich had also threat ened to get the Company I concluded that Da vich's disruptive conduct at the meetings and post ing of the notices were his way of carrying out his vendetta against the Company Mallis, Respondents manager of employee relations, stated in his affidavit that it was on his recommendations that Balk s decisions were made Mallis was not present at Respondents facility on September 18 but was advised by John Gill Respondents chief of personnel manage ment that there was a disruption in the balcony and that employees were upset Gill said that there was a post ing put up on a number of bulletin boards " he described the notice and he blamed Davich, although Gill admit ted that his information was second hand Mallis instruct ed Gill to confront Davich about whether he wrote and posted the notice and to call Mallis back Gill followed those instructions and confirmed to Mallis that Davich had written these notices and posted these notices in several areas of the plant Before Gill called back Balk and Mallis `had decided that if Davich was responsible he should be indefi nitely suspended Mallis explained s Although Davich was discharged on Monday September 21 3 days after his suspension Respondent relied on no fact that occurred after his suspension to justify its discipline of him Thus Davich s television inter view had no bearing on his discharge-Davich merely said that he thought that the illness was caused by the insecticide-and from Friday to Monday Respondents investigation merely reaffirmed the information Balk had at the time he ordered Davich s discharge 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The problem as I saw it at that point in time when we told Gill to suspend Davich was the content of Davich's notices-he made a controversial and damaging statement in the notices at a time when employees' sensitivity was high due to the prior al leged medical problems I felt that Davich was car rying out his earlier threats to damage the Company in any way he could After Davich was suspended David Balk and I made the decision to discharge him after reviewing the entire sequence of his statements and behavior, Balk and I concluded that it was not in the best in terest of the Company to continue employing an employee who had extremely bad feelings toward the Company, who had threatened the Company, and who was beginning to carry out some of his threats In addition to the incident of 9/18/87 Balk and I reviewed Milan s May 29 conversation with me a similar conversation Balk had with Davich which Balk told me about, and Davich s conduct at a couple of group meetings where Davich was disruptive that at one meeting Davich was continually disruptive, making accusa tions that the Company was not telling the truth [and] a second meeting Davich got up, raised his fist and said that the Company was lying to us and words to the effect that the Compa ny was trying to kill or poison employees These two affidavits, both dated October 23, are sig nificant for the absence of any reference to the fact that Davich posted the notices without Respondents permis sion, in locations that were not allowed by Respondent, and in places in open view of the production employees, three objections relied on extensively by Respondent at the hearing and in its beef The affidavits were taken from Balk and Mallis in the presence of Respondent's counsel W Bruce Swain, and both Balk and Mallis were asked to state their reasons they had disciplined or rec ommended disciplining Davich and omitted the reasons now relied on for their actions 7 In fact, Swain submitted a position statement dated October 28, stating the same reason Balk instructed that Davich be suspended because his conduct was objectionable due to the false and inflamatory [sic] nature of the postings and potential damage [to] the Company s reputation in the com munity It is true that on the following day Swain filed a sup plemental statement of position in which he argued that Davich posted his notices in the wrong location, to wit On September 18, 1987, Davich posted his notice The area in which he posted the notice was the break area The room has large plexiglass windows, to allow persons to see into the factory and vice versa Within the room there is a Company Bulletin Mallis excused his omission of certain reasons for his recommenda tion to Balk on the sole basis that he did not give the representative of the Regional Office all the specifics but he was asked for all his reasons Board, a Union Bulletin Board and a noncontrolled bulletin board Davich posted his notice on the plexiglass windows In so doing, Davich ignored the uncontrolled bulletin board He taped the no tices to the inside of the breakroom windows, in direct violation of written instructions he had re ceived on May 6, 1987 i i there are non-controlled bulletin boards in the plant where personal notices not requiring approval of the Company may be posted Davich was thus entitled to place notices on the uncontrolled bulletin board provided they were otherwise ac ceptable as to content He was not permitted to post on the plexig lass windows of the breakroom-nor was any other employee The fundamental difficulty with this position statement is that the breakrooms in question, contrary to Swain s representations, contained no bulletin boards at all Thus, although he urged in October that Davich s error was in not placing his poster on the bulletin board which was (at least by implication) available, Respondent had to shift its position by the time of the hearing to contend that Davich was disciplined because, to be consistent, no posting in the two breakrooms was permitted There is no mention by Swain, other than in passing, that Re spondent did not give its permission to the posting of the notice, and there is nothing there about the contents being posted on the windows, causing a commotion be cause of the manner in which they were posted Instead, Swain added another reason for Davich' s discipline, a reason that was not relied on by any of Respondent s witnesses at the hearing, probably because it was inaccu rate-that Davich posted his notices during working hours to wit Thus, Davich left his job in order to post the notices in a prohibited area during working hours Such conduct is impermissible No one supported this contention The contention is simply not true Rather, it was made by an attorney to bolster Respondents defense with reasons that he thought might be persuasive in con vincing the Regional Office to dismiss the unfair labor practice charge The placement of Davich s notice might have been a good reason had the interested parties thought of it in September, but I find that neither Balk nor Mallis was motivated by it 8 Even if I were not persuaded that no one relied on the improper location of the notices the evidence shows that no one had ever been discharged for the improper place ment of any notice Rather, supervisors of Respondent testified that when they saw an illegal or unauthorized posting they removed the notice but imposed no disci pline Furthermore, Donald Schaeffer Davich s supervi sor, testified that on September 18, he was in the smok ing breakroom, saw the notice, and removed it because 8 Mallis for example was told that the notices were posted in several areas of the plant primarily in the breakrooms and he testified that he might have been told that they were posted on bulletin boards When he recommended to Balk that Davich should be suspended Mallis did not know whether there were bulletin boards in the breakrooms on the bal cony Although he contended that the location was a factor in his deci sion because the notices were in a work area and would be disruptive to Respondents operations a contention that I do not believe he conceded that his primary concern was the contents of the notice and whether it was posted on the glass was more of a minor point MARTIN MARIETTA CORP 723 of what it stated Schaeffer did not testify that the notice should not have been posted where it was, nor did he ever deny the testimony of Davich and other employees that personal notices had been posted in the breakrooms by other employees, on the walls and on the windows, and left there some for considerable lengths of time Respondent also relies on the fact that the posting caused disruption, and I find that it probably did, al though not for the reasons suggested by Respondent The notices were taped to the windows of the break rooms, but their contents faced into the breakrooms, and not out onto the production floor In other words, Balk inflated the disruption that Davich s notices may have caused because their contents could not be read by some one sitting at a work station Furthermore, Schaeffer tes tified that he removed the notice from the smoking breakroom by 7 a m, which was the employees starting time, so that it seems utterly illogical to contend, as Re spondent does, that the contents of the notice, as posted on the windows, caused any interruption of work Un doubtedly, what caused a disruption was what Davich wrote on the notice, which very few employees actually saw but which was talked about, regarding not only Da vich's nerve in posting such a notice, but also manage ment's removal of the notice and what was going to happen to Davich In addition, Davich's conduct during the hours that preceded his suspension probably did nothing but exacerbate some employees' discontent He sat at his desk, shouting to one and all that the employ ees were being poisoned and that they were too stupid to understand that To the extent that his coworkers valued Davich's opinion (and there is a legitimate question whether he was really taken seriously by the vast majori ty) some employees may have been upset, not only be cause they disagreed with Davich s assessment but also because Davich was discrediting their intelligence On the other hand, since the mysterious illness first ap peared, employees had consistently talked about the issue and disrupted the workplace, and they had not been dis ciplined Furthermore although at the hearing much was made of the disruption caused by Davich, I am persuaded that very little was made of it on the day that Balk made his decision to suspend Davich Balk never talked to Schaef fer Although Schaeffer testified that the workplace was disrupted that morning and some employees confirmed that fact-those employees however, appeared to dislike Davich-Schaeffer never testified that he told any of his supervisors about the alleged disruption, and no one seems to have known anything about the disruption other than Schaeffer and the employees 9 In addition, 9 Although I do not completely discredit the testimony about Davich s disruptive behavior I merely find that his comments and disruption as distasteful as they might have been to some did not prompt Respondent to suspend and then discharge Davich Furthermore to the extent that Mallis testified that Davich was being disruptive I do not credit him be cause he said that Davich was walking about the floor and disrupting em ployees No one corroborated that Davich left his work station and I find that Davich suspecting that discipline was imminent was very care ful not to Schaeffer seems to have been distressed very little by Davich s behavior and did little to stop it In fact it ap pears that Davich continued to do his work, and the per sons whose work was being interrupted (if there were any, because there was no showing by Respondent that it lost any production) were those employees who talked with one another or who wandered over to Davich s work station to engage him in conversation If persons were to be disciplined that morning, those employees should have been, yet Schaeffer did not 10 And if Da vich's conduct at his desk were really troublesome and disruptive, surely Schaeffer would have quieted down, yet Schaeffer did not i i The next reason posited for the discipline of Davich is a type of straw that broke the camel s back defense, that is, that although he was a good worker, he was a rather impossible person, not particularly liked by anyone because of his outspokenness Among the facts relied on by Respondent are that, when his suspension was announced to his coworkers, they cheered, and when he made certain of his statements at Respondent's meetings, he was met with derision, boos, and appeals to shut up His troubles apparently started when, so Davich thought, he was overlooked for a pay raise and job transfer He filed a grievance and, although others received satisfaction on their complaints, Davich did not That led to appeals by letter to Respondents president, chats with and complaints to Balk, an attempt to decerti fy the Union which represented all Respondent's em ployees at the facility, the posting of antiunion literature, for which he was criticized or reprimanded by Mallis, the filing of an unfair labor practice charge by Davich against Respondent as a result of Mallis' alleged limita tion of Davich s right to distribute and post his literature, and the informal settlement of that proceeding, Davich s attempt to file complaints with the United States Depart ment of Labor and then the Federal Bureau of Investiga tion about Respondent's payment of wages to union stewards for the time they spent handling grievances, and perhaps of utmost importance because of Davich s reaction to his treatment and his feeling of being not only overlooked and bypassed but also harassed by Re spondent and his threats to "get the Company and to burn the Company' and 'to damage the Company in any way that he could 12 10 Schaeffer s testimony that he told employees to return to their worktables and stop talking was denied by some employee witnesses called to testify by Respondent I credit them i i Employee Brenda Sowers testified that she walked over to Schaef fer at about 8 a m to complain about Davich and to ask Schaeffer what he was going to do about Davich s behavior Schaeffer said that the matter would be attended to but he was awaiting instructions from his superior and he never attempted to correct Davich s behavior In addi tion to the extent that Davich was engaging in rather loud diatribes against Respondent this was not unusual for him Because of his prob lems with Respondent and the Union about obtaining a promotion Davich according to Sowers had engaged in similar conduct since August 1986 without warning or discipline 12 To the extent that Davich denied these threats I discredit him The threats together with his desire to take his case (including the mysten ous illness ) to 60 Minutes and Geraldo Rivera are consistent with his psyche 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The difficulty with Respondents position is that many of these incidents happened long before September 18 and, although one might be sympathetic to the plight of Balk and his staff in dealing with Davich s behavior, the issue in this proceeding is what motivated Respondent to do what it did on September 18 and 21 Quite simply, would Balk have terminated Davich if he had not posted his notice on September 18' I am persuaded that Balk would not His investigatory affidavit admits as much by stating that Davich s notices were absolutely false, in flammatory, and damaging to the Company s reputation in the community [and that] posting of the notices was conduct by which Davich was carrying out his prior threats to get the Company 13 Mallis, who was the individual who recommended Davich s suspension and discharge to Balk, confirmed that the problem was the content of Davich s notices-he made a contro versial and damaging statement in the notices at a time when employees sensitivity was high due to the prior al leged medical problems, and he too felt that Davich was carrying out his earlier threats to get the Compa ny ' If his earlier threats 14 constituted a part of Re spondent s motivation, the threats attained significance only because he posted the notices Until that event hap pened, Davich had made only threats for which he was not disciplined Accordingly, without the posting, I find that nothing would have happened to him 15 For this reason, I find that there is no mixed motive for Davich s discipline and reject Respondents defense under Wright Line 251 NLRB 1083 (1980), enfd as modified 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), ap proved in NLRB v Transportation Management Corp, 462 US 393 (1983) The remaining question is whether Davich s posting constituted concerted and protected activity within the meaning of Section 7 of the Act as the complaint alleges Whatever else may be said of the wording of Davich s notice I find implicit in it his request of and invitation to other employees to join him at the bar to protest before a television camera that they did not savor being poi soned and wanted to find out what was making them ill If there was any question that Meyers Industries 268 NLRB 493 (1984) (Meyers 1) remanded sub nom Prill v NLRB 755 F 2d 941 (D C Cir 1985) cert denied 474 U S 948 971 (1985) did not include in its definition of 18 Balk also stated that he also considered his earlier conversation with Davich in which he had made that threat and the two group meetings at which Davich was disruptive and that his conduct at those meetings was also his way of carrying out his personal vendetta against the Com pany 14 Respondent apparently thought little of Davich s earlier behavior no written warnings were issued and Davich s personnel file contained no record of any earlier discipline 16 I am very aware that Respondents termination letter recites that Davich s discharge was for continued inappropriate behavior and derog atory allegations which have been disruptive to the workplace and poten dally damagaing to the Company s image I attach no significance to it for two principal reasons First it was signed by John Fleischman of Re spondent s employee relations department and he did not testify so I do not know what he intended to mean Second I find the letter ambiguous and although arguably supportive of Respondents position that more than just the events of September 18 were involved equally supportive that Davich s conduct in opposing Respondents position regarding the mysterious illness caused him to lose his job concerted activities an individuals efforts to induce group action the Board clarified its standard on remand in Meyers Industries, 281 NLRB 882 (1986) (Meyers II) enfd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987), in which it stated at 887 [W]e intend that Meyers I be read as fully embrac ing the view of concertedness exemplified by the Mushroom Transportation [330 F 2d 683 (3d Cir 1964)] line of cases We reiterate, our definition of concerted activity in Meyers I encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management In Meyers I we noted with approval Root Carlin Inc, 92 NLRB 1313, 1314 (1951) a decision ante dating Meyers I by 33 years in which the Board recognized that Manifestly, the guarantees of Section 7 of the Act extend to concerted activity which in its incep tion involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self organization More recently, in Vaught Corp, 273 NLRB 1290, 1294 (1984), enfd 788 F 2d 1378 (8th Cir 1986) the Board noted with approval the Third Circuits com ments in Mushroom Transportation, supra, that It is not questioned that a conversation may constitute a concerted activity although it in volves only a speaker and a listener, but to qual ify as such it must appear at the very least it was engaged in with the object of initiating or induc ing or preparing for group action or that it had some relation to group action in the interest of the employees Davich s notice clearly requested his fellow employees to join him at the bar to meet with a television reporter Indeed the scheduling of an appointment with Channel 9 implicitly approved by Van Zant after the September 17 meeting and Davich asked Van Zant the next morring what she thought of his posting a notice to encourage the employees to join him in appearing before Channel 9 Thus both employees concertedly agreed on a course of action to make their own thoughts known to the public and to elicit support from their fellow employees I also find that the notice was protected There can be no question that the safety of the workplace was a para mount concern of the employees from July 24 and became exacerbated by the events of August 24 and 26 Clearly, it was a concern of Respondent which must be credited for its efforts to determine the cause of the mys terious illness Although Respondent may have been mo tivated by a desire to protect itself from the legal conse quences of potential liability to its employees, I have no doubt that it also had concern for the well being of its employees and that it proceeded in good faith to attempt MARTIN MARIETTA CORP 725 to find the cause of the incidents and to take all measures to prevent their reoccurrence Respondent recognized, too, that the employees were concerned, and the record is replete with admissions of Respondents knowledge that the employees were scared and needed to be reassured about their safety That was the reason Respondent kept its employees advised pen odically by distribution of leaflets informing the employ ees of what it was doing to ensure their safety The em ployees were tested and retested, their workplace was tested and retested Finally, Respondent held its Septem ber 17 meetings with most of its experts in attendance to inform the employees of what had been done and, perhaps of greater importance to assuage their fears What obviously troubled Respondent about Davich was, first, that he was not convinced by Respondents panel of experts and second, that he intended to gather the sup port of his coworkers to protest what he thought was a whitewash The law is now well established that the expression of concerns about safety and well being of the employees on the job is conduct encompassed within the meaning of mutual aid or protection as provided by Section 7 of the Act NLRB v Washington Aluminum Co, 370 U S 9 (1962), Daniel Construction Co, 277 NLRB 795 (1985) In addition, Davich s mere attempt to involve the media to discuss the cause of the illness does not cause his notice to lose the protection it would otherwise clearly have Eastex Inc v NLRB, 437 U S 556 565-567 (1987), Emarco Inc, 284 NLRB 832 (1987) Respondent contends, however, that Davich's notice was so outrageous and defamatory that he should lose his protection under Section 7, citing Dreis & Krump Mfg, 221 NLRB 309, 315 (1975), enfd 544 F 2d 320 (7th Cir 1976), that offensive, vulgar, defamatory or oppro brious remarks uttered during the course of protected ac tivities will not remove activities from the Act s protec tion unless they are so flagrant, violent, or extreme as to render the individual unfit for further service " In Trover Clinic 280 NLRB 6 at fn 6 (1986), the Board listed more specifically some of the limited exceptions where statements would lose their protection literature containing attacks on an employer's prod ucts or services, NLRB v Electrical Workers IBEW Local 1229 346 U S 464 (1953), material so disrup tive as to threaten plant discipine, Southwestern Bell Telephone Co 200 NLRB 667 (1972), and malicious falsehoods National Steel Corp, 236 NLRB 1033 (1978) substance (an insecticide), which he believed caused the employees to become ill That comports with the stand and dictionary meaning of 'poison to wit n 1 Any substance that causes injury illness or death especially by chemical means 2 Anything that is destructive or fatal -tr v poisoned 1 To give poison to kill or harm with poison 16 Furthermore, Davich s view that there was some chemical cause for the illness had been confirmed or, at least, had not been wholly dismissed by Respondent's ex perts at the September 17 meeting Indeed, Demery indi cated that the investigation into the use of a pesticide had not been completed, that the spraying contractor would be contacted, and that further wipe samples would be taken He added We may never discover whether pesticide was involved in the incident' In light of this statement and the fact that the cause of the myste rious illness was clearly a matter of open dispute, I find that Respondent has not satisfied its burden of showing that Davich s poster was knowingly false Radisson Muehlebach Hotel, 273 NLRB 1464 (1985) Second, I have grave doubts that Davich was driven by malice to post the notice, because malice implies an intent without just cause or reason, and there was reason for Davich to fear, as other employees feared, 17 that he and his coworkers were being affected by some chemical substance, probably an insecticide It may be that Da vich's dislike of Respondent gave him the impetus and desire to attempt to embarrass Respondent, and it is un doubtedly true that the illness gave Davich the means to attempt 'to get Respondent However Davich neither caused the mysterious illness nor imagined it Whatever it was, it had some very real ramifications namely, dis abling a substantial number of employees Section 7 pro tects the efforts of Respondent's employees, including Davich and Van Zant, to act concertedly to ensure that there is no reoccurrence Even if Davich had some ulte rior motive his rights under Section 7 to protect his and the other employees safety outweigh the possible risk that his communication was the result of malice This is particularly appropriate in this instance because Davich s poster so clearly related to health and safety Even if he were wrong, employees do not have to be correct in order that their conduct be protected Bob Henry Dodge 203 NLRB 78 (1973) Furthermore the posting of an otherwise protected notice does not lose its protection merely because Respondent finds it distasteful Southwest ern Bell Telephone Co 276 NLRB 1053 (1985) 18 Respondent's remaining defense essentially relies on the latter two categories I conclude however, that the notice was not, of itself so disruptive as to threaten plant discipline Whatever minimal disruption there was, as I have found above was caused more by the employees chapter about what Respondent might do to him, rather than what Davich actually did Furthermore I find that the notice did not constitute a malicious falsehood First, I do not find that it was false True, the word poison, ' or at least a derivative of it, was used, but in common usage, Davich was merely complaining of the use of a 16 American Heritage Dictionary of the English Language (1976) 14 Rose Waters an employee who appeared as a witness for Respond ent testified that it was the general opinion of the employees at the September 17 meeting that the spraying of inseticide had something to do with the illness to I have fully considered the remainder of Respondents argument set forth in its brief and find them wholly lacking in merit In particular I find nothing that required Davich to protest his disagreement about the cause of the mysterious illness solely through the safety committee au thorized by the collective bargaining agreement Besides not being re quired Davich would be leaving his fate in the hands of the Union Continued 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In sum, I conclude that Davich was engaged in con certed and protected activity when he posted his notice, that the contents of the notice did not render him unfit for future service, and that Respondents discipline of him violated Section 8(a)(1) of the Act The activities of Respondent set forth above, occur ring in connection with Respondent's operations de scribed above, have a close, intimate, and substantial re lationship to trade, traffic, and commerce among the sev eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com merce THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or dered to cease and desist therefrom and take certain of firmative action designed to effectuate the policies of the Act 19 Specifically I shall recommend that Respondent offer Davich immediate and full reinstatement to his former position or if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously en joyed, and make him whole for any loss that he may have suffered as a result of Respondent's discrimination against him Backpay shall be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), and interest shall be added thereto, to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed20 ORDER The Respondent Martin Marietta Corporation, Orlan do, Florida its officers, agents successors and assigns shall 1 Cease and desist from (a) Suspending discharging, or otherwise disciplining its employees because they engage in concerted activities that are protected by Section 7 of the Act (b) In any like or related manner interfering with, re straining or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act which he opposes and wanted to decertify Another claim is that Re spondent had no knowledge of Davich s concerted activity a contention belied by the fact that it took possession of Davich s notice and fired him for posting it is Counsel for the General Counsel requested in her brief that I order Respondent to cease and desist from removing or directing the removal of literature protected by Sec 7 of the Act from areas where employees customarily post notices or prohibiting employees from posting literature protected by Sec 7 in areas where they customarily post notices How ever the complaint does not allege any violations other than the suspen sion and discharge of Davich and the requested relief is therefore not warranted In addition the complaint seeks a visitatonal clause which the Board has now held is not justified in routine unfair labor practice proceedings Cherokee Marine Terminal 287 NLRB 1080 (1988) 20 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 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Milan Davich immediate and full reinstate ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prej udice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may suffered as a result of its discrimination against him in the manner set forth in the remedy section of this decision (b) Expunge and remove from its files any references to the unlawful suspension of Davich on September 18 and his unlawful discharge on September 21, 1987 and notify Davich in writing that this has been done and that evidence of his illegal suspension and discharge will not be used as a basis for future personnel action against him (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay roll records, social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its place of business in Orlando, Florida, copies of the attached notice marked Appendix 21 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Re spondent 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 customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 21 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend, discharge, or otherwise disci pline our employees because they engage in concerted activities that are protected by Section 7 of the Act WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Milan Davich immediate and full rein statement to his former position or if that position no longer exists, to a substantially equivalent position with out prejudice to his seniority or other rights and pnvi leges, and make him whole for any loss of earnings he may have suffered as a result of our discrimination against him, with interest MARTIN MARIETTA CORP 727 WE WILL remove from our files any reference to the dence of his illegal suspension and discharge will not be unlawful suspension of Davich on September 18 and his used as a basis for future personnel action against him unlawful discharge on September 21, 1987, and notify Davich in writing that this has been done and that evi MARTIN MARIETTA CORPORATION