Electromedics, Inc.

928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Electromedics, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local Union No. 537. Case 27-CA-10827 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On May 2, 1990, Administrative Law Judge Burton Litvack issued the attached decision The Respondent and the General Counsel filed excep- tions and supporting briefs, and the Respondent filed a brief in response to the exceptions of the General Counsel 1 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, findmgs, 2 and conclusions3 and to adopt the recommended Order as modified 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Electromedics, Inc, Englewood, Colora- do, its officers, agents, successors, and assigns, shall take the action set forth m the Order as modified 'The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the Issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Thy 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 The General Counsel excepts to the judge's failure to find that the Re- spondent violated Sec 8(a)(1) by terminating Joseph Hart and Gary Hall because of protected concerted activity A finding of such an additional violation would be essentially cumulative to the judge's finding (which we are adopting) that the Respondent violated Sec 8(a)(3) We therefore fmd It unnecessary to pass on this allegation We correct the judge's Inadvertent reference to "1984" in the first sen- tence of par 4, sec IV, A, and substitute "1989" 3 In its exceptions the Respondent contends that the judge, in an off- the-record discussion, showed a predisposition to find a violation The Respondent did not, however, raise this claim of impropnety until after the judge Issued his decision In so doing, the Respondent did not comply with the requirements of Sec 102 37 of the Board's Rules and Regula- tions Accordingly, we find that the claim was not timely raised Central Mack Sales, 273 NLRB 1268 fn 2 (1984) Furthermore, after a careful review of the record, we find no meat in the Respondent's contention that the judge demonstrated bias and denied the Respondent a fair hearing 4 We shall modify the recommended Order to conform to the Board's traditional reinstatement, make-whole, and posting language We shall also conform the notice with the recommended Order 1 Substitute the following for paragraph 2(a) "(a) Offer Gary Hall and Joseph Hart immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision" 2 Substitute the following for paragraph 2(d) "(d) Post at its facility in Englewood, Colorado, copies of the attached notice marked 'Appendix '47 Copies of the notice, on forms provided by the Re- gional Director for Region 27, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and mamtamed for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material" 3 Substitute the attached notice for that of the administrative law judge 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 discharge employees because they have engaged in union or other protected concert- ed activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Gary Hall and Joseph Hart im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other nghts or privileges previously enjoyed and WE WILL make them whole for any loss of earnmgs and other benefits resulting from their discharge, less any net interim earnings, plus interest WE WILL notify Gary Hall and Joseph Hart that we have removed from our files any reference to 299 NLRB No 144 ELECTROMEDICS, INC 929 their discharges and that the discharges will not be used against them in any way ELECTROMEDICS, INC Barbara E Greene, Esq , for the General Counsel James J Gonzales, Esq and Judith A Biggs, Esq (Holland & Hart), of Denver, Colorado, for the Respondent Frank L Frauenfeld, of Denver, Colorado, for the Charging Party DECISION STATEMENT OF THE CASE BURTON LITVACK, Admuustrative Law Judge The underlying unfair labor practice charge m this matter was filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Local Union No 537 (the Union), on March 21, 1989 Based on the charge, on May 31, 1989, 1 the Regional Director of Region 27 of the National Labor Relations Board (the Board) issued a complaint alleging that Electromedics, Inc (the Respondent) engaged in acts and conduct violative of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) Respondent timely filed an answer, essentially denying the commis- sion of any unfair labor practices Pursuant to a notice of hearing, which accompanied the complaint, a trial before me was held on October 24, 25, and 26 in Denver, Colo- rado At the trial, all parties were afforded the opportu- nity to examine and cross-examine all witnesses, to offer into the record any relevant evidence, to argue their legal positions orally, and to file posthearmg briefs Counsel for the General Counsel and counsel for Re- spondent filed the latter documents, and both briefs have been closely examined Accordingly, based on the entire record, including the oral arguments, postheanng briefs, and my observation of the testimonial demeanor of the several witnesses, I make the following FINDINGS OF FACT I JURISDICTION At all times material, Respondent has been a corpora- tion, with an office and place of business in Englewood, Colorado, at which location it has been engaged in the manufacture and sale of high technology medical equip- ment During the course and conduct of its business op- erations, Respondent annually sells and ships goods and products valued in excess of S50,000 directly to custom- ers outside the State of Colorado Respondent admits that it is an employer engaged in commerce within the meamng of Section 2(2), (6), and (7) of the Act Ii LABOR ORGANIZATION At the hearing, counsel for Respondent stated that he would not contest the status of the Union as a labor or- ganization within the meaning of Section 2(5) of the Act Unless otherwise stated, all events occurred in 1989 III ISSUES The complaint alleges that Respondent terminated its employees, Gary Hall and Joseph Hart, on March 17 be- cause of their activities on behalf of the Union and be- cause they engaged in concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection m violation of Section 8(a)(3) and (1) of the Act While conceding the terminations of Hart and Hall, Re- spondent argues that its acts were for cause and not mo- tivated by the employees' union or other protected con- certed activities Additionally, the complaint alleges that Respondent violated Section 8(a)(1) of the Act by in- forming an employee that he was being terminated be- cause he was a probationary employee, engaging in union activities Respondent denied this allegation IV THE ALLEGED UNFAIR LABOR PRACTICES A The Facts The record establishes that Respondent 2 maintains and operates a six-buildmg plant complex in Englewood, Col- orado, located southeast of Denver, at which it manufac- tures high technology eqtupment for hospital operating rooms including surgery kits, temperature and pressure monitoring probes, and blood autotransfusion systems, necessary for open-heart surgery Blood management surgery kits, which are a component of the autotransfu- sion system, and other custom designed surgery kits, which are ordered by surgeons for specialized oper- ations, are assembled 3 in the facility involved here, clean room A 4 The record further establishes that this work- room is classified as a "class 10,000" clean room—a con- trolled environment in which great care is exercised to ensure that no debris or other type of contamination comes into contact with the product To this end, the clean room A employees must wear gowns over their clothing, shoe covers, and hair nets (with no hair left un- covered) Also, men with beards or mustaches must cover their faces, and women cannot work with polish on their fingernails or makeup on their faces Further, employees must wash their hands with foamed alcohol before starting to work, after touching any exposed body part, or after picking up something off the floor Addi- tionally, all work tables are thoroughly "wiped down" with alcohol prior to the start of a shift, all materials, which fall to the floor, are given an alcohol wash, and there is no smoking or eating in the room 5 Finally, in 2 Howard Prosky is Respondent's vice president, Roger Lesher is its production manager, and Susie Perlman is the personnel director 3 Production of Respondent's surgery kits involves assembling tubing, plastic fittings, and blood purification bowls and packaging these on a tray A "tnvek is placed over the tray, and the assembled product is sent to the sterilizing area 4 Production in clean room A is divided between two separate assem- bly lines The "perfusion" line assembles the custom designed surgical kits, and the surgery kits for the autotransfusion machines are assembled by the "blood management" line employees Other employees, called "cutters," cut the tubing for each line 5 Notwithstanding what may have been Respondent's best efforts, the environment in clean room A was a clean but not sterile one Thus, em- ployee meetings were held there, paychecks and insurance forms were distributed, employees were not required to wash their hands every time they touched paper, and employees were allowed to bnng paper Into the room 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD order to maintain the high production standards neces- sary for the purposes for which its products are de- signed, Respondent permits only minimal employee talk- ing during workome and only with one's immediate neighbors, and employees are generally required to remain at their workstations at all times Dannette Brewer was the night-shift supervisor in clean room A from May 1987 through May 1989 6 Joseph Hart began working for Respondent on or about September 14, 1988, as an assembler in clean room A, supervised by Brewer The record establishes that, from the outset, his attendance caused problems Accord- ing to Hart, it merely Involved being occasionally late for work, and he explained to Brewer that such was due to a lack of "reliable transportation" to work While he asserted that Brewer "seemed to tolerate" his lateness, the latter testified that the problem actually mvolved Hart's presence at work rather than just lateness, that such was "poor" from the start, and that, as a conse- quence, she gave him an oral warning ? in November re- garding attendance and lateness Nevertheless, in Brew- er's evaluation of Hart at the conclusion of his 90-day probationary penod in January 1989, she found him to be working at the expected performance level in each evaluation category and, with regard to attendance, merely noted that it "could be better" At the time of Hart's evaluation, the position of lme lead 8 over the per- fusion line during the night shift was vacant While Hart maintained that Brewer approached him, asking if he would be interested m the job and Brewer asserted that Hart told her, on several occasions, he was interested in the position, it is clear that, on or about January 24, Brewer offered the line lead position to Hare and that, shortly thereafter, he accepted the offer According to Brewer, in accepting, Hart "told me he wouldn't let me down, that he would do the best that he could for me" There is no dispute that Hart's attendance failed to im- prove after his promotion to the perfusion line lead posi- tion Thus, he conceded that his transportation difficul- ties never Improved and that, even after his promotion, Brewer "occasionally" counseled him about being late for work His supervisor testified that the problem con- tinued to be attendance and lateness and that these reached a point necessitatmg another oral wording to Hart on February 20 Brewer further testified that Hart's absences were becoming a serious concern inasmuch as line leads were responsible for production and paper- work, and his absences caused "backup[s]" and inad- equate production runs Also, at the end of February, ac- cording to Brewer, she counseled Hart regarding horse- play in the clean room, with such resulting from a report from employee Ramona Moore that Hart had slashed the Another clean room (clean room B, C, and D) was supervised during the nightshift by Harold Allen 7 In Respondent's disciplinary procedure, oral warnings are accompa- nied by written explanations to Personnel Director Perlman, and written warnings are given to the employee for his signature 8 The line lead position involves ensuring the completion of product runs, training new employees, setting up for production, doing required paperwork, and acting for a supervisor when the latter is absent While concerned about his attendance, Brewer was impressed by Hart's "workmanship" and his "leadership" abilities, and she believed he was a person whom people could trust back of her work gown with a razor blade Brewer added that Hart admitted the misconduct, saying he did it "out of fun," and that she warned him such was not "good behavior on his part" During cross-examination, Hart conceded that the incident occurred and that Brewer told him it was "dangerous" and "stupid " 10 He added that, at approximately this time, Brewer "made some comments about if I hadn't improved she would consider someone else for the position She said she couldn't fake [Roger Lesher] out much longer about my attendance" Gary Hall and his wife Tina were hired by Respond- ent in February 1984, and both worked as assemblers in clean room A on the evening shift, supervised by Dan- nette Brewer Initially, they were assigned to work on the perfusion line, with Joseph Hart as their line lead, however, Gary Hall was soon assigned by Brewer to work on the blood management line, with Dale Buntrock as his line lead Hall, who admitted bemg told by Brewer at the time of his hire, to make sure to keep the noise down and not to wander away from his worktable, denied that she transferred him because of excessive talk- ing to his wife Tina Hall testified that, at the time of hire, her husband reported, "Dannette said she felt that he could do better [on blood management] and there was something about company policy preferred it better that way" Contradicting both Halls, Brewer testi- fied that the transfer was necessitated by "a lot of infor- mal chitchat between the two" With regard to his at- tendance," Gary Hall testified that he was absent on just 3 days (2 consecutive days while his daughter was hospitalized and 1 day "a few weeks later" when his car broke down and Brewer told him not to bother reporting as everyone would be sent home due to a snow emergen- cy), that each was "supposed to be excused", ' 2 and that he was never disciplined for excessive absentee- ism 73 On this latter point, Respondent offered as Exhib- it 15, a note from Brewer to Perlman, purporting to de- scribe a conversation on or about March 3, a day on which Hall was absent, between Brewer and Hall during which she admonished him "about his attendance need- ing improvement" Brewer herself failed to testify re- garding the substance of any such conversation Dannette Brewer did not work on Friday, March 10, havmg scheduled a day off for that date According to her, on the day before, she met with her line leads, Hart 10 Rather than giving him a verbal warning, Brewer termed her talk with Hart after the incident as "verbal" counseling, with nothing in writ- ing " Respondent's employee handbook, which all employees, including Hart and Hall, receive when lured, requires "regular and on-time" at- tendance and permits discipline for "excessive unjustified tardiness or ab- senteeism," which is defined as "more than one unexcused absence per month" and "more than two tardy occurrences per month" 72 When his child became hospitalized, Brewer told him to "just get back when you can" Apparently, Tina Hall also was permitted to be absent for these 2 days 78 Notwithstanding the assertion in Respondent's counsel's posthearmg brief at fn 5 that R Exh 30, Hart's absenteeism record, contradicts his testimony, the exhibit, in reality, corroborates him that he was absent 2 consecutive days—on February 28 and March I The exhibit also estab- lishes that he was, in fact, absent from work on four occasions, the other 2 days being February 23 and March 3 ELECTROMEDICS, INC 931 and Buntrock, and cautioned them to make sure there was "no horseplay," a good production run, and no com- plaints Notwithstanding her admonition, Hart and Gary Hall engaged in apparent misconduct that evening As to the former, he conceded squirting alcohol" at other workers but contended such was in retaliation—people "were squirting back It was a squirt-bottle war going on that night Everybody was squirting that tught " 19 Hart further conceded not doing anything to stop the squirt- ing but denied shooting rubberbands at workers or threatening to discipline workers if they reported his conduct to Brewer Several witnesses disputed Hart's de- scnption of what occurred that night At the outset, in this regard, there appears to be no dispute that alcohol squirting is a frequent occurrence in clean room A 16 and that, according to Ellen Vella, the quality control em- ployee assigned to that clean room during the night shift, such does occur during work hours Ramona Moore, a tube cutter for the perfusion line, Donald Craigo, an as- sembler on the blood management line, Buntrock, and Vella each testified that Hart was wandering around the clean room that Friday night and squirting employees in "their backs, their butts" while they worked Vella testi- fied that Hart was the only employee engaging in this conduct 17 Further, Moore testified that Hart "popped" her with a rubberband as she was assisting Vella, and the latter testified that she observed Hart shooting rubber- bands at assemblers that night Finally, as to Hart, while Vella insisted that Ramona Moore approached her and said that Hart had threatened to write her up for alcohol squirting and rubberband shooting" if she reported his conduct to a supervisor, Moore herself denied such a threat by Hart or reportmg such a threat to Vella Concerning Gary Hall, there is no dispute that he en- gaged in a confrontation with Dale Buntrock on Friday night, necessitating the intervention of Harold Allen, the supervisor of clean rooms B, C, and D As to what oc- curred, Hall testified that he had completed taking a number of surgical trays to a rack, at which they are checked by quality control and then sealed, when Bun- trock approached and said "if he caught me wandering around one more time he was going to put me in a corner like a little kid" An argument ensued, and the • 14 Approximately a dozen plastic squirt bottles, filled with alcohol, are stored on a rack, located in the center of the clean room The alcohol is used to clean any product or instrument which falls to the floor la Others identified, by Hart, as participating in the "war" that evening were Dale Buntrocic, the other line lead, Ramona Moore, Tim and Julie Anderson 16 One witness, Ramona Moore, described such squirting as occurring more than 20 times 17 Tina Hall corroborated Hart's account of the asserted misconduct that night "He was working but he was messing around squirting people with squirt bottles" She added that "everybody was kind of doing it It wasn't just Joseph" That there was much horseplay that Friday night was confirmed by Donald Craig° who testified that, in con- trast with other work nights, "here was a lot of noise, a lot of fooling around" Asked who was creating the noise, Criugo said "There was a bunch of people involved," more than just Hart Further, Craig° ob- served Hart squirting workers on both assembly lines, but "I can't direct- ly say that I saw him do anything else" la Although Moore failed to mention her involvement in the miscon- duct, Brewer testified that both Moore and Julie Anderson later con- fessed to her that they had "retaliated" by shooting rubberbands back at Hart line lead left and, shortly thereafter, returned with Harold Allen Allen asked Hall to leave the room with him They did so, Allen asked him what the fight was about and told him to return to work and not to worry about it Hall denied that Buntrock told him to keep his voice down and stated that, after he continued speaking in a loud voice, the line lead threatened to place him at a different table Further, while denying saying "fuck you" to Buntrock, Hall admitted saying to the former, "the hell you will" Buntrock testified that the confirmation was precipitated by Hall speaking in a loud voice, "so I went over to his table and asked him if he could quiet it down and Just get back to work" Hall responded by telling Buntrock to stop picking on him and by calling him "various names" Buntrock replied, warning Hall that if he did not quiet down, he would have to move the employee to another table 19 At this point, Hall became "upset" and "got rather loud," and Buntrock asked Harold Allen to help him The latter came to the clean room, spoke to Hall outside, Hall returned to work, and "everything was fine " 20 Harold Allen testi- fied that he spoke to Hall and told him "to stop creating any more disturbances" Finally, relating uncorroborated testimony, Ellen Vella stated that during the above argu- ment she heard Hall say "fuck you" and call Buntrock "an asshole" On Monday, March 13, upon returning to work, Dan- nette Brewer was told by Vella that on Friday night Buntrock and Hall had engaged in a "disruptive argu- ment" almost to the point of a fistfight and by Ramona Moore and Julie Anderson that on the same night Joseph Hart had been squirting people with an alcohol bottle and shooting rubberbands at workers After further con- versations with Buntrock and Allen, Brewer spoke to Hart when he amved in the clean room at approximately 3 p m Hart recalled that she confronted him with what Vella, Moore, and Buntrock said about his conduct on Friday night and that he became upset inasmuch as Brewer took the word of the employees and "she did not ask me first" and as "these people who supposedly had told were guilty of doing the same things themselves" He further recalled that he and Brewer began arguing in the clean room and that he abruptly walked out As to whether he left and attempted to speak to Roger Lesher, Hart could not recall 21 According to Brewer, she told 19 Don Criugo testified that although it was "very noisy" in the room at the time and there was a great deal of "commotion" he overheard Dale Buntrock confront Hall, who was acting with "a little less control" than usual, and say to "either settle down and take care of your business or he was going to separate him" Buntrock does not recall Hall's reply other than asking to speak to a supervisor 29 Likewise, Hall believed the matter was then "settled" On the fol- lowing Monday, Buntrock apparently felt so little about the incident that he mentioned it only in passing to Brewer and did not recommend any discipline 21 According to Roger Lesher, the production manager, he learned of the events of Friday, March 10, when Hart spoke to him the following Monday, saying "that he felt that his supervisor was picking on him and that some of the employees were going to tell [Brewer] that he had been doing something Improper on Friday night" Subsequently, Lesher spoke to Brewer who told him what she had learned about the conduct of Hart and Hall on Friday night Hart did not recall speaking to Lesher that night 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hart what had been reported to her, and he responded that "nothing" had happened She asked about the "fight" between Hall and Buntrock, and Hart termed it an "argument" She asked him again about squirting al- cohol and shooting rubberbands, and Hart denied it, saying the girls did not like him and wanted to see him get into trouble Brewer then told him that such behav- ior would probably cost him the line lead position Hart said he would see about that, said he would speak to Lesher, and left the room, slamming the door Brewer further testified that he returned 15 minutes later, "stomped" over to the alcohol wash area, and said in a loud voice "that he had won, he would have my job" Thereupon, Hart walked over to where Brewer was standing and asked what she wanted him to do She re- plied that he should calm down and begin working Hart then walked over to Hall's table, said everything was being done because he is a "black man," and left the room Brewer followed him into the gowning area and told Hart that she was going to send him home for the remainder of the night in order for him to calm down Asserting that Hart was quite angry at this point, she told him that his behavior reflected upon her judgment and that she could not accept an individual, whom she "entrusted" with a line lead position, acting in such a manner Brewer then reiterated that it would be best for him to leave and go home and said they would discuss his job status the next day Brewer added that she felt "intimidated" by Hart's "voice" and his "expression" Hart recalled this conversation in the gowning area, stat- ing that they spoke about what happened on Fnday night, that he felt it was discrimination against him, and that she told him to go home to "cool off" With regard to Gary Hall, Brewer testified that she spoke to him in the gowning area after he reported for work "I asked him to tell me what had happened Friday He told me that Dale was treating him like shit telling him he was talking too much or that he was spending too much time in the chair, and he got tired of hearing it The last time he had said that Mr Hall told him, 'fuck you " Brewer further testi- fied that, during the conversation, "he was pretty angry Shouting, telling me that he wasn't going to take that shit from Dale, me or anybody else" At that pomt, "Gary slammed his fist against the wall, and said he was going back to work " Brewer added that Hall's work that mqht was "poorly" done, that he continued to talk, and that his work was "very slow" Although she did not so state, Brewer evidently considered this as an oral reprimand and prepared a memorandum, Respond- ent's Exhibit 14, for Perlman after the conversation Hall denied the above incident, saying that Brewer never ac- cused him of insubordination and only said, while pass- ing by his work table on Monday, "she had a bone to pick with me" According to him, there was no further discussion . Joseph Hart was absent on Tuesday but did report for work on Wednesday, March 19, and apparently22 at- 22 Hart recalled a meeting with Lesher and Brewer but was unsure of the date or what was said tended a meeting with Brewer and Lesher Brewer's only recollection" of what was said was that they "dis- cussed [Hart's] behavior, the consequences that it could bring" Roger Lesher testified that the three met in his office, that he told Hart he had investigated the events of the past Friday, "and that [employees] had all verified what [Brewer] had been told I stated to Joseph Hart that I would not want to keep him in a line lead position with the activities that went on "and that it was necessary for him to behave himself" Lesher then told Brewer that it was her decision about retaining Hart as line lead Asked if Hart made any comments, Lesher said, "He did admit that those things had went on, in- cluding shooting rubberbands and squirting people" Lesher added that Hart evidenced no hard feelings and "realized that he had done wrong" While failing to testi- fy as to what was said, Hart did not recall Lesher saying he should no longer be line lead Whatever union activities in which Hart and Hall en- gaged occurred on Thursday, March 16, and resulted from a hat, which Hall habitually wore to work and which bears a Teamsters Union logo Hall testified that shortly after his hire two employees, Keith Ward, an as- sembler in clean room A on the night shift, and Rick approached him and asked if he had ever been a Teamsters Union member, he said, no and explained that the hat had been a gift Then, "they asked if I knew how to get in touch with the Teamsters, and I told them my neighbor was an organizer for Coors and I could talk to him And they then asked me to do that" Subsequently, Hall was asked by Ward and others if he had spoken to anyone from the Teamsters Union yet, and he told them he had not had the time Tina Hall testified that "around the beginning of March," during lunch and break peri- ods, employees, including her husband, Hart, Ward, and herself, began discussing their dissatisfaction with work- ing conditions, their desire for umon representation, and, as her husband wore a Teamsters Union hat, his knowl- edge of that labor organization Fulfilling his commit- ment, Gary Hall finally contacted the Teamsters Union and was given the name of Frank Frauenfeld, an orga- nizer for the Union Thereupon, Hall contacted Frauen- feld, and a meeting was arranged for March 16 Joseph Hart testified that on or about March 9 or 10 Ward and Hall told him that, having been approached by other em- ployees on the subject, they were going to look into union representation Stating that he previously had been "undecided" about joining them, due to "a whole bunch of mishaps with [Respondent]" and with the expectation of better wages and treatment for the employees, Hart decided to help Having been previously advised by Hall as to the meeting with Frauenfeld on March 16, Hart spoke to Hall that day and said he would attend it As scheduled, Gary Hall, Tina Hall, and Hart met with Frauenfeld that Thursday at the latter's office Their conversation concerned union organizing and employee rights during such a campaign, petitioning for a union, and employee tactics in these circumstances, Frauenfeld 23 Brewer recalled an earlier meeting with Lesher during which she told him that she felt like removing Hart from the line lead position, and Lesher said "that I was the supervisor—this was my call" ELECTROMEDICS, INC 933 gave them several copies of Respondent's Exhibit 13, a document detailing assertedly unlawful conduct by fore- men and supervisors Leaving Frauenfeld, Tina and Gary Hall and Hart drove to Respondent's facility in the Halls' car Apparently, their strategy for commencing their union organizing campaign was to inform Respondent of their intent to petition for a union There is no dispute as to the ensuing events on March 16 Thus, upon arriving at clean room A, Hart and Gary Hall met Keith Ward, and the three employees spoke to Dannette Brewer, asking permission to speak to Roger Lesher She told them that they were still "off the clock" and could meet with him 24 Hall, Hart, and Ward went looking for Lesher and found him about to leave the building They told the production manager it was an emergency and urgent that they meet with him Lesher replied that he had a dentist appointment and had no time The employees reiterated the urgency of their request, but Lesher said it would have to wait and left the building At this point, Hart said they should tell someone else and suggested Re- spondent's president or vice president, Howard Prosky Thereupon, they crossed the street to another building and encountered Prosky in a hall Hart testified that the three asked to speak to him and that Hall began, saying "he had been to see a union representative and that we were here to petition the company for a umon " Sensing Hall was nervous, Hart interrupted, handed a copy of Respondent's Exhibit 13 to the vice president, and said it was a list of what employees and supervisors could and could not do Prosky responded, "I don't know what to say about this" and suggested they give the document to Lesher Hart replied that they had attempted to do so but Lesher refused Hall corroborated Hart, testifying that he said "we were trying to organize the company because we had problems and we'd like to see some things resolved, and we haven't had any satisfaction with talking to the management, so we were going to pe- tition for a umon " In his testimony, Howard Prosky agreed that the employees told him that they had gone to a union, stating that "the gist of the conversation was that they had tried to speak to Roger but Roger had left They said it was important Their main complaint was as the assigmng of jobs by Dannette They told me that they • had gone that after- noon to talk to a union and they thought it would be good for Electromedics " Prosky denied mentioning this conversation to anyone that day or evening Hart, Hall, and Ward returned to clean room A at 3 30 p m for the start of their worksluft According to Hart, prior to asking permission to see Lesher, he had in- formed Brewer of his decision to resign from his line lead position but refused to tell her why After clocking in on returning from the conversation with Prosky, Hart testified Brewer asked to speak to him in an area termed the "grey room" She asked why the employees had spoken to Usher and said, "I know you guys are out to 24 According to Hart, after Brewer gave the three employees permis- sion to speak to Lesher, she asked why Hart replied it is "nothing impor- tant," and Brewer responded that they "are on a head hunt" Hart denied It get me" Hart denied it, and Brewer said that she had spoken to Lesher earlier and had decided to remove him from the line lead position anyway She added that it was her decision as to what Hart would do in the future, "and she said what she had come up with was that I could work half the night as an assembler" She gave Hart until the following Monday to decide Brewer testi- fied that she had decided to remove Hart from the line lead position after their Wednesday meeting with Lesher25 and, at the start of the shift, told him of her decision Hart replied that "it really didn't matter to him he had no intention of staying in the line lead posi- tion anyway" According to Brewer, 15 minutes later, she approached Hart by his workstation, and "he said they had been out to try and talk to Roger, and had seen Howard, but Howard wouldn't listen to them, and that he was sure by the next day some changes were coming, and he probably wouldn't be employed by Elec- tromedics any more" Hart failed to elaborate The night-shift employees receive a break at approxi- mately 6 15 p m, another part of the employees' organiz- ing strategy appears to have been to hold an employee meeting during the Thursday evening break to explain what Hart and Hall had done that day Accordingly, during the work period until the break, Hart spoke to the employees who worked closest to him, including Ramona Moore and Julie Anderson, saying "that there would be a meeting at break time outside" He added that word of the meeting spread to other employees be- cause three or four approached him and asked about it While denying that he ever left his workstation to tell employees, Hart conceded to me that he may have vio- lated company rules by such talking There is no evi- dence that Brewer was aware of this activity In any event, at 6 15 am, Gary Hall, Tina Hall, Hart, and Ward met with approximately seven other clean room A employees outside in the parking area next to a picnic table No supervisors were present, with Brewer drink- ing coffee in the lunchroom The Halls and Hart told the other employees that they had met with a Teamsters Union official with regard to petitioning for a union and that they had informed Howard Prosky whose response was "I don't want to hear about it" Tma Hall mentioned that union representation might help get them better pay but continued that they should not discuss the Union on company time Some employees mentioned their fear of being fired for supporting a union, and Tina gave them copies of Respondent's Exhibit 13 Finally, the subject turned to a formal organizing meeting and, according to Tina Hall, Hart "said that we were going to have a meeting at lunchtime off the clock and outside the build- mg "26 The break period ended, and the employees re- turned to the clean room for work Don Craigo worked "at the last table in the back" of clean room A, and all employees must pass by his work station on the way to their own He testified that, at the conclusion of the break period that Thursday night, as 25 Brewer testified that earlier she prepared R Exh 8, a status change form, for Hart's signature 25 Neither Gary Hall nor Joseph Hart mentioned the scheduling of such a meeting 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Joseph Hart "was in the process of coming back from his break, he said to Craig° that he wanted me to attend a meeting at lunch out in our parking lot" Craigo asked why, and Hart replied, "I can't tell you but its im- portant, come to the meeting" Craig° again asked why, Hart said he could not tell him and continued to his workstation 27 For the next hour, according to Cnugo, he was bothered by not being able to get an answer from Hart as to the purpose of the lunch meeting and, appar- ently believing it implied Hart's problems with Brewer, felt uncomfortable about possibly taking one side against the other Thereupon, Craigo approached Dale Buntrock in the grey room and told him about what Hart had said, adding that Craigo was in a "predicament" as he did not want to get involved Buntrock testified that Craig° "ap- proached me and said that Hart had asked him to meet him in the parking lot at lunchtime for a meeting he was a little upset about it because he didn't want to have to take sides he wanted to remain fnends with everybody at work 28 Thereupon, Buntrock went to inform Brewer, telling her about the meeting in the parking lot, and "she seemed to be upset about what the meeting was going to contain, what the meet- ing was about" Then, according to Buntrock, "she pro- ceeded to go make a phone call" Dannette Brewer testi- fied that some time after the break penod 29 Buntrock approached her outside the clean room and said that "Don Craigo was pretty worried" She asked why, and Buntrock said that Joseph Hart was "bothering him" about a parking lot meeting during lunch and Craigo was "worried" about the consequences of not going He added that "Don didn't want to approach me directly for fear of causing some kind of a ruckus" After instructing Buntrock to tell Craigo not to worry, according to Brewer, she and Buntrock returned to clean room A, and Hart and Hall "were at other tables talking and would take two, three minutes and would go back to their work tables And at this point I wasn't sure was going on, and I decided I would go out and call Roger "30 27 Hart recalled speaking to Craig° but not about a lunchtime meeting According to Hart, he spoke to Craigo about the break meeting ("You should have been there ") Hart could not even recall if a meeting had been planned for the lunchbreak 28 Asked if he told Brewer that Craigo had been harassed by Hart, Buntrock said, no and added that he did not characterize the Hart-Criugo conversation to Brewer—"I just reported it" 23 Brewer testified that immediately after the break "It was real quiet for a change, real quiet in clean room A" 38 The only other witness who assertedly observed this type of con- duct on March 16 was Chester Quance, Respondent's secunty officer According to him, at approximately 6 45 p m on March 16, while making his normal rounds, he "stuck" his head into the grey room and observed Brewer "in a state of high agitation" and "nervous" Ellen Vella was with her and told Quance that Brewer was "concerned" for her safety, that two employees were in the clean room speaking to other employees and planning a meeting, and that the two persons "were out to get her" Quance testified that he then glanced in the clean room A window, and "there were two people bench-hopping or going around to different tables in the clean room talking with people" He added that he later was able to identify the persons as Gary Hall and Joseph Hart Neither Vella nor Brewer corroborated Quance as to the above conversation, and Vella was not even able to recall whether Hart was present at work on the night of March 16 Further, of course, Brewer testified that there was "quiet" in the clean room after the break Brewer testified that she telephoned Roger Lesher at home but that he did not answer She then telephoned Susie Perlman, the director of personnel, telling her "that I wasn't sure what was going on, that I was in fear for myself and my job" She told Perlman about the Craigo conversation and "just that people were told to be in the parking lot at lunch and I was scared "87 Perlman told her to calm down, suggested that she could get help from security or the sheriff, and said she should try Lesher again 32 Thereupon, she again telephoned Lesher, and he was at home "I told him the same thing I had spoken to Susie about that Joseph Hart wanted people in the parking lot, that they were going from table to table in there, that I had no idea what was going on, and I didn't know what to do It had gotten out of my control" Lesher told her that the two em- ployees were being "disruptive" and "intimidating" other workers and that it would be best that they be escorted out of the building and sent home Lesher testified, during direct examination, that Brewer telephoned him at approximately 6 30 p m, and "she was very con- cerned She sounded scared She said she thought that Hall and Hart were trying to organize something against her in the parking lot at lunch break She really sounded scared, so I requested that she get a hold of our security guard and, due to the problems we'd had with them before, Just to have them sent home "33 Brewer next testified that, upon concluding with Lesher, "I was afraid to go back to the clean room" Therefore, she telephoned Harold Allen, the clean rooms B, C, and D supervisor, told him what had occurred, and he offered to go to clean room A and tell both Hart and Hall that they were being sent home for the night and should see Lesher the next day Also, she called Chester Quance, the security guard, and "told [him], Just what Roger told me that they were Just going to be sent home for the night, and just to see that they got out of Ramona Moore testified that on that Thursday night Gary Hall handed her a copy of R Exh 13 as she was in the tube cutting area and that Joseph Hart said there was to be a meeting with "the union people" on a "particular day" It is unclear whether this conversation occurred before or after the break Hart mentioned no such conversation, and Hall denied speaking to anyone after the 6 15 break ended Dale Buntrock failed to corroborate Brewer's testimony about Hall and Hart speaking to other employees and moving from table to table 37 Asked why she was "scared," Brewer said It involved "not knowing what was going on" She also averred being personally afraid "because I had seen the anger of Mr Hall and Mr Hart on previous occa- sions" 32 Perlman contradicted Brewer about the timing and substance of the conversation, stating "her voice was shaky She had not called me at home before I asked her what the problem was She told me that she had a problem in the clean room She had already spoken to Roger Usher Two employees had been sent home from work that were involved in the situation She said that It seemed like they were trying to organize the clean room against her, and they were out to get her job " Brewer added that the two employees "were going around speaking with other employees, trying to get a meeting together" 33 Dunng cross-examination, Lesher changed his testimony, adding that Brewer told him that "Gary Hall and Joseph Hart had been going around the clean room talking to people One employee had come to her feeling harassed " Dunng redirect, Lesher added that Brewer said that Hall and Hart were creating a "disturbance" He later changed this to "She said that they were disturbing other employees" Brewer did not testify that she told Lesher any employee had come to her, "feeling harassed" or that they were "disturbing" anyone ELECTROMEDICS, INC 935 the building" Brewer added that she told Quance that Lesher wanted the employees' security badges, which all employees wear while inside Respondent's facility, re- moved until they (Hall and Hart) spoke to him the next day Allen's testimony contradicts Brewer, specifically as to the timing of her actions Thus, he stated that he re- ceived a telephone call from Brewer on March 16, asking him to come to clean room A as she was having "some problems" Allen arrived at the other clean room, and Brewer "told me that they were going to have a meeting in the parking lot Gary Hall and Joseph Hart were trying to get people together for some type of a meeting" He added that Brewer seemed scared and was shaking and believed that, as a result of the parking lot meeting, "everybody was going to gang up on her " By this time, according to Allen, Brewer was almost in tears, and he attempted to calm her, explaining that it was the employees' "prerogative" to eat in the parking lot and "organize" or do "whatever they want to do out there" Thereupon, in Allen's presence, Brewer telephoned Lesher at home, concluded the conversation, and "told me that Roger said to send them home "34 Thereafter, Allen entered clean room A, approached Hart and Hall, and said he wanted to speak to them out- side the room They left the clean room, and Allen told both employees that they were being sent home for the evening The supervisor then escorted the employees to the lunchroom where they were met by Quance, the se- curity guard Both employees clocked out, Quance asked for their security badges, 35 and the guard escorted the two employees outside" to the parking lot and to Hall's car At approximately 8 30 p m, Hall telephoned his wife, telling her what had occurred Thereupon, Tina Hall asked for and received permission from Dannette Brewer to leave work at the lunch hour Accordingly, testified Tina, she left the clean room A building when the employees began their lunch period—followed by the security guard She walked to where her husband was waiting in their car and observed a group of three or four employees standing next to it According to Gary Hall and Hart, who was also inside the car, the employees were asking questions about what had hap- pened, and, as Tina approached, the guard yelled to the assembled employees that they should leave the Hall's car "if they didn't want to suffer the same conse- quences" Hart further testified that the security guard owns a 357 Magnum handgun, which Hart had seen before, and that when the guard came outside to the em- ployees around Hall's car, Hart saw the guard's hand "in 34 Asked what Brewer was upset about, Allen said it was the employee meeting—"that was my impression, that she thought they were after her for some reason" 33 Quance contradicted Brewer as to why he removed the badges, saying a former supervisor told him It was Respondent's policy to remove the secunty badge from anyone who is told to leave the building 36 Brewer testified that, after speaking to Allen by telephone, she went to the lunchroom to calm herself While there and while she did not ob- serve Allen, Hall, Hart, or Quance as they stood outside that room, she overheard either Hall or Hart say "I don't know what the fuss is all about All we want to do is start a union" Upon hearing this, she real- ized that the purpose of the meeting was not to get her, but she testified that she did not change her mind about the discipline, believing the em- ployees' acts would be a "distraction" in the clean room his coat" as if reaching for a shoulder holster The Halls and Hart then drove away Chester Quance could not recall any gathering around the Hall's car later that night or observing anyone else leave the facility prior to the end of the shift and testified that, while he wears a gun holster across his hip on another job, he carries Just a clock for his job with Respondent Roger Lesher, who denied any knowledge of the union activities that evening, testified that he made the decision to terminate Gary Hall and Joseph Hart that night after speaking to Dannette Brewer inasmuch as in- volved in the conduct were "the same two people we thought we had straightened out the week prior to that" Specifically, wth regard to Hart, "on the 16th, the call that I got, that he was roaming the clean room, he was disrupting the work, he was talking to other employees all during working hours And we had Just talked to him the prior week" Specifically, as to Hall, "he had had problems the previous Friday when Dannette was gone which required a supervisor coming from the other room to talk to him about loud noises [and] cursing at the line lead, and then within the following week having problems again with him roaming the room, talk- ing to other employees and him being on probation it required he be terminated" Having made his decision, Lesher arrived at Respondent's facility the next morning, Friday, March 17, at approximately 6 30 am and imme- diately discovered "that Hart and Hall had been talking about umon" the night before "I had a note from Dan- nette Brewer stating that the night she had called me, she found out later that Hart and Hall had been going around talking to people about union business" The note, General Counsel's Exhibit No 2, reads as follows Concerning last evenings conversations The said .meetmg that Joseph Hart and Gary Hall were orga- nizing was about "Union" One particular employee that came forward felt very much intimidated and harassed This was done on company time and property The individual has stated that he will [dis- cuss] this matter His name is Don Craig° I did reassure this employee that he did nothing in error and there will be nothing to worry about [Hall and Hart] also have been instruct- ed to contact Roger in a m Asked the effect of Brewer's note on the terminations of Hart and Hall, Lesher stated, "I felt that had no bear- ing on my decision the night before" Nevertheless, ac- cording to Lesher, moments after reading the note and in light of its contents, he "made a point" of going to speak to Vice President Howard Prosky, to whom Lesher as- sertedly spoke only occasionally—"not every day"— with their normal conversation being no more than a casual "good morning," about his decision They met in a hallway, and Lesher informed Prosky that he had had problems with Hart and Hall the past Friday and the night before, "and I said that I've decided that I was going to terminate [them] " Lesher then mentioned Brewer's memorandum but said he did not think it should be a factor in his decision Usher added that he told Prosky about the contents of the note but that his 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD decision was based on what occurred the past night Prosky told him "fine, no problem That was all that was said" Prosky contradicted Usher on the frequency of their meetings and conversations, testifying they speak "every day, probably four or five times" about produc- tion As to what was said during their 630 a m discus- sion on March 17, Prosky testified that Lesher began by telling Prosky about a problem in clean room A the night before involving "fooling around" and the "harass- ing" of other employees Lesher said that Brewer "was afraid," and a guard was required to escort people from the room He added that, because of what happened, he had decided to terminate the employees at fault At this point, according to Prosky, Lesher mentioned the same employees' problems the previous Friday night "and be- cause of the past expenence and the present problems he had he felt that the best thing that we could do for the company was to terminate these two gentlemen" Prosky agreed that Respondent could not condone such conduct and asked who the two individuals were Lesher named them, and Prosky connected the names with the employ- ees to whom he spoke the mght before Thereupon, "I related to him the incident of the evening before," regarding a union Usher asked if this should change his decision, Prosky said, no if the reasons for termination are correct, then they should be done regardless" During cross-examination, Prosky stated that Usher ex- plained the above employees' misconduct "going around from employee to employee and they were talking to them and bothering them and stopping them from doing their work" Later, Prosky averred, "they were going around to all the workers in the clean room and they were bothering them" Also, during cross-examination, Prosky testified that Lesher does not speak to him about all discharges and that they have, as the past, only dis- cussed terminations "probably two or three times he's had problems" Finally, Prosky failed to testify as to whether Lesher mentioned Brewer's note during their conversation until I specifically asked He then an- swered, "He told me there was a memo and he said they had mentioned the Union in that memo Now, ex- actly the wording, he didn't read it to me" Lesher asked if this should change his decision, and Lesher replied in the negative 37 Later that morning, Gary Hall telephoned Lesher at the latter's office The alleged discnmmatee testified that he began by asking what was going on Lesher replied that he had been terminated "as of today" Hall asked why, and Lesher responded, "You're a probationary em- ployee engaged in union activity, and I and this compa- ny do not want a union here" Hall replied that he had acted within his rights, Lesher replied that the matter was closed Respondent's production manager testified to a different version of this conversation, stating that he told Hall that he had been terminated because of his "problems" on March 10 when he had cursed at and was abusive to his supervisor and on March 16 "because of 31 After speaking to Prosky, Lesher told Susie Perlman "what I was going to do" Perlman testified that all she knew was what Lesher told her and that she did not know what was in his mind Perlman continued, stating that Lesher mentioned, as the termination reasons, what occurred on March 10 and 16 and the attendance of both problems last night" and disrupting the room Hall then responded accusing Lesher of terminating him because of union activities Lesher denied it, saying they could dis- cuss it when Hall picked up his final check Joseph Hart testified that he also telephoned L,esher that morning and that the latter said he was terminated for bemg "insubor- dinate" and for "harassing employees" Both Hall and Hart returned to Respondent's facility at approximately 12 noon in order to obtain their final checks Both went to Lesher's office where Harold Allen had been speaking to the production manager Along with his final check, Lesher gave Hall two attached doc- uments, Respondent's Exhibits 9 and 16 The former is the termination notice, listing as the reasons, "insubordi- nation, excessive absence, interference with fellow em- ployees, probation not completed," and the latter is an employee warning notice, signed by Brewer and dated March 16, 1989, containing check marks for conduct ("on 3/10 insubordinate with line-lead, handled by Harold Allen upon my absence"), absence (March 1 and 3, 1989), and "other" ("harassment of another employee during working hours") Along with his final check, Lesher gave Hart Respondent's Exhibit 10 38 The docu- ment is Hart's discharge notice and lists as the reasons, "attendance problems, harassment of other employees, creatmg uncomfortable work environment" With regard to what was said, Hall testified that Lesher asked each to execute his termination notice, but both refused to do so Lesher then told Hall he was being terminated "for influ- encing company employees, harassing employees, and absenteeism" Hall asked about the warning notice nota- tion of "Insubordination" on March 10 and, turning to Allen, asked if it was the problem that had been resolved that night The latter said, yes, and Hall asked Lesher how he could be written up for that Lesher replied "I can do what I want to do" Hall then asked Lesher about the warning notice accusation of "harassment" of another employee and asked whom he had harassed Lesher replied "that he had a number of employees that I had harassed" When Lesher refused to name anyone, Hart complained that he had a right to face his accuser Lesher responded "that it didn't matter and the case was no longer open for discussion" Joseph Hart testified that, during the conversation, Lesher accused him of talking on company time Hart denied a, and Lesher said he had "several" employees who would swear that he had done so, however, he refused to name anyone Hart added that Usher accused him of having unexcused ab- sences Hart responded that he thought all his absences had been excused, and Lesher said there was no such thing as an excused absence Neither Lesher nor Allen testified as to what was said by the conversation partici- pants, and neither denied what was attributed to him by Hall or Hart 38 Although the record is unclear whether such was given to Hart at the meeting on March 17, Brewer testified that she prepared R Exh 21, a warning notice for Hart, the night before and left it on Lesher's desk Like that given to Hall, It contains checlunarks next to conduct ("3/13/89 Joseph was sent home for disorderly conduct in the clean room"), absence (3-14), and "other" ("3-16 Harassment of another em- ployee during working hours ") ELECTROMEDICS, INd 937 With regard to the reasons for discharge, Brewer testi- fied that she recommended that Hart be terminated for "disorderly conduct and harassment of another employ- ee," as set forth on Respondent's Exhibit 21, and that Hall be terminated for "insubordination of the line lead, three consecutive absences and harassment of another employee during working hours," as reflected in Re- spondent's Exhibit 16 39 Lesher, whose signature appears on both termination notices, testified that the stated rea- sons on both documents are the only reasons for the dis- charges He further testified that what occurred on the night of March 16 precipitated the discharges of Hall and Hart, stating neither would have been discharged solely for what occurred on March 10—"We had talked to them and we thought we had the problem straight- ened out, so we were perfectly willing to give them an- other chance" However, Lesher continued, given what occurred on March 16 and "all of [Hart's] previous ac- tivities" and Hall's conduct on March 10 and 16 ("it was just two things It was something that happened all of a sudden It just compounded in one week there "), he made the discharge decisions During redirect, Lesher stated that absenteeism "was not the primary reason" for the discharge of either Hart or Hall He added that ab- senteeism was merely "one of the problems" and that "the conduct in the clean room," their "disruption in the room" on March 10 and 16 was the primary reason Lesher concluded by stating that neither Hall nor Hart would have been discharged solely on the basis of exces- sive absenteeism Finally, as the record establishes, nei- ther Tina Hall nor Keith Ward was terminated by Re- spondent, each continuing to work for Respondent after the terminations of Hall and Hart B Analysis My determination as to the legality of the March 17 discharges of Gary Hall and Joseph Hart is governed by the traditional precepts of Board law in 8(a)(1) and (3) discharge cases, as modified by the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert deiued 453 U S 989 (1982), ap- proved in NLRB v Transportation Management Corp, 462 U S 393 (1983) Thus, in order to establish a prima fame violation of Section 8(a)(1) and (3) of the Act, the General Counsel must establish (1) that the alleged dis- cnminatees engaged in union activities, (2) that the em- ployer had knowledge of such, (3) that the employer's actions were motivated by union animus, and (4) that the discharges had the effect of encouraging or discouraging membership in a labor organization WMUR-TV, 253 NLRB 697, 703 (1980) Further, the General Counsel has the burden of proving the aforementioned by a prepon- 39 Asked winch employee had been harassed, Brewer answered, "Mr Don Craig° " Asked how she knew that, the supervisor replied, "This is what I was told by Dale Buntrock " She added that Buntrock told her that both Hall and Hart had spoken to Cralgo Asked if the incident of Hall going from table to table is reflected in R Exh 16, Brewer said "in the harassment of other employees" (emphasis added) Asked if, in fact, Buntrock used the term "harassed," Brewer said Buntrock "said that Joseph Hart kept going to his table and bothenng him while he was working To me that's harassment" (emphasis added) Asked about her comment "kept going," Brewer says she meant "more than one time going over to tell him to be sure he was in the parking lot at lunch" derance of the evidence Gome Mfg Go, 141 NLRB 209, 210 (1963) While the aforementioned analysis was easily applied in cases in which the employer's motivation was straightforward, conceptual problems arose in cases in which the record evidence disclosed the presence of both a lawful cause and an unlawful cause for the dis- charge In order to resolve this ambiguity, in Wright Line, supra, the Board established the following causa- tion test in all 8(a)(1) and (3) cases involving employer motivation "First, we shall require that the General Counsel make a prima fame showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision Once this is estab- lished, the burden will shift to the employer to demon- strate that the same action would have taken place even in the absence of the protected conduct" Id at 1089 Two points are relevant to the foregoing analytical ap- proach First, in concluding that the General Counsel has established a prima fame violation of the Act, the Board will not "quantitatively analyze" the effect of the unlawful motive The existence of such is sufficient to make a discharge a violation of the Act Id at 1089 fn 14 Second, pretextual discharge cases should be viewed as those in which "the defense of business justification is wholly without merit" (id at 1084 fn 5), and the "burden shifting" analysis of Wright Line need not be uti- lized Arthur Young ci Go, 291 NLRB 39 (1988) I view the instant discharges as being of the latter type and, thus, patently violative of Section 8(a)(1) and (3) of the Act At the outset, of course, analysis of the factorial and legal questions here necessitates conclusions as to the tes- timonial credibility of the several witnesses In this regard, the witnesses who appeared to be testifying in the most truthful and reliable manner were Tina Hall, Don Craig°, Dale Buntrock, and Harold Allen Each ap- peared to be an entirely candid witness and shall be relied on as to what occurred herein As to the alleged discnmmatees, Gary Hall impressed me as lacking in candor and as testifymg in a calculated manner, designed to buttress his own position, and shall be relied on here only to the extent his testimony was uncontroverted or corroborated by his wife Tina In particular, I do not credit his version of his telephone conversation with Roger Lesher on the morning of March 17, noting that, if the latter had, in fact, given Hall's union activities as the reason for his termination, Hall surely would have mentioned it during their conversation later in the day The fact that Hall never raised what obviously was a sig- nificant admission by Lesher suggests that the latter never said It Joseph Hart, while seemingly somewhat more candid a witness than Hall, exhibited a pronounced proclivity for failing to recall particularly relevant con- versations with Brewer, Craig°, and Lesher Accordmg- ly, I shall rely on his testimony only when not contro- verted by a more credible witness, uncontroverted or corroborated by a more candid witness Dannette Brew- er's demeanor was that of a particular mendacious wit- ness who, like Gary Hall, appeared to be testifying so as to protect her position She apparently fabncated por- tions of her testimony, particularly as to Hall's conduct 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD . subsequent to the break period on March 16 and as to Hart's conduct vis-a-vis Craigo that night, and I shall rely on her only when uncontroverted or specifically corroborated by other credible witnesses Likewise, Roger Lesher's testimonial demeanor was that of a disin- genuous witness, particularly, I believe, with regard to the timing of his decision to terminate Hall and Hart and to his underlying motivation While Howard Prosky ap- peared to be slightly more credible while testifying than either Brewer or Lesher, he also seemed to be testifying in a manner designed to buttress Respondent's position This was particularly apparent in his account of the early morning March 17 conversation between Lesher and himself, an account at odds with the record evidence and contradictory to that of Lesher Finally, neither the secu- rity guard, Chester Quance, nor Ellen Vella seemed to be a particularly straightforward or candid witness, and the testimony of each was contrary to that of more candid witnesses, such as Tina Hall Based on the testimony of Tina Hall, corroborating that of Gary Hall and Joseph Hart, it is clear that the alleged discnmmatees engaged in union activities Thus, the Halls and Hart met with Frank Frauenfeld, an orga- nizer for the Union, early in the afternoon on March 16 They discussed the tactics of an organizing campaign, and Frauenfeld gave the employees literature which was to be distributed to other employees Further, the Halls and Hart met with a group of clean room A employees during their break period that night, informing them of their conversation with Frauenfeld, showing them the document given to them by the latter, and inviting them to another union organizing meeting during the lunch- break The conduct, engaged in by the alleged discnmm- atees, constituted activity pnvileged by Section 7 of the Act P & L Cedar Products, 224 NLRB 244 (1976) It is equally certain that Respondent was aware of the union organizing activities of Hall and Hart Thus, Howard Prosky admitted that the alleged discnnunatees met with him at approximately 3 15 p m that day and informed him that they had spoken to a union earlier and that they thought such would be good for Respondent Further, Dannette Brewer admitted that, as the alleged discnmin- atees were being ushered from the plant that night by Chester Quance, she heard one of them say that their aim was to "start a union" Finally, Roger Lesher admit- ted that he became aware of the alleged discnmmatees' union and other protected concerted activities the next morning, March 17, when he found Dannette Brewer's note, setting forth her understanding that the lunch meet- ing the night before was for the purpose of discussing a union The foregoing facts are not in dispute What is at issue is Respondent's contention, based on the respective testi- mony of Roger Lesher and Howard Prosky, that the former reached his decision to terminate Hall and Hart after speaking to Dannette Brewer on the night of March 16, prior to becoming aware of the discrinunatees' union aspirations and speaking with Prosky, during which con- versation he assertedly informed Prosky of his earlier de- cision Contrary to Respondent, I believe, for the follow- ing reasons, that the decision to discharge the two al- leged discnmmatees was jointly reached by Lesher and Prosky during this March 17 conversation, after both men became acutely aware of Hall's and Hart's participa- tion in a union organizing campaign Initially, I note the rather glaring conflicts in their respective accounts of this conversation Thus, with regard to the frequency of their meetings, Lesher testified that they did not meet on a daily basis and that, when they did, their exchange would be a mere "good morning", while Prosky stated that the two speak "every day, probably four or five times" about production As to the content of this con- versation, Lesher failed to mention that Prosky informed him of his encounter with Hall, Hart, and Keith Ward the previous afternoon, Prosky testified that he did, in fact, describe this meeting to Lesher Further, while L,esher testified that he informed Prosky of Brewer's memorandum and its contents, Prosky failed to corrobo- rate this during his direct or cross-examination, only mentioning that Lesher referred to such a memo after I informed him of Lesher's testimony Even then, Prosky denied being told the exact contents of the Brewer memorandum Finally, as to the contradictory testimony, unlike Lesher and completely at variance with what ac- tually occurred, Prosky testified that Lesher grossly dis- torted the asserted misconduct of Hall and Hart the night before, describing them as "going around to all the workers in the clean room and bothering them" (emphasis added) Next, I note that Lesher admitted he "made a point" of speaking to Prosky upon reading Brewer's note that morning and that Prosky conceded he and Lesher rarely spoke about terminations and, then, only those involving "problems" Further, I note my previously stated belief that neither management official was a credible witness Considering all of these factors, I do not credit the assertions of the two men that Lesher reached his decision to terminate Hall and Hart prior to their meeting and reiterate my conclusion that, after learning that the two employees' conduct the night before was union-related, Lesher sought Prosky's guid- ance as to what to do about Hall and Hart and that, after Prosky informed Lesher that the alleged discnmmatees were the very same employees who had confronted him the day before about a union, the two officials jointly reached the decision to discharge Hall and Hart 40 That the union activity of the alleged discnmmatees was the motivating factor underlying their discharges be- comes manifestly certam4 ' when one considers the sham 40 I am mindful of the testimony of Susie Perlman that Lesher spoke to her later in the morning of March 17, giving as the reasons for the termi- nations the events of March 10 and 16 and attendance problems At the outset, given her blatantly contradictory testimony with Brewer regard- ing the timing and contents of their telephone conversation the night before, I have doubts as to the credibility of Perlman as to whatever Lesher may have told her Moreover, she admittedly only knew what he told her, and there is no contention that she was a participant in the dis- charge conversation Accordingly, even if credible, her testimony is of no relevance 4 ' Notwithstanding my conclusion that neither seemed to be an honest or credible witness, for the reasons stated above, I credit Usher as to his March 17 telephone conversation with Gary Hall I base this on the lat- ter's failure to raise Lesher's "admissions" when they spoke that after- noon Accordingly, I shall recommend dismissal of par 5 of the com- plaint ELECTROMEDICS, INC 939 nature of Respondent's contention that Hall and Hart en- gaged in misconduct on the night of March 16 At the outset, in this regard, inasmuch as Roger Lesher indicat- ed that what occurred that night precipitated the termi- nations, stating that the ascribed misconduct on March 10 had been "straightened out" and that their attendance alone would not have resulted in the discharges, it logi- cally follows that, absent Hall and Hart having engaged in the asserted misconduct, there exists no lawful basis for their terminations 42 Simply stated, what occurred that night was the planning of a lunchtime meeting during which employees would discuss organizing a union, and, other than Dannette Brewer's apparent para- noia that the purpose of such a meeting was "to gang up on her," nothing remotely approaching misconduct seems to have occurred Nevertheless, according to Re- spondent's version of events, Hall and Hart engaged in harassment of employees and moving around the clean room, speaking to employees and interfering with their work—such misconduct occurring subsequent to the conclusion of the 6 15 p m break 43 The defenses, how- ever, do not survive close scrutiny Thus, with regard to the asserted harassment of employees on March 16, the accusation involves the brief conversation between Joseph Hall and Don Craigo as the former passed by Craigo's worktable while returning to work following the break period The latter's account, which I credit, es- tablishes that Hart spoke to Craig° just once after the break, that, given the placement of Craigo's table, it was necessary for Hart to pass by him on the way to his own worktable, that whatever "predicament" in which Craig° believed he had been placed, by Hart's invitation to the lunchtime meeting, resulted from his own sense of loyal- ty, and that Craigo never told Dale Buntrock that he had been harassed Buntrock, who I also credit, reported the conversation to Brewer factually and without charac- terizing what occurred Yet, thereafter, without any ap- parent justification, Brewer transformed the brief ex- change between Hart and Craig° into Hart "bothering" Craigo and "harassment" of the latter Asked later to ex- plain why she termed Hart's conduct harassment, Brewer exhibited her perfidy, stating that Buntrock "said that Joseph Hart kept going to [Craigo's] table and bothering him while he was working" and that the words, "kept going," meant "more than one time going over to tell [Craigo]" about the lunchtime meeting Of course, Re- spondent accused not only Hart but also Gary Hall of harassing clean room A employees that night Asked who, Brewer once again dissembled, naming "Mr Don 42 In these circumstances, I make no findings as to the events of March 10 except to note that Hall's conduct was actually not in dispute and that whether or not Hart acted in concert with other employees in squirting alcohol and shooting rubberbands is irrelevant As a line lead and acting in Brewer's place, he should have known better than to engage in horse- play 42 Counsel for Respondent in her postheanng brief, confuses conduct which occurred before the break and that which occurred after Hart conceded speaking to employees about a breaktime meeting, conduct which may have violated Respondent's rules, but denied doing so away from his worktable It is unclear whether Ramona Moore's testimony concerns pre- or post-break conduct In any event, there is no evidence that Dannette Brewer was aware of any conduct by Hart or Hall prior to the initial break Craigo" and stating, "This is what I was told by Dale Buntrock " Of course, neither Craig° nor Buntrock testi- fied to any such conduct by Hall Moreover, contribut- ing to this pattern of fabrication was Lesher's assertion to Hall the next afternoon that there were a "number" of unnamed employees whom he had harassed Roger Lesher neither denied this testimony nor offered any ex- planation Concerning the assertion that Hall and Hart were "bench-hopping" from table to table, speaking to em- ployees and interfering with their work, Respondent relies on the testimony of security guard Chester Quance and Dannette Brewer However, neither appeared to be an honest or straightforward witness Moreover, Quance placed his observation of the alleged discnmmatees' con- duct immediately after being informed by Ellen Vella and Brewer that the latter was "concerned" for her safety, but neither Vella nor Brewer corroborated Quance about such a conversation Brewer, who I be- lieve fabricated significant portions of her testimony, stated that Dale Buntrock was with her when she ob- served the alleged discnmmatees moving from table to table Buntrock failed to corroborate her on this point In fact, none of the employees (Buntrock, Moore, Craigo, and Vella) who testified at length regarding the activities of Hart and Hall on March 10 corroborated Quance and Brewer as to the gross misconduct on March 16, and Vella could not even recall if Hart worked that night In these circumstances, I do not credit Quance or Brewer that either observed the alleged discnnunatees engaging in the asserted misconduct Based on the foregoing and the record as a whole, I am convinced that, rather than for any perceived mis- conduct, Respondent ordered that Hall and Hart be sent home from work on March 16 because of their roles in organizing a lunchtime employee meeting and Brewer's fears as to its purpose and that Respondent ascribed mis- conduct, which never occurred, to the alleged discnmm- atees as a pretext to disguise the true motive for their discharges—the union activities of each That such cor- rectly defines Respondent's motivation is manifestly cer- tam given Dannette Brewer's comments on March 16 re- garding what actually concerned her Thus, Dale Bun- trock, whom I credit, testified that after he described the conversation between Hart and Craigo to Brewer, rather than expressing outrage over Hart's "misconduct," she only "seemed to be upset about what the meeting was about" Moreover, later, when explaining to Harold Allen, whom I credit, why she requested his help, Brewer told him "that they were going to have a meeting in the parking lot Gary Hall and Joseph Hart were trying to get people together for some type of a meeting " Allen seemed certain that the fact of the meeting, and not any misconduct by Hall or Hart, was her concern Furthermore, Brewer herself testified that when she telephoned Susie Perlman that night, her concern was" just that people were told to be in the parking lot at lunch and I was scared" Fmally, although he changed in testimony later, Roger Lesher responded to counsel for the General Counsel regarding Brewer's telephone call to him, as follows "she was very con- 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cemed She sounded scared She said she thought that Hall and Hart were trying to organize something against her in the parking lot at lunch break" Based on her fears, according to Lesher, he requested that the two em- ployees be sent home In view of the foregoing, it is ap- parent that the alleged discnmmatees' asserted miscon- duct was not even an issue to Brewer and that, in reality, they were sent home on March 16 for engaging in pro- tected concerted activities, a fact about which Harold Allen warned Dannette Brewer, and terminated on March 17 when Respondent discovered Hall and Hart actually were engaging in a nascent union organizing drive In the above circumstances, given the utuon activities of Hall and Hart, Respondent's knowledge of the activi- ties, the timing of the decision to terminate the alleged discnmmatees, and, most significantly, the pretextual nature of the asserted precipitating reason for the termi- nations, the conclusion is warranted, indeed mandated, that Respondent's unlawful animus may be inferred and that it terminated Gary Hall and Joseph Hart in violation of Section 8(a)(1) and (3) of the Act 4 4 Seaboard Farms of Athens, 292 NLRB 776 (1989), Asociacion Hospital del Maestro, 291 NLRB 198 (1988), Murd Industries, 287 NLRB 864 (1987) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 By termmatmg employees Gary Hall and Joseph Hart because they engaged in union activities, Respond- ent engaged in conduct violative of Section 8(a)(1) and (3) of the Act 3 Respondent's unfair labor practices affect commerce within the meanmg of Section 2(6) and (7) of the Act 4 Respondent engaged in no other unfair labor prac- tices REMEDY Having found that Respondent engaged in serious unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to effectuate the purposes and policies of the Act I have concluded that Respond- ent unlawfully terminated employees Gary Hall and Joseph Hart on March 17, 1989, because each participat- ed in union activities Accordingly, I shall recommend that Respondent be ordered to reinstate each to his former position of employment or, if such no longer exists, to a substantially equivalent position Further, I shall recommend that Respondent be ordered to make Hall and Hart whole for any lost earnings each may 44 Respondent's counsel argued both at the hearing and in the posth- eanng bnef that neither Tina Hall nor Keith Ward, both of whom also engaged in union activities, were terminated This, of course, is a defense with which the Board has dealt in countless similar cases It is sufficient to point out that, if Respondent had a point to make in terminating Hall and Hart, terminating others would have been superfluous Amencare Convalescent Center, 280 NLRB 1206, 1211 (1986) have suffered as a result of the discrimination practiced against him as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), and Isis Plumbing Co, 138 NLRB 710 (1962), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 4 5 Additionally, I shall recommend that Respondent be ordered to post a notice, setting forth its obligations On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 6 ORDER The Respondent, Electromedics, Inc , Englewood, Colorado, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging employees because they engaged in union or other protected concerted activities (b) In an ,like or related manner, interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer reinstatement to employees Hall and Hart to their former positions or, if no such jobs exist any longer, to substantially equivalent positions of employ- ment and make each whole for the discrimination against him in the manner set forth in the remedy section above (b) Expunge from its files any reference to the March 17, 1989 terminations of Hall and Hart and notify each, in writing, that this has been done and that evidence of his discharge will not be used as a basis for any future personnel action against him (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at Electromedics, Inc , wherever notices to employees are customarily posted, copies of the attached notice, marked "Appendix " 47 Copies of the notice on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's authorized rep- resentative, shall be posted for 60 consecutive days thereafter, in conspicuous places, mcludmg all places where notices to employees are customarily posted Rea- sonable steps shall be taken by Respondent to ensure that 4 I Under New HOMORS, Interest is computed at the "short-term Federal rate" for the underpayment of taxes as set forth in the 1986 amendment to 26 USC § 6621 4 6 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 47 If this Order is enforced by a judgment of a Umted States court of appeals, the words in the nonce 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" ELECTROMEDICS, INC 941 the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in wntmg withm 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER RECOMMENDED that the complamt be dismissed insofar as it alleges that Respondent violated Section 8(a)(1) of the Act by telling an employee he was being fired as he was as probationary employee who en- gaged in union activity