Digital Equipment Corp.

National Labor Relations Board - Board Decisions

Dec 2, 1976

226 N.L.R.B. 1278 (N.L.R.B. 1976)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Digital Equipment Corp. and Jeffrey A. Keeney. Case
I-CA-10535
December 2, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
supervisors on behalf of himself and other employees re-
garding production quotas. In its duly filed answer, Re-
spondent denied that any unfair labor practice was com-
mitted . After close of the hearing briefs were filed by the
General Counsel and Respondent.
Upon the entire record in this proceeding , consideration
of the briefs , and from my observation of the witnesses and
their demeanor while testifying , I make the following:
FINDINGS OF FACT
On January 8, 1976, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Digital Equipment
Corp., Westfield, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge it is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings We also
find no basis for sustaining the Respondent's exceptions alleging bias and
prejudice The Respondent has requested oral argument This request is
hereby denied as the record, the exceptions, and the brief adequately pre-
sent the issues and positions of the parties
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This pro-
ceeding was heard in Boston, Massachusetts, on October
28 and 29, 1975, upon a charge filed on March 25, 1975,
and a complaint issued on May 15, 1975, alleging that Re-
spondent violated Section 8(a)(1) of the Act by discharging
Jeffrey Keeney due to his protected, concerted activity of
speaking to Respondent's personnel representatives and
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Massachusetts corporation with various
plants located throughout Massachusetts, including the
Westfield plant, the sole facility involved here, through
which it engages in the manufacture, sale, and distribution
of electronic equipment and related products. In the course
of such operations, Respondent annually purchases goods
and materials valued in excess of $50,000 which are
shipped directly to its Westfield location from points out-
side the Commonwealth of Massachusetts, and sells fin-
ished electrical components valued in excess of $50,000
from its Westfield location to purchasers outside the Com-
monwealth of Massachusetts.
The complaint alleges, the answer admits, and I find that
Respondent is, and at all times material has been, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole question presented in this proceeding is whether
Jeffrey Keeney was terminated in reprisal for his allegedly
protected role in seeking relief from a daily unit output
standard which he and his fellow employees deemed op-
pressive, as the General Counsel claims, or whether he was
terminated for cause, as Respondent contends, by reason
of his status as a marginal employee, whose termination
stemmed solely from his refusal to express a willingness to
fulfill the production quota prescribed by management.
B Concluding Findings
Jeffrey Keeney, a 19 year old, obtained employment at
Respondent's Westfield plant on December 16, 1974. Dur-
ing the early months of his employment, Keeney compiled
an absentee and tardiness record and further, in January
1975,' he was counseled by his supervisor concerning ex-
cessive talking and leaving the work station for personal
reasons. Upon expiration of Keeney's 3-month probation-
ary period, these improprieties led Tom Sheehan, Keeney's
supervisor, on March 11, 1975, to extend Keeney's proba-
tion for an additional month Keeney was discharged on
March 19, only 8 days later.
At its Westfield plant, Respondent manufactures a ter-
1 All dates refer to 1975 , unless otherwise indicated
226 NLRB No. 194
DIGITAL EQUIPMENT CORP 1279
mural device which, when added to a computer, makes up
an entire computer system. That terminal device is referred
to as the LA-36.
The manufacture of the LA-36 at Westfield was subject
to the immediate supervision of Thomas Sheehan. Produc-
tion of the LA-36 was conducted through two separate,
integrated assembly lines, one being involved with output
of the "printer assembly mechanism," and the other involv-
ing "cabinet assembly." From the date of his hire, Keeney
was assigned to LA-36 production, subject to Sheehan's
supervision.
The LA-36 was a relatively new product, and its manu-
facture at Westfield did not commence until May 1974,
with first shipments not being made until November 1974.
Nonetheless, Respondent intended to reach an output of
2,000 units per month by the late spring of 1975. To
achieve that goal, Respondent took a variety of steps, in-
cluding engineering changes, rearrangement and consoli-
dation of assembly lines, the hiring of additional personnel,
and finally the imposition of quotas on lines themselves
and the individual employees assigned to them.2 It was the
upward revision of these quotas in early March 1975 which
provided the background for Keeney's discharge.
Prior to March 1975, the cabinet assembly line was oper-
ated on a two shift basis, with each shift being assigned a
quota of 30 completed units per day.'
On or about March 3, 1975, Respondent implemented its
effort to achieve increased productivity by eliminating the
second shift, breaking down certain production stations on
the assembly lines through distribution of what previously
had been one man's task to several employees, by contin-
ued engineering changes, and by increasing the daily pro-
duction quota.
From the inception of these revisions, Keeney, despite
his adverse absentee and tardiness record, was assigned the
number one station on the line, which quite obviously was
the key to effective operation of the entire line. Sheehan
admitted that Keeney was selected for this station because
his attendance and punctuality problems had improved to
the point of being nonexistent, and, based upon these im-
provements, Sheehan considered him as an employee with
potential.'
Prior to March 3, the quota in effect required production
of 30 units per day. This quota was seldom met on the LA-
36 line. With the revisions made on March 3, the quota was
rasied to 70 units per day. Not a single employee on the
cabinet assembly line was able to meet the 70-unit quota
prior to Keeney's discharge.
2 The quota involved in this proceeding did not relate to a system where-
by employees could receive incentive pay
2 The cabinet assembly line was a staged out assembly type operation,
with each employee assigned a specific task on the particular unit Upon
completion of that operation, the unit would pass to the next station for the
next operation The quota operative on the entire line generally could only
be achieved if each employee on the line completed his operation an equiva-
lent number of times each day
When initially questioned by the General Counsel as to why Keeney, in
the light of his work history, was assigned to the first station. Sheehan did
not accord a responsive answer. When this question was put to him by
Respondent's counsel, Sheehan indicated that the manner in which Keeney
had corrected his past problems suggested to Sheehan that "maybe he
would come around with a little more work "
As evidence of their daily output, each day employees
assigned to the line were required to complete a job ticket,
which among other things reflected the number of times
they completed their assigned operation. After March 3,
Sheehan monitored these job tickets and, while he con-
cedes that he probably spoke to employees in March about
their individual production, he denies that he pressured
anyone to work so long as he felt they were doing the best
they could. He indicates that he would ask individual em-
ployees if they had problems which interfered with their
ability to produce at standard. He also consulted with three
or four different groups and, by his own testimony, admits
to telling employees "that the company was very serious
about meeting this seventy a day quota ... and that if any
body on the line did not want to do it I would get some-
body to do it in place of them . .. .
After the first week in March, despite Sheehan's prod-
ding, it was apparent that employees on the cabinet assem-
bly line were producing well below the preset standard.
Based on the credited testimony of Larry Bengle ,5 I find
that Sheehan during the second week of March intensified
his effort to obtain greater productivity by frequent threats
to replace those who failed to meet the quota.
It was one such threat that sparked the events leading to
Keeney's discharge. Thus Keeney credibly testified that on
Thursday, March 13, Sheehan approached him with his
daily job ticket, remarking "it doesn't look good." Sheehan
went on to inform Keeney that, if he did not complete 24
units by breaktime, he would be fired.' In consequence,
Keeney started to work as hard as he could. By breaktime,
however, Sheehan did not return to check his output. As a
result, Keeney was upset and went to see Sandy Connors,
the personnel representative having authority over the LA-
36 line 7
In his meeting with Connors, Keeney reported that the
employees were being pushed too much, that the quota
could not be met because of production problems, that it
was too high, and that all the employees had discussed this.
He also told her about Sheehan's threat of discharge and
that Sheehan did not bother to check to see if Keeney had
produced the output demanded of him that morning. In
response, Connors suggested a meeting involving herself,
Keeney, and Sheehan, and promised to set it up for that
day or the next.8
5 Larry Bengle, an employee of Respondent not on active payroll status at
the time of the hearing because of a nonwork-related disability, was the
most persuasive witness who testified in this proceeding He answered ques-
tions directly, in straightforward fashion His testimony was consistent with
the probabilities and devoid of any suggestion that any aspect of his ac-
count was exaggerated I was also impressed generally with Bengle 's capaci-
ty for recollection
6 Sheehan denied that he made such a threat to Keeney on March 13 1
did not regard Sheehan as a trustworthy witness in many significant areas
his responses were contradictory, argumentative, and evasive and seemed
calculated to avoid the logical impressions flowing from certain admitted
aspects of his conduct during the period in issue here
There are four personnel representatives, including Connors. at the
Westfield plant which employs a production and maintenance force of
some 800 workers Each personnel representative is responsible for prob-
lems arising in a separate segment of the plant
8 The foregoing is based on the credited testimony of Keeney who, as
shall be seen, was a more reliable witness than Connors I was not impressed
with Connors ' demeanor , and certain portions of her testimony struck me as
Continued
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Connors, however, did not respond and, during the en-
suing days, tension among the employees on the cabinet
assembly line continued. None met the production stan-
dard and, though the employees continued to labor under
Sheehan's threats of replacement for failing to meet the
standard, they discussed their opposition to the quota, but
took no further action until Tuesday, March 18.
Prior thereto, during the employee discussions concern-
ing the quota, Keeney spoke of his fruitless visit with Con-
nors.' In consequence, Keeney and three others on the
LA-36 line decided to see a different personnel representa-
tive, Robert Spence.10 Thus, on March 18, during the
morning break, Keeney, Buzz Fox, John Lemoine, and
Larry Bengle , all employees on the LA-36 cabinet assem-
bly line, went to the personnel office to seek out Spence.
Upon their arrival, the four employees told a secretary that
Connors had not helped them, that they were having prob-
lems on the line with the quota, and were under a great
deal of pressure. The secretary advised them that she
would try to arrange an appointment and asked them to
return at 12:30 p.m. At 12:30 p.m., all four approached
Sheehan to request permission to go to personnel to meet
contrived One such example was her testimony that Keeney during this
conversation could not clearly communicate the number of units he was
expected to produce daily This, despite the fact that, by that time, Sheehan
had brought home to employees emphatically what the Company was de-
manding of them I cannot imagine that Keeney had a confused inability to
inform Connors as to the 70-unit daily quota In passing, it is noted that
Connors' testimony in this respect, together with my assessment of the testi-
mony of Bruce Anderson, Sheehan's supervisor, aroused my suspicion as to
the possibility that both were engaged in an attempt to portray Keeney
falsely as somewhat of a dolt
9 Connors' explanation for failing to set up a meeting as promised con-
tributed further to her unreliability Thus, according to Connors, on March
17, following her meeting with Keeney, Sheehan contacted her, indicating
that he had problems concerning the attendance and tardiness of certain
employees on the LA-36 line He allegedly indicated that he had a list of
names of people with such problems and that he wanted Connors to meet
with them According to Connors, she told Sheehan to make the initial
contact with the employees and after that, if necessary, she would reinforce
his message She indicates that Keeney's name was on the list and that,
though she did not inform Sheehan about Keeney's visit, she "felt" that the
two of them would get together at the proposed meeting on the absentee
problem and also discuss the quota it was on such an assumption that
Connors excuses her failure to follow up on her promise to Keeney Consid-
ered against the entire record, Connors' testimony, aside from the fact that
Keeney's complaint to her would naturally suggest a lack of communication
between Sheehan and Keeney, in this respect impressed me as contrived I
have strong doubts as to Connors' claim that she met with Sheehan on
March 17 concerning attendance problems Sheehan was not examined as
to any contact with Connors over absenteeism, within this time frame, and
he freely conceded that Keeney's attendance was no longer a problem on
his assignment to station I on the LA-36 line as of March 3 Sheehan did
not testify as to any recurrence of Keeney's previous absentee or tardiness
problems Furthermore, Connors' testimony in this respect makes no sense
when considered against the plain evidence in the record that, prior to
March 17, Keeney and other employees on the LA-36 line had already been
counseled individually by Sheehan on attendance and tardiness problems,
in some cases this occurred repeatedly Also puzzling is the fact that Con-
nors, in a subsequent conversation with Keeney on March 19, concerning
her failure to act on her promise, though confessing to a defensive posture at
that time, made no effort to justify her inaction by referring Keeney to
Sheehan's supposed meeting on absenteeism, and her assumption of what
would occur at such meeting
10 Other employees had reported to those on the cabinet assembly line
that Spence had been effective in resolving employee problems However, as
indicated, Spence was not the personnel representative assigned to the LA-
36 area
with Spence. Sheehan at the time was working on the
printer mechanism line. Buzz Fox acted as spokesman for
the group, and he informed Sheehan of their intentions. In
response, Sheehan told the men to come with him, and
they departed on a course to the personnel office. How-
ever, as they approached Sheehan's office, he stopped, and
asked the men to wait outside. Sheehan telephoned the per-
sonnel department from his office, and a secretary in-
formed Sheehan that she had no record of such an appoint-
ment. Sheehan then rejoined the four employees, and
informed them of what the secretary had said, directing
that they go back to work, while adding that he would
check into the matter further and advise them later about
their appointment. In the course of this conversation, Shee-
han asked the employees why the meeting was sought, and
Fox informed him that it was because of the quota.
According to Connors, she was informed by Sheehan of
this effort by employees to meet with Spence at 4:30 p.m.
on March 18, at which time both agreed that a meeting
would be set up for the following day. Neither Sheehan nor
Connors, however, made an effort at any time prior to
Keeney's discharge to inform the men that such a meeting
would be held.
On Wednesday, March 19, 1975, Buzz Fox did not re-
port for work. John Lemoine, on the previous day, signi-
fied that he no longer wished to be part of the group."
Thus, of the employees who on the previous day had
sought the meeting with personnel, only Keeney and Larry
Bengle were present on March 19.
In other respects, the events of March 19 are subject to a
conflict in testimony. On the credited facts, I find that,
shortly after the commencement of work that morning,
Connors appeared in the LA-36 production area. 12 On her
11 It appears that John Lemoine approached Sheehan at or about 2 p in
on March 18, 1975, asking whether Sheehan' s earlier comments to employ-
ees on the LA-36 line were directed at Lemoine When Sheehan replied that
he was not singling out Lemoine, but was speaking to the employees as a
group, Lemoine said that he was no longer interested in attending a meeting
with personnel, thus reducing the employee group to three
12 1 discredit Sheehan's testimony that, at the outset of work on March 19,
he called Connors to the LA-36 area after a conversation with Keeney
concerning the latter's failure to produce at standard I also discredit the
testimony of Connors that her appearance resulted from Sheehan's having
requested her presence because of a problem with Keeney Keeney denied
that he had any separate conversation with Sheehan that morning concern-
ing his production, prior to the arrival of Connors, and his testimony in this
respect was corroborated by the entirely believable testimony of incumbent
employee Willie Wright, as well as Larry Bengle , both of whom testified
that the first person to approach Keeney on the line that morning was
Sandy Connors In crediting Keeney, Wright, and Bengle, I note that the
production tickets for March 18 lend plausibility to their account, in that
Keeney's production records for March 17 and 18 disclose nothing which
would warrant Keeney's being singled out for direct personal criticism by
Sheehan Although Sheehan claims that he did not pressure any one to
work, as long as he felt they were doing the best they could, and that he did
not on an individual basis speak to each employee about whether he was
meeting the quota in March, he conceded that, between March 3 and 18,
Keeney's productivity had improved Also noteworthy in this respect is the
conflicting testimony of Connors and Sheehan as to what occurred upon
Connors' arrival in the LA-36 area Thus Sheehan testified to the effect
that, upon her arrival at the LA-36 area that morning, after showing Con-
nors Keeney's job, they immediately went to his office to discuss it Con-
nors, however, relates that, after having been shown Keeney's Job, Sheehan
was called elsewhere on a production problem, that Sheehan left them for a
period which enabled Connors to discuss the Spence matter with Keeney,
and that they did not proceed to Sheehan's office until Sheehan returned
Based upon my observation of the witnesses and their demeanor as well as
DIGITAL EQUIPMENT CORP
arrival, she immediately confronted Keeney, asking why he
had gone to see Spence since she, since March 13 or 14,
had been aware of his problem. Keeney expressed his dis-
appointment in Connors' failure to act on her promise to
set up a meeting. Connors indicated that she was sorry he
felt that way, but advised that she was Keeney's personnel
representative and that Bob Spence could do nothing to
help him. According to Connors, her tone during her con-
versation with Keeney was defensive and she was upset.
Although Connors attempted to attribute these feelings to
her sensing that she had let Keeney down, apparently by
virtue of her failure to take more aggressive action on her
promise to schedule a meeting, she made no effort to cor-
rect any such feeling by indicating to Keeney that such a
meeting had been arranged 13 or in any other manner sug-
gesting to Keeney that she would offer assistance on behalf
of his expressed opposition to the fairness of the quota.
The above conversation ended with Sheehan's arnval,
whereupon all three proceeded to his office. Based upon
the credited testimony of Keeney and Larry Bengle, I find
that, before leaving the LA-36 line on that occasion, Kee-
ney beckoned to Larry Bengle, in a manner which suggest-
ed to Bengle that Keeney wished Bengle to join them. I
also find based on Keeney's testimony that, before reach-
ing Sheehan's office, he specifically requested that Bengle
be permitted to join them because he was concerned about
the fairness of a meeting on a two-against-one basis.14
Sheehan admittedly rejected that request on the ground
that at that point the problem centered upon Keeney per-
sonally. Of significance to the overall incredulity of Con-
nors is the fact that while she at that point knew that the
conference in Sheehan's office would relate to the quota
issue , and claims to have felt badly for letting Keeney
down, she failed to oppose Sheehan's exclusion of Bengle.
In the course of the meeting in Sheehan's office, Con-
nors and Sheehan questioned Keeney as to the reasons for
his failure to meet the quota and, according to Connors,
she repeatedly asked Keeney if he would commit himself to
try to meet the quota. To this Keeney would simply re-
spond "no comment." When asked to identify problems
contributing to his inability to make the quota, Keeney
would respond either by saying "no problems" or by re-
maining silent. In the course of the conference, Connors
told Keeney that if he persisted in refusing to discuss the
problem or continued to reply "no comment," he would
leave the Company with no alternative other than to dis-
charge him. Despite this, Keeney repeatedly responded no
comment and declined to give the desired answer that he
would commit himself to attempt to satisfy the quota.
At the close of the conference, Connors told Keeney to
go back to the production line, and Connors and Sheehan
went to the personnel office. According to her testimony,
the probabilities, I find that, prior to the appearance of Connors in the LA-
36 area, Sheehan did not have an individual discussion with Keeney con-
cerning his failure to meet the quota , and that Connors' appearance in that
area may not be explained as prompted by any such conversation
13 It will be recalled that Connors and Sheehan claimed that, on March
18, they decided to meet with the four employees on the next day
14 1 discredit the testimony of Sheehan and Connors that Keeney made no
request that Bengle be present until midway in the subsequent counseling
session in Sheehan's office
1281
they consulted with James Barnes, the Respondent's Equal
Employment Opportunities Commission manager, inform-
ing him of their intention to discharge Keeney and the
basis for such action. With this, Barnes advised that he was
not aware of any lawful impediment to Keeney's discharge.
At this point Sheehan and Connors went to the latter's
office where they decided to effect the discharge. Keeney
was called to the office of Connors, where Sheehan filled
out the termination notice and read it to Keeney. Keeney
declined to sign the discharge notice, but requested an op-
portunity to talk to Bruce Anderson, Sheehan's superior.
After that conversation, according to Anderson, he sup-
ported the action of Sheehan and Connors in discharging
Keeney.
The discharge notice contained comments over the sig-
nature of both Supervisor Sheehan and Personnel Repre-
sentative Connors. The explanation for the discharge speci-
fied by Sheehan states as follows:
Unable to produce standard on job, plus he had an
attendance and tardiness problem, and I feel a nega-
tive attitude towards his Job.
That of Connors recited as follows:
Jeff was counselled by Tom Sheehan and Sandy Con-
ners [sic] regarding his attitude, production, and atten-
dance. The production standard for the area had been
set at a min of seventy per day and Jeff consistently
failed to meet the no. His attitude about the require-
ment was extremely poor-he could not give any rea-
sons why he was unable to meet the schedule. His
supervisor and I gave him numerous opportunities to
say he was willing to try with his best effort to make
the no., but he was unwilling to do that. Because Jeff
worked in a high volume product area where produc-
tion schedules are extremely important and since he
was unwilling to produce he was terminated.
Respondent contends that the discharge of Keeney was
legitimately grounded "upon his poor attitude towards his
job and his unwillingness to cooperate with the Respon-
dent and an unwillingness to make a general statement that
he would try to meet the quota for the job or that he would
try to do better." Despite the notations on the notice of
discharge, made by Sheehan, to the effect that the dis-
charge was also based on Keeney's inability to produce
standard on the job, and his attendance and tardiness
problem, these factors, though adopted in Respondent's
formal answer to the complaint, declined in their signifi-
cance as the evidence began to develop at the hearing. In-
deed, Sandy Connors admitted that Keeney would not
have been discharged if, in response to the commitment
sought from him by Connors, Keeney would have said that
he "will try to go out and work a little harder or try to
achieve the goal." With the admission by Connors, it fol-
lows that, from Respondent's own view, the lack of cooper-
ation and poor attitude with which Keeney was charged
was denved exclusively from his failure to respond to re-
peated questions at the March 19 meeting in Sheehan's
office, calculated to obtain his commitment to the status
quo.
In the circumstances, I find entirely persuasive the con-
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tention made by the General Counsel that an unlawful mo-
tivation is substantiated on the above reason assigned by
Respondent for Keeney 's discharge.
In so concluding , I note that during the period preceding
the discharge everyone associated with the LA-36 at West-
field was under great pressure to increase the output of that
product . The strain on employees during that period is cer-
tainly understandable in the light of the failure of any one
to meet the quota, compounded by Sheehan's frequent and
repeated threats of replacement if the quota were not met
It is against this background that Keeney initially, on
March 13 , and Keeney , together with Fox, Lemome, and
Bengle on March 18 , sought meetings with personnel to
protest the quota they felt unjust.
Aside from the failure of management to communicate
to the employees a willingness to meet on this issue, one of
the four employees, Keeney, was discharged concededly
after his refusal to state affirmatively a willingness to go
out and put forth his best effort to meet the existing quo-
ta.15 In the circumstances , Keeney was being asked to give
up his support of employee efforts to seek relief from the
quota or in other words to suspend his participation in the
concerted protests . I cannot imagine that Connors and
Sheehan were not fully mindful that Keeney could hardly
agree to do his best to perform in satisfaction of the ex-
isting quota, while at the same time participating in an
affirmative group action seeking relief from that standard.
As a general proposition , the National Labor Relations
Act does not impinge upon the right of managers to foster
greater productivity among employees And, indeed, as an
abstraction, there is nothing unlawful in efforts by supervi-
sors during individual interviews to obtain verbal commit-
ments from employees that they will work harder. On the
other hand , the Act protects, through Section 7, the right of
employees "to engage in ... concerted activities for the
purpose of collective bargaining or other mutual aid or
protection ," and the effort by Keeney and his fellow em-
ployees on March 18 to seek relief from the quota through
meetings with personnel representatives was protected con-
certed activity within the meaning of the Act.
Had Respondent given these employees the opportunity
to air their complaints, and then insisted on adherence to
the quota , no unfair labor practice would have resulted
from the subsequent discharge of any employee who re-
fused to pledge individually his intention to work as hard
as he possibly could to meet the quota . However , the vice
in Respondent 's action in this case is that , by taking such a
step prematurely and before responding to the concerted
expression by employees, Respondent ' s deliberate dis-
charge of an employee for refusing to express a commit-
ment inconsistent with his continued participation in pro-
tected concerted activity thwarted employee efforts to
exercise Section 7 rights.16
In addition to the foregoing , the conclusion that Keeney
was discriminatorily discharged is enforced by other con-
siderations on this record.
15 Sheehan admits that in conversations with Keeney , prior to March 19,
Keeney probably had stated that he was trying his best to meet the quota
16 See , e g, Gullets Gin Company, Inc v N L R B, 179 F 2d 499 (C A 5,
1950)
Thus, the credited testimony points inescapably to the
conclusion that , while Respondent may have encouraged
employees to voice their complaints and problems to per-
sonnel representatives as a general proposition , the chal-
lenge to the quota was viewed by Sheehan and Connors as
presenting a direct obstacle to the desired increase in pro-
duction of the LA-36, and that in their zeal to further
Sheehan's heavyhanded approach to the quota both re-
acted out of a necessity to suppress employee opposition to
the quota at its inception . Keeney was the logical foil in
this effort . His probation had been extended due to past
work derelictions and, Fox being absent from work on
March 19, left Keeney as the principal antagonist of the
quota who was working that day. The claim by Respon-
dent, that he was singled out that day because of his low
production , is not supported by the daily production rec-
ords which are in evidence , and which indicate that on the
previous day he was among the more prolific producers on
the cabinet assembly line . Furthermore, his having operat-
ed from the number one station , the key to efficiency on
the cabinet assembly line since March 3 , and Sheehan's
admission that his production had improved in the period
between March 3 and the discharge support the conclusion
that it was Keeney's role in the employee protest of the
quota, rather than any alarm with low productivity, that
triggered the events of March 19 which culminated in his
discharge.
That this was the case is the only explanation for testi-
mony of Connors, who portrays herself as having handled
the initial complaint by Keeney and the events that fol-
lowed in a completely insensitive and bungling fashion, as
evidenced by her failure to act on her promise to set up a
meeting pursuant to Keeney's initial request ; her some-
what insipid and incredible assumption that this was un-
necessary because Keeney would raise the issue in an al-
leged meeting that Sheehan was to conduct concerning
attendance problems; her tacit support on March 19, de-
spite an awareness of her having let Keeney down , of Shee-
han's exclusion of Bengle from the subsequent meeting
with Keeney; her failure at any time on March 19 to advise
Keeney that a meeting would be held at which the employ-
ees could air their protests concerning the quota ; her per-
sistent questioning of Keeney as to why the quota could
not be met, despite the fact that Keeney had given her such
reasons at their earlier meeting on March 13 , and her over-
all conduct on March 19 considered against both her ad-
mitted responsibility for presentation of complaints to
management on behalf of the employees and her knowl-
edge that the meeting with Keeney that day centered upon
an issue which was the subject of employee complaints, to
which management had not as yet responded . It was my
impression that Connors' inactions, unbelievable excuses,
and admitted failure to take any steps suggesting genuine
interest in affording employees an opportunity to concert-
edly express their position on the quota ought not be light-
ly dismissed as a self-confession to ineffectiveness by a per-
sonnel representative , but instead point to a contrived
effort on her part to veil her alliance with Sheehan in quell-
ing all resistance among employees to the level of output
demanded by Sheehan and Anderson.
Based on the foregoing and the credited testimony in
DIGITAL EQUIPMENT CORP.
this case, I find that the meeting in Sheehan's office on
March 19 was prompted by a desire to break down a mani-
fest employee resistance to the quota, that Keeney's refusal
to respond to the request that he state that he would try to
meet the quota was perfectly consistent with the preserva-
tion of his protected concerted activity, and that, having
discharged him for his failure to respond to said questions
concerning that quota, Respondent was motivated by a de-
sire to suppress protected activity and thereby violated Sec-
tion 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Digital Equipment Corp. is, and at all times material
has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by dis-
charging and refusing to reinstate Jeffrey A. Keeney, to
discourage employees from engaging in the protected ac-
tivity of seeking a meeting with personnel representatives
to protest, in concert, a production quota which employees
felt to be unfair.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully dis-
charged and refused to reinstate Jeffrey A. Keeney, it will
be recommended that Respondent offer him immediate re-
instatement to his former position or, if such job no longer
exists, to a substantially equivalent position, without loss of
seniority or other rights and privileges, discharging if nec-
essary any replacement, and make him whole for any loss
of earnings he may have suffered by reason of the discrimi-
nation against him, by payment of a sum of money equal
to the amount that he normally would have earned from
the date of discrimination to the date of a bona fide offer
of reinstatement in accordance with the Board's formula
set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon at the rate of 6 percent per
annum as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I issue the following recom-
mended:
ORDER 17
Respondent Digital Equipment Corp ., Westfield , Massa-
chusetts , its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging employees from engaging in protected
concerted activity by discharging , denying reinstatement
to, or in any other manner discriminating against them
with respect to terms and conditions of employment be-
1283
cause they choose to engage in protected , concerted activi-
ty.
(b) In any 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 which is found
necessary to effectuate the purposes and policies of the
Act:
(a) Offer to Jeffrey A. Keeney immediate and full rein-
statement to his former position or, if such position no
longer exists , to a substantially equivalent position, dis-
missing if necessary any replacement , and make him whole
for any lost earnings resulting from the discrimination
against him by payment of a sum determined in accor-
dance with the formula set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon 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 neces-
sary or useful in analyzing the amount of backpay due
under the terms of this recommended Order.
(c) Post at its place of business in Westfield , Massachu-
setts, the attached notice marked "Appendix ." 18 Copies of
said notice , on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's au-
thorized representative , shall be posted by the Respondent
immediately upon receipt thereof , and shall be maintained
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken to as-
sure that said notices are not altered, defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith.
17 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
18 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National 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 discharge or otherwise discriminate
against any employee because he has engaged in ac-
tions in concert with other employees to seek relief
from oppressive labor conditions through meetings
with management.
WE WILL NOT in any like or related manner interfere
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrain , or coerce our employees in the exercise Keeney and make him whole for any loss of earnings
of their right to engage in concerted activities for the he may have suffered by reason of our discrimination
purpose of mutual aid or protection as guaranteed in against him in the manner set forth in the Decision of
Section 7 of the Act, or to refrain from any and all the Administrative Law Judge.
such activities.
WE WILL offer immediate reinstatement to Jeffrey A. DIGITAL EQUIPMENT CORP.