Jeannette Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1975

217 N.L.R.B. 653 (N.L.R.B. 1975)

JEANNETTE CORPORATION 653
Jeannette Corporation and Barry R. McNeely. Case
6-CA-7757
April 30, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On January 31, 1975, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a brief
in support of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Relations Board has delegated its authority 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 briefs
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 Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Jeannette Corporation, Jeannette, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommended
Order.
qualified rule which prohibited employees from discussing
wage rates with other employees and discharged employee
Cheryl A. McNeely , at least in part, for engaging in protected
concerted activity in breach of this rule. At the close of the
hearing, the Respondent made a short oral statement of posi-
tion on the record . Thereafter, briefs were filed by the Gen-
eral Counsel and the Respondent in support of their respec-
tive positions.
Upon the entire record,' and from my observation of the
demeanor of the witnesses , and with due consideration being
given to the arguments advanced by the parties, I make the
following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation with its prin-
cipal office and place of business in Jeannette, Pennsylvania,
is engaged in the manufacture and nonretail sale of glass,
ceramic, and plastic products. During the 12-month period
immediately preceding the issuance of the complaint herein,
the Respondent received directly from sources outside the
State goods valued in excess of $50,000 which were used in
its operations within the State. During the same period, the
Respondent shipped from its Jeannette plant finished pro-
ducts valued in excess of $50,000 directly to points located
outside the State.
It is admitted, and I find, that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Introduction ; the alleged invalid rule; the issues
1 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
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all parties represented, was heard on December 12,
1974 in Pittsburgh, Pennsylvania, on the complaint of the
General Counsel issued on October 30, 1974' and the an-
swer of Jeannette Corporation, herein called the Respondent
or Company. In issue are the questions whether the Respond-
ent, in violation of Section 8(a)(1) of the National Labor
Relations Act, as amended,2 maintained in effect an un-
I The complaint is based on original and amended charges filed by Barry
R. McNeely on September 13 and October 29, 1974, respectively, copies
of which were served on the Respondent by registered mail on September
13 and October 30, 1974, respectively
The Respondent's clerical employees are not represented
by any labor organization, although its hourly production
and maintenance employees not here involved are. The cleri-
cal employees, who apparently are salaried, work in various
locations. A large number of them are employed in the main
office building which is situated in front of the manufacturing
facility. Other clerical employees are employed in the payroll
department which is housed in a separate building. There are
still other clerical employees assigned to offices in various
departments located in the plant itself.
For a number of years the Respondent has maintained in
effect an unwritten rule prohibiting employees from discuss-
2 Sec. 8(a)(1) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 " Insofar as pertinent, Sec. 7 provides that
[e]mployees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
3 No opposition having been received, the General Counsel's motion to
correct transcript of testimony is hereby granted and the transcript is ac-
cordingly corrected.
217 NLRB No. 122
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing wage rates with other employees ., According to G.
Richard Mallory , the vice president of manufacturing, the
rule is designed to preserve the confidential nature of the
salaries paid the clerical employees and thus to avoid a dis-
ruptive situation and unhappiness from developing among
those employees which disclosure of the varying salaries
would necessarily produce. It appears from the uncontrov-
erted testimony of Paula Caranese, a former clerical em-
ployee, that notwithstanding this rule the low wages prevail-
ing at the Company's establishment were "a main topic" of
discussion among the clerical employees "all the time." As
related below , Cheryl A. McNeely was discharged on Sep-
tember 6, 1974 ,5 as a result , at least in part , of the enforce-
ment of the above-mentioned rule. It is the General Counsel's
position that this rule is an impediment to the employees'
statutory right to engage in concerted activities for mutual
aid and protection and therefore is violative of Section 8(a)(1)
of the Act and that McNeely's discharge as a consequence of
the application of this rule also violated this provision of the
Act. The Respondent, on the other hand , denying that it
committed any-unfair labor practices , argues, in substance,
that the rule was not a per se violation of Section 8(a)(1) of
the Act and that McNeely's discharge was permissible since
her salary discussions did not amount to protected concerted
activities , and, in addition , she had made a willful misre-
presentation to employee Caranese that she had secured a
$100 salary increase and to Vice President Mallory that Per-
sonnel Director Dennis Petti had promised her an increase at
the time she was hired . We turn to the evidence.
2. McNeely's employment; her subsequent salary
discussions with employees
Cheryl McNeely was hired on July 15 by Personnel Direc-
tor Petti at $435 per month primarily as secretary to Richard
Mallory, the vice president of manufacturing, with additional
duties to be performed for Petti and four men in the nearby
Engineering Department. At this time, Petti told McNeely
that the $435 she would be paid was only a starting salary
which would be raised as soon as she demonstrated her capa-
bility to handle the job.6 Admittedly, Petti did not specify a
date when her work would be evaluated to determine her
eligibility for a raise or the amount of such a raise. McNeely
started working the next day and continued until her dis-
charge on September 6 under circumstances which will be
considered below. Mallory characterized her performance as
"very satisfactory" and testified that she presented no prob-
lems.
Becoming unhappy with what she regarded as low pay she
was receiving, which had not been raised since her hiring,
4 The complaint alleges, and the Respondent's answer admits, the exist-
ence of such a rule In its brief, the Respondent concedes it has "a policy
that salaried employees should not discuss wages with one another" but
qualifies its statement by adding "on the company premises on company
time." However, this qualification is unsupported by any record evidence
5 Unless otherwise indicated, all dates refer to 1974
6 Petti's statement concerning a raise reflects the testimony of McNeely
who impressed me as a trustworthy and reliable witness. Petti's testimony
with respect to what he had told McNeely at the time he hired her is
essentially the same. Thus, he testified that he had explained to her that the
$435 a month was "a starting salary and that depending on her performance
there were growth opportunities both position wise and economically "
McNeely, between the latter part of August and her termina-
tion on September 6, engaged in a number of separate conver-
sations with Debra A. Groves, Plant Manager Louch's secre-
tary, and Paula Caranese, the then secretary to Packaging
Director Val Kuplis, concerning the low clerical salaries be-
ing paid by the Company. The three employees worked in
offices close to each other in the plant location. Specifically,
McNeely gave the following testimony regarding her conver-
sations with Groves: These discussions with Groves occurred
almost every day during that period, mostly in the ladies'
room before work and sometimes at Groves' desk. Both of
them used these occasions to express their dissatisfaction with
the prevailing low clerical salaries and, in particular, their
own. On one occasion on August 30, after McNeely had given
Groves her salary check,' Groves spoke to her later, in the
day and told her that she still had not received a raise in the
new job to which' she had recently been transferred!
McNeely suggested to Groves that she ask her boss for a raise
because she had been promoted to her present job without an
increase in pay. The upshot of this conversation was that both
of them decided to speak to their respective bosses "and do
something about" getting raises.'
On September 6, about 7:45 a.m., before the start of work,
McNeely met Groves in the ladies' room and informed her
that she intended to ask Mallory for a raise that day and
suggested that Groves do the same. Groves agreed with the
suggestion.
Contradicting McNeely, Groves testified that she had only
one conversation with McNeely and that took place about 2
days before McNeely's discharge10 at the copy machine next
to Groves' desk. According to Groves' account, the following
transpired: This conversation, which lasted only "a few mi-
nutes, just long enough to make a copy," opened up with
Groves asking McNeely how she had met her boyfriend.
McNeely replied that she had met him at the radio station
where she had been previously employed. This led to McNee-
ly's comparing her salary at the radio station with the lower
salary the Respondent was paying her. McNeely then de-
clared her intention to request from Mallory a 9100 increase.
Groves further testified that McNeely never told her to ask
for an increase nor did McNeely inquire how much she was
making. Groves also denied informing McNeely how much
I One of McNeely's duties was to distribute the salary checks among
clerical employees in the area
8 It appears that Groves started working for the Respondent on July 10
as a temporary replacement in the file room Subsequently, at an undisclosed
date before the above conversation, Groves was transferred to her present
job as secretary to Plant Manager Louch without an increase in salary.
9 McNeely testified that Groves told her that thereafter on two separate
occasions she had asked her boss for a raise and that her boss replied that
he would see about it Groves, however, contradicted McNeely and denied
that she requested an increase at those times or reported to McNeely that
she had. Groves, nevertheless, testified that in November she asked her
supervisor, Louch, for an increase, which was granted in the middle of that
month It is noted that, although Petti and Mallory testified that it is normal
company policy not to grant an increase earlier than 6 months after the
beginning of employment, Groves received her increase 4 months after she
was hired
10 It appears from Groves' account that McNeely was not yet married at
the time of this conversation If this is so, the conversation could not have
taken place about September 4 since McNeely had been married in August.
Probably, this was one of several conversations that McNeely testified she
had with Groves.
JEANNETTE CORPORATION
she was earning . " In disagreement with Groves ' testimony,
McNeely testified that she did not mention to Groves that she
wanted a $100 raise , although she did make that statement
to Caranese, as related below.
I find McNeely 's account of her several conversations with
Groves, who is still in the Respondent 's employ, as reason-
able and worthy of belief. McNeely impressed me as a sincere
and candid witness who was not prone to contrive testimony
to support her case. I, accordingly , credit her testimony.
As indicated above, McNeely testified that she also dis-
cussed the-subject of a salary raise with Caranese. Thus,
McNeely credibly testified: About 9:30 the same morning.
(September 6), McNeely went to Caranese's office where
McNeely expressed to Caranese her discontent with the sal-
ary she was being paid , asserting that she had been hired at
a starting salary of $435 a month with the understanding that
she would receive a raise as soon as she showed that she was
capable of handling her job . McNeely also told Caranese that
she wanted a $100 raise . In response, Caranese indicated her
dissatisfaction with the salary she was receiving and referred
to McNeely's predecessor who had quit because of,her dis-
satisfaction with the salary she was paid.
Caranese 's version of this episode, as she recalled it, is
essentially consistent with McNeely 's, although there are in-
consequential variances in their testimony . According to
Caranese , on September 6, she and McNeely discussed the
general subject of salaries. In the course of this discussion,
McNeely stated that she was hired at $435 a month and that
at the time of hiring she was promised more because she had
told the Company that she would not work for that amount.
McNeely then said that she was going to ask for a $100 raise.
3. McNeely's request for a raise; her subsequent report to
Groves and Caranese
Later in the morning of September 6, McNeely entered
Vice President Mallory's office to request a raise. McNeely
testified that there she informed Mallory that at the time she
was hired Personnel Director Petti told her that her monthly
salary of $435 was only a starting salary and that it would be
raised as soon as she showed that she was capable of handling
the job. She further testified that, after commenting that
nothing had been done about a raise, she inquired of Mallory
when she would get one, and that Mallory replied that he
would talk to Petti and get back to her. On this note, the
meeting ended . Although McNeely had previously indicated
to Caranese that she intended to ask for a $100 raise, it is
undisputed that she did not specify any amount to Mallory.
The only difference between McNeely's and Mallory's ac-
count of this conversation is that, according to Mallory,
McNeely told him that "she had been promised a raise
[by Petti] after she had been there some time." Consistent
with McNeely 's testimony , Mallory testified that, when
McNeely indicated that she believed that the time for a raise
had arrived, he replied that he would speak to Petti.
I find that McNeely's testimony that she informed Mallory
that Petri told her at the time she was hired that her salary
would be raised if she demonstrated her ability to handle the
McNeely testified that, in one of these conversations, Groves told her
that she was being paid $2 an hour There is no evidence that this was
actually not Groves' rate of pay before she received an increase in Novem-
ber.
655
job is, in all probability , a more accurate and reliable account
than Mallory's testimony that McNeely told him that Petti_
had promised her an increase at some indefinite time in the
future." It is clear that McNeely's testimony reflects the
statement Petti actually made to McNeely at the time of her
employment and, since concededly McNeely's performance
proved to be "very satisfactory," there appears to be no con-
ceivable reason why she would not disclose to Mallory Petti's
earlier statement , as she testified . I therefore credit the tes-
timony of McNeely whom I have found to be a credible
witness.
After leaving Mallory's office, McNeely went to Groves'
office and informed her that she had asked Mallory for a
raise. Groves, in turn, told McNeely that in the morning she
had also spoken to her boss about a raise and that her boss
stated that he "was going to see about it." Following this
conversation, McNeely also informed Caranese that she had
requested a raise from Mallory and that she was very hopeful
because she was not given "an immediate no."13
4. Subsequent events leading to the decision to discharge
McNeely
According to Mallory, within an hour after speaking to
McNeely, he went to Personnel Director Petti's office where
he discussed with Petti McNeely's request for a raise, as
follows: Mallory asked Petti whether he had told McNeely
that she would get an increase . Petti answered in the negative
and, in response to Mallory's further question as to what he
had told her when she was hired , Petti said that he stated that
it was "a beginning situation . . . depending on how well you
do, how far you advance, what responsibilities you are able
to take on , we will see how you advance." Petti also advised
Mallory that he had made no promise of an increase. The
conversation concluded with Mallory instructing Petti to dis-
cuss the matter with McNeely who was under an erroneous
impression concerning her right to an increase . Petti agreed
to do so.14 No decision was made at this time whether or
not to grant McNeely an increase or to terminate her; nor did
Petti speak to her until he discharged her near the close of the
workday.
In the meantime , after McNeely had apprised Caranese of
her intention to request a wage increase , Packaging Director
Val Kuplis entered Caranese's office and invited her to his.
When they arrived there, Kuplis inquired why Caranese was
upset. In response , Caranese stated that she was upset over
"working conditions , salaries and things" and the fact that
some employees are paid higher salaries than other girls who
"work really hard." When Kuplis further inquired what, in
particular, brought this on and why she was "down on the
company," Caranese answered that she had been talking to
another employee who, although the employee was there a
12 As will later be discussed , the Respondent relies on Mallory's and
Petti's testimony to establish a willful misrepresentation by McNeely and
thereby to justify, in part, her discharge
13 These findings are based on the credited testimony of McNeely and
Caranese
14 Petti 's version of this conversation was substantially the same. Accord-
ing to his testimony , he denied promising McNeely a wage increase , adding
that at the time she was hired he told her that her salary was a "starting
salary and that contingent on her development , there were growth
opportunities both financially and position wise "
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shorter time than she was, that employee was making more
money than she was and "was going to ask for a raise."
Kuplis then asked whether Caranese's problem was that she
wanted more money and Caranese answered in the negative.
Finally, in reply to Kuplls' question, Caranese identified
McNeely as the girl to whom she was referring. Kuplis ended
the conversation, saying that he would talk to Caranese later
in the day.15
Thereafter, about 3 o'clock in the afternoon, Kuplis went
to Mallory's office and advised Mallory of his conversation
with Caranese. According to Mallory, Kuplis told him that
he had learned from Caranese that McNeely had informed
Caranese that Mallory had granted McNeely a $100 salary
increase, which upset Caranese. As found above, there is
absolutely nothing in Caranese's uncontroverted testimony
that she had conveyed to Kuplis such groundless information
concerning a raise.
Mallory further testified that, as a result of Kuplis' disclo-
sure, he summoned Petti to his office to consider with him
and Kuphs the disturbing developments. According to Petti,
the three of them thereupon reviewed "these stories" about
Caranese approaching Kuplis and requesting a raise16 be-
cause she had been in the Respondent's employ longer than
McNeely and was making substantially less money than
McNeely, and because McNeely informed Caranese that she
was granted a $100 raise, which was false.
Both Mallory and Petti testified that a decision was then
reached to terminate McNeely. Mallory testified that the
reasons for this decision were McNeely's breach of confi-
dence in discussing her salary with an employee; her fabrica-
tion and willful misrepresentation to an employee (Caranese)
that she had received a $100 salary increase; 17 and the fact
that the episode involving the vice president's office was "a
very disturbing element." Petti, in his testimony, added
another reason for McNeely's discharge-her misrepresenta-
tion to Mallory that he (Petti) had promised her an increase.
5. The discharge
At or about 4:45 p.m., near the close of the workday on
September 6, McNeely was called into Petti's office. Petti
referred to the conversation he had had with Mallory in the
morning in which he learned that McNeely had requested a
raise. Noting that he could not remember what he had told
her when she was hired, McNeely stated that there must have
been some misunderstanding between them since wage rates
were not usually reviewed until 6 months after employment.
He then informed McNeely that she was being terminated
because she had broken the Company's policy of confidence
in discussing her salary with another office employee.
McNeely replied that she had never heard of such a rule, nor
was she ever advised of its existence when she was employed.
Petti, however, stated that the rule had been in effect for some-
time. McNeely repeated that she was unaware of the rule or
15 The foregoing narration of the conversation between Caranese and
Kuplis is based on the former 's undisputed testimony , which I credit Kuplis
was not produced as a witness
16 There is absolutely no evidence that Caranese requested a raise. Indeed,
the evidence is to the contrary.
17 Mallory testified that it was not the Company's policy to discharge
employees simply for requesting a wage increase
that she had done anything wrong and apologized for discuss-
ing her salary with anyone. When she also argued that dis-
charge was too drastic a penalty for her act, Petti disagreed
and asserted that it was serious enough to warrant dismissal
since the employee with whom McNeely had discussed her
salary had been in the Company's employ for 2 years and was
earning less than she was. Moreover, Petti noted, when that
employee learned that McNeely was also requesting a raise,
she mentioned McNeely's request to her supervisor who, in
turn, complained to Mallory. At the conclusion of the dis-
charge interview, Petti told McNeely, who was then in tears,
that he would give further thought to the matter and call her
the next morning. Nothing was said by Petti in this conversa-
tion that her discharge was due to her misrepresentation of
facts to Caranese. Indeed, when McNeely asked Petti
whether there were any additional reasons for her termina-
tion other than her salary discussion with another employee,
Petti answered in the negative.
At or about the same time as McNeely's discharge inter-
view, Kuplis summoned Caranese to his office a second time.
On this occasion, Kuplis informed Caranese that as of 5 p.m.
McNeely's employment with the company would cease. In
response to Caranese's question, Kuplis told her that the
reason for the discharge was that McNeely "had broke
[sic] strict confidential information " in discussing her salary
with Caranese in violation of company policy. Kuplis also
added that he was supposed to fire Caranese also because she
and McNeely "both talked too much."18
As promised, Petti telephoned McNeely the following
morning (September 7) and advised her that he had to adhere
to his decision to fire her.
B. Concluding Findings
1. With respect to the Respondent's rule
The complaint alleges, and the answer admits, that the
Respondent maintains in effect a rule prohibiting employees
from discussing wage rates among themselves. I find that this
unqualified rule constitutes a clear impediment to, and a
restraint upon, employees' Section 7 right to engage in con-
certed activities for mutual aid and protection concerning an
undeniably significant term of employment. Accordingly, I
find that the rule violates Section 8(a)(1) of the Act, whether
or not the rule is viewed as a matter of company policy, as
the Respondent describes it in its brief.
2. With respect to McNeely's discharge
It is the General Counsel's position that McNeely's salary
discussions with clerical employees Groves and Caranese
were a form of concerted activity for mutual aid and protec-
tion safeguarded by the Act and that therefore her discharge
for engaging in that conduct in breach of the above rule
violated Section 8(a)(1) of the Act Conceding that one of the
reasons for the discharge was McNeely's discussion of her
salary with Caranese in breach of the Respondent's "policy
of confidence," it, nevertheless, contends that McNeely's ter-
. mination was permissible since her activity did not contem-
18 The findings concerning this second Kuplis-Caranese conversation are
also based on the latter's undisputed testimony which I credit.
JEANNETTE CORPORATION
plate nor relate to group action but was designed solely to
secure an increase for herself and hence it did not amount to
protected concerted activity. In addition, the Respondent
urges that the discharge was lawful because it was motivated
by McNeely's willful misrepresentation to Caranese that she
had received a $100 increase in salary and by her misrep-
resentation to Vice President Mallory that she had been
promised an increase by Personnel Director Petti at the time
she was hired. I find, in agreement with the General Counsel,
that McNeely's termination violated Section 8(a)(1) of the
Act.
Section 7 of the Act guarantees to employees "the right to
... engage in ... concerted activities for the purpose of
... mutual aid or protection . . . ." To terminate an em-
ployee for exercising this right violates Section 8(a)(1) of the
Act.19 Even if the discharge is caused in part only by the
employee's protected concerted activities , it is similarly un-
lawful, despite the existence of good grounds for terminating
him.20 Of course, under the plain language of the Act, only
employee concerted activities are protected. To qualify as
concerted activity, as one court observed, it must be "engaged
in with the object of initiating or inducing or preparing for
group action or . . . [have] some relation to group action in
the interest of the employees. 1121 The same court also
pointed out that "preliminary discussions are [not] disquali-
fied as concerted activities merely because they have not
resulted in organized action or in positive steps toward pre-
senting demands."22 This must be so "inasmuch as almost
any concerted activity for mutual aid and protection has to
start with some kind of communication between individuals
[and] it would come very near to nullifying the rights of
organization and collective bargaining guaranteed by Section
7 of the Act if such communications are denied protection
because of lack of fruition."23 On the other hand, "in some
circumstances entirely individual action or speech is not con-
certed activity" and may amount to no more than an un-
protected personal gripe or complaint.24
Guided by these principles, I find that McNeely's discus-
sions with Groves and Caranese fall within the ambit of
concerted activity for mutual aid and protection safeguarded
by the Act. As found above, these were discussions in which
the three named employees aired their dissatisfaction, not
only with their own salaries but also with the low level of
clerical salaries generally prevailing at the Company's estab-
lishment about which other employees were similarly com-
plaining among themselves. Moreover, it is clear that, in
McNeely's conversations with Groves, McNeely also urged
Groves to speak to her supervisor, Plant Manager Louch,
about a raise for herself. Viewing the substance of McNeely's
19 N.L.R.B v. Washington Aluminum Company, Inc., 370 U S. 9,
16-17 (1962).
20 N.L R B. v Adam Loos Boiler Works Co., 435 F.2d 707 (C.A. 6, 1970),
J.P. Stevens & Co, Inc. N.LR.B, 380 F 2d 292, 300 (C A. 2, 1967), cert
denied 389 U.S. 1005 (1967).
21 Mushroom Transportation Company, Inc v. N.L.R.B., 330 F.2d 683,
685 (C.A 3, 1964), see also Signal Oil and Gas Co v. N.L.R.B, 390 F.2d
338, 342 (C A. 9, 1968), Hugh H. Wilson Corporation v NLR B., 414 F 2d
1345, 1354 (CA 3, 1969).
22 Mushroom Transportation, supra, 685.
23 Ibid.
24 Signal Oil, supra, 342, see also Hugh H. Wilson Corporation, supra,
1348
657
salary discussions , involving as they did a matter concededly
of legitimate concern to the clerical employees , I am per-
suaded that they were designed to do more than simply dis-
close McNeely's' intention to seek an increase in' her own
salary. Rather, I find that McNeely's discussions also reflect
the usual preliminary steps leading ultimately to group action
aimed at improving the salaries of other clerical employees,
as well . Indeed, at the hearing, when questioned by the Re-
spondent's counsel as to what she had attempted to accom-
plish by talking to Groves and Caranese concerning their
salaries, McNeely answered, "Getting better wage rates for
the clerical workers . . . [b]ecause other clerical workers at
Jeannette Corporation are paid on a very minimum scale."
Particularly apropos is the observation of the Fourth
Circuit" that "The activity of a single employee in enlisting
the support of his fellow employees for their mutual aid and
protection is as much `concerted activity' as is ordinary group
activity. The one seldom exists without the other." The fact
that McNeely subsequently asked her supervisor, Vice Presi-
dent Mallory, for an increase for herself or that she expressly
urged Groves to request a raise from her supervisor, Plant
Manager Louch, does not negate the concerted character of
her activity or militate against a finding that group action was
contemplated. This individual approach to obtain a wage
increase was necessitated by the fact that McNeely and
Groves were assigned as secretaries to company officials who
apparently controlled the salaries they were paid and had no
other clericals under their direct supervision.
In view of the foregoing, I find that McNeely was entitled
to statutory protection in engaging in the salary discussions
with employees Groves and Caranese and that her discharge
for such activity was violative of the Act.26 The Respondent,
nevertheless, argues that McNeely was vulnerable to dis-
charge because she had willfully misrepresented to Caranese
that she had received from Mallory a $100 raise and because
she misrepresented to Mallory that Petti had promised her an
increase when she was hired. However, as indicated above,
even if these were valid grounds for terminating McNeely,
her discharge, in part, for engaging in protected concerted
activity would still be violative of Section 8(a)(1) of the Act.
At any rate, apart from the fact that the other reasons ad-
25 Owens-Corning Fiberglas Corporation v. N.L.R B., 407 F 2d 1357, 1365
(C.A 4, 1969)
26 The cases relied on by the Respondent for a contrary result are factually
distinguishable Thus, for example , in Dennis Maietta & Frank Maietta a
partnership, d/b/a Maietta Trucking Company, 194 NLRB 794 (1971), the
Board found no violation in the discharge of an employee who requested a
wage increase for himself and not, as in the present case, for engaging in
discussions preliminary to group action In Plastic Composites Corp., 210
NLRB 728 (1974), no violation was found in the discharge of an employee
for falsely informing fellow employees in a casual conversation having no
group action objective that higher rates were paid at his former employer's
plant . In N.LR.B v Office Towel Supply Co, Inc, 201 F.2d 838 (C A 2,
1953), the court held that an employee's remark that this was "a hell of place
to work" was mere griping and not a form of concerted activity whose
existence was known to the company and her discharge was therefore per-
missible . In Indiana Gear Works, a Division of the Buehlor Corporation v
N.L R.B. 371 F 2d 273 (C A 7, 1967), the court upheld the discharge of an
employee who prepared and posted cartoons ridiculing the company 's presi-
dent, finding no evidence that the employee 's conduct was for the purpose
of inducing group action . In N.L.R.B. v Buddies Supermarkets, Inc., 481
F 2d 714 (C.A. 5, 1973), the court held that the discharge was for individual
griping and not for concerted activities and therefore was similarly permissi-
ble
658 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
vanced by the Respondent were not even given to McNeely
at the time of her discharge, the reasons themselves are with-
out evidentiary support. As previously found on the basis of
uncont-radicted testimony, McNeely told Caranese only that
she intended to ask Mallory for a $100 increase and not that
she had receivedone and it was this intention of McNeely that
was conveyed to Packaging Director Kuplis. With respect to
McNeely's purported misrepresentation the Petti had prom-
ised her an increase, the evidence indicates that McNeely
simply informed Mallory that she was told by Petti that she
would be considered for a raise at some indefinite time in the
future if she proved her ability to perform her job. I fail to
perceive any willful misrepresentation in the latter statement
or anything so reprehensible in McNeely's conduct in dis-
cussing her salary with employees as to warrant depriving her
of statutory protection. By the same token, I find that
McNeely's purported willful misrepresentations were, at best,
pretexts for her discharge.
Accordingly, it is concluded that McNeely's discharge vi-
olated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Cheryl A. McNeely for engaging in pro-
tected concerted activities for mutual aid and protection, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. By maintaining in effect an unqualified rule or policy
prohibiting employees from discussing wage rates among
themselves, the Respondent has imposed an unlawful impedi-
ment and restraint upon employees' right to engage in con-
certed activity for mutual aid and protection guaranteed by
Section 7 of the Act and thereby is in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommended:
ORDER27
III THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
like and related conduct and that it take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent unlawfully dis-
charged employee McNeely because of her protected con-
certed activity. To remedy this unfair labor practice, it is
recommended that the Respondent offer McNeely immediate
and- full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have suffered
by reason of her unlawful discharge by payment to her of a
sum of money equal to that which she normally would have
earned from the date of her discharge to the date of the offer
of reinstatement, less her net earnings during the said period.
Backpay shall be computed with interest on a quarterly basis
in the manner prescribed by the Board in F W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). To facilitate the computation,
as well as to clarify the named employee's right to reinstate-
ment,' the Respondent shall make available to the Board,
upon request, payroll and other records necessary and appro-
priate for such purposes.
Having also found that the Respondent has maintained in
effect an unlawful rule or policy prohibiting employees from
discussing wage rates among themselves, I recommend that
the Respondent be ordered to rescind and abrogate this rule
or policy and notify its employees that it has taken such
action and that henceforth they may engage in such discus-
sions on the Respondent's premises subject to limitations
permissible under the Act. The posting of an appropriate
notice is also recommended.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
The Respondent, Jeannette Corporation, Jeannette, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining employees for
engaging in protected concerted activity for mutual aid and
protection with respect to wages, hours, or other terms and
conditions of employment.
(b) Maintaining in effect or enforcing any unqualified rule
or policy which prohibits employees from discussing salaries
or wage rates among themselves.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized by Section 8(a)(3) of the Act. -
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Rescind and abrogate- its unqualified rule or policy
prohibiting employees from discussing wage rates among
themselves and notify its employees that it has taken such
action and that they may henceforth engage- in such discus-
sions on its premises subject to limitations permissible under
the Act.
(b) Offer Cheryl A. McNeely immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her whole
27 In the event no exceptions are filed as provided by Sec 102.46 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.
JEANNETTE CORPORATION 659
for any loss of earnings she may have suffered by reason of
her unlawful discharge, in the manner set forth in the section
of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all -other records necessary and
useful in analyzing the amount of backpay due and the right
to reinstatement and employment under the terms of this
recommended Order.
(d) Post on its premises in Jeannette , Pennsylvania, the
attached notice marked"Appendix."28 Copies of said no-
tice, on forms provided by the Regional Director for Region
6, after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, where no-
tices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
29 In the event that 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 discipline em-
ployees for engaging in protected concerted activities for
mutual aid and protection with respect to wages, hours,
or other terms and conditions of employment.
WE WILL NOT maintain in effect or enforce our un-
qualified rule or policy prohibiting employees from dis-
cussing wage rates among themselves.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing , to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities except to the extent that such right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
WE WILL rescind and abrogate our unqualified rule or
policy prohibiting employees from discussing wage rates
among themselves and we will notify them that we have
taken such action and that henceforth they may engage
in such discussions on our premises subject to limitations
permissible under the National Labor Relations Act.
WE WILL offer Cheryl A. McNeely immediate and full
reinstatement to her former job, or, if that job no'longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges,
and make her whole for any loss of earnings suffered by
reason of her unlawful discharge.
JEANNETTE CORPORATION