Siltec Corp.

National Labor Relations Board - Board Decisions

Apr 4, 1975

217 N.L.R.B. 282 (N.L.R.B. 1975)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Siltec Corporation and United Electrical, Radio and
Machine Workers of America , Local 1412. Case
20-CA-9026
April 4, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On November 27, 1974, Administrative Law Judge
David G. Heilbrun issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, counsel for the General Counsel
filed exceptions and a supporting brief, and Respond-
ent filed an answering brief to the General Counsel's
exceptions and 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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith, and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge's find-
ing that employee Brawthen's discharge was unrelated
to his union activities. For that reason we adopt the
Administrative Law Judge's conclusion that the com-
plaint should be dismissed.'
We do not adopt, however, all of the Administrative
Law Judge's rationale for reaching this conclusion be-
cause we find, in agreement with Respondent's excep-
tions, that the Administrative Law Judge exceeded his
discretion by substituting his own standard for that of
Respondent in determining what would constitute
good and sufficient grounds for Brawthen's discharge.
The Respondent asserted as its reasons for discharg-
ing Brawthen his declining job performance and inat-
tentiveness to his duties. On this issue the Administra-
tive Law Judge found that Brawthen had failed to use
his safety equipment, was late for work "during the
critical February-March 1974 period," was away from
his work station "an unprecedented amount of time,"
prepared incomplete records, disturbed other em-
ployees by talking to them during their worktime, and
had changed his demeanor in his contacts with his
superiors. Nevertheless, the Administrative Law Judge
concluded that these facts were not sufficient to war-
rant discharge and accordingly found that Brawthen
was not discharged on this basis. In making such a
i Both parties have filed exceptions only with respect to the Adimmstra-
tive Law Judge's findings concerning employee Brawthen.
judgment, we believe that the Administrative Law
Judge improperly substituted his own standard for Re-
spondent's rightful exercise of discretion in determin-
ing what constituted sufficient cause for discharge. It
is this improper substitution of judgment and the Ad-
ministrative Law Judge's findings thereon that we can-
not adopt.
Having alleged a violation of Section 8(a)(1) and (3)
of the Act in the Respondent's discharge of Brawthen,
the General Counsel had the burden of proving em-
ployer knowledge of the union . activity and union
animus as the motivation for the discharge. The Gen-
eral Counsel failed to meet this burden. Indeed, the
Administrative Law Judge found, a finding which we
adopt, that evidence of union animus on the part of the
Respondent was "totally lacking." Having made this
finding, a violation could not be found under the theory
of the complaint and the Administrative Law Judge
should have dismissed the complaint without further
inquiry into the matter.2
We also find merit in Respondent's exceptions to the
Administrative Law Judge's findings on the OSHA3
issue. While we are mindful that an Administrative
Law Judge must address himself to all issues which are
fully litigated at trial,4 such is not the situation in the
instant case. Brawthen's OSHA participation as the
motivation for his discharge by Respondent was not
alleged in the complaint. Additionally, counsel for the
General Counsel neither sought to amend the com-
plaint to allege a violation on this basis nor contended
in his brief to the Administrative Law Judge that the
incident constituted a violation of the Act. In fact,
evidence on this issue was not even adduced until after
counsel for the General Counsel had rested his case in
chief and Respondent had put in its defense. It was not
until counsel for the General Counsel was putting on
his rebuttal evidence in an attempt to explain some of
Brawthen's absences from his work station that evi-
dence of his OSHA activity and the Respondent's al-
leged reaction thereto was introduced. Thus, the Re-
spondent was never put on notice with respect to any
violation of this nature and was not given an oppor-
tunity to rebut this evidence or to present arguments on
any inferences that could be drawn from its conduct
relative thereto. Indeed, the evidence was originally
admitted, over Respondent's objection, for a very lim-
ited background purpose. In these circumstances, as
the Administrative Law Judge correctly concluded, the
issue was not fully litigated; therefore, any findings on
this issue would be a clear violation of due process.
Accordingly, we reject as improper the Administrative
2 CPEIndustries, Ltd., 202 NLRB 782 (1973), DSL Mfg., Inc, 202 NLRB
970 (1973)
3 Occupational Safety and Health Act.
4 Atlantic Coast Fisheries, 183 NLRB 921 (1970)
217 NLRB No. 51
SILTEC CORPORATION
Law Judge's inference that Brawthen's discharge may
have resulted from his involvement in OSHA matters
and, with respect to this issue, we adopt only the Ad-
ministrative Law Judge's finding that the matter was
not properly before him.'
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
the complaint be, and it hereby is, dismissed in its
entirety.
Stouffer Restaurant and Inn Corporation, 210 NLRB 336 (1974).
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at San Francisco, California, on July 15,16,17
and 18, 1974, based upon charges filed March 12 and
amended April 3, 1974, and complaint issued May 14, 1974,
which was amended June 14, 1974, and again orally at com-
mencement of hearing. The amended complaint alleges that
Siltec Corporation, called Respondent, violated Section
8(a)(1) and (3) of the Act by interrogating employees con-
cerning union activities, threatening employees with reprisals
for engaging in union activities, creating an impression of
surveillance of union activities, and discharging employees
William McCartney and David Brawthen because of their
membership in or activities on behalf of United Electrical,
Radio and Machine Workers of America, Local 1412, called
the Union, or because they engaged in other concerted activi-
ties, after first issuing an assertedly discriminatory warning
nol ice to McCartney only.
Upon the entire record in this case, including my observa-
tion of the witnesses, and upon consideration of briefs filed
by General Counsel and Respondent, I make the following:
FINDINGS OF FACT
1[ THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a corporation located in Menlo Park, Cali-
fornia, engages in the manufacture and sale of crystal for use
in electronic equipment. It annually purchases goods valued
in excess of $50,000 for use in its business operations and
receives these goods directly from suppliers located outside
the State of California. Further, it annually sells and ships
from its Menlo Park, California, facility directly to customers
located outside the State of California products valued in
excess of $50,000. I find, as Respondent admits, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
283
Since founding in January 1969, Respondent's work force
had grown to 290 persons by March 1974. Operations are
carried out through departments housed in three separate
buildings. Respondent's primary business is the production of
single crystal silicon substrate wafers, although it also manu-
factures basic equipment used in making crystal. McCartney,
most recently employed from January to March 8, 1974, was
a production grower; Brawthen, employed from June 1971 to
March 8, 1974, was last a research and development (R & D)
technician with primary duties relating to experimental
growth of crystal.
The Union commenced organizing activities at the facility
in summer 1973. In July and September of that year separate
unfair labor practice charges were filed against Respondent
but were both dismissed following investigation. Respondent
girded for further organizing activities by obtaining, and dis-
seminating among its supervisors, guidance as to permissible
and impermissible conduct relative to union activities by and
on behalf of employees. Further, an experienced industrial
relations manager was employed and given authority to ap-
prove all terminations. Overt union activities increased in
early 1974' with employees handing out organizing litera-
ture at Respondent's premises and wearing union buttons. A
list of 22 names identified as the partial "UE in-plant organiz-
ing committee" was sent to Robert Lorenzini, Respondent's
president, by letter dated February 7. McCartney and Braw-
then were each named in this letter.
McCartney had 16 months prior employment with Re-
spondent ending June 1973 in connection with distracting
personal problems. During this earlier employment he
worked as laboratory technician and in supervisory capaci-
ties. McCartney testified that following reemployment in
January he regularly wore a "Unity" button while at work
and added a "UE" button several days before being dis-
charged. McCartney recalled telephoning day-shift Growing
Department Foreman James Agar on February 1 to report
being sick and unable to work a scheduled 12 hours that day.
Further, he recalled that illness forced him to leave work on
February 22, after completing 1 hour of the shift. At 3:15
p.m. on March 5, Agar handed McCartney a "written-ver-
bal" warning for the two incidents of absenteeism. The warn-
ing embodied an extension of probationary period to April
14, having the further effect of delaying any wage rate in-
crease until that date. McCartney protested this as unfair and
over the course of approximately 2 hours thereafter spoke, or
attempted to speak, with Growing Department General
Foreman Dwayne (Dewey) Reed, Industrial Relations
Manager John Richey, Production Manager Chuck Sexton,
and Vice President of Operations Larry Jo. Reed's response
was to display a blue folder to McCartney claiming it con-
tained written company policies including one concerning
"two absences [from work] within 20 days." He declined
comment on how it could apply when a full 20 calendar days
separated the two absences. Richey claimed flatly that "com-
pany policy" governed the situation. McCartney testified that
All dates and named months hereafter are in 1974, -unless indicated
otherwise
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after his essentially unsuccessful efforts to obtain reconsidera-
tion on March 5 he decided to take no further action. Never-
theless, at the end of the shift on March 8 Reed escorted
McCartney to the office of Richey where he was terminated
for failing to meet the requirements of a probationary em-
ployee.
Brawthen had gained experience as a production grower
before becoming an engineering technician at some point
prior to June 1973. He first manifested interest in the Union
around November 1973, and subsequently engaged in activi-
ties supportive of its cause. His first overt action occurred
February 5 during a meeting with Lorenzini. Brawthen had
requested this to "announce" being "involved" in the organ-
izing effort. Lorenzini voiced opposition to a union express-
ing the hope Brawthen had thought carefully of the "ramifi-
cations" of his involvement which, "perhaps [constituted]
walking down the wrong path." The conversation maintained
a casual tone as Brawthen outlined unfavorable conditions of
employment while Lorenzini urged that Richey be ap-
proached by employees on matters seen as problems. On
March 5 Process Engineering Manager Andy Ramans, Braw-
then's supervisor, sharply criticized him for claimed chronic
absence from his work area and on March 8 Richey, in the
presence of Ramans, terminated Brawthen for inattentive-
ness.
Reed testified that McCartney's February absences con-
stituted an excessive amount under Respondent's established
policy. As written this policy defines "excessive" absence to
be "more than one occurrence ... in a 4 week period."
Aware of this but mindful of McCartney's "excellent" pro-
duction performance, Reed reflected over several days when
Agar was absent and then concluded that issuance of a warn-
ing was appropriate. Its delivery was delegated to Agar on
March 5. Reed testified that the following morning he was
spoken to by an "upset, excited" McCartney who remained
in a state of agitation over the warning the balance of that
week. On succeeding days McCartney repeatedly attempted
to converse with others of the management hierarchy and
appeared not to accept what was meant by Reed as rehabilita-
tive. Reed recalled that McCartney's displeasure persisted
into March 8. The circumstances impressed Reed as warrant-
ing termination ; he decided on this course, and it was effected
in Richey's office.'
Ramans decided the discharge of Brawthen, testifying this
action appeared necessary to protect Respondent's vital need
for technological progress. Ramans had vacationed over the
period February 9-18. Immediately after returning he was
informed Brawthen was displaying increasing unreliability
relative to quality of his work and attention to duty. Primary
sources of information were Richey, Reed, and Process Engi-
neer Don Blair. Richey reported direct and indirect knowl-
edge of Brawthen being a disturbing influence in work areas
unrelated to his department's function as well as derelict
respecting safety practices. Reed asked Ramans to discourage
Brawthen's unwanted presence in the growing department.
Blair, a nonsupervisory member of the process engineering
department, informed Ramans at about the same time of an
unsatisfactory change in Brawthen's experimental accom-
2 The discharge episode was laced with profanity and discord among its
key participants, the details of which lack significance
plishments, recording of laboratory data, and general re-
sourcefulness. Ramans testified that within a day or two of
returning from vacation he took Brawthen to lunch at a
nearby restaurant. He recalled the luncheon episode opened
with social conversation, moved to discussion covering cer-
tain previous remarks by Brawthen claiming managerial
unresponsiveness, and finally addressed the subject of Braw-
then's employment future with Respondent. Ramans testified
that he alluded to a specific report of Brawthen once failing
to wear protective clothing while etching, to complaints,that
had arisen while Ramans was vacationing concerning the
attention Brawthen gave to his job, and that he followed with
a solicitous sifting of specific types of prospective endeavor
offered through,a future with Respondent. Ramans denied
mentioning the Union or union activities at the luncheon.
Further, Ramans testified that during the balance of Febru-
ary and early days of March he continued to receive reports
from supervisors that Brawthen was bothering employees of
their area, that Blair expressed continuing dissatisfaction
with Brawthen's performance causing him (Blair) to spend
increasingly more time monitoring projects , and that Ramans
himself entreated Brawthen on several occasions to work
faster, better, or more reliably. On March 5 Brawthen was an
hour late in the morning, could not be found by Blair later,
and had been asked by Reed to leave a work area. Ramans
testified that he discussed the growing accumulation of spe-
cifics with Richey. He recalled their consensus was to have -
a discussion with Brawthen relative to whether he would
resume responsible fulfillment of his duties. Ramans recalled
speaking critically with Brawthen that day and receiving only
an unsatisfactory excuse for the morning lateness plus a chal-
lenging stare as to other complaints. Raman concludes his
version by fixing March 6 as the date matters culminated. On
that day another complaint was made to him by an "excited"
Reed reporting Brawthen to be "in my area bothering peo-
ple." Ramans immediately searched for Brawthen but he was
not found in the engineering laboratory nor did he respond
to a page. Ramans promptly spoke with Richey in terms of
an apparent lack of response to warning and Brawthen's
known identification as "one of the union organizers at that
time." A joint decision was reached that lack of performance
warranted termination and March 8 was selected as Braw-
theri's final day of employment. The discharge episode oc-
curred adjacent to Brawthen's normal work area, the details
of which lack significance.
Respecting paragraphs VI(a) and (b) of the amended com-
plaint, McCartney testified that on February 18 Foreman C.
L. Roberts noticed the union button he was wearing and
spoke with him stating that involvement with the Union was
"not a good thing to be doing" while McCartney was still
probationary.' I credit the denial of Roberts that a conver-
3 Agar, Blair, employee Nadene Poppe, Reed, Richey, Roberts, and em-
ployee Donna Sample uniformly deny seeing a union button worn by
McCartney while employees Ian Cuthbertson, Cathy Jeffords, and Susan
Trundle recall he did Since the letter of February 7 named McCartney the
entire subject of button wearing becomes significant primarily for credibility
purposes. However, the mere wearing of union insignia does not mean the
wearer cannot selectively focus attention to it by bodily movements making
discernment easy or difficult I accept as fact that McCartney wore union
buttons but generally discredit the balance of his testimony on grounds it
appears contrived and lacks plausibility. Tr. 115, 1 19, is corrected by
substituting "probationary" for "provisionary."
SILTEC CORPORATION 285
sati on of such nature occurred.
Respecting paragraph VI(c) of the amended complaint,
Brawthen testified that on February 19 Jo approached him at
his workplace and initiated discussion about a rumor that
employee Fred Cagle intended to obtain a gun . Strident con-
versation ensued between them continuously for over an
hour. Employee William Roth overheard portions but could
only remember "generalities." Brawthen's version is that Jo
extracted concessions from him that certain statements in
union literature were misleading or erroneous and stated
Brawthen 's continued involvement in the union campaign
constituted "serious trouble" or "serious business" from
which "bitter" feelings could anse. Jo denies uttering the
words "serious trouble" or "bitter" and I credit his version
of the discussion."
Paragraphs VI(d) and (e) of the amended complaint relate
to the luncheon of Ramans and Brawthen in late February to
the extent that matters there discussed were an outgrowth of
departmental meetings held by Ramans on January 28 and
February 8. In the first of these, Ramans had referred to
existing union activity and set forth Respondent 's views and
current benefits . The second meeting had commenced with a
discussion of departmental scheduling but soon shifted to the
subject of the union organizing campaign . In a course of
discussion led by Ramans and participated in by departmen-
tal engineers , the leadership and objectives of the Union were
called into question . Brawthen volunteered to those present
his role as one of the key employee organizers. This second
meeting occurred on Ramans ' last day at the plant before
commencing his vacation . Brawthen testified that during the
course of the luncheon Ramans seemed perplexed by his
involvement with the Union , stating he would be "better off"
taking problems to supervision and that pursuit of union
organizing was "not helping" his career.'
Respecting paragraph VI(f) of the amended complaint,
Fred Cagle , at the time a polishing technician named on the
in-plant organizing committee letter , testified that on Febru-
ary 20 he conversed with Jo in the latter 's office with Facili-
ties Manager Paul Savin also present . Cagle had requested the
meeting to dispel a rumor he planned to obtain a gun . Cagle's
version of this meeting is that after clearing up the subject of
a gun, which he disclaimed intention to utilize in any employ-
ment connection , Jo then raised the subject of union activities
stating that individual employee problems should be brought
to his office , that in a prior campaign employees had walked
4 Birawthen believed this discussion happened February 19, on the same
day he first personally distributed union literature (Tr. 24, 36) I find it
actually occurred February 12 , as testified by Jo, based on the reliability of
his testimony coupled with clarifying evidence of record establishing Resp
Exh. 9 as a union leaflet distributed by Brawthen on that date (Tr. 176, 185).
Surfacing of the gun rumor on February 12 seems only a coincidence which
stimulated immediate inquiry by Jo and, as a matter of conversational now,
permitted drift into the contents of union literature distributed as late as that
very morning (and to treat other peripheral matters recalled by both partici-
pants). Brawthen was a natural choice for Jo's initial purpose in seeking
intelligent dialogue on the ominous rumor earned to him that morning
5 These utterances are quoted from Brawthen 's credited version of the
episode occurring on or about February 20 . Ramans testified that luncheon
discussion was confined to his own recently completed vacation , assertions
that management had "terrorized" employees , safety matters at the plant,
Brawthen 's potential career choices , and reports that he had been unneces-
sanly away from his own work area I generally discredit Ramans ' version
of the episode.
out and been discharged , that unionization would lead to a
possible strike of employees and probable loss of benefits, that
Cagle could advance if he wanted to, and that he wished
Cagle would prevail on fellow employees not to join the
Union . Jo, who places this episode on February 13, concedes
having knowledge of Cagle's apparent support for the Union
at that time but denies any reference to a prior walkout, mass
discharge of employees , prediction that negotiations would
start "from scratch ," or that he solicited Cagle's assistance to
induce employees away from the Union . I am impressed with
Jo's credibility generally , and in regard to this episode find
that discussion was confined to the gun rumor , but not to
other matters described by Cagle. Regarding paragraphs
VI(c) and (f) of the amended complaint , Jo testified in a
manner remarkably forthright , unequivocal , and precise. His
recall of chronology , context, and utterance was thorough
and candid . Cagle's testimony had opposite quality in most
salient regards and I consider it valueless . The consistently
impressive characteristics of Jo's testimony (error in estimat-
ing the date of G.C . Exh. 2 noted) also influence me to credit
him over Brawthen where disparity appears.
Respecting paragraphs VI(g) and (h) of the amended com-
plaint, Frances Perez testified that on March 5, while em-
ployed as a leadgirl in the polishing department , General
Foreman Joe Allen called her into his office to discuss a
transfer she may have desired . She recalled that Allen stated
the transfer would look bad on her record , inquired whether
she was deeply involved with the Union, and, upon hearing
her affirmative response, said this was a disappointment to
her foreman as he (the foreman) felt she was procompany
until learning of her interest in the Union . Allen testified that
he conversed with Perez in early March about interdepart-
mental transfer . He knew at the time she was named on the
in-plant organizing committee letter and he denied asking her
of union involvement or referring to her foreman other than
concerning operational matters. Allen's version of this con-
versation was thoroughly convincing and I fully credit his
testimony.
Perez functioned as a lead girl on the first shift with duties
associated to approximately 12 job stations of the polishing
department . Her specific tasks were to troubleshoot in the
area by anticipating workflow problems , monitor operator
reliefs and shift employees back and forth to maintain pro-
duction flow. Allen testified she was instrumental in training
new employees and that he solicited her opinion concerning
conversion of probationary employees to permanent status.
Perez did not participate in supervisory meetings nor possess
her own copy of Respondent 's written policies . She testified
her grant of authority was only that of Basking employees to
accept reassignment according to apparent and momentary
needs of the department . To the extent Respondent seeks to
attach supervisory status to Perez at the time of the March
5 discussion with Allen , I am not convinced it has met the
necessary burden of proof in this regard , as a degree of in-
dependent judgment less than that defined and intended in
Section 2(11) of the Act has been shown from the total evi-
dence . Accordingly, I do not find her to have been a supervi-
sor as defined in the Act at that point in time. I am influenced
in this conclusion by the fact that during March the polishing
department's first shift had only approximately , 12 employees
performing repetitive duties at well-defined work stations un-
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der Foreman Bob Buschini and to find Perez a supervisor
would create a supervisory ratio unusually low for such an
operation. Further, the phraseology of "Lead Girl Duties"
(Resp. Exh. 25) fails to attach a truly authoritative role to the
position.
Evaluation of this case should note the unique nature of
Respondent's operations and the form of its relationship with
employees. This fast-growing company is part of a new and
burgeoning industry.6 As often typically the case, manage-
ment personnel were alternately attracted to informal deal-
ings with employees calling up notions of loyal common pur-
pose and, on the other hand, to use of structured employment
regulations more suitable to the ever larger work force. This
dichotomy is seen in evidence concerning both McCartney
and Brawthen. In the former's case his original supervisor,
Ramans, showed sympathetic concern at the time of termina-
tion in June 1973, and although unwilling to consider
McCartney for reentry into his small department did refer
him to other plant opportunity. Reed, the hiring supervisor,
extended early encouragement and for a while blithely fielded
McCartney's rancorous complaints about pay rate. Treat-
ment of Brawthen reveals he was considered a valued em-
ployee. He functioned in Respondent's small R & D opera-
tion where a single furnace was utilized for prototype crystal
growing procedures necessary to provide technical justifica-
tion for instituting master production programs. The work
environment was characterized by informal relationships
coordinating Brawthen's own workday with that of Blair,
other engineers, and night-shift technician Helen Clem. Con-
siderable technical competence was acknowledged, a gener-
ally flexible set of work tasks was present with considerable
individual,discretion as to when and how to carry them out,
and the several field service trips would only have been as-
signed to one in whom high confidence reposed. Lorenzini
readily consented to meet with Brawthen concerning what
turned out as the latter's dismay over occurrences in the plant
and Richey was designated to follow up with a more detailed
explanation intended to placate this concern. However,
Brawthen rejected Richey's facts, calling him a mere "tool."
Generally Brawthen's resentment about claimed arbitrariness
towards employees in the past was never disspelled and this
attitude affected the several factors peaking during February
and March. The first and most significant of these was height-
ened union organizing with open employee participation in
terms of union literature being distributed and union insignia
being worn. Second was the testing of Respondent's claimed
intention of reacting permissibly to the campaign. A third
exacerbating subject was-the rumor relative to whether Cagle
intended to obtain and possess a gun for any eventuality that
might relate to the organizing campaign. Admittedly Cagle
was known as the prime union adherent among employees.
Individuals concerned reacted emotionally to this rumor and
while the point was resolved during a short span of time in
February, it did reveal touchiness both by key union adher-
ents on the one hand and management personnel on the
other. Fourth was increased safety awareness, both because
6 Expanding application of Respondent's products in electronics tech-
nology has been the subject of both technical and popular comment See
"New Ways to Exploit Single Crystals," Materials Engineering, Vol 77, No.
6, p. 24, June 1973, and "Why They're Integrating Into Integrated Circuits,"
Business Week, p 55, (September 28, 1974).
of specific incidents and a series of statutory safety and health
inspections (Tr. 65, 304, 539, 540). These several factors had
a subtle bearing on Brawthen's performance in a rather am-
bulatory job, compounded by a short vacation absence of his
regular supervisor and the simultaneous institution of new
experimentation relative to fast shoulder crystal growth.
In terms of these overall factors there is little to look to in
McCartney's case except the mechanics of his short period of
probationary reemployment, including voluntary overtime
work on occasion, but also including the noted absences. He
had but a tenuous hold on employment in the first instance
as I credit Reed's description of having initially cautioned
McCartney on the subject of job attendance. His first absence
followed 3 consecutive 12-hour workdays and his second was
for claimed diarrhea, certainly a condition prohibiting effec-
tive continuation at a work station. While extenuating cir-
cumstance might be argued as to both absences, such is im-
material under Respondent's established written attendance
policy which addresses the need to have a person reliably and
consistently at work. I find this policy was in effect at the time
and that it gauged excessiveness by a 4-week span of time, not
the lesser 20-day span which McCartney asserts was men-
tioned. Further, his claim of having given--notification of
absence on February 1 was credibly contradicted by Agar
(Tr. 454). A showing has been made that involuntary termi-
nations are not uncommon; 28 occurring during the last 4
months of 1973, 3 in January, 3 in February, 5(other than
those in controversy) in March and 2 in April.7 Of this total
12 (other than McCartney) were during probation and an
additional 22 were based on absenteeism. It is significant that
Respondent's literature to employees was temperate8 and
evidence of union animus not presented by the evidence as a
whole, nor certainly as to McCartney. His union or concerted
activity was minimal and others of similar involvement re-
mained employed. McCartney's reaction to the written verbal
warning of March 5 justified managerial exasperation to the
point that Respondent chose to terminate him.' I believe
Reed testified credibly as being without discriminatory mo-
tive in his sequence of decision.
Respecting Brawthen's case it is true that on occasion he
carelessly or petulantly disdained use of safety equipment. He
was late for work during the critical February-March 1974
period or away from his work station an unprecedented
amount of time. Crystal growing run sheets were incomplete
in numerous instances of his own initial or continued growing
attempts. He did converse with McCartney or other em-
ployees while they were performing work. It is even accepted
that his mood changed relative to contact and communica-
tion with Ramans and Blair . The persuasive conclusion, how-
ever, is that Respondent's act of terminating Brawthen was
based on derelictions so marginal or explainable as to require
7 Including Cagle whose name did not appear on Resp. Exh. 23 but who
in fact was discharged April 2 (Tr. 505).
S Resp. Exh. 21 and G C. Exh 2, identified as to time of distribution as
February 1 and March 8, respectively.
9 I credit testimony of Richey and Carleton to the effect that-McCartney
repeatedly visited Richey's office on March 6 and March 7. McCartney's
denial of having done so is not persuasive nor consonant with his seemingly
impulsive nature This lack of credence also applies to his version of the
hiring interview with Reed The absence of pretextual characteristics here
contrasts with evaluation made in Electro-Netic Products Corporation, 183
NLRB 482 (1970)
SILTEC CORPORATION 287
the inference that it acted with other motivation. It is simply
implausible upon sifting the total evidence to believe Re-
spondent would summarily discharge this valuable employee
who, notwithstanding his substantial participation in union
organizing , and cool, clipped relations with supervision,
maintained relatively complete dedication to duties to and
including his last day of employment.10
The degree to which crystal growing run sheets, as comp-
leted for the R & D furnace, show deficiency on Brawthen's
part depends largely on Blair's testimony. I am not impressed
with the overall reliability of his testimony particularly after
taking into account his"emphatic statement that process engi-
neering technicians were not in the growing department sub-
sequent to December 1973, followed by retraction of this
testimony because of subsequent recollection that for a con-
tinuous 3-week period in January and February they were
exclusively so engaged (Tr. 303, 366). Further, he is con-
tradicted by the highly credible Clem as to whether alltechni-
clans were told to complete crystal-growing run sheets for the
R & D furnace (Tr. 359, 599). Related to this is the fact that
crystal growing run sheets were not, in their totality for the
January-March period put in evidence, generally as complete
as Blair contended was necessary. Clean herself failed to show
assertedly critical starting times for growing attempts on Feb-
ruary 13, 14, 22 and March 4, 6, and 8. I am satisfied that,
as testified by Brawthen, oral communication was a substan-
tial factor in development of experimental growing processes
even though a more thorough job might have been done in
desired written entries. The more convincing view of crystal
growing run sheets is that they supplemented the experimen-
tal process and had fluctuating significance depending on
precisely what process or innovation was being
attempted."
Further, it may be conceded that Brawthen was, during the
latter portion of his employment, away from his work station
more-than normal. This does not negate that he could have
chosen the cafeteria of Building 5 to use on his breaks, that
heater inspection duties might have been required of him in
the equipment manufacturing area and that employees of that
department did not necessarily refrain from consulting with
engineering department personnel (Tr. 701). Neither does it
negate the necessity of Brawthen being in several areas of
Building 2 or that he might perceive his proper role to assist
employee's of the growing department who posed work inqui-
ries to him (Tr. 293, 568). Thus, I can accept testimony that
Brawthen was requested to leave plant areas by certain super-
visors, that on other occasions he left before being spoken to,
that on still other occasions complaints were made of his
presence, that an "0" ring incident represented fault on his
part, and that Brawthen was less civil than before and more
likely to omit technical data on daily crystal growing run
sheets. On balance, he is still shown to have maintained a key
role in the'experimental crystal growth program, dovetailing
10 Brawthen's testimony was uncontradicted that on March 8 he reacted
to an unexpected power loss on the experimental furnace by prompt
manipulation of manual controls so as to maintain crystal structure growth.
While this single incident would not be sufficient to cure proven inattentive-
ness justifying an earlier, yet unexecuted, decision to terminate him, it does
tend to impugn Respondent's basic defense that an aura of inattentiveness
was consistently present.
1 i The formality of the sheets is also compromised by seeing rambunctious
notations such as "UFO" and "BLAH!"
his work cooperatively with that of fellow technicians and
engineers . My evaluation adopts testimony that empirical
credit for new fast shoulder growing was shared by Clem and
Brawthen, as the latter's description of maintaining crystal
growth on February 25 (Resp. Exh. 16(z)) was essentially
uncontradicted. Basically experimental crystal growth con-
stitutes an uncertain process, particularly with program vari-
ations established as to crystal diameter, seed lift decrease,
and shoulder shape.12
I conclude Brawthen was not discharged for inattentive-
ness but for another reason completely unassociated with his
union activities or any other concerted activities properly
within the scope of this proceeding. Ordinarily, employer
concealment of true reasons for discharge are to mask an
unlawful one. In such instance, a course of reasoning to some
unlawful motive is proper when, as in Shattuck Denn Mining
Corp., "the surrounding facts tend to reinforce that
inference."" Typically, the "surrounding facts" demon-
strate a union animus underlying unlawfully discriminatory
action . See Padre Dodge, 205 NLRB 252 (1973). However, in
this case evidence of employer animus is totally lacking."
Respondent parried the organizing effort with permissible
literature of its own and allowable expression of views by
supervisors, ordinarily reacting to, not initiating, the subject.
Roberts, Jo, and Allen have not been shown to be the perpe-
trators of coercive interrogation, threats of reprisal, or an
impression of surveillance. The luncheon discussion between
Brawthen and Ramans is the only instance of pure initiation
of the subject of union activities by any supervisor. The inci-
dent was not the -first time these two had spoken of Braw-
then's career potential and its essential tone, from Brawthen's
credited version, was more pleading than threatening in na-
ture. While Ramans did not hide his dismay at Brawthen's
involvement with the Union, the raising of doubt as to
whether it should be pursued falls short of implying jeopardy
to his employment future.15 Brawthen had openly exhibited
his union affiliation. The allegation that an impression of
surveillance touched him is unsupported. Inquiry by Ramans
was uncoercive in nature and the prospect of reprisal not
reasonably inferrable from the circumstances under which
remarks were exchanged. Other background evidence of the
Lorenzini-Brawthen conversation, remarks attributed to
Foreman Joe Desamone and a November 1973 conversation
between Richey and Trundle," does not, singly or collec-
12 The technically unpredictable nature of crystal growth and extent of its
qualitative integrity is illustrated in an abstract of the article "Effects of
Grown-in and Process-induced Defects in Single Crystal Silicone," Journal
of the Electro-chemical Society, Vol 119, No. 2, p. 225, (February 1972).
13 362 F.2d 466, 470 (C.A. 9, 1966), enfg. 151 NLRB 1328 (1965).
14 I give no weight to testimony of Respondent's claimed determination
to avoid commission of unfair labor practices or of Richey's extensive indus-
trial relations background An objective test grounded in actual evidence
must measure animus or lack thereof, not subjective intentions.
15 Cf. Southland Corporation, 208 NLRB 714 (1974), in which overall
circumstances gave a contrary import to the expression "messing around"
(with a union).
16 I credit Trundle's testimony concerning this conversation and discredit
Richey's denial that it occurred. Trundle was in Richey's office seeking a
pay raise and had remarked inquiringly whether having a union would
improve basic wage rates. In response, Richey probed whether she or her
acquaintance Cagle favored the Union Considering its remoteness in time
to significant events of the case and the fact Trundle initiated the subject
of unionism for discussion, I find this episode has an inconsequential bearing
on the issue of animus. This finding is made notwithstanding Respondent's
Continued
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively, establish unlawful motivation.
I am satisfied the key to this case lies in'the pervasive
credibility present in Brawthen's testimony concerning the
eventful day of March 5.-Brawthen was occasionally trapped
in opinionated claims. His understanding of UE expulsion
was simply incorrect. See "A Brief History of the American
Labor Movement," U.S. Department of Labor, p. 47 (1970
ed.). He was admittedly mistaken concerning presence of an
El Dorado automobile, stemming perhaps from the inclina-
tion to treat the telling by "two or more people [off the same
information" as a "reliable source." On the other hand,
Brawthen's general recall, reconciliation of chronological de-
tail, and careful differentiation as to complex fact situations
was extremely impressive." Aside from faults noted he was
fully candid, readily conceded error, and displayed a vividly
excellent memory as to most of his own personal experiences.
In the realm of credibility I believe further that Richey, Ra-
mans, Blair, and, to a lesser extent, Reed, presented a com-
posite of testimony that cannot be accepted. There are numer-
ous flaws in the recounting of these four persons. Richey
would have it appear he sought out Ramans on the 4th or 5th
of March and took the initiative in focusing attention on
Brawthen's claimed wandering at the time. Ramans, on the
other hand, testified that on March 5 the accumulation of
incidents reaching his attention caused him to go "over to
personnel" for a discussion of options with Richey. Richey is
credibly contradicted on specifics by Trundle and Brawthen,
while Supervisor Dick McSorley fails to corroborate the voic-
ing of a complaint to Richey (Tr. 525, 697-703). Ramans
gave an overall impression of having difficulty maintaining
the edges of a contrived reconstruction of events. He vacil-
lated on whether, during the luncheon discussion, the subject
of union involvement was or could have been raised (Tr. 220)
and on whether Brawthen's job performance was discussed
(Tr. 225). He equivocated on the subject of work progress
reports (Tr. 250, 251). He confusedly identified "Friday after-
noon" (March 8) as the day "following" March 6 (Tr. 229,
230). These mmor discrepancies are capped by serious doubt
concerning Ramans' memory on the basis of his statement he
did not know the Union's name as of his departmental meet-
ing on February 8 (Tr. 216). This demonstrates woefully
weak recall since on only January 28 he had spoken from a
union pamphlet (Tr. 214).18 Ramans repeated Blair's error,
in an apparent effort to stigmatize Brawthen's presence in the
growing department, by mistakenly testifying that he was not
regularly assigned that area "during the last three months or
so" (Tr. 265). On the general issue of Brawthen's claimed
counsel characterizing Trundle's testimony as showing "an 8(a)(1) viola-
tion." (Tr 143.) General Counsel expressly declined to litigate the episode
as an independent violation (Tr. 11, 12, 13)
17 Tr 61, 1. 3 contains the word "after" in reference to the point in time
of Resp Exh. 10 (letter dated February 7). I have no basis to correct this
on my own motion, notwithstanding the natural harmonizing effect were the
word "before" substituted. If the question actually uttered at the hearing
posed "before" at that point the response is an obvious confirmation On the
other hand if the question actually posed "after," Brawthen' s response is
glaringly incorrect. I merely note awareness of this point in reaching credi-
bility resolutions.
18 The document used at this time was presumably a UE leaflet dated
January 16. (Resp. Exh. 1). In this the Union was clearly identified both by
full name and abbreviation Jo credibly referred to about 20 UE handbills
during the overall organizing campaign and there is every reason to expect
each was clear as to the Union's identity (Resp Exhs 9 and 20)
inattentiveness, the testimony of Reed is related to that of
Agar. The latter credibly testified that on several occasions
during Brawthen's last month of employment he observed
him speaking with operators and upon approaching the per-
sons involved Brawthen "generally left." Agar informed
Reed of this, who recalled observing similar occurrences him-
self. The more critical question is whether Reed correctly
fixes March -6 as the date on which he experienced a "third
occasion" of Brawthen "visiting" his area and asked that it
be stopped. Reed's testimony is remarkably more impressive
concerning McCartney than it is concerning Brawthen and I
believe this last episode occurred in February, as testified by
Brawthen, and not on March 6 or any day of that week.19
Thus I am satisfied a true sequence began with the lunch-
eon on or about February 20, during which- Ramans dis-
cussed union involvement and career future with Brawthen
but in no way complained of job performance or attention to
duty. The next event was Reed's routine admonishment to
Brawthen that be not talk with employees. Although charac-
terizing himself as actually "working" at the time, Brawthen
nevertheless acquiesced and this is credibly corroborated by
employee Diane Johnson (Tr. 691, 564). Brawthen was oc-
cupied March 4 and 5 with experimental fast shoulder grow-
ing attempts. At midmorning on March 5 he went to discuss
characteristics of a seed crystal with Blair, expecting to find
the latter in a plant cafeteria. While so proceeding, he ob-
served Richey in or adjacent to the growing department con-
versing with an occupational safety and health compliance
officer.20 Brawthen hesitated at the spot to the extent that
19 The record refers to "February or March " Context at that point clearly
indicates Brawthen means his estimate to be that the incident well preceded
March 5 (Tr 690, 691)
20 Richey testified that Respondent had several occupational safety and
health inspections during 1974, two of which apparently occurred prior to
Brawthen's discharge. The State of California Department of Jndustrial
Relations is now authorized to implement a "state plan" approved under
criteria of the Federal Occupational Safety and Health Act. One criterion
requires a showing that the state plan "[P]rovides for a right of entry and
inspection of all workplaces . . . at least as effective as that provided in
section 657...." (29 USCA § 667 (c)(3)). Formal approval noted that the
proposed plan and "contemplated" enabling legislation "[P]rovides em-
ployer and employee representatives an opportunity to accompany inspec-
tors and call attention to possible violations before, during and after inspec-
tions. " (38 F.R 10719, May 1, 1973.) The California plan is publicized
as "CAL/OSHA," a variation of "OSHA" meaning the Federal act or,
interchangeably, the administration responsible for Federal enforcement.
For convenience this Decision will maintain undifferentiated references in
the record by simply terming the subject "OSHA." Statutory phraseology
relative the inspections is as follows-
[T]he Secretary [of labor] is authorized . to inspect . any
place of employment . and to question privately any . em-
ployer, owner, operator, agent or employee. 29 USCA § 657 (a)
Subject to regulations issued by the Secretary , a representative of the
employer and a representative authorized by his employees shall be
given an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any workplace .. .
Where there is no authorized employee representative, the Secretary or
his authorized representative shall consult with a reasonable number of
employees concerning matters of health and safety in the workplace. 29
USCA § 657(e).
Prior to or during any inspection of any workplace, any employees or
representative of employees employed in such workplace may notify
the Secretary or any representative of the Secretary responsible for
SILTEC CORPORATION
Richey approached and pointedly suggested waiting duties be
performed. About 10 minutes later Brawthen scouted the
office of Plant Safety Engineer George Sudikatus, but was
summarily =told by Richey that he belonged in his break area
(Tir. 650). He next experienced sudden, excited remarks of
Ramans occurring later that day. This involved criticism of
Brawthen for seeming to intrude himself into the OSHA
inspection. Brawthen countered on the basis of understand-
ing it to be an activity within his rights. The conversation was
brief, however, with neither participant particularly pursuing
their initial thoughts.21 From the standpoint of task per-
formance and application to job requirements, the balance of
Brawthen's week was uneventful.22
][ have rejected the assigned reason for Brawthen's dis-
charge and although Shattuck Denn would invite taking the
step, do not conclude Respondent therefore acted with con-
ceafed unlawful motivation. The reliable, probative, substan-
tial evidence contained in the record as a whole does not show
unlawful conduct respecting the union activities that oc-
curred. Cf. CPE Industries, Ltd., 202 NLRB 782 (1973). I
instead infer that Respondent, influenced chiefly by Richey's
perception of his combined industrial relations and safety
functions, rid itself of Brawthen to interdict this involvement
with existing and prospective OSHA activities. Motivation
was strong and circumstances highly suggestive of this con-
clusion. Richey viewed the series of OSHA inspections with
disdainful aggravation. He monitored the apparent depth of
involvement in union activities by various employees and
would only reasonably view Brawthen's eager interest in the
March 5 inspection as a complication to the already delicate
decisions being made under the long-present cloud of an
organizing drive.23 I infer further that Richey prevailed on
conducting the inspection , in writing , of any violation of this chapter
which they have reason to believe exists in such workplace . 29 USCA
§ 657(0(2)
In the course of any investigation or inspection of an employer or place
of employment by an authorized representative of the division [of In-
dustrial Safety], a representative of the employer and a representative
authorized by his employees shall have an opportunity to accompany
him on the tour of inspection Any employee or employer, or their
authorized representatives, shall have the right to discuss safety viola-
tions or safety problems with the inspector privately during the course
of an investigation or inspection. Where there is no authorized em-
ployee representative, the [division] chief or his authorized representa-
tive shall consult with a reasonable number of employees concerning
matters of health and safety of the place of employment. California
Occupational Safety and Health Act of 1973, A B No 150 approved
October 1, 1973, West's Ann Labor Code § 6314(d).
21 The contradiction in testimony concerning this conversation is the
most critical in the record (Tr. 228, 229, 659, 660) The accepted version
is determinative of whether Brawthen had previously received any caution
concerning his work performance Brawthen's testimony on this point is
thoroughly persuasive and I fully credit his version.
22 It is uncontradicted that for the entire morning of March 6, Brawthen
assisted Respondent's maintenance employee in changing a seed rod. For
the` balance of that day and on March 7 several fast shoulder growing
attempts are shown, employing the experimental 12-inch-per-hour seed lift
rate. On March 8, the actual day of discharge, Brawthen handled the furnace
power loss in a manner previously noted and also worked with Ramans on
polishing pad inspection as a prelude to Richey's appearance.
23 There is ample wasting on the subject, the essence of which would
readily reach the attention of an industrial relations professional Illustrative
of comment associating OSHA with unionization is the following:
289
Ramans to contrive testimony relative to the February
20-March 6 span of time in an effort to conceal the true
actuating dynamics. Related to this is the fact that Respon-
dent's supervisors had reason to associate Brawthen with
McCartney24 and it must be remembered that commencing
the afternoon of March 5, and continuing in unacceptable
fashion the remaining days of that week, the latter mounted
such a stream of complaints as to mark himself for discharge.
I conclude Ramans' remarks of March 5 were meant to deter
Brawthen from further OSHA involvement but when, within
scant hours, this approach appeared too conservative for Re-
spondent's overall interests, the momentum of events
spawned a decision to terminate him. Overall interests means
Respondent's natural desire to avoid OSHA liability. This
inferred inclination cannot embrace the further conclusion
that Brawthen's coextensive union activities were a partial
influence, since a course of reasoning to that point would
require sheer speculation and be contrary to the weight of
evidence.
Second, the process of collective bargaining only produced a variety of
interim stopgap measures . Generally speaking , union efforts at the
bargaining table to impose more stringent controls over safety and
health have been beaten back as cost conscious companies continue to
guard zealously their "managerial prerogatives" over these subject
areas against erosion from any source . In any event , even assuming that
unions had made more significant gains, the impact would have been
confined to the organized sector, which reflects only a modest percent-
age of the nation's overall work-force
* * * * *
Further, union lawyers may wish to savor, and their management coun-
terparts contemplate warily, the fact that under OSHA, Congress con-
ferred upon labor unions a much more expansive opportunity to partici-
pate actively in all stages of compliance and enforcement than is the
case with respect to "charging parties" under the NLRA. George H.
Cohen, "The Occupational Safety and Health Act A Labor Lawyer's
Overview," 33 Ohio State Law Journal 788 , 789, 799, (1972)
The IUD [Industrial Union Department, AFL-CIO] has no sympathy
for employers [associated with the "virulent reaction" of management
to a proposed OSHA regulation amendment allowing public disclosure
of results of workplace hazards monitoring] who wish to keep workers
in the dark on possible hazards to their health of which they should be
aware . . Letter of Sheldon Samuels , IUD Director, Health, Safety
and Environmental Affairs, Occupational Safety & Health Reporter,
BNA, Vol. 3, No. 22, p. 715 (November 1, 1973)
[I]t is up to organized labor to convince management . of the need
for safe and healthful workplaces Conference remarks, "California
Labor Federation, AFL-CIO and the Center for Labor Research and
Education, University of California at Berkeley," Occupational Safety
& Health Reporter, BNA, Vol. 3, No. 24, p. 779 (November 15, 1973).
[O]SHA conveyed only "leverage" to unions in collective bargaining,
not added rights.
* * * * *
OSHA has had a more indirect impact on organizing activities in that
employee rights are not exercised adequately in an unorganized shop.
OSHA stimulates the desire to obtain benefits .
* * * * *
Because of this [insufficient number of OSHA compliance officers],
voluntary compliance on a unilateral basis "is simply paternal" . . it
should be bilateral and where there is a union, it should be contractual
John J. Sheehan , Legislative Director , United Steelworkers of America,
participant for "Federal Bar Association-Bureau of National Affairs
Institute on Occupational Safety & Health," Occupational Safety &
Health Reporter, BNA, Vol 3, No. 51, p 1625, (May 23, 1974).
24 Tr. 295, 434, 435.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The subject of safety (incorporating OSHA) metamor-
phosed during trial of this case. Initially, General Counsel
adduced no testimony from Brawthen relative to OSHA and
objected to cross-examination on the subject of safety as
beyond scope of the direct (Tr. 64). It was not until rebuttal,
on the fourth day of hearing, that Brawthen's testimony cov-
ered particulars of his interest in OSHA enforcement. This
was repeatedly and successfully objected to by Respondent on
grounds it improperly broadened General Counsel's theory of
the case (Tr. 540-548, 642-647, 663-668) .' It is first neces-
sary to note that the general concept of workplace safety
differs from structured provisions and procedures of OSHA
enforcement . 26 Respondent is not shown to oppose general
elevation of-safety practices by and affecting - its employees.
Admittedly Brawthen was twice cautioned by Jo in this re-
gard and by March at the latest inculcation of safety aware-
ness among employees was being stressed . 21 However the
separate matter of OSHA participation by Brawthen, to
which Respondent 's hostility has been inferred, was not
pleaded or timely advanced as a theory of the amended com-
plaint's paragraph VII(a). Wray Electric Contracting, Inc.,
210 NLRB 757 (1974), is an instance of proper grounding in
this regard. There the complaint alleged an individual was
discharged because he "[E]ngaged in certain activities on
behalf of. . . the Union and, more particularly, for the rea-
son that [he] filed a complaint . . . with the United States
25 Tr 647, 1 5 is corrected by substituting " clear" for "queer " Tr 659,
1. 21, Tr. 664'11. 14, 25 and Tr 665, line 4 are corrected by substituting
"OSHA" for "OCEA " -
26 This is illustrated by Uniroyal, Inc, 197 NLRB 1034 ( 1972), a case in
which the employer claimed failure to observe a safety regulation was the
reason for an employee's discharge In resolving that issue , it was found to
be unnecessary to take "official notice" of the Occupational Safety and
Health Act since such was not found "relevant to the immediate issue of
discharge " (TXD, fn. 19)
27 The distinction is reflected in comment during colloquy with counsel
that "departing" from safety requirements might "[be] intertwined" with
OSHA as a matter of testimonial continuity (TR 548)
Department of Labor alleging that certain conditions of em-
ployment at Respondent's . . . jobsite '. . . were unsafe in
violation of the Occupational Safety and Health Act of 1970."
The finding in Wray, adopted by the Board, was that the
individual had been discriminatorily discharged for "con-
certed or union activity" of filing "a complaint with OSHA."
The instant case did not result in litigation of such an issue.
Ordinarily a fully litigated matter is one where each adver-
sary consciously addresses a particularized issue. The doc-
trine is applied in Atlantic Coast Fisheries, 183 NLRB 921
(1970), where the Board found that "jT]he question of
whether the layoff was a `sham ' was neither alleged in the
compaint nor fully litigated" in a situation where "there was
neither a specific nor a general allegation that the Respondent
effected a premature seasonal layoff in order to discourage
union activity."28 A proper test of the gravamen of a com-
plaint is whether sections of the Act are specifically invoked
or theories of unlawful motivation appropriately advanced at
hearing, as a necessary basis for the subsequent phenomenon
of "full litigation." Cf. Western Commercial Transport, Inc.,
201 NLRB 17 (1973). An insufficient foundation exists to
treat the matter of Brawthen 's activities relative to OSHA as
a fully litigated issue. Neither the complaint nor General
Counsel 's opening statement gave any hint such would be an
issue of the case. It was belatedly, and somewhat equivocally,
introduced during a closing stage of the hearing . General
Counsel 's brief does not raise the point other than as minor
factual continuity (G.C. brief, p. 16). In these circumstances
no basis exists to adjudicate whether Brawthen 's OSHA in-
volvement was "other concerted" activity which caused his
discharge.
[Recommended Order for dismissal omitted from
publication.]
28 Cf Monroe Feed Store, 112 NLRB 1336 (1955); Phillips Industries,
Incorporated, 172 NLRB 2119 (1968).