Project Aid

National Labor Relations Board - Board Decisions

Feb 14, 1979

240 N.L.R.B. 743 (N.L.R.B. 1979)

PROJECT AID 743
American and Indo-China Development a/k/a Project
Aid and Wanda Aydogan. William Patry, Dannie
Fairley. Cases 23-CA 6717 1, 23-CA-6717 3, and
23-CA-735
February 14. 1979
DECISION AND ORDER
By CHAIRMAN FANNIN(G AND MFMBI.RS PNFIEIO
AND TRUESDAI
On November 17, 1978. Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the Charging Parties and the
General Counsel filed exceptions and supporting
briefs.
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 and to
adopt his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, American and Indo-China
Development a/k/a Project Aid, Houston, Texas. its
officers, agents, successors, and assigns. shall take
the action set forth in the said recommended Order,
as so modified:
1. Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Expunge from its records any notices of rep-
rimand and/or discharge given to William Patry and
Wanda Aydogan.
2. Substitute the attached notice for that of the
Administrative Law Judge.
'The General Counsel has excepted to certain inadvertent typographical
errors in the Administrative l.aw Judge's Decision. we find merit in those
exceptions. Accordingly. the appropriate corrections have been nade in the
Administrative Law Judge's Decision
2 The Administrative Lt.aw Judge found that Respondent iolated Sec.
8(aX I) of the Act by reprimanding and discharging employees William Pa-
try and Wanda Aydogan. However. in remedsing that xiolation. he ne-
glected to require Respondent to expunge from its record, a notices of
reprimand and or discharge taken against Patrr and Adogan Accord-
lngl., our Order herein modifies the Administrative Lax Judge's Order to
provide for such expungement.
240 NLRB No. 101
APPENDIX
Noi I(I To EMPI.OYtELS
POS IED) H ORDIR (01 1 II
N.\IIONAI LABOR R L.AIONS BOARD
An Agency of the United States Government
Wt WI i. NO1 reprimand. discharge, or con-
structively discharge any employee for engaging
in protected activities or for filing charges with
the National Labor Relations Board.
W will 1. so instruct any employee not to en-
gage in protected activities.
Wi wLl. ,oT impliedly threaten employees
with discharge because of their protected activi-
ties.
Wf wlL ,X N)I in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them under Section
7 of the Act.
WL. ilL. offer reemployment to William Patry
and Wanda Aydogan and pay them for losses
thev suffered as a result of our having dis-
charged them, plus interest.
Wt wIL expunge from our records any no-
tices of reprimand or discharge given to William
Patrv and Wanda Aydogan.
AMERICAN AND INDO-CHINA DIVELI.OPMF.NI
a/k/a PROJt(-i All)
DECISION
STAIEMENT OF TlE CASE
MEIV. J WELLES, Administrative Law Judge: This case
was heard before me at Houston, Texas. on March 13 and
14, 1978. based on charges filed September 7 and 15, 1977,
and amended on January I I and 23, 1978. and a complaint
issued January 31, 1978, alleging that Respondent violated
Section 8(a)(I) and (4) of the Act. The General Counsel,
the Charging Parties, and Respondent have filed briefs.'
Upon the entire record in the case, including my obser-
vation of the witnesses, I make the following:
FINDINc;s OF FA(CT
I. THE BSINESS OF TIEF EMPLOYFR
Respondent is a Texas corporation, with offices and
places of business in various locations in Texas, including
the Houston, Texas, facility here involved. It is engaged in
the business of offering employment services, job training,
day-care services, social services, including securing medi-
cal care, and transportation to relocated Indo-Chinese per-
sons. During the 12 months preceding the issuance of the
I -Ihough Respondent's brief ,is untimel, filed. I have accepted it. and
I herchb dens the (ieneral ( ouncl's motion to strike it.
PROJECT AID 43
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, Respondent received gross revenues in excess of
$500,000 from various State and federally funded con-
tracts. Its government contracts included some given pur-
suant to the Comprehensive Employment Training Act
(CETA) and through the Department of Public Welfare,
now known as the Department of Human Resources. Such
contracts produced revenues in excess of $250,000. During
the same period, Respondent did business valued in excess
of $50,000 with Southwestern Bell Telephone Company
and International Business Machine Co., both of which are
directly engaged in commerce. I find, as Respondent ad-
mits, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II IHE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated Section
8(a)(l) of the Act by the conduct of its executive director,
Dr. Michael Dismond, in (1) instructing employees that
they were forbidden to discuss among themselves wage
problems and rates of pay, (2) telling employees that those
who persisted in protesting regarding pay problems would
be fired as other employees had been fired in the past, and
(3) reprimanding two employees, Wanda Aydogan and
William Patry, and placing them on 60 days' probation.
The complaint also alleges that Respondent violated Sec-
tion 8(a)(1) by discharging employee Patry and construc-
tively discharging employees Aydogan and Dannie Fairley.
The discharge of Patry and the constructive discharge of
Aydogan are also alleged to have violated Section 8(a)(4)
on the ground that these acts were taken because the em-
ployees filed charges with the Board.
Resolution of the aforementioned issues depends in part
on the credibility of the witnesses. The principal issues,
apart from credibility, are whether the three alleged dis-
criminatees engaged in protected concerted activities,
whether Patry was discharged because of such activities,
whether Fairley's and Aydogan's resignations are attribut-
able to Respondent's treatment of them, and whether that
treatment stemmed from protected concerted activities on
their part.
B. The Facts
As mentioned above, Respondent is engaged in provid-
ing various social services to relocated Indochinese per-
sons. It operates in part under government contracts from
CETA, and it hired the three Charging Parties, William
Patry, Wanda Aydogan, and Dannie Fairley, by referral
from an organization known as Vocational Guidance Ser-
vice, Inc., herein called VGS. VGS employed personnel
whose duties involved monitoring the contract for various
purposes. Alex Sanchez was the VGS monitor for Project
Aid during most of the period here involved. He was re-
quired to visit the jobsite at least once a month and actual-
ly visited Project Aid about 10 times between April 1 and
the end of August 1977. A grievance procedure set up by
CETA provided for resolution of employee grievances by
final steps if the grievance was not resolved by, first, the
"Employing Agency," in this case Respondent, and, sec-
ond, the "Delivery Agent." in this case VGS.
Patry and Fairley began their employment toward the
end of May 1977; Aydogan, on June 3. Patry was hired as
an "Instructor ": and the other two, as "Crisis Interven-
tion Workers l's." In each instance, the contract between
VGS and Project Aid specified the kinds of services to be
performed. A day or two after Patry and Fairley were
hired, they attended an orientation meeting at VGS, along
with two other Project Aid employees, Debra Haynes and
Nguyen Duong, and one employee from another outfit.
Lucille DiDomenico, a director of VGS, and Sanchez were
there for VGS. Project Aid had informed Patry and Fairley
that they would not receive their first full paychecks until
July 25. DiDomenico and Sanchez told them that it was
not necessary for Project Aid to delay the first full payment
and also that Project Aid could pay the employees biweek-
ly. Sanchez said that he would be in touch with Dismond,
the director of Project Aid, about this, and Sanchez later
told Patry that he had contacted Dismond. Patry, Fairley,
Haynes, and Duong returned from the orientation meeting
and conferred with Irene Randle, Dismond's deputy direc-
tor. They recounted to her their discussion with DiDomen-
ico and Sanchez. Randle replied by saying she would discuss
the matter with Dismond.
The first paychecks to Patry and Fairley, given to them
on June 25, covered only the period from May 26 to May
31. At that point Patry called Sanchez, and it was then that
Sanchez told him he had spoken with Dismond the day of
the orientation meeting and that Dismond had agreed to
attempt to correct the situation. Sanchez also said that Dis-
mond was not refusing to do anything about it. Patry then
made an appointment with Dismond's secretary, Diane
McDonald, for himself and Fairley to meeting with Dis-
mond on June 29. Patry, Fairley, Aydogan, Haynes, and
one other employee had discussed the matter among them-
selves in the meantime. McDonald subsequently told Patry
and Fairley that Dismond would see them individually,
rather than together. Both employees did meet with Dis-
mond on that date. After Patry explained the problem with
regard to pay to Dismond, Dismond said that "bookkeep-
ing requirements of such a change prohibited it." Fairley
then went in to see Dismond. He told Dismond, as had
Patr.y that VGS said they (the Company) could pay the
full amount if they wished to do so. Dismond said he was
"tired of talking about the pay situation" and that he was
tired of them trying to tell him how to pay his employees.
When Fairley said that paying the employees the full
amount was an accomodation to them rather than to VGS
and mentioned the employees' problems, that they really
needed the money, Dismond reiterated that he was tired of
the problem of VGS and that he "had fired employees for
the same type of problem."
Dismond confirmed Patry's testimony with respect to
their meeting on June 29, but denied that he even discussed
the pay situation at his meeting with Fairley that day. He
testified that his discussion with Fairley concerned travel
reimbursement money and that he also talked with Fairley
about his having been harassing Supervisor Lee Lillie.
Because there were many other conflicts between the tes-
timonies of General Counsel witnesses and Dismond, I di-
PROJECT AID 745
gress at this point to discuss the credibility issues. I am
convinced, based not only on Dismond's demeanor but
also on various inconsistencies in his testimony, as well as
instances where Respondent's own witnesses either did not
confirm or specifically contradicted Dismond's testimony,
that he was dissembling. Thus, when Dismond was first
examined by the General Counsel under Section 611(c) of
the Federal Rules of Evidence, he exhibited a remarkable
lack of memory about the duties of the employees and the
dates and substance of events that are at issue here. He
also contradicted himself on many occasions. He first testi-
fied that he had not spoken with Patry about the pay situa-
tion prior to a certain July 6 meeting. A short time later, he
testified that he had spoken with Patry about the pay situa-
tion prior to the meeting. Dismond said he did not "recol-
lect" whether Patry responded in writing to his termina-
tion, although the document "looked familiar." In view of
the contents of Patry's response, it is not the sort of thing
that would not be well remembered. Dismond testified that
he caused Aydogan to be transferred four different times
between June and September because of reports that she
was not interested in doing her job. His testimony was that
"for the entire time that Wanda was with us, I believe I
transferred Wanda at least four time in an effort to find
something that she would get involved in doing, because
prior to that point she wouldn't do anything." On cross-
examination, Dismond said that the reports on Aydogan
that caused him to transfer her four times came from Irene
Randle, that he also observed her himself, and that he "be-
lieved" John Robiero gave him some reports on Aydogan.
Robiero was not called as a witness, and Randle, although
appearing as a witness for Respondent, was never asked to
confirm Dismond's testimony with respect to reports from
her to him about Aydogan. Furthermore, a "performance
appraisal" of Aydogan by Randle, dated July 14, 1977, is
in evidence and shows Aydogan as being rated "very
good" in 12 of the 15 categories listed on the form and
"average" on the other 3, with no "fair" or "poor" ratings
at all. This evaluation scarcely comports with Dismond's
description of Aydogan as an employee who "wouldn't do
anything."
Dismond testified, when called by the General Counsel
initially, that he did not "remember specifically what I
said" at the July 6 meeting. His memory presumably im-
proved when he testified on Respondent's behalf, as he
then was able to "recall" in some detail what he said and to
deny categorically making any statement to the effect that
he had previously discharged employees for raising ques-
tions about pay. But the testimony of all General Counsel
witnesses who attended that meeting was that Dismond
had made such statements, and these witnesses included
one, Edward Moran, who is not otherwise involved in this
proceeding and who testified credibly that Dismond did
speak about the fact that "previous individuals had already
had a grievance of some nature. and these individuals were
terminated." DiAnn Youker, called by Respondent and a
member of its board of directors, reluctantly testified, on
cross-examination, that Dismond had "talked about indi-
viduals who had previously worked with Project Aid and
that he had fired the staff because of reasons that were
not-whatever you want to put it-emotionally involved
with the program." When asked for her best recollection as
to precisely what it was that Dismond had said in this re-
spect, she replied "I don't remember specifically what he
said." She then stated that Dismond said "that the reason
he had fired them was because they had told lies about the
agency. Things that they did not know they had gone to
the funding sources and told them. That was about it." The
sum total of Youker's testimony clearly supports the ver-
sion of Dismond's remarks given by the General Counsel's
witnesses. Two other supervisors, Marilyn Smythe and Lil-
lie, although called as witnesses by Respondent, were not
asked about this meeting, which they attended.
Even the particular conflict between the testimony of
Fairley and Dismond regarding what was said at their
meeting on June 29, which conflict occasioned this digres-
sion to discuss Dismond's credibility, supports the conclu-
sion that Fairley rather than Dismond should be credited.
For Patry and Fairley were attempting to meet with Dis-
mond together, with the pay situation being the subject.
And although Dismond insisted on seeing each separately,
it is extremely unlikely that Fairley would not have dis-
cussed with him the very subject about which the two em-
ployees sought the meeting. In sum. I am convinced that
conflicts between Dismond and witnesses for the General
Counsel should be resolved in favor of the latter, and the
facts set forth hereinafter are based on the credited testi-
mony of those witnesses.2
On July 6 Dismond called a meeting of employees, the
one already referred to in the credibility discussion above.
Fairley did not attend, but Patry, Aydogan, Haynes, and
other employees and supervisors did. Dismond began the
meeting by telling the employees that he was ashamed of
the "Title 6 employees," although he had been proud of
them up to then. He went on to say that he was "tired of all
this crap about pay difficulties, that that matter would be
discussed at the meeting, but that he would not discuss it
subsequent to the meeting." Dismond went on to say that
the pay schedule "had been explained to us, and that it
would not be changed . . . that VGS owed him $9,000. . .
and that he had fired a staff of people for a similar dispute
in the past, and that he would do it again . . . and that
subsequent to this meeting that we were not to discuss wag-
es among ourselves, that if we didn't have anything to do,
we were to go shut up in the corner . . . that there had
been some talk about grievances, and that we didn't know
the first thing about filing grievances . .. that even if we
did file a grievance, that he had a friend at VGS, whom he
named, that would take care of the problem for him." 3
Dismond then asked if there were any questions, and
only Patry responded. Patry said that he understood the
policy of Project Aid was to pay the employees 7 weeks
after they started but that VGS had given them a different
reason, adding that he did not want to be branded as a
troublemaker concerning this matter. Dismond said that he
I discu,. as necessary, other conflicts in testiln) ' Involving olher Ait-
ne-es for Respondent
lie named Audre I axsln a he "friend" he foregming qutallions Ire
from the etinlloll Of Patr. Althoiugh the precise H ords Dismond uttered
are ot denticad In the testimon of the other itlnesses for the (eneral
('ounel. the glil of their tesllionI corrhoborales Patr s
PROJECT AID 45
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not use the meeting to discuss the matter with Patry
personally.
On August 24 the employees received a memorandum
from Randle that there would be a meeting of the VGS-
CETA participants in her office the next day. Patry, Fair-
ley, and Aydogan discussed among themselves the possibil-
ity that this meeting involved pay. as it was scheduled for
payday, and they informed Sanchez of the impending
meeting. At the meeting, Randle informed the employees
that they would not get their paychecks that day. (Their
surmise proved to be correct.) Patry told Randle that he
"found it hard to believe, because it seemed that all these
pay difficulties kept on happening to the same people, and
other people did not have difficulties with their checks."
When Marilyn Smythe came into the room and said she
had recently been appointed as director of personnel and
that she was not able to keep up with the great many con-
tracts, Patry said that it was interesting that she had re-
ceived her check on time. Fairley also voiced a strong pro-
test at not receiving the check on time. Randle said that she
would talk to the VGS bookkeeper and try to arrange for
the employees to be paid as soon as possible. The employ-
ees involved received their checks on August 31. In the
meantime, they had called Sanchez in order to file griev-
ances and request a "transfer meeting" at VGS. These
grievances were filed, and on August 31 Patry, Fairley, Ay-
dogan. and Haynes, along with Sanchez, met with McCar-
thy, the director of VGS, Kay Warhold, supervisor of mon-
itors at VGS, Audrey Lawson, and a transcriber. Patry and
Fairley had specifically asked Supervisor Booker for per-
mission to attend this grievance meeting, and Booker had
granted the request.
On September I Patry received a written reprimand,
placing him on probation for 60 days. The reprimand
(from Dismond to Patry) read as follows:
Mr. Patry, this reprimand is to advise you that you
are hereby placed on probation for a period of 60 days
for the following reasons:
a. August 31, 1977, you were informed by your sup-
ervisor, Ms. Irene Randle. to report to the Executive
Director for a new job assignment. That same af-
ternoon, you failed to do so.
b. August 31, 1977, you left your work station with-
out permission at 3:45 as reported by Mr. John Rubei-
ro, a staff administrator.
c. On August 31, 1977, you left your work station
and at 4 o'clock the personnel officer advised me that
you failed to sign the time sheet and you departed for
the remainder of the day.
d. On September 1, 1977. you failed to sign the time
sheet in the morning and at your lunch hour and was
seen driving away from the office and were absent
over an half an hour period.
e. On August 31, 1977, the personnel director
marked 4 o'clock as your time out because you left
prior and did not sign out, and your time sheet on
September 1, 1977, showed at 5:30 forged correction
for time out.
This reprimand is intended to urge you to carry out
your work assignments in a manner expected of a staff
person and any violation of agency procedures after
receipt of this letter will result in automatic termina-
tion.
Finally you are assigned to assist Mr. Ed Moran in
the training Component and will report to Mr. John
Rubeiro, Coordinator of Social Service until return of
Ms. Irene Randle, your permanent supervisor.
On the same day, Dismond gave Aydogan a written rep-
rimand, which read:
Mrs. Aydogan, this reprimand is to advise you that
you are hereby placed on probation for a period of 60
days for the following reasons:
a. August 31, 1977, you left your work station with-
out permission at 3:45 as reported by Mr. John Rubei-
ro, a staff administrator.
b. On August 31, 1977, you left your work station
and at 4 o'clock the personnel officer advised me that
you failed to sign the time sheet and you departed for
the remainder of the day.
c. On August 30, 1977, your time sheet indicates
that you have either signed in for another staff person,
or another staff person has signed in for you, both are
violations of company procedures.
d. On September 1, 1977, your time sheet indicates
that you have either signed in for another staff person
or another staff person has signed in for you, both are
violations of company procedures.
This reprimand is intended to urge you to carry out
your work assignments in a manner expected of a staff
person and any violation of agency procedures after
receipt of this letter will result in automatic termina-
tion.
Finally you are assigned to Mr. Lee Lillie in Indus-
trial Relations and Crisis Intervention.
Patry had returned late (about 2 p.m.) the day before
from the grievance meeting at VGS. According to him,
Randle told him to report to Dismond the next day.4 The
next morning, about 8:45 a.m., Patry called Dismond's of-
fice. He told Diane McDonald (Dismond's secretary) that
Randle had told him to report to Dismond. McDonald
said that Dismond would get back to him. About 2 hours
later, Patry again called Dismond's office. He finally saw
Dismond in the afternoon, and Dismond gave him a copy
of the reprimand set forth above. Patry proceeded to dis-
cuss each aspect of the reprimand with Dismond, in an
attempt to explain precisely what the situation was on each
item there listed. And the next day Patry turned in a writ-
Randle testified that she had called Patrs earl on August 31 and left a
message for him to call back, that he did so about 12:30 p.m. and that she
then told him to report Ito Dismond that afternoon. Although Randle was at
home ill on the da, in question. she testified that she often made and re-
ceised calls at home pertaining to Project Aid work. Her recollection of how
mans days she had been ill at the time was quite vague. When asked wheth-
er she had been told hv Dismond that it was urgent for Patry to report to
him, she replied: "No. I chose to do it that da 3 That was my prerogative."
As It is undisputed that Patr) was at the VGS grievance meeting that day
until about 2 p.m.. Randle was clearly mistaken about the time of her con-
versation w ith him. Furthermore, Patr)'s conduct the next day (reported in
the text a.bove) s hardly that of someone defying a direct order from a
suiper isor. but rather than of a person seeking to comply with an, order
given In the circumstances, I credit Patry over Randle.
PROJECT AID 747
ten statement to Dismond as a "written form of my oral
rebuttal" of the previous day.
On September 12 Marilyn Smythe delivered to Patry a
memorandum from Dismond entitled "Termination" and
reading as follows:
This letter is to advise you that effective immedi-
ately, you are hereby terminated for the following rea-
sons:
A. Upon receipt of your rebuttal of my reprimand.
you stated that your Supervisor Ms. Irene Randle, on
August 31, 1977. instructed you to report to the Exec-
utive Director, September 1, 1977. Ms. Irene Randle
stated that she specifically instructed you to report to
the Executive Director on August 31. 1977. This is a
failure to follow specific instructions, as outlined in
Section 14. Causes of Disciplinary Action, of the Per-
sonnel Policy. When questioned in this regard you de-
liberately made false statement to the Executive Di-
rector, both orally, and in written form.
B. When questioned by the Executive Director con-
cerning your whereabouts on August 31, 1977. when
you left your work station, you stated that you were in
Mr. Booker's office and consequently that was the ba-
sis for the Personnel Director's failure to locate you.
Subsequently in your rebuttal letter to the Executive
Director you indicated that you were at your work
station, which is not Mr. Booker's office, in the pres-
ence of two (2) employees, one which was Mr. Booker.
At approximately 4:00. Mr. John Rubeiro, Director of
Transportation, informed the Executive Director that
he was in Mr. Booker's office and witnessed you ac-
companying others leaving the Project AID facilities.
In addition, Mary Lou O'Brian indicated to the Per-
sonnel Director and the Transportation Director, that
you in fact had left for personal reasons. It is quite
obvious that your statements to the Executive Direc-
tor were false () constituting absence without satis-
factory explanation or tardiness and (2) unauthorized
time away from work station, as indicated in Section
I., Causes of Disciplinary Action, of the Personnel Pol-
icy. In view of the above, I feel your conduct is unbe-
coming of a staff member of Project AID.
The next day. September 13. Patry gave Smythe a writ-
ten "rebuttal to termination" memorandum. Also on Sep-
tember 13, Patry was informed that VGS had denied their
requests for transfer. On September 26 or 27 CETA re-
versed that decision.
Sanchez testified credibly as to numerous conversations
with various Project Aid employees concerning the pay sit-
uation there, as well as to the May 27 orientation meeting
at VGS, where Patry and Fairley, among others, discussed
the problem. He testified also as to having spoken with
Dismond after the orientation meeting, telling Dismond of
the "new fiscal policy" at VGS, which would enable the
employees to be paid their first check more promptly. San-
chez brought up the pay subject again on about June 23
with Dismond, telling him that the employees were upset
about having received a "short check." Dismond told San-
chez that "no one could dictate to him how to run his
payroll or bookkeeping department," repeating this again
after Sanchez explained that he was not trying to force
Dismond to pay the employees any sooner. but was ap-
pealing "to his sense of understanding and humanit." Dis-
mond repeated that he would pay only on the 25th of each
month and that the employees concerned would not re-
ceive a full paycheck until July 25. A day or so later, San-
chez informed the employees of the results of his conversa-
tion with Dismond. And, as already noted, in late June and
early July five employees, including Patry. Fairley. and Ay-
dogan. discussed with Sanchez the filing of grievances with
VGS and CETA protesting having received only a week's
pay on June 25. Sanchez explained the grievance procedure
to them, telling them they must first contact their immedi-
ate supervisor. When they said they had done that, San-
chez told them they)' needed to put their complaints in writ-
ing and submit them to VGS. At the employees' request, he
consulted his director at VGS. Lucille DiDomenico, who
told Sanchez. as he later told the employees. that CETA
would very likely not force Project Aid to change its pay
schedule.
The five employees then indicated to Sanchez that they
would "cool it." and not submit grievances. for they
thought by then it would be useless to do so. Subsequently,
after the July 6 meeting, a number of employees told San-
chez what Dismond had said there. Sanchez reported this
discussions to DiDomenico and Audrey Lawson. of VGS,
who told Sanchez they could do nothing unless he received
written complaints from the employees. Sanchez then
asked Irene Randle for permission to visit Project Aid to
talk with the employees. Randle denied this permission.
asking Sanchez why he was visiting them and talking to
them so much. Sanchez replied that it was part of his job
duties. She then said that they were extremely busy. and he
could not speak with them for at least 2 or 3 days. Sanchez
then received permission from his immediate supervisor at
VGS. Kay Warhold, to contact the Project Aid employees
at their homes. He did so, telling them they had to submit
written grievances for VGS to do anything about the situa-
tion.
On July 20 Sanchez attended a meeting at VGS, with
Dismond present, as well as Irene Randle and VGS direc-
tors DiDomenico and Lawson. Dismond said he had
complaints about Sanchez for "going too, far." "meddling,
interfering with his work . .. and with his employees," and
calling them at home. Sanchez said he had permission to
call them at home, and DiDomenico and Lawson agreed
with Sanchez. He then went on to list complaints he had
about Dismond for "violating the contract between VGS
and Project Aid." such as employees not performing duties
in accordance with their job descriptions and the reports to
him by Project Aid employees about Dismond's threats at
the July 7 meeting. Dismond denied that this latter had
occurred. Either Dismond or Randle suggested that San-
chez be removed as Project Aid monitor. Lawson said she
would take the request under advisement.
On August 30 Patry and Aydogan delivered written
grievances to Sanchez, meeting him outside Project Aid's
premises to do so. Fairley presented a written grievance to
Sanchez the following day. at VGS. with Patry. Aydogan.
Haynes, McCarthy (executive director of VGS), and Law-
son present. Later, as noted above, the grievances were
PROJECT AID
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied, but still later, after the intervention of CETA, the
employees were allowed to be reinstated in the CETA pro-
gram and secure employment elsewhere.
The next day, September 1, 1977, Aydogan received the
written reprimand from Dismond set forth above.
When Dismond gave Aydogan her reprimand, he told
her that someone had signed in and out for her. She replied
that she had signed for the other person. He also told her
that she was to be transferred to a new supervisor, Lee
Lillie, and was to move her work station upstairs and that
she had not been working to capacity. Aydogan reported
to Lillie that day. He told her she would be working the
second floor and was not to go downstairs any more, and
not to talk to more than one person at a time. He also told
her specifically she was not to talk to Fairley and that she
was not to leave her desk for anything other than "bodily
functions" without asking him.5
On September 14 Aydogan submitted her resignation, in
writing, to Dismond.6 The resignation read as follows:
This is to inform you that I am resigning effective
immediately. This resignation has been dictated by the
deterioration of my health due to the intolerable work
conditions: harassement by my supervisor Lee Lillie
who ordered me to remain at my desk except when
forced to do so by bodily functions; restriction of
communication in that I was not allowed to talk to
more than one person at a time nor to certain individ-
uals; restriction of movement from the lower or coun-
seling level, which had been my former work station;
selective placement on probation based on trumped
up charges. All these limitations were a clear retalia-
tory act for filing my grievance and request for trans-
fer to VGS on August 31, 1977. Moreover, my condi-
tion was seriously exacerbated by VGS' inexplicable
failure to honor a justifiable request for transfer.
Earlier, in mid-July, Aydogan had a discussion with
Dismond, who told her that she should not "discuss these
matters 7 with Mr. Sanchez or give him any information
about the conditions as Project Aid, that the telephone line
would be cut off to him. He shouldn't call Project Aid, and
I shouldn't receive any calls from him." Dismond also told
her "not to talk to Mr. Fairley."
About July 20 Fairley met with Randle in her office.
Randle told him that four employees had said he was the
ringleader "of all the problems they were having about
payroll and VGS, and that maybe Project Aid wasn't the
place for me." Fairley denied being the ringleader and said
he preferred "to be faced by his accusers." He also told
Randle he would not resign, that he did not want leave
Project Aid with a cloud over his head to the effect that he
was a disruptive employee. Fairley went to see Dismond
following his meeting with Randle. He reported to Dis-
mond the gist of his conversation with Randle, including
Lillie in effect confirmed Aydogan's testimony in most respects and did
not deny any of it. tie testified that it was Dismond who told him to limit
Avdogan's activities.
She physically gave it to Marilyn Smythe. telling her at the time that she
felt the work conditions were sery restrictive and that the .were ruining her
health. Smythe told her she could stay on if she wanted to.
"hese matters" referred to pay problems.
the fact that Randle suggested that he resign. Dismond
said that he did not think that Project Aid was the best
place for Fairley and that maybe should resign. After Fair-
ley said they would have to fire him, Dismond said he was
"tired of the situation with VGS, and that he was tired of
Alex Sanchez, and that he had a person named Audry
Lawson over at VGS who could take care of Alex San-
chez." Dismond also told Fairley that there were certain
things he should not say, that he was not to be seen in the
halls or talking to people other than one at a time, but
never in a group, and that Dismond preferred that Fairley
stay downstairs.
On August 29 Fairley submitted his written resignation
to Randle, stating: "I was respectfully submitting my resig-
nation inclusive of a 2 week notice. My last official day
with Project Aid, will be Friday, September 9, 1977. The
2-week period will be sufficient time to complete any and
all existing work assignments and incomplete projects. I
am resigning effective Friday, September 9, 1977, due to
the conditions and situations surrounding my employment
per the conversation we had Friday, August 26, 1977." The
August 26 conversation referred to in the resignation letter
involved a meeting with Randle, at her request, concerning
Fairely's working on a particular committee.8 After some
discussion of this matter, Fairley told Randle he was "tired
of all these accusations and always being accused of things
by staff people at Project Aid when they didn't have any
proof or any knowledge, and that I wouldn't handle the
pressure any more and that I was resigning from Project
Aid."
Discussion
A. The Section 8(a)(1) Violations
As set forth above, there is no question but that Respon-
dent violated Section 8(a)(1) of the Act, as alleged in the
complaint, by Dismond's telling the employees, at the July
6 meeting, that he had "fired a staff of people for a similar
dispute in the past" and by instructing them, at the same
meeting, not to discuss wages among themselves. By the
latter, Respondent was manifestly attempting to curb em-
ployees from discussing matters of concern to them relat-
ing to conditions of their employment. And the prohibition
against talking among themselves was in no way limited to
times and places when and where employees were perform-
ing work functions, but was rather a blanket prohibition.
By the former, Dismond was clearly implying that the
same thing could happen to the present employees, if they
protested their pay problems, that had befallen past em-
A number of employees had requested that the meeting of the commit-
tee be postponed until they received their August 25 paychecks. Fairles told
Randle at the time that he was not refusing to work. and she said that
perhaps she was mistaken.
Ihe foregoing facts relating to Fairley are based on his credited testi-
monn) Although Fairley did not "recall" the conversations in any detail, he
did not dens the substance of Randle's testimony to the effect that she did
not confirm that she suggested to Fairley that he resign. and she did testify,
nlhe inly thing that I can recall talking with Dannie about is what his
feelings were. working at Project Aid. whether he was happy there. and what
his recourses were if he was not." This latter testimony in effect supports
Falirle,'s testimony in this respect. Dismond did not testify with respect to
the conversations referred to above.
PROJECT AID 749
ployees, who, according to Dismond, had been fired for
such protests.
The complaint also alleges that the reprimands given to
employees Patry and Aydogan on September 1, 1977, vio-
lated Section 8(a)(1). I am satisfied that these reprimands
were given because of Patry's and Aydogan's protected
concerted activities and, therefore, that the complaint's
allegation in this respect should be sustained. My reasons
for so concluding are set forth below in connection with
the discussion of Patry's discharge and the alleged con-
structive discharges of Aydogan and Fairely.
B. The Alleged Concerted Activities of the Discriminatees
The uncontradicted facts set forth above demonstrate
that the activities of employees Patry, Fairle, and Aydo-
gan were both concerted and protected. Thus, almost from
the outset of their employment, these employees, as well as
some others, had been discussing among themselves that
they were not being paid their first full paycheck for almost
2 months. They complained to VGS monitor Sanchez
about the matter on a number of occasions. Four employ-
ees, including Patry and Fairley, complained to Deputy
Director Irene Randle. Patry and Fairley also met with
Dismond to discuss the matter. They met separately, al-
though they had attempted to see Dismond together. The
very nature of the July 6 meeting called by Dismond estab-
lishes not only the concerted nature of the employees' ac-
tivities in this respect but also that Dismond was fully
aware of them. He would not otherwise have directed them
not to discuss the matter among themselves or referred, as
he did, to the filing of grievances by them, indicating the
futility of such filing because he "had a friend at VGS . . .
that would take care of the problem for him."
Even had Patry acted alone with respect to the Com-
pany's failure to give the employees a full month's pay-
check, he would have been engaged in "protected concert-
ed activity." This is the clear teaching of such cases as
Alleluia Cushion Co.. Inc., 221 NLRB 999 (1975). Respon-
dent's brief, indeed, refers to the Alleluia case as being "ex-
actly in point with the present case." Respondent goes on
to quote at length from the Administrative Law Judge's
Decision, in which he found that the individual involved
was not engaging in protected concerted activity. As the
Board, in its 3-0 Decision, reversed the Administrative
Law Judge's findings and conclusion in this respect. the
case, of course, supports the General Counsel's position. In
any event, as I have already noted, the activities of Patry,
Fairley, and Aydogan were "concerted," in the dictionary.
as well as the statutory, sense of the word.
C. The Reprimands to Patrr and Aydogan and Patr's
Discharge
As noted above, Patry received a written reprimand on
September 1, 1977. This reprimand, as well as the one giv-
en to Aydogan the same day, followed hard on the heels of
the grievances filed with relation to the employees not re-
ceiving their August 25 paychecks. Patry had filed his
grievance the day before, on August 31. The demonstrated
hostility of Dismond toward the employees concerning
matters affecting the method of payment to them, includ-
ing his implied threat to discharge them if such complaints
continued, suffices to establish a prima facie case of dis-
criminatory motivation on Respondent's part. This is par-
ticularly true in the light of Patry's previous employment
record and Respondent's evaluations of both him and Av-
dogan).'
The nature of the reprimand given to Patry supports the
conclusiin that it was motivated by Patry's protected con-
certed activities. The reasons stated all concern Patry's al-
leged derelictions on August 31 and September 1. As found
above, Patry was not instructed by Randle to come to
Dismond's office the afternoon of August 31. Furthermore,
it was stipulated that Patry left Project Aid with his
supervisor's permission. As to the charges in the reprimand
concerning Patry having left for lunch without signing out
and forging a signout time for August 31, Respondent of-
fered no evidence in support thereof. Thus, the principal
thrust of the reprimand is without any factual foundation.
Even Randle's version of the facts, as set forth in detail
above, would show no felt need for Patry's presence in
Dismond's office on the afternoon of August 31. so as to
warrant a written reprimand and probation when Patrv (on
this assumption) reported to Dismond the next day.r
Twelve days later Patry was terminated. As set forth in
the termination letter, nothing new had been added, other
than the fact that Patry had written a "rebuttal" to the
reprimand letter and, most significantly, had filed unfair
labor practice charges at the National Labor Relations
Board Regional Office. The conclusion that the filing of
these charges triggered the discharge is inescapable, al-
though Patry's earlier protected concerted activities were
not forgotten by Respondent in making the discharge de-
termination. I conclude, for the foregoing reasons, that Re-
spondent violated Section 8(a)(1) and (4) by discharging
Patry on September 12.
The September I reprimand to Aydogan was similarly
motivated, I am convinced, by her protected concerted ac-
tivities. Her situation in this respect is virtually identical to
Patr)'s. The "reasons" stated for the reprimand either are
not borne out by the facts 2 or were of such small conse-
quence as to make highly unlikely their being the basis for
placing an employee who had received essentially "very
good" performance ratings on probation and giving her a
reprimand. Bolstering this conclusion is the treatment ac-
corded Aydogan in transferring her and in instructing her
to stop talking to other employees, both parts of an ob-
vious implementation of Dismond's earlier expressed ad-
monition to the employees concerning their even talking to
one another about the pay problems. Finally. Aydogan.
like Patry. had filed a grievance the day before Dismond
I he ealuation of Pairs shows "excellent" checked 7 times and "vers
good" 8 time, out of the 15 factors on the performance appraisal. In addl-
tlon. he wua, rated as "unusualls resourceful" in terms of "initiatle." "con-
sistenils maintains highest quaht i terms of qaallt of ht work." and "un-
usuall' high output" in terms of '"olume of work
Randle conceded that there u.a, nothing urgent ahout Patr seeing
Dismond. teslf\in nierel. "I chose to d It that das that 'as preroga-
tise
L2 As uith Ptr. Adoga.n did hare permission to lease the plant on
Augu.lg t I
PROJECT AID
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued the reprimand to her. I conclude that Respondent
violated Section 8(a)(1) by reprimanding Aydogan on Sep-
tember 1, 1977.
D. The Alleged Constructive Discharges
That Aydogan in fact resigned for the reasons stated in
her letter of resignation is clear, and thus a prima facie case
of "constructive discharge" has been presented by the
General Counsel. Thus, Respondent, having issued a repri-
mand to her based on her protected activities and having
changed her working conditions in order to prevent a re-
currence of such protected activities on her part, did in fact
set in motion the chain of events which resulted in her
resigning. Respondent at the hearing and in its brief at-
tempts to show that Aydogan's "marital problems" were at
the root of her "tension" and, in effect, caused her to re-
sign. It may well be that she was more susceptible to the
pressures exerted by the unlawful reprimand and the un-
lawful restrictions placed upon her in the light of her away-
from-work problems. But it was scarcely unreasonable for
Aydogan to decide to resign rather than continue to endure
those pressures.
A constructive discharge is not, by definition, a dis-
charge. Nor does the concept require that the perpetrator
intend that the victim resign, although that is often the
case. It suffices to establish a violation that the resignation
was caused by the treatment accorded and that the deter-
mination to quit would not have been unreasonable when
the treatment accorded is itself designed to forestall pro-
tected activity. John Dory Boat Works, Inc., 229 NLRB
844, 850-851 (1977), sets forth the applicable principles for
"constructive discharge" cases. As stated therein (at 851), "
. . .it is not the aggravated nature of choice imposed dis-
criminatorily upon an employee that gives to a finding of a
constructive discharge, but the fact that any such choice
was imposed at all for reasons proscribed by the Act." And
see the cases cited in footnotes 13 through 22 of the Ad-
ministrative Law Judge's decision adopted by the Board in
that case.
The case of Fairley, in my view, presents the other side
of the coin. His letter of resignation, set forth above, states
his reason as being "the conditions and situations sur-
rounding my employment per the conversation we [he and
Randle] had Friday, August 26, 1977." That conversation,
as Fairley testified, concerned his being called in by Ran-
die and upbraided for assertedly saying he would not work
on a particular committee. After Fairley explained that he
had not said that, Randle replied, "Oh, well, I was kind of
mistaken." Fairley also told Randle, during that conversa-
tion, that he was "tired of all those accusations and always
being accused of things by staff people at Project Aid when
they didn't have any proof or any knowledge, and that I
cou;dn't handle the pressure anymore and that I was re-
signing from Project Aid." The particular disagreement in-
volved in that conversation (with Randle in effect conced-
ing she was wrong) was unrelated to any protected
activities on Fairely's part. The other "accusations" re-
ferred to by Fairley in his testimony did involve the subject
of pay. But that earlier encounter between Randle and
Fairley occurred about July 20, long before Fairley re-
signed. It is clear, in my view, that the August 26 incident
was the dominant reason for his resignation. Constructive
discharge, as a term of art, must involve a provoked resig-
nation, and the provocation must be at least closely related
to union or other protected activities. Indeed, even an im-
mediate resignation by Fairley after the July 20 "unjust
accusation" would not have entailed a constructive dis-
charge. An accusation, even one related to a protected ac-
tivity, is "not the equivalent of the actual imposition of
unlawful conditions of employment...." Central Casket
Co., 225 NLRB 362, 363 (1976), and see the full discussion
concerning Alex Gonzales on pages 362 through 364 of
that case. For the foregoing reasons I conclude that Aydo-
gan was constructively discharged but that Fairley was
not. -
CONCLUSIONS OF LAW
I. Respondent, by impliedly threatening employees with
discharge if they engaged in protected concerted activities,
and by instructing them to cease engaging in such activi-
ties, has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
2. Respondent, by reprimanding employees William Pa-
try and Wanda Aydogan because of their concerted activi-
ties, has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
3. Respondent, by discriminatorily discharging employ-
ee William Patry, has engaged in unfair labor practice
within the meaning of Section 8(a)(1) and (4) of the Act.
4. Respondent, by constructively discharging employee
Wanda Aydogan, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. Respondent has not violated the Act in all other re-
spects.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
TilE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
William Patry and constructively discharged Wanda Ay-
dogan, I shall recommend that Respondent be ordered to
offer them immediate and full reinstatement to their for-
mer jobs, without prejudice to their seniority or other rights
and privileges. I shall further recommend that Respondent
be ordered to make them whole for any loss of earnings
they may have suffered as a result of the discrimination
against them by payment to them of the amount they nor-
mally would have earned, in the case of Patry from the
date of his discharge and in the case of Aydogan from the
I he sequence of events that resulted in Adogan's resignation occurred
prior to her filing charges on September 7. 1977. Accordingly. although I
have concluded that she was constructively discharged I find that this con-
structive discharge violated Sec. 8(al I I of the Act, but not, as alleged in the
complaint. 8(aM41.
PROJECT AID 751
date of her resignation, to the date of Respondent's offers
of reinstatement, less net earnings, to which shall be added
interest to be computed in the manner prescribed in F. 1W:
Woolworth Company. 90 NLRB 289 (1950). and Florida
Steel Corporation, 231 NLRB 651 (1977).'4
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case. and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '
Respondent, American and Indo-China Development.
a/k/a Project Aid, its officers, agents. successors, and as-
signs, shall:
1. Cease and desist from:
(a) Instructing its employees not to engage in protected
activities.
(b) Impliedly threatening its employees with discharge
because of their protected activities.
(c) Reprimanding, discharging, constructively discharg-
ing, or otherwise discriminating against employees in re-
gard to hire or tenure of employment or any term or condi-
tion of employment because they have engaged in activities
protected by Section 7 of the Act or filed charges with the
National Labor Relations Board.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the Act, except to the extent that
4 See. generall . /sk Plumlhin & Itarwn ( , 138 N I.RB 16 1962)
In the event no excepions are filed as prosided h Sec 12.4 of the
Rules and Regulations of the National I.ahbor Relations Board. the findings.
conclusions, and recommended Order herein shall. as prosided in Sec
102.48 of the Rules and Regulations. be adopted hb the Board mnd becomel
its findings. conclusions. and Order. and ill objections thereto hill he
deemed aived for all purpose,
such rights are affected by the proviso to Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is neces-
sar to effectuate the policies of the Act:
(a) Offer William Patry and Wanda Aydogan immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and priv-
ileges, and make them whole for an' loss of earnings theN
may have suffered, in the manner set forth in the section
hereof entitled "The Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents, for examination and copying. all pab-
roll records. social security payment records, timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its Houston, Texas, office copies of the at-
tached notice marked "Appendix." Copies of said notice
on forms provided by the Regional Director for Region 23,
after being duly signed by Respondent's representative.
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced. or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
davs from he date of this Order, what steps Respondent
has taken to comply herewith.
I1 Is FlRTIIER ORDERED that the complaint be. and it
hereby is, dismissed insofar as it alleges violations not
herein found.
1,In the cent thit this Order is enforced h .a udgment of .i t nited
Stiles ( tart of Appeals. the words in the notice reading "PoCted hb Order
of Ihe Nllllonal Ilhbor Relations Board" shall read 'Posted Prsulant to a;
.ludgmenlt of the L nited States Court of Appeals I.nforcing an Order of the
Nati)lonal I.hbor Relations Board"
PROJECT AID S1