Riley International Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1994

314 N.L.R.B. 785 (N.L.R.B. 1994)

785
314 NLRB No. 126
RILEY INTERNATIONAL CORP.
1 The Respondent has moved to reopen the record to introduce ad-
ditional evidence on the ground that it was not represented by legal
counsel at the hearing in this case because of insufficient funds to
pay for an attorney. We deny the motion as the Respondent has not
shown that the evidence it seeks to offer was newly discovered or
previously unavailable, or that extraordinary circumstances exist due
to the absense of counsel that would justify reopening the hearing.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In adopting the judge’s finding that the Respondent unlawfully
discharged employee Thomas Wagner, we note that, as Wagner
credibly testified, the Respondent told him that one of the reasons
for his discharge was that he urged employees to join together and
bring their complaints about wages and working conditions to man-
agement. The judge found that this protected activity ‘‘played a
prominent role in Wagner’s discharge.’’ For this reason, the General
Counsel has established a strong prima facie case of a violation in
Wagner’s discharge. We find that, on this record, the Respondent
has failed to show that it would have discharged Wagner in the ab-
sence of his protected concerted activities. Indeed, the judge found
little or no evidentiary support for the various other reasons that the
Respondent urged as grounds for Wagner’s discharge. Thus, we
agree with the judge that the Respondent has not met its burden
under Wright Line, 251 NLRB 1083 (1980), to rebut the General
Counsel’s prima facie case of a violation.
1 While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of
their testimony; therefore any testimony in the record which is in-
consistent with my findings is discredited.
Riley International Corporation and Thomas H.
Wagner. Case 21–CA–29277
August 18, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On February 2, 1994, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs,1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Riley International Cor-
poration, Carlsbad, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Brian Sweeney, for the General Counsel.
Jack M. Riley, of Carlsbad, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On Oc-
tober 5, 1993, I conducted a hearing at San Diego, Cali-
fornia, to try issues raised by a complaint issued by Region
21 on April 30, 1993, based on a charge filed by Thomas
H. Wagner on March 22, 1993.
The complaint alleged and Riley International Corporation
(Respondent) denied the Respondent violated Section 8(a)(1)
of the National Labor Relations Act (Act) by discharging
Wagner for complaining to the Respondent concerning wages
and working conditions of the Respondent’s employees, the
need for a meeting between the Respondent and the employ-
ees to resolve those complaints, and for discussing that need
for those purposes with other employees and attempting to
enlist their support in seeking a meeting with management to
discuss and attempt to resolve their mutual complaints.
The issues created by the foregoing are whether Wagner
engaged in the activities just set forth; if so, whether he was
discharged for engaging in those activities; and if so, whether
the Respondent thereby violated the Act.
The General Counsel appeared by counsel and the Re-
spondent appeared by its president, Jack M. Riley. Both were
afforded full opportunity to adduce evidence, examine and
cross-examine witnesses, argue, and file briefs. Both filed
briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs, and research, I enter the
following
FINDINGS OF FACT1
I. JURISDICTION
The complaint alleged, the answer thereto admitted, and I
find at all pertinent times the Respondent was an employer
engaged in commerce in a business affecting commerce
within the meaning of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
At all pertinent times the Respondent was engaged in the
business of modifying aircraft at the Palomar airport in
Carlsbad, California, employing a staff of aircraft mechanics.
At pertinent times Jack M. Riley was the Respondent’s
president, Daniel M. Erickson was the Respondent’s vice
president and successively the Respondent’s director of
maintenance and director of research and planning, George
Puthoff was the Respondent’s director of maintenance (suc-
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Both the employees and their supervisors freely engaged in dis-
cussions, during working hours, of subjects both related to and unre-
lated to their work. No restrictions were ever placed on their engage-
ment in those discussions.
3 The mechanics starting time was 8 a.m. and the workshift ended
at 4:30 p.m., with an unpaid lunch period midway during the shift.
Up to the time of the meeting, management did not require strict ad-
herence to the work schedule, and a number of mechanics had been
late in reporting to work, had been leaving the premises during
working hours, and had been ceasing work and leaving the premises
prior to the end of the shift.
4 Though no raises had been granted for over 2 years.
ceeding Erickson) and successively the Respondent’s parts
manager, Robert C. Harrell was the director of maintenance
(succeeding Puthoff), and at pertinent times Riley, Erickson,
Puthoff, and Harrell were supervisors and agents of the Re-
spondent acting on its behalf within the meaning of Section
2 of the Act.
The Respondent hired Wagner as an aircraft mechanic in
November 1990. He remained in that position until his dis-
charge on February 19, 1993.
Erickson was the Respondent’s director of maintenance
until the summer of 1992, when he became the Respondent’s
research and development director (retaining his vice presi-
dency), and Puthoff succeeded Erickson as the Respondent’s
director of maintenance.
The succession was communicated to the aircraft mechan-
ics by Puthoff in the summer of 1992 at a meeting attended
by Erickson, Puthoff, and the mechanics.
During the fall and winter of 1992, and continuing into
early 1993, during both working and nonworking hours,
Wagner and other mechanics engaged in frequent conversa-
tions wherein they discussed their dissatisfaction with current
pay scales and working conditions.2
During his discussions with other mechanics concerning
their mutual complaints, Wagner consistently advocated the
mechanics join together in seeking a meeting with manage-
ment to discuss and resolve their complaints.
In January 1993, Puthoff conducted a meeting with the
mechanics, in the presence of Erickson and Harrell. He stated
Harrell was going to succeed him as director of maintenance
and he was becoming parts manager. He went on to state the
mechanics were to strictly adhere to the work schedule in the
future, i.e., to report for work at the designated starting time,
not to leave the premises during working hours, and not to
cease work until the designated end of the shift.3
Wagner asked Puthoff if there were going to be any job
evaluations and pay raises. Puthoff replied this wasn’t the
proper time to discuss the subject. Another mechanic stated
the Respondent ought to establish a seniority system with
systematic pay raises. Puthoff repeated his observation this
wasn’t the proper time for a discussion of that subject. Wag-
ner asked when was there going to be an appropriate time.
Puthoff replied he didn’t know, it wasn’t anything he could
do anything about, it was unlikely there would be any pay
raises for quite a while4 and it wasn’t the proper time to dis-
cuss the subject.
Following that meeting, Wagner and other mechanics con-
tinued discussing their mutual complaints over their wages
and working conditions during both their working and non-
working hours and Wagner continued advocating the me-
chanics join together in seeking a meeting with Respondent’s
management to discuss and resolve their complaints.
On January 29, 1993, Wagner contacted Puthoff, stating
the mechanics were dissatisfied over his failure to address
their complaints. Puthoff replied only Jack Riley could rem-
edy the complaints. Wagner stated perhaps Riley would re-
solve the complaints if he met with the mechanics and dis-
cussed their complaints with them. Puthoff said he talked to
Riley, Riley was not going to make any changes, and asked
Wagner if he was seeking strike action. Wagner denied that
was his intention. Puthoff said he would talk to Erickson and
get back to Wagner.
Later the same day Puthoff contacted Wagner, said he
talked to Erickson and Erickson said it wasn’t a good time
to seek strike action. Wagner replied Puthoff misunderstood
him, he wasn’t seeking strike action, he was seeking a meet-
ing between management and the employees to discuss and
resolve their complaints. Puthoff replied this wasn’t the time
for that, Riley would fire Wagner if he knew that was what
Wagner was seeking and he would lose his job if he sup-
ported Wagner.
Upset over the discussion, Wagner left work prior to the
end of the workshift.
Wagner worked the following day (a Saturday). There was
no mention by management of his leaving work the pre-
ceding day prior to the end of his workshift.
When Wagner came to work the following Monday (Feb-
ruary 1, 1993), Harrell told Wagner that Puthoff wanted to
talk to him. Wagner went to Puthoff’s office and Puthoff
upbraided him for leaving work early the preceding Friday
after he told Wagner not to promote strike action. Wagner
responded he was not advocating strike action, what he
sought was a meeting between management and the mechan-
ics to discuss and resolve their complaints. Puthoff apolo-
gized for misunderstanding Wagner, he was distraught over
disagreements he was having with Riley, which is why he
left the director of maintenance position. Wagner then apolo-
gized for leaving work early, stating he was distraught over
his inability to secure a meeting between the mechanics and
management to discuss and resolve their complaints. The two
parted on amicable terms.
Later the same day Harrell engaged Wagner in conversa-
tion, reciting his long history of employment in the aircraft
industry. In the course of the conversation, Wagner stated
Riley did not seem to appreciate the volume and quality of
the work the mechanics were performing. Harrell agreed.
Wagner stated he only wanted to secure a meeting to discuss
and resolve the mechanics’ complaints. Harrell replied it was
Riley’s company, he could do as he pleased. Wagner stated
the employees wanted a wage increase and improved work-
ing conditions and he wanted to secure a meeting between
management and the mechanics to discuss and resolve the
employees’ concerns. Harrell replied it sounded like Wagner
was promoting a union. Wagner said he didn’t like unions,
what he wanted was an opportunity for the mechanics to
meet with management to discuss improving their wages and
working conditions and if that was acting like a union, so
be it. Harrell replied Wagner should concern himself with
doing his job and not concern himself with other matters, it
was Riley’s company, he could do as he wished, and Wagner
should stop promoting group action.
787RILEY INTERNATIONAL CORP.
5 Mechanic John Brower displayed anger on an occasion an inves-
tor in the Respondent was present but was not disciplined or warned.
6 A discharge notice furnished to Wagner and signed by Jack Riley
simply stated Wagner was discharged.
7 The testimony of Wagner and two fellow mechanics to that effect
was undisputed and is credited.
Following that conversation, Wagner continued to advo-
cate group action to resolve the mechanics’ complaints, in
discussions among his fellow mechanics.
On February 19, 1993, after the lunchbreak, Harrell hand-
ed Wagner his paycheck plus an envelope. Harrell stated the
envelope contained Wagner’s final paycheck, Wagner was
discharged. Wagner asked why he was discharged. Harrell
replied Wagner was too slow, his production, and his attitude
was poor. Wagner protested Harrell never warned him about
his productivity and suggested his timesheets be reviewed.
Harrell replied he did not review Wagner’s timesheets but in
his opinion Wagner was too slow. Wagner noted he just
completed a job another mechanic was unable to perform, he
completed the job on time and Harrell complimented him for
his work on that job. Harrell responded he couldn’t recite
any specific deficiencies in Wagner’s job performance, but
Wagner knew why he was being fired. Harrell then referred
to the fact Wagner left work early on January 29, 1993,
though saying that was not the reason Wagner was fired.
Harrell also reminded Wagner he displayed anger when Har-
rell ordered him to stay beyond the end of his workshift to
complete a job because the other mechanics did not want to
work late. Wagner asked if it wasn’t true he did stay and
complete the job in question. Harrell acknowledged that was
true. Wagner asked if other mechanics displayed anger and
were discharged. Harrell replied in the negative.5
Harrell then referred to Wagner’s statements to him to the
effect the mechanics were dissatisfied with their wages and
conditions and stated Jack Riley understood Wagner was agi-
tating the mechanics to take strike action. Wagner responded
he was not advocating strike action, he was seeking a meet-
ing with management to resolve the mechanics’ complaints.
Harrell closed the conversation with the statement it didn’t
matter whether Wagner was advocating strike action or a
meeting, Riley found out what he was doing, he did not like
it, he and Riley had been in business a long time, and Wag-
ner couldn’t fool either of them.
Wagner contacted Erickson and asked Erickson if he could
give Wagner the specific reasons for his discharge, he really
didn’t know what they were. Erickson asked if Wagner re-
ceived a document reciting the reasons for his discharge.
Wagner said no6 and asked what the reason or reasons were.
Erickson said he didn’t know and suggested Wagner return
to the facility the following Monday.
Wagner returned the following Monday, contacted
Erickson, and asked if he still had a job. Erickson said he
tried to help, but Riley reprimanded him for attempting to
interfere and it was out of his hands.
On February 23, 1993, Wagner telephoned Erickson and
asked if Erickson knew why he had been fired. Erickson re-
plied he talked to Harrell and to Riley; Wagner was fired for
poor productivity and agitating employees to strike. Wagner
said that wasn’t true, he was productive and never received
a complaint over his work. Erickson agreed Wagner was a
good worker, but there still was the matter of his promoting
strike action. Wagner said that wasn’t true, he was seeking
a meeting. Erickson responded Riley believed Wagner was
promoting strike action and that was why he was fired.
Erickson reminded Wagner he told Wagner he tried to inter-
fere and was told to stay out of it and went on to say Harrell
was willing to change Wagner’s status from discharge to lay-
off so he could collect unemployment compensation. Wagner
said that wasn’t what he wanted. Erickson asked if Wagner
had gone to the labor board. Wagner replied he had not.
Erickson asked what Wagner planned to do. Wagner replied
he was thinking of hiring an attorney.
Wagner was never reprimanded or criticized for the quan-
tity or quality of the work he performed during his entire
employment by the Respondent. Wagner was a productive
employee throughout his employment.7
Wagner subsequently retained counsel, who wrote the Re-
spondent requesting a meeting to discuss Wagner’s reinstate-
ment. On March 12, 1993, Jack Riley responded with a letter
stating:
Six or eight months ago, he [Wagner] began to slow
down. His attitude toward his work soured. He became
insubordinate and refused to take instructions. He quit
twice, once in extreme anger. He constantly walked the
shop distracting other employees. He attempted to agi-
tate the employees to strike.
We have experienced a slow-down in our business as
have others over the last year and could not tolerate
Mr. Wagner’s lack of productivity and agitation.
On March 23, 1993, Jack Riley addressed a letter to Re-
gion 21 in which he essentially repeated the statements
quoted above as the grounds for Wagner’s discharge.
On March 30, 1993, Harrell submitted a document to state
authorities opposing Wagner’s receipt of unemployment
compensation on the ground Wagner was discharged for
cause, i.e., (1) for poor work production; (2) not following
work directives and instructions; (3) coming to work and
leaving work on HIS schedule (after being told in group
meetings and personal communication what the work hours
were); (4) continually talking with other employees during
worktime and slowing their work output too; (5) poor work
attitude (working on aircraft while angry) had frequently
used severe profanity in anger while loudly complaining
about the company and owner; (6) employee had quit twice
in anger, once while in the midst of a major aircraft job.
Shortly after Wagner was discharged, the Respondent
hired two aircraft mechanics, maintaining payroll levels at or
above the level which existed at the time Wagner was dis-
charged.
B. Analysis and Conclusions
1. Wagner’s activities
I have entered findings (based on the testimony of Wagner
and two other mechanics) over a time period beginning in
the fall of 1992 and extending to the time Wagner was dis-
charged (in February 1993), the mechanics voiced dis-
satisfaction over their wages and working conditions and
Wagner, in the course of discussions of those subjects with
other mechanics, continually urged other mechanics to jointly
seek a meeting between management and the mechanics to
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The General Counsel, not the Respondent, produced evidence
Wagner left work early on one occasion, January 29, 1993, going
on, however, to establish Puthoff condoned that action on Wagner’s
explanation of his reason therefor. Harrell also condoned that action,
telling Wagner his leaving work early on January 29, 1993, was not
a reason for his discharge.
9 Wagner’s testimony on most occasions his conversations with
other mechanics concerning their mutual concerns and his urging
group action occurred during and after working hours and during
breaks was undisputed, and is credited.
10 Meyers Industries, 281 NLRB 882, 887 (1986), affd. 885 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
discuss their complaints and secure their satisfactory resolu-
tion.
I have also entered findings in January 1993 that Wagner
asked Puthoff if there were going to be any job evaluations
and pay raises and received an evasive response on whether
and when those subjects could be discussed with manage-
ment; later the same month, Wagner renewed his request in
a meeting with Puthoff and was informed Jack Riley was not
going to respond to the employee complaints, both he and
Wagner could lose their jobs if Wagner continued to press
for changes in wages and working conditions and accused
Wagner of promoting strike action to secure improvements;
on February 1, 1993, Harrell accused Wagner of seeking and
supporting group action by the mechanics to resolve their
complaints and warned him to cease from such activity; on
February 19, 1993, Harrell cited Wagner’s seeking and sup-
porting group action by the mechanics to resolve their com-
plaints as ground for his discharge; and subsequent to Wag-
ner’s discharge, Jack Riley’s letters to Wagner’s attorney and
the Region cited Wagner’s ‘‘agitation’’ of his fellow me-
chanics as a ground for his discharge.
2. The reason or reasons for Wagner’s discharge
When Harrell notified Wagner he was discharged on Feb-
ruary 19, 1993, Harrell initially cited poor productivity and
a poor work attitude as the reasons therefor. In the ensuing
discussion, however, Harrell conceded he could not cite any
specific deficiencies in Wagner’s work performance, con-
ceded Wagner completed the work he was ordered to per-
form on overtime, conceded other mechanics were not dis-
ciplined for displaying anger at a work assignment, and fi-
nally noted Wagner’s recitation of the mechanics’ dissatisfac-
tion over their wages and conditions and his alleged agitation
of the mechanics to join together in seeking and securing a
meeting with management to discuss and resolve those com-
plaints as ground for his discharge.
Erickson subsequently conceded Wagner was a productive
employee and told Wagner that Jack Riley directed his dis-
charge because Riley believed Wagner was promoting strike
action.
Subsequently Jack Riley, in letters addressed to Wagner’s
attorney and the Region, claimed Wagner was insubordinate,
refused to take instructions, quit twice in extreme anger, dis-
tracted other employees, and stated Wagner was fired be-
cause business had slowed down and the Respondent could
not tolerate Wagner’s alleged lack of productivity and ‘‘agi-
tation’’ of his fellow mechanics (echoing Harrell’s February
19, 1993 statements).
Still later, Harrell supplied a written statement to state au-
thorities stating Wagner was discharged for cause, citing al-
leged poor production, failing to follow work directives, ar-
riving at work late and leaving early, distracted other em-
ployees from work during working hours, and failed to per-
form work by conversing with other employees, poor work
attitude, and quitting twice in anger.
The Respondent failed to adduce any evidence of record
refuting the testimony of Wagner and two fellow mechanics
Wagner was a productive employee and recognized by man-
agement as a productive employee; failed to produce any evi-
dence Wagner was insubordinate and failed to follow work
directives; failed to produce any evidence Wagner refused to
take instructions; failed to produce any evidence Wagner quit
twice in anger; failed to produce any evidence Wagner came
to work late and left early;8 failed to establish either Wag-
ner’s productivity or the productivity of any other employee
was affected by admitted conversations between Wagner and
other employees concerning their complaints; and failed to
produce any evidence Wagner constantly walked the shop
distracting other employees.9
The General Counsel established by evidence of record
Wagner was discharged for advocating group action among
the mechanics to resolve their complaints over their wages
and working conditions and bringing those complaints to
management’s attention and seeking management agreement
to meet with the mechanics to discuss and attempt to resolve
those complaints (Harrell’s statements to that effect to Wag-
ner at the time Wagner was discharged; Jack Riley’s letters
corroborated Harrell’s statements; and Erickson’s statement
to that effect subsequent to the discharge).
In 1986, the Board stated:
our definition of concerted activity . . . encompasses
those circumstances where individual employees seek to
initiate or to induce or to prepare for group action, as
well as individual employees bringing truly group com-
plaints to the attention of management.10
Applying that definition, the Seventh Circuit in 1990 held
an employer violated Section 8(a)(1) of the Act by dis-
charging an employee for bringing a group complaint about
the timing of employee training sessions to management’s at-
tention (NLRB v. Colders Furniture, 907 F.2d 3062 (7th Cir.
1990)); in 1987, the Board held an employer violated Section
8(a)(1) by discharging an employee in the mistaken belief the
employee was engaging in union activities when the em-
ployee complained to other employees and the employer
about the employer’s lunch policy (Salisbury Hotel, 283
NLRB 685 (1987)); the Board held similarly in 1988, where
the employer discharged an employee for bringing a group
complaint to management’s attention (Hamilton Plastics, 291
NLRB 529 (1988)); and in 1991 the Board held an employer
violated the Act by discharging an employee for bringing
common employee complaints to management in an effort to
resolve them (Alpha Resins, 307 NLRB 1219).
It is abundantly clear under the line of cases just cited
Wagner was engaging in concerted activities protected under
Section 7 of the Act when he discussed common employee
complaints with other employees concerning their wages and
working conditions and when he urged they join together in
seeking a meeting with management to discuss and resolve
those complaints, as well as when he brought those common
complaints to management’s attention and urged management
to schedule a meeting to discuss and resolve them.
789RILEY INTERNATIONAL CORP.
11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982).
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
It is also clear that activity played a prominent role in
Wagner’s discharge, as displayed by the Jack Riley letters
and the Erickson, Puthoff, and Harrell statements made to
Wagner regarding the reasons for his discharge recited here-
tofore.
The only remaining question is whether, applying Wright
Line11 the Respondent met his burden of establishing Wag-
ner would have been discharged irregardless of his engage-
ment in the concerted activity protected by the Act recited
above.
The Respondent failed to meet that burden.
I therefore find and conclude Wagner was discharged for
engaging in concerted activities protected under Section 7 of
the Act, namely, for discussing common employee com-
plaints over wages and working conditions with other em-
ployees, seeking their support for requesting a meeting with
management to discuss and resolve those complaints, and
bringing those complaints to management’s attention accom-
panied by a request for a meeting between management and
the employees to discuss and resolve those complaints.
3. The alleged violation
Under the line of cases cited above, the Board has held,
with court approval, the discharge of an employee for engag-
ing in the activities recited above is violative of Section
8(a)(1) of the Act.
I therefore find and conclude the Respondent violated Sec-
tion 8(a)(1) of the Act by discharging Wagner for engaging
in concerted activities protected under Section 7 of the Act.
CONCLUSIONS OF LAW
1. At all pertinent times the Respondent was an employer
engaged in commerce in a business affecting commerce
within the meaning of Section 2 of the Act.
2. At pertinent times Jack Riley, Daniel Erickson, George
Puthoff, and Robert Harrell were supervisors and agents of
the Respondent acting on its behalf within the meaning of
Section 2 of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
discharging Thomas Wagner for engaging in concerted ac-
tivities protected by Section 7 of the Act.
4. The aforesaid unfair labor practice affected commerce
within the meaning of Section 2 of the Act.
THE REMEDY
Having found the Respondent engaged in an unfair labor
practice, I recommend the Respondent be directed to cease
and desist therefrom and take affirmative action designed to
effectuate the purposes of the Act.
Having found the Respondent unlawfully discharged
Thomas Wagner, I recommend the Respondent be directed to
reinstate Wagner to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
to make Wagner whole for any loss in earnings and benefits
he may have suffered as a result of the discrimination prac-
ticed against him, with the pay and interest thereon he is en-
titled to receive computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950); and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Riley International Corporation, Carlsbad,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees for engaging in concerted ac-
tivities protected under Section 7 of the Act, to wit, dis-
cussing with other employees common complaints over
wages, hours, or working conditions; urging other employees
to join together in seeking a meeting with management to re-
solve those complaints; and bringing those complaints to
management’s attention coupled with a request for a meeting
between management and the employees to discuss and re-
solve those complaints.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Thomas Wagner immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him
whole for any losses in wages and benefits occasioned by the
discrimination practiced against him, in the manner set forth
in the remedy section of this decision.
(b) Expunge from its files any reference to the discharge
of Thomas Wagner and notify Wagner, in writing, this has
been accomplished and the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facilities in Carlsbad, California, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of the no-
tice, on forms provided by the Regional Director for Region
21, shall be immediately signed and posted by a authorized
representative and maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge our employees for engaging in
concerted activities protected under the Act, namely, for dis-
cussing with other employees complaints over rates of pay,
wages, hours, and working conditions; for urging other em-
ployees to join together and seek a meeting of employees
and management to discuss and resolve such complaints; and
for bringing such complaints to management’s attention and
requesting a meeting of employees and management to dis-
cuss and resolve such complaints.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees for exercising their rights
guaranteed under Section 7 of the Act.
WE WILL offer Thomas Wagner immediate and full rein-
statement to his former position with all rights and seniority
restored, and WE WILL make him whole for any losses in
wages and benefits he suffered by virtue of our unlawful dis-
crimination against him, with interest on the sum or sums
due.
WE WILL remove from our files any reference to his un-
lawful discharge, advise him in writing this has been done,
and that his discharge will not be used against him in any
way.
RILEY INTERNATIONAL CORPORATION