Timet

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1180 (N.L.R.B. 1980)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Timet, A Division of Titanium Metals Corporation
of America and Jacob Reed. Case 8-CA-12170
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 31, 1980, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed a brief in support of the Decision,
and the Respondent filed a motion to reopen the
record.
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,' find-
ings,2 and conclusions3 of the Administrative Law
Judge, as modified below, and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge
that employee Jacob Reed was unlawfully dis-
charged for his complaints and for drafting and cir-
culating a letter in which he offered to represent
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note that no exceptions have been taken to the Administrative Law
Judge's finding that the Respondent did not separately violate Sec. 8(a)(l)
of the Act by coercive statements.
2 The Administrative Law Judge inadvertently found that Jacob Reed
gave those employees and the foreman present in the physical testing lab-
oratory foreman's office copies of his letter on June 23. The record
shows that Reed testified that he showed or told the foreman and several
employees in that room about the letter, not that he gave them copies
The Administrative Law Judge also inadvertently found that the Re-
spondent had not employed a product meatallurgist in the forged prod-
ucts department "for years nor was one contemplated in the future." The
record shows that the Respondent had a product metallurgist in that de-
partment from September 15. 1975, until October 23. 1977 (but that this
was the only one since 1971), and that the business level and technical
refinements dictated when another would be required. However we find
that the Administrative Law Judge's error as to when a product metal-
lurgist was employed in the aforesaid department does not affect the cor-
rectness of the Administrative Law Judge's finding that Reed was not a
supervisor or a managerial employee. C World Oil Co., 211 NLRB 1024.
1024-25 (1974); Massachusens Mohair Plush Company, 115 NLRB 1516.
1523 (1956).
3 The Respondent correctly contends that the Administrative Law
Judge erred in stating that Reed averaged raises 2 percent greater per
year for 1970-77. with the exception of 1976. than those received by his
successor. Jim Myers. The record shows that Myers was not hired until
1975 and has earned a higher raise than Reed for each year since then.
However, a comparison of the raises of Reed and Myers is not necessary
to our adoption of the Administrative Law Judge's conclusion that the
Respondent discharged Reed for his protected concerted activity
251 NLRB No. 157
employees to management to obtain a cost-of-living
adjustment. In finding that this conduct was con-
certed activity, we do not find it necessary to rely
on that part of the Administrative Law Judge's dis-
cussion regarding complaints by an individual em-
ployee in an effort to enforce provisions of a col-
lective-bargaining agreement inasmuch as in the in-
stant case there is no collective-bargaining agree-
ment. In addition, besides those cases cited by the
Administrative Law Judge in finding that the
above-described conduct amounted to protected
concerted activity, 4 we rely on Hansen Chevrolet,
237 NLRB 584, 590 (1978); Empire Gas, Incorporat-
ed, 224 NLRB 628, 630 (1976), enfd. 566 F.2d 681
(10th Cir. 1977); and Ross Valley Savings & Loan
Association, 194 NLRB 270, 276 (1971) (see also fn.
15 at 276).
The Respondent has filed a motion to reopen the
record in which it contends, inter alia,5 that Reed
has forfeited any right to reinstatement he might
have had by virtue of a letter Reed distributed
after the issuance of the Administrative Law
Judge's Decision. In that letter, Reed stated that
"prefabricated exhibits were placed into evidence
and false testimony were [sic] given by some
TIMET personnel" in the instant proceeding, and
that Respondent "faked pretenses for [his] abrupt
termination .... " He also repeated his offer,
made in his June 22, 1979, letter, to represent the
Respondent's employees, although expanding the
scope of those matters concerning which he of-
fered to be a representative, stating, "Any party
wishing his deserved share of remuneration for his
labors and more importantly freedom from ex-
pressed and implied tyranny can depend on me as a
spokesperson."
We do not find Reed's distribution of this letter
to be the extraordinary situation required by the
Board to deny an unlawfully discharged employee
his right to reinstatement. See Truck Drivers, Oil
Drivers, Filling Station and Platform Workers Union,
Local No. 705, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, 244 NLRB No. 124 (1979). We find this
especially to be the case in view of the Administra-
tive Law Judge's general crediting of Reed and
discrediting of the Respondent's witnesses where
any conflict of testimony existed, and our adoption,
supra, of that credibility finding, as well as the pro-
tected concerted nature of the letter itself (because
4 Member Penello finds it unnecessary to rely on Alleluia Cushion Co..
Inc., 221 NLRB 999 (1975).
5 The Respondent also, in its motion to reopen the record, states that
since the hearing it has, on January 2, 1980, hired a product metallurgist
for the forged products department. However. such evidence is immateri-
al to the question of Reed's alleged supervisory status 18 months earlier.
TIMET, A DIVISION OF ITANIUM METALS CORPORATION OF AMERICA 1181
it reiterates the June 22 offer to represent other
employees concerning a matter of common con-
cern, salary, which we have found above to consti-
tute protected concerted activity, and because it
comments on an employee's unlawful discharge,
which the Board has ruled to be protected concert-
ed activity). See M Restaurants, Incorporated, d/b/a
The Mandarin, 228 NLRB 930, 931-932 (1977).
On the basis of the foregoing, we conclude that,
assuming arguendo that the evidence that the Re-
spondent offers to adduce is true, it would not alter
our decision to adopt the Administrative Law
Judge's recommended Order. We shall therefore
deny the Respondent's motion to reopen the
record.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, TIMET, A Di-
vision of Titanium Metals Corporation of America,
Toronto, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge:
This case was heard by me in East Liverpool, Ohio, on
February 22 and 23 and March 12, 1979. The charge was
filed by Jacob Reed against TIMET, a Division of Titan-
ium Metals Corporation of America, herein called the
Employer or the Company, on August 4, 1978,1 and the
complaint was issued by the Regional Director for
Region 8 of the National Labor Relations Board, herein
called the Board, on September 14. The complaint al-
leges that the Company improperly discharged Reed on
June 23 because he had engaged in protected concerted
activities, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended (herein called the
Act). 2 Reed had strongly protested or complained about
the amount or percentage of salary increase he was
about to receive under a newly instituted salary increase
system, and took certain affirmative action to emphasize
and remedy his dissatisfaction, including volunteering to
be the employees' representative "in approaching upper
I All dates hereafter are in 1978, unless otherwise indicated.
2 The pertinent parts of the Act provide as follows:
Sec 8. (a) It shall be an unfair labor practice for an employer--(l) to
interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7
Sec. 7. Employees shall have the right . to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection
management." Within hours he was discharged. Reed
was a graduate metallurgist, and, thus, a professional and
salaried employee. He had worked 10 years for the Com-
pany. The Company maintains that Reed was a manage-
rial or supervisory employee and not protected by the
Act, and additionally that he was discharged for good
cause. The salaried and professional employees were not
organized or represented by any union or labor organiza-
tion, but the Company's production and maintenance em-
ployees had been organized for many years.
Upon the entire record including my observation of
the demeanor of the witnesses,3 and after due considera-
tion of the briefs filed herein by the General Counsel and
the Company, 4 I make the following:
FINDINGS OF FACT
1. JURISDICTION
The pleadings and admissions herein establish the fol-
lowing jurisdictional facts. The Respondent Company is
and has been at all times material herein a corporation
duly organized under and existing by virtue of the laws
of the State of Delaware with its principal place of busi-
ness in Pittsburgh, Pennsylvania. It maintains an operat-
ing or manufacturing facility in Toronto, Ohio, the sole
facility involved herein, where it is engaged in the busi-
ness of processing titanium metal. Annually, in the
course and conduct of its business operations, the Com-
pany ships goods valued in excess of $50,000 from its
Toronto, Ohio, facility to points located outside of the
State of Ohio. Thus, and as admitted, I find and con-
clude that the Company is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. The "employee" status of Reed will be considered
later in the decision.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Summary of the Evidences
Jacob L. Reed was a graduate metallurgist from Penn
State University. He was employed as such by the Com-
pany in December 1967 and was discharged on June 23,
1978. From 1967-70 he worked in the "technology lab,"
and was then moved to the production facility where he
a The facts found herein are based on the record as a whole and my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with
due regard for the logic of probability, the demeanor of the witnesses,
and the teaching of .VL.R.B. v. Walton Manufacturing Company Lo-
ganville Pants Co., 369 U.S. 404, 408 (1962). As to those testifying in con-
tradiction to the findings herein, their testimony has been discredited
either as having been in conflict with the testimony of credible witnesses
or because it was in and of itself incredible and unworthy of belief All
testimony has been reviewed and weighed in light of the nrire record
4 The briefs were excellent and counsel should be commended They
were complete, highly professional, informative. and extremely helpful
· The following includes a summary of the testimony of the witnesses
appearing in the case The testimony will appear normally in narrative
form, although on occasion some of it will appear as actual quotes from
the transcript The narrative represents a summary of what the witnesses
themselves stated, without credibility determinations unless indicated, and
does not necessarily reflect my ultimate findings and conclusions in this
case
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked in various departments until December 12, 1977,
when he was assigned to the forged products department
as the department metallurgist. His annual salary was ap-
proximately $26,000 a year and he was supervised by
Edward Bohanek, the forged products department man-
ager. The plant manager was James Page and, according
to Reed, Page told him his most important function in
the department was yield improvement.6
In September 1977, the Company announced that it
was implementing a previous change in its salary policy
for exempt salaried employees (which included Reed and
other metallurgists). This change involved a reduction in
the flat percentage increases across the board, and in-
creasing individual "merit increases." Reed testified that
he was unhappy with this change, and upon its an-
nouncement came his first and initial thoughts of the pos-
sibility of organizing salaried employees. However, he
did nothing regarding other employees and took no af-
firmative action towards any such organization until
June 22, when some time after lunch Bohanek told him
that he had received only a 4-percent salary increase.
Reed replied that this increase was "ridiculous" in light
of all the accomplishments he had been responsible for
and which were benefiting the Company. Bohanek re-
sponded that he felt the raise was "adequate," and they
both commenced a rather lengthy discussion about the
matter, Bohanek indicating that Reed should not com-
plain about the raise because he was the highest paid me-
tallurgist in the plant, again indicating that the raise was
adequate. After several more interchanges between the
two, Bohanek asked Reed "what do you think you can
do?" to which Reed replied "I can organize." Bohanek
then responded "I will tell [plant manager] Page," and
left. According to Reed, this conversation took place
about I or 1:15 p.m., and immediately after this conver-
sation Reed then perceived that, if he could represent all
the salaried employees, he would attempt to get a cost-
of-living adjustment in their contract. This thinking
prompted Reed to draft a letter (first in a handwritten
draft) to all salaried employees on the subject of cost-of-
living salary increases, and in this letter he volunteered
to be the employees' representative in approaching man-
agement on the subject, concluding in the letter that "a
reasonable response to [such cost-of-living increases]
would eliminate support to organize salaried-exempt per-
sonnel to negegotiate all wage and fringe benefits."
When he finished his handwritten draft of the letter,
forged products superintendent (general foreman)
Andrew Fekete came into his office, whereupon Reed
told him about his 4-percent raise and showed him the
draft of the letter, indicating that he was going to send it
out to all the "exempt people." Reed related that he
showed the letter to Fekete because Fekete was a sala-
ried-exempt employee, and at that point he "didn't know
who [he] could organize .... " After Fekete left he
then asked employee Al Arabia if he would type the
I Among other things, Reed's duties included the preparation of a
monthly "yield report" from customer invoices, which reflected weight
shipped to customers. Reed's complete and written job description was
also admitted into evidence.
letter, and Arabia agreed.7 Reed then went to the com-
puter room where three other employees were present.
and there he obtained a printout listing of all salaried em-
ployees. According to Reed, all of this transpired before
3 p.m.
Reed testified that on the following day (June 23) he
arrived at work approximately 7:15 a.m. and that he
found the letter, typed by Arabia, lying on his desk.8
Reed indicated that he showed the letter to employee
Bernie Kane and then made zerox copies of the letter,
expressing dissatisfaction with his 4-percent raise to an-
other employee Don O'Brien. Reed then went to Quality
Control Manager Roger Broadwell's office for a pre-
planned meeting, and on learning that Broadwell was the
only person who was then present, he asked Broadwell if
he could make a copy of "something personal," to which
Broadwell responded "Yes" but indicated that "[he
didn't] want to know about it." Reed related that he then
left Broadwell's office and ran into employees Jim Stone
and Joe Bennett, to whom he complained about his raise
and handed copies of the letter. Reed then went to the
physical testing laboratory foreman's office, where he
again complained to several employees and handed out
several copies of the letter, including one to the foreman.
Then he went back to Broadwell's office for the meeting,
during which he told Broadwell about his 4-percent
raise, to which Broadwell responded, "You got to be
kidding." Reed then testified that soon after the meeting
he was paged to come to Plant Manager Page's office.
lie responded immediately and on arrival he was con-
fronted not only by Page but his supervisor, Bohanek.
Page then stated that he was unsatisfied with Reed's
work performance. Reed, apparently very surprised, de-
fended his record and pointed out some of the significant
contributions, indicating that he had never made any
mistake that had cost the Company any money. Page
then added that he was "a bad influence on the work
force and [they] must part company." Page also related
that he knew Reed had complained to Bernie Kane earli-
er that morning. Reed then pleaded that he had four
children and that his wife was pregnant, to which Page
responded that Reed was a "malcontent . . . [and
wouldn't] even be happy with a six or eight percent
raise." Reed responded that he would be satisfied with
such a raise because it would not be "regressive." Page
further stated that he had another employee who was
"willing to take [his] job." After Reed left Page's office
he talked to Industrial Relations Manager Bill Hagy,
who explained that he would be given "two weeks ter-
mination pay."
Reed testified that in 1977 he had received a 10-per-
cent wage increase and that his most recent job evalua-
tion was accomplished by his immediate supervisor, Bo-
hanek on May 19, and that during this evaluation the at-
' Arabia was a "technical" forged product department employee who
was apparently paid hourly. and was in a unit of such hourly employees
who were at that time represented by a union Arabia was not called to
testify in this case
t The letter also had an attachment which was a form providing for a
"yes" or "no" answer to whether or not the employee wanted Reed to
be his "representative to approach upper-management regarding Icost-of-
living salary adjustments] "
TINET. A DIVISION OF ITANIUM META S CORIPORAlION OF AIERICA Il 3
mosphere was "extremely cordial." without any indica-
tions of any such dissatisfaction. ' Reed further indicated
that I week before he was discharged. Bohanek had in-
vited him to a party at his home. Reed testified that
while in the forged products department he substituted
as a foreman on two occasions, once for I day and once
during the week of June 2, at his request to "work more
closely with people." However, Reed indicated that
during this week he also spent approximately one-half of
his time performing his regular duties as the department
metallurgist. Otherwise, he never had any supervisory
responsibilities of any nature while in the department,
and no individual worked under him.
On cross-examination, Reed was asked about several
"mistakes" that were made on two orders in late May
and early June. The customers involved were "Cal-
Drop" and "Arcturus," and Reed denied having been in-
volved in any such mistakes regarding these orders. He
did indicate that there was a problem earlier in the year
with a "Smith Clayton" order. This problem involved
Quality Control Manager Roger Broadwell and Reed's
immediate supervisor, Ed Bohanek. According to Reed,
Broadwell had asked him to "watch the process" regard-
ing the Smith Clayton order, and Bohanek did not like
Broadwell's intercession with Reed, as Bohanek was his
supervisor and not Broadwell. As a result, Reed drafted
and sent an admittedly "facetious" letter to Bohanek
about the matter, sending copies to several individuals in-
cluding Broadwell and Plant Manager Page. According
to Reed, Bohanek agreed with the contents of the letter,
but suggested that the letter would not "do [him] any
good." In this letter Reed indicated that he could not
always "watch the process," and suggested that Broad-
well work nights and weekends to perform this function
himself. Reed claimed that he felt as though he had been
caught in a "power struggle" between Broadwell, Bo-
hanek, and possibly others.
Andrew Fekete testified as the superintendent of the
forge products department. As such, however, he had no
control or supervisory responsibility over Reed. Fekete
testified that on June 22 Reed showed him the draft of
the letter, and that he glanced at it and Reed then said
that he did not think he should read it all, indicating that
it was about "representing a faction in the plant as far as
getting [cost-of-living adjustments] for them, and do
away with the inequities as far as they were giving
raises." Fekete indicated that he responded by telling
Reed that he did not think he should "write that," but
that he told no one about the letter that day, and that
about 10 a.m. the following morning (June 23) he saw
Bohanek and John Morris (superintendent of the condi-
tioning department) together, and that Bohanek stated
that Reed was going to be terminated. Fekete further re-
9 The evaluation was admitted into evidence and can best be charac-
terized as neither detrimental nor overly complimentary to Reed. it was
the first evaluation that Reed had ever recelsed. emanating apparently
from a newly established system. The evaluation covered the period from
June 1977 to May 1978 Reed had been transferred into the forged prod-
ucls department in December 1977 Thus, for over one-half the period
covered in the evaluation, he had not been supervised by Bohanek
Reed', overall performance ealuation" \as not discussed at this time
lated that at this time he told Morris about Reed's letter
that he h;ad seen the previous day. "
Joseph Bennett was the assistant supervisor of inspec-
tion, and Inspection Foreman James N. Stone worked
under him. Bennett and Stone worked in the quality con-
trol department, and both testified regarding their con-
versation with Reed the morning of June 23 relative to
his letter. According to Bennett, he was in his office
talking to Stone between 9:30 and 10 a.m. when Reed
came in complaining about his raise, and handed him a
copy of the letter which he glanced at and, in turn,
handed to Stone. Bennett testified that as Stone was
reading the letter, Bennett's supervisor, Brown came in,
and the letter was "sort of put away." According to
Bennett, later that day and at or about 1:30 p.m., he was
told by Industrial Relations Manager Hagy to write an
account of the earlier incident involving Reed and the
letter.
James Page testified as the plant manager, a position
which he had occupied for some year and a half. He had
worked in the general field at least 10 years, approxi-
mately 6 of which had been with the Company, and at
one time he was a metallurgist in the forged products de-
partment. Page explained that the Company's main prod-
uct is titanium, a metal intermediate in density to steel
and aluminum, having a high strength to weight ratio,
and a good resistance to corrosion. At the Company's
Toronto facility involved in this case, titanium ingots are
received from the Company's Henderson, Nevada, plant,
and were then forged into various shapes such as
squares, slabs, or tubing. Titanium is widely used in the
manufacture of jet airplanes, is expensive (7 per pound
as opposed to 10 to 15 cents per pound for carbon steel),
and is "highly critical" in that it is used in highly
stressed applications wherein if there were a metal fail-
ure, lives would be lost. Thus, Page explained, quality
control is extremely important and stringent. The Toron-
to plant ships between 40,000 and 50,000 pounds of titan-
ium per day, and the plant is composed of three operat-
ing (or manufacturing) departments, of which the forged
products department is one. There are also seven other
supporting departments.
Page testified that a department metallurgist had the
primary function of assuring that the material processed
in the department meets the requirements of the custom-
er at the minimal cost to the Company. At various times,
depending upon the level of business, each of the operat-
ing departments will employ a "product metallurgist" in
addition to the department metallurgist, and who would
report directly to the department metallurgist. According
to Page, the department metallurgist has "veto power"
over the hiring of a product metallurgist for that particu-
lar department and would also supervise and evaluate the
product metallurgist. I" Page went on to explain that the
department metallurgist does not supervise foremen or
"' The record is not clear as to w'hether Bohanek was still with Morris
or in the area when Fekete told Morris about the letter Fekete maml-
tained in his estimony that he did not nlentio the letter to Bohanek
" At all relesanl timne, Insin led in this case. there ,.as no "product
metallurgist" in the forged products department. headed h Reed since
December 177
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production and maintenance employees, although he
does on occasion give them "instructions . . .on how to
do certain things . . . [or] what to do in certain in-
stances." A department metallurgist has the "authority to
recommend discipline,"' 2 and occasionally substitutes for
a foreman when on vacation or ill. The department me-
tallurgist also "interfaced" with many other employees,
including "schedulers" and "metallographers."
Regarding Reed's transfer to the forged products de-
partment in December 1977, Page testified that Depart-
ment Superintendent Ed Bohanek had been that depart-
ment's metallurgist, and was elevated to the position of
forged products department manager in November 1977
when the previous department manager was "let go."
According to Page, Bohanek's first choice for his re-
placement as department metallurgist was Jim Myers,
who at that time was a quality control metallurgist, but
who had previously worked directly under Bohanek. At
this time, Reed was a department metallurgist in another
department, under a department manager who was a
"very demanding boss" and who had complained about
Reed's lack of motivation. Page perceived this situation
to be a personality conflict, and decided to choose Reed
over Myers to become the new department metallurgist
in the forged products department, under Bohanek. Page
related that he gave Reed "an opportunity in the new
department with a new boss to try and make another go
of it with the Company." Thus, Page continued, Reed
"held the job only about 6 months . . . was still learning
a lot about it and had not assumed all the responsibilities
of the job." Page went on to relate that Bohanek was
"not enthusiastic" about Reed, feeling that he was
making "minimally acceptable progress and in some
areas he was not giving the job enough attention . . .
particularly [not spending] . . . enough time on the oper-
ating floor learning about the equipment and learning
about the processing."
Page also testified about the Smith Clayton orders, in-
dicating that this customer was in England, and manufac-
tured forged products for jet engines manufactured by
Rolls Royce. Smith Clayton had complained about qual-
ity or "micro structure problems" and Page related that
the Company's president, Joe Byrne, Quality Control
Manager Broadwell, and himself had traveled to Eng-
land to discuss the matter direct with the customer.
Their conclusion was that the product they had been
supplying was "not adequate" for the customer's need.
Page went on to relate that the Smith Clayton problem
was the "only major control problem" that the plant was
experiencing at that time, and the solution for the prob-
lem was given to Bohanek as a "major objective,"
among other things, for his department in 1978. Page tes-
tified that on approximately March 20 he received a
copy of Reed's letter or memorandum to Bohanek re-
garding Broadwell's earlier request that Reed "watch the
[Smith Clayton] process." He then talked to Bohanek
about Reed's "attitude" reflected in the letter. Bohanek
assured him that he would "handle the problem," and
further see that the Smith Clayton orders got proper at-
12 Page, however, did not remember any instance where any such rec-
ommendation had been made
tention. Page testified that he first seriously considered
terminating Reed on June 22, after he had talked to Bo-
hanek that afternoon. Bohanek had informed him about 4
p.m. that all the exempt salaried employees had been told
about their raises and accepted them "graciously" except
for Reed. Industrial Relations Manager Hagy was also
present and "in on" at least part of this discussion with
Bohanek. Page related that Bohanek told him that Reed
was "furious," called the increases "ridiculous," and
thought the Company was "screwing" him. Page main-
tained that nothing about "organizing" employees was
mentioned, but that they did discuss Reed's "4 rating"
which resulted from not having been "on the floor
enough . . . not having full command of the job as yet,
and about several errors that had been recently made on
tracers which verified that he did not yet have full com-
mand of the job." t3 At the end of this discussion, Page
related that they decided to "live with [the problem] for
a while." However, Page testified that on the way home
that evening he again thought about the "problem" and
what could be done about it, concluding that one option
would be to terminate Reed and replace him with an-
other employee, and he then starting considering various
candidates for Reed's possible replacement, concluding
that the most obvious was employee Jim Myers, Bohan-
ek's original choice. Myers had been offered a job in the
company's sales department in California and had "reluc-
tantly" accepted that position, and his departure was im-
minent, although Myers did have some significant finan-
cial problems with the move. Page went on to testify
that, by the time he had arrived home, he had concluded
that terminating Reed was "probably . . . a good idea,"
and later on in the evening he called Bohanek to ascer-
tain his feelings. Bohanek indicated that he was "happy"
with the idea and the Myers replacement, but they both
decided to make the final decision the following morn-
ing. Before the evening ended, Page indicated that he
talked to Vice President of Operations Don Wruck in
Nevada about the termination, and also obtained the
"blessing" of the Company's president Joe Byrne to ter-
minate Reed. He also called Field Sales Manager Jim
Doyle in California for his blessing in not transferring
Myers. Page maintained that during all of these conver-
sations and earlier conferences, no mention was made of
any "organizing" ideas or efforts by Reed.
Page testified that the following morning (June 23) at
7 a.m., he met with Industrial Relations Manager Hagy
and Bohanek, and the decision to terminate Reed was
made. They then called Myers, told him that Reed was
being "reassigned" and offered Reed's job to Myers.
Myers requested time to think about the offer and talk to
his wife. At 9:30 a.m., according to Page, Myers accept-
ed the job, and at 10:30 a.m. he and Bohanek met with
Reed and told him that he was terminated. There fol-
lowed a lengthy discussion for several hours between the
three, Page and Bohanek stating their reasons for the ter-
mination, and Reed arguing and attempting to defend
la Page indicated that a department metallugist may review from 1,00{
to 2,000 such tracers a year This "4 rating" (not completely satisfactory)
was apparently not divulged to Reed during the May 19 evaluation with
Bohanek.
TIMET, A DIVISION OF TITANIUM METALS CORPORATION OF AMERICA 11 85
himself. During these discussions, Page indicated that he
told Reed he had learned from Bernie Kane that Reed
had again complained about his raise earlier that morn-
ing, and during the meeting in Broadwell's office. Page
again maintained that nothing was stated or discussed
about Reed's organizational activities, but Page conceded
he did tell Reed he was a bad influence on other employ-
ees, and that he had a bad attitude. Page further testified
that he found out about Reed's "organizing" letter after
lunch that day and after he had terminated Reed.
On cross-examination, Page identified a series of
"salary-action forms" regarding Reed, indicating that in
July 1977 Reed received a 10-percent increase for
"above-average performance" and continuous prog-
ress. 4 In 1976, Reed received a 9.1-percent increase for
"considerable improvement" and being cost and quality
conscious. In 1975 Reed received a 6.1-percent increase
for being "a very thorough individual and [doing] an ex-
cellent job in statistical type analysis," and in 1974 Reed
received a 12-percent "special merit increase" and an ad-
ditional 8-percent increase for performing "well" in his
job. Other increases were also received in 1970 and
1972.15 Page conceded that from these salary actions it
would appear that Reed was a good employee, but he
explained that during the period 1970-77 all employees
received favorable comments, which is the reason why
the evaluation system was "overhauled" in 19 7 8.' Page
also conceded that it was not unusual for an employee in
a new job to receive a "4 rating" as Reed did in May
1978, and that at the time he was not concerned about
Reed's rating, explaining that it was "exactly what [he]
would have expected." Page further related that it was
"very unusual" to terminate an exempt salaried employee
such as Reed, and that he had been involved in only one
such discharge, in November 1977.17 Page further testi-
fied on cross-examination that Reed's attitude "seemed
better" in 1978 after his transfer to the forged products
department, but that he felt Reed's 4-percent raise was
"fair" under the Company's new evaluation system, fur-
ther adding that three or four salaried employees got
similar raises and oe received less. Page summarized his
overall reason for terminating Reed as follows:
It was my feeling that he had a poor history with
the Company, was considered a marginal employee
by his last two superiors, was very unhappy with
the Company, was very unhappy with his salary,
and with both parties mutually dissatisfied with
14 Notwithstanding this evaluation. Page maintained that he considered
discharging Reed in September 1977 because of his "bad attitude." but
noting at the time, however, that he thought there was a personality con-
flict between Reed and his supervisor. Hiram Cotton
'5 Salary records admitted in the case indicate that increases for Jim
Myers during the period of 1970-77 were generally 2 percent lower than
those received by Reed except for 1976. when Myers received a total 14-
percent salary increase
In This overhaul incorporated, among other things, a new "salary in-
crease distribution guide" for raises in 1978. which was admitted into ei-
dence Each position had a salary zone with a minimum and maximum
salary within each zone Reed vWas in zone four, next to the last zone en-
titled "employee performance not completel) satisfactory
l This involved John Kosin ho was given -4 month' seerance pay
and 6 week's vacation for l978" Reed was given "tso eek's in lieu of
notice."
each other, I felt that the obvious solution was to
part company.
Lastly, Page conceded that he would not want the
exempt salaried employees to be represented by any
union, and specifically regarding Reed, he was "afraid of
. . [an employee like Reed] going around complaining
to other employees that the Company is unfair . . . this
is detrimental to the morale of the employees ... ."
Jerry H. Allen testified as the Company's director of
industrial relations, a position which he has held since
1973. His main office is in Pittsburgh, Pennsylvania, and
he has worked for the Company for over 15 years. Allen
is responsible for the administration, benefits, safety, and
legal relations for and on behalf of the Company at both
of the two manufacturing facilities (Toronto, Ohio, and
Henderson, Nevada), and at the Company's three sales
offices. In his capacity as director of industrial relations,
Allen visits the various plants at least several times each
month. Allen indicated that at the Toronto plant the ap-
proximately 450 production and maintenance employees
have been organized and represented by a union since
1957, and 92 technical and clerical employees since 1971,
and the approximately 10 guards since 1963.
Regarding the supervisory functions of a department
metallurgist, Allen testified that the job itself is a "grade
7" and this grade contains seven "factors" or categories
of duties and responsibilities. In two of the factors, factor
3 and factor 8, "credit" was given for some supervisory
functions. In factor 3, entitled "working with others,"
the supervisory functions included "interfacing" and "co-
ordinating" with other employees, divisions, or depart-
ments.'8 In factor 8, the supervisory function is to "lead
or direct one or more coworkers or associate or super-
vise employees performing simple elementary duties."' 9
Allen went on to testify that the department metallurgist
"will very often give direct instructions to the produc-
tion employees," although he conceded that he has never
observed any such instructions being given. Allen further
testified that he learned from the Company's president,
Joe Byrne, that Reed was dismissed because he "was
given an unfavorable rating . . . [and gave] no indication
that he planned to change."
Edward Bohanek testified as the forged products de-
partment manager, a position that he obtained in the fall
of 1977. He has worked for the Company since 1956, and
became the department metallurgist in the forged prod-
ucts department in 1973. When he was promoted to de-
partment manager, Reed took over his job as department
metallurgist in December 1977. He had earlier recom-
lh The "factor 3" description in the Company's "Job EFaluation
Manual," which was admitted into evidence, appears not to contain any
supervisory language The department metallurgist job is awarded a total
of 5 points out of a possible I I I points from this factor.
la The job evaluation manual reflects that the department metallurgist
job is awarded 40 points out of a possible 115 points from this factor
During Reed's service as the department's metallurgist im the forged
products department. he did not have an' "co.orkers" or an "associate."
and supervised no employees directly under or sutxrdinale to him Of
the to other operating departments. only one had a coworker or subor-
dinate "associate" (a product metallurgist) The job evaluation manual
does not compensate for such a lack of subordinates for long periods of
time
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended the hiring of Jim Myers in the fall of 1975 "for
eventual take-over of [his] job."
Bohanek testified regarding the "supervisory" status of
a department metallurgist. Regarding production and
maintenence employees, Bohanek indicated that if he
"noted any practices which may be deleterious, [he]
would inform the employee or the foreman or both, and
take remedial measures." Bohanek went on to relate that
on two occasions when he was department metallurgist,
he "recommended" to department managers that produc-
tion and maintenance employees be reprimanded. In both
instances, his recommendation was accepted. Bohanek
testified that while he was a department metallurgist,
"about three to five percent of the time during the year
was filled in as a substitute foreman." Bohanek explained
that the company feels it is "good experience for the de-
partment metallurgist to get some experience in [produc-
tion and maintenance] knowing that somewhere, some-
time he would advance in management." 20
Bohanek testified that on May 19 he evaluated Reed,
and noted that Reed had not yet "learned the process
equipment or the processing [to the extent] that he could
be on his own completely." He.further noted in the eval-
uation that Reed needed to spend more time on the floor
in "direct contact with operating mill personnel." There-
after, and on June 5, Bohanek turned in Reed's "overall
performance appraisal," which was to establish the per-
centage of pay increase he would receive beginning in
July. Bohanek explained that in this appraisal he checked
"Box No. 4," which indicated Reed's performance was
"not completely satisfactory." Bohanek also ranked Reed
10 out of 11 employees that reported directly to him.
There were three orders that Bohanek testified about re-
garding Reed and his alleged deficiencies. Bohanek ex-
plained that the Smith Clayton acount posed a quality
control problem, and earlier in 1978 he was given the
direct responsibility to reduce the problem. On March 17
Reed drafted a letter to him, minimizing the Smith Clay-
ton problem because it constituted a "nearly insignificant
. . product volume," and suggested that Quality Con-
trol Manager Broadwell worked "weekends and mid-
night shifts . . . to temper or inhance his . . . optimism."
Bohanek testified that he saw a draft of this letter and
discouraged Reed front sending the letter, but that the
letter went out, also with copies to four other individuals
including Broadwell and Plant Manager Page. Bohanek
felt that the letter reflected a "negative attitude in a
desire to correct the [Smith Clayton] problem." Bohanek
also testified about the "Arcturus" order, where he relat-
ed that Reed applied the "wrong sub-grade" resulting in
"misapplying the product which could be costly in terms
of delay .... " Bohanek, however, discovered the error
on May 23, and not only was the material "salvageable,"
but the error was corrected before shipment. The third
order that Bohanek mentioned was the so-called Cal-
Drop order. Here, Bohanek related that on June 3 he
discovered "inadequate sub-transis processing" in the
order that Reed had apparently but wrongfully ap-
1o In Bohanek's prehearing investigative affidavit, taken by a Board
agent, he stated that. as a department metallurgist, he considered himself
a part of management, but then adding that "the metallurgist was expect-
ed to move into management."
proved. Bohanek did concede that here also, the material
was salvaged and the error was corrected before ship-
ment.
Bohanek testified that after lunch but before 3 p.m. on
June 22, he told Reed that he was to receive a 4-percent
salary increase, amounting to $40 biweekly, for a total of
$27,000 annually. According to Bohanek, Reed then
went into a "verbal tirade," stating that the Company
was "screwing him" and that he could not live on such a
small increase. Bohanek replied that he was one of the
highest paid metallurgist in the Company and also one of
the highest paid salaried employees, but according to Bo-
hanek, Reed continued and was "very abusive." Reed
also stated that "he would work within the system to try
to correct the situation," but Bohanek maintained that
Reed said nothing about "representing" or organizing
other employees. Bohanek indicated that he thought
Reed, in his "correct the situation" remarks, meant that
he would deal directly with the plant manager, as Reed
had a "history of circumventing management in talking
to plant managers directly." Bohanek denied that he told
Reed he was going to convey his actions or remarks to
Plant Manager Page. Shortly before 4 p.m. that day, he
met with Plant Manager Page and told him of Reed's re-
action, but at this point no consideration was given by
either of them to taking any affirmative action against
Reed. Bohanek related that at 7:30 that evening Page
called him at home, and they discussed Reed's dissatis-
faction and the fact that they "were not happy with
[Reed's] performance." It was at this time and during
this telephone conversation, according to Bohanek, that
they both discussed "possible termination," but no deci-
sions were made. The following morning, June 23, Bo-
hanek testified that he met with Page at 7:30, and they
decided "it would be a good time to dissolve the mar-
riage."
They also decided to offer Reed's job to Myers, who
was immediately contacted, but requested some time
before deciding. In the meantime, Bohanek attended a
meeting with Quality Control Manager Broadwell and
Reed at 8 a.m. According to Bohanek, Reed again com-
plained about his raise but said nothing about "represent-
ing" other employees. Bohanek related that after this
meeting, he ran into Bernie Kane who informed him that
Reed was on a "tirade," but Bohanek maintained that
Kane mentioned nothing about Reed "organizing" em-
ployees. At 10 a.m. that morning, Bohanek met with
Page and told Page about Reed's "tirade" and soon
thereafter they called and met with Reed and discharged
him. Bohanek again maintained that no discussions re-
garding Reed's "representing" or "organizing" with
other employees were held, and that as of the discharge
meeting, he had no knowledge that Reed had engaged in
any such activity.
IIME 1, A DIVISION OF TITANIUM METALS CORPORATION OF AMERICA 1187
B. Evaluation of Law., Evidence. and Initial
Conclusions
I. Employee status of Reed
Reed, I find, was a "professional employee" within the
meaning of the Act. 2 ' This, alone, does not fix his status
as an "employee" within the meaning of the Act. If Reed
was additionally a "supervisor" under the terms of the
Act,2 2 or a "managerial employee" as has been judicially
defined,2 3 he would also be excluded from the "employ-
ee" protections of the Act. The Company urges this ex-
clusion in this case, but I disagree.
Reed, as a department metallurgist, had no part in for-
mulating and effectuating the Company's policies, or in
any decisionmaking. On the contrary, one of the alleged
reasons for Reed's discharge was his disagreements with
company policy, including the new salary increase
system and the emphasis on quality control regarding the
Smith Clayton orders. He never attended managerial or
supervisory meetings and had no actual, real, or effective
supervisory functions or powers. As Plant Manager Page
testified that the department metallurgist did not super-
vise foremen or production and maintenance employees
but, merely, on occasion, gave them "instructions .. . on
how to do certain things . . . or what to do in certain
instances." Page did indicate that the department metal-
lurgist had the "authority to recommend discipline," but
Page, not only as plant manager but as a former depart-
ment metallurgist, could not remember any instance
where such a recommendation had been made. Bohanek
testified that he made such a recommendation on two oc-
casions during his 4 years as department metallurgist,
with positive results. However, the record lacks evi-
dence that any such recommendations were part of the
21 Sec 2(12) of the Act defines the term professional employee" as
follows:
(a) any employee engaged in work (i) predominantly intellectual
and varied in character as opposed to routine mental, manual. me-
chanical, or physical work. (ii) involving the consistent exercise of
discretion and judgment in its performance: (iii) of such a character
that the output produced or the result accomplished cannot be stand-
ardized in relation to a given period of time: (iv) requiring knowl-
edge of an advanced type in a field of science or learning customar-
ily acquired hb a prolonged course of specialized intellectual instruc-
tion and study in an institution of higher learning or a hospital, as
distinguished from a general academic education or from an appren-
ticeship or from training in the performance of routine mental,
manual, or physical processes; or
(b) any employee, who (i) has completed the courses of specialized
intellectual instruction and study described in clause (iv) of para-
graph (a), and (ii) is performing related work under the supervision
of a professional person to qualify himself to become a professional
employee as defined in paragraph (a)
22 Sec 2(3) of the Act, in defining "employee," excludes supervisors.
Sec. 2(11) of the Act defines the term "supervisor" as follows:
[A]ny individual having authority, in the interest of the employer, to
hire, transfer. suspend, lay off, recall, promote, discharge, assign.
reward, or discipline other employees, or responsibly to direct them.
or to adjust their grievances or effectively to recommend such
action, if in connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature. but requires the
use of independent judgment
23 Those employees who "formulate and effectuate management poli
cies by expressing and making operative the decisions of their employer."
See N.L.R.B. . Bell .4erovpace Company. Division f le.itron. Inc.. 416
US 2,57 (1974)
department metallurgist's job responsibilities, or that any
such recommendations would normally be followed or
be effective.
The Company's organizational scheme at the Toronto
plant, considered as a whole, reflects an intention that
the metallurgist (including a department metallurgist)
was to be a technical and professional expert in process-
ing, without managerial or supervisory responsibilities.
The position was outside of the management and super-
visory chain of command. It was intended to take full
advantage of the individual's professional education and
knowledge as a metallurgist, not as a manager, salesman,
public relations man, supervisor, or foreman. The job de-
scription itself reflects this limitation or intention with
one exception regarding the supervision of one product
metallurgist. 2 4 However, Reed's forged products depart-
ment not only did not have a "product metallurgist," it
had not contained or employed one for years nor was
one contemplated in the future. I, thus, find and con-
clude that Reed was an "employee" within the meaning
of Section 2(3) of the Act, and as such subject to the
protections of the Act.
2. The nature of Reed's actions and whether they
were protected concerted activities under the Act
The implementation of the Company's new salary
policy for "exempt salaried employees" was announced
by letter in September 1977. Briefly, it stressed "merit"
over a "flat percentage increase," which Reed, whether
correctly or incorrectly, commonly referred to as a cost-
of-living increase. Reed was silent as to any open criti-
cism about this new policy until he learned the amount
of his raise June 22, although he did testify that "he
spoke to other employees about the letter" but that he
"didn't believe it."2 5 Reed apparently had no knowledge
of what his increase was to be, even after his May evalu-
ation by Bohanek, and apparently was unconcerned at
that time.2 6 After lunch on June 22 when Bohanek told
Reed he was receiving a 4-percent increase, Reed imme-
diately became upset, mad, and extremely vocal. Reed
testified that he stated "I can organize." and that Bo-
hanek replied "I will tell [Page]." Bohanek denied that
he mentioned Page, testified that Reed said "he would
work within the system to try to correct the situation,"
and further testified that he thought Reed meant that he
would go directly to Page with his complaints as Reed
24 The body of the department metallurgist job description contains 26
typed lines evenly distributed among four separate sections The last line
of the first section contains the language "supervise one (I) Product Me-
lallurgist engaged in monitoring operations to ensure processing proce-
dures and plans" The overall "summary" at the top of the job descrip-
tion does not mention the "Product metallurgist." nor is there any other
supervisory language anywhere in the entire description, which abounds
with words such as: outline, review. recommend, follow, observe, moni-
tor. investigate. answer. analyze. plan, conduct, write, develope. discuss,
comment, advise, keep informed. gather, and summarize
2S Reed's testimony is the only testimony or evidence in the case indi-
cating that the letter was discussed or was the subject (of concern by
anyone
26 The "overall performance appraisal" sheet indicating a "4" (not
completely satisfactory) w.as apparently filled out by Bohanek after the
evaluation session ith Reed The sheet's instructions reflect that it
"should he completed independently by the supervisor follo ing the per-
formance rc -iev, scsiil"
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had a "history of ... talking directly to plant manag-
ers." 27 Reed then drafted his letter, showed the rough
draft to his department superintendent, Andrew Fekete
(who was under Department Manager Bohanek), and
made arrangements for Arabia to type the letter. He then
went to the computer room and in front of three other
employees obtained a computer printout of all salaried
employees. The following day (June 23) Reed continued
complaining, and at 7:15 he picked up the typed letter,
showed it to Bernie Kane, made zerox copies of the
letter, and also complained to Don O'Brien. He then dis-
tributed copies of the letter to several other employees
including a foreman. At the meeting with Quality Con-
trol Manager Broadwell and Bohanek, Reed again com-
plained, and soon after the meeting he was called into
Plant Manager Page's office, and was discharged.
Even lacking union representation or a collective-bar-
gaining agreement, 28 individual action is protected con-
certed activity under the Act if the employee complains
about a matter of common concern to other employees
in the same circumstances. 29 Some difficulty arises how-
ever, in constraining "common concern,"3 0 or "individu-
al" as opposed to "concerted" action. In this case, there
is no evidence that other salaried exempt employees
joined in with Reed in his complaints. The Board has
long held to the somewhat controversial principal that
complaints by an individual employee in an effort to en-
force provisions of a collective-bargaining agreement
amounted to concerted activity, even in the absence of
interest of fellow employees.31 This principal appears to
become more acceptable where the employee's activities
had the object of initiating, inducing, or preparing for
group action, or had some relation to group action. 3 2
Additionally, the absence of outward manifestations of
27 The complaint, in accord with Reed's version, alleges Bohanek's
remark that he would tell Page as a separate violation of Sec. 8(a)(l) of
the Act. Both Bohanek and Page, throughout their testimony in this case,
deny they had any knowledge of any statements or outward intents of
Reed to "organize" or "represent" salaried employees until after Reed
was discharged on June 23. discredit their testimony in this regard and
the subject will be addressed subsequently in this Decision. I credit Reed
here regarding his "I can organize" remark, and Bohanek's mentioning of
Page. However, I do not find any violation of the Act. Regardless of the
vein in which Page's name was mentioned, in my opinion it did not con-
stitute a "threatened . . .reprisal" to Reed's complaints. It was neither so
intended, or taken as such by Reed, who I find wanted his feelings and
intentions made clear to the entire management.
28 Reed's discharge is alleged to be violative of Sec. 8(a)(1) of the Act
only since no "labor organization" is involved, as required in violations
of Sec. 8(a)3) of the Act.
29 Allen M. Campbell Company General Contractors, Inc., 245 NLRB
No. 129 (1979); Hugh H. Wilson Corporation, 171 NLRB 1040 (1968),
enfd. 414 F.2d 1345 (3d Cir. 1969), cert. denied 397 U.S. 935 (1970); The
Ohio Oil Company, 92 NLRB 1597 (1951); Halsey W Taylor Company,
145 NLRB 425, (1963); Guernsey-Muskingum Electric Cooperative. Inc.,
124 NLRB 618 (1959), enfd. 258 F.2d 8 (6th Cir. 1960).
30 To argue that salary per se was not a matter of "common concern"
would be obviously ridiculous.
s1 Interboro Contractors Inc., 157 NLRB 1295 (1966), enfd 388 F.2d
495 (2d Cir. 1966). The Circuits are split over whether to apply Interboro
as a test for concerted activity. The Second and Ninth Circuits have
given at least limited approval to the Interboro doctrine, and the Third,
Fifth, and Sixth Circuits have declined to follow the doctrine. See ARO.
Inc., 596 F.2d 713 (6th Cir. 1979), revising 227 NLRB 243 (1976).
32 N.L.R.B. v Northern Metal Company, 440 F.2d 881 (3d Cir 1971);
Mushroom Transportation Company. Inc. v. N.L.R.B., 330 F 2d 683 (3d
Cir. 1964).
support is not sufficient to establish that other employees
did not share Reed's interests or concerns.3 3 Reed had at
least planted the seed of ultimate group action,3 4 involv-
ing a matter of common concern to other employees.
Thus, I find and conclude, in accordance with the
Board's precedents, that Reed's actions constituted pro-
tected concerted activity.5
3. The Company's motivations in the discharge
Between midafternoon June 22 and approximately 10
a.m. June 23 when he was discharged, Reed had com-
plained about his raise to some 12 employees, at least
five of which were supervisors.3 s Also during this
period he showed or distributed his letter to at least
seven employees, at least two of which were supervi-
sors.37 Both Page and Bohanek described Reed's behav-
ior as "tirade." Reed also told Bohanek initially on June
22 that he could "organize." Both Page and Bohanek
knew of Reed's dissatisfaction but maintained throughout
that they had no knowledge of Reed's statements or in-
tentions to "represent" or "organize" the salaried em-
ployees, as reflected in his letter. I discredit their testi-
mony in this regard. With Reed's flurry of activity or
"tirade," during which time he brandished about his
letter, I find it incredible and beyond belief that Page
and Bohanek failed to learn about the letter and its ex-
pressed intentions before they discharged Reed. Bohanek
possibly had in the past some reservations about Reed,
but at least in part had adjusted to some of Reed's al-
leged faults, including his "history of circumventing
management and talking to plant managers directly." On
the other hand, Reed had worked for the Company for
over 10 years, had received better than satisfactory rat-
ings with substantial yearly salary increases. Plant Man-
ager Page testified that Reed's "attitude seemed better"
after his new assignment as department metallurgist in
the forged products department, and that Reed's -'4"
rating was "exactly what [he] would have expected" and
not unusual considering the 5 months Reed had been in
his new job. In his reasons for discharging Reed, Page
becomes inconsistent. He labeled Reed a "marginal em-
ployee . . very unhappy with the Company . . . and
with his salary. "According to Page since both Reed and
the Company were "mutually dissatisfied with each
other [he] felt that the obvious solution was to part com-
pany." Page was also "afraid of ... [Reed] going
33 Alleluia Cushion Co., Inc., 221 NLRB 999 (1975).
34 As put by Administrative Law Judge Norman Zankel in Jim Caus-
ley Pontiac. Division Jim Causley, Inc., 232 NLRB 125 (1977).
3 I do not here necessarily condone the manner and specifics of
Reed's actionS and behavior, although I do not find Reed to be guilty of
any misconduct in the traditional sense. In my opinion, any feelings on
my part and in these regards would serve no purpose here, and, thus,
have no place in this Decision.
3s On June 22 Reed complained to immediate supervisor and depart-
ment manager, Bohanek. his department supervisor, Fekete, and three
employees in the computer room On June 23, to employees Kane.
O'Brien, and several others in the physical testing laboratory, and to Su-
pervisors Bohanek. Broadwell, Stone. Bennett, and the foreman of the
physical testing laboratory
3' On June 22, he distributed letters to Department Supervisor Fekete
and Arabia: on June 23, to Kane, and several others in the physical test-
ing laboratory: and to Supersisors Stone and Bennett, and the foreman in
the laboratory
-11ME A DIVISION OF 'ITANIUM METALS CORPORATION OF AMERICA I I89
around and complaining to other employees that the
Company was unfair."
Reed's discharge was deadly swift, coming within 5
working hours after the emergence of his letter. The
Company's position here is that after 10 years it took
merely a few hours to determine it was dissatisfied with
Reed without other influence, and that since Reed was
unhappy with his raise, reflecting "mutual" dissatisfac-
tion, he should be discharged. This does not wash. I find
that in truth and in reality the Company did not want its
salaried employees to be organized, and Reed's actions
posed such a threat, in addition to being "detrimental to
the morale of [other] employees" as Page put it. No
other salaried employees had complained, and Reed par-
ticularly posed a danger or threat because of his procliv-
ity to readily verbalize his feelings. Reed's persistence
into the second day with equal stamina further added to
the necessity of prompt and final action. Reed may well
have been terminated for other and legitimate reasons
later on in his employment with the Company, but I am
convinced that his abrupt departure on June 23 was
solely motivated by his complaints and actions in draft-
ing and commencing to dissiminate his letter. The Com-
pany's stated reasons in my opinion were a pretext, and
I, thus, find and conclude that Reed's discharge violated
Section 8(a)(l) of the Act.' 3
Upon the foregoing findings of fact, initial conclusions,
and upon the entire record, I hereby make the following:
CONCL USIONS OF LAW
1. That the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. That Jacob Reed was an employee within the mean-
ing of Section 2(3) of the Act.
3. That the actions and salary complaints of Jacob
Reed on June 22 and 23, 1978, combined with and in-
cluding the drafting and dissimination of a letter offering
to represent other employees regarding salaries and other
benefits, constituted protected concerted activity under
Section 7 of the Act.
4. That on June 23, 1978, the Respondent violated Sec-
tion 8(a)(l) of the Act by discharging employee Jacob
Reed for engaging in the protected concerted activity
described in paragraph 3, above.
5. That the unlawful act and conduct concluded in
paragraph 4, above, and found herein, affected com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. That the Respondent has not otherwise violated the
Act.
3" Reed testified that when Page discharged him on the morning of
June 23, he told him he was a "bad influence" and a "malcontent" These
remarks are also alleged as a separate violation of Sec 8(a)(1) of the Act
in the complaint I find that, in fact, these or similar words were used by
Page, who admitted in testimony that he considered Reed a "bad influ-
ence." However. I consider the remarks and the discharge as one eent,
and I shall not find a separate violation as alleged The record is in my
opinion unclear as to whether these particular remarks took place before
or after the actual discharge, and the meeting lasted almost 2 hours
TH R 1E-)
Having found that the Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom,: 9 and that it take certain affirmative
action as set forth below designed to effectuate the pur-
poses and policies of the Act.
Having found that the Respondent violated Section
8(a)(l) of the Act by unlawfully discharging employee
Jacob Reed, I shall recommend that Respondent offer
him immediate and full reinstatement to his former posi-
tion or, if such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his seniority
or other rights and privileges previously enjoyed.
I shall further recommend that Respondent make Reed
whole for any loss of earnings he may have suffered as a
result of the discrimination against him by payment of a
sum of money equal to that he normally would have
earned from the date of discharge to the date of its offer
of reinstatement, less net earnings, with interest thereon
to be computed in the manner prescribed in F. W Wool-
worth Company, 90 NLRB 289 (1950), Florida Steel Cor-
poration, 231 NLRB 651 (1977).4 0
It will also be recommended that the Respondent pre-
serve and make available to the Board, upon request, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary and useful to determine the amount of
backpay due and all the rights of reinstatement under the
terms of these recommendations.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 41
The Respondent, TIMET, A Division of Titanium
Metals Corporation of America, Toronto, Ohio, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for engaging in concerted
activity for their mutual aid or protection by making
salary complaints combined with and including the draft-
ing and dissimination of letters offering to represent
other employees regarding salaries and other benefits.
.9 I shall also recommend that the additional "cease and desist" provi-
sion of the Order be of the narrow variety, which I feel to be more ap-
propriate in this case. See Hickmort Foods. Inc., 242 NLRB 1357 (1979)
'" See, generally, Ils Plumbing & Heating Co., 138 NLRB 716 (1962)
In his brief, the General Counsel has requested that a remedial interest
rate of 9 percent per annum be imposed on the backpay for which the
Respondent is liable due to the violation found herein a percentage
which is at variance with the Board's current policy of calculating inter-
est according to the "adjusted prime rate" utilized by the Internal Reve-
nue Service for interest on tax payments. In iesv of the recent increase
in the interest rate by the Internal Revenue Service to 12 percent. effec-
ti,e February I. 1980. this request is denied
't In the eent no exceptions are filed as provided by Sec 102.40 of
the Rules and Regulations of the National Labor Relations Board, the
findings. conclusions. and recommended Order herein shall. as provided
in Sec 102 48 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed saived for all purposes
1190 DECISIONS OF NATIONA IAI()OR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Jacob Reed immediate and full reinstatement
to his former job or, if such job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously en-
joyed, and make him whole for any loss of pay, plus in-
terest, he may have suffered as a result of his unlawful
discharge, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records and reports, and
all other records necessary to analyze the amount of
backpay due herein.
(c) Post at its office and places of business in Toronto,
Ohio, copies of the attached notice marked "Appen-
dix." 42 Copies of said notice, on forms provided by the
Regional Director for Region 8, after being duly signed
by the Respondent's authorized 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 to insure that said notices are not altered, de-
faced, or covered by any other material.
42 In the event that this Order is enforced by a Judgmenlt of he
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations HBoard" hall read "Posted Pur-
suant to a Judgment of the United States Court of App;cals Elnforcing an
Order of the National Labor Relations Hoard"
(d) Notify the Regional Director for Region 8, in writ-
ing. within 20 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NoTinc To EMPI OYEt.S
PoSi I) HBY ORI)ER OF THE
NATIONAl LABOR REI.AT IONS BOARI
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice. We intend to carry out the
order of the Board.
WI wll. NOT discharge employees for engaging
in concerted activity for their mutual aid or protec-
tion by making salary complaints, combined with
and including the drafting and dissimination of let-
ters offering to represent other employees regarding
salaries and other benefits.
WE wll.l. NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of rights guaranteed them in Section 7
of the Act.
Wi- Wl.t. offer Jacob Reed immediate and full
reinstatement to his former job or, if such job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges previously enjoyed, and we will
make him whole for any loss of pay which he may
have suffered as a result of his unlawful discharge,
with interest.
TIMET. A DIVISION OF TITANIUM MlTAI.S
CORPORAION OF' AMERICA