Supreme Optical Co.Download PDFNational Labor Relations Board - Board DecisionsMay 5, 1978235 N.L.R.B. 1432 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL Supreme Optical Company, Inc. and Teamsters Local Union No. 957, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 9-CA- 11023 May 5, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 3, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge, with additional rationale set forth below, 2 and to adopt his recommended Order, except that the remedy is modified so that the interest is to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).3 We agree with the Administrative Law Judge that the five employees were discharged for absence from the plant after they had received permission for such absence to engage in protected concerted activity. Thus, as more fully set out by the Administrative Law Judge, they had been granted permission by their immediate supervisor to attend a hearing before the Ohio Bureau of Unemployment Services upon request of a discharged employee that they testify on his behalf. After they had left the plant their departure came to the attention of the foreman and the general manager (Young); thereafter Young rescinded the permission and when the employees returned to the plant that afternoon they were terminated because they had attended the unemploy- ment hearing. The crux of this case is whether the employees were engaged in protected activities. While we agree with his conclusion and concur in all respects, we deem it I 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 credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 235 NLRB No. 193 necessary to explain more fully our reasons for so finding. The Respondent argues that employees who direct- ly process claims against their employer or others under governmental insurance-type programs are not engaged in protected activity under Section 7 of the Act, referring to two Board decisions, discussed below, which it interprets as supporting this proposi- tion. However, the cited decisions hold only that such action by one employee alone is not protected, and thus they have not been correctly interpreted. In Hunt Tool Company, 192 NLRB 145 (1971), the holding was that an action by a single employee in filing a law suit against his employer under the Federal workmen's compensation statute was not protected because it was not in conjunction with other employees and hence not "concerted." And in Duqal, Ltd., 196 NLRB 511 (1972), the Board found a violation by discrimination against an employee based in part on the fact he engaged in union activities; the Board did not comment or rely on the Trial Examiner's holding that an individual employ- ee's processing of a workmen's compensation claim was not protected concerted activity within the meaning of the Act. In any event, that case, unlike the present one, involved the processing of an action by one person, not in conjunction with any other employee, and hence the Trial Examiner's holding was like that in Hunt Tool Company, supra, which he relied on. Thus, the holdings related to individual action, not to the type of proceeding involved. In contrast, the issue here is solely related to the nature of the proceeding, i.e., whether clearly concerted action was protected where taken in support of a workmen's compensation claim by one dischargee. It has long been recognized that this Board is required to administer the Act with careful accom- modation to the statutory scheme as a whole.4 It is equally well settled that the matter of unemployment compensation benefits arises out of the employment relationship, as pointed out by the Administrative Law Judge,5 and is one aspect of the national labor policy.6 And, contrary to the Respondent's conten- tion, it is immaterial whether the subject of employee concerted activity is or is not directly related to their own conditions of employment vis-a-vis their own employer. For example, in cases too numerous to cite, it has been held by both the Board and the courts that a sympathy strike in support of employees of another employer is protected concerted activity. 2 Member Jenkins is satisfied with the rationale of the Administrative Law Judge's Decision and he adopts it in its entirety. 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 4 E.g., Southern Steamship Company v. N. LR.B., 316 U.S. 31, 47 (1942). 5 Cf. Steward Machine Co. v. Davis, 301 U.S. 548 (1937). 6 See Meltzer, Bernard, "Labor Law, Cases, Materials, and Problems," at pp. 29 and 36 (2d ed., 1977). 1432 LABOR RELATIONS BOARD SUPREME OPTICAL COMPANY, INC. Similarly, the appearance of employee representa- tives before legislative committees has been held to be protected concerted activity. 7 And in a recent case somewhat analogous to the present one, the Board held, and the Court of Appeals for the Fifth Circuit affirmed, that distribution in nonwork areas of a union circular, which related in part to the union's opposition to a proposed state right-to-work law and its position on the then pending Minimum Wage Bill, was protected by the Act and the company's refusal to permit distribution in nonworking time and nonwork areas of the plant violated Section 8(a)(1) of the Act.8 Considering the situation here before us in light of the general principles and holdings of the many cases cited and referred to above, it is patent that the appearance of these employees at the unemployment compensation hearing-for which they had received permission in advance to leave work 9 -was clearly a concerted activity which had some relationship to the employment situation and was protected by the Act. That this was so is even more apparent when it is recalled that the hearing concerned a termination by their own Employer and their testimony there might well have been in conflict with that which the Company presented. As the Board has noted, "it is traditional for employees to help each other and make common cause so that 'each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping.' " Washington Forge Inc., 188 NLRB 90, 97 (1971). While it is not likely that this would be literally true in the instant case, inasmuch as the one being helped was no longer an employee and hence could not be in a position to reciprocate to the five attending the hearing on his behalf, it is true that if these five supported the dischargee in this situation others would be more likely to come to their support in the event any of them were in a similar situation at any time in the future. There can be no doubt, however, that these individuals were engaged in concerted activity "for the purpose of. . . their mutual aid or protection" within the meaning of Section 7 of the Act. In sum, it is clear, based on longstanding Board and court precedent, that the concerted activity involved herein was protected by Section 7 of the Act. Accordingly, we fully agree with, and adopt, the remedy recommended by the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, and hereby orders that the Respondent, Supreme Optical Company, Inc., Franklin, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Admin- istrative Law Judge. 7 Bethlehem Shipbuilding Corporation Limited v. N. LR.B., 114 F.2d 930, 937 (C.A. 1, 1940). 8 Easiex, Inc. v. N.LR.B., 550 F.2d 198, sec. II and cases cited in fn. 6 (C.A. 5, 1977), enfg. 215 NLRB 271 (1974), rehearing denied 556 F.2d 1280 (C.A. 5, 1977), cert. granted 434 U.S. 1045 (1978). 9 This is not to say that we would necessarily reach the same result if advance permission to be absent had not been sought and secured, since a balancing of the employee interest in protecting each other against the employer's interest in efficiently operating his business is required and the securing of permission is an important element in making the balance. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or interfere with, restrain, or coerce employees in regard to hire or tenure of employment, or any term or condition of employment because of their protected con- certed activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. WE WILL offer to Virginia Asbury, Gerea Blankenship, Carolyn Hale, Nancy Keller, and Judy Rhoades immediate and full reinstatement to each's former position or, if such position no longer exists, to a substantially equivalent posi- tion, without prejudice to each's seniority or other rights previously enjoyed, and make each whole for any loss of pay or other benefits, plus interest, suffered by reason of the discrimination against each. SUPREME OPTICAL COMPANY, INC. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Relations Act, as amended, came to hearing pursuant to due notice on May 17, 1977, at Dayton, Ohio. The charge was filed on February 3, 1977. The complaint in this matter was issued on February 25, 1977. The issues 1433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concern whether Respondent has violated Section 8(aX1) of the Act by discharging five employees because they engaged in protected concerted activities within the mean- ing of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by Respondent and the General Counsel and have been considered.' Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admissions therein. Supreme Optical Company, Inc., the Respondent, an Ohio corporation, is engaged in the manufacture of optical products at its Franklin, Ohio, facility. During a 12-month representative period, Respondent purchased and received goods and materials valued in excess of $50,000, which were shipped directly to its Franklin, Ohio, facility from points outside the State of Ohio. As conceded by Respondent and based upon the foregoing, it is concluded and found that Respondent is, 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. II. THE LABOR ORGANIZATION INVOLVED 2 Teamsters Local Union No. 957, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Preliminary Issues and Supervisory Status3 At all times material herein, the following persons were employed by Respondent in the positions set opposite their respective names and are and have been agents of Respon- dent, acting on its behalf, and supervisors within the meaning of Section 2(1 1) of the Act. Dan Knox Dave Carlton Foreman Supervisor As indicated, I find that the credited aspects of the testimony of witnesses Carlton, Rhoades, Blankenship, and t On July 15, 1977, Respondent filed a motion to strike the General Counsel's brief as constituting an unwarranted attack on Respondent's counsel, as injecting new issues, and as referring to matter not of the record. Considering all of the premises, I find that consideration of the issues and arguments of counsel warrants a denial of such motion upon the basis that the trier of fact, without a jury, ignores overstatements or arguments not supported by evidence. The General Counsel's descriptive terminology, of what Respondent's pleadings were tantamount to, is ignored and considered to be an overstatement. Respondents' initial pleadings, however, do not appear to comport with the requirements of the Board's Rules and Regulations, Sec. 102.20 and 102.21 considered as a whole. Respondent's counsel should govern himself aocordingly as regard to future pleadings. As Keller establish that Carlton was a supervisor within the meaning of Section 2(1 1) of the Act. The issue is whether Carlton is a leadman without supervisory authority or a supervisor with supervisory authority within the meaning of Section 2(11) of the Act. Carlton's credited testimony reveals that he drifted into a position of leadman or of a supervisory type position by assuming more duties and responsibilities and that his foreman, Knox, used him more and more in such capacity commencing about a year before the incident involved in this proceeding. There is no evidence or contention that Carlton hired or fired, recommended hiring or firing, or had any attribute of supervisory authority excepting in responsible direction of work and in transferring employees from one job to another in the department or area where he worked. The facts are clear that, during the time immediately preceding the crucial events in this proceeding, Carlton directed the work of employees as to technical matters relating to work on lenses, and other matters. The facts are also clear that he exercised independent judgment in transferring employ- ees from one job to another in his area of responsibility. These facts alone are sufficient to establish that Carlton is and was a supervisor and agent within the meaning of Section 2(1 1) of the Act. The facts are clear that on or about November 12, 1976, the employees in the department where Carlton worked were assembled and told in effect that Carlton would be taking over as supervisor for the department, and that Foreman Knox would be going on the road as a salesman. Following this, it is clear that Carlton and Knox during the next several weeks discussed jobs and problems relating to Carlton's proposed place of operations. It is disputed as to whether Knox was absent a great deal between November 12 and 30, 1976. It is not necessary to resolve such a dispute, however. It is clear that the employees considered that as long as Knox was there he had greater and more controlling authority than Carlton. Considering all of the foregoing, it is clear and I conclude and find that Carlton was a supervisor and agent of Respondent within the meaning of Section 2(11) of the Act. B. Events of November 30, 1976 The General Counsel alleges that "on or about Novem- ber 30, 1976, pursuant to permission granted by Respon- dent, to leave work, the following named employees appeared at a hearing before the Ohio Bureau of Unem- ployment Services to testify on behalf of an employee whose employment had been terminated by Respondent." to the "new issues" argument, it was made clear at the hearing that the issues would be those as alleged. "New issues" as regards the theory of the alleged discharges simply have not been litigated and are not considered as new issues. "New issues" as regards "new remedy" are not new issues in such sense and are proper for consideration in the remedy aspects of the case. 2 The facts are based upon stipulations by the parties and the pleadings and admissions therein as amended at the hearing. 3 The facts relating to Knox's status are based upon stipulations by the parties made at the hearing. The facts relating to Carlton's status are based upon a composite of the credited aspects of the testimony of Carlton, Rhoades, Blankenship, and Keller. 1434 SUPREME OPTICAL COMPANY, INC. Virginia Asbury Gerea Blankenship Carolyn Hale Nancy Keller Judy Rhoades Statements at the hearing narrowing issues reveal that the facts as alleged are only disputed as to the question of whether the named employees had received permission to leave work to attend said hearing. The Facts 4 On November 30, 1976, there was a scheduled hearing before the Ohio Bureau of Unemployment Services con- cerning a former employee of Respondent named Dale Priest. This hearing was scheduled for 2 p.m. and all of the employees involved in this proceeding knew that the hearing was scheduled for 2 p.m. Prior to November 30, 1976, Dale Priest had asked Asbury, Blankenship, Hale, Keller, and Rhoades to come to the unemployment hearing and to testify. The employees, however, had not been subpenaed as witnesses for the hearing. On the morning of November 30, 1976, before starting work, Asbury, Blankenship, Hale, Keller, and Rhoades discussed the question of whether to go to the unemploy- ment hearing that afternoon and as to what they should do about receiving permission to go or not. The employees decided to postpone final decision until lunchtime and that Rhoades would act as spokesman if permission were to be sought. 5 Foreman Knox was at work on the morning of Novem- ber 30, 1976, and worked in close association at times with some of the five employees who later went to the unem- ployment hearing concerning Priest. None of the five employees spoke to Knox about possible attendance at the 2 p.m. unemployment hearing. Around noontime Asbury, Blankenship, Keller, Hale, and Rhoades met at the timeclock and decided in finality that they would attend the unemployment hearing that afternoon. Rhoades and Blankenship proceeded to locate Supervisor Carlton. Hale and Asbury followed close behind as a part of the group. Keller did not follow as part of the initial group. Rhoades spoke to Carlton and asked for permission for the group to go to the unemployment hearing. Carlton asked Rhoades how many were going. Rhoades told Carlton that there were five who wanted to go. Carlton asked Rhoades if they had spoken to Foreman Knox. Rhoades replied that no one had spoken to Knox. Carlton stated that he had better ask Knox. Rhoades asked Carlton in effect why Knox had to be asked. Rhoades asked Carlton if he (Carlton) was the boss. Carlton replied that he 4 The facts are based upon a composite of the credited aspects of the testimony of Carlton, Rhoades, Blankenship, Keller, Hale, and Hollen- kamp. Based upon a consideration of the logical consistency of all facts, I discredit the testimony of any witness inconsistent with the facts found. 5 Some of the cross-examination of Rhoades and others was directed toward establishing that the employees had decided early in the morning to go to the hearing and that the employees were trying to avoid seeking permission from Knox. Considering all of the facts, and the logical consistency of facts, I am persuaded that the employees truthfully testified to the effect that their decision to go was not finally made until noontime. was, but that if Knox were there he would have to ask him about the matter. Carlton left and looked for Knox. Carlton was unable to locate Knox and returned to the group in a few minutes. Carlton reported that he had been unable to locate Knox. The conversation occurred as the group had commenced moving toward the exit door. By this time Keller had joined the group. Keller told Carlton that she had left Foreman Knox in the lens room. Carlton told Keller that he had been there but had not seen Knox. Carlton asked Rhoades if Asbury, Hale, Keller, Blanken- ship, and she were the five who were going to the hearing. Rhoades replied that they were the ones. Carlton asked Rhoades when they were planning to go. Rhoades indicated that they were planning to go during the lunch break, to testify during the lunch break, and return so as to not miss much work. Carlton asked why they could not wait until Knox showed up. Rhoades replied that they had to go to lunch before going to the hearing. Carlton asked why they could not go to lunch, return, and see Knox around I p.m., before leaving. Rhoades told Carlton that they needed to go during lunchtime so they could have lunch, clean up, and change.6 Carlton asked Rhoades why they had to do this. Rhoades replied that they were dirty and needed to clean up for the hearing. Carlton told the employees that the hearing was not conducted in a formal manner, that there might be one to three hearings, and that if there were three hearings he would have to testify. Rhoades continued to indicate that the employees needed to clean up and change. Carlton asked Rhoades if the Board had subpenaed her to testify. Rhoades told Carlton that they had not been subpenaed, that they probably could have been subpenaed, that Priest had asked them to come and testify, and that she was afraid (in the nature of belief) that they would be subpenaed if they did not attend the hearing. Carlton told the employees to go to the hearing and tell the truth. Carlton asked the employees if they were going to return to work and was told that they were.7 A few minutes after the five employees had left Respon- dent's premises to go to the unemployment hearing, Carlton saw Foreman Knox in President Young's office. Present with Young and Knox was General Manager Jenkins. Carlton reported that the five employees had left to go to lunch and the unemployment hearing. Carlton was asked to tell Young and Knox what was going on, what had happened. Carlton related to Young and Knox his version of what had happened. Carlton related in effect that the Board had requested the employees to come to testify and that he had given them permission to go during Despite this, it is clear that the decisional thinking was close to sureness early in the morning It is also apparent that part of the uncertainty that remained was a reluctance to have a confrontation with Knox. 6 Carlton testified to the effect that Rhoades spoke about changing clothes. The former employees testified that Rhoades spoke about changing shoes. Considering the total facts of what occurred, I am persuaded that Rhoades spoke about "changes" but not specifically about shoes or clothes. I discredit the testimony of any witness inconsistent with the facts found. 7 It is noted that the normal lunch hour was from noon to 12:45 p.m. 1435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their lunch period to testify and to return as soon as they could after the hearing.8 Young became upset at what Carlton had reported. Young telephoned his attorney, Hollenkamp, between 12:15 and 12:30 p.m. Young asked attorney Hollenkamp whether he had to permit five employees to have time off to go to an unemployment hearing. Hollenkamp told Young that he could not answer the question unless he had the facts. Hollenkamp asked questions, and Young set forth answers thereto as to what he considered to be the facts. In such discussion as ensued, Young related that the employ- ees had been subpenaed. Hollenkamp indicated that this was a matter that needed to be checked. Young indicated that the employees had left and would not be returning, that the matter could not be checked with them at the time. Hollenkamp asked to speak to Grollemund who was going to attend the hearing. Hollenkamp asked Grollemund to check to see if the employees had been subpenaed. In the discussion between Hollenkamp and Young, Young stated that the employees constituted a third of his busiest department and that this would cause him problems. Young continued to press Hollenkamp for an answer as to whether he had to permit the employees to attend the hearing. Hollenkamp told Young that he needed other facts, that he would come to the Company after lunch. The five employees (Asbury, Blankenship, Hale, Keller, and Rhoades) left Respondent's premises around 12:15, and proceeded to a service station, stopped, cleaned up, and some of the employees changed shoes. The employees then proceeded from the service station to the site (in Middleton) for the unemployment hearing for Priest. The employees arrived at said hearing site around 12:45 p.m. At the hearing site the employees waited until around I p.m. and saw the person (South) who was assigned to conduct the unemployment hearing concerning Priest. The employees inquired as to whether they could give testimo- ny concerning Priest at that time. South informed them in effect that their testimony could not be given at that time because the parties were not there, that their testimony would have to be given after 2 p.m. 9 when the hearing was scheduled and when the parties would be present. South suggested that they could spend the time between I p.m. and 2 p.m., browsing around in a nearby shopping center. The employees followed South's suggestion and browsed around the nearby shopping center. Prior to 2 p.m., the employees returned to the hearing site. The unemployment hearing for Priest was conducted on November 30, 1976, commencing at 2 p.m., and concluding around 2:30 p.m. The five employees (Asbury, Blanken- ship, Keller, Hale, and Rhoades) gave testimony in the proceeding. Present at the proceeding was Priest; present for the Company at the proceeding were Foreman Knox and Controller Grollemund. The five employees apparently s Carlton was the only witness to testify regarding this conversation with Knox and Young. His testimony was basically conclusionary and general. Considering all of the facts, Hollenkamp's testimony that Young related that the employees had been subpenaed, Carlton's testimony relating to the effect that he was told that the Board had requested the employees to testify, Carlton's testimony both denying and indicating that he gave permission to employees to go to lunch when obviously such permission is not necessary, and all of the facts, I am persuaded that Carlton told Young and Knox that finished their testimony a short time before the hearing concluded, stepped outside the hearing room for a few seconds, waited until the conclusion of the hearing, and talked to Priest for about 15 minutes after the hearing was concluded. At no time before, during, or after the proceed- ing did Knox or Grollemund speak to the five employees and allude to their being present without permission or allude to an urgent production need for arrangements for their immediate return to Respondent's premises for work. The five employees (Asbury, Hale, Keller, Blankenship, and Rhoades) left the hearing site around 2:45 p.m., had lunch, and returned to Respondent's premises around 3:50 p.m. At such time, the employees discovered that their timecards had been pulled and were not in the timecard rack. Attorney Hollenkamp arrived at the Respondent's prem- ises around 1:30 p.m. Hollenkamp and Young then had a discussion about the events concerning the employees' (Asbury, Blankenship, Hale, Keller, and Rhoades) atten- dance at the unemployment hearing. Carlton was then called into the office around 2 or 2:30 p.m. Present in the office at this time were Hollenkamp, Young, Jenkins, and Carlton. There then proceeded to be a combination of questioning and discussion mainly centered on questioning of Carlton by Hollenkamp. It is clear that the questioning and discussion centered around what had transpired between Carlton and the employees regarding the conver- sation and reasons for the employees' leaving work and the purpose of their attendance at the unemployment hearing. Carlton was asked what he thought should be done. At this point, some reference was made to the fact that the Company had received a request for representation by the Union on the day before. Carlton expressed his opinion that he had mixed feelings, that he did not want the Company to be hurt by the giving of testimony by the employees at the unemployment hearing, that, however, he thought they should have a chance to explain the situation. Later, around 2:50 p.m., Grollemund and Knox returned to Respondent's premises from the unemployment hearing. Further discussion ensued, apparently among Young, Knox, Jenkins, Grollemund, and Hollenkamp, concerning the employees' leaving work and attending the unemploy- ment hearing. Young, apparently around 3:30 p.m., decid- ed to discharge Asbury, Blankenship, Hale, Keller, and Rhoades. Apparently, around 3:30 p.m., President Young instruct- ed someone to pull the five employees' timecards. Young then apparently instructed Foreman Knox to see that the timecards had been pulled and to inform the employees that they had been discharged. Young further stated that he wanted to know when the employees returned from the unemployment hearing. the employees had told him that their testimony had been requested by the Board and that he had given them permission to go because the employees were going to go during their lunchtime and return after the hearing. 9 It is clear that the employees knew that the hearing was scheduled for 2 p.m. Despite this, I am persuaded that the employees mistakenly hoped or believed that they might give testimony prior to the scheduled time in the matter involved. 1436 SUPREME OPTICAL COMPANY, INC. As has been previously set forth, the five employees returned to Respondent's premises at 3:50 p.m., and discovered that their timecards had been pulled. Around this time someone informed President Young that the five employees were back. President Young then called General Manager Jenkins and told him to be present with Foreman Knox when Knox told the employees that they were discharged. The five employees, after seeing that their timecards were pulled, were told by several fellow employees that the timecards had been pulled earlier.10 The five employees then proceeded toward the exit from the building. Around this time General Manager Jenkins and Supervisor Carlton were in the vicinity of the five employees. Jenkins told the employees that Foreman Knox wanted to see the employ- ees in his office, one at a time. Carlton also apparently reiterated the same message to one or more of the employees." Blankenship told Jenkins that the employees were all in the matter together. At this point Asbury, Blankenship, Hale, and Rhoades proceeded into Knox's office. At this point Knox and Jenkins were in the office with the four named employees. Foreman Knox told the four named employees that they had let him down, that the Employer had had to pull people from other jobs to do their work. Knox asked Rhoades why she had not asked him for permission. Rhoades told Knox that she had thought that he would try to stop them from attending the unemployment hearing. Rhoades told Knox that he had refused to let Nancy Keller have time off to have her daughter reinstated in school. Knox stated that, as to this, Nancy Keller had changed her mind. Foreman Knox stated that he had no alternative except to discharge the employees. Before Knox made this last statement, Keller had joined the other employees in the room. Knox stated that the reason for the discharges was because the employees had not had permission to leave work to go to the unemployment hearing. Jenkins made a similar statement. Blankenship told Knox and Jenkins that the employees had had permission, that they should get Carlton into the meeting. Blankenship started to the door for the apparent purpose of getting Carlton to come into the room. General Manager Jenkins was between Blanken- ship and the door, and Blankenship construed that Jenkins was blocking her exit and keeping her from going out the door. Blankenship motioned to Carlton, who was on the outside, to come into the office. Foreman Knox also motioned to Carlton to come into the office. Following this, Carlton entered the office. General Manager Jenkins asked Carlton if he had given permission to the employees to leave and go to the hearing. Carlton replied that all he had done was to give the employees permission to go to lunch. Keller told Jenkins that Carlton had given them permission. Keller and 10 Rhoades, as an example, testified that two of the employees told her that the timcards had been pulled shortly before 2 p.m. by President Young. As to establishing when the timecards were pulled, such testimony is hearsay. The General Counsel did not put any witnesses on who could testify of their own knowledge as to when the timecards were pulled. However, it is clear that the timecards had been pulled by 3:50 p.m. I' For practical purposes, it may be said that all five employees were Blankenship asked Carlton in effect to tell them when they ever had to have permission to go to lunch. Carlton replied that Rhoades had told him that they had been officially requested to attend the unemployment hearing, that he had no recourse, that he could not have physically stood in their way. Rhoades then stated in effect that she had not told Carlton that the employees had been officially request- ed to go to the hearing. Jenkins told Carlton in effect that he was not needed any longer, that he should leave. Jenkins then told the five employees that nothing more needed to be said, that the National Labor Relations Board could not help them now.'2 Hale told Foreman Knox that the employees had nothing against him or the Company, that they had gone to the hearing to help Priest get his unemployment pay. The employees then left the office. After leaving the office, Hale and Blankenship went back toward their work tables to get some belongings. General Manager Jenkins appeared nearby and told Hale in effect to leave the building immediately. The department in which Asbury, Blankenship, Hale, Keller, and Rhoades worked had approximately 15 em- ployees. On November 30, 1976, the department was behind in production. An attempt was made on the afternoon of November 30, 1976, to meet production needs by bringing in some employees from other departments and by some work performed in the department by General Manager Jenkins. C. Contentions and Conclusions The General Counsel alleges and contends that the five employees had permission to attend an unemployment hearing on November 30, 1976, that they engaged in protected concerted activity by attendance at such unem- ployment hearing, and that Respondent violated Section 8(a)(l) of the Act by discharging such employees because they engaged in protected concerted activity. The Respon- dent denies that the employees had permission to attend the unemployment hearing, and denies that the discharge of the employees was because they engaged in protected concerted activity. Rather, the Respondent contends (I) that the discharges were justified because the employees did not have permission to leave work and attend the unemployment hearing, (2) that the employees' leaving work without permission created a production problem justifying their discharges, and (3) that attendance at the unemployment hearing was not protected concerted activi- ty. Considering all of the facts, I am persuaded and conclude that the facts reveal that Respondent had given permission for the employees to leave or be absent from work to attend the unemployment hearing on November 30, 1976, that the employees' attendance at such hearing constituted protected concerted activity,13 that the dis- charges of the employees were because of their engaging in together when they noted that their timecards were missing. The facts indicate, however, that Keller may have been a little behind the others as the events ensued. 12 The record reveals that a National Labor Relations Board representa- tion petition had been filed a day or two before and that the matter was one of common knowledge. 13 Respondent contends that employee attendance at the unemployment (Continued) 1437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protected concerted activities, that Respondent's produc- tion problems were not of such a nature as to outweigh the necessary accommodation of conflicting rights involving the employees' right to engage in protected concerted activity, and that such alleged economic reasons were not the dominating reason for the discharges. It follows that Respondent's discharges of Asbury, Hale, Blankenship, Keller, and Rhoades, on November 30, 1976, because they engaged in protected concerted activity, constituted con- duct violative of Section 8(aX 1) of the Act. In connection with and as a part of the following consideration, I note the following. 1. The facts are clear that Respondent, by Supervisor Carlton, granted the employees permission to be away from work and to attend the unemployment hearing. Carlton's remarks to Young and Knox, and attorney Hollenkamp, and later to the employees, Jenkins, and Knox, and in his testimony at the hearing, clearly reveal that the employees' testimony concerning the granting of permission was truthful. Thus, Carlton, in effect, when confronted by his superiors, and at the hearing, attempted to convey that he only gave the employees permission to go to lunch, that he could not help doing what he did. His very testimony makes it clear that he had given permission. It is clear that permission was not needed by the employees to go to lunch. I am persuaded that Carlton, after awareness of President Young's unhappiness over the employees' attendance at the unemployment hearing, attempted to minimize the effect of what he had done and to justify the same. In sum, it is clear that the employees had permission to be away from work and attend the unemployment hearing. 2. It is clear that President Young was unhappy over the employees' planned attendance at the unemployment hearing and so communicated to attorney Hollenkamp that he was displeased and was seeking advice or rationali- zation for a basis to discharge the employees for atten- dance at the unemployment hearing. 3. The contended economic justification because of production problems does not stand up under scrutiny. If Respondent had such production problems or was really concerned on that basis and was not engaged in a search for a pretextuous reason for discharge, Foreman Knox would have communicated such problem to the five employees at the time of the unemployment hearing, and arrangements would have been made to minimize the time lost in attendance at the hearing. Considering Carlton's and Hollenkamp's testimony of what Carlton reported, it is obvious that President Young would be aware that permission had been granted and that Carlton was minimizing and justifying his actions. In sum, the facts completely persuade that President Young was aware that Carlton had granted the employees permission hearing, to testify concerning the receipt of unemployment compensation for a discharged employee, does not constitute protected concerted activity. Thus, Respondent contends in effect that the employees' own wages and working conditions are not affected. I reject such contention. Unemploy- ment compensation benefits as a matter of law are related to employee wages and working conditions. If an employee is terminated or laid off, such employee is entitled to benefits of an insurance nature, depending upon whether the termination or layoff is for cause or not. All employees in effect have such benefit type insurance coverage. A major protection for to be away from work and to attend the unemployment hearing. 4. The conversation between President Young and attorney Hollenkamp clearly reveals that President Young was angry. If production were the real concern, it would appear that the employees' services would have been utilized for the remainder of the day on November 30, 1976, after they returned from the hearing. In sum, the preponderance of the facts reveals that Respondent, on November 30, 1976, discharged Asbury, Hale, Blankenship, Keller, and Rhoades because they engaged in protected concerted activity (attendance at an unemployment hearing), and thereby engaged in conduct violative of Section 8(a)(1) of the Act.14 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent discharged Virgin- ia Asbury, Gerea Blankenship, Carolyn Hale, Nancy Keller, and Judy Rhoades in violation of Section 8(aX)(1) of the Act, the recommended Order will provide that Respon- dent offer each reinstatement to each's job, and make each whole for loss of earnings or other benefits within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. The General Counsel in his brief requests the Board to reexamine the amount of interest to be computed upon backpay awards and to change the rate of computation of interest on backpay from 6 percent to 9 percent. The Board's policy on interest was announced in Isis Plumbing & Heating Co., 138 NLRB 716. Despite past requests for reexamination of the policy set forth in such case and the announcement of new rates of interest on backpay, the Board has not changed its policy. I am bound by current Board policy and adhere to the standard remedy as set forth in Isis. I would suggest that this type of issue is one employees to see that their own unemployment benefits insurance is meaningful is the willingness of fellow employees to be available to testify as to the relevant issues. An employee who testifies for a discharged employee as to such issues is in effect testifying in general support and protection of his or her own potential benefits and encouraging other employees to be potential witnesses. Thus, I find it clear that employee attendance at an unemployment hearing is a protected concerted activity. 14 Cf. E.H. Limited, d/b/a Earringhouse Imports, 227 NLRB 1107 (1977). 1438 SUPREME OPTICAL COMPANY, INC. that the General Counsel could seek by applying to the Board for consideration under its rule making power rather than seeking the same through Administrative Law Judges who are bound by Board precedent. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Supreme Optical Company, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 957, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(aX)() of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '5 The Respondent, Supreme Optical Company, Inc., Franklin, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or interfering with, restraining, or coerc- ing employees in regard to hire or tenure of employment, I' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. or any term or condition of employment because of their protected concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Virginia Asbury, Gerea Blankenship, Caro- lyn Hale, Nancy Keller, and Judy Rhoades immediate and full reinstatement to each's former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to each's seniority or other rights previously enjoyed, and make each whole for any loss of pay or other benefits suffered by reason of the interference, restraint, and coercion against each in the manner described above in the section 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 payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at Respondent's manufacturing facility at Frank- lin, Ohio, copies of the attached notice marked "Appen- dix."' 6 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 16 In the event that 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." 1439 Copy with citationCopy as parenthetical citation