L & BF, Inc.,

National Labor Relations Board - Board Decisions

Feb 8, 2001

333 N.L.R.B. 268 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268
L & BF, Inc. and Charles Murnahan. Case 9–CA–
35052
February 8, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On July 2, 1998, Administrative Law Judge George
Carson II issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Theresa Donnelly, Esq., for the General Counsel.
Charles M. Roesch and Darryl M. Kates, Esqs., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was tried in Ironton, Ohio, on April 29 and 30 and May 1,
1998. The charge was filed on June 24, 1997,1 and the com-
plaint issued on November 14. The complaint alleges that Re-
spondent violated Section 8(a)(1) of the National Labor Rela-
tions Act by discharging seven employees because they en-
gaged in protected concerted activity. Respondent’s timely
answer denies any violation of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, L & BF, Inc., a corporation, provides main-
tenance and construction services valued in excess of $50,000
to Dow Chemical at Hanging Rock, Ohio. Dow Chemical an-
nually sells and ships products valued in excess of $50,000
directly to points located outside the State of Ohio. The Re-
spondent admits, and I conclude and find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.

1 All dates are 1997 unless otherwise indicated.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Lawrence Fields has provided maintenance and construction
services to Dow Chemical for over a decade. Prior to 1996,
those services were provided by Fields Excavating. In 1996,
Lawrence Fields and his wife Brenda established L & BF, Inc.,
the Respondent, and since then the Respondent has provided
the same services that Fields Excavating had provided. Fields is
semiretired. Respondent’s employees at the Dow facility are
supervised by Gary Sherman.
Dow’s Hanging Rock facility consists of three plants that,
respectively, produce Styrofoam, Ethafoam, and Styron. Dow’s
production processes use chemicals, some of which are hazard-
ous. Acrylonitrile, referred to as AN, is toxic and classified as a
cancer hazard by OSHA. Dow employees whose job duties
involve regularly working around hazardous chemicals receive
extensive annual physical examinations.
L & BF employees, except for the employee who lubricated
machinery at all three plants, perform no regular job duties in
which they risk exposure to any hazardous chemicals. On occa-
sion, L & BF employees are assigned to perform the final
cleanup after a chemical spill. On these occasions, the initial
cleanup is performed by Dow employees who neutralize the
chemical and monitor the air to assure that it is within accept-
able standards. Before any work begins, a safe work permit
must be issued. The permit designates what safety equipment,
such as respirators, must be worn. Typically, as in February
when L & BF employees were assigned the task of digging up
soil upon which ethylbenzine had spilled, no safety equipment
is required.
Respondent’s employees are also assigned to perform main-
tenance work during periods in which Dow shuts down a plant
for major maintenance. This occurs about once a year. During a
shutdown, Respondent’s employees will, among other tasks,
remove pipes that are to be replaced and remove, and then re-
place, safety relief valves after they have been tested to assure
that they are working properly. Prior to Respondent’s employ-
ees performing any such work, Dow employees flush the pipes
and check the air to discern the presence of any dangerous
chemicals. No employee is permitted to begin work until a safe
work permit is issued. When working in certain areas, even
after air monitoring reflects that detectable fumes are at an
acceptable level, all persons present are required to wear a
chemical respirator to assure that there is no accidental expo-
sure to a known hazardous chemical. If, after Dow employees
have prepared an area for entry by L & BF employees, a prob-
lem develops, the L & BF employees are immediately removed
from the area. This occurred in the early 1990’s when Respon-
dent’s employees detected fumes while removing a safety relief
valve and in 1996, when Ed Carmon was sprayed when loosen-
ing bolts on a safety relief valve. As soon as Dow personnel
were notified, Respondent’s employees were removed. There is
no evidence establishing the chemicals involved in either of
these incidents, and the employees involved continued to per-
form their assigned duties after the incidents. There is no evi-
dence that any employee of L & BF has ever been exposed to
AN.
333 NLRB No. 36
L & BF, INC. 269
Respondent’s contract with Dow provides that Respondent
“must require each of its employees to comply with the rules,
terms, and conditions of the safety and security manuals and
procedures” specified by Dow. Included among those rules is
standard 102 relating to respiratory protection which requires
that employees wear respirators “where potential exposure to
respiratory hazards cannot be removed.” Both the standard and
a regulation of the Occupational Safety and Health Administra-
tion, codified as 29 CFR 1910.134 and set out in Respondent’s
contract with Dow, require employee medical evaluations and
fit testing. The medical evaluation consists of a breathing ca-
pacity test and check of blood pressure and heart rate to assure
that the employee may safely wear a respirator. The fit testing
assures that the employee knows how to wear and operate the
respirator, and that the respirator has no leaks.
The record is unclear regarding the extent of compliance
with the foregoing requirements prior to 1995. Respondent
required all of its employees to be tested and fit in 1995. In
1995, no one asserted that the respirators for which the employ-
ees had been tested and fitted provided insufficient protection
for the work they were performing. The card issued when an
employee is certified to wear a respirator reflects that it is valid
for 1 year.
In April, Dow requested that Respondent submit a bid for
performing work involving AN. Respondent did so on May 12.
In its bid, Respondent noted the increased medical cost for
compliance with the acrylonitrile health surveillance program, a
program suggested by Dow if Respondent’s employees were
going to perform work involving AN. In August or September,
Dow advised the Respondent that its bid had not been accepted.
B. Facts
1. The Events of April
The only employee of Respondent who regularly worked in
the vicinity of chemicals was Tim Wissman, who oiled and
greased machinery at all three plants. The only area in which he
was required to wear a respirator was the D-16 area of the Sty-
ron plant in which a tank containing acrylonitrile was located.
Wissman’s job duties did not involve contact with AN but did
place him in the vicinity of this tank once every 2 weeks. There
is no evidence that Wissman was ever exposed to AN. He was
tested and fit for a respirator in 1993 and 1995.
In late April, Wissman ceased performing the lubrication
function in the D-16 area, and, therefore, had no need for a
respirator. Although this change in Wissman’s job duties is
uncontradicted, the testimony regarding what was communi-
cated to employees when this occurred in late April is contra-
dictory. Wissman testified that foreman Gary Sherman told him
that Respondent’s employees were not to wear respirators. Al-
though Wissman thereafter referred to Respondent “taking” the
respirators, he acknowledged that this did not occur. He stated
that he turned in his respirator, but there is no evidence that any
other employee did so. Employee Scott Neal testified that
Sherman told the employees that they were not to perform any
more jobs that required using a respirator. Tom Woods, Dow’s
construction representative, denied making any statement re-
garding taking away the respirators of L & BF employees.
When asked if he ever indicated that L & BF employees would
not be doing work requiring respirators, Woods testified, “After
this thing about the AN, Mr. [Ralph] Pons, who is my boss,
decided they [L & BF employees] wouldn’t do any . . . AN type
[work], be around it or anything.” Woods was not asked to
elaborate upon this answer. Thus, the record does not establish
to what he was referring when he mentioned “this thing about
the AN.” In view of the change in Wissman’s job duties, it
would appear that Pons learned that L & BF employees were
regularly performing lubrication work that involved potential
exposure to AN and directed that this cease.
Whatever the circumstances surrounding the decision, I
credit Woods’ testimony and find that Pons directed that any
potential contact with AN in the course of the normal job duties
of L & BF employees cease. Woods was not asked how he
communicated the directive from Pons to foreman Gary
Sherman. Sherman, when informing the employees whatever
Woods had told him, did not specify that employees were not to
perform any job duties in which there was potential exposure to
AN. Rather, as Neal testified, Sherman made a broader state-
ment. He told the employees that they were not to perform any
jobs that required using a respirator. There is no probative evi-
dence that Respondent took away the employees’ respirators. I
do not credit the testimony of employees Charles Murnahan
and Mack Boles that Sherman stated that Dow was taking the
respirators away. I find that their testimony reflects Wissman’s
references to “taking,” not a statemant by Sherman. Sherman
did not deny stating that L & BF employees were not to per-
form jobs that required wearing a respirator.
In the course of a discussion after Sherman spoke with the
employees, Wissman testified that Sherman told him that he did
not have the “right physical,” but Sherman denies making such
a comment. Even if the comment were made, the record does
not establish whether Sherman was referring to a need for more
thorough physicals or the fact that Wissman needed a current
breathing capacity evaluation since his respirator certification
had expired in 1996. Regardless of any comment that Sherman
may have made, Wissman was aware that Dow employees
whose job duties involved potential exposure to chemicals re-
ceived more extensive physical examinations than the breathing
capacity, blood pressure, and heart rate check that L & BF em-
ployees received when being certified to wear a respirator.
Ed Carmon testified to having conversations with Sherman
and Dow employees regarding the different examinations that
Dow employees received. He had these conversations over a
period of years, from 1993 until 1997. At some point, Carmon
questioned Ralph Pons, Woods’ superior, regarding his under-
standing that some Dow employees received more extensive
physicals and training than L & BF employees. Pons assured
Carmon that L & BF employees had the proper physicals and
training for the work they were doing. Prior to May 27 no
L & BF employees had demanded more extensive physical
examinations or training regarding handling chemicals, nor had
any L & BF employees refused to take respirator testing.
2. The events of May
During the week of May 18 construction representative
Woods requested that Sherman assure that all L & BF employ-
ees had current respirator certification cards so that they could

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
work during a shutdown scheduled for the end of the summer.
All of the employees’ certifications had expired in 1996.
Sherman announced this on Friday, May 23, stating that any
employee who did not want to be respirator certified would be
laid off.
On the morning of Tuesday, May 27, following the Memo-
rial Day holiday, the employees returned to work. Sherman
stated that he had four appointments for employees to take the
breathing test that was a prerequisite to being fitted for a respi-
rator. Contrary to the statement he had made on Friday,
Sherman stated there would be no layoffs, that everyone needed
to be tested and fitted; anyone who refused would be termi-
nated. The employees questioned whether the physical exami-
nation was the same as they had taken in the past, and Sherman
replied that it was. The employees then began arguing with
Sherman, with Carmon stating that the physical the employees
had taken in 1995 was not the right one. Wissman referred to
Sherman’s “taking” his respirator, stating that it was because
the employees did not have the proper physicals to be wearing
respirators in the chemicals. Sherman, who was completely
surprised by this outburst, left the meeting and called Fields.
Thereafter, he advised the employees that if they were unwill-
ing to be tested, they should speak with Fields.
Following the meeting with Sherman, the employees spoke
together. Although they did not work with chemicals, the em-
ployees did risk potential exposure to chemicals during a shut-
down. The hazards of exposure had been explained to them in
Respondent’s monthly safety meetings, and several employees
were aware that AN had been identified as a cancer hazard. The
lack of clarity and explanation in Sherman’s April announce-
ment of no work requiring respirators caused several employees
to conclude that his May directive that they be respirator certi-
fied was inconsistent and contradictory. Seven of Respondent’s
10 employees decided that they would not take the respirator
testing and thereby be qualified to work during the shutdown,
unless Respondent agreed to provide them with additional
physical examinations and training, the same physical examina-
tion and monitoring and training as Dow provided for its em-
ployees whose regular job duties involved potential exposure to
hazardous chemicals.
On the afternoon of May 27, the seven employees, Tim
Wissman, Ed Carmon, Charles Murnahan, Scott Neal, Mack
Boles, Roy Payton, and Jerrod Robinson met with Fields in the
parking lot at his office, which is located at his home. Fields
said he did not understand what the problem was, and Mur-
nahan stated that the employees did not feel safe getting in the
chemicals. Fields responded that they were just going back for
the same physical as before, to be fitted for what he understood
to be dust respirators. The employees pointed out that the respi-
rators were also chemical respirators, and Fields noted that was
even better protection. Wissman referred to what he considered
to be Sherman’s contradictory behavior in “taking” his respira-
tor and telling him that they did not have the “right” physical.
Fields responded that he did not see why the employees were
upset with being asked to be tested, because “we haven’t put
you in anything yet.” The shutdown was scheduled for August
or September. Carmon told Fields that the employees would
wear the respirators if they got “proper physicals and proper
training.” Fields told the employees to take the next day off,
that he would go talk with Dow.
Fields went to the Dow facility on the following morning.
Prior to this, he had reviewed Respondent’s contract with Dow
which provides that Respondent “must require each of its em-
ployees to comply with” Dow’s safety rules. Wissman, despite
Fields’ direction to take the day off, had begun his lubrication
rounds. He was paged and reported to Respondent’s office
where he met with Fields and Sherman. Fields showed Wiss-
man the contract, pointing out the section that required employ-
ees to be respirator fit. Wissman responded that he did not have
any problem with taking the respirator test “as long as we got
the same physical . . . and the training to be in the chemicals
that the Dow people had.” Wissman questioned whether any
work would involve AN. Fields initially responded affirma-
tively, and then modified his response, stating that it had not
been determined. Fields explained that the employees were
going for the respirator test they had before, that this had noth-
ing to do with AN. Wissman stated that if he was being sent for
the same physical that he had before, that Fields was firing him.
Fields stated that if Wissman took the fit test and respirator
exam he could continue to work. Wissman stated that he would
not take the test. Fields stated that Respondent could no longer
use him.
Mack Boles and Roy Payton, both of whom worked in the
tow motor shop where they repaired Dow equipment, also re-
ported to work. After Wissman was terminated, Fields went to
the tow motor shop. He asked Boles and Payton why they were
there, and they responded that they had contacted the Dow
employee who oversaw their work, and he told them to come
in. Fields stated that was fine. He then asked if they were will-
ing to take the respirator fitness test, and they said no. Fields
then showed them the contract, and Payton made a copy of it.
Fields explained that Respondent could not abide by the con-
tract if they did not take the test. Payton and Boles expressed
their concern about potential exposure to chemicals, and Fields
noted they would “be working in a safe environment as Dow
has provided for you.” In the course of the conversation, it was
noted that both employees had worked during shutdowns in the
past. In response to a question regarding working in AN, Fields
replied that it was “more than likely,” but that it had not been
determined. Payton asked if the employees were going to re-
ceive additional training, and Fields showed him the contract,
stating that it said nothing about additional training. Boles
asked whether the employees would receive a raise, and Fields
responded, “No.” Both Boles and Payton refused to take the
respirator fitness test. They asked if they were fired; Fields told
them no, they were firing themselves. Boles and Payton re-
sponded that they were not firing themselves. Fields stated that
they were terminated.
Thereafter, Fields met with Dow’s construction representa-
tive Tom Woods. Woods confirmed that the contract with Dow
required that Respondent comply with OSHA and Dow safety
regulations and that Respondent’s employees had to be certified
to wear respirators.
On the afternoon of May 28, Murnahan, Carmon, Neal, and
Robinson again met with Fields in the parking lot at his home
and office. Fields had Robinson read aloud the portions of his
L & BF, INC. 271
contract that related to the requirement for respirator fitness of
Respondent’s employees. Neal and others stated that they were
not going to take the respirator test unless given the same train-
ing and physical as Dow employees. In the course of the dis-
cussion, Fields stated that, although Respondent was requesting
that the employees undergo the respirator fitness testing,
“[l]ater on, we might discuss something else,” that there “might
be a possibility of getting a different physical later on.” Some-
one raised the issue of potential contact with AN, and Fields
responded that the final word had not come down on whether
they were going to be doing AN work. He then pointed out that,
at that moment, the issue was compliance with the contract
regarding respirator fitness, “AN is not an issue right now.”
The employees continued to demand the same physicals and
training as that given to Dow employees whose regular job
duties involved potential exposure to hazardous chemicals.
Fields suggested that, if the employees did not want to perform
work involving potential contact with chemicals, they take the
test and go ahead and continue to work for him while hunting
for another job. He stated that “we can argue about it [the respi-
rator test] for two weeks and it will still be the bottom line. It’s
in the contract. We’ve got to abide by it or we’re not going to
be out there at Dow anymore.” He then individually asked each
employee if he would take the respirator test. Each refused and
was terminated. Respondent’s three remaining employees and
Foreman Sherman took the respirator fitness test.
C. Analysis and Concluding Findings
The complaint alleges that the discharged employees en-
gaged in protected activity “by concertedly refusing to work
around dangerous chemicals unless they received proper train-
ing and physical examinations.” The record does not establish
any actual failure to perform work around dangerous chemicals,
thus, there is no Section 502 issue in this case.2 Rather, in sup-
port of their concerted demand that Respondent provide them
with more extensive testing and training, the employees refused
to participate in the respirator testing and fitting that was re-
quired by Dow and was a prerequisite for assignment of work
during the upcoming shutdown.3
The General Counsel argues that the employees’ refusal to
take the respirator fitness testing, a refusal made in support of
their demand that they receive additional testing and training
before being assigned shutdown work, was protected and that
Respondent’s discharge of the employees for this protected
refusal violated Section 7 of the Act. Respondent argues that
Respondent’s contract with Dow required all employees to be
respirator fit, that the employees’ refusal to take the respirator
fitness testing was the sole reason for termination, and that the
refusal was a partial refusal to work, activity that is not pro-
tected by the Act.
The General Counsel, in arguing that Respondent was not
privileged to terminate those employees who refused to take the
fitness testing, cites various cases including Sargent Electric
Co., 237 NLRB 1545 (1978), and Union Boiler Co., 213 NLRB
818 (1974). In each of those cases the employees refused to
perform work due to what they perceived, at the time of refusal,
to be unsafe working conditions. The employees were dis-
charged for refusal to obey the order to perform the very work
that was the subject of their concerted protest. The employees
had no option but to abandon their protected concerted activity
or risk termination. The Board, in those circumstances, found
that the concerted refusal to perform the work was protected
activity and that termination for that activity violated the Act.
In the instant case, the employees had not been assigned any
work to which they objected. The employees were not contend-
ing that they should not receive respirator fitness testing, nor
were they claiming that such testing was unnecessary. Rather,
in support of their demand that Respondent provide additional
testing and training, they refused to take respirator fitness test-
ing. They refused that testing in an effort to compel Respondent
to agree to the demand that they receive additional testing.
Complying with the Respondent’s demand that they take the
respirator fitness testing would not have precluded the employ-
ees from continuing to demand additional testing. They could
comply with Respondent’s request and continue to press their
demand. Thus, I find the case authority cited by counsel for the
General Counsel to be inapposite.

2 Sec. 502 provides, inter alia, that the “quitting of labor . . . in good
faith because of abnormally dangerous conditions . . . [shall not] be
deemed a strike . . . .”
3 The evidence that some of the employees were unaware of the spe-
cific nature of the physicals received by Dow employees does not alter
the concerted character of their action.
In her brief, counsel for the General Counsel acknowledges
that the employees’ actions were anticipatory, that they had not
actually been assigned to work in chemicals. Nevertheless, she
characterizes the refusal to undergo respirator fitness testing as
a refusal “to work in chemicals without the proper physical and
training.” The record does not support this characterization of
the facts. Although the employees’ statements threatened a
refusal to work at the time of the shutdown, there was no re-
fusal to work in May. There was no mention of a strike, and
Wissman, Boles, and Payton reported to work on May 28. Con-
trary to the statement in counsel for the General Counsel’s
brief, respirator testing was not “inextricably linked” to the
employees’ threatened anticipatory refusal to work. This state-
ment ignores the credible testimony, which is not set out in the
brief, that, on May 27, when the employees initially met with
Fields, he told them that “we haven’t put you in anything yet.”
On May 28, Fields told the remaining employees who were
refusing to be tested that the issue of more extensive testing
could be addressed in the future. He even suggested that the
employees could take the respirator test and continue to work
for him while seeking other employment. The Respondent
never requested the employees to perform the work in chemi-
cals that they stated concerned them.
The health concerns expressed by the employees here, were
neither feigned nor unreasonable, and they were advanced in
subjective good faith. Modern Carpet, 236 NLRB 1014 (1978),
enfd. 611 F.2d 811 (10th Cir. 1979); Du-Tri Displays, Inc., 231
NLRB 1261 (1977). They resulted from miscommunication.
Sherman, in April, had directed that the employees cease per-
forming work requiring the wearing of respirators. Thus, from
the employees’ point of view, the demand that they be respira-
tor certified appeared contradictory. At no prior time had the
employees demanded the same testing as that received by Dow

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272
employees. Thus, from Respondent’s point of view, the un-
precedented refusal of its employees to take the same respirator
test that they had taken in the past was incomprehensible. Re-
spondent was placed in the position of responding to the de-
mand for “proper physicals and training,” the same as the Dow
employees received. Although Fields did not understand the
unprecedented refusal of the employees to undergo respirator
fitness testing and did not agree with the employees’ concerns,
Respondent did not retaliate against the employees for acting
concertedly. Respondent did not request that the employees
abandon their demand for more extensive testing and training,
nor did it take any action that would have compelled them to do
so. Respondent simply requested that the employees undergo
the testing necessary to assure that they met the minimum
OSHA requirement, as set out in its contract with Dow, to as-
sure they were fit to perform the work that Respondent was
going to be assigned in 3 or 4 months.
Employees, under the Act, are privileged to seek to change
their terms and conditions of employment by concertedly re-
questing a change, concertedly protesting their employer’s
failure to grant a specific request or demand, and, ultimately, by
engaging in a work stoppage or strike. When employees strike,
the strike must be complete. The employees must withhold all
their labor. “They cannot pick and chose the work they will do
or when they will do it.” Audubon Health Care Center, 268
NLRB 135, 137 (1983). They cannot decide for themselves
“which rules to follow and which to ignore.” Bird Engineering,
270 NLRB 1415, fn. 3 (1984).
On May 27, the employees chose to use the circumstance of
the Respondent’s need to have them tested and fit for respira-
tors as the occasion to make a demand for more extensive
medical testing. Respondent refused to grant this demand. On
May 28, Fields impressed upon the employees the requirement
for respirator fitness testing as set out in his contract with Dow.
Wissman repeated his demand for additional testing. Fields
referred to the contract and explained that his request that em-
ployees be respirator fit had nothing to do with concerns re-
garding possibly working in AN, a work assignment that had
not been made. Fields also pointed out the requirements of his
contract with Dow to Boles and Payton. When he met with the
remaining employees who were refusing to be tested, he spe-
cifically stated that the employees’ demand could be addressed
in the future. Fields never required that any employee abandon
the demand for more extensive medical testing; he sought only
to have the employees comply with his request to take the res-
pirator testing.
Dow, in May, requested Respondent to assure that all of its
employees were respirator certified. Respondent advised its
employees of this requirement. Seven employees refused to
comply with the testing requirement in an attempt to compel
Respondent to agree to their concerted demand that they re-
ceive additional testing. Respondent discharged the employees
for the refusal to take the required respirator fitness test. In
arguing that this violated the Act, the General Counsel is effec-
tively arguing that Respondent was obligated either to accede to
the demand of the employees for more extensive testing and
training or cease demanding that the employees comply with its
requirement that they take the respirator test. I find no case
authority for this proposition. When employees concertedly
make a demand that is resisted by their employer, just as when
a labor organization makes a demand on behalf of employees
that it represents, the employees can either strike in support of
their demand or continue to work in accordance with their em-
ployer’s rules while arguing their position. They are not privi-
leged to set their own terms and conditions of employment by
deciding for themselves what work they are going to perform
and which orders of their employer they are going to obey. The
employees did not strike. They refused to comply with the or-
der that they take the respirator fitness test.
Respondent took no action against any employee for partici-
pation in the concerted presentation of the demand for more
extensive physicals and additional training. The terminations
occurred only after each employee refused to undergo the respi-
rator fitness test. In refusing the demand to undergo testing, the
employees were attempting to remain on their jobs while refus-
ing to work on terms lawfully prescribed by Respondent. Bird
Engineering, supra. “It is well established that a partial refusal
to work constitutes unprotected activity. Both the Board and the
courts have repeatedly condemned employees’ refusal to work
on the terms lawfully prescribed by the employer while remain-
ing on their jobs. As the Board has said, to countenance such
conduct would be to allow employees ‘to do what we would not
allow any employer to do, that is to unilaterally determine con-
ditions of employment.’” Highlands Medical Center, 278
NLRB 1097 (1986). See also Cambro Mfg. Co., 312 NLRB 634
(1993). The employees refused to obey their employer’s lawful
request. In so doing, they were attempting to set their own
terms and conditions of employment, activity that is not pro-
tected by the Act.
CONCLUSION OF LAW
The Respondent, by discharging those employees who re-
fused its lawful request to undergo respirator fitness testing, did
not violate the National Labor Relations Act.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended4
ORDER
The complaint is dismissed.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.