Leprino Cheese Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 21, 1968

170 N.L.R.B. 601 (N.L.R.B. 1968)

LEPRINO CHEESE MFG. CO.
Leprino Cheese Co., d/b/a Leprino Cheese Mfg. Co.
and Kenneth W. Gomez. Case 27-CA-2176
March 21, 1968
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 14, 1967, Trial Examiner Herman
Marx issued his Decision in the above-entitled case,
finding that Respondent had engaged" in and was
engaging in certain unfair-labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
Respondent had not engaged in an unfair labor
practice as alleged in the complaint with respect to
Daniel P. Maes and recommended dismissal of the
complaint in this respect. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the Respondent's excep-
tions and brief, and the entire record in the case,
and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Leprino Cheese Co., d/b/a
Leprino Cheese Mfg. Co., Denver, Colorado, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges that the Respondent
unlawfully discharged and refused to reinstate
Daniel P. Maes.
' The Trial Examiner stated that 7 or 8 a in. was about the customary
starting time for the alleged dischargees We correct such finding to show
170 NLRB No. 81
601
that Espinoza , one of the dischargees , testified that he was supposed to
begin work at 5 a in . on December 25, 1966, but did not arrive until 8 a.m
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The complaint
alleges that the Respondent, Leprino Cheese Co.,
d/b/a Leprino Cheese Mfg. Co. (herein the Com-
pany) has discharged, and refused to reinstate,
seven employees, Kenneth W. Gomez, Joe F.
Salazar, Edward Abeyta, Roger Espinoza, Daniel P.
Maes, John Sanudo, and Richard J. Macias,
because they "engaged in the protected concerted
activity of a strike"; has threatened them with
reprisal because they engaged in that activity; and
has, by such conduct, violated Section 8(a)(1) of
the National Labor Relations Act, as amended
(herein the Act).1
The Respondent has filed an answer denying, in
material substance, that it committed the unfair
labor practices imputed to it in the complaint 2
A hearing on the issues was held before me, as
duly designted Trial Examiner, in Denver,
Colorado, on June 6 and 7, 1967. The General
Counsel and the Respondent appeared through
counsel, and all parties were afforded a full oppor-
tunity to adduce evidence, examine and cross-ex-
amine witnesses, and submit oral argument and
briefs.
Upon the entire record, from my observation of
the witnesses, and having read and considered the
briefs filed with me since the close of the hearing, I
make the following findings of fact: _
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT'S BUSINESS;
JURISDICTION OF THE BOARD
Leprino Cheese Co., d/b/a Leprino Cheese Mfg.
Co. is a Colorado corporation; maintains an_office
and place of business in Denver, Colorado, where it
is engaged in the business of manufacturing cheese
from raw milk; and is, and has been at all material
times, an employer within the meaning of Section
2(2) of the Act.
In the course and conduct of its business, the
Company "annually" ships cheese valued in excess
of $50,000 from its said place of business directly
to points outside Colorado. By reason of such ship-
ments, the Company is, and has been at all material
times, engaged in interstate commerce, and in
operations affecting such commerce, within the
129 U S.C Sec. 15 1, et seq.
'The complaint was issued on April 18, 1967 , and is based upon a
charge filed with the National Labor Relations Board by Kenneth W
Gomez on December 27, 1966 Copies of the charge and complaint, and a
notice of hearing, have been duly served upon all parties entitled thereto
602 DECISIONS OF'NATIONAL- LABOR RELATIONS BOARD
meaning of Section 2(6) and (7) of the Act. Ac-
cordingly , the Board has jurisdiction of the subject
matter of this proceeding.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
Production employees at the Company's Denver
establishment work under, the immediate supervi-
sion of the plant manager, Robert Powell, who is
subject to direction by the plant superintendent,
Lester Kielsmeir. Both Powell and Kielsmeir are,
and have, been at all times material to the issues, su-
pervisors within the meaning of Section 2(11) of
the Act.,
The Company procures its raw milk from two
producer cooperatives in the area, and is com-
mitted, to purchasing a minimum amount (un-
specified in the record) daily and any' surplus that
may remain after the cooperatives have' met the
requirements of other milk users.
Normally, the employees have a 6-day workweek
ending on Saturday, but the number of daily and
weekly hours are, subject to fluctuation, varying
with the amount of milk to be processed, and from
time to time the management requires plant em-
ployees to work on Sunday, paying them at time
and a half their regular hourly rate for the Sunday
hours.
About a week before Christmas in 1966, six of
the Company's employees, Kenneth W. Gomez, Joe
F. Salazar, Edward Abeyta, Roger Espinoza,
Richard J. Macias, and John Sanudo (all, together
with Daniel . P. Maes, constituting the, alleged
dischargees named in the complaint), while in a
restaurant near the plant, discussed the prospect of
working on Christmas Day (which fell on a Sunday
in 1966), and decided to send a letter to the Com-
pany's president, James Leprino, to the effect that
they "wanted Christmas Day off." No such letter,
however, was sent.
3 Findings as to Kielsmeir's remarks are based on testimony by Gomez,
Abeyta, Macias , and Espinoza The Respondent would impugn the plausi-
bility of this evidence with managerial testimony that the milk surplus the
Company is required to take is likely to increase during school -holiday
periods such as Christmas because of the suspension of school lunch' pro-
grams, and that the Company expected a volume of milk deliveries of about
300,000 "pounds" per day for several days beginning December 24 (or
December 25, according to Kielsmeir who gave both dates), a quantity in
excess of the normal daily intake, and of the plant' s available storage
capacity of 210,000 pounds (apart from five cheese-making vats ofa gross,
overnight storage capacity of 5(,000 pounds) The thrust of this appears to
be that with such delivery anticipations , Kielsmeir would not promise or
predict the cessation of work about' noon on December 25 ' Actually, the
quantity delivered on that day was 217,229 pounds, and even much less
than that on December 24 (148,442 pounds), and on December 26 and 27
(178,634 and 174,119 pounds, respectively), and there is no objective or
hard evidence by which to measure the credibility of the self-serving claim
of the management's anticipations It is noteworthy, on that score, that the
Respondent's own intake records, the only ones in evidence (Resp Exh
5), do little for its claim that its milk intake expands during school holidays
such as Christmas. The intake volume for a 13-day period beginning
December 15 was highest on December 15 and 17, substantially higher
than for, December 24, 25, 26, and 27 Significantly, also, the intake of
some 148,000 pounds on December 24 resulted in a short workday on that
date, and it is thus plausible that Kielsmeir would similarly anticipate a
December 24 was a short production day at the
plant, five of the seven alleged- - dischargees,
completing their work by 1:45 p.m., and the other
two not long thereafter. During,' a "coffee break"
that day, Kielsmeir told a number of the employees,
including Gomez, Sanudo, and Abeyta, that they
would work a "short day" on Christmas Day, stat-
ing that they would quit about noon on that day.
The superintendent made much the same state-
ments to Macias and Espinoza on another occasion
on December 24.3
In the early afternoon of December 24, Powell
orally notified all of the employees that they were
to work on Christmas Day, telling at least some of
them (Gomez and Abeyta) that those who did not,
comply would be discharged.
B. The Alleged Discharges and Threats of Reprisal
On the morning of December 25, all of the al-
leged dischargees , except Maes, reported for work
in the neighborhood of 7 or 8 o'clock, at or near
their respective customary starting times. Later that
morning , between about 8:30 and 9 o'clock , during
a "break period" in the plant lunchroom , Gomez,
in the presence of Espinoza , Sanudo , Abeyta,
Salazar , and Macias , asked an employee named-
Bob Ray , who worked on vats in ' which cheese is
made , how many vats were to be ' processed, and
Ray replied , in substance , about 20 , and that the
employees would thus-work all -that day.'
Gomez , Salazar , Abeyta , Espinoza, Macias, and
Sanudo (all of the alleged dischargees , except
Maes ) left-the lunchroom , at the end of the"break
period" as a group, returning to the processing area-
where some of them regularly worked and
discussed among themselves the prospect , of "work-
ing the whole day ." The upshot of the discussion
was that they decided to ask for extra payfor the
day "if we did work ," in addition to the time-and-a'-
half rate to which they were entitled for Sunday
work . Gomez stated that he would speak to Powell
short day on December 25 and express himself to that effect on December
24 Indeed, his own testimony reflects some intimation to that effect, for he
quotes himself as telling employees on December , 24 that he planned to
limit the time worked on Christmas Day to "the milk we had to make up,"
and "hold [the remainder ] over until the following day " His testimony on
the subject, moreover , had a vague and evasive cast. He stated that he
could not recall to what employees he made the remarks he attributes to
himself, stating that he "probably" made them in the "coffee break "
Responding to a question whether he recalls telling employees that "they
would only have to work a half-day on Christmas ," he replied that that
"wasn 't my job," and then, when the question was pressed , conceded that
he could not remember whether he had made such a statement Notwith-
standing this , he also made the somewhat argumentative claim that he
"couldn't have possibly mentioned a specific time "-an assertion that
somewhat begs the question whether he had promised a "short day" or the
cessation of work about noon in sum, I am persuaded that he made state-
ments to the effect attributed to him and have made corresponding findings
i Gomez, who clocked out that day at 9'01 a.m , estimated the time of
the lunchroom discussion at one point as about 9 a m., and at another as a
"little after 7 " I am satisfied from the testimony of Macias and Espinoza
and the general sequence of events that morning that the discussion oc-
curred about 8 30, perhaps closer to 9 In any case, it is undisputed that
Ray told Gomez and other employees , in substance, that they would work
all of Christmas Day, and there is no reason to doubt that this led Gomez to
raise the subject with Powell, as will presently appear'm greater detail
LEPRINO CHEESE MFG. CO.
and ascertain whether the men were to work all of
Christmas Day.5
Gomez then sought out Powell and asked him
whether the men were to work all that day, and the
plant manager replied in the affirmative. Gomez re-
called for Powell that Kielsmeir had said the day
before that the employees would be required to
work only half a day, but Powell said that he could
do nothing about the matter. Then Gomez asked
why the employees could not be given extra pay for
the day, and Powell replied that that could not be
done.6
Gomez then rejoined Espinoza, Salazar, Abeyta,
Sanudo, and Macias, and told them of his conversa-
tion with Powell. Whether anything else was said in
the group at that point does not clearly appear, but
in any case, Gomez left the others again to talk to
Powell, and told the plant manager that "the boys"
were going to leave. -
Powell, accompanied by Gomez, then went to the
area where the latter had left the other employees,
and, addressing Gomez and the others collectively,
asked them what the difficulty was, and members of
the group replied that they wished to be paid "dou-
ble time and a half" (or "double time," according
to some of the testimony) for working on Christmas
Day. Powell responded, in substance, that the
request could not be met.
There was some discussion back and forth among
the group whether they should leave, one or more
of the six taking the position, in substance, that
Kielsmeir had broken his "promise" of a short day,
and that thus they were relieved of their "promise"
(as Macias and Gomez termed it, but meaning, ob-
viously, any requirement) that they work that day
without the extra pay requested, and the upshot of
the discussion was that all six employees decided to
s The record reflects some confusion as to the rate the men were seeking
According to Espinoza , the decision was to seek "time and a half plus
double," which, in the light of the whole record particularly the group de-
mand ultimately submitted to Powell, I take to mean double and one-half
time , although Espinoza acquiesced in a suggestion on cross-examination
that the group was seeking " double time " There is no dispute that the em-
ployees sought and requested extra or premium pay, and its precise extent
does not materially affect the issues I note , also, that the evidence of the
group discussion is somewhat scant In the main , I have drawn on
Espinoza's testimony At one point , his account may be read as indicating
that the discussion took place after Gomez spoke to Powell, but I infer from
subsequent testimony he gave and the relevant record as a whole that the
group discussion occurred before Gomez spoke to Powell , noting , in that
connection , that Macias testified that Gomez "went up there [ to Powell] to
ask him" for "double time for that day," and that Gomez testified that he
recalled "all of us deciding" to ask "for double time and a half."
6Gomez quotes himself variously as asking for "overtime ," double
time," and "double time and a half " As the employees were entitled to
time and one-half under their regular pay scale since the day was a Sunday,
one may reasonably believe that if Gomez asked for "overtime" rather than
a specific rate, Powell would construe the request as one for premium or
extra pay beyond time and a half That view of the matter is not negated by
the fact that Gomez reported to the other employees that Powell "wouldn't
give us any overtime or anything for this, just straight time " The allusion to
"straight time," appears to me , in the particular context , to be a reference
to the time-and-a-half rate the employees would regularly receive for Sun-
day work It may be noted , by the way, that Powell 's testimony does not
dispute, with any clarity at least, Gomez' account of the conversation
Powell describes a private conversation with Gomez that morning but it
was one that took place shortly thereafter and is also described by Gomez.
603
absent themselves for the rest of the day. They lin-
gered briefly after the decision, waiting for
someone to relieve Abeyta who operated equip-
ment called a "mixer," which, according to Powell,
performs a "vital" part of the cheese-making
process. While the men were waiting, Powell told
Macias to remain and operate the mixer. Macias
began to do so, but he has some physical disability
and seems prone to overreact to stress situations,
and he discontinued his work after a few minutes
when he experienced some nervousness, began "to
tremble," and became fearful that he would "ruin
the cheese." He told Powell of his concern, and
that he was near "collapse," and the plant manager
suggested that he lie down and rest, but Macias,
reiterating his fear, insisted on leaving, and asked
Gomez, who was then in the vicinity, to clock out
for him and assist him from the premises.
Sanudo, Salazar, Abeyta, Espinoza, and Gomez
(for Macias as well as himself) clocked out as a
group at approximately 9 a.m., and all six left the
premises soon thereater. Shortly before leaving,
Gomez sought to induce several other employees to
cease work for the rest of the day, but ' they
declined.
While the six who left were preparing to go,
Powell spoke to them as a group, seeking to induce
them to remain. The material sum of what he said
was that they were putting him in a bad position
because of the milk on hand 'and the cheese-
processing in progress; and that if they left, the
Company would discharge and "blackball" them,
and give them no "reference" (or "recommenda-
tion") for other employment. As Espinoza and
Abeyta were about to walk out the door of the
plant together, Powell told them that they were in
much "trouble."7
In any case , the particular premium rate requested by Gomez does not
materially affect the results here
' From Powell 's account , as well as those of the four employees in the
group who testified (Gomez, Macias , Abeyta, and Espinoza ), there can be
no doubt that Powell made a statement to the effect that they would be
discharged if they left and would be subject to other adverse consequences
The differences among the various accounts are made of verbal form and
emphasis rather than substance Powell denies that he used the word
"blackballed," quoting himself as telling the employees that "if they
walked out and punched that card that they couldn't expect to come back
to work for Leprino, and they couldn't expect to get a letter of recom-
mendation for any other job." This was as much as to threaten them
with discharge, denial of future employment with the Company, and
impediment in finding employment elsewhere, and closely approaches
a threat that they would be "blackballed" from future employment
Appraising the employees and their supervisor, and taking, into account
the atmosphere of dispute and stress which it is evident attended their
exchanges, I think it more likely that Powell would express himself in
terms the employees variously attribute to him than in the more restrained
language in which he quotes himself. In short , I am persuaded that, in
substance, he not only threatened to discharge the men but to have them
"blackballed." That view of the matter is given added weight by the un-
contradicted evidence that Powell told Espinoza and Abeyta that they
were in much "trouble " In any case, if the departure of the employees
was a protected concerted activity, it would make little difference
whether Powell used the language he imputes to himself or that attrib-
uted to him by the employees, for in either situation, it conveyed a threat
of reprisal
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As of the time the six left, Maes, who apparently
resides near the plant, had not yet arrived, and
Powell, because he was shorthanded, went to Maes'
home, and, stating that "some of the boys (had)
left," requested Maes to come to work. The latter
agreed and came to the plant,, but noting upon ar-
rival that a substantial number of the employees
were absent, and concluding from that that he
would have to work "late," he left the premises
about 9:30 a.m., without punching in or out or
doing any work.
At some unspecified time that day after Macias
left, Kielsmeir, having been told by Powell that
Macias "appeared sick," telephoned the latter's
home to offer him reemployment. Macias was not
at home, and Kielsmeir spoke to someone he be-
lieved to be Macias' wife or mother and "offered to
put him back on the payroll if he'd just come
down." Later that day, about 6 p.m., Macias'
mother told him that Kielsmeir had called, but
Macias did not return the call because he assumed
that by that time, the day's work at the plant had
been finished. Apart from the fact that Macias'
mother told him that Kielsmeir had called there is
no evidence that she told her son of the offer of
reemployment.
The Company received some 217,000 "pounds"_
of milk during the day on December 25, much of it
prior to the departure of Gomez and the others
from the plant. As of the time they left, a con-
siderable portion was in various stages of conver-
sion into cheese. Once begun, the process is a con-
tinuous one, requiring the addition of bacteria,
cooking, cooling, and timing of various of the
procedures. Failure to complete them with proper
timing can result in a spoiled or deficient product.
Following the group departure, in order to
complete the necessary procedures, the manage-
ment transferred employees from other occupations
and enlisted the temporary services of sons of
management personnel. The necessary processing
tasks were completed by about 3:30 p.m., and
would have been finished about an hour earlier
with the regular complement of employees. Much
of the completed product, however, was deemed of
inadequate quality for the requirements of the in-
tended customer, and was sold by the Company to
another concern for a lower price (not specified in
the record).
On the following morning, Gomez, Espinoza,
Abeyta, Macias; Maes, Salazar, and Sanudo went to
the plant together. Finding the front entrance
locked, Gomez, while the others waited, entered
the plant through a rear door in search of the Com-
' Kielsmeir admittedly spoke to the men on the occasion when they came
for their checks, but expressed "doubt" in his testimony that he asked them
any questions, stating, also, that he does not "think they spoke to me." This
vague testimony is ineffective as a denial of Gomez' account of the conver-
pany's president, James Leprino, to discuss "the
situation" of the previous day. Encountering
Leprino's father, Michael, who is chairman of the
Company's board of directors, and James' brother,
Louis, also an officer of the Company, Gomez told
them that he wished to explain to James what had
occurred the previous day, and Michael Leprino
replied that the management did not wish to hear
any explanation and ordered Gomez from the
premises stating that "we don't want to see you
around here, any more." Louis Leprino, however,
asked why the men had walked out, and Gomez-
responded that Kielsmeir had "broke(n) his
promise" that the employees would "only .. have,
to work a half day on the 25th." Louis Leprino
replied that "that doesn't have anything to do with
the matter," and then also ordered Gomez-from the
premises. Gomez rejoined the others, told them
what Michael Leprino had said, and all seven then
left. There is no evidence that Gomez told the
Leprinos that the others were outside the plant, or
that the management was aware of their presence.
Some days later, all seven returned in a body to,
the plant to draw the wages due them. The, group
encountered Kielsmeir, and the latter asked
Gomez, in the presence of the others, why they had
walked out. Gomez replied that they had done so
because Kielsmeir had broken his "promise" that
the employees were to work but half a day on
Christmas. Kielsmeir made no other comment and
walked off.'
On April 21, 1967, following service of,a copy of
the complaint upon the Company, the Company
wrote a letter to each of the seven, stating that the
Company was thereby offering to reinstate the
given individual to "a job at the same -rate and
under the same conditions which you would have
attained had you been working continuously- with
the Company since December 25, 1966," that the
offer was "open for ... acceptance in writing"
delivered to the Company,by noon on April 28,
1967, with the privilege, in the event of acceptance
of the offer by April 26, of reporting a week after
April 28; that the Company had violated no law;
and that the reinstatement offer was not to be con-
strued as admitting that any "back wages are paya-
ble." Each letter was sent on the date it bears and
was received "in due course of mailing" by the ad-
dressee.
Of the seven, only Macias and Sanudo accepted
reinstatement to their respective positions. -There is
no evidence that any of the others replied to the
offer. Macias returned to work on May 1, 1967, at
an hourly rate 7 cents less than ,his previous one,
cation, and I credit the latter. I dispense with a recital,of remarks made to
the group on this occasion by Michael Leprino, Jr , a son of the Company's
board chairman, as they add nothing of substance to this case.
LEPRINO CHEESE MFG. CO.
but with no other change in the rights and
privileges he had enjoyed at the time of his termina-
tion. As stipulated at the hearing the reduction was
due to a readjustment in the rates for "all produc-
tion employees" put into effect by the Company on
February 1, 1967, "by reason of ... certain amend-
ments" to- the "Federal Wage Hour Act" (Fair
Labor Standards- Act). Such a reduction would
have "taken place had Macias continued to work for
the Company after December 25, and been in its
employ on February 1, 1967. Sanudo resumed his
employment- on April 29, 1967, at his former rate
and with no alteration in the rights and privileges
he had previously enjoyed. In short, Macias and
Sanudo were -fully reinstated to their respective
former, or substantially equivalent, jobs on the
dates upon which they respectively returned to
work.9
C. Discussion of the Issues; Concluding Findings
Putting the case of_ Maes aside for separate
disposition, there can be no doubt that the decision
of the others to leave, as well as their departure,
was concerted, and that they were discharged
because they ceased work. Powell as much as told
them that their dismissal would take effect as of the
time they clocked out.10 The critical question, then,
is whether the conduct of the dischargees, as the
General Counsel claims, constituted "concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection," within the purview
of Section 7 of the Act, and was thus protected
from dismissal and threat of reprisal.
The'Respondent offers three justifications for the
discharges: (.1) That the dischargees took a holiday
in disregard of the Company's work requirements;
(2) that, at best, the cessation of work was an un-
protected "partial" strike, which the Respondent
defines, in substance, as the withholding of services
for only "part of a work schedule"; and (3) that the
strike was unprotected because the sudden depar-
ture of the employees created a risk of spoliation of
the cheese then in process of production, and
resulted in some deficiency in the product.
Evaluating these claims, in order, it is true as the
Respondent asserts, and Gomez, Espinoza, Abeyta,
and Macias testified in effect, that the employees
s The letter to each of the seven alleged dischargees, except Sanudo, set
forth a specified reinstatement rate lower than the one the given individual
had previously received, and explained that the reduction resulted from "a
general wage readjustment for all processing employees," effective Feb-
ruary 1, 1967, "because of recent federal laws" (the Fair Labor Standards
Act amendments). As in Macias' case, I am satisfied that each of the other
employees to whom reinstatement was offered at a lower rate would have
received that rate because of the "general wage readjustment" had he con-
tinued to work after December 25 In short, the validity of the offer to
those employees is unaffected by the-lower rate offered.
3i After testifying that Macias left with Gomez' assistance , Powell stated,
"I conceded that he (Macias) wasn't in shape to work that day," thus im-
plying, perhaps unintentionally, that he acquiesced in Macias' departure
because the latter was ill, and did not discharge him. Powell did not say to
whom he "conceded" Macias' physical unfitness, and the remark appears
605
intended to absent themselves only for the rest of
Christmas Day, but to read their walkout as a
"mere" disobedient taking of 'a holiday or an un-
protected "partial" strike is to misconceive the
reach of the evidence.
When Gomez first spoke to Powell, the manager
confirmed the information Gomez and his com-
panions had received from Ray to the effect that
they would work substantially beyond noon on
Christmas Day. The six employees regarded this as
a breach of -Kielsmeir's "promise" of a workday
until about noon, and this led them to seek extra
compensation for work that day as an alternative to
performance of the "promise," and then to leave in
a body when they failed to secure satisfaction of
their request from Powell.I" However unso-
phisticated their procedure, what the men had done
was to engage in "collective bargaining" with
Powell over their hours of work and compensation,
albeit without the traditional instrumentality of a
union ; and it is clear that the asserted breach of
Kielsmeir's "promise" and the rejection of the col-
lective demand for extra compensation for the
holiday work were central ingredients of their deci-
sion to leave.
The walkout, in other words, was substantially
more than a mere departure on a holiday. It was, in
essence, an implementation of the employees' posi-
tion in the "collective bargaining" in which they
were engaged, and amounted to a concerted ex-
pression , through joint economic action, of protest
of the management's failure to observe Kielsmeir's
"promise," and of their alternative demand for
extra compensation for work on Christmas Day.
On that score, this case resembles N.L.R.B. v.
Washington Aluminum Co., 370` U.S. 9, in signifi-
cant respects. There some employees, who had
previously complained individually to the manage-
ment about inadequate heating of the plant where
they worked, left the premises, in a group, during
working time one day, because of insufficient heat-
ing, without making a concerted demand for cor-
rection, and were discharged. The Supreme Court,
holding the group departure to be protected, and
the discharge unlawful, pointed out that employees
do not "necessarily lose their right to engage in
concerted activities ... merely because they do not
to be a generalization tacked on to his statement that Macias left the
premises Perhaps, what Powell meant was that he believed that Macias
was unwell or that he "conceded" that such was the case to Kielsmeir, who,
in fact, quotes Powell as telling him that Macias "appeared sick " That the
management regarded Macias as in a discharge status after he left is
evident from Kielsmeir's telephone message later that day offering "to put
him back on the payroll " I am convinced from the record as a whole that
although Powell was sympathetic when Macias became unwell, when the
latter insisted on leaving, Powell included him in the discharge action and
the related threat of reprisal
Contrary to the Respondent, I find no materiality in the fact that Ray
had no authority to tell the employees that they would work a full day on
Christmas Day, and that they would have finished about 2:30 p in had they
remained ( a time , incidentally, well beyond noon)
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present a specific demand upon their employer to
remedy a condition they find objectionable"; that
Section 7 "is broad enough to protect concerted
activities whether they took place before, after or at
the time such a demand is made" (emphasis sup-
plied); and that "(h)aving no bargaining represen-
tative and no established procedure by which they
could take full advantage of their unanimity of
opinion in negotiations with the company, the men
took the most direct course to let the company
know that they wanted a warmer place in which to
work." The Court also noted that a plant rule for-
bidding an employee to leave his work without per-
mission could not operate to justify a discharge for
activities that Section 7 protects.
Here, comparably, the fact that the Company
determined what hours it would require employees
to work cannot defeat their right to engage in "con-
certed activities" for purposes protected by Section
7; and the cessation of work by the six employees
was, by implication, a continuing protest of the as-
serted breach of Kielsmeir's "promise," and the ex-
pression of a condition that they would continue or
resume their work on what remained of the holiday
if they were given the extra compensation they had
expressly demanded before they decided to leave.
In short, the walkout was a continuation, by other
means, of the "collective bargaining" in which the
employees had engaged before they left.l2
I do not share the Respondent's view of the walk-
out as an unprotected "partial" strike, although it
was, to be sure, intended to be of limited duration,
that is, for the remainder of the workday. The
Respondent summons to its support a large number
of cases which need not be examined beyond a
summary of distinguishing features which set them
apart from this case. The decisions upon which the
Respondent places primary reliance involve refusals
to work on recurring portions of a required work
schedule, or on a portion likely to recur. Typical of
these situations are work stoppages for selected
periods such as overtime hours, parts of a regular
schedule, or weekend workdays.i3
In the cited cases, the employees had a meaning-
ful alternative of engaging in a total strike in the
sense of a full cessation of work to bring about a
change of conditions but, instead, resorted to a
selective choice of working and striking time, thus
in effect dictating terms and conditions of their em-
12 " the use of economic pressure by the parties to a labor dispute is
part and parcel of the process of collective bargaining " N L R B v. In-
surance Agents' International Union, 361 U S 477, 495 The view I take of
the walkout is reinforced, rather than diminished, by testimony offered by
the Respondent that "they (the six who left) wanted everybody else to walk
out," and that Gomez besought others to do so The six employees were in-
volved in a "labor dispute," as that term is defined in Section 2(9) of the
Act, and in the context of events, the solicitation of others to join in the
walkout suggests more an effort to enlist the weight of added numbers on
the employees ' side in the dispute than a mere invitation to leave on a
holiday
13 I dispense with citation of all the cases on the point in question men-
tioned by the Respondent in its brief, deeming it sufficient to cite the fol-
lowing as illustrative of its position . Brantly Helicopter Corporation, 135
ployment. Here, in contrast, the dispute did not re-
late to future working conditions, but rather, to a
special situation limited to a particular day which is
observed almost universally,in the western world as
a holiday, but one on which the management
required the employees to work as long as it saw fit.
The alternatives available to the employees were of
necessity limited by the special nature of the
dispute. To remain much beyond noon, as_Powell
led Gomez and his companions to believe -they
would when he confirmed for Gomez that they
would be required to work all day, would lose them
the holiday time they wanted, and had been told by
Kielsmeir they would have.. To engage in astrike
after Christmas for "'retroactive pay" would, no
doubt, have been a "legitimate tool," as the
Respondent states in its brief, but putting -aside the
possible folly of such a course by employees of the
economic and occupational status of those involved
here, the fact still remains that such a strike could
not give them the holiday time they had concert-
edly sought, nor fulfillment of the "promise" Kiel-
smeir had made. To adopt the Respondent's view of
the walkout would be, in practical effect, as much
as to say that the employees had a choice of sub-
mitting to their Employer's requirements for Christ-
mas Day on pain of losing their jobs or engage in a
strike of unlimited duration even though their ini-
tial goal-fulfillment of Kielsmeir's "promise"-
could no longer be reached. I am unable to give
Section 7 so tilted a meaning , and find no warrant
for it in any of the cases upon which the Respon-
dent relies. On the contrary, a single concerted
work stoppage, whether of predetermined duration,
as here, or spontaneous ; to protest or secure terms
and conditions of employment is not a "partial"
strike in the sense that the Respondent uses the
conception, and is within the protection of Section
7.14
Nor may such protection be withheld here
because the walkout interfered with timed
procedures necessary to complete cheese-
processing, resulting in- deficiency in some of the
processed product. Economic loss, both to em-
ployers and striking employees, is often a
byproduct of labor disputes, and much as one
regrets such loss, the fact remains that the exercise
of Section 7 rights by employees in pursuit of legiti-
mate aims does not depend on whether they protect
NLRB 1412, 1414 (refusal to work at straight time on Saturday after a
holiday to compel overtime pay for future Saturday work following
holiday); Honolulu Rapid Transit Company, Limited, 110 NLRB 1806
(strike by transit workers limited only to weekends), C G. Conn, Linuted v
N L.R B , 108 F 2d 390 (C A 7) (refusal to work weekly hours over 40 to
compel extra rate for excess hours), Pacific Telephone and Telegraph Com-
pany, 107 NLRB 1547 (intermittent work stoppages during regular shifts).
I note, in passing , that two cases, Doti Chenucal Company, 152 NLRB
1150, and Vernon T Mercer, 119 NLRB 673, cited by the Respondent, do
not go to the point for which the Respondent cites them
14 Modern Motors, incorporated v N L.R B , 198 F 2d 925 (C.A 8).
N L R B. v J I Case Company, 198 F 2d 919 (C A. 8), N L R B. v Kenna-
mental, Inc., 182 F 2d 817 (C A 3), N.L R.B v Buzza-Cardozo, 205 F.2d
889 (C A 9), cert denied 346 U S 923 1
LEPRINO CHEESE MFG. CO.
their employer against consequential loss in the
quality or price of his product.
That view of Section 7 is clearly applicable here.
The walkout resulted from a legitimate grievance
and economic aim and was not designed to damage
the product. Before the six men walked out, Gomez
told Powell of Kielsmier's "promise" the day be-
fore, and that the men intended to leave, and
Powell was given two opportunities to redress their
grievance, one by Gomez and later by the group,
yet did nothing, in essence, beyond insisting that
they remain or suffer discharge and other reprisals.
This is not to suggest that the legality of the walk-
out hinged on the existence of such prior dealings,
but only to point out that the management had a
choice, albeit one of the alternatives entailed some
concession acceptable to the employees, and chose
the course that resulted in the deficient product.
The course of events here is far different from
that in N.L.R.B. v. Marshall Car Wheel and Foundry
Co., 218 F.2d 409 (C.A. 5), upon which the
Respondent relies heavily. There a strike was
deliberately timed, without prior notice, to coincide
with the pouring of molten metal, which, if per-
formed with insufficient help, could have caused
"substantial property damage and secuniary loss"
to the employer, and the court held the walkout to
be unprotected because the employees had
deliberately created a hazard of substantial damage
to the plant. The doctrine of the case has been
limited to situations involving a danger of "ag-
gravated" injury to persons or premises.ls Obvi-
ously', this is not such a case.
In summary, I hold, for the reasons stated, that
the Company discharged Gomez, Abeyta , Salazar,
Espinoza, Macias , and Sanudo because they en-
gaged in concerted activities protected by Section 7
of the Act; and thus violated Section 8(a)(1) of the
Act by each such discharge. I find, too, that the
Company also violated Section 8 (a)(1) as a result
of Powell's threat that if the six employees left
the plant, the Company would discharge and
"blackball" them, and give them no 'reference or
recommendation for other employment; and as a
consequence of Powell' s statement to Espinoza and
Abeyta that they were in much "trouble ," a remark
I construe, in the context of circumstances, as a
threat of reprisal because they joined the walkout.
I reach a different result in the case of Maes, who
came to the plant briefly after the six dischargees
had gone. There is no evidence that he had any
awareness of what had taken place, and the record
will not support a conclusion that he left because
he wished! to join in the walkout. In fact, according
to his own account, he left simply because he
noticed that a substantial number were absent, and
15 Central Oklahoma Milk Producers Association , 125 NLRB 419, 435
(expressly noting that a hazard of milk spoliation is not within the reach of
the Marshall holding ), N L R B v Morris Fishman and Sons , Inc , 278 F 2d
792, 796 (C.A 3).
607
felt that if he remained, he would have to work
"late" because of the absence of others.
He was certainly not discharged on December
25, and I find no warrant for a-conclusion that he
was either unlawfully dismissed or denied reinstate-
ment subsequently. To be sure, he went to the plant
with Gomez and the others on the day after Christ-
mas, but for all that appears, Gomez did not ask for
reinstatement of any of the others (or himself, for
that matter), and there is no indication that the
management even so much as knew that Maes and
others were outside the plant waiting for Gomez. It
would be no more than a guess to say on-this record
that the action of the Leprinos on that occasion in
ordering Gomez to leave had any application to
Maes, whatever meaning may be attached to the in-
cident with respect to the five men who had been
discharged with Gomez the day before.ts
Nor is the General Counsel's case regarding
Maes made by the fact that the group, including
Maes, went to the plant some days after Christmas
Day to draw the accrued wages due them, .and that
Maes, like the others, was given a check for the
wages he had earned. As far as Maes is concerned,
it would be a guess to read anything more into that
incident than that he called for money that was due
him and received payment.
The sum of the matter is that Maes abstained
from work, and left the plant on Christmas Day for
his own separate purpose; that he has never been
told by the management that he had been, or would
be, discharged; and that he has-never tested his own
employment status by returning to the plant to
work, attempting to work there, or applying for em-
ployment. As the record does not establish that
Maes was either unlawfully discharged or denied
reinstatement, I shall recommend dismissal of the
allegations of the complaint pertaining to him.
As regards the letters of April 21, 1967, I find no
reason to deny them efficacy as offers of reinstate-
ment. On the contrary, taking into account the fact
that Macias and Sanudo accepted the offers made
them, and were restored to their respective jobs,
the record warrants a conclusion, and I find, that
the offers were made in good faith.
In view of that conclusion, the remedy will pro-
vide that back pay be tolled for the dischargees as
of April 28, 1967, the date specified in each letter
for expiration of the offer contained therein.
That reflects my view that the message left by
Kielsmeir at Macias' home was not an effective
offer of reinstatement. For one thing, I think it like-
ly, in view of the,shortage of help after the walkout
on Christmas Day, that Kielsmeir wished Macias to
return to work that same day. That being the case,
Macias was not obliged to abandon the concerted
16 In view of the conclusion reached above regarding the discharge of
Gomez and the five men who left with him, I see no purpose in determining
whether the treatment accorded Gomez by the Leprinos amounted to a
denial of reinstatement of Gomez or any of the other dischargees
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, in which he was engaged for the day as a
condition of -restoration of his job. For another
matter, it is not established that Macias was told by
his mother that Kielsmeir had "offered to put him
back on the payroll." Substantially all that appears
is that Macias' mother told him that Kielsmeir had
called, and that Macias did not return the call
because of the lateness of the hour when he was in-
formed that Kielsmeir had called. Moreover, that
Macias did not pursue the matter is not surprising
in view, of the treatment accorded Gomez by the
Leprinos on December 26. In-that regard, it matters
not whether the Leprinos were aware of Macias'
presence outside the-plant. Gomez told Macias-and
the others what had happened, and it would be only
natural for Macias to conclude that he was similarly
unwelcome. The setting when Macias called for his
paycheck some days later would only tend to con-
firm his belief that he was still in disfavor with the
management, for Kielsmeir saw him, yet so far from
giving any indication that he had changed his mind
about Macias' discharge status, followed a course
that would reasonably lead one to a contrary con-
clusion, walking away, without further comment,
when, in response to his query as to the reason for
the walkout, Gomez told him that he had broken
his "promise."
III. THE EFFECT OF THE UNFAIR LABOR- PRACTICES -
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion II, above, occurring in connection with the
operations, of the Respondent described in section
x, above, have a close, intimate, and substantial
relation 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.
IV. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices violative of Section
8(a)(1) of the Act, ,l shall recommend below that it
cease and desist therefrom and take certain affir-
mative actions designed to effectuate. the policies of
the Act. -
As the discharges and threats of reprisal go to the
heart of rights guaranteed employees by Section 7
of the Act, in order to make effective the interde-
pendent guarantees of Section 7, 1 shall recommend
an order below which will have the-effect of requir-
ing the Respondent to refrain in the future from
abridging any of such rights of employees of the
Respondent's Denver establishment.'
Having found that the Company unlawfully
discharged Kenneth W. Gomez, Joe F. Salazar, Ed-
ward Abeyta, Roger Espinoza, Richard J. Macias,
and John Sanudo on December 25, 1966, that it of-
fered each of them reinstatement to his former, or a
substantially equivalent, position as of April 28,
1967, and that Macias and Sanudo accepted the of-
fers respectively made them, but that the other
discharged employees did not, I-shall recommend
that the Company make each of the six dischargees
whole for any loss of pay he may have suffered by
reason of his discharge by payment to him of a sum
of money equal to the amount of wages he would
have earned, but for his discharge, between
December 25, 1966, and April 28, 1967, together
with interest thereon, as provided below; and that
the said loss of pay, plus interest at the rate of 6 per
cent per annum, be computed in accordance with
the formula and method prescribed by the National
Labor Relations Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & 'Heating
Co., 138 NLRB 716, to which the parties hereto are
expressly referred'.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact,
and upon the entire record in this proceeding, I
make the following conclusions of law:
1. The Company is, and has been at all material
times, an employer within the meaning of Section
2(2) of the Act.
2. Each of the individuals discharged, as found
above, has been, at all material times, an employee
of the said Company, within the meaning of Section
2(3) of the Act.
3. By discharging the said employees and other-
wise interfering with, restraining, and coercing em-
ployees,in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the Company
has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. The record does not establish that Daniel P.
Maes ' was discharged or denied reinstatement in
violation of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record
in this proceeding, I recommend that Leprino
Cheese Co., d/b/a Leprino Cheese Mfg. Co., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise denying employ-
" N L.R.B. v Ent, tstle Mfg Co., 120 F 2d 532 (C A. 4); May Depart-
mint Stores v. N L.R.B, 326 U S. 376; Bethlehem Steel Co. v. N.L R B.,
120 F.2d 641 (C A.D.C.).
-LEPRINO CHEESE MFG.
ment to, any employee of its said Denver establish-
ment because he engages, or has- engaged, in any
concerted activities for the purpose of collective
bargaining or other mutual aid or protection of em-
ployees.
(b) In any manner threatening, or otherwise in-
forming, any employee of its Denver establishment
that he will be discharged, denied employment,
blackballed, denied any reference or recommenda-
tion for employment, or subjected to any other
reprisal, if he engages, or has engaged, in any con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection of em-
ployees.
(c) In any other manner interfering with,
restraining, or coercing employees employed at its
Denver establishment in the right to self-organiza-
tion; to form, join, or assist any labor organization;
to bargain collectively through representatives of
their own choosing; to engage in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection; or to refrain from
any or all such activities, except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment, as authorized in 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) Make Kenneth W. Gomez, Joe F. Salazar,
Edward Abeyta, Roger Espinoza, Richard J.
Macias, and John Sanudo whole, together with in-
terest, in the manner, according to the method, and
to the extent set forth in section IV, above, entitled
"The Remedy."
(b) Preserve until compliance with any order for
backpay made by the National Labor Relations
Board in this proceeding is effectuated, and make
available to the said Board and its agents, upon
request, for examination and copying, all payroll
records, social security payment records, timecards,
and all other records relevant to a determination of
the amount of backpay due under the terms of such
order.
(c) Post at its plant in Denver, Colorado, copies
of the attached notice marked "Appendix." 18 Co-
pies of said notice, to be furnished by the Regional
Director for Region 27 of the National Labor Rela-
tions Board, after being duly signed by Respon-
dent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.19
CO. 609
IT IS FURTHER RECOMMENDED that so much of the
complaint be dismissed as alleges that the Company
unlawfully discharged and refused to reinstate
Daniel P. Maes.
i" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap•
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
iS In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discharge, or otherwise deny
employment to, any employee of our Denver
plant, because he engages, or has engaged, in
any concerted activities for the purpose of col-
lective bargaining or other mutual aid or pro-
tection of employees.
WE WILL NOT threaten, or otherwise inform,
any employee of our Denver plant that he will
be discharged, denied employment,
blackballed, denied any reference or recom-
mendation for employment, or subjected to
any other reprisal, if he engages, or has en-
gaged, in any concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection of employees.
Inasmuch as the National Labor Relations
Board has found that we unlawfully discharged
Kenneth W. Gomez, Joe F. Salazar, Edward
Abeyta, Roger Espinoza, Richard J. Macias,
and John Sanudo on December 25, 1966,
because they engaged in such concerted activi-
ties, but that we subsequently offered to rein-
state them as of April 28, 1967, WE WILL pay
each of them the wages he lost between the
date of his discharge and the date when we of-
fered to reinstate him.
WE WILL respect the right of our employees
to self-organization; to form, join, or assist any
labor organization; to bargain collectively
through representatives of their own choosing;
to engage in concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection; or to refrain from any or all
such activities.
350-999 0 - 71 - 40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to join, or to refrain This notice must remain posted for 60 consecu-
from joining, any union. tive days from the date of posting and must, not be
altered, defaced, or covered by any other material:
LEPRINO CHEESE CO.,
D/B/A LEPRINO CHEESE
MFG. CO.
(Employer) If employees have any question concerning this
notice or compliance with its provisions, they may
Dated By communicate directly with the Board's Regional
Office, 2240 New Custom House, 721 19th Street,
(Representative) (Title) Denver, Colorado 80202, Telephone 297-3551,