Robertson Industries

National Labor Relations Board - Board Decisions

Jan 30, 1975

216 N.L.R.B. 361 (N.L.R.B. 1975)

ROBERTSON INDUSTRIES
Robertson Industries and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America , Local 509 (UAW). Case
21-CA-12426
January 30, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On July 29, 1974, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and the
Respondent filed a brief in opposition to the General
Counsel's exceptions.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith and to adopt
her recommended Order as modified herein.
We agree with the Administrative Law Judge that
the Respondent violated Section 8(a)(1) of the Act by
coercively interrogating an employee regarding the
union activities and sympathies of employees, by
threatening to discharge employees if they engaged
in a strike or other protected work stoppage, and by
threatening employees with reprisals if they persisted
in their union activities. Unlike the Administrative
Law Judge we find that the Respondent also violated
Section 8(a)(1) of the Act by unlawfully discharging
34 employees on February 4, 1974, because they
engaged in protected concerted activities.'
The facts in the case at bar with respect to the
additional 8(a)(1) violation which we find may be
summarized as follows: As found by the Administra-
tive Law Judge, the Respondent's employees en-
gaged in a protected refusal to work in November
1973 because of problems concerning a heavy
workload. As further found by the Administrative
Law Judge, the employees returned to work after
being unlawfully threatened with discharge by the
Respondent if they did not do so. However, because
the underlying problems were not resolved after their
return to work, the employees began discussing the
possibility of obtaining union representation. In
furtherance of a resolution of their problems at work,
several employees contacted the Union and obtained
employees' signatures on union authorization cards.
The Union filed a petition for a representation
election on January 18, 1974. Several days thereafter,
as found by the Administrative Law Judge, an agent
i We find it unnecessary to consider whether such conduct also violates
Sec. 8(aX3) of the Act since the remedy which we would provide in light of
216 NLRB No. 62
361
of the Respondent unlawfully interrogated and
threatened an employee concerning protected activi-
ties of the employees. Thereafter, on Friday, Febru-
ary 1, 1974, a meeting of employees with the Union
was held during regular working hours at the request
of the employees. On the following Monday, Febru-
ary 4, 1974, the Respondent terminated each employ-
ee who had not worked the preceding Friday.
In considering the foregoing facts, as more fully set
forth in her Decision, the Administrative Law Judge
found that the employees who attended the February
1, 1974, union meeting thereby engaged in a
concerted work stoppage. However, 'she found
nothing in the record to establish that the purpose of
the February 1 meeting was to resolve any problems,
nor any evidence that the employees who attended
the meeting withheld their services in immediate
protest of any term or condition of employment or
for the purpose of seeking any immediate concession
from the Respondent. Instead, she found that the
employees merely took the day off to go to a union
organizational meeting. She further found that the
employees' conduct must be considered as a part of a
pattern of recurring or intermittent partial work
stoppage. Accordingly, the Administrative Law
Judge concluded that the concerted activity of the
employees was unprotected by Section 8(a)(1) of the
Act.
The record shows that, in disseminating informa-
tion about the February 1 meeting, employees
characterized its purpose as being a discussion and
resolution of problems at work; such was understood
by attending employees to be the purpose of the
meeting ; and, in fact, the employee problems and
feasible solutions thereto were discussed by the
employees at the meeting. In this regard we note that
employee Arturo Ramos testified that he told 35
employees that "we were working too hard and that
we could find a way so that we would not have to
work that hard so we would not be treated that way
... that's how we agreed to have the meeting...."
He further testified that prior to the meeting he
talked with about 30 people in the Employer's
parking lot and that "we spoke about having' a
meeting to talk about the problems we had at work;
that's why we couldn't go to work." He also testified
that "we agreed that we would have to have a
meeting in the Union so that each one of them could
remember the problems that he had so that they
could tell them, recount them to the union officials"
and that "at the meeting we spoke about the
problems each one of them had . . . we spoke about
having to work too hard . . . ; they sold us the gloves
and there was no . . . receipt; some of them were
such a finding is essentially the same as that which we provide herein.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sick due to their work and they refused to give them
a paper to go see the doctor; whenever some
machinery broke down they blamed us, saying that
we had to repair the machine . . . ; and there were
some other things ...." Likewise, employees
Vincente Mendoza, Miguel Magallon , Antonio
Lopez, and Jesus Mendoza testified, respectively,
that "we all organized to go to the union about the
problems we had at work"; that the February 1,
1974, meeting "was to talk about the problems we
had at work"; "was to straighten out work prob-
lems"; and "had to do with resolving some problems
that I saw we had there."
In light of this testimony we find, contrary to the
Administrative Law Judge, that a purpose of the
meeting of February 1, 1974, was to find a way to
resolve work-related problems of the employees, and
to seek help in securing a resolution. Although the
action taken by employees in absenting themselves
from work to discuss their work-related problems
may not have been the wisest or most prudent action
which they could have taken, this does not remove
their concerted action from the protection of the
Act.2 This is especially so in the case at bar where the
employees' attempt to directly resolve their work-
related problems with the Respondent was met with
an unlawful threat of discharge. We further find that
the testimony herein supports the conclusion that the
employees who met with the Union on February 1
were in the initial stages of protesting their terms and
conditions of employment and of seeking conces-
sions from the Respondent. The fact that the
employees were discharged before they could make a
formal demand upon the Respondent is of no
consequence , as noted by the Administrative Law
Judge in her discussion of the employees' earlier
concerted protected activity of November 9. In any
event, we find that the meeting of February 1 is the
type of conduct which we have, in the past, found to
be protected concerted activity within the meaning of
the Act .3
In further disagreement with the Administrative
Law Judge, we find that the February 1 meeting of
employees was not part of a pattern of intermittent
and recurring partial work stoppages such as were
present in the cases cited by the Administrative Law
Judge. In our view, the employees in the case at bar
were merely continuing their earlier efforts to have
their work-related problems resolved. While there is
no magic number as to how many work stoppages
must be reached before we can say that they are of a
recurring nature , certainly the two work stoppages in
the case at bar, which involved a total of 2 days'
2 N.LR.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 14-17
(1962).
3 N.LRB. v. The Good Coal Company, 110 F.2d 501, 503 (C.A. 6, 1940),
absence from work, do not, in our opinion, evidence
the type of pattern of recurring stoppages which
would deprive the employees of their Section 7
rights.4
In any event, as Wilbur Robertson, the Respond-
ent's president, testified, the November and Febru-
ary incidents involved different situations and
different people. While the November incident was a
protest concerning overtime, the February incident
involved other issues. Moreover, employees who
were not involved in the November incident partici-
pated in the February meeting. To hold in these
circumstances that the two occasions establish a
pattern of recurrent and intermittent work stoppages
would, in our view, disallow employees to engage in
more than one instance of concerted protected
activity during an indefinite period of time regardless
of the variety and number of conditions or occur-
rences protested and the identity of the individuals
involved.
Unlike the Administrative Law Judge, we also find
that the evidence in the case at bar supports a
reasonable inference that the Respondent knew of
the concerted activities of its employees on February
1. An unlawful interrogation of an employee by an
agent of the Respondent occurred about 1-1/2 weeks
before the February 1 meeting, and employee
Vincente Mendoza testified that the Respondent's
supervisor, Charles Martinez, told an employee that
it "seemed as if [the employees] were all agreed not
to go to work, that day." More importantly, we note
that the Respondent's president testified that on
February 1 "I obviously knew that they didn't show
up because they were unhappy about something." He
later testified, "I would assume it is something in the
plant. It had to be unhappy about something or they
would have come to work." He further testified that
on February 1 he "knew we were going to have an
election very shortly, just within a few days."
Also unlike the Administrative Law Judge, we find
that the evidence herein supports a reasonable
inference that the Respondent was substantially
motivated by a desire to rid itself of employees who,
on February 1, engaged in mutual aid and support of
one another in an attempt to resolve their work-
related problems. We base this finding on the
Respondent's knowledge that the employees' absence
involved work-related issues , the timing of the
discharges which occurred within a few days of a
pending election, and the fact that a number of the
employees who were discharged had not participated
in the earlier incident of November 9 nor received
the Respondent's warning that to repeat such
enfg . 12 NLRB 136 (1939); N .LRB. v. Clinton Woolen Manufacturing Co.,
141 F.2d 753, 756 (C.A. 6, 1944).
4 Crenlo, Division of Business Equipment, Inc., 215 NLRB No . 151 (1974).
ROBERTSON INDUSTRIES 363
conduct would result in discharge . Moreover, al-
though the Respondent contends that the discharges
were permissible because of a lack of notification of
their intended absence by the employees involved,
we note that at least 6 employees who had obtained
permission to be absent from work were discharged
along with the other 28 employees . In addition, we
note that neither a lack of permission nor the
possibility of damage to the Respondent 's equipment
was assigned by the Respondent as a reason for its
action at the time it discharged its employees.
Based on the foregoing and after a review of all of
the evidence and the inferences which can be
reasonably drawn therefrom , we conclude that the
Respondent violated Section 8(a)(1) of the Act by
discharging the following employees on February 4,
1974, at least in part , because they engaged in
protected concerted activity:
Enrique Aquino
Manuel Asebedo
Abelardo Bravo (or
Brabo)
Enrique Casas (Gurrola)
Ingacio Chavez
Jose Esqueda
Picot Feliciano
Baldomero Guillen
Jose Guillen
Macario Guillen
Salvador Ibarra
Jose Lozano
Guilberto Lopes
Antoniq Lopez
Carlos Lopez
Ruben Vega
Richard Sahun (also
Sahagum)
Rafael Lomas
Eustaquio Magallon
Miguel Magallon
Trinidad Mango
Vincente Mendoza
Victor Meza
Guillermo Padillo
Pedro Ponce
Arturo Ramos
Rafael Rivera
Rosendo Robles
Andres Sanchez
Bobby Varela
Truman White
Alejandro Mendoza
Jesus Mendoza
Ignacio Cuevas
Having found that Respondent violated Section
8(a)(1) of the Act by discharging the above-named
employees because they engaged in a protected
activity, we shall, in addition to the remedy provided
by the Administrative Law Judge, order that Re-
spondent offer these employees immediate and full
reinstatement and make them whole for any loss of
earnings they may have suffered as a result of the
unlawful action against them, by payment to them of
a sum of money equal to what they would normally
have earned as wages from the date of their discharge
until Respondent offers them reinstatement,5 to be
computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest in
5 On February 7, 1974, Jesus Mendoza returned to the Company and
was rehired by a new foreman named Booker . A few hours later , Booker
told Jesus Mendoza that he could not employ him beyond that day because
of an order he had been given . Jesus Mendoza did not work at the Company
accordance with Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
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 as
modified below and hereby orders that the Respond-
ent, Robertson Industries, Los Alamitos, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as herein modified:
1. Reletter paragraph 1(b) as 1(c) and add the
following as paragraph 1(b):
"(b) Discharging the employees whose names are
set forth in paragraph 2(a) of this Order, infra,
because they engaged in a protected concerted
activity."
2. Reletter paragraphs 2(a) and (b) as 2(c) and (d)
and add the following as paragraphs 2(a) and (b):
"(a) Offer the following employees immediate and
full reinstatement to their former jobs or, if their jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and to make them whole for any loss
of earnings each of them may have suffered by
reason of the unlawful action against him in the
manner set forth in the section. in this Decision
entitled `The Remedy':
Enrique Aquino Rafael Lomas
Manuel Asebedo Eustanquio Magallon
Abelardo Bravo (or Miguel Magallon
Brabo)
Enrique Casas (Gurrola) Trinidad Mango
Ingacio Chavez Vincente Mendoza
Jose Esqueda Victor Meza
Picot Feliciano Guillermo Padillo
Baldomero Guillen Pedro Ponce
Jose Guillen Arturo Ramos
Macano Guillen Rafael Rivera
Salvador Ibarra Rosendo Robles
Jose Lozano Andres Sanchez
Guilberto Lopes Bobby Varela
Antonio Lopez Truman White
Carlos Lopez Alejandro Mendoza
Ruben Vega Jesus Mendoza
Richard Sahun (also Ignacio Cuevas
Sahagum)
after that day. Thus, in the case of Jesus Mendoza , the several hours he
worked on February 7 would be deducted from the backpay which is
otherwise due to him.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(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 Order."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these
rights. More specifically,
WE WILL NOT coercively interrogate you re-
garding your union activities, sympathies, or
desires.
WE WILL NOT threaten you with reprisals if you
engage in union activities.
WE WILL NOT threaten to discharge you if you
engage in a strike or other protected work
stoppage.
WE WILL offer the employees named below
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges
previously enjoyed, dismissing, if necessary, any
replacements , and make them whole from the
date of their discharge for any loss of pay they
may have suffered as a result of our discrimina-
tion against them:
Enrique Aquino Rafael Lomas
Manuel Asebedo Eustanquio Magallon
Abelardo Bravo (or Miguel Magallon
Brabo)
Enrique Casas (Gurrola) Trinidad Mango
Ingacio Chavez
Jose Esqueda
Picot Feliciano
Baldomero Guillen
Jose Guillen
Macario Guillen
Salvador Ibarra
Jose Lozano
Guilberto Lopes
Antonio Lopez
Carlos Lopez
Ruben Vega
Richard Sahun (also
Sahagum)
Vincente Mendoza
Victor Meza
Guillermo Padillo
Pedro Ponce
Arturo Ramos
Rafael Rivera
Rosendo Robles
Andres Sanchez
Bobby Varela
Truman White
Alejandro Mendoza
Jesus Mendoza
Ignacio Cuevas
ROBERTSON INDUSTRIES
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS , Administrative Law Judge:
This case was tried before me in Los Angeles, California,
on April 23 and 24. The charge was filed by International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, Local 509 (UAW), herein
called the Union, and served on the Respondent on
February 7, 1974. The complaint which issued on March
31, 1974, alleges that Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act. Posttrial
briefs were filed by the General Counsel and by Respond-
ent on June 19, 1974.
The basic issue herein is whether Respondent unlawfully
discharged and threatened to discharge employees because
they engaged in union or other protected activities or
whether, as contended by Respondent, they were lawfully
discharged for failure to report for work on a scheduled
workday. Also at issue is whether Respondent is bound by
certain alleged activity of Max Delgado, herein called
Delgado, and if so whether such activity constituted threats
and interrogation in violation of Section 8(a)(1) of the Act.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a corporation with an office, place of
business and plant in Los Alamitos, California, is engaged
in the foundry manufacture of aluminum products. During
the year preceding the issuance of the complaint herein,
Respondent, in the course and conduct of its business
operations, purchased and received directly from suppliers
located outside the State of California, goods, materials,
and supplies valued in excess of $50,000.
The complaint alleges, Respondent admits , and I find,
that Respondent is, and at all times material has been, an
employer engaged in commerce and in operations affecting
ROBERTSON INDUSTRIES 365
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The parties stipulated , and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent is engaged in the manufacture and sale of
aluminum rims and wheels for automobiles . It has two
facilities . The Los Alamitos plant , the one involved herein,
melts the aluminum , and pours it into molds to produce
the rough aluminum castings which are transferred to the
La Palma plant for finishing and shipping . On January 31,
1974, Respondent had 130 employees of which approxi-
mately 60 were employed at Los Alamitos.
In July 1973 Respondent began experiencing a shortage
of aluminum which became rather acute in September and
October . During this period Respondent went on a 4-day
workweek . Prior thereto employees worked regularly 10
hours a day, 5 days a week and received premium pay for
all hours in excess of 40, hence they were paid at an
overtime premium rate for the entire day on Friday. This
appears to cause some confusion in the minds of some
employees as to whether they were obligated to work on
Fridays. However, the record is clear, and I find, that
except during the period when Respondent was experienc-
ing an aluminum shortage , Friday was a regularly
scheduled workday. On Monday, November 5, 1973,
Respondent's employees were informed that beginning
that week Respondent was returning to a 5-day week, 10
hours a day, Monday through Friday.
On Thursday afternoon, November 8, 1973, at the end of
the first shift, about 15 to 20 employees gathered in the
parking lot , discussed their feelings of tiredness and
exhaustion and decided to inform Respondent 's president,
Wilbur Robertson, that they would not work the following
day. Employee Arturo Ramos was selected spokesman and
all of them went en masse to see Robertson . There is little
disagreement as to the substance of the ensuing conversa-
tion . Ramos testified that he said the employees would not
be able to work the next day, Friday. Robertson asked
why. Ramos said it was because Foreman Charlie
Martinez made life "too hard" for them. To which
Robertson replied that he could not make them work
against their will. Upon Ramos' request Robertson
distributed the checks and told the employees that he
would discharge anyone who did not report for work on
the following Monday morning and if they ever refused to
i All dates hereafter will be in 1974, unless otherwise indicated.
s Most of the Respondent 's production and maintenance employees are
Spanish-speaking , and although not absolutely clear , it appears from the
record that only Spanish -speaking employees were involved in the Union
activities.
3 Delgado testified that it was about a week before February 1.
4 Respondent's polishing work is contracted out to Delgado whose
business is located next door to Respondent 's plant.
5 This is from Robertson 's version of the conversation with which
work again, they would be discharged. The principal
variation between the testimony of Ramos and Robertson
as to this conversation is that in Robertson 's account, he
testified that when he inquired of Ramos as to why the
employees didn't want to work on that Friday, Ramos
answered "Muy consardo" which means very tired. These
employees did not work on Friday, November 9, 1973, but
thereafter until Friday, February 1, 1974, they worked 5-
day, 50-hour weeks without incident.
Some time in December 1973, Respondent's employees
began discussing the possibility of obtaining union repre-
sentation. In early January 19741 about eight employees,
including Ramos , Vincente Mendoza and Jose Guillen,
met with union representatives Tony Rodriguez and Pete
Peterson at the Union 's offices , at which time they were
given union authorization cards to have employees sign.
During the next several days Ramos , Mendoza , and other
employees secured signatures on about 45 authorization
cards which they returned to Rodriguez.2 On January 18,
1974, the Union filed with the Board a petition for a
representation election covering a unit of production and
maintenance employees at Respondent 's Los Alamitos
plant.
Several days after the petition was filed, about January
21 or 223 Robertson asked Max Delgado4 what he knew
about "the union thing." Delgado said he didn't know
anything. According to Robertson, he then told Delgado,
"You must know something about it. I have this whatever
it is petition, the thing I got in the mail saying they had 30
percent of the work force and they were going to have a
hearing." Delgado then admitted he had heard something
about the Union. At this point Robertson told Delgado,
"See what you can find out about it. Find out who it is and
what their problems are, because I would like to talk to
them, see if they will talk to me." 5
That same day, according to Mendoza, he overheard a
conversation between Delgado and Jose Guillen.6 Delgado
asked Guillen what problems the employees had and stated
that he knew the employees wanted to organize a union.
Guillen replied that he didn't know anything, that he
thought it was just a rumor . Delgado said if the employees
had any problems they should speak to Robertson. Guillen
said he didn't have any problems, he didn't want to speak
to anyone. Mendoza further testified that Guillen said
Martinez treated the employees badly, that he gave them
too much work to do, and that Delgado said that if the
employees continued with their union activities it had been
said that Immigration would be notified. Delgado asked if
Guillen wanted more money . Guillen said no, he was
happy with his salary.
According to Delgado, he told Guillen he had heard that
the employees were trying to get a union in the shop.
Guillen answered that they were trying but he didn't think
Delgado is in essential agreement . I do not credit Delgado's testimony that
Robertson asked him to negotiate-to find out whether the employees
needed more money or more benefits . It is apparent from the totality of his
testimony that he had a tendency to testify as to his interpretation of what
Robertson meant. Whenever he was reminded that he was to testify as to
exact words used as nearly as he could recall , his version was essentially the
same as Robertson's.
6 General Counsel was unable to locate Jose Guillen and has been
informed that Guillen has returned to Mexico.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would be successful. Delgado said, "I know you are
going to have one from what I understand." Guillen said,
"Yes, we are just trying. We don't know for sure."
Whereupon, Delgado suggested that the employees talk to
Robertson, that Robertson could "make a deal" with them
on benefits, that they should try to resolve their problems
directly with Robertson rather than getting involved in
something that might cause them problems . Guillen said it
was too late, the employees wanted a union, that if he tried
to stop it the other employees might "gang up" on him.
Delgado said it was not his concern but the employees
might get in trouble with Immigration and with Internal
Revenue for claiming too many dependents.? Guillen said
if Respondent fired them, they wouldn't be able to get
"Gringoes" to work and if Respondent hired other illegal
aliens, they were going to send Immigration personnel to
Respondent's plant. Delgado admitted that he said the
employees were liable to get into trouble if they tried to
obtain union representation and that he told Guillen that
Robertson said he would talk to employees if they wished.
Following this conversation, Delgado telephoned Robert-
son and told him the employees did not wish to talk to him.
On or about January 16, five or six employees, including
Ramos , Guillen , and Mendoza met with union representa-
tives at the Union office. At that time, the Union
representatives said they needed to have a meeting and
asked the employees present to select a time and date. The
employees conferred and stated they felt that possibly they
would not be working on Friday, February 1 but if they
were, then possibly they could meet on Saturday or
Sunday. They agreed to a tentative meeting time of 1 p.m.
on February 1. Union Vice President Tony Rodriguez said
he would call the day before to confirm the time and date.
According to Ramos, on January 31, in the parking lot,
about 30 employees discussed the meeting scheduled for
the next day. They spoke about having a meeting to talk
about the problems they had at work. Ramos states this
was the reason they didn't go to work, however, there is no
evidence that the employees specifically discussed not
reporting for work on February 1. On cross-examination,
Ramos testified that he told the other day shift employees
that a meeting was being held so they could attend and tell
their problems. He did not talk to second shift employees
about whether they should report for their shift which
started at 3 p.m.
Employee Andres Sanchez testified that no one told him,
nor did anyone ask him, not to report tQ work on February
1. According to him, Ramos said the employees were
treated badly, had to work "too much" and the machines
were no good. Ramos said they were going to get the
Union in, that "whoever wanted to lose time from work
and attend and whoever did not wish to, would not have to
go." Employee witnesses Rosendo Robles , Eustaquio
T Delgado testified that when he was foreman at Rich Industries, it was
common practice to claim an excessive number of dependents . A number of
Respondent's employees were formerly in the employ of Rich Industries.
9 Eighteen were on the day shift and 14 on the second shift.
Approximately 13 employees reported for work on the day shift and II on
the night shift . No attempt was made on the record to correct the
discrepancy in numbers , however, preciseness in this regard is not material
to a determination herein.
9 Andres Sanchez and Vincente Mendoza testified that Martinez also
gave them pernussion . Also, second shift employees Miguel Magallon and
Magallon, Miguel Magallon, Baldomero Guillen, and
Antonio Lopez were not questioned as to what transpired
at that parking lot meeting of January 31. They merely
testified that Ramos told them a meeting would be held on
February 1.
Thirty-three employeess failed to report to work on
February 1. Twenty-six of these signed the attendance
sheet at the Union meeting. Ramos testified that approxi-
mately 40 or 45 people attended the meeting, however,
there was no testimony to explain the discrepancy between
the number of people signing the roster and the number
allegedly there. Also, two persons were present who were
not on the list of persons who failed to report for work.
Presumably some persons both worked and attended the
meeting. Some second shift employee witnesses testified
that they did not work because of the Union meeting even
though the meeting ended at 2 p.m., 1 hour before they
were to report to work. Eustaquio Magallon said he did not
report for work after the meeting because he did not want
to do so. Miguel Magallon said he didn't report because he
had already told Foreman Rose that he would not be
working that day. Jesus Mendoza , a day shift employee,
testified that he did not go to work solely because the
employee with whom he was to ride failed to pick him up.
It was only after this that he was invited to, and did, attend
the February 1 meeting. During the meeting the employees
discussed what they considered to be unfair working
conditions, including the rims quotas, the 10-hour days,
wages , holidays, vacations, insurance, and the cost of
safety equipment.
On February 1, Robertson, who was out of town, talked
by telephone to Foreman Charlie Martinez. Martinez said
more than half the employees didn't show up. Robertson
told Martinez to prepare a list of employees who didn't
report to work and to do the same thing for the night shift.
On Saturday, February 2, Martinez gave Robertson the
list. Robertson said he was going to terminate everyone on
the list. Martinez then told him that he had given Ramos,
Baldomero Guillen, Lopez and Salvadore Ibarra permis-
sion to not report to work.9 According to Robertson, at
first he drew a line through the names of the employees
who had received permission but after reflection concluded
that he could not believe the reason these employees gave
for their absence and that they had acted in concert to
show him they would come to work as they pleased.to
Therefore, to be consistent, he decided to discharge them
all and if any of these employees could later convince him
of a legitimate reason for being absent he could reconsider.
Respondent contends that not only does production
suffer in the obvious manner from having more than half
the workforce absent, but that having no notification
caused Respondent's setup crew to start certain procedures
that it is costly to interrupt. A four-man setup crew reports
Rosendo Robles testified that they received permission from second shift
Foreman Bill Rose not to report for work . Robertson stated he was told
Robles and Ruben Vega had permission . Martinez contends that pro-
duction is affected if more than four employees are absent and that he
would not have granted more than four persons permission to be absent.
10 Robertson testified : " I figured if they had all just acted in concert and
were evidently going to, I don't know what, show me that they would come
to work when they felt like it or didn 't feel like it, I felt in my mind to be
consistent was to fire them all.
ROBERTSON INDUSTRIES 367
at midnight . At I a.m. they begin painting the molds and
the 4 hour process of melting of metal commences in eight
furnaces , each of which contains a crucible in which 850
pounds of aluminum is melted . When the molders arrive at
5 a.m. they pour the molten aluminum into the molds. If
the molten metal is not removed, the crucible breaks which
incurs a bill of $400 plus the cost of labor. The setup
process was completed on the morning of February 1.
However, only 2 of the 10 or 12 molders" expected
actually reported to work.
On Monday morning, February 4, when the employees
reported for work, Robertson asked each one if he worked
on Friday. If the reply was yes, Robertson told them to
begin work . For those that replied no, he gave them their
paychecks and said "I can't have you deciding when to
come to work and when not to come to work. It is my
company and I don' t want you to work for me any more."
The discharged employees gathered on Respondent's
parking lot . Robertson approached the group. Ramos said,
"I want to talk to you." Robertson said, "Fine, talk." Then
Ramos said, "Never mind, I don't want to talk to you."
Robertson replied, "Okay. I want you guys to get out of the
parking lot . You don't work for me any more and you
don't belong here."
On February 7, employee Jesus Mendoza applied for a
job with Respondent to Foreman Booker . Booker hired
him. Robertson arrived at the plant between 9 and 10 a.m.
About a half hour later, Booker told Mendoza he would be
unable to employ him beyond that day. Booker said
Mendoza couldn 't stay, that he (Booker) had been given an
order.
Employee Luis Bowles testified that in the early part of
March he was informed he had visitors in Respondent's
office. When he arrived at the office ex-employees Pedro
Ponce, Ruben Vega , and Gilberto Lopez were there.
Ponce 12 asked Bowles if he would write a request to
Robertson in English . Ponce gave Bowles a piece of paper
signed by nine of the dischargees . He wrote the following
under these signatures as directed by Ponce:
Mr. Robertson:
We the above signed request that if possible,
consider us for reemployment . We realize the mistake
we made by listening to gossip . However we were told
that if we worked that Friday 1 Feb. 74 we would have
been picked up by the Immigration Service.
Thank you
L.G. Bowles for the above signed.
Thereafter Ponce, Vega and Lopez gave Martinez the
above-described document . Ponce was the spokesman. He
said he had picked up this petition and would like to see if
he could get back to work . He asked Martinez to give the
petition to Robertson which he did. Martinez testified that
Robertson told him he could tell the employees that he
would probably hire them in the future . According to
Martinez, he told Ponce he "couldn't hire him because we
were coming in court and there was going to be filed a
petition or something for a union , and [he] couldn't hire
anybody till then-until everything was cleared up." Later,
about a month before the trial herein , Antonio Lopez
asked to be reinstated and Martinez gave him the same
answer . Martinez says it is his understanding that several
other employees sought reinstatement . Robertson testified
that on probably six different occasions, Martinez told him
that some of the dischargees wanted to be rehired.
Robertson admits that he instructed Martinez that he was
not to rehire any of the dischargees, that he (Robertson)
would make any decision regarding rehiring the dischar-
gees or replacing them . He said he wanted to be apprised
of everything that went on and he would make all the
decisions.
B. Analysis and Conclusions
1. The Delgado incident
The evidence establishes that Delgado sought informa-
tion from Guillen as to the Union activities of Respond-
ent's employees and when Guillen verified that the
employees were indeed engaged in union organizational
activities , Delgado said if they persisted in such activities,
they were liable to get into trouble with the Immigration
and Internal Revenue Services . This clearly constitutes
threats of reprisal violative of Section 8(axl) of the Act if
Respondent is liable for Delgado's conduct. As to
Delgado's statements that he knew the employees were
trying to get a union, considering Robertson 's instructions
to Delgado and in the context of the entire conversation, I
find that the statements were designed to elicit information
regarding the Union activities of Respondent 's employees.
In these circumstances , and in the context of the threats of
reprisals set forth above , Delgado's statements constituted
coercive interrogation which would be violative of Section
8(axl) of the Act if Respondent can be bound by
Delgado's activities. Gates Air Conditioning, Inc., 199
NLRB 1101(1972).
The pivotal question is whether Delgado was an agent of
Respondent . Robertson admits that he requested Delgado
to find out which employees were involved in union
activities, what their problems were and whether they were
agreeable to discussing said problems with Robertson.
Thus, it is clear that Robertson specifically authorized
Delgado to interrogate employees and is therefore liable
for Delgado's conduct of such interrogation. On the other
hand, the record is devoid of any evidence that Robertson
either authorized or intended Delgado to threaten employ-
ees or that he knew that Delgado had done so. This,
however, does not negate Respondent 's responsibility for
such conduct. Section 2(13) of the Act provides: "In
determining whether any person is acting as an 'agent' of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts
performed were actually authorized or subsequently
ratified shall not be controlling." By inviting Delgado to
intrude into its labor relations affairs, Respondent has
inextricably allied him with management. Furthermore,
Delgado, upon Robertson 's instructions , told Guillen that
Robertson asked him to convey to employees Robertson's
1 i Sanchez testified that almost all of the molders were at the February I
union meeting.
12 Ponce and more than 90 percent of Respondent 's employees speak
only Spanish.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willingness to meet to discuss their problems with them.
Thus Delgado made it clear that Robertson had discussed
the employees ' union activities with him and had commis-
sioned Delgado to speak for him. Therefore, it was
reasonable for an employee to assume that the threats of
reprisal had emanated from Robertson. In these circum-
stances I find that Delgado was an agent of Respondent
when he interrogated Guillen and made threats of reprisal
if the employees persisted in their union activities and that
Respondent thereby violated Section 8(a)(l) of the Act.
Phillips Industries, Incorporated4 172 NLRB 2119, 2123-25
(1968); General Metal Products Company, 164 NLRB 64
(1967).
I reject Respondent 's contention that these threats were
de minimrs or isolated and that the policies of the Act
would not be effectuated by the issuance of a remedial
order. Although made to only one employee, they were of a
serious nature and affected all employees . General Stencils,
Inc., 195 NLRB 1109 (1972). Nor are the statements any
less coercive because made by a friendly individual. Caster
Mold & Machine Company, Inc., 148 NLRB 1614, 1621
(1964).
2. The November threat of discharge
There is no dispute that on November 8, 1973, 15 or 20
of Respondent's employees, acting in concert, decided not
to work the following day and that the reasons expressed
by them were the foreman's treatment of them that day
and a general feeling of tiredness and exhaustion . There is
some variation in the testimony as to the reasons given the
Employer for this refusal to work. Ramos testified that the
reason given was that Foreman Charlie Martinez made life
"too hard" for them. Robertson testified that the reason
given was that the employees were tired. Robertson did not
specifically deny that Ramos mentioned that Martinez
made life "too hard," nor did Ramos specifically deny that
he said the employees were very tired.13 I do not find these
versions to be inherently conflicting. Ramos testified that
the decision not to work was motivated by both reasons. In
fact when the evidence is viewed in its totality it appears
that the employees were tired because Martinez had
demanded what they deemed to be excessive work
performance . Ramos and Robertson both impressed me as
reliable witnesses who were honestly testifying as to their
recollection of the conversation. I therefore find that a
composite of their testimony more accurately reflects what
was in fact said and that Ramos mentioned both being
tired and that Martinez made life "too hard." I further
find, based on Ramos' account of the discussion among the
employees and Robertson's understanding as to why they
were refusing to work, that the essence of their motivation,
as articulated by Ramos, was that they were too tired to
work and that the mention of Martinez was made in
explanation as to why they were tired.
There is no cogent testimony to establish that the
employees either intended or conveyed to Respondent that
they were refusing to work in protest of treatment by
Martinez. I therefore reject General Counsel's contention
that the refusal to work was protected because it was in
protest of Martinez' exercise of supervision. General
Counsel's alternate theory is that the activity was a refusal
to work overtime because they were too tired, and that a
single concerted refusal to work overtime is protected
strike activity. Respondent contends that this was not
merely a refusal to work overtime but rather was a refusal
to work on a regularly scheduled workday. This appears to
be a distinction without a difference. Whether the refusal
to work is for a limited number of overtime hours at the
end of a workday or whether for an entire regularly
scheduled workday does not, in my opinion, change the
nature of the work stoppage . In either case it is a work
stoppage of limited duration. Similarly immaterial is
whether the refused schedule can be characterized as
overtime or regular time. The critical question is whether
this was a single concerted refusal to work scheduled hours
or whether it was part of a pattern of intermittent action.
First National Bank of Omaha, 171 NLRB 1145, enfd. 413
F.2d 921 (C.A. 8, 1969). The Board summarized the
applicable principle in Polytech, Incorporated, 195 NLRB
695 (1972), thusly:
[There is ] a presumption that a single concerted refusal
to work overtime is a protected strike activity; and .. .
such presumption should be deemed rebutted when
and only when the evidence demonstrates that the
stoppage is part of a plan or pattern of intermittent
action which is inconsistent with a genuine strike or
genuine performance by employees of the work
normally expected of them by the employer.
In the instant case, at the time of the alleged threat, that
presumption had not been rebutted. There was no previous
history of refusals to work overtime and there was no
indication of intent to repeat such refusal. I therefore
conclude that the November 9 refusal to work was
protected.
I further conclude that Robertson's threat to discharge
them if they again refused to work scheduled hours or if
they did not work the following Monday was violative of
the Act. In so doing, I have fully considered the fact that
there was nothing to indicate that the employees were
engaged in an indefinite refusal to work in protest against
some condition of employment. Rather, they informed
Robertson that they were refusing to work for one
particular day because they were tired. No demands were
made for a change in working conditions and there was no
allusion to the possibility of future work stoppage. If his
warning had been limited to a threat to discharge them if it
ever happened again, a logical conclusion would have been
that he was stating no more than he was legally allowed to
do-that he would discharge them if they engaged in
intermittent or recurrent work stoppages . However, Rob-
ertson's warning went further than that . He threatened to
discharge them if they did not return to work on Monday,
the next succeeding workday. If the employees had, in fact,
refused to work on Monday, they would not have assumed
the unprotected status of intermittent strikers. Rather they
would have been engaged in a continuous work stoppage,
assuming the status of strikers whom Respondent could
13 Neither of them were asked questions calling for dental or affirmation as to the account given by the other.
ROBERTSON INDUSTRIES
replace but not discharge . The fact that no demands had
been made does not affect the presumed protected nature
of the announced work stoppage . N.LR.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9, 14 ( 1962). Since a
continuation of the work stoppage on Monday presumably
would have been protected concerted activity, the threat to
discharge employees who did not return to work on
Monday is violative of Section 8(a)(1) of the Act. Leslie
Metal Arts Company, Inc., 208 NLRB 323 (1974).
3. The discharges
Section 7 of the Act protects "concerted activities for the
purpose of collective bargaining or other mutual aid or
protection." Thus, a work stoppage is protected if it is
concerted and if it is not for an improper objective or is not
conducted in an improper manner . Here, it is undisputed
that the employees were discharged because they failed to
report for work. The issue is whether such failure was
concerted and whether it was a work stoppage for a
protected objective. Counsel for General Counsel con-
tends, in her brief, "There can be no question that the
employees ' failure to work on February 1 in order to
attend the [union ] meeting was concerted." I agree that the
employees made a concerted decision to attend the Union
meeting which was scheduled for 1 p.m., 2 hours before the
end of the first shift and the start of the second shift.
However, there is no evidence of a concerted decision not
to report for work on that day or even that there was a
discussion of such. It is axiomatic that first shift employees
could not both attend the meeting and work a full shift.
However, they could have worked for most of the shift and
inasmuch as the meeting concluded at 2 p.m. second shift
employees could have both attended the meeting and
worked a full shift. On the state of the record, it appears
that although the employees agreed to a union meeting
during working hours, they made individual decisions as to
whether they would report for work. Nevertheless, I
conclude that implicit in the agreement to attend a union
meeting during working hours was a decision to not work
the day of the meeting if such was necessary to insure
attendance at the meeting. I therefore find that certain of
Respondent 's employees engaged in a concerted work
stoppage on February 1.
The critical issue then is whether the dischargees were
engaged in union or other protected activity. The com-
plaint alleges that the discharges constitute a violation of
Section 8(aX3) of the Act and was also an independent
violation of Section 8(axl) of the Act. As to the 8(aX3)
allegations, the evidence cannot support a fmding that the
employees were discharged for attending a union meeting,
even assuming that in the circumstances herein such
attendance was protected , for there is no evidence that
Respondent had knowledge that the absent employees
were attending a union meeting . Furthermore, the circum-
stances will not permit reliance on the Board's small plant
doctrine since Ramos admits that they tried to keep the
fact of the meeting hidden . Attendance seems to have been
confined to Spanish-speaking employees and several
369
English-speaking employees testified that they had no
knowledge that a union meeting was being held.
General Counsel argues that Respondent seized on this
failure to report to work to rid itself of unwanted union
adherents. Respondent certainly had knowledge that
certain of its employees were engaged in union activity
because of the representation petition. Further, since he
had requested Delgado to inquire regarding such activity,
it is apparent that he thought the sentiment for union
representation existed among the Spanish-speaking em-
ployees. Given the fact that the absent employees had
Spanish surnames , it wouldn't require a mental giant to
deduce that a number of these employees were probably
union adherents. However, Robertson testified that he
thought the employees were once again attempting to
unilaterally set their own work schedule. Certainly consid-
ering the November incident, he had reasonable grounds
for making this assumption, and such conduct by the
absent employees would constitute good cause for termina-
tion. Polytech, Incorporated supra. Thus, although Re-
spondent had knowledge of union activities on the part of
its employees and could reasonably expect that the absent
group contained a number of union adherents, Respondent
has established a prima facie showing of good cause for the
discharges.
The record contains no direct evidence to establish that
the reason advanced by Respondent was pretextual or only
partial and that Respondent's action was motivated by
unlawful considerations. However, specific evidence of
intent to encourage or discourage union membership is not
necessary.14 The illegal motivation may be inferred from
the record as a whole . Particular consideration is given to
evidence of other violations of the Act which indicate
antiunion animus . In the instant matter, I have found two
instances of conduct violative of Section 8(aXl) of the
Act-Robertson's threat to discharge employees if they did
not report to work the Monday following the November
work stoppage and the interrogation and threats made by
Delgado. The first instance which occurred 3 months prior
to the discharges, did not involve union activity, but did
involve Respondent's reaction to concerted activity of its
employees for mutual aid or protection. I am not
convinced that Respondent thereby evinced a hostility to
concerted protected activity by its employees. Rather, it
appears that Robertson was inept in his choice of words. I
am of the opinion that he intended only to warn the
employees that he would not tolerate their unilateral
setting of work schedules. As set forth above, nothing
occurred to indicate to him that the employees were
withholding their services in protest of some term or
condition of employment. He was told merely that they
were tired . He warned them that if such conduct was
repeated they would be discharged. Unfortunately he
stated also that they would be discharged if they stayed out
a second day . I found such statement to be violative of the
Act based on the presumption that if they withheld their
services for the second consecutive day they would have
enjoyed the status of strikers . In considering whether
Robertson's statement constituted a violation of Section
8(axl) of the Act , Respondent is bound by the effect the
14 The Radio O()lcers' Union of the Commercial Telegraphers Union, AFL IA.H. Bull Steamship Company) v. N.LR.B., 347 U.S. 17 (1954).
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
words used could reasonably be expected to have on
employees . That his intent was otherwise is immaterial.
Impact Die Casting Corporation, 199 NLRB 268 (1972).
However, such intent is material when evaluating the
degree of hostility evinced by Respondent toward concert-
ed protected activity by its employees.
The other 8(aXl) activity to be considered is that
engaged in by Delgado. Here Robertson, by asking
Delgado to try to get the union adherents to bring their
problems to him, indicated his preference that his employ-
ees not be represented by the Union. Having intruded
Delgado into its labor relations affairs, Respondent is
responsible for his conduct incident thereto, however, there
is no evidence that Respondent authorized or intended,
Delgado to resort to illegal means or even knew that he
had done so. Furthermore , there is no evidence that
Respondent pursued the matter further after Delgado
reported that the employees did not wish to confer with
Robertson . In all of the circumstances I find that
Respondent's opposition to the Union was not expressed in
such a fashion as to indicate that Respondent would
engage in unlawful discrimination in order to thwart the
Union . I therefore conclude that Respondent did not
discharge the alleged discriminatees in violation of Section
8(aX3) of the Act.
The complaint also alleges that the discharges were
violative of Section 8(axl) of the Act. General Counsel
argues that in November Respondent threatened to
discharge all employees who engaged in a concerted work
stoppage to improve their working conditions and proceed-
ed to make good its threat as soon as an opportunity
presented itself. General Counsel appears to be contending
that the alleged discriminatees were discharged because
they engaged in the concerted protected activity of
withholding of services in furtherance of their position in a
labor dispute . Specifically General Counsel contends that
throughout the months of December and January the
employees sought a remedy for objectionable working
conditions and to that end "organized and then attended a
meeting with union officials where they discussed their
problems at work and the most feasible solution to those
problems ." In support of this position , General Counsel
points to evidence that, in disseminating information about
the meeting, the meeting was characterized as being for the
purpose of "a discussion and resolution of problems at
work, and that such was understood by the attending
employees to be the purpose of the meeting." I find this to
be an incorrect characterization of the record. There is
nothing in the record to establish that the purpose of the
meeting was to resolve any problems. More importantly
there is no evidence that they withheld their services in
immediate protest of any term or condition of employment
or for the purpose of seeking any immediate concession
from Respondegt. It is true that at the meeting they
discussed what they considered as problem areas in their
working conditions . But that is the nature of any meeting
held by a union for the employees of an ei ployer the
union is attempting to organize. Such meetings normally
are not conducted with a view toward engaging in an
immediate protest of working conditions. Rather the thrust
is toward obtaining the necessary solidarity to resolve
problems in the future at the bargaining table. I find
General Counsel's argument intriguing and well presented,
but specious. The plain truth of the matter is that this
group of employees took the day off to go to an
organizational meeting held by the Union. The issue then
is whether such conduct is protected.
The Board has had limited opportunity to consider this
precise question. Only two cases have been found which
involve similar circumstances.15 In Gulf Coast Oil Compa-
ny, 97 NLRB 1513 (1952), instead of reporting for work at
the usual time of 7 a.m., all 11 of the employer's
truckdrivers went to the union hall where benefits of union
organization were discussed and the details of admission
into the union taken care of. They then returned to work
approximately 3 hours late. The Board concluded that,
apart from any element of discriminatory motivation, the
concerted activity of the drivers was not of a type which
immunized them against discharge. Rather, their activity
amounted to an unwarranted usurpation of company time
by the employees to -engage in a sort of union activity
customarily done during nonworking time. In Terri Lee,
Inc., 107 NLRB 560 (1953), several employees agreed to
absent themselves from work the next day to consult with a
labor union with respect to a cut in their piece-rate wages.
In conformance with this plan they sought, and some
received, permission for various reasons to be absent the
next day. As planned, they went to the union hall instead
of to work. The following day upon reporting back to
work, they were discharged. The Board concluded that
these employees had not engaged in a strike or other
concerted withholding of work. It found rather that the
employees merely intended to take the day off to obtain
information from the union, without any purpose thereby
of protesting the cut in piece rates or of seeking any
concession from the respondents. Furthermore, upon
learning of the employees' intention, the supervisor
specif}cally informed one of the employees that she had a
right to engage in such activity but would have to do it on
her own time or face discharge. This warning was shared
with the other employees. The Board concluded "The
question of granting employees time off from work is
peculiarly a matter of management prerogative." In both
cases the Board dismissed the allegations of the complaint
relating to the discharges.
Though old, these cases have never been overruled and
the basic issue involved is one which the Board has faced in
a variety of factual situations, i.e., whether a work stoppage
of limited duration is consistent with genuine strike action
or whether the employees were attempting to unilaterally
set their conditions of employment. It is well settled that
while employees may lawfully engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, they may not by such activities
is Most of the few cases involving union meetings during working time a grievance , and cases such as Wilkinson Manufacturing Company, 187
have been cases such as Morrison -Knudsen Co., 173 NLRB 56 (1968), where NLRB 791 (1971 ), where meetings were held in protest of specific terms and
poor permission had been obtained to hold the meeting, cases such as conditions of employment or in protest of the employer's unfair labor
Quaker Alloy Casting Company, 135 NLRB 803 (1962), involving in-plant practices.
meetings of very brief duration to formulate immediate action in support of
ROBERTSON INDUSTRIES 371
attempt to unilaterally determine their conditions of
employment . C. G. Conn, Limited v. N.L.R.B., 108 F.2d
390, 397 (C.A. 7, 1939); Honolulu Rapid Transit Company,
Limited, 110 NLRB 1806, 1809-11 (1954); Valley City
Furniture Company, 110 NLRB 1589, 1595 (1954). In this
regard, the court in the Conn case stated:
We are aware of no law or logic that gives the employee
the right to work upon terms prescribed solely by him.
That is plainly what was sought to be done in this
instance. [Refusal to perform overtime for an indefinite
duration .] It is not a situation in which employees
ceased work in protest against conditions imposed by
the employer, but one in which the employees sought
and intended to continue work upon their own notion
of the terms which could prevail.
Of the cases applying this principle , the factual situation
which more nearly approximates the facts here are the
overtime cases. In First National Bank of Omaha, supra, the
employer discharged a group of unrepresented employees
who engaged in a previously unannounced concerted
refusal to work overtime prompted by dissatisfaction with
the employer's overtime policies and occurring after they
had discussed such dissatisfaction with the employer to no
avail . The Board adopted the Trial Examiner's conclusion
that the employees had not engaged in a partial , intermit-
tent or recurrent strike but rather that the walkout was a
single strike of limited duration protected by the Act.
Similarly, in Polytech, Incorporated supra, the Board found
protected the refusal of employees to work overtime on one
particular day because they were tired. The Board held
that the presumption that a single concerted refusal to
work overtime is a protected strike activity had not been
effectively rebutted and concluded that the disciplinary
suspension of the employees was conduct violative of the
Act.
It is clear from these , and earlier , cases that there exists a
presumption that a single concerted refusal to work
overtime is a protected strike activity which can only be
rebutted by a showing that the stoppage is part of a plan or
pattern of intermittent action which is inconsistent with a
genuine strike or genuine performance by employees of the
work normally expected of them by the employer.
However, I am unwilling to conclude that the February 1
failure to report to work can be equated with the refusal to
work overtime cases . Those cases involve a withholding of
services in protest of the employer's overtime schedule,
even though the protest is only against that particular day's
schedule. Here , as in Terri Lee, Inc., supra, the employees
were not engaged in a strike or other concerted withhold-
ing of work . They merely intended , for their own
convenience , to take the day off to go to a union meeting
without any purpose thereby of protesting against any term
or condition of employment or of seeking any concession
from Respondent . In these circumstances , I am of the
16 1 deem it immaterial that some of the participants in the February 1
incident did not participate in the November refusal to work.
IT Although in not reporting to work, Jesus Mendoza was not engaged in
the concerted refusal to work by fellow employees , Respondent had no
knowledge as to his reason for not working and it was not unreasonable in
the circumstances to assume that all absent employees were engaged in a
opinion, that their failure to report to work was unprotect-
ed, notwithstanding the fact, argued by General Counsel,
that at the meeting they discussed their dissatisfaction with
work conditions . As pointed out above , such discussions
are the nature of union organizational campaign meetings.
To find attendance at such meetings during working time
to be protected activity would be to permit every group of
employees engaged in a union organizational campaign to
unilaterally hold at least one organizational meeting on
working time-with impunity, to take a day off, at their
whim, to hold a union meeting . I do not think the Act was
intended to afford such protection.
However, even assuming that the overtime cases are
dispositive of the instant matter, I still find the February 1
failure to report for work to be unprotected. This was the
second time a group of employees had refused to work on
Friday . Hence the refusal must be considered as part of a
pattern of recurring or intermittent partial work stoppage
and hence outside the protection of the Act.16 Cf. First
National Bank of Omaha, supra, and Poly Tech, Inc., supra.
This conclusion is not changed by the fact that several
employees had sought and received permission to be
absent from work for various spurious reasons. In the
circumstances, Robertson's assumption was reasonable,
and accurate, that these employees were attempting to
unilaterally set their own working conditions.17 For the
reasons set forth above I conclude that the discharges
herein were not violative of Section 8(axl) of the Act.18
As to the refusal to reinstate certain employees, since the
discharges were valid Respondent had no obligation to
reinstate them.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating an employee regarding
the Union activities and sympathies of employees, by
threatening to discharge employees if they engaged in a
strike or other protected work stoppage , and by threaten-
ing employees with reprisals if they persisted in their union
activities, Respondent has interfered with , restrained, and
coerced its employees in the exercise of their rights under
Section 7 of the Act and has thereby engaged in unfair
labor practices within the meaning of Section 8(axl) and
Section 2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(1) and (3)
of the Act as alleged in paragraph 7 and 8 of the complaint
herein.
THa REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(l)
of the Act, I shall recommend that the Respondent be
unilateral attempt to set their own working hours . Thus the question of
disparate treatment is irrelevant and no such evidence was adduced or
argument made.
Is In view of this conclusion, I do not reach Respondent's contention
that the discharges were permissible based on the lack of notification and
the resultant possibility of damage to equipment.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered to cease and desist therefrom and from infringing
in any like or related manner upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law and the entire record in this proceeding
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby recommend the
following:
ORDER 19
Respondent , Robertson Industries, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees about their union
activities , sympathies , and desires , threatening to discharge
employees if they engage in a strike or other protected
work stoppage , and threatening employees with reprisals if
they persist in their union activities.
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations , the findings, conclusions , recommendations
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.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its plant in Los Alamitos, California, copies of
the notice marked "Appendix." 20 Copies of said notice, on
forms provided by the Regional Director for Region 21,
after being duly signed by Respondent , shall be posted by
it for a period of 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.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than those found above.
so In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of-Appeals
Enforcing an Order of the National Labor Relations Board."