Tamara Foods, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1307 (N.L.R.B. 1981)

TAMARA F:()())S. INC,
Tamara Foods, Inc. ad Sharon Teuton. Case 14-
CA- 14248
September 30. 1981
'~CISION AND ORDER
BY Mi: -RS FANNIN(;, JINKINS, ANI)
7IMMARMAN
On April 21, 981, Administrative Law Judge
William A. Gershuny issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Re-
spondent filed an answering brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm only so much of
that Decision as is consistent with this Decision
and Order.
The complaint in this proceeding alleges that Re-
spondent violated Section 8(a)(1) of the Act by un-
lawfully threatening to discharge and discharging
11 employees for engaging in a strike over un-
healthy working conditions. The Administrative
Law Judge dismissed the complaint on the ground
that the activity of the II employees, although
concerted, was not protected by Section 7 of the
Act. As further explained below, we find that the
Act protects the rights of employees to strike over
what they honestly believe to be unsafe and un-
healthy working conditions, and we find, conse-
quently, that Respondent's threat of discharge and
its discharge of these employees for exercising
those rights violated Section 8(a)(l).'
Respondent, which is engaged in the business of
preparing and selling frozen foods, uses an ammo-
nia refrigeration system to freeze its products. On
several occasions ammonia gas from the refrigera-
tion system leaked into the production area where
Respondent's employees work. Employees testified
without contradiction that the ammonia fumes had
caused them to experience nausea, burning sensa-
tions in their noses and throats, headaches, tight-
ness in their chests, and difficulty in breathing.
Respondent recognized the problem of occasion-
al ammonia leaks and had unilaterally promulgated
' he Adnilnisiralius I Las JUdgc fiildll to Imake 1 pcclic Iindl g t
the (ieneral ounscl's alegation,. coitaied i pir 5 oif I1le complaint.
that Rpoldcenil iolaled Sc Xi(a)(li of he Acl h Ilreli llIg ii tI1S
charge cmnplo ccs ho cloclked out of Ihe plantl to protcl Iheir s rrkilg
conditilon The record stIow 1hal this iue svas, full! ;and furls liilgt.id
;iI the hearing Accordiligl, a e conslider his iill I he proper hrec
us
work rules to be followed in such situations.-
Under these rules, sick leave was to be granted
automatically to any employee upon request: any
employee wvho believed that an unsafe or unhealthy
condition existed at the plant would be permitted
to leave his or her work station and remain in the
lunchroom or directly outside the plant, with full
pay, until the condition was corrected: and any em-
ployee who clocked out prior to the end of the
shift would be discharged.
On the morning of September 11, 1980, 15 or 20
minutes into the start of the 7 a.m. shift, the em-
ployees in the production area smelled ammonia
leaking from the freezer system and began to feel
its noxious effects. The employees, on their own
initiative, left the production area and congregated
in the lunchroom. Supervisor Helen Bury was then
informed of the leakage and the employees were
told to wait in the lunchroom until the problem
was corrected.
Approximately 45 minutes later, Supervisor Bury
informed the employees that the ammonia leakage
had been stopped and directed them back into the
production area. When the employees returned to
the production area they found that it still con-
tained ammonia fumes and was, in fact, worse then
before. After working for 10 or 15 minutes, the em-
ployees retreated to the lunchroom for a second
time and again reported the problem to Supervisor
Bury. A number of employees went outside the
plant for fresh air. Shortly thereafter, the employ-
ees were again assured that the ammonia problem
had been corrected and were directed to return to
the production area.
Upon their return to work for a third time, the
employees continued to feel the harmful effects of
the ammonia fumes. At this point, the entire com-
plement of employees left their work stations.
Many of the 50 employees began to clock out.
Supervisor Bury tried to convince the employees
to stay at the plant and told them that they could
remain in the lunchroom and be paid for waiting
until the ammonia problem was corrected. Several
employees objected, however, and said that they
were not going to wait at the plant. When Plant
Manager A. J. Schopp noticed that employees
were waiting in line to clock out, and was told that
several employees had already done so, he told
them that they had "better go clock back in" and
that those who clocked out should not "bother
coming in tomorrow." Schopp further stated that
any employees who left work should consider
themselves fired.
' Rcl Ls T'old Crlt viplo'\e, 11- Ii rprlcnlt ht\ .1 1rl g' ,1]/. ,t I
;Ild R st tll ll r 1- i l' 11 . it rt;' r. ,1 ,,l 1 p;i1I o ,.il , cll. 11.l1t
hirl.lllllic 11rlg ilcrilll
258 NLRB No. 180
,10()7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Schopp's statement that clocking out
would mean discharge, most of the employees de-
cided to remain at the plant. Some of those who
had already clocked out clocked back in. However,
11 employees remained clocked out and left the
plant, for which they were discharged.
The Administrative Law Judge found, and we
agree, that the action of these 11 discharged em-
ployees was clearly "concerted activity" within the
meaning of the Act. However, unlike the Adminis-
trative Law Judge, we find that the conduct was
also clearly protected.
It has long been established that Section 7 of the
Act protects the rights of employees to engage in
protests, including work stoppages, over what the
employees believe to be unsafe or unhealthy work-
ing conditions. N.L.R.B. v. Washington Aluminum
Company, 370 U.S. 9 (1962); Union Boiler Company,
213 NLRB 818 (1974); Du-Tri Displays. Inc., 231
NLRB 1261 (1977); E. R. Carpenter Co., 252
NLRB 18 (1980); Service Machine & Shipbuilding
Corp., 253 NLRB 628 (1980).
In N.L.R.B. v. Washington Aluminum, supra, a
case which closely parallels the instant proceeding,
the U. S. Supreme Court held that employees have
the right under Section 7 of the Act to walk off
their jobs, without prior notice to their employer
and without following established plant rules for-
bidding employees from leaving their work stations
without permission, if their action is a means of
protesting what they perceive to be intolerable
working conditions. The general rule is that the
protections of Section 7 do "not depend on the
manner in which the employees choose to press the
dispute, but rather on the matter that they are pro-
testing." Plastilite Corporation, 153 NLRB 180, 184
(1965), enfd. in pertinent part 375 F.2d 343 (8th
Cir. 1967). Inquiry into the objective reasonable-
ness of employees' concerted activity is neither
necessary nor proper in determining whether that
activity is protected. As we stated in Plastilite Cor-
poration, supra, "we must respectfully disagree with
any rule which would base the determination of
whether a strike is protected upon its reasonable-
ness in relation to the subject matter of the labor
dispute. When a labor dispute exists, the Act
allows employees to engage in concerted activity
which they decide is appropriate for their mutual
aid and protection, including a strike, unless . . .
that activity is specifically banned by another part
of the statute, or unless it falls within certain other
well-established proscriptions." Whether the pro-
tested working condition was actually as objection-
able as the employees believed it to be, or whether
their objection could have been pressed in a more
efficacious or reasonable manner, is irrelevant to
whether their concerted activity is protected by
the Act. International Van Lines, 177 NLRB 353,
364 (1969): Du-Tri Displays. Inc.. supra : Modern
Carpet Industries. Inc., 236 NLRB 1014 (1977),
enfd. 611 F.2d 811 (10th Cir. 1979): Ben Pekin Cor-
poration, 181 NLRB 1025 (1970), enfd. 452 F.2d
205 (7th Cir. 1970).
Nor does the fact that employees fail to make a
specific demand to the employer automatically
render their conduct unprotected. Particularly
where the employees are not represented by a
labor organization which may speak to the employ-
er on their behalf, "if from surrounding circum-
stances the employer should reasonably see that
improvement of working conditions is behind the
walkoff, it may not penalize the employees in-
volved without running afoul of Section 8(a)(1)."
South Central Timber Development, Inc., 230 NLRB
468, 472 (1977); N.L.R.B. v. Washington Aluminum,
supra.
Applying these principles to the instant case, we
find that the 11 employees who clocked out to pro-
test the presence of ammonia fumes in their work
environment were clearly engaged in protected
concerted activity. The presence of ammonia fumes
in the work environment is, obviously, a working
condition. The uncontested testimony of these em-
ployees demonstrates that their walkout was caused
by concern over these fumes and their desire to see
that "something might be done about it." The
record in this case permits no doubt that their con-
cerns were made known to Respondent. The Ad-
ministrative Law Judge was seemingly of the view
that the employees were not entitled to leave the
plant because such action was in derogation of an
existing plant rule and because Respondent had
provided a procedure which adequately dealt with
the problem. We disagree.
Of particular significance here is the fact that
Respondent's employees are not represented by a
labor organization or covered by a collective-bar-
gaining agreement containing a "no-strike" clause.
The fact that Respondent has unilaterally estab-
lished and promulgated a rule restricting this activ-
ity is insufficient to deprive employees of a statu-
tory right. Nor can it be said that, because Re-
spondent has p:ovided an alternative solution to
the problem, the employees are required to accept
it. No matter how reasonable the alternative might
seem, if the employees choose to exercise their stat-
utory rights, they can not be penalized for doing
so.
We must also reject the Administrative Law
Judge's conclusion that the employees' walkout
was unprotected because the Occupational Safety
and Health Administration found Respondent's
13()
TAMARA FOODS. INC.
plant not to violate its regulations, or because an-
other statutory scheme might have afforded the
employees some form of relief. The rights guaran-
teed to employees under the National Labor Rela-
tions Act are distinct from and are not subordinate
to the provisions of the Occupational Safety and
Health Act. Du-Tri Displays, supra. To hold other-
wise might seriously diminish the rights of employ-
ees to engage in concerted activity for their mutual
aid and protection and would constitute an abdica-
tion of the role that Congress has assigned to the
National Labor Relations Board in protecting those
rights.
Accordingly, for the reasons stated above, we
find that Respondent violated Section 8(a)(l) of the
Act by discharging the 11 employees because they
engaged in a strike over working conditions. We
also find that Plant Manager A. J. Schopp's state-
ment to employees, "If you clock out and go home
today, don't come back tomorrow . . . consider
yourself fired," was a threat of discharge for en-
gaging in protected activity and therefore in viola-
tion of Section 8(a)(l) of the Act."
Lastly, we agree with the General Counsel that
the 11 discharged employees are entitled to full and
immediate reinstatement and backpay. Employees
who are unlawfully discharged while engaged in a
lawful strike are entitled to backpay from the date
of the discharge until the date that they are offered
reinstatement. Abilities and Goodwill. Inc., 241
NLRB 27 (1979), enforcement denied on other
grounds 612 F.2d 6 (st Cir. 1979). The Adminis-
trative Law Judge noted that the 11 discharged
employees did not request reinstatement. However,
under our current decisions, there is no require-
ment that employees who are unlawfully dis-
charged during a protected strike must request re-
instatement; "since it is the employer who has
acted unlawfully in discharging the employee, the
burden is on that employer to undo its unfair labor
practice by offering immediate reinstatement to the
employee, and by reimbursing the employee for all
losses suffered from the date of its discriminatory
action." Abilities and Goodwill, Inc., supra.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act, we shall order that it cease
and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of
the Act.
Having found that on September 11, 1980, Re-
spondent unlawfully threatened its employees with
' See Inn lnternatiom l/. 232 NlRB 3,53 (1977). cnXld o'22 1 2d
237 (6th Cir 1980).
discharge for engaging in a lawful strike, we shall
order that it cease and desist from such unlawful
conduct.
Having found that, on September 11, 1980, Re-
spondent unlawfully discharged II of its employ-
ees 4 for engaging in a lawful strike over working
conditions and has thereafter refused and failed to
offer these employees full and immediate reinstate-
ment, we shall order that it cease and desist from
such unlawful conduct and offer the 11 unlawfully
discharged employees full and immediate reinstate-
ment to their jobs or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges. We shall also order that Respondent
make whole these 11 employees for any loss of pay
they may have suffered because of Respondents un-
lawful discharge by payment to them of a sum
equal to that which they would have earned from
the date of their discharge until they are reinstated
or receive valid offers of reinstatement, less any net
interim earnings. Backpay shall be computed in ac-
cordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977).5
CONC LUSIONS OF LAW
I. The Respondent, Tamara Foods, Inc., Old
Monroe, Missouri, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent violated Section 8(a)(1) of the Act
on September 11, 1980, by threatening its employ-
ees with discharge if they engaged in a strike over
working conditions and by discharging employees
who had engaged in a lawful strike.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, the National Labor Relations Board
hereby Orders that the Respondent, Tamara Foods,
Inc., Old Monroe, Missouri, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations
Act by: threatening its employees with discharge if
I [I,, I1 ulllilimt. f lI charged cnplo \cc, are Sus.,I A' .c. Noml
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5
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det hlsct 1OI 111i J¢rillltlka "-' ft h th~crcill
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they engage in a lawful work stoppage and dis-
charging employees because they engaged in such
protected activity.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Offer Susan Awe, Naomi Best, Margaret
Bressie, Mary Briscoe, Karen Harding, Joyce Him-
melsbach, Betty Leyerle, Georgia Lourance,
Sharon Peine, Sharon Teuton, and Anna Travis im-
mediate and full reinstatement to their former jobs
or, if those positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing,
if necessary, replacement employees, and make
them whole for their loss of earnings, with backpay
to commence on September 11, 1980, with interest
thereon, to be computed as described in the
remedy section of this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at Respondent's plant in Old Monroe,
Missouri, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 14,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' Il the eent Ihal this Order is enforced by ai Judgmen of a Uinted
States Court of Appeals, the words i the notice reading "Posted by
Order of the Nationial Labor Relatotisr Board" shall read "l'oled I'ursu-
anl to a Judgnlet of the United States Coiurl of Appeals Ilnforcing an
Order of the National .abor Relations BIoard"
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF HE
NATIONAl. LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WILI. NOT threaten employees with dis-
charge for engaging in work stoppages over
working conditions.
WE WILI. NOT discharge employees for en-
gaging in work stoppages over working condi-
tions.
WE WILLt. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILl. offer Susan Awe, Naomi Best,
Margaret Bressie, Mary Briscoe, Karen Har-
ding, Joyce Himmelsbach, Betty Leyerle,
Georgia Lourance, Sharon Peine, Sharon
Teuton, and Anna Travis immediate and full
reinstatement to their former jobs or, in the
event such positions no longer exist, to sub-
stantially equivalent employment, without
prejudice to their seniority and other rights
and privileges previously enjoyed.
WE WILL make these employees whole for
any loss of pay or benefits which they suffered
by reason of their unlawful discharge, with in-
terest.
TAMARA FOODS, INC.
DECISION
STATEMENT IOF THE CASE
WII.I.IAM A. GERSHUNY, Administrative Law Judge:
A hearing was held on February 25, 1981, in St. Louis,
Missouri, based on a complaint issued on December 15,
1980, alleging violations of Section 8(a)(1) of the Nation-
al Labor Relations Act, as amended. Respondent's
answer denies any violation of the Act.
At issue is whether Respondent unlawfully discharged
II employees who clocked out before the end of their
shift to protest allegedly unhealthy working conditions.
Upon the entire record, including my observation of
witnesses and their demeanor, I hereby make the follow-
ing:
FINI)INGS 01 FCc AND CONCI.USIONS oi LAW
I. JURISI)ICTION
The complaint alleges. the answer admits, and I find
that Respondent, which is engaged in the preparation of
frozen food products with annual interstate shipments in
131()
TAMARA FOODS. INC
excess of $50,000, is an employer engaged in commerce
within the meaning of the Act.
II. THE UNFAIR I ABOR PRAC'ICES
The relevant facts are simple and essentially undisput-
ed.
Respondent, in the preparation of frozen onion rings
and mushrooms, uses an ammonia refrigeration system.
From time to time, ammonia has leaked into the atmos-
phere of the production areas causing temporary respira-
tory discomfort. In addition, the processing of the onions
temporarily causes tearing. At all relevant times, there
has been a ventilation system in the work areas and an
evacuation plan, both of which meet the standards im-
posed by the Department of Labor's Occupational Safety
and Health Administration.
The following employment policies, fully understood
by the employees, were in effect at all relevant times:
1. Sick leave would be granted automatically to
any employee upon request.
2. Any employee who believed that there existed
an unsafe or unhealthy condition at the plant was
permitted to leave the work station and remain in
the lunchroom or outside the plant, with full pay,
until the condition was corrected.
3. Any employee who otherwise clocked out
prior to the end of the shift would be discharged.
On September 11, 1980, shortly after commencement
of the shift at 7 a.m., a number of employees smelled am-
monia, left their work stations, and proceeded to the
lunchroom which was free of ammonia fumes. Shortly
thereafter, Supervisor Bury called the employees back to
the production area. Again, the employees smelled am-
monia and again they returned to the lunchroom. Three
employees went outside for fresh air. Supervisor Bury
again called the employees back to work, reporting that
the condition had been corrected. Once again the em-
ployees detected ammonia and, for the third time, left
their stations. Of the approximately 50 employees in the
production area, all remained at the plant, except 11 who
clocked out at approximately 9:18 a.m. All employees
were assured by Plant Manager Schopp that, consistent
with company policy, they could "sit around on their
butts" and be paid for the full shift. He also reminded
them that they would be discharged if they clocked out.
The II employees who did clock out were discharged
for that reason alone. None of the 11 employees thereaf-
ter requested reinstatement; each testified they had in-
tended to report to work the following day.
Based on their testimony at the hearing and at unem-
ployment compensation proceedings, I find that none of
the I 11 had left the plant because of illness, none had re-
quested sick leave,' and none had sought medical atten-
tion thereafter. One other employee, not involved herein,
had requested and been granted sick leave earlier that
morning. The II employees proceeded that afternoon to
'The testimony of some that they sought to take sick leae is nolt cred
iled because it is inconsistent with (a) their testimiony in unemploymen
compensation proceedings and (h) their theory in the case that they en-
gaged in strike activity
file claims for unemployment compensation and com-
plaints with the Occupational Safety and Health Admin-
istration and certain state agencies. Their reason for
clocking out prior to the end of the shift was best stated
by employee rcssie:
[W]e all decided that if re would go in a group.
that something might be done about it instead of
just, you know, leaving by yourself.
At no time, before or after they clocked out. did the em-
ployees present any demands to Respondent concernilng
working conditions.
On July 19, 1979, 14 months prior to the incident
which gave rise to this proceeding, the Occupational
Safety and Health Administration, acting on an employee
complaint of ammonia leaks, conducted an onsite inspec-
tion of the production areas and refrigeration system and
interviewed a number of employees. No environmental
violations were found and it was recommended that Re-
spondent remove employees from affected areas when
vapors were present. Thereafter, such a policy was im-
plemented by Respondent. By letter dated August 10,
1979, the complaining employee was informed by OSHA
that "no alleged violations of Safety and Health Regula-
tions were found as referenced in your complaint of am-
monia leaking from the new freezer."
During the period of September 5-11, 1980, acting on
a late August or early September 1980 complaint of one
of the employees involved in this case, OSHA conducted
another onsite inspection of the production areas and re-
frigeration system.2 Again, the environment was found to
be safe, the ventilation system was found to be adequate.
and, based on the compliance officer's interviews with
management and employees, "the procedure for handling
ammonia leaks and evacuation procedures appeared to be
adequate." No violations were detected and the com-
plaining employee was so notified by OSHA letter dated
September 24, 1980.
Counsel for the General Counsel's theory is straight-
forward: The 11 employees, in protesting working condi-
tions, were engaged in protected concerted activity, de-
spite Respondent's compliance with OSHA standards
and its policy to continue to pay employees who leave
their work areas because of a belief that conditions are
unhealthy, and, as economic strikers,3 they may be re-
placed but not discharged. In support thereof, she relies
principally on N.L.R.B. v. Washington .41uminurn Co.,
370 U.S. 9 (1962).
For the reasons set forth herein, I conclude that the
activity, althougl. clearly concerted, was unprotected
under Section 7 of the Act.
:Three other conditiolns a'lso alleged h the employee to h ua;lf
and unhalth! -smoke fromn fr! liles. fault5 electrical equipment a;nd
wiring, and cloigged tiletl ere s Inspected and no \xi,l.tion, \5cre
fi'~tlnd
Il l ec Bror,,w & R,a;i. I,, N 1. R B. 24h NI R I1) ( 1'q ), enlltd
634 t:2d 81H (511 Cir 19S). lerc the 1toald, under comp;ir.hlc fact.
I;lllud thai the \work stoppage dlid noi ialr uni to a strike hul ril ther ;as ;i
protreced conceried actis! that did not animllolllt T . general sTork reftil-
al In alx 'esert, for purpr.es of ti ca:. it, ulilnecess'ary to decide iatl-
thing more ;timn %heihc the., actit
5 i.[l prolcced ;il. conlcerld
1 1
DECISIONS OF NATIONAL ILABOR RELATIONS O()ARI)
In Washington Aluminum,n, the Supreme Court recog-
nized the need, under Section 7, to balance the rights of
employees with the employer's right to expect a basic
loyalty in the performance of their assigned work. The
Court said (370 U.S. at 17):
It is of course true that §7 does not protect all
concerted activities .... [T]his Court's more
recent pronouncement . . . denied the protection of
§7 to activities characterized as "indefensible" be-
cause they were there found to show a disloyalty to
the workers' employer which this Court deemed
unnecessary to carry on the workers' legitimate
concerted activities.
This need for accommodation, recently restated in Sul-
lair P.TO., Inc. v. N.L.R.B., 641 F.2d 500, 503 (7th Cir.
1981) ("The National Labor Relations Act is directed
toward recognition of the legitimate rights of both em-
ployer and employees, 29 U.S.C. §141(a). There must be
room in the law for a right of an employer somewhere,
some time, at some stage, to free itself of continuing, un-
productive, internal, and improper harassment."), has
been long recognized by the General Counsel, the
Board, and the courts.
For example, in an advice memorandum in Economy
Tank Line, 99 LRRM 1198 (1978), the Associate General
Counsel stated:
For an activity to be found protected, both the
object and the conduct must be protected. Thus,
where the object is protected, but the conduct is
unprotected, the whole activity is unprotected.
He went on to find the employee's refusal to work, in
violation of a no-strike agreement and in the absence of
an abnormally dangerous condition, to be unprotected.
Similarly, for example, the Board, in Serv-Air. Inc., 162
NLRB 1369 (1967), considered questions of whether the
activity was "inappropriate" and whether there were
"overriding business considerations" in its determination
of whether the activity was protected; and, in Mal Land-
fill Corporation, 210 NLRB 167 (1974), it held unprotect-
ed the closing of gates by employees for purposes of
forcing the employer to talk with them concerning safety
conditions.
And the courts of appeals, for example, in Shelley &
Anderson Furniture Mfg., Co. v. N.L.R.B., 497 F.2d 1200
(9th Cir. 1974), considered the impact of the employee
activity on the operation of the business, and, in Dobbs
Hlouses. Inc. v. N.L.R.B., 325 F.2d 53 (5th Cir. 1963),
held that the mass departure of waitresses during the
dinner hour was not a reasonable method of protesting
the firing of a supervisor.4
Remaining, then, is a consideration of the circum-
stances of this case against the backdrop of Washington
Aluminum and its progeny.
The 11 employees had no objective reason to fear that
performance of their assigned tasks might result in per-
'See also Elplorum Cpwell Co. v. Wetern .ddtion Cmmult,,ul Orgau-
nIzali(wn, 42() U.S. 51) (1975) (concerted activity by a mirlonl of repre-
sented employees to protest employment conditions is unprotected under
the Act).
sonal harm. A safe workplace is not the equivalent of a
risk-free one. To be unsafe, it must threaten employees
with a significant risk of harm. Industrial Union Depart-
ment. AFL-CIO v. American Petroleum Institute, et al.,
100 S.Ct. 2844 (1980). Ammonia leaks were quite infre-
quent and, while employees suffered discomfort, there is
no evidence of actual illness and no evidence of any
harmful effects of ammonia fumes. The refrigeration
system and Respondent's evacuation plan met all OSHA
standards and employees were so advised in 1979 and
again in September 1980. Significant is the fact that they
were not compelled to remain in the vicinity of the
fumes; their immediate assignments at the time of their
untimely departure were to stand by in the lunchroom or
outside the plant to await repair of the equipment. There
was, in fact, no risk of harm whatever to any production
employee.
Moreover, the employees, as they had a right to do,
already had initiated, under the Occupational Safety and
Health Act, a complaint process which would lead to a
Department of Labor compliance inspection. Previously,
in 1979, an employee complaint of ammonia leaks result-
ed in an onsite inspection and a written opinion to the
employee that no violations were detected. A second
complaint, initiated only days prior to September 11, had
rapidly brought to the plant another OSHA compliance
officer and that inspection was in process on the very
day that the 11 employees clocked out in order "that
something might be done about [the ammonia fumes]."
Unlike the seven employees in Washington Aluminum
who were otherwise unrepresented and left to protect
themselves from unsafe and unhealthy working condi-
tions, these employees had sought and were receiving
protection through the enforcement powers of the De-
partment of Labor. Inexplicably, even though no immi-
nent environmental hazards then existed, they chose to
take matters into their own hands without awaiting the
orderly process of a compliance inspection.
Finally, at no time before or after their "strike" did the
employees present a demand to Respondent. To be pro-
tected, a concerted protest of working conditions under
Section 7 of the Act necessarily must be accompanied by
a demand made upon the employer before, after, or at
the time of the activity. Washington Aluminum, supra.
The reason is obvious: Section 7 protects the assertion of
legitimate employee rights capable of being remedied by
an employer. Without such a demand, the activity of the
employees here-a refusal to provide any services-is
tantamount to a voluntary quit. It is difficult to perceive
what the 11 striking employees hoped to accomplish
here. They were ot compelled to expose themselves to
noxious fumes. They were not deprived of their wages,
but rather were paid for remaining available at the plant
on standby. They were not exposed to working condi-
tions which failed to meet national health and safety
standards. They offered no evidence that the production
areas could have been made vapor free. And they gave
no clue as to what action might have been taken by Re-
spondent to avoid this or any future work stoppage.
Taken singly or together, the circumstances compel
the conclusion that the actions of the I I employees in
1312
TAMARA FOODS. INC.
clocking out before the end of the shift on September 11,
1980, were indefensible and thus unprotected in that they
demonstrated a gross disloyalty to their employer and
were unnecessary for the protection of their legitimate
concern for a safe and healthy workplace.
[Recommended Order for dismissal omitted from pub-
lication.]
1313