Waco, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 746 (N.L.R.B. 1984)

746 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD
Waco, Inc. and United Steelworkers - of America,
AFL-CIO-CLC and David L. White. Cases 5-
CA-12951 and 5-CA-3122 --
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 21 December 1981 and 20 December 1982
Administrative Law Judge William A. Gershuny
issued the attached decision and supplemental deci-
sion, respectively. The General Counsel filed ex-
ceptions and supporting briefs to both the decision
and the supplemental decision, and the Respondent
filed briefs in opposition to the General Counsel's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. •
The Board has considered the decision and sup-
plemental decision and the record in light of the
exceptions and briefs and has decided to affirm - the
judge's rulings, findings,' and conclusions and to
adopt the recommended Order.
The judge dismissed the General Counsel's com-
plaint in its entirety. While we affirm certain of
those dismissals, we reverse others and, in one in-
stance, we affirm the dismissal on grounds different
from those set out by the judge.
1.- The judge found, and we agree, that the Re-
spondent lawfully discharged employee Dàvid
White when he returned from an extended absence
and failed to provide the doctor's excuse required
by the Respondent's rules. We also agree that the
Respondent did not violate the Act when it earlier
photographed White wearing a large cardboard
prounion sign on his person while working at -his
machine, since the dangerous nature of White's
conduct rendered it unprotected and the Respond-
ent was entitled to document the event. Additional-
ly, we agree, based on the judge's credibility reso-
lutions, that the Respondent did not promulgate an
unlawful no-solicitation/no-distribution rule, or
-threaten employees with discharge for participating
in union activities.
2. The judge further found that the Respondent
did not violate Section 8(a)(1) of the Act when it
discharged nine employees who refused to begin
1 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law Judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
work on the morning of 9 January 19813 For the
reasons set forth below, we agree that this conduct
of the Respondent was lawful.
As more fully set forth by the judge, the nine
employees in question arrived at work shortly
before 7 a.m. on 9 January and found that certain
other employees (not involved in this proceeding)
had either been discharged or had quit under pur-
portedly unjust circumstances. The nine employees
gathered in the lunchroom and demanded that
Faris, the manager of the fabrication department in
which they worked, meet there with them as a
group. The employees never stated a specific griev-
ance or formulated any demands other than to
have Faris meet with them in the lunchroom.
As the judge found, although the Respondent
was aware that the employees' concerns were
probably work-related, Fans refused their demand
for a mass meeting in the lunchroom. Fans came to
the lunchroom about 7:45 a.m. and told the em-
ployees that he would meet with any of them indi-
vidually in his office but would not participate in a
mass meeting. None of the protesters agreed to this
agreement. Instead, they remained in the lunch-
room until they were presented with their pay-
checks and were discharged between 10:30 and 11
a.m. when they refused to work or leave the prem-
ises.
In dismissing the allegation that the discharge of
these employees violated the Act, we note that, al-
though employees who are unrepresented and are
working without an established grievance proce-
dure have a right , to engage in spontaneous con-
certed protests concerning -their working condi-
tions, the precise contours within which such activ-
ity is protected cannot be defined by hard-and-fast
rules. Instead, each case requires that many rele-
vant factors be weighed. In the instant Case, the
employees remained in the lunchroom for a period
of at least 3-1/2 hours, most of which came after
Faris had told them that he would not meet with
them as a group and that they must choose either
to get up and go back to work, in which case he
would meet with them individually, or to punch
out and leave the premises. In our view, by the
time these employees were discharged, late in the
morning, they had overstepped the boundary of a
protected, spontaneous work stoppage, and were
occupying the facility in a manner which was un-
protected. The Respondent's decision to terminate
them was not made precipitously, and the employ-
ees had had ample time to consider the Respond-
ent's demand that they choose between working
and carrying on their protest , off the Respondent's
2 All dates herein are in 1981 unless otherwise noted
273 NLRB No. 101
WACO, INC 747
premises. The employees gave no -indication that
they intended to accept either alternative, and, in
fact, the employees' testimony indicates' that they
had no plan to give up their occupation of the Re-
spondent's lunchroom. Neither did they communi-
cate to the' Respondent the particulars of their
grievances so as to facilitate a discussion or-'possi-
ble resolution of their concerns. In these circum-
stances, we find that the discharge_ 'of these 'nine
employees was not unlawful. 3 - -
3. Five days' after the lunchroom protest,- picket-
ing at or near the entrance to the Respondent's
premises commenced. Between' 14 and 16 January,
picketers carried signs listing a litany of grievances
against the Respondent. The :picketers consisted of
five of the lunchroom protesters and two former
einployeeS previously terminated for 'reasons un-
known. On the second day of the picketing, Fabri-
cation Department Manager Fans took an un-
known number of photographs , of .the picketers.
The Respondent's asserted justificatiOn for the pho-
tographing is that it wanted "to find out what was
on the signs and take pictures of them."
The Respondent does not contend that these
pickets either engaged in, or gave the appearance
that they might engage in, any form of picket line
misconduct, or that their presence interfered with
ingress . or egress at the plant entrance or that they
caused any traffic disturbance. Yet, besides photo-
graphing, the Respondent had police observe the
picketing. The pickets were never asked to move,
although Fans asked them if they. were represent-
ed, and, if so, by whom.
The complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the Act when Fans photo-
graphed this picketing activity. The judge dis-
missed the allegation on the grounds that the Re-
spondent's conduct was "noncoercive, nonthreaten-
ing, and unaccompanied by other unlawful activi-
ty" on the Respondent's part. The judge offered no
explanations why this conduct was "noncoercive
2 Cases relied on by the General Counsel are distinguishable In GF
Business Equipment, 215 NLRB 872,(i974), enfd 529 F 2d 201 (8th Cir
1975), the employees, during their' first work stoppage, made known to
the company, prior to stopping work, the specific complaints which gave
nse to their protest While the company gave the employees the choice
of returning to work or punching out, they were also told,that, if they
punched out, they might be subject to discipline We note the' work stop-
page there lasted no more than 1 hour During the second work stop-
page, the employees were again told to work or punch out but, if they
punched out, they were again told they might be subject to discipline
Also, the second stoppage lasted only 15 minutes before a number of em-
ployees were discharged In Pepsi-Cola Bottling Co of Miami,' 186 _NLRB
477 (1970), enfd 449 F 2d 81 ,4 (5th Or 1971), cert denied 407 US 910
(1972), there was no showing, as here, that the employer agreed to meet
with the employees, and the employees were discharged only shortly
after their work stoppage began
Member Hunter does not agree with the rationale of these cases and
accordingly finds it unnecessary to distinguish them here
and nonthreatening." We disagree with his dismis-
'sal of this allegation.
It has long been held that "[i]n the' absence of
proper justification, the photographing' of pickets
violates the Act because it has a tendency to in-
- timidate." 4 Photographing lawful, peaceful picket-
ing tends to implant fear of future reprisals.5
In the particular circumstances of this case, we
are convinced that the Respondent's conduCt rea-
sonably- tended to restrain the employees from en-
gaging in what was undisputedly protected con-
certed activity. The Respondent had no reasonable
-basis for anticipating picket line 'rniseonduct, since,
both On the day of the lunchroom' protesters' dis-
charge and at all times during this picketing, the
employees were orderly and peaceful. Such photo-
graphing by their former supervisor reasonably
' tended to coerce and restrain the picketers" by "cre-
ating a fear among them that the record of their
concerted activities might be used for some future
reprisals," e.g., a refusal to consider them for
rehire or a possible "blackball" of them with other
employers. Unlike the situation in U.S. Stee1, 7 the
picketers did not seek their own media coverage
nor did the Respondent have a history of photo-
graphing picketing unaccompanied by employee re-
prisals. Photographing the picketing employees
could reasonably tend to coerce them not to take
further protected concerted action to voice their
grievances concerning events at the Respondent's
•plant. Accordingly, we find that, by photographing
' the picketers, 8 the Respondent violated Section
8(a)(1) of the Act.
4. The complaint also alleges that the Respond-
ent ' violated Section 8(a)(1) by admonishing em-
ployees not to discuss their wages among them-
' selves. The . judge noted that it was undisputed that
Fans and other supervisors engaged in such con-
duct, but he found, on the basis of his credibility
-resolutions, 'that the , Respondent had made no
threats to discharge or discipline employees for
Kallmann v NLRB, 640 F 2d 1094 '(9th Cir 1981) See also Flambeau
. Plastics Corp, 167 NLRB 735 (1967), enfd 401 F 2d 128 (7th Cir 1968)
5 See NLRB v Colonial Haven Nursing Home, 542 F 2d 691 (7th Cm
1976), Captain Nemo's, 258 NLRB 537 (1981), Cutting, Inc , 255 NLRB
534 (1981)
• , 6 NLRB v Colonial Haven Nursing Home, supra
7 US Steel Corp v NLRB, 682 F 2d 98 (6th Cir 1982)
8 The fact that' these employees were no longer employed by the Re-
spondent does not stnp them of their Sec 7 rights It is well settled that
employees are not protected merely for activity within the scope of their
- employment relationship, but may engage in other activities for mutual
- aid or protection Eastex, Inc v NLRB, 437 U S _556 (1978) The Act
provides in Sec 2(3) that "The term 'employee' shall Include any em-
ployee, and shall Include any individual whose work has ceased as a con-
sequence of, or in connection with, any current labor dispute
Thus, we have held that a discharged employee remains a statutory em-
ployee entitled to the full protection of the Act Little Rock Crate &
Basket Co, 227 NLRB 1406 (1977), and cases cited therein
748 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
violating this instruction. The judge particularly
noted that no employee testified that this instruc-
tion inhibited him from engaging in protected ac-
tivity. The judge concluded, without discussion of
precedent, that the instruction was lawful. We dis-
agree.
In some circumstances, it may be lawful for an
employer to bar its employees from discussing cer-
tain information concerning wages. For example, in
International Business Machines Corp. (IBM), 265
NLRB 638 (1982), we held that, although employ-
ee rights were adversely affected by the company's
policy prohibiting . employees from distributing
wage data, which it had compiled and classified as
confidential, that policy was not unlawful. , The
issue was whether the Company had substantial
and legitimate business interests which supported
its policy and which outweighed the employees' in-
terests in making use of the data compiled by the
company. In that case, we noted that employees
were not precluded by the company from discuss-
ing their own wages with each other, but only from
having access to or distributing the information
which the company had compiled for its own inter-
. nal use. We concluded that the company's business
justification outweighed the employees' interest in
having free access to the disputed wage data.
In the instant case, however, unlike IBM, supra,
the Respondent forbade its employees . to discuss
their own wages among themselves. Further, it did
so without establishing a- substantial and legitimate
business justification for its policy; indeed, the Re-
spondent offers no argument whatsoever that justi-
. fication exists, relying instead, as did the judge, on
the lack of showing that any employee felt inhibit-
ed by the Respondent's rule.
In assessing the lawfulness of the Respondent's
rule, we are not concerned with the subjective
impact of the rule on particular employees. 9 In-
stead, we must determine whether the rule reason-
ably tended to coerce employees in the exercise -of
their Section 7 rights, and, if so, whether the em-
ployees' Section 7 rights are outweighed by any le-
gitimate and substantial business justification for
the rule.'°
There can be little question that the Respond-
ent's rule prohibiting employees from discussing
their wages constitutes a clear restraint on employ-
ees' - Section 7 right to engage in concerted activi-
ties for mutual aid and protection concerning an
undeniably significant term of employment. il Since
-J
9 Daniel Construction Go, 264 NLRB 569 (1982)
1 ° IBM, supra
11 Jeannette Corp. 217 NLRB 653 (1975), enfd , 532 F 2d 916 (3d Cir
1976), Mona Industries, 245 NLRB 1258 (1979)
the Respondent has failed to establish any business
justification for this restraint, it follows that its rule
is unlawful.
5. In his supplemental decision, the judge found
that the Respondent had not violated Section
8(a)(1) of the Act when Faris required that em-
ployee .White remove a union sign he had posted
on the wall outside the plant lunchroom. The sign
invited employees to talk with White if they were
interested in forming a union. The judge found that
the Respondent had permitted other ,employee no-
tices to be posted on the wall,. and that the Re-
spondent's treatment of White's , posting was dispar-
, ate. The judge further found, however, that, under
all the circumstances at this faCility, "including the
fact that '700 of its, 750 employees are organized";
the fact that the incident' was isolated and not com-
municated to or known by other employees; and
that the Respondent's action was free of union
animus, the Respondent's conduct constitutes a de
minimis violation and need not be remedied by -the
posting of a Board notice. Again, we disagree.
Initially, we 'note that, contrary ,to the judge, the
Respondent employs only about 50 employees at
this facility and that they are not organized: The
Respondent' does have approximately 700 employ-
ees Who are represented-by a union, but those em-
ployees 'Work at other jobsites, not at the fabrica-
tion plant involved here. As the Respondent itself
states in its brief, "Wacb's employees who work at
the Newport News facility are not members of any
bargaining unit." -
Secondly, the legal standard applied by the
judge in dismissing this allegation was eribneous.
Union- animus is an element in 8(a)(3) case, but
generally is -not an element in 8(a)(1) cases. "It is
too well, settled to brook dispute -that the test of in-
terference, restraint, and- coercion under Section
8(a)(1) of the Act does not depend on an employ-
er's motive nor on the successful effect of the coer-
cion.' -Rather, the illegality of an employer's con-
duct is determined by whether the conduct may
reasonably be said to have a tendency to interfere
with the free exercise of employee rights under the
Act." 12 Accordingly, the absence of union animus
on the part of the Respondent, assuming this to be
shown by the record, would be irrelevant to the
issue of whether the Respondent violated Section
8(a)(1), and it was error for- the judge to. rely on
this factor.
Finally, we do not agree with the judge's finding
that the incident was so isolated as to vitiate the
need for a Board notice. As noted above, the plant
employed far fewer employees than the judge
" Daniel Construction Go, supra
WACO, INC 749
found. Further, the sign which White was told to
remove invited employees to begin discussions con-
cerning the possibility of forming a union. Its re-
moval had the effect of interfering not only with
White, but also.with other employees in the depart-
ment whom White was lawfully attempting to
reach with his message. Moreover, we have found
that the Respondent violated Section 8(a)(1) in at
least two other respects, and, in all these circum-
stances, we reject the judge's characterization of
this misconduct as "isolated." 13 Accordingly, we
shall order that this unfair labor practice be reme-
died by the posting of an appropriate notice.14
THE REMEDY
Having found that the Respondent unlawfully
interfered with, restrained, and coerced its employ-
ees in the exercise of their Section 7 rights, we
shall order it to cease and desist therefrom, and to
post an appropriate notice.
CONCLUSIONS OF LAW
L Waco, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO-
CLC is a labor organization within the meaning of
Section. 2(5) of the Act.
3. By photographing employees as they lawfully
and peacefully picketed outside the Respondent's
Newport News, Virginia facility; by requiring the
removal of an employee's poster relating to the for-
mation of a union from the wall outside the lunch-
room at the facility, contrary to its past practice of
permitting employees to post material at the loca-
tion; and by telling employees that they were not
to discuss their wages with each other, the Re-
spondent has interfered with, restrained, and co-
erced employees in the exercise of their Section 7
rights and has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
13 In his initial decision the judge found this issue was also untimely
raised We disagree While the General Counsel did not raise the Issue as
a separate violation until his posthearing brief, it was clearly raised as an
element of White's alleged unlawful discharge, it was fully litigated, and
it sufficiently relates to other timely raised allegations under consider-
ation It could thus be considered by the judge
14 In his discussion of this Issue, as elsewhere, the judge improperly
relied on courts of appeals decisions' instead of initially considering rele-
vant Board decisions on the issues presented And, on one issue, the
judge relied on the dissent ,of a single Board member rather than on the
Board majority in that decision We emphasize that It is a judge's duty to
apply established Board precedent which the Supreme Court has not re-
versed Iowa Beef Packers, 144 NLRB 615, 616 (1963) It is for the Board,
not the judge, to determine whether that precedent should be varied
ORDER
The National Labor Relations Board orders that
the Respondent, Waco, Inc., Newport News, Vir-
ginia, its officers, agents, successors, 'and assigns,
shall
1. Cease and desist from
(a) Engaging in surveillance by photographing
employees as they lawfully_ and peacefully picket
outside the Respondent's facility.
(b) Telling employees not to discuss their wages
with one another.
(c) Requiring employees to remove posters relat-
ing to the formation of a union or other protected
concerted activity from areas in which employees
are permitted to post other types of notices.
(d) In any like or related manner interfereing
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post , at its facility in Newport News, Virgin-
ia, copies Of the attached notice marked "Appen-
dix." 15 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted ,by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
'where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the' Regional Director in writing
Within 20 days from the date of this Order what
steps the' Respondent has taken to comply.
MEMBER DENNIS, concurring in result.
I agree that the Respondent lawfully discharged
the nine employees who engaged in the lunchroom
sit-in, but I do not rely on my colleagues' rationale.
The judge found that the employees in question
gathered in the plant lunchroom instead of report-
ing to their work stations and demanded that Fab-
rication Department Manager Faris meet with
them. Faris declined to meet with the group and,
most significantly, gave the employees the option
of returning to work or clocking out and leaving
the premises. The employees chose neither alterna-
tive and continued to occupy the lunchroom until
they were discharged.
15 If this Order is enforced by a Judgment of a United States Court' of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
750

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although this case lacks the violence that
marked the . sitdown strike in NLRB v. Fansteel
Metallurgical Corp., 306 U.S. 240 (1939), the princi-
ple the Supreme Court established in Fansteel is
equally applicable here: the Act does not protect
'employee refusals to yield possession of an employ-
er's property. Once the employees were informed
that they must work_ or leave the premises, they
could no longer continue their lunchroom sit-in
with immunity from employer discipline. On this
basis, I concur in the dismissal of the complaint al-
legation that the nine employees were unlawfully
discharged.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the. National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT 'engage in surveillance of employ-
ees by photographing them as they lawfully and
peacefully picket outside our plant.
WE WILL NOT tell employees that they cannot
discuss their wages with each other.
WE WILL NOT require employees to reniove
signs or posters concerning the formation of a
union from he wall . outside the lunchroom or any
other area where employees are permitted to post
notices.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the-Act.
WACO, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge.
A hearing was held on October 19-20, 1981, in Newport
_News, Virginia, on 'complaints issued. March ,23 and
April 27, 1981, alleging violations of Section 8(a)(1) and
(3) of the Act.
At issue principally is whether Respondent unlawfully
discharged nine employees on January 9 and one em-
ployee on March 17, 1981.
On the entire record, including my observation of the
witness' demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS,OF LAW
I. JURISDICTION
The complaint alleges, the answer admits, and I find
that Respondent, engaged in the- manufacture of insula-
tion materials with annual shipments of goods interstate
in excess of $50,000, is an employer engaged in com-
merce within the meaning of the Act.'
II. LABOR ORGANIZATION INVOLVED
The United Steelworkers of America, which through
its Local Union 15051 represents 700 of Respondent's
employees some of whom are assigned to Respondent's
Newport News facility, but which represents none of the
employees involved in these cases, is a labor organization
within the meaning of Section 2(5) of the Act.
III UNFAIR LABOR PRACTICES
A The January 9, 1981 Discharge of Nine Employees
Respondent is engaged in the manufacture and installa-
tion of insulation materials. Its 700 employees, some of
whom are assigned to Respondent's Newport News facil-
ity, are represented by the United Steelworkers It em-
ploys approximately 50 unrepresented production and
clerical , employees at its Newport News facility. In-
volved in this case are nine of the 12-14 employees of
the fabrication department at that plant.
At the time, the plant was engaged in the production
of material for the 'Government under a contract which
had a penalty clause for late delivery Interruption Of
fabrication would affect the operation of the rest of the
plant.
On January 9, 1981, between 10:30 and 11 a.m., nine
fabrication department employees were discharged for
refusing to work or leave the plant. The events preced-
ing the discharges are brief, occurring between 7 and 11
a.m , and essentially are not in dispute.
When several of the employees reported to work that
morning for the 7 a.m shift, they became aware that one
coemployee had been discharged for failure to have a
medical slip and two others apparently had quit. There is
no allegation or contention in this case that these termi-
nations were violative of the Act. More than nine fabri-
cation department employees gathered in the plant
lunchroom to discuss their dissatisfaction with manage-
ment Some of the employees were called away from
their work stations by others who went directly to the
lunchroom after clocking in. The credible evidence is
that all fabrication department employees were to report
to their last work station at the beginning of each shift to
await any new assignment by their supervisor. They
were not to await the assignment in the lunchroom, as
testified to b9 one or two of the employees.
The employees told Dimowski, their immediate super-
visor, they wanted to meet -with Fans, manager of the
fabrication department. At 7 . 10 a.m., Fans was informed
at home of the sit-in, came immediately to the -plant,
looked into the lunchroom, and, went to his office. About
7:45 a.m., when Fans returned to the lunchroom the em-
ployees told him they wanted to meet with him in "our
WACO, INC 751
office," the lunchroom. He declined to meet with the
group, but, according to his testimony which I credit, of-
fered to meet with them in his office one-on-one or, with
one or more spokespersons "to discuss wifitever prob-
lems that they might have" (Tr. 261), adding that "they
had a choice of to get up and go to work or punch out
and go home, leave the premises. And, if they went back
to work, that my door was "open and I would be happy
to meet with them one-on-one" .(Tr. 260, 299-300). I
find, based on my observation of the witnesses, the
manner in which their testimony was given, and their
words used and my reading of the transcript, that at all
times the employees were aware they were being given
the option of returning to work with an opportunity then
to meet with Fans or clocking out and leaving the plant.
Faris then returned to his office and shortly thereafter
one or two of the employees approached him again with
a request for a meeting with the group in the lunchroom,
but were told that his earlier offer stood.
Nine of the employees continued to occupy the lunch-
room, their intent was best described by one of their
spokespersons, Peggy King. "We were just going to sit
there and thought Mr. Faris would change his mind and
come to listen to what we had to say" (Tr. 349). She tes-
tified that, even after the employees had been sitting
there for several hours and Faris continued in his refusal
to meet with them en masse in the lunchroom, they gave
no thought to what they would do next.
At approximately 10:30 a.m., when Faris and General
Sales Manager Robbins found the employees still occu-
pying the lunchroom, the employees were discharged,
were given their regular payroll checks which had been
received from company headquarters in Richmond for
distribution at the plant later that day, and were told to
leave the premises. They did so peacefully.
After requesting and obtaining the name and address
of the Company president, they drove to Richmond and
met as a group with President Walker at approximately 3
p.m. He inquired whether they' would return to work
with the "right attitude" and, when he received an af-
firmative answer, called the Newport News plant only to
be informed that Fans, who had full authority, had
indeed discharged the employees and already had re-
placed them by transferring employees from other shifts.
Walker immediately arranged for checks to be issued to
the nine employees for the current payroll period and
they left peacefully
The lunchroom is a small room set aside in the plant
for all salaried and hourly employees of the clerical, fab-.-
rication, and warehouse departments. It contains food
vending machines, a'large table, and 12 chairs. Employ-
ees regularly use the room during rest and lunch breaks.
While the fabrication 'department employees occupied
the lunchroom on the morning of January 9, no other
employees attempted to use it.
I credit the testimony of Fans and Robbins that em-
ployees in the lunchroom were sitting on the table, were
laughing, joking, and talking at the same time,' appeared
to be disorganized and without a spokesperson, and
never specifically identified their problem because of
their inability to reach agreement with Fans on ground
rules for a meeting. Admittedly, however, Faris and
Robbins were aware that their concern related generally
to their employment.
Finally, there is no evidence that the employees other-
wise interfered with the Employer's ability to obtain re-
placements or to transfer other employees to operate the
fabrication department machinery. Nor is there evidence
of the existence of a written grievance procedure for fab-
rication ,department employees. No work areas other
than the lunchroom were occupied and no other plant
employees were asked or encouraged to join in the sit-in.
There is, of course, no question whatever that the fab-
rication department employees on the morning of Janu-
ary 9 were engaged in concerted activities within the
meaning of Section 7 of the Act and that Respondent
knew that the employees had a work-related grievance
or grievances. The real issue is whether those activities
were protected.
It is, of course, elemental labor law that a "concerted
work stoppage and walkout by unrepresented employees
for their mutual aid and protection is protected by Sec-
tion 7 of the Act" and that "the employees had a right to
protest the discharge of their fellow employee by appro-
priate means, including a strike." United M & M v.
NLRB, 554 F.2d 1276 (4th Cir. 1977). Similarly, it is fun-
damental Board law, "dissatisfied employees cannot
strike and maintain their pay status at the same time."
Morris, The Developing Labor Law (1971).
, Cone Mills Corp. v. NLRB, 413 F.2d 453 (4th Cir.
1969), is wholly dispositive of the issue here. In Cone, as
here, certain employees were protesting an unrelated dis-
charge of a fellow employee. In Cone, as here, the em-
ployees declined to use the established procedure for
communicating their grievances. That the grievance pro-
cedure in Cone preexisted the work stoppage, while the
one here was announced at the onset of the work stop-
page, has no relevance. In Cone, as .here, the employees
gave no indication whatever when their work stoppage
would terminate or when they would vacate the plant.
Indeed, the employees here had no plans but to continue
with their sit-in. In this respect, the employees main-
tained a defiant, and rebellious attitude, seeking to estab-
lish for themselves the terms and conditions of employ-
ment. And, finally, in Cone, as here, .a number of the pro-
testing employees returned to their machines when re-
quested to do so and were not discharged or otherwise
disciplined for participating in the protest.
On the particular facts of this case, the views of Chair-
man Miller in dissent in Pepsi-Cola Bottling Co., 186
NLRB 477 (1970), are especially applicable: "[U]nder
our Act, an employer is [not] precluded from ordering
employees to leave the plant if they wish to protest
rather than to work and from disciplining employees
who, after warning, refuse to comply."
Accordingly, I conclude that, in discharging the nine
employees of the fabrication department, Respondent did
not violate the Act.
B. The March /Z 1981 Discharge of David White
On March 17, 1981, fabrication department employee
White was terminated for excessive absenteeism. The
General Counsel, contends that the discharge was be-
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of White's efforts to build employee interest in a
union.
Published company policy concerning absenteeism, in
relevant part, requires an employee to call his supervisor
before working hours if "you have a need to be absent
or late for any reason" and to have a "doctor's excuse" if
"out sick for more than 1 full day." Company rules warn
that "excessive absenteeism or tardiness may be reason
for dismissal" and "THE PENALTY FOR BREAKING
ANY OF THE ABOVE RULES CAN BE. IMMEDI-
ATE DISMISSAL OR HAVING A REPRIMAND
SHEET PUT INTO YOUR RECORD. THREE OF
THESE SHEETS COULD BE CAUSE FOR DISMIS-
SAL." (G.C. Exh. 2).
On Tuesday, March 3, 1981, White, with permission of
his supervisor, left work early due to illness. He was
treated at a hospital emergency room on Thursday,
March 5, and received a doctor's slip indicating he could
return to work on Monday, March 9 On that day, how-
ever, he telephoned his supervisor saying that he
"wouldn't be in" (Tr:220); on Tuesday, he again told his
supeivisor he "still wouldn't be in" (Tr. 220); on
Wednesday, March 11, he was treated at the emergency
room and so informed the CompanY; on Thursday,
March 12, he did not feel well and told his supervisor he
was going to consult with his family dOctor; on Friday,
March 13, he called - in to the plant and went to his
family doctor who gave him an appointment ' for
Monday, March 16; . on that day, after calling in to the
plant, he kept his medical appointment, but, according to
his testimony, was refused treatment due to nonpayment
of prior bills; and on Tuesday, March 17, when he re-
ported to work, he was discharged 'by Fabrication De-
partment Manager Faris for "excessive absenteeism." At
this point, there is a conflict in the testimony. White tes-
tified that he told Faris he had doctor's -slips with him
and that Fans said there was no need for them. Faris, on
the 'other hand, testified that White said he had such slips
in his hand, but would not show them. This conflict need
not be resolved, however, for the reason that, admitted-
ly, the only slips White had Were-two: One, dated March
5, with a March 9 return-to-work date; the 'other, dated
March 11, indicating treatment on that date,' but nothing
as to a return-to-work date. White had- no doctor's slip
accounting for his absences from work on Thursday,
March 12; Friday, March 13. ; and Monday, March 16.
Faris testified that White missed more time than he
worked and that White received more than one warning
concerning his attendance. His personnel file, however,
contained no written warnings; but, on the other hand,
there was no evidence to indicate that written warnings
were a part of the Company's regular procedures. White
denied 'receiving any warnings, written or oral. In the
fall of 1980, Faris had discharged White for refusal to
perform an assigned job, bin immediately rescinded the
action when, at his urging, White reconsidered and per-
formed the work. White did not dispute this incident.
In an attempt to show disparate treatment of White,
the General Counsel introduced evidence 'that another
employee, Claud, received only a written warning for
lost time "because of illness." However, this proffer does
not indicate the relevant circumstances or whether Claud
violated the company rule requiring a doctor's excuse for
medical absences. On the other hand, the General Coun-
sel, in connection with the evidence relating to the Janu-
ary 9, 1981 sit-in, offered evidence that another employ-
ee, Crismon,-had been discharged for failure to provide a
doctor's excuse.
On March 3; the day White left early due to illness, he
engaged in activity claimed to be protected concerted
activity. More precisely, he had put up on the wall out-
side the lunchroom one or two hand-printed cardboard
signs requesting coemployees to talk , with him during the
lunchbreak if they were -interested in joining a union.
There is a conflict in the testimony as to the number of
signs that White had posted. White's account of two is
not borne out by the photograph (G.C. Exh. 7) which
shows only one. However, it is not important, for pur-
poses of this case, to resolve-that conflict. Later, during
a meeting with Fans, which White requested to discuss a
pay raise, Faris asked whether he or White was going to
remove the sign from the wall. White stated that he
would do so and, 'thereafter, the sign was removed and
kept near White's work station. After lunch, White taped
the sign to his chest. About 3-p m., Robbins and Fans
photographed White and the sign and ordered him to
remove it from his person. Faris took the sign and left.
--White's activities were undertaken entirely on his own.
He had not contacted any particular union and there is
no evidence whatever that he consulted with any other
employee concerning the posting of his sign or that he
dismissed a union with any employee either before or
after the ' sign was posted. Respondent took no discipli-
nary action against White expressly based on the posting
or wearing of the sign.
Other material, unrelated in subject matter, was put up
on the same wall by other employees: A picture of a
frog, by a supervisor; a notice of a lost wallet; and fare-
well notes to outgoing . employeei. There were no com-
pany rules -proscribing the posting of notices on the wall
and such postings did not interfere with the operation of
the plant. The evidence clearly indicates, and I find, that
White's wearing of a cardboard sign on his chest while at
his work station, interfered with the performance of his
work and constituted a clear safety hazard. As the pho-
tograph indicates (G.C. Exh. -7), the cardboard sign is a
rigid one, extending from midchest to groin. White's job
entails bending to unpack cartons of material and feeding
the material into moving equipment where it is consoli-
dated and heat-treated. Had the cardboard sign become
entangled in the machine, iiersonal injury and property
damage could have resulted. Company rules require em-
ployees on this operatien to wear fitted Clothing and the
photograph indicates White was wearing a long-sleeved
shirt with sleeves pushed up to his elbows.
Assuming without deciding that White's activities on
March 3 constituted concerted activity within the mean-
ing of Section 7 of the Act, I nevertheless conclude that
such activities were not to any degree • a motivating
factor in the. March 17 decision to discharge White. I
conclude that the sole and exclusive reason for the dis-
charge was White's' admitted violation of the company
rule concerning absenteeism.
•WACO; ,INC- - 753
A number of factors compel this conclusion. First,
White was discharged immediately upon his return from
, an extended absence with no medical excuse. Second, al-
though the Employer had ample time to do so during the
period of March 3 to 17, it made no effort to discharge
or otherwise discipline White as a result of the incident
of March 3. Third, there is absolutely no evidence of any
disparate treatment of employees. And, finally, there is
absolutely no evidence of any _antiunion sentiment on,the
part of, the Employer. Indeed, , as already pointed out,
this Employer has a long bargaining history with a union
which represents more than 93 percent of its employees.
- Accordingly, I conclude that the March ,17, 1981 dis-
charge of David White did not violate the Act.
C. Photographing Pickets
, On January 14 through 16, 1981, 5 days after , they
were discharged, some of the nine discharged employees
picketed at or near the entrance to the Newport News
plant. They were joined by at least twO nonemployees.
The evidence as to this alleged violation is undisputed.
.. The picketing was peaceful at all times and the pickets
carried signs relating generally to employment griev-
ances. Fabrication Department Manager Faris spoke
with the pickets, asking them if they were represented
and, if so, by whom. He also called the police, Which
thereafter observed the pickets, but did not interfere with
their activities. On one occasion, Fans photdgraphed the
pickets. At no time were the pickets asked to move. Nor
were they threatened, arrested, or otherwise interfered
with. After 3 days, the pickets Ceased their activities of
their own accord.
The photographing of pickets by an employer does not
constitute a per se violation of the Act. Where, as here,
the photographing was noncoercive, nonthreatening, and
unaccompanied by other unlawful activity on the part of
the Employer, no violation is established.
In this respect, it is significant that the complaint does
not allege and the General Counsel does not contend
that Fans' questioning of the pickets or his calling for
the presence of police is violative of the Act. The only
assumption to be drawn is that such conduct, like that of
photographing, was noncoercive under the circum-
stances.
D. Warnings not to Discuss Wages
The complaint alleges and the undisputed evidence es-
tablishes that, on a number of occasions in the fall of
1980, long before the January 9, 1981 discharge of the
nine employees and the March 17, 1981 discharge of
White, Fabrication Department Manager Fans and other
supervisors told employees not to discuss their individual
wages with one another. The reason for the instruction:
The earnings of each fabrication department employee
were different, due to differences in seniority and the
Company's policy of considering pay raises on an indi-
vidual basis. I find that Respondent made no threats to
discharge or otherwise discipline employees for a viola-
tion of this instruction and, in this connection, I cannot
credit King's testimony to the contrary, as it is unreliable
and unsupported by the testimony , of any other employee
who gave testimony on this subject.
Under the circumstances here, such instructions are
not violative of the Act. No employee testified that the
instruction inhibited them in the exercise of protected ac-
tivity. Indeed, they had no such inhibitions on January 9,
1981, when they engaged . in a sit-in at the plant. Apart
from the instructions, the record is free of any antiunion
sentiment on the part 'of the employer, as noted above.
E. Postheanng Motion to Amend
In a footnote to his posthearing brief filed more than 4
weeks after the close of the record in this case, the Gen-
eral Counsel seeks to amend the complaint to allege a
violation of Section 8(a)(1) of the Act based on Respond-
ent's admitted instruction to David White to remove a
sign he posted on the wall outside the lunchroom and
further seeks that a violation be found by me. Admitted-
ly, the complaint alleges no such violation, despite the
General Counsel's full knowledge of the facts at all rele-
vant times.
Neither I nor Respondent was aware that the General
Counsel offered evidence relating to the sign in support
of an independent violation of the Act. On the contrary,
it was obvious that the evidence was offered to establish
the "real" 'motive, for White's discharge. Of course, Re-
spondent did not brief the issue of an independent viola-
tion. Under the circumstances of this case, where there is
a total absence of antiunion sentiment on the part of the
Employer and where the violation, if found, would be a
technical, isolated one at best, the requests will be
denied.
F. Photographing White with Sign
The General Counsel contends that the photographing
of White while wearing the rigid, cardboard sign on his
chest while at his work station constituted a violation of
Section 8(a)(1) of the Act, likening this case, remarkably,
to one involving the wearing of a union insignia. Bearing
in mind always that the protection of concerted activities
in the workplace enjoys equal—but not paramount—
status with the goals of industrial safety, this allegation
must be dismissed for the reason that White's taping a
cardboard sign to his chest, under the circumstances,
constituted a clear hazard both to his personal safety and
to the Respondent's equipment.
[Recommended Order for dismissal omitted from pub-
lication.]
ORDER
IT IS ORDERED that the complaint be dismissed.
SUPPLEMENTAL DECISION
WILLIAM A. GERSHUNY, Administrative Law Judge
By Order of December 3, 1982, the Board directed that
the findings set forth in my decision of December 21,
1981, be supplemented in the two following respects.
1. Paragraph 4(b) of the complaint in Case 5-CA-13122:
The relevant credible facts surrounding these allegations
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are set forth at pages 6 (LL. 30,' et seq.) and 7 (LL. 1-10)
and will not be repeated here.
Throughout, in my decision of December 21, 1981,
and here, I _have credited the testimony of Faris over
that of the employees. Based on my observations of the
demeanor of all the witnesses during the course of this 2-
day hearing, as reflected in trial notes contemporaneous-
ly made, I was of the opinion that Fans, whose testimo-
ny was clear and convincing, reported the events most
accurately. On the other hand, White and other employ-
ees left with me the clear impression that their recall of
events was, to a large extent, tailored to meet the litiga-
tion. I was neither impressed with their testimony, nor
convinced that it portrayed_ the events accurately. Thus,
I am unable to find that Fans said anything niore of sub-
stance than "who would take down the signs, you or
me." More specifically, I find that there was no discus-
sion between Faris and White concerning the distribution
of literature, the conduct of meetings or discussions with
other employees during lunch break. Moreover, I find
that there was no threat of discharge or discipline. That
leaves only the Faris request that White remove the
signs from the wall, while permitting, on a limited
number of occasions, other employee notices of a person-
al or humorous nature. Board precedent is clear that
such disparate treatment is violative of the -Act. Midwest
Stock Exchange, 244 NLRB 1108, 1116 (1979); Stanley
Furniture Co., 244 NLRB 589 (1979).
• However, considering the circumstances at this plant
as a whole, including the fact that 700 of its 750 employ-
ees are organized—and even taking into account dissimi-
lar violations which occurred 6 years earlier on another
unrelated jobsite, NLRB v. Waco Insulation, 567 F.2d 596
(4th . Cir. '1977)-1 find the March 3 incident relating to
the posting of the signs to be an isolated and minimal
one, not communicated to, or known by, other plant em-
ployees and free of union animus. In my opinion, effec-
tuation of the purposes of the Act, under the circum-
stances here, does not require the posting of a notice. Cf.
NLRB v. Brooks Cameras, 691 F.2d 912 (9th Cir. 1982).
2. The conflicting testimony of Faris and White concern-
ing medical excuses: The relevant credible facts are set
forth on page 6 (LL. 1-5), but the conflict was not re-
solved there.
For reasons set forth in paragraph 1, above, I credit
the testimony of Fans that ,White refused to show him
the medical slips which White said he had in his hand.
There is yet "another reason why I am compelled to
reject his testimony in this regard: it is highly unlikely
that White would have produced the excuses since he
knew (a) they did not in fact account for his absences on
the 3 workdays immediately preceding his return to
work and (b) he was in violation-of the Respondent's ab-
sentee policy and subject to immediate discharge there--
under.'
As indicated in' the Board's Order of December 3, 1982, Sec 102 46
of the Board's Rules and Regulationsshall be applicable following serv-
ice of this Supplemental Decision