Audio Systems, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1979

239 N.L.R.B. 1316 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Audio Systems, Inc. and International Union of Elec-
trical, Radio and Machine Workers and its Local
741, AFL-CIO-CLC. Case 9 CA-12086
January 15, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBtR S JENKINS
AND MURPHY
On September 25, 1978, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
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 has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Audio Systems, Inc.,
Louisville, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENF OF IHE CASE
ROBERT A. GIANNASI. Administrative Law Judge: This
case was heard by me on July 10 and 11, 1978, in Louis-
ville, Kentucky. The complaint, which issued on February
17, 1978, alleges that on January 3, 1978, Audio Systems,
Inc.,' discharged some 12 employees because they walked
out to protest working conditions-protected activity un-
der Section 7 of the Act-in violation of Section 8(a)(1) of
the Act. Respondent denied the substantive allegations in
the complaint.2
'This reflects the correct name ,of Respondenit Ihhe complaint named
Automotive Sound Distributors, Inc.. as Respondent Al the hearing the
parties stipulated that Audio Systems. Inc. swas the laf, ful successor to Ai-
tormotive Sound
2 At the hearing, the General ( ounsel mfoved to aImend Ihe comniplaint Ii
add other substantive allegations of Sec. 8(aX I (of the Act Involvlng inlerro-
gation, threats, and surveillance which occurred in October 1977 Respon-
dent objected. and I reserved ruling on the motion On Aagust 9. 197l;. the
General Counsel moved to withdraw its motion to anmend Respondenl a;p-
parently does not object. The motion is granied eKcepT insofar as the orlgi-
Based on the entire record and my observation of the
witnesses and their demeanor, as well as the proposed find-
ings and briefs of the parties, I make the following:
FINDINGS OF FACT
I BtiSINESS OF RESPONDENT
Respondent, a Kentucky corporation, is engaged as an
importer and manufacturer of sound systems for the auto-
mobile industry at its facility in Louisville, Kentucky. Dur-
ing a representative 12-month period, Respondent sold and
shipped products valued in excess of $50,000 from its facil-
ity in Louisville directly to points outside the State of Ken-
tucky. Accordingly, I find, as Respondent admits, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II LABOR OR(;ANIZAIION
International Union of Electrical, Radio and Machine
Workers and its Local 741, AFI-CIO-LC (hereinafter
referred to as the Union), are labor organizations within
the meaning of Section 2(5) of the Act.
HiI THE AL.t.E(GiD UNFAIR LABOR PRA(1TI(Es
A. The Facts
The Union won an election among Respondent's em-
ployees on October 21. 1977, and was certified on Novem-
ber 1., 1977. After negotiations, a strike occurred on May 2.
Thereafter, on May 10, 1978, the parties reached and
signed a collective-bargaining agreement. Employees
Mitch Hays, Judith Cravens, and Shirley Lay were mem-
bers of the union negotiating team.
On January 3, 1978, a Tuesday, Production Foreman
Harold Henley arrived at the plant at approximately 6:30
a.m. This was the first workday after a 3-day holiday week-
end during which the plant was not operating. He discov-
ered that the boiler was not working. He lit the boiler and
it began sending warm air through the plant. The outside
temperature on January 3 was 18 degrees at 7 a.m., and by
10 a.m. it was 22 degrees.
The employees normally report at about 7 a.m. and be-
gan work at 7:30 a.m. Employee Barbara Rogers, a pro-
duction employee, arrived at 7:10 a.m. and went to the
cafeteria where she met Henley. Henley told her about the
boiler and mentioned that it was cold in the production
area. At 7:30. the production employees punched in and
went on to the production floor, which is a large undivided
area about one-half block long on the second floor of the
plant. The area was cold. Many of the employees wore
coats, sweaters, and gloves and congregated around a ceil-
ing fan which occasionally shot hot air into the production
area. The blower and the heater, the main sources of heat
nal amendment added a provision concerning the status of the ( harging
Par(i N it ion Since the partire stipulated I, the fact that the ('b arging Parts
:niotn was al labor organilation and since that fact has some background
significance. I shall not permit the withdrawal of this aspect of the amend
Inl n
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AUDIO SYSTEMS. INC
for the second floor, were a considerable distance from the
work stations of the production employees. A thermometer
near the blower read 42 degrees at 7:30 in the morning. By
10 a.m. the inside temperature reached about 58 degrees,
but the employees did not notice that the production area
felt any warmer.3
Henley, who was on the production floor at starting
time, jokingly told the employees not to build any fires. He
then left to attend a management meeting which began at
about 8 a.m. Very little work was accomplished due to the
cold condition of the production area. Rogers testified,
"[W]e stood around and tried to keep warm until 10
o'clock." Some employees tried to assemble parts for ra-
dios, but since they wore gloves, this was very difficult.
The employees discussed the termperature and what
could be done. They expressed a desire to go home and
selected Rogers and employee Pat Duncan to speak to
Henley about the problem. Rogers and Duncan ap-
proached Henley when he came back to the production
floor at about 10 a.m. and told him that the employees
wanted to go or were going home.4
According to Rogers, Henley asked how many' employ-
ees were going to leave and Rogers said all but two. Henley
grinned and then left. Rogers reported this conversation to
the rest of the employees. She told them that she told Hen-
ley the employees were going to leave and to tell Hewitt.
Shortly thereafter, about 10:20 a.m., 12 employees left
the premises. Henley was present as the emplohees
punched out but said nothing.
The following 12 employees left as a group within 10
minutes of each other: Mary Williams, Anna Drezin. Van-
ice Nelson, Tina Gillenwater, Leonard Schull, Barbara
Rogers, Kim Reeder, Karen Whitson, Nellie Thompson.
Clifford Middleton, Debra Bartley, and Patricia Duncan.
Employees Mitch Hays. Judith Cravens, and Shirley
Lay, who were union negotiating committee members. par-
ticipated in conversations with the other employees about
walking out. Hays testified that he had agreed to walk out
but changed his mind when his foreman. Fred Shulen.
stopped him and transferred him to a warmer spot in the
service department on the first floor. He worked there the
rest of the day. Hays also testified that as the employees
were walking out he told two of them to "hold on" and that
he would see what he could do about the lack of heat.
Other employees may have overheard this remark. Other
'The above is based primarily on the testilmons o RoFers land oiter
employees Henleyv testified that there were two thermometers on the scconid
floor and that when he checked them at 10 a m one read 0oer ,1) devrees
and the other over 50 degrees
4The testimony of Rogers on this issue is not entirclx Ile.r She tcliled
that she asked Henles Io mention the matter to Respondenl' nrclldcrilt
Weldon Hewitt to ask him or to do "h hateei he had i. 1,, I. l ccr.
Henley testified quite clearl, that Rogers and t)uncaln old l im "1f I didn't
get additional heat for them the\s were going home" lie Als. teifilrd hc did
nost give them permission to lease a( that lime
It is unclear how mans emnplosees stased Mi tch t.lia, and hldl ( r.l
vens participated in the consersatlns ahout ualkine out hubt Ihtc' l did ilt
leave Steve Martin also apparently did not lease Shirle, I a h id aitoallllcd
an injurs early in the morning and went to the ho.prlld , ,, he ius, nol
present when the cmplovees walked out 'vMartin iand I a.1 s 'rked in thc
parts department which was on the second floor hut ,cp.ar.aed fril tih
preducilon department After the u;lkout lHa1,s ,wl. transferredi 1i .t ,i%
er section on the first floor.
than this, neither Hays nor any other member of the union
negotiating committee advised the employees not to walk
out.
Vice President Jim Hanna was informed of the walkout.
About 20 minutes later, Hanna called Hays and Cravens
into his office. Hanna. Henley, and other supervisors were
considering discharging the employees who walked out.
One of the management officials told Hays that the em-
ployees "broke ('ompany policy by walking off their jobs"
and asked him if he thought the employees did wrong by
doing so. Hays replied, "if it is Company policy, they did
wrong but I think they were justified in doing it." Hays
also testified that the management officials were "upset
about them going out . . ." and that they were going to
transfer the employees to a warmer place. Hays asked if he
could call the employees to get them to return. Hanna
agreed. but before anything could be done it was de-
termined that Hewitt wanted to fire the employees. The
determination was made before noon, according to Hen-
lev.
Hanna testified that he was notified of the walkout by
Henley. His testimony is as follows:
A. Well I expressed to him my concern and ques-
tioned him with regard to why they had left without
discussing the problem and give us an opportunity to
do something about it and he asked what we were
going to do about it and I said we didn't have any
choice. The decision had already been made that the
stinrt' tion was the rules had clearly stated that if the
emplh)ncs leave they are terminated but I wanted to
get together with the union representatives and advise
them of what had I aspired and I immediately called
Mitch Hays and Mrs. Cravens into my office and
since Fred Shulen had been in on the negotiations
also, with the union prior to that. I asked that he at-
tend. and Harold Krisp was there and Harold Henley
and myself.
Q. And what transpired during that meeting?
A. Well. I called Mitch Hays and Judy ('ravens in
and we had a conference in my office and Harold
explained to them and I explained to them what had
happened and the string of events of that morning up
until the time the employees left and expressed first of
all ms, concern that they had not utilized their infor-
mal grievance procedure or utilized the elected offi-
cials of the union.
Q. Was Mitch Hays aware that they were going to
leas ve?
A. Yes. at that time Mitch Hays stated that he had
tried to settle the employees down and told them not
to leave. that thes would be fired. They also were up-
set and the\ just decided because the employees had
elected them and had not given them the opportunity
to represent them with management.
Q. Okas. and after 'ou had this discussion. was
'our decision made to terminate them?
A. Yes. I made the decision and called the union
representati'es in to advise them.
Q. Did you notifs Mr. Nahstoll, the international
represen ta tr e
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes. I don't remember if it was at my suggestion
or theirs but I said I thought we should contact Leo
and advise him of the situation and what was being
done, so at that time I did not have a conference
phone in my office so we proceeded to go [sic] the
conference room in the building and we all went in
there and made a conference call to Mr. Nahstoll and
I advised him what had transpired and what action
had been taken.
That evening Henley called the employees at home and
advised each of them that they were fired. This was also
mentioned to them by letter dated January 3 which stated:
This is to advise you that you have been terminated
with your refusal to work as you walked off the job on
January 3, 1978.
Enclosed is your final paycheck.
The employees were paid for one-half day of work.
B. Discussion and Analy'sis
The 12 employees who walked out were protesting work-
ing conditions, and thus their walkout constituted concert-
ed protected activity within the meaning of Section 7 of the
Act. Their discharges were for this reason, as is shown by
their discharge letters. 6 Accordingly, the discharges were
violative of Section 8(a)(l) of the Act under Washington
Aluminum Company, Inc., 370 U.S. 9 (1962), and its proge-
ny. The facts are strikingly similar in both cases. In Wash-
ington Alunminum, as here, the employees walked out be-
cause of lack of heat in their plant. The Supreme Court's
opinion in Washington Aluminum disposes of Respondent's
arguments that the employees lost their protected status
because they left work without permission: because they
violated a work rule to that effect by not making a specific
demand to the employer to remedy the situation: because
the walkout was premature, unreasonable, or unwise: and
because the employer was attempting to resolve the matter.
Contrary to Respondent, Washington Aluminum is not dis-
tinguishable in any significant way because of a lesser de-
gree of discomfort or temperature in this case: nor is it
important that the employees had not had occasion to
complain previously about the particular working condi-
tion. The Board does not pass on the reasonableness of a
concerted complaint about working conditions. Mushroom
Transportation Co., Inc., 142 NLRB 1150, 1157 (1963), en-
forcement denied on other grounds 330 F.2d 683 (3d Cir.
1964); Aro Inc., 227 NLRB 243, 244 (1976).
Respondent points out that, unlike the case in Washing-
ton Aluminum, here there was a certified bargaining repre-
sentative with which the Respondent was negotiating and
that there was an informal grievance procedure in effect by
which employees were to present their complaints through
employee representatives of the Union's negotiating com-
mittee. Neither of these arguments is persuasive insofar as
6 In its brief Respondent mispercei'es the doctrilnc f plortlLtet td iocllted
activities. It argues that the emplo ees Acre not dischirged for oimpl.xilmI
about the lack of heat this is immaterial if thes esre dl.,lt.irg.cd lfr. sh tkm
or walking out. which is a basic Sec. 7 right, soi long ;a the obhl c I, to
protest sworking condilioins here. the lack ot heat
they invoke the presence tof a union as a bar to protected
concerted activity on the part of the employees. Otherwise
protected activity may lose the protection of the Act where
employees take action in breach of a collective-bargaining
agreement. such as the violation of a no-strike clause,7 or
*where the employee's conduct is in derogation of the posi-
tion or the authority of the bargaining representative. No
such bar exists here.
Respondent admits that there was no contract in effect
at the time of the walkout, no agreed-upon prohibition
against strikes or walkouts, and no established grievance
procedure which was enforceable in any way, much less by
impartial arbitration. Respondent does allege, however,
that there was an informal grievance procedure in effect.
Hays testified that management was to notify him or an-
other employee union representative about discharges and
they would notify a higher union official. In this case, this
was apparently done directly by Hanna, who himself called
a representative of the International after the discharge, to
notify him after the fact. There was also a procedure
whereby complaints were to be transmitted through the
employee union representative to Hanna, who was desig-
nated as the management representative. Henley testified
that this procedure had been in effect even prior to the
Union's selection. Hanna testified that, in agreement with
the Union, he implemented part of the Union's grievance
proposal whereby complaints were to be made first to
frontline supervisoi-s and then to him through the employee
union representatives. Hays testified he never utilized this
procedure: Hanna testified that the procedure was utilized.
It is clear, however, that the procedure was never set forth
in writing and never announced to the employees.
The above hardly amounts to an established grievance
procedure which would render unprotected otherwise pro-
tected activity. There was no prohibition against the right
to strike even under the informal procedure, and the proce-
dure was not enforceable or mandatory. Moreover, the em-
ployees were unaware of the procedure whereby they were
to protest through their employee union representatives.
The parties were still negotiating a bargaining agreement.
In the absence of a written enforceable grievance policy, it
would be ludicrous to consider the informal procedure tes-
tified to by Hanna as a waiver of the important statutory
right of employees to strike. See N.L.R.B. v. Erie Resistor
Corp.. 373 U.S. 221. 234-237 (1963). Nor was the failure to
protest through the employee representatives in derogation
of the Union's position or authority. Hays attempted to
hold off two employees, but in the end he argued that the
employees were justified. He also attempted to have Re-
spondent call the employees back, but Respondent refused.
Nor is there an' evidence that the Union as bargaining
' I 8i /s \B )i I x [ ltlit e, IIn m ( ,,,,,},, 306 L.S. 332 (1939 ) In these
elqUIIllst,I a Le Ihe lt1:T11l It thioughtl tO salive Ihe emploees' right ito strike
illrls i t ie IC 11 of 1 ITLs l ci t is ai qiid pr's quo [or an agreement to a
ii/Jnehts1 r gsI UCC nfahllcitriii procedure " LR B I . hlagna-tk ( '.nip-
,,n 41 S 322 , 124 19
7
4)
Se /I,l,lsr tliu , I.irl, lid, 166Ih N RB 55l (19671 Howseser, een
hre Ilthe re i, a "c ih, l hIli rlca n tce lnrrcdure. that is. one writen into
a cll i -slsrgalrgiit i greement. the questisn is still hether an emplos-
s i' -tl llt' dlspalarir v [he estabilshed priocedure or enhances" it Dret
a Akoo,, 1sulot issPiti ( ,rpanms Is ' N I R B 544 F 2d 32() 325 326
7111 ( i11 197()
1318
AUDIO SYSTEMS, INC.
representative took a position in opposition to the walkout.
Indeed, the Union filed the charges herein on behalf of the
employees.
Finally, contrary to Respondent, even though two em-
ployees testified that they thought they had permission to
leave, it is clear that Respondent did not give any of the
employees permission to leave and based its discharge de-
cision on the fact that the employees walked out without
permission in violation of a company rule. As I have indi-
cated, Washington Aluminum makes quite clear that reli-
ance on this fact or an existing rule to this effect is legally
indefensible to justify discharge of employees for protest-
ing a working condition. Despite what the emplosees
thought or what Respondent thought they should have
done, they were admittedly discharged for walking out a
protected concerted activity when undertaken to protest
working conditions.9
CONCII USIONS OF LAW
I. By discharging Mary Williams, Anna Drezin, Vanice
Nelson. Tina Gillenwater. Leonard Schull. Barbara
Rogers, Kim Reeder, Karen Whitson. Nellie Thompson.
Clifford Middleton. Debra Bartley. and Patricia Duncan
for engaging in protected concerted activity, the Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a(l1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Tilt RE M[Ifla
I shall recommend that Respondent cease and desist
from discharging or discriminating against employees for
engaging in protected concerted activity and that it offer
reinstatement to the employees found herein tc have been
unlawfully discharged, with backpay. computed as provid-
ed in F. W. Woolworth Complany, 90 NLRB 289 (1950).
and Florida Steel Corporation,. 231 N1.RB 651 (1977)."'
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act. I herebs
issue the following recommended:
ORDER"
The Respondent, Audio Systems. Inc., L.ouis'ille. Ken-
tucky, its officers, agents. successors, and assigns. shall:
I. Cease and desist from:
(a) Discharging employees or discriminating in regard
to their hire or tenure of employment or ans term or condi-
tion of employment because they have engaged in protect-
ed concerted activities.
(b) In any other manner interfering with. restraining, or
coercing its employees in the exercise of their Section 7
rights.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Mar)' Williams, Anna Drezin. Vanice Nel-
son, Tina Gillenwater. Leonard Schull, Barbara Rogers.
Kim Reeder. Karen Whitson. Nellie Thompson. Clifford
Middleton. Debra Bartley, and Patricia Duncan immediate
and full reinstatement to their former jobs or. if those jobs
no longer exist, to su.bstantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges. and make them whole for any loss of earnings the)
may have suffered in the manner set forth in the section
herein entitled "The Remedy."
(b) Preserve and. upon request, make available to the
Board or its agents. for its examination and copying. all
payroll records, social securit? payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze and determine the amount of hackpay due
under the terms of this Order.
(c) Post in its plant in Louisville. Kentuck`, copies of
the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 9. shall, after being duly signed by the Respon-
dent's representatives, be posted by it immediatel, upon
receipt thereof. and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken b' Respondent to insure that
said notices are not altered, defaced. or covered byv any
other material.
(d) Notify the Regional Director for Region 9. in writ-
ing, within 20 dabs from the date of this Order, what steps
Respondent has taken to comply herewith.
II In Ililalirlll ,Whether ll. the emplo.ces ualked out to prroest the
1cold .or .helhcr s.rnie thought Rcsp*rrpdent had allolwed them lea',re llen-
Ie' unidertood thit Ihc crmlploeer s cere ialking oul Ioi protest the cold, and
it a;s foir ihi rerr,,n Ihal lieulit decided tio terminate the emploirees An
enip ler 'lille ie the Act If he punlshes emplo,!ees for uhah he heli hese i,
1lts ixs shlhl s ili fact protected See tirnn,nri.oad( h.eadle In, .212 N[ RB
77- i 19'4,. ifrelienil iettlired i22 I 2d 1050) (7ih ( it 1975): Ihrec Fun
irlatlui Si llr, < .lllut(. 184 \N RH 2'94. 2' i5 119711)
Sec. eculne utall I i /, P'/uhitnr5o a laimt ( , 1 t38 NlRH 71t 1962I
Inr Ihee Clnil itl crptlilrlr .rr flied :is prroided h' Sec 102 46 of the
Rulce, id Rgtl.llllr l Of the Ntlonaln. I ai.or Relatirrns Board. the findins.
kqll~.lqlllr ,il]d re-..llclllmiedcd ()rder hertill shall, as prosrded Ill Ser
111' 418 Ihe Ru' t indh RL ct ld.lllRiriI. he .adopted hb the Board and hcoinme
i fldins, ',rihsL rlr .II ad (Order Arid all ohIcsleClins thereto shall he
dc itcrld r,iscd fr 1ll plurp'Cs
II the evientr that this (Order i enfforred hs .! judgment of the t iuted
St.tite ( rilt of \pp.cals the s.,ords r the ntiohe re.adinr "P-ted hN Order
of thc \hr iltil I .h.,r Rclinonrs Boa.rd", shIll read "Po.led P'ursuianl Io i
IJudgerniiI f tihe t illtd S.tics ( 'url o Appe r i riforcing ain Order of the
\Nt.oln.i tsro Rclithiu Bo,r. 1d
APPEND)IX
N)1 It To EMiPIl(rtIts
Pt)S I I) HB ORI)I R 01 Ill1
N I IN Als [. B(oR Rl I At 41ONS BoRI)
An Agencs of the United States Government
After a hearing at A hich all parties had an opportunity to
present evidence. the National Labor Relations Board has
found that ,W'e iolated the National l ahor Relations Act
and has ordered us to post this notice:
W i ,lil n,i) discharge. discipline. or discriminate
1319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against any of our employees for engaging in concert-
ed activity for the purpose of mutual aid or protection
under Section 7 of the National Labor Relations Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights under Section 7 of the Act.
WE WILL offer to Mary Williams, Anna Drezin, Van-
ice Nelson, Tina Gillenwater, Leonard Schull, Barbara
Rogers, Kim Reeder, Karen Whitson, Nellie Thomp-
son, Clifford Middleton, Debra Bartley, and Patricia
Duncan immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substan-
tially equivalen . positions, and WE WILL make them
whole for any loss of pay suffered as a result of our
having discharged them.
AUDIO SYSTEMS, INC
1320