Benesight, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 282 (N.L.R.B. 2001)

282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Benesight, Inc., f/k/a The TPA, Inc., and/or The Third
Party Administrators, Inc., and Anna Marie
Chavez, Laura Hayes, and Beatriz Mercado.
Case 27–CA–16932–1
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On February 9, 2001, Administrative Law Judge James
L. Rose issued the attached decision. The Respondent
filed exceptions and the General Counsel and the Charg­
ing Party filed answering briefs. The General Counsel
also filed cross exceptions with a supporting brief, and
the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings, and conclusions as modified and to adopt the rec­
ommended Order as modified and set forth in full be-
low.1
1. The judge found that the Respondent violated Sec­
tion 8(a)(1) by discharging employees Laura Hayes and
Beatriz Mercado, by constructively discharging em­
ployee Anna Maria Chavez, and by disciplining eight
other employees 2 for engaging in a protected work stop-
page on April 10, 2000.
For the reasons set forth in his decision, we agree with
the judge that the brief work stoppage here was protected
by Section 7 of the Act. It is well settled that “[t]he Act
protects the right of employees to engage in concerted
activities, including the right to strike without prior no­
tice.” Bethany Medical Center, 328 NLRB 1094 (1999),
citing NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963).
It is equally well established, however, that concerted
activities that are unlawful, violent, in breach of contract,
or otherwise indefensible are not protected. Id., citing
NLRB v. Washington Aluminum Co., 370 U.S. 9, 17
(1962).
As the Board has held, when an in-plant work stop-
page is peaceful, is focused on a specific job-related
complaint, and causes little disruption of production by
those employees who continue to work, employees are
1 We have modified the judge’s recommended Order in accordance
with our decisions in Excel Container, 325 NLRB 17 (1997), and Fer­
guson Electric Co., 335 NLRB 142 (2001). We have also modified his
recommended Order to provide narrow cease-and-desist language.
Sands Hotel & Casino, 306 NLRB 172 fn. 4 (1992), enfd. 993 F.2d 913
(D.C. Cir. 1993). See fn. 7, infra. Finally, we have substituted a new
notice.
2 These disciplined employees were Jeffrey Todd, Joan Ortiz, Patty
Kruse, Joan Johnson, Johnnie Hansen, Jarrod Efird, Cheryl Blount, and
Kim Pearson.
“entitled to persist in their in-plant protest for a reason-
able period of time.” Cambro Manufacturing Co., 312
NLRB 634, 636 (1993).3 Each of these conditions—
which distinguish a protected in-plant work stoppage
from an unprotected sit-down strike—was satisfied in
this case. Further, there can be no valid contention that
the discharged employees were engaged in trespass (the
misconduct of sit-down strikers). They never refused an
order to leave the premises, and they returned to work
when they were asked to do so. Thus, Respondent was
never deprived of the use of its premises.
Instead, the Respondent bases its defense principally
on the decision of the United States Court of Appeals for
the Seventh Circuit in Bob Evans Farms, Inc. v. NLRB,
163 F.3d 1012 (1998). According to Respondent, that
decision imposes a “proportionality obligation on em­
ployees engaging in the kind of unannounced work stop-
page pursued in this case.” Respondent argues that em­
ployees lose the protection of the Act if they use a dis­
proportionate means to protest a working condition. On
this view, because the Respondent contends that the
work stoppage here was an over-reaction to the employ­
ees’ grievance, it argues that it was free to discharge
them.4 We reject this argument as inconsistent with the
Act and its policies.
The Respondent challenges the reasonableness of the
employees’ decision to withhold their services. How-
ever, the Supreme Court has held that the “reasonable­
ness of workers’ decisions to engage in concerted activ­
ity is irrelevant to the determination of whether a labor
dispute exists or not.” NLRB v. Washington Aluminum
Co., supra, 370 U.S. at 16. As the Board recently held in
Trompler, Inc., 335 NLRB 478, 480 (2001),
[I]f employees are protesting working conditions, . . .
those employees can protest by any legitimate means,
including striking. The fact that some lesser means of
protest could have been used is immaterial. We would
not second-guess the employees’ choice of means of
protest.
Further, the Seventh Circuit’s “reasonableness” analy­
sis in Bob Evans Farms5 has been applied only in cir­
cumstances where the employee work stoppage is to pro-
test a supervisor’s conduct, selection, or discharge.
3 Courts have approved the Board’s analysis. See, e.g., Roseville
Dodge v. NLRB, 882 F.2d 1355 (8th Cir. 1989); NLRB v. Pepsi Cola
Bottling Co ., 449 F.2d 824 (5th Cir. 1971), cert. denied 407 U.S. 910
(1972); and Golay & Co. v. NLRB, 371 F.2d 259 (7th Cir. 1966), cert.
denied 387 U.S. 944 (1967).
4 The employees were protesting the addition of a requirement that
they fill out a certain form on each customer call that they received.
5 This analysis is premised on the Fifth Circuit’s decision in Dobbs
Houses, Inc. v. NLRB, 325 F.2d 531 (5th Cir. 1963).
337 NLRB No. 40
TPA, INC. 283
Thus, the issue in those cases—where it was alleged that
the supervisor’s conduct, selection, or discharge in turn
impacted employees’ conditions of work—was whether
the walkout was a reasonable means of protesting an
employer’s action. That analysis is inapplicable here
where the April 10 work stoppage was in response to a
direct change to the employees’ terms and conditions of
employment, and did not involve employee protest con­
cerning a supervisor.
Finally, even where we find the principles of Bob Ev­
ans Farms applicable, that case is factually distinguis h-
able. Bob Evans Farms involved an employee strike
over the dismissal of a restaurant supervisor which, since
it was undertaken at the peak dinner hour, “had the im­
mediate effect of crippling the restaurant’s ability to
function.” 163 F.3d at 1024. Further, there was no evi­
dence in Bob Evans Farms that the striking employees
were willing to resume their posts. Id. This case pre­
sents a very different picture. The employees’ grievance
involved a matter that directly changed their working
conditions, the effect of their brief work stoppage was
comparatively modest, and the employees did return to
work promptly. And, even assuming that employees
have a “proportionality obligation” when engaging in
lawful concerted activity, that obligation was satisfied
here: the limited work stoppage clearly bore a reasonable
relation to the underlying grievance.
For the foregoing reasons, we find that the employees’
April 10 work stoppage was protected and that the disci­
pline, discharge, and constructive discharge of the par­
ticipants violated Section 8(a)(1).6
6 The Respondent did not file an exception to the judge’s characteri­
zation of Chavez’ termination as a constructive discharge. However, in
the Respondent’s subsequent reply to the General Counsel’s and the
Charging Party’s opposition to the Respondent’s exceptions, and in
response to the General Counsel’s and the Charging Party’s cross-
exceptions, the Respondent asserts to the Board for the first time that
Chavez voluntarily resigned from her employment, and that the General
Counsel and the Charging Party have failed to meet their burden of
showing that Chavez was constructively discharged under the standards
articulated in Groves Truck & Trailer, 281 NLRB 1194, 1195 (1986).
Regardless of whether the Respondent’s belated challenge to the
constructive discharge characterization of Chavez’ termination could be
considered as an untimely exception, we find, in any event, that Chavez
was effectively discharged. Specifically, Mercado and Hayes, Chavez’
two fellow instigators of the protected work stoppage, had just been
unlawfully discharged. Chavez’ supervisor, Aaron Tomlinson, told
Chavez “You’re next.” Chavez told Tomlinson “I won’t let you fire
me.” Tomlinson then said and did nothing to dispel Chavez of her
clearly expressed belief that she was about to be fired. Consequently,
Chavez gathered up her personal belongings, asked a fellow employee
to take her employee badge and parking permit, and left the premises.
The fact of discharge does not depend on the use of formal words of
firing. Hale Mfg. Co., 228 NLRB 10, 13 (1977), enfd. 570 F.2d 705
(8th Cir. 1978). It is sufficient if the words or action of the employer
“would logically lead a prudent person to believe his [her] tenure has
2. The judge dismissed the allegation that the Respon­
dent violated Section 8(a)(1) when Manager Vicki Potes­
tio told employee Mercado that, when Potestio’s boss
was notified of the work dispute and stoppage, “the first
thing [the boss] said was to fire everybody” involved.
The judge found that Potestio’s statement was not unlaw­
ful because it reflected management’s reaction to a past
event [the work stoppage], and did not threaten future
action. The General Counsel excepts, and we find merit
to that exception. Thus, as argued by the General Coun­
sel, we find that Potestio’s statement, uttered after the
work stoppage, would reasonably tend to discourage fu­
ture protected concerted activity. It sends the message to
employees that, if they engaged in those activities, they
could be discharged. The Board has held that an em­
ployer’s threat to discharge employees if they engage in a
strike or other protected work stoppage violates Section
8(a)(1) of the Act.7 Thus, we find that the Respondent
violated Section 8(a)(1) based on Potestio’s statement to
Mercado.
3. The General Counsel also excepts to the judge’s
failure to find that the Respondent independently vio­
lated Section 8(a)(1) by telling discharged employees
that they had been terminated for engaging in protected,
concerted activity.
The judge found that Manager Potestio told Mercado
on April 11 that, based on Mercado’s participation in the
previous day’s work stoppage, she had been insubordi­
nate and was terminated. Although the judge determined
that Potestio’s statement was proof that the discharge
was unlawful, he concluded that this statement was sub­
sumed by the discharge violation. We disagree. Rather,
as argued by the General Counsel, we find that Potestio’s
statement linking her discharge to the protected walkout
was coercive and independently violated Section 8(a)(1).
Sands Hotel & Casino, 306 NLRB 172, 184 (1992),
enfd. 993 F.2d 913 (D.C. Cir. 1993). Thus, the statement
was one that would reasonably tend to coerce employees
in the exercise of their Section 7 rights.
been terminated.” NLRB v. Trumball Asphalt Co., 327 F.2d 841, 843
(8th Cir. 1964). Under this analysis, the determination of whether there
was a discharge is judged from the perspective of the employees, and is
based on whether the employer’s statements or conduct “would rea­
sonably lead the employees to believe that they had been discharged.”
NLRB v. Hilton Mobile Homes, 387 F.2d 7, 9 (8th Cir. 1967).
Applying these principles here, we find that Tomlinson’s silence and
inaction, in the face of Chavez’ clearly expressed and entirely reason-
able belief that she was about to be fired on the heels of her cohorts
Mercado and Hayes, conveyed the fact of her termination to her just as
clearly and effectively as the Respondent had expressly conveyed the
immediately preceding discharges to Mercado and Hayes.
7 See, e.g., Robertson Industries, 216 NLRB 361 (1975), enfd. 560
F.2d 396 (9th Cir. 1976).
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Contrary to our dissenting colleague, we find no basis
for disregarding this otherwise unlawful 8(a)(1) state­
ment simply because the Respondent followed through
on its coercive claim and terminated Mercado. We reject
our colleague’s argument that Potestio’s statement was
merely part of the res gestae of the unlawful discharge.
The statement and discipline are separate and distinct
violations. To disregard this violation would effectively
privilege unlawful statements—which are independently
coercive—when the respondent contemporaneously
gives effect to its unlawful words.
Accordingly, we reverse the judge and find that Potes­
tio’s statement to Mercado violated Section 8(a)(1).
4. Finally, we find no merit in the General Counsel’s
contention that the judge, by failing to find that the Re­
spondent violated Section 8(a)(1) when Potestio interro­
gated and threatened employees for engaging in pro­
tected concerted activities. It is clear, however, that the
judge did find that Potestio interrogated and threatened
employee Chavez in violation of Section 8(a)(1). Spe­
cifically, the judge found that Potestio’s question to
Chavez as to who “the instigators of the strike were,”
followed up by Potestio’s statement that, “she felt that it
was insubordination on my part and I should have known
better! That it would affect my employment,” consti­
tuted an unlawful interrogation coupled with a coercive
threat.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified and fully set forth below,8 and orders that the
Respondent, Benesight, Inc., f/k/a The TPA, Inc., and/or
The Third Party Administrators, Inc., Wayzata, Minne­
sota, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging, giving written warnings to, or other-
wise discriminating against employees because they en-
gage in concerted activity protected by the National La­
bor Relations Act.
(b) Threatening employees with discharge while inter­
rogating them concerning their participation in protected,
concerted activity.
8 The judge recommended that the Board issue a broad order requir­
ing the Respondent to cease and desist from violating the Act “in any
other manner.” We note that the General Counsel did not request broad
injunctive relief and we do not find the Respondent’s conduct in this
case egregious enough to warrant the issuance of such an order. Ac­
cordingly, we are issuing a narrow cease-and-desist order requiring the
Respondent to cease and desist from violating the Act “in any like or
related manner.” See Sands Hotel & Casino, supra; Hickmott Foods,
242 NLRB 1357 (1979).
(c) Threatening employees with discharge if they en-
gage in protected, concerted activity.
(d) Coercing employees by informing them that em­
ployees had been discharged for having engaged in con­
certed activity protected by the Act.
(e) In any like or related manner, interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Beatriz Mercado, Laura Hayes, and Anna Marie Chavez
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Beatriz Mercado, Laura Hayes, and Anna
Marie Chavez whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them in the manner set forth in the Remedy section of
this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and to the unlawful written disciplines to Beatriz
Mercado, Laura Hayes, Anna Marie Chavez, Jeffery
Todd, Joan Ortiz, Patty Kruse, Joan Johnson, Johnnie
Hansen, Jarrod Efird, Cheryl Blount, and Kim Pearson,
and within 3 days thereafter notify the employees in writ­
ing that this has been done and that the discharges or
disciplines will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec­
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility copies of the attached notice marked “Appen­
dix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
9
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 Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TPA, INC. 285
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al­
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed its facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 10, 1999.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CHAIRMAN HURTGEN, dissenting in part.
I agree with my colleagues that the Respondent vio­
lated Section 8(a)(1) by terminating employee Beatriz
Mercado, for engaging in a protected work stoppage. I
also agree that this violation was established, in part, by a
statement by Manager Vicki Potestio to Mercado. In that
statement, Potestio informed Mercado that, based on her
participation in the work stoppage, she had been insub­
ordinate and was terminated. Contrary to the majority,
however, I agree with the judge that Potestio’s statement
did not independently violate Section 8(a)(1), or call for
an additional remedy. Rather, I find that Potestio’s
statement was part of the res gestae of the unlawful ter­
mination, and is subsumed by that violation. Further, the
remedy for that violation adequately insures employees
of their statutory rights. Respondent discharged Mercado
for her protected activity. The order requires Respon­
dent, inter alia, to cease and desist from such conduct,
and to notify employees that it will cease and desist
therefrom. Accordingly, there is no need to find an addi­
tional violation based on Respondent’s telling an em­
ployee that it had engaged in that violation. This finding
of an additional violation and the imposition of an addi­
tional remedy constitute the kind of unnecessary “piling
on” that a busy federal agency should seek to avoid.
In all other respects I agree with my colleagues.
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 or­
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge, give written warnings to, or
otherwise discriminate against you because you engage
in concerted activity protected by Section 7 of the Act.
WE WILL NOT threaten you with discharge while inter­
rogating you concerning your participation in concerted
activity protected by Section 7 of the Act.
WE WILL NOT threaten you with discharge if you en-
gage in protected, concerted activity.
WE WILL NOT coerce you by telling you that other em­
ployees have been discharged for having engaged in con­
certed activity protected by Section 7 of the Act.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exe rcise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Beatriz Mercado, Laura Hayes, and Anna
Marie Chavez immediate and full reinstatement to their
former jobs, or if those jobs no longer exist, to substan­
tially equivalent positions of employment, without preju­
dice of their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Beatriz Mercado, Laura Hayes, and
Anna Marie Chavez whole for any loss of wages or other
benefits they may have suffered as a result of our dis­
crimination against them, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the above
unlawful discharges of Beatriz Mercado, Laura Hayes,
and Anna Marie Chavez and to the written disciplines
given to Jeffery Todd, Joan Ortiz, Patty Kruse, Joan
Johnson, Johnnie Hansen, Jarrod Efird, Cheryl Blount,
and Kim Pearson and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the discharges will not be used against them in any
way.
BENESIGHT, INC., F/K/A THE TPA, INC. AND/OR
THE THIRD PARTY ADMINISTRATORS, INC.
Leticia Pena, Esq., for the General Counsel.

Kevin P. Staunton, Esq., of Minneapolis, Minnesota, for the

Respondent.
Richard Rosenblatt and Stanley M. Gosch, Esq., of Greenwood
Village, Colorado, for the Charging Parties.
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Pueblo, Colorado, on November 28, 2000,1
on the General Counsel’s complaint which alleged that the
Respondent discharged the three Charging Parties for having
engaged in a protected, concerted work stoppage in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. §151, et seq. Other violations of Section
8(a)(1) are also alleged.
The Respondent generally denied that it committed any vio­
lations of the Act and affirmatively contends the employees’
work stoppage on April 10, was not protected.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom­
mended Order.
I. JURISDICTION
The Respondent is a corporation engaged in the design and
administration of self-funded healthcare benefits for employers
and their employees, with its principal office in Wayzata, Min­
nesota, and a facility in Pueblo, Colorado. The Respondent
annually performs services from its Pueblo facility directly for
firms located outside the State of Colorado valued in excess of
$50,000. The Respondent admits, and I find, that it is an em­
ployer engaged in interstate commerce within the meaning of
Sections 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR L ABOR PRACTICES
A. The Facts
So far as is material here, the Respondent employs at its
Pueblo facility a customer service staff of about 76 under Man­
ager Vicki Potestio. The basic position is customer service
representative (CSR) whose duties involve taking telephone
questions concerning specific claims as well as general eligibil­
ity and benefit information for the various healthcare plans
administered by the Respondent. The CSRs are organized into
geographical area teams and are trained on the various health-
care policies administered by the Respondent in a specific area.
The CSRs involved in this dispute are members of the Minne­
sota team and service the 147 policies the Respondent adminis­
ters in Minnesota. For each call, the CSR makes a computer
entry and is required to handle 65 to 71 calls a day.
On Friday, April 7, the CSRs were notified of a temporary
change in procedure such that they would be required to fill out
an “action ticket” on each call requiring some action and sub­
sequently transfer the action ticket documentation to their com­
puter. They were advised they would be paid overtime if such
was necessary to complete the transfer process.
Since Friday was a typically slow day, the CSRs apparently
had no difficulty with this change in process. However, Mon­
day, April 10, was very busy and many of the CSRs in the
Minnesota team concluded that requiring a written action ticket
was time consuming causing them to fall behind in making
1 All dates are in 2000, unless otherwise indicated.
computer entries. Apparently there was also some confusion as
to when and how the CSRs would imput the action ticket data
to their computers. Thus during their morning break, Anna
Marie Chavez, Laura Hayes, and Beatriz Mercado discussed
this matter and determined not to take any more calls until they
could get a resolution of their problem from management, not-
withstanding that the new system was announced to be tempo­
rary. They also persuaded other members of the Minnesota
team to log off the phone system and join them.
When Supervisor Aaron Tomlinson asked them to log back
on to the system they refused. They were then approached by
Potestio, who asked the employees to designate a group of four
to participate in a phone conference with a management official
in Minnesota later that day concerning the new procedure. The
employees agreed and the work stoppage ended after about 15
to 20 minutes. According to the Respondent’s record, during
this period 56 calls went unanswered. This record also shows
that between 4 and 5 p.m. (the ending time on the report), 61
calls went unanswered.
Following what the Respondent refers to as an investigation,
it was concluded that Mercado, Hayes, and Chavez were the
instigators of the “phone line shut down, giving unauthorized
directives to their peers to participate in the shutdown, and not
following directives from the supervisors and managers to get
back on the phones.” (R. Br. 11.) Thus on April 11 Mercado
and Hayes were discharged. Upon being told by Tomlinson
that “You’re next,” Chavez told him “I won’t let you fire me.”
She took her personal effects from her desk, asked another
employee to take her badge and parking pass, and she left. The
eight other employees involved were given written warnings
styled “final” counseling.
The discharges of Mercado and Hayes and the constructive
discharge of Chavez are alleged violative of Section 8(a)(1) of
the Act. Certain statements made by Potestio and Tomlinson
during the course of the investigation and on effecting the dis­
charges are also alleged violative of Section 8(a)(1).
The CSRs are not represented by a labor organization, nor do
they have any kind of a grievance procedure, though the Re­
spondent argues that such exists because under the “Communi­
cation” section in “The TPA Employee Handbook” employees
are advised that their supervisor “is your best and fastest source
of information and generally should be your starting point to
help you with your suggestions or problems.” Also available to
employees are human resources representatives and a sugges­
tion box. There is, however, no formal grievance procedure.
B. Analysis and Concluding Findings
1. The work stoppage
As a general proposition, a concerted work stoppage by em­
ployees, even if they do not leave the work area, is protected
activity under Section 7 of the Act. But, as the Board noted in
Cambro Mfg. Co., 312 NLRB 634, 636 (1993), “Not every
work stoppage is protected activity, however; at some point, an
employer is entitled to assert its private property rights and
demand its premises back. The line between a protected work
stoppage and an illegal trespass is not clear-cut, and varies from
case to case depending on the nature and strength of the com­
peting interests at stake.” (Citations omitted.)
TPA, INC. 287
Here the work stoppage was undeniably concerted and lasted
about 15 to 20 minutes. The employees had no recourse to a
grievance procedure. They were not told to resume work or
leave the Respondent’s premises. Thus, under these circum­
stances, the issue is whether the employees’ activity lost its
protection.
In all the cases analyzed by the Board in Cambro (including
those cited by the Respondent) where the work stoppage was
found to have lost its protection under the Act there was a de­
mand by the employer that the employees leave the premises.
Usually the work stoppage was much longer than the 15 to 20
minutes here. And there was in place some kind of a grievance
procedure. As noted, none of those factors was present here.
Specifically, an illegal trespass found by the Board and courts
was not present here. As soon as Potestio approached the em­
ployees and asked them to select four employees to participate
in a conference call to resolve their grievance, the employees
returned to work. However, the proffered opportunity to speak
with higher management did not materialize.
Finally, the damage to the Respondent’s work product was
minimal. Although 56 calls went unanswered, this does not
mean that they were not eventually serviced. While quick and
accurate service of incoming calls is an important aspect of the
Respondent’s product, at least weekly calls are deferred as, for
instance, when the Respondent has a meeting for all employees
on a given team. Further, later on April 10, 61 calls went unan­
swered during a 1-hour period. The damage to the Respon­
dent’s operation must be considered minimal. I therefore reject
counsel for the Respondent’s argument that the damage done
was “a disproportionate means of protest” of the working con­
dition the employees sought to correct by their concerted ac­
tion.
I conclude that the work stoppage concertedly engaged in by
employees on April 10 did not lose the protection of Section 7
and that to have disciplined and discharged employees who
participated in it was violative of Section 8(a)(1) of the Act.
The Respondent admitted discharging Mercado and Hayes
and giving written warnings to other employees because they
engaged in the work stoppage; however, the Respondent denied
the allegation that Chevez was constructively discharged. The
only testimony concerning Chevez is her credible assertion that
she quit when Tomlinson told her she would be next, after
Mercado and Hayes had been terminated. I conclude that her
quitting, shortly in advance of being fired along with the others,
was a constructive discharge for having engaged in protected,
concerted activity.
2. Interrogation and Threats
It is alleged that certain statements of Tomlinson and Potes­
tio during and following the work stoppage independently vio­
lated Section 8(a)(1). Sp ecifically, it is alleged that when
Tomlinson sought to learn why the employees had logged off
their phones on April 10, such was unlawful interrogation. I
conclude not.
Chevez testified that after the employees had decided to log
off their phones, Tomlinson approached them, noted that he too
“would have been pretty frustrated” with the change in policy.
He asked “what are your gripes.” The employees told him that
they did not what to go back to their phones until the problem
was resolved. He asked if they were “really going to do this.”
They told him they were, and he left to get Potestio. There is
nothing in this testimony which would suggest a threat or other
unlawful coercion. I conclude that Tomlinson’s attempt to find
out what the employees were about was well within the bounds
permissible under the Act. Rossmore House, 269 NLRB 1176
(1984), affd. 760 F.2d 1006 (9th Cir. 1985). Accordingly, I
shall recommend that paragraph 4 of the complaint be dis­
missed.
Chevez further testified that when Tomlinson returned with
Potestio, Potestio “asked us what we considered we were doing,
what were we doing. She was just very angry that we had as a
group decided to log off the phone rather than take it to her like
she said we could.” Chevez and others responded that they felt
overwhelmed, did not believe logging off was insubordination,
and felt they were not being supported by the management
team. Potestio then asked them to log back on and she would
let a group of four sit in on a conference call to the home office.
I find no threat in this.
However, later, when Potestio was investigating this matter
she called in Chevez, asked who “the instigators of the strike
were” and stated: “she felt that it was insubordination on my
part and that I should have known better. That it would effect
my employment. That it could effectively stop my employ­
ment.” Such is interrogation with a coercive threat and there-
fore violated Section 8(a)(1) of the Act.
Mercado testified that later on April 10, she was called in
and questioned by Potestio and Fran Alexander, identified as an
individual with human resources, concerning the work stop-
page. Potestio asked what had led to what she referred to as the
strike. Mercado denied that it was a strike, but told Potestio of
their problems with the new system. Mercado testified that
Potestio “told me that she has spoken to Cindy Gibbs (Potes­
tio’s boss stationed in Minnesota) and Cindy told her—the first
thing that Cindy said was to fire everybody. She wanted eve­
rybody fired.”
Citing Robertson Industries, 216 NLRB 361 (1975); and
Safety Kleen Oil Services, 308 NLRB 208 (1992), counsel for
the General Counsel argues that Potestio’s statement that Gibbs
told her to fire all the employees who had engaged in the work
stoppage was an unlawful threat. No doubt this statement is
evidence that the discharges were unlawful. However, I con­
clude that it was not independently an unlawful threat. A threat
implies an if/then relation between two future events. In the
cited cases, the employer told employees that should they con­
tinue to engage in protected activity, they would be discharged.
Here, the protected activity had ceased nor was there any indi­
cation that such would resume. Gibbs’ statement was her reac­
tion to a past event. I conclude that this statement did not
threaten employees with discharge should they engage in some
future activity. I therefore conclude that paragraph 5(a) and (b)
be dismissed.
Similarly, the General Counsel alleges that the Respondent
independently violated Section 8(a)(1) by telling the discharged
employees that they had been discharged for having engaged in
protected, concerted activity. No doubt Potestio’s statement to
Mercado is proof that the discharges were unlawful; however, I
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conclude that the statement, so far as it might be considered a
violation of the Act, is subsumed in the finding that the dis­
charges were unlawful. Accordingly, I will recommend that
paragraph 5(c) be dismissed.
On April 12 Potestio called a meeting of the entire customer
service department and, according to the credible testimony of
Brenda Crespin, Potestio said “she’s sorry for you know kind of
what happened in front of all of us new people but they got
what they deserved.”
This is alleged in paragraph 5(d) to have been violative of
the Act. I agree. Though somewhat ambiguous, I conclude
that the remaining employees were left with little doubt that
discharged employees had been discharged for engaging in
protected activity. The statement was therefore coercive. See
Baker Electric, 317 NLRB 335 (1995), enfd. 105 F.2d 647 (4th
Cir. 1997).
III. REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I conclude that it should be ordered to cease
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including offering
Beatriz Mercado, Laura Hayes, and Anna Marie Chavez rein-
statement to their former jobs, or if those jobs no longer exist,
to substantially equivalent positions of employment, and make
them whole for any loss of earnings and other benefits, com­
puted on a quarterly basis from date of discharge to the date of
a proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), and removing from its files any reference
to the discharges and the written warnings given to Jeffery
Todd, Joan Ortiz, Patty Kruse, Joan Johnson, Johnnie Hansen,
Jarrod Efird, Cheryl Blount, and Kim Pearson.
On the foregoing findings and conclusions, I hereby enter the
following recommended
[Recommended Order omitted from publication.]