Bird Engineering

National Labor Relations Board - Board Decisions

Jun 26, 1984

270 N.L.R.B. 1415 (N.L.R.B. 1984)

BIRD ENGINEERING
Bird Engineering and Keith Main. Case 17-CA-
10713
26 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 21 December 1982 Administrative Law
Judge James S. Jenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(1) of the Act by terminating six em-
ployees who had clocked out of the Respondent's
facility during their lunchbreak in protest against a
new policy prohibiting employees from leaving the
premises during their work shifts. The Respondent
contends that the employees' actions constituted a
deliberate violation of a known work rule falling
outside the protection of the Act. We find merit in
the Respondent's position.
As fully set forth in the judge's decision the Re-
spondent imposed a "closed campus" rule on its
night-shift whereby employees would no longer be
permitted to leave its premises on lunchbreaks.
This was done in an effort to curb problems of
theft of both company and employee property,
drinking during lunch hours, and tardy returns
after lunch. '
When the rule was announced to four welding
department employees-Belak, Main, Burge, and
Greser-they all protested it as unfair. Prior to this
time they had followed a practice of punching
their timecards when leaving and returning from
lunch outside the facility. In response to the em-
ployees' complaints the Respondent repeated that
the new rule was effective immediately, that there
would be no permission granted to leave the facili-
ty for lunch as of that day, and that termination
from employment would result from disobeying the
rule. Two other employees, Christiansen and Lock-
hart, were informed about the rule later during the
same shift. Christiansen complained to the Re-
spondent that the rule was unfair because he did
There is no union at the Respondent's facility and there is no issue as
to the legitimacy of the Respondent's implementing the rule.
270 NLRB No. 214
not have his lunch with him inside the plant. Lock-
hart prepared to leave the building to go to the
parking lot for lunch. His leadman, Anderson,
warned him that he would be fired if he left the fa-
cility. When Lockhart asked the night supervisor if
he could go to the parking lot to retrieve medica-
tion from his van he received a negative reply.
Lockhart insisted that he needed at least to get his
medicine if not his lunch and that he should be
given a termination slip if the Respondent would
not permit him that. The night supervisor issued
Lockart a termination slip. Termination slips were
also issued to Burge, Greser, and Belak who had
decided after the meeting with management re-
garding the new rule to follow their usual practice
and clock out at lunchtime in protest over the im-
plementation of the rule.
A few days later, after researching a state statute
on the subject, Main and Christiansen decided that
it was their legal right to leave the plant for lunch.
Both punched their timecards as they prepared to
leave the building at lunchtime. As they were
about to leave, leadman Anderson called out to
them that they were fired. When they returned
from lunch they discovered that their timecards
were missing. Anderson told them that that they
were dismissed.
While there is no question that the issue of
lunchbreak policy is a condition of employment of
common concern to all employees and that there is
a concerted element present in at least five of the
six discharges which occurred here, 2 we find that
the actions of these employees were unprotected
under the Act. These employees did not engage in
a strike, withholding of work, or other permissible
form of protest to demonstrate their disagreement
with the Respondent's rule. Instead they simply
chose to ignore the rule in direct defiance of the
direction and warnings of management. By treating
the rule as a nullity and following their pre-rule
lunchtime practice they did not participate in a le-
gitimate protected exercise but rather engaged in
insubordination. These employees were attempting
both to remain on the job and to determine for
themselves which terms and conditions of employ-
ment they would observe.3 Their actions in delib-
2 Lockhart's action was taken alone and without apparent consultation
with his fellow shift employees. However, in view of our ultimate dispo-
sition of this case we find it unnecessary to address the concertedness
aspect of his decision to leave the facility.
I For this reason tic cases relied on by the judge are inapposite to the
facts of this case. If tlL employees had chosen to demonstrate their oppo-
sition to the lunchbreak rule by participating in a work stoppage or simi-
lar form of conduct then the protections of the Act might have applied.
However, here, they simply attempted to have it both ways-avoiding
the involvement in a labor dispute and deciding for themselves which
rules to follow and which to ignore. The Act does not protect this form
of conduct.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erate defiance of the Respondent's authority left
the Respondent with little choice but to take the
disciplinary action it had announced would be im-
posed for flouting the rule. Accordingly, we re-
verse the judge's finding of violations of Section
8(a)(1) and dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This
case was heard in Omaha, Nebraska, on September 14,
1982. The complaint issued on December 21, 1981,1 pur-
suant to a charge and amended charge filed on Novem-
ber 12 and December 16, respectively. The complaint al-
leges that on October 15 and 20 the Respondent dis-
charged certain employees who had concertedly clocked
out during their lunch period in protest of the Respond-
ent's premises during their work shift. The Respondent
contends the alleged discriminatees terminated them-
selves by voluntarily violating a work rule knowing the
consequences of such a violation was immediate termina-
tion. All parties were afforded full opportunity to
appear, to introduce evidence, and to examine and cross-
examine witnesses. Briefs were filed by the General
Counsel and the Respondent and have been carefully
considered.
On the entire record in the case, including the demean-
or of the witnesses, and having considered the posthear-
ing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted and found that the Respondent is en-
gaged in the manufacture of gocarts and minibikes in
Fremont, Nebraska; that it annually purchases goods and
services valued in excess of $50,000 directly from sources
located outside Nebraska, and annually sells goods and
services in excess of $50,000 directly to customers locat-
ed outside Nebraska; and that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ISSUE
Whether six employees were terminated or engaging
in a protected concerted activity.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent is engaged in manufacturing gocarts
and minibikes in Fremont, Nebraska. Ruth Minchow is
the Respondent's general manager and chief operating
officer; Bob Leftewitch is the plant manager; Stan Hart
I All dates hereafter are in 1981 unless otherwise stated.
is the production coordinator for the welding and fabri-
cation departments; Sam Austin is the night supervisor;
Keith McCoy was the leadman in the welding depart-
ment until October 5 when he was replaced by George
Anderson. The Respondent admits that Hart, Austin, and
Anderson are its agents. The Respondent's operations are
cyclical, with production normally building to a peak in
November of each year. It has been the Respondent's
practice that as orders increase the latter part of the year
to hire additional employees on a temporary basis. When
no longer needed, the temporary employees are terminat-
ed. As production requirements increase in the latter part
of the year, the Respondent increases the number of
work shifts. In August 1981, the fabrication department
went to three 8-hour shifts; in September the paint and
welding departments commenced operating on two 10-
hour shifts and the tire department also went to a multi-
ple-shift basis; in October the seat department com-
menced working two 12-hour shifts. About September
14, approximately a week prior to the welding depart-
ment going to a two-shift operation, the Respondent in-
stituted a "closed campus" rule with respect to employ-
ees working the night-shifts. The rule prohibited employ-
ees from leaving the Respondent's plant during the night-
shift lunch period. According to the Respondent, the
"closed campus" rule was instituted because of thefts of
employee and company property, the unauthorized use
of company property, suspicion of drinking during
lunchbreaks, and employees returning tardy from lunch-
breaks. Prior to the institution of the new policy, em-
ployees could leave the plant during authorized breaks
by punching out on their timecards and later punching
back in on returning. While the new rule was disseminat-
ed to employees then on the night-shift, the welding de-
partment night-shift had not yet come into existence.
Consequently, it is undisputed that the night-shift weld-
ing department employees were unaware of the "closed
campus" rule. In fact, as the testimony disclosed, Robert
Christiansen, an alleged discriminatee who started work-
ing for the Respondent around the end of September,
had left the plant during lunchbreak with Keith McCoy,
his leadman. 2 McCoy was replaced as the night-shift
leadman on October 5 by George Anderson whom the
Respondent admits is an agent, and who was also un-
aware that the "closed campus" rule prohibited employ-
ees from leaving the plant during lunchbreaks. About
October 14 or 15, Minchow learned from Phyllis Sheth,
the assembly department coordinator, that some of the
other employees were complaining that the "closed
campus" rule was not being enforced in the welding de-
partment. Accordingly, at a regularly scheduled manage-
ment meeting, the responsibility for seeing that the rule
was enforced was placed on Hart, who contacted Ander-
son and learned that the night-shift welding department
employees were indeed not following the "closed
campus" policy. Anderson had believed the applicable
rule involved employees clocking out and in when they
left the plant for lunch. Anderson informed Hart that
four employees, Tony Belak, Keith Main, Art Burge,
2 The Respondent considered the leadmen to be its agents.
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BIRD ENGINEERING
and Mark Greser, had been leaving the plant during their
lunch hour. Consequently, Hart and Anderson called
those four individuals to the foreman's desk in the weld-
ing area, where Hart informed them of the "closed
campus" policy, explaining that they would be terminat-
ed if they left the plant building during their lunch-
breaks.3 The four employees protested, arguing the new
policy was unfair and illegal and demanded that upper-
level management talk to them and that the policy be re-
duced to writing. Hart responded that he was manage-
ment and that anyone violating the policy would be ter-
minated immediately. An employee request that they be
granted permission to leave the building that night since
they customarily left for lunch, and as a consequence no
one had brought his lunch, was denied. Hart left instruc-
tions with Anderson and Austin to terminate anyone
who left the premises during lunchbreak.
B. The October 15 Terminations
After the meeting, the welding department employees
discussed among themselves and with Anderson the un-
fairness of the "closed campus" policy and their dis-
agreement with it. Consequently, several of the men de-
cided to follow their customary lunchtime procedure and
leave the building during their 10:30 to 11 p.m. lunch-
break.
As noted, Christiansen and Lockhart had been work-
ing in fabrication and had not learned of the newly insti-
tuted rule along with their coworkers. About 10 p.m.
that night, Anderson approached Christiansen in the fab-
rication department and told him that Hart was serious
about the new rule. Christiansen asked what the rule was
and Anderson explained that if employees left the build-
ing for lunch they were to be terminated. Christiansen
responded that he thought the rule was unfair, that his
"normal procedure was to go out for lunch," and that,
since he had not been forewarned, he did not have any
lunch with him. Anderson's reply was to the effect he
could not do anything about it. Lockhart normally ate
lunch in his van located in the employee parking lot.
When hired in mid-September, he had been informed
that employees were permitted to leave the building to
go to their vehicles, but that they should clock out if
they left the premises. About 10:30 p.m. on October 15,
as Lockhart was preparing to leave to go to his van for
lunch, Anderson told him that he would be "fired" if he
stepped outside. Anderson then called Austin over who
explained the "closed campus" rule. Lockhart, who had
missed the three previous days of work because of ill-
ness, asked Austin if he could go outside to his van and
get his lunch bucket and medication. Austin responded in
the negative.4 Lockhart then asked why employees had
not been given prior notice of the new policy, and
Austin stated he did not know. Feeling that he could go
without lunch but not without his medication, Lockhart
3 Welding department employees Robert Christiansen and Richard
Lockhart were both working in the fabrication department and did not
learn about the "closed campus" policy until later that night. Despite the
fact they were working in fabrication, they took their lunchbreak with
the rest of the welding department employees.
4 Lockhart had earlier shown Anderson a doctor's slip saying he had
been out with the flu.
said, "Well, if there's no other alternative, then write me
out a termination slip." Austin made out a termination
slip which reads:5
10-15-81
Richard Lockhart
Reason for termination
Left building during
lunch when told not too [sic]
Sam Austin
Similarly worded slips were issued to Burge, Greser,
and Belak who had decided to leave, as was their
custom, in protest over the "closed campus" rule.
C. The October 20 Terminations
There is no disoute but that employees other than
welding department employees had also complained to
management about the new policy. On Friday, October
16, following a management meeting, those terminated
welders who had shown up were informed that the ter-
minations stood. At 6 or 6:30 p.m. that Christiansen told
Hart "I thought it [closed campus policy] was a chicken
shit policy, and I didn't think it was fair, and it wasn't
probably even legal." Hart responded he had to enforce
it.
On Monday, October 19, Main and Christiansen decid-
ed to go to the library and try to find out if the "closed
campus" policy was legal. On the following day, Octo-
ber 20, they went to the library and made copies of the
following Nebraska statute:
48.212 Lunch hour; requirements; exceptions.
Any person, firm, or corporation owning or operat-
ing an assembling plant, workshop, or mechanical
establishment employing one or more persons, shall
allow all of their employees not less than thirty con-
secutive minutes between the hours of 12:00 noon
and 1:00 p.m., in each day for lunch, or thirty con-
secutive minutes during any other suitable hour for
lunch, and during such time it shall be unlawful for
any such employer to require such employee or em-
ployees to remain in buildings or on the premises
where their labor is performed. Provided, that the
provisions of this section shall not apply to any
person, firm, or corporation owning or operating an
assembling plant, workshop, or mechanical estab-
lishment where such assembling plant, workshop, or
mechanical establishment operates in three shifts of
eight hours each twenty-four hours.
Upon reporting for work that evening, Main and
Christiansen discussed the foregoing statute with other
employees. The two men stated they were going to leave
the premises for lunch that evening because they felt it
was within their legal right to do so, and invited other
employees to join them. As they were leaving they heard
Anderson holler at them. On their reentry to the plant
approximately a half hour later, Anderson stated they
I G.C. Exh. 6.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were terminated. At that point they showed Anderson a
copy of the above statute, maintaining it was against the
law for him to terminate them. Shortly thereafter, Hart,
whom Anderson had called, arrived at the plant. He or-
dered the two men to leave since they were no longer
welcome.
The following morning Hart informed Minchow of the
previous night's events and gave her a copy of the stat-
ute which Main and Christiansen had given him. Min-
chow called her attorney and was informed that, because
of the proviso in the statute, the Company had not vio-
lated the law in terminating the men.
The record shows that while the Respondent maintains
a lunchroom and a breakroom for employees, there are
no cafeteria or other food services offered with the ex-
ception of vending machines containing chips, cookies,
peanuts, sometimes rolls, soup, hot chocolate, and coffee.
The Respondent's employees are not represented by a
labor organization, nor were the alleged discriminatees
aware of any grievance procedure. Minchow described a
"very informal" "gripe committee" chosen by the em-
ployees in the different areas. Apparently Plant Manager
Leftewitch "would be meeting with one area a month"
to hear complaints. The Respondent "Employee Hand-
book"6 makes no mention of the "gripe committee," nor
have any notices been posted regarding its existence.
Positions of the Parties
The Respondent argues that it did not terminate the al-
leged discriminatees because they were protesting the es-
tablishment of the "closed campus" rule, but rather that
"as soon as the employees violated this work rule they
lost the protections of the law and therefore were legally
terminated." It is claimed that "simply because the work-
ing conditions create an inconvenience, even of a physi-
cal nature, this is an employee problem and not one that
the employer is forced by the law to deal with." It is
argued further that "all of this testimony with regard to
the employees' feelings concerning the closed campus
policy and the fact that they did not have lunches with
them on the evening of October 15, is completely irrele-
vant to a determination of the question presented in this
trial." The General Counsel argues that "Respondent's
lunch policy is a working condition and protest of and
objection to such a policy by employees are concerted
activities for the purpose of mutual aid and protection
within the meaning of Section 7 of the Act." Thus, the
action taken by the four employees on October 15 and
the two on October 20 was in protest over a condition of
employment and protected by Section 7 of the Act, and
the discharges therefore violated Section 8(a)(1).
Conclusions
Section 7 of the Act guarantees the right to engage in
"concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection." That section
insures not only the right to engage in union-concerted
activity but also the "fundamental right" to join together
to seek better terms, tenure, or conditions of employ-
e G.C. Exh. 2.
ment. Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345,
1347 (3d Cir. 1969), cert. denied 397 U.S. 935 (1970).
Accord: NLRB v. Washington Aluminum Co., 370 U.S. 9,
14 (1962). Section 8(a)(1) implements that guarantee by
making it an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exer-
cise of rights guaranteed by Section 7. Thus, as the Su-
preme Court emphasized in NLRB v. Washington Alumi-
num Co., supra, 370 U.S. at 14, the Act affords a broad
protection to unorganized employees who have "to
speak for themselves as best they [can]." The Court
therefore held that these employees do not "necessarily
lose their right to engage in concerted activities under §
7 merely because they do not present a specific demand
upon their employer to remedy a condition they find ob-
jectionable," that "[t]he language of 7 is broad enough to
protect concerted activities whether they take place
before, after, or at the same time such a demand is
made" and that "the reasonableness of workers' decisions
to engage in concerted activity is irrelevant to a determi-
nation of whether a labor dispute exists or not" Id. at
14-17.
Of course, Section 7 does not protect all group activi-
ties engaged in during the course of employment, with-
out regard to the objective sought or the means em-
ployed. Employee protests which are not reasonably re-
lated to terms and conditions of employment are not pro-
tected. Moreover, concerted protests have been held un-
protected where the means utilized contravened the pro-
visions or basic policies of the Act7 or were otherwise
unlawful,8 violent,9 or indefensible.10 Unless concerted
activity is unprotected for one of these reasons, however,
it is entitled to full statutory protection and an employer
cannot discipline his employees for engaging in such ac-
tivity. See NLRB v. Washington Aluminum Co., 370 U.S.
at 17; NLRB v. Erie Resistor Corp., 373 U.S. 221, 223
(1963); NLRB v. Mackay Radio & Telegraph Co., 304
U.S. 333, 334 (1938). "It is therefore clear," as the Board
stated in Plastilite Corp., 153 NLRB 180, 184 (1965),
enfd. in pertinent part 375 F.2d 343 (8th Cir. 1967):
. . . that the determination of whether a "labor dis-
pute" exists does not depend on the manner in
which the employees choose to press the dispute,
but rather on the matter they are protesting. Where
a "labor dispute" exists, the employees may engage
in a peaceful primary strike or any other lawful
manner of protest and still retain the protection of
the Act.
Consistent with these principles, the Board has long
held, with court approval, that concerted activity is pro-
' See, e.g., NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939) (strike in
breach of a collective-bargaining agreement).
8 Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942) (strike which
constituted mutiny under the Criminal Code).
a NLRB v. Fansteel Metallurgical Corp., 306 U.S 240 (1939) (forcible
seizure of employer's property).
10 NLRB v. Electrical Workers IBEW Local 1229, 346 U.S. 464 (1953)
(unjustifiable published attack on employer's product); Auto Workers v.
Wisconsin Board, 336 U.S. 245, 255-256 (1949) (series of intermittent eco-
nomic pressures).
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BIRD ENGINEERING
tected by the Act where the facts show that the protest
is directly related to employees' conditions of employ-
ment and is undertaken for their own mutual aid or pro-
tection. As stated by the Board in First National Bank &
Trust Co., 209 NLRB 95 (1974): "Respondent's lunch
policy clearly is a condition of employment, and the em-
ployees' objections to that policy . . . are concerted ac-
tivity for the purpose of mutual aid or protection within
the meaning of Section 7 of the Act." "It is well settled
that employees who attempt to persuade their employer
to modify or reverse management decision are engaged
in conduct which is protected by Section 7 of the Act."
Alumina Ceramics, Inc., 257 NLRB 784 (1981). Even in-
dividual protests are protected as concerted activity if
the matter at issue is of moment to the group of employ-
ees.
The undisputed testimony of the employees in the in-
stant case establishes that they discussed among them-
selves, and with other employees, both on October 15
and 20, the common problem of no longer being able to
leave the Respondent's premises during their lunchbreaks
because of the "closed campus" policy. It is clear from
the evidence that no employee was alone either in his
action or his interest. As in Oklahoma Allied Telephone
Co., 210 NLRB 916, 920 (1974), the grievance of each
was enmeshed with the complaint of the others and all
would have benefited from the adjustment of the matter.
It is concluded, therefore, that the dischargees on both
October 15 and 20 acted concertedly when they clocked
out during their lunchbreaks on those days, and that the
Respondent knew of the concerted nature of the dis-
chargees' conduct on both dates when it took action
against them.
In Washington Aluminum, supra, the Supreme Court
held that when a group of unrepresented employees
spontaneously ceased work after reporting to their jobs
because of their dissatisfaction with a condition in the
plant, even though in contravention of an express compa-
ny requirement of permission to leave the job, their con-
certed action was entitled to the Act's protection al-
though the stoppage had occurred without any advance
notice to the employer and there had been no prior
demand for a change in the prevailing working condi-
tion. As in Washington Aluminum, the Respondent's em-
ployees are unrepresented and do not have the benefit of
established procedures to protest undesirable working
conditions. With respect to the informal gripe committee
established by the Respondent, it is clear the alleged dis-
criminatees were not even aware of its existence. In that
connection, in Advance Industries, 220 NLRB 431, 432
(1975), the Board stated "the existence of a grievance
procedure unilaterally established by Respondent does
not provide a sufficient basis for denying the protection
of the Act to the . . . employees" there distinguishing
between that type of grievance procedure and one
reached mutually through the collective-bargaining proc-
ess. l'
iL Bechtel Inc., 248 NLRB 1222 (1980), cited by the Respondent, is
clearly distinguishable on this and other grounds.
Employees who together seek amelioration concerning
terms or conditions of employment are exercising a right
guaranteed to them under the Act, for which they may
not be discharged without violating the Act. Upon the
cited authorities, the facts as found, and the record pre-
sented, I find and conclude that the activities of the al-
leged discriminatees on both October 15 and 20 consti-
tuted concerted activities protected by Section 7 of Act,
and that the discharge therefore was in violation of Sec-
tion 8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. By terminating Arthur Burge III, Anthony Belak,
Mark Greser, and Richard Lockhart on October 14,
1981, and by terminating Keith Main and Robert Chris-
tiansen on October 20, 1981, as found herein, the Re-
spondent in each instance violated Section 8(a)(1) of the
Act.
3. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. I
shall recommend that the Respondent be required to
offer Arthur Burge III, Anthony Belak, Mark Greser,
Richard Lockhart, Keith Main, and Robert Christiansen
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, and to make them whole for any
loss of earnings that they may have suffered by reason of
Respondent's discrimination against them, by payment of
a sum of money equal to that which they normally
would have earned as wages from the dates of their re-
spective discharges to the date of the offer of reinstate-
ment, less their respective net earnings during such
period, with backpay computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon as set
forth in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 716 (1962). It is
further recommended that Respondent expunge from its
records any references to the unlawful discharges of said
discriminatees as found herein, and notify each of the
discriminatees in writing that this has been done and that
evidence of the unlawful discharges will not be used as a
basis for future personnel actions against any of them.
Sterling Sugars, 261 NLRB (1982).
It is also recommended that Respondent make avail-
able to the Board, upon request, all payroll and other
records to facilitate checking the amount of backpay
due.
[Recommended Order omitted from publication.]
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