BMC America, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 362 (N.L.R.B. 1991)

362
304 NLRB No. 19
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is well established that the Board may rely on uncontradicted testimony
in the record that the judge failed to discuss. Douglas Aircraft Co., 238 NLRB
668, 671 fn. 20 (1978), enfd. 655 F.2d 932, 938 (9th Cir. 1981).
2 The contract also contained the following provision:
The Company has acquired certain assets and liabilities of BMC Prod-
ucts, Inc., which are presently located at 4630 W. Harrison Street, Chi-
cago, Illinois. The Company intends to transport the equipment and
business to its existing production facility in Harvard, Illinois. Prior to
relocation, the Company desires to operate the business at its present
location on an interim basis only. The Company and the Union ac-
knowledge the temporary nature of this operation and the right of the
Company to transfer and relocate all and any part of the business from
its present location to Harvard, Illinois, at any time and from time-to-
time.
3 Union Business Agent Rose Alvarez and Union Steward Rubin Gray were
among those representing the Union. Employee Relations Manager Mike
Rosenia and Maintenance Foreman Jim Mundo represented management. Gray
was bilingual and interpreted for Alvarez as she spoke to the group of pre-
dominantly Spanish-speaking employees.
4 Several days prior to March 11, 1988, BMC America had prepared a letter
to each employee either offering him continued employment with BMC Amer-
ica, or asking him to call over the weekend to see whether he would be hired.
Offers of employment, however, may have been conditioned on the employ-
ee’s filling out a new employment application between 11 a.m. and noon on
March 11. Employees received their letters as they left work on March 11.
The discriminatees in this case were not present either to fill out the applica-
tions or to receive their letters. They had already been discharged, so they did
not return to work after their visit to the Board.
BMC America hired about 90 percent of BMC Products’ employees.
5 BMC America began gradually discontinuing operations at the Chicago fa-
cility in June 1988, on a department-by-department basis. The shipping depart-
ment was shut down on July 5, 1988. The packaging department was shut
down on September 16, 1988. The entire move was complete by October 20,
BMC America, Inc., a Subsidiary of Cannon Ball
Industries, Inc., a Successor of BMC Products,
Inc. and/or BMC Products, Inc. and Geniro
Garcia. Case 13–CA–27594
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 27, 1990, Administrative Law Judge Irwin
H. Socoloff issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge found that Respondent BMC America,
Inc., a subsidiary of Cannon Ball Industries, Inc.
(BMC America) was a successor to Respondent BMC
Products, Inc. (BMC Products). No exception was filed
to this finding and we therefore adopt it. The judge
further found that BMC Products did not violate Sec-
tion 8(a)(1) or (4) of the Act by threatening to dis-
charge and discharging its employees. Accordingly, he
recommended that the complaint be dismissed in its
entirety. For the reasons set forth below, we find merit
in the General Counsel’s exceptions.
The following factual summary is based on the
judge’s findings and the uncontradicted record testi-
mony.1 Until March 11, 1988, BMC Products manu-
factured recreational vehicle parts and office equip-
ment. In February 1988, BMC Products entered into an
asset purchase agreement with BMC America, under
which BMC America agreed to buy the business and
substantially all the assets of BMC Products. The clos-
ing occurred on the evening of March 11, 1988. At the
time of the sale, BMC Products’ employees, rep-
resented by the Chemical and Allied Products Workers
Union, were covered by a collective-bargaining agree-
ment that expired May 31, 1990. The agreement con-
tained seniority and pension contribution provisions,
grievance and arbitration provisions, and a no-
strike/no-lockout clause. The agreement also provided:
In the event that the plant and/or any of its oper-
ations are moved, or the name is changed by any
of the owners, this contract between the parties
shall continue in effect until its expiration date
and all the employees shall be offered the oppor-
tunity to transfer.
By letter dated March 3, 1988, the Union was ad-
vised that BMC America would purchase the assets
and business of BMC Products, and that, following the
March 11 closing, BMC Products would discontinue
business. The letter also advised the Union that BMC
America elected not to assume the collective-bargain-
ing agreement.
Following receipt of this letter, the Union met with
and negotiated a new contract with BMC America.
The new agreement was substantially identical to the
one between the Union and BMC Products, with two
exceptions: BMC America refused to recognize the se-
niority dates of BMC Products’ employees and it re-
fused to continue payments into the employees’ pen-
sion fund.2
After negotiation of the new contract, union officials
and representatives of BMC Products met with unit
employees on the morning of Thursday, March 10,
1988.3 The Union told the employees about the im-
pending sale and that the closing would occur the next
day. The employees were told to fill out new employ-
ment applications the following day and to call over
the weekend to find out whether BMC America would
employ them.4
At the meeting, Union Business Agent Rose Alvarez
discussed the new contract and told the employees that
the only changes from the then-existing contract were
with regard to seniority and pension contributions. The
Union also told the employees that BMC America
would phase out the Chicago facility within 3 to 6
months. Rosenia told employees that anyone who
wished to transfer to the new facility in Harvard, Illi-
nois, would be welcome.5
363BMC AMERICA, INC.
1988. Although all the employees were offered the chance to transfer to the
new location in Harvard, Illinois, none of them chose to do so.
As noted above, the judge found that BMC America was a successor to
BMC Products. He also found that because Mike Rosenia continued in his ca-
pacity as employee relations manager for BMC America without interruption,
BMC America acquired the business with actual knowledge of the facts and
events surrounding the alleged unfair labor practices.
6 The judge did not note Alvarez’ response, but Alejandres’ testimony is
uncontradicted.
7 It is undisputed that the ‘‘Labor Department’’ was a reference to the Na-
tional Labor Relations Board.
8 The judge did not note Alejandres’ call to the Board.
Alejandres testified that he had learned the number of the Board’s Chicago
office, in 1987, from an attorney he spoke to when he had had an accident
at the plant and was fired. He said, in connection with that incident, ‘‘The
Union didn’t do anything for me.’’ At the hearing, the General Counsel argued
that incident helped explain why, in the present case, Alejandres went to the
Board instead of further appealing to the Union.
9 The first shift workday ended at 3:30 p.m.
10 The judge did not note the conversations between Alejandres and Patel
or between Patino and Patel. Patel did not testify at the hearing.
11 The personnel office collected all the timecards from the timeclock each
morning.
12 Rosenia offered to call the union business agent to resolve whatever prob-
lems they might have, but received no response to the offer. It is not clear
whether Rosenia made the offer before or after hearing that the employees
were going to the Board.
13 The judge discredited Rosenia’s testimony that no one responded to his
question.
14 The judge did not note Rosenia’s response, but Patino’s testimony was
not specifically contradicted.
15 The judge found that Mundo was a statutory supervisor.
16 Contreros’ wife worked for BMC Products but was not among the group
of employees about to leave work.
17 Garcia spoke to the Board agent on behalf of the employees because he
was the only one fluent in English.
Employee Guadelupe Alejandres asked why BMC
Products had been sold and why the employees had
not received 60 days’ notice of the sale. He also point-
ed out to Alvarez the contractual clause providing for
the continuation of the contract’s terms if the Compa-
ny’s name or ownership changed. Alvarez responded,
‘‘Do what you want, you are a lawyer?’’6 Alejandres
then told Alvarez, ‘‘I am going to the Labor Depart-
ment [to determine whether Respondents are] in the
right.’’7 Alvarez responded, ‘‘Do what you want.’’
During the lunchbreak on the day of the meeting,
Alejandres asked his supervisor, Minish Patel, for per-
mission to go to the ‘‘Labor Department,’’ and Patel
responded, ‘‘You go tomorrow, today it is late.’’ After
work on the same day, Alejandres called the Chicago
office of the Board and asked to speak with someone
who was fluent in Spanish, but was told that there
were no Spanish-speaking employees in the office at
that time.8
On March 11, first-shift employees began work at 7
a.m.9 Alejandres, who worked in the packaging depart-
ment, told another packaging department employee,
Tranquilino Patino, about the previous day’s meeting,
which Patino had not attended. Patino testified that, as
he and Alejandres talked, they ‘‘started seeing that
there was some injustices that the company wanted to
do to us,’’ and decided to try to get more coworkers
‘‘to go and ask the Department of Labor . . . about
the rights that the company had towards us.’’ Patino
spoke with other packaging department employees,
who agreed to go with Alejandres and Patino to the
Board’s offices. He then told Supervisor Patel that he
was getting some workers together to go to the Board.
According to Patino, Patel responded, ‘‘Go ahead. I
don’t care.’’ Patino showed Patel the contract and told
him that he thought ‘‘the company was doing some in-
justice,’’ but Patel did not want to see the contract and
again said, ‘‘Go ahead. I don’t care.’’ Alejandres also
told Patel that he was going to the Board, and Patel
responded, ‘‘Go, I can’t stop you.’’ After talking to
Patel, Patino went to the shipping department and
spoke to other employees, who agreed to go to the
Board.10
Eight employees went to the timeclock to punch out,
but they could not find their timecards.11 They pro-
ceeded to the personnel office, where they encountered
Employee Relations Manager Mike Rosenia and other
management personnel. The employees asked the of-
fice secretary for their timecards, and she told them
that they were still at the timeclock.
As the employees started to return to the timeclock,
Rosenia asked them what they were doing.12 One of
the employees told him that they were going to the
Board.13 After hearing this, Rosenia asked, ‘‘Why are
you going there?’’ The employees did not respond but
moved to the timeclock. According to Patino, Rosenia
‘‘was bothered and asked us what we were going to
do there, and did we want to put him under.’’14
Rosenia raised his voice and said to the group of em-
ployees, ‘‘If you punch your card out, you are gone
from the company. You are out of the company.’’
After the eight employees left the plant, they waited
for employee Santos Contreros, who was supposed to
join them. When Contreros did not appear, Alejandres
returned to the plant door where he found Contreros
with Maintenance Foreman Jim Mundo.15 Mundo
asked Contreros where he was going, and Contreros
replied that he was leaving with the others. Mundo
told Contreros that, if he left, Mundo would discharge
both Contreros and his wife.16 Contreros decided not
to leave, and he returned to work.
The employees went to the Chicago Regional Of-
fice, where they stayed for between 45 and 90 minutes.
They had originally planned to return to work imme-
diately after the visit to the Board, but because
Rosenia had told them they were discharged for leav-
ing work, Garcia filed a charge alleging that he and
the other seven employees had been unlawfully dis-
charged.17 Following the advice of the Board agent,
they went to the union hall to file a grievance. At the
union hall, Business Agent Alvarez told them she be-
lieved management was justified in firing them be-
cause they had walked off the job. Nevertheless, she
filled out grievances for each of the eight employees
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 There is no exception to this finding.
19 The judge rejected the argument that the employees voluntarily quit.
20 Earringhouse Imports, 227 NLRB 1107 (1977), enf. denied sub nom.
Service Employees Local 250 v. NLRB, 600 F.2d 930 (D.C. Cir. 1979).
21 In Ohmite, the Board held that an employer did not violate the Act by
refusing to allow an employee an excused absence to attend a Board hearing.
There was no evidence in that case of improper motivation or union animus
behind the refusal, and the employee, who had not been subpoenaed, did not
demonstrate a real need to attend the hearing.
22 Our dissenting colleague, who would find a real need to go to the Board
during working hours only when the Board offices are closed during employ-
ees’ off-duty hours, refuses to view the facts in context—the need for the em-
ployees to take immediate action, which resulted from their honoring a super-
visor’s request, on March 10, that they go the next day, and their need to re-
turn to work by 11 to fill out new employment applications.
23 We find support for our position in General Nutrition Center, 221 NLRB
850 (1975). In that case, the Board found that the employer violated Sec.
8(a)(4) and (1) by discharging employees for announcing their intention to go
to the Board during working hours. As explained by the dissenting opinion
in Earringhouse Imports, 227 NLRB 1107 (1977), enf. denied sub nom. Serv-
ice Employees Local 250 v. NLRB, 600 F.2d 930 (D.C. Cir. 1979), General
Nutrition relied on two rationales for finding the employees’ conduct to be
protected by the Act. First, the employees’ conduct constituted ‘‘a concerted
action concerning terms and conditions of employment.’’ Second, ‘‘it was the
only practically feasible way for the employees, who were unsophisticated
with respect to the niceties of labor relations and the Board’s operations, to
bring their grievances to the Board and obtain its consideration of their com-
plaints.’’ 227 NLRB at 1114. This analysis of General Nutrition by the
Earringhouse dissent is particularly significant for our purposes because the
Earringhouse dissent provided the basis for Ohmite.
Our dissenting colleague, who also dissented in Ohmite, dismisses the Gen-
eral Nutrition case as inapposite on the ground that the employees there could
have engaged in a protected strike, while the employees here were barred from
striking by a no-strike clause in the collective-bargaining agreement. We find,
however, in agreement with the General Counsel, that the employees’ action
in the instant case did not constitute a strike. See Empire Steel Mfg. Co., 234
NLRB 530, 532 (1978) (defining a strike as conduct intended ‘‘to bring pres-
sure upon an employer to change his ways’’). The employees left work for
the purpose of obtaining employment-related information from the Board, not
for the purpose of pressuring their employer. Therefore, the employees’ con-
certed activity concerning their terms and conditions of employment was not
rendered unprotected by virture of the no-strike clause in the contract, and we
reject our dissenting colleague’s attempt to distinguish General Nutrition on
the basis of a no-strike clause that has no application to the facts of this case.
alleging unjust termination and requesting reinstate-
ment.
After the employees left the plant, management shut
down one of the seven or eight packing lines in the
packaging department and reassigned employees to
help out in the shipping department. The judge found,
however, that the employees’ absence ‘‘did not cause
any serious disruption to BMC Products’ oper-
ations.’’18
The judge found that in discharging the employees,
BMC Products acted pursuant to established company
work rules which provided for immediate discharge of
employees failing to do assigned work.19 Although the
judge found that the employees informed Rosenia that
they were leaving to go to the Board, he also found
that the employees refused to tell Rosenia the nature
of their grievances. The judge apparently believed that
the employees’ failure to discuss the grievances in re-
sponse to Rosenia’s inquiries rendered their resort to
the Board unprotected activity. Accordingly, he found
that the discharges were lawful, and he dismissed the
complaint.
Because this case involves employees’ access to the
Board and its processes, it is controlled by the test ar-
ticulated by the Board in Ohmite Mfg. Co., 290 NLRB
1036 (1988). In Ohmite, the Board addressed the rights
of employees under Section 8(a)(4) of the Act to leave
work to attend a Board hearing. Overruling prece-
dent,20 the Board in Ohmite held that in determining
whether an employer’s refusal to allow employees to
leave work to attend a Board hearing is unlawful, the
burden of proof lies with the General Counsel:
to prove that the employer’s refusal was improp-
erly motivated or that the employees demonstrated
to the employer at the time of their request that
they had a real need to attend the hearing. Only
when the General Counsel has presented prima
facie evidence of either or both of the above will
the burden shift to the employer to either discredit
the General Counsel’s evidence or, as to the latter,
show an overriding business reason for its refusal
to allow the employees to leave work.
Ohmite, supra, 1038.21
Applying the Ohmite test to the facts of this case,
we find that the General Counsel has proved that the
employees had a real need to go to the Board on the
morning of March 11, 1988, and that they dem-
onstrated this need to management. We further find
that the Respondents have not rebutted the General
Counsel’s prima facie case by showing an overriding
business reason for the refusal to excuse the employees
from work.
The eight employees who left work on the morning
of March 11, 1988, to go to the Board were apprehen-
sive because they had learned the previous day that
BMC Products was about to be sold; that they might
lose their jobs; and that, even if hired by the new
owner, they would lose significant benefits. The em-
ployees believed that their collective-bargaining agree-
ment prohibited the changes in their benefits under
these circumstances. The Union, at the March 10, 1988
meeting, failed to alleviate the employees’ concerns.
Later that day, Alejandres contacted the Chicago Re-
gional Office by telephone to ask whether the Re-
spondents’ actions were lawful, but was told there was
no Spanish-speaking agent available. Employee Patino
tried, unsuccessfully, to elicit a response from Super-
visor Patel about a possible contract violation. With
only a few hours remaining before the changes in their
contract terms were to be implemented, and having
failed to obtain answers from either management or the
Union, the eight employees decided to leave work to
speak to a Board agent in person, at a time when they
thought their actions might still have some effect.22
We find, based on these circumstances, that the em-
ployees had a real need to go to the Board at the time
they did.23
365BMC AMERICA, INC.
General Nutrition was also based on the rationale that the employees’ action
was the only practically feasible way for them to bring their grievances to the
attention of the Board. As explained above, a similar finding is warranted here.
24 Given our disposition of the case based on the evidence the judge consid-
ered, we find it unnecessary to pass on the General Counsel’s exception re-
garding the judge’s rejection of a position letter written by Respondents’ attor-
ney.
25 Our dissenting colleague misconstrues our holding. We have not reduced
Ohmite’s ‘‘demonstration’’ requirement. Rather, the record shows that the em-
ployees satisfied Ohmite’s requirement of demonstrating to the Respondent
their need to go to the Board. Employees had voiced their concerns to both
upper management and a supervisor. Under these circumstances, we disagree
with our dissenting colleague that when the employees told Rosenia they were
going to the Board, they acted at their peril because they had failed to commu-
nicate adequately their reasons for going. We would not require employers to
guess theirs employees’ intent, as the dissent suggests, but neither would we
allow employers to escape liability for unlawful conduct by pleading ignorance
where, as here, they had actual knowledge of the employees’ motivation.
26 We leave to compliance questions such as whether filling out an applica-
tion was a prerequisite to receiving an employment offer and whether the
discriminatees would have applied had they not been discharged.
We further find that the employees demonstrated
this need to management. Employee Alejandres raised
employees’ specific concerns to the union business
agent at the March 10 meeting. Rosenia witnessed
Alejandres’ objection to the sale and to the cessation
of employees’ benefits, and, immediately afterward,
heard Alejandres tell Alvarez he was going to the
Board to see if Respondents were ‘‘in the right.’’
Thus, Rosenia was on notice of the employees’ fears
that their contractual rights were in jeopardy—a prob-
lem employees would naturally look to the Board to
remedy. Before leaving on the morning of March 11,
Patino showed Supervisor Patel the contract and told
him he thought employees were being treated unjustly.
Although the employees did not engage in a detailed
conversation with Rosenia about what their concerns
were as they were leaving, they told him they were
going to the Board and had only the previous day
voiced their concerns in his presence. Contrary to the
judge, we believe it is reasonable to find that, under
these circumstances, management was aware of the
employees’ concerns and that they were going to the
Board because of those concerns.24
Finally, we find that the Respondents have not
shown an overriding business reason for discharging
the employees. Only 8 of approximately 100 workers
absented themselves from work on the day of the inci-
dent. Although one line was shut down and a few em-
ployees reassigned, there was no serious disruption to
BMC Products’ operations.25
Accordingly, we find that BMC Products violated
Section 8(a)(4) and (1) by discharging the eight em-
ployees who left work with the stated intention of
going to the Board. In light of our conclusion with re-
spect to the discharges, it follows that BMC Products
also violated Section 8(a)(1) by threatening employee
Contreros and his wife with discharge if Contreros
joined the other employees in going to the Board.
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusion of Law 3 and sub-
stitute the following:
‘‘3. BMC America acquired BMC Products with ac-
tual knowledge of the events surrounding the unfair
labor practices.
‘‘4. By discharging employees Garcia, Alejandres,
Arizaga, Coronado, Patino, Jiminez, Mireles, and
Oceguera for leaving work because they intended to go
to the offices of the National Labor Relations Board,
BMC Products violated Section 8(a)(4) and (1) of the
Act.
‘‘5. By threatening to discharge employee Santos
Contreros and his wife if Contreros left work to go to
the offices of the National Labor Relations Board,
BMC Products violated Section 8(a)(1) of the Act.’’
REMEDY
Having found that Respondent BMC Products has
engaged in certain unfair labor practices, we shall
order it to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the
Act. Because Respondent BMC America is a successor
to BMC Products and acquired BMC Products with ac-
tual knowledge of the events surrounding the unfair
labor practices, we shall hold BMC America jointly
and severally liable with BMC Products to make
whole the discharged employees and to reinstate them,
if appropriate.
We shall order Respondents to make the unlawfully
discharged employees whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against them, from March 11, 1988, the date
they were unlawfully discharged, until the date on
which their respective departments moved to Harvard,
Illinois, 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),
unless Respondents can show that BMC America
would not have offered them continued employment.26
We shall order BMC America to offer the unlaw-
fully discharged employees immediate and full rein-
statement at its Harvard, Illinois facility, unless Re-
spondents can show that they would not have trans-
ferred. In addition, Respondents shall make whole any
employee so reinstated for any loss of earnings and
other benefits, from the date his department was
moved to the Harvard facility, as prescribed in F. W.
Woolworth Co., supra, plus interest as computed in
New Horizons for the Retarded, supra. See Medallion
Kitchens, 277 NLRB 1606 (1986).
In view of the fact that BMC Products is no longer
in business, we shall order it to mail copies of the at-
tached notice to the last known address of each em-
ployee who was in the bargaining unit on March 11,
1988, the date of the sale to BMC America.
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ORDER
A. The National Labor Relations Board orders that
Respondent BMC Products, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees for leaving work because
they intend to go to the offices of the National Labor
Relations Board.
(b) Threatening employees with discharge if they
leave work to go to the offices of the National Labor
Relations Board.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Respondent BMC
America make whole the unlawfully discharged em-
ployees for any loss of earnings and other benefits
from March 11, 1988, until the date on which their re-
spective departments moved to Harvard, Illinois, unless
the Respondents can show that BMC America would
not have offered them continued employment, in the
manner set forth in the remedy section of this decision.
(b) Jointly and severally with Respondent BMC
America make whole any unlawfully discharged em-
ployee who is reinstated at BMC America’s Harvard,
Illinois facility for any loss of earnings and other bene-
fits from the date his department moved to Harvard, Il-
linois, in the manner set forth in the remedy section
of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, wage rate and other records, work
schedules, production reports and data, social security
payment records, timecards, personnel records and re-
ports, and all other records and entries necessary to de-
termine the sums due under this Order.
(d) Mail a copy of the attached notice marked ‘‘Ap-
pendix,’’27 in English and Spanish, to each employee
who was in the bargaining unit at BMC Products on
March 11, 1988. Copies of the notice, on forms pro-
vided by the Regional Director for Region 13, shall be
mailed by BMC Products immediately on receipt
thereof.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. The National Labor Relations Board orders that
Respondent BMC America, Inc., a subsidiary of Can-
non Ball Industries, Inc., Harvard, Illinois, its officers,
agents, successors, and assigns, shall
Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Respondent BMC
Products, Inc. make whole the employees BMC Prod-
ucts unlawfully discharged for any loss of earnings and
other benefits from March 11, 1988, until the date on
which their respective departments moved to Harvard,
Illinois, unless Respondents can show that BMC
America would not have offered them continued em-
ployment, in the manner set forth in the remedy sec-
tion of this decision.
(b) Offer the unlawfully discharged employees im-
mediate and full reinstatement at the Harvard, Illinois
facility, unless Respondents can show that they would
not have transferred, and make whole any employee so
reinstated for any loss of earnings and other benefits
from the date his department moved, in the manner set
forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage rate and other records, work
schedules, production reports and data, social security
payment records, timecards, personnel records and re-
ports, and all other records and entries necessary to de-
termine the sums due under this Order.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
CHAIRMAN STEPHENS, dissenting.
I agree with my colleagues that Ohmite is the appli-
cable precedent, but I do not agree that a proper appli-
cation of the Ohmite test leads to the conclusion that
the Respondent violated the Act by discharging the
eight employees for leaving in the middle of their shift
to go to the Board. Indeed, although I dissented in
Ohmite and would have found a violation there, I
would not find a violation here even under the bal-
ancing test that I favored.
As the majority has explained, to make out a prima
facie case under Ohmite that an employer has violated
the Act by discharging or disciplining employees for
leaving work without permission to go to the Board of-
fices, the General Counsel must prove either that the
employer’s decision was ‘‘improperly motivated’’ or
that ‘‘the employees demonstrated to the employer at
the time of their request that they had a real need to
attend the hearing.’’ My colleagues properly do not at-
tempt to rely on the first basis because there was no
evidence here of unlawful motivation. What this comes
down to is a question of whether ‘‘the employees dem-
onstrated to the employer at the time of their request
that they had a real need’’ (emphasis added) to go to
the Board offices at that particular time.
367BMC AMERICA, INC.
1 Even if the employees had in mind the possibility of filing a charge with
the Board (and thereby initiating an agency proceeding), I still would not find
that the ‘‘real need’’ test is met. If we were to conclude that the test is met
simply by a showing that an employee has a reasonable belief that he or she
may have grounds for filing a charge with the Board over some action to be
implemented in the immediate future, then it is hard to see why this would
not make it permissible for employees to leave work whenever they want to
visit the Board with a view to possibly filing charges over unlawful warnings,
transfers, demotions, wages reductions or other changes in terms and condi-
tions, so long as they fear immediate implementation of the change and their
employer cannot prove that it has an ‘‘overriding business reason’’ to deny
them permission to go at that particular time. I cannot see the justification,
absent evidence that working hours are the only time in which a charge could
possibly be filed, for requiring employers to prove an ‘‘overriding business
reason’’ before they can require that the employee finish the shift before going
to file the charge.
2 Had the employees told the Employer their reasons, it is certainly possible
that some accommodation would have been made for them, and this case
would not now be before us.
The majority misconstrues and misapplies this test
in two main respects. First, its treatment of the ‘‘real
need’’ factor seems totally at odds with the majority’s
treatment of that factor in Ohmite. In Ohmite, the con-
cept of ‘‘need’’ related not to any emotional need of
employees for advice from some authoritative source,
but to the functional requirements of agency proceed-
ings, such as the need to attend a Board hearing as a
witness. There was no Board proceeding in this case
which employees wished to attend and I cannot agree
that the employees’ desire to travel to the Board to
gather information meets the ‘‘read need’’ test.1
Beyond this, I note that there was no showing that
the employees could not have gone to the Board when
their shift ended, at 3:30 p.m., either Thursday, March
10 or Friday, March 11, or for that matter, the follow-
ing week. There was also no demonstrated necessity
for all eight employees to go. Because it appears that
only employee Garcia was proficient in English, he
alone could have carried the employees’ concerns to
the Regional Office and obtained the information or
guidance they sought.
Second, the majority reduces the requirement of
‘‘demonstration’’ of need at the time of the request to
almost nothing. It is undisputed that at the time they
left the plant, the eight employees were not clear in
communicating why they were going to the Board.
They merely stated they were going to the Board, and
then left. In my view, by refusing Employee Relations
Manager Rosenia’s legitimate requests for an expla-
nation, the employees acted at their own peril. This is
especially so in view of the fact that he offered to call
their union representative in an effort to adjust the
problem. Thus, Ohmite’s requirements of clear com-
munication and explanation of why departure at that
time is necessary were not met here.
The majority seems to construe Ohmite as allowing
an inquiry into what employees would have believed
or how they might likely have behaved under these cir-
cumstances. They conclude thal the employees’ con-
cerns about the imminent sale of their company, and
the fact that one employee expressed intention to go to
the Board in a meeting the day before somehow ex-
cuse their failing to satisfy Ohmite’s requirement of ac-
tual communication to the employer of the reasons for
going to the Board. There is nothing in the language
of Ohmite which requires the employer to divine the
employees’ intent or motivation based on past ques-
tions they may have asked or conversation they may
have had with a low-level supervisor. I believe actual
notice to the employer of their reasons is necessary, as
well as a showing of ‘‘real need,’’ and that both of
these must be given to the employer at the time the
employees seek to leave the job.
Even under the test I advocated in my Ohmite dis-
sent—which led me to find a violation when the
Ohmite majority would not—I would not find a viola-
tion under these circumstances. In that case, while I
agreed with the majority that in the absence of any in-
dication of an employee’s need to attend the Board
proceeding, the employer is under no obligation to
show any business reason for denying the employee
permission to do so, I was not willing to find that the
demonstration of the employee’s need be exceptionally
strong before the employer has at least some burden of
explanation. I urged that the inquiry balance the em-
ployee’s need to attend against the employer’s interest
in having him or her remain on the job, and suggested
that any indication that an employee’s presence at a
proceeding might be useful should trigger a burden of
inquiry on the employer’s part to determine if some
reasonable accommodation might be made.
Here, I am unable to find that the employees met
even my lower threshold test, because what they told
their employer as they were leaving the plant failed to
demonstrate any need to go to the Board at that par-
ticular time In my view, the General Counsel’s case
fails at this point. We need not even get to the other
part of the inquiry, that is, what the Employer’s jus-
tification might have been for denying them permis-
sion to leave.2
I am not unsympathetic to employees who face a
radical change in the working conditions and who wish
to do more than consult their union representative by
telephone or wait until the end of their shift to seek
answers from a government agency. I emphasize that
I am not suggesting that employees have no statutory
right to seek information from the Board. I disagree,
however, that this right entails the additional right of
walking off the job for that purpose during working
time over the objection of their supervisor, at least in
circumstances in which it not claimed that Section 7
would protect a walkout to protest the matters that are
the subject of their information seeking.
In this regard, it is noteworthy that counsel for the
General Counsel disclaimed any intent to present the
employees’ action as a protected walkout over work-
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
place grievances as in, for example, NLRB v. Washing-
ton Aluminum Co., 370 U.S. 9 (1962). She doubtless
took this tack because both the Union’s agreement
with the predecessor employer in the present case and
its agreement with the successor contained a no-strike
clause and because no recognized exceptions to no-
strike clauses would appear to apply here, e.g., trigger-
ing serious unfair labor practices, as in Mastro Plastics
v. NLRB, 350 U.S. 270 (1956), or abnormally dan-
gerous working conditions within the meaning of Sec-
tion 502 of the Act.
Because these employees had no right under the Act
to walk off the job in protest of their grievances over
their terms and conditions of employment, I regard
General Nutrition Center, 221 NLRB 850 (1975), as
inapposite, notwithstanding that it was cited in a dis-
sent that provided the rationale for Ohmite. As the ad-
ministrative law judge in General Nutrition pointed out
(id. at 856; footnotes omitted):
[T]he employees could not have been lawfully
discharged if they had merely engaged in a con-
certed withholding of their services—whether or
not at a time convenient to [their employer] in
order to exert economic pressure on [the em-
ployer] to redress their grievances. But, the tech-
nique which they did select—a 2-hour visit to the
NLRB intentionally timed to coincide with the
presence in the store of other personnel who could
operate it—was less disruptive of [the employer’s]
operations than a full-scale strike would have
been.
I also find inapposite Empire Steel Mfg. Co., 234
NLRB 530 (1978), cited by my colleagues for their
conclusion that this is a protected nonstrike walkout. In
Empire, the judge expressly noted that the employee
meeting at issue there, which began during the em-
ployees’ lunch period, had intruded only briefly into
working time. Id. at 532. He contrasted this with the
circumstances in a case involving an away-from-the-
plant meeting taking 1-1/2 hours from production time.
Ibid. (Citation omitted.)
Nevertheless, I would not quibble over whether to
term the employees’ walkout a ‘‘strike.’’ I simply re-
gard it as an unwarranted extension of Ohmite to apply
it in a case in which no pending Board proceeding was
involved and in which employees who have no pro-
tected right to walk out in protest over their griev-
ances, have walked off the job for more than 3 hours
in order to seek information from the Board concern-
ing those same grievances. And, as explained above, I
believe that the majority has applied the particular ele-
ments of the Ohmite test in a way that is totally at
odds with the rationale of that case. I therefore dissent
and would adopt the judge’s recommendation to dis-
miss the complaint.
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.
WE WILL NOT discharge employees for leaving work
because they intend to go to the offices of the National
Labor Relations Board.
WE WILL NOT threaten employees with discharge if
they leave work to go to the offices of the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL jointly and severally with BMC America,
Inc. make whole, with interest, employees Garcia,
Alejandres, Arizaga, Coronado, Patino, Jiminez,
Mireles, and Oceguera for any loss of earnings and
other benefits they suffered by reason of our discrimi-
nation against them, from March 11, 1988, to the date
on which their respective departments moved to the
Harvard, Illinois facility, unless we can show that
BMC America would not have offered them continued
employment.
WE WILL jointly and severally with BMC America,
Inc. make whole any unlawfully discharged employee
who is reinstated (pursuant to the Board’s Order) at
BMC America’s Harvard, Illinois facility for any loss
of earnings and other benefits from the date on which
the reinstated employee’s department moved to the
Harvard facility, with interest.
BMC PRODUCTS, INC.
Emilie F. Fall, Esq., for the General Counsel.
Richard F. Nelson, Esq., of Chicago, Illinois, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On
charges filed on March 11 and April 28, 1988, by Geniro
Garcia, an individual, against BMC Products, Inc. and BMC
America, Inc. (Respondent BMC Products and Respondent
BMC America), the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 13,
issued a complaint dated April 29, 1988, alleging violations
by Respondents of Section 8(a)(4) and (1) and Section 2(6)
and (7) of the National Labor Relations Act (the Act). Re-
spondents, by their answer, denied the commission of any
unfair labor practices.
369BMC AMERICA, INC.
1 The unfair labor practice allegation regarding the alleged threat to
Contreras was added to the complaint at trial. I reject Respondents’ argument
that it is time-barred as the subject matter of that allegation is intimately relat-
ed to the subject matter covered by the original charges filed in this case.
2 The factfindings contained herein are based on a composite of the docu-
mentary and testimonial evidence introduced at trial. Where necessary to do
so, in order to resolve significant testimonial conflict, credibility resolutions
have been set forth, infra.
Pursuant to notice, trial was held before me in Chicago,
Illinois, on February 21 and 22, 1989, at which the General
Counsel and the Respondents were represented by counsel
and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
Thereafter, the parties filed briefs which have been duly con-
sidered.
On the entire record in this case, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Until March 11, 1988, when it sold its business to Re-
spondent BMC America, Respondent BMC Products was a
corporation engaged in the manufacture of recreational vehi-
cle parts and office equipment at its Chicago, Illinois facility.
During the year preceding issuance of the complaint, a rep-
resentative period, Respondent BMC Products, in the course
and conduct of its business operations, sold and shipped from
its Chicago facility products, goods, and materials valued in
excess of $50,000 directly to points located outside the State
of Illinois. In that same time period, it purchased and re-
ceived, at the Chicago facility products, goods, and materials
valued in excess of $50,000 directly from points located out-
side the State. I find that Respondent BMC Products, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Chemical and Allied Product Workers Union, Local No.
20, AFL–CIO (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On February 29, 1988, Respondent BMC Products and Re-
spondent BMC America (incorporated on January 6, 1988,
under the name BMC Acquisition Corp.), entered into an
asset purchase agreement providing for the purchase by
BMC America of the BMC Products business and substan-
tially all the assets owned or used in connection with that
business. The closing occurred on March 11, 1988.
Early on March 11, and prior to the closing, employees
Geniro Garcia, Guadalupe Alejandres, Jamie Arizaga, Cito
Coronado, Tranquilino Patino, Baltazar Jimenez, Eustaquio
Mireles, and Guilibold Oceguera walked off the job and trav-
eled to the offices of the National Labor Relations Board,
Region 13, seeking certain information. As a result of the
walkout, their employment at BMC Products was terminated
and they were not, thereafter, offered jobs by BMC America.
In the instant case, the General Counsel contends that Gar-
cia, Alejandres, Arizaga, Coronado, Patino, Jimenez, Mireles,
and Oceguera were discharged because they stated that they
intended to go to the National Labor Relations Board, and
because they concertedly sought information from the Board
regarding a loss of seniority and pension benefits, in viola-
tion of Section 8(a)(4) and (1) of the Act. Respondents argue
that the employees were not discharged but, rather, that they
voluntarily quit when they walked out during working time
without authorization. Alternatively, Respondents urge, the
employees were not engaged in protected concerted activity,
or activity otherwise protected under the Act, and, therefore,
they were lawfully discharged for walking off the job. Also
at issue is whether Respondents violated Section 8(a)(1) of
the Act by threatening to discharge employee Santos
Contreras, and his wife, if Contreras walked out with the oth-
ers.1
B. Facts2
At the time of the sale, Respondent BMC Products em-
ployed some 100 production and maintenance employees
who were represented by the Union and covered by the terms
of a collective-bargaining contract. That agreement, by its
terms, was effective from June 1, 1987, until May 31, 1990,
and contained, inter alia, provisions governing seniority and
pension contributions, grievance and arbitration provisions,
and a no-strike, no-lockout clause. The agreement also pro-
vided:
In the event that the plant and/or any of its operations
are moved, or the name is changed by any of the own-
ers, this Contract between the parties shall continue in
effect until its expiration date, and all the employees
shall be offered the opportunity to transfer.
By letter dated March 3, 1988, Respondents advised the
Union that BMC America would purchase the ‘‘assets and
business’’ of BMC Products, and that, following closing on
March 11, BMC Products would discontinue any business
activity. The Union was also advised that BMC America
elected not to assume the collective-bargaining agreement.
Following receipt of this letter, the Union met with rep-
resentatives of BMC America and agreed to a contract with
that Respondent. The new agreement generally continued the
terms and conditions of employment established under the
contract between the Union and BMC Products, with two
significant exceptions, namely, BMC America refused to rec-
ognize the seniority dates of the BMC Products employees,
and refused to continue payments into the pension fund. The
contract also contained the following provision:
The Company has acquired certain assets and liabilities
of BMC Products, Inc., which are presently located at
4630 W. Harrison Street, Chicago, Illinois. The Com-
pany intends to transport the equipment and business to
its existing production facility in Harvard, Illinois. Prior
to relocation, the Company desires to operate the busi-
ness at its present location on an interim basis only.
The Company and the Union acknowledge the tem-
porary nature of this operation and the right of the
Company to transfer and relocate all and any part of the
business from its present location to Harvard, Illinois,
at any time and from time-to-time.
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is undisputed that ‘‘the Labor Department,’’ in shop parlance, was a ref-
erence to the National Labor Relations Board.
4 Rosenia had served as the BMC Products manager of employee relations
for some 37 years. He continued in that capacity, without interruption, for
BMC America. He was, at all times material, a statutory supervisor.
5 Mundo had authority to hire and fire employees in his department, and re-
sponsibly to direct them in their work. Accordingly, he was a statutory super-
visor.
After negotiations between the Union and BMC America
were completed, union officials met with the unit employees
on Thursday, March 10, at the facility. BMC Products rep-
resentatives were also present. The employees were advised
of the sale and told that the closing would occur on the next
day, Friday, March 11. They were asked to fill out new em-
ployment applications and to inquire, over the weekend,
about whether or not they would be employed by BMC
America. Union Business Agent Rose Alvarez discussed the
new contract and told the employees that the only changes,
from the then-existing contract, were with regard to seniority
and pension contributions. The Union also advised the em-
ployees that BMC America would, over time, phase out the
Chicago operation. Employee Guadalupe Alejandres objected
to the new contract and argued that, by its terms, the contract
with BMC Products was to remain in effect despite any
change in ownership. Alejandres told Alvarez that ‘‘I am
going to the Labor Department’’ to find out whether or not
Respondents are ‘‘in the right.’’3
On Friday, March 11, the first-shift employees reported for
work at their normal starting time, 7 a.m. By 8:30 a.m., em-
ployees Alejandres and Patino had organized a group of eight
employees, from the packing and shipping departments, who
decided to walk off the job, and go to the offices of the Na-
tional Labor Relations Board, to make inquiry concerning the
sale of the business and the loss of contractual benefits. The
eight employees, Garcia, Alejandres, Arizaga, Coronado,
Patino, Jiminez, Mireles, and Oceguera, proceeded to the
timeclock, near the entrance of the plant, in order to punch
out. When they could not locate their timecards at the clock,
they went to the personnel office where they encountered
Employee Relations Manager Michael Rosenia,4 Shipping
Department Supervisor Steve Steppe, and the office sec-
retary, Blanca Marcias. Plant Manager Nataraj Padmanabhan
was in an open adjoining office. Also in the area was Union
Steward Ruben Gray. The employees asked Marcias for their
timecards and she told them that they were still at the time-
clock.
Rosenia testified that, as the employees started to return to
the timeclock, he, Rosenia, asked them what they were
doing, but he received no response. Rosenia stated that it was
not right for the employees to walk out, and he offered to
call the union business agent to resolve whatever problems
might exist. Again, he received no response. Rosenia then
asked the steward, Gray, what the problem was, but Gray
stated that he did not know. Rosenia further testified that, de-
spite his inquiries, the employees punched out, and left the
facility, without telling him the nature of their grievance, in
violation of established company work rules providing for
immediate discharge for refusal to do assigned work.
Plant Manger Padmanabhan, in his testimony concerning
the March 11 walkout, corroborated Rosenia’s testimony, as-
serting that Rosenia repeatedly asked the employees, in
Spanish and English, why they were leaving, but none of
them would respond.
According to the testimony of employees Garcia, Patino,
and Alejandres, one of the departing employees did tell
Rosenia, in response to his questions, that they were going
to the Department of Labor. Those employees further testi-
fied that Rosenia threatened to discharge any employees who
walked out.
I have generally resolved differences in the testimony con-
cerning the events of March 11, in favor of the testimonial
account of Rosenia, as he exhibited the surest recollection.
However, as none of the witnesses to the March 11 walkout,
appeared to me to be testifying in a deliberately untruthful
manner, and as it is possible, largely, to harmonize their tes-
timony, I find, based on the collective testimony, that the de-
parting employees refused to tell Rosenia what the nature of
their grievance was, or why they were walking out, and re-
fused to accept his offer to call the union business agent in
order to resolve whatever problem might exist. The employ-
ees did tell Rosenia that they were going to the offices of
the National Labor Relations Board and, before they left,
Rosenia stated that, under company rules, employees who
engaged in an unauthorized walkout would be discharged. I
further find, based on the uncontradicted testimony of
Rosenia, that, as a result of the walkout, one of the seven
or eight packing lines was shut down and it was necessary
to transfer employees, from elsewhere in the plant, to help
out in the shipping department.
After the eight employees left the plant, they waited for
employee Santos Contreras, who was to join them. When
Contreras did not appear, Alejandres returned to the door of
the plant where he encountered Contreras and Maintenance
Foreman Jim Mundo.5 A conversation between Contreras and
Mundo took place and, as Contreras speaks Spanish, only,
and Mundo speaks English, only, Alejandres acted as trans-
lator. According to the credited, uncontradicted testimony of
Alejandres, Mundo asked Contreras where he was going, and
Contreras replied that he was leaving with the others. Mundo
told Contreras that, if he left, Mundo would discharge both
Contreras and his wife. Contreras decided not to leave the
plant, and he returned to work.
The eight employees traveled to the Chicago office of the
Board and spoke to a Board agent. Garcia filed a charge al-
leging that the eight employees had been unlawfully dis-
charged. On advice of the Board agent, they then went to the
union hall to file a grievance.
On arrival between 10:30 and 11:30 a.m., the employees
met with Business Agent Rose Alvarez. They told Alvarez,
according to her testimony, that they had walked off the job,
and gone to the Labor Board, ‘‘because they didn’t agree
with the Company, the selling of the company.’’ They fur-
ther advised her that Rosenia had attempted to disuade them
from walking out, telling them:
If you walk out, you will be terminated. We are not fir-
ing you, you are walking out. Why don’t you call your
union, call the business agent, talk to her. Don’t do this
to yourself.
After telling the employees that they were not within their
rights to walk off the job, Alvarez completed grievance
371BMC AMERICA, INC.
6 Alvarez further testified that, while at the union hall, the employees, speak-
ing through Alejandres, stated that they did not want to return to work and
desired, only, to receive their severance and vacation pay. Garcia, Patino, and
Alejandres all testified that they went to the union hall, and filed grievances,
because they wanted to get their jobs back. In view of the nature of the griev-
ances filed, the testimony of the three employees is more plausible, and their
testimony is credited in this regard.
7 Respondents urge that deference be given to the grievance decisions. Re-
spondents have not expressed a willingness to proceed to arbitration.
8 Houston Chronicle Publishing Co., 227 NLRB 1829 (1977).
9 See Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).
10 Cumberland Nursing & Convalescent Center, 263 NLRB 428 (1982).
11 See General Nutrition Center, 221 NLRB 850 (1975).
12 See Carbet Corp., 191 NLRB 892 (1971).
forms on their behalf, protesting the terminations and re-
questing reinstatement of the eight individuals.6
The employees returned to the plant at noon, to pick up
their paychecks and personal belongings. According to the
uncontradicted testimony of Alejandres, he spoke to Plant
Manger Padmanabhan at that time, and asked that the em-
ployees be reinstated. The request was denied.
By letters dated March 28, 1988, Garcia, Alejandres,
Arizaga, Coronado, Patino, Jiminez, Mireles, and Oceguera
were advised by the Union that BMC Products had denied
their grievances as, in the Company’s view, the employees
had voluntarily terminated their employment by walking out.
The Union further advised the employees that the Union be-
lieved that ‘‘the Company acted within their rights.’’ The
Union did not further pursue the grievances, nor was it asked
to do so by any of the affected employees.7
Following the March 11, closing on the asset purchase
agreement, Respondent BMC America, without interruption,
continued the same business, at the same location, as thereto-
fore conducted by Respondent BMC Products. All the pro-
duction and maintenance employees hired by BMC America
were former employees of BMC Products and, in all, BMC
America hired some 90 percent of the former BMC Products
work force. BMC America utilized the same supplies and
machinery, to manufacture the same products, which were
sold, substantially, to the same customers. The BMC Amer-
ica employees performed the same type of work as they had
while employed by BMC Products, and they functioned
under the same supervisors.
Beginning in June 1988, BMC America gradually shut
down the Chicago facility, and transferred operations to Har-
vard, Illinois. The transfer was accomplished on a depart-
ment-by-department basis. By October 20, the move was
complete, and the Chicago facility, was entirely phased out.
All the bargaining unit employees were offered the oppor-
tunity to transfer to Harvard. None of them chose to do so.
C. Conclusions
With respect to Respondents’ argument that deference
should be given to the grievance decisions, it is sufficient to
state that the issues in this case concern access to the Board
and, thus, under Board law, deferral is inappropriate. On that
basis alone, I reject Respondents’ contention in this regard.8
I also conclude that Respondent BMC America is the suc-
cessor to Respondent BMC Products. Thus, beginning March
11, 1988, and for some months thereafter, BMC America,
without interruption, continued the same business, at the
same location, theretofore run by BMC Products. It produced
the same products, using the same machinery, and did busi-
ness in the same market. All the BMC America unit employ-
ees were former employees of BMC Products and, in all,
BMC America hired some 90 percent of the former BMC
Products work force. Those employees continued to do the
same jobs, in the same departments, under the same super-
visors.9
The discharges of the eight alleged discriminatees were ef-
fectuated by a high level supervisor, Michael Rosenia, on
March 11, 1988. Rosenia acted in his capacity as employee
relations manager for BMC Products. Later in the day, at
closing, Rosenia assumed the same position for BMC Amer-
ica. Thus, BMC America acquired the business with actual
knowledge of the facts surrounding the alleged unfair labor
practices.10
Respondents’ contention that the eight individuals who en-
gaged in the walkout were not discharged, but, rather, volun-
tarily quit, is entirely at odds with the record evidence. How-
ever, Respondents’ alternative argument, that, in discharing
the eight employees who engaged in the walkout, BMC
Products acted pursuant to established company work rules,
and without discriminatory intent, is unchallenged. The prin-
cipal issue in this case is whether the employees who walked
off the job, to go to the National Labor Relations Board,
were engaged in an activity protected by the Act. If so,
whether their right to engage in that activity outweighed
BMC Products’ legitimate interest in maintaining normal
production and reasonable order at its plant.11 In this latter
connection, I note the lack of record evidence that the walk-
out caused any serious disruption to the BMC Products oper-
ations.
The alleged discriminatees in this case banded together
and walked off the job, without permission, to go to the of-
fices of the National Labor Relations Board, because they
opposed the sale of the business and opposed the action of
their union in concluding a new collective-bargaining agree-
ment with BMC America, with a resultant loss of benefits.
At no time did they communicate the nature of their griev-
ance to Rosenia or any other responsible official of BMC
Products. Indeed, despite Rosenia’s repeated inquiries, at the
time of the walkout, the employees refused to tell him what
the nature of their grievances were, or why they were walk-
ing out. In declining his offer to call the union business
agent, the departing employees informed Rosenia, only, that
they were going to the National Labor Relations Board.
As the employees who participated in the walkout refused
to bring the nature of their grievances to the attention of
management, they were not engaged in protected concerted
activity or activity otherwise protected under the Act.12 Ac-
cordingly, the discharges of those individuals did not con-
travene statutory proscriptions. Further, and in light of my
conclusions with respect to the walkout, it follows that BMC
Products did not violate the Act by threatening to discharge
employee Contreras and his wife if Contreras joined in the
unprotected walkout.
CONCLUSIONS OF LAW
1. Respondent BMC Products, Inc., and its successor, Re-
spondent BMC America, Inc., a subsidiary of Cannon Ball
Industries, Inc., are employers engaged in commerce, and in
operations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
2. Chemical and Allied Product Workers Union, Local No.
22, AFL–CIO is a labor organization wihtin the meaning of
Section 2(5) of the Act.
3. Respondents have not violated the Act as alleged in the
complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The complaint is dismissed.