Diversified Case Company, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 873 (N.L.R.B. 1982)

DIVERSIFIED CASE COMPANY, INC.
Diversified Case Company, Inc. and Local 345, In-
ternational Ladies' Garment Workers' Union.
Case 3-CA-10230
August 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On March 3, 1982, and April 2, 1982, Adminis-
trative Law Judge Joel A. Harmatz issued the at-
tached Decision and Supplemental Amended Deci-
sion, respectively, in this proceeding. Thereafter,
the General Counsel, the Charging Party, and Re-
spondent filed exceptions and supporting briefs,
and the Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decisions in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge as modified herein and to adopt his recom-
mended Order, as modified herein.
The Administrative Law Judge concluded that
Respondent violated Section 8(a)(1) of the Act by
terminating employees William and Robert Fowler
because they engaged in activities protected by
Section 7 of the Act. We agree with this conclu-
sion and the rationale therefor as set forth in the
Administrative Law Judge's Decision and Supple-
mental Amended Decision. We disagree, however,
with the Administrative Law Judge's further con-
clusion that Respondent did not further violate the
Act by terminating employee Mark Lamb for en-
gaging in protected activities.
Respondent employed six employees in the
"woodshop" of its customized packing plant.2
Their immediate supervisor was Catlin. Three of
these employees were the alleged discriminatees-
brothers Robert and William Fowler and Mark
Lamb. The Fowlers and Lamb were allegedly ter-
minated on December 12, 1980.
Prior to December 12, 1980, all of the employees
in the woodshop had complained to Catlin about
the cold conditions in the woodshop and the
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 At the time of these events the employees were unrepresented.
263 NLRB No. 119
amounts of their paychecks. 3 About a week before
the terminations, Bill Fowler circulated a petition
protesting the pay system.
On December 12, the extreme cold in the wood-
shop was unabated. The employees complained to
Catlin and threatened to go home if the work area
did not warm up by noon. Additionally, Friday,
December 12, was payday. When the Fowler
brothers received their checks they felt that they
had been shortchanged. Two other employees,
Usyk and Hall, also complained that they had been
unjustifiably charged with "make-up."
Prior to lunch, some of the employees including
Lamb and the Fowlers told Catlin that because of
the cold and the errors in their paychecks they
would be going home. The Fowlers said they
would return the next day for the Saturday over-
time for which they had been scheduled. Catlin
warned the employees that if they did not return
from lunch they would probably be discharged.
At noon, all the workshop employees punched
out for lunch. They cashed their checks and dis-
cussed their complaints concerning Respondent.
The Fowlers and Lamb decided not to return to
work after lunch. At some time on December 12,
"employee status reports" were completed on the
Fowlers and Lamb. The reports each said:
"12/12/80 walked out 12:00 didn't like make-up on
payck. (assumed quit)."
The next day, Saturday, the Fowlers reported
for work at 7 a.m. Their timecards along with
Lamb's timecard were missing from the rack. The
Fowlers confronted Catlin who indicated that he
"guessed" they were "fired." Subsequently, Deni-
son, the plant manager, told the Fowlers that they
were fired and asked, "[H]aven't we been good
enough to you people?" William Fowler showed
Denison his paycheck and said, "I . . . guess not.
If you don't even make minimum wage in Amer-
ica, something's gotta [sic] be wrong." Then the
Fowlers left. On their way home, the Fowlers
stopped at Lamb's house and told him that his
timecard was not in its slot and that Catlin had told
the Fowlers that all three employees had been
fired.4
As noted, the Administrative Law Judge cor-
rectly concluded that Respondent unlawfully dis-
charged the Fowlers for engaging in protected
concerted activity. While the Administrative Law
' Respondent's employees received the minimum wage, unless they ex-
ceeded Respondent's production standards, in which case they earned
"incentive pay." If they produced below Respondent's standards, they
were charged make-up which reduced, concomitantly, future incentive
pay. The employees claimed that they were wrongly being charged with
make-up.
4 Neither Catlin nor Lamb testified at the hearing. Lamb was serving
in the United States Armed Forces in Korea at the time of the hearing.
873
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge found that Respondent unlawfully dis-
charged the Fowlers, however, he concluded that,
although Respondent conducted itself in an identi-
cal fashion with regard to all three alleged discri-
minatees, Lamb was not unlawfully discharged.
The Administrative Law Judge distinguished
Lamb's situation because, while the Fowlers
showed their intent to return to Respondent's em-
ployment by reporting for work on Saturday, there
is no evidence that Lamb ever attempted to return
to work. The Administrative Law Judge concluded
that, since the record did not affirmatively establish
whether, in failing to return to work on the after-
noon of December 12, 1980, Lamb intended to
engage in a protected walkout or to sever perma-
nently his employment relationship with Respond-
ent, Respondent could not be found to have unlaw-
fully discharged him.
We note at the outset that the record establishes
that Lamb was among those who protested Re-
spondent's pay practices and the cold in the wood-
shop and among those who told Supervisor Catlin
that they would go home Friday afternoon if the
woodshop did not become warmer. Concededly, as
the Administrative Law Judge stated, Robert
Fowler testified that, although Mark Lamb was
present when the employees told Catlin they
would be going home Friday afternoon because of
the cold and the asserted paycheck problem, he
was "off to the side." The Administrative Law
Judge felt that this remark by Fowler cast some
doubt on Lamb's intentions in leaving work that
day. However, this remark only implies, at best,
that Lamb was not a leading spokesman for the
group since Robert Fowler also testified that
Lamb, in concert with the Fowlers and another
employee, Usyk,6 told Catlin that he was going
home because of the cold and the paychecks.
Indeed, Respondent stipulated that the conduct en-
gaged in by the employees on the afternoon of
Friday, December 12, "was concerted." Thus, we
can find nothing in the record that would prompt
the suspicion that Lamb's intentions were any dif-
ferent from those of the Fowlers.
Nor did Respondent treat Lamb any differently
from the other employees who walked out. Thus,
Respondent also stipulated that "the events of De-
cember 12th, caused the termination, the end of
employment of the three individuals involved."
Additionally, Respondent stipulated that Catlin
told the employees who did not walk out on
Friday afternoon that the three employees who
did, the Fowlers and Lamb, "would probably be
fired. If they didn't come back in after lunch [sic]."
f At lunchtime, Usyk decided to go back to work that afternoon be-
cause he was afraid of being fired.
Sometime on Friday Respondent made identical
notations on status reports for all three employees.
Further, the timecards of all three employees had
been pulled by the time the Fowlers arrived for
work at 7 a.m. on Saturday, December 13.
Respondent concedes in its brief to the Board
that, when the Fowlers reported to work on De-
cember 13, "the Company had already treated their
positions as terminated . . . ." (Emphasis supplied,
see "Exceptions for Respondent Diversified Case
Company," p. 26). It is clear then that Respondent
intended to fire all three employees, and had done
so before work commenced on Saturday. Thus,
having terminated all three employees in the same
fashion, Respondent cannot now argue that Lamb
was not terminated because, although he admitted-
ly acted in concert with the Fowlers, he did not
separately and explicitly state his intentions when
he walked out.
It may be argued that the lack of evidence in the
record of any attempt by Lamb to report for work
is probative of his lack of intention, when he left
on Friday, of ever returning. However, this would
be an unreasonable assumption. Again, we note
that when the Fowlers arrived on Saturday they
saw their timecards were missing and were told
they were fired. Lamb had engaged in the same
conduct and his card was also missing. Naturally,
as Respondent should have anticipated, the Fowl-
ers reported to Lamb, who lived in the same vil-
lage that they did, that he had been fired. Under
the circumstances Lamb could reasonably have as-
sumed that his return to work on the next day he
was scheduled to work would have been a futile
act, particularly since Catlin had predicted that the
employees would be fired if they walked out. Nor
would Lamb's return to work on Monday 6 have
altered what Respondent had already accomplished
by Saturday morning.7
In view of all the foregoing, we find that Mark
Lamb was unlawfully discharged by Respondent
because he engaged in activities protected under
Section 7 of the National Labor Relations Act. Ac-
cordingly, we conclude that Respondent commit-
ted an additional violation of Section 8(a)(1) of the
s There is no evidence that Lamb was scheduled to perform overtime
work on Saturday.
I There is no indication that Respondent might have had a change of
heart by the following Monday. In fact, the opposite appears to be the
case for Respondent argued in the hearing and in its post-hearing brief to
the Administrative Law Judge that it "properly exercised its reserved
managerial right to defend against unprotected employee activity by
treating the employment of the alleged discriminatees as terminated by
reason of their decision to participate in an illegal, intermittent work
stoppage." Respondent made no distinction between the Fowlers and
Lamb.
874
DIVERSIFIED CASE COMPANY, INC.
Act by discharging Lamb, and we shall modify the
recommended Order accordingly. 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Diversified Case Company, Inc., Whitesboro, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Robert Fowler and William Fowler
immediate reinstatement to their former positions
or, if not available, to substantially equivalent posi-
tions, without loss of seniority or other benefits and
privileges, and make them whole for any earnings
lost by reason of the discrimination against them in
the manner set forth in the section of this Decision
entitled 'The Remedy.' In addition, with respect to
Mark Lamb, Respondent shall notify Lamb by reg-
istered letter addressed to his last known address
that the Respondent will afford him an opportunity
to apply for reinstatement within 90 days after his
discharge from the Armed Forces, without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may
have suffered because of Respondent's discrimina-
tion against him by payment to him of a sum of
money equal to the amount he would normally
have earned as wages between the date of his dis-
charge and the date when he entered the Armed
Forces, and between a date 5 days after his timely
application for reinstatement and the date of the
offer of reinstatement by Respondent, less his net
earnings during these periods. Respondent is or-
dered to pay Mark Lamb immediately that portion
of his net backpay accumulated between the date
of his discriminatory discharge and the date he en-
a We do not award backpay to the three employees involved for
Friday, December 12, 1980, since they voluntarily absented themselves
from work. We award backpay to the Fowlers beginning Saturday. De-
cember 13, 1980, when they were discharged, and for Lamb beginning on
Monday, December 15, 1980. On these circumstances we agree that it
would have been futile for Lamb to attempt to return to work.
We shall order that Respondent notify Lamb of his right to apply for
reinstatement within 90 days after his discharge from the Armed Forces
and that he be awarded backpay from the date of his discharge until the
date he was inducted into the Armed Forces and from a date 5 days after
he applies for reinstatement on his return from the service until the date
of Respondent's offer of reinstatement. Respondent shall also be ordered
to pay Lamb immediately that portion of his net backpay accumulated
between the date of his discriminatory discharge and the date he entered
the Armed Forces, without awaiting a final determination of the full
amount of his award. See, e.g., Modern Motor Express, Inc., 129 NLRB
1433 (1961), and Alamo Express, Inc., and Alamo Cartage Company, 127
NLRB 1204 (1960).
tered into the Armed Forces, without awaiting a
final determination of the full amount of the award.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT discourage employees from
engaging in activity protected by Section 7 of
the National Labor Relations Act by discharg-
ing them or in any other manner discriminat-
ing against them with respect to their wages,
hours, or tenure of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights set forth
above.
WE WILL immediately offer reinstatement to
Robert Fowler and William Fowler to their
former positions or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or any
other rights or privileges previously enjoyed,
and WE WILL make them whole for any loss of
earnings they may have sustained by reason of
our discrimination against them, with interest.
WE WILL also make whole Mark Lamb for
any loss of earnings he may have suffered by
reason of our discrimination against him, plus
interest, and we shall notify him of his right to
apply for reinstatement within 90 days after his
discharge from the Armed Forces.
DIVERSIFIED CASE COMPANY, INC.
875
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard in Utica, New York, on December
3, 1981, upon an original unfair labor practice charge
filed on January 29, 1981, and a complaint which issued
on March 4, 1981. Said complaint alleged that Respond-
ent violated Section 8(a)(l) of the Act by, on December
13, 1980, terminating, and thereafter refusing to reinstate,
employees William "Bill" Fowler, Robert "Alf" Fowler,
and Mark Lamb because they engaged in activity pro-
tected by the Act. In its duly filed answer, Respondent
denied that any unfair labor practices were committed.
Thereafter, briefs were filed on behalf of the General
Counsel and the Charging Party.
Upon the entire record in this proceeding, including
my direct, personal observation of the witnesses while
testifying as well as their demeanor, and upon considera-
tion of the post-hearing briefs, I hereby find as follows:
FINDINGS OF FACT
I. JURISDICTION
Diversified Case Company, Inc., herein called Re-
spondent, is a New York corporation, with a place of
business in Whitesboro, New York, from which it is en-
gaged in the manufacture, distribution, and sale of cus-
tomized packing cases and related products. During the
12-month period preceding issuance of the complaint, a
representative period, Respondent, in the course of said
operations, purchased goods, materials, and services
valued in excess of $50,000, which were shipped directly
from States of the United States other than the State of
New York.
The complaint alleges, Respondent at the hearing ad-
mitted, and I find that Respondent is now, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent at the hearing ad-
mitted, and it is found that Local 345, International
Ladies' Garment Workers' Union, herein called the
Union, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
Il. THE ALLEGED UNFAIR LABOR PRACTICES
This case raises the question of whether Respondent
violated Section 8(a)(1) through its alleged termination of
three employees following their quitting of work in con-
nection with what they and other employees perceived
to be adverse working conditions. See, e.g., N.L.R.B. v.
Washington Aluminum Co., Inc., 370 U.S. 9 (1962).
Respondent is engaged in the manufacture of custom-
ized packaging cases. At the time of the events here in
controversy, its employees were not represented by a
labor organization. The alleged discriminatees, Robert
Fowler, William Fowler, and Mark Lamb, were among
the six employees assigned to Respondent's woodshop.
Don Catlin was their immediate supervisor.
The last day worked by the alleged discriminatees was
Friday, December 12, 1980.1 Prior thereto, woodshop
employees had complained to Catlin concerning the
amount of their paychecks and Respondent's method of
compensation. Indeed, about a week before the termina-
tions, a petition was prepared and circulated by Bill
Fowler protesting Respondent's incentive system. After
the document was signed by all woodshop employees,
Fowler placed it in the "suggestion box" made available
to employees by Respondent. It also appears that the
week preceding December 12 was cold and a lack of
adequate heat in their work area provoked all six wood-
shop employees to register complaints with Catlin con-
cerning the low temperatures during that period.
It does not appear from the credible proof that, by De-
cember 12, the cold conditions in the woodshop had
abated. According to credited testimony, that morning,
frost was evident on the machines, glue would not stick
to the boxes, and employees wore gloves, coats, hats,
and boots.2 Those assigned to the woodshop again com-
plained to Catlin about the cold, threatening to go home
if their work area did not warm up by noon. Catlin re-
sponded by indicating that management was concerned
and had considered the possibility that employees might
be allowed to go home at noon because of the lack of
heat. He urged them to bear with the situation because a
representative of a customer, the Kodak Company, was
to visit the plant that day.3
December 12 was also payday. At 11 a.m., Catlin dis-
tributed the paychecks. The Fowlers felt that their pay-
checks were discrepant. Thus, Robert Fowler testified
that he was wrongly charged with $40 makeup.4 Bill
Fowler, upon receiving his check, concluded that it was
short, and that his earnings for the week were less than
the minimum wage.
Before lunch, the Fowlers informed Catlin that, be-
cause of the cold and the errors in their checks, they
would go home for the afternoon and return the next
day. Catlin warned that, if they did not return from
lunch, they would probably be discharged. At noon, all
Unless otherwise indicated, all dates refer to 1980.
Respondent's president, John 1. Fitzsimmons, Sr., testified that he
would have passed through the woodshop on three occasions on Decem-
ber 12. It was the sense of his testimony that employees in that depart-
ment were not so cold as their testimony herein suggests. In the circum-
stances, I am inclined to believe the testimony of Robert and William
Fowler, as corroborated by Robert Hall, an incumbent employee at the
time of the hearing. The testimony of the latter is logically consistent
with other undenied testimony and was preferred over the vagaries retlat-
ed by Fitzaimmons.
I Catlin was not called to refute the General Counsel's evidence in this
regard. I credit the latter.
4 Respondent's employees are compensated on an incentive basis. They
earn at the Federal minimum wage if they do not exceed relevant pro-
duction standards. And when producing at levels below such standards,
they are charged with makeup. According to the credited testimony of
the Fowlers, makeup prejudices the employee's future opportunities to
earn incentive pay, for future incentive earnings would be reduced by
past makeup charges. This interpretation is not refuted by Respondent's
evidence, be it parole testimony or documentation. (See Resp. Exh. I.)
' According to the testimony of Bob Fowler, woodshop employees
Andy Usyk and Bob Hall also complained that their checks held them
accountable for unjustified makeup.
876
DIVERSIFIED CASE COMPANY, INC.
woodshop employees punched out to go to lunch. They
cashed their checks and discussed the matter. The Fowl-
ers and Mark Lamb decided not to return after lunch. At
no time thereafter did either of the three work for Re-
spondent. It is significant that at some time on December
12 "employee status reports" were completed on Robert
Fowler, William Fowler, and Mark Lamb. Each bore the
following notation: "12/12/80 walked out 12:00 didn't
like make-up on payck. (Assumed quit)."
On Saturday, December 13, Bill and Bob Fowler re-
ported for work at 7 a.m.6 Their timecards were not in
the rack. Ultimately, they reported to their work area,
where they confronted Catlin who indicated that he
"guessed" that the Fowlers had been "fired." At this
point, Plant Manager Gordon Dennison appeared. Bill
Fowler addressed Dennison concerning the amount of
his check whereupon the latter inquired as to whether
the Company had not been "good enough" to him.
Fowler replied, "I guess not . . . if you can't even make
minimum wage in America something's got to be
wrong." Dennison then told the men, "you're fired get
your stuff and go."
Based on the foregoing, it is clear beyond peradven-
ture that Respondent on December 13, on direction of
Plant Manager Dennison, precluded the Fowlers from
returning to their jobs solely because they participated in
a half day strike in protest of Respondent's wage and pay
practices and cold conditions in their work area.7 Con-
sistent with the positions advanced by the General Coun-
sel and the Charging Party, well-established statutory
policy confirms prima facie that Respondent thereby vio-
lated Section 8(a)(1).8 As there is no showing on behalf
of Respondent that the Fowlers were permanently re-
placed prior to their December 13 offer to return to
work, or that they manifested disloyalty or other con-
duct transcending the protective ambit of Section 7, the
violations alleged have been substantiated as to the
Fowlers. I so find.
Entirely different considerations come into play in the
case of Mark Lamb. Lamb did not appear as a witness.
According to representation made by counsel for the
General Counsel, Lamb, sometime after December 12,
enlisted in the U.S. Army and at the time of the hearing
was on active duty in Korea. In his case there is no
direct proof that he, like the Fowlers, possessed an inten-
tion of ever returning to work after December 12. In
other words, there is no direct primary evidence of a
probative nature that Lamb left work on December 12 to
participate in temporary protest as distinguished from a
privately held desire to permanently sever his employ-
ment relationship with Respondent. Thus, Lamb did not
report to work on December 13, and, insofar as this
record discloses, had no further communication with Re-
spondent. It is true that an employer may becloud a
* Mike Lamb did not report for work that day. The record does not
indicate why.
As shall be seen, the evidence as to the intention of Mark Lamb con-
cerning the walkout is less than clear. William Fowler testified that a part
of his reason for walking out was the discharge of coworker, Pete Good-
man. This was not shown to be among the reasons communicated to
management, however.
* See N.LR.B. v. Washington Aluminum Ca, supra,' Go-Lightly Foot-
wear, Inc., 251 NLRB 42, 44-45 (1980).
striker's obligation to offer to return to work by creating
an aura of futility through the discharge of other similar-
ly situated strikers. Here, however, the defect in the
General Counsel's case is more fundamental. For the
question presented is whether Lamb was situated similar-
ly to the strikers as having in fact engaged in any activi-
ty protected by Section 7, a matter which must be an-
swered affirmatively if the initial burden of the General
Counsel is deemed to be satisfied. As the record now
stands, one might only speculate that Lamb ever intended
to return to work, a fact which only Lamb himself could
clarify. Although it might be said that ambiguities ought
be resolved against the perpetrator of unfair labor prac-
tices, here the existence of such unlawful conduct is re-
duced to the conjectural by the absence of clear evi-
dence. Indeed, the need for caution is signaled by the
suggestion in Robert Fowler's testimony that Lamb may
have been less involved with the Fowlers than aspects of
the General Counsel's secondary evidence implies. Thus,
cross-examination of Fowler, as to the final conversation
with Catlin on December 12, produced the following
colloquy:
MR. POLLACK: Where was Mark Lamb?
MR. R. FOWLER: He was there, but he was off to
the side.
MR. POLLACK: When you say he was there, was
he part of the conversation?
MR. R. FOWLER: Well Mark, if you knew him,
it's hard to say. He could be and couldn't be some-
times.
On balance the very adversities that might provoke a
protected walkout might also provide the impetus for an
employee's decision to permanently sever his employ-
ment relationship. Yet, participation in the former falls
within, while the latter is totally alien to the remedial
province of the Board. The General Counsel has failed
to reconcile Lamb's status in this regard, and, according-
ly, I shall dismiss the allegation that Respondent violated
Section 8(a)(l) in his case.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by,
on December 13, 1980, terminating its employees Wil-
liam Fowler and Robert Fowler because they engaged in
activity protected by Section 7 of the Act.
4. Respondent did not violate Section 8(a)(1) of the
Act in the treatment accorded Mark Lamb.
5. The unfair labor practices set forth in paragraph 3
above are unfair labor practices having an affect upon
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it
877
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Having unlawfully terminated the employment of
Robert and William Fowler on December 13, 1980, it
shall be recommended that Respondent offer them imme-
diate reinstatement to their former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole for earnings lost by reason
of the discrimination against them by payment of a sum
of money equal to that which they normally would have
earned from December 13, 1980, to the date of a valid
offer of reinstatement, less net interim earnings during
that period. Backpay shall be computed on a quarterly
basis in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest as prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).9
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER '
The Respondent, Diversified Case Company, Inc.,
Whitesboro, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging employees from engaging in activity
protected by Section 7 of the Act by discharging, or in
any other manner discriminating against, employees with
respect to their wages, hours, or tenure of employment.
(b) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the purposes of the Act:
(a) Offer Robert Fowler and William Fowler immedi-
ate reinstatement to their former positions or, if not
available, to substantially equivalent positions, without
loss of seniority or other benefits and privileges, and
make them whole for any earnings lost by reason of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze and determine the amount
of backpay due under the terms of this Order.
(c) Post at its facility in Whitesboro, New York, copies
of the attached notice marked "Appendix."" Copies of
g See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
10 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
i In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
said notice, on forms provided by the Regional Director
for Region 3, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
SUPPLEMENTAL AMENDED DECISION
JOEL A. HARMATZ, Administrative Law Judge: On
March 3, 1982, 1 issued a Decision in the above-entitled
proceeding. Prior thereto, Respondent, on a timely basis,
filed a post-hearing brief which, through apparent inad-
vertence, was neither docketed in the Division of Judges
nor received for consideration. Thereafter, by Order of
the National Labor Relations Board dated March 19,
1982, said proceeding was remanded to me for the pur-
pose of giving consideration to Respondent [sic] brief,
and for reconsideration of my Decision in view of said
brief." Accordingly, pursuant to the remand and the
entire record in this proceeding, the Decision heretofore
issued on March 3, 1982, has been reconsidered in the
light of Respondent's post-hearing brief, and is amended
in the following particulars:
1. Delete footnote 2, and renumber the following foot-
notes consecutively.
2. Insert the following as an addition to the newly des-
ignated footnote 6.
Respondent contends that the assertion by the alleged discrimina-
tees that cold conditions contributed to the walkout was lacking in
rational foundation and pretextual. This contention must be
weighed in the light of the declaration by the Supreme Court that
"the reasonableness of workers' decisions to engage in concerted
activity is irrelevant .... " N.LR.B. v. Washington Aluminum
Corp., 370 U.S. 9, 16. In any event, clear testimony adduced in
support of the complaint established that woodshop employees on
the day of and preceding the walkout repeatedly complained of
the cold to their foreman. Yet, Respondent, for reasons undisclosed
on the record, declined to call Foreman Donald Catlin. Instead,
Respondent elected to proceed on the basis of a less direct line of
proof. Thus, Respondent points to a temperature chart prepared on
December 15, which shows that it was 60 degrees in the wood-
shop area that day. Respondent next points to testimony of its
president, John J. Fitzsimmons, Sr., that he had no knowledge of
any repairs made between December 12 and 15 and maintenance
man Joseph Zylas' work records which do not reflect that he
made repairs during that period. From this I am asked to spurn all
other possibilities, to reject the direct evidence offered by the Gen-
eral Counsel, and to deduce that on December 12 temperatures in
the woodshop could not have fallen below comfortable levels. I
decline. Zylas, who prepared said documents, impressed me as an
unreliable witness, who lacked independent recollection as to just
what he did between December 12 and 15. Furthermore, his testi-
mony as to what should have gone into his personal work records
during that period lacked certainty. The clear, uncontradicted tes-
timony of the Fowlers as corroborated by Robert Hall, an incum-
bent employee at the time of the hearing, was far more convincing.
The General Counsel's evidence is also preferred over the implica-
tion in further assertions by Fitzsimmons that he would have
passed through the woodshop on three occasions on December 12
and that conditions in that department were not so cold as employ-
ees herein suggest.
878
DIVERSIFIED CASE COMPANY, INC.
3. Delete the sentence in section III, paragraph 9,
which reads:
Consistent with the positions advanced by the Gen-
eral Counsel and the Charging Party, well-estab-
lished statutory policy confirms prima facie that Re-
spondent thereby violated Section 8(a)(l).
Substitute therefor the following:
Respondent contends that said action was legiti-
mate, inasmuch as the form of protest utilized by
the alleged discriminatees exceeded the protective
mantle of the Act. In this respect, Respondent first
asserts that the walkout occurred under conditions
placing it on parity with the unannounced, repeated,
or intermittent work stoppages deemed unprotected
by established statutory precedent. See, e.g., Inter-
national Union, UA. WA., A.F of L., Local 232, et
al. v. Wisconsin Employment Relations Board, et al.,
336 U.S. 245 (1949); Pacific Telephone and Telegraph
Co., 107 NLRB 1547.
Contrary to the cited authority, however, the
conduct involved here was limited to a single spon-
taneous act against a background of unredressed
employee complaints concerning both climatic con-
ditions in the work place and the method of com-
pensation. As such, it more closely resembled that
which is protected on authority of N.L.R.B. v.
Washington Aluminum Company, Inc., 370 U.S. 9
(1962), than unannounced stoppages conducted over
a period of time with a sporadic, hit-and-run char-
acter. Nevertheless, the fact that the stoppage took
place only once and was not an extension of any
prior employee action does not end the inquiry for,
as I understand the precedent, participants in a
single stoppage may be fair game for legitimate dis-
cipline where the evidence demonstrates that "...
they joined with knowledge of its planned intermit-
tent and hit-and-run aspects." 107 NLRB at 1550.
See also, John S. Swift Company, Inc., 124 NLRB
394, 396-397 (1959). With this in mind, Respondent
observes that the dischargees walked out announc-
ing that they would return to work the next day
and did so without notifying Respondent of any
conditions that would have to be met in order for
them to end their protest. From this it is argued
that ". . . the alleged discriminatees were engaging
in an intermittent action program which was not
geared toward curing the ills allegedly present and
thereby transgressed the bounds of a genuine
strike." There is no merit in this view.
Pursuant to the Board's holding in Polytech, In-
corporated, 195 NLRB 695, 696 (1972), a single
spontaneous walkout is presumptively protected
strike activity and ". . . such presumption should be
deemed rebutted when and only when the evidence
demonstrates that the stoppage is part of a plan or
pattern of intermittent action which is inconsistent
with a genuine strike or genuine performance by
employees of the work normally expected of them
by the employer. "Contrary to Respondent, that
burden is not met by the fact that participants in the
instant strike agreed to return to work the next day
without imposing conditions." Such an inference
was rejected by the Board in Polytech, Incorporated,
supra, on grounds that, as here, the record includes
no ". . . conclusive evidence one way or the other
as to what the men would do in the future absent
any change in the conditions which prompted their
walkout." 195 NLRB at 696. Thus, as there had
been no prior stoppage, the intent of the strikers as
to the future remained undeclared, hence the pre-
sumption that the walkout was protected prevailed.
See Union Electric Company, 219 NLRB 1081, 1082
(1975). Nor is it of consequence that the dischargees
left work without reciting the conditions that the
employer would have to meet in order for them to
return to work. To hold otherwise is to resurrect
the view of the lower court rejected by the Su-
preme Court in N.L.R.B. v. Washington Aluminum
Co., supra. In this regard, the Court stated:
We cannot agree that employees 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 objectionable. [370 U.S. at
14.]
It would seem to follow that, if employees need not
recite a demand, they need not define the conditions
that would have to be met prior to their return to
work. In any event, at 370 U.S. 14, the Court went
on to caution against imposing technical require-
ments so as to thwart the rights guaranteed to unso-
phisticated employees stating as follows:
To compel the Board to interpret and apply . . .
language in the restricted fashion . . . would
only tend to frustrate the policy of the Act to
protect the right of workers to act together to
better their working conditions. Indeed, as indi-
cated by this very case, such an interpretation of
§ 7 might place burdens upon employees so great
that it would effectively nullify the right to
engage in concerted activities which that section
protects. The . . . employees here were part of a
small group of employees who were wholly un-
organized. They had no bargaining representative
and, in fact, no representative of any kind to
present their grievances to their employer. Under
these circumstances, they had to speak for them-
selves as best they could.
4. Delete the newly designated footnote 7.
5. Add the following as a new footnote 7; immediately
after "as to the Fowlers," at the end of paragraph 9:
1 Even assuming that Respondent maintained a firmly embed-
ded. published procedure for processing of employee wage com-
plaints, neither incidence thereof nor a plant rule forbidding en-
ployees from leaving the plant without permission would serve to
diminish the right of employees to withhold their labor where in
their judgment the estahlished process has failed to serve their in-
terest. As stated by the Supreme Court at 370 US. 16-17:
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor can we accept the company's contention that because it
admittedly had an established plant rule which forbade employ-
ees to leave their work without permission of the foreman,
there was justifiable "cause" for discharging these employees,
wholly separate and apart from any concerted activities in
which they engaged in protest against the poorly heated plant.
Section 10(c) of the Act does authorize an employer to dis-
charge employees for "cause" and our cases have long recog-
nized this right on the part of an employer. But this, of course,
cannot mean that an employer is at liberty to punish a man by
discharging him for engaging in concerted activities which § 7
of the Act protects. And the plant rule in question here pur-
ports to permit the company to do just that for it would prohib-
it even the most plainly protected kinds of concerted work
stoppages until and unless the permission of the company's fore-
man was obtained.
Even if not reduced to the immaterial by the above, the so-
called policy or practice concerning pay complaints was un-
written, not formally published, and was described by Fitzsim-
mons, himself, as dependent more upon what employees choose
to do than upon any consistent or required course they must
follow.
Accordingly, subject to the foregoing modifications,
and after full consideration of Respondent's post-hearing
brief, the findings, resolutions, conclusions, and recom-
mendations contained in the Decision issued by me on
March 3, 1982, are hereby affirmed.
880