E. R. Carpenter Co.

National Labor Relations Board - Board Decisions

Sep 9, 1980

252 N.L.R.B. 18 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. R. Carpenter Co. and Ann S. Atkinson. Case 9-
CA-13732
September 9, 1980
DECISION AND ORDER
On April 23, 1980, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, E. R. Carpen-
ter Co., Russellville, Kentucky, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
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.
The Administrative Law Judge erroneously found that the gloves of
the protective suits that employees Atkinson, McClusky, and Riggs were
required to wear were attached to the suits with tape, whereas the record
establishes that the gloves were not separable from the bodies (of the suits.
This error does not affect our affirmance of the Administrative Law
Judge's conclusions.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was heard in Russellville, Kentucky, on De-
cember 6 and 7, 1979, and on January 15 and 16, 1980.
The complaint, which issued on May 25, 1979, alleges
that Respondent violated Section 8(a)(1) of the Act by
discharging employees Ann S. Atkinson, Rosemary
McClusky, and Charlotte Riggs for engaging in protect-
ed concerted activities, that is, refusing to work on De-
cember 8, 1978, in equipment which they reasonably be-
lieved to be unsafe and unsanitary. Respondent entered
into a stipulation with General Counsel that, on the day
in question, the employees viewed their equipment as
"being both unsanitary and thereby unsafe," and because
the equipment was unsanitary this "would render it
unsafe to be worn." Respondent also conceded that the
employees were engaged in concerted activity when
they refused to work but denied that the concerted refus-
al was protected by Section 7 of the Act or that its dis-
252 NLRB No. 5
charge of the employees was an unfair labor practice.
The parties filed briefs which were received on or about
February 15, 1980.
Upon the entire record and from my observation of
the testimony and the demeanor of the witnesses, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Virginia corporation engaged in the
manufacture and sale of foam and foam-related products
at its Russellville, Kentucky, facility. During the 12
months prior to the issuance of the complaint, Respond-
ent sold and shipped goods and materials valued in
excess of $50,000 from its Russellville, Kentucky, facility
directly to points outside the Commonwealth of Ken-
tucky. Accordingly, I find, as Respondent admits, that it
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent's Russellville facility includes a building
identified as plant 2 where polyurethane foam is manu-
factured for a feminine hygiene product. Production on
this particular material began in or about March or April
1978. The foam producing process utilizes a conveyor
system which is encased in a plexiglass "train" to contain
gases-some toxic-which are released in the manufac-
turing process. The process begins when a liquid chemi-
cal is poured and combined with hydrogen chloride
which causes the liquid to turn into foam and to expand.
The process results in the release of toxic hydrogen chlo-
ride gas fumes. The plexiglass is removable in sections so
that employees can, when necessary, have direct access
to the foam or the conveyor. At such times, the employ-
ees wear respirators, raincoats, and gloves.
The foam rises in so-called buns inside the train and is
carried to a slitter where the buns are sliced horizontally
into 6-7 foot layers. The slitter is located at a point
where the train enters the "little building," an enclosed
plexiglass area about 6-feet high, 4-feet wide, and 6-feet
long. The little building is large enough for two employ-
ees. When the foam is slit it releases large amounts of
heat and gases including hydrogen chloride gas.
At this point in the production process it is necessary
for employees to enter the little building and pick up or
"destack" the layers of foam and place them on another
conveyor where they are cubed and stored. The atmos-
phere in the little building is highly toxic and very hot.
The temperature reaches heights of about 120 degrees
Fahrenheit. The employees who work in the little build-
ing-the destackers-are required to wear protective
safety equipment. They normally wear two-piece pres-
surized rubber suits (moon suits) which cover them com-
pletely. The moons suits include the body or "skin"
which covers the torso, arms, and legs, and a helmet or
18
E. R. CARPENTER CO
hood with a visor which fits over the head and shoulder
area. The destackers also wear gloves which are taped to
the suit as are the helmets. The destackers carry tanks of
compressed air on their backs. The tanks are connected
to the moon suits by plastic airhoses which provide for
breathing and cooling as well as pressure for the suits.
The destackers are permitted to work in the little
building for no longer than 2 hours at a time. They have
to be helped into their two-piece moon suits by another
employee.
At first, only four employees shared two moon suits:
Atkinson, McClusky, Riggs, and Brenda Tines. From
about April or May until October 1978 the Respondent
only operated on the first shift from 7 a.m. to about 3
p.m. The four destackers on the first shift alternated in
pairs. Only two worked in the little building at any one
time. When they were not destacking the employees did
maintenance or general cleanup work in their work area.
After October 1978, a second shift was added and four
additional destackers worked in the little building. The
second shift began at 3:30 and lasted until about 11:30
p.m. From October to December 8, 1978, there were
only two fully operational and working moon suits. They
were used by all eight destackers, four on each shift. Ap-
parently there were parts of other suits also available
but, when the second shift began, Respondent did not
insist that each destacker have her own moon suit. The
moon suits have a useful life of 3 to 5 weeks.
After the addition of the second shift, the first shift
destackers began complaining to management officials
that new moon suits were needed and the existing moon
suits could not last with the double utilization of the
suits. The destackers also complained almost constantly
about the foul smelling and unsanitary condition of the
moon suits. A cleaning program was instituted but did
not appear to be effective. The moon suits also devel-
oped holes which were taped with paper tape or "duct"
tape and sometimes retaped in an attempt to prevent the
fumes from entering the moon suits. The employees com-
plained to management that the holes were allowing the
toxic fumes to enter the suits causing rashes on their skin
and stains on their clothing. One of the helmets had split
in two at the point where the airhose was connected to it
and it had been taped and retaped. Thus, the employees'
complaints related not only to the cleanliness of the
moon suits, but to their safety, at least insofar as they
contended that the holes in the suits permitted fumes to
enter the moon suits.'
With respect to the condition of the moon suits generally and how
many moon suits were utilized and operational during the critical periods,
I credit the testimony of the employee witnesses who were candid and
honest witnesses. They testified in a detailed and knowledgeable fashion
and their testimony survived vigorous cross-examination. The testimony
of Respondent's witnesses on these points was not as precise, detailed, or
knowledgeable as that of the employees who worked in the suits every
day Supervisor Doug Skipper, who was the most reliable of Respond-
ent's witnesses, really did not have an opportunity to view the condition
of the moon suits closely and he did not know all of the safety equipment
in use. However, I note that Skipper specifically testified that the em-
ployees were concerned about the holes in the moon suits, thus corrobo-
rating the testimony of the employees that their concern was not only
that the moon suits were unsanitary but also that they were unsafe He
said that they complained to both him and Production Manager Vance
about the fumes coming into the moon suits and causing skin rashes and
Respondent's chief witnesses, Production Manager
David Vance and Plant Manager Ed Sanders did not
deny that the holes were caused by the toxic fumes or
that the holes were simply taped over. However, they
dismissed this condition as insignificant so long as there
was sufficient airflow from the airhoses into the moon
suits since the outward air pressure prevented the toxic
fumes from entering the moon suits. The employees testi-
fied that at times there was not a sufficient amount of air
flowing into the moon suits to fully "blow them up" or
expand them in order to keep the fumes out. McClusky
testified that one moon suit "had holes in it, it was dirty
and it was smelly. It would not inflate properly. The
moon suits stuck to us more or less. The airhose was in
such a poor condition that it literally would not allow
enough air to come into us for breathing." Sanders him-
self testified that he knew the gloves were too large for
the destackers' hands and that they had to tape the
gloves onto the moon suits, thus impeding the air flow.
All witnesses testified that throughout October, No-
vember, and December, employees Atkinson, Riggs, and
McClusky complained to supervisors about the condition
of the moon suits and the fact that fumes were entering
the moon suits through holes in the moon suits. The em-
ployees testified that their clothes were stained. One em-
ployee, Riggs, developed a rash on her arms which she
attributed to the fumes and, another employee,
McClusky, attributed breathing problems to the fumes.
Respondent's officials deflected most of the complaints
by general statements that new moon suits were on
order. At one point, the employees were told that new
two-piece moon suits would arrive on December 18,
1978.
2. The refusal to work and the discharges on
December 8
On Friday, December 8, 1978, when Atkinson,
McClusky, and Riggs arrived at work-Brenda Tines,
the fourth destacker on the first shift, was absent that
day-they found their moon suits lying on the floor with
the airhoses pulled out of the suits. They had not been
cleaned by the previous shift and were in foul-smelling,
unsanitary condition. The employees spoke among them-
selves and decided that the moon suits were in such bad
condition that they would not work in them. The em-
ployees summoned their leadman and told him the moon
suits were in such "bad shape" that they could not be
worn. The leadman agreed and he summoned Nathan
Wilson, the maintenance employee who was responsible
for keeping the moon suits in good maintenance and
repair. Wilson said that there was nothing he could do
and agreed that the moon suits were unsafe and un-
healthy. Wilson then summoned Supervisor Doug Skip-
per, who, in turn, summoned his superior, David Vance,
the production manager. The employees told Vance and
Skipper that they could not wear the moon suits. They
stated that the moon suits were in poor condition and
had not been cleaned. About this time, Ed Sarders, who
clothing stains He also corroborated the employees' testimony that they
told management officials that the moon suits would not last with eight
people using them instead of four.
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was serving his first day as plant manager, came onto the
scene. The employees complained to Sanders about the
condition of the moon suits and again refused to wear
them. Sanders and Vance offered to give them as much
time as they wanted to clean the moon suits. They also
offered to clean the moon suits themselves or have other
people clean them. The employees responded that clean-
ing the moon suits would not eliminate the holes. At no
time did Respondent's officials tell the employees that
they could clean the moon suits but would not be made
to wear them. They insisted that the employees wear the
moon suits.
After this initial conversation, the employees became
upset and Sanders told them to go to the restroom and
calm down. After a short period Sanders returned and
again approached the employees. They were cleaning the
area with brooms. He asked if they had reconsidered his
proposal to clean the moon suits, wear them, and resume
working. They again refused. Plant Manager Sanders tes-
tified that the employees complained at this time that the
moon suits were unsafe. They asked him to look at the
holes in the moon suits. The employees also asked Sand-
ers not "to pour"-not to start the manufacturing proc-
ess, and to let them clean up that day. Sanders refused.
They also offered to "destack the foam" according to
Supervisor Doug Skipper. They offered to work in rain-
coats, respirators, and gloves, outfits used by employees
occasionally to work temporarily in the little building or
in other gaseous areas. 2
The second confrontation between Sanders and the
employees apparently ended because it was time for a
break period. Shortly after the end of the break period,
the three employees were separately called into Sanders'
office asked once again to clean the moon suits and to
wear them. They refused. After another unsuccessful
effort to accommodate the employees in order to get
them to wear the moon suits, Sanders discharged each of
them. The discharges took place at or about 9:30 a.m.
No foam was poured during the day shift on Decem-
ber 8. During the early morning hours, according to
Sanders, there were problems "with another part of the
process," and there was no raw material available until
about 10 a.m. Later, according to Sanders, the manufac-
turing process could not proceed because of a flood in
the plant. Employees were sweeping water from the
floor. This difficulty continued through the beginning of
the second shift at 3:30 p.m. The pouring process began
at or about 5:30 p.m., 2 hours after the beginning of the
second shift.
According to Sanders, neither he nor anyone else
cleaned the moon suits on December 8. He did not order
the moon suits cleaned.3 However, the second-shift em-
ployees were told by their supervisor that the first-shift
employees were fired for refusing to wear the moon
suits. They were also told that new moon suits would be
received the following Monday. About 2 hours later the
2 This garb is ordinarily used by tampers, employees who stand outside
the conveying equipment and put their arms inside to tap on the foam in
order to aid in its expansion. The respirator does not cover the entire
face and Sanders regarded this equipment more dangerous than the moon
suits. He thus refused the employees' offer.
s Vance testified that the moon suits were cleaned.
production started on the second shift and the second-
shift destackers wore the old moon suits.
According to Respondent's witnesses, Sanders consult-
ed Division Manager Bill Easterling by telephone several
times during the morning of December 8. Easterling was
advised of the situation and he eventually approved the
discharges. Sanders also told Vance to try to get new
moon suits from any source as soon as possible. Sanders
testified, "I told David Vance to get on the phone and
contact every known safety equipment supplier in the
United States and try to find suits of any type, any type
of moonsuits." The discharged employees were told of
Vance's efforts. Vance was able to secure new moon
suits sometime in the afternoon on December 8 which
was after the discharges. These were one-piece moon
suits which, unlike the old moon suits, had the airhoses
completely attached to the suits and were able to be
fitted without help from a third person. Eight of the new
one-piece moon suits were air freighted to Nashville and
arrived at the plant on Monday. They were put into use
on Tuesday after certain adjustments were made. Ac-
cording to Vance, the fittings on the new moon suits
were "quite different" from those on the old moon suits
in "size and quality." 4 The same type of suit-with a fur-
ther modification-is still in use today. Respondent re-
ceived four previously ordered two-piece moon suits on
December 18, as scheduled, but the two-piece moon suits
remained in storage and were never used.
Since receipt of the new moon suits and to date each
of the eight destackers has had her own suit.
Sanders testified that Skipper and, perhaps, Vance
spoke against the discharges and suggested that he
simply suspend the employees for a so-called 3-day cool-
ing off period. Vance testified that he simply pointed out
the possibility of a 3-day cooling off period. Vance also
testified that he tried to replace the three destackers on
December 8, but could not find replacements.
On Monday, December 11, the three discharged em-
ployees were replaced by two former employees who
were recalled from layoff status and an employee who
was previously a janitor but who had occasionally filled
in as a destacker. The latter obtained the job under the
Respondent's regular bidding procedure. The fourth po-
sition was filled by destacker Brenda Tines who had
been absent on Friday but resumed her regular job on
Monday. Supervisor Skipper testified that on Monday he
asked Sanders to bring back the discharged employees
after a "three day cooling off period" because he knew
"they needed their jobs." Sanders refused.
B. Discussion and Analysis
It is well settled that an employer may not discharge
or discriminate against employees who protest-includ-
ing by virtue of a concerted refusal to work-their terms
or conditions of employment. N.L.R.B. v. Washington
Aluminum Company Inc., 370 U.S. 9 (1962). Such con-
duct by an employer violates Section 8(a)(1) of the Act
irrespective of motive. Falls River Savings Bank, 247
4 Earlier Vance had testified that the one-piece moon suits were
"easier to put on ... and they were cheaper."
20
E. R. CARPENTER CO.
NLRB No. 88, fn. 3 (1980). Respondent's actions in this
case fall squarely within the principles set forth in Wash-
ington Aluminum and related cases. See, e.g., N.LR.B. v.
Modern Carpet Industries, Inc., 611 F.2d 811 (10th Cir.
1979), enfg. 236 NLRB 1014 (1978); Audio Systems, Inc.,
239 NLRB 1316 (1979); Union Boiler Co., 213 NLRB 818
(1974), enfd. 530 F.2d 970 (4th Cir. 1975); Roadway Ex-
press, Inc., 217 NLRB 278, 279-280 (1975), enfd. 532
F.2d 751 (4th Cir. 1976).
It is clear on this record that the employees were en-
gaged in concerted protected activity. Their complaint
about the condition of their safety equipment concerned
"conditions of employment" within the meaning of
Washington Aluminum Co. As the employees in Washing-
ton Aluminum, they had "no bargaining representative
and, in fact, no representative of any kind to present
their grievances to their employer . . . [T]hey had to
speak for themselves as best they could." As the employ-
ees in Washington Aluminum, they had repeatedly com-
plained about the objectionable condition of their safety
equipment. Moreover, as Washington Aluminum makes
clear, that employees' complaints are not specific, that
the employer makes some attempt to resolve the com-
plaints, and that the employees' actions seem unwise are
not relevant factors in determining whether the activity
is protected and thus immune from employer retaliation.
Nor were the activities of the employees herein removed
from the protection of the Act because of the exceptions
recognized by Washington Aluminum for conduct which
is "unlawful," "violent," in "breach of contract," or "in-
defensible" because it "show[s] a disloyalty to the work-
ers' employer which .. [is] unnecessary to carry on the
workers' legitimate concerted activities." (370 U.S. at
17.) The employees' refusal to work in a toxic atmos-
phere in deteriorating moon suits was in no way unlaw-
ful or indefensible "by any recognized standards of con-
duct." (Ibid.) On the contrary, the employees herein had
a good-faith belief that their working conditions were
dangerous and this alone rendered their activity protect-
ed. See N.L.R.B. v. Modern Carpets, supra. They had
complained about the condition of the moon suits before
and on December 8. The evidence shows that they were
concerned not only about the unsanitary nature of the
moon suits, but also about the holes in the moon suits
and the possibility that toxic fumes were passing through
the holes. Indeed, to paraphrase the observation made by
the Supreme Court in Washington Aluminum, the em-
ployees' protests herein, "are unquestionably activities to
correct conditions which modern labor management leg-
islation treats as too bad to have to be tolerated in a
humane and civilized society like ours." 370 U.S. at 17.
It is also clear on this record that Respondent dis-
charged the three destackers because of their concerted
protected activity. The activity-their refusal to work-
was admittedly concerted. Concerted refusals to work
are, of course, the basic protest recognized by American
labor law and they are protected if directed, as here, to
resolving work-related disputes. It cannot be doubted
' See also Whirlpool Corp. v. Marshall. 48 L.W. 4189 (Feb. 26. 1980),
where the Supreme Court upheld the validity of an OSHA regulation
which permits an employee to refuse a work assignment which he rea-
sonably believes exposes him to risk of death or serious injury.
that the employees refused to work in the moon suits be-
cause they believed that the moon suits were in poor
condition. Finally, it is clear that Respondent fired the
employees for this protest. Plant Manager Ed Sanders
admitted he discharged the employees for refusing to
work in protest over the condition of the moon suits. He
testified quite plainly as follows: "The reason I dis-
charged [the destackers] was because they refused to
clean the suits and to wear them." Division Manager
Easterling's testimony is equally revealing. He empha-
sized that the employees were discharged because Re-
spondent could not "allow three employees to say we
will not do the work they are assigned." Of course, all
strikes involve refusals to work and an employer's insis-
tence that such refusals to "follow orders" constitute in-
subordination is contrary to basic Section 7 rights. Thus,
the Supreme Court made quite clear in Washington Alu-
minum, supra, that an employer may not invoke a com-
pany rule prohibiting employees from leaving the plant
without permission to justify the discharge of employees
who engage in protected work stoppages. To read such a
rule-or one on insubordination-in such a way as to vi-
tiate a strike or a refusal to work would eviscerate Sec-
tion 7 of the Act.6
Respondent's contention that the employees here were
engaged in a partial strike is without merit. The Board
has long recognized a limited exception to otherwise
protected activity where employees engage in work stop-
pages which are "partial," "intermittent," or "recurrent."
These work stoppages are not protected by Section 7 of
the Act because they produce "a condition that [is] nei-
ther strike nor work." Valley City Furniture Company,
110 NLRB 1589, 1594-95 (1954), enfd. 230 F.2d 947 (6th
Cir. 1956). The Board has stated to countenance such
conduct, would be to allow employees "to do what we
would not allow any employer to do; that is, unilaterally
determine conditions of employment." Valley City Furni-
ture, Co, supra, 110 NLRB at 1594-95. The cases show a
disfavor for a "strike on the installment plan." C.G. Conn
Limited v. N.L.R.B., 108 F.2d 390, 396 (7th Cir. 1939).
See also International Union, U.A. W., A.F. of L.. Local
232, e al. v. Wisconsin Employment Relations Board et al.,
1366 U.S. 245 (1949)(26 "special meetings" called during
working hours by union over 5-month period). In short,
this limited exception to the broad guarantees embodied
in Section 7 of the Act does not authorize an employer
to use the penalty of discharge to punish employees for
engaging in a single, concerted work stoppage of limited
duration in protest over working conditions. See
N.L.R.B. v. Washington Aluminum Co.. supra, 370 U.S.
at 17.
The employees herein were not engaged in a partial
strike or repeated work stoppages within the meaning of
' The employees' protest is not rendered unprotected simply because
the employees were not well enough versed in labor relations to engage
in a ritualistic walkout. Their refusal to work was as much protected as a
full fledged walkout. Indeed, according to Respondent's witnesses, there
were other problems-lack of raw materials and flooding-which pre-
vented the initiation of the manufacturing process on December 8. This
evidence offers even stronger support for the violation for it suggests that
the discharges were based entirely on the employees' protest irrespective
of whether work was available or whether there was a refusal to work.
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cited cases. Respondent's contention that the employ-
ees expressed a "desire" to perform their jobs in a
manner inconsistent with the instructions of management
falls far short of the action inherent in a partial or recur-
rent work stoppage. The employees' suggestions that
they work in other protective garb or that they be limit-
ed to general cleanup were efforts to resolve the dispute
by negotiation and were treated as such by the Respond-
ent. Easterling expressed the view that the attempts to
resolve the dispute had reached an impasse and Sanders
himself referred to "proposals" and "appeasement" in de-
scribing his discussions with the employees. At no time
did the employees usurp the role of the employer and ac-
tively and defiantly perform some but not all of their
work while insisting that they be paid for such tactics.
Indeed, in their desire to perform their jobs, the employ-
ees offered to work in other protective garb. Their con-
cern was that they work in safe and sanitary equipment
but they were at all times willing to work. Finally, Re-
spondent's argument, at least insofar as it refers to em-
ployees doing general cleanup, is specious. Respondent
agrees that the destackers were fired between 9:15 and
9:35 a.m., but Sanders testified that production was de-
layed "until about 10:00" because of problems with raw
materials. 7
Nor does the instant case present any of the other situ-
ations which render an employee protest unprotected.
The employees did not engage in a "sit down" strike or
a refusal to leave the premises. Indeed, prior to discharg-
ing the employees, Respondent neither directed them to
leave the premises nor treated them as strikers which it
was clearly entitled to do. Of course, as strikers, the em-
ployees would forfeit their pay and could be replaced,
but they remain employees under the Act and may not
be discharged. Instead of sending the employees home
and using replacements Respondent discharged them for
their protest. This it could not do. See Masonic and East-
ern Star Homes, 206 NLRB 789 (1973), enfd. 77 LC ¶ 10,
883 (D.C. Cir. 1975). As then-Chairman Miller stated in
that case, "the [employer's] express concern for discharg-
ing the employees . . . was not for any alleged trespass
or sitdown strike, but for not going to work. This [the
employer] may not do." (206 NLRB at 791, fn. 7.) Those
remarks apply as well to Respondent's conduct in the in-
stant case.
I The cases cited by Respondent are inapposite. Several of the cases
involve a concerted refusal to work overtime--conduct which is pre-
sumptively protected. But, even in refusals to work overtime, the refusals
are protected unless the employees engage or threaten to engage in re-
peated work stoppages limited to a portion of the working day. See First
National Bank of Omaha, 171 NLR 1145 (1968), enfd. 413 F.2d 921 (8th
Cir. 1969), and Polyrtech, Incorporated, 195 NLRB 695 (1972), distinguish-
ing the overtime cases cited by Respondent in support of its position.
Two other cases cited by Respondent involved the same basic tactic-
i.e., actively engaging in a partial strike-and were also distinguished in
First National Bank and Polytech. They are also clearly distinguishable
from the situation presented here because there, unlike here, the employ-
ees usurped the employer's role and dictated the conditions under which
they worked. In N.L.R.B. v. Montgomery Ward & Co., 157 F.2d 486 (4th
Cir. 1946), the employees stayed at their jobs but refused to handle cer-
tain struck work. In Home Beneficial Life Insurance Company Inc. v
N.L.R.B., 159 F2d 280, 286 (4th Cir. 1947), cert. denied 332 U.S. 758
(1948), the employees drew their pay while refusing to carry out part of
their duties.
Respondent also argues that no genuine issue of safety
existed because the employees did not consider the moon
suits to be unsafe but only unsanitary. This is, of course,
a distinction without a difference because the unsanitary
nature of the suits was as much a working condition as
the safety of the suits. The employees were thus within
their Section 7 rights to protest the condition of the
moon suits whether or not safety was involved. Howev-
er, Respondent is wrong on the facts as well. The evi-
dence clearly indicates a concern with safety insofar as
the complaints, both before and on December 8, related
to the holes in the suits and the allegation that toxic
fumes were entering the suits. Plant Manager Sanders
himself testified that on December 8 the employees told
him that the suits "cannot be safe." Indeed, although not
necessary to the resolution of this issue, I find that the
moon suits were in fact unsafe on December 8, 1978. Re-
spondent took them out of service two working days
later because they were unusable. Vance testified that the
moon suits were replaced because the old moon suits
were unusable and not because they were dirty. This fact
supports the overwhelming credited testimony of the em-
ployees that the suits were in such poor condition as to
be unsafe. Finally, it is well settled that the Board in as-
sessing Section 7 rights does not pass on the reasonable-
ness of work related complaints. The only requirement is
that the complaint was made in "good faith." See,
N.L.R.B. v. Modern Carpet Industries, supra, 611 F.2d
811. Respondent in effect concedes, as it must, that the
employees' complaints were made in good faith. Re-
spondent stipulated that the employees viewed the moon
suits as "being both unsanitary and thereby unsafe." That
the employees put up with suits in bad condition for
some months, complained about them consistently, and
offered to work either in other protective garb or to do
other jobs demonstrates their good faith. The frenzied
effort of Respondent to replace the suits on December 8
and its actual replacement of them two working days
later demonstrates not only the good faith of the employ-
ees but also the reasonableness of their complaints.8
Finally, I reject Respondent's contention that the em-
ployees were fired for refusing to clean the moon suits as
opposed to refusing to wear them. As I have indicated,
Sanders made it clear that the discharge was for refusing
to wear the suits. Moreover, Second-Shift Supervisor
Ray Rager testified that he told his destackers that the
first-shift destackers had been fired for refusing to wear
the moon suits. He also testified that he did not know
whether his group of employees cleaned the moon suits
before they wore them that day. But he told them that
new moon suits had been acquired and would be at the
a Respondent's contention that the employees' dispute was not with
management but with the "second shift girls" (because of their statement
that the latter did not adequately clean the moon suits) is specious. The
complaint of the destackers was directed to the condition of the moon
suits, generally, including the holes in the moon suits, and the fact that
Respondent was forcing them to work in moon suits which were in bad
condition. Indeed, two working days later, new suits were put into use
and employees never again shared moon suits. Employees were assigned
to their own moon suits which they were required to keep clean. A more
dramatic reaction by an employer to justifiable work-related complaints
could hardly be envisaged.
22
E. R. CARPENTER CO.
plant on Monday. Vance testified that the new moon
suits were ordered to replace suits which were not usable
not simply to replace moon suits which were dirty.
Thus, the very fact that the new moon suits were or-
dered in such a frenzy on December 8 and put into use
as soon as adjustments could be made illustrates that Re-
spondent itself viewed the suits as no longer usable and
not merely dirty.
The three employees, whom I found to be candid and
honest witnesses, testified that they were asked to clean
the suits but that they did not flatly refuse to clean them.
Sanders and Vance testified that they did indeed refuse
to clean the suits. Skipper's testimony is unclear on this
issue. He testified that the employees were told that
other people would "help" clean the suits until they
were satisfied of their cleanliness and "we would go
ahead and work and the girls refused."
Significantly, as Vance admitted, at no time were the
employees told that they could clean the suits but would
not have to wear them. Moreover, Sanders' testimony
makes quite clear that he did not ask them to clean the
suits but not wear them. Indeed, the fact that Sanders
specifically offered to have other people, including him-
self, clean the suits refutes any inference that his concern
was that they merely clean the suits as opposed to wear-
ing them. No alternative to not wearing the moon suits
was acceptable to him. Thus, a fair interpretation of the
testimony of Respondent's witnesses, including that of
Skipper, is that the request to clean the moon moon suits
was always tied to the requirement that the employees
thereafter wear the moon suits. The employees under-
stood the request that they clean the moon suits to be for
the purpose of making them wearable, and, at no time,
did any of Respondent's officials do anything to negate
this understanding. All witnesses testified that the em-
ployees were upset and Respondent reacted to the situa-
tion by ordering new suits. From observing the demea-
nor of all the witnesses, it is my view that the employees
honestly and credibly testified that they did not refuse to
clean the moon suits insofar as it could be construed as
an unconditional request. However, at no time was the
request an unconditional one. It was always conditioned
on the employees thereafter wearing the moon suits. Al-
though the employees may have refused to clean and
wear the moon suits, they were never asked to clean the
suits without the additional condition that they also
thereafter wear the moon suits and, thus, I find that the
employees did not specifically refuse to clean the moon
suits apart from the request that the moon suits be worn.
To the extent that the testimony of Sanders and Vance
can be read to suggest anything different I reject their
testimony. They did not impress me, in their demeanor,
as candid witnesses. Rather they seemed to testify in a
self-serving manner. Sanders, in particular, was not a re-
liable witness. For example, Sanders was guarded in an-
swering questions concerning whether he considered re-
calling the employees after obtaining the new moon suits
and only reluctantly conceded that the employees com-
plained about the safety of the suits on December 8. He
was particularly interested in emphasizing-sometimes
with the aid of leading questions from counsel-that he
fired the employees for refusing to clean the moon suits.
Yet, he admitted that he also fired them for refusing to
wear the moon suits and he never told the employees
they could clean the moon suits but not wear them. It is
clear from his entire testimony that he was most con-
cerned with the employees' refusal to wear the moon
suits. In addition, it appeared that both Sanders and
Vance contrived about the impact of the destackers' re-
fusal to work on production. At times they suggested
that production was impeded by other unrelated factors
and at times they blamed lack of production on the des-
tackers. This not only reflects adversely on their testimo-
ny but also refutes any argument that they were con-
cerned solely with getting the suits cleaned. Moreover,
Sanders conceded in his testimony that his "proposals"
for the employees to clean the suits constituted "a sort of
appeasement" to coax them into wearing the suits. His
other proposals-that he or the janitors clean the suits-
demonstrate his lack of concern that the destackers
themselves clean the moon suits. Indeed, he testified that
neither he nor anyone else cleaned the moon suits for the
destackers before they were discharged. Finally, Sanders'
insistence that the moon suits were not beyond repair on
December 8 was simply self-serving and implausible in
light of Respondent's frenzied effort to get new moon
suits that very day and its actual use of new moon suits
as soon as necessary adjustments could be made. Indeed,
Sanders' attempt to downplay the condition of the moon
suits beyond their uncleanliness is really contrary to that
of his own supervisor, Skipper, who candidly testified
that the employees consistently complained about the
holes in the moon suits. I also note that Sanders and
Vance contradicted each other in several instances. For
example, Sanders testified that the moon suits were not
cleaned on December 8; Vance testified they were. Sand-
ers seemed to deemphasize the need for production on
December 8; Vance said this was mentioned to the des-
tackers in an effort to get them to wear the moon suits.
Even assuming, however, that the testimony of Vance
and Sanders is accepted on this point, the refusals of the
destackers to clean the moon suits would have been in
the context of refusing both to clean and thereafter to
wear the moon suits. At no time were the employees
presented the option of cleaning the moon suits but not
wearing them. Respondent put no great stock in having
the moon suits cleaned and indeed replaced them, as un-
usable, as soon as it could get replacements. Respond-
ent's concern was that the employees wear the moon
suits. Thus, the refusal to clean the moon suits was part
and parcel of the refusal to wear them and did not strip
the employees of the protection of the Act.
CONCLUSIONS OF LAW
I. By discharging employees Ann S. Atkinson, Rose-
mary McClusky, and Charlotte Riggs for engaging in
protected concerted activities, Respondent has violated
Section 8(a)(1) of the Act.
2. The said unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in the
unfair labor practices set forth above, I will recommend
that it cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act. Respondent will be ordered to reinstate Ann S. At-
kinson, Rosemary McClusky, and Charlotte Riggs to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions of employment and to
make them whole for any loss of wages and other bene-
fits they may have suffered as a result of their unlawful
discharges with such losses to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and with interest as set forth in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 9
Upon the foregoing findings of fact and conclusions of
law, and in accordance with Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER l 0
The Respondent, E. R. Carpenter Co., Russellville,
Kentucky, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Discharging, disciplining, retaliating against, or
otherwise interfering with, restraining, or coercing em-
ployees in the exercise of their Section 7 rights under the
National Labor Relations Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action:
(a) Offer Ann S. Atkinson, Rosemary McClusky, and
Charlotte Riggs immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges previously enjoyed,
and make them whole for any loss of earnings they may
have suffered 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-
9 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
o1 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.
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Russellville, Kentucky, facility copies of
the attached notice marked "Appendix." " Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by the 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 insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days of the date of the Order, what steps
have been taken to comply herewith.
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."
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 opportunity 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 or-
dered us to post this notice.
WE WILL NOT discharge, discipline, retaliate
against, or otherwise interfere with, restrain, or
coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights guaranteed under Section 7
of the Act.
WE WILL immediately reinstate Ann S. Atkinson,
Rosemary McClusky, and Charlotte Riggs to their
formers jobs and reimburse them, with interest, for
any losses they may have suffered because of our
unlawful discharge of them for refusing to work in
unsafe and unsanitary equipment.
E. R. CARPENTER CO.
24